Jordan Chapel Freewill Baptist Church v. Dade County

• Decision Date: 22 June 1976
• Docket Number: No. 75--1275,75--1275
• Citation: 334 So.2d 661
• Parties: JORDAN CHAPEL FREEWILL BAPTIST CHURCH, a Florida Corporation, et al., Appellants, v. DADE COUNTY, a political subdivision of the State of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 661

334 So.2d 661

JORDAN CHAPEL FREEWILL BAPTIST CHURCH, a Florida Corporation, et al., Appellants, v. DADE COUNTY, a political subdivision of the State of Florida, Appellee.

No. 75--1275.

District Court of Appeal of Florida, Third District.

June 22, 1976.

Rehearing Denied July 29, 1976.

Joel Hirschhorn, Angus M. Stephens, Miami, for appellants.

Stuart Simon, County Atty., and Richard Dunn, Asst. County Atty., for appellee.

Before BARKDULL, C.J., and HENDRY and NATHAN, JJ.

PER CURIAM.

By this appeal, we are called upon to review the following order confirmed by final judgment entered by the trial court. In said order, the court made certain findings of fact and conclusions of law in denying a permanent injunction. Said order reads in part as follows:

'This is an action for declaratory decree and injunctive relief brought by plaintiff, Jordan Chapel Freewill Baptist Church, Inc., and joined in by thirty-six (36) plaintiff-intervenors (hereinafter referred to along with plaintiff as 'plaintiffs'), which challenges the constitutionality of Dade County Ordinance No. 75--50 (hereinafter referred to as the 'Bingo Ordinance'). ¹ This Court has jurisdiction pursuant to 86.011, Florida Statutes. Pursuant to stipulation of counsel, at least one plaintiff or plaintiff-intervenor has standing to challenge the constitutionality of the ordinance in question. The plaintiff filed a Motion for Temporary Injunction and at a hearing on the motion, Dade County agreed to withhold enforcement of the ordinance in question pending final hearing in this cause.

'The plaintiffs base their claim for relief upon the following grounds among others: that Dade County lacks the legal authority to enact the ordinance; that the ordinance conflicts with and is preempted by state law; that the ordinance was not properly enacted; that the ordinance violates the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution; that the ordinance violates the Due Process Clause of the aforesaid Fourteenth Amendment; and that the ordinance was not a valid exercise of the County police power.

'I. THE ORDINANCE

'The ordinance in question was enacted after the Board of County Commissioners of Dade County determined that:

'. . . present laws governing the operation of bingo games as provided for in Section 849.093, Florida Statutes, are inadequate to ensure that the various charitable, civic, community, benevolent, religious and scholastic organizations receive all the proceeds to which they are entitled under state law; and

'. . . since monies from bingo games are frequently retained illegally or taken out for non-charitable purposes through such ruses as abnormally high rentals and salaries; and

'. . . The Board of County Commissioners wishes to ensure effective enforcement of the above-quoted laws regarding 'bingo games' and to see that the proceeds from such games pass into the hands of legitimate charitable organizations to be used for legitimate charitable purposes, . . .' ²

'The ordinance begins with a section defining some of the more significant terms used therein. It also requires:

'1. All operators of bingo games to obtain a valid permit. Several specific items of information regarding the organization and its bingo operations are required to be disclosed prior to receiving the permit.

'2. Owners of premises and/or lessors who provide space to a bingo operator to obtain a permit. Similar information regarding the organization and benefits received from bingo operations must be supplied prior to issuance of the permit.

'3. Operators to maintain records regarding bingo receipts, prizes, expenses and proceeds.

'4. Certain information regarding identification of the charity, gross receipts, and prize money to be awarded to be posted during each session of bingo.

'5. Specified types of playing materials to be used in bingo games and records of material purchases to be maintained.

'II. DADE COUNTY'S POWER TO ENACT THE ORDINANCE

'Dade County is a constitutional home rule county. Article VIII, Section 11, Florida Constitution. Under this constitutional provision, the electors of Dade County are granted the power to adopt a home rule charter of government for Dade County. 'Dade County's Charter, at Section 1.01A, provides in relevant part:

'The Board of County Commissioners shall be the legislative and governing body of the county and shall have the power to carry on a central metropolitan government. This power shall include but shall not be restricted to the power to:

'21. Exercise all powers and privileges granted to municipalities counties, and county officers by the Constitution and laws of the state, and all powers not prohibited by the Constitution or by this Charter.

'22. Adopt such ordinances and resolutions as may be required in the exercise of its powers, and prescribe fines and penalities for the violation of ordinances.

'23. Perform any other acts consistent with law which are required by this Charter or which are in the common interest of the people of the county.'

'In addition to the above grants of power, Section 1.01B of the Dade County Home Rule Charter provides that enumerated powers include all implied powers necessary and proper to carrying them out. These provisions of the Dade County Charter were expressly validated in Article VIII, Section 6(e) of the 1968 Florida Constitution. There is clear authority in the above-cited sections for Dade County to enact Ordinance No. 75--50.

'There are also other authorities available which authorized Dade County to enact of the bingo ordinance. Section 125.01, Florida Statutes, which establishes the power of legislative bodies in counties, provides that a county shall have the power to:

'(h) Establish, coordinate, and enforce zoning and such business regulations as are necessary for the protection of the public;

'(t) Adopt ordinances and resolutions necessary for the exercise of its power and prescribe fines and penalities 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.'

'Further, pursuant to Article VIII, Section 6(f), Metropolitan Dade County is permitted to exercise all powers conferred upon municipalities by general law. Chapter 166.021 (1) provides:

'As provided in § 2(b), Art. VIII of the state constitution, municipalities shall have the governmental, corporate, and proprietary powers to enable them to conduct municipal government, perform municipal functions, and render municipal services, and may exercise any power for municipal purposes, except when expressly prohibited by law.'

'The allegation in the plaintiffs' complaint which contends that Dade County is without the power to enact the ordinance regulating bingo is unsubstantiated and without merit. Pursuant to the Florida Constitution, the Dade County Home Rule Charter and the Florida Statutes, cited above, Dade County has the power to enact an ordinance regulating the operation of bingo games.

'III. CONFLICT WITH STATE LAW

'The plaintiffs contend that Dade County lacks the authority to enact an ordinance relating to bingo since the state had passed Section 849.093, Florida Statutes, and had thereby preempted the field.

'It is clear that, pursuant to the Florida Constitution, Article VIII, Section 11(5), Dade County has the power to enact legislation, so long as such legislation does not conflict with the Constitution or any applicable general law. Plaintiffs cite Section 849.093, Florida Statutes, a section entitled 'Charitable, nonprofit organizations; certain endeavors permitted' and claim that the Dade County Bingo Ordinance is in conflict with the state statute.

'The word 'conflict' in Article VIII, Section 11(5) has been construed to mean 'contradictory in the sense of legislative provisions which cannot co-exist'. E. B. Elliott Advertising Co. v. Metropolitan Dade County, 425 F.2d 1141, 1150 (5th Cir. 1970). State ex rel. Dade County v. Brautigam, 224 So.2d 688 (Fla.1969). Legislative provisions are inconsistent if, in order to comply with one provision, a violation of the other is required. In the E. B. Elliott Advertising Co. case, the sole test of conflict for purposes of preemption is the Impossibility of co-existence of the two laws. Courts are therefore concerned with whether compliance with a County ordinance Requires a violation of a state statute or renders compliance with a state statute impossible. In Elliott, a federal court, applying state law, found no conflict between a state statute and a more stringent Dade County ordinance Both of which regulated the distance an outdoor sign must be set back from a highway. In Elliott, state law required at least a 15 foot set back and the County ordinance required at least a 200 foot set back. The test to be met in that case was whether it was possible to comply with the County ordinance without violating the state statute.

'A similar situation is presented in the case before the Court. The state law permits certain charitable, nonprofit or other organizations to conduct bingo games only if certain conditions set forth in the section are met. The purpose and effect of Section 849.093 'is merely to eliminate bingo from the gambling chapter When played within the limits of the statute'. Perlman v. State, 269 So.2d 385, 387 (Fla.4th Dist. 1972). The regulations provided by the state constitute minimum regulations. This Court has not found, and the plaintiff has not cited any language in the statute which can be deemed a prohibition on additional stricter regulations by local government agencies, such as are contained in the Dade County ordinance.

'The Dade County Bingo Ordinance merely supplements the state statute. As in Elliott, supra, it is evident that compliance with the County ordinance is possible without violating state...