Hillsborough County v. FLORIDA REST. ASS'N

603 So. 2d 587, 1992 WL 164090
CourtDistrict Court of Appeal of Florida
DecidedJuly 17, 1992
Docket91-02077
StatusPublished
Cited by22 cases

This text of 603 So. 2d 587 (Hillsborough County v. FLORIDA REST. ASS'N) 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.

Bluebook
Hillsborough County v. FLORIDA REST. ASS'N, 603 So. 2d 587, 1992 WL 164090 (Fla. Ct. App. 1992).

Opinion

603 So.2d 587 (1992)

HILLSBOROUGH County, a political subdivision of the State of Florida, Appellant,
v.
FLORIDA RESTAURANT ASSOCIATION, INC., Appellee.

No. 91-02077.

District Court of Appeal of Florida, Second District.

July 17, 1992.

*588 Christine M. Beck, Asst. Co. Atty., Tampa, for appellant.

Kenneth A. Hoffman and Stephen W. Metz of Messer, Vickers, Caparello, Madsen, Lewis, Goldman & Metz, P.A., Tallahassee, for appellee.

DANAHY, Acting Chief Judge.

The Florida Restaurant Association [the Association] sued Hillsborough County, a chartered County [the County], seeking declaratory and injunctive relief after the County enacted an ordinance requiring that a health warning sign be posted in certain establishments that serve alcohol. After both parties moved for summary judgment, the trial court entered final summary judgment in favor of the Association. In its judgment, the trial court declared the ordinance unconstitutional and permanently enjoined its enforcement. The County appeals; we reverse.

The ordinance at issue is No. 91-11 enacted by the County's governing body, the Board of County Commissioners, on February 2, 1991, and titled "Hillsborough County Alcoholic Beverage Public Awareness Ordinance." The ordinance requires that all vendors of alcoholic beverages in the county post a sign, in a size not less than 8 1/2 X 11 inches, conspicuously on their premises. The following words are required to be on the sign:

"HEALTH WARNING"
ALCOHOL IN BEER, WINE SPIRITS AND LIQUOR, ALONE OR IN COMBINATION WITH OTHER NON-ALCOHOLIC INGREDIENTS CAN CAUSE
BIRTH DEFECTS ADDICTION INTOXICATION

REDUCE YOUR RISKS:

DO NOT DRINK DURING PREGNANCY.
DO NOT DRINK BEFORE DRIVING OR OPERATING MACHINERY.
DO NOT MIX ALCOHOL WITH OTHER DRUGS, BOTH PRESCRIPTION AND NON-PRESCRIPTION. IT CAN BE FATAL.

Failure to post the sign could result in criminal prosecution.

In the trial court the Association did not dispute that consumption of alcohol carries with it the risks of which the sign warns but argued merely that the County acted ultra vires in enacting the ordinance given the state's pervasive regulatory scheme in the preparation, service, or sale of alcoholic beverages contained in chapters 561 and 562 as well as the regulation of food service establishments in chapter 381. Even though the Association recognized that the County acted pursuant to its police power to protect the public health, safety, welfare, or morals of the community, it successfully argued that the field had been either expressly or impliedly preempted to the state by this pervasive regulatory *589 scheme. Finally, the Association successfully contended that the County acted contrary to the local government article of our constitution when it enacted an ordinance which is inconsistent with general law.

In this appeal the County raises three issues: (1) that the Association lacks standing to seek relief, (2) that there has been no implied or express preemption to the state, and (3) that the ordinance is not inconsistent with general law. The County contends that the subject matter of the ordinance is public health information. Therefore, the subject matter of the ordinance has not been preempted by the state's regulatory scheme for the manufacture, packaging, distribution, and sale of alcohol; and, further, the ordinance is not inconsistent with any general law; thus it is constitutional.

STANDING

The Association, which has 2,766 members statewide, 154 of which operate in Hillsborough County, brought the suit on behalf of the thirty-seven of that number who serve alcoholic beverages on the premises of their public food establishments and who, accordingly, were affected by the ordinance.

We agree with the trial court on this threshold issue and find that the Association has standing to contest the validity of the ordinance. That is so because the Association has met the three-prong test which confers standing to an association to sue for the benefit of its members who are more directly affected by the governmental action than the association itself. Further, we find that the three-prong test[1] for association standing in the context of administrative proceedings, Florida Home Builders Ass'n v. Dep't of Labor & Employment Sec., 412 So.2d 351 (Fla. 1982), is equally applicable to the case before us. See also Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977); Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975); City of Lynn Haven v. Bay County Council of Registered Architects, Inc., 528 So.2d 1244 (Fla. 1st DCA 1988); Florida Ass'n of Counties, Inc. v. Dep't of Admin., Div. of Retirement, 580 So.2d 641 (Fla. 1st DCA 1991), aff'd, 595 So.2d 42 (Fla. 1992). Although the County argues that only thirty-seven out of the total 2,766 members of the Association are directly affected by the ordinance, it neglects to note that these thirty-seven represent forty-one percent of the total Hillsborough County membership in the Association. We do not find that a specific number or percentage is required in order to meet the standing requirement of Florida Home Builders but only that a substantial number of the Association's members have been affected in the instant case. Looking at the remaining two prongs of the test for association standing, it is clear the Association has satisfied those requirements as well.

EXPRESS PREEMPTION

Turning to the substantive issue of preemption to the state of any regulation touching on the sale of alcohol within food service establishments, we agree with the County that the state regulatory scheme is not so pervasive that the County has no room to act under its police powers. There is express preemption language in *590 section 381.061(9), Florida Statutes (1989),[2] but this subsection merely enables the Department of Health and Rehabilitative Services to adopt rules for the training of managers in food safety protection standards when they are responsible for the storage, preparation, display, and serving of foods to the public. To find a subject matter expressly preempted to the state, the express preemption language must be a specific statement; express preemption cannot be implied or inferred. Board of Trustees v. Dulje, 453 So.2d 177 (Fla. 2d DCA 1984).

The preemption language of section 381.061(9) provides:

The regulation of food safety protection standards for any required training and testing of food service establishment personnel is hereby preempted to the state. The ranking of food service establishments is also preempted to the state, provided, however, that any local ordinances establishing a ranking system in existence prior to October 1, 1988, shall remain in effect. The regulation and inspection of food service establishments licensed by chapter 509 and regulation of food safety protection standards for required training and testing of food service establishment personnel are preempted to the state.

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Cite This Page — Counsel Stack

Bluebook (online)
603 So. 2d 587, 1992 WL 164090, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hillsborough-county-v-florida-rest-assn-fladistctapp-1992.