4245 Corp. v. Division of Beverage, No. FF-381

CourtCourt of Appeal of Florida (US)
Writing for the CourtMELVIN; ERVIN; SMITH; SMITH
Citation371 So.2d 1032
Parties4245 CORPORATION, Mother's Lounge, Inc. and Cheetah, III, Inc., Petitioners, v. DIVISION OF BEVERAGE, Respondent.
Docket NumberNo. FF-381
Decision Date18 July 1978

Page 1032

371 So.2d 1032
4245 CORPORATION, Mother's Lounge, Inc. and Cheetah, III, Inc., Petitioners,
v.
DIVISION OF BEVERAGE, Respondent.
No. FF-381.
District Court of Appeal of Florida, First District.
July 18, 1978.

Page 1033

Jennifer Hurst of Tobias Simon, P. A., Miami, for petitioners.

Dennis E. LaRosa, Tallahassee, for respondent.

MELVIN, Judge.

Petitioners, 4245 Corporation, Mother's Lounge, Inc., and Cheetah, III, Inc., bring their petition seeking to overturn the final order of the Division of Administrative Hearings that upheld the validity of a proposed rule of the Division of Beverage. The challenged Rule No. 7A-3.44 relates to "Entertainers, Attire and Conduct" in places of business licensed under the provisions of the beverage law, Division of Beverage. We have jurisdiction. See 4245 Corp., Mother's Lounge v. Div. of Beverage, 348 So.2d 934 (Fla. 1st DCA 1977).

In summary, the proposed rule would forbid any licensee, holding a license under the Division of Beverage, to permit any person on the licensed premises to engage in certain sexual activity or to appear or entertain in a nude or semi-nude state. The proposed rule is set forth in an appendix to this opinion.

Petitioners urge this Court to cast aside the proposed rule as being in violation of their rights under the Constitution of the United States. The petitioners further urge that the proposed rule is invalid in that it exceeds the authority delegated by the Legislature of Florida to the Division of Beverage.

We do not reach the question of the constitutionality of the proposed rule. The proposed rule is invalid as being beyond the scope of authority that the Legislature has granted to the Division of Beverage.

The necessity for, or the desirability of, an administrative rule does not, of itself, bring into existence authority to promulgate such rule. While the Division may well be lauded for its effort to curb the type of gross immoral conduct such proposed rule would prohibit, the Division must first be vested with a valid legislative delegation of regulatory power accompanied by identifiable standards for its exercise. The Division of Beverage is an arm of the executive branch of our State. It may not, therefore, exercise any power properly belonging to the legislative branch unless it is first, by the legislature, duly authorized to do so.

1 Fla.Jur.2d Administrative Law, § 48, relating to rulemaking power provides, in part:

"The rulemaking power which the legislature may validly delegate to administrative agencies must be and is limited by the statute conferring the power. Administrative agencies, when empowered to do so, may make and enforce regulations to carry out powers definitely conferred on them, but they are not permitted to do more. The legislature cannot clothe them with more, and neither may they assume to do more. While an administrative agency may regulate, It may not legislate unless so authorized by the Constitution. Its power to adopt rules and regulations is limited to the yardstick laid down by the legislature. Moreover, the rules and regulations enacted by administrative agencies must be reasonable." (Emphasis supplied)

Thus, it is necessary to examine the statutory authority of the Division to enact the proposed rule.

The Division correctly states that it is empowered with rulemaking authority pursuant to Section 561.11, Florida Statutes (1975), which provides:

"(1) The division shall have full power and authority to make, adopt, amend or repeal rules, regulations, or administrative orders to carry out the purposes of the beverage law."

The Division further cites as authority Section 561.02, Florida Statutes (1975), which provides, in pertinent part that the Division of Beverage shall:

Page 1034

". . . supervise the Conduct, management, and operation of the manufacturing, packaging, distribution, and Sale within the state of all alcoholic beverages and shall enforce the provisions of the Beverage Law and rules and regulations of the division in connection therewith." (Emphasis supplied)

An examination of the Beverage Law: Chapter 561 (Administration); Chapter 562 (Enforcement); Chapter 563 (Beer); Chapter 564 (Wine) and Chapter 565 (Liquor) reveals a comprehensive series of statutes relating to the Division's authority to issue, approve transfers of, renew, revoke and suspend beverage licenses. Further, the statutes provide for the prohibition of the sale of alcoholic beverages to minors, regulation of the hours of sale, penalties for the possession of untaxed alcoholic beverages and penalties for adulterating liquor. A thorough examination of the Beverage Law, however, does not reveal any statute of the requisite specificity remotely granting the Division the authority to regulate dress, or lack thereof, as an incident to supervising the conduct or management...

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5 practice notes
  • Del Percio v. City of Daytona Beach, Nos. 83-155
    • United States
    • Court of Appeal of Florida (US)
    • 29 Marzo 1984
    ...for vagueness. 1 Art. VIII, § 2(b), Fla. Const.; § 166.021(1), (2), Fla.Stat. (1981). 2 See 4245 Corporation v. Division of Beverage, 371 So.2d 1032 (Fla. 1st DCA 3 See Schad v. Borough of Mt. Ephraim, 452 U.S. 61, 101 S.Ct. 2176, 68 L.Ed.2d 671 (1981); Doran v. Salem Inn, Inc., 422 U.S. 92......
  • Eaton v. Coal Par of West Virginia, Inc., No. 82-8491-CIV-JAG.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
    • 13 Febrero 1984
    ...118 So. 478 (1928), and should be liberally construed so as to achieve the Legislature's objective. 4245 Corp. v. Division of Beverage, 371 So.2d 1032, 1034 (Fla. 1 DCA 1978); Telophase Society of Florida, Inc., v. State Board of Funeral Directors & Embalmers, 308 So.2d 606, 608 (Fla. 2......
  • Club 107, In re, No. 85-526
    • United States
    • Vermont United States State Supreme Court of Vermont
    • 11 Agosto 1989
    ...to authority either expressly or impliedly granted to the Board by the Legislature. See, e.g., 4245 Corp. v. Division of Beverage, 371 So.2d 1032, 1033 (Fla.Dist.Ct.App.1978). This is because without a legislative grant of authority enabling the Board to establish and enforce such a prohibi......
  • State, Dept. of Business Regulation, Div. of Alcoholic Beverages and Tobacco v. Salvation Ltd., Inc., Nos. AO-246
    • United States
    • Court of Appeal of Florida (US)
    • 22 Mayo 1984
    ...criteria and, thus, exceeded the "yardstick" laid down by the legislature. See 4245 Corporation v. Division of Beverage, 371 So.2d 1032 (Fla. 1st DCA 1978); State Department Page 67 of Health and Rehabilitative Services v. McTigue, supra. The above statute does not define the term......
  • Request a trial to view additional results
5 cases
  • Del Percio v. City of Daytona Beach, Nos. 83-155
    • United States
    • Court of Appeal of Florida (US)
    • 29 Marzo 1984
    ...for vagueness. 1 Art. VIII, § 2(b), Fla. Const.; § 166.021(1), (2), Fla.Stat. (1981). 2 See 4245 Corporation v. Division of Beverage, 371 So.2d 1032 (Fla. 1st DCA 3 See Schad v. Borough of Mt. Ephraim, 452 U.S. 61, 101 S.Ct. 2176, 68 L.Ed.2d 671 (1981); Doran v. Salem Inn, Inc., 422 U.S. 92......
  • Eaton v. Coal Par of West Virginia, Inc., No. 82-8491-CIV-JAG.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
    • 13 Febrero 1984
    ...118 So. 478 (1928), and should be liberally construed so as to achieve the Legislature's objective. 4245 Corp. v. Division of Beverage, 371 So.2d 1032, 1034 (Fla. 1 DCA 1978); Telophase Society of Florida, Inc., v. State Board of Funeral Directors & Embalmers, 308 So.2d 606, 608 (Fla. 2......
  • Club 107, In re, No. 85-526
    • United States
    • Vermont United States State Supreme Court of Vermont
    • 11 Agosto 1989
    ...to authority either expressly or impliedly granted to the Board by the Legislature. See, e.g., 4245 Corp. v. Division of Beverage, 371 So.2d 1032, 1033 (Fla.Dist.Ct.App.1978). This is because without a legislative grant of authority enabling the Board to establish and enforce such a prohibi......
  • State, Dept. of Business Regulation, Div. of Alcoholic Beverages and Tobacco v. Salvation Ltd., Inc., Nos. AO-246
    • United States
    • Court of Appeal of Florida (US)
    • 22 Mayo 1984
    ...criteria and, thus, exceeded the "yardstick" laid down by the legislature. See 4245 Corporation v. Division of Beverage, 371 So.2d 1032 (Fla. 1st DCA 1978); State Department Page 67 of Health and Rehabilitative Services v. McTigue, supra. The above statute does not define the term......
  • Request a trial to view additional results

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