City of Miami v. Kayfetz

• Decision Date: 13 February 1957
• Citation: 92 So.2d 798
• Parties: CITY OF MIAMI, a municipal corporation of the State of Florida, Appellant, v. Irwin KAYFETZ, Appellee.
• Court: Florida Supreme Court

Page 798

92 So.2d 798

CITY OF MIAMI, a municipal corporation of the State of Florida, Appellant, v. Irwin KAYFETZ, Appellee.

Supreme Court of Florida, Division B.

Feb. 13, 1957.

Rehearing Denied March, 4, 1957.

Olavi M. Hendrickson, Miami, for appellant.

George B. Everett, Miami, for appellee.

O'CONNELL, Justice.

The appellant, City of Miami, the defendant below, adopted the following amendment to an existing ordinance:

'Section 46. It shall be unlawful for female employees or entertainers in places dispensing alcoholic beverages for consumption on the premises to mingle or fraternize with the customers or patrons of such establishment.

'Section 47. It shall be unlawful for an owner, operator or manager of a place dispensing alcoholic beverages for consumption on the premises to employ or permit on the premises any person to solicit drinks for himself or any other person.

'Section 48. It shall be unlawful for any employee or entertainer of a place dispensing alcoholic beverages for consumption on the premises to drink alcoholic beverages in said place of business and it shall be unlawful for an owner, operator, or manager of a place of business dispensing alcoholic beverages for consumption on the premises to permit any employee or entertainer to drink alcoholic bverages in said place of business.

'Section 49. It shall be unlawful for any woman to frequent or loiter in any tavern, cabaret or night club for the purpose of soliciting men to purchase drinks.'

The appellee, plaintiff below, who is the owner of a beverage license and operator of a night club in the City of Miami, filed a suit for declaratory decree praying the Chancellor to declare the above amendment to ordinance invalid because improperly passed as an emergency measure, to declare same unreasonable and unconstitutional, and to enjoin the enforcement thereof. The Chancellor apparently found the ordinance properly passed as an emergency measure and we are not required to pass upon this question.

The Chancellor, after hearing testimony of the Mayor and the City Manager of the City of Miami and of the plaintiff, entered a temporary restraining order, enjoining the City from enforcing the amendment to the ordinance. In his detailed and well written temporary restraining order, he expressed doubt that the provisions of the ordinance in question were reasonable regulations and doubt that the conduct prohibited in those sections was 'detrimental per se to the 'health, safety and general welfare' of the inhabitants of the City, when viewed in the light of normal human behavior and social intercourse.'

On final hearing the Chancellor entered a final decree making the restraining order permanent, assigning as the basis for this decree the same grounds as expressed in the temporary restraining order, i. e. that the ordinance was an unreasonable exercise of the police power of the City. The City appeals from this final decree.

It is clear from the testimony of the Mayor and the City Manager that the ordinance was designed and adopted to stop the practice followed by some purveyors of alcoholic beverages, wherein 'B-girls', who may also be entertainers, sit with and encourage patrons to buy such alcoholic beverages both for the B-girl and the patron. It was admitted by the plaintiff that he uses this procedure in his business, that it increases spending by his patrons, and that he gives his employees who participate in this scheme a portion or percentage of the monies spent by the patrons.

The Mayor and City Manager further testified that the patrons on whom the B-girls operate are men; that these men are induced to purchase drinks by the visions, or promises, express or implied, of immoral relations with the girls; and that such arrangement offers a convenient place of operation for women who ply the trade of prostitution. They further testified that in some cases the patron who purchases drinks for the B-girls are charged for alcoholic drinks, whereas a non-alcoholic substance is served to the B-girls, constituting a fraud on the patron. They testified also that patrons are induced to drink more alcohol and to spend more than they otherwise would except for the practice complained of.

The only question raised by the appellant City is that the Chancellor erred in decreeing the ordinance to be unreasonable.

Plaintiff, as appellee here, did not file a brief with this Court, therefore we can determine his contentions only from his bill of complaint and the record in the court below.

In his bill of complaint plaintiff admits that it is his practice to allow his bartenders, hostesses, waiters and waitresses to accept from his customers alcoholic beverages purchased by the customers. He admits that it is his practice to allow entertainers employed by him to engage in social fraternization with and accept from his customers beverages, both alcoholic and non-alcoholic. He alleges that social fratternization and the purchase of drinks by his patrons for his employees is his constitutional right.

He alleges in his bill of complaint that the practice is a valuable asset to his business, and that he will be damaged if not allowed to continue to follow it.

He further alleges, and apparently argued before the Chancellor, among other things, that the sections of the ordinance involved here are invalid because they (1) are an unreasonable exercise of the police power of the City; (2) attempt to prohibit conduct not detrimental to the health, safety and welfare of the City and its people; (3) do not afford equality and uniformity in their application; (4) violate Articles V and XIV of the Federal Constitution and Sections 1, 12 and 17 of Declaration of Rights of our State Constitution, F.S.A.

He complains further that the ordinance places an unreasonable burden on him to police the conduct of his patrons to avoid violations of the ordinance by them, that it prohibits him the right to accept drinks purchased by his customers; and that it prohibits him from selling drinks to his employees even when they are off duty.

In construing the validity of the ordinance in question we must: (1) assume that a valid ordinance was intended. State ex rel. Ellis v. Tampa Water Works Co., 1908, 56 Fla. 858, 47 So. 358, 19 L.R.A.,N.S., 183; (2) construe the ordinance to be legal, if possible to do so, and strive to so construe it as to give reasonable effect to its provisions, State ex rel. Rand v. Brogden, 1922, 84 Fla. 520, 94 So. 653, Bentley-Gray Dry Goods Co. v. City of Tampa, 1939, 137 Fla. 641, 188 So. 758.

Further, the courts should be very cautious in declaring a municipal ordinance unreasonable, there being a peculiar propriety in permitting the inhabitants of a City through its proper officials to determine what rules are necessary for their own local government. State ex rel. Harkow v. McCarthy, 1936, 126 Fla. 433, 171 So. 314, City of Tacoma v. Keisel, 1912, 68 Wash. 685, 124 P. 137, 40 L.R.A.,N.S., 757.

Where an ordinance is within the power of the municipality to enact it is presumed to be reasonable, unless its unreasonable character appears on its face. State ex rel. Harkow v. McCarthy, supra; State ex rel. McAuley v. York, 1925, 90 Fla. 625, 106 So. 418. And when the authority to enact the ordinance does fairly appear, wide latitude is allowed in its exercise, where it does not appear that there has been, in action taken, an abuse of authority or a violation of organic or funcamental rights. State ex rel. Simpson v. Ackerly, 1915, 69 Fla. 23, 67 So. 232. If reasonable argument exists on the question of whether an ordinance is arbitrary or unreasonable, the legislative will must prevail. State ex rel. Skillman v. City of Miami, 1931, 101 Fla. 585, 134 So. 541.

There can be no question that the City of Miami, under its police power, has the right to enact reasonable regulations concerning the sale of alcoholic beverages, as well as other acts in the conduct of such business which do not directly pertain to the sale thereof. Sec. 168.07, F.S., F.S.A. City of Miami Beach v. State ex rel. Patrician Hotel Co., 1941, 145 Fla. 716, 200 So. 213.

In considering whether or not the ordinance now before us is reasonable, the test is not whether we think it a wise measure or the best means of approaching a problem, but rather whether it has a rational relation to the public health, morals, safety or general welfare and is reasonably designed to correct a condition adversely affecting the public good. And the test must be applied in view of the character or nature of the condition to be remedied and all circumstances relating thereto.

The legislative body of the City of Miami found that the practice of having B-girls, female employees and female entertainers, mingle and fraternize with the patrons of establishments selling alcoholic beverages, to solicit the purchase of such beverages by such patrons is a practice which adversely affects the morals of the citizens of that community and its visitors, and is harmful to the general welfare of the community. We have no authority to distrub this finding unless shown to be without basis and the plaintiff made no showing that the finding was without basis or clearly erroneous.

All sections of the amendment to the ordinance affect, only, establishments which are licensed to sell alcoholic beverages for consumption on the premises.

Sections 46, 48, and 49 prohibit actions of persons not parties to this suit and therefore we cannot decide, in this opinion, the validity of those sections on their rights. Nelson v. State ex rel. Gross, 1946, 157 Fla. 412, 26 So.2d 60. It...