final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
appeal from the Circuit Court for Bay County. James B.
T. Reeves of Davis, Schnitker, Reeves & Browning, P.A.,
Madison, and Mark V. Murray, Tallahassee, for Appellant.
Cole Davis and Julia K. Maddalena of Hand Arendall Harrison
Sale LLC, Panama City, for Appellee.
Cycles, Inc. challenges a final summary judgment upholding
Panama City Beach's (City) ordinances pertaining to the
rental of motorized scooters. Two ordinances are at issue,
one prohibiting the overnight rental of scooters and one
completely prohibiting the rental of scooters in the city
effective September 8, 2020. Appellant claims the ordinances
are arbitrary as a matter of law because the City does not
have the power to ban a business from the entire city unless
the business constitutes a per se legal nuisance. They also
argue that the ordinances are preempted by Florida
Statutes. We find no error in the trial court's
determination that a geographically small city has the right
to restrict a business from operating within the city when
the undisputed facts demonstrate that the restriction is for
the safety of the city's citizens and visitors. We also
find that chapter 316 does not preempt the ordinances because
it provides the City the right to pass restrictions on types
of vehicles which may be operated in congested areas.
2015, the City passed ordinances requiring drivers of rented
scooters to wear vests and requiring businesses renting
scooters to the public to carry insurance on the scooters.
This court reversed a trial court's order finding the
ordinances valid, holding that these ordinances were
preempted by state law. Classy Cycles, Inc. v. Bay
County, 201 So.3d 779 (Fla. 1st DCA 2016).
8, 2017, the City enacted two new ordinances: 1415, which
prohibits the overnight rental of scooters; and 1416, which
completely prohibits the rental of scooters in the City
effective September 8, 2020. Both ordinances contain
extensive whereas clauses, painting a portrait of the
City's rationale for adopting them: The City is
geographically small and crowded and is being besieged by
inexperienced scooter drivers seeking amusement and driving
in a dangerous manner; the City is a tourist destination
frequented by tens of thousands, and its streets are
congested by scooters that are being driven illegally and in
areas where they are not permitted; the City's residents
and visitors are put in dangerous situations as a result of
the improper use of scooters, especially at night; City
businesses have complained about numerous trespasses on their
property by people driving scooters while being disruptive;
City police have been unable to cope with the situation and
essential police resources are being drained; the City has
been unable to control the situation through less restrictive
portion of the whereas clauses describing this situation is
setout in the footnote below.
12, 2017, Classy Cycles commenced the underlying action
seeking to have ordinances 1415 and 1416 declared invalid,
arguing the ordinances are preempted by state law, they
impermissibly burden the statutory right of drivers to
operate a motor vehicle on public streets, they treat drivers
of scooters differently than other drivers, and the
ordinances cannot as a matter of law prohibit renting a
scooter. The factual findings contained within the whereas
clauses were not challenged in the trial court nor have they
been challenged on appeal.
parties filed motions for summary judgment, and the trial
court, after several hearings, entered final summary judgment
in favor of the City.
specific arguments raised in appellant's brief are: (1)
the City's ordinances are arbitrary and unreasonable
because they ban an activity that is not a per se nuisance;
and (2) the City's ordinances are preempted and thus
invalid because they are an attempt by the City to indirectly
regulate what this court ruled the City could not directly
regulate in Classy Cycles, Inc. v. Bay County, 201
So.3d 779 (Fla. 1st DCA 2016).
the argument between the parties concerns whether the
ordinances are traffic control ordinances or zoning
ordinances. Ultimately this question does not control our
analysis. No matter how they are categorized they restrict
the rental of scooters with the goal of limiting their use
within the city. This is the action which we must review.
argues the City's ordinances are arbitrary because they
restrict and ultimately eliminate the business of renting
scooters within the city. They contend that the rental of
scooters to the public is not a per se nuisance, so the City
may not enact ordinances completely prohibiting this business
because such ordinances would be arbitrary and unreasonable
as a matter of law. They rely on the cases of Carter v.
Town of Palm Beach, 237 So.2d 130 (Fla. 1970); and
Inglis v. Rymer, 152 So. 4 (Fla. 1934).
City contends that it is permitted to prohibit activity which
threatens the health, safety, and welfare of its citizens and
visitors, even when the activity is not a per se nuisance
because of a constitutional amendment granting municipalities
broad powers and the Municipal Home Rule Powers Act (MHRPA).
We first look to the history of a city's ability to adopt
ordinances for the health, safety, and welfare of their
the constitution of 1885, the Legislature was required to
pass a general or special act to grant municipalities the
power to perform any given function. City of Boca Raton
v. State, 595 So.2d 25, 27 (Fla. 1992), modified sub
nom. Collier County v. State, 733 So.2d 1012 (Fla.
1999), holding modified by Sarasota County v. Sarasota
Church of Christ, Inc., 667 So.2d 180 (Fla. 1995).
Municipalities thus derived all of their power from the
Legislature, and unless the Legislature explicitly granted
them the power to perform a given function, the
municipalities were without authority to act. Id.
1968, the State amended the Florida Constitution and provided
for broad inherent municipal powers, "except as
otherwise provided by law." Id. (quoting Art.
VIII §2(b), Fla. Const.). The legislature further
adopted this view when it passed the Municipal Home Rule
Powers Act (MHRPA), which codified the constitution's
recognition of the broad powers inherent in municipalities
and authorized them to wield any power not expressly
prohibited by law. See § 166.021, Fla. Stat.
under section 166.021, the MHRPA provides that municipalities
have inherent governmental powers that do not require
(1) As provided in s. 2(b), Art. VIII of the State
Constitution, municipalities shall have the governmental,
corporate, and proprietary powers to enable them to conduct
municipal government, perform municipal functions, and render
municipal services, and may exercise any power for municipal
purposes, except when expressly prohibited by law.
(2) "Municipal purpose" means any activity or power
which may be exercised by the state or its political
(3) The Legislature recognizes that pursuant to the grant of
power set forth in s. 2(b), Art. VIII of the State
Constitution, the legislative body of each municipality has
the power to enact legislation concerning any subject matter
upon which the state Legislature may act.
§ 166.021, Fla. Stat.
this framework, the parties dispute to what extent a
municipality can prohibit a certain activity. Appellant
argues a municipality cannot totally prohibit any business
activity that is not a per se nuisance. The City contends it
can prohibit any activity, provided the reasoning supporting
the prohibition is not arbitrary or unreasonable. We agree
with the City.
to the enactment of the MHRPA, courts routinely struck down
ordinances prohibiting certain business or leisure activities
because the respective municipalities were not banning
activity that was considered a per se nuisance and the
municipalities were acting outside of valid authority
conferred by the legislature. See Inglis v. Rymer,
152 So. 4 (Fla. 1934) (holding that an ordinance prohibiting
skating rinks that charged a fee was invalid because the
municipality had no express authority to enact such an
ordinance unless the activity was considered a per se
nuisance); Carter v. Town of Palm Beach, 237 So.2d
130 (Fla. 1970) (holding that an ordinance prohibiting
surfing was invalid because even though the municipality had
authority to regulate surfing, the ordinance was arbitrary
and unreasonable because it sought to prohibit an activity
that was not a per se nuisance). We find appellant's
argument unpersuasive for several reasons.
the case law cited by appellant is at least partially based
on the outdated analysis from Inglis that one had to
look to the city charter to determine whether the city had
the right to ban the particular activity. 152 So. at 5.
Second, while the court in Inglis held that banning
a business activity throughout the city was arbitrary and
unreasonable under those particular circumstances, the facts
in this case indicate that the limitation on the rental of
motor scooters constitutes reasonable exercise of police
powers by the City.
City points out, the law has changed since Inglis
and Carter were decided. The Legislature passed the
MHRPA and provided municipalities with inherent authority to
pass ordinances pertaining to a legitimate exercise of
municipal power. Municipal ordinances no longer require an
express statutory provision authorizing their enactment, but
the ordinances must pass the rational basis test to be
upheld. Kuvin v. City of Coral Gables, 62 So.3d 625,
632 (Fla. 3d DCA 2010) (citing Dep't of Cmty. Affairs
v. Moorman, 664 So.2d 930, 933 (Fla. 1995)).
"per se nuisance" requirement is no longer in
effect because it was attached to the now defunct rule
requiring municipalities to only exercise authority expressly
granted to them by the legislature. The modern test is an
application of the rational basis test, which requires that
the ordinance in question be reasonable and not arbitrary.
trial court addressed the applicability of Carter
and the per se nuisance rule cogently by pointing out that
the holding in Carter did not survive the expansion
of municipal home rule power as evidenced by modern case law
upholding prohibitions of activities that are not per se
nuisances. See Kuvin v. City of Coral Gables, 62
So.3d 625, 628 (Fla. 3d DCA 2010) (upholding prohibition of
parking trucks in residential areas); Exile v. Miami-Dade
County, 35 So.3d 118, 119 (Fla. 3d DCA 2010) (upholding
prohibition of sex offenders from residing within 2500 feet
of a school); Lamar-Orlando Outdoor Advert. v. City of
Ormond Beach, 415 So.2d 1312, 1315 (Fla. 5th DCA 1982)
(upholding prohibition of off-site advertising); Lambros,
Inc. v. Town of Ocean Ridge, Fla., 392 So.2d 993, 993
(Fla. 4th DCA 1981) (upholding prohibition of all commercial
uses of property); Blank v. Town of Lake Clarke
Shores, 161 So.2d 683 (Fla. 2nd DCA 1964) (upholding
prohibition of all commercial activity).
under modern home rule power, municipalities have broad
authority to regulate activities impacting public health,
safety, and welfare so long as such regulations are not
arbitrary or unreasonable. See, e.g., City of
Jacksonville v. Sohn, 616 So.2d 1173, 1174 (Fla. 1st DCA
1993). Accordingly, to the extent that appellant argues on
appeal that the City was without authority to prohibit the
leasing or rental of motor scooters because motor scooters
are not a "per se ...