STETSON LAW REVIEW
VOLUME 46 SPRING 2017 NUMBER 3
LOCAL GOVERNMENT LAW SYMPOSIUM
ARTICLES
Free Enterprise vs. Economic Incentives: The Evolution of the “Public Purpose” Fulcrum Douglas J. Sale 481
This Article explores the evolution of Florida law regarding public-private partnerships (“P3s”) and provides practical tips for local government practitioners to best position themselves and the governments they represent for success in partnering with private entities. Local governments and the private sector may collaborate on projects involving economic development, blight elimination or redevelopment, and acquisition of a needed asset or service. However, to avoid running afoul of the Florida Constitution, the government actor must be careful to ensure that the public benefit is sufficiently served and that the project does not disproportionately benefit the private partner. The standard—although not always consistently applied by the Florida Supreme Court—varies depending on the type of financing employed by the government, specifically on whether the governmental assets to be used are in hand at the time of the project’s inception, and if not, how they will be obtained (taxation versus enterprise net revenues). In any case, the constitutionality of a given project will hinge on whether it demonstrates a sufficient public purpose to be served. In addition to describing strategies that local government attorneys can employ to best position their projects to meet the required standards, this Article also discusses the variety of mechanisms that a local government can use to implement such projects, including a city’s home- rule power; the 2013 Florida P3 statute; a specific grant of community redevelopment power; and other economic incentive programs included in various statutes and regulations. The Author is the former City Attorney for the City of Panama City Beach and a past President of the Florida Municipal Attorneys Association.
With the Best of Intentions: First Amendment Pitfalls for Government Regulation of Signage and Noise Karen Zagrodny Consalo 533
In recent years, state and federal courts have used the fundamental right of free speech to curtail the government’s ability to regulate speech through sign and noise regulations. This Article traces that caselaw and seeks to provide best drafting practices for local governments regarding sign and noise regulations. First, the Author discusses developments regarding sign regulations, noting that the U.S. Supreme Court decision in Reed v. Town of Gilbert clarified that a court should determine the level of scrutiny to be applied based on whether the regulation is content-based in its operation, not on the government’s motive behind the regulation. As this holding requires many local governments to rewrite their sign regulations, the Author offers various suggestions, including: ensuring that regulations are content-neutral; revising regulations to confirm they are uniform to all users; regulating signage based upon zoning district; employing time and manner restrictions; and safeguarding from any subjective enforcement or favorable treatment. Second, the Author discusses significant federal noise regulation cases, including the U.S. Supreme Court decision in Grayned v. City of Rockford, and the more recent Eleventh Circuit decision in Pine v. City of West Palm Beach, which established the current parameters to ensure government regulations are sufficiently clear and objective to avoid constitutional invalidity. The Author recommends that governments wading into the amorphous field of noise regulation should create a regulation that is well-defined, narrowly tailored, objective, and contains quantitative standards. After briefly discussing procedural safeguards, the Author concludes that, based on recent caselaw that has determined the boundaries for government sign and noise regulation, regulations in both arenas will continue to be highly scrutinized for constitutional overstep. Thus, it is best for local governments to review and redraft their existing regulations now.
Risk[y] Business: Transitioning to a Stand-Alone Self-Insurance Program Andrew P. Lannon, Peter J. Sweeney, Jr., Patricia D. Smith, Jill E. Jacobs & Wendy L. Fisher 563
In today’s modern society, all actions are measured against risk. Regardless of the category of risk that is being evaluated and the correlated potential negative outcome, it is almost impossible to simply avoid understanding risk and continue to thrive. With special focus on the application of risk in the context of local government in Florida— specifically municipalities—the Authors highlight why it is necessary to understand risk and reasonably mitigate risk through the process known as “risk management.” Particularly, the Authors explore and analyze the “self-insured” approach to risk management by a municipality. In order to reach a conclusion, the Authors first survey an overview of the types of risk most often facing municipalities and the implication of sovereign immunity in Florida when evaluating those risks. The Authors then provide a more in-depth discussion of the differences between fully insured and self-insured risk management programs, which proceeds to an examination of the several factors most often utilized in deciding whether a municipality chooses a self-insured risk management program. In addition, the Authors use a case study of the City of Palm Bay, Florida, which adopted the self-insured risk management program, to demonstrate how it can be implemented. The Authors conclude by providing guidance on what local governments should consider when deciding to implement the self- insured risk management program.
From Rumblings to Reality: One City’s Story of Ethics Reform Julie Meadows-Keefe 589
This Article examines the formation and evolution of the City of Tallahassee’s Independent Ethics Board, primarily through the Author’s experience as Tallahassee’s Ethics Officer. The Author begins by describing how Tallahassee’s Ethics Advisory Panel (the Panel) arose from poor public perception and allegations of political corruption. The Panel undertook various tasks and activities to improve governmental transparency and ethical accountability in Tallahassee. For example, the Author documents how the Panel ultimately decided to create an Ethics Officer who could serve as an advisor for elected officials over ethical matters. The Author then elaborates on how Tallahassee’s City Commission voted and implemented various proposals submitted by the Panel, such as how the City’s new Ethics Officer would take office. In addition, the Author ii examines how the public was involved in Tallahassee’s ethics reform by describing how various reform groups helped pass an amendment that altered the City’s charter on ethics and campaign finance matters. The Author then discusses how the new amendment created Tallahassee’s Independent Ethics Board and, among other things, implemented the roles and responsibilities the Board is now required to fulfill. Finally, the Author concludes by providing insight on how other municipalities can create and improve their own local governmental programs based on Tallahassee’s own experiences.
STUDENT WORKS
Florida’s Accessory Dwelling Unit Laws: Mitigating Florida’s Housing Woes Through State-Encouraged Expansion of ADU Permitting Sarah A. Gottlieb 627
Accessory Dwelling Units (ADUs) are replete with benefits for local governments, communities, and various age groups. These innovative housing solutions provide affordable living options to groups with low to moderate incomes or fixed budgets; offer elderly or disabled populations with accessible living and continued independence; present homeowners with an additional source of income; and promote environmental sustainability by allowing for shorter commutes, encouraging infill, and discouraging sprawl. Despite the wide variety of benefits associated with ADUs, they are illegal by default in many municipalities due to traditional Euclidian zoning laws. Florida is one of only a few states to pass legislation that incentivizes municipalities to create ADU permitting ordinances, but the legislation has fallen short in expanding the use of ADUs throughout the state. This Article explores various solutions on how Florida’s laws can improve to encourage the use of ADUs. It begins by describing the types of laws, policies, and ways of thinking that tend to hinder ADU growth, and discusses how ADUs have managed to grow on a national scale. Next, the Author explains how ADUs can benefit Florida residents in particular, and examines why the current Florida laws fall short of their intended goals. The Author concludes by presenting various solutions to improve Florida’s laws regarding ADUs, while understanding the need for compromise between proponents and opponents of ADUs.
The Modern Family: Why the Florida Legislature Should Remodel its Antilapse Statute for Wills to Reflect the Changing Familial Structure Courtney Chaipel Pugh 659
Though the traditional family structure is now much more complex than in the past, some statutory schemes have failed to keep up with those dynamic changes. The Author, by initially analogizing to the famous TV show Modern Family, argues that Florida’s Antilapse Statute in the wills context does not accomodate the new, complex family structure. Though Florida’s Antilapse Statute under the trust code is expansive and flexible, the same is not true in the wills context. Thus, this Article presents an argument for why Florida’s Antilapse Statute in the wills context should be slowly expanded to provide for stepchildren as well. The Article explores general estate planning options and compares Florida’s Antilapse Statute to more expansive, similar antilapse statutes in other states. In doing so, the Author applies antilapse statutes from several states to a hypothetical family to support the argument that Florida’s antilapse statute for wills is problematic in the context of a blended family. Finally, the Author
iii proposes revisions to Florida’s Antilapse Statute for wills, and explains step by step, through factors underlying a parent-child relationship, how Florida’s legislature should begin by reforming the antilapse statute to provide for stepchildren in the wills context.
RECENT DEVELOPMENTS 695
iv STETSON LAW REVIEW
VOLUME 46 SPRING 2017 NUMBER 3
EXECUTIVE BOARD
Editor in Chief A. EVAN DIX
Executive Editor Managing Editor MONICA STRADY ADRIANA H. FOREMAN
Notes & Comments Editors Articles & Symposia Editors JACOB BOEHNER BRITTNIE BURNS ARDA GOKER JU YOUNG JANG MATTHEW B. GREETHAM JEFFREY KELLER LEAH JOHNSON VANESSA M. MOORE VIVIANA VASIU Research Editor JESSICA VIOLA Recent Developments Editor JESSICA VANDER VELDE Marketing Editor KALEY WITECK Assistant Editors DALTON ALLEN Faculty Advisors LAUREN BAIO JASON R. BENT SHELBY A. MARS JOSEPHINE W. THOMAS NICOLE ZAWORSKA
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v FACULTY AND DEANS
CHRISTOPHER M. PIETRUSZKIEWICZ, B.A., J.D., LL.M., Dean; Professor of Law KRISTEN DAVID ADAMS, B.A., J.D., LL.M., Professor of Law MICHAEL P. ALLEN, B.A., J.D., Professor of Law; Director, Veterans Law Institute THOMAS E. ALLISON, B.S., M.B.A., J.D., LL.M., Professor of Law Emeritus LINDA ANDERSON, A.B., J.D., Professor of Legal Skills MICHAEL AVERY, B.A., LL.B., Visiting Professor of Law ROBERT BATEY, B.A., J.D., LL.M., Professor of Law Emeritus CYNTHIA BATT, B.S., M.ED., J.D., Associate Professor of Law; Director, Clinical Education; Associate Director, Veterans Law Institute MARK D. BAUER, B.A., J.D., Professor of Law DOROTHEA A. BEANE, B.A., J.D., Professor of Law; Co-Director, Institute for Caribbean Law and Policy JASON R. BENT, B.A., J.D., Associate Professor of Law ROBERT D. BICKEL, B.A., J.D., Professor of Law Emeritus PAUL J. BOUDREAUX, B.A., J.D., LL.M., Professor of Law BROOKE J. BOWMAN, B.S., M.S., J.D., M.L.I.S., Professor of Legal Skills; Associate Director, Center for Excellence in Advocacy; Moot Court Advisor TAMMY L. BRIANT, B.S., B.A., J.D., Assistant Dean for Student Affairs CATHERINE JUNE CAMERON, B.A., M.A., J.D., Professor of Legal Skills CARLISS CHATMAN, B.A., J.D., Bruce R. Jacob Visiting Assistant Professor of Law JOHN F. COOPER, B.A., J.D., LL.M., Professor of Law Emeritus LEE A. COPPOCK, B.A., J.D., Visiting Professor of Law KIRSTEN K. DAVIS, B.A., J.D., PH.D., Professor of Law; Director, Institute for the Advancement of Legal Communication CYNTHIA H. DEBOSE, B.A., J.D., Professor of Law WILLIAM R. ELEAZER, B.A., J.D., LL.M., Distinguished Professor of Law Emeritus KELLY M. FEELEY, B.S., J.D., Professor of Legal Skills MICHAEL S. FINCH, B.A., J.D., S.J.D., Professor of Law PETER L. FITZGERALD, B.A., J.D., LL.M., Professor of Law Emeritus ROBERTA KEMP FLOWERS, B.A., J.D., Professor of Law; Co-Director, Center for Excellence in Elder Law JAMES W. FOX,JR., B.A., J.D., Leroy Highbaugh Sr. Research Chair; Professor of Law ROYAL C. GARDNER, A.B., J.D., Professor of Law; Director, Institute for Biodiversity Law and Policy RAFAEL GUZMAN, B.A., LL.B., Distinguished Professorial Lecturer CAROL E. HENDERSON, B.A., J.D., Professor of Law KEVIN HUGHES, B.S., Assistant Dean for Development and Alumni Engagement BRUCE R. JACOB, B.A., J.D., LL.M., S.J.D., LL.M., Dean Emeritus; Professor of Law MARCO J. JIMENEZ, B.A., B.S., J.D., Professor of Law AMELIA MICHELE JOINER, B.A., J.D., Associate Professor of Legal Skills TIMOTHY S. KAYE, LL.B., PH.D., Professor of Law; Faculty Advisor, Journal of Advocacy JOHN KEYSER, B.S., M.S., Assistant Dean for Administration and Decision Support PETER F. LAKE, B.A., J.D., Charles A. Dana Chair; Director, Center for Excellence in Higher Education Law and Policy JEROME C. LATIMER, B.A., J.D., Professor of Law Emeritus LANCE N. LONG, B.A., J.D., Professor of Legal Skills TERENCE F. MACCARTHY, B.A., J.D., Distinguished Professorial Lecturer THOMAS C. MARKS,JR., B.S., LL.B., PH.D., Professor of Law Emeritus CATHERINE MARTIN, B.S., M.B.A., Assistant Dean for Career Development FELISHA MCCASTER, A.S., Registrar JANICE K. MCCLENDON, B.A., J.D., LL.M., Professor of Law Emeritus LIZABETH A. MOODY, A.B., J.D., Distinguished University Professor Emeritus; Dean Emeritus REBECCA C. MORGAN, B.S.B.A., J.D., Boston Asset Management Chair in Elder Law; Co-Director, Center for Excellence in Elder Law JOSEPH F. MORRISSEY, B.A., J.D., Professor of Law LUZ ESTELLA NAGLE, LL.D., LL.M., M.A., J.D., Professor of Law JASON PALMER, B.A., J.D., Professor of Legal Skills; Coordinator, Legal Research and Writing GEORGE A. B. PIERCE, B.S., J.D., M.S., Culverhouse Distinguished Practitioner in Residence ANN M. PICCARD, B.A., J.D., LL.M., Professor of Legal Skills ELLEN S. PODGOR, B.S., J.D., M.B.A., LL.M., Gary R. Trombley Family White-Collar Crime Research Professor; Professor of Law THERESA J. PULLEY RADWAN, B.A., J.D., Professor of Law CARLA L. REYES, J.D., LL.M., M.P.P., Visiting Assistant Professor of Law GAIL L. RICHMOND, A.B., M.B.A., J.D., Visiting Professor of Law CHARLES H. ROSE III, B.A., J.D., LL.M., Professor of Excellence in Trial Advocacy; Director, Center for Excellence in Advocacy SUSAN D. ROZELLE, B.A., J.D., Associate Dean for Academic Affairs; Professor of Law JUDITH A.M. SCULLY, B.A., J.D., Wm. Reece Smith Jr. Distinguished Professor of Law JAMES A. SHEEHAN, B.A., J.D., Distinguished Practitioner in Residence
vi STACEY-RAE SIMCOX, B.S.C./B.A., J.D., Associate Professor of Legal Skills; Director, Veterans Advocacy Clinic BRADFORD STONE, B.A., J.D., Charles A. Dana Professor of Law Emeritus JR SWANEGAN, B.A., J.D., Assistant Dean for International Programs MICHAEL I. SWYGERT, B.A., J.D., LL.M., Professor of Law Emeritus RUTH FLEET THURMAN, B.A., J.D., LL.M., Professor of Law Emeritus CIARA TORRES-SPELLISCY, A.B., J.D., Associate Professor of Law REBECCA S. TRAMMELL, B.A., M.L.I.S., J.D., PH.D., Professor of Law; Director, Dolly & Homer Hand Law Library; Director, Electronic Education STEPHANIE A. VAUGHAN, B.A., J.D., Associate Dean for Student Engagement; Professor of Legal Skills LOUIS J. VIRELLI III, B.S.E., M.S.E., J.D., Professor of Law DARRYL C. WILSON, B.B.A., B.F.A., J.D., LL.M., Associate Dean for Faculty and Strategic Initiatives; Attorneys’ Title Insurance Fund Professor of Law; Co-Director, Institute for Caribbean Law and Policy J. LAMAR WOODARD, B.A., J.D., M.S.L.S., Professor of Law Emeritus; Law Librarian Emeritus CANDACE ZIERDT, B.A., J.D., LL.M., Professor of Law LAURA ZUPPO, B.A., M.B.A., M.S., Assistant Dean for Strategic Enrollment Management
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viii CITY, COUNTY, AND LOCAL GOVERNMENT LAW SECTION OF THE FLORIDA BAR Section Symposium Coordinator AMANDA S. COFFEY
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x FREE ENTERPRISE VS. ECONOMIC INCENTIVES: THE EVOLUTION OF THE “PUBLIC PURPOSE” FULCRUM
Douglas J. Sale*
In the law of taxation, eminent domain, etc., [public purpose] is a term of classification to distinguish the objects for which, according to settled usage, the government is to provide, from those which, by the like usage, are left to private interest, inclination, or liberality. The term is synonymous with governmental purpose.1
In the modern realm of public-private partnerships2 (“P3s” in the trade), the proper roles of the public and private sectors are under constant economic and political (policy) pressures to increasingly blend. In Florida, the state constitution stands in the way of a complete merger of public and private capital and risk,3 but there are exceptions.4 Game on. This Article explores those
* © 2017, Douglas J. Sale. All rights reserved. Founding Partner and Shareholder, Harrison Sale McCloy; City Attorney, City of Panama City Beach, 1981–2016; Past President, Florida Municipal Attorneys Association. J.D., cum laude, University of Florida, 1976; B.A., magna cum laude, Vanderbilt University, 1972. 1. HENRY CAMPBELL BLACK,BLACK’S LAW DICTIONARY 1394 (Publisher’s Editorial Staff ed., 4th ed. 1968) (citations omitted). 2. See, e.g., Russell v. Se. Hous., LLC, 162 So. 3d 262 (Fla. 3d Dist. Ct. App. 2015), reh’g denied (Apr. 17, 2015), review denied, SC15-917, 2016 WL 1065886 (Fla. Mar. 17, 2016) (involving a private developer of a U.S. Navy complex); Tucker v. State, 884 So. 2d 168 (Fla. 2d Dist. Ct. App. 2004) (recognizing construction of courtroom through partnership between Stetson University College of Law and the Second District);FLA. STAT. § 334.30 (2016) (“Public-Private Transportation Facilities”); see also id. § 339.2825 (2013) (“Approval of Contractor-Financed Projects”); id. § 287.075 (2016) (non-exclusive process to solicit or receive a P3 proposal). 3. FLA.CONST. art. VII, § 10 (“Pledging credit.—Neither the state nor any county, school district, municipality, special district, or agency of any of them, shall become a joint owner with, or stockholder of, or give, lend or use its taxing power or credit to aid any corporation, association, partnership or person; but this shall not prohibit . . . .”). 4. Id. art. VII, § 10(c) (express authorization for capital projects for airports, ports, industrial and manufacturing plants); Linscott v. Orange Cnty. Indus. Dev. Auth., 443 So. 2d 97, 101 (Fla. 1983) (implied authority for regional headquarters of multistate insurance company); Nohrr v. Brevard Cnty. Educ. Facilities Auth., 247 So. 2d 304, 308 (Fla. 1971) (implied authority for revenue bonds for private college dorm). 482 Stetson Law Review [Vol. 46 exceptions in the context of P3s. The fulcrum is the concept of public purpose (benefit) versus private benefit.5
I. “PUBLIC PURPOSE” MEANING NEITHER DEFINED NOR STATIC
In 1938, the Florida Supreme Court was called upon to decide whether the City of Jacksonville could issue bonds and condemn land to construct low-rent housing. The City’s actions were affirmed by the Court, writing:
What is a public purpose has given rise to no little judicial consideration. Courts, as a rule, have attempted no judicial definition of a “public” as distinguished from a “private” purpose, but have left each case to be determined by its own peculiar circumstances. Gray, Limitations of Taxing Power, § 176. “Necessity alone is not the test by which the limits of state authority in this direction are to be defined, but a wise statesmanship must look beyond the expenditures which are absolutely needful to continue the existence of organized government, and embrace others which may tend to make that government subserve the general well-being of society, and advance the present and prospective happiness and prosperity of the people.”6
Similarly, the literal term “public purpose” is not defined in the Florida Constitution. However, the concept by many names is
5. Although the majority of the cases cited will be in the context of the government borrowing and spending money, it is helpful to note that the standard for determining the question of “public purpose” is the same under article VII, section 10 [pledging credit] and article X, section 6 [eminent domain]. If a project serves a public purpose sufficient to allow the expenditure of public funds and the sale of bonds under article VII, section 10, then the use of eminent domain in furtherance of the project is also proper. State v. Miami Beach Redevelopment Agency, 392 So. 2d 875, 885 (Fla. 1980) (citing State v. Town of N. Miami, 59 So. 2d 779, 785 (Fla. 1952)). Conversely, the Court has flatly stated that the public purpose concepts used to constitutionally test borrowing and spending money “simply cannot be superimposed upon or commingled with the constitutional ad valorem taxation exemption analysis.” Sebring Airport Auth. v. McIntyre, 783 So. 2d 238, 241 (Fla. 2001) (Sebring IV); see Martin M. Randall, The Different Faces of “Public Purpose”: Shouldn’t It Always Mean the Same Thing?, 30 FLA. ST.U. L. REV. 529 (2003) (discussing post-Kelo statutory limitations upon constitutionally permitted use of eminent domain); see also infra note 108 (discussing Florida’s legislative reaction to Kelo v. City of New London, 545 U.S. 469, 480–84 (2005)). 6. Marvin v. Hous. Auth. of Jacksonville, 183 So. 145, 149 (Fla. 1938) (quoting Green v. Frazier, 253 U.S. 233, 240 (1920)). 2017] The Evolution of the "Public Purpose" Fulcrum 483 consistently used by the courts7 to evaluate whether a particular expenditure is a legitimate exercise8 of the peoples’ power surrendered to the state.9 Most of this caselaw involves judicial validation of public debt.10 Validation is an expedited judicial process which examines and confirms for the benefit of a lender (bondholder or bank) the government’s legislative power to borrow money. A critical part of that judicial examination is whether the state or local government is lending its credit to a private party in violation of the state constitution.11 The word private is the antonym of public. In short, then, constitutional caselaw has set the boundaries of “public purpose” by deciding what is too private to be allowed. It is obvious that, over the past several generations, government at all levels has played an ever-increasing role in every American’s life. In the context of public borrowing and spending, a survey of validation caselaw over the past fifty years demonstrates that the once sacred citadel of free and private enterprise wholly separated from government12 has fallen in favor of using the power and assets of government to do many things that, at least in the present day, appear to be good. But one distinction remains clear in the cases. In Florida, it matters
7. “This Court has used a myriad of terms in assessing the sufficiency of public purpose in revenue bond proceedings.” N. Palm Beach Cnty. Water Control Dist. v. State, 604 So. 2d 440, 446 n.7 (Fla. 1992) (citing State v. City of Orlando, 576 So. 2d 1315, 1317 (Fla. 1991)) (“a paramount public purpose” and “a valid [public] purpose”); State v. City of Panama City Beach, 529 So. 2d 250, 256 (Fla. 1988), receded from on other grounds, City of Orlando, 576 So. 2d at 1317 (“valid purposes”); Linscott, 443 So. 2d at 101 (“a public purpose”); Orange Cnty. Indus. Dev. Auth. v. State, 427 So. 2d 174, 179 (Fla. 1983) (“paramount public purpose”); Miami Beach Redevelopment Agency, 392 So. 2d at 886 (“some substantial benefit to the public”); State v. Hous. Fin. Auth. Polk Cnty., 376 So. 2d 1158, 1160 (Fla. 1979) (“if the public interest, even though indirect, is present and sufficiently strong,” and “a reasonable and adequate public interest”); Nohrr, 247 So. 2d at 309 (“a public purpose”). 8. Jackson-Shaw Co. v. Jacksonville Aviation Auth., 8 So. 3d 1076, 1095 (Fla. 2008) (“some substantial benefit to the public”); N. Palm Beach Cnty. Water Control Dist., 604 So. 2d at 446 (“To pass constitutional muster, a government bond issue must serve a truly public purpose, i.e., it must bestow a benefit on society exceeding that which is normally attendant to any successful business venture.”); Wald v. Sarasota Cnty. Health Facilities Auth., 360 So. 2d 763, 770 (Fla. 1978) (“public interest”). 9. FLA.CONST. art. I, § 1 (“All political power is inherent in the people.”). 10. FLA.STAT. ch. 75 (2016) (“Bond Validation”). 11. FLA.CONST. art. VII, § 10; supra note 3. 12. See State v. Jacksonville Port Auth., 204 So. 2d 881, 882 (Fla. 1967) (acknowledging that the purpose of the 1875 amendment to the Florida Constitution of 1868 was to stop public bodies from taking financial risks for the benefit of private enterprises following the failure of poorly managed railroads and banks that had left the public responsible for their debts). 484 Stetson Law Review [Vol. 46 greatly whether the governmental assets to be used are in hand today, and if they are not whether they will be obtained in the future by coercion (taxes) or voluntary contribution (enterprise net revenues). The concept of public purpose has been the vehicle by which this social change has been recognized in the caselaw.13
II. LEVERAGING PRIVATE CAPITAL WITH PUBLIC ASSETS
A strategically applied public asset, especially an older, underutilized, and even depreciated one, can be a valuable tool to attract many multiples of its value in private investment. This, in turn, can become a catalyst to generate economic activity in the larger community, generating even more multiples of the initial, combined public and private investments. This principle is easily recognized at play in three circumstances:
Economic development—create or accelerate positive growth;14 Blight elimination or redevelopment—abort a downward economic and social spiral by encouraging investment before the property depreciates enough to make private investment economically feasible;15 or Acquisition of a needed asset or service with primarily private rather than public capital, labor, or expertise.16 This third aspect is mentioned, but the primary focus of this Article is upon economic development and
13. As an aside, the adjectives “invalid” or “improper” are sometimes used to describe a purported public purpose that fails the constitutional lending credit test of Article VII, section 10. The Author suggests that as an alternative to “invalid public purpose” the more informative phrase would be “insufficient public purpose.” When the term “proper” or “valid” public purpose pops up in an opinion or article concerning this constitutional test, it is helpful to read it as “sufficient public purpose” in order to remain mindful that the whole concept floats on a spectrum of who benefits the most: a few who are somehow connected to the matter (unconstitutional) or the many who have less direct connections. 14. FLA.STAT. § 125.045 (2016) (county economic development powers); id. § 166.021(8) (municipal economic development powers). 15. FLA.STAT. ch. 163, Part III (“Community Redevelopment Act of 1969”); see also David E. Cardwell & Harold R. Bucholtz, Tax-Exempt Redevelopment Financing in Florida, 20 STETSON L. REV. 667 (1991) (recognizing Community Redevelopment Act as providing opportunity for public-private partnerships to leverage private investment with tax increment proceeds). 16. See, e.g.,FLA.STAT. § 334.30 (2016) (“Public-Private Transportation Facilities”). An example of this type of project would be the No Petro liquefied natural gas fueling facility, which opened in Tallahassee on September 25, 2012, and was developed through a partnership between the School Board of Leon County, Florida, and a private party. 2017] The Evolution of the "Public Purpose" Fulcrum 485
redevelopment, as opposed to acquiring needed infrastructure or services.17
A few of the many specific vehicles by which this principle is executed are:
direct grants-in-aid to private parties;18 construction of horizontal infrastructure substantially or even primarily benefiting a private party;19 demolition of private property;20 sale or lease of public property below fair market value;21 relocation payments for private parties;22 debt forgiveness and conditional earn-outs benefitting private parties;23 tax refund;24 brownfield redevelopment bonus refund;25 property tax abatement;26 government becoming an income-partner with private party;27
17. See Chasity H. O’Steen & John R. Jenkins, We Built It, and They Came! Now What? Public-Private Partnerships in the Replacement Era, 41 STETSON L. REV. 249 (2012) (discussing funding infrastructure redevelopment); Kathryn G.W. Cowdery, Public-Private Partnerships in Providing Water and Wastewater Utility Service: The Trend Toward Privatization in Florida, 74 FLA. B.J. 38 (Oct. 2000) (discussing funding utilities through privatization). 18. FLA.STAT. § 125.045(3) (“making grants to private enterprises for the expansion . . . or the attraction”); id. § 288.0659 (“Local Government Distressed Area Matching Grant Program”). 19. Id. § 125.045(3) (“developing or improving local infrastructure”); id. § 163.370(2)(c)3 (“[i]nstallation, construction or reconstruction of streets”). 20. Id. § 163.370(2)(c)2 (“[d]emolition and removal of buildings and improvements”). 21. Id. §§ 163.380, 125.045(5)(a)4, 166.021(8)(e)1d. 22. This occurs via conditional grants. Id. §§ 125.045(5)(a)1, 166.021(8)(e)1a. 23. Id. 24. Id. § 288.106 (qualified target industry businesses). 25. Id. § 288.107. 26. Id. §§ 125.045(5)(a)3, 166.021(8)(e)1c. 27. This occurs by sharing enterprise income without sharing risk or becoming a “joint owner with” the private party. FLA.CONST. art. VII, § 10; see also Jackson-Shaw Co. v. Jacksonville Aviation Auth., 8 So. 3d 1076, 1089–95 (Fla. 2008) (lease of public property); City of W. Palm Beach v. Williams, 291 So. 2d 572, 578 (Fla. 1974) (lease to private party of city marina held by city in its proprietary capacity was not an unconstitutional joint venture but rather within legislative discretion to provide tax relief); Dade Cnty. Bd. of Pub. Instr. v. Michigan Mut. Liab. Co., 174 So. 2d 3, 6 (Fla. 1965) (purchase of membership in insurance mutual does not make the school board an unconstitutional joint owner with the other owners of the mutual where the policy is not assessable and the primary purpose is to obtain insurance protection). Although these cases do not 486 Stetson Law Review [Vol. 46
non-recourse revenue bonds (payable solely from project revenue);28 tax increment bonds29 and covenants to annually budget and appropriate non-ad valorem revenue,30 without pledging the power to tax;31 pledge of specific, non-ad valorem taxation such as the local business tax,32 public service tax,33 a county or city’s share of a county infrastructure sales surtax,34 or for a county alone, the tourist development bed tax;35 eminent domain permitted the transfer of condemned land to a private party in order to assemble tracts of land for re-development36 prior to Florida’s legislative reaction to Kelo;37 and
specifically address an income-only contract between a public and private party, the principles involved in the analysis of the contracts in each situation are the same. 28. FLA.CONST. art. VII, § 10(c) (express authorization for capital projects for airports, ports, industrial and manufacturing plants); Linscott v. Orange Cnty. Indus. Dev. Auth., 443 So. 2d 97, 100 (Fla. 1983) (implied authority for regional headquarters of multistate insurance company); Nohrr v. Brevard Cnty. Educ. Facilities Auth., 247 So. 2d 304, 308 (Fla. 1971) (implied authority for revenue bonds for private college dorm). 29. FLA. STAT. ch. 163, Part III (2016); id. § 163.387 (Community Redevelopment Trust Fund). 30. See Volusia Cnty. v. State, 417 So. 2d 968, 972 (Fla. 1982) (striking down a pledge of all non-ad valorem revenues coupled with covenant to do all things necessary to continue to receive those revenues because there was too great a potential impact on ad valorem taxation and therefore a referendum was required under Article VII, section 12 of the Florida Constitution). Subsequent refinements of this financing mechanism that address the two deficiencies cited in Volusia County have been upheld. See, e.g., State v. Brevard Cnty., 539 So. 2d 461, 463 (Fla. 1989) (regarding annual appropriations only). 31. Strand v. Escambia Cnty., 992 So. 2d 150, 159 (Fla. 2008) (recognizing county home-rule power to create a tax increment trust fund and finally confirming the constitutional distinction between pledge of taxing “power” and pledge of tax “revenues” if and when those revenues are received, as first held in State v. Miami Beach Redevelopment Agency, 392 So. 2d 875 (Fla. 1980)). 32. FLA.STAT. Ch. 205 (2016). 33. Id. §§ 166.231–166.232. 34. Id. § 212.055(2). 35. Id. § 225.0104. 36. Id. § 163.340(8)(c) (defining “blight” to include “[f]aulty lot layout in relation to size, adequacy, accessibility, or usefulness”). 37. Kelo v. City of New London, 545 U.S. 469, 480–84 (2005), superseded by statute, 2006 Mo. Legis. Serv. H.B. 1944 (West), as recognized in Planned Indus. Expansion Auth. of Kansas City v. Ivanhoe Neighborhood Council, 316 S.W. 3d 418, 426 (Mo. Ct. App. 2010) (holding the City’s exercise of eminent domain power in furtherance of an economic development plan satisfied the federal constitutional “public use” requirement affirming prior cases reading “public use” to mean “public purpose”). But see 2006 Fla. Laws ch. 2006-11 (H.B. 1567) (codified at FLA.STAT. §§ 73.013, 73.014, 166.411) (placing limitations on how municipalities exercise eminent domain). See infra note 108 (discussing Florida’s legislative reaction to the Kelo decision). 2017] The Evolution of the "Public Purpose" Fulcrum 487
any one or more of the above wrapped into a public-private partnership agreement38 to support economic development or re-development or to acquire needed infrastructure (which partnerships, thankfully, defy a concise or consistent definition).
III. SUMMARY OF FLORIDA’S CONSTITUTIONAL LIMITS
From a Florida constitutional perspective, all the myriad vehicles set out above, and others not mentioned or yet invented, can be grouped into two broad categories: (i) borrowing money for a public-private partnership and (ii) contributing assets already in-hand to a public-private partnership. The obvious distinction is timing. That is, whether the government is attempting to commit future assets versus the appropriation of current assets.39 The primary constitutional pinch point that allows some vehicles to pass but complicates or stops others is the prohibition against lending credit, which provides in part: “Pledging credit.—Neither the state nor any county, school district, municipality, special district, or agency of any of them, shall become a joint owner with, or stockholder of, or give, lend or use its taxing power or credit to aid any corporation, association, partnership or person.”40 This same clause prohibits joint ownership of assets or businesses by the government and a private party.41 This prohibition is so facially clear, and an attempted violation so easily recognizable, that it does not merit discussion. Technically, the convenient label “public-private partnership” is a misnomer,42
38. See Partnership for Public Facilities Infrastructure Act Guidelines Task Force Final Report and Recommendations, FLORIDA DEP’T OF MGMT.SERVICES (July 1, 2014), available at http://www.dms.myflorida.com/content/download/104626/592850/Final_Report _and_Recommendations_Partnership_for_Public_Facilities_and_Infrastructure_Act_Guid elines_Task_Force.pdf (discussing how public-private partnerships work and what the state of Florida can do to foster them) [hereinafter “Task Force Final Report”]. 39. A subtler distinction is whether the future “asset” is the power to tax versus the revenue of a tax. See Miccosukee Tribe of Indians of Fla. v. S. Fla. Water Mgmt. Dist., 48 So. 3d 811, 822–23 (Fla. 2010) (recognizing the distinction between taxing power and tax revenues); see also infra note 80 (discussing tax increments). 40. FLA. CONST. art. VII, § 10. The words immediately following the quoted portion are “but this shall not prohibit laws authorizing,” and it is the ensuing, lettered subsections that create all the legal gamesmanship. Id. 41. Id. 42. See infra note 179 (discussing the history of the term public-private partnership). 488 Stetson Law Review [Vol. 46 but is useful if “properly understood.”43 Finally, there is another constitutional limitation that is closely related but also sufficiently clear as to require only mention in passing. It is the requirement that the pledge of payment from ad valorem taxation beyond a year may be made only for a capital project authorized by law and must be approved by referendum.44
A. Local Government Borrowing Money for a Public-Private Partnership
A Florida local government may borrow money secured by its ad valorem taxing power for more than twelve months only to finance or refinance a capital project. The loan must be approved by a vote of the electors unless the new loan is only to refinance at a lower rate an old loan previously approved by the voters.45 Since the electorate must approve such a loan, if the notice and balloting process is fair, it is almost axiomatic to say that the loan will be cloaked with a strong presumption of public purpose. These types of loans are not often made, especially for projects involving private parties against which strong anti-taxation public sentiment will likely arise. If the loan is to be repaid only from revenue generated by a project and that type of project is expressly authorized in the Florida Constitution, there is per se a sufficient public purpose and no inquiry is required into whether the public purpose is sufficient or the financial benefit to private parties is too great. Those listed in the Florida Constitution are non-recourse revenue
43. Whatever that new term of art in our legal lexicon means. See Reed v. Town of Gilbert, 135 S. Ct. 2218, 2233–34 (2015) (Alito, J., with Kennedy and Sotomayor, JJ., concurring) (“Properly understood, today’s decision will not prevent cities from regulating signs in a way that fully protects public safety and serves legitimate esthetic objectives.”). 44. FLA.CONST. art. VII, § 12. This section provides: Local bonds.—Counties, school districts, municipalities, special districts and local governmental bodies with taxing powers may issue bonds, certificates of indebtedness or any form of tax anticipation certificates, payable from ad valorem taxation and maturing more than twelve months after issuance only: (a) to finance or refinance capital projects authorized by law and only when approved by vote of the electors who are owners of freeholds therein not wholly exempt from taxation; or (b) to refund outstanding bonds and interest and redemption premium thereon at a lower net average interest cost rate. Id. This type of financing is sometimes referred to as pledging the “full faith and credit” of the borrower and is often termed “general obligation debt.” 45. Id. 2017] The Evolution of the "Public Purpose" Fulcrum 489 bonds to finance an airport or port facility, and non-recourse revenue bonds to finance an industrial or manufacturing plant where interest on the debt is exempt from federal income tax.46 If a local government uses its taxing power or pledges its credit to borrow money for a project with a private component, there must be a “paramount public purpose” with only an “incidental private benefit.”47 If both conditions are met, the Court has established the precedent that a private party is not disproportionally benefited, and therefore there is no unconstitutional lending of public “credit.”48 Where a local government’s non-recourse debt is secured by and payable only from project revenues, then neither the taxing power nor the proceeds of a tax are obligated.49 Thus, there is no lending of credit, and an ordinary public purpose50 has often been
46. Id. art. VII, § 10. 47. State v. Osceola Cnty., 752 So. 2d 530, 536 (Fla. 1999) (finding that a pledge of a tourist development tax, under Florida Statute section 125.0104, to finance a privately operated convention center served a paramount public purpose); Poe v. Hillsborough Cnty., 695 So. 2d 672, 679 (Fla. 1997) (finding that an infrastructure sales surtax, under Florida Statute section 212.055(2), in addition to a tourist development tax served a paramount public purpose). 48. N. Palm Beach Cnty. Water Control Dist. v. State, 604 So. 2d 440, 441–42 (Fla. 1992). Thus, in order to determine if the bonds run afoul of the constitution, we must first determine whether the District’s taxing power or pledge of credit is involved. If either is involved, then the improvements must serve a paramount public purpose. However, if we conclude that neither is involved, then the paramount public purpose test is not applicable and “it is enough to show only that a public purpose is served.” Id. (quoting Linscott v. Orange Cnty. Indus. Dev. Auth., 443 So. 2d 97, 101 (Fla. 1983)) (internal citations omitted). See Nohrr v. Brevard Cnty. Educ. Facilities Auth., 247 So. 2d 304, 308–09 (Fla. 1971) (holding that a dormitory for a private college served a paramount public purpose). But see Orange Cnty. Indus. Dev. Auth. v. State, 427 So. 2d 174, 175 (Fla. 1983) (holding that the expansion of a commercial television station was not a paramount public purpose). 49. See Miccosukee Tribe of Indians of Fla. v. S. Fla. Water Mgmt. Dist., 48 So. 3d 811, 822 (Fla. 2010) (“Where there is no direct or indirect undertaking by the public body to pay the obligation from public funds, and no public property is placed in jeopardy by a default of the third party, there is no lending of public credit.”) (quoting Nohrr, 247 So. 2d at 309); id. at 823 (recognizing the distinction between promising to use the power to impose a tax and promising to pay from the revenues of a tax discretionarily imposed as affirmed in Strand v. Escambia Cnty., 992 So. 2d 150, 159 (Fla. 2008)). 50. For a city, arguably a “municipal purpose” could be required. See FLA.CONST. art. VIII, § 2(b) (outlining the powers granted to municipalities); FLA.STAT. § 166.021 (2016) (defining “municipal purpose” and further detailing the powers granted in the Florida Constitution); State v. City of Orlando, 576 So. 2d 1315, 1317 (Fla. 1991) (holding that borrowing money solely for reinvestment is not a municipal purpose as required by the Florida Constitution). Query: are “municipal purposes” a sub-set of “public purposes”? 490 Stetson Law Review [Vol. 46 held sufficient.51 Unfortunately, this straightforward rule is not always followed by the Court,52 and confusion results. When the Court refuses to validate a bond payable solely from project revenue, even though such borrowing literally does not pledge the credit of the government, in effect the Court is prohibiting the government from spending on a project the monies earned by that same project. It would be helpful for the Court to justify its opinion by holding simply that private benefit still outweighs the public benefit in violation of Article VII, section 10, and therefore the government cannot be involved, even though neither public credit nor a public source of money will be touched. Said differently, it would be helpful for the Court to be as candid as it has occasionally been and bluntly hold that, despite the fact that no government power or assets are involved, the Florida Constitution requires a particular project or adventure be left entirely to private, free enterprise.53 Instead, in at least five cases
51. Osceola Cnty., 752 So. 2d at 536 (“If the County has not exercised its taxing power or pledged its credit, the obligation must merely serve a public purpose.”); Linscott, 443 So. 2d at 101 (affirming the lower court’s validation of revenue bonds to finance the regional headquarters of a multistate insurance company and recognizing that “[w]ith the adoption of the Constitution of 1968 the ‘paramount public purpose’ test developed by [caselaw] under the Constitution of 1885 lost much of its viability”); Wald v. Sarasota Cnty. Health Facilities Auth., 360 So. 2d 763, 770 (Fla. 1978) (holding revenue bonds for a private hospital valid as serving mere public interest, even though the Court made no independent judicial inquiry into the public nature of the hospital where the legislature had found in enabling legislation that such facilities were in the “public interest”). 52. State v. JEA, 789 So. 2d 268, 272–73 (Fla. 2001) (finding that JEA’s guarantee of certain obligations necessary to participate in competitive energy wheeling arrangement served a paramount public purpose and only incidentally and conditionally benefited private parties who had a very small share in arrangement); Orange Cnty. Dev. Auth., 427 So. 2d at 175 (declining non-recourse, project revenue bonds to finance expansion of commercial television station because this was not a paramount public purpose); State v. Osceola Cnty. Indus. Dev. Auth., 424 So. 2d 739, 740–42 (Fla. 1982) (examining whether an obligation served a paramount public purpose when a Days Inn motel was financed by non-recourse bonds, even though no pledge of credit involved, and finding that it did); State v. Orange Cnty. Indus. Dev. Auth., 417 So. 2d 959, 962–63 (Fla. 1982) (finding a paramount public purpose in a case involving another Days Inn, another non-recourse bond not pledging credit, and another finding of paramount public purpose); Nohrr, 247 So. 2d at 308–09 (noting that under the 1968 Constitution the “gauntlet” of paramount public purpose and only incidental private benefit still must be run to validate revenue bonds for a private project, here a private college dormitory). 53. City of Orlando, 576 So. 2d at 1317. “[W]e ‘see no valid public purpose in investing for investing’s sake. Making a profit on an investment is an aspect of commerce more properly left to commercial banking and business entities.’” Id. (quoting State v. City of Panama City Beach, 529 So. 2d 250, 257 (Fla. 1988) (McDonald, C.J., dissenting)). State v. Town of N. Miami, 59 So. 2d 779, 785 (Fla. 1952), superseded by FLA.CONST. art. VII, § 10(c) (1968), as recognized in Linscott, 443 So. 2d. at 100 (fearing “the ultimate destruction of the private enterprise system”). 2017] The Evolution of the "Public Purpose" Fulcrum 491 the Court has raised the standard of public purpose required (from ordinary to paramount), which confounds its many attempts to define a relationship between the source of payment and the degree of public purpose required.54
B. Local Government Contributing Assets in Hand to a Public- Private Partnership
In short, this is simply a home-rule issue. As authorized by the state constitution and implemented by statute, a city enjoys the home-rule authority to exercise any power that the state may exercise55 except where “expressly prohibited by law.”56 A non- charter county is statutorily granted the home-rule powers that are authorized by the self-government clause of the Florida Constitution, provided they are not inconsistent with general or special law.57 A charter county is directly granted home-rule powers by the self-government clause of the Florida Constitution upon approval of its charter by vote of the county electors, provided those powers are not inconsistent with general or special law.58 Thus, as a general rule, the practical limit of a local government’s exercise of its home-rule power to leverage private investment with a current asset is the fact that the exercise must not be inconsistent with or preempted by state law.59 And, “[o]f course, public bodies cannot appropriate public funds
54. See supra note 51 (discussing Florida’s variable public-purpose standard). 55. FLA.CONST. art. VIII, § 2(b); FLA.STAT. § 166.021 (2016). See City of Orlando, 576 So. 2d at 1317 (noting that a municipality’s purpose is to serve the public and explaining why the bond at issue in the case satisfies neither a public nor a municipal purpose). 56. FLA.STAT. § 166.021(1). Municipal home-rule power may also be impliedly preempted by a pervasive legislative scheme. Tallahassee Mem’l Reg’l Med. Ctr., Inc. v. Tallahassee Med. Ctr., Inc., 681 So. 2d 826, 831 (Fla. 1st Dist. Ct. App. 1996). Home-rule powers also may not conflict with state law, which is always superior. Rinzler v. Carson, 262 So. 2d 661, 668 (Fla. 1972); City of Miami Beach v. Rocio Corp., 404 So. 2d 1066, 1067–68 (Fla. 3d Dist. Ct. App. 1981) (applying conflict analysis after passage of the Municipal Home Rule Powers Act (FLA.STAT. ch. 166) (1973)). But see Phantom of Brevard, Inc. v. Brevard Cnty., 3. So. 3d 309, 313 (Fla. 2008) (noting that the county had home-rule power to impose fireworks regulations greater than the state). 57. FLA. CONST. art. VIII, § 1(f); FLA.STAT. § 125.01(3)(b) (2016); State v. Orange Cnty., 281 So. 2d 310, 312 (Fla. 1973) (non-charter county authorized to take any action that is not expressly prohibited by general or special law). 58. FLA.CONST. art. VIII, § 1(g). A limiting special law could be the charter itself, which means that the electors may withhold enumerated powers from a charter county. 59. For a discussion of the common law nuances between the varieties of such fatal inconsistencies, see ROBERT L. NABORS, 2011 FLORIDA HOME RULE GREEN BOOK, Call Street Publications (2011), especially chapter 7, “General and Special Act Preemption.” 492 Stetson Law Review [Vol. 46 indiscriminately, or for the benefit of private parties, where there is not a reasonable and adequate public interest.”60 Although the Florida Constitution forbids a county or city from using its “taxing power or credit to aid” a private party,61 where a current asset is appropriated to leverage private capital, no new financial obligation is created to be repaid in the future. Thus, the “credit” of the county or city is not involved, and therefore the local government does not unconstitutionally use its credit to aid a private person.62 Of course, a public purpose, or in the case of a city, a municipal purpose, must be served in all cases.63 Also, because a city or county may not become a “joint owner with”64 a private entity, it cannot simply invest in a project by becoming an equity partner with, or a shareholder of, a private developer. A below-market lease of city land and buildings does not make the city a joint owner with the lessee.65 Purchase of non-assessable liability insurance from a mutual company does not make a public school board a joint owner with other members of the mutual.66 Finally, care must be taken to structure the transfer or use of the asset through a control mechanism that ensures that over time the asset will be used for the public purpose intended.67 Simply put, if a local government desires to support a Little League team by appropriating current funds for team uniforms, the finding of a mere public purpose will suffice, but the city should pay the vendor’s invoice directly and not write the check to the coach who might pay his rent with the money.
60. State v. Hous. Fin. Auth. of Polk Cnty., 376 So. 2d 1158, 1160 (Fla. 1979). 61. FLA.CONST. art. VII, § 10. 62. Nohrr v. Brevard Cnty. Educ. Facilities Auth., 247 So. 2d 304, 309 (Fla. 1971); see also Jackson-Shaw Co. v. Jacksonville Aviation Auth., 8 So. 3d 1076, 1095–97 (Fla. 2008) (holding that a public authority did not use its credit in violation of the Florida Constitution when it previously budgeted to build a promised road and already owned the wetlands given to mitigate a private project). 63. Hous. Fin. Auth. of Polk Cnty., 376 So. 2d at 1160; see FLA.STAT. § 166.021(2) (2016) (defining “municipal purpose”). 64. FLA.CONST. art. VII, § 10. 65. Jackson-Shaw, 8 So. 3d at 1093–94. 66. Dade Cnty. Bd. of Pub. Instr. v. Michigan Mut. Liab. Co., 174 So. 2d 3, 6 (Fla. 1965). 67. O’Neill v. Burns, 198 So. 2d 1, 2, 4–5 (Fla. 1967) (finding unconstitutional a state appropriation of fifty-thousand dollars to Junior Chamber of Commerce, a not-for-profit corporation, in part, because “it does not appear that any semblance of control of the contemplated property is retained in the State”). 2017] The Evolution of the "Public Purpose" Fulcrum 493
These two broad categories are summarized in the two tables below. Borrowing Money for a Public-Private Partnership
Local Government Referendum Predominate Public Purpose Only a Action: Executory Required? Required & Only Incidental “Public Promise to Deliver in Private Benefit? Purpose” Future Years Required? Ad Valorem Taxing Yes68 Not necessary Yes Power (“Credit”) Non-Recourse Revenue Bond Proceeds for:69 Airport or port Industrial or No Not necessary Per se manufacturing plant Electric energy facility Non-Ad Valorem Taxing Power (“Credit”) Tourist Not Development Tax70 No Necessary72 sufficient Local Government Infrastructure Sales Surtax71 Yes75 (but Not necessary73 (but might Project Revenue Only No may not be be)74 sufficient)76
Contributing Assets in Hand to a Public-Private Partnership
In the three classifications below, governmental incentives are of more limited use in attracting private investment because investors have less assurance that the resource will be available
68. FLA.CONST. art. VII, § 12. 69. Id. art. VII, § 10. 70. FLA.STAT. § 125.0104 (2016). 71. Id. § 212.055(2). 72. See supra note 47 (paramount public purpose found). 73. See supra note 51 and accompanying text (mere public purpose sufficient). 74. See supra note 52 and accompanying text (mere public purpose insufficient even though only project revenue pledged). 75. Id. 76. Supra note 51. 494 Stetson Law Review [Vol. 46
in the future. The first class, of course, is an extremely narrow, one-shot affair with no future prospects at all.
Local Government Action Referendum Predominate Public Only a Required? Purpose Required & “Public Only Incidental Private Purpose” Benefit Permitted? Required? Executed Appropriation & Not necessary Delivery of Assets in Hand, No Yes Within Same Budget Year77 Executory Covenant to No Not necessary Yes Budget & Appropriate78 Executory Certificate of No Not necessary Yes Participation (“COP”)79 Executory Tax Increment No Not necessary Yes Financing80
77. One commission cannot bind a future one regarding discretionary appropriations. See Bd. of Cnty. Comm'rs of Marion Cnty. v. McKeever, 436 So. 2d 299, 301–02 (Fla. 5th Dist. Ct. App. 1983) (discussing how each commission should annually prepare and adopt budgets, in the context of a constitutional challenge to a motor fuel tax ordinance). 78. Such a covenant is an executory promise to budget and appropriate in future years non-ad valorem revenues, but it is expressly subject to the government’s obligation to provide essential services and reserves the right to discontinue programs generating those revenues, leaving the creditor with only the remedy to seek judicial interpretation of what essential services are. See Cnty. of Volusia v. State, 417 So. 2d 968, 969 (Fla. 1982) (holding that a pledge of all future non-ad valorem revenues was an indirect pledge of ad valorem taxation, which would require a referendum); Headley v. City of Miami, 118 So. 3d 885, 889–94 (Fla. 1st Dist. Ct. App. 2013) (discussing how competent substantial evidence supported PERC’s determination that the city’s financial inability to provide essential services to its residents supported statutory immunity from unfair labor practice); see also supra note 30 (discussing development of this action to address the defects noted in Volusia County). 79. COP debt is secured by the local government’s promise to lease a governmental facility (frequently a school) from a single purpose not-for-profit corporation formed to issue the debt, develop the facility, and lease it to the government. The key is that the government may cancel the lease at any annual, upcoming budget cycle, so the lease payments are literally only current appropriations, as if the government were buying pencils. The creditors are issued Certificates of Participation representing an undivided interest in the lease payments, which, as an investment vehicle, are functionally equivalent to bonds, except that their creditworthiness is based not only on the government’s income and assets but also, and perhaps more importantly, upon its continued need for the facility, such as a school. If the lease is cancelled, the issuer corporation must find alternative value in the facility to pay anything to the COP holders. See Miccosukee Tribe of Indians of Fla. v. S. Fla. Water Mgmt. Dist., 48 So. 3d 811, 815– 17, 819–21 (Fla. 2010) (validating COPs at the supreme-court level for the public purpose of acquiring land for restoration of Everglades); State v. Sch. Bd. of Sarasota Cnty., 561 So. 2d 549, 550–51 (Fla. 1990) (discussing this factual scenario with respect to a school). 80. FLA.STAT. § 163.387(3)(a) (2016). Because tax increment debt is payable from a trust typically funded in practicality by ad valorem tax proceeds, it would appear that tax increment bonds (frequently called “TIF” bonds for “tax increment financing”) issued 2017] The Evolution of the "Public Purpose" Fulcrum 495
under the Community Redevelopment Act of 1969, FLA.STAT. ch. 163, Part III (the Act), to finance restoration of slum and blighted areas (i) would require a referendum and (ii) would require the showing of a predominate public purpose when the financing is used to entice private investment into a redevelopment project. For a clear discussion of the subtle explanation of why a referendum is not required, see Strand v. Escambia Cnty., 992 So. 2d 150, 156–61 (Fla. 2008), in which the Court literally reversed itself on this precise point, the point being summarized later in Miccosukee, 48 So. 3d at 823 (stating that in Strand, “this Court reaffirmed its long-held distinction between pledges of ad valorem taxing power and the use of ad valorem tax revenues”). The tax increment contributed to the trust fund described below is only measured by the increase in ad valorem assessed value; it may be paid from any lawful source. FLA.STAT. § 163.387(1)(a). Regarding a predominate public purpose, in the seminal TIF case State v. Miami Beach Redevelopment Agency, the Court concluded that the use of eminent domain and TIF financing to acquire, clear, and develop property that will be put to “substantial private and commercial uses after redevelopment[] is in furtherance of a public purpose and is constitutional.” 392 So. 2d 875, 885–91 (Fla. 1980). Some TIF validation cases never address the issue of public purpose and private benefit because the developments to be funded are traditional public works projects. See Strand, 992 So. 2d at 152, 155–56 (four- lane public road widening); City of Parker v. State, 992 So. 2d 171, 174 (Fla. 2008) (funding public infrastructure, streetscapes, and public plaza improvements). Others, however, virtually ignore the issue. See Panama City Beach Cmty. Redevelopment Agency v. State, 831 So. 2d 662, 665 (Fla. 2002) (finding the great quantity of unrefuted information in the record before the city council was competent substantial evidence that supported the city’s conclusion that the area was blighted and therefore qualified for “statutorily authorized revenue bonds” with no analysis of the benefit to the private developer, which had entered a public-private partnership with the city to jointly redevelop the property). The public-purpose latitude shown local governments in financing Community Redevelopment Act projects involving private investors may be the result of two factors combined. First is the fact that the Act requires the local government to follow a lengthy, and very public, statutory process in order to engage in TIF (financing). FLA.STAT. ch. 163, Part III. That process commences with a study, “supported by data and analysis,” to determine whether slum or blight as defined in the Act exists and needs to be addressed. Id. § 163.355. If that step is satisfied, then a redevelopment plan must be adopted to address the specific necessities found in the study. Id. §§ 163.360, 163.362. After that, if TIF is to be used, a trust fund must be established by ordinance to receive, hold, and apply the tax increment only to implement the plan and address the need. Id. § 163.387. All of that is required before a TIF borrowing may proceed. Perhaps this elaborate and very public process is silently accepted as virtually guaranteeing that the public purposes are paramount over the private benefits that will flow from the redevelopment plan. Second, there is a tendency for a legislative designation of sufficient public purpose to be taken at face value by the courts, the same designation by fiat that the dissent railed against in N. Palm Beach Cnty. Water Control Dist. v. State, 604 So. 2d 440, 446–47 (Fla. 1992) (Shaw, J., dissenting). In any event, even though it may be counterintuitive, the Author believes that TIF should be grouped with contributions of current assets as opposed to borrowing against future revenue streams because, if property values decline or if for any year the local governments contributing to the trust fund lower the millage rate to a point that produces no tax increment, the creditor will receive nothing and has no remedy. And this grouping is consistent with the practical fact that the Author found in TIF redevelopment caselaw no reported disputes over lending the local government’s credit to the private parties involved. 496 Stetson Law Review [Vol. 46
IV. EVOLUTION OF PUBLIC PURPOSE IN FLORIDA CONSTITUTIONAL LAW
In the 1800s, Florida had a checkered experience with borrowing money for private railroads and canals that often failed.81 Its bonds were repudiated many times.82 Excesses by the carpetbag government during Reconstruction (1865–1876) generated an amendment to the state constitution to prohibit the legislature from borrowing money for anything except “repelling invasion or suppressing insurrection.”83 On the other hand, local governments were not so limited, and they “had a field day.”84 The Florida “land boom collapsed in the 1920s,” and in 1930 the Florida Constitution of 1885 was amended to require referendum approval of local government bonds.85 To avoid a vote, “local governments turned to . . . revenue bonds.”86 The play was simple: if “the city[] as a taxing unit” was not bound for the debt, then the “certificates” issued to evidence the debt were not “bonds” in the constitutional sense.87 Of course, this was in the era of Dillon’s Rule,88 before home rule,89 so a city was required to possess the express general (statutory) or special (charter) authority to issue the debt and build whatever it intended to build with the proceeds.90 We may speculate that the necessity of this express authorization for the city to become involved in the project in the first place91 may have comforted the Court in holding that, where taxes were not involved, enterprise-fund
81. E.g., Jackson-Shaw Co. v. Jacksonville Aviation Auth., 8 So. 3d 1076, 1085–86 (Fla. 2008); State v. City of Panama City Beach, 529 So. 2d 250, 252 (Fla. 1988). 82. E.g., City of Panama City Beach, 529 So. 2d at 252. 83. Id. 84. Id. (quoting Grover C. Herring & George John Miller, Florida Public Bond Financing—Comments on the Constitutional Aspects, 21 U. MIAMI L. REV. 1, 4 (1966)). 85. City of Panama City Beach, 529 So. 2d at 252. 86. Id. at 253. 87. Panama City v. State, 185 So. 452, 453 (Fla. 1938). 88. City of Boca Raton v. State, 595 So. 2d 25, 27 (Fla. 1992) (“Powers not granted a municipality by the legislature were deemed to be reserved to the legislature. This reservation of authority was known as ‘Dillon’s Rule’ as expressed in John F. Dillon, The Law of Municipal Corporations § 55 (1st ed. 1872). Under the 1885 constitution, the Florida courts consistently followed Dillon’s Rule.”). 89. See supra notes 55–59 and accompanying text (summarizing Florida home rule). 90. Patton v. Panama City, 169 So. 638, 638–39 (Fla. 1936) (affirming that waterworks revenue certificates were not “bonds” requiring referendum where the city was statutorily authorized to own and operate the water system). 91. State v. City of W. Panama City Beach, 127 So. 2d 665, 665 (Fla. 1961) (“No one contests the power of the city to construct and operate the water system.”). 2017] The Evolution of the "Public Purpose" Fulcrum 497 revenue “certificates” (waterworks certificates, for example) were not “bonds.”92 The “outstanding purpose” of the 1930 constitutional amendment had been to restrain the “tendencies of political subdivisions to load the future with obligations to pay for things the present desires.”93 But local governments simply turned to revenue certificates, so what was to limit those borrowings? The opponents of publicly financed quasi-private projects convinced the Court that the 1930 referendum requirement was also “designed ‘to restrict the activities and functions of the State, county and municipality to that of government and forbid their engaging directly or indirectly in commercial enterprises for profit.’”94 In the 1950s in Florida, if a project served a private rather than a public purpose, it could not be financed by a city or county, even if the debt was payable solely from project revenues and no taxes nor “credit” of the city or county was promised.95 That literal statement remains true today—but the meaning of “public purpose” (or alternatively the level of private benefit allowed) has changed dramatically. In 1952, the Town of North Miami attempted to validate non- recourse revenue certificates to finance construction of an aluminum manufacturing plant to be leased to a private party and create jobs and significant economic benefits.96 In the leading opinion of the time, Town of North Miami, the Court turned down the project because it found that the legislature could not have constitutionally authorized this use of public money to benefit a private party.97 As summarized by the Court:
Every new business, manufacturing plant, or industrial plant which may be established in a municipality will be of some benefit to the municipality. A new super market, a new department store, a new meat market, a steel mill, a crate
92. This semantic distinction may have fulfilled an economic and social need, but at their respective cores, both terms merely refer to the written evidence of an executory promise to pay money, the same as does the term “promissory note.” 93. State v. City of Panama City Beach, 529 So. 2d 250, 252–53 (Fla. 1988) (quoting Leon Cnty. v. State, 165 So. 666, 669 (Fla. 1936)). 94. City of Panama City Beach, 529 So. 2d at 253 (quoting Bailey v. City of Tampa, 111 So. 119, 120 (Fla. 1926)) (citing Brautigam v. White, 64 So. 2d 781, 782 (Fla. 1953)). 95. State v. Town of N. Miami, 59 So. 2d 779, 780–81, 787 (Fla. 1952). 96. Id. at 780. 97. Id. at 787. 498 Stetson Law Review [Vol. 46
manufacturing plant, a pulp mill, or other establishments which could be named without end, may be of material benefit to the growth, progress, development and prosperity of a municipality. But these considerations do not make the acquisition of land and the erection of buildings, for such purposes, a municipal purpose.98
The Court further explained:
Our organic law prohibits the expenditure of public money for a private purpose. It does not matter whether the money is derived by ad valorem taxes, by gift, or otherwise. It is public money and under our organic law public money cannot be appropriated for a private purpose or used for the purpose of acquiring property for the benefit of a private concern. It does not matter that [sic] such undertakings may be called or how worthwhile they may appear to be at the passing moment. The financing of private enterprises by means of public funds is entirely foreign to a proper concept of our constitutional system. Experience has shown that such encroachments will lead inevitably to the ultimate destruction of the private enterprise system.99
At the same time, an equally strict view of public purpose arose in the realm of eminent domain in order to protect private property rights.100 Protecting private property rights and protecting private business from government competition became complementary sides of the same coin and represented a common posture of the Court in the late 1940s and 1950s.101 The unqualified clarity of the Court’s eminent domain opinions complemented the Court’s narrow lending-credit opinions. A seminal eminent domain case for the era involved an attempt to condemn a privately owned and fenced hunting preserve into a public park.102 In Peavy-Wilson Lumber Co. v. Brevard County,
98. Id. at 784–85. 99. Id. at 785. 100. E.g., Peavy-Wilson Lumber Co. v. Brevard Cnty., 31 So. 2d 483 (Fla. 1947). 101. See, e.g., Town of N. Miami, 59 So. 2d at 785: Our government was founded upon the firm foundation that private property cannot be taken except when it will serve a public purpose. . . . If private property may be purchased by the municipality for the use and benefit of a private corporation, then it may be acquired by the great power of eminent domain for such a purpose. 102. Peavy-Wilson Lumber Co., 31 So. 2d at 484. 2017] The Evolution of the "Public Purpose" Fulcrum 499 the land owner had fenced out local hunters who found relief in a sympathetic county commission.103 The 1947 Court ignored a lesser threshold of “public benefit” and held there was no “public necessity” for the taking:
[T]he sum total of the claim was founded on “public demand,” “public desire” and “public benefit” rather than “public necessity.” . . . There surely must be some rule of law which will safeguard the rights of citizens and yet unhamper organized society to govern its citizens and provide the public necessities requisite to the general welfare. . . . To take one man’s property, against his will—at public expense, and make it available to a group who may have the leisure and inclination to hunt and fish constitutes a private rather than a public use.
...
Public benefit follows naturally when any worthy enterprise is established, resulting in employment and greater taxes for the government; but public necessity does not require that the several counties should condemn private property and engage in competition with the citizens who make a living by providing hunting and fishing lodges and other forms of amusement.104
The term “public necessity”105 did not flourish, yet the holding that employment was not a sufficient public purpose to condemn land demonstrates the tenor of the Court in the 1940s. Five years later, the City of Daytona Beach tried essentially the same thing with what it believed to be a controlling distinction.106 The Court disagreed.107 The land in the Daytona Beach case was blighted, and the taking was planned for a redevelopment108 project.109 Still no love from the Court, which emphatically stated:
103. Id. at 485. 104. Id. at 486–87. 105. Id. 106. Adams v. Hous. Auth. of City of Daytona Beach, 60 So. 2d 663, 664–65 (Fla. 1952), overruled by Baycol, Inc. v. Downtown Dev. Auth. of City of Fort Lauderdale, 315 So. 2d 451 (Fla. 1975). 107. Id. at 669. 108. Under the Court’s interpretation of public purpose in the context of eminent domain and the Constitution of 1968, the Daytona project would have been routine prior to the Florida legislature’s reaction to the U.S. Supreme Court’s decision in Kelo v. City of New London, Conn., 545 U.S. 469, 483–84 (2005) (holding that the City's exercise of 500 Stetson Law Review [Vol. 46
It is inconceivable that any one would seriously contend that the acquisition of real estate for the declared purposes [retail,
eminent domain power in furtherance of an economic development plan satisfied the federal constitutional “public use” requirement and affirming prior cases reading “public use” to mean “public purpose”). But see FLA.STAT. §§ 73.013, 73.014, 166.411 (2016) (instituting stricter restraints on state government eminent domain actions than the permissive stature of Kelo). Theoretically, under Florida law, economic development (promoting the good) was never a sufficient public purpose for a city or county to take private property through eminent domain because, arguably, a higher standard of eliminating the evils and social ills of blight was required. But many felt the distinction was without a difference. In 2006, the legislature revised sections 73.013, 73.014, 166.411 (Laws Chapter 2006-11, Laws of Florida, 2006) to severely curtail the authority of a local government or a Community Redevelopment Agency to use eminent domain to assemble contiguous tracts of private property in order to make possible a private redevelopment project eliminating blight. Whether at that time there was a viable distinction in Florida law between economic development and blight elimination was the subject of some debate. In a June 2006 article, the Fort Lauderdale Sun Sentinel quoted Frank Schnidman, a Florida Atlantic University economic development professor with thirty years of expertise in land policy issues, as follows:
I [recently] said the bill [Chapter 2006-11, Laws of Florida, 2006] was a perfect example of the Legislature putting its mouth in drive before putting its brain in gear. The decision [Kelo] was handed down and [Attorney General] Charlie Crist came out with an opinion that said, “Florida is safe because it could never happen here.” The governor issued a press release, the House set up a select committee, the Senate set up a committee, and they were all going to protect us from the evils of the Supreme Court and the feds. What they said in their arrogance was, “We’re going to be the leader. We’re going to not only fix the problem[;] we’re going to make model legislation for the whole country.”
But what they should have done was humbly apologize to the taxpayers of Florida because they created the problem. Over the years we have allowed the chamber of commerce types to change the definition of what’s blighted so that it covers almost anything. The thing that should have been done in Florida is that they should have just tightened the definitions relating to what’s blighted. But instead what they did was they prohibited in any shape or form the use of eminent domain for redevelopment. In the statute is says that it’s not a public purpose under the Constitution to alleviate slum and blight. Well, the Legislature can say that, but it’ll be the courts that determine what the Constitution means. .. . I’m predicting that the Legislature is going to have to come back. This is a major glitch. What if we have a major hurricane? How do you assemble the property in order to be able to rebuild? Or how do you deal with true blighted property?
Nicole Sterghos Brochu, Face to Face: A Conversation with Frank Schnidman,SUN SENTINEL (June 25, 2006), http://www.sun-sentinel.com/opinion/sfl-opqa25jun25- story.html. Mr. Schnidman was correct that the courts are the ultimate arbiters of what is a public purpose under the Constitution, but in the field of eminent domain the Legislature controls the gate and may lock out local government if it chooses to do so. So far his prediction has not come true. 109. Adams, 60 So. 2d at 664–65. 2017] The Evolution of the "Public Purpose" Fulcrum 501
wholesale, and office space] set forth in the proposed Redevelopment Plan is for a public use or purpose. No one has ever heard of any corporation, association or individual going into any of the above mentioned businesses except for profit or gain. If the municipalities can be vested with any such power or authority, they can take over the entire field of private enterprise without limit so long as they can find a blighted area containing sufficient real estate.110
In the Daytona Beach eminent domain case, the Court relied more upon the protection of private enterprise from government intrusion than it did upon the protection of private property rights.111 Restraining government from intrusion into the private sector through either eminent domain or direct economic competition was the Court’s order of the day, but the tide was about to change. One year after the City of Daytona lost its redevelopment case,112 the Court in 1953 bent a little to uphold Jacksonville’s plan to take property by eminent domain, lease a portion for a filling station, and borrow money to build a public, fee-for-service parking garage to be repaid solely from revenue generated by the project.113 In Gate City Garage, Inc. v. City of Jacksonville,114 the Court yielded just enough to allow Jacksonville to deal with its parking problem and decided that:
Constructing and leasing a filling station on a parking lot the size of that contemplated is a mere incident, the primary purpose being to acquire and construct a parking lot to serve a public and municipal purpose.
.. .
110. Id. at 668–69. 111. A good self-analysis of the Court’s “drawing away” from the rigors of Peavy-Wilson Lumber Co. and Adams appears in Baycol, Inc. v. Downtown Dev. Auth. of City of Ft. Lauderdale, 315 So. 2d 451, 457 (Fla. 1975). Baycol recognizes as “crystalized” the point that clearing slum areas by eminent domain to remove “breeding places for crime and disease” is a sufficient and constitutional public purpose even though the low income housing to be developed will be owned by private parties, but refuses to extend that principle to a parking garage intended to serve primarily a private shopping center to be developed. 315 So. 2d at 457–58 (quoting Grubstein v. Urban Renewal Agency of City of Tampa, 115 So. 2d 745, 748 (Fla. 1959)). See supra text accompanying note 108 (discussing Florida’s post-Kelo legislative reaction). 112. Adams, 60 So. 2d at 670. 113. Gate City Garage, Inc. v. City of Jacksonville, 66 So. 2d 653, 658–63 (Fla. 1953). 114. Id. at 653. 502 Stetson Law Review [Vol. 46
“[A] public purpose which is primary and paramount will not be defeated by the fact that incidentally a private use or benefit will result.”115
Times had changed. North and South Korea had signed a peace treaty. The “forgotten war” was, well, unfortunately forgotten by some.116 A peaceful nation was prospering, so why should the government not play a part in stoking the economic fires?117 The Court opened the door for all that was to come. The dual, overlapping proportionality test we have today was born. Non-recourse, revenue bonds could be sold to finance a project that would have a private component without violating the prohibition against lending credit if the project was for a paramount public purpose with merely an incidental private benefit. Note that the test was born in a non-recourse, revenue bond case—no tax proceeds nor taxing power involved.118 Over the next fifteen years (c. 1952–1967), a variety of projects to be funded by both project revenue and excise (non-ad valorem) taxes were examined using this test, or something similar, with a predictable lack of consistency, although the Court contends that it was consistent.119 The holdings from those opinions were as follows:
115. Id. at 659 (quoting 18 Am. Jur. Eminent Domain § 41 (1936)) (emphasis added). 116. Richard Ernsberger Jr., Interview: Melinda Pash: Why Is Korea the “Forgotten War”?,AM. HIST., June 2014, at 24, available at http://www.historynet.com/interview- melinda-pash-why-is-korea-the-forgotten-war.htm#sthash.6zYfgEj8.dpuf. 117. See David E. Pinsky, State Constitutional Limitations on Public Industrial Financing: An Historical and Economic Approach, 111 U. PA. L. REV. 265, 323 (1963): [After WWII] [n]egative attitudes toward expanding government were overcome by a resurgence of the American drive for growth and progress. The primary economic energy for this drive has come from the industrially underdeveloped southern and border states which are in the midst of their regional take-off. Significant secondary support has come from the mature economies of the Middle Atlantic and New England states that have decided to come to grips with the many adverse long run regional trends. 118. Gate City Garage, 66 So. 2d at 654. 119. State v. Jacksonville Port Auth., 204 So. 2d 881, 883 (Fla. 1967) (“In the past fifteen years a majority of this Court has consistently adhered to the mandates of this section of the Constitution when confronted by proposals to issue public securities in which the private interests to be served by the overall project was more than incidental.”); Orange Cnty. Indus. Dev. Auth. v. State, 427 So. 2d 174, 179 (Fla. 1983). Running throughout this Court’s decisions on paramount public purpose is a consistent theme. It is that there is required a paramount public purpose with only an incidental private benefit. If there is only an incidental benefit to a 2017] The Evolution of the "Public Purpose" Fulcrum 503
VALID: Non-recourse project revenue bonds to purchase and improve the Pensacola Beach Casino and recreational facilities to be leased to private parties to promote tourism as part of a larger project to develop infrastructure on Santa Rosa Island.120 VALID: University student dormitory revenue certificates. “An incidental use or benefit which may be of some private benefit is not the proper test in determining whether or not the project is for a public purpose.”121 VALID: Non-recourse revenue certificates to finance construction of a warehouse to be leased to the Orange Bowl Committee of Miami to store floats and equipment necessary for the Orange Bowl Festival.122 VALID: Non-recourse revenue bonds to finance construction and maintenance of the Daytona racetrack to be turned over to a corporation not less than six months per year; corporation would realize profit. Races found to promote tourism by offering entertainment which must be offered because “[t]he sand and the sun and the water are not sufficient to attract those seeking a vacation and recreation. . . . The public purpose here seems to be predominant [not ‘paramount’] and the private benefit and gain to be incidental.”123 VALID: Combination of project revenue (twenty percent) and excise tax revenue (eighty percent) pledged to finance construction of city marina to contain city hall, civic auditorium, and two private concessions buildings and public slips. Private use was found to be “incidental to the operation of the marina . . . not the principle purpose of the undertaking.”124 VALID: Portion of public land previously purchased set aside for private, commercial purposes as part of balanced over-
private party, then the bonds will be validated since the private benefits “are not so substantial as to tarnish the public character” of the project. Id. (quoting State v. City of Miami, 379 So. 2d 651, 653 (Fla. 1980)). 120. State v. Escambia Cnty., 52 So. 2d 125, 127–30 (Fla. 1951). 121. State v. Bd. of Control, 66 So. 2d 209, 211, 213 (Fla. 1953). 122. State v. City of Miami, 72 So. 2d 655, 655–66 (Fla. 1954). 123. State v. Daytona Beach Racing & Recreational Facilities Dist., 89 So. 2d 34, 35–38 (Fla. 1956). 124. Panama City v. State, 93 So. 2d 608, 610–11, 614 (Fla. 1957). 504 Stetson Law Review [Vol. 46 all plan for the County’s development was “incidental” to “primary purpose.”125 INVALID: Purchase of real estate and construction of a building to be leased to a private business was a private purpose rather than a first step in an over-all public development.126 INVALID: The “primary purpose” of non-recourse revenue certificates to finance the construction of an industrial plant on a small portion of a former airfield for lease to a corporation was to “finance private enterprise.”
The only possible public purpose which it serves is to promote the general development of the area by furnishing employment to the residents of Clay County. This is the factor which prompted the project. If [the Court] approve[s] the issuance of bonds by the public authorities of this State to build and finance private enterprises and put such enterprises in the exclusive possession and control of such leases as is proposed to be done here, in order to alleviate unemployment and to promote the economic development of the area, then there is no limit to the extent to which the credit of the State and its authorities may be extended to private interests. In such event the constitutional provision above quoted will become meaningless.127
INVALID: County was borrowing from the United States to aid in financing a rural development project so that rural home sites could be constructed and sold to private purchasers.128 INVALID: Sixty percent of new port facilities would be used exclusively by two railroads. The provision for public dockage space for general cargo was inconsequential and incident to the main object to use public funds to assist private enterprise. Race track (enterprise fund) revenue was to be pledged. Private benefit not “incidental.”
[The Court] thought and hoped that [it] had laid down a specific exception to the rule that public funds may not be spent for private purposes. This rule was announced as early
125. State ex rel. Ervin v. Cotney, 104 So. 2d 346, 349 (Fla. 1958). 126. State v. Suwannee Cnty. Dev. Auth. of Suwannee Cnty., 122 So. 2d 190, 191–92 (Fla. 1960) (distinguishing Cotney on ground that the private use in that case was an incidental, first step, which was not the case here). 127. State v. Clay Cnty. Dev. Auth., 140 So. 2d 576, 580 (Fla. 1962). 128. State v. Washington Cnty. Dev. Auth., 178 So. 2d 573, 573–74 (Fla. 1965). 2017] The Evolution of the "Public Purpose" Fulcrum 505
as 1933 in the case of Brumby v. City of Clearwater, 108 Fla. 633, 149 So. 203. In the intervening years, the exception has been recognized. [The Court has] repeatedly held that use of part of the proceeds of such bonds for incidental private operations will not vitiate the entire issue, but [it has] reiterated the restriction that diversion of any part of the funds will not be tolerated unless the expenditure is purely incidental to the main project.129
INVALID: Excise tax improvement bonds to purchase land, construct buildings, furnish equipment, and lease it to private party for spring training headquarters was only an “incidental advantage to the public” and not a “public or municipal purpose.”130
This line of cases culminated in State v. Jacksonville Port Authority,131 in which the Court refused to validate non-recourse, project revenue bonds to finance a shipyard to be leased and operated by Lockheed Aircraft Corporation, which would promote the public port and the general welfare of the area by increasing payrolls and providing employment.132 The Court appeared to tire of bucking the trend of other state governments, which were using public assets to attract and leverage private investment, noting that:
The question of whether the public welfare will be promoted by the issuance of public securities to finance or aid in the financing or the construction and operation of private enterprise as is presently being done in some states under specific constitutional or statutory provisions is not for this Court to decide. Perhaps the modern trend of government encroachment on the free enterprise system is the wise road to follow. So long, however, as the Constitution reads as it does now, it seems clear that we have no choice in the matter.133
One year later, in 1968, the people of Florida amended the state constitution to expressly—and according to the Court,
129. State v. Manatee Cnty. Port Auth., 193 So. 2d 162, 163–64 (Fla. 1966). 130. Brandes v. City of Deerfield Beach, 186 So. 2d 6, 7, 12 (Fla. 1966). 131. 204 So. 2d 881 (Fla. 1967). 132. Id. at 881, 885. 133. Id. at 882–83. 506 Stetson Law Review [Vol. 46 impliedly134—authorize a wide variety of non-recourse, public revenue bonds to finance projects with material private benefits.
134. FLA.CONST. art. VII, § 10. To some, including the Author, a literal construction of this section would read subsection (c) as merely an exception from the subsection (a) prohibition against lending credit, an exception that is set out to support only the few types of revenue bonds expressly listed in subsection (c) and not as an implied authorization to issue revenue bonds for other purposes so long as the “predominate public purpose and incidental private benefit” test developed under the 1885 Constitution is met. The Court read just the opposite and held open the door to permit the broad spectrum of revenue bonds available in other states. But the logic is strained at best, or at least the language used to convey the logic is strained: It appears that the framers of Fla. Const., art. VII, s 10(c) (1968), . . . provided that the public revenue bond financing of these projects (airports, ports or industrial or manufacturing plants) alone, in contrast to the financing of any other projects, was recognized by the Constitution itself as not constituting the lending or use of public credit. Moreover, the naming of these particular projects was not intended to be exclusive, denying ab initio public revenue bond financing of all other types of projects. The language employed is not that no public revenue bonds shall be issued to finance any projects except those described in [s]ection 10(c), but that the prohibition against lending a public unit’s credit does not apply to the projects described in [s]ection 10(c). This language may or may not apply to other projects, depending upon the particular circumstances in each instance.
All other proposed public revenue bond projects not falling into the exempted class described in [s]ection 10(c) of Article VII would, of course, have to run the gauntlet of prior case decisions to test whether the lending or use of public credit for any of them was contemplated. See, for example, the case of State v. Jacksonville Port Authority, 204 So. 2d 881 (Fla. 1967), which presents a good index to decisions of this Court on both sides of the subject. It will be noted that under similar language in the 1885 Constitution ([s]ection 10, Article IX) to that appearing in the first paragraph of [s]ection 10 of Article VII of the 1968 Constitution the cases hold that the validity of each proposed public revenue bond financing project depends upon the circumstances, e.g., whether the purpose of the project serves a paramount public purpose, although there might be an incidental private benefit, and other criteria. Nohrr v. Brevard Cnty. Educ. Facilities Auth., 247 So. 2d 304, 308–09 (Fla. 1971) (emphasis added) (validating revenue bonds for private college dorm). Appellant characterizes subsection (c) as an exception to the prohibition against the pledging of public credit contained in the first paragraph of section 10. This characterization is misleading because it tends to focus exclusive attention on “industrial and manufacturing.” More properly and closely read, subsection (c) is actually an interpretation of the first paragraph: non-recourse revenue bonds do not pledge the public credit. Nohrr [247 So. 2d 304]. Nothing is permitted by subsection (c) which is prohibited by the first paragraph. A governmental body may not pledge the public credit for a private entity. This distinction between an exception and an interpretation can be clearly seen if subsection (c) is contrasted with subsection (d), which permits a government body to become a joint owner with, or give, lend, or use its taxing power or credit to aid, any corporation, association, partnership or person, for projects involving electrical energy generation or transmission facilities. Subsection (d) 2017] The Evolution of the "Public Purpose" Fulcrum 507
In the case of Linscott v. Orange County Industrial Development Authority,135 the Court was given the opportunity to reflect upon the purpose of the 1968 pledging-of-credit amendment:
The impact of the adoption of article VII, section 10(c) of the Florida Constitution (1968) was to recognize constitutionally that the public interest was served by facilitating private economic development and to overturn Town of North Miami and Jacksonville Port Authority holdings that non-recourse revenue bonds were pledges of the public credit.
.. .
With the adoption of the Constitution of 1968, the “paramount public purpose” test developed by [caselaw] under the Constitution of 1885 lost much of its viability. The test is still applicable when a pledge of public credit is involved, but where such pledge is not involved, as here, it is enough to show only that a public purpose is served.136
However, as Robert Nabors succinctly explained to the Florida Municipal Attorneys Association in 2010,
The decision in Orange County Industrial Dev. Auth. v. State, 427 So. 2d 174 (Fla. 1983), is arguably inconsistent with the decision in Linscott v. Orange County Industrial Dev. Auth. [443 So. 2d 97, 100–01 (Fla. 1983)]. In Linscott, it was held that the construction of a regional headquarters office of a multi-state insurance company that was to be financed with non-recourse revenue bonds only had to meet a public purpose test. However, in Orange County Industrial Development Authority [] it was held that the non-recourse revenue bonds issued to construct television broadcast studios and related offices were required to satisfy a paramount public purpose
thus grants an exception to the prohibitions of the first paragraph; subsection (c) grants no such exception. Linscott v. Orange Cnty. Indus. Dev. Auth., 443 So. 2d 97, 100–01 (Fla. 1983) (validating revenue bonds for regional headquarters of multistate insurance company). In a subsequent case, the Court itself referred to the lettered subparagraph as an “exception” but then proceeded to apply the earlier logic (or illogic) of Linscott set out above (that the subsection is not an “exception” but rather is an “interpretation”) in order to validate the bonds. State v. Osceola Cnty., 752 So. 2d 530, 535 (Fla. 1999). 135. 443 So. 2d at 100–01 (validating non-recourse, project revenue bonds for the regional headquarters of a multistate insurance company). 136. Id. 508 Stetson Law Review [Vol. 46
test even though no tax or public funds were pledged under the bond structure.
Under the reasoning of the Court in the Orange County Industrial Dev. Auth. decision,... [for a project impliedly authorized] under Article VII, section 10(c), Florida Constitution, the paramount public purpose test is applied notwithstanding the 1968 constitutional amendment relating to non-recourse revenue bonds under the analysis in Linscott.137
More recently, and ignoring the conflict between its two 1983 opinions in Linscott and Orange County, the Court in Jackson- Shaw Co. v. Jacksonville Aviation Authority138 came down squarely on the side of a “mere public purpose” standard for non- recourse, project revenue bonds. The Court held that a complex, public-to-private lease and infrastructure development agreement was constitutional because no public credit was involved, and so
[i]f the State or a political subdivision has not given, lent, or used its credit, a project must merely serve a public purpose. This Court has explained that under the public purpose test “it is immaterial that the primary beneficiary of a project be a private party, if the public interest, even though indirect, is present and sufficiently strong.” However, this Court has also cautioned that “public bodies cannot appropriate public funds indiscriminately, or for the benefit of private parties, where there is not a reasonable and adequate public interest.” Even where there is no proposed public indebtedness, neither the State nor a political subdivision “may expend public funds for or participate at all in a project that is not of some substantial benefit to the public.”139
Conversely, the Court stated in dicta, “On the other hand, if the State or a political subdivision has given, lent, or used its credit, a project ‘must serve a paramount public purpose and any benefits to a private party must be incidental.’”140 The opinion in
137. Robert L. Nabors, Nabors, Giblin & Nickerson, P.A., Back to Basics: Municipal Economic Development Incentives 8–9 (July 29, 2010) (transcript on file with the Author and Stetson Law Review). 138. 8 So. 3d 1076 (Fla. 2008). 139. Id. at 1095 (emphasis added) (internal citations omitted). 140. Id. (internal citations omitted). 2017] The Evolution of the "Public Purpose" Fulcrum 509
Jackson-Shaw is a must-read for an economic development or redevelopment project involving non-recourse, project revenue debt; a public-private lease; or any form of current asset-transfer agreement. Apparently a “mere public purpose” means only “some substantial benefit to the public” which may be “indirect.” Shortly after deciding Jackson-Shaw, in another must-read case, Miccosukee Tribe of Indians of Florida v. South Florida Water Management District,141 the Court summarized its prior holdings:
The basic test for determining whether an expenditure of public funds violates this section of the Florida Constitution is whether such expenditure is made to accomplish a public purpose. If the District has used either its taxing power or pledge of credit to support issuance of bonds, the purpose of the obligation must serve a paramount public purpose and any benefits to a private party must be incidental. If the District has not exercised its taxing power or pledged its credit to support the bond obligation, the obligation is valid if it serves a public purpose. Incidental private benefit from a public revenue bond issue is not sufficient to negate the public character of the project.
As used in article VII, section 10, “credit” means “the imposition of some new financial liability upon the State or a political subdivision which in effect results in the creation of a State or political subdivision debt for the benefit of private enterprises.” This Court has explained that the lending of credit means:
[T]he assumption by the public body of some degree of direct or indirect obligation to pay a debt of the third party. Where there is no direct or indirect undertaking by the public body to pay the obligation from public funds, and no public property is placed in jeopardy by a default of the third party, there is no lending of public credit.142
A. A Bridge Too Far?
Does a sixteen-million-dollar, six-mile road with extensive landscaping to provide access and enhance the “Caribbean
141. 48 So. 3d 811 (Fla. 2010). 142. Id. at 822 (citing State v. Hous. Fin. Auth. of Polk Cnty., 376 So. 2d 1158, 1160 (Fla. 1979)) (alterations in original) (internal citations omitted). 510 Stetson Law Review [Vol. 46
Island” motif of a private, three-course golf community with million-dollar houses serve a public purpose? Yes,143 according to the majority in Northern Palm Beach County Water Control District v. State.144 The bond resolution in this case referred to the revenue stream as a “drainage tax,” but the Court properly found that it was a valid special assessment,145 not a tax, and hence the credit of the District was not pledged.146 Because the District’s credit was not pledged, “the bonds need[ed] only serve a public purpose rather than a paramount public purpose.”147 Because the District’s enabling legislation declared that “‘provision in a water management plan for roads for the exclusive use and benefit of a unit of development and its residents’ to be a ‘public purpose,’” the Court validated the bonds without discussion.148 The dissent was more colorful in finding that, as a matter of fact within the province of the Court, no public purpose was served. Quoting the dissent:
Simply designating a project “public” by legislative fiat does not necessarily make it so, especially where uncontroverted facts attest otherwise. A quote from Lewis Carroll makes the point:
“I don’t know what you mean by ‘glory,’” Alice said.
Humpty Dumpty smiled contemptuously. “Of course you don’t—till I tell you. I meant ‘there’s a nice knock-down argument for you!’”
“But ‘glory’ doesn’t mean ‘a nice knock-down argument,’” Alice objected.
143. Caveat: do not try this at home without adult supervision, as it requires a special act of the legislature. 144. 604 So. 2d 440 (Fla. 1992) (reversing the trial court’s refusal to validate special assessment bonds). 145. Valid special assessments are those that benefit the property assessed and are reasonably apportioned. City of Boca Raton v. State, 595 So. 2d 25, 29 (Fla. 1992). 146. N. Palm Beach Cnty. Water Control Dist., 604 So. 2d at 442. 147. Id. 148. Id. at 443; see also Wald v. Sarasota Cnty. Health Facilities Auth., 360 So. 2d 763, 770 (Fla. 1978) (no independent judicial inquiry made as to whether private hospital project served a paramount public interest where legislature had found in enabling legislation that such facilities were in the public interest). 2017] The Evolution of the "Public Purpose" Fulcrum 511
“When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.”
“The question is,” said Alice, “whether you can make words mean so many different things.”
“The question is,” said Humpty Dumpty, “which is to be master—that’s all.”
Lewis Carroll, Through the Looking Glass 113 (Dial Books for Young Readers, NAL Penguin, Inc. 1988) (1872). Under our constitutional system of government in Florida, courts, not legislators or water control districts, are the ultimate “masters” of the constitutional meaning of such terms as “public purpose” in judicial proceedings.
.. .
It is perfectly clear to me that the District’s bond project serves a simple, very private, purpose. It allows the owners of the proposed 2,384 residences within the Club to capitalize on a massive tax-break, intended for public projects, in financing the construction of a luxurious environment for their own private use. The undertaking smacks of state-sponsored, economic apartheid. I can conceive of few more private projects.149
149. N. Palm Beach Cnty., 604 So. 2d at 446–47 (Shaw, J., dissenting). The opinion reflects that there was to be a guardhouse on the road to deny public access and use. The dissent also offered a clear picture of the history and purpose of the prohibition against lending credit: The purpose of section 10 [article VII, Florida Constitution] is to prevent state government from using its vast resources to monopolize, or otherwise “destroy,” a segment of private enterprise, and also “to protect public funds and resources from being exploited in assisting or promoting private ventures when the public would be at most only incidentally benefited.” Bannon v. Port of Palm Beach Dist., 246 So. 2d 737, 741 (Fla. 1971). To pass constitutional muster, a government bond issue must serve a truly public purpose, i.e., it must bestow a benefit on society exceeding that which is normally attendant to any successful business venture. Id. at 446. Unfortunately, the dissent was mistaken in grounding its objection, in part, on Florida Constitution Article VII, section 10. This is because no public credit was pledged. The bonds were supported entirely by special assessments; the power to tax was not involved, so section 10 was not implicated. The quotes from Alice and Humpty Dumpty framed the real issue, which was simply whether the road served even that minimal level 512 Stetson Law Review [Vol. 46
B. Sometimes a Bridge Must Be Crossed in Order to See It
In the 1980s, the City of Panama City Beach built a competitive sports venue.150 Unfortunately, the park did not generate sufficient revenues to meet the growing demand, so the City attempted to start an investment bank by issuing taxable, non-recourse revenue bonds and lending the money to insurance companies through guaranteed income contracts.151 The profit would fund the sports park. At the time, positive arbitrage was possible if the City invested the proceeds with an insurance company having a credit rating satisfactory to the bond buyers. In essence, the City proposed to serve as a conduit to connect a private borrower with the taxable muni-bond market.152 The Court in 1988 found that the City had the home-rule authority to issue the bonds because the profit would be used for a valid municipal purpose.153 In short order, three years later in 1991, the Court receded from its Panama City Beach decision:
We now conclude that borrowing money for the primary purpose of reinvestment is not a valid municipal purpose as contemplated by article VIII, section 2(b). A municipality exists in order to provide services to its inhabitants. As noted in then-Chief Justice McDonald’s dissenting opinion in State v. City of Panama City Beach, we “see no valid public purpose in investing for investing’s sake. Making a profit on an investment is an aspect of commerce more properly left to commercial banking and business entities.”154
V. TWO ACES IN THE HOLE
A local government and its lawyers have two great advantages in defining and proving that the use of a particular
of public purpose needed to justify every governmental action, and whether the state legislature saying that it did made it so. 150. Frank Brown Park, 16200 Panama City Beach Parkway, Panama City Beach, Florida, 32413. 151. State v. City of Panama City Beach, 529 So. 2d 250, 250 (Fla. 1988). 152. Id. at 251 (discussing tax exempt and taxable arbitrage bond schemes available in 1988). 153. Id. at 255 (relying upon the reasoning in State v. City of Sunrise, 354 So. 2d 1206 (Fla. 1978), that no specific authorization to issue revenue bonds is required; the only limitation on a constitutional grant of home-rule power is that it must be for a “municipal purpose”). 154. State v. City of Orlando, 576 So. 2d 1315, 1317 (Fla. 1991). 2017] The Evolution of the "Public Purpose" Fulcrum 513 public asset as leverage in order to acquire private capital or expertise serves a public purpose or, where required, serves a predominate public purpose with only incidental private benefit. These are (1) deferential judicial review and (2) the validation suit.
A. Deferential Judicial Review
It is better to be lucky than smart. But in these matters, a smart local government has the power to make its own luck. Short of criminal sabotage or a clean sweep at the ballot box, opponents of a project have only the courts to stop it. Separation of powers155 gives a city or county an advantage if it will merely take the time, and expend the effort, to act smartly and be mindful that the “Court has held that ‘legislative declarations of public purpose are presumed valid and should be considered correct unless patently erroneous.’”156 This can be done either:
By relying upon an enabling statute where the state legislature has declared a sufficient public purpose157 (and hopefully someone else has successfully litigated it158), or
155. Sebring Airport Auth. v. McIntyre, 783 So. 2d 238, 244 (Fla. 2001). This Court has consistently recognized that the judiciary has an obligation, pursuant to the separation of powers contained in article II, section 3 of the Florida Constitution, to construe statutory pronouncements in strict accord with the legislative will, so long as the statute does not violate organic principles of constitutional law. Id. (internal citations omitted). 156. Miccosukee Tribe of Indians of Fla. v. S. Fla. Water Mgmt. Dist., 48 So. 3d 811, 819 (Fla. 2010) (quoting Strand v. Escambia Cnty., 992 So. 2d 150, 156 (Fla. 2008)). 157. And they are becoming legion, but not all available to a city. See The Florida Legislature, Annual Reports,OFF.ECON.&DEMOGRAPHIC RES. (2016), www.edr.state.fl .us/Content/local-government/reports/index.cfm#incentives-report (listing a range of annual reports from Florida); The Florida Legislature, Local Government Economic Development Incentives,OFF.ECON.&DEMOGRAPHIC RES. (2016), http://edr.state.fl.us/ Content/local-government/economic-development-incentives (listing information on incentives regarding economic development in Florida); STATE OF FLORIDA DEPARTMENT OF REVENUE, Tax Incentives (2016), http://dor.myflorida.com/dor/taxes/tax_incentives.html (listing a range of tax incentives and credits in Florida); FLORIDA GOVERNOR, Financial Incentives (2016), www.flgov.com/financial-incentives (listing a range of financial incentives in Florida); ENTERPRISE FLORIDA, Incentives, www.enterpriseflorida.com/why- florida/business-climate/incentives (listing a range of incentives for businesses); Robert L. Nabors, Nabors, Giblin & Nickerson, P.A., Local Government Incentives for Economic Development 55–61 (July 11, 1996) (transcript on file with the Author and Stetson Law Review). 158. See, e.g., State v. Orange Cnty. Indus. Dev. Auth., 417 So. 2d 959, 962 (Fla. 1982). 514 Stetson Law Review [Vol. 46
By using its own home-rule powers159 and building a detailed record of competent substantial evidence supporting the public purpose.
In a seminal case on point, a local government did both.160 It relied upon the Florida Housing Finance Authority Law161 and also held a series of meetings and took testimony supporting a determination that there was a shortage of housing and capital available for investment in housing, and that the use of the bond proceeds to purchase mortgages of private residences served a public purpose.162 To quote the Court in validating the non- recourse revenue bonds:
In the case sub judice, there existed a specific finding by the legislature, the Board of County Commissioners, and the Authority that the project is related to the health, safety, morals, and welfare of the residents of Polk County. What constitutes a public purpose is, in the first instance, a question for the legislature to determine, and its opinion should be given great weight. A legislative declaration of public purpose is presumed to be valid, and should be deemed correct unless so clearly erroneous as to be beyond the power of the legislature.
The findings by the legislature contained in section 159.602, Florida Statutes (1978), should not be disturbed. [The Court] find[s] that the issuance of the Authority’s revenue bonds is adequately supported by a proper public purpose.163
The legislature in essence codified the City of Miami decision by the 1980 amendment to the Florida Industrial Development Financing Act. The amendment, which is now under attack, provides that a hotel in connection with a convention center is an eligible project. When the legislature makes a determination of public purpose, a party challenging such a legislative determination must show that such determination “was so clearly wrong as to be beyond the power of the Legislature.” Id. 159. Strand, 992 So. 2d at 159. See discussion at supra note 31 (confirming the county’s home-rule authority to create a new tax-increment financing mechanism). 160. State v. Hous. Fin. Auth. of Polk Cnty., 376 So. 2d 1158 (Fla. 1979). 161. FLA.STAT. §§ 159.601–623 (2016) (“Florida Housing Finance Authority Law”). 162. Hous. Fin. Auth. of Polk Cnty., 376 So. 2d at 1159. 163. Id. at 1160 (internal citations omitted). 2017] The Evolution of the "Public Purpose" Fulcrum 515
The case also reinforces the fact that where there is no lending of public credit, a mere public purpose will suffice, as opposed to a predominate public purpose. The Court provided,
We have pointed out that the lending of credit means the assumption by the public body of some degree of direct or indirect obligation to pay a debt of the third party. Where there is no direct or indirect undertaking by the public body to pay the obligation from public funds, and no public property is placed in jeopardy by a default of the third party, there is no lending of public credit. Under the constitution of 1968, it is immaterial that the primary beneficiary of a project be a private party, if the public interest, even though indirect, is present and sufficiently strong. Of course, public bodies cannot appropriate public funds indiscriminately, or for the benefit of private parties, where there is not a reasonable and adequate public interest. An indirect public benefit may be adequate to support the public participation in a project which imposes no obligation on the public, and the qualification of the direct beneficiary complies with the principles of due process and equal protection.164
More recently, in another case and using modern language recognizable from land use caselaw, the Court said:
Dr. Strand next argues that the findings of fact contained in the circuit court’s final judgment are not supported by competent, substantial evidence in the record. Specifically, Dr. Strand challenges the circuit court’s findings that the District project is necessary and serves a public purpose; that there is a sufficient nexus between the property within the District and the benefits of the project to be financed by the bonds; and that the public improvements to be financed by the revenue bonds are necessary. Dr. Strand’s argument is without merit.
In this case, the County offered into evidence the Ordinance and the Resolution, and presented testimony concerning the purpose of the project and the tax increment financing mechanism. In its final judgment, the circuit court relied primarily on the legislative findings contained in the Ordinance and the Resolution. This Court has held that “legislative declarations of public purpose are presumed valid and should be considered correct unless patently erroneous.”
164. Id. (internal citations omitted). 516 Stetson Law Review [Vol. 46
The findings in the Ordinance and the Resolution must be accorded great deference by the trial court, and Dr. Strand has not demonstrated the findings to be clearly erroneous.165
A word of caution for practitioners: in building the record, avoid taking shortcuts or being conclusory with the testimony and evidence presented to the governing body. Even though it may frustrate and try the patience of commissioners and staff, and even though it will run the meeting longer than anyone desires with seemingly repetitious testimony, do it. A great “public purpose” record will contain a number of closely related, but independent elements, each supported by its own underlying facts and logic:
A concise statement of the problem; How the problem is affecting the public; Identification of the factors causing or contributing to the problem; Which factors the proposal will influence, including the ones that will not or cannot be affected; How the proposal will operate to influence the factors that will be affected; that is, the mechanics of the nexus between action and purpose; What the alternatives are; what has been tried that didn’t work or why this proposal is being suggested over alternatives; How the success of the proposed project will be measured and when; How the public will be protected if the project fails and rewarded if it succeeds; and What the city’s risks and upsides are, what the private party’s risks and upside are, and a comparison of the two.
The idea is to make it difficult or impossible for a court to later “substitute its judgment”166 for that of the legislative body, because the record that the body built establishes beyond a doubt
165. Strand v. Escambia Cnty., 992 So. 2d 150, 155–56 (Fla. 2008). 166. Sebring Airport Auth. v. McIntyre, 783 So. 2d 238, 245 (Fla. 2001); accord Miccosukee Tribe of Indians of Fla. v. S. Fla. Water Mgmt. Dist., 48 So. 3d 811, 818 (Fla. 2010). 2017] The Evolution of the "Public Purpose" Fulcrum 517 that the critical issues are “fairly debatable”;167 rule that the legislative findings were “arbitrary and, therefore, [not] entitled to a presumption of correctness by the trial court”;168 or rule that the legislative findings were “patently erroneous.”169 Often, in struggling through the nexus between the proposal and the problem, both are better defined and the public purpose more clearly stated. Note that the logic of this approach assumes that the proposal always addresses a negative or a need. What about a proposal that is entirely positive and cumulative, that seizes a sterling opportunity to just make things better which are not all that bad in the first place? In that situation, the practitioner should be wary. This is a warning bell that a court could find that the government is unlawfully encroaching upon the private sector:
The constitutional prohibition against pledging public credit to private enterprise, article IX, section 10, Florida Constitution (1885) (now contained in article VII, section 10), was designed “to restrict the activities and functions of the State, county and municipality to that of government and forbid their engaging directly or indirectly in commercial enterprises for profit.” This prohibition is closely related to revenue bonds and to what constitutes a proper public purpose.170
Is it a public purpose for a city to finance the equipment needed to build a better mousetrap when there is a manufacturer
167. City of Miami Beach v. Hogan, 63 So. 2d 493, 494 (Fla. 1953) (addressing a zoning decision). 168. City of Winter Springs v. State, 776 So. 2d 255, 258 (Fla. 2001) (regarding special assessment bonds). 169. Panama City Beach Cmty. Redevelopment Agency v. State, 831 So. 2d 662, 665 (Fla. 2002); Boschen v. City of Clearwater, 777 So. 2d 958, 966 (Fla. 2001). Generally, “legislative declarations of public purpose are presumed valid and should be considered correct unless patently erroneous.” Moreover, the wisdom or desirability of a bond issue is not a matter for our consideration. Indeed, we have recognized that so long as the Legislature does not exceed its constitutional authority, our review of legislative declarations is limited. Id. (internal citations omitted). 170. State v. City of Panama City Beach, 529 So. 2d 250, 253 (Fla. 1988). But the next sentence in the quote above admits, “As with other aspects of bond law, the definition of public purpose has undergone changes.” Id. And the Court validated the city’s purpose— temporarily. Id.; see also N. Palm Beach Cnty. Water Control Dist. v. State, 604 So. 2d 440, 446–47 (Fla. 1992) (Shaw, C.J., dissenting) (emphasizing the Constitution’s safeguard against the State’s abuse of its power of eminent domain). 518 Stetson Law Review [Vol. 46 in the city already building mousetraps that work well enough? Probably not. But what if that mousetrap business is failing because its traditionally designed traps cannot compete with modern traps and hundreds of jobs are at risk? Perhaps. But even then, how is saving that private business, those private jobs, a legitimate public purpose or, more specifically, a “municipal purpose”? How does it relate to providing services to city residents? Perhaps it will preserve the tax base and general revenue for fire and police. Perhaps it will preserve the customer base for city utilities. Whether the city’s mousetrap debt will be validated, or survive a citizen challenge, will depend almost entirely upon the credibility and detail in the record of the city proceedings approving the developer agreements (the partnership) and authorizing the debt, a record made long before any suit is filed. Evidence developed or publicly offered after the fact is not as credible as concurrent legislative findings.171 In addition, tedious and painful record building presents the opportunity to refine the project, the purpose, and the evidence. In sum, if the record of the public purpose of a project that will leverage private capital with public assets is not stated to “serve a truly public purpose, i.e., it must bestow a benefit on society exceeding that which is normally attendant to any successful business venture,”172 restate it. If it cannot be restated or feels like private financing, a local government should seriously consider walking away.
B. Validation
The expedited judicial process to validate publicly traded bonds in order to enhance their credit worthiness is available for any form of debt173 and only has three justiciable issues: “(1)
171. See, e.g., Strand v. Escambia Cnty., 992 So. 2d 150, 155–56 (Fla. 2008) (stating that legislative findings are presumed correct and relied upon heavily in holdings). 172. Palm Beach Cnty., 604 So. 2d at 446 (Shaw, C.J., dissenting). 173. FLA.STAT. § 75.02 (2016). Any county, municipality, taxing district or other political district or subdivision of this state . . . may determine its authority to incur bonded debt or issue certificates of debt and the legality of all proceedings in connection therewith . . . [by filing a complaint] in the circuit court . . . against the state and the taxpayers, property owners and citizens . . . [and] nonresidents owning property or subject to taxation therein. Id. 2017] The Evolution of the "Public Purpose" Fulcrum 519 whether the public body has the authority to issue bonds; (2) whether the purpose of the obligation is legal; and (3) whether the bond issuance complies with the requirements of the law.”174 Obviously the second justiciable issue creates the opportunity to determine, with judicial finality, whether a constitutionally allowed public purpose exists.175 The advantages of validation are certainty and speed. The question of whether the use of the debt will serve a public purpose, or a predominate public purpose with only an incidental private benefit (all potentially slippery, mixed questions of law and fact), are immediately resolved by the local trial court176 with appeal lying directly with the Supreme Court.177 Absent an appeal to the Court, the process may be completed in as quickly as three months or so, including expiration of the appeal period. Once final, the judgment is “conclusive” to all parties—effectively to the world.178 Making the question of public purpose a res judicata before the covenants of either the city or the private parties “go hard” reduces risk, makes private investors and operators more comfortable, and makes the project less expensive in the long run. If there is a need for public debt, or even just an opportunity to create public debt, then in most deals, and especially in long term deals, it is probably worth considering the relatively minor expense and delay of validation. These two aces go hand-in-hand. Validation is the vehicle to bring deferential review into expedited play to advance a project at the precise time selected by the local government.
174. City of Winter Springs v. State, 776 So. 2d 255, 257 (Fla. 2001). 175. State v. Miami Beach Redevelopment Agency, 392 So. 2d 875, 885–86 (Fla. 1980). We note that this challenge to the legality of the project to be financed by the proposed bonds is proper in these proceedings because “validation proceedings involve a determination not only of the authority of an agency to issue bonds or revenue certificates, but also whether the agency may lawfully expend the proceeds for the contemplated purpose.” Id. (quoting State v. Suwannee Cnty. Dev. Auth., 122 So. 2d 190, 193 (Fla. 1960)). 176. FLA.STAT. § 75.07 (2016) (“At the hearing the court shall determine all questions of law and fact and make such orders as will enable it to properly try and determine the action and render a final judgment with the least possible delay.”). 177. Id. § 75.08. 178. Id. § 75.09. 520 Stetson Law Review [Vol. 46
VI. PUBLIC-PRIVATE PARTNERSHIPS
Legally, public-private partnerships are nothing new.179 In Florida we have been treated to a new statute,180 presumably to create a standard appearance more readily accepted in the financial markets. There is no consistently applicable definition of a public- private partnership. That is a very good thing, especially in a state such as Florida where local governments have been vested with broad, constitutional home-rule powers of self- government.181 Public-private partnerships have been around a long time and mold themselves to fit infinitely variable needs and circumstances. They are not true partnerships in the common law or modern statutory sense. By statute today, a true partnership is “the association of two or more persons to carry on as coowners [of] a business for profit.”182 “A partnership is an entity distinct from its partners.”183 A public-private partnership is not, and cannot be either of those things. The city cannot be a “joint owner with” a private party.184 Though undefined, all public-private partnerships do have two things in common:185
The public partner seeks to gain the benefit of private capital (and design or management expertise) by leveraging
179. Cowdery, supra note 17, at 38. There is a long history of private sector involvement in providing water and wastewater utility service in this country. .. . Privatization, also referred to as “public-private partnership,” may be defined as an arrangement under which private firms become involved in financing, designing, constructing, owning, or operating public facilities or services. Id. 180. FLA.STAT. § 287.057. 181. See discussion at supra notes 55–59 (summarizing Florida home rule). 182. FLA.STAT. § 620.8202(1). 183. Id. § 620.8201. 184. FLA.CONST. art. VII, § 10. 185. See generally Alexandru V. Roman, A Guide to Public-Private Partnerships (PPPs): What Public Procurement Specialists Need to Know, NIGP, at 1–5 (2015), available at https://www.nigp.org/docs/default-source/New-Site/research-reports/guidetopublic- privatepartnerships(ppps)-whatpublicprocurementspecialistsneednowfinal.pdf?sfvrsn=4 (providing a general overview of the various types of public-private partnerships). 2017] The Evolution of the "Public Purpose" Fulcrum 521 private capital with limited public assets or publicly controlled opportunities; and The private partner seeks an investment opportunity with a profit motive in mind.
They typically have a variety of other commonalities as well:
Both sides promise to do something of benefit to the other. Although the public and private partners may not co-own a single asset, there are frequently elements that are functionally equivalent to traditional, private business partnerships:186 o They may own separate assets side by side in concerted and symbiotic uses. o The private partner may lease assets from the public one, inevitably creating tension between the following: . The practical necessity that the private party hold an asset that it can use and control to meet its for- profit needs (and which typically must be credit- worthy), and . The legal necessity that the public party retain sufficient control to ensure that the public purpose is served over the life-cycle of its investment. o The partners may share income or profit from any identified revenue stream, frequently back-loading the public share as an incentive for the private party to invest or manage or both, creating so-called income- partners. o And there are the usual suspects for any business arrangement: . Allocation of risk; . Performance requirements, benchmarks, and phasing; and . Remedies and exit strategies.
186. See generally Public Private Partnerships: Issues and Considerations,PRAC.LAW COMPANY, available at https://www.google.com/url?sa=t&rct=j&q= &esrc=s&source=web&cd=1&cad=rja&uact=8&ved=0ahUKEwia2LzIm4jRAhVTziYKHdC 3AEEQFgghMAA&url=http%3A%2F%2Fapps.americanbar.org%2Fwebupload%2Fcommu pload%2FCL113000%2Fsitesofinterest_files%2FPublicPrivatePartnershipsIssuesandCons iderations.pdf&usg=AFQjCNF50VCdhXmS2RPvwFm__4cnJF7LJA&sig2=hvm7SWkmcYg qXmjmdQzM6Q&bvm=bv.142059868,d.eWE (last visited Mar. 30, 2017) (discussing various public-private partnership structures and considerations). 522 Stetson Law Review [Vol. 46
There are two functional types of public-private partnerships:187
Primarily for economic development or re-development, frequently in concert with a Community Redevelopment Agency and a Redevelopment Plan (Chapter 163, Part III). Promising to re-invest future tax increment as an incentive for private investment in a slum or blighted area is the soul of re- development (especially now that the ability to assemble properties through eminent domain for private development is gone). Primarily to acquire or facilitate the creation of infrastructure or the acquisition of a service, frequently of a type historically developed and owned or provided by the public sector alone. “Municipalities began chartering privately owned water companies before the signing of the Declaration of Independence.”188 Roads189 and most recently all sorts of “social infrastructure” such as schools and lighted parking lots have been the object of these partnerships.
In some fashion or another, by some name or another, cities and counties have been entering public-private partnerships ever since the first debate over whether a public project involving a private party served a sufficient public purpose. As discussed in an earlier Part of this Article, before the constitutional amendment of 1930 required a referendum to issue local government debt, there was no serious limit upon public-private deals and local governments had a “field day.”190 After the 1930 amendment, local governments turned to non-recourse revenue bonds in order to continue to support private projects which, over time, led to the “mere public purpose” and “predominate public purpose/incidental private benefit” tests we have today. The development over the past fifty years of home-rule power for cities and counties has simplified the creation of public-private partnerships by eliminating the need for an express authorization of the type of project for which the local
187. See Roman, supra note 185, at 3–4 (describing various types of public-private partnerships). 188. Cowdery, supra note 17, at 38. 189. FLA. STAT. § 334.30 (2016). 190. State v. City of Panama City Beach, 529 So. 2d 250, 252 (Fla. 1988). 2017] The Evolution of the "Public Purpose" Fulcrum 523 government seeks private capital so long as a sufficient public purpose191 is served, even to the extent of authorizing, for a brief moment, a city to become an investment banker.192 Public-private partnerships have not been widely used in Florida or the United States where tax exempt financing is prevalent.193 However, not only do they provide opportunities for cash-poor governments to acquire infrastructure, but also, they can transfer certain risks that the private sector is more adept at managing, such as cost overruns and timing.194 As of the spring of 2016, thirty-three states had enacted P3 legislation to remove uncertainty regarding the legality of these procurement structures.195 In 2013, the Florida legislature adopted a broad enabling statute authorizing cities, counties, and special districts to enter public-private partnerships and specifying detailed procedures and requirements to do so.196 Several other states have enacted similar legislation, driven by national and even international capital that is looking for a secure home and seeks legal certainty and consistency from state to state.197 It is not an accident that the enabling legislation specifies how a local government may deal with an unsolicited proposal.198
191. Or, for a city, a “municipal purpose.” FLA.STAT. § 166.021 (2016). 192. State v. City of Orlando, 576 So. 2d 1315, 1317 (Fla. 1991) (receding from City of Panama City Beach, 529 So. 2d 250). 193. Patrick O’Sullivan, Enabling Public-Private Partnerships in New York, N.Y. L.J. (May 5, 2016), available at http://www.newyorklawjournal.com/id=1202756782781/ Enabling-PublicPrivate-Partnerships-in-New-York?mcode=0&curindex=0&curpage=ALL. 194. Id. 195. Id. 196. See generally FLA.STAT. § 287.05712 (2015), renumbered and amended by Ch. 2016-153 and Ch. 2016-254, Fla. Laws (2016), now § 255.065 (2016). 197. See Public-Private Partnership (P3) Model State Legislation,BIPARTISAN POLICY CENTER 3 (Dec. 2015), http://bipartisanpolicy.org/wp-content/uploads/2015/12/BPC-P3- Enabling-Model-Legislation.pdf (“The model legislation is a template that should be customized to suit each state’s particular circumstances and needs. Yet providing some degree of standardization and promotion of best practices may encourage greater private infrastructure investment and establish clear rules of the road.”). Thirty-three states have passed P3 enabling legislation to remove uncertainty regarding the legality of the procurement structure. O’Sullivan, supra note 193. Citations courtesy of David Cruz, Florida League of Cities, Tallahassee, Florida, who was involved in the passage of the Florida legislation. 198. “Since structuring such contractual arrangements [P3s] requires significant up- front resources, prospective private sector partners look to expend resources in jurisdictions where they know that the public sector does not need to seek additional legislative approval for a contract or procurement, which a statute typically addresses.” O’Sullivan, supra note 193. 524 Stetson Law Review [Vol. 46
State agencies and local special districts in Florida do not have home-rule powers, so general or special legislative authorization to enter public-private deals benefits them. For example, decades ago the Florida Department of Transportation was authorized by statute to seek acquisition of transportation facilities through public-private contracts.199 Ironically, however, the new statute could limit the home- rule flexibility of Florida cities and counties if developers, bond buyers, and banks become so accustomed to the expressly authorized procedures that they require the statute to be followed in every detail. The new statute certainly will serve as a guide or checklist for home-rule deals, but cities and counties in Florida should be wary of relying upon it exclusively. To do so could begin to limit their flexibility. Moreover, to avoid having a strenuously negotiated deal invalidated by a court, the Author recommends that if a local government chooses to follow the statute for convenience, its record should reflect that the government is only using the statute as a guide and that every action it takes leading to and including the approval of the contracts creating the partnership were taken pursuant to its home-rule powers.200 This may require taking the extra step of adopting an ordinance which parallels but extends state law to authorize the creation or use of public assets to leverage private capital before the government wades into putting together the actual partnership deal.201 To complicate matters further, the 2013 statute was not a model of clarity. It was a hybrid of laws from Virginia and other states.202 Fortunately, baked into it was a call for an immediate
199. FLA.STAT. § 334.30 (2016); see Unsolicited Proposal Process,FLA.DEP’T TRANSP., available at http://www.fdot.gov/comptroller/PFO/P3_Unsolicited_Proposal_Process.shtm (last visited Mar. 30, 2017) (explaining the Florida Department of Transportation’s authority to seek acquisition of transportation facilities through public-private contracts). 200. See Strand v. Escambia Cnty., 992 So. 2d 150, 159 (Fla. 2008) (validating a county’s creation by ordinance of a home-rule tax increment financing program similar to Chapter 163, Part III, Florida Statutes (Community Redevelopment) but used to four-lane a road rather than address slum or blight). 201. Id. (unique, home-rule tax increment financing program); City of Boca Raton v. State, 595 So. 2d 25, 27 (Fla. 1992), modified sub nom. Collier Cnty. v. State, 733 So. 2d 1012 (Fla. 1999), holding modified by Sarasota Cnty. v. Sarasota Church of Christ, Inc., 667 So. 2d 180 (Fla. 1995) (unique, home-rule special assessment program). 202. See Elaine S. Povich, Cash-Strapped States Turn to Public-Private Partnerships, PEW CHARITABLE TRUSTS (Nov. 14, 2013), http://www.pewtrusts.org/en/research-and- analysis/blogs/stateline/2013/11/14/cashstrapped-states-turn-to-publicprivate- partnerships. 2017] The Evolution of the "Public Purpose" Fulcrum 525 task force review.203 This review was expertly done and published on July 1, 2014; many sections were approved and changes were suggested to others.204 The 2015 legislative session ended abruptly without these needed reforms being made. In 2016, two reform bills finally passed the legislature and the statute was amended, effective July 1, 2016.205 Of particular interest to cities and counties are two changes made by the 2016 amendments: (1) clarification that the statute is cumulative and does not limit a local government’s home-rule power, and (2) an exemption from the public records laws.206 In 2013, it would appear that the legislature intended the act to be cumulative and not mandatory, not to limit the home-rule power of cities and counties. But, as passed then, the legislation stumbled around to provide as follows:
Other states, including Florida, have used Virginia’s legislation as a model, according to Richard Norment, executive director of the National Council of Public-Private Partnerships. Florida expanded its P3 law this year to cover housing, water, and transportation projects, and to allow the use of P3s by other governmental entities, including counties, municipalities, school board and regional governments. Id.; Albert E. Dotson, Jr., P3 Legislation a Hot Topic at the Florida Logistics & Trade Conference,BILZIN SUMBERG’S NEW MIAMI BLOG (May 23, 2014), http://www.newmiamiblog.com/2014/05/23/2014-florida-logistics-trade-conference. Virginia, another state leader in P3s, in addition to passing P3 legislation in the 90s, established an Office of Transportation Public-Private Partnerships in 2011 to assist in creating an environment that encourages private investment and invites innovative solutions from the private sector. Florida has positioned itself similarly to Virginia by passing legislation to enable its government entities to get on the P3 path, establish P3 guidelines and signal to the private sector that Florida is “open for business.” .. . Florida is still fashioning its P3 laws and will have the benefit of learning from states like Virginia, enabling it to eventually have one of the best and most effective P3 laws in the country. Id. Citations courtesy of David Cruz, Florida League of Cities, Tallahassee, Florida, who was involved in the passage of the Florida legislation. 203. FLA.STAT. § 287.05712(3) (2013). 204. See Task Force Final Report, supra note 38 (establishing various guidelines and recommendations to House Bill 85). 205. 2016 Fla. Laws Ch. 2016-153, 2016-254 (2016). 206. 2016 Fla. Laws Ch. 2016-153; see generally FLA.STAT. ch. 119 (2016) (requiring government records to be open to the public). 526 Stetson Law Review [Vol. 46
CONSTRUCTION.
This section shall be liberally construed to effectuate the purposes of this section. This section shall be construed as cumulative and supplemental to any other authority or power vested in or exercised by the governing board of a county, district, or municipal hospital or health care system including those contained in acts of the Legislature establishing such public hospital boards or [section] 155.40. . . . 207
The Task Force in its final report recognized the problem and recommended a clean, strike-all amendment to this section.208 The legislation proposed in 2015 provided a similar strike-all amendment and did not appear to be controversial but died in the abrupt ending of the regular session.209 Effective July 1, 2016, the statute was amended in two regards of note here, and renumbered as Section 255.065, Florida Statutes.210 An exception to the public records law was made for unsolicited proposals received by a local government.211 In addition, the intent for the new, statutory authorizations to be cumulative and alternative to cities and counties’ home-rule powers was confirmed:
(14) Construction.—
(a) This section shall be liberally construed to effectuate the purposes of this section.
(b) This section shall be construed as cumulative and supplemental to any other authority or power vested in or exercised by the governing body of a county, municipality, special district, or municipal hospital or health care system including those contained in acts of the Legislature.
(c) This section does not affect any agreement or existing relationship with a supporting organization involving such governing body or system in effect as of January 1, 2013.
207. FLA.STAT. § 287.05712(15) (2013). 208. Task Force Final Report, supra note 38, at 20. 209. An Act Relating to Public-Private Partnerships, CS/HB 63 (2015) 27–28:682–707 (Fla. 2015). 210. 2016 Fla. Laws ch. 2016-154 (2016). 211. Id. (codified at § 255.065(15)(b)1: “An unsolicited proposal received by a responsible public entity is exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution until such time as the responsible public entity provides notice of an intended decision for a qualified project.”). 2017] The Evolution of the "Public Purpose" Fulcrum 527
(d) This section provides an alternative method and does not limit a county, municipality, special district, or other political subdivision of the state in the procurement or operation of a qualifying project pursuant to other statutory or constitutional authority.
(e) Except as otherwise provided in this section, this section does not amend existing laws by granting additional powers to, or further restricting, a local governmental entity from regulating and entering into cooperative arrangements with the private sector for the planning, construction, or operation of a facility.
(f) This section does not waive any requirement of [section] 287.055.212
VII. CONCLUSION
A public-private partnership may be used to leverage private capital and expertise in many circumstances, including economic development projects, community redevelopment projects, the acquisition of publicly needed assets, the privatization of governmental services, or any of the limitless numbers and types of other projects, however labeled. And regardless of whether the partnership is effected through a city’s home-rule power; the 2013 Florida P3 statute; a specific grant of community redevelopment power under Chapter 163, Part III; or through any of the myriad of economic incentive programs scattered throughout the statutes and regulations,213 in the end a challenge by an economic competitor or a concerned citizen will inevitably question whether the deal serves a sufficient public purpose or disproportionally benefits the private partner and is therefore unconstitutional. The public purpose should be defined early and often! The path to an economically successful and constitutional public-private project is never linear. It evolves.
212. FLA.STAT. § 255.065(14) (2016). Section 287.055 is the “Consultant’s Competitive Negotiation Act” or, as it is known in the trade, the CCNA. Id. § 287.055. Regardless of whether a public-private project is developed under the new enabling legislation or home- rule powers, there will always be tension between the architects and engineers who rely upon the CCNA for a shot at business and the private party in the deal who will prefer to privately select its own familiar consultants. 213. See supra note 157 (listing incentive programs). 528 Stetson Law Review [Vol. 46
VIII. A FULMINATING EPILOGUE AND POSTSCRIPT
A dissenting Justice in 1992 wrote that a “truly public purpose”214 sufficient to support employing public assets to leverage private capital “must bestow a benefit on society exceeding that which is normally attendant to any successful business venture.”215 His point, and one that was embraced by the entire Court prior to the 1968 Constitution, is that regardless of the good to come in the “passing moment,”216 government participation in business conducted in the private sector “will lead inevitably to the ultimate destruction of the private enterprise system.”217 If you subscribe to the philosophy that the best role of government in the economy of a society is to set the rules and serve as referee but not play the game, then you are likely to agree with those sentiments. But that view of public purpose was abandoned decades ago. Modern projects are approved which, boiled down, truly provide only the immediate benefits attendant to any successful business venture. Yet we know that the Florida Constitution still prohibits the government from getting into business with private parties for a profit. So what do these modern projects have in common that makes them an exception? Perhaps it is simply that local governments have found a way, without burdening the future with debt or increased taxes, to jump-start a beneficial private project that is otherwise not financially feasible. The Court may be willing to accept the argument that using a public asset as a catalyst to ignite private capital to achieve merely the benefits “normally attendant to any successful business venture”218 does indeed serve a constitutionally sufficient public purpose if: (1) the public asset is not placed at risk, or conversely, only private capital and project income are risked; (2) the coercive power to impose a tax is not used; and (3)
214. N. Palm Beach Cnty. Water Control Dist. v. State, 604 So. 2d 440, 446 (Fla. 1992) (Shaw, J., dissenting). 215. Id. 216. State v. Town of N. Miami, 59 So. 2d 779, 785 (Fla. 1952) (quoted in State v. Clay Cnty. Dev. Auth., 140 So. 2d 576, 581 (Fla. 1962)). 217. Id. 218. N. Palm Beach Cnty., 604 So. 2d at 446 (Shaw, J., dissenting). 2017] The Evolution of the "Public Purpose" Fulcrum 529 the normally attendant social benefits are at least “of some substantial benefit to the public.”219 Perhaps this is a subliminal or coincidental trade-off to compensate the private sector for the regulatory burden that often makes a worthy, private project not financially feasible. For example, dedication of tax increment (if any is measured in a given year) to a private redevelopment project in silent exchange for the project being required to abate asbestos in the blighted structures, or public stormwater modeling and infrastructure construction in silent exchange for new, private construction being required to meet stormwater and flood plain management standards. In many governmental regulations, society seeks to achieve goals that have the side effect of making development less profitable for private parties. Private capital will follow only the credible promise of a return on investment greater than the risk it perceives. Perhaps society is sensing or even beginning to recognize that there may be unseen, long term, ripple-effect costs of well-intentioned regulations and that these costs are frustrating needed private development by reducing returns below the feasibility point. In public-private partnerships of all ilks, Florida now allows private parties to use public assets to reduce development costs in order to make a private project financially feasible even though it will yield only the benefits normally attendant to any business venture. The Author has observed that the threshold of public purpose for many needed and worthwhile projects in Florida has been lowered in practice, and in the caselaw, to permit public subsidies that increase investors’ returns, lessen their risks, or enhance a project’s credibility—or all three. Is this good or bad? That answer depends upon what we citizens agree is a sufficient public purpose. But that, in turn, would require us to agree upon the proper role of our state and local governments. Yet, the fact remains that local governments are stretched to their financial and operational limits by promising more and more services and benefits, while at the same time (along with the state and federal governments) increasing regulatory burdens that lessen the return on the very private investment needed to increase local ad
219. Jackson-Shaw Co. v. Jacksonville Aviation Auth., 8 So. 3d 1076, 1095 (Fla. 2008) (quoting State v. Miami Beach Redevelopment Agency, 392 So. 2d 875, 866 (Fla. 1980)). 530 Stetson Law Review [Vol. 46 valorem and excise tax bases. And they are indeed acquiring private investment in their communities by subsidizing projects with public money for a “public purpose” that may mean little more than merely overcoming an ordinary, private project’s financial feasibility gap. If nothing else is taken from this Article, it should be remembered that it was not always so.
Postscript
This Article was written in the spring of 2016, before the November presidential election. Another, complementary approach to encourage private development and its ripple-effect benefits would be to reduce the financial feasibility gap by lowering the regulatory burdens upon it. After casting his electoral vote for Donald Trump, Republican Party of Florida Chairman Blaise Ingoglia is reported to have stated: “So, while I do not agree with corporate welfare, I can understand [Trump’s] reasoning for [offering incentives for Carrier air-conditioning to stay in Indiana].”220 Mr. Ingoglia is reported to have gone further to say:
Government is very good at building up all of these barriers of entry when it comes to business. But we build them so high that we have to subsidize them in order to help companies get along. . . . What I think a Donald Trump admiration is going to do, I think what we’re going to see, is a flattening and making it more fair of a business environment so everyone can succeed.221
Admittedly these comments were made in the context of the international trade and globalization debate, but they make the point that lowering barriers to private investment will complement and reduce the subsidies needed to overcome those barriers. In fact, the public purpose found insufficient by the Florida Supreme Court in State v. Jacksonville Port Authority (the proposed Lockheed Aircraft shipyard case decided just prior to the 1968 amendment of the state constitution that overturned
220. Jim Turner, House Speaker, Scott Spar over Recruitment, Marketing,PANAMA CITY NEWS HERALD, A11 (Dec. 24, 2016), available at http://www.newsherald.com/news/ 20161223/house-speaker-scott-spar-over-recruitment-marketing. 221. Id. 2017] The Evolution of the "Public Purpose" Fulcrum 531 it) was to bring jobs to Florida that were being drawn to other states that were offering subsidies. Local governments in Florida are authorized to carefully, but broadly, invest public assets in private projects upon a well- documented showing that a public purpose, in the modern sense of the phrase, will be served. Only sixty-five years ago, the Court was confident that “[e]xperience has shown that such encroachments will lead inevitably to the ultimate destruction of the private enterprise system.”222 It will be interesting to see whether the experiment of placing public and private economic interests into increasingly sophisticated, artificial “partnerships” over the past fifty years is a pendulum that has reached its progressive amplitude and will begin a return swing, or continue to progress.
222. State v. Town of N. Miami, 59 So. 2d 779, 785 (Fla. 1952).
WITH THE BEST OF INTENTIONS: FIRST AMENDMENT PITFALLS FOR GOVERNMENT REGULATION OF SIGNAGE AND NOISE
Karen Zagrodny Consalo
I. INTRODUCTION
A basic tenant of American jurisprudence is the protection of speech under the First, Fifth, and Fourteenth Amendments to the United States Constitution, as well as sections 4 and 9 of Article I of the Florida Constitution.1 While the extent of free speech is not limitless, this Article demonstrates that government attempts to regulate speech through regulation of signage and noise has been significantly curtailed by both federal and state courts in recent years. Further, a constitutional challenge to a government regulation will often be reviewed de novo as a pure question of law
© 2017, Karen Zagrodny Consalo. All rights reserved. Lecturer in the Department of Legal Studies, University of Central Florida. J.D., University of Florida, 2000; B.A., Rollins College, 1997. The Author is certified by the Florida Bar as an expert in City, County & Local Government Law and maintains a private law practice specializing in government matters. 1. The First Amendment of the U.S. Constitution states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” U.S. CONST. amend. I. Section 4 of the Declaration of Rights of the Florida Constitution, entitled “Freedom of Speech and Press,” states: Every person may speak, write and publish sentiments on all subjects but shall be responsible for the abuse of that right. No law shall be passed to restrain or abridge the liberty of speech or of the press. In all criminal prosecutions and civil actions for defamation the truth may be given in evidence. If the matter charged as defamatory is true and was published with good motives, the party shall be acquitted or exonerated.
FLA. CONST. art. I, § 4. Article I, section 9 of the Florida Constitution, entitled “Due Process” further ensures each person due process of law prior to deprivation of their liberty. FLA. CONST. art. I, § 9. See also Montgomery v. State, 69 So. 3d 1023, 1025 (Fla. 5th Dist. Ct. App. 2011) (recognizing music as a protected form of expression under the First Amendment); Easy Way of Lee Cnty. v. Lee Cnty., 674 So. 2d 863, 864 (Fla. 2d Dist. Ct. App. 1996) (recognizing free speech protection under the United States Constitution as well as the Florida Constitution). 534 Stetson Law Review [Vol. 46 and is therefore subject to a stricter standard of review than general regulations.2 This dictates that governments cannot rely upon the judicial deference typically afforded to local governments exercising their police powers.3 Therefore, many sign and noise ordinances will need to be significantly amended to ensure constitutional compliance.4 In addition to explaining the current climate of First Amendment regulation with regard to signage and noise, this Article provides concrete advice and best drafting guidelines for governments to utilize when drafting or revising signage and noise regulations.
II. GOVERNMENT SIGN REGULATION
One common area of government regulation which holds numerous potential constitutional pitfalls is signage. As the seventies ballad decries: “Sign, sign, everywhere a sign!”5 Today, it is difficult to avoid signs in any place of human habitation.6 From
2. See State v. Catalano, 104 So. 3d 1069, 1075 (Fla. 2012) (noting that there is also a strong presumption of validity in favor of the government regulation shadowing such review); see also State v. J.P., 907 So. 2d 1101, 1107 (Fla. 2004) (applying de novo standard of review). It is interesting to note that the U.S. Supreme Court has expressed hesitation to apply the de novo standard of review to consideration of congressional intent in establishing speech regulations that impute First Amendment concerns. The Court explained: This obligation to exercise independent judgment when First Amendment rights are implicated is not a license to reweigh the evidence de novo, or to replace Congress’ factual predictions with our own. Rather, it is to assure that, in formulating its judgments, Congress has drawn reasonable inferences based on substantial evidence. Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 666 (1994). 3. The majority of government regulations are subject to deferential judicial standards such as the “fairly debatable” standard or certiorari review. In Martin County v. Yusem, the Florida Supreme Court noted, “The fairly debatable standard of review is a highly deferential standard requiring approval of a planning action if reasonable persons could differ as to its propriety.” 690 So. 2d 1288, 1295 (Fla. 1997) (citing B & H Travel Corp. v. State Dep’t of Cmty. Affs., 602 So. 2d 1362 (Fla. 1st Dist. Ct. App. 1992)); see also Bd. of Cnty. Comm’rs of Brevard v. Snyder, 627 So. 2d 469, 474 (Fla. 1993) (using the fairly debatable standard of review). 4. See, e.g., Lisa Harms Hartzler, Sign Regulation after Reed v. Town of Gilbert, Arizona: Greater Clarity or More Confusion?, ILLINOIS REALTORS, http://www.illinoisrealtor .org/node/3961 (last visited Apr. 13, 2017) (predicting Illinois’ redrafting of sign ordinances in the wake of the Reed decision). 5. FIVE MAN ELECTRICAL BAND, Signs, on GOOD-BYES AND BUTTERFLIES (Lionel Records 1970). 6. There is such a proliferation of signage across America that the U.S. Supreme Court agreed it could be considered “visual assault” on citizens. Members of City Council of City of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 807 (1984); see also Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 561 (1981) (describing billboards as “visual pollution”). 2017] First Amendment Pitfalls 535 fifty-foot steel billboards along highways, to massive LED moving displays on sports arenas, to inflatable balloons and streamers waving outside car dealerships, to prolific political yard signs, and government-issued directional signage, signs for commercial, political, ideological, and government purposes are everywhere. To address this myriad of different types of signage, governments (primarily cities and counties) have developed highly complex hierarchies and categories of regulation based upon the size, design, location, and duration of sign usage within their jurisdiction.7 Yet, this Article highlights the irony that high levels of specificity in categorization and rules actually render sign regulations less constitutionally sound.8 Categorization of signs based upon the type of use or the type of user, accompanied by regulation based upon such categories, has recently led federal and state courts to find such ordinances are content-based and therefore subject to the exacting strict scrutiny standard.9 Strict scrutiny requires proof of a compelling government purpose in enacting the regulation and narrowly tailoring that regulation to meet such purpose.10 Few sign regulations have survived such strict scrutiny review.11 In 2005, the Eleventh Circuit Court of Appeals issued a ruling on sign regulation in the case of Solantic, LLC v. City of Neptune Beach,12 which, at that time, shocked governments in Florida, Georgia, and Alabama by greatly restricting their ability to differentiate between sign restrictions based upon the nature of
7. See infra Part II(A) (discussing a Gilbert, Arizona regulation limiting sign usage). 8. See, e.g., Reed v. Town of Gilbert, Ariz., 135 S. Ct. 2218, 2231 (2015) (holding a regulation with twenty-three signage categories failed to pass constitutional muster); Solantic, LLC v. City of Neptune Beach, 410 F.3d 1250, 1264 (11th Cir. 2005) (broadening the definition of content-based regulation). 9. See Reed, 135 S. Ct. at 2231 (applying strict scrutiny standard for content-based restrictions); Solantic, LLC, 410 F.3d at 1264 (also applying strict scrutiny for content-based restrictions); see generally State v. J.P., 907 So. 2d 1101, 1107 (Fla. 2004) (applying strict scrutiny to a Tampa curfew ordinance). 10. See Reed, 135 S. Ct. at 2231 (defining the strict scrutiny standard). 11. Strict scrutiny review is the highest scrutiny upon government regulation and often leads courts to rule a government regulation is unconstitutional. See Republican Party of Minn. v. White, 416 F.3d 738, 749 (8th Cir. 2005) (reasoning strict scrutiny review is the highest scrutiny upon government regulation and often leads courts to rule a government regulation is unconstitutional). “Strict scrutiny is an exacting inquiry, such that ‘it is the rare case in which . . . a law survives strict scrutiny.’” Id. (quoting Burson v. Freeman, 504 U.S. 191, 211 (1992)). 12. 410 F.3d 1250 (11th Cir. 2005). 536 Stetson Law Review [Vol. 46 the sign user.13 Prior to Solantic, it had been accepted practice for governments to exempt governmental or public service signs from regulation and to apply less strenuous regulation to political, charitable, and religious signs.14 Yet, the Solantic court found any such distinction between the type of sign or type of sign user to be a content-based regulation.15 Based upon its finding that the regulation was a content-based regulation, the Eleventh Circuit applied strict scrutiny review to determine if such regulation passed constitutional muster.16 Applying the two prongs of strict scrutiny review, the court examined whether the ordinance had been enacted to meet a compelling government purpose and whether it was narrowly tailored to meet that interest17—the court found the sign regulation failed both prongs.18 The court asserted that the stated government interests, namely protection of aesthetics and traffic safety, have not been found to be compelling government interests.19 Further, even if community aesthetics and traffic safety were considered compelling interests, the court found the ordinance did little to achieve such interests and only addressed the aesthetics or traffic safety “at the highest order of abstraction,” providing no concrete link between the stated government purpose and the method of sign regulation.20 Consequently, the Neptune Beach sign regulation was invalidated.21 The Solantic ruling curtailed the then-common government practice of regulating government-issued signage, as well as the signage of favored users, such as political, religious, and charitable organizations, more leniently than other users’ signs.22 The pre- Solantic understanding of governments was that only regulations upon the words expressed on the sign would be considered a content-based regulation, and therefore subject to the exacting
13. Id. at 1274. 14. See Caren Burmeister, Sign Ruling of Interest Nationwide,FLORIDA TIME-UNION (June 11, 2005), http://jacksonville.com/tu-online/stories/061105/nes_18958272.shtml# .V8I7x2W7GFI (explaining that the Solantic decision was “contrary to prior precedent”). 15. Solantic, LLC, 410 F.3d at 1274. 16. Id. at 1267. 17. Id. at 1267–68. 18. Id. at 1268. 19. Id. at 1267. 20. Id. 21. Id. at 1268–69. 22. See, e.g., id. at 1256–57 (illustrating political, religious, and charitable organization exemptions provided in Neptune Beach regulations). 2017] First Amendment Pitfalls 537 strict scrutiny standard.23 The Solantic ruling required many governments within the Eleventh Circuit to significantly redraft, and in many situations loosen, their sign regulations.24 This ruling, however, was only a forbearer to the expansion of First Amendment sign protections, which would be issued by the U.S. Supreme Court ten years later.25
A. Reed v. Town of Gilbert
In 2015, the U.S. Supreme Court issued a ruling in Reed v. Town of Gilbert,26 which has had a dramatic and far-reaching effect on government sign regulations across the country.27 In an opinion delivered by Justice Thomas, the Court rebuked the Town of Gilbert for exceeding the constitutional parameters of government regulation of speech through its signage regulations.28 As the basic tenants of the Town’s sign regulation scheme was once shared by many state governments, this ruling had a dramatic and immediate impact upon the validity of sign ordinances across the country.29 The Town of Gilbert’s sign code was based upon the principle that no signs were allowed within the Town unless permitted by the Town.30 The code then established standards and requirements for obtaining such a permit, as well as restrictions upon the various types of signs.31 In total, the ordinance established twenty-three different categories of signs.32 Each category of sign was assigned
23. Id. at 1259. 24. Brandon L. Bowen, A New Challenge to Effective Sign Regulation,JENKINS & OLSON, P.C., http://www.ga-lawyers.pro/Sign-Ordinances/A-NEW-CHALLENGE-TO- EFFECTIVE-SIGN-REGULATION.shtml (last visited Apr. 13, 2017). 25. Reed v. Town of Gilbert, Ariz., 135 S. Ct. 2218 (2015). 26. Id. 27. Id.; see also David Cortman, An Important Blow for Free Speech,NAT’L REV. (June 23, 2015, 10:00 AM), http://www.nationalreview.com/article/420176/important-blow-free- speech-david-cortman (speculating that “[Reed’s] wide-ranging effects will result in less government meddling in speech and greater individual freedom for us all”). 28. Reed, 135 S. Ct. at 2224. 29. See, e.g., Adam Liptak, Court’s Free-Speech Expansion Has Far-Reaching Consequences, NY TIMES (Aug. 17, 2015), http://www.nytimes.com/2015/08/18/us/politics/ courts-free-speech-expansion-has-far-reaching-consequences.html?_r=0 (explaining the unintended effects that Reed could have on other regulatory schemes); Cortman, supra note 27 (arguing that Reed will have widespread effects, which will result in less governmental meddling in speech); Hartzler, supra note 4 (explaining the widespread effects Reed will have on real-estate brokers). 30. Reed, 135 S. Ct. at 2224. 31. Id. at 2224–25. 32. Id. at 2224. 538 Stetson Law Review [Vol. 46 a list of permitting parameters, including maximum sizes, allowable locations, and maximum time periods for display.33 In Reed, the Court focused on three specific sign categories established by the regulation: (1) Ideological Signs, meaning “sign[s] communicating a message or ideas for noncommercial purposes”; (2) Political Signs, defined as “any temporary sign designed to influence the outcome of an election called by a public body”; and (3) Temporary Directional Signs Relating to A Qualifying Event, which encompassed directional signage regarding the meeting of a non-profit organization.34 Of these three sign categories, the temporary directional signage was most strictly regulated, followed by political signage, and finally, the least regulated, ideological signs.35 The regulations placed upon Temporary Directional Signs Relating to A Qualifying Event restricted signs for meetings of religious, charitable, community service, and similar non-profit groups by: (1) limiting the size of such signs to six feet; (2) allowing only four signs per property; and (3) limiting display to no more than twelve hours before and one hour after the event.36 In comparison, Political Signs could be thirty-two feet in size and displayed for up to seventy-five consecutive days; Ideological Signs could be twenty feet in size and had no limitation on the number of consecutive days for display.37 A religious organization, Good News Community Church, challenged the sign regulations on First and Fourteenth Amendment grounds claiming that the regulations were an abridgment of its freedom of speech.38 Of particular concern to the Church was the restriction upon its ability to use temporary signage to notify members of the location of its weekly services (which were held at various locations).39 Both the U.S. District Court for the District of Arizona and the U.S. Ninth Circuit Court of Appeals ruled against the Church.40 Upon initial appeal of the District Court’s denial of the Church’s
33. Id. at 2224–25. 34. Id. 35. Id. 36. Id. at 2225. 37. Id. at 2224–25. 38. Id. at 2226. 39. See id. at 2225 (stating that this was a cost-effective and efficient way for the church to inform community members where the service would be held each week). 40. Id. at 2226. 2017] First Amendment Pitfalls 539 request for a preliminary injunction, the Ninth Circuit found the sign regulations to be content-neutral because the “cursory examination” necessary for an enforcement officer to determine a particular sign’s compliance with town regulations was “not akin to an officer synthesizing the expressive content of the sign.”41 Upon secondary appeal of the District Court’s grant of summary judgment in favor of the Town, the Ninth Circuit again found the regulations to be content-neutral because they were based upon objective factors rather than the substance of the sign.42 In support of its rulings, the Ninth Circuit explained that the Town’s rationale in adopting the regulations was not because the Town “disagreed with the message conveyed” or demonstrated any intent to discriminate between the content of various signs.43 Upon finding the regulations to be content-neutral, the Ninth Circuit did not apply strict scrutiny.44 Rather, the court applied a lower level of review to determine if the sign regulation: (1) was narrowly tailored, (2) served a significant government interest, and (3) was a valid time, place, and manner restriction.45 In application of this standard of review, the court held the sign ordinance to be valid.46 However, upon certiorari review of the denial of summary judgment, the U.S. Supreme Court reversed and remanded.47 Noting that the First Amendment, as applied to the states (and thereby municipal governments through the Fourteenth Amendment), prohibits government from “restrict[ing] expression because of its message, its ideas, its subject matter, or its content,” the Court found the Town’s sign code to be an unconstitutional content-based regulation on speech.48 In so ruling, the Court corrected the assertions made by the Town and by both lower courts that the sign code was content-neutral because it was not
41. Id. (citation omitted). In fact, the Ninth Circuit ridiculed the Church’s arguments as an “absurdity of construing the ‘officer must read it’ test as a bellwether of content.” Reed v. Town of Gilbert, 707 F.3d 1057, 1062–63 (9th Cir. 2013). 42. Reed, 135 S. Ct. at 2226. 43. Id. (quoting Reed, 707 F.3d at 1071). 44. See id. (explaining that the lower court applied a “lower level of scrutiny to the Sign Code”). 45. Reed, 707 F.3d at 1063. 46. See Reed, 135 S. Ct. at 2226 (describing how the Sign Code did not violate the First Amendment). 47. Id. at 2233. 48. Id. at 2226 (quoting Police Dep’t of Chi. v. Mosley, 408 U.S. 92, 95 (1972)). 540 Stetson Law Review [Vol. 46 enacted for the purpose of restricting a message with which the Town disagreed.49 Rather, the Court explained that both lower courts had “skip[ped] the crucial first step in the content-neutrality analysis: determining whether the law is content-neutral on its face.”50 The Court reminded lower courts that “[a] law that is content based on its face is subject to strict scrutiny regardless of the government’s benign motive, content-neutral justification, or lack of ‘animus toward the ideas contained’ in the regulated speech.”51 Therefore, neither government animus, improper censorial motive, nor content-based purpose is necessary for a regulation to be deemed content-based.52 Stated alternatively, there is no need to examine the government purpose in enacting a sign code, whether benign or malicious, if the law is content-based on its face.53 It is the operation, not the motive, of the law which imputes First Amendment concerns.54 In a similar vein, the Court summarily rejected the circuit court’s conclusion that the sign code could not be content-based because it did not differentiate regulations, nor did it censor content, based upon any particular viewpoints.55 Noting well- established law, the Court explained that a government regulation designed to restrict a specific viewpoint was a blatant and egregious form of content-based regulation—but not the only method by which a government might create a content-based regulation.56 Rather, a broad restriction upon discussion of an entire topic, like those imposed by the categories of sign code at issue, was a content-based regulation.57 As another example of such sign-category based regulation, the Court cited a hypothetical example of a regulation which allowed the use of sound trucks for some types of speech, but not for political speech.58 Even though such hypothetical regulation did not differentiate between
49. See id. at 2227–28 (explaining that the Sign Code is a content-based regulation on its face). 50. Id. at 2228. 51. Id. (quoting Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 429 (1993)). 52. Id. at 2228–29. 53. See id. (explaining that only content-neutral statutes need to be looked at for an improper government purpose). 54. Id. at 2229. 55. Id. at 2229–30. 56. Id. at 2230. 57. Id. 58. Id. 2017] First Amendment Pitfalls 541 different types of political views, it would still be a content-based regulation because it discriminated against the entire field of political speech while allowing other types of speech.59 The Court concluded that the Town’s strict restriction upon signage, which announced the time and place of certain types of events, but not upon other types of events nor other types of speech, was a content- based regulation.60 Upon finding that the sign code was content-based, the Court applied the strict scrutiny standard of review be applied to determine if the sign code was constitutional.61 The Court found that, even assuming in arguendo that the regulation furthered a compelling government interest, the methods of sign regulation used to accomplish this goal were “hopelessly underinclusive” and were therefore not sufficiently narrowly tailored to satisfy strict scrutiny.62 Focusing again on the regulations upon directional signage, the Court determined that directional signs had no greater adverse effect on aesthetics, nor on traffic than ideological or political signs.63 Finding that the Town failed to demonstrate how directional signs adversely affected aesthetics and traffic safety and that the Town allowed similar signs without the strict regulations paced upon directional signage, the Court held that the sign code was not narrowly tailored, and therefore failed strict scrutiny review.64 Apparently anticipating an outcry from governments across the country that this ruling would leave them with no avenue by
59. See id. (explaining that even banning sound trucks for all political speech would be a content-based regulation). 60. Id. at 2231. 61. Id.; see generally Ariz. Free Enter. Club’s Freedom Club PAC v. Bennett, 131 S. Ct. 2806, 2817 (2011) (stating, “‘[L]aws that burden political speech are’ accordingly ‘subject to strict scrutiny, which requires the Government to prove that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest’”) (quoting Citizens United v. Fed. Elec. Comm’n, 130 S. Ct. 876, 898 (2010)); see also N. Fla. Women’s Health & Counseling Servs., Inc. v. State, 866 So. 2d 612, 625 n.16 (Fla. 2003) (explaining what strict scrutiny review entails and when it is used). 62. Reed, 135 S. Ct. at 2231–32. Interestingly, the stated compelling purpose for the sign regulation was the same as that cited by the local government (and rejected by the Eleventh Circuit) in Solantic: aesthetics and traffic safety. However, the U.S. Supreme Court did not weigh in on the merits of these interests in Reed. As such, in Florida, Georgia, and Alabama, these interests are seemingly not compelling reasons for content-based sign restrictions. See Solantic, LLC, 410 F.3d at 1267–68 (explaining that caselaw does not recognize aesthetics and traffic safety as compelling government interests). 63. Reed, 135 S. Ct. at 2231–32. 64. Id. at 2232. 542 Stetson Law Review [Vol. 46 which to regulate the proliferation of signs in modern America, the Court reiterated that not all sign regulations would be found to be content-based and therefore subject to strict scrutiny.65 In opening a content-neutral door (albeit a small one) the Court cited various content-neutral methods by which governments could regulate signage, including non-message and non-use related regulations on “size, building materials, lighting, moving parts, and portability.”66 Such a content-neutral sign code would need to be drafted to apply the same regulations to all signs, whether commercial, political, governmental, or other.67 However, such sign regulations could likely vary by zoning district, such that all signs within a residential neighborhood would be limited in size, duration, lighting, etc., while signs in a commercial district may be allowed to be larger, have greater permanency, and extensive lighting.68 The Court also reiterated that even if the regulation was drafted in a content-based manner, it is not automatically constitutionally flawed.69 Rather, it must meet the strict scrutiny requirements of a compelling government purpose and have narrowly tailored means to achieve that purpose.70 Posing a specific example, the Court noted that unique standards for
65. See id. (explaining parts of the Sign Code that do not relate to a sign’s message would not be subject to strict scrutiny). 66. Id. 67. See id. at 2231 (noting one of the problems with the Sign Code was that it did not apply equally to ideological signs and directional signs). 68. Due to the recent nature of Reed v. Gilbert, many government sign regulation rewrites will necessarily be trial and error. However, as a starting point, drafting content- neutral regulations will likely require a basis in zoning districts rather than sign usage. To understand the community needs and pressures related to signage, the ordinance drafter should tour the different zoning districts to see what signs currently exist and identify potential pitfalls if certain signs are allowed or prohibited. For example, should a local government prohibit lighting on any sign in a residential district, the may create a problem of over-restrictiveness considering the common practice of lighting entrance signs at subdivisions, schools, churches, and libraries—all of which are found in residential districts. The other side of that coin may be a concern with overly lenient regulations in a commercial zone where permanent, lighted signs may be permitted at large dimensions. Where such signage is allowed, the drafters must keep in mind that political signs, bars signs, and adult entertainment signs in those zoning districts will also be allowed such permanency, lighting, and size. 69. See Reed, 135 S. Ct. at 2232 (giving the example of a narrowly tailored sign ordinance protecting the safety of citizens—i.e., warning signs—as having the potential to survive strict scrutiny). 70. The Court also reiterated the ongoing right of a government to forbid all signage on public property so long as the regulation is content neutral. Id. Presumably, this approach would not even require a ban per se since the local government would have a proprietary right as the land owner or land trustee to prohibit signs, other than its own, on the property. 2017] First Amendment Pitfalls 543 directional signage could pass constitutional muster if there is a clear showing of a compelling government purpose and narrowly tailored means to achieve that purpose.71 Even with this tepid encouragement, it is clear that in the current judicial climate, any attempt to apply unique sign standards to certain uses or users must include express and objective justifications and methodology to pass constitutional muster.72
B. Effect of Reed v. Gilbert on Government Sign Regulation and Best Drafting Practices
Despite the Supreme Court’s reassurances, there is no doubt that its ruling in Reed requires many governments to significantly amend their sign codes.73 While the ruling in Reed has clarified fluctuating and convoluted rules of sign regulation, it does so with a sweeping brush which expands the commonly understood extent of content-based regulation. Whereas regulation of signage based upon the category of the message (i.e., political, commercial, directional, etc.) was previously considered by many governments and courts to be a content-neutral, and therefore a more readily defensible, regulation, the U.S. Supreme Court has made it clear that such categories are in fact content-based regulations subject
71. Id. In such hypothetical regulation, the compelling government need for directional signage could be established by inclusion of statistics regarding the most dangerous vehicular areas within the jurisdiction and an explanation of how more extensive directional signage would reduce such traffic hazards. 72. See id. (noting that constitutional regulations are even-handed and solve legitimate government problems). Although the Town of Gilbert’s website indicates that its Land Development Code was revised on July 5, 2015 (shortly after the U.S. Supreme Court struck the Town’s sign code), as of June 28, 2016, the online link from the Town of Gilbert’s website to Article 4.4, Sign Regulations, still includes the content-based regulations. GILBERT,AZ., SIGN REGULATIONS art. 4.4 (Mar. 3, 2016), available at http://www.gilbertaz.gov/home/ showdocument?id=8475. Nor is any information on the Town’s current Sign Regulations available at the Town of Gilbert’s Code of Ordinances codified by Municode. GILBERT,AZ., CODIFIED ORDINANCES (Municode through Ordinance No. 2601, enacted Dec. 15, 2016), available at https://www.municode.com/library/az/gilbert/codes/code_of_ordinances. 73. For example, at the time of publication, the City of Miami, Florida has a codified sign code that incorporates numerous content-based types of sign categorizes including symbolic flags, construction signs, outdoor advertising, home occupation, real estate, and many others. The Miami code even excludes government signs and legal notices, and national flags from any regulation. MIAMI,FL., MUN.ZONING CODE art. 6 (Nov. 23, 2016). Similarly, the City of Austin, Texas has a sign code which provides extensive and specific regulations for advertising signage, yet exempts other types of signage such as governmental signs and memorial signs, from any regulation. AUSTIN,TX., MUN.CODE § 25- 10-151 (Feb. 7, 2017). In Boston, Massachusetts the sign code creates a multitude of category based regulations, such as signs for sale or rent, government signs, public notices, and advertising signs. BOSTON,MA., MUN.CODE art. 11 (Feb. 3, 2017). 544 Stetson Law Review [Vol. 46 to the much higher standard of strict scrutiny.74 This ruling requires governments to eliminate all portions of their codes that categorize by sign type or sign user and innovate alternative methods to control signage.75 The City of Atlanta, Georgia amended its sign code in November 2015, shortly after the Reed decision was released.76 The City’s sign code may serve as a model code, or at least as a foundation, for other governments seeking to achieve compliance with Reed, while still exerting control over signage. Atlanta’s extensive sign code regulates the size, lighting, materials, proliferation, and aspects of signage based primarily upon the type of sign and geographical locations, rather than the type of speech advanced by the sign.77 Regulating signage by zoning district allows Atlanta to exert influence over certain types of signs in a content-neutral manner. For example, billboards are permitted but only in certain industrial districts.78 By regulating signage based upon zoning district, the sign code can target the certain types of signage without basing the regulations upon the sign content. Incorporating further content-neutral regulation, Atlanta’s code includes detailed definitions of each type of sign that might be requested and includes definitions for animated signs, banners, beacons, billboards, canopy, flags, and marquees, among others.79
74. A pre-Reed scholarly analysis of government authority to regulate signage, in the context of First Amendment compliance, can be found in Daniel R. Mandelker, Sign Regulation and Free Speech: Spooking the Doppelganger, in TRENDS IN LAND USE LAW FROM A TO Z 67, 70–71 (Dean Patricia E. Salkin ed., 2001). 75. See Reed, 135 S. Ct. at 2231–32 (emphasizing the categorization of the signs and the distinction between the treatment the various categories when discussing the Town’s failure to satisfy strict scrutiny). 76. ATLANTA,GA., MUN.LAND DEV.CODE § 16-28A (Jan. 27, 2017) (highlighting the ordinance’s amendment on Nov. 11, 2015). 77. For example, Atlanta allows “portable signs” in the C-1 through C-5, I-1, I-2, SPI-1 and SPI-9 zoning districts. Id. § 16-28A.007. Section 16-28A.007 also states all areas in which “billboard signs” will be prohibited, such as “within [three-hundred] feet of any residential district boundary.” Id. The permitted location of each type of defined sign is regulated by zoning and geographical boundaries. So too is each type of defined sign regulated for size, duration, materials, etc. Id. §§ 16-28A.007(a)–(c), (j), (o), (r), (t)–(u). 78. “Billboard Signs: Billboard signs are permitted only in the I-1 and I-2 industrial districts and are subject to all of the following requirements,” and further the ordinance expressly prohibits billboards in a variety of other zoning districts. Id. § 16-28A.007(b). 79. Georgia defines a wide variety of signage, including: animated sign, banner, beacon, billboard sign, building marker, building sign, building signature sign, canopy sign, changing sign, flag, flashing sign, freestanding sign, institutional sign, large screen video display sign, marquee, marquee sign, neighborhood entrance sign, parapet wall sign, 2017] First Amendment Pitfalls 545
This categorization of signage is based upon the sign design and materials, rather than by subject matter or anticipated users.80 This drafting allows the City to maintain a content-neutral sign code and avoid potential strict scrutiny review, while still enabling substantial government oversight on signage within Atlanta. Yet the drafters still included legislative findings and purpose, presumably as defensive ammunition in the event that the regulation were found to be content-based.81 Such stated government purpose includes the general desire to protect public
pennant, portable sign, projecting sign, roof sign, rotating sign, subdivision entrance sign, suspended sign, temporary sign, and wall sign. Id. § 16-28A.004. 80. See id. (defining signs by their physical characteristics as opposed to their potential usage). 81. Georgia also includes an extensive explanation of the legislative findings, reasoning, and conclusions for enacting the sign code. See id. § 16-28A.003 (explaining the purpose and intent of enacting the code). While it is too lengthy to quote verbatim herein, certain provisions require mention: The City of Atlanta finds that the number, size, design characteristics, and locations of signs in the city directly affect the public health, safety, and welfare. The city finds that signs have become excessive, and that many signs are distracting and dangerous to motorists and pedestrians, are confusing to the public and do not relate to the premises on which they are located, and substantially detract from the beauty and appearance of the city. The city finds that there is a substantial need directly related to the public health, safety and welfare to comprehensively address these concerns through the adoption of the following regulations. The purpose and intent of the governing authority of the City of Atlanta in enacting this chapter are as follows: (1) To protect the health, safety and general welfare of the citizens of the City of Atlanta, and to implement the policies and objectives of the comprehensive development plan of the City of Atlanta through the enactment of a comprehensive set of regulations governing signs in the City of Atlanta. (2) To regulate the erection and placement of signs within the City of Atlanta in order to provide safe operating conditions for pedestrian and vehicular traffic without unnecessary and unsafe distractions to drivers or pedestrians. (3) To preserve the value of property on which signs are located and from which signs may be viewed. (4) To maintain an aesthetically attractive city in which signs are compatible with the use patterns of established zoning districts. . . . (6) To maintain and maximize tree coverage within the city. (7) To establish comprehensive sign regulations which effectively balance legitimate business and development needs with a safe and aesthetically attractive environment for residents, workers, and visitors to the city. . . . (9) To ensure the protection of free speech rights under the State and United States Constitutions within the City of Atlanta and in no event place restrictions that apply to any given sign dependent entirely on the communicative content of the sign. . . . (13) To place reasonable controls on nonconforming signs that are by definition contrary to the public health, safety and welfare while protecting the constitutional rights of the owners of said nonconforming signs. . . . Id. §§ 16-28A.003(1)–(9), (13). 546 Stetson Law Review [Vol. 46 health, safety, and welfare.82 In addition to such general terms however, the code also describes the excessive proliferation of signs, the distracting and dangerous nature of signs to motorists and pedestrians, the confusion caused by improperly located signs, and the adverse effects of signs on the aesthetics of the city.83 The stated legislative purpose also specifically identifies an intent to comply with constitutional mandates and not regulate “dependent entirely on the communicative content of the sign.”84 While the stated government purpose of a regulation does not govern a court’s analysis of the same, expressly asserting an intent to remain content neutral at least establishes a presumption of good faith efforts to regulate in a content-neutral manner.85 Best drafting practices require a government seeking compliance with the Reed decision to ensure the vast majority of sign regulations are content neutral.86 Government sign codes should describe the intended use or purpose of the sign in establishing categories for signage. In so doing, the words “commercial,” “political,” “advertising,” and “governmental” may well be stricken from the sign code. In their place should be definitions of signage based upon the materials, size, and location of the sign.87
82. Id. § 16-28A.003(1). 83. Id. § 16-28A.003. 84. Id. § 16-28A.003(9). 85. See Pine v. City of West Palm Beach, 762 F.3d 1262, 1269 (11th Cir. 2014) (explaining the government had good reason to regulate and applied the content-neutral standard for analyzing whether the regulation was narrowly tailored). 86. See Reed v. Town of Gilbert, Ariz., 135 S. Ct. 2218, 2232 (2015) (finding that content- neutral signs are subject to lessor scrutiny, while content-based signs will only be upheld in few instances if they are narrowly tailored, like warning signs). 87. For a simplistic example, below are three common types of regulated signs with examples of simple content-based definitions and content-neutral definitions: Content-Based Definitions (based upon the purpose of use of the sign): (1) “Billboard Sign” an off-site sign used for commercial or political purposes. (2) “Flag Sign” a sign which donates the country or state of origin of its user or advances patriotic pride within the community. (3) “Yard Sign” a sign designed to convey support or opposition for a political party, candidate or issue, or to advertise a commercial goods or sales, and is located in a residential yard. Content-Neutral Definitions (based upon physical attributes of the sign): (1) “Billboard Sign” a sign in excess of fifty square feet, lit or unlit, erected upon a pole or poles in excess of ten feet in height which is designed for and contains readily-changeable copy. (2) “Flag Sign” an unlit banner, pennant, or other cloth style signage designed to hang from a pole or hook but not be permanently affixed on all sides. 2017] First Amendment Pitfalls 547
Further, regulations associated with each type of so-defined sign must be uniform to all users, without any special benefits or exceptions. This may prove to be more challenging than simply developing new sign definitions since the ordinance drafters must consider how a one-size-fits-all allowance for a certain type of sign may have unintended consequences. For example, if LED signage will be permitted, it will likely be sought by movie theaters, sports facilities, bars and restaurants (even those in a predominantly residential areas), adult entertainment facilities, and even some churches (also often located in residential areas). While time consumptive, it would be wise for ordinance drafters to conduct a thorough survey of the community to identify which types of signs are currently in use and where loosened sign regulations may have adverse effects. It is vitally important to identify these adverse effects and address them, in a content-neutral manner, before enacting the regulation. Attempting to prevent the “wrong” user from obtaining an allowed sign by retro-fitting a sign ordinance could lead to inverse condemnation or similar claims, while denial of a permit will likely lead to a constitutional challenge.88 To avoid over proliferation of signs or to prevent inappropriate signs within the community, drafters should rely upon restrictions applied throughout a zoning district or zoning district-wide, or upon consistent time and manner restrictions. The former would entail a carte-blanche restriction upon certain types of defined signs within a zoning district. For example, a government could prohibit all billboards or flag signs within specified residential zoning districts. This zone-based sign regulation may even require creation and adoption of new zoning districts. For instance, a
(3) “Yard Sign” an unlit sign of less than five square feet, constructed of wood, cardboard, or plastic, which are designed to be temporary, portable, and reusable. 88. See Corn v. City of Lauderdale Lakes, 816 F.2d 1514, 1516–17 (11th Cir. 1987) (giving a thorough examination of potential judicial remedies which might be sought against a government which alters land use entitlements on private property, including the potential for inverse condemnation in some states, as well as nullification of the law in its entirety); see also First English Evangelical Lutheran Church of Glendale v. Cnty. of L.A., Cal., 482 U.S. 304, 315 (1987) (recognizing that when the government takes a person’s property rights, that person can bring an action in inverse condemnation). Florida governments must also be cautious of the Bert J. Harris, Jr., Private Property Rights Protection Act, which creates a unique cause of action for a property owner who has been “inordinately burdened” by a government zoning action. See FLA.STAT. § 70.001 et seq. (2016) (providing relief for people whose property use has been inordinately burdened by the government). 548 Stetson Law Review [Vol. 46 community may wish to allow large, well-lit, modern signage in modern commercial areas, but not in a historical commercial district. In such case, the community should adopt a historic, commercial zoning district to limit signage.89 The government may also employ time and manner restrictions in order to limit adverse signage affects. These restrictions may also be applied throughout a zoning district or zoning district-wide, or may apply throughout the community. For example, a content-neutral time restriction would be to require all sign illumination be darkened or dimmed during certain hours.90 Another example of a content-neutral time restriction would be to limit the number of consecutive or cumulative days a yard sign may be erected.91 Manner restrictions will often relate to the size, materials, lighting, and similar physical characteristics of a type of sign.92 For example, a manner restriction upon billboard may be limited to twenty-four feet by twelve feet, while a flag sign may be limited to a height of fifty feet, and a yard sign would be restricted to two feet by two feet. Other examples of allowable manner restrictions would be to prohibit mechanized or air-filled signage, to limit the amount of light which may emanate from a sign, or describe required construction materials for certain categories of
89. Although, as referenced above, the government should be careful to also consider potential lawsuits when existing zoning entitlements are altered. See supra text accompanying note 88 (regarding the Private Property Rights Protection Act). 90. See, e.g.,GILBERT,AZ., SIGN REGULATIONS art. 4.403(G)(1)(d) (Mar. 3, 2016), available at http://www.gilbertaz.gov/home/showdocument?id=8475 (requiring all electronic changeable message signs to have dimming features that appropriately adjust to the conditions). 91. Yard signs (typically small, temporary signs stuck in the ground upon thin metal supports) may prove to be the most tricky to regulate since they are used in such a wide variety of speech: political, commercial, directional, informational, etc., and by such a variety of users: small and large commercial ventures, private individuals, churches, schools, campaigns, etc. Any length-of-time restriction on these types of signs must take into account the common practice of leaving political signs in yards for months prior to election cycles, as well as the common practice of schools and churches to erect certain signs on a regular basis but not necessarily day-to-day basis for notification of services and meetings, as well as irregular use by private citizens to advertise the occasional yard sale or birthday party. Since Reed does not allow variant timing for these variant uses, governments will have to strike a compromise with regard to the number of consecutive and/or cumulative days yard signs will be allowed in order to allow the speech, yet not have a community constantly overrun by tiny yard signs. 92. See Reed v. Town of Gilbert, Ariz., 135 S. Ct. 2218, 2223 (2015) (listing content- neutral restrictions that include size, material, lighting, parts, and portability). 2017] First Amendment Pitfalls 549 signs. As with all other regulations though, these must be applied uniformly to all similarly situated signs.93 Lastly, the drafters must take care to ensure there is no room for subjective enforcement or favorable treatment within the sign code.94 Certainly, governments cannot and should not afford their own signs exemption from regulation. Where necessary, the government may engage in content-based regulations, but must be prepared with evidence to show a compelling need for such regulation and draft it in the most narrowly tailored means to achieve such goal, ensuring the regulation is neither over, nor under, inclusive.95 Should a government choose to do so, supporting research and studies demonstrating the compelling need should be included in the legislation and legislative discussion should include any considered alternative means of regulation.96 With these precautions in place, governments can continue to regulate signage, albeit through different methods than those commonly used prior to Reed.
93. A regulation must be applied uniformly to all like-situated signs to truly be content- neutral. See id. at 2233 (explaining the different physical criteria that are used to determine which signs fall within the regulation, which is the essence of a content-neutral regulation). 94. See id. at 2224–25, 2230 (commenting and holding unconstitutional that the Town gave certain sign messages favorable treatment). 95. See Madsen v. Women’s Health Ctr., 512 U.S. 753, 765 (1994) (noting that a content- neutral regulation may “burden no more speech than necessary to serve a significant government interest”); Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (stressing the importance of the government need to be unrelated to the content of the regulated speech); Cox v. New Hampshire, 312 U.S. 569, 576 (1941) (giving municipalities the power to regulate without unfair discrimination); Pine v. City of West Palm Beach, 762 F.3d 1262, 1269 (11th Cir. 2014) (noting the lenity of content-neutral regulation, as it does not need to be the least restrictive); see, e.g., Animal Rights v. Siegel & Westgate Resorts, Ltd., 867 So. 2d 451, 455 (Fla. 5th Dist. Ct. App. 2004) (giving the example of public safety as recognized significant government interest in the content-neutral analysis); Daley v. City of Sarasota, 752 So. 2d 124, 126 (Fla. 2d Dist. Ct. App. 2000) (finding a significant government interest in regulating unreasonable sound). 96. In the context of another type of highly litigated government regulation upon speech, adult entertainment, proving the compelling government purpose is often achieved by supporting studies incorporated into the adopting ordinance. See City of Renton v. Playtime Theatres, 475 U.S. 41, 50–51 (1986) (noting the City of Renton’s reliance on the effects of adult films in Seattle when drafting their ordinance). Further, reading Reed in conjunction with Solantic, it appears any government justification of sign regulation based upon the grounds of community aesthetics or traffic safety must have supporting evidence rather than vague assertions. See Reed v. Town of Gilbert, Ariz., 135 S. Ct. 2218 (2015) (the town simply made assertions justifying its preservation of aesthetic appeal and traffic safety); Solantic, LLC v. City of Neptune Beach, 410 F.3d 1250, 1267 (11th Cir. 2005) (explaining that even if traffic and aesthetic concerns were adequate justifications, the Town only recited those interests in the abstract so the ordinance cannot pass strict scrutiny). As such, the best practice would be to, like in adult entertainment ordinances, incorporate expert studies to support the legislative finding and purpose. 550 Stetson Law Review [Vol. 46
III. NOISE REGULATION
Noise is another area of speech regulation in which government regulation often runs afoul of the First Amendment.97 It is a tricky area for governments to tread due to the nebulous nature of noise.98 Nor is it always in a government’s own interest to regulate noise since many government-sanctioned activities— parades, firework displays, and public concerts—often result in extensive noise.99 Yet, rarely can governments avoid treading into noise regulation when citizens demand action against loud, rancorous, and offensive sounds.100 Like sign regulations, noise regulations will be reviewed based upon whether they are content neutral or content based, and if found to be content based, the highly exacting strict scrutiny judicial standard will be applied.101 Additional constitutional challenges of vagueness and overbreadth are also common to noise regulations.102 Significant federal noise regulation cases, including the U.S. Supreme Court case, Grayned v. City of Rockford,103 and more
97. Historically, amplified sound has been of particular concern. See generally Saia v. New York, 334 U.S. 558, 562 (1948) (holding a noise regulation which criminalized amplified speech to be an unconstitutional restraint on the right to free speech due to the unfettered description it afforded the police and lack of narrowly drawn standards). 98. See Jolene Creighton, How Sound Works: The World’s Loudest Noises,FUTURISM (October 10, 2015), http://futurism.com/how-sound-works-the-worlds-loudest-noises- interactive-infographic/ (explaining how sounds are physical vibrations). 99. See generally Loyola University Health System, Fireworks, Construction, Marching Bands Can Cause Permanent Hearing Loss,SCIENCEDAILY.COM (June 17, 2014), https://www.sciencedaily.com/releases/2014/06/140617164244.htm (finding that the registered level for fireworks is 150 decibels and concerts is 115 decibels, compared to normal conversation at 60 decibels). 100. Although what is loud, rancorous, or obnoxious noise is often in the ear of the beholder, leading to even more trouble with regulation. See generally City of Miami Beach v. Seacoast Towers-Miami Beach, Inc., 156 So. 2d 528, 531 (Fla. 3d Dist. Ct. App. 1963) (finding an anti-noise ordinance that served to effectively prohibit a land owner from engaging in construction activities on his property simply to avoid annoyance to his neighbors unconstitutional). 101. While the constitutional requirements of strict scrutiny (namely a compelling government purpose and narrowly tailored means) have already been discussed in this Article and will not be belabored here, two Florida cases provide analysis of strict scrutiny application to government noise regulation. See State v. Catalano, 104 So. 3d 1069, 1079 (Fla. 2012) (noting that where time, place, and manner restrictions upon noise are content based, strict scrutiny must be applied); Montgomery v. State, 69 So. 3d 1023, 1030 (Fla. 5th Dist. Ct. App. 2011) (noting that a noise regulation which discriminates between various types of speech is not content neutral, and therefore, strict scrutiny judicial review applies). 102. E.g., Grayned v. City of Rockford, 408 U.S. 104, 108–09 (1972); Pine v. City of West Palm Beach, 762 F.3d 1262, 1275 (11th Cir. 2014). 103. 408 U.S. 104 (1972). 2017] First Amendment Pitfalls 551 recently the Eleventh Circuit decision in Pine v. City of West Palm Beach,104 established the current parameters to ensure government regulations are sufficiently clear and objective to avoid constitutional invalidity.105 Quite recently, the Florida Supreme Court added to this body of caselaw on noise regulation in State v. Catalano.106
A. Federal Standards Upon Government Noise Regulation
In Grayned v. City of Rockford, the U.S. Supreme Court established minimum standards for government noise regulations.107 At issue was a government ordinance, which established a 150 foot anti-noise perimeter around schools.108 Challengers to this prohibition argued that the regulation was unconstitutionally vague.109 While the Court found that the ordinance was not void for vagueness, its review of the minimum requirements for a noise ordinance are a necessary starting point for examination of any noise regulation.110 Reiterating the “basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined,” the Court placed significant emphasis on whether the subject noise regulation: (1) provided fair warning to potentially regulated parties, (2) provided “the person of ordinary intelligence a reasonable opportunity to know what is prohibited,” and (3) avoided the risk of “arbitrary and discriminatory” application by enforcing authorities.111 In the subject noise ordinance, the Court looked with favor upon the City’s self-imposed conditions precedent to finding a noise violation.112 Among these conditions was a finding that the noise at issue was incompatible with normal school activity; that the noise actually disrupted school activity;
104. 762 F.3d 1262 (11th Cir. 2014). 105. See Grayned, 408 U.S. at 112 (stating that a statute need not have a specific quantum of disturbance, but there needs to be some measure); Pine, 762 F.3d at 1275 (noting the necessity that the law can provide notice to those who could be affected). 106. 104 So. 3d at 1072. 107. 408 U.S. at 108. 108. Id. at 107. 109. Id. at 108. 110. Id. at 114. 111. Id. at 108–09; see also Pine v. City of West Palm Beach, 762 F.3d 1262, 1275 (11th Cir. 2014) (reiterating the factors noted in Grayned). 112. Grayned, 408 U.S. at 113–14. 552 Stetson Law Review [Vol. 46 and that the noise was willfully conducted.113 These conditions precedent led the Court to find sufficient protection against arbitrary or subjective government enforcement, and therefore that the code was not unconstitutionally vague.114 The Eleventh Circuit more recently expanded upon the drafting precision required to survive vagueness or overbreadth challenges in the 2014 case, Pine v. City of West Palm Beach.115 At issue in Pine was a noise ordinance drafted to limit the noise created by protesters outside of medical facilities.116 The City had enacted a prohibition on amplified sound on any public street or sidewalk within one hundred feet of the property line of a health care facility.117 The City’s stated legislative purpose included a finding that loud noise had an adverse effect on medical patients and it would be in the public interest to alleviate such source of potential harm.118 Legislative history further indicated that the City had previously amended the noise ordinance to restrict its scope from the broad term of “any unnecessary noise” to a more limited term of “amplified sound.”119 In addition to this legislative purpose and history indicating that the ordinance had been designed to meet a compelling and documented legislative purpose and had been restricted to a narrowly tailored scope, the court viewed it favorably that the City had placed some burden and responsibility upon the health care facilities which wished to reap the benefits of this noise restriction.120 A health care facility seeking to limit noise within its vicinity was obligated to post signage throughout the property indicating that it was a “Quiet Zone.”121 The court found such signage provided due process to potentially affected parties via
113. Id. 114. Id. at 114. 115. 762 F.3d at 1262. 116. Id. at 1265. 117. Id. 118. Id. at 1265–66. 119. Id. at 1265–67. The term “amplified sound” was then further restricted through a definition of “a sound augmented by any electronic or other means that increases the sound level or volume.” Id. at 1267. 120. See id. at 1226–67 (noting that the City tailored the sound ordinance to be clearly defined and narrowly tailored). 121. Id. at 1267. 2017] First Amendment Pitfalls 553 highly visible notice that noise restrictions might be enforced against them in designated areas.122 The City of West Palm Beach had carefully drafted its noise ordinance to incorporate findings to demonstrate a compelling government need to help recovering patients and had taken care, even to the point of amending its ordinance, to ensure it was a narrowly tailored method to achieve this goal.123 Further, the code included the easily understood and quantifiable standard of one hundred feet to put the public on notice of which areas were quiet zones.124 The City then placed some burden on the benefited party and, in so doing, ensured public notice that noise restrictions were in place in certain geographical locations.125 This well-developed noise ordinance was found by the Eleventh Circuit to be constitutionally sound and can serve, in part, as a model for other jurisdictions.126
B. Recent Developments in Florida Regarding Government Noise Regulation
With its abundance of theme parks, entertainment venues, beaches, and bike-weeks, the State of Florida has a greater need to enact noise regulations than most states.127 The Florida Supreme Court recently addressed constitutional issues of vagueness, overbreadth, and infringement upon protected speech vis-à-vis
122. See id. at 1275 (stating, “The Sound Ordinance is not unconstitutionally vague because it squarely gives fair notice to those who may be affected”). 123. See id. at 1266 (explaining that West Palm Beach amended its sound ordinance in 2008 to improve clarity). 124. Id. at 1265. 125. See id. at 1266 (noting that the prohibition extends one-hundred feet from the property line of the benefitting health care facility). 126. See id. at 1276 (holding that the “City’s noise control regulations give a person of ordinary intelligence fair notice of what type of amplified sound is restricted”); e.g.,WEST PALM BEACH,FLA., MUN.CODE ch. 34, art. II. 127. See Mary Beth Griggs, A Map of America’s Noise Levels: Looking for a Little Peace and Quiet?,POPULAR SCIENCE (February 18, 2015), http://www.popsci.com/map-quietest- places-america (showing the loudness in decibels across the United States). The City of Orlando, Florida in particular has been ranked one of the noisiest cities in America. Lila Battis, The Loudest Cities in America,MEN’S HEALTH (August 6, 2013), http://www .menshealth.com/guy-wisdom/loudest-cities. 554 Stetson Law Review [Vol. 46 government noise regulation.128 In State v. Catalano,129 the Court reviewed a statewide statute which, in part, regulated the emission of sound from vehicles.130 At issue was a restriction upon sound “[p]lainly audible at a distance of [twenty-five] feet or more from the motor vehicle.”131 Violation of this Statute constituted a
128. State v. Catalano, 104 So. 3d 1069, 1072 (Fla. 2012). Additional analysis is provided by the Second District in Easy Way of Lee Cnty. v. Lee Cnty., 674 So. 2d 863, 864 (Fla. 2d Dist. Ct. App. 1996), in which the court reversed a local government’s noise restrictions against a late-night business. The regulations at issue prohibited the use of musical instruments, devises for the reproduction of sound, and loudspeakers between certain regulated nighttime hours. Easy Way of Lee Cnty., 674 So. 2d at 864. The regulations did include First Amendment protections against vagueness in the form of specific decibel measurements, geographical parameters, and expressly defined terminology. Id. Yet, the court found that the government lacked a sufficiently compelling interest, and cited C.C.B. v. State for its finding “that the aim of protecting citizens from annoyance is not a ‘compelling’ reason to restrict speech in a traditionally public forum.” Id. at 865 (citing C.C.B. v. State, 458 So. 2d 47, 50 (Fla. 1st Dist. Ct. App. 1984)). Further, the court held the ordinance to be unconstitutionally overbroad stating, “If, at the expense of First Amendment freedoms, a statute reaches more broadly than is reasonably necessary to protect legitimate state interests, a court may forbid its enforcement.” Id. at 866. The court explained that a combination of undefined terms for enforcement, as well as various subjective standards, failed to alert a potential violator as to exactly what conduct was proscribed, and therefore rendered it both unconstitutionally vague and overbroad. Id. at 865–67; see also Daley v. City of Sarasota, 752 So. 2d 124, 126–27 (Fla. 2d Dist. Ct. App. 2000) (noting, “[T]he City’s ordinance can be used to suppress First Amendment rights far more severely than can be justified by the City’s interest in regulating unreasonable sound. . . . The City may [only] regulate amplified sound subject to strict guidelines and definite standards closely related to permissible governmental interests”). Explaining that “[t]he traditional standard of unconstitutional vagueness is whether the terms of a statute are so indefinite that ‘men of common intelligence must necessarily guess at its meaning and differ as to its application.’” Easy Way of Lee Cnty., 674 So. 2d at 866 (quoting Connally v. Gen. Constr. Co., 269 U.S. 385, 391 (1926)). The court also explained that to avoid a vagueness problem, the regulation “must provide adequate notice to persons of common understanding concerning the behavior prohibited and the specific intent requirement: it must provide ‘citizens, police officers and courts alike with sufficient guidelines to prevent arbitrary enforcement.’” Id. at 865–66 (citation omitted). Applying these standards to the county ordinance at issue, the Second District found the drafters had failed to “define its crucial terms . . . so as to secure against arbitrary enforcement” rendering the ordinance unconstitutionally vague. Id. at 866. 129. 104 So. 3d 1069 (Fla. 2012). 130. Id. at 1072. See also FLA.STAT. §§ 316.3045(1)(a)–(b) (2007). Specifically, the statute established the following standards: (1) It is unlawful for any person operating or occupying a motor vehicle on a street or highway to operate or amplify the sound produced by a radio, tape player, or other mechanical soundmaking device or instrument from within the motor vehicle so that the sound is: (a) Plainly audible at a distance of [twenty-five] feet or more from the motor vehicle; or (b) Louder than necessary for the convenient hearing by persons inside the vehicle in areas adjoining churches, schools, or hospitals. Id. 131. Catalano, 104 So. 3d at 1072. 2017] First Amendment Pitfalls 555
“noncriminal traffic infraction, punishable as a nonmoving violation.”132 The legislature had delegated authority to define the term “plainly audible” to the Florida Department of Highway Safety and Motor Vehicles.133 The Statute also included a list of exemptions from the statutory restrictions, including vehicles and noise used for “business or political purposes.”134 In Catalano, the Court reiterated the well-established principal that noise created by music, including amplified music, is speech entitled to protection under the First Amendment.135 As such, the Court first examined whether the regulation was content based or content neutral to determine which constitutional standard of review to apply, while reiterating that both types of regulation must meet the applicable First Amendment requirements.136 Content-neutral noise regulations may impose time, place, or manner restrictions on the speech, so long as such regulations are narrowly tailored to serve a significant governmental interest and leave open ample alternative channels for communication of the information.137 However, even in creating a content-neutral noise
132. Id. at 1073. 133. The DMV defined “plainly audible” as: [A]ny sound produced by a radio, tape player, or other mechanical or electronic soundmaking device, or instrument, from within the interior or exterior of a motor vehicle, including sound produced by a portable soundmaking device, that can be clearly heard outside the vehicle by a person using his normal hearing faculties, at a distance of twenty-five feet [] or more from the motor vehicle. Id. (citation omitted). The DMV also required any enforcing officer to “have a direct line of sight and hearing” to the source of the alleged violating vehicle. Id. (citation omitted). 134. Id. 135. “[T]he right to play music, including amplified music, in public fora is protected under the First Amendment.” Id. at 1078; see also Ward v. Rock Against Racism, 491 U.S. 781, 788–90 (1989) (noting that regulation of amplified music in public park was protected by the First Amendment); Saia v. New York, 334 U.S. 558, 562 (1948) (finding that “[t]he police need not be given the power to deny a man the use of his radio in order to protect a neighbor against sleepless nights”); Montgomery v. State, 69 So. 3d 1023, 1028 (Fla. 5th Dist. Ct. App. 2011) (holding that “[m]usic, as a form of expression and communication, is protected under the First Amendment. . . . This protection extends to amplified music”); Daley v. City of Sarasota, 752 So. 2d 124, 125 (Fla. 2d Dist. Ct. App. 2000) (internal citations omitted). 136. Catalano, 104 So. 3d at 1078; see also Animal Rights Found. of Fla. v. Siegel, 867 So. 2d 451, 455 (Fla. 5th Dist. Ct. App. 2004) (explaining the analysis is dependent upon the content-neutrality). 137. See Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984) (explaining that governments may place restrictions upon the time, place, and manner of protected speech subject to content-neutrality, a narrowly tailored scope of regulation, and allowance for alternative means of speech); see also Madsen v. Women’s Health Ctr., 512 U.S. 753, 765 556 Stetson Law Review [Vol. 46 regulation, a government must be wary not to over-regulate “in such a manner that a substantial portion of the burden on speech does not serve to advance its goals.”138 The Court then reiterated that a content-based regulation upon noise is presumptively invalid and must overcome strict scrutiny.139 In addition, the Court explained that noise regulation, even if for a compelling interest and narrowly tailored, must “leave open ample alternative channels for communication of the information.”140 In Catalano, the Court found that the regulation was not content neutral because, by its express terms, it treated business and political speech more favorably than other forms of speech and was therefore subject to strict scrutiny review.141 The State alleged that it had a compelling reason to enact this Statute, namely to
(1994) (noting that a content-neutral regulation may “burden no more speech than necessary to serve a significant government interest”); Ward, 491 U.S. at 791 (noting that content-neutrality hinges on whether the regulation is the result of the government’s disagreement with its message); Pine v. City of West Palm Beach, 762 F.3d 1262, 1269 (11th Cir. 2014) (explaining that content-neutral regulations have lower standards); Montgomery, 69 So. 3d at 1029 (noting that regulations requires specificity); Animal Rights, 867 So. 2d at 455 (stating that regulations cannot unnecessarily burden speech); Daley, 752 So. 2d at 126 (noting that “the mere existence of an alternative means of expression, such as unamplified speech, will not by itself justify a restraint on the particular means that the speaker finds more effective”). 138. Ward, 491 U.S. at 799; see also Pine, 762 F.3d at 1269–70 (quoting the same language). 139. Catalano, 104 So. 3d at 1079; see also Animal Rights, 867 So. 2d at 456–57 (finding that an injunction upon the use of megaphones, bull horns, and shouting to “burden more speech than is necessary to protect any valid public interest because they enjoin all shouting and all uses of bullhorns or megaphones, rather than tailoring a prohibition against impermissible conduct . . . [a]s such, the injunction is impermissibly broad”); Simmons v. State, 944 So. 2d 317, 323 (Fla. 2006) (stating that strict scrutiny applies to the law because it is content-based); Firestone v. News–Press Publ’g Co., 538 So. 2d 457, 459 (Fla. 1989) (requiring restrictions on First Amendment rights to be met with strict scrutiny); State v. Gray, 435 So. 2d 816, 819 (Fla. 1983) (noting how infringing on a constitutionally protected freedom affects the court’s analysis); see generally Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622 (1994) (denying application of strict scrutiny to content-neutral must-carry rules); R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) (holding ordinance invalid under the First Amendment). 140. Catalano, 104 So. 3d at 1078; see also N. Fla. Women’s Health & Counseling Servs., Inc. v. State, 866 So. 2d 612, 625 n.16 (Fla. 2003) (stating that “[u]nder ‘strict’ scrutiny, which applies inter alia to certain classifications and fundamental rights, a court must review the [regulation] to ensure that it furthers a compelling [s]tate interest through the least intrusive means”). 141. 104 So. 3d at 1078–79; see also Daley, 752 So. 2d at 127 (finding a ban on amplified sound from a non-enclosed structure during certain hours to be constitutionally overbroad and explaining that any anti-noise “regulation must be sufficiently definitive as to secure against arbitrary enforcement”). 2017] First Amendment Pitfalls 557 protect its citizens and ensure traffic safety.142 The Court found that, even assuming such reason was compelling, the State had not narrowly tailored this ordinance to actually achieve such interests because it still allowed amplified business and political speech.143 As such, the regulation failed strict scrutiny review.144 The Court also reviewed the challenger’s claims that the statute was unconstitutionally overbroad and vague.145 In explaining the doctrine of overbreadth, the Court stated, “The overbreadth doctrine applies when legislation criminalizes constitutionally protected activities along with unprotected activities, by sweeping too broadly and infringing upon fundamental rights.”146 Alternatively stated, a regulation is overbroad if it causes “a substantial amount of protected speech [to be] prohibited or chilled in the process.’”147 Due to the scope of the subject regulation, which restricted many types of noise in a more intrusive manner than necessary to accomplish the stated goals, the Court found it to be unconstitutionally overbroad.148 Interestingly, the Statute did survive a vagueness challenge.149 Vagueness is a slightly different constitutional concern from overbreadth.150 An overly vague regulation is one
142. Catalano, 104 So. 3d at 1080. 143. Id. 144. Id. 145. Id. at 1075–77 146. Id. at 1077 (quoting Firestone v. News–Press Publ’g Co., 538 So. 2d 457, 459 (Fla. 1989) (citing State v. Gray, 435 So. 2d 816, 819 (Fla. 1983))). 147. Id. (citing Ashcroft v. Free Speech Coalition, 535 U.S. 234, 255 (2002); City of Daytona Beach v. Del Percio, 476 So. 2d 197, 202 (Fla. 1985)). 148. Id. at 1077–79. 149. Id. at 1077. 150. The difference between overbreadth and over-vagueness was succinctly described by the Florida Supreme Court in Simmons v. State: “[T]he doctrines of overbreadth and vagueness are separate and distinct.” Southeastern Fisheries Ass’n v. Dep’t of Natural Res., 453 So. 2d 1351, 1353 (Fla. 1984). The overbreadth doctrine applies only if the legislation is susceptible of application to conduct protected by the First Amendment. Id. The overbreadth doctrine contemplates the pragmatic judicial assumption that an overbroad statute will have a chilling effect on protected expression. See City of Daytona Beach v. Del Percio, 476 So. 2d 197, 202 (Fla. 1985). The vagueness doctrine has a broader application because it was developed to ensure compliance with the Due Process Clause in the Fifth Amendment of the United States Constitution. Florida’s Constitution includes a similar due process guarantee in article I, section 9. . . .Because of its imprecision, a vague statute may also invite arbitrary or discriminatory enforcement. See Southeastern Fisheries, 453 So. 2d at 1353. 944 So. 2d 317, 323–24 (Fla. 2006). 558 Stetson Law Review [Vol. 46 which “fails to give a person of common intelligence fair and adequate notice of what conduct is prohibited and which, because of its imprecision, may also invite arbitrary and discriminatory enforcement.”151 Due to the Statute’s inclusion of certain quantitative standards, such as a twenty-five foot geographical limitation, as well as clearly articulated definitions such as “plainly audible,” the Court found that this noise regulation could indeed survive a vagueness challenge.152 The Court warned however, that objective, measurable standards were necessary for constitutionality and less defined terms, such as “excessive, raucous, disturbing, or offensive” would expose the noise regulation to a finding of unconstitutional vagueness.153
C. Best Drafting Practices for Government Noise Regulations
Recent caselaw demonstrates that courts strongly encourage well-defined, narrowly tailored, objective, and quantitative standards from governments that wade into the amorphous field of noise regulation.154 Fortunately, content-neutral time, place, and manner noise regulations (which will not lead to strict scrutiny review) tend to be easier to draft than content-neutral sign regulations. The legislators must simply take care to enact the restrictions without regard to the type of noise, whether music, protest chants, or commercial advertisements. Rather, across-the- board noise regulations should be based upon reasonable decibel levels, specified times of day or night, and geographical areas.155
151. Montgomery v. State, 69 So. 3d 1023, 1028 (Fla. 5th Dist. Ct. App. 2011) (citing Brown v. State, 629 So. 2d 841, 842 (Fla. 1994)). 152. Catalano, 104 So. 3d at 1075–76. The court cited several other cases in support of its finding that geographical restrictions, even as little as five feet or as extensive as one- hundred feet, could insulate a noise regulation from a vagueness challenge. Id. at 1076–77. 153. Id. at 1076. 154. See Grayned v. City of Rockford, 408 U.S. 104, 108–09 (1972) (allowing the City to regulate noise that disturbs the peace); Pine v. City of West Palm Beach, 762 F.3d 1262, 1275 (11th Cir. 2014) (noting that mathematical certainty, while desirable, is not attainable from the English language); Catalano, 104 So. 3d at 1072 (striking down a regulation because the language used was too broad). 155. For example, a restriction against a noise in excess of twenty decibels after ten o’ clock post meridiem (10:00 p.m.) would likely be considered a valid time, place, and manner restriction upon noise. A government might also tailor the times and allowable decibel limits within different zoning districts. For example, downtown urban zones may have a noise “curfew” of two o’clock ante meridiem (2:00 a.m.), while residential zones may have a noise 2017] First Amendment Pitfalls 559
As long as not overly-restrictive and alternative avenues for noise making are left open, such time, place, and manner restrictions should meet constitutional muster.156 Clearly defined terms are also necessary to prevent discretionary or arbitrary enforcement by city officials, such as police and code enforcement officers. While discretion may be more convenient to the government, perhaps even desired by the government, it is the antithesis of the free speech principles established by our court system.157 To avoid such constitutional hazards, it is important to incorporate objective and defined terms for enforcement. A good starting point for such objective enforcement is the use of decibel levels in the ordinance and well- calibrated decibel meters in practice. Similarly, a clearly stated location of the noise ordinance, whether specific distance from the source of the noise or whether measured at a property line, is necessary to a well-drafted noise ordinance. When the ordinance incorporates terms open to interpretation, such as “loud” or “disturbing,” these terms must be expressly defined to avoid subjective enforcement. Lastly, the government must take care not to exempt or allow special treatment of “preferred” types of speech, such as government-sponsored fireworks displays or civic parades. Nor may the government treat certain types of speech, such as music or protests, in a more restrictive fashion than similarly emitted noise. While governments will inevitably want to encourage some noises while eliminating others, even-handed application of reasonable time, place, and manner regulations upon noise is vital
curfew of 10:00 p.m. However, when enacting anti-noise regulations to specific geographical areas, such as near churches, schools, and medical facilities, the government should clearly articulate why the noise restriction is necessary in those particular areas as opposed to others so as to avoid claims of discriminatory treatment of certain kinds of speakers over others. An example of such potential pitfalls would be to limit speech of protestors around medical facilities that perform abortions while allowing protestors outside of a political office. To resolve this type of conundrum, best drafting practices would limit all assemblies adjacent to private property to a certain decibel level. E.g., Grayned, 408 U.S. 104; Pine, 762 F.3d 1262. 156. However, leaving such an alternative does not necessarily ensure strict scrutiny success. As noted by the Second District Court of Appeal in Daley, “[T]he mere existence of an alternative means of expression, such as unamplified speech, will not by itself justify a restraint on the particular means that the speaker finds more effective.” 752 So. 2d at 126 (citing Reeves v. McConn, 631 F.2d 377, 382 (5th Cir. 1980)). 157. See Daley, 752 So. 2d at 127 (describing the government regulation as prohibiting amplified sounds). 560 Stetson Law Review [Vol. 46 to avoid strict scrutiny review and ensure the likelihood the noise ordinance will withstand judicial review.
IV. PROCEDURAL SAFEGUARDS
In addition to substantive constitutional protections, it is important that both sign and noise regulations include procedural due process safeguards.158 As discussed above, part of this procedural due process requires reasonable notice to potential violators that they risk violating the law through their action.159 Similarly, due process requires that the regulation include clearly defined terms for regulated activity ensuring that reasonable minds understand what activities would constitute a violation.160 Once a violation of the sign or noise regulation is determined by an enforcement officer, basic procedural due process requires that the alleged violator be given notice of the charges against them and a meaningful opportunity to be heard in their defense.161 As such, the procedures for notice to an alleged violator, as well as the notice of the time and place of the violation hearing, should be provided in writing and in a manner by which actual receipt of the notice may be ensured.162 This notice should be followed by a hearing before an unbiased enforcement body, during which the alleged violator may be heard in their own defense, with the
158. When fundamental substantive rights are at issue, procedural due process “serves as a vehicle to insure fair treatment through the proper administration of justice.” Massey v. Charlotte Cnty., 842 So. 2d 142, 146 (Fla. 2d Dist. Ct. App. 2003) (citing Keys Citizens for Responsible Gov’t, Inc. v. Fla. Keys Aqueduct Auth., 795 So. 2d 940, 948 (Fla. 2001)). 159.A basic component of such due process is providing the alleged violator with notice of the charges against them and an opportunity to be heard in regard to such charges. See Little v. D’Aloia, 759 So. 2d 17, 19–20 (Fla. 2d Dist. Ct. App. 2000) (requiring that notice be reasonably calculable); Michael D. Jones, P.A. v. Seminole Co., 670 So. 2d 95, 96 (Fla. 5th Dist. Ct. App. 1996) (giving the example of notice prior and after a proceeding); Lee Cnty. v. Sunbelt Equities, II, Ltd. P’ship, 619 So. 2d 996, 1002 (Fla. 2d Dist. Ct. App. 1993) (quoting Jennings v. Dade Cnty., 589 So. 2d 1337, 1340 (Fla. 3d Dist. Ct. App. 1991)) (explaining the difference between notice required in a judicial and quasi-judicial hearing); see generally Dawson v. Saada, 608 So. 2d 806, 808 (Fla. 1992) (discussing the notice requirements in connection to property ownership). 160. See generally Dawson, 608 So. 2d at 808 (noting that the legislature has the ability to define to what extent a person can be heard under notice requirements); Little, 759 So. 2d at 18 (describing actions taken by the City to give property owners notice before seizing the property); Verizon Bus. Network Serv. v. Dep’t of Corrections, 988 So. 2d 1148, 1151 (Fla. 1st Dist. Ct. App. 2008) (noting the importance of the constitutional guarantee to being heard before an impartial tribunal). 161. See Little, 759 So. 2d at 19–20; Michael D. Jones, P.A., 670 So. 2d at 96; Lee Cnty., 619 So. 2d at 1002 (quoting Jennings, 589 So. 2d at 1340). 162. FLA.STAT. ch. 162 (2016). 2017] First Amendment Pitfalls 561 assistance of legal counsel, if desired.163 Oftentimes, governments use general enforcement bodies, such as code enforcement boards or a special magistrate, to enforce sign and noise regulations.164 However, the procedural safeguards of these enforcement bodies should be reviewed to ensure they afford all constitutional protections required when engaging in an enforcement action upon a fundamental right, such as the freedom of speech.165
V. CONCLUSION
Government regulation of both signage and noise implicate fundamental rights and are therefore highly scrutinized by the courts. For better or worse, recent caselaw from the U.S. Supreme Court and other courts of appeal have finally determined the boundaries of such government regulations. These cases indicate that regulations in both arenas will be highly scrutinized for constitutional overstep. With such firm direction from our high courts, governments at the state, local, and even federal level would do well to thoroughly review, and if necessary, overhaul their existing regulations upon signage and noise.
163. See Little, 759 So. 2d at 18 (noting a “notice of hearing on the alleged violations”); Michael D. Jones, P.A., 670 So. 2d at 96 (noting use of “notice of a hearing before the Code Enforcement Board”); Lee Cnty., 619 So. 2d at 1002 (noting the use of a quasi-judicial hearing and notice of that hearing); Jennings, 589 So. 2d at 1340 (noting the use of a quasi- judicial hearing and notice of that hearing). 164. See generally, Dep’t of Law Enforcement v. Real Property, 588 So. 2d 957, 964 (Fla. 1991) (noting the use of an adversarial preliminary hearing in a forfeiture proceeding). 165. Id.
RISK[Y] BUSINESS: TRANSITIONING TO A STAND-ALONE SELF-INSURANCE PROGRAM
Andrew P. Lannon,* Peter J. Sweeney, Jr.,** Patricia D. Smith,*** Jill E. Jacobs**** & Wendy L. Fisher*****
I. INTRODUCTION
In today’s modern society, all actions are measured against risk. Although not exactly the same as Newton’s third law, it is without doubt that both individuals and the collective of present- day society must evaluate how likely any given action will result in a possible negative consequence. Generally speaking, this is the core understanding of “risk.” The different consequences can be physical, financial, mental, or even emotional. But regardless of the category of risk that is being evaluated and the correlated potential negative outcome, it is almost impossible to simply
* © 2017, Andrew P. Lannon, Esq. All rights reserved. City Attorney, City of Palm Bay. J.D., The Catholic University of America, Columbus School of Law, 2003; B.A., College of the Holy Cross, 1996. He is one of only two attorneys in the State of Florida board certified in Business Litigation and City, County & Local Government Law. Mr. Lannon is AV Preeminent® Peer Review Rated by Martindale-Hubbell®, holds a “10.0 Superb” rating from Avvo®, and has been recognized in Florida Trend’s Florida Legal Elite in 2012, 2013, 2015, and 2016. ** © 2017, Peter J. Sweeney, Jr. All rights reserved. Deputy City Attorney, City of Palm Bay. J.D. with honors, Florida State University College of Law, 2004; B.A. with high honors, Florida State University, 2001. Mr. Sweeney is the only attorney licensed by The Florida Bar to be board certified in both City, County & Local Government law and Construction Law by the Florida Bar. Mr. Sweeney is AV Preeminent® Peer Review Rated by Martindale-Hubbell® and has further been recognized in Florida Trend’s Florida Legal Elite in 2016. *** © 2017, Patricia D. Smith. All rights reserved. Deputy City Attorney, City of Palm Bay. J.D., Nova Southeastern University, 2004; B.A., Florida State University, 1997. Ms. Smith is one of only two attorneys in the State of Florida board certified in both State & Federal Government & Administrative Practice, and City, County & Local Government Law. Ms. Smith is AV Preeminent® Peer Review Rated by Martindale-Hubbell®. **** © 2017, Jill E. Jacobs. All rights reserved. Deputy City Attorney, City of Palm Bay. J.D., University of Miami, 1987; B.A., Rutgers University, 1983. She is Florida Bar Board Certified in Workers’ Compensation. ***** © 2017, Wendy L. Fisher. All rights reserved. Junior Staff Attorney, City of Palm Bay. J.D., Stetson University College of Law, 2014; B.A., University of Central Florida, 2011. Mrs. Fisher is the recipient of the 2014 Anthony S. Battaglia Excellence in Leadership Award. 564 Stetson Law Review [Vol. 46 avoid understanding risk and continue to survive in today’s world. As mentioned above, risk is a concept that is present in virtually all areas of society. This includes risks for businesses, government agencies, and even nonprofit entities. This Article focuses on the application of risk in the context of local government in Florida—specifically municipalities—and the reasons why it is necessary to understand risk and reasonably mitigate risk. Understanding and mitigating risk is accomplished by the process known as “risk management.” There are many different tools utilized in risk management. They include changing risky behaviors through both positive incentives—such as an accident-free safety bonus—and negative punishments—such as discipline or termination for risky behavior. Another tool is to evaluate whether the action or program is worth having in place—such as “stop and frisk” police interactions or operating a public pool—and possibly discontinuing it. Perhaps the most well-known risk management tool is the use of insurance. Insurance, in its most basic form, is essentially legalized gambling, but in the negative. It is the practice of paying a certain amount of money today so that if a negative event happens in the future, the insured will receive more money to offset the cost of the negative event. There are many insurance companies that will provide insurance to address any and all manner of risk: auto liability, auto comprehensive and collision, property damage, even terrorism and catastrophic events coverage. Many of these insurance policies require only payment of an annual premium. After that, in the event of a covered claim, the insured may not have to pay anything else or may only have to pay a small deductible. However, as an alternative to the traditional full coverage or “fully insured” model, there is another approach. Today, it is possible for governments to be “self-insured,” such that the entity has no insurance policy or an insurance policy that requires the government to “self-pay” most of a claim. In exchange, the policy itself has a much smaller annual premium. The focus of this Article is to explore and analyze the “self- insured” approach to risk management by a municipality. The Article begins with necessary exploration of the types of risk most often facing municipalities and the implication of sovereign immunity in Florida when evaluating those risks. The Article 2017] Transitioning to a Stand-Alone Self-Insurance Program 565 then delves into a more in-depth discussion of the differences between fully insured and self-insured risk management programs, followed by an examination of the several factors most often utilized in deciding whether a municipality might choose a self-insured risk management program. Finally, the Article discusses the case study of the City of Palm Bay’s risk management program and submits for the reader’s conclusion, “where do we go from here”?
II. THE HISTORY OF RISK MANAGEMENT
A. Negligence
A plaintiff’s ability to bring a negligence claim against a governmental entity depends upon a waiver of sovereign immunity. While argument exists as to the origin of sovereign immunity and whether it was based on the personal prerogative of the king of England or the notion that the crown was divine and could do no wrong, sovereign immunity dates back to the feudal system.1 Even though the king could not be sued, if one was injured by the king’s ministers, he could petition the king for reprieve.2 Most petitions for legal relief pertained to real property disputes; however, “[t]he early precedents may even be read as allowing a petition of right against the king for the torts of his servants.”3 The United States government fully accepted the sovereign immunity doctrine in the early 1800s when the Court stated that
1. Muskopf v. Corning Hosp. Dist., 359 P.2d 457, 458 n.1 (Cal. 1961) (citations omitted). In the feudal structure the lord of the manor was not subject to suit in his own courts. The king, the highest feudal lord, enjoyed the same protection: no court was above him. Before the sixteenth century this right of the king was purely personal. Only out of sixteenth century metaphysical concepts of the nature of the state did the king’s personal prerogative become the sovereign immunity of the state. Id.; see also State v. Love, 126 So. 374, 377 (Fla. 1930) (“The legal doctrine that a sovereign state is immune from suit is an ancient one. . . . [I]t probably had its origin in the old theory that sovereignty was inherent in the crown, and that the king could do no wrong, and hence could not be sued.”). 2. Cauley v. City of Jacksonville, 403 So. 2d 379, 381 (Fla. 1981); see also Muskopf, 359 P.2d at 460 (citations omitted) (explaining that only those who were injured by governmental agency could recover money). 3. Muskopf, 359 P.2d at 458 n.1 (citations omitted). 566 Stetson Law Review [Vol. 46
“no suit can be commenced or prosecuted against the United States,”4 or an independent State, “except by its own consent.”5 The Court later reasoned that “[a] sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends.”6 The majority of American states adopted the sovereign immunity theory as well—the “legislative bodies are vested with the authority to grant relief for governmental wrongs through waiver of immunity”7—much like the king in feudal England. Florida adopted sovereign immunity in its earliest forms of a constitution and included the power of the Legislature to waive the immunity.8 As the Florida Supreme Court explained, “It is to the interest of the state that its immunity from suit shall be maintained and protected until the state itself, through its Legislature, by the methods pointed out in the Constitution, consents to waive or withdraw such immunity.”9 The entities entitled to this sovereign immunity were the federal government,10 the state government,11 the counties as political subdivisions of the state,12 and “public institutions created, owned, and controlled by the state or its subdivisions,”13 such as school boards or county utility districts. Municipalities, however, do not have absolute sovereign immunity as they are not subdivisions of the State.14 Any immunity they have is from the common law courts.15
4. Cohens v. Virginia, 19 U.S. 264, 411–12 (1821). 5. Id. at 380. 6. Kawananakoa v. Polyblank, 205 U.S. 349, 353 (1907). 7. Cauley, 403 So. 2d at 381. 8. See FLA.CONST. art. IV, § 19 (1868); FLA.CONST. art. III, § 22 (1885); FLA.CONST. art. X, § 13 (1968). 9. State v. Love, 126 So. 374, 377 (Fla. 1930). 10. Cohens v. Virginia, 19 U.S. 264, 411–12 (1821). 11. Cauley, 403 So. 2d at 381. 12. Kaulakis v. Boyd, 138 So. 2d 505, 507 (Fla. 1962) (“Counties, unlike municipalities, are organized as political subdivisions of the state and constitute a part of the machinery of the state government. Therefore, it has been held that they partake of the sovereign immunity from liability.”) (citations omitted). 13. Gerald T. Wetherington & Donald I. Pollock, Tort Suits Against Governmental Entities in Florida, 44 FLA. L. REV. 1, 10 (1992). 14. City of Tampa v. Easton, 198 So. 753, 754 (Fla. 1940) (“Unlike a county, a municipality is not a subdivision of the State with subordinate attributes of sovereignty in the performance of governmental functions and correlative limited privileges, immunities 2017] Transitioning to a Stand-Alone Self-Insurance Program 567
Even though the Constitution allowed the Legislature to waive immunity, the Florida Legislature “did not authorize a comprehensive, long-term, waiver of sovereign immunity, as permitted by Article X, section 13 of the Florida Constitution, until 1973, when the Florida Legislature enacted Florida Statutes [section] 768.28.”16 Today, section 768.28(1) provides, in pertinent part,
[i]n accordance with s. 13, Art. X of the State Constitution, the state, for itself and for its agencies or subdivisions, hereby waives sovereign immunity for liability for torts, but only to the extent specified in this act. Actions at law against the state or any of its agencies or subdivisions to recover damages in tort for money damages against the state or its agencies or subdivisions for injury or loss of property, personal injury, or death caused by the negligent or wrongful act or omission of any employee of the agency or subdivision while acting within the scope of the employee’s office or employment under circumstances in which the state or such agency or subdivision, if a private person, would be liable to the claimant, in accordance with the general laws of this state, may be prosecuted subject to the limitations specified in this act.17
Even though constitutional sovereign immunity did not apply to municipalities,18 municipalities still enjoyed common law immunity.19 The Florida Legislature specifically included municipalities in the waiver, stating, “As used in this act, ‘state agencies or subdivisions’ include . . . the independent establishments of the state, including state university boards of trustees; counties and municipalities.”20 The enactment of the statute effectively waived sovereign immunity for tort actions brought against any state agencies or subdivisions listed in the statute, and plaintiffs could now bring negligence claims against the state.
and exemptions from liability for negligence of its employees or in other respects as may be recognized or provided by law.”). 15. Wetherington & Pollock, supra note 13, at 11. 16. Id. at 6. 17. FLA.STAT. § 768.28(1) (2016). 18. Easton, 198 So. at 754. 19. Id. 20. FLA.STAT. § 768.28(2) (emphasis added). 568 Stetson Law Review [Vol. 46
But the waiver of sovereign immunity is limited. Courts have determined that the waiver does not apply to all governmental functions. The Florida Supreme Court held that “even absent an express exception in section 768.28,” exceptions existed “for discretionary functions, certain policy-making, planning or judgmental governmental functions.”21 The Florida Supreme Court has further explained that “capital improvements and property control operations . . . and . . . providing professional, educational, and general services for the health and welfare of the citizens,” were governmental functions that could give rise to liability, while “legislative, permitting, licensing, and executive officer functions[,] . . . enforcement of laws and the protection of the public safety,” were functions for which the government possesses no duty of care.22 The waiver is also limited by damages. The statute places a cap on the damages a plaintiff can recover at $200,000 per claim and $300,000 per incident.23 Even with the cap on damages, the waiver places a financial burden on governmental entities. The government could be liable for up to $300,000 per incident.24 But this figure neither includes the opposing party’s attorneys’ fees—which may constitute up to twenty-five percent of any judgment or settlement—nor the opposing party’s costs, which are not capped.25 And even with the $300,000 cap, claimants can still ask the Legislature to approve a claims bill to allow them to collect amounts awarded above the cap.26
21. Com. Carrier Corp. v. Indian River Cnty., 371 So. 2d 1010, 1020 (Fla. 1979). 22. Trianon Park Condo. Ass’n, Inc. v. City of Hialeah, 468 So. 2d 912, 919 (Fla. 1985). 23. FLA.STAT. § 768.28(5) (2016). Neither the state nor its agencies or subdivisions shall be liable to pay a claim or a judgment by any one person which exceeds the sum of $200,000 or any claim or judgment, or portions thereof, which, when totaled with all other claims or judgments paid by the state or its agencies or subdivisions arising out of the same incident or occurrence, exceeds the sum of $300,000. Id. 24. Id. 25. FLA.STAT. §§ 768.28(8), 57.041(1). The cap includes attorneys’ fees and costs: “[U]nder the statute as written, the trial court did not err in determining that the cap on the total amount of recovery includes any amounts recovered for attorney’s fees and costs.” Bd. of Trustees of Fla. State Univ. v. Esposito, 991 So. 2d 924, 928 (Fla. 1st Dist. Ct. App. 2008). The plaintiff would need a claims bill for any amount over the cap. 26. FLA.STAT. § 768.28(5) (“[A]nd that portion of the judgment that exceeds these amounts may be reported to the Legislature, but may be paid in part or in whole only by further act of the Legislature.”); see also, e.g., Gerard v. Dep’t of Transp., 472 So. 2d 1170, 1172 (Fla. 1985) (“[W]hile the legislature has placed limits on recovery, ‘claimants remain 2017] Transitioning to a Stand-Alone Self-Insurance Program 569
Thus, governmental entities buy insurance for three primary reasons: (1) to indemnify their employees, alleviating their fear of having a judgment against them; (2) to protect the public because governmental entities have to use taxpayer dollars to pay judgments; and (3) to avoid monetary responsibility in the event that the Legislature passes a claims bill requiring payment.27 “Although legislative claims bills are rare, they are an insurable contingency.”28 Governments have options on the means of insurance for this particular waiver of sovereign immunity.
Florida courts recognize different mechanisms for insuring governmental entities. .. .
There are six options a governmental entity has to guard against a possible lawsuit: (1) do not protect from suit at all; (2) insure only up to $[3]00,000; (3) self-insure only up to $[3]00,000; (4) self-insure up to $[3]00,000 and take out excess liability insurance for amounts over $[3]00,000; (5) self-insure (over $[3]00,000); or (6) purchase only commercial insurance.29
The statutes also allow governmental entities to self-insure, obtain liability insurance, or a combination of both, and enter into risk management programs for the purpose of waived sovereign immunity.30 However, each choice of insurance has its advantages and disadvantages, as discussed below. The waiver of sovereign immunity for torts paved the way for risk management to expand from the private sector into the government sector as well. Now that the state agencies listed in section 768.28 could be held liable for negligence, governmental agencies needed to have coverage against claims. Today, a
free to seek legislative relief bills, as they did during days of complete sovereign immunity.’” (citations omitted)); City of Lake Worth v. Nicolas, 434 So. 2d 315, 316 (Fla. 1983) (upholding the decision in Berek); Berek v. Metro. Dade Cnty., 422 So. 2d 838, 839 (Fla. 1982) (citing the provision in Florida Statutes, section 768.28(5), which allows the Legislature to award above the capped amount). 27. Robert L. Blank, Pulling the Nails Out of the Avallone Coffin: Should Excess Liability Coverage on a Self-Insurance Fund Constitute A Waiver of Sovereign Immunity?, 20 STETSON L. REV. 971, 985 (1991). 28. Id. 29. Id. at 981, 986. 30. FLA.STAT. § 768.28(16)(a). 570 Stetson Law Review [Vol. 46 competent risk management program is absolutely instrumental in considering whether a stand-alone self-insurance program is the right fit for a governmental entity. For this reason, it is strongly recommended that the agency’s risk management program be placed under the care of the local government’s attorney’s office, for only licensed attorneys are competent to evaluate and defend against active litigation and threatened or pending litigation.
B. Workers’ Compensation
When discussing workers’ compensation in an insurance context, it is important to note that workers’ compensation is a social form of insurance, like unemployment or social security, and is the oldest social insurance.31 Workers’ compensation began during the Industrial Revolution of the late 1800s in Europe.32 As the Industrial Revolution progressed, the realization of the dangers of being a factory worker increased as well as the number of on-the-job injuries.33 Countries “developed programs that provided workers with medical care for on-the-job injuries and compensated them for lost wages while they recovered.”34 However, this system was more employer-liability based, and the amount of cases grew as the legal profession started taking on the issue.35 This caused the courts to become backlogged.36 It became clear that the current liability system was not working, so a “workmen’s compensation” act was implemented.37 Some states attempted to create programs to aid workers injured on the job in the late 1800s and early 1900s, but modeled the programs as employer liability.38 The implementation of these programs caused the same backlogging issues seen in Europe.39
31. Lloyd Harger, Workers’ Compensation, A Brief History,MYFLORIDACFO.COM, http://www.myfloridacfo.com/Division/WC/InfoFaqs/history.htm (last visited Apr. 2, 2017). 32. Timothy A. Watson & Michael J. Valen, A Historic Review of Workers’ Compensation Reform in Florida, 21 FLA.ST. U. L. REV. 501, 502 (1993). 33. Id. 34. Id. 35. Harger, supra note 31. 36. Id. 37. Id. 38. Id. 39. Id. 2017] Transitioning to a Stand-Alone Self-Insurance Program 571
This prompted the United States government to take action—in 1908, the Federal Employer’s Liability Act was enacted.40 Following the Federal Employer’s Liability Act, states began to adopt their own workers’ compensation laws, with the most significant change happening in Wisconsin in 1911 when “the employer agreed to provide medical and indemnity (wage replacement) benefits and the injured employee agreed to give up his/her right to sue the employer.”41 “In 1917, the United States Supreme Court upheld the constitutionality of . . . workers’ compensation laws. . . . These decisions removed most of the constitutional concerns, and state workers’ compensation systems proliferated. Within three years, forty states had adopted workers’ compensation systems.”42 Today, every state has, in some fashion, a workers’ compensation act.43 They may vary as to classification and level of benefits provided, but some form of protection for the worker is mandatory across the nation.44 As discussed above, all programs arose historically as no-fault systems, where employers would agree to provide medical care and lost wages for industrial accidents, regardless of fault.45 In exchange, the employee forfeits the right to pursue the employer in negligence.46 In many states, this trade-off has evolved considerably over the last century.47 Because Florida’s industry was more limited to agriculture and mining, it did not adopt workers’ compensation laws until the 1930s during the Great Depression.48 “Florida started an aggressive campaign to attract business to the warmer, more economical climate in mid-depression,” and workers’
40. Id. 41. Id.; see also Robert Asher, The 1911 Wisconsin Workmen’s Compensation Law: A Study in Conservative Labor Reform, 47 WIS.MAG. OF HIST. 123, 131–36 (1974) (providing an overview of how the first workers’ compensation laws were drafted in Wisconsin lead by the Industrial Insurance Committee involving “enlightened employers” from companies like the International Harvester Company, Allis-Chalmers Company, Pabst breweries, and National Association of Manufacturers). 42. Watson & Valen, supra note 32, at 503. 43. Harger, supra note 31. 44. Workers’ Compensation Laws by State,FINDLAW.COM, http://injury.findlaw.com/ workers-compensation/workers-compensation-laws-by-state.html (last visited Apr. 2, 2017). 45. Watson & Valen, supra note 32, at 501. 46. Id. 47. See id. (explaining that workers’ compensation laws have “evolved into a complicated and confusing system”). 48. Harger, supra note 31. 572 Stetson Law Review [Vol. 46 compensation laws were necessary to meet the growing industrial employment.49 Florida passed its first workers’ compensation statute in 1935.50 Since the adoption of the law in 1935, Florida’s workers’ compensation laws have gone through many changes. This quid pro quo of employers providing benefits while employees forfeit their right to sue the employer in negligence was originally billed as “The Grand Bargain” during the debates over the 1968 Constitutional Revisions.51 Then, in 1970, the Florida Workers’ Compensation Act statutorily became the “exclusive remedy” for employees, and employers officially were immune from actions in negligence.52 With the sweeping 2003 legislative reforms of Chapter 440, Florida’s Workers’ Compensation statute, the “Grand Bargain” became less equitable as applied to many employees.53 Thus, in Florida from essentially the 1970s to about 2007, the only way for an employer to be at risk for litigation would be in situations that essentially rose to the level of an intentional tort (e.g., strict liability, negligent security, or assault). Most straight workers’ compensation policies had an addendum, commonly called “Coverage B,” for these claims, as well as for spoliation of evidence and other discovery violations.54 Until recently, recovery under those policies was capped at $100,000.00,55 and the only way an employee could recover more was through a separate Employer Liability policy. However, that
49. Id. 50. Id. 51. See, e.g., Scott Szymendera, Reviewing Workers’ Compensation for Federal Employees,CONG.RES.SERVICE, at 2 (May 12, 2011), available at http://edworkforce.house .gov/uploadedfiles/05.12.11_szymendera.pdf (noting that “[w]orkers’ compensation is commonly referred to as ‘the grand bargain’”); see also Harger, supra note 31 (referencing this quid pro quo as the “great trade-off”). 52. See FLA.STAT. § 440.03 (Supp. 1970) (explaining that workers’ compensation liability applies to “[e]very employer and employee”). For a more detailed account of the 1970 amendment to Florida’s Workers’ Compensation Act, see Viktoryia Johnson, Florida Workers’ Compensation Act: The Unconstitutional Erosion of the Quid Pro Quo, 45 STETSON L. REV. 119, 127–29 (2015). 53. See, e.g., Initial Brief of Petitioner, at 9–10, Stahl v. Hialeah Hosp., 191 So. 3d 883 (Fla. 2016) (No. SC15-725) (providing an excellent summary of this metamorphosis). 54. See, e.g., Francis J. Mootz III, Insurance Coverage of Employment Discrimination Claims, 52 U. MIAMI L. REV. 1, 11 (1997) (“Coverage B provides coverage to the insured for certain intentional torts it commits against others.”). 55. E.g., Mark L. Zientz, Dr. Strangelaw: Or How I Learned to Stop Worrying and Love Coverage B,MZLAW.COM, http://www.mzlaw.com/PUBLISHEDARTICLES/Article-CovB .html (last visited Apr. 2, 2017). 2017] Transitioning to a Stand-Alone Self-Insurance Program 573 coverage is not mandatory. In our experience, while employers did see fewer petitions and lower fees paid out in the first few years following the 2003 changes, they did not necessarily benefit from the reduced premiums promised. The State of Florida (Department of Risk Management), counties, municipalities, and cities are treated no differently than private companies in terms of the requirements to cover and protect their employees.56 In fact, the most recent constitutional challenge to the “Grand Bargain” arose out of a municipal workers’ compensation claim. As the Florida Supreme Court held:
We conclude that [section 440.15(2)(a)] of the worker’s [sic] compensation statute is unconstitutional under [A]rticle I, section 21, of the Florida Constitution, as a denial of the right of access to courts, because it deprives an injured worker of disability benefits under these circumstances for an indefinite amount of time—thereby creating a system of redress that no longer functions as a reasonable alternative to tort litigation.57
As a result of this ruling, indemnity benefits in workers’ compensation claims have now, at the very least, been increased from a maximum of 104 weeks to 260 weeks.58 What does this mean for municipalities? In our experience, municipal employees are not transient, short-term workers, but rather pension-driven and motivated to return to work, leaving their claims open and unsettled. Governmental agencies are hard pressed to secure a resignation at the time of a settlement, and thus, these claims normally stay open for several years. With the changes in the law as directed by the Florida Supreme Court (as to indemnity as well as to attorneys’ fees this year), all employers face much greater exposure. Thus, it is even more incumbent upon employers, both public and private, to take and maintain greater control over their Risk
56. See, e.g.,FLA.STAT. § 440.03 (2016) (providing that the Florida workers’ compensation laws apply to “[e]very employer and employee” (emphasis added)). 57. Westphal v. City of St. Petersburg, 194 So. 3d 311, 313 (Fla. 2016) (emphasis added). 58. Id. at 319. This implication is based on the Florida Supreme Court’s ruling in Westphal. The Court reasoned that if it strikes down unconstitutional language in a statute, and there was a predecessor statute, the appropriate remedy is that the predecessor statute is automatically revived unless it too would be unconstitutional. Id. at 327. The Court concluded that the relevant predecessor statute, which provided for a limitation of 260 weeks, satisfied constitutional review and was thus revived. Id. 574 Stetson Law Review [Vol. 46
Management Program from a workers’ compensation standpoint. This means insisting on increased oversight with carriers and servicing agents and their defense counsel, considering self- insurance with a third-party administrator (“TPA”), self-insured with in-house administration, developing aggressive return-to- work programs, complying with a drug-free workplace, and ensuring buy-in from the top down—including City Council, department heads, and field personnel. Much like there are exceptions to sovereign immunity, there are also exceptions to employer immunity, even if the employer has coverage. Section 440.11(b)(1) lists these exceptions:
1. The employer deliberately intended to injure the employee; or
2. The employer engaged in conduct that the employer knew, based on prior similar accidents or on explicit warnings specifically identifying a known danger, was virtually certain to result in injury or death to the employee, and the employee was not aware of the risk because the danger was not apparent and the employer deliberately concealed or misrepresented the danger so as to prevent the employee from exercising informed judgment about whether to perform the work.59
These exceptions can be covered by employers’ liability insurance.60 Florida statutes also allow employers the option of being self-insured.61 An employer may qualify as self-insured
[b]y furnishing satisfactory proof to the Florida Self-Insurers Guaranty Association . . . that it has the financial strength necessary to ensure timely payment of all current and future claims individually and on behalf of its subsidiary and affiliated companies with employees in this state and receiving an authorization from the department [of Financial Services] to pay such compensation directly.62
Insurance is a requirement of workers’ compensation. However, when considering the exceptions to immunity and the
59. FLA.STAT. § 440.11(b)(1). 60. Travelers Indem. Co. v. PCR Inc., 889 So. 2d 779, 796 (Fla. 2004). 61. FLA.STAT. § 440.38(1)(b). 62. Id. 2017] Transitioning to a Stand-Alone Self-Insurance Program 575 loss that could be prevented by a well-maintained risk management program, workers’ compensation claims are a good candidate for a stand-alone self-insurance program.
III. GOING MAJOR MEDICAL: FULLY INSURED TO STAND-ALONE SELF-INSURED
A. Fully Insured vs. Self-Insured
1. What Do the Terms “Fully Insured” and “Stand-Alone Self- Insured” Mean?
When considering why an entity should go from fully insured to self-insured, it is important to understand the difference between the two. In the context of this Article, “fully insured” refers to an entity that has insurance for all risk management claims, including liability and workers’ compensation. “Stand- alone self-insurance” refers to a program that allows an entity to indemnify oneself or one’s interests by maintaining “[a] plan under which a business maintains its own special fund to cover any loss,” and handles the risk management in-house.63 The difference is most important when determining if Florida Statutes permit self-insurance for the risk of loss against which the entity would like to self-insure. The Florida Statutes define insurance as “a contract whereby one undertakes to indemnify another or pay or allow a specified amount or a determinable benefit upon determinable contingencies.”64 The courts have interpreted this definition, stating that insurance “is a mere contract of indemnity against contingent loss,”65 and insurance contracts contain five elements including
[a]n insurable interest[,] . . . [a] risk of loss[,] . . . [a]n assumption of the risk by the insurer[,] . . . [a] general scheme to distribute the loss among the larger group of persons
63. BLACK’S LAW DICTIONARY 875 (Bryan A. Garner ed., 9th ed. West 2009). 64. FLA.STAT. § 624.02. 65. Brock v. Hardie, 154 So. 690, 697 (Fla. 1934); see also First Commerce Realty Investors v. Peninsular Title Ins. Co., 355 So. 2d 510, 511 (Fla. 1st Dist. Ct. App. 1978) (citing Brock, 154 So. 690) (“The dominant characteristic of insurance is the granting of indemnity, or security against, loss for a stipulated consideration.”). 576 Stetson Law Review [Vol. 46
bearing similar risks [and,] . . . [t]he payment of a premium for the assumption of risk.66
Self-insurance, on the other hand, is the converse of insurance. The courts have long discussed what constitutes insurance and whether self-insurance qualifies.
So-called “self- insurance” is not insurance at all but rather is the antithesis of insurance; the essence of an insurance contract is the shifting of the risk of loss from the insured to the insurer, while the essence of self-insurance, a term of colloquial currency rather than of precise legal meaning, is the retention of the risk of loss by the one upon whom it is directly imposed by law or contract.67
The courts have generally upheld this idea, stating, “As an individual self-insurer is not, for most purposes, an ‘insurer’ under the Florida Insurance Code,”68 and “[s]elf-insurance is not considered a ‘policy’ of insurance.”69 The courts have found self- insurance’s requirement of showing financial responsibility is not enough to fit the definition of insurance.70 Because of the differences between fully insured and self- insured, self-insurance may not qualify as an acceptable form of indemnification as required by the Florida Statutes. Therefore, an entity must look to the Florida Statutes to determine if the Legislature has created a provision that allows self-insurance for the type of risk that the entity wants to insure. The Florida Statutes allow governmental entities to self-insure for both
66. Prof’l Lens Plan, Inc. v. Dep’t of Ins., 387 So. 2d 548, 550 (Fla. 1st Dist. Ct. App. 1980) (quoting Guaranteed Warranty Corp., Inc. v. State ex rel. Humphrey, 533 P.2d 87, 90 (Ariz. Ct. App. 1975)). 67. Steven Plitt et al., Couch on Insurance, 3d., § 10:1 n.1 (West 2016) (quoting Fellhauer v. Alhorn, 838 N.E.2d 133, 137 (Ill. App. Ct. 2005)). 68. Gov’t Emps. Co. v. Wilder, 546 So. 2d 12, 13 (Fla. 3d Dist. Ct. App. 1989) (referencing FLA.STAT. § 624.03 (1987)). 69. Lipof v. Fla. Power & Light Co., 558 So. 2d 1067, 1068 (Fla. 4th Dist. Ct. App. 1990), approved sub nom., Lipof v. Fla. Power & Light Co., 596 So. 2d 1005 (Fla. 1992). 70. S.E. Title & Ins. Co. v. Collins, 226 So. 2d 247, 248 (Fla. 4th Dist. Ct. App. 1969). As correctly stated by the appellee, insurance has been judicially defined as follows: ‘Insurance, of ancient origin, involves a contract, whereby, for an adequate consideration, one party undertakes to indemnify another against loss arising from certain specified contingencies or perils. Fundamentally and shortly, it is contractual security against possible anticipated loss. Risk is essential and, equally so, a shifting of its incidence from one to another.’ Id. (internal citations omitted). 2017] Transitioning to a Stand-Alone Self-Insurance Program 577 negligence (for which sovereign immunity has been waived)71 and workers’ compensation.72
2. Pros and Cons of Stand-Alone Self-Insurance
Making the transition from fully insured to stand-alone self- insurance has both benefits and detriments, which are important to know and evaluate before making such a decision. One of the greatest advantages of a stand-alone self-insurance program is the potential for cost savings. A stand-alone self-insurance program allows an entity to no longer pay the high premiums for insurance, and instead invest the money in self-insurance loss reserves that can offset unexpected liabilities.73 There is also a greater amount of cash flow as “[n]o pre-funding of losses is required as in the case of many traditional insurance plans, and no significant capital outlay is needed as in the case of establishing a captive insurance company.”74 Switching to a self-insured program also allows an entity to have more control over the claims coming into the entity. In workers’ compensation, entities are able to implement better work safety standards, which can cut the number of claims.75 In tort liability, entities are able to devise programs for employees to inspect infrastructure to prevent future accidents. In general, entities are able to better control which matters are litigated and which are settled; this saves discovery expenses, outside counsel fees, and other litigation costs. Because of this control in the risk management program of the governmental entity, there is a greater awareness of safety in the workplace and a greater focus on cost control.76 This creates long-term savings while simultaneously creating a safer work environment, city, county, and entity.77 Another collateral benefit includes the increased
71. FLA.STAT. § 768.28(16)(a) (2016). 72. Id. § 440.38(1)(b). 73. DAVID A. NORTH &CATHERINE D. BENNETT,THE ART OF SELF INSURANCE 15–16 (2002), available at https://www.sedgwick.com/resources/Documents/Publications/AOSS .pdf. 74. Id. at 16. 75. The idea is that under a self-insured program, there is a “heightened sense of awareness.” Id. at 18. The company is incentivized to adhere to safer work practices and respond promptly to any claims because the company is spending its own money, as opposed to the insurance company’s money. Id. 76. Id. 77. Id. 578 Stetson Law Review [Vol. 46 collaboration between the city or county manager (including the various governmental departments reporting thereto) and the local government’s attorney’s office—both sharing a common goal of saving money for the taxpayers while increasing efficiency. Unfortunately, if switching to a stand-alone self-insurance program only reaped benefits, there would be no need for this Article. While there are many benefits to switching to a self- insurance program, there are also several drawbacks. One such drawback is the sharp increase in administrative responsibilities. “[S]elf-insureds are responsible for meeting all state requirements including maintenance and submission of requested loss data and financial information, completion of state filings and forms, and timely payment of state taxes and assessments.”78 Additionally, a stand-alone self-insured entity requires more staff and responsibilities for implementing a risk management program. “These include risk management information systems and services, safety and loss control, claims handling and investigation, check issuance, financial and accounting, actuarial, legal, and other management services deemed appropriate.”79 Consequently, more personnel may be needed—e.g., qualified claims adjusters, legal counsel, safety engineers, and loss control consultants.80 This can cut into some of the cost savings associated with self-insurance initially, but the long-term savings benefit will still be a positive aspect of switching to a stand-alone self-insurance program. Perhaps the single greatest detriment of making the change to self-insurance is the potential for an unanticipated catastrophic loss or accident. By self-funding losses, a major event can quickly deplete the reserves.81 “By nature, self- insurance is a program for which budgeting is difficult, but there are methods for addressing this problem.”82 However, methods such as a well-structured excess insurance program can insulate the detriment.83 Just be sure to consider the legal implications of contracting for an excess insurance program.84
78. Id. at 20. 79. Id. at 55. 80. Id. 81. Id. at 21. 82. Id. at 22. 83. Id. at 21. 84. See infra Part III(B)(2) (explaining the legal implications of self-insurance). 2017] Transitioning to a Stand-Alone Self-Insurance Program 579
B. Factors to Consider When Switching to Self-Insurance
1. Size and Ability to Fund Loss Reserves
One of the factors to consider when determining whether to go from fully insured to self-insured is the size of the entity. This is important for determining if the entity has the capacity to fund and manage a self-insurance program. One way to analyze size is by comparing the size of the entity to other self-insured entities.85 Entities that have a fully insured program pay premiums based on the size of the entity operations,86 including population, geographical size, number of employees, and the amount of real and personal property owned. It is rather simple: the higher the numbers, the higher the premiums for insurance. Comparing the size of the entity with other entities that have moved from a fully insured to a self-insurance program can provide an estimate on the cost savings or losses that are associated with shifting to a self-insurance program.87 Be sure to network with other governmental agencies of comparable size that have made the switch and/or hire a qualified risk-management consultant to get an accurate estimate. This comparison can help determine whether implementing a stand-alone self-insurance program or looking for a self-insurance fund or a mutual fund with other entities to fund the program would be more appropriate. The size of the entity’s operations also helps determine the entity’s ability to fund losses. The Florida Statutes require entities that self-insure workers’ compensation to
secure the payment of compensation under this chapter ... [b]y furnishing satisfactory proof to the Florida Self-Insurers Guaranty Association, Incorporated, created in [section] 440.385, that it has the financial strength necessary to ensure timely payment of all current and future claims individually and on behalf of its subsidiary and affiliated companies with employees in this state and receiving an authorization from the department to pay such compensation directly.88
85. NORTH &BENNETT, supra note 73, at 34. 86. Id. at 45. 87. E.g., Memorandum from Ben Few, III, CEO, Ben Few & Co., Inc., to Andrew P. Lannon, City Attorney, City of Palm Bay, Florida, Risk Exposure and Financing Analysis, 24 (June 5, 2015) (on file with Stetson Law Review). 88. FLA.STAT. § 440.38 (2016). 580 Stetson Law Review [Vol. 46
In workers’ compensation, the Florida Self-Insurers Guaranty Association may require the entity to place a security deposit, which the entity must provide before being authorized to self-insure.89 It is very important to confirm adequate funding for losses.
2. Legal Implications of Self-Insurance
When considering whether to switch from fully insured to self-insured, it is not only important to consider whether the law permits self-insurance but also what the legal implications may be for each option. Self-insuring for negligence liability, for which sovereign immunity has been waived, may have different implications than self-insuring for workers’ compensation. This may help determine whether to be self-insured for all types of liability, stay fully insured, or be insured for one type of liability and self-insured for another. Which option is best depends on the legal implications. When considering self-insurance for tort liability, it is important to consider purchasing excess liability. Section 768.28(5) states that
a judgment or judgments may be claimed and rendered in excess of these amounts and may be settled and paid pursuant to this act up to $200,000 or $300,000, as the case may be; and that portion of the judgment that exceeds these amounts may be reported to the Legislature, but may be paid in part or in whole only by further act of the Legislature.90
This allows the plaintiff to ask the Legislature for a claims bill—if the Legislature agrees, the governmental entity will have to pay the excess. “The waiver of sovereign immunity statute expressly allows a claimant to seek a claims bill from the Legislature to pay all or any portion of the judgment in excess of the statutory caps.”91 This can be devastating to the funds of an entity that is self-insured with no excess carrier.
89. See id. § 440.38 (describing the security deposit conditions that may be required before one is allowed to self-insure). 90. Id. § 768.28(5). 91. 6 THOMAS D. SAWAYA,FLA.PRAC., PERSONAL INJURY &WRONGFUL DEATH ACTIONS WITH WRONGFUL DEATH ACTIONS § 9:11 (ed. 2016–2017). 2017] Transitioning to a Stand-Alone Self-Insurance Program 581
However, there has been some caselaw that may prevent an entity from contracting for excess coverage. In the past, the Florida Supreme Court and the United States Court of Appeals for the Eleventh Circuit have held that governmental entities waive sovereign immunity up to the amount of excess coverage.92 The Florida Supreme Court specifically carved out an exception for entities participating in self-insurance trust funds, relying on the differences in definition discussed above.93 The court held that if self-insurance excess coverage is not through a contract for insurance with an insurer, then the entity does not waive sovereign immunity up to the amount of coverage, as self- insurance, in and of itself, is not insurance.94 Some have argued that the holding “merely allows the injured party to collect a judgment in excess of the statutory limits up to the limits of the insurance coverage after liability has been established under the waiver of sovereign immunity statute,” which “may be exceeded by the purchase of liability insurance.”95 They explain that “[i]t is only the insurer who may be obligated to pay any amount over the statutory limits pursuant to its contract of insurance.”96 However, there is no caselaw on point to determine whether an
92. E.g., Avallone v. Bd. of Cnty. Com’rs of Citrus Cnty., 493 So. 2d 1002, 1004 (Fla. 1986). Political subdivisions are authorized to spend public money for the purchase of liability insurance. However, if such insurance is purchased and is within the purview of the statute, the contract shall prohibit the assertion of sovereign immunity to the extent of the coverage, even if it is otherwise a valid defense. Id. See also Hattaway v. McMillian, 903 F.2d 1440, 1454–55 (11th Cir. 1990). When the Sheriffs’ Fund purchases insurance it does so with taxpayer dollars, and therefore, the Avallone considerations are applicable. In effect, when the Sheriffs’ Fund purchases insurance, the Sheriffs are purchasing insurance . . . [and] the provisions of section 768.28(13) at issue . . . only authorize a self- insurance pool to pay claims “which [the agency] may be liable to pay pursuant” to $100,000 waiver of sovereign immunity in section 768.28. Therefore, because the insurance purchased by the Sheriffs’ Fund only covers liabilities in excess of the section 768.28 waiver, the authority to purchase this insurance cannot come from section 768.28(13). Id. 93. See supra Part II(A)(1) (discussing the different definitions). 94. Hillsborough Cnty. Hosp. & Welfare Bd. v. Taylor, 546 So. 2d 1055, 1058 (Fla. 1989) (holding a waiver only occurs “when there was (1) a contract for insurance supported by consideration (2) with an insurer”; and a “self-insurance trust fund established in this insurance did not result in a waiver of sovereign immunity because it was not a contract with an insurer”). 95. E.g., SAWAYA, supra note 91. 96. Id. 582 Stetson Law Review [Vol. 46 entity with a stand-alone self-insurance program could also be liable. The Florida Legislature also took action, amending section 768.28(5), in 1987, to include “the state or agency or subdivision thereof shall not be deemed to have waived any defense of sovereign immunity or to have increased the limits of its liability as a result of its obtaining insurance coverage for tortious acts in excess of the $100,000 or $200,000 waiver provided above.”97 While the Legislature’s intent seems to provide that no excess coverage should cause an entity to waive immunity up to the amount in excess, the caselaw is contradictory. Until the caselaw is overturned, or the issue of waiving immunity when a governmental entity self-insures and also purchases excess liability insurance is brought to and decided by the Florida Supreme Court, an entity needs to be aware of the possibility of waiving the statutory caps if contracting for excess coverage.
3. History of Claims and Exposure
While premiums are calculated based on the size of the entity’s operations, they are also based on “the types of exposure it represents.”98 Therefore, it is important to look at the entity’s history of claims in the past fiscal year. It is also important to analyze the different types of claims separately. For example, compile the history of automobile claims in one section and third- party property damage in another. This can help determine what type of excess insurance may be needed, as well as any need for outside administrators to handle claims. It is especially important to look at the workers’ compensation claims history: “Since there is no sovereign immunity protection available to a public entity for workplace injury claims brought about in the course of employment,” this makes workers’ compensation “one of the most volatile exposures that the [entity] faces.”99 When analyzing workers’ compensation, it is also important to look at the payroll classifications to determine the exposure. Once the history of claims has been analyzed, an estimate of the exposure can be made. One way to analyze exposure is to look
97. Tort Liability of Governmental Entities, 1987 FLA.SESS.LAW SERV. 87–134 (West) (superseded 2010) (changing statutory caps to $200,000 and $300,000 respectively). 98. NORTH &BENNETT, supra note 73, at 45. 99. Memorandum from Ben Few, III, supra note 87, at 4. 2017] Transitioning to a Stand-Alone Self-Insurance Program 583 at whether any statutory caps apply.100 For this reason, it is important to gather the history of each claim separately. For example, as discussed in the history Part of this Article, there is a statutory cap on negligence claims. Unless the plaintiff brings a claims bill, which should be taken into consideration, the damages the plaintiff can collect are limited to $200,000 per claim or $300,000 per incident.101 It is also important to look at the payment of large claims. For example, the payment of large workers’ compensation claims is spread over time,102 while negligence claims are generally paid in full once a settlement or final judgment is received. This affects the cash flow of the entity and the ability to self-fund a self-insurance program.103 The determination of the entity’s exposure will allow the entity to compare its exposure to others who have transitioned to stand-alone self-insurance programs to determine if the move would be more cost effective and the right choice for the entity.
4. Ability to Handle In-House or Supervise Third-Party Administrators
Determining who will handle the claims is also an important element when deciding whether to stay fully insured or become self-insured. Some entities will have the means to administer their own claims; if the entity chooses to self-insure workers’ compensation claims, the Division of Workers’ Compensation must certify that the entity’s employees are capable of handling claims.104 To administer the claims in-house, staff is needed with
100. Christine Fuge, The Workers Compensation Self-Insurance Decision, IRMI (Aug. 2001), https://www.irmi.com/articles/expert-commentary/the-workers-compensation-self- insurance-decision. 101. FLA. STAT. § 768.28(5) (2016). Neither the state nor its agencies or subdivisions shall be liable to pay a claim or a judgment by any one person which exceeds the sum of $200,000 or any claim or judgment, or portions thereof, which, when totaled with all other claims or judgments paid by the state or its agencies or subdivisions arising out of the same incident or occurrence, exceeds the sum of $300,000. Id. 102. Fuge, supra note 100. 103. Id. 104. JAMES N. MCCONNAUGHHAY, 2015 WORKERS’COMPENSATION DESK MANUAL 166– 67 (2015). 584 Stetson Law Review [Vol. 46 medical knowledge and actuarial experience.105 “Like a traditional insurance program, a self-insurance program requires risk management information systems and services, safety and loss control, claims handling and investigation, financial and accounting, actuarial, legal, and other desired services.”106 However, not all entities have the in-house infrastructure of personnel to handle all aspects of a claim. As an alternative, an entity with a self-insurance program can choose to hire TPAs to handle the claims.107 TPAs can perform many of the same functions as an insurance company—such as the medical and actuarial analysis necessary for handling claims—and insurance companies make up a large portion of available TPAs.108 The entity should first determine which services it can handle in- house and which would be better handled by a TPA.109 Then it is important to search for reputable TPAs and ensure that the contractual relationship is fully documented.110
5. Effective Functionality of Risk Management Program
An effective risk management program can make the savings of transitioning to a self-insurance program much larger. This is because the costs of a self-insurance program are controlled by losses.111 Therefore, having a well-functioning risk management, loss control, and safety program in place is an important factor in the decision to transition to a self-insurance program. A successful self-insurance program will save costs associated with medical services, lost-time wages, legal fees, reduced productivity caused by time off and training of replacements, and time necessary for handling more claims, among other issues.112 A successful program will also have adequate training and education, full management support, and employee input and suggestions.113 This program should be in place at the time of the
105. Fuge, supra note 100. 106. NORTH &BENNETT, supra note 73, at 58. 107. MCCONNAUGHHAY, supra note 104, at 167. 108. Fuge, supra note 100. 109. Id. 110. MCCONNAUGHHAY, supra note 104, at 167. 111. NORTH &BENNETT, supra note 73, at 69. 112. Id. at 69–70. 113. Id. at 69–73. 2017] Transitioning to a Stand-Alone Self-Insurance Program 585 transition, or there should be a comprehensive plan outlined to implement a program during the transition. A risk management, loss control, and safety program is also important, as parts of Florida law require a well-functioning program before authorizing the entity to self-insure.114 “As a condition to authorization to self-insure, the employer shall provide proof that the employer has provided for competent personnel with whom to deliver benefits and to provide a safe working environment.”115 Having a safe working environment helps to save costs, qualify the entity to self-insure, and protect the employees.
C. Case Study: City of Palm Bay
The City of Palm Bay City Attorney’s Office researched ways to improve the safety and quality of its workplace, while at the same time saving money for the city. The City Attorney, Andrew Lannon, and Deputy City Attorney, Peter Sweeney, contracted with a consultant firm to provide a comprehensive review and analysis of the City’s current risk management program and to determine if the City was a financially and structurally qualified candidate for a stand-alone self-insurance program.116 The consultant firm performed site inspections, interviewed the City’s staff, reviewed insurance documents, immunity statutes, City policies, procedures and contracts, in-house risk management and safety committee processes, as well as loss exposures and previous losses.117 The company looked at the City’s workers’ compensation coverage, property coverage, auto physical damage, general liability and law enforcement liability, public official liability, automobile liability, and other miscellaneous coverage.118 The report also analyzed the exposure to loss by reviewing past claim data.119 It compared the benefits of a fully insured program to the benefits of a stand-alone self-
114. FLA.STAT. § 440.38 (2016). 115. Id. 116. Memorandum from Ben Few, III, supra note 87, at Executive Summary. 117. Id. 118. Id. 119. Id. at 3–12. 586 Stetson Law Review [Vol. 46 insurance program,120 and it outlined a timeline of implementation for a stand-alone self-insurance program.121 The consultants recommended some changes to the safety committee and risk management structure—explaining the need for a safety committee for each department, more training available for employees, and more procedures put in place.122 The consultants ultimately recommended the City consider a stand- alone self-insurance program for workers’ compensation and automobile liability, and predicted the transition would result in a reduction of the overall costs associated with the City’s risk management program.123 Because of the recommendations of the consultant and the direction from City Council, the City of Palm Bay transitioned to a stand-alone self-insurance program for workers’ compensation, general liability, and automobile liability. Since 2013, the City has saved $2,929,248.16. The City implemented a Safety Committee comprised of at least one member from each department in the City that meets monthly. The City is also working on a program to give employees access to online safety training modules to help create a safer work environment. The City uses a TPA to handle intake and initial claims management of all workers’ compensation claims. The strict statutory requirements for initial reporting of workers’ compensation claims dictated the engagement of a TPA instead of handling this aspect of the program in-house. Although there is a cost to contracting with a TPA and a consultant, the City ultimately concluded that there were cost savings in having the TPA handle this aspect of the program. As for all other claims, they are directly reported to the in- house risk management department. In the event that liability claims are reported directly to the TPA inside of the internal risk management department, the TPA will perform the initial intake and evaluation of the claim. Subsequently, the TPA will contact the City’s risk management department and provide the information, as well as provide support and suggested direction on the handling of the claim, which can be particularly useful in the unusual or unique claim situation.
120. Id. at 21–27. 121. Id. at 27–28. 122. Id. at 2, 13. 123. Id. at 29. 2017] Transitioning to a Stand-Alone Self-Insurance Program 587
Continuous monitoring and minor modifications of the program will continue throughout the first year and into the near future. In doing so, it will enable the City to objectively review the differences from the prior insurance and risk management program to the current stand-alone self-insurance program.
IV. WHERE DO WE GO FROM HERE?
After deciding to make the switch from fully insured to self- insured, the entity needs to determine what type of program fits best for the needs of the entity. There are many options depending on the evaluation of the several factors, such as using a TPA, determining what type of excess carrier, fully self-insured, fully insured, self-insurance fund/mutual fund, or a hybrid, as outlined previously in this Article. There are many companies with the experience and trained staff to help make the decision. The insurance companies can help perform a review of the entity to determine if self-insurance is right and which services would be best: in-house or with an outside contractor. The insurance companies can also help to set up an excess carrier insurance program. The consultants at the insurance company can compare financing plans, efficiency based on the entity’s operations, and other issues to help understand which will be the most practical choice for the entity. It is very important to have an analysis of the entity completed to structure a detailed plan on how to transition to a stand-alone self-insurance program.
IV. CONCLUSION
In today’s economy, it is critical to explore new cost-effective ways of managing a governmental entity. If the entity’s insurance premiums are rising, but the coverage is shrinking, it may be beneficial to transition to a stand-alone self-insurance program. It allows greater control over expected losses and expenses. It allows flexibility in the structure of the insurance program by allowing the entity to choose which area of liability to insure or self-fund. It allows the choice of whether to handle claims in- house or hire a TPA. And it allows the entity to have loss reserves to invest, instead of paying it all up front. While there are many benefits associated with transitioning to a stand-alone self-insurance program, there are disadvantages 588 Stetson Law Review [Vol. 46 as well. It requires more training of staff to administer claims. It requires a larger staff to handle the increase in administrative responsibilities. Most importantly, it could be devastating if a catastrophic loss occurs unexpectedly. The choice is up to your entity. However, if you are looking for a new way to save money, consider a stand-alone self- insurance program. FROM RUMBLINGS TO REALITY: ONE CITY’S STORY OF ETHICS REFORM
Julie Meadows-Keefe*
I. INTRODUCTION
We will never bring disgrace on this our City by an act of dishonesty or cowardice. We will fight for the ideals and Sacred Things of the City both alone and with many. We will revere and obey the City’s laws, and will do our best to incite a like reverence and respect in those above us who are prone to annul them or set them at naught. We will strive unceasingly to quicken the public’s sense of civic duty. Thus, in all these ways, we will transmit this City not only, not less, but greater and more beautiful than it was transmitted to us.1
Thousands of years after the authorship of the Athenian Oath, this Article tells one City’s story of the evolution of its ethics program and reflects my experience as the first Ethics Officer in the City of Tallahassee.2 It provides both a history of Tallahassee’s Independent Ethics Board3 and a framework of sorts for other local governments to consider as they enhance or develop their own ethics programs.
* © 2017, Julie Meadows-Keefe. All rights reserved. Independent Ethics Officer, City of Tallahassee. J.D., Florida State University, 1993; B.A., Stetson University, 1990. Phi Beta Kappa; Florida State Law Review; Florida State Moot Court Team. The Author would like to thank the “original six” Independent Ethics Board Members, Chair Lila Jaber (Stetson, B.A. and J.D.), co-chair Richard Herring, Cecil Davis Funmi Ojetayo, Tom Friedman, and Renee McNeill for actively helping to build this Board from the ground up. The Author would like to dedicate this Article to retired Stetson faculty member Dr. T. Wayne Bailey, who influenced her and so many others to pursue careers in law and government. 1. The ATHENIAN OATH,NAT’L LEAGUE OF CITIES, http://www.nlc.org/build-skills-and- networks/resources/cities-101/city-factoids/the-athenian-oath (last visited Apr. 18, 2017). 2. Taking the Lead on Ethics,CITY OF TALLAHASSEE (Sept. 30, 2014), https://www .talgov.com/main/news/4393.aspx. My perspective on being the Ethics Officer provided fodder for a talk, which I gave at a TEDx event at Florida State University. Julie Meadows-Keefe, Exiting the Echo Chamber to Enter Civic Engagement (TEDx Talk Video June 29, 2016), https://www.youtube.com/watch?v=qzDwygnrDsc. 3. Ethics Board: Background Information,CITY OF TALLAHASSEE, available at https://www.talgov.com/main/ethics.aspx (last visited Apr. 18, 2017). 590 Stetson Law Review [Vol. 46
The media, polls, and widely expressed citizen attitudes would seem to indicate that, overall, people lack high levels of trust in government.4 However, Florida’s Constitution declares that “[a] public office is a public trust.”5 In 1968, Florida was one of the first states to adopt an ethics code. It went on to establish the Florida Commission on Ethics in 1976.6 The Florida Ethics Code contains standards of ethical conduct and disclosures applicable to all public officers, employees, candidates, lobbyists, and others involved with Florida’s state and local government. The Code, however, does not apply to judges.7 The “ethics law[s] rest[] upon a triad of provisions: an understandable and comprehensive Code, . . . sensible disclosure, and a reasonable enforcement mechanism.”8 Issues to grapple
4. See, e.g., Beyond Distrust: How Americans View Their Government,PEW RES. CENTER (Nov. 23, 2015), http://www.people-press.org/2015/11/23/1-trust-in-government- 1958-2015/ (providing a survey sample of citizens’ concerns regarding the ability of the government to solve important national problems); but see Justin McCarthy, Americans Still Trust Local Government More Than State,GALLUP (Sep. 22, 2014), http://www.gallup.com/poll/176846/americans-trust-local-government-state.aspx (indicating that citizens tend to have more trust in local government than in national government). 5. FLA.CONST. art. II, § 8. See also History,FLA.COMMISSION ON ETHICS, http://www.ethics.state.fl.us/AboutUs/History.aspx (last visited Apr. 18, 2017) (describing the implementation of Florida’s ethical standards for public officials in order to protect the public trust against abuses); Guide to the Sunshine Amendment and Code of Ethics for Public Officers and Employees,FLA COMMISSION ON ETHICS 1 (2016), http://www.ethics .state.fl.us/Documents/Publications/GuideBookletInternet.pdf (describing the purpose of the Code of Ethics as “to ensure that public officials conduct themselves independently and impartially, not using their offices for private gain other than compensation provided by law”). 6. FLA.COMMISSION ON ETHICS, supra note 5, at 1. 7. FLA. STAT. § 112.311(5) (2016). 8. Mark Davies, Keeping the Faith: A Model Local Ethics Law––Content and Commentary, 21 FORDHAM URB. L.J. 61, 68 (1993) [hereinafter Keeping the Faith]. See also Wyzykowski v. Rizas, 626 A.2d 406, 414 (N.J. 1993) (citing the “Pane Principles,” which identify the various circumstances requiring disqualification for ethical challenge). These include: (1) “Direct pecuniary interests,” when an official votes on a matter benefiting the official’s own property or affording a direct financial gain; (2) “Indirect pecuniary interests,” when an official votes on a matter that financially benefits one closely tied to the official, such as an employer, or family member; (3) “Direct personal interest,” when an official votes on a matter that benefits a blood relative or close friend in a non-financial way[;] . . . and (4) “Indirect Personal Interest,” when an official votes on a matter in which an individual’s judgment may be affected because of membership in some organization and a desire to help that organization further its policies. Id. (quoting Michael A. Pane, Conflict of Interest: Sometimes a Confusing Maze, Part II, New Jersey Municipalities at 8–9 (Mar. 1980)). 2017] One City's Story of Ethics Reform 591 with in government ethics include using public office for private gain; recusal, gifts; conflicts of interest; disclosure; political solicitation; improper influence of officials by private persons; outside employment; and revolving doors, which speaks to leaving a public-sector job and going into the private sector utilizing connections made in public service.9 “Appearances and public perception play an enormously important role in the effectiveness of officials and in the well-being of their communities.”10 Adding complexity to this situation is that conduct, which presents poor optics to the public, does not always violate any federal, state, or local ethics law––it simply fails to pass “the smell test.”11 As one court noted, “Whether conspicuously or not, the co-mingling of business and legislative interests to date has resulted in a Darwinian hybrid where it is difficult to discern where the legislative responsibilities separate from . . . business responsibilities.”12 The public legitimately expects public officials and employees to be impartial, responsible, honest, trustworthy, and independent of outside influence.13 Indeed, most public servants
9. Keeping the Faith, supra note 8, at 69–71; see also Vincent R. Johnson, Ethics in Government at the Local Level, 36 SETON HALL L. REV. 715, 728 (2006) (identifying a similar list of concerns to be addressed in an effective local government ethics code); Deborah Markowitz, A Crisis in Confidence: Municipal Officials Under Fire, 16 VT. L. REV. 579, 597 (1992) (listing a similar group of ethical concerns faced by municipal officials); Robert Wechsler, Revolving Door Provisions in Local Government Ethics Codes, CITYETHICS.ORG (Mar. 23, 2010), http://www.cityethics.org/content/revolving-door- provisions-local-government-ethics-codes (discussing specific ethical issues involved in allowing public officials to move between the public and private sector). 10. Keeping the Faith, supra note 8, at 66; see also John M. Carbone, Ethics: More Than Not Being Indicted, N.J. LAW., December 2006, at 29 (stating that a public official, independently of his good intentions, will be judged by his acts). 11. See, e.g., Patricia E. Salkin, Ethics in Land Use: Using Ethical Allegations as a Sword Rather as a Shield, 33 REAL EST. L.J. 100, 100–01 (2004) [hereinafter Ethics in Land Use] (discussing courts’ findings of ethical misconduct in land use cases in which there has not been a particular violation of state or federal law); Patricia E. Salkin, Ethics Allegations in Land Use Continue to Fill the Court Dockets, 26 ZONING &PLAN. L. REP. 1, 1–3, 6–7 (Apr. 2003) (providing a sample of land use cases, some of which were decided by the courts upon considerations of appearance of improper ethical conduct); Patricia E. Salkin, Municipal Ethics Remain A Hot Topic in Litigation: A 1999 Survey of Issues in Ethics for Municipal Lawyers, 14 BYU J. PUB. L. 209, 210 (2000) (discussing legal ethics considerations for municipal lawyers, including the concept of “community standards,” which have the potential to make conduct unacceptable behavior). 12. Ethics in Land Use, supra note 11, at 107. 13. “‘Procedural fairness’ is the ethical responsibility of municipal officials both to conduct proceedings and to fulfill their other duties with openness and objectivity and to treat all that come before them equally.” Markowitz, supra note 9, at 603–04. It encompasses such things as “conflict[s] of interest . . . and discrimination.” Id. at 604. 592 Stetson Law Review [Vol. 46 display these characteristics.14 “However, . . . the very structure of some local government functions cause ethical conflicts for elected and appointed officials which exacerbates the difficulty of conducting assigned responsibilities [openly] and [equitably].”15 “[F]requent incidents of unethical behavior by municipal officials have a clear deleterious effect on the public’s trust in local government.”16 There is a strong argument that ethics in government should start at the local level because actions of local officials most directly impact citizens.17 Additionally, many elected officials begin their careers at the local government level and if ethics are inculcated at the beginning of a career, chances increase that as the individual moves to a higher office, the high ethical standards will travel with them. Local governments must also strike a delicate balance between ensuring that ethical standards are followed, while simultaneously avoiding overly burdensome requirements that would cause hardship and possibly discourage good people from entering public service.18 Often, county or city ethics initiatives spring up after major corruption scandals.19 For example, in 2009, Palm Beach County was named the “Capital of Florida Corruption” by Time magazine.20 However, there are numerous other instances of
14. Mark Davies, Governmental Ethics Laws: Myths and Mythos, 40 N.Y.L. SCH. L. REV. 177, 178 (1995) [hereinafter Governmental Ethics Laws]; see also Patricia E. Salkin, Failure to Articulate Clear Ethics Rules and Standards at the Local Level Continues to Haunt Local Land Use Decision Makers, 43 URB.LAW. 757, 773 (2011) (recognizing that public servants for the most part act honestly and ethically, and discussing the need for clear ethical rules in land use to encourage this conduct). 15. Douglas Larson, A Model Ethical Code for Appointed Municipal Officials, 9 HAMLINE J. PUB. L. & POL’Y 395, 395 (1989). 16. Markowitz, supra note 9, at 605. 17. Johnson, supra note 9, at 716–17. 18. Id. at 752–53. See FLA.STAT. § 112.311(2) (2016) (establishing that conflict of interest rules should be designed in a way not to unnecessarily prevent the hiring of those best qualified to serve as public servants); Governmental Ethics Laws, supra note 14, at 181 (“[E]thics regulations must encourage, not discourage, good citizens from serving in government. If they do not do that, they have failed and belong in the rubbish heap.”). 19. See Michael Josephson, The Peculiar Concept of Ethics Laws,CITY OF JACKSONVILLE, http://www.coj.net/departments/ethics-office/docs/the-peculiar-concept-of- ethics-laws.aspx (last visited Apr. 18, 2017) (“Historically, legislative bodies have been reactive rather than proactive, doing only what they absolutely must. Thus, existing laws often are a hodgepodge of regulations designed to prevent reoccurrence of specific past improprieties. That’s a big part of the problem.”). 20. Hector Florin, Palm Beach: The New Capital of Florida Corruption,TIME (Jan. 10, 2009), http://content.time.com/time/nation/article/0,8599,1870853,00.html. See also Opinion Staff, Does Palm Beach Still Deserve Moniker, ‘Corruption County’?,PALM BEACH POST, available at http://opinionzone.blog.palmbeachpost.com/2014/11/25/does-palm- beach-still-deserve-moniker-corruption-county/ (last updated Nov. 25, 2014) (discussing 2017] One City's Story of Ethics Reform 593 corruption in Florida and other states dating back decades.21 To address local concerns, counties and municipalities are permitted under the Florida Ethics Code to enact local ethics codes or ordinances that are stricter than the Florida Ethics Code.22 Twelve counties have adopted ethics codes that are stricter than the state’s ethics code.23 The focus of the stricter codes and ordinances tends to be in the area of voting conflicts, gifts, and financial disclosures.24 Generally, county ethics boards come first and fold into their coverage participating municipalities. Tallahassee did not follow that pattern––there is no county ethics board covering or addressing Leon County where Tallahassee is located. So how did Tallahassee’s rather unique structure come to pass? Part II of this Article sets the scene and describes how citizen perception of the ethical climate in Tallahassee came to a tipping point, which led to the formation of an Ethics Advisory Panel. Part III discusses the activities of the Ethics Advisory Panel and its findings. Part IV sets forth how the City Commission responded to the report. Part V relates to continued citizen engagement and
some of the problems with the structure of the Palm Beach County Commission created to combat corruption in the City); OFFICE OF PROGRAM POLICY ANALYSIS &GOVERNMENT ACCOUNTABILITY,PALM BEACH COUNTY COMMISSION ON ETHICS WAS CREATED USING SEVERAL BEST PRACTICES;SOME PROCESSES COULD BE ENHANCED,REP.NO. 13–10, at 1 (Fla. 2013) (providing a review of the Palm Beach County Commission on Ethics, which emerged out of recommendations from a May 2009 grand jury created to propose changes to provide oversight, transparency, and accountability for county and municipal government); Comm’n on Ethics E-Book,PALM BEACH CNTY.COMMISSION ON ETHICS, www.palmbeachcountyethics.com/pdf/Ethics_eBook.pdf. (last visited Apr. 18, 2017) (providing an overview of the Palm Beach County Commission ethics program). 21. See, e.g., Selwyn Raab, Inspectors Seized in Wide Extortion from Restaurants, N.Y. TIMES, Mar. 25, 1988, at A1 (reporting that “[t]wenty-eight . . . health inspectors . . . were charged . . . with extorting hundreds of thousands of dollars from restaurants by threatening to close them or to cite them for sanitation violations”); see also Markowitz, supra note 9, at 579–80 (citing different examples of unethical conduct by state officials around the country). 22. See FLA.STAT. § 112.326 (2016) (“Nothing in this act shall prohibit the governing body of any political subdivision, . . . from imposing upon its own officers and employees additional or more stringent standards of conduct and disclosure requirements than those specified in this part . . . .”). 23. Tough Choices: Florida Counties Bridge the Ethical Policy Gap,LEROY COLLINS INST. 1, 2 (Nov. 2012), http://www.integrityflorida.org/wp-content/uploads/2013/03/ Integrity_Florida_and_LeRoy-Collins-Institute-Tough-Choices-Florida-Counties-Bridge- the-Ethics-Policy-Gap-11.29.12.pdf. These counties include Broward, Clay, Duval, Escambia, Indian River, Lake, Miami-Dade, Orange, Palm Beach, Sarasota, Seminole, and St. Johns. Id. 24. Id. at 2, 5, 9–10, 13–14. 594 Stetson Law Review [Vol. 46 activism on ethics reform, which ultimately led to the formation and activities of Tallahassee’s Independent Ethics Board. Part VI serves to give an overview of the Independent Ethics Board’s progress during its first eighteen months. Finally, Part VII covers lessons learned and recommendations for other municipalities seeking to implement or enhance their ethics compliance programs.
II. BACKDROP FOR CHANGE: CLIMATE AND CONTROVERSIAL VOTES
Tallahassee internally audited its ethics program in 2008 and determined that “the City’s ethics program indicated that the program includes many of the components recommended for a strong ethics and compliance program.”25 The audit also found that the program was working effectively to encourage ethical behavior.26 Suggestions included:
● Centralizing resources and directing employees where to obtain ethics assistance; ● Asking employees during department meetings to share ethical dilemmas and how they handled them; ● Cultivating an atmosphere where violation reporting is encouraged and retaliation for reporting is discouraged; ● Improving identification and notification of those required to file ethics disclosure forms.27
Of most concern was the lack of a central point of contact on ethics matters. Employees generally relied on the City Attorney’s office or supervisors to guide them.28 However, this structure had arguably served the City well. From 2002–2012, eleven complaints against City officials had been filed with the Florida
25. Sam M. McCall, Audit of the City’s Ethics Program, Audit Report # 0912,CITY OF TALLAHASSEE, intro page (Apr. 9, 2009), https://www.talgov.com/Uploads/Public/ Documents/auditing/pdf/0912-ethics.pdf. 26. Id. at 1. The City of Tallahassee had a comprehensive ethics and character course for employees. Employees are required to think beyond what the law requires by keeping things like discretion, justice, alertness, tolerance, boldness, responsibility, cautiousness, and wisdom. 27. Id. at intro page. 28. Id. at 37–38. 2017] One City's Story of Ethics Reform 595
Commission on Ethics.29 In no case was it found that a violation was committed by an elected official. Additionally, no elected official in Tallahassee has ever been arrested for a criminal act.30 Against this rather benign history, what tipped the balance? Mayor John Marks was first elected in 2003 and served three terms––making him Tallahassee’s longest serving mayor.31 The incumbent Democratic Mayor was challenged in 2010 by a Republican opponent.32 Amid the economic downturn in Tallahassee, the election produced acrimony and increased scrutiny of elected officials.33 The Mayor won a third term in August 2010.34 However, acrimony continued. City Hall critics then focused on the past, 2007 and 2008, when Mayor Marks voted four times on matters involving a company represented by his law firm.35 Then, on September 15, 2010, Mayor Marks voted to approve a $1.2 million federal grant involving the City and grant partners Alliance for Digital Equality (“ADE”)36 and the Go Beyond Foundation, while he was a paid member of ADE’s board of advisors.37 Some citizens were critical of these votes and actions.38 One particularly vocal citizen, who unsuccessfully ran for City Commission, habitually came to City Commission meetings and
29. Ethics Advisory Panel, Regular Meeting Minutes, at 5 (May 30, 2013), available at http://www.talgov.com/Uploads/Public/Documents/treasurer/pdf/eap/130530-eap-min.pdf. 30. Id. 31. City of Tallahassee, Celebration Planned to Say Farewell and Thank You to Mayor John Marks,TALLAHASSEE DEMOCRAT (Oct. 18, 2014, 9:22 PM), http://www.tallahassee .com/story/life/chronicle/2014/10/18/celebration-planned-say-farewell-thank-mayor-john- marks/17527875/. 32. Matthew Isbell, The Spectacular Self-Destruction of Steve Stewart, MCI MAPS (Sep. 13, 2014), http://mcimaps.com/the-spectacular-self-destruction-of-steve-stewart/. 33. Id. 34. Liza Park, John Marks Captures Third Term as Tallahassee Mayor, WCTV (Aug. 25, 2010, 7:16 AM), http://www.wctv.tv/home/headlines/101446819.html?site=mobile. 35. Jeff Burlew, Settlement Unlikely as Court Date Nears in Mayor Marks Case, TALLAHASSEE DEMOCRAT:STAFF BLOGS (Sep. 12, 2012), http://blogs.tallahassee.com/ settlement-unlikely-as-mayor-marks-court-date-nears/; see also Lanetra Bennett, More Ethics Complaints Filed Against Tallahassee Mayor, WCTV (May 24, 2011, 5:54 PM), http://www.wctv.tv/home/headlines/Two_Ethics_Complaints_Filed_Against_Tallahassee_ Mayor_120677539.html. 36. James Taylor, Tallahassee Mayor Verbally Attacks Citizen Who Filed Ethics Charges,MEDIA TRACKERS (June 28, 2012), http://mediatrackers.org/florida/2012/06/28/ tallahassee-mayor-verbally-attacks-citizen-who-filed-ethics-charges. 37. Burlew, supra note 35. 38. Sean Rossman, City Commission Gets Rid of ‘Kill Switch,’ TALLAHASSEE DEMOCRAT (July 3, 2014, 11:16 AM ET), http://www.tallahassee.com/story/news/local/ 2014/07/02/city-commission-gets-rid-of-kill-switch/12116797/. 596 Stetson Law Review [Vol. 46 was highly critical of the Mayor, other commissioners, and City staff.39 The comments became so inflammatory a kill switch was installed in the Commission chamber microphone used during public comment, but after outcry about that practice, it was quickly discontinued.40 This same citizen filed multiple complaints with the Florida Commission on Ethics based upon the Mayor’s votes in 2007, 2008, and 2010 to approve the City of Tallahassee’s participation in the Federal Broadband Technology Opportunity Program in partnership with the ADE, and his votes on matters that inured to the gain of a company that was a client of his law firm.41 The Florida Commission on Ethics ultimately exonerated Mayor Marks on all complaints.42 However, on September 19, 2012, in spite of the Mayor’s exoneration and amid additional criticism from members of the public, “the City Commission authorized the creation of a citizen’s Ethics Advisory Panel to ‘examine the existing policies, procedures and practices relating to ethics, financial disclosure and transparency’ of the City of Tallahassee and where appropriate to make recommendations for improvements.”43 “On November 7, 2012, drawing from a pool of interested citizens who were willing to serve, the City Commission appointed a nine member Panel.”44 It was asked to prepare and submit a report to the City Commission by April 1, 2013.45
III. PANEL MEETINGS AND FINDINGS
The Ethics Advisory Panel (“Panel”) conducted its first meeting on November 8, 2012.46 The Panel then held eighteen
39. Isbell, supra note 32. 40. Rossman, supra note 38. 41. See Final Order at background, disposition, In re John Marks (Jan. 25, 2013) (No. 13-004), http://www.ethics.state.fl.us/Documents/Orders/2011/11-053fo.html (explaining how it was alleged that “Respondent voted to approve the City of Tallahassee’s participation in the Federal Broadband Technology Opportunity Program in partnership with the Alliance for Digital Equality, a business entity for which the Respondent served in a compensated position, and that he voted on matters which inured to the gain of Honeywell, a principal by which the Respondent was retained”). 42. Id. 43. Ethics Advisory Panel, Report of Recommendations,CITY OF TALLAHASSEE (July 10, 2013), available at https://www.talgov.com/uploads/public/documents/treasurer/pdf/ eap/eap-final-report.pdf [hereinafter 2013 Report of Recommendations]. 44. Id. 45. Id. at 9. 46. Id. at Exhibit A. 2017] One City's Story of Ethics Reform 597 meetings in eight months, including two public hearings.47 The first public hearing allowed citizens to suggest a direction for the Panel.48 During this first public hearing, a citizen proposed establishing a local city ethics commission, with members appointed by various community organizations.49 “The Panel discussed whether there was a need for an independent body to respond to ethics complaints.”50 The Panel did not ultimately recommend a city ethics commission.51 The second public hearing was to gauge public reaction to the Panel’s proposals before the recommendations were finalized. The Panel’s stated Mission was
to review matters of ethics in view of best practices as they affect Elected Officials and City staff. The purpose of this review is to evaluate existing City policies and procedures, seeking to ensure that policies are adequate to serve their purpose, understood by those who are to abide by them, and accessible to the public. The Panel will recommend improvements to the City Commission for consideration and action addressing, but not limited to, a Code of Ethics, financial disclosure, and transparency.52
The Chair and board members commented that the actions of the Panel were not in any way related to allegations against the Mayor, and the Panel instead focused on improving an already- strong ethical foundation and culture within the City government.53 The Ethics Advisory Panel Chair, Martha W. Barnett, ultimately thanked the City Commission “for its foresight in making ethics a continuing priority for the City of Tallahassee. The Panel had the luxury of addressing these issues during a period of stability, unlike some local governments that have had to act in a time of crisis.”54
47. Id. at 4. 48. Id. 49. Id. at 9. 50. Id. 51. Id. at 10. 52. Id. at title page. 53. City Ethics Board, Special Meeting Minutes,CITY OF TALLAHASSEE (Nov. 20, 2013), available at http://www.talgov.com/Uploads/Public/Documents/ethics/131120.pdf [hereinafter Nov. 20, 2013 Special Meeting]. 54. 2013 Report of Recommendations, supra note 43, at 2. 598 Stetson Law Review [Vol. 46
The Report examined the City’s Code of Ethics, oversight, training, complaint reporting procedures, financial disclosures, voting conflicts, procurement policy, lobbyist registration, campaign finance, and revolving doors. The Panel reviewed numerous documents55 and heard from numerous speakers.56 The key preliminary recommendations of the Ethics Advisory Panel included:
● Rename and promote an existing hotline as an Ethics and Fraud Hotline to make it easy for citizens and employees to share potential concerns[;]57 ● Establish a “one-stop shop” of ethics information on the City’s website to promote additional transparency and easy access to information[;]58 ● Maintain the existing financial disclosure requirements for employees, appointed officials and advisory boards[;]59 ● Identify a way for elected leaders to disclose additional information beyond State-mandated disclosure, such as membership on boards, land ownership,60 and business relationships with current or prospective City vendors or employees[;]61 ● Eliminate awarding points to vendors in the bid process for making charitable contributions[;]62 ● Strengthen the City’s lobbyist registration ordinance, including fines and penalties for noncompliance[;]63 ● Adopt an ordinance similar to (or with reference to) State law, but which requires Elected Officials to abstain from voting if, under a duty of ‘reasonable inquiry,’ the Official knew or should likely have known that the measure would inure to his or her special private gain or loss[; and]64
55. Id. at Exhibit B. 56. Speakers included the City Attorney; the City Manager; the Executive Director of Integrity Florida; the City Auditor; Mr. Talbot “Sandy” D’Alemberte, President Emeritus of Florida State University; and Mr. Phil Claypool, former Executive Director of the Florida Commission on Ethics. Id. at Exhibit A. 57. Ethics Panel Seeks Citizen Comments,CITY OF TALLAHASSEE (May 24, 2013) (on file with Stetson Law Review). 58. Id. 59. Id. 60. “It is not uncommon for allegations of conflicts to arise where a board member or other public official lives in close proximity to the parcel or area subject to review or action.” Salkin, supra note 14, at 765. 61. Ethics Panel Seeks Citizen Comments, supra note 57. 62. Id. 63. Id. 64. 2013 Report of Recommendations, supra note 43, at 13. More specifically, once an elected official declares a conflict under the above requirement, the official shall not 2017] One City's Story of Ethics Reform 599
● Prohibit elected and appointed officials from appearing before the City Commission as a paid employee or representative for two years after their term ends.65
All recommendations of the Panel were accepted unanimously, with the exception of the oversight authority.66 The majority of the Panel members agreed, after reviewing emerging best practices from other progressive communities, the trend was the creation of an ethics officer.67 However, some members believed an ethics officer should be an appointed official, while others felt this officer needed to report to an individual or individuals other than the City Commission.68 Some Panel members noted that any ethics officer could not be totally independent because the ethics officer would be a City employee.69 However, the Chair pointed out that the Ethics Officer’s independence would stem largely from transparency and public involvement, and the public’s knowledge of what was occurring within the government.70 It was envisioned that the Ethics Officer could serve as an advisor to the elected officials regarding ethical issues, augment the advice officials currently received from the City Attorney, provide advice to employees, establish standards, create a collection of case studies or examples for training purposes, function as ombudsman to the community, monitor the fraud/abuse hotline, provide whistleblower protection, and conduct an annual ethics assessment.71 The Panel was unanimous in its vote to establish
engage in discussion about the measure and leave the chambers until the item is concluded. They would also continue to follow the statutory requirement that an elected official with a voting conflict on the day of the vote must abstain from voting. It was also suggested that a requirement that an elected official must declare a voting conflict and abstain from voting due to a business relationship which existed at any time when said relationship personally involved the elected official and specifically involved the item under consideration. If there is no special private gain or loss and the elected official was not personally involved in the item under consideration, but the official had a past business relationship with a person or company identified in an agenda item within the past three years, the elected official may participate and vote, but the relationship shall be disclosed at the time the measure is presented and prior to any vote being cast. Id. 65. Ethics Panel Seeks Citizen Comments, supra note 57. 66. 2013 Report of Recommendations, supra note 43, at 4. 67. Id. at 8–9. 68. Id. 69. Id. at 4–5. 70. Ethics Advisory Panel, Regular Meeting Minutes,CITY OF TALLAHASSEE 8 (Apr. 18, 2013), http://www.talgov.com/Uploads/Public/Documents/ethics/130418.pdf. 71. Id. 600 Stetson Law Review [Vol. 46 an ethics officer and stressed that it was up to the will of the City Commission to determine the specifics of the position.72 Many citizens appearing at meetings wanted an independent ethics officer reporting to a board.73 However, the Panel did not recommend an independent board.74 “The Panel officially adopted this Report and Recommendations to the City Commission on June 26, 2013.”75
IV. COMMISSION ACTION
The City Commission accepted the final Panel report on July 10, 2013. Subsequently, two separate City Commission workshops were held. The first workshop occurred on November 20, 2013, and over half of the Panel’s recommendations were approved and adopted. However, at the outset, Mayor Marks indicated that the Panel’s process was “‘a solution in search of a problem,’” and that none of the allegations against him were substantiated.76 In contrast, another Commissioner indicated that the Panel’s purpose was the pursuit of the best local government operation possible, and not aimed at any particular individual.77 The City Commission unanimously accepted the recommendation to adopt a formal, centralized, and comprehensive Code of Ethics that is easily accessible to citizens and includes reference to state law, city code, and policy provisions. They also agreed to incorporate a preamble, which states:
72. Id. at 5. 73. Ethics Advisory Panel, Town Hall Meeting Minutes,CITY OF TALLAHASSEE (Jan. 10, 2013), http://www.talgov.com/uploads/public/documents/treasurer/pdf/eap/130110-eap- min.pdf. 74. 2013 Report of Recommendations, supra note 43, at 4. 75. Id. 76. Nov. 20, 2013 Special Meeting, supra note 53, at 7. Mayor Marks was not alone in his assessment. Member of the Ethics Advisory Panel and pastor of First Presbyterian Church in Tallahassee, Brant Copeland, later said that the Panel was “impressed with the ethics in city government, by the amount of training in ethics, by the level of ethics found throughout city government . . . . [They] found no smoking gun. There was no ethics problem in city government.” Gerald Ensley, Ethics Proposal is Wrong and Unnecessary, TALLAHASSEE DEMOCRAT (Oct. 24, 2014, 12:30 PM ET), http://www.tallahassee.com/story/ opinion/columnists/ensley/2014/10/24/gerald-ensley-ethics-proposal-wrong-unnecessary/ 17833971/ (internal quotation marks omitted). 77. Nov. 20, 2013 Special Meeting, supra note 53, at 19. 2017] One City's Story of Ethics Reform 601
Whereas the citizens of Tallahassee have determined that they will be best served by adopting a municipal form of local government; and whereas the citizens have vested in the public officials and employees of that municipal government the responsibility and trust for operating that government for the benefit of its citizens; and whereas those citizens are entitled to a government that is open, ethical, responsive and accountable to the highest degree possible; now, therefore, the following ethics code is adopted[.]78
The Commission also unanimously agreed to require all officials and employees to swear an Oath of Office, as follows:
I, ______, a citizen of the State of Florida and of the United States of America, and being employed by or an officer of and a recipient of public funds as such employee or officer, do hereby solemnly swear or affirm that I will support the Constitution of the United States and of the State of Florida.79
I further solemnly swear or affirm that I have a commitment to the public trust, the highest standards of professionalism and ethics including a commitment to the constant appearance of propriety, always putting public trust first and never allowing personal benefit to affect my decisions and service as a public servant.80
Other recommendations unanimously adopted included:
● Crea[tion of] a handbook to help citizens and employees understand the City’s Code of Ethics . . . [;]81 ● Expan[sion of] the . . . Fraud Hotline to include Ethics . . . [;]82 ● Repeal [of] the Charitable Contribution preference points program in relation to the competitive bidding process[;]83 ● Inclu[sion] of standardized “boilerplate” language in City contracts to put vendors on notice that they must adhere to the City’s ethics policies[;]84
78. Id. at 5. 79. FLA.STAT. § 876.05(1) (2016). 80. Nov. 20, 2013 Special Meeting, supra note 53, at 5. 81. Id. (emphasis added). 82. Id. 83. Id. at 6. 84. Id. 602 Stetson Law Review [Vol. 46
● Prohibit[ion of] future Appointed Officials (in addition to Elected Officials) from appearing before the City Commission for compensation for a [two]-year period after the official leaves the employ of the City;85 ● [Expansion of requirement to disclose job offers extended by City vendors to Elected Officials as well as for Appointed Officials and selected City employees;]86 ● Require the Elected Officials to participate in an initial comprehensive ethics training course within [sixty] days of taking office, with refresher ethics training conducted on an annual basis and documentation of attendance and completion of all courses in the Official’s personnel file[;]87 ● Incorporate training on the Voting Conflicts and the “reasonable inquiry” expectation into the Ethics Training Program for Elected Officials[;]88 ● Provide training to Elected Officials and their Aides relative to the Florida gift ban law and gift reporting requirements[;]89 ● Incorporate training on Florida election laws relating to campaign contributions, prohibitions on campaigning while performing official duties, and prohibitions on collecting campaign contributions within government buildings[;]90 ● Continue with the current practice and expand and enhance the recruitment, selection, initial orientation, appointment, and promotional procedures and processes to ensure that only the most ethical individuals are employed, appointed, and/or promoted items.91
Items requiring further Commission discussion related to the role and reporting structure for the Ethics Official, enhanced disclosure for elected officials, reasonable inquiry prior to voting, City lobbyist reporting requirements, adopting fines for violations, and evaluation of ethics training.92 The second workshop was held on March 12, 2014, when these additional provisions were discussed.93 The Commission
85. Id. 86. Id. 87. Id. 88. Id. 89. Id. 90. Id. 91. Id. 92. Id. at 6, 15, 19. 93. City Ethics Board, Special Meeting Minutes,CITY OF TALLAHASSEE 2, 5 (Mar. 12, 2014), available at http://www.talgov.com/Uploads/Public/Documents/ethics/140312.pdf [hereinafter Mar. 12, 2014 Minutes]. 2017] One City's Story of Ethics Reform 603 discussed how the Ethics Officer would take office––either (1) the Ethics Officer would be an appointed official, or (2) the Ethics Officer would be jointly interviewed and hired by the City Auditor and City Attorney, and housed in the City Auditor’s Office.94 Ultimately, the Commission decided that the Ethics Officer would jointly report to the City Auditor and City Attorney. The Commission then voted to adopt recommendations to create an appointed five-member Citizens’ Advisory Committee on Ethics to monitor the implementation of the Panel’s recommendations and to present a report to the City Commission after one year.95 Next, the Commission took note of the Ethics Code provision in section 112.3143(3)(a), Florida Statutes, which states that:
No county, municipal, or other local public officer shall vote in an official capacity upon any measure which would inure to his or her special private gain or loss; which he or she knows would inure to the special private gain or loss of any principal by whom he or she is retained or to the parent organization or subsidiary of a corporate principal by which he or she is retained ....96
The Commission then adopted an ordinance “which requires Elected Officials to abstain from voting if, under a duty of ‘reasonable inquiry,’ the Official knew or should likely have known that the measure would inure to his or her special private gain or loss.”97 Once a conflict is declared, the Official “shall not engage in discussion about the measure, and must leave the chambers until the item is concluded.”98 Whereas state ethics law only examines the day a particular vote was cast to determine if a conflict existed on that particular day, the Commission accepted the Panel’s recommendation requiring that officials exercise due diligence and make additional disclosures.99 Further, the Commission mandated lobbyist registration and enacted requirements for lobbyists to disclose clients.100 A process
94. Nov. 20, 2013 Special Meeting, supra note 53, at 21. 95. Id. at 8–9. 96. FLA.STAT. § 112.3143(3)(a) (2016). 97. Mar. 12, 2014 Minutes, supra note 93, at 3. 98. 2013 Report of Recommendations, supra note 43, at 5. 99. Id. at 15–16. 100. Id. at 14. 604 Stetson Law Review [Vol. 46 was also put in place for barring lobbyists and fining noncompliant lobbyists.101 The Commission also adopted enhanced disclosure for elected officials, including business relationships with City vendors, business relationships with City employees, membership on corporate boards, membership on not- for-profit boards, and any land ownership.102 The Commission then passed a comprehensive ethics ordinance reflective of those votes.103 The City widely advertised to fill the position of Ethics Officer, who would report to the City Auditor and City Attorney— over 150 applicants applied.104 I was jointly interviewed by the City Auditor and City Attorney. The second-round interview was with the City Auditor and City Attorney, joined by the City Manager and Treasurer Clerk. I started working on October 1, 2014.105 However, these actions were unsatisfactory to some community members. Many had wanted the Ethics Officer to be an appointed official, while others wanted an Independent Ethics Officer reporting to a Board.106 This dissatisfaction led to further citizen action.
V. CITIZEN ACTION
An amendment to the City Charter was presented and promoted by Citizens for Ethics Reform and a national organization, Represent Us.107 The Referendum’s purpose was to
101. Id. at 15. 102. Id. at 5; see also City of Tallahassee, Financial Disclosure For Elected Officials (FORM EB1), (June 2015), available at http://www.talgov.com/uploads/public/documents/ treasurer/pdf/ethics/eb-financial-disclosure-elected-officials.pdf. 103. CITY OF TALLAHASSEE,FLA., ORDINANCE NO. 14-0-44AA (Sept. 22, 2014). 104. Jeff Burlew, City Ethics Post Attracts 150-Plus Applicants,TALLAHASSEE DEMOCRAT (Sept. 13, 2014, 11:39 AM ET), http://www.tallahassee.com/story/news/politics/ 2014/09/13/tallahassee-searches-ethics-officer/15578639/; see also Job Description: Ethics Officer, City of Tallahassee, available at http://www.talgov.com/Uploads/Public/ Documents/hr/hr/specs/791.pdf (last updated Oct. 1, 2015) (describing the functions, duties, and qualifications necessary to become the Ethics Officer). 105. TaMaryn Waters, Julie Meadows-Keefe Hired as New Ethics Officer,TALLAHASSEE DEMOCRAT (Sept. 30, 2014, 11:34 PM ET), http://www.tallahassee.com/story/news/local/ 2014/09/30/julie-meadows-keefe-hired-new-ethics-officer/16516757/. 106. See Jeff Burlew, Ethics Board Facing Criticism from Amendment Backers, TALLAHASSEE DEMOCRAT (July 25, 2015, 1:26 PM ET), http://www.tallahassee.com/story/ news/politics/2015/07/24/ethics-board-facing-criticism-amendment-backers/30628291/. 107. Sam Shanky, Anti-corruption Movement Scores Major Victories at the Polls, BULLETIN.REPRESENT.US (Nov. 5 2014), http://bulletin.represent.us/anti-corruption- movement-scores-major-victory-polls/. 2017] One City's Story of Ethics Reform 605 amend the City Charter on ethics and campaign finance matters, including a provision for partial public funding of elections.108 The Charter Amendment Referendum read as follows:
Shall the Charter of the City of Tallahassee be amended to establish an ethics and anti-corruption policy; require the enactment of an ethics code, establishment of an independent ethics board with broad powers, creation of an ethics office and officer; limit campaign contributions to City Commissioners to $250 per contributor per election and establish a citizen campaign finance program with refunds from city funds for contributions and provide for severability.109
The Charter Amendment required:
● “Enact[ment of] an ethics . . . code with jurisdiction over the officers and employees of the City of Tallahassee, whether elected or appointed, paid or unpaid, and over the members, officers and employees of any boards, commissions, or committees thereof. The ethics code may, as allowed by law, supplement state ethics laws”;110 ● Creation of an ethics Board with appointments by “the City Commission, the Chief Judge for the Second Judicial Circuit, the State Attorney for the Second Judicial Circuit, the President of Florida State University and the President of Florida A&M University. Two Board members shall be appointed by the Ethics Board.”111 The Board would, in part, make recommendations to the City Commission on various matters, including proposed ethics ordinances and employ an Ethics Officer;112 ● “[E]stablishment of a citywide Ethics Office . . . reporting to the independent Ethics Board” with sufficient City Commission funding to function “at a level sufficient to discharge the Office’s responsibilities”;113
108. Referendum Amending City of Tallahassee Charter, available at https://www.talgov.com/Uploads/Public/Documents/ethics/pdf/referendum_150210.pdf (last visited Apr. 18, 2017) [hereinafter Referendum]. 109. Id. 110. Id. at Section 2a. 111. Id. at Section 2b. 112. Id. 113. Id. at Section 3. 606 Stetson Law Review [Vol. 46
● Reduction of “campaign contributions from any contributor, including a political committee . . . [to] $250”;114 and ● Establishment of a Campaign contribution refund program to refund city electors a maximum of $25 for contributions to city candidates.115
Some believed that the ethics proposal was going too far.116 The most significant bone of contention was the proposal to establish the campaign contribution refund program. The local organizers of the initiative, Citizens for Ethics Reform, partnered with United Republic and Represent Us, two Massachusetts- based organizations committed to undoing Citizens United and instituting campaign finance reform.117 United Republic contributed over $120,000 to assist with signature collection.118 Nine thousand signatures were required to place the measure on the ballot. Citizens for Ethics Reform, through a petition drive, was able to collect more than twenty thousand signatures.119 However, the City believed that the ballot title and summary did not fairly inform voters of its chief purpose and was misleading. Of particular concern was that the proposal for the $25 campaign contribution rebate program did not fit within the single subject of ethics reform.120 The City challenge made it uncertain whether the measure would make the September 5, 2014, deadline for placement on the ballot. An expedited hearing was conducted, and the Circuit Judge decided that the measure
114. Id. at Section 4. 115. Ensley, supra note 76. 116. Id. 117. Id. See Represent Us, The Truth About Citizens United,REPRESENT US, https://act.represent.us/sign/Citizens-United/ (last visited Apr. 18, 2017) (describing Represent Us’ commitment to overruling Citizens United and ending political corruption on a broad scale). 118. Jeff Burlew, City Ethics Amendment Passes by Wide Margin,TALLAHASSEE DEMOCRAT (Nov. 5, 2014, 8:12 AM ET), http://www.tallahassee.com/story/news/politics/ 2014/11/04/voters-decide-city-ethics-proposal/18459015/. 119. Jeff Burlew, Ethics Proposal Gets Enough Signatures for Ballot,TALLAHASSEE DEMOCRAT (Aug. 5, 2014, 2:47 PM ET), http://www.tallahassee.com/story/news/local/2014/ 08/05/ethics-proposal-gets-enough-signatures-for-ballot/13625497/. 120. TaMaryn Waters, Ethics Initiative Proponents Seek Quick Resolution to City Challenge, TALLAHASSEE DEMOCRAT (Aug. 20, 2014, 10:11 PM ET), http://www .tallahassee.com/story/news/politics/2014/08/20/ethics-initiative-proponents-seek-quick- resolution-to-city-challenge/14370451/. 2017] One City's Story of Ethics Reform 607 should be placed on the ballot because the language was not confusing, deceptive, inflammatory, or misleading.121 The Commission decided not to instruct the City Attorney to appeal the ruling so that the measure could go before voters.122 The Charter Amendment passed on November 4, 2014, with sixty-seven percent of the vote. Represent Us touted the victory in a marketing video designed to instruct and motivate other communities to enact similar measures.123
VI. A NEW BOARD IS FORMED
The Charter amendment requires that the City of Tallahassee’s Independent Ethics Board consist of the following appointees:
● One appointed by the City Commission; ● One appointed by the State Attorney; ● One appointed by Florida State University; ● One appointed by Florida A&M University; ● Two board-appointed members; and ● One member Appointed by Chief Judge (unfilled).124
121. Jeff Burlew, City Charter Amendments Will Go on November Ballots, TALLAHASSEE DEMOCRAT (Aug. 29, 2014, 11:13 PM ET), http://www.tallahassee.com/story/ news/politics/2014/08/29/city-charter-amendment-will-go-november-ballots/14839761/. 122. Id. 123. First Anti-Corruption Act in US History Passes 1:13–3:30 (Represent Us video Nov. 6, 2014), https://www.youtube.com/watch?v=LhEFehRWApM. 124. Members of the first full board included City appointee, Lila Jaber, who served as first Chair; FAMU appointee, Funmi Ojetayo; FSU appointee, Richard Herring; State Attorney appointee, Cecil Davis, Jr.; Thomas J. Friedman, at-large; and Renee McNeil, at- large. Jeff Burlew, City Ethics Board Meets for First Time,TALLAHASSEE DEMOCRAT (Feb. 10, 2015, 4:49 PM ET), http://www.tallahassee.com/story/news/2015/02/10/city-ethics- board-meets-for-first-time/23181609/. Chief Judge Francis declined to make an appointment after reviewing Florida Supreme Court Judicial Ethics Advisory Committee Opinion 2009-14. See Ethics Board Agenda,CITY OF TALLAHASSEE ETHICS BOARD 2 (Mar. 12, 2015), available at https://www.talgov.com/uploads/public/documents/ethics/pdf/ethics- board-agenda-150312.pdf (showing an email from Lew Shelley to Jim Cooke); see also Florida Judicial Ethics Advisory Committee, Formal Op. 2009-14 (Aug. 31, 2009), available at http://www.jud6.org/legalcommunity/legalpractice/opinions/jeacopinions/2009/ 2009-14.html. The Board wrote to the Chief Judge succeeding Judge Francis, Judge Sjostrom, asking if he would be willing to make an appointment. City Ethics Board, Regular Meeting Minutes,CITY OF TALLAHASSEE 9 (Aug. 20, 2015) available at http://www.talgov.com/uploads/public/documents/ethics/pdf/ethics-board-minutes-150820 .pdf [hereinafter Aug. 20, 2015 Minutes]. However, he declined. Letter from Johnathan Sjostrom to Lila Jaber, Ethics Board Appointment (Sep. 3, 2015), available at http://www.talgov.com/uploads/public/documents/ethics/pdf/eb-skm-150916.pdf. The Board will most likely not ask again based on the legal opinion from Board counsel. Letter from 608 Stetson Law Review [Vol. 46
The first meeting occurred on February 10, 2015, with the City Commission, Florida State University, Florida A&M University, and the State Attorney’s Office appointees.125 Both Chief Circuit Judges that have presided during the Board’s existence have declined to make appointments based on a Florida Supreme Court Judicial Ethics Advisory Committee opinion.126 The Board received various briefings and instructed the City’s assistance in securing two additional members.127 At their second meeting on March 12, 2015, those members appointed two additional citizen members drawn from a pool of qualified applicants.128 The first full board meeting occurred on March 23, 2015,129 and the Chair and Vice Chair were elected.130 At the first several meetings, it was necessary for City staff to be present and
Gerald B. Curington to Lila Jaber, Chair, Tallahassee Independent Ethics Bd., Re: Tallahassee Ethics Opinion 2015-3 (Sept. 24, 2015), http://www.talgov.com/uploads/public/ documents/ethics/pdf/eb-addmem-151014.pdf. See also Sean Rossman, Ethics Board Completes Year of Building: Panel Labored Over Authority, Bylaws, Complaints, Penalties, TALLAHASSEE DEMOCRAT, Jan. 20, 2016, 1A. Board members file form 1 and form 9 if gifts are received. See City Ethics Board, Regular Meeting Minutes,CITY OF TALLAHASSEE ETHICS BOARD 2 (Feb. 10, 2015), available at https://www.talgov.com/uploads/public/ documents/ethics/pdf/ethics-board-minutes-150210.pdf [hereinafter Feb. 10, 2015 Minutes]. Currently, Richard Herring serves as Chair and Ms. Sunny Phillips has replaced Ms. Jaber as the City Commission appointee. City Ethics Board, Regular Meeting Minutes,CITY OF TALLAHASSEE ETHICS BOARD 1, 4 (Jan. 19, 2016), available at https://www.talgov.com/uploads/public/documents/ethics/pdf/eb-160216-minutes-160119 .pdf [hereinafter Jan. 19, 2016 Minutes]. 125. Burlew, supra note 124; see also February 10, 2015 Minutes, supra note 124, at 1 (“The City of Tallahassee Ethics Board held its first regular session on February 10, 2015 in the City Hall Commission Chambers. Present were Board members Davis, Jaber, Herring, and Ojetayo.”). 126. Supra note 124; see also Florida Judicial Ethics Advisory Committee, supra note 124, at 2 (“For the foregoing reasons, this Committee recommends that the chief judge respectfully decline to appoint members of the Board of Ethics.”). See also Rossman, supra note 124, at 1A, 6A. 127. See February 10, 2015 Minutes, supra note 124, at 1 (noting that the Board requested the Treasurer-Clerk to solicit applications for the remaining seats on the Board). 128. See City Ethics Board, Regular Meeting Minutes,CITY OF TALLAHASSEE ETHICS BOARD 1 (Mar. 12, 2015), available at https://www.talgov.com/uploads/public/documents/ ethics/pdf/ethics-board-minutes-150312.pdf (noting that applicant qualification consists of being a registered City Tallahassee elector, with appropriate subject matter expertise, none of whom may be an officer or employee of local government); Referendum, supra note 108, at Section 2b (“There is hereby created an independent, appointed, ongoing citizens Ethics Board of seven members, whose membership shall consist of registered City of Tallahassee electors who have appropriate subject matter expertise none of whom may be an officer or employee of local government.”). 129. City Ethics Board, Regular Meeting Minutes,CITY OF TALLAHASSEE ETHICS BOARD 1 (March 23, 2015), available at https://www.talgov.com/uploads/public/documents/ethics/ pdf/ethics-board-minutes-150323.pdf. 130. Id. 2017] One City's Story of Ethics Reform 609 to assist the board in becoming established, staffed, supported, and functional;131 however, the public clamored for the Board to quickly demonstrate independence.132 As each meeting occurred, City staff became less visible. Currently, staff is invited to meetings to provide education to Board members about various City functions, and they may choose to attend because the meetings are public.133 One of the Board’s first tasks was to adopt a mission statement, which states: “To promote the actual and perceived integrity of our city government and to prevent unethical conduct before it occurs.”134 The mission statement recognized that the overall aim of the Ethics Board was to improve both the perception and reality of integrity in local government and to encourage public participation.135 Another urgent task for the Board was to establish an operational budget.136 The Charter Amendment requires that the City “shall be funded by the City Commission within its discretionary budgetary authority at a level sufficient to discharge the Board’s responsibilities.”137
131. See Feb. 10, 2015 Minutes, supra note 124, at 2. 132. Rossman, supra note 124, at 6A (noting that at the first Board meeting, City Attorney Lew Shelley advised the board that they were independent and that they should “feel free at any point in time, if it’s the will of the majority, to ignore what any of us say”). 133. See, e.g., Procurement Overview: Department of Management and Administration, CITY OF TALLAHASSEE, http://www.talgov.com/uploads/public/documents/ethics/pdf/eb- 151112-11d-presentation.pdf (last visited Apr. 18, 2017) (providing a presentation on “Procurement Overview”). 134. Independent Ethics Board, Bylaws of the City of Tallahassee 1 (Jan. 19, 2016), http://www.talgov.com/uploads/public/documents/ethics/pdf/eb-160216-bylaws-ethics- board-proposed-technical-amends.pdf. Indeed, there is additional support for the proposition that the purpose of any ethics board is to promote the reality and the perception of integrity in government. See Governmental Ethics Laws, supra note 14, at 186 (“[E]nforcement actions and fines are not an ethics commission’s successes; they are its failures.”). 135. Governmental Ethics Laws, supra note 14, at 119. 136. See, e.g., Funds Available FY15,CITY OF TALLAHASSEE ETHICS OFFICE (Feb. 28, 2015), http://www.talgov.com/uploads/public/documents/treasurer/pdf/ethics/ethics-budget- 150219.pdf (delineating the various expenses and budget considerations the board has encountered during 2015). 137. Referendum, supra note 108, at Section 2b. See also Feb. 10, 2015 Minutes, supra note 124, at 2–3 (discussing how the allocation of certain costs is contingent upon the Board’s decision to hire employees or independent contractors); Updated Budget,CITY OF TALLAHASSEE ETHICS BOARD (Mar. 31, 2015), http://www.talgov.com/uploads/public/ documents/treasurer/pdf/ethics/ethics-board-budget16.pdf (outlining projected expenses for the 2016 fiscal year). Furthermore, it became necessary to ask the City Commission for a supplemental appropriation for fiscal year 2016. Supplemental Appropriation for Independent Ethics Board,CITY OF TALLAHASSEE INDEPENDENT ETHICS OFFICE (Feb. 24, 2016), http://www.talgov.com/uploads/public/documents/ethics/pdf/eb-160119-draft-cc- suplmt-appr-req-011416.pdf; see also Jan. 19, 2016 Minutes, supra note 124, at 3–4 610 Stetson Law Review [Vol. 46
Further, the Charter Amendment requires the Independent Ethics Board to undertake the following tasks:
● Review and develop a City Ethics Code;138 ● Adopt bylaws and due process procedures;139 ● Manage existing ethics and fraud hotline;140 ● Manage and coordinate training;141 ● Recommend resolutions, ordinances, or charter amendments;142 ● Investigate complaints and levy civil penalties;143 ● Employ staff and supervises the ethics officer;144 ● Administer campaign contribution refund program;145 ● Ensure independence and impartiality;146 and ● Provide for the maximum practicable input from citizens and community organizations.147
The Board’s attention to these tasks will now be examined in a bit more detail. Functions that are similar will be grouped together.
(noting that the Board unanimously agreed to request a supplemental appropriation from the City Commission covering various expenditures such as startup costs and legal fees). Annual costs for the Board were initially approximately $137,000 annually. A budget request for approximately $344,000 has been submitted for FY 2017–2018. The increase is largely due to having to retain outside counsel and to budget for investigators and court reporters that the Board may or may not need depending on the number of complaints received. 138. Referendum, supra note 108, at Section 2a. 139. Id. at Section 2b. 140. Id. 141. The Ethics Officer trained the City Commission and executive team in January 2015 and January 2016, partially based upon the requirement in section 112.3142(2)(b). See Mark Davies, Enacting a Local Ethics Law–Part III: Administration, 22 MUN.LAW. 11, 12 (2008) (“[O]ne municipal ethics ordinance subjects high-level officials to a $500 fine if, within 120 days of assuming their position and every four years thereafter, they fail to attend an ethics education seminar offered by the ethics board.”). 142. Referendum, supra note 108, at Section 2b. 143. City Ethics Board, Regular Meeting Minutes,CITY OF TALLAHASSEE ETHICS BOARD (Nov. 12, 2015), available at https://www.talgov.com/uploads/public/documents/ethics/pdf/ eb-151215-Minutes.111215.pdf [hereinafter Nov. 12, 2015 Minutes]; Draft of Agenda Item Details,CITY OF TALLAHASSEE ETHICS BOARD (Mar. 23, 2016), http://www.talgov.com/ uploads/public/documents/ethics/pdf/eb-160315-penalties-(2).pdf. 144. Id. 145. City Ethics Board, Regular Meeting Minutes,CITY OF TALLAHASSEE ETHICS BOARD 2–3 (July 13, 2015), available at https://www.talgov.com/uploads/public/documents/ethics/ pdf/ethics-board-minutes-150713.pdf [hereinafter July 13, 2015 Minutes]. 146. Referendum, supra note 108, at Section 2b. 147. Id. 2017] One City's Story of Ethics Reform 611
A. Review and Development of City Ethics Code and Recommendations of Resolutions, Ordinances, and Charter Amendments
In 2015, the City passed an Ethics Ordinance in response to the Panel’s report. The Board carefully reviewed and discussed those provisions.148 Subsequently, an ordinance was passed to establish the Independent Ethics Board and set Board terms.149 The Board counsel later made recommendations for revisions to the City Ethics Code, which the Board advanced to the City Commission for passage.150 In May 2016, Board counsel opined that the Charter Amendment does not allow the Board to exercise concurrent jurisdiction with the Florida Commission on Ethics and the Board’s sole jurisdiction is for violations of the City’s Ethics Code.151 This has increased the Board’s sense of urgency to recommend additional provisions for passage by the City Commission.
B. Adoption of Bylaws and Due Process Procedures
The Board was deliberative as it “slogged” through the adoption of bylaws and procedures such that one reporter described it as “laboring.”152 However, preliminary bylaws and
148. City Ethics Board, Regular Meeting Minutes,CITY OF TALLAHASSEE ETHICS BOARD (May 21, 2015), available at https://talgov.com/uploads/public/documents/ethics/pdf/ethics- board-minutes-150521.pdf [hereinafter May 21, 2015 Minutes]. 149. TALLAHASSEE,FLA., ORDINANCE § 2-13 (2015). 150. Letter from Gerald B. Curington to Lila Jaber, Chair, Tallahassee Independent Ethics Bd., Recommendations to City Commission Regarding Ethics Board 2–3 (Aug. 6, 2015), available at http://www.talgov.com/uploads/public/documents/treasurer/pdf/ethics/ eb-recommendations-150820.pdf; see also Memorandum from Julie Meadows-Keefe, Independent Ethics Officer, to Lewis Shelley, City Attorney, Ethics Board Recommendations for Modifications to City Ethics Ordinances (Aug. 17, 2015), available at http://www.talgov.com/uploads/public/documents/ethics/pdf/eb-rec-ec-signed-memo-150916 .pdf. 151. May 21, 2015 Minutes, supra note 148. 152. Rossman, supra note 124, at 1A; see also, e.g., City Ethics Board, Regular Meeting Minutes,CITY OF TALLAHASSEE ETHICS BOARD (June 4, 2015), available at https://www.talgov.com/uploads/public/documents/ethics/pdf/ethics-board-minutes-150604 .pdf (“After completing a page-by-page review of the proposed bylaws, Ms. Jaber stated that she understood the Board’s concerns, and that she, along with Ethics Officer Meadows-Keefe, would make the requested changes to the proposed bylaws.”); Nov. 12, 2015 Minutes, supra note 143 (“A motion was made by Mr. Herring and seconded by Mr. Ojetayo that the Bylaws be amended as presented.”); Ethics Board Agenda,CITY OF TALLAHASSEE ETHICS BOARD (April 6, 2015), https://www.talgov.com/Uploads/Public/ Documents/ethics/pdf/apr6-agenda.pdf (stating that there was a “[d]iscussion of draft Bylaws”); May 21, 2015 Minutes, supra note 148 (“City Ethics Officer Meadows-Keefe 612 Stetson Law Review [Vol. 46 processes were stood up in short order so that the Board had a structure in place for governance.153 Later, when the Board counsel was hired, he was tasked with examining the existing bylaws and making recommendations that were discussed and in most cases adopted.154 A hallmark of this Board is that because it is relatively new, it is a continuous work-in-progress and seeks to consistently improve and adopt the best practices.155 Additionally, due process procedures were examined in 2016 through a Committee process to ensure the fairest process for both the citizens and officials.156 There is also an interest in moving complaints expeditiously through the process. Therefore, the bylaws allow for probable cause committees to process complaints between meetings and for contested matters to be adjudicated at the Department of Administrative Hearings (“DOAH”).
C. Management and Coordination of Ethics Training
Noting that ethics commissions in other local governments have been criticized for insufficiently training board members,157 Tallahassee’s Independent Ethics Board has first emphasized educating itself.158 The Board receives annual ethics training each April.159 Current Board Chair, Richard Herring, has also instituted “Ethics Moments” at the beginning of each Board meeting, where recent decisions by the Florida Ethics
reported that the proposed draft bylaws provided to the Board were patterned after Robert’s Rules of Order . . . .”); Draft Bylaws of the City of Tallahassee Independent Ethics Board,CITY OF TALLAHASSEE ETHICS BOARD, http://www.talgov.com/uploads/public/ documents/treasurer/pdf/ethics/ethics-board-bylaws-draft.pdf (last visited Apr. 18, 2017). 153. See, e.g., May 21, 2015 Minutes, supra note 148, at 1–2 (addressing each article and section of the proposed bylaws and agreeing to establish a hearing process). 154. See Feb. 10, 2015 Minutes, supra note 124, at 1 (discussing City Attorney Shelly’s briefing on the City Commission’s enactment of the Ethics Advisory Panel’s recommendations). 155. See Rossman, supra note 124, at 1A (discussing the Board’s development throughout its first year of existence). 156. May 21, 2015 Minutes, supra note 148, at 2 (discussing the Board’s decision to establish a hearing process). 157. Office of Program Policy Analysis and Government Accountability, Palm Beach County Commission On Ethics Was Created Using Several Best Practices; Some Practices Could Be Enhanced, Report No. 13-10, at 8–9 (Oct. 2013). 158. E.g., Julie Meadows-Keefe, PowerPoint on Government Ethics,CITY OF TALLAHASSEE ETHICS OFFICE (May 21, 2015), available at http://www.talgov.com/uploads/ public/documents/treasurer/pdf/ethics/pp.pdf; see also May 21, 2015 Minutes, supra note 148, at 4 (proposing to obtain the services of independent counsel to advise the Board on various matters). 159. Meadows-Keefe, supra note 158. 2017] One City's Story of Ethics Reform 613
Commission or relevant items of interest and applicability are brought to the Board and discussed to enhance Board understanding of ethics issues.160 Even before passage of the Charter Amendment, the Ethics Officer’s role was envisioned to be the central point of contact for ethics matters within the City. I provided annual ethics training to the City Commission, staff, and executive management in January 2015161 and January 2016.162 I have also personally provided ethics education to city advisory boards and councils, and provided general staff training. Additionally, from Board inception, outside speakers have come to educate the Board about the Sunshine and Public Meeting Laws, the role of the Florida Commission on Ethics, and the role of the Florida Elections Commission.163 City staff has also regularly made presentations to the Board, so that members may understand such functions as procurement, communications, and City management and organization.164 The Board also reviewed the ethics training provided to all City employees and heard from the staff member who organizes general employee ethics education.165
160. See, e.g., Ethics Board Agenda,CITY OF TALLAHASSEE ETHICS BOARD (July 19, 2016), available at http://www.boarddocs.com/fla/talgov/Board.nsf/files/ABVK4U4F4E26/ $file/Ethics%20Board%20Agenda%20July%202016.pdf (reserving time at the beginning of the meeting for the “Ethics Moment”). 161. See Feb. 10, 2015 Minutes, supra note 124, at 3 (noting that Ms. Meadows-Keefe assumed the responsibility of providing ethics training). 162. Rossman, supra note 124, at 6A. 163. See Ethics Board Agenda,CITY OF TALLAHASSEE ETHICS BOARD (Apr. 19, 2016), available at http://www.boarddocs.com/fla/talgov/Board.nsf/files/A8ZGAP42A1F8/$file/ Agenda.pdf (Hon. Simone Marstiller); Ethics Board Agenda,CITY OF TALLAHASSEE ETHICS BOARD (Nov. 12, 2015), https://www.talgov.com/uploads/public/documents/ethics/pdf/eb- 151112-agenda.pdf (Pat Gleason); City Ethics Board, Regular Meeting Minutes,CITY OF TALLAHASSEE ETHICS BOARD (Oct. 14, 2015), available at https://www.talgov.com/uploads/ public/documents/ethics/pdf/eb-151112-02-minutes.pdf [hereinafter Oct. 14, 2015 Minutes] (Elections Commission Director); Aug. 20, 2015 Minutes, supra note 124 (Ethics Commission staff). 164. Ethics Board Agenda,CITY OF TALLAHASSEE ETHICS BOARD (Feb. 16, 2016), https://www.talgov.com/uploads/public/documents/ethics/pdf/eb-160216-agenda.pdf. 165. E.g., Ethics for a Modern Workforce,CITY OF TALLAHASSEE DEP’T OF EQUITY & WORKFORCE DEV. 3–4, http://www.talgov.com/uploads/public/documents/ethics/pdf/eb- 151215-Ethics%20Training%20Presentation.pdf (last visited Apr. 18, 2017); City of Tallahassee, Ethics Meeting December 15, 2015 (YouTube video Dec. 15, 2015), https://www.youtube.com/watch?v=kf0RIIFjcXw&feature=youtu.be. 614 Stetson Law Review [Vol. 46
D. Management of the Existing Ethics and Fraud Hotline, Investigation of Complaints, and Assessment of Civil Penalties
I began staffing the Ethics and Fraud Hotline as of October 1, 2014, and this continues as of this publication.166 All calls to the hotline and inquiries received via email167 or other means are tracked and reported to the Board monthly. There have been approximately seventy-eight calls and inquiries between October 1, 2014, and September 2016.168 Many times, callers have general questions or believe that they have reached someone who can assist them with issues unrelated to City Ethics violations. It enhances community trust in the Board to try to assist those callers in reaching the appropriate venue for resolution of their issues. Once the Board was empaneled, it discussed over several meetings the desired format for complaints. The Florida Ethics Commission requires sworn complaints,169 as do other jurisdictions such as Palm Beach and Jacksonville.170 However, the Tallahassee Board decided to not require sworn complaints, but to make many means available to initiate complaints.171 Much public comment and discussion took place to assure that
166. See Feb. 10, 2015 Minutes, supra note 124, at 3 (stating that Ms. Meadows-Keefe directly receives and responds to calls made to the Ethics and Fraud hotline); see also Ethics Hotline Tracking Spreadsheet,CITY OF TALLAHASSEE ETHICS BOARD, http://www.talgov.com/uploads/public/documents/treasurer/pdf/ethics/ethics-board- tracking.pdf (last visited Apr. 18, 2017) (listing details of complaints made to the Ethics and Fraud Hotline). 167. The Board adopted an easy-to-remember email address for ethics inquiries, [email protected]. 168. It is likely that some complaints will be deemed invalid. See Johnson, supra note 9, at 758 (explaining that even when there are penalties for making frivolous reports, there will still be some unfounded complaints). 169. See Complaint Form, FLA.COMMISSION ON ETHICS (CE FORM 50—EFF. 4/2008), available at http://www.ethics.state.fl.us/Documents/Forms/Complaint%20Form .PDF?cp=2017412 (last visited Apr. 18, 2017) (requiring that complaints are “sworn before a notary or other official authorized to administer oaths”). 170. See Complaint Form, JACKSONVILLE ETHICS COMMISSION, http://www.coj.net/ departments/boards-and-commissions/docs/ethics-commission/complaint-form-april-2010- ext.aspx (last visited Apr. 18, 2017) (requiring complaint forms to be sworn before a notary or other authorized person); Complaint Form, PALM BEACH COUNTY COMMISSION ON ETHICS, available at http://www.palmbeachcountyethics.com/pdf/Forms/Complaint_Form _and_Instructions.pdf (last visited Apr. 18, 2017) (requiring complaint forms to be sworn and notarized). 171. See Letter from Richard Herring to Members of the Ethics Board, Interim Interaction with the City 1 (March 30, 2015), available at http://www.talgov.com/uploads/ public/documents/treasurer/pdf/ethics/interim_complaint_process.pdf (explaining that filed complaints may be sworn or unsworn, and permitting anonymous complaints). 2017] One City's Story of Ethics Reform 615 the complaint process would be accessible to all, simple and transparent, easy to obtain and locate, and clearly understandable.172 The form is available online.173 Another distinguishing characteristic is that the Board, unlike the Florida Ethics Commission, can self-initiate complaints and investigations.174 It has not yet done so. Generally, when a complaint or inquiry is relayed to the ethics office, the Ethics Officer determines whether the accusation would violate state or local ethics codes if it were to be found true. If it would be a violation, he or she turns all investigatory materials over to the Board along with a recommendation. The Board then convenes in a closed meeting to determine whether or not there is probable cause to believe a violation has been committed. No matter the outcome, all documents related to the case are made public following the closed-door meeting. If they do determine probable cause, the Board notifies the alleged violator in writing. That person is entitled to a public hearing in front of the Board––complete with witnesses and testimony––or they could settle. At the end of the hearing, the Board will make a written decision or refer the case to proper authorities. If the person is found in violation of the City’s Ethics Code, the Board may levy civil penalties. The Board also has a process for appropriate referral of matters to other entities inside and outside the City. One example occurred following an unsubstantiated ethics complaint alleging that energy auditors were utilizing their positions to gain clients for their personal heating and air conditioning businesses. Subsequently, after meeting with the concerned citizens, the City Auditor conducted a system-wide audit of the
172. Aug. 20, 2015 Minutes, supra note at 124, at 4–5; see also Complaint Form, INDEPENDENT ETHICS BOARD FOR THE CITY OF TALLAHASSEE COMPLAINT FORM, https://www.talgov.com/uploads/public/documents/ethics/pdf/eb-complaint-form.pdf (last visited Apr. 18, 2017) (providing clear and simple directions to make a complaint and specifically stating that complaints may be anonymous). 173. Complaint Form, supra note 172. 174. Keeping the Faith, supra note 8, at 113; see also Letter from Gerald B. Curington, Counsel at Ausley McMullen, to Lila A. Jaber, Chair, Tallahassee Independent Ethics Bd., Board Initiated Complaints (Nov. 4, 2015), http://www.talgov.com/uploads/public/ documents/ethics/pdf/eb-151112-12-initiation-legalopinion.pdf (discussing that it was intended by the legislature that the ethics board be self-regulatory). 616 Stetson Law Review [Vol. 46
City energy audit program.175 Although there were no findings of ethics violations in the audit, there were recommendations made that served to enhance the controls present in the program to prevent real or perceived conflicts of interest.176 The first complaint that wound its way through the probable cause process was one involving the police chief who had developed a personal relationship with another member of the police department.177 The Board examined the matter to determine if the Chief had misused his position in the course of the relationship. The Board did not believe the conduct rose to that level and closed the complaint. This required the Board go into a “shade” meeting as required by sections 112.324(2)(a), (c), (e), Florida Statutes, which provides in pertinent part:
The complaint and records relating to the complaint or to any preliminary investigation held by . . . a Commission on Ethics and Public Trust established by any . . . municipality . . . are confidential and exempt from the provisions of s. 119.07(1) and s. 24(a), Art. I of the State Constitution. . . . Any . . . proceeding conducted by . . . a Commission on Ethics and Public Trust, . . . pursuant to a complaint or preliminary investigation, is exempt from [the provisions of] s. 286.011, s. 24(b), Art. I of the State Constitution, and s. 120.525. The exemptions in paragraphs (a)-(d) apply until: 1. The complaint is dismissed as legally insufficient; 2. The alleged violator
175. Memorandum from T. Bert Fletcher, City Auditor, to Mayor and Members of the City Commission, Inquiry into Potential Conflicts of Interest Regarding City Energy Auditors and Their Secondary Employment (Nov. 12, 2015), available at http://www.talgov .com/uploads/public/documents/ethics/pdf/eb-151215-EA.pdf; see also Final Audit Follow up: Inquiry into Potential Conflicts of Interest Regarding City Energy Auditors and Their Secondary Employment (Report #1611), CITY OF TALLAHASSEE 1–2 (Nov. 12, 2015), https://www.talgov.com/Uploads/Public/Documents/auditing/pdf/fy16/1611.pdf [hereinafter Final Audit Follow-Up] (detailing the concerns of the accusations and then outlining the investigation launched as a result of the accusations). 176. Final Audit Follow-Up, supra note 175. 177. See Rossman, supra note 124, at 6A (noting that the complaint about the police chief was the only complaint that rose to the level of triggering the Board to discuss a possible ethics violation); see also Jeff Burlew, Ethics Complaint Dropped Against TPD Chief DeLeo,TALLAHASSEE DEMOCRAT (Oct. 15, 2015, 7:38 AM ET), http://www.tallahassee.com/story/news/2015/10/14/ethics-complaint-dropped-against-tpd- chief-deleo/73944636/ (explaining the background of the complaint and the procedures followed after receiving the complaint); Jeff Burlew, City Ethics Board Taking Up First Complaint,TALLAHASSEE DEMOCRAT (October 13, 2015, 10:15 PM ET), http://www.tallahassee.com/story/news/2015/10/13/city-ethics-board-taking-up-first- complaint/73877788/ (issuing that the Board had received its first ethics complaint and describing the procedure through which the Board would respond) [hereinafter Taking Up First Complaint]. 2017] One City's Story of Ethics Reform 617
requests in writing that such records and proceedings be made public; 3. The commission determines that it will not investigate the referral; or 4. [A] Commission on Ethics and Public Trust . . . determines, based on such investigation, whether probable cause exists to believe that a violation has occurred.178
The Board explained the reasoning for the “shade” session prior to it taking place.179 At the conclusion of the session, all documents pertaining to the investigation and the final order were immediately provided to the public and news reporters. Additionally, after the session, the Board held a public debrief at the following meeting to refine its complaint investigation process.180 The second complaint that required the Board to go into a “shade” session involved the amount and ongoing payment of a retired Commissioner’s deferred compensation.181 Again, a clear explanation was given to the public for the “shade” session.182 The Board found that the complaint was legally insufficient and closed it.183 As in the first complaint, a public debrief was held regarding the complaint and the Board received additional information from City staff regarding how deferred compensation had been calculated for this Commissioner.184 The Board also recommended penalties for ethics violations that were passed by the City Commission in 2016.185
178. FLA.STAT. §§ 112.324(2)(a), (c), (e) (2016). 179. Oct. 14, 2015 Minutes, supra note 163, at 17. 180. Nov. 12, 2015 Minutes, supra note 143, at 6. 181. Jeff Burlew, City Ethics Board Drops Lightsey Complaint,TALLAHASSEE DEMOCRAT (June 21, 2016, 9:29 PM ET), http://www.tallahassee.com/story/news/2016/06/ 21/city-ethics-board-drops-lightsey-complaint/86213840/ (explaining the nature of the complaint and why the Board voted to toss out the complaint). 182. Notice of Executive Session,CITY OF TALLAHASSEE ETHICS BOARD (June 6, 2016), http://www.boarddocs.com/fla/talgov/Board.nsf/files/AAWH57453AFF/$file/Notice%20of%2 0Executive%20Session%20060616.pdf. 183. May 21, 2015 Minutes, supra note 148, at 3. 184. Independent Ethics Board Agenda,CITY COMMISSION CHAMBER 1 (July 19, 2016), available at http://www.boarddocs.com/fla/talgov/Board.nsf/files/ABVK4U4F4E26/$file/ Ethics%20Board%20Agenda%20July%202016.pdf. 185. “Enforcement mechanisms may include: disciplinary action, liability for damages or injunctive relief, civil fines, perjury prosecution for perjury or other crimes; voiding of a contract; disqualification from contracting with the city; and forfeiture of improper financial benefits.” Johnson, supra note 9, at 759–60 (footnotes omitted); see also ROBERT F. WECHSLER,LOCAL GOVERNMENT ETHICS PROGRAMS:ARESOURCE FOR ETHICS COMMISSION MEMBERS,LOCAL OFFICIALS,ATTORNEYS,JOURNALISTS AND STUDENTS,AND A MANUAL FOR ETHICS REFORM 723–820 (2d ed. 2013) (providing ideas on establishing a 618 Stetson Law Review [Vol. 46
E. Employment of Staff and Ethics Officer
At the Board’s inception, I was the only employee.186 At the third Board meeting, the Board received a report of my activities since commencing the role.187 The Ethics Officer’s job description was also modified to track the new reporting structure for the position and modified responsibilities.188 Throughout the first few Board meetings there was ongoing tension over whether the new Board would re-open a hiring process, do a national search and interview a range of candidates, or decide to allow me to continue to function in the role without going through another hiring process. The concern expressed by critics was whether an ethics officer hired by the City could serve citizens objectively.189 This was the subject of discussion at meetings and by the media.190 However, the Board’s first hiring decision came in the form of retaining outside legal counsel.191 Although I am an attorney and several Board members are attorneys, the consensus of the Board and best practices indicate that an attorney is necessary to represent the Board, whereas the Ethics Officer function is more of an Executive Director role. Soon after the Board counsel was
disciplinary policy for violations of ethics rules); Memorandum from Julie Meadows-Keefe, Independent Ethics Officer, to Independent Ethics Board, Penalties for Ethics Violations (Oct. 28, 2015), available at http://www.talgov.com/uploads/public/documents/ethics/pdf/ eb-151112-10-penalties-memo.pdf (establishing the penalties the Board is authorized to impose for ethics violations); TALLAHASSEE,FLA., DRAFT OF ORDINANCE NO. 16-O-07, (Mar. 2016), available at http://www.talgov.com/uploads/public/documents/ethics/pdf/eb- 160315-16-o-07.pdf (codifying the penalties for ethics violations). 186. Feb. 10, 2015 Minutes, supra note 124, at 2. 187. See Report on Ethics Activities,CITY OF TALLAHASSEE ETHICS ADVISORY BOARD (Mar. 19, 2015), available at http://www.talgov.com/uploads/public/documents/treasurer/ pdf/ethics/ethics-officer-report.pdf (outlining, by month, the duties performed by Ms. Meadows-Keefe). 188. See Job Description: Ethics Officer, CITY OF TALLAHASSEE, available at http://www.talgov.com/uploads/public/documents/treasurer/pdf/ethics/ethics-officer- job%20description.pdf (last visited Apr. 18, 2017) (establishing the duties of the ethics officers as well as the knowledge, abilities, skills, and training an ethics officer must possess). 189. Aug. 20, 2015 Minutes, supra note 124. 190. July 13, 2015 Minutes, supra note 145; see also Jeff Burlew, Ethics Board Facing New Round of Criticisms,TALLAHASSEE DEMOCRAT (Sept. 15, 2015, 4:58 PM ET), http://www.tallahassee.com/story/news/politics/2015/09/15/ethics-board-facing-new-round- criticism/72314558/ (citing conflict of interests concerns regarding the Boards’ members). 191. July 13, 2015 Minutes, supra note 145; see also Burlew, supra note 106 (discussing that the Board hired Jerry Currington as outside counsel to advise the Board); May 21, 2015 Minutes, supra note 148, at 3–4 (providing background on the Board’s decision to retain outside counsel, the purpose hiring outside counsel would provide, and the compensation structure for said outside counsel). 2017] One City's Story of Ethics Reform 619 retained, he opined that the Board could establish its own hiring process, which could include retaining me.192 I was officially hired as the Independent Ethics Officer at a spirited meeting on August 20, 2015.193 I commenced written monthly reporting to the Board in November 2015.194 Currently, these reports include the office’s monthly activities, the budget, the number of complaints received, and, during the election season, a report of the number of contribution requests received.195 There is now one, part-time staff member to provide administrative support to the Ethics Officer and the Board.196 There is also a mechanism to retain investigative services and to hire an advocate to prosecute matters that require a formal hearing.197
F. Administration of Campaign Contribution Refund Program
The Charter Amendment included a provision for a Campaign Contribution Refund program.198 The program allows an individual registered as a City of Tallahassee elector to receive a one-time-per-election-cycle refund of up to twenty-five dollars
192. Letter from Gerald B. Curington, Counsel at Ausley McMullen, to Lila A. Jaber, Chair, Tallahassee Independent Ethics Bd., Hiring Protocol for Ethics Officers (July 30, 2015), available at http://www.talgov.com/uploads/public/documents/treasurer/pdf/ethics/ eb-hire-opinion-150820.pdf. 193. Aug. 20, 2015 Minutes, supra note 124, at 7–10. 194. Nov. 12, 2015 Minutes, supra note 143, at 1. 195. See, e.g., Ethics Board Agenda,CITY OF TALLAHASSEE ETHICS BOARD (Aug. 16, 2016), http://www.boarddocs.com/fla/talgov/Board.nsf/files/ACQKSG5241FF/$file/ Ethics%20Board%20Agenda%20August%202016%20081016.pdf (noting what is included in the Ethics Officer’s report). 196. City Ethics Board, Regular Meeting Minutes,CITY OF TALLAHASSEE ETHICS BOARD 7–8 (Sept. 16, 2015), available at https://www.talgov.com/uploads/public/documents/ethics/ pdf/ethics-board-minutes-150916.pdf [hereinafter Sept. 16, 2015 Minutes]. 197. May 21, 2015 Minutes, supra note 148, at 3. 198. Sean Rossman, Contribution Rebate Program Off to Slow Start,TALLAHASSEE DEMOCRAT (May 11, 2016, 4:42 PM ET), http://www.tallahassee.com/story/news/2016/05/ 11/contribution-rebate-program-off-slow-start/84224062/; see also Refund Program: Tracking Language and Identifying Board Role,CITY OF TALLAHASSEE (Jun. 4, 2015), available at http://www.talgov.com/uploads/public/documents/treasurer/pdf/ethics/eb- refund-program-150604.pdf [hereinafter “Refund Program PowerPoint”] (summarizing the charter amendment campaign contribution program); Modified Campaign Contribution Refund Process PowerPoint,CITY OF TALLAHASSEE (Feb. 16, 2016), http://www.talgov.com/ uploads/public/documents/ethics/pdf/eb-160216-board-pres-re-modified-process.pdf (explaining the steps to be taken for a donor to complete the campaign contribution refund process). 620 Stetson Law Review [Vol. 46 donated to a Mayoral or City Commission candidate.199 The Board is charged with administration of the program and the refunds are paid by the City from general revenue.200 Budgeting presented a challenge because the popularity of the program was an unknown. Twenty thousand dollars was allocated for fiscal year 2016.201 The initial process was revised to streamline for both donors and candidates.202 The program has been controversial and not particularly popular, and it has received only eighteen refund requests as of September 9, 2016.203
G. Ensuring Independence and Impartiality
There is an inherent strain in the relationship between the Board and the City because the City funds the Board, including the salary of Board staff and provision of space.204 However, many similar boards are funded by the entity over whom they oversee.205 The Board strives to be independent and impartial, providing maximum practicable input from citizens and community organizations in spite of the fact that it is funded by the City Commission. Proponents of the Charter Amendment were consistent in their pressure to see the Board stand up as an
199. Refund Program PowerPoint, supra note 198; see also Jan. 19, 2016 Minutes, supra note 124, at 4 (showing that the City Ethics Board discussed the measure and passed a motion to move forward unanimously). 200. Process PowerPoint,CITY OF TALLAHASSEE ETHICS BOARD, available at http://www.talgov.com/uploads/public/documents/treasurer/pdf/ethics/eb-process-150604 .pdf (last visited Apr. 18, 2017); see also City of Tallahassee Ethics Board Campaign Contribution Refund Application 2016 Election Cycle,CITY OF TALLAHASSEE (Sep. 16, 2016), available at http://www.talgov.com/uploads/public/documents/ethics/pdf/eb-cc- refund-app-150916.pdf (identifying the Ethics Board as the recipient of applications for campaign contribution refunds). 201. Budget,CITY OF TALLAHASSEE ETHICS BOARD, available at http://www.boarddocs .com/fla/talgov/Board.nsf/files/A9W38573B89E/$file/Copy%20of%20Ethics%20Working%2 0File%20051016.pdf (last visited Apr. 18, 2017). 202. City of Tallahassee Independent Ethics Board Campaign Contribution Refund Claim Form 2016 Election Cycle,CITY OF TALLAHASSEE, available at http://www.talgov .com/uploads/public/documents/ethics/pdf/eb-160216-ccrefund-pkg-021016.pdf (last visited Apr. 18, 2017). 203. Rossman, supra note 198. 204. Aug. 20, 2015 Minutes, supra note 124, at 7–8. 205. New York’s Conflict of Interest Board has sought for several years to obtain a Charter Amendment to provide it with an independent and protected budget. See Report on the Fiscal Year 2015 Executive Budget for Conflicts of Interests Board,COUNCIL OF THE CITY OF NEW YORK (May 22, 2014), available at http://council.nyc.gov/downloads/pdf/ budget/2015/15/eb/coib.pdf (highlighting a goal to amend the charter to provide the Board with an independent budget to keep the Board looking independent to the public). 2017] One City's Story of Ethics Reform 621 independent entity to the greatest extent possible.206 Additionally, the Board has demonstrated independence by implementing a process for preparing advisory opinions after the Board counsel opined that this was within Board authority.207 The City expressed disagreement with this opinion.208 Although there have been times when the Board’s independence has been questioned, at the end of 2015, Ben Wilcox of Citizens for Ethics Reform stated that the Board had a “good sense of its independence” and that “we have to celebrate the fact that we now have an ethics board where citizens can bring complaints.”209
H. Provision for Maximum Practicable Input From Citizens and Community Organizations
The Board was fortunate that its first chair, Lila Jaber, had served on the Ethics Advisory Panel and had a strong commitment to civic engagement and consensus building. She acknowledged that although civic engagement can be difficult and at times may feel like a personal attack, it was vital to the building process for the Board and the building of public trust.210 The Board imposed no time limits on speakers and would often take public comment throughout the meeting. Citizen suggestions were often incorporated into Board practices and procedures. Specifically, the Board received and incorporated
206. Aug. 20, 2015 Minutes, supra note 124, at 3. 207. See Taking Up First Complaint, supra note 177 (noting that the Ethics Board is in the process of dealing with complaints); see also Keeping the Faith, supra note 8, at 117 (outlining how ethics boards generally offer advisory opinions upon request of municipal employees or officers); Johnson, supra note 9, at 764–65 (opining that cities should have ethics officers and a process for requesting written ethics opinions); Letter from Gerald B. Curington, Counsel at Ausley McMullen, to Richard Herring, Chair, Tallahassee Independent Ethics Bd., Tallahassee Ethics Opinion 2016-1 (Jan 14, 2016), available at http://www.talgov.com/uploads/public/documents/ethics/pdf/eb-160119-legal-opinion- 011416.pdf (summarizing that the Ethics Board has the authority to render advisory opinions when requested); Advisory Opinion Flow Chart,CITY OF TALLAHASSEE (Feb. 16, 2016), available at http://www.talgov.com/uploads/public/documents/ethics/pdf/eb-160216- advisory-opinion-flow-chart-020416.pdf (outlining the process to create an advisory opinion); see also Draft Bylaw: Article XI – Issuance of Advisory Opinions,CITY OF TALLAHASSEE ETHICS BOARD, available at http://www.talgov.com/uploads/public/ documents/ethics/pdf/eb-160315-advisor-opinion-bylaw-draft-3-4-all-edits.pdf (last visited Apr. 18, 2017) (identifying potential authority of the Ethics Board to create an advisory opinion, and outlining the process by which it would be created). 208. Jan. 19, 2016 Minutes, supra note 124, at 2. 209. Rossman, supra note 124, at 1A, 6A. 210. Sep. 16, 2015 Minutes, supra note 196, at 7. 622 Stetson Law Review [Vol. 46 public input regarding the complaint process.211 Additionally, the Board received consistent input from citizens regarding the mindset of board members.212 Related to this, a member of the public supported by other interested persons proposed a pledge to be executed by Board Members.213 The Board counsel determined that the Charter Amendment language did not allow for a mandatory pledge,214 but that Board members could execute a voluntary document––the Board approved a form for a voluntary pledge in August 2016.215 In September 2015, the Board began broadcasting its meetings on a City TV channel and YouTube.216 The Board also seeks to engage with citizens and community organizations. I have spoken at general meetings of these community organizations, such as the League of Women Voters, the Florida Government Bar Association, and local candidate forums, to educate citizens about the Board and items such as the Campaign Contribution Refund Program.
211. See, e.g., Aug. 20, 2015 Minutes, supra note 124, at 1–2 (outlining a request for anonymous ethics complaints). 212. E.g., Sep. 16, 2015 Minutes, supra note 196, at 5–6. 213. Taking Up First Complaint, supra note 177. Sean Rossman, Ethics Board Approves Self-Initiation,TALLAHASSEE DEMOCRAT (Jan. 20, 2016, 6:43 AM ET), http://www.tallahassee.com/story/news/2015/10/13/city-ethics-board-taking-up-first- complaint/73877788/; Oct. 14, 2015 Minutes, supra note 163; Pledge,CITY OF TALLAHASSEE ETHICS OFFICE, http://www.talgov.com/uploads/public/documents/ethics/pdf/ eb-160216-pledge-pkg-021016.pdf (last visited Apr. 18, 2017) (identifying the different pledges for board members, city officials, and others involved with the Ethics Board); City Ethics Board, Regular Meeting Minutes,CITY OF TALLAHASSEE ETHICS BOARD 5 (Dec. 15, 2015), available at https://www.talgov.com/uploads/public/documents/ethics/pdf/eb- 160119-minutes-121515.pdf (requesting that the pledge issue be discussed at the January 2016 meeting). 214. Letter from Gerald B. Curington, Counsel at Ausley McMullen, to Richard Herring, Chair, Tallahassee Independent Ethics Bd., Proposed Ethics Board Member Pledge 1 (June 3, 2016), available at http://www.boarddocs.com/fla/talgov/Board.nsf/files/ AAWH4D4509BE/$file/Informal%20Opinion%20re%20Pledge%20060316.pdf. 215. July 19, 2015 Minutes, supra note 124, at 2–3. 216. See Markowitz, supra note 9, at 606 (stating that in order to be successful, “[p]rinciples of representative democracy require policy to be made in the shadow of public accountability”) (footnotes omitted); City of Tallahassee, Ethics Meeting August 16, 2016 (YouTube video Aug. 17, 2016), https://www.youtube.com/watch?v=3k8O2MajJkU (presenting the full ethics meeting that was held on August 16, 2016); City of Tallahassee, COTNews Featuring WCOT,YOUTUBE, https://www.youtube.com/user/WCOT (last visited Apr. 18, 2017) (providing a channel to watch videos posted by the city of Tallahassee). 2017] One City's Story of Ethics Reform 623
VII. MOVING FORWARD WITH ETHICS REFORM AND TIPS FOR OTHER LOCAL GOVERNMENT ETHICS PROGRAMS.
Lila Jaber, who also served as the First Board Chair, resigned in December 2015.217 The Board elected Florida State University’s appointee, Richard Herring, as Chair in 2016.218 The Chair has continued the practice of robust citizen engagement. He also initiated Board committees to look at issues such as Board procedures and due process, budget, city policies and procedures, transparency, and investigatory techniques.219 What lessons can be learned by looking at the City of Tallahassee’s experience that may be applied to a local government seeking to create or enhance a local government program? 1. Initiating a discussion at the local government level about enhancing ethics compliance is not an indictment on anyone. It is instead a best practice to be proactive and think about your program during a time when there is no glaring issue. If you reside in a community where things are quiet on the ethics front, this is the perfect time to look at processes that can ensure it continues. Having to respond to a crisis with rushed ethics reform will not yield the most desirable effect. Even if we believe we only elect good and moral individuals in our communities, human beings cannot always be relied upon to use good judgment. Rules and guidelines serve as guardrails for public officials and employees. People are even willing to forgive government officials from misconduct if those individuals are generally likeable and committed to reforming their behavior.220
217. Jeff Burlew, Jaber Resigning from Ethics Board,TALLAHASSEE DEMOCRAT (Oct. 14, 2015, 10:31 PM ET), http://www.tallahassee.com/story/news/2015/10/14/ethics- complaint-dropped-against-tpd-chief-deleo/73944636/. There were also concerns expressed by some about her law firm’s prior representation of the City. See Rossman, supra note 124, at 1A, 6A (discussing some of the hurdles the Ethics Board overcame during its first year). See also Sept. 16, 2015 Minutes, supra note 196, at 1 (providing statements by Jaber that her firm did not undertake any representation of the City of Tallahassee while she served on the Ethics Board). 218. Jan. 19, 2015 Minutes, supra note 124. 219. City Ethics Board, Regular Meeting Minutes,CITY OF TALLAHASSEE ETHICS BOARD 5 (Feb. 16, 2016), http://www.boarddocs.com/fla/talgov/Board.nsf/files/A8ZGBX42DC29/ $file/Minutes%20021616.pdf. 220. It can be argued that the main objective of ethics laws is to achieve compliance rather than exact penalties. 624 Stetson Law Review [Vol. 46
2. Citizens want a system of accountability within local government. When an ethical lapse happens, people are often surprised that their city or county does not have its own, coherent ethics codes that are clearly communicated to officials and staff.221 Localities often presume that state ethics codes are sufficient to address community concerns, only to find out later that the community wants higher standards. Hallmarks of a good local ethics program impart consistency, predictability, and fairness.222 3. When initiating a new ethics program, it can be helpful to get a panel of outside experts, as occurred with Tallahassee’s Ethics Advisory Panel. Those experts should review current state ethics laws, charter documents, existing ordinances or codes and policies, and consider how a program may be enhanced or improved.223 Additionally, experts should obtain buy-in of leadership and encourage citizen engagement that is inclusive of and respectful of critics. Do not reinvent the wheel. Look to other jurisdictions and model codes for help.224
What we need is nonpartisan statesmanship and visionary leadership willing to face up to the fact that relying on the individual judgment of each elected official is a failed strategy that guarantees a continuous flow of scandals that discredits their institutions and even the enterprise of democratic government itself. While I wish more emphasis was placed on character rather than compliance, the raw reality is that voters do not consistently demand scrupulous integrity as evidenced by the re-election of people severely stained by scandal.
Michael Josephson, The Peculiar Concept of Ethics Laws, COJ.NET, http://www.coj.net/ departments/ethics-office/docs/the-peculiar-concept-of-ethics-laws.aspx (last visited Apr. 18, 2017). 221. See Johnson, supra note 9, at 725 (finding that few municipalities have a code of ethics to guide their officers and employees). 222. See id. at 726–27 (observing that while the Ethics Code has a limit in being able to cover the ethical conduct for all situations, a well-drafted code can help overcome those limits). 223. See, e.g., Wechsler, supra note 9 (discussing the use of revolving door provisions in cities’ ethics codes); Georgia Municipal Association, Ethics in Government: Charting the Right Course, GMA LEGAL REPORT (July 2010), available at http://gmanet.com/GMASite/ media/PDF/publications/ethics.pdf (providing a sample ethics ordinance and encouraging cities to modify it to fit their specific circumstances). 224. Keeping the Faith, supra note 8, at 61, 66; see also, e.g., Complaint Procedures, CITY OF JACKSONVILLE ETHICS COMMISSION (June 2, 2014), http://www.talgov.com/ uploads/public/documents/treasurer/pdf/ethics/florida-examples.pdf (showcasing examples of programs in Jacksonville and Palm Beach County, Florida). 2017] One City's Story of Ethics Reform 625
4. Realize that an ethics program costs money.225 Hiring someone on a full- or part-time basis to serve as the single-point- of-contact for ethics matters in a local government is probably the most cost-effective method and is a practical solution for localities where an ethics program has not been a point of concentration or has limited resources. In larger local governments, a community may opt for an Inspector General’s Office. Offices of Inspectors are commonly known as “watchdog” agencies and are found at all levels of local, state, and federal government.226 This becomes a more expensive solution. 5. A local ethics program must have enforcement authority to have credibility.227 Although one hallmark of a successful ethics compliance program is a paucity of enforcement actions,228 there will be some community members who will not be satisfied until someone is led from City Hall or Commission Chambers in handcuffs. There must be tools in place to penalize violators. In summation, it is vital for local governments to set out clear principles to help public officials know their proper boundaries, understand the long term implications of their decisions and conduct, and consider how the public will perceive them. Local ethics laws, officials, and boards are not just an academic or window-dressing exercise. Their purpose is not to require more disclosure forms or prohibit officials’ actions merely for the sake of public perception. Instead, communities grappling with local ethics issues should consider the impact of ethics laws
225. See Governmental Ethics Laws, supra note 14, at 187 (“Training, education, and quick advice to government employees, all of which cost money, mean fewer ethical lapses.”). See also Johnson, supra note 9, at 765 (establishing a robust ethics program at the local level may be costly). 226. Mission Statement,MIAMI-DADE COUNTY:OFFICE OF THE INSPECTOR GENERAL, http://www.miamidadeig.org/whatwedo2.htm (last visited Apr. 18, 2017). 227. Marie Louisa Victor, Enforcement: An Indispensable Component in the Success of Municipal Ethics Boards, 18 MUN.LAW. 4, 6 (2004). This stated as follows: Ethics boards without full and effective enforcement power have often been criticized as toothless tigers—and worse. Such boards raise and then dash hopes of prompt and fair adjudication of ethics complaints and thus only increase the public’s cynicism about the honesty and integrity of our public servants. Therefore, municipalities that adopt new ethics laws should do so only if they are prepared to grant their ethics boards the powers and duties outlined above. Anything less may well reap a whirlwind of censure and derision. Id. 228. Governmental Ethics Laws, supra note 14, at 186. 626 Stetson Law Review [Vol. 46 on the officials elected to serve their communities.229 Ethics codes should embody service orientation, procedural fairness, and the ethics of democratic responsibility.230 They should be simple for everyone to understand––officials and citizens alike.231 Rules should be easily accessible for everyone and be the result of collaborative efforts with citizens.232 As the first Board Chair, Lila Jaber, noted at the conclusion of her term, “‘Even though [the Board] was hard to create and not always a pleasant experience for the [C]ity, it was an example of citizen engagement making a difference and then seeing the fruit of their effort.’”233 Localities seeking to enhance or establish an ethics program should expect a similar experience. As it was in Athens, so it is today. Difficult things are worth doing well and have lasting value for years to come.
229. Keeping the Faith, supra note 8, at 66. 230. MIAMI-DADE COUNTY:OFFICE OF THE INSPECTOR GENERAL, http://www.miamidadeig.org/ (last visited Apr. 18, 2017). 231. See generally Conflicts of Interest Board, Basis, Structure, and Administration of Conflicts of Interest (Government Ethics) Laws and Annual Financial Disclosure (Asset Declaration) Laws,CITY OF NEW YORK CONFLICTS OF INTEREST BOARD (Mar. 2003), available at http://www.nyc.gov/html/conflicts/downloads/pdf/visitors.pdf (discussing how to make an effective government ethics program that works); see also Governmental Ethics Laws, supra note 14, at 177–80 (“[E]thics regulations must always be written and interpreted in light of reason, common sense, and everyday experience” and drafters should “know their customer[s]. . . . An ethics provision that is good for a state or major city may devastate a small municipality.”). 232. See Governmental Ethics Laws, supra note 14 (finding that easy access to ethics laws is required for their purpose to be achieved). 233. Rossman, supra note 124, at 6A. FLORIDA’S ACCESSORY DWELLING UNIT LAWS: MITIGATING FLORIDA’S HOUSING WOES THROUGH STATE-ENCOURAGED EXPANSION OF ADU PERMITTING
Sarah A. Gottlieb
I. INTRODUCTION
Millions of baby boomers1 are approaching retirement.2 Members of this group increasingly find themselves in the following predicament: financially or physically unable to maintain a large, single-family home lifestyle—requiring frequent upkeep and driving—yet unwilling to prematurely give up independence for unfamiliar company and surroundings.3
© 2017, Sarah A. Gottlieb. All rights reserved. J.D., cum laude, Stetson Law Review, Stetson University College of Law, 2016; B.A., cum laude, The University of Tampa, 2011. The Author wishes to express her sincere gratitude to Professor Paul Boudreaux for his advisement and support, without which this Article would not have been possible. The Author would also like to thank Katy Womble and the members of Stetson Law Review for their dedication to the publication of this Article. 1. The Baby Boomer Generation includes more than seventy-five million people born between 1946 and 1964. Baby Boomers,HISTORY.COM, http://www.history.com/topics/baby- boomers (last visited Apr. 13, 2017). 2. Patricia E. Salkin, Where Will the Baby Boomers Go? Planning and Zoning for an Aging Population, 32 REAL EST. L.J. 181, 181–82 (2003) [hereinafter Salkin, Baby Boomers] (citing statistics finding that the nation’s elderly population—then 12.4 percent—is anticipated to grow to 20 percent by 2030). 3. ROBIN PAUL MALLOY,LAND USE LAW AND DISABILITY:PLANNING AND ZONING FOR ACCESSIBLE COMMUNITIES 3–5 (2015) (providing various examples of elderly or disabled people struggling to live comfortably due to the traditional ways in which communities are planned and housing is constructed); Patricia E. Salkin, A Quiet Crisis in America: Meeting the Affordable Housing Needs of the Invisible Low-Income Healthy Seniors, 16 GEO. J. ON POVERTY L. &POL’Y 285, 286–87 (2009) [hereinafter Salkin, Quiet Crisis] (describing how some low-income seniors wish to live independently but lack the funds to do so); Patricia E. Salkin, Act Now: Accessory Dwelling Units Can Aid in the Intergenerational Housing Crisis, 1 CAPITAL COMMONS QUARTERLY 13, 13 (2007) [hereinafter Salkin, Intergenerational Housing Crisis]. New Yorkers, for example, prefer to “age in place,” staying “in the community they are familiar with and with people who they are familiar with.” Id. at 13–14. Yet, financial and physical obstacles—such as declining health and unanticipated home maintenance costs—make staying in place difficult. Id. at 13. 628 Stetson Law Review [Vol. 46
Many young adults,4 too, are not well suited for single-family homes in the suburbs.5 Unless “workforce housing”6 can be found, young adults today are often forced to move back in with family or pay high prices for rental apartments.7 There is also some evidence that younger generations are less likely than older generations to ever desire the ideal of the single-family home in the suburbs.8 Instead, newer generations prefer walkability9 and access over seclusion and quiet.10 Despite these facts, single-
4. Young adults, for purposes of this Article, generally refer to the “millennial generation,” those currently aged twenty to thirty-six. See Richard Fry, Millennials Overtake Baby Boomers as America’s Largest Generation,PEWRESEARCH.ORG (Apr. 25, 2016), http://www.pewresearch.org/fact-tank/2016/04/25/millennials-overtake-baby- boomers/ (describing the millennial generation as “those ages 18–34 in 2015”). 5. Post-World War II television shows, such as Leave It to Beaver, suggest that the ideal American lifestyle comes complete with a single-family home. See generally Leave It to Beaver (CBS television series 1957–1963). Only a few decades later, fewer than ten percent of American families fit the seen-on-TV model. STEPHANIE COONTZ,THE WAY WE NEVER WERE:AMERICAN FAMILIES AND THE NOSTALGIA TRAP 23 (1993). In fact, whether this “good old days” model ever existed for any substantial amount of time is a point of controversy. See id. at 28 (“[T]he 1950s family . . . was also a historical fluke, based on a unique and temporary conjecture of economic, social, and political factors.”). 6. Salkin, Intergenerational Housing Crisis, supra note 3, at 14 (describing “workforce housing” as affordable housing for young adults). 7. Id. (“[Y]oung people leaving school and starting on their careers and families are faced with the reality of lack of housing options. Reports are rampant about college graduates moving back home and married children moving back in with parents (or in- laws) in an effort to save money for a home because the income, debt-load and housing costs are not in balance.”). E.g., Jessica Hartogs, Study: Record Number of Young Adults Living with Their Parents, CBS NEWS (Aug. 1, 2013, 5:04 PM), http://www.cbsnews.com/ news/study-record-number-of-young-adults-living-with-their-parents/. 8. Millennials Prefer Cities to Suburbs, Subways to Driveways,NIELSON.COM (Mar. 4, 2014), http://www.nielsen.com/us/en/insights/news/2014/millennials-prefer-cities-to- suburbs-subways-to-driveways.html. See Smart Growth and Economic Success: Investing in Infill Development, EPA.GOV (Feb. 2014), http://www2.epa.gov/sites/production/files/ 2014-06/documents/developer-infill-paper-508b.pdf (citing research showing that younger generations prefer “walkability”). 9. Millennials Prefer Cities to Suburbs, Subways to Driveways, supra note 8. Walkability measures how walkable a certain area is—that is, how likely it is that people will walk instead of drive, given the distances between residences and schools, work places, and shopping. See generally Walkable Neighborhoods,WALK SCORE, https://www.walkscore.com/walkable-neighborhoods.shtml (last visited Apr. 13, 2017). 10. Millennials Prefer Cities to Suburbs, Subways to Driveways, supra note 8 (“Millennials like having the world at their fingertips. With the resurgence of cities as centers of economic energy and vitality, a majority are opting to live in urban areas over the suburbs or rural communities. Sixty-two percent indicate they prefer to live in the type of mixed-use communities found in urban centers, where they can be close to shops, restaurants and offices. They are currently living in these urban areas at a higher rate than any other generation, and [forty] percent say they would like to live in an urban area in the future. As a result, for the first time since the 1920s growth in U.S. cities outpaces growth outside of them.”). See also infra Part II (describing the “new urbanism” movement). 2017] Florida's Accessory Dwelling Unit Laws 629 family homes continue to make up the majority of the nation’s housing stock.11 Consequently, many people of varying demographics struggle to find suitable living arrangements.12 Accessory dwelling units (ADUs) offer a solution for baby boomers and millennials while simultaneously providing benefits to other generations as well.13 ADUs are defined as “small, independent living quarters on single-family lots.”14 They are praised for a variety of benefits: they provide affordable housing to populations with low to moderate incomes or on fixed budgets,15 they provide elderly or disabled populations with accessible living16 and continued independence,17 and they provide homeowners with an additional source of income.18 In addition, ADUs promote environmental sustainability by
11. Emily Badger & Christopher Ingraham, The Most Popular Type of Home in Every Major American City, Charted,WASH.POST (Sept. 21, 2015), http://www.washingtonpost .com/news/wonkblog/wp/2015/09/21/the-most-popular-type-of-home-in-every-major- american-city-charted/ (showing how single-family homes maintain a minority of the housing stock in only a few of the nation’s largest cities). 12. See infra Part III (detailing housing troubles faced by baby boomers and millennials). 13. See id. (describing the benefits of ADUs for middle-aged parents, children, the economy, and the ecosystem). 14. Margaret F. Brinig & Nicole Stelle Garnett, Accessory Dwelling Unit Reforms: Death by a Thousand Paper Cuts?, 37 No. 4 ZONING AND PLANNING LAW REPORT 1, 1 (2014) [hereinafter Brinig & Garnett, Thousand Paper Cuts]. ADUs are sometimes better known as second dwelling units, elder cottages, in-law suites, and granny flats. Id. These units are smaller than the main dwellings they sit next to, often only a few hundred to one-thousand square feet in size. Accessory Dwelling Units: Case Study, HUDUSER.ORG 3– 4, 7, http://www.huduser.org/portal/publications/adu.pdf (last visited Apr. 13, 2017) (providing examples of ordinances specifying minimum ADU sizes). ADUs may be interior, attached, or detached. Id. This Article generally uses the term to refer to any of these types, but tends to focus on the implications of detached units. 15. John Infranca, Housing Changing Households: Regulatory Challenges for Micro- Units and Accessory Dwelling Units, 25 STAN. L. & POL’Y REV. 53, 64 (2014); infra Part III (discussing benefits of ADUs). 16. Margaret F. Brinig & Nicole Stelle Garnett, A Room of One’s Own? Accessory Dwelling Unit Reforms and Local Parochialism, 45 URB.LAW. 519, 532 n.58 (2013) [hereinafter Brinig & Garnett, Reforms and Local Parochialism]. “Accessibility” refers to design standards that allow people with disabilities or with limited mobility to get around more easily. See generally MALLOY, supra note 3, at 6–28 (suggesting various ways communities and local governments might encourage design and construction to promote accessibility). 17. Margaret F. Brinig, Grandparents and Accessory Dwelling Units: Preserving Intimacy and Independence, 22 ELDER L.J. 381, 388 (2015) [hereinafter Brinig, Grandparents]; infra Part III (explaining how ADUs allow elderly residents to live near caregivers, family, and friends without being uprooted). 18. Infra Part III (discussing benefits of ADUs). 630 Stetson Law Review [Vol. 46 allowing shorter commutes,19 encouraging infill,20 and discouraging sprawl.21 Despite their numerous benefits, ADUs are illegal by default in many municipalities due to traditional Euclidian zoning laws.22 Euclidian zoning “supports the view that society functions best when cities and the surrounding land are segregated into districts that strictly limit the uses to which properties there can be put.”23 A neighborhood zoned “single family,” for example, would generally allow only one home per lot; thus, building a second, detached dwelling built on the lot would violate the zoning code.24 To combat this automatic illegality, various municipalities around the country have amended their zoning laws to permit ADUs.25 Some states have passed legislation incentivizing local governments to allow ADUs or even prohibiting local governments from completely precluding ADUs.26 Florida is one of only a few states to pass legislation that incentivizes municipalities to create ADU permitting
19. Id. 20. “Infill . . . is the process of developing vacant or under-used parcels within existing urban areas that are already largely developed.” Infill Development: Completing the Community Fabric, MRSC: LOCAL GOV’T SUCCESS, http://mrsc.org/Home/Explore- Topics/Planning/Development-Types-and-Land-Uses/Infill-Development-Completing-the- Community-Fabric.aspx (last modified Dec. 22, 2016). Infill development can lessen sprawl by “reduc[ing] development pressure on outlying areas, helping to protect lands that serve important ecological functions.” Smart Growth and Economic Success: Investing in Infill Development, supra note 8, at 1. 21. Infranca, supra note 15, at 54–55. Sprawl generally refers to residential development patterns that push single-family home construction into previously undeveloped, rural areas inhabited by farmland, wildlife, and various ecosystems. John G. Mitchell, Urban Sprawl,NAT’L GEOGRAPHIC, available at http://environment .nationalgeographic.com/environment/habitats/urban-sprawl/#page=7 (last visited Apr. 13, 2017). Such growth patterns have created numerous problems, including the loss of two million acres of open space per year. Id. 22. Jaimie Ross, Accessory Dwelling Units: A Smart Growth Tool for Providing Affordable Housing,FLORIDA HOUSING COALITION (Aug. 2016), http://www.flhousing.org/ wp-content/uploads/2016/10/Accessory-Dwelling-Units-A-smart-growth-tool-for-providing- affordable-housing.pdf; Brinig & Garnett, Thousand Paper Cuts, supra note 14, at 4. 23. Eliza Hall, Divide and Sprawl, Decline and Fall: A Comparative Critique of Euclidean Zoning, 68 U. PITT. L. REV. 915, 918 (2007). 24. Ross, supra note 22; see, e.g.,JACKSONVILLE,FLA., CODIFIED ORDINANCES § 656.304 (2017) (providing permitting by right for “single-family” homes and other enumerated uses in the “rural residential” district). 25. See infra Part II (detailing ADU provisions throughout the United States). 26. Infranca, supra note 15, at 69; Brinig & Garnett, Reforms and Local Parochialism, supra note 16, at 534–35; see infra Part II (discussing how California, Vermont, and Washington prohibit municipalities from banning ADUs). 2017] Florida's Accessory Dwelling Unit Laws 631 ordinances.27 In this sense, Florida is ahead of the curve. However, Florida’s attempt to expand the use of ADUs through legislation has fallen short:28 ADUs remain underutilized. In particular, ADUs have not developed in the way Florida legislatures envisioned.29 Part II of this Article describes the types of laws, policies, and ways of thinking that tend to hinder ADU growth. It then recounts the ways in which ADUs have managed to grow nationally. Part III of this Article shifts the focus to Florida, explaining how ADUs can benefit state residents. It also addresses ADU opponents’ concerns. It then examines the current Florida laws and assesses why the laws fall short of their intended goals. Part IV discusses solutions for how Florida’s laws could be improved to encourage more ADU permitting. Ultimately, this Article suggests that Florida create compromise between proponents and opponents of ADUs through amendment of the current laws.
II. THE GROWTH OF ADUs
A. Euclidian Zoning Patterns
Euclidian zoning30 has both created the need for31 and stymied the potential growth of ADUs.32 Euclidian zoning is a traditional form of land use planning which “reflects a
27. Fewer than ten other states have enacted similar legislation. Brinig & Garnett, Thousand Paper Cuts, supra note 14. 28. Infra Part III. 29. Id. 30. Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365 (1926). This important decision upholding an ordinance that restricted how properties within a municipality could be used gave local governments the “okay” to plan communities as they wished, provided that any laws restricting property use maintained some relation to the “general welfare” and were not “clearly arbitrary and unreasonable.” Id. at 380–83, 395, 397. The Euclid Court justified its decision by explaining that land use restrictions, such as allowing certain uses in one area and not in others, fall within a local government’s “police power”—the authority to create laws and regulate for the “public welfare.” Id. at 387; Hall, supra note 23, at 918 n.21. 31. See infra notes 39–41 (discussing how ADUs can make better use of underutilized, mandated minimum lot sizes). 32. See Brinig & Garnett, Reforms and Local Parochialism, supra note 16, at 520–21 (“Since zoning laws frequently segregate apartments and single-family homes, and almost always prohibit their co-location on a single residential parcel, reforms authorizing ADUs are necessary to bring these existing ADUs into regulatory compliance and to encourage the construction of more.” (footnotes omitted)). 632 Stetson Law Review [Vol. 46 longstanding value judgment that the appropriate way to order different land uses is to separate them from one another into single-use zones [or districts].”33 Courts are highly deferential toward local governments regarding land use issues. Challenged ordinances are reviewed under rational basis review34 and are rarely invalidated.35 The justification for such deference lies in the belief that land use and zoning are “intensely local” issues, understood best by the people who reside in the particular municipality at issue.36 Euclidian zoning and the judicial deference that accompanies it are blamed for numerous land use patterns posing modern housing difficulties.37 Neighborhoods are, for the most part, free to implement requirements that by their nature make housing less affordable, resulting in the exclusion of certain classes of people.38 Minimum lot requirements,39 for example, require
33. Hall, supra note 23, at 918 (quoting Nicole Stelle Garnett, Ordering (And Order ln) The City, 57 STAN. L. REV. 1, 4 (2004)). See Brinig & Garnett, Reforms and Local Parochialism, supra note 16, at 520–21 (discussing the evolution of ADUs over the past decade). Theoretically, a municipality zoned strictly in Euclidian fashion would have no two dissimilar uses side by side: offices would comprise one part of town, businesses another, and residences another, with each district being separated by roads or other markers. See Contrast with Euclidian Zoning, 36 N.J. PRAC., LAND USE LAW § 6.3 (“There is no allowance in the Euclidian scheme for situations involving lands having qualities which do not lend themselves to uniform development.”). To accomplish this uniformity, municipalities create “zones” or “districts” where land may be used only for designated purposes. DAVID L. CALLIES,ROBERT H. FREILICH &THOMAS E. ROBERTS,CASES AND MATERIALS ON LAND USE 77–82 (6th ed. 2012) (internal quotation marks omitted). 34. Rational basis review, utilized by the Court in Euclid to uphold the Village’s zoning ordinance, “grants great deference to legislative judgments because the link between the means and the purpose of the legislation is satisfied by any conceivable rational basis, regardless of whether it was the actual basis of the legislative action.” Ashira Pelman Ostrow, Judicial Review of Local Land Use Decisions: Lessons from RLUIPA, 31 HARV. J.L. & PUB.POL’Y 718, 730 (2008). 35. Exclusionary Zoning and Equal Protection, 84 HARV. L. REV. 1645, 1647–49 (1971). 36. See Marc B. Mihaly, Living in the Past: The Kelo Court and Public-Private Economic Redevelopment, 34 ECOLOGY L.Q. 1, 8–9 (2007) (“The variety and situational nature of land use development frustrate the courts . . . resulting in the inability to form generally applicable rules. Judicial deference, as well as judicial references to the American federalist experiment featuring the states as ‘laboratories,’ may implicitly recognize this varied and intensely local nature of land use.” (internal footnotes omitted)). 37. See, e.g., Hall, supra note 23, at 916–17 (blaming Euclidian zoning for sprawl, socioeconomic segregation, and crime rates); Exclusionary Zoning and Equal Protection, supra note 35, at 1647–49 (blaming exclusionary tactics, like minimum lot sizes, floor area restrictions, and apartment exclusions on the judicial deference that resulted from Euclid). 38. See generally S. Burlington Cnty. N.A.A.C.P. v. Mt. Laurel Tp., 456 A.2d 390, 411, 415 (N.J. 1983) (detailing the New Jersey Supreme Court’s unprecedented approach to amend such exclusion, requiring that local governments offset exclusionary tactics by 2017] Florida's Accessory Dwelling Unit Laws 633 potential homebuyers to purchase more space than they need,40 inevitably pricing many out of certain markets.41 Though such zoning procedure no longer fits the needs of newer generations42—many of whom tend to live alone or in small households,43 cannot afford to purchase or maintain large homes on large lots,44 and who want to remain in their communities past retirement-age45—it is unlikely zoning patterns will change rapidly. This is because most homeowners would prefer that their local governments continue to employ exclusionary strategies, such as minimum lot sizes in order to maintain the status quo.46 providing at least a “fair share” of affordable housing somewhere within each of the states’ municipalities). 39. It is common for municipalities to require that homes be built on lots of large sizes, such as a half-acre or more. See generally Susan Ellenberg, Judicial Acquiescence in Large Lot Zoning: Is It Time to Rethink the Trend?, 16 COLUM. J. ENVTL. L. 183, 184–86 (1991) (discussing the harms of minimum lot size provisions). 40. Infranca, supra note 15, at 86 (stating that “there is evidence that zoning imposes minimum lot sizes larger than what individuals would freely choose”). 41. Exclusionary Zoning and Equal Protection, supra note 35, at 1645–46 (describing how large minimum lot sizes pose difficulty for home searchers by requiring them to buy more space than needed); S. Burlington Cnty. N.A.A.C.P., 336 A.2d at 717 (“[Many people] cannot afford the only kinds of housing realistically permitted in most places—relatively high-priced, single-family detached dwellings on sizeable lots. . . . [T]he effect of Mount Laurel’s land use regulation has been to prevent various categories of persons from living in the township because of the limited extent of their income and resources.”). 42. Infranca, supra note 15, at 54–56 (stating that “[c]hanging household compositions render the existing housing stock inadequate for many households”). 43. As the United States population has increased, the average household size has decreased, and spacious homes have been rendered impractical for many. U.S. Household and Families: 2010,CENSUS.GOV (April 2012), http://www.census.gov/prod/cen2010/briefs/ c2010br-14.pdf; Accessory Dwelling Units Model State Act and Local Ordinance, AARP 8, http://assets.aarp.org/rgcenter/consume/d17158_dwell.pdf (last visited Apr. 13, 2017) (stating that households are becoming smaller, in part, because “[p]eople are living longer, more people are staying single longer, and married couples are having fewer children”); Infranca, supra note 15, at 57–58. 44. See Brinig & Garnett, Reforms and Local Parochialism, supra note 16, at 532 (explaining how traditional suburban homes may be too costly or “wasteful” for elderly people to maintain); Salkin, Intergenerational Housing Crisis, supra note 3, at 14 (explaining how younger Americans are less able to afford traditional suburban homes). 45. See Brinig & Garnett, Reforms and Local Parochialism, supra note 16, at 532 (explaining that traditional suburbs make it difficult for elderly people to “age in place” because they generally are not “suited for [people] with less mobility”). 46. See id. at 522 (describing parochialism in land use as “well documented” and stating that many homeowners are “protective of[] single family residences”). Exacerbating the problems of judicial deference and parochialism is the fact that the United States practices neolocality, a residence pattern that ‘encourages newly married couples to establish a household independent of either extended family.’ Zoning restrictions serve to encourage and reinforce neolocality, setting limitations on property use from the type of structure that can be built to the number of people who can reside therein. 634 Stetson Law Review [Vol. 46
Indeed, the concerns and opinions of a neighborhood’s current residents are the driving force behind why legislatures continue to hold firm on such measures.47 Many solutions have been proposed to correct such outdated methods of planning stemming from Euclidian tradition.48 Of these, laws encouraging ADU growth may be one of the more modest, easily managed solutions. This is because ADUs do not require a fresh slate; they can simply supplement zoning and development already in place.49 Even supplementation, however, requires proactive legislation.50 Though such legislation is often slowed due to local resistance,51 certain parts of the United States have seen progress, particularly where state legislatures become involved.
B. ADU Provisions in the United States: Getting Around Euclid
Recognizing the benefits of ADUs, some municipalities began amending their zoning codes52 to permit ADUs “by right” or otherwise, such as through conditional or special use permitting.53 Due to local resistance, however, some
Jessica Dixon Weaver, Grandma in the White House: Legal Support for Intergenerational Caregiving, 43 SETON HALL L. REV. 1, 59 (2013) (internal footnotes omitted). 47. Such exclusion is closely related to the “NIMBY,” or “Not In My Backyard” principle. See, e.g., 2 N.Y. ZONING LAW &PRAC. § 20:01 (2015) (discussing reported findings of the Advisory Commission on Regulatory Barriers to Affordable Housing). 48. For example, the new urbanism movement strays from traditional Euclidian zoning models by integrating various land uses, such as by combining shopping, services, and housing in one area. See Brinig & Garnett, Reforms and Local Parochialism, supra note 16, at 527–28 (describing the new urbanism movement); New Urbanism Division, AM.PLAN.ASS’N, https://www.planning.org/divisions/newurbanism/ (last visited Apr. 13, 2017) (describing the need to depart from “restrictive conventional” zoning). New urbanists have, in addition, suggested increasing the use of ADUs. Brinig & Garnett, Reforms and Local Parochialism, supra note 16, at 529. 49. See Ross, supra note 22, at 17 (stating that ADUs are “built where there is existing infrastructure, making greater use of the already developed land”); Brinig & Garnett, Reforms and Local Parochialism, supra note 16, at 522 (stating that ADUs “represent an excellent vehicle for overcoming [local] parochialism . . . [because they] preserve the zoning pattern preferred by most homeowners—that is, those dominated by, and protective of, single family residences”). 50. See supra note 22 and accompanying text (explaining how most current zoning automatically disallows the addition of ADUs). 51. Discussed infra Part III. 52. Brinig & Garnett, Reforms and Local Parochialism, supra note 16, at 556–57; Weaver, supra note 46, at 61. For example, Fauquier County, Virginia provides an “administrative permit for an Efficiency Apartment.” Accessory Dwelling Units: Case Study, supra note 14. 53. Conditional or special use permitting “introduces some flexibility to a fairly static and rigid Euclidean zoning scheme” by requiring a “case-by-case evaluation by an 2017] Florida's Accessory Dwelling Unit Laws 635 municipalities only began permitting after state governments stepped in and either passed legislation encouraging local governments to permit ADUs or passed legislation prohibiting local governments from entirely excluding ADUs.54 Five states have created laws incentivizing municipalities to create ADU permitting procedures.55 Only California, Vermont, and Washington prohibit municipalities from entirely excluding ADUs.56
1. Solutions and Sidesteps
California has remained a leader in providing expansive protections for ADUs since the initial enactment of a 1982 statute that “forbade [municipalities from enacting] ordinances precluding [ADUs],”57 unless the municipality could show that allowing ADUs “may limit housing opportunities of the region” and could create “specific adverse impacts on the public health, safety, and welfare.”58 A 2003 amendment of the law provided further protection for ADUs by requiring municipalities to “either adopt an ADU ordinance incorporating certain requirements[,] . . . implement a state legislative scheme, or demonstrate that a local ADU ordinance would actually limit housing opportunities.”59 The amendment further required a ministerial permitting process for all ADU applications, regardless of whether a municipality enacted its own ADU ordinance and regardless of any “local ordinance regulating the issuance of variances or special use permits.”60 Ministerial
administrative zoning body” to determine whether a specific use is in fact compatible with its surroundings. CALLIES,FREILICH &ROBERTS, supra note 33, at 123 (internal quotation marks omitted). 54. Infranca, supra note 15, at 69; Brinig & Garnett, Reforms and Local Parochialism, supra note 16, at 534–35. 55. Brinig & Garnett, Reforms and Local Parochialism, supra note 16, at 536. Florida, Hawaii, Maryland, Massachusetts, and Rhode Island each passed legislation encouraging municipalities to permit them. Id. at 521 n.14, 536. 56. Id. at 535–36. “Vermont’s statute provides that ‘no bylaw shall have the effect of excluding’ as a permitted use one ADU that is within or appurtenant to an owner-occupied ADU.” Id. at 536. (internal citation omitted). Washington has gone a bit further and taken the unusual step of “requir[ing] that [local] governments incorporate provisions allowing accessory apartments.” Id. at 535–36 (internal citations omitted). 57. Brinig & Garnett, Thousand Paper Cuts, supra note 14, at 4. 58. Id. (internal quotation marks omitted). 59. Id.;CAL.GOV’T CODE § 65852.2(a)(3) (2003) (amended Jan. 2017). 60. CAL. GOV’T CODE § 65852.2(a)(3) (2003) (amended Jan. 2017). 636 Stetson Law Review [Vol. 46 permitting—in contrast to discretionary permitting—is designed to minimize local parochialism61 and “improve certainty and predictability”62 by requiring that decision-makers adhere to a checklist of “predictable, objective, fixed, quantifiable and clear standards.”63 Initially, California’s expansive pro-ADU provisions appeared to leave no question that local California governments should embrace ADUs. Yet, not all California cities welcomed the spirit of California’s ADU legislation. Some local California governments “imbedded many costly regulatory requirements . . . that dramatically curtail[ed] the likelihood that ADUs w[ould] actually be developed.”64 For example, some municipalities required “costly off street parking” and “limits on the ability of owners to lease ADUs.”65 California most recently amended its ADU regulatory scheme in January 2017.66 The 2017 amendments appear to strengthen protection of ADUs by further restricting municipal regulatory authority in certain regards. The statute keeps in place the mandated ministerial permitting process67 and deletes language formerly allowing municipalities to enact ordinances precluding ADUs if justified by findings that such may “limit housing opportunities” and create “specific adverse impacts on
61. California adopted a mandatory ministerial permitting process because “state legislation reflected a concern that [local government officials] might abuse . . . approval power by requiring that ADU approval be discretionary.” Brinig & Garnett, Reforms and Local Parochialism, supra note 16, at 541–42, 545, 567. 62. Memorandum from Cathy E. Creswell, Deputy Director, Division of Housing Policy Development, to Planning Directors and Interested Parties, Second-Unit Legislation Effective January 1, 2003 and July 1, 2003 at 5 (Aug. 6, 2003), available at http://abag.ca .gov/planning/housingneeds/pdf/secondunits/hpd_memo_ab1866.pdf. 63. Id. 64. Brinig & Garnett, Reforms and Local Parochialism, supra note 16, at 541, 546–47. 65. Id. at 547. Other local requirements included “minimum lot size requirements,” “restrictions on the maximum size of the ADU,” and “design requirements.” Id. 66. CAL.GOV’T CODE § 65852.2 (West 2017). 67. CAL.GOV’T CODE §§ 65852.2(a)(3), (4). The Statute also adds the following language: [ADU ordinances] shall provide an approval process that includes only ministerial provisions for the approval of accessory dwelling units and shall not include any discretionary processes, provisions, or requirements for those units. . . . In the event that a local agency has an existing accessory dwelling unit ordinance that fails to meet the requirements of this subdivision, that ordinance shall be null and void upon the effective date of the act adding this paragraph and that agency shall thereafter apply the standards established in this subdivision for the approval of accessory dwelling units, unless and until the agency adopts an ordinance that complies with this section. Id. § 65852.2(a)(4). 2017] Florida's Accessory Dwelling Unit Laws 637 the public health, safety, and welfare that would result from allowing” ADUs.68 The amended statute does not require municipalities to enact ADU ordinances; however, a municipality that chooses to enact an ADU ordinance must comply with certain requirements, including that it “[d]esignate areas . . . where accessory dwelling units may be permitted.”69 The “designation of areas may be based on criteria, that may include, but are not limited to, the adequacy of water and sewer services and the impact of [ADUs] on traffic flow and public safety.”70 The amended statute further requires that local parking requirements “shall not exceed one parking space per unit or per bedroom.”71 Municipalities are prohibited from imposing parking restrictions for an ADU if the ADU is located “within one-half mile of public transit” or “within an architecturally and historically significant” district, is “part of the existing primary residence or an existing accessory structure,” or when “on-street parking permits are required but not offered to the occupant of” the ADU or if “a car share vehicle [is] located within one block” of the ADU.72 Municipal ordinances which do not comport with the new amended statute are “null and void” as of January 2017.73 As the 2017 amendments are new, time is needed to tell whether the law will sufficiently remedy the prior gaps in the legislation and generate greater expansion of ADUs as intended by state legislators.74 For now, however, California clearly stands firm behind the use of ADUs as a tool to help rectify the state’s housing shortage.75
68. Brinig & Garnett, Thousand Paper Cuts, supra note 14, at 4 (internal citation and quotation marks omitted); Accessory Dwelling Unit Memorandum,CAL.DEP’T OF HOUS.& COMMUNITY DEV. at 22 (Dec. 2016), available at http://www.hcd.ca.gov/policy- research/docs/2016-12-12-ADU-TA-Memo.docx.pdf. 69. CAL. GOV’T CODE § 65852.2(a)(1) (“A local agency may, by ordinance, provide for the creation of accessory dwelling units in single-family and multifamily residential zones. The ordinance shall do all of the following: (A) Designate areas within the jurisdiction of the local agency where accessory dwelling units may be permitted.”). 70. Id. § 65852.2(a)(1)(A). 71. Id. § 65852.2(a)(1)(D)(x)(I). 72. Id. §§ 65852.2(d)(1)–(5). 73. Accessory Dwelling Unit Memorandum, supra note 68, at 5, 8. 74. See id. at 7 (“ADU law and recent changes intend to address barriers, streamline approval and expand potential capacity for ADUs recognizing their unique importance in addressing California’s housing needs.”). 75. See supra note 57 and accompanying text (examining California’s role in the national ADU reform movement). 638 Stetson Law Review [Vol. 46
Predictably, research revealed no legislation in any state that mandates or recommends that municipalities ban ADUs. However, municipalities in states that do not have laws prohibiting the exclusion of ADUs are free to leave local zoning codes in place (potentially excluding ADUs by default due to Euclidian zoning provisions)76 or ban ADUs outright through a municipal ordinance.77 Thus, proponents of ADUs continue to advance the suggestion of state legislation in order to encourage use of the units.78
2. A Model Solution
Drawing from the most effective state and local pro-ADU provisions available at the time, the American Association of Retired Persons (AARP) and the American Planning Association created a permitting guide for municipalities and states, entitled the Accessory Dwelling Units Model State Act and Local Ordinance.79 The publication recognizes that ADUs “can be a valuable addition to a community’s housing stock”80 and states that “[the] guide [is] for communities that want to make the benefits of ADUs available to households of all ages.”81 The publication recommends that state acts strongly encourage (not mandate) municipalities to adopt ADU permitting ordinances.82 Like the prior California law, the model state act suggests enacting a provision which states that “[n]o municipality shall adopt an ordinance that totally prohibits ADUs,” unless the municipality can explain its reasoning.83 The model state act
76. See supra Part II(A) (explaining how Euclidian zoning excludes ADUs). 77. See, e.g., Ben Kleine, New Accessory Dwelling Units Banned in Parker,NEWS HERALD, http://www.newsherald.com/1.454533 (last updated Mar. 22, 2015, 2:22 PM) (banning ADUs in Parker, Florida); VILL. OF PLEASANT PRAIRIE,WIS., CODIFIED ORDINANCES §§ 420–30 (2005) (“[A]ccessory structures shall not be used as a dwelling unit.”). 78. Brinig & Garnett, Reforms and Local Parochialism, supra note 16, at 527. 79. Accessory Dwelling Units Model State Act and Local Ordinance, supra note 43, at 5. 80. Id. 81. Id. 82. Id. at 17–18. Neither California nor Florida currently mandate that municipalities proactively adopt their own ADU ordinances. See supra notes 57–75 (California law) and infra notes 136–155 (Florida law). 83. Compare CAL.GOV’T CODE § 65852.2(c) (2003) (amended Jan. 2017) (formerly stating that “no local agency shall adopt an ordinance which totally precludes second units within single-family or multifamily zoned areas unless the ordinance contains findings acknowledging that the ordinance may limit housing opportunities of the region and 2017] Florida's Accessory Dwelling Unit Laws 639 allows municipalities to determine in what areas ADUs will be permitted, and offers guidelines for how to make those determinations.84 It encourages the creation of an approval process and discusses the differences between permitting by right and permitting by using a conditional permitting process.85 The model local ordinance also suggests that municipalities choose from optimal, favorable, and minimal provisions drafted in the model.86 Pro-ADU legislation is slowly gaining traction, providing more housing options87 to people who might otherwise be displaced. Future ADU law drafters may do well to draw from the model provisions, above, as well as any lessons learned from previously enacted state or municipal law.
III. ADUs IN FLORIDA
A. The Need for ADUs in Florida
Legislation encouraging ADUs has likely picked up due to the myriad of benefits the units provide, such as affordable housing and continued independent living. In fact, more common use of ADUs would be of particular benefit to Florida residents. As the third most populous state in the nation,88 Florida stands to benefit greatly from ADUs because of its continued growth.89
further contains findings that specific adverse impacts on the public health, safety, and welfare that would result from allowing second units within single-family and multifamily zoned areas justify adopting the ordinance”), with Accessory Dwelling Units Model State Act and Local Ordinance, supra note 43, at 21 (stating that “[n]o municipality shall adopt an ordinance that totally prohibits ADUs within single-family or multi-family zoned areas unless [it finds that doing so may] limit housing opportunities[,] . . . [have] specific adverse impacts on the . .. single-family and multi-family zoned areas[,] . . . [and] [e]xplains why such units cannot be accommodated within the present utility and service capacities of existing single-family neighborhoods”). The AARP Model Act takes the position that its provision is stronger (more protective of ADUs) than California’s prior law because the Model Act requires municipalities to justify its position with technical reports. Accessory Dwelling Units Model State Act and Local Ordinance, supra note 43, at 21. 84. Accessory Dwelling Units Model State Act and Local Ordinance, supra note 43, at 17–18. 85. Id. at 18. 86. Id. at 28–29. 87. See Accessory Dwelling Units: Case Study, supra note 14, at 3–7 (showing how successful ADU ordinances have created an increase in permit applications). 88. Florida Passes New York to Become the Nation’s Third Most Populous State, Census Bureau Reports, U.S. CENSUS BUREAU (Dec. 23, 2014), available at www.census .gov/newsroom/press-releases/2014/cb14-232.html. 89. Id. 640 Stetson Law Review [Vol. 46
ADUs have the potential to benefit specific Florida generations, beginning with the retired and elderly. People aged sixty-five and older make up 17.3 percent of Florida’s population.90 This number is expected to double by 2040.91 How Florida will find appropriate housing for so many elderly residents is an anticipated challenge,92 particularly since most want to “age in place.”93
[Older adults] would choose not to move to retirement havens, elder communities, and certainly not to nursing homes. As long as they are able, they would like to remain in familiar surroundings with their longtime neighbors and cherished possessions. This is closely associated with the elderly’s desire to maintain independence with its associated trappings—the driver’s license, the set of keys, the small patch of land in which to garden. But the housing in which they live may not be suited for one with reduced mobility and may be too expensive (and wasteful) to maintain.94
A small, detached unit built on the same lot as a current single-family home is one solution. Rather than move to an unfamiliar, manufactured setting,95 retirement-age adults can do
90. Florida’s Economic Future and the Impact of Aging,FLA.LEGISLATURE OFF. OF ECON.&DEMOGRAPHIC RES. 5 (Mar. 17, 2014), http://edr.state.fl.us/Content/ presentations/economic/FlEconomicFuture&theImpactofAging_3-17-14.pdf (explaining that in 2010, Florida had the greatest number and percentage of people aged sixty-five and older of all states that had a median age of forty or above); Stanley K. Smith, The Baby Boom and the Aging of Florida’s Population,BUREAU OF ECON.&BUS.RES., U. OF FLA. (Feb. 25, 2015), https://www.bebr.ufl.edu/population/website-article/baby-boom-and- aging-florida%E2%80%99s-population: [T]he greatest impact . . . may be yet to come—especially in retirement states such as Florida. The huge national increase in the number of people in their [fifties, sixties], and [seventies] over the next several decades will lead to substantial increases in the number of older persons moving to Florida. . . . [L]arge increases in Florida’s older population between 2010 and 2050 [are projected]. The proportion aged [sixty-five plus], which fluctuated between 17 and 18 [percent] between 1990 and 2010, is projected to increase to 21.7 [percent] by 2020, to 25.7 [percent] by 2030, and to 26.6 [percent] by 2050. E.g., Salkin, Baby Boomers, supra note 2, at 182. 91. Florida’s Economic Future and the Impact of Aging, supra note 90, at 11. 92. Smith, supra note 90. See generally Salkin, Baby Boomers, supra note 2, at 183 (discussing influential factors). 93. Brinig, Grandparents, supra note 17, at 387. 94. Id. at 387–88. 95. Weaver, supra note 46, at 60 (“ADUs allow aging grandparents who may be exhibiting some health issues to maintain a level of independence without the high costs of moving to assisted living and nursing home environments.”). 2017] Florida's Accessory Dwelling Unit Laws 641 any of the following: build an ADU on their own property and rent either it or the main dwelling to supplement a fixed income;96 move into an ADU on a friend or relative’s property;97 or build an ADU on their own property to allow relatives or caregivers to move into it or the main dwelling.98 Each option provides some solution for continued independence, increasing the likelihood that an elderly resident will be able to age in place. Florida’s middle-age population can potentially benefit from an elderly parent’s use of an ADU because of the support and help elderly parents may provide to their families.99 For example, grandparents can provide security and care for grandchildren who may otherwise not have had supervision because their parent is working.100 One might assume that a family choosing to take care of an elderly relative or seeking help with childrearing from a grandparent can simply have the older person move in to the main dwelling. While this may sometimes be appropriate, studies show families are often happier with and more appreciative of one another when they have the opportunity to retreat to their
96. Tom Sightings, Get Extra Income from Real Estate, U.S. NEWS &WORLD REPORT (Mar. 4, 2014, 10:36 AM), http://money.usnews.com/money/blogs/on-retirement/2014/03/04/ get-extra-income-from-real-estate (suggesting that retirees supplement income through real estate investments). 97. See Brinig & Garnett, Reforms and Local Parochialism, supra note 16, at 529–30 (stating that ADUs “enable age integration by enabling older Americans to remain independent longer than they might if independence required upkeep on a single-family home”). Renting an ADU might allow such a person to downsize while continuing “to live in the community they are familiar with and with people who they are familiar with.” Salkin, Intergenerational Housing Crisis, supra note 3, at 13–14. Similarly, those with declining health conditions that “do not necessitate moves to assisted living and nursing home environments” can maintain independence by living near family. Id. at 13. 98. Accessory Dwelling Units Model State Act and Local Ordinance, supra note 43, at 10 (giving an example of an elderly “homeowner with Alzheimer’s [who] was able to trade ADU quarters for medical services from an ADU tenant, a nurse, who was also delighted by the arrangement”). 99. Brinig, Grandparents, supra note 17, at 382 (“Families with children can take advantage of the child care, good advice, and love provided by their parents without suffering the inconvenience of sharing homes with them.”). 100. Id. at 387–40; Weaver, supra note 46, at 10–11 (“Grandparents’ roles in the lives of their families have been increasing over the last decade. A record forty-nine million Americans [or 16.1 percent] live in a family household that contains at least two adult generations, or a grandparent and at least one other generation.”); Frank Bass, Fewer Home Alone as Census Sees 39% Drop in Latchkey Kids,BLOOMBERG (June 11, 2013, 12:00:01 AM EDT), http://www.bloomberg.com/news/articles/2013-06-11/fewer-home- alone-as-census-sees-39-drop-in-latchkey-kids (stating that at least one in four parents, nationally, have grandparents or other relatives help take care of children after school). 642 Stetson Law Review [Vol. 46 own space.101 At least one study shows that “[w]hile living with one’s adult children seems to signal a decline in health, living close to, but not with, one’s children, positively affects the elderly person’s health and longevity.”102 Such living arrangements are likely better for middle-aged adults as well, who may perceive that they are “[t]aking care of both minor children and elderly parents[, which] undoubtedly adds stress.”103 Thus, it seems ADUs provide the best compromise by allowing both independence and caregiving in measured doses.104 Florida’s younger generations also stand to gain from easier access to ADUs. Housing options for millennials and low to middle-income households are not bountiful in Florida,105 and the state has somewhat of a reputation for chasing away young people.106 This is problematic because young people may leave familiar places and bring their skills and abilities to more affordable or welcoming cities.107 ADUs would provide affordable housing and an incentive for young people to stay,108 which, in turn, would benefit the Florida market. In addition to paying rent at an affordable rate, the young person may have the benefit of becoming part of a community that might otherwise be out of their price range. For example, an ADU vacancy might allow a teacher to move into the district where he or she works, rather than have to commute a long distance due to lack of affordability.109 The ability to build a
101. See Brinig, Grandparents, supra note 17, at 389–91 (examining statistics to determine the sociological effects of older residents living with versus near younger family members). 102. Id. at 392–93 (emphasis added). 103. Id. at 384. 104. Id. at 381–82. 105. See Kathryn Vasel, Most and Least Affordable Rental Markets for New Grads, CNN MONEY (May 20, 2015, 10:23 AM ET), http://money.cnn.com/2015/05/20/real_estate/ least-affordable-rental-markets/ (listing Tampa and Miami as two of the least affordable cities for recent graduates among the twenty-five largest housing markets in the United States). 106. See, e.g., Deborah Acosta, Brain Drain? Many Young South Floridians Seek Brighter Economic Prospects Elsewhere,MIAMI HERALD (Dec. 12, 2011, 5:00 AM), http://www.miamiherald.com/news/local/community/miami-dade/article1939204.html (detailing the local trend). 107. Id.; Jacob Davidson, The 15 Most Affordable Cities for Millennials,TIME (Aug. 3, 2014), http://time.com/money/3070910/15-most-affordable-cities-millennials/. 108. George W. Liebmann, Suburban Zoning—Two Modest Proposals, 25 REAL PROP. PROB.&TR. J. 1, 6–7 (1990); Infranca, supra note 15, at 55 (“[M]icro-units a[re] a means through which expensive cities can attract and retain young professionals.”). 109. See Accessory Dwelling Units,MASS.GOV, http://www.mass.gov/envir/smart_growth 2017] Florida's Accessory Dwelling Unit Laws 643 second unit may even encourage some to become homeowners110— current and aspiring Florida property owners may feel better about such an investment if they are allowed to supplement their income with rent.111 Besides housing, ADUs provide more subtle, but important, benefits. Florida is a known offender of sprawl and maintains other environmental issues.112 ADUs can preserve Florida’s environment by preserving open space; rather than continue to build into untouched areas (creating sprawl), new housing can be accomplished by the process of infill.113
B. Addressing Opponent Concerns
ADUs are not without their critics. Like other innovative land use proposals, ADUs have garnered outspoken opponents who worry about the effect new development may have on their neighborhoods. Some of these opponent concerns predictably smell of protectionism and “NIMBYism”114—the kind of thinking that tends to reinforce Euclidian zoning norms and encourage maintenance of the status quo.115 These concerns, as well as some of opponents’ more rational concerns, may be rebutted. Still other concerns, though well founded, can be assuaged through compromise.116 One primary concern among opponents is that allowing a permitting process for ADUs will result in “massive overhaul of
_toolkit/pages/mod-adu.html (last visited Apr. 13, 2017) (explaining how ADUs can provide housing for teachers and other public sector employees who might not otherwise be able to afford living in the area where they work). 110. See William E. Gibson, Florida Home Ownership Stays Low,SUNSENTINEL (Aug. 3, 2013), http://articles.sun-sentinel.com/2013-08-03/news/fl-home-ownership-bust- 20130804_1_home-ownership-homeownership-rate-mike-larson (discussing the recent downturn in home ownership). 111. Infranca, supra note 15, at 82. 112. See John Kennedy, Florida’s Booming Population Risks Sprawl Ahead,PALM BEACH POST (Sept. 15, 2016, 5:26 PM), http://www.mypalmbeachpost.com/news/state-- regional-govt--politics/florida-booming-population-risks-sprawl-ahead/ IK6i44kzQm1nessXosyxcJ/ (discussing current and potential issues for sprawl in Florida). 113. Infranca, supra note 15, at 54–55; Dawn Withers, Article, Looking for a Home: How Micro-Housing Can Help California, 6 GOLDEN GATE U. ENVTL. L.J. 125, 139–44 (2012). 114. See supra note 47 (explaining that NIMBY is an acronym for “not in my back yard”). 115. See supra Part II (describing Euclidian zoning, exclusionary tactics, and the NIMBY relation). 116. Infra Part IV. 644 Stetson Law Review [Vol. 46 the [local] zoning code[s]” and “harm to neighborhood character.”117 This contention is easily rebutted. As mentioned earlier, ADU inclusion is one of the more mild alternatives to Euclidian zoning because it supplements patterns already in existence.118 Nothing about an ADU permitting process would have the power to substantially affect a local government’s zoning procedure; in fact, most zoning codes already allow some accessory structures (like garages or sheds) “by right” or through a conditional use process.119 An ADU permitting process would simply add to local government’s flexibility to plan. In addition, the units themselves can hardly be considered novel or extraordinary: ADUs were once commonplace in American towns.120 As such, it is also very unlikely that the addition of ADUs would result in a substantial change to a neighborhood. Because they are small and may be required to match the materials and colors of the main dwelling,121 ADUs hardly appear out of the ordinary and may even “offer hidden density [because they are] not readily apparent from the street.”122 ADU opponents also point to concerns about overcrowding, heavier traffic, congested parking, and burdens on infrastructure.123 These concerns are more practical, but also are likely misplaced due to the changing nature of modern households.124 There are few studies analyzing the effect of ADUs on neighborhoods, making it difficult to conclude definitively whether opponents’ concerns will ever come to fruition.125 However, the “[e]xisting research . . . suggests that ADUs have less of an effect on neighborhoods than critics expect.”126
117. Brinig & Garnett, Reforms and Local Parochialism, supra note 16, at 550. 118. Supra note 49 and accompanying text. 119. See supra Part II (describing zoning techniques throughout the nation). 120. Accessory Dwelling Units: Case Study, supra note 14, at 1 (describing ADUs as a “common feature in single-family housing” before World War II). 121. Discussed infra Part IV. 122. Infranca, supra note 15, at 55 n.5 (quoting Karen Chapple et. al., Ctr. For Community Innovation at the Inst. Of Urban and Regional Development, Yes in My Backyard: Mobilizing the Market for Secondary Units 1 (2011)). 123. Infranca, supra note 15, at 65–66. 124. Infra note 126. 125. Infranca, supra note 15, at 66. 126. Id. at 66–67. Perhaps this has something to do with the fact that U.S. households are smaller than ever. “In 2010, 31.2 million households consisted of one person living alone. This represents a 4.0 million increase in one-person households since 2000.” U.S. Household and Families: 2010, supra note 43, at 9 (internal footnote omitted); Infranca, supra note 15, at 58. Consequently, it might be argued that the overall decrease in 2017] Florida's Accessory Dwelling Unit Laws 645
Due to the fact that data on this point is lacking, opponents may have a valid concern assuming that density has the potential to increase past what current planning provides. However, this can be managed. A forward-thinking compromise between proponents and opponents of ADUs—for example, state-funded infrastructure or transportation studies—may ease concern and keep the door open for ADUs.127 The final concern of ADU opponents includes worries about transient neighbors and the potential for crime.128 For example, residents may want assurance that their neighbors are not renting units on a nightly basis or to traveling guests.129 This, too, is manageable and may be addressed with legislation, as discussed below. There is a final argument that cuts against the concerns of opponents: ADUs are steadily being built, despite zoning laws that render them incompatible.130 Knowingly or unknowingly, thousands of U.S. residents violate local law by building ADUs.131 The concern with these units is, of course, safety. Because the units are built surreptitiously, communities do not check them for code compliance.132 Creating a permitting process for ADUs would result in substantially safer dwellings while simultaneously addressing opponents’ concerns: housing officials would ensure an
household size offsets any gain made by one or two people occupying an ADU. U.S. Household and Families: 2010, supra note 43, at 6 (showing that the traditional “[h]usband-wife family household” decreased from 55.2 percent of families in 1990 to 48.4 percent of families in 2010); Infranca, supra note 15, at 56–58 (describing the “mismatch” between homes and households). See also supra notes 39–41 (describing how people are often forced to buy lots larger than they would choose). 127. Infra Part IV. 128. Brinig & Garnett, Reforms and Local Parochialism, supra note 16, at 550. 129. See, e.g., Josh Boatwright, Web-based Room Rentals Enrich Some Tampa Area Homeowners, Anger Others,TBO.COM (May 26, 2015), http://www.tbo.com/news/business/ web-based-room-rentals-enrich-some-tampa-area-homeowners-anger-others-20150526/ (raising resident concerns about frequent neighborhood rentals). 130. Withers, supra note 113, at 132–33 (stating that thousands of units in California— prior to the more recent amendments of the state ADU statute—have been built illegally); Brinig & Garnett, Reforms and Local Parochialism, supra note 16, at 537 (discussing illegal ADU units, including an estimated 115,000 built in New York City between 1990 and 2000). 131. Withers, supra note 113, at 132–33; Brinig & Garnett, Reforms and Local Parochialism, supra note 16, at 547–48; Infranca, supra note 15, at 54, 77–78; Michele Lerner, Demand Rises for Properties That Can House More Than One Generation,WASH. POST (Sept. 30, 2015), http://www.washingtonpost.com/realestate/demand-rising-for- properties-that-can-house-more-than-one-generation/2015/09/29/9d6f7042-50bd-11e5- 8c19-0b6825aa4a3a_story.html. 132. Withers, supra note 113, at 133. 646 Stetson Law Review [Vol. 46
ADU met housing codes and other safety requirements,133 while zoning officials would ensure that the ADU aesthetically matched the principal dwelling134 and complied with other predetermined standards. The potential benefits of ADUs far outweigh any perceived negatives. This is particularly true when one considers that a permitting process would only serve to regulate and bring into compliance what is happening out of sight.135 As such, Florida should encourage the increased permitting and use of ADUs whenever feasible.
C. The Florida ADU Laws
Florida’s current legislation encourages—rather than mandates—municipalities to permit ADUs.136 In 2002, Florida voters passed a constitutional amendment encouraging municipalities to provide tax incentives to homeowners who build ADUs by “[a]llowing [those] who add living quarters for a parent or grandparent to have all or part of the value of the new construction deducted from their assessment.”137 In 2004, the Florida legislature added section 163.31771 to Title XI of Chapter 163 of the Florida Statutes “to promote the use of accessory dwelling units as an affordable rental option for
133. Id. 134. See Accessory Dwelling Units Model State Act and Local Ordinance, supra note 43, at 42–43 (providing for a provision where zoning officials may require certain aesthetic standards). 135. Withers, supra note 113, at 133. 136. See FLA. STAT. § 163.31771(1) (2016) (“[T]he Legislature finds that it serves an important public purpose to encourage the permitting of accessory dwelling units in single-family residential areas. . . .”); Id. § 193.703(1) (explaining how counties may approach reductions in assessment for living quarters of parents or grandparents). 137. Ronald H. Kauffman, Bleeding Grandparent Visitation Rights, 86-OCT FLA. B.J. 42, 46 n.54 (2012); FLA. STAT. § 193.703:
[A] county may provide for a reduction in the assessed value of homestead property which results from the construction or reconstruction of the property for the purpose of providing living quarters for one or more natural or adoptive parents or grandparents of the owner of the property or of the owner’s spouse if at least one of the parents or grandparents for whom the living quarters are provided is at least 62 years of age [and that such a] reduction may be granted . . . only to the owner of homestead property where the construction or reconstruction is consistent with local land development regulations. 2017] Florida's Accessory Dwelling Unit Laws 647 very-low-, low- and moderate-income residents.”138 The Statute provides that Florida’s “local government[s] may adopt an ordinance to allow accessory dwelling units in any area zoned for single-family residential use.”139 It encourages municipalities to create such ordinances by allowing a municipality’s ADU count— if constructed in accordance with section 163.31771—to “apply [the ADU units] toward satisfying the affordable housing component of the housing element in the local government’s comprehensive plan.”140 The Statute further requires that any ordinance adopted pursuant to the Statute require an affidavit from the applicant “attest[ing] that the unit will be rented at an affordable rate to an extremely-low-income, very-low-income, low- income, or moderate-income person.”141 In 2014, Florida Senator Wilton Simpson proposed a bill that would “authorize” property owners to build ADUs for disabled or elderly family members, even if local ordinances or comprehensive plans provided that property owners may not do so.142 The bill died in the Senate.143 A 2007 report to the Florida legislature evaluating the effects of section 163.31771 indicated that in the three years since its passage by municipalities, the 2004 law was not followed in the way that legislatures had hoped.144 The report found that just 44 of the 290 Florida municipalities studied permitted rentals of ADUs.145 Other municipalities explicitly banned ADUs by ordinance, did not adopt provisions to overcome traditional zoning that disallowed them, or permitted ADUs but did not
138. FLA.DEP’T OF COMMUNITY AFF., ACCESSORY DWELLING UNITS REPORT TO THE FLORIDA LEGISLATURE 2–3 (2007). The Statute defines an ADU as “an ancillary or secondary living unit, that has a separate kitchen, bathroom, and sleeping area, existing either within the same structure, or on the same lot, as the primary dwelling unit.” FLA. STAT. § 163.31771(2)(a). 139. FLA.STAT. § 163.31771(3). 140. Id. § 163.31771(5). Other state law mandates that Florida municipalities describe in the “housing element” of their comprehensive plans how they will consider providing affordable housing. See Id. § 163.3177(6)(f). 141. Id. § 163.31771(4); FLA.DEP’T OF COMMUNITY AFF., ACCESSORY DWELLING UNITS REPORT TO THE FLORIDA LEGISLATURE, supra note 138, at 6. 142. S. Res. 644 Gen. Assemb., Reg. Sess. (Fla. 2014). The bill proposed to “authoriz[e] certain property owners to construct accessory dwelling units for exclusive occupancy by specified seniors, disabled persons, or the caregivers of such persons under certain circumstances.” Id. 143. Id. 144. FLA.DEP’T OF COMMUNITY AFF., ACCESSORY DWELLING UNITS REPORT TO THE FLORIDA LEGISLATURE, supra note 138, at 2–4. 145. Id. at 18–20. 648 Stetson Law Review [Vol. 46 allow them to be rented.146 Only one municipality enacted an ADU permitting ordinance explicitly furthering the aims of section 163.31771, to provide for affordable housing.147 Florida municipalities that do provide for ADU permitting vary widely in their processes for doing so. For example, Hillsborough County, Florida allows ADUs by special use permit, while other Florida municipalities permit them “by right.”148 In addition, the varying ordinances sometimes provide for very different minimal standards—for example, St. Petersburg, Florida does not allow cooking facilities in ADUs, while Hillsborough County, Florida expressly allows space to be utilized for cooking.149 Florida’s two current laws, though well-intentioned, have not done as much as they could to encourage the creation of local ADU permitting ordinances.150 A variety of factors, explained in turn below, play a part. The Constitutional Amendment151 allowing for a reduction in assessment for ADU builders is no doubt good for homeowners already allowed by municipal ordinance to build ADUs. However, it gives no benefit to property owners who would like to build ADUs but cannot because of local law.152 While the Amendment
146. Id. at 9–10, 21. 147. Id. at 18. A phone call and email to Florida’s Division of Community Development indicates this report has not been updated. A search of the municipalities listed that did not permit ADUs in 2007 have since changed to allow ADUs, though not necessarily in accordance with section 163.31771. 148. HILLSBOROUGH CNTY., FLA., CODIFIED ORDINANCES § 6.11.02 (2009); FLA.DEP’T OF COMMUNITY AFF., ACCESSORY DWELLING UNITS REPORT TO THE FLORIDA LEGISLATURE, supra note 138, at 3 (“Local zoning codes vary regarding whether accessory dwelling units are permitted versus conditional uses.”). 149. CITY OF ST.PETERSBURG,FLA., CODIFIED ORDINANCES § 16.50.010.5.5 (2011); HILLSBOROUGH CNTY., FLA., CODIFIED ORDINANCES § 6.11.02 (2009). It would appear problematic that municipalities can set such different standards, particularly when “[t]he concept of an [ADU] is to have an additional complete residence, meaning a place for sleeping, bathing, and eating independent of the primary home.” Ross, supra note 22, at 17 (emphasis added). 150. While there are certainly more municipalities with ADU permitting statutes now than there were in 2007, few are based on section 163.31771 and its affordability provisions. See, e.g.,COCOA,FLA., CODIFIED ORDINANCES Art. XIII, § 6(A) (2017) (“No accessory building which contains living quarters shall be built on any lot in any residential district except servants quarters for persons, other than the immediate family, employed on the premises.”);APOPKA,FLA., CODIFIED ORDINANCES § 7.02.01 (2016) (providing for a “granny/guest cottage” without mention of affordable rents). 151. Codified as FLA.STAT. § 193.703. 152. FLA.STAT. § 193.703. The law requires that a reduction only be granted where construction “is consistent with local land development regulations.” Id. Nothing in the 2017] Florida's Accessory Dwelling Unit Laws 649 may further incentivize property owners who are already incentivized to build, it does nothing to incentivize property owners who cannot obtain permitting for ADU construction in the first place.153 Florida Statutes, section 163.31771 is problematic for a number of reasons. First, section 163.31771 maintains a misplaced focus on affordability for very-low to moderate-income people. The Statute does not allow municipalities, which may not otherwise initiate studies on their own, to recognize other various benefits of ADUs.154 Further, the statute’s narrow focus on affordability is inharmonious with the Constitutional Amendment, which focuses on the encouragement of units for elderly persons.155 It would seem that if the legislature found it important to incentivize property owners to finance ADUs for elderly residents, it would incentivize municipalities to allow the building of such units in the first place.156 Even if the legislature correctly identified affordability as the sole focus of importance for section 163.31771, its logic remains flawed. The Statute overlooks people who do not classify as “moderate income”157 or lower, but who could still benefit (financially or otherwise) from ADU rental. The Statute does not address the occasion where a property owner may decline the offer of rent, or instead ask to barter for chores or childcare help
statute trumps local ordinances or authorizes a property owner to build inconsistently with local law. Id. 153. Id. 154. See supra Part III(A) (explaining the various benefits of ADUs, particularly for Floridians). Compare FLA.STAT. § 163.31771(1) (focusing legislative findings on only one benefit of ADUs—affordability), with Accessory Dwelling Units Model State Act and Local Ordinance, supra note 43, at 15–16 (listing, under legislative findings in the state model act, twelve distinct benefits of ADUs) and R.I. GEN.LAWS § 42-128-8.1 (making mention of students, the elderly, and people with disabilities in addition to affordability). 155. FLA.STAT. § 193.703. 156. See supra Part II (explaining how Florida’s Constitutional Amendment does nothing to permit ADUs; rather, the amendment only helps property owners who are already allowed by local ordinances to build). 157. FLA.DEP’T OF COMMUNITY AFF., ACCESSORY DWELLING UNITS REPORT TO THE FLORIDA LEGISLATURE, supra note 138, at 17 (defining “‘[m]oderate-income persons’ [as] one or more natural persons or a family, the total annual adjusted gross household income of which is less than 120 percent of the median annual adjusted gross income for households within the state, or 120 percent of the median annual adjusted gross income for households within the metropolitan statistical area”); State & County QuickFacts, CENSUS.GOV, https://www.census.gov/quickfacts/table/PST045216/12,00 (last visited Apr. 13, 2017) (listing Florida’s median household income as $47,507). 650 Stetson Law Review [Vol. 46 in exchange.158 In addition, a municipality that decides to enact an ordinance pursuant to the Statute may hinder ADU growth in more affluent neighborhoods. While an affluent homeowner could build an ADU and rent it at a rate that would be far more “affordable” than other units in the vicinity, the structure may not qualify under the Statute because the person able to afford the rental rate may be above the moderate income requirement.159 Finally, and perhaps most problematic, the Statute’s lack of mandatory language or additional incentives makes it unlikely that any municipality will go out of its way to enact ADU ordinances pursuant to the state law. While the Statute’s lone incentive gives a municipality greater choice in how to fulfill its obligation under other state law,160 it accomplishes little to produce knowledge and acceptance of ADUs. The Statute gives little to municipalities that they did not already have; in the absence of state law forbidding ADUs, municipalities have always had the power to choose whether to “adopt an ordinance to allow accessory dwelling units.”161 Absent any mandatory language in section 163.31771, nothing stops Florida municipalities from ignoring or banning ADUs. Further, unlike the AARP model act, section 163.31771 does not suggest provisions or provide model guidance. Consequently, Florida municipalities that do have ADU ordinances vary widely.162 This leaves open the potential problem of municipalities regulating an ADU’s construction or use to the
158. At least one Florida municipality has struggled with section 163.31771’s affordability language; Nassau County, Florida, argued over what might happen if a property owner wanted to allow someone in their ADU without paying rent: “ ... suggested changing the language of the affidavit to say that it would be occupied by someone who was not paying rent; or if it were, it would be to low income people.” Nassau County Meeting Minutes, Tab C An Ordinance of the Board of County Commissioners of Nassau County, Florida Amending the Code of Ordinances to Encourage the Provision of Affordable Housing by Amending the Land Development Code in Accordance with the Comprehensive Plan, Feb. 17, 2015, available at http://www.nassaucountyfl.com/ DocumentCenter/View/11692; see supra Part III (describing how an ADU-dweller might also benefit the principal homeowner). 159. FLA.STAT. § 163.31771; see Accessory Dwelling Units, supra note 109 and accompanying text (schoolteacher example). 160. Supra Part III (describing section 163.31771’s single incentive). 161. FLA.STAT. § 163.31771(3); FLA.DEP’T OF COMMUNITY AFF., ACCESSORY DWELLING UNITS REPORT TO THE FLORIDA LEGISLATURE, supra note 138, at 9; Ross, supra note 22. 162. FLA. DEP’T OF COMMUNITY AFF., ACCESSORY DWELLING UNITS REPORT TO THE FLORIDA LEGISLATURE, supra note 138, at 2–3. 2017] Florida's Accessory Dwelling Unit Laws 651 point of infeasibility, such as some local governments were accused of doing in California after the ADU statute was revised in 2003.163 Senator Simpson’s 2014 proposed legislation would have likely also fallen short of recognizing the full potential of ADUs.164 The proposal would have mandated some action on the part of municipalities by requiring they allow ADUs for certain people; however, it, like section 163.31771, would have been too narrow in scope, creating “authorization” only for certain groups and not others.165 Although Florida is only one of a few states to take any stance on ADUs, its efforts have not resulted in meaningful change. The simple acts of enabling municipalities and providing them with one incentive is not enough to create the change the legislature wished to see. Florida should consider revising its current legislation to promote greater construction and utilization of ADUs.
IV. FLORIDA SOLUTION: COMPROMISE BY REVISION OF STATUTE
Florida can overcome many of the issues with its current ADU laws and encourage greater production of the units by making some revisions to its existing laws. First, Florida should
163. Brinig & Garnett, Reforms and Local Parochialism, supra note 16, at 523–24 (examining the ways in which some California municipalities responded to the 2003 state mandate that local governments ministerially consider ADU applications): This seeming deregulatory success story masks hidden barriers that dramatically suppress the number of ADUs constructed. . . . Localities acting under the state mandate to implement ADU reforms have responded to local political pressures by . . . imposing burdensome procedural requirements that are contrary to the spirit, if not the letter, of the state-law requirement that ADUs be permitted ‘as of right,’ requiring multiple off-street parking spaces, and imposing substantive and procedural design requirements. Taken together, these details can represent de facto prohibitions—especially for the elderly and lower income individuals who are the supposed beneficiaries of the state ADU mandate. In Florida, many communities that allow the construction of ADUs do not allow them to be rented; others allow construction and rental of ADUs, but require they be built without cooking facilities. FLA.DEP’T OF COMMUNITY AFF., ACCESSORY DWELLING UNITS REPORT TO THE FLORIDA LEGISLATURE, supra note 138, at 10. 164. S. Res. 644 Gen. Assemb., Reg. Sess. (Fla. 2014). 165. Id. (allowing “authorization” of ADUs for seniors, persons with disabilities, and some others). 652 Stetson Law Review [Vol. 46 reconcile its two current statues to ensure they operate in harmony with each other. Florida can also broaden the most recent statute’s purpose and scope in order to give municipalities better information about the benefits of ADUs. Most importantly, Florida should create additional incentives for municipalities to encourage ADUs and provide sample language that municipalities can easily draw from to enact their own ordinances.
A. Harmonize Section 193.703 and Section 163.31771
Section 193.703 and section 163.31771 should be amended to complement one another. Section 193.703 could be expanded so that it offers a reduction in new building assessment (resulting in tax breaks) not only to homeowners who build ADUs for certain relatives as currently provided for under the statute, but also to homeowners who create ADUs for any purpose listed in section 163.31771’s expanded findings.166 This might include tax breaks for property owners who build ADUs for anyone requiring care (whether a grandparent or friend with a disability) or who build ADUs with the purpose of renting them at an “affordable”167 rate. To address opponents’ concerns about transient neighbors, section 163.31771 (and any other legislative incentives) should expressly exclude state benefits for property owners who build ADUs for purposes such as short-term vacation rentals.168
B. Broaden Section 163.31771’s Purpose and Scope
A revised statute with additional legislative findings and terms relating to the additional benefits of ADUs may encourage municipalities with concerns other than affordability to begin permitting ADUs. The AARP model state act provides an excellent example statement describing the beneficial aspects of
166. Discussed supra. 167. Affordable should be redefined to expand beyond very-low-, low-, and middle- income. See supra Part III (discussing Florida’s flawed logic on affordability). 168. Such provisions are one way to ensure that ADUs are not built for the purpose of accommodating a short-term rental business. See Boatwright, supra note 129, at 4 (“In Florida, rental contracts of less than six months require a variety of businesses licenses as well as state sales tax and local tourist development tax.”). Rather, the new legislative findings should explicitly encourage long-term rentals. 2017] Florida's Accessory Dwelling Unit Laws 653 the units.169 Indeed, other states that have enacted ADU legislation took time to explain the broader benefits of these units.170
C. Revise Section 163.31771 by Providing Mandatory Language, Additional Incentives, and Suggested Provisions
Florida should revise section 163.31771 to encourage municipalities to create ordinances pursuant to statute. In revision, the legislature should provide additional incentives and model language from which local governments may draw, facilitating enactment of municipal laws. Mandatory action requiring municipalities to enact local law allowing ADUs171 would probably be the quickest way to ensure more widespread coverage of ADUs. However, the local nature of land use and zoning172 may dissuade some states from taking this step. A more subtle way to include some mandatory provisions would be to require municipalities to enact a ministerial permitting process, rather than a discretionary permitting process.173 This would at least discard some of the issues related to potential overregulation.174 Florida can also enact a reporting requirement, mandating that municipalities send information annually to the state about how many ADU applications have been submitted, how many ADUs were permitted, and how many ADUs were denied.175
169. Accessory Dwelling Units Model State Act and Local Ordinance, supra note 43, at 15. 170. See, e.g., Massachusetts Model Bylaw for Accessory Dwelling Units, COMMONWEALTH OF MASS. 1, http://www.mass.gov/envir/smart_growth_toolkit/bylaws/ ADU-Bylaw.pdf (last visited April 13, 2017) (providing model language which states an intent to “[p]rovide older homeowners with a means of obtaining rental income, companionship, security, and services, thereby enabling them to stay more comfortably in homes and neighborhoods they might otherwise be forced to leave,” encourage “housing units in single-family neighborhoods that are appropriate for households at a variety of stages in their life cycle” and to “[p]rovide housing units for persons with disabilities”). 171. See supra note 56 (describing, for example, the Washington law); Accessory Dwelling Units Model State Act and Local Ordinance, supra note 43, at 21 (providing similar language in its models). 172. See generally supra Part II (detailing the current landscape of local land use and zoning policies). See also Accessory Dwelling Units Model State Act and Local Ordinance, supra note 43, at 17 (describing the controversy over mandating or persuading). 173. See supra Part II (describing California’s ministerial process). 174. Id. (describing why California chose a ministerial permitting process over a discretionary one). 175. Accessory Dwelling Units Model State Act and Local Ordinance, supra note 43, at 26 (suggesting annual reporting requirements). Providing such reports would at the least 654 Stetson Law Review [Vol. 46
Short of enacting more mandates, the Florida legislature should provide greater incentives for municipalities to create ADU ordinances, in addition to the current incentive of allowing municipalities to count ADUs rented to very-low to moderate- income people to count toward affordable housing quotas.176 Local governments may then be more likely to enact ADUs under the provisions of the state statute, thereby allowing the benefits of ADUs to be recognized.177 Fiscal incentives might prove particularly effective.178 For example, Florida could provide a certain amount of funding for every certain number of ADU applications approved under a local government’s ordinance enacted pursuant to the state statute.179 Such funds could be used to study the effect of ADU occupancy in particular communities. Funds could also be set aside for public transportation and infrastructure improvements. Any funds donated to a municipality’s public transportation or infrastructure pool should result in local government spending on updates and improvements as density increases, which should appease ADU opponents concerned about overcrowding and infrastructure burdens. Another way to incentivize creation of municipal ADU ordinances is to provide local governments with ready-made ordinance language. Revised section 163.31771 could include recommended provisions for local governments to easily enact.180 These provisions should be thoughtful, having considered compromises between proponents and opponents of ADUs discussed above. To address issues that most concern opponents, Florida should include “strongly suggested” model language. For
help the state collect better statistical evidence of ADUs and may help the legislature draft provisions further encouraging ADU-permitting beyond those suggested here. 176. FLA.STAT. § 163.31771 (2016). 177. See supra Part III (explaining how most current Florida ADU ordinances were not enacted pursuant to section 163.31771, do not necessarily require ministerial permitting, and vary greatly in their provisions). 178. See Accessory Dwelling Units: Case Study, supra note 14, at 3–4, 7 (stating that growth of ADUs requires “fiscal incentives,” among others). 179. To ensure accuracy, and for better record-keeping, Florida might require municipalities to send annual reports to the state. Accessory Dwelling Units Model State Act and Local Ordinance, supra note 43, at 26. 180. See, e.g., Accessory Dwelling Units Model State Act and Local Ordinance, supra note 43, at 46–47 (showing a choice of “favorable,” “optimal,” and “minimal” provisions). Massachusetts is one state that has drafted its own model ordinance for municipalities to encourage greater approval of ADUs. See generally Massachusetts Model Bylaw for Accessory Dwelling Units, supra note 170 (discussing model bylaws). 2017] Florida's Accessory Dwelling Unit Laws 655 example, Florida should strongly recommend that municipalities require that an “ADUs[] appearance . . . match the architecture and materials of the principal dwelling,”181 and require homeowners to live in one of the two dwelling units.182 Florida might further compromise by suggesting levels of regulation similar to the AARP model ordinance.183 For example, in deciding whether to require additional off-street parking,184 a municipality could choose from one of several options in the state’s model ordinance. A “favorable” provision might require no additional off-street parking requirement (thus making it easier for homeowners to construct ADUs), while a “minimal” provision might require no more than one or two additional one off-street parking spaces per additional living unit.185 This approach should help ease opponents’ concerns by showing that a municipality has thought about how much additional parking necessity ADU residents might realistically bring,186 while, at the same time, suggesting parking measures that do not overburden owners and make it impossible to build.187 Providing varying levels of language would, potentially, result in local government enacting
181. Brinig & Garnett, Reforms and Local Parochialism, supra note 16, at 522. This would address opponents’ concerns, ensuring that “the neighborhoods themselves . . . not significantly change in appearance.” Id. 182. Id. (“[S]ince the homeowner/landlord typically lives on the same property as the ADU . . . there should be better screening and supervision of tenants.”); Accessory Dwelling Units Model State Act and Local Ordinance, supra note 43, at 10 (requiring a homeowner to stay on premises should help address opponents’ concerns about noise and potential criminality). 183. See, e.g., Accessory Dwelling Units Model State Act and Local Ordinance, supra note 43, at 46–47 (showing a choice of “favorable,” “optimal,” and “minimal” provisions). 184. At issue because “onerous parking requirements . . . can render it impossible for certain property owners to situate an ADU on a lot or to avoid violating maximum lot coverage or impermeable surface regulations.” Infranca, supra note 15, at 88; see also supra Part II (discussing overregulation in California). 185. See, e.g., Accessory Dwelling Units Model State Act and Local Ordinance, supra note 43, at 46–47 (showing a choice of “favorable,” “optimal,” and “minimal” provisions, including suggestions for parking); Infranca, supra note 15, at 88 (discussing how “onerous parking requirements . . . can render it impossible for certain property owners to situate an ADU on a lot”). 186. See, e.g., Accessory Dwelling Units Model State Act and Local Ordinance, supra note 43, at 46–47 (showing optimal, favorable, and minimal provisions for parking). A municipality could choose which model parking provision to enact based on a state-funded study conducted to assess the impact of ADUs on a certain area. See FLA.STAT. § 163.31771 (2016) (discussing the procedures required to adopt a local ADU ordinance and apply for building permits). 187. See Accessory Dwelling Units Model State Act and Local Ordinance, supra note 43, at 46 (discussing “onerous” parking requirements). 656 Stetson Law Review [Vol. 46 ready-made language rather than creating innovative language for the potentially hidden purpose of hindering ADU growth.188 In addition to suggesting optimal, favorable, and minimal parking provisions, the revised statute can suggest language that addresses in which zones ADUs may be permitted;189 what an ADU’s floor area ratio (FAR) may be; and when an ADU may be built.190 ADU opponents particularly worried about “character” changes191 might be more receptive to ADU permitting if there were also provisions suggesting choices on setback, lot coverage, doorway orientations, and fencing.192 Finally, Florida can encourage municipalities to adopt ADU permitting ordinances by generating publications and toolkits similar to those created by award-winning ADU programs in some California municipalities.193 Such resources should answer frequently asked questions and help municipalities and homeowners navigate a new and potentially tedious process.
V. CONCLUSION
ADUs are replete with benefits for local governments, communities, and various age groups. Encouragement of the units in Florida can help solve the state’s current and impending housing problems. States and municipalities have the opportunity to create helpful legislation underscoring the benefits of ADUs while adding provisions to satisfy opponents of the units. Florida can do this by taking a first step toward improving its legislation. By offering greater incentives to municipalities and property owners and providing recommended ordinance
188. See supra Part II, at n.75 (discussing California’s hidden regulations.) 189. For example, single-family residential zones only; single-family residential zones with minimum lot sizes of .25 acres; single-family and multi-family residential only; or, all residential zones; etc. 190. See, e.g., Accessory Dwelling Units Model State Act and Local Ordinance, supra note 43, at 41 (“[Optimal provision] An ADU may be developed in either an existing or a new dwelling unit. . . . [Favorable provision] An ADU may be developed in a dwelling unit that has been completed for at least three years. . . . [Minimal provision] An ADU may be developed in a dwelling unit that has been completed for at least [specify] years.”). 191. See generally supra Part III (discussing specific common concerns of ADU opponents). 192. Accessory Dwelling Units Model State Act and Local Ordinance, supra note 43, at 36–50 (suggesting levels of provisions for each). 193. See, e.g., Accessory Dwelling Units: Case Study, supra note 14, at 3–4 (describing, for example, the ADU program in Santa Cruz, California, which provided an “ADU Plan Sets Book” and an “ADU manual”). 2017] Florida's Accessory Dwelling Unit Laws 657 language, Florida might see greater use of ADUs enacted pursuant to the state statute.
THE MODERN FAMILY:* WHY THE FLORIDA LEGISLATURE SHOULD REMODEL ITS ANTILAPSE STATUTE FOR WILLS TO REFLECT THE CHANGING FAMILIAL STRUCTURE
Courtney Chaipel Pugh**
I. INTRODUCTION
The traditional familial structure has changed substantially over time. Consider the family in the ABC television series Modern Family.1 Jay Pritchett represents the patriarch of the family, a middle-aged man with two children from his first marriage, Claire and Mitchell, who are adults who have begun families of their own.2 Claire is married to Phil Dunphy and together they have three children: Haley, Alex, and Luke Dunphy.3 Mitchell and his partner, Cameron Tucker, are a gay couple who adopt a baby named Lily and eventually marry.4 Jay remarries a woman named Gloria and becomes the stepfather to her ten-year old son, Manny,
* Modern Family (ABC television series 2009–present). ** © 2017, Courtney Chaipel Pugh. All rights reserved. Associate Attorney at Quarles & Brady LLP. J.D., Stetson University College of Law, 2016; B.S., University of South Florida, 2013, magna cum laude.I would like to express my sincere gratitude to Professor Paul Boudreaux and Stetson Law Review editor Courtney Cox for their support and advice during the writing process. 1. Modern Family, supra note *. This television series depicts the truly “modern family”: a family with biological children, stepchildren, adopted children, gay marriage, and second marriages. Id. A large family such as this may find professional estate planning particularly desirable. 2. Id. Claire and Phil share the most “traditional” familial relationship on the show: two parents living together in the same home with their biological children. See Gretchen Livingston, Fewer Than Half of U.S. Kids Today Live in a ‘Traditional’ Family,PEW RES. CENTER (Dec. 22, 2014), http://www.pewresearch.org/fact-tank/2014/12/22/less-than-half- of-u-s-kids-today-live-in-a-traditional-family/ (describing a “traditional” family as one where the children live in a home with “two married heterosexual parents in their first marriage”). As Modern Family demonstrates, considering this definition to be “traditional” is, in a sense, outdated. 3. Modern Family, supra note *. 4. Id. 660 Stetson Law Review [Vol. 46 from her first marriage.5 Jay and Gloria eventually have a biological child together, Joe, and live in one home with both of their sons.6 The large family depicted in Modern Family may have various concerns regarding the creation of an effective estate plan. For example, contemplate a situation in which Jay never formally adopts his stepson Manny, who eventually has a daughter. Jay executes two estate planning documents: (1) a will leaving his car to Manny; and (2) a trust leaving his stock portfolio to Manny. Unfortunately, Manny passes away before Jay, who also dies a year later. Under current Florida law, Manny’s daughter will not receive Jay’s car because the statute controlling gifts to predeceased beneficiaries in a will—the antilapse statute—does not allow the descendants of a testator’s stepchild to take a devise in the predeceased stepchild’s place.7 However, under the Florida Trust Code’s antilapse statute, Manny’s daughter will receive Jay’s stock portfolio, because the Florida Trust Code allows the descendant of any predeceased beneficiary to take in the beneficiary’s place, regardless of the beneficiary’s relationship to the settlor of the trust.8 This result may confuse and surprise laypeople who are relatively unfamiliar with estate planning laws. The familial relationships expressed in Modern Family, especially between Jay, Gloria, and their children, are not uncommon. An estimated 4.6 million children under the age of eighteen in the United States live in a household with a stepparent.9 However, this figure—collected by the United States Census Bureau—is merely an estimate, likely an underestimate, of the true number of blended families in this country.10 When researchers considered cohabitation, rather than figures solely
5. Id. 6. Id. 7. FLA.STAT. § 732.603(1) (2016) (allowing only biological family members the option to substitute the predeceased beneficiary with a descendant in regards to gifts). 8. Id. § 736.1106(2). 9. Rose M. Kreider & Daphne A. Lofquist, Adopted Children and Stepchildren: 2010, U.S. CENSUS BUREAU 5 (Apr. 2014), http://census.gov/content/dam/Census/library/ publications/2014/demo/p20-572.pdf. 10. See id. at 3 (discussing how some stepparents choose to adopt their stepchildren and no longer consider them a stepchild). “[G]overnment reporting of population figures indicate families in which the child resides. So if the child lives with a divorced, single parent and the other nonresident parent has remarried, the child is not included in the calculations as being a member of a stepfamily.” Stepfamily Fact Sheet,NAT’L STEPFAMILY RES.CENTER, http://www.stepfamilies.info/stepfamily-fact-sheet.php (last visited Apr. 7, 2017). 2017] The Modern Family 661 from families involving a married couple, a 1995 study estimated that “about two-fifths of all women and [thirty percent] of all children are likely to spend some time in a stepfamily.”11 This data makes sense when considering the marked decline of children who lived in a home with two married parents from 1960 (when eighty- five percent of children under the age of eighteen lived with two married parents) to 2012 (when only sixty-four percent of children lived in a home with two married parents).12 Overall, a 2010 survey found that forty-two percent of American adults have at least one steprelative in their family (whether it be a stepparent, stepsibling, or stepchild).13 These changes in the family structure over the past several decades have led to difficulty in the estate planning arena for individuals who have an idea of how they would like to distribute their wealth, but little clue on how to effectuate their desires when multiple marriages and/or various familial relationships are involved.14 Several professionals in the area of estate planning have sought to simplify (or at least illuminate) the estate planning process for such individuals, but it may be difficult to do so when some state statutory schemes are not viable for the modern, developing family. The antilapse statute introduced above is one specific type of state statute applied in wills and trusts that may prove to be particularly cumbersome for blended families.15 Prior to the enactment of protective statutes for wills, when a beneficiary (taker) predeceased the testator (drafter) of a will, the beneficiary’s devise (gift) lapsed and the devise passed to the testator’s
11. Larry L. Bumpass, R. Kelly Raley & James A. Sweet, The Changing Character of Stepfamilies: Implications of Cohabitation and Nonmarital Childbearing, 32 DEMOGRAPHY 425, 428 (1995) (studying family trends in the United States). 12. Family Structure: Indicators on Children and Youth,CHILD TRENDS DATA BANK 3 (Dec. 2015), http://www.childtrends.org/indicators/family-structure/. 13. Pew Research Ctr., A Portrait of Stepfamilies,PEW SOCIAL TRENDS (Jan. 13, 2011), http://www.pewsocialtrends.org/2011/01/13/a-portrait-of-stepfamilies/. 14. See RICHARD E. BARNES,ESTATE PLANNING FOR BLENDED FAMILIES:PROVIDING FOR YOUR SPOUSE &CHILDREN IN A SECOND MARRIAGE (Mary Randolph ed., 2009) (providing guidelines on the difficulties that blended families may face during estate planning and solutions and suggestions to common issues). See also James R. Allen, Jr., Estate Planning for the Modern Family, J. FIN.SERV.PROF’LS, Sept. 2012, at 40, 40–46 (using the family from Modern Family to provide various estate planning options for blended families). 15. See FLA.STAT. § 732.603(1) (2016) (limiting substitution of a predeceased beneficiary to only biological members of the testator). 662 Stetson Law Review [Vol. 46 residuary takers or, if none, to the testator’s heirs at law.16 To counteract this harsh result to the beneficiary, a large majority of states have enacted antilapse statutes that protect17 a devise to certain relative beneficiaries who predecease the testator by allowing the descendants (children) of the beneficiary to take the devise.18 The Florida Antilapse Statute for wills places a limit on the protected relationships: if the predeceased beneficiary is the testator’s grandparent or a descendant of the testator’s grandparent, the beneficiary’s surviving descendants take the devise.19 If the beneficiary does not fit either of these relational categories, the beneficiary’s surviving descendants are unable to take the devise, which will instead lapse and fall to the residual takers under the will or to the testator’s heirs at law, if no such residual clause exists. Unlike Florida, the antilapse statute in some states protects a gift to a predeceased stepchild.20 In Florida, if a testator drafts a will and leaves a gift to his or her stepchild and the stepchild dies before the testator, the gift will not go to the stepchild’s descendants because Florida’s Antilapse Statute for wills does not protect this type of relationship.21 Therefore, even if the testator had a relationship with his or her stepgrandchildren, the gift will instead go to the testator’s residual takers or the testator’s heirs at law, who may not have received a gift under the will otherwise. This Article seeks to propose a remedy to the deficiency in Florida’s Antilapse Statute for wills that leaves out takers,
16.JESSE DUKEMINIER &ROBERT H. SITKOFF,WILLS,TRUSTS, AND ESTATES 357 (Wolters Kluwer Law & Bus, New York, 9th ed. 2013). 17. To “protect” or “save” a devise means that the gift to a predeceased taker does not go to the testator’s residual takers or the testator’s heirs at law. Id. Instead, the gift goes to the predeceased taker’s descendants. Id. 18. Id. 19. FLA.STAT. § 732.603(1). Under Florida law, adopted relatives are treated the same as biological relatives. See id. § 63.032(2) (explaining that the adoption of a child creates a “legal relationship between parent and child where it did not exist,” such that the child is the parents’ “heir at law and entitled to all the rights and privileges and subject to all the obligations of a child born to such adoptive parents in lawful wedlock”). Therefore, the testator’s grandparents and the descendants of the testator’s grandparents include both the testator’s biological and adopted relatives, but not steprelatives. 20. See infra notes 84–85 (identifying jurisdictions that protect gifts to stepchildren with antilapse statutes for wills). 21. A stepchild will not meet the requirement of Florida’s antilapse statute that the predeceased beneficiary be a relative of the testator unless the testator legally adopted the stepchild. See supra text accompanying note 19. If the testator did legally adopt the stepchild, this distinction is obsolete as an adopted child has identical legal rights as a biological child.FLA.STAT. § 63.032(2). 2017] The Modern Family 663 specifically the descendants of a testator’s stepchildren, that a testator may have intended to favor in his or her devise over the residual or intestate takers. Part II of this Article provides a brief overview of estate planning and the various instruments an individual may use for distribution of his or her property after death. Part III of this Article discusses antilapse statutes in Florida as compared to the antilapse statutes in other states throughout the country. The application of antilapse statutes to blended families is addressed in Part IV, including two slightly different hypotheticals that serve as examples of Florida’s antilapse application and antilapse application in other states with broader statutes. Finally, Part V argues that Florida’s antilapse statute for wills should be expanded to include other individuals with a close relationship to the testator, beginning with the testator’s stepchildren, because modern times have shown an increase in blended families with family members that a testator may intend to include in a devise. Part V also includes a model statute for the proposed expanded antilapse statute. This Article concludes by emphasizing the reasons why the Florida legislature must consider expanding its antilapse statute for wills to protect the developing family structure.
II. ESTATE PLANNING INSTRUMENTS
While many individuals and families may believe that estate planning is only for the rich, in fact anyone with property valuable to them or anyone with minor children should consider creating an estate plan. Not only do individuals with estate plans have incredible power over the distribution of their property following death, but creating such a plan also enhances familial security and decreases the stress of surviving loved ones. With only a basic understanding of relevant state law, obtained through a rudimentary Internet search, anyone can create a will that may protect their property and children after death. However, while many individuals may not prefer the time or expense of securing a professional estate planner, those with particularly valuable 664 Stetson Law Review [Vol. 46 assets or an extended or blended family22 may find professional expertise desirable. There are two main ways property is inherited after an individual dies: (1) through the probate system23 or (2) outside of the probate system by nonprobate succession.24 State laws governing probate and nonprobate transfers vary considerably and can be quite murky without professional guidance.25 Antilapse statutes are used in the probate context when a testator drafts a will.26 In the nonprobate context, antilapse statutes come into play when a settlor creates a revocable trust.27 Florida is among a group of states that has decided to extend antilapse protection to revocable trusts, with support from the Uniform Probate Code (UPC)28 and following the lead of the Uniform Trust Code (UTC).29 Under Florida’s Antilapse Statute for trusts, the descendants of any predeceased beneficiary may take, regardless of the beneficiary’s relationship to the settlor.30 Thus, while a revocable trust is much like a will in form and function, revocable trusts are actually provided more antilapse protection than wills.31
22. In this Article, the term “blended family” will be used to express a family with children from a prior marriage of the wife, husband, or both. See, e.g., Jeanne Segal & Lawrence Robinson, Step-Parenting and Blended Families: How to Bond with Stepchildren and Deal with Stepfamily Issues, HELPGUIDE.ORG, https://www.helpguide.org/articles/ family-divorce/step-parenting-blended-families.htm?pdf=true (last updated Apr. 2017) (defining a blended family as a family including children from the prior marriage of one or both spouses). 23. Black’s Law Dictionary defines probate as a “judicial procedure by which a testamentary document is established to be a valid will; the proving of a will to the satisfaction of the court.” BLACK’S LAW DICTIONARY (Bryan A. Garner ed., 10th ed. 2014). 24. Nonprobate transfers following an individual’s death are those done outside of the context of a will. BLACK’S LAW DICTIONARY, supra note 23. See infra Part II(B) for examples of the varying types of nonprobate transfers. 25. See, e.g., infra Part III(A) (examining the difference between the antilapse statute under the Florida Probate Code versus the antilapse statute under the Florida Trust Code). 26. See, e.g.,FLA.STAT. § 732.603(1) (2016) (using an antilapse statute in the probate context when a testator drafts a will). 27. See, e.g., id. § 736.1106(2) (using antilapse statutes when creating a revocable trust). 28. UNIF.PROB.CODE § 2-707(b) (1969) (amended 2010) (“If a beneficiary of a future interest under the terms of a trust fails to survive the distribution date . . . and the deceased beneficiary leaves surviving descendants, a substitute gift is created in the beneficiary’s surviving descendants.”). 29. See infra note 42 (discussing the enactment of the UTC). 30. FLA.STAT. § 736.1106(2). 31. Professor Waggoner aptly points out that the antilapse-type protection found in the UPC and in states that have adopted a similar provision applies solely to poorly drafted trusts. A proper, professionally drafted trust instrument will in fact have takers in default who will take a devise that lapses due to the death of a beneficiary. Lawrence W. Waggoner, The Uniform Probate Code Extends Antilapse-Type Protection to Poorly Drafted Trusts, 94 MICH. L. REV. 2309, 2310 (1996). 2017] The Modern Family 665
A. Probate Administration
When a testator drafts a will, his property passes through the probate system.32 Although nonprobate transfers have become increasingly popular as American wealth grows, probate administration is truly an “indispensable institution”33 because of its ability to collect and distribute property after death from those individuals who do not dispose of some or all of their property via will substitutes. After all, although revocable trusts are becoming more popular, it is estimated that only twenty percent of Americans have created an effective trust.34 Although indispensable, the probate system remains a complicated one. It can be especially confusing due to many variations in probate laws throughout the United States. Originally promulgated in 1969, the UPC was developed with the intent to encourage states to adopt uniform probate laws.35 The UPC was substantially revised in 199036 and then again in 2008.37 Sixteen states, including Florida, adopted the 1969 version of the UPC in its entirety with slight modifications.38 Although it has not been uniformly adopted by all states, the UPC remains an influential uniform code and has the potential to adapt to changing societal norms regarding families faster than some state statutes.39
32. BLACK’S LAW DICTIONARY, supra note 23. 33. John H. Langbein, The Nonprobate Revolution and the Future of the Law of Succession, 97 HARV. L. REV. 1108, 1108 (1984). 34. Michelle Fabio, Top Three Benefits of a Living Trust,LEGALZOOM (Nov. 2015), https://www.legalzoom.com/articles/top-three-benefits-of-a-living-trust. 35. Lawrence H. Averill, Jr., An Eclectic History and Analysis of the 1990 Uniform Probate Code, 55 ALB. L. REV. 891, 896 (1992). 36. Id. at 898. 37. Joseph J. Carroll, Avoiding Backlash: The Exclusion of Domestic Partnership Language in the 2008 Amendments to the Uniform Probate Code and the Future for Same- Sex Intestacy Rights, 85 TEMP. L. REV. 623, 631 (2013). 38. The following sixteen states have adopted the UPC “in its entirety (in some cases with significant modifications)”: Alaska, Arizona, Colorado, Florida, Hawaii, Idaho, Maine, Michigan, Minnesota, Montana, Nebraska, New Mexico, North Dakota, South Carolina, South Dakota, and Utah. Uniform Probate Code,LEGAL INFO.INST., https://www.law .cornell.edu/uniform/probate (last visited Apr. 7, 2017). 39. One goal of the UPC is to bring probate laws in line with “developing public policy and family relationships.” UNIF.PROB.CODE art. II, pt. 1, gen. cmt. (1969) (referring specifically to amendments to intestate succession rules). The UPC antilapse statute, for example, protects gifts to predeceased stepchildren, allowing the descendants of the stepchild to take the gift as a substitute. Id. § 2-603(b). However, there are some areas where the UPC may not live up to its goal of providing for progressing familial relationships, such as its lack of provisions on same-sex inheritance rights. Compare Carroll, supra note 37 (arguing that the UPC properly excluded language recognizing same-sex inheritance rights in its 2008 amendments), with Lawrence W. Waggoner, Marital Property Rights in 666 Stetson Law Review [Vol. 46
B. Nonprobate Succession
Due to the time and hassle commonly associated with probate administration, much of the property distributed at death today passes through will substitutes.40 The four main methods of nonprobate transfer are (1) revocable trusts, (2) joint, pay-on-death and convenience accounts, (3) pension accounts, and (4) life insurance policies.41
1. Revocable Trusts
A revocable trust is used by individuals wishing to procure a flexible instrument for controlling property during life and after death.42 Put in the most basic sense, to establish a trust, the settlor (creator of the trust) needs only some intent to do so, some property to put in the trust (the res), someone to give the property to (the beneficiary), and someone to control the property placed in the trust (the trustee).43 Like the beneficiaries under a will, the beneficiaries of a revocable trust have no claim against the trust during the settlor’s lifetime.44 As the use of trusts as will
Transition, 59 MO. L. REV. 21 (1994) (advocating for UPC expansion to embrace greater intestate succession rights for nontraditional couples, including unmarried heterosexual cohabitating couples and gay couples). 40. Today, many people die with vast amounts of wealth in financial assets, such as joint accounts and life insurance policies. These financial assets pass through financial intermediaries, which handle the transfer of property held in these types of accounts outside of the court system upon the owner’s death. While the probate system has traditionally been preferred by creditors as added protection to obtain debts owed at death, some creditors are also choosing to protect their interests through nonprobate methods. Grayson M.P. McCouch, Probate Law Reform and Nonprobate Transfers, 62 U. MIAMI L. REV. 757, 759– 60 (2008). 41. Langbein, supra note 33, at 1109. These four methods of nonprobate transfer are commonly referred to as “will substitutes,” because they generally allow the creator control over his or her property during life and act much in the same manner as a properly executed will. Id. 42. In 2000, the drafters of the UPC, the National Conference of Commissioners on Uniform State Laws (formally the Uniform Law Commission), drafted a Uniform Trust Code (UTC). UNIF.TRUST CODE (2000) (amended 2010). The UTC reflects many equivalent provisions as the UPC, tailored to the more flexible trust. Id. The UTC was adopted virtually in its entirety by twenty-five states, including Florida, while other states chose to adopt only certain provisions. John Spencer Treu, The Mandatory Disclosure Provisions of the Uniform Trust Code: Still Boldly Going Where No Jurisdiction Will Follow—A Practical Tax-Based Solution, 82 MISS. L.J. 597, 603 (2013). 43. Donna Litman, Revocable Trusts Under the Florida Trust Code, 34 NOVA L. REV. 1, 7 (2009). 44. Rochelle A. Smith, Note, Why Limit A Good Thing? A Proposal to Apply the California Antilapse Statute to Revocable Living Trusts, 43 HASTINGS L.J. 1391, 1406–07 (1992). If a beneficiary attempted to sue under the terms of a trust while the settlor was 2017] The Modern Family 667 substitutes has increased—particularly the use of revocable trusts45—so have the similarities between the two methods of estate division. Many of the rules of construction and policy limits that apply to wills are interpreted by courts and legislatures as also applicable to revocable trusts.46
2. Joint Accounts, Pay-on-Death Accounts, and Convenience Accounts
Pay-on-death (POD) accounts provide a simple method to control money during life and then devise it at death. For example, an owner of a bank account need only designate a beneficiary to the funds upon the owner’s death. Following death, the account institution will transfer the funds to the beneficiary outside of probate.47 Joint accounts act in the same manner. Joint accounts are owned by two people with a right of survivorship such that when the first owner dies, the second owner has the right to the funds.48 The owners of a joint account may establish a POD (payable on death) beneficiary who will take the funds after both owners die.49 Florida is one of several states50 that authorizes a third type of financial account that may be used by an individual to avoid probate upon death: the convenience account.51 A convenience account acts as a substitute to guardianship because the account is in the principal’s name, but designated agents are permitted to
still alive, the settlor would have the power to simply revoke the trust or revoke the beneficiary’s interest in the trust, thus giving the beneficiaries little, if any, control over the trust during the settlor’s lifetime. Id. 45. Professors Dukeminier and Sitkoff found that trusts actually have “eclipsed wills as the preferred vehicle for implementing a donor’s freedom of disposition.” DUKEMINIER & SITKOFF, supra note 16, at 385. 46. Id. at 457. See also Litman, supra note 43, at 5–6 (focusing on the comparison between Florida’s trust laws and the “parallel rules applicable to wills”). Antilapse statutes are one example of applicable rules of construction that have been applied to revocable trusts in addition to wills. Id. at 68–69. 47. MARY RANDOLPH, 8 WAYS TO AVOID PROBATE 16 (10th ed. 2014). 48. Id. at 19. 49. Id. 50. See, e.g., Title 2 TEX.EST.CODE ANN. § 113.004(1) (West 2014) (stating that a financial convenience account is one that “is established . . . by one or more parties in the names of the parties and one or more convenience signers; and . . . has terms that provide that the sums on deposit are paid or delivered to the parties or to the convenience signers ‘for the convenience’ of the parties”). 51. FLA.STAT. § 655.80 (2016). 668 Stetson Law Review [Vol. 46 make withdrawals and deposits into the account.52 The agents have no interest in the convenience account, which is operated solely in the principal’s benefit.53 Upon the principal’s death, the remaining balance of the account is paid according to the method prescribed by the principal during his or her lifetime or capacity.54
3. Pension Accounts and Life Insurance Policies
As of the end of 2010, Americans held $18.4 trillion in life insurance coverage.55 Additionally, many Americans likely have rights to some type of pension account as a benefit of their employment.56 Because of the massive amount of wealth in these institutions, there are strict laws in place to protect the assets in life insurance57 and pension accounts,58 and to ensure fair and timely administration upon the insured’s death. Put simply, life insurance policies and pension accounts act similarly in that a designated beneficiary receives the life insurance or pension funds upon the death of the insured.59 However, since most life insurance and pension plans obtained through employment are governed by federal law, state law may be preempted.60
52. J. Richard Caskey, Use of Joint Ownership,FLA.GUARDIANSHIP PRAC., 2014, § 6.7. This agency relationship is not affected by the principal’s death or incapacity. FLA.STAT. § 655.80(1); Caskey, supra, § 6.7. 53. FLA.STAT. § 655.80(2). 54. Id. § 655.80(3). 55. American Council of Life Insurers, 2011 Life Insurers Fact Book,LIBR. OF CONGRESS CATALOG 63 (2011), http://docplayer.net/8090343-2011-life-insurers-fact-book.html. 56. Langbein, supra note 33, at 1111. 57. See generally FLA.STAT. ch. 627 (2016) (including examples of the strict laws in place for the regulation of life insurance policies in Florida). On the federal level, the Employee Retirement Income Security Act (ERISA) may preempt some state laws in relation to life insurance and pension plans. 29 U.S.C. § 1001 (1974). See also infra text accompanying note 60 (noting the preemption of certain state laws as applied to federal pension plans). 58. See generally, e.g., U.S. Office of Personnel Management, Federal Employees Retirement System (FERS) Information, OPM.GOV, https://www.opm.gov/retirement- services/fers-information/ (last visited Apr. 7, 2017) (containing a broad overview of the federal regulations controlling pension plans). 59. Langbein, supra note 33, at 1110–11. 60. See, e.g., Egelhoff v. Egelhoff, 532 U.S. 141, 143 (2001) (holding that the state of Washington was preempted from applying its revocation-upon-divorce statutes to federal pension plans). 2017] The Modern Family 669
III. ANTILAPSE STATUTES THROUGHOUT THE UNITED STATES
Turning specifically to probate administration and the application of antilapse statutes in wills, many of the fifty states apply antilapse statutes very differently. The UPC was created— as its name suggests—with the goal of uniformity in probate administration throughout the states.61 However, this goal fell short as less than half of the states adopted the UPC in its entirety.62 It has been feared that this lack of uniformity “may cause not only unjust results but also an inherent confusion and distrust among a very mobile lay populace.”63 Despite the lack of uniform enactment of the UPC throughout the states, it has still proven influential. While some states have rejected some or all of the provisions prescribed by the UPC, it is not uncommon for courts to cite to the uniform law as persuasive authority,64 or legislatures to refer to it when revising a state’s probate code.65 Additionally, as a result of the UPC drafter’s motivation to secure enactment of the UPC throughout the states, further future uniform laws were created, such as the UTC.66 The UTC and related uniform laws were spearheaded by the Joint Editorial Board for Uniform Trusts and Estates Act, which was formed to assist the enactment process of the UPC.67 Thus, even though the UPC may not have gained as much acceptance as was originally sought, it still has played an important role in the shaping of probate laws in the United States.
61. See UNIF.PROB.CODE § 1-102(b) (explaining the purpose behind the UPC). 62. See supra note 38 (listing the states that adopted the UPC in its entirety, with some modifications). 63. Averill, supra note 35, at 895. 64. David Horton, Wills Law on the Ground, 62 UCLA L. REV. 1094, 1119–20 (2015). 65. Robert A. Stein, Strengthening Federalism: The Uniform State Law Movement in the United States, 99 MINN. L. REV. 2253, 2268 (2015). 66. See supra note 42 (discussing the enactment of the UTC). 67. Stein, supra note 65, at 2268–69. Professor Stein offers a detailed examination of the benefits and importance of uniform laws in the United States, especially in three main areas of law that previously lacked uniformity: “Business Entity Law, Commercial Law, and Trusts and Estates Law.” Id. at 2258. 670 Stetson Law Review [Vol. 46
A. Florida’s Legislative Decision to Broaden Antilapse Statutes Exclusively for Trusts
The UPC and more than a third of the states have enacted statutes that extend the antilapse protection in wills “to future interests in trust as if the settlor were a testator who died on the distribution date.”68 Florida is one of these states. However, the Florida Trust Code is much more expansive than its wills-law equivalent, allowing the descendants of any trust beneficiary (i.e., not just the settlor’s grandparents and descendants of the settlor’s grandparents, as in the Florida Probate Code’s antilapse statute) to take a devise in a trust if the beneficiary fails to survive the distribution date.69 This difference between antilapse statutes for wills and trusts in Florida is quite notable. If a donor drafts a will devising his or her assets to particular individuals, Florida is among a group of states that creates an assumption of donative intent for the testator regarding some of the beneficiaries outside of the testator’s immediate family—like grandparents, aunts, uncles, and cousins—but does not allow the statute to apply to other individuals that the testator may reasonably desire to have protection in the case of an early death, such as his or her stepchildren.70 However, if the donor has chosen to give a devise through a trust, rather than a will, the antilapse statute protects gifts to everyone with surviving descendants, regardless of the beneficiary’s relationship to the settlor.71 By broadening Florida’s Antilapse Statute for trusts, the legislature sought to enhance the purpose of the trust code by ensuring that revocable trusts are workable and flexible for the settlor.72 “The absence of a relationship test in [section] 736.1106[, Florida Statutes,] rests on a subtle but important distinction
68. DUKEMINIER &SITKOFF, supra note 16, at 856. 69.FLA.STAT. § 736.1106 (2016). 70. See id. § 732.603(1) (“Unless a contrary intent appears in the will, if a devisee who is a grandparent, or a descendant of a grandparent, of the testator [predeceases the testator in fact or by law] . . . a substitute gift is created in the devisee’s surviving descendants.”). 71. See id. § 736.1106(2) (“Unless a contrary intent appears in the trust instrument, if a beneficiary of a future interest under the terms of a trust fails to survive the distribution date, and the deceased beneficiary leaves surviving descendants, a substitute gift is created in the beneficiary’s surviving descendants.”). 72. Cf. Engelke v. Estate of Engelke, 921 So. 2d 693, 697 (Fla. 4th Dist. Ct. App. 2006) (“Revocable living trusts are widely used will-substitute devices that provide flexibility in managing the settlor’s assets during his or her lifetime.”). 2017] The Modern Family 671 between the underlying rationales for that section compared with the Probate Code antilapse provision.”73 Whereas the provisions in the Florida Probate Code exist exclusively to further a testator’s intent, the main rationale of section 736.1106 is “in large part . . . economy and administrative convenience.”74 By eliminating the need for the beneficiary of the trust to have a relationship of some degree with the settlor, the trust can be administered quickly and efficiently upon the settlor’s death. However, in a society where many individuals are part of a stepfamily, it is time for the legislature to also consider expanding the antilapse statute for wills. Probate administration is notoriously complicated,75 but in a developing society there are changes that may be made to the probate code to facilitate the process. Florida must follow the lead of the UPC and various states to expand the scope of its antilapse statute for wills to ensure that a testator’s intent is honored.
B. Antilapse Statutes for Wills in Other States
The first state to adopt an antilapse provision was Massachusetts in 1783.76 The original text of the provision stated:
[W]hen any child, grandchild or other relation, having a devise of personal estate or real estate, and such devisee shall die before the testator, leaving lineal descendants, such descendants shall take the estate, real or personal, in the same way and manner such devisee would have done in case he had survived the testator, any law, usage or custom, to the contrary notwithstanding.77
Accordingly, this statute protected devises to any individual related to the testator such that should a relative predecease the testator, the devise to that relative would fall to his or her
73.JUDICIARY COMM., SENATE STAFF ANALYSIS AND ECONOMIC IMPACT STATEMENT, CS/SB 1170, 52 (Fla. Mar. 10, 2006). 74. Id. 75. See supra Part II for an explanation of the benefits and drawbacks of probate versus nonprobate administration. 76. See Erich Tucker Kimbrough, Note, Lapsing of Testamentary Gifts, Antilapse Statutes, and the Expansion of Uniform Probate Code Antilapse Protection, 36 WM.&MARY L. REV. 269, 273–75 (1994) (providing a detailed examination of the history of the antilapse statutes in and throughout the United States). 77. 1783 MASS.ACTS 553, available at https://ia802606.us.archive.org/24/items/ actsresolvespass178283mass/actsresolvespass178283mass.pdf (last visited Apr. 7, 2017). 672 Stetson Law Review [Vol. 46 surviving descendants.78 Since Massachusetts’ initial adoption of the first antilapse statute, every state except Louisiana79 has adopted an antilapse statute—although they vary in scope throughout the remaining forty-nine states. Like Florida, some states have antilapse statutes for wills that only save gifts to beneficiaries who are the testator’s grandparents or descendants of the testator’s grandparents.80 Other states extend this protection to gifts to additional relatives,81 while others have narrower antilapse statutes protecting gifts to even fewer individuals. For example, Arkansas protects only gifts to the testator’s child or other descendant,82 while New York goes slightly further by protecting gifts to the descendants and siblings of the testator.83
78. Id. 79. Jeffrey A. Cooper, A Lapse in Judgment: Ruotolo v. Tietjen and Interpretation of Connecticut’s Anti-Lapse Statute, 20 QUINNIPIAC PROB. L.J. 204, 208 (2007). See also In re Moore, 353 So. 2d 353, 354 (La. Ct. App. 1977) (holding that if a beneficiary predeceases a testator, the gift to the beneficiary lapses and falls into the residue of the testator’s estate). 80. See, e.g.,ALA.CODE. § 43-8-224 (1975): If a devisee who is a grandparent or a lineal descendant of a grandparent of the testator is dead at the time of execution of the will, fails to survive the testator, or is treated as if he predeceased the testator, the issue of the deceased devisee who survive the testator by five days take in place of the deceased devisee. . . .
See also COLO.REV.STAT.ANN. § 15-11-603 (West 1995) (“If a devisee fails to survive the testator and is a grandparent or a descendant of a grandparent of . . . the testator . . . and the deceased devisee leaves surviving descendants, a substitute gift is created in the devisee’s surviving descendants.”); N.D. CENT.CODE ANN. § 30.1-09-05 (2-603) (West 1976) (“If a devisee who is a grandparent or a lineal descendant of a grandparent of the testator [predeceases the testator in fact or by law] the issue of the deceased devisee who survive the testator by one hundred twenty hours take in place of the deceased devisee. . . .”). 81. See infra text accompanying notes 84–87. 82. ARK.CODE.ANN. § 28-26-104 (2015): Whenever property is devised to a child, natural or adopted, or other descendant of the testator . . . and the devisee shall die in the lifetime of the testator, leaving a . . . descendant who survives the testator, the devise shall not lapse, but the property shall vest in the surviving ... descendant of the devisee.
83. N.Y. EST.POWERS &TRUSTS LAW § 3-3.3(a)(2) (Consol. 2013): Whenever a testamentary disposition including a disposition of a future estate other than a future estate subject to a condition precedent of surviving the testator is made to a beneficiary who is one of the testator’s issue or a brother or sister, and such beneficiary dies during the lifetime of the testator leaving issue surviving such testator, such disposition does not lapse but vests in such surviving issue. 2017] The Modern Family 673
Some states, such as Michigan84 and New Mexico,85 have followed the lead of the UPC by adopting antilapse statutes for wills that protect gifts to stepchildren. A small number of states include antilapse provisions that protect gifts to spouses, which would in turn allow the testator’s stepchild to take in a predeceased spouse-beneficiary’s place.86 Finally, some states and the District of Columbia do not have any limitation on the protected gifts and allow the descendants of any predeceased beneficiary to take a devise.87
IV. ANTILAPSE STATUTES AND BLENDED FAMILIES
Antilapse statutes were created to further the alleged societal presumption that a donor would prefer a gift to fall to a beneficiary’s descendants rather than passing by intestate succession.88 Of course, it is impossible to truly discern the probable intent of a deceased testator, and courts must attempt to overcome this “worst evidence” rule: that the individual in the best position to verify and explain a will—the testator—is dead by the time the will is contested.89 This worst evidence rule consistently creates a hurdle to determining the validity of a will and the capacity of the testator who created it. A few jurisdictions allow the testator to bring a declaratory judgment action during his
84. See MICH.COMP.LAWS § 700.2709 (2014) (“If a beneficiary fails to survive the decedent and is a grandparent, a grandparent’s descendant, or the decedent’s stepchild . .. and the deceased beneficiary leaves surviving descendants, a substitute gift is created in the beneficiary’s surviving descendants.”). 85. See N.M. STAT.ANN. § 45-2-603 (2011) (“If a devisee fails to survive the testator and is a grandparent, a descendant of a grandparent or a stepchild of . . . the testator . . . and the deceased devisee leaves surviving descendants, a substitute gift is created in the devisee’s surviving descendants.”). 86. See, e.g.,KAN.STAT.ANN. § 59-615 (2014): If a devise or bequest is made to a spouse or to any relative by lineal descent or within the sixth degree . . . and such spouse or relative dies before the testator, leaving issue who survive the testator, such issue shall take the same estate which said devisee or legatee would have taken if he or she had survived.
87. See, e.g., D.C. CODE § 18-308 (2012) (“Unless a different disposition is made or required by the will, if a devisee or legatee dies before the testator, leaving issue who survive the testator, the issue shall take the estate devised or bequeathed as the devisee or legatee would have done if he had survived the testator.”); GA.CODE ANN. § 53-4-64 (West 2014) (allowing the descendants of all predeceased beneficiaries to take the devise). 88. See Kimbrough, supra note 76, at 269–70 (examining the history of antilapse statutes and the rationale behind their creation). 89. Robert H. Sitkoff, Trusts and Estates: Implementing Freedom of Disposition, 58 ST. LOUIS U. L.J. 643, 647 (2014). 674 Stetson Law Review [Vol. 46 lifetime to determine his capacity to create a will,90 but the remaining jurisdictions “insist that the testator be dead before . . . investigat[ing] the question whether he had capacity when he was alive.”91 Even if a testator did have a clear strategy in mind when crafting the disposition of her estate and had the capacity to properly do so, an estate plan is usually created with the intention that the beneficiaries will outlive the donor. If there is an untimely death of a loved one, a donor may not be immediately concerned about revising her estate plan in the wake of tragedy. Thus, antilapse statutes, by their very nature, make an assumption about a testator or settlor’s intent without any express statement by the donor.
A. Words of Survivorship to Preclude Application of Antilapse Statutes
A “universal caveat” to antilapse statutes is that they, like many other statutes governing wills, “yield to an adverse intention of the testator.”92 Therefore, words of survivorship in a devise— such as “to A, if A survives me”—preclude application of antilapse statutes in some jurisdictions.93 In In re Estate of Wagner,94 the testator bequeathed thirty percent of the residue of his estate to his three sisters.95 The testator’s will also provided that, should any of his sisters predecease him, the devise was to be distributed to his “surviving sisters.”96 Florida’s Second District Court of Appeal held that the state’s antilapse statute for wills was inapplicable to the testator’s devise due to the survivorship language present in his will.97 Therefore, even though one of the testator’s sisters predeceased him, and Florida’s antilapse statute
90. One state that allows such a declaratory action is Ohio, in which the executor of a will may submit his or her will to a state court to determine its validity during his or her lifetime. OHIO REV.CODE ANN. § 2107.081 (West 2012). 91. John H. Langbein, Will Contests, 103 YALE L.J. 2039, 2044 (1994). 92. In re Estate of Wagner, 423 So. 2d 400, 402 (Fla. 2d Dist. Ct. App. 1982). See also FLA.STAT. § 732.603 (2016) (stating that the antilapse provisions apply “[u]nless a contrary intent appears in the will”). 93. Eloisa C. Rodriguez-Dod, “I’m Not Quite Dead Yet!”: Rethinking the Anti-Lapse Redistribution of a Dead Beneficiary’s Gift, 61 CLEV.ST. L. REV. 1017, 1026–27 (2013). 94. 432 So. 2d 400. 95. Id. at 401. 96. Id. 97. Id. at 403–04. 2017] The Modern Family 675 generally protects gifts to the siblings of a testator by distributing it to the siblings’ descendants instead, the devise was distributed to the testator’s remaining sisters, not the descendants of the testator’s predeceased sister.98 Without survivorship language indicating that a beneficiary must survive in order to take, such as the language used by the testator in Wagner, courts will apply the antilapse statute, presuming that the testator would have preferred a gift to fall to a descendant of the predeceased beneficiary, who is a grandparent of the testator or a descendant of the testator’s grandparent,99 rather than another relative who would receive the gift via intestacy. However, this may not always be the desired result. In In re Estate of Scott,100 Florida’s First District Court of Appeal held that the antilapse statute properly allowed a devise to fall to the testator’s predeceased sister’s children, even though the testator specifically stated that she did not intend to provide for her sister’s children in her will.101 While the testator’s intent was clear—that is, not to provide for her sister’s children—absent specific language indicating survivorship in order to take, application of the antilapse statute was not precluded and the testator’s intent could not be honored.102 Because the antilapse statute for wills is in derogation of the common law, courts have consistently held that it must be strictly construed.103 Following this settled principle, the court in Scott refused to construe the testator’s will by applying what she “would or should have done”104 and made the necessary holding that the antilapse statute applied, even if it seemed contrary to the testator’s intent.105
98. Id. 99.FLA.STAT. § 732.603(1) (2016). 100. 659 So. 2d 361 (Fla. 1st Dist. Ct. App. 1995). 101. Id. at 362. 102. Id. 103. See, e.g., Lorenzo v. Medina, 47 So. 3d 927, 929 (Fla. 3d Dist. Ct. App. 2010) (stating that “[b]ecause section 732.603 is in derogation of the common law,” the court “must strictly construe its provisions”); Drafts v. Drafts, 114 So. 2d 473, 475 (Fla. 1st Dist. Ct. App. 1959) (acknowledging the general rule that “statutes which are in derogation of the common law must be strictly construed”). 104. 659 So. 2d at 362. 105. Id. 676 Stetson Law Review [Vol. 46
When the UPC was substantially revised in 1990, it created a relatively unpopular rule106 that words of survivorship, absent other evidence, do not preclude application of antilapse statutes.107 Therefore, even if the testator’s will devises property “to A, if A survives me,” if there is no additional evidence to demonstrate the testator’s desire that A survive in order to take, a state following the UPC will allow the antilapse statute to apply and the devise will fall to A’s descendants, if A has any. Under the UPC analysis, it is likely that the survivorship language in Wagner would not have been enough to preclude application of the antilapse statute.108 Thus, instead of distributing the devise equally among the testator’s still-living sisters,109 the court would have had to distribute the portion of the devise given to the predeceased sister to her living descendants. In spite of the sharp criticism of the UPC’s revised survivorship rule, a few states have accepted the UPC’s position.110 These varying positions on antilapse statutes and survivorship language raise one important question: do antilapse statutes really achieve the purpose of furthering the testator’s intent? Most, if not all, statutes construing wills have been enacted with the legislatures’ genuine objective to enforce the testator’s probable intent. However, in the real world with real people (many of whom are likely unaware of a majority of the statutes that will one day construe their will), intentions vary, and it is impossible
106. See Mark L. Ascher, The 1990 Uniform Probate Code: Older and Better, or More Like the Internal Revenue Code?, 77 MINN. L. REV. 639 (1993) (presenting a particularly scathing opinion of the 1990 revisions to the UPC). Professor Ascher criticizes the reversal of the survivorship rule as “pretentious” and argues that it “disputes what should be obvious[—]that most testators expect their wills to dispose of their property completely[—] without interference from a statute of which they have never even heard.” Id. at 654 (emphasis removed) (footnotes omitted). Professor Rodriguez-Dod expresses similar concerns, asking whether it is appropriate for the UPC to so “cavalierly disregard[]” a testator’s clear intention to require a beneficiary to survive in order to take. Rodriguez-Dod, supra note 93, at 1027. 107.UNIF.PROB.CODE § 2-603(b)(3). 108. Recall that the testator in this case devised property to his “surviving sisters.” 423 So. 2d at 401. The UPC specifically states: “words of survivorship, such as in a devise to an individual ‘if he survives me,’ or in a devise to ‘my surviving children,’ are not, in the absence of additional evidence, a sufficient indication of an intent contrary to the application of” the antilapse statute. UNIF.PROB.CODE § 2-603(b)(3) (emphasis added). 109. In re Estate of Wagner, 423 So. 2d at 403–04. 110. See, e.g.,ALASKA STAT. § 13.12.603(a)(3) (2014) (“[W]ords of survivorship, as in a devise to an individual ‘if the individual survives me,’ or in a devise to ‘my surviving children,’ are not, in the absence of additional evidence, a sufficient indication of an intent contrary to the application of this section.”). 2017] The Modern Family 677 for even the most sound legislature to account for every conceivable intention of every conceivable testator. As families change, it is important that the legislatures creating these rules, which ultimately govern the fate of the average citizen’s property and the actions of the citizen’s surviving family, remain flexible and realistic to account for a progressing society.
B. Terry, Henry, and Sam: A Hypothetical Application of Antilapse Statutes
Take, for example, Terry the testator, who married her second husband, a man named Henry. As of the date of Terry and Henry’s wedding, Henry had a ten-year-old son from a previous marriage named Sam. Sam lived part-time with Terry and Henry, and part- time with his biological mother during his childhood. He enjoyed a close relationship with all three adults. Terry and Henry never had children of their own, but Terry treated Sam like a son throughout his adolescence and into his adulthood. When Sam was sixteen, Terry created a will in which she left half of her estate to Henry, one-third of her estate to Sam, and the remainder of her estate to her brother, Bob. When Sam was twenty-four, he had a daughter named Darcy. Terry and Henry maintained a close relationship with Sam and his daughter. Unfortunately, Sam passed away when he was thirty. One year later, Terry passed away without revising her original will, leaving Henry, Darcy, and Bob as survivors. Because Sam predeceased Terry, the gift of one-third of Terry’s estate to Sam lapses under Florida law.111
1. Applying Florida’s Antilapse Statute for Wills
Under Florida’s antilapse statute for wills, a lapsed gift falls to the descendant of the beneficiary, if the beneficiary is the testator’s grandparent or a descendant of the testator’s grandparent. Because Sam fits neither of these categories, and Florida does not save gifts to the testator’s stepchild, the gift to Sam would lapse under Florida law, and the one-third of Terry’s estate originally gifted in her will to Sam would go to Bob as the
111. As many scholars have pointed out, the term “antilapse” is really a misnomer. See, e.g., Kimbrough, supra note 76, at 273 (noting that antilapse statutes do not prevent a gift from lapsing, but instead act to “redirect a lapsed testamentary gift . . . [to] substitute takers”). 678 Stetson Law Review [Vol. 46 residual taker instead of Darcy. Therefore, Henry would take one- half of Terry’s estate and Bob would take the other half.
2. Applying Broader Antilapse Statutes
The antilapse statute for wills in Michigan, a broader statute than that of Florida, allows the descendant of a predeceased beneficiary to take in the beneficiary’s place “if [the] beneficiary . . . is a grandparent, a grandparent’s descendant, or the decedent’s stepchild.”112 Applying this antilapse statute, Terry’s gift to Sam, her stepson, would be saved because Michigan has carved out “stepchild” as a relationship of allowable takers under its antilapse statute.113 Therefore, because Darcy is a living descendant of Sam, Darcy would take in Sam’s place. Henry would thus take one-half of Terry’s estate, Darcy would take one-third, and Bob would take the residue (one-sixth) of the estate.
3. Consequences of Narrower Antilapse Statutes in Varying Relational Situations
Because Florida has a narrower antilapse statute, Darcy would not be able to enjoy her father’s share of Terry’s estate in Florida, even if it would have been Terry’s genuine intention for her to do so. A Florida court may find evidence that Terry intended for Darcy to take in Sam’s place due to Terry’s close relationship with Sam and Darcy, but a strict application of Florida’s antilapse statute would still not allow the court to reach any result besides permitting Bob to take Sam’s share, even if Terry did not want her brother to end up with one-half of her estate.114 The potential negative consequences of antilapse statutes are less clear in an example such as the one provided above involving
112. MICH.COMP.LAWS § 700.2709 (2014). 113. Id. 114. This analysis would remain the same even if Terry had included survivorship language in her will. For example, the relevant provision in Terry’s will may have stated: “One-third of my estate to my stepson, Sam, should he survive me.” In Florida, this language would have been sufficient to preclude application of the antilapse statute and the devise to Sam would have fallen to the residual taker under Terry’s will, her brother Bob, automatically upon Sam’s death. However, Sam’s daughter is unable to take his devise in his place under the Florida Probate Code Antilapse Statute for wills regardless, as Sam does not share the required relationship with Terry to permit application of the antilapse statute. Therefore, including words of survivorship will be immaterial and the devise to Sam still falls into the residual clause of Terry’s will. 2017] The Modern Family 679
Terry, Sam, and Darcy. A more concerning hypothetical is presented where the facts are tweaked just a bit: instead of Terry and Henry marrying when Sam was ten-years-old, and Terry treating Sam like a son during his adolescence, Terry and Henry married when Sam was twenty-three-years-old. In this scenario, Sam lived in another state where he was attending college. Such is the case that Terry and Sam only met a handful of times, only spent some holidays together, and ultimately had a polite, yet distant, relationship. Terry instead wrote a will leaving one-half of her estate to Henry, but left Sam only one-eighth of her estate, with the residue still to her brother, Bob. Sam had one daughter, Darcy, and predeceased Terry, who in turn died one year later without revising her will. On one hand, antilapse statutes may still justify allowing Darcy to take Sam’s devise. Terry felt enough of a connection to Sam to specifically mention him in her will, although providing him with a relatively small share of her estate. After all, antilapse statutes can never apply to a predeceased individual who was never actually a beneficiary under the will.115 Thus, since Terry included Sam in her will, there may have been some intent to allow his daughter to take should Sam predecease Terry. On the other hand, Terry may only have felt an obligatory desire to include Sam in her will as her stepson, even though they only had a relationship in Sam’s adulthood and were never particularly close. And even more to the point, because Terry and Sam never shared a meaningful relationship, Terry may have been even less likely to share a meaningful relationship with Sam’s daughter.116 This is one concern that legislatures attempt to alleviate by narrowing the scope of antilapse statutes. Because Terry, the testator, may not have a close relationship with the descendants of her stepchild, a friend, or another distant relative,
115. By their very nature, antilapse statutes apply only to protect gifts to a predeceased devisee. FLA.STAT. § 732.603(1) (2016). A beneficiary is a devisee in a testate estate (involving a will). Id. § 731.201(2). Under Florida law, only an “interested person” may contest the provisions of a will. 18 FLA.JUR. 2d Decedents’ Property § 250 (2015). This right “extends to spouse’s creditors, or others having a property right or claim against the estate being administered, as well as to heirs, distributees, legatees, and devisees.” Id. § 249. Florida courts have held that the descendant of a beneficiary of a will is a contingent beneficiary who properly qualifies as an interested person with standing to challenge the will. E.g., In re Estate of Watkins, 572 So. 2d 1014, 1015 (Fla. 4th Dist. Ct. App. 1991). 116. Of course, by the time Terry’s will is contested, these facts will all be speculative, as Terry—the individual in the best position to explain her will—is dead. For a brief examination of this “worst evidence” rule, see the introduction to Part IV. 680 Stetson Law Review [Vol. 46 courts presume that Terry may have preferred a gift to one of these individuals who predeceases her to go to her named residual takers or to her heirs at law, whether or not they received another devise under the will.
V. THE EXPANSION OF FLORIDA’S ANTILAPSE STATUTE FOR WILLS
Many of the issues associated with antilapse statutes and the construction of wills can be avoided by a professionally drafted instrument by a lawyer, where the donor’s intent is clearly stated and effectively applied following his or her death. For the average citizen, however, lawyers may be too expensive or thought to be unnecessary for a relatively modest estate. A will may be an attractive path for these individuals, but even then only a little more than half of the adults in the United States have written a will.117 For the half of Americans who have a post-death plan for at least some of their estate, the relevant state statutes may make it difficult for them to truly devise property according to their wishes. Because the goal of most state statutes relating to estate planning is to further the donor’s intent, it is crucial that legislative definitions of presumed intent develop along with family structures and reflect today’s society.
A. Aldrich v. Basile and the Difficulty of Laypeople Drafting Wills
Florida Supreme Court Justice Barbara Pariente penned a concurring opinion in the 2014 case of Aldrich v. Basile,118 which, although not involving antilapse statutes, seamlessly captured the difficulty of a layperson drafting his or her own will. The testator in Aldrich drafted her will using a preprinted “E–Z Legal Form,” which “was duly signed and witnessed”;119 however, after the will’s execution, the testator acquired new property not distributed by the provisions of the previously executed will.120 In a subsequent handwritten addendum to the testator’s will, she stated that she
117. Ashlea Ebeling, Americans Lack Basic Estate Plan,FORBES (Mar. 1, 2010, 6:22 PM), http://www.forbes.com/2010/03/01/estate-tax-living-will-schiavo-personal-finance-no- estate-plans.html. 118. 136 So. 3d 530 (Fla. 2014). 119. Id. at 531. 120. Id. at 531–32. 2017] The Modern Family 681 wanted “all [her] worldly possessions” to pass to her brother.121 This addendum was not properly witnessed and executed in accordance with Florida’s Probate Code, and thus could not properly be enforced as a testamentary instrument.122 However clear the testator’s true intent, her property could not pass in accordance with her intent because the property acquired after the will’s execution was neither properly incorporated into the original will nor into a properly executed addendum to the will.123 Florida’s Supreme Court held that the properly executed original will was unambiguous and any extrinsic evidence (i.e. the addendum) could not properly be considered when construing the provisions of the testator’s estate.124 Accordingly, the testator’s estate passed by the provisions in the original will, regardless of whatever intent may have been expressed in the addendum.125 While Justice Pariente believed that the majority reached the correct result by interpreting the Florida Probate Code, she recognized that the outcome under Florida law was in clear conflict with the testator’s true intent as shown by evidence that could not be legally considered.126 While a layperson may choose to employ a preprinted form such as that used by the testator in Aldrich, it is likely that this form will be inadequate to completely devise the testator’s estate. While resources may be saved when the will is drafted by using a preprinted form instead of the aid of experienced legal counsel, these resources may later be exhausted should litigation ensue to construe the provisions of the will. To this end, in her concurring opinion, Justice Pariente suitably stated:
While I appreciate that there are many individuals in this state who might have difficulty affording a lawyer, this case does remind me of the old adage “penny-wise and pound-foolish.”
121. Id. at 533. 122. Id. Even though the testator signed the addendum, there was only one witness signature attached to the document. Florida’s probate code demands two witnesses to properly execute a testamentary document, and a will must strictly adhere to this requirement in order to be admitted into probate. FLA.STAT. § 732.502(1) (2016) (requiring two witnesses to a testator’s signature to effectuate a valid will); In re Estate of Dickson, 590 So. 2d 471, 472 (Fla. 3d Dist. Ct. App. 1991) (“[S]trict compliance with statutory requirements is a prerequisite for the valid creation or revocation of a will.”). 123. Aldrich, 136 So. 3d at 537. 124. Id. at 536. 125. Id. 126. Id. at 537 (Pariente, J., concurring). 682 Stetson Law Review [Vol. 46
Obviously, the cost of drafting a will through the use of a pre- printed form is likely substantially lower than the cost of hiring a knowledgeable lawyer. However, as illustrated by this case, the ultimate cost of utilizing such a form to draft one’s will has the potential to far surpass the cost of hiring a lawyer at the outset. In a case such as this, which involved a substantial sum of money, the time, effort, and expense of extensive litigation undertaken in order to prove a testator’s true intent after the testator’s death can necessitate the expenditure of much more substantial amounts in attorney’s fees than was avoided during the testator’s life by the use of a pre-printed form.127
Justice Pariente’s view in Aldrich expressed a valid concern with wills written by laypeople who are unaware of the statutory schemes empowering their testamentary instrument of choice. Because hiring an attorney is expensive and many individuals may not believe their estate necessitates professional expertise, using preprinted forms to draft a will—or worse, not drafting a will at all—may be appealing but ultimately prove inadequate following death. This marks another reason why Florida probate laws need updating to fit with the developing world of estate planning. With the broad leaps that antilapse statutes already make regarding donative intent, and to continue enforcing the probable intent of a common testator, Florida’s legislature must consider revising the antilapse statute for wills to reflect the changing relationships in today’s society. While an entire rehashing of the antilapse statute is improbable in the foreseeable future, Florida should follow the lead of the UPC in creating an antilapse statute that makes a preliminary change to account for the close relationship adults may have with their stepchildren.128
127. Id. at 538. 128. Allowing the descendants of a testator’s stepchild to take in the predeceased stepchild’s place is just one step the Florida legislature may take to update Florida’s antilapse statute for wills to conform to the changing family. Another notable relationship absent from the current section 732.603, Florida Statutes, is the testator’s spouse. Cf. FLA. STAT. § 732.603(1) (2016) (clarifying that, under current law, if the testator’s spouse receives a devise in the will but predeceases the testator, the spouse’s devise would lapse— that is, it will fall to the testator’s residual takers or intestate). Some states protect against this harsh result by including the testator’s spouse in the state’s antilapse statute. See supra text accompanying note 86. While this Article addresses the expansion of Florida’s antilapse statute for wills solely to the testator’s stepchild as an initial step, there are certainly further steps the Florida legislature may take to update the Florida Probate Code’s antilapse statute, by allowing, for example, the descendants of a testator’s spouse to take in a predeceased spouse’s place. 2017] The Modern Family 683
B. The Parent-Child Relationship
One way Florida may modify its antilapse statute for wills is by including a provision regarding application of the statute only if the testator shared a “parent-child relationship” with his or her stepchild. Of course, determining whether two individuals share a parent-child relationship is a daunting task. Courts historically hesitate to interfere with the family dynamic and risk making an improper decision for a family’s youth.129 Because of this, it is difficult to discern a uniform definition of what type of relationship properly qualifies as a parent-child relationship. The UPC gives some guidance regarding whether a parent-child relationship exists, and it may if the parent “[f]unctioned as a parent of the child”130 by behaving as a parent would and fulfilling duties that a parent is obligated to fulfill by virtue of his or her parentage.131 Legislatures and scholars alike have also provided factors to consider when determining if a parent-child relationship exists.132 While it might be difficult for a court to truly conclude that a parent-child relationship exists between two individuals, this type of relationship is a legitimate concern for inheritance rights in estate planning. With the need for the Florida legislature to reconsider its probate code to reflect modern families, the definition of a parent-child relationship may also be relevant to
129. Courts often employ a rudimentary balancing test between reluctance to interfere with a family and a genuinely-held desire to protect the state’s youth. “While we are loath to sanction government interference in the sacrosanct parent-child relationship, we are more reluctant still to forsake the welfare of our youth. Florida’s children are simply too important.” Padgett v. Dep’t of Health & Rehab. Servs., 577 So. 2d 565, 571 (Fla. 1991). 130. UNIF.PROB.CODE § 2-115(4). 131. Id. The UPC elaborates further on the definition of “[f]unctioned as a parent of the child” by supplying a detailed list of responsibilities and functions that a parent undertakes that may satisfy this definition, including: (1) custodial and decisionmaking responsibilities; and (2) caretaking and parenting functions. Id. § 2-115 cmt. 132. See, e.g.,CAL.PROB.CODE § 6454 (West 2015): [T]he relationship of parent and child exists between [a] person and the person’s foster parent or stepparent if both of the following requirements are satisfied: (a) The relationship began during the person’s minority and continued throughout the joint lifetimes of the person and the person’s foster parent or stepparent. (b) It is established by clear and convincing evidence that the foster parent or stepparent would have adopted the person but for a legal barrier. See also Terin Barbas Cremer, Reforming Intestate Inheritance for Stepchildren and Stepparents, 18 CARDOZO J.L. & GENDER 89, 97 (2011) (providing several factors that should be considered when determining whether a parent-child relationship exists between a stepparent and stepchild). 684 Stetson Law Review [Vol. 46 determine if the beneficiaries of a testator’s predeceased stepchild should be protected by Florida’s antilapse statute for wills. In the first hypothetical above, Terry and her stepchild, Sam, had a close relationship in Sam’s adolescence. Because Terry and Sam shared a meaningful relationship, it may be simple to establish that a parent-child relationship existed, even though Terry never formally adopted Sam. However, in the modified hypothetical above, in which Terry and Henry did not marry until Sam was an adult, it is less clear that Terry and Sam shared a parent-child relationship because they were not acquainted during Sam’s adolescence. As antilapse statutes are intended to reflect the probable intent of a common testator, legislatures may be hesitant to afford antilapse protection to the relationship between Terry and Sam in the second hypothetical. To rectify the complicated familial situations in which issues like this arise, the Florida Probate Code antilapse statute should consider the existence of a parent-child relationship between the testator and the predeceased stepchild in order to determine whether the stepchild’s descendants should be afforded antilapse protection.
C. The Necessary Expansion of Florida’s Antilapse Statute for Wills
A revised antilapse statute for wills in Florida may incorporate language requiring a parent-child relationship between the testator and stepchild in the stepchild’s adolescence in order for the relationship to be protected. The Florida legislature’s incorporation of this language in the Florida Probate Code’s antilapse statute will provide incremental protection for a developing family while still alleviating the concern that expanded antilapse statutes may disregard the intent of the testator.
1. Florida’s Antilapse Statute for Wills: A Model
To expand Florida’s antilapse protection for wills to include the descendants of a testator’s predeceased stepchild, section 732.603, Florida Statutes, should be remodeled as follows: 2017] The Modern Family 685
(1) Unless a contrary intent appears in the will, if a devisee who is a grandparent, or a descendant of a grandparent, or a stepchild,133 of the testator:
(a) Is dead at the time of the execution of the will;
(b) Fails to survive the testator; or
(c) Is required by the will or by operation of law to be treated as having predeceased the testator,
a substitute gift is created in the devisee’s surviving descendants who take per stirpes the property to which the devisee would have been entitled had the devisee survived the testator. . . .
(3) In the application of this section: . . .
(b) The term: . . .
5. “Stepchild” includes only an individual with whom the testator shared a parent-child relationship before the individual reached twenty-one134 years of age that continued into the individual’s majority. A parent-child relationship is established by clear and convincing evidence if the testator functioned as the parent of the individual by openly behaving toward the individual in a manner consistent with being the individual’s parent and performing functions toward or on behalf of the individual that are customarily performed by a parent.135
133. The phrase “or a stepchild” added to Florida’s Antilapse Statute is the controlling provision allowing the descendants of the testator’s predeceased stepchild to inherit through the stepchild. Like the grandparent or descendant of a grandparent, adding “stepchild” to this list permits this additional relationship to be afforded antilapse protection. To ensure that the testator’s probable intent is respected, “stepchild” will be further defined in this model antilapse statute in section (3)(b) to clarify the necessary factors that must be met in order for the stepchild’s descendant to inherit. 134. Providing an age limit in the model statute may cut off some potentially viable claims of a parent-child relationship. However, this will also act as a slight simplification to a court’s application of the statute by providing a strict rule that must be met before further consideration of the parent-child relationship can commence. 135. The language from this model statute pulls in part from the provision in the UPC dealing with a parent-child relationship for the purposes of adoption. UNIF.PROB.CODE § 2-115. 686 Stetson Law Review [Vol. 46
a. Parent-Child Relationship Must Begin Before the Child Turns Twenty-One
This model statute seeks to further the testator’s probable intent by including general factors a court must look to when determining whether the requisite parent-child relationship existed between the stepparent and stepchild to afford the stepchild’s descendants antilapse protection. First, to allow the descendants of the testator’s predeceased stepchild to take in the stepchild’s place, courts must ensure that the relationship shared between the testator and the stepchild began before the child turned twenty-one. Generally, it is not unusual for definitions of a parent-child relationship to include a provision that the relationship must begin in the child’s minority.136 While the UPC provision addressing parent-child relationships does not specifically require that the relationship begin in the child’s minority, the comment to section 2-115 nevertheless states: “Ideally, a parent would perform all of the above functions throughout the child’s minority.”137 Additionally, the factors provided in section 2-115, that may be considered to determine the existence of a parent-child relationship, generally imply that such a relationship would begin in the child’s minority. For example, in the UPC, a parent-child relationship may exist if the parent ensured that the child’s nutritional needs were satisfied, provided residential care to the child, and assisted in the enhancement of the child’s developmental skills.138 These are factors one might employ when parenting a minor, rather than an adult. This model statute attempts to add some flexibility to the relational analysis by acknowledging that many parent-child relationships begin after the age of majority, while a child is still living in the parental home. While the age of majority in most American jurisdictions is eighteen,139 with the increasing number
136. See infra Part V(C)(3) (examining California’s probate code provision stating that a stepparent and stepchild must have a parent-child relationship during the child’s minority in order for the stepchild to inherit from the stepparent). 137. UNIF.PROB.CODE § 2-115 cmt. 138. Id. 139. The legal age of majority is eighteen in each state in America with the exception of Alabama and Nebraska, where the legal age of majority is nineteen. Determining the Legal Age to Consent to Research,WASHINGTON UNIVERSITY IN ST.LOUIS (July 26, 2012), 2017] The Modern Family 687 of individuals attending college, many parents find that their children live with them up until, or beyond, the age of twenty- one.140 Because this model antilapse provision is intended to serve as a legislative stepping stone in Florida to a more workable probate code for blended families, requiring that the parent-child relationship begin by the time the child reaches a certain age will be an initially simple element for courts to apply.
b. The Parent Must Perform Parental Duties and Openly Hold Him or Herself Out to be the Parent of the Child
Under the model statute, the parent must have performed parental duties customarily performed by a parent and acted openly toward the child as his or her parent. Courts interpreting this provision may further develop the relatively broad description of parental function by applying and interpreting specific factors that are “customarily performed by a parent.”141 It is in this provision that the comment to section 2-115 of the UPC may become a helpful reference.142 The openness of the parent-child relationship is another important factor for courts to consider when interpreting the provisions of the model antilapse statute. Florida statutes have considered the propriety of an open and obvious relationship between parent and child in the context of establishing paternity when the biological parents are unmarried.143 Relevantly, if a man “openly held himself out to be the father of the child” he is properly “deemed to have developed a substantial relationship with the
https://hrpo.wustl.edu/wp-content/uploads/2015/01/5-Determining-Legal-Age-to- Consent.pdf. 140. See Richard Fry, A Rising Share of Young Adults Live in Their Parents’ Home,PEW RES.CENTER (Aug. 1, 2013), http://www.pewsocialtrends.org/2013/08/01/a-rising-share-of- young-adults-live-in-their-parents-home/. 141. UNIF.PROB.CODE § 2-115(4). 142. The UPC derives its definition of “functioned as a parent of the child” from the Restatement (Third) of Property: Wills and Other Donative Transfers. UNIF.PROB.CODE § 2-115 cmt. The Restatement lists four broad categories of parental function: (1) custodial responsibility; (2) decisionmaking responsibility; (3) caretaking functions; and (4) parenting functions. RESTATEMENT (THIRD) OF PROP.: WILLS &DON.TRANS. § 14.5 cmt. e (2011). Contained within each of these four categories are specific descriptions of actions which are included as parental functions. Id. A court applying the model antilapse statute may wish to look to any of these four categories of parental function to determine if the stepparent and stepchild shared a parent-child relationship. 143. FLA.STAT. § 63.062(2)(a) (2016). 688 Stetson Law Review [Vol. 46 child. . . .”144 Florida is not the only state to place importance on whether the parent openly holds him or herself out to be the parent of a child. For example, California also allows an unmarried father to establish paternity by openly holding the child out to be his own.145 In the context of antilapse statutes, if the stepparent openly held the stepchild out to be his or her own child, a court may be inclined to find that the requisite parent-child relationship existed to allow the descendants of the predeceased stepchild to take a devise in the stepchild’s place.
c. The Parent-Child Relationship Must be Established by Clear and Convincing Evidence
Finally, this model statute employs the “clear and convincing evidence” standard to properly establish a parent-child relationship between stepparent and stepchild. Black’s Law Dictionary defines clear and convincing evidence as “[e]vidence indicating that the thing to be proved is highly probable or reasonably certain.”146 On the burden of proof scale, clear and convincing evidence falls somewhere in between a “preponderance of the evidence” (the burden usually applied in civil matters) and “evidence beyond a reasonable doubt” (the burden applied in criminal matters).147 The clear and convincing standard is not uncommon in statutes regarding the division of an estate. For example, the Florida Probate Code allows a court to reform unambiguous terms in a will if the proponent of the reformation establishes by clear and convincing evidence “that both the accomplishment of the testator’s intent and the terms of the will were affected by a mistake of fact or law, whether in expression or inducement.”148 Similarly, if the settlor of a revocable trust has not established a particular method that must be used to revoke the trust, the Florida Trust Code allows the settlor to revoke the trust by
144. Id. § 63.062(2)(a)(1)(b)(2). 145. CAL.FAM.CODE § 7611 (West 2013) (“A person is presumed to be the natural parent of a child if the person . . . (d) . . . receives the child into his or her home and openly holds out the child as his or her natural child.”). 146. BLACK’S LAW DICTIONARY, supra note 23. 147. Id. 148. FLA.STAT. § 732.615 (2016). 2017] The Modern Family 689
“[a]ny . . . method manifesting clear and convincing evidence of the settlor’s intent.”149 The clear and convincing evidence standard also makes a regular appearance in the UPC, from which the model statute pulls the parent-child relationship analysis. Under the UPC, an individual is deemed to have predeceased a testator if it cannot be established by clear and convincing evidence that the individual survived for 120 hours after the testator’s death.150 Furthermore, an individual other than the birth mother is properly treated as the parent of a child born by assisted reproduction if it can be established by clear and convincing evidence that that individual intended to be treated as the parent of a posthumously conceived child.151 Finally, a parent-child relationship is proven by facts and circumstances establishing clear and convincing evidence of an individual’s intent to be treated as the parent of a gestational child conceived by the use of the individual’s sperm or eggs “after the individual’s death or incapacity.”152 Along these lines, by requiring a parent-child relationship to be established by clear and convincing evidence in order for the model antilapse statute to protect gifts to the descendants of a testator’s predeceased stepchild, Florida courts can better ensure that only those individuals who truly shared such a relationship are protected. This will enhance a court’s ability to further the testator’s true intent. If the proponent of the antilapse statute (i.e., the descendant of the predeceased stepchild) cannot establish that his or her parent (the testator’s stepchild) enjoyed a parent-child relationship with the testator, the descendant of the stepchild will be unable to take the devise and it will instead fall to the residue of the testator’s estate (or to the testator’s heirs at law, if there is no residual clause). This model statute ultimately ensures that Florida courts will be able to properly allow the descendants of a testator’s predeceased stepchild to take in the stepchild’s place provided it be shown that this was the testator’s true intention.
149. Id. § 736.0602(3)(b)(2). 150. UNIF.PROB.CODE § 2-702. 151. Id. § 2-120. 152. Id. § 2-121. 690 Stetson Law Review [Vol. 46
2. Establishing a Presumption of the Existence of a Parent- Child Relationship
To enhance judicial efficiency, the Florida legislature may consider adding a provision to the model statute that creates a rebuttable presumption of the existence of a parent-child relationship should key factors be established. Section 732.603, Florida Statutes, would thus also include the following provision:
(3) In the application of this section: . . .
(c) A rebuttable presumption of a parent-child relationship is established if the proponent of the relationship shows by clear and convincing evidence that the child resided with the testator (1) full time for more than six (6) months prior to the child’s 18th birthday or (2) at least fifty (50) percent of the time for one (1) year prior to the child’s 18th birthday.
A rebuttable presumption may be defined as “[a]n inference drawn from certain facts that establish a prima facie case, which may be overcome by the introduction of contrary evidence.”153 The Florida Statutes create rebuttable presumptions in a variety of contexts, with the presumption of undue influence particularly notable in the Florida Probate Code.154 While the party alleging that the will was procured through undue influence still has the initial burden of providing evidence to establish the undue influence, this burden can be met by providing enough evidence to establish a presumption that the will was secured by undue influence.155 This presumption is rebuttable—that is, it is now the other party’s responsibility to provide evidence overcoming the
153. BLACK’S LAW DICTIONARY, supra note 23. 154. FLA.STAT. § 733.107(1) (2016). The Florida legislature revised section 733.107 in 2002 to add a burden shifting framework to the undue influence analysis. Id. § 733.107(2). 155. Steven G. Nilsson, Florida’s New Statutory Presumption of Undue Influence: Does It Change the Law or Merely Clarify?,FLA. B.J., Feb. 2003, at 20, 24. Mr. Nilsson comments on the revised statute’s burden-shifting framework, which conflicted with prior Florida caselaw holding that “the burden of proof in a will contest must remain with the party contesting the will.” Id. at 22. See also In re Estate of Carpenter, 253 So. 2d 697, 704 (Fla. 1971) (holding that “the burden of proof in will contests shall be on the contestant to establish the facts constituting the grounds upon which the probate of the purported will is opposed”). 2017] The Modern Family 691 presumption of undue influence.156 If that party can successfully do so, the party alleging undue influence has failed to meet the statutory burden.157 Conversely, the Florida Probate Code has also prescribed situations where no such rebuttable presumption arises: such as when two individuals make joint or mutual wills.158 In this situation, a presumption does not arise that there existed a contract to make or not to revoke the wills.159 The rebuttable presumption is a useful tool because it places the burden of proof on the opposing party to argue that whatever is presumed is in fact untrue. In the context of this model statute, a presumption that a parent-child relationship existed between the testator and his or her stepchild would arise if the stepchild resided with the testator full time for more than six months, or at least fifty percent of the time for one year, before the stepchild turned eighteen. If the opposing party does not introduce sufficient contrary evidence to the proposition that the parent-child relationship existed, then the parent-child relationship is properly established. The inclusion of a presumption in the model statute will provide a simple method for courts to apply in situations such as the first hypothetical above,160 where Terry’s stepson, Sam, lived with Terry at least fifty percent of the time beginning when Sam was ten-years-old. Because the elements of the model statute are met, a presumption would be established that Terry and Sam shared a parent-child relationship. Unless the opponent provides evidence that such a relationship did not exist, Darcy (Sam’s daughter) would be able to take the devise to Sam in his place under the shortcut provided in the model statute.
156. Nilsson, supra note 155, at 25. Whether a party has overcome the presumption of undue influence is a fact-specific analysis; however, Florida courts have generally stated that this presumption may be overcome by a preponderance of the evidence. See, e.g., Hack v. Janes, 878 So. 2d 440, 444 (Fla. 5th Dist. Ct. App. 2004) (adopting the preponderance of the evidence standard for a contested will due to an exercise of undue influence). 157. Nilsson, supra note 155, at 25. 158.FLA.STAT. § 732.701(2) (2016). 159. Id. 160. See supra Part IV(B). 692 Stetson Law Review [Vol. 46
3. The Model Statute Will Not Impose an Undue Burden on the Judicial System
While it may be argued that incorporating a test into the antilapse statute requiring courts to determine the existence of a parent-child relationship places a burden upon the judicial system, Florida would not be the first state to include such a factors test in its probate code. California’s probate code is illustrative.161 To determine whether a stepchild may inherit from a stepparent, a California court applying the state’s probate code must ensure that two factors are met: (1) “The [parent-child] relationship began during the person’s minority and continued throughout the joint lifetimes of the person and the person’s . . . stepparent,” and (2) “[i]t is established by clear and convincing evidence that the foster parent or stepparent would have adopted the person but for a legal barrier.”162 As in Florida, a stepparent in California must obtain consent from the child’s biological parents in order to adopt the child.163 This necessarily may impose a burden on the stepparent, inhibiting his or her ability to adopt the stepchild.164 If a biological parent is unwilling to consent to the adoption, the stepparent will be unable to adopt the stepchild even if they enjoy a substantial parent-child relationship. This lack of a legal relationship between stepparent and stepchild may be one of the reasons Florida has avoided expanding its antilapse statute for wills to include this relationship in the first place. However, when considering the leap the Florida Trust Code already makes in foregoing a relational barrier to antilapse protection, the wide array of families in America today, and the many reasons why a stepparent may not adopt his or her stepchild, expanding Florida’s antilapse statute
161. CAL.PROB.CODE § 6454 (West 1993). 162. Id. 163. In Florida, consent from the child’s birth mother must be obtained prior to the child’s adoption by a stepparent. FLA.STAT. § 63.062(1)(a) (2016). Additionally, consent from the child’s biological father must be obtained if the father has satisfied any of several enumerated factors that determine his parentage. Id. § 63.02(1)(b). See also CAL.FAM. CODE § 9003 (West 2011) (stating that consent of the child’s birth parents must be obtained in a signed writing in order for a stepparent to adopt the child). 164. Of course, there is a plethora of other reasons why a stepparent may not adopt a stepchild, such as the parties’ feeling that such a legal measure is unnecessary when they already share such a strong bond. Though there may be no legally recognized relationship between parent and child, a strong familial relationship may still exist. Whatever the reason a stepparent has for not adopting his or her stepchild, it is imperative that statutes develop to protect those families where legal adoption is not pursued. 2017] The Modern Family 693 for wills to protect the parent-child relationship shared between stepparent and stepchild is a logical first step for the Florida Probate Code in providing workable solutions for blended families. Thus, Florida’s antilapse statute must provide protection for the situation where a testator shared a close relationship with his or her stepchild irrespective of their legal relationship. Even though determination of the existence of a parent-child relationship between the testator and his or her stepchild will add some extra burden on the courts, ultimately “the United States Supreme Court has repeatedly acknowledged that states have a legitimate interest in developing statutory classifications that promote an ‘accurate and efficient method of disposing of property at death’ despite additional judicial responsibility.”165 Because the UPC and other states have already enacted antilapse statutes protecting a devise to the testator’s stepchildren,166 Florida would not be alone in its attention to the valuable relationship many testators share with their stepchildren and the descendants of their stepchildren.
VI. CONCLUSION
Florida’s antilapse statute for wills is presently much narrower than its equivalent statute for trusts. While the antilapse statute for trusts protects gifts to any beneficiary, the statute for wills protects only beneficiaries who are the testator’s grandparents and the descendants of the testator’s grandparents. Some states and the UPC have expanded antilapse statutes to include stepchildren, and the Florida legislature should consider doing the same and expand the state’s antilapse statute for wills to reflect changes in today’s society. Should the model antilapse statute presented by this Article be enacted in Florida, it will serve to increase the scope of relationships covered by the Florida Probate Code’s antilapse provision. By initially revising the Florida Antilapse Statute to protect gifts to stepchildren who enjoyed a parent-child relationship with the testator before the stepchild turned twenty- one, Florida would take the first step in promoting presumed
165. Cremer, supra note 132, at 108 (quoting Lalli v. Lalli, 439 U.S. 259, 265 (1978); Trimble v. Gordon, 430 U.S. 762, 766 (1977)). 166. See supra text accompanying notes 84–85 (explaining that Michigan and New Mexico have enacted antilapse statutes protecting a devise to the testator’s stepchildren). 694 Stetson Law Review [Vol. 46 testator intent in a modern society. The legislature’s adoption of a broader antilapse statute will assure Florida citizens that it is aware of the developing familial landscape and is willing to adopt statutes that make estate planning more workable for families when there are complicated relationships at play. RECENT DEVELOPMENTS*
STETSON LAW REVIEW CITY, COUNTY, AND LOCAL GOVERNMENT LAW DIRECTORY OF TOPICS FOR RECENT DEVELOPMENTS
Agency Authority ...... 06-617, 619, 622; 08-638; 14-428 Agency for Healthcare Constitutional Law Administration (AHCA)...... 16-575 (see also Land Use Planning & Zoning and Public Employment) Annexation Amendments ...... 03-561, 563; 05-863; (see also Municipal Authority) ...... 09-651; 10-475 ...... 04-689, 691; 06-609; 07-483, 485; Citizen Initiative ...... 09-654 ...... 08-623, 625, 627 Civil Rights § 1983...... 04-697, 701, ...... 703, 706; 06-625, 628, 631; Bail Bonds ...... 07-501; 08-641; 17-705, 707 Civil Rights Title VII...... 07-503 Bond Forfeiture...... 12-533 Contracts Clause Protections...... 15-599 Cash Bonds Due Process...... 03-565; Withholdings...... 10-459 ...... 04-709, 712, 714; 05-829; Surety Bond Contracts ...... 11-525; 15-601 Material Breach ...... 10-463 Eleventh Amendment ...... 07-506 Equal Protection ...... 03-570; 04-717; Communications Privacy ...... 05-832; 06-632; 12-543; 13-895; 15-603; Recording 911 Calls...... 09-627 ...... 16-581 Fifth Amendment ...... 04-720 Condemnation & Eminent Domain First Amendment ...... 08-631 ...... 04-723, 726, 730; 05-832; 06-635; Apportionment of Proceeds ...... 13-883 ...... 08-642, 645; 14-431, 434; 16-583, 585, 587, Attorney Fees...... 03-559; 07-489; ...... 589; ...... 09-631, 633; 10-467; 13-885 Adult Business Use ...... 03-581, 637; Blight...... 07-491 ...... 06-638; 13-898 Dedication ...... 09-635 Elections...... 03-568, 586; 10-477 Due Process ...... 05-823 Ordinances ...... 05-834; 17-712, 714 Historical Preservation...... 09-639 Privacy ...... 06-641 Injunctive Relief ...... 06-611 Public Employment...... 07-508; 17-709 Inverse Condemnation...... 06-613, 615; Religious Freedom ...... 03-573; 05-838 ...... 07-494; 08-633; Signs & Billboards...... 03-592; 05-842; ...... 11-517; 12-535; 13-887; 14-421 ...... 06-645 Ripeness...... 11-519 Funding, State Court System...... 10-479; 12-541 Judicial Conflict ...... 08-636 Inverse Condemnation Necessity...... 09-641 Takings...... 04-720 Public Easements ...... 15-593 Homestead ...... 08-648, 650 Quick-take Proceedings...... 15-595; 16-577 Liberty Interests...... 05-845 Regulatory Takings...... 11-521; 12-537; 13-889 Ordinances ...... 09-656, 658; 13-901 Riparian Rights ...... 07-497 Privacy ...... 05-846 Ripeness & Preclusion ...... 09-644; 14-423, 425 Privileges...... 16-591 Temporary Takings ...... 09-648 Property Appraiser Standing...... 09-661 Unconstitutional Exactions & Conditions Regulatory Takings ...... 10-469 Bert J. Harris Act ...... 07-511 Utility Easements ...... 13-892 Religious Freedom Valuation ...... 04-693; 05-826; FRFRA ...... 05-849 RLUIPA...... 06-649; 07-514
* Decisions editorially summarized as nationally reported through December 2016. Our editorial summar- ies in this Recent Developments Section will emphasize subjects of direct interest to municipal-corporation and local-government-entity practitioners and academics. Citation style has been adapted for these purposes. For infor- mation about a case’s procedure, pleadings, and other subjects, you should read the case directly. 696 Stetson Law Review [Vol. 46
Search & Seizure ...... 08-652; 14-436; 17-716 Referendums...... 08-668 Separation of Powers ...... 15-605 Time to Challenge...... 13-924 Sixth Amendment ...... 14-438 Authority and Uniformity ...... 16-607 Standing...... 03-597; 04-732, 735; Bond Financing ...... 03-610; 08-670; ...... 09-663; 13-903 ...... 11-549; 13-926 Ripeness...... 11-528 Calculating Claims of Lien...... 09-694 Creation of Trusts ...... 16-609 Deeds...... 03-619 State Action ...... 04-735 Distinguishing “Tax” and “Fee”...... 15-625 Taxes and Due Process ...... 16-592 Equitable Ownership ...... 17-735 Voting Rights ...... 05-853 Excise Tax Limitations ...... 11-554 Exemptions ...... 09-697; 12-551; 17-737 Discrimination Exhaustion of Administrative Remedies Fair Housing Act...... 16-595, 597 ...... 09-698 Fees & Tolls ...... 07-531; 14-449 Franchise Fees...... 06-665 Education Homestead Exemption...... 10-493; 12-553, 555 (see Constitutional Law and ...... 13-930; 15-627; 16-610, 612 Public Education) Immunity ...... 12-557 Charter Schools...... 15-609 Impact Fees ...... 07-535; 08-672 Joint Ownership ...... 09-701 Elections & Voting Rights Nontax Revenues (see also Constitutional Law) Environment, Water & Absentee Ballots...... 11-531 Waste Handling ...... 04-743; 11-543 Ballot Initiatives ...... 11-533; 13-907 Special Assessments...... 03-617; Ballot Summary ...... 03-601; 08-655; ...... 06-667, 670, 671; ...... 09-669; 14-441 ...... 11-557, 559; 13-932; 16-614 Ballot Title & Summary...... 09-671; Surplus Funds...... 14-452 ...... 13-909, 912 Tax Assessment ...... 17-731, 733 Campaigns ...... 09-674; 13-914 Tax-Deed Sale ...... 05-871; 08-675, 677; Candidate Qualifications ...... 09-676; 17-719 ...... 10-496 Candidate Residency Requirements Standing ...... 04-756 ...... 15-613, 614 Non-Ad Valorem Tax...... 03-614 Challenges ...... 05-857; 07-519 Tax Increment Financing ...... 09-705, Election Code...... 07-521; 08-657; ...... 708, 713 ...... 11-535 Tourist Development Act ...... 16-616 Violations...... 11-537 Political Parties ...... 10-483; 13-915 Government Contracting Post-Election Litigation ...... 15-616 ...... 04-759; 06-675 Provisional Ballots...... 05-860 Breach...... 05-875; 14-455 Resign-to-Run Rule ...... 09-679; Contracts & Agreements ...... 03-704; ...... 11-540; 12-547 ...... 08-681; 09-719; 14-459 Term Limits ...... 12-548; 13-917; 14-443; 17-721 Damages ...... 11-563; 14-461 Vote Dilution ...... 03-722 Franchise Agreements...... 03-623 Voting Methods and Procedures...... 16-601 Franchise Fees...... 05-877 Indemnification ...... 03-625 Eminent Domain Indemnification & Equitable Exercise of Religious Freedoms...... 09-683 Public Bidding ...... 05-879, 882; 07-539; ...... 08-683; 10-499, 500; 12-561 Environment Endangered Species...... 03-634 Government Officials State Preemption of Local Law ...... 15-619 Discovery ...... 12-563 Waste & Water Handling...... 11-543 Legislative Immunity ...... 12-565 Water Rights...... 09-687 Qualified Immunity ...... 09-723; 13-935 Water Supply Plans ...... 15-621 Government Property Finance & Taxation ...... 04-739 Discovery ...... Adequacy of Notice...... 09-689 Fee Titles & Easements ...... 06-679 Ad Valorem ...... 03-561, 605, 607; ...... 04-745, 748, 750, 753, 755; Government Tort Liability ...... 05-863, 866, 868; Notice of a Claim ...... 15-631 ...... 06-655, 657, 662; ...... 09-692; 10-487, 489; 14-447; ...... 16-603, 605 Health & Safety Corrections...... 07-525 Codes & Enforcement ...... 04-763 Exemptions ...... 07-527; 08-661, 665; ...... 10-491; 11-547; 13-921; 17-725, 727, 729 Home Rule (Charter & Non-Charter) Immunity ...... 07-529 ...... 06-683 2017] Recent Developments 697
State Supremacy...... 04-767; 14-463 Review ...... 05-898, 901; 06-701, 703 Standing ...... 03-654; 04-784; 05-904 Immunity Substantive Due Process ...... 03-565 (see Tort Liability & Takings ...... 05-887; 06-706; Governmental Immunity) ...... 09-735, 738; 10-526, 529; 14-478 Regulatory Takings ...... 07-554; 14-473 Statute of Limitations...... 10-532; 14-473 Judges Temporary Takings...... 05-906 Discipline...... 10-503 Telecommunications Act...... 16-631 Variance...... 03-655, 657 Land Use Planning & Zoning...... 04-771 Vested Rights...... 03-629; 05-909; 08-706 ...... 12-569 Utilities ...... 17-747 Administrative/Judicial...... 03-634, 654; ...... 04-775; 11-567, 569 Meetings & Procedures Adult Business...... 03-581, 637; (see Public Records & Meetings) ...... 11-571 Bert Harris Act ...... 15-635, 638; 16-621; 17-739 Bert Harris Act Settlement Agreements Municipal Authority ...... 15-640 (see also Ordinances & Regulations) Breach of Contract...... 05-887 ADA...... 08-709 Collateral Estoppel ...... 07-543 Annexation...... 05-913 Communication Towers City Charters ...... 05-914; 06-709; 07-559; ...... 03-648; 06-687 ...... 08-712, 714; 14-483 Community Plans...... 16-623 Code Enforcement ...... 06-710; Comprehensive Plan...... 05-890; 12-571 ...... 10-535, 537, 539; Amendments...... 03-639; 05-892; ...... 11-593, 596 ...... 07-546, 549; 08-687; 10-507; County Expenditures ...... 10-541 ...... 11-573 Court Costs ...... 10-544 Consistency ...... 08-689; 09-725; 10-510; Law Enforcement Investigations ...... 11-577, 581; 12-573 ...... 10-546 In Compliance...... 04-778; 08-691, 695 Police Power Controls...... 05-916; 10-549; Noncompliance ...... 09-728; 10-512 ...... 11-598 Condemnation ...... 09-730 Fluoridation...... 03-661 Constitutional Requirements...... 08-697; Red Light Programs ...... 17-751, 752 ...... 10-515; 12-575 Special Assessments ...... 16-635 Constitutionality of County Traffic Regulation ...... 15-649 Code ...... 16-625 Water Rights County Development Orders ...... 15-642 Jurisdiction ...... 10-550 Development Orders...... 06-689; 13-939; ...... 14-467 Municipalities Statute of Limitations...... 11-583 Acting in Proprietary Capacity ...... 10-553 Development Regulations...... 07-551; Notice of Claims...... 09-743 ...... 08-700; 12-577 Enterprise Zones ...... 15-644 Ordinances & Regulations Equitable Estoppel...... 03-643; 11-584; (see also Municipal Authority and ...... 14-469 Constitutional Law) Federal Preemption ...... 03-648 Billboards ...... 03-592; 12-585 Florida Right to Farm Act ...... 12-579 Challenges...... 10-557 Injunctions/Permitted Uses Construction Licensing ...... 12-588 ...... 06-692, 694; 10-517 Curfew ...... 03-665 Inverse Condemnation...... Due Process...... 05-921; 12-590 Statute of Limitations...... 11-586 Indigent Representation ...... 09-747 Judicial Interpretation...... 10-520; 14-471 Injunctions ...... 05-925; 06-715 Mobile Homes...... 08-702 Municipality-Sponsored Mobile Modular Homes, Trailers & Monopolies...... 05-928; 11-601 Recreational Vehicles...... 03-651 Noise...... 08-719; 13-945 Nonconforming Use ...... 05-896; 12-582 Nuisance Abatement...... 05-916; 07-563 Challenges...... 06-696 Public Nuisance...... 05-931 Ripeness...... 06-698 Sign Code...... 05-934 Referendum and Initiative...... 15-645 State Preemption...... 04-789, 791; Rezoning...... 04-780, 782; 08-704; ...... 06-717, 718, 720, 722; 07-564; ...... 11-589; 17-744 ...... 09-749; 11-602; 12-592, 594; 13-947 Ripeness...... 16-627 Usage Restrictions ...... 05-937 Separation of Powers ...... 09-732; 14-476 Special Approval ...... 16-629 Police Special Exceptions...... 13-941 (see also Tort Liability & Special Injuries ...... 17-742 Governmental Immunity) Special-Use Permit ...... 10-523 Forfeiture ...... 03-669; 04-793, 796; Standard of Judicial ...... 06-725, 728, 730; 07-567; 698 Stetson Law Review [Vol. 46
...... 10-561 563, 565; 12-597, 599; 14-487 IDEA ...... 07-585 Immunity...... 03-671, 673, 677; School Boards & Superintendents ...... 07-569, 572, 575; 08-723; ...... 09-767 ...... 09-753 Statute of Limitations...... 09-769 Juvenile Waivers of Miranda Rights ...... 09-755 Public Employment Malicious Prosecution ...... 13-951, 954 (see also Police) ...... 04-821 Payment of Attorney’s Fees ...... 10-568 ADA, Disability...... 04-823, 825; 05-941 Probable Cause...... 06-732 Benefits ...... 09-773; 12-619; 14-495 Retirement Benefits ...... 09-759 Civil Procedure...... 05-944, 952 Seizing Firearms ...... 17-757 Civil Rights...... 07-589 Training...... 04-703 Collective Bargaining ...... 09-775; 11-619; ...... 12-621, 624; 13-973; 14-497; 15-669; Practice & Procedure ...... 04-799 ...... 16-647, 648; 17-775 Affirmative Defenses ...... 17-761 Financial Urgency Statute...... 13-975 Appellate ...... 03-706 Demotion...... 03-685 Appellate Attorney’s Fees ...... 16-639 Discharge ...... 05-947; 07-590; 10-591; 12-627; Civil Contempt...... 10-571 ...... 14-499 Class Certification ...... 06-735; 08-727 Discrimination...... 04-825; 07-593 Clerical Error ...... 09-763 Due Process...... 05-950, 952; 12-629; 14-502 Collateral Estoppel ...... 04-803 Ethics ...... 05-954; 08-741 Contempt Sanctions ...... 15-653 FMLA...... 07-595 Damages ...... 17-763 Forfeiture of Retirement Benefits Declaratory Judgments ...... 10-573 ...... 09-779 Discovery...... 06-737; 07-579; 13-957 Freedom of Speech ...... 16-650 Dispute Resolution ...... 17-765 Impact Bargaining...... 12-631 Exhaustion of Administrative Remedies ...... Labor Relations ...... 03-688; 04-828; ...... 11-609; 12-601; 13-959, 960; ...... 05-957; 06-745, 747; 10-593, 596 ...... 14-489; 15-655, 657; 16-641 Pensions and Retirement...... 15-671; 17-777 Filing ...... 08-729; 12-603 Pension Benefits ...... 08-743; Frivolous Appeals...... 15-659 ...... 11-620, 624, 626 Home Venue Privilege ...... 06-740; 10-576; Patents ...... 03-691 ...... 11-611 Retaliation...... 09-781; Hybrid Appeals ...... 15-661 ...... 11-631; 13-976, 978 Indigent Litigants ...... 15-664 Retaliatory Discharge...... 15-673 Interpleader...... 13-962 Salaries, Pensions & Benefits Jurisdiction ...... 12-605, 607; 14-491 ...... 03-693; 05-960; 14-504 Law of the Case Doctrine ...... 13-964 Statute of Limitations...... 09-783; 10-598; Pleading ...... 17-767 ...... 11-634 Preservation of Error ...... 06-742 Tort Claims ...... 06-749 Scope of Review...... 04-806; 10-578; 12-609 Unlawful Compensation ...... 05-962 Service of Process ...... 12-612; 13-966 Veterans’ Preference...... 13-981; 15-675 Settlement Agreements ...... 15-665 Whistle-blower Protection Act Standing...... 13-968; 17-770 ...... 10-600; 14-506; 16-654 Standing/Environment...... 12-614 Workers’ Compensation...... 04-832; Permitting ...... 10-580 ...... 06-751, 753, 755; 07-599; 08-745, 747; Statute of Limitations ...... 16-642 ...... 10-602, 604; 11-636; Subject Matter Jurisdiction...... 12-617 ...... 15-678, 680 Trial Jurisdiction...... 04-809 Public Records & Meetings...... 04-835 Venue...... 03-681 ...... 08-751 Writ of Mandamus ...... 11-614; 17-771 Attorneys’ Fees ...... 17-779, 780, 783 Writ of Prohibition ...... 07-581 Capital Defendant's Public Records Request ...... 15-683 Public Contracts Copyrights...... 06-759 (see also Government Contracting) Electronically Stored Contracts & Agreements...... 03-704 Communications...... 03-697; 12-635 Exemptions ...... 03-699, 701; 04-838; Public Education ...... 06-761, 762; 10-607, 609; (see also Public Employment and ...... 11-639, 641; 13-985; 14-509, 510 Tort Liability & Governmental Journalist’s Privilege ...... 12-637 Immunity) ...... 04-815 Labor Costs ...... 09-787, 17-789 Adverse Personnel Actions ...... 10-585 Mandamus Relief...... 15-686 Boards Private Entities ...... 09-789 Discipline...... 04-706; 11-617 Public Records Act Exemptions.... 15-688; 17-785 Harassment & Misconduct...... 04-817 Public Records Requests ...... 16-657, 658, 660; Charter Schools...... 08-733, 735, 738; ...... 17-787 ...... 10-587 Recorded Inmate Conversations ...... 11-644 2017] Recent Developments 699
Sunshine Law...... 03-704, 706; 05-965; ...... 07-601, 603; 09-791; 10-612; ...... 11-646, 650, 651; 14-512; 15-690, 692
Public Utilities Rates...... 04-743; 06-765 Sovereign Immunity ...... 13-987
Referendum (see Home Rule)
Signs & Billboards (see Constitutional Law)
State Preemption ...... 04-841
Sunshine Law (see Public Records & Meetings)
Taxation (see Finance & Taxation)
Tort Liability & Governmental Immunity ...... 10-615 Agent Liability ...... 16-663 Claims against Government Entities ...... 10-618; 16-665 Duty of Care ...... 05-969, 974; 06-767; ...... 07-607; 08-753; 12-641; 13-991; ...... 14-515, 517 Evidentiary Requirements ...... 17-793 Jurisdiction ...... 03-681, 711 Public Lands ...... 03-716 Release from Liability...... 08-755 Scope of Employment...... 05-976; 08-757; ...... 11-641 Sexual Harassment ...... 08-759; ...... 13-994, 996 Sovereign Immunity ...... 04-845; 06-769; ...... 10-620; 11-655, 657; 12-643, 645, 648 ...... 13-998; 14-521, 523; 17-794 Swimming Area ...... 03-713, 716; 06-770; ...... 12-651 Third-Party Contracts ...... 03-718; 06-77
STETSON LAW REVIEW CITY, COUNTY, & LOCAL GOVERNMENT LAW TABLE OF CASES FOR RECENT DEVELOPMENTS
American Heritage Window Fashions, LLC v. Department of Revenue, 191 So. 3d 516 (Fla. 2d Dist. Ct. App. 2016) ……….……………17-731 Bair v. City of Clearwater, 196 So. 3d 577 (Fla. 2d Dist. Ct. App. 2016) …….………………17-739 Blair Nurseries, Inc. v. Baker County, 199 So. 3d 534 (Fla. 1st Dist. Ct. App. 2016) …………..………..17-744 Board of County Commissioners Indian River County v. Graham, 191 So. 3d 890 (Fla. 2016) …………...... ………...... 17-747 Board of Trustees, Jacksonville Police & Fire Pension Fund v. Lee, 189 So. 3d 120 (Fla. 2016) ………………………….………………17-779 Chmielewski v. City of St. Pete Beach, No. 8:13-cv-3170-T-27MAP, 2016 WL 761032 (M.D. Fla. Feb. 26, 2016) …………………………………………..17-716 Citizens Awareness Foundation, Inc. v. Wantman Group, Inc., 195 So. 3d 396 (Fla. 4th Dist. Ct. App. 2016) ………………...…17-780 City of Fort Lauderdale v. Dhar, 185 So. 3d 1232 (Fla. 2016) ……...... 17-751 City of Fort Pierce v. Treasure Coast Marina, LC, 195 So. 3d 1141 (Fla. 4th Dist. Ct. App. 2016) ………………….17-725 City of Hollywood v. Bien, 209 So. 3d 1 (Fla. 4th Dist. Ct. App. 2016) ………………………17-777 City of Miami v. Navarro, 187 So. 3d 292 (Fla. 3d Dist. Ct. App. 2016) …………………….17-793 City of Miami v. Village of Key Biscayne, 197 So. 3d 580 (Fla. 3d Dist. Ct. App. 2016) …………………….17-765 Cookston v. Office of the Public Defender, 204 So. 3d 480 (Fla. 5th Dist. Ct. App. 2016) ……………………17-787 Cunningham v. School Board of Lake County, No. 5:15-cv-480-Oc-30PRL, 2016 WL 1755612 (M.D. Fla. May, 3 2016) ………………………...... 17-705 702 Stetson Law Review [Vol. 46
Dougan v. Bradshaw, 198 So. 3d 878 (Fla. 4th Dist. Ct. App. 2016) ……………………17-757 Endsley v. Broward County, 189 So. 3d 938 (Fla. 4th Dist. Ct. App. 2016) ……………………17-737 Forest Brooke/Hillsborough, LLC v. Henriquez, 194 So. 3d 1091 (Fla. 2d Dist. Ct. App. 2016) …………………..17-733 Genesis Ministries, Inc. v. Brown, 186 So. 3d 1074 (Fla. 1st Dist. Ct. App. 2016), reh’g denied (Mar. 28, 2016) ………………….…...... 17-727 Harris v. City of Boynton Beach, No. 9:16-cv-80148, 2016 WL 3971409 (S.D. Fla. July 25, 2016) ……………………………………………17-767 Heffernan v. City of Paterson, 136 S. Ct. 1412 (2016) ………………………………………………17-709 Herbits v. City of Miami, 207 So. 3d 274 (Fla. 3d Dist. Ct. App. 2016) .…….…………….17-742 Hoefling v. City of Miami, 811 F.3d 1271 (11th Cir. 2016) ……………………………………17-707 Homeless Helping Homeless, Inc. v. City of Tampa, No. 8:15-cv-1219-T-23AAS, 2016 WL 4162882 (M.D. Fla. Aug. 5, 2016) ……………………………………………17-712 Island Resorts Investments, Inc. v. Jones, 189 So. 3d 917 (Fla. 1st Dist. Ct. App. 2016) ……………………17-735 Jones v. Miami Herald Media Co., 198 So. 3d 1143 (Fla. 1st Dist. Ct. App. 2015) …………………..17-785 Lee Amato and Donald Lewis Bouchard v. City of Miami Beach, 208 So. 3d 235 (Fla. 3d Dist. Ct. App. 2016) ……………………17-775 Levy v. Woods, 195 So. 3d 1161 (Fla. 4th Dist. Ct. App. 2016) …………………17-721 Magnum Construction Management Corporation v. City of Miami Beach, 209 So. 3d 51 (Fla. 3d Dist. Ct. App. 2016) ……………………..17-763 Miami-Dade County Board of County Commissioners v. An Accountable Miami-Dade, 208 So. 3d 724 (Fla. 3d Dist. Ct. App. 2016) ………………….…17-771 Miles v. Parrish, 199 So. 3d 1046 (Fla. 4th Dist. Ct. App. 2016) …………………17-729 Schweickert v. Citrus County Florida Board, 193 So. 3d 1075 (Fla. 5th Dist. Ct. App. 2016) ……………….…17-783 2017] Recent Developments 703
State ex rel. City of Aventura v. Jimenez, 211 So. 3d 158 (Fla. 3d Dist. Ct. App. 2016) ……………………17-752 Town of Gulf Stream v. Palm Beach County, 206 So. 3d 721 (Fla. 4th Dist. Ct. App. 2016) ……………….....17-794 Trout v. Bucher, 205 So. 3d 876 (Fla. 4th Dist. Ct. App. 2016) …………………..17-789 Village of Key Biscayne v. The Department of Environmental Protection, 206 So. 3d 788 (Fla. 3d Dist. Ct. App. 2016) ……………………17-770 Williams v. City of Jacksonville, 191 So. 3d 925 (Fla. 1st Dist. Ct. App. 2016) ……………………17-761 Wright v. City of Miami Gardens, 200 So. 3d 765 (Fla. 2016) ……………...………………………….17-719 Wright v. City of Saint Petersburg, Florida, 833 F.3d 1291 (11th Cir. 2016) ………………...... ……………….17-714
CONSTITUTIONAL LAW
Constitutional Law: Civil Rights
Cunningham v. School Board of Lake County, No. 5:15-cv-480-Oc-30PRL, 2016 WL 1755612 (M.D. Fla. May 3, 2016)
In order to survive a motion to dismiss, a municipal liability claim under 42 U.S.C. § 1983 must allege sufficient facts to infer that the municipality in question maintained an unlawful policy, custom, or practice. Merely asserting the legal conclusion that a municipality maintained an unlawful policy is insufficient to state a claim under the statute.
FACTS AND PROCEDURAL HISTORY David Cunningham worked for Lake County Public Schools as principal of Eustis Middle School. On July 1, 2014, the School Board of Lake County (the School Board) granted Cunningham a one-year renewal of his employment contract. The contract stated that Cunningham would work as principal in a school chosen by the School Board. It further stated that the School Board could transfer Cunningham to a position in another school within the district, as long as his salary was not altered. Allegedly, Cunningham was never counseled or disciplined in his role as principal. Notwithstanding, without any explanation, School Board Superintendent Moxley transferred Cunningham to another Lake County school to fill the position of social studies teacher merely one month after the renewal of Cunningham’s employment contract. Cunningham claimed that this transfer was a demotion carried out in retaliation for comments Cunningham made about academic assessments, district performance, and budgetary matters at a School Board meeting days earlier. The School Board upheld the transfer, and Cunningham filed a complaint with the Equal Employment Opportunity Commission, receiving a right-to-sue notice. Subsequently, Cunningham filed suit in the Middle District of Florida, claiming that the School Board and Moxley violated his constitutional rights and were liable under Section 1983. The School Board and Moxley 706 Stetson Law Review [Vol. 46 moved to dismiss every count in Cunningham’s amended complaint on the basis that Cunningham did not allege sufficient facts to state any of his proffered claims.
ANALYSIS In addition to analyzing retaliation, disparate treatment, due process, and breach of contract issues, the Middle District determined whether Cunningham alleged sufficient facts to state a valid claim under Section 1983. Section 1983 creates liability for a municipality that deprives citizens of rights under the color of law. However, a municipality is not liable under the statute for the actions of its officers. Rather, a municipality is only liable if it maintains an unlawful policy, custom, or practice. More specifically, a municipality may be liable for (1) official policies that it enacts; (2) standard operating procedures that a final policymaker agrees to; or (3) the ratification of an unconstitutional decision by a final policymaker. To state a valid municipal liability claim, a plaintiff must allege sufficient facts to show that such claim is plausible. Mere conclusory legal allegations are not sufficient to state a claim. To illustrate this point, the Middle District detailed two cases: Hoefling v. City of Miami, 811 F.3d 1271 (11th Cir. 2016) and Weiland v. Palm Beach County Sheriff’s Office, 792 F.3d 1313 (11th Cir. 2015). In Hoefling, the plaintiff brought a Section 1983 action against the City of Miami for unlawfully seizing and destroying his boat. In his complaint, the plaintiff alleged that (1) a friend told the plaintiff that the police were seizing boats; (2) local mariners told the plaintiff that their boats had been seized; and (3) the city had a program whereby it seized and destroyed unattractive boats. The court ruled that these factual allegations were sufficient to permit a reasonable inference that the municipality maintained an unlawful policy, custom, or practice of seizing and destroying boats. In Weiland, the plaintiff brought a Section 1983 action against a sheriff’s office for the use of excessive force by its officers. The plaintiff alleged that the sheriff’s office had a policy of inadequate training and covering up misconduct. However, the complaint did not specifically allege any facts evincing such a policy, such as prior occurrences of excessive force by officers or cover-ups. Accordingly, the Eleventh Circuit ruled that the allegation of an unlawful policy 2017] Recent Developments 707 was no more than a naked assertion and affirmed the dismissal of the Section 1983 claim. Turning to the subject case, the Middle District reasoned that Cunningham’s complaint was more analogous to the complaint in Weiland than the complaint in Hoefling. Cunningham’s complaint merely stated that the alleged illegal activity arose out of a policy or custom, was condoned and ratified by the School Board, and was ratified by final decision makers. The court explained, “[w]hile this allegation is a virtual parroting of the legal standard, it provides no factual basis from which the [c]ourt can plausibly infer that the standard, under any theory, has been met.” Cunningham, 2016 WL 1755612, at *6. Accordingly, the Middle District held that Cunningham’s claim of municipal liability was a conclusory allegation and dismissed the claim without prejudice.
SIGNIFICANCE Cunningham emphasizes the importance of alleging specific facts that demonstrate an unlawful policy, custom, or practice when pleading a municipal liability claim under Section 1983. Cunningham also illustrates a municipal liability claim that merely states the bare legal conclusion that a municipality has maintained an unlawful policy may be dismissed.
RESEARCH REFERENCE 15 Am. Jur. 2d Civil Rights § 88 (WestlawNext through Sept. 2016).
Joseph Ruppel
Constitutional Law: Civil Rights
Hoefling v. City of Miami, 811 F.3d 1271 (11th Cir. 2016)
A plaintiff need not identify a final government policymaker by name to sufficiently state a claim for municipal liability under 42 U.S.C. § 1983.
FACTS AND PROCEDURAL HISTORY James Hoefling, Jr. lived on his sailboat off the coast of Florida for a number of years. In May 2010, marine patrol officers for the 708 Stetson Law Review [Vol. 46
City of Miami (the City) approached the boat and told Hoefling that his boat could be derelict; however, this assessment was incorrect because the boat was not in a substantially dismantled condition. In fact, the boat was seaworthy. The officers told Hoefling to obtain a marine sanitary device and a better anchor light. In addition, the officers gave Hoefling a code enforcement notice with none of the violation boxes checked off. Hoefling obtained the equipment that the officers had insisted he purchase and continued to live on the boat for the following three months without any notice from the City that his boat was not in compliance. In August 2010, while Hoefling was away on a short trip, he learned from a friend that the police had seized his boat. The officers destroyed his boat and everything inside it as part of the City’s “cleanup” program—a systematic effort to seize and destroy unattractive boats. Hoefling sued the City and multiple officers individually. He then filed a second amended complaint, alleging multiple constitutional violations pursuant to 42 U.S.C. § 1983, which creates liability for actors depriving citizens of rights under the color of law. The Southern District granted the defendants’ motion to dismiss for failure to state a claim, noting that Hoefling did not identify a final policymaker acting for the City. Hoefling appealed.
ANALYSIS In addition to other issues, including judicial estoppel and whether Hoefling sufficiently pled his due process and Fourth Amendment claims, the Eleventh Circuit analyzed whether Hoefling had sufficiently pled a Section 1983 municipal liability claim. Under Section 1983, a municipality is generally not vicariously liable for constitutional violations that its officers commit and is only responsible for acts that the municipality orders or sanctions. However, there are various ways that municipal liability may be established under the statute. For example, a municipality may be liable for policies created by its legislative body, standard operating procedures, or the ratification of unconstitutional actions. In addressing the Southern District’s concern that Hoefling did not identify a final policymaker responsible for the acts alleged in his complaint, the Eleventh Circuit noted that courts have spoken of satisfying the final policymaker requirement in evidentiary rather than pleading terms. The court explained, 2017] Recent Developments 709
“Although Mr. Hoefling may ultimately have to identify . . . a single final policymaker in order to survive summary judgment or prevail at trial . . . we do not think that he had to name that person in his complaint to survive a Rule 12(b)(6) motion.” Hoefling, 811 F.3d at 1280. Instead, Hoefling merely had to allege a City policy, practice, or custom that caused the deprivation of his rights. According to the court, Hoefling did so by stating that his boat had been destroyed and by alleging that (1) his friend told him that the police were seizing boats; (2) other vessels had been unlawfully destroyed; (3) the City referred to the systematic effort to destroy unattractive boats as a “clean up” program; and (4) based on the foregoing, the City had a policy, custom, or practice that violated state laws regarding derelict vessels and the due process clause. Hoefling’s allegations sufficiently stated a Section 1983 claim because they allowed for a reasonable inference of City liability— despite the fact that Hoefling did not identify a specific final policymaker as responsible for the behavior.
SIGNIFICANCE Hoefling clarifies that, while a plaintiff suing under Section 1983 may have to establish and identify a final policymaker at the summary judgment stage as responsible for unlawful activity, such plaintiff need not identify the policymaker by name in the complaint to survive a motion to dismiss.
RESEARCH REFERENCES 15 Am. Jur. 2d Civil Rights § 63 (WestlawNext through Sept. 2016). 15 Am. Jur. 2d Civil Rights § 64 (WestlawNext through Sept. 2016).
Joseph Ruppel
Constitutional Law: First Amendment
Heffernan v. City of Paterson, 136 S. Ct. 1412 (2016)
The First Amendment protects government employees from dismissal or demotion based on a constitutionally protected 710 Stetson Law Review [Vol. 46 political activity. Even when the government official’s action is based on a factual mistake, the dismissal or demotion of an employee based on their alleged engagement in a protected political activity deprives the employee of rights secured by the U.S. Constitution.
FACTS AND PROCEDURAL HISTORY In 2005, Heffernan worked as a police officer in Paterson, New Jersey. At that time, the incumbent mayor, Jose Torres, who was running for reelection against Lawrence Spagnola, had appointed Heffernan’s direct supervisor, along with the chief of police. Heffernan, at the request of his bedridden mother, went to the Spagnola campaign headquarters to pick up a replacement campaign sign for her because her original sign had been stolen. The next day, Heffernan’s supervisors demoted him from detective to patrol officer because of what they believed to be his involvement in Spagnola’s campaign. Heffernan was not involved in the campaign, but was instead just helping his mother. Heffernan filed a lawsuit in federal court, under 42 U.S.C. § 1983, alleging that the demotion deprived him of a constitutionally protected right. Because Heffernan was not actually engaged in any First Amendment conduct, the District Court held for the City of Paterson. The Court of Appeals for the Third Circuit affirmed this decision and held that a free speech retaliation claim is actionable only when the action at issue is caused by an actual exercise of constitutional rights, rather than a factual mistake about the exercise of those constitutional rights. The Supreme Court granted certiorari.
ANALYSIS The Court began by addressing the protections offered by the First Amendment for government employees. The Court explained that the First Amendment generally prohibits government officials from dismissing or demoting an employee because of their engagement in constitutionally protected political activity. In this case, however, Heffernan was fired because of perceived, rather than actual, political activity. The statute in question, 42 U.S.C. § 1983, authorizes a lawsuit by a person deprived of a constitutionally protected right. The Court questioned whether this right is based on the employer’s motive or the employee’s actual activity. While some cases include language suggesting the 2017] Recent Developments 711 right is related to the employee’s actual activity, precedent does not touch on the type of factual mistake at issue in this case. To find an answer, the Court looked to Waters v. Churchill, 511 U.S. 661 (1994). In Waters, the Court held that it was the employer’s motive, and the facts as the employer understood them to be that mattered. As a result, the Court concluded here, as it did in Waters, that it is the employer’s reason for demoting or dismissing an employee that matters. Furthermore, the Court held that when an employee has been demoted or dismissed because of their participation in political activities protected by the First Amendment, “the employee is entitled to challenge that unlawful action under the First Amendment and 42 U.S.C. § 1983—even if, as here, the employer makes a factual mistake about the employee’s behavior.” Heffernan, 135 S. Ct. at 1418. While Heffernan was not actually engaged in protected speech, his demotion based on the employer’s perception of his actions entitled him to relief. The Court reasoned that the factual mistake of the employer does not diminish the risk of the constitutional harm, which would emerge from discouraging employees from engaging in protected political activity. Justices Thomas and Alito contended in their dissent, however, that because Heffernan was not engaged in First Amendment speech, the demotion warranted no action under 42 U.S.C. § 1983. While Heffernan’s demotion may have been misguided or wrong, it did not infringe on his right to speak and assemble, because it was conceded that he was not exercising that right.
SIGNIFICANCE Heffernan establishes that political speech is protected under the First Amendment, and that it cannot be cause for dismissal or demotion of a government employee. Furthermore, because of the significance of the rights guaranteed under the First Amendment, the motivation of the employer should be given more weight when considering a challenge to an unlawful action because of the constitutional implications that would otherwise emerge from a ruling to the contrary.
RESEARCH REFERENCE Martin J. McMahon, Annotation, First Amendment Protection for Law Enforcement Employees Subjected to 712 Stetson Law Review [Vol. 46
Discharge, Transfer, or Discipline Because of Speech, 109 A.L.R. Fed. 9 (1992).
Logan Manderscheid
Constitutional Law: First Amendment
Homeless Helping Homeless, Inc. v. City of Tampa, No. 8:15-cv-1219-T-23AAS, 2016 WL 4162882 (M.D. Fla. Aug. 5, 2016)
A municipal regulation that restricts free speech in a public forum is subject to a strict scrutiny standard if the content of the speech is regulated, regardless of any neutral motive, justification, or opinion the city may have regarding the protected speech. Any content-based regulation will also have a presumption of unconstitutionality.
FACTS AND PROCEDURAL HISTORY Plaintiff, Homeless Helping Homeless, Inc., (Plaintiff) is a charity located in Tampa that provides housing, food, and other services to the homeless. As a part of its operations, the Plaintiff asked for donations from pedestrians on the sidewalks of downtown Tampa and Ybor City, a historic district adjacent to downtown Tampa. In July 2013, the City of Tampa (the City) passed Ordinance 2013-95, which amended the Tampa Municipal Code to include Section 14-46(b). Section 14-46(b) made it illegal to ask for donations in certain locations, including the downtown Tampa/Ybor City area where the Plaintiff solicited money. The Plaintiff challenged Section 14-46(b) in the U.S. District Court for the Middle District of Florida by filing for an injunction to prevent the City from enforcing the new ordinance and requesting declaratory relief that Ordinance 2013-95 violates its freedom of speech as protected by the First Amendment of the U.S. Constitution and Article I of the Florida Constitution.
ANALYSIS The Middle District of Florida began its analysis by citing to precedent establishing that soliciting money is considered protected speech under the First Amendment of the U.S. Constitution, which applies to states and local governments 2017] Recent Developments 713 through the Fourteenth Amendment. The court also noted that downtown Tampa and Ybor City are public forums, which are given increased protection under the First Amendment. This extra protection meant that Section 14-46(b) was subject to a strict scrutiny standard instead of an intermediate scrutiny standard. To satisfy the strict scrutiny standard, the government had to prove it had a compelling interest to regulate the speech, and the regulation was the least restrictive means of doing so. Further, the court noted that any law regulating the content of the protected speech is presumed to be unconstitutional. Relying on U.S. Supreme Court precedent, the district court stated that a regulation of speech is content-based if the speaker is penalized based on the topic, idea, or message communicated in the speech, and also if authorities are required to examine the content of the of the speaker’s message to determine if a violation of the ordinance occurred. In this case, the court held that Section 14-46(b) depended solely on the content of the message being conveyed by the speaker. The court illustrated that a person could pass out brochures or attempt to gain signatures for a petition without penalty under the new laws, but if the person asks for money, then he or she is criminally penalized. Therefore, the City’s new law is presumptively unconstitutional because “Section 14- 46(b) punishes speech based not at all on the place, and manner of the speech but based decidedly and exclusively on the content of the speech, a fact that subjects Section 14-46(b) to strict scrutiny.” Homeless Helping Homeless, 2016 WL 4162882, at *4. The City argued that some United States Circuit Courts of Appeals have held that a regulation can be content-neutral—even if the regulation applies to the content of the speech—if the government can provide a justification without referencing the content of the protected speech. However, the court disagreed and ruled content-based regulations are held to a strict scrutiny standard notwithstanding any other motive or lack of animosity the City has to the regulated speech. Finally, the court held that the City had to prove it had a compelling interest and chose to regulate using the least restrictive means possible to meet the strict scrutiny standard. The court highlighted that the City admitted in its court filings that it did not have a compelling interest and that the new ordinance was not the least restrictive way of effectuating any compelling interest. As a result, the Middle District of Florida declared Section 14-46(b) 714 Stetson Law Review [Vol. 46 unconstitutional and permanently enjoined the City from enforcing Section 14-46(b).
SIGNIFICANCE Homeless Helping Homeless clarifies that a regulation distinguishing between the solicitation of money and other forms of solicitation (such as for petition signatures) constitutes a content-based regulation, even if the underlying purpose or message of the soliciting party is not regulated. The case reaffirms that content-based regulations of speech in a public forum will be subject to a strict scrutiny standard and will be presumed to be unconstitutional unless the government can show a compelling governmental interest and the least restrictive means were used in furthering that interest.
RESEARCH REFERENCE 10A Fla. Jur. 2d Constitutional Law § 291 (WestlawNext through Oct. 2016).
Collin Mixon
Constitutional Law: First Amendment
Wright v. City of Saint Petersburg, Florida, 833 F.3d 1291 (11th Cir. 2016)
An individual may be banned from public property pursuant to a municipal ordinance so long as the reason for the ban is not to limit a First Amendment-protected activity.
FACTS AND PROCEDURAL HISTORY Bruce Wright was a minister who also ran an addiction recovery program. Wright was particularly concerned with the homeless and others of lower socio-economic status. To reach a substantial portion of St. Petersburg’s homeless population, Wright regularly conducted outreach in Williams Park in downtown St. Petersburg. On March 27, 2013, two St. Petersburg Police Officers were attempting to arrest a man with an outstanding warrant. Wright intervened and told the police to stop bothering the man. The police officers warned Wright not to interfere. After Wright did not 2017] Recent Developments 715 comply with the officers’ instructions to stop intervening, he was handcuffed and arrested. Because Wright braced his arms and did not allow the officers to easily handcuff him, he was charged with resisting arrest. Wright pleaded guilty to resisting arrest and the court withheld adjudication. The City of St. Petersburg (the City) has an ordinance that allows the city to issue trespass warnings to individuals to prevent them from entering certain public spaces. Because Wright had resisted arrest in a public park, the officer issued Wright a trespass warning pursuant to City Ordinance § 20-30, which banned him from the park for one year. Wright could receive an exemption to enter the park from the City if he was going to engage in First Amendment-protected activities. However, the City had discretion on whether to grant the exemption. Wright requested and was granted an exemption to enter the park for an event on May 1, 2013. Because the general prohibition from entering the park affected Wright’s ability to provide outreach, he appealed the trespass warning to the City. The City denied the appeal, and the state’s Sixth Judicial Circuit upheld the decision. Wright then filed suit in federal court and alleged a violation under 42 U.S.C. § 1983. The district court granted summary judgment in favor of the city, and Wright appealed to the United States Court of Appeals for the Eleventh Circuit.
ANALYSIS The Eleventh Circuit began by analyzing whether Wright’s trespass warning was a First Amendment violation as-applied because it limited Wright’s ability exercise his First Amendment rights. For First Amendment scrutiny to be applied, the penalty’s purpose must be to prevent a protected activity or have the effect of singling out those engaged in a protected activity. The court found that Wright’s First Amendment rights were not violated. “Simply because the trespass warning incidentally burdened Wright’s First Amendment activities does not mean that [the ordinance] is subject to First Amendment scrutiny” because all civil and criminal remedies place some potential burden on activities protected by the First Amendment and no evidence exists that the ordinance inevitably singled out Wright or others taking part in expressive activities. Wright, 833 F.3d at 1296. The court 716 Stetson Law Review [Vol. 46 also found no evidence that Wright’s arrest was pretext to prevent him from exercising his First Amendment rights. Next, the court looked at whether the ordinance was a prior restraint on Wright’s First Amendment speech. Prior restraint cases typically involve licensing or permitting that prevents speech before it can occur. The court found that this case was not like permitting cases because Wright had no right to be in the park. Further, because Wright could request an exemption from the ban, the ordinance actually granted him more ability to exercise his rights to free speech, not less. Wright could show no selective enforcement and was granted the only exemption he requested. Because Wright failed to show any First Amendment violations, the court affirmed summary judgment for the City.
SIGNIFICANCE Wright reinforces that cities may still limit people from public property for violations of law not related to protected rights, such as First Amendment rights. This case was not the first time this ordinance’s application at Williams Park was challenged. St. Petersburg added a municipal review process after the Eleventh Circuit determined in Catron v. City of St. Petersburg, 658 F.3d 1260 (11th Cir. 2011) that lack of municipal review for trespass warnings was a due process violation.
RESEARCH REFERENCES 10A Fla. Jur. 2d Constitutional Law § 229 (WestlawNext through Nov. 2016). 38 Fla. Jur. 2d Parks, Etc. § 2 (WestlawNext through Nov. 2016).
Hoyt L. Prindle III
Constitutional Law: Search and Seizure
Chmielewski v. City of St. Pete Beach, No. 8:13-cv-3170-T-27MAP, 2016 WL 761032 (M.D. Fla. Feb. 26, 2016)
When a city encourages the public to freely travel across private property, that encouragement can qualify as an unlawful seizure under the Fourth Amendment and as an unlawful taking 2017] Recent Developments 717 under Florida law. As a result, the affected property owner is entitled to compensatory damages.
FACTS AND PROCEDURAL HISTORY In 1972, Chester and Katherine Chmielewski (the Plaintiffs) bought a residence in the City of St. Pete Beach (the City). The residence was located next to beachfront property known as “Block M.” Later, the Plaintiffs acquired title to land directly behind their residence that extended across Block M to the beach. In 2006, the Plaintiffs brought an action to quiet title against the City for the Block M strip and the beach property that Block M led to. The parties settled the quiet title action, and the City agreed that the public could not use Block M. The Plaintiffs later filed suit claiming that the City unreasonably seized the Plaintiffs’ property in violation of their Fourth Amendment rights by encouraging the general public to use Block M. The Plaintiffs also alleged an unlawful taking of their property in violation of Florida law. After trial, the jury found in favor of the Plaintiffs on both counts, returning an award of $725,000 for the Fourth Amendment claim and an award of $1,489,700 for the Florida law claim. The City renewed its motion for judgment as a matter of law for both claims.
ANALYSIS The Middle District began its analysis with the City’s motion regarding the Fourth Amendment claim. First, the court observed that, in ruling on a motion for judgment as a matter of law, its review is limited to whether sufficient evidence supported the jury’s verdict that the City meaningfully interfered with the Plaintiffs’ interest in their property. The court looked at evidence that showed that the City cleared and removed the Plaintiffs’ chairs from the sidewalk so that the public could easily travel through the Plaintiffs’ property. There was also evidence that the City allowed weddings and public events to be held on the Plaintiffs’ property. This evidence was enough for a reasonable jury to find “that the City did more than adopt a passive attitude toward [the public’s] conduct.” Chmielewski, 2016 WL 761032, at *3. Therefore, the court denied the City’s motion regarding the Fourth Amendment claim. Next, the court analyzed the City’s motion for judgment as a matter of law regarding the claim of unlawful taking under Florida 718 Stetson Law Review [Vol. 46 law. The court noted that a taking is present when the government gives individuals the right to continuously pass through a person’s property. The court referred to evidence showing that the City Manager publicly stated that the patrons of a nearby center could use the Plaintiffs’ property. Additionally, one of the Plaintiffs testified that the City published maps showing public beach access over their property. Therefore, the court found sufficient evidence to support the jury’s verdict that the City’s actions resulted in an unlawful taking of the Plaintiffs’ property and denied the City’s motion.
SIGNIFICANCE Chmielewski reinforces the rule that individuals’ property rights are protected from governmental takings by the Fourth Amendment and Florida law. This case emphasizes the need for the government to respect private property rights even if it conflicts with the government’s public policy interest in promoting economic activity, such as tourism. To avoid a constitutional or state law violation, government bodies must not encourage the public to travel through private property.
RESEARCH REFERENCES 10A Fla. Jur. 2d Constitutional Law § 260 (WestlawNext through Aug. 2016). 21 Fla. Jur. 2d Eminent Domain § 227 (WestlawNext through Aug. 2016).
Diego Pestana 2017] Recent Developments 719
ELECTION & VOTING RIGHTS
Election & Voting Rights: Constitutionality of Impediments
Wright v. City of Miami Gardens, 200 So. 3d 765 (Fla. 2016)
The Legislature may not pass statutes that impede those seeking to run for office, unless those impediments are necessary and have a rational basis.
FACTS AND PROCEDURAL HISTORY Florida law outlines the compliance requirements for candidates seeking to run for elected office. Section 99.061(7)(a), Florida Statutes, provides that candidates for office must submit a filing fee from their campaign account to the appropriate filing officer. The filing officer then performs the ministerial duty of checking to see whether the general requirements have been complied with. The filing officer is not allowed to assess the content of the application. If for any reason the bank returns the candidate’s check, the filing officer must alert the candidate to the problem. The candidate then must pay the fee with a cashier’s check using campaign funds by the end of the qualifying period. In Florida, the qualifying period is only four days long. If the candidate does not submit the check before the end of the qualifying period, he or she is not eligible to be on the ballot—with no exceptions. James Barry Wright was a candidate for mayor of the City of Miami Gardens (the City). Wright properly submitted all requisite documents and a check from his campaign account at Wells Fargo to the city clerk. Due to an error outside Wright’s control, Wells Fargo returned the check because the bank was unable to locate his account. Wright received an email notifying him of this problem two weeks after the qualifying period had ended. Because the period ended, the city clerk told Wright that he was disqualified, and there was no way for him to rectify the issue. Wright filed suit against the City and the Miami-Dade County Supervisor of Elections for declaratory and mandamus relief. The trial court denied Wright’s motion, stating the statute left no discretionary authority for the clerk to allow the filing fee to be 720 Stetson Law Review [Vol. 46 submitted after the qualifying period ended. The Third District Court of Appeal affirmed the decision. Wright appealed to the Florida Supreme Court.
ANALYSIS The Florida Supreme Court began by undertaking a statutory analysis of whether Section 99.061(7)(a), Florida Statutes, gave any discretionary authority to the clerk to allow Wright to submit his fee after the end of the qualifying period. When a statute is unambiguous, the plain meaning must apply and there is no need to apply statutory interpretation principles. Here, the court determined there was no ambiguity in the language of Section 99.061(7)(a) because it clearly states that “[f]ailure to pay the fee as provided in this subparagraph shall disqualify the candidate.” City of Miami Gardens, 200 So. 3d at 768 (citing Fla. Stat. § 99.061(7)(a)). Although the result is harsh, because the wording is clear and unambiguous, the court assumes that the Legislature intended to word the statute in the way that it did. Therefore, the court affirmed the decision under statutory interpretation principles. Next, the court conducted a constitutional analysis to determine if Section 99.061(7)(a) placed an unreasonable restraint on Wright’s ability to run for public office. When assessing whether a restraint is reasonable, the court balances the rights of the individual running for office against whether the restriction is in the public interest. Here, the court ruled Section 99.061(7)(a) was arbitrary and lacking any compelling reason that benefitted the public interest. In criticizing the decisions of the lower courts, the Florida Supreme Court stated: “This bright line, by turning on luck rather than conduct, is irrational and violates Wright’s constitutional right to run for public office. There is no relief valve in circumstances like these.” City of Miami Gardens, 2016 WL 4945053, at *11. The court severed the section of the statute in question because the statute created an unconstitutional restraint on Wright’s ability to run for office. This returned the statute to a previous version, which would allow candidates forty-eight hours to correct an error after notification. Further, the court ordered Wright’s name be placed on the November ballot. The court was not unified in this decision, with Justice Canady filing a concurrence in judgment and Justice Polston filing a dissent. Justice Canady agreed with the court’s outcome, but 2017] Recent Developments 721 asserted that in fact the statute should have been struck down on statutory interpretation grounds because the sentence in question only dealt with checks returned before the qualifying period ended. Canady also argued that Wright did not properly assert a constitutional challenge, so the Court should not have considered one. Polston conversely argued that the legislature’s desire for candidates to pay their filing fees on time was enough of a rational basis to uphold this statute.
SIGNIFICANCE City of Miami Gardens affirms that, while the Legislature will have broad discretion to set the standards for candidates running for office, restrictions on the candidates must at least have some compelling public interest. As the court noted in its opinion, a decision upholding the statutory language in question could invite political shenanigans and other questionable dealings in an attempt to get candidates disqualified from the ballot who then would have no recourse to overturn the disqualification. Additionally, while there is a dispute between the majority and Justice Canady as to whether Wright properly asserted a constitutional issue, the decision reaffirms that a facially applied constitutional challenge may be raised at any time, regardless of whether it was raised below.
RESEARCH REFERENCES 10 Fla. Jur. 2d Constitutional Law § 97 (WestlawNext through Aug. 2016). 48A Fla. Jur. 2d Statutes §§ 108-196 (WestlawNext through Aug. 2016). 21 Fla. Jur. 2d Elections § 81 (WestlawNext through Aug. 2016).
Hoyt L. Prindle III
Elections & Voting Rights: Term Limits
Levy v. Woods, 195 So. 3d 1161 (Fla. 4th Dist. Ct. App. 2016)
When the language of a city resolution that sets a two- consecutive-term limit for council members is clear in that it 722 Stetson Law Review [Vol. 46 counts all previous terms, a council member cannot avoid the limitation by arguing that terms fulfilled before the resolution was passed do not count toward that limit.
FACTS AND PROCEDURAL HISTORY Appellee, David Levy (Levy), was re-elected to serve on the Palm Beach Gardens City Council (the City Council) beginning in March 2016. Levy served on the City Council previously starting in 2004 through March 2010. After resigning to pursue a different elected position, Levy returned to the City Council in March 2013. Levy ran for, and subsequently won, re-election to the City Council in March 2016. In 2014, during Levy’s fourth term on the City Council, citizens of Palm Beach Gardens passed Resolution 48.2014 (the New Resolution), which limited the number of consecutive terms a council member can serve to two full terms. Pursuant to the New Resolution, any term served on the City Council prior to the date that the New Resolution came into effect counted toward the two- term limit. After Levy won in March 2016, Appellants Carl Woods (Woods) and Sid Dinerstein (Dinerstein) challenged Levy’s re- election in court through Section 102.168(3)(b), Florida Statutes, which allows the challenging of election results on the grounds that the winning candidate was ineligible for the election. They also sought declaratory relief through Section 86.011, Florida Statutes. Woods and Dinerstein argued that Levy should not have been eligible for re-election because, under the New Resolution, Levy was limited to two consecutive terms on the City Council and Levy’s four prior consecutive terms counted toward the two-term limit. Levy responded by arguing that the New Resolution required only the most recent term served on the City Council to count toward the two-term limit. The trial court ruled in favor of Levy, holding that the language of the New Resolution required only the term the councilmember was serving when the New Resolution was passed to be applied toward the two-term limit, making Levy eligible for re-election in 2016. Woods appealed the trial court’s ruling to the Fourth District. 2017] Recent Developments 723
ANALYSIS The Fourth District began its analysis by noting that municipal ordinances are interpreted using the same rules used to interpret state statutes. This means the court starts by analyzing the plain meaning of the statute. When the plain meaning is clear, the court must give the statute or ordinance that meaning. In this case, the court ruled the plain language of the New Resolution was clear in stating that all prior terms served—not just the term being served when the New Resolution was passed— counted against the two-term limit. The court held that “[e]ach of Levy’s four prior terms constitute[d] ‘a term of office which commenced prior to the effective date of any term limitation.’” Levy, 195 So. 3d at 1163 (quoting City of Palm Beach Gardens, Resolution No. 48-2014 (Nov. 4, 2014)). Because all of Levy’s terms began before the date the New Resolution went into effect, Levy was not eligible for the City Council in 2016. Therefore, the Fourth District held that Levy was ineligible for the March 2016 City Council election and remanded the case to the lower court for further proceedings.
SIGNIFICANCE Levy clarifies that where a city passes a resolution that limits the number of consecutive terms a city council member can serve, the specific language adopted will determine the circumstances under which a prior term of office will count toward the new limits. In the case of Palm Beach Gardens’ ordinance, a council member’s terms fulfilled before the resolution went into effect count toward the resolution’s two-term limit (even though they were not consecutive with the term at issue) because the resolution’s language makes it clear that all prior terms served count against the limit.
RESEARCH REFERENCE 21 Fla. Jur. 2d Elections § 196 (WestlawNext through Nov. 2016).
Collin Mixon 724 Stetson Law Review [Vol. 46 2017] Recent Developments 725
FINANCE & TAXATION
Finance & Taxation: Ad Valorem Exemptions
City of Fort Pierce v. Treasure Coast Marina, LC, 195 So. 3d 1141 (Fla. 4th Dist. Ct. App. 2016)
Municipally owned and operated properties that benefit and promote the community may receive a governmental ad valorem tax exemption, regardless of whether or not they compete with a similar private commercial business.
FACTS AND PROCEDURAL HISTORY The City of Fort Pierce (Fort Pierce) and its redevelopment agency own and operate City Marina and Fisherman’s Wharf Marina in St. Lucie County. During the years of 2011− 2013, the St. Lucie County Property Appraiser kept the marina properties as exempt from ad valorem taxes. Harbortown Marina, a private marina and a competitor of the two Fort Pierce marinas, is owned by a group of development companies including Treasure Coast Marina, LC (Treasure Coast). Treasure Coast filed a lawsuit to obtain declaratory and injunctive relief removing Fort Pierce’s ad valorem tax exemptions from its two marina properties. In its suit, Treasure Coast alleged that it was a violation of the Florida Constitution to exempt the marinas from ad valorem taxes because Fort Pierce’s marina business was a commercial enterprise, thus the property was not used solely for an exempt municipal purpose. Both parties submitted motions for summary judgment, and the trial court granted summary judgment in favor of Treasure Coast. Fort Pierce then appealed to the Fourth District Court of Appeal. After providing an opinion, the Fourth District granted a motion for rehearing filed by Fort Pierce.
ANALYSIS The Fourth District began by analyzing whether the trial court was correct in determining that Fla. Dep’t of Revenue v. City of Gainesville, 918 So. 2d 250 (Fla. 2005) was dispositive in determining the outcome in this case. In Gainesville, the Florida Supreme Court assessed whether properties could obtain ad valorem tax relief on the basis of a “municipal or public use.” The 726 Stetson Law Review [Vol. 46
Florida Supreme Court determined that property receiving the municipal or public use exemption must solely be used for activities that promote health and the general welfare of the city. In granting summary judgment to Treasure Coast, the trial court held that Gainesville narrowed the definition of municipal or public use and thus no earlier cases could be applied to the case at hand. However, the Fourth District disagreed. The appellate court noted that the 1968 Florida Constitution, rather than narrowing what qualifies as a municipal or public use, simply required the municipal properties using the exemption to be owned by the municipality. Accordingly, because the definition was not designed to narrow the uses, the Fourth District concluded that Gainesville did not narrow the use terminology and thus previous cases did apply in analyzing this case. Next, the Fourth District looked to court decisions prior to the Gainesville decision to assess whether or not the marinas could qualify for an ad valorem tax exemption. The court reviewed Islamorada, Vill. of Islands v. Higgs, 882 So. 2d 1009 (Fla. 3d Dist. Ct. App. 2003). In Islamorada, similar to this case, the city operated a marina that competed with other marinas in the region. The Third District in Islamorada determined municipal functions included functions that benefited the community as a whole and promoted safety and happiness, rather than just the general welfare. The court stated the marina qualified for an exemption “because it ‘is a recreational facility that is available to residents and nonresidents and is operated without the involvement of a non-governmental lessee or operator.’” Treasure Coast Marina, 195 So. 3d at 1145 (quoting Islamorada, 882 So. 2d at 1010− 11). Finally, the Fourth District illustrated how the Gainesville and Islamorada cases have been applied in conjunction with each other. The court looked to Zingale v. Crossing at Fleming Island Cmty. Dev. Dist., 960 So. 2d 20 (Fla. 1st Dist. Ct. App. 2007). In that case, the Second District found that public recreational facilities are exempt from ad valorem taxes, including facilities such as golf courses and swimming pools. Further, the Second District found that recreational type facilities should be viewed like any facility traditionally provided by a municipality, such as a city park. Accordingly, applying the synthesized case rulings, the Fourth District held that the two marinas qualified for a municipal 2017] Recent Developments 727 or public use exemption and subsequently reversed the decision of the trial court and remanded the case.
SIGNIFICANCE Treasure Coast Marina affirms that a broad classification of municipally operated businesses could qualify as “municipal or public uses” for ad valorem property tax exemption purposes.
RESEARCH REFERENCE 52 Fla. Jur. 2d Taxation §§ 1413–1415 (WestlawNext through Nov. 2016).
Hoyt L. Prindle III
Finance & Taxation: Ad Valorem Exemptions
Genesis Ministries, Inc. v. Brown, 186 So. 3d 1074 (Fla. 1st Dist. Ct. App. 2016), reh’g denied (Mar. 28, 2016)
The 60-day statute of limitations to contest tax assessments found in Section 194.171, Florida Statutes, does not apply to actions challenging tax liens. In addition, the notice of denial requirement established by Section 196.193(5) applies to the revocation of a previously granted property tax exemption. As a result, the lack of such notice will render the statute of limitations inapplicable.
FACTS AND PROCEDURAL HISTORY Genesis Ministries, Inc. (Genesis) operated an alleged Christian school and church in Santa Rosa County (the County), and received a religious exemption from ad valorem taxes from 2005 to 2012. On February 26, 2013, the property appraiser for the County claimed that Genesis was not legally entitled to receive the exemption and filed a tax lien of almost $298,000 against the property for the ad valorem taxes for 2005 to 2012, plus statutory penalties and interest. The property appraiser also revoked the property’s religious exemption for 2013. Upon Genesis’ request for an explanation, the property appraiser sent Genesis a letter in November 2013 explaining the basis for the determination and informing Genesis that it had not been entitled to the religious 728 Stetson Law Review [Vol. 46 exemption since 2004. Genesis sold the property, paid the taxes in protest, and filed suit. The property appraiser filed a motion to dismiss the complaint and argued the complaint was barred by Section 194.171(2) because it was filed more than sixty days after the tax lien was recorded—and more than sixty days after the 2013 tax rolls were certified. The trial court granted the motion to dismiss, and Genesis appealed.
ANALYSIS The First District addressed the first issue of whether or not Section 194.171(2) applied to a tax lien. The court found that the statute did not apply to actions that challenge tax liens because a tax lien is not a tax assessment and the statute only applies to actions challenging tax assessments. In addition, the statute should not be interpreted to include tax liens because of issues arising with due process, specifically notice. Tax liens do not require actual notice of the recording of the lien, so if the statute applied, a property owner would be forced to check public records routinely in order to avoid missing the sixty-day window to bring suit. The court then addressed whether the notice requirements of Section 196.193(5) applied in this case. The court held that the notice requirements apply when the action challenges the revocation of a previously granted exception. The property appraiser failed to provide proper statutory notice because the letter sent in November 2013 did not inform Genesis of its right to appeal the determination, and it was issued after both the 2013 tax rolls were certified and the deadline to petition the determination had passed. As a result, the dismissal was reversed because “[i]f a property appraiser fails to provide a notice that complies with [Section 196.193(5)], any denial of an exemption or an attempted denial of an exemption is invalid.” Genesis, 186 So. 3d at 1082 (quoting Fla. Stat. § 196.193(5)(b) (2016)).
SIGNIFICANCE Genesis establishes that the statutory time-bar set forth in Section 194.171 does not apply to previously granted exemptions. Further, the property appraiser must strictly follow statutory notice requirements provided in Section 196.193(5) when denying exemptions. 2017] Recent Developments 729
RESEARCH REFERENCE 51A Fla. Jur. 2d Taxation § 1184 (WestlawNext through Aug. 2016).
Brittnie Burns
Finance & Taxation: Ad Valorem Exemptions
Miles v. Parrish, 199 So. 3d 1046 (Fla. 4th Dist. Ct. App. 2016)
A property owner’s challenge of a tax lien is not within the purview of Section 194.171(2), Florida Statutes, and thus the tax lien challenge is not subject to the sixty-day statute of limitations.
FACTS AND PROCEDURAL HISTORY Sharon Miles and her late husband applied for and received homestead exemptions on two properties, one in Highlands County and one in Broward County, from 1986 until the death of Miles’ husband in 2010. However, Florida law only allows a family to claim one homestead exemption. On February 20, 2012, the Broward County Property Appraiser (the Property Appraiser) sent Miles a notice of intent to file a lien, and at the same time, retroactively revoked Miles’ homestead exemption on her Broward County property from 2005 through 2010. The notice gave Miles thirty days to pay the fines and penalties associated with the lien, and if she did not comply, the lien would be filed. Miles did not pay the fines and the Property Appraiser recorded a Notice of Tax Lien for Homestead Exemption and/or Limitation Exclusion in the public records. On July 30, 2012, Miles filed a complaint that challenged the Property Appraiser’s retroactive revocation of Miles’ homestead exemption, as well as the appraiser’s assessment for back taxes. However, the trial court dismissed two of Miles’ claims because she filed her complaint more than 160 days after the Property Appraiser sent her the notice—which was beyond the sixty-day deadline set by Section 194.171(2), Florida Statutes, which states that no action can be brought to contest a tax assessment after sixty days “from the date the assessment being contested is certified for collection” under Section 193.122(2), Florida Statutes. Miles appealed to the Fourth District Court of Appeals. 730 Stetson Law Review [Vol. 46
ANALYSIS The Fourth District ruled that the Property Appraiser’s notice, sent in February 2012, was not the same as a certification—which is described in Section 193.122(2). Thus, the sixty-day nonclaim period, set by Section 194.171(2), had not started running because the property appraiser had not certified the assessment. The court also addressed whether the challenge of a tax lien falls under Section 194.171(2). The Property Appraiser argued that tax liens fall under Section 194.171(2), relying on Ward v. Brown, 894 So. 2d 811 (Fla. 2004), which held that Section 194.171(2) applies broadly to challenges of tax assessments, regardless of the legal basis, to include challenges to the denial of an exemption. The court disagreed with this argument, instead agreeing with the ruling in an analogous case in the First District. Quoting the First District, the court held that, “[a] tax lien is not a tax assessment, and it is not certified for collection under section 193.122(2).” Miles, 199 So. 3d at 1049 (quoting Genesis Ministries, Inc. v. Brown, 186 So. 3d 1074, 1077 (Fla. 1st Dist. Ct. App. 2016)). The court explained that even though the sixty-day period applies broadly to challenges of tax assessments, Ward did not provide any support that Section 194.171(2) should apply to tax liens. Specifically, the court stated that allowing Section 194.171(2) to apply to actions challenging tax liens would frustrate the due process principles of giving the property owner notice and the opportunity to be heard.
SIGNIFICANCE Miles establishes that even though Section 194.171(2) applies broadly to property owners challenging tax assessments, the challenge of a tax lien is not covered. Allowing tax liens to be challenged pursuant to Section 194.171(2), the court opined, would present due process issues, specifically notice and an opportunity for the property owner to be heard. However, the court does not clarify what, if any, statute of limitations would apply.
RESEARCH REFERENCE 51A Fla. Jur. 2d Taxation § 1070 (Westlaw Next through Sept. 2016).
Collin Mixon 2017] Recent Developments 731
Finance & Taxation: Assessment Challenges
American Heritage Window Fashions, LLC v. Department of Revenue, 191 So. 3d 516 (Fla. 2d Dist. Ct. App. 2016)
A taxpayer must contest a tax assessment within the required sixty-day time period and may not attempt to protest a time-barred assessment by embedding it within a timely filed refund protest.
FACTS AND PROCEDURAL HISTORY American Heritage Window Fashions, LLC (Heritage) sells and installs plantation shutters. On March 29, 2010, after conducting an audit, the Department of Revenue (the Department) served Heritage with a notice of proposed assessment, which required Heritage to pay a sales tax deficiency of $220,330.79. The assessment notified Heritage of the sixty-day statutory time limit to challenge the assessment. Heritage never challenged the tax assessment and on May 10, 2011, the Department froze Heritage’s bank account until the assessment was paid. In April 2013, Heritage released $7,507.58 to the Department. On July 10, 2013, Heritage claimed an audit overpayment and demanded a refund of a portion of the released funds. The Department denied the request. Heritage protested the denial and claimed the 2010 assessment was an error and the shutters were not subject to a sales tax. The Department again denied the protest. Heritage filed for a review of the denial to the Division of Administrative Hearings (DOAH). The Department contested the petition and claimed that the petition challenged the 2010 tax assessment, not the denial of the refund request, and thus was time-barred. Heritage claimed that its challenge pertained only to the refund denial. The DOAH granted the Department’s motion and dismissed Heritage’s petition.
ANALYSIS The Second District first addressed whether Heritage’s petition was brought to contest a tax assessment or a refund denial. The court explained that Heritage’s explicit language evinced the true purpose for its protest when it admitted that the 2010 assessment was the most important reason for the refund protest and that the refund protest was intended “to appeal the 732 Stetson Law Review [Vol. 46
Notice of Proposed Assessment” because Heritage “mistakenly missed the assessment appeals deadlines.” American Heritage Window Fashions, 191 So. 3d at 520–21. Similarly, the court found it irrational that Heritage filed for a tax refund after paying merely three percent of the final tax assessment. Instead, the court believed that Heritage made the payment in hopes of exploiting a loophole which, if successful, would have granted Heritage a refund and absolved it from paying the remainder of the tax assessment. The court found Heritage’s illogical refund protest and language to be evidence that the petition was brought to contest the 2010 tax assessment. The court then addressed Heritage’s interpretation argument, which asked the court to narrowly interpret the sixty-day limitation encompassed within Section 72.011(2)(a), Florida Statutes. If the court did so, it would have been limited to looking only to the title of the petition and not to any evidence of its underlying purpose. Thus, so long as the petition flaunted the title “Petition to Contest Refund Denial” and was brought within sixty days, it would be presumed valid. The court rejected this argument and explained that such an interpretation would ultimately have invalidated the sixty-day limitation by allowing a taxpayer to contest a time-barred tax assessment by embedding it within a timely filed refund protest. The court then explained that the statute was written with the intent of automatically barring untimely claims and does not provide a way to waive or extend the deadline. An interpretation in Heritage’s favor would have conflicted with the Legislature’s clear intent to forbid such an extension. Therefore, the court affirmed the Department’s final order.
SIGNIFICANCE American Heritage Window Fashions closes the door on Florida taxpayers who seek to challenge time-barred sales tax assessments by masquerading such challenges as timely filed refund protests. It also illustrates that, if the court sees fit, it will look beyond the title of a petition to extrinsic evidence in an attempt to determine the actual purpose for the protest. 2017] Recent Developments 733
RESEARCH REFERENCE 51A Fla. Jur. 2d Taxation § 1069 (WestlawNext through Aug. 2016).
Robert P. Barton
Finance & Taxation: Assessment Challenges
Forest Brooke/Hillsborough, LLC v. Henriquez, 194 So. 3d 1091 (Fla. 2d Dist. Ct. App. 2016)
The language of Section 194.171(5), Florida Statutes, is clear in that it does not require a taxpayer who is challenging a tax assessment to pay taxes for the year the challenge is filed. It only requires the challenger to pay taxes starting in the year after the filing of the challenge.
FACTS AND PROCEDURAL HISTORY Plaintiff Forest Brooke/Hillsborough, LLC (Forest Brooke) owned 474 undeveloped acres of land in Hillsborough County. Forest Brooke sued the Hillsborough County Property Appraiser (the Property Appraiser), challenging the 2008 tax classification and ad valorem tax assessment of the property. Forest Brooke filed this action in 2009, but did not pay the 2009 taxes on the property. However, each subsequent year after 2009, Forest Brooke’s taxes were timely paid. The Property Appraiser filed a motion to dismiss, arguing the court lost the jurisdiction to hear the case based on Section 194.171(5), Florida Statutes. The law states that to maintain a challenge of a tax assessment, any taxes assessed in the following years “after the action is brought,” which the taxpayer admits are owed, must be paid before they become delinquent. Section 194.171(6) asserts that the court loses jurisdiction over the case when Section 194.171(5) is violated. The Property Appraiser argued the court lost jurisdiction when Forest Brooke did not pay its 2009 taxes, as the challenge related to the 2008 tax year. Conversely, Forest Brooke argued it was not required to pay taxes in 2009 because that was the year its challenge was filed. Forest Brooke further argued that the Property Appraiser’s argument ran contrary to the plain meaning of Section 194.171(5). 734 Stetson Law Review [Vol. 46
The trial court ruled in favor of the Property Appraiser and granted the motion to dismiss, holding that Forest Brooke did not timely pay its 2009 taxes, which became delinquent, and therefore, the court lost jurisdiction. Forest Brooke appealed to the Second District.
ANALYSIS The Second District first noted that courts have previously interpreted the language of Section 194.171 literally. Further, the court held that the language in the statute is clear in that it “does not require that the taxes be timely paid for the year in which the action is brought; it only requires the timely payment of taxes assessed in years after the action is brought.” Forest Brooke, 194 So. 3d at 1093. As a result, Forest Brooke did not violate Section 194.171(5), and the court retained jurisdiction over the case. The Second District noted that the trial court interpreted the statute consistently with what it believed to be the legislature’s intent. However, this was an error because courts cannot vary from the plain meaning of a statute when the language is clear, as it would infringe upon the legislature’s power. The word “after” used in Section 194.171(5) is clear, so the courts must apply the plain meaning of the term. Therefore, the Second District reversed the decision of the trial court and remanded the case for further proceedings.
SIGNIFICANCE Forest Brooke establishes that, under Section 194.171(5), a court does not lose jurisdiction if a taxpayer does not pay taxes in the same year the challenge is filed—the court only loses jurisdiction if the taxpayer does not pay taxes starting the year after the challenge.
RESEARCH REFERENCE 51A Fla. Jur. 2d Taxation § 1061 (WestlawNext through Nov. 2016).
Collin Mixon 2017] Recent Developments 735
Finance & Taxation: Equitable Ownership
Island Resorts Investments, Inc. v. Jones, 189 So. 3d 917 (Fla. 1st Dist. Ct. App. 2016)
The lessee of government-owned property will not be considered the equitable owner if perpetual renewal of the lease does not exist, no option to purchase exists, or all property rights revert to the lessor at the end of the lease term. In addition, state constitutional officers do not have standing to challenge the constitutionality of legislation that governs their duties.
FACTS AND PROCEDURAL HISTORY When the United States conveyed a parcel of land on Pensacola Beach to Escambia County (the County), the County was permitted to lease the land for public interest purposes, but could not otherwise dispose of the land. The County leased forty acres to Gary Works, as Trustee of the Pensacola Beach Land Trust, and Works subleased twelve acres of that land to Island Resorts Investments, Inc. (Island) for ninety-nine years. During this time, Island was required to pay lease fees; maintain liability, flood, windstorm, fire, and casualty insurance; pay all future ad valorem real property taxes, if any, and all other future taxes and assessments imposed on the subleased property; repair or rebuild any building or improvement in the event of damage or destruction; and pay the utilities. This land was leased for development as residential/commercial property, but was undeveloped. In 2011, after the First District decided Accardo v. Brown, 63 So. 3d 798 (Fla. 1st Dist. Ct. App. 2011), the County began assessing ad valorem taxes on Island’s property. Island filed suit in the Circuit Court for Escambia County, and summary judgment was entered in favor of the property appraiser. Island appealed.
ANALYSIS The First District first examined whether Island was considered the equitable owner of the property. If the court found Island to be the equitable owner, then Island would be responsible for paying the assessed ad valorem taxes on the property. The court noted that equitable ownership does not exist solely in leaseholds where there is a right to ultimately acquire title. 736 Stetson Law Review [Vol. 46
Equitable ownership also exists with perpetually renewable leases because “[t]he interest of a lessee under a perpetually renewable lease is not materially different from the interest of a lessee under a lease for a term of years providing the right for the lessee to obtain title for nominal consideration upon the termination of the lease.” Island, 189 So. 3d at 921. However, Island did not have a perpetually renewable lease, and it was not given the option to purchase after the term of the lease expired. In addition, the lessor of the land received all of the property rights at the expiration of the term. For these reasons, the court determined that Island was not the equitable owner. The court then addressed whether the tax appraiser had standing to raise issue with the constitutionality of the statute. The appraiser was found to lack standing because legislation that affects the duties of state constitutional officers is presumed valid, and such officials, like the property appraiser and tax collector, do not have standing to challenge such legislation. The court also determined that the public funds exception was not applicable in this case.
SIGNIFICANCE Island establishes the importance of the terms of leasehold estates in determining whether equitable ownership applies for purposes of ad valorem taxation. The designation of equitable owner can be applied to either a term of years leasehold with the option to purchase or to a perpetually renewable lease. Absent either of these, the court has grounds to find that the lessee is not the equitable owner of the property.
RESEARCH REFERENCE 51A Fla. Jur. 2d Taxation § 1204 (WestlawNext through Aug. 2016).
Brittnie Burns 2017] Recent Developments 737
Finance & Taxation: Residency-Based Exemptions
Endsley v. Broward County, 189 So. 3d 938 (Fla. 4th Dist. Ct. App. 2016)
A family unit may not qualify for more than one residency- based tax exemption, even if the property interests are separately held in each individual’s name and the properties are in different states. Further, if a property loses its homestead tax exemption status, it is revalued at market value for the year that its homestead status is reinstated.
FACTS AND PROCEDURAL HISTORY Venice Endsley (Endsley) and her husband lived together as a single family unit. They each had a separate interest in two different properties: Endsley held the interest in their Florida home and her husband held the interest in their Indiana property. Each received residency-based tax exemptions for their respective properties. In 2006, the Broward County Property Appraiser (the Appraiser) discovered the Endsleys were receiving two exemptions and removed Endsley’s exemption on the Florida residence, in accordance with Section 196.031(5), Florida Statutes, which provides that family units are only entitled to one residency-based tax exemption. After Endsley’s husband canceled his residency- based exemption on the Indiana property, Endsley’s residency- based exemption was restored. However, because the Florida property lost its homestead status between the years 2002 and 2005, the property was reassessed, and the taxes increased based on the market value for 2006. Endsley sued the Appraiser, seeking (1) to regain the homestead exemption and be refunded the taxes she paid between the years 2002 and 2005; (2) to reinstate both residency-based exemptions; and (3) to have her home revalued under the Save Our Homes scheme. The trial court found for the Appraiser on all three counts on summary judgment. Endsley appealed arguing first, Section 196.031(5) did not apply to her, as the residences were in two different states; second, that even if the provision were applicable, it was an unconstitutional limitation on the Homestead Act; and third, that the house should not have been revalued in 2006. 738 Stetson Law Review [Vol. 46
ANALYSIS The Fourth District ruled for the Appraiser on all three counts. First, the court reasoned that Section 196.031(5) applied to Endsley because it was the legislative reaction to a case that held that a single-family unit could receive two residency-based tax exemptions if the residences were in two different states. In response, the provision was enacted to prevent such a situation. The court then determined that because the plain language of the statute unambiguously limited family units to one residency-based exemption, there was no need for further interpretation. The court further elaborated that the purpose of the statute was to prevent family units from benefitting from two exemptions and that “[t]he reduction in the overall tax liability owed by the couple in the State of Indiana directly provided [Endsley] with an economic benefit, bringing her within the purview of [S]ection 196.031(5).” Endsley, 189 So. 3d at 942–43. The court then ruled that because the language in Section 196.031(5) echoed the language of the Homestead Exemption in the Florida Constitution, it was constitutional. Finally, the court held that the language of Article VII, Section 4(d)(6) of the Florida Constitution, which provided for the reassessment of Endsley’s property, was also unambiguous and the reassessment of Endsley’s property was therefore valid.
SIGNIFICANCE Endsley clarifies that the exemption in Section 196.031(5) was created to prevent individuals from benefitting from two different residency-based tax exemptions. Accordingly, a husband and wife who are a part of a family unit may not receive multiple residency- based tax exemptions on different properties, even if they are located in separate states. Further, the reevaluation of a property after it has lost its homestead status is proper under the Florida Constitution.
RESEARCH REFERENCES 51A Fla. Jur. 2d Taxation § 1228 (WestlawNext through Aug. 2016). 51A Fla. Jur. 2d Taxation § 1229 (WestlawNext through Aug. 2016).
Laura Pinkerton 2017] Recent Developments 739
LAND USE PLANNING & ZONING
Land Use Planning & Zoning: Bert Harris Act
Bair v. City of Clearwater, 196 So. 3d 577 (Fla. 2d Dist. Ct. App. 2016)
Claims under the Bert Harris Act necessarily implicate a municipality’s application of a law, regulation, or ordinance. Therefore, unless there has been a valid post-May 11, 1995 amendment that “inordinately burdens” a property owner’s use of his or her land, the time bar found in Section 70.001(12), Florida Statutes, is applicable and can cause such a claim to be dismissed on summary judgment.
FACTS AND PROCEDURAL HISTORY David and Aileen Bair wanted to make improvements to their waterfront home on Clearwater Beach. However, because the house was located in a flood zone, the Bairs were required to comply with Section 51.03 of the City of Clearwater’s Development Code, which requires homeowners who are making “substantial” improvements to their home to elevate the house so the lowest part is equal to or higher than the base flood elevation level. Substantial improvements are defined as those that exceed 50 percent of the market value of the home before modification. The Bairs submitted an application for “nonsubstantial” improvements, which included an appraisal and affidavit from an engineer attesting to the scope and cost of the work. The City of Clearwater (the City) ultimately issued the permit for nonsubstantial improvements. However, soon after construction began on the Bairs’ home, the City issued a stop-work order because the improvements involved a partial demolition of the home, which the City believed would lead to substantial improvements. The Bairs filed a lawsuit against the City to lift the stop-work order, seeking (1) relief under the Bert Harris Act (the Act); and (2) damages under an equitable estoppel theory. The City responded with a motion for summary judgment as to the Act claim, as well as a motion to dismiss—or alternatively, a motion for summary judgment—as to the equitable estoppel claim. The trial court granted both the City’s motion for summary judgment as to the Act claim and motion to dismiss as to the 740 Stetson Law Review [Vol. 46 equitable estoppel claim. The Bairs appealed to the Second District.
ANALYSIS The Second District began with a discussion of the Act. The court explained that the legislature intended the Act to provide relief or compensation for homeowners when a law, rule, or regulation had an unfair effect against real property. Under the Act—specifically Section 70.001(12)—a lawsuit cannot be brought based on “the application of any rule, regulation, or ordinance” enacted on or before May 11, 1995. However, if the rule is amended after May 11, 1995, the rule may be subject to a cause of action under the Act. The Act also includes a provision that waives state sovereign immunity for any rule that is subject to the Act; however, this waiver is narrowly tailored to causes of action under the Act. The Bairs advanced three arguments in regards to the Act. First, they argued that their claim was based on Section 70.001(2), which provides relief for real property owners when governmental action has “inordinately burdened” use of the property—which is not limited to instances where a city has applied a law, rule, regulation, or ordinance. They argued that, because of this, their claim was not barred by Section 70.001(12)’s 1995 cutoff date, which refers only to the application of rules, regulations, and ordinances. However, the Second District reasoned that the legislative intent of the Act was to protect property owners from the application of laws, regulations, and ordinances. Therefore, all valid claims under the Act necessarily implicate the application of laws, rules, regulations, and ordinances. Thus, the Bairs could not evade Section 70.001(12). The second argument the Bairs advanced was that the government relied on portions of Chapter 51 and FEMA regulations that were amended after May 11, 1995. However, the City never claimed it had authority to apply FEMA regulations, so the Bairs’ argument failed. Moreover, even if the City had such authority, the City’s actions would not fall under the Act because Section 70.001(3)(c) states that the term “governmental entity” does not include a city when it is exercising powers delegated by a federal agency. Similarly, the court ruled that the City’s use of the flood maps did not create a cause of action under the Act “because any reliance on post-1995 amended portions of [C]hapter 51 did not inordinately burden the Bairs’ property ‘apart from the law, rule, 2017] Recent Developments 741 regulation, or ordinance being amended.’” Bair, 196 So. 3d at 583 (quoting Fla. Stat. § 70.001(3)(c)). The Bairs’ final argument was that the Act was meant to exclude rules that were applied before May 11, 1995, rather than rules that were in operation before May 11, 1995. The Bairs claimed that, if the Act were interpreted to exclude only rules in operation before May 11, 1995, the purpose in passing the Act would be frustrated. The court disagreed and held that the Legislature used clear language to show it intended to exclude laws that were in effect before May 11, 1995. In all, the City met its burden of proving there was no disputed issue of material fact that Section 70.001(12) applied to bar the couple’s claim under the Act, and the Second District affirmed the lower court’s grant of summary judgment. With regard to the Bairs’ equitable estoppel claim, the court held that it was not proper to bring equitable estoppel as a cause of action; rather, the only proper use for equitable estoppel would be as a defense. Therefore, the lower court was correct to dismiss the claim.
SIGNIFICANCE Bair establishes that all Bert Harris Act claims implicate a municipality’s application of a law, regulation, or ordinance, and that—unless there has been a valid post-May 11, 1995 amendment that “inordinately burdens” a property owner’s use of his or her land—the time bar found in Section 70.001(12) is applicable and can cause such a claim to be dismissed on summary judgment.
RESEARCH REFERENCE 7 Fla. Jur. 2d Building, Zoning, and Land Controls § 197 (WestlawNext through Nov. 2016).
Collin Mixon 742 Stetson Law Review [Vol. 46
Land Use Planning & Zoning: Pleading Special Injuries
Herbits v. City of Miami, 207 So. 3d 274 (Fla. 3d Dist. Ct. App. 2016)
When challenging a governmental action for special injuries, the injuries must be unique to an individual and cannot be suffered by the public at large.
FACTS AND PROCEDURAL HISTORY The City of Miami (the City) planned to develop a site of public land on Watson Island into a marina, with hotels, retail, and office space. In 2001, the Miami City Commission passed a resolution to approve the project, which was subsequently approved by City voters. The ballot question had contained a specific description of the anticipated amenities, as well as the lease and minimum rent terms. Despite the approval by City voters, the economy and other factors resulted in the project’s halt. In 2010, the developer (Flagstone) started to build on the property, despite (as late as 2014) a ground lease not existing between the City and Flagstone. In 2004, Stephen Herbits challenged the project in a zoning dispute. He later filed public records lawsuits against the City in 2013. In September 2014, Herbits filed suit to prevent the project from being built, asserting five claims against the City, including a claim under the Miami-Dade County Citizens’ Bill of Rights. The trial court dismissed Herbits’ claims with prejudice, claiming he did not properly plead special injuries on three of his claims, that one claim was preempted by the Florida Public Records Act, and that he lacked standing to challenge the development plan because he was not sufficiently related to any of the contractual agreements as a party. Herbits appealed to the Third District.
ANALYSIS The Third District began by analyzing whether the City had violated Section 29-B of the Miami City Charter when it failed to obtain market rate rents in its proposed lease to Flagstone. To have standing to sue under Section 29-B, a plaintiff must be able to illustrate that he or she has or will suffer from “special injuries,” which are injuries that are unique to the individual and are not suffered generally by the public at large. The court found that “the City’s alleged failure to obtain a fair market rental for the property 2017] Recent Developments 743 has not been shown to affect the seven Appellants in a manner ‘different in kind,’ not merely greater in degree, than it affects other residents throughout the City.” Herbits, 207 So. 3d at 282. Further, Herbits did not establish a nexus between his alleged injuries and the alleged violation of the City Charter. As a result, the court upheld the trial court’s dismissal of Count I with prejudice. Second, the Third District looked at whether the City had violated Section 29-C of the Miami City Charter because the development deviated from what was approved by voters in November 2001. For a plaintiff to sue under Section 29-C, he or she must show a special injury, nexus, and standing. Like in Count I, the court determined that Herbits did not properly allege a special injury because the injuries would be suffered by all taxpayers, and thus, he did not have standing to sue. The alleged injuries to Herbits would come from zoning and land use changes, not from the City’s mere negotiation of a development project. In this instance, the City and Flagstone were working with a letter of intent and not binding terms, which is not enough to establish the required nexus for standing. Therefore, the court upheld the dismissal of Count II. Third, the court reviewed whether the City had violated section 29-A of the Miami City Charter by failing to provide notice in order to give the public the chance to compete for the development bid. While the court determined that a prima facie case for violating 29-A could be construed from the complaint, Herbits once again failed to establish the required special injury, standing, and nexus to sue under this section. The court determined that special injuries cannot occur merely because a city’s action was illegal, nor can it occur when a plaintiff wants to declare a zoning ordinance void (although it can be asserted to enforce a zoning ordinance). Even though Herbits may have suffered a wrong, the court determined these kinds of wrongs are corrected by citizens’ votes. Accordingly, the court upheld the dismissal of Count III. Fourth, the Third District assessed whether the City violated the Miami-Dade Citizens’ Bill of Rights Truth in Government provision by concealing information about the project, including an appraisal, from the public. The court determined that Herbits failed to establish any harm from the alleged concealment, such as harm from a legally binding lease or that the original request for 744 Stetson Law Review [Vol. 46 proposal was corrupted. Additionally, the court determined that Herbits essentially obtained relief on this issue through his ability to investigate the changes on the project and therefore the court would not need to provide him relief. Consequently, the court affirmed the trial court’s dismissal of Count IV with prejudice. Finally, the Third District looked at whether Flagstone breached its amended ground lease agreement with the City by failing to begin physical construction. Because Herbits was not a party to the agreement, the court determined he had no right to challenge the contract. Therefore, the court affirmed dismissal with prejudice on Count V.
SIGNIFICANCE Herbits affirms that citizens can only challenge governmental action when they have suffered an injury unique to them as an individual, not to taxpayers generally. Further, to establish that they will suffer an injury in the future, plaintiffs cannot point to preliminary or tentative agreements, such as a letter of intent, to illustrate such an injury.
RESEARCH REFERENCES 7 Fla. Jur. 2d Building, Zoning, and Land Controls §§ 212, 280-284 (WestlawNext through Nov. 2016). 12A Fla. Jur. 2d Counties § 89 (WestlawNext through Nov. 2016).
Hoyt L. Prindle III
Land Use Planning & Zoning: Rezoning
Blair Nurseries, Inc. v. Baker County, 199 So. 3d 534 (Fla. 1st Dist. Ct. App. 2016)
Circuit courts have the power to review zoning proceedings and, when doing so, must ensure that the proceedings comply with the authorizing statute.
FACTS AND PROCEDURAL HISTORY Blair Nurseries (Blair) owned a large tract of land in Baker County (the County). In anticipation of growth in the area, Blair subdivided the land into residential plots for what was to become 2017] Recent Developments 745 an equestrian community. Only one person bought a plot and built a residence. The rest of the land remained vacant. In 2014, Blair filed a zoning change request with the County to eliminate the subdivision plat and rezone the property for agricultural use. Section 177.101(3), Florida Statutes, requires the zoning applicant to show: (1) the plat to be removed was owned by the applicant; (2) removing the plat will not affect ownership of the owners in the subdivision; and (3) the removal of the plat will not affect convenient property access. The County’s zoning director determined that the application met the necessary requirements under the statute, and the planning staff recommended that the zoning change be approved. The Board of County Commissioners (the Board) in the County then held a public hearing on the rezoning, where the single homeowner on the platted land spoke in objection to the zoning change, claiming it would reduce the value of her property. Despite a dispute over whether there was an actual reduction in value, the Board unanimously rejected the rezoning request. Blair then requested the circuit court review its application for rezoning the property, stating that the County had no grounds for denying the application. Additionally, Blair asserted as a matter of law, that the County erred in considering the value of the singular homeowner’s property as a reason for denial. The circuit court denied relief on the application issue and did not reach the value issue, claiming it lacked the authority of judicial review because the County made a discretionary decision. Blair then requested and received a second certiorari review from the First District Court of Appeal.
ANALYSIS The First District began by analyzing whether the circuit court should have provided judicial review. Because the circuit court relied on the word “may” in determining the Board had discretionary authority not subject to judicial review, the court analyzed the “may” language in the rezoning authorization statute. The court determined that the word “may” reflects a specific grant of authority to execute the tailored mission of eliminating land plats in certain scenarios. In harshly repudiating the circuit court, the First District stated, “[t]he statute plainly does not grant unreviewable discretion . . . [and] the trial court’s 746 Stetson Law Review [Vol. 46 denial of judicial review is a miscarriage of justice, akin to a denial of due process.” Blair Nurseries, Inc., 199 So. 3d at 536–37. Next, the First District addressed what the Board and circuit court should have done in handling the case. If an applicant follows the statute, the Board must grant the rezoning request unless the application somehow violates a controlling statute. In turn, if the Board denies a rezoning request, the circuit court must uphold the decision if competent and substantial evidence shows that the application violates a controlling statute. Accordingly, the court quashed the decision of the circuit court, and because the judicial review issue was dispositive, it did not assess whether impact to a property value equates to an impact on property ownership under the statute. The dissent posited that the rezoning law was applied correctly by the Board. Unlike the majority, the dissent leaned on the Fla. Bar v. Trazenfeld, 833 So. 2d 734 (Fla. 2002) and Sanders v. City of Orlando, 997 So. 2d 1089 (Fla. 2008) cases for the proposition that “may” is in fact a term that connotes discretionary authority. Because of these facts, the Board had discretionary authority to deny the rezoning request and the dissent would not have granted certiorari to hear the case.
SIGNIFICANCE Blair Nurseries, Inc. reinforces that citizen rezoning applications must be approved by a county, so long as they are within statutory compliance. The term “may” in the governing statutes does not mean that counties have the unfettered political discretion to deny a zoning request; they can only deny a request if it does not meet all statutory requirements. The case further reaffirms that circuit courts have the authority to review county decisions on zoning applications. [As an aside: This author wonders if this case may have played out differently had it occurred in a charter county, where the county commission would have more discretionary powers of self governance.]
RESEARCH REFERENCES 7 Fla. Jur. 2d Building, Zoning, and Land Controls §§ 111– 113 (WestlawNext through Nov. 2016). 12A Fla. Jur. 2d Courts and Judges § 172 (WestlawNext through Nov. 2016). 2017] Recent Developments 747
12A Fla. Jur. 2d Counties, Etc §§ 89–91 (WestlawNext through Nov. 2016).
Hoyt L. Prindle III
Land Use Planning & Zoning: Utilities
Board of County Commissioners Indian River County v. Graham, 191 So. 3d 890 (Fla. 2016)
The Florida Public Service Commission (PSC) has jurisdiction to determine utility service areas. However, a county still retains property rights even where a PSC declaration gives a city the right and obligation to continue to service its PSC-approved territory in unincorporated areas of the county.
FACTS AND PROCEDURAL HISTORY Appellant, the Board of County Commissioners for Indian River County (the County), entered into a Franchise Agreement (Agreement) with the City of Vero Beach (the City), which allowed the City to use the County’s property to provide electric power services to unincorporated parts of the County. The Agreement defined the boundaries of the City’s electrical services within the County. With the Agreement set to expire in 2017, the County notified the City of its intention not to renew the Agreement. Before the Agreement existed, the PSC issued territorial orders that acknowledged the right and obligation of the City to provide electrical services to the same unincorporated parts of the County. The County claimed the expiring Agreement would make the PSC-approved boundaries unclear because the legal authority that the boundaries were based on would expire with the Agreement. Therefore, the County requested the PSC make a declaratory statement to clarify the County’s rights and obligations after the Agreement expired. The City opposed the County’s request and also filed a petition for a declaratory statement, alleging that the County attempted to prevent the City from serving the unincorporated parts of the County after the Agreement expired. The City asked the PSC to make two declarations: first, the expiration of the Agreement had no effect on the rights and obligations of the City to provide 748 Stetson Law Review [Vol. 46 electrical services in PSC-approved areas; second, that the City had an obligation to provide electrical services to the unincorporated parts of the County, regardless of the Agreement. The PSC denied the County’s petition, ruling that the County did not meet the statutory requirements to obtain a declaratory statement. Instead of ruling on the City’s two declaration requests, the PSC stated that the City had an obligation to provide electrical services to the unincorporated parts of the County and PSC- approved areas after the Agreement expired. The County appealed the PSC’s two orders to the Florida Supreme Court, which consolidated the cases.
ANALYSIS The court first addressed the County’s argument that the City did not have standing to seek a declaratory statement from the PSC. Section 120.565, Florida Statutes states that a person who is substantially affected by an agency’s opinion regarding whether the agency’s statute, rule, or order is applicable to that person can request the agency make a declaratory statement. Section 120.565 also requires the request specifically state the set of facts and the statute, rule, or order that is in question. Here, the court held that the City met the requirements of section 120.565 because the City’s electric utility was subject to PSC territorial orders that the County intended to treat as invalid. Further, the court rejected the County’s argument that the City did not have standing because it did not file a request to modify or resolve a separate issue under Section 366.04, Florida Statutes, which establishes the jurisdiction of the PSC. Therefore, the City had proper standing. Next, the County argued that the PSC’s declaration fell outside its authority because the PSC interpreted the Agreement, rather than its territorial orders. The County argued this was clearly erroneous, which would allow reversal of the PSC’s decision. However, the court noted that orders made by the PSC are presumed to be within its jurisdictional authority. Further, courts are deferential to statutory interpretations made by an agency. The County had to prove a departure from the law to overcome the presumption and deference given to the PSC. Accordingly, the PSC’s ruling need only be based on competent, substantial evidence to be upheld. 2017] Recent Developments 749
In this case, the court highlighted language in the PSC’s order that showed it did not interpret the Agreement. In fact, the court stated the PSC only declared that the City had a duty to provide electrical services to comply with the territorial orders. The court held that the PSC was within its powers under Section 366.04 in issuing its declaration. In its third argument, the County relied on precedent to argue the PSC’s order wrongly deprived the County of its property rights and awarded them to the City. In Florida Power Corp. v. City of Winter Park, 887 So. 2d 1237 (Fla. 2004), a city asked for a declaratory judgment to collect a franchise fee from a utility company that had stopped paying. There, the court ruled that the owner of the utility should be paid for the use of its property. However, the court distinguished Florida Power Corporation from the case at bar and held that the precedent case did not establish a rule that a local government could decide who provides utility service to an area, rather than the PSC. Further, the PSC’s order still allowed the County to collect a reasonable fee for use of its utilities. Therefore, the PSC did not deprive the County of its property rights. Finally, the County argued that the PSC’s order affected its franchise fee, which is forbidden by Section 366.13, Florida Statutes. Even though the County did not argue this before the PSC, the court rejected this argument because the PSC only required the City to comply with the territorial orders. Further, it does not prevent the County from demanding payment for the City’s use of its property.
SIGNIFICANCE Board of County Commissioners Indian River County explains that the PSC can determine which utilities service certain areas, and a determination that a city must continue to serve portions of unincorporated county does not strip the county of its property rights or violate Section 366.13’s prohibition against the PSC affecting a franchise fee.
RESEARCH REFERENCE 43 Fla. Jur. 2d Public Service Commission § 50 (WestlawNext through Nov. 2016).
Collin Mixon 750 Stetson Law Review [Vol. 46 2017] Recent Developments 751
MUNICIPAL AUTHORITY
Municipal Authority: Red Light Programs
City of Fort Lauderdale v. Dhar, 185 So. 3d 1232 (Fla. 2016)
The “red light camera violation” law, found in Section 316.0083, Florida Statutes, is unconstitutional as applied to a short-term renter of a motor vehicle photographed running a red light. The law violates equal protection in this instance because there is no rational basis for treating short-term renters differently than registered owners or lessees by depriving the renters of the opportunity to respond to a notice of violation prior to receiving the more onerous uniform traffic citation.
FACTS AND PROCEDURAL HISTORY A red light camera photographed June Dhar running a red light while she drove a vehicle rented from Dollar Rent A Car Systems, Inc. (Dollar). Dollar was sent a notice of violation, identifying the vehicle that ran the light, and in response provided an affidavit identifying Dhar as the person who had custody of the car at the time of the violation. As a result, Dhar was issued a uniform traffic citation for the infraction. Dhar filed a motion to dismiss against the City of Fort Lauderdale (the City), in the Seventeenth Judicial Circuit Court, arguing that Section 316.0083 violated equal protection as applied to short-term renters. The circuit court dismissed the violation, and the City appealed. The Fourth District affirmed the decision, and the City appealed to the Florida Supreme Court.
ANALYSIS The Florida Supreme Court began by noting that the right to drive is not a fundamental right, and therefore the statute in question, related to a driver’s duty to obey traffic control devices, only needed to pass rational basis scrutiny. The statute creates two different tiers of punishment for running a red light. First, a notice of violation is sent, and after thirty days a uniform traffic citation is sent. If the penalty is paid upon receiving the notice, the recipient pays a smaller fee and does not have an infraction on his or her driving record. However, the statute only addresses short- 752 Stetson Law Review [Vol. 46 term renters in providing that they can be issued a uniform traffic citation after being identified in an affidavit. As a result, the short- term renter does not receive a notice of violation and cannot choose to partake in the benefits that coincide. According to the Florida Supreme Court, “[n]o rational basis justifies treating short-term renters differently than registered owners and lessees where the gravamen of the violation—running a red light and being captured on camera doing so—is the same in each case.” Dhar, 185 So. 3d at 1236. Therefore, the court affirmed the decision of the Fourth District and remanded the case for further proceedings.
SIGNIFICANCE Dhar illustrates the importance of statutory language. The statute created a difference in treatment between two groups by identifying short-term renters and only providing that they receive a uniform traffic citation, without the benefit of a preliminary notice of violation. This distinction is what the courts used to strike down the statute.
RESEARCH REFERENCE 10A Fla. Jur. 2d Constitutional Law § 429 (WestlawNext through Aug. 2016).
Brittnie Burns
Municipal Authority: Red Light Program
State ex rel. City of Aventura v. Jimenez, 211 So. 3d 158 (Fla. 3d Dist. Ct. App. 2016)
Cities may delegate tasks to vendors where the vendor is only acting in a ministerial capacity and does not have unfettered discretion.
FACTS AND PROCEDURAL HISTORY Pursuant to Section 316.0083, Florida Statutes, the City of Aventura (Aventura) authorized a red light camera program that was maintained by American Traffic Solutions (ATS). Under the contract between ATS and Aventura, ATS was responsible for sorting all camera images and video into two categories: a “non- 2017] Recent Developments 753 working” database where police do not review the images and a “working” database where police review the images to determine whether or not to issue a citation. Only a police officer may issue the red light citation, affixing the officer’s badge number and signature to the ticket electronically. This is done in accordance with Aventura’s citation guidelines, which included a mix of ATS suggestions as well as policies created by the city. Once a police officer decides to issue a citation, ATS used an automated system to print and mail the citation to the violator and the Clerk of the Court. Luis Torres Jimenez made a right turn on red at an intersection with a no-turn-on-red sign displayed. Officer Jeanette Castro of the Aventura Police Department reviewed the camera images and decided to issue Jimenez a citation. Castro indicated that she analyzed the same factors in issuing this red light citation as she would if making a roadside stop. Jimenez challenged his citation and the red light camera program in court. After trial, the court overturned Jimenez’s citation itself, but upheld the process for issuing and delivering the citation. Aventura and the Florida Attorney General appealed the decision to the Third District Court of Appeal.
ANALYSIS The Third District began by analyzing whether ATS’s ability to sort images and decide which are sent to a law enforcement officer is an unconstitutional delegation of power. A city may not give a private party unchecked discretion to administer one of its core legislative functions. In its analysis, the court referenced the Fourth District’s decision that struck down Hollywood, Florida’s red light program, City of Hollywood v. Arem, 154 So. 3d 359 (Fla. 4th Dist. Ct. App. 2014), review denied, 168 So. 3d 224 (Fla. 2015). In Arem, the vendor made probable cause determinations on whether to issue a citation, and the city provided no guidelines for how the red light program was administered. Conversely, the court found here that because of the controls put into the contract and the guidelines created by Aventura, ATS’s role in the red light program was purely ministerial. As an example, the court stated that “it is hard to imagine a more ministerial act than deciding whether a traffic light in a photograph is displaying red [because] . . . either yes, the traffic light . . . is displaying red, or 754 Stetson Law Review [Vol. 46 no, the traffic light in the image is not displaying red.” Jimenez, 211 So. 3d at 166. Next, the court turned to the issue of whether the automated and electronic processes for issuing the citation were unlawful. The court found that Jimenez’s argument confused the non-delegable authority to issue the citation with the ministerial task of mailing the citation, adding that taken to an extreme, Jimenez’s view would require the officer themselves to address the envelopes and affix the postage. Once the police make the decision on whether to issue a citation, there is no language in the statute that prevents them from delegating clerical tasks. Finally, the court analyzed whether an officer can use the vendor’s software to deliver the citation to the Clerk of Court. The court found that the process for delivering the citations in the red light program was no different than the electronic process that a patrol officer would use when issuing a roadside citation. Additionally, the court determined that there was no language in the statute to bar police from using third party vendors in these instances. Accordingly, the court affirmed the rulings on the ticket issuing and delivery systems and reversed the order dismissing Jimenez’s red light citation.
SIGNIFICANCE Jimenez gives cities that want to maintain their red light camera programs some hope that the programs will remain lawful, so long as cities take the appropriate steps to ensure that the camera vendors are merely processors and are not deciding whether to issue the citations. As an aside: Florida courts have often been critical of red light camera programs in the state. In addition to the Fourth District striking down the camera program in the Arem case mentioned above, the Florida Supreme Court in City of Ft. Lauderdale v. Dhar, 185 So. 3d 1232 (Fla. 2016) declared Section 316.0083, Florida Statutes, violated due process and was unconstitutional in the way it treated rental car drivers differently from drivers who owned their vehicles. The Florida Legislature has also been critical of red light camera programs and the House voted to repeal Section 316.0083 during the 2016 session, but the Senate version of the bill died in committee. 2017] Recent Developments 755
RESEARCH REFERENCES 35 Fla. Jur. 2d Mandamus and Prohibition § 44 (WestlawNext through Nov. 2016). 12A Fla. Jur. 2d Counties, Etc. § 223 (WestlawNext through Nov. 2016). H.R. 4027, 118th Leg., Reg. Sess. (Fla. 2016). S. 168, 118th Leg., Reg. Sess. (Fla. 2016).
Hoyt L. Prindle III 756 Stetson Law Review [Vol. 46 2017] Recent Developments 757
POLICE
Police: Seizing firearms
Dougan v. Bradshaw, 198 So. 3d 878 (Fla. 4th Dist. Ct. App. 2016)
Exhibiting suicidal behavior or mental health issues in one’s home is not sufficient to constitute a breach of the peace under Section 933.14, Florida Statutes, and thus does not permit a sheriff to require a court order before returning seized firearms. Further, a local judicial administrative order may be found invalid as applied if it results in the expansion or alteration of powers granted by statute.
FACTS AND PROCEDURAL HISTORY The Palm Beach County Sheriff’s Office carried out a safety check on John Dougan in June 2013 after a family member notified the agency that Dougan was suicidal. During the check, deputies took Dougan’s firearms, which were lawfully owned, from his home. Despite the fact that Dougan was not arrested, the deputies refused to return Dougan’s firearms without a court order, relying on a local judicial administrative order. Accordingly, Dougan brought an action against the Sheriff of Palm Beach County (the Sheriff) seeking replevin and obtained an order directing that the agency return Dougan’s firearms. Subsequently, Dougan brought the subject action, claiming that the Sheriff’s policy of refusing to return legally owned firearms taken during a safety check without a court order was illegal. Dougan sought damages for the cost of the replevin action and the denial of his property rights, along with an injunction prohibiting the Sheriff from administering this policy. The trial court granted the Sheriff’s motion to dismiss, and Dougan appealed to the Fourth District.
ANALYSIS The Fourth District began its analysis by noting an order of dismissal is reviewed de novo on appeal. A motion to dismiss for inability to properly state a cause of action is granted if the complaint, with its allegations taken as true, fails to establish a prima facie case. Under Section 790.33(1), Florida Statutes, which 758 Stetson Law Review [Vol. 46 provides that the Florida Legislature shall occupy the entire field of firearm regulation, Dougan could bring a successful action against the Sheriff if the Sheriff had enforced a policy against Dougan that was not permitted by a state statute. According to the court, the determinative question was whether Section 933.14(3), Florida Statutes, authorized the Sheriff to administer his policy against Dougan. Section 933.14(3) states that a firearm taken with a search warrant or in the case of a breach of the peace cannot be returned to the owner without a court order. The Sheriff did not have a search warrant, so his actions only fell within the scope of the provision if Dougan committed a breach of the peace. A breach of the peace is an action that violates public order, including violation of laws passed to maintain peace and order. While there is no dispositive caselaw on the issue, Chapter 394, Florida Statutes (the “Baker Act”) expressly states that a patient under the statute should not be treated as a criminal, and suggests that exhibiting suicidal inclinations in one’s own home does not constitute a breach of the peace. Therefore, the court explained that, “pursuant to express Legislative directive as outlined in the Baker Act, exhibiting a mental health illness . . . is not by itself a violation of the law” or a breach of the peace. Dougan, So. 3d 878 at 882. Accordingly, the Sheriff was not permitted to retain Dougan’s firearms. Thus, Dougan properly stated a claim that the Sheriff illegally withheld Dougan’s firearms pending a court order, and the trial court’s dismissal was in error. Although the local judicial administrative order on which the Sheriff relied did not expressly restate the statutory requirement of a “breach of the peace” to mandate a court order to return firearms, it could not amend the statute. Therefore, the Sheriff could not act solely on the authority of the administrative order, without also considering the requirements of the statute. Finally, the Fourth District addressed the Sheriff’s argument that, under the doctrine of res judicata, Dougan’s prior replevin action barred the subject suit over firearm retention. Four identities are required to bar a suit under res judicata, including the identity of: (1) that which is sued for; (2) the cause of action; (3) the parties and persons; and (4) the capacity of the persons against whom, or for whom, the action is brought. Under the first prong, the things sued for were not identical because the replevin action 2017] Recent Developments 759 sought the return of Dougan’s firearms, whereas the subject suit sought damages and an injunction. Moreover, under the second prong, the causes of action were not identical because the two actions required Dougan to prove two separate and distinct sets of facts to obtain relief. In conclusion, the Fourth District held that Dougan properly stated a cause of action. Thus, the trial court erred when it dismissed the suit. Accordingly, the Fourth District reversed and remanded the case.
SIGNIFICANCE Dougan establishes that the mere manifestation of suicidal inclinations or mental health issues in one’s home does not allow law enforcement to retain a person’s firearms under a breach of peace theory pursuant to Section 933.14(3).
RESEARCH REFERENCE 14A Fla. Jur. 2d Criminal Law—Procedure § 917 (WestlawNext through Aug. 2016).
Joseph Ruppel 760 Stetson Law Review [Vol. 46 2017] Recent Developments 761
PRACTICE & PROCEDURE
Practice & Procedure: Affirmative Defenses
Williams v. City of Jacksonville, 191 So. 3d 925 (Fla. 1st Dist. Ct. App. 2016)
A motion to dismiss is not the proper pleading for a city’s challenge that a plaintiff did not timely comply with the written notice requirements of Section 768.28(6), Florida Statutes, when the expiration of the statute of limitations is not stated on the face of the complaint. In such circumstances, the affirmative defense is appropriate to be raised in a responsive pleading.
FACTS AND PROCEDURAL HISTORY Plaintiff, Onika Williams (Williams), sued the City of Jacksonville (the City) after Williams was allegedly hit by a City police vehicle while crossing the street. In her complaint, Williams alleged that her filing was timely under the statute of limitations set out in Section 95.11(3)(a), Florida Statutes. Williams also alleged that she complied with the conditions precedent found in Section 768.28(6), Florida Statutes, which requires a plaintiff who is suing the state to provide written notice within 3 years after the claim accrued. Instead of filing an answer, the City filed a motion to dismiss, claiming Williams did not comply with Section 768.28(6) and with a city ordinance requiring plaintiffs to serve notice on the City’s General Counsel. The City argued that the time limit for Williams to comply with these rules passed and the case should be dismissed with prejudice. Williams responded that the City had actual notice of the claims made, had conducted an investigation, and had begun settlement negotiations regarding her claims, thereby waiving any requirement of further notice to the City. However, these facts were outside the four corners of the complaint and thus were not properly before the trial court for consideration of the City’s motion to dismiss. The trial court granted the City’s motion to dismiss with prejudice, finding that Williams failed to comply with the requirements in Section 768.28(6)(a). Williams then appealed the trial court’s ruling to the First District Court of Appeal. 762 Stetson Law Review [Vol. 46
ANALYSIS First, the First District held that Williams’ statements in her Complaint that she met the requirements in Sections 95.11(3)(a) and 768.28(6)(a) were adequate to defeat a motion to dismiss. The court ruled that Williams’ failure to expressly allege compliance with the city ordinance did not invalidate the complaint because Florida Rule of Civil Procedure 1.120(c) does not require the plaintiff to name the rules that contain conditions precedent. Second, the First District held that the City’s argument that Williams did not comply with Section 768.28(6)(a) was not proper for a motion to dismiss. The court reasoned that when the plaintiff alleges to have completed all conditions precedent to filing a lawsuit, the burden shifts to the defendant to deny, with specificity, that the conditions precedent were not completed. A claim of untimeliness, such as one under Section 768.28(6), is properly pled as an affirmative defense. Therefore, the defendant should make that argument in summary judgment motion or a motion for judgment on the pleadings. Defendants are allowed to bring a motion to dismiss before a responsive pleading—but only when it is based on grounds enumerated in Fla. R. Civ. P. 1.130(b) or it is based on an affirmative defense “appearing on the face of a prior pleading” per Fla. R. Civ. P. 1.110(d). In this case, the fact that Williams failed to give notice to the City’s General Counsel did not appear on the face of Williams’ complaint. Therefore, the court held, “Because the facts alleged on the face of the complaint do not conclusively establish that the statute of limitations for pre-suit notice to the City bars Ms. Williams’ claim, dismissal of her lawsuit with prejudice was reversible error.” Williams, 191 So. 3d at 928. Finally, the court noted that the additional facts brought forth by Williams during the hearing on the motion to dismiss should not have been considered by the lower court because the evidence was outside the four corners of the complaint. The court held if Williams could plead these additional facts to defeat an affirmative defense, then granting the motion to dismiss would not be appropriate. For these reasons, the First District reversed and remanded the case back to the lower court.
SIGNIFICANCE Williams states that a bar to a lawsuit based on untimeliness of a condition precedent should be pled as an affirmative defense, 2017] Recent Developments 763 and it is not properly challenged in a motion to dismiss when the defense does not appear on the face of a prior pleading.
RESEARCH REFERENCE 12A Fla. Jur. 2d Counties, Etc. § 340 (WestlawNext through Nov. 2016).
Collin Mixon
Practice & Procedure: Damages
Magnum Construction Management Corporation v. City of Miami Beach, 209 So. 3d 51 (Fla. 3d Dist. Ct. App. 2016)
When a construction contract has a requirement to notify a contractor of defects and provide an opportunity to cure, failure to do so precludes recovery for the defects. Also, damages in construction contracts are the reasonable cost to complete the planned construction and cannot be based on evidence of actual cost to remedy if remediation departed from the original plan.
FACTS AND PROCEDURAL HISTORY Magnum Construction Management Corporation (MCM) constructed a playground and a park for the City of Miami Beach (the City). After auditing the playground, the City found minor defects regarding safety standards required by the construction contract. Without notifying MCM of the defects, the City entirely removed and replaced the playground. With regards to the park, landscaping began to worsen after a flood and it was determined these defects were largely due to over-compacting of soil in MCM’s construction. The City tried unsuccessfully to maintain the park and then hired a new party to remedy the defects. The City sued for breach of contract and prevailed at trial on both the playground and the landscaping defects. For the landscaping defects, the trial court only awarded about $1 million from $3 million requested in damages, holding that the difference constituted costs for improvement that MCM was not liable for. MCM appealed to the Third District. 764 Stetson Law Review [Vol. 46
ANALYSIS In reviewing the award for the playground defects, the Third District looked to the City’s contractual obligations. The court focused on a provision requiring MCM to promptly correct defects after being notified by the City and construed it as an obligation that the City provide notice and an opportunity to cure. The court also pointed to other clauses showing the contract’s overall intent that MCM would have notice and a chance to cure. The court reversed the finding that MCM was liable, reasoning that the City was precluded from recovering for the defects “[b]ecause MCM was not provided with an opportunity to cure the defects in the playground, as required by the contract documents.” Magnum Constr. Mgmt. Corp., 209 So. 3d at 55. In reviewing the award for the landscaping defects, the court held the trial court was correct in not awarding costs for improvement, but that the $1 million awarded was still speculative. The City only cited evidence as to the cost of fixing the landscaping, but the remediation project was different from the original plan. Reasoning that this was not reflective of the reasonable cost to complete the construction as planned, the court remanded this issue for further proceedings.
SIGNIFICANCE Magnum Construction establishes that failing to notify a contractor of defects and giving an opportunity to cure, when contractually required, precludes recovery for the defects. It also clarifies that evidence of the cost to remedy a defect cannot support an award for damages if the remediation was different from the originally planned project.
RESEARCH REFERENCES 11 Fla. Jur. 2d Contracts § 235 (WestlawNext through Feb. 2017). John P. Ludington, Annotation, Modern Status of Rule as to Whether Cost of Correction or Difference in Value of Structures is Proper Measure of Damages for Breach of Construction Contract, 41 A.L.R.4th 131, § 22 (1985).
Ahmed H. Mohamed 2017] Recent Developments 765
Practice & Procedure: Dispute Resolution
City of Miami v. Village of Key Biscayne, 197 So. 3d 580 (Fla. 3d Dist. Ct. App. 2016)
The out-of-court dispute resolution procedure provided for governmental entities by Chapter 164, Florida Statutes, gives the governmental entity initiating the proceeding the discretion to provide notice to additional governmental entities that it determines may play a role in or be affected by the proceeding. The judiciary does not have discretion to determine which additional entities must be included in the Chapter 164 proceeding.
FACTS AND PROCEDURAL HISTORY The City of Miami (the City) agreed to allow the National Marine Manufacturer’s Association (the NMMA) to conduct a boat show in Virginia Key. The NMMA applied to Miami-Dade County (the County) for permission to build floating docks for the show. The County granted the application and issued NMMA a permit. Before the boat show, the Village of Key Biscayne (the Village) sued the County, claiming that the permit was not in accordance with the County’s Comprehensive Development Master Plan. After initiating the litigation, the Village invoked Chapter 164’s dispute resolution procedure to attempt to resolve the matter outside of the courtroom, seeking a conflict assessment meeting between itself and the County alone. Accordingly, the trial court abated the litigation. Before the meeting, the City filed a motion to intervene alleging the Village unlawfully failed to provide notice of the meeting to the City. The trial court entered an order deferring a ruling on the motion to intervene. In response, the City sought a writ of mandamus from the Third District, ordering the trial court to rule on the motion to intervene. The City argued it was an indispensable party, and thus, the trial court had to permit intervention and compel the Village to allow the City to join the Chapter 164 proceeding.
ANALYSIS The Third District began its analysis by describing Chapter 164. The law provides an out-of-court dispute resolution procedure to opposing governmental entities in Florida. The entity initiating the procedure must send notice to the government that is adverse 766 Stetson Law Review [Vol. 46 to it. Within 30 days of receipt of the notice, the parties must participate in a conflict assessment meeting. In addition, the initiating entity must send a notice to those governments that—in the initiating entity’s own determination—may play a role in the resolution of the conflict or may be affected by the resolution. Governmental entities that do not receive the notice may not participate in the Chapter 164 proceeding. The court then analyzed the nature of the judiciary’s role in adjudicating Chapter 164 notices and intervention disputes. In this case, the City argued that it should be allowed to intervene based on an indispensable party analysis. According to the Third District, the trial court properly noted that the law provides the initiating government with authority to determine which additional governments may participate in the Chapter 164 proceeding. As the Third District explained, “The trial court recognized that the Florida Legislature provided no role for judicial involvement in determining the participants in the [C]hapter 164 proceedings.” Miami, 197 So. 3d at 583. Because the trial court did not have discretion to compel the Village to include the City in the proceedings, the Third District did not have authority to issue a writ of mandamus directing the trial court to rule on the City’s motion for intervention. Accordingly, the court denied the petition for writ of mandamus.
SIGNIFICANCE City of Miami establishes that broad discretion is granted solely to governmental entities initiating Chapter 164 proceedings in determining whether to include additional governments in the proceedings.
RESEARCH REFERENCE 12A Fla. Jur. 2d Counties, Etc. § 346 (WestlawNext through Aug. 2016).
Joseph Ruppel 2017] Recent Developments 767
Practice & Procedure: Pleading Sufficiency
Harris v. City of Boynton Beach, No. 9:16-cv-80148, 2016 WL 3971409 (S.D. Fla. July 25, 2016)
The allegations of a complaint will survive a motion to dismiss, so long as there is a way the court may illustrate the allegations are plausible.
FACTS AND PROCEDURAL HISTORY The Boynton Beach Police Department (the police department) has been the subject of numerous complaints for police misconduct over the course of the last decade. The police department has been accused of police brutality, use of excessive force, and falsification of police reports. The City of Boynton Beach (Boynton Beach) has been accused of failing to properly investigate these complaints, which has led to a culture of unchecked misconduct among police. Byron L. Harris, Jr. (the plaintiff) was driving at night in Boynton Beach. Officer Justin Harris (Officer Harris) attempted to stop the plaintiff for running a stop sign. The plaintiff decided not to stop and attempted to flee from Officer Harris. Eventually, eight to nine officers were in pursuit of the plaintiff while he attempted to allude officers on the freeway. Upon exiting the freeway in Lake Worth, the plaintiff decided to surrender to the police. At this time, his driver’s side door was rammed shut by a police officer’s vehicle. The nine Boynton Beach Police officers, with weapons drawn, pulled the plaintiff and his passengers from the car and proceeded to violently batter and tase them. Other officers stood by and failed to intervene in the battery while the incident was being filmed by the Palm Beach County Sheriff’s Office via helicopter. The Boynton Beach Police officers then submitted falsified police reports, claiming that the vehicle occupants had fought with the police and refused to exit the car. The plaintiff filed suit in the United States District Court for the Southern District of Florida claiming a violation of his constitutional and civil rights under 42 U.S.C. § 1983 and claiming battery. Several of the officers and Boynton Beach then challenged the sufficiency of the plaintiff’s complaint by filing motions to dismiss. 768 Stetson Law Review [Vol. 46
ANALYSIS Because the Southern District was analyzing whether the plaintiff had pled sufficiently to overcome a motion to dismiss, the court began with addressing the pleading standards laid out by Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009). The court noted that the pleadings should be plausible and allegations should be factual rather than conclusory. In turn, the court applied the pleading standards to each count of the case. First, the court analyzed Count I, which alleged that accepted police department policies caused a violation of the plaintiff’s constitutional rights. Boynton Beach asserted that the claims against it and the police officers on this count were merely conclusory. In disagreeing, the court went into great detail about the claims against the individual officers and Boynton Beach, concluding that the allegations were “sufficient to state a facially plausible municipal liability claim because they permit[ted] ‘the reasonable inference that [Boynton Beach] [was] liable for the misconduct alleged.’” Harris, 2016 WL 3971409, at *6 (quoting Hoefling v. City of Miami, 811 F.3d 1271, 1281 (11th Cir. 2016)). Second, the court discussed Count II, which alleged that Boynton Beach was vicariously liable to the plaintiff for battery. Boynton Beach challenged this claim because Florida law does not allow both the police officers and the city itself to be liable for the battery. However, the court stated that just because both parties cannot be liable does not mean the plaintiff could not assert both claims in the initial complaint. Third, the court assessed Counts XI and XII, which alleged that the police officers violated the plaintiff’s constitutional rights by using excessive force. Officer Harris contended that there was not sufficient evidence the he himself ever rejoined the chase to commit a battery. The court reasoned that regardless of whether he actually did rejoin, it had to infer that he did or otherwise it would have to disregard the plaintiff’s assertion that Officer Harris was one of the arresting officers. Fourth, the court looked at Count XVII, which alleged that multiple officers failed to stop the use of excessive force when they could have done so. Caselaw provides that to be liable under this charge, an officer must be in a position to stop the excessive force, yet fail to do so. The court concluded that the plaintiff’s complaint 2017] Recent Developments 769 laid out sufficient detail to plausibly show that the officers could have intervened to stop the use of excessive force. Finally, the court reviewed Count XIX, which alleged that the police officers conspired to take away the plaintiff’s constitutional rights. To prove a conspiracy, the plaintiff has to establish that the parties came together and agreed to deprive the plaintiff of his or her constitutional rights. Because the plaintiff’s complaint alleged that the conspiratorial events occurred after the alleged violation of constitutional rights, the court found the allegation to be implausible. The court further took issue with plaintiff’s exception to the intracorporate conspiracy doctrine, which provides that cities and employees cannot conspire amongst themselves. The plaintiff attempted to rely on an exception for officers who create the illusion of propriety, but because the Eleventh Circuit had not adopted the exception, the court did not recognize it. Accordingly, the court dismissed Count XIX and allowed all other counts in the complaint to remain.
SIGNIFICANCE Harris reaffirms the plausibility standard from Twombly and Iqbal, but shows that the courts will strive to construe the facts alleged in the complaint in a way that is favorable to the plaintiff. Additionally, the case is a reminder to practitioners to be precise when applying caselaw, as the plaintiff’s incorrect application of precedent for the intracorporate conspiracy doctrine helped lead to that allegation’s dismissal.
RESEARCH REFERENCES 48A Fla. Jur. 2d State of Florida § 336 (WestlawNext through Nov. 2016). 61A Am. Jur. 2d Pleading § 104 (WestlawNext through Nov. 2016).
Hoyt L. Prindle III 770 Stetson Law Review [Vol. 46
Practice & Procedure: Standing
Village of Key Biscayne v. The Department of Environmental Protection, 206 So. 3d 788 (Fla. 3d Dist. Ct. App. 2016)
To have standing to challenge an environmental resource permit under Florida’s Administrative Procedure Act (APA), the petitioner must demonstrate that he or she will be substantially affected by the Department of Environmental Protection’s (the DEP) proposed decision and the type of injury is of the nature that the administrative proceeding is designed to protect against.
FACTS AND PROCEDURAL HISTORY The DEP issued a five-year environmental resource permit authorizing installation of temporary floating docks in Biscayne Bay at the Miami Marine Stadium. The residents of Key Biscayne appealed the DEP’s final order, challenging the agency’s decision to issue the permit. Key Biscayne argued that the DEP violated its due process rights because the agency’s General Counsel was directly involved in both the approval of the permit application and the denial of Key Biscayne’s petition.
ANALYSIS The Third District Court of Appeal began by reviewing the issue of standing and determined that to challenge the proposed environmental permit, the petitioner had to allege (1) its substantial environmental interests were within the zone of the proposed environmental permit and (2) its substantial environmental interests were affected by the DEP’s proposed decision. In its analysis, the Third District agreed with the DEP that Key Biscayne lacked standing to challenge the permit issuance. The court reasoned that Key Biscayne’s allegations, which were economic investments and contractual obligations, were not the types of interests protected by this administrative proceeding because they did not comply with the standing test the court used. Additionally, the court dismissed Key Biscayne’s allegations of non-compliance with the local land use restrictions, citing to caselaw and reasoning that such allegations were outside the zone of interest of this environmental permitting proceeding. 2017] Recent Developments 771
Further, the court emphasized that the DEP’s General Counsel had the authority to make determinations on whether the challenging petition was in “substantial compliance” with the Section 120.569, Florida Statutes. In addressing Key Biscayne’s violation of due process allegations, the court found no fundamental error in the agency’s conduct because the agency complied with the requirements of the APA. Finally, the court noted the administrative “system [was] presently hazardous to those who want to request an administrative hearing,” but the only recourse was legislative change through statutory modifications. Village of Key Biscayne, 206 So. 3d at 793.
SIGNIFICANCE Village of Key Biscayne emphasizes the importance of standing to challenge the issuance of proposed environmental permits and reiterates that the test requires the petitioner to demonstrate that it will be substantially affected by the proposed decision and that the type of injury is of the nature that the administrative proceeding is designed to protect.
RESEARCH REFERENCE 2 Fla. Jur. 2d Administrative Law § 248 (WestlawNext through Feb. 2017).
Karolina Apa
Practice & Procedure: Writ of Mandamus
Miami-Dade County Board of County Commissioners v. An Accountable Miami-Dade, 208 So. 3d 724 (Fla. 3d Dist. Ct. App. 2016)
In order to grant a petition for writ of mandamus compelling a local government to act, a trial court must (1) determine that the petitioner has an established legal right to relief; (2) make a finding that there are no disputed factual issues; and (3) comply with due process and other procedural safeguards, including allowing the local government to adequately respond to the petition. Courts may not take extraordinary measures—such as expanding the scope of a hearing to issues not noticed for that 772 Stetson Law Review [Vol. 46 hearing—to provide relief to a petitioner seeking a writ of mandamus.
FACTS AND PROCEDURAL HISTORY Miami-Dade County is a charter county in the state of Florida. In 2002, the County Charter was amended to include a citizen’s initiative process which allows citizen-driven measures to be placed on the ballot. This initiative process is codified in Section 8.01 of the Miami-Dade Charter. The initiative process adheres to the following procedure: (1) the proposal and ballot language shall be submitted to the Clerk of the Court (the Clerk) for approval as to form; (2) the initiator must obtain signatures from four percent of the county’s registered voters within 120 days of petition approval; (3) the petition must be filed with the Board of County Commissioners (the Board) within 30 days to determine the validity of the signatures; and (4) the Board may adopt the initiative itself within 30 days, and if it does not, the initiative will be placed on the ballot. An Accountable Miami-Dade (AAMD) filed a petition with the Clerk. The petition sought to limit campaign contributions to candidates running for county offices to $250, prohibit contractors from donating to county candidates, and change the definition of a gift for the purposes of political donations. Two days after submission, the Clerk informed AAMD that the petition was compliant as to form. On April 28, 2016, the Clerk provided a letter to AAMD stating that it had 120 days from the date of the letter to procure the required signatures. The petition was placed on the Board’s calendar for May 17, 2016. However, the Board never discussed the petition at that meeting. On August 2, 2016, AAMD submitted its signed petition to the Clerk, which started a 30-day time window for the Board to order a canvass of the signatures. Some problems arose, delaying the Board’s meeting for several weeks, so on August 22, 2016, the Board directed the Supervisor of Elections to canvass the signed petitions. Prior to the completion of the canvass, AAMD filed a petition for writ of mandamus with the trial court in order to have the initiative placed on the ballot. On September 6, 2016, the trial court, on its own accord, ordered the parties to appear at a hearing on September 8, 2016, to discuss a motion to expedite. On the same day, the Clerk certified to the Board that the canvass had been 2017] Recent Developments 773 completed and that a majority of the signatures were invalid. Then, on September 7, 2016, the Board determined that the petition was deficient and did not place it on the ballot. Subsequently, on September 8, 2016, the trial court, rather than dealing with the motion to expedite as planned, debated the merits of the petition itself, and the next day granted the writ of mandamus. The Board appealed to the Third District.
ANALYSIS The Third District began by assessing whether a writ of mandamus was appropriate. Mandamus is only available when there is a clearly established legal right and when the duty in question is ministerial, not discretionary. The court determined that, because the Board never determined the petition to be sufficient, there was no established legal right nor was there a ministerial duty to place the petition on the ballot without a finding of sufficiency. Accordingly, AAMD failed to establish any legal right to a writ of mandamus and the court reversed and vacated the trial court’s order for the writ. Next, the court provided an additional reason for reversal— violation of Fla. R. Civ. P. 1.630 for ordering extraordinary writs. Once a petitioner establishes a prima facie case to receive the writ, a trial court must issue a “show cause” order to allow the respondent to assert why the writ should not be granted. The respondent then must be given a reasonable amount of time to file a response. Despite the trial court noting the mandatory requirements of Fla. R. Civ. P. 1.630, it nevertheless issued a writ of mandamus without allowing the appropriate response. Therefore, the Third District reversed on these grounds as well. Finally, the court reviewed whether the trial court violated the Board’s due process rights. “[T]he granting of relief, which is not sought by the notice of hearing or which expands the scope of a hearing and decides matters not noticed for hearing, violates due process.” An Accountable Miami-Dade, 208 So. 3d at 734 (quoting Celebrity Cruises, Inc. v. Fernandes, 149 So. 3d 744, 750 (Fla. 3d Dist. Ct. App. 2004)). Thus, because the trial court reviewed the petition’s merits at the hearing, while the noticed purpose was merely regarding a motion to expedite, the court determined the Board’s due process was violated and reversed on these grounds as well. 774 Stetson Law Review [Vol. 46
SIGNIFICANCE An Accountable Miami-Dade affirms that a failure to provide parties with the proper notice of the proceedings against them prior to ruling on an issue is likely to result in a due process violation. Here, had the trial court informed the parties that the petition would be addressed at the September 8th hearing, a due process violation would have been avoided. Additionally, courts must follow the express guidelines of the Florida Rules of Civil Procedure. Finally, the case reaffirms that mandamus cannot be used to determine whether there is a legal right—it is only appropriate to enforce a clearly established legal right.
RESEARCH REFERENCES 12A Fla. Jur. 2d Counties, Etc. §§ 215–17 (WestlawNext through Nov. 2016). Trawick, Fla. Prac. & Proc. § 36:4 (WestlawNext through Dec. 2016).
Hoyt L. Prindle III 2017] Recent Developments 775
PUBLIC EMPLOYEMENT
Public Employment: Collective Bargaining
Lee Amato and Donald Lewis Bouchard v. City of Miami Beach, 208 So. 3d 235 (Fla. 3d Dist. Ct. App. 2016)
Under the Public Employees Relation Act (PERA), the Florida Public Employees Relations Commission (PERC) has exclusive jurisdiction to settle disputes over alleged unfair labor practices. Activity occurring during collective bargaining processes and while public officials are engaged in official duties is subject to PERA and PERC—even if that activity constitutes activity that is not in conformity with PERA’s and PERC’s regulations.
FACTS AND PROCEDURAL HISTORY Leo Amato and Donald Bouchard (Appellants) are retired City of Miami Beach firefighters. They alleged that the City of Miami Beach (the City), union officials, and an outside consultant engaged in secret talks and side deals during collective bargaining negotiations, duping Appellants into choosing a specific retirement plan. Appellants alleged that they were purposefully led to believe that a three-year Deferred Retirement Option Plan (DROP) would be eliminated, and that they were not told of a five-year DROP option replacement. Because of this, Appellants chose the three- year DROP option. Appellants filed suit, which the trial court dismissed after finding it lacked subject matter jurisdiction for some appellees. Further, Appellants’ claims against the appellees were barred by the statute of limitations. Appellants appealed to the Third District.
ANALYSIS The Third District began by explaining PERA, which governs collective bargaining among public employees, public employers, and employee organizations. Under PERA, PERC has exclusive jurisdiction and settles disputes that allege unfair labor practices. The court then addressed Appellants’ amended complaint, which alleged that the Appellants were targeted, duped, and manipulated into choosing the three-year DROP option. The court 776 Stetson Law Review [Vol. 46 concluded “[b]ecause the complained-of conduct allegedly occurred during the collective bargaining process and while the Union Officials were engaging in the scope of their official duties and responsibilities as Union Officials, and the alleged actions . . . would constitute unfair labor practices, the appellants’ claims were subject to the exclusive jurisdiction of PERC.” Amato, 208 So. 3d at 237. Next, the court stated that PERC requires exhaustion of administrative remedies, including the filing of a PERC complaint, before a lawsuit can be filed in court. The court concluded it lacked subject matter jurisdiction because Appellants did not exhaust their administrative remedies. Further, the court noted that the statute of limitations to file a PERC complaint is six months. Thus, the court also concluded that Appellants’ claims were time-barred because the six-month period had expired. Finally, the court turned to the claim against the outside consultant for breach of fiduciary duty. Though not falling under PERC, this claim was also time-bared because the four-year statute of limitations for breach of fiduciary duty had expired. Therefore, the Third District affirmed the trial court’s order.
SIGNIFICANCE Amato reinforces what activity falls within the preview of PERA and PERC. Even when the alleged activity is not in conformity with PERA and PERC regulations, if the activity occurs during collective bargaining or while public officials are engaged in official duties it is still subject to the exclusive jurisdiction of PERC.
RESEARCH REFERENCE 34 Fla. Jur 2d Labor and Labor Relations § 174 (WestlawNext through Feb. 2017).
Sandrine Guez 2017] Recent Developments 777
Public Employment: Pensions and Retirement
City of Hollywood v. Bien, 209 So. 3d 1 (Fla. 4th Dist. Ct. App. 2016)
Governments may change the retirement benefits of employees so long as the changes do not affect any currently received retirement benefits.
FACTS AND PROCEDURAL HISTORY The City of Hollywood (the City) faced significant fiscal constraints after the economic collapse and recession of 2008 to 2009. As a response to these constraints, the City enacted an ordinance that placed a deadline of September 30, 2011, on any City employees who wished to enter into the Deferred Retirement Option Plan (DROP). Any employee who did not opt-in to the DROP plan by that date would not be eligible to participate in the program. Lyle Bien, Norris Redding, Derrick Austin, and Mark Ruggles were all officers with the City’s police department. Not wanting to receive a lower monthly retirement payment, three of the officers filed their DROP applications but set the effective date after September 30, 2011, in an attempt to obtain higher retirement payments, as could be done before the enactment of the ordinance. Because the effective dates were past the ordinance’s deadline, the City did not grant the officers entry into DROP. The officers filed for declaratory relief with the circuit court, which ruled in favor of the officers. The City appealed to the Fourth District.
ANALYSIS The Fourth District began by addressing whether the officers had a vested interest in waiting to enter the DROP program and whether the ordinance passed by the City changing the DROP program sufficiently demonstrated a compelling interest. The court ultimately chose not to rule on this issue, as the next issue— regarding contract rights—was conclusive in determining the outcome for this case. To conduct its analysis on whether the ordinance impaired the contract rights of the employees, the Fourth District looked to two Florida Supreme Court cases. In Florida Sheriffs Ass’n v. Department of Administration, Division of Retirement, 408 So. 2d 778 Stetson Law Review [Vol. 46
1033 (Fla. 1981), the Florida Supreme Court determined that once an employee effectively retires, his or her contract rights are vested and cannot subsequently be changed. Further, the Florida Supreme Court in Scott v. Williams, 107 So. 3d 379 (Fla. 2013) held that the legislature may make changes to retirement benefits so long as they are prospective and any retirement benefits already earned are not altered. Using those two cases as guidance, the court found “the ordinance at issue here did not impair any contract rights . . . [because] it permitted officers already eligible to enter DROP to do so and to enjoy the full benefits of DROP, albeit with an imposed deadline for entry.” Bien, 209 So. 3d at 3. Accordingly, the Fourth District reversed the circuit court and remanded for further proceedings.
SIGNIFICANCE Bien affirms that city and county governments, as well as the state legislature, may make changes to the retirement programs of government employees, so long as the changes do not affect current benefits being received. The decision also affirms that employees do not have a vested interest in benefits not yet received.
RESEARCH REFERENCES 39 Fla. Jur. 2d Pensions and Retirement Funds §§ 2, 69 (WestlawNext through Feb. 2017).
Hoyt L. Prindle III 2017] Recent Developments 779
PUBLIC RECORDS & MEETINGS
Public Records & Meetings: Public Records Act Attorney’s Fees
Board of Trustees, Jacksonville Police & Fire Pension Fund v. Lee, 189 So. 3d 120 (Fla. 2016)
When a state agency does not permit documents to be inspected or copied under the Public Records Act, the prevailing party in a suit for noncompliance is entitled to attorney’s fees. An award of attorney’s fees is proper regardless of whether the public agency acted “unreasonably,” acted in “bad faith,” or “did not act in good faith.”
FACTS AND PROCEDURAL HISTORY Curtis W. Lee (Lee) requested records under the Public Records Act (the Act) from the Board of Trustees, Jacksonville Police & Fire Pension Fund (the Board). The Board imposed several conditions before allowing Lee to inspect and copy the records. Lee refused to comply with the conditions, was denied access, and eventually filed suit alleging that the conditions imposed were unlawful. The trial court found that two conditions imposed were unlawful and Lee moved for attorney’s fees under Section 119.12, Florida Statutes (the Statute), which grants attorney’s fees for violation of the Act. The First District Court of Appeals determined that Lee was entitled to attorney’s fees because the Board unlawfully refused to allow Lee access to certain records, regardless of whether the Board had malicious intent. This created a district split, and the Board appealed.
ANALYSIS In analyzing whether a state agency could be required to pay attorney’s fees for simple noncompliance with the Act, the Florida Supreme Court emphasized that Florida places great importance on granting access to public records. The court then turned to statutory construction and noted that the Legislature intentionally expanded the Statute to grant attorney’s fees whenever a state agency “unlawfully refused” to comply with the Act. Lee, 189 So. 3d at 124 (quoting Fla. Stat. § 119.12 (2009)). The language of the 780 Stetson Law Review [Vol. 46
Statute and the Legislature’s choice to award attorney’s fees for mere noncompliance with the Act indicates that the Statute “is not contingent on a finding of the public agency’s unreasonableness or bad faith before allowing for an award of attorney’s fees under [the Act].” Id. at 127. Thus, when an agency does not allow public records to be inspected or copied in violation of the Act, a prevailing party is entitled to attorney’s fees. Justice Canady dissented, arguing that the Statute should be read in conjunction with the rest of the chapter. In reading the chapter as a whole, Justice Canady found that the Legislature intended to impose a duty of good faith on state agencies in complying with public records requests. As such, Justice Canady would have held that if a state agency acted in good faith in its noncompliance, that state agency could not be ordered to pay attorney’s fees.
SIGNIFICANCE Lee establishes that when a state agency does not comply with the Act in allowing public records to be inspected and copied, the state agency can be required to pay the prevailing party’s attorney’s fees in a suit for noncompliance. Furthermore, the prevailing party need only show that the state agency did not legally comply with the Act and does not need to prove that the agency acted in bad faith or unreasonably.
RESEARCH REFERENCE 2 Fla. Jur. 2d Administrative Law § 57 (WestlawNext through Aug. 2016).
Shelby Mars
Public Records & Meetings: Public Records Act Attorney’s Fees
Citizens Awareness Foundation, Inc. v. Wantman Group, Inc., 195 So. 3d 396 (Fla. 4th Dist. Ct. App. 2016)
Custodians of public records must comply with public records requests. However, if a request is made through a medium—such as an anonymous and cryptic email—where the custodian cannot 2017] Recent Developments 781 verify the validity of the request or determine that it was made by an actual person, the requester may not be entitled to attorney’s fees if the agency fails to comply with the request.
FACTS AND PROCEDURAL HISTORY Citizens Awareness Foundation, Inc. (CAFI) sought the production of public records and an order granting an award of attorney’s fees from Wantman Group, Inc. (Wantman) pursuant to the provisions of Chapter 119, Florida Statutes. Wantman and the South Florida Water Management District (the District) entered into a contract in which Wantman provided consulting services to the District. Pursuant to the terms of the contract, Wantman allowed public access to project documents in accordance with Florida’s public records statute. CAFI submitted—via email—a public records request to Wantman for the production of project documents; however, CAFI did not provide any identifying information and provided an email address that appeared to be spam. CAFI filed suit against Wantman, arguing that Wantman refused its public records request in violation of Florida’s public records statute. CAFI asked for an award of attorney’s fees and costs. Upon learning that the request was legitimate, Wantman voluntarily provided the requested documents. In granting summary judgment in favor of Wantman—effectively denying CAFI’s request for attorney’s fees and costs—the 15th Judicial Circuit concluded that it was unclear whether Wantman was subject to the public records law and whether Wantman unlawfully refused CAFI’s request. CAFI appealed to the Fourth District.
ANALYSIS The Fourth District began by addressing whether Wantman was subject to the public records law. The court found that every custodian of public records shall allow inspection and reproduction of such records under proper supervision. It also reasoned that custodians shall respond to public records requests promptly and in good faith. Next, the court considered whether Wantman unlawfully refused CAFI’s request to provide the documents requested. The court explained that attorney’s fees and costs are awarded when a custodian unlawfully refuses to allow access to public records. “Unlawful refusal under [Florida’s public records 782 Stetson Law Review [Vol. 46 law] includes not only affirmative refusal to produce records, but also unjustified delay in producing them.” Citizens Awareness, 195 So. 3d at 399 (quoting Lilker v. Suwannee Valley Transit Authority, 133 So. 3d 654, 655 (Fla. 1st Dist. Ct. App. 2014)). The court then addressed whether Wantman’s delay constituted an unlawful refusal. A finding of unjustified delay is fact specific. Therefore, courts consider the underlying facts that caused the delay. The court explained that CAFI’s email request warranted suspicion because it appeared deceptive and was sent from an undisclosed sender. The court further reasoned that Wantman did not act in bad faith in ignoring the email request because there was no indication that the request was made by a person or a company and Wantman’s computer network did not recognize the sender’s email extension. Wantman’s delay in providing public records was not an unlawful refusal or an unjustified delay. Therefore, CAFI was not entitled to attorney’s fees. The court clarified that this case was distinguishable from Board of Trustees, Jacksonville Police & Fire Pension Fund v. Lee, 189 So. 3d 120 (Fla. 2016), decided the month prior, because in the instant case, the issue did not pertain to good faith; it pertained to whether there was an unlawful refusal at all.
SIGNIFICANCE Citizens Awareness clarifies that a request for public records should be clear and unambiguous so that the recipient can tell it is a legitimate request from a person or company. If a request appears to be spam, and the records custodian releases the requested records soon after learning it is a legitimate request, the delay does not constitute an unlawful refusal.
RESEARCH REFERENCES 44 Fla. Jur. 2d Records and Recording Acts § 142 (WestlawNext through Aug. 2016). 44 Fla. Jur. 2d Records and Recording Acts § 143 (WestlawNext through Aug. 2016).
Alexander Howell 2017] Recent Developments 783
Public Records & Meetings: Public Records Act Attorney’s Fees
Schweickert v. Citrus County Florida Board, 193 So. 3d 1075 (Fla. 5th Dist. Ct. App. 2016)
A claim under Florida public records law is not rendered moot after the plaintiff has been provided the records when a dispute still exists regarding a potential award of attorneys’ fees. Moreover, records related to abusive behavior are not exempt from production under Section 119.071(2)(g)(1), Florida Statutes, in the absence of any claim of discrimination.
FACTS AND PROCEDURAL HISTORY In June 2014, Brad Thorpe, an employee of the Citrus County Board of County Commissioners (the Board), sent a complaint letter to the Board stating that County Commissioner Scott Adams exhibited insulting and demeaning behavior toward county employees, creating a hostile work environment. The Board hired an attorney, Dorothy Green (Green), to investigate these allegations. In September 2014, Robert Schweickert, Jr., an online newspaper publisher, sent two public records requests to Green seeking all documentation related to the investigation. Green replied that she was unable to provide the records because they were exempt from production pursuant to Section 119.071(2)(g)(1), Florida Statutes. Schweickert then filed a complaint seeking a writ of mandamus to force production of the records, a declaration that the Board acted unlawfully in denying Schweickert access to the records, an injunction compelling production of the records, and payment of attorneys’ fees. After Schweickert filed suit, Green provided Schweickert with a copy of the relevant investigative report. The Board then motioned to quash service of Schweickert’s complaint, which the trial court granted. Subsequently, Schweickert filed an amended complaint seeking attorneys’ fees and a declaration that the Board acted unlawfully in denying his request. Thereafter, the Board filed a motion to dismiss the amended complaint, arguing the case was moot because Green had given the report to Schweickert. The court granted the motion and dismissed the amended complaint, 784 Stetson Law Review [Vol. 46 reasoning that it was no longer necessary to determine whether the records were exempt from production. Schweickert appealed.
ANALYSIS The Fifth District began its analysis by stating that a case is moot when there is no longer a controversy and a judicial ruling would have no effect. A case is not dismissible as moot when the issue presented is generally important or when the legal consequences of the issue affect a party’s rights. Schweickert argued that the case was not moot because the legal consequences of the public records law determination would affect his right to attorneys’ fees. The court turned to precedent to determine the validity of Schweickert’s argument. In Mazer v. Orange County, 811 So. 2d 857 (Fla. 5th Dist. Ct. App. 2002), the court denied the plaintiff’s public records request, so he sued seeking production of the records and attorneys’ fees. The county then made the code available to the plaintiff, and the trial court granted the county’s motion to dismiss, ruling that the case became moot upon furnishing of the code. On appeal, the court held that the case was not moot because the plaintiff’s potential right to attorneys’ fees was still unsettled. Relying on this precedent, the Fifth District ruled that the subject case was not rendered moot simply because Green had provided the report. Next, the court turned to the Board’s argument that Green acted lawfully when she withheld the documents because such documents were initially exempt from disclosure under Section 119.071(2)(g)(1), Florida Statutes. The provision states that records relating to complaints of particular forms of discrimination are exempt until there is a finding made regarding probable cause, the relevant investigation becomes inactive, or the relevant records become part of official court or hearing record. The Board argued that the nature of the complaint evidenced a possibility that Green may have discovered records relating to discrimination during the course of her investigation. Thus, the Board claimed that Green was permitted to wait until the investigation was complete to turn over the records, and therefore Green did not violate the public records law and the Board was not liable for attorneys’ fees. The Fifth District rejected the Board’s argument because Thorpe’s complaint did not make reference to any form of 2017] Recent Developments 785 discrimination covered by the exemption. As the court stated, “Although Thorpe’s complaint letter listed many examples of alleged abusive behavior . . . the complaint did not assert any form of discrimination based upon race, color, religion, sex, national origin, handicap or marital status.” Schweickert, 193 So. 3d at 1080. Moreover, the public records law is supposed to be interpreted broadly to promote open government. As such, the exemption did not apply and Green acted unlawfully in delaying production of the records. Accordingly, the Fifth District reversed the trial court’s decision and remanded the case for determination of attorneys’ fees and costs.
SIGNIFICANCE Schweickert explains that production of requested documents does not necessarily render a claim under public records law moot when a disputed claim for attorneys’ fees still exists. Further, Schweickert establishes that documents are not exempt from production under Section 119.071(2)(g)(1), Florida Statutes, if there is no claim or evidence of discrimination.
RESEARCH REFERENCES 44 Fla. Jur. 2d Records and Recording Acts § 142 (WestlawNext through Aug. 2016). 44 Fla. Jur. 2d Records and Recording Acts § 143 (WestlawNext through Aug. 2016).
Joseph Ruppel
Public Records & Meetings: Public Records Act Exemptions
Jones v. Miami Herald Media Co., 198 So. 3d 1143 (Fla. 1st Dist. Ct. App. 2016)
A government agency is not required to identify the exemption relied upon for each individual redaction from documents provided in response to a public records request, but rather, it must identify the exemptions claimed record-by-record.
FACTS AND PROCEDURAL HISTORY In response to the Miami Herald Media Company’s (the Miami Herald) public records request, the Department of Corrections (the 786 Stetson Law Review [Vol. 46
DOC) produced documents that included numerous redactions. The DOC’s redactions were made pursuant to Section 119.07(1)(d), Florida Statutes (the Public Records Act), which allows the party producing public records to redact parts of the documents that are confidential or exempt from disclosure pursuant to Florida law. However, Section 119.07(1)(e) of the Public Records Act requires the producing party to provide the specific statutory basis for any redaction. In this case, the DOC provided the Miami Herald with a check-box form listing the statutory exemptions relied on in making the redactions. This form did not indicate which exemption was being applied to each particular redaction, and the DOC refused to provide such information to the Miami Herald. The Miami Herald filed for injunctive and mandamus relief under the Public Records Act, seeking to force the DOC to provide the exemption being claimed for each individual redaction. At first, the trial court denied the request for relief, holding that the DOC was in compliance with the law by simply providing a list of claimed exemptions. However, four months later, the trial court reversed its decision sua sponte, and held that the DOC needed to provide the specific exemption applicable to each redaction that was made. The DOC appealed the trial court’s ruling.
ANALYSIS The First District held that Section 119.7(1)(e) of the Public Records Act would not require the DOC to provide an explanation for each redaction that was made but instead requires the reasons for the exemptions for the whole record. The court summed up its ruling by stating that, “section 119.07(1)(e) plainly requires only record-by-record—not redaction-by-redaction—identification of the exemptions authorizing the redactions in each record.” Miami Herald Media Co., 198 So. 3d at 1146. Even though the court noted the Public Records Act should be interpreted broadly to encourage the policy of an open government, the courts must stop short of imposing its own policy or changing the plain language of the Public Records Act. If the court required the DOC to provide the statutory basis for each redaction line by line in a record, it would be adding obligations to the Public Records Act that are not in the plain language of the statute. The court conceded that there may be valid policy reasons for requiring the DOC to state the exemption for each redaction, but 2017] Recent Developments 787 the court does not have the authority to enforce that requirement, and it should be up to the Legislature to do so. Finally, the concurring opinion noted that the court’s ruling in this case should not exclude any future challenges to the identification of exemptions being claimed if the record-by-record approach allows the obligations in the Public Records Act to become effectively meaningless.
SIGNIFICANCE Miami Herald Media Co. clarifies that a government agency producing redacted documents pursuant to the Public Records Act need only identify which exemptions are being claimed in the entire document production request, not on a redaction-by- redaction basis.
RESEARCH REFERENCE 19A Fla. Jur. 2d Discovery and Depositions § 28 (WestlawNext through Sept. 2016).
Collin Mixon
Public Records & Meetings: Public Records Act Mootness
Cookston v. Office of the Public Defender, 204 So. 3d 480 (Fla. 5th Dist. Ct. App. 2016)
In cases involving a public records request, a court should determine whether the agency unduly delayed in producing public records, even if the agency has provided all of the requested records.
FACTS AND PROCEDURAL HISTORY Florida has a broad public records act which allows individuals to obtain documents from any state or local government agency by submitting a written request to that agency. Timothy Cookston was represented in a criminal case. After being sentenced to time in a state prison, Cookston began making public records requests for all emails between William Miller, his public defender, and the state attorney’s office regarding his case. Cookston mailed his first request to the Office of the Public Defender on August 3, 2015. Miller searched his email and mailed 788 Stetson Law Review [Vol. 46 copies of the emails to Cookston on August 11, 2015. Subsequently, Cookston mailed another letter on August 18, 2015 claiming that the public defender had not produced all of the documents in Cookston’s case and requested that Miller provide the rest of the emails. When Cookston did not receive any additional emails, he filed a petition for writ of mandamus on September 10, 2015. Miller then sent Cookston additional emails he had obtained from the Office of the Public Defender before he responded to Cookston’s petition. Because the records request had been filled, the circuit court in Marion County dismissed the petition for mootness. Cookston then moved for a rehearing, asserting that he should be awarded costs under Section 119.12, Florida Statutes. The trial court denied this motion, and Cookston appealed to the Fifth District Court of Appeals.
ANALYSIS The Fifth District began by analyzing whether Cookston’s case had been made moot upon delivery of all of the requested email records. A case becomes moot when there is no actual dispute or when the issues giving rise to the suit have been resolved. The court noted that a case is not moot when a collateral legal issue or matter of public importance remains. In the case at hand, the collateral legal issue of whether or not the delay in producing the records was unlawful remained even though the Office of the Public Defender had completed the records request. Pointing to its decision in Mazer v. Orange County, 811 So. 2d 857 (Fla. 5th Dist. Ct. App. 2002), the court reaffirmed that mere production of the requested public records does not render moot a discussion regarding a request for costs and fees. A court should still determine whether or not an agency was untimely in providing public records because “[t]he purpose of [Section 119.12] is to encourage public agencies to voluntarily comply with the requirements of Chapter 119, thereby ensuring that the state’s general policy is effectuated.” Cookston, 204 So. 3d at 483 (quoting Mazer, 811 So. 2d at 860). Because the trial court failed to conduct an analysis on whether the request was timely completed, the court reversed and remanded to the trial court to determine whether the Office of the Public Defender had violated the Public Records Act, and whether Cookston was entitled to an award of costs. 2017] Recent Developments 789
SIGNIFICANCE Cookston reinforces that state agencies need to promptly and fully comply with public records requests or they may continue to face financial penalties. Agency compliance with the Public Records Act continues to be on the minds of Florida lawmakers as legislation was proposed during the 2016 session that would have amended Section 119.12, Florida Statutes, to provide further clarity on when the courts should award costs and fees.
RESEARCH REFERENCES 44 Fla. Jur. 2d Records and Recording Acts § 142 (WestlawNext through Nov. 2016). S. 1220, 118th Leg., Reg. Sess. (Fla. 2016).
Hoyt L. Prindle III
Public Records & Meetings: Public Records Act Fees
Trout v. Bucher, 205 So. 3d 876 (Fla. 4th Dist. Ct. App. 2016)
Under the Public Records Act, the Supervisor of Elections (the Supervisor) is permitted to charge hourly rates for assistants who help with the inspection of records, as long as the fee is actually incurred by the agency.
FACTS AND PROCEDURAL HISTORY Michael Trout was a write-in candidate for the Florida’s 21st Congressional District. After the election was over, Trout submitted a request to inspect the official ballots. At the time of the request, there were 145,881 ballots cast throughout the District. The Supervisor responded by requesting a $189.21 deposit to cover the statutory fees associated with the first hour of producing the records for inspection. Trout would also have to pay hourly rates for the staff handling the request for each additional hour spent complying with the request: the Supervisor ($107.41 per hour), Assistant to the Supervisor ($27.87 per hour), and two Election Specialists ($26.77 and $27.16 per hour). Pursuant to Section 119.07(4)(d), Florida Statutes, (the Public Records Act), a 790 Stetson Law Review [Vol. 46 special service charge may be applied if responding to a records request requires extensive clerical or supervisory assistance. Further, the Public Records Act provides that no person is allowed to touch the ballots except the Supervisor. Trout refused to pay the $189.21 deposit and the hourly rates of the four people assisting with examining the ballots. Instead, he filed a lawsuit for the enforcement of the Public Records Act. Trout claimed the hourly rates were illegal because agencies can only charge fees based on reasonable expenses incurred by the agency and the rates must be based on the salary of the lowest-paid person who could do the work. Based on this, Trout sought a declaration by the court to reduce the hourly rate to $26.77 per person, or $107.08 per hour total. The court granted the Supervisor’s motion for summary judgment, noting that protecting ballots from being damaged or altered is extremely important to the public interest. Trout appealed to the Fourth District.
ANALYSIS The Fourth District focused its decision on one issue—whether the hourly rates quoted by the Supervisor were reasonable under the Public Records Act. The fees must be reasonable to preserve the right of access to government records that flows from the Public Records Act. Because of the large number of ballots, the court found it reasonable that the Supervisor obtain help from her assistants and held that the purpose of the special service charge is to ensure the person making the records request, rather than the taxpayers, bears the burden of paying any costs associated therewith. Trout argued that the Supervisor should not be able to charge more than the lowest hourly rate of an employee who is qualified to do the work. However, the court stated that adopting this argument would mean rewriting the Public Records Act. The court stated, “Trout would have us ignore the words ‘actually incurred . . . or attributable’ and insert language limiting a service charge to the lowest hourly rate of the employee capable of performing the work.” Trout, 205 So. 3d at 879. The court reinforced that it is not allowed to add words to a statute that the Legislature did not intend to add. 2017] Recent Developments 791
SIGNIFICANCE Trout holds that when assessing a special service charged under the Public Records Act, a government agency can charge the hourly rate of those employees actually performing the work in response to a public records request and does not need to limit the rate to that of the lowest-paid employee.
RESEARCH REFERENCE 44 Fla. Jur. 2d Records and Recording Act § 68 (WestlawNext through Feb. 2017).
Collin Mixon 792 Stetson Law Review [Vol. 46 2017] Recent Developments 793
TORT LIABILITY & GOVERNMENTAL IMMUNITY
Tort Liability & Governmental Immunity: Evidentiary Requirements
City of Miami v. Navarro, 187 So. 3d 292 (Fla. 3d Dist. Ct. App. 2016)
Photographs that are ambiguous regarding the passage of time must be supported by witness testimony in order to be admissible in a negligence suit against a municipality.
FACTS AND PROCEDURAL HISTORY Facunda S. Navarro was walking on a sidewalk in the City of Miami (the City). As she was walking, she tripped over a raised paver and was injured. Navarro sued the City for negligence. To support her claim, Navarro submitted a color photograph of the paver into evidence. There was no supporting evidence submitted to the court to illustrate how long the paver had been raised. The City filed a motion for directed verdict, claiming that the photograph was not legally sufficient to establish a prima facie case of negligence. In reviewing the photograph, the trial court determined that it was legally sufficient and denied the City’s motion, allowing the timing issue to be submitted to the jury. The City appealed the determination to the Third District Court of Appeal.
ANALYSIS The Third District focused solely on the issue of the legal sufficiency of the photograph. To demonstrate a prima facie case of negligence against a municipality, the plaintiff must show the municipality either had actual knowledge of the defect or should have known that the defect existed. In reviewing whether the photograph sufficiently illustrated that a period of time elapsed during which the municipality should have realized the defect existed, the court looked to the standard set out in Hannewacker v. City of Jacksonville Beach, 419 So. 2d 308 (Fla. 1982). In Hannewacker, the Florida Supreme Court outlined that when a photograph is ambiguous as to whether a significant amount of time has passed, live witness testimony must be provided. 794 Stetson Law Review [Vol. 46
In this case, the court determined that Navarro did not meet the Hannewacker standard. The court found that there was no evidence presented to show how much time had passed since the paver became raised. “In order to arrive at the decision that a significant time had passed, the jury would have had to speculate about the duration of the condition. Such speculation is not permitted under Hannewacker.” Navarro, 187 So. 3d at 293. Accordingly, the Third District reversed and remanded to the trial court so that a directed verdict could be entered for the City.
SIGNIFICANCE Navarro reaffirms that plaintiffs who sue municipalities for negligence must meet the minimum evidentiary requirements in order for their cases to proceed. Plaintiffs must produce live testimony where photographs are ambiguous in order to demonstrate constructive notice of defects.
RESEARCH REFERENCES 28 Fla. Jur. 2d Government Tort Liability § 86 (WestlawNext through Nov. 2016). 38 Fla. Jur. 2d Negligence § 179 (WestlawNext through Nov. 2016). 28A Fla. Jur. 2d Highways, Etc. § 153 (WestlawNext through Nov. 2016).
Hoyt L. Prindle III
Tort Liability & Governmental Immunity: Sovereign Immunity
Town of Gulf Stream v. Palm Beach County, 206 So. 3d 721 (Fla. 4th Dist. Ct. App. 2016)
Counties cannot charge municipalities for countywide corruption prevention programs without waiver, because deciding whether to fund such a program is a discretionary choice protected by the doctrine of sovereign immunity.
FACTS AND PROCEDURAL HISTORY Due to issues with government corruption, a grand jury convened and recommended establishing an Office of Inspector 2017] Recent Developments 795
General (the OIG), which would oversee and investigate governmental entities in Palm Beach County (the County). In 2010, the voters of the County, including a majority of voters within all thirty-eight municipalities in the County, approved a referendum to amend the County Charter to create the OIG with authority over the County and all municipalities in which the referendum passed. The referendum provided that the County, and all governmental entities under the OIG’s authority, would fund the OIG program. After passage of the referendum, the County adopted an ordinance implementing the program and sought funding from the thirty-eight municipalities. Numerous municipalities refused to pay, claiming that the demand for funding violated sovereign immunity and was an illegal tax. There was evidence that the public believed the program would be funded by vendor fees. In 2011, fifteen municipalities sued the County, seeking a declaratory judgment that the municipalities did not have to pay for the OIG program. The trial court ruled for the County, holding that the charges were not prohibited by sovereign immunity and did not constitute an unlawful tax. After the trial court denied the municipalities’ motion for rehearing, the municipalities appealed, claiming that sovereign immunity protected them from the charges and they had not waived such immunity.
ANALYSIS The Fourth District began by noting that issues of sovereign immunity are subject to de novo review. Sovereign immunity protects the government from lawsuits and certain actions, unless there has been a clear waiver. Historically, municipalities enjoyed a less robust form of sovereign immunity than states. However, the Florida Supreme Court has now made clear that sovereign immunity should be equally applied to all governmental entities. Discretionary governmental actions are protected by sovereign immunity, but operational actions are not. Discretionary actions are those that require basic policy decisions, including budgetary considerations and the decision to allocate resources. Further, charter referendum provisions generally do not apply to resource appropriation. Sovereign immunity can only be waived by general law or express contract. Local law cannot waive city or county sovereign immunity. However, Section 125.0101, Florida 796 Stetson Law Review [Vol. 46
Statutes, allows counties to contract with municipalities for services, creating a sovereign immunity waiver. The court ruled that sovereign immunity prohibited the County from demanding that the municipalities pay for the OIG program in this instance because there was no waiver of sovereign immunity by general law, and the governing bodies of the municipalities had not entered into agreements with the County that would have waived their sovereign immunity. The choice of whether to fund the OIG involved “the allocation of resources and budget management, which is quintessentially a discretionary, planning-level decision that is shielded by sovereign immunity.” Gulf Stream, 206 So. 3d at 726. The referendum did not otherwise transform this discretionary decision into an operational action. Further, the referendum did not constitute a contract because only municipal governing bodies—not voters—have the authority to contract on behalf of a municipality. Finally, the referendum did not include material terms, such as program costs, necessary to create a binding contract. In conclusion, the Fourth District held that the municipalities were protected from the program fees by sovereign immunity and that the municipalities did not waive this immunity. Accordingly, the court reversed and remanded the case for declaratory judgment to be entered for the municipalities. However, because the case could affect how counties and municipalities interact statewide, the court certified a question to the Florida Supreme Court: whether sovereign immunity prohibits a county from demanding payment from municipalities for an inspector general program created by a referendum and ordinance that state that funding shall come from the given county and the governmental entities under the inspector general’s authority.
SIGNIFICANCE Gulf Stream illustrates that a municipality’s decision whether to provide funding for a corruption prevention program is a discretionary budgetary judgment protected by sovereign immunity. The case also shows that voters cannot enter into immunity-waiving contracts on behalf of municipalities by way of referendum. 2017] Recent Developments 797
RESEARCH REFERENCE 48A Fla. Jur. 2d State of Florida § 336 (WestlawNext through Feb. 2017).
Joseph Ruppel