Legal Report, March 2021

General Counsel, Davis & Associates, P.A.

1.Persaud Props. FL Invs., LLC v. Town of Fort Myers Beach, 2020 Fla. App. LEXIS 17619 (Fla. 2d DCA 2020). Nonconforming uses; Abandonment.
Restaurant and bar owner (“Plaintiff”) had a valid liquor license in Environmentally Critical (“EC”)-zoned property (beach) as a grandfathered nonconforming use. The Town of Fort Myers Beach (“Town”) began prohibiting alcohol sales in its EC zoning district in 1995, stating that any nonconforming uses may continue until any “abandonment” occurs for a continuous 9-month period, and defined abandonment as the “failure to use the location for consumption on the premises . . . as authorized by the [Town] approval.” § 34-1264(h)(2), Town Code. In 2014, Plaintiff closed the bar and restaurant for one year to perform extensive renovations and designated the liquor license as “inactive” with the state licensing agency. However, after the renovations were complete, the Town advised Plaintiff that they could no longer sell alcohol on the EC-zoned property because the liquor license as a nonconforming use had been “abandoned” under Town Code. Plaintiff filed suit.

The trial court found in favor of the Town on all counts, concluding that Plaintiff had abandoned the nonconforming use of the property pursuant to Town Code. On appeal, however, the Second District Court of Appeal (“2nd DCA”) reversed the ruling, remanding the case back to the trial court. Construing the Town Code’s provisions in favor of the Plaintiff as property owner, and applying relevant case law to the issue of “abandonment,” the 2nd DCA reasoned that abandonment of a nonconforming use requires more than the passage of time when the property was closed for renovations, it also requires a “voluntary cessation of the nonconforming use with the intent that the cessation of such use be permanent.”

This decision signifies that, despite the existence of a municipal code’s definition of “abandonment,” a reviewing court may also rely on a broader interpretation of “abandonment” under common law requiring an intent that such any nonconforming use be halted permanently, unless such common law is displaced by statute.

2. City of Miami Beach v. Miami New Times, LLC, 2020 Fla. App. LEXIS 17870(Fla. 3d DCA 2020).Public records law; draft audit reports.
In 2018, City of Miami Beach (“City”) commenced an internal audit of two towing companies. After the towing companies raised concerns as to unfair auditing procedures, the City agreed to terminate its original internal audit and begin a new, independent external audit. During this time, the Miami New Times requested a copy of the original draft audit reports from the City. The City denied the request, citing § 119.0713(2)(b), F.S., which provides that an audit report and audit workpapers become a public record only when the “audit report becomes final." At the same time (and unbeknownst to the City), the towing companies shared the original draft audit reports with a third-party reporter. The Miami New Times thereafter filed a court order to compel disclosure, contending that the reports no longer held exempt status as draft audit reports under §119.0713(2)(b), F.S. because the City’s original internal audit had been terminated. Miami New Times also argued that, even if the statutory exemption did apply, the exemption was waived when the towing companies disclosed the draft audit reports to a third party.

The trial court agreed, concluding that the City’s draft audit reports lost their exempt status when the reports were disclosed by the towing companies, albeit without City knowledge. The Third District Court of Appeal (“3rd DCA”) reversed on appeal, however, first holding that the “plain and unambiguous” language of § 119.0713(2)(b), F.S., provides that the City’s draft audit reports only become a public record when the audit becomes “final;” that is, when the audit reports are “presented to the unit of local government.” Because the draft reports here had not yet been presented to the City Commission, they were not “final” under § 119.0713(2)(b), F.S. The 3rd DCA also held that disclosure of the draft audit reports by the towing companies to a third party without the City’s knowledge or consent did not evade the exemption from disclosure under §119.0713(2)(b), F.S.

This opinion clarifies the ‘draft audit report’ exemption in Florida’s public records law and provides that an unauthorized dissemination of such draft reports to third parties will not otherwise override the exemption.