Sunad, Inc. v. City of Sarasota
| Decision Date | 08 June 1960 |
| Parties | SUNAD, INC., a corporation organized and existing under the laws of the State of Florida, Petitioner, v. CITY OF SARASOTA, a municipal corporation of the State of Florida, Respondent. |
| Court | Florida Supreme Court |
William A. Gillen of Fowler, White, Gillen, Humkey & Trenam, Miami, and Clyde H. Wilson, Sarasota, for petitioner.
Worth Dexter, Jr., of Dexter, Conlee & Bissell, Sarasota, for respondent.
E. Snow Martin, of Bryant, Martin & Kibler, Lakeland, for Citrus Advertising Company, Lakeland, Florida, amicus curiae.
Fred R. Stanton, of Copeland, Therrel, Baisden & Peterson, Miami Beach, for Donnelly Advertising Corporation, Miami, Florida, amicus curiae.
Sam T. Dell, Jr., of Lazonby, Dell, Graham & Willcox, Gainesville, for Shands Poster Service, Gainesville, Florida, amicus curiae.
John A. Paul, of Warwick, Paul & Warwick, West Palm Beach, for Zimmer Advertising, Inc., West Palm Beach, Florida, amicus curiae.
We assumed jurisdiction of this litigation on petition for certiorari because of the apparent conflict between the decisions of the district court of appeal in the present litigation and of this court in Anderson v. Shackleford, 74 Fla. 36, 76 So. 343, L.R.A.1918A, 139, or so much of them as dealt with the factor of aesthetics in deciding whether or not there could be interference with the use of private property in the interest of the public welfare. On this subject the district court of appeal followed our opinion in City of Miami Beach v. Ocean & Inland Co., 147 Fla. 480, 3 So.2d 364, and later related decisions. A present consideration of the two cases cited and a study of the factual situation in the immediate controversy will develop the question of jurisdiction and lead to a determination of the main issue decided by the circuit court and the district court of appeal.
The former opinion was adopted by the court in 1917, the latter in 1941. It seems fitting, before analyzing them, to bring to mind the enormous metamorphoses in the economy and the industry of the state in the intervening years. True, the constitutional guaranties with reference to the enjoyment of property should remain stable but it is equally true that they are not so rigid that they should not, within the realm of reasonableness, bend to accommodate the public welfare, the well-being of the whole people.
In order to get a true picture of the points in dispute we should outline the facts in the case first cited which we shall hereafter call the Anderson case. There was an ordinance in the city of Lake City prohibiting the use of a billboard higher than six feet within 10 feet of a sidewalk without permission of the city council 'in each specific case,' and forbidding the use of a wall as a billboard.
A warrant had been issued for the arrest of the plaintiff in error charging him with construction of a sign in violation of the ordinance, and upon his conviction he was sentenced to pay a fine. The plaintiff in error refused to comply with the sentence whereupon, though no alternative sentence to jail had been imposed, he was placed under arrest. The court commented that there was no showing in the record of the existence of an ordinance requiring the marshal to take into his custody anyone failing to pay a fine and no 'pretense' that the plaintiff in error was held under a commitment, capias or sentence of imprisonment. Even assuming, said the court, that the act of the plaintiff in error constituted a violation of the ordinance the detention was unlawful.
Although it seemed unnecessary to a decision of the controversy, the court discussed the provisions of the ordinance making the significant observation that 'the affidavit wholly failed to charge the defendant with the violation of any provision of the ordinance.' Despite the lack of power in the marshal to restrain the plaintiff in error of his liberty without commitment, capias or sentence and the remark of the court that there was a total failure to charge the plaintiff in error with infraction of any provision of the ordinance, the court explored the inhibitions of the ordinance itself and concluded with the statement, which appears to have been pure obiter dictum, that the city had no power to deprive an owner of the legitimate use of his property because such use offended the aesthetic or refined taste of other persons.
Lifting this statement out of context, taking it for face value and disregarding its gratuitous character, it conflicts not only with the decisions of the district court of appeal but also with the ruling of this court in City of Miami Beach v. Ocean & Inland Co., supra, upon which that court based its conclusion on this phase of the controversy, namely that construction of buildings in areas of a certain character could be restricted by zoning ordinance because of the necessity to the welfare of the people to maintain aesthetic appeal.
So the apparent inconsistency in the language of the two cases justifies the exercise of our jurisdiction under Sec. 4, Art. V of the Constitution, as amended 6 November 1956, F.S.A.
With the preface we approach a solution of the problems confronting us in the immediate controversy.
The petitioner is a corporation engaged in the business of building, maintaining and leasing to advertisers billboards of 300 square feet on which are placed lithographed advertising panels. The dimensions of the billboards are said to be standard throughout the United States, thereby making possible the preparation of the posters in large quantities at resultant reduced costs.
The respondent...
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