City of Wilton Manors v. Starling, 1401

Decision Date20 May 1960
Docket NumberNo. 1401,1401
PartiesCITY OF WILTON MANORS, Florida, a municipal corporation, et al., Appellants, v. J. Frank STARLING et al., Appellees.
CourtFlorida District Court of Appeals

Frank B. Akerman and Mildred S. Akerman, Fort Lauderdale, for appellants.

Warren O. Windle, Fort Lauderdale, for appellees.

ALLEN, Chief Judge.

This is an appeal from a final order of the lower court holding a municipal ordinance of the appellant city invalid.

The facts are not in dispute and sole question on appeal is the validity of the subject ordinance.

On December 18, 1956, appellant enacted ordinance No. 74 relating to the retail sale of alcoholic beverages. Section 1 of the ordinance defined 'Restaurant Bar' and among other items, required that such a bar be a service bar and prohibited bar stools at such bar.

Subsequent to the enactment of the above ordinance, a special license for the retail sale of alcoholic beverages for consumption on the premises was issued on December 18, 1958, by the appellant to Manor Flame Restaurant and Lounge, Inc., which is owned and operated by the appellee. On February 12, 1959, the State and Broward County issued a special license for consumption of alcoholic beverages on the premises to appellees.

On February 20, 1959, appellee was arrested for violating ordinance No. 74 in that appellee operated a restaurant bar in the Manor Flame Restaurant and Lounge and permitted patrons to be served alcoholic beverages while occupying bar stools at the bar. Appellee filed a suit for declaratory decree seeking to have ordinance No. 74 declared invalid.

After a hearing on the cause, the lower court entered a final decree holding ordinance No. 74 invalid by stating:

'Section I thereof is hereby determined to be invalid for the reason that it is in contravention of the State statutes pertaining to the authority of municipalities to regulate and control the sale of alcoholic beverages. The authority for this Order is City of Miami v. Kichinko, 22 So. 630. (sic)' [156 Fla. 128, 22 So.2d 627]

Ordinance No. 74 is entitled:

'An ordinance amending Ordinance No. 7 to define 'Restaurant Bar' and re-defining 'Hotel Bar' and amending the provisions for the requirements and operation of bars holding the aforementioned licenses and for the transfer of said licenses.'

Section I, which was declared invalid by the lower court, supra, provides:

"Restaurant Bar' means a bar operated in connection with a restaurant and by the same owner or management, and in a business zoned area, which restaurant has all necessary equipment and supplies for and serves full course meals regularly and where the principal business is the serving of meals and having accommodations at all times for service of 200 or more patrons at tables and occupying more than 4,000 square feet of space. The restaurant bar must be directly connected with such dining room, must be a service bar for patrons of such restaurant, and no stools shall be permitted at such bar and intoxicating liquors must be sold by the drink only from said bar. No package goods shall be sold from said bar, nor shall a package store be permitted upon the premises. Only one restaurant bar, license as provided in Ordinance No. 7, Section .02, Sub. (2), Sub. (c), permitted to be operated at such location in connection with such dining room, and such license cannot be moved to new location, and must be issued in the name of the owner or management. Such license, or any renewal thereof, must be marked 'Special'. The sale of beers, wines and liquors shall be prohibited except during the time the restaurant is actually engaged in and open to the public for the service of full course meals. No sign of any kind or character shall be displayed on the restaurant or bar visible from the outside, denoting that alcoholic beverages are sold therein.'

In passing upon the validity of a municipal ordinance, a construction should be accorded thereto so as to render the ordinance legal, if possible, and the reviewing court should construe it so as to give a reasonable effect to its provisions. City of Miami v. Kayfetz, Fla.1957, 92 So.2d 798. The courts of this and other states are always reluctant to declare a municipal ordinance invalid in view of the principle that the citizens of a municipality through their local legislative body should be permitted to determine what regulatory measures are needed for their own self-government. State ex rel. Harkow v. McCarthy, 126 Fla. 433, 171 So. 314; City of Tacoma v. Keisel, 68 Wash. 685, 124 P. 137, 40 L.R.A.,N.S., 757.

In order to be upheld the ordinance must have been enacted within the powers of the municipality and be reasonable, equal, and impartial in operation. It is fundamental, however, that municipal ordinances are inferior in status and subordinate to the laws of the state. Accordingly, an ordinance must not conflict with any controlling provision as principle of law, and if any doubt exists as to the extent of a power attempted to be exercised which may affect the operation of a state statute, the doubt is to be resolved against the ordinance and in favor of the statute. See City of Coral Gables v. Seiferth, Fla.1956, 87 So.2d 806; Ex parte Wise, 141 Fla. 222, 192 So. 872; 23 Fla.Jur. Municipal Corporations, sec. 93.

Municipal ordinances in the field of legislation affecting the subject of alcoholic beverages have presented...

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8 cases
  • Thomas v. State
    • United States
    • Florida District Court of Appeals
    • March 28, 1991
    ... ... No person shall ride a bicycle on the streets of the city without having a bell or gong with which to warn ... 1184, 25 L.Ed.2d 435 (1970); see also, City of Wilton Manors v. Starling, 121 So.2d 172 (Fla. 2d DCA 1960). The ... ...
  • City of Miami Beach v. Fleetwood Hotel, Inc.
    • United States
    • Florida Supreme Court
    • April 12, 1972
    ...the operation of a state statute, the doubt is to be resolved against the ordinance and in favor of the statute. City of Wilton Manors v. Starling, 121 So.2d 172 (Fla.App.1960), City of Coral Gables v. Seiferth, 87 So.2d 806 Section 16 A.5 D provides: 'It shall be unlawful for any person to......
  • Retail Credit Company v. Dade County, Florida
    • United States
    • U.S. District Court — Southern District of Florida
    • April 25, 1975
    ...body should be permitted to determine what regulatory measures are needed for their own self government. Wilton Manors v. Starling, 121 So.2d 172 (2nd D.C.A.Fla.App.1960). In Prior v. White, 132 Fla. 1, 180 So. 347 (1938), the Florida Supreme Court held invalid a municipal ordinance declari......
  • Mayhue v. City of Plantation, Florida
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • May 17, 1967
    ...are needed for their self-government. State ex rel. Harkow v. McCarthy, 1936, 126 Fla. 433, 171 So. 314; City of Wilton Manors v. Starling, Fla. App.1960, 121 So.2d 172. Such legislative declarations concerning public conditions and necessities are entitled to great respect, Block v. Hirsh,......
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