City of Miami Beach
v.
Cohen

Not overruled or negatively treated on appealinfoCoverage
Supreme Court of Florida, en BancAug 1, 1950
47 So. 2d 565 (Fla. 1950)

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August 1, 1950.

Petition for review from the Circuit Court, Dade County, George E. Holt, J.

Ben Shepard, Miami, and Irving Cypen, Miami Beach, for petitioner.

Black, Pearlman Cooper, Miami Beach, for respondent.


This is a proceeding wherein this court is asked to grant a constitutional writ of certiorari to review a judgment of the Circuit Court of Dade County reversing a judgment of the Municipal Court of Miami Beach, Florida.

From the record it appears that the respondent, Samuel Cohen, is one of the owners of the Hotel Sherry Frontenac situated in Miami Beach, Florida. Located in the hotel is a cocktail lounge and bar known as the Pompadour Room. On December 23, 1949, Cohen was tried and convicted in the Municipal Court of Miami Beach under a criminal warrant issued by the City charging that he "did violate an ordinance of the City of Miami Beach by permitting or allowing music or other form of entertainment in the place of business known as the Pompadour Room other than string music, mechanical phonograph and radio, to-wit: permitting and allowing Ralph Passer, mentalist, and Nino Yacovino, master of ceremonies, to perform."

The evidence upon which Cohen was convicted was that the Sherry Frontenac Hotel had a vendor's liquor license entitling the hotel to sell liquor on the premises but did not hold a night club license. Throughout the evening of December 11, 1949 Cohen permitted a five-piece orchestra to be played in the Pompadour Room of the hotel for the entertainment of the guests; the instruments used being a piano, a bass viol, a trumpet, a saxophone and various types of drums. About 11 o'clock in the evening one Nino Yacovino, a professional dancer who maintained a studio in the hotel, came to a microphone installed in the Pompadour Room and announced that it was show time. After this announcement he sang and danced with orchestra accompaniment and at the end of this exhibition introduced one Passer, a self-styled mind reader, who amused and diverted the guests with an exhibition of his pretended telepathic powers.

The evidence did not show that the noise from this entertainment could be heard at a distance of more than fifty feet from the place of business of the vendor, and it does not appear from the evidence that any entertainment was offered at the hotel after 12 o'clock midnight.

The conviction of Cohen rests upon the fact that he permitted music other than by a string orchestra, mechanical phonograph or radio to be played in the Pompadour Room of his hotel and allowed Yacovino and Passer to entertain the hotel guests by singing, dancing and putting on a "mind reading" act, in violation of section 18 of Ordinance No. 391 of the City, which reads:

"Section 18. No licensed Vendor, except Night Clubs, as in this Ordinance defined, shall permit or allow any music or other form of entertainment in the place of business of such Vendor, or in any room connecting directly therewith through doors or other means of ingress or egress; provided, however, that orchestra music may be provided in restaurants or dining rooms equipped with a service bar not accessible to the public up to, but not later than 12:00 o'clock midnight; and provided, further, that string music, mechanical phonograph and radio, the sound of which is not audible a distance of more than fifty (50) feet from the place of business of the Vendor, may be provided by a Vendor licensed under subsection (g) and (j) of Section 7 hereof, until 12:00 o'clock midnight."

Cohen perfected an appeal from the judgment of the Municipal Court. On the appeal the Circuit Court of Dade County set aside the judgment, holding "that section 18 of said ordinance, supra, insofar as the music or other form of entertainment is concerned, is discriminatory, arbitrary and unreasonable as the same affects appellant."

We find no error in this ruling.

It is well settled in this jurisdiction that in the exercise of its police power a municipality may regulate and restrict liquor vendors in the operation of their businesses. In so doing the municipality has a wide discretion in classifying such liquor vendors and may enact restrictions and regulations to that end, so long as such restrictions and regulations are on a reasonable and practicable basis as to each classification sought to be regulated.

The manifest object of the ordinance in question is to keep down unusual noise and sound in and about places other than night clubs, where liquor is sold for consumption on the premises, because it is provided by the ordinance that no music shall be played which may be heard at a distance of more than 50 feet from the place of business of the vendor. The means, however, by which the municipality seeks to accomplish this object is plainly arbitrary and unreasonable. The ordinance allows the playing of string music, mechanical phonograph or radio in a vendor's place of business but prohibits music played by other types of instruments, as, for example, brass instruments or drums. Stated differently, the ordinance forbids the playing of brass or percussion instruments by musicians actually present on the premises but allows this form of music to be played by means of phonograph or radio. Such a classification is entirely artificial and unreasonable and cannot be said to rest upon any sound or reasonable basis.

Whether such a difference exists between night clubs and other types of liquor vendors as to justify the placing of such establishments in different classifications for the purpose of regulation and control is a question not before us on the record and hence will not be decided.

We hold that the petition for certiorari should be denied.

It is so ordered.

TERRELL, CHAPMAN and HOBSON, JJ., concur.

ADAMS, C.J., and THOMAS and ROBERTS, JJ., agree to conclusion.