Ex Parte Wise

• Decision Date: 02 January 1940
• Citation: 141 Fla. 222,192 So. 872
• Parties: Ex parte WISE.
• Court: Florida Supreme Court

192 So. 872

141 Fla. 222

Ex parte WISE.

Florida Supreme Court

January 2, 1940

En Banc.

Original proceeding in habeas corpus by F. L. Wise.

Petitioner discharged.

COUNSEL Frank Redd, of Sarasota, for petitioner.

Williams & Dart, of Sarasota, for respondents.

OPINION

PER CURIAM.

This is a case of original jurisdiction. On the 14th day of February 1938, the petitioner, F. L. Wise, was convicted in the Municipal Court of the City of Sarasota, Florida, on two separate warrants charging him with the violation of a zoning ordinance of said city on the 8th and 9th of February, 1938. He was by the Municipal Court sentenced to pay a fine of $200 for each violation, and on February 15 1938, a writ of habeas corpus was issued by this Court on the petition of the said F. L. Wise.

The return to the writ so issued, as made by the City of Sarasota, its Mayor and Chief of Police, shows that the petitioner, on the 6th day of July, 1937, acquired title to Lots 167 and 168 of Bayhaven Subdivision in the City of Sarasota, Florida, and erected thereon a building, and upon completion there took up his residence therein and made application for a license to operate the business of packing and selling citrus fruit. The issuance of the license was refused, when a legal tender of the correct amount required by the city for the license was made to the city. The petitioner continued to stock the premises with citrus fruits and offered the same for sale, when he was taken into custody by the Chief of Police and by two warrants charged with the violation of Subsection 1 of Section 4 of Zoning Ordinance No. 480, passed by the City Council on July, 25, 1936. There is a technical contention that the petitioner was not in custody or unlawfully detained when the writ issued by this Court. The record shows that the petitioner was convicted and sentenced for the violation of the ordinance. It appears that a decision of the case at bar turns on the question of whether or not the Zoning Ordinance No. 480 is valid and reasonable.

It is admitted by counsel for the respective parties that Ordinance No. 480 is a Zoning Ordinance and lawfully enacted by the City of Sarasota, Florida, and was in force and effect in the City of Sarasota on February 8th and 9th, 1938. It is contended by counsel for petitioner that the ordinance is invalid, discriminatory, arbitrary and unconstitutional, while counsel for the City of Sarasota contends that the city had the charter power to enact the ordinance and that the ordinance is well within the police powers granted to municipalities to enact ordinances for the protection, comfort, health and general welfare of the people. The leading case on Zoning Ordinances is cited and relied upon, namely, Euclid v. Ambler Realty Co. 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303, 54 A.L.R. 1016, and several decisions of this Court on Zoning Ordinances.

The ordinance is assailed here on the ground that it is arbitrary, discriminatory, unreasonable, unconstitutional and void. It is established that where a person is convicted and sentenced under an invalid municipal ordinance, the said judgment of conviction and sentence may be inquired into and the petitioner discharged, and the remedy is habeas corpus. See Cason v. Quinby, 60 Fla. 35, 53 So. 741. A person held in custody under a sentence of a municipal court upon a conviction of a charge based on an ordinance alleged to be void--the validity of the ordinance may be tested by habeas corpus. See Hardee v. Brown, 56 Fla. 377, 47 So. 834; Pounds v. Darling, 75 Fla. 125, 77 So. 666 L.R.A.1918E, 949; Liberis v. Harper, 89 Fla. 477 104 So. 853; Kinkaid v. Jackson, 66 Fla. 378, 63 So. 706; Shelton v. Coleman, 136 Fla. 625, 187 So. 266; Masters v. Cobb, 111 Fla. 267, 149 So. 337.

The record discloses the following facts: F. L. Wise applied to the City of Sarasota for a permit to erect a combination dwelling, fruit packing house and display room on lots within the area of land designated under the ordinance as Class B, residential property. The petitioner applied to the Zoning Board for an order re-zoning the premises so as to permit the erection of the combination house, but the application to the Zoning Board was withdrawn by the petitioner when the City of Sarasota issued to petitioner a permit to build a residence of the same dimensions and description which had been previously refused. When the building was completed, petitioner applied for a license to operate the business of packing and selling citrus fruit at said location, but the license was refused and petitioner tendered to the city the sum of $10 and demanded the issuance of a license, which was again refused.

The area of the City of Sarasota is six miles long north and south on Sarasota Bay and four miles wide east and west, and the property of the petitioner is situated in a northerly direction and nearly two miles from the center of the City of Sarasota on the Tamiami Trail. There is a filling station not a great distance from petitioner's property. Two tourist camps, a store, restaurant, dance hall, curio shop, and other business property are also located not a great distance from the petitioner's property. Likewise, a public school and the Ringling Art School are located in the vicinity of the Wise property.

On July 14, 1938, by an order of this Court, Honorable W. T. Harrison, a Judge of the Twelfth Judicial Circuit, was appointed Commissioner of this Court and directed to take the evidence offered by the parties on the issues tendered, and to make recommendations to this Court upon the testimony taken before him. The material portions of the recommendations of the Honorable W. T. Harrison, as Commissioner, based on the evidence taken before him, are, viz:

'First--The petitioner F. L. Wise, made application for permit on June 14th, 1937 for the erection of a building designated as living room, display rooms, and packing house, size 90 feet, depth 25 feet, height 10 feet, stories one, rooms 4, novelty siding, metal roof, partially ceiled, estimated cost $4500.00, which permit was on the same day refused, 'as lot is in Zone B. residence district.'

'Whereupon, on an application bearing date July 2, 1937 F. L. Wise made application for permit to construct a residence, size 90 feet, depth 25 feet, height 10 feet, stories one, rooms 5 and garage, novelty siding and metal roof, ceiled inside, cost $4250.00, which permit was issued on July 1, 1937, the permit states 'Zone B, O. K. for residence,' with the further notation in red pencil 'permit issued on instruction from Chairman of Zoning Board,'

'It will be noted by these two exhibits 'F' and 'G', the building described in both instances is occupying the same lot and is of identical dimensions.

'There appears in the record some basis for the contention of Mr. Wise of assurances modification would be made in the zoning classification of this property which would permit his operation of a packing house, thereon. However, he knew the property was classified as 'Class B residential' when he bought it.

'Second--The lot in question is classified 'B residential' property. It is within a few hundred feet of marginal business property and from all testimony taken, I am of the opinion the property is not desirable as residential property. It is situated on the Tamiami Trail, the main entrance into the city of Sarasota, approximately two miles from the heart of town. The packing house operated by Mr. Wise does not fall within that class of packing houses designed and equipped to handle any great volume of citrus fruits. It is designed primarily for the packing of fruit for sale in small lots or for handling orders in small quantities. It is not designed to handle car lot or truck lot shipments. It is not located on the railroad, neither does it have access to water facilities for shipment except by transporting the fruit after it is packed to the water terminal.

'It is the position of the city that a packing house of this nature can be lawfully operated and maintained in the business or marginal business districts of the city. Packing houses of this nature are usually located on a thoroughfare at or near the outskirts of the city, where parking facilities are available and where their wares may be displayed to the traveling public. The location appears to be ideal from the standpoint of the operation of such a plant, and since the same is immediately adjacent to marginal business property on a principal thoroughfare removed from filling stations only by streets to the south and west, I am of the opinion Mr. Wise has shown himself entitled to have his property reclassified, and that as applies to him and the house on this particular property, the ordinance is unreasonable. Whether under the circumstances he should have assailed the ordinance by other procedure, I make no suggestion.

'There is ample testimony by the owners of homes not far removed from Mr. Wise's plant to support the finding here made. The former owner of the property, E. F.

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