Eskind v. City of Vero Beach, 32712
| Decision Date | 18 December 1963 |
| Docket Number | No. 32712,32712 |
| Citation | 159 So.2d 209 |
| Parties | Milton ESKIND and Evelyn T. Eskind, his wife, and J. Alphonse Choquette and Helen Vermette Choquette, his wife, Petitioners, v. CITY OF VERO BEACH, a municipal corporation organized and existing under the laws of the State of Florida, Respondent. |
| Court | Florida Supreme Court |
Gould, Cooksey & Fennell and Robert Jackson, Vero Beach, for petitioners.
James T. Vocelle, Vero Beach, G. Warren Sanchez, Tallahassee, and Fred T. Gallagher, Vero Beach, for respondent.
By petition for certiorari we are requested to review a decision of the District Court of Appeal, Second District, because of an alleged conflict with a decision of the District Court of Appeal, First District.
We must pass on the validity of a municipal ordinance prohibiting the display of outdoor rate signs by operators of lodging accommodations.
The City of Vero Beach adopted an ordinance which prohibited the use of outdoor signs to advertise rates for tourist accommodations. Petitioners Eskind, who are motel owners, sued for injunctive relief against enforcement of the ordinance. The trial judge held the ordinance to be a valid exercise of the police power. The District Court of Appeal, Second District, affirmed this ruling. Eskind v. City of Vero Beach, Fla.App., 150 So.2d 254. The petitioners contend that this decision is in direct conflict with a decision of the District Court of Appeal, First District, in Abdo v. City of Daytona Beach, Fla.App., 147 So.2d 598, cert. den. March 5, 1963. Examination of the two opinions will reveal that the ordinances of the two cities are practically identical. In effect, they prohibit the use of outdoor signs to advertise rates for accommodations in motels, hotels, tourist homes and other types of lodging houses. In Abdo the District Court of Appeal, First District, held the Daytona Beach ordinance invalid. In Eskind the District Court of Appeal, Second District, held the Vero Beach ordinance to be a valid exercise of the police power. Both courts considered the ordinances from the aspect of preserving the aesthetic qualities of the communities involved. Both courts considered the ordinances from the aspect of the economic importance of the tourist industry and the potential adverse economic impact of price competition in the business of supplying tourist accommodations. Admittedly, both cities enjoy substantial economic benefits from tourism. Both cities are attractive tourist areas. The two District Courts arrived at diametrically opposite views on the validity of almost identical municipal ordinances. The factual background of the two decisions is likewise substantially the same. We are, therefore, confronted by the decisions of two District Courts which have arrived at different conclusions in two situations not materially distinguishable. The two decisions, therefore, produce a real embarrassing conflict in the law which the Constitution contemplates must be resolved by this Court. Article V, Section 4(2), Florida Constitution, F.S.A.; Ansin v. Thurston, Fla., 101 So.2d 808; Nielsen v. City of Sarasota, Fla., 117 So.2d 731.
Finding, as we do, the presence of a jurisdictional conflict patently apparent from the two decisions, we shall proceed to consider the merits of the instant case and decide the points passed upon by the District Court. Tyus v. Apalachicola Northern Railroad Co., Fla., 130 So.2d 580; Pinkerton-Hays Lumber Co. v. Pope, Fla., 127 So.2d 441.
We have recognized the importance of aesthetics in the planning and maintenance of various Florida communities. Dade County v. Gould, Fla., 99 So.2d 236. Customarily, community attractiveness is accomplished by general zoning plans and related regulations which do not segregate selected businesses or activities for confiscatory, discriminatory treatment. A regulation of the type here involved is an exercise of the police power. It must have its foundation in reason and general community welfare. It must not impose discriminatory restrictions on the activities of a carefully selected business while permitting others similarly conditioned to engage in the prohibited activity.
Regulation of signs and outdoor advertising when reasonably applied, is a valid exercise of the police power. However, such regulation must be non-discriminatory and it must have a solid foundation in some reasonable relationship to the general welfare. Sunad, Inc. v. City of Sarasota, Fla., 122 So.2d 611.
In the instant case, we can find no justification from an aesthetic viewpoint to prohibit motel signs advertising rates but permitting every other type of motel advertising sign imaginable. The motel which can offer an attractive rate is prohibited from announcing its rate advantage while more luxurious establishments are permitted to appeal by advertising signs announcing television, air conditioning, swimming pools, bars and grills and every other conceivable item of tourist attraction. Similarly, all motels are prohibited from advertising rates by signs while every other business in the vicinity is left free to appeal to the passing motorist with signs announcing charges for its goods or services. The motel cannot display its charges on signs, while restaurants, bars, filling stations, and every other type of business catering to travelers are permitted to do so. It seems obvious to us that a rate sign in front of a motel is no more offensive to the aesthetic sensibilities of the traveler or the community than would be a rate sign in the same immediate area advertising the charges of the other business activities. Similarly, a sign advertising rates is not aesthetically distinguishable from a sign advertising various aspects of a motel's services or conveniences. On this score, we have the view that the decision of the District Court of Appeal, First District, in Abdo was correct. Necessarily, therefore, we hold that the decision of the District Court of Appeal, Second District, to the extent that it sustained the subject ordinance on aesthetic grounds, was in error.
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