City of Miami Springs v. J.J.T., Inc.

• Decision Date: 13 September 1983
• Docket Number: No. 82-119,82-119
• Citation: 437 So.2d 200
• Parties: CITY OF MIAMI SPRINGS, Appellant, v. J.J.T., INC., a Florida corporation, d/b/a Doc Watson's Club, Appellee.
• Court: Florida District Court of Appeals

Page 200

437 So.2d 200

CITY OF MIAMI SPRINGS, Appellant, v. J.J.T., INC., a Florida corporation, d/b/a Doc Watson's Club, Appellee.

No. 82-119.

District Court of Appeal of Florida,

Third District.

Sept. 13, 1983.

Weintraub, Weintraub, Seiden, Dudley & Press and Robert D. Orshan and Albert L. Weintraub, Miami, for appellant.

Simon, Schindler & Hurst and Sharon B. Jacobs and Deborah J. Miller, Miami, for appellee.

Before SCHWARTZ, C.J., and HENDRY and DANIEL S. PEARSON, JJ.

DANIEL S. PEARSON, Judge.

The issues presented by this appeal are first, whether a Florida municipality may constitutionally prohibit a liquor licensee from serving liquor at the same time that sexual performances or like activities are occurring on its premises; and second, if there be no constitutional impediment to such an enactment, whether the state statute regulating the licensing and sale of alcoholic beverages limits the power of the municipality to act.

The seed of this controversy was planted in 1978 when the City of Miami Springs (the City) adopted Ordinance 626-78 which, inter alia, made it a criminal offense for a liquor licensee to serve or permit the consumption of alcoholic drinks at the same time when any "sex related business activity or use" is taking place on the licensee's premises. The challenged part of the ordinance provides:

"Sec. 1(c). Regulation of the hours of business of licensees under beverage laws. Notwithstanding, the hours of business during which the sale of alcoholic beverages is permitted by the Miami Springs Code of Ordinances for businesses licensed under the beverage laws of the State of Florida to sell alcoholic beverages, the sale of alcoholic beverages and the consumption thereof on the licensed premises is prohibited during the hours when any 'sex related business activity or use' as defined herein takes place on the licensed premises."

Sex-related business activity or use is defined, in part, as:

"commercial activity or use which takes place in taverns; ... and places of public entertainment, ... wherein there is offered to the public for any type of consideration, sexual conduct ... or the display of specified anatomical areas."

In turn, specified anatomical areas are defined as:

"(i) less than completely and opaquely covered human or animal genitals, pubic region, buttocks or the female breasts below a point immediately above the top of the areola, and

"(ii) human male genitals in a discernably turgid state, even if completely and opaquely covered."

The stated predicate for the ordinance was the City Commission's findings that such activities as nude dancing and worse were lately proliferating in the City and that this development was deleterious to the quality of neighborhood life, inhibited positive growth, and created a drain on police and other relevant government services. More significantly, the Commission also found:

"that sex offenses, disturbances, drunkeness [sic], assault and injuries to persons are substantially increased at locations where sex related business activities and uses take place during the hours when alcoholic beverages are licensed to be sold and are consumed on said business premises."

J.J.T., Inc., the owner of Doc Watson's, a nightclub characterized by it as "offering exotic dancing which features female dancers [appearing] in an unclothed state," brought suit seeking a declaration that the ordinance was invalid and to enjoin its enforcement. It claimed that the ordinance is void for vagueness, infringes on constitutionally-protected freedom of expression, treads in an area preempted by the state, and is an improper exercise of the police power because it bears no reasonable relation to the health, safety or welfare of the citizenry.

The trial court, declining to rule on the constitutional questions presented, entered summary judgment in favor of J.J.T., Inc. and enjoined the City from enforcing the ordinance against J.J.T., Inc., finding that the effect of the subject ordinance was to unlawfully take J.J.T.'s property, requiring that J.J.T.'s "operation be 'grandfathered in' and not be curtailed by a subsequently enacted ordinance," and that the Legislature, having explicitly outlined the power of municipalities to regulate alcoholic beverage licensees in Sections 562.14 and 562.45(2), Florida Statutes (1981), had preempted the power to enact legislation of the sort found in the ordinance. The City appeals.

It is apodictic that even the complete prohibition of a previously lawful and existing business does not constitute a taking where the owner is not deprived of all reasonable use of his property, as long as the prohibition promotes the health, safety and welfare of the community and is thus a valid exercise of the police power. Penn Central Transportation Co. v. City of New York, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978); Hadacheck v. Sebastian, 239 U.S. 394, 36 S.Ct. 143, 60 L.Ed. 348 (1915); Reinman v. Little Rock, 237 U.S. 171, 35 S.Ct. 511, 59 L.Ed. 900 (1915); Mugler v. Kansas, 123 U.S. 623, 8 S.Ct. 273, 31 L.Ed. 205 (1887); Kuban v. McGimsey, 96 Nev. 105, 605 P.2d 623 (1980).

In Mugler v. Kansas, the United States Supreme Court explained:

"A prohibition simply upon the use of property for purposes that are declared, by valid legislation, to be injurious to the health, morals, or safety of the community, cannot, in any just sense, be deemed a taking or an appropriation of property for the public benefit. Such legislation does not disturb the owner in the control or use of his property for lawful purposes, nor restrict his right to dispose of it, but is only a declaration by the State that its use by anyone, for certain forbidden purposes, is prejudicial to the public interests. Nor can legislation of that character come within the Fourteenth Amendment, in any case, unless it is apparent that its real object is not to protect the community, or to promote the general well being, but, under the guise of police regulation, to deprive the owner of his liberty and property, without due process of law. The power which the States have of prohibiting such use by individuals of their property as will be prejudicial to the health, the morals, or the safety of the public, is not--and, consistently with the existence and safety of organized society, cannot be--burdened with the condition that the State must compensate such individual owners for pecuniary losses they may sustain, by reason of their not being permitted, by a noxious use of their property, to inflict injury upon the community. The exercise of the police power by the destruction of property which is itself a public nuisance, or the prohibition of its use in a particular way, whereby its value becomes depreciated, is very different from taking property for public use, or from depriving a person of his property without due process of law. In the one case, a nuisance only is abated; in the other, unoffending property is taken away from an innocent owner.

"It is true that when the defendants in these cases purchased or erected their breweries, the laws of the State did not forbid the manufacture of intoxicating liquors. But the State did not thereby give any assurance, or come under an obligation, that its legislation upon that subject would remain unchanged. Indeed, ... the supervision of the public morals is a governmental power, 'continuing in its nature,' and 'to be dealt with as the special exigencies of the moment may require;' and that, 'for this purpose, the largest legislative discretion is allowed, and the discretion cannot be parted with any more than the power itself.' ... 'If the public safety or the public morals require the discontinuance of any manufacture or traffic, the hand of the Legislature cannot be stayed from providing for its discontinuance by any incidental inconvenience which individuals or corporations may suffer.' "

123 U.S. at 668-670, 8 S.Ct. at 301, 31 L.Ed. at 213 (citations omitted).

Since it is obvious--and J.J.T. does not, and cannot, seriously contend otherwise--that the ordinance in question does not deprive J.J.T. of all reasonable use of its property, necessarily implicit in the trial court's finding that the ordinance constituted a taking of property without due process of law is a determination that the ordinance was not a proper exercise of the City's police power. Therefore, although the trial court ostensibly avoided the constitutional question of whether the ordinance was an improper exercise of the police power, its determination that there was a taking in effect affirmatively answered the question. We think the trial court's answer was erroneous.

"[T]he regulation of the liquor traffic is one of the oldest and most untrammeled of legislative powers." Goesaert v. Cleary, 335 U.S. 464, 465, 69 S.Ct. 198, 199, 93 L.Ed. 163, 165 (1948). Laws pertaining to places where liquor is dispensed which are found to have some basis in reason have been historically upheld as not impinging upon the First Amendment right to free expression, California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972) (state's ban of live performances of a sexual nature); Richter v. Department of Alcoholic Beverage Control, 559 F.2d 1168 (9th Cir.1977), cert. denied, 434 U.S. 1046, 98 S.Ct. 891, 54 L.Ed.2d 797 (1978) (same); and as not being improper exercises of the police power, Nelson v. State ex rel. Gross, 157 Fla. 412, 26 So.2d 60 (1946) (ordinance forbidding female bartenders); City of Miami v. Jiminez, 130 So.2d 109 (Fla. 3d DCA 1961) (ordinance prohibiting female bar employees from accepting drinks paid for by customers); Grand Faloon Tavern, Inc. v. Wicker, 670 F.2d 943 (11th Cir.1982), cert. denied, 459 U.S. 859, 103 S.Ct. 132, 74 L.Ed.2d 113 (1982) (ordinance banning exposure of private parts or female breasts in bars). See also Barmat v. Robertson, 125 Ariz. 514, 611 P.2d 101 (Ariz.Ct.App.1980), appeal dismissed, 449 U.S. 894, 101 S.Ct. 259, ...