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

An Issue of National Significance

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

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

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

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

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

A Fundamental Right to Grow One’s Own Food

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

“ It is utterly irrational that Hermine and Tom could have flowers, fruit or flamingos in their front yard, but not vegetables.

”

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

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

Food Isn’t Ugly

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

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

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

The Institute for Justice Team

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

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

IJ’s National Food Freedom Initiative

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

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

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

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

For more information, contact:

Shira Rawlinson

Assistant Director of Communications

Institute for Justice

901 N. Glebe Road, Suite 900

Arlington, VA 22203

(703) 682-9320, ext. 229

srawlinson@ij.org