State ex rel. Boozer v. City of Miami

• Decision Date: 10 January 1967
• Docket Number: 66--146,Nos. 66--43,s. 66--43
• Citation: 193 So.2d 449
• Parties: STATE of Florida ex rel. Robert G. BOOZER, Appellant, v. CITY OF MIAMI, a municipal corporation et al., Appellees. STATE of Florida ex rel. E. B. ELLIOTT ADVERTISING COMPANY, a Florida corporation, Appellant, v. Robert E. FERENCIK, as Director of the Building Department of the City of Miami, and R. D. Korner, as Chief Zoning Inspector of the City of Miami et al., Appellees.
• Court: Florida District Court of Appeals

Page 449

193 So.2d 449

STATE of Florida ex rel. Robert G. BOOZER, Appellant, v. CITY OF MIAMI, a municipal corporation et al., Appellees.

STATE of Florida ex rel. E. B. ELLIOTT ADVERTISING COMPANY, a Florida corporation, Appellant, v. Robert E. FERENCIK, as Director of the Building Department of the City of Miami, and R. D. Korner, as Chief Zoning Inspector of the City of Miami et al., Appellees.

Nos. 66--43, 66--146.

District Court of Appeal of Florida, Third District.

Jan. 10, 1967.

Tobias Simon, Terry & McKee and Joseph A. McGowan, Miami, for appellants.

Thomas C. Britton, County Atty., Richard B. Stone, City Atty., and Edward J. Fitzpatrick, Asst. City Atty., for appellees.

Before HENDRY, C.J., and CARROLL and BARKDULL, JJ.

PER CURIAM.

On separate petitions of the appellants Robert G. Boozer and E. B. Elliott Advertising Company, alternative writs of mandamus were issued against the City of Miami, the director of its building department and its chief zoning inspector. The object of the proceedings was to require the respondents to permit the relators to erect outdoor advertising signs on property owned or leased by them within the city, such signs to be located within 600 feet of an expressway. The advertising intended for the signs sought to be erected was not for or limited to advertisement of businesses located on the premises or to products sold thereon.

On motion of the respondent city reciting that the matter was controlled by a county ordinance, Dade County was joined as a respondent in the mandamus actions. Motions to quash filed on behalf of certain of the respondents were denied. Respondents answered denying the alleged duty, relying on provisions of Dade County Ordinance No. 63--26 appearing in the Code of Metropolitan Dade County, §§ 33--121.10 through 33--121.17, which prohibited construction of such billboards or signs within 600 feet of an expressway located in Dade County. ¹

Motions for summary judgment with supporting affidavits were filed by both the relators and the respondents. The motions of the former were denied and those of the latter were granted and judgment was entered for respondents, whereupon relators appealed. In the trial court the causes were consolidated and decided in a single judgment. The separate appeals of the relators were consolidated in this court for briefing and argument. On this appeal it is conceded by the parties that the county ordinance is applicable, and that the case turns on a determination of the validity of the ordinance.

At the outset it should be noted that appellants concede the county ordinance is one which would be a proper exercise of police power if it were applicable to all persons. They contend, however, that the ordinance is made unconstitutional by reason of certain exceptions it contains. Thus in the brief of the appellant Boozer, adopted by the other appellant, it is stated:

'We concede, for the purposes of this appeal, that the ordinance in question--were it equally applicable to all--can be amply supported by safety and aesthetic considerations and therefore does not violate due process of law requirements of the Federal or Florida Constitution.'

The appellants argue the ordinance should be declared unconstitutional on authority of the case of City of Miami v. Plissner, Fla.App.1964, 167 So.2d 620, in which a decision of the tiral court invalidating a Miami ordinance regulating signs adjacent to expressways was affirmed by this court. The affirmance was without opinion other than the citation of the case of Sunad, Inc. v. City of Sarasota, Fla.1960, 122 So.2d 611. The Sunad case held that aesthetic reasons were insufficient (police power) support for the particular regulations involved there. We do not regard the Plissner case as applicable or controlling in our consideration of the validity of the county ordinance involved here.

Next, the appellants argue that the exception allowing point of sale signs invalidates the ordinance. Such an exception in an otherwise valid exercise of police power in the form of a regulatory ordinance of this general nature has been held to be valid. See Hav-A-Tampa Cigar Co. v. Johnson, 149 Fla. 148, 5 So.2d 433. We reject as unsound the further argument of the appellants that the ordinance is invalid because it contains provisions, dealing with exceptions, which are different and stricter for signs in the area up to 200 feet of an expressway than provided for between 200 and 600 feet from an expressway. The minor differences alluded to, which exist with reference to regulations within 200 feet, are not shown to be lacking in reasonable basis for such legislation by the county. The basic support which the ordinance has an an exercise of police power in the promotion of highway safety applies to the regulations and to the exceptions of such regulations in the area or zone within 200 feet of the expressway as well as to such regulations and exceptions provided for in the ordinance which are applicable in the area or zone between 200 and 600 feet from an expressway. See John H. Swisher & Son v. Johnson, 149 Fla. 132, 5 So.2d 441. Moreover, the appellants are unaffected by any different or more restrictive provisions applicable to signs within 200 feet, as permits they sought were for erection of advertising signs in the area between 200 and 600 feet from an expressway.

In our view the trial judge was eminently correct in granting judgment for the respondents, and the judgment appealed from is affirmed.

Affirmed.

1 Dade County Ordinance No. 63--26, omitting certain portions not pertinent to this case, is as follows:

'ORDINANCE PROHIBITING COMMERCIAL ADVERTISING SIGNS WITHIN SIX HUNDRED (600) FEET OF THE RIGHT OF WAY LINE OF AN EXPRESSWAY OR LIMITED ACCESS HIGHWAY, OR RELATED FACILITIES, IN TERRITORIAL AREAS OF DADE COUNTY; PROVIDING EXCEPTIONS; PROVIDING REPEAL CLAUSE; PROVIDING FOR INCLUSION IN CODE; AND PROVIDING AN EFFECTIVE DATE.

'Whereas, the Board of County Commissioners is empowered...