Misty's Cafe, Inc. v. Leon County
1994 Fla. App. LEXIS 7492, 640 So.2d 170, 1994 WL 391333 (1994)
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Rule of Law:
Under Florida law, a non-chartered county ordinance is not rendered ineffective in incorporated areas due to a 'conflict' with a municipal ordinance unless the two ordinances are mutually exclusive and cannot coexist.
Facts:
- In October 1993, Misty's Cafe, Inc. began operating a restaurant in an incorporated area of Leon County, Florida.
- Misty's Cafe featured dancers who wore shirts but were otherwise nude, referred to as 'bottomless' dancers.
- Article VII of the Leon County Code prohibits 'nude or semi-nude entertainment' (defined to include display of buttocks, genitals, or female breast at or below the areola) in commercial establishments where alcoholic beverages are available.
- Chapter 15, Section 15-22 of the Tallahassee Municipal Code prohibits females from appearing in places where food or alcoholic beverages are sold if one or both breasts are 'wholly or substantially exposed to public view.'
Procedural Posture:
- Leon County sought an injunction in a lower court (trial court) to prohibit Misty's Cafe, Inc. from operating its establishment in violation of the Leon County Code.
- Misty's Cafe, Inc. argued in its memorandum of law opposing the injunction that the county ordinance conflicted with the city ordinance and that the county lacked authority to regulate alcohol sales in incorporated areas.
- The lower court issued an order granting the injunctive relief sought by Leon County.
- Misty's Cafe, Inc., as the appellant, appealed the lower court's order to the Florida First District Court of Appeal.
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Issue:
Does a Leon County ordinance prohibiting nude or semi-nude entertainment conflict with a Tallahassee municipal ordinance prohibiting topless entertainment, thereby making the county ordinance ineffective in incorporated areas under Article VIII, Section 1(f) of the Florida Constitution?
Opinions:
Majority - PER CURIAM
No, a Leon County ordinance prohibiting nude or semi-nude entertainment does not conflict with a Tallahassee municipal ordinance prohibiting topless entertainment, and therefore the county ordinance remains effective in incorporated areas. The court explained that Article VIII, Section 1(f) of the Florida Constitution provides that a non-chartered county ordinance is ineffective in incorporated areas only when it is 'in conflict' with a municipal ordinance. Citing Florida Board of County Commissioners of Dade County v. Wilson and State ex rel. Dade County v. Brautigam, the court noted that an ordinance is 'in conflict' when it is not able to 'coexist' with another provision. Here, the county ordinance is broader in scope than the city ordinance, but they are not mutually exclusive; they can coexist. The court rejected the argument that a county ordinance must yield in incorporated areas if it is not identical in scope to a city ordinance, as this would improperly limit counties to only mirroring existing city ordinances. The court concluded that the ordinances coexist and, by their mutual operation, prohibit nude dancing (both 'bottomless' and 'topless') in both incorporated and unincorporated areas of the county. The court also dismissed the argument regarding conflict with Section 125.01(1)(o), Florida Statutes, by deferring to prior precedent in Fillingim v. State, and declined to address the 'void ab initio' argument regarding the ordinance's enactment because it was not raised in the lower court and did not constitute 'fundamental error' going to the foundation of the case.
Analysis:
This case is significant for clarifying the interpretation of 'in conflict' under Article VIII, Section 1(f) of the Florida Constitution, particularly for non-chartered counties. It establishes that a county ordinance does not conflict with a municipal ordinance merely because it is broader in scope, as long as the two can 'coexist' and are not mutually exclusive. This allows counties to implement more comprehensive regulations in areas where a city has enacted a narrower, but not contradictory, ordinance. The decision supports a supplemental rather than pre-emptive relationship between certain county and municipal laws in Florida.
