Acme Speciality Corp. v. City of Miami, 73--938
| Decision Date | 26 March 1974 |
| Docket Number | No. 73--938,73--938 |
| Citation | 292 So.2d 379 |
| Parties | ACME SPECIALTY CORPORATION, a foreign corporation, Appellant, v. CITY OF MIAMI, a municipal corporation, Appellee. |
| Court | Florida District Court of Appeals |
Ullman, Kimler & Entin, Miami, for appellant.
John S. Lloyd, City Atty., and S. R. Sterbenz, Asst. City Atty., for appellee.
Before BARKDULL, C.J., and CARROLL and HENDRY, JJ.
This case was argued as a companion to Dade County v. Acme Specialty Corporation, Fla.App., 292 So.2d 378, and involves the validity of a City of Miami ordinance banning the sale of fireworks within that municipality.
The instant litigation was commenced subsequent to the Supreme Court's opinion in Rinzler v. Carson, Fla.1972, 262 So.2d 661, the appellant contending that it was specifically authorized to sell sparklers by the provisions of § 791.01, Fla.Stat., F.S.A., and that the City, by ordinance, could not limit these sales. The City responded that these identical parties had been in previous litigation in 1958, involving the same statutes wherein the City's right, pursuant to § 168.10, Fla.Stat., F.S.A., to prohibit the sale of fireworks was affirmed, resulting in prohibiting the appellant from selling fireworks at that time. Therefore, the City contended the appellant was estopped to maintain its right to do so at the present time. The earlier case is cited as Acme Specialties Corporation v. City of Miami, Fla.App.1959, 110 So.2d 18. This case resulted in a per curiam affirmance without opinion by this court, with a strong dissent. Certiorari was denied by the Supreme Court, and the appellant refrained from selling within the City.
Thereafter, subsequent to the ruling in Rinzler v. Carson, supra, by the Supreme Court of Florida, the appellant instituted the instant action in the trial court by a new suit, attempting to be relieved from the prohibitory features of the same ordinance which was involved in the earlier litigation. As indicated, it was unsuccessful upon the plea of res judicata.
We first note that the earlier case, resulting in an order upholding the ordinance and thereby prohibiting the sale of sparklers within the city limits of the City of Miami, became a judgment of this court upon the entry of the mandate of this court, which was not subject to interference without the specific permission of this court. Eisenburg v. Cornblum, 156 Fla. 702, 24 So.2d 236; Fairfax Broadcasting Company v. Florida Airmotive, Inc., Fla.App.1971, 252 So.2d 854; Lesperance v. Lesperance, Fla.App.1971, 257 So.2d 66. We have concluded that the law should be on this subject matter, as pronounced in Dade County v. Acme Specialty Corporation, Fla.App.1974, 292 So.2d 378, and, if necessary recede from the earlier opinion reported in Acme Specialties Corporation v. City of Miami, Fla.App.1959, 110 So.2d 18. As noted before, this was a per curiam opinion with no reasons or authorities given and, although this may be sufficient to support a plea of res judicata as between the original parties, such per curiam affirmance opinion does not stand for any general pronouncement of principles of law that might have been urged by the parties in their pleadings and briefs. 1 Further, it appears that the Supreme Court, in the recent case of Rinzler v. Carson, supra, has clearly stated that the law in this State today is that a municipality may not prohibit that which is specifically authorized by a general State statute. Therefore, it would appear that the appellant would have a good ground to believe that it should be relieved of the prohibitory impact of the 1958 decree, which subsequently became a judgment of this court by virtue of the appellate proceedings.
Foley v. Weaver Drugs, Inc., Fla.1965, 177 So.2d 221, wherein the...
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