Five Sky, Inc. v. State ex rel. Gerstein
131 So. 2d 39, 1961 Fla. App. LEXIS 2791 (1961)
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Rule of Law:
A court has the equitable power to enjoin the operation of an otherwise lawful business if its activities are found to be incident and conducive to the continuation of a public nuisance that the property owner has demonstrated an inability to prevent.
Facts:
- Appellants operate the Five O’clock Club, a nightclub licensed by the state and city to dispense alcoholic beverages and provide entertainment.
- The club was previously determined to be a public nuisance due to its use as a place for lewdness, assignation, and prostitution.
- In October 1960, the appellants consented to a court decree that enjoined them from permitting such illegal acts on the premises.
- Following the 1960 decree, employees of the appellants committed immoral acts on the premises on at least two separate occasions.
- The appellants made diligent, good-faith efforts to comply with the initial injunctive order.
- The court found that the service of alcoholic beverages and solicitation for drinks by employees were connected with the maintenance of the public nuisance.
Procedural Posture:
- The State’s Attorney of the Eleventh Judicial Circuit brought an action in a state trial court against the appellants, operators of the Five O'clock Club.
- In October 1960, the trial court entered a final decree by consent, which adjudicated the club a public nuisance and enjoined appellants from permitting lewdness, assignation, or prostitution on the premises.
- Subsequently, the State’s Attorney filed a petition for a rule nisi and a motion for modification of the 1960 final decree.
- The chancellor (trial court judge) held a hearing on the motion and issued an amended final decree, which permanently enjoined appellants from selling alcoholic beverages and permitting entertainment.
- The appellants (club owners) now bring an interlocutory appeal of the amended final decree to the District Court of Appeal of Florida.
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Issue:
Does a court have the authority to enjoin the operation of a licensed, legitimate business when that business is found to be incident to and conducive to the continuation of a public nuisance, and the owners have demonstrated an inability to prevent the nuisance while operating the business?
Opinions:
Majority - Per Curiam
Yes. A court has the authority to enjoin a legitimate business when its operation is inseparable from a public nuisance that the owner cannot control. The chancellor found that while the appellants did not willfully violate the prior injunction, they lacked the ability to prevent the immoral acts from occurring. The court determined the service of alcohol and entertainment were incident to and conducive to the continued nuisance. Therefore, the amended decree was not a penalty but a necessary extension of the original injunction to suppress the public nuisance, and a court has the power to deprive an owner of property use when necessary to secure such relief.
Dissenting - Carroll, Chas., J.
No. The court erred by changing the form of relief from enjoining the persons to enjoining the place of business. The original decree chose to enjoin the individuals, not abate the property, and the court should not have granted materially different relief on a mere motion to amend; a new suit was required. Furthermore, the evidence was insufficient to support a finding that the appellants negligently permitted the violations, as they had taken steps to prevent them. Since the court did not find the appellants in contempt, it was improper to escalate the remedy to closing the entire business.
Analysis:
This decision affirms the broad equitable power of courts to abate public nuisances, even at the expense of an owner's right to operate a legitimate business. The key principle established is that a court can escalate an injunction from targeting specific illegal acts to shutting down otherwise legal activities if the owner proves incapable of separating the two. This shifts the focus from the owner's intent (willfulness) to their ability to control the premises, giving courts more latitude to impose drastic remedies to protect the public welfare.
