Permenter v. Younan

• Decision Date: 01 July 1947
• Citation: 31 So.2d 387,159 Fla. 226
• Parties: PERMENTER, Municipal Inspector, et al. v. YOUNAN et al.
• Court: Florida Supreme Court

31 So.2d 387

159 Fla. 226

PERMENTER, Municipal Inspector, et al. v. YOUNAN et al.

Florida Supreme Court

July 1, 1947

Rehearing Denied July 29, 1947.

Appeal from Circuit Court, Duval County; Bryan Simpson judge.

William M Madison and O. O. McCollum, Jr., both of Jacksonville, for appellants.

Charles J Regero and Clifford T. Inglis, both of Jacksonville, for appellees.

KANNER, Associate Justice.

The Municipal Inspector refused to renew city licenses to appellees for the sale of beer and wine for the license year commencing October 1, 1946. Appellees instituted mandamus action. Upon motion notwithstanding the answer, order for peremptory writ was entered to compel such renewals. The appeal is from such order.

The validity of provisions contained in Section 3 of Ordinance AA-128 and Section 5 of Ordinance AA-249 was attacked in substance, as granting to the Municipal Inspector the power of arbitrary discrimination, unlawful delegation of authority without limitation, and permitting the arbitrary withdrawal of license privilege of qualified vendors for the sale of beer and wine without due process of law. Only the involved part of Section 5 of Ordinance AA-249 is quoted, as it would be repetitious to also set out the affected part of Section 3 of Ordinance AA-128:

'That the Municipal Inspector may refuse the issuance or transfer of any licenses provided for in this Chapter when, in his judgment, the issuance of transfer of the same would be contrary to public policy or the welfare of the community. In all cases of such refusal by the Municipal Inspector to issue or transfer any license, the applicant therefor shall have the right to appeal such refusal to the License Committee of the City Council of the City of Jacksonville by filing with the Municipal Inspector notice of such appeal within ten days after such refusal * * *.'

The generally accepted rule is to the effect that an ordinance which vests in municipal authorities arbitrary discretion to grant or revoke a license to carry on an ordinarily lawful business, without prescribing definite rule and conditions for the guidance of the authorities in the execution of their discretionary power, is invalid. 38 Am.Jur., p. 26, Section 337; Anno., 12 A.L.R. 1436, 54 A.L.R. 1104, and 92 A.L.R. 401.

There is no inherent right in a citizen to sell intoxicating liquors, nor a privilege to a citizen of Florida or a citizen of the United States. Mears v. Stone, 151 Fla. 760, 10 So.2d 487.

So there is the exception to the ordinary lawful business rule where the business to be engaged in is a mere privilege, rather than a right. For example, dealing in intoxicating liquors falls within the exception category, because its character tends to be injurious. It is thus stated in 38 Am.Jur., p. 29, Section 340:

'A majority of the cases passing upon the problem have concluded that an arbitrary discretion as to the granting of licenses may lawfully be delegated to municipal officials without prescribing definite rules of action in the licensing ordinances, where the discretion relates to a business the carrying on of which is a mere matter of privilege because of a character tending to be injurious, rather than an ordinarily lawful business the carrying on of which creates a property right or vested interest. * * *'

See McQuillan on Municipal Corporations, 2d Ed., Revised, Vol. 3, pp. 703, 704, Section 1105.

The early Florida Case, Ex parte Theisen, 30 Fla. 529, 11 So. 901, 32 Am.St.Rep. 36, is not applicable to the situation here.

There is the further modification to the ordinary business rule that it is not necessary to prescribe specific rule of action where the discretion relates to matters within police regulation and is necessary to protect the public health, safety, morals and general welfare. 'An ordinance which imposes upon an administrative officer as a prerequisite to the issuance of a license, the duty of ascertaining facts relating to public health, safety, welfare, etc., does not confer legislative power upon such officer in a constitutional sense. In such case, resort may be had to the courts, if his conduct should prove to be arbitrarily exercised or palpably unwarranted.' 38 Am.Jur., p. 27, Sec. 337.

And also there is again the qualification to the ordinary business rule, where the determination of personal fitness is involved. License ordinances of this nature are generally held valid upon the theory that such ordinances are construed to vest merely reasonable, and not arbitrary, discretion. So it is stated in 38 Am.Jur., p. 28, Sec. 338:

'License ordinances are generally held valid where a challenged grant of discretion to administrative officials of a municipality involves the determination of personal fitness of the applicant for the license. The theory upholding such ordinance, granting in general terms to officials the right in their discretion to grant or withhold licenses where personal fitness is to be determined as a prerequisite, is that since ordinances must be given a construction commensurate with validity wherever possible, such ordinances should be construed as giving merely reasonable discretion rather...