Effie, Inc. v. City of Ocala
| Decision Date | 29 September 1983 |
| Docket Number | No. 82-409,82-409 |
| Citation | 438 So.2d 506 |
| Parties | EFFIE, INC., Appellant, v. CITY OF OCALA, Appellee. |
| Court | Florida District Court of Appeals |
Dock Blanchard of Tucker, Brannen, Blanchard & Stillwell, P.A., Ocala, for appellant.
Seymour H. Rowland, Jr., Ocala, for appellee.
This appeal is from a judgment of the trial court holding an ordinance of the City of Ocala to be a constitutional exercise of the police power of the City and denying a location permit to appellant Effie, Incorporated (Effie) for the sale and consumption of alcoholic beverages on premises owned by Effie. We reverse.
Effie owns certain property in the City of Ocala, zoned B-2 under the city's zoning ordinance. This zoning district permits, among other businesses, the use of property for the sale and consumption on the premises of alcoholic beverages. The Ocala Code of Ordinances (the Code) imposes additional restrictions on the sale of alcoholic beverages by requiring location permits, even for property zoned for this use, and the procedure to obtain a permit varies according to the nature of the requested use. Effie applied for, and was administratively granted, a location permit to use this property for the sale of package goods for consumption off the premises. At the same time, Effie requested a permit which would also allow it to sell alcoholic beverages for consumption on the subject premises, and it is only this latter permit that is involved here.
The Code provides that before a permit will be granted for on the premises sale and consumption of alcoholic beverages, an application must be filed, the premises must be posted with an appropriate notice and written notice must be given to adjoining landowners that a public hearing will be had on the application, at which time all persons interested in either supporting or opposing the application may appear and be heard by the city council. Section 4-4(e) of the Code then provides:
... In consideration of the application, the council shall take into account the proximity of the location to schools, churches, public recreation areas, public buildings and areas of public assembly, the land use character of the area; types of streets serving the area; type of traffic using the streets; the proximity of said location being considered to other established places of business operating under permits D, E, F, or G, and all other pertinent factors that may arise in connection with the particular application and location being considered.
The record reflects that prior to the public hearing on Effie's application, an administrative report was submitted to the city council by the city's Planning Director. This report indicated, in response to a solicitation for comments on the application, that the Building, Engineering and Fire Departments had responded with "no comment" and the Police Department had reported "no problem" with the request. The report went on to indicate that no churches, schools, public recreation areas, public buildings or areas of public assembly were within any prohibited distances; that the character of the area is intensive commercial use, with a mobile home park directly to the south of the property. The report continued that the subject property was on Silver Springs Boulevard, a major arterial road with a traffic count of 25,000 vehicles per day, and that the closest establishments with similar licenses were located 2300 feet and 2500 feet distant, respectively. Following the public hearing at which the council heard objections from residents of the mobile home park to the sale of alcohol on Effie's property, the council denied the application.
Effie filed an action below seeking a determination that the applicable provisions of the Code were unconstitutional on their face, or were unconstitutionally applied. In this appeal from the trial court's ruling that the code provisions are valid, Effie contends that the challenged provisions are invalid because they fail to provide any standards or guidelines upon which the city council may act, thereby permitting the exercise of unbridled discretion by the council, thus denying Effie equal protection of the law. The trial court acted upon stipulated facts, 1 and found the ordinance to be a valid enactment of the exercise of the police power of the city. It further found that the ordinance supplied sufficient criteria upon which the city could exercise its discretionary powers, and that the city council was not required to confine itself to the enumerated items of the ordinance; that the action of the council was neither arbitrary nor capricious and therefore did not deny Effie either due process or equal protection of the law. The ordinance in question appears to have been enacted following the decision in the case of ABC Liquors, Inc. v. City of Ocala, 366 So.2d 146 (Fla. 1st DCA 1979), cert. denied, 376 So.2d 69 (Fla.1979). In that case, it appeared that an applicant, holding a proper state license, and desiring to sell liquor for on-premises consumption on property properly zoned for that purpose, was nevertheless required to obtain consent of the city council through the enactment of an approving ordinance. No guidelines existed to guide the city council in determining which applicants would or would not be approved. In striking down the ordinance, the court held:
The dispensation of alcoholic beverages is a highly regulated industry. Nevertheless the constitutional guaranty of equality before the law assures that every citizen, whether natural or corporate, be treated equally. To assure that right, regulations must be standard and criteria reasonably certain. An applicant for approval of a location must be in a position to determine the requirements and must be afforded an opportunity to comply with them. The requirements must be of uniform application. Once the requirements are met the governing body may not refuse the application. Any standards, criteria or requirements which are subject to whimsical or capricious application or unbridled discretion will not meet the test of constitutionality. (Emphasis supplied)
The granting or withholding of a permit to engage in a legitimate business...
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