Patch Enterprises, Inc. v. McCall

• Decision Date: 06 March 1978
• Docket Number: No. 78-2-Civ-Oc.,78-2-Civ-Oc.
• Citation: 447 F. Supp. 1075
• Parties: PATCH ENTERPRISES, INC., Faye P. Johnson and David L. Johnson, Plaintiffs, v. Malcolm McCALL, as Sheriff of Lake County, Florida and Gordon G. Oldham, Jr., as State Attorney for the Fifth Judicial Circuit of Florida, Defendants.
• Court: U.S. District Court — Middle District of Florida

447 F. Supp. 1075

PATCH ENTERPRISES, INC., Faye P. Johnson and David L. Johnson, Plaintiffs, v. Malcolm McCALL, as Sheriff of Lake County, Florida and Gordon G. Oldham, Jr., as State Attorney for the Fifth Judicial Circuit of Florida, Defendants.

No. 78-2-Civ-Oc.

United States District Court, M. D. Florida, Ocala Division.

March 6, 1978.

COPYRIGHT MATERIAL OMITTED

Robert E. Austin, Jr., Austin & Burleigh, Professional Ass'n, Leesburg, Fla., for plaintiffs.

Horace Danforth Robuck, Jr., Tavares, Fla., Neal D. Huebsch, Eustis, Fla., for defendants.

OPINION

CHARLES R. SCOTT, District Judge.

I. Jurisdiction

Plaintiffs invoke the Court's jurisdiction under 28 U.S.C. § 1343(3), for the redress of allegedly deprived constitutional rights. Plaintiffs seek injunctive relief for their claims presented under 42 U.S.C. § 1983. Additionally, the Courts' pendent jurisdiction is invoked over claims arising from the "common nucleus of operative facts," UMW v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218, 228 (1966), with which this case is involved. Those pendent claims are asserted under the rights guaranteed by the Constitution of the State of Florida.

II. Status of Case

This case was commenced on January 11, 1978, at which time the Court issued a temporary restraining order against defendants. By consent of the parties, that temporary restraining order was extended until March 6, 1978, or until the Court's final judgment in this case, whichever occurred first. Pursuant to Fed.R.Civ.P. 65(a)(2), hearing on plaintiffs' preliminary injunction motion was consolidated with a final hearing on the merits; and this case was tried before the Court, without a jury, on January 30, 1978. After post-trial briefing, final arguments were heard on February 24, 1978.

III. Parties

Plaintiff, Patch Enterprises, Inc. ("Patch") is a close corporation engaged in operating a bottle club known as "The Odyssey", located in an unincorporated area of Lake County, Florida, between the cities of Leesburg and Tavares on Highway U.S. 441. Plaintiff, Faye P. Johnson, is the sole shareholder and president of Patch, as well as one of its employees at The Odyssey. Plaintiff, David L. Johnson, is the husband of plaintiff, Faye P. Johnson, and is also an employee of Patch at The Odyssey.

Defendant, Malcolm McCall is the Sheriff of Lake County, charged with enforcing the laws of the State of Florida and of Lake County. Defendant, Gordon G. Oldham, Jr., Esquire, is State Attorney for the Fifth Judicial Circuit of the State of Florida, located in Lake County, and is charged with prosecuting alleged violations of the laws of the State of Florida and of Lake County.

IV. Facts

Since August 1977, plaintiffs have operated a bottle club in unincorporated Lake County. Previously, they had operated in the City of Leesburg. After enactment of a municipal ordinance prohibiting bottle clubs, plaintiffs moved The Odyssey to its present location. The Odyssey is apparently the only bottle club in Lake County. It is an after-hours nightclub where persons who bring their own alcoholic beverages consume them on the premises; however, alcoholic beverages are not sold on the premises, since plaintiffs do not have a license to sell alcoholic beverages.

At the bottle club, records are played by a disc jockey for background entertainment and for dancing. Non-alcoholic beverages, pizza, sandwiches, and pre-packaged food are sold. A game room where patrons may play foosball, pinball and pool is available. Patrons of The Odyssey bring their own alcoholic beverages with them. An admission or cover charge is required at the door: $2.00 per person bringing a bottle of alcoholic beverage; $3.00 per person without any alcoholic beverage; and $3.50 per person for anyone bringing a six-pack of beer. More than eighty percent of The Odyssey's business revenues are derived from operation between 2:00 o'clock A.M. and 6:00 o'clock A.M.

The Odyssey is located in an area of the county that is zoned for commercial use. Highway U.S. 441 is the most direct route between Ocala and Orlando. Along that highway are other businesses and residences. Immediately east of The Odyssey are a vacant lot and another county road, across from which is a mobile home dealership. To the west of The Odyssey is a county road, directly across from which is a vacant lot and an automobile dealership. Still farther west is a package liquor store. A farm equipment dealer and a beauty shop are also in the immediate area. To the northwest of The Odyssey are located residences across the county road.

After The Odyssey opened at its present location, residents living near it complained to the Lake County Board of County Commissioners about noise and disturbances caused by The Odyssey's patrons. At successive hearings on August 16, November 1, November 8, and December 6, 1977, the Lake County Board of County Commissioners heard complaints from residents near The Odyssey and discussed the problems raised by those complaints. On January 3, 1978, the Lake County Board of County Commissioners passed an ordinance prohibiting establishments which deal in alcoholic beverages from permitting the consumption of alcoholic beverages on their premises between the hours of 2:00 o'clock A.M. and 7:00 o'clock A.M., seven days a week. The ordinance defines `establishments which deal in alcoholic beverages' as well as `alcoholic beverage'. After being filed with the Secretary of State on January 6, 1978, the county ordinance became effective at once. Between January 6 and January 11, 1978, The Odyssey was closed in compliance with the ordinance. Since the issuance of the temporary restraining order, and the consensual extension of that restraining order, The Odyssey has been able to operate business as usual.

V. Issues

The first issue raised in this case is whether the ordinance unconstitutionally denies the equal protection of the laws to plaintiffs by including them in a prohibited classification that is unreasonably and arbitrarily discriminated against. The second issue presented is whether the ordinance's proscription is so unjustifiable and unreasonable as to constitute a denial of plaintiffs' due process rights. The third issue is whether the ordinance amounts to an impermissible exercise of the county's police power under the Florida Constitution. The fourth issue is whether the ordinance is an improper attempt to curb legislatively a private nuisance that would be subject only to judicial injunction.

VI. Law

1. Equal Protection

Any form of state legislation creating discriminatory classifications (1) that concern fundamental constitutional rights, or (2) whose defining criteria are inherently suspect, or (3) that are unnecessarily restrictive and unreasonably related to the legislation's purported purpose, is subject to challenge and examination as a denial of equal protection of the laws. Craig v. Boren, 429 U.S. 190, 210 and n. *, 97 S.Ct. 451, 463, 50 L.Ed.2d 397, 415 and n. * (1977) (Powell, J., concurring). Every decision, of course, discriminates. To choose one thing necessarily excludes and rejects everything else that the selected thing is not. The standard of the equal protection clause is whether a particular legislative decision unreasonably discriminates either in its definition of a class, in its treatment of fundamental rights, or in its choice of means to accomplish an intended objective.

The county ordinance in this case does not define the class of persons whom it regulates by means of inherently suspect criteria. Neither does the ordinance affect any fundamental constitutional right. The ordinance defines and regulates a class of establishments dealing in alcoholic beverages. The members of that class are establishments and businesses licensed to sell alcoholic beverages or permitting the consumption of alcoholic beverages on their premises. Such establishments expressly include bottle clubs, hotels, motels, restaurants, and night clubs. The class is forbidden to "permit the consumption of alcoholic beverages" on the premises between 2:00 o'clock A.M. and 7:00 o'clock A.M. daily. Hotels, motels, and restaurants are expressly allowed to remain open for business during those hours, but the sale of consumption of alcoholic beverages is prohibited. There is nothing inherently suspect about regulating businesses that deal in alcoholic beverages. It is an intrinsic power of state governments and their subdivisions, fortified by the federal Constitution's Twenty-first Amendment, to regulate the sale, distribution, importation, and use of alcoholic intoxicants, so long as that regulation does not irrationally and invidiously discriminate. California v. LaRue, 409 U.S. 109, 114, 93 S.Ct. 390, 395, 34 L.Ed.2d 342, 349-50 (1972); cf. Craig v. Boren, 429 U.S. at 204-05, 97 S.Ct. at 460-61, 50 L.Ed.2d at 411, 413-14, and 429 U.S. at 215, 97 S.Ct. at 466, 50 L.Ed.2d at 417-18 (Stewart, J., concurring in the judgment). There is, furthermore, no fundamental constitutional right of persons to sell or consume alcoholic beverages.

Hence, the question presented by plaintiffs' equal protection challenge to the ordinance is whether its proscriptive and regulatory classification (1) has a legitimate governmental objective and (2) is a reasonable means to achieve that goal. Zablocki v. Redhail, ___ U.S. ___, ___, ___, 98 S.Ct. 673, 688, 689, 54 L.Ed.2d 618, 639, 640 (January 18, 1978) (Powell, J., concurring in the judgment); Craig v. Boren, 429 U.S. at 211, 97 S.Ct. at 464, 50 L.Ed.2d at 415 (Powell, J., concurring); Weber v. Aetna Casualty and Surety Co., 406 U.S. 164, 172, 92 S.Ct. 1400, 1405, 31 L.Ed.2d 768, 777 (1972); Levy v. Louisiana, 391 U.S. 68, 71, 88 S.Ct. 1509, 1511, 20 L.Ed.2d 436, 439 (1968). The legitimate interests which defendants allege are the objective of the ordinance are generally the safety and welfare of the county's residents. It was the County Commissioners' decision that...