State ex rel. Little Beaver Theatre, Inc. v. Tobin, 71--447

• Decision Date: 15 February 1972
• Docket Number: No. 71--447,71--447
• Citation: 258 So.2d 30
• Court: Florida District Court of Appeals
• Parties: STATE of Florida ex rel. LITTLE BEAVER THEATRE, INC., Appellant, v. Gerald J. TOBIN et al., Appellees.

Page 30

258 So.2d 30

STATE of Florida ex rel. LITTLE BEAVER THEATRE, INC., Appellant, v. Gerald J. TOBIN et al., Appellees.

No. 71--447.

District Court of Appeal of Florida, Third District.

Feb. 15, 1972.

Rehearing Denied March 8, 1972.

Engel & Halpern, Miami, for appellant.

Alan H. Rothstein, City Atty., and Jack R. Rice, Asst. City Atty., for appellees.

Before SWANN, C.J., CHARLES CARROLL, J., and SACK, MARTIN, Associate Judge.

PER CURIAM.

The appellant Little Beaver Theatre, Inc., by a complaint and an amended complaint filed against the judges of the municipal court of the City of Miami and the city attorney, sought to enjoin its prosecution in the municipal court for alleged violation of the obscenity ordinance of the city by the showing of three certain films which had been seized on a search warrant, alleging as ground for the injunction sought that the city's obscenity ordinance was unconstitutional, and seeking return on the motion picture films. The city filed a responsive pleading and applied to the court for an order enjoining the plaintiff from showing the films.

On final hearing the court entered a judgment from which the plaintiff has appealed, as follows:

'This Cause coming on to be heard upon final hearing, and after examining the pleadings in this cause, hearing testimony of the witnesses, considering the evidence, and hearing extensive legal arguments of the attorneys for the respective parties herein, and being otherwise fully advised in the premises, the Court finds:

'1. That this Court entered an order on the 28th day of July, 1970, wherein this Court retained jurisdiction over all issues concerning the alleged action of the City of Miami pertaining to films seized by it on July 11, 1970, at the Strand Theatre, and retained jurisdiction for the purpose of construing the constitutionality of § 37--9 and § 37--10 of Chapter 37 of the Code of the City of Miami (Ordinance No. 7820) and related matters.

'2. The Relator attacked the aforesaid ordinance for its failure to set out objectives and specific standards for the determination of obscenity in conformity with the decisions of the Supreme Court of the United States. This Court rejects this contention as the ordinance meets federal constitutional requirements because it adopts by implication the standards of Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498. The view is hereby adopted that the constitutional standards defining obscenity promulgated by the Supreme Court, although not literally present in the ordinance, are to be implied when the ordinance is applied. See South Fla. Art Theatres, Inc. v. State ex rel. Mounts, Fla.App., 224 So.2d 706.

'3. The fact that the ordinance is silent in not specifically prescribing adversary proceedings to be filed before any prior restraint is allowed is also without merit as the constitutional requirements are implied in the ordinance itself. The City of Miami ordinance, in failing to apply these tests, does not result in the ordinance being unconstitutional. The City in making an arrest or seizure must apply these tests. Therefore, the City was validly enjoined from holding a hearing on July 24, 1970 in the Municipal Court and the films so seized returned to the Relator.

'4. The contention that the ordinance fails specifically to include the words 'motion pictures' in § 1(a) and § 2 thereof is totally without merit as the ordinance does specify pictures which of necessity would include motion pictures.

'5. The Court, although not witnessing the motion pictures in controversy in this cause, reviewed the affidavits in the file and the Verified Complaint and Application for Search...