Keating v. State ex rel. Ausebel, 33771

• Citation: 173 So.2d 673
• Decision Date: 31 March 1965
• Docket Number: No. 33771,33771
• Parties: Richard B. KEATING, as Director of the State Beverage Department of the State of Florida, Petitioner, v. STATE of Florida ex rel. Bernard AUSEBEL, Respondent.
• Court: Florida Supreme Court

Page 673

173 So.2d 673

Richard B. KEATING, as Director of the State Beverage Department of the State of Florida, Petitioner, v. STATE of Florida ex rel. Bernard AUSEBEL, Respondent.

No. 33771.

Supreme Court of Florida.

March 31, 1965.

Rehearing Denied April 26, 1965.

Young J. Simmons, Ocala, for petitioner.

David U. Tumin, of Rothstein & Tumin, Miami, for respondent.

William G. O'Neill, Ocala, for amicus curiae, Shell's City, Inc.

ERVIN, Justice.

We are petitioned for a writ of certiorari to review a decision of the District Court of Appeal, First District, in this case, reported in Keating v. State of Florida ex rel. Ausebel, 167 So.2d 46 (Fla.App.).

It appears that in February of 1962, Thomas Lee, petitioner's predecessor as Beverage Director, revoked with prejudice beverage license No. 433 issued to Gala Showplace, Inc., and operated as Club 23 at 2300 Collins Avenue in Miami Beach. The order, in addition to revoking the license, further provided that no license could be issued for the location, 2300 Collins Avenue, for two years from October 1, 1962. Attempts to have the revocation order reviewed in the District Court of Appeal, Third District, were unavailing. Gala Showplace, Inc. v. State Beverage Department, 143 So.2d 578 (Fla.App.1962).

Beginning in October of 1962, and continuing through the end of the year, representatives of Empire Corporation, the landlord of the premises at 2300 Collins Avenue, sought by petition ond supplementary correspondence to persuade the Beverage Department to alter the revocation order and quarantine placed on the location. As grounds for the request, the landlord indicated that it held a 99-year lease on the premises, that the premises had been operated under a beverage license for 17 years and represented a substantial investment on the landlord's part. Further, the landlord indicated that due to a misunderstanding as to the terms of the Department's order, it had leased the premises to Shell's Super Stores, Inc., for use as a package store, and had agreed to furnish the requisite beverage license. The landlord alleged that lessee Shell's had already expended $30,000 in renovation of the premises and pledged that should the license be reinstated the former 'trouble spot' would become a community asset.

In January, 1963, by successive orders, the then Beverage Director granted the landlord's request. The initial order, entered January 24, 1963, amended the original revocation order so as to remove the two year quarantine on the premises. Subsequently, upon a finding that 'the revocation would work an undue hardship on the landlord since the city zoning ordinances prohibit the issuance of a new license for this location,' the Beverage Director, by order of January 31, 1963, amended the original revocation to change the revocation to a suspension terminating on January 30, 1963. This amendment provided that the license be sold to a bona fide purchaser and that application for transfer be made within 30 days. The conditions were met and, on February 15, 1963, transfer of the license to Shell's City, Inc., was approved.

The petitioner, the incumbent State Beverage Director, contends the respondent had no legal standing to challenge in his mandamus action below the order of petitioner's predecessor, the then State Beverage Director amending a revocation of a beverage license by changing it to a suspension for a period of time. Petitioner contends the District Court of Appeal in agreeing that respondent had the requisite standing to maintain his action conflicted with: Baker v. State ex rel. Hi-Hat Liquors, Inc., 159 Fla. 286, 31 So.2d 275; Turner v. City of Miami, 160 Fla. 317, 34 So.2d 551 and Donovan v. Schott, Fla., 58 So.2d 847.

It is necessary to refer only to the Hi-Hat Hat Liquor, Inc., case, since a comparison of it with the instant case discloses conflict involving our certiorari jurisdiction.

The gist of the Hi-Hat Liquor, Inc., case is that a citizen with no legal or special interest in the result other than a public interest in having the law executed and the duty in question enforced, has standing to proceed against the State Beverage Director. Also, this case holds a person might have standing to maintain such an action enforcing a special interest or private right but in such event his right to relief must clearly appear. However, the court held Hi-Hat Liquors, Inc., was a beverage licensee competitor of Baker, its adversary in the litigation, and as such licensee had no special right or private interest sufficient to entitle it to maintain the action, since neither Hi-Hat Liquors, Inc., nor Baker, both being beverage licensees, had anything more than a permit to engage in the liquor business; and the law did not restrict competition between them and the profits or commercial advantages the Hi-Hat Liquors, Inc., might gain in the elimination of Baker's competition was too elusive and uncertain to sustain the action.

In this case respondent alleged in his mandamus action that he is a citizen of Miami Beach, Dade County, Florida; that he is the holder of a package store beverage license and operates his store in Miami Beach one block from his competitor, Shell's City, Inc., the beneficiary of the action of the Beverage Director in modifying the revocation of the beverage license covering the package store operated by Shell's City, Inc., and that respondent's package store business is in jeopardy and is suffering an economic loss of approximately 50 per cent of its normal trade because of the action of the Beverage Director in reinstating a null and void license for the benefit of his competitor. The Circuit Court, with the District Court of Appeal affirming, held the Director had lost jurisdiction to reinstate the license. See 167 So.2d 46 (Fla.App.).

These allegations subjected to the tests prescribed in Baker v. State ex rel. Hi-Hat Liquors, Inc., supra, disclose respondent has no standing the maintain his action when viewed only in the context of that case. Although he is a citizen of the city, county and state where the alleged duty of the Beverage Director is sought to be enforced, his special interest or private right is no greater than was that of Hi-Hat Liquor, Inc. His special interest is only that of a beverage licensee operating a liquor business in competition with Shell's City, Inc.

Having determined a conflict exists conferring certiorari jurisdiction upon us, we address ourselves to the merits.

We are convinced that we should recede from Baker v. State ex rel. Hi-Hat Liquors, Inc., supra, insofar as it holds that a licensee competitor has no standing to maintain an action of the kind here involved merely because as a business competitor the profits or commercial advantages which he might gain in eliminating his competition 'are too elusive and uncertain to sustain the action.'

This Court has approved actions brought by plaintiffs seeking to nullify or restrain acts of state officers favoring their competitors. In such cases the interest of the plaintiffs arose primarily out of a competitive situation. For example, in Volusia Jai-Alai, Inc. v. McKay, 90 So.2d 334, one of the plaintiffs, the Volusia County Kennel Club, sought to set aside a permit issued by the Racing Commission to the defendant, Volusia Jai-Alai, and enjoin any action under the permit, any construction of a fronton and any application for dates to operate. See also State ex rel. West Flagler Amusement Co. v. Rose, 122 Fla. 227, 165 So. 60.

Further considering the merits, we have reached the conclusion the action of the State Beverage Director under challenge is not illegal.

The Circuit Court and the District Court of Appeal appear not to have considered the impact of F.S. § 561.58, F.S.A., which has special application where a license is revoked covering a landlord's premises. Said section reads as follows:

'Issuance of license for a prior license revoked.--When a license is revoked by the director under the authority granted in § 561.29, it shall be within the discretion of the director to prohibit or permit a license provided for in §§ 561.34 and 561.35 to be issued for the location of the place of business formerly operated under such revoked license; provided the maximum period of time that any such license shall be prohibited by the director from any such place of business shall be two years from the first day of the succeeding October following such revocation.'

Where a beverage license is revoked by the Director pursuant to F.S. § 561.29, F.S.A., covering a landlord's premises, F.S. § 561.58, F.S.A., provides

'* * * it shall be within the discretion of the director to prohibit or permit a license * * * to be issued for the location of the place of business formerly operated under such revoked license; * * *'

but the prohibition of a license for the location may only extend for a maximum of two years from October first following the revocation.

It appears to us that in our consideration of F.S. § 561.58, F.S.A., we should answer two questions:

(1) Does F.S. § 561.58, F.S.A., violate the constitutional guarantees of due process and equal protection when it permits the Beverage Department to issue a so-called padlocking order without notice to the landlord, and without affording the landlord an opportunity to be heard?

(2) Does a landlord have a protectable constitutional right to have his premises used for the sale and consumption of alcoholic beverages?

Establishments for the sale of intoxicating beverages may not to some be a mdost desirable business; but

'Even though a liquor license may have the character of a mere privilege insofar as governmental regulation of the alcoholic beverage industry is concerned, it must be recognized that in this state, as well as in many other states, due to the limitations respecting the number and location of liquor establishments and the conditions under which the license is issued, a liquor license has come to...