Opinion
October 5, 1951.
Appeal from the Circuit Court, M.B. Smith, J.
Martin Segal and Jack A. Nants, Orlando, for appellant.
Sanders, McEwan Berson, Orlando, for appellees.
The plaintiff-appellant on this appeal, for various reasons, contends that Ordinance No. 102 of the Town of Lake Maitland, Orange County, Florida, which regulates the sale of intoxicating liquors within its limits, is invalid and is being unconstitutionally enforced. Pertinent provisions of said ordinance are viz.:
"Section 1: Before any person, firm or corporation shall sell or cause to be sold or store or keep for sale in the Town of Lake Maitland, Florida, any liquor or beverage, whether spirituous, vinous, malt or fruit, containing more than three and two-tenths per centum of alcohol by weight, such person, firm or corporation shall apply for and obtain from the Town Council a vendor's permit and pay the license tax hereinafter specified.
"Section 2: Vendor's permits shall be of three classes, namely Class 1, to sell only beverages containing alcohol of more than one per centum by weight and not more than fourteen per centum by weight and wines regardless of alcoholic content; Class 2, to sell beverages regardless of alcoholic content only in sealed containers for consumption off the premises; Class 3, to sell beverages regardless of alcoholic content for consumption on the premises.
"Section 3: Before a vendor's permit shall be granted, the applicant therefor shall first present to the Town Council a written application setting forth the class of permit desired, the location at which it is proposed to conduct such sale, and the period for which the permit is desired.
"Section 4: The application for a vendor's permit shall be refused if, in the opinion of a majority of the Town Council, the general welfare of the Town requires such refusal, and after giving the applicant a full and fair hearing on not less than 10 days notice, if he shall demand a hearing.
"Section 5: When four vendor's permits of Class 1 have been issued and are in force, no more vendor's permits of Class 1 shall be issued until the population of the Town of Lake Maitland exceeds two thousand five hundred according to the latest State or Federal census, and then only in the proportion of one such permit to each five hundred persons in said Town.
"Section 6: When one vendor's permit of Class 2 has been issued and is in force no more vendor's permits of Class 2 shall be issued until the population of the Town of Lake Maitland shall exceed two thousand five hundred according to the latest State or Federal census, and then only in the p orportion of one such permit to each two thousand five hundred persons in said Town.
"Section 7: When one Vendor's permit of Class 3 has been issued and is in force, no more vendor's permits of Class 3 shall be issued until the population of the Town of Lake Maitland exceeds two thousand five hundred according to the latest State or Federal census, and then only in the proportion of one such permit to each thousand five hundred persons in said Town.
"Section 8: No vendor's permit of any class shall be issued to any applicant to operate at a location within seven hundred fifty feet of any location for which a vendor's permit of any class has been issued and is in force; provided, however, that this section shall not prevent the issuance of a vendor's permit of Class 1 or Class 3 for any location at which sales of Class 1 or Class 3 are conducted at the time this ordinance goes into effect, if such permit is applied for prior to the expiration of the permit for such location which is in force at the time this ordinance goes into effect. It shall be unlawful to operate a store for the sale of liquors or beverages in sealed containers for consumption off the premises, unless such store is at least seven hundred fifty feet from any location for which a vendor's permit of Class 1 or Class 3 has been issued.
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"Section 23: If any provision of this Ordinance is declared invalid, validity of remainder of the Ordinance shall not be effected thereby."
It appears by the record that the plaintiff-appellant applied for and obtained license No. 495 which authorized the sale of alcoholic beverages, regardless of alcoholic content, in Orange County, Florida, on or off the premises, on Highway 17-92, which place or location is situated within the Town of Lake Maitland. The Town of Lake Maitland, pursuant to applicable statutes, during the year 1939, enacted Ordinance No. 102, supra. Appellant applied to the Town Council for a license to sell alcoholic beverages, on or off the premises regardless of alcoholic content, within said town at his premises on Highway 17-92, which place is situated within 750 feet of "The Maitland Inn", where alcoholic beverages were being sold under a license previously issued by the Town of Lake Maitland for consumption on or off the premises, regardless of alcoholic content. Also Kelly's Grocery was situated within 750 feet of applicant's premises, but its license permitted the sale only of beer containing not over 3.2 per cent alcohol by weight.
When the appellant applied to the town for his permit there was then outstanding under Ordinance No. 102 a permit issued by the town to "The Maitland Inn" to sell beverages, regardless of alcoholic content, for consumption on the premises, and the location of the premises where the same were to be sold by the appellant was within 750 feet of "The Maitland Inn". The permit previously issued to The Maitland Inn and the one requested of the town by the appellant by the terms of Ordinance No. 102 were each classified by Section 2 of the ordinance, supra, as alcoholic vendor's permits "Class 3". Section 7 of the ordinance supra provides that no more than one permit in Class 3 shall be issued by the town while the population of the town is less than 2,500 people. There is no contention here that the population of the town now exceeds 2,500. The town denied the application for the permit.
Plaintiff filed in the court below his bill of complaint under Chapter 87, F.S.A., against the Town of Lake Maitland and prayed that an order be entered requiring it to issue to him a municipal license, regardless of the terms and provisions of Ordinance No. 102, for the sale of alcoholic beverages, regardless of alcoholic content, at plaintiff's premises located on Highway 17-92, for consumption on or off the premises. The bill of complaint was amended, an answer thereto was filed by the town, which answer was later amended. The town filed a motion to dismiss, on various grounds, the bill of complaint, as amended, which motion was by the trial court granted, and the plaintiff appealed.
Counsel for appellant contends, first, that Sections 6 and 7 of Ordinance No. 102 are in conflict with and in derogation of the several provisions of Sections 561.20 and 561.34, F.S.A., and for these reasons Sections 6 and 7 of the Ordinance are invalid and unenforceable. The answer to the contention is Section 561.44(1), which grants the power to the cities and towns of Florida to establish zoning ordinances restricting the location within a municipality where permittees may be allowed the privilege of selling alcoholic beverages. The Legislature, functioning under the police power of the Constitution, has the authority to enact regulatory provisions in the public interest applicable to the sale of intoxicating liquors. Those engaged in the sale of liquor are charged with a knowledge of the existence of this power at the time a license issues authorizing one to so engage.
Appellant's second contention is that Section 8 of the ordinance, supra, is invalid. The argument is made that the town acted in an arbitrary manner in providing that two permittees should not be allowed to operate liquor businesses within 750 feet of each other within the Town of Lake Maitland during the period the town's population was less than 2,500 people. The answer to the contention is our holdings in State ex rel. First Presbyterian Church v. Fuller, 136 Fla. 788, 187 So. 148; City of Miami Beach v. State ex rel. Patrician Hotel Co., 145 Fla. 716, 200 So. 213; 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; Turner v. City of Miami, Fla., 34 So.2d 551, and similar cases. The appellant has failed to carry the burden of establishing reversible error.
Affirmed.
SEBRING, C.J., TERRELL, ADAMS and ROBERTS, JJ., and DICKINSON, Associate Justice, concur.