Somerstein v. City of Miami Beach, s. 74--1133

• Citation: 319 So.2d 158
• Decision Date: 29 July 1975
• Docket Number: 74--1365 and 74--1524,Nos. 74--1133,s. 74--1133
• Parties: Irving SOMERSTEIN et al., Appellants, v. CITY OF MIAMI BEACH, a Florida Municipal Corporation, Appellee. CITY OF MIAMI BEACH, a Florida Municipal Corporation, Appellant, v. Irving SOMERSTEIN et al., Appellees.
• Court: Court of Appeal of Florida (US)

Page 158

319 So.2d 158

Irving SOMERSTEIN et al., Appellants, v. CITY OF MIAMI BEACH, a Florida Municipal Corporation, Appellee.

CITY OF MIAMI BEACH, a Florida Municipal Corporation, Appellant, v. Irving SOMERSTEIN et al., Appellees.

Nos. 74--1133, 74--1365 and 74--1524.

District Court of Appeal of Florida, Third District.

July 29, 1975.

Rehearing Denied Oct. 15, 1975.

Horton, Perse & Ginsberg, Miami, Steinberg & Neustein, Miami Beach, for Somerstein and others.

Joseph Wanick, City Atty., Lionel Barnet, Sibley, Giblin, Levenson & Ward, Miami Beach, for City of Miami Beach.

Before PEARSON, HENDRY and HAVERFIELD, JJ.

HAVERFIELD, Judge.

In these consolidated appeals we are asked to review two orders of contempt entered against defendant-appellants for their alleged violations of the terms of an injunction. The salient facts are as follows:

Since 1967 Irving Somerstein, Sidney Hechtman and Somerstein Caterers of Florida, Inc., defendants in the trial court and appellants herein, have been engaged in the business of providing a kosher catering service within the premises of Temple Emmanu-El located on Miami Beach, Florida. It appears that this kosher catering service is a necessity in that Jewish law dictates that the Bar Mitzvah or wedding ceremony must be accompanied by a kosher feast, the Feast of Merit, at which various blessings are said over the Feast itself. Appellee, City of Miami Beach, plaintiff in the trial court, for several years permitted the defendants to conduct their catering service within the premises of the Temple.

However, on March 13, 1973 the City of Miami Beach filed a complaint praying for injunctive relief against the defendants upon the allegations that defendants were operating a commercial catering business upon the premises of Temple Emmanu-El in the City of Miami Beach in a high density, multi-residential zone, an area not zoned for such commercial business activity. In response thereto, defendants filed an answer, affirmative defenses and a counterclaim. The cause came on for trial before the Honorable David Popper who found that defendants were not in violation of the City's zoning ordinance when catering affairs on the premises of Temple Emmanu-El initiated by and solely for bona fide affiliated organizations of the Temple or the Temple itself. Thereupon, Judge Popper entered the following judgment:

'ORDERED AND ADJUDGED as follows:

'1. The Defendants are permanently enjoined from operating a catering business or commercial enterprise at 1701 Washington Avenue in the CITY OF MIAMI BEACH, Florida. The Defendants will be permitted, however, to perform catering services on the Temple premises solely for and only when actually initiated by Temple Emanuel or bona fide affiliated organizations thereof, such as the Temple's sisterhood, men's club or young organization of the Temple.

'2. That the Defendants-Counterclaimants take nothing by their counterclaims and that the Plaintiff-Counterdefendant go hence without day and the said counterclaims be and they are dismissed with prejudice.'

On June 28, 1974 Judge Popper held an additional hearing at which he attempted to clarify the terms of the above injunction as follows:

'THE COURT: All right. I made these findings and I want you all to hear them and if I change anything and you are all here to hear them.

'I made findings that the Somerstein Caterers could not operate as a business from the Temple.

'I said they were an ancillary function of the temple and they could operate for temple purposes.

'I gave as examples Bar Mitzvah's, marriages and things of that nature and that is all they can do, and they cannot cater to anybody else from the temple premises.

'They are ancillary for purposes such as Sisterhood, men's organizations, youth organizations and for the temple itself, and the temple in its functions and that the Rabbi is performing in behalf of the temple which could be a marriage or a Bar Mitzvah or something like that and if the Court deems it to be a temple function.

'I think I have concluded this hearing, gentlemen.

'MR. SHAPIRO: Your Honor, what about the term on the bottom of the line where it says, 'Actually initiated by?'

'THE COURT: I don't care.

'I made specific statements as to the people not mentioned of the temple who could not come to the caterers and ask for a function to be performed by the caterers and if they make arrangements through the Rabbi for the marriage and the Rabbi himself contacts them then it is a temple function and if they contact him it is a temple function.'

Approximately two weeks later, on July 10, 1974 the City filed a motion for rule to show cause and alleged that defendants had violated the terms of the final judgment and injunction by catering on the Temple's premises several parties, to wit (1) the Kaplan Bar Mitzvah on the afternoon of June 29, 1974, (2) the Katz Bar Mitzvah that evening, (3) the Reichwald-Hirschhorn wedding later that same day. Judge Popper issued a rule to show cause and a hearing was set for October 10, 1974.

On August 13, 1974 the City filed a motion seeking the court's sanctions against defendants and again alleged a violation of the June 19 injunction in that defendants catered on the premises of Temple Emmanu-El the Vasserstein-Bialkowicz wedding on August 10, 1974 and the Genet Bar Mitzvah on August 11.

A hearing was held the following day (August 14) before the Honorable Rhea Pincus Grossman who found that the defendants had violated the provisions of the permanent injunction by catering the Vasserstein-Bialkowicz wedding upon the premises of Temple Emmanu-El and thereupon (1) held the defendants in contempt of court, (2) fined defendants Somerstein and Hechtman $1,000 each, and (3) sentenced them to a term of 30 days in the county jail commencing September 1, 1974. Upon proper motion, Judge Grossman held a rehearing on August 28, 1974 at which time Rabbi Irving Lehrman, the spiritual leader of Temple Emmanu-El, testified that Jewish law speaks of a Simcha Shel Mitzvah which is the celebration (in the form of eating dinner and so on) of the mitzvah of a religious event and, therefore, the August 10 wedding dinner was in accord with the dictates of Jewish law and tradition and a function of Temple Emmanu-El carried out under the Temple's auspices. Nevertheless, Judge Grossman found that this use of the sanctuary of Temple Emmanu-El by defendants in providing a catering service to private persons was a subterfuge and an obvious attempt to circumvent the prohibition for the conduct and operation of a commercial catering business as set forth in the June 19 court decree. The judge then ordered defendants Somerstein and Hechtman to pay the $1,000 fines previously assessed against them and to serve a 30 day jail sentence to commence September 15, 1974. Defendants filed their appeal from this contempt order of September 3, 1974.

Thereafter, hearings on September 4 and 10, 1974 were conducted before Judge Popper concerning a motion filed by the City styled 'Further Motion for Contempt' and upon defendants' motion for stay and supersedeas of the contempt order of September 3, 1974 and motion for relief therefrom. Judge Popper denied all these motions but did...