Dade County v. Overstreet

• Decision Date: 11 July 1952
• Citation: 59 So.2d 862
• Parties: DADE COUNTY v. OVERSTREET et al.
• Court: Florida Supreme Court

Page 862

59 So.2d 862

DADE COUNTY v. OVERSTREET et al.

Supreme Court of Florida, en Banc.

July 11, 1952.

Hudson & Cason and Francis G. Rearick, Miami, for appellant.

Weintraub, Martin & Schwartz, Miami, for Earnest Overstreet, Dade County, Florida, Tax Collector.

Durant & Durant, Miami, for Marvin Rauzin et al.

CHAPMAN, Justice.

Dade County, on February 6, 1952, filed its bill of complaint in the Circuit Court of said county against Earnest Overstreet, as Tax Collector of Dade County, praying for injunctive relief. It was alleged that Marvin Rauzin, Shirley Rauzin, Joel Rauzin and Esther Rauzin had applied to the Tax Collector for the issuance of an occupational license as vendors of intoxicating liquor at retail at premises located at 7506 N.W. 17th Avenue, Dade County, Florida, the same being for the transfer to said location of a license for the operation of a package store. It was alleged that the proposed location, 7506 N.W. 17 th Avenue, Dade County, is outside the corporate limits of any municipality situated in Dade County. The proposed location, it was alleged, is within 2500 feet of a public school and two church buildings. The Board of County Commissioners of Dade County, by an appropriate resolution, zoned the areas of Dade County and thereby established the locations where whiskey could be sold outside of the several municipalities situated in said county.

It was further alleged that the defendant-appellee, as Tax Collector of Dade County, Would issue an occupational permit to the above named Rauzins for the sale of intoxicating liquors at 7506 N.W. 17th Avenue, contrary to the zoning resolution then in full force and effect as adopted by the Board of County Commissioners of Dade County, if not restrained by an appropriate order of said court. The prayer was for the issuance of a restraining order restraining would issue an occupational permit to the above named Rauzins, or to any or either of them, an occupational license to sell intoxicating liquors at 7506 N.W. 17th Avenue, a location situated in Dade County and controlled by the resolution adopted by the Board of County Commissioners of said county.

It appears by the record that the Circuit Court of Dade County, on February 6, 1952, issued a temporary restraining order against Earnest Overstreet, as Tax Collector of Dade County, which restrained the issuance to Marvin Rauzin, Shirley Rauzin, Joel Rauzin and Esther Rauzin, or any or either of them, of an occupational license for the sale at retail of intoxicating liquors at 7506 N.W. 17th Avenue, Dade County, Florida. An order was entered below permitting Marvin Rauzin, Shirley Rauzin, Joel Rauzin and Esther Rauzin to intervene as parties defendant in said cause.

The four Rauzins moved the Court to dismiss the bill of complaint upon the ground that it failed to state a claim upon which relief could be granted,--likewise, on the several grounds set out in their motion to dissolve the temporary restraining order as previously entered by the Chancellor. The grounds for dissolving the injunction are viz.: (1) the matter sought to be litigated in the cause had already been adjudicated by the Supreme Court of Florida contrary or adversely to the contentions of Dade County; (2) the judgment entered by the Supreme Court of Florida fixing the status of the location sought to be licensed has been formerly adjudicated by a court of competent jurisdiction and, as a matter of law, precludes a further prosecution by Dade County, Florida, of the case at bar; (3) made a part of the motion to dissolve was (a) the petition for an alternative writ of mandamus by the four Rauzins against Schott, as Beverage Director; (b) the issuance by the Supreme Court of Florida of an alternative writ of mandamus on January 28, 1952; (c) the return as filed by the Beverage Director to the alternative writ of mandamus as previously issued by this Court. The petition was subsequently amended and briefs of counsel filed in the cause were incorporated in the motion to dissolve. The Chancellor granted the motion to dissolve and dismissed the bill of complaint. Dade County appealied.

Section 561.44(2), F.S.A., grants to the Board of County Commissioners of the several counties of Florida, by an appropriate resolution, the power and authority to establish zones or areas in the territory lying without the limits of incorporated towns and cities wherein the location of a vendor's place of business licensed under the Act may be permitted to operate no license under Sub-section 3 to 8, inclusive, of Section 561.34 shall be granted to a vendor in the territory lying without the limits of incorporated cities or towns whose place of business is within 2500 feet of an established church or school (which distance shall be measured by following the shortest route of ordinary pedestrian travel along the public thoroughfare from the main entrance of said place of business to the main entrance of the church; and in the case of a school to the nearest point of the school ground in use as a part of the school facilities). Dade County had additional power or authority to zone areas applicable to the sale of intoxicating liquors situated outside the municipalities in Dade County. See Chapter 17833, Acts of 1937, Laws of Florida; Chapter 24161, Acts of 1947, Laws of Florida; Chapter 25184, Acts of 1949, Laws of Florida, F.S.A. § 561.441.

In the mandamus proceeding against Schott, as State Beverage Director, filed in this Court by Marvin Rauzin, Shirley Rauzin, Joel Rauzin and Esther Rauzin, is a certified copy of Zoning Resolution No. 4166 purported to have been adopted and passed by the Board of County Commissioners of Dade under date of February 13, 1951. Pertinent here are Sections A, B, C, D, E and F of the aforesaid resolution. The power or legal authority of the Board of County Commissioners to pass and adopt Resolution No. 4166 is not challenged on this record. It is...