Hav-A-Tampa Cigar Co. v. Johnson , 149 Fla. 148 ( 1941 )

Undoubtedly the rights of private property, which are guaranteed by our Bill of Rights, can be restricted, and in some cases entirely taken away, in the proper exercise of the police power for the purpose of the necessary protection of the health, morals, safety, and general welfare of the public. But any proposed new restriction or invasion of existing private property rights, in the name of the police power, should be carefully scrutinized, and should not be allowed unless the common good of the public is so much at stake as to justify the restriction.

As I view it, we cannot hold valid under the Constitution all of the provisions of Section 9 of Chapter 20446 upon the ground of public safety, Sub-paragraphs (b), (c) and (d) of Section 9, when construed in connection with the first clause in Section 9 and the first twelve words of sub-paragraph (a), and the clause therein referring to intersections do affect the public safety. When so read, Section 9 provides that no advertisement, advertising sign or advertising structure shall be constructed, used, operated or maintained within fifteen feet of the outside boundary of a public highway, or within one hundred feet of any highway or railroad intersection outside the limits of incorporated cities or towns, which involve motion or rotation of any part of the structure or displays intermittent lights, or which uses the word "stop" or "danger," or presents or implies the need or requirement of stopping or the existence of danger, or which is a copy or imitation of official signs, or which are placed on the inside of a curve, or in any manner that may prevent persons using the highway from obtaining an unobstructed view of approaching vehicles. I think that signs so placed and of the character described, do affect the safety of travelers using our public highways, and are valid. But, as I see it, to so construe the first clause and paragraph "(a)" of Section 9 of the Act as to absolutely prohibit, on the ground of public safety, the construction or maintenance of any advertising sign or advertising structure of any sort on private property within fifteen feet of the outside boundary of the right of way of any public highway, beyond City limits, is to base the Act upon a ground which has such a slight relation, if any, to the safety of automobilists or other persons using the highways as not to justify this invasion of the rights of private property upon the ground that it is a necessary exercise of the police power in order to protect the public safety.

Furthermore, this provision of Section 9 prohibiting all signs within fifteen feet of the outside boundaries of any public highway results in great inequality on account of the fact, of which the court may take judicial knowledge, that we have public highways in this State whose rights of way vary from thirty feet to two hundred feet or more in width. If this Section is to be upheld upon the ground of safety of the public, it would seem that it should have prohibited all sign boards within a designated number of feet from the center of the highway, regardless of the width of the right of way.

I take it that the State Road Department has the power to and can prevent the erection of or can remove any sign board within the boundaries of the rights of way of public roads without the aid of this statute. But Section 9 proposes to go fifteen feet beyond the outside boundaries of rights of way regardless of the width of the rights of way, and I think the Court can take judicial knowledge of the fact that it would be only in very rare instances that signs outside rights of way which are 100 to 200 feet or more in width would have an appreciable effect whatsoever upon the safety of the use of the highways; although sign boards erected fifteen feet outside a narrow right of way, especially on curves, might interfere with a motorist's view of the road ahead, and thus would affect the public safety.

It would seem also that the public safety could be conserved, and at the same time public convenience promoted, by allowing a limited number of small un-obtrusive signs, located within easy sight of the highway, giving the traveling public information as to the distance to the next motor court, inn or hotel. It frequently occurs that information of this kind, in spite of its advertising character, is of real value to many of the tourists who travel our highways during the winter season. This thought is suggested by a brief which has been filed in this case with the permission of the court by Messrs. Worth, Bivens Lively as amicus curiae.

Having reached the conclusion in my own mind that this Act as written, and particularly Section 9 thereof, cannot be upheld in its regulation with reference to sign boards located on private property within fifteen feet of the outside boundary of all rights of way, regardless of width, upon the ground of public safety, the question arises: Can the Act be upheld upon the ground that the Legislature has the right to protect the traveling public from artificial obstructions to the view of the scenic beauties of Florida, which otherwise might be seen and enjoyed, not only by tourists visiting our State, but also by our own citizens, where such obstructions are not an absolute necessity and are erected for business reasons, such as the signs and sign boards dealt with in this Act? I strongly suspect that, although no mention is made of it in the Act, this was one of the main purposes of this statute. Various regulations of outdoor advertising, such as sign boards along the highways, have been upheld upon the somewhat tenuous ground that they affected in some way the public health, morals or safety, when as a matter of fact I believe that in most cases the purpose behind the statute was mainly the protection of what might be called the right of view of the natural beauty of the surrounding country. This undoubtedly means a great deal to the majority of people who are travelling our highways as sight-seers from other states, as well as to the citizens of our own State who enjoy the opportunity to view the scenery, which ought to be permitted to them, as a general rule, when travelling along the highways of Florida. Of course there would be some necessary exceptions to this general rule.

I think the time has come to make a candid avowal of the right of the legislature to adopt appropriate legislation based upon these so called aesthetic, but really very practical, grounds. We have recognized to some extent in our own decisions the principles just above alluded to in passing upon the validity of municipal zoning regulations. A statute based upon this principle would not necessarily amount to an absolute prohibition of all advertising sign boards.

The location, size and character of the sign should be taken into consideration. As is stated in a brief filed in this case by Mr. Julius F. Stone, Jr., as amicus curiae: "Relief of the eye from irritating color, movement and motif should be as justified before the law as removing disagreeable odors from the nose or disagreeable noises from the ear."

The aesthetic aspect of the question before us is also referred to in the brief filed by Hon. George Couper Gibbs as amicus curiae, who cites General Outdoor Advertising Co. v. Dept. of Public Works, 289 Mass. 149, N.W. 825.

We might observe that the word aesthetic means, inter alia, "pertaining to the beautiful." I realize that if we were to recognize these aesthetic reasons for upholding a statute designed to protect this opportunity for the view of scenic beauty by the travelling public, we might have to overrule, distinguish or modify the principle which has long been recognized by this Court in dealing with the validity of municipal ordinances, and which was first enunciated with reference to the validity of an ordinance regulating billboards, in the case of Anderson v. Shackleford, 74 Fla. 36,76 So. 343. That case involved an ordinance of the City of Lake City, and that part of the opinion relating to this subject, reads as follows.

"In so far as the city undertakes to regulate the erection or construction of billboards that might be dangerous to the public by falling or being blown down, or constructed of such material and in such manner as to endanger the life or property, or to increase the danger of loss by fire, or to have printed or displayed upon them obscene characters and words tending to injure and offend public morals, it has the power; but no attempt to exercise the power of depriving one ofthe legitimate use of his property merely because such useoffends the aesthetic or refined taste of other persons isquite another thing and cannot be exercised under theConstitution forbidding the taking of property for a public usewithout compensation. See Crawford v. City of Topeka,51 Kan. 765, 33 Pac. Rep. 476, 20 L.R.A. 692."

Until the holding of this Court on this subject in the case just quoted from, is overruled, it might be contended that we could not consistently uphold this statute upon aesthetic grounds. While this writer is of the opinion that the last clause of the holding above quoted in Anderson v. Shackleford, should be overruled, if necessary to do so here, and if this were done, I think that the parts of this statute here attacked could be upheld, there is a distinction between this case and Anderson v. Shackleford. In the latter case we were dealing with the delegated legislative power of a municipality, while here we are dealing with the much broader legislative power of the legislature of a sovereign State. The Lake City case might further be distinguished by reason of the peculiar facts of that case.

The National and State Governments have spent millions of dollars in establishing public parks, one of the chief purposes of which was to preserve to the people an opportunity to enjoy the natural beauties and inspiring scenic effects of certain selected areas of this land of ours.

In one of the briefs it is stated, and I think correctly, that Massachusetts amended its constitution in 1918 so as to provide that advertising on private property in public view might be regulated by law, and thereupon upon passed a statute giving the State power to regulate or prohibit advertising signs within 300 feet of parks and places of unusual scenic beauty, giving the State authorities power to pass upon the subject matter, size, shape and material of the signs. Arkansas declared by statute in 1925 that: "It is recognized and hereby declared that beauty or surroundings constitutes a valuable property right which should be protected by law." Many of the countries of Europe have long recognized the necessity of measures for the preservation of existing beauties, whether displayed to the eye as objects of art or as natural landscapes.

A statute based upon the principles just discussed would not necessarily outlaw the erection of signs on private property which would not interfere with this opportunity for the view of the natural scenery from the roadway. The statute here under review, or that part of it here under attack, could be upheld by applying the principles just above discussed.

I am therefore of the opinion that in so far as Section 9 prevents the erection or maintainance of all advertising signs within fifteen feet of the outside boundary of the rights of way of all public highways, regardless of the width of such rights of way, or the nature or size of the signs, in so far as public safety is concerned it is in derogation of the rights of private property as guaranteed by our Bill of Rights, and cannot be upheld upon the ground of protecting the public safety; but I think it could be upheld upon aesthetic grounds as hereinabove outlined. I am further of the opinion that if there is any conflict here with the holding in the above quoted case, that in so far as that case conflicts with the views hereinabove expressed, it should be overruled.

For these reasons I agree to the conclusion reached by Mr. Justice Whitfield, and the consequent judgment of affirmance.

THOMAS, J., concurs.