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Florida Appeals Court Upholds City's Veggie-Garden Ban

A court says a city can squash your property rights because it thinks vegetables are ugly.

Vegetable gardenSongdech Moonta / DreamstimeLate last month, I had the opportunity to discuss my recent book, Biting the Hands that Feed Us: How Fewer, Smarter Laws Would Make Our Food System More Sustainable, before a Seattle-based group of family and consumer scientists, many of them retired. During my talk, I focused in part on a series of city ordinances around the country that ban people from gardening in their own front yards. As almost always happens, these particular laws, among the countless dozens I discuss in the book, raised the most ire among the audience:

"Why would any city do this? How can a city do this? I hope these people are fighting back!"

One of the most egregious examples I highlighted comes from an ongoing case in Miami Shores, Fla. There, Hermine Ricketts and her husband, Laurence Carroll, had kept a nicely manicured vegetable garden in their front yard for nearly two decades. Then, in 2013, Miami Shores adopted an ordinance that banned vegetable gardens, and vowed to fine violators each day they failed to comply with the law.

The couple sued, arguing, as a local CBS affiliate put it, "that the ordinance ran afoul of the Florida Constitution, including that it violated their privacy rights and their right to acquire, possess and protect property."

Last year, a Florida state court upheld the vegetable-garden ban, on grounds that aesthetic reasons—the city thinks vegetables are ugly—are sufficient justification for a city to ban vegetable gardens.

Last week—a few days after my Seattle talk—a state appeals court ruled in the matter. The court's words are, at first, buoying. The decision begins with an non-exhaustive list of all the things Miami Shores residents may have in their front yards: "garden gnomes, pink flamingos and trolls.... boats and jet skis.... whatever trees, flowers, shrubs, grasses, fruits and berries they desire."

Everything save for vegetables.

Surely, thinks the reader, such a ban cannot stand. Tragically, after the appeals court's ruling, it did just that.

"Though [the plaintiffs'] claims seem compelling, the trial court's well-reasoned, ten-page final order rejecting the appellants' claims correctly acknowledged the difficult procedural posture confronting the appellants and dutifully applied controlling precedent," the appeals court held.

I will concede that the trial court's order is, in fact, 10 pages in length. Well reasoned? The order simply recommends that the proper remedy for Ricketts and Carroll—or anyone else whose right to plant a garden and feed themselves and their family has been trampled on—is to vote for better elected officials in their cities and towns. (It's worth noting that judges in Florida are also elected by voters.)

This is the judicial equivalent of the shruggie: ¯\_(ツ)_/¯

It's also a typical, if particularly repugnant, example of the trifling level of scrutiny—known as "rational basis review"—that's commonly applied by our courts.

"In Miami Shores, it is perfectly fine to grow fruit, build a pool, or park a boat in your front yard," says Ari Bargil, an attorney with the Institute for Justice, which represents Ricketts and Carroll, in an email to me in the wake of the court's ruling. "But this decision holds that it['s] perfectly rational for a City to prohibit vegetable gardens, while permitting virtually everything else."

Why ever would Miami Shores adopt such a draconian and unconstitutional measure? What rational basis might city lawmakers have had? These are great questions. Meh.

"City commissioners' motives in adopting ordinances are not subject to judicial scrutiny," the appeals court explains, citing Florida precedent. The particular Miami Shores garden ban is part of the city's zoning laws, an area in which courts often provide cities with almost boundless and arbitrary discretion.

"Prohibitions on gardens such as those in... Miami Shores... arise largely out of zoning regulations," I write in Biting the Hands that Feed Us. "Zoning, supporters contend, is intended to prevent conflicts and nuisances from arising. There's probably some truth to that argument. But sometimes, as in the case of the prohibitions on edible gardens detailed in this chapter, zoning itself becomes the nuisance and the source of conflict."

The problem of gardens and property rights snuffed out by draconian zoning rules is national in scope. In my book, I discuss many other examples of local gardening bans, several of which I first wrote about in a 2012 column, including ones in Oklahoma, Florida, Massachusetts, and Michigan (and have also written about since).

Thankfully, people are fighting back. For that approach to succeed, though, courts have to do their jobs.

"The Florida Constitution protects individuals from wholly arbitrary restrictions on their right to use their property," IJ's Bargil says.

I'm both optimistic and hopeful that Florida's highest court will see that truth and side with Ricketts and Carroll.

Photo Credit: Songdech Moonta / Dreamstime

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  • SQRLSY One||

    First, those softies who serve us in Government Almighty will be allowing us to grow veggies in our own front yards.

    THEN they'll be allowing our illegal-human servants to conduct ABORTIONS OF LIVING HUMAN BASTOCYSTS in our own front yard!

    It's a VERY slippery slope out there!!! Do NOT say that I didn't warn you!!!

  • jogibew||

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  • Tarbutton21||

    They should plant tomatoes, cucumbers and peppers. While most people consider them as vegetables they are all technically fruits and legal according to the ordinance.

  • Rich||

    Technical correctness trumps political correctness, eh?

  • Jury Nullification||

    "...and legal according to the ordinance."

    Oh, and thou thinkest a civilian jack boot will be deterred from making a more restrictive amendment to the ordinance or from tying up the citizenry in court with the spirit of the law. One can also expect a rebuke from the judge for being a smart ass by trying to exploit the garden show loophole which is there for everyone's protection.

  • Jerryskids||

    Botanically speaking, there is no such thing as a "vegetable". The seed-bearing fleshy ovary from any flowering plant is a fruit. Pumpkins, for example, are fruits even when grown by Rand Paul, and even when it leads to violent assault by a neighboring fruit.

  • SilentSkies||

    ^THIS^

  • BestUsedCarSales||

    So what is spinach or other leafy edible vegetables?

  • Johnimo||

    It's a leaf, not a fruit or a berry. Jerryskids' point is that the term "vegetable" means whatever you want it to mean, but roughly speaking ... "a healthy food thing that grows in the garden and not on a tree and isn't sweet." Thus, a squash is a "vegetable" while a cantaloupe is a "fruit."

  • Kefka||

    Vegetable is a culinary term. In everyday life I would use vegetable to describe tomatoes, pumpkins or whatever because it accords with common usage (how most of the general public use and understand the term) and makes me less likely to be misunderstood.

    That changes if I am sitting in a room with Botanist's.

  • Eidde||

    I used to buy the argument that if a right isn't spelled out *specifically* in the Constitution it doesn't exist - the alternative, I thought, would be judges just making stuff up at random.

    But if judges are disposed to make stuff up, then it doesn't matter which theory the courts are supposedly following, the inventive judges will be able to make stuff up using the rhetoric of any theory.

    And on the federal level we have the Ninth Amendment, and on the state level the Privileges and Immunities clause, indicating that there are constitutional rights not specifically spelled out in the text. It would be usurpation *not* to enforce these unenumerated rights.

    Of course, to figure out what are unenumerated rights and what aren't, we have to consult the original understanding back in 1791 (Ninth Amendment) and 1868 (Privileges and Immunities). But either way, owning and enjoying property, subject to legitimate regulations of health, safety and morals, was recognized as a constitutional right back in those days, and that understanding needs to be enforced today.

    I don't see how health, safety or morals are vindicated by banning vegegables, so therefore I'd think there's a constitutional right to grow veggies on your own property.

  • Jickerson||

    But either way, owning and enjoying property, subject to legitimate regulations of health, safety and morals,

    What does "morals" mean here?

  • Jury Nullification||

    "Morals" could mean things like not pruning your shrubs in the shape of a penis.

  • GroundTruth||

    LOL, you ought to see what an upright arborvite looks like after the deer nibble away the tender new outer growth within reach.... it would be nice to call it a "lolypop", but "the penis cut" is more accurate.

  • Eidde||

    OK, how about Thomas Cooley's definition of police power (on p. 572 of his famous treaties):

    "...[a State's] system of internal regulation, by which it is sought not only to preserve the public order and to prevent offences against the State, but also to establish for the intercourse of citizen with citizen those rules of good manners and good neighborhood which are calculated to prevent a conflict of rights, and to ensure to each the uninterrupted enjoyment of his own, so far as is reasonably consistent with a like enjoyment of rights by others."

  • Eidde||

    treatise not treaties

  • Eidde||

    "good manners" isn't an independent justification of regulation, but is qualified by "prevent a conflict of rights."

  • Eidde||

    So growing vegetables without sharing with your neighbors may not be good manners, it's not what Cooley had in mind. He would be thinking about something like letting your leaf pile blow into the neighbor's yard.

  • Marcus Aurelius||

    I like some good citizen on citizen intercourse on a Friday night.

  • Hank Phillips||

    But... but... whut about cannibal saliva? pay-yoti? silly-cybin and other Avatars of Satan? "We" cain't simply have anarchy? The initiation of force is the Lesser Evil... you gots ta vote fer it.

  • Tony||

    Not to mention abortion!

  • Dan S.||

    Are all vegetable gardens banned, or only those in front yards? If the latter, can't Ricketts and Carroll move theirs to their back yard?

  • SQRLSY One||

    They can grow them in their back yard, yes, but that's no excuse for arbitrary commands from the Morally Superior Goon Squad. In Soviet Russia, ya know, the ONLY place that one could be allowed to grow one's own private veggies, was in the dirt under one's own fingernails! And the only reason that THOSE weren't confiscated was that The Red Guard (in a "classless" society) had better veggies to eat!

    Anyway, let's run a "tight ship" here, and restrict Ricketts and Carroll to growing ONLY in their under-the-fingernails dirt... OK, let's be generous, belly-button dirt will be OK also... And then they will have NO reason to complain! They have SOME freedom left!

  • Chipper Morning Truthjammer||

    May be their backyard does not get enough light.

    Honestly, this is on their neighbors as well. Ordinances like this are in place because most people support them. Most suburbians associate gardens with poor people and think it makes the neighborhood look poor. It is the same reason most cities ban chickens. People are fucked up. I grow in the backyard just to avoid any hassle, but sure as well would like to grow in the front as well.

  • Longtobefree||

    Actually, I associate urban gardens with the elite, I cannot trust professional growers, all organic, no pesticide crowd. In my experience, the poor are at the grocery store with their EBT cards buying healthy vegetables there.
    Because the poor cannot afford housing that has enough fertile soil to grow a garden.

  • Ron||

    gardens aren't always the cheapest way to go but they do provide the best tasting and even access when the local stores don't carry something the private grower prefers

  • Libertarian||

    Wild tangent: I think an expert gardener could design an attractive landscape using vegetables by grouping them in a conventional way (squash as groundcover, potatoes as edging, etc) rather than rows.
    It'd be interesting to see.

  • Eric Bana||

    Gay!

  • lap83||

    no, that's edible manscaping

  • lap83||

    It's a thing. It's called edible landscaping

  • Rich||

    Prohibitions on gardens ... is intended to prevent conflicts and nuisances from arising.

    Well, that evidently failed.

  • Hank Phillips||

    Somebody might plant that narcotic merry-jew-wanna, or cannibal saliva, as it is known in de medicine profession. You can't be too careful...

  • Jury Nullification||

    Rationale for this ruling? Precedent - FUTW

    Precedent should only be respected when it maintains or expands freedom and not used to further oppression or contract liberty. In this instance, a most basic human right is restricted with no legitimate corresponding freedom being expanded.

    Abridging the right to be able to sustain one's self has no congruence with a selfish desire based on the grounds of subjective aesthetics or falling property values which results in diminished property tax revenue. This does not fucking compute. (10 pages not needed)

    Perhaps the city needs a Venezuelan starvation experience to be enlightened.

  • tbc||

    Precedent: "Some other doofus made a stupid decision based on specious reasoning so I'll just follow suit"

  • RabbitHead||

    But slippery slope arguments in regard to government policy are fallacies, don'tcha know?

  • justguessinghere||

    I think I see the line of reasoning here. Most commenters seem to think that once someone buys a house inside an incorporated city's limits that their home becomes a private nation and the city's commissioners should mind their own business. Thank the gods it doesn't work that way. Property ownership doesn't create kingdoms. If the feds plan to put an interstate highway through your neighborhood they will do it, regardless of anyone's assumed rights.

  • Jury Nullification||

    Keep guessing. And you will likely need a compass to find your way back to a highway relevant to this discussion. Save this comment for the eminent domain discussion. I'd give you a booby prize if there was one.

  • Longtobefree||

    You can't say booby. Sexist and demeaning to those who are, or identify, as women.
    Use newspeak, or don't click submit.

  • Jerryskids||

    I think I see the line of reasoning here.

    Good thing for you growing strawmen isn't illegal. It's not an all-or-nothing proposition, it's a matter of what's reasonable - nobody's arguing you're perfectly free to rape and rob and murder as long as it's on your own property, they're arguing that the principle that the government is perfectly free to enact any ordinance it wants to in the name of zoning is wrong. The onus isn't on the citizen to show why a government power should be restricted, the onus is on government to show that a power is necessary.

  • Jerryskids||

    And as Jury Nullification mentioned above, this is the same principle that upsets libertarians regarding the Kelo decision - it flips the government/citizen relationship upside-down.

  • Jury Nullification||

    "Property ownership doesn't create kingdoms."

    Oh, yeah!? Then why do we have the Castle Doctrine? When did serfs start living in castles. You seem to be someone that would be much more comfortable living in serfdumb. The gods you thank is not The God upon which our natural rights are based. I think I see your line of reasoning here.... and it hurts my brain.

  • sparkstable||

    In order for the city to place a list of restrictions on your property they must first own It, then sell it to you under a set of agreed upon criteria (such as limitations on use). It's how a HOA would develop. The power to control any land can only come from first owning it. The city does not own the land. In fact, eminent domain doctrine is based on the olden view that all domain belonged to the crown and he could reclaim it from those whom he had privelaged to work it at any time. As such, in a constitutional and rights based system, eminent domain has no standing.

    Granted, There are naturally existing limits on what one may do on their land, but those limits are only derived from negative rights of others and/or voluntary agreement to limit one's actions on their own land. Outside That, any government use or threat of violence to control how people use land is a violation of human rights.

  • Longtobefree||

    Or just have the guys with guns backing up their lawyers.

  • Chipper Morning Truthjammer||

    That is not what libertarians believe. Not even ancaps hold that a property owner is a sovereign.Educate yosself, fool.

  • Fuck you, Shikha (Nunya)||

    What you wrote is so vapid there isn't really a response dumb enough to retort with.

    You might try actuarially reading on the hundreds of years worth of reasoning to property use rights.

  • Telcontar the Wanderer||

    An incorporated city is formed by using government coercion against the city dwellers who disagree with the municipality's terms at the time of incorporation, and is thus a non-consensual, illegitimate organization with no rights of property or regulation whatsoever.

  • Warren||

    Ah The Good Life.

  • Eric L||

    Have they defined in their regs which edible plants are vegetables and which are not? So I could plant rows and rows of nasturtiums and that would be OK because most people think of them as just flowers? I could plant dahlia bulbs but not shallot bulbs? Both have pretty flowers and their bulbs are quite tasty.

  • sparkstable||

    They should build a small pool, park an old boat, And so pretty much anything else permitted with a sign saying "Per Judge So-and-so this ugly yard is legal but my veritable garden isn't," and have a picture of the veggie garden.

    Also... why not argue the American precedent of victory gardens and patriotism and nationalism and Our Boys need me to ration food, a la WWI and WWII? Is the judge an enemy sympathizer or something? Why is he hurting the war effort!?!?

  • Longtobefree||

    The back yard, man, the back yard.

  • Greg_Cherryson||

    So, only vegetables are explicitly banned, huh? Here is my advice for the home owners: grow cucumbers, tomatoes and peppers. They are FRUIT, not vegetable (ask any biologist). I would place yet another thing among the neat rows of plants: a garden gnome showing the finger for the code enforcement officer to see.

  • Greg_Cherryson||

    Oh, just noticed two similar suggestions above. Yes, I also forgot to mention pumpkins, watermelons, zucchini and eggplants. :)

  • laportama||

    Smart.
    too bad an orchard won't grow in S FL.

  • ChipToBeSquare||

    OT:
    George Takei (karma for the worst celebrity Twitter)
    The showrunner for Arrow, Supergirl, etc.
    Richard Dreyfuss
    Producer from E.R
    Aly Raisman said there was an Olympic doctor
    Hope Solo said a former president of FIFA
    Steven Seagal
    Ellen Page said an X-Men director outed her with a sexual remark
    Roy Moore
    Louie
    Hyde from That 70s Show
    Weinstein
    Spacey
    Anthony Weiner
    Bryan Singer was brought up again
    Affleck and Damon running interference
    The creeps who went after Corey Feldman
    Director of Jeepers Creepers
    Countless writers at far lefty websites
    Fox News
    Menendez trial had some crazy allegations that were seriously investigated
    Trump even with a generous interpretation of the tape is a bit of a creep, and prior to politics was running in Hollywood circles where maybe that behavior was even more tolerated
    Am I missing anyone? I hate H.W. but that claim was clearly BS, he's in a damn wheelchair

    So do we believe all of the the accusers? Half? None? Or just watch as the moral scolds on both sides (of course one side being more active recently) get what's coming to them? Do we reexamine the idea of a large scale Hollywood/DC pedophile ring? Or laugh as that idea is forced to be debated on a national stage?

  • Fuck =><= sevo||

    "Ellen Page said an X-Men director outed her with a sexual remark"

    Who cares? That's literally nothing.

  • ChipToBeSquare||

    He was also accused of rape. Forgot to mention that. Sounds like she was just confirming he was a creep

    But it's also not nothing when your industry lectures the rest of America on how it treats LGBTQRSTUV people

  • Gaear Grimsrud||

    Also rumored that Betty Rubble had to blow Hanna and Barberra to get the role. Appalling.

  • CGN||

    Government must be cut AT ALL LEVELS by at least 50%. Our fine country becoming a Soviet "paradise" where government types RULE, not represent. Obama, God Damn his name, was a dictator, with tons of help from the usual suspects (liberal democrats) and now our state and local would be dictators are "learning" how far they can do in SCREWING us the people, who are supposed to RULE THEM, not the other way around. Good starting point?!!? Vote out of office ANY AND ALL pols who support the kind of nonsense described above. Once out of office, have a referendum to eliminate their positions so upcoming dictators have no place of power.

  • laportama||

    Sad.
    Pathetic.
    Perverted.
    Dangerous.
    Shameful.

  • Hank Phillips||

    What's the problem? Austin Texas just a few years ago had neighborhood covenants restricting the sale of one's home to... um... colored people. We're talking ANOTHER retroactive impairment of contract rights, not to mention protection of our family farms from unfair competition originating in the yards of family homes! We're talking the rule of non-objective law for Christ and Shiva's sakes...

  • Longtobefree||

    That was then, this is now; try to keep up.

  • Telcontar the Wanderer||

    "The order simply recommends that the proper remedy for the sheep—or any other prey species whose right to not be eaten alive has been predated upon—is to vote for nicer wolves in their cities and towns."

  • Longtobefree||

    Or switch to a 3 to 12 variable scope?

  • Telcontar the Wanderer||

    ^ reported

  • ErSwnn||

    Given the metaphor from Telcontar, the reply by Longto is appropriate.

    Quit being so sensitive, it makes you seem weak and afraid of life.

  • Telcontar the Wanderer||

    WHOOOOOSH

  • inoyu||

    This matter isn't as onerous as it sounds. Many homeowners are subject to "covenants & restrictions" they accepted when buying their property. This is a voluntary abrogation of rights to maintain appearances and value of the community as a whole. It works reasonably well in suburbia. The real law is always at work. Violating vegetables and other lawbreakers carry on indefinitely, unless there's a complaint.

  • Rogers1234||

    Covenants against selling one's house to colored people are illegal and therefore unenforceable.

  • RabbitHead||

    Yes. But you know there's an HOA when you buy. And any crap sandwich they hand you is one you signed on to eat. The example given was a couple who had a front garden for decades before the zoning changed.

    Or are you implying that city government is just a super HOA, with the implied right to hand out crap sandwiches at will?

  • jonnysage||

    Ultimately, when govt no longer serves the people, it should be abolished. However if you're outnumbered then it's time to move somewhere more free with like minded people.

  • ErSwnn||

    Time to move?? No, it's time to revolt. As the owners of our government the citizens have a duty to defend it. The 2A was conjured just for this reason.

    Fortunately we have the ballot box and should avail ourselves of it before loading the flintlocks.

    We are not governed by decree, we are governed by consent. The agreement between the governing and the governed is the Constitution. When that agreement is broken by the governing it is our right, our duty, to put down the violation by whatever means it may take.

    Soap box, ballot box, jury box, ammo box....use in that order.

    Move?? To where?? Like we all have huge sums of money and can up and go with no regard to community ties, family, work, finances?? Are you nuts or simply prefer to parrot hackeyed lines of bumper sticker philosophies rather than think for yourself?

  • Hank Phillips||

    SOVIET PLOT ALERT! Those Floridian ordinance writers doubtless read about the 1982 commie plot in the Daytona Beach Morning Journal, October 19, 1982 p10: "Soviets Pushing Food Production on Small Individual Plots" See the original: http://tinyurl.com/y7ogxq4q

  • Srulio||

    Perhaps Florida's highest court needs to learn not only is "beauty in the eye of the beholder" but also that belittling food is an offensive way to proclaim disinterest in the wellbeing of others

  • Longtobefree||

    We have so much food in this country we burn it to fuel our cars.
    This is about power, not food.

  • ErSwnn||

    The citizens of Miami Shores ( I once lived there) should literally be showing up at meetings with pitchforks. But I'm betting this law came about when very few showed up at meetings, a typical scenario.

    Between small local politics and homeowners associations I have seen government and power run amok and usually unchecked. Folks, we hold elections for a reason. It's high time more of us pay attention BEFORE things get out of hand. Attend local meetings, express your opinions.

    We can fix this federal government by starting at local levels. Most governing begins right at home, literally. When Congressional members see an engaged home district they'll pay much more attention to their mandates and morals.

  • Bubba Jones||

    This law was passed on 2013. I am curious about what prompted it. Was someone growing corn?

    I wonder what distinguishes a "vegetable" from trendy ornamental cabbages, etc. Rosemary is a common ornamental shrub.

  • HillTown Trader||

    On a positive note, more states and communities are passing "freedom to farm" and "food freedom" regulations and laws.

    Wyoming passed a broad "right to grow and sell your produce" law three years ago, and has made it broader with each legislative session, ironing out unintended consequences as they arise.

    Many Massachusetts towns have adopted model "right to farm" ordinances, that clearly state that farming is messy and smelly, but that anyone with over five acres has a right to farm and have animals.

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