Kuvin v. City of Coral Gables, 3D05–2845.

• Decision Date: 25 August 2010
• Docket Number: No. 3D05–2845.,3D05–2845.
• Citation: 62 So.3d 625
• Parties: Lowell Joseph KUVIN, Appellant,v.CITY OF CORAL GABLES, Appellee.
• Court: Florida District Court of Appeals

62 So.3d 625

Lowell Joseph KUVIN, Appellant,

v.CITY OF CORAL GABLES, Appellee.

No. 3D05–2845.

District Court of Appeal of Florida, Third District.

Aug. 25, 2010.

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, Coral Gables, for appellee.Before GERSTEN, WELLS, SHEPHERD, SUAREZ, CORTIÑAS, ROTHENBERG, LAGOA and SALTER, JJ.

ON MOTION FOR REHEARING EN BANC

ROTHENBERG, J.

Upon our rehearing en banc of this cause, we withdraw the prior panel opinion issued on August 22, 2007, and the subsequent revised dissent, and substitute the following opinion in its stead.

Lowell Joseph Kuvin (“Kuvin”) appeals the trial court's order denying his motion for summary judgment, granting the City of Coral Gables' (“the City”) motion for summary judgment, and issuing a final declaratory judgment in favor of the City. Upon en banc review, we affirm the trial court's order upholding sections 8–11 and 8–12 of the City's zoning code (“Zoning Code”) as a valid, and thus constitutional, exercise of the City's zoning power.

The facts are not in dispute. Kuvin lived in the City in a rental home that did not have a garage. While residing in the City, Kuvin owned and drove 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 City's 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 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. Kuvin additionally contends that these zoning ordinances are unconstitutionally vague and unreasonable as applied to pickup trucks. We conclude that the trial court: (1) applied the correct standard of review as the prohibited conduct does not infringe on a fundamental right; and (2) correctly found that the City's zoning ordinances are a valid exercise of the City's police power. We also find that Kuvin's due process argument is without merit.

THE TRIAL COURT APPLIED THE CORRECT 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 contends that sections 8–11 and 8–12 of the City's Zoning Code are subject to a strict scrutiny standard of review because they infringe on a constitutionally protected fundamental right. We agree with Kuvin that, if a fundamental right or suspect class is involved, a strict scrutiny standard of review is required, and the ordinances may only be upheld if they are strictly tailored to serve a compelling state interest. See J.P., 907 So.2d at 1110 (“To withstand strict scrutiny, a law must be necessary to promote a compelling governmental interest and must be narrowly tailored to advance that interest.”). However, unless the ordinances involve a suspect class or impinge on a constitutionally protected right, they need only bear a rational relationship to a legitimate state purpose. City of Dallas v. Stanglin, 490 U.S. 19, 23, 109 S.Ct. 1591, 104 L.Ed.2d 18 (1989). Because the City's zoning ordinances do not involve a suspect class or impinge on a fundamental right, the trial court correctly applied the “rational relationship” standard of review.

THE ORDINANCES DO NOT IMPINGE UPON A FUNDAMENTAL RIGHT

Kuvin does not assert that he is, nor is he, a member of a suspect class. Rather, he asserts that he is an owner of a personal-use pickup truck and that the ordinances impinge on his fundamental right of freedom of association. This argument is without merit.

Although the Constitution does not explicitly use the term “association,” the right of association is derived by implication from the First Amendment's guarantees of speech, press, petition, and assembly. Proctor v. City of Coral Springs, 396 So.2d 771, 772 (Fla. 4th DCA 1981) (Hurley, J., concurring). The two types of freedom of association recognized by the United States Supreme Court as protected by the Constitution are: (1) the right of association to enter into and to maintain certain intimate human relationships; and (2) the right to associate for the purpose of engaging in those expressive activities protected by the First Amendment. Stanglin, 490 U.S. at 24, 109 S.Ct. 1591; Roberts v. U.S. Jaycees, 468 U.S. 609, 617, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984). Because each is different, they will be addressed separately.

A. Intimate Relationships

The Supreme Court has not marked the precise boundaries necessary to meet the “intimate relationship” protection. Courts, however, have accorded constitutional protection to marriage, the begetting and bearing of children, child rearing and education, and cohabitation with relatives. Bd. of Dirs. of Rotary Int'l v. Rotary Club of Duarte, 481 U.S. 537, 546, 107 S.Ct. 1940, 95 L.Ed.2d 474 (1987); Wallace v. Texas Tech Univ., 80 F.3d 1042, 1051 (5th Cir.1996). Although the Supreme Court has not held that “constitutional protection is restricted to relationships among family members,” it has “emphasized that the First Amendment protects those relationships ... that presuppose ‘deep attachments and commitments to the necessarily few other individuals with whom one shares not only a special community of thoughts, experiences, and beliefs but also distinctively personal aspects of one's life.’ ” Duarte, 481 U.S. at 545, 107 S.Ct. 1940 (quoting Roberts, 468 U.S. at 619–20, 104 S.Ct. 3244).

Kuvin received a citation for parking his open-bed pickup truck in front of his residence at night.¹ Kuvin does not allege, nor does the record demonstrate, that the City's ordinances restricting the overnight parking of trucks, except in enclosed garages, interferes with any of his intimate relationships. Kuvin was cited for parking his truck in front of the house he was renting during the prohibited time, not for visiting a close friend or relative in the City. Kuvin does not claim that any of his friends or family members were prevented from visiting him when he lived in the City. He does, however, claim that he is prevented from visiting his friends who live in the City after 7:00 p.m. in his truck. While Kuvin does not substantiate this claim and he has never been ticketed for visiting a friend in the City, the types of “intimate associations” that have found protection in the First Amendment have been more intimate than Kuvin occasionally visiting friends who currently reside in the City. See Wallace, 80 F.3d at 1051 (“The specific types of intimate associations which have found protection in the First Amendment have been more intimate than our image of typical coach-player relationships.”). Even assuming Kuvin maintained or maintains a close friendship with individuals living in the City, we are unaware of, and Kuvin has failed to direct us to, “any authority which has recognized a close friendship, without more, as the highly personal or intimate human relationship that is protected by the United States Constitution.” Henrise v. Horvath, 174 F.Supp.2d 493, 500 (N.D.Tex.2001) (footnote omitted).

B. Expressive Association

The second protected right of association is the right of “expressive association.” The First Amendment protects “a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends.” Roberts, 468 U.S. at 622, 104 S.Ct. 3244. “According [constitutional] protection to collective effort on behalf of shared goals is especially important in preserving political and cultural diversity and in shielding dissident expression from suppression by the majority.” Id. at 622, 104 S.Ct. 3244.

Alth...