City of Miami v. Kichinko

• Decision Date: 29 June 1945
• Citation: 22 So.2d 627,156 Fla. 128
• Parties: CITY OF MIAMI v. KICHINKO.
• Court: Florida Supreme Court

22 So.2d 627

156 Fla. 128

CITY OF MIAMI v. KICHINKO.

Florida Supreme Court

June 29, 1945

Rehearing Denied July 17, 1945.

Appeal from Circuit Court, Dade County; Ross Williams Judge.

J. W Watson, Jr., of Miami, for appellant.

Hoffman & Durant, Carl T. Hoffman, N. J. Durant, and Sam C Matthews, all of Miami, for appellee.

PER CURIAM.

Bill of complaint was filed in the Circuit Court of Dade County, Florida seeking a declaratory judgment under chapter 21820, Acts of 1943, F.S.A. § 87.01 et seq., to determine the validity or non-validity of section 3 of Ordinance 2161 of the City of Miami adopted August 16th, 1939.

Motion to dismiss was properly denied.

Section 3 of the ordinance which is under attack here is as follows:

'Section 3. From and after the passage of this Ordinance, no vendor's liquor license, for the sale of Liquor to be consumed on or off the premises shall be issued to any person, firm or corporation, as applicant therefor, in excess of one license for each three thousand (3000) persons within the City of Miami, according to the last State or Federal census, and in no event shall the number of Vendor's liquor licenses issued by the City of Miami exceed one license for each three thousand (3000) persons within the City of Miami, according to the latest State or Federal census.

'From and after the passage of this Ordinance, no distributor's liquor license for the sale of liquor at wholesale shall be issued to any person, firm or corporation by the City of Miami, Florida, in excess of one license for each twenty-five thousand (25,000) persons within the City of Miami, Florida, according to the latest State or Federal census, and the total number of distributor's liquor licenses for the sale of liquor at wholesale to be issued by the City of Miami shall not exceed one such distributor's license for each twenty-five thousand persons within the City of Miami, Florida, according to the latest State or Federal census. (a) The above provisions shall not apply to any application for a license to sell liquor at retail or wholesale on the part of any person, firm or corporation, where such person, firm or corporation has held an annual or six months license from the City of Miami during the preceding license year for the same business the applicant desires to renew or continue at the same or other place of business within the city of Miami, and the right to renew a license to sell liquor, or to obtain such license in any year for the same business, and to thereby continue in the same business in Miami, Florida, from year to year, or season after season, shall not be affected by this Section; nor shall any person, firm or corporation now so engaged and licensed to sell liquor, or who has been so engaged and licensed during the preceding year, or who may be hereafter so engaged and licensed, be, by reason of this Section, prevented from renewing his license for the same business during the next license year, or from obtaining a similar license for the same business during the same or any next succeeding license year, it being intended hereby not to prevent the continuance of business, but only to prevent the further increase in the number of present licenses, yearly or six months' licenses, until an increase in population warrants the same, and to limit such increases according to a fixed ratio of population increase. When a licensee who has or holds, or who hereafter has or holds, a license for the sale of liquor at wholesale or retail, shall have made a bona fide sale of the business which he, or it, is so licensed to conduct, he, or it, may obtain a transfer of such license to the purchase of said business, provided the purchase shall comply with the laws of the State of Florida in reference to his qualifications as such purchaser, and when such license is so transferred the purchaser shall become vested with the right, and privilege of the renewal of said license, notwithstanding the provisions of the first two paragraphs of this Section, and shall likewise become possessed with all the rights and privileges accorded those now licensed to sell liquor at wholesale and retail within the City of Miami, Florida. Provided, however, that this Ordinance shall not prohibit the issuance of licenses for the sale of liquor to be consumed on or off the premises; in

'(a) Hotels with fifty (50) or more guest rooms, which hotel may contain places of business for the sale of liquor to be consumed on the premises and where such sales are conducted in an orderly manner, and where such sale of liquors is strictly incidental to the principal use as a hotel, and where there are no signs of any kind exhibited or displayed to the outside, denoting that intoxicating beverages are obtainable therein, and where the room for the sale of intoxicating liquors as conducted does not open upon any street or sidewalk.

'(b) In bona fide restaurants and dining rooms where the sale of liquor is entirely incidental to the main business of selling food, and where no sign or display is made to the outside indicating that alcoholic beverages are obtainable therein, and where such beverages are sold only to persons seated where food is habitually sold and consumed, and where such restaurant has a space of at least 4,000 square feet occupied by and exclusively devoted to the use of seating customers at tables, and where the chairs at tables, within said space, number at least 200.

'(c) The provisions of this Section shall not apply to the sale of beer and wine at retail.'

The matter came on for hearing before the Circuit Court, pursuant to order denying motion to dismiss, on motion of the respondent City for final decree on the petition or bill of complaint, the respondent therein declining to plead further. Whereupon Circuit Judge Williams filed his opinion and judgment as follows:

'After the repeal of the ill-fated prohibition amendment, article 19 was added to the Florida Constitution by a vote of the people of Florida at the general election in 1934. Section two (2) of article 19 confided to the legislature the power to enact laws to carry into effect the repeal amendment.

'Pursuant to the Constitutional power, the legislature enacted into law, in 1935, what is known as the State Beverage Act. This Act (chapters 561 and 562, F.S.A.) is a taxing as well as a regulatory statute intended to have uniform operation throughtout the State. Sproul, Tax Collector, v. State ex rel. Smith, Fla., 16 So.2d 109.

'This act is designed to cover the field of both regulation and taxation. Langston v. Lundsford, 122 Fla. 813, 165 So. 898.

'In 1939 the City Commission of Miami adopted ordinance number 2161, section three (3) of which purports to limit the number of liquor licenses according to population.

'It is elementary that municipalities have or can possess only such power as is conferred by expressed or implied provisions of law. Malone v. City of Quincy, 66 Fla. 52, 62 So. 922, Ann.Cas.1916D, 208.

'The State Beverage Act gives to municipalities the power to create zones wherein intoxicating liquor may not be sold. The Act also provides as follows:

"Nothing in the beverage...