Keating v. State ex rel. Ausebel

• Decision Date: 14 July 1964
• Docket Number: No. E-247,E-247
• Citation: 167 So.2d 46
• Parties: Richard B. KEATING, as Director of the State Beverage Department of the State of Florida, Appellant, v. STATE of Florida, ex rel. Bernard AUSEBEL, Appellee, Shell's City, Inc., Amicus Curiae.
• Court: Florida District Court of Appeals

Page 46

167 So.2d 46

Richard B. KEATING, as Director of the State Beverage Department of the State of Florida, Appellant, v. STATE of Florida, ex rel. Bernard AUSEBEL, Appellee Shell's City, Inc., Amicus Curiae.

No. E-247.

District Court of Appeal of Florida, First District.

July 14, 1964.

Rehearing Denied Sept. 22, 1964.

Young J. Simmons, Ocala, and Sam Pasco, State Beverage Department, Tallahassee, for appellant.

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

William G. O'Neill, Ocala, for amicus curiae.

RAWLS, Judge.

Richard B. Keating, in his capacity as Director of the State Beverage Department, appeals from a final judgment in mandamus directing him to recall and rescind all official acts pertaining to the reactivation of beverage license Number 433.

This license has been in litigation for a number of years. On February 7, 1962, Thomas Lee, Beverage Director, revoked with prejudice beverage license Number 433 issued to Gala Showplace and operated as Club 23 at 2300 Collins Avenue, Miami Beach, Florida. The order further provided that no license could be issued for that location for two years from October 1, 1962. Writ of Certiorari to review this order was denied by the District Court of Appeal, Third District, ¹ on July 19, 1962.

On October 22, 1962, Louis DeKovnick, president of the Empire Corporation (landlord of the premises affected) filed a petition with the Beverage Department for modification of the order alleging therein that he has a 99 year lease on the property; that the premises since the execution of that lease in 1945 have had a beverage license; that he has a large investment in the premises; and that if the revocation order were revoked, the petitioner would become the licensee and would personally operate the premises in a lawful manner. On December 6, 1962 this petition was denied. On December 7, 1962, a supplement to the petition for modification was filed, stating that due to a misunderstanding Mr. DeKovnick, acting for Empire Corporation (on November 17, 1962) leased the premises to Shell's Super Store, Inc. for use as a package store; that this lease provided the landlord would furnish the beverage license, and pursuant to said agreement Shell's had already expended the sum of $30,000 on alterations and equipment. The petition again urged modification and pledged that if the license were reinstated, this 'trouble spot' will become an 'asset to the community'.

On January 24, 1963, Beverage Director Lee amended the order of revocation by deleting therefrom the provision which prohibited the issuance of a license for those premises for the two year period. Lee again amended the order of revocation on January 31, 1963, by retroactively changing the revocation of license 433 to a suspension from September 6, 1962 through January 30, 1963 on the grounds 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'. This amendment provided that license 433 be sold to a bona fide purchaser and application for transfer be made within 30 days. It also authorized late renewal of this license.

On March 12, 1963 Relator Bernard Ausebel as a citizen of Florida, a resident of Miami Beach, and operator of a package store located one block from the premises in question, filed a petition for alternative writ of mandamus alleging the above facts, questioning the authority of the Beverage Director to change a license revocation to a suspension, and praying rescission of the Director's order dated February 15, 1963 approving the transfer of license 433 to Shell's City and the order dated January 31, 1963 changing the revocation to a suspension.

Alternative writ issued to which Beverage Director Keating filed responsive pleadings. Shell's City was recognized as amicus curiae. In due course final judgment in mandamus was rendered upon a finding that petitioner was a proper person to initiate these proceedings and that the Beverage Director was without authority to enter post-final orders modifying or nullifying a final revocation order.

Appellant presents the following two basic questions: 1. Does appellee have legal standing to challenge the action of the Director of the State Beverage Department concerning an alcoholic beverage license in which appellee has no interest? 2. Does the Director of the State Beverage Department have the legal power to set aside an order or revocation once entered?

We answer the first question in the affirmative and the second question in the negative, and thus affirm the trial court's action in holding that the subject license is not valid.

Appellant argues that Ausebel occupies the same position as Hi-Hat Liquors, Inc. in Baker v. State ex rel. Hi-Hat Liquors. ² There, Hi-Hat in its petition seeking a peremptory writ of mandamus against Baker, alleged that it was Baker's competitor and entitled to the unqualified enforcement of the beverage laws. ³ The Supreme Court in setting aside the Circuit Court's peremptory writ granting the relief sought, held that Hi-Hat could not challenge the legality of Baker's license. That decision was distinguished by the Circuit Judge in the instant cause by the following observations:

'* * * The respondent and amici curiae contend that the relator Bernard Ausebel does not have such interest and urge in support of this position. Baker vs. State ex rel. High Hat Liquors, 159 Fla. 286, 31 So.2d 275; Turner vs. City of Miami, 160 Fla. 317, 34 So.2d 551; and Donovan vs. Schott [Fla.], 58 So.2d 847. Baker was a mandamus proceeding but Turner and Donovan were suits in equity. In Baker the facts are somewhat similar to that at bar but which one significant difference. In Baker it was not alleged or otherwise shown that the relator was a citizen and resident of the community in which the places of business of the licensees were located. Indeed it could not be so alleged because relator was a corporation. Therefore, there was not involved in that case a circumstance of the relator being a resident of the community or the municipality involved such as we have in the case at bar. It was recognized by dicta in that case that a petitioner might have appeared in the character of a citizen having no legal or special interest in the result other than having the law executed and the duty in question enforced.'

Unlike the Circuit Judge, we have encountered difficulty in distinguishing the facts in the Baker case and those appearing here. Petitioner's paragraph 2 in his initial pleading is as follows:

'2. That the Relator is a citizen of the State of Florida, and a resident of the City of Miami Beach, County of Dade, State of Florida, and operates Leo Adler's Wofford Package Store in the City of Miami Beach, a duly licensed place of business at 2403 Collins Avenue, Miami Beach, Dade County, Florida, by virtue of State Alcoholic Beverage License No. 1510, where alcoholic beverages are sold in sealed containers for consumption off the premises where sold; and that as a result of the unlawful action of the State Beverage Director in approving a transfer of State Alcoholic Beverage License No. 433 to SHELL'S CITY, INC., on February 15, 1963, previously issued to Gala Show Place, Inc., trading as Club 23, 2300 Collins Avenue, Miami Beach, Dade County, Florida, and previously revoked by Respondent, the lawfully operated business of the Relator, one (1) city block away from the unlawfully operated business approved by Respondent, is in jeopardy and suffering an economic loss of approximately fifty per cent (50%) of its normal trade because of the unlawful act or Respondent in reinstating a null and void license.'

Thus, Ausebel, like Hi-Hat, alleges that he was a competitor and entitled to the unqualified enforcement of the laws of the State of Florida, and the natural and practical object being sought by such allegation was the elimination of Shell's City, Inc. as a competitor. The gist of the Supreme Court's decision in the Baker case is found in the following statements:

'As petitioner, Hi-Hat might have appeared (1) in the character of a citizen having no legal or special interest in the result other than having the law executed and the duty in question enforced, of (2) in that of a person enforcing a special interest or private right, in which event right to relief must clearly appear. State [ex rel. Davis] v. Atlantic Coast Line R. Co., 95 Fla. 14, 116 So. 48; State v. Crawford, 28 Fla. 441, 10 So. 118, 14 L.R.A. 253; Florida Central [& P.] R. Co. v. State, 31 Fla. 482, 13 So. 103, 20 L.R.A. 419, 34 Am.St.Rep. 30. Its declared object was to eliminate Baker as a competitor and, in so doing, place the action in the second category.'

and

'Neither licensee had anything more than a permit to engage in the liquor business. Each had the same rights and privileges. The law did not restrict competition between them, nor were they allotted any exclusive territorial areas. The profits or commercial advantages which He-Hat might gain in the elimination of Baker's competition are too...