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HomeMy WebLinkAboutSubmittal-District 2-Memorandum of Law Ultra permit for alcoholic beveragesMEMORANDUM OF LAW Submitted into the public record in connection with item 'T 3 on (-f I2LI I IL.1 City Clerk 1. Lack of Prior Enforcement Does Not Estop the City From Enforcing Sec. 38-115(b) or Sec. 38-70(c) Sec. 38-115(b) provides that there shall be no permits for alcoholic beverages issued in connection with a musical event of the type which requires extraordinary security measures. Specifically, Section 38-115(b) provides, "There shall be no such permits [permit for the sale or dispensing of alcoholic beverages, including beer and wine] issued in connection with a hard rock, rap, heavy metal, or other musical event of the type which requires extraordinary security measures." Section 38-70 governs the sale or dispensing of beer and/or wine for special events or programs in city parks (including Bayfront Park). Section 38-70(c) provides, "Unless approved by the city commission, there shall be no permits issued in connection with any musical event or program of the type which historically requires extraordinary security measures, based upon prudent police protection (commonly referred to as "rock concerts")." The City's apparent lack of prior enforcement of Sections 38-115(b) and 38-70(c) in connection with the Ultra festival does not render those Sections any less enforceable now. The City is not estopped from enforcing Sections 38-115(b) and 38-70(c). Generally, the failure of a city to enforce a zoning regulation in one or many cases, does not affect the city's power to enforce the law at issue in others. Stocks v. Lee, 198 So. 211, 212 (Fla. 1940) ("It is also recognized as a generally established principle of law that the acquiescence of the municipal authorities in the violation of an ordinance or regulation is no defense. In other words, that the failure of the authorities to enforce the ordinance against others constitutes no defense in favor of one who is prosecuted under such ordinance."); City of Miami Beach v. Lincoln Investments, Inc., 214 So.2d 496 (Fla. 3d DCA 1968) ("Appellee argues that the finding of the trial court that the city has allowed 'special liquor service bar licenses, as exceptions to the population limitations' and has previously granted special liquor service bar licenses in the area where the relator has sought such a license amounts to a finding that the ordinance itself is arbitrary and unreasonable and a denial of equal protection of the law. We think this does not follow. The failure of a governing authority to enforce the law properly is not a ground for the courts to disregard that law."); Ross v. City of Miami, 205 So. 2d 545, 547 (Fla. 3d DCA 1968) ("The trial court accepted as fact the plaintiffs assertion that the city, in other instances, had granted variances for use of property for gasoline service stations notwithstanding the 750-foot distance restriction, but held that was 'no criterion to a determination of this case,' citing as authority the case of City of Miami Beach v. State ex rel. Patrician Hotel, 145 Fla. 716, 200 So. 213, in which it was DRAFT 1 I - Co 3? occSvc N l ►=- ► - L- I15A- -to- 2- Mc+m um oc LCAW u-t+Yc, perm i + a+ Lovlo I i c bevor0,5,t s held that the failure of a city in one case, or in many cases, to enforce regulations of an ordinance enacted under the police power, does not preclude the enforcement thereof in other cases."); City of Miami v. Walker, 169 So.2d 842 (Fla. 3d DCA 1964), cert. denied, 176 So.2d 511 (FIa.1965) ("We observe that the chancellor placed considerable weight, as do the appellees, upon the fact that the City of Miami has permitted several hundred filling stations within the distance prohibitions of the ordinance and has granted some 75 variances from this requirement. Although great weight has been placed on this fact by the chancellor and the appellees, nevertheless it is without a conclusion that the city has waived or is otherwise equitably estopped from enforcing the terms of the ordinance. Whether the city has permitted several hundred or only a few filling stations to be within the prohibited distance requirement of the ordinance is conclusive of nothing insofar as appellees are concerned."). Note that City of Miami v. Walker, Ross v. City of Miami and City of Miami Beach v. Lincoln all rely upon City of Miami Beach v. State ex rel. Patrician Hotel Co., 200 So. 213 (Fla. 1941), in which the Florida Supreme Court held, "[t]he ordinance is a police regulation and it is elementary that the failure to enforce a valid police regulation in one case, or in many cases, does not affect the power to enforce it in other cases."' Equitable estoppel against the City. In Monroe County v. Hemisphere Equity Realty, Inc., 634 So. 2d 745 (Fla. 3d DCA 1994), the Third District held that lax enforcement against third parties did not estop the government from enforcement under the facts of that case. The Court stated: The trial court erred in ruling that Monroe County was equitably estopped from enforcing its regulations that established a completion period for major development. The evidence, viewed in a light most favorable to the developer, does not support a finding of estoppel. Equitable estoppel is to be applied against the state only in rare instances and under exceptional circumstances. To sustain a claim of estoppel against the state or one of its subdivisions, there must be (1) 1 Note that City of Miami Beach v. State ex rel. Patrician Hotel Co., 200 So. 213 (Fla. 1941), was overruled in part on other grounds by City of Miami v. Kichinko, 22 So. 2d 627 (Fla. 1945). The Patrician case continues to be cited and the Kichinko case overruled the Patrician case on other grounds. See, 2A Fla. Jur 2d Alcoholic Beverages § 62 ("Failure of the municipality in one instance, or even in several instances, to enforce an ordinance restricting the location of a retail liquor businesses in a given area does not affect its power to enforce the ordinance in other cases.") (citing City of Miami Beach v. State ex rel. Patrician Hotel Co., 145 Fla. 716, 200 So. 213 (1941) (overruled in part on other grounds by, City of Miami v. Kichinko, 156 Fla. 128, 22 So. 2d 627 (1945)).). The Kichinko case affirmed a trial court's decision that a City of Miami liquor ordinance was invalid. The basis of the Kichinko decision was that municipalities possess only such power as is conferred by express or implied provisions of law and that the Legislature, in enacting the State Beverage Law, intended to inhibit all powers of a municipality over the subject of intoxicating liquors, except those powers specifically enumerated therein. DRAFT 2 Submitted into the public record in connection with item DI.3 on 04/24/14 City Clerk a representation as to some material fact by the party estopped to the party claiming estoppel; (2) reliance upon the representation by the party claiming estoppel; and (3) a change in such party's position caused by his reliance on the representation to his detriment. Furthermore, the act on which the aggrieved party relied must be one on which he had a right to rely. Calusa Golf, Inc. v. Dade County, 426 So.2d 1165, 1167 (Fla. 3d DCA 1983) (citations omitted). No such rare instance or unusual circumstance exists in this case. Even if the County had been lax in its enforcement of its regulation as against other developers, Texas Largo was not entitled to rely on the County's failure to enforce its regulations against third parties. See Calusa Golf, 426 So.2d at 1167 (stranger to transaction on which alleged estoppel arises cannot rely on representations made to third parties). Furthermore, the act giving rise to the alleged estoppel "must include some positive act on the part of some officer of the state upon which the aggrieved party had a right to rely and did rely to its detriment." Ogden v. State Dept. of Transportation, 601 So.2d 1300, 1302 (Fla. 3d DCA 1992) (emphasis added) (quoting Greenhut Constr. Co. v. Henry A. Knott, Inc., 247 So.2d 517, 524 (Fla. 1st DCA 1971)). Here, the trial court misconstrued the legal doctrine of equitable estoppel when it ruled that Texas Largo was entitled to proceed with its development based upon the County's failure to act against third parties. Estoppel not applicable to transactions which are forbidden by ordinance. The estoppel principal may not apply here because the Third District has recognized that estoppel generally has no application to transactions that are forbidden by municipal ordinance. In Brickell Bay Club Condominium Ass'n v. Hemstatdt, 512 So. 2d 994, 996 (Fla. 3d DCA 1987), the court held: A starting point in this review of the law of waiver and estoppel is the authorities which hold that the estoppel principle generally has no application to transactions which are forbidden by statute or ordinance or which are contrary to public policy. State ex rel. Schwartz v. City of Hialeah, 156 So. 2d 675 (Fla. 3d DCA 1963); Confederation Life Ass'n v. Conte, 254 So.2d 45 (Fla. 3d DCA 1971), quashed on other grounds, 272 So.2d 130, cert. denied, 410 U.S. 959, 93 S.Ct. 1422, 35 L.Ed.2d 693. Estoppel is an equitable doctrine which is applied only where to refuse its application bRAFT 3 Submitted into the public record in connection with item D1.3 on 04/24/14 City Clerk would be virtually to sanction the perpetration of a fraud. McAllister Enterprise Inc. v. McAllister Hotel, Inc., 219 So.2d 114 (Fla. 3d DCA 1969). In State ex rel. Schwartz v. City of Hialeah, 156 So. 2d 675 (Fla. 3d DCA 1963), the court stated: No clear legal duty appears on the municipality requiring it to issue a beverage license to the relator but, to the contrary, the record affirmatively discloses that the City would be in violation of its own ordinances prohibiting the issuance of an alcoholic beverage license within 1,500 feet of a church. Counsel for the appellant has also urged the doctrine of estoppel as being applicable in the instant case, even though it is conceded that to issue the license in question would violate the ordinances of the municipality. The Supreme Court of Florida has held that the doctrine of estoppel is not applicable in transactions which are forbidden by statute or which are contrary to public policy. See: Montsdoca v. Highlands Bank & Trust Co., 85 Fla. 158, 95 So. 666. If the doctrine of estoppel is not applicable to transactions which are forbidden by statute, it should not be applicable to transactions or matters which are prohibited by municipal ordinances. This rule, applicable to prohibitory ordinances, would not necessarily be applicable to ordinances wherein the officials of a municipality had discretion in exercising their authority." See also, Dade County v. Gayer, 388 So. 2d 1292, 1294 (Fla. 3d DCA 1980) (court held that doctrine of equitable estoppel could not be asserted against county to sanction acts which were prohibited by zoning regulations; "While at first blush it seems that the application of the rule may be harsh, it would be inconceivable that public officials could issue a permit, either inadvertently, through error, or intentionally, by design, which would sanction a violation of an ordinance adopted by the legislative branch of the government. Only the duly constituted members of the Metropolitan Dade County Commission enjoy that prerogative and then only in accordance with established procedure."). SUBMTTED INTO THE rUB1JC RECORD FOR DRAFT 4