State ex rel. S. A. Lynch Corp. v. Danner
| Decision Date | 19 December 1947 |
| Citation | 159 Fla. 874,33 So.2d 45 |
| Parties | STATE ex rel. S.A. LYNCH CORPORATION et al. v. DANNER et al. |
| Court | Florida Supreme Court |
Appeal from Circuit Court, Dade County; Marshall C Wiseheart, judge.
Taylor & Burr, of Miami, for appellants.
Robert C Lane, of Miami, for appellees.
This is a case wherein relator sought a peremptory writ of mandamus against the City to compel it, the City, to cancel a license issued by the City to Danny Brown, authorizing him to sell intoxicating liquors on certain premises within the City.
An alternative writ was issued, and, upon answer being filed denying that the permit was wrongfully issued, evidence was taken and the respondents were discharged and cause dismissed. Thereupon the appeal was taken.
It is first observed that counsel for appellant in his brief has grouped his questions together and then proceeded to present his argument on each question severally.
Supreme Court Rule 20 prescribes that the argument addressed to the 'question' should follow the statement of the question. The purpose of this is to present the 'question' and argument together, for convenience and to avoid the necessity of stating the question more than once. The question need be stated once, but it should be with the argument addressed to it.
'Questions' are in the nature of argument, and somewhat secondary. 'Questions' grow out of and are only created by the assignment of error and the said Rule 20 prescribes that 'Specific assignments of error from which the questions argued arise should be stated, and if any reference to the transcript is made, the page should be given.'
It appears that Danny Brown, on November 11, 1946, was issued a license to sell intoxicating liquors on the certain described premises, but it has not been made to appear whether such premises are within or without the 'Downtown Business Zone.'
It also appears that prior to the issuance of the said license Brown made application to the 'City Planning Board' requesting a variance on the property in question, so as to permit the use of the premises as a restaurant and cocktail lounge, and the said 'Board,' after a hearing pursuant to a notice, passed a resolution recommending the granting of said 'variance,' but that on appeal to the City Commission by relators the recommendation was rejected by the City Commission.
It appears that respondent Brown procured two building permits. The permits were for alterations and additions to the existing building, and the first was issued in 1945 and the second in 1946; that the 'variance' was requested after the first permit was issued and before the issuance of the second building permit.
The provisions of the ordinance relative to 'variances' from the zoning regulations, like provisions relating to the function of the 'Planning Board' and the effect of its recommendations, seem not to have been plead or proven.
Miami enacted Zoning Ordinance #1682, and the property in question under #1682 came within a classification known as 'R-4,' which permitted hotels and apartment buildings wherein the vending of alcoholic beverages on the premises was not permitted according to the petition and alternative writ, but the exact provisions as to 'R-4' have not been placed before us.
Ordinance #1682 was amended by Ordinance #2896, and the City was divided into two zones, one of which was named as 'Downtown Business Zone' and the other as 'Combination Residence and Business Zone.' Said Ordinance #2896 regulated the issuance of 'occupancy permits' for the consumption or sale of liquor in each of said zones and prohibited the issuance of any such 'occupancy permit' within the 'Downtown Business Zone': '* * * if the place of business of said applicant is situated less than five hundred (500) feet from an established licensee; said five hunded (500) foot distance to be measured and computed from the front door of the established licensee to the front door of the proposed licensee, along the route of ordinary pedestrian traffic;' and prohibited the issuance of an occupancy permit for the sale of liquor in the said 'Residential and Business Zone': '* * * if the place of business of said applicant is situated less than two thousand five hundred (2,500) feet from an established licensee; said two thousand five hundred (2,500) foot distance to be measured and computed from the front door of the proposed licensee, along the route of ordinary pedestrian traffic.' And said Ordinance #2896 further provided that: 'The restrictions as to distance as hereinabove set forth, shall not be applicable to bona fide restaurants and dining rooms where the sale of liquor is entirely incidental to the principal use of selling food, and where no sign or display is made to the outside, indicating that alcoholic beverages are obtainable therein, and where such beverages are sold only to persons seated at tables where food is habitually sold and consumed, and where such restaurant has a space of at least four thousand (4,000) square feet occupied by and exclusively devoted to the use of seating customers at tables and where the chairs at such tables within said space number at least two hundred (200).'
By Article X of Ordinance #1682 it is...
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City Com'n of City of Miami v. Woodlawn Park Cemetery Co.
...the rezoning request were approved.6 Ellison v. City of Fort Lauderdale, 183 So.2d 193, 195 (Fla.1966); State ex rel. S.A. Lynch Corp. v. Danner, 159 Fla. 874, 33 So.2d 45, 47 (1947); Marell v. Hardy, 450 So.2d 1207, 1211 (Fla. 4th DCA 1984).7 City of Miami Beach v. Lachman, 71 So.2d 148, 1......
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Lewis v. City of Atlantic Beach, AT-15
..."grandfather" the continuation of existing nonconforming uses on property subject to the zoning classification. State v. Danner, 159 Fla. 874, 33 So.2d 45 (1947). By the same token therefore, it is reasonable to conclude that the termination of such grandfathered nonconforming uses may resu......
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Henderson Sign Service v. Department of Transp., s. NN-112
...a reasonable balance between the interests of the community and those of the private owner. See State ex rel. S.A. Lynch Corp. v. Danner, 159 Fla. 874, 33 So.2d 45, 47 (1947). By applying the same construction to the word nonconforming as provided in Section 479.24(1), I consider that the s......
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Wheeler v. Lautz
... ... dealt before with the matter of variances. In State v ... Danner, Fla., 33 So.2d 45, 47: ... '* * * ... State ex rel ... S. A. Lynch Corporation v. Danner, Fla., 33 So.2d 45, ... ...