Little River Theatre Corp. v. State Ex Rel. Hodge

• Decision Date: 20 January 1939
• Parties: LITTLE RIVER THEATRE CORPORATION et al. v. STATE ex rel. HODGE.
• Court: Florida Supreme Court

185 So. 855

135 Fla. 854

LITTLE RIVER THEATRE CORPORATION et al. v. STATE ex rel. HODGE.

Florida Supreme Court

January 20, 1939

Suit by the State, on the relation of Schuyler C. Hodge, against the Little River Theatre Corporation and others, to suppress an alleged public nuisance, consisting of operation of 'bank night.' From a temporary restraining order, defendants appeal.

Affirmed. Appeal from Circuit Court, Dade County; Paul D Barns, Judge.

COUNSEL

Loftin Stokes & Calkins, of Miami, for appellants.

Whitfield & Whitfield, of Tallahassee, and Albert B Bernstein, of Miami, for appellee.

OPINION

PER CURIAM.

This case is here on appeal from a temporary restraining order enjoining or restraining the defendants from operating a plan or scheme commonly known as 'Bank Night' in the City of Miami, Dade County, Florida. The suit was brought under Sections 5029 and 5030, C.G.L., by Schuyler C. Hodge, a citizen and resident of Dade County, Florida, of many years standing. An answer was filed and the right of the plaintiff below to maintain the suit at bar was not questioned. This Court in construing Sections 5029 and 5030, supra, held that a private citizen of the county affected may institute a suit in equity in the name of the State to suppress a public nuisance, without first requesting the public officers thereof to bring suit. See Pompano Horse Club v State, 93 Fla. 415, 111 So. 801, 52 A.L.R. 51. We therefore hold that the suit at bar was properly brought.

Counsel for the respective parties are in substantial accord as to the facts here involved, viz.: The Little River Theatre Corporation operates a theatre in the suburbs of the City of Miami. The general public and persons buying tickets at the theatre are asked to register their names in a book in the lobby of the theatre, and upon registering are assigned numbers, which numbers are also written in the registration book. On certain nights known as 'bank nights' numbers corresponding to the persons so registered are placed in a drum on the stage of said theatre, when the drum is spun and a blind folded child selects a number therefrom. The registration books are consulted and the person assigned said number so selected by the blind folded child is declared the winner. The winner's name is announced and three minutes is permsitted for the winner to present himself on the inside of the theatre and claim the prize, but he is not required to have a ticket to enter the theatre when his name is called. The prizes range from $50 to $300 and are actually given away. If the prize winner is not in the theatre when the winning number is drawn, or if he does not come into the theatre within three minutes thereafter, the prize is not awarded but the amount thereof is added to the amount to be given away at the next bank night drawing. Five out of seven prize winners paid admission to the theatre when the winning numbers were drawn, while two out of the seven winners were outside the theatre but in the immediate vicinity and came inside the theatre and claimed the prize within three minutes after the number was announced. A person may participate in the drawing without purchasing a ticket to the theatre and the prize is awarded on each Tuesday and Friday nights. People are attracted to the theatre on 'bank nights' and gather in an adjoining vacant lot within a radius of two or three blocks of the theatre and can present themselves if their names are called. The prize may be claimed by any person who registers and whose name is drawn and called, whether such person has or has not ever been in the theatre or has or has not ever purchased a ticket to the theatre. The same picture is exhibited on two successive nights, one of which is 'bank night', and the attendance at said theatre on 'bank night' was anywhere from two to seven times more than the attendance on the other night when the same picture was shown. The plan of 'bank night' advertised the theatre and increased its business.

The question for decision here is: Does the above statement of facts constitute a lottery in violation of Sections 7667 and 7669, and, if so, may the same be enjoined as a nuisance and is it prohibited by Section 7832, C.G.L.? The lower court answered this question in the affirmative.

Section 7667, C.G.L., provides:

'7667. (5509.) Setting up lottery prohibited.--It shall be unlawful for any person, firm, or corporation in this State to set up, promote or conduct any lottery for money or for anything of value; or by means of any lottery to dispose of any money or other property of any kind whatsoever; or to conduct any lottery drawings for the distribution of prizes by lot or chance, or to advertise any such lottery scheme or device in any newspaper or by circulars, posters, pamphlets or otherwise; or to sell, or to offer for sale, or to transmit, by mail or otherwise, any lottery tickets, coupons, or share in or fractional part of any lottery ticket, share or coupon; or to attempt to operate, conduct or advertise any lottery scheme or device; or to have in his, their or its possession any lottery wheel, implement or device whatsoever for conducting any lottery or scheme for the disposal by lot or chance of anything of value; or to have in his, their or its possession any lottery ticket, or evidence of any share or right in any lottery ticket, or in any lottery scheme or device; or to have in his, their or its possession any lottery advertisement, circular, poster or pamphlet, or any list or schedule of any lottery prizes, gifts or drawings, or to aid or assist in the setting or conducting of any lottery, either by writing, printing or otherwise; or to be interested in, or connected in any way with any lottery or lottery drawing; or to aid or assist in the sale, disposal or procurement of any lottery ticket, coupon, share or right to any drawing therein. Any violation of this section shall be a felony, and shall be punished by a fine of not less than five hundred dollars, nor more than five thousand dollars, or by imprisonment in the State penitentiary not less than one year, or more than ten years.'

Likewise, Section 7669, C.G.L., provides:

'7669. (5511.) Plays at games of chance by lot.-- Whoever sets up, promotes or plays at any game of chance by lot or with dice, cards, numbers, hazard or any other gambling device whatever for, or for the disposal of money or other thing of value or under the pretext of a sale, gift or delivery thereof, or for any right, share or interest therein, shall be fined not exceeding one hundred dollars, or be imprisoned not exceeding three months.'

And Section 7832, C.G.L., provides:

'7832. (5639.) 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 section 7817, or shall be frequented by the class of persons mentioned in section 7655, or any house or place of prostitution, assignation, lewdness or place or building where games of chance are engaged in in violation of law or any place where any law of the State of Florida is violated, shall be deemed guilty of a nuisance, and the building, erection, place, tent or booth and the furniture, fixtures and contents are also declared a nuisance, and all such persons, places, shall be abated and enjoined as provided in Article 19, Chapter X, Title III, Second Division of these Compiled General Laws.'

Section 7667, supra, makes it unlawful for persons, firms or corporations to conduct any lottery for money or other thing of value, or by means of a lottery to dispose of anything of value, or to conduct any lottery, drawings for distribution of prizes, or to advertise any such lottery scheme or device, or to sell or offer for sale any lottery tickets or coupons or to attempt to do any such things, or to have in one's possession any lottery wheel or any lottery ticket, or any lottery advertisement or any list of lottery prizes, or to assist in conducting any lottery, or to be interested in any way with any lottery or lottery drawing, or to assist in the sale, etc., of any lottery tickets. The language employed by the Legislature is broad and its objective, no doubt, was to render unlawful lotteries, as above pointed out. From the admitted facts the appellants advertised their plans, schemes or devices by circulars, posters, pamphlets and placards and requested the public generally to register their names in a book kept at the theatre and a number was assigned to the name at the time of registration and the number was placed in a drum or device, and on 'bank night' a girl blind folded took from the drum a number, and the number was used to determine the winner of the prize at the drawing. See Lee v. City of Miami, 121 Fla. 93, 163 So. 486, 101 A.L.R. 1115.

It becomes pertinent to determine, in the consideration of the statutes, supra, what is meant by a lottery. It may be well to consider the rulings of courts of last resort of other States having statutes similar to Sections 7667 and 7669, C.G.L., supra. In Grimes v. State, 235 Ala. 192, 178 So. 73, we find a lottery statute in many respects similar to Sections 7667 and 7669, supra, and that Court in holding 'bank nights' unlawful, in part, said:

'The legality of 'Bank Nights,' at motion-picture theaters, to say nothing of other devices so prevalent at this time, is of such general interest, both to the motion-picture industry and to the public, that this court deems it proper to give a brief but definite statement of the law sustaining the decision of the Court of Appeals now under review.

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