Health Clubs, Inc. v. State ex rel. Eagan, s. 77-2104
| Decision Date | 07 November 1979 |
| Docket Number | Nos. 77-2104,s. 77-2104 |
| Citation | 377 So.2d 28 |
| Parties | HEALTH CLUBS, INC., a Florida Corporation; Raymond Cataldo; Ioannis Diamandopolous; Stephen Cataldo and Michael Gort, Appellants, v. The STATE of Florida ex rel. Robert EAGAN, as State Attorney for the Ninth Judicial Circuit of Florida, Appellee. Ioannis DIAMANDOPOLOUS, Appellant, v. The STATE of Florida ex rel. Robert EAGAN, as State Attorney for the Ninth Judicial Circuit of Florida, and Health Clubs, Inc., et al., Appellees. Stephen CATALDO, Appellant, v. The STATE of Florida ex rel. Robert EAGAN, as State Attorney for the Ninth Judicial Circuit of Florida and Health Clubs, Inc., et al., Appellees. /NT4-47, 77-2421/NT4-47A and 77-2423/NT4-47B. |
| Court | Florida District Court of Appeals |
Robert W. Pope of Law Offices of Robert W. Pope, P. A., St. Petersburg, for appellants.
Robert Shevin, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, and Rom W. Powell, Asst. State's Atty., Orlando, for appellee, State of Florida ex rel. Robert Eagan.
This is a consolidated appeal from a final judgment abating a public nuisance and from subsequent judgments of contempt. Appellants contend, in part, that the final judgment should be reversed because it enjoins lawful as well as unlawful activity. We agree with this contention. However, we affirm the judgments of contempt.
The amended complaint 1 filed by the State of Florida alleged that the appellants operated a purported health club, i. e. "The Garden of Paradise", "for the purpose of lewdness, in that the defendants have employed or permitted certain female attendants to masturbate or perform fellatio upon male customers not their spouses for a fee within said premises." The complaint further alleged that the health club constituted a nuisance and sought to have it abated by a permanent injunction.
The trial court agreed with the State and enjoined the defendants from operating a health club in which nude or seminude persons of the opposite sex touched each other for any purpose, from advertising that the health club has as its purpose the relieving of sexual tension, from permitting any sexual activities on the business premises, and from providing female attendants for male customers. The Court also ordered that female attendants remain in the lounge near the front entrance and utilize an adjacent restroom when male customers are in attendance, and that separate days be established for male and female customers.
While the appeal from this final judgment was pending, the lower court found the appellants Ioannis Diamandopolous and Stephen Cataldo in contempt for violating it. The violation consisted of their permitting a female attendant to administer a topless "body shampoo" to a male customer.
Although we concur with the State's contention that the particular acts alleged in its amended complaint were subject to be enjoined, the injunction granted by the lower court was overbroad. As we stated in the previous opinion dealing with this case, "Where illegal conduct which has been decreed to constitute a public nuisance is separable from legal conduct within a business enterprise, only the illegal conduct may be enjoined." Health Clubs, Inc., supra. See also Five Sky, Inc. v. State, 131 So.2d 39 (Fla. 3rd DCA 1961); Fasson v. State, 141 Fla. 367, 193 So. 299 (1940). One can operate a health club which permits commingling of the sexes without allowing lewd activity. The instant...
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