Pursuant to the request of Mayor Philip Levine, the attached Ordinance amending the City’s land development regulations is submitted for consideration on First Reading by the City Commission. Specifically, the Ordinance amends the regulations for the MXE (Mixed Use Entertainment) district to terminate the sale and consumption of alcoholic beverages at alcoholic beverage establishments located on Ocean Drive between 5th and 15th Streets, at 2:00 a.m., except for indoor portions of alcoholic beverage establishments that are completely enclosed and located entirely within hotels.
The City’s Authority to Regulate the Hours of Sale of Alcoholic Beverages
The State expressly grants the City the authority to establish its own regulations for the time for sale of alcoholic or intoxicating beverages. Pursuant to Section 562.14, Florida Statutes, no alcoholic beverages may be sold, consumed, served, or permitted to be served or consumed in any place licensed to sell alcoholic beverages between the hours of midnight and 7:00 a.m., unless a municipality elects to establish its own regulations for the time for sale of alcoholic or intoxicating beverages. Section 562.14, Florida Statutes, clearly indicates that the State shall not be responsible for the enforcement of the hours of sale established by municipal ordinance.
In Wednesday Night, Inc. v. City of Fort Lauderdale, 272 So. 2d 502 (Fla. 1972), the Florida Supreme Court upheld Section 562.14, Florida Statutes, holding that the statute, which relates to state, municipal, and county regulations of the time for sale of alcoholic and intoxicating beverages (1) does not contravene Federal and State constitutional guarantees of due process and equal protection of the laws; (2) does not constitute an unlawful delegation of the powers of the legislature; and (3) does not contravene any of the prohibitions against special laws or general laws of local application appearing in Section 11 of Article III of the Florida Constitution.
Florida Courts have held that a municipality exercising its inherent powers may reasonably regulate the sale of intoxicating liquors and, in providing such reasonable regulations, may prohibit sale of such liquors within certain zones. State ex rel. Floyd v. Noel, 169 So. 549 (Fla. 1936). Furthermore, the Florida Attorney General has opined that a municipality may regulate (1) the hours of sale, (2) zoning of locations in which alcoholic beverages may be sold, and (3) the sanitary conditions under which alcoholic beverages may be dispensed or served to the public. Op. Att’y Gen. Fla., 059-73 (1959).
Based upon the foregoing, it is clear that a City may regulate the hours of sale of alcoholic beverages at sidewalk cafes, provided the regulations are not exercised in an arbitrary or discriminatory manner, and are grounded upon some reasonable basis of classification with reference to the subject matter to be regulated. Makos v. Prince, 64 So. 2d 670 (1953). In regulating the sale of alcoholic beverages, the City may create regulations that establish separate zones and the Courts do not require that regulation of hours be uniform throughout the jurisdictional limits. Id. The Florida Attorney General has opined that different hours may be provided for in a municipal ordinance, provided there is reasonable relation to the health, safety, and morals of the community. Op. Att’y Gen. Fla., p. 497 (1950).
To be clear, a business is neither entitled to “grandfathered” status nor entitled to enjoin enforcement of an ordinance regulating the times during which liquor may be sold. Village of North Palm Beach v. S & H Foster’s Inc., 80 So. 3d 433 (Fla. 4th DCA 2012); Other Place of Miami, Inc. v. City of Hialeah Gardens, 353 So. 2d 861 (Fla. 3d DCA 1977). Further, the courts have upheld municipal ordinances against claims for injunctive relief against municipal ordinances regulating the time at which alcoholic beverages may be sold, because municipalities have the statutory authority to set times for sale of alcoholic beverages. Id.; Playpen S., Inc. v. City of Oakland Park, 396 So. 2d 830 (Fla. 4th DCA 1981). Lastly, Florida Courts have ruled that hours of operation are not a property right. S. Daytona Rests., Inc. v. City of S. Daytona, 186 So. 2d 78 (Fla. 1st DCA 1966).