City of Miami v. State ex rel. Shehan

• Decision Date: 22 October 1946
• Citation: 158 Fla. 56,27 So.2d 829
• Parties: CITY OF MIAMI v. STATE ex rel. SHEHAN.
• Court: Florida Supreme Court

27 So.2d 829

158 Fla. 56

CITY OF MIAMI v. STATE ex rel. SHEHAN.

Florida Supreme Court

October 22, 1946

Rehearing Denied Nov. 12, 1946.

Appeal from Circuit Court, Dade County; George E. Holt Judge.

J. W Watson, Jr., and Franklin Parson, both of Miami, for appellant.

Louis M Jepeway, of Miami, for appellee.

CHAPMAN, Chief Justice.

On May 21, 1946, a peremptory writ of mandamus issued out of the Circuit Court of Dade County, Florida, upon the relation of Wadell L Shehan directing and commanding the City of Miami to issue to the relator Shehan, upon his application and payment of the license tax required by law, licenses to retail liquor package goods at three locations in Miami Florida, viz.: (a) At 340 N.W. 14th Street; (b) 1327 N.W. 3rd Avenue; and (c) 1022 N.W. 2nd Avenue. The City of Miami filed in the lower court a certificate of compliance and perfected its appeal here.

Counsel for appellant pose four questions here for adjudication, but our study of the transcript and applicable authorities suggests the conclusion that each of the propounded questions may be sufficiently answered by submitting an answer to the question raised and insisted upon by counsel for the appellee, viz Did the lower court err in issuing the peremptory writ of mandamus in the case at bar when following the rule of law enunciated by this Court in the recent case of Mechlow v. Vocelle, as reported in Fla., 22 So.2d 631?

Decided by this Court on June 29, 1945, along with Mechlow v. Vocelle was the case of City of Miami v. Kichinko, 22 So.2d 627. Our opinion in Mechlow v. Vocelle (and companion case of Moaba v. Vocelle), text 22 So.2d 631, is viz.:

'Both these cases involve the question of whether or not Ordinance No. 1526 as amended by Ordinance No. 2735, as further amended by Ordinance No. 2161, authorizes the City of Miami to limit the number of liquor distribution places within the City in view of the provisions of the State Beverage Act, F.S.A.§§ 561.01 et seq., 562.01 et seq.

'In our view, this question was answered by us in William D. Singer et al. v. Scarborough et al., 155 Fla. 357, 20 So.2d 126. So the motion for peremptory writ of mandamus notwithstanding the return is granted on authority of the last-cited case. See also City of Miami v. Paul Kichinko, Fla., 22 So.2d 627'.

The question of whether or not Ordinance No. 1526 as amended by Ordinance No. 2735, as further amended by Ordinance No. 2161, authorized the City of Miami to limit the number of liquor distribution places within the City of Miami in view of the provisions of the State Beverage Act F.S.A. §§ 561.01 et seq. and 562.01 et seq., was considered and decided by us in Mechlow v. Vocelle, supra. Section 561.44, F.S.A., provides that, No license under subsections (3), (4), (5), (6), (7) or (8) of Section 561.34, F.S.A. shall be granted to a vendor whose place of business is or shall be within 2500 feet of an established school or church, except in incorporated cities and towns, which said incorporated cities and towns are hereby given the power hereafter to establish zoning ordinances restricting the location wherein such licensee may be permitted to conduct such place of business and no license shall be granted to any such licensee to conduct a place of business in a location where such place of business is prohibited from being operated by such municipal ordinance.

It is clear that the statute gives to the cities and towns of Florida the power to restrict, fix and determine the location of places within such city or town where a licensee can sell intoxicants, and the method of restricting the location of the licensee within the city or town under the statute is by zoning ordinances duly enacted. The statute provides further that 'no license shall be granted to any such licensee to conduct a place of business in a location where such place of business is prohibited from being operated by such municipal ordinance.'

Section 562.45, F.S.A., fixes the several penalties to be imposed against those found guilty of violating the provisions of the Beverage Act. The terms of this Section reaffirmed certain powers with reference to liquors in the towns and cities of Florida. 'Nothing in the beverage act contained shall be construed to affect or impair the power or right of any incorporated town or city of the state hereafter to enact ordinances regulating [1] the hours of business, [2] the location of places of business; and [3] prescribing sanitary regulations therefor, of any licensee under the beverage law within the corporate limits of such city or town.'

The appellant, City of Miami, by the terms of the peremptory writ of mandamus in the case at bar, was commanded to issue to the relator licenses to retail liquor package goods at three designated places wtihin said city. Subsection (3) of Section 561.34, F.S.A., provides for the issuance of such a license, but the State of Florida can not issue the same when the vendor's place of business is located within 2500 feet of a school or church, except incorporated cities and towns are granted, by the provisions of Section 561.44, F.S.A., the power to fix and determine the place or location where the vendor shall operate within cities and towns of Florida, which power under the aforesaid section is left to these municipalities to regulate by an appropriate zoning ordinance lawfully enacted. It is likewise unlawful to operate such a package store in a location within cities or towns where such places of operation are prohibited by the terms of said ordinance.

Ordinance No. 1526, referred to in Mechlow v. Vocelle, supra, was passed and adopted by the City of Miami June 24, 1936. Ordinance No. 2735 was adopted January 20, 1943. Ordinance No. 2161 was enacted by the City of Miami on August 16, 1939. Sections 561.34, 561.44, 562.45 and 168.07 F.S.A., and Chapter 10847, Special Acts of 1925, being the Charter of the City of Miami, with subsequent amendatory Acts, it is asserted constitute the charter power authorizing the enactment of the aforesaid ordinances.

The power of the City of Miami to limit the number of liquor distribution places within the city, as recited in the opinion in Mechlow v. Vocelle, supra, under the several provisions of the State Beverage Act and the Ordinances of the city, was by this Court denied and the authority therefor was our ruling in Singer v. Scarborough, 155 Fla. 357, 20 So.2d 126 when we said: 'It (the Beverage Act) does not attempt to limit the number of licenses that may be issued nor does it give municipalities general power to regulate. It does vest in municipalities power to fix by ordinance hours of sale, location, and to prescribe certain sanitary regulations under which intoxicating beverages may be sold.' It is quite true that Ordinance No. 2161 was referred to, and 'the only question presented is whether or not a permit or license from the city may be required as a condition precedent to granting a State license to sell intoxicating beverages.' The opinion recites further that 'the...