City of Miami Beach v. State ex rel. Pickin' Chicken of Lincoln Road, Inc., No. 60-470

CourtCourt of Appeal of Florida (US)
Writing for the CourtCARROLL, CHAS.; HORTON, C. J., and SMITH, D. R.
PartiesCITY OF MIAMI BEACH, a Florida municipal corporation; D. Lee Powell, Mayor; Marcie Liberman, Bernard Frank, Melvin Richard, kenneth Oka, Harold Spaet, Wolfie Cohen, as Councilmen of the City of Miami Beach; and R. Wm. L. Johnson, City Clerk, Appellants, v. STATE ex rel. PICKIN' CHICKEN OF LINCOLN ROAD, INC., a Florida corporation, Appellee.
Decision Date11 May 1961
Docket NumberNo. 60-470

Page 696

129 So.2d 696
CITY OF MIAMI BEACH, a Florida municipal corporation; D. Lee Powell, Mayor; Marcie Liberman, Bernard Frank, Melvin Richard, kenneth Oka, Harold Spaet, Wolfie Cohen, as Councilmen of the City of Miami Beach; and R. Wm. L. Johnson, City Clerk, Appellants,
v.
STATE ex rel. PICKIN' CHICKEN OF LINCOLN ROAD, INC., a Florida corporation, Appellee.
No. 60-470.
District Court of Appeal of Florida, Third District.
May 11, 1961.

Ben Shepard and Joseph A. Wanick, City Attys., Miami Beach, for appellants.

Ungerleider & Winton, Miami Beach, for appellee.

CARROLL, CHAS., Judge.

This is an appeal by the City of Miami Beach and its governing officials from an adverse judgment granting a peremptory writ of mandamus. The object of the proceeding

Page 697

and the command of the writ were to require the city to issue a liquor license or permit to the relator 'to sell alcoholic beverages for on-the-premises service bar consumption' in the relator's restaurant, located at the corner of Lincoln Road and Collins Avenue.

The city had the power to grant or withhold special liquor licenses or permits in restaurants, beyond its population quota limitations. Section 561.20(4), Fla.Stat., F.S.A. See Davidson v. City of Coral Gables, Fla.App.1960, 119 So.2d 704, 707-708. The city had made provision for such licenses for restaurants meeting certain requirements, 1 but refused the requested license because relator's restaurant was in a district zoned 'D' in which provision was made for liquor licenses only in chartered clubs and in hotels of certain capacity. 2

At the outset we are confronted with a question of jurisdiction. The appellee contends the order appealed from was not final and appealable. Following answer by respondents, the relator moved for summary judgment and also moved for peremptory writ of mandamus notwithstanding the return. The trial court first entered a peremptory writ, then on noting the lack of finality thereof, entered the final order from which the appeal was taken.

Page 698

The requirement that in mandamus, as well as in other actions at law, there must be a final judgment for appeal (Carter v. Warnock, 57 Fla. 49, 49 So. 186; State ex rel. Rhodes v. Goodson, 65 Fla. 475, 62 So. 481; State ex rel. Ware v. City of Miami, Fla.App.1958, 107 So.2d 385) was met by the entry of the judgment awarding or granting to the relator the peremptory writ of mandamus. See State ex rel. Burr v. Seaboard Air Line R. Co., 92 Fla. 61, 109 So. 656, 664; State ex rel. Davis v. Atlantic Coast Line R. Co., 97 Fla. 816, 122 So. 256, 257; State ex rel. Hawkins v. Board of Control of Florida, Fla.1950, 47 So.2d 608, 611, holding that a motion for peremptory writ of mandamus notwithstanding the return contemplates a final order either quashing or dismissing the alternative writ or granting the peremptory writ. The final order here conformed to the procedure for the entry of such final judgments in mandamus, as outlined by Justice Davis in the case of City of Bradenton v. State ex rel. Perry, 118 Fla. 838, 160 So. 506, 508, 100 A.L.R. 400:

'On the completion of the hearing of an application for a peremptory writ of mandamus the usual procedure is for the court to enter its formal judgment awarding or denying the peremptory writ. Such final judgment is usually separate and distinct from the peremptory writ itself, because the peremptory writ is supposed to issue as a consequence of the judgment awarding it. Such peremptory writ of mandamus must conform strictly to the alternative writ, and between the two there must be no variation. City of Bradenton v. State ex rel. Oliver, [117 Fla. 578] 158 So. 165. See, also, Dane v. Derby, 54 Me. 95, 89 Am.Dec. 722; State ex rel. Dox v. Board of Equalization of Johnson County, 10 Iowa 157, 74 Am.Dec. 381.'

The alternative writ, by incorporating the petition, alleged ownership and operation of the restaurant with seating capacity for more than 480 persons and floor space of more than 4,800 square feet. 3 The alternative writ alleged the refusal of the city to grant its requested license because the location was within the 'D' district, and that hotels enjoyed special liquor licenses in the 'D' district, and further alleged as follows:

'VI. Your Petitioner represents that it is entitled to a special license for the sale of alcoholic beverages for on the premises consumption to its patrons in accordance with Florida Statutes Annotated 561.20(2) and it has complied with all the requirements thereof. Florida Statutes Annotated 561.20(2) as follows:

"No such limitation of the number of licenses as herein provided shall prohibit the issuance of a special license at any hotel, motel, or motor court of not less than fifty (50) guest rooms or to any restaurant containing all necessary equipment and supplies for and serving full course meals regularly and having accommodations at all times for service of two hundred (200) or more patrons at tables and occupying more than four (4,000) thousand square feet of space; * * *'.

'Your Petitioner further represents that Ordinance No. 402, Section Six, Amended Ordinance No. 614 is not applicable to this Petitioner in that the same is arbitrary, capricious and unreasonable in that it attempts to create a classification of a 'D' District prohibiting a regular restaurant from serving alcoholic beverages

Page 699

for on premises consumption yet at the same time allowing a hotel of a hundred rooms or more to serve alcoholic beverages for on the premises consumption and furthermore such ordinance is arbitrary, capricious and unreasonable and an unconstitutional exercise of the police powers by the Council of the City of Miami Beach and is highly discriminating against the Petitioner. Furthermore said ordinance is unconstitutional in so far as it is in conflict with Florida Statutes Annotatel 561.20 (2).

'VII. Your Petitioner further represents that Chapter Fifteen, Article I of 'The Code of the City of Miami Beach, Florida 1950' Section 15.7 is arbitrary, capricious, unreasonable and unconstitutional in that the same is an unreasonable exercise of the police power by the Council of the City of Miami Beach and is discriminatory against your Petitioner and imposes requirements that in no way reasonably promote the public health, welfare, safety or morals of the citizens of Miami Beach and furthermore is in direct conflict with Florida Statutes Annotated 561.20(2).'

The respondents' motion to quash the alternative writ was denied. Their answer admitted the allegations relating to the ownership of the restaurant and its capacity for 480 patrons and area of 4,800 square feet and admitted that the license was refused as alleged, because the restaurant was located in the 'D' district in which there was no provision made by the city for a special restaurant license. The answer denied the allegations of the alternative writ quoted above as paragraphs VI and VII thereof. A motion by relator for summary judgment was supported by an affidavit of the secretary of the relator corporation who also...

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7 practice notes
  • Sheley v. Florida Parole Com'n, No. 97-1659
    • United States
    • Court of Appeal of Florida (US)
    • December 31, 1997
    ...v. State ex rel Four Forty, Inc., 76 So.2d 485 (Fla.1954); City of Miami Beach v. State ex rel Pickin' Chicken of Lincoln Road, Inc., 129 So.2d 696 (Fla. 3d DCA 1961); Conner v. Mid-Florida Growers Inc., 541 So.2d 1252 (Fla. 2d DCA 1989). These principles cannot be applied in the present ca......
  • Beshaw v. State, No. 91-227
    • United States
    • Court of Appeal of Florida (US)
    • October 1, 1991
    ...Growers, Inc., 541 So.2d 1252, 1256 (Fla. 2d DCA 1989); City of Miami Beach v. State ex rel. Pickin' Chicken of Lincoln Road, Inc., 129 So.2d 696 (Fla. 3d DCA On the merits, we affirm. The record reflects that the state promptly provided the defendants with discovery materials on the same d......
  • City of Miami Beach v. Lincoln Investments, Inc., No. 68--138
    • United States
    • Court of Appeal of Florida (US)
    • October 1, 1968
    ...establishing liquor zoning districts. See City of Miami Beach v. State ex rel. Pickin' Chicken of Lincoln Road, Inc., Fla.App.1961, 129 So.2d 696. In that case we were called upon to review a judgment granting a peremptory writ of mandamus requiring the city to issue a liquor license to the......
  • Hardage v. City of Jacksonville Beach, No. WW-406
    • United States
    • Court of Appeal of Florida (US)
    • June 19, 1981
    ...required to permit all other modes of sale therein. Gross v. City of Miami, 62 So.2d 418 (Fla.1953). In City of Miami Beach v. State, 129 So.2d 696 (Fla. 3rd DCA 1961), the court cited with approval Gross v. City of Miami, supra, in upholding an ordinance which excluded certain types of liq......
  • Request a trial to view additional results
7 cases
  • Sheley v. Florida Parole Com'n, No. 97-1659
    • United States
    • Court of Appeal of Florida (US)
    • December 31, 1997
    ...v. State ex rel Four Forty, Inc., 76 So.2d 485 (Fla.1954); City of Miami Beach v. State ex rel Pickin' Chicken of Lincoln Road, Inc., 129 So.2d 696 (Fla. 3d DCA 1961); Conner v. Mid-Florida Growers Inc., 541 So.2d 1252 (Fla. 2d DCA 1989). These principles cannot be applied in the present ca......
  • Beshaw v. State, No. 91-227
    • United States
    • Court of Appeal of Florida (US)
    • October 1, 1991
    ...Growers, Inc., 541 So.2d 1252, 1256 (Fla. 2d DCA 1989); City of Miami Beach v. State ex rel. Pickin' Chicken of Lincoln Road, Inc., 129 So.2d 696 (Fla. 3d DCA On the merits, we affirm. The record reflects that the state promptly provided the defendants with discovery materials on the same d......
  • City of Miami Beach v. Lincoln Investments, Inc., No. 68--138
    • United States
    • Court of Appeal of Florida (US)
    • October 1, 1968
    ...establishing liquor zoning districts. See City of Miami Beach v. State ex rel. Pickin' Chicken of Lincoln Road, Inc., Fla.App.1961, 129 So.2d 696. In that case we were called upon to review a judgment granting a peremptory writ of mandamus requiring the city to issue a liquor license to the......
  • Hardage v. City of Jacksonville Beach, No. WW-406
    • United States
    • Court of Appeal of Florida (US)
    • June 19, 1981
    ...required to permit all other modes of sale therein. Gross v. City of Miami, 62 So.2d 418 (Fla.1953). In City of Miami Beach v. State, 129 So.2d 696 (Fla. 3rd DCA 1961), the court cited with approval Gross v. City of Miami, supra, in upholding an ordinance which excluded certain types of liq......
  • Request a trial to view additional results

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