BEACH TOWING SERVICES, INC.

v.

SUNSET LAND ASSOC.

Before: WALSH, TRAWICK and REBULL, JJ. [*1] TRAWICK, J.

Petitioner, Beach Towing Services, Inc. ("Beach Towing"), seeks to quash a December 7, 2018 Order of the Design Review Board (the "DRB") of the City of Miami Beach (the "City"), which approved an Application by Sunset Land Associates, LLC ("Sunset") and which the City Commission unanimously affirmed (the "Commission's Order").

On October 10, 2017, Sunset filed a Land Use Board Hearing Application (the "Application") requesting Conditional Use approval for a five-story mixed use project containing both residential and commercial uses (the "Project"). The Project was to be developed on 0.77 acres located at 1733, 1743, 1747, and 1759 Purdy Avenue, and 1724, 1738, and 1752 Bay Road, Miami Beach, Florida (the "Subject Properties"). Sunset is the owner of three of the Subject Properties, while SH is the owner of five of these Subject Properties. Beach Towing is the lease holder and licensed business owner of a property located at 1349 Dade Boulevard, Miami Beach, Florida, which is across the street from the proposed Project. The DRB heard the Application and rendered the Final Order. This petition followed.

STANDING

"The issue of standing is a threshold inquiry which must be made at the outset of the case before addressing [the merits]." Ferreiro v. Philadelphia Indem. Ins. Co., 928 So. 2d 374, 376 (Fla. 3d DCA 2006). "A plaintiff must demonstrate the existence [*2] of an actual controversy between the plaintiff and the defendant in which plaintiff has a sufficient stake or cognizable interest which would be affected by the outcome of the litigation in order to satisfy the requirements of standing." Matheson v. Miami- Dade Cty., 258 So. 3d 516, 519 (Fla. 3d DCA 2018) (citing Warren Tech., Inc. v. Carrier Corp., 937 So. 2d 1141, 1142 (Fla. 3d DCA 2006)).

Beach Towing claimed standing below based upon; 1) holding a long-term lease and being a licensed business owner of a property located within 375 feet of the subject Property, and 2) based upon its appearance through counsel before the DRB. While this may be sufficient to confer standing before the DRB under the City Code, neither is sufficient to confer standing upon Beach Towing to seek judicial review. "The fact that a person may have the requisite standing to appear as a party before an agency at a de novo proceeding does not mean that the party automatically has standing to appeal." Martin County Conservation Alliance v. Martin County, 73 So. 3d 856, 861 (Fla. 1st DCA 2011) (citation omitted).

Beach Towing fails to point to a "special injury" or any other injury in its Petition which would be sufficient to confer standing before this Court. See Leibman v. City of Miami, 279 So. 3d 747, 751 (Fla. 3d DCA 2019) ("special injury" necessary to confer standing). The Florida Supreme Court has stated that:

There are three requirements that constitute the "irreducible constitutional minimum" for standing. (citation omitted) First, a plaintiff must demonstrate an "injury in fact," which is "concrete," [*3] "distinct and palpable," and "actual or imminent." (citation omitted) Second, a plaintiff must establish "a causal connection between the injury and the conduct complained of." (citation omitted) Third, a plaintiff must show "a substantial likelihood' that the requested relief will remedy the alleged injury in fact." State v. J.P., 907 So. 2d 1101, 1113 n. 4 (Fla. 2004). Beach Towing failed to meet any of these requirements. The errors alleged in the City forms did not materially impair nor effect the DRB's approval of the Application or the Commission's subsequent affirmation of the DRB's decision on appeal.

Additionally, "[w]hen the alleged error is procedural, as in this case, the petitioner must demonstrate that the error is fundamental error. Non-fundamental errors of procedure cannot be the subject of a proceeding for writ of certiorari...." Gulf Cities Gas Corp. v. Cihak, 201 So. 2d 250, 251 (Fla. 2d DCA 1967). The crux of Beach Towing's argument is that SH purportedly was not an Applicant. At no time did Beach Towing's counsel maintain that Beach Towing was prevented from fully preparing and presenting its objections at hearings, or that Beach Towing was prejudiced in any other manner due to this purported omission.

We find that Beach Towing lacks standing to challenge either the Order of the DRB or the subsequent order of the Commission.

ABANDONMENT OF CHALLENGE TO CITY COMMISSION ORDER

Even if SH had standing to challenge the DRB and Commission orders, a party abandons any issue that was not raised in the initial petition. Hall v. State, 823 So. [*4] 2d 757, 763 (Fla. 2002); J.A.B. Enter. v. Gibbons, 596 So. 2d 1247, 1250 (Fla. 4th DCA 1992). Beach Towing failed to challenge the City Commission's Order in its petition. Instead, it presented arguments that only addressed the original DRB Order. They are therefore precluded from making argument regarding the Commission's order now.¹

ANALYSIS OF THE PETITION'S SUBSTANTIVE ARGUMENTS

Certiorari review by this Court typically requires a determination as to whether: (1) procedural due process was accorded, (2) the essential requirements of the law were observed; and, (3) the administrative findings and judgment were supported by competent substantial evidence. City of Deerfield Beach v. Vaillant, 419 So. 2d 624, 626 (Fla. 1982).

With regard to due process, "[a] quasi-judicial hearing generally meets basic due process requirements if the parties are provided notice of the hearing and an opportunity to be heard." Jennings v. Dade County, 589 So. 2d 1337, 1340 (Fla. 3d DCA 1991). Additionally, "the parties must be able to present evidence, crossexamine witnesses, and be informed of all the facts..." Id. The City provided notice by publication, mail and posting. Miami Beach Code of Ordinances section 118-8, N 1 If in fact Beach Towing had intended to challenge the City Commission order, they failed to provide a sufficient record of the administrative proceedings before the Commission for appellate review. "An appellate court cannot reverse a decision in the absence of a sufficient record" Kass Shuler, P.A. v. Barchard, 120 So. 3d 165, 168 (Fla. 2d DCA 2013). [*5] which sets forth the City's notice requirements for quasi-judicial public hearings, does not require that the Applicant be identified in the notice. It only requires "a description of the request, and the date, start time of the meeting, and location of the hearing." Code section 118-8(a). Beach Towing was afforded procedural due process having received proper notice and an opportunity to be heard by the DRB.

Further, the essential requirements of the law were observed. Beach Towing argues that SH was not an Applicant as required by the DRB By-Laws and Rules of Order ("DRB By-Laws") Section 3 (Board to Hear Only Bona Fide Cases) even though it is a title owner of five of the eight Subject Properties. Beach Towing claims that because Sunset, the title owner of the other three properties, was the only Applicant, the Application was not bona fide. Beach Towing's argument is without merit.

The City of Miami Beach Design Review Board, By-Laws and Rules of Order provide in Article 11, Section 3 that: "The Board may hear only those applications for design review brought by the legal title owner of record of the subject property ...." (emphasis added). There is abundant evidence in the record that this Application was "brought" by the legal title owners of the Property.

SH was identified in the Application and the Application included "OWNER AFFIDAVITS" that were executed on behalf of both Sunset and SH. The third page of each Affidavit was an "APPLICANT AFFIDAVIT" affirming that Sunset and SH [*6] were each an Applicant. The City Attorney concluded the same. Indeed, even Beach Towing itself argued that SH was an Applicant during the initial hearing before the DRB.² Their change of position punctuates the deficiency of their argument.

Beach Towing further claims that SH was an indispensable party to the DRB proceedings. "An indispensable party is one whose interest in the controversy makes it impossible to completely adjudicate the matter without affecting either that party's interest or the interests of another party in the action." Fla. Dep't of Revenue v. Cummings, 930 So. 2d 604, 607 (Fla. 2006). SH was provided with an opportunity to appear before the DRB and chose not to do so. However, SH shares a common interest in the Project with Sunset, who successfully represented SH's position in the proceedings below. If SH was in fact an indispensable party, SH's position was considered by the DRB prior to issuing its order. Finally, as to competent substantial evidence, Beach Towing does not argue that the DRB's order lacks such support. It would be difficult for them to credibly do so. The record includes but was not limited to the professional staff report with recommendations and renderings of the project. Competent substantial evidence has been defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Duval Utility Co. v. Florida Public Service N 2 The DRB held an initial hearing on November 6, 2018. However, due to a procedural issue not relevant to this petition, the DRB continued that hearing to December 4, 2018. The DRB entered its order on December 7, 2018. [*7] Commission, 380 So. 2d 1028, 1031 (Fla. 1980). As long as the record contains competent substantial evidence to support the agency's decision, the decision is presumed lawful and the court's job is ended. Dusseau v. Metropolitan Dade County Bd. of County Com'rs, 794 So. 2d 1270, 1275-76 (Fla. 2001). We find that the Order issued by the DRB was supported by competent substantial evidence.

For the reasons herein discussed, the Petition for Writ of Certiorari is hereby DENIED.³ WALSH and REBULL, J.J. concur. COPIES FURNISHED TO

COUNSEL OF RECORD AND

TO ANY PARTY NOT REPRESENTED

BY COUNSEL N 3 The Court has considered each of the other arguments raised by Petitioner. However, our findings render a determination of these issues unnecessary.