South Florida Art Theaters, Inc. v. State ex rel. Mounts, 2447

• Decision Date: 19 June 1969
• Docket Number: No. 2447,2447
• Court: Florida District Court of Appeals
• Parties: SOUTH FLORIDA ART THEATERS, INC., a Florida corporation, Betty Henn, president of South Florida Art Theaters, Inc., and Harry Turbeyfill, Treasurer of South Florida Art Theaters, Inc., Appellants, v. STATE of Florida ex rel. Marvin U. MOUNTS, Jr., as County Solicitor in and for Palm Beach County, Florida, Appellee.

Page 706

224 So.2d 706

SOUTH FLORIDA ART THEATERS, INC., a Florida corporation, Betty Henn, president of South Florida Art Theaters, Inc., and Harry Turbeyfill, Treasurer of South Florida Art Theaters, Inc., Appellants, v. STATE of Florida ex rel. Marvin U. MOUNTS, Jr., as County Solicitor in and for Palm Beach County, Florida, Appellee.

No. 2447.

District Court of Appeal of Florida, Fourth District.

June 19, 1969.

Rehearing Denied July 29, 1969.

John M. Callaway, Lake Worth, for appellants.

Marvin U. Mounts, Jr., West Palm Beach, for appellee.

REED, Judge.

This is an interlocutory appeal by the defendants from an order denying a motion to dissolve a temporary restraining order.

On Friday, 20 September 1968, the county solicitor for Palm Beach County, Florida, brought suit in the Circuit Court for Palm Beach County against South Florida Art Theaters, Inc., Betty Henn, its president, and Harry Turbeyfill, its treasurer. The suit was filed pursuant to F.S.1967, Section 847.011(7), F.S.A., to enjoin the said defendants from showing an allegedly obscene motion picture.

The complaint alleged that the defendants operated the Playboy Theater in Lake Worth, Florida. The motion picture was alleged to have commenced at that theater on Thursday, 19 September 1968 and was scheduled to play through the weekend.

The complaint demanded a permanent injunction as well as a temporary restraining order without notice.

On the day the complaint was filed the circuit judge issued a temporary restraining order without notice to the defendants. The order was issued on the basis of the sworn complaint and sworn testimony. In addition to restraining the defendants from showing the motion picture the order directed the defendants to appear at 8:30 a.m. on 23 September 1968 and show cause why the restraining order should not continue in effect throughout the pendency of the case.

Pursuant to the order, the defendants appeared on 23 September and presented a motion to dismiss the temporary restraining order.

The motion to dismiss was predicated on the following grounds: (1) the motion picture is exempt from Section 847.011 by the operation of subsection (9) thereof; (2) Section 847.011 violates the First Amendment of the United States Constitution; (3) Section 847.011 is void for vagueness and, therefore, violates the Fourteenth Amendment of the United States Constitution; (4) Section 847.011(10) is unconstitutional in that it does not provide a proper definition of 'obscenity'; and (5) the complaint sets forth only conclusions of the pleader; therefore, the temporary injunction based thereon was not based on the reasoning of a judicial officer, but rather on the conclusions of the county solicitor who filed the complaint.

Following the hearing on 23 September the trial court entered the following order:

'The Court is of the view that the sworn complaint and testimony under oath of the County Solicitor are sufficient to withstand Defendant's motion to dismiss. Thereupon, it is

'ORDERED the Defendant's motion to dismiss the complaint and dissolving the temporary restraining order is denied.'

An interlocutory appeal has been taken from that order.

The defendants basically argue three points. They are:

Point 1. The motion picture film which was the subject of the complaint was exempt from Section 847.011 by operation of subsection (9) thereof.

Point 2. Section 847.011 is void because the standard provided for the determination of obscenity is without a sufficient degree of definiteness and is so broad that it reaches constitutionally protected publications.

Point 3. The procedure employed by the trial court in granting the ex parte temporary restraining order infringed the defendants' constitutional right of free speech.

The defendants in their brief concede that motion pictures are covered by Section 847.011, but argue that commercial movie theaters are exempt from Section 847.011 by the operation of subsection (9) thereof which provides that, 'This section shall not apply to the exhibition of motion picture films permitted by § 521.02.' F.S.1967, Section 521.02, F.S.A., provides that no motion picture may be shown in a licensed commercial theater unless it has been reviewed and approved by the National Board of Review of Motion Pictures, Inc. or the Film Estimate Board of National Organizations, or has been licensed by the State Department of Education of the State of New York.

It is clear from the plain language of Section 847.011(9) and Section 521.02 that the legislature intended to exempt from the obscenity statute any film approved by one of the organizations specified in Section 521.02. There is no basis in the statute to support the defendants' contention that all films shown in commercial theaters are exempt from Section 847.011 and there is no basis in the record to indicate that the particular film here involved was within the standards of Section 521.02 and, therefore, exempt from Section 847.011(9). For this reason we conclude that the first point is without merit.

Subsection (1)(a) of Section 847.011 in its pertinent parts provides:

'A person who knowingly * * * shows or * * * offers to * * * show * * * or has in his possession * * * with intent to * * * show * * * any obscene * * * motion picture film * * * is guilty of a misdemeanor * * *.'

The fine provided is $1,000.00 or one year in jail or both.

Subsection (2) is identical to subsection (1) except that it deals with the possession of obscene materials Without the intent to show them. A fine of six months or $500.00 or both is provided for the violation of subsection (2).

Subsection (7) of the act provides for the issuance of an injunction by the circuit court to enjoin a threatened violation of the law upon a complaint filed by the state attorney, the county solicitor or a county prosecuting attorney in the name of the state.

Subsection (10) of the statute provides as follows:

'For the purposes of this section, the test of whether or not material is obscene is: Whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.'

The defendants point out that recent decisions from the United States Supreme Court have laid down a three point test to measure that which is obscene and subject to state regulation and to differentiate between it and constitutionally protected free speech. Expressions which may be constitutionally prohibited must be such that: (1) the dominant theme of the material when taken as a whole appeals to the prurient interests; (2) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (3) the material is without redeeming social value. These criteria have been developed by the Supreme Court in A Book Named John Cleland's Memoirs of a Woman of Pleasure v. Attorney General of Massachusetts, 1966, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1; and Redrup v. State of New York, 1967, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515, subsequent to the enactment of F.S.1967, Section 847.011(10), F.S.A. The defendants take the position that because the statutory definition of obscenity in subsection (10) does not coincide with the criteria established in the cited cases the entire act is unconstitutional.

The defendants simply misconceive the application of the constitutional doctrine to the Florida Statute. It is quite correct to contend that the Proof of 'obscenity' must meet the criteria laid down in the cited cases, but merely because the statute does not define obscenity precisely in terms of the said criteria, the statute is not necessarily unconstitutional. The statute may be applied in a constitutional manner even without the definition provided in the statute.

A complete answer to the defendants' contentions that the statute is void because subsection (10) does not encompass the three point criteria and because the prohibition against 'obscenity' is, therefore, too vague is furnished in State of Florida v. Reese, Fla.S.Ct., 222 So.2d 732, filed 7 May 1969. The very argument raised by defendants here was raised by the appellee in the Reese case, supra, and rejected.

The pertinent language from the Reese case is as follows:

'The appellee contends that these decisions have so modified the Roth test as to amount to an abandonment thereof, and that Subsection (10) of § 847.011 is therefore 'unconstitutional.' It appears to us, however, that a determination of the question of whether or not the Roth test has been abrogated by the United States Supreme Court will have no effect whatsoever on the question of the validity of the statute, § 847.011(2), which the appellee was charged with violating. There can be no doubt that prosecutions under an obscenity statute may be initiated and tried under a court-adopted standard of obscenity as well as under a legislatively prescribed one. See Roth v. United States, supra. The addition of Subsection (10) to § 847.011 was merely a legislative declaration of a judicial rule that had already been adopted by the courts of this state. See Rachleff v. Mahon, Fla.App.1st 1960, 124 So.2d 878; Gerstein v. 'Pleasure Was My Business,' Fla.App. 3d 1961, 136 So.2d 8. Subsection (10) is clearly severable from the remainder of the Act under well established rules and the severability clause contained in the Act in which it was adopted. See Sec. 12, Ch. 61-7, Acts of 1961. If Subsection (10) were deleted from the the statute, the situation would revert to what it was prior to its adoption, that is, the courts of this state could adopt the later pronouncements of the United States Supreme Court 'elaborating' upon the definition of obscenity made in Roth, as set forth in Memoirs, quoted above.' (Emphasis added.)

Finally, the defendants argue that the issuance of the temporary injunction without notice and without an...