Opinion
May 9, 1952.
Appeal from the Circuit Court, Dade County, Grady L. Crawford, J.
George A. Brautigam, Miami, for appellant.
L.W. Renfroe, Tallahassee, and Robert L. Achor, Miami, for Louis Schott, as Director of the State Beverage Department.
Robert C. Lane and Curtiss B. Hamilton, Miami, for Harold A. Clark, Sr., et al.
J. Harvey Robillard, Miami, for North Bay Village, appellees.
On June 12, 1951, appellant filed his complaint seeking a decree declaratory of his right to a license to conduct the business of vendor of intoxicating liquors for consumption off the premises at a certain location in North Bay Village, a municipal corporation in Dade County, naming as defendants Louis Schott, as Director of the State Beverage Department, North Bay Village, Harold A. Clark, Sr., doing business as the Key Club, and Harold A. Clark, Jr., doing business as the Harbor Lounge, and alleging substantially as follows: —
That he possessed the requisite qualifications for such a licensee, that two such licenses were permitted in the Village, that two had been issued but that only one of them was legal, viz.: the license issued to Harold A. Clark, Jr., doing business as the Harbor Lounge located at 7902 West Drive; that the other license viz.: that issued to Harold A. Clark, Sr., doing business as the Key Club and located at 7902 1/2 West Drive, was illegal because it was issued for the same location as the license previously issued to Harold A. Clark, Jr., is used in the same building, under the same roof and in pursuance of an agreement between the two licensees for the purpose of monopolizing the liquor business permitted in the village contrary to the provisions of law, especially F.S.A. § 542.01 et seq. Appellant alleges further that even if the license issued to Clark Sr., may be considered as a separate license it is for a location less than one thousand feet from the location covered by the license to Clark Jr., contrary to Ordinance No. 47 of the Village even though the ordinance purports to exempt from its provisions businesses in existence at the time of its passage but is in violation of the rule announced in State ex rel. First Presbyterian Church of Miami v. Fuller, 133 Fla. 554, 182 So. 888; Id., 134 Fla. 212, 183 So. 726 and 136 Fla. 788, 187 So. 148, and, therefore subject to revocation.
On June 22, 1951, the Clarks filed their motion to dismiss. On July 29, 1951, the Village filed its answer. On July 6, 1951, the State Beverage Director filed his motion to dismiss and his answer. On July 13, 1951, appellant filed his motion for summary decree upon the grounds, among others, that the answer of the State Beverage Director presented no issue of fact, that neither of the Clarks had complied with the fictitious name statute, that the defendant Harold A. Clark doing business as the Key Club was conducting such business in violation of law, F.S.A. § 610.33 et seq., and that decree pro confesso had been entered against the State Beverage Director, that the latter's answer filed subsequent to the entry of the decree pro confesso admitted the material facts alleged in the complaint. On July 20, 1951, appellant filed his motion for default judgment against the Clarks upon the ground that they had failed to comply with the fictitious name statute, F.S.A. § 865.09, — one of the grounds relied upon in his previously filed motion for summary decree. On August 13, 1951, the Clarks filed their answer and on the same day the circuit judge entered his order "on all pending motions" vacating the decree pro confesso "heretofore entered" against the State Beverage Director, denying the motion for default judgment against the Clarks, denying the motion for summary decree, deferring ruling on the motions to dismiss filed by the Clarks and the State Beverage Director until final hearing, striking the last paragraph of the answer of the State Beverage Director, requiring the Clarks to answer within five days (they answered the same day) and referring the cause to a special master with instructions to take testimony and report his findings and conclusions within thirty days. On August 23, 1951, a substitute master was appointed with instruction to report within an early date.
On September 25, 1951, the report of the special master was filed in which, after reviewing the testimony adduced before him and stating his view of the applicable law recommended dismissal of the complaint. Appellant promptly filed his exceptions to the report and was overruled and the decree of dismissal entered. It is from this decree that appeal was entered.
The relief sought by appellant was two-fold, that is, a revocation of the license held by Clark Sr., and the issuance to him, appellant, of a license. Obviously the latter objective can be attained only if the former is accomplished. It does not necessarily follow, however, that, assuming the senior Clark's license to be invalid and should be revoked for the reasons urged, or other reasons, appellant would have been entitled to the license he seeks. The record discloses and the special master found the facts to be as averred in the answer of the Village that appellant had made no application to it for a license and that several other applications for such a license had been made "when such license became available, and defendant (Village) should not be deprived of its lawful discretion in the issuance of such license when and if same become available".
So that, the chief benefit sought by appellant, personal to himself, is subordinate to and dependent, not only upon a revocation of the senior Clark's license leaving room for another license, but upon the selection of appellant by the licensing authorities to occupy the vacancy. The fact, if it be a fact that neither of the Clarks had complied with the fictitious name statute is not important because as to the primary relief sought by appellant — and that which is indispensable if he is to prevail — they were not necessary parties. State ex rel. First Presbyterian Church v. Fuller, supra. Other governmental agencies were involved as to whose privilege or competency to defend no question has been raised, or, indeed, can be. Likewise as to the charge that the senior Clark was operating in violation of F.S.A. § 610.33 et seq. The statute is penal and not regulatory. A violation of it constitutes a misdemeanor punishable by fine and imprisonment. It does not undertake, as does the fictitious name statute, to deprive a citizen of a right to the due processes of the law for the protection of his property rights.
In Baker v. State ex rel. Hi-Hat Liquors, Inc., 159 Fla. 286, 31 So.2d 275, 276, the holder of a liquor license sought unsuccessfully to have the State Beverage Director revoke a license held by his competitor whose business was being conducted in a location prohibited by ordinance. We found there that the declared object of the relator was to suppress competition and that he was without such special interest or private right as would entitle him to sustain his suit and that "the profits or commercial advantages which Hi-Hat might gain in the elimination of Baker's competition are too elusive and uncertain to sustain the action." Here, appellant is in an analogous position. He seeks — although by way of declaratory decree — the coercive power of the court, not only to create a situation by which a license such as he desires would be available, but to compel the issuance to him of the license. There can be no assurance that even if the revocation of the senior Clark's license were ordered the appellant would be the beneficiary, except, perhaps for the dubious satisfaction that, as a good citizen interested only in the enforcement of the law — he had partially gained his objective, a capacity not demonstrated here as distinguished from the predominant private right.
Finding no error the decree is affirmed.
SEBRING, C.J., and CHAPMAN and MATHEWS, JJ., concur.