Silvio Membreno & Fla. Ass'n of Vendors, Inc. v. City of Hialeah

• Decision Date: 09 March 2016
• Docket Number: No. 3D14–2603.,3D14–2603.
• Citation: 188 So.3d 13
• Parties: SILVIO MEMBRENO AND FLORIDA ASSOCIATION OF VENDORS, INC., Appellants, v. The CITY OF HIALEAH, Florida, Appellee.
• Court: Florida District Court of Appeals

188 So.3d 13

SILVIO MEMBRENO AND FLORIDA ASSOCIATION OF VENDORS, INC., Appellants,

v.The CITY OF HIALEAH, Florida, Appellee.

No. 3D14–2603.

District Court of Appeal of Florida, Third District.

March 9, 2016.

Institute for Justice, and Justin Pearson and Robert Peccola, for appellants.

Lorena Bravo, City Attorney; Akerman LLP, and Michael Fertig and Jennifer Cohen Glasser, for appellee.

Before ROTHENBERG, SALTER, and LOGUE, JJ.

LOGUE, J.

Silvio Membreno and the Florida Association of Vendors, Inc.(collectively, "the Street Vendors") appeal the decision of the trial court upholding the constitutionality of the City of Hialeah's 2013amendments to its ordinance governing street vendors.We affirm on all points raised.In light of Estate of McCall v. United States,134 So.3d 894(Fla.2014), we write to clarify the scope of the rational basis test used to review whether laws violate the substantive due process provision of Florida's Declaration of Rights.

FACTS

The Street Vendors challenge two provisions of the City of Hialeah's Code of Ordinances.The first challenged provision states, in pertinent part, that "[n]o peddler or itinerant vendor ^[1] soliciting or conducting sales on foot can permanently stop or remain at any one location on public property; or private property (unless allowed for by zoning)."Hialeah, Fla., Code§ 18–302(2013).The second challenged provision states, in pertinent part, that vendors "soliciting or conducting sales on foot may display, with the intent of soliciting sales, only as much of the goods, merchandise or wares as the ... vendor can carry on [his or her] person."Hialeah, Fla., Code§ 18–304(2013).

In whereas clauses, the City Commission made the following legislative fact findings:

[S]treet vending contemplates a transaction between the street vendor afoot and the driver or occupant of a motor vehicle while the vehicle is on the traveled portion of the roadway and is not legally parked.

....

[T]he street vendors presently store and display their merchandise openly in the public rights-of-way and on private property without regard to the intended use of the public rights-of-way, safety of the pedestrians using the public rights-of-way, or the general requirement in the City's zoning code in all commercial and industrial districts that all storage of products and materials be entirely within a building and the specific prohibition against the operation of open air markets, bazaars and flea markets in the City's retail commercial district;

[S]treet vendors in the conduct of their lawful business activity should enjoy co-terminous rights on private property as would the owners themselves to display or store merchandise.

Hialeah, Fla., Ordinance 13–01 (Jan. 9, 2013).

Silvio Membreno is a street vendor who sells flowers.His business model is to set up his display of flowers in a private parking lot near the corner of an intersection in Hialeah.Although he sells flowers to people who walk or drive into the parking lot, he mainly carries flowers out into the street and sells them to cars waiting in the lanes of traffic at red lights.He testified that the Ordinance provision prohibiting him from vending in one location impacts his business because his usual customers will not know where to find him.He asserts that it also endangers him because it is safer for him to enter the lanes of traffic where he knows the traffic patterns.In addition, the Ordinance provision that limits him to displaying only inventory that he can carry impacts his business because he loses sales when his customers cannot direct him to bring items from a larger display.As another vendor with a similar business model testified, a customer might see the flowers she was carrying, but ask her to go and get flowers of a different color from the larger display on the roadside.

The parties filed cross-motions for summary judgment.The trial court granted the City's motion and denied the Street Vendors' motion.The court entered a judgment stating, "[i]n accordance with the rational basis standard ... the Court finds that there are legitimate interests supporting the challenged Ordinance provisions and that the challenged Ordinance provisions are rationally related to such legitimate government interests."This appeal followed.

ANALYSIS

A.The Street Vendors' Arguments: Florida Supreme Court Abandoned the Traditional Rational Basis Test.

The Street Vendors attack these Ordinance provisions on a narrow basis.If successful, however, their arguments would herald a sea change in Florida constitutional law.They argue the Ordinance fails the rational basis test under the due process clause of article I, section 9 of the Florida Constitution.In doing so, they contend that the Florida Supreme Court has abandoned the traditional rational basis test.While Florida's rational basis test might once have been identical to the federal rational basis test, they argue that after McCall, Florida's rational basis test is different from the "watered-down, highly deferential version of the federal rational basis test."

"[T]he Florida rational basis test,"they maintain, "is more stringent than the federal rational basis test."The federal test is "loosey goosey" because it permits "courts[to] speculate about whether a law could be rationally related to its stated purpose."In contrast, the Florida test puts the burden squarely on the government.And that burden is to prove "there is a reasonable relationship between the restrictions and their purported purpose based on record evidence of their actual effects (or lack thereof) in advancing that purpose—not speculation about those effects."

In short, the Street Vendors claim McCall portended a revolution in Florida substantive due process.Unless the government succeeds in establishing an evidentiary predicate for a law, the Street Vendors maintain, judges are free to set aside legislative judgments regarding whether a law is needed and, if so, how best to address that need.Without expressly saying so, the Street Vendors read McCall as essentially reviving the discredited, substantive due process jurisprudence of Lochner v. New York,198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937(1905), and its progeny.

B.Overview of Opinion.

While some language in the plurality opinions in McCall can be read to support the Street Vendors' arguments, we conclude that the Florida Supreme Court has not abandoned Florida's traditional rational basis test.

Essentially the same as the federal rational basis test, the Florida rational basis test has played a central role in the separation of powers under the Florida Constitution for decades.The federal rational basis test, from which the Florida test is derived, was adopted to defuse a great constitutional crisis created by the same subjective substantive due process standard the Street Vendors claim the Florida Supreme Court is adopting.To avoid that sort of subjectivity, however, the Florida Supreme Court adopted a substantial body of law governing the rational basis test.This body of law focuses on five essential principles: (1)"reasonable" means "fairly debatable"; (2)the party challenging the constitutionality of a law bears the burden of proof; (3) legislative findings are not subject to courtroom fact finding and may be based on rational speculation unsupported by evidence or empirical data; (4)legislation can be based on nothing more than experiment; and (5)the Constitution does not prohibit the legislature from enacting unwise or unfair laws.The McCall decision, which is comprised of two distinct plurality opinions, does not contain the type of express and direct overruling of precedents that would mark the end of such a large, important, and long-standing body of black letter law.

C.The Florida Rational Basis Test is the Same as the Federal Test.

1.Statement of the Florida Rational Basis Test.

When a law regulating business or economic matters, which does not create a suspect class or infringe upon a fundamental right, is challenged as violating the substantive due process protected by Florida's Declaration of Rights, the law must be upheld if it bears a rational basis to a legitimate government purpose.

This authoritative statement of the rational basis test has been recognized by the Florida Supreme Court repeatedly.For example, in considering whether a statute"violates the due process clauses of the United States and Florida Constitutions,"the Court stated: "the proper standard by which we must evaluate the Legislature's exercise of the police power in the area of economic regulation is whether the means utilized bear a rational or reasonable relationship to a legitimate state objective."Belk–James, Inc. v. Nuzum,358 So.2d 174, 175(Fla.1978).

Similarly, in an opinion authored for the majority by Justice Lewis, the Florida Supreme Court expressly quoted and approved a decision in which a statute had been challenged as violating "the Due Process Clause of the Fourteenth Amendment of the Constitution of the United States and Article I, section 9 of the Florida Constitution" and upheld the statute because it "bears a rational relationship to [its] legislative objectives."McKnight v. State,769 So.2d 1039, 1039 n. 1(Fla.2000)(citation omitted).

Moreover, the rational basis test under Florida due process is the same as the rational basis test under Florida equal protection,² and in the context of equal protection, "there are two prongs to the rational basis test, requiring the Court to consider both whether the statute serves a legitimate governmental purpose and whether the Legislature was reasonable in its belief that the challenged classification would promote that purpose."McCall,134 So.3d at 918–19(Pariente, J., concurring in result).

2.Essential Similarity Between Florida and Federal Rational Basis Tests.

As these authorities indicate, the Street Vendors' statement that "the Florida rational basis test is more stringent than the federal rational...