27 So. 2d 829 | Fla. | 1946
On May 21, 1946, a peremptory writ of mandamus issued out of the Circuit Court of Dade County, Florida, upon the relation of Wadell L. Shehan directing and commanding the City of Miami to issue to the relator Shehan, upon his application and payment of the license tax required by law, licenses to retail liquor package goods at three locations in Miami, Florida, viz: (a) at 340 N.W. 14th Street; (b) 1327 N.W. 3rd Avenue; and (c) 1022 N.W. 2nd Avenue. The City of Miami filed in the lower court a certificate of compliance and perfected its appeal here.
Counsel for appellant pose four questions here for adjudication, but our study of the transcript and applicable authorities suggests the conclusion that each of the propounded questions may be sufficiently answered by submitting an answer to the question raised and insisted upon by counsel for the appellee viz: Did the lower court err in issuing the *57
peremptory writ of mandamus in the case at bar when following the rule of law enunciated by this Court in the recent case of Mechlow v. Vocelle, as reported in
Decided by this Court on June 29, 1945, along with Mechlow v. Vocelle was the case of City of Miami v. Kichinko,
"Both these cases involve the question of whether or not Ordinance No. 1526 as amended by Ordinance No. 2735, as further amended by Ordinance No. 2161, authorizes the City of Miami to limit the number of liquor distribution places within the City in view of the provisions of the State Beverage Act, F.S.A. Secs.
"In our view, this question was answered by us in William D. Singer et al. v. Scarborough et al.,
The question of whether or not Ordinance No. 1526 as amended by Ordinance No. 2735, as further amended by Ordinance No. 2161, authorized the City of Miami to limit the number of liquor distribution places within the City of Miami in view of the provisions of the State Beverage Act. F.S.A. Secs.
It is clear that the statute gives to the cities and towns of Florida the power to restrict, fix and determine the location of places within such city or town where a licensee can sell intoxicants, and the method of restricting the location of the licensee within the city or town under the statute is by zoning ordinances duly enacted. The statute provides further that "no license shall be granted to any such licensee to conduct a place of business in a location where such place of business is prohibited from being operated by such municipal ordinance."
Section
The appellant, City of Miami, by the terms of the peremptory writ of mandamus in the case at bar, was commanded to issue to the relator licenses to retail liquor package goods at three designated places within said city. Subsection 3 of Section 561.34 F.S.A. provides for the issuance of such a license, but the State of Florida can not issue the same when the vendor's place of business is located within 2500 feet of a school or church, except incorporated cities and towns are granted, by the provisions of Section 561.44 F.S.A., the power to fix and determine the place or location where the vendor shall operate within cities and towns of Florida, which power under the aforesaid section is left to these municipalities to regulate by an appropriate zoning ordinance lawfully enacted. It is likewise unlawful to operate such a package store in a location within cities or towns where such places of operation are prohibited by the terms of said ordinance.
Ordinance No. 1526, referred to in Mechlow v. Vocelle, supra, was passed and adopted by the City of Miami June 24, 1936. Ordinance No. 2735 was adopted January 20, 1943. *59
Ordinance No. 2161 was enacted by the City of Miami on August 16, 1939. Sections 561.34, 561.44,
The power of the City of Miami to limit the number of liquor distribution places within the city, as recited in the opinion in Mechlow v. Vocelle, supra, under the several provisions of the State Beverage Act and the Ordinances of the city, was by this Court denied and the authority therefor was our ruling in Singer v. Scarborough,
In support of the conclusion reached in Mechlow v. Vocelle, supra, the case of City of Miami v. Kichinko,
Section 33 of Ordinance No. 2161 is viz:
"SECTION 33. Ordinances numbered 1076, 1166, 1171, 1189, 1211, 1288, 1304, 1370, 1403, 1532, 1533, 1568, 1785, 1852 and 1977 of the City of Miami, are hereby specifically repealed, together with all laws or parts of laws in direct conflict herewith. Nothing herein, however, shall be taken as repealing any of the ordinances of the City of Miami relating to zoning or to regulation of distances between places of business engaged in the selling of alcoholic beverages, or at locations of said places of business, it being intended hereby not to repeal any of such ordinances, except wherein those ordinances may include conflicting provisions relating to regulatory subjects not necessarily incident to location or use."
Counsel for appellee strenuously contends in his brief and in able oral argument heard at the bar of this court that Ordinance No. 1526 and Ordinance No. 2735 of the City of Miami were stricken in their entirety by this Court in our holdings in Mechlow v. Vocelle and Moaba v. Vocelle,
In City of Miami v. Kichinko, supra, we held Section 3 of Ordinance No. 2161 of the City of Miami invalid. If the different Sections of an ordinance are independent of each other, the invalid portions thereof may be eliminated and the valid sections may be retained and enforced. Ex Parte Smith,
Reversed.
TERRELL, BUFORD and ADAMS, JJ., concur.