Judges： Barns, Terrell, Buford, Adams
Filed Date： 11/4/1947
Status： Precedential
Modified Date： 11/7/2024
The respondent as plaintiff brought his bill against the petitioners-defendants. The petitioners-defendants filed a “motion to dismiss” the bill and a “motion to strike” pats of the bill. Both motions were overruled and denied which orders petitioners now seek review by this Court.
The bill alleges that Boris Rivkind at a time when he had no place of business obtained a license for a bar and package store for the sale of liquor and transferred it to J-M Corp. and. that such transfer was a violation of Section 561.32 F.S.A.
That the location of the bar and package store was without the “primary fire zone” as defined by the City’s ordinance and within a thousand feet of the St. Alban’s Kindergarten Nursery School; and that City ordinance 1682 prohibits the issuance of such a liquor license for a place of business nearer than a thousand feet to any school when without the “primary fire zone.”
Plaintiff-respondent also sought to justify his right to bring the bill by authority of 54.11 F.S.A. as an act to abate a nuisance, proceeding on the theory that any place to sell liquor is a nuisance as defined by 823.05 F.S.A.
It is our conclusion that a kindergarten nursery is not a school within the intent of the ordinance and Chapter 561, F.S.A.; that a place of business where liquor is sold is not a *555 nuisance per se; that plaintiff’s bill failed to state facts sufficient to authorize him to bring a suit for injunction against the petitioners-def endants; and that the bill is without equity; and that the Chancellor was in error in denying the motion to dismiss the bill.
Certiorari is granted and the order denying said motion to dismiss is quashed.