Fort Walton Beach Council agenda — 04-28-09 regular — reading text

F. S., and has not delegated to the governing body of the municipality the I am, power or authority to alter these requirements. therefore, of the opinion that the City Commission of the City of Cocoa may not impose a residence requirement in conflict with the provisions of s. 163. 356( 3)( b), F. S. With regard to the authority of an administrative agency, such as the City of Cocoa Redevelopment Agency, to impose such residence requirements, it is the rule that such an Further, agency possesses no power not granted by statute. any reasonable doubt as to the lawful existence of a particular power sought to be exercised must be resolved against the exercise thereof. 12 Therefore, absent any statutory provision which authorizes a community redevelop- ment agency to impose residence requirements on the appointed commissioners thereof other than those prescribed in s. 163. 356( 3)( it is my opinion that the City of b), F. S., Cocoa Redevelopment Agency may not impose such a require- ment. Sincerely, Robert A. Butterworth Attorney General RAB / tgh 1] Section 163. 335( 1), F. S. 2] See, s. 163. 355, F. S., setting forth the requirements for the finding of necessity. 3] Section 163. 356( 1), F. S. 4] Id. 5] See, s. 163. 356( 2), F. S. And see, s. 163. 357( 1)( c), F. S., authorizing a governing body which consists of five members to appoint two additional members, prescribing the appointed members terms of office, and stating that p] ersons appointed under this section are subject to all provisions of this part relating to appointed members of a community redevelopment agency." 6] Section 163. 340( 17), F. S. 7] Section 163. 340( 10), F. S.  8] It is the rule that a legislative direction as to how a thing shall be done is, in effect, a prohibition against its being done in any other way. Alsop v. Pierce, 19 So. 2d 799, 805 - 806 ( Fla. 1944); Thayer v. State, 335 So. 2d 815, 817 ( Fla. 1976). See also, AGO 82 - 86 concluding in part that "[ t] he members of a community redevelopment agency are required to reside in or engage in business within the corporate limits of the municipality or county or the ' area of operation' of the agency which is coterminous therewith ." 9] State v. Egan, 287 So. 2d 1, 4( Fla. 1973); Van Pelt v. Hilliard, 78 So. 693 ( Fla. 1918). 10] See generally, First National Bank of Key West v. Filer, 145 So. 204, 207 ( Fla. 1933) ( authority of public officers to proceed in a particular way or only upon specific conditions implies a duty not to proceed in any other manner than that which is authorized by law); Alsop v. Pierce, supra at note 6. Cf., AGO 84 - 74 ( the governing body of a municipality in establishing a community redevelopment agency pursuant to Part III, Ch. 163, F. S., does not have the authority to alter the composition of the board of commissioners of the agency from that prescribed by statute). 11] See, City of Miami Beach v. Rocio Corporation, 404 So. 2d 1066, 1069 - 1070 ( 3 D. C. A. Fla., 1981), petition for review denied, 408 So. 2d 1092 ( Fla. 1981), wherein the court stated that "[ o] ne impediment to constitutionally derived legislative powers of municipalities occurs when the municipality enacts ordinances which conflict with state law. . . . Municipal ordinances are inferior to state law and must fail when conflict arises "; thus, while " legisla- tion may be concurrent, enacted by both state and local governments in areas not preempted by the state, concurrent legislation enacted by municipalities may not conflict with state law." See also, Rinzler v. Carson, 262 So. 2d 661 Fla. 1972). 12] State ex rel. Greenberg v. Florida State Board of Dentistry, 297 So. 2d 628 ( 1 D. C. A. Fla., 1974), cert. dismissed, 300 So. 2d 900 ( Fla. 1974).  I ORDINANCE 1796 2 3 AN ORDINANCE OF THE CITY OF FORT WALTON BEACH, 4 FLORIDA; PROVIDING FOR AUTHORITY; AMENDING SECTION 5 9. 01. 04, HOURS FOR SALES [ OF ALCOHOLIC BEVERAGES]; 6 RESOLVING SEVERABILITY; AND SETTING AN EFFECTIVE 7 DATE. 8 9 NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE 10 CITY OF FORT WALTON BEACH, FLORIDA, AS FOLLOWS: 11 12 Section 1. Authority & Intent 13 a. The authority for enactment of this ordinance is pursuant to the 14 powers vested in the City by Home Rule Authority of section 166. 021( 1), Florida 15 Statutes ( 2008), the provisions of Chapter ?, Florida Statutes, and the City 16 Charter. 17 18 b. Section 9.01. 04 of the Code of Ordinances was originally adopted 19 by Ordinance 61. 4 ( 1982) and amended by Ordinance 1386 ( 1999). Neither 20 ordinance adopted definitions for the terms it places," " restaurant," or " full 21 meal." 22 23 C. Through efforts of enforcement, it has been determined that 24 interpretation of these terms may create ambiguity. 25 26 d. WHY DIFFERENTIATE? 27 28 e. Therefore, the City Council finds that it will promote, protect, and 29 improve the health, safety, and welfare of the citizens by clarifying the terms 30 " eating places$, and " to restaurant" as they relate the sales of alcoholic 31 beverages. 32 33 Section 2. Amendment of Section 9. 01. 04, Hours for Sales, of Chapter 34 9. 01, Alcoholic Beverages, of the Code of Ordinances. 35 The Code of Ordinances, City of Fort Walton Beach, Florida, is hereby 36 amended by amending section 9. 01. 04 Hours of Sales, as follows: 37 38 Sec. 9. 01. 04. Hours for Sales. 39 40 41 42 43 44 . 45 pertieR of these days , 46 , OF seFved PUFGuaRt to thews Y ATTYDRAFT 4121109 47 secAien. On Sundays, no alGeheliG beyeFages, FegaFdless of the a! E; ehelaG 48 nor err , , , eFye d bete wen the hnU FS of _4 -00 rrr 49 a. m. a; d 1: 00 p. m eXGept that iR eg paves aGstau FaRtS that nl- 50 , 51 OF sewed between UF of 4. 00 a. m, aR d 10-00 00 -a. m.' aR d a T oats 0 he , 52 Gensumn ng of alGehek beverages eeR 10: 0 1- a.Fn.. and 53 full meal 54 55 56 A. On Monday through Saturday, alcoholic beverages, regardless of 57 the alcoholic content, may be sold, consumed, served, or permitted to be 58 served or permitted to be consumed in any establishment holding an 59 appropriate and valid license under the Division of Alcoholic Beverages 60 and Tobacco of the Department of Business and Professional Regulation, 61 between the hours of 7: 00 a. m. and 4: 00 a. m. the next morning. 62 63 1. No further distinction in hours of sales. 64 65 - OR- 66 67 2. Keep the Sunday restriction with the additional language: 68 69 B. On Sundays, alcoholic beverages, regardless of the alcoholic 70 content, may be sold, consumed, or served between the hours of 1: 00 71 p. m. and 4: 00 a. m. the next morning, except that in establishments that 72 have full course meals available at all times when the establishment is 73 serving alcoholic beverages, alcoholic beverages may be sold, consumed, 74 or served between the hours of 10: 00 a. m. and 4: 00 a. m. the next 75 morning. A "full course meal" as required by this subsection must include 76 a salad or vegetable, entr6e, beverage, and bread. 77 78 - OR- 79 80 3. Keep the Sunday restriction with the additional language: 81 82 B. On Sundays, alcoholic beverages= regardless of the alcoholic 83 content, may be sold, consumed, or served between the hours of 1: 00 84 and 4: 00 a. m. the next morning, except that in establishments with p. m. 85 more than fifty -one percent ( 51%) of total gross revenue derived from 86 retail sales of food consumed on the licensed premises, alcoholic 87 beverages may be sold, consumed, or served between the hours of 10: 00 88 a. m. and 4: 00 a. m. the next morning. The percentage of food sales shall 89 be computed by dividing gross revenues from the sale of food consumed 90 on the premises by the gross revenue of the licensed premises. 91 92 ATTYDRAFT 4/ 21/ 09 93 Section 3. Severability any provision of this ordinance be declared by Should a court of 94 95 competent jurisdiction to be invalid, such decision shall not affect the validity of 96 the remaining provisions. 97 98 Section 4. Effective Date 99 This ordinance shall take effect immediately upon approval by the City 100 Council and signature of the Mayor. 101 102 103 104 Adopted