Summary
finding without analysis that a kindergarten was not a school for purposes of an ordinance prohibiting the sale of alcohol within a certain distance of schools
Summary of this case from Bailey, v. Illinois Liquor Control CommissionOpinion
November 4, 1947. Rehearing denied November 20, 1947.
A writ of certiorari to the Circuit Court for Dade County, Charles A. Carroll, Judge.
Chas. A. Morehead, William Clinton, Green and Morehead, Pallot, Smith, Green Phillips, for petitioners.
N.J. Durant and Hoffman Durant, for respondents.
The respondent as plaintiff brought his bill against the petitioners-defendants. The petitioners-defendants filed a "motion to dismiss" the bill and a "motion to strike" pats of the bill. Both motions were overruled and denied which orders petitioners now seek review by this Court.
The bill alleges that Boris Rivkind at a time when he had no place of business obtained a license for a bar and package store for the sale of liquor and transferred it to J-M Corp. and that such transfer was a violation of Section 561.32 F.S.A.
That the location of the bar and package store was without the "primary fire zone" as defined by the City's ordinance and within a thousand feet of the St. Alban's Kindergarten Nursery School; and that City ordinance 1682 prohibits the issuance of such a liquor license for a place of business nearer than a thousand feet to any school when without the "primary fire zone."
Plaintiff-respondent also sought to justify his right to bring the bill by authority of 54.11 F.S.A. as an act to abate a nuisance, proceeding on the theory that any place to sell liquor is a nuisance as defined by 823.05 F.S.A.
It is our conclusion that a kindergarten nursery is not a school within the intent of the ordinance and Chapter 561, F.S.A.; that a place of business where liquor is sold is not a nuisance per se; that plaintiff's bill failed to state facts sufficient to authorize him to bring a suit for injunction against the petitioners-defendants; and that the bill is without equity; and that the Chancellor was in error in denying the motion to dismiss the bill.
Certiorari is granted and the order denying said motion to dismiss is quashed.
TERRELL, BUFORD and ADAMS, JJ., concur.