Robinson v. Town of Palm Beach Shores
| Decision Date | 17 September 1980 |
| Docket Number | No. 79-1034,79-1034 |
| Citation | 388 So.2d 314 |
| Parties | Les ROBINSON, Appellant, v. TOWN OF PALM BEACH SHORES, a Municipal Corporation, Appellee. |
| Court | Florida District Court of Appeals |
William M. Furlow of T. G. LaGrone, P. A., Orlando, for appellant.
Jonathon P. Lynn of Stephens, Schwartz, Lynn & Chernay, P. A., Fort Lauderdale, for appellee.
Appellant, Robinson, was given a warning ticket for parking his pick-up truck in a certain area within the municipal limits of the Town of Palm Beach Shores in violation of a municipal ordinance. His complaint for declaratory judgment seeking a declaration that the ordinance in question was unconstitutional was dismissed with prejudice for failure to state a cause of action. This appeal questions the correctness of that dismissal.
The questions presented by appellant for our review are, first, whether a municipal ordinance with quasi-criminal sanctions may be the subject of an action for declaratory relief and second, assuming an affirmative answer to the first, whether it was error to dismiss appellant's initial complaint with prejudice rather than with leave to amend. Appellee poses a third question: that is, whether appellant waived any right to appeal the refusal to grant leave to amend by failing to file a motion for rehearing and to amend the complaint, as suggested by Town of Micanopy v. Connell, 304 So.2d 478 (Fla. 1st DCA 1974).
We answer appellant's first question affirmatively. The validity of a municipal ordinance may be tested in an action for declaratory relief. The statute itself so provides. § 86.021 Fla.Stat. (1979). And see Keay v. City of Coral Gables, 236 So.2d 133 (Fla. 3rd DCA 1970).
Because of the resolution we now undertake of appellant's second question we need not reach the question posed by appellee.
Section 86.021, Florida Statutes (1979), under which appellant seeks a remedy, provides, in pertinent part, as follows:
Any person claiming to be interested or who may be in doubt about his rights under a deed . . . or whose rights, status or other equitable or legal relations are affected by a statute, or any regulation made under statutory authority, or by municipal ordinance . . . may have determined any question of construction or validity arising under such statute, regulation, municipal ordinance . . . and obtain a declaration of rights, status or other equitable or legal relations thereunder.
The requirements which must be met first by the pleadings and eventually by the evidence to entitle one to relief by way of declaratory judgment are succinctly stated in the following paragraph from May v. Holley, 59 So.2d 636, 639 (Fla. 1952):
(8) Before any proceeding for declaratory relief should be entertained it should be clearly made to appear that there is a bona fide, actual, present practical need for the declaration; that the declaration should deal with a present, ascertained or ascertainable state of facts or present controversy as to a state of facts; that some immunity, power, privilege or right of the complaining party is dependent...
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