KUVIN v. CITY of CORAL GABLES

• Decision Date: 25 August 2010
• Docket Number: No. 3D05-2845.,3D05-2845.
• Citation: Kuvin v. City of Coral Gables, 45 So.3d 859 (Fla. App. 2010)
• Parties: Lowell Joseph KUVIN, Appellant, v. CITY OF CORAL GABLES, Appellee.
• Court: Florida District Court of Appeals

45 So.3d 859

Lowell Joseph KUVIN, Appellant,

v.CITY OF CORAL GABLES, Appellee.

No. 3D05-2845.

District Court of Appeal of Florida,Third District.

Aug. 25, 2010.

An Appeal from the Circuit Court for Miami-Dade County, Michael A. Genden, Judge.

Lowell Joseph Kuvin, in proper person.

Ricci-Leopold and Spencer T. Kuvin, Palm Beach Gardens, for appellant.

Akerman Senterfitt and Michael Fertig and Jennifer Cohen Glasser, Miami; Robert S. Glazier, Miami; and Elizabeth M. Hernandez, City Attorney, for appellee.

Before CORTIÑAS and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.

ON MOTION FOR REHEARING

PER CURIAM.

We deny rehearing. However, pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v), we certify to the Supreme Court of Florida the following as a question of great public importance:

MAY A CITY ORDINANCE, WHICH PROHIBITS THE PARKING OF ANY TRUCK IN A PRIVATE DRIVEWAY OR IN A PUBLIC PARKING SPACE AT NIGHT, AS APPLIED TO A PERSONAL-USE LIGHT DUTY TRUCK, BE UPHELD AS CONSTITUTIONAL?

Rehearing denied; question of great public importance certified.

CORTIÑAS, J. and SCHWARTZ, Senior Judge, concur.

ON MOTION FOR REHEARING

ROTHENBERG, J. (dissenting) (revised).

The majority opinion strikes down sections 8-11 and 8-12 of the City of Coral Gables' (“the City”) zoning code (“Zoning Code”) as applied to personal-use pickup trucks on two grounds: (1) sections 8-11 and 8-12 cannot be rationally related to preserving the residential character of a neighborhood by excluding commercial uses because the ordinances are not limited to commercial vehicles; and (2) the ordinances cannot be supported on aesthetic grounds. I must respectfully dissent because the majority opinion suffers from the following fatal flaws: it completely ignores and fails to apply the required standard of review, and it is in direct conflict with binding precedent of the Florida Supreme Court and this Court, holding that aesthetic considerations are a valid basis for zoning in Florida and a valid exercise of a municipality's police powers.

The facts are not in dispute. Lowell Joseph Kuvin (“Kuvin”) lived in the City in a rental home that did not have a garage. At the time of his residency in the City, Kuvin owned and drove for personal use a Ford F-150 pickup truck, which he routinely parked on the street in front of his home. After several warnings, Kuvin was issued a citation, alleging a violation of the City's Zoning Code. After conducting a hearing, the City's Building and Zoning Board (“Board”) found Kuvin guilty of the violation and fined him $50 plus costs.

Kuvin appealed the Board's decision by filing a complaint in the circuit court. In his complaint, Kuvin sought a declaration that sections 8-11 and 8-12 of the Zoning Code were unconstitutional. Section 8-11 prohibits the parking of trucks in residential areas of the City unless parked in an enclosed garage. Section 8-12, the zoning ordinance Kuvin was cited for violating, prohibits the parking of trucks, trailers, and commercial and recreational vehicles upon the streets or other public places in the City between the hours of 7:00 p.m. and 7:00 a.m. of the following day.

Kuvin eventually moved for summary judgment asserting that: (1) sections 8-11 and 8-12 of the City's Zoning Code violated his right of freedom of association; and (2) sections 8-11 and 8-12 of the City's Zoning Code are unconstitutionally vague, arbitrary, capricious, and selectively enforced as applied to pickup trucks. The City filed a cross-motion for summary judgment. The trial court granted the City's motion and entered a final declaratory judgment in favor of the City. Kuvin appealed to this Court, and the majority opinion reverses the trial court's order.

In this dissent, I will address this Court's standard of review, which was not mentioned nor followed by the majority; Kuvin's fundamental rights challenge, which was not addressed by the majority; and decisions by the Florida Supreme Court, this Court, and the Second District that are in conflict with the majority opinion.

STANDARD OF REVIEW

I begin my analysis by addressing this Court's standard of review. Constitutional challenges to statutes or ordinances involve pure questions of law reviewable on appeal de novo. Caribbean Conservation Corp. v. Fla. Fish & Wildlife Conservation Comm'n, 838 So.2d 492, 500 (Fla.2003); see also State v. Hanna, 901 So.2d 201, 204 (Fla. 5th DCA 2005) (“The interpretation of a statute or an ordinance is a purely legal matter and is subject to de novo review.”).

Because Kuvin challenges the constitutionality of municipal zoning ordinances, the scope of our review is dependent on the rights that Kuvin alleges are implicated. As Justice Cantero aptly noted in his dissent in State v. J.P., 907 So.2d 1101, 1120 (Fla.2004), “The first issue in every case considering the constitutionality of a statute or ordinance is which standard applies. Not only is the applicable standard the threshold determination in any constitutional analysis; it is often the most crucial. In this case, it has made all the difference.”

Kuvin argues on appeal that sections 8-11 and 8-12 of the City's Zoning Code infringe on his fundamental First Amendment right of freedom of association. He therefore contends that the trial court erred in failing to apply a strict scrutiny analysis in determining the constitutionality of the ordinances. Although the majority opinion fails to address Kuvin's “fundamental right” argument or to specify the applicable standard of review in analyzing Kuvin's claims, I can only assume by the majority's silence that it too finds Kuvin's fundamental right argument meritless. I will therefore only address Kuvin's First Amendment fundamental right arguments briefly at the end of my dissent, and focus my analysis on what appears to be the majority's position-that no fundamental constitutional rights are at issue in this case and the ordinances are not rationally related to a legitimate public purpose.

The majority's failure to identify its standard of review and the lens through which it applies its judicial scrutiny perhaps explains its conclusions. In fact, it appears that the majority opinion ignores the legal principles which must govern its review. The judicial lens through which this Court must examine the City's exercise of its police power is governed by well-established law, beginning with the premise that rational basis scrutiny “is the most relaxed and tolerant form of judicial scrutiny,” City of Dallas v. Stanglin, 490 U.S. 19, 26, 109 S.Ct. 1591, 104 L.Ed.2d 18 (1989) (emphasis added), and municipal zoning ordinances, which are legislative enactments, are presumed to be valid and constitutional. See Orange County v. Costco Wholesale Corp., 823 So.2d 732, 737 (Fla.2002) (specifying that ordinances reflecting legislative action are entitled to a presumption of validity); State v. Hanna, 901 So.2d 201, 204 (Fla. 5th DCA 2005) (holding that statutes and ordinances are presumed to be constitutional and all reasonable doubts must be resolved in favor of constitutionality).

Statutes and ordinances in Florida not only enjoy a presumption in favor of constitutionality, the Florida Supreme Court and this Court have repeatedly held that zoning restrictions must be upheld unless they bear no substantial relation to legitimate societal policies or it can be clearly shown that the regulation is a mere arbitrary exercise of the municipality's police power. See Dep't of Cmty. Affairs v. Moorman, 664 So.2d 930, 933 (Fla.1995) (“[W]e have repeatedly held that zoning restrictions must be upheld unless they bear no substantial relationship to legitimate societal policies.”); Harrell's Candy Kitchen, Inc. v. Sarasota-Manatee Airport Auth., 111 So.2d 439, 443 (Fla.1959) (holding that zoning regulations are presumptively valid, “and the burden is upon him who attacks such regulation to carry the extraordinary burden of both alleging and proving that it is unreasonable and bears no substantial relation to public health, safety, morals or general welfare”); City of Coral Gables v. Wood, 305 So.2d 261, 263 (Fla. 3d DCA 1974) (“A zoning ordinance will be upheld unless it is clearly shown that it has no foundation in reason and is a mere arbitrary exercise of power without reference to public health, morals, safety or welfare.”).

A zoning ordinance also must be upheld if reasonable persons could differ as to its propriety. In other words, “[i]f the validity of the legislative classification for zoning purposes be fairly debatable, the legislative judgment must be allowed to control.” Vill. of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 388, 47 S.Ct. 114, 71 L.Ed. 303 (1926); Bd. of County Comm'rs of Brevard County v. Snyder, 627 So.2d 469, 472 (Fla.1993); City of Miami Beach v. Ocean & Inland Co., 147 Fla. 480, 3 So.2d 364 (1941).

“The fairly debatable rule has its basis in the deference that the judicial power owes the legislative function under the separation of powers doctrine inherent in our form of government and expressly embodied in our state and federal constitutions.” Albright v. Hensley, 492 So.2d 852, 856 (Fla. 5th DCA 1986) (Cowart, J., dissenting). Thus, “[t]he fairly debatable standard of review is a highly deferential standard requiring approval of a planning action if reasonable persons could differ as to its propriety.” Martin County v. Yusem, 690 So.2d 1288, 1295 (Fla.1997).

The majority correctly recognizes that no fundamental constitutional rights are at issue in this case and that rational basis scrutiny is the proper standard of review. It however completely ignores and does not apply the “relaxed and tolerant form of judicial scrutiny” mandated by the United States Supreme Court in Stanglin, 490 U.S. at 26, 109 S.Ct. 1591; does not apply the presumption of constitutionality afforded statutes and ordinances; fails to recognize that the regulations must be upheld unless it clearly can be shown to be an...