Florida/Georgia Personal Injury & Workers Compensation

...hen the application for a license or permit for the sale and consumption of liquor therein must by the City of Miami be denied. The applicant’s place of business is now situated less than 2,500 feet from an established licensee. Section 561.44 and 562.45, Fla....

...h licensees would be permitted to conduct such a place of business and no license to be granted to any such licensee to conduct a place of businéss in a location where such place of business is prohibited by municipal ordinance from being operated. Section 562.45, Fla....

...inance No. 2896 was enacted pursuant to its charter provisions, inclusive of giving the proper notice; (3) it was enacted pursuant to charter authority and is a valid and legal ordinance; (4) it was enacted by the city pursuant to Section 561.44 and 562.45, sufra, and its charter powers....

...ry out the beverage laws of this state. Sections 561.02 and 561.11, Florida Statutes (1975). Local control over establishments selling alcoholic beverages is limited to: (1) hours of operation; (2) location of business; and (3) sanitary regulations. Section 562.45(2), Florida Statutes (1975)....

...selling meets this requirement. The Association fails to recognize, however, that this scheme itself reserves spheres of regulation to junior legislative bodies. See, e.g., § 561.14 (hours of operation in absence of county or municipal ordinance); § 562.45(2)(a) (local regulation of hours and location of operation, sanitary regulations); § 562.45(2)(b) (type of entertainment or conduct permitted in licensed premises); and, not least of all, Art....

...Petitioner was subsequently charged by information with selling an alcoholic beverage without a license, in violation of section 562.06, Florida Statutes (1979), and resisting a law enforcement officer without violence, in violation of section 843.02. Section 562.45(1), the penalty statute covering a violation of section 562.06, classifies a violation of any provision of the Beverage Law, Chapter 562, for which no penalty has been specifically provided as a second-degree misdemeanor unless the off...

...ions, answers to interrogatories, ... admissions on file" and/or "affidavits" to oppose summary judgment). The only arguable "criminal activity" is that of bribery under the Florida Beverage Law, Fla.Stat. § 561.42(1), as enforced through Fla.Stat. § 562.45(1) (1995)....

...business and location of places of business and to prescribe sanitary regulations for liquor establishments, as theretofore exercised by the cities under the authority of Chapter 3163, Laws of Florida, Acts of 1879, now appearing as Sections 168.07, 562.45, Florida Statutes, F.S.A....

...The ordinance in question was not a comprehensive zoning plan regulating the sale of alcoholic beverages throughout the entire city limits; it affected only one small area of the city and was enacted under the City's power to regulate the "location of places of business" of liquor licensees, as reserved to it by Section 562.45, supra....

...ld, at retail", Section 168.07, Florida Statutes, F.S.A., and that the State Beverage Act expressly reserves to the cities this grant of power with respect to the regulation of hours of sale, location of places of business, and sanitary regulations. Section 562.45, supra....

...ect or impair the *249 power or right of any county or incorporated municipality of the state to enact ordinances regulating the hours of business ... of any licensee under the Beverage Law within the county or corporate limits of such municipality. § 562.45(2)(a), Fla....

...ges "except as otherwise provided by county or municipal ordinance." § 562.14(1), Fla. Stat. [2] At least since 1968, ordinances of the town of Orange Park have regulated such hours of sale within its municipal limits pursuant to that exception and section 562.45(2), Florida Statutes....

...f establishments licensed to sell liquor. We affirm. The Florida Legislature has empowered the cities to regulate the location of liquor establishments, the hours the establishments may stay open, and the sanitary conditions of these establishments. Section 562.45(2), Fla....

...The proposed ordinance would apply inter alia to restaurants which, like the plaintiff, are licensed under the beverage laws of the State of Florida. "Plaintiff argues that the proposed ordinance is invalid on three (3) grounds: "1. Dade County lacks the powers of an `incorporated municipality' under Section 562.45(2), Florida Statutes, "2....

...r violation of the beverage law, is deemed, upon conviction, to be guilty of a felony, and to be punished by imprisonment of not less than one year nor more than five years in the State penitentiary or fined not more than five thousand dollars. Sec. 562.45 , Florida Statutes 1941, F.S.A....

...d as a "second offender" in the violation of the beverage laws of this state, a verdict of "guilty as charged in the information" is sufficiently certain to sustain a judgment imposing punishment as for the commission of a felony, under the terms of section 562.45 , supra....

...of the present violation charged, the defendant should be found not guilty as to the whole charge. If the jury returns the first verdict suggested above, the entry of a judgment and the imposition of a sentence for a felony would be authorized under section 562.45 , supra....

...We explained that under Home Rule a municipality may now enact legislation on a topic already visited by state law except in those areas where the subject matter has been expressly preempted by the constitution or state law or when the ordinance directly conflicts with state law. Section 562.45(2), Florida Statutes (1981), reads as follows: Nothing in the Beverage Law contained shall be construed to affect or impair the power or right of any incorporated municipality of the state hereafter to enact ordinances regulating the h...

...rdinance. It should be noted that under Section 561.44, Florida Statutes 1941, and F.S.A., the city was empowered to establish zoning ordinances restricting the locations where stores could be maintained for the sale of intoxicants, and also that in Section 562.45 it was provided that nothing in the beverage act should affect the power of a city to enact ordinances regulating such locations....

...hat J.J.T.'s "operation be `grandfathered in' and not be curtailed by a subsequently enacted ordinance," and that the Legislature, having explicitly outlined the power of municipalities to regulate alcoholic beverage licensees in Sections 562.14 and 562.45(2), Florida Statutes (1981), had preempted the power to enact legislation of the sort found in the ordinance....

...ate had preempted the right to regulate in this field. Acknowledging that the regulation and operation of establishments selling alcoholic beverages was statutorily vested in the then-called Division of Beverages, with local control being limited by Section 562.45(2), Florida Statutes, to hours of operation, location of the business and sanitary regulations, the court nonetheless concluded that the ordinance was "one directed at the discipline and good order of persons while in establishments se...

...1st DCA 1981); Other Place of Miami v. City of Hialeah Gardens, 353 So.2d 861 (Fla. 3d DCA 1977). [4] We therefore need not decide whether the reading urged by the City, that is, that the ordinance comes within the express provision of the Beverage Act, see § 562.45(2), Fla....

...Section 561.44, Florida Statutes 1949, F.S.A. And the Act also expressly reserves to the municipalities the right "to enact ordinances regulating the hours of business and location of places of business, and prescribing sanitary regulations therefor," of any licensee under the Act. Section 562.45, Florida Statutes 1949 F.S.A....

...beverages must be inaccessible to the public;" and that the restriction to sales from "service bars" in District "F" is only "a regulatory use of a liquor license as to the place of sale of liquor" and, as such, authorized under Sections 561.44 and 562.45, supra....

...Daniels, 156 Fla. 437, 23 So.2d 492, 494, "a `place of business' is *513 simply a location where business is transacted or, as it is defined in Oxford English Dictionary, `a shop, office, warehouse, commercial establishment.'" As used in Sections 561.44 and 562.45, supra, a "place of business" means the entire premises to which the liquor license is issued, and not the particular place within such premises where the liquor is actually dispensed....

being operated by such municipal ordinance." Section 562.45 F.S.A. fixes the several penalties to be imposed

...1951, 59 So.2d 511, 512, the Supreme Court said: "* * * And the Act also expressly reserves to the municipalities the right *701 `to enact ordinances regulating the hours of business and location of places of business, and prescribing sanitary regulations therefor,' of any licensee under the Act. Section 562.45, Florida Statutes 1949 F.S.A....

...business and location of places of business and to prescribe sanitary regulations for liquor establishments, as theretofore exercised by the cities under the authority of Chapter 3163, Laws of Florida, Acts of 1879, now appearing as Sections 168.07, 562.45, Florida Statutes, F.S.A....

...liquor license under the exception as provided for in the State Beverage Law rather than as provided for in the city code, by stating: "That said restaurant complies with all of the terms and conditions of Florida Statutes Annotated 561.20 (2)." [5] § 562.45, Fla....

...w to be applied by the Court. *1178 Plaintiff argues that the conduct of employees or patrons on the premises of a licensed establishment is not within the scope of the licensing authority delegated to the City of Fort Myers by the State. Fla. Stat. § 562.45(2)....

...Dexterhouse, 348 So.2d 916 (Fla. D.C.A.2d 1977). In that opinion, the Court reviewed a virtually identical ordinance passed by Lee County. The Court considered whether the State had preempted the right of regulation in this field by the operation of Fla.Stat. § 562.45(2), which limits local control over establishments selling alcoholic beverages to hours of operation, location of business and sanitary regulation....

...Applying this appropriate standard of review, we conclude that here, the trial court correctly determined that the subject ordinance was within constitutional parameters, as reflected in its final judgment: The right of the County to regulate locations that sell alcoholic beverages is grounded in Section 562.45(2), Florida Statutes,[ [5] ] and is clearly related to the *737 health, safety and welfare of its citizens....

...[4] The district court quoted isolated portions of the variance proceedings which it apparently thought important to the validity of the ordinance which restricted liquor locations, even though the validity of the ordinance was not the subject of the formal hearing. [5] Section 562.45(2)(a), Florida Statutes (1999), provides: (2)(a) Nothing contained in the Beverage Law shall be construed to affect or impair the power or right of any county or incorporated municipality of the state to enact ordinances regulating the...

...lation of Article I, Section 10 of the U.S. Constitution, prohibiting unlawful bills of attainder; (4) violation of substantive due process; (5) violation of procedural due process; (6) violation of equal protection; (7) violation of Florida Statute 562.45(2)(c), prohibiting discriminatory treatment of licensee under state beverage law; (8) promissory estoppel under Florida Law; (9) violation of the takings clause of the Fifth Amendment of the U.S....

...Because no genuine issues of material fact exist that would establish that Plaintiffs substantive due process and equal protection rights have been violated, the Court grants Defendant's Motion for Summary Judgment as to Counts IV and VI. F. Discriminatory Treatment of Licensee Under State Beverage Law, Fla, Stat. Section 562.45(2) (c) Defendant City of Fort Lauderdale asks the Court to grant summary judgment as to Count VII, which alleges discriminatory treatment of a licensee under state beverage laws....

...and protect the general health, safety and welfare of the public, shall treat a licensee in a nondiscriminatory manner and in a manner that is consistent with the manner of treatment of any other lawful business transacted in this state." Fla. Stat. Section 562.45(2)(c). Plaintiffs arguments that Defendant violated section 562.45(2)(c) are identical to its arguments that Defendant violated Plaintiffs equal protection rights. Therefore, based on the analysis in the above section, no genuine issues of material fact exist that would establish that Defendant violated section 562.45(2)(c) by treating Plaintiff in a discriminatory manner with regard to its ordinances regulating alcohol....

...ty of the statute which *403 purported to make the offense charged a felony which would be cognizable in that forum, [2] and the appeal is made directly to this Court by reason of that finding. [3] *404 The applicable provisions of the law appear as Section 562.451, Florida Statutes, F.S.A. [4] The contentions of appellee in attacking this statute are, in essence: that the controlling provision, sub-section 562.451(4), penalizes the possession of "moonshine whiskey" in a blanket fashion; that in sub-section (2), of earlier origin, this term is used to refer to whisky in a certain state of manufacture without limitation to that of contraband char...

..."prima facie evidence that the same was not made or manufactured in accordance with" our law. [11] From this analysis the conclusion is inescapable that Chapter 29964, supra, did more than provide a new penalty for a previously defined offense. Sub-section 562.451(1) had, of course, theretofore proscribed the possession of alcoholic beverage not "made or manufactured in accordance with the regulatory provisions of the laws of the state," but the reasoning above demonstrates the necessity, under...

...a declaration that it was an act "Prohibiting the Possession of Moonshine Liquor; and Providing for Penalties for the Violation of the Beverage Law." Chapter 29964, so far as here material, was entitled as an act simply "amending Sub-section (3) of Section 562.451, Florida Statutes, and adding a new Subsection (4) thereto, providing for penalties for possession of mash, wort, wash or moonshine liquor." Even assuming that this might in other circumstances be adequate to encompass the enactment o...

...[15] For the reasons above noted, the re-enactment of this provision in the process of statutory compilation does not bolster the appellant's position and the trial court properly concluded that, under the rules of construction applicable to penal laws in general, section 562.451(4) is invalid, and the information predicated thereon must fall. [16] Affirmed. TERRELL, C.J., and THORNAL and O'CONNELL, JJ., concur. ROBERTS, J., dissents. NOTES [1] "Motion to quash was filed to both Counts of the Information and Count 1, which is brought under Fla. Stat. Section 562.451, was challenged, among other reasons, on the ground that the Circuit Court does not have jurisdiction, since the Statutes fail to clearly make the crime with which the defendants are charged a felony. It is not contended for the purpose of this particular ground in the motion to quash that a crime is not charged, but the contention is that the crime charged is a misdemeanor and that the Statute is wholly insufficient to make it a felony. "Section 562.451, Florida Statutes [F.S.A.], is as follows: * * * "From the above it will be seen that paragraph (1) defines the crime and makes it a crime to own any mash, wort, wash or alcoholic beverage unless the same shall have been made or manufactured in accordance with the regulatory provisions of the laws of the State....

...iskey is an alcholic liquor manufactured without the protection of and contrary to law, in respect to which no tax is either levied or may be collected.' "Attention is called, however, to the fact that this case was decided on June 4, 1943, and that Section 562.451, Florida Statutes, [F.S.A.], under which these defendants are being prosecuted, first became a law in 1945, which was after the decision in the Brown v....

...in fact moonshine whiskey. "23 C.J.S. Criminal Law § 865, p. 75: "`One need not be an expert or analyst or have technical knowledge to be qualified to testify that particular liquor was * * * moonshine or corn whiskey.' "Paragraph (3) of Fla. Stat. 562.451 [F.S.A.] deals only with such alcoholic beverage as is commonly known as moonshine whiskey and provides that anyone possessing less than one gallon of moonshine whiskey shall be guilty of a misdemeanor....

...d in accordance with the regulatory provisions of the laws of the State of Florida. "Criminal statutes should, of course, be strictly construed and for the reasons assigned above it is the opinion of this Court that paragraph (4) of Florida Statutes Section 562.451, is invalid....

...392, 394; Mahood v. Bessemer Properties, Inc., 154 Fla. 710, 18 So.2d 775, 778, 153 A.L.R. 1199. [8] Bradley v. State, 79 Fla. 651, 84 So. 677, 10 A.L.R. 1129; 9 Fla.Jur., Crim. Law, Secs. 17, 18. [9] Brown v. State, 1943, 152 Fla. 853, 13 So.2d 458, 461. [10] Sub-section 562.451(2), supra....

...restrictions; amending Section 562.13, Florida Statutes, prohibiting employment of minors and certain other persons by certain vendors; amending Section 562.23, Florida Statutes, providing for conspiracy to violate beverage law and penalty; amending Section 562.45, Florida Statutes, providing penalties for violating beverage law; amending Sub-section (3) of Section 562.451 Florida Statutes, and adding a new Subsection (4) thereto, providing for penalties for possession of mash, wort, wash or moonshine liquor; amending Subsections (2) (3) and (4) of Section 562.49, Florida Statutes, providing for excepti...

...mending Sections 561.05, 561.20, 561.29, 561.32, 561.34, 561.42, 561.43, 561.44, 561.45, 561.47, 561.54, 562.02, 562.09, 562.10, 562.11, 562.14, Florida Statutes 1941, and Section 9 of Chapter 22669, Laws of Florida, Acts of 1945, also designated as Section 562.45-1, 1945, Cumulative Supplement, Florida Statutes, 1941, All Relating to the Administration, Regulation, Taxing, Transportation, Manufacturing, Distribution and Sales Under the Beverage Laws of the State of Florida and the Enforcement T...

...o affect or impair the power or right of incorporated municipalities to enact ordinances regulating, among other things, the location of the place of business of any licensee under the beverage law within the corporate limits of such municipality (F.S. 562.45), clearly recognized the existence of a practical distinction between the operation and enforcement of the beverage law within the territory of incorporated municipalities as compared to non-incorporated areas....

...Curtis, supra, we determined that an allegation of previous conviction of a lottery law violation was not merely a permissive but a necessary element of an information seeking conviction under Fla. Stat. § 849.09 (4), F.S.A. Our decision rested, in large part, upon the similarity of the statute there involved and Fla.Stat. § 562.45, F.S.A....

...Appellant, defendant below, was found guilty under an Amended Information charging him with a prior conviction and keeping and possessing alcoholic beverages with intent to sell and without a license to sell and dispose of same contrary to F.S. 1965, § 562.12 and § 562.45, F.S.A....

...tes 1941, as a second offender, and that on to-wit, the 17th day of September, 1941, the petitioner was adjudged guilty of the offense charged and sentenced to serve a term of three years in the State Prison. Sentence was imposed under provisions of Section 562.45, Florida Statutes, 1941....

SMITH, Judge. Spadaro asserts that his felony convictions as a recidivist beverage law violator, § 562.45(1), F.S., were vitiated by an insufficient verdict and by the trial court’s action in resubmitting the case for a proper verdict after the jury had been excused from service....

...d separately found that he had previously been convicted of beverage law violations. The jury returned its verdict on that form and the trial court adjudicated Spadaro guilty on all three counts and sentenced him to felony terms on two of them. Sec. 562.45, F.S. Our Supreme Court has held a general verdict of guilty as charged is insufficient to convict a recidivist under the felony provisions of § 562.45, F.S., even when the information charges, as it does here, that the accused was previously convicted for violating beverage laws....

7 a.m. of the following day." In addition, section 562.45(2)(a), Florida Statutes, provides in part:

...defendant is on trial, and the second being the historical fact of the former conviction and the identity of the defendant as the perpetrator, such issues must be expressly determined separately, and the jury should be advised of that fact. F.S.A. §§ 562.45, 568.-02 and 568.05....

...the present violation charged, the defendant should be found not guilty as to the whole charge. “If the jury returns the first verdict suggested above, the entry of a judgment and the imposition of a sentence for a felony would be authorized under section 562.45, supra....

...es may not be transferred by ordinance to the local government code enforcement board). 5 Section 561.705 , Fla. Stat., sets forth the criteria to qualify as a responsible vendor under the "Florida Responsible Vendor Act," Chapter 561 , Fla. Stat. 6 Section 562.45 (1), Fla. Stat. 7 Chapters 561, 562, 563, 564, 565, 567, and 568, Fla. Stat. 8 Section 562.45 (2)(a), Fla. Stat. 9 Section 562.45 (2)(b), Fla. Stat. 10 Section 562.45 (2)(c), Fla....

...rrying, transporting, or possession of unsealed alcoholic beverages, including beer, except in the original package with the seal unbroken, on a semi-public parking lot, public street, or public right-of-way; such an ordinance does not conflict with s. 562.453 , Fla....

...previously been convicted of a violation of the Beverage Law of the State of Florida,” violated § 562.12. 2 That statute classifies as a misdemeanor the sale of alcohol, or maintenance of a place where alcohol is sold, without a license. However, § 562.45 provides that any person who has been convicted of a beverage law violation and is thereafter convicted of a further violation shall be guilty of a third degree felony....

...icense, with intent to sell or dispose of same unlawfully, or who keeps and maintains a place where alcoholic beverages are sold unlawfully, shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083. . Section 562.45(1) provides: 562.45 Penalties for violating Beverage Law.— (1) Any person willfully and knowingly making any false entries in any records required under the Beverage Law or willfully violating any of the provisions of the Beverage Law, concerning the excise tax...

...dant “previously was adjudicated to be guilty in the Criminal Court of Record in and for Polk County, of the offense of Selling Liquor on February 27, 1958,” is sufficiently certain to sustain a judgment for the commission of a felony under Sec. 562.45, Fla.Stat., where defendant had been charged as a second offender; 2....

...or, * * * ” Sec. 568.02, Fla.Stat., 1959, F.S.A., provides: “It is unlawful for anyone to sell, or cause to be sold, any intoxicating liquors, wines or beer in any county that has voted against the sale of intoxicating liquors, wines or beer.” Section 562.45, Fla.Stat., 1959, F.S.A., provides in part: “ * * * that any person who shall have been convicted of a violation of any provision of the beverage law and shall thereafter be convicted of a further violation of the beverage law, shall...

SHANNON, Judge. Appellant appeals from her conviction upon four counts of an information charging her with violation of various sections of Chapter 562 of the Florida Statutes 1955, F.S.A., dealing with alcoholic beverages, including section 562.451 in Count One. Under subsection (1) of Section 562.451, it is provided: “It is unlawful for any person to own or possess within this state any mash, wort, wash or any alcoholic beverage unless the same shall have been made or manufactured in accordance with the regulatory provisions of...

...t in passing judgment upon appellant sentenced her to one year in the state penitentiary as to count one, or as an alternative that she pay a fine of $1,000. Appellant was thus convicted under subsection (1) and was sentenced under subsection (4) of Section 562.451, Florida Statutes 1955, F.S.A....

...Justice Drew, speaking for the Court, said: “For the reasons above noted, the reenactment of this provision in the process of statutory compilation does not bolster the appellant’s position and the trial court properly concluded that, under the rules of construction applicable to penal laws in general, section 562.451 (4) is invalid, and the information predicated thereon must fall.” Needless to say, this holding by the Supreme Court invalidates the sentence as to count one and makes it necessary for the trial court, whose jurisdiction includes misdemeanors as well as certain felonies, to sentence appellant under another section *788 of the chapter relating to alcoholic beverages. Section 562.45, Florida Statutes 1955, F....

under consideration came within the purview of § 562.45 Fla. Statutes 1941, same F.S.A., as to "location

...ed dollars nor more than five thousand dollars, or by both such fine and imprisonment.” This statute is one of numerous statutes providing for enhanced punishment upon a second conviction of related offenses. E. g., Fla.Stats. §§ 831.10, 831.17, 562.45, F.S.A. In a manner similar to that in Fla.Stat. § 562.45, F.S.A., the statute of instant concern renders the commission of a second offense a felony rather than, as would otherwise be the cáse, a misdemeanor. When construing and applying the similar statute, Fla.Stat. § 562.45, F.S.A., the Supreme Court of Florida has determined that the allegation of former conviction, is not only a permissive but a necessary allegation. Smith v. State, 1918, 75 Fla. 468 , 78 So. 530 . See Barnhill v. State, Fla.1949, 41 So.2d 329 . Considering the similarity of Fla.Stat. § 562.45, F.S.A....