Acme Specialties Corp. v. City of Miami, 58-384

• Citation: 110 So.2d 18
• Decision Date: 26 March 1959
• Docket Number: No. 58-384,58-384
• Parties: ACME SPECIALTIES CORPORATION, an Illinois corporation, authorized and doing business in the State of Florida, Appellant, v. CITY OF MIAMI, a municipal corporation, Appellee.
• Court: Court of Appeal of Florida (US)

Page 18

110 So.2d 18

ACME SPECIALTIES CORPORATION, an Illinois corporation, authorized and doing business in the State of Florida, Appellant, v. CITY OF MIAMI, a municipal corporation, Appellee.

No. 58-384.

District Court of Appeal of Florida, Third District.

March 26, 1959.

Rehearing Denied April 8, 1959.

Okell & Okell, Miami, for appellant.

William L. Pallot, City Atty., and Chares K. Allan, Miami, for appellee.

PER CURIAM.

Affirmed.

CARROLL, CHAS., C. J., and PEARSON, J., concur.

HORTON, J., dissents.

HORTON, Judge (dissenting).

I respectfully dissent from the majority decision.

The appellant, plaintiff below, brought an action for temporary injunction and other relief, alleging that it was a manufacturer, wholesaler and retailer of sparklers, and that by reason of ordinance No. 6021 of the City of Miami, adopted September 5, 1957, the appellant was unable to pursue the conduct of its business in the City of Miami. Appellant further alleged that the ordinance was an unlawful exercise of the police power of the appellee-City of Miami, and prayed the court for a temporary injunction restraining the City, its officers and agents from enforcing the said ordinance and to declare the same to be unconstitutional and void. The appellee answered the complaint, denying the material allegations and particularly denying that sparklers manufactured by the appellant were not dangerous or harmful or that ordinance No. 6021 was illegal or unconstitutional.

Upon a hearing before the chancellor, the court entered a final decree denying injunctive relief and finding that ordinance No. 6021 enacted by the appellee, was not inconsistent with the general laws of Florida, and was a lawful and reasonable exercise of the police power of the appellee. This appeal is from that final decree.

As background for the appellant's contention that ordinance No. 6021 is unconstitutional and void, and an unreasonable exercise of the police power of the appellee is the following: In 1941, the legislature of Florida enacted Chapter 20445 (§ 791 Fla.Stat., F.S.A.) which defined fireworks to include any combustible or explosive composition, or any substance or combination thereof, or any article prepared for the purpose of producing a visible or audible effect by combustion, explosion, deflagration or detonation, and excepted therefrom toy pistols, toy canes, toy guns or other devices containing 20/500's grains or less of explosive compound. There existed also at the time § 168.10, Fla.Stat., F.S.A., which provided as follows:

'Any municipality in this state may prohibit by ordinance the sale within its limits of any such fireworks as may be deemed objectionable by the council of such municipality.'

The legislature of Florida, at its regular session in 1957, amended § 791.01 to specifically exclude sparklers from the definition of fireworks. This amendment became law on June 5, 1957. Subsequent thereto, and on September 5, 1957, the city commission of the City of Miami enacted ordinance No. 6021 as an emergency ordinance to prohibit the sale or possession of fireworks and defined fireworks in said ordinance to include sparklers.

The appellant contends that the inclusion of sparklers within the class of fireworks prohibited by ordinance No. 6021 is in derogation of and inconsistent with § 791.01(1)(2), Fla.Stat., F.S.A., as amended, and therefore, is unconstitutional and void. I agree with the appellant's contention.

There is no question as to the right of the City of...