Opinion
February 22, 1952.
Appeal from the Circuit Court for Orange County, Terry B. Patterson, J.
Sanders, McEwan Berson, Orlando, for appellants.
Giles F. Lewis, Orlando, for appellees.
This is an appeal from a final decree of the Circuit Court of Orange County, Florida, dismissing the bill of complaint and dissolving temporary injunction.
The appellants from October 1, 1950 to September 30, 1951 owned a state and county beverage license, and also a license from the Town of Lake Maitland. During the month of September, 1951, the appellants paid the required license tax for renewal of the state and county beverage license, and on September 19, 1951, tendered to the Town of Lake Maitland the sum of $750.00 and requested a renewal of the permit of the town to continue to have the privilege of dispensing wine, beer and spirits under its state license as provided by law. The town accepted the application and the check but did not issue the requested permit.
September 27, 1951, the Town Council passed Ordinance No. 127, whereby a zone was established within which it would be unlawful to carry on the business of vending beverages containing alcohol of more than 1% by weight, etc. The boundaries defined in this so-called zoning ordinance began at the South boundary of the limits of the town and continued to the North boundary, and extended 500 feet from each side of the center line of a highway designated as U.S. Highway No. 17.
On the 28th of September, 1951, the town returned the check for $750.00 to the appellants together with their application for a renewal of the permit, which application was not granted.
Prior to the enactment of Ordinance No. 127, the town had enacted Ordinance No. 102, which prohibited the issuance of any permit to vend intoxicating liquors within 750 feet of a licensed place then in existence. It was alleged and admitted that under these two ordinances there existed in the Town of Lake Maitland only one small stretch of property on Maitland Avenue, approximately 600 feet in length, within which a liquor license may be issued, and at the time of the filing of the bill of complaint there was, and still is, in existence a liquor license and permit issued by the town, and the business is carried on within these limits. It was further alleged and admitted that these two ordinances combined would prohibit the issuance of but one license in the Town of Lake Maitland, and that had already been issued, and the business was actually then in operation. This is prohibition instead of regulation.
There is only one question involved, and that is: Are these two Ordinances construed together in conflict with Section 561.20, F.S.A., and therefore, void as to the appellants?
It is contended on the part of the appellees that because the Town of Lake Maitland has the right to zone the territory within the town and prohibit the sale of intoxicating liquors within certain zones, the ordinances in question are valid.
Section 561.20, F.S.A., Subsection (1), is with reference to the number of licenses within the limits of any incorporated city or town, and sets forth limitations as to the number of licenses based upon the number of residents of the city or town, and then provides: "* * * however, that such limitation shall in no event be such as to prohibit the issuance of at least two such licenses in any such cities or towns * *."
The authority given to towns and cities to zone with reference to places where intoxicating liquors may be sold must be construed in connection with Section 561.20, and this section is a limitation upon the power of towns and cities to zone.
We conclude that the two ordinances in question construed together are in direct conflict with the provisions of Section 561.20, and as applied to the appellants they are invalid, unreasonable and void. Under the facts as they exist in this cause, the appellants were entitled to renewal of their license.
Reversed for further proceedings in accordance with this opinion.
SEBRING, C.J., and TERRELL, THOMAS, HOBSON and ROBERTS, JJ., concur.
CHAPMAN, J., not participating.