ROGER THOMPSON, VICKI THOMPSON, AND DOROTHY THOMPSON, APPELLANTS,
v.
STATE OF FLORIDA, APPELLEE
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Roger, Vicki, and Dorothy Thompson appealed the Charlotte County Court's closure of their nightclub based on a nuisance determination by a special jury of householders. The Florida Supreme Court reversed, holding that section 823.01(2), which restricted the jury to householders, violated the state constitution's due process protections against special interest juries.
Section 823.01(2) violates article I, section 9, of the Florida Constitution because it restricts jury membership to householders, creating an unconstitutional special interest jury. If a jury is required in nuisance proceedings, it must be selected according to chapter 40 specifications rather than limited to householders.
[1] A statute providing for the abatement of a nuisance by a jury composed solely of householders violates due process of law.
[2] The Legislature has broad discretion to designate particular activities as public nuisances under its police power.
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Establishes the constitutional defect in using householders-only juries
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Join FLexlaw to unlock all legal intelligenceThe Thompson family owned and operated a nightclub called Mothers. A panel of twelve householders, summoned pursuant to section 823.01(2), found the n…
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McDonald, justice.
This is a direct appeal from the Charlotte County Court which held constitutional section 823.01(2), Florida Statutes (1975). This Court has jurisdiction. Art. V, § 3(b)(1), Fla.Const. (1972). We reverse.
The court order closed Mothers, a business owned and operated by Roger, Vicki, and Dorothy Thompson. This order followed a finding by a panel of twelve householders, summoned and acting pursuant to section 823.01(2), that the nightclub was a nuisance. Section 823.01(2) reads as follows:
Any nuisance which tends to the immediate annoyance of the citizens in general, or is manifestly injurious to the public health and safety, or tends greatly to corrupt the manners and morals or the people, may be removed and suppressed by the order of the county court judge of the county, founded upon the verdict of 12 householders of the same, who shall be summoned, sworn, and impaneled for that purpose, which order shall be directed to and executed by any sheriff of the county; and an indictment or information shall lie for the same.
Section 823.01(2), initially enacted in 1832, provides for the abatement of a nuisance which annoys citizens in general or which injures the public, while it also provides that the verdict in the proceeding shall be by a panel of twelve householders. Not all citizens and members of the public are householders. The panel, therefore, made up of a special segment of the general citizenry, has been empowered to determine for the general citizenry what is or is not a nuisance. The use of “special interest juries” has long been looked upon with disfavor, Thiel v. Southern Pacific Co., 328 U.S. 217, 66 S.Ct. 984, 90 L.Ed. 1181 (1946), and has been declared a violation of due process of law, Allen v. State, 110 Ga.App. 56, 63-66, 137 S.E. 2d 711, 715-17 (1964). Whatever valid reason may have existed in 1832 for restricting the jury to householders does not remain valid today, and a jury, if required, should be chosen according to the specifications and qualifications of chapter 40, Florida Statutes (1979). We hold that section 823.01(2) violates article I, section 9, of the Florida Constitution.
Appellant also contends that chapter 823 is too broad and the determination of what is a nuisance too vague for any of the provisions to be constitutional. We rejected a similar attack in Orlando Sports Stadium, Inc. v. State ex rel. Powell, 262 So. 2d 881 (Fla.1972), when we said:
A public nuisance violates public rights, subverts public order, decency or morals, or causes inconvenience or damage to the public generally. The Legislature has broad discretion to designate a particular activity to be a public nuisance. In the exercise of its police power the State has authority to prevent or abate nuisances, for police power is the sovereign right of the State to enact laws for the protection of lives, health, morals, comfort and general welfare.
Id. at 884 (citations omitted).
When the trial judge considers the granting of an injunction of a business he should, of course, enjoin only those acts which he finds to be a nuisance. Federal Amusement Co. v. State ex rel. Tuppen, 159 Fla. 495, 32 So. 2d 1 (1947).
The judgment of the trial court is vacated without prejudice to the state to institute an appropriate action in accordance with sections 823.05, 60.05, and 60.06, Florida Statutes (1979).
It is so ordered.
SUNDBERG, C. J., and BOYD, OVER-TON, ENGLAND and ALDERMAN, JJ., concur. ADKINS, J., dissents.
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The 4245 Corp. v. The City OF Oakland Park, 473 So. 2d 12 (Fla. 4th DCA 1985)…tion out of business was too drastic and its terms were overbroad. The trial court should have limited the injunction to the illegal acts of lewdness and given the corporation an opportunity to function as a legitimate enterprise. Thompson v. State, 392 So. 2d 1317 (Fla.1981); Federal Amusement Co. v. State ex rel. Tuppen, 159 Fla. 495, 32 So. 2d 1 (1947); Health Clubs of Jacksonville, Inc. v. State ex rel. Austin, 381 So. 2d 1174 (Fla. 1st DCA 1980); and Health Clubs, Inc. v. State ex rel. Eagan, 377 So. 2d 2…
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BAL Harbour Vill. v. Welsh, 879 So. 2d 1265 (Fla. 3d DCA 2004)…the exercise of its police power the State has authority to prevent or abate nuisances, for police power is the sovereign right of the State to enact laws for the protection of lives, health, morals, comfort and general welfare. Thompson v. State, 392 So. 2d 1317, 1318 (Fla.1981). In order to pass constitutional muster, however, all laws or ordinances enacted pursuant to the exercise of such police power must be reasonable and not arbitrary. See Knowles v. Cent. Allapattae Props., Inc., 145 Fla. 123, 198 So…
Authorities Cited
- Thiel v. S. Pac. Co., 328 U.S. 217 (U.S. 1946)
- Orlando Sports Stadium, Inc. v. The State of Fla. ex rel. Rom W. Powell, 262 So. 2d 881 (Fla. 1972)
- Fed. Amusement Co. v. State, 159 Fla. 495 (Fla. 1947)
- Harper v. State, 159 Fla. 495 (Fla. 1947)