Division of Alcoholic Beverages & Tobacco v. Ashbury

460 So. 2d 1026, 10 Fla. L. Weekly 87, 1984 Fla. App. LEXIS 16218

Opinion

HERSEY, Judge.

Appealed is a non-final order enjoining appellant, the Division of Alcoholic Beverages and Tobacco, from enforcing any adverse administrative decision against appellee, Ashbury, pending review by the circuit court of the constitutional issues raised by a first amended complaint. We reverse on two grounds. First, the allegations and prayer of the complaint are directed to the constitutionality “as applied” of the statute in question rather than to its facial constitutionality. Such an inquiry is properly directed to the district court of appeal following final administrative action, not to the circuit court midstream of the administrative process. Key Haven v. Board of Trustees of the Internal Improvement Fund, 427 So.2d 153 (Fla.1982); Solimena v. State Department of Business Regulation, 402 So.2d 1240 (Fla. 3d DCA 1981); Rice v. Department of Health and Rehabilitative Services, 386 So.2d 844 (Fla. 1st DCA 1980). Second, the complaint is woefully inadequate to support injunc-tive relief. The necessary allegations are discussed in such cases as Department of Business Regulation v. Provende, Inc., 399 So.2d 1038 (Fla. 3d DCA 1981) and Contemporary Interiors v. Four Marks, Inc., 384 So.2d 734 (Fla. 4th DCA 1980).

REVERSED.

ANSTEAD, C.J., and DOWNEY, J., concur.