Pinellas County v. Hooker

• Decision Date: 23 June 1967
• Docket Number: No. 7503,7503
• Citation: 200 So.2d 560
• Parties: PINELLAS COUNTY, a political subdivision of the State of Florida, Appellant, v. John C. HOOKER and George T. Othen, Appellees.
• Court: Florida District Court of Appeals

Page 560

200 So.2d 560

PINELLAS COUNTY, a political subdivision of the State of Florida, Appellant, v. John C. HOOKER and George T. Othen, Appellees.

No. 7503.

District Court of Appeal of Florida, Second District.

June 23, 1967.

Rehearing Denied July 18, 1967.

Page S. Jackson, County Atty., and John G. Fletcher, First Asst. County Atty., Clearwater, for appellant.

James T. Russell, St. Petersburg, for appellees.

LILES, Judge.

Pinellas County sought to enjoin a violation of zoning regulations enacted pursuant to Chapter 26164, Laws of Florida, Acts of 1949. The original complaint alleged that George T. Othen was operating an establishment for the servicing, repair and maintenance of mechanical and electrical contrivances commonly known as 'jukeboxes' and 'pinball machines' and other similar items, in a zone designated R--4 for residential purposes. Commercial uses in this R--4 classification were prohibited. John C. Hooker was the owner of the property and was allowing it to be used by Othen.

Defendants moved to dismiss the complaint on the grounds that the county did not allege that the violation of the zoning regulations was also a public nuisance. The court dismissed the complaint without prejudice to the county to amend. The county then filed its amended complaint for an injunction and alleged a public nuisance. At the conclusion of the county's case in chief, the trial court granted a decree in favor of the defendants for the reason that the county had failed to show a public nuisance and relied upon Jacobsen v. Padgett, Fla.App.1959, 108 So.2d 303.

The court went on to say that the county had an adequate remedy at law in that the defendants could be prosecuted for violation of zoning ordinances under Section 16, Chapter 26164, Laws of Florida, Acts of 1949; and therefore the county could not maintain an action in equity. This appeal followed. The county raises for our consideration the questions of whether or not a governmental entity which has zoning powers can enforce their regulations by injunctive relief when there is also provisions in the statutes for criminal prosecution, and whether a public nuisance must be present before zoning regulations may be enforced by way of injunctive relief.

Section 14 of Chapter 26164, as amended, Sp.Acts 1965, c. 65--2102, § 3, reads as follows:

'In case any building or structure is erected, constructed, reconstructed, altered, repaired, converted or maintained or any building, structure, land, or water is used in violation of this act or of any other or of any resolution or other regulation made under authority conferred hereby, The proper local authority of said county, in addition to other remedies, may institute any appropriate action or proceeding to prevent such unlawful erection, construction, reconstruction, alterations, repair, conversion, maintenance or use, to restrain, correct or abate such violation to prevent the occupancy of said building, structure, land, or water or to prevent any illegal act, conduct, business or use in or about such premises.' (Emphasis added.)

Section 16 provides:

'Any person, firm, partnership or corporation violating any of the provisions of this Act or who shall fail to abide by and obey all orders and resolutions promulgated as herein provided for shall upon conviction thereof be deemed guilty of a misdemeanor and shall be punished therefor...