By: Samuel Landol, Jr., Esq.

Although the following decision applies to a municipal ordinance and NOT to a private restriction in a common interest ownership community, it is worth reviewing to determine what a Florida Appellate Court deems reasonable in terms of these kinds of restrictions.

In the case of Lowell Joseph Kuvin v. City of Coral Gables, 32 Fla. L. Weekly D2009b, (Fla. 3rd DCA 2007), the dispute concerned whether or not a municipality may ban its residents from parking a "personally-used" pick-up truck on a public street or even a private driveway. In this case, the City of Coral Gables, Florida ("City") is an upscale community located adjacent to the City of Miami and home of the University of Miami. Like many other affluent cities in South Florida, the City prides itself in maintaining and enforcing rigorous restrictions on the design and construction of commercial and residential structures throughout its borders. In this particular case, it also attempted to regulate when and where pick-up trucks are allowed to park within residential portions of the City.

The two ordinances in question were Sections 8-11 and 8-12 of the City's Zoning Code. Section 8-11, reads in pertinent part that, "…It shall be unlawful for any person to park any…truck… in or upon any property, public or private, in any area of the City which is zoned residential…" (emphasis added). The exception to the above rule would be if a truck was parked within an enclosed garage. Section 8-12 reads in pertinent part that, "…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. one day and 7:00 A.M. the next day…" In other words, trucks were not allowed to park overnight in residential neighborhoods unless enclosed in a garage. Section 2-128 of the same City Zoning Code, defines a truck as, "…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..." (emphasis added).

The appellant in this case, Lowell Joseph Kuvin ("Kuvin"), lived in Coral Gables and owned a Ford F-150 pick-up truck. Although Kuvin was warned of his pick-up truck parking violation, Kuvin continued to park on the street at night because his home did not have a garage. On the evening of February 7, 2003, Kuvin was cited, and later was found guilty of violating Sections 8-11 and 8-12 of the City's Zoning Code. Kuvin challenged the validity and constitutionality of Sections 8-11 and 8-12 but lost when a cross motion for summary judgment was filed by the City and granted.

Kuvin appealed the final declaratory judgment in favor of the City of Coral Gables which upheld the validity of the ordinances making it illegal to park a truck overnight within the City, unless it could be parked in an enclosed garage. The appellate court reversed the trial court's ruling stating that the City, "…unconstitutionally crossed the line into an impermissible interference with the personal rights of its residents…" (emphasis added). The court's opinion went on to explain that the City's justification for these restrictions, an exercise of its general police powers over the safety, morals and general well being of its citizens, was improper. Kuvin's pick-up truck was a personal use vehicle and was not a commercial vehicle and therefore the City could not restrict it on the basis that it was attempting to preserve the residential character of the neighborhood. Moreover, the challenged ordinances did not distinguish between commercial vehicles and pick-up trucks; they simply banned the parking of both. The appellate court's concurring opinion highlighted the fact that the truck in question (Ford F-150) is smaller than some cars, minivans and SUVs and therefore if the City's desire was to regulate large commercial trucks it could have included specific weight and dimension limitations. In light of this, the challenged ordinances were found to be overbroad and lacking a rational relationship between the regulation and the advancement of a governmental goal that the City had a right to promote.

The appellate court felt that without a legitimate reason, there is no difference between the prohibition of a shiny new pick up truck and an old rusty sedan, other than one vehicle may be aesthetically displeasing to some, and government should not be involved in determining matters of taste. In its lengthy opinion, the appellate court cited numerous decisions which invalidated similar restrictions where government imposed restrictions on its residents without justifiable reasons. The appellate court reversed the trial court's decision with directions to enter a declaratory judgment for Kuvin and to vacate the guilty determination of the hearing officer.

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