Bay Area News, Inc. v. Poe, 78-206
| Citation | 364 So.2d 830 |
| Decision Date | 22 November 1978 |
| Docket Number | No. 78-206,78-206 |
| Parties | BAY AREA NEWS, INC., etc., et al., Appellants, v. William POE, etc., et al., Appellees. |
| Court | Florida District Court of Appeals |
J. Richard Rahter of Fox & Rahter, St. Petersburg, for appellants.
Thomas K. Morrison, Tampa, for appellees.
This is an appeal from an order of dismissal construing Tampa City Code § 20-65 as valid in the face of appellants' first amendment attack.
Appellants are owners and operators of several "adult" bookstores and live nude model photo studios in the City of Tampa. Each held a city occupational license as of the close of business October 26, 1977. By resolutions passed at a meeting on October 27, 1977, the Tampa City Council revoked appellants' city licenses because appellants or their employees had been convicted of crimes involving moral turpitude committed in the course of the licensed businesses. The council acted pursuant to § 20-65 of the City Code which reads as follows:
Sec. 20-65. Revocation of permit and license for conviction involving moral turpitude; reinstatement.
If at any time a person, during the course of engaging in the business or occupation for which he is licensed under this chapter, shall be guilty of any offense involving moral turpitude and is convicted thereof, upon the production of the due and proper record of such conviction to the city council, the council may forthwith revoke the permit and license of such person, in such occupation or business, and the same shall not be reinstated except by the city board, upon good assurance presented to the council at a public hearing by said person, whose license was revoked, said hearing to be set and held by the council within ten (10) days after the council is notified in writing by said person, that it desires such a hearing before the council. . . .
The resolutions revoking the licenses became effective immediately upon passage.
Appellants each requested a hearing before the council as envisioned by § 20-65. At the hearing appellants did not dispute the existence of the convictions giving rise to the council's action, but generally opposed the council's decision. The council, however, stood by its resolutions of October 27.
Appellants continued to operate their businesses without city licenses in violation of City Code § 20-2. They also filed suit in circuit court seeking both an injunction to prevent appellees from continually arresting their employees and a declaration that the ordinance and the resolutions revoking their licenses were unconstitutional restrictions on the freedom of expression guaranteed by the first amendment of the United States Constitution. Appellees answered and counterpetitioned to enjoin appellants from continuing to operate their respective businesses without valid city licenses. Contemporaneously, appellees moved to dismiss the complaint. The complaint was dismissed with leave to amend. Appellants filed an amended complaint which, upon appellees' motion, was dismissed with prejudice. 1 Subsequently, the court entered a preliminary injunction preventing the appellants from continuing to operate without city licenses. 2
Appellants contend that City Code § 20-65 is unconstitutional as applied to them because it acts as a prior restraint on their exercise of first amendment rights to free expression. Appellants argue that if they can be prevented from disseminating any publications simply because in the past they have distributed unprotected, obscene matter in violation of obscenity laws, their right to free expression has been wrongfully conditioned on the content of past expression. See Near v. Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931). We cannot agree.
The ordinance in question is quite narrow. Not only does revocation depend upon conviction of a crime involving moral turpitude, but the crime must have been committed in the course of engaging in the licensed occupation. Therefore, the purpose of § 20-65 as applied to appellants is not to restrain them from future dissemination of printed material but to call them to account for past abuses of the privilege of doing business in the city.
In 106 Forsyth Corporation v. Bishop, 362 F.Supp. 1389 (M.D.Ga.1972), the court rejected an argument that a city ordinance allowing the mayor and the council to revoke a motion picture theater business license because of the showing of an allegedly obscene film constituted a prior restraint of the theater owner's first amendment rights. 3 The court stated:
Of course if its (theater's) license is revoked for twelve months . . . the result will be that it cannot do business in the City of Athens during such revocation period. The non-exhibition of films obscene or non-obscene during said period would not be the result direct or indirect of previous restraint, but would result incidentally from past abuses of immunity from previous restraint just as a person convicted and imprisoned for criminal libel might be incidentally and indirectly prevented and thus practically restrained from any and all publications during the period of incarceration.
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