Davidson v. City of Coral Gables, 59-111

• Citation: 119 So.2d 704
• Decision Date: 31 March 1960
• Docket Number: No. 59-111,59-111
• Parties: Cynthia E. DAVIDSON, doing business as Barcelona Gardens Restaurant, Appellant, v. CITY OF CORAL GABLES, Florida, a municipal corporation, Appellee.
• Court: Court of Appeal of Florida (US)

Page 704

119 So.2d 704

Cynthia E. DAVIDSON, doing business as Barcelona Gardens Restaurant, Appellant, v. CITY OF CORAL GABLES, Florida, a municipal corporation, Appellee.

No. 59-111.

District Court of Appeal of Florida, Third District.

March 31, 1960.

Rehearing Denied May 4, 1960.

Okell, Rutherford & Okell, Miami, for appellant.

Edward L. Semple, Miami, for appellee.

PER CURIAM.

The chancellor sustained a motion to dismiss appellant's second amended complaint whereby she sought a declaratory decree regarding her right to obtain a liquor license in Coral Gables.

The appellant Davidson owned a restaurant in the City of Coral Gables. The amended complaint reveals that there were accommodations to serve 200 or more patrons, that the restaurant contained more than 4,000 square feet of space, that it contained all necessary equipment to serve its patrons, and in other respects met the requirements of Section 561.20(2), Florida Statutes 1955, F.S.A. On July 3, 1957, appellant applied to the State Beverage Department for a license authorizing the sale of intoxicating beverages for consumption on the premises of her restaurant. On September 3, 1957, her application was denied by the Beverage Department on the ground that 'the location does not conform to zoning ordinance No. 720, amended by zoning ordinance No. 1014 of Coral Gables.' The complaint also alleges that during May of 1957, appellant had applied to the City of Coral Gables for a municipal license to operate the business but was advised that 'the quota' for liquor licenses in Coral Gables was filled at that time.

The type of license sought by the appellant as defined by City Ordinance No. 720, is described as a 'retail liquor store' which is a 'vendor of alcoholic beverages and intoxicating liquors at retail for consumption on the premises.' By City Ordinance No. 1014, Section 13(d) it is provided that the business of a retail liquor store 'shall not be conducted upon or from any premises in Coral Gables, except when the license therefor is issued to a hotel having one hundred or more guest rooms, and in such case, such license may be issued for any premises where operation of such hotel is permitted under the zoning ordinances of the City.'

The respondent city claims the authority to adopt the quoted ordinances under Section 7ee, Chapter 13972, Special Laws of Florida 1929, which is the City Charter. This section provides in part that the city shall have the power 'to prohibit and/or regulate by ordinance the sale, manufacture, transportation or possession of intoxicating liquors, wines and beers within the limits of the City.' In denying the appellant's application the city further relies upon Chapter 24446, Special Laws of Florida, 1947, which limits the number of places selling intoxicating beverages to 'one license for each three thousand persons in said city, according to the last state or federal census * * *.' The statute last cited further provides, however, 'that the City Commission of the City of Coral Gables may, without regard to the limitation fixed herein, issue such license to hotels having one hundred or more guest rooms, and licenses issued to such hotels shall not be taken into consideration in computing the number of licenses permissible on the basis of population * * *.'

The Chancellor sustained a motion to dismiss the amended complaint with prejudice by holding that the license requested by Appellant Davidson was properly denied under ordinances Nos. 720 and 1014, supra, which in the view of the Chancellor, were properly enacted pursuant to Chapter 13972, Special Laws of Florida 1929, as amended.

Appellant Davidson asks us to reverse the Chancellor because in her view Section 561.20(2, 4), Florida Statutes 1955, F.S.A., set up a special class of restaurant licenses which under the general Beverage Law then in effect could not be included within municipal population quota limitations, the City Charter provisions notwithstanding.

The appellee city contends that the Charter authorizes the municipality to regulate the sale of intoxicating beverages, that the 1947 Charter Act authorizes restriction of the number of licenses on the basis of population and that these local acts should supersede any general law on the subject when applied to the local situation.

We are immediately confronted by the decision of the Supreme Court of Florida in Abood v. City of Jacksonville, Fla.1955, 80 So.2d 443. It was there held that a 1949 special act applicable to the City of Jacksonville, for all practical purposes identical with the 1947 Coral Gables Act, supra, would not supersede the provisions of Section 561.20(2, 4), Florida Statutes 1953, F.S.A., which authorized so-called special licenses in restaurants of certain sizes. See Chapter 25359, Laws of 1949. In the Abood case the Florida Supreme Court took note of the fact that the Jacksonville Special Act (as does the 1947 Coral Gables Special Act) made provision for special hotel licenses but did not include the special type of restaurant license as an exception to the population quota. It was the view of the majority of the Supreme Court that under the then prevailing provisions of Section 561.20(2) and (4), Florida Statutes 1953, F.S.A., liquor licenses could properly be limited on a population quota basis within a municipality except as to those special types of licenses such as these restaurant licenses which under the general act were reserved for general state-wide regulation.

However, the decision in the Abood case is not applicable or controlling here. This is so because subsequent to the filing of the present suit, but before the entry of the final decree the legislature amended § 561.20(4), Fla.Stat., F.S.A., so that the exception under the state law to its limitations, which authorizes additional licenses to restaurants meeting certain requirements, will no longer prevail over limitation regulations of a city made pursuant to its charter which are in conflict therewith. That change in the state law, made during the pendency of this suit, activated or reactivated the limitations under the city's charter by which issuance of a restaurant liquor license on the basis applied for was interdicted.

At the time the Abood case was decided, and when the present application was made and the suit for declaratory decree was filed, subsection 4 of § 561.20 of the Beverage Law (Chapter 561, Fla.Stat., F.S.A.,), read as follows:

'The limitations herein prescribed shall be cumulative to and shall not affect or repeal any existing or future local or special act relating to the limitation by population of such licenses within any incorporated city or town or county that may be in conflict herewith.'

It was under this provision that the Florida Supreme Court in the Abood case, supra, held that the special restaurant type of license could not be included within municipal population quota limitations under local charter provisions. This provision of the law was amended by § 2 of Chapter 57-773, Laws of Florida, 1957, to read as follows:

'The limitations herein prescribed shall not affect or repeal any existing or future local or special act relating to the limitation by population and exceptions or exemptions from such limitation by population of such licenses within any incorporated city or town or county that may be in conflict herewith.'

The effective date of that amendment was January 1, 1958. This was expressly provided for by § 3 of Chapter 57-773 as amended and clarified by § 1 of Chapter 57-1991, Laws of Florida, Extra.Sess.1957, now appearing as subsection 4A of § 561.20, Fla.Stat., F.S.A., as follows:

'Provisions of subsections (2) and (4) as amended by ch. 57-773, shall take effect January 1, 1958, and shall apply only to those places of business licensed to operate after January 1, 1958, and shall in no manner repeal or nullify any license issued under provisions of law which are now operating or will operate prior to the effective date January 1, 1958, and all such places of business shall be exempt from the provisions of this law so long as they are in continuous operation.'

The record discloses that this suit was commenced on September 19, 1957. The final decree which dismissed the cause was entered on July 11, 1958. Thus the change in the law above referred to occurred during the pendency of the suit, and was in effect at the time of the rendition of the final decree. We will refer to § 561.20(4) as it read at the time of the commencement of the suit as the earlier law, and to the section as amended, effective January 1, 1958, as the present law.

The earlier law stated that the limitations (and that would include exceptions to limitations) which the Beverage Law prescribed were cumulative and did not affect existing population limitations, imposed by cities, which might be in conflict therewith. It is important to note that the earlier law did not state, as does the present law, that the limitations therein shall not affect or repeal 'exceptions or exemptions from such limitations by population' by cities under their charters which are in conflict therewith. Thus in the Abood case, a limitation exception provided in the state law, allowing licenses in restaurants meeting certain requirements, was held to prevail over a city's limitations which did not make such an exception.

The present law presents a different situation. First, the word cumulative, which had appeared in the earlier law, was left out, and, more important, where the earlier law had said that the state regulations would not affect or repeal city limitations imposed by population, this amendment added that a city's regulations as to exceptions and exemptions to population limitations were not thereby affected or repealed.

The determinative question in the case narrows down to one of whether the controlling law was that which prevailed when the suit was filed, or that which prevailed at the time of the...