Proctor v. City of Coral Springs, 79-1582

• Decision Date: 25 March 1981
• Docket Number: No. 79-1582,79-1582
• Parties: Lee W. PROCTOR, Appellant, v. CITY OF CORAL SPRINGS, Appellee.
• Court: Florida District Court of Appeals

Page 771

396 So.2d 771

Lee W. PROCTOR, Appellant, v. CITY OF CORAL SPRINGS, Appellee.

No. 79-1582.

District Court of Appeal of Florida, Fourth District.

March 25, 1981.

Gaylord A. Wood, Jr., Fort Lauderdale, for appellant.

Paul J. McDonough, P. A., Coral Springs, for appellee.

GLICKSTEIN, Judge.

Section 18-5 of the City of Coral Springs, Florida, Code of Ordinances prohibited the owner or person having the use of a "commercial vehicle" from parking the vehicle for any period of time between 9:00 p. m. and 6:00 a. m., or for any period of time on Sunday, on a public right-of-way adjacent to or on private property zoned "R" or "D" unless parked in a covered garage or carport. The definition of "commercial vehicles" was based upon the State of Florida Vehicle Tax Class Codes and descriptive classifications.

On January 15, 1977, Lee Proctor owned a 3/4-ton pickup truck, which was classified as a commercial vehicle under the ordinance. While visiting friends in Coral Springs on that date, Mr. Proctor, parked his pickup truck in the friends' front yard. At 11:00 p. m. he was issued a citation, charging him with violation of the ordinance. The testimony was undisputed that the pickup truck had no commercial marking and that it was not used for commercial purposes.

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. City of Coral Gables v. Wood, 305 So.2d 261, 263 (Fla. 3d DCA 1974). Zoning measures designed to enhance the aesthetic appeal of a community have been recognized as a valid exercise of the police power. See e. g. Merritt v. Peters, 65 So.2d 861 (Fla.1953); City of Miami Beach v. Ocean & Inland Co., 147 Fla. 480, 3 So.2d 364 (1941); City of Coral Gables v. Wood, supra. In City of Coral Gables v. Wood, supra, the court held that a zoning ordinance aimed at preventing the unsightly appearances and diminution of property values that occurred when camper-type vehicles were parked or stored out of doors in residential areas of a community, was not arbitrary or unreasonable. Storage of the vehicles was permitted within a garage or other structure, and therefore the ordinance did not unconstitutionally deprive the owners of a right to have camper-type vehicles. More akin to the instant case was Henley v. City of Cape Coral, 292 So.2d 410 (Fla. 2d DCA 1974), where an ordinance intended to protect residential neighborhoods against the lingering presence of commercial vehicles was held not to be overbroad or unreasonable, particularly since the commercial vehicles could be garaged at residences. However, the court anticipated a situation such as the one sub judice and said "this ordinance may be unconstitutionally applied as for example to a station wagon which gives no outward sign of being used in business." Id. at 411.

Notwithstanding the general propositions of law recited above, we hold that the subject ordinance is unreasonable and unconstitutional as applied to pickup trucks. It restricts drivers of pickup trucks from visiting with friends or family by making it illegal to be parked in a residential driveway, or on the hosts' lawn, or in the street in front of the home after 9:00 p. m. even though the vehicle in question is not truly a commercial vehicle; i. e., without commercial markings of any nature and not used for commercial purposes.

Accordingly, we reverse and remand for proceedings consistent with this opinion.

REVERSED and REMANDED.

HURLEY, J., concurs specially with opinion.

MOORE, J., dissents with opinion.

HURLEY, Judge, concurring.

I join in the opinion of the court for in my view, the ordinance, as presently drawn, constitutes an impermissible infringement upon a citizen's freedom of association which I consider to be an inalienable right guaranteed to the citizens of Florida by Article 1, Sections 2, 4, 5 and 23 of the Florida Constitution.

Over a century ago, Alexis de Toqueville observed that the "most natural privilege of man, next to the right of acting for himself, is that of combining his exertions with those of his fellow creatures and of acting in common with them." ¹ It was for this reason that he thought "the right of association ... almost as inalienable in its nature as the right of personal liberty." ² Today it is well recognized that both the federal and state constitutions guarantee freedom of association. Indeed, the United States Supreme Court has repeatedly described this right as among the preferred rights derived by implication from the First Amendment's guarantees of speech, press, petition and assembly. ³ Though most of the cases treat freedom of association as ancillary to other rights protected by the First Amendment, it is agreed that "it is immaterial whether the beliefs sought to be advanced by association pertain to political, economic, religious or cultural matters...." NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958).

In addition to its roots in the First Amendment and in Article 1, Sections 4 and 5 of the Florida Constitution, I believe that freedom of association is also an inseparable aspect of an individual's rights of privacy and personhood. The decision to join with others in pursuit of a lawful common goal or simply to enjoy each other's company is a fundamental aspect of individual liberty. It is deep within our traditions, and "(t)he right of association, the right to invite the stranger into one's home is ... basic in our constitutional regime ...." ⁴ Thus, I suggest that the time has come to enunciate clearly that freedom of association is one of the inalienable rights guaranteed to the citizens of Florida by Article 1, Sections 2 and 23 of the Florida Constitution. The import of the constitutional right of association is that "whatever action a person can (lawfully) pursue as an individual, freedom of association must ensure he can pursue with others." ⁵ So obvious is this right that it has largely been taken for granted, but the case at bar illustrates the need for explication; also, it is a particularly apt example of how rights of association, privacy and personhood are often inextricably entwined.

In an effort to regulate parking or storage of commercial or recreational vehicles, the City of Coral Springs enacted an ordinance which prohibits "commercial vehicles" from being parked on the side of the roadway, or on private property "for any period of time between 9:00 p. m. and 6:00 a. m." during the week, "or for any period of time on Sunday." The ordinance defines "commercial vehicles" to include all pickup trucks, irrespective of size or use. Furthermore, it subjects both the vehicle owner and the homeowner to possible criminal penalties. In a suburban community like Coral Springs, where transportation is a necessary incident to association, the inescapable effect of the ordinance is to substantially inhibit free association. It limits an individual's ability to visit friends in the privacy of their home if the visitor must utilize a pickup truck for transportation. This is not far-fetched conjecture; it is precisely what occurred in the case at bar. Appellant, Lee Proctor, drives a 1974 Cheyenne Chevrolet pickup truck for every-day transportation. The vehicle bears no commercial designations, yet on January 15, 1977, at approximately 11:00 p. m., Proctor received a ticket while visiting at the Coral Springs home of Bob and Margaret Withrow. The record is not clear whether Proctor's pickup was parked on the Withrows' property or on the side of the roadway in front of their home. The violative conduct, however, was that the truck was parked,...