The Herald carried the 3rd DCA’s opinion in Kuvin v. Coral Gables in which our Ms. Nesmith waxed poetic over the majority opinion of Judge Schwartz and his ability to quote from rock and roll lyrics.
The interesting part of this opinion is the dissent. Written by a former denizen of our REGJB, Leslie Rothenberg shows herself to be a conservative collectivist eager to warm the government loving hearts and minds of the Roberts Supreme Court. To put it another way, Judge Rothenberg writes powerfully for the proposition that there is little the government should not be able to do to its citizens that she would not find objectionable.
The facts of the case are simple: Coral Gables had an ordinance prohibiting the overnight parking on the street of pickup trucks. One Lowell Kuvin was renting a house in Coral Gables without a garage and received a ticket. He fought the ticket and appealed a declaratory judgment upholding the constitutionality of the ordinance.
The case proceeded to the 3rd DCA where the majority found the “Orwellian” actions of the City of Coral Gables frightening.
But Orwell’s world is Rothenberg’s world:
“Florida has long recognized that local governments may legislate to protect the appearance of their communities as a legitimate exercise of their inherent police power.”
Let Rumpole interpret: A government can do what it wishes to its citizens as long as the ends justify the means, meaning so long as the means are justified as a “legitimate exercise”.
Judge Rothenberg wrote:
The ordinances do not regulate “the types of personal use vehicles its citizens drive,” they regulate where they park them at night. I also take exception to two conclusions reached in the majority opinion. The first is that because the house Kuvin was renting had no garage, he had to choose between owning and parking his truck in the City or leaving town. Kuvin was not required to make such a choice. He could have chosen to rent an abode with a garage, or could have found an alternative parking place for his truck at night.
Rumpole says: of course he could! We live in a laissez faire country don’t we?
Tra la la la la- “Muffy, cancel the lease and lease the mansion down the street please. We need a garage.”
“The City’s residents may own and drive cars, buses, trucks, and campers, big and small, within the City. They just cannot park them overnight on the street in the City’s residential neighborhoods.”
Ah, but Judge Rothenberg’s reasoning misses an equally rational point (using her logic) What if the offending resident employs a Klingon Cloaking device, and parks the car on the street but cloaks the vehicle, making it invisible to the code enforcement officers enforcing “quality of life” in the Gables? (“vee have arrived at a final solution for zeese pickup diving renters living in the motherland-Gables….may vee see your papers please?”) The Klingon Cloaking device is as likely an occurrence as the ease and desirability of owning a car in the Gables and parking it in the neighborhood next door.
Can’t you just see the residents of a Rothenberg envisioned Coral Gables where they race like vampires getting in their coffin before sunrise, to drive their trucks out of the Gables before the sun sets? Don’t we have enough greenhouse gas emissions without requiring people to drive their trucks to and from their home every sunset and sunrise?
But in a Rothenberg world, this is what governments and their enforcers do:
“Maintaining the aesthetics of the City is rationally related to the welfare of the City.”
Rumpole wonders: “Whose aesthetics? Who decides? Please define “welfare of a city” We would define it as whether the residents have enough to eat, whether their children have good schools and healthcare. The neo-cons would define it as whether the residents are obeying orders and living in conformity of what the intellectual governing elite decide is good and proper to keep them in line.
Because if the residents express too much individuality, here is what Judge Rothenberg believes could happen vis a vis pickup trucks: “On the other hand, if Kuvin only used his pickup truck for personal use, the majority would find it unconstitutional to restrict his ability to park his truck in front of his house at night with a surfboard, smelly fishing nets, or a number of other items in the open bed of his truck.”
See what can happen in Judge Rothenberg’s world where citizens can run amok without the guiding hand of big brother? “Smell fishing nets or surfboards or other items” similarly offensive. Let them carry a surfboard and the next thing you know these ruffians will be playing (gasp!) Beach Boys rock and roll from their truck's "eight- track" stereo!
Understand that the dissenting opinion is a powerful argument for collectivism and the power of Government over people. To achieve all of this Judge Rothenberg has to engage in some tricky reasoning, foremost that Pickup trucks are and always will be “ designed as commercial vehicles” and a City always has the right to regulate commercial vehicles regardless of whether some cretin uses a commercial vehicle for a private purpose.
“These ordinances make perfect sense and are rationally related to maintaining and enhancing the residential character of the City’s neighborhoods and the aesthetics of the City because any vehicle that was designed for commercial use, regardless of whether it is used for commercial purposes, looks the same and is likely to be used to store and carry bulk material exposed to public view. “
In Judge Rothenberg’s world, only a tasteless clod would subject his neighbors to the tasteless insensitivity of driving a Ford 150- “let them drive Mercedes or Porsches!” she scoffs Antoinette like.
“Judge Cortiñas in his concurring opinion refers to Kuvin’s Ford F-150 open bed pickup truck as a “mainstream” vehicle and as a “light truck.” It is unclear where the label “mainstream vehicle” originates… There is, however, no citing authority for this “mainstream” classification… The justification(s) for referring to Kuvin’s pickup truck in this manner appear(s) to come from “Edmunds,” a source of information not contained in the record, and touted as a “well-known resource for information on personal use vehicles,” a source perhaps well-known to some, but which is completely unknown to me.”
Memo to Judge Rothenberg: on the way from your gated estate ( we really have no idea about this-just a guess) to the secure confines of the 3rd DCA, take a gander outside your car window and count the pickup trucks you see, then let us know if they are “mainstream” enough for you.
As to “Edmunds”, one word “Google". How in the world does a lawyer get on the 3rd DCA unable to research and locate an Edmunds car guide?
We See this opinion as a golden goose of an opportunity for the Judge to demonstrate to the world (and those who make appointments to higher courts) her neo-con credentials and beliefs in an all powerful Government so long as that Government shares the same ideals, belief, and definitions of aesthetics and welfare.
"Individuality is fine, so long as we approve it. "
Thank goodness for Judge Schwartz. Keep fighting the good fight, but be careful of what music you listen to, as others may not approve. It might offend their notion of aesthetics.
See You In The Gables, where apparently we can park anywhere at any time, as our chosen vehicle doesn’t offend anyone. Maybe its time to get a pickup truck and offend the high society among us.