Health Clubs, Inc. v. State ex rel. Eagan, 76--1446
| Decision Date | 12 November 1976 |
| Docket Number | No. 76--1446,76--1446 |
| Citation | 338 So.2d 1324 |
| Parties | HEALTH CLUBS, INC., a Florida Corporation, et al., Appellants, v. STATE of Florida ex rel. Robert EAGAN, as State Attorney for the Ninth Judicial Circuit, Appellees. |
| Court | Florida District Court of Appeals |
David A. Demers of the Law Offices of Robert W. Pope, St. Petersburg, for appellants.
Robert L. Shevin, Atty. Gen., Tallahassee, and Basil S. Diamond, Asst. Atty. Gen., West Palm Beach, and Rom W. Powell, Asst. State Atty., Orlando, for appellees.
This is an interlocutory appeal from an order of the Circuit Court of Orange County denying appellants' motion to dismiss.
The State of Florida filed an action to abate or enjoin a public nuisance alleging that the trial court had jurisdiction pursuant to Sections 823.05, 60.05, 60.06 and 796.07, Florida Statutes (1975). It was alleged that the defendant, Health Clubs, Inc., was a Florida corporation purportedly engaged in a health club business for men known as the 'Garden of Paradise' located at 2477 South Orange Blossom Trail, Orange County, Florida. Defendants Raymond Cataldo, Ioannis Diamandopolous and Philip Ranson were alleged to be the officers and directors of the corporate defendant. Defendants Stephen Cataldo and Michael Gort were alleged to be employees of the corporate defendant or to have taken an active part in the operation of the business. The complaint then contained the following allegations:
'6. On the 20th day of November, 1975, and continuously up to and including the date of the filing of this Complaint, the Defendants have maintained and operated, or permitted to be maintained and operated, the aforesaid premises and business for the purpose of lewdness, in that the Defendants have employed or permitted certain female attendants to solicit and to perform certain services for male customers within the said premises for a monetary fee. These services consisted of so-called 'body shampoos', wherein the female attendants either partially or fully disrobed and washed the male customer's nude body with sponge, soap and water, and/or consisted of so-called 'hand relief', wherein the female attendants masturbated the male customers.
7. By reason of the above-described conduct on the part of the Defendants and those acting in concert with them, the business and premises known as the 'Garden of Paradise' is a place of lewdness, which tends to annoy the community and is manifestly injurious to the morals or manners of the people of the County of Orange, State of Florida, and therefore constitutes a public nuisance. Unless the Defendants are restrained by order of this Court, they and those persons acting in concert with them will in the future persist in maintaining and operating, or permitting to be maintained and operated a place of lewdness and a public nuisance, in violation of the Laws of the State of Florida and to the irreparable damage of the people of the County of Orange, State of Florida.'
In response to the complaint, appellants filed a motion to strike and a motion to dismiss. The trial court granted the motion to strike and in its order stated:
'The defendants' motion to strike that portion of paragraph 6 of the complaint which states that: 'These services consisted of so-called 'body shampoos' wherein a female attendant either, partially or fully disrobed, and washed the male customer's nude body with sponge, soap and water', is granted commencing with the word 'wherein' and ending with the word 'water', since there appears to be no prohibition against such activity within the statutes or the case law of the State of Florida.'
The trial court then denied appellants' motion to dismiss the complaint. We must reverse. After removing the language stricken by the trial court, the last sentence in paragraph 6 of the complaint now reads:
'These services consisted of so-called 'body shampoos', And/or consisted of so-called 'hand relief' wherein the female attendants masturbated the male customers.' (emphasis supplied)
The use of the combined conjunctive and disjunctive phrase 'and/or' has gutted the State's complaint. Assuming, as found by the trial judge, that there is no prohibition against 'body shampoos' the complaint now alleges that the services complained of consisted of either innocent acts or wrongful acts. We can express our disapproval of this type of pleading in no better words than those written 44 years ago by Justice Terrell:
Cochrane v. Florida East Coast Ry. Co., 107 Fla. 431, 145 So. 217, 218 (1932).
Were it not for the State's careless use of the phrase 'and/or,' the complaint would have been sufficient to withstand a motion to dismiss. Section 823.05, Florida Statutes (1975), provides:
'Places declared a nuisance; may be abated and enjoined.--Whoever shall erect, establish, continue, or maintain, own or lease any building, booth, tent or place which tends to annoy the community or injure the health of the community, or become manifestly injurious to the morals or manners of the people as described in § 823.01, or shall be frequented by the class of persons mentioned in § 856.02, or any house or place of prostitution, assignation, Lewdness or place or building where games of chance are engaged in violation of law or any place where any law of the state is violated, shall be deemed guilty of maintaining a nuisance, and the building, erection, place, tent or booth and the furniture, fixtures and contents are declared a nuisance. All such places or persons shall be abated or enjoined as provided in §§ 60.05 and 60.06. (emphasis supplied)
Section 60.05(1),...
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