46-Amended Complaint 8-10-15 (00651531xBA9D6)IN THE CIRCUIT COURT, FOURTH
JUDICIAL CIRCUIT, IN AND FOR
DUVAL COUNTY, FLORIDA
CASE NO. :16-2014-CA-007714
DIVISION: CV-C
GATE PETROLEUM COMPANY, a Florida
corporation,
Plaintiff,
VS.
BARRY L. ADEEB, an individual, d/b/a Atlantic
Beach Diner, and ATLANTIC BEACH DINER,
INC., a Florida corporation,
Defendants.
AMENDED COMPLAINT FOR DECLARATORY JUDGMENT
Plaintiff, GATE PETROLEUM COMPANY, a Florida corporation ("Gate"), files this
Amended Complaint for Declaratory Judgment against Defendants, BARRY L. ADEEB, an
individual, d/b/a Beach Diner ("Adeeb"), and ATLANTIC BEACH DINER, INC., a Florida
corporation ("Beach Diner"), and alleges:
1. This is an action for a declaratory judgment involving an amount in excess of
$15,000.00, exclusive of interest and costs, of which this Court has jurisdiction in accordance
with §86.011, Florida Statutes.
2. Plaintiff, Gate, is a Florida corporation in the business of operating automobile
service stations, with its principal place of business in Duval County, Florida.
3. Defendant Adeeb is a resident of Duval County, Florida.
Filing # 30688221 E-Filed 08/10/2015 04:34:12 PM
4. Defendant Beach Diner is a Florida corporation with its principal place of
business in Duval County, Florida.
5. Venue properly lies in Duval County, Florida in accordance with §47.021, Florida
Statutes.
6. Adeeb and/or Beach Diner operate various restaurants in and around the
Jacksonville, Florida area under the name "Beach Diner." One of these restaurants is located on
Atlantic Boulevard in Atlantic Beach, Florida, on property leased by Adeeb, which property is
referenced herein as the "Restaurant Building." The Restaurant Building, which has an address
of 501 Atlantic Boulevard, is located on an outparcel to a larger tract of land, referenced herein
as the "Primary Parcel."
7. The Primary Parcel—the tract of land which includes the shopping center and the
Restaurant Building outparcel—is located on property commonly known as 501 and 535 Atlantic
Boulevard, Atlantic Beach, Florida, and more particularly described as follows:
Lots 788, 789, 790, 791, 792, 793, 794, 795, 796, 797, 798, 799,
803, 804, 805, 806, 807, 808 and 809, SECTION NO. 1,
SALTAIR, according to the plat thereof recorded in Plat Book 10,
Page 8, of the current Public Records of Duval County, Florida.
8. In addition to the Restaurant Building and its adjacent parking and walkways, the
remainder of the Primary Parcel currently contains a strip shopping center known as Atlantic
Palms Plaza, which has an address of 535 Atlantic Boulevard, and includes a shopping center
parking lot, and a dirt/grass area.
9. Adeeb initially leased the Restaurant Building pursuant to a lease entered June 1,
1997 between John L. Green and William W. Nicol, as the original Lessors, and Barry Adeeb
d/b/a Atlantic Beach Diner, as Lessee (the "Lease"). A copy of the Lease is attached hereto as
Exhibit "A." Adeeb remains in possession of the Restaurant Building pursuant to having
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executed options to renew the lease term. Beach Diner may assert some interest in the restaurant
and Lease, and may take a similar or identical position as Adeeb, by virtue of the fact that Beach
Diner has made lease payments under the Lease, and the fact that Adeeb may operate the
restaurant through Beach Diner, the corporate entity.
10. At the time that Adeeb signed the Lease for the Restaurant Building, it consisted
of 1,900 square feet of air conditioned space, contained seating for 40, and had an immediately
adjacent parking lot that was surrounded by concrete barriers separating the adjacent parking lot
from the shopping center parking lot. Adeeb expanded the Restaurant Building into that adjacent
area, such that it then consisted of 2,800 square feet of air conditioned space containing seating
for approximately 80, and removed the concrete barriers surrounding the outparcel. Adeeb
constructed the addition to the Restaurant Building at his own expense. Adeeb has never been
charged rent on the expanded space, however, and continues to pay rent, and "common area
maintenance," on the basis of 1,900 square feet as opposed to the 2,800 square feet that Beach
Diner actually occupies.
11. The only reference to parking in the Lease is at paragraph 21 thereof, which
provides in part:
Lessee shall also pay to Lessor the sum of $.15 per square foot of
the premises leased herein per year for the common area
maintenance adjacent to the premises herein, with said sum due
and payable each year in advance. This fee will cover the cost of
routine maintenance of the parking lot and surrounding walkways.
12. Since the inception of the Lease, Adeeb has paid, and continues to pay, $285.00
per year "for the common area maintenance adjacent to the premises" to "cover the cost of
routine maintenance of the parking lot and surrounding walkways." This $285.00 annual fee is
calculated at $.15 per square foot on the basis of 1,900 square feet, in accordance with paragraph
21 of the Lease.
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13. On August 8, 2005, John L. Green and William W. Nicol, the original Lessors,
conveyed the Primary Parcel to GRFA Palms LLC, a Florida limited liability company ("GRFA
Palms"). GRFA Palms' members and managers are John L. Green and Stephen Falor.
Following a foreclosure, a Certificate of Title for the Primary Parcel was issued to LSREF2
Chalk REO, LLC, a Delaware limited liability company ("LSREF2 Chalk"), on January 25,
2013. Gate purchased the Primary Parcel from LSREF Chalk via Special Warranty Deed dated
October 30, 2014. Adeeb's rights under the Lease survived the transfers of the Primary Parcel
and remain in effect.
14. Also on October 30, 2014, Gate purchased property contiguous to the Primary
Parcel that is commonly known as 541 Atlantic Boulevard, Atlantic Beach, Florida (the
"Contiguous Parcel"). Adeeb has no rights to the Contiguous Parcel under the Lease or
otherwise, and he has asserted no such rights.
15. Gate intends to construct an automobile service station, with an accompanying
retail store (the "Service Station") to sell food and other items, and parking on the Contiguous
Parcel and on a portion of the Primary Parcel that currently includes the Atlantic Palms Plaza
shopping center, the shopping center parking lot, and the dirt/grass area, which would entail
razing the shopping center. The Restaurant Building and its adjacent parking and walkways
would be left intact.
16. Adeeb takes the position that he has a right to use 100% of the parking spaces in
the shopping center parking lot, as well as the dirt/grass area, for his restaurant patrons and
employees. Adeeb takes the position that if Gate develops the Service Station, he would have a
right to use 100% of the parking spaces on the Primary Parcel that are constructed for the Service
Station.
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17. Gate intends to design and build a Service Station that will be constructed and
landscaped in accordance with the Code of Ordinances of the City of Atlantic Beach (the
"Atlantic Beach Code"). Gate intends to provide Adeeb with reasonable parking that is required
by the Atlantic Beach Code or other applicable regulation, or as may be determined by this
Court. To the extent this Court might deter ine Adeeb should be provided additional parking
above and beyond that required by the Atlantic Beach Code, Gate intends to either design the
Service Station in a manner that will provide Adeeb with such additional parking or, if the
number of additional parking spaces were such that it would no longer be feasible to operate a
Service Station, Gate will continue to operate the existing shopping center for the duration of
Adeeb's Lease.
18. The parking to which Adeeb contends he has a right—that is, all of the parking
spaces in the shopping center parking lot plus additional parking spaces—not only renders
impossible the successful operation of a service station, but it also renders impossible the
successful operation of the existing shopping center on the subject property.
19. Until Gate knows the number of parking spaces to which Adeeb has a right, Gate
is unable to determine the design, layout, or size of the Service Station, including without
limitation the number of gasoline pumps it would be able to install, the location and design of the
parking to be provided for the Service Station, or the location and design of the parking to be
provided for Adeeb's patrons and employees. Further, until such time as Gate knows the number
of parking spaces to which Adeeb has a right, Gate is unable to determine whether it is feasible
to construct and operate a Service Station or operate the existing shopping center on the subject
property.
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20. On the basis of the foregoing, Gate respectfully requests a declaratory
adjudication (1) construing the parties' rights and obligations under the Lease, as a matter of law,
in regard to the parking to which Adeeb and/or Beach Diner contend they have a right, and (2)
determining the number of parking spaces to which Adeeb and/or Beach Diner have a right to
under the Lease or otherwise, regardless of whether a Service Station is constructed on the
subject property or the shopping center remains.
WHEREFORE, Plaintiff respectively requests that this Court take jurisdiction of this
cause and render a declaratory adjudication construing the parties' rights and obligations under
the Lease as set forth in Paragraph 20 above, and specifically making a determination as to the
number of parking spaces to which Adeeb and/or Beach Diner have a right.
ROGERS TOWERS, P.A.
By: /s/ A. Graham Allen
A. GRAHAM ALLEN
Florida Bar No. 117110
SCOTT J. KENNELLY
Florida Bar No. 0059116
1301 Riverplace Boulevard, Suite 1500
Jacksonville, Florida 32207
(904) 398-3911 (telephone)
(904) 396-0663 (facsimile)
Attorneys for Plaintiff
Primary Email: gallen@rtlaw.com
Secondary Email: skennelly@rtlaw.com
Additional Email: speirpoint@rtlaw.com
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been served
through the Florida e-filing portal this 10th day of August, 2015:
John A. Tucker, Esquire
Foley & Lardner LLP
One Independent Drive, Suite 1300
Jacksonville, Florida 32202-5017
jtucker@foley.com
jbarr@foley.com
Paul M. Eakin, Esquire
Eakin & Sneed
599 Atlantic Boulevard, Suite 6
Atlantic Beach, Florida 32233-4052
eakinsneed@comcast.net
/s/ A. Graham Allen
Attorney
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