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County v. Costco Wholesale Corp.6/27/2002
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. However, section 38-1414(b) of the Orange County Code, 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. 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continued in effect until sometime after 1964, when the 5000-foot separation distance for package sales vendors was repealed.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. After denial of the 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 jurisdic
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