State ex rel. Schwartz v. City of Hialeah
| Decision Date | 08 October 1963 |
| Docket Number | No. 63-88,63-88 |
| Citation | 156 So.2d 675 |
| Parties | STATE of Florida ex rel. Jack Schwartz and Albert Lowenstein, a partnership d/b/a Paddock Bar, Appellant, v. CITY OF HIALEAH, a municipal corporation under the laws of the State of Florida, Henry Milander, as Mayor of the City of Hialeah, J. M. Cherry, C. A. Whiteacre, V. J. Ashley, F. A. Benedetto, W. H. Lockward, M. E. Thompson and L. B. Whitworth, Jr., as Councilmen of the City of Hialeah, and James H. Goodlet, as City Clerk of the City of Hialeah, Appellees. |
| Court | Florida District Court of Appeals |
Heckerling & White, Miami, for appellants.
Ralph F. Miles, Hialeah, for appellees.
Before BARKDULL. C. J., and CARROLL and TILLMAN PEARSON, JJ.
Appellant instituted mandamus proceedings in the trial court to require the municipal appellee, through its appropriate officials, to issue to it an alcoholic beverage license within 1,500 feet of existing churches. The trial judge refused to issue either the alternative or the peremptory writ, and dismissed the cause. We affirm.
No clear legal duty appears on the municipality requiring it to issue a beverage license to the relator but, to the contrary, the record affirmatively discloses that the City would be in violation of its own ordinances prohibiting the issuance of an alcoholic beverage license within 1,500 feet of a church. 1 In this connection, see: Banyan Cafeterias, Inc., No. 3 v. Faith Lutheran Church of Hialeah, Fla.App.1962, 141 So.2d 5; Banyan Cafeterias, Inc., no. 3 v. Faith Lutheran Church of Hialeah, Fla.1963, 151 So.2d 426.
Counsel for the appellant has also urged the doctrine of estoppel as being applicable in the instant case, even though it is conceded that to issue the license in question would violate the ordinances of the municipality. The Supreme Court of Florida has held that the doctrine of estoppel is not applicable in transactions which are forbidden by statute or which are contrary to public policy. See: Montsdoca v. Highlands Bank & Trust Co., 85 Fla. 158, 95 So. 666. If the doctrine of estoppel is not applicable to transactions which are forbidden by statute, it should not be applicable to transactions or matters which are prohibited by municipal ordinances. This rule, applicable to prohibitory ordinances, would not necessarily be applicable to ordinances wherein the officials of a municipality had discretion in exercising their authority.
Therefore, for the reasons herein expressed, the action of...
To continue reading
Request your trial
-
Fraga v. Department of Health and Rehabilitative Services, 83-1374
...of Miami Beach v. Meiselman, 216 So.2d 774 (Fla. 3d DCA 1968), cert. denied, 225 So.2d 533 (Fla.1969); State ex rel. Schwartz v. City of Hialeah, 156 So.2d 675 (Fla. 3d DCA 1963). Courts have consistently refused to apply estoppel against the state on the basis of unauthorized or mistaken a......
-
INTER-CONTINENTAL PROMO. v. Miami Beach First Nat. Bank
...in Northwestern National Casualty Company v. McNulty, 5 Cir., 1962, 307 F.2d 432, 442-443. See also State ex rel. Schwartz v. City of Hialeah, Fla.App.1963, 156 So.2d 675, 676, reiterating the non-applicability of the doctrine of estoppel to transactions either forbidden by statute or contr......
-
Salz v. Department of Admin., Div. of Retirement
...of Miami Beach v. Meiselman, 216 So.2d 774 (Fla. 3d DCA 1968), cert. denied, 225 So.2d 533 (Fla.1969); State ex rel. Schwartz v. City of Hialeah, 156 So.2d 675 (Fla. 3d DCA 1963). Estoppel is established by proving "1) a representation as to a material fact that is contrary to a later-asser......
-
Travelers Ins. Co. v. Spencer
...361 So.2d 814 (Fla. 4th DCA 1978); Confederation Life Association v. Conte, 254 So.2d 45 (Fla. 3d DCA 1971); State v. City of Hialeah, 156 So.2d 675 (Fla. 3d DCA 1963); Montsdoca v. Highlands Bank and Trust Co., 95 So. 666 (Fla.1923). Moreover, an omission sufficient to imply the doctrine o......