Opinion
March 24, 1950. Rehearing Denied April 25, 1950.
Manuel M. Garcia, Tampa, for relator.
L.W. Renfroe, Tallahassee, for respondent.
Wm. C. McLean, Tampa, amicus curiae.
Pursuant to Sec. (2) of Section 561.44, F.S.A., chapter 23746, Acts of 1947, the Board of County Commissioners of Hillsborough County, Florida, by an appropriate resolution established a zoning area situated outside the incorporate limits of municipalities but within the limits of Hillsborough County wherein licensed vendors would be permitted to sell liquors, wine and beer as provided by law. In part it provided — "No establishment for the sale of whisky outside of any municipal limits may be nearer than 2500 feet to an established church or school according to the shortest route of ordinary pedestrian travel." It may be assumed that the relator's place of business is located within the area described in the resolution.
It is admitted that the relator now and for some time past has operated a licensed package store in the prohibited area and the resolution exempts the business from the terms of the resolution by the following language: "Be It Further Resolved that the existing vendor's places of business duly licensed under the beverage laws of Florida, and located within the aforesaid territory shall not be affected by this resolution so long as the same continue to be operated in accordance with law in the location where the same are now situated from the date of this resolution, unless and until the same or any of them may be revoked in accordance with the provisions of Law, but upon the surrender, revocation or discontinuance of such existing license, the same shall thereafter be forbidden within the purview of this resolution."
The relator applied to the State Beverage Director for the issuance of a license to sell beverages, regardless of alcoholic content, for consumption on the premises at the same location and in the same building where relator is now licensed to sell beverages in sealed containers for consumption off the premises. The Director disapproved the application for the reason, viz.: "The location is within an area of Hillsborough County prohibited from the conduct of such a licensed place of business herein applied for by resolution adopted by the Board of County Commissioners of Hillsborough County, Florida, January 28, 1949, pursuant to Section 561.44, Florida Statutes 1941, as amended [F.S.A.]; and although applicant now holds a valid package store license the approval of the foregoing application for a license for consumption on the premises (4 COP) in lieu of said package store license at the same location constitutes an enlargement or extension of an existing use contrary to the resolution aforesaid."
In an original action of mandamus, the relator contends that the approval of his application by the Beverage Director under the terms and provisions of the resolution as adopted by the County Commissioners is ministerial and the relator has a clear legal right to the approval of his application to sell beverages, regardless of alcoholic content, for consumption on the premises at the same location and in the same building where relator is now licensed to sell beverages in sealed containers for consumption off the premises. That this clear legal duty rests on the Beverage Director regardless of his answer and return to the alternative writ here issued.
The Beverage Director disapproved the relator's application because he "now holds a valid package store license and the approval of the foregoing application for a license for consumption on the premises in lieu of said package store license at the same location constitutes an enlargement or extension of an existing use contrary to the resolution." The relator contends (1) that he possesses the legal qualifications to receive the license, (2) that the disapproval by the Director is arbitrary, capricious, unwarranted and illegal, (3) that a reasonable construction of the resolution is that it prohibits the issuance of licenses at new locations within the zoned area and (4) the resolution was not intended to apply to licensed vendors at existing locations within the zoned area when the resolution was adopted.
The resolution and the statute authorizing it should be construed together. Sec. (2) of Section 561.44, chapter 23746, Acts of 1947, provide that the Board of County Commissioners of any County of the State of Florida may hereafter by resolution establish zones or areas in territory lying without the limits of incorporated cities or towns, wherein the location of a vendor's place of business licensed under this Act may be permitted to be operated; provided, however, such power shall not apply to vendors licensed under subsection (1) (b) of Section 561.34, F.S.A. and 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 resolution; provided, however, that no license under subsections (3) to (8) inclusive, of Section 561.34, F.S.A. shall be granted to a vendor in the territory lying without the limits of incorporated cities or towns whose plants and business is within 2500 feet of an established church or school.
It is settled law that mandamus will lie to enforce a ministerial act as distinguished from a judicial act or the exercise of power involving discretion. If the power sought to be coerced involved the exercise of discretion then a clear legal right has not been shown and the writ of mandamus will not issue. Mandamus is a legal remedy which is not awarded by the Court as a matter of right but only in the exercise of sound judicial discretion and then only when based on equitable principles. It is not used to enforce or determine equitable rights. The relator is required to establish a clear right to its issuance and go a step farther and show that no other adequate remedy exists. See State ex rel. Dixie Inn v. City of Miami, 156 Fla. 784, 24 So.2d 705, 16 A.L.R. 577; City of Miami Beach v. State ex rel. Epicure, 148 Fla. 255, 4 So.2d 116.
We have said in many zoning cases — the illegality of zoning ordinances usually is considered and determined in equitable proceedings. We see nothing on the record here to take this case out of our previous holdings.
If upon examination of an ordinance it should appear on its face that the ordinance was not authorized by the charter of the City or the applicable general law, then the ordinance on its face would appear invalid and mandamus may be the appropriate remedy — if the zoning resolution adopted here under Section 561.44, F.S.A., on its face should disclose that it was wholly unauthorized by the terms and provisions of Section 561.44, and therefore invalid, then the action of mandamus may be an appropriate remedy, but when it appears in a mandamus proceeding that the terms and provisions of a zoning ordinance substantially conform to the applicable law and it is charged that it is arbitrary, unreasonable, capricious and invalid only by the allegations of the pleadings — the actor in so doing simply places himself within the broad field of equitable proceedings — where evidence should be adduced by the litigants and equitable principles by the courts applied to the controversy.
We are convinced, after a careful consideration of the entire records, a study of the brief and after hearing oral argument at the bar of this Court, that the resolution complained of has not been so clearly shown to be arbitrary, unwarranted, unreasonable or invalid as to authorize the issuance here of a peremptory writ of mandamus as prayed for, but on the face of the resolution we find it to be in substantial conformity with applicable statutory law. It therefore follows that the motion for a peremptory writ of mandamus must be denied; the alternative writ previously issued must be quashed and the relator's petition dismissed.
It is so ordered.
ADAMS, C.J., and HOBSON, J., concur.
I think the phrase "vendors places of business duly licensed," as used in the resolution of the County Commissioners, refers as much to the nature of the license as to the physical location of the business.
A bar or cocktail lounge is essentially different from a package store and requires a different license.
The issuance to relator of a license for the sale of beverages for consumption on the premises would not be a license for the continuation of a place of business duly licensed at the time of the adoption of the resolution but it would, in my opinion, be the granting of a license to conduct on the specified premises a different business which was not licensed upon said premises at the time the Resolution was adopted.