City of Winter Park v. Montesi
| Decision Date | 26 April 1984 |
| Docket Number | No. 83-222,83-222 |
| Citation | 448 So.2d 1242 |
| Parties | CITY OF WINTER PARK, a municipal corporation, Appellant, v. Louis J. MONTESI, Appellee. |
| Court | Florida District Court of Appeals |
Steven D. Hutton of Winderweedle, Haines, Ward & Woodman, P.A., Winter Park, for appellant.
David C. Lanigan of Pino, Knox & Smith, Orlando, for appellee.
The City of Winter Park appeals from an order permanently enjoining it from selling sinkhole photographs. The trial court found that the city, in selling such photographs, was engaged in a proprietary function which served no legitimate municipal or public purpose. It also found that the city did not apply to itself, as a municipal corporation, the regulations that are by law applicable to the business activities engaged in by Montesi, a private entrepreneur who also sold sinkhole photographs.
The facts of this case are "bottomed" on a large sinkhole which developed in Winter Park on May 9, 1981, and instantly became an attraction for local residents and tourists. Montesi began selling photographs of the sinkhole from a store located on Fairbanks Avenue which was within one hundred yards of the sinkhole. In mid-June, 1981, the city rejected Montesi's request to conduct retail sales from a table on private property nearer the sinkhole. The city rejected the request because the property was zoned partly for office use only (which classification prohibits retail sales) and partly for commercial use (which permits retail sales only from an enclosed building). Following this rejection, the city constructed a screened enclosure on private property, adjacent to the property Montesi sought to use. On July 9th, the city began selling sinkhole photographs from the enclosure. Four days later, the enclosure was moved to a nearby public park. Sales continued until entry of a temporary injunction against the city on August 20, 1981.
The city argues that the trial court erred in finding that it was not performing an activity within the powers of a municipal corporation in this state.
Article VIII, section 2(b) of the Florida Constitution, provides that:
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 broad nature of this grant of power was recognized by the Florida Supreme Court in State v. City of Sunrise, 354 So.2d 1206, 1209 (Fla.1978), when the court noted that:
Article VIII, Section 2, Florida Constitution, expressly grants to every municipality in this state authority to conduct municipal government, perform municipal functions, and render municipal services. The only limitation on that power is that it must be exercised for a valid 'municipal purpose.' It would follow that municipalities are not dependent upon the Legislature for further authorization. Legislative statutes are relevant only to determine limitations of authority.
See also City of Boca Raton v. Gidman, 440 So.2d 1277, 1280 (Fla.1983).
Chapter 166, Florida Statutes (1981), known as the "Municipal Home Rule Powers Act" re-emphasizes the broad grant of power given to municipalities in section 166.021:
(1) As provided in article VIII, section 2(b) 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.
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(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....
As stated in Gidman, whenever a municipality exercises its powers, a two-tiered question is presented. First, was the action taken for a municipal purpose? If so, was that action expressly prohibited by the constitution, general or special law, or county charter? 440 So.2d at 1280. Here, there was no finding below, nor have we been able to discover, any constitutional provision or enactment which prohibits a city from selling souvenir photographs such as the ones in this case. Thus, the only question is whether such sales constitute a municipal purpose.
Section 166.021(2), defines "municipal purpose" as "any activity or power which may be exercised by the state or its political subdivision." In determining whether an activity is a valid "municipal purpose", review of case law regarding what constitutes a "municipal purpose" is necessary.
Recently, in Gidman, the supreme court held that provision for day care educational facilities is a valid municipal purpose. The court noted that the term "municipal purpose" has been broadly interpreted and has included such activities as maintenance and operation of a radio broadcasting system by a city. See State v. City of Jacksonville, 50 So.2d 532 (Fla.1951). In City of Jacksonville, the court stated:
Though there was a time when a municipal purpose was restricted to police protection or such enterprises as were strictly governmental that concept has been very much expanded and a municipal purpose may now comprehend all activities essential to the health, morals, protection and welfare of the municipality.
Other cases have upheld a city's power to construct and operate a parking garage, Gate City Garage v. City of Jacksonville, 66 So.2d 653 (Fla.1953), build and operate a marina and civic auditorium, Panama City v. State, 93 So.2d 608 (Fla.1957), acquire and maintain a golf course, West v. Town of Lake Placid, 97 Fla. 127, 120 So. 361 (1929), provide fishing facilities in a public park and gain revenue by leasing a portion of the park to a business firm for construction and operation of a fishing pier, Sunny Isles Fishing Pier v. Dade County, 79 So.2d 667 (Fla.1955) and own and operate an auditorium, including booking attractions for the auditorium. Starlight Corp. v. City of Miami Beach, 57 So.2d 6 (Fla.1952). See...
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