Florio v. State ex rel. Epperson, 1215

• Citation: 80 A.L.R.2d 1117,119 So.2d 305
• Decision Date: 06 April 1960
• Docket Number: No. 1215,1215
• Parties: Robert FLORIO and Fran Florio, d/b/a Ralston Beach; H. 'Stew' McDonald, d/b/a Stew's Ski School, and Tampa Ski-Bees, an unincorporated association, Appellants, v. STATE of Florida ex rel. A. L. EPPERSON et al., Appellees.
• Court: Court of Appeal of Florida (US)

Page 305

119 So.2d 305

80 A.L.R.2d 1117

Robert FLORIO and Fran Florio, d/b/a Ralston Beach; H. 'Stew' McDonald, d/b/a Stew's Ski School, and Tampa Ski-Bees, an unincorporated association, Appellants, v. STATE of Florida ex rel. A. L. EPPERSON et al., Appellees.

No. 1215.

District Court of Appeal of Florida, Second District.

April 6, 1960.

Paul B. Johnson and H. Eugene Johnson, Tampa, for appellants.

James M. McEwen, State Atty., Tampa, for appellees.

KANNER, Judge.

The parties will be referred to as they appeared in the court below. The cause here on appeal was instituted by the state attorney of Hillsborough County under the provisions of sections 64.11, ¹ 823.01, ² and 823.05, FLORIDA STATUTES, F.S.A³., upon the relation of certain complaining property owners. Finding that certain activities conducted and maintained from the place of business of the defendants constituted a nuisance in the community as denounced by the statutes, the court entered decree permanently enjoining and restraining them from these pursuits at the place where they had been conducted.

After the complaint had been filed, the defendants moved to dismiss, raising the question as to whether the complaint stated a cause of action under section 64.11 and section 823.05, Florida Statutes, F.S.A., which motion the court denied. Thereupon an answer to the complaint was filed.

Factually, it appears that the complaining parties are riparian owners of property around and running into Egypt Lake, a lake of approximately 75 acres. The defendants, Robert and Fran Florio, own and operate as a public beach a 29 acre area on Egypt Lake known as Ralston Beach. The Florios lease a portion of this land to one of the defendants, McDonald, who for two years had been operating a water skiing school on Egypt Lake. Another defendant, the Tampa Ski Bees, is an unincorporated association having members who ski on the lake.

The plaintiffs as well as the defendants have engaged in water skiing on the lake. The plaintiffs objected to such things as noise, annoyance, and interference with the rights of residents of the community and their visitors in their use of the lake, erosion of the beaches, and domination of the lake by the defendants through the use of high powered tow boats and through negligent and reckless skiing to the extent that ordinary use and occupancy of the lake was rendered dangerous and unsafe for fishing, swimming, and skiing, thus resulting in a dangerous condition annoying and injuring the health of the community and physically jeopardizing plaintiffs and their children in use of their own property. They also objected to a forty-five minute ski show presented on Sunday afternoons by the Ski Bees for patrons of Ralston Beach. Thus, in this controversy, the interests of the plaintiffs as residents and riparian owners are opposed to the much more extensive and essentially commercialized interests of the defendants, although defendants assert that their interests are legitimate and good.

It was found and held by the chancellor after hearing that defendants, Robert and Fran Florio, doing business as Ralston Beach, had been leasing space on Egypt Lake to H. 'Stew' McDonald, doing business as Stew's Ski School, and to the Tampa Ski Bees, an unincorporated association; that the defendants had allowed and participated in water skiing to such an extent that their activities interfered with the free use, occupancy, possession, and enjoyment by the plaintiffs of their own property; that these activities annoyed the community around Egypt Lake and had rendered dangerous and uncomfortable the ordinary use and occupancy of the lake by the parties plaintiff and their friends; that the defendants maintained an activity and project too big for Egypt Lake; that defendants' activities constituted a nuisance; and that their use of the lake had, in effect, prevented peaceful and comfortable use by the plaintiffs of their own property and of the lake.

A decree was then issued by the court enjoining the skiiing operations of the defendants. Paragraph one of that order pertained to the finding that the defendants maintained a nuisance subject to injunction. Paragraph two enjoined the Florios from leasing their property known as Ralston Beach, or any part of it, to the other defendants for the purpose of operating a ski school or for the purpose of skiing. Paragraph three enjoined the defendant, McDonald, from using Egypt Lake for operation of a ski school, including skiing on the lake. Paragraph four enjoined the Tampa Ski Bees, an unincorporated association, from further use of Egypt Lake for the purpose of skiing.

The testimony clearly, convincingly, and satisfactorily established that the activities and conduct of the defendants resulted in physical dangers and hazards to the resident home owners and renters, their children and visitors, in the use of the lake; that there was usurpation, deprivation, and unreasonable interference with the use of the lake for fishing, swimming, skiing, and boating; that there were damages to the shores through erosion; that there were also debris, mud, and grass washed and thrown on the beaches; and that such conduct created and caused a continued annoyance and discomfort to the community around the lake. This is not a complaint between neighbor and neighbor but one created through wrongful conduct of the defendants that has seriously affected the entire lake community. As the chancellor succinctly commented, 'the Court further finds that the organization, Tampa Ski-Bees and H. Stew McDonald, d/b/a Stew's Ski School, maintain an activity and project which are too big for Egypt Lake. * * *' Unquestionably the evidence sustains the findings of fact of the chancellor and his determination that a nuisance was created and maintained in violation of the statutes.

The first of defendants' three appeal points inquires whether a cause of action was stated by the complaint. After careful consideration we answer this question in the affirmative, deeming it unnecessary to elaborate.

Under their second appeal point the defendants raise the issue of whether the chancellor erred in allowing suit against an unincorporated association, the Tampa Ski Bees, and in entering a decree injunctively restraining that association from using Egypt Lake for water skiing.

We may comment in this connection that the defendant, the Tampa Ski Bees, was sued only in its association name, to wit, 'Tampa Ski-Bees, an unincorporated association.' No individual member was made a party defendant. The answer filed, as it concerned this defendant, was on its behalf under the designation quoted and did not name and represent any individual members. This point was not raised in the lower court but is urged here for the first time. The injunctive decree of the court, which is in personam in nature, has the effect of prohibiting all members of this unincorporated association from skiing on Egypt Lake, even though these individual members were not served and were not brought into the suit as parties defendant. The plaintiffs argue that ...