
    The CITY OF MIAMI BEACH, a Florida Municipal Corporation, Petitioner, v. Abraham SILVER, Respondent.
    Supreme Court of Florida. Division A.
    Nov. 19, 1954.
    Ben Shepard, Miami, and Joseph A. Wa-nick, Miami Beach, for petitioner.
    Aaron M. Kanner and Daniel Neal Heller, Miami, for respondent.
   TERRELL, Justice.

We considered and disposed of one phase of this case in City of Miami Beach v. Silver, Fla., 67 So.2d 646. When the mandate went down an amended complaint was filed, the trial court held it to be sufficient, so the city has appealed by certiorari from that decree.

The pertinent part of the decree appealed from enjoined the defendant from instituting or prosecuting criminal charges against appellee that may arise from the enforcement of Section 19 of Ordinance 289, City of Miami Beach, as amended- September 5, 1951, with regard to the use by appellee of certain described property at 6396 Collins Avenue, Miami Beach, until further order of the ’ Court.

The sole point for determination is whether or not the trial court committed error in granting the temporary restraining order.

Respondent was a practicing physician; using the property in question as his home and for treating patients who applied to him. The city refused him a certificate to use it for treating patients, prosecuted, convicted and fined him for doing so. ■ .The property in question is in an area bounded by a main highway, gasoline filling stations and parking lots. The locality is zoned against use for business offices. The city refuses to let him use his property to practice his profession for that reason. It is contended that. the zoning ordinance in question is discriminatory, arbitrary, oppressive and violative of' the State and Federal Constitutions.

Like the trial court, we are of the view that the amended complaint shows that respondent does not intend to operate a clinic,- rest home, dispensary, health station or hospital on his property but metely desires to treat the sick and heal the wounded that apply to him in person, that he does not specialize in children’s diseases, is not a surgeon, performs no major surgery and that' there will be no annoying noises, smells or obnoxious odors emanating from his place.

On the showing so made we think the chancellor did not abuse his discretion in entering the restraining order, so the cer-tiorari is denied.

It is so ordered.

ROBERTS, C. J., and SEBRING and MATHEWS, JJ., concur.  