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11/23/93 CHARLES MOORMAN and v. DEPARTMENT OF COMMUNITY
[1] COURT OF APPEAL OF FLORIDA, THIRD DISTRICT
[2] CHARLES MOORMAN and KATHLEEN MOORMAN; YOUR LOCAL FENCE, and
[3] MONROE COUNTY, Appellants, v.
[4] DEPARTMENT OF COMMUNITY AFFAIRS, Appellee.
[5] No. 92-1785 [6] 626 So. 2d 1108, 18 Fla. Law W. D 2484 BLUE BOOK CITATION FORM: 1993.FL.2475 (http://www.versuslaw.com)
[7] Date Filed: November 23, 1993
[8] An Appeal from the Florida Land and Water Adjudicatory Commission.
[9] APPELLATE PANEL: [10] Before SCHWARTZ, C.J., and BASKIN, and GERSTEN, JJ. [11] DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE GERSTEN Each property owner testified why they desired to fence their property.
[20] Appellants assert that the blanket prohibition on fences contained in section 9.5-309(e), MCLDR, is unconstitutional as an invalid exercise of police power.
[21] The resolution of this issue requires us to seek a harmonious balance between the constitutional right to protect and develop one's property and the right of the Key Deer to exist unfettered. In deciding this issue, we must review the statutory and regulatory framework.
[30] Statutes relating to environmental land and water management require a balancing of the state's interests in protecting the public's health, safety, and welfare against the constitutionally protected private property interests of the landowner. Graham v. Estuary Properties, Inc., 399 So.2d 1374, 1377 (Fla.), cert. denied, 454 U.S. 1083, 102 S. Ct. 640, 70 L. Ed. 2d 618 (1981). The "exercise of the state's police power must relate to the health, safety, and welfare of the public and may not be arbitrarily and capriciously applied." Id. at 1379.
[32] "Reasonable restrictions upon the use of property in the interest of the public health, welfare, morals, and safety are valid exercises of the state's police power." Sarasota County v. Barg, 302 So.2d 737, 741 (Fla. 1974). However, "when a particular attempted exercise of the police power by a state, or under its authority, passes the bounds of reason and assumes the character of a merely arbitrary fiat, it will be stricken down and declared void." Carroll v. State, 361 So.2d 144, 146 (Fla. 1978).
[36] Thus, the complete ban on all fences in Big Pine Key does not accomplish either of the two goals of the legislation: …2) the fence ban does not recognize the individual's right to protect, enjoy and use one's property. Therefore, the fence regulation clashes with Florida's constitution.
[38] Accordingly, we hold section 9.5-309(e), MCLDR, is facially unconstitutional because the method chosen by the legislature is not narrowly tailored to achieve the state's objective of protecting the Key Deer. See In re Forfeiture of 1969 Piper Navajo, 592 So.2d at 235. This is particularly so because property rights are protected by numerous provisions in the Florida Constitution.
[39] Article I, section 2 provides that "all natural persons are equal before the law and have inalienable rights, among which are the right. . . to acquire, possess and protect property. . . ." Article I, section 9 provides that "no person shall be deprived of life, liberty or property without due process of law. . . ." Article I, section 23 provides that "every natural person has the right to be let alone and free from governmental intrusion into his private life. . . ."
[40] "These property rights are woven into the fabric of Florida history." Shriners Hospitals for Crippled Children v. Zrillic, 563 So.2d 64, 67 (Fla. 1990). So long as the public welfare is protected, every person in Florida enjoys the right to possess property free from unreasonable government interference. Id.
[42] Accordingly, we reverse the order entered below because section 9.5-309(e), MCLDR, is unconstitutional. [43] BASKIN and GERSTEN, JJ., concur. IN AGREEMENT [44] Baskin, Judge (concurring). [45] The statute is unconstitutional where, as here, the restriction constitutes unreasonable government interference in appellants' constitutionally protected property rights. See Shriners Hosps. for Crippled Children v. Zrillic, 563 So.2d 64, 68 (Fla. 1990); Art. I, § 2, Fla. Const. For these reasons, I concur in the majority opinion.
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