Vickery v. City of Pensacola
| Decision Date | 16 February 2022 |
| Docket Number | 1D19-4344 |
| Citation | 342 So.3d 249 |
| Parties | Larry and Ellen VICKERY, Appellants, v. CITY OF PENSACOLA, a Municipal Corporation, Appellee. |
| Court | Florida District Court of Appeals |
Paul Bailey of Welton Law Firm, LLC, Crestview and Kim Anthony Skievaski of Kim Anthony Skievaski, P.A., Pensacola, for Appellants.
Heather F. Lindsay, Assistant City Attorney, Pensacola, for Appellee.
Larry and Ellen Vickery appeal from an order denying dissolution of a temporary injunction prohibiting them from removing a tree from their property. Because the injunction was improper, we reverse.
The Vickerys own a residential lot in the North Hill Preservation District of Pensacola, on which a live oak tree is situated in the rear corner. Hoping to build a house and wanting to avoid potential damage from the tree, the Vickerys applied to the Parks and Recreation Department for a permit to remove the tree. The permit was denied shortly before section 163.045(1), Florida Statutes, came into effect on July 1, 2019. See Ch. 2019-155, §§ 1, 4, Laws of Fla. This statute authorizes residential property owners to remove trees from their property without interference from local government if the owners obtain documentation, from an International Society of Arboriculture (ISA)-certified arborist or Florida-licensed landscape architect, indicating that the trees present a danger to persons or property.
The Vickerys’ builder emailed the City of Pensacola (the City) to inform it that the Vickerys planned to remove the tree. The builder attached a letter from an ISA-certified arborist indicating that the main trunk of the tree had "severe decay" resulting from the prior removal of one of the tree's main stems, as well as other evidence of the tree "rotting on the inside." As a result, the letter contained the arborist's opinion that the "location of the tree puts homes and the occupants at risk of severe damage and safety" when the tree fails.
The City filed an action for declaratory judgment seeking a determination that section 163.045(1), Florida Statutes, did not prohibit the City from enforcing the local code provisions requiring the Vickerys to obtain a permit to remove the tree. It argued that the statute's use of the words "documentation" and "danger" is ambiguous, that the Vickerys’ documentation was insufficient, and that the Legislature must have intended to require property owners to obtain an objective evaluation based on standards used by ISA-certified arborists. The City also requested a temporary injunction prohibiting the Vickerys from removing the tree.
The trial court granted the temporary injunction, which the Vickerys moved to dissolve. In a hearing on this motion, the City called experts to contest the Vickerys’ arborist's finding of danger. Additionally, a landscape architect testified that those in his profession are not bound by written guidelines, that they use their own discretion to determine how to assess the danger of a tree, and that he would not typically prepare a written report of the danger.
After the hearing, the court denied the Vickerys’ motion. In its order, it discussed the City's likelihood of success on the merits of the declaratory action. In addition to accepting the City's contention that the tree was not enough of a danger to remove, the court interpreted section 163.045(1). It stated that "the Legislature left express clues in the statutory language to narrow the scope of ‘danger’ and ‘documentation’ " and concluded that It further concluded that "the only reasonable interpretation ... is one where: (1) an arborist or landscape architect must determine that a tree is a danger; and (2) for the determination and documentation to be rendered utilizing only the methodologies and official documents applicable to the two respective industries." The court determined that the statute applies only when a tree is dangerous, as substantiated by documentation, and also determined that section 163.045(1) does not preempt the City "from challenging, through submission of its own expert opinions, the conclusions reached by an arborist who generated questionable documentation that [the tree] is dangerous."
The Vickerys brought this appeal. They argue that the trial court ignored the plain meaning of section 163.045(1). The City counters that the statute is ambiguous and the trial court correctly interpreted it, including that the statute should be read to require arborists and landscape architects to follow industry standards and methods. It also argues that the trial court's interpretation does not impede the Legislature's purpose, which the City contends is to relieve residents of a bureaucratic process when a tree on their land is dangerous. Additionally, the City maintains that enforcing the local code is permissible because section 163.045(1) does not preempt all municipal protection of trees, that the Vickerys should have appealed the original denial of their permit application, and that the statute should not apply to the Vickerys at all because they do not yet reside on the property containing the tree. Finally, the City opposes a plain-language interpretation on the ground that it would permit property owners to determine for themselves whether a tree is dangerous, as they could simply pay for the opinion they want.
We review legal conclusions de novo and factual findings for abuse of discretion. See Gainesville Woman Care, LLC v. State , 210 So. 3d 1243, 1258 (Fla. 2017).
To obtain an injunction, a party must show "(1) the likelihood of irreparable harm, (2) the unavailability of an adequate remedy at law, (3) a substantial likelihood of success on the merits, and (4) that the injunction will serve the public interest." Smart Pharmacy, Inc. v. Viccari , 213 So. 3d 986, 989 (Fla. 1st DCA 2016). Only element (3) is at issue in this appeal.
The merits of the declaratory action turn on the meaning of section 163.045(1), Florida Statutes, which provides the following:
A local government may not require a notice, application, approval, permit, fee, or mitigation for the pruning, trimming, or removal of a tree on residential property if the property owner obtains documentation from an arborist certified by the International Society of Arboriculture or a Florida licensed landscape architect that the tree presents a danger to persons or property.
In determining the meaning of this statute, we are bound by the plain language of the text:
If the statutory language is clear and unambiguous, the court must apply that unequivocal meaning and may not resort to the rules of statutory construction. The court must give full effect to all statutory provisions and avoid readings that would render a part of a statute meaningless; additionally, the court may not construe an unambiguous statute in a way that would extend, modify, or limit its express terms or its reasonable and obvious implications.
Herman v. Bennett , 278 So. 3d 178, 179–80 (Fla. 1st DCA 2019) (internal citation omitted). Additionally, the following principles apply: "[T]he Legislature is assumed to know the meaning of the words used in the statute and to have expressed its intent through the use of the words." State, Dep't of Revenue v. Lockheed Martin Corp. , 905 So. 2d 1017, 1020 (Fla. 1st DCA 2005). A court may discern "the plain and obvious meaning of the statute's text" from a dictionary. W. Fla. Reg'l Med. Ctr., Inc. v. See , 79 So. 3d 1, 9 (Fla. 2012). "[I]t is not this Court's function to substitute its judgment for that of the Legislature as to the wisdom or policy of a particular statute." State v. Rife , 789 So. 2d 288, 292 (Fla. 2001). "[N]o court is entitled to disregard the plain language of a statute in favor of what it deems to be a more reasonable construction." Horizon Hosp. v. Williams ex rel. Williams , 610 So. 2d 692, 693 (Fla. 2d DCA 1992).
Contrary to the City's contention, the words "documentation" and "danger" are unambiguous. They apply broadly, but their meanings are clear: "Documentation" refers to written evidence, and "danger" refers to risk of harm.
Merriam-Webster defines "documentation" as (1) "the act or an instance of furnishing or authenticating with documents"; (2)(a) "the provision of documents in substantiation" or "documentary evidence"; (2)(b)(1) "the use of historical documents"; (2)(b)(2) "conformity to historical or objective facts"; (2)(b)(3) "the provision of footnotes, appendices, or addenda referring to or containing documentary evidence"; (3) "information science"; or (4) "the usually printed instructions, comments, and information for using a particular piece or system of computer software or hardware." Documentation , MERRIAM-WEBSTER (10th ed. 1998). "Information science" is "the collection, classification, storage, retrieval, and dissemination of recorded knowledge." Information Science , MERRIAM-WEBSTER (10th ed. 1998). Because section 163.045(1) uses "documentation" as a physical thing to be obtained, none of the definitions involving an act, including definition (3), can apply. Definition (4) cannot apply because there is no computer software or hardware at issue. Thus, "documentation" under section 163.045(1) clearly refers to written evidence.
Merriam-Webster defines "danger" as (1)(a) "jurisdiction" (archaic); (1)(b) "reach, range" (obsolete); (2) "harm, damage" (obsolete); (3) "exposure or liability to injury, pain, harm, or loss"; or (4) "a case or cause of danger." Danger , MERRIAM-WEBSTER (10th ed. 1998). The archaic and obsolete definitions do not make sense in context of section 163.045(1), and so clearly "danger" under the statute refers to risk of harm.
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