This appeal challenges three orders entered by the Circuit Court of Dade County viz: (1) an order dated March 8, 1946, substituting as relators F.M. Williams, Glenn C. Mincer, as State Attorney, and Robert R. Taylor, as County Solicitor for the State of Florida, in lieu of Vincent C. Giblin; (2) an order dated March 12, 1946, overruling a motion to dismiss the suit made subsequent to the substitution order; (3) a permanent injunction against operating "any dice, card, roulette or other game of chance, device or implements of chance wherein or whereat persons play for money or other things of value". at certain described property in Dade County, Florida. *Page 386

I cannot close my eyes to the uncontradicted testimony of Frank M. Williams and Sidney Ross, visitors about the premises, that they saw and observed gambling, money being passed and customers using and operating the devices and gambling implements. Each qualified under the rule and testified that the place had a reputation as gambling house. Officers Quattlebaum and Linton visited the place and each observed a roulette table, roulette wheel, black jack table, dice table, two lookout stands and four chain stands and chains. Each of these officers testified that the place had a reputation as a gambling house. Beverage License No. 334, on September 25, 1945, issued to Howard Losey and was by him transferred or assigned to William D. Bartlett. Likewise a license to operate a restaurant issued October 1, 1945, to W.D. Bartlett. Club 86, by W.D. Bartlett, partner, applied for License No. 6605 for "Dance floor or entertainment." A partnership certificate was filed with the Little River Bank and Trust Company disclosing that Club 86 was a partnership composed of W.D. Bartlett, Dave Byer, C.F. Thomas and M.A. Yarbrough. See State Exhibit No. 7. Neither member of the partnership took the witness stand to testify in behalf of Club 86 in the Court below.

Howard Losey testified that he and his wife, Esther M. Losey, owned the premises known as Club 86 situated at 8600 Biscayne Boulevard in El Portal, and on June 10, 1945, leased it to W.D. Bartlett for a period of fifteen months. He explained the issuance of the liquor license in his name at the place and its transfer to W.D. Bartlett. The Chancellor below in construing the evidence offered by the State of Florida (there was none whatsoever offered by the partnership owning and operating Club 86), was forced to conclude that gambling was being operated as Club 86 contrary to law, and ordered the issuance of a permanent injunction as a matter of course. I fail to find error in this ruling.

The Chancellor sustained objections to certain questions propounded to Dr. James J. McCormick, Mayor of El Portal, who was the only witness interrogated for the defendants, viz:

"1. Q. Now, Doctor, the premises there and the business *Page 387 operated and known as Club 86, I want you to tell the court whether or not that business injuriously affects in any way the health and morals and finer sensibilities of the people of the community?

"Mr. Railey: We object, it is not an issue in this case. The issue is whether or not it is a gambling establishment.

"The Court: The objection is sustained.

"2. Q. I want to ask you, Doctor, whether or not that business operated and known as Club 86 in the municipality of El Portal is injurious in any respect by reason of the manner of its conduct, by reason of its operation, in any respect injuriously affects the welfare of the people in the immediate community where it is located?

"Mr. Railey: We make the same objection, and the further objection, it will be simply the expression of a private, individual operation.

"The Court: Sustained.

"3. Q. I want to ask one more question and then I will make a proffer. I want you to tell the court, Doctor, whether you people of El Portal consider this business operated on those premises as an asset to your community?

"Mr. Railey: We make the same objection and the further objection that he is in no position to speak for the people of El Portal. It would be an individual opinion.

"The Court: Sustained."

"Mr. Pat Whitaker: The defendants, in view of the court's ruling in sustaining the objections, now proffers to prove by this witness, the mayor of El Portal, the municipality in which the business and premises is located, which is the subject matter here under investigation, we now proffer to prove by this witness as well as a majority of the members of the city council of El Portal, a large number of Business leaders in that immediate vicinity and community, the witnesses being in addition to the witnesses now upon the stand (witnesses named.) We proffer to prove by each of these witnesses, as well as the witness now in the witness chair, that each of them live and reside in the municipality of El Portal; that they also reside in the immediate vicinity of the premises *Page 388 where this business involved here, known as the Club 86 is conducted and operated; that said club in the conduct and operation of its business does not annoy or disturb in any way the people in the immediate vicinity or otherwise; that the morals, health and finer sensibilities of the people of the community are not injuriously affected in any way by the conduct and operation of the business being carried on in said club; that they had never heard that gambling was being carried on in said premises, or heard anything thereof except as published in the newspapers of the city of Miami, a different and distinct municipality; that said business so conducted on said premises is conducted in such a manner and such a way that the people of the municipality of El Portal feel that it is an asset to said community and not detrimental to the welfare or the morals, health, comfort, or finer sensibilities of the people of said community in any way."

It will be observed that Section 823.05, F.S.A. defines a nuisance as "any house or place of prostitution, assignation, lewdness or place or building where games of chance are engaged in in violation of law or any place where any law of the State of Florida is violated, shall be deemed guilty of maintaining a nuisance." See Section 856.02, F.S.A. The Chancellor was correct in his ruling sustaining objections to the proffered testimony as made by counsel for Club 86, because the issues defined by the pleadings were limited exclusively to gambling and not that the operation of Club 86 annoyed or disturbed in any way the people in the immediate vicinity or elsewhere; or that it affected the morals, health and finer sensibilities of the people of the community; or concerned testimony of witnesses that they never heard that gambling was being carried on in said premises . . . or that the operation of the gambling house was detrimental to the welfare, morals, health, comfort or finer sensibilities of the people of the community in any way. Section 64.13, Fla. Stats. 1941 (F.S.A.), provides that actions like the cause at bar "evidence of the general reputation of the alleged nuisance and place shall be admissible for the purpose of providing the existence of said nuisance." Counsel failed in the proffer to submit testimony admissible under the rules of evidence, as will be shown by a *Page 389 study and analysis of the proffered evidence. The permanent injunction simply restrained the defendants from operating, conducting or maintaining (on the premises) any dice, cards, roulette or other game of chance, device or implement of chance wherein or whereat persons play for money or other things of value."

It is next contended that the order dismissing Giblin as relator and substituting therefor as relators F.M. Williams, the State Attorney, and the County Solicitor, of Dade County, constitutes reversible error and the motion to dismiss should have been sustained. The answer to this contention is in the language of Section 64.13, supra, viz., "No bill of complaint when filed by any citizen shall be dismissed except upon a sworn statement made by Said citizen and submitted to the court and unless the court shall be satisfied that said cause shall be dismissed, the said bill shall not be dismissed but shall continue and the state attorney or county solicitor notified to proceed with said cause." This statute confers on the Chancellor the duty to hear the cause of the relator Giblin and to dismiss or refuse to dismiss the bill. He exercised his discretion under the statute and an abuse thereof does not appear on this record. "When authority to bring the suit is properly conferred upon a private citizen, the suit is in effect one instituted in behalf of the public, and in which the public is the real complainant, to the same extent as though the Suit was brought by the Attorney General or public prosecutor." Pomano Horse Club, Inc. v. State of Florida,93 Fla. 415, (text 427), 111 So. 801.

The evidence in the record, beyond any controversy, establishes the fact that Club 86, a partnership composed of William D. Bartlett, M.A. Yarborough, C.F. Thomas and Dave Byer, located at 8600 Biscayne Boulevard, El Portal Village, Dade County, Florida, operated a gambling house; that neither of them took the witness stand or otherwise denied the gambling charges, and that the permanent restraining order entered against the partnership on the merits of this controversy, in my opinion, is free from error and should be affirmed. I fail to find evidence in record to the effect that Howard Losey and Esther M. Losey, owners of the premises, *Page 390 had knowledge that the partnership was operating a gambling house on their premises and as to them the decree should be reversed.