Orange County v. Costco Wholesale Corp.

823 So. 2d 732, 27 Fla. L. Weekly Supp. 608, 2002 Fla. LEXIS 1394, 2002 WL 1378580
CourtSupreme Court of Florida
DecidedJune 27, 2002
DocketSC01-382
StatusPublished
Cited by8 cases

This text of 823 So. 2d 732 (Orange County v. Costco Wholesale Corp.) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Orange County v. Costco Wholesale Corp., 823 So. 2d 732, 27 Fla. L. Weekly Supp. 608, 2002 Fla. LEXIS 1394, 2002 WL 1378580 (Fla. 2002).

Opinion

823 So.2d 732 (2002)

ORANGE COUNTY, Petitioner,
v.
COSTCO WHOLESALE CORPORATION, Respondent.

No. SC01-382.

Supreme Court of Florida.

June 27, 2002.

*733 James F. Page, Jr., and G. Robertson Dilg of Gray, Harris & Robinson, P.A., Orlando, FL, for Petitioner.

Scott A. Glass of Shutts & Bowen, LLP, Orlando, Florida; and Barry Richard of Greenberg, Traurig, P.A., Tallahassee, FL, for Respondent.

Frank A. Shepherd, Miami, FL, for Pacific Legal Foundation, Amicus Curiae.

William H. Adams, III, Jacksonville, FL, Amicus Curiae.

LEWIS, J.

We have for review Costco Wholesale Corp. v. Orange County, 780 So.2d 198 (Fla. 5th DCA 2001), which expressly and directly conflicts with our decision in Glackman v. City of Miami Beach, 51 So.2d 294 (Fla.1951). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

MATERIAL FACTS

In this case, the respondent, Costco Wholesale Corporation ("Costco"), constructed two membership warehouse clubs in unincorporated Orange County, Florida. It then sought to transfer two of its package store liquor licenses to these new locations, both of which are located less than 5000 feet from existing package stores.[1]*734 However, section 38-1414(b) of the Orange County Code,[2] which applies to properties located in unincorporated Orange County, clearly prohibits any new or relocated package liquor sale vendor from opening or starting a package liquor sales business within 5000 feet of an established, licensed package liquor sale vendor's place of business.[3] Indeed, except for a hiatus which occurred sometime between 1964 and 1966, this 5000 foot distance requirement has been in effect in Orange County since 1956. Section 38-1414 was first adopted by the Orange County Board of County Commissioners (the "Board" or the "BCC") in 1956, at which time the Zoning Commission amended its regulations by designating "County Beverage Zones," and prohibiting any new package good vendor from opening a new establishment within such zones. The preamble to the resolution stated its purpose was "to prevent the further scattering of business, trade and industrial uses within the unincorporated portions of the (county) to the detriment of homes and uses of higher character." This continued in effect until sometime after 1964, when the 5000 foot separation distance for package sales vendors was repealed. Subsequently, in 1966, the Board adopted a resolution to once again impose the 5000 foot separation distance on February 14, 1966, which provision was eventually codified as section 38-1414(b). In 1992 and 1993, the BCC amended section 38-1414(b) by adopting Ordinance No. 92-7 and Ordinance No. 93-01, respectively, resulting in section 38-1414(b) of the Orange County Code as it currently exists.

To implement the license transfers despite this restriction, Costco applied for a variance from Orange County, which application was denied.[4] After denial of the *735 variance requests, Costco filed an action seeking declaratory and injunctive relief, asserting that because the distance separation ordinance was arbitrary and capricious, it should be declared unconstitutional. The parties stipulated that the only issue of law to be determined was "whether the County's imposition of a 5,000 foot separation distance between package goods stores is a constitutional exercise of the police powers." 780 So.2d at 201.

At trial, Edward John Williams, who had been the director of the Orange County Planning Department at the time all of the county ordinances had been readopted and consolidated into one code, testified that the purpose of the ordinance was to provide a balance between the desired use and the desirability of protecting residential districts. Williams noted that the 5000-foot distance separation requirement represents approximately a one-mile radius, which is "typically the distance for a primary market for a store or facility of this nature." He observed that this distance provides residents enough opportunity to use such facilities without allowing such businesses to become so dense that they, along with activities they generate, become a problem. He noted that Orange County is far different from other jurisdictions in that it has "more commercial acreage per thousand population than just about any other jurisdiction in the country." At the time the ordinance was reenacted in 1992, the County had over 8000 acres zoned commercial where package liquor stores could be located, with an additional 7000 acres projected by the year 2010. According to Williams, "there were more than enough opportunities to accommodate and provide reasonable use" for package liquor stores. For that reason, in Williams' experience, the ordinance was not overly restrictive.

According to Williams, the purpose of section 38-1414 was not to protect the economic interests of package liquor store owners, but to have a reasonable buffer and distance between their businesses, and to respect both residential and business considerations. He had observed that the problem with aggregating such businesses was not necessarily an evil inherent in the stores themselves, but primarily rested in the secondary effects associated with such business operations. He stated that allowing such stores in close proximity to each other "lowers residential property values and creates an extraordinary amount of traffic in and about those residential areas." He opined that, because there are certain problematic activities (such as drinking in the parking lots, fights, and driving while intoxicated) typically associated with package stores, "[s]preading them out while allowing sufficient opportunity to accommodate the need for them was [the County's] primary objective." The regulatory strategy reflected in the distance restriction "seemed to minimize the adverse impacts associated with such uses, while allowing them to congregate seemed to create an impact greater than the number of uses."

The parties stipulated that there are currently 65 licenses (designated as 3PS) specifically for package liquor stores issued in unincorporated Orange County. There are currently 149 businesses within the unincorporated areas which hold licenses designated as 4COP which permits the sale of package alcoholic beverages. Of these businesses, only about twelve are unable to offer package sales because of the 5000-foot distance separation requirement. Mitch Gordon, Acting Zoning Director of Orange County, testified by affidavit: "At no time have I been told that there is an insufficient supply of package stores in Orange County or that they are *736 located in areas that inconvenienced the shopping public."

The trial court judicially noticed that alcohol is a harmful and heavily regulated product. It reasoned that because Orange County could ban alcoholic sales completely, the county's less restrictive regulation was substantially related to a legitimate government goal. Id. at 202.

On appeal, the Fifth District strongly disagreed with this rationale, stating:

While the County may have the power to ban alcoholic products completely, the ban, or any ban for that manner, must have a reasonable relationship to public health, morals and welfare. When the lesser regulation impacts constitutionally-protected rights, the government still carries the burden of demonstrating the reasonable relationship. In this case, the record below fails to meet that burden.

Id. at 202-03.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Kuvin v. City of Coral Gables
45 So. 3d 859 (District Court of Appeal of Florida, 2010)
Taylor v. Town of Plaistow
872 A.2d 769 (Supreme Court of New Hampshire, 2005)

Cite This Page — Counsel Stack

Bluebook (online)
823 So. 2d 732, 27 Fla. L. Weekly Supp. 608, 2002 Fla. LEXIS 1394, 2002 WL 1378580, Counsel Stack Legal Research, https://law.counselstack.com/opinion/orange-county-v-costco-wholesale-corp-fla-2002.