Opinion
Nos. X-317, X-90.
June 15, 1976.
Appeal from the Circuit Court, Duval County, Charles A. Luckie, J.
Neal D. Evans, Jr., of Evans Stewart, Jacksonville, for appellants.
Donald R. Hazouri, Jacksonville, for appellee.
A broadside challenge to the constitutional application of the City's Housing Code is sought by appellants Stallings, et al. However, as the trial court so aptly found in its final judgments dismissing appellants' complaints with prejudice, three issues were presented and considered, viz:
"(1) Whether the requirement by the Jacksonville Housing Code, page 506, section 304.13, requiring the installation of screen doors is capricious and arbitrary and a violation of their police powers.
"(2) Whether the Jacksonville Housing Code, page 906, section 306.5 that requires owners of multi-unit dwellings to provide and be responsible for the extermination of insects, rodents, or other pests within the building or premises, is prejudicial or a violation of the police powers.
"(3) Whether the citations and inspection forms used by the Jacksonville Housing Authority are too vague to notify the owners of the specific alleged defects and, therefore, are a violation of due process of law."
We first consider the screen door question. Appellants Stallings and Butts own a 50-unit apartment building which, when constructed in 1967, complied with all requirements of the Florida Hotel and Restaurant Commission and the 1967 Jacksonville Housing Code. The apartment complex is located in, what was termed by one witness, a high crime area, and steel doors were installed in all exterior openings, primarily, for the security of the tenants and for minimal maintenance. In 1972, the City adopted Ordinance 72-307-158 amending the City's Housing Code. Section 906-304.13 provides:
"906-304.13 — Screens. Every door opening directly from a dwelling unit to outdoor space shall have screens and a self-closing device; and every window or other device opening to outdoor space, used or intended to be used for ventilation, shall likewise have screens. (USDs 2-5 Excepted)
"Dwelling buildings containing central heating furnaces and air-conditioning equipment for mechanically ventilating the building year around are not required to have screen or door or window openings. Window type air-conditioning units are not included in this exception. (USDs 2-5 Excepted)"
The apartment building owned by appellants Stallings and Butts did comply with the requirement that windows be screened to provide for adequate ventilation; however, screen doors were not installed as required by amended Section 304.13. The City, in carrying out the announced purpose of the subject ordinance "establishing minimum standards . . . essential to make dwellings, dwelling units . . . safe, sanitary and fit for human habitation", directed the property owners to install screen doors. Appellants strenuously objected on the grounds that such did not fall within the police power and would constitute a deprivation of property, without due process of law, by requiring a large expenditure of funds for a purpose not within the purview of public health and safety. In support of its health theory, the City adduced two outstanding authorities: Mr. Eric W. Mood, Associate Clinical Professor of Public Health, Department of Epidemiology and Public Health, Loyola University, and Dr. Lawrence E. Hinkle, Jr. (Director of the Division of Epidemiology), Professor of Medicine at Cornell University Medical College.
Professor Mood, after explaining the many diseases that may be borne by insects, testified:
". . . Screen doors are considered necessary for the health and sanitation of occupants residing in temperate, semi tropical and tropical areas, except for those dwelling units that are so far above the ground . . . if the authorities believe they are sufficient to be above the flight capabilities of those insects which the authorities think are capable of carrying diseases.
. . . . . .
"The health factors that come into play are those in which a screen acts as a barrier against the insect vector of disease, from a disease standpoint . . ."
Dr. Hinkle likewise testified:
"In my opinion, a requirement for screen doors in a community such as Jacksonville is essential to the health of the community as a whole, as well as to the health of those who may occupy dwelling units."
Dr. Hinkle further testified:
". . . But there is a reason why screen doors with adequate closures have been prescribed, and it has to do with the fact that, in a community like this, people do leave their doors open even though they have the windows open, and that is why we put the screen doors.
"Q. That may be true, but you have never seen a member of the Society Court [apartment building owned by appellants Stallings and Butts] leave their doors open?
"A. I am not here to testify about the Society Court Apartments. I am a resident of another city, and I know nothing about those things. I am testifying about the reason why we put screen doors on it. . . . .
"Q. If a unit has adequate ventilation through the windows as per our Code and as per our Code requirements, there really is no necessity for opening a door except for the purpose of getting in or out; is that not true?
"A. . . . That when children are playing in and out of doors, this is even more likely to happen. So that, regardless of what you or I or others might think is necessary for them to do, they are prone to do it, and we do put the screen doors on for the reason of preventing access of insects at this time."
Unquestionably, the testimony of the eminent epidemiologists supports a finding that the section of the Housing Code requiring screen doors is constitutionally valid insofar as it protects the health of the citizens of Jacksonville. However, the subject section, by exempting "[d]welling buildings containing central heating furnaces and air-conditioning" from the requirements imposed on non-aid-conditioned and non-centrally air-conditioned dwelling buildings, is flagrantly discriminatory.
Entrance doors to centrally air-conditioned dwellings must be opened and closed for ingress and egress the same as an entrance door to a non-centrally air-conditioned dwelling. Professor Mood was of the opinion that screen doors are necessary for the health and sanitation of occupants and that a screen door should be hung to swing outside, ". . . so that when the door is opened and mosquitoes or flies that may be resting on the door are disturbed, they will fly out into the environment rather than into the interior. . . ." Mosquitoes and flies may rest upon a steel door opening into a centrally air-conditioned dwelling just as well as a steel door opening into a non-air-conditioned or non-centrally air-conditioned dwelling.
Further, we take judicial notice that children are children. Those privileged children chilled by central air-conditioning are just as subject to leaving a door open as those less fortunate children who must endure the semitropical climate of Jacksonville with window-type air-conditioning units or without the benefit of any air-conditioning. Section 304.13 of the Jacksonville Housing Code is blatantly discriminatory and is being unconstitutionally applied.
Griffin v. Sharpe, 65 So.2d 751 (Fla. 1953); and Ellis v. Thiesen, 78 Fla. 47, 82 So. 607 (1919).
We next consider the propriety of the City imposing upon owners of multi-unit dwellings the responsibility for the extermination of insects, rodents or other pests within the building. A man's home is his castle. Unsanitary conditions constitute the banquet feast upon which insects and rodents thrive. To require the owners, by provisions of a penal ordinance, to invade the private dwelling of a tenant and be responsible for keeping the interior free of insects, etc., is clearly beyond the police power of the City. Such duty can be imposed constitutionally only upon the occupant.
Section 906.306.5 states: "Every occupant of a single dwelling building and every owner of a building containing two or more dwelling units shall be responsible for the extermination of any insects, rodents, or other pests within the building or premises."
Safer v. City of Jacksonville, 237 So.2d 8 (1 Fla.App. 1970), wherein this court held that the keeping of occupied rental units in a clean and sanitary condition could not be imposed upon the owner.
Finally, we consider the question of the sufficiency of the citations and inspection forms meeting minimal due process standards. In considering this question, the trial judge opined:
"As to the vagueness of the citation and inspection report, I must admit that I am troubled. Many items appear vague when not accompanied by `remarks'. However, there is testimony that neither the plaintiffs [appellants] nor their representative ever looked at the property with the report in hand to see if the alleged defects could be detected. Without anyone ever having looked to see if the alleged defects could be detected. [sic] Without anyone ever having looked to see if the alleged violations could be ascertained, I cannot say beyond a reasonable doubt that the allegations were vague to the extent of being unconstitutional."
No person should be required at peril of life, liberty or property to speculate as to the meaning of a penal statute. The subject notice is couched in such vague and uncertain terms that an owner's sole recourse to discover the alleged existing defects is to pursue the city inspector, either at city hall or wherever the owner may find such functionary, and inquire as to the transgressions of which the owner is accused. As yet, we have not in this jurisdiction reached the totalitarian era envisioned by Orwell's 1984. In this bicentennial year, we are well advised to revisit the principles announced in the two great historical writs.
G. Orwell, 1984 (1949).
Magna Charta or the Great Charter of King John, June 15, A.D. 1215; and the Declaration of Independence, July 4, 1776.
The judgments appealed are REVERSED.
BOYER, C.J., concurs.
SMITH, J., dissents.
In my view the exception to the screen door requirement which Jacksonville made for centrally air conditioned and heated units is based on a difference which the City's legislative authority could make without offending the equal protection clause of the Constitution. Neither can I perceive a constitutional objection to Jacksonville requiring the owner of multi-family dwelling units to deal with rodents and insects which know no subdivisions of his building. Nor do I consider that the City's use of the questioned forms for notifying landowners of claimed code violations offends due process standards.
The City's evidence showed abundantly that screen doors promote the health of dwelling occupants. That is conceded by the majority. It was demonstrated not only by the imported experts referred to in the majority opinion, but also by a Jacksonville physician who has been City Health Inspector for more than 20 years. Physicians obtained a screening ordinance in Jacksonville 60 years ago, he testified, and the incidence of typhoid fever dropped by half. The validity if not the desirability of a general screening requirement being conceded, it is not beyond reason that Jacksonville exempts dwellings which are centrally heated and air conditioned. Is there "no conceivably just basis" for a classification excepting dwellings whose doors are less likely to be left standing open because of automatically controlled temperature and humidity inside? Fronton, Inc. v. Florida State Racing Comm'n, 82 So.2d 520, 523 (Fla. 1955). I think not. The legislative authority is at liberty to strike at a public problem in its most obvious form. If the classification of those affected bears some reasonable relation to the legislative purpose, there is no denial of equal protection because the legislation is not extended to its widest possible reach.
"[T]he legislative authority, acting within its proper field, is not bound to extend its regulation to all cases which it might possibly reach. The Legislature is free to recognize degrees of harm and it may confine its restrictions to those classes of cases where the need is deemed to be clearest.' If `the law presumably hits the evil where it is most felt, it is not to be overthrown because there are other instances to which it might have been applied.'" West Coast Hotel Co. v. Parrish, 300 U.S. 379, 400, 57 S.Ct. 578, 585-86, 81 L.Ed. 703, 713 (1937). See also, as sustaining legislative distinctions based on differences in regulated classes having some substantial relation to the legislative purpose, Hunter v. Flowers, 43 So.2d 435 (Fla. 1950); Selby v. Bullock, 287 So.2d 18 (Fla. 1973); and Lasky v. State Farm Ins. Co., 296 So.2d 9 (Fla. 1974).
On evidence demonstrating beyond question that rodent and insect infestation of multi-unit buildings cannot effectively be controlled on a unit-by-unit basis, I am at a loss to appreciate how the due process clause of the Constitution prevents Jacksonville from placing the burden of that necessary health measure on the owner, whose access extends to all parts of the building. This Court did not hold in Safer v. City of Jacksonville, 237 So.2d 8 (Fla. App. 1st, 1970), as the majority declares, that "such duty can be imposed constitutionally only upon the occupant." Rather, the court merely stated, quite independently of constitutional questions, that the "purpose and intent" of the code was "to impose the responsibility for keeping premises clean and sanitary on the occupant." 237 So.2d at 14. The Court's reference there was to "tenants whose rubbish, trash, or garbage forms the basis of the complaint." The Safer opinion is no basis for asserting that rodent and insect control cannot constitutionally be required of the owner of multi-unit dwellings.
The majority have also inexplicably stricken, as offending due process considerations, the printed forms on which the City's inspectors indicated the repairs necessary to bring appellants' rental buildings into compliance with the code. The majority treats those forms as if they are indictments by which Jacksonville seeks to prosecute appellants for criminal offenses, which plainly they are not, and holds that use of the printed forms offends constitutional standards. On my part, I find notices such as "repair wall surfaces in living room, kitchen, bedroom, bedroom, bath" in a particular unit, repair "lavatory," repair "toilet," "check all gas lines and appliances because apartments have gas leaks in the kitchen," repair "roof", repair "paint", and repair "a banister" sufficiently notify appellants wherein their buildings or specified units have been found deficient. The note "foundation piers, repair," was intended by the inspector to call attention to a condition described in testimony as "defective" or "missing bricks" or "leaning" piers. A request on the form for "ceiling and wall surface repairs" seems to me to reasonably call attention to conditions described in testimony as separations between the walls and ceilings of 90 percent of the units in appellants' apartment complex, requiring "some kind of a plaster or compound to seal [the] crack, to restrict the rodents and such, and so forth, from crawling through the walls." Although the City's notices could conceivably have been made more explicit, they were adequate to inform a reasonably receptive owner wherein his buildings were found wanting.
On receipt of the notices, appellants neither inquired of the City concerning any uncertain descriptions of the shortcomings listed nor asked their rental agents to do so. The owners nevertheless testified that they were confused and left in doubt by ambiguities in the inspectors' description of defects. Thus, one of appellants professed to be confused by the inspector's directive to "check all gas lines and appliances" at specified apartments "because apartments have gas leaks in the kitchen." "Well," appellant Butts testified, "it would possibly mean that . . . the stoves or hot water heaters, either they were leaking gas, possibly in the line, or possibly the appliance itself, or I don't know whether it applies to all — I mean the apartments they have listed here, it's hard to believe that 20 apartments all have a gas leak in the kitchen. . . ." The attached forms reveal that the gas leaks were found in the kitchens at apartments 8 and 38. Butts also testified, concerning an inspector's notation to "apply treatment for insect infestation,"
"I don't know whether you are going to treat them to get them well or get rid of them."
Similarly, one of the principals of the firm engaged by appellants to "collect rents and manage" some of the apartments testified that he too was confused by the ambiguities of the notice given by the inspector:
"It's very vague information . . .
"`Door frames repair' and `door, repair.' Now the doors out there are metal and the frames are metal, so I don't understand what repairs could be made to that.
"Most of the things are very vague, as to trying to find out exactly what they have in mind. I don't know."
The rental agent did not inspect the door frames at the specified address in order to alleviate his confusion, but a contractor witness did look at the door frames and he found:
"There are steel jambs, and the lower part had spread, and, in some cases, disintegrated.
"Q. How much, could you estimate, for instance —
"A. We had several doors where I actually took a pencil and ran in the lower part, not to the top — it would go up to the bolt, probably, and you could almost run a pencil half way up.
"Q. A whole pencil or half pencil?
"A. No, sir; the full thickness of the pencil."
In my view, the trial court was at liberty to discount the confusion asserted by appellants as a result of vagueness in the inspection notices. Appellants, whose attitude toward the City's inspection system was one of undifferentiated hostility, exhibited little interest in identifying the alleged defects.
I do not find any constitutional impediment to the measures enacted by Jacksonville. I would sustain the trial court's action permitting Jacksonville to require appellants to exterminate the rodents and insects in their multi-unit projects, to put screens in the doors as they have in the windows, and to respond to the inspection notices.