
    In re SMITH.
    Supreme Court of Florida. En Banc.
    July 20, 1954.
    Rehearing Denied Sept. 21, 1954.
    
      Swink & Swink, Miami, for appellant.
    Richard W. Ervin, Atty. Gen., and John C. Reed, Sp. Asst. Atty. Gen., for appellee.
   SEBRING, Justice.

The Florida Hotel and Restaurant Commission suspended the hotel license of one N. L. Smith for a period of 30 days upon the ground that the licensee had knowingly permitted the maintenance of gambling implements or apparatus upon his premises. The licensee instituted a certiorari proceeding in the Circuit Court of Dade County, Florida, to quash the order of suspension, urging as a ground for setting the order aside that the evidence upon which the suspension order was based had been procured as a result of an unreasonable, illegal and unlawful search of the premises and seizure of papers and effects of the petitioner contrary to the Federal and State Constitutions. The circuit court denied the petition for certiorari and this appeal followed.

According to the evidence in the cause, the appellant, Smith, is the leaseholder and operator of a twelve-room hotel for colored people at 710 N.W. 2d Avenue in Miami, Florida. On March 10, 1952, he was the holder of a Federal Gambling Stamp issued in his name at 353 N.W. 7th Street in Miami. In the early afternoon of March 10, 1952, two deputy sheriffs of Dade County, and four investigators from the Attorney General’s office, two of whom were deputy hotel commissioners, went to the hotel premises to make an inspection. When they reached the hotel they found the entrance door locked, and when they knocked on the door and announced that they were deputy hotel commissioners they heard a considerable amount of noise inside the building. At the same time they observed, through one of the small openings between the louvers of the entrance door, a number of Negroes rushing out of Room 4 of the hotel, which was directly opposite the entrance, and heard one of the Negroes say, “don’t open that door.” Being refused admittance through the front door, one of the members of the inspecting party went around to the side of the building and entered into the dining room of the hotel. From there he walked to the front entrance and admitted the other members of his party into the lobby.

After they had thus gained entrance into the building the two deputy hotel commissioners exhibited their commission cards and badges to the licensee, Smith, to his sister, who represented herself to be the manager of the establishment, and to others in the lobby, and asked to be admitted to Rooms 3 and 4. Admittance to the rooms was refused by Smith and his sister on the ground that the rooms were being occupied by a guest of the hotel. Later in the conversation Smith and his sister changed their story and stated that the rooms were being occupied by Smith as private living quarters.

When the members of the inspecting party continued their request for admittance Smith asked them whether they had a search warrant. To this query a member of the inspection party informed Smith that the inspectors represented the State Hotel Commission and needed no search warrant to make an inspection of the premises. Smith then informed the inspectors that he would not open the door to either room without being first served with a search warrant. At this point one -of the deputy hotel commissioners seized Smith by the belt and said to him, “You black son-of-a-bitch, unlock that door.” Smith then admitted the party to the rooms. Inside the rooms were found run-down sheets, scratch sheets and other paraphernalia commonly used in bookmaking operations. No gambling of any kind was observed by the inspectors.

Section 511.11, Florida Statutes 1951, F.S.A., provides, in part, that “The hotel commissioner shall inspect, or cause to be inspected, at least annually, every hotel, rooming house and restaurant in this state, and, for that purpose, he shall have the right of entry and access thereto, at any reasonable time.”

Section 511.051, Florida Statutes 1951, F.S.A., contains the following provision: “The hotel commissioner is hereby given full power and authority to suspend * * * any license issued by him for the operation of any hotel * * * whenever the owner, lessee, or manager, or any other person having, exclusively or with others, either direct or indirect charge, control or management of such hotel * * * knowingly lets, leases or gives space or concession for gambling purposes or where gambling is to be carried on, in any manner or by any means denounced by any statute of this state, in such hotel * * * or in or upon any premises which are used in connection with, and are under the same charge, control or management as, such hotel * * *.”

The question is whether in the light of the foregoing statute, the Circuit Court of Dade County erred, on the evidence adduced, in refusing to quash the order of suspension.

In determining this question it should be noted that the general scope of a court’s review of administrative proceedings in certiorari is well defined. As stated in City of Pensacola v. Maxwell, Fla., 49 So.2d 527, 528, “The court may inquire into the jurisdiction of the administrative body whose order is challenged. It may inspect the record of the proceedings before the administrative body to ascertain whether that body has proceeded in accordance with the authority conferred upon it by controlling law. It may examine the record to determine whether there is substantial evidence to justify the finding of the administrative body. It may not reweigh the evidence for the purpose of determining where the preponderance lies, nor substitute its judgment as to the credibility of witnesses for that of the body charged with the duty of determining the facts. Compare Florida Motor Lines v. Railroad Commission [of Florida], 101 Fla. 1018, 132 So. 851; Nelson v. State ex rel. Quigg, 156 Fla. 189, 23 So.2d 136; Pensacola Transit, Inc. v. Douglass, 160 Fla. 192, 34 So.2d 555; City of Miami v. Huttoe, Fla., 38 So.2d 819; McQuillin on Municipal Corporations, 2d Ed.Rev. Vol. 2, p. 506.” (Emphasis supplied.) When viewed in this aspect, we think that the order appealed from should be affirmed.

The intent of section 511.11, Florida Statutes 1951, F.S.A., is plain that the Hotel Commission has authority to enter and inspect the premises of licensees in connection with its duties under Chapter 511; one of these duties being to suspend licenses for violation of the gambling statutes. This Court has previously said that the commissioner “has the authority to go upon the premises of the place of business of such establishments and inspect them without search warrant or other authority of law for the purpose of determining whether or not any law with reference to the same, and also the gambling laws, are being violated.” In re Advisory Opinion to the Governor, Fla., 63 So.2d 321, 325. The commission’s right, in the words of the statute, is a right of entry and access to “every hotel * * and is not limited and confined to the public portions of such building. The contention that the rooms in question in this case were the licensee’s private “dwelling” would not, therefore, appear to be material; although the ruling of the trial court in this case could legitimately have been entered upon the premise that, in view of the first assertion that the rooms were occupied by a guest of the hotel, the licensee’s claim, as an afterthought, that he occupied the rooms as his private quarters, was not a bona fide one.

It is established that a licensee who obtains and accepts a license such as here involved becomes bound to abide and conform with the governing statutes. State ex rel. Hoffman v. Vocelle, 159 Fla. 88, 31 So.2d 52. And we have recognized that the provisions of the law relating to inspection and regulation of hotels give the officials in charge as valid a right of entry, for the purpose of inspection, as if they came equipped with a warrant. See Advisory Opinion to the Governor, supra. Clearly, tíren, the deputy commissioners were entitled to insist upon this privilege of entry into the rooms here in question as against the licensee’s refusal of permission.

In obtaining entry over such objections the inspecting officials are charged, of course, just as in the case of execution of a search warrant, with the duty of exercising care to see that no abuse or unnecessary severity occurs. However, even in the case of execution of a warrant, “The fact that,the officer commits acts not authorized by the warrant does not taint with extraneous illegality all that was done, and his acts are illegal only to the extent that they are unauthorized by the warrant.” 79 C.J.S., Searches and Seizures, § 83, p. 906. Therefore, while certain conduct of the inspectors, or the use of abusive language by one of their number during the inspection, may be subject to censure as, n.ot in keeping with the exercise of power by an agency of the government, yet that does not “taint with extraneous illegality” the entire proceedings so as to render inadmissible all incriminating evidence disclosed by the inspection, nor is the suspension order thereby rendered void.

From the record on this appeal it appears that the circuit court had substantial evidence before it in the certiorari proceeding to justify the finding and order of the Hotel Commission, and that the commission had proceeded in accordance with the authority conferred upon it by law. Consequently, the judgment appealed from should be affirmed.

It is so ordered.

ROBERTS, C. J., and. THOMAS and HOBSON, JJ., concur.

TERRELL, J., concurs specially.

DREW, J., not participating.

DAYTON, Associate Justice, dissents.

TERRELL, Justice

(concurring specially).

I agree to the conclusion in the majority opinion prepared by Mr. Justice SEBRING. Except for the fact that I am so strongly committed to our Jeffersonian Democratic policy I would refrain from saying more. I am not unaware of the broad power bestowed on law enforcement officers to apprehend those charged with anti-socia vices, but in doing so I know of no law that warrants an arresting officer in assaulting the party arrested and then affronting him with the age-old back alley epithet — son of a bitch — as a prelude to the arrest.

In Brown v. State, Fla., 62 So.2d 348, 349, this Court approved the doctrine that prohibition against unreasonable searches and' seizures is rooted deep in our legal and political heritage. In original concept it comprehended one’s house or dwelling, but the constitutional inhibition extended it to “ ‘persons, houses, papers, and effects’.”' It was designed to make them impregnable even to the King’s officers without a warrant. It has been said that one’s home may be so humble that the rain leaks through the-roof, the dog may slip through the cracks- or it may be as crude as the laborer’s shanty in the turpentine quarters, but even so, it is his castle and the King’s courier dare not enter the door except he be armed with a search warrant authorizing him to do so.

It is contended that the enforcement officers in this case were on an inspection tour as representatives of the Hotel Commission and were not required to have a search warrant... This is quite true if an inspection tour was their objective, but it is difficult to tell from the record whether they were on an inspection,tour or a,raid to catch gamblers and illicit liquor dealers. The difference is important because the latter requires a search warrant if one’s premises are to be searched. A hotel inspection only requires one inspector while it appears that there were six in the party that made the search in question, two of whom were not deputy hotel commissioners but were deputy sheriffs of Dade County.

. At any rate, whether it was an inspectiqn or a raid it was accomplished in the gestapo fashion instead of in the orderly democratic method required by the constitution. People bred and born to freedom are, quick to repel the invasion of their liberty by the curious or the evil-minded, even though they come bearing some badge of authority. It has been said that the greatest danger to liberty lurks in the insidious encroachment on it by men of zeal, well-meari-’ ing but devoid of understanding. As Mr. Justice Brandéis once pointed out, “experience should teach us to be most on our guard to protect liberty when the government’s purposes are beneficient.” ' There is no surer way to whittle away our constitutional heritage of freedom than to administer it by totalitarian methods. Assaults on our liberties from the inside by those expected to protect them are often more dangerous than those of avowed, enemies from without.

Liberty must be merited in order to preserve it. There is no better authenticated fact of history than that republics fold up and disappear as'the people cease to be vigilant. Soon after the constitution was signed a lady is said to have asked Benjamin Franklin: “What have you given us?” “A republic,” said Mr. Franklin, “if you can keep it.” ' Democracies do not vanish over night. They do so by a gradual whittling away of the people’s liberties. Transition of the Roman Republic to the Roman Empire was accomplished through inch by inch subtraction of the people’s liberties. One could as successfully administer a Sunday School by illicit gambling precepts as he could a Christian democracy by totalitarian precepts.

The makers of the constitution despised and condemned tyrannical exhibition of power and pointed out the way it should be accomplished in a free country like ours. The trial court found that such ábuse of power as indicated here did not vitiate the inspection nor the suspension order. This view appears to be supported on good authority to which I feel impelled to agree-; at the same time, for the reasons detailed, I cannot refrain from condemning the means employed to accomplish the, result.

ROBERTS, C. J., • and HOBSON, J.5 concilr. ‘ ’ • ■ ' ¡ ,

DAYTON, Associate Justice

(dissenting)-

I am unable'to agree to the conclusions expressed in the majority opinion.

It is my view that absent any proof whatever that the seized'' paraphernalia was actually used in a gambling operation, its mere possession does not constitute substantial .evidence . upon which to base an order, suspending the hotel license of appellant.. It is my opinion, also, -that the “inspection” made by the officers in this case was in fact an unreasonable search and seizure in violation of the. rights of appellant under Section 22 of the Declaration of Rights of the Constitution of Florida, F.S.A., and the Fourth Amendment to the .Constitution of the United States.

The order of suspension was based upon a finding by the Hotel Commission that appellant had “ * * * permitted the maintenance of gambling implements or apparatus upon the licensed premises.” The gambling implements or ápparatus were a quantity of “Harvey A. Junior Sports Digest”, some “Reno” tickets and certain “run down sheets, scratch sheets and other paraphernalia CommOnly used in bookmaking operations.” ' It does not app'ear from the record that" the possession of a “Harvey A. Junior Sports Digest” is illegal. ;The record described the “Reno” tickets as .being several years old. The “run down sheets and scratch sheets” had figures written on them. The evidence is sufficient to create a strong suspicion of gambling activity upon the premises searched. However, it is not evidence which creates a suspicion that is “substantial evidence.”

“The rule as to substantiality is not different, we think, from, that to be applied .in reviewing the refusal to direct a verdict at law, where the lack of substantial evidence is the test of the right to a directed verdict. In either case, substantial evidence is evidence furnishing a substantial basis of fact from which the fact in issue can reasonably be inferred; and the test is not satisfied by evidence which merely creates a suspicion or which amounts to do more than a scintilla or which gives equal support to inconsistent inferences.” Appalachian Electric Power Co. v. N.L.R.B., 4 Cir., 93 F.2d 985, 989. Cf. Pennsylvania R. Co. v. Chamberlain, 228 U.S. 333, 339, 343, 53 S.Ct. 391, 393, 394, 77 L.Ed. 819.

In Solomon v. State, 115 Fla. 310, 156 So. 401 this Court reviewed the evidence which formed the basis of a conviction on criminal charges where the officers entered without a search warrant and seized certain “race charts, scratch sheets, betting sheets, and tickets” although the officers were unable to testify that any gambling was being conducted in the room or with the implements and apparatus at the time they entered the room. This Court there said “The implements and apparatus described in the information were seized by the officers at the time they entered the room without being armed with a search warrant. Inasmuch as the officers were unable to say that any crime was being committed when they entered the room, there can be no question that the seizure was in violation of section 22 of the Declaration of Rights of the state of Florida [F.S.A.] and the Fourth Amendment of the Constitution of the United States.”

It is my opinion, therefore, that the possession of the described paraphernalia which is susceptible to the use of a bookmaking operation, absent any proof whatever that it was so used, is not substantial evidence of gambling.

It is abundantly clear to me that the sole purpose of this inspection was to raid the premises to obtain evidence of gambling. No explanation is given for the presence of two Assistant Attorneys General of Florida and two Deputy Sheriffs of Dade County to assist the two Deputy Hotel Commissioners in making an inspection of a twelve-room Negro hotel. It seems unlikely that a routine inspection of a small rooming house would require the presence of six men at public expense for that purpose.

Although the officers claimed the right to make the inspection conferred upon the Hotel Commission in the first paragraph of Section 511.11 Florida Statutes 1951, F.S.A., they ignored the duty imposed by the second paragraph of the same Section, to make a report of the inspection on a form provided by the Commission, and to post a copy of such report in the premises inspected. No attempt was made to comply with this latter provision.

The intent of the members of the inspection party is further demonstrated by the testimony of Deputy Hotel Commissioner Gasque, part of which appears in the record as follows:

“Q. It was your purpose to raid the hotel, was it not? A. It was my purpose to go in and see if there was any gambling in evidence in there, and if there was I was going to put somebody in jail.

The testimony of Assistant Attorney General John C. Reed on this point is also significant:

“Q. (By Mr. Swink) Mr. Reed, it is true, isn’t it, that for the purpose of yourself and the Sheriff’s Department and the Attorney General’s office to conduct an investigation at the Smith Hotel was to determine whether or not gambling was there, was it not? A. That’s right.
“Q. You did not go out there for the purpose of inspecting the premises because you were with the Hotel Commission? A. It was because we had information they were gambling.”

I am in accord with the observation of Mr. Justice TERRELL in his special concurring opinion that the difference between an inspection tour and a raid to catch gamblers as the objective of the officers is important “ * * * because the latter requires a search warrant if one’s premises are to be searched.” That it was a search rather than an inspection as contemplated by Section 511.11 supra is apparent from the testimony of My. Reed who said that he “went through all the dresser drawers in Room 3”; that the “Reno” tickets were found “in the dresser” and certain other pieces of paper identified as Exhibit No. 8 were found in “either of three places, in the desk, the dresser, or the box.”

The evidence in behalf of the Commission shows that the rooms searched contained letters addressed to the licensee together with his clothing, shaving equipment, and other personal effects.

When the officers were halted by Smith they could have availed themselves of the • remedy for such situations provided by Section 511.41 Florida Statutes 1951, F. S.A., which Section makes it a misdemeanor punishable by fine or imprisonment for the manager or person in charge of the licensed premises sought to be inspected to hinder or interfere with a Deputy Hotel Commissioner in the performance of his duties. There is nothing in the record here to indicate that the officers in this case sought the remedy provided by the above Section.

There is no question that the interest of the public welfare requires the regular inspection of hotels, rooming houses, apartment houses and restaurants. There is likewise no question that the preservation of our organized and orderly society requires that police officers must wage a continuing battle against the forces of organized crime. Some flexibility of judgment on the part of such officers is necessary and to this end the language of Section 22 of the Declaration of Rights of the Florida Constitution, F.S.A., and the Fourth Amendment to the Constitution of the United States is significant in that it is only unreasonable searches and seizures that are prohibited. United States v. Rabinowitz, 1950, 339 U.S. 56, 70 S.Ct. 430, 435, 94 L.Ed. 653.

“ * * . * the relevant test; is not whether it is reasonable to procure a search warrant, but whether the search was reasonable. That criterion in turn depends upon the facts and circumstances — the total atmosphere of the case.” United States v. Rabinowitz,, supra.

The purpose of requiring a search warrant before officers of the law may search one’s premises is not to shield criminals nor to make the home a safe haven for criminal activity, but to place between the police officer and the citizen the objective mind of a magistrate in order that the need to invade one’s privacy may be weighed against the necessity to enforce the law. McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153.

This Court has held that a statute which purports to delegate to certain officers authority to enter certain premises without a search warrant must be strictly construed. Solomon v. State, supra. The statement of this Court, in Re Advisory Opinion to the Governor, Fla., 63 So.2d 321, 325, that the Hotel Commissioner “has the authority to go upon the premises of the place of business of such establishments and inspect them without search warrant or other authority of law for the purpose of determining whether or not any law with reference to the same, and also the gambling laws, are being violated” in my opinion does not, and indeed cannot, confer upon the Hotel Commissioner any authority to exceed the limitations against unreasonable searches and seizures imposed by the State and Federal Constitutions.

The statute which delegates to the State Hotel Commissioner authority to inspect hotels, apartment houses and restaurants “at any reasonable time”, in my opinion, must require that such inspection be made in a reasonable manner and that the inspecting officers be held to strict accountability not to exceed the limitations imposed by the State and Federal Constitutions.

Many people in Florida make their homes in hotels and. apartment houses. A reasonable inspection óf such premises for the proper enforcement of the requirements of law as to health and sanitary measures is essential:" It does not follow, however, that by choosing to dwell in a hotel or apartment house a citizen has forfeited his constitutional right to immunity from unreasonable searches and seizures, whether he be landlord or tenant, innkeeper or guest. The law which authorizes such inspection was not designed to provide a subterfuge whereby officers of the law can successfully circumvent the provisions of the State and Federal Constitutipns for the protection of a citizen’s right,to privacy.

• It is one thing for a state official to request admission to an apartment or hotel room at a reasonable time for the purpose of looking at the window screens, lighting fixtures, fire escapes, bathroom and sanitary facilities in order that the innkeeper may be graded upon the quality óf the accommodations and services provided by his establishment. If in the course of the proper performance of his duties such inspector observes evidence of gambling, such evidence is admissible to support a criminal charge against the individual or to furnish a basis for the revocation of his license. If the Deputy Hotel Commissioner is hindered or obstructed in the proper discharge "of his duties by the owner, manager, agent or person in charge of the licensed premises such person may be prosecuted as provided by Section 511.41 supra, and, in my opinion, such conduct on the part of the person in charge, of the premises sought to be inspected may properly furnish the basis for an order suspending or revoking the license -as provided by Section 511.05 Florida Statutes 1951, F.S.A., as being a violation óf the provisions of said Chapter 511.

It is something entirely different, however, when a group of. state officials permit one of their number to commit a physical assault upon a citizen and subject him to verbal abuse, then invade the privacy of his home and ransack his bureau and dresser drawers for the purpose of obtaining evidence of gambling. The test supplied by United States v. Rabinowitz, supra, should be applied here. In the light of thé facts, the circumstances and the atmosphere of the case, was the search reasonable? It is my considered opinion that in this case it was not.

For the reasons above expressed I feel that judgment of the lower Court should be reversed.  