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
LINDA HUFFSMITH, and
MARY ANN KARPOVICH,
v. Case No: 10-AP-000016-WS
Lower No: 10-CC-001305-WS
Appeal from Pasco County Court
County Judge Paul E. Firmani
Dennis Wells, Esq.,
Alex Finch, Esq.,
Senior Assistant County Attorney,
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.
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.