Village Saloon, Inc. v. Division of Alcoholic Beverages and Tobacco, Dept. of Business Regulation
| Decision Date | 03 December 1984 |
| Docket Number | Nos. AY-335,AY-336,s. AY-335 |
| Citation | 463 So.2d 278,10 Fla. L. Weekly 265 |
| Parties | 10 Fla. L. Weekly 265 VILLAGE SALOON, INC., d/b/a Village Saloon, Appellant, v. DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO, DEPARTMENT OF BUSINESS REGULATION, Appellee. P.S.R. INVESTMENTS, INC., d/b/a Scottish Inn, Appellant, v. DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO, DEPARTMENT OF BUSINESS REGULATION, Appellee. |
| Court | Florida District Court of Appeals |
Larry Smith and Daniel O. Palmer of Smith & Palmer, Orange Park, for appellants.
Thomas A. Klein, Staff Atty., Dept. of Business Regulation, Tallahassee, for appellee.
Each of the appellants holds an alcoholic beverages license issued under chapter 561, Florida Statutes, and operates a lounge in the town of Orange Park, Florida. They appeal final orders of the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, assessing them with a civil penalty for selling alcoholic beverages after the legal hours of sale permitted by section 562.14, Florida Statutes. The two cases involve identical legal issues; therefore, we have consolidated them for purposes of disposition.
The factual circumstances giving rise to the administrative charges filed against appellants, as best we can discern from the informal, yet obviously inadequate record, 1 are as follows. For many years, a state statute has regulated the hours of sale of alcoholic beverages "except as otherwise provided by county or municipal ordinance." § 562.14(1), Fla.Stat. 2 At least since 1968, ordinances of the town of Orange Park have regulated such hours of sale within its municipal limits pursuant to that exception and section 562.45(2), Florida Statutes. The ordinance adopted in 1968 prohibited the sale of alcoholic beverages between the hours of 2 a.m. each Sunday and 7 a.m. the following Monday, and between 2 a.m. and 7 a.m. on all other days of the week, with certain exceptions not pertinent here. From time to time, the ordinances were amended for reasons not material to this dispute; however, at all times until 1981 the prohibited hours of sale remained as described above, and at no time did the town look to the state statute to regulate hours of sale.
In 1981, Orange Park adopted ordinance 18-81, which amended the prior ordinance as follows by adding the underscored words and deleting the stricken words:
Section 1. Code of Ordinances. Section 4-3 of the Code of Ordinances is amended to read as follows:
(a) No person shall sell, serve, cause or permit the selling, serving, drinking or consuming of any spiritous or intoxicating beverage including malt liquors, wines or beer, at or on the premises of any public place of business including stores, bars and restaurants or by such places or persons holding a license for the sale of the same, between the hours of 2:00 a.m. and 1:00 p.m. on Sunday and between the hours of 11:00 p.m. on Sunday and 7:00 a.m. on the following Monday, except as otherwise provided in this section.
This amendment, read literally, prohibited alcoholic beverage sales only between 2 a.m. and 1 p.m. on Sunday and between 11 p.m. Sunday and 7 a.m. on the following Monday, and eliminated the prohibition on sales during week days between 2 a.m. and 7 a.m. Nevertheless, vendors of alcoholic beverages in Orange Park, including the appellants, continued to close their sales at 2 a.m. as in the past, and this practice apparently continued without objection or dispute until Friday, September 3, 1983. On that day, the city manager apparently learned that the ordinance, as amended in 1981, no longer prohibited sales after 2 a.m. on weekdays, so he held a press conference and issued a memorandum to all businesses serving alcoholic beverages in the town which stated:
This is to advise you that no alcoholic beverages may be sold, consumed, served, or permitted to be served or consumed between the hours of midnight and 7:00 A.M. the following day, Monday thru (sic) Friday pursuant to Section 562.14, Florida Statutes. The Police Department of Orange Park has been instructed to enforce this statute beginning midnight, September 2, 1983. If necessary the State Division of Alcoholic Beverages and Tobacco will assist in the enforcement.
Further, pursuant to Section 4-3 of the Orange Park Code of Ordinances any person is prohibited from selling, serving, causing or permitting the selling, serving, drinking or consuming of any alcoholic beverages between the hours of 2:00 A.M. and 1:00 P.M. on Sunday and between the hours of 11:00 P.M. on Sunday and 7:00 A.M. on Monday.
Appellants received copies of this memorandum on September 3. They were warned several times by officers of the town police department not to sell alcoholic beverages after midnight that Friday. Appellants took the position that the hours of sale in Orange Park were regulated by the ordinance, not by the statute, and continued to sell alcoholic beverages after midnight. As a result, they were arrested and charged with violating section 562.14(1), Florida Statutes, a misdemeanor.
The following Monday, September 6, 1983, the town council met and duly adopted an emergency ordinance "amending section 4-3(a) ... to correct a scrivener's error created by ordinance no. 18-81" so as to again prohibit sales between 2 a.m. and 7 a.m. on weekdays, declaring:
[An] emergency exists with regard to an error contained in previously adopted legislation of ordinance 18-81 resulting in some confusion in the town and inordinate law enforcement in the community to the potential risk of police officers and members of the town.
On October 4, 1983, the town council duly passed an ordinance making this emergency amendment permanent. Consequently, only on a single Friday night, September 3, 1983, did the town manager and town police attempt to enforce prohibited hours of sale in accordance with section 562.14(1). At all other times, such sales were deemed regulated by ordinance.
The Division filed charges against each appellant pursuant to section 561.29, Florida Statutes, alleging that on September 3, 1983, appellants sold alcoholic beverages after 12 midnight, contrary to section 562.14, Florida Statutes. A notice to show cause was issued on October 24, 1983, advising appellants that "an informal conference regarding these charges has been scheduled at 10:30 a.m. on the 16th day of November, 1983 ... to determine if you desire a full and formal administrative hearing or if you wish to stipulate to the charges." The notice also advised each appellant of the right to a formal hearing in accordance with section 120.57, Florida Statutes, and that if appellants wished such a hearing they should file a written request containing the following information: (1) The name and address of the party making the request, (2) a statement that the party is making a request for a formal hearing, (3) a reference to the notice to show cause that the party had received. Finally, the notice advised that if a request for hearing was not received within twenty-one (21) days after the scheduled date for the informal conference, "a final order will be entered against you," which could result in the suspension or revocation of the appellant's beverage license or imposition of a civil penalty. By letter dated October 27, 1983, appellants responded through their attorneys. They acknowledged receipt of the notice to show cause and confirmed a telephone conversation of that date in which counsel for the Division and counsel for appellants agreed to delay the informal conference until after the County Court for Clay County ruled on a motion to dismiss the pending criminal charges against appellants arising out of the same alleged illegal sale of alcoholic beverages.
By order of October 28, 1983, the county court dismissed the criminal charges against appellants on the grounds that in view of the exception stated in section 562.14(1), the hours of sale prescribed by the statute were not applicable to appellants because there was in effect on September 3 a town ordinance which regulated the hours of sale within the town. The state attorney apparently declined to appeal this ruling. Appellants' counsel advised the Division of this ruling, but the Division took the position that the outcome of the criminal matter had no bearing whatsoever on the administrative charges pending with the Division. The Division notified appellants that a preliminary hearing was reset for November 16, 1983, in Jacksonville and again advised that appellants had the right to a formal hearing.
Though the record is silent on the matter, it was represented during oral argument that a preliminary hearing was held as scheduled on November 16, without achieving any satisfactory resolution of the charges. As a result, appellants' counsel made written request for a formal hearing pursuant to section 120.57(1), Florida Statutes. The request contained all the information required by the Division's notice to show cause. The Division acknowledged receipt of this request and stated, "You will be granted a hearing and notified later of the exact date, time and place of the hearing." Under date of December 13, the general counsel for the Department of Business Regulation wrote appellants' attorneys:
It does not appear from the correspondence accompanying the Notice to Show Cause that any disputed issue of material fact exists, i.e., it is not contested that the alcoholic beverages were sold as charged. Instead, the matter appears to center on the legal issue of the validity of enforcing the statutory closing hours.
Accordingly, the general counsel stated that the Division would set the matter for an informal hearing pursuant to...
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