Opinion
October 5, 1951. Rehearing Denied November 15, 1951.
Appeal from the Circuit Court for Dade County, Vincent C. Giblin, J.
Montague Rosenberg, Miami Beach, for appellant.
Ben Shepard and Joseph A. Wanick, Miami, for appellees.
The plaintiff-appellant, Harry K. Brown, applied to the City Clerk of Miami Beach, Florida, during the month of April, 1951, for a liquor license to operate a package store for the retail sale of liquor at 7110 Bay Drive, Normandy Isle, Miami Beach, Florida. Ordinance No. 402, effective at the time of the application, was a zoning ordinance which zoned the premises where appellant desired to operate his liquor business. Section 6 of Ordinance No. 402 was controlling. Ordinance No. 391 is a population limitation ordinance, according to the City Clerk, which controlled, and the inhibitions of Section 6 of Zoning Ordinance No. 402 and Section 4 1/2 of Ordinance No. 391 made it unlawful for the City of Miami Beach to issue the liquor license as applied for.
The plaintiff filed in the court below his bill of complaint against the City of Miami Beach under the provisions of the declaratory decree Act, Chapter 87, F.S.A., and prayed for the issuance of a mandatory injunction, mandatorily compelling the issuance of the liquor license in accordance with the terms of the written application filed with the City Clerk of said City under date of April 16, 1951. The City of Miami Beach, by an appropriate answer to the bill of complaint, set out as a defense thereto that the issuance of the liquor license as applied for was prohibited by two ordinances of the city: Nos. 391 and 402. The plaintiff below thereafter amended his bill of complaint and the city filed its motion to dismiss the bill of complaint as amended. The court below granted the motion to dismiss and in its order of dismissal stated that factual matters necessary for granting the relief sought were not alleged in the bill of complaint as amended. The plaintiff appealed.
Counsel for appellant contends that Sections 6 and 7 of Zoning Ordinance No. 402 of the City of Miami Beach are invalid, unreasonable and unconstitutional as the same apply to him. Sufficient facts are not alleged in the bill of complaint as amended to sustain the argument that said Sections are unconstitutional in their application to the appellant. The Chancellor pointed out this deficiency in the bill as amended when entering the order of dismissal.
Section 561.44(1), F.S.A., provides "* * * incorporated cities and towns are hereby given the power hereafter to establish zoning ordinances restricting the location wherein a vendor licensed under § 561.34 may be permitted to conduct his place of business and no license shall be granted to any such licensee to conduct a place of business in a location where such place of business is prohibited from being operated by such municipal ordinance; provided, however, such power shall not apply to vendors licensed under paragraph (b) of subsection (1) of section 561.34, F.S.A."
As to the power of a municipality to regulate the sale of intoxicating liquors within its territorial boundaries this Court, in the case of City of Miami Beach v. State ex rel. Patrician Hotel Co., 145 Fla. 716, 200 So. 213, 217, said:
"The legislative power of the municipality to regulate the sale of intoxicating liquors within its territorial limits is not questioned. In the exercise of such regulatory power it is well settled that a municipality may limit the number of permits or licenses to be issued granting the privilege to be exercised within stated areas and within the municipality. See 15 R.C.L. 280, § 35, page 299, § 54 and authorities there cited; 124 A.L.R. 829 et seq.; 30 Am.Jurisprudence 314; Annotations in note following Rhodes v. State of Iowa, 170 U.S. 412, 18 S.Ct. 664, 42 L.Ed. 1088; note and annotations following Foster v. State of Kansas, 112 U.S. 205, 5 S.Ct. 8, 97, 28 L.Ed. 696.
"The nonexistence of the right in a licensee to continue in the enjoyment of the license privilege after the enactment of an ordinance prohibiting the conducting of such business in the then occupied area was definitely settled in this jurisdiction in the opinions and judgments in the cases of State ex rel. First Presbyterian Church of Miami, Florida, v. Fuller, 133 Fla. 554, 182 So. 888; Id., 134 Fla. 212, 183 So. 726; Id., 136 Fla. 788, 187 So. 148, 150. * * *" See State ex rel. Dixie Inn, Inc., v. City of Miami, 156 Fla. 784, 24 So.2d 705, 163 A.L.R. 577; State ex rel. Rimer v. City of Miami Beach, 158 Fla. 33, 27 So.2d 524; and Turner v. City of Miami, 160 Fla. 317, 34 So.2d 551.
Section 4 1/2 of Ordinance No. 391 provides: "No license shall be issued for the sale of intoxicating beverages within the incorporate limits of the City of Miami Beach by vendors operating places of business where beverages containing alcohol of more than fourteen per cent by weight are sold, as provided for in Subsection (g) of Subsection (h) of Section 7 of this ordinance, in excess of one license for each 1500 persons in said city according to the last preceding Federal Census." Ordinance No. 391 was enacted by the City of Miami Beach pursuant to the provisions of Chapter 24710, Special Acts of 1947, as amended by Chapter 26032, Special Acts of 1949. Section 1 of Chapter 24710, as so amended, restricts the issuance of one such liquor license for each 1500 persons in said city according to the last preceding Federal census.
It is contended that the foregoing restriction of one license by the terms of the ordinance and Chapter 24710, as so amended, to each 1500 people within the City of Miami Beach according to the last preceding Federal Census has the effect of prohibiting the sale of liquors within the city, although the power to regulate is recognized, the city cannot prohibit as here attempted. Factual allegations of these several arguments here presented do not appear in the bill of complaint as amended. This point was commented on by the Chancellor in the order of dismissal. If such matters had been set out in the bill of complaint, as amended, and testimony adduced in support thereof the Chancellor below may have reached a different conclusion.
Ordinance No. 391 was adopted pursuant to the provisions of Chapter 24710, Special Acts of 1947, as amended by Chapter 26032, Special Acts of 1949. Section 1 of Chapter 24710, as so amended, and Ordinance No. 391 provide for the issuance of one license for each 1500 people in said city according to the last preceding Federal census. It is this provision that counsel contends is arbitrary, unreasonable and unconstitutional in that it prohibits the sale of liquor rather than regulate it. The same and additional arguments were directed to Chapter 23351, Special Acts of 1945, made applicable to the City of Jacksonville, which cause was recently before this Court. We held the same were without merit and sustained the Act. See State ex rel. Wilder v. City of Jacksonville, 157 Fla. 276, 25 So.2d 569.
It is next contended that the zoning ordinance is invalid because it prohibits the operation of a liquor package store in a recognized night club location. Upon examination of the ordinance in question certified to this Court, we find the same regular on its face. Whether the ordinance is unconstitutional in its application to the appellant's property at the location alleged we are unable to say, as evidence was not taken on the point in the Court below. See City of Miami Beach v. Texas Co., 141 Fla. 616, 194 So. 368, 128 A.L.R. 350. We fail to find error in the record.
Affirmed.
SEBRING, C.J., TERRELL, ADAMS and ROBERTS, JJ., and DICKINSON, Associate Justice, concur.