       Third District Court of Appeal
                                 State of Florida

                          Opinion filed November 1, 2017.
          Not final until disposition of timely filed motion for rehearing.

                                 ________________

                                 No. 3D16-2212
                           Lower Tribunal No. 13-36012
                               ________________


                 Hermine Ricketts and Laurence Carroll,
                                     Appellants,

                                          vs.

                  Village of Miami Shores, Florida, et al.,
                                      Appellees.


      An Appeal from the Circuit Court for Miami-Dade County, Monica Gordo,
Judge.

      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.

                                ****


                                   2
            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


1  The 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).
2  The 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).
                                          3
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



3 Before an amendment in 2013, the design standard stated “Vegetable gardens are
permitted in rear yards.” The amendment added the word “only.”
                                          4
      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).


4   A 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).
                                         5
      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


                                         6
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



5  The 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.
                                          7
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




                                           8
      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


                                         9
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


                                        10
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.




6 Such 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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