FOR ADULTS ONLY, INC., A FLORIDA CORPORATION, ET AL., APPELLANTS,
v.
STATE OF FLORIDA EX REL. RICHARD E. GERSTEIN, AS STATE ATTORNEY OF THE 11TH JUDICIAL CIRCUIT OF THE STATE OF FLORIDA, APPELLEE
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For Adults Only, Inc. appealed a permanent injunction issued under Florida's obscenity statute prohibiting the sale and distribution of certain sexually explicit materials. The court affirmed the injunction, rejecting constitutional challenges to the statute and finding the defendants had not properly requested a jury trial and that the injunction was sufficiently specific.
The court held: (1) the Florida obscenity statute is constitutional; (2) defendants were not entitled to a jury trial because they did not properly request one and equity actions for injunctive relief do not ordinarily require jury trials; (3) claims under § 847.011(7) need only be proven by a preponderance of the evidence, not beyond reasonable doubt; (4) the State Attorney had proper authority to bring the action; (5) the notice to produce was not a court order subject to review; (6) defendants waived any objection to the basis of the injunction by requesting its issuance without further hearing; and (7) the injunction was sufficiently specific in naming eleven prohibited displays, poses, or actions.
[1] Florida's obscenity statute has been held constitutional by the Florida Supreme Court.
[2] A defendant is generally not entitled to a jury trial in an action in equity seeking an injunction to abate a nuisance.
Previewing 2 of 6 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“It is not necessary, in our opinion, to prove claims in an action seeking equitable relief under § 847.011(7) Fla.Stat., F. S.A., beyond and to the exclusion of every reasonable doubt but only by a preponderance of the evidence.”
Establishes that the burden of proof in obscenity injunction proceedings under the statute is preponderance of the evidence, not the criminal standard of beyond reasonable doubt.
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Join FLexlaw to unlock all legal intelligenceThe State Attorney brought an action under Florida Statute § 847.011 seeking an injunction to abate obscene materials. The trial court issued a tempor…
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Defendants appeal from a permanent injunction issued pursuant to § 847.011(7), Fla.Stat., F.S.A.
On appeal defendants argue that Florida obscenity statute [§ 847.011, F.S.] is unconstitutional. ' This argument has been rejected by the Supreme Court of Florida in Mitchem v. State ex rel. Schaub, Fla.1971, 250 So.2d 883. See also Mitchum v. State, Fla.App.1971, 251 So.2d 298.
Defendants also seek reversal because they claim they were denied a jury trial on the issue of obscenity and because the trial court did not require the state to prove certain magazines obscene beyond and to the exclusion of every reasonable doubt. An examination of the record shows defendants never properly requested a jury trial in this proceeding. R.C.P. 1.430(b), 30 F.S.A. In addition, a defendant is ordinarily not entitled to a jury trial in an action in equity which seeks an injunction to abate a nuisance, and the statute under which this action was brought specifically authorizes the Circuit Court *914Judge to grant such an order. See § 847.011(7) (a, b and c) Fla.Stat., F.S.A.
It is not necessary, in our opinion, to prove claims in an action seeking equitable relief under § 847.011(7) Fla.Stat., F. S.A., beyond and to the exclusion of every reasonable doubt but only by a preponderance of the evidence. See Kahm v. United States, 300 F.2d 78 (5 Cir. 1962), cert. den. 369 U.S. 859, 82 S.Ct. 949, 8 L.Ed.2d 18. We find no error under these two claims of the defendants.
Defendant’s assertion that a special assistant attorney general does not have any legal authority to file a complaint and litigate a civil case under Chapter 847.011 is without merit as the complaint herein reveals the signature of Richard E. Gerstein, State Attorney of the Eleventh Judicial Circuit of the State of Florida. See also Jerry v. State, Fla.1930, 99 Fla. 1330, 128 So. 807.
Defendants attack a notice to produce as "vague, ambiguous and overbroad” and says the permanent injunction issued as a result thereof should be reversed. The “Notice to Produce” challenged herein was not an order of the trial court but was simply a notice filed by plaintiff. Defendants voluntarily complied with the notice and produced the requested materials. We hold that the Notice to Produce was not a court order and there has been no judicial action by the trial court in this regard which we could, or should, review.
Defendants assert the permanent injunction is invalid because it issued solely on the basis of two magazines which were introduced into evidence. We hold defendants invited this error, if any there be, by advising the court “I respectfully request you convert that temporary restraining order into a final order without further hearing.” The trial court also found these magazines to be autoptically pornographic in violation of Fla.Stat., F.S.A. § 847. See Collins v. State Beverage Department, Fla.App. 1970, 239 So.2d 613.
Finally, defendant says the permanent injunction was too broad, vague and ambiguous and is, therefore, invalid. This permanent injunction did not prohibit the sale of “obscene” literature. It named specifically eleven different displays, poses, or actions which defendants were prohibited from selling, distributing, or advertising. We have examined the permanent injunction and are of the opinion that it is sufficiently specific to direct defendants as to what they are required to do under its requirements. 17 Fla.Jur. Injunctions § 83.
The permanent injunction is, therefore,
Affirmed.
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United Theaters OF Fla., Inc. v. State of Fla. ex rel. Richard E. Gerstein, 259 So. 2d 210 (Fla. 3d DCA 1972)…gate this issue was not raised in the trial court and will not be heard on appeal. Silver v. State, Fla.1966, 188 So. 2d 300; and Stephan v. State, Fla. App.1971, 251 So. 2d 30. See also For Adults Only, Inc. v. State ex rel. Gerstein, Fla.App.1972, 257 So. 2d 912. Appellants contend there was error in that portion of the permanent injunction which restrained it from showing these specific films at any public place in Dade County or the State of Florida. This court has decided that an injunction against the…
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Clark v. Allied Assocs., Inc., 477 So. 2d 656 (Fla. 5th DCA 1985)…of Plaintiff’s motorized exercise equipment. This language fails to designate with sufficient particularity the acts, machines or things enjoined against and it is therefore also overly broad. Compare For Adults Only, Inc. v. State Ex Rel Gerstein, 257 So. 2d 912 (Fla. 3rd DCA 1972), cert. denied, 292 So. 2d 592 (Fla.1974). Finally, we strike the last portion of the permanent injunction ordering the defendant to deliver drawings, materials, photographs, and machines to the plaintiff. Equity will not injunct…
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Adkins v. Winkler, 592 So. 2d 357 (Fla. 1st DCA 1992)…third party complaints and answers; and a reply. See Fla. R.Civ.P. 1.100(a). . See Wertman, 166 So. 2d at 667-68. . Although a party is not ordinarily entitled to a jury trial in actions in equity, For Adults Only, Inc. v. State ex rel. Gerstein, 257 So. 2d 912 (Fla. 3d DCA 1972), cert. denied, 292 So. 2d 592 (Fla.1974), an action for replevin entitles a party to jury trial. Blackburn v. Blackburn, 393 So. 2d 51 (Fla. 2d DCA 1981).…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Kahm v. United States, 300 F.2d 78 (5th Cir. 1962)
- Jackson v. United States, 369 U.S. 859 (U.S. 1962)
- Kahm v. United States, 369 U.S. 859 (U.S. 1962)
- Mitchem v. State of Fla. ex rel Frank Schaub, 250 So. 2d 883 (Fla. 1971)
- Mitchum v. State, 251 So. 2d 298 (Fla. 1st DCA 1971)
- Collins v. State Bev. Dep't of Fla., 239 So. 2d 613 (Fla. 1st DCA 1970)
- Jerry v. State, 99 Fla. 1330 (Fla. 1930)