FEDERAL AMUSEMENT COMPANY, A FLORIDA CORPORATION, AND CHARLES (BABE) BAKER,
v.
STATE OF FLORIDA, UPON THE RELATION OF FRANK TUPPEN
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The Florida Supreme Court affirmed an injunction abating the Ha Ha Club as a public nuisance, holding that while operating a night club and male impersonation are lawful activities per se, they may be abated when conducted in a lewd, indecent, and obscene manner that corrupts public morals. The court found the record supported the chancellor's determination that the club's performances fell below community moral standards.
The court affirmed the injunction, holding that while the operation of a night club and male impersonation are lawful per se, a lawful business may be abated when conducted in a manner that corrupts public morals. The court found the record supported the chancellor's determination that the Ha Ha Club's performances were lewd, indecent, and obscene, falling below community moral standards. However, the court noted the decree was somewhat overbroad and should be modified on proper showing to limit the injunction to performances that are specifically lewd, indecent, or obscene.
“It may be admitted that the operation of a night club is a lawful business per se and that there is no lawful objection to men impersonating women or vice versa. This has been done since the beginning of the drama. The complaint is that these things were done in a nasty, suggestive and indecent manner. It is well settled that a lawful business may be abated if conducted in a way to corrupt public morals.”
Establishes the core legal principle that lawful activities may be abated as nuisances when conducted in a manner that corrupts public morals.
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Join FLexlaw to unlock all legal intelligenceFederal Amusement Company and Charles Baker operated the Ha Ha Club, a night club featuring male performers impersonating women. The performances were…
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This appeal is from a final decree restraining appellants from operating a night club known locally as the “Ha Ha Club.” A motion to modify the injunctive order was made and denied before the appeal was taken. The suit was instituted under Section 64.11, Florida Statutes 1941, providing for the abatement of nuisances. The bill of complaint prayed that appellant be restrained temporarily and permanently from operating the “Ha Ha Club,” on the theory that its cast is composed of men who impersonate women and that its performances are conducted in a suggestive, indecent and obscene manner.
The final decree restrained appellants from “operating and maintaining any public nuisance at the Ha Ha Club” and from “exhibiting for public entertainment any show or acts using female impersonators who are in fact males, and any other acts or songs, dances or jokes which are suggestive and which tend to injure the manners and morals of the people.”
*497Appellants contend that the final decree is too general, that its effect is to prohibit them from the exercise of a lawful business that they have exercised for many years and that it prohibits them from the use of their property for such a purpose.
The record does not support the aspect in which appellants proffer their complaint. It may be admitted that the operation of a night club is a lawful business per se and that there is no lawful objection to men impersonating women or vice versa. This has been done since the beginning of the drama. The complaint is that these things were done in a nasty, suggestive and indecent manner. It is well settled that a lawful business may be abated if conducted in a way to corrupt public morals.
The record has been examined and some of the evidence is irrelevant to the point in issue, and the final decree might have accomplished the same purpose if it had been directed to performances, impersonations and jokes that are lewd, indecent or obscene. The lawful evidence presents a dirty picture, the Ha Ha Club looks as if it were a cross between a “honky tonk” and a “speak easy.” The chancellor may well have determined that its major connotations were evil, that it was exerting a corrupting influence and that the time had arrived to abate it. The fact that it is alleged to have been frequented by governors, senators, county officers and others of responsible status does not help it, if it is in fact listed in the category of things proscribed by the law.
The law does' not require the Ha Ha Club to live up to a higher standard of morals than that approved by the community in which it operates. If it falls below that standard it is merely through concession that virtue makes to vice, if the scales overbalance on the side of vice the social structure disintegrates. There is no greater impediment to mass virtue than a ration of filth, it is in fact, as allergic to filthy conversation as the victim of hay fever is to an outburst of ragweed. This is the theory on which laws for the abatement of nuisances of this kind are promulgated and enforced.
The judgment appealed from is accordingly affirmed but without prejudice to appellants to apply for a modification of *498the chancellor’s decree limiting the injunctive order to performances and impersonations that are lewd, indecent or nasty. It is indefinite and uncertain as to this and should on proper showing be modified if it was intended to go further.
Affirmed without prejudice.
THOMAS, C. J., CHAPMAN and SEBRING, JJ., concur.
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Mitchum v. State, 251 So. 2d 298 (Fla. 1st DCA 1971)…s have not made application to the lower court for modification of its injunctive order so as to make the same less restrictive, as appellants are permitted to do under the decision in Federal Amusement Company v. State ex rel. Tuppen, 159 Fla. 495, 32 So. 2d 1 (1947), notwithstanding that this court has tacitly suggested to appellants on two prior occasions in opinions rendered in this cause that such avenue is available and open to them if they can adduce evidence of the intention to operate a business d…
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Cent. Theatres, Inc. v. State of Fla. ex rel. Herbert Braren, 161 So. 2d 558 (Fla. 2d DCA 1964)…ts business in a manner critically detrimental to the health, morals or property rights of the community. Cf. Mayflower Holding Co., Inc. v. Warrick, 1940, 143 Fla. 125, 196 So. 428; Federal Amusement Co. v. State ex rel. Tuppen, 1947, 159 Fla. 495, 32 So. 2d 1; Bartlett v. Moats, 1935, 120 Fla. 61, 162 So. 477 ; 52 Am.Jur., Theatres, Etc., § 45. Accordingly the hasty action against the defendant was without justification unless the described scenes should be deemed clearly a nuisance per se; but the plai…
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Five SKY, Inc. v. State of Fla. ex rel. Richard E. Gerstein, 131 So. 2d 39 (Fla. 3d DCA 1961)…onducted in an orderly and lawful manner on the premises. See Fasson v. State ex rel. Burton, 141 Fla. 367, 193 So. 299; State ex rel. Moore v. Gillian, 141 Fla. 707, 193 So. 751. See also Federal Amusement Co. v. State ex rel. Tuppen, 159 Fla. 495, 32 So. 2d 1. However, the record shows, and the chancellor so found, that the appellants here could not operate their legitimate business at the Five O’Clock Club without permitting the acts of lewdness, assignation and solicitation for prostitution which had b…
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