Hav-A-Tampa Cigar Co. v. Johnson

• Decision Date: 19 December 1941
• Citation: 5 So.2d 433,149 Fla. 148
• Parties: HAV-A-TAMPA CIGAR CO. v. JOHNSON, Chairman of State Road Department.
• Court: Florida Supreme Court

5 So.2d 433

149 Fla. 148

HAV-A-TAMPA CIGAR CO. v. JOHNSON, Chairman of State Road Department.

Florida Supreme Court

December 19, 1941

Rehearing Denied Jan. 21, 1942.

Appeal from Circuit Court, Hillsborough County; Harry N Sandler, judge.

Whitaker Brothers of Tampa, for appellant.

J. Tom Watson Atty. Gen., Donald Carroll, Asst. Atty. Gen., T. M. Shackleford, Jr., of Tampa, Richard W. Ervin, of Tallahassee, and M. N. Arfaras, of Tarpon Springs, for appellee.

Knight & Green, of Miami, Worth, Bivens & Lively, of Tampa, Julius F. Stone, of Key West, and George Couper Gibbs, of Jackson, as amici curiae.

Statement

The bill of complaint herein alleges:

'That plaintiff has, ever since its establishment, continuously and still is using as a medium of advertising, small signs erected and maintained along the various public highways of the State of Florida, with advertising directing attention of the public to and advertising the cigars manufactured by plaintiff.

'* * * that it has expended and has invested at the present time large sums of money in such signs erected and maintained by it along the various public highways in the State of Florida; that it has spent and has invested large sums of money in the purchase, construction, erection and maintenance of said signs; and likewise it has expended and has invested at the present time large amounts of money in the sites on real estate which it has acquired, either by purchase or lease, whereon said signs are constructed, erected and are being maintained, and said signs constitute, and said sites on said real estate whereon the same are erected and maintained, constitute a most valuable asset of plaintiff, and if the said sings are destroyed or displaced or removed, it would seriously impair and cripple plaintiff's business; that in acquiring the sites where said signs are being maintained, plaintiff selected such sites as would be the most valuable locations for such advertising purposes and at the same time, said sites and signs being maintained by the plaintiff do not in any wise interfere with the view of approaching vehicles, and in no way interfere with the traveling public.

'* * * that Section 9 of Chapter 20446 of the Acts of the 1941 Legislature provides as follows:

"No advertisement, advertising sign or advertising structure shall be constructed, erected, used, operated or maintained:

"(a) Within 15 feet of the outside boundary of a public highway or within one hundred feet of any church, school, cemetery, public park, public reservation, public playground, state or national forest, highway or railroad intersections outside the limits of any incorporated city or town.

"(b) Which involves motion or rotation of any part of the structure or displays intermittent lights;

"(c) Which uses the word 'Stop' or 'Danger', or presents or implies the need of requirement of stopping or the existence of danger, or which is a copy or imitation of official signs;

"(d) Which are placed on the inside of a curve or in any manner that may prevent persons using the highway from obtaining an unobstructed view of approaching vehicles.'

'* * * that the defendant, as Chairman of the State Road Department is clothed with the duty and responsibility of enforcing the provisions of said Chapter 20446 and has construed said Section 9 as prohibiting the erection, maintenance or continuance of any sign within 15 feet of the outside boundary of any public highway, with the exception of such signs as are exempted entirely from the operation of said Act by Section 14 thereof, plaintiff's signs not being within such exemptions.

'* * * that according to the clear unambiguous language of said Section 9, the only signs prescribed thereby from being erected or maintained within 15 feet of the outside boundary of public highways, are such signs only as are described in sub-sections b, c, and d; that none of the signs owned and being maintained by plaintiff are of such character or description as set forth in sub-sections b and c, nor are any of them located at such palce as is described in sub-section d, and therefore, none of the sings owned and maintained by plaintiff fall within the description or definition as set out and specified in said sub-sections b, c, and d, and therefore said signs being maintained by plaintiff are not prohibited or proscribed by the provisions of said Section. The defendant, however, is claiming and insisting that notwithstanding the clear and unequivocal provisions of said Section, that said Section does embrace and cover the signs being maintained by plaintiff and is claiming and insisting that said Section 9 embraces and covers all signs, save and except such signs as are specifically exempted from the operation of said Act by Section 14.

'* * * that it owns real estate sites, either by purchase or lease, in Hillsborough County, Florida, of upwards of 75, whereon it has been for a long number of years and is now maintaining medium sized signs, advertising the cigars manufactured by plaintiff; that it likewise owns, either by purchase or lease, in various other counties of the State, a large number upwards of 500 similar real estate sites on which there is being now maintained similar signs, and which have been so owned and maintained by plaintiff for a long number of years; that most of said signs so owned, operated and maintained by plaintiff, located in Hillsborough County, Florida, as well as in the other counties of said State, are located on sites, that it to say, real estate, owned by purchase or lease by plaintiff, and said signs situated within 15 feet of the outside boundary of a public highway; the situation and location being such, however, as to in no wise obstruct or interfere with the view of approaching vehicles or the traveling public in any way.

'* * * that the defendant has employed and designated a large number of persons to aid and assist him in the carrying out and making effective the provisions of Chapter 20446 of the Acts of the 1941 Legislature; that the defendant has issued definite orders and instructions to all such employees and designated persons to immediately, on the day said Act becomes effective, begin tearing down and removing all signs within 15 feet of the outside boundary of any public highway in the State of Florida, including Hillsborough County, with the exception of such signs as are exempted from the operation of said Act, by Section 14 thereof; that under said instructions and orders so issued, the defendant, through his employees and agents, and persons designated by him will enter upon the private premises of plaintiff and remove and destroy the signs now being maintained by it, on said sites in Hillsborough County, Florida, owned by it and located within 15 feet of the outside boundary of the public highways in said County, unless restrained and enjoined by this Honorable Court; that the defendant is not only threatening to enter upon the premises owned by plaintiff and threatening to destroy and remove its private property without its consent or permission, but actually has issued an order to his employees, servants and designated persons employed by him to aid him in carrying out the provisions of Chapter 20446, to enter upon the premises of all persons, including the plaintiff, who are maintaining signs within 15 feet of the outside boundary of any public highway in the State of Florida (with the exception of such signs as are entirely exempted by said Act by Section 14) immediately upon said Act becoming effective, and plaintiff alleges that the defendant and his employees, agents and designated persons, will so enter upon the private premises of the plaintiff, and will destroy its private property without any right or authority in law, which said act will cause plaintiff to suffer irreparable injury and damage, unless enjoined and restrained by this Honorable Court.

'* * * that the only purpose or use to which it can put said real estate or sites on which said signs are being maintained, is for the purpose it is being used, towit: to maintain sign for advertising purposes.

'* * * that the act of the defendant in entering upon the premises of this plaintiff and destroying its private property would not only be in violation of the plain provisions of Section 9, Chapter 20446, but would also be in direct violation of Section 1 of the Declaration of Rights of the Constitution of the State of Florida, which guarantees to all persons the right of acquiring, possession and protecting property, as well as of Section 12 of the Declaration of Rights of said Constitution of Florida, which guarantees that no person shall be deprived of life, liberty or property without due process of law, nor that private property be taken without just compensation, and also in direct violation of Section 1, Article 14 of the Amendment to the Constitution of the United States, which provides that no State shall deprive any person of life, liberty or property without due process of law.

'* * * that said Act, and particularly Section 9 thereof, does not proscribe or prohibit the signs which are being owned and maintained by plaintiff within 15 feet of the outside boundary of public highways in Hillsborough County, and elsewhere in the State of Florida. Plaintiff further alleges however, that if the court should hold as the defendant has construed Section 9, to mean that all signs are prohibited (save and except those exempted in Section 14), and that said section provides that defendant can enter the premises of plaintiff and destroy his vested property rights, then said Section is invalid, unconstitutional and void for the reason that it amounts to the taking of private property without due compensation; and for the...