Philbrick v. City of Miami Beach
| Decision Date | 20 June 1941 |
| Citation | 3 So.2d 144,147 Fla. 538 |
| Parties | PHILBRICK et al. v. CITY OF MIAMI BEACH. |
| Court | Florida Supreme Court |
Rehearing Denied July 14, 1941.
Appeal from Circuit Court, Dade County; Ross Williams Judge.
William Jennings Dunn and Harold M. Wilson, both of Miami Beach, for appellants.
J. Harvey Robillard of Miami Beach, and V. B. Rutherford, of Miami, for appellee.
Appeal brings for review final decree of injunction whereby it was inter alia, adjudged and decreed:
'The defendants, W. L. Philbrick, Director of Funerals, Inc., and W. L. Philbrick, their servants, agents and employees and each and every of them be and they are hereby permanently perpetually enjoined and restrained from using lots 8 and 9 Block 3, of Fisher's First Subdivision of Alton Beach according to the plat thereof recorded in Plat Book 2 at page 77 of the Public Records of Dade County, Florida, and the improvements and buildings situate thereon as a funeral home, a funeral parlor or undertaking establishment, and from using said premises for the purposes of conducting funerals or acting as funeral directors, and that they cease and desist from conducting and holding funerals on said premises, and from advertising or holding themselves out as conducting said business thereon contrary to the provisions of any valid, subsisting ordinance of the City of Miami Beach, prohibiting such uses and actions, but this injunction shall not become effective until ten days from this date.'
The case appears to be ruled by our opinion and judgment in the case of State ex rel. Skillman v. City of Miami, 101 Fla. 585, 134 So. 541. It is true that the Skillman case originated with the issuance of a writ of habeas corpus, while in the instant case suit was instituted in Chancery by a municipality, the City of Miami Beach, to enjoin the conducting of a funeral home in a residential district of the City of Miami Beach in violation of the Zoning Ordinance of the City of Miami Beach, Florida.
Had the suit been brought by an individual, the contention of the appellant that special injury would have to be shown might be sustained; but, as it is, suit was brought by the governmental authority in the governmental function of protecting the public.
In Pompano Horse Club v. State, 93 Fla. 415, 111 So. 801, 810, we held: This enunciation, coupled with what we said in the Skillman case, supra, is sufficient to warrant the invoking of the injunctive relief.
No reversible error being made to appear in the record, the decree is affirmed.
The bill in this case alleges the adoption by the plaintiff City of a zoning ordinance in 1930, a copy of which is made a part of the bill, which ordinance sets out certain use regulations and restrictions on property located in the various zones therein established, and provides that violation of such restrictions shall be punishable by fine or imprisonment, or both, and that each day a violation is permitted to exist shall constitute a separate offense. It is further alleged that one of the defendants is the owner of certain premises at 1853 Washington Avenue which is within a district zoned for residential use; that defendant keeps, maintains and operates the same together with the building, furniture and fixtures and equipment, for the purpose of conducting thereon and therein the business of a funeral director, funeral parlor, funeral home, etc. The bill recites without giving any date that a petition was filed with the City Council of Miami signed by property owners in the neighborhood, objecting to such use of the property, alleging that such use is damaging to them and their property. It is also alleged that defendants hold out and advertise said premises for said prohibited business. The bill alleges that the business conducted by the defendants, appellants here, is a violation of said zoning ordinance. Then follows the general allegation that by reason of the aforesaid facts 'plaintiff and the tax payers and property owners and citizens thereof suffered irreparable damage for which they have no adequate remedy at law.' The prayer was for temporary injunction against the alleged unlawful use of the property and that upon final hearing a perpetual injunction be granted.
A motion to dismiss the bill for want of equity was filed, which also set up that the bill showed that plaintiff had an adequate remedy at law. This motion was denied.
In their answer the defendants admitted the allegations as to the ownership of the property and its location, but the defendant Philbrick alleged that the premises were used by him and his family as a dwelling place.
While the defendants denied that any business was conducted upon the premises, the defendant Philbrick, Inc., admitted that the premises were occasionally used for the benefit of clients of its business, which business was that of a funeral director, etc., and that its place of business was located at 660 W. Flagler Street in the City of Miami; that the premises here in question were principally used by W. L. Philbrick as a dwelling and residence for himself and family and that a certain part of the dwelling was set apart and used as a funeral chapel, as an accommodation and without charge, wherein burial services might be held, but that the activities pertaining to the undertaking business were carried on in the City of Miami, where defendant corporation had an establishment equipped for such uses and purposes.
While the plaintiff's evidence was not very strong, the Master and the Chancellor concluded that the defendants had been and were conducting a funeral home on the premises described in the bill, in violation of the zoning ordinance. There was evidence to support this finding. The rule is that we will not disturb the findings of the Chancellor on the facts unless they are clearly erroneous.
The most serious legal question presented by this case is the sufficiency of the bill to withstand the motion to dismiss. It will have been observed that the bill does not contain any express allegation that the conduct of the defendant's business at the place in question constituted either a public nuisance or a private nuisance to the adjoining property owners. If it constituted a mere private nuisance to adjoining or nearby property owners, such adjoining property owners had their remedy. If it constituted a public nuisance, then the city had a right to file the bill. It is well settled that equity...
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...134 Fla. 1, 183 So. 759, 119 A.L.R. 956; State Department of Public Welfare v. Bland, Fla., 66 So.2d 59; and Philbrick v. City of Miami Beach, 147 Fla. 538, 3 So.2d 144.' In Pinellas County v. Hooker, Fla.App., 200 So.2d 560, in dealing with a very kindred question, that court said, and we ......
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...as type of government authority); City of Hollywood v. Yarborough, 274 So.2d 526, 528 (Fla.1973) (same); Philbrick v. City of Miami Beach, 147 Fla. 538, 3 So.2d 144, 145 (1941) (considering City of Miami a governmental authority); Browne v. City of Miami, 948 So.2d 792, 794 (Fla.Dist.Ct.App......
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...held that injunctive relief is proper procedure for a city to prevent violation of its zoning ordinances. Philbrick v. City of Miami Beach, (147 Fla. 538) 3 So.2d 144 (Fla.1941). Accordingly Defendant's argument that the use of the injunctive process is improper or that the City was obligat......