City of Miami Beach v. Rocio Corp.

• Court: Florida District Court of Appeals
• Writing for the Court: PER CURIAM
• Citation: City of Miami Beach v. Rocio Corp., 404 So.2d 1066 (Fla. App. 1981)
• Decision Date: 07 April 1981
• Docket Number: No. 80-626,80-626
• Parties: CITY OF MIAMI BEACH, Appellant, v. ROCIO CORP., a Florida Corporation, and Rida Corp., a Florida Corp., andCarriage House Associates, a California General Partnership, consisting ofHarvey Rosen, David Rosen, Lawrence Kates and Arthur Burdorf, Appellees.

Page 1066

404 So.2d 1066

CITY OF MIAMI BEACH, Appellant, v. ROCIO CORP., a Florida Corporation, and Rida Corp., a Florida Corp., andCarriage House Associates, a California General Partnership, consisting ofHarvey Rosen, David Rosen, Lawrence Kates and Arthur Burdorf, Appellees.

No. 80-626.

District Court of Appeal of Florida, Third District.

April 7, 1981.

John A. Ritter, City Atty., and Thomas M. Pflaum and Karen Alterman, Asst. City Attys., for appellant.

Lincoln Diaz-Balarat, Miami Shores, Legal Services of Greater Miami, Inc., for the City of Miami Beach as amicus curiae.

Nancy A. Cousins, City Atty., and Leonard Lubart, Asst. City Atty., for the City of Hollywood as amicus curiae.

Young, Stern & Tannenbaum and Norman Malinski, N. Miami Beach, for appellees.

Before HENDRY and BASKIN, JJ., and VANN, HAROLD R. (Ret.), Associate Judge.

PER CURIAM.

Cognizant of hardships endured by Miami Beach apartment residents when landlords repeatedly converted rental units into condominiums without regard to the growing apartment shortage, the City of Miami Beach enacted emergency ordinances designed to forestall the crisis ¹ it perceived as inevitable if landlords were permitted to convert their remaining apartments. The ordinances delayed conversions by extending leases and by creating a ninety-day moratorium on conversions. In this appeal by the City ² from a trial court order enjoining the City from enforcing the ordinances, we address the preliminary issues ³ considered by the trial court upon stipulation of the parties: first, whether the subject of condominium conversion was preempted by the Florida Condominium Act, chapter 718, Florida Statutes (1979); and second, whether the ordinances conflict with the Florida Condominium Act. Either preemption of the subject by the state or conflict with state law would invalidate the ordinances. The trial court found that both preemption and conflict existed. Upon consideration of both issues, we hold that the state did not expressly preempt the subject of condominium conversion; we hold, however, that the City was properly enjoined from enforcing the ordinances because they conflict with state law. We affirm on that ground.

Ordinance No. 79-2169 provides that a developer may convert a rental unit into a condominium provided that each tenant shall have the right to extend an expiring lease for a period up to eighteen months. In the ordinance, the city commission declares that leases allowing landlords or developers at their option to terminate leases upon less than eighteen months notice to the tenant are against public policy. Ordinance No. 80-2197 prohibits an owner of multi-family housing units from converting rental housing to condominium units for a period of ninety days from the date of the ordinance. Ordinance No. 80-2201 corrects scrivener errors in Ordinance No. 80-2197. ⁴

First, the City of Miami Beach contends that the legislature did not expressly preempt the subject of condominium conversion and that absent express preemption to the state, the City is free to enact ordinances restricting condominium conversion under the authority it derives from the Municipal Home Rule Powers Act, chapter 166, Florida Statutes (1979).

Next, the City argues that the ordinances in question are not in conflict with state law, but instead impose restrictions on activity already regulated by the state. It contends, therefore, that the ordinances supplement rather than conflict with state restrictions and are permissible municipal enactments. On this point we disagree.

1. Preemption.

Municipalities derive their powers from the Florida Constitution. Article VIII, Section 2(b), Florida Constitution (1968) provides:

Powers. Municipalities shall have governmental, corporate and proprietary powers to enable them to conduct municipal government, perform municipal functions and render municipal services, and may exercise any power for municipal purposes except as otherwise provided by law.

The extent of municipal power or home rule has been questioned in the courts. In City of Miami Beach v. Fleetwood Hotel, Inc., 261 So.2d 801 (Fla.1972), the supreme court held that the constitutionally provided powers were insufficient to permit a municipality to enact a rent control ordinance absent enabling legislation. In apparent response to City of Miami Beach v. Fleetwood Hotel, Inc., supra, the Florida Legislature, in 1973, clarified the scope of municipal home rule and expressed a legislative purpose to remove limitations on the exercise of home rule powers by enacting the Municipal Home Rule Powers Act, ch. 73-129, Laws of Fla. (codified at ch. 166, Fla.Stat. (1973)). It acknowledged that municipalities may enact legislation on any subject upon which the state legislature may act unless expressly prohibited by law.

166.021 Powers.

(1) As provided in s. 2(b), Art. VIII of the State Constitution, municipalities shall have the governmental, corporate, and proprietary powers to enable them to conduct municipal government, perform municipal functions, and render municipal services, and may exercise any power for municipal purposes, except when expressly prohibited by law.

(2) "Municipal purpose" means any activity or power which may be exercised by the state or its political subdivisions.

The legislature recognized certain exceptions:

(3) The Legislature recognizes that pursuant to the grant of power set forth in s. 2(b), Art. VIII of the State Constitution, the legislative body of each municipality has the power to enact legislation concerning any subject matter upon which the state Legislature may act, except:

(a) The subjects of annexation, merger, and exercise of extraterritorial power, which require general or special law pursuant to s. 2(c), Art. VIII of the State Constitution;

(b) Any subject expressly prohibited by the Constitution;

(c) Any subject expressly preempted to state or county government by the Constitution or by general law; and

(d) Any subject preempted to a county pursuant to a county charter adopted under the authority of ss. 1(g), 3, and 6(e), Art. VIII of the State Constitution.

(4) The provisions of this section shall be so construed as to secure for municipalities the broad exercise of home rule powers granted by the Constitution. It is the further intent of the Legislature to extend to municipalities the exercise of powers for municipal governmental, corporate, or proprietary purposes not expressly prohibited by the Constitution, general or special law, or county charter and to remove any limitations, judicially imposed or otherwise, on the exercise of home rule powers other than those so expressly prohibited.

§ 166.021, Fla.Stat. (1979).

The City of Miami Beach then enacted another rent control ordinance under the expanded authority afforded by section 166.021(1). In an action challenging the new ordinance, the supreme court in City of Miami Beach v. Forte Towers, Inc., 305 So.2d 764 (Fla.1974), ruled that municipalities now possessed the power to enact such ordinances except when expressly prohibited by law, stating:

Ch. 73-129 is a broad grant of power to municipalities in recognition and implementation of the provisions of Art. VIII, § 2(b), Fla.Const. ¹ It should be so construed as to effectuate that purpose where possible. 2 It provides, in new F.S. § 166.021(1), that municipalities shall have the governmental, corporate and proprietary powers to enable them to conduct municipal government, perform municipal functions and render municipal services; it further enables them to exercise any power for municipal services, except when expressly prohibited by law.

305 So.2d at 766 (footnotes omitted); see Juergensmeyer and Gragg, Limiting Population Growth in Florida and the Nation: The Constitutional Issues, 26 U.Fla.L.Rev. 758, 764 (1974).

In light of these developments, we must decide whether condominium conversion is a subject "expressly preempted to state ... government" and therefore excepted from the City's powers under section 166.021(3)(c). See also City of Temple Terrace v. Hillsborough Association for Retarded Citizens, Inc., 322 So.2d 571 (Fla. 2d DCA 1975), aff'd, 332 So.2d 610 (Fla.1976); City of Miami Beach v. Forte Towers, Inc., supra. The Florida legislature has spoken on the subject of condominium conversion in Chapter 718, Florida Statutes (1979), which defines as its purpose:

(1) To give statutory recognition to the condominium form of ownership of real property.

(2) To establish procedures for the creation, sale, and operation of condominiums.

Every condominium created and existing in this state shall be subject to the provisions of this chapter.

§ 718.102(1), (2), Fla.Stat. (1979). Nowhere, either in its statements of purpose or other provisions, does chapter 718 expressly preempt ⁵ the subject to the state. ⁶

Appellees argue that section 718.507, which prohibits laws concerning use, location, placement and construction of buildings, subject to the condominium form of ownership, preempts the subject. We disagree. The language of that section when read as a whole, Florida Jai Alai, Inc. V. Lake Howell Water & Reclamation District, 274 So.2d 522 (Fla.1973), is clearly not a statement of preemption, but is instead a prohibition against condominium discrimination. The plain language of a statute must be read to mean what it says. Carson v. Miller, 370 So.2d 10 (Fla.1979); Phil's Yellow Taxi Co. v. Carter, 134 So.2d 230 (Fla.1961).

We conclude that the legislature has expressed its purpose to afford municipalities home rule with the exception of preempted subjects. We find no preemption of the subject of condominium conversion. The City is therefore permitted to exercise its power on that subject unless otherwise precluded.

2. Conflict.

One impediment to constitutionally derived legislative powers of municipalities occurs when the municipality enacts ordinances which conflict with state law. City of Miami Beach v....