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01-15-1945 Special Meeting Z MINUTES OF SPECIAL MEETING OF MIAMI SHORES VILLAGE COUNCIL JANUARY 15; ,1945 On January 15, 1945 a Special Meeting was held. Mr. Arnold acted as Chairman, in the absence of Mayor Oscar Dooly. Other Councilmen present, were; Mr. Walter G. Earnest, Mr. John G. Thompson and, Mr. M. E. Reynolds. Attorney R. E. Sappenfield also attended. Mr. Thompson moved the adoption of Ordinance No. 137, as follows : "Based upon the information set forth in the written opinion by the Village Attorney (attached to and made a part hereof) , and the fact that pre- viously, mandamus suit was brought and an order entered requiring Miami Shores Village to issue a liquor license, and believing it is to the best interests of Miami Shores Village to prevent what appears on its face, to be certain litigation and, although opposed to the granting of licenses for liquor stores in Miami Shores Village." The motion was seconded by Mr. Earnest, who said, "I con- cur in Mr. Thompson's motion and while I will second it, I do so reluctantly." Motion unanimously carried. Meeting Adjourned. illage Managget and Clerk Approved: 121 -rar�r� LAW OFFICES KURTZ, REED, SAPPENFIELD & COOPER E.B.KURTZ SECURITY BUILDING R.E.SAPPENFIELD MIAMI 32, FLORIDA R.M.COOPER L.S.KURTZ January 11, 1945 C. Lawton McCall, Village Manager Miami Shores Village, 9545 NE 2nd Avenue, Miami, Florida. Re: Troy Hewitt Liquor License Application Dear Mr. McCall: My investigation of the situation relative to the recent litigation involving the City of Miami and its ordinance covering the issuance of liquor licenses discloses the following. 1. In December, 19", the Supreme Court of Florida, in a case styled William D. Singer, et al, vs. E. W. Scarborough, as Di- rector of the State Beverage Department, ruled that the State Beverage Act permits the sale of intoxicating beverages under rigid regulation but does not limit the number of licenses that may be issued nor give �F, municipalities general power to regulate. The Act does vest in munici- palities power to fix by ordinance hours of sale, location, and to pre- scribe certain sanitary regulations under which intoxicating beverages may be sold. The Court therefore ruled that the State Beverage Director could not withhold the issuance of a license because a permit had not been secured from the City of Miami as provided by its drdinance No. 2161. In its opinion the Court commented upon the fact that the Miami ordinance had been declared invalid by the Circuit Court of Dade County and no appeal had been taken. Mr. J. W. Watson, Jr., Miami City Attorney, advised me yesterday that he was in the process of taking an appeal from the case in which the ordinance was declared invalid, upon which I will comment below. 2. In the case of Paul Kichinko vs. City of Miami, Chancery case No. 85736, lately pending before Circuit Judge Williams, a final decree was entered in December, 1944, providing that Ordinance No. 2161 of the City of Miami in so far as it attempts to exercise any power over those who obtained State and County licenses to engage in the business defined in the State Beverage Law, is invalid except those provisions of the ordinance which, (1) Regulate the hours of business, (2) Regulate the location of places of business, and P (3) Prescribe sanitary regulations for such places of business. C. Lawton McCall -2- January 11, 1945 As stated above, the City of Miami is in the process of appealing from this decree. From the foregoing information it appears to be reasonably certain that the decree of Judge Williams will be upheld by the Supreme Court of Florida on appeal, in which event it naturally follows that the provisions of Section 6 and Section 7 of Ordinance No. 112 of Miami Shores Village, restricting the number of licenses to each 1900 persons' or fractional part thereof within Miami Shores Village, are invalid. Section 8 of the Village Ordinance provides in effect that liquor establishments shall not be licensed to engage in business with- in 650 feet of each other. Relying upon your report that the proposed place of business of Mr. Hewitt would be within 650 feet of the exist- ing liquor store on Northeast 2nd Avenue, it is my opinion that it would be unlawful to issue a license to Mr. Fewitt because to do so would violate the provisions of Section 8 of the ordinance. So far as I know the matter of location of licensed liquor establishments as restricted by `a municipality has not been ruled upon by the Supreme Court of Florida. I have been informed by Mr. Watson, the Miami City Attorney, that Mr. Hewitt can probably obtain his liquor license from the County upon the payment to it of the entire license fee, of which the Village could not thereafter receive any part. In the event Mr. Hewitt sees fit to take this action and open his place of business at the address designated in his Village application, which would be within 650 feet of the existing liquor store on that street, without a Village license, the proceedure would appear to be that he would be subject to arrest for violation of Section 2, which provides that no person shall engage in the liquor business in the Village without first procuring a Village license therefor. After his arrest the validity of the Village Ordinance could probably be tested under habaes corpus proceedings and the losing party would no doubt be faced with the necessity and expense of prosecuting an appeal to the Supreme Court of Florida. There is some doubt in my mind about the reasonableness of the provisions of Section 8 of the Ordinance which prescribes that liquor establishments shall not be licensed within 650 feet of each other. In order to uphold this provision of the ordinance the courts will first have to rule that the restriction of spacing liquor establishments at a specified distance from each other is proper, and then they will have to t rule that the specified 650 feet is a reasonable distance. I might say at this point that the distance specified in the City of Miami Ordinance is 300 feet. KURTZ, REED, SAPPENFIELD & COOPER Y.p � C. Lawton McCall -3- January 11, 1945 As an alternative to denying the issuance of a license under the Hewitt application the Council might amend Section 8 of the Village Ordinance and reduce the distance of 650 feet to a figure which is less than the distance from the existing liquor store on Northeast 2nd Avenue to the place of business Mr. Hewitt proposes to use. It could then issue a Village license to Mr. Hewitt and properly collect from him its portion of the license fee, to crit: $562.50. The thought advanced by you to me should also be given some, consideration by the Council; that is, the consideration of the proposed extension of the business zone one block north and one block south from the existing boundaries. In the event the business zone is so enlarged and Section 8 remains unchanged, it would be possible to legally establish other liquor stores on Northeast 2nd Avenue, notwithstanding the 650-foot restriction. The proposed enlargement of the business zone on Northeast 2nd Avenue will therefore automatically defeat the original purpose in es- tablishing the distance between liquor establishments at 650 feet, the design and purpose of which was to prevent the location of more than one liquor store on Northeast 2nd Avenue. »� As I recall the distances which ,you quoted to me, if the busi- ness zone is enlarged and the 650-footprovision is unchanged, it would be possible to locate two additional liquor stores on Northeast 2nd Avenue north of the existing store butnone could be located South of the existing store. If the distance is reduced from 650 feet to 525 feet to permit the issuance of the Hewitt license and the business zone is en- larged, an additional store could be located south of the existing store and two additional stores could be located north of the Hewitt store, permitting a total of five stores.on Northeast 2nd Avenue with the busi- ness district extending from 94th Street to 100th Street. V truly yours, RES/ds cc - John G. Thompson, lst Nat'l Bank Bldg. Walter G. Earnest, 163 NE 24th Street. M. B. Arnold, Ingraham Bldg. Oscar E. Dooly, Jr., Ingraham Bldg,, M. E. Reynolds, Ingraham Bldg. by KURTZ. REED. SAPPENFIELD & COOPER