FL - Miami Beach: BOARD OF ADJUSTMENT AGENDA

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BOARD OF ADJUSTMENT AGENDA

BOARD OF ADJUSTMENT AGENDA 1700 CONVENTION CENTER DRIVE 3RD FL.

Friday, May 4, 2018, 9:00 AM City Commission Chambers
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I.
ATTENDANCE II. APPROVAL OF MINUTES III. CITY ATTORNEY UPDATES IV. SWEARING IN OF PUBLIC V. REQUESTS FOR CONTINUANCES/WITHDRAWALS VI. REQUESTS FOR EXTENSIONS OF TIME VII. DISCUSSION ITEMS VIII. PROGRESS REPORT IX. MODIFICATION OF PREVIOUSLY APPROVED BOARD ORDER X. CONTINUED ITEMS XI. OPEN AND CONTINUED ITEMS XII. NEW APPLICATIONS XIII. APPEALS (BOA ONLY) XIV. OTHER BUSINESS XV. ADJOURNMENT

AGENDA ITEMS APPROVAL OF MINUTES

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1.
After Action Report - March 2, 2018

REQUESTS FOR CONTINUANCES/WITHDRAWALS APPEALS (BOA ONLY)

2.
ZBA18-0062 -865 Collins Avenue Doron Doar -PMJ Holding Company, LLC

ADJOURNMENT Applications listed herein have been filed with the Planning Department for review by the Board of Adjustments, pursuant Section 118-136 of the City's Land Development Regulations. All persons are invited to attend this meeting or be represented by an agent, or to express their views in writing addressed to the Board of Adjustments c/o the Planning Department, 1700 Convention Center Drive, 2nd Floor, Miami Beach, Florida 33139. Applications for items listed herein are available for public inspection at the following link: or during normal business hours at the Planning Department, 1700 Convention Center Drive, 2nd Floor, Miami Beach, Florida 33139. Inquiries may be directed to the Department at (305) 673-7550. Any items listed in this agenda may be continued. Under such circumstances, additional legal notice would not be provided. Please contact the Planning Department at (305) 673-7550 for information on the status of continued items. Pursuant to Section 286.0105, Fla. Stat., the City hereby advises the public that: Appeals of any decision made by this Board with respect to any matter considered at its meeting or hearing, such person will need to ensure that a verbatim record of the proceedings is made, which record includes the testimony and evidence upon which the appeal is to be based. This notice does not constitute consent by the City for the introduction or admission of otherwise inadmissible or irrelevant evidence, nor does it authorize challenges or appeals not otherwise allowed by law. To request this material in alternate format, sign language interpreter (five-business day notice is required), information on access for persons with disabilities, and accommodation to review any document or participate in any city-sponsored proceedings, call 305.604.2489 and select 1 for English or 2 for Spanish, then option 6; TTY users may call via 711 (Florida Relay Service). LAND USE BOARDS FILE NO. APPLICANT: MEETING DATE: 3/2/2018 PRIOR ORDER NUMBER:

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ATTACHMENTS: Description Type After Action 3-2-18 Memo

LAND USE BOARDS

BOARD OF ADJUSTMENT MINUTES 1700 CONVENTION CENTER DRIVE 3RD FL.

Friday, March 2, 2018, 9:00 AM City Commission Chambers
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I.
ATTENDANCE II. APPROVAL OF MINUTES III. CITY ATTORNEY UPDATES IV. SWEARING IN OF PUBLIC V. REQUESTS FOR CONTINUANCES/WITHDRAWALS VI. REQUESTS FOR EXTENSIONS OF TIME VII. DISCUSSION ITEMS VIII. PROGRESS REPORT IX. MODIFICATION OF PREVIOUSLY APPROVED BOARD ORDER X. CONTINUED ITEMS XI. OPEN AND CONTINUED ITEMS XII. NEW APPLICATIONS XIII. APPEALS (BOA ONLY) XIV. OTHER BUSINESS XV. ADJOURNMENT

AGENDA ITEMS ATTENDANCE

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APPROVAL OF MINUTES 1. After Action Report -January 5, 2018

Approve Motion to Approve Moved By: James Orlowsky Supported By: Richard Baron

Ayes: Baron, Fox, Goldberg, Orlowsky, Urquiza

Absent: Segal

MOTION Passed

REQUESTS FOR CONTINUANCES/WITHDRAWALS

DISCUSSION ITEMS 2. Election of Chair and Vice Chair

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Motion

Barton Goldberg as Chair and Noah Fox as Vice Chair Motion to Approve Moved By: Supported By:

Ayes: Baron, Fox, Goldberg, Orlowsky, Urquiza

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MOTION

NEW APPLICATIONS 3. ZBA17-0056 -1429 Washington Ave FDP La Caffe Creperie, LLC/DBA La Creperie Caffe Approve Motion to Approve Moved By: James Orlowsky Supported By: Elsa Urquiza

Ayes: Baron, Fox, Goldberg, Orlowsky, Urquiza

Absent: Segal

MOTION Passed

ADJOURNMENT Applications listed herein have been filed with the Planning Department for review by the Design Review Board, pursuant Section 118-252, and 118-71 of the City's Land Development Regulations. All persons are invited to attend this meeting or be represented by an agent, or to express their views in writing addressed to the Design Review Board c/o the Planning Department, 1700 Convention Center Drive, 2nd Floor, Miami Beach, Florida 33139. Applications for items listed herein are available for public inspection at the following link: or during normal business hours at the Planning Department, 1700 Convention Center Drive, 2nd Floor, Miami Beach, Florida 33139. Inquiries may be directed to the Department at (305) 673-7550. Any items listed in this agenda may be continued. Under such circumstances, additional legal notice would not be provided. Please contact the Planning Department at (305) 673-7550 for information on the status of continued items. Pursuant to Section 286.0105, Fla. Stat., the City hereby advises the public that: Appeals of any decision made by this Board with respect to any matter considered at its meeting or hearing, such person will need to ensure that a verbatim record of the proceedings is made, which record includes the testimony and evidence upon which the appeal is to be based. This notice does not constitute consent by the City for the introduction or admission of otherwise inadmissible or irrelevant evidence, nor does it authorize challenges or appeals not otherwise allowed by law. To request this material in alternate format, sign language interpreter (five-business day notice is required), information on access for persons with disabilities, and accommodation to review any document or participate in any city-sponsored proceedings, call 305.604.2489 and select 1 for English or 2 for Spanish, then option 6; TTY users may call via 711 (Florida Relay Service). LAND USE BOARDS PROPERTY: 865 Collins Avenue FILE NO. ZBA18-0062 APPLICANT: Doron Doar -PMJ Holding Company, LLC MEETING DATE: 5/4/2018
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LEGAL DESCRIPTION: THE SKYLARK CONDO UNIT D UNDIV 3.167 INT IN COMMON ELEMENTS OFF REC 20580-1711

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IN RE: The applicant is appealing the denial by the Planning Department of a Business Tax Receipt for a package store with entertainment at 865 Collins Avenue, due to lack of proper zoning (not a permitted use in the zoning district), pursuant to City Code Section 102-385(b).

PRIOR ORDER NUMBER:
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ATTACHMENTS: Description Type APPEAL EXHIBIT A Memo APPEAL EXHIBIT B Memo APPEAL EXHIBIT C Memo APPEAL EXHIBIT D Memo APPEAL EXHIBIT E (TRANSCRIPT) Memo APPEAL EXHIBIT F Memo APPEAL EXHIBIT G Memo APPEAL EXHIBIT H Memo APPEAL EXHIBIT I Memo APPEAL EXHIBIT J (COMPLAINT) Memo APPEAL EXHIBIT K (R R) Memo APPEAL EXHIBIT L (ORDER AFFIRMING R R) Memo APPEAL EXHIBIT L (ORDER AFFIRMING R R) Memo

APPLICATION Memo LETTER OF INTENT Memo AMENDED LETTER OF INTENT Memo APPEAL EXHIBIT A -SUPPLEMENTAL Memo APPEAL EXHIBIT B -SUPPLEMENTAL Memo APPEAL EXHIBIT C -SUPPLEMENTAL Memo APPEAL EXHIBIT D -SUPPLEMENTAL Memo APPEAL EXHIBIT E (TRANSCRIPT) -SUPPLEMENTAL Memo APPEAL EXHIBIT F -SUPPLEMENTAL Memo APPEAL EXHIBIT G -SUPPLEMENTAL Memo APPEAL EXHIBIT H -SUPPLEMENTAL Memo APPEAL EXHIBIT I -SUPPLEMENTAL Memo APPEAL EXHIBIT J (COMPLAINT) -SUPPLEMENTAL Memo APPEAL EXHIBIT K (R R) -SUPPLEMENTAL Memo APPEAL EXHIBIT L (ORDER AFFIRMING R R) -SUPPLEMENTAL Memo SUPPLEMENTAL APPLICATION Memo City's Appendix in Support of it's Response Memo City's Response in Opposition Memo Letter to City of Miami Beach Memo EXHIBIT H EXHIBIT I EXHIBIT J EXHIBIT K
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1
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

CASE NO. 17-CV-23958 BEACH BLITZ CO., Miami, Florida Plaintiff(s), November 17, 2017 vs.
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CITY OF MIAMI BEACH, FLORIDA, Volume 01 Defendant(s). Pages 1- 173

----------------------------------------------------------- PLAINTIFF'S EMERGENCY MOTION FOR PRELIMINARY INJUNCTION BEFORE THE HONORABLE JOHN J. O'SULLIVAN UNITED STATES MAGISTRATE JUDGE APPEARANCES: FOR THE PLAINTIFF(S): PHILLIP M. HUDSON, III, ESQ. Arnstein Lehr, LLP 200 South Biscayne Boulevard, Suite 3600 Miami, Florida 33131 (305) 374-3330 pmhudson@arnstein.com FOR THE DEFENDANT(S): ENRIQUE DANIEL ARANA, ESQ. Carlton Fields Jorden Burt, P.A. Miami Tower 100 S.E. Second Street Suite 4200 Miami, Florida 33131 (305) 530-0050 earana@cfjblaw.com - and - SCOTT EVERETT BYERS, ESQ. GARY PAPPAS, ESQ.
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REPORTED BY: Jill M. Felicetti, RPR, CRR, CSR Official Court Reporter 400 N. Miami Avenue, Suite 08S27 Miami, Florida 33128 jill_felicetti@flsd.uscourts.gov

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I N D E X Examination Page DORAN DOAR Direct By Mr. Hudson 15 Cross By Mr. Pappas 47 MANUEL MARQUEZ Direct By Mr. Arana 88 Cross By Mr. Hudson 102 Redirect By Mr. Arana 128 HERNAN CARDENO Direct By Mr. Byers 130 Cross By Mr. Hudson 136 Redirect By Mr. Byers 149

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Thereupon, the following proceedings began at 11:02 a.m.: (In open court)

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THE COURT: Hearing on preliminary injunction.

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Appearances for the plaintiff first.

MR. HUDSON: Phillip Hudson on behalf of plaintiff

Beach Blitz. I have my paralegal, Jennin Gil, and Mr. Doran Doar, the principal of Beach Blitz, your Honor. THE COURT: Who is here for the defendants?

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MR. ARANA: Enrique Arana, Scott Byers, and Gary

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Pappas, from Carlton Fields, on behalf of the defendants.

THE COURT: Anything we need to discuss before we get

started?
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MR. HUDSON: Did you want a brief opening?

THE COURT: Well, I think we had it yesterday. If you want to spend five minutes, you are welcome to, but I don't want to spend too much time.

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MR. HUDSON: I will invoke the rule.

THE COURT: If anybody has a witness other than the parties, you need to leave. You can't discuss your testimony with anybody until your testimony is completed. Schedule, we will take a break around 1 for lunch. We will come back and finish after that.

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MR. HUDSON: Thank you. I will try to be as brief as

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possible given yesterday, your Honor.

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We are here on a preliminary injunction to get back to the status quo. Although I indicated yesterday, and I still believe this is a simple matter, it's a very, very, very important matter because it involves the destruction of a business, in our view, in the absolute complete absence of due process, whether that be procedural or substantive due process.

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You know the outline of the case so I am not going to

go through what we will put on for evidence today. We believe essentially we need to demonstrate to the court the four elements necessary for a preliminary injunction in this case, your Honor. What we are asking the court to do is to immediately command that the City of Miami Beach issue whatever license necessary, whether it be on a year-to-year basis or on a temporary basis pending during this litigation
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because there is no status quo, because they put my client out

of business. If he's not restored to that position in the relatively near future, he will never be to survive. Whether that's a few weeks or a month at the outside, your Honor, his business will be destroyed.

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THE COURT: They say you don't have a protective

property interest. MR. HUDSON: Well, as I indicated to you yesterday, they are trying to change the narrative. They are trying to say it's about a business license. It's not, your Honor. It's about a unique liquor store in a unique area with unique
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licensing that is now irreplaceable. THE COURT: It's the license that's the issue. In

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other words, they are not going to stop you if you want to sell

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Cheerios from that spot, you can do that. What you can't sell

is liquor. For liquor you need a license. They say there are
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a
bunch of cases -- I haven't read those cases -- but they say

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there is a bunch of cases that you don't have --

MR. HUDSON: First of all, we disagree with those cases, your Honor, and we are happy to brief that particular issue again if you want. We don't agree. There are certain types of licenses that are protectable interests, number one. THE COURT: Which ones are those?
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MR. HUDSON: Your Honor, those are licenses that are

critical to a business, that in the absence of that you lose the good will of the business, the customer base of the business. Those types of licenses.

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THE COURT: A liquor license, for instance.

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MR. HUDSON: Exactly.

THE COURT: Liquor is 90 percent of his sales, I am sure. Do you have cases that say we treat liquor licenses different than we treat -- I don't know what kind of licenses there are. You are a licensed to be a veterinarian. If you lose your license to be a vet, you can keep your store but all you can sell is dog food. Are you saying there's any cases

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that say there are licenses that you have a property interest in?

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MR. HUDSON: There are those cases, your Honor. I

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don't know as I stand here whether there's a liquor license

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case on point. But there's two ways I want to address that

argument with you.

First of all, liquor licenses. We are not talking

about a liquor license here. My client has a liquor license from the State of Florida that's current and valid. The State of Florida has preempted all other governments in Florida -- municipalities, counties, et cetera -- has specifically preempted the regulation of liquor but for three things, and the only one relevant in this case are hours of sales. We are not here on the hour of sale issue. So what we are alleging they have done is prevented us from renewing our license, which is a renewal process and would have been automatically renewed had they not prevented us from
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paying it, therefore requiring us to get a new license, at all

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times knowing that they would never give us a new license

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because of the change of the ordinance.

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One of the exhibits that I believe you are going to

see today is an internal City of Miami Beach record that says
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he may not reapply for a liquor license because of the new

ordinance.
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THE COURT: The BTR. You are making the statement I

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made.

MR. HUDSON: Correct. I'm sorry, Judge. Thank you

for correcting me. He may not now apply for that BTR because of the

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change in the statute. We believe that was intentional. That

is a taking, Judge. Certainly it's a taking of the license. But it's not the license that's in our view the relevant issue.
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They targeted these four liquor stores. They

targeted -- malignant tumor, as the Mayor called it. They targeted the cafes that are serving until 5:00 p.m. We have evidence that we will show, that we don't need
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to get into today, of the targeting, your Honor. They

specifically intended to put him out of business by this. THE COURT: I understand your argument of the fact that what they are saying is that legally you have got no right to be here, you should be in Miami Beach appealing this to some special master or administrative law judge. When that gets denied, you should go on your way to state court.
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MR. HUDSON: Let's talk about that. There is no

appellate right at this point because their argument is that the license expired and as a result you can't get it. So their argument in their very papers says, all right, Mr. Hudson, send your client down to do an application for a new license. I am going to show you today that they have already made the decision they are not going to grant him a new license. That's

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part of the conspiracy.

They tried to get to the end of the year. They got to the end of the year. They are now saying you have to go apply for a new license, but you can't get a new license because of the change in the code. So they won. They got what they
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wanted. They put one of the four liquor stores out of

business, your Honor. THE COURT: I don't want to hear too much more. I am going to be more interested after we get the testimony because then we could talk about, instead of what you are going to hear, what I heard. I know the facts. I don't know the way you guys do it, but I read the papers and I am familiar with
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it. I really don't want to hear too much more argument.

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MR. HUDSON: Understood, your Honor.

The due process, that's what you are going to hear today. You are going to hear from my client two things. One, irreparable harm. Why this is unique. It is unique by the

very fact that it's irreplaceable. It's made irreplaceable by

their ordinance. So the fact that he was able to stay and renew his license. They took it away from him without any due process. There is no remedy. They are trying to get you to believe there is a remedy. There isn't. It wasn't revoked.
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It wasn't suspended. It wasn't denied.

They got him to October 1 where he couldn't renew it. There is no legal way for him to reopen absent the relief from
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this court, Judge. That's why an injunction is appropriate. So what you are going to hear from him today, your Honor, is essentially the unique nature of this business, why it's unique, and, as I said, it is now self-evident that it's

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unique because he was grandfathered in and nobody could do it.

Number one. Number two, you are going to hear that he tried and hired professional after professional and he personally went down multiple times -- THE COURT: I heard all this yesterday. I told you I don't want to hear this again. Let's go to the defendant. I understand what you want. I want five minutes or less. Same for you. And don't tell me what you told me yesterday. If that's what you are going to tell me, sit down.
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MR. ARANA: Your Honor, I will take two minutes here

at the outset.

A
critical fact that they are misconstruing, the BTR

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license expired naturally on September 30, 2016. It expired.

THE COURT: Because you wouldn't let what he says -- don't say no because you don't know what I am going to say. Because he said that you refused to take payment for the
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license while the violations were unpaid.

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MR. ARANA: I apologize for interrupting you. The

factual history is as follows. On September 30, 2016, the

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license expired. THE COURT: We all know that.

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MR. ARANA: Nine months later they were cited for

operating without a license. That was on June 26, 2017, nine months later.

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Since that time they contend they had been trying to

get a new BTR, that they have been trying to renew it or get a

new one, and that the city has deprived them of that

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opportunity. We disagree with that. But here is the point,

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your Honor. The case law is unequivocally clear that when a

license is expired -- this is not about revoking an existing license or taking it away from them. They don't have one. It expired naturally. So there is no -- THE COURT: You are saying once September 30, the last
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year rolled around, no matter what happened, if the city didn't

want to give them the license again, you didn't need to.

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MR. ARANA: No, not at all. What I am saying is

there's no property interest at that point. There is no federally protected property interest in an expired license. There's no dispute about that. There's a legion of cases to that effect. They say, well, it was our business. It was our

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business activity. That's protected. Well, your Honor, there

are Supreme Court and Eleventh Circuit authorities. College Savings Bank v. Florida Prepaid PostSecondary Education, 527
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U.S. 666, that says: While the assets of a business are

property, business in the sense of the activity of doing
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business or the activity of making a profit is not property in

the ordinary sense. The Eleventh Circuit says the same thing. In other words, the activity of doing business is also not a protected property interest. So you don't have it either way in terms of a property interest you can protect in federal court. Now, the license expired naturally. The plaintiffs can apply for a new BTR, and it may well be denied by the city on the grounds that there is an ordinance in effect that prohibits package liquor stores in the district. But if that
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is what the city decides, the plaintiff can appeal that

decision through the state process.

THE COURT: Who do they appeal to?
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MR. ARANA: They can appeal it through the city's

administrative process to the city manager or his designee, who will then take evidence, and they can make this argument to the

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city manager. They can say, no, we really should be allowed to

get the license because we didn't understand or we were confused or misled or whatever they want to say. THE COURT: What's their due process to remedy the wrong they allege that you refused to take their money and
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allow them to renew the license within the one-year period?

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MR. ARANA: If the city did anything wrong by not -- if the city did not take their money, and the evidence will show that that is not correct. THE COURT: We will see.

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MR. ARANA: They can make those arguments in state

court, that they are entitled to a license under state law. Their argument to the court is that they are entitled to a new license under state law. Well, they need to make that argument in state court. First in the state administrative procedure and then in the state -- and then if they want in the state courts. THE COURT: But is there a way for them to get to an

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administrative procedure without applying for a new license?

Because they don't want to apply for a new license. What they
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want you to do is -- what they wanted you to do is issue them

their BTR before September 30, or to renew the BTR, whatever it

is.

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MR. ARANA: I don't think there will be any dispute

about this. The license expired on September 30, 2016 because they did not renew it, and they will not dispute that they made

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no effort to renew it before that date or for nine months

thereafter. THE COURT: Well, I think once June rolled around they started to.

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MR. ARANA: I am saying -- June is nine months later.

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13

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They realized that they were operating without a license. So

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Tagged Passions:license

they have an expired license. So they have no federal property

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Tagged Passions:property and license

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