City of Coral Gables v. Carmichael

• Decision Date: 13 January 1972
• Docket Number: No. 71--761,71--761
• Citation: 256 So.2d 404
• Parties: CITY OF CORAL GABLES, Florida, a municipal corporation, and Rebyl Zain, as City Commissioner of the City of Coral Gables, Appellants, v. Guy G. CARMICHAEL, Jr., Appellees.
• Court: Florida District Court of Appeals

Page 404

256 So.2d 404

CITY OF CORAL GABLES, Florida, a municipal corporation, and Rebyl Zain, as City Commissioner of the City of Coral Gables, Appellants, v. Guy G. CARMICHAEL, Jr., Appellees.

No. 71--761.

District Court of Appeal of Florida, Third District.

Jan. 13, 1972.

Charles H. Spooner, City Atty., and Robert D. Zahner, Asst. City Atty., Adams, George & Wood, Frates, Floyd, Pearson & Stewart and Alan G. Greer and Bertha Claire Lee, Miami, for appellants.

George N. Jahn, Miami, Frank W. Guilford, Jr., Coral Gables, Sibley, Giblin, Leverson

& Ward, Miami Beach, for appellees.

Before CHARLES CARROLL and HENDRY, JJ., and LESTER, M. IGNATIUS, Associate Judge.

CARROLL, Judge.

This is an appeal filed by the City of Coral Gables, a defendant below, from a final judgment of the circuit court of Dade County enjoining a referendum.

On March 23, 1971, the City Commission of the City of Coral Gables enacted an ordinance which amended the city's comprehensive zoning ordinance by changing the zoning from single family residence use to multi-family and other more liberal uses on a certain tract of land known as the Cocoplum Beach property. ¹

Thereafter there was invoked the referendum procedure provided for in the charter, to submit the ordinance to a vote of the electors for its approval or rejection. A referendum petition was prepared and timely filed with the city clerk. Thereafter, on April 28, 1971, which was the eighth day of the ten day period within which the city clerk was required to determine and certify as to the sufficiency or insufficiency of the petition, the appellees filed this action in the circuit court and on said date obtained a restraining order, without notice, enjoining the city clerk from performance of her duties in that respect, and on final hearing obtained a permanent injunction blocking the referendum. This appeal by the defendant City of Coral Gables followed, with a joinder in appeal filed by one of the City Commissioners.

Section 21 of the charter of the City of Coral Gables provides:

'The electors shall have the power to approve or reject at the polls any ordinance passed by the Commission or submitted by the Commission to a vote of the electors, except an appropriation ordinance or an ordinance making the annual tax levy, such power being known as the referendum'.

The above provision of section 21 of the charter is followed by a number of subsections dealing with the requirements and procedures for the referendum. Subsection (a) thereof specifies a thirty day delay for effectiveness of such a measure (other than an emergency measure). Subsection (b) provides for the filing of a petition for referendum with the city clerk within thirty days after the final passage of an ordinance, and that the petition shall be 'signed by the electors of the City equal to a number of at least twenty percent of the total number of registered voters as shown by the City registration books at the last preceding regular municipal election', and that the petition shall specify the ordinance or the part thereof, the repeal of which is sought, but need not contain the text thereof.

Subsection (c) provides that if the petition is found sufficient by the city clerk the latter shall certify that fact to the City Commission at its next regular meeting, and that thereupon the ordinance shall not go into effect until approved by the electors. Further, that upon receipt of a certificate from the city clerk certifying to the sufficiency of the petition the Commission shall consider the ordinance and vote on whether it shall be repealed, and that if the ordinance is not then repealed it shall be submitted to the electors at an election to be held more than thirty days thereafter (or sooner if so provided for by a four-fifths vote of the Commission). It is further provided there that if the ordinance when submitted to the electors is not approved by a majority of those voting thereon, it shall be deemed repealed.

By a further subsection of section 21 of the charter, provision is made for notice of the election to be published fifteen days prior to the election, in a newspaper of general circulation in the city, with the full text of the ordinance set out in such published notice. Subsection (i) deals with requirements as to the signatures on the petition, which may be in separate parts, and the form of affidavit to be appended thereto by the person or persons circulating the same.

Subsection (j) provides that the papers making up the petition shall be assembled and filed with the city clerk, and that within ten days after the petition is so filed 'the City Clerk shall determine whether each paper of the petition is properly attested and whether the petition is signed by a sufficient number of electors.' Further in subsection (j) the city clerk is directed to declare invalid any petition paper which is not attested by the circulator as required or upon which the affidavit of the circulator can be shown to be false, and that upon completion of the examination of the petition by the city clerk that official 'shall attach thereto a certificate showing the result of the examination.'

As stated above, after the referendum petition was filed, but before the clerk had made a decision and certificate as to the sufficiency of the petition and during the ten day period allowed therefor, the city clerk was enjoined 'from certifying the sufficiency of the referendum petition' until further order of the court. Motions filed by the defendants to dissolve the restraining order and to dismiss the complaint were denied on May 19 by an order in which the cause was set for final hearing on June 4, 1971. Answers were then filed.

The matters alleged in the complaint as constituting grounds for court intervention to prevent the referendum were: (1) that the referendum procedure provided for in the charter could not be invoked with reference to the ordinance, because the zoning code made provision whereby a party aggrieved by the action of the City Commission upon a zoning matter could seek review thereof in the circuit court by petition for certiorari; (2) that because the city, as authorized by § 98.091 Fla.Stat., F.S.A., has adopted for its use the permanent voter registration system of Dade County for registration of electors for future special and general elections, it would not be possible for the city clerk to certify sufficiency of a referendum petition, since the electors of the city are no longer listed in registration books maintained by the city, but are listed on the county registration books; (3) that a referendum as provided for in the charter would constitute a violation of due process of law and a denial of equal protection of the laws; (4) that some of the persons whose names appear on the petition may not be qualified electors of the city; (5) that because the supervisor of registration of Dade County is an appointed official, and not Elected and therefore not in position to take the oath required of an elected officer, he is not qualified to determine and certify to the city clerk, at her request or direction, the number of signers of the petition who were registered voters of the city at its last regular election, and the percentage thereof to the total of such registered electors; and (6) that the petition and the various papers comprising it may not be considered to have been timely filed with the city clerk because the clerk did not write or stamp thereon the date of the filing thereof.

By their responsive pleadings the defendants opposed those contentions as constituting ground for enjoining the referendum. Following final hearing the circuit court entered judgment permanently enjoining the charter directed progress of the initiated referendum relating to the said ordinance of March 23, 1971. Other than to recite that 'the equities of this cause are found to be with the plaintiffs', no reason or ground for enjoining the referendum was stated in the judgment.

On this appeal therefrom, the appellants contend that no ground or basis in law was shown for the judgment. Appellants point out that the right to such referendum is provided for duly by the charter; that the ordinance involved is legislative in character and is an appropriate subject for referendum under the charter; and argue that the appellees' contention of denial of due process or of equal protection of the laws is without merit, citing James v. Valtierra, 402 U.S. 137, 91 S.Ct. 1331, 28 L.Ed.2d 678; Ranjel v. City of Lansing, 6 Cir.1969, 417 F.2d 321; Dwyer v. City Council of Berkeley, 200 Cal. 505, 253 P. 932. Appellants argue further there was no showing that the procedural requirements of section 21 of the charter relating to the referendum petition had not been or were not being substantially complied with, and that the preliminary and final injunctions were improperly granted in that the city clerk was in the process of performing the duties imposed upon her by the charter to determine the sufficiency of the petition and to make report thereon to the City Commission.

The appellees contended the judgment enjoining the referendum was proper, based on the grounds listed above as contained in the complaint, and in addition thereto argue that the ordinance was not legislative but was quasi judicial action, and therefore not subject to referendum.

Upon consideration of the cause in the light of the record, briefs and arguments we are impelled to conclude the granting of the injunction was error, and that the judgment should be reversed.

The action of the City Commission in enacting the ordinance of March 23, 1971, amending its comprehensive zoning ordinance or zoning code, changing the zoning on the property in question, was legislative in character and was subject to referendum as expressly provided for in section 21 of the city charter. Schauer v. City of Miami Beach, Fla.1959, 112 So.2d 838, discharging certiorari to City of...