City of Fort Lauderdale v. Canary Enterprises, Inc.

• Decision Date: 07 July 1989
• Docket Number: No. 89-0963,89-0963
• Citation: City of Fort Lauderdale v. Canary Enterprises, Inc., 546 So.2d 1114, 14 Fla. L. Weekly 1617 (Fla. App. 1989)
• Parties: 14 Fla. L. Weekly 1617 CITY OF FORT LAUDERDALE, a Municipal Corporation and Political Subdivision of the State of Florida, Appellant, v. CANARY ENTERPRISES, INC., d/b/a Rohr Balloons and Contempo-Airy Promotions, Inc., Appellees.
• Court: Florida District Court of Appeals

Page 1114

546 So.2d 1114

14 Fla. L. Weekly 1617

CITY OF FORT LAUDERDALE, a Municipal Corporation and Political Subdivision of the State of Florida, Appellant, v.CANARY ENTERPRISES, INC., d/b/a Rohr Balloons and Contempo-Airy Promotions, Inc., Appellees.

No. 89-0963.

District Court of Appeal of Florida Fourth District.

July 7, 1989.

Dennis E. Lyles, City Atty., and Lindsey A. Payne, Asst. City Atty., Fort Lauderdale, for appellant.

Anthony J. Titone of Titone, Roarke & Titone, Lauderhill, for appellees.

FASTRACK APPEAL

GUNTHER, Judge.

We reverse the order granting a temporary injunction which enjoins the city from enforcing the special promotions and grand opening provisions of the City Code sections 47-50.9(n)(1) and (2).In our view, the trial court erred in finding that "balloons" were not encompassed by the term "sign" in the applicable ordinance sections.

City Code sections 47-50.9(n)(1) and (2) provide:

(n) Special promotions.

(1) Upon payment of proper permit fees, special promotions may be conducted for a period of thirty (30) days.Special promotions signs will be permitted in show windows and, for service stations, one (1) eighteen (18) inch by twenty-four (24) inch sign may be affixed to the top of each pump.Special promotions displays shall be limited to one per location per calendar year.(Hereinafter, "Special Promotions Provision").

(2) Upon payment of proper permit fees, promotions of the "grand opening" type will be permitted at any place of a newly licensed business for a thirty-day period.Signs for such promotion may be securely anchored and may not exceed an aggregate total of five hundred (500) square feet.No whirligigs, streamers or sandwich signs will be permitted.(Hereinafter, "Grand Opening Provision").

Fort Lauderdale, Fla., Code, § 47.50.9(n)(1) and (2).Section 47-50.1(1), which is also relevant to the issue in dispute, provides:

All signs in the City of Fort Lauderdale shall be limited to point of purchase sign, business identification sign, and directional sign.No other kind of advertising sign of any type shall be permitted, except as otherwise provided herein.Any sign authorized by Section 47-50, Signs, shall be allowed to contain noncommercial copy in lieu of commercial or other copy.

Fort Lauderdale, Fla., Code§ 47-50.1(1).Finally, section 47-40.2(20), defines a "sign" as:

any display of characters, ornamentation, letters, or other display such as, but not limited to, a symbol, logo, picture, or other device used to attract attention, or to identify, or as an advertisement, announcement, or to indicate directions, including the structure or frame used in their display.

Fort Lauderdale, Fla., Code§ 47-40.2(20).

In their complaint for declarative and injunctive relief, appellees alleged that the sign code of the city as it pertains to balloons is unconstitutional, has no standard for balloons, and is subject to varying interpretations.Appellees sought a temporary injunction to enjoin the city from enforcing the special promotions and grand opening provisions of the code.The trial court granted the temporary injunction upon finding that "balloons" were not encompassed by the term "sign" as used in the code.

In Playpen South, Inc. v. City of Oakland Park, 396 So.2d 830(Fla. 4th DCA1981), this court enunciated the four prerequisites necessary for the granting of a temporary injunction.According to Playpen South, the moving party must prove that "(1)he will suffer irreparable harm unless the status quo is maintained, (2)he has no adequate remedy at law, (3)he has a clear legal right to the relief requested, (4) a temporary injunction will serve the public interest."Id. at 830, 831.Both parties agree that the four Playpen South criteria are dispositive in resolving the instant issue.

In our view, appellees were not entitled to the issuance of a temporary injunction because they failed to prove that they had a clear legal right to the relief requested.Appellees failed to demonstrate a substantial likelihood of success on the merits.Playpen South, 396 So.2d 830(Fla. 4th DCA1981).

At issue in determining the reasonable certainty of success is the interpretation to be given the city's sign ordinance.The Supreme Court of Florida in City of Miami v. Kayfetz, 92 So.2d 798(Fla.1957), outlined the standard of review for city ordinances.In Kayfetz, the court wrote:

In construing the validity of the ordinance in question we must: (1) assume that a valid ordinance was intended ... (2) construe the ordinance to be legal, if possible to do so, and strive to so construe it as to give reasonable effect to its provisions....Further, the courts should be very cautious in declaring a municipal ordinance unreasonable, there being a peculiar propriety in permitting the inhabitants of a City through its proper officials to determine what rules are necessary for their own local government.(citations omitted)

Id. at 801.The court continued that there is a presumption of the ordinance's reasonableness "unless its unreasonable character appears on its face."Id.The court ruled that "wide latitude" should be given to the enacting legislative body, as long as "it does not appear that there has been, in action taken, an abuse of authority or a violation of organic or fundamental rights."Id.Thus, Kayfetz dictates that courts should show extreme deference to the enacting body, limited only by the presence of facial unreasonableness or abuses of authority and fundamental rights.

We agree with the city's assertion that a balloon which carries commercial or political advertisements is a sign under the definition set forth in section 47-40.2(20).Furthermore, as the city points out, the sign ordinance also provides All signs in the City of Fort Lauderdale shall be limited to point of purchase sign, business identification sign, and directional sign.No other kind of advertising...