Collins v. State Beverage Dept.

• Decision Date: 08 September 1970
• Docket Number: No. L--416,L--416
• Citation: 239 So.2d 613
• Parties: T. I. COLLINS, d/b/a University Cigar and News Stand, Petitioner, v. STATE BEVERAGE DEPARTMENT of Florida, and A. R. Brautigam, as Director of the State Beverage Department of Florida, Respondents.
• Court: Florida District Court of Appeals

Page 613

239 So.2d 613

T. I. COLLINS, d/b/a University Cigar and News Stand, Petitioner, v. STATE BEVERAGE DEPARTMENT of Florida, and A. R. Brautigam, as Director of the State Beverage Department of Florida, Respondents.

No. L--416.

District Court of Appeal of Florida, First District.

Sept. 8, 1970.

Rehearing Denied Oct. 19, 1970.

John F. Roscow, III, of Scruggs, Carmichael & Tomlinson, Gainesville, for petitioner.

Jesse F. Warren, Jr., and W. R. Phillips Tallahassee, for respondents.

PER CURIAM.

The petitioner for a writ of certiorari seeks our review of an order entered by the State Beverage Department of Florida suspending his beer and wine license because of his sale and possession of obscene literature.

The principal question presented for our determination in these certiorari proceedings is whether the said department departed from the essential requirements of the law in entering the said order without any substantial, competent evidence before it that the said literature was in fact obscene.

The department filed two charges against the petitioner's beverage license-- that on the date in question he possessed and sold to a department agent an obscene magazine Subsequently, a hearing was held on the above charges before an examiner of the department. At that hearing, no competent, substantial evidence was presented to the effect that to the average person, applying contemporary community standards, the dominant theme of the material appeals to the prurient interest, nor that the materials lacked redeeming social values. Following the hearing the examiner filed his findings of fact and recommendation, to which the petitioner filed exceptions, and later the department entered the order which is the subject of these certiorari proceedings, finding the petitioner guilty of the said charges and suspending his beverage license for 15 days or, in lieu of the suspension, fining him $500.

entitled 'Foxy-Lady' for the price of $5.00, in violation of Sections 847.011(1) and 561.29(1)(a), Florida Statutes, F.S.A., and that on the said date he was in possession of certain obscene materials in violation of Sections 847.011 and 561.29(1)(a), Florida Statutes, F.S.A.

Because of the vital rights under the United States Constitution involved in obscenity cases, particularly the First and Fourteenth Amendments thereto, the decisions of the U.S. Supreme Court defining obscenity have been generally accepted by the state courts of this country.

In the landmark decision of Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), the United States Supreme Court declared that the test of obscenity is 'whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.' In the later case of A Book Named 'John Cleland's Memoirs of a Woman of Pleasure' v. Attorney General of Commonwealth of Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966), the Supreme Court added to the test the qualification that, to be held obscene, 'the material is utterly without redeeming social value.'

The members of this court, as individuals, have examined the three magazines attached to the hearing examiner's findings of fact and recommendation, entitled 'Foxy-Lady,' 'Peek,' and 'Miss Lesbo,' presumably being some of the magazines taken from the petitioner's place of business, and, in our personal and judicial opinions, these magazines are patently offensive, highly obscene, and devoid of any social or artistic value whatever.

We realize, of course, that this opinion will have little value as a judicial precedent if we do not convey some idea of the content of the magazines which we hold to be per se obscene as a matter of law. These magazines are filled with unretouched photographs, in color and in black and white, of completely nude women, with cameras focused directly upon their genitalia. The positioning of their bodies in every instance appeals only to the prurient interest in sex, and are entirely devoid of any social or artistic value. As Mr. Justice Stewart said in his concurring opinion rendered in the case of Jacobellis v. Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793, we believe we know hard-core pornography when we see it. The written articles accompanying some of the pictures obscenely discuss abnormal sex practices, such as flagellation. The average person could not truthfully testify that these materials are not obscene under the Roth test, and not evidence is required to prove the obscene nature of the materials. They speak for themselves, for they are 'autoptically obscene.' For a more detailed and graphic description of the photographs and written material appearing in the magazines, see the appendix following the conclusion of this opinion which by reference is included in and made a part hereof.

The rule relied on by the appellant requiring competent, substantial evidence as the basis for a finding of obscenity was recognized by the U.S. Circuit Court of Appeals, Second Circuit, in United States v. Klaw, 350 F.2d 155 (1965), holding that the trial court should have granted a directed '* * * this court regards the material as revolting and disgusting. But it is the record and not our feelings that must control. Here the jury had no opportunity to judge the exhibits presented to them by any standard other than their own speculation as to 'prurient interest.' If they knew the standard set as a matter of law by other cases, their result might have been different. 'Due process of law' would be a meaningless cliche if the nonsensical trash that is the subject to this prosecution were allowed to be the basis of a conviction by Judge or jury without any proof demonstrating that it has the proscribed effect on any of our citizenry. * * * Having in mind the alternatives of jail or freedom, courts must be aware of the facts of the 'held-not-to-be-obscene' or 'approved' cases, and ensure that the proof is sufficient to allow a fact finder to set this case apart from them. Otherwise it would be altogether too casy for any prosecutor to stand before a jury, display the exhibits involved, and merely ask in summation: 'Would you want your son or daughter to see or read this stuff?' A conviction in every instance would be virtually assured.'

verdict for the defendant in the trial of an obscenity case, when the government failed to present any evidence of the allegedly obscene material's prurient appeal. The government rested its case largely upon the exhibits themselves, insofar as proof of the obscene character of the materials was concerned. Like this court in the case at bar, the federal court in the Klaw case regarded the material in question as revolting and disgusting, saying:

On the other hand, in several recent decisions the federal courts have indicated that evidence of obscenity is not necessary under the Roth rule if the materials in question constitute 'hard-core pornography.' For instance, in United States v. Wild, 422 F.2d 34 (1969), the U.S. Circuit Court of Appeals for the Second Circuit distinguished its earlier decision in the Klaw case, supra, and said:

'There is no conceivable claim that these color slides have redeeming social value, and none was made. With regard to the other two elements which the Supreme Court has specified must be present for a finding of obscenity--appeal to the prurient interest of the group likely to receive the allegedly obscene material and patent offensiveness under contemporary community standards--the appellants argue that the Government introduced no evidence other than presenting the slides themselves. More specifically, appellants contend that the slides were designed for a male homosexual audience and that the jury was unable to decide whether there was an appeal to the prurient interest of that group without expert testimony.

'We do not believe, as appellants in effect urge, that the Constitution requires the Government to produce expert testimony about appeal to the prurient interest and contemporary community standards in every obscenity case. Compare Frankfurter, J., concurring in Smith v. California, 361 U.S. 147, 164--167, 80 S.Ct. 215, 4 L.Ed.2d 205, with Harlan, J., concurring in part and dissenting in part, Id., at 170--171, 80 S.Ct. 215. It is clear that such testimony can be necessary on certain facts such as those presented in United States v. Klaw, 350 F.2d 155 (2nd Cir.1965), heavily relied on by appellants. However, the present case presents no such peculiar problems of proof.

'We hold that in cases such as this the trier of fact needs no expert advice. As noted above, there was no claim of redeeming social importance. Cf. United States v. A Motion Picture (Film) Entitled 'I am...