author: BASKIN, Judge. DANIEL S. PEARSON, Judge,

text:
    XEROX CORPORATION, Appellant, v. Al H. BLAKE, as Property Appraiser of Metropolitan Dade County, Florida, and R. K. Overstreet, as Tax Collector of Metropolitan Dade County, Florida, Appellees.
    No. 81-469.
    District Court of Appeal of Florida, Third District.
    June 8, 1982.
    Rehearing Denied July 21, 1982.
    Ayres, Cluster, Curry, McCall & Briggs and Randy R. Briggs, Ocala, for appellant.
    Jim Smith, Atty. Gen., and E. Wilson Crumps II, Asst. Atty. Gen., Robert A. Ginsburg, County Atty., and Stephen J. Keating, Asst. County Atty., for appellees.

      Before SCHWARTZ, BASKIN and DANIEL S. PEARSON, JJ.
   BASKIN, Judge.

Appellee Blake, property appraiser for Metropolitan Dade County, assessed Xerox Corporation’s 1977 leased personal property taxes at $28,100,053. Xerox contested the assessment by filing an action against the property appraiser, the tax collector, and the Department of Revenue. In that action, Xerox contended that the appraiser should have utilized income capitalization rather than depreciated list price in computing the taxable value of leased equipment. According to Xerox, the income capitalization method would have produced a lower assessment of $15,338,280. Pointing to the absence of an active sales market for the property and the fact that more than 98% of its Dade County customers preferred to lease rather than to purchase their equipment, Xerox argued that income capitalization was the method the appraiser should have utilized.

At the conclusion of the trial, the court entered a final judgment and an amended final judgment in favor of appellees. The amended final judgment contained the court’s findings:

1. The Court finds that the Plaintiff failed to sustain its burden of proof that the Property Appraiser did not consider all the relevant factors under Florida Statutes 193.011.
2. The Court rejects the income approach used by Plaintiff’s experts as representing just or market value for the following reasons:
a) The approach failed to provide for salvage value.
b) The officer or agent of the Plaintiff admitted that the Plaintiff corporation would not sell its equipment at the prices indicated by its income approach.
3. The “List Price less depreciation method” used by the Property Appraiser more accurately reflected just value albeit that the amount of sales was small and the sales were not of all models of Xerox equipment.
4. The Property Appraiser did not abuse his discretion and the value set by the Property Appraiser did represent just or fair market value.

Xerox labels the utilization of the depreciated list price method inappropriate because the market consisted of only two percent of the customers to whom the property was offered. We agree and hold that the limited sales market for leased equipment necessitates adoption of the income capitalization approach; we therefore disapprove the depreciated list price method employed by the appraiser and remand with directions to employ the income method.

Article VII, section 4, of the Florida Constitution compels the just valuation of all property for ad valorem taxation. Courts have defined “fair market value” and “just valuation” as legally synonymous. Walter v. Schuler, 176 So.2d 81 (Fla.1965). The Supreme Court of Florida, in City of Tampa v. Colgan, 121 Fla. 218, 163 So. 577 (1935), described fair market value as the amount of money a purchaser “willing but not obligated to buy property would pay to an owner willing but not obligated to sell it,” observing that the price at which similar property is bought and sold is the best test of value unless there is no established market. In the absence of a sales market, however, valuation must be based upon consideration of all factors which influence intrinsic value. 121 Fla. at 231, 163 So. at 582. Accordingly, in Palm Corp. v. Homer, 261 So.2d 822 (Fla.1972), the court found that, even though the taxpayer had neglected to submit its income to the assessor, the assessor erred in failing to use available data applicable to the income or economic approach.

Our selection of the income approach rests on several principles. First, we agree that sales price alone is inadequate to determine just value.

The petitioner placed great reliance upon the apparent “sales price” of the items he submitted into evidence. There is no synonymity of “sales price” and “just value”. The sale price of property includes many factors of price increase which are not included in case value and which bear no relation to the property being sold. These would include the advertising and promotion expense, the brokerage, legal and documentary tax costs and a profit — either reasonable or unreasonable — to the owner of the property being sold. There can be no presumption that any given piece of property is going to be sold. Sales price alone cannot be the sole bedrock under the laws of this state on which fair market value is bottomed. Sales prices are much like Scripture; they can be used to prove — or disprove — almost anything, according to the viewpoint of the citator of such Scripture.

State ex rel. Colding v. Tax Assessor, 26 Fla.Supp. 104, 106 (Fla.20th Cir.Ct.1966); aff’d sub nom., State ex rel. Conboy v. Colding, 200 So.2d 246 (Fla.2d DCA), cert. denied, 204 So.2d 331 (Fla.1967).

Next, we observe that decisions by courts in other jurisdictions, which have addressed the adequacy of the number of Xerox sales, lend support for the conclusion we reach today. The decisions vary in accordance with the size of the market considered. Courts examining local markets have favored income capitalization; those reviewing the nationwide market have preferred list price minus depreciation. Finding in favor of Xerox and the income approach are: Xerox Corp. v. King County, 94 Wash.2d 284, 617 P.2d 412 (1980); Xerox Corp. v. County of Hennepin, 309 Minn. 239, 244 N.W.2d 135 (1976); finding against are: Xerox Corp. v. Board of Review of Cedar Rapids, 298 N.W.2d 416 (Iowa 1980); Xerox Corp. v. Board of Tax Review of the City of Hartford, 175 Conn. 301, 397 A.2d 1367 (1978); Xerox Corp. v. City of Jackson, 328 So.2d 330 (Miss.1976).

The courts in Minnesota and Washington, examining only local markets, deemed the sales too few in number to indicate market value. In King County, for example, the court pointed to five sales throughout the State of Washington; in County of Henne-pin, the court noted a total of four sales in Minnesota. In the Cedar Rapids case, on the other hand, the Supreme Court of Iowa dealt with nationwide sales of equipment at a fixed list price, and in Board of Tax Review of the City of Hartford, the Supreme Court of Connecticut ruled that 1,701 nationwide sales during a three-year period were sufficient to establish market value.

In the case before us, the small number of sales leads us to conclude that list price does not represent just valuation and that the income capitalization method must be utilized. We base our decision not on the small number of sales in the local market alone, but on the fact that, both locally and nationally, Xerox sold only two to three percent of the copiers and accessories it offered for sale.

Our decision is reinforced by the fact that the income approach is recommended by the State of Florida in its Manual of Instructions Standard Measures of Value Pertaining to the Assessment of Tangible Personal Property and Inventory, which provides:

INCOME APPROACH
When reliable market or cost data is not available for like properties, greater emphasis falls on the capitalization of net income method of appraisal. This approach is not recommended unless the income stream is clearly defined and attributable to the personal property under appraisal, as in the case of leased equipment. (emphasis added).

For these reasons, we conclude that Xerox met its burden of proof:

The tax assessment is presumed to be correct and in order to sustain his burden of proof in challenging such assessment, the taxpayer must present proof which excludes every hypothesis of legal assessment.

Homer v. Dadeland Shopping Center, Inc., 229 So.2d 834, 837 (Fla.1969); Calder Race Course, Inc. v. Overstreet, 363 So.2d 631, 634 (Fla.3d DCA 1978); see generally Rystrom v. Equitable Life Assurance Society, 416 So.2d 1133 (Fla.3d DCA March 31, 1982). The trial court impliedly found that the appraiser considered the factors defined by law as necessary to achieve just valuation. § 193.011, Fla.Stat. (1975). His review of the income factor should have forestalled the appraiser’s rejection of the income capitalization method because Xerox excluded every reasonable hypothesis of legality when it established the limited nature of the market supporting the appraisal. The absence of a foundation for the assessment shatters the presumption of correctness as a matter of law.

We hold that the absence of an established sales market for the Xerox equipment in question required the appraiser to utilize an income capitalization method as the only method which would assure a just valuation. Our decision does not necessarily approve the computations made by Xerox, however. On remand, the trial court may obtain the assistance of expert testimony or a special master competent in the analysis of cost-of-capital and cash-flow capitalization to compute an accurate assessment.

Reversed and remanded for further proceedings consistent with this opinion.

DANIEL S. PEARSON, Judge,

concurring.

Since I take Judge Baskin’s opinion to mean that, as a matter of law, there is no reasonable hypothesis to support the appraiser’s assessment and that, in the circumstances of this case, the only hypothesis which could be used to arrive at a legal assessment is the income capitalization method, I concur. See Bystrom v. Equitable Life Assurance Society, 416 So.2d 1133 (Fla.3d DCA 1982).

SCHWARTZ, J., concurs in the opinions of both BASKIN and DANIEL S. PEARSON, JJ.

      . The income capitalization method subtracts expenses from the amount of income the property is expected to produce. The remainder is then capitalized into present worth. Xerox maintains that this system produces average worth, which it contends is appropriate because its machines are not sold at list price.

      . Xerox leases three types of equipment: copier duplication machines, copier duplication machine accessories, and other products. Only the valuation of the basic machines and their accessories is disputed.

      . In City of Jackson, the court hesitated to approve income capitalization because it “is very complicated and subject to many variables that cannot be checked out by taxing authorities.” 328 So.2d at 333. Unlike the court in City of Jackson, we do not anticipate that the trial court will be unequal to the challenge of applying income capitalization, a procedure used extensively in real estate appraisals.

      . Section 193.011, Florida Statutes (1975) states:
      Factors to consider in deriving just valuation. — In arriving at just valuation as required under s.4, Art. VII of the State Constitution, the [property appraiser] shall take into consideration the following factors:
      (1) The present cash value of the property;
      (2) The highest and best use to which the property can be expected to be put in the immediate future and the present use of the property, taking into consideration any applicable local or state land use regulation and considering any moratorium imposed by executive order, law, ordinance, regulation, resolution, or proclamation adopted by any gov-emmental body or agency or the Governor when the moratorium prohibits or restricts the development or improvement of property as otherwise authorized by applicable law;
      (3) The location of said property;
      (4) The quantity or size of said property;
      (5) The cost of said property and the present replacement value of any improvements thereon;
      (6) The condition of said property;
      (7) The income from said property; and
      (8) The net proceeds of the sale of the property, as received by the seller, after deduction of all of the usual and reasonable fees and costs of the sale, including the costs and expenses of financing.


source: Caselaw Access Project

author: SHARP, Judge. COWART, Judge,

license: Public Domain

text:
    LAMAR-ORLANDO OUTDOOR ADVERTISING, Melweb Signs, Inc., Peterson Outdoor Advertising Corporation, Outdoor Advertising Art, Inc., and National Advertising Company, a subsidiary corporation of Minnesota Mining and Manufacturing Company, Appellants/Cross-Appellees, v. CITY OF ORMOND BEACH, a municipal corporation, Appellee/Cross-Appellant.
    Nos. 80-526, 80-530.
    District Court of Appeal of Florida, Fifth District.
    June 9, 1982.
    Rehearing Denied July 6, 1982.
    Michael D. Martin, Lakeland, for appellant/cross-appellee Lamar-Orlando Advertising.

      Gerald S. Livingston, Orlando, for appellants/cross-appellees Melweb Signs, Inc., Peterson Outdoor Advertising Corp., Outdoor Advertising Art and Nat. Advertising Co.
    Fred S. Disselkoen, Ormond Beach, for appellee/cross-appellant.
   SHARP, Judge.

Appellants are owners of outdoor advertising signs, or billboards, located on U.S. Highway # 1 (a federal aid primary highway) in the City of Ormond Beach, Florida. Their signs were lawfully erected and permitted by applicable State and Federal laws. In 1968, the City enacted an ordinance which made appellants’ signs nonconforming and required that they be removed within ten years. When appellants failed to remove their signs by 1978, the City sought a declaratory judgment to construe the ordinance and enforce removal of the signs. While the litigation was pending in the lower court, the City amended its sign ordinance by adopting a comprehensive zoning code. The parties amended their pleadings and stipulated that the court should construe and apply the new ordinance. It continued the ten year amortization period for removing appellants’ nonconforming signs, and continued to prohibit appellants’ signs within the City. Section 200.00 of the Ordinance defines “billboard” and “off-site” signs as follows:

Sign, Billboard. Any sign that is erected and maintained by an advertising business or service for the purpose of advertised services, accommodations or activities that are not available on the premises on which the sign is located.
Sign, Off-Site. Any sign other than a billboard relating in its subject matter to the commodities, accommodations, services, or activities on premises other than the premises on which the sign is located.
“Sign, On-Site,” which is not among the prohibited group, is defined as: “Any sign relating in its subject matter to the commodities, accommodations, services or activities on the premises on which it is located.”

The lower court entered a final summary judgment in favor of the City, upholding the validity of Ormond’s Ordinance against appellants’ attacks on its constitutionality and its possible preemption by state and federal laws. However, the court ruled in favor of the appellants that the enforcement remedy sought by the City had been preempted by section 479.15(3), Florida Statutes (1979). We sustain the lower court in all respects, except for its conclusions regarding enforcement.

The parties raise four issues in this case:

I. Does an ordinance which prohibits all off-site advertising by billboards exceed the legitimate scope of a City’s police-powers because it is based primarily on aesthetic considerations?
II. Does an ordinance which allows on-site advertising signs (including billboards within various limits), but which prohibits all off-site advertising signs (including billboards), constitute an unreasonable and hence unconstitutional classification?
III. Are the appellants entitled to receive compensation upon the forced removal of their signs?
IV. Do the Federal Highway Beautification Act and the Florida Outdoor Advertising Act preempt the power of the cities to enact ordinances regulating or prohibiting signs more strictly than those laws; and do they preempt the enforcement provision of the ordinance?

We will discuss each point in the balance of this opinion.

I.

DOES AN ORDINANCE WHICH PROHIBITS ALL OFF-SITE ADVERTISING BY BILLBOARDS EXCEED THE LEGITIMATE SCOPE OF A CITY’S POLICE-POWERS BECAUSE IT IS BASED PRIMARILY ON AESTHETIC CONSIDERATIONS?

The appellants argue that prohibition of billboards by a city’s zoning ordinance throughout the entire city exceeds the city’s police-power because the prohibition must be justified on aesthetic grounds rather than public safety, health and welfare. Earlier in the 20th century aesthetics was deemed by some courts as a suspect or second-rate basis for the exercise of the police-power. But urban living has become increasingly complex and has produced problems of crowding and blight unforeseen in those simpler times. Those changes have brought about an expanded view of the police power, and most courts in this decade recognize aesthetics as a valid part of the general welfare for the preservation of which, the police power may legitimately be exercised. Justice Douglas wrote in Berma n v. Parker, 348 U.S. 26, 33, 75 S.Ct. 98, 102, 99 L.Ed. 27 (1954), that:

The concept of the public welfare is broad and inclusive .... [T]he values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well balanced as well as carefully patrolled.

And in the Federal Supreme Court’s most recent pronouncement on the subject, four Justices in the plurality opinion said there could be no “substantial doubt” that the “twin goals” of “traffic safety and appearance of the city are substantial governmental goals.” Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 69 L.Ed.2d 800, 101 S.Ct. 2882, 2892, 69 L.Ed.2d 800 (1981).

In this case, the lower court found that the sign ordinance under attack sought to enhance Ormond’s scenic qualities for aesthetic purposes, and that “as related to tourism, economic and cultural development, . .. [the ordinance] has a legitimate purpose in advancement of the community as a social, economic, and political entity.”

The record shows that the City of Or-mond Beach is primarily a residential community which contains some commercial areas but no heavy industry, and tourism is one of its primary businesses. It has several buildings and places of historic interest and contains much natural scenic beauty. In communities like Ormond, the Florida Courts have recognized aesthetics as a valid basis for zoning and sign ordinances, such as the one involved in this case. In Merritt v. Peters, 65 So.2d 861 (Fla.1953), the Florida Supreme Court sustained the validity of a zoning ordinance which limited the size of signs in a special business district in Miami. The court held:

We have no hesitancy in agreeing with him that the factors of health, safety, and morals are not involved in restricting the proportions of a sign board, but we disagree with him in his position that the restriction cannot be sustained on aesthetic grounds alone.

65 So.2d at 862. Most recently, our Supreme Court has held aesthetics alone is a legitimate justification for the exercise of the police power in this context. City of Lake Wales v. Lamar Advertising Association, 414 So.2d 1030 (Fla.1982).

The appellants argue that although aesthetics may be a valid basis today for limiting or regulating signs, it is not a sufficiently strong ground to prohibit them. Most courts which have considered this issue have rejected making any distinction between the power to regulate and the power to prohibit, with regard to the scope of the police power or legislative discretion given cities to pass zoning ordinances.

However, the Florida Supreme Court in Sunad, Inc. v. City of Sarasota, 122 So.2d 611 (Fla.1960), suggested that zoning for aesthetic purposes may fail if it has the effect of putting a person “out of business” or severely “crippling” his business. In this case the record shows that the appellants do business on a multi-state basis, and that less than one percent of their respective gross incomes will be affected by Ormond’s ordinance. We conclude the appellants have failed to carry their burden to show the ordinance exceeds the scope of the City’s police powers.

II.

DOES AN ORDINANCE WHICH ALLOWS ON-SITE ADVERTISING SIGNS (INCLUDING BILLBOARDS WITHIN VARIOUS LIMITS) BUT WHICH PROHIBITS ALL OFF-SITE ADVERTISING SIGNS (INCLUDING BILLBOARDS), CONSTITUTE AN UNREASONABLE AND HENCE UNCONSTITUTIONAL CLASSIFICATION?

The appellants argue that it is unreasonable and discriminatory for an ordinance to permit on-site advertising signs under circumstances where the same kinds of off-site advertising signs are prohibited. Or-mond’s earlier Ordinance No. 68-3 prohibited all “billboard type signs”, which were generally described as signs which advertised “goods or services not sold or available on the premises on which the sign is located.” Although it may have been debatable under Ordinance No. 68-3 whether on-site billboards were also barred, the Amended Ordinance No. 78-35, which controls this case, makes it very clear that the term “billboards” only means off-site advertising signs, and only “billboards” and other kinds of off-site advertising signs are completely prohibited.

Most state courts that have considered the question of whether or not off-site advertising signs can be treated differently than on-site signs have concluded there are practical and valid distinctions between the two kinds of signs, justifying their separate classification. Some courts reason that since the discrimination does not involve a “suspect” class, the proper judicial measure is whether or not there is any reasonable basis for the classification, and if there is, it should be upheld. In State v. National Advertising Co., 387 A.2d 745, 750 (Me.1978), the court quoted the U.S. Supreme Court in Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 55 L.Ed. 369, 31 S.Ct. 337 (1911):

A classification having some reasonable basis does not offend against that clause [14th Amendment] merely because it is not made with mathematical nicety, as because in practice it results in some inequality .... When the classification in such a law is called in question, if any state of facts reasonably can be conceived that would sustain it, the existence of that state of facts at the time the law was enacted must be assumed ... One who assails the classification in such a law must carry the burden of showing that it does not rest upon any reasonable basis, but is essentially arbitrary.

Merely pointing out the discrimination as was done in this case, will not suffice.

Other courts have frankly taken judicial notice that off-site advertising is more in-trustive and obnoxious than on-site advertising, and have accorded cities the right to prohibit or regulate off-site more stringently than on-site. In John Donnelly & Sons v. Campbell, 639 F.2d 6 (1st Cir. 1980), the court held the allowance of on-site advertising where off-site was prohibited did not invalidate the statute’s “aesthetic position.” It said the on-site business had already “violated” the landscape, and little more damage would result from the allowance of a sign, where the statute also regulated the size and placement of on-site advertising.

In Ghaster Properties, Inc. v. Preston, 176 Ohio St. 425, 200 N.E.2d 328 (1964), the court distinguished off-site advertising as taking advantage of an opportunity to intrude upon the vision of motorists on public roads rather than exercising natural rights inherent in the land itself.

The right asserted is not to own and use land or property, to live, to work, or to trade.... [I]ts main feature is the su-peradded claim to use private land as a vantage ground from which to obtrude upon all the public traveling upon highways, whether indifferent, reluctant, hostile or interested, an unescapable propaganda concerning private business with the ultimate design of promoting patronage of those advertising. Without this superadded claim, the other rights would have no utility in this connection ...

200 N.E.2d at 334, quoting with approval from, General Outdoor Advertising Co. v. Department of Public Works, 289 Mass. 149, 193 N.E. 799 (1935).

The court in United Advertising Corp. v. Metuchen, 42 N.J. 1, 198 A.2d 447 (1964) declared that on-site advertising was more tolerable than off-site, because it was part of the business being operated on the land, and the sensibilities of the owners and neighbors would offer a restraint in many cases, which off-site advertisers would not have.

There are obvious differences between an on-premises sign and an off-premise sign. Even if the baleful effect of both be in fact the same, still in one case the sign may be found tolerable because of its contribution to the business or enterprise on the premises. The hurt is thus supported by the need or gain not present in the case of the off-premise sign. This difference, it seems to us, suffices to support the classification. 198 A.2d at 450.

Recently, the United States Supreme Court also considered this issue of reasonable classification in Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 101 S.Ct. 2882, 69 L.Ed.2d 800 (1981). One of the constitutional challenges to San Diego’s ordinance was that it allowed on-site advertising where it forbad off-site advertising. Confirming its prior pronouncements the court held that the City could ban off-site billboards for traffic safety and aesthetic reasons.

In the first place, whether on-site advertising is permitted or not, the prohibition of off-site advertising is directly related to the stated objective of traffic safety and esthetics. This is not altered by the fact that the ordinance is underinclusive because it permits on-site advertising. Second, the City may believe that off-site advertising with its periodically changing content, presents a more acute problem than does on-site advertising.

101 S.Ct. at 2894. The Court ultimately held the ordinance unconstitutional because the ordinance violated the First Amendment. In this case, appellants have neither appealed nor briefed the First Amendment issue, and we decline to consider it.

The appellants argue that Sunad, Inc. v. City of Sarasota, 122 So.2d 611 (Fla.1960) established the rule in Florida that it is unconstitutional because unreasonable and discriminatory, to treat off-site advertising differently than on-site. It is not clear that Sunad stands for that proposition, although our sister court has read Sunad in this manner. In Sunad the city ordinance discriminated between on and off-site advertising signs, but it also discriminated between the sizes of wall and other kinds of signs in both categories. Although the Court cited no precedents, Sunad is consistent with Eskind v. City of Vero Beach, 159 So.2d 209 (Fla.1963) where an ordinance which discriminated between the kinds of on-site advertising permissible was declared unconstitutional. Vero’s ordinance forbad on-site advertisement of motel rates, but allowed all other kinds of motel advertising, such as “TV; A/C; pool, etc.” The court in Eskind held the ordinance restricted competition between the economy and luxury motels in Vero, thereby damaging a segment of a class of business and favoring another, without any valid reason for doing so.

In Rotenberg v. City of Ft. Pierce, 202 So.2d 782 (Fla. 4th DCA 1967), the court upheld an ordinance requiring junkyards to be screened. In reply to the argument that the junkyard business was being singled out and unreasonably burdened, the court said:

A statute enacted in the exercise of the police power need not apply equally to all persons in the state but only to all persons similarly circumstanced. (Emphasis supplied).

202 So.2d at 785. Other Florida appellate courts have indicated they do not think on-site and off-site advertisers are “similarly circumstanced” and neither do we.

We agree with the lower court’s analysis of this issue. Judge John Up-church held:

Sunad ... examined whether selective prohibitions within the category of non-point-of-sale locations constituted an unreasonable and discriminatory classification system. Wall signs were permitted at non-point-of-sale locations. They could be 300 square feet in size. A sign of the same size on a billboard was prohibited. The court saw no rational basis to discriminate against billboards and in favor of wall signs at non-point-of-sale locations. Hence the pronouncement that the ordinance was unreasonable and discriminatory.
Contrasted with the Sarasota ordinance, the Ormond Beach ordinance is a model of clarity. No off-site advertising is permitted, period. The prohibition is uniformly applied to all types of off-site (non-point-of-sale) advertising.
* * * * * *
It is illogical and unreasonable to be forced to link the concept of off-site advertising and point-of-sale advertising when discussing regulation .... It is absurd to think that an appropriate governmental authority cannot regulate off-site advertising without simultaneously regulating store-front signs in identical fashion.

Since the bulk of this opinion was written, our Supreme Court has made it clear that treating on-site and off-site signs differently solely on the basis of aesthetics is constitutionally permissible. City of Lake Wales v. Lamar Advertising Association, 414 So.2d 1030 (Fla.1982).

III.

ARE THE APPELLANTS ENTITLED TO RECEIVE “COMPENSATION” UPON THE FORCED REMOVAL OF THEIR SIGNS?

We do not reach the question of whether or not our constitutions require that appellants be compensated for the removal of their nonconforming signs because it is clear that under both the state and federal laws, compensation must be paid appellants.

Section 479.24(1) provides:

Compensation shall be paid upon the removal of all signs lawfully in existence on December 8, 1971 or signs lawfully erected which later become nonconforming.

In addition section 479.15(2) provides:

No municipality, county, local zoning authority, or other political subdivision shall remove, or cause to be removed, any advertisement or advertising structure without paying compensation in accordance with s. 479.24(1).

The appellants’ signs were erected prior to 1971, and were lawful and permitted under Chapter 479. They became “nonconforming” in 1968 when Ormond passed its first Ordinance, but they were not erected illegally. It seems clear under this statute that appellants must be paid compensation upon the removal of their signs.

Even if Florida’s statute did not require payment of just compensation, recent amendments to the Federal Highway Beautification Act appear to require such payment for removal of signs along federal highways. The amended section 23 U.S.C. § 131(g), provides:

Just compensation shall be paid upon the removal of any outdoor advertising sign, display or device lawfully erected under state law and not permitted under subsection (c) of this section, whether or not removed pursuant to or because of this section. (Emphasis supplied).

The amendment was apparently intended to overcome a decision of the Federal Highway Administration holding a state could not be penalized for failure to have effective control of outdoor advertising when a municipality by general zoning ordinance provided for the removal of signs adjacent to federal highways without payment of just compensation.

IV.

DO THE FEDERAL HIGHWAY BEAUTIFICATION ACT AND THE FLORIDA OUTDOOR ADVERTISING ACT PREEMPT THE POWER OF THE CITIES TO ENACT ORDINANCES REGULATING OR PROHIBITING SIGNS MORE STRICTLY THAN THOSE LAWS; AND DO THEY PREEMPT THE ENFORCEMENT PROVISION OF THE ORDINANCE?

The Federal Highway Beautification Act was enacted by Congress in 1965 for the purpose of controlling outdoor advertising signs and devices along the federal interstate and primary highway systems, “to promote the safety and recreational value of public travel, and to preserve National beauty.” The Act embodied a “carrot and stick” approach to the states to handle and enforce the federal guidelines and regulations, by requiring the states to establish “effective control” over signs within 660 feet of the road right of way by 1968 or face a ten percent reduction in federal highway funds appropriated for the respective state. Another provision entitled the states who entered into an agreement with the Secretary of Commerce (now the Secretary of Transportation) to control outdoor advertising, to receive bonus payments. Florida complied by passing Chapter 479 and entering into the requisite Agreement.

It seems clear that the federal act contemplates that the states may pass statutes and the cities ordinances, which are more stringent (but not less) than the federal provisions and regulations. Section 23, U.S.C. § 131(k) expressly states:

Subject to compliance with section (g) of this section for the payment of just compensation, nothing in this section shall prohibit a state from establishing standards imposing stricter limitations with respect to signs, displays, and devices on the Federal-aid highway systems than those established under this section.

Section 23 U.S.C. § 131(d) also contemplates some deviation from the federal guidelines in areas subject to industrial or commercial zoning. The Act contains no enforcement mechanisms, depending clearly on the states to carry out the federal regulations, except for the requirement discussed in Part III of this opinion regarding payment of compensation.

The federal courts which have considered this issue, have all concluded that no preemption as to stricter regulation was intended or imposed on state statutes or municipal ordinances, by the Federal Act. See Art Neon Co. v. The City and County of Denver, 488 F.2d 118 (10th Cir. 1973); E. B. Elliot Advertising Co. v. Metropolitan Dade County, 425 F.2d 1141 (5th Cir. 1970). State courts have uniformly reached a similar conclusion. Our sister court also reached this conclusion in City of Lake Wales v. Lamar Advertising Association, 399 So.2d 981 (Fla. 2d DCA 1981), reversed on other grounds, 414 So.2d 1030 (Fla.1982).

We agree.

The question of whether the state statute (Ch. 479) preempts the field of regulation of signs on highways has been resolved in a similar fashion. The statute contemplates that no zoning ordinance may stand that is less stringent than Chapter 479. Section 479.15(1) provides:

No zoning board or commission nor any other public officer or agency shall permit any advertisement or advertising structure which is prohibited under the provisions of this chapter....

But Chapter 479 clearly contemplates that municipalities may enact stricter rules than those imposed by the state law, because the final clause of section 479.15(1) prohibits the Department of Transportation from permitting any advertisement which is “prohibited by any other public board, officer or agency in the lawful exercise of its or their powers.” Further, section 479.155 expressly provides:

The provisions of Ch. 78-138, laws of Florida, shall not be deemed to supersede the rights and powers of counties and municipalities to establish outdoor advertising or sign ordinances.

Other state courts have similarly concluded their statutes do not prevent enforcement of stricter zoning ordinances. We agree and the lower court also reached this conclusion.

The lower court concluded, however, that Chapter 479 preempts the enforcement of municipal zoning ordinances, although not the passage of stricter regulations. It relied on the wording of section 479.15(3) which provides:

(3) The removal of outdoor advertisements or advertising structures adjacent to roads or highways on the federal interstate or primary highway system shall be the sole responsibility of the Department of Transportation. (Emphasis supplied).

Other provisions of Chapter 479 clearly contemplate that municipalities have enforcement powers to carry out their own ordinances. Section 479.15(1) refers to signs “prohibited by” cities or other public bodies, and section 479.15(2) provides “No municipality, county, local zoning authority, or other political subdivision shall remove, or cause to be removed, any advertisement ...” (Emphasis supplied). Further, section 479.10 entitled “Removal” requires that a sign owner remove his own sign within thirty days after expiration of his permit. This section is further elaborated upon by FIa.Admin.Code Rule 14-10.05(2)(h).

The construction of a statute should seize upon the most reasonable and logical interpretation where two possibilities vie for selection. Here it does not appear reasonable that the state would allow municipalities to more stringently regulate signs in their jurisdictions and then deprive them of any method of enforcement. That is tantamount to giving a right without a remedy, which in legal currency is worth nothing. We conclude that the City of Ormond Beach has the right to enforce its zoning ordinance in this case either by calling on the Department of Transportation to remove the signs, or by obtaining a court order directing the owners to remove their own signs.

For the reasons stated in this opinion the lower court’s judgment is affirmed in part; and reversed in part.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

ORFINGER, J., concurs.

COWART, J., dissents with opinion.

COWART, Judge,

dissenting:

First, I cannot agree that our government can legally regulate, restrict and prohibit the lawful use of private property on the basis of aesthetics, that is, on the basis of what a governmental body, official or employee may perceive as having, relating to, or dealing with what is beautiful and what is not. What qualifications does government have in that branch of philosophy dealing with the nature of the beautiful and with judgments concerning beauty? Which philosophical theory or concept of art or beauty will be used? Aesthetics is a most subjective field and, as a basis for the exercise of regulatory police power, will, when coupled with other misapplied zoning concepts, serve as an excuse for the most arbitrary and despotic acts of government.

Second, assuming that aesthetics is a proper goal for regulation, there is no distinction between on-site and off-site signs related to aesthetics. Certainly, practical, functional distinctions may be made between on-site and off-site signs, but the only real way to distinguish between the two is through their content, as the ordinance itself does. Assuming that “aesthetics” is a proper goal of a city ordinance, what possible relationship can the sign’s message have to the sign’s aesthetic impact? Off-site signs are not necessarily or inherently more ugly, intrusive or obnoxious than on-site signs. Consequently, off-site sign owners are denied equal protection of the law when compared with similarly situated owners of on-site signs. Commercial speech is protected by the First Amendment, albeit to a lesser degree than noncommercial speech, and the regulation, and any distinction made by the regulation, must directly advance the governmental interest asserted, in this case aesthetics. As the ordinance’s content-based classification bears no relation to the interest asserted, the ordinance must fall. Sophisticated arguments making immaterial distinctions between on-site and off-site signs serve only to mask the real objective of the regulation. On-site signs are generally owned by the on-site business which is owned by, employs and serves the local citizenry, whereas off-site signs are most frequently owned by non-resident sign companies. The aim of the ordinance is to outlaw signs owned by non-residents in favor of those owned by residents, obviously a constitutionally impermissible goal.

Third, assuming that aesthetics is a proper goal for regulation and that on-site and off-site signs can be validly distinguished on the basis of aesthetics, which is as far as any case has gone, the ordinance does not even treat all off-site signs the same. All signs which advertise matters not available on the premises on which the sign is located (off-site signs) are prohibited. However, the ordinance makes a distinction between “billboards,” defined as off-site signs erected and maintained by an advertising business or service, and all other off-site signs. Owners of these latter are given a five year period for removal of the sign; billboards must be immediately removed. Just as there is no difference in beauty between two identical signs, one relating to an on-site business and the other not, there is no aesthetic distinction between two identical signs, both advertising off-site matters, where one is erected and maintained by an advertising business and the other is maintained by another type of business, a private person or a non-business entity. Since the distinction is drawn on the basis of who owns the sign, the ordinance constitutes a blatant denial of equal protection.

Fourth, if the ordinance outlawing billboards is upheld, I agree that the billboard owner should be compensated for deprivation of his property. I suggest, however, that this is a recognition of a “taking” of not only the billboard owner’s property, but also the valuable property right of each and every landowner in the city to lease space to a sign company for maintenance of a sign. Such a taking should be by eminent domain and not by a zoning ordinance and each landowner should be compensated for the taking of this right.

Fifth, by effectively prohibiting all signs, save those advertising on-site business matters, the regulation deprives landowners of their First Amendment freedom to express to the world their views concerning philosophy, politics or religion. Signs advertising such messages are condemned even more heavily by the ordinance if the speaker hires a commercial advertising company to erect and maintain a sign carrying his message. Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 101 S.Ct. 2882, 69 L.Ed.2d 800 (1981), held that an ordinance banning billboards which includes signs containing “non-commercial” messages protected under the First Amendment within its prohibition is unconstitutional as violative of the First Amendment.

This ordinance well illustrates the danger of permitting governmental zoning authority to be based on anything so nebulous as aesthetics, which concept creates but a cover under which any manner of arbitrary discrimination can exist that would not otherwise be permitted if asserted on its true basis. I would hold the ordinance unconstitutional.

      . Section 2, City of Ormond Beach Ordinance No. 68-3 defined “outdoor advertising signs” as: “signs erected and maintained by an advertising business or service in the form of a ground, wall, or roof sign, upon which advertising matter may be displayed, generally advertising goods or services not sold or available on the premises on which the sign is located. These types of signs are generally referred to as billboards, the surface of which is sold, rented or leased, for the display of advertising material.” Section 8(5) prohibited “billboard type signs” within the city limits, “except for construction or subdivision signs, as permitted in this ordinance.”

      . City of Ormond Beach Ordinance No. 78-35 prohibits various kinds of signs within the city limits:

        § 826.03 Prohibited Signs

      It shall be a violation of this Ordinance to erect or maintain the following signs:
      A.Signs not specifically listed in the District Regulations and signs erected on public property or over public rights-of-way except as permitted in Section 825.01(j) and (k);
      B. Signs attached to or painted onto a vehicle parked on a public thoroughfare for the sole purpose of advertising.
      C. Portable signs;
      D. Billboards;
      E. Off-site signs;
      F. Revolving signs;
      G. Flashing signs excluding time and temperature signs that do not exceed a 75 square foot area;
      H. Snipe signs;
      I. Wind signs;
      J. Animated signs;
      K. Signs that are painted to any part of a building.

      . Ch. 479, Fla.Stat. (1979) and 23 U.S.C. § 131.

      . § 479.15(3) provides:
      The removal of outdoor advertisements or advertising structures adjacent to roads or highways on the federal interstate or primary highway systems shall be the sole responsibility of the Department of Transportation. (Emphasis supplied).

      . See the discussion in Murphy v. Town of Westport, 131 Conn. 292, 40 A.2d 177 (1944).

      . See Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926); Mugler v. Kansas, 123 U.S. 623, 8 S.Ct. 273, 31 L.Ed. 205 (1887). To illustrate how changes in living conditions from decade to decade bring about changes in the legitimate scope of the “police power,” the court in Mugler discussed an older San Francisco ordinance involved in Barbier v. Connolly, 113 U.S. 27, 5 S.Ct. 357, 28 L.Ed. 923 (1884), which prohibited, within certain districts of the city, washing and ironing in public laundries and wash houses between 10 p. m. and 6 a. m.

      . John Donnelly & Sons v. Campbell, 639 F.2d 6 (1st Cir. 1980); E. B. Elliott Advertising Co. v. Metropolitan Dade County, 425 F.2d 1141 (5th Cir. 1970); Metromedia, Inc. v. San Diego, 26 Cal.3d 848, 164 Cal.Rptr. 510, 610 P.2d 407 (1980) rev’d on other grounds, 453 U.S. 490, 101 S.Ct. 2882, 69 L.Ed.2d 800 (1981); Veterans of Foreign Wars v. Steamboat Springs, 195 Colo. 44, 575 P.2d 835 (1978); Mississippi Highway Comm. v. Roberts Enterprises, Inc., 304 So.2d 637 (Miss.1974); United Advertising Corp. v. Metuchen, 42 N.J. 1, 198 A.2d 447 (1964); Suffolk Outdoor Advertising Co. v. Hulse, 43 N.Y.2d 483, 402 N.Y.S.2d 368, 373 N.E.2d 263 (1977); Modjeska Sign Studios, Inc. v. Berle, 43 N.Y.2d 468, 402 N.Y.S.2d 359, 373 N.E.2d 255 (1977); Cromwell v. Ferrier, 19 N.Y.2d 263, 279 N.Y.S.2d 22, 225 N.E.2d 749 (1967); Newman Signs, Inc. v. Hjelle, 268 N.W.2d 741 (N.D.1978); Lubbock Poster Co. v. City of Lubbock, 569 S.W.2d 935 (Tex.Civ.App.1978). But see, Metromedia, Inc. v. City of Des Plaines, 26 Ill.App.3d 942, 326 N.E.2d 59 (1975).

      . Ordinance No. 68-3 stated its legitimate purpose was:
      to protect and preserve the character and appearance of the several districts within the City of Ormond Beach ....
      Ordinance No. 78-35 (the comprehensive citywide zoning ordinance) stated its purpose was:
      to lessen congestion in the streets, promote health, safety and the general welfare, to provide adequate light and air, to prevent the overcrowding of land .... to preserve the existing environment that realizes the greatest possible use and enjoyment of land on individual properties, balanced against the necessary protection of the values of buildings and land and the use and enjoyment of land on adjacent properties, with the object of promoting and protecting the public welfare through the regulation of land use and the process of land development.

      . We question whether only beautiful or unb-lighted communities should be allowed to exercise their “police powers” to accomplish aesthetic goals. Once marred, should a community be forever condemned to ugliness? Attracting the influx of new business or residents bears just as important an impact on a city’s economic welfare as maintaining an already established tourist trade. See Sunad, Inc. v. City of Sarasota, 122 So.2d 611 (Fla.1960); Moviematic Industries Corp. v. Board of County Commissioners, 349 So.2d 667 (Fla. 3d DCA 1977); Rotenberg v. City of Ft. Pierce, 202 So.2d 782 (Fla. 4th DCA 1967); State ex rel. Boozer v. City of Miami, 193 So.2d 449 (Fla. 3d DCA 1967).

        . Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513 (1949); St. Louis Poster Advertising Co. v. St. Louis, 249 U.S. 269, 39 S.Ct. 274, 63 L.Ed. 599 (1919); E. B. Elliott Advertising Co. v. Metropolitan Dade County, 425 F.2d 1141 (Fla. 5th Cir. 1970); Metromedia, Inc. v. City of San Diego, 26 Cal.3d 848, 164 Cal.Rptr. 510, 610 P.2d 407 (1980), rev’d on other grounds, 453 U.S. 490, 101 S.Ct. 2882, 69 L.Ed.2d 800 (1981); Inhabitants of Boothbay v.

        National Advertising Co., 347 A.2d 419 (Me.1975); Suffolk Outdoor Advertising Co. v. Huise, 43 N.Y.2d 483, 402 N.Y.S.2d 368, 373 N.E.2d 263 (1977); Cromwell v. Ferrier, 19 N.Y.2d 263, 279 N.Y.S.2d 22, 225 N.E.2d 749 (1967). But see Combined Communication Corp. v. City and County of Denver, 189 Colo. 462, 542 P.2d 79 (1975); Hav-A-Tampa Cigar Co. v. Johnson, 149 Fla. 148, 5 So.2d 433 (1941).

      . City of Miami Beach v. Ocean & Inland Co., 147 Fla. 480, 3 So.2d 364 (1941); Blank v. Town of Lake Clarke Shores, 161 So.2d 683 (Fla. 2d DCA 1964).

      . U.S.Const. amend. V, XIV; Art. I, § 9, Fla. Const.

      . § 8(5).

      . § 2 Ord. 68-3.

      . §§ 101.00, 826.039.04 Ord. 78-35.

      . E. B. Elliott Advertising Co. v. Metropolitan Dade County, 425 F.2d 1141 (5th Cir. 1970); Metromedia, Inc. v. City of San Diego, 26 Cal.3d 848, 164 Cal.Rptr. 510, 610 P.2d 407 (1980), rev’d on other grounds, 453 U.S. 490, 101 S.Ct. 2882, 69 L.Ed.2d 800 (1981); Inhabitants of Boothbay v. National Advertising Co., 347 A.2d 419 (Me.1975); Donnelly Advertising Corp. v. City of Baltimore, 279 Md. 660, 370 A.2d 1127 (1977). But see Metromedia, Inc. v. City of Des Plaines, 26 Ill.App.3d 942, 326 N.E.2d 59 (1975).

      . See Lubbock Poster Co. v. City of Lubbock, 569 S.W.2d 935 (Tex.Civ.App.1978).

      . Veterans of Foreign Wars v. Steamboat Springs, 195 Colo. 44, 575 P.2d 835 (1978); John Donnelly & Sons, Inc. v. Outdoor Advertising Board, 369 Mass. 206, 339 N.E.2d 709 (1975); Cromwell v. Ferrier, 19 N.Y.2d 263, 279 N.Y.S.2d 22, 225 N.E.2d 749 (1967); Newman Signs, Inc. v. Hjelle, 268 N.W.2d 741 (N.D.1978).

      . St. Louis Poster Advertising Co. v. City of St. Louis, 249 U.S. 269, 39 S.Ct. 274, 63 L.Ed. 599 (1919).

      . See State ex rel Randall v. Miami Coin Club, 88 So.2d 293 (Fla.1956); Brown v. City of Miami Beach, 54 So.2d 689 (Fla.1951).

      . City of Lake Wales v. Lamar Advertising Association, 399 So.2d 981 (Fla. 2d DCA 1981), rev’d in part, 414 So.2d 1030 (Fla.1982); City of Naples v. Polk, 346 So.2d 1076 (Fla. 2d DCA 1977).

        . Brazil v. Div. of Administration, State Dep’t. of Transp., 347 So.2d 755 (Fla. 1st DCA 1977), disapproved on other grounds, LaPointe Outdoor Advertising v. Florida Dep’t. of Transp., 398 So.2d 1370 (Fla.1981); State ex rel. Boozer v. City of Miami, 193 So.2d 449 (Fla. 3d DCA 1967).

      . U.S.Const. amend. V, XIV; Art. I, §§ 2, 9, Fla.Const.

      . Some courts have held that amortization of nonconforming signs, if the period is reasonably long enough to allow the sign owner to recoup his investment, is a valid alternative to compensation. City of Doraville v. Turner Communications Corp., 236 Ga. 385, 223 S.E.2d 798 (1976); Inhabitants of Boothbay v. National Advertising Co., 347 A.2d 419 (Me.1975); Donnelly Advertising Corp. v. City of Baltimore, 279 Md. 660, 370 A.2d 1127 (1977); Suffolk Outdoor Advertising Co. v. Hulse, 43 N.Y.2d 483, 402 N.Y.S.2d 368, 373 N.E.2d 263 (1977); Modjeska Sign Studios, Inc. v. Berle, 43 N.Y.2d 468, 402 N.Y.S.2d 359, 373 N.E.2d 255 (1977); Newman Signs, Inc. v. Hjelle, 268 N.W.2d 741 (N.D.1978); Lubbock Poster Co. v. City of Lubbock, 569 S.W.2d 935 (Tex.Civ.App.1978). However, the state statutes involved in those cases are different than Florida’s. Other state statutes, like Florida’s, preempt and require payment of compensation in spite of amortization provisions in the ordinances. Metromedia, Inc. v. City of San Diego, 26 Cal.3d 848, 164 Cal.Rptr. 510, 610 P.2d 407 (1980), rev’d on other grounds, 453 U.S. 490, 101 S.Ct. 2882, 69 L.Ed.2d 800 (1981).

      . See LaPointe Outdoor Advertising v. Florida Dep’t. of Transp., 398 So.2d 1370 (Fla.1981); Walker v. State Dep’t. of Transp., 366 So.2d 96 (Fla. 1st DCA 1979).

      . H.R.No. 1485, 95th Cong., 2d Sess. 1, 15, reprinted in [1978] U.S.Code Cong. & Ad.News 6575, 6591.

      . 23 U.S.C. §§ 131, 135, 136.

      . 23 U.S.C. § 131(b).

      . Fla.Admin.Code Rule 14-10.09.

      . City of Doraville v. Turner Communications Corp., 236 Ga. 385, 223 S.E.2d 798 (1976); State v. National Advertising Co., 387 A.2d 745 (Me.1978); Donnelly Advertising Corp. v. City of Baltimore, 279 Md. 660, 370 A.2d 1127 (1977); Suffolk Outdoor Advertising Co. v. Hulse, 43 N.Y.2d 483, 402 N.Y.S.2d 368, 373 N.E.2d 263 (1977); Ackeriey Communications, Inc. v. City of Seattle, 92 Wash.2d 905, 602 P.2d 1177 (1979).

        . E. B. Elliott Advertising Co. v. Metropolitan Dade County; City of Lake Wales v. Lamar Advertising Association, 414 So.2d 1030 (Fla.1982).

      . City of Doraville v. Turner Communications Corp., 236 Ga. 385, 223 S.E.2d 798 (1976); Ackerley Communications, Inc. v. City of Seattle, 92 Wash.2d 905, 602 P.2d 1177 (1979).

      . See In Re Ruff’s Estate, 159 Fla. 777, 32 So.2d 840 (1947).

      . Ormond Beach considers off-site signs to be “unaesthetic.” In contrast, Miami requires every development in the downtown area to have “one or more graphic forms utilizing variable signs, lighting, banners, kinetic sculpture, fountains, and similar forms of animated images visible during day and night from Biscayne Boulevard.” The Wall Street Journal, May 20, 1982, 1, col. 6, at 20, col. 1. To paraphrase a well-worn truth: “Aesthetics is in the eye of the commission.”

      . Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 101 S.Ct. 2882, 69 L.Ed.2d 800 (1981), merely held that the distinction did not violate the First Amendment. It did not consider whether the distinction violated constitutional equal protection guaranties.

      . Central Hudson Gas & Electric Corp. v. Public Service Comm. of New York, 447 U.S. 557, 100 S.Ct. 2343, 2351, 65 L.Ed.2d 341 (1980).

      . See, e.g., Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 101 S.Ct. 2882, 69 L.Ed.2d 800 (1981); City of Lake Wales v. Lamar Advertising Assoc., 414 So.2d 1030 (Fla.1982).


author: BASKIN, Judge.

text:
    EAST COAST INSURANCE COMPANY, Appellant, v. George F. COOPER and Ruth I. Cooper, etc., et al., Appellees.
    Nos. 81-25, 81-26 and 81-264.
    District Court of Appeal of Florida, Third District.
    June 15, 1982.
    Rehearing Denied July 21, 1982.
    See also, Fla.App., 405 So.2d 1010.

      Pyszka & Kessler, Greene & Cooper and Robyn Greene, Miami, for appellant.
    Beckham & McAliley, Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow & Olin and Joel D. Eaton, Miami, for appellees.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   BASKIN, Judge.

In consolidated appeals, East Coast Insurance Company challenges the award to the Coopers of attorney’s fees; the amount of the award is not disputed. We affirm.

Mr. and Mrs. Cooper sued and recovered damages of $300,000 from IBI Security Service of Florida, Inc. (IBI-FLA) for personal injuries sustained when Cooper was shot. Cooper’s employer had entered into a contract with IBI-FLA, a Florida corporation, which required IBI-FLA to furnish security guards. The guards were not present on the day of the shooting. The Coopers sued both IBI-FLA and its insurer, Hartford Accident and Indemnity Company. Hartford paid $100,000 of the judgment. IBI-FLA, unable to satisfy the remainder, assigned its rights to the Coopers, enabling them to recover excess insurance from East Coast.

Pursuant to the assignment from IBI-FLA, the Coopers sued East Coast, alleging that East Coast was liable to IBI-FLA for excess coverage under a policy issued to IBI Security Service, Inc. (IBI-NY) in which it had failed to name IBI-FLA as an additional insured. The jury agreed that the East Coast policy insured IBI-FLA.

The Coopers had requested attorney’s fees pursuant to section 627.428, Florida Statutes (1977), and, at the conclusion of the trial, the court entered judgment of $200,000 for the Coopers “with their costs and attorneys [sic] fees to be assessed at a later date.... ” Subsequently, the court awarded the attorney’s fees which are the subject of these appeals.

The final judgment reserving the court’s jurisdiction to assess attorney’s fees at a later date fulfills the statutory requirement that fees be included in the judgment or decree rendered in the case. § 627.-428(3), Fla.Stat. (1977).

Section 627.428(1), Florida Statutes (1977) permits an award of attorney’s fees:

(1) Upon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of an insured or the named beneficiary under a policy or contract executed by the insurer, the trial court, or, in the event of an appeal in which the insured or beneficiary prevails, the appellate court, shall adjudge or decree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured’s or beneficiary’s attorney prosecuting the suit in which the recovery is had.

American National Insurance Co. v. DeCardenas, 181 So.2d 359 (Fla. 3d DCA 1965); see American Home Assurance Co. v. Keller Industries, 347 So.2d 767 (Fla. 3d DCA 1977), cert. denied, 360 So.2d 1249 (Fla.1978), cert. dismissed, 367 So.2d 1124 (Fla.1979).

In order to qualify for attorney’s fees, however, the Coopers were required not only to have obtained a judgment in their favor but also, under section 627.-401(2), Florida Statutes (1977) to hold a policy or contract issued for delivery or delivered in Florida. Section 427.421(1), Florida Statutes (1977) requires that a policy be furnished to an insured. Implicit in the jury determination that East Coast provided coverage was a finding that the policy had been issued for delivery in Florida. IBI-FLA’s principal place of business is located in Miami. The fact that the policy was actually delivered in New York is not significant to our determination that it was “issued for delivery” to a Florida resident. Based upon our finding that the policy should have been issued for delivery in Florida, we hold that the Coopers qualified to obtain attorney’s fees.

We reject the argument that East Coast waived its right to contest the Coopers’ entitlement to attorney’s fees by its failure to file a motion to strike the prayer for attorney’s fees contained in the complaint. In its answer, East Coast denied the Coopers’ allegations. The relief prayed for in the complaint could not be granted unless the Coopers proved the allegations upon which their prayer for attorney’s fees was based. East Coast’s denial of the allegations was therefore sufficient to preserve the issue of entitlement to attorney’s fees. A contrary holding would encourage litigants to answer every prayer for relief with a motion to strike, an act we deem an unnecessary predicate to consideration by the trial court. Furthermore, we perceive no applicable ground upon which a motion to strike might have been based. See Fla. R.Civ.P. 1.140(f) and Fla.R.Civ.P. 1.150. Despite the trial court’s error in finding a waiver by East Coast, we need not return the matter for further consideration because we hold, that as a matter of law, the Coopers established that they were entitled to attorney’s fees.

In addition to our finding that the policy was “issued for delivery” in Florida, we hold that delivery occurred in Florida. Our decision is supported by a plain reading of section 627.402, Florida Statutes (1977) which defines “policy”:

(1) ‘Policy’ means written contract of or written agreement for or effecting insurance, or the certificate thereof, by whatever name called, and includes all clauses, riders, endorsements and papers which are a part thereof.
(2) The word ‘certificate’ as used in this section does not include certificates as to group life or disability insurance or as to group annuities issued to individual insureds.

The legislature has indicated that a policy includes its certificate unless issued in group life disability insurance or group annuities to individual insureds. The certificates of insurance, which were sent to Florida, constituted delivery of the policy in Florida. Neither Blue Cross of Florida v. Turner, 363 So.2d 133 (Fla. 1st DCA 1978) nor Albury v. The Equitable Life Assurance Society of the United States, 409 So.2d 235 (Fla. 1st DCA 1982) contradicts our view because both cases pertain to group insurance specifically excluded from the statutory definition. We reject the decision of Robert McMullan & Son, Inc. v. United States Fidelity & Guaranty Co., 103 Cal.App.3d 198, 162 Cal.Rptr. 720 (Cal.Ct.App.1980), which we believe ignores the clear language of the statute.

Based upon our holding that the Coopers’ policy was issued for delivery in Florida and that the certificates were in fact delivered in Florida, we affirm the trial court’s award of attorney’s fees.

Affirmed.

      . Affirmed, East Coast Insurance Co. v. Cooper, 405 So.2d 1010 (Fla. 3d DCA 1981).

      . The orders appealed are: Order on Attorney’s Fees, Order on Motion to Correct and Clarify Judgment, and Final Judgment of Reasonable Attorneys’ Fees.

      . Section 627.401 states in pertinent part:
      No provision of part II of this chapter shall apply as to:

      (2) Policies or contracts not issued for delivery in this state nor delivered in this state,


author: LARRY G. SMITH, Judge.

text:
    STATE of Florida, DEPARTMENT OF NATURAL RESOURCES, Appellant, v. SOUTHEASTERN FISHERIES ASSOCIATION, INC., a Florida corporation; Atlantic and Gulf Fishing Supply Corporation, a Florida corporation; W. R. Moore, Richard Thomas, Bob Officer, Jim Simons, Don Hess, Bill Sandefer and Richard Nielsen, Appellees.
    No. AB-53.
    District Court of Appeal of Florida, First District.
    June 18, 1982.

      Mark J. Proctor, Gen. Counsel for Dept, of Natural Resources, Tallahassee, Jim Smith, Atty. Gen., Bruce D. Barkett, Asst. Atty. Gen., Tallahassee, for appellant.
    Robert M. Rhodes and H. Michael Madsen of Messer, Rhodes & Vickers, Tallahassee, for appellees.
   LARRY G. SMITH, Judge.

This case presents for our review a summary judgment entered by the trial court holding unconstitutional Section 370.1105, Florida Statutes (1980 Supp.), making it unlawful to fish for saltwater finfish with any trap, or to possess any fish trap other than traps specifically excepted from operation of the act. The trial court further held that if the act, or any portion thereof, is constitutional, it has no extraterritorial effect, but is enforceable only within the territorial waters of the State of Florida. We reverse.

The trial judge found the statute imper-missibly vague in that it fails to define the operative word “trap.” The trial court acknowledged that there would be no difficulty in conceiving the nature of a “fish trap” as distinguished from other devices for catching fish. However, the trial court was concerned with the problem encountered in attempting to distinguish fish traps that are lawful from those that are not — keeping in mind that the act excepts from its operation certain lawful traps, i.e., crab, crawfish, or shrimp traps specifically permitted by other statutory provisions, pinfish traps not exceeding certain dimensions, and black sea bass traps having certain specifications and dimensions.

We disagree with the trial court’s conclusion that the absence of a statutory definition of the fish traps prohibited renders the statute unconstitutionally vague. The problem here is similar to that encountered by the Court in State v. Hagan, 387 So.2d 943 (Fla.1980), in which the terms “trawl net” and “trawling operation” were found to have a definite meaning as used in connection with the fishing industry, and the statute in which these terms were used was found valid. In Hagan, the Court resorted to a common dictionary definition of the term “trawl net,” and in finding the questioned term sufficiently definite, observed that a statute may satisfy due process requirements, “even though it contains general terms and does not furnish detailed plans and specifications of the act or conduct proscribed.” Id. at 946.

The term “fish trap” is defined in Webster’s Third New International Dictionary, at 859 (1971), as “a device for catching fish that consists of a net or other structure which diverts the fish into an enclosure so arranged that egress is more difficult than ingress.” It is our considered conclusion that the term “fish trap” is not “so vague that men of common intelligence must necessarily guess at its meaning,” and that as these terms are used in the statute, they provide “a sufficiently definite warning as to the proscribed conduct when measured by common understanding and practice.” State v. Hagan, supra, at 945, citing Florida authorities.

As for the matter of distinguishing between “legal” and “illegal” fish traps, which proved troublesome to the trial judge, our reading of Sections 370.13-370.-15, discloses that these statutory provisions, relating to crab, crawfish, and shrimp traps, contain details with respect to size, configuration, manner of use, and permit requirements, which provide sufficient means for distinguishing them from unauthorized fish traps proscribed by Section 370.1105. Similarly, subsections 370.1105(l)(b) and (c) provide, by means of configuration and dimensions, sufficient distinguishing features to avoid confusing the small, permissible “pinfish” or “black sea bass” traps from those that are prohibited.

Finally, on the “vagueness” issue, it is proper for the court to consider the particular meaning of statutory terms as they are used in connection with the industry which is being regulated. State v. Hagan, supra, at 946. Given the extent to which the Florida Legislature has addressed itself to the various kinds and usages of traps for catching marine life, and its demonstrated recognition of its previous enactments relative to traps of various kinds, we are confident that the Legislature knew and considered the common usage of fish traps in Florida and in the federal fisheries conservation zone when it enacted Section 370.-1105.

Turning now to Section 370.1105(2), that portion of the statute makes it unlawful to possess any “fish trap” other than those specifically permitted by law. We will not concern ourselves, at this juncture, with the contradictory positions taken by appellant relative to its enforcement of this particular provision. Whether appellant determines, administratively, to enforce or attempt to enforce the penalties for possession of prohibited fish traps upon dry land, docks and wharfs, or fishing vessels on or beyond the territorial waters of the state, is of no moment to our consideration of the statute’s validity. Appellee has asserted, and we agree, that the issue as presented to the trial court called for an adjudication of the facial validity of the statute, and not its validity as applied or interpreted by appellant.

A state may regulate the method of taking fish, or may prohibit the use of certain devices in the taking of fish. In order to enforce such regulations, the state may make possession of such unlawful devices a criminal offense. In addition, it may authorize the forfeiture, or destruction of such devices.

We note the observation of the trial judge that he felt it unnecessary to interpret the “possession” portion of the statute. However, in order that all issues might be addressed on appeal of the case, the trial judge did interpret that portion, declaring that there was nothing in the language of the statute that would disclose any intent or purpose to limit its operation to the possession of fish traps in and beyond Florida’s territorial waters, but not upon land. We agree with the trial court’s interpretation as to the scope of the statute, as do appellees, but we disagree with the trial court’s determination that this portion of the statute is overbroad.

A statutory enactment is void on its face, as “overbroad,” when it sweeps within its ambit constitutionally protected activities as well as unprotected activities. There being no constitutional protection of the right to possess fish traps, this statute is not void for overbreadth. Cf., Spears v. State, 337 So.2d 977 (Fla.1976); W. J. W. v. State, 356 So.2d 48 (1st DCA 1978).

Appellee next asserts that congress has preempted state regulation of fishing within the National Fisheries Conservation Zone by enacting the Fishery Conservation and Management Act of 1976, 16 U.S.C., Sections 1801, et seq. In Tingley v. Allen, 397 So.2d 1166 (Fla. 3rd DCA 1981), the Third District interpreted 16 U.S.C., Section 1856(a) as specifically prohibiting both direct and indirect regulation of fishing by a state beyond its territorial boundaries. Section 1856(a) provides:

Except as provided in subsection (b) of this section, nothing in this chapter shall be construed as extending or diminishing the jurisdiction or authority of any state within its boundaries. No state may directly or indirectly regulate any fishing which is engaged in by any fishing vessel outside its boundaries, unless such vessel is registered under the laws of such state. (emphasis ours).

The California Supreme Court, when confronted with a challenge to the extraterritorial application of its prohibition of the use of spotter aircraft for the taking of swordfish, concluded:

. .. [W]e conclude that Section 1856(a), fairly read, is intended to permit a state to regulate and control the fishing of its citizens in adjacent waters, when not in conflict with federal law, when there exists a legitimate and demonstrable state interest served by the regulation, and when the fishing is from vessels which are regulated by it and operated from ports under its authority, (citations omitted).

People v. Weeren, 26 Cal.3d 654, 163 Cal.Rptr. 255, 607 P.2d 1279 (Cal.1980), cert. denied, 449 U.S. 839, 101 S.Ct. 115, 66 L.Ed.2d 45.

We are persuaded by the reasoning of the California court. There can be no doubt that Florida has a substantial interest in the preservation and protection of its vast and valuable marine resources. An array of commercial and sport fishing occurs within the boundaries of the Sunshine State, from bone fishing on the southern flats to oyster tonging in Apalachicola Bay. The instant statute, enacted by the Legislature after open and active public debate, is aimed at protecting a portion of this valuable economic resource. Following the lead of the California court, we have examined the applicable federal regulations and find none relating to the use of fish traps. In the absence of federal regulation in this area, and in light of Florida’s demonstrable state interest, we conclude that the statute is constitutional. The question of what constitutes sufficient registration to avoid the prohibition against state regulation imposed by 16 U.S.C., Section 1856(a), is not now before us, and we will express no opinion on the subject.

The final issue calls for our review of the trial court’s determination that even if constitutional, the statute applies only to the territorial waters of the State of Florida. We observe at the outset that in so ruling the trial court was applying precedent established by this court in Burns v. Rozen, 201 So.2d 629 (Fla. 1st DCA 1967). Therefore, unless we recede from our decision in Burns v. Rozen or find grounds upon which we may distinguish its holding, this court would be bound to uphold the ruling of the trial court on this point.

We observe, initially, that we agree with appellee’s assertion that the question presented is not one of the constitutional authority of a state to regulate conduct beyond its territorial limits, but rather, is one of statutory construction. Both sides agree, as they did in Burns v. Rozen, that the State of Florida has the power to enact legislation “regulating and controlling the operation of vessels and acts of citizens of this state on water outside the territorial limits of the State of Florida as well as on water within its territorial limits.” Burns v. Rozen, supra, at 630, citing Skiriotes v. State of Florida, 313 U.S. 69, 61 S.Ct. 924, 85 L.Ed. 1193 (1941), and United States v. States of Louisiana, etc., 363 U.S. 1, 80 S.Ct. 961, 4 L.Ed.2d 1025 (1960).

In Burns v. Rozen, this court, relying upon the general rule as stated in 50 Am. Jur., Statutes, Section 487, declared that “[extraterritorial effect of an enactment is not to be found by implication.” 201 So.2d at 631. Applying this rule, the Burns court found that nowhere in the statute under consideration was to be found any express intention that its provisions were to be given extraterritorial effect. In response to appellant’s contention that such intention is to be found in the “history, objective and purpose of the statute . ..,” the Bums court proceeded with further inquiry, leading it to related statutory provisions which indicated that the term “salt water,” as used in the purse seine statute under construction, would be construed to refer only to the territorial waters of Florida. In this respect, the purse seine law dealt with by the court in Burns was not, as appellees suggest, “absolutely silent” as to the geographic territory in which the law was intended to operate, and it is clear that the court found “by implication” from the use of the term “salt water,” the intent to make the statute apply only to territorial waters. The statute in Burns and the statute in the case before us are similar only in that there is absent from both statutes any “express intention” that their provisions are to be given extraterritorial effect.

We think the differences between the statute we have under consideration here, and the one considered in Burns, are significant enough to merit a departure from the strict rule announced in Burns, which, as indicated, prohibits giving a statute extraterritorial effect by implication. The statute in Burns prohibited the “use” of purse seines, etc., for the taking of food fish. The fish trap statute here prohibits not only the use of fish traps, excepting those specifically permitted by law; it also prohibits the possession of such traps. As appellant points out, if we give only territorial effect to the statute, it would be rendered ineffective, because it is clear that the citizens of Florida, or fishing vessels registered in or using Florida ports could not fish or carry fish lawfully caught beyond Florida’s territorial waters without ultimately crossing the territorial waters of Florida, in violation of the law. Nor could a person lawfully possess on land trap-caught fish anywhere in Florida, even if the fish were caught beyond the territorial waters of the state. Had the Legislature intended enforcement of the fish trap law only within the boundaries of the state, it would not have included the possession and landing prohibitions, because these could not be enforced without proof of use of traps in Florida waters, a separate violation. Appellants make a convincing argument that the possession and landing provisions indicate a legislative intent that the law should apply extraterrito-rially. Without extraterritorial enforcement, significant provisions of the law would be ineffective.

For the foregoing reasons, we conclude that Section 370.1105, Florida Statutes, when construed in the light of the purposes and objective sought to be accomplished, is intended to have extraterritorial effect. Because we acknowledge that our holding today is facially at odds with fairly strong language to the contrary found in Burns v. Rozen, we certify the following question to the Florida Supreme Court, as a matter of great public interest having statewide implications:

Does Section 370.1105, Florida Statutes (1980 Supp.), apply to waters outside the territorial boundaries of the State of Florida, notwithstanding the absence of a provision expressing the intention that its provisions are to be given extraterritorial effect?

The judgment appealed from is REVERSED.

ROBERT P. SMITH, Jr., C. J., and WIG-GINTON, J., concur.

      . Miller v. McLaughlin, 281 U.S. 261, 50 S.Ct. 296, 74 L.Ed. 840 (1930). Miller, a Nebraska resident, brought suit to enjoin the enforcement of a Nebraska statute prohibiting the use of fish nets, traps and seines in the waters of the state and making possession of these devices unlawful. He alleged that he had such devices in his possession which he purchased before enactment of the law, and which were used exclusively in taking fish from the Iowa (which permitted the practice) side of the Missouri River.
      Writing for the Court, Justice Brandéis said, inter alia:
      The claim under the 14th Amendment is also groundless. A state may regulate or prohibit fishing within its waters (citations omitted); and, for the proper enforcement of such statutes may prohibit the possession within its borders of the special instruments of violation, regardless of the time of acquisition or the protestations of lawful intentions on the part of a particular possessor, (citations omitted).
      at 264. See also, 35 Am.Jur.2d, Fish and Game, § 47.

      . If appellee is correct, the statute would be constitutionally invalid, U.S.Const., Art. VI, cl. 2.

      . The court in Tingley did not indicate that the appellees’ vessel was “registered” in the State of Florida. Consequently, we cannot determine if our decision in this case conflicts with that decision. We note, however, that at least one of the appellees in Tingley had earlier challenged the statute there under attack. 397 So.2d at 1168, n. 4.

      .50 C.F.R., ch. VI.

      . No question was raised, either in the circuit court or here, of whether the court should decide the question of statutory construction or remit the parties to administrative remedies on that question.