STATE OF FLORIDA EX REL. DAVE ALPER
v.
C. W. TOMLINSON, AS CITY CLERK AND LICENSE COLLECTOR FOR THE CITY OF MIAMI BEACH, FLORIDA, AND CITY OF MIAMI BEACH
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The court held that the relator failed to demonstrate a clear legal right to the performance of the act sought to be coerced, thus mandamus was not the proper remedy.
Appellant applied for a liquor store license, which was denied. He sought a writ of mandamus to compel the issuance of the license or show cause for r…
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Appellant applied to appellees for a license to operate a liquor store on 41st Street in the City of Miami Beach. His application being denied, he thereupon procured an alternative writ of mandamus requiring appellees to issue the license to show cause why they refused to do so. The trial court granted a motion to quash the alternative writ and entered judgment for respondent. This appeal was prosecuted.
The parties are at variance as to the question presented. We state it as follows: Must an ordinance regulating the number of liquor stores that may be licensed in the City of Miami Beach be enacted with notice and opportunity to be heard, as required by Section 176.05, Florida Statutes 1941?
Appellant contends that this question should be answered in the affirmative, but he does not bring up a copy of the ordinance, and, so far as the record discloses, it may have been enacted with all the formality of notice and.advertisement required by Chapter 19536, Acts of 1939 (Chapter'176, Florida Statutes 1941), and Chapter 9837, Acts of 1923, that he contends for.
The question was also raised as to whether or not mandamus was the proper remedy in a case of this kind. The remedy by mandamus is not static. Undoubtedly, complexes may arise now to actuate it that were not thought of in a more primitive society. From what has been said, it is clear that relator has not shown a clear legal right to performance *473of the act he seeks to have coerced. State v. Gray, 92 Fla. 1123, 111 So. 242.
Affirmed.
CHAPMAN, C. J., BUFORD, THOMAS, ADAMS and SEBRING, JJ., concur.
BROWN, J., not participating.
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Citator
Cited By
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State v. City OF Miami, 158 Fla. 26 (Fla. 1946)…before us for construction. We cannot take judicial cognizance of a municipal ordinance. See Stephens v. Anderson, 75 Fla. 575, 79 So. 205 and cases there cited. Therefore, the judgment of the Circuit Court must be affirmed. See Alper v. Tomlinson, 157 Fla. 471, 26 So. (2nd) 338. Without the ordinance being pleaded in the court below no clear legal right to the relief prayed could be shown, and showing of clear legal right to the relief is essential to entitle one to prevail in mandamus. See State ex rel.…
Authorities Cited
- State v. DeWitt T. Gray, 92 Fla. 1123 (Fla. 1927)