Fogg v. City of South Miami

• Decision Date: 01 February 1966
• Docket Number: No. 65-369,65-369
• Citation: 183 So.2d 219
• Parties: E. G. FOGG, III, and A. S. Fogg, d/b/a A. & E. Investment Company, Appellants, v. CITY OF SOUTH MIAMI, a municipal corporation, Appellee.
• Court: Florida District Court of Appeals

Page 219

183 So.2d 219

E. G. FOGG, III, and A. S. Fogg, d/b/a A. & E. Investment Company, Appellants, v. CITY OF SOUTH MIAMI, a municipal corporation, Appellee.

No. 65-369.

District Court of Appeal of Florida, Third District.

Feb. 1, 1966.

Rehearing Denied March 9, 1966.

William W. Charles, Miami, for appellants .

George B. Hardie, Jr., South Miami, for appellee.

Before HENDRY, C. J., and TILLMAN PEARSON and CARROLL, JJ.

TILLMAN PEARSON, Judge.

The appellant owns property in the City of South Miami. The property is zoned for business, but its C-1 classification is subject to a provision which prohibits 'a drive-in operation.' ¹ The appellant was denied a building permit to build a dairy products retail store because they type of store planned was one where the customer drives in and purchases the products without getting out of his car. Appellant filed a complaint in chancery seeking a declaration that: (1) the provision against a 'drive-in operation' was void because it was arbitrary and unreasonable, and (2) the operation of a Farm Store retail dairy establishment is a C-1 Business District usage under the zoning ordinance. The chancellor held that the ordinance was valid and that a Farm Store was prohibited by the ordinance. This appeal is from that decree. We reverse upon a holding that the ordinance, as applied to this particular business, has no relation to public welfare.

The chancellor defined a 'drive-in operation' as a place where people can drive up in an automobile and be served without having to alight from the automobile. We find nothing in this record upon which this definition could be predicated, but without a doubt, it is a good one. Cf., State ex rel. Spiccia v. Abate, Ohio App., 196 N.E.2d 346 (1964), aff'd 2 Ohio St.2d 129, 207 N.E.2d 234 (1965). We hold that the chancellor did not err in holding that the ordinance purported to exclude all business activities where the customer does not alight from his car.

The record indicates that the City made no contention that public safety or public health was involved, but relied entirely upon the opinion of its expert witnesses that the provision prohibiting 'drive-in operations' contributed to the public welfare of the City by providing a sort of 'continuity' to the retail business section of the City. It was urged that all of the merchants benefit by a requirement that the customer alight from his car to make a purchase because once the customer is out of his car he is a prospective customer of all the merchants. ²

The chancellor set forth the essential question thus presented:

'Now, the only question in the world here is may the City constitutionally pass an ordinance which limits this particular plaintiff from building a drive-in on this area because to build a drive-in in the area would react to the disadvantage of all business people located within the C-1 zone and would tend to detract from the development of the zone because it would cause other people not to want to develop retail stores there because they know that it's easier for somebody to drive in and buy their milk than it is by walking in. This is the real constitutional question involved. Can it be done constitutionally?

'The City's position, it's finally disclosed, is that people who buy, invest and build retail stores in the C-1 zone understand that when somebody goes down there to buy a pair of shoes for the kids, that while there they walk next door to the drug store and buy some liniment, and then while there they walk next door and go into the little retail store and buy a gallon of milk, and that this is what they call continuity of something or another, and this is very advantageous. I assume they are talking about to the business people because it depends on the woman whether she wants to go next door or drive into the drive-in. So they must be talking about economics and regulation of competition through zoning. This is really what you're saying.'

While we agree with the chancellor's statement of the question, we must disagree with his answer. ³ The 'public welfare' with which the City and the courts must be concerned is the welfare of the whole community. A benefit or anticipated benefit to a special group within the City is not enough. Burritt v. Harris, Fla.1965, 172 So.2d 820; City of Miami Beach v. Seacoast Towers-Miami Beach, Fla.App.1963, 156 So.2d 528; cf., Rabin v. Conner, Fla.1965, 174 So.2d 721.

It was disclosed that the City made exceptions by permitting drive-in operations in the area in question for a gasoline service station, a bank and a savings and loan business. To permit drive-in operations for such businesses and deny it to a dairy products store would appear to be arbitrary and discriminatory. This is so,...