Mouchas v. Stoutamire

Whitfield, J. A writ of habeas corpus was issued on a petition alleging that the petitioner “. . . is being unlawfully detained by the respondent, Frank Stoutamire as Sheriff of Leon County, Florida, under and by virtue of a warrant for the arrest of your petitioner issued by the Honorable James C. Gwynn, County Judge of Leon County, Florida, in words and figures as follows: “ ‘Warrant “ ‘In Court of County Judge, State of Florida “ ‘State of Florida v. P. S. Mouchas “ ‘Leon County *375 “ ‘In the name of the State of Florida, to the Sheriff or Any Constable of said County: “ ‘Whereas, R. W. Ashmore, Jr., has this day made oath before me that on the 2nd day of October, 1941, A.D., in the County Aforesaid, one P. S. Mouchas without having or obtaining an occupational license as required by Sec. 23 of c. 20956, Laws of Florida, Acts of 1941, did operate for profit a place, to-wit: a restaurant known as the Silver Slipper, in which he served meals to the public and for which those served paid him; and in which was located a coin operated phonograph that any person could play by depositing a coin in same; and in which there was a hall or corridor between two rows of small dining rooms and leading to the main dining room that was large enough for several couples to dance therein and in which he did permit dancing, no charge being made for the privilege of dancing and no admission fee or cover charge of any kind being made for the use and enjoyment of the said place and its facilities; “ ‘contrary to the statute in such cases made and provided and against the peace and dignity of the State of Florida; “ ‘There are, therefore, to command you to arrest instanter the said P. S. Mouchas and bring him before me to be dealt with according to law. “ ‘Given under my hand and seal this 2nd day of October, 1941. “‘(Signed) James C. Gwynn (Seal) “ ‘County Judge, Leon County’ ” “. . . Petitioner represents unto the Court that he has not violated any law of the State of Florida and that said warrant fails to state any violation of law by *376 your petitioner and is wholly insufficient to warrant the arrest and detention of your petitioner for the reason that said Sec. 23 of c. 20956, Laws of Florida, Acts of 1941, reading in part: ‘Every person who operates for profit any place where dancing is permitted or entertainment such as variety programs or exhibitions is provided for a charge, shall pay a license tax of $100.00’ does not apply to a place where dancing is permitted unless a charge is made for the privilege of dancing, and it affirmatively appears from said warrant that your petitioner does not make any charge for the privilege of dancing at the place operated by him and described in the said warrant.” The Attorney General moved that petitioner be remanded. Sec. 23, c. 20956, Acts of 1941 is as follows: “Every person who operates for profit any place where dancing is permitted or entertainment such as variety programs or exhibitions is provided for a charge, shall pay a license tax of $100.00. The license required by this Section shall be in addition to any other license required by law and the operation of such a place as herein described shall not be construed to be incidental to some other business; provided that a license may be issued for one night only, upon the payment of twenty-five dollars, but in such cases the Tax Collector must write across the license the words ‘Good for one night only.’ Provided further that this section shall not apply to entertainment given for charitable purposes, the proceeds of which are given to local charities; provided further that this section shall not apply to any place operated as a theatre or moving picture show only; provided fur *377 ther that this section shall not apply to hotels paying an occupational tax provided for in Section 21.” The statute may and does require the operator of a place for profit to pay the same separate license tax for merely permitting dancing in the place operated for profit, as is required when entertainment such as variety programs or exhibitions is provided for a charge in the place operated for profit. Certain exceptions are stated in the statute. See Levy v. Collins, Tax Collector, 143 Fla. 619, 197 So. 522. The intent and meaning of the quoted statute are that every person who operates for profit any place where dancing is permitted (with stated exceptions) shall pay an additional license tax of $100.00, or every person who operates for profit any place where entertainment such as variety programs or exhibitions is provided for a charge (with stated exceptions) shall pay an additional license tax of $100.00. The statute does not apply in the exceptional cases stated in the statute. The statutory intent is that every person (with stated exceptions) who operates for profit any place where dancing is permitted, shall pay an additional license tax of $100.00, whether or not a charge be made for dancing at the place operated for profit. Dancing is usually accompanied by music. The warrant in this case alleges that a phonograph is located in the place operated for profit by petitioner, in which place he permitted dancing, and music may be supplied by or for dancers by depositing a coin in the phonograph. Besides this, meals are served in the place; and the music and dancing add to the attractions at the place to enhance the profits from the serving of meals in the place. The words “for a *378 charge” contained in the statute are a part of, and follow the provision “or entertainment such as variety programs or exhibitions is provided” while the preceding clause relates to dancing being permitted whether for a charge or not at the place operated by the petitioner for profit. The petitioner will be remanded. Brown, C. J., Chapman, Thomas and Adams, J. J., concur. Terrell and Buford, J. J., dissent.