Department of Business Regulation, Division of Alcoholic Beverages & Tobacco v. Carl & Mike, Inc.

425 So. 2d 190, 1983 Fla. App. LEXIS 18508

• Court: District Court of Appeal of Florida
• Decided: January 18, 1983
• Docket: No. 81-2472
• Status: Published

Opinion

PER CURIAM.

This is an interlocutory appeal from a non-final order entered below granting a preliminary injunction against the enforcement of a certain administrative emergency order entered by the defendant Department of Business Regulation, Division of Alcoholic Beverages & Tobacco. The emergency order temporarily suspends, pending a full hearing, the plaintiff Carl & Mike, Inc.’s liquor license based on a showing of extensive illegal drug sale activity on the plaintiff’s licensed bar premises. Upon a prior direct appeal here from that order, this court denied the plaintiff’s application for a stay pending appeal. Several days after this court’s ruling on the application for stay, the subject lawsuit was filed below seeking virtually the same injunctive relief although based on the newly raised ground that Section 120.60(7), Florida Statutes (1982), authorizing the emergency order of suspension, was unconstitutional. We conclude that in view of this court’s prior ruling denying an application for stay, the circuit court may not now overrule, in effect, this court’s prior order denying a stay by entertaining the instant lawsuit and entering the subject preliminary injunction. DuBusk v. Smith, 390 So.2d 327 (Fla.1980).

We recognize that no constitutional challenges were raised by the plaintiff Carl & Mike, Inc. in the application for a stay before this court while certain constitutional challenges are now made in the suit below. That cannot, however, change the result in this case. The plaintiff Carl & Mike, Inc. was not precluded from raising the appropriate constitutional challenges to Section 120.60(7), Florida Statutes (1982), in the appeal before this court and in the corresponding application for stay. Rice v. Dept. of Health & Rehabilitative Services, 386 So.2d 844 (Fla. 1st DCA 1980). It cannot now seek to overrule our decision on the application for stay by filing the instant lawsuit below with its newly-raised constitutional grounds. Key Haven Associated Enterprises, Inc. v. Board of Trustees of the Internal Improvement Trust Fund, 427 So.2d 153 (Fla.1982).

The preliminary injunction under review is, accordingly, reversed and the cause is remanded to the trial court with directions to dismiss the instant lawsuit.