Division of Alcoholic Beverages & Tobacco v. Ashbury

District Court of Appeal of Florida

Division of Alcoholic Beverages & Tobacco v. Ashbury

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

CourtDistrict Court of Appeal of Florida

DecidedDecember 28, 1984

DocketNo. 84-837

StatusPublished

This text of 460 So. 2d 1026 (Division of Alcoholic Beverages & Tobacco v. Ashbury) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Division of Alcoholic Beverages & Tobacco v. Ashbury, 460 So. 2d 1026, 10 Fla. L. Weekly 87, 1984 Fla. App. LEXIS 16218 (Fla. Ct. App. 1984).

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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 [1027]*1027DCA 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.

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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 [1027]*1027DCA 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.

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460 So. 2d 1026, 10 Fla. L. Weekly 87, 1984 Fla. App. LEXIS 16218, Counsel Stack Legal Research, https://law.counselstack.com/opinion/division-of-alcoholic-beverages-tobacco-v-ashbury-fladistctapp-1984.

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