IN THE SUPREME COURT OF FLORIDA TALLAHASSEE, FLORIDA

Transcription

1 LOWELL JOSEPH KUVIN, -vs- Petitioner, CITY OF CORAL GABLES, Respondent. / IN THE SUPREME COURT OF FLORIDA TALLAHASSEE, FLORIDA CASE NO. SC BRIEF OF PETITIONER ON JURISDICTION On Appeal from the Third District Court of Appeal of the State of Florida LEOPOLD~KUVIN, P.A PGA Blvd., Ste. 200 Palm Beach Gardens, FL and LAW OFFICE OF LOWELL J. KUVIN 17 East Flagler St., Ste. 223 Miami, FL and BURLINGTON & ROCKENBACH, P.A. Courthouse Commons/Suite West Railroad Avenue West Palm Beach, FL (561) (561) (fax) Attorneys for Petitioner aah@flappellatelaw.com

2 TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES iii STATEMENT OF THE CASE AND FACTS 1-4 SUMMARY OF ARGUMENT 4-5 ARGUMENT 5-10 THE THIRD DISTRICT S DECISION EXPRESSLY AND DIRECTLY CONFLICTS WITH A DECISION FROM ANOTHER DISTRICT COURT OF APPEAL. CONCLUSION 10 CERTIFICATE OF SERVICE 11 CERTIFICATE OF TYPE SIZE & STYLE 12 ii

3 TABLE OF AUTHORITIES PAGE CASES Aravena v. Miami-Dade County, 928 So.2d 1163, (Fla. 2006) 7 City of Coral Gables v. Wood, 305 So.2d 261 (Fla. 3d DCA 1974) 8, 9 City of Nichols Hills v. Richardson, 939 P.2d 17 (Okla. Crim. App. 1997) 3, 7 Henley v. City of Cape Coral, 292 So.2d 410 (Fla. 2d DCA 1974) 5, 6 Kuvin v. City of Coral Gables, 2007 WL (Fla. 3d DCA Aug. 22, 2007) 2 Kuvin v. City of Coral Gables, 45 So.3d 859 (Fla. 3d DCA 2010) 1, 2, 3, 4, 6, 9, 11 Proctor v. City of Coral Springs, 396 So.2d 771 (Fla. 4th DCA 1981) 3, 4, 5, 6, 7, 8, 10 OTHER AUTHORITIES Art. V., (b)(3), Fla. Const. 1 iii

4 STATEMENT OF THE CASE AND FACTS This case comes to this Court following the first appellate decision in this State, in a 6-2 en banc decision by the Third District Court of Appeal, and apparently the first reported decision in this country, upholding a local ordinance prohibiting residents (and visitors) from parking their personal-use trucks in (a) their driveway; (b) in front of their residences, or (c) in front of any public places, from 7:00 p.m.-7:00 a.m. This Ordinance encompassed Petitioner Lowell Kuvin s personal-use pick-up truck, but also includes, inter alia, SUV s and minivans. Petitioner argues that this Court has discretionary jurisdiction to review the decision, as it expressly and directly conflicts with a decision of another District Court of Appeal on the same question of law. See Art. V., (b)(3), Fla. Const. Section 8-11 of the City of Coral Gables' Zoning Code provides, in part: (a) It shall be unlawful for any person to park any vehicle displaying advertising signs or any truck, trailer, commercial vehicle, or recreational vehicle, in or upon any property, public or private, in any area of the city which is zoned residential. Section 8-12 of the Coral Gables Zoning Code provides: Except as provided for herein no trucks, trailers, commercial vehicles, or recreational vehicles, shall be parked upon the streets or other public places of the City between the hours of 7:00 p.m. on one day and 7:00 a.m. of the next day. This prohibition is in addition to the total prohibition covering residential areas dealt with in Section In turn, truck is defined by the City as (emphasis added): any motor vehicle designed, used or maintained for transporting or 1

5 delivering property or material used in trade or commerce in general. Trucks shall include any motor vehicle having space designed for and capable of carrying property, cargo, or bulk material and which space is not occupied by passenger seating. Coral Gables, Fla., Zoning Code art. 8 (2010). Kuvin lived in the City of Coral Gables in a residence that did not have a garage (A1-2). Kuvin owned and drove a Ford F-150 pickup truck, for personaluse only (A2; 17; 25). Thus, to comply with the Ordinance, Kuvin was required to either: (a) move to another jurisdiction; (b) move to a residence with an enclosed garage; or (c) relinquish ownership of his personal-use pick-up truck. The City cited Kuvin for parking his vehicle outside his residence (A2; 6-7). The City found Kuvin guilty and fined him, plus fees and court costs (A2). Kuvin then filed a complaint in circuit court, and sought a declaration that the above ordinances were unconstitutional (A2). Kuvin moved for summary judgment, asserting, inter alia, the ordinances violated his right of freedom of association, were unconstitutionally vague, arbitrary, capricious, and selectively enforced as applied to pickup trucks (A3). The City filed a cross-motion for summary judgment. The trial court granted the City s Motion, and entered a final judgment to the City (A3). A 2-1 decision by the Third District struck down the City s Ordinances. See Kuvin v. City of Coral Gables, 2007 WL (Fla. 3d DCA Aug. 22, 2007). The City sought rehearing en banc, and after three years of debate, a 6-2 en 2

6 banc decision reversed the decision, and upheld the Ordinances (A1-50). Applying a rational-basis test, the majority reasoned the ordinances were shown to bear a rational relationship to a legitimate public purpose (A10-11). The majority accepted the City s argument that the ordinance seeks to preserve (and furthered) the integrity of the residential areas and the unique aesthetic qualities of the City (A14). The majority opinion, however, does not cite to any record evidence explaining or showing how these ordinances furthered this goal. The majority disagreed with the dissenting opinion s contention that the instant case expressly and directly conflicts with Proctor v. City of Coral Springs, 396 So.2d 771 (Fla. 4th DCA 1981) (A20-25). The majority reasoned that because a municipality can enact an ordinance banning commercial trucks from being parked overnight in residential driveways, it must be constitutional for the City to restrict Kuvin s pick-up truck that was commercial-looking (A17-18). The majority also held that an Oklahoma decision--that expressed agreement with Proctor-- conflicts with established Florida law (A27, citing City of Nichols Hills v. Richardson, 939 P.2d 17 (Okla. Crim. App. 1997)). The dissent, besides believing there was conflict with Proctor, reasoned that Richardson is a red cow case (A41-42; 47-48). The dissent noted the City of Coral Gables definition of truck was so broad that it encompasses every single SUV, station wagon, and vehicle with a cargo space, no matter how small.... 3

7 Even a car or minivan that has a folding rear seat row becomes a truck under such a broad and arcane definition (A39-40). The dissent also noted that the City of Coral Gables conceded it did not enforce the ordinances against SUV or station wagon owners, and this selective enforcement highlights the not-so-subtle elitism underlying the ordinances and their enforcement (A39, n.2). On the same day of the 6-2 en banc decision, the original panel released its own 2-1 decision, denying rehearing, but certifying a question of great public importance to this Court, see Kuvin v. City of Coral Gables, 45 So.3d 859 (Fla. 3d DCA 2010). 1 Kuvin moved for rehearing requesting the Third District certify a question of great public importance to this Court. The City opposed this--though when the City moved for rehearing in 2007, it contended there was a question of great public importance. Kuvin filed a Motion for Leave to File a Reply. The majority denied the motion without comment, with the dissenting judges stating the motion was moot, because a question had already been certified to this Court. Kuvin filed a timely notice to invoke, and this jurisdictional brief follows. SUMMARY OF ARGUMENT The majority decision expressly and directly conflicts with Proctor. Kuvin can park his pick-up truck at a residence in Coral Springs, but not in Coral Gables. 1 It appears that this certification did not confer jurisdiction on this Court, because the en banc decision was issued the same day. If this Court views this differently, obviously Kuvin will proceed to the briefing stage in this Court. 4

8 The Third District s majority decision is unprecedented in scope and in its implications. The dissent accurately notes that the majority opinion embraces George Orwell s dystopia, where personal rights are subverted by the government (A48). Similarly, the dissent aptly recognizes that the City of Coral Gables enactment (and selective enforcement) of the ordinance is symbolic of elitism. This Court should intervene and invalidate these Ordinances. ARGUMENT THE THIRD DISTRICT S DECISION EXPRESSLY AND DIRECTLY CONFLICTS WITH DECISIONS FROM OTHER DISTRICT COURTS OF APPEAL. The instant case and Proctor cannot be reconciled with one another, notwithstanding the majority s strained reasoning. Additionally, the instant case conflicts with Henley v. City of Cape Coral, 292 So.2d 410 (Fla. 2d DCA 1974). In Henley, a municipal ordinance prohibited trucks from being parked overnight in all residentially-zoned areas, regardless of whether the truck was being used for commercial or personal uses. The resident challenging only brought a facial challenge to the constitutionality of this ordinance. The Second District found the ordinance to be on the whole reasonable. Id. at 411. Here, the majority believed that Henley is indistinguishable (A22). But the Second District recognized that, if confronted with an as-applied challenge, id.: We can readily imagine circumstances to which this ordinance may be unconstitutionally applied as for example to a station wagon which 5

9 gives no outward appearance of being used in business. Kuvin s personal-use pick-up truck fits within this box. This Court can accept jurisdiction based on conflict between Henley and this case. 2 Jurisdictional conflict is also clearly reflected in Proctor. An ordinance prohibited commercial vehicles from parking between 9:00 p.m.-6:00 a.m. on private property or just in front of residences (unless in a covered garage or carport). While visiting friends, Mr. Proctor parked his 3/4 ton pickup truck in his friends front yard at night, and was issued a citation. The vehicle was not used for commercial purposes and did not have commercial markings. In striking down this ordinance, the Fourth District noted that the Henley Court anticipated the exact situation and ordinance that targeted Mr. Proctor. See Proctor, 396 So.2d at 772. As the Proctor court concluded, id.: [T]he subject ordinance is unreasonable and unconstitutional as applied to pickup trucks. It restricts drivers of pickup trucks from visiting with friends or family by making it illegal to be parked in a residential driveway, or on the hosts' lawn, or in the street in front of the home after 9:00 p. m. even though the vehicle in question is not truly a commercial vehicle; i.e., without commercial markings of any nature and not used for commercial purposes. The Kuvin majority focused on the fact that Coral Springs bans commercial 2 The majority, without explanation, suggested that Kuvin did not preserve an as applied challenge. This Court is under no obligation to blindly accept that incorrect conclusion. Notably the dissenting opinion in the 2007 panel decision authored by the same judge as the en banc opinion in 2010 did not suggest Kuvin s as-applied challenge was unpreserved. 6

10 vehicles, while Coral Gables bans commercial and residential vehicles (A23-24). Yet, the Fourth District declared the ordinance unconstitutional as applied to Mr. Proctor s personal truck precisely because the ordinance prevented him from parking in residential areas. The Court did not address whether the vehicle fell within or outside the definition of commercial vehicle. See also (A46-47), illustrating the conflict. Jurisdictional conflict exists. See Aravena v. Miami-Dade County, 928 So.2d 1163, (Fla. 2006) (one test for conflict jurisdiction is whether the holdings of two cases are irreconcilable ). The City of Coral Springs aesthetic considerations were not being furthered with this restriction. The majority in this case believes that Richardson conflicts with established Florida law (A27). In that case, the appellate court invalidated an ordinance that prevented a resident from parking his pick-up truck at his residence, without any consideration to the size, weight or use of the vehicle (939 P.2d at 19): Here, as in Proctor v. City of Coral Springs, 396 So.2d 771, 774 (Fla.App.1981), nothing in the record suggests that such an allinclusive ordinance is necessary to meet the city's legitimate responsibility of protecting the public health, safety or general welfare of its citizens. Ordinance No. 700, as in City of Coral Springs, does not speak in terms of weight, width or other relevant concerns, but merely contains a blanket prohibition of all pickup trucks. Id. The Richardson Court added that the targeting of pick-up trucks belies the City's claim that it has enacted the ordinance to protect the aesthetic integrity of the community, and we find this ordinance, as written, is unreasonable and overbroad 7

11 as applied to all pickups and as applied to Appellee. Id. The majority s view here that Richardson (aligning itself with Proctor) conflicts with Florida law is an obvious sign that the instant case cannot be fairly reconciled with Proctor. Municipalities certainly can enact ordinances based on reasonable aesthetic considerations. For example, in City of Coral Gables v. Wood, 305 So.2d 261 (Fla. 3d DCA 1974), the Third District upheld an ordinance prohibiting campers, trailers, and other vehicles designed and adaptable for human habitation in public and private property. As the dissent in this case noted, however, (A43-44): In Wood, we stated: [T]he Coral Gables [Camper] ordinance is aimed at preventing unsightly appearances and diminution of property values which obtain when camper-type vehicles are parked or stored out of doors in a residential area of the community. Id. at 263. We went on to hold that the owner of the Apache camper was only restricted from indulging in a use that would impinge upon the rights of other property owners. Id. at 264. For these reasons, Wood correctly recognized that municipalities may properly regulate campers under their police powers aimed at aesthetics. The same simply cannot be said with respect to an F-150. It would be ludicrous to suggest that the parking of an F-150 in a driveway or public area of a municipality is indulging in a use that impinges upon the property rights of others. Personal-use vehicles include cars, station wagons, minivans, sportutility vehicles ( SUVs ), and light trucks. Record evidence shows that the category of light trucks may encompass pickup trucks, minivans, and SUVs, many of which are smaller in length than some full-size cars. In sharp contrast to cases involving commercial and recreational vehicles, no case has ever upheld an as-applied constitutional challenge to a regulation banning a personal-use 8

12 vehicle.... In Wood, the Third District acknowledged that an ordinance that is reasonable in some circumstances and unreasonable in others is not void in toto, but would be unenforceable when in the particular circumstances its operation would be unreasonable or oppressive. Wood, 305 So.2d at 263. This case is such an example, particularly where Kuvin does not have an enclosed garage and could not comply with the ordinance. Concluding that this ordinance does not limit Kuvin s ownership because he can reside outside the City, or live at a place within the City containing a garage, misses the point on the unreasonableness of this Ordinance. This Court Should Accept Jurisdiction of this Significant and Important Case Last week, this Court noted the significant public and media interest in this matter, and ordered the parties to file an original and eight copies of all pleadings. While this Court should not take any case because of outside interest, it is the scope of the majority s unprecedented decision that has generated so much outside attention. See, e.g., and The dissent suggested that the majority s decision embraces George Orwell s dystopia and is a reflection of elitism, showing distaste towards pick-up truck owners (A48-49) (citing to the concurring opinion written by then-judge and 9

13 now District-Court Judge Hurley, in Proctor, who stated that, [t]o ban such vehicles in the name of aesthetics smacks of the rankest form of elitism ). That viewpoint seems well-placed, since the City of Coral Gables has yet to ticket a mini-van or SUV that is encompassed within its ordinances. Of course, in another part of this diverse State, or other municipalities in this country, driving a BMW or Mercedes may be perceived as elitist--and banning those vehicles could be argued as an aesthetically-minded consideration. In Leon County, a blue vehicle with a Florida Gators sticker could be seen as aesthetically unpleasing. This Court should accept jurisdiction of this case to address the scope and reach of municipal power. Beyond vehicles used by residents and visitors alike, the Third District s decision essentially imposes no limits on the reach of a municipality enacting any ordinance for such things as aesthetic considerations or to improve property values or for the well-being of a community s traditions. This Court should accept jurisdiction of this case to address these limits, and bring clarity to all municipalities and citizens across this State. CONCLUSION It is respectfully requested that this Court accept jurisdiction to resolve the conflict between the Third District, and Second and Fourth Districts, as to whether a municipality can control which personal-use vehicles can be parked at or outside one s residence, or in parking spaces within the community. 10

14 CERTIFICATE OF SERVICE I HEREBY CERTIFY a true copy of the foregoing was furnished to ROBERT S. GLAZIER, 540 Brickell Key Dr., Ste. C-1, Miami, FL 33131, JENNIFER COHEN GLASSER, ESQ., One SE 3 rd Ave., 28 th Fl., Miami, FL 33131, and ELIZABETH M. HERNANDEZ, ESQ., 405 Biltmore Way, Coral Gables, FL 33134, by mail, on December 22, Spencer T. Kuvin, Esq. LEOPOLD~KUVIN, P.A PGA Blvd., Ste. 200 Palm Beach Gardens, FL and Lowell J. Kuvin, Esq. LAW OFFICE OF LOWELL J. KUVIN 17 East Flagler St., Ste. 223 Miami, FL and BURLINGTON & ROCKENBACH, P.A. Courthouse Commons/Suite West Railroad Avenue West Palm Beach, FL (561) (561) (fax) Attorneys for Petitioner aah@flappellatelaw.com By: ANDREW A. HARRIS Florida Bar No

15 CERTIFICATE OF TYPE SIZE & STYLE Petitioner hereby certifies that the type size and style of the Brief of Petitioner on Jurisdiction is Times New Roman 14pt. ANDREW A. HARRIS Florida Bar No