#### J.F. WILLIAMS and Dura Williams, husband and wife, Appellants, v. CITY OF ARCADIA, a municipal corporation, Appellee.

No. 86-1153.

District Court of Appeal of Florida, Second District.

Jan. 23, 1987.

Edwin R. Ivy, Orlando, for appellants.

David C. Holloman, Arcadia, for appellee.

PER CURIAM.

Appellants appeal the entry of a permanent injunction by the trial court. The injunction resulted from appellee's complaint filed below which alleged that appellants were operating a migrant labor camp within the city limits of the City of Arcadia, in that the property was being used as living quarters for seasonal, temporary migrant farm workers. Appellee alleged that such use of the property violated section 22.81 of the City Code of the City of Arcadia.

Appellee concedes that appellants’ property was used as an apartment house prior to the enactment of the Zoning Code of the City of Arcadia, and to that extent was a preexisting nonconforming use, but alleges that it was not used prior thereto as a migrant labor camp. The applicable sections of the Zoning Code of the City of Arcadia do not define “migrant labor camp.” Appellee argues that use of property as living quarters for seasonal, temporary migrant farm workers constitutes use as a “migrant labor camp.” We do not agree.

Since appellee’s zoning code does not define “migrant labor camp” and since appellants are licensed to operate the property by the Florida Hotel and Restaurant Commission as a “transient apartment” pursuant to section 509.242(1)(g), Florida Statutes (1983), we must look to the Florida Statutes to define “migrant labor camp.” Section 509.242(1)(g) under which appellants’ property is licensed as a “transient apartment” provides:

> (g) Rooming houses, guest houses, cabins. — Any public lodging establishment not within the foregoing classifications shall be classified as a rooming house, a guest house, cabins, a tourist camp, *or otherwise according to choice,*but shall not be allowed a classification that could be confused with one of the foregoing. Converted dwelling houses, unless they can qualify for another classification, shall be classified under this paragraph. (Emphasis supplied.)

“Migrant labor camps” are defined and required to be licensed under chapter 381, Florida Statutes (1983). “Migrant labor *149camp” is defined by section 381.422(3) as follows:

> “Migrant labor camp” — One or more buildings or structures, tents, trailers, or vehicles, or any portion thereof, together with the land appertaining thereto, established, operated, furnished as an incident of employment, or used as living quarters for seasonal, temporary, or migrant farm workers whether or not rent is paid or reserved in connection with the use or occupancy of such premises. The definition of “migrant labor camp” also includes two or more migrant dwelling units located on the property of one person, but the *definition does not include one migrant dwelling unit or a public lodging establishment licensed pursuant to chapter 509.*However, all other housing described in this section is included in this definition, regardless of its primary purpose or design or regardless of whether it is offered to the general public. *It is the intent of this section to require all such housing to be subject to the provisions of either chapter 509 or this law.*(Emphasis supplied.)

It is the clearly expressed legislative intent that public dwelling facilities shall be licensed either under chapter 381 or chapter 509, but not both. When the state elects to license a lodging establishment open to the public under chapter 509, it would not then become a “migrant labor camp” merely because some, most or all of its occupants were migrant laborers. That seems to be the error that caused the trial court to enter the permanent injunction. The sole prayer of appellee’s complaint was: “WHEREFORE, Plaintiff requests that this Court enter a permanent mandatory injunction prohibiting Defendants, J.F. WILLIAMS and DURA D. WILLIAMS, husband and wife, from operating a migrant labor camp on the above-described property.”

The injunction ordered by the trial court found “that the Defendants are operating a migrant labor camp on the above-described property, which is not allowed under the above-described zoning” and “that the activities of Defendants upon said property constitute a nuisance.” The trial court then “enjoined and restrained (defendants) from operating a migrant labor camp and nuisance” and to “henceforth comply with Article VIII of the City Code of the City of Arcadia, Florida, and with the 1969 edition of the Southern Standard Housing Code....” The injunction does not specify which sections of the City Code or Southern Standard Housing Code must be complied with. We find, however, that because of their prior nonconforming use, appellants are not restricted by Article VIII of the City Code. We further find that the only section of the Southern Standard Housing Code that has been demonstrated to the court as being applicable is section 307, pertaining to rooming houses.

To restate our findings, we conclude that the trial court erred in finding that appellants’ property constituted a nuisance because it was being operated as a migrant labor camp. We also conclude that section 307 of the Southern Standard Housing Code is the only section of that code or the city code that has been demonstrated as being relevant. The provision of the injunction that states “[t]hat the Defendants are enjoined and restrained from allowing loud noises to emanate from the above-described property or allow litter to be strewn on the above-described and adjoining properties” has neither been cited nor argued as error. We, therefore, affirm the injunction as it related to that provision and reverse it in its other provisions as we have stated herein.

RYDER, A.C.J., and CAMPBELL, J., concur.

HALL, J., dissents with opinion.

HALL, Judge,

dissenting.

I would affirm the trial court’s order granting a permanent injunction against appellants.

The trial judge, after listening to extensive testimony and examining the evidence presented by the parties, found that appellants were utilizing their apartments as a *150migrant labor camp. He permanently enjoined and restrained them from operating a migrant labor camp and nuisance upon their property.

My learned colleagues have held that the Code of the City of Arcadia does not define *migrant labor camp*and that the court must look to the Florida Statutes for a definition of *migrant labor camp.*They reason that, even though section 381.422(3), Florida Statutes (1985), defines *migrant labor camp*as the type of dwelling operated by appellants, the property cannot be a *migrant labor camp*because the statute exempts any public lodging establishment licensed pursuant to chapter 509, regardless of its actual use.

I would not so strictly construe the statute to exempt a dwelling which is in fact a *migrant labor camp*from the definition of one just because it is licensed as a public lodging establishment. The statute provides that a public lodging establishment shall be licensed pursuant to chapter 509, and this chapter places upon the owner/operator certain duties with which he must comply or his license is subject to suspension or revocation. It also places a duty upon the state to determine whether the property is properly classified as a public lodging establishment and whether the owner/operator has complied with all of the necessary duties as required by the statute before it is licensed under chapter 509.

In the instant case, the facts show that the state inspector, Mr. Bell, did not personally inspect the apartments but that he arrived at his classification of the property because of what he was told by a former employee of the Division of Hotels and Restaurants. The record discloses that the owner/operator did not post room rates in each room or apartment as required by section 509.201(1), Florida Statutes, nor did he maintain at all times a register signed by or for guests who occupy rooms within the establishment, showing the dates upon which the rooms were occupied by such guest and the rates charged for their occupancy as required by section 509.101(2), Florida Statutes. Section 509.261(1)(a) provides that: “the division of hotels and restaurants may suspend or revoke the license of any public lodging establishment that has operated or is operating in violation of any of the provisions of this chapter; ... such public lodging establishment shall remain closed during the suspension or revocation of such license.”

It is apparent from the record that had Mr. Bell, the state inspector, properly inspected the property, he would have determined that it did not comply with requirements as set forth in chapter 509 and was not entitled to licensing thereunder.

I do not believe that the legislature intended to prohibit the court from utilizing the definition of a *migrant labor camp*as defined in section 381.422(3), where the licensing by the state under chapter 509 is shown to be improper and not according to the statutory requirements. The fact that a dwelling house is improperly licensed under section 509, Florida Statutes, should not estop the city from determining that the building was in fact used as a *migrant labor camp.*