City of Miami Beach v. State Ex Rel. Patrician Hotel Co.

• Decision Date: 28 January 1941
• Citation: 200 So. 213,145 Fla. 716
• Parties: CITY OF MIAMI BEACH et al. v. STATE ex rel. PATRICIAN HOTEL CO. et al.
• Court: Florida Supreme Court

200 So. 213

145 Fla. 716

CITY OF MIAMI BEACH et al. v. STATE ex rel. PATRICIAN HOTEL CO. et al.

Florida Supreme Court, Division A.

January 28, 1941

Rehearing Denied Feb. 20, 1941.

Error to Circuit Court, Dade County; Worth W. Trammell, Judge.

Proceeding by the State of Florida on the relation of the Patrician Hotel Company and William C. Wisdom against the City of Miami Beach, a municipal corporation, and others, for a writ of mandamus commanding respondents to issue a retail vendor's liquor license. Judgment awarding peremptory writ on motion therefor notwithstanding the return, and respondents bring error.

Reversed.

COUNSEL

J. Harvey Robillard, of Miami, Beach, and V. B Rutherford, of Miami, for plaintiffs in error.

Marion E. Sibley, of Miami, for defendants in error.

OPINION

BUFORD Justice.

Writ of error brings for review judgment awarding peremptory writ of mandamus on motion for peremptory writ notwithstanding the return.

The command of the alternative writ entered on the 6th day of August, 1940, is that the respondents do 'forthwith issue to William C. Wisdom a retail vendor's liquor license for the taxable year of 1939-1940 on the premises known as Lot 9 of Block 54 of Orchard Subdivision, Nos. 3 and 4, a subdivision located in the City of Miami Beach, Dade County Florida, or show cause before this Court at the hour of ten o'clock on Thursday, the 8th day of August, 1940, why a peremptory writ of mandamus should not issue against you.'

The command of the peremptory writ addressed to the respondents is, 'to forthwith issue to relators, William C. Wisdom and Patrician Hotel Company a retail vendor's liquor license as required by Ordinance No. 391 as amended and a night club license for the taxable year beginning October 1 1940, and ending October 1, 1941, and to issue and renew said license from year to year thereafter as in Ordinance No. 391 is required.'

No rule in mandamus proceedings is more thoroughly established in this as well as in other jurisdictions than that the command of the peremptory writ must follow the command of the alternative writ and cannot be broader in its terms than the alternative writ. See Pritchard v. State ex rel. Barrs, 111 Fla. 122, 149 So. 58; City of Bradenton v. State ex rel. Oliver, 117 Fla. 578, 158 So. 165; City of Bradenton v. State ex rel. Perry, 118 Fla. 838, 160 So. 506, 100 A.L.R. 400, and authorities cited in those opinions respectively.

That the peremptory writ is broader and materially different from the alternative writ is readily apparent and, therefore, we would be required to enter an order of reversal of the judgment for this reason alone if there appeared on other reason for reversal but our conclusion is that the record discloses other conditions requiring reversal.

The record shows that the application for license 'to conduct the business of retail vendor selling beverages consumed on the premises regardless of alcoholic content' was made on the 21st day of November, 1939, by William C. Wisdom and no one else. That no license had theretofore been issued to William C. Wisdom. That no application has been made by Patrician Hotel Company, a corporation, for such a license under the provisions of Ordinance No. 391, or otherwise, since October 1, 1938.

The Patrician Hotel Company, a corporation, was not mentioned in the application, supra, filed by Wisdom. So it is there was no showing that it was the duty of respondents to issue a license to Patrician Hotel Company.

The pertinent provisions of Ordinance No. 391, as amended, are:

'Section 2. That from and after the date when this ordinance becomes effective, no person shall engage in, manage, operate or cause to be operated the business of vendor, as defined herein without first procuring a City license therefor as herein provided, and pay the amounts hereinafter fixed and required by this ordinance. He shall make sworn application to the City Clerk on forms provided by said clerk for that purpose of which shall be given the name, occupation and place of business, together with the names of the officers or members of the firm or individuals engaged in such business together with such further information as may be required and the applicant for such license shall give the names of five business or professional men as reference, who may be called upon by the City of Miami Beach, should it deem advisable for information as to the character, business integrity and past history of the person, firm or corporation applying for a license under the terms and conditions of this ordinance.

'Such application together with notice as to when said application shall be considered by the City Council shall be published by the City Clerk once each week for two (2) consecutive weeks in two (2) newspapers published in the City of Miami Beach, at the expense of the applicant, immediately prior to the date of the hearing thereof, at which time any person interested may appear and object to the granting of license to said applicant. Thereafter the City Council shall consider said application and either grant or reject same according to its best judgment and discretion. Provided, that where an applicant shall have been granted a license under this ordinance and such license and continuation thereof have not been revoked and his qualifications not impaired, such applicant shall be entitled to receive licenses for succeeding years as a matter of course, upon application to the City Clerk and the payment of the tax.'

'Section 4. No license or licenses issued under the provisions of this ordinance shall be transferable or assignable from one person to another, nor from one location to another.'

'Section 4 1/2. No license shall be issued to a retail vendor to sell beverages consumed on the premises, regardless of alcoholic content as provided in Sub-section 'G' and Sub-section 'I' of Section 7 hereof in any place of business located within five hundred (500) feet in an air line measured from main entrance to main entrance in which there is already a retail vendor licensed either under Sub-section 'G' or 'I', nor shall such license be issued during the period in which an existing license is renewable as a matter of course as provided in Section 2 hereof.'

And paragraph 'G' and 'I' of Section 7, viz:

(g) 'Retail vendor selling beverages consumed on the premises, regardless of alcoholic content ..... $750.00'

(i) 'Clubs, as defined herein ..... $125.00'

The allegations of the alternative writ, inter alia, are:

'3. On the 27th day of January, 1938, a final judgment was rendered in said mandamus proceedings in favor of the relator Patrician Hotel Company, and thereafter on the 28th day of January, 1938, a peremptory writ of mandamus was issued requiring the City Council and the City Clerk of the City of Miami Beach to forthwith issue to relator a retail vendor's liquor license and a night club license for the taxable year of 1937-1938 upon the property above described. Thereafter said licenses were issued in compliance with said peremptory writ and the said property was operated as a night club restaurant and high class bar dispensing alcoholic beverages to be consumed upon the premises. Said licenses expired on October 1, 1938.

'4. On towit the--day of March, 1938, M. Lewis Hall, Esquire, was appointed receiver of the Patrician Hotel Company in a suit filed by one Dorothy Evans as plaintiff, against the Patrician Hotel Company and others as defendants. Thereafter the receiver took possession, charge and control of all the assets of the Patrician Hotel Company, including the property above described. On October 1, 1938, said liquor license so issued to the relator Patrician Hotel Company for the property above described expired under the terms and provisions of said Ordinance No. 391, a true copy of which as amended is hereto attached, marked Exhibit A and made a part hereof.

'Due to the said receiver's proceedings it was found impracticable and impossible and undesirable to the appointing court for the receiver to operate the said property as a bar or night club, and for that reason no application was made by the receiver for the issuance of a renewal of said licenses. Since the expiration of said licenses on October 1, 1938, the said property has not been used for the purposes for which it was constructed, nor has it been put to any other use, but it has remained vacant and idle due, nevertheless, to the inability of the receiver to operate said business by reason of the financial condition of the Patrician Hotel Company at the time of the appointment of said receiver.

'The Patrician Hotel Company never abandoned the uses for which the property was constructed and it has intended at...