Summary
holding a city liquor licensing ordinance in direct contravention of state law
Summary of this case from AGOOpinion
July 15, 1952. Rehearing Denied August 7, 1952.
Appeal from the Circuit Court for Sarasota County, W.T. Harrison, J.
Howard P. Macfarlane, Tampa, and Arthur A. Simpson, of Macfarlane, Ferguson, Allison Kelly, Tampa, for appellant.
John F. Burket, Jr., and Burket Burket, Sarasota, for appellee.
Appellant is a wholesale beer and wine dealer, licensed by the State and Federal Government. Its principal place of business is Tampa, Florida. It distributes beer and wine by truck in Sarasota County from its Tampa warehouse but in the interest of more economic service, applied for and was granted a State license to open a branch warehouse in Sarasota. As authorized by Section 561.36, F.S.A., the City of Sarasota imposed the city license tax of one-half the amount of State and County tax. This authorized a reduction in State and County tax of the amount paid.
Appellant requested and was issued its State and County license for the tax year beginning October 1, 1951. It made application for City license for same period, tendering the amount required but the tender was declined. On petition of appellant, alternative writ of mandamus was directed to appellee, requiring it to issue the city license or show cause why it refused to do so. An answer to the alternative writ interposed a city ordinance which authorized it to investigate the character and decline licenses to those it finds unfit. There was attached to and made a part of the answer, a report of the City Attorney and a letter from the Hillsboro Crime Commission concerning certain citizens of Tampa who were at one time connected with appellant. A motion to strike the ordinance and the report and for peremptory writ was denied, the writ was quashed and the action was dismissed. This appeal was prosecuted.
The point for determination is whether or not the provisions of the State Beverage Act for licensing distributors of beer and wine are conclusive or may the city impose such additional requirements as it sees fit.
Chapters 561 and 562, F.S.A. constitute the State Beverage Act. They regulate the sale and distribution of all classes of intoxicating beverages. Section 561.15, F.S.A., among other things, requires that "licenses to corporations shall be issued only to corporations whose directors and officers are persons of good moral character and who have not been convicted of any offense involving moral turpitude." The State Beverage Director is required to approve the applications of persons engaged in the distribution of intoxicating beverages, including their moral character.
Section 562.45, F.S.A. authorizes municipalities to enact ordinances "regulating the hours of business and location of places of business, and prescribing sanitary regulations therefor, of any licensee under the beverage law within the corporate limits of such city or town." The regulating power of the municipality is limited to that converred by the legislature and is defined by the quoted provision of Section 562.45, F.S.A. Municipalities have no authority to regulate beyond the scope of this provision.
The ordinance in question in some phases is in direct contravention of the State Beverage Act. It authorizes the City of Sarasota to investigate and refuse to approve the issue or transfer of any license if it adversely affects the best interest of the city, its health, morals and general welfare. The statute quoted limits the city's power to regulate hours and location of business, and to prescribe sanitary regulations therefor. The ordinance is unlawful and unreasonable in that it makes the city the sole authority to determine who may sell beer and wine within its limits and it may predicate this authority on what it finds about persons who have been connected with appellant for the last five years, whether now connected with it or not. The motion to strike the ordinance should have been granted. The motion to strike the report of the Crime Commission should have also been granted, for it had no place in the pleadings.
For the reasons so stated the judgment appealed from must be and is hereby reversed.
Reversed.
SEBRING, C.J., and THOMAS and HOBSON, JJ., concur.