City of Tampa v. Islands Four, Inc.

• Court: Florida District Court of Appeals
• Writing for the Court: BOARDMAN
• Citation: City of Tampa v. Islands Four, Inc., 364 So.2d 738 (Fla. App. 1978)
• Decision Date: 27 September 1978
• Docket Number: No. 77-1870,77-1870
• Parties: CITY OF TAMPA, a Municipal Corporation of the State of Florida, Appellant, v. ISLANDS FOUR, INC., a Florida Corporation, Appellee.

Page 738

364 So.2d 738

CITY OF TAMPA, a Municipal Corporation of the State of Florida, Appellant, v. ISLANDS FOUR, INC., a Florida Corporation, Appellee.

No. 77-1870.

District Court of Appeal of Florida, Second District.

Sept. 27, 1978.

Rehearing Denied Nov. 27, 1978.

Henry E. Williams, Jr., City Atty. and Thomas K. Morrison, Asst. City Atty., Tampa, for appellant.

Britt Whitaker, Tampa, for appellee.

BOARDMAN, Acting Chief Judge.

Appellee Islands Four, Inc. owned and operated a dance hall on Davis Island, which is located within the city limits of appellant City of Tampa. For several years Islands Four had been licensed by the city to operate the dance hall as well as a hotel, restaurant, and bar on the same premises. Appellee applied to the city for renewal of its public dance hall license for the occupational license year October 1976 September 1977. At a regularly scheduled Tampa City Council meeting held on January 25, 1977, ¹ several residents of Davis Island appeared and objected to the renewal of the dance hall license on various grounds. John Golden, one of the four officers and owners of Islands Four, was present at the meeting and argued in support of renewal of the dance hall license. The city council voted not to renew the license after hearing the arguments.

On January 27, 1977, attorney for appellee filed with the city council a request for rehearing on the matter. The request was granted and on February 15, 1977, the city council held a hearing to reconsider their action of January 25. At this hearing the four owners of Islands Four were present and were represented by an attorney who presented evidence and testimony. Evidence and testimony against the renewal of the Islands Four dance hall license were presented by an assistant city attorney and by several residents of Davis Island who reported being disturbed by loud noise from the dance hall at night, among other complaints. The city council was advised by an assistant city attorney of section 6-44 of the City of Tampa Code which provides that a dance hall license may be revoked for violation of ordinances applying to dance halls. He further advised council of Sections 23-1 and 23-2 which prohibit the creation of unreasonably loud noise by the playing of musical instruments in such a manner as to disturb the repose of persons in any dwelling. Thereafter the Tampa City Council voted to deny renewal of the Islands Four dance hall license.

Subsequently, appellee commenced an action against appellant in the Circuit Court of Hillsborough County seeking an injunction and damages. ² The complaint alleged that the Tampa City Council acted in an arbitrary, capricious, and discriminatory manner when it denied renewal of the Islands Four dance hall license. At the final hearing of the circuit court, over objection of counsel for the city, evidence and testimony were received which had not been presented to city council at the February license hearing. The court in its final judgment found that the city council acted in an arbitrary, capricious, and discriminatory manner at its February 15, 1977 hearing; and directed appellant to issue the dance hall license to Islands Four and to pay Islands Four the sum of $75,000 as damages. The final judgment did not include any findings of fact.

Whether the act was arbitrary or capricious is determined first by a look at the applicable ordinances. If the ordinances afford definite, reasonable factors ³ to guide a discretionary agency action, and there is sufficient, competent evidence to support the findings of the agency, its action is not arbitrary or capricious. See, e. g., Hope v. City of Gainesville, 195 So.2d 849 (Fla.1967); De Groot v. Sheffield, 95 So.2d 912 (Fla.1957).

Our decision is dependent on certain provisions of the code of the City of Tampa. Section 6-41 applies to issuance of a license for a public dance hall and section 6-44 to a forfeiture or revocation of a dance hall license. There was no ordinance in effect at that time which expressly addressed a renewal or reissuance of a license for a dance hall. ⁴

Sec. 6-41. Public dance hall License required; fee; compliance with regulations.

A license shall be required for each public dance hall. No license for a public dance hall shall be issued until an application is made to the city council and the council shall determine that the applicant has complied with and conformed to this Code and all health and fire regulations of the city. At the time the application is made, a fee of twenty-five dollars ($25.00) shall be paid to the city comptroller to cover the costs of investigation and administration by the city. (Ord. No. 873-A, 12-2-42; Code 1953, § 26-19; Ord. No. 4400, § 1, 3-19-68)

Section 6-44. Same Revocation of license; lapse of time before reissuance.

The license of any public dance hall shall be forfeited or revoked by the city council for disorderly or immoral conduct on the premises, or for the violation of any of the rules, regulations, ordinances and laws governing or applying to public dance halls or public dances. If at any time the license of a public dance hall shall be forfeited or revoked, at least six (6) months shall elapse before another license or permit shall be given for public dancing to the same person or corporation forfeiting such license, or on the same premises unless it shall be clearly shown that the person forfeiting such license has ceased all direct and indirect connection with such premises. (Code 1926, § 1316; Code 1953, § 26-20)

City of Tampa Code, Section 23-1 provides in pertinent part that: "The creation of any avoidable and unreasonably loud, disturbing, and unnecessary noise within the corporate limits of the city is hereby prohibited." City of Tampa Code, Section 23-2 provides in pertinent part that:

The following acts, among others, are declared to be loud, disturbing, avoidable, and unnecessary noises and nuisances in violation of this chapter. . . .

The playing of any radio, phonograph or any musical instrument or device in such manner or with such volume as to annoy or disturb the quiet, comfort, and repose of persons in any dwelling, place of business, hotel, or other types of residence.

As explained in Librizzi v. Plunkett, 126 N.J.L. 17, 16 A.2d 280 (1940) the power to revoke for certain enumerated reasons has as a corollary the implied power to refuse to renew for those same reasons. This conclusion is based on the perceived ...