Fla. Literary Distrib. Corp v. State

Full title: FLORIDA LITERARY DISTRIBUTING CORPORATION, A FLORIDA CORPORATION, D/B/A…

Court: District Court of Appeal of Florida, Third District

Date published: Jan 2, 1985

460 So. 2d 1028 (Fla. Dist. Ct. App. 1985)

Opinion

Nos. 83-2877, 84-253.

January 2, 1985.

Appeal from the Circuit Court, Dade County, David L. Levy and Joseph M. Nadler, JJ.

Joel Hirschhorn and Harry M. Solomon, Miami, for appellants.

Lucia A. Dougherty and Leon M. Firtel, and Gisela Cardonne, Miami, for appellees.

Before BARKDULL, BASKIN and JORGENSON, JJ.

BASKIN, Judge.

Florida Literary Distributing Corporation (Florida Literary) appeals a final judgment finding four magazines obscene and granting a permanent injunction enjoining and restraining appellant from showing, offering for sale, or exhibiting the magazines to the public.

Florida Literary contends on appeal, as it did at the non-jury proceeding below, that appellee failed to meet its burden of proof, and that appellee's failure to offer testimony defining contemporary community standards of obscenity in Dade County precluded the issuance of an injunction as a matter of law. We agree and reverse upon a holding that absent a presentation to the trial court of testimony defining contemporary community standards of obscenity, the evidence was insufficient to support the trial court's ruling that the materials in question are obscene. See Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419, reh'g denied, 414 U.S. 881, 94 S.Ct. 26, 38 L.Ed.2d 128 (1973); Golden Dolphin No. 2, Inc. v. State, Division of Alcoholic Beverages Tobacco, 403 So.2d 1372 (Fla. 5th DCA 1981); § 847.011(11), Fla. Stat.(1981).

We agree that:

While it may be said that the trier of fact will know obscenity when he sees it (to paraphrase Justice Stewart's concurrence in Jacobellis v. Ohio, 378 U.S. 184, 197, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964), how exactly can an appellate court determine if he has properly identified the relevant community standards? See concurrence in part and dissent in part of Justice Stevens in Marks v. United States, 430 U.S. 188, 198, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977).

United States v. 2,200 Paper Back Books, 565 F.2d 566, 570 n. 7 (9th Cir. 1977). The presentation of expert testimony defining contemporary community standards is essential in cases where no right to a jury trial exists. See Golden Dolphin.

Reversed and remanded for further proceedings consistent with this opinion.

JORGENSON, Judge, concurring.

I write separately only to suggest that trial courts should consider the use of a jury in proceedings of this nature.

While a defendant ordinarily is not entitled to a jury trial in an action in equity which seeks an injunction, 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), disapproved on other grounds, Ladoga Canning Corp. v. McKenzie, 370 So.2d 1137, 1140 (Fla. 1979), it is within the trial court's discretion to permit a jury to decide the issues in a case involving equitable relief. Berg v. New York Life Insurance Co., 88 So.2d 915 (Fla. 1956); Sanitary Linen Service Co. v. Executive Uniform Rental, Inc., 270 So.2d 432 (Fla. 3d DCA 1972); St. Sophia Greek Orthodox Community v. Vamvaks, 213 So.2d 313 (Fla. 3d DCA 1968). Cases in which contemporary community standards are applied to facts in controversy are particularly suitable for juries because "[a] jury represents a cross-section of the community and has a special aptitude for reflecting the view of the average person." McKinney v. Alabama, 424 U.S. 669, 688, 96 S.Ct. 1189, 1199-1200, 47 L.Ed.2d 387, 401 (1976) (Brennan, J., concurring) (quoting Kingsley Books, Inc. v. Brown, 354 U.S. 436, 448, 77 S.Ct. 1325, 1331, 1 L.Ed.2d 1469, 1478 (1957) (Brennan, J., dissenting)). The use of a jury in this case would have obviated the necessity of the introduction of testimony defining contemporary community standards. Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590, reh'g denied, 419 U.S. 885, 95 S.Ct. 157, 42 L.Ed.2d 129 (1974); Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446, reh'g denied, 414 U.S. 881, 94 S.Ct. 27, 38 L.Ed.2d 128 (1973), cert. denied, 418 U.S. 939, 94 S.Ct. 3227, 41 L.Ed.2d 1173, motion for leave to file petition for reh'g denied, 419 U.S. 887, 95 S.Ct. 163, 42 L.Ed.2d 133 (1974); Golden Dolphin No. 2, Inc. v. State, Division of Alcoholic Beverages Tobacco, 403 So.2d 1372 (Fla. 5th DCA 1981).