Safer v. City of Jacksonville, L-312

• Decision Date: 17 March 1970
• Docket Number: No. L-312,L-312
• Citation: 237 So.2d 8
• Parties: Anna SAFER and Josephine Safer, as Beneficiaries and Trustees of the Estate of Harry Safer, and Benjamin Safer, as Trustee of the Estate of Harry Safer, Appellants, v. CITY OF JACKSONVILLE, a municipal corporation, Appellee.
• Court: Florida District Court of Appeals

Page 8

237 So.2d 8

Anna SAFER and Josephine Safer, as Beneficiaries and Trustees of the Estate of Harry Safer, and Benjamin Safer, as Trustee of the Estate of Harry Safer, Appellants, v. CITY OF JACKSONVILLE, a municipal corporation, Appellee.

No. L-312.

District Court of Appeal of Florida, First District.

March 17, 1970.

Rehearing Denied April 10, 1970.

Evans & Stewart, Jacksonville, for appellants.

William L. Durden, David U. Tumin, William Lee Allen, Jacksonville, for appellee.

WIGGINTON, Judge.

Plaintiffs have appealed a final judgment denying in all respects their prayer for relief and dismissing with prejudice their complaint seeking a declaration of their rights under a housing ordinance, and an injunction.

This is the second appearance of this case in this court. On the first appearance we reversed a final judgment dismissing plaintiffs' complaint with prejudice for failure to state a cause of action, and remanded the cause for further proceedings. ¹

From the stipulation of the parties, and the evidence adduced at the trial, the following facts appear without material dispute.

During his lifetime Harry Safer accumulated a modest estate consisting of eight dwellings located in a low income area of Jacksonville, each containing rental units occupied by tenants. Harry Safer executed a will creating a trust, the corpus of which was composed primarily of the rental units owned by him, directing that the property be maintained in good repair and the income derived therefrom be paid to his widow and two maiden daughters. After his death his trustee managed the property in the manner directed by the will and was able to derive enough income above expenses to care for the basic needs of the widow until the time of her death, and for the basic needs of the two elderly maiden daughters who are entirely dependent upon the income of the trust for their livelihood. The total value of the entire trust estate was shown to be approximately $40,000. Each of the rental units contains a private indoor bath with tub or shower, flush-type toilet, kitchen sink, and all are wired for electricity. The fireplaces, chimneys and flues located in the units are maintained in a good state of repair. Approximately one-half of the tenants or their families have occupied the units rented by them for more than thirty years. In accordance with the directions contained in the will, the trustee followed the practice of painting each house with two coats of paint every four or five years.

Under the authority of its Housing Code, the appellee City of Jacksonville caused an inspection to be made of plaintiffs' dwelling units which resulted in a report charging seventy violations of the Code. Plaintiffs were directed to either cure the violations as found to exist or in default thereof the tenants would be required to vacate the premises and each dwelling unit placarded with the warning that it is unfit for human habitation. The cost of curing all of the alleged violations specified by the city inspector was found to be approximately $20,000, or one-half the total value of the entire property. Being without funds to defray the cost of compliance with the City's directive, plaintiffs appealed to the Board of Adjustment and otherwise exhausted the administrative remedies afforded under the Housing Code, all to no avail.

Being unable to secure administratively the relief to which they deemed themselves entitled, appellants brought this action for declaratory relief challenging the validity of the Housing Code enacted as Ordinance FF-415 of the City of Jacksonville, and Chapter 67-1576, Laws of Florida, Acts of 1967, being the enabling act on which the validity of the ordinance depends. In addition, plaintiffs sought an injunction to restrain the City from interfering with their contractual relations with their tenants and from ordering the dwellings to be vacated and posted as unfit for human habitation.

After the pleadings in the case were settled, a pretrial order was rendered by the court adjudging that the only factual issue in dispute was whether any of the rental units owned by the plaintiffs had any defect or deficiency therein or in any part thereof which would materially jeopardize or adversely affect the health or safety of any tenant. The order further adjudged that the legal issues to be determined were as follows:

1. The constitutional validity of the enabling act in whole or in part.

2. Whether the defendant, in enacting the Housing Code, exceeded the authority given it by the Florida legislature in the enabling act.

3. Whether the defendant's demands on the plaintiffs exceeded the scope of the Housing Act.

After evidence by the parties was adduced at the trial, the jury was furnished with a special verdict containing 140 interrogatories relating to the seventy alleged violations of the Code charged by the inspector to have occurred and the defects found to exist in the rental units. The interrogatories required the jury to state whether they found the alleged defects to exist, and, if so, whether such defects in any material manner jeopardized or adversely affected the health or safety of any tenant. The jury rendered its verdict finding that fifty of the seventy alleged defects reported by the city inspector either did not exist, or if they did, they in no manner jeopardized or adversely affected the health or safety of any tenant. Of the twenty defects found to exist, the jury found that nineteen of these had been cured prior to the trial. The only defect found not to have been cured was a handrail leading from the first to the second floor in one of the dwelling units which plaintiffs immediately had installed at a cost of $28.50 and proof thereof filed with the court. The entire cost incurred by the plaintiffs in curing the twenty material defects reported by the city inspector amounted to less than $1,000 of the $20,000 it would have cost to have cured the remaining fifty defects reported by the City which the jury found either did not exist or were not material.

By the final judgment appealed herein the trial court found that Chapter 67-1576, Laws of Florida, the enabling act adopted by the Legislature, is constitutional and valid; that the defendant City did not exceed the authority granted it by the enabling act in its enactment of the Housing Code, Ordinance FF-415; and, that the defendant's demands on the plaintiffs did not exceed the scope of the Housing Code. Based upon such findings the court denied plaintiffs' prayer for relief in all respects; held that Housing Code to be constitutional and valid against all attacks; and thereupon dismissed plaintiffs' complaint with prejudice.

That provision of the final judgment which found the enabling act, Chapter 67-1576, Laws of Florida, Acts of 1967, to be constitutional and valid has not been questioned on this appeal and therefore no further comment will be made concerning this provision of the final judgment.

Appellants vigorously challenge that part of the judgment which holds the Housing Code, Ordinance FF-415, to be constitutional and valid in all respects. The two principal provisions of the Code toward which appellants direct their attack are those granting to the Board of Adjustment the right to grant relief against the strict or literal enforcement of the Code under circumstances where such enforcement would cause an undue hardship, to manifest injustice, and would be contrary to the spirit and purpose of the Code or public interest. The sections of the Code so challenged are as follows:

'Section 105.1--Hardships. 'Where the literal application of the requirements of this Code would appear to cause undue hardship on an owner or tenant or when it is claimed that the true intent and meaning of this Code or any of the regulations therein have been misconstrued or wrongly interpreted, the owner of such building or structure, or his duly authorized agent, may appeal from the decision of the Supervisor of Building to the Housing Board of Adjustments and Appeals,' as set forth in Section 107--Appeals.'

'Section 108.1--Variations and modifications.

(a) The Housing Board of Adjustments and Appeals, when so appealed to and after a hearing, may vary the application of any provision of this Code to any particular case when, in its opinion, the enforcement thereof would do manifest injustice, and would be contrary to the spirit and purpose of this Code or public interest, or when, in its opinion the interpretation of the Supervisor of Building should be modified or reversed.'

It is appellants' position that the foregoing provisions of the Code constitute an unlawful delegation of legislative power to an administrative board because they contain no standard by which 'undue hardship' or 'manifest injustice' may be measured in order to determine whether an owner or tenant is entitled to the relief provided for in the Code. Appellants argue that because of this deficiency the Housing Board of Adjustments and Appeals may arbitrarily and capriciously grant or withhold relief against literal application of the Housing Code according to whim or caprice under the guise of exercising the discretionary power vested in it by the Code. We are unable to agree that such is the legal effect...