Administrative: CODE ENFORCEMENT –
Substantial, competent evidence – Although the evidence to support the
injunction could not be considered insufficient, the injunction was overbroad. Reversed. Mark
Huffsmith, et al. v. Pasco County, No. 2010-AP-000016-WS,
(Fla. 6th Cir.App.Ct. June 8, 2011).
NOT FINAL UNTIL TIME
EXPIRES FOR REHEARING AND, IF FILED, DETERMINED
IN THE CIRCUIT COURT
OF THE SIXTH JUDICIAL CIRCUIT
OF THE STATE OF FLORIDA,
IN AND FOR PASCO COUNTY
APPELLATE DIVISION
MARK HUFFSMITH,
LINDA HUFFSMITH, and
MARY ANN KARPOVICH,
Appellants,
UCN: 512010AP000016XXXXWS
v. Case No: 10-AP-000016-WS
Lower No: 10-CC-001305-WS
PASCO COUNTY,
Appellee.
______________________________/
Appeal from Pasco County Court
County
Judge Paul E. Firmani
Dennis
Wells, Esq.,
Alex
Finch, Esq.,
for Appellants
Kristi
Wooden,
Senior
Assistant County Attorney,
for Appellee
ORDER AND OPINION
Appellants
raise three issues on appeal. Appellants
first argue that the trial court’s determination that Appellants’ activities
constituted unlawful commercial activity under the Land Development Code was
not supported by substantial, competent evidence. Appellants next contend that the injunction
was overbroad. Finally, Appellants
challenge sections 106-54 and 106-57 of the Pasco County Code as
unconstitutionally vague and overbroad.
While we cannot find that the evidence to support the injunction was insufficient,
we agree that the injunction is overbroad.
Since the challenges to the Pasco County Code were never argued to the
trial court, they were not preserved for appellate review. Therefore, this Court reverses the trial
court’s injunction as set forth below.
FACTUAL
BACKGROUND
On
March 30, 2010, Pasco County sued to enjoin Appellants from using their
residential property for the restoration of cars. The complaint alleged that Appellants’
actions violated residential zoning regulations and that the activities on the
property were of such a nature and scale that they belonged in a commercial or
industrial zone. After a hearing on the
county’s motion for temporary injunction, the trial court found the activities
on the property to violate the zoning regulations. On September 20, 2010, the trial court
entered a temporary injunction enjoining Appellants from conducting auto body
restorations or repairs, mechanical repairs, auto sales, storage of the
equipment and parts associated with these activities, and allowing third
parties to engage in auto body restoration, repairs, or sales on or from the
property.
In
the temporary injunction, the trial court found that Mary Ann Karpovich owned the property at 8541 Airway Boulevard in
New Port Richey, while Mark and Linda Huffsmith
reside there. The property is zoned R-1,
but Mark Huffsmith has engaged in auto body
restoration, mechanical repairs, rebuilding cars, sanding, pressure washing
parts, and related physical rebuilding of cars.
Mark Huffsmith largely restores the cars
himself, although his brother-in-law has provided help and third parties have
occasionally painted or performed other work off the property. None of the cars restored by Mark Huffsmith are licensed or registered. They have been brought to and from the
property by car trailer, tow truck, and “rollback.”
The
property consists of a single family residence, two garages, and an airplane
hangar. Photos of the hangar taken in
May 2009 show that it was almost entirely filled with multiple cars in need of
major body and mechanical work, and heavy equipment including a forklift, a
commercial-grade paint booth, commercial-grade tools, and auto parts. Mark Huffsmith
applied for a building permit for the structure deliberately as an “airplane
hangar” rather than a garage on the advice of a realtor. He did not reveal to the county during the
permitting process that he intended to use the hangar for auto restoration. Mark Huffsmith
erected a professional-grade paint booth inside the hangar without a building
permit. He performed car restorations in
the hangar with the door raised, shut, or partially open. Due to the number of cars and equipment in
the hangar, Mark Huffsmith must move cars and
equipment onto the driveway in front of the hangar when working. Since living at the property, Mark Huffsmith has completely restored an orange 1969 Mach 1,
and almost completed a 1969 tan Dodge Charger and a purple 1970
Challenger. There are now six or seven
“carcasses” of automobiles on the property, which Mark Huffsmith
intends to completely restore on the property, in addition to the Challenger
and Charger. He stores the Mach 1 at a
warehouse, but stores six additional car “carcasses” on the property. Mark Huffsmith
built a fence around the backyard a few years ago to hide from view the car
parts and carcasses.
Mark
Huffsmith does not drive, and does not intend to
drive, any of the cars he has restored on the property because they are too
valuable. He also does not intend to
sell the vehicles, but keep them as a lifetime investment. Friends of Mark Huffsmith
sometimes come to the property to view the cars. Approximately six times, strangers have come
to the property in connection with the cars.
When
Mark Huffsmith first moved to Florida in 2001, he
restored cars at Classic Corvette in Tarpon Springs, which is a car restoration
business and museum where cars are sold.
He sold three cars through Classic Corvette. Thereafter, Mark Huffsmith
built the hangar and began restoring vehicles on his own property. Since December 2009, he has sold at least four
cars on E-Bay for his friend, who is also his accountant. These cars were stored on the property
outside the garage during the period they were for sale. Mark Huffsmith did
not own these cars. Restoration of these
cars takes Mark Huffsmith about 1,000 hours over two
years. He typically works most days of
the week and often works at night until about ten o’clock at night. Sometimes, it is dark when he is working.
A
neighbor, Anthony Augugliaro, testified that he lives
one street over from the property and passes it four or five times per
day. He has observed auto repair and
associated activities on the property for several years. Mr. Augugliaro has
complained on behalf of himself and neighbors to Pasco County about the car
restoration beginning in 2007. He
observed Mark Huffsmith pressure cleaning an engine,
tires, and rims in the driveway. Mark Huffsmith denied pressure washing an engine block in the
driveway and said only his son had pressure washed some rims one time. Mr. Augugliaro has
heard the sound of air equipment, sanders, and other heavy tools. He observed Mark Huffsmith
physically working on ten different vehicles over the past three to four years,
both in and out of the hangar, and with the hangar door open, closed, and
partially open. Flatbeds delivered
vehicles that remained parked on the property for months. Parts were stored outside the hangar. Car carriers parked in front or to the side
of the hangar. A man arrived on the
property and assisted with auto repair from 8 a.m. to 5 p.m. on Mondays to
Fridays for months at a time. Restored
cars were displayed on the front of the property, backed in with hoods raised
and no one working on them. Mark Huffsmith used a frame straightener
in front of the hangar. Mark Huffsmith or his helper pressure cleaned an engine in front
of the hangar. Mr. Augugliaro
has seen other people on the property looking at the cars, working on the cars
in the hangar, and outside on the “driveway” in front of the hangar. Mr. Augugliaro and
his neighbors are concerned about the noise, smell, potential environmental
impacts, appearance of the property, property values of the neighborhood, and
the peace.
At
the request of county code enforcement and the county attorney’s office, Mr. Augugliaro took photographs of the property over various
periods of months. These photos show
heavy equipment, both inside and outside the hangar, commercial vehicles parked
on the property, cars parked in front of the hangar with hoods up, and other
photographic evidence Mr. Augugliaro took to support
his observations of the car restoration activity taking place on the
property.
Pasco
County Zoning Administrator Debra Zampetti testified
that she is familiar with the complaints about the property, the photos, and
the neighbors’ complaints about the noise, smell, and appearance of the
property caused by the auto restoration activities. In her opinion, Mark Huffsmith’s
activities are not a customary use of property in an R-1 zoning district. The quantity of work and the presence and use
of heavy equipment make Mark Huffsmith’s car
restoration activities appropriate only in a commercial or industrial zoning
district. The activities are inappropriate
in a residential zoning district. The
restoration is a zoning violation whether or not performed for profit. Mark Huffsmith was
cited in 2007 for storing unlicensed vehicles and commercial vehicles on the
property. He was found guilty and
ordered to remove them. He complied with
that judgment. In 2008, Mark Huffsmith was again cited for storing commercial vehicles
on the property; that citation was dismissed.
Based
on her investigation, Code Compliance Supervisor Pauline Smith warned
Appellants Mark and Linda Huffsmith in May 2009 that the
auto restoration on the property constituted a zoning violation. Auto body restoration and painting,
mechanical repairs, and auto sales are not permitted activities in an R-1
zoning district and are prohibited by zoning regulations. Auto body restoration, mechanical repairs,
and auto sales, and the collateral effects of such activities are negatively
impacting the surrounding neighborhood and neighbors’ quality of life.
The
trial court found that Mark Huffsmith’s hobby had
crossed the line beyond what is acceptable or permissible pursuant to the
applicable residential zoning district.
The threatened injury to the public outweighs possible harm to
Appellants, as Mark Huffsmith claims that the car
restoration activity is not for financial gain.
Mark Huffsmith’s continued practice of
engaging in these activities constitute open, public, repeated, continuous,
persistent, and intentional violations of the Pasco County Land Development
Code. A temporary injunction will serve
the public interest. Finally, the trial
court found that temporary and permanent injunctive relief is necessary to
maintain the public health, safety, and economic welfare of adjoining
landowners.
The
injunctive order was issued September 20, 2010.
Appellant filed a timely notice of appeal on October 15, 2010.
LAW
AND ANALYSIS
Appellants
first argue that the temporary injunction was an abuse of discretion and
invalid because it was not supported by substantial, competent evidence that Appellants’
conduct violated the Pasco County Land Development Code. Unless there is a clear abuse of discretion,
a trial court's ruling on a motion for temporary injunction shall not be
overturned. Univ. Med. Clinics, Inc.
v. Quality Health Plans, Inc., 51 So. 3d 1191, 1195 (Fla. 4th DCA 2011); JonJuan Salon, Inc. v. Acosta, 922 So. 2d 1081, 1083 (Fla. 4th DCA 2006). A trial court must specify its reasons for issuing
an injunction, which must be supported by clear, definite, and unequivocally
sufficient factual findings. Fla. R. Civ. P. 1.610(c); Richard
v. Behavioral Healthcare Options, Inc., 647 So. 2d
976, 978 (Fla. 2d DCA 1994).
It
is well settled that a trial court's decision has the presumption of
correctness, and the burden is on Appellant to demonstrate error. Without a record of the lower court
proceedings, the reviewing court cannot properly resolve any underlying factual
issues so as to conclude that the trial court's judgment is not supported by
the evidence or by an alternative theory. Applegate v. Barnett Bank of Tallahassee,
377 So. 2d 1150, 1152 (Fla. 1979). Since Appellant did not provide an adequate
record to include the lower court proceedings, we cannot reverse the trial
court’s decision based on insufficient evidence. Even if Appellant were to have included the
trial court transcripts in the record, it is presumable that the trial court’s
decision would have still been affirmed given the trial court’s clear,
definite, and unequivocally sufficient factual findings and that an appellate
court cannot reweigh the evidence. We
must affirm the trial court on this issue.
Appellant
next argues that the temporary injunction is unenforceable because it is
overbroad. An injunction may not be
drawn to enjoin all conceivable breaches of the law; it must instead be
carefully tailored to remedy only the specific harms shown. Operation Rescue
v. Women's Health Center, Inc., 626 So. 2d 664, 670 (Fla.
1993). It may be no broader than is necessary to restrain the unlawful
conduct and should constitute the least intrusive remedy that will be
effective. Id. It must be
adequately particularized and phrased in such language that it can with
definiteness be complied with. Florida
Peach Orchards, Inc. v. State, 190 So. 2d 796, 798 (Fla.
1st DCA 1966). An injunctive
order must be specific in its injunction language and narrowly tailored to
avoid infringing on lawful or permitted conduct. See,
Keshbro, Inc. v. City of Miami, 801 So.
2d 864, 877 (Fla. 2001).
We
find that the temporary injunction issued in this case is overly broad because it
prohibits lawful activity specifically permitted by the Pasco County Code. In its injunctive order, the trial court
ordered Appellant to immediately cease and desist from auto body restorations
or repairs, mechanical repairs, auto sales, storage of the equipment and parts
associated with these activities, and allowing third parties to engage in auto
body restoration or repairs, mechanical repairs, or sales on or from the
property—whether or not the activities are conducted entirely to the confines
of a completely enclosed garage or hangar.
As drafted, Appellant may not even change the oil in his personal car
without violating the injunction. In
addition, section 106-57 of the Pasco County Code specifically allows the storage,
service, and repair of one disabled motor vehicle that is conducted within the
confines of a completely enclosed garage provided that the motor vehicle is the
property of the owner or occupier of the lot and not a commercial use of the
property. Consequently, the order is
overbroad and infringes upon Appellants’ constitutional rights to the use of
their property. We shall remand this
cause to the trial court for the limited purpose of more narrowly tailoring the
injunction so as not to restrain lawful conduct.
Appellants’
last argument is that sections 106-54 and 106-57 of the Pasco County Code are
unconstitutionally vague and overbroad.
This argument, however, was never raised in the trial court. As such, it is not preserved for appellate
review, and we need not address that issue.
Hunter v. State, 8 So. 3d 1052 (Fla. 2008); Steinhorst v. State, 412 So. 2d 332 (Fla. 1982).
Respectfully,
Daniel D. Diskey, Circuit Judge, Appellate Division, recuses
himself from participating in this cause.
It is therefore,
ORDERED AND ADJUDGED that the trial court’s injunction is
AFFIRMED IN PART, REVERSED IN PART, and REMANDED with directions consistent
with this opinion.
DONE
AND ORDERED in Chambers, at New Port Richey, Pasco County, Florida this 8th
day of June 2011.
Original
order entered on June 8, 2011 by Circuit Judges Stanley R. Mills and W. Lowell
Bray, Jr.