Blitch v. City of Ocala

• Decision Date: 12 April 1940
• Citation: 195 So. 406,142 Fla. 612
• Parties: BLITCH v. CITY OF OCALA.
• Court: Florida Supreme Court

195 So. 406

142 Fla. 612

BLITCH v. CITY OF OCALA.

Florida Supreme Court

April 12, 1940

En Banc.

Suit by Sarah C. Blitch against the City of Ocala, Florida, municipal corporation, to enjoin enforcement of an ordinance. From a final order dismissing the bill of complaint, plaintiff appeals.

Reversed and remanded.

BUFORD and THOMAS, JJ., dissenting.

Appeal from Circuit Court, Marion County; J. C. B Koonce, Judge.

COUNSEL

H. M Hampton, of Ocala, for appellant.

W Robert Smith, of Ocala, for appellee.

OPINION

BROWN Justice.

Appellant filed her bill of complaint against the City of Ocala, Florida, alleging that she is and has been for many years a property holder in the city; that said property, consisting of three small cottages, is badly in need of repair, especially to the shingle roofs thereof, but that by reason of an ordinance passed by the City Council on October 21, 1924, enacted after the cottages were built, she is prevented from making such repairs; that she has applied to the city officials for leave to repair the said shingle roofs with new shingles, but such application was denied, and that the property has thus become worthless to her as a source of income; and praying an injunction against the enforcement of the ordinance.

The ordinance complained of, adopted in 1924, in the nature of a building code, establishes inner and an outer fire limits for the city; prescribes the type and kind of buildings that may be erected within each of such limits; provides what type of repairs shall be made; and requires permit to issue from the City Manager before any construction or repair work on any building may be done within said limits.

The buildings owned by appellant are within the outer fire limits, and are now covered with wooden shingles. Appellant has sought to recover the dwellings with the same materials, but the necessary permits have been refused.

To the bill of complaint the city interposed a motion to dismiss, which was granted. From the final order of dismissal, this appeal was taken.

The general authority of the city to enact such an ordinance is first questioned by appellant, it being her contention that the city did not have the authority to create fire limits or to provide for the different kinds of roofing to be used in the restricted areas.

Chapter 7676, Sp.Acts of 1917, the charter act of the City of Ocala, provided in the general welfare clause, inter alia, that the city 'may define, prohibit, abate, suppress and prevent all things detrimental to the health, morals and comfort, safety, convenience and welfare of the inhabitants of the city, and all unisances and causes thereof. May regulate the construction, height and material used in all buildings and structures, and the maintenance, use and occupation thereof, within the corporate limits. May require, provide for, and compel the removal of ruins of any building or structure caused by either fire, storm, decay, or the act of man; shall have the power to remove, or to provide for and compel the removal, of any building or structure which the City Council may deem to be unsafe, or in an unsafe or dangerous condition; * * *'.

This general grant of power is the only source from which the power to enact a valid, binding ordinance appertaining to fire limits may be obtained. There is, however, ample authority to sustain the holding that such a general grant of police power as that above quoted from the charter act includes the power to enact ordinances reasonably designed to protect the inhabitants and their property from fire. See McQuillin on Municipal Corporations, Vol. 3, page 2061, Sec. 948; Dillon on Municipal Corporations, 5th. Ed., Sec. 727. In support of the general principle involved, see State v. City of Miami, 101 Fla. 585, 134 So. 541.

Ordinances such as the one here under consideration are enacted under the general police power, and 'they must not (1) infringe the constitutional guarantees of the nation or state by (a) invading personal or property rights unnecessarily or unreasonably, (b) denying due process of law, or (c) equal protection of the laws, or (d) impairing the obligations of contracts; (2) must not be inconsistent with the general laws of the state, including the common law, equity and public policy, unless exceptions are permitted; (3) must not discriminate unreasonably, arbitrarily or oppressively, and (4) must not constitute a delegation of legislative or executive or administrative power.' McQuillin, Municipal Corporations, 2nd Ed., page 119. See, also, Hunter v. Green, Fla., 194 So. 379, filed this term.

We are next confronted with the question of whether or not the designation of the city manager under the conditions prescribed in the ordinance as the person to issue permits for buildings and repairs is an unlawful delegation of a portion of the city's legislative power.

In City of Monticello v. Bates, 169 Ky. 258, 183 S.W. 555, 558, it is aptly said of municipal ordinances:

'The rule is well established that municipal ordinances, placing restrictions upon lawful conduct or the lawful use of property, must, in order to be valid, specify the rules and conditions to be observed in such conduct or business; and must admit of the exercise of the privilege of all citizens alike who will comply with such rules and conditions; and must not admit of the exercise, or of an opportunity for the exercise, of any arbitrary discrimination by the municipal authorities between citizens who will so comply. City of Richmond v. Dudley, 129 Ind. 112, 28 N.E. 312, 13 L.R.A. [587], 589, 28 Am.St.Rep. 180.'

Section 2(2) of the ordinance provides:

'That no wall, structure, building or part thereof shall hereafter be built, enlarged or altered until a plan of the proposed work, together with a statement of the materials to be used, shall have been submitted to the City Manager, who shall, if in accordance with the provisions herein contained, issue a permit for the proposed construction.'

The pertinent portions of Section 31 of the ordinance read as follows:

'Section 31. Roof Covering. (1) That all buildings except as given below shall have roof coverings of approved standard quality, such as brick, concrete, tile, or slate; or highest grade of tin roofing; or asbestos shingles; of all built up roofing felt with gravel or slag surface; or built up asbestos roofing, or other roofing of light grades which would rank as Class 'A' Class 'B' under the test specifications of National Board of Fire Underwriters.

'Exceptions:

'(A) Dwellings.

'(B) Frame Buildings

'(C) Buildings not exceeding two stories or 30 feet in height and 2,500 square feet in area, and not used for factories, warehouses, or mercantile purposes.

'(2) The quality of roofing for all dwellings and other buildings exempted in paragraph (1), shall be as therein specified; or may be of a grade not lower than that indicated in the definition of approved fire-resistive roofing, as follows:

'The roofing shall at least withstand the attack of burning fire brands for five minutes with a wind pressure of five miles per hour, without ignition of the clear dry white pine decking beneath it, and shall not crack and expose the decking; * * * or of a grade which would rank not lower than Class 'C' under the test specifications of the National Board of Fire Underwriters.

* * *

'(6) If a wood shingle roof is to be repaired more than ten per cent in any one year, the same shall be entirely replaced with materials specified in paragraph (1) of this section.

'(7) The Building Inspector shall have power to condemn and have removed any wood shingles roof that in his opinion is in such deteriorated condition as to be excessively inflammable.

'(8) Within twelve (12) years from the date of the approval of this ordinance any and all roofs covered with wood shingles shall be replaced with roof coverings which comply with this section.'

It appears to be conceded in the briefs that the effect of this ordinance would be to prohibit the appellant from reroofing her buildings with wooden shingles, as appellant applied for permission to do. It also appears that paragraph 6 of Section 31 is applicable whether the building be located within or without the fire limits.

In the case at bar, the particular 'test specifications of the National Board of Fire Underwriters', are not set out in the ordinance, but 'that may be considered as certain which may be made certain.' So the ordinance must be construed to apply only to the 'test specifications' of said National Board which were then in effect, and not to subsequent changes in such specifications. So construed, the meaning of the ordinance could be made certain, and its validity upheld. If it should be held to mean, not only present, but also future specifications, or any changes therein that might be adopted by the National Board of Fire Underwriters, section 31 of the ordinance would be invalid as being a delegation of authority to an outside board to alter a municipal ordinance. Under such ambulatory construction one property owner may have, in 1925, for example, roofed his home with a material 'of a grade which would rank not lower than Class 'C' according to the tests in force when the ordinance was adopted, whereas in 1930, the adjacent property owner might have made an attempt to roof his home with the same material, only to find that, by reason of changes made in the specifications by said National Board, the material was no longer in Class, 'C', and...