Rivergate Rest. Corp. v. METRO. DADE CTY.

369 So. 2d 679
CourtDistrict Court of Appeal of Florida
DecidedApril 17, 1979
Docket79-274
StatusPublished
Cited by14 cases

This text of 369 So. 2d 679 (Rivergate Rest. Corp. v. METRO. DADE CTY.) 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
Rivergate Rest. Corp. v. METRO. DADE CTY., 369 So. 2d 679 (Fla. Ct. App. 1979).

Opinion

369 So.2d 679 (1979)

RIVERGATE RESTAURANT CORPORATION, d/b/a Cye's Rivergate Restaurant, a Florida Corporation, Appellant,
v.
METROPOLITAN DADE COUNTY, Florida, a Political Subdivision of the State of Florida, Appellee.

No. 79-274.

District Court of Appeal of Florida, Third District.

April 17, 1979.

*680 Lee, Murphy & Coe and Thomas E. Lee, Jr., Miami, for appellant.

Stuart L. Simon, County Atty. and Robert A. Ginsburg, Asst. County Atty., for appellee.

Before PEARSON and KEHOE, JJ., and EZELL, BOYCE F., JR., (Ret.), Associate Judge.

EZELL, Associate Judge.

Rivergate Restaurant Corporation, d/b/a Cye's Rivergate Restaurant, appeals from a final judgment which, inter alia, denied its application for an injunction restraining Metropolitan Dade County from holding a special referendum election on a certain proposed ordinance to the Code of Metropolitan Dade County designated as the "Clean Indoor Air" ordinance. Because the referendum election is scheduled for May 8, 1979, this court has expedited the briefing schedule provided in the Florida Rules of Appellate Procedure and ordered early oral argument of this cause. We now hold that the court below properly denied the appellant's application for injunctive relief but erred when it passed upon the constitutionality of a portion of the proposed ordinance. The circuit court was restricted to a determination of the validity of the proposal in its entirety; once the proposed ordinance was found not to be invalid in its entirety, the circuit court's judicial function terminated. Accordingly, we modify the final judgment by reinstating the language stricken from the proposed ordinance in order that it may be submitted to the electorate in its original form.

On January 9, 1979 the County Commission voted to submit the proposed "Clean Indoor Air" ordinance to the electors at a special referendum election scheduled for May 8, 1979. This action was taken following presentation to the commission of an initiative petition which proposed the ordinance at issue regulating smoking in enclosed public places. The commissioners chose to submit the proposal to the electors rather than adopt the ordinance as initially submitted to them in the petition.[1]

The appellant owns and operates a restaurant in Dade County which is licensed by the State of Florida to sell alcoholic beverages and which would be affected should the initiative petition be adopted. Appellant brought this suit against the county seeking a judgment declaring the proposal regulating smoking in enclosed public places in this county to be unconstitutional. In addition, appellant sought injunctive relief restraining the county from submitting the proposed ordinance to the electorate at any special or general election, and also sought to enjoin the County Commission from reconsidering its adoption without the necessity of voter ratification at a special or general election.

The ordinance would, if adopted, prohibit smoking (with certain specified exceptions) in all enclosed public places, places of employment, *681 educational and health facilities located in all unincorporated and incorporated areas of Dade County. That portion of the ordinance particularly relevant to appellant's business (Section 5) would require each restaurant or cafeteria in the county to establish non-smoking sections in its dining area comprising at least 50 percent of its available seating. This section reads as follows:

"Section 5. Restaurants and Cafeterias.
"(a) Every restaurant and cafeteria shall establish a non-smoking section in its dining area in which signs or placards referred to in Section 7(b) shall be posted or placed in at least 50 percent of its available seating, subject to change if the needs of the owner or manager so require. Any such section shall be one contiguous area. Any other provisions of the Ordinance notwithstanding, smoking is unlawful in any food service line in a cafeteria.
"(b) A conspicuous and clearly legible sign shall be posted at every public entrance to a restaurant or cafeteria indicating the non-smoking section of the dining area.
"(c) It is the intent of the people of Dade County, Florida for restaurant and cafeteria owners and managers to provide seating in a non-smoking section for any patron who desires such seating and to encourage restaurant and cafeteria owners and managers to use presently existing physical barriers and ventilation systems to minimize the permeation of smoke from adjacent smoking sections into non-smoking sections."

The appellant attacked the ordinance in general and this section in particular as being unconstitutional on its face for several reasons which we need not discuss in light of our decision herein. After an accelerated final hearing, at which no testimony was taken, the circuit court entered a final judgment denying the appellant's application for injunctive relief and ruled that the county had the authority to regulate smoking in restaurants licensed under the state beverage law.[2] The circuit court also struck a phrase found in the proposed ordinance as unconstitutionally vague.[3]

Appellant now appeals from the final judgment contending that the county had no authority to regulate smoking in restaurants licensed under the state beverage laws since the state has preempted the area in which the ordinance has its primary effect. We need not reach this issue since we hold that the circuit court was correct in denying injunctive relief and refusing to restrain the referendum election, although we reach our conclusion for reasons different *682 from those expressed in the final judgment.

At the outset we emphasize that we specifically refrain from any comment upon the wisdom or the merits of the proposed ordinance. That is a matter for the electorate, not the courts, to decide. Our opinion deals only with the propriety of injunctive relief under the circumstances presented below. Upon review, we hold that the circuit court had the authority to enjoin an election in a proper case, but rightly refused to do so in this instance.

The circuit court had the authority to entertain a complaint attacking the constitutionality of the proposed "Clean Indoor Air" ordinance under the law as set forth in Dade County v. Dade County League of Municipalities, 104 So.2d 512 (Fla. 1958). In that case, the Supreme Court, speaking through Justice Thornal, held that the courts had the authority to consider the constitutionality of a proposed municipal autonomy amendment in advance of an election called to enable the electorate to express its approval or disapproval of the amendment, and to enjoin the election if the proposed amendment was found to be unconstitutional in its entirety.

The facts of that case are similar to those which developed below: As a result of an initiative petition, the Dade County Commission called for a special referendum election to submit a proposed amendment to the electorate that would amend the Home Rule Charter for Metropolitan Dade County. This amendment would, if adopted, reserve certain powers to the municipalities located in the county. It provided that the municipalities could exercise all powers granted to them by their charters or by statute, notwithstanding anything to the contrary in the county Home Rule Charter.

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Bluebook (online)
369 So. 2d 679, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rivergate-rest-corp-v-metro-dade-cty-fladistctapp-1979.