Fillingim v. State

• Decision Date: 08 February 1984
• Docket Number: No. AS-436,AS-436
• Citation: 446 So.2d 1099
• Parties: Richard FILLINGIM, Jesse Herndon, Valynda Rathburn, Lois Kibe, Cynthia Kimbrell and Suzanne Sims, Petitioners, v. STATE of Florida, Respondent.
• Court: Florida District Court of Appeals

Page 1099

446 So.2d 1099

Richard FILLINGIM, Jesse Herndon, Valynda Rathburn, Lois Kibe, Cynthia Kimbrell and Suzanne Sims, Petitioners, v. STATE of Florida, Respondent.

No. AS-436.

District Court of Appeal of Florida First District.

Feb. 8, 1984.

Rehearing Denied Feb. 8, 1984.

James C. Banks, Tallahassee, for petitioners.

Donald S. Modesitt, State Atty., Ted N. Williams, Asst. State Atty., and F.E. Steinmeyer, III of Folsom & Steinmeyer, Tallahassee, for respondent.

ON PETITION FOR WRIT OF CERTIORARI

ERVIN, Chief Judge.

Petitioners, charged with violation of Leon County Ordinance No. 82-32, filed a motion to dismiss, challenging the constitutionality of the ordinance, which was denied by the county court. Pleas of nolo contendere were subsequently entered by petitioners, reserving their rights to appeal the order denying the dismissal. On appeal to the circuit court, the order of the county court was affirmed. They now petition this court for a writ of certiorari, which we deny.

Section 7 of the challenged ordinance prohibits the following types of conduct:

Section 7. Prohibition:

(a) It shall be unlawful for any person to engage in nude or semi-nude entertainment in any commercial establishment at which alcoholic beverages are, or are available to be, sold, dispensed, consumed, possessed or offered for sale or consumption on the premises.

(b) It shall be unlawful for any female person, while on the premises of a commercial establishment at which alcoholic beverages are, or are available to be, sold, dispensed, consumed, possessed or offered for sale or consumption on the premises, to expose to public view that area of the human female breast at or below the areola thereof or to employ any device or covering which is intended to give the appearance of or simulate such areas of the female breast as described herein.

(c) It shall be unlawful for any person, while on the premises of a commercial establishment at which alcoholic beverages are, or are available to be, sold, dispensed, consumed, possessed or offered for sale or consumption on the premises, to expose to public view his or her genitals, pubic area, buttocks, anus or anal cleft or cleavage or to employ any device or covering which is intended to give the appearance of or simulate the genitals, pubic area, buttocks, anus or anal cleft or cleavage.

(d) It shall be unlawful for any person owning, maintaining, operating or leasing any commercial establishment at which alcoholic beverages are, or are available to be, sold, dispensed, consumed, possessed or offered for sale or consumption on the premises to suffer or permit any person on the premises to engage in nude or semi-nude entertainment.

(e) It shall be unlawful for any entertainer, performer or employee, while on the premises of a commercial establishment regulated under this ordinance to dance in such a manner as to simulate sexual activity with any patron, spectator, employee or other person not employed therein.

(f) It shall be unlawful for any entertainer, performer or employee, while on the premises of a commercial establishment regulated under this ordinance, to sit upon or straddle the leg, legs, lap or body of any patron, spectator or other person therein, or to engage in or simulate sexual activity while touching or being touched by said patron, spectator or other person.

(g) It shall be unlawful for any person owning, maintaining, operating or leasing a commercial establishment regulated under this ordinance to suffer or permit any violation of subsections (e) or (f) of this ordinance.

(h) It shall be unlawful for any person, while on the premises of a commercial establishment regulated under this ordinance, to use or be present in areas partitioned or screened from public view that are designed to be occupied together or alone by any person or persons on the premises of such establishment for sexual contact or private dancing performances.

(i) It shall be unlawful for any person owning, maintaining, operating or leasing a commercial establishment regulated under this ordinance to suffer or permit the construction, maintenance or use of areas partitioned or screened from public view that are designed to be occupied together or alone by any person or persons on the premises of such establishment for sexual contact or private dancing performances.

(j) It shall be unlawful for any person owning, maintaining, operating or leasing a commercial establishment regulated under this ordinance to suffer or permit any outside advertisement which encourages, solicits, induces or promotes conduct or activities proscribed by this ordinance in such establishment.

Petitioners challenge the adoption of the ordinance as an invalid exercise of the county's police power, contending, more particularly, that sufficient governmental interests were not advanced in the ordinance to justify infringement of constitutional guarantees of free speech and expression, and that the ordinance was so poorly drafted as to be unconstitutionally overbroad or vague. We reject all these arguments.

The United States Supreme Court's decisions in CALIFORNIA V. LARUE, 409 U.S. 109, 93 S.CT. 390, 34 L.ED.2D 342¹ (1972) and NEW YORK STATE LIQUOR AUTHORITY V. BELLANCA, 452 U.S. 714, 101 S.CT. 2599, 69 L.ED.2D 357² (1981), provide clear-cut authority permitting states to regulate nude entertainment in the exercise of their broad police power, conferred upon them by the Twenty-First Amendment, to control the sale or use of intoxicating beverages within their boundaries. The most significant factor considered by the Court in determining the validity of the states' exercise of power to restrict such conduct is that such regulations do not purport to inhibit topless dancing in "any public place," but only in establishments licensed by the state to serve liquor. ³ The Court has not applied obscenity standards, and has moreover acknowledged that the regulations involved in those cases would proscribe some forms of visual presentation that would not be found obscene. Nevertheless, it has ruled that nude entertainment, carried out on premises licensed for the sale of alcoholic beverages, was conduct which the states were entitled to direct under the Twenty-First Amendment. ⁴

The Twenty-First Amendment to the United States Constitution provides the source of the state's police power of regulation over the distribution or use of intoxicating beverages. We agree with petitioners' argument that the Twenty-First Amendment does not directly confer authority upon municipalities or counties to oversee conduct in licensed beverage premises; that authority is, however, derived from our state's constitution and statutes. See Article VIII, section 2(b) and 5 (as to municipalities) and Article VIII, section 1(f) (as to non-chartered counties), Florida Constitution (1968). Non-chartered counties such as Leon County are vested with broad powers of self-government under section 1(f); the only expressed limitation upon their power to act is that their ordinances be not inconsistent with general or special law, or conflict with a municipal ordinance adopted by a municipality within the county. No one has argued that any municipal ordinance within Leon county conflicts with Ordinance 82-32. Nor do we perceive any inconsistency between the ordinance and general or special law. Admittedly, section 125.01(1)(o ), Florida Statutes, when read without reference to other portions of section 125.01, offers support to petitioners' argument that Leon County is without authority to regulate nude entertainment on licensed beverage premises inside the incorporated areas of the county, in that it empowers counties to "[e]stablish and enforce regulations for the sale of alcoholic beverages in the unincorporated areas of the county pursuant to general law...." (e.s.) When the above subsection is construed in pari materia with other subsections of section 125.01, we find that counties are given broad powers to regulate. For example, section 125.01(1), Florida Statutes, states that "[t]he legislative and governing body of a county shall have the power to carry on county government ... [and] [t]o the extent not inconsistent with general or special law, this power shall include, but shall not be restricted to, the power to:

(t) Adopt ordinances and resolutions necessary for the exercise of its powers and prescribe fines and penalties for the violation of ordinances in accordance with law.

* * *

* * * (w) Perform any other acts not inconsistent with law which are in the common interest of the people of the county, and exercise all powers and privileges not specifically prohibited by law."

We therefore conclude that the ordinance as adopted cannot be considered an ultra vires act of the Leon County Commission. See also Patch Enterprises, Inc. v. McCall, 447 F.Supp. 1075 (M.D.Fla.1978); Board of County Commissioners of Lee County v. Dexterhouse, 348 So.2d 916 (Fla. 2d DCA 1977), approved by the Florida Supreme Court in Martin v. Board of County Commissioners of Lee County, 364 So.2d 449 (Fla.1978).

As did the court in Board of County Commissioners v. Dexterhouse, 348 So.2d 916 (Fla. 2d DCA 1977), we find that the statutory scheme of the state's beverage law does not embrace the area of conduct covered by the Leon County ordinance, and that the ordinance is directed toward the discipline and good order of persons in establishments where alcoholic beverages are, or are available to be, sold, dispensed, consumed, possessed or offered for sale or consumption on the premises, without interfering or conflicting with the state's regulation of the sale of such beverages. See also City of Miami Springs v. J.J.T., Inc., 437 So.2d 200 (Fla. 3d DCA 1983).

We have not ignored petitioners' argument that Dexterhouse has been implicitly overruled by such decisions as Shad v. Borough of Mount Ephraim, 452 U.S. 61, 101 S.Ct. 2176, 68 L.Ed.2d 671 (1981), and Grand Faloon...