Hunter v. Solomon

• Decision Date: 16 November 1954
• Citation: 75 So.2d 803
• Parties: J. R. HUNTER, Jr., as Director of the Florida State Beverage Department, Appellant, v. Frank E. SOLOMON, Appellee.
• Court: Florida Supreme Court

Page 803

75 So.2d 803

J. R. HUNTER, Jr., as Director of the Florida State Beverage Department, Appellant, v. Frank E. SOLOMON, Appellee.

Supreme Court of Florida, Division A.

Nov. 16, 1954.

Richard W. Ervin, Atty. Gen., and John C. Reed, Asst. Atty. Gen., for appellant.

Youge, Whiteside & Prunty, Miami, for appellee.

MATHEWS, Justice.

This is an appeal from an order from an amended peremptory writ of mandamus.

The appellee presented to one Hefner, a Supervisor of the State Beverage Department, in charge of applications in Miami, Florida, an application for transfers of a certain beverage license, the same being not only for the transfer of ownership of said license from the appellee to himself and to Lauren W. Campbell, but also for the transfer of location from 151 S.E. Second Street, Miami, to 680 N.W. 71st Street, Miami. At the time the appellee made demand upom the Supervisor to issue forthwith the transfers, as applied for, the Supervisor refused. One day later, December 17, 1953, the appellee filed in the Circuit Court petition for writ of mandamus seeking to compel the transfers and the Circuit Court issued an alternative writ directing the appellant, as Director of the Florida State Beverage Department, to forthwith issue the transfers and to issue proper license therefor or show cause why he does not transfer and issue said beverage license as ordered. The petition for the writ of mandamus showed that the demand for transfer was from the petitioner who was the sole owner to the petitioner and one Lauren W. Campbell.

The appellant filed a motion to quash and dismiss the petition and the alternative writ, which was denied. Thereafter, a peremptory writ was issued December 21, 1953. A petition for rehearing was filed and denied on the 23rd of December, 1953, and on the same day an amended peremptory writ of mandamus was issued.

Without any amendment of the petition for the alternative writ or any amendment of the alternative writ, the Circuit Court made and entered a peremptory writ in the following language:

'An Alternative Writ of Mandamus having been heretofore issued upon petition of Frank E. Solomon, and the Court having considered the same, having heard argument of counsel, and being otherwise fully advised in the premises:

'It Is, Therefore, Ordered and Adjudged that the Respondent, J. R. Hunter, as Director of the Florida State Beverage Commission, do forthwith issue and transfer that certain 4 COP State of Florida Beverage License bearing No. 1633, presently located and situated in Miami, Dade County, Florida, at 151 S.E. 2nd Street, to 680 N.W. 71st Street, Miami, Florida, and issue the proper license therefor.'

Without any amendment of the petition for the alternative writ or of the alternative writ itself, or any amendment of any kind, the Court made and entered an amended peremptory writ in the following language:

'Frank E. Solomon, having filed his Petition for a Writ of Mandamus, showing therein prima facie that he is entitled to such a writ, it is therefore ordered that J. R. Hunter, as Director of the Florida State Beverage Commission, a duly recognized agency of the State of Florida, do forthwith approve the transfer of that certain 4 C. O. P. State of Florida beverage license bearing No. 1633, and presently located and situated in Miami, Dade County, Florida at 151 S.E. 2 nd Street, to 680 N.W. 71st Street, Miami, Florida, and approve the issuance of the proper license therefor, and the Tax Collector of Dade County, Florida is hereby directed to issue said license forthwith, according to law.'

It should be noted that the petition asked for a transfer to Frank Solomon and Lauren W. Campbell and the alternative writ makes no mention of Lauren W. Campbell. Although, the petition, the alternative writ, and the original peremptory writ made no mention of the Tax Collector of Dade County, Florida, the amended peremptory writ orders the petitioner to approve the issuance of a proper license for the changed location and, presumably in the name of Solomon and Campbell, and the Tax Collector of Dade County is directed to 'issue said license forthwith, according to law'. The Tax Collector was not a party to this suit and the record discloses no amendment making him a party.

It is urged by the appellant that the petition and the alternative writ based thereon orders him to perform an act not within his powers but exclusively within the power of the Tax Collector of the County.

Insofar as the approval of an application and the issuance of a license, F.S. Section 561.19, F.S.A. appears to be controlling. Said section reads as follows:

'License issuance upon approval of director

'Upon receipt by the director of such application, he shall approve or disapprove said application. If he shall approve the same, he shall endorse his approval on said application and forward the same to the tax collector. The tax collector shall notify the applicant of such approval and the applicant shall then be entitled to the license applied for upon the payment to the tax collector of the license tax hereinafter provided * * *. If the director shall not be satisfied that the applicant possesses the qualifications required hereunder, the director shall give the applicant * * * a fair hearing as to his qualifications. If after such hearing the director shall...