Mayhue v. City of Plantation, Florida

• Citation: 375 F.2d 447
• Decision Date: 17 May 1967
• Docket Number: No. 22945.,22945.
• Parties: Carl L. MAYHUE, doing business as Mayhue's Super Liquor Store, Appellant, v. CITY OF PLANTATION, FLORIDA, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

375 F.2d 447 (1967)

Carl L. MAYHUE, doing business as Mayhue's Super Liquor Store, Appellant, v. CITY OF PLANTATION, FLORIDA, Appellee.

No. 22945.

United States Court of Appeals Fifth Circuit.

March 30, 1967.

Rehearing Denied May 17, 1967.

Richard E. Reckson, Eugene C. Heiman, Heiman & Heiman, Miami, Fla., for appellant.

James J. Linus, McCune, Hiaasen, Crum & Ferris, Fort Lauderdale, Fla., for appellee.

Before JONES, WISDOM and GOLDBERG, Circuit Judges.

GOLDBERG, Circuit Judge:

Appellant Carl L. Mayhue, d/b/a Mayhue's Super Liquor Store, possessing dual licenses from the State of Florida and the City of Plantation authorizing the sale of alcoholic beverages in packages for consumption off premises,¹ and operating a liquor package store within the corporate limits of appellee, filed this action under 28 U.S.C.A. §§ 1331, 2201, and 2202, requesting that an injunction be issued against the City of Plantation, Florida prohibiting the enforcement of Ordinance No. 257² and seeking to recover damages from the city resulting from enforcement of the Ordinance. After testimony of the first witness, who established monetary damages, the action below was dismissed, on the ground that as a matter of law Ordinance No. 257 did not create an arbitrary classification or discriminate against appellant and therefore did not violate the equal protection clause of the fourteenth amendment.³ We disagree.

I.

In passing upon the validity of a municipal ordinance, every effort is made to construe the ordinance as legal, in view of the principle that citizens through their local legislature are best suited to determine what regulatory measures are needed for their self-government. State ex rel. Harkow v. McCarthy, 1936, 126 Fla. 433, 171 So. 314; City of Wilton Manors v. Starling, Fla. App.1960, 121 So.2d 172. Such legislative declarations concerning public conditions and necessities are entitled to great respect, Block v. Hirsh, 256 U.S. 135, 154, 41 S.Ct. 458, 459, 65 L.Ed. 865, 870 (1920), but they are not sacrosanct. As the Supreme Court said in Chastleton Corp. v. Sinclair, 264 U.S. 543, 547, 44 S.Ct. 405, 406, 68 L.Ed. 841, 843, when faced with construing the validity of a rent control order.

"We repeat what was stated in Block v. Hirsch Hirsh * * * as to the respect due to a declaration of this kind by the legislature * * *. But * * * a court is not at liberty to shut its eyes to an obvious mistake, when the validity of the law depends upon the truth of what is declared."

In order to be upheld, the attempted classification or regulation must have been enacted within the powers of the municipality and must be reasonable, and impartial in operation. City of Wilton Manors v. Starling, supra. It must, moreover, accomplish the purpose for which it was created without undue discrimination. Morey v. Doud, 354 U.S. 457, 465, 77 S.Ct. 1344, 1350, 1 L.Ed.2d 1485, 1491 (1957).

The State of Florida has expressly reserved to its incorporated municipalities the power and right to regulate the hours and location of the sale of intoxicating liquors within the corporate limits of such municipality.⁴ This reservation, however, has been held not to include the right of a municipality to regulate the method of sale of alcoholic beverages. In Simpson v. Goldworm, 1952, 59 So.2d 511, the court was faced with a zoning ordinance which adversely affected the right of vendors holding consumption on premises licenses by regulating the precise method of sale within those premises. When declaring the Ordinance invalid, the court stressed the fact that a dealer holding a consumption on premises license is expressly authorized by statute to sell liquor by the drink or in containers for consumption on or off the premises and that a municipality through its police power cannot deprive such vendor of the right to sell alcoholic beverages in the manner prescribed by general law without special statutory authority to do so. The municipality could regulate the hours of opening and closing, but could not regulate the commodity to be sold when the premises were permitted to be open. Legislation with respect to the commodities to be sold is within the domain of the state and has not been reposed in the municipalities of Florida. Accord, City of Wilton Manors v. Starling, supra, where another attempt by a municipality was made to regulate the method of sale by restaurant bars which hold consumption on premises licenses and was declared invalid.

The sale of intoxicating liquor, moreover, is not a brigandage business. It has been historically and legislatively legitimized and is within the constitutional pale and protection. This Court, in Hornsby v. Allen, 5 Cir. 1964, 330 F.2d 55, 56, held that:

"The liquor business is like any other business in that the state is limited in its regulation of it by due process and equal protection requirements, although the peculiar nature of the business warrants the imposition of severe limitation on liquor traffic and tight restrictions on those persons engaged in it."

Appellee here contends that Ordinance 257 was a reasonable classification between on and off premise sales of alcoholic beverages and, therefore, was a valid hour regulation authorized pursuant to Fla.Stat.Ann. § 562.45 (1962). The Ordinance, in its disputed portion, purported to prevent Sunday package sales by prohibiting sale of liquor for consumption off premises between the hours of 4:00 A.M. and 2:00 P.M., while permitting bars, which hold consumption on premises licenses, to offer liquor for sale after 8:00 A.M. on Sundays.⁵ Since the effect of Ordinance No. 257 is to permit the public to purchase packaged goods from establishments possessing consumption on premises licenses after 8:00 A.M. on Sunday and to consume the packaged goods off the premises, while requiring appellant to remain closed until 2:00 P.M. on Sunday, Appellant claims that the Ordinance creates an arbitrary classification and thus deprives him of equal protection as guaranteed by the fourteenth amendment. The arbitrary discrimination involved in Ordinance No. 257 is, we believe, patently obvious.

In Morey v. Doud, supra, the Supreme Court considered the Illinois Community Currency Exchange Act, which excepted the American Express Company from the requirement that any firm selling or issuing money orders in the state must secure a license and submit to state regulation. The objection was raised that this exception results in a denial of the equal protection of the laws guaranteed by the fourteenth amendment to those who are subjected to the Act's requirements. In holding the Act invalid as applied to others because of this discriminatory exception, the Court considered at length the equal protection clause, began with the proposition that the clause does not go beyond the invidious discrimination, and set out the following rules for testing a discrimination:

"1. The equal protection clause of the Fourteenth Amendment does not take from the State the power to classify in the adoption of police laws, but admits of the exercise of a wide scope of discretion in that regard, and avoids what is done only when it is without any reasonable basis and therefore is purely arbitrary. 2. A classification having some reasonable basis does not offend against that clause merely because it is not made with mathematical nicety or because in practice it results in some inequality. 3. When the classification in such a law is called in question, if any state of facts reasonably can be conceived that would sustain it, the existence of that state of facts at the time the law was enacted must be assumed. 4. One who assails the classification in such a law must carry the burden of showing that it does not rest upon any reasonable basis, but is essentially arbitrary." Id., 354 U.S. at 463, 77 S.Ct. at 1349, 1 L.Ed.2d at 1490.

That the equal protection clause does not require that every state regulatory statute apply to all in similar businesses is a truism. Morey v. Doud, supra. It is equally true, however, that the statutory discrimination must be based on differences that are reasonably related to the purposes of the Act. In Smith v. Cahoon, 283 U.S. 553, 51 S.Ct. 582, 75 L.Ed. 1264 (1930), the Supreme Court held a state statute invalid which required motor vehicles operating on local highways as carriers for hire to furnish bonds or insurance policies for protection of the public against negligent injuries but which excepted vehicles carrying specified products. The Court emphasized that the statutory purpose could not reasonably support a distinction between those who carry exempt products like farm products and those who carry regulated products. "So far as the statute was designed to safeguard the public with respect to the use of the highways, we think the discrimination it makes * * * was wholly arbitrary, and constituted a violation of the appellant's constitutional right. `Such a classification is not based on anything having relation to the purpose for which it is made.'" Id., 283 U.S. at 567, 51 S.Ct. at 587, 75 L.Ed. at 1274.

The statutory purpose of Ordinance No. 257, involved in the case at bar, similarly cannot reasonably support a distinction between the hours during which a bar, restaurant, or the like can sell packaged goods for consumption off premises and the hours during which a package store can sell those very same goods. The court below took judicial notice of the fact that the legislative purpose was the encouragement of tourism,⁶ although there is some evidence that the motivating forces behind the Ordinance were numerous incidents of Sunday drunkenness and disorderly conduct in the vicinity of the package stores. In any event, it is difficult to see how tourism or law and order are affected adversely if the liquor package is bought in a consumption on premises establishment or in a package store only establishment. The goods could be consumed off premises in both cases....