Orlando Sports Stadium, Inc. v. State ex rel. Powell, 41233

• Decision Date: 05 April 1972
• Docket Number: No. 41233,41233
• Parties: ORLANDO SPORTS STADIUM, INC., a Florida corporation, et al., Appellants, v. The STATE of Florida ex rel. Rom W. POWELL, as County Solicitor for Orange County, Florida, and Robert Eagan, as State Attorney for the Ninth Judicial Circuit of Florida, Appellees.
• Court: Florida Supreme Court

Page 881

262 So.2d 881

ORLANDO SPORTS STADIUM, INC., a Florida corporation, et al., Appellants, v. The STATE of Florida ex rel. Rom W. POWELL, as County Solicitor for Orange County, Florida, and Robert Eagan, as State Attorney for the Ninth Judicial Circuit of Florida, Appellees.

No. 41233.

Supreme Court of Florida.

April 5, 1972.

Rehearing Denied June 28, 1972.

W. F. Simonet, of Fishback, Davis, Dominick & Simonet, Orlando, for appellants.

Robert L. Shevin, Atty. Gen., and Daniel S. Dearing, Chief Trial Counsel, Tallahassee, for appellees.

ADKINS, Justice.

This is an interlocutory appeal from the Circuit Court of Orange County, Florida, having been transferred to this Court from the District Court of Appeal, Second District.

The State of Florida upon the relation of Powell, the County solicitor, and Eagen, the State Attorney, filed an amended complaint seeking to abate or enjoin a public nuisance pursuant to Fla.Stat. (1970) Chapters 823 and 60, F.S.A. It was alleged that defendants Ashlock and wife were the owners of certain land on which a building known as Orlando Sports Stadium was situated. The defendant Orlando Sports Stadium, Inc., operated the Orlando Sports Stadium. The amended complaint then contained the following allegations:

'5. On June 6, 1970, and at divers times thereafter up to and including December 29, 1970, said premises were visited by narcotic and other drug users for the purpose of unlawfully using hallucinogenic drugs, barbiturates, central nervous stimulants, amphetamines, narcotic drugs, habit forming drugs as described in Chapters 398, 404 or 500, Florida Statutes 1970.

'6. The matters and things alleged in paragraph 5 above constitute a public nuisance, which public nuisance will persist in the future unless abated or enjoined by this Court.'

By motion to dismiss, defendants attack the constitutionality of Chapters 823 and 60 as applied to them in this case.

Fla.Stat. § 823.05, F.S.A., provides, inter alia, that

'Whoever shall erect, establish, continue, or maintain, own or lease . . . 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.'

Fla.Stat. § 823.10, F.S.A., reads as follows:

'Any store, shop, warehouse, dwelling house, building, vehicle, ship, boat, vessel, aircraft, or any place whatever, which is visited by narcotic or other drug users for the purpose of unlawfully using hallucinogenic drugs, barbiturates, central nervous stimulants, amphetamines, narcotic drugs, habit-forming drugs or any other drugs as described in chapters 398, 404 and 500, Florida Statutes, or which is used for the illegal keeping, selling, or delivering of the same, shall be deemed a public nuisance. No person shall keep or maintain such public nuisance or aid and abet another in keeping or maintaining such public nuisance.'

Fla.Stat. § 60.05(1), F.S.A., reads as follows:

'When any nuisance as defined in § 823.05, exists, the state attorney, county solicitor, county prosecutor, or any citizen of the county may sue in the name of the state on his relation to enjoin the nuisance, the person, or persons maintaining it and the owner or agent of the building or ground on which the nuisance exists.'

Fla.Stat. § 398.14, F.S.A., provides:

'Any store, shop, warehouse, dwelling house, building, vehicle, boat, aircraft, or any place whatever, which is resorted to by narcotic drug addicts for the purpose of using narcotic drugs or which is used for the illegal keeping or selling of the same, shall be deemed a public nuisance. No person shall keep or maintain such public nuisance.'

Rule 1.110(b), FRCP, 30 F.S.A., requires that, to state a cause of action, a complaint must contain 'a short and plain statement of the ultimate facts showing that the pleader is entitled to relief,' and 'a demand for judgment for the relief to which he deems himself entitled.'

For the purposes of the motion to dismiss for failure to state a cause of action, allegations of the complaint are assumed to be true and all reasonable inferences are allowed in favor of the plaintiffs' case. Popwell v. Abel, 226 So.2d 418 (Fla.App.4th, 1969); Russell v. Community Blood Bank, Inc., 185 So.2d 749 (Fla.App.2d, 1966); Simon v. Tampa Electric Company, 202 So.2d 209 (Fla.App.2d, 1967).

In the case Sub judice, for the purposes of the motion to dismiss, it is admitted that on June 6, 1970, and at divers times thereafter up to and including December 29, 1970, the premises in question were visited by narcotic and other drug users for the purpose of unlawfully using hallucinogenic drugs, barbiturates, central nervous stimulants, amphetamines, narcotics drugs, habit forming drugs as described in Fla.Stat. Ch. 398, F.S.A., the Uniform Narcotic Drug Law; Ch. 404, the Florida Drug Abuse Law; or Ch. 500, the Food, Drug and Cosmetic Law. It is also alleged that this conduct is a public nuisance and will persist in the future unless abated by this Court.

Appellants first say that Fla.Stat. §§ 60.05, 823.05 and 823.10, F.S.A., quoted above, do not satisfy constitutional requirements of due process because they are not sufficiently explicit in their description of the act, conduct, or conditions required or forbidden and do not describe the elements of the offense with reasonable certainty. The wording of paragraph 5 of the amended complaint, quoted above, is neither vague nor ambiguous and sufficiently puts defendants on notice of the nuisance use of their premises.

A public nuisance violates public rights, subverts public order, decency or morals, or causes inconvenience or damage to the public generally. See 23 Fla.Jur., Nuisances, § 6; 18 F.L.P., Nuisances, § 49. The Legislature has broad discretion to designate a particular activity to be a public nuisance. Pompano Horse Club v. State, 93 Fla. 415, 111 So. 801, 52 A.L.R. 51 (1927). In the exercise of its police power the State has authority to prevent or abate nuisances, for police power is the sovereign right of the State to enact laws for the protection of lives, health, morals, comfort and general welfare. Holley v. Adams, 238 So.2d 401 (Fla.1970).

It is not possible to define comprehensively 'nuisances' as each case must turn upon its facts and be judicially determined. See McQuillan Municipal Corporations (3rd Ed.) § 2499; City of St. Petersburg v. Calbeck,114 So.2d 316 (Fla.App.2d, 1959); Rowland v. State, 129 Fla. 662, 176 So. 545 (1937). The statutes under attack are not so vague and indefinite as to invade the constitutional rights of the defendants in the case Sub judice, where the plaintiffs seek an injunction. If the injunction does issue, it must be definite and certain.

It has been said that an attempt to enumerate all nuisances would be almost the equivalent as an attempt to classify the infinite variety of ways in which one may be annoyed or impeded in the enjoyment of his rights. 66 C.J.S. Nuisances § 26.

The following is found in 66 C.J.S. Nuisances § 102:

'As a rule, statutory remedies for the abatement of nuisances do not supersede existing common-law remedies. There must be a compliance with statutory provisions with respect to the mode or proceedings for abating a nuisance; where the language of the statute is plain and unambiguous, the court is not authorized to read into it any condition or qualification not expressed therein. An action to abate a public nuisance belongs to that class of remedies which may properly be provided by statute to aid in the administration of preventive justice. It stays the arm of the wrongdoer; it does not seek to punish him for any past violations of the law. Its purpose is to prevent a public offense and suppress what the law declares to be a nuisance.'

To make a statute sufficiently certain to comply with constitutional requirements, it is not necessary that it furnish detailed plans and specifications of the acts or conduct prohibited. Impossible standards are not required. Statutory language that conveys a definite warning as to proscribed conduct when measured by common understanding and practices satisfies due process. (Smith v. State, 237 So.2d 139 (Fla.1970); Hunter v. Allen, 422 F.2d 1158 (5th Cir., 1970).)

The validity of the statutes under attack is sustained by these authorities, for men of common intelligence would understand the evil...