Third District Court of Appeal State of Florida
Opinion filed November 13, 2024. Not final until disposition of timely filed motion for rehearing.
________________
No. 3D24-0291 Lower Tribunal No. 22-10-AP-01 ________________
City of Miami Beach, Petitioner,
vs.
Steve Kwartin, Respondent.
A Writ of Certiorari to the Circuit Court for Miami-Dade County, Appellate Division, Daryl E. Trawick, Maria de Jesus Santovenia, and Ramiro C. Areces, Judges.
Ricardo J. Dopico, City Attorney, and Freddi Mack, Senior Assistant City Attorney, for petitioner.
Steven Kwartin, P.A., and Steven Kwartin (Hollywood), in proper person.
Before LOGUE, C.J., and LINDSEY and GORDO, JJ.
LINDSEY, J. The City of Miami Beach petitions this Court for a writ of certiorari
quashing the Appellate Division’s majority opinion below, which invalidates
a portion of the City’s Noise Ordinance as unconstitutionally vague. Because
it was unnecessary to reach this constitutional issue, we grant the Petition
and quash the majority opinion.
In the summer of 2020, Respondent Steven Kwartin received two
citations for violating the City’s Noise Ordinance, section 46-152 of the Code
of the City of Miami Beach.1 Kwartin appealed to the Special Magistrate.
1 At issue is section 46-152(b), which in its entirety is as follows:
Sec. 46-152. - Noises; unnecessary and excessive prohibited.
It shall be unlawful for any person to make, continue or cause to be made or continued any unreasonably loud, excessive, unnecessary or unusual noise. The following acts, among others, are declared to be unreasonably loud, excessive, unnecessary or unusual noises in violation of this section, but this enumeration shall not be deemed to be exclusive, namely:
....
(b) Radios, televisions, phonographs, etc. The using, operating, or permitting to be played, used or operated any radio receiving set, television set, musical instrument, phonograph, or other machine or device for the producing or reproducing of sound in such manner as to disturb the peace, quiet and comfort of the neighboring inhabitants, or at any time with louder volume than is necessary for convenient hearing for the person or persons who are in or on the room, vehicle, vessel, floating structure, or chamber in which such machine or device is operated and who are voluntary listeners thereto. The operation
2 Following an administrative hearing, the Special Magistrate issued two
orders upholding the violations. Kwartin then sought review in the Eleventh
Judicial Circuit Appellate Division arguing that the entire Noise Ordinance
was unconstitutionally vague because it lacked an objective standard. More
specifically, Kwartin argued that the City’s failure “to adopt a noise ordinance
containing specific, scientifically measurable sound levels . . . prevents it
from being able to enforce the arbitrary and capricious standards contained
in the current [ordinance].”
Following oral argument below, the entire Appellate Division panel
agreed that “[n]oise ordinances do not require mathematical precision, nor
do they require a decibel reader.” Kwartin v. City of Miami Beach, 31 Fla. L.
Weekly Supp. 520, 522 (Fla. 11th Cir. Ct. Jan. 22, 2024); see also State v.
Catalano, 104 So. 3d 1069, 1076 (Fla. 2012) (“To withstand constitutional
scrutiny, however, statutes do not have to set determinate standards or
provide mathematical certainty.”).
However, a 2-1 majority invalidated the following portion of the Noise
Ordinance (in bold):
of any such set, instrument, phonograph, machine or device between the hours of 11:00 p.m. and 7:00 a.m. in such manner as to be plainly audible at a distance of 100 feet from the building, structure, vessel, floating structure, or vehicle in which it is located shall be prima facie evidence of a violation of this section.
3 The using, operating, or permitting to be played, used or operated any radio receiving set, television set, musical instrument, phonograph, or other machine or device for the producing or reproducing of sound . . . at any time with louder volume than is necessary for convenient hearing for the person or persons who are in [or on] the room, vehicle[, vessel, floating structure,] or chamber in which such machine or device is operated and who are voluntary listeners thereto.
Kwartin, 31 Fla. L. Weekly Supp. at 522 (quoting City of Miami Beach, Fla.,
Code § 46-152(b)). The City timely filed a Petition for Writ of Certiorari
seeking to quash the majority opinion.
Our review of a circuit court appellate decision on review of a final
administrative action “is limited to whether the circuit court afforded
procedural due process and whether the circuit court applied the correct law.”
Nader v. Fla. Dep’t of Highway Safety & Motor Vehicles, 87 So. 3d 712, 723
(Fla. 2012); see also Philip J. Padovano, 2 Fla. Prac., Appellate Practice §
25:12 (2024 ed.) (“The standard applicable to district court of appeal review
by certiorari of an appellate decision of the circuit court on review of final
administrative action is expressed in different terms from the standard that
generally applies to the issuance of a writ of certiorari. Once a final
administrative action has been fully reviewed by the circuit court, the role of
the district court of appeal is limited to a determination whether the circuit
court afforded procedural due process and applied the correct law.”).
4 It is firmly established that ordinances “enjoy a presumption in favor of
constitutionality.” Kuvin v. City of Coral Gables, 62 So. 3d 625, 632 (Fla. 3d
DCA 2010). Moreover, it is a settled principle of constitutional law that courts
should avoid ruling on constitutional issues “if the case in which the question
arises may be effectively disposed of on other grounds.” State v. Covington,
392 So. 2d 1321, 1322–23 (Fla. 1981) (quoting Singletary v. State, 322 So.
2d 551, 552 (Fla. 1975)).
Here, it was unnecessary to invalidate a portion of the City’s Noise
Ordinance because Kwartin’s two violations are valid pursuant to the
following language, which the entire Appellate Division panel below agreed
was constitutional:2
The following acts, among others, are declared to be unreasonably loud, excessive, unnecessary or unusual noises in violation of this section . . . :
(b) Radios, televisions, phonographs, etc. The using, operating, or permitting to be played, used or operated any radio receiving set, television set, musical instrument, phonograph, or other machine or device for the producing or reproducing of sound in such manner as to disturb the peace, quiet and comfort of the neighboring inhabitants . . . .
City of Miami Beach, Fla., Code § 46-152 (emphasis added).
2 Kwartin did not file a cross-petition challenging this unanimous holding. We therefore do not address the constitutionality of this language, especially in light of our limited scope of certiorari review.
5 There is no indication that Kwartin was cited for violating the portion of
the Noise Ordinance invalidated below, which prohibits, inter alia, listening
to music or playing a musical instrument “with louder volume than is
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Third District Court of Appeal State of Florida
Opinion filed November 13, 2024. Not final until disposition of timely filed motion for rehearing.
________________
No. 3D24-0291 Lower Tribunal No. 22-10-AP-01 ________________
City of Miami Beach, Petitioner,
vs.
Steve Kwartin, Respondent.
A Writ of Certiorari to the Circuit Court for Miami-Dade County, Appellate Division, Daryl E. Trawick, Maria de Jesus Santovenia, and Ramiro C. Areces, Judges.
Ricardo J. Dopico, City Attorney, and Freddi Mack, Senior Assistant City Attorney, for petitioner.
Steven Kwartin, P.A., and Steven Kwartin (Hollywood), in proper person.
Before LOGUE, C.J., and LINDSEY and GORDO, JJ.
LINDSEY, J. The City of Miami Beach petitions this Court for a writ of certiorari
quashing the Appellate Division’s majority opinion below, which invalidates
a portion of the City’s Noise Ordinance as unconstitutionally vague. Because
it was unnecessary to reach this constitutional issue, we grant the Petition
and quash the majority opinion.
In the summer of 2020, Respondent Steven Kwartin received two
citations for violating the City’s Noise Ordinance, section 46-152 of the Code
of the City of Miami Beach.1 Kwartin appealed to the Special Magistrate.
1 At issue is section 46-152(b), which in its entirety is as follows:
Sec. 46-152. - Noises; unnecessary and excessive prohibited.
It shall be unlawful for any person to make, continue or cause to be made or continued any unreasonably loud, excessive, unnecessary or unusual noise. The following acts, among others, are declared to be unreasonably loud, excessive, unnecessary or unusual noises in violation of this section, but this enumeration shall not be deemed to be exclusive, namely:
....
(b) Radios, televisions, phonographs, etc. The using, operating, or permitting to be played, used or operated any radio receiving set, television set, musical instrument, phonograph, or other machine or device for the producing or reproducing of sound in such manner as to disturb the peace, quiet and comfort of the neighboring inhabitants, or at any time with louder volume than is necessary for convenient hearing for the person or persons who are in or on the room, vehicle, vessel, floating structure, or chamber in which such machine or device is operated and who are voluntary listeners thereto. The operation
2 Following an administrative hearing, the Special Magistrate issued two
orders upholding the violations. Kwartin then sought review in the Eleventh
Judicial Circuit Appellate Division arguing that the entire Noise Ordinance
was unconstitutionally vague because it lacked an objective standard. More
specifically, Kwartin argued that the City’s failure “to adopt a noise ordinance
containing specific, scientifically measurable sound levels . . . prevents it
from being able to enforce the arbitrary and capricious standards contained
in the current [ordinance].”
Following oral argument below, the entire Appellate Division panel
agreed that “[n]oise ordinances do not require mathematical precision, nor
do they require a decibel reader.” Kwartin v. City of Miami Beach, 31 Fla. L.
Weekly Supp. 520, 522 (Fla. 11th Cir. Ct. Jan. 22, 2024); see also State v.
Catalano, 104 So. 3d 1069, 1076 (Fla. 2012) (“To withstand constitutional
scrutiny, however, statutes do not have to set determinate standards or
provide mathematical certainty.”).
However, a 2-1 majority invalidated the following portion of the Noise
Ordinance (in bold):
of any such set, instrument, phonograph, machine or device between the hours of 11:00 p.m. and 7:00 a.m. in such manner as to be plainly audible at a distance of 100 feet from the building, structure, vessel, floating structure, or vehicle in which it is located shall be prima facie evidence of a violation of this section.
3 The using, operating, or permitting to be played, used or operated any radio receiving set, television set, musical instrument, phonograph, or other machine or device for the producing or reproducing of sound . . . at any time with louder volume than is necessary for convenient hearing for the person or persons who are in [or on] the room, vehicle[, vessel, floating structure,] or chamber in which such machine or device is operated and who are voluntary listeners thereto.
Kwartin, 31 Fla. L. Weekly Supp. at 522 (quoting City of Miami Beach, Fla.,
Code § 46-152(b)). The City timely filed a Petition for Writ of Certiorari
seeking to quash the majority opinion.
Our review of a circuit court appellate decision on review of a final
administrative action “is limited to whether the circuit court afforded
procedural due process and whether the circuit court applied the correct law.”
Nader v. Fla. Dep’t of Highway Safety & Motor Vehicles, 87 So. 3d 712, 723
(Fla. 2012); see also Philip J. Padovano, 2 Fla. Prac., Appellate Practice §
25:12 (2024 ed.) (“The standard applicable to district court of appeal review
by certiorari of an appellate decision of the circuit court on review of final
administrative action is expressed in different terms from the standard that
generally applies to the issuance of a writ of certiorari. Once a final
administrative action has been fully reviewed by the circuit court, the role of
the district court of appeal is limited to a determination whether the circuit
court afforded procedural due process and applied the correct law.”).
4 It is firmly established that ordinances “enjoy a presumption in favor of
constitutionality.” Kuvin v. City of Coral Gables, 62 So. 3d 625, 632 (Fla. 3d
DCA 2010). Moreover, it is a settled principle of constitutional law that courts
should avoid ruling on constitutional issues “if the case in which the question
arises may be effectively disposed of on other grounds.” State v. Covington,
392 So. 2d 1321, 1322–23 (Fla. 1981) (quoting Singletary v. State, 322 So.
2d 551, 552 (Fla. 1975)).
Here, it was unnecessary to invalidate a portion of the City’s Noise
Ordinance because Kwartin’s two violations are valid pursuant to the
following language, which the entire Appellate Division panel below agreed
was constitutional:2
The following acts, among others, are declared to be unreasonably loud, excessive, unnecessary or unusual noises in violation of this section . . . :
(b) Radios, televisions, phonographs, etc. The using, operating, or permitting to be played, used or operated any radio receiving set, television set, musical instrument, phonograph, or other machine or device for the producing or reproducing of sound in such manner as to disturb the peace, quiet and comfort of the neighboring inhabitants . . . .
City of Miami Beach, Fla., Code § 46-152 (emphasis added).
2 Kwartin did not file a cross-petition challenging this unanimous holding. We therefore do not address the constitutionality of this language, especially in light of our limited scope of certiorari review.
5 There is no indication that Kwartin was cited for violating the portion of
the Noise Ordinance invalidated below, which prohibits, inter alia, listening
to music or playing a musical instrument “with louder volume than is
necessary for convenient hearing for the person or persons who are in . . .
the room.” Id. Indeed, it is undisputed that Kwartin was cited because his
neighbor complained about the noise.
Accordingly, because this case could have been decided without
invalidating a portion of the City’s Noise Ordinance, we grant the Petition and
quash the majority opinion.
Petition granted.
6 City of Miami Beach v. Kwartin Case No. 3D24-0291
LOGUE, C.J., concurring.
The majority below finds part of a noise ordinance enacted by the City
of Miami Beach unconstitutionally vague in an opinion that does not contain
a statement of facts. The opinion contains no statement of facts because the
court below had no factual record before it. In the absence of a record, the
majority below was unable to determine if the provision of the noise
ordinance it found unconstitutional was at issue in the administrative
decisions it was reviewing. It remands to the administrative tribunal
apparently to make that determination.
Although the majority opinion below purports to declare part of an
ordinance unconstitutional, it adjudicates nothing. It is a classic, indeed a
perfect, example of a prohibited advisory opinion. Merkle v. Guardianship of
Jacoby, 912 So. 2d 595, 599 (Fla. 2d DCA 2005) (“With limited exceptions
not material here, Florida’s appellate courts are not authorized to issue
advisory opinions.”). And an incorrect one to boot. DA Mortg., Inc. v. City of
Miami Beach, 486 F.3d 1254, 1272 (11th Cir. 2007) (upholding against
vagueness challenge ordinance language identical to language held
unconstitutional in the majority opinion below).
7 I concur that it must be quashed. I write only to approve the analysis
made by Judge Santovenia in her dissent below which I would adopt in its
entirety because it reflects the appropriate restraint that judges must
exercise when asked to review the constitutionality of the acts of legislative
or executive bodies.