Florida Vegetable Gardens - Background

Litigation Backgrounder

An Afront To Gardeners Everywhere: Miami Shores Forces Homeowners To Destroy Their Front-Yard Vegetable Garden

Property Owners Sue After Being Threatened with Severe Fines For Growing Vegetables on Their Own Property
 

The Issue in a Nutshell

May the government prohibit you from peacefully and productively using your own property to feed your family?   

For 17 years, Hermine Ricketts and her husband Tom Carroll used their front yard to grow food for their own personal consumption.  And for 17 years, nobody had a problem with it . . . until now.  In May 2013, the village of Miami Shores, Fla., amended its zoning ordinances to explicitly prohibit front-yard vegetable gardens.  Only vegetables are banned—trees, fruit and garden gnomes are just fine. 

A few days later, the Village’s code enforcement department served Hermine and Tom with a notice informing them they were in violation of the front-yard vegetable ban.  The department threatened them with fines of $50 per day if they did not destroy their beautiful garden.  Unable to bear the cost of such hefty fines, Hermine and Tom had no option but to surrender to the government’s demands and uproot the garden. 

The battle, however, is far from over.  Hermine and Tom are part of a nationwide movement of small-scale food producers and consumers who are tired of the government making their food choices for them—of government dictating what foods they can grow, raise and eat.  On November 19, 2013, they joined with the Institute for Justice to challenge Miami Shores’ senseless front-yard vegetable garden ban.  Their case aims to vindicate the right of all Americans to peacefully use their own property to support their own families.


Introduction

Hermine Ricketts and Tom Carroll are a married couple who have resided at their modest home in Miami Shores, Fla., for more than 20 years.  For 17 of those years, they grew vegetables in their front yard for their own consumption.  Because their backyard doesn’t get sufficient sunlight, the front yard was the only place where they could grow their vegetables.  

Hermine and Tom always took care of the garden to preserve its health and physical appearance.  With great pride, Hermine meticulously maintained and tended the vegetables, weeding and pruning on an almost-daily basis.  An architect by trade, she applied her talents for design to create a garden in a unique front-yard landscape.  In retirement, the vegetable garden provided her with a continuing means to channel her energy and to engage her lifelong passion for design.  Quite often, neighbors and passersby would spot her in the garden and compliment her on its beauty.

But this source of sustenance and solace for Hermine and Tom was uprooted in May 2013, when the Miami Shores Village Council amended its zoning code to expressly prohibit front-yard vegetable gardens:  “Vegetable gardens are permitted in rear yards only.”[1]  This prohibition was enacted in the name of “protect[ing] the distinctive character of Miami Shores Village.”[2]  Yet fruit, flowers and flamingos are still okay in the front yards of Miami Shores—just not vegetables. 

Within days, code enforcement inspectors arrived on Hermine and Tom’s property, purportedly acting on an anonymous complaint.  Before Hermine and Tom could even make sense of the situation, they were issued a citation for maintaining an illegal front-yard vegetable garden.  Just like that, they were outlaws.  They were given two choices:  get rid of the vegetables or face fines of $50 per day. 

In the weeks that followed, Hermine and Tom appeared before the Miami Shores Code Enforcement Board on two separate occasions, seeking clarity on the vegetable ban and pleading for the ability to keep their garden.  Each time, their pleas were brushed aside by Miami Shores officials. 

Faced with significant fines, Hermine and Tom agreed to uproot their vegetable garden.  And for the first time in 17 years, they will not have a fall vegetable harvest.

Hermine and Tom never set out to violate the law.  The idea of making productive use of their property to grow food just seemed like a smart, economical thing to do.  In Miami Shores, however, that sort of self-sufficiency—always a hallmark of the American character—is against the law.  But old habits (and constitutionally protected rights) die hard; with the help of the Institute for Justice, which now represents Hermine and Tom in court, they are fighting back.

 

A Cause Older than the Republic

Hermine and Tom are carrying the torch in a conflict whose origins predate the nation’s founding.  America’s Founders understood the significance of small-scale agricultural production to a free society.[3]  The U.S. Constitution’s framers—many of whom were themselves gardeners and farmers—had a profound appreciation for the earth’s potential to provide food, independence and autonomy.[4]

Likewise, the earliest Americans were strongly opposed to governmental policies that impacted what they could eat or drink.[5]  In defiance of such overreach, colonists boycotted British imports in favor of locally sourced substitutes, relying, like Hermine and Tom, on their own lands to provide for their most basic needs.[6]  In fact, the Declaration of Independence provides perhaps the earliest American enshrinement of the concept of “food freedom.”[7]  And as U.S. Supreme Court Justice Stephen Field explained, “The right to procure healthy and nutritious food, by which life may be preserved and enjoyed, and to manufacture it, is among the[] inalienable rights” referenced in the Declaration.[8]  Food freedom, in short, has a long and honored place in our national history.

 

An Issue of National Significance

Despite that history, however, Hermine and Tom’s plight is not unique—far from it.  Increasingly, towns and cities like Miami Shores are abusing their zoning and land use powers to infringe the rights of property owners.  It has become all too common for overzealous local governments to deem themselves empowered (and qualified) to decree what is or is not physically attractive and to enact regulations outlawing whatever they consider undesirable—even something as harmless and healthful as vegetables.[9]  

For example, in Tulsa, Okla., Denise Morrison was cited by code enforcement officials who alleged that her garden, in which she grew over one hundred varieties of edible and medicinal plants, violated the city code.  Confident that she had taken every precaution to ensure that her garden was in compliance, Morrison bravely took her cause to the courts.  A day later, she returned home to find men on her property chopping everything down.  Morrison, who was unemployed at the time, relied on her garden as an essential source of food and herbal medicine.  And before she could even have her day in court, the city entered onto her property without her consent and destroyed every last bit of it.[10]

And in Oak Park, Mich., Julie Bass was threatened with 93 days in jail for her front-yard vegetable garden on the grounds that it violated the city’s ordinance requiring “suitable, live, plant material.”[11]  The question of the garden’s legality essentially hinged on the city planner’s subjective determination of what is or is not “suitable.”  To Bass, her property clearly satisfied the ordinance.  But Oak Park’s City Planner, Kevin Rulkowski disagreed.  “That’s not what we want to see in a front yard,” he said.[12]

Rulkowski’s comments are emblematic of a troublesome national trend.  In the name of aesthetics, local governments wield their zoning codes as a weapon against property owners’ fundamental right to put their lands to peaceful and productive use.  These regulations go far beyond commonsense regulations of intensive agricultural practices or livestock husbandry.  Rather, bans like Miami Shores’ regulate basic lifestyle choices—indeed, the most fundamental lifestyle choice:  where we get our food.  And they are flatly unconstitutional.

In this case, the Institute for Justice argues that Miami Shores’ restriction on front-yard vegetable gardens restricts the right of Hermine and Tom—indeed, of all Floridians—to peacefully and productively use their property to feed themselves.  A victory in this case would mark an historic vindication for property rights in Florida, with significant implications extending beyond the state, as well.

 

A Fundamental Right to Grow One’s Own Food

Hermine and Tom’s fundamental right to put their property to peaceful, productive use is guaranteed by the Florida Constitution’s Basic Rights Clause, which protects the right of all Floridians “to acquire, possess, and protect property.”[13]  The Florida Supreme Court has held that under any “common sense reading” of the clause, “the phrase ‘acquire, possess, and protect property’ . . . includes the incidents of property ownership:  the ‘[c]ollection of rights to use and enjoy property.’”[14]  Any such collection of rights naturally includes the right to use property to provide for the basic necessities of life.  Indeed, the right to procure and consume nutritious food has been considered part and parcel of the celebrated American “‘right to pursue one’s happiness.’”[15]

Hermine and Tom’s right to maintain their garden enjoys protection in another provision of the Florida Constitution, as well—one intended to protect citizens against arbitrary intrusions by the government into private matters.   Florida is one of only a handful of states to explicitly protect the right of privacy in its constitution.[16]  In 1980, the state amended its constitution to provide that “[e]very natural person has the right to be let alone and free from governmental intrusion into the person’s private life.”[17]  While Florida’s Supreme Court is yet to squarely address the issue, other courts interpreting similar privacy clauses have held they protect the right to engage in harmless activities in one’s own home, including consuming the foods of one’s choice.[18]

Because Hermine and Tom’s right to grow vegetables on their own property for their own consumption is protected by the Basic Rights and Right of Privacy Clauses of the Florida Constitution, courts are required to apply heightened scrutiny in reviewing Miami Shores’ ban on front-yard vegetable gardens.[19]  That means Miami Shores will have to prove that its ban promotes a compelling governmental interest and is narrowly tailored to advance that interest.[20]  If the government does not meet that high burden (and it cannot), the ban must be struck down as unconstitutional.[21]

 

Food Isn’t Ugly

But even if the courts do not agree that Hermine and Tom’s right to grow vegetables on their own property for their own consumption is a fundamental right protected by the Basic Rights or Right of Privacy Clause of the Florida Constitution, Miami Shores’ ban on front-yard vegetable gardens is still unconstitutional.  That is because even a law that does not abridge a fundamental right still must be rationally related to a legitimate government interest.[22]  A ban on vegetables in front yards is anything but that.

Simply put, government has no legitimate interest in preventing people from seeing vegetables.  And there is no rational relationship between the vegetable garden ban and any purported interest in aesthetics.  After all, a yard does not become unsightly just because you can eat some of the things you grow there; aesthetics does not turn on edibility.[23]

The fact is, Miami Shores is not rejecting the physical appearance of Hermine and Tom’s garden at all.  Rather, it is misusing its regulatory power to prohibit a certain lifestyle, one in which responsible property owners put their property to productive use—in a way that harms no one—in order to become independent and self-sufficient.  It is utterly irrational that Hermine and Tom could have flowers, fruit or flamingos in their front yard, but not vegetables.[24]

 

The Institute for Justice Team

The lead attorney in this case is Institute for Justice Attorney Ari Bargil.[25]  He will be joined by IJ Senior Attorney Michael Bindas,[26] who is leading IJ’s National Food Freedom Initiative.      

Founded in 1991, IJ is the national law firm for liberty.  It advances a rule of law under which individuals can control their destinies as free and responsible members of society.  To that end, the Institute for Justice litigates to secure economic liberty, school choice, private property rights, freedom of speech and other vital individual liberties, and to restore constitutional limits on the power of government. 

 

IJ’s National Food Freedom Initiative 

Hermine and Tom are part of a nationwide movement of small-scale food producers and consumers who are tired of the government making their food choices for them—of government dictating what foods they can grow, raise or eat.  To end such governmental meddling in our food choices, IJ is today launching its National Food Freedom Initiative:  A nationwide campaign that will bring property rights, economic liberty and free speech challenges to laws that interfere with the ability of Americans to produce, market, procure and consume the foods of their choice. [27]  In addition to Hermine and Tom’s property rights challenge to the Miami Shores vegetable garden ban, IJ is filing two other cases today to inaugurate the initiative. 

The first is an economic liberty challenge to severe restrictions on “cottage food” producers in Minnesota.  The state allows entrepreneurs to make certain inherently safe foods, such as baked goods, in home kitchens, but it:  (1) prohibits the sale of such homemade foods anywhere other than farmers’ markets and community events; and (2) limits revenues to $5,000 annually, which averages only $96 per week.  IJ is challenging these restrictions under the Minnesota Constitution on behalf of cottage food entrepreneurs Jane Astramecki and Mara Heck.  Learn more about their case at: www.ij.org/MNCottageFood

The second is a free speech challenge to Oregon’s absolute ban on the advertisement of raw—or unpasteurized—milk.  It is legal for small farmers in Oregon to sell raw milk, but they are flatly forbidden from advertising it.  IJ is challenging this ban under the First Amendment on behalf of farmer Christine Anderson of Cast Iron Farm.  Learn more about Christine’s case at: www.ij.org/ORMilk.

Through these and future cases, IJ’s National Food Freedom Initiative will end unreasonable and intrusive governmental interference with our food choices and usher in real food freedom for all Americans.

 

For more information, contact:

Shira Rawlinson, Assistant Director of Communications
Institute for Justice
901 N. Glebe Road, Suite 900
Arlington, VA  22203
(703) 682-9320, ext. 229

srawlinson@ij.org



[1] See Code of Ordinances of Miami Shores Village, Florida, Part II, App. A, art. V, div. 17, § 536(e) (2013) (“Vegetable gardens are permitted in rear yards only.”).  Previously, this provision read, “Vegetable gardens are permitted in rear yards.”

[2] Id. Part II, App. A, art. I, § 100(1).

[3] See, e.g., Letter from Thomas Jefferson to John Jay (Aug. 23, 1785) (“Cultivators of the earth are the most valuable citizens. They are the most vigorous, the most independent, the most virtuous, and they are tied to their country and wedded to its liberty and interests by the most lasting bonds.”).

[4] See, e.g., Andrea Wulf, Founding Gardeners: The Revolutionary Generation, Nature, and the Shaping of the American Nation 9 (2011) (“Agriculture and the independent small-scale farmer were, in [the Founders’] eyes, the building blocks of the new nation.  Ploughing, planting, and vegetable gardening were more than profitable and enjoyable occupations:  they were political acts, bringing freedom and independence.”).

[5] Disapproval of taxes on tea, sugar and other commodities—often required to be imported from Britain—along with Quartering Acts requiring colonists to house and feed British soldiers, were responsible for much of the early unrest that ultimately led to the American Revolution.

[6] Id. at 7 (“[A]s tension over the Stamp Act grew, [Benjamin] Franklin argued that the colonies would be able to pressure the British by boycotting their goods. ‘I do not know a single article,’ Franklin told MPs, that the colonies couldn’t either ‘do without or make themselves.’”); id. at 8-9 (“In response to the Stamp Act, [John] Adams had suggested that colonists should wear coats made of the hides of their own oxen rather than woolen ones from Britain.  Adams promised that he would not buy ‘one shilling worth of any thing that comes from old England.’”).

[7] The Declaration of Independence para. 12 (U.S. 1776) (“[The King] has . . . sent hither Swarms of Officers to harass our People, and eat out their Substance.”).

[8] Powell v. Pennsylvania, 127 U.S. 678, 692 (1888) (Field, J., dissenting).

[9] See, e.g., Kenneth Regan, You Can’t Build that Here: The Constitutionality of Aesthetic Zoning and Architectural Review, 58 Fordham L. Rev. 1013 (1990).

[13] Fla. Const., art. I, § 2.

[14] Shriners Hospitals for Crippled Children v. Zrillic, 563 So. 2d 64, 67 (Fla. 1990) (quoting Black’s Law Dictionary 997 (5th ed. 1979)).

[15] City of Helena v. Dwyer, 42 S.W. 1071, 1072 (Ark. 1897) (quoting Powell, 127 U.S. at 692  (Field, J., dissenting)); see also id. at 1073 (recognizing “the inalienable right of man to procure healthy and nutritious food, by which life may be preserved and enjoyed”).

[16] Fla. Const. art. I, § 23.

[17] Id.

[18] See, e.g., Gray v. State, 525 P.2d 524, 528 (Alaska 1974); Ravin v. State, 537 P.2d 494, 504 (Alaska 1975).

[19] See N. Fla. Women’s Health and Counseling Servs., Inc. v. State, 866 So. 2d 612, 620 (Fla. 2003) (“The right of privacy is a fundamental right which we believe demands the compelling state interest standard.”) (citing cases); Dep’t of Law Enforcement v. Real Property, 588 So. 2d 957, 964 (Fla. 1991) (“Property rights are among the basic substantive rights expressly protected by the Florida Constitution.”).

[20] State v. J.P., 907 So. 2d 1101, 1109-10 (Fla. 2004); Jacobson v. Southeast Personnel Leasing, Inc., 113 So. 3d 1042, 1048 (Fla. 1st DCA 2013).

[21] Id.; see also T.M.H. v. D.M.T., 79 So. 3d 787, 792-93 (Fla. 5th DCA 2011) (“Statutes that interfere with a fundamental right are presumptively unconstitutional and subject to strict scrutiny.”).

[22] See Westerheide v. State, 831 So. 2d 93, 110 (Fla. 2002); City of Lauderhill v. Rhames, 864 So. 2d 432, 440 (Fla. 4th DCA 2003).

[23] Miami Shores’ focus on edibility was evident in remarks of the village’s Code Enforcement Board when Hermine and Tom appeared before it.  E.g., Audio tape:  Hearing of the Miami Shores Code Enforcement Board (August 1, 2013, at 13:38) (on file with Institute for Justice) (“Do you have vegetables being grown in your front yard? . . . Are you cultivating these vegetables?  Are they growing wild, or did you plant them and you’re growing and caring and pulling the weeds and making sure they grow so they’re edible?”).

[24] Miami Shores’ ban does not apply to fruit, as the Code Enforcement Board explained to Hermine and Tom.  E.g., Audio tape:  Hearing of the Miami Shores Code Enforcement Board (July 11, 2013, at 35:51) (on file with Institute for Justice) (“I will tell you right now, a strawberry is a fruit, okay.”).

[27] For more information on IJ’s National Food Freedom Initiative, please visit our website at: www.ij.org/FoodFreedom.


Email Address
Please enter a valid email address
Share

Institute for Justice
901 N. Glebe Road, Suite 900
Arlington, VA 22203
Tel 703.682.9320, Fax 703.682.9321
© 1997-2014