State ex rel. Hoffman v. Vocelle

• Decision Date: 10 June 1947
• Citation: 159 Fla. 88,31 So.2d 52
• Parties: STATE ex rel. HOFFMAN v. VOCELLE, Director of State Beverage Department.
• Court: Florida Supreme Court

31 So.2d 52

159 Fla. 88

STATE ex rel. HOFFMAN v. VOCELLE, Director of State Beverage Department.

Florida Supreme Court

June 10, 1947

Thomas H. Anderson, of Miami, and Herbert L. Nadeau, of Jacksonville, for relator.

J. Tom Watson, Atty. Gen., and D. Fred McMullen, Asst. Atty. Gen for respondent.

CHAPMAN, Justice.

This is a case of original jurisdiction in prohibition. It has been made to appear by suggestion in prohibition that the relator now operates a business in Dade County, Florida, but outside the incorporate limits of any city or town, where intoxicating liquors are sold and consumed on the premises under a liquor license duly issued, pursuant to law, through the respondent as Director of the State Beverage Department of the State of Florida. The record discloses that the relator has invested large sums of money, not only in the establishment of the business, but to promote and expand its good will and in obtaining a large and lucrative trade.

The Beverage Director, on January 7, 1947, in writing charged the relator with the unlawful operation of the licensed premises under license No. 701. He was charged (2) with the maintenance of a nuisance contrary to law; and (2) that he sold, served and permitted to be sold intoxicating liquors on Sunday contrary to law. The notice of revocation is, viz.:

'You, David J Hoffman, trading as 'Tepee Club,' located at 5722 SW 8th Street, Miami, Dade County, Florida, are hereby notified that good and sufficient cause has been shown which I think warrants the revocation of State and County Beverage License No. 701 (COP) heretofore issued to you Dade County under the laws of Florida, said cause being as follows:

'1. That you maintain anuisance at and upon the above described premises licensed by you.

'2. That you did violate the provisions of Section 562.14, Florida Statutes, 1941, as amended by Chapter 21943, Laws of Florida 1943, and Chapter 22605, Laws of Florida, 1945 [F.S.A. § 562.14], commonly known as the 'Curfew Law,' in that you did, during hours prohibited by law,

'(a) Sell,

'(b) Serve,

'(c) permit to be served, and

'(d) permit to be consumed in, at and upon the premises licensed by you intoxicating beverages, to-wit, whiskey on Sunday, December 29, 1946, at or about 9:30 o'clock P. M.

'If you desire a hearing to enable you to refute the foregoing charges please so advise me in writing within ten (10) days, and I will set a date and designate a place and hour therefor.

'It cause to revoke your license is shown at such hearing, I will revoke it, such revocation to become effective ten (10) days from date of service thereof.'

The relator, in response to the aforesaid charges, advised the respondent that a hearing thereon was desired, when the Beverage Director, by appropriate order, fixed the time, place and hour of hearing as 3:30 o'clock P. M., March 10, 1947, at 805 Congress Building, Miami, Florida. The relator in this prohibition proceeding contends that the Beverage Director is without legal authority to conduct the aforesaid hearing or by appropriate order to revoke liquor license No. 701, because the sections of the statutes relied upon for revocation or cancellation are severally invalid and unconstitutional as being in contravention with and in violation of (a) Section 1 of Article V; (b) Section 1 of [31 So.2d 54] Article III of the Florida Constitution; and (c) the 14th Amendment to the Federal Constitution. These points are raised by demurrer filed by the Beverage Director and directed to the suggestion in prohibition.

Section 561.29, Fla.Stats.1941, as amended by Section 7 of Chapter 22663, Acts of 1945, Laws of Florida, F.S.A. § 561.29, provides the procedure for the revocation of liquor licenses. The Beverage Director, by the provisions of the Section, is granted the power and authority upon sufficient cause appearing of the violation by any licensee of any of the laws of Florida or of the United States, or of the licensee maintaining a nuisance or unsanitary premises, or engaging in or permitting disorderly conduct on the premises where such beverage business is conducted, to revoke the license of any licensee. The director, or any designated assistant, shall have the power and authority to examine the books and records of the licensee * * * to issue subpoenas for licensee or other witnesses * * * and to take depositions of witnesses within and without the State of Florida. The provisions of the civil law of florida relative to the obedience to a subpoena issued by a Judge under the laws of Florida requiring the attendance of a witness before the Judge in civil cases shall apply to the Beverage Director or any assistant by him designated and a writ of attachment may be issued to compel the attendance of any witness before the Director, and punishment for wilfull non attendance of the witness may be administered by the Director similar to the powers to punish for contempt conferred on the Circuit Courts.

It is the duty of the Director prior to the revocation of a license to give the licensee a written statement of such cause of revocation of license and a fair hearing if such hearing is demanded. The licensee shall be heard in person or by counsel and shall be entitled to produce witnesses and introduce books, records and other evidence. If the hearing is conducted by an assistant, a transcript of the proceedings shall be reviewed by the Beverage Director, who is required to enter his decision therein subject to the provisions of Section 561.30, Fla.Stats. 1941, F.S.A. A period of ten days is allowed for the licensee to apply to the courts for relief where the permit has by the Beverage Director been revoked.

Section 561.30, Fla.Stats.1941, F.S.A., provides:

'If within the ten-day period a licensee whose license has been revoked shall apply to the circuit court or any judge thereof, of the county wherein such licensee is licensed to do business under the beverage law by mandamus or injunctive proceeding or otherwise to test the validity of such revocation, such court or the judge thereof shall act immediately in the disposition of such proceeding and to make such order as to return days, time of filing pleadings and time for hearings on law or facts as may be necessary to a prompt determination of the validity of such revocation. If such proceeding be begun after such ten day period has lapsed it shall be heard according to the general law as it shall exist at the time of such proceeding.'

See Sections 561.02, 561.05, 561.08 and 561.31, Fla Stats. 1941, F.S.A.

It is established law that a sovereign state, when functioning under its police power, may enact such measures as are reasonably calculated to be essential or necessary in behalf of the general welfare for the control and regulation not only of the sale but the possession of intoxicating liquors. The form or method of regulation and control is one of public policy for the decision of each state, and frequently the prevailing view is reflected by appropriate legislative enactments. Many of the sovereign states, pursuant to legislative enactments, regulate and control the right and privilege of the sale of intoxicants by licenses issued in the name of the sovereign state to licensees possessing described qualifications as enumerated in the licensing act. The state under the police power may by statutory enactment prescribe rules, regulations, terms and conditions under which intoxicating liquors may be sold to the public. If an application is made to the State for such a license, then these statutory rules, regulations, terms and conditions become binding obligations between the State and the licensee upon the acceptance of a license and under which the licensee engages in the sale of whiskey. Mahoney v. Joseph Triner Corp., 304 U.S. 401, 58 S.Ct. 952, 82 L.Ed. 1424; Premier-Pabst Sales Corporation v. Grosscup, 298 U.S. 226, 56 S.Ct. 754, 80 L.Ed 1155; Mugler v. State Of Kansas, 123 U.S. 623, 8 S.Ct. 273, 31 L.Ed. 205; State ex rel. First Presbyterian Church of Miami v. Fuller, 133 Fla. 554, 182 So. 888; 48 C.J.S. Intoxicating Liquors, § 21, p. 154; 30 Am.Jur. 263-4, par. 21 and 22; 15 R.C.L. 255, 256, par. 10.

Section 561.15, Fla.Stats.1941, F.S.A., provides that licenses to sell intoxicating liquors shall be issued only to persons of good moral character who have not been convicted of any offense involving moral turpitude and not less than twenty-one years of age. If a corporation, then the officers and directors shall possess the above qualifications. Section 561.16, Fla.Stats.1941, F.S.A., provides that a license shall not issue to persons under sentence or parole and to no person now a fugitive charged with the violation of Florida prohibition laws or those of the United States. If to a corporation, then not to any officers or directors under sentence or on parole or who are fugitives charged with the violation of the Florida or United States prohibition laws. Section 5 of Chapter 22663, Acts of 1945, Laws of Florida, amending Section 561.17, Fla.Stats.1941, F.S.A., and Section 6 of Chapter 22663, supra, amending Section 561.25, F.S.A., enumerate certain qualifications essential prior to the issuance thereto of a liquor license. Liquor cannot be sold within certain distances from churches or schools outside of municipalities, nor to persons under 21 years of age. The Beverage Act prescribes additional prerequisites unnecessary to enumerate.

Section 7 of Chapter 22663, Acts of 1945, amending Section 561.29, Fla.Stats.1941, F.S.A., grants to the Florida Beverage Director the power and authority to revoke a liquor license when the evidence adduced affirmatively establishes; (1) That the licensee has violated (2) that the licensee maintains a nuisance or unsanitary...