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

City does not have the power have standing to challenge portion of city ordinance to regulate the manner of sale ( restrict consumption which restricted Sunday liquor sales to consump- to on premises only) because the laws of Florida al- tion on premises since owner was in group of liquor low a city to regulate only the hours, location, and vendors not allowed to sell liquor on Sunday and, sanitary conditions of establishments licensed to thus, was not affected by that portion of the ordin- sell liquor. We affirm. ance. West' s F.S. A. § 562. 45( 2). I] The Florida Legislature has empowered the cit- 7] Municipal Corporations 268 X121 ies to regulate the location of liquor establishments, the hours the establishments may stay open, and the 268 Municipal Corporations sanitary conditions of these establishments. Section 268IV Proceedings of Council or Other Govern- 562. 45( 2), Fla.Stat. ( 1979). Under the power to reg- ing Body ulate " location" of liquor establishments, municip- 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works. 399 So.2d 1077 Page 3 399 So.2d 1077 Cite as: 399 So.2d 1077) alities may permit one or more types of sale in a demonstrating no rational basis for the legislative designated area without being required to permit all distinctions in the ordinance. When reviewing a other modes of sale therein. Gross v. City of city ordinance " the motives of the commission and Miami, 62 So. 2d 418 ( F1a. 1953). In City of Miami the reasons for which it induced passage of the or- Beach v. State, 129 So. 2d 696 ( Fla. 3rd DCA dinance are irrelevant." City of Pompano Beach v. 1961),the court cited with approval Gross v. City Big Daddy' s, Inc., 375 So. 2d 281 ( F1a. 1979). All of Miami, supra, in upholding an ordinance which presumptions are in favor of an ordinance's validity excluded certain types of liquor establishments and all ordinances will be construed, if possible, to within certain zones of the city. In Casey v. City of give a result which renders them constitutionally Miami Beach, 141 Fla. 793, 193 So. 827 State of valid. High Ridge Management Corp. v. F1a. 1940), an ordinance was upheld which restric- Florida, 354 So. 2d 377 ( F1a. 1977). If reasonable ar- ted liquor vendors to being open nineteen hours per gument exists on the question of whether an ordin- day while allowing " night clubs" to remain open ance is arbitrary or unreasonable, the legislative twenty -four hours per day. Furthermore, in State v. will must prevail. City of Miami Beach v. Cayfetz, Noel, 124 Fla. 852, 169 So. 549 ( F1a. 1936), the 92 So. 2d 798 ( Fla. 1957). Florida Supreme Court upheld an ordinance which prohibited the sale of liquor between the hours of 6] [7] As to appellant's second point on appeal, we 10: 00 p. m. and 6:00 a. m. However, hotels having hold he has no standing to challenge that portion of 100 or more guest rooms were allowed to sell li- the ordinance which restricts liquor sales to con- quor between 10:00 p. m. and midnight on week sumption on premises only. Appellant is in that days. group of liquor vendors who are not allowed to sell liquor on Sunday. Therefore, he is not affected by 2] Based on the above authority, the City of Jack- that portion of the ordinance which restricts those sonville Beach was its acting within statutory establishments allowed to sell liquor on Sunday to power in restricting the Sunday sale of liquor in the sales for consumption on premises only. To have ordinance challenged below. standing to challenge a portion of an ordinance, ap- pellant must be affected by that portion he seeks to It is well -settled in this jurisdiction that in the exer- attack. 10 Fla.Jur.2d Constitutional Law s 62. cise of its police power a municipality may regu- late and restrict liquor vendors in the operation of Dne cannot raise an objection to the constitutional- their businesses. In so doing the municipality has ity of a part of a statute, unless his rights are in a wide discretion in classifying such liquor some way injuriously affected thereby, ... vendors and may enact restrictions and regula- tions to that end, so long as such restrictions and State ex rel. Clarkson v. Phillips, 70 Fla. 340, 70 regulations are on a reasonable and practicable So. 367 ( F1a. 1915). Since appellant is not affected basis as to each classification sought to be regu- by that portion of the ordinance he challenges in his lated. second point on appeal, he has no standing to raise his second point on appeal. 1079 City of Miami Beach v. Cohen, 47 So. 2d 565 F1a. 1950). Since there is a rational basis for the Accordingly, the trial court's order is AFFIRMED. city' s ordinance restricting liquor sales on Sunday to hotels, motels, restaurants, and private clubs, we McCORD and LARRY G. SMITH, JJ., and LILES, affirm the trial judge's order holding this ordinance WOODIE A., (Retired) Associated Judge, concur. constitutional. F1a.App., 1981. Hardage v. City of Jacksonville Beach 3][ 4][ 5] Appellant failed to meet his burden of 399 So.2d 1077 0 2009 Thomson Reuters/ West. No Claim to Orig. US Gov. Works. Attorney at Law Fla Bar No 115444 850) 243 - 6969 www. tonicraig. info Original Message---- - From: Mark Wiltsie [ mailto: mwiltsie@fwb. org] Sent: Friday, March 02, 2007 9: 40 AM To: toni@ticpa. gccoxmail. com Cc: Joyce Shanahan; James Frazier; Lisa Absher Subject: RE: Lease Agreement b/ t the City and Orasa Group ( two trees restaurant) Toni, I' d be pleased to have you draft the appropriate document. As you now the current lease has a provision for a CPI increase over the base rent for the second five year period. Therefore, I believe the lease extension should incorporate language to accommodate this. In addition, the use of the veranda continues to be an issue so we would propose language such that the City Golf Club would have exclusive use of the veranda during periods of time a tournament or event is scheduled until 7: 00 pm from March 11th to November 15th and until 6: 00 pm from November 16th to March 10th. In addition, language that this requirement could be waived with the approval of the Golf Club Administrator for special circumstances. Toni, I need to have this matter before the city council this month so anything you can do to expedite would be appreciated. When you have a draft completed I will meet with Pat Pearce and / or Mr T. to hopefully obtain their concurrence. Thanks for all your help. Mark From: Mark Wiltsie Sent: Tuesday, August 01, 2006 4: 29 PM To: Joyce Shanahan Subject: Golf Club Issues Joyce, Based on the July 3, 2006 e- mail we received from City Attorney Toni Craig regarding the alcohol use at the City Golf Club, I contacted the Department of Business and Professional Regulation, Division of Alcoholic Beverages & Tobacco to determine what if any restrictions are on the 11CG dual license we have at Two Trees restaurant. I spoke with Deputy Chief Elaine Klinger in the Tallahassee office who informed me that the 11CG license permits the sale of alcoholic beverages to members and their guests only. As such, the sale of alcoholic beverages to the general public under this license is not permitted. I asked Ms. Klinger what license would have to be secured to permit alcohol to be sold to members, their guests and the general public in which she responded that the city and the restaurant lessee should apply for a SRX license which could be done at their Pensacola office. She advised that the annual cost of the license would be $ 1, 820 as opposed to the $ 400 cost of the 11CG license. She further advised that it is most likely a temporary license could be issued on the same day the application was made. It would be my recommendation to advise Mr. T. of these finding and request he immediately apply for the SRX license. In a related matter, in May 2006 Mr. Gil Osterloh, VP for Beverages Law Professionals wrote a letter to Mr. T which states that FS 562. 02 forbids an alcoholic beverage licensee to have unauthorized alcoholic beverages at or in the place of business. Mr. Osterloh' s letter further states " Under Florida Statute 561. 14( 3), the only alcoholic beverages that are authorized at or in an alcoholic beverage retailer' s place of business are those purchased form a licensed distributor ". This seems to suggest that the city' s practice of permitting organizations who hold tournaments at the golf course to give away alcohol beverages to tournament players is unlawful. Therefore, I took the opportunity to ask Deputy Chief Klinger if this practice by the city was unlawful. She replied that there is " no violation" with the practice and " the state does not care" and it is " up to the city" if we want to continue this practice. In addition to the above Pat Pierce has requested that I arrange a meeting with the city attorney to discuss