CITY OF MIAMI BEACH, A FLORIDA MUNICIPAL CORPORATION, APPELLANT,
v.
HYMAN UCHITEL, APPELLEE
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The City of Miami Beach appealed a trial court judgment that allowed a restaurant operator to advertise his restaurant in a residential-zoned district. The court reversed, holding that advertising a restaurant through television and newspaper transforms it from a permitted accessory use into an impermissible principal commercial use.
The court held that television and newspaper advertising transforms a restaurant from a permitted accessory use into a principal commercial use, which is prohibited in residential zones. The court reversed the trial court's judgment and upheld the City's authority to enforce the zoning ordinance against such advertising.
[1] A restaurant operating as an accessory use in a residential zone may not advertise to the public, as such advertising transforms the use into a prohibited principal comme…
[2] Advertising a restaurant to the public via television or newspaper constitutes holding it out as an independent commercial enterprise, thereby violating zoning ordinances…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“although the zoning ordinance expressly permits cocktail lounges and coffee shops in residential areas of Miami Beach as accessory uses, a prominent sign outside the building would not be permitted. The effect, if not the purpose, of the sign would be to attract persons not residents of the building or guests of the hotel and create patronage as if the coffee shop or cocktail lounge were an independent commercial enterprise.”
Precedent establishing that advertising transforms accessory uses into commercial uses
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Join FLexlaw to unlock all legal intelligenceHyman Uchitel operated a restaurant in an apartment building located in a district zoned for hotel and apartment use. When Uchitel began advertising h…
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PER CURIAM.
The City of Miami Beach, defendant in the trial court, seeks review of an adverse final judgment in an action for declaratory and injunctive relief.
Hyman Uchitel, the plaintiff-appellee, owns and operates a restaurant in a large apartment building on Miami Beach, located in a district zoned for hotel, apartment house and apartment-hotel use only. Mr. Uchitel began advertising his restaurant in the newspaper and on television, whereupon the City of Miami Beach issued zoning violations against him, alleging the operation of an improper commercial use in a residential zone. Uchitel then filed a suit in the circuit court for injunctive and declaratory relief in order to procure a decree declaring his restaurant operation to be in accordance with Zoning Ordinance No. 1891 of the City of Miami Beach, which permits “accessory use,” but prohibits “commercial use.”
The court found that Mr. Uchitel was not in violation of the zoning ordinance because its provisions do not prohibit advertising to the public by means of television or newspaper, and enjoined the City of Miami Beach from further prosecution of Uchitel for violations of the zoning ordinance arising from advertising to the public.
On appeal, the City of Miami Beach argues that the City’s zoning ordinance provides for two types of uses, namely residential and commercial, and that a restaurant may be maintained as an accessory use in an apartment-residential district for the primary use and convenience of tenants, but such restaurant is not permitted to advertise its existence to the public, thereby holding itself out as a commercial restaurant.
In International Company, Inc. v. City of Miami Beach, Fla.1956, 90 So. 2d 906, the Florida Supreme Court held that although the zoning ordinance expressly permits cocktail lounges and coffee shops in residential areas of Miami Beach as accessory uses, a prominent sign outside the building would not be permitted. The effect, if not the purpose, of the sign would be to attract persons not residents of the building or guests of the hotel and create patronage as if the coffee shop or cocktail lounge were an independent commercial enterprise.
For these same reasons, we hold that television and newspaper advertising transformed Uchitel’s restaurant from an accessory into a principal use. In his work on Zoning (Second Edition), Basset states at page 100, that “Many ordinances have elaborate statements regarding accessory buildings and uses, but they can usually be reduced to a prohibition of business .” Uchitel accepted the conditions of the accessory use and he cannot now, by circumvention, undermine existing zoning regulations and create a commercial establishment.
The economy of the City of Miami Beach is based upon the careful preservation of its residential areas. Enormous amounts of capital have been expended in the construction, operation and maintenance of hotels and apartments within the City on the basis of the distinction in the City’s Zoning Ordinance between hotel and apartment areas and business or commercial districts. Uchitel’s suit seeks to destroy the distinction between the two.
For the reasons stated, the judgment hereby is reversed.
Reversed.
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Hull v. Miami Shores Vill. & Edward A. McCarthy, 435 So. 2d 868 (Fla. 3d DCA 1983)…ich have no connection to the Village — would circumvent and undermine its expressed legislative intent. We have been presented no case directly on point but appellants argue persuasively by analogy. First, they cite City of Miami Beach v. Uchitel, 305 So. 2d 281 (Fla. 3d DCA 1974). There the city had enacted a zoning ordinance which permitted a certain “accessory use” restaurant license. Under an accessory use license, the owner could operate the restaurant for the primary use and convenience of tenants, bu…
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- Int'l Co., Inc. v. The City OF Miami Beach, 90 So. 2d 906 (Fla. 1956)