Levy v. Collins

• Decision Date: 02 July 1940
• Citation: 143 Fla. 619,197 So. 522
• Parties: LEVY v. COLLINS.
• Court: Florida Supreme Court

197 So. 522

143 Fla. 619

LEVY v. COLLINS.

Florida Supreme Court, Division A.

July 2, 1940

Rehearing Denied Aug. 2, 1940.

Suit by R. W. Levy against Kenneth Collins, as tax collector of Leon County, to enjoin collection of a license tax for operating for profit a place where dancing is engaged in. From a decree of dismissal, plaintiff appeals.

Affirmed.

On Petition for Rehearing. Appeal from Circuit Court, Leon County; J. B. Johnson, Judge.

COUNSEL

H. O Pemberton, of Tallahassee, for appellant.

George Couper Gibbs, Atty. Gen., and Nathan Cockrell, Asst. Atty Gen., for appellee.

OPINION

PER CURIAM.

Appellant exhibited his bill of complaint in the Circuit Court of Leon County seeking to enjoin the collection of the license tax imposed by Section 23 of Chapter 18011, Acts of 1937.

The bill alleges:

'Plaintiff operates a place of business on Lake Bradford, near Tallahassee in Leon County, Florida, at which he maintains a small retail store and in the same building therewith, an open air pavilion in which is placed an electric phonograph that may be operated by any person who deposits a nickel in the slot provided for that purpose. The pavilion is furnished free for the use of the public and space therein is available for dancing if anyone cares to do so. Plaintiff also maintains as a part of the said business dressing rooms for bathers, a dock or pier, diving floats and other facilities for bathers, and tables with sheds over them for the use of those who care to prepare or eat their lunch on the premises. No charge of any kind is made for admission or for the use of any of the facilities above mentioned except that a charge is made for the privilege of bathing. The facilities described, including the pavilion where those who care to do so may dance, are provided as essential features or facilities of a place of recreation and in recognition of the fact that a large proportion of those who patronize places of recreation desire to have available a place where they can dance if they choose to do so, and that some facilities for dancing are a practical necessity for the operation of the usual place of recreation. The provisions for dancing are not operated for a profit except as the business profits indirectly through the additional patronage that such facilities attract or encourage.'

The bill also alleges that plaintiff pays other licenses required under other statutes.

Motion to dismiss was granted and appeal perfected.

The case is ruled by the opinion and judgment in the case of Pellicer v. Sweat, 131 Fla. 60, 179 So. 423.

The decree is affirmed.

So ordered.

Affirmed.

TERRELL, C.J., and BUFORD and THOMAS, JJ., concur.

WHITFIELD, J., concurs in opinion and judgment.

BROWN and CHAPMAN, JJ., not participating as authorized by Section 4687, Compiled General Laws of 1927, and Rule 21-A of the Rules of this Court.

On Petition for Rehearing.

BUFORD Justice.

In petition for rehearing it is urged that this case should not be disposed of on authority of Pellicer v. Sweat, 131 Fla. 60, 179 So. 423, 425, because in the Pellicer case the constitutionality of Section 23 of Chapter 18011, Acts of 1937, was challenged, while in the case at bar the application of that statute to the place of business conducted by the appellant is challenged.

In the Pellicer case we said:

'The evidence clearly shows the petitioner's place of business is not 'a boarding house, or lodging house or hotel.'

'Petitioner states she is running a dance place and place to eat, and a few rooms to rent; sells drinks, and has a coinoperated music box in which persons may put coins and either dance to the music or sit and listen to the music. While no charge is made for dancing, the dancers pay for the music; and soft drinks and beer and meals are on sale, and four rooms are for rent. Obviously, the place is operated for a profit, and dancing is engaged in there. The place is not shown to be a boarding house or a lodging house or a hotel.

'The exemption of hotels and of places operated as theaters and moving picture shows only, does not unjustly discriminate against the petitioner's business, since her business is peculiar and is clearly defined and justly classified; it being essentially unlike the licensed business of hotels, boarding houses and lodging houses, and theaters and moving picture shows.

'The classification being a legal one, the amount of the license tax is for statutory determination under the taxing and police power of the state. The amount of the tax does not appear to be grossly excessive for the particular business regulated in the interest of the public welfare.'

It is the contention of the appellant that the section of the statute supra, which reads:

'Section 23. Every person who operates for a profit any place where dancing is engaged in or entertainment such as variety programs or exhibitions, is provided, shall pay a license tax of $100.00. The license required by this section shall be in addition to any other license required by law and the operation of such a place as herein described shall not be construed to be incidental to some other business; provided, that a license may be issued for one night only, upon the payment of twenty-five dollars, but in such cases the Tax Collector must write across the license the words, 'Good for one night only.' Provided further, that this section shall not apply to entertainments given for charitable purposes, the proceeds of which are given to local charities; provided, further, that this section shall not apply to any place operated as a theater or moving picture show only; provided, further, that this Section shall not apply to hotels paying an occupational tax as provided for...