ISLAMORADA -- While the difference between a farmers market and a flea market remains gray, Administrative Judge Michael Pawelczyk determined that the farmers market hosted by Mile Marker 81 LLC on Upper Matecumbe Key will need a temporary use permit from the village of Islamorada to continue in the future. Otherwise, a $250 fine will be imposed for each violation.
In February, the village determined that the farmers markets operating at 80939 Overseas Highway, 81001 Overseas Highway and 88720 Overseas Highway had to cease business immediately due to the potential public health risk, the increased size of the markets and the burden to the adjacent neighborhoods. Village staff further determined that the farmers markets required temporary use permits which have been temporarily paused due to the ongoing COVID-19 pandemic.
Jae Jans, who owns Mile Marker 81 LLC, requested the hearing to defend his farmers market, which he had been hosting every Sunday since 2017 in front of his Gypsy Café and Brewhouse, a commercial storefront.
The issue of whether these weekly markets are farmers markets, events or flea markets has embroiled village staff and market operators over the last several weeks.
Village planning director Ty Harris said farmers markets are limited to selling agriculture products. Jans' market offers more than just food products.
“The property is interesting. It already has two businesses there operating legally. The farmers market started a few years ago. It started with four tents set up on the grass and parking was still available,” he said. “What happened recently is this business has expanded exponentially. There are now 40 tents.”
Palm reading, singers and plastic furniture aren’t agricultural products, Harris said to Pawelczyk.
Farmers markets are a permitted use in a “highway commercial zoning district” on less than a weekly basis but must remain under 3,000 square feet or less, according to current village code.
“This matter is not about traffic or parking. It’s not about mask enforcement or public safety. It’s not about permitting. Principally, it’s the village interfering with my client’s use of his property,” said Angelo Martin, the lawyer defending Mile Marker 81.
“Mile Marker 81 LLC does not conduct operations that would necessitate a temporary use permit. A TUP is for a defined period of time or uniquely temporary or seasonal in nature. There’s nothing temporary or seasonal about my client’s business. In fact, it’s been more permanent than temporary for the last four years. It’s an accepted use as the landowner.”
The village's definition of a farmers market versus a flea market is “capricious,” according to Martin.
“The moral of the story here is that a number of these products are found in a number of farmers markets across the state of Florida," he said. "The village should go through the proper legislative process and take public comment on defining a farmers market. It’s not unusual to see art and jewelry being displayed at a farmers market. The village has a very narrow and short-sighted approach to what a farmers market is."
The administrative judge did not agree. Going forward, Mile Marker 81 will be fined $250 for each violation if it continues to operate without a permit.
“I don’t like being put into difficult situations, but I believe that this type of use that is being described and has been evidenced does require a temporary use permit,” Pawelczyk said. There does need to be a TUP for this type of use. I don’t think it matters if it’s a farmer’s market, a flea market or a sidewalk sale. Or, they can apply for an accessory use permit and stay within the parameters of that definition. I’m going to fine the respondent in both case numbers and each time it will be $250 per violation. If the case comes back to me, it would be a repeat violation.”
Martin said he intends to appeal the decision on behalf of his client, Jans.
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