Beverly v. Division of Beverage of Dept. of Business Regulation

• Decision Date: 06 September 1973
• Docket Number: No. S--426,S--426
• Parties: Andrew M. BEVERLY et al., Appellants, v. DIVISION OF BEVERAGE OF the DEPARTMENT OF BUSINESS REGULATION, the Department of Business Regulation of the State of Florida, et al., Appellees.
• Court: Florida District Court of Appeals

Page 657

282 So.2d 657

Andrew M. BEVERLY et al., Appellants, v. DIVISION OF BEVERAGE OF the DEPARTMENT OF BUSINESS REGULATION, the Department of Business Regulation of the State of Florida, et al., Appellees.

No. S--426.

District Court of Appeal of Florida, First District.

Sept. 6, 1973.

Rehearing Denied Oct. 3, 1973.

Thomas F. Woods, of Woods & Johnston, and Carl R. Pennington, Jr., of Pennington & Wilkinson, Tallahassee, for appellants.

Herbert M. Klein, Miami, and J. Riley Davis, Tallahassee, for appellees.

PER CURIAM.

Appellants seek review of an Order of the Circuit Court of Leon County holding that no license to sell alcoholic beverages is presently available for issuance to appellants in Leon County.

Each of the appellants had initially applied to the Beverage Director for the issuance of a license to sell alcoholic beverages in Leon County. The Beverage Director denied the applications on the ground that no such license was available in Leon County. The appellants then joined together and filed a declaratory judgment suit seeking to establish that there is an available license in the County. As noted by the lower court:

'None of the plaintiffs claim that there is more than one license available, but they all contend that there is one, and each feels entitled to that one. So the plaintiffs are working together to establish the availability of one license, however, if they are successful in that endeavor they will then contend among themselves for that one license.'

The Circuit Court upheld the position of the Beverage Director and concluded that there is no quota license available at this time for issuance to any of the appellants so as to authorize the operation of a liquor store in Leon County. The plaintiffs below now seek reversal of that Order.

The facts of this cause are not in dispute, and the only issue for our determination is whether the trial court erred in its conclusion that the revocation of a previously existing liquor license rendered said license non-existent in view of a Special Act effective May 2, 1963.

Prior to February 22, 1962, the Skyline Restaurant in Tallahassee was the holder of a validly issued quota liquor license. At that time, the number of licenses which could be issued was limited by general statutory law to one license for each twenty-five hundred residents in the unincorporated areas of Leon County. And, prior to said date, all licenses which could be issued under such quota system had in fact been issued and were outstanding. On February 22, 1962, the 'Skyline Restaurant' license was revoked, and no applications for said license were filed before May 2, 1963. ¹ On said date, a Special Act, Chapter 63--1561, Acts of 1963, was enacted by the Legislature limiting the issuance of quota liquor licenses in the unincorporated areas of Leon County to one such license for each five thousand inhabitants. This resulted in Leon County being over-quoted, Except for Section 3 of said Act which provided as follow:

'The terms and provisions of this Act shall not prevent nor prohibit the continuous renewal of any licenses Heretofore issued.'

Hence, the pivotal question is whether or not the revoked 'Skyline Restaurant' license was an existing, but unissued, license. The appellants contend that the 1963 Special Act did not destroy the availability for reissuance of the remaining quota license in Leon County and that the revoked license is still legally available for reissuance. It is alleged that since said license was available for reissuance prior to the Special Act, it was available after the Act due to Section 3 which 'grandfathered in' all existing licenses. Appellants further contend that it was the obvious intention of the Legislature that the number of licenses issued in Leon County would not be reduced, but in essence would be frozen at the then existing number until such time as the population of the county increased. To hold otherwise, assert appellants, would constitute a retroactive application of the Special Act. The mere fact that no individual was desirous of having the unissued license issued to him, contend appellants, should not and could not render such a valid, existing license void.

The Division of Beverage takes the contrary position that to issue appellants a license would be contrary to the present quota limitations imposed upon Leon County by the Special Act of May 2, 1963. It is urged that the obvious purpose of said Act was to effectively limit the number of quota liquor licenses available in the County for many years to come and to reduce the number of liquor stores in proportion to the population if and when a quota license were revoked. Section 3 of the Special Act, asserts appellee, was inserted for the protection of the then holders of valid licenses and was not intended to permit a non-licensee to obtain a license. It is further contended that the Beverage Division Director cannot be compelled to reissue a revoked license and that in view of the Special Act, the revoked 'Skyline Restaurant' license is not legally available for reissuance or renewal under the laws of the State of Florida.

It appears to be agreed by all the parties herein, as well as the lower court, that prior to the effective date of the Special Act, the revoked license in question was available for reissuance to some applicant in the discretion of the Beverage Director. Hence, to restate the issue once again, the question for our determination is whether or not the Special Act's savings clause, Section 3 thereof, is applicable to the revoked license.

A careful consideration of the following points has led us to conclude that the revoked 'Skyline Restaurant' license is available for reissuance. First of all, we note with particular interest the difference in language between the savings clauses in the 1963 Special Act and the general law prevailing at the same time. The general statutory law provides in part that:

'The limitation upon the number of such licenses to be issued . . . shall not apply to existing licenses nor to the renewal or transfer of such licenses But upon the revocation of any existing license no renewal thereof or new license therefor shall be issued contrary to the limitations herein prescribed. F.S. § 561.20(3), F.S.A. (Emphasis supplied.)

Had the position asserted by appellee herein been intended by the Legislature, it would have been a very simple matter for them to insert such language in the Special Act of 1963. Instead, they close to use the following language:

'The terms and provisions of this act shall not prevent nor prohibit the Continuous renewal of Any licenses Heretofore issued.' (Emphasis supplied.)

It is a rule of statutory construction that general and special statutes should be read together and, if possible, harmonized. However, in the event of a conflict, the special statute will prevail in the absence of a clear legislative intent to the contrary. 30 Fla.Jur., 'Statutes', § 115. Hence, it is our feeling that the particular language used in Section 3 of the 1963 Special Act refutes appellee's contention that a revoked license...