LAW OFFICE OF ROBERT K. LINCOLN, P.A.

Land Use and Local Government Law and Litigation

The Law Office of Robert K. Lincoln, P.A.  provides legal services to private and public entities involved in complex land use disputes.  Hiring an attorney is an important decision that should not be based solely upon advertisements.  Before you decide, ask and I will provide free information about my experience and qualifications. 

Deland's attack on non-traditional families and the problems of Code Enforcement

One of the more common and problematic features of zoning codes/land development regulations is (yes, the verb modifies "one" in this case) the definition of family. Or, more to the point, the inclusion of restrictive definitions of family to define just who can or cannot live in a given dwelling unit.

Thanks to Matt Conigliaro of AbstractAppeal.com for finding this story about how Deland has adopted and is trying to enforce a definition of family that allows only two (yes, two!) unrelated persons to live in a single dwelling unit. The City is prosecuting landlords who rent to more than two college students at a time.

Here's the actual definition (thanks, MuniCode!) of familyfrom the Deland LDRs:

(98) Family means any one of the following, when living together in a dwelling unit or using it as a common place of abode for 30 days or more in any three-month period:
---A natural family of one or more persons who are all related to each other by law, blood, marriage or adoption.
---Six or fewer persons living together in a facility which is licensed by the Department of Children and Family Services in accordance with § 419.001(2), Florida Statutes, or registered under § 409.176, Florida Statutes, or a substantially equivalent statute.
---A maximum of two unrelated persons, together with their natural family who are related to each other by law, blood, marriage or adoption.

Apparently the attacks on the current code efforts are based on discriminatory enforcement, but I think that all of these definitions have to fall either on privacy grounds (in Florida) or on vagueness grounds (that go to discriminatory enforcement).

This, on its face creates some rididulous levels of interference. Presumably, the last provision is intended to allow "Kate and Allie" situations - two single moms, with their kids. But that's not really what it says - maybe. It might also only be intended to cover situations where an unmarried mother and father have kids (the their covers only situations where the 2 people who are unrelated are related to everyone else). If not, the parsing problems get completely out of hand:

--A couple might not be able rent a room to a single person - there are then two related people but also two unrelated people (t/p to husband; t/p to wife). If the "their natural family" is understood broadly, then the couple could take in a single renter and maybe allow a second couple to rent (two related groups?). But if so, then you get into really nasty territory.

--What if the couple is gay? Then if they rent a room to a friend, it's three unrelated (by law) people. So gay couples are discriminated by this definition on its face.

And now lets get really on it. Does fosterage or guardianship create a relation "by law"? So if a couple takes in a foster kid, ok. If they have a child of their own, not OK? If they take on a second foster child, not OK?

And then what about gay couples and families? Two women live together - OK initially. One woman has a child with the second - Florida law doesn't allow the second woman to adopt the child. Whoops, three unrelated people?

Pretty quickly you get to a situation where almost any dwelling unit with 3 adults in it is suspect and almost any group of more than four people could be requried to demonstrate on demand that they are a proper family.

Examples:
-- Two brothers and their best friend live together. To avoid being cited, the brothers have to keep their birth certificates around? (is this a violation anyway because the 3d person is unrelated to 2 others?)
--Same with the family with one child that takes in a foster child - do they need to keep their marriage certificate plus the birth certificate around to prove that the three people are related? And if they take in a child of a friend - is this too many unrelated people?
-- A couple invites the sister of one to come live with them - do they need to have their marriage license available at all times to show the nosy cop or code enforecment person? And if the couple is gay, they can't produce the relevant documents and are violating the ordinance where a straight couple would not be.

On its face, enforcement of the family definition adopted by DeLand (and by many other local governments) demands scrutiny into relationships that are protected under Art. I, s. 23. It also gets the enforcement people into deep trouble immediately Who gets cited and who doesn't? what proof is needed to avoid a citation if a neighbor complains? How could a field officer ever consistently determine what information will or won't be sufficient for the occupants to avoid a citation?

The City's valid interest in avoiding overcrowding can be handled through regulations that address how many people per bedroom you can have in a dwelling unit or similar inquiries that don't rely on the highly suspect inquiry into who counts as a family member.

Good luck to the attorneys who are fighting this one!

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Hiring an attorney is an important decision that should not be based solely upon advertisements. Before you decide, ask and I will send you free written information about my qualifications and experience. Additionally, the comments, statements and articles contained herein are general in nature and should not be relied upon as a basis for any legal opinion, action or conclusion on the part of the reader with respect to any particular set of facts or circumstances, or to establish an attorney-client relationship between us.