Opinion
No. 21814.
May 29, 1951. Rehearing Denied July 9, 1951.
Appeal from the Circuit Court, Dade County, George E. Holt, J.
Louis M. Jepeway and John G. Dauber, Miami, for appellant.
Hudson Cason, Rudolph Isom, all of Miami, and L.W. Renfroe, Tallahassee, for appellees.
The appellant was engaged in the sale of intoxicating liquors in an unincorporated part of Dade County where the operation of night clubs was forbidden by the zoning law. In April, 1948, an attempt was made to create the town of Northwest Miami, with jurisdiction over the territory where the appellant's bar was located, and the would-be municipality then re-zoned so that the appellant was able to obtain a license to run a night club, an advantage to him because of the later hours that a night club may remain open.
Within two months after the ostensible incorporation, taxpayers and residents instituted suit challenging the validity of the town, and were awarded a decree.
When the matter reached this court, it was held that the town "was neither a de jure municipal corporation, due to its failure to comply with fundamental and jurisdictional steps in its incorporation, nor a de facto government by reason of long and continued use of corporate powers with public acquiescence." Farrington v. Flood, Fla., 40 So.2d 462, 465. This opinion was filed 3 May 1949. Later in the year the appellant applied for a renewal of his license, but his application was denied in view of the ruling that the corporation did not exist even in a de facto sense and upon the theory, presumably, that the property therefore reverted to its original status as a portion of Dade County, where such businesses could not be lawfully conducted. The Dade County Zoning Board declined any relief and the Board of County Commissioners of Dade County confirmed that action.
The appellant then sought a decree adjudging that he was entitled to a "variance" permit and that he had the right to continue the operation of his night club and, further, enjoining the board of county commissioners and the director of the State Beverage Department from interfering with such use of his property. We find no fault with the chancellor's order dismissing this bill or with the action of the board of county commissioners in administering the law.
The appellant obtained no vested right which justified protection, and we find no evidence whatever of any laches on the part of appellees which would give him comfort.
There was no de facto existence, even, of the town of Northwest Miami; hence it had acquired no authority to regulate zoning in the particular area where the appellant's place of business is located. At the time he applied for the renewal of his license he, as well as his property, was in the same status as if no attempt had ever been made to form the corporation.
Nor does the appellant's question raise any appealing equitable principle. He asks this court whether the pretended town should "be considered a de facto municipality for the purpose of protecting [his] property rights * * * which accrued during the interim period between [the town's] attempted incorporation and the entry of a judgment of ouster."
It is not clear to us what property rights could have accrued, but it is certain that the appellant learned in May, 1948, that there had been an attempt to incorporate the month before, and it was during the intervening month that the attack was made on the incorporation, which culminated in the decree in Farrington v. Flood, supra; and the judgment of ouster was entered within three months thereafter. Any plans for the conduct of a night club and any expenditures in the enlargement of his building for that purpose were certainly made in an atmosphere of foreboding. It would tax credulity even to suggest that he could have lived in a settlement the size of Northwest Miami and not been conscious that the very foundation of the city was in doubt.
We find no appropriate reason to hold that there was any occasion for the city to retain a de facto status for the purpose of protecting any right of the appellant to a renewal of his license.
Affirmed.
SEBRING, C.J., and TERRELL and HOBSON, JJ., concur.