375 F.2d 447 (5th Cir. 1967), 22945, Mayhue v. City of Plantation, Florida

Docket Nº:22945.
Citation:375 F.2d 447
Party Name:Carl L. MAYHUE, doing business as Mayhue's Super Liquor Store, Appellant, v. CITY OF PLANTATION, FLORIDA, Appellee.
Case Date:March 30, 1967
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 447

375 F.2d 447 (5th Cir. 1967)

Carl L. MAYHUE, doing business as Mayhue's Super Liquor Store, Appellant,



No. 22945.

United States Court of Appeals, Fifth Circuit.

March 30, 1967

Rehearing Denied May 17, 1967.

Richard E. Reckson, Eugene C. Heiman, Heiman & Heiman, Miami, Fla., for appellant.

James J. Linus, McCune, Hiaasen, Crum & Ferris, Fort Lauderdale, Fla., for appellee.

Before JONES, WISDOM and GOLDBERG, Circuit Judges.

Page 448

GOLDBERG, Circuit Judge:

Appellant Carl L. Mayhue, d/b/a Mayhue's Super Liquor Store, possessing dual licenses from the State of Florida and the City of Plantation authorizing the sale of alcoholic beverages in packages for consumption off premises, 1 and operating a liquor package store within the corporate limits of appellee, filed this action under 28 U.S.C.A. §§ 1331, 2201, and 2202, requesting that an injunction be issued against the City of Plantation, Florida prohibiting the enforcement of Ordinance No. 257 2 and seeking to recover damages from the city resulting from enforcement of the Ordinance. After testimony of the first witness, who established monetary damages, the action below was dismissed, on the ground that as a matter of law Ordinance No. 257 did not create an arbitrary classification or discriminate against appellant and therefore did not violate the equal protection clause of the fourteenth amendment. 3 We disagree.


In passing upon the validity of a municipal ordinance, every effort is made to construe the ordinance as legal, in view of the principle that citizens through their local legislature are best suited to determine what regulatory measures 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

Page 449

and necessities are entitled to great respect, Block v. Hirsh, 256 U.S. 135, 154, 41 S.Ct. 458, 459, 65 L.Ed. 865, 870 (1920), but they are not sacrosanct. As the Supreme Court said in Chastleton Corp. v. Sinclair, 264 U.S. 543, 547, 44 S.Ct. 405, 406, 68 L.Ed. 841, 843, when faced with construing the validity of a rent control order.

'We repeat what was stated in Block v. Hirsch (Hirsh) * * * as to the respect due to a declaration of this kind by the legislature * * *. But * * * a court is not at liberty to shut its eyes to an obvious mistake, when the validity of the law depends upon the truth of what is declared.'

In order to be upheld, the attempted classification or regulation must have been enacted within the powers of the municipality and must be reasonable, and impartial in operation. City of Wilton Manors v. Starling, supra. It must, moreover, accomplish the purpose for which it was created without undue discrimination. Morey v. Doud, 354 U.S. 457, 465, 77 S.Ct. 1344, 1350, 1 L.Ed.2d 1485, 1491 (1957).

The State of Florida has expressly reserved to its incorporated municipalities the power and right to regulate the hours and location of the sale of intoxicating liquors within the corporate limits of such municipality. 4 This reservation, however, has been held not to include the right of a municipality to regulate the method of sale of alcoholic beverages. In Simpson v. Goldworm, 1952, 59 So.2d 511, the court was faced with a zoning ordinance which adversely affected the right of vendors holding consumption on premises licenses by regulating the precise method of sale within those premises. When declaring the Ordinance invalid, the court stressed the fact that a dealer holding a consumption on premises license is expressly authorized by statute to sell liquor by the drink or in containers for consumption on or off the premises and that a municipality through its police power cannot deprive such vendor of the right to sell alcoholic beverages in the manner prescribed by general law without special statutory authority to do so. The municipality could regulate the hours of opening and closing, but could not regulate the commodity to be sold when the premises were permitted to be open. Legislation with respect to the commodities to be sold is within the domain of the state and has not been reposed in the municipalities of Florida. Accord, City of Wilton Manors v. Starling, supra, where another attempt by a municipality was made to regulate the method of sale by restaurant bars which hold consumption on premises licenses and was declared invalid.

The sale of intoxicating liquor, moreover, is not a brigandage business. It has been historically and legislatively legitimized and is within the constitutional pale and protection. This Court, in Hornsby v. Allen, 5 Cir. 1964, 330 F.2d 55, 56, held that:

'The liquor business is like any other business in that the state is limited in its regulation of it by due process and equal protection requirements, although the peculiar nature of the business warrants the imposition of severe limitation on liquor traffic and tight restrictions on those persons engaged in it.'

Appellee here contends that Ordinance 257 was a reasonable classification between on and off premise sales of alcoholic beverages and, therefore, was a valid hour regulation authorized pursuant to Fla.Stat.Ann.§ 562.45 (1962). The Ordinance, in its disputed portion, purported to prevent Sunday package sales by prohibiting sale of liquor for consumption off...

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