State ex rel. Dixie Inn, Inc. v. City of Miami

• Citation: 156 Fla. 784,24 So.2d 705
• Parties: STATE ex rel. DIXIE INN, Inc. v. CITY OF MIAMI et al.
• Decision Date: 11 January 1946
• Court: United States State Supreme Court of Florida

24 So.2d 705

156 Fla. 784

STATE ex rel. DIXIE INN, Inc. v. CITY OF MIAMI et al.

Florida Supreme Court

January 11, 1946

Rehearing Denied Jan. 30, 1946.

Appeal from Circuit Court, Dade County; Ross Williams Judge.

G. A Worley and Jack Kehoe, both of Miami, for appellant.

J. W Watson, Jr., of Miami, and J. Lewis Hall and Parker & Foster all of Tallahassee, for appellees.

CHAPMAN, Chief Justice.

Pursuant to its charter powers the City of Miami enacted a general zoning ordinance No. 1682, which divided the said city into nine classes of district, viz.: R-1 one-family residential district; R-2 two-family residential district; R-3 apartment and hotel districts; R-4 apartment and hotel, hospital and sanitarium district; B-1 business district restricted; B-2 business district semi-restricted; B-3 business district liberal; I-1 industrial district limited; I-2 industrial district. The relator below (appellant here) operates a restaurant at No. 3134 Douglas Road, situated in District I-1 supra, where food, beer and wine are sold but the business is not licensed to sell liquor.

Miami's general Zoning Ordinance No. 1682 was amended in January, 1945, by adding thereto article XIII-A identified as Ordinance No 2896, which was designed or intended to regulate or restrict the location within the City of Miami where intoxicating liquors could be sold and by the provisions thereof divided the area of the city for the purpose of regulating the sale and consumption of liquor into two Zones. One Zone is referred to as the Downtown Business Zone and provides that no certificate of occupancy shall issue for the sale or consumption of liquor if the place of business of the applicant is situated less than 500 feet from an established licensee within the Downtown Business Zone area.

The second Zone of the City where the location of the sale and consumption of liquor is regulated or restricted by Ordinance No. 2896 is designated as the Combination Residential and Business Zone. The Ordinance provides that if the place of business of said applicant in the Combination Residential and Business Zone is situated less than 2500 feet from an established licensee, then the application for a license or permit for the sale and consumption of liquor therein must by the City of Miami be denied. The applicant's place of business is now situated less than 2500 feet from an established licensee. Sections 561.44 and 562.45, Fla.Stats.1941, F.S.A., authorizes the regulation of the location of places of sale of liquors, hours of business and sanitary condition by ordinance on the part of any Florida municipality.

The relator, in a mandamus proceeding instituted in the lower court, represented that on March 2, 1945, application to the City of Miami was made for a license to engage in the business of a retail dealer of alcoholic beverages at 3134 Douglas Road and that prior to the application the relator had complied with all legal and valid ordinances of said city, inclusive of depositing with the city the amount of money in the sum of $750.00 lawfully required for the issuance of an appropriate license or permit. The officials of the City advised the relator that the location (3134 Douglas Road) was then situated within 2500 feet of an established licensee then by law authorized to sell at retail alcoholic beverages and that the terms and provisions of Ordinance No. 2896 of the city prohibited the issuance of a license to him.

It is contended that Ordinance No. 2896 supra, adopted January 24, 1945, is void, invalid and unconstitutional and therefore unenforceable because (1) it was not enacted in conformity with the charter provisions of the city; (2) the city was without the charter power to enact the ordinance; (3) the Legislature of Florida has not by appropriate statutes authorized the enactment of said ordinance; (4) the ordinance is contradictory to and in conflict with other zoning ordinances of the city; (5) that the ordinance is unreasonable, arbitrary and discriminates against the relator; (6) the ordinance is unconstitutional in that it deprives the relator of property rights in the form of profits that could reasonably be expected to flow to it from the operation of said business.

It is well established that mandamus is a legal remedy which is not awarded as a matter of right but in the exercise of sound judicial discretion, and then only when based upon equitable principles. It is not used to enforce or determine equitable rights. State ex rel. Perkins v. Lee, 142 Fla. 154, 194 So. 315. It may issue to coerce the performance of official duties where officials charged by law with the performance of a duty refuse or fail to perform the same. Overstreet v. State ex rel. Carpenter, 115 Fla. 151, 155 So. 926. The relator must establish a clear right to its issuance and further show that no other adequate remedy exists. State ex rel. Ellis, v. Atlantic Coast Line R. Co., 53 Fla. 650, 44 So. 213, 13 L.R.A.,N.S., 320, 12 Ann.Cas. 359.

In the case of Blitch v. City of Ocala, 142 Fla. 612, 195 So. 406, we held that a municipality on a proper showing, may be restrained from the arbitrary exercise of lawful powers conferred upon it by the Legislature, as such powers must be exercised in conformity with the organic rights of individuals. The courts usually will hold a zoning ordinance invalid when it clearly appears that the restrictions are arbitrary and unreasonable and have no substantial relation to health, safety, morals or the general welfare. See City of Miami Beach v. Ocean & Inland Co., 147 Fla. 480, 3 So.2d 364; City of Miami v. Rosen, 151 Fla. 677, 10 So.2d 307; City of Miami Beach v. The Texas Co., 141 Fla. 616, 194 So. 368, 128 A.L.R. 350; Ex Parte Wise, 141 Fla. 222, 192 So. 872; Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303, 54 A.L.R. 1016, and similar cases. The illegality of zoning ordinances usually have been presented in equitable proceedings.

Broad and liberal powers have been granted from time to time by the Legislature under Section 8 of Article 8 to the City of Miami for regulation of the sale and consumption of liquors within said city. Section 561.44, F.S.A., grants additional powers and provides that no license shall be granted to a vendor whose place of business shall be within 2500 feet of an established school or Church except in incorporated cities and...