City of Miami Beach v. State Ex Rel. Lear

• Decision Date: 30 June 1937
• Citation: 175 So. 537,128 Fla. 750
• Parties: CITY OF MIAMI BEACH et al. v. STATE ex rel. LEAR et al.
• Court: Florida Supreme Court

175 So. 537

128 Fla. 750

CITY OF MIAMI BEACH et al. v. STATE ex rel. LEAR et al.

Florida Supreme Court

June 30, 1937

Error to Circuit Court, Dade County; Jeffn.B. Browne, Judge.

Mandamus by the State, on relation of Ida R. Lear, joined by her husband, E. G. Lear, against the City of Miami Beach, a municipal corporation in Dade county, and another.A peremptory writ was issued, and respondents bring error.

Affirmed.

COUNSELJ. Harvey Robillard, of Miami Beach, for plaintiffs in error.

Benjamin Cohen and Edward L. Lustgarten, both of Miami, for defendants in error.

OPINION

BUFORD Justice.

Defendants in error instituted mandamus proceedings in the circuit court of Dade county coerce the plaintiffs in error 'to forthwith issue to said Ida R. Lear, a permit to operate a school for minors within the said premises.'The premises referred to were described as the following described property 'lying within the corporate limits of the City of Miami Beach, Florida; 1500 Collins Avenue, City of Miami Beach, Florida.'

After motion to quash alternative writ was denied, respondents answered, pleading section 5 of OrdinanceNo. 289as amended byOrdinanceNo. 433 approved August 6, 1936.Section 5 of OrdinanceNo. 289 was prior to amendment as follows:

'Section 5.

'Use Regulations

'Multiple-Family District

'In the 'Re'Multiple-Family District, no building or land shall be used and no building shall be hereafter erected, constructed, reconstructed or structually altered which is designed, arranged or intended to be used for any purpose, unless otherwise provided for in this ordinance, except for one or more of the following uses:

'(1) Any use permitted in the 'RDD' Modified Single-Family district.(427)

'(2) Multiple-family dwellings or apartments in accord with the area provisions hereinafter defined, and accessory buildings.

'(3) Hotels.

'(4) Hotels with one hundred (100) or more guest rooms may contain business establishments of the 'BAA' classification providing the exterior of the building shall not contain store fronts or have the appearance or commercial or mercantile activities or any display of articles or services for sale which are visible from the exterior of the building or on the grounds facing a public highway or water frontage, and providing further that businesses established under the provisions of this section shall only be entered from within the building.

'(5) Private clubs, only upon approval and permit by the city council of the City of Miami Beach. (389)

'(6) Bungalow or house courts.

'(7) Apartment hotels.Provision for exterior appearances to be the same as provided in ItemNo. 4 for Hotels.

'(8) Miniature golf courses.

'(9) Public or private schools.

'(10) Accessory uses for tenants only.(427).'

The pertinent part of the amendatory ordinance No. 433 is as follows:

'Be it ordained by the city council of the city of Miami Beach, Florida:

'That Section 5 of OrdinanceNo. 289, as amended, be and

'Section 1: the same is hereby amended by eliminating therefrom the following:

'(9) Public or private schools.'

and substituting in lieu therefor, the following:

'(9) Public schools."

Motion to strike the answer was presented but it appears that the learned circuit judge, the late lamented Jefferson B. Browne, granted peremptory writ, the answer notwithstanding.In doing so he prepared and caused to be filed an opinion as follows:

'An alternative writ of mandamus was issued directed to the City of Miami Beach Florida, to show cause why it should not issue a license or permit to the petitioner, Ida R. Lear, joined by her husband, E. G. Lear, to operate a school for minors within a certain restricted area in the City of Miami Beach, designated as a Multiple-Family District.Answer was filed to the alternative writ, and a motion made to quash the same.The motion to quash was denied, and the matter is before the Court on motion to strike the defendant's answer.

'The issues present this question: Is the provision of Section 5 of the Zoning Ordinance of the City of Miami Beach, to the effect that no building within what is called in the Ordinance a Multiple-Family District may be used for the operation of any public or private school a reasonable exercise of the City's authority?Affidavits were submitted on the question of whether or not private schools are detrimental to the inhabitants of, or property located within, such district.

'There are, no doubt, some people who regard all children, except their own, as nuisances, and to such the laughter of a child at play is a discordant note.The dedication of private property to the mental and moral training of children is a very high purpose.To those who regard their personal peace and confort as the highest purpose of the law, a child's laughter, the bird's warbling, the brook's babbling and even the fluttering of falling leaves, are nuisances which should be prohibited within certain zones.

'It may be possible to so conduct a private school for children that it becomes a nuisance.When such a condition exists, the City may abate it as it would any other nuisance.Occupations that have within themselves elements that cannot be regulated, may be...