RICHARD E. GERSTEIN, AS STATE ATTORNEY OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR DADE COUNTY, FLORIDA, APPELLANT,
v.
"PLEASURE WAS MY BUSINESS," AS A BOOK, AND ARAM P. GOSHGARIAN, AS AN INDIVIDUAL, THE BOOKWORM, INC., A CORPORATION, HERBERT CREAM, ED LEWEN, ALSO KNOWN AS EDWARD LEWEN, AND HAROLD LEWEN, AS INDIVIDUALS, AND S. ROBERT TRALINS AS AN INDIVIDUAL, AND LYLE STUART, AS AN INDIVIDUAL, APPELLEES; S. ROBERT TRALINS, APPELLANT, V. RICHARD E. GERSTEIN, AS STATE ATTORNEY OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR DADE COUNTY, FLORIDA, APPELLEE
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The State Attorney sought to have a book declared obscene under Florida law, but the trial court denied his motion for summary judgment, finding a genuine issue of material fact regarding the book's obscene character that required a factfinder to determine community standards. The appellate court affirmed the denial of summary judgment and also rejected a separate appeal by a defendant challenging the denial of a jury trial in this equitable proceeding.
The trial court did not err in denying summary judgment because determining the contemporary community standards by which obscenity is measured is a factual question that must be decided by the factfinder, potentially with expert testimony. A jury trial is not constitutionally or statutorily required in a declaratory decree proceeding seeking an obscenity determination, as such trials are permissive but not mandatory.
“It was within the province of the court, as trier of the facts, to determine the contemporary community standards by which obscenity should be measured and apply them to the questioned publication.”
Establishes that determining community standards for obscenity is a factual determination that must be made by the trial court, not resolved on summary judgment.
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Join FLexlaw to unlock all legal intelligenceThe State Attorney brought an action seeking to have the book 'Pleasure Was My Business' declared obscene under Florida Statute § 847.01. The trial co…
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In case #61-660, appellant Gerstein seeks review of an order denying his motion for *9ia summary decree in an action seeking-to have the hook “Pleasure Was My Business” declared obscene within the meaning of § 847.01, Fla.Stat., F.S.A. It should he noted that we are not here called upon to decide the effect on this or similar cases of Chapter 61-7, Laws of Florida, Regular Session, 1961, which was passed while this action was pending and which repealed § 847.01, Fla.Stat., 1959.
The trial court stated in its order that it was prevented from entering a summary decree by the presence of a genuine issue of material fact, the obscene character of the book, which it felt should be judged by the court sitting as a trier of fact upon the presentation of testimony of expert witnesses to establish and prove the contemporary community standards in Dade County by which obscenity should be measured.
The determinative question here is . whether the trial court erred in denying the state’s motion for summary judgment. We hold that it did not.
It was within the province of the court, as trier of the facts, to determine the contemporary community standards by which obscenity should be measured and apply them to the questioned publication. It was equally within its province to seek aid, in the form of expert testimony, in making this determination. See State v. Clein, Fla.1957, 93 So.2d 876; Rachleff v. Mahon, Fla.App.1960, 124 So.2d 878.
In case #61-661, appellant Tralins contends that it was error for the trial court to deny his motion for a jury trial on the issue of obscenity.
This action was equitable in nature, styled on the chancery side, and sought a declaratory decree. We affirm the denial of appellant’s motion for a jury trial on the authority of Rachleff v. Mahon, supra, at p. 881, 124 So.2d at p. 881, where the court said:
“We know of no constitutional or statutory requirement of jury trial in this kind of declaratory • decree proceeding * * *. Jury trial of issues under the Declaratory Decree Statute, F.S., Ch. 87, F.S.A., is permissive, but not mandatory, in certain instances, Sec. 87.08.”
See also Olins, Inc. v. Avis Rental Car System of Florida, Fla.App.1961, 131 So.2d 20.
Affirmed.
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F.R.W.P., Inc. v. The Home Ins. Co., 450 So. 2d 914 (Fla. 4th DCA 1984)…uding those raised in the declaratory action, entitled FRWP to a jury trial. In a declaratory action based on equitable claims, the right to a jury trial is directory (permissive). § 86.071, Fla.Stat. (1983); Gerstein v. “Pleasure Was My Business”, 136 So. 2d 8 (Fla. 3d DCA 1961); Rachleff v. Mahon, 124 So. 2d 878 (Fla. 1st DCA 1960). However, when the action is based upon common law claims the right to a jury trial is mandatory. Olin’s, Inc. v. [*916] Avis Rental Car System of Florida, 131 So. 2d 20 (Fla.…
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S. Fla. ART Theaters, Inc. v. State of Fla. ex rel. Marvin U. Mounts, Jr., 224 So. 2d 706 (Fla. 4th DCA 1969)…to § 847.011 was [*710] 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…
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Tralins v. Gerstein, 151 So. 2d 19 (Fla. 3d DCA 1963)…temporary community standards by which obscenity should be measured and, applying these standards and the test set forth above, to determine whether or not a given publication is in fact obscene. Gerstein v. “Pleasure Was My Business,” Fla.App.1961, 136 So. 2d 8; Rachleff v. Mahon, supra; State v. Clein, Fla.1957, 93 So. 2d 876. An appellate court will not substitute its judgment on these questions for that of the trier of fact absent a compelling reason to do so apparent in the record. See Rachleff v. Maho…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Olin's, Inc. v. AVIS Rental CAR Sys. OF Fla., 131 So. 2d 20 (Fla. 3d DCA 1961)
- State v. Reubin J. Clein, 93 So. 2d 876 (Fla. 1957)
- Rachleff v. Lacy Mahon, Jr., 124 So. 2d 878 (Fla. 1st DCA 1960)