State Ex Rel. Bennett v. Lee

• Decision Date: 12 March 1936
• Citation: 123 Fla. 252,166 So. 565
• Parties: STATE ex rel. BENNETT v. LEE, State Comptroller.
• Court: Florida Supreme Court

166 So. 565

123 Fla. 252

STATE ex rel. BENNETT v. LEE, State Comptroller.

Florida Supreme Court, Division A.

March 12, 1936

Original proceeding by the State of Florida, on the relation of F. G Bennett, for a writ of mandamus to J. M. Lee, as Comptroller of the State of Florida. On respondent's motion to quash the alternative writ.

Motion granted.

COUNSEL Zach H. Douglas and Parks M. Carmichael, both of Gainesville, for relator.

Cary D Landis, Atty. Gen., and H. E. Carter and J. V. Keen, Asst Attys. Gen., for respondent.

OPINION

BROWN Justice.

This is a mandamus proceeding instituted against the state comptroller to require him to issue to relator Bennett a permit to obtain a license to operate what is known in common parlance as a slot machine. The cause is before us on motion of respondent to quash the alternative writ.

The decision turns upon the validity and construction of section 12 1/2 of chapter 17257 of the Laws of 1935, providing for the licensing and regulation of the operation of certain described coin-operated devices. Said section reads as follows:

'Section 12 1/2 No machines operated under the provisions of this Act shall be maintained or operated within 300 feet of any public school or church; provided, however, that this shall not apply to any machine operated or maintained in any hotel.'

From the alternative writ it appears that Bennett operates the 'Cypress Inn' in Gainesville, Fla., a sort of sandwich shop, where sandwiches, beer, etc., are sold, and that on January 20, 1936, he filed his application for license with the comptroller, a copy of which is attached to the writ. The application, among other things, states that the 'location at which the machine will be operated' is 'The Cypress Inn,' in the city of Gainesville, and that such 'location' is 'within 300 feet of a church.' But this is amplified by the further statement that:

'The slot machine described herein, if licensed, will be operated and maintained in the Cypress Inn place of business at a point or physical location more than three hundred (300) feet of and from any public school or church. The building in which the applicant's place of business is located at its nearest point is within Three Hundred (300) feet of a church.

'The building in which applicants place of business is maintained is divided into two sections and the entire building is twenty-five (25) feet wide and fifty (50) feet long. The main entrance fronting South on a main street and the slot machine sought to be licensed hereby will be maintained and operated in the front part of applicant's place of business more than three hundred (300) feet from a church or school.'

Comptroller Lee denied the application upon the ground that the specified location 'is within 300 feet of a church.'

Relator contends that section 12 1/2 12 is unconstitutional because it makes an unfair and unjustifiable discrimination in favor of hotels, contrary to our Florida Constitution, Declaration of Rights, and the Fourteenth Amendment to the Federal Constitution.

This statute is not only a taxing or licensing measure; it is, by both its title and provisions, a regulatory law, adopted in the exercise of both the taxing and police powers of the Legislature.

When the classification made by such a law is called in question, if any state of facts can be reasonably conceived of that would sustain it, the existence of that state of facts will be assumed by the courts. One who assails the classification has the burden of showing that it does not rest upon any reasonable basis, but is essentially arbitrary and unreasonable. Hiers v. Mitchell, 95 Fla. 345, 116 So. 81.

In this connection the Attorney General's brief, filed on behalf of the respondent, makes these pertinent observations:

'The purposes of the police regulation contained in section 12 1/2 of the Act are to:

'1. Protect children who attend public schools from the temptation of gambling with what little money they may have, which in most cases should be spent for food, and to protect them from all of the other evils of gambling, including the formation of the gambling habit.

'2. Protect houses of worship from the influence of gambling and from the noise and rowdyism so often attendant upon public gambling.

'Stores and other places of business, except hotels, in which these coin-operated gambling devices may be operated, are open to the public and their business appeal is to all classes and kinds of people who are able to purchase goods or play the machines. It is true that the law forbids a person in charge of such machines to allow any minor to play them (section 7). It is common knowledge that this provision of the Act is very difficult to enforce, especially when large numbers of children are present. If such gambling machines are allowed to operate in stores and other places of business, other than hotels, in or near the public school buildings, many children will play them regardless of regulations to the contrary, and all will be subjected to the evil influence of gambling. The noise of the operation of such gambling machines located in stores and other places of business, other than hotels, which are patronized by the general public would certainly tend to disturb public worship. The Legislature, in seeking to protect the churches and those who desire to worship therein, has determined that no such machines shall be operated, except in hotels, within 300 feet of a church.

'The reasons for permitting these machines to operate within 300 feet of a public school or church when located within a hotel are:

'1. That hotels do not offer for sale or sell goods, wares, merchandise or services that are purchased by any large section of the general public and, hence, the general public do not congregate at or visit such places, whereas, the general public do visit stores and other places of business and these machines tend to cause crowds to congregate at such places and such crowds would tend to disturb public worship.

'2. The school children do not generally frequent hotels while they do visit stores and other places of business in the vicinity of schools.

'3. That hotels do not generally attract groups of people and those people who are there are usually paying guests who are travelers and strangers and they are not likely to produce noise when operating the machines such as would be produced by a group of people who gather at the average store or other place of business, other than hotels for the...