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November 10, 2017 by Tom

Constitutional law — Municipal corporations — Due process — Equal protection — Challenge to constitutionality of village ordinance which prohibits maintaining a vegetable garden in the front yard of a house — Attempt to present an as-applied constitutional challenge to ordinance is barred by res judicata and waiver where constitutional challenge was not raised in earlier code enforcement action — Trial court properly determined the ordinance did not infringe upon fundamental right to acquire, possess, and protect property or right to privacy so that strict scrutiny is not required — Rational basis — Ordinance is rationally related to village code’s design standards and landscaping regulations, and was properly found to be constitutional

42
Fla. L. Weekly D2352aTop of Form

Constitutional
law — Municipal corporations — Due process — Equal protection — Challenge
to constitutionality of village ordinance which prohibits maintaining a
vegetable garden in the front yard of a house — Attempt to present an
as-applied constitutional challenge to ordinance is barred by res judicata and
waiver where constitutional challenge was not raised in earlier code
enforcement action — Trial court properly determined the ordinance did not
infringe upon fundamental right to acquire, possess, and protect property or
right to privacy so that strict scrutiny is not required — Rational basis —
Ordinance is rationally related to village code’s design standards and
landscaping regulations, and was properly found to be constitutional

HERMINE RICKETTS AND LAURENCE
CARROLL, Appellants, vs. VILLAGE OF MIAMI SHORES, FLORIDA, et al., Appellees.
3rd District. Case No. 3D16-2212. L.T. Case No. 13-36012. Opinion filed
November 1, 2017. An Appeal from the Circuit Court for Miami-Dade County,
Monica Gordo, Judge. Counsel: Institute for Justice and Ari Bargil and Allison
Daniel and Michael Bindas (Bellevue, WA), for appellants. Genovese Joblove
& Battista and Richard Sarafan and Nina Greene, for appellees.

(Before ROTHENBERG, C.J., and SALTER
and LUCK, JJ.)

(SALTER, J.) As the initial brief in
this appeal frames the issue:

Miami
Shores homeowners may have virtually anything in their front yard. They may
decorate with garden gnomes, pink flamingos and trolls. They may park their
boats and jet skis. And they are free to grow whatever trees, flowers, shrubs,
grasses, fruits and berries they desire. There is, however, one thing
forbidden:

Vegetables.

In Miami
Shores, maintaining a vegetable garden in your own front yard is illegal and
punishable by fines of $50 per day. But Americans have been growing vegetables
on their property since precolonial times. This appeal seeks to vindicate the
constitutional rights of Floridians to continue to do so today.

Appellants,
Hermine Ricketts and Tom Carroll (“Hermine and Tom”), a married Miami Shores
couple in their 60s, designed and maintained a vegetable garden, peacefully and
without incident, in the front yard of their modest Miami Shores home for over
17 years. After nearly two decades without a complaint (but quite a few
compliments), they were abruptly ordered to stop. Facing the threat of fines of
$50 per day, Hermine and Tom destroyed their beloved garden and, along with it,
uprooted a significant source of both material sustenance and personal joy.
Today, where flowers and colorful plants once abounded, there sits a decidedly
less vibrant (but fully compliant) patch of land. All of this, according to
Miami Shores, in the name of aesthetics.

Hermine
and Tom desire to once again grow vegetables for their own consumption,
methodically and attractively as before, in their own front yard. But the
ordinance at issue in this case prohibits this historically recognized,
productive use of property. And despite Miami Shores’ purported interest in
promoting aesthetics, the ordinance bans only vegetable gardens — thus
allowing virtually any other type of landscape, regardless of how it looks. As
a result, Hermine and Tom filed this lawsuit, challenging the ban on front-yard
vegetable gardens as a violation of the Florida Constitution’s Due Process and
Equal Protection Clauses.

* * * *

Hermine
and Tom also challenged the ban on front-yard vegetable gardens as a violation
of two of their fundamental rights under the Florida Constitution — the right
to acquire, possess and protect property and the right of privacy.1

Though these claims seem compelling,
the trial court’s well-reasoned, ten-page final order rejecting the appellants’
claims correctly acknowledged the difficult procedural posture confronting the
appellants and dutifully applied controlling precedent. We affirm that final
order in all respects.2

Procedural Posture — Facial vs. “As-Applied” Constitutional
Claims

The appellants’ circuit court
lawsuit attacking the constitutionality of the applicable zoning ordinance
followed an earlier, unsuccessful administrative proceeding in which the
appellants contested a notice of violation pertaining to their front-yard
vegetable garden. That notice (which followed a written courtesy notice issued
four weeks earlier requesting removal of the vegetable garden from the front
yard) was issued by a code inspector with the Village’s code enforcement
department.

The appellants ultimately appeared
at two hearings before the code enforcement board, presenting testimony and
evidence regarding their objections. The objections did not include
constitutional challenges. The Village code enforcement board issued a written
notice of disposition sustaining the violation, authorizing a fine of $50.00
per day for non-compliance, allowing another month within which the appellants
could comply, and notifying them of their rights to appeal the ruling to the
circuit court.

The appellants then appealed to the
appellate division of the circuit court. Subsequently, the appellants removed
the vegetable garden and voluntarily dismissed their appeal. The Village did
not impose any fines regarding the violation.

Less than a month after the circuit
court’s dismissal of that case, however, the appellants (then represented by
their current counsel rather than pro se) filed a new circuit court lawsuit
seeking declaratory and injunctive relief challenging the constitutionality of
the design standard in section 536(e) of the Village’s zoning code, “Vegetable
gardens are permitted in rear yards only.”3

The significance of the earlier
proceeding is that, for purposes of judicial review by this Court in the
present case, that first proceeding conclusively determined that a violation
occurred based on the evidentiary record presented to the Village’s code enforcement
board. Any attempt to present an “as-applied” constitutional challenge to the
statute, as opposed to a “facial” constitutional challenge, is barred as a
matter of res judicata and waiver. Kirby v. City of Archer, 790 So. 2d
1214 (Fla. 1st DCA 2001); Charles v. Citizens Prop. Ins. Corp., 199 So.
3d 495 (Fla. 3d DCA 2016) (res judicata applies even to those matters which
were not, but could properly have been, raised in a prior action between the
parties); Holiday Isle Resort &Marina Ass’n v. Monroe County, 582
So. 2d 721 (Fla. 3d DCA 1991) (constitutional claims may be raised in an appeal
to a circuit court from a final order of a code enforcement board).4

A facial challenge to legislation,
as in the case of the ordinance and this second proceeding, “is more difficult
than an ‘as applied’ challenge because the challenger must establish that no
set of circumstances exists under which the statute would be valid.” Cashatt
v. State
, 873 So. 2d 430, 434 (Fla. 1st DCA 2004); Ogborn v. Zingale,
988 So. 2d 56 (Fla. 3d DCA 2008).

Recognizing that more difficult
hurdle facing the appellants in this second proceeding — attacking the statute
on the grounds that it cannot be validly enforced under any set of
circumstances — we turn next to the level of constitutional scrutiny. The
appellants claim that the ordinance must survive the more stringent test,
“strict scrutiny,” rather than the less stringent “rational basis” level of
scrutiny.

Rational Basis versus Strict
Scrutiny

The trial court correctly determined
that the ordinance did not infringe upon the appellants’ fundamental rights and
that strict scrutiny is not required. The appellants first posit a fundamental
right to use their front yard to grow food for their own consumption, based on
article I, section 2 of the Florida Constitution’s Declaration of Rights (the
right “to acquire, possess and protect property”), based on such cases as Shriners
Hospitals for Crippled Children v. Zrillic
, 563 So. 2d 64, 67 (Fla. 1990)
(right to devise one’s own property is a right protected by article I, section
2).

The Florida Supreme Court said more
in Zrillic, however — “even constitutionally protected property rights
are not absolute, and ‘are held subject to the fair exercise of the power
inherent in the State to promote the general welfare of the people through
regulations that are necessary to secure the health, safety, good order, [and]
general welfare.’ ” Id. at 68 (quoting Golden v. McCarty, 337 So.
2d 388, 390 (Fla. 1976)). And the ordinance challenged below and here only
prohibits vegetable gardens in a front yard, not anywhere or everywhere on a
residential lot.5

The appellants’ second claim that
the ordinance violates a fundamental right and should thus be subjected to
strict scrutiny also fails. Article I, section 23, of the Florida Constitution
provides a right of privacy (“to be let alone and free from governmental
intrusion into the person’s private life”), and it was relied upon by the
Florida Supreme Court in one case involving a “choice concerning food,” as the
appellants suggest. In that case, In re Browning, 568 So. 2d 4 (Fla.
1990), the issue presented was the withdrawal of nutrition from an 86-year-old,
incompetent, incurably ill person in accordance with a previously-signed living
will.

The patient’s right of
self-determination under consideration in In re Browning is not akin to
the “choices concerning food” sought to be invoked as a fundamental right by
the appellants in this case. It takes a leap of the imagination to suggest that
the right of privacy applies to all choices concerning food. Zoning and design
ordinances prohibiting chicken coops or turkeys in the front yard may relate to
sustenance and food choices, but no Florida case suggests that such a
prohibition runs afoul of the right of privacy.

Rational Basis

Having correctly determined that
strict scrutiny was not warranted, the trial court considered the
constitutionality of the ordinance under the rational basis level of scrutiny.
The trial court correctly applied this Court’s decisions in Membreno &
Florida Ass’n of Vendors, Inc. v. City of Hialeah
, 188 So. 3d 13 (Fla. 3d
DCA 2016), and Kuvin v. City of Coral Gables, 62 So. 3d 625 (Fla. 3d DCA
2010).

In Membreno, we detailed the
heavy burden borne by a party challenging the constitutionality of a
legislative enactment under the rational basis test:

· “[T]he
burden is on the one attacking the legislative enactment to negate every
conceivable basis which might support it.” Id. at 20 (quoting Haire
v. Fla. Dept. of Agric. & Consumer Servs.
, 870 So. 2d 774, 782 (Fla.
2004)).

· The
“deferential standard” applicable to rational basis scrutiny requires the
reviewing court to uphold the enactment if it is “fairly debatable” whether the
purpose of the law is legitimate and whether the methods adopted in the law
serve that legitimate purpose. Id. at 25.

· Under
this test, a legislative choice is not subject to courtroom fact-finding,
because such laws “ ‘may be based on rational speculation unsupported by
evidence or empirical data.’ ” Id. at 26 (quoting City of Fort
Lauderdale v. Gonzalez
, 134 So. 3d 1119, 1121 (Fla. 4th DCA 2014)).

· A
legislative enactment can pass the rational basis test even if purely
experimental. Id. at 28.

· The
Constitution does not prohibit a legislature from passing a law striking a
judge as unwise or unfair. Id. at 29.

Applying these principles, grounded
in the core concept of separation of powers between the judicial branch and the
political branches, to the present case, the ordinance is rationally related to
the Village code’s design standards and landscaping regulations. The preamble
to the pertinent section of the code states that the purposes of the design and
landscaping provisions include the “protection and promotion of the . . .
appearance . . . of the village,” the protection of “the distinctive character
of Miami Shores Village that has resulted from . . . [t]he application and
careful administration of protective regulations,” and the protection of
“property values and the enjoyment of property rights by minimizing and
reducing conflicts among various land uses . . . .” Village of Miami Shores, Fla.,
Code of Ordinances § 100.

It is at least fairly debatable that
a vegetable garden occupying most of the appellants’ front yard and including,
according to the appellants’ complaint, some 75 different varieties of
vegetables, could signify a conflict between the Village’s decorative standards
for front yards (green space planted with grass, sod, low growing plants, and a
minimum of two trees) and an agricultural use based on the cultivation of
vegetables for consumption. The appellants assert, however, that the Village’s
ban on front yard vegetable gardens is based on ambiguous and undefined
“aesthetic” requirements, “inviting arbitrary and subjective enforcement.”

This Court addressed the relevance
and validity of zoning regulations based on aesthetics in Kuvin, 62 So.
3d at 634-35. We cited with approval numerous Florida cases in which zoning
regulations based on aesthetics have been upheld as preserving the residential
look and feel of a community.

Finally, the trial court
conscientiously surveyed four dictionary definitions of each of the terms
“vegetable” and “garden,” concluding that the plain meaning of these words when
used together connotes the cultivation of plants to be eaten as part of a meal,
as opposed to the cultivation of plants for ornamental reasons, i.e.,
aesthetics. We agree.

Conclusion

Following the ineluctable conclusion
that the Village ordinance does not restrict a fundamental right or suspect
class, Membreno and Kuvin control the analysis in this case. The
ordinance is constitutional. We agree with the trial court’s parting
observation that the appellants “still have a remedy. They can petition the
Village Council to change the ordinance. They can also support candidates for
Council who agree with their view that the ordinance should be repealed.”6

Affirmed.

__________________

1The
appellants have been ably represented in the trial court and here by the Miami
and Bellevue, Washington, offices of the Institute for Justice, a national
non-profit which “litigates to limit the size and scope of government power and
to ensure that all Americans have the right to control their own destinies as
free and responsible members of society.” http://ij.org/about-us/ (site last
visited October 3, 2017).

2The
appellants also challenge the trial court’s order sustaining the Village’s
objections to certain pretrial discovery requests (including, for example,
requests for information and documents regarding the Village Council’s reasons
for, and any investigation of, the ordinance amendment in question). We reject
the appellants’ arguments on this point. Rainbow Lighting, Inc. v. Chiles,
707 So. 2d 939 (Fla. 3d DCA 1998) (City commissioners’ motives in adopting
ordinances are not subject to judicial scrutiny).

3Before an
amendment in 2013, the design standard stated “Vegetable gardens are permitted
in rear yards.” The amendment added the word “only.”

4A facial
challenge to the ordinance is not barred by the prior issues and determinations
in the parties’ code enforcement case because the requisite identity of causes
of action necessary to invoke res judicata is absent. Wilson v. County of
Orange
, 881 So. 2d 625 (Fla. 5th DCA 2004); see also City of Ft.
Lauderdale v. Scott
, 773 F. Supp. 2d 1355 (S.D. Fla. 2011).

5The
appellants complain that they cannot cultivate a vegetable garden in their
backyard because of the shade from overhanging trees and because of their
backyard swimming pool. These are particular circumstances that may reflect
personal choices, vary from resident to resident, and are inappropriate
considerations when the facial challenge claims invalidity as to all residents
and all residential lots.

6Such a
result actually occurred in the aftermath of Kuvin. Coral Gables’ ban on
private (non-commercial) pickup trucks in front of a home was liberally amended
by City voters following a November 2012 referendum on the issue.
http://www.coralgables.com/index.aspx?recordid=672&page=30 (City Code
Enforcement Release posted November 6, 2012; site last visited October 3,
2017).

* * *

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