BD. OF CTY, COMMISSIONERS, DADE CTY. v. BOSWELL, 167 So.2d 866 (Fla. 1964)

No. 33046.Supreme Court of Florida.
October 7, 1964.

Appeal from the Circuit Court for Dade County, Lucien C. Proby, Jr., J.

Darrey A. Davis, Miami, for appellant.

Pruitt Pruitt, Miami, for appellee.

Harold G. Featherstone and Seaman, Wolfe Hollahan, Coral Gables, for intervening appellees.

DREW, Chief Justice.

The appellant controverts a decree of the Circuit Court for Dade County, holding County Ordinance No. 63-1,[1] which prohibits fortune-telling and similar occupations, to be “in contravention and in violation of the provisions of the Amendment to the State Constitution authorizing the creation of the Home Rule Charter for the County of Dade.”

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The applicable portion of the Constitution referred to is Article VIII, Section 11(5) and (6), F.S.A. This provision preserves the legislative power to enact general laws relating to Dade County, and provides that no ordinance shall “conflict with * * * any such applicable general law except as expressly authorized herein.” The sole express authorization relied on by appellant is the general provision of the constitutional amendment, subsection (1) (b), for power “to pass ordinances relating to the affairs, property and government of Dade County.”

The decision of the court, upon complaint and answer in this proceeding for declaratory relief, was that the above constitutional provision against ordinances which “conflict with” general laws prohibits the enactment of an ordinance which outlaws occupations already regulated by F.S. Sections 205.41 and 205.411, F.S.A.[2] We conclude that the decree, by its disposition of the cause and issues before the court effectively defined the meaning and effect of the constitutional proscription in these circumstances so as to give rise to the appellate remedy in this court.[3]

The general statutes, supra, not only impose a license tax on the occupations in question, but also prescribe the conditions which must be fulfilled before a permit is issued. The authority of the county officers in the administration of the act is to “consider the application and the report of the clerk and order the permit either issued or denied. * * *” We are not persuaded by appellant’s contention that this vests in the Board of County Commissioners absolute discretion to deny all permits with or without the ordinance here involved.

The applicable general law, supra, declares that an order denying or issuing such permit shall be based on a consideration of the conditions specified, and does not in terms permit contrary local provisions.[4] The decree of the court below correctly decides that the controverted ordinance, prohibiting the issuance of any such permit without regard to the statutory conditions, was in conflict with the general law and therefore invalid in the absence of express reservation under the home rule amendment. No other issue as to the scope

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or validity of the ordinance is presented or determined in this proceeding.

Affirmed.

ROBERTS and CALDWELL, JJ., and SMITH, Circuit Judge, concur.

THOMAS, THORNAL and O’CONNELL, JJ., dissent.