Record on Appeal from the Circuit Court of Leon County, Florida Honorable John C

Filing # 113119892 E-Filed 09/10/2020 08:01:36 AM

IN THE DISTRICT COURT OF APPEAL OF FLORIDA FIRST DISTRICT

CASE NO: 2019 CA 002215

DCA NO: 1D20-2135

1000 FRIENDS OF FLORIDA, INC. AND ROBERT J. HOWELL

APPELLANTS,

THE STATE OF FLORIDA, LAUREL M. LEE, IN HER OFFICIAL CAPACITY AS SECRETARY OF STATE OF FLORIDA, AND KEN LAWSON, IN HIS OFFICIAL CAPACITY AS THE EXECUTIVE DIRECTOR OF THE FLORIDA DEPARTMENT ETC.

APPELLEES, RECORD ON APPEAL FROM THE CIRCUIT COURT OF LEON COUNTY, FLORIDA HONORABLE JOHN C. COOPER

JANE WEST, ESQ MARK BUCKLES, IGC 24 CATHEDRAL PLACE, SUITE 504 REBEKAH DAVIS, AGC ST. AUGUSTINE, FL 32084 JON MORRIS, AGC OFFICE OF THE GENERAL COUNSEL TERRELL K. ARLINE, ESQ DEPARTMENT OF ECONOMIC OPPORTUNITY 1819 TAMIAMI DRIVE 107 E. MADISON STREET, MSC 110 TALLAHASSEE, FL 32301 TALLAHASSEE, FL 32399

RICHARD GROSSO, ESQ 6919 W. BROWARD BOULEVARD RECEIVED, 09/10/2020 08:02:35 AM, Clerk, First District Court of Appeal PLANTATION, FL 33317

JOSEPH W. LITTLE, ESQ 3731 NW 13TH PLACE GAINESVILLE, FL 32605

ATTORNEY(S) FOR APPELLANT(S) ATTORNEY(S) FOR APPELLEE(S) 1000 FRIENDS OF FLORIDA INC vs. LAUREL M LEE LT. CASE NO: 2019 CA 002215 HT. CASE NO: 1D20-2135

SEPTEMBER 13, 2019 COMPLAINT 007 - 020

OCTOBER 01, 2019 RETURN OF SERVICE EXECUTED - KEN LAWSON 021

OCTOBER 21, 2019 SECRETARY LEE'S MOTION TO DISMISS WITH 022 - 028 PREJUDICE

NOVEMBER 01, 2019 DEFENDANT, KEN LAWSON'S, MOTION TO DISMISS 029 - 052 PLAINTIFF, 1000 FRIENDS OF FLORIDA, INC.'S, COMPLAINT WITH PREJUDICE, AND ALTERNATIVE MOTION TO DISMISS COUNTS I AND II OF PLAINTIFF'S COMPLAINT

JANUARY 29, 2020 AMENDED COMPLAINT FOR DECLARATORY AND 053 - 090 INJUNCTIVE RELIEF

FEBRUARY 28, 2020 DEFENDANT, KEN LAWSON'S, MOTION TO DISMISS 091 - 118 PLAINTIFFS', 1000 FRIENDS OF FLORIDA, INC. AND ROBERT J. HOWELL'S, AMENDED COMPLAINT WITH PREJUDICE, AND ALTERNATIVE MOTION TO DISMISS COUNTS I, II, AND III OF PLAINTIFFS' AMENDED COMPLAINT

FEBRUARY 28, 2020 SECRETARY LEE'S MOTION TO DISMISS AMENDED 119 - 125 COMPLAINT WITH PREJUDICE

MAY 26, 2020 PLAINTIFFS' MEMORANDUM IN OPPOSITION TO 126 - 137 DEFENDANTS' MOTIONS TO DISMISS

JUNE 01, 2020 PLAINTIFFS' SUPPLEMENTAL MEMORANDUM IN 138 - 149 OPPOSITION TO DEFENDANTS' MOTIONS TO DISMISS

JUNE 18, 2020 FINAL ORDER GRANTING DEFENDANT KEN 150 - 152 LAWSON'S MOTION TO DISMISS PLAINTIFFS' AMENDED COMPLAINT WITH PREJUDICE - Recorded (OR 5456.656 / 20200034164)

JUNE 18, 2020 FINAL ORDER OF DISMISSAL AS TO SECRETARY OF 153 - 154 STATE LAUREL M LEE - Recorded (OR 5456.659 / 20200034165)

JUNE 19, 2020 SECOND COPY OF FINAL ORDER OF DISMISSAL AS 155 - 156 TO SECRETARY OF STATE LAUREL M LEE

JUNE 19, 2020 SECOND COPY OF FINAL ORDER GRANTING 157 - 159 DEFENDANT KEN LAWSON'S MOTION TO DISMISS PLAINTIFFS' AMENDED COMPLAINT WITH 1000 FRIENDS OF FLORIDA INC vs. LAUREL M LEE LT. CASE NO: 2019 CA 002215 HT. CASE NO: 1D20-2135

PREJUDICE

JULY 17, 2020 NOTICE OF APPEAL - Recorded (OR 5467.541 / 160 - 165 20200040499)

JULY 24, 2020 AMENDED NOTICE OF APPEAL - Recorded (OR 166 - 171 5469.2353 / 20200042185)

AUGUST 06, 2020 DESIGNATION TO COURT REPORTER 172 - 175

AUGUST 21, 2020 TRANSCRIPT OF VIDEO-TELECONFERENCE 176 - 253 PROCEEDINGS - JUNE 3, 2020

AUGUST 27, 2020 CERTIFICATE OF CLERK 254

Progress Docket for Case : 2019 CA 002215 1000 FRIENDS OF FLORIDA INC vs. STATE OF FLORIDA RONALD DESANTIS IN HIS CAPACITY AS GOVERNOR OF THE STATE OF FLORIDA

Date Docket Description/Text August 27, 2020 CERTIFICATE OF CLERK August 21, 2020 TRANSCRIPT OF VIDEO-TELECONFERENCE PROCEEDINGS - JUNE 3, 2020 DESIGNATION TO COURT REPORTER August 19, 2020 DESIGNATION TO COURT REPORTER August 12, 2020 PAYMENT $100.00 RECEIPT #1523435 August 06, 2020 DESIGNATION TO COURT REPORTER July 28, 2020 EMAIL SENT TO APPEALS RE SERVICE OF COURT DOCUMENT – 2019 CA 002215, 1000 FRIENDS OF FLORIDA INC VS. STATE OF FLORIDA RONALD DESANTIS IN HIS CAPACITY AS GOVERNOR OF THE STATE OF FLORIDA WITH 1 ATTACHMENTS: ANOA-7/24/2020 July 26, 2020 CASE CLOSED 30 DAYS – PER RJA 2.505(F) DEACTIVATE ATTORNEY for ATT JOSEPH LITTLE on 07/26/2020 CASE CLOSED 30 DAYS – PER RJA 2.505(F) DEACTIVATE ATTORNEY for ATT TERRELL ARLINE on 07/26/2020 CASE CLOSED 30 DAYS – PER RJA 2.505(F) DEACTIVATE ATTORNEY for ATT JANE WEST on 07/26/2020 CASE CLOSED 30 DAYS – PER RJA 2.505(F) DEACTIVATE ATTORNEY for ATT RICHARD GROSSO on 07/26/2020 CASE CLOSED 30 DAYS – PER RJA 2.505(F) DEACTIVATE ATTORNEY for ATT JOSEPH LITTLE on 07/26/2020 CASE CLOSED 30 DAYS – PER RJA 2.505(F) DEACTIVATE ATTORNEY for ATT TERRELL ARLINE on 07/26/2020 CASE CLOSED 30 DAYS – PER RJA 2.505(F) DEACTIVATE ATTORNEY for ATT JANE WEST on 07/26/2020 July 24, 2020 AMENDED NOTICE OF APPEAL - Recorded (OR 5469.2353 / 20200042185) July 22, 2020 DCA CASE NUMBER - 1D20-2135 CERTIFIED COPY OF NOTICE OF APPEAL E-FILED TO DCA July 21, 2020 EMAIL SENT TO WEST, JANE RE SERVICE OF COURT DOCUMENT – 2019 CA 002215, 1000 FRIENDS OF FLORIDA INC VS. STATE OF FLORIDA RONALD DESANTIS IN HIS CAPACITY AS GOVERNOR OF THE STATE OF FLORIDA WITH 1 ATTACHMENTS: CFLL-7/21/2020 CIVIL FEE LATE LETTER EMAIL SENT TO APPEALS RE SERVICE OF COURT DOCUMENT – 2019 CA 002215, 1000 FRIENDS OF FLORIDA INC VS. STATE OF FLORIDA RONALD DESANTIS IN HIS CAPACITY AS GOVERNOR OF THE STATE OF FLORIDA WITH 1 ATTACHMENTS: NOAP-7/17/2020 July 19, 2020 CASE CLOSED 30 DAYS – PER RJA 2.505(F) DEACTIVATE ATTORNEY for ATT JON MORRIS on 07/19/2020 CASE CLOSED 30 DAYS – PER RJA 2.505(F) DEACTIVATE ATTORNEY for ATT REBEKAH DAVIS on 07/19/2020 CASE CLOSED 30 DAYS – PER RJA 2.505(F) DEACTIVATE ATTORNEY for ATT WILLIAM CHORBA on 07/19/2020 CASE CLOSED 30 DAYS – PER RJA 2.505(F) DEACTIVATE ATTORNEY for ATT WILLIAM CHORBA on 07/19/2020 CASE CLOSED 30 DAYS – PER RJA 2.505(F) DEACTIVATE ATTORNEY for ATT MARK BUCKLES on 07/19/2020 CASE CLOSED 30 DAYS – PER RJA 2.505(F) DEACTIVATE ATTORNEY for ATT REBEKAH DAVIS on 07/19/2020 CASE CLOSED 30 DAYS – PER RJA 2.505(F) DEACTIVATE ATTORNEY for ATT MARK BUCKLES on 07/19/2020 CASE CLOSED 30 DAYS – PER RJA 2.505(F) DEACTIVATE ATTORNEY for ATT

Progress Docket for Case : 2019 CA 002215 1000 FRIENDS OF FLORIDA INC vs. STATE OF FLORIDA RONALD DESANTIS IN HIS CAPACITY AS GOVERNOR OF THE STATE OF FLORIDA

Date Docket Description/Text BRADLEY MCVAY on 07/19/2020 CASE CLOSED 30 DAYS – PER RJA 2.505(F) DEACTIVATE ATTORNEY for ATT ASHLEY DAVIS on 07/19/2020 CASE CLOSED 30 DAYS – PER RJA 2.505(F) DEACTIVATE ATTORNEY for ATT JANE WEST on 07/19/2020 July 17, 2020 NOTICE OF APPEAL - Recorded (OR 5467.541 / 20200040499) July 02, 2020 INSTRUCTIONS FROM JUDGE - JUDGE COOPER SAID THIS SHOULD BE CLOSED. ALL PARTIES HAVE BEEN DISMISSED June 19, 2020 SECOND COPY OF FINAL ORDER GRANTING DEFENDANT KEN LAWSON'S MOTION TO DISMISS PLAINTIFFS' AMENDED COMPLAINT WITH PREJUDICE SECOND COPY OF FINAL ORDER OF DISMISSAL AS TO SECRETARY OF STATE LAUREL M LEE June 18, 2020 FINAL ORDER OF DISMISSAL AS TO SECRETARY OF STATE LAUREL M LEE - Recorded (OR 5456.659 / 20200034165) FINAL ORDER GRANTING DEFENDANT KEN LAWSON'S MOTION TO DISMISS PLAINTIFFS' AMENDED COMPLAINT WITH PREJUDICE - Recorded (OR 5456.656 / 20200034164) June 02, 2020 SECRETARY LEE'S REQUEST FOR JUDICIAL NOTICE NOTICE OF APPEARANCE AND DESIGNATION OF EMAIL ADDRESSES June 01, 2020 PLAINTIFFS' SUPPLEMENTAL MEMORANDUM IN OPPOSITION TO DEFENDANTS' MOTIONS TO DISMISS May 28, 2020 NOTICE OF ZOOM HEARING May 26, 2020 PLAINTIFFS' MEMORANDUM IN OPPOSITION TO DEFENDANTS' MOTIONS TO DISMISS May 11, 2020 AMENDED NOTICE OF HEARING March 08, 2020 HEARING SET FOR 06/03/2020 AT 10:00 AM IN 365B, JDG: COOPER, JOHN C March 04, 2020 NOTICE OF HEARING February 28, SECRETARY LEE'S MOTION TO DISMISS AMENDED COMPLAINT WITH 2020 PREJUDICE DEFENDANT, KEN LAWSON'S, MOTION TO DISMISS PLAINTIFFS', 1000 FRIENDS OF FLORIDA, INC. AND ROBERT J. HOWELL'S, AMENDED COMPLAINT WITH PREJUDICE, AND ALTERNATIVE MOTION TO DISMISS COUNTS I, II, AND III OF PLAINTIFFS' AMENDED COMPLAINT January 30, 2020 NOTICE OF CANCELLATION OF HEARING January 29, 2020 AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF December 13, CROSS NOTICE OF HEARING 2019 December 04, MOTION HEARING SET FOR 02/03/2020 AT 10:00 AM IN 365B, JDG: COOPER, 2019 JOHN C December 02, AMENDED NOTICE OF HEARING 2019 NOTICE OF HEARING November 04, NOTICE OF APPEARANCE 2019 November 01, DEFENDANT, KEN LAWSON'S, MOTION TO DISMISS PLAINTIFF, 1000 FRIENDS 2019 OF FLORIDA, INC.'S, COMPLAINT WITH PREJUDICE, AND ALTERNATIVE MOTION TO DISMISS COUNTS I AND II OF PLAINTIFF'S COMPLAINT October 21, 2019 SECRETARY LEE'S MOTION TO DISMISS WITH PREJUDICE October 01, 2019 RETURN OF SERVICE EXECUTED - L LEE RETURN OF SERVICE EXECUTED - KEN LAWSON September 18, PAYMENT $420.00 RECEIPT #1459437

Progress Docket for Case : 2019 CA 002215 1000 FRIENDS OF FLORIDA INC vs. STATE OF FLORIDA RONALD DESANTIS IN HIS CAPACITY AS GOVERNOR OF THE STATE OF FLORIDA

Date Docket Description/Text 2019 JUDGE COOPER, JOHN C: ASSIGNED September 13, COMPLAINT 2019 SUMMONS ISSUED SUMMONS ISSUED CIVIL COVER SHEET

10001000 FRIENDSFRIENDS OF FLORIDA INC vs. LAUREL M LEELEE LT. CASE NO: 2019 CACA 002215002215 HT. CASE NO: 1D20-21351D20-2135

Filing # 95640923 E -Filed 09/13/2019 08:12:39 AM

IN THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT IN AND FOR LEON COUNTY, FLORIDA

1000 FRIENDS OF FLORIDA, iNC., a Florida not for Profit Corporation;

Plaintiff, 2019 CA 002215 V. Case No.:

THE STATE OF FLORIDA, LAUREL M. LEE, in her Official Capacity as Secretary of State of Florida, and KEN LAWSON, in hisOfficial Capacity as the Executive Director of the Florida Department of Economic Opportunity;

Defendants.

COMES NOW the Plaintiff, 1000 FRIENDS OF FLORIDA, iNC. ("1000 Friends") by and

through undersigned counsel and hereby sues THE STATE OF FLORIDA, LAUREL M. LEE, in

her Official Capacity as Secretary of State of Florida and KEN LAWSON, in his Official Capacity

as the Executive Director of the Florida Department of Economic Opportunity, and states as

follows:

INTRODUCTION

On May 3, 2019, the Florida Legislature passed the "An act relating to community

development and housing" as CS/CS/HB 7103, enacted as Chapter 20 19-165, Laws of Florida.

2. Chapter 20 19-165, Laws of Florida is hereinafter referred to as "the Law." A copy

of the Law is attached as Exhibit A.

10001000 FRIENDSFRIENDS OF FLORIDA INC vs. LAUREL M LEELEE LT. CASE NO: 2019 CACA 002215002215 HT. CASE NO: 1D20-21351D20-2135

3. The Law amends various unrelated provisions of current law running the gamut from community planning, land development regulations,affordable housing, and even condominium fire safety requirements.

4. Notably, at 12:10 P.M. on May 3, 2019-the last scheduled day of the 2019

Legislative Session-an amendment to the Bill was submitted to amend Section 163.3215 (8)(c),

Florida Statutes to add the following provision:

The prevailing party in a challenge to a development order under subsection (3) is entitled to recover reasonable attorney fees and costs incurred in challenging or defending the order, including reasonable appellate attorney fees and costs.

5. Previously, Section 163.3215, Florida Statutes, entitled "Standing to enforce local comprehensive plans through development orders" ("the Consistency Challenge Statute") did not subject non -prevailing parties to the sanction of being required to pay prevailing party attorney fees simply for failing to prevail on a good-faith claim with a valid basis in fact and law.

6. The Consistency Challenge Statute is the sole mechanism under which citizens in

Florida can challenge development orders approved by their local government that are not

"consistent" with the local government's Comprehensive Plan.i Section 163.3215 (1), Fla. Stat.

(2019). For example, in Pinecrest Lakes, Inc. v. Shidel, 795 So. 2d 191, 200 (Fla. 4th DCA 2001), rev, den. 821 So. 2d 300 (Fla. 2002), the court observed that "citizen enforcement [under the

Consistency Challenge Statute] is the primary tool for insuring consistency of development decisions with the Comprehensive Plan." 795 So.2d at 202.

1 163.3194Legal status of comprehensive plan. (1)(a)Afier a comprehensive plan, or element or portion thereof has been adopted in conformity with this act, all development undertaken by, and all aetian' taken in regard to development orders by, governmental agencies in regard to land covered by such plan or element shall he consistent with such plan or element as adopted. (Emphasis added.)

10001000 FRIENDSFRIENDS OF FLORIDA INC vs. LAUREL M LEELEE LT. CASE NO: 2019 CACA 002215002215 HT. CASE NO: 1D20-21351D20-2135

7. The intent of the Community Planning Act that was amended by the Bill is "that adopted comprehensive plans shall have the legal status set out in this act and that no public or private development shall be permitted except in conformity with comprehensive pians, or elements or portions thereof, prepared and adopted in conformity with this act." Section 163.3 161

(6), Fla. Stat. The Act mandates that all local governments adopt and maintain a comprehensive plan to govern future land development. § 163.3 167(1)(b); § 163.3 167(2).

8. The Act strictly prohibits approval of a development order that is inconsistent with a comprehensive plan. §163.3 161(5), 163.3 184(7), 163.3 194(1)(a), Fla. Stat.This prohibition fulfills the express legislative "intent of thej act that adopted comprehensive plans shall have the legal status set out in this act and that no public or private development shall be permitted except in conformity with comprehensive plans, or elements or portions thereof...." §

163.3 161(6), Fla. Stat. (emphasis added). The Bill does not change this intent.

9. Florida courts have interpreted these statutory provisions to establish the legislative intent and scheme that a "comprehensive plan is... aconstitution for all future development ...."

Machado v. Musgrove, 519 So.2d 629, 631 (Fla. 3d DCA 1987).

10. To effectuate this intent, Section 163.3215(2), Fia.Stat., grants standing to challenge development orders for inconsistency with adopted comprehensive plans to:

"any person ...that will suffer an adverse effect to an interest protected or furthered by the...comprehensive plan, including interests related to health and safety, police and fire protection service systems, densities or intensities of development, transportation facilities, health care facilities, equipment or services, and environmental or natural resources."

11. This statutory grant of standing has been interpreted to grant "significantly enhanced standing to challenge the consistency of development decisions with the Comprehensive

Plan" compared with prior standing law. Pinecrest Lakes, Inc., v. Shidel, 795 So. 2d 191, 197 (Fla.

10001000 FRIENDSFRIENDS OF FLORIDA INC vs. LAUREL M LEELEE LT. CASE NO: 2019 CACA 002215002215 HT. CASE NO: 1D20-21351D20-2135

4th DCA 2001), review denied, 821 So. 2d 300 (Fla. 2002).Also, because of the remedial nature of the Act, the legislative intent, unchanged by the Bill, mandates that it is to be "construed broadly to accomplish its stated purposes and objectives." Section 163.3 194(4)(b), Fla. Stat.

(emphasis added); See, Education Development Centet; Inc. v. Palm Beach County, et al., 751

So.2d 621, 623 (Fla. 4th DCA 1999) (holding that § 163.3215 is a remedial statute and should thus be liberally construed to advance the intended remedy.)

12. While interpreting and enforcing that intent, the Florida Supreme Court established a "strict scrutiny" standard of judicial review that requires a strict showing by the proponent of a development order that fully complies of a comprehensive plan. Board of County Commissioners ofBrevard County v. Snyder, 627 So.2d 469, 475-476 (Fla. 1993). Courts have noted that "the clear legislative intent to mandate intelligent, uniform growth management... cannot beachieved without meaningful review in lawsuits brought under the Act,"Southwest Ranches

Homeowners Assoc., Inc. v. County of Broward, 502 So.2d 931, 936 (Fla. 4th DCA 1987)

(emphasis added).

13. The prevailing party attorney fee provision in the Law completely undermines the intent, purpose and rationale of the Act (none of which the Law has amended) by chilling, frustrating, and punishing the ability of locally affected citizens to challenge local government decisions that are not consistent with the local Comprehensive Plan.

14. This action challenges the constitutionality of the Law based on the "single subject rule" set forth in Article III, Section 6, Florida Constitution, which states:

Laws. Every law shall embrace but one subject and matter properly connected therewith, and the subject shall be briefly expressed in the title. No law shall be revised or amended by reference to its title only. Laws to revise or amend shall set out infullthe revised or amended act, section, subsection or paragraph of a subsection. The enacting clause of every law shall read: "Be It Enacted by the Legislature of the State ofFlorida:"

10001000 FRIENDSFRIENDS OF FLORIDA INC vs. LAUREL M LEELEE LT. CASE NO: 2019 CACA 002215002215 HT. CASE NO: 1D20-21351D20-2135

15. This action also challenges the constitutionality of the Law based on the substantive due process clause set forth in Article I, Section 9 of the Florida Constitution ("Due Process"),

Florida Constitution.

16. Plaintiff seeks declaratory and injunctive relief to invalidate the Law in order to prevent its egregious chilling effect on Florida citizens' ability to enforce the local Comprehensive

Plan through the Consistency Challenge Statute, and to prevent the Law from undermining the intent of the Act by punishing the very enforcement of the comprehensive plan consistency mandate the Act otherwise contemplates.

JURISDICTION AND VENUE

17. This is an action for declaratory judgment, injunction and other appropriate relief.

18. This Court has jurisdiction pursuant to Article V § 5(b) Florida Constitution and

Chapter 60 and Chapter 86, Florida Statutes.

19. Venue is appropriate in this Court because it sits within the physical jurisdiction of the Defendants' primary offices.

PARTIES

20. Plaintiff,1000 FRIENDS OF FLORIDA, INC. isa Florida not -for-profit corporation with its principal place of business at 308 North Monroe Street, Tallahassee, Florida

("1000 Friends").1000 Friends is a membership -based organization with approximately 3,054 members throughout Florida. The organization was established in 1986 for the purpose of monitoring and ensuring the proper implementation of Florida's growth management laws, representing the interests of its members, and providing education and support for public participation in growth management. Since its founding, 1000 Friends has participated extensively

10001000 FRIENDSFRIENDS OF FLORIDA INC vs. LAUREL M LEELEE LT. CASE NO: 2019 CACA 002215002215 HT. CASE NO: 1D20-21351D20-2135

in growth management, land use, and environmental regulatory issues impacting the natural resources in Florida.Over the years, 1000 Friends has brought cases under the Consistency

Challenge Statute and supported citizens and local governments in such cases to further the comprehensive planning process.2

21. Defendant, LAUREL M. LEE is the Secretary of State of Florida.

22. Defendant LAIJREL M. LEE is the official custodian of the laws of the state and the official with authority to expunge an unconstitutional statute upon order of a court. Sec. 15.02

Fla. Stat. (2019).

23. Defendant, KEN LAWSON, is the Executive Director of Department of Economic

Opportunity, and is the head of the executive agency that is the state land planning agency that administers Chapter 163, Florida Statutes, portions of which are challenged as unconstitutional in this action. See Sections 163.3164(20), 163.3 184(6), Florida Statutes (2019).

FACTS

24. Section 7 of the Law, provides in part:

(c) The prevailing party in a challenge to a development order filed under subsection (3) is entitled to recover reasonable attorney fres and costs incurred in challenging or defending the order, including reasonable appellate attorney fees and costs.

25. This provision makes it economically infeasible for 1000 Friends and its individual members to challenge developments orders that are inconsistent with a local government's

Comprehensive Plan, and unreasonably chills the ability of 1000 Friends to implement its

2 For example, see Minto PBLH, LLC v. 1000 Friends of Fla., Inc., (Fla. 4thDCA2017); Poulos v. Martin County, 700 So. 2d 163 (Fla. 4thDCA1997); 1000 Friends of Fla. v. St. Johns County, 765 So. 2d 216 (Fla. 5th DCA2000), Putnam County Envtl. Council, Inc. v. Board of County Comm rs, 757 So. 2d 590 (5thDCA2000); and Pinecrest Lakes, Inc. v. Shidel, 795 So. 2d 191 (Fla. 4tsDCA2001), rev, den. 821 So. 2d 300 (Fla. 2002); PinecrestLakes, Inc. et al, v. Shidel, 795 So. 2d 191 (Fla. 4thDCA2001); andBd. of County Comm'Rs v. Snyder, 627 So. 2d 469 (Fla. 1993).

10001000 FRIENDSFRIENDS OF FLORIDA INC vs. LAUREL M LEELEE LT. CASE NO: 2019 CACA 002215002215 HT. CASE NO: 1D20-21351D20-2135

corporate purposes to further comprehensive planning in Florida through litigation under Section

163.32 15, Florida Statutes.

26. The Law contains no less than seventeen (17) separate various substantive sections, set forth as follows:

a.Section 1 amended Section 125.0 1055 pertaining to affordable housing. b.Section 2 amended Section 125.022 pertaining to procedures for approving development orders. c.Section 3 amended Section 163.3 167(3) pertaining to the effect of comprehensive plans to impair existing development orders. d.Section 4 amended Section 163.3 180(6) pertaining to impact fees and development orders. e.Section 5 amended Section 163.3 1801 pertaining to limitations on the amounts and uses of impact fees.

f. Section 6 amended 163.3202(2) to add this provision: () Incorporate preexisting development orders identified pursuant to s. 163.3167(3).

g.Section 7 amended Section 163.3215(8) to add inter alia this provision: The prevailing party in a challenge to a development order flied under subsection (3) is entitled to recover reasonable attorney fees and costs incurred in challenging or defending the order, including reasonable appellate attorney fees and costs. h.Section 8 amended Section 166.033 pertainingtothe time allotted municipalities to review development permits or development orders. i. Section 9 amended Section 166.0415 1pertaining to the obligation of municipalities to assist in providing affordable housing.

j. Section 10 amended Section 420.502 to create a state finance strategy to provide affordable workforce housing opportunities for some persons in areas of critical state concern. k.Section 11 amended Section 420.503 to redesignate subsections and to define "essential services personnel."

10001000 FRIENDSFRIENDS OF FLORIDA INC vs. LAUREL M LEELEE LT. CASE NO: 2019 CACA 002215002215 HT. CASE NO: 1D20-21351D20-2135

1. Section 12 amended Section 420.5095(3) to delete a definition of "essential services personnel." m. Section 13 amended Section 252.363 to amend the effect of a Governor's issuance of a state of emergency on the limitation periods on rights under permits and other authorization. n.Section 14 amended Section 553.791 pertaining to the process of local government review of plans review and inspection including a limitation on the authority to charge an inspection fee if the developer provides a private provider. o.Section 15 amended Section 718.112 to require bylaws of condominium associations to include a fire safety provision that complies with the Florida Fire Prevention Code. p.Section 16 amended Section 718.1085 to delete "individual balconies" from the definition of commons areas in a provision pertaining to condominium associations and fire safety obligations. q.Section 17 directed the State Fire Marshall to "issue a data call to all local fire officials to collect data" pertaining to certain high-rise condominiums and submit the report to the Governor, the President of the Senate, and the President of the House of Representatives by September 1, 2020.

27. The Plaintiff has a genuine and current dispute with Defendants, is in doubt as to its rights, and requires a judgment of this Court to declare them and provide temporary and permanent injunctive relief and! or other appropriate relief.

28. Plaintiff faces an imminent threat of harm as a result of the prevailing party attorney fee provision in the Law.

29. If allowed to go into effect, the Law will cause ineparable injury to Plaintiff.

30. Plaintiff has no plain, speedy, and adequate remedy at law against the Law other than the relief requested in this Complaint.

10001000 FRIENDSFRIENDS OF FLORIDA INC vs. LAUREL M LEELEE LT. CASE NO: 2019 CACA 002215002215 HT. CASE NO: 1D20-21351D20-2135

31. All conditions precedent to bringing this action have been satisfied including serving a copy of this complaint upon the Florida Attorney General pursuant to the requirements of Section 86.011 Florida Statutes and the Florida Rules of Civil Procedure.

COUNT I: DECLARATORY AND INJUNCTIVE RELIEF THE LAW VIOLATES OF ARTICLE III, SECTION 6, FLORIDA CONSTITUTION SINGLE SUBJECT REQUIREMENT

32. Plaintiff realleges and incorporates the allegations in paragraphs 1 - 31 above.

33. This is an action for a declaratory judgment and for temporary and permanent injunctive relief pursuant to Chapter 60, Florida Statutes and Chapter 86, Florida Statutes.

34. Chapter 2019-165, Laws of Fla. violates Article III, Section 6 of the Florida

Constitution ("Single Subject Requirement") because the Law contains more than a single subject.

35. The matters addressed by the Law are separate, dissociated, and unrelated to any discemable legislative intent to implement comprehensive legislation to address a single problem or issue.

36. There is no logical relationship or oneness of purpose between and of, inter alia, the Law's provisions regarding local development orders, a state housing finance strategy for areas of critical state concern, deadlines for compliance of existing condominiums with fire safety rules, tolling state environmental permit expiration periods during natural emergencies, building inspection fees, provisions related to the approval of new development by local governments, the definition of the term "common areas" in condominium association bylaws, and non -prevailing party attorneys' fees sanctions in local government development order litigation.

37. Plaintiff is entitled to declaratory, temporary, and permanent injunctive relief to invalidate the Law as a violation of the Single Subject Requirement.

10001000 FRIENDSFRIENDS OF FLORIDA INC vs. LAUREL M LEELEE LT. CASE NO: 2019 CACA 002215002215 HT. CASE NO: 1D20-21351D20-2135

WHEREFORE, for all of the reasons above, Plaintiff asks that the Court:

A. Declare that the Law is unconstitutional as a violation of the Single Subject

Requirement of Art. III, Section 6, Florida Constitution.

B. Enter Temporary and Permanent Injunctive relief to order the Defendants LAUREL

M. LEE, as Secretary of State, and the STATE OF FLORIDA to expunge the Law from the Laws of Florida and prohibit the further codification of the Law into statute, and enjoin Defendant, KEN

LAWSON, from implementing the Law.

C. Award costs of this action to Plaintiff; and

D. Grant Plaintiff such other and further relief as the Court may deem just, proper, and necessary.

COUNT 2: DECLARATORY AND INJUNCTIVE RELIEF SECTION 7, SUBSECTION (8)( c), Ch. 2019-165, LawsofFla. VIOLATES ART. I, SECTION 9, FLORIDA CONSTITUTION SUBSTANTIVE DUE PROCESS

38. Plaintiff realleges and incorporates the allegations in paragraphs 1 37 above.

39. This is an action for a declaratory judgment and for temporary and permanent injunctive relief pursuant to Chapter 60, Florida Statutes and Chapter 86, Florida Statutes.

40. The Community Planning Act, Chapter 163, Part II, Florida Statutes ("Act") mandates that all local governments adopt and maintain a comprehensive plan to guide future land development.3

41. Further, it is the Act's express intent "that adopted comprehensive plans shall have the legal status set out in this act and that no public or private development shall be permitted except in conformity with comprehensive plans, or elements or portions thereof. ." 4

3 Sections 163.3 167(1)(b), Florida Statutes and 163.3 167(2), Florida Statutes. 4Section 163.3161(6), Florida Statutes.

10001000 FRIENDSFRIENDS OF FLORIDA INC vs. LAUREL M LEELEE LT. CASE NO: 2019 CACA 002215002215 HT. CASE NO: 1D20-21351D20-2135

42. The Act strictly prohibits the approval of a development order that is inconsistent with a Comprehensive Plan. The law states:

1 63 .3194 Legal statusofcomprehensive plan.-(1)('a,)Aftera comprehensive plan, or element or portion thereof has been adopted..., all development undertaken by, and all actions taken in regard to development orders... in regard to land covered by such plan or element shall he consistent with such plan or element as adopted. (Emphasis added). 5

43. Under the Act, comprehensive plans are to be enforced only by local citizens, iwl by the state. (emphasis added) Section 163.3215, Florida Statutes provides the only mechanism to challenge development orders that are inconsistent with comprehensive plans and places the burden of enforcement on citizens.See, Pinecrest Lakes, 795 So. 2d at 191; Bd.ofTr.ofthe

Internal Improvement Trust Fund v. Seminole County Bd.ofCounty Comm 'rs., 623 So. 2d 593

(Fla. 5th DCA 1993), rev, den. 634 So. 2d 622 (1994).6Under Chapter 163, Laws of Fla., comprehensive plans are to be enforced. Section 7, subsection (8)(c), Ch. 20 19-165, LawsofFla. violates Article I, Section 9 of the Florida Constitution ("Due Process") because Section 7, subsection (8)( c), Ch. 20 19-165, Laws ofFla. does not bear a reasonable relation to a permissible legislative objective in that it completely and irrationally undermines the stated intent, purpose, and chosen enforcement mechanism of Chapter 163, Part II, Florida Statutes (the "Community

Planning Act".)

5 See also, Section 163.3161(6), Florida Statutes. Section 163.3194(3), Florida Statutes defines the term "consistent" as follows:

(a) A development order...shall be consistent with the comprehensive plan f the land uses, densities or intensities, and other aspects of development permitted... are compatible with and further the objectives, policies, land uses, and densities or intensities in the.., plan and if it meets all other criteria enumerated by the local government.

6The Consistency Cause of Action set forth in Section 163.3215(3), Florida Statutes provides for ".. . a de nova action,., against any local government to challenge any... development order..., which materially alters the use or density or intensity of use on a particular piece ofproperty which is not consistent with the comprehensive plan...."

10001000 FRIENDSFRIENDS OF FLORIDA INC vs. LAUREL M LEELEE LT. CASE NO: 2019 CACA 002215002215 HT. CASE NO: 1D20-21351D20-2135

44. Section 7, subsection (8)( c), Ch. 2019-165, Laws of Fla. violates the Due Process requirement becauseitisinational, unrelated to any reasonable public purpose, thwarts achievement of the objectives set forth in the Act, and chills the citizen enforcement of the local

Comprehensive Plans contemplated by the Act by imposing the sanction of prevailing party attorneys' fees against Plaintiff and its members who bring suit under Section 163.3215, Florida

Statutes to enforce provisions of the local Comprehensive Plans.

45. Plaintiff is entitled to declaratory and temporary and permanent injunctive relief to invalidate Section 7, subsection (8)( c), Ch. 2019-165, Laws of Fla.as a violation of the Due

Process Clause in Art. I, Section 9, Florida Constitution.

WHEREFORE, for all of the reasons above, Plaintiff asks that the Court:

A. Declare that Section 7, subsection (8)(c), Ch. 2019-165, Laws of Fla.is unconstitutional as a violation of the Due Process Clause in Art. I, Section 9, Florida Constitution.

B. Enter Temporary and Permanently Injunctive relief to order the Defendant

LAUREL M. LEE, as Secretary of State, and the STATE OF FLORIDA to expunge Section 7, subsection (8)( c), Ch. 2019-165, Laws of Fla. from the Laws of Florida and prohibit the further codification of Section 7, subsection (8)( c), Ch. 2019-165, Laws of Fla. into statute, and enjoin

Defendant, KEN LAWSON, from implementing the Law.

C. Award costs of this action to Plaintiff and

D. Grant Plaintiff such other and further relief as the Court may deem just, proper, and necessary.

Respectfully submitted on this 13th day of September 2019.

18F11

10001000 FRIENDSFRIENDS OF FLORIDA INC vs. LAUREL M LEELEE LT. CASE NO: 2019 CACA 002215002215 HT. CASE NO: 1D20-21351D20-2135

Jane West, Esquire Policy and Planning Director 1000 Friends of Florida Fla.BarNo. 159417 24 Cathedral Place, Suite 504 St. Augustine, FL 32084 Office: (904) 471-0505 jt1Q11OfiLorg Counselfor 1000 Friends of Florida

/s/ TKA Terrell K. Arline, Esquire Terrell K. Arline Attorney at Law Fla. Bar. No. 306584 1819 Tamiami Drive Tallahassee, FL 32301 (850) 321-8726 tkadineJiiwgniai1.CQ'n Co -Counsel for 1000 Friends of Florida

/s/ RG Richard Grosso, Esq. Richard Grosso, P.A. Fla. Bar No. 0592978 6919 W. Broward Boulevard Plantation, FL 33317 Mailbox 142 grc1ssorichardyahQncun1 954-801-5662 Co -Counsel for 1000 Friends of Florida

/s/ .TWT, Joseph W. Little, Esq. Fla. Bar No. 196749 3731 NW 13th Place Gainesville, FL 32605 352-372-5955

10001000 FRIENDSFRIENDS OF FLORIDA INC vs. LAUREL M LEELEE LT. CASE NO: 2019 CACA 002215002215 HT. CASE NO: 1D20-21351D20-2135

[email protected] Co -Counsel for 1000 Friends of Florida

10001000 FRIENDSFRIENDS OF FLORIDA INC vs. LAUREL M LEELEE LT. CASE NO: 2019 CACA 002215002215 HT. CASE NO: 1D20-21351D20-2135

Filing # 96586403 E -Filed 10/01/2019 11:35:02 PM

VERIFIED RETURN OF SERVICE Job #T193920

Client Info: JANE WEST LAW 24 CATHEDRAL PLACE, SUITE 504 Saint Augustine, FL 32084

Case Info: PLAINTIFF: CIRCUIT COURT 1000 Friends of Florida, a Florida not for Profit Corporation, -versus- DEFENDANT: County of Leon, Florida The State of Florida, Laurel M. Lee in her Official Capacity as Court Case # 2019 CA 002215 Secretary of State of Florida, and Ken Lawson, in his Official Capacity as the Executive Director of the Florida Department of Economic Opportunity Service Info:

Date Received by ACCURATE SERVE OF JAX: 9/19/2019 at 10:51 AM Service: I Served Ken Lawson, in his Official Capacity as the Executive Director of the Florida Department of Economic Opportunity With; Summons, Complaint by leaving with SHARIN WELLS, ASSISTANT GENERAL COUNSEL

At Business 107 EAST MADISON STREET CALDWELL BUILDING TALLAHASSEE, FL 32399 On 9/26/2019 at 01:06 PM Manner of Service: GOVERMENT AGENCY PUBLIC AGENCY SERVICE: F.S. 48.111 (1)(a)(b)(c) (2) (3)

I MARY GREEN acknowledge that I am authorized to serve process, in good standing in the jurisdiction wherein the process was served and I have no interest in the above action. Under penalties of perjury, I declare that I have read the foregoing document and that the facts stated in it are true.

MARY GREEN Lic # 243

ACCURATE SERVE OF JAX 4446 HENDRICKS AVE Jacksonville, FL 32207

Client # J196116 Job # T193920

1 of 1 I El I'JiIi 1*El Ifl

10001000 FRIENDSFRIENDS OF FLORIDA INC vs. LAUREL M LEELEE LT. CASE NO: 2019 CACA 002215002215 HT. CASE NO: 1D20-21351D20-2135

Filing # 97625853 E -Filed 10/21/2019 05:05:53 PM

1N THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT 1N AND FOR LEON COUNTY, FLO}UDA

1000 FRIENDS OF FLORIDA, INC., a Florida Not for Profit Corporation, PlaintJf v. CaseNo.: 2019 CA 002215

THE STATE OF FLORIDA, LAUREL M. LEE, in her official capacity as Secretary of State of Florida, and KEN LAWSON, in his official capacity as the Executive Director of the Florida Department of Economic Opportunity, Defendants.

SECRETARY LEE'S MOTION TO DISMISS WITH PREJUDICE

Defendant, Florida Secretary of State Laurel M. Lee, pursuant to Rule 1.140, Florida

Rules of Civil Procedure, moves to dismiss the complaint with prejudice because she is not a

proper defendant and therefore the court lacks subject matter jurisdiction against her. Plaintiff

challenges the constitutionality of Chapter 2019-165, Laws of Florida, which is "an act relating

to community development and housing," and section 163.32 15(8)(c), which allegedly

"sanction[s]" those "who bring suit under Section 163.3215...to enforce provisions of the local

Comprehensive Plans." Compi. 1, 44. Those provisions however, are not enforced by

Secretary Lee, nor do they involve any broad constitutional duty of the state or implicate her

specific responsibilities, which could otherwise make a non -enforcement authority proper. See

Scott v. Francati, 214 So. 3d 742, 746 (Fla. 1st DCA 2017), review denied sub nom, Francati v.

Scott, No. 5C17-730, 2017 WL 2991836 (Fla. July 14, 2017).

10001000 FRIENDSFRIENDS OF FLORIDA INC vs. LAUREL M LEELEE LT. CASE NO: 2019 CACA 002215002215 HT. CASE NO: 1D20-21351D20-2135

I. BACKGROUND

This is an action for declaratory and injunctive relief to declare a legislative act and one of its provisions unconstitutional, enjoin their enforcement, and "expunge" them "from the Laws of Florida and prohibit the[ir] further codification...into statute." Compi. (wherefore clauses).

The challenged act relates to "community development and housing," amending "provisions of current law running the gamut from conmiunity planning, land development regulations, affordable housing, and even condominium fire safety requirements." Compl. ¶1, 3; Ch. 2019-

165, Laws of Fla. The challenged provision of the act adds a right to attorney's fees and costs for those who prevail "in a challenge to a development order" that is allegedly "inconsistent with a local government's [c]omprehensive [p]lan." Compl.¶f24-25; § 163.3215(8)(c), Fla. Stat.

Secretary Lee does not enforce any provision in the act. Plaintiff does not allege otherwise. To the contrary, Plaintiff alleges it is Director Lawson, as the Executive Director of

Department of Economic Opportunity who "administers Chapter 163, Florida Statutes, portions of which are challenged as unconstitutional in this action." Compl.j 23. Nor are any of

Secretary Lee's specific responsibilities implicated by any of the act's provisions. Secretary Lee is the head of the Department of State, which has Elections, Corporations, Historical Resources,

Cultural Affairs, and Library and Information Services as its divisions. § 20.10, Fla. Stat.

Secretary Lee is also the custodian of the laws of the state.§ 15.02, Fla. Stat. This function, that she performs for all laws, as well as her alleged "authority to expunge an unconstitutional statute upon order of a court" is the basis that allegedly makes Secretary Lee a proper defendant in this constitutional challenge. Compi. ¶ 22. The relief requested against Secretary Lee is limited to

"expungement." Compi. ¶ 22 & (wherefore clauses). The requested injunction against enforcement is directed at Director Lawson. Compi.23 & (wherefore clauses).

10001000 FRIENDSFRIENDS OF FLORIDA INC vs. LAUREL M LEELEE LT. CASE NO: 2019 CACA 002215002215 HT. CASE NO: 1D20-21351D20-2135

II. ARGUMENT

Secretary Lee is not a proper party to this action on the bases Plaintiff alleges. See

Compi. ¶ 22 (custodian of state laws and expungement authority).

A. Standards.

This case arises under Chapter 86, the Declaratory Judgment Act, which authorizes trial courts to render declaratory judgments on the existence, or non-existence, of any immunity, power, privilege, or right. Compl.¶f33, 39; § 86.011, Fla. Stat. Plaintiff seeks to declare the challenged act and one of its provisions unconstitutional, enjoin their enforcement, and expunge them from the Laws of Florida and prevent their codification into statute. Comp!. (wherefore clauses). To invoke the jurisdiction of the court, however, there "must exist some justiciable controversy between adverse parties that needs to be resolved." Martinez v. Scanlan, 582 So. 2d

1167, 1171 (Fia. 1991). Specifically, "an actual, present, adverse and antagonistic interest in the subject matter," is a required element "in order to maintain the status of the proceeding as being judicial in nature and therefore within the constitutional powers of the courts." Martinez, 582 So.

2d at 1170 (quoting May v. Holley, 59 So. 2d 636, 639 (Fla.1952)).

Accordingly, the "proper defendant in a lawsuit challenging a statute's constitutionality is the state official designated to enforce the statute." Atwater v. City of Weston, 64 So. 3d 701 (Fla.

1st DCA 2011) (reversing summary judgement against the Secretary, among others, because he was "not a proper party to the lawsuit for that official does not enforce Florida's growth management laws" challenged there). If the state official is not the enforcement authority, then she is a proper defendant only if (1) the lawsuit "involves a broad constitutional duty of the state implicating specific responsibilities of the state official" and (2) "the state official has an actual, cognizable interest in the challenged action." Scott v. Francati, 214 So. 3d 742, 746 (Fla. 1st

10001000 FRIENDSFRIENDS OF FLORIDA INC vs. LAUREL M LEELEE LT. CASE NO: 2019 CACA 002215002215 HT. CASE NO: 1D20-21351D20-2135

DCA 2017), review denied sub nom, Francati v. Scott, No. SC17-730, 2017 WL 2991836 (Fla.

July 14, 2017).

B. Custody of statutes and expunction authority do not make Secretary Lee a proper party.

Plaintiff alleges that Secretary Lee, as "custodian of the laws of the state" and having

"authority to expunge an unconstitutional statute upon order of a court" make her a proper party here. Compl. ¶ 22. They do not. Under Plaintiff's logic, Secretary Lee would be a proper party to defend every constitutional challenge of a statute. She certainly is not. See Women 's

Emergency Network v. Bush, 323 F.3d 937, 949-50 (11th Cir. 2003) (rejecting jurisdiction over

Florida Governor because "if a governor's general executive power provided a sufficient connection to a state law to permit jurisdiction over him, and statute could be challenged simply by naming the governor as a defendant"). If it would be "absurd" to conclude that the

"Governor's general executive power...is sufficient to make him a proper defendant whenever apartyseeks a declaration regarding the constitutionality of a state law," then it is absurd to conclude so here. Francati, 214 So. 3d at 746.

To the contrary, the Secretary of State has been found to not be a proper party on substantially the same basis alleged to require her here, in substantially the same action. See

Atwater v. City of Weston, 64 So. 3d 701 (Fla. 1st DCA 2011). In City of Weston, the Secretary, among others, was named as a defendant in a constitutional challenge seeking to invalidate a newly effective act relating to growth management, including on single subject grounds. Id. at

702-03. The Secretary was named because she "is responsible for registering, indexing, segregating and classifying all acts of the Legislature, including SB 360 [the challenged acti.

See Sections 15.01, 15.155, Florida Statutes." City of Weston v. Atwater, 2009 WL 8629991, ¶ 7

(Fla. 2d Jud. Cir. July 8, 2009) (Compl.)Plaintiff alleges a similar basis here. Compl. ¶ 22

10001000 FRIENDSFRIENDS OF FLORIDA INC vs. LAUREL M LEELEE LT. CASE NO: 2019 CACA 002215002215 HT. CASE NO: 1D20-21351D20-2135

(citing section 15.02, Florida Statutes). The lower court denied the Secretary's motion to dismiss. On appeal, the First District Court of Appeal reversed and remanded with instructions to dismiss the action. City of Weston, 64 So. 3d 705. It did not matter that the Secretary was the custodian of the challenged act. The Secretary was not a proper party because "that official does not enforce Florida's growth management laws" challenged in that action, Id. 704.Secretary

Lee still has no enforcement authority over growth management laws.

An official without enforcement authority over the challenged act or provision is not a proper party defendant. Id. at 704 (remanding for dismissal because the Secretary of State did not enforce the challenged act). Only in the limited circumstance where an action "involve[s] a broad constitutional duty of the state implicating specific responsibilities of the state official,"

"who has an actual, cognizable interest in the challenged action," will an official without enforcement authority be a proper defendant. Scott v. Francati, 214 So. 3d 742, 746 (Fla. 1st

DCA 2017). This is not such a circumstance.

There is no broad constitutional duty of the state at issue in this action. At issue is

Plaintiff's and its members' ability "to challenge developments [sic] orders that are inconsistent with a local government's [c]omprehensive [p]lan" and otherwise "ensuring the proper implementation of Florida's growth management laws." Compl. ¶ 20, 25. That is not a duty of the state, let alone a broad constitutional duty like adequately funding the public education system, Coal.for Adequacy & Fairness in Sch. Funding, Inc. v. Chiles, 680 So.2d 400 (Fla.

1996), or redistricting the state after each decennial census, Brown v. Butterworth, 831 So.2d

683, 689-90 (Fla. 4th DCA 2002), which are the types of duties found sufficient.

Nor is Secretary Lee's expungement authority implicated by this action. At most, that authority is limited to extraordinary actions for writs of mandamus, filed directly in the Supreme

10001000 FRIENDSFRIENDS OF FLORIDA INC vs. LAUREL M LEE LT. CASE NO: 2019 CACA 002215002215 HT. CASE NO: 1D20-21351D20-2135

Court, where "the functions of government will be adversely affected unless an immediate determination is made by this [Florida Supreme] Court." Moreau v. Lewis, 648 So. 2d 124, 126

(Fla. 1995). The oniy context in which this occurs is when provisions in General Appropriations

Acts are challenged because those challenges "cast doubt upon the expenditure of substantial amounts of public funds." Brown v. Firestone, 382 So. 2d 654, 662 (Fla. 1980) (challenging vetoes to appropriations in the 1979 General Appropriations Act); Dickinson v. Stone, 251 So. 2d

268 (Fla. 1971) (challenging appropriations in the 1971 General Appropriations Act); Murray v.

Lewis, 576 So. 2d 264 (Fla. 1990) (challenging provisos to appropriations in the 1990-9 1

General Appropriations Act); Moreau, 648 So. 2d 124 (challenging appropriations in the 1994-

95 General Appropriations Act).

Otherwise, "under ordinary circumstances," the Florida Supreme Court recognizes that

"the constitutionality of a statute should be challenged by filing a suit for declaratory judgment in circuit court." Moreau, 648 So. 2d at 126. And in that action, "there still must exist some justiciable controversy between adverse parties that needs to be resolved." City of Weston, 64

So. 3d at 705 (emphasis in original). Secretary Lee's custodial function and expunction authority do not create such a controversy.

III. CONCLUSION

Secretary Lee has no actual, cognizable interest in this action and it should be dismissed against her with prejudice because the Court lacks subject matter jurisdiction.

WHEREFORE, Secretary Lee respectfully requests that the Court grant her motion to dismiss and dismiss this action, as against her, with prejudice.

Respectfully submitted,

/s/Ashley E. Davis BRADLEY R. MCVAY (FBN 79034)

10001000 FRIENDSFRIENDS OF FLORIDA INC vs. LAUREL M LEE LT. CASE NO: 2019 CACA 002215002215 HT. CASE NO: 1D20-21351D20-2135

General Counsel brad,[email protected]. corn ASHLEY E. DAvIs (FBN 48032) Deputy General Counsel [email protected]

FLORIDA DEPARTMENT OF STATE RA. Gray Building, Suite 100 500 South Bronough Street Tallahassee, Florida 32399-0250 Phone: (850) 245-6536 Fax: (850) 245-6127

Counsel for Secretaiy of State

CERTIFICATE OF SERVICE

THEREBY CERTIFY that on this 21st day of October, 2019, a true copy of the foregoing was filed electronically with the Clerk of Court through the Florida Courts eFiling Portal and served on all counsel of record via email using e -service.

/s/Ashley E. Davis ATTORNEY

10001000 FRIENDSFRIENDS OF FLORIDA INC vs. LAUREL M LEELEE LT. CASE NO: 2019 CACA 002215002215 HT. CASE NO: 1D20-21351D20-2135

Filing # 98271742 E -Filed 11/01/2019 04:48:40 PM

IN THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT IN AND FOR LEON COUNTY

1000 FRIENDS OF FLORIDA, iNC., a Florida not for Profit Corporation;

Plaintiff,

V. CaseNo.: 2019CA002215

THE STATE OF FLORIDA, LAUREL M. LEE, in her Official Capacity as Secretary of State of Florida, and KEN LAWSON, in his Official Capacity as the Executive Director of the Florida Department of Economic Opportunity;

Defendants.

DEFENDANT, KEN LAWSON's, MOTION TO DISMISS PLAINTIFF, 1000 FRIENDS OF FLORIDA, INC.'s, COMPLAINT WITH PREJUDICE, AND ALTERNATIVE MOTION TO DISMISS COUNTS I AND II OF PLAINTIFF's COMPLAINT

COMES NOW Defendant, KEN LAWSON, in his Official Capacity as the Executive

Director of the Florida Department of Economic Opportunity ("Lawson"), and pursuant to Florida

Rules of Civil Procedure 1 .110(b), 1.140(b), and 1.420(b), and hereby files this Motion to Dismiss

Plaintiff, 1000 FRIENDS OF FLORIDA, INC.'s ("1000 Friends" or "Plaintiff') Complaint with

prejudice, and Alternative Motion to Dismiss Counts I and II of Plaintiff's Complaint, and in

support thereof, states as follows:

1. Plaintiffs Complaint concerns the constitutionality and enforceability of a

prevailing party attorney fees provision passed by the Florida Legislature contained within "[a]n

act relating to community development and housing," enacted as Chapter 2019-165, Laws of

Florida, and codified at section 1633215 (8)(c), Florida Statutes.'

The challenged attorney fee language at issue is now set forth in section 163.321 5(8)(c) as follows:

10001000 FRIENDSFRIENDS OF FLORIDA INC vs. LAUREL M LEELEE LT. CASE NO: 2019 CACA 002215002215 HT. CASE NO: 1D20-21351D20-2135

2. Plaintiff alleges the inclusion of the attorney fee provision in section 163.3215,

Florida Statutes will have an "egregious chilling effect" and "undermines" the "purpose" and

"intent" of the Community Planning Act codified at Chapter 163, Florida Statutes, which prohibits, among a myriad of other provisions, approval of a development order that is inconsistent with a comprehensive plan.2 Complaint atif13, 16,

3. Plaintiff states that the attorney fee provision will have a "punishing" effect on the ability of citizens to participate in the development order challenge process, and contrary to Florida law, asserts that the prevailing party attorney fee provision is a "sanction" and "sanctions" against "Plaintiff and its members who bring suit." Complaint atif13, 36, 44. HFC Collection Center, Inc. v. Alexander, 190 So.3d 1114 (Fla. 5th DCA 2016) ("Here, fees were awarded based upon a

statutory prevailing party basis, rather than as a sanction. The trial court was not called upon to consider sanctions."). Plaintiff's position is not legally supported as case law has made it clear that a prevailing party attorney fee provision is not a sanction despite Plaintiff's claims to the contrary.

(c) The prevailing party in a challenge to a development order under subsection (3) is entitled to recover reasonable attorney fees and costs incurred in challenging or defending the order, including reasonable appellate attorney fees and costs.

Section 163.32 15(8)(c), Florida Statutes.

2Section 163.32 15 is refeiTed to in Plaintiff's Complaint as the "Consistency Challenge Statute" and provides as follows:

(3) Any aggrieved or adversely affected party may maintain a de novo action for declaratory, injunctive, or other relief against any local government to challenge any decision of such local government granting or denying an application for, or to prevent such local government from taking any action on, a development order, as defined in s. 163.3164, which materially alters the use or density or intensity of use on a particular piece of properly which is not consistent with the comprehensive plan adopted under this part. The de novo action must be filed no later than 30 days following rendition of a development order or other written decision, or when all local administrative appeals, if any, are exhausted, whichever occurs later.

Section 163.32 15, Florida Statutes.

10001000 FRIENDSFRIENDS OF FLORIDA INC vs. LAUREL M LEELEE LT. CASE NO: 2019 CACA 002215002215 HT. CASE NO: 1D20-21351D20-2135

4. The Department of Economic Opportunity ("Department") is the designated "state land planning agency", however, this does not mean the Department administers all of Chapter

163.Indeed, the Department's role is limited to the specific grants of authority from the legislature, which include, but are not limited to, coordinating state agency review of proposed comprehensive plan amendments (section 163.3184, Florida Statutes), performing informal investigations of petitions contesting the consistency of land development regulations with a local government's comprehensive plan (section 163.3213, Florida Statutes), and providing technical assistance to help communities find creative solutions to foster vibrant, healthy communities

(section 163.3168).

5. As recognized by the Plaintiff in the Complaint, the Department does not administer or enforce section 163.3215, Florida Statutes. Complaint p43. Section 163,3215 provides that an aggrieved or adversely affected party, meaning a person or local govemment, may file a de novo action for declaratory, injunctive, or other relief against any local government to challenge any decision of such local government. The Department is not a party or otherwise involved in any challenge. The Department has no authority to grant or deny prevailing party attomey fees at the conclusion of any challenge to a development order. The decision to grant or deny prevailing party attorneys' fees resides with the circuit court judge.

6. The Complaint attempts to allege two separate counts each of which seek both declaratory and injunctive relief against Lawson as well as LAUREL M. LEE, in her Official

Capacity as Secretary of State of Florida ("Lee").

7. Count I is an alleged violation of the single subject requirement of Article III,

Section 6, Florida Constitution.

10001000 FRIENDSFRIENDS OF FLORIDA INC vs. LAUREL M LEELEE LT. CASE NO: 2019 CACA 002215002215 HT. CASE NO: 1D20-21351D20-2135

8. Count II is an alleged violation of the substantive due process guarantee of Article

I, Section 9, Florida Constitution.

9. While seeking declarations that Chapter 2019-165, Laws of Florida, is violative of single subject and due process requirements of the Florida Constitution, the Complaint also seeks temporary and permanent injunctive relief, in each respective count, in an effort to prevent

Defendant Lawson, as the "head of the executive agency that is the state land planning agency," from acting in a role that Plaintiff mistakenly characterizes as "implementing" Chapter 2019-1 65,

Laws of Florida, as it relates to the challenged attorney fee provision, now codified at Florida

Statutes, section 163.3215(8)(c).

10. Defendant Lee is also named in each count seeking declaratory judgment and is sought to be enjoined via temporary and pennanent injunctive relief to "expunge the Law [Chapter

20 19-165, Laws of Florida]" and "prohibit the further codification of the Law into statute."

11. For the reasons stated below, Plaintiff, 1000 Friends', Complaint should be dismissed with prejudice, or altematively, Counts I and II of 1000 Friends' Complaint should be dismissed.

I. The Court Lacks Jurisdiction Over the Sublect Matter

12. As pled in Plaintiff's Complaint, there is no case or controversy (i.e., no justiciable controversy) or bona fide dispute before the court, and so the court lacks subject matter jurisdiction. F1.R.Civ.P. 1.140(b)(1). State of Florida v. Florida Consumer Action Network, 830

So.2d 148, 154 (Fla 1t DCA 2002) (reversing summary judgment granted in favor of a citizen's group, who had brought a declaratory judgment action seeking to have the extensive revisions to

Florida's tort system declared unconstitutional on single subject grounds, for failure to allege an appropriate justiciable controversy).

10001000 FRIENDSFRIENDS OF FLORIDA INC vs. LAUREL M LEELEE LT. CASE NO: 2019 CACA 002215002215 HT. CASE NO: 1D20-21351D20-2135

13. In Florida Consumer Action Network, the court rejected a single subject constitutional challenge violation on the grounds that consumer groups failed to allege an appropriate justiciable controversy and accepted the State's argument that the trial court erred in accepting jurisdiction over the suit.Florida Consumer Action Network, 830 So.2d at 15 1-154.

The court rejected the "ripening seeds of controversy" theory put forth by the appellees and reversed the trial court's errant finding that subject matter jurisdiction was present such that a

"cause of action could be...maintained because the plaintiff's claims demonstrated that litigation is imminent and unavoidable in the immediate future." Id. at 151

14. The First DCA in Florida Consumer Action Network cited the Florida Supreme

Court at length for the following proposition:

Before any proceeding for declaratory relief should be entertained it should be clearly made to appear that there is a bona fide, actual, present practical need for the declaration; that the declaration should deal with a present, ascertained or ascertainable state of facts or present controversy as to a state of facts; that some immunity, power, privilege or right of the complaining party is dependent upon the facts or the law applicable to the facts; that there is some person or persons who have, or reasonably may have an actual, present, adverse and antagonistic interest in the subject matter, either in fact or law; that the antagonistic and adverse interests are all before the court by proper process or class representation; and that the relief sought is not merely the giving of legal advice by the courts or the answer to questions propounded from curiosity. These elements are necessary in order to maintain the status of the proceeding as being judicial in nature and therefore within the constitutional powers of the courts.

Florida Consumer Action Network, 830 So.2d at 151 (citing May v. Holley, 59 So.2d 636 (Fla.

1952)) (Emphasis supplied). Further, the court squarely addressed the trial court error in stating that:

In upholding a complaint that was utterly devoid of any allegation of a present controversy, and that failed to name a person who had any actual adverse interest in the subject matter of the litigation, the lower court misapplied the ripening seeds of controversy doctrine. The term is not a broad exception to the requirement of adversity or conflict. While one may seek a declaration of his or her rights without an allegation of actual injury, an aggrieved party must nonetheless make some

10001000 FRIENDSFRIENDS OF FLORIDA INC vs. LAUREL M LEELEE LT. CASE NO: 2019 CACA 002215002215 HT. CASE NO: 1D20-21351D20-2135

showing of a real threat of immediate injury, rather than a general, speculative fear of harm that may possibly occur at some time in the indefinite future.

Id, at 152. Lastly, the First DCA in Florida Consumer Action Network explained that the trial court failed to consider a key portion of the American Jurisprudence treatise it had cited regarding declaratory judgments which reflected that:

the interest of the parties arising out of their relationship to each other and to the subject of the controversy must be more than merely general. It must be a substantial present interest in the relief sought....

Id. at 152.Because the trial court lacked subject matter jurisdiction, the court reversed the summary judgment and remanded to the trial court "with directions to dismiss the complaint with prejudice." Id. at 154. (Emphasis supplied). See also Apthorp v. Detzner, 162 So. 3d 236, 241-

242 (Fla. l DCA 2015) (vacating a trial court's declaratory judgement on constitutional claim, with instructions to dismiss, due to plaintiff's failure to raise a justiciable controversy with the defendant state agency); Treasure Chest Poker, LLC v. Dep 't of Bus. & Prof'l Regulation, 238

So. 3d 338, 341 (Fla. 2d DCA 2017) (reversing a trial court's declaratory judgement for lack of subject matter jurisdiction, with instructions to dismiss complaint with prejudice, because plaintiff's complaint failed to allege a bona fide dispute between the parties, and therefore, plaintiff was not entitled to bring a declaratory judgement action).

15. In the case at bar, Plaintiff alleges that Chapter 2019-165 "undermines the intent, purpose and rationale of the Act... by chilling, frustrating, and punishing the ability of locally affected citizens to challenge local government decisions that are not consistent with the local

Comprehensive Plan." Complaint at Ji3. Plaintiff asserts that it has previously "brought cases under the Consistency Challenge Statute and supported citizens and local governments in such cases" and that Chapter 2019-165 "makes it economically infeasible for 1000 Friends and its individual members to challenge development orders.., and unreasonably chills the ability of 1000

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Friends to implement its corporate purposes to further comprehensive planning in Florida through litigation." Complaint at 20, 25.

16. Plaintiffs Complaint fails to allege it is a party which has an "actual, present, adverse and antagonistic interest in the subject matter," a necessary elenient to vest this Court with subject matterjurisdiction. Plaintiff's simple averment that Defendant Lawson "is the head of the executive agency that is the state land planning agency that administers Chapter 163, Florida

Statutes" followed by the conclusory contention that a "genuine and current dispute" exists and that there is an "imminent threat of harm" is fundamentally disconnected. Complaint at W23, 27.

17. The Department is not a proper party, does not have review authority, or any role in administering a section 163.3215 challenge brought by an aggrieved or adversely affected party.

The proper parties to a section 163.32 15 challenge would be the local government and any aggrieved or adversely affected party, not the Department. The Court does not have subject matter jurisdiction over the Plaintiff's Complaint because the Plaintiff does not have an actual, present, adverse and antagonistic interest against the Department in the subject matter.

18. In addition, the Department has no role in administering at least 14 of the 17 substantive sections within Chapter 2019-165, Laws of Florida, including the amendment to section 163.3215, which were altered by Section 7 of Chapter 2019-165, Laws of Florida, and form the primary basis of the Plaintiffs Complaint. As to the remaining sections of Chapter 2019-

165, Laws of Florida, the only section that in any way relates to the Department's administration of Chapter 163 appears to be with Section 4, which modifies section 163.3180, Florida Statutes, concerning concurrency within a local government's comprehensive plan.3

The Department's role in this process would be to coordinate review of comprehensive plan amendments, which requires a determination that the plan amendment be "in compliance." The comprehensive plan amendment is in compliance ifit is consistent with the requirements of sections 163.3177, 163.3178, 163.3180, 163.3191, 163.3245, and 163.3248, Florida Statutes. Seesection 163.3184(1)(b), Florida Statutes.At most, the Department has an

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19. The minimalallegationsintheComplaint concerningtheDepartment's administration of Chapter 163 are deficient and unrelated to the Plaintiff's alleged cause of action.

The Plaintiff's Complaint cites to section 163.3164(2) and 163.3184(6), Florida Statutes, apparently for the proposition that the Department is responsible for administering Chapter 163.

Complaint p23. Section 163,3164(20) provides the definition for "Governing Body" as:

the board of county commissioners of a county, the commission or council of an incorporated municipality,or any other chief governing body of a unit of local government, however designated, or the combination of such bodies where joint utilization of this act is accomplished as provided herein,

Section 163.3184(6) provides for the Department to play a minimal role during a Compliance

Agreement entered into during a challenge to a comprehensive plan or plan amendment pursuant to section 163,384 - not a challenge to a development order under section 163,3215, These disparate statutory citations in the Plaintiff's Complaint cannot establish that the Department has a role in administering something that it does not; i.e., the Consistency Challenge Statute.

20. Plaintiff's bare, conclusory allegations are deficient and do not rise to the level of an actual, immediate, real, present, bona fide, adverse case or controversy requiring adjudication by the court.In fact, given the conclusory allegations, it would appear that Plaintiff wishes to overcome by judicial action an outcome taken by the Legislature with which it disagrees.

21. Just as in Florida Consumer Action Network, Plaintiff's asserted claims of injury are "nonspecific and hypothetical" and do no more than question the constitutionality of Chapter

20 19-165 based on "vague, general fears of possible future harm." Florida Consumer Action administrative review role for a single section out of the 17 substantive sections within Chapter 2019-165, Laws of Florida.

The other two sections within Chapter 2019-165, Laws of Florida, that, in part, relate to the Department are Section 3, which modifies section 163.3167, Florida Statutes, a legislative proclamation of the scope of the Community Planning Act, and Section 6, which modifies section 163.3202, Florida Statutes, relatillg to local government land development regulations.

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Network, 830 So.2d at 153. Plaintiff's allegations about the potential effect of a prevailing party attorneys' fee provision are insufficient to create a justiciable controversy which would permit the circuit court to accept jurisdiction over the present case. Accordingly, Plaintiff's Complaint should be dismissed with prejudice as there is no bona fide dispute.

II. Lack of Standing

22. The Complaint should be dismissed with prejudice because Plaintiff lacks standing to bring counts I and TI alleged in the Complaint. Because there is no case or controversy or bona fide dispute,see supra,Plaintiff has no standing.4

23. Section 163.32 15, which contains the attorney fee provision at the center of this matter, is entitled "Standing to enforce local comprehensive plans through development orders" and requires local goveniments that issue contested development orders to be named as respondents in all proceedings. The statute provides "the exclusive methods for an aggrieved or adversely affected party to appeal and challenge the consistency of a development order with a comprehensive plan" and sets forth who has standing to proceed under those exclusive methods.

Section 163.3215(1), Florida Statutes.Section 163.3215 states as follows:

(1) Subsections (3) and (4) provide the exclusive methods for an aggrieved or adversely affected party to appeal and challenge the consistency of a development order with a comprehensive plan adopted under this part. The local government that issues the development order is to be named as a respondent in all proceedings under this section. Subsection (3) shall not apply to development orders for which a local government has established a process consistent with the requirements of subsection (4). A local government may decide which types of

The U.S. Supreme Court has considered the doctrine of standing in reviewing issues related to numerous federal statutes and has spoken clearly on the interrelated nature of standing and case and controversy. See Spokeo, Inc. v. Robins, 1365.Ct. 1540, 1547, 1549 (U.S. 2016) (vacatillg and remanding appellate court decisioll where appellate court did not determine whether alleged violations of Fair Credit Reporting Act caused concrete injury required for standillg aild stating that "[sitanding to sue is a doctrille rooted in the traditional understanding of case or coiltroversy" and "the doctrine of standing derives from the case -or controversy requirement"). Lujan v. Defenders of Wildlife, 112 S.Ct. 2130, 2136 (U.S. 1992) (reversing on standing grounds the appellate court's ently ofjudgment for environmental groups - subsequent to an initial dismissal by the trial court - and stating that standing requires a plaintiff to have an injury in fact, which is ainvasioll of a legally protected illterest which is concrete aild particularized and actual or imminent rather than conjectural or hypothetical).

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development orders will proceed under subsection (4). Subsection (3) shall apply to all other development orders that are not subject to subsection (4).

(2) As used in this section, the term "aggrieved or adversely affected party" means any person or local government that will suffer an adverse effect to an interest protected or furthered by the local government comprehensive plan, including interests related to health and safety, police and fire protection service systems, densities or intensities of development, transportation facilities, health care facilities, equipment or services, and environmental or natural resources. The alleged adverse interest may be shared in common with other members of the community at large but must exceed in degree the general interest in community good shared by all persons. The term includes the owner, developer, or applicant for a development order.

Section 163.3215, Florida Statutes (Emphasis supplied). The definitional section of the

Community Planning Act at section 163.3 164, Florida Statutes, further defines "person" as "an individual, corporation, governmental agency, business trust, estate, trust, partnership, association, two or more persons having a joint or common interest, or any other legal entity."

24. Significantly, the instant matter is not an action brought pursuant to section

163.32 15.Section 163.32 15 does not dispense with a case or controversy or bona fide dispute requirement, but rather undertakes to define and broaden the parameters of when the statute applies. As reflective of the absence of a case or controversy as contemplated by section 163.3215, no local government has been named as a respondent in this matter, which is a clear requirement of section 163.3215(2).The legislature's use of the definite article "the" precedent to "local government comprehensive plan" in section 163.3215(2) contemplates a specific instance and a real situation - not a conjectural, speculative allegation of a generalized possibility of harm. Id.

Therefore, the common law of standing is more appropriately applied in this matter as no specific local development order is being challenged in the Complaint.5

Even if applied and broadly construed, which should not happen as this is not an action under section 163.32 15 and there is no specific local development order being challenged as required by the statute, the definition of standing is designed to allow an "aggrieved or adversely affected party" to make a consistency challenge, but it is not intended to impart an unlimited grant of standing to any corner. Section 163.3215(1), Florida Statutes. For example, for standing

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25. In hayes v. Guardianship of Thompson, 952 So.2d 505 (Fla. 2006), the Florida

Supreme Court explained the law of standing:

Standing is a legal concept that requires a would-be litigant to demonstrate that he or she reasonably expects to be affected by the outcome of the proceedings, either directly or indirectly. See generally Brown v. Firestone, 382 So.2d 654, 662 (Fla.1980) ("[T]his Court has long been committed to the rule that a party does not possess standing to sue unless he or she can demonstrate a direct and articulable stake in the outcome of a controversy."); Weiss v. Johansen, 898 So.2d 1009, 1011 (Fla. 4th DCA 2005) ("Standing depends on whether a party has a sufficient stake in a justiciable controversy, with a legally cognizable interest which would be affected by the outcome of the litigation."). Thus, standing to bring or participate in a particular legal proceeding often depends on the nature of the interest asserted.

Hayes, 952 So.2d at 505. More recently, in Cruz v. Community Bank & Trust of Florida, 2019

WL 3755444 (Fla. 5th DCA 2019), the Fifth District Court of Appeal stated that:

Standing is a threshold inquiry that must be addressed before considering the merits of a cause of action. See Olen Props. Corp. v. Moss, 981 So. 2d 515, 517 (Fla. 4th DCA 2008). To have standing, a would-be litigant must show "a direct and articulable interest in the controversy, which will be affected by the outcome of the litigation." Centerstate Bank Cent. Fla., N.A. v. Krause, 87 So. 3d 25, 28 (Fla. 5th DCA 2012). This interest must be legally cognizable and not "conjectural or merely hypothetical." Id. Standing to bring or participate in a particular legal proceeding often depends on the nature of the interest asserted, Hayes v. Guardianship of Thompson, 952 So. 2d 498, 505 (Fla. 2006).

Cruz, WL 3755444 at *1.

26. In the case at bar, which is not an action brought pursuant to section 163.3215,

Florida Statutes, Plaintiff has not alleged a specific, real instance where litigation was not actually undertaken due to a supposed negative disincentive created by a facially neutral prevailing party fee statute, In light of the aforenoted authorities, and given the commitment of the Florida courts

to be proper under the statute the alleged adverse interest "must exceed in degree the general interest in community good shared by all persons," which has not been adequately alleged in this matter.Section 163.3215(2), Florida Statutes. Indeed, Plaintiff is similarly situated to any other potential party entitled to challenge a development order and appears to harbor what constitutes a generalized interest in community good. Absent the requisite quantum of allegations of enhanced intensity of interest, amid absent a challenge to a specific local government development order, neither of which is present in the Complaint, Plaintiff's allegations are deficient and cannot impart standing even if section 163.3215(1) and (2) were to be mistakenly applied.

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to adjudicating matters where articulatable, non -conjectural, non -hypothetical interests are at stake, the mere expectation of a negative disincentive, without more and presented in a vacuum, is not a reasonable expression of a direct or indirect interest which would be affected by the outcome of this proceeding. Indeed, Plaintiff merely contends that Section 7 of Chapter 2019-165 "makes it economically unfeasible" to pursue unspecified, potential litigation which might possibly happen at some point in the future.Complaint at [r25.The allegation is fundamentally indefinite and uncertain and does not rise to the level of specificity required to articulate a cognizable claim and impart standing. See Citizens Growth Management Coalition of West Palm Beach, Inc. v. City of

West Palm Beach, Inc., 450 So 2d 204, 208 (Fla. 1984) (affirming judgment for city and against association of city residents on standing grounds where association failed to prove that it or any of its members had a legally recognizable interest which would be affected by city's ordinances);

Florida Rock Properties v. Keyser, 709 So.2d 175, 177 (Fla. 5th DCA 1998) (reversing final judgment and holding that owner of land and business in county who had interest in environment was not an aggrieved or adversely affected party and lacked standing to enforce county comprehensive development plan absent showing that rezoning would have specific impact on him or his property); 1000 Friends of Florida, Inc. v. St. John's County, 756 So.2d 216, 217-218

(Fla. 5 DCA 2000) (environmental groups and individual plaintiffs did not have standing under section163.3164(24)and163.3177(6)(a),FloridaStatutes,tocontest Departmentof

Transportation's project to run water and sewer lines through rights -of -way, despite their contention that project was public facility and that county's comprehensive plan had to be amended); Martin County Conservation Alliance v. Martin County, 134 So.2d 966, 967 (Fla. 1st

DCA 2010) (dismissing an appeal from an administrative proceeding conducted pursuant to section 120.68, Florida Statutes, and holding that interest groups lacked standing to appeal

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administrative order, where groups failed to demonstrate that their interests or the interests of a substantial number of their members were adversely affected by the order).6

27. As such, Plaintiff's Complaint should be dismissed with prejudice due to a lack of standing.

III. Failure to State Causes of Action

28. Counts I and Ii of Plaintiffs Complaint should be dismissed because Plaintiff has failed to state causes of action and is not entitled to declaratory relief or injunctive relief.

F1,R.Civ.P, 1. 140(b)(6).

29. The court in Ilankins v. Title & Trust Co. ofFlorida set forth the rule that uniquely applies in the context of evaluating the sufficiency of a complaint a seeking a declaratory judgm ent.

Hankins v. Title & Trust Co. of Florida, 169 So.2d 526, 528 (Fla. Pt DCA 1964), The court in

Hankins stated as follows:

All of the appellate courts of Florida have recognized the rule that in such proceedings the test of the sufficiency of the complaint is not whether the complaint shows that the plaintiff will succeed in getting a declaration of rights in accordance with his theory and contention, but whether he is entitled to a declaration of rights atall.See Rosenhouse v.1950 Spring Term Grand Jury, 56 So.2d 445 (Fla.App.,1952), Modernage Furniture Corp. v. Miami Rug Co., 84 So.2d 916 (Fla.App.,1955),NorthShoreRealtyCorp.v.Gallaher,99So.2d 255 (Fla.App.,App.1957), Bartholf v. Bartholf, 108 So.2d 905 (Fla.App.,App.1959), Platt v. General Development Corp., 122 So.2d 48 (Fla.App.,App.1960), and Jackson Tom, Inc. v. Carlton, 133 So,2d 752 (Fla.App., App.1961).

6But see Nassau County v.Willis, 41 So.3d 270, 277-278 (FIa. l' DCA 2010) (standing recognized under action brought pursuant to sectioll 163.3215 where plaintiffs mailltained "an active and coiltilluing connection to the affected land" or were "members of an organization whose primary purpose is the study and protection of natural resources and the advocacy of sound laild use aild growth management policies affecting the ellviromnent"); Homosassa River Alliance, Inc. v. Citrus County, 2 So.3d 329 (Fla. 5th DCA 2008) (standing recognized where environmental group and area landowners brought action against county under section 163.3215);Southwest Ranches Homeowners Association, Inc. v. County of Broward, 502 So.2d 931, 934-935 (Fla. 4t6 DCA 1987) (standing analysis under section 163.3215 where homeowner's association was determined to have a more direct stake in the matter than would a group of concerned citizens and taxpayers with a general interest in preserving the environmental character of the area where association was a group of property owners whose land adjoined the proposed development and stood to be directly affected by the alleged aspects of the development which are claimed to be inconsistent with the comprehensive plan).

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Hanlcins, 169 So.2d at 528. This is a qualitatively different test from the general test for a motion to dismiss for failure to state cause of action which tests whether the pleader could prove any set of facts whatsoever in support of the claim. WausauIns. Co. v. Haynes,683 So.2d 1123, 1124

(Fla. 4th DCA 1996)2

A.PlaintjffDoes Not State Causes ofAction for Declaratory Judgment

30. Plaintiff does not properly allege in Counts I and 11 of the Complaint the legal basis upon which it seeks declaratory judgments. Although the Complaint refers generally to Chapter

86, Florida Statutes, the Complaint is deficient in that it omits throughout any mention of the specific statutory authority or sub -section under which relief is pursued. Notice pleading is not the standard in Florida and Defendant Lawson should not be required to infer the statutory basis of the very cause of action when the subject Chapter sets forth multiple avenues of potential relief that are available in different scenarios.Sections 86.021-86.061, Florida Statutes.Plaintiff has the burden to articulate a cognizable claim, including the underlying legal basis of the applicable cause of action, and to plead allegations which reflect entitlement to a declaration of rights. In this regard, this fundamental legal sufficiency determination fails at the outset. Defendant Lawson should not be required to assume or guess the specific statutory proviso under which declaratory relief is sought by Plaintiff when Chapter 86 sets forth different and various scenarios.

In assessing the sufficiency of motion to dismiss a complaint for failure to state cause of action in a non -declaratory judgment context, the material allegations of the complaint are taken as true and all reasonable inferences drawn therefrom must be construed in favor of the non-moving party.The Florida Bar v. Greene, 926 So.2d 1195, 1199 (Fla. 2006); Hembree v. Reaves, 266 So.2d 362, 362 (Fla. Pt DCA 1972); Fletcher v. Williams, 153 So.2d 759, 760 (Fla. 1° DCA 1963); UnitedAuto. Ins. Co. v. Law Offices of Michael I. Libman, 46 So.3d 1101 (Fla. 3 DCA 2010). In such a scenario, a motion to dismiss for failure to state a cause of action tests whether the plaintiff has stated a cause of action, not whether the plaintiff will prevail at trial.United Auto. Ins. Co., 46 So.3d at 1103. The trial court must confine itself strictly to the allegations that are within four corners of complaint.Pizzi v. Central Bank & Trust Co., 250 So.2d 895, 897 Fla. 1971); McWhirter, Reeves, McGothlin, Davidson, Rief & Bakas, PA. v. Weiss, 704 So.2d 214, 215 (Fla. 2,,d DCA 1998).

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31. In order to withstand a motion to dismiss, a complaint for declaratory relief must allege facts showing that there is bona fide, actual, present, and practical need for a declaration.

In Okaloosa island Leaseholders Ass 'ii, Inc. v. Okaloosa Island Authority, 308 So.2d 120, 122-

123 (Fla. 1st DCA 1975), the First District Court of Appeal reversed a declaratory judgment that had been granted by the trial court and remanded the case for dismissal and stated:

While the existence of an actual controversy is not necessarily a prerequisite to the activation of the courts jurisdiction over a declaratory judgment action, it is clear that there must be a bona fide dispute between contending parties as to a present justiciable issue in order to invoke the declaratory judgment act. (See Brautigam v, MacVicar, Sup.Ct,Fla.1954, 73 So.2d 863.) Stated another way, to withstand a motion to dismiss, a complaint for declaratory relief must allege facts showing that there is a bona fide, actual, present and practical need for a declaration (May v. Holley, Sup.Ct.Fla.1952, 59 So.2d 636). The complaint sub judice does not meet that test. Indeed, the complaint clearly shows that there is no actual and present need for a declaration: The issue posed in the complaint involved only a mere possibility of a dispute in the future. The situation in the case sub judice is analogous to that in Bryant v. Gray 70 So.2d 581 (Fl. Sup. Ct. 1954)]... wherein the Supreme Court of Florida, holding that the complaint should have been dismissed for lack of a bona fide, actual, present need for a declaration, said: 'His question is hypothetical and is too remote as to time and too uncertain as to contingency. He does not allege that hewillbe nominated or elected to either the unexpired term or a full term. There is no certainty that he will be.

Okaloosa Island Leaseholders Ass'n, Inc., 308 So.2d at 122 (Case references retained). The court cited to numerous longstanding decisions of the Florida Supreme Court in support of its directive to the trial court to dismiss the plaintiff's action as the alleged dispute was hypothetical in nature, lacking in certainty, and rooted in only a mere possibility of eventualizing in the future.

32. Just as in Okaloosa Island Leaseholders Ass 'ii, Inc., there is no bona .fide, actual, present, and practical need for a declaration by the court in the present matter. There is no present injury or threat of harm that implicates the Department and requires adjudication by the court in the form of declaratory relief related to Chapter 20 19-165, Laws of Florida and the recently added, facially neutral prevailing party fee statute.Under section 163.3215, as currently written, the

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Department will never be a party to a challenge to a local development order unless it decides to initiate an action against a local government entity and challenge a local development order, While that situation is not known to have ever happened, it is simply not conceivable that the Department would find itself as an opposing party to 1000 Friends in an action filed under section 163.32 15,

Florida Statutes,

33. Further, section 86.091, Florida Statutes, states that:

When declaratory relief is sought, all persons may be made parties who have or claim any interest which would be affected by the declaration. No declaration shall prejudice the rights of persons not parties to the proceedings, In any proceeding concerning the validity of a county or municipal charter, ordinance, or franchise, such county or municipality shall be made a party and shall be entitled to be heard. If the statute, charter, ordinance, or franchise is alleged to be unconstitutional, the Attorney General or the state attorney of the judicial circuit in which the action is pending shall be served with a copy of the complaint and be entitled to be heard.

Section 86.091, Florida Statutes. (Emphasis supplied). As concerning Chapter 119-165, Laws of

Florida and its content, Defendant Lawson is not an adverse party to 1000 Friends and is therefore not a proper party to this lawsuit, as he would not be affected in any present, real, or concrete way by any decree that might be issued relative to this matter.8 Defendant Lawson is named in this lawsuit, which challenges the constitutionality of a facially neutral prevailing party attorney fee provision recently incorporated into section 163.3215 on single subject rule and substantive due process grounds, solely because he is "the Executive Director of the Department of Economic

Opportunity, and is the head of the state land planning agency that administers Chapter 163,

Florida Statutes, portions of which are challenged as unconstitutional in this action." Complaint at 23.In his capacity as Executive Director of the Department, Defendant Lawson does not

8This is apparent from the fact that of the various provisions of Chapter 119-165, oniy Section 4, which amends section 163.3180, Florida Statutes, concerning "Concurrency," sets forth any type of affirmative role for the Department of Economic Opportunity - and that role is limited.

iE1

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implement section 163.3215 as repeatedly suggested by Plaintiff in the Complaint. Neither the

Department nor Defendant Lawson has any cognizable interest that can be affected in any way by any declaratory judgment that might be issued by the court in any action that might hypothetically be filed pursuant to section 163.32 15 now or in the future. Even if every allegation in Counts I and II are taken as true, and a declaratory judgment is obtained, the relief requested by Plaintiff cannot and would not materialize as Defendant Lawson and the Department are unaffected by and removed from considerations relative to prevailing party attorney fees in local government development order consistency challenge actions under section 163.3215. The Department takes no actions involving the award of attorneys' fees to a prevailing party and the Department has no interest that would be affected by the entry of the decree requested by the Plaintiff. See supra,

Treasure Chest Poker, LLC, 238 So. 3d at 341 (reversing a trial court's declaratory judgement for lack of subject matter jurisdiction, with instructions to dismiss complaint with prejudice, because plaintiff failed to allege a bona fide dispute between the parties and was not entitled to bring a declaratory judgement action).9

34. Accordingly, Plaintiff has failed to state a cause of action for declaratory relief and

Counts I and II of the Complaint should be dismissed.

B, Plaintjff Does Not State Causes ofAction for Injunctive Relief

35. Plaintiff does not properly allege in Counts I and II of the Complaint the legal basis upon which it seeks temporary and permanent injunctive relief.In Counts I and II of Plaintiff's

Complaint, injunctive relief is sought pursuant to "Chapter 60, Florida Statutes" to enjoin

See also supra, Apthorp, 162 So. 3d at 24 1-242 (vacating a trial court's declaratory judgement on constitutional claim, with instructions to dismiss, due to plaintiff's failure to raise a justiciable controversy with the defendant state agency); Florida Consumer Action Network, 830 So.2d at 154 (reversing summary judgment granted in favor of a citizen's group, with instructions to dismiss with prejudice, in declaratory judgment constitutional challenge where plaintiffs failed to allege an appropriate justiciable controversy).

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Defendant Lawson from "implementing" the challenged attorney fee provision. No subsection of the chapter is presented as a specific statutory vehicle under which Plaintiff pursues injunctive relief, although numerous subsection of Chapter 60 set forth various alternative scenarios whereby injunctive relief may be actionable. Sections 60.0 1-60.08, Florida Statutes.

36. Although the Complaint refers generally to Chapter 60, Florida Statutes, the

Complaint is deficient in that it omits throughout any mention of the specific statutory authority or sub -section under which injunctive relief is pursued. Notice pleading is not the standard in

Florida and Defendant Lawson should not be required to infer the statutory basis of the very cause of action when the subject Chapter sets forth multiple avenues of potential relief that are available in different scenarios.It is noteworthy that none of the scenarios set forth in Chapter 60 would even be facially applicable to the present matter, Plaintiff has the burden to articulate a cognizable claim, including the underlying legal basis of the applicable cause of action, and to plead allegations which reflect entitlement to relief.In this regard, this fundamental legal sufficiency determination as to injunctive relief fails at the outset. Defendant Lawson should not be required to assume or guess the specific statutory proviso under which injunctive relief is sought by

Plaintiff.

37. Further, with regard to temporary injunctions, Florida Rule of Civil Procedure

1.610 states as follows:

(a) Temporary Injunction. (1) A temporary injunction may be granted without written or oral notice to the adverse party only if: A) it appears from the specific facts shown by affidavit or verified pleading that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and (B) the movant's attorney certifies in writing any efforts that have been made to give notice and the reasons why notice should not be required. (2) No evidence other than the affidavit or verified pleading shall be used to support the application for a temporary injunction unless the adverse party appears

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at the hearing or has received reasonable notice of the hearing, Every temporary injunction granted without notice shall be endorsed with the date and hour of envy and shall be filed forthwith in the clerk's office and shall define the injury, state findings by the court why the injury may be irreparable, and give the reasons why the order was granted without notice if notice was not given. The temporary injunction shall renmin in effect until the further order of the court,

Fl.R.Civ.P. 1.610. (Emphasis supplied). As applied to the instant matter, Plaintiff's Complaint is noticeably deficient in that Plaintiff has not provided an affidavit or verified pleading required for the issuance of a temporary injunction under the Florida Rules of Civil Procedure.'°

38. Indeed, whether it be in the context of temporary or permanent injunctive relief as sought in Counts I and II of the Complaint, Plaintiff has not even articulated any injury or harm that would result from any specific action of the Department or Defendant Lawson. As stated supra, and contrary to Plaintiff's assertions, neither the Department nor Defendant Lawson implements section 163.3215 or its recently added facially neutral prevailing party attorney fee provision. Neither the Department nor Defendant Lawson determine the propriety of development orders under section 163.3215, and the local government development order consistency challenge process plays out in the courts without the involvement of either. The Department will never be a party to a challenge to a development order under the statute as written and it is not foreseeable that it would be adverse to 1000 Friends in the event it ever initiated a consistency challenge under the section 163.32 15. As Defendant Lawson has no interest that could be enjoined in relation to the requested relief, if an injunction were issued, the relief requested would simply not materialize.

10Significantly, Counts I and II of the Plaintiff's Complaint seek only statutory injunctions pursuant to "Chapter 60, Florida Statutes." Plaintiff makes no claim for a common law temporary injunction, the requirements of which are well established in the case law. Teleinundo Media, LLC v. Mintz, 194 So.3d 434, 435-436 (Fla. 3" DCA 2016) ("It is well established that a temporary injunction lies when five requirements are satisfied: (1) the substantial likelihood of success on the merits, (2) the likelihood of irreparable harm, (3) the unavailability of an adequate remedy at law, (4) the threatened injury outweighs the possible harm, and (5) and the issuance of the temporary injunction will not disserve the public interest"); Genchi v. Lower Florida Keys Hospital, 45 So.3d 915, 918 (Fla. 3rd DCA 2010); Hues v. Auto Bahn Federation, Inc., 498 So.2d 997, 998 (Fla.4th DCA 1986).

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The entry of the injunctive relief requested by the Plaintiff would have no effect on the operations of the Department.

39. Because the fundamental prerequisites required to state a valid claim for entitlement to injunctive relief are absent, Counts I and II of Plaintiff's Complaint for injunctive relief should be dismissed for failure to state a cause of action.

IV. Failure to Plead Ultimate Facts

40. Florida Rule of Civil Procedure 1.110 (b) concerns "Claims for Relief' and requires that:

A pleading which sets forth a claim for relief, whether an original claim, crossclaim, or third -party claim must state a cause of action and shall contain... (2) a short and plain statement of the ultimate facts showing that the pleader is entitled to relief...

Fl.R.Civ.P. 1.110 (b). (Emphasis supplied). Plaintiff's Complaint should be dismissed for failure to plead ultimate facts that would support, or even tend to support, a claim for the relief requested as required by Rule 1.110 (b)(2).

41. In Maiden v. Carter, 234 So.2d 168 (Fla Pt DCA 1970), an estate proceeding, the court affirmed the dismissal of an amended third -party complaint. Maiden v. Carter, 234 So.2d at

171. In so doing, the court stated that it is a fundamental principle of pleading that the complaint, to be sufficient, must allege ultimate facts as distinguished from legal conclusions which, ifproved, would establish a cause of action for which relief may be granted. Id. at 170. The court observed that the amended complaint simply alleged that defendant received assets from an estate to which there was no lawful claim or entitlement, but no facts were alleged to support such a conclusion.

Id. The complaint was silent with respect to the nature or value of the assets received by defendant, the time they were received, from whom they were received, or the circumstances surrounding their receipt.Id. As a result, the complaint was deemed vague, indefinite, and uncertain and

10001000 FRIENDSFRIENDS OF FLORIDA INC vs. LAUREL M LEELEE LT. CASE NO: 2019 CACA 002215002215 HT. CASE NO: 1D20-21351D20-2135

formulating a response thereto was determined to be virtually impossible. Id. See Doyle v. Flex,

210 So.2d 493, 494-495 (Fla. 4th DCA 1968) (affinning the dismissal with prejudice of a "fatally defective" second amended complaint and stating that mere legal conclusions inserted in a complaint are insufficient to state a cause of action unless substantiated by allegations of ultimate fact, which, if established by competent evidence, would support a decree granting the relief sought); Frugoli v. Winn -Dixie Stores, Inc., 464 So.2d 1292, 1293 (Fla. 1t DCA 1985) (affirming an order of dismissal as to two of four counts where complaint failed to state a cause of action and complaint did not contain sufficient ultimate facts to which appellees could adequately respond).

42. Similarly, in Beckler v. hoffman, 550 So.2d 68 (Fla. 5th DCA 1989), an action for gross negligence against co -employees, the allegations of the complaint were found to be "too general and vague and conclusory and therefore, insufficient" under Florida Rule of Civil

Procedure 1.1 10(b)(2). Beckler v. hoffman, 550 So.2d at 70. The court explained that allegations can be made on three levels:1) "a description of the evidence itself," 2) "a statement of ultimate facts," or 3) "a conclusion of fact or law," and stated that, for purposes of pleading, conclusory allegations are wholly insufficient. Id. "[M]atters must be alleged with sufficient particularity so that a trial judge in reviewing the ultimate facts alleged may rule as a matter of law whether or not the facts alleged are sufficient as the factual basis for the inferences the pleader seeks to draw and are sufficient to state a cause of action." Id, at 71.

43. In the case at bar, as a reflection of the absence of a bona fidc, actual, present justiciable case or controversy or dispute (see supra), and consistent with each of the above cited authorities, Plaintiff's Complaint is devoid of allegations which comply with the ultimate fact pleading requirement of Rule 1.11 0(b)(2).Plaintiff alleges that Chapter 2019-165 "undermines the intent, purpose and rationale of the Act.., by chilling, frustrating, and punishing the ability of

10001000 FRIENDSFRIENDS OF FLORIDA INC vs. LAUREL M LEELEE LT. CASE NO: 2019 CACA 002215002215 HT. CASE NO: 1D20-21351D20-2135

locally affected citizens to challenge local government decisions that are not consistent with the local Comprehensive Plan." Complaint at13. Plaintiff asserts that it has "brought cases under the Consistency Challenge Statute and supported citizens and local governments in such cases" in the past and that Chapter 20 19-165 "makes it economically infeasible for 1000 Friends and its individual members to challenge development orders.., and unreasonably chills the ability of 1000

Friends to implement its corporate purposes to further comprehensive planning in Florida through

litigation." Complaint atJfl 20, 25.Plaintiff endeavors to allege in a disconnected manner that

Defendant Lawson "is the head of the executive agency that is the state land planning agency that administers Chapter 163, Florida Statutes." Complaint at23. Further, the mere statement that a

"genuine and current dispute" exists and that there is an "imminent threat of harm" does not make it so. Complaint atfl27-28. Plaintiff does not even state in the Complaint the specific statutory authorities or sub -sections under which it pursues alleged statutory causes of action, opting instead to generally refer to Chapters 60 and 86, Florida Statutes, each of which contemplate multiple avenues of relief in different scenarios. Plaintiff has not articulated a set of facts that demonstrate entitlement to relief or that provide sufficient support as a factual basis for the inferences the pleader seeks to draw.Plaintiff's conclusory allegations are not ultimate facts on which the pleading of an alleged legal dispute can rest.

44. As a result, Plaintiff's Complaint is "fatally defective" and should be dismissed with prejudice for failure to comply with the pleading requirement of Rule 1.110 (b)(2).Doyle,

210 So.2d at 495.

WHEREFORE, Defendant Lawson respectfully requests that this court dismiss Plaintiff's

Complaint with prejudice, or altematively dismiss counts I and II of Plaintiff's Complaint as discussed herein, award costs as allowed by law, and grant all other relief it deems just and proper.

10001000 FRIENDSFRIENDS OF FLORIDA INC vs. LAUREL M LEELEE LT. CASE NO: 2019 CACA 002215002215 HT. CASE NO: 1D20-21351D20-2135

Certificate of Good Faith Conference

The undersigned counsel for Defendant Lawson, Mark A. Buckles, Esq., hereby certifies that on November 1, 2019 he conferred with counsel for Plaintiff, Terrell K. Arline, Esq., and that counsel have been unable to agree on the resolution of this motion. Mr. Arline further indicated he would be filing a response.

Certificate of Service

I hereby certify that on November 1, 2019, a true and correct copy of the foregoing was electronically filed with the court via the court's c -filing system and also c -mailed to the counsel or persons listed on the attached service list.

/s/Mark A.Buckles William E. Chorba, Esq. Florida Bar No. 58370 Mark A. Buckles, Esq. Florida Bar No. 0498971 Rebekah A. Davis, Esq. Florida Bar No. 42339 Florida Department of Economic Opportunity 107 E. Madison Street CaIdwell Building, MSC -1 10 Tallahassee, FL 32399 Tel. (850) 245-7150 Fax. (850) 921-3230 Biickies1deo.m.orida.com ekah1)avis1ec.fflvflQridacorn DEOeservcdemf1oridIcorn

10001000 FRIENDSFRIENDS OF FLORIDA INC vs. LAUREL M LEELEE LT. CASE NO: 2019 CACA 002215002215 HT. CASE NO: 1D20-21351D20-2135

Service List:

Jane West, Esquire Policy and Planning Director 1000 Friends of Florida 24 Cathedral Place, Suite 504 St. Augustine, FL 32084 Office: (904) 471-0505 f.or Counsel for 1000 Friends of Florida

Terrell K. Arline, Esquire Terrell K. Arline, Attorney at Law 1819 Tamiami Drive Tallahassee, FL 32301 (850) 321-8726 ailcom terreilarlin claw, corn Co -Counsel for 1000 Friends of Florida

Richard Grosso, Esq. Richard Grosso, P.A. 6919 W. Broward Boulevard Plantation, FL 33317 Mail box 142 con 954-801-5662 Co -Counsel for 1000 Friends of Florida

Joseph W. Little, Esq. 3731 NW 13th Place Gainesville, FL 32605 352-372-5955 !env'nail.con1 Co -Counsel for 1000 Friends of Florida

Cc: Honorable John C. Cooper 2Judicial CircuitLeon County 301 South Monroe Street, # 365B Tallahassee, FL 32301

10001000 FRIENDSFRIENDS OF FLORIDA INC vs. LAUREL M LEELEE LT. CASE NO: 2019 CACA 002215002215 HT. CASE NO: 1D20-21351D20-2135

Filing # 102418913 E -Filed 01/29/2020 01:09:44 PM

IN THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT IN AND FOR LEON COUNTY, FLORIDA

1000 FRIENDS OF FLORIDA, iNC., a Florida not for Profit Corporation; and ROBERT J. HOWELL,

Plaintiffs,

V. CaseNo.: 2019CA2215

THE STATE OF FLORIDA, LAUREL M. LEE, in her Official Capacity as Secretary of State of Florida, and KEN LAWSON, in his Official Capacity as the Executive Director of the Florida Department of Economic Opportunity;

Defendants.

COME NOW the Plaintiffs, 1000 FRIENDS OF FLORIDA, INC. ("1000 Friends") and

ROBERT J. HOWELL, by and through undersigned counsel and hereby file this amended

complaint against THE STATE OF FLORIDA, LAUREL M. LEE, in her Official Capacity as

Secretary of State of Florida and KEN LAWSON, in his Official Capacity as the Executive

Director of the Florida Department of Economic Opportunity, and state as follows:

INTRODUCTION

On May 3, 2019, the Florida Legislature passed the "An act relating to community

development and housing" as CS/CS/HB 7103, enacted as Chapter 20 19-165, Laws of Florida.

2. Chapter 20 19-165, Laws of Florida is hereinafter referred to as "the Law." A copy

of the Law is attached as Exhibit A.

10001000 FRIENDSFRIENDS OF FLORIDA INC vs. LAUREL M LEELEE LT. CASE NO: 2019 CACA 002215002215 HT. CASE NO: 1D20-21351D20-2135

4. Notably, at 12:10 P.M. on May 3, 2019-the last scheduled day of the 2019

Legislative Session-an amendment to the Bill was submitted to amend Section 163.3215 (8)(c),

Florida Statutes to add the following provision:

6. The Consistency Challenge Statute is the sole mechanism under which citizens in

Florida can challenge development orders approved by their local government that are not

"consistent" with the local government's Comprehensive Plan.i Section 163.3215 (1), Fla. Stat.

(2019). For example, in Pinecrest Lakes, Inc. v. Shidel, 795 So. 2d 191, 200 (Fla. 4th DCA 2001), rev, den. 821 So. 2d 300 (Fla. 2002), the court observed that "citizen enforcement [under the

Consistency Challenge Statute] is the primary tool for insuring consistency of development decisions with the Comprehensive Plan." 795 So.2d at 202.

1 163.3194Legal status of comprehensive plan. (1) (a)After a comprehensive plan, or element or portion thereof has been adopted in conformity with this act, all development undertaken by, and all aethin taken in regard to development orders by, governmental agencies in regard to land covered by such plan or element shall he consistent with such plan or element as adopted. (Emphasis added.)

10001000 FRIENDSFRIENDS OF FLORIDA INC vs. LAUREL M LEELEE LT. CASE NO: 2019 CACA 002215002215 HT. CASE NO: 1D20-21351D20-2135

7. The intent of the Community Planning Act that was amended by the Bill is "that adopted comprehensive plans shall have the legal status set out in this act and that no public or private development shall be permitted except in conformity with comprehensive plans, or elements or portions thereof, prepared and adopted in conformity with this act." Section 163.3 161

(6), Fla. Stat. The Act mandates that all local governments adopt and maintain a comprehensive plan to govern future land development. § 163.3 167(1)(b); § 163.3 167(2).

163.3 161(6), Fla. Stat. (emphasis added). The Bill does not change this intent.

9. Florida courts have interpreted these statutory provisions to establish the legislative intent and scheme that a "comprehensive plan is... aconstitution for all future development ...."

Machado v. Musgrove, 519 So.2d 629, 631 (Fla. 3d DCA 1987).

10. To effectuate this intent, Section 163.3215(2), Fla.Stat., grants standing to challenge development orders for inconsistency with adopted comprehensive plans to:

11. This statutory grant of standing has been interpreted to grant "significantly enhanced standing to challenge the consistency of development decisions with the Comprehensive

Plan" compared with prior standing law. Pinecrest Lakes, Inc., v. Shidel, 795 So. 2d 191, 197 (Fla.

10001000 FRIENDSFRIENDS OF FLORIDA INC vs. LAUREL M LEELEE LT. CASE NO: 2019 CACA 002215002215 HT. CASE NO: 1D20-21351D20-2135

(emphasis added); See, Education Development Center, Inc. v. Palm Beach County, et al., 751

So.2d 621, 623 (Fla. 4th DCA 1999) (holding that § 163.3215 is a remedial statute and should thus be liberally construed to advance the intended remedy.)

12. While interpreting and enforcing that intent, the Florida Supreme Court established a "strict scrutiny" standard of judicial review that requires a strict showing by the proponent of a development order that fully complies of a comprehensive plan. BoardofCounty Commissioners ofBrevard County v. Snyder, 627 So.2d 469, 475-476 (Fla. 1993). Courts have noted that "the clear legislative intent to mandate intelligent, uniform growth management... cannot beachieved without meaningful review in lawsuits brought under the Act."Southwest Ranches

Homeowners Assoc., Inc. v. CountyofBroward, 502 So.2d 931, 936 (Fla. 4th DCA 1987)

(emphasis added).

14. This action challenges the constitutionality of the Law based on the "single subject rule" set forth in Article III, Section 6, Florida Constitution, which states:

Laws. Every law shall embrace but one subject and matter properly connected therewith, and the subject shall be briefly expressed in the title. No law shall be revised or amended by reference to its title only. Laws to revise or amend shall set out infullthe revised or amended act, section, subsection or paragraphofa subsection. The enacting clauseofevery law shall read: "Be It Enacted by the Legislatureofthe State ofFlorida:"

10001000 FRIENDSFRIENDS OF FLORIDA INC vs. LAUREL M LEELEE LT. CASE NO: 2019 CACA 002215002215 HT. CASE NO: 1D20-21351D20-2135

15. This action also challenges the constitutionality of the Law based on the substantive due process clause set forth in Article I, Section 9 of the Florida Constitution ("Due Process"),

Florida Constitution.

16. Plaintiffs seek declaratory and injunctive relief to invalidate the Law in order to prevent its egregious chilling effect on Florida citizens' ability to enforce the local Comprehensive

JURISDICTION AND VENUE

17. This is an action for declaratory judgment, injunction and other appropriate relief.

18. This Court has jurisdiction pursuant to Article V § 5(b) Florida Constitution and

Chapter 60 and Chapter 86, Florida Statutes.

19. Venue is appropriate in this Court because it sits within the physical jurisdiction of the Defendants' primary offices.

PARTIES

20. Plaintiff,1000 FRIENDS OF FLORIDA, INC. isa Florida not -for-profit corporation with its principal place of business at 308 North Monroe Street, Tallahassee, Florida

10001000 FRIENDSFRIENDS OF FLORIDA INC vs. LAUREL M LEELEE LT. CASE NO: 2019 CACA 002215002215 HT. CASE NO: 1D20-21351D20-2135

in growth management, land use, and environmental regulatory issues impacting the natural resources in Florida.Over the years, 1000 Friends has brought cases under the Consistency

Challenge Statute and supported citizens and local governments in such cases to further the comprehensive planning process.2

21. Plaintiff, ROBERT J. HOWELL, is an individual who owns and resides at real property located at 15638 Mahoney Drive, Spring Hill, Florida in Pasco County. On May 7, 2013,

Pasco County rendered Resolution No. 13-14 Constituting Conditional Use Permit Authorizing the Use of Property Described in Conditional Use Application No. CU1 1-22 for Class I Mining

Permit Amendment and A Conditional Use Modification (the Development Order). HOWELL challenged the Development Order in Pasco County Circuit Court on the basis that the proposed mining use would violate the Pasco County Comprehensive Plan because it would permit intense uses including blasts, explosives, loud noises, vibrations, shocks, dust and odors, diminished air quality, water quality impacts, roadway congestion and road safety hazards. The challenge against

Pasco County was brought under section 163.32 15(2), Florida Statutes.The mining applicant,

Outlaw Ridge, thereafter sought and obtained intervention status.After years of litigation, prevailing at the appellate court level and being remanded back to the circuit court, HOWELL was forced to dismiss the case on June 24, 2019 because of the passage of HB 7103 and the potential significant financial liability he personally risked by proceeding to trial.

2 For example, see Minto PBLH, LLC v. 1000 FriendsofFla., Inc., (Fla. 4th DCA 2017); Poulos v. Martin County, 700 So. 2d 163 (Fla. 4th DCA 1997); 1000 Friends ofFla. v. St. Johns County, 765 So. 2d 216 (Fla. 5th DCA 2000), Putnam County Envtl. Council, Inc. v. BoardofCounty Comm rs, 757 So. 2d 590 (5th DCA 2000); and Pinecrest Lakes, Inc. v. Shidel, 795 So. 2d 191 (Fla. 4t DCA 2001), rev, den. 821 So. 2d 300 (Fla. 2002); PinecrestLakes, Inc. et al, v. Shidel, 795 So. 2d 191 (Fla. 4th DCA 2001); andBd.ofCounty Comm'Rs v. Snyder, 627 So. 2d 469 (Fla. 1993).

10001000 FRIENDSFRIENDS OF FLORIDA INC vs. LAUREL M LEELEE LT. CASE NO: 2019 CACA 002215002215 HT. CASE NO: 1D20-21351D20-2135

22. Defendant LAUREL M. LEE, Secretary of State of Florida, is the official custodian of the laws of the state and the official with authority to expunge an unconstitutional statute upon order of a court. Sec. 15.02 Fla. Stat. (2019).

23. Defendant, KEN LAWSON, is the Executive Director of Department of Economic

Opportunity, and is the head ol the executive agency that is the state land planning agency that administers Chapter 163, Florida Statutes, portions of which are challenged as unconstitutional in this action. See Sections 163.3 164(20), 163.3184(6), Florida Statutes (2019).

FACTS

24. Section 7 of the Law, provides in part:

(c) The prevailing party in a challenge to a development order filed under subsection (3) is entitled to recover reasonable attorney fees and costs incurred in challenging or defending the order, including reasonable appellate attorney fees and costs.

25. This provision makes it economically infeasible for 1000 Friends and its individual members to challenge developments orders that are inconsistent with a local government's

Comprehensive Plan, and unreasonably chills the ability of 1000 Friends to implement its corporate purposes to further comprehensive planning in Florida through litigation under Section

163.32 15, Florida Statutes.

26. The Law contains no less than seventeen (17) separate various substantive sections, set forth as follows:

10001000 FRIENDSFRIENDS OF FLORIDA INC vs. LAUREL M LEELEE LT. CASE NO: 2019 CACA 002215002215 HT. CASE NO: 1D20-21351D20-2135

d.Section 4 amended Section 163.3 180(6) pertaining to impact fees and development orders. e.Section 5 amended Section 163.3 1801 pertaining to limitations on the amounts and uses of impact fees. f. Section 6 amended 163.3202(2) to add this provision: i) Incorporate preexisting development orders identified pursuant to s. 163.3167(3)

g.Section 7 amended Section 163.3215(8) to add inter alia this provision: The prevailing party in a challenge to a development order filed under subsection (3) is entitled to recover reasonable attorney fees and costs incurred in challenging or defending the order, including reasonable appellate attorney fees and costs. h.Section 8 amended Section 166.033 pertainingtothc time allotted municipalities to review development permits or development orders.

i. Section 9 amended Section 166.0415 1pertaining to the obligation of municipalities to assist in providing affordable housing.

10001000 FRIENDSFRIENDS OF FLORIDA INC vs. LAUREL M LEELEE LT. CASE NO: 2019 CACA 002215002215 HT. CASE NO: 1D20-21351D20-2135

o.Section 15 amended Section 718.112 to require bylaws of condominium associations to include a fire safety provision that complies with the Florida Fire Prevention Code. p.Section 16 amended Section 7181085 to delete "individual balconies" from the definition of commons areas in a provision pertaining to condominium associations and fire safety obligations. q.Section 17 directed the State Fire Marshall to "issue a data call to all local fire officials to collect data" pertaining to certain high-rise condominiums and submit the report to the Governor, the President of the Senate, and the President of the House of Representatives by September 1, 2020.

27. Plaintiffs have a genuine and current dispute with Defendants, is in doubt as to its rights, and requires a judgment of this Court to declare them and provide temporary and permanent injunctive relief and/ or other appropriate relief.

28. Plaintiffs face an imminent threat ofharm as a result of the prevailing party attorney fee provision in the Law.

29. If allowed to go into effect, the Law will cause irreparable injury to Plaintiffs.

30. Plaintiffs have no plain, speedy, and adequate remedy at law against the Law other than the relief requested in this Complaint.

COUNT I: DECLARATORY AND INJUNCTIVE RELIEF THE LAW VIOLATES OF ARTICLE III, SECTION 6,FLORIDA CONSTITUTION SINGLE SUBJECT REQUIREMENT

32. Plaintiffs reallege and incorporate the allegations in paragraphs 1 - 31 above.

10001000 FRIENDSFRIENDS OF FLORIDA INC vs. LAUREL M LEELEE LT. CASE NO: 2019 CACA 002215002215 HT. CASE NO: 1D20-21351D20-2135

33. This is an action for a declaratory judgment and for temporary and permanent injunctive relief pursuant to Chapter 60, Florida Statutes and Chapter 86, Florida Statutes.

34. Chapter 20 19-165, Laws of Fla. violates Article III, Section 6 of the Florida

Constitution ("Single Subject Requirement") because the Law contains more than a single subject.

35. The matters addressed by the Law are separate, dissociated, and unrelated to any discemable legislative intent to implement comprehensive legislation to address a single problem or issue.

37. Plaintiffs are entitled to declaratory, temporary, and permanent injunctive relief to invalidate the Law as a violation of the Single Subject Requirement.

WHEREFORE, for all of the reasons above, Plaintiffs ask that the Court:

A. Declare that the Law is unconstitutional as a violation of the Single Subject

Requirement of Art. III, Section 6, Florida Constitution.

B. Enter Temporary and Permanent Injunctive relief to order the Defendants LAUREL

M. LEE, as Secretary of State, and the STATE OF FLORIDA to expunge the Law from the Laws of Florida and prohibit the further codification of the Law into statute, and enjoin Defendant, KEN

LAWSON, from implementing the Law.

10001000 FRIENDSFRIENDS OF FLORIDA INC vs. LAUREL M LEELEE LT. CASE NO: 2019 CACA 002215002215 HT. CASE NO: 1D20-21351D20-2135

C. Award costs of this action to Plaintiffs; and

D. Grant Plaintiffs such other and further relief as the Court may deem just, proper, and necessary.

COUNT 2: DECLARATORY AND INJUNCTIVE RELIEF SECTION 7, SUBSECTION (8)( c), Ch. 2019-165, LawsofFla. VIOLATES ART. I, SECTION 9, FLORIDA CONSTITUTION SUBSTANTIVE DUE PROCESS

38. Plaintiffs reallege and incorporates the allegations in paragraphs 1 - 37 above.

39. This is an action for a declaratory judgment and for temporary and permanent injunctive relief pursuant to Chapter 60, Florida Statutes and Chapter 86, Florida Statutes.

40. The Community Planning Act, Chapter 163, Part II, Florida Statutes ("Act") mandates that all local governments adopt and maintain a comprehensive plan to guide future land development. 3

42. The Act strictly prohibits the approval of a development order that is inconsistent with a Comprehensive Plan. The law states:

1 63 .3194 Legal statusof comprehensive plan. -(1)(a)Aftera comprehensive plan, or element or portion thereof has been adopted..., till deielopnien1 undertaken by, and all actions taken in regard to development orders.., in regard to land covered by such plan or element shall he

consistent with such plan or element as adopted. (Emphasis added).5

3 Sections 163.3 167(l)(b), Florida Statutes and 163.3 167(2), Florida Statutes. 4Section 163.3 161(6), Florida Statutes.

5 See also, Section 163.3161(6), Florida Statutes. Section 163.3194(3), Florida Statutes defines the term "consistent" as follows:

(a) A development order.. .shall be consistent with the comprehensive plan f the land uses, densities or intensities, and other aspects ofdevelopmentpermitted. are compatible with

10001000 FRIENDSFRIENDS OF FLORIDA INC vs. LAUREL M LEELEE LT. CASE NO: 2019 CACA 002215002215 HT. CASE NO: 1D20-21351D20-2135

43. Under the Act, comprehensive plans are to be enforced oniy by local citizens, iwl by the state. (emphasis added) Section 163.3215, Florida Statutes provides the only mechanism to challenge development orders that are inconsistent with comprehensive plans and places the burden of enforcement on citizens.See, Pinecrest Lakes, 795 So. 2d at 191; Bd.ofTr. of the

Internal Improvement Trust Fund v. Seminole County Rd. of County Comm 'rs., 623 So. 2d 593

(Fla. 5th DCA 1993), rev, den. 634 So. 2d 622 (1994).6Under Chapter 163, Laws of Fla., comprehensive plans are to be enforced. Section 7, subsection (8)(c), Ch. 2019-165, Laws of Fla. violates Article I, Section 9 of the Florida Constitution ("Due Process") because Section 7, subsection (8)( c), Ch. 20 19-165, Laws ofFla. does not bear a reasonable relation to a permissible legislative objective in that it completely and irrationally undermines the stated intent, purpose, and chosen enforcement mechanism of Chapter 163, Part II, Florida Statutes (the "Community

Planning Act".)

44. Section 7, subsection (8)( c), Ch. 2019-165, Laws of Fla. violates the Due Process requirement becauseitisirrational, unrelated to any reasonable public purpose, thwarts achievement of the objectives set forth in the Act, and chills the citizen enforcement of the local

Comprehensive Plans contemplated by the Act by imposing the sanction of prevailing party attorneys' fees against Plaintiff and its members who bring suit under Section 163.3215, Florida

Statutes to enforce provisions of the local Comprehensive Plans.

and further the objectives, policies, land uses, and densities or intensities in the,., plan and if it meets all other criteria enumerated by the local government.

6The Consistency Cause of Action set forth in Section 163.3215(3), Florida Statutes provides for' . . a de novo action.., against any local government to challenge any... development order,.., which materially alters the use or density or intensity of use on aparticularpiece ofproperty which is not consistent with the comprehensive plan...."

10001000 FRIENDSFRIENDS OF FLORIDA INC vs. LAUREL M LEELEE LT. CASE NO: 2019 CACA 002215002215 HT. CASE NO: 1D20-21351D20-2135

45. Plaintiffs are entitled to declaratory and temporary and permanent injunctive relief to invalidate Section 7, subsection (8)( c), Ch. 2019-165,Laws of Fla.as a violation of the Due

Process Clause in Art. I, Section 9,Florida Constitution.

WHEREFORE, for all of the reasons above, Plaintiffs ask that the Court:

A. Declare that Section 7, subsection (8)(c), Ch. 2019-165, Laws ol Fla.is unconstitutional as a violation of the Due Process Clause in Art. I, Section 9, Florida Constitution.

B. Enter Temporary and Permanently Injunctive relief to order the Defendant

Defendant, KEN LAWSON, from implementing the Law.

C. Award costs of this action to Plaintiffs; and

D. Grant Plaintiffs such other and further relief as the Court may deem just, proper, and necessary.

COUNT 3: DECLARATORY AND INJUNCTIVE RELIEF

THE LAW VIOLATES ARTICLE 1 § S FLORIDA CONSTITUTION AND AMENEMENT I UNITED STATES CONSTITUTION ABRIDGES THE RIGHT TO PETITION GOVERNMENT FOR REDRESS OF GRIEVANCES

46. Plaintiffs reallage and incorporate the allegations in paragraphs 1-45 above.

47. The proposed amendment stated in paragraph 4 hereof imposes an unlimited financial risk upon the Plaintiffs to exercise their right to petition the government for redress of grievances which is protected both by Article I§ 5 of the Florida Constitution and the First

Amendment to the United States Constitution and chills the exercise of those rights.

10001000 FRIENDSFRIENDS OF FLORIDA INC vs. LAUREL M LEELEE LT. CASE NO: 2019 CACA 002215002215 HT. CASE NO: 1D20-21351D20-2135

48. Plaintiffs demand declaratory and temporary and permanent injunctive relief to invalidate Section 7, subsection (8)( c), Ch. 20 19-165, Laws ofFla. on grounds that said provision as stated unconstitutionally abridges rights guaranteed by Article I § 5 of the Florida Constitution and the First Amendment to the United States Constitution.

WHEREFORE, for all of the reasons above, Plaintiffs ask that the Court:

A. Declare that Section 7, subsection (8)( c), Ch. 2019-165, Laws of Fla. is unconstitutional as a violation of Article I § 5 olthe Florida Constitution.

B. Declare that Section 7, subsection (8)( c), Ch. 2019-165, Laws of Fla. is unconstitutional as a violation of the First Amendment to the United States Constitution.

C. Enter Temporary and Permanently Injunctive relief to order the Defendant

Defendant, KEN LAWSON, from implementing the Law.

D. Award costs of this action to Plaintiffs; and

E. Grant Plaintiffs such other and further relief as the Court may deem just, proper, and necessary.

Jane West, Esquire Policy and Planning Director 1000 Friends of Florida Fla.BarNo. 159417 24 Cathedral Place, Suite 504

10001000 FRIENDSFRIENDS OF FLORIDA INC vs. LAUREL M LEELEE LT. CASE NO: 2019 CACA 002215002215 HT. CASE NO: 1D20-21351D20-2135

St. Augustine, FL 32084 Office: (904) 471-0505 s1Lll10fiCofirg Counselfor 1000 Friends of Florida

/s/ TKA Terrell K. Arline, Esquire Terreli K. Arline Attorney at Law Fla. Bar. No. 306584 1819 Tamiami Drive Tallahassee, FL 32301 (850) 321-8726 tkari in c [email protected] temllari in ci aw.com Co -Counsel for 1000 Friends of Florida

Richard Grosso, Esq. Richard Grosso, P.A. Fla. Bar No. 0592978 6919 W. Broward Boulevard Plantation, FL 33317 Mailbox 142

954-801-5662 Co -Counsel for 1000 Friends of Florida

/s/ JWL Joseph W. Little, Esq. Fla. Bar No. 196749 3731 NW 13th Place Gainesville, FL 32605 iittieguiom352-372-5955 Co -Counsel for 1000 Friends of Florida

10001000 FRIENDSFRIENDS OF FLORIDA INC vs. LAUREL M LEELEE LT. CASE NO: 2019 CACA 002215002215 HT. CASE NO: 1D20-21351D20-2135

I hereby certify that a copy of the above and foregoing has been furnished to all Counsel via the Court's E -Portal system on this 29th day of January, 2020.

Jane West, Esquire Policy and Planning Director 1000 Friends of Florida Fla.BarNo. 159417 24 Cathedral Place, Suite 504 St. Augustine, FL 32084 Office: (904) 471-0505 jriQOOfafiorg Counsel for 1000 Friends of Florida

10001000 FRIENDSFRIENDS OF FLORIDA INC vs. LAUREL M LEELEE LT. CASE NO: 2019 CACA 002215002215 HT. CASE NO: 1D20-21351D20-2135

EXHIBIT A

Chapter 2019-165, Laws of Florida

10001000 FRIENDSFRIENDS OF FLORIDA INC vs. LAUREL M LEELEE LT. CASE NO: 2019 CACA 002215002215 HT. CASE NO: 1D20-21351D20-2135

CHAPTER 2019-165

Committee Substitute for Committee Substitute for House Bill No. 7103 An act relating to community development and housing; amending s. 125.0 1055, F.S.; authorizing an inclusionary housing ordinance to require a developer to provide a specified number or percentage of affordable housing units to be included in a development or allow a developer to contribute to a housing fund or other alternatives; requiring a county to provide certain incentives to fully offset all costs to the developer of its affordable housing contribution; providing applicability; amending s. 125.022, F.S.; requiring that a county review the application for completeness and issue a certain letter within a specified period after receiving an application for approval of a development permit or development order; providing procedures for addressing deficiencies in, and for approving or denying, the application; providing applicability of certain timefrarnes; conforming provisions to changes made by the act; defining the term "development order"; amending s.163.3167, F.S.; providing requirements for a comprehensive plan adopted after a specified date and all land development regulations adopted to implement the comprehensive plan; amending s. 163.3180, F.S.; revising compliance requirements for a mobility fee -based funding system; requiring a local government to credit certain contributions, constructions, expansions, or payments toward any other impact fee or exaction imposed by local ordinance for public educational facilities; providing requirements for the basis of the credit; amending s.163.31801, F.S.; adding minimum conditions that certain impact fees must satisfy; requiring a local government to credit against the collection of an impact fee any contribution related to public education facilities, subject to certain requirements; requiring the holder of certain impact fee credits to be entitled to a certain benefit if a local government increases its impact fee rates; providing applicability; providing that the government, in certain actions, has the burden of proving by a preponderance of the evidence that the imposition or amount of certain required dollar -for -dollar credits for the payment of impact fees meets certain requirements; prohibiting the court from using a deferential standard for the benefit of the government; authorizing a county, municipality, or special district to provide an exception or waiver for an impact fee for the development or construction of housing that is affordable; providing that if a county, municipality, or special district provides such exception or waiver, it is not required to use any revenues to offset the impact; providing applicability; amending s. 163.3202, F.S.; requiring local land development regulations to incorporate certain preexisting development orders; amending s. 163.3215, F.S.; providing that either party is entitled to a certain summary procedure in certain proceedings; requiring the court to advance such cause on the calendar, subject to certain requirements; providing that the prevailing party in a certain challenge to a development order is entitled to certain

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10001000 FRIENDSFRIENDS OF FLORIDA INC vs. LAUREL M LEELEE LT. CASE NO: 2019 CACA 002215002215 HT. CASE NO: 1D20-21351D20-2135

Ch. 2019-165 LAWS OF FLORIDA Ch. 2019-165 attorney fees and costs; amending s.166.033, F.S.; requiring that a municipality review the application for completeness and issue a certain letter within a specified period after receiving an application for approval of a development permit or development order; providing procedures for addressing deficiencies in, and for approving or denying, the application; providing applicability of certain tirneframes; conforming provisions to changes made by the act; defining the term "development order"; amending s.166.04151, F.S.; authorizing an inclusionary housing ordinance to require a developer to provide a specified number or percentage of affordable housing units to be included in a development or allow a developer to contribute to a housing fund or other alternatives; requiring a municipality to provide certain incentives to fully offset all costs to the developer of its affordable housing contribution; providing applicability; amending s. 420.502, F.S.; revising legislative findings for a certain state housing finance strategy; amending s. 420.503, F.S.; conforming cross-references; defining the term "essential services personnel"; amending s. 420.5095, F.S.; deleting the definition of the term "essential services personnel"; amending s. 252.363, F.S.; providing that the declaration of a state of emergency issued by the Governor for a natural emergency tolls the period remaining to exercise the rights under a permit or other authorization for the duration of the emergency declaration; amending s. 553.791, F.S.; providing and revising definitions; revising legislative intent; prohibiting a local jurisdiction from charging fees for building inspections if the fee owner or contractor hires a private provider; authorizing the local jurisdiction to charge a reasonable administrative fee; revising the tirneframe within which an owner or contractor must notify the building official that he or she is using a certain private provider; revising the type of affidavit form to be used by certain private providers under certain circumstances; revising the timeframe within which a building official must approve or deny a permit application; specifying the timeframe within which the local building official must issue a certain permit or notice of noncompliance if the permit applicant submits revisions; limiting a building official's review of a resubmitted permit application to previously identified deficiencies; limiting the number of times a building official may audit a private provider, with exceptions; amending s. 718.112, F.S.; requiring condominium associations to ensure compliance with the Florida Fire Prevention Code; requiring associations to retrofit certain high-rise buildings with either a fire sprinkler system or an engineered life safety system as specified in the code; deleting a requirement for association bylaws to include a provision relating to certain certificates of compliance; extending and specifying the date before which local authorities having jurisdiction may not require completion of retrofitting a fire sprinkler system or a engineered life safety system, respectively; deleting an obsolete provision; providing applicability; amending s. 718.1085, F.S.; revising the definition of the term "common areas" to exclude individual balconies; extending the year before which the local authority having jurisdiction may not require retrofitting of common areas with handrails and guardrails; requiring the State Fire Marshal, by a certain date, to issue a data call to all local fire 2 CODING: Words strickcn are deletions; words underlined are additions.

10001000 FRIENDSFRIENDS OF FLORIDA INC vs. LAUREL M LEELEE LT. CASE NO: 2019 CACA 002215002215 HT. CASE NO: 1D20-21351D20-2135

Ch. 2019-165 LAWS OF FLORIDA Ch. 2019-165 officials to collect data on certain high-rise condominiums; specifying data that local fire officials must submit; requiring that all data be received and compiled into a certain report by a certain date; requiring that the report be sent to the Governor and the Legislature by a certain date; providing an effective date. Be It Enacted by the Legislature of the State of Florida: Section 1.Section 125.01055, Florida Statutes, is amended to read: 125.01055Affordable housing.- jJ Notwithstanding any other provision of law, a county may adopt and maintain in effect any law, ordinance, rule, or other measure that is adopted for the purpose of increasing the supply of affordable housing using land use mechanisms such as inclusionary housing ordinances. (2)An inclusionary housing ordinance may require a developer to provide a specified number or percentage of affordable housing units to be included in a development or allow a developer to contribute to a housing fund or other alternatives in lieu of building the affordable housing units. However. in exchange, a county must provide incentives to fully offset all costs to the developer of its affordable housing contribution. Such incentives may include, but are not limited to: (a)Allowing the developer density or intensity bonus incentives or more floor space than allowed under the current or proposed future land use designation or zoning: (b)Reducing or waiving fees, such as impact fees or water and sewer charges: or (c)Granting other incentives. (3)Subsection (2) does not apply in an area of critical state concern, as designated in s. 380.0552. Section 2.Section 125.022, Florida Statutes, is amended to read: 125.022Development permits and orders.- (1)Within 30 days after receiving an application for approval of a development permit or development order, a county must review the application for completeness and issue a letter indicating that all reciuired information is submitted or specifying with particularity any areas that are deficient. If the application is deficient, the applicant has 30 days to address the deficiencies by submitting the required additional information. Within 120 days after the county has deemed the application complete. or 180 days for applications that require final action through a quasi-judicial hearing or a public hearing, the county must approve, approve with conditions, or deny the application for a development permit or development order. Both parties 3 CODING: Words trickcn are deletions; words underlined are additions.

10001000 FRIENDSFRIENDS OF FLORIDA INC vs. LAUREL M LEELEE LT. CASE NO: 2019 CACA 002215002215 HT. CASE NO: 1D20-21351D20-2135

Ch. 2019-165 LAWS OF FLORIDA Ch. 2019-165 may agree to a reasonable request for an extension of time, particularly in the event of a force majeure or other extraordinary circumstance. An approval, approval with conditions, or denial of the application for a development permit or development order must include written findings supporting the county's decision. The timeframes contained in this subsection do not apply in an area of critical state concern, as designated in s. 380.0552.

Li -1-4When reviewing an application for a development permit or development order that is certified by a professional listed in s. 403.0877, a county may not request additional information from the applicant more than three times, unless the applicant waives the limitation in writing. Before a third request for additional information, the applicant must be offered a meeting to attempt to resolve outstanding issues. Except as provided in subsection 44, if the applicant believes the request for additional information is not authorized by ordinance, rule, statute, or other legal authority, the county, at the applicant's request, shall proceed to process the application for approval or denial. 24 When a county denies an application for a development permit !ii development order, the county shall give written notice to the applicant. The notice must include a citation to the applicable portions of an ordinance, rule, statute, or other legal authority for the denial of the permit or order. 434 As used in this section, the terms term "development permit"nd "development order" have Ka the same meaning as in s. 163.3 164, but does not include building permits. 44For any development permit application filed with the county after July 1, 2012, a county may not require as a condition of processing or issuing a development permit or development order that an applicant obtain a permit or approval from any state or federal agency unless the agency has issued a final agency action that denies the federal or state permit before the county action on the local development permit. )-54Issuance of a development permit or development order by a county does not in any way create any rights on the part of the applicant to obtain a permit from a state or federal agency and does not create any liability on the part of the county for issuance of the permit if the applicant fails to obtain requisite approvals or fulfill the obligations imposed by a state or federal agency or undertakes actions that result in a violation of state or federal law. A county shall attach such a disclaimer to the issuance of a development permit and shall include a permit condition that all other applicable state or federal permits be obtained before commencement of the development. LTh64This section does not prohibit a county from providing information to an applicant regarding what other state or federal permits may apply. 4 CODING: Words strickcn are deletions; words underlined are additions.

10001000 FRIENDSFRIENDS OF FLORIDA INC vs. LAUREL M LEELEE LT. CASE NO: 2019 CACA 002215002215 HT. CASE NO: 1D20-21351D20-2135

Ch. 2019-165 LAWS OF FLORIDA Ch. 2019-165 Section 3.Subsection (3) of section 163.3167, florida Statutes, is amended to read: 163.3167Scope of act.- (3) A municipality established after the effective date of this act shall, within 1 year after incorporation, establish a local planning agency, pursuant to s. 163.3174, and prepare and adopt a comprehensive plan of the type and in the manner set out in this act within 3 years after the date of such incorporation. A county comprehensive plan jshall be deemed controlling until the municipality adopts a comprehensive plan in accordance accord with this act. A comprehensive plan adopted after January 1, 2019. and all land development regulations adopted to implement the comprehensive plan must incorporate each development order existing before the comprehensive plan's effective date. may not impair the completion of a development in accordance with such existing development order, and must vest the density and intensity approved by such development order existing on the effective date of the comprehensive plan without limitation or modification. Section 4.Paragraph (i) of subsection (5) and paragraph (h) of subsection (6) of section 163.3 180, Florida Statutes, are amended to read: 163.3180Concurrency.- (5) (i)If a local government elects to repeal transportation concurrency, it is encouraged to adopt an alternative mobility funding system that uses one or more of the tools and techniques identified in paragraph (fD. Any alternative mobility funding system adopted may not be used to deny, time, or phase an application for site plan approval, plat approval, final subdivision approval, building permits, or the functional equivalent of such approvals provided that the developer agrees to pay for the development's identified transportation impacts via the funding mechanism implemented by the local government. The revenue from the funding mechanism used in the alternative system must be used to implement the needs of the local government's plan which serves as the basis for the fee imposed. A mobility fee -based funding system must comply with s. 163.31801 governing the dual rational ncxui tcct applicable to impact fees. An alternative system that is not mobility fee -based shall not be applied in a manner that imposes upon new development any responsibility for funding an existing transportation deficiency as defined in paragraph (h). (6) (h)1.In order to limit the liability of local governments, a local government may allow a landowner to proceed with development of a specific parcel of land notwithstanding a failure of the development to satisfy school concurrency, if all the following factors are shown to exist: 5 CODING: Words trickcn are deletions; words underlined are additions.

10001000 FRIENDSFRIENDS OF FLORIDA INC vs. LAUREL M LEELEE LT. CASE NO: 2019 CACA 002215002215 HT. CASE NO: 1D20-21351D20-2135

Ch. 2019-165 LAWS OF FLORIDA Ch. 2019-165

a.The proposed development would be consistent with the future land use designation for the specific property and with pertinent portions of the adopted local plan, as determined by the local government. b.The local government's capital improvements element and the school board's educational facilities plan provide for school facilities adequate to serve the proposed development, and the local government or school board has not implemented that element or the project includes a plan that demonstrates that the capital facilities needed as a result of the project can be reasonably provided. c.The local government and school board have provided a means by which the landowner will be assessed a proportionate share of the cost of providing the school facilities necessary to serve the proposed development. 2.If a local government applies school concurrency, it may not deny an application for site plan, final subdivision approval, or the functional equivalent for a development or phase of a development authorizing residential development for failure to achieve and maintain the level -of - service standard for public school capacity in a local school concurrency management system where adequate school facilities will be in place or under actual construction within 3 years after the issuance of final subdivision or site plan approval, or the functional equivalent. School concurrency is satisfied if the developer executes a legally binding commitment to provide mitigation proportionate to the demand for public school facilities to be created by actual development of the property, including, but not limited to, the options described in sub -subparagraph a. Options for proportionate -share mitigation of impacts on public school facilities must be established in the comprehensive plan and the interlocal agreement pursuant to s. 163.31777. a.Appropriate mitigation options include the contribution of land; the construction, expansion, or payment for land acquisition or construction of a public school facility; the construction of a charter school that complies with the requirements of s. 1002.33(18); or the creation of mitigation banking based on the construction of a public school facility in exchange for the right to sell capacity credits. Such options must include execution by the applicant and the local government of a development agreement that constitutes a legally binding commitment to pay proportionate -share mitigation for the additional residential units approved by the local government in a development order and actually developed on the property, taking into account residential density allowed on the property prior to the plan amendment that increased the overall residential density. The district school board must be a party to such an agreement. As a condition of its entry into such a development agreement, the local government may require the landowner to agree to continuing renewal of the agreement upon its expiration. b.If the interlocal agreement and the local government comprehensive plan authorize a contribution of land; the construction, expansion, or payment for land acquisition; the construction or expansion of a public 6 CODING: Words strickcn are deletions; words underlined are additions.

10001000 FRIENDSFRIENDS OF FLORIDA INC vs. LAUREL M LEELEE LT. CASE NO: 2019 CACA 002215002215 HT. CASE NO: 1D20-21351D20-2135

Ch. 2019-165 LAWS OF FLORIDA Ch. 2019-165 school facility, or a portion thereof; or the construction of a charter school that complies with the requirements of s. 1002.33(18), as proportionate - share mitigation, the local government shall credit such a contribution, construction, expansion, or payment toward any other impact fee or exaction imposed by local ordinance for public educational facilities the same need, on a dollar -for -dollar basis at fair market value. The credit must be based on the total impact fee assessed and not on the impact fee for any particular tvne of school. c.Any proportionate -share mitigation must be directed by the school board toward a school capacity improvement identified in the 5 -year school board educational facilities plan that satisfies the demands created by the development in accordance with a binding developer's agreement. 3.This paragraph does not limit the authority of a local government to deny a development permit or its functional equivalent pursuant to its home rule regulatory powers, except as provided in this part. Section 5.Section 163.31801, Florida Statutes, is amended to read: 163.31801Impact fees; short title; intent; minimum requirements: audits: challenges definitions; ordinances levying impact fees.- (1)This section may be cited as the "Florida Impact Fee Act." (2)The Legislature finds that impact fees are an important source of revenue for a local government to use in funding the infrastructure necessitated by new growth. The Legislature further finds that impact fees are an outgrowth of the home rule power of a local government to provide certain services within its jurisdiction. Due to the growth of impact fee collections and local governments' reliance on impact fees, it is the intent of the Legislature to ensure that, when a county or municipality adopts an impact fee by ordinance or a special district adopts an impact fee by resolution, the governing authority complies with this section. (3)At a minimum, an impact fee adopted by ordinance of a county or municipality or by resolution of a special district must satisfy all of the following conditions, at minimum: (a)Require that The calculation of the impact fee must be based on the most recent and localized data. (b)The local government must provide for accounting and reporting of impact fee collections and expenditures. If a local governmental entity imposes an impact fee to address its infrastructure needs, the entity must shall account for the revenues and expenditures of such impact fee in a separate accounting fund. (c)Limit Administrative charges for the collection of impact fees must be limited to actual costs. 7 CODING: Words strickcn are deletions; words underlined are additions.

10001000 FRIENDSFRIENDS OF FLORIDA INC vs. LAUREL M LEELEE LT. CASE NO: 2019 CACA 002215002215 HT. CASE NO: 1D20-21351D20-2135

Ch. 2019-165 LAWS OF FLORIDA Ch. 2019-165

(d)The local government must provide Require that noticentbe provided no less than 90 days before the effective date of an ordinance or resolution imposing a new or increased impact fee. A county or municipality is not required to wait 90 days to decrease, suspend, or eliminate an impact fee. (e)Collection of the impact fee may not be required to occur earlier than the date of issuance of the building permit for the property that is subject to the fee. (f)The impact fee must be proportional and reasonably connected to. or have a rational nexus with, the need for additional capital facilities and the increased impact generated by the new residential or commercial construction. (g)The impact fee must be proportional and reasonably connected to. or have a rational nexus with, the expenditures of the funds collected and the benefits accruing to the new residential or nonresidential construction. (h)The local government must specifically earmark funds collected under the impact fee for use in acquiring. constructing. or improving capital facilities to benefit new users. (i)Revenues generated by the impact fee may not be used. in whole or in part, to pay existing debt or for previously approved projects unless the expenditure is reasonably connected to. or has a rational nexus with, the increased impact generated by the new residential or nonresidential construction. (4)The local government must credit against the collection of the impact fee any contribution, whether identified in a proportionate share agreement or other form of exaction, related to public education facilities, including land dedication, site planning and design. or construction. Any contribution must be applied to reduce any education -based impact fees on a dollar -for - dollar basis at fair market value. (5)If a local government increases its impact fee rates, the holder of any impact fee credits, whether such credits are granted under s. 163.3180. s. 380.06. or otherwise, which were in existence before the increase. is entitled to the full benefit of the intensity or density prepaid by the credit balance as of the date it was first established. This subsection shall operate prospec- tively and not retrospectively. Audits of financial statements of local governmental entities and district school boards which are performed by a certified public accountant pursuant to s. 218.39 and submitted to the Auditor General must include an affidavit signed by the chief financial officer of the local governmental entity or district school board stating that the local governmental entity or district school board has complied with this section. 8 CODING: Words stricken are deletions; words underlined are additions.

10001000 FRIENDSFRIENDS OF FLORIDA INC vs. LAUREL M LEELEE LT. CASE NO: 2019 CACA 002215002215 HT. CASE NO: 1D20-21351D20-2135

Ch. 2019-165 LAWS OF FLORIDA Ch. 2019-165 1154In any action challenging an impact fee or the government's failure to provide required dollar -for -dollar credits for the payment of impact fees as provided in s. 163.3180(6)(h)2.b., the government has the burden of proving by a preponderance of the evidence that the imposition or amount of the fee or credit meets the requirements of state legal precedent ,or this section. The court may not use a deferential standard for the benefit of the government. (8) A county. municipality, or special district may provide an exception or waiver for an impact fee for the development or construction of housing that is affordable, as defined in s. 420.9071. If a county. municipality, or special district provides such an exception or waiver, it is not required to use any revenues to offset the impact. (9)This section does not apply to water and sewer connection fees. Section 6.Paragraph (j) is added to subsection (2) of section 163.3202, Florida Statutes, to read: 163.3202Land development regulations.- (2)Local land development regulations shall contain specific and detailed provisions necessary or desirable to implement the adopted comprehensive plan and shall at a minimum: (j)Incorporate preexisting development orders identified pursuant to s. 163.3167(3). Section 7.Subsection (8) of section 163.3215, Florida Statutes, is amended to read: 163.32 15Standing to enforce local comprehensive plans through development orders.- (8) In any proceeding under subsection (3). either rartv is entitled to the summary procedure provided in s. 51.011. and the court shall advance the cause on the calendar, subject to paragraph (b) or subsection (4), the Department of Legal Affairs may intervene to rcprcscnt the interests of the state. (b)Upon a showing by either party by clear and convincing evidence that summary procedure is inappropriate, the court may determine that summary procedure does not apply. (c)The prevailing party in a challenge to a development order filed under subsection (3) is entitled to recover reasonable attorney fees and costs incurred in challenrine or defendine the order. includinr reasonable appellate attorney fees and costs. Section 8.Section 166.033, Florida Statutes, is amended to read: 9 CODING: Words strickcn are deletions; words underlined are additions.

10001000 FRIENDSFRIENDS OF FLORIDA INC vs. LAUREL M LEELEE LT. CASE NO: 2019 CACA 002215002215 HT. CASE NO: 1D20-21351D20-2135

Ch. 2019-165 LAWS OF FLORIDA Ch. 2019-165 166.033Development permits and orders. (1)Within 30 days after receivinEr an application for approval of a development permit or development order, a municipality must review the application for completeness and issue a letter indicating that all required information is submitted or specifying with particularity any areas that are deficient. If the application is deficient, the applicant has 30 days to address the deficiencies by submitting the recuired additional information. Within 120 days after the municipality has deemed the application complete. or 180 days for applications that require final action through a quasi-judicial hearing or a public hearing, the municipality must approve, approve with conditions, or deny the application for a development permit or development order. Both parties may agree to a reasonable request for an extension of time, particularly in the event of a force majeure or other extraordinary circumstance. An approval, approval with conditions, or denial of the application for a development permit or development order must include written findings supporting the municipality's decision. The timeframes contained in this subsection do not apply in an area of critical state concern. as designated in s. 380.0552 or chapter 28-36. Florida Administrative Code. i-14 When reviewing an application for a development permit or development order that is certified by a professional listed in s. 403.0877, a municipality may not request additional information from the applicant more than three times, unless the applicant waives the limitation in writing. Before a third request for additional information, the applicant must be offered a meeting to attempt to resolve outstanding issues. Except as provided in subsection Li f44, if the applicant believes the request for additional information is not authorized by ordinance, rule, statute, or other legal authority, the municipality, at the applicant's request, shall proceed to process the application for approval or denial. L,3)k24 When a municipality denies an application for a development permit or development order, the municipality shall give written notice to the applicant. The notice must include a citation to the applicable portions of an ordinance, rule, statute, or other legal authority for the denial of the permit or order. As used in this section, the terms tcrm "development permit" ifild. "development order" have ha the same meaning as in s. 163.3 164, but d does not include building permits. For any development permit application filed with the municipality after July 1, 2012, a municipality may not require as a condition of processing or issuing a development permit or development order that an applicant obtain a permit or approval from any state or federal agency unless the agency has issued a final agency action that denies the federal or state permit before the municipal action on the local development permit. Issuance of a development permit or development order by a municipality does not in any way create any right on the part of an applicant 10 CODING: Words strickcn are deletions; words underlined are additions.

10001000 FRIENDSFRIENDS OF FLORIDA INC vs. LAUREL M LEELEE LT. CASE NO: 2019 CACA 002215002215 HT. CASE NO: 1D20-21351D20-2135

Ch. 2019-165 LAWS OF FLORIDA Ch. 2019-165 to obtain a permit from a state or federal agency and does not create any liability on the part of the municipality for issuance of the permit if the applicant fails to obtain requisite approvals or fulfill the obligations imposed by a state or federal agency or undertakes actions that result in a violation of state or federal law. A municipality shall attach such a disclaimer to the issuance of development permits and shall include a permit condition that all other applicable state or federal permits be obtained before commencement of the development. fl -64This section does not prohibit a municipality from providing information to an applicant regarding what other state or federal permits may apply. Section 9.Section 166.04151, Florida Statutes, is amended to read: 166.04151Affordable housing. - 1J Notwithstanding any other provision of law, a municipality may adopt and maintain in effect any law, ordinance, rule, or other measure that is adopted for the purpose of increasing the supply of affordable housing using land use mechanisms such as inclusionary housing ordinances. (2)An inclusionary housing ordinance may reQuire a developer to provide a specified number or percentage of affordable housing units to be included in a development or allow a developer to contribute to a housing fund or other alternatives in lieu of building the affordable housing units. However, in exchange. a municipality must provide incentives to fully offset all costs to the developer of its affordable housing contribution. Such incentives may include, but are not limited to: (a)Allowing the developer density or intensity bonus incentives or more floor space than allowed under the current or proposed future land use designation or zoning: (b)Reducing or waiving fees, such as impact fees or water and sewer charges or (c)Granting other incentives. (3)Subsection (2) does not apply in an area of critical state concern, as designated by s. 380.0552 or chapter 28-36, Florida Administrative Code. Section 10.Subsection (8) of section 420.502, Florida Statutes, is amended to read: 420.502Legislative findings.-It is hereby found and declared as follows: (8) It is necessary to create new programs to stimulate the construction and substantial rehabilitation of rental housing for eligible persons and families. 11 CODING: Words trickcn are deletions; words underlined are additions.

10001000 FRIENDSFRIENDS OF FLORIDA INC vs. LAUREL M LEELEE LT. CASE NO: 2019 CACA 002215002215 HT. CASE NO: 1D20-21351D20-2135

Ch. 2019-165 LAWS OF FLORIDA Ch. 2019-165

(b)It is necessary to create a state housing finance strategy to provide affordable workforce housing opportunities to essential services personnel in areas of critical state concern designated under s. 380.05. for which the Legislature has declared its intent to provide affordable housing, and areas that were designated as areas of critical state concern for at least 20 consecutive years before removal of the designation. The lack of affordable workforce housing has been exacerbated by the dwindling availability of developable land, environmental constraints, rising construction and insurance costs. and the shortage of lower -cost housing units. As this state's population continues to grow. essential services personnel vital to the economies of areas of critical state concern are unable to live in the communities where they work, creating transportation congestion and hindering their quality of life and community engagement. Section 11.Present subsections (18) through (42) of section 420.503, Florida Statutes, are redesignated as subsections (19) through (43), respectively, a new subsection (18) is added to that section, and subsection (15) of that section is amended, to read: 420.503Definitions.-As used in this part, the term: (15)"Elderly" means persons 62 years of age or older; however, this definition does not prohibit housing from being deemed housing for the elderly as defined in subsection 494 if such housing otherwise meets the requirements of subsection 2Sfl -194. (18)"Essential services personnel" means natural persons or families whose total annual household income is at or below 120 percent of the area median income, adjusted for household size, and at least one of whom is employed as police or fire personnel, a child care worker, a teacher or other education personnel. health care personnel. a public employee, or a service worker. Section 12.Subsection (3) of section 420.5095, Florida Statutes, is amended to read: 420.5095Community Workforce Housing Innovation Pilot Program.- (3)For purposes of this section, the term: (a)"Workforce housing" means housing affordable to natural persons or families whose total annual household income does not exceed 140 percent of the area median income, adjusted for household size, or 150 percent of area median income, adjusted for household size, in areas of critical state concern designated under s. 380.05, for which the Legislature has declared its intent to provide affordable housing, and areas that were designated as areas of critical state concern for at least 20 consecutive years prior to removal of the designation. (b)"Essential services personnel" means persons in need of affordable housing who arc employed in occupations or professions in which they are 12 CODING: Words strickcn are deletions; words underlined are additions.

10001000 FRIENDSFRIENDS OF FLORIDA INC vs. LAUREL M LEELEE LT. CASE NO: 2019 CACA 002215002215 HT. CASE NO: 1D20-21351D20-2135

Ch. 2019-165 LAWS OF FLORIDA Ch. 2019-165 considered essential scicco personnel, as defined by each county and eligible municipality within its respective local housing assistance plan pursuant to s. 420.9075(3)(a). e4"Public -private partnership" means any form of business entity that includes substantial involvement of at least one county, one municipality, or one public sector entity, such as a school district or other unit of local government in which the project is to be located, and at least one private sector for-profit or not -for-profit business or charitable entity, and may be any form of business entity, including a joint venture or contractual agreement. Section 13.Paragraph (a) of subsection (1) of section 252.363, Florida Statutes, is amended to read: 252.363Tolling and extension of permits and other authorizations.-

(1)(a)The declaration of a state of emergency issued by the Governorfca a natural emergency tolls the period remaining to exercise the rights under a permit or other authorization for the duration of the emergency declaration. Further, the emergency declaration extends the period remaining to exercise the rights under a permit or other authorization for 6 months in addition to the tolled period. This paragraph applies to the following: 1. The expiration of a development order issued by a local government. 2.The expiration of a building permit. 3.The expiration of a permit issued by the Department of Environ- mental Protection or a water management district pursuant to part IV of chapter 373. 4.The buildout date of a development of regional impact, including any extension of a buildout date that was previously granted as specified in s. 380. 06( 7)(c). Section 14.Subsection (1), paragraph (b) of subsection (2), and subsections (4) through (7) and (18) of section 553.791, Florida Statutes, are amended to read: 553.79 1Alternative plans review and inspection.- (1)As used in this section, the term: (a)"Applicable codes" means the Florida Building Code and any local technical amendments to the Florida Building Code but does not include the applicable minimum fire prevention and firesafety codes adopted pursuant to chapter 633. (b)"Audit" means the process to confirm that the building code inspection services have been performed by the private provider, including 13 CODING: Words strickcn are deletions; words underlined are additions.

10001000 FRIENDSFRIENDS OF FLORIDA INC vs. LAUREL M LEELEE LT. CASE NO: 2019 CACA 002215002215 HT. CASE NO: 1D20-21351D20-2135

Ch. 2019-165 LAWS OF FLORIDA Ch. 2019-165 ensuring that the required affidavit for the plan review has been properly completed and affixed to the permit documents and that the minimum mandatory inspections required under the building code have been performed and properly recorded. The tcrm does not mcan that the local building official may not is required to replicate the plan review or inspection being performed by the private provider, unless expressly authorized by this section. (c)"Building" means any construction, erection, alteration, demolition, or improvement of, or addition to, any structure or site work for which permitting by a local enforcement agency is required. (d)"Building code inspection services" means those services described in s. 468.603(5) and (8) involving the review of building plans as well as those services involvinr the review of site plans and site work eneineerinr plans or their functional equivalent, to determine compliance with applicable codes and those inspections required by law of each phase of construction for which permitting by a local enforcement agency is required to determine compliance with applicable codes. (e)"Duly authorized representative" means an agent of the private provider identified in the permit application who reviews plans or performs inspections as provided by this section and who is licensed as an engineer under chapter 471 or as an architect under chapter 481 or who holds a standard certificate under part XII of chapter 468. (f)"Immediate threat to public safety and welfare" means a building code violation that, if allowed to persist, constitutes an immediate hazard that could result in death, serious bodily injury, or significant property damage. This paragraph does not limit the authority of the local building official to issue a Notice of Corrective Action at any time during the construction of a building project or any portion of such project if the official determines that a condition of the building or portion thereof may constitute a hazard when the building is put into use following completion as long as the condition cited is shown to be in violation of the building code or approved plans. (g)"Local building official" means the individual within the governing jurisdiction responsible for direct regulatory administration or supervision of plans review, enforcement, and inspection of any construction, erection, alteration, demolition, or substantial improvement of, or addition to, any structure for which permitting is required to indicate compliance with applicable codes and includes any duly authorized designee of such person. (h)"Permit application" means a properly completed and submitted application for the requested building or construction permit, including: 1. The plans reviewed by the private provider. 2.The affidavit from the private provider required under subsection (6). 14 CODING: Words strickcn are deletions; words underlined are additions.

10001000 FRIENDSFRIENDS OF FLORIDA INC vs. LAUREL M LEELEE LT. CASE NO: 2019 CACA 002215002215 HT. CASE NO: 1D20-21351D20-2135

Ch. 2019-165 LAWS OF FLORIDA Ch. 2019-165

3.Any applicable fees. 4.Any documents required by the local building official to determine that the fee owner has secured all other government approvals required by law. (i)"Plans" means buildin plans, site engineerin plans, or site plans, or their functional equivalent, submitted by a fee owner or fee owner's contractor to a private provider or duly authorized representative for review. Qj)i4"Private provider" means a person licensed as a building code administrator under part XII of chapter 468, as an engineer under chapter 471, or as an architect under chapter 481. For purposes of performing inspections under this section for additions and alterations that are limited to 1,000 square feet or less to residential buildings, the term "private provider" also includes a person who holds a standard certificate under part XII of chapter 468.

kXj- "Request for certificate of occupancy or certificate of completion" means a properly completed and executed application for: 1. A certificate of occupancy or certificate of completion. 2.A certificate of compliance from the private provider required under subsection (11). 3.Any applicable fees. 4.Any documents required by the local building official to determine that the fee owner has secured all other government approvals required by law.

(1) "Site work" means the portion of a construction project that is not part of the building structure, including. but not limited to. grading. excavation. landscape irrigation. and installation of driveways. cmk4 "Stop -work order" means the issuance of any written statement, written directive, or written order which states the reason for the order and the conditions under which the cited work will be permitted to resume. (2) (b)It is the intent of the Legislature that owners and contractors py reduced fees not be required to pay extra cocith related to building permitting requirements when hiring a private provider for plans review and building inspections. A local jurisdiction must calculate the cost savings to the local enforcement agency, based on a fee owner or contractor hiring a private provider to perform plans reviews and building inspections in lieu of the local building official, and reduce the permit fees accordingly. The local jurisdiction may not chare fees for buildinr inspections if the fee owner or 15 CODING: Words trickcn are deletions; words underlined are additions.

10001000 FRIENDSFRIENDS OF FLORIDA INC vs. LAUREL M LEELEE LT. CASE NO: 2019 CACA 002215002215 HT. CASE NO: 1D20-21351D20-2135

Ch. 2019-165 LAWS OF FLORIDA Ch. 2019-165 contractor hires a private provider: however, the local jurisdiction may charre a reasonable administrative fee. (4)A fee owner or the fee owner's contractor using a private provider to provide building code inspection services shall notify the local building official at the time of permit application, or by 2 t.m. local time. 2 no less than 7 business days before prior to the first scheduled inspection by the local building official or building code enforcement agency for a private provider performing required inspections of construction under this section, on a form to be adopted by the commission. This notice shall include the following information: (a)The services to be performed by the private provider. (b)The name, firm, address, telephone number, and facsimile number of each private provider who is performing or will perform such services, his or her professional license or certification number, qualification statements or resumes, and, if required by the local building official, a certificate of insurance demonstrating that professional liability insurance coverage is in place for the private provider's firm, the private provider, and any duly authorized representative in the amounts required by this section. (c)An acknowledgment from the fee owner in substantially the following form: I have elected to use one or more private providers to provide building code plans review and/or inspection services on the building or structure that is the subject of the enclosed permit application, as authorized by s. 553.791, Florida Statutes. I understand that the local building official may not review the plans submitted or perform the required building inspections to determine compliance with the applicable codes, except to the extent specified in said law. Instead, plans review and/or required building inspections will be performed by licensed or certified personnel identified in the application. The law requires minimum insurance requirements for such personnel, but I understand that I may require more insurance to protect my interests. By executing this form, I acknowledge that I have made inquiry regarding the competence of the licensed or certified personnel and the level of their insurance and am satisfied that my interests are adequately protected.I agree to indemnify, defend, and hold harmless the local government, the local building official, and their building code enforcement personnel from any and all claims arising from my use of these licensed or certified personnel to perform building code inspection services with respect to the building or structure that is the subject of the enclosed permit application. If the fee owner or the fee owner's contractor makes any changes to the listed private providers or the services to be provided by those private providers, the fee owner or the fee owner's contractor shall, within 1 business day after any change, update the notice to reflect such changes. A change of a duly 16 CODING: Words strickcn are deletions; words underlined are additions.

10001000 FRIENDSFRIENDS OF FLORIDA INC vs. LAUREL M LEELEE LT. CASE NO: 2019 CACA 002215002215 HT. CASE NO: 1D20-21351D20-2135

Ch. 2019-165 LAWS OF FLORIDA Ch. 2019-165 authorized representative named in the permit application does not require a revision of the permit, and the building code enforcement agency shall not charge a fee for making the change. In addition, the fee owner or the fee owner's contractor shall post at the project site, before prior to the commencement of construction and updated within 1 business day after any change, on a form to be adopted by the commission, the name, firm, address, telephone number, and facsimile number of each private provider who is performing or will perform building code inspection services, the type of service being performed, and similar information for the primary contact of the private provider on the project. (5)After construction has commenced and if the local building official is unable to provide inspection services in a timely manner, the fee owner or the fee owner's contractor may elect to use a private provider to provide inspection services by notifying the local building official of the owner's or contractor's intention to do so by 2 p.m. local time. 2 no less than 7 business days before prior to the next scheduled inspection using the notice provided for in paragraphs (4)(a) -(c). (6) A private provider performing plans review under this section shall review the conEtruction plans to determine compliance with the applicable codes. Upon determining that the plans reviewed comply with the applicable codes, the private provider shall prepare an affidavit or affidavits on a form reasonably acceptable to adopted by the commission certifying, under oath, that the following is true and correct to the best of the private provider's knowledge and belief: (a)The plans were reviewed by the affiant, who is duly authorized to perform plans review pursuant to this section and holds the appropriate license or certificate. (b)The plans comply with the applicable codes. (7)(a)No more than2 30 business days after receipt of a permit application and the affidavit from the private provider required pursuant to subsection (6), the local building official shall issue the requested permit or provide a written notice to the permit applicant identifying the specific plan features that do not comply with the applicable codes, as well as the specific code chapters and sections. If the local building official does not provide a written notice of the plan deficiencies within the prescribed 20 -day 30 day period, the permit application shall be deemed approved as a matter of law, and the permit shall be issued by the local building official on the next business day. (b)If the local building official provides a written notice of plan deficiencies to the permit applicant within the prescribed 20 -day 30 day period, the 20 -day 30 day period shall be tolled pending resolution of the matter. To resolve the plan deficiencies, the permit applicant may elect to dispute the deficiencies pursuant to subsection (13) or to submit revisions to correct the deficiencies. 17 CODING: Words trickcn are deletions; words underlined are additions.

10001000 FRIENDSFRIENDS OF FLORIDA INC vs. LAUREL M LEELEE LT. CASE NO: 2019 CACA 002215002215 HT. CASE NO: 1D20-21351D20-2135

Ch. 2019-165 LAWS OF FLORIDA Ch. 2019-165

(c)If the permit applicant submits revisions, the local building official has the remainder of the tolled 20 -day 30 day period plus 5 business days from the date of resubmittal to issue the requested permit or to provide a second written notice to the permit applicant stating which of the previously identified plan features remain in noncompliance with the applicable codes, with specific reference to the relevant code chapters and sections. Any subsequent review by the local building official is limited to the deficiencies cited in the written notice. If the local building official does not provide the second written notice within the prescribed time period, the permit shall be deemed approved as a matter of law. and iucd by the local building official must issue the permit on the next business day. (d)If the local building official provides a second written notice of plan deficiencies to the permit applicant within the prescribed time period, the permit applicant may elect to dispute the deficiencies pursuant to subsection (13) or to submit additional revisions to correct the deficiencies. For all revisions submitted after the first revision, the local building official has an additional 5 business days from the date of resubmittal to issue the requested permit or to provide a written notice to the permit applicant stating which of the previously identified plan features remain in noncompliance with the applicable codes, with specific reference to the relevant code chapters and sections. (18)Each local building code enforcement agency may audit the performance of building code inspection services by private providers operating within the local jurisdiction. However, the same private provider may not be audited more than four times in a calendar year unless the local buildinr official determines a condition of a building constitutes an immediate threat to public safety and welfare. Work on a building or structure may proceed after inspection and approval by a private provider if the provider has given notice of the inspection pursuant to subsection (9) and, subsequent to such inspection and approval, the work shall not be delayed for completion of an inspection audit by the local building code enforcement agency. Section 15.Paragraph (1) of subsection (2) of section 718.112, Florida Statutes, is amended to read: 718.112Bylaws.- (2) REQUIRED PROVISIONS.-The bylaws shall provide for the following and, if they do not do so, shall be deemed to include the following:

(1) Firesafety.-An association must ensure compliance with the Florida Fire Prevention Code. As to a residential condominium building that is a high-rise building as defined under the Florida Fire Prevention Code. the association must retrofit either a fire sprinkler system or an engineered life safety system as specified in the Florida Fire Prevention Code Certificateof cornpliancc.A proviGion that a certificate of compliance from a licensed electrical contractor or electrician may be accepted by the association's 18 CODING: Words stricken are deletions; words underlined are additions.

10001000 FRIENDSFRIENDS OF FLORIDA INC vs. LAUREL M LEELEE LT. CASE NO: 2019 CACA 002215002215 HT. CASE NO: 1D20-21351D20-2135

Ch. 2019-165 LAWS OF FLORIDA Ch. 2019-165 board as evidence of compliance of the condominium units with the applicable fire and life safety code must be included. Notwithstanding chapter 633 or of any other code, statute, ordinance, administrative rule, or regulation, or any interpretation of the foregoing, an association, residential condominium, or unit owner is not obligated to retrofit the common elements, association property, or units of a residential condominium with a fire sprinkler system in a building that has been certified for occupancy by the applicable governmental entity if the unit owners have voted to forego such retrofitting by the affirmative vote of a majority of all voting interests in the affected condominium. The local authority having jurisdiction may not require completion of retrofitting with a fire sprinkler system or an engineered life safety system before January 1, 2024 2020. By December 31, 2016, a residential condominium association that is not in compliance with the requirements for a fire sprinkler system and has not voted to forego retrofitting of such a system must initiate an application for a building permit for the required installation with the local government having jurisdiction demonstrating that the association will become compli ant by December 31, 2019. 1. A vote to forego retrofitting may be obtained by limited proxy or by a ballot personally cast at a duly called membership meeting, or by execution of a written consent by the member, and is effective upon recording a certificate attesting to such vote in the public records of the county where the condominium is located. The association shall mail or hand deliver to each unit owner written notice at least 14 days before the membership meeting in which the vote to forego retrofitting of the required fire sprinkler system is to take place. Within 30 days after the association's opt -out vote, notice of the results of the opt -out vote must be mailed or hand delivered to all unit owners. Evidence of compliance with this notice requirement must be made by affidavit executed by the person providing the notice and filed among the official records of the association. After notice is provided to each owner, a copy must be provided by the current owner to a new owner before closing and by a unit owner to a renter before signing a lease. 2.If there has been a previous vote to forego retrofitting, a vote to require retrofitting may be obtained at a special meeting of the unit owners called by a petition of at least 10 percent of the voting interests. Such a vote may only be called once every 3 years. Notice shall be provided as required for any regularly called meeting of the unit owners, and must state the purpose of the meeting. Electronic transmission may not be used to provide notice of a meeting called in whole or in part for this purpose. 3.As part of the information collected annually from condominiums, the division shall require condominium associations to report the membership vote and recording of a certificate under this subsection and, if retrofitting has been undertaken, the per -unit cost of such work. The division shall annually report to the Division of State Fire Marshal of the Department of Financial Services the number of condominiums that have elected to forego retrofitting. 19 CODING: Words stricken are deletions; words underlined are additions.

88Xi]

10001000 FRIENDSFRIENDS OF FLORIDA INC vs. LAUREL M LEELEE LT. CASE NO: 2019 CACA 002215002215 HT. CASE NO: 1D20-21351D20-2135

Ch. 2019-165 LAWS OF FLORIDA Ch. 2019-165

4.Notwithstanding s. 553.509, a residential association may not be obligated to, and may forego the retrofitting of, any improvements required by s. 553.509(2) upon an affirmative vote of a majority of the voting interests in the affected condominium. 5. This paragraph does not apply to timeshare condominium associations, which shall be governed by s. 721.24. Section 16.Section 718.1085, Florida Statutes, is amended to read: 718.1085Certain regulations not to be retroactively applied.-Notwith- standing the provisions of chapter 633 or of any other code, statute, ordinance, administrative rule, or regulation, or any interpretation thereof, an association, condominium, or unit owner is not obligated to retrofit the common elements or units of a residential condominium that meets the definition of "housing for older persons" in s. 760.29(4)(b)3. to comply with requirements relating to handrails and guardrails if the unit owners have voted to forego such retrofitting by the affirmative vote of two-thirds of all voting interests in the affected condominium. However, a condominium association may not vote to forego the retrofitting in common areas in a high- rise building. For the purposes of this section, the term "high-rise building" means a building that is greater than 75 feet in height where the building height is measured from the lowest level of fire department access to the floor of the highest occupiable level. For the purposes of this section, the term "common areas" means stairwells and exposed, outdoor walkways and corridors, but does not include individual balconies. In no event shall the local authority having jurisdiction require retrofitting of common areas with handrails and guardrails before the end of 2024 2014. (1)A vote to forego retrofitting may not be obtained by general proxy or limited proxy, but shall be obtained by a vote personally cast at a duly called membership meeting, or by execution of a written consent by the member, and shall be effective upon the recording of a certificate attesting to such vote in the public records of the county where the condominium is located. The association shall provide each unit owner written notice of the vote to forego retrofitting of the required handrails or guardrails, or both, in at least 16 - point bold type, by certified mail, within 20 days after the association's vote. After such notice is provided to each owner, a copy of such notice shall be provided by the current owner to a new owner prior to closing and shall be provided by a unit owner to a renter prior to signing a lease. (2)As part of the information collected annually from condominiums, the division shall require condominium associations to report the membership vote and recording of a certificate under this subsection and, if retrofitting has been undertaken, the per -unit cost of such work. The division shall annually report to the Division of State Fire Marshal of the Department of Financial Services the number of condominiums that have elected to forego retrofitting. 20 CODING: Words strickcn are deletions; words underlined are additions.

10001000 FRIENDSFRIENDS OF FLORIDA INC vs. LAUREL M LEELEE LT. CASE NO: 2019 CACA 002215002215 HT. CASE NO: 1D20-21351D20-2135

Ch. 2019-165 LAWS OF FLORIDA Ch. 2019-165 Section 17.By July 1. 2019. the State Fire Marshal shall issue a data call to all local fire officials to collect data regarding high-rise condominiums greater than 75 feet in height which have not retrofitted with a fire sprinkler system or an engineered life safety system in accordance with ss. 633.208(5) and 718.112(2)(l). Florida Statutes. Local fire officials shall submit such data to the State Fire Marshal and shall include, for each individual building. the address, the number of units. and the number of stories. By July 1. 2020. all data must be received and compiled into a report by city and county. By September 1. 2020. the report must be sent to the Governor, the President of the Senate. and the Speaker of the House of Representatives. Section 18.This act shall take effect upon becoming a law. Approved by the Governor June 28, 2019. Filed in Office Secretary of State June 28, 2019.

21 CODING: Words trickcn are deletions; words underlined are additions.

10001000 FRIENDSFRIENDS OF FLORIDA INC vs. LAUREL M LEELEE LT. CASE NO: 2019 CACA 002215002215 HT. CASE NO: 1D20-21351D20-2135

Filing # 104086399 E -Filed 02/28/2020 12:59:18 PM

IN THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT IN AND FOR LEON COUNTY

1000 FRIENDS OF FLORIDA, iNC., a Florida not for Profit Corporation; and ROBERT J. HOWELL,

Plaintiff,

'7, Case No.: 2019 CA 002215

THE STATE OF FLORIDA, LAUREL M. LEE, in her Official Capacity as Secretary of State of Florida, and KEN LAWSON, in his Official Capacity as the Executive Director of the Florida Department of Economic Opportunity;

Defendants.

DEFENDANT, KEN LAWSON'S. MOTION TO DISMISS PLAINTIFFS', 1000 FRIENDS OF FLORIDA. iNC. AND ROBERT J. HOWELL'S, AMENDED COMPLAINT WITH PREJUDICE, AND ALTERNATIVE MOTION TO DISMISS COUNTS I. II. AND III OF PLAINTIFFS' AMENDED COMPLAINT

COMES NOW Defendant, KEN LAWSON, in his Official Capacity as the Executive

Director of the Florida Department of Economic Opportunity ("Lawson"), and pursuant to Florida

Rules of Civil Procedure 1.110(b), 1 140(b), and 1.420(b), and hereby files this Motion to Dismiss

Plaintiffs', 1000 FRIENDS OF FLORIDA, INC.'s ("1000 Friends") and Robert J. Howell's

("Howell") (collectively "Plaintiffs"), Amended Complaint with prejudice, and Alternative

Motion to Dismiss Counts I, II, and III of Plaintiffs' Amended Complaint, and in support thereof,

states as follows:

Plaintiffs' Amended Complaint is substantially similar to the original Complaint

filed in this action, but it also includes an individual party plaintiff (i.e., Plaintiff Howell), as well

as a third count seeking declaratory and injunctive relief.

91j1

10001000 FRIENDSFRIENDS OF FLORIDA INC vs. LAUREL M LEELEE LT. CASE NO: 2019 CACA 002215002215 HT. CASE NO: 1D20-21351D20-2135

2. Plaintiffs' Amended Complaint concems the constitutionality and enforceability of a prevailing party attorney fees provision passed by the Florida Legislature contained within "[a]n act relating to community development and housing," enacted as Chapter 2019-165, Laws of

Florida, and codified at section 163 .3215 (8)(c), Florida Statutes.'

3. Plaintiffs allege the inclusion of the attorney fee provision in section 163.3215,

Florida Statutes will have an "egregious chilling effect" and "undermines" the "purpose" and

4. Plaintiffs state that the attorney fee provision will have a "punishing" effect on the ability of citizens to participate in the development order challenge process, and contrary to Florida law, asserts that the prevailing party attorney fee provision is a "sanction" and "sanctions" against

"Plaintiff and its members who bring suit." Amended Complaint at 13, 36, 44. HFC Collection

Center, Inc. v. Alexander, 190 So.3d 1114 (Fla, 5th DCA 2016) ("Here, fees were awarded based

The challenged attorney fee language at issue is now set forth in section 163.321 5(8)(c) as follows:

Section 163.32 15(8)(c), Florida Statutes.

2Section 163.32 15 is referred to in Plaintiffs' Amended Complaint as the "Consistency Challenge Statute" and provides as follows:

(3) Any aggrieved or adversely affected party may maintain a de novo action for declaratory, injunctive, or other relief against any local government to challenge any decision of such local government granting or denying an application for, or to prevent such local government from taking any action on, a development order, as defined in s. 163.3164, which materially alters the use or density or intensity of use on a particular piece of property which is not consistent with the comprehensive plan adopted under this part. The de novo action must be filed no later than 30 days following rendition of a development order or other written decision, or when alllocal administrative appeals, if any, are exhausted, whichever occurs later.

Section 163.3215, Florida Statutes.

10001000 FRIENDSFRIENDS OF FLORIDA INC vs. LAUREL M LEELEE LT. CASE NO: 2019 CACA 002215002215 HT. CASE NO: 1D20-21351D20-2135

upon a ... statutory prevailing party basis, rather than as a sanction. The trial court was not called upon to consider sanctions."). Plaintiffs' position is not legally supported as case law has made it clear that a prevailing party attorney fee provision is not a sanction despite Plaintiffs' claims to the contrary.

5. The Department of Economic Opportunity ("Department") is the designated "state land planning agency", however, this does not mean the Department administers all of Chapter

163.Indeed, the Department's role is limited to the specific grants of authority from the legislature, which include, but are not limited to, coordinating state agency review of proposed comprehensive plan amendments (section 163.31 84, Florida Statutes), performing informal investigations of petitions contesting the consistency of land development regulations with a local government's comprehensive plan (section 163.3213, Florida Statutes), and providing technical assistance to help communities find creative solutions to foster vibrant, healthy communities

(section 163.3 168).

6. As recognized by the Plaintiffs in the Amended Complaint, the Department does not administer or enforce section 163.3215, Florida Statutes. Amended Complaint 43Section

163.32 15 provides that an aggrieved or adversely affected party, meaning a person or local government, may file a de novo action for declaratory, injunctive, or other relief against any local government to challenge any decision of such local government. The Department is not a party or otherwise involved in any challenge.The Department has no authority to grant or deny prevailing party attorney fees at the conclusion of any challenge to a development order. The decision to grant or deny prevailing party attorneys' fees resides with the circuit court judge.

10001000 FRIENDSFRIENDS OF FLORIDA INC vs. LAUREL M LEELEE LT. CASE NO: 2019 CACA 002215002215 HT. CASE NO: 1D20-21351D20-2135

7. The Amended Complaint attempts to allege three separate counts each of which seek both declaratory and injunctive relief against Lawson as well as LAUREL M. LEE, in her

Official Capacity as Secretary of State of Florida ("Lee").

8. Count I is an alleged violation of the single subject requirement of Article III,

Section 6, Florida Constitution.

9. Count II is an alleged violation of the substantive due process guarantee of Article

I, Section 9, Florida Constitution.

10. Count III is an alleged violation of Article I, Section 5 of the Florida Constitution and Amendment I of the United States Constitution and alleges abridgement of the right to petition the government for redress of grievances.

11. While seeking declarations that Chapter 2019-165, Laws of Florida, is violative of single subject, due process, and right to assemble provisions of the Florida Constitution, as well as the First Amendment of the United States' Constitution, the Amended Complaint also seeks temporary and permanent injunctive relief, in each respective count, in an effort to prevent

Defendant Lawson, as the "head of the executive agency that is the state land planning agency," from acting in a role that Plaintiffs mistakenly characterize as "implementing" Chapter 2019-165,

Laws of Florida, as it relates to the challenged attorney fee provision, now codified at Florida

Statutes, section 163.3215(8)(c).

12. Defendant Lee is also named in each count seeking declaratory judgment and is sought to be enjoined via temporary and permanent injunctive relief to "expunge" Section 7, subsection (8)(c), Ch. 2019-165, Laws of Fla. from the Laws of Florida and "prohibit the further codification of Section 7, subsection (8)(c), Ch. 2019-165, Laws of Fla. from the Laws of Florida into statute."

10001000 FRIENDSFRIENDS OF FLORIDA INC vs. LAUREL M LEELEE LT. CASE NO: 2019 CACA 002215002215 HT. CASE NO: 1D20-21351D20-2135

13. For the reasons stated below, Plaintiffs' Amended Complaint should be dismissed with prejudice, or alternatively, Counts I,II, and III of the Amended Complaint should be dismissed.

I. The Court Lacks Jurisdiction Over the Subject Matter

14. As pled in Plaintiffs' Amended Complaint, there is no case or controversy (i.e., no justiciable contToversy) or bona fide dispute before the court, and so the court lacks subject matter jurisdiction. Fl.R.Civ.P. 1.140(b)(1). State of Florida v. Florida Consumer Action Network, 830

So,2d 148, 154 (Fla DCA 2002) (reversing summary judgment granted in favor of a citizen's group, who had brought a declaratory judgment action seeking to have the extensive revisions to

Florida's tort system declared unconstitutional on single subject grounds, for failure to allege an appropriate justiciable controversy).

15. In Florida Consumer Action Network, the court rejected a single subject constitutional challenge violation on the grounds that consumer groups failed to allege an appropriate justiciable controversy and accepted the State's argument that the trial court erred in accepting jurisdiction over the suit.Florida Consumer Action Network, 830 So.2d at 15 1-154.

The court rejected the "ripening seeds of controversy" theory put forth by the appellees and reversed the trial court's errant finding that subject matter jurisdiction was present such that a

"cause of action could be...maintained because the Plaintiffs' claims demonstrated that litigation is imminent and unavoidable in the immediate future." Id, at 151

16. The First DCA in Florida Consumer Action Network cited the Florida Supreme

Court at length for the following proposition:

10001000 FRIENDSFRIENDS OF FLORIDA INC vs. LAUREL M LEELEE LT. CASE NO: 2019 CACA 002215002215 HT. CASE NO: 1D20-21351D20-2135

immunity, power, privilege or right of the complaining party is dependent upon the facts or the law applicable to the facts; that there is some person or persons who have, or reasonably may have an actual, present, adverse and antagonistic interest in the subject matter, either in fact or law; that the antagonistic and adverse interests are all before the court by proper process or class representation; and that the relief sought is not merely the giving of legal advice by the courts or the answer to questions propounded from curiosity. These elements are necessary in order to maintain the status of the proceeding as being judicial in nature and therefore within the constitutional powers of the courts.

Florida Consumer Action Network, 830 So.2d at 151 (citing May v. Holley, 59 So.2d 636 (Fla.

1952)) (Emphasis supplied). Further, the court squarely addressed the trial court error in stating that:

Id. at 152. Lastly, the First DCA in Florida Consumer Action Network explained that the trial court failed to consider a key portion of the American Jurisprudence treatise it had cited regarding declaratory judgments which reflected that:

242 (Fla. DCA 2015) (vacating a trial court's declaratory judgement on constitutional claim, with instructions to dismiss, due to Plaintiffs' failure to raise a justiciable controversy with the defendant state agency); Treasure Chest Poker, LLC v. Dep 't of Bus. & Prof'l Regulation, 238

10001000 FRIENDSFRIENDS OF FLORIDA INC vs. LAUREL M LEELEE LT. CASE NO: 2019 CACA 002215002215 HT. CASE NO: 1D20-21351D20-2135

So. 3d 338, 341 (Fla. 2d DCA 2017) (reversing a trial court's declaratory judgement for lack of subject matter jurisdiction, with instructions to dismiss complaint with prejudice, because

Plaintiffs' complaint failed to allege a bona fide dispute between the parties, and therefore, plaintiff was not entitled to bring a declaratory judgement action).

17. In the case at bar, Plaintiffs allege that Chapter 2019-165 "undermines the intent, purpose and rationale of the Act.., by chilling, frustrating, and punishing the ability of locally affected citizens to challenge local government decisions that are not consistent with the local

Comprehensive Plan." Amended Complaint at p13.Plaintiff, 1000 Friends, assert that it has previously "brought cases under the Consistency Challenge Statute and supported citizens and local governments in such cases" and that Chapter 2019-165 "makes it economically infeasible for

1000 Friends and its individual members to challenge development orders.,, and unreasonably chills the ability of 1000 Friends to implement its corporate purposes to further comprehensive planning in Florida through litigation." Amended Complaint atif20, 25.

18. Moreover, the bare statement that individual Plaintiff Howell "was forced to dismiss..[a] case on June 24, 2019 because of the passage of HB 7103 and the potential significant financial liability he personally risked by proceeding to trial" is fundamentally conclusory. Amended Complaint at21. Despite his addition as a party plaintiff in the Amended

Complaint, individual Plaintiff Howell has not pled that he is presently engaged in any actual and immediate controversy with the Department, which is a reflection of the court's lack of subject matter jurisdiction. Plaintiff Howell did not plead in the Amended Complaint that a present case or controversy exists because hecannotplead the existence of a present case or controversy.

Plaintiff Howell cannot overcome the fundamental fact that the statute he attempts to challenge was one with prospective application only, and therefore, it would not have applied to the

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extraneous, unspecified lawsuit he states in the Amended Complaint that he was "forced to dismiss" on "June 24, 2019" after "years of litigation."Amended Complaint at 21.See

Bitterman v. Bitterman, 714 So.2d 356, 363 (Fla. 1998) ("The ability to collect attorney's fees from an opposing party, as well as the obligation to pay such fees, is substantive in nature"

[citations omitted] and "[s]ubstantive rights cannot be adversely affected by the enactment of legislation once those rights have vested" jcitations omitted]); Young v. Altenhaus, etc., 472 So.2d

1152, 1154 (Fla. 1985) ("In Florida, it is clear that in the absence of an explicit legislative expression to the contrary, a substantive law is to be construed as having prospective affect only"

[citations omitted] and that "a statutory requirement for the non -prevailing party to pay attorney fees constitutes a 'new obligation or duty,' and is therefore substantive in nature" [citations omitted]); L. Ross, Inc. v. R.W. Roberts Construction Company, Inc., 466 So.2d 1096, 1098 (Fla.

5th DCA 1985) ("substantive rights and obligationsas to attorney's fees in particular types of litigation vest and accrue as of the time the underlying cause of action accrues" and "the legislature cannot constitutionally increase an existing obligation, burden or penalty as to a set of facts after those facts have occurred"). Simply put, the presently challenged prevailing party attorney's fee provision was not an issue in, or relevant to, Plaintiff Howell's prior lawsuit. On the face of the

Amended Complaint, which includes the "Committee Substitute for Committee Substitute for

House Bill No. 7103" as an exhibit, it is facially apparent that the allegedly offensive provision concerning prevailing party attorney's fees would not under any circumstances have applied to

Plaintiff Howell.CS/CS/HB 7103 "[took] effect upon becoming a law," and per his own allegation, when it was passed into law on May 3, 2019, Plaintiff Howell had already been involved in "years of litigation." Amended Complaint at J' 1, 21; Amended Complaint at Exhibit p. 21.

Because it is apparent that section 163.32 15 (8)(c), Florida Statutes did not apply to Plaintiff

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Howell in the past lawsuit he references in the Amended Complaint, the court lacks subject matter jurisdiction in the present matter.

19. Plaintiffs' Amended Complaint fails to allege either Plaintiff is a party which has an "actual, present, adverse and antagonistic interest in the subject matter," a necessary element to vest this Court with subject matterjurisdiction. Plaintiffs' simple averment that Defendant Lawson

"is the head of the executive agency that is the state land planning agency that administers Chapter

163, Florida Statutes" followed by the conclusory contention that a "genuine and current dispute" exists and that there is an "imminent threat of harm" is fundamentally disconnected. Amended

Complaint at ff23, 27.

20. The Department is not a proper party, does not have review authority, or play any role in administering a section 163.3215 challenge brought by an aggrieved or adversely affected party. The proper parties to a section 163.32 15 challenge would be the local government and any aggrieved or adversely affected party, not the Department. The Court does not have subject matter jurisdiction over the Plaintiffs' Amended Complaint because the Plaintiffs do not have an actual, present, adverse and antagonistic interest against the Department in the subject matter.

21. In addition, the Department has no role in administering at least 14 of the 17 substantive sections within Chapter 2019-165, Laws of Florida, including the amendment to section 163.32 15, which were altered by Section 7 of Chapter 20 19-165, Laws of Florida, and form the primary basis of the Plaintiffs' Amended Complaint. As to the remaining sections of

Chapter 2019-165, Laws of Florida, the only section that in any way relates to the Department's administration of Chapter 163 appears to be with Section 4, which modifies section 163.3180,

Florida Statutes, concerning concurrency within a local government's comprehensive plan.3

The Department's role in this process would be to coordinate review of comprehensive pian amendments, which requires a determination that the plan amendment be "in compliance." The comprehensive plan amendment is in

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22. The minimal allegations in the Amended Complaint concerning the Department's administration of Chapter 163 are insufficient and unrelated to the Plaintiffs' alleged cause of action. The Plaintiffs' Amended Complaint cites to section 163.3164(20) and 163.3184(6), Florida

Statutes, apparently for the proposition that the Department is responsible for administering

Chapter 163. Amended Complaint p23.Section 163.3 164(20) provides the definition for

"Governing Body" as:

Section 163.3184(6) provides for the Department to play a minimal role during a Compliance

Agreement entered into during a challenge to a comprehensive plan or plan amendment pursuant to section 163.3184 - not a challenge to a development order under section 163.3215. These disparate statutory citations in the Plaintiffs' Amended Complaint cannot establish that the

Department has a role in administering something that it does not (i.e., the Consistency Challenge

Statute).

23. Plaintiffs' bare, conclusory allegations are deficient and do not rise to the level of an actual, immediate, real, present, bona fide, adverse case or controversy requiring adjudication

compliance ifit is consistent with the requirements of sections 163.3177, 163.3178, 163,3180, 163.3191, 163.3245, and 163.3248, Florida Statutes. Seesection 163.3184(1)(b), Florida Statutes.At most, the Department has an administmtive review role for a single section out of the 17 substantive sections within Chapter 2019-165, Laws of Florida.

Ihe other two sections within Chapter 20 19-165, Laws of Florida, that, in part, relate to the Department are Section 3, which modifies section 163.3167, Florida Statutes, a legislative proclamation of the scope of the Community Planning Act, and Section 6, which modifies section 163.3202, Florida Statutes, relating to local government land development regulations.

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by the court.In fact, given the conclusory allegations, it would appear that Plaintiffs wish to overcome by judicial action an outcome taken by the Legislature with which it disagrees.

24. Just as in Florida Consumer Action Network, Plaintiffs' asserted claims of injury are "nonspecific and hypothetical" and do no more than question the constitutionality of Chapter

20 19-165 based on "vague, general fears of possible future harm." Florida Consumer Action

Network, 830 So.2d at 153. Plaintiffs' allegations about the potential effect of a prevailing party attorneys' fee provision are insufficient to create ajusticiable controversy which would permit the circuit court to accept jurisdiction over the present case.Accordingly, Plaintiffs' Amended

Complaint should be dismissed with prejudice as there is no bona fide dispute.

II. Lack of Standing

25. The Amended Complaint should be dismissed with prejudice because Plaintiffs lack standing to bring counts I, II, and III alleged in the Amended Complaint. Because there is no case or controversy or bona fide dispute, see supra, Plaintiffs have no standing.4

26. Section 163.32 15, which contains the attorney fee provision at the center of this matter, is entitled "Standing to enforce local comprehensive plans through development orders" and requires local governments that issue contested development orders to be named as respondents in all proceedings. The statute provides "the exclusive methods for an aggrieved or adversely affected party to appeal and challenge the consistency of a development order with a

The U.S. Supreme Court has considered the doctrine of standing in reviewing issues related to numerous federal statutes and has spoken clearly on the interrelated nature of standing and case and controversy. See Spokeo, Inc. v. Robins, 1365.Ct. 1540, 1547, 1549 (U.S. 2016) (vacatillg and remailding appellate court decision where appellate court did not determine whether alleged violations of Fair Credit Reporting Act caused concrete injury required for standillg aild stating that "[sitanding to sue is a doctrine rooted in the traditional ullderstanding of case or coiltroversy" and "the doctrine of standing derives from the case -or controversy requirement"); Lujan v. Defenders of Wildbfe, 112 S.Ct. 2130, 2136 (U.S. 1992) (reversing on standing grounds the appellate court's entry ofjudgment for environmental groups - subsequent to an initial dismissal by the trial court - and stating that standing requires a plaintiff to have an injury in fact, which is ainvasioll of a legally protected illterest which is concrete aild particularized and actual or imminent rather than conjectural or hypothetical).

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comprehensive plan" and sets forth who has standing to proceed under those exclusive methods.

Section 163.3215(1), Florida Statutes.Section 163.3215 states as follows:

Section 163.3215, Florida Statutes (Emphasis supplied).The definitional section of the

Community Planning Act at section 163.3164, Florida Statutes, further defines "person" as "an individual, corporation, governmental agency, business trust, estate, trust, partnership, association, two or more persons having a joint or common interest, or any other legal entity."

27. Significantly, the instant matter is not an action brought pursuant to section

163.32 15.Section 163.32 15 does not dispense with a case or controversy or bona fide dispute requirement, but rather undertakes to define and broaden the parameters of when the statute applies. As reflective of the absence of a case or controversy as contemplated by section 163.32 15, no local government has been named as a respondent in this matter, which is a clear requirement of section 163.3215(2).The legislature's use of the definite article "the" precedent to "local government comprehensive plan" in section 163.3215(2) contemplates a specific instance and a

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real situationnot a conjectural, speculative allegation of a generalized possibility of harm. id.

Therefore, the con -anon law of standing is more appropriately applied in this matter as no specific local development order is being challenged in the Amended Complaint.5

28. In Hayes v. Guardianship of Thompson, 952 So.2d 505 (Fla. 2006), the Florida

Supreme Court explained the law of standing:

Hayes, 952 So.2d at 505. More recently, in Cruz v. Community Bank & Trust of Florida, 2019

WL 3755444 (Fla. 5th DCA 2019), the Fifth District Court of Appeal stated that:

Standing is a threshold inquiry that must be addressed before considering the merits of a cause of action. See Olen Props. Corp. v. Moss, 981 So. 2d 515, 517 (Fla. 4th DCA 2008). To have standing, a would-be litigant must show "a direct and articulable interest in the controversy, which will be affected by the outcome of the litigation." Centerstate Bank Cent. Fla., N.A. v. Krause, 87 So. 3d 25, 28 (Fla. 5th DCA 2012). This interest must be legally cognizable and not "conjectural or merely hypothetical." Id. Standing to bring or participate in a particular legal proceeding often depends on the nature of the interest asserted. Hayes v. Guardianship of Thompson, 952 So. 2d 498, 505 (Fla. 2006).

Even if applied and broadly construed, which should not happen as this is not an action under section 163.32 15 and there is110specific local development order beillg challeilged as required by the statute, the definitioll of standing is designed to allow an "aggrieved or adversely affected party" to make a consistency challenge, but it is not intended to impart an unlimited grailt of standing to any corner. Section 163.3215(1), Florida Statutes. For example, for standing to be proper under the statute the alleged adverse interest "must exceed in degree the general interest in community good shared by all persons," which has not been adequately alleged in this matter.Section 163.3215(2), Florida Statutes.Indeed, Plaintiff, 1000 Friends, is similarly situated to any other potential party entitled to challenge a development order and appears to harbor what constitutes a generalized interest in community good. Absent the requisite quantum of allegations of enhanced intensity of interest, and absent a challenge to a specific local government development order, neither of which is present in the Amended complaint, 1000 Friends' allegations are deficient and cannot impart standing even if section 163.32 15(1) and (2) were to be mistakenly applied.

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Cruz, WL 3755444 at *1.

29. In the case at bar, which is not an action brought pursuant to section 163.3215,

Florida Statutes, Plaintiffs have not shown a "direct and articulable interest" in a controversy, which will be affected by the outcome of the litigation. Id.Plaintiff Howell contends he prevailed at the appellate level on an unrelated lawsuit wherein he, as plaintiff, had initiated a development order consistency challenge under Section 163.3215(2), but then contends that he subsequently voluntarily dismissed the matter on remand out of concern for "potential significant financial liability he personally risked by proceeding to trial."Amended Complaint at ]21. As pled,

Plaintiff Howell has no interest or injury that could reasonably expect to be affected by the outcome of the instant proceedings, either directly or indirectly. Indeed, as noted supra, at the time of its passage into law, section 163 .3215 (8)(c), Florida Statutes had prospective effect only and would not have applied to any matter Howell was then litigating.6

30. In light of the aforenoted authorities, and given the commitment of the Florida courts to adjudicating matters where real disputes exist and where articulatable, non -conjectural, non -hypothetical interests are at stake, the mere expectation of a negative disincentive, without more and presented in a vacuum, is not a reasonable expression of a direct or indirect interest which would be affected by the outcome of this proceeding. Indeed, Plaintiff 1000 Friends merely contends that Section 7 of Chapter 2019-165 "makes it economically unfeasible" to pursue unspecified, potential litigation which might possibly happen at some point in the future.

Amended Complaint at p25. As it relates to the Department of Economic Opportunity, these allegations are fundamentally indefinite, uncertain, and remote and do not rise to the level of

6Section 18 of CS/CS/HB 7103, enacted as Chapter 2019-165, Laws of Florida, clearly states that "[tihis act shall take effect upon becoming a law." See Amended Complaint (Exhibit, p. 21). In addition, Plaintiffs have not alleged in their Amended Complaint that the subject statute was retroactive or retrospective.

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specificity and immediacy required to articulate a cognizable claim and impart standing.See

Citizens Growth Management Coalition of West Palm Beach, Inc. v. City of West Palm Beach,

Inc., 450 So.2d 204, 208 (Fia. 1984) (affirming judgment for city and against association of city residents on standing grounds where association failed to prove that it or any of its members had a legally recognizable interest which would be affected by city's ordinances);Florida Rock

Properties v. Keyser, 709 So.2d 175, 177 (Fla. 5th DCA 1998) (reversing final judgment and holding that owner of land and business in county who had interest in environment was not an aggrieved or adversely affected party and lacked standing to enforce county comprehensive development plan absent showing that rezoning would have specific impact on him or his

5th property; 1000 Friends of Florida, Inc. v. St. John's County, 756 So.2d 216, 217-218(Fla,

DCA 2000) (environmental groups and individual plaintiffs did not have standing under section

163.3164(24) and 163.3 177(6)(a), Florida Statutes, to contest Department of Transportation's project to run water and sewer lines through rights -of -way, despite their contention that project was public facility and that county's comprehensive plan had to be amended); Martin County

Conservation Alliance v. Martin County, 134 So.2d 966, 967 (Fla. Pt DCA 2010) (dismissing an appeal from an administrative proceeding conducted pursuant to section 120.68, Florida Statutes, and holding that interest groups lacked standing to appeal administrative order, where groups failed to demonstrate that their interests or the interests of a substantial number of their members were adversely affected by the order).7

But see Nassau County v.Willis, 41 So.3d 270, 277-278 (Fla. l' DCA 2010) (standing recognized under action brought pursuant to section 163.3215 where plaintiffs maintained "an active and coiltilluing collection to the affected land" or were "members of an organization whose primary purpose is the study and protection of natural resources and the advocacy of sound laild use aild growth management policies affecting the ellvironment"); Homosassa River Alliance, Inc. v. Citrus County, 2 So.3d 329 (Fla. 5th DCA 2008) (standing recognized where environmental group and area landowners brought action against county under section 163.3215);Southwest Ranches Homeowners Association, Inc. v. County of Broward, 502 So.2d 931, 934-935 (Fla. 4th DCA 1987) (standing analysis under section 163.3215 where homeowner's association was determined to have a more direct stake in the matter than would a group of concei'ned citizens and taxpayers with a general interest in preserving the environmental character of the area where

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31. As such, Plaintiffs' Amended Complaint should be dismissed with prejudice due to a lack of standing.

III. Failure to State Causes of Action

32. Counts I, II, and III of Plaintiffs' Amended Complaint should be dismissed because

Plaintiffs have failed to state causes of action and are not entitled to declaratory relief or injunctive relief. Fl.R.Civ.P. 1.140(b)(6).

33. The court in Ilankins v. Title & Trust Co. ofFlorida set forth the rule that uniquely applies in the context of evaluating the sufficiency of a complaint seeking a declaratory judgment.

IIan/dns v. Title & Trust Co. of.Florida, 169 So2d 526, 528 (Fla. Pt DCA 1964). The court in

Hankins stated as follows:

Han/dns, 169 So.2d at 528. This is a qualitatively different test from the general test for a motion to dismiss for failure to state cause of action which tests whether the pleader could prove any set

association was a group of property owners whose land adjoined the proposed development and stood to be directly affected by the alleged aspects of the development which are clainìed to be inconsistent with the comprehensive plan). These cases are distinguishable from the case at hand because the cited cases all involve plaintiffs that brought actions against local governments challenging specific development orders pursuant to section 163 3215, Florida Statutes. The instant case is not brought against a local government, but is brought against the Department, and there is no statutoly authority ander which the Plaintiffs can allege that they have standing against the Department

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of facts whatsoever in support of the claim.Wausau Ins. Co. v. Ilaynes,683 So.2d 1123, 1124

(Fla, 4th DCA 1996).8

A. Plaintiffs Do Not State CausesofAction for Declaratoiy Judgment

34. Plaintiffs do not properly allege in Counts I, II, and III of the Amended Complaint the legal basis upon which they seek declaratory judgments. Although the Amended Complaint refers generally to Chapter 86, Florida Statutes, the Amended Complaint is deficient in that it omits throughout any mention of the specific statutory authority or sub -section under which relief is pursued. Notice pleading is not the standard in Florida and Defendant Lawson should not be required to infer the statutory basis of the very cause of action when the subject Chapter sets forth multiple avenues of potential relief that are available in different scenarios.Sections 86.02 1-

86.061, Florida Statutes. Plaintiffs have the burden to articulate cognizable claims, including the underlying legal basis of the applicable causes of action, and to plead allegations which reflect entitlement to a declaration of rights.In this regard, this fundamental legal sufficiency detennination fails at the outset. Defendant Lawson should not be required to assume or guess the specific statutory proviso under which declaratory relief is sought by Plaintiffs when Chapter 86 sets forth different and various scenarios.

35. In order to withstand a motion to dismiss, a complaint for declaratory relief must allege facts showing that there is bona fide, actual, present, and practical need for a declaration.

8In assessing the sufficiency of motion to dismiss a complaint for failure to state cause of action in a non -declaratory judgment context, the material allegations of the complaillt are taken as true and all reasonable inferences drawn therefrom must be construed in favor of the non-moving party. The Florida Bar v. Greene,926So.2d 1195, 1199 (Fla. 2006); Hembree v. Reaves, 266 So.2d 362, 362 (Fla. Ut DCA 1972); Fletcher v. Williams, 153 So.2d 759, 760 (Fla.10DCA 1963); UnitedAuto. Ins. Co. v. Law Offices of Michael I. Libman, 46 So.3d 1101 (Fla. 3rd DCA 2010). In such a scenario, a motion to dismiss for failure to state a cause of action tests whether the plaintiff has stated a cause of action, not whether the plaintiff will prevailattrial. UnitedAuto. Ins. Co., 46 So.3d at 1103. The trial court must confine itself strictly to the allegations that are within four corners of complaint.Pizzi v. Central Bank & Trust Co., 250 So.2d 895, 897 Fla. 1971); McWhirter, Reeves, McGothlin, Davidson, Rief & Bakas, PA. v. Weiss, 704 So.2d 214, 215 (Fla. 2nd DCA 1998).

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In Okaloosa Island Leaseholders Ass '/2, Inc. v. Okaloosa Island Authority, 308 So.2d 120, 122-

123 (Fla. 1st DCA 1975), the First District Court of Appeal reversed a declaratory judgment that had been granted by the trial court and remanded the case for dismissal and stated:

While the existence of an actual controversy is not necessarily a prerequisite to the activation of the courts jurisdiction over a declaratory judgment action, it is clear that there must be a bona fide dispute between contending parties as to a present justiciable issue in order to invoke the declaratory judgment act. (See Brautigam v. MacVicar, Sup.Ct.Fla.1954, 73 So.2d 863.) Stated another way, to withstand a motion to dismiss, a complaint for declaratory relief must allege facts showing that there is a bona fide, actual, present and practical need for a declaration (May v. Holley, Sup.Ct.Fla.1952, 59 So.2d 636). The complaint sub judice does not meet that test. Indeed, the complaint clearly shows that there is no actual and present need for a declaration: The issue posed in the complaint involved only a mere possibility of a dispute in the future. The situation in the case sub judice is analogous to that in Bryant v. Gray [70 So.2d 581 (Fl. Sup. Ct. 1954)]... wherein the Supreme Court of Florida, holding that the complaint should have been dismissed for lack of a bona fide, actual, present need for a declaration, said: His question is hypothetical and is too remote as to time and too uncertain as to contingency. He does not allege that he will be nominated or elected to either the unexpired term or a full term. There is no certainty that he will be.

Okaloosa Island Leaseholders Ass'n, Inc., 308 So.2d at 122 (Case references retained). The court cited to numerous longstanding decisions of the Florida Supreme Court in support of its directive to the trial court to dismiss the plaintiffs' action as the alleged dispute was hypothetical in nature, lacking in certainty, and rooted in only a mere possibility of eventualizing in the future.

36. Just as in Okaloosa Island Leaseholders Ass'n, Inc., there is no bona fide, actual, present, and practical need for a declaration by the court in the present matter. There is no present injury or threat of harm that implicates the Department and requires adjudication by the court in the form of declaratory relief related to Chapter 2019-165, Laws of Florida and the recently added, facially neutral prevailing party fee statute.Under section 163.3215, as currently written, the

Department will never be a party to a challenge to a local development order unless it decides to initiate an action against a local government entity and challenge a local development order. While

'El

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that situation is not known to have ever happened, it is simpiy not conceivable that the Department would find itself as an opposing party to either of the Plaintiffs in an action filed under section

163.32 15, Florida Statutes.

37. Further, section 86.09 1, Florida Statutes, states that:

When declaratory relief is sought, all persons may be made parties who have or claim any interest which would be affected by the declaration. No declaration shall prejudice the rights of persons not parties to the proceedings. In any proceeding concerning the validity of a county or municipal charter, ordinance, or franchise, such county or municipality shall be made a party and shall be entitled to be heard. if the statute, charter, ordinance, or franchise is alleged to be unconstitutional, the Attorney General or the state attorney of the judicial circuit in which the action is pending shall be served with a copy of the complaint and be entitled to be heard,

Section 86.091, Florida Statutes. (Emphasis supplied). As concerning Chapter 119-165, Laws of

Florida and its content, Defendant Lawson is not an adverse party to the Plaintiffs, 1000 Friends or Howell, and is therefore not a proper party to this lawsuit, as he would not be affected in any present, real, or concrete way by any decree that might be issued relative to this matter.9 Defendant

Lawson is named in this lawsuit, which challenges the constitutionality of a facially neutral prevailing party attorney fee provision recently incorporated into section 163.32 15 on single subject rule, substantive due process, and redressability of grievances grounds, solely because he is "the Executive Director of the Department of Economic Opportunity, and is the head of the state land planning agency that administers Chapter 163, Florida Statutes, portions of which are challenged as unconstitutional in this action." Amended Complaint at23.In his capacity as

Executive Director of the Department, Defendant Lawson does not implement section 163.32 15 as repeatedly suggested by Plaintiffs in the Amended Complaint. Neither the Department nor

This is apparent from the fact that of the various provisions of Chapter 119-165, only Section 4, which amends section 163.3180, Florida Statutes, concerning "Concuneney," sets forth any type of affirmative role for the Department of Economic Opportunity - and that role is limited.

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Defendant Lawson has any cognizable interest that can be affected in any way by any declaratory judgment that might be issued by the court in any action that might hypothetically be filed pursuant to section 163.32 15 now or in the future. Even if every allegation in Counts I, II, and III are taken as true, and a declaratory judgment is obtained, the relief requested by Plaintiffs cannot and would not materialize as Defendant Lawson and the Department are unaffected by and removed from considerations relative to prevailing party attorney fees in local government development order consistency challenge actions under section 163.3215. The Department takes no actions involving the award of attorneys' fees to a prevailing party and the Department has no interest that would be affected by the entry of the decree requested by the Plaintiffs.See supra, Treasure Chest Poker,

LLC, 238 So. 3d at 341 (reversing a trial court's declaratory judgement for lack of subject matter jurisdiction, with instructions to dismiss complaint with prejudice, because plaintiff failed to allege a bona fide dispute between the parties and was not entitled to bring a declaratory judgement action).

38. Accordingly, Plaintiffs have failed to state a cause of action for declaratory relief and Counts I, II, and III of the Amended Complaint should be dismissed.

B.Plaintiffs Do Not State Causes ofAction for Injunctive Relief

39. Plaintiffs do not properly allege in Counts I, II, and III of the Amended Complaint the legal basis upon which it seeks temporary and permanent injunctive relief. In Counts I, II, and

III of Plaintiffs' Amended Complaint, injunctive relief is sought pursuant to "Chapter 60, Florida

Statutes" to enjoin Defendant Lawson from "implementing" the challenged attorney fee provision.

10See also supra, Apthorp, 162 So. 3d at 241-242 (vacating a trial court's declaratoiy judgement on constitutional claim, with instructions to dismiss, due to Plaintiffs' failure to raise a justiciable controversy with the defendant state agency); Florida Consumer Action Network, 830 So.2d at 154 (reversing summary judgment granted in favor of a citizen's group, with instructions to dismiss with prejudice, in declaratory judgment constitutional challeilge where plaintiffs failed to allege an appropriate justiciable controversy).

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No subsection of the chapter is presented as a specific statutory vehicle under which Plaintiff pursues injunctive relief, although numerous subsections of Chapter 60 set forth various altemative scenarios whereby injunctive relief may be actionable. Sections 60.0 1-60.08, Florida Statutes.

40. Although the Amended Complaint refers generally to Chapter 60, Florida Statutes, the Amended Complaint is deficient in that it omits throughout any mention of the specific statutory authority or sub -section under which injunctive relief is pursued. Notice pleading is not the standard in Florida and Defendant Lawson should not be required to infer the statutory basis of the very cause of action when the subject Chapter sets forth multiple avenues of potential relief that are available in different scenarios.It is noteworthy that none of the scenarios set forth in

Chapter 60 would even be facially applicable to the present matter. Plaintiffs have the burden to articulate cognizable claims, including the underlying legal basis of the applicable cause of action, and to plead allegations which reflect entitlement to relief. In this regard, this fundamental legal sufficiency determination as to injunctive relief fails at the outset. Defendant Lawson should not be required to assume or guess the specific statutory proviso under which injunctive relief is sought by Plaintiffs.

41. Further, with regard to temporary injunctions, Florida Rule of Civil Procedure

1.610 states as follows:

(a) Temporary Injunction. (1) A temporary injunction may be granted without written or oral notice to the adverse party only if: (A) it appears from the specific facts shown by affidavit or verified pleading that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and (B) the movant's attorney certifies in writing any efforts that have been made to give notice arid the reasons why notice should not be required. (2) No evidence other than the affidavit or verified pleading shall be used to support the application for a temporary injunction unless the adverse party appears at the hearing or has received reasonable notice of the hearing. Every temporary injunction granted without notice shall be endorsed with the date and hour of entry

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and shall be filed forthwith in the clerks office and shalE define the injury, state findings by the court why the injury may be irreparable, and give the reasons why the order was granted without notice if notice was not given. The temporary injunction shall remain in effect until the further order of the court,

Fl.R.Civ.P. 1.610.(Emphasis supplied). As applied to the instant matter, Plaintiffs' Amended

Complaint is noticeably deficient in that Plaintiffs have not provided an affidavit or verified pleading required for the issuance of a temporary injunction under the Florida Rules of Civil

Procedure.11

42. Indeed, whether it be in the context of temporary or permanent injunctive relief as sought in Counts I, II, or III of the Amended Complaint, Plaintiffs have not even articulated any injury or harm that would result from any specific action of the Department or Defendant Lawson.

As stated supra, and contrary to Plaintiffs' assertions, neither the Department nor Defendant

Lawson implements section 163.3215 or its recently added facially neutral prevailing party attorney fee provision. Neither the Department nor Defendant Lawson determines the propriety of development orders under section 163.3215, and the local government development order consistency challenge process plays out in the courts without the involvement of either.The

Department will never be a party to a challenge to a development order under the statute as written and it is not foreseeable that it would be adverse to Plaintiffs in the event either ever initiated a consistency challenge under the section 163.3215. As Defendant Lawson has no interest that could be enjoined in relation to the requested relief, if an injunction were issued, the relief requested

Significantly, Counts I and 11 of the Plaintiffs' Complaint seek oniy statutory injunctions pursuant to "Chapter 60, Florida Statutes." Count III does not reference Chapter 60 in the same maimer as Counts I and II.Plaintiff makes no claim for a common law temporary injunction, the requirements of which are well established in the case law. Tele,nundo Media, LLC v. Mintz, 194 So.3d 434, 435-436 (Fla. 3rd DCA 2016) ("It is well established that a temporary injunction lies when five requirements are satisfied: (1) the substantial likelihood of success on the merits, (2) the likelihood of irreparable harm, (3) the unavailability of an adequate remedy at law, (4) the threatened injuiy outweighs the possible harm, and (5) and the issuance of the temporary injunction will not disserve the public interest"); Genchi v. Lower Florida Keys hospital, 45 So.3d 915, 918 (I'la. 3" DCA 2010); Hues v. Auto Bahn Federation, Inc., 498 So.2d 997, 998 (Fla. 4th DCA 1986).

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would simply not materialize. The entry of the injunctive relief requested by the Plaintiffs would have no effect on the operations of the Department, and would not result in any relief for the

Plaintiffs, because the Department does not implement, administer, or enforce section 163.3215,

Florida Statutes.

43. Because the fundamental prerequisites required to state a valid claim for entitlement to injunctive relief are absent, Counts I, II, and III of Plaintiffs' Amended Complaint for injunctive relief should be dismissed for failure to state a cause of action.

IV. Failure to Plead Ultimate Facts

44. Florida Rule of Civil Procedure 1.110 (b) concerns "Claims for Relief" and requires that:

Fl.R.Civ.P. 1.110 (b). (Emphasis supplied). Plaintiffs' Amended Complaint should be dismissed for failure to plead ultimate facts that would support, or even tend to support, a claim for the relief requested as required by Rule 1.110 (b)(2).

45. In Maiden v. Carter, 234 So.2d 168 (Fla DCA 1970), an estate proceeding, the court affirmed the dismissal of an amended third -party complaint. Maiden v. Carter, 234 So.2d at

171. In so doing, the court stated that it is a fundamental principle of pleading that the complaint, to be sufficient, must allege ultimate facts as distinguished from legal conclusions which, if proved, would establish a cause of action for which relief may be granted. Id. at 170. The court observed that the amended complaint simply alleged that defendant received assets from an estate to which there was no lawful claim or entitlement, but no facts were alleged to support such a conclusion.

Id. The complaint was silent with respect to the nature or value of the assets received by defendant,

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the time they were received, from whom they were received, or the circumstances surrounding their receipt.Id. As a result, the complaint was deemed vague, indefinite, and uncertain and formulating a response thereto was determined to be virtually impossible. Id. See Doyle v. Flex,

210 So.2d 493, 494-495 (Fla. 4th DCA 1968) (affirming the dismissal with prejudice of a "fatally defective" second amended complaint and stating that mere legal conclusions inserted in a complaint are insufficient to state a cause of action unless substantiated by allegations of ultimate fact, which, if established by competent evidence, would support a decree granting the relief sought); Frugoli v. Winn -Dixie Stores, Inc., 464 So.2d 1292, 1293 (Fla. DCA 1985) (affirming an order of dismissal as to two of four counts where complaint failed to state a cause of action and complaint did not contain sufficient ultimate facts to which appellees could adequately respond).

46. Similarly, in Beckler v. Hoffman, 550 So.2d 68 (Fla. 5th DCA 1989), an action for gross negligence against co -employees, the allegations of the complaint were found to be "too general and vague and conclusory and therefore, insufficient" under Florida Rule of Civil

Procedure 1.110(b)(2). Beckler v. Hoffman, 550 So.2d at 70. The court explained that allegations can be made on three levels:1) "a description of the evidence itself," 2) "a statement of ultimate facts," or 3) "a conclusion of fact or law," and stated that, for purposes of pleading, conclusory allegations are wholly insufficient. Id. "[Miatters must be alleged with sufficient particularity so that a trial judge in reviewing the ultimate facts alleged may rule as a matter of law whether or not the facts alleged are sufficient as the factual basis for the inferences the pleader seeks to draw and are sufficient to state a cause of action." Id. at 71.

47. In the case at bar, as a reflection of the absence of a bona fide, actual, present justiciable case or controversy or dispute (see supra), and consistent with each of the above cited authorities, Plaintiffs' Amended Complaint is devoid of allegations which comply with the

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ultimate fact pleading requirement of Rule 1 11 0(b)(2)Plaintiff alleges that Chapter 2019-165

"undermines the intent, purpose and rationale of the Act.,, by chilling, frustrating, and punishing the ability of locally affected citizens to challenge local government decisions that are not consistent with the local Comprehensive Plan." Amended Complaint at 13.Plaintiff 1000

Friends asserts that it has "brought cases under the Consistency Challenge Statute and supported citizens and local governments in such cases" in the past and that Chapter 2019-165 "makes it economically infeasible for 1000 Friends and its individual members to challenge development orders.,, and unreasonably chills the ability of 1000 Friends to implement its corporate purposes to further comprehensive planning in Florida through litigation." Amended Complaint atif20, 25 Similarly, with regard to new individual Plaintiff Howell, no facts are alleged in this Amended

Complaint supporting the bare, conclusory allegation that Plaintiff Howell was "forced" to dismiss a civil action in an entirely unrelated matter out of "potential significant financial liability he personally risked by proceeding to trial" as it relates to the prevailing party fee statute set forth in section 163.32 15 (8)(c), Florida Statutes, which would not have even applied to his situation given

its prospective effect (see supra). Amended Complaint atr21. In simplest terms, Plaintiff Howell makes no allegation whatsoever of pending or immediate financial exposure for attorneys' fees relative to a present development order challenge.

48. Plaintiffs endeavor to allege in a disconnected manner that Defendant Lawson "is the head of the executive agency that is the state land planning agency that administers Chapter

163, Florida Statutes." Amended Complaint at23. Further, the mere statement that a "genuine and current dispute" exists and that there is an "imminent threat of harm" does not make it so. Amended Complaint atif27-28.Plaintiffs do not even state in the Amended Complaint the specific statutory authorities or sub -sections under which it pursues alleged statutory causes of

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action, opting instead to generally refer to Chapters 60 and 86, Florida Statutes, each of which contemplate multiple avenues of relief in different scenarios. Plaintiffs have not articulated a set of facts that demonstrate entitlement to relief or that provide sufficient support as a factual basis for the inferences the pleader seeks to draw. Plaintiffs' conclusory allegations are not ultimate facts on which the pleading of an alleged legal dispute can rest.

49. As a result, Plaintiffs' Amended Complaint is "fatally defective" and should be dismissed with prejudice for failure to comply with the pleading requirement of Rule 1.110 (b)(2).

Doyle,210 So.2d at 495.

WHEREFORE, Defendant Lawson respectfully requests that this court dismiss Plaintiffs'

Amended Complaint with prejudice, or altematively dismiss counts I, II, and III of Plaintiffs'

Amended Complaint as discussed herein, award costs as allowed by law, and grant all other relief it deems just and proper.

Certificate of Good Faith Conference

The undersigned counsel for Defendant Lawson, Mark A. Buckles, Esq., hereby certifies that on February 28, 2020 he conferred with counsel for Plaintiffs, Jane West, Esq., and that counsel have been unable to agree on the resolution of this motion.

Certificate of Service

I hereby certify that on February 28, 2020, a true and correct copy of the foregoing was electronically filed with the court via the court's c -filing system and also c -mailed to the counsel or persons listed on the attached service list.

/s/Mark ABuckles William E. Chorba, Esq. Florida Bar No. 58370 Mark A. Buckles, Esq. Florida Bar No. 0498971 Rebekah A. Davis, Esq.

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Florida Bar No. 42339 Florida Department of Economic Opportunity 107 E. Madison Street Caidwell Building, MSC -1 10 Tallahassee, FL 32399 Tel. (850) 245-7150 Fax. (850) 921-3230 k,Bucklesdeo.mori.com lacom [email protected]

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Service List:

Jane West, Esquire Policy and Planning Director 1000 Friends of Florida 24 Cathedral Place, Suite 504 St. Augustine, FL 32084 Office: (904) 471-0505 i000fotor. Counsel for 1000 Friends of Florida

Terrell K. Arline, Esquire Terre!! K. Arline, Attorney at Law 1819 Tamiami Drive Tallahassee, FL 32301 (850) 321-8726 gail.com

Co -Counsel for 1000 Friends of Florida

Richard Grosso, Esq. Richard Grosso, P.A. 6919 W. Broward Boulevard Plantation, FL 33317 Mailbox 142 sc.riclardahoo.com 954-801-5662 Co -Counsel for 1000 Friends of Florida

Joseph W. Little, Esq. 3731 NW 13th Place Gainesville, FL 32605 352-372-5955 !ittLenvi)oniai1 corn Co -Counsel for 1000 Friends of Florida

Cc: Honorable John C. Cooper 2Judicial CircuitLeon County 301 South Monroe Seet, # 365B Tallahassee, FL 32301

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Filing # 104096757 E -Filed 02/28/2020 02:28:04 PM

1N THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT 1N AND FOR LEON COUNTY, FLO}UDA

1000 FRIENDS OF FLORIDA, INC., a Florida Not for Profit Corporation, PlaintJf v. CaseNo.: 2019 CA 002215

SECRETARY LEE'S MOTION TO DISMISS AMENDED COMPLAINT WITH PREJUDICE

Defendant, Florida Secretary of State Laurel M. Lee, pursuant to Rule 1.140, Florida

Rules of Civil Procedure, moves to dismiss the amended complaint with prejudice because she is

not a proper defendant and therefore the court lacks subject matter jurisdiction against her.

Plaintiffs challenge the constitutionality of Chapter 2019-165, Laws of Florida, which is "an act

relating to community development and housing," and section 163.32 15(8)(c), which allegedly

both "sanction[s]" those "who bring suit under Section 163.3215...to enforce provisions of the

local Comprehensive Plans" and "imposes an unlimited financial risk upon the Plaintiffs to

exercise their right to petition the govemment for redress of grievances." Am. Compl. ¶J 1, 44,

47I Those provisions however,are not enforced by Secretary Lee, nor do they involve any

broad constitutional duty of the state or implicate her specific responsibilities, which could

otherwise make a non -enforcement authority proper. See Scott v. Francati, 214 So. 3d 742, 746

1 The amended complaint addsan individual Plaintiff and a new count regarding the right to petition for redress of grievances. Am. Compl. ¶J 21, 46-48.

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(Fla. 1st DCA 2017), review denied sub nom, Francati v. Scott, No. SC17-730, 2017 WL

2991836 (Fla. July 14, 2017).

I. BACKGROUND

"provisions of current law running the gamut from community planning, land development regulations, affordable housing, and even condominium fire safety requirements." Am. Compi.

¶f1, 3; Ch. 2019-165, Laws of Fla. The challenged provision of the act adds a right to attorney's fees and costs for those who prevail "in a challenge to a development order" that is allegedly "inconsistent with a local government's [c]omprehensive [p]lan." Am. Compi. ¶ 24-

25; § 163.3215(8)(c), Fla. Stat.

Secretary Lee does not enforce any provision in the act. Plaintiffs do not allege otherwise. To the contrary, Plaintiffs allege it is Director Lawson, as the Executive Director of

Department of Economic Opportunity who "administers Chapter 163, Florida Statutes, portions of which are challenged as unconstitutional in this action." Am. Compi.23. Nor are any of

Secretary Lee's specific responsibilities implicated by any of the act's provisions. Secretary Lee is the head of the Department of State, which has Elections, Corporations, Historical Resources,

Cultural Affairs, and Library and Information Services as its divisions. § 20.10, Fla. Stat.

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constitutional challenge. Am. Compl. ¶ 22. The relief requested against Secretary Lee is limited to "expungeinent." Am. Compi. ¶ 22 & (wherefore clauses). The requested injunction against enforcement is directed at Director Lawson. Am. Compi. ¶ 23 & (wherefore clauses).

II. ARGUMENT

Secretary Lee is not a proper party to this action on the bases Plaintiffs allege. See Am.

Comp!. ¶ 22 (custodian of state laws and expungement authority).

A. Standards.

This case arises under Chapter 86, the Declaratory Judgment Act, which authorizes trial courts to render declaratory judgments on the existence, or non-existence, of any immunity, power, privilege, or right. Am. Compl.¶f33, 39, 48; § 86.011, Fla. Stat. Plaintiffs seek to declare the challenged act and one of its provisions unconstitutional, enjoin their enforcement, and expunge them from the Laws of Florida and prevent their codification into statute, Am.

Compl. (wherefore clauses). To invoke the jurisdiction of the court, however, there "must exist some justiciable controversy between adverse parties that needs to be resolved." Martinez v.

Scanlan, 582 So. 2d 1167, 1171 (Fla. 1991). Specifically, "an actual, present, adverse and antagonistic interest in the subject matter," is a required element "in order to maintain the status of the proceeding as being judicial in nature and therefore within the constitutional powers of the courts." Martinez, 582 So. 2d at 1170 (quoting May v. Holley, 59 So. 2d 636, 639 (Fla.1952)).

Accordingly, the "proper defendant in a lawsuit challenging a statute's constitutionality is the state official designated to enforce the statute," Atwater v. City of Weston, 64 So. 3d 701 (Fla.

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she is a proper defendant only if(1) the lawsuit "involves a broad constitutional duty of the state implicating specific responsibilities of the state official" and (2) "the state official has an actual, cognizable interest in the challenged action." Scott v. Francati, 214 So. 3d 742, 746 (Fla. 1st

DCA 2017), review denied sub nom, Francati v. Scott, No. SC17-730, 2017 WL 2991836 (Fla.

July 14, 2017).

B. Custody of statutes and expunction authority do not make Secretary Lee a proper party.

Plaintiffs allege that Secretary Lee, as "custodian of the laws of the state," and having

"authority to expunge an unconstitutional statute upon order of a court," make her a proper party here. Am. Compi. ¶ 22. They do not. Under Plaintiffs' logic, Secretary Lee would be a proper party to defend every constitutional challenge of a statute. She certainly is not. See Women 's

Emergency Network v. Bush, 323 F.3d 937, 949-50 (11th Cir. 2003) (rejecting jurisdiction over

"Governor's general executive power...is sufficient to make him a proper defendant whenever a party seeks a declaration regarding the constitutionality of a state law," then it is absurd to conclude so here. Francati, 214 So. 3d at 746.

To the contrary, the Secretary of State has been found to not be a proper party on substantially the same basis alleged to require her here, in substantially the same action. See

702-03. The Secretary was named because she "is responsible for registering, indexing,

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segregating and classifying all acts of the Legislature, including SB 360 [the challenged act].

See Sections 15.01, 15.155, Florida Statutes." City of Weston v. Atwater, 2009 WL 8629991, ¶ 7

(Fla. 2d Jud. Cir. July 8, 2009) (Compl.)Plaintiffs allege a similar basis here. Am. Compl. ¶ 22

(citing section 15.02, Florida Statutes). The lower court denied the Secretary's motion to dismiss, On appeal, the First District Court of Appeal reversed and remanded with instructions to dismiss the action. City of Weston, 64 So. 3d 705. It did not matter that the Secretary was the custodian of the challenged act. The Secretary was not a proper party because "that official does not enforce Florida's growth management laws" challenged in that action. Id. 704.Secretary

Lee still has no enforcement authority over growth management laws.

"who has an actual, cognizable interest in the challenged action," will an official without enforcement authority be a proper defendant. Scott v. Francati, 214 So. 3d 742, 746 (Fla. 1st

DCA 2017). This is not such a circumstance,

There is no broad constitutional duty of the state at issue in this action. At issue is

Plaintiffs' and its members' ability "to challenge developments [sic] orders that are inconsistent with a local government's [c]omprehensive [p]lan" and otherwise "ensuring the proper implementation of Florida's growth management laws." Am. Compl. ¶J 20, 25. That is not a duty of the state, let alone a broad constitutional duty like adequately funding the public education system, Coal.for Adequacy & Fairness in Sch. Funding, Inc. v. Chiles, 680 So.2d 400

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(Fla. 1996), or redistricting the state after each decennial census, Brown v. Butterworth, 831

So.2d 683, 689-90 (Fla. 4th DCA 2002), which are the types of duties found sufficient.

Nor is Secretary Lee's expungement authority implicated by this action. At most, that authority is limited to extraordinary actions for writs of mandamus, filed directly in the Supreme

Court, where "the functions of government will be adversely affected unless an immediate determination is made by this [Florida Supreme] Court." Moreau v. Lewis, 648 So. 2d 124, 126

(Fla. 1995). The only context in which this occurs is when provisions in General Appropriations

268 (Fla. 1971) (challenging appropriations in the 1971 General Appropriations Act); Murray v.

Lewis, 576 So. 2d 264 (Fla. 1990) (challenging provisos to appropriations in the 1990-9 1

General Appropriations Act); Moreau, 648 So. 2d 124 (challenging appropriations in the 1994-

95 General Appropriations Act).

Otherwise, "under ordinary circumstances," the Florida Supreme Court recognizes that

So. 3d at 705 (emphasis in original). Secretary Lee's custodial function and expunction authority do not create such a controversy as to the merits of this action.

III. CONCLUSION

Secretary Lee has no actual, cognizable interest in this action and it should be dismissed against her with prejudice because the Court lacks subject matter jurisdiction.

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WHEREFORE, Secretary Lee respectfully requests that the Court grant her motion to dismiss and dismiss this action, as against her, with prejudice.

Respectfully submitted,

/s/Ashlev E. Davis BRADLEY R. McVAY (FBN 79034) General Counsel [email protected] ASHLEY E. DAVIS (FBN 48032) Deputy General Counsel [email protected]

FLORIDA DEPARTMENT OF STATE R.A. Gray Building, Suite 100 500 South Bronough Street Tallahassee, Florida 32399-0250 Phone: (850) 245-6536 Fax: (850) 245-6127

Counsel for Secretary of State

CERTiFICATE OF SERVICE

I HEREBY CERTIFY that on this 28th day of February 2020, a true copy of the foregoing was filed electronically with the Clerk of Court through the Florida Courts eFiling Portal and served on all counsel of record via email using e -service.

/s/Ashley E. Davis ATTORNEY

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Filing # 107959058 E -Filed 05/26/2020 05:27:2 1 PM

iN THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT iN AND FOR LEON COuNTY, FLORIDA

1000 FRIENDS OF FLORIDA, iNC., a Florida not for Profit Corporation; and ROBERT J. HOWELL,

Plaintiffs,

V. CaseNo. 2019 CA 002215

THE STATE OF FLORIDA, LAUREL M. LEE, n her Official Capacity as Secretary of State of Florida, and KEN LAWSON, in his Official Capacity as the Executive Director of the Florida Department of Economic Opportunity;

Defendants.

PLAINTIFFS' MEMORANDUM IN OPPOSITION TO DEFENDANTS' MOTIONS TO DISMISS

COME NOW the Plaintiffs, 1000 FRIENDS OF FLORIDA, INC. ("1000 Friends") and

ROBERT J. HOWELL, by and through undersigned counsel and hereby file this memorandum

in opposition to the Motion to Dismiss filed by Defendant, THE STATE OF FLORIDA,

LAUREL M. LEE, in her Official Capacity as Secretary of State of Florida and the Motion to

Dismiss filed by KEN LAWSON, in his Official Capacity as the Executive Director of the

Florida Department of Economic Opportunity, For reasons stated herein Plaintiffs respectfully

submit those motions should be DENIED.

iNTRODUCTION

This action seeks to have CS/CS/HB7103, enacted as Chapter 2019-165, Laws of Florida,

declared unconstitutional as a violation of the single -subject rule in Article III §6 Florida

Constitution and expunged from the official record of Florida statutes on that account.in

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addition, this action seeks to have Section 7 of said Law (now codified as §163.3215(8) Fla.

Stat.) voided on the grounds that it is facially unconstitutional under the Florida Constitution and

Amendment One of the United States Constitution, and unconstitutional as a violation of the substantive due process clause in art. I, Section 9, Fla. Consi. Because § 163.3215(8) Fla. Stat. was reenacted in the 2020 codification of the laws of Florida, the one -subject claim is, however, now moot and no longer before the court. The substantive claims that §163.3215(8) Fla. Stat, is facially unconstitutional remain active and properly before the court.

1. DEFENDANTS ARE PROPER PARTIES

Both motions to dismiss claim that the moving defendant is not a proper party to defend the action. For reasons stated below, those claims should be REJECTED.

Initially, Plaintiffs observe that this action is not an action challenging § 163.3215(8) Fla.

Stat, in application. In such an action, the party attempting to enforce the provision would be the proper party. Instead, this is a challenge to the constitutionality of § 163.3215(8) Fla. Stat, on its face on the grounds that it violates substantive due process and because its existence chills and violates protected rights of Floridians including particularly these Plaintiffs by making the exercise of those rights risky and costly. Under these circumstances, some entity of the State of

Florida must be amenable to suit to defend the constitutionality of the statute against these plaintiffs' claims that the statute facially violates their fundamental rights. This proposition is exemplified most conclusively in Dade Cty. Classroom Teachers Ass 'iiv. Legislature of Fla.,

269 So.2d 684 (Fla. 1972). There, the Supreme Court emphatically stated that courts have a duty to enforce constitutionally protected rights when the legislature fails to do so:

We think it is appropriate to observe here that one of the exceptions to the separation -of -powers doctrine is in the area of constitutionally guaranteed

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or protected rights. The judiciary is in a lofty sense the guardian of the law of the land and the Constitution is the highest law. A constitution would be a meaningless instrumentwithout some responsible agency of government having authority to enforce it.As Chief Justice Charles Evans Hughes once stated, 'We are under a constitution, but the constitution is what the judges say it, is, and the judiciary is the safeguard of our liberty and of our property under the constitution.'

Id., 269 So. 2d 684 at 686, (Italics added.)

Defendants rely uponScott v. Francati,214 So.3d 742 (Fla. Pt DCA 2017) andAtwater v. City of Weston, 64 So.3d 701 (Fla. 1t DCA 2011) to support their arguments. These decisions primarily deal with who is not a proper party (i.e., the govemor, the legislature, etc.) in lawsuits brought by parties who do not claima current injury to the violation of their constitutional rights.In short, they do not address the essential question of affording a forum to avoid violations of constitutionally protected substantive rights, resulting from the statute's effective preclusion of the ability of 1000 Friends members and Howell to exercise their statutory rights to enforce their local government comprehensive plan, such as these Plaintiffs have claimed.

Hence, these two cases have not examined the issue raised in a case such as this one.

These are the essential differences. InScott v. Francatiaformernursing home resident brought an action claiming a statute "limiting parties that can be named as defendants" whom a current nursing home residentcould sue violated her equal protection rights.Francati,214

So.3d at 745. What was absent in the allegations was any claim that Francati's constitutional rights were actually being violated.

InAtwater v. City of Westoncertaincities and countiesbrought an action to challenge a statute under the single subject and of anti -unfunded mandate constitutional provisions. Neither

Francatinor Cityof Westoninvolved private persons claiming the chilling and cutting off of fundamental rights guaranteed by the Florida and United States Constitutions. What's more, as

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shown below, Atwater supports the propriety of the Department of Economic Opportunity as the proper defendant, given its statutory responsibilities over the statutory program requiring the adoption and implementation of local government comprehensive plans.

At the heart of the Supreme Court's analysis in Dade Cty. Classroom Teachers Ass 'ii was the claim that the state was currently suppressing the plaintiffs' constitutional rights, which is the crux of the claim in this case. Both present claimants are directly affected by the statute at issue and both have made allegations that support their standing. Hence, the State may not seek to avoid the court's scrutiny with a claim of "not me; sue someone else!" Plaintiffs have sued the two state officials that are in the best positions to defend this lawsuit. As the Supreme Court held in Dade Cty. Classroom Teachers Ass'n:

When the people have spoken through their organic law concerning their basic rights, it is primarily the duty of the legislative body to provide the ways and means of enforcing such rights; however, in the absence of appropriate legislative action, it is the responsibility of the courts to do so.

Id., 269 So. 2d at 686.

Plaintiffs respectfully submit that the legislature and constitution have provided sufficient bases to require these Defendants to defend the assailed statute in this case.

A. DEFENDANT SECRETARY OF STATE

The primary remedy Plaintiffs seek (the single subject claim being moot) is to have

§163.3215(8) Fla. Stat, voided and expunged from the official records of the state on grounds that it currently violates Plaintiffs' fundamental right of free speech and basic right of substantive due process.

The Secretary of State is a proper party. The office is created by law as the head of the

Department of State and is appointed by the Governor with duties to, inter alia, "perform the

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functions conferred by the State Constitution upon the custodian of state records."§20.10(1)

Fla. Stat.' In this regard the Department of State:

Has "custody of" the original statutes thereof and of "the laws of the state,"3

Has the duty to "preserve" "All original acts and resolutions passed by the Legislature,"4

3. Has the duty to "Select, segregate, and classify all acts of the Legislature" and "furnish

true and accurate copies" to named officials, agencies and persons,5

The duty to "have the custody of the constitution and Great Seal of this state, and of the

original statutes thereof,"6 and

'§ 20.10, Fla. Stat.: There is created a Department of State. (1) The head of the Department of State is the Secretary of State. The Secretary of State shall be appointed by the Governor, subject to confirmation by the Senate, and shall serve at the pleasure of the Governor. The Secretary of State shall perform the functions conferred by the State Constitution upon the custodian of state records. 2§ 15.01, Fla. Stat.: The Department of State shall have the custody of the constitution and Great Seal of this state, and of the original statutes thereof and of the resolutions of the Legislature, and of all the official correspondence of the Governor...... § 15.02, Fla. Stat.: The Department of State shall have custody...of the laws of the state and books, papers, journals, and documents of the Legislature. § 15.02, Fla. Stat.: All original acts and resolutions passed by the Legislature, and all other original papers acted upon thereby, together with the Journal of the Senate, and the Journal of the House of Representatives...." § 15.155, Fla. Stat.: (1) Immediately after any act of the Legislature or any resolution or memorial is filed in the office of the Department of State, the department shall: (a) Select, segregate, and classify all acts of the Legislature, including memorials and resolutions, by dividing them into the following two classifications: Volume I, General Acts, and Volume II, Special Acts;

(d) Furnish true and accurate copies of such laws, resolutions, and memorials passed by the Legislature to the Office of Legislative Services for publication.

15.07, Fla. Stat.:

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5 The authority to certify copies of state laws which shall have the same force in evidence

as the originals thereof.7

Given these weighty duties, the office of the Secretary of State has much more than a cursory interest in seeing whether any of the statutes it is required to be custodian, preserver and certifier thereof is unconstitutional.The Secretary's interest must include the duty to defend their constitutionality - at least when other agencies are not appropriate or competent to do so. In that regard, the Secretary's stated concern that it might be required to defend all the state's statutes is overblown. The constitutionality of most statutes is challenged in as applied actions in which a proper party (which often is a private party) is defending it and facially invalid statutes are usually defended by a similar proper party who has a direct interest in defending it or by a proper administering agency.

The Secretary of State has freely admitted that the Supreme Court has found it to be a proper defendant in actions seeking to expunge unconstitutional provisos and vetoes in general appropriation bills. Among the many decisions to support this is Brown v. Firestone, 382 So. 2d

654 (Fla.1980) (holding, inter alia,"any person, as citizen and taxpayer, may bring a declaratory judgment action to challenge the constitutionality of provisions in a general

"The Department of State shall have the custody of the constitution and Great Seal of this state, and of the original statutes thereof, and of the resolutions of the Legislature, and of all the official correspondence of the Governor. § 15.03(2)(a), Fla. Stat.: The Department of State shall be the custodian of the great seal of the state. (b) The great seal of this state shall also be the seal of the Department of State, and the department may certify under said seal, copies of any statute, law.., placed in its custody, keeping and care, and such certified copy shall have the same force and effect in evidence, as the original would have.

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appropriations act." Id. at 671.) Actions of this type strike portions of statutes even though they do not impugn protected individual constitutional rights; instead, they strike measures that are unconstitutional only because the legislature went about doing its business in the wrong way.

If caselaw permits any taxpayer or citizen who does not claim special injury to or suppression of substantive constitutional rights to bring a constitutional challenge to the appropriations act by direct action against the Secretary of State, denying equal access to courts to persons whose individual protected constitutional interests are violated would deny them equal protection of the law in seeking a remedy. The Secretary of State is a proper defendant in this action.

B. DEFENDANT EXECUTIVE DIRECTOR OF THE FLORIDA DEPARTMENT OF ECONOMIC OPPORTIJNITY

The Department of Economic Opportunity's defense that it is not a proper defendant in this action should be REJECTED. As stated by the First District in Atwater v. City of Weston, 64

So. 3d 701, 704 (Fla. DCA 2011):

[T]he Secretary of Community Affairs appears to be the responsible official [ed., to defend actions challenging the constitutionality of a provision of Chapter 163 Florida Statutes], as the Department of Community Affairs8 is the state land planning agency. See § 163.3164(20), Fla. Stat. See also § 163.3184(6), 380.032, Fla. Stat. (state land planning agency authorized to reviewalllocalproposedcomprehensiveplanamendmentsand developmentsofregionalimpactforcompliancewithstatutory requirements).

The Department of Economic Opportunity is a proper party to defend challenges, such as

8 Chapter 2011-142,Sec. 3, transferred the Division of Community Planning from the Department of Community Affairs to the Department of Economic Opportunity.

STATE DEPARTMENTS--REORGANIZATION--TRANSFER OF POWERS AND DUTIES, 2011 Fla. Sess. Law Serv.(S.B. 2156) (WEST)

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this one, to growth management provisions of Chapter 163 that facially violate protected individual constitutional rights of parties who are injured by them.A cursory review of the contents of Chapter 163, PartII. Growth Policy; County and Municipal Planning; Land

Development Regulation readily reveals that the Department of Economic Opportunity, operating as the State Land Planning Agency, has numerous administrative duties imposed upon it by law and a pervasive role in the statutory scheme for requiring the adoption and enforcement of local government comprehensive plans that meet the governing statutory standards.

The Department of Economic Opportunity is the designated "State Land Planning

Agency"9, charged with enforcing, administering, and overseeing theCommunity Planning Act.

§163.3164 (44), Fla.Stat. As such,itis charged with reviewing and determining the

"compliance" of localgovernment comprehensive planswiththegoverningstatutory

requirements. § 163.3184 (1) - (6), Fla. Stat.The DEO is a "reviewing agency[1"relative to comprehensive plan amendments proposed by local governments for state review. § 163.3184 (1)

(c) 1, Fla. Stat. The Department isthesole agency with the authority to bring a legal challenge to an adopted amendment to a local government comprehensive plan. §163.3184 (3) (c) 4,

§ 163.3184 (4) (a), (c), (d), and (e), Fla. Stat., and §163.3184 (5) (b), Fla. Stat. Even for "small scale" local government comprehensive plan amendments (which DEO may not challenge), the agency issues final orders deeming such amendments "in compliance" when thatisthe determination rendered upon legal challenge. § 163.3187 (5) (c), Fla. Stat.

Next, the DEO is charges with reviewing'0 and authorized to administratively challenge the "land development regulations" which implement local comprehensive plans for consistency

§ 161.54 (10), Fla. Stat. 10§ 163.3202 (4) and (5), Fla. Stat.,

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with those plans. § 163.32 13, Fla. Stat.

Beyond theseprimaryresponsibilities, DEOischargedwith numerousother responsibilities concerning the adoption, amendment, and enforcement of local government comprehensive plans, including, but not limited to:

1. The State Land Planning Agency is responsible for reviewing the boundary delineation of the urban infill and redevelopment areas. § 163.25 17, Fla. Stat.

2. The State Land Planning Agency is lead agency charged with charged with coordinating all "all state and regional agencies involved in the administration and implementation of the Community Planning Act" to work with local government in the preparation and adoption of comprehensive plans and land development regulations." § 163.3204, Fla. Stat.

3. The State Land Planning Agency authorized to certify locally - designated areas, for which state and regional agency review of comprehensive plan amendments is eliminated. § 163.3246, Fla. Stat.

4. The State Land Planning Agency, under the "Manufacturing Competitiveness Act,""shall coordinate the manufacturing development approval process" as authorized by local government land development ordinances.§ 163.3252 (2), and § 163.3253, Fla. Stat

While DEO may claim it plays no direct role in litigation over the enforcement of comprehensive plans through development orders (the legal actions to which the law challenged in his case apply), the agency's legal responsibility to enforce the statutory requirements regulating the content of local comprehensive plans (described above) directly impacts the enforceability of comprehensive plans under the challenged law.It is the DEO, through its compliance review of local comprehensive plans, that determines scope and content of the plan provisions to be enforced under the Act. Section 163.32 15 (1), Fla. Stat, limits the availability of the comprehensive plan enforcement cause of action to "aggrieved or adversely affected

" § 163.3251 (1), Fla. Stat.

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part[ies]", and § 163.3215 (2), Fla. Stat, defines "aggrieved or adversely affected party" to mean

"any person...that will suffer an adverse effect to an interest protected or furthered by the local government comprehensive plan... ." (emphasis added).

Just as the Secretary of State has more than a "cursory interest" in the constitutionality of the Growth Management provisions of Chapter 163 so does the Department of Economic

Opportunity acting as the State Land Planning Agency, and, as shown above, even more so. The

DEO is a proper defendant under Scott v. Francoti,214 So. 3d 742 (Fla. 1st DCA 2017) because it has an actual, cognizable interest12 in this case, which involves the statutory scheme requiring the adoption and enforcement of the local comprehensive plans the agency is charged with administering. As explained in Atwater, the state land planning agency enforces Florida's growth management laws.

The Department of Economic Opportunity is a proper party to defend facial challenges to those laws.

Plaintiffs respectfully submit that Defendants' motion to dismiss on their claims that they are not proper parties to defend the action should be DENIED.

Jane West, Esquire Policy and Planning Director 1000 Friends of Florida Fla.BarNo. 159417 24 Cathedral Place, Suite 504 St. Augustine, FL 32084 Office: (904) 471-0505 1west(Zi i 000fof org Counsel for 1000 Friends of Florida

12 See 214 So. 3dat 746.

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/s/ TKA Terrell K. Arline, Esquire Terrell K. Arline Attorney at Law Fla. Bar. No. 306584 1819 Tamiami Drive Tallahassee, FL 32301 (850) 321-8726 rIineEa\vcil.com iarlineEav.com Co -Counsel for 1000 Friends of Florida

/s/ RG Richard Grosso, Esq. Richard Grosso, P.A. Fla. Bar No. 0592978 6919 W. Broward Boulevard Plantation, FL 33317 Mail box 142 o.riclaroo.com 954-801-5662 Co -Counsel for 1000 Friends of Florida

/s/ JWL Joseph W. Little, Esq. Fla. Bar No. 196749 3731 NW 13th Place Gainesville, FL 32605 352-372-5955 littieen:v)gmail.com Co-Counselfor 1000 Friends of Florida

Certificate of Service

I hereby certify that a copy of the above and foregoing has been furnished to all Counsel via the Court's E -Portal system on this 26th day of May, 2020.

Jane West, Esquire Policy and Planning Director

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1000 Friends of Florida Fla. Bar No. 159417 24 Cathedral Place, Suite 504 St. Augustine, FL 32084 Office: (904) 471-0505 or Cou,iselfor 1000 Friends

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Filing # 108167298 E -Filed 06/01/2020 07:05:11 AM

IN THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT IN AND FOR LEON COUNTY, FLORIDA

1000 FRIENDS OF FLORIDA, INC., a Florida not for Profit Corporation; and ROBERT J. HOWELL,

Plaintiffs,

V. CaseNo, 2019 CA 002215

Defendants,

PLAINTIFFS' SUPPLEMENTAL MEMORANDUM IN OPPOSITION TO DEFENDANTS' MOTIONS TO DISMISS Plaintiffs submit the following Supplemental Memorandum in Opposition to Defendants'

Motions to Dismiss. For reasons stated below, Plaintiffs respectfully submit the Motions to

Dismiss should be DENIED.

I. The Plaintiffs Have Standing

The DEO supports its standing argument by citing to U.S. Supreme Court "case or

controversy" decisions, which are inapplicable to Florida's Constitution which do not contain the

"case or controversy" limit on judicial jurisdiction that is found in the IJ.S. Constitution. (Lawson

Motion, para 25, In 4). TnDep't of Revenue v. Kuhnlein,646 So. 2d 717 (Fla. 1994), the Supreme

Court explained:

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Unlike the federal courts, Florida's circuit courts are tribunals of plenary jurisdiction. Art. V, § 5, Fla. Const. They have authority over any matter not expressly denied them by the constitution or applicable statutes. Accordingly, the doctrine of standing certainly exists in Florida, but not in the rigid sense employed in the federal system. We thus are not persuaded by the federal standing cases cited by the State. (emphasis added) id at. 720.

DEO also relies on Hayes v. Guardianship of Thompson, 952 So.2d 498 (Fla. 2006), and the cases cited therein. (Lawson Motion, para. 28). That precedent recognizes that standing can exist where a litigant demonstrates that he or she "reasonably expects to be affected by the outcome of the proceedings, either directly or indirectly." Hayes, at 505. (citing Brown v. Firestone, 382

So.2d 654, 662 (Fla.1980).Importantly, Hayes emphasizes that "[T]hus, standing to bring or participate in a particular legal proceeding often depends on the nature of the interest asserted."

Hayes, 952 So.2d at 505. See also, Cruz v. Community Bank & TrustofFlorida, 2019 WL 3755444 at1. (Fla. 5th DCA 2019) (quoting Hayes).

Consideration of the nature of the right asserted supports standing here. 1000 Friends is an organization specifically created to enforce the statutory requirement that local governments adopt comprehensive plans in compliance with state law and then adhere to them through their development decisions.1000 Friends has previously "brought cases under the Consistency

Challenge Statute and supported citizens and local governments in such cases" and its Amended

Complaint explains that Ch. 20 19-165 "makes it economically infeasible for 1000 Friends and its individual members to challenge development orders... and unreasonably chills the ability of 1000

Friends to implement its corporate purposes to further comprehensive planning in Florida through litigation." Amended Complaint atIr 20, 25.Plaintiff 1000 Friends is the same organizational client that was found to be an adversely affected party with standing to bring suit under § 163.3215,

Fla. Stat, in Nassau County v. Willis, 41 So.3d 270, 277-278 (Fla. 1st DCA 2010), cited by the

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DEO. In Nassau County, standing was recognized under action brought pursuant to § 163.3215,

Fla. Stat, where plaintiffs were "members of an organization whose primary purpose is the study and protection of natural resources and the advocacy of sound land use and growth management policies affecting the environment". See, Nassau at 277-278.

Howell has already been injured by the spectre of an attorney fee award in precisely such a case.The DEO attacks the Amended Complaint's "bare statement that individual Plaintiff

Howell "was forced to dismiss... [a] case on June 24, 2019 because of HB 7103 and the potential significant financial liability he personally risked by proceeding to trial" as "fundamentally conclusory." Amended Complaint at if 21. That allegation, which must be accepted by the Court as true in a Motion to Dismiss hearing is a clear, specific, and true fact. It demonstrates that Howell has already been injured by the challenged statute, having had to relinquish his cause of action as an "adversely affected person" under § 163.3215, Fla. Stat, and ability to prevent a development inconsistent with his County's comprehensive plan from adversely impacting his interests. A statutory requirement for the non -prevailing party to pay attorney fees constitutes a 'new obligation or duty,' and is therefore substantive in nature.L. Ross, Inc.v. R. W. Roberts Construction

Company, Inc., 466 So.2d 1096, 1098 (Fla. 5th DCA 1985) ("substantive rights and obligations as to attorney's fees in particular types of litigation vest and accrue as of the time the underlying cause of action accrues" and "the legislature cannot constitutionally increase an existing obligation, burden or penalty as to a set of facts after those facts have occurred").

II. The Court Has Jurisdiction Over the Subiect Matter - This Cha11ene is Ripe

The Court should reject the Department of Economic Opportunity's (DEO) argument that the court lacks subject matter jurisdiction because there is no case or controversy (i.e., no justiciable controversy) or bona fide dispute before the court. The "bona fide, actual, present

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practical need" for a declaratory statement required by State of Florida v. Florida Consumer

Action Z\Tetwork, 830 So.2d 148 (Fla 1st DCA 2002) exists.The injury brought about by the challenged law exceeds the "general, speculative fear of harm" deemed inadequate under

Florida Consumer Action Network.'

The immediate injury in this case however, is that the prevailing party fee provision is currently precluding enforcement of the very growth management law that 1000 Friends was created to enforce and Howell has attempted to enforce before the challenged law created the risk of an adverse attorney fee award. A challenge is ripe when an affected person has to choose between disadvantageous compliance and risking sanctions. Montgomery v. H.R.S., 468 So.2d

1014 (Fla. 1t DCA 1985).

That the challenged law precludes Plaintiffs from exercising their statutory rights to defend their interests under Florida's comprehensive planning law, and that the challenge is based, among others, on First Amendment grounds, supports the ripeness of this case. As explained in New

Mexicans for Bill Richardson v. Gonzales, 64 F.3d 1495 (10th Cir. 1995):

"First Amendment rights of free expression and association are particularly apt to be found ripe for immediate protection, because of the fear of irretrievable loss. In a wide variety of settings, courts have found First Amendment claims ripe, often commenting directly on the special need to protect against any inhibiting chill." 64 F.3d at 1500. (emphasis added).

Thus, wrote the Court in In New Mexicans for Bill Richardson:

"our ripeness inquiry in the context of this facial challenge to New Mexico's election law statute focuses on three elements: (1) hardship to the parties by withholding review; (2) the chilling effect the challenged law may have on First Amendment liberties; and (3) fitness of the controversy for judicial review. Our ripeness inquiry is not to be applied mechanically but rather, with flexibility ...." Id. (citation omitted)

'Id. at 152.

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In Dep't of Revenue v. Kuhnlein, 646 So. 2d 717 (Fla. 1994), plaintiffs brought a constitutional challenge to a legislative act imposing an impact fee on cars purchased or titled in other states that then are registered in Florida. Id. at 719. The Court rejected the state's argument that plaintiffs lacked standing because they either have not paid the fee or have not requested a refund of any fee paid, holding that:

"We...do not believe there is any requirement that the plaintiff must pay the fee or request a refund, at least in the present case. The fact that these plaintiffs face penalties for failure to pay an allegedly unconstitutional tax is sufficient to create standing under Florida law." Id at. 720. The Kuhnlein decision also acknowledged the flexibility with which the Courts can approach the issue of justiciability, observing that it had "accepted jurisdiction in Martinez v.

Scanlan, 582 So. 2d 1167, 1170 (Fla. 1991) to resolve a dispute between various groups and the

Governor over the validity of workers' compensation laws, even though the case arguably came close to being a request for an advisory opinion." Kuhnlein at 721.

The fact that the Plaintiffs, because of the challenged law, cannot know whether they can exercise their rights without creating substantial liability for themselves supports their need for a declaratory judgment. Section 86.101, Fla. Stat. pronounces:

Construction of law. - This chapter is declared to be substantive and remedial. Its purpose is to settle and to afford relief from insecurity and uncertainty with respect to rights, status, and other equitable or legal relations and is to be liberally administered and construed. (emphasis added).

See also Chiles v. Children A, B, C, D, E, & F, 589 So. 2d 260, 263, n.5 (Fla. 1991)

(observing "the purpose of declaratory relief' is "to afford relief from insecurity and uncertainty with respect to rights, status, and other equitable or legal relations" and thus the declaratory judgment statute is to be construed liberally.") The Supreme Court has also explained the Act's purpose is to "relieve litigants of the common-law rule that no declaration of rights may be

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judicially adjudged until a right has been violated and to serve as an instrument of preventive justice." Watson v. Claughton, 160 Fla. 217, 34 So. 2d 243 (Fla. 1948). For this reason, this Court should accept jurisdiction in this case.

The Apthorp v. Detzner 162 So. 3d 236 (Fla. 1 DCA 2015) decision cited by DEO is factually inapplicable. There, the Court found no justiciable case where the plaintiff brought a constitutional challenge to Florida's "qualified blind trust" law, arguing that the law would allow candidates and public officers to avoid the required "full and public disclosure," as mandated by the "public trust" provisions of Art. II, § 8(a), Fla. Const. The Court found that nojusticiable issue existed because no candidate or public officer had used a qualified blind trust as provided for in the challenged statute.Apthorp, supra at 241.In other words, there was no violation of the

Constitution and would not be unless and until a candidate or public officer took advantage of the qualified blind trust allowance in the statute. That is the opposite of this case, where the constitutional violation exists every day that a member of 1000 Friends of Florida or Howell is effectively precluded from exercising their rights to challenge a development order that violates a local comprehensive plan for fear of not prevailing and having to pay the Defendant's attorneys fees.

DEO's analogy to Bryant v. Gray, 70 So.2d 581 (Fla 1954) highlights why the nature of this case supports the view that this matter is now justiciable. In Bryant, the Supreme Court dismissed a complaint for a declaratory judgment for lack of a bona fide, actual, present need for a declaration that Bryant would continue to be eligible to run for Governor if he became a candidate in the special election to be held to fill the vacancy created by the death of late Governor McCarty and to fill the remainder of the term. The Court found the case unripe because Bryant did not allege that he will become a candidate for the special election or for the 1956 election. Thus, the

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Court found the case was speculative because Bryant alleged only that he was "considering" becoming a candidate. Id. at 524-584.

It is important to note here that an "affected person" who seeks to exercise their rights under § 163.3215, Fla. Stat to challenge a locally -issued development order must do so under a strict 30 -day deadline from rendition of the development order. §163.3215 (3), Fla. Stat. It is not practical for such a person to learn of the issuance of a development order, decide they intend to bring a challenge, and then seek and secure a final judicial declaratory judgment that the automatic attorneys' fee provision is unconstitutionalall before the 30 -day clock has run. The nature of the law under challenge here supports a jurisdiction.

Where, as here, the very point of the substance of the legal challenge is that the Plaintiffs ability to enforce their legal rights under this law is now, as a practical matter, precluded by the challenged law2, to dismiss their claims unless and until they are actually subject to an attorney fee award is to allow the unconstitutional law to stand unchallenged.This would allow the

Legislature to insulate a constitutional challenge to this and any similar law by legislating away any potential injured parties.

III. The Department of Economic Opportunity's Role in the Community Plannint! Process Makes it a Proper Defendant.

DEO stresses its lack of responsibility to implement the challenged attorney fees provision, and that it is not a proper party to an action brought under § 163.3215. But this ease is not an action

2 Plaintiffs allege the attorney fee provision will have an "egregious chilling effect" and "undermines" the "purpose" and "intent" of the Chapter 163 statutory scheme that requires the adoption of comprehensive plans and consistency of all development with those plans. Amended Complaint at Tiff 13, 16.

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under that statute, and DEO's exclusive and pervasive role in the overall statutory scheme that culminates in the enforcement of comprehensive plans under section 163.32 l5makes it the appropriate state agency to defend this suit. Its insistence that this suit can only be brought defensively against a prevailing party in such a suit should not be accepted.The reality that, because of the challenged law, that day will likely not come, is the very injury that supplies jurisdiction here.

The DEO argues that injunctive relief would not result in any relief for the Plaintiffs, because the Department does not implement, administer, or enforce section 163.3215. (Lawson

Motion, ¶ 42).The relief, however, would be the striking of an unconstitutional law and the restoration of the ability of 1000 Friends and its members and Howell to defend their communities under the § 163.3215, Fla. Stat. cause of action.

IV. Whether the Automatic Attorneys Fee Provision is Labelled a "Sanction" is not Relevant.

The DEO argues that the suit should be dismissed because the attorney fees provisions are not, contrary to the nomenclature in the Amended Complaint, a "punishment" or "sanction".

However, the use of the word in the Amended Complain "sanction" is irrelevant to whether the

Plaintiffs possess the requisite interest to bring this case. The adverse injury is that the prevailing party fee provision will preclude enforcement of the very growth management law that 1000

Friends was created to enforce and Howell has attempted to enforce before the challenged statute created the risk of an adverse attorney fee award.

DEO cites to a several decisions for the general proposition that a complaint for declaratory relief must allege facts showing that there is bona fide, actual, present, and practical need for a

The challenged prevailing party attorney fees provision was contained within "[amact relating to community development and housing," enacted as Ch. 20 19-165, Laws of Florida.

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declaration, including Okaloosa Island Leaseholders Ass 'ii, Inc. v. Okaloosa Island Authority, 308

So.2d 120, 122-123 (Fla. 1st DCA 1975),which held that "a complaint for declaratory relief must allege facts showing that there is a bona fide, actual, present and practical need for a declaration."

Such a need exists here,

The statute which now makes a non -prevailing party automatically liable for the opponent's attorneys' fees, regardless of the good faith, support for or merit of the action, had previously been interpreted to grant "significantly enhanced standing to challenge the consistency of development decisions with the Comprehensive Plan" compared with prior standing law.

Pinecrest Lakes, Inc., v. Shidel, 795 So. 2d 191, 197 (Fla. 4th DCA. 2001), review denied, 821 So.

2d 300 (Fla. 2002). The courts recognize it as a remedial statute that it is to be "construed broadly to accomplish its stated purposes and objectives." Education Development Center, Inc. v. Palm

Beach County, etal., 751 So.2d 621, 623 (Fla. 4thDCA 1999) (citing §163.3194(4)(b), Fla. Stat.)

Interpreting and enforcing that intent, the Florida Supreme Court established a "strict scrutiny" standard of judicial review that requires a strict showing of comprehensive plan consistency. Board of County Commissioners of Brevard County v. Snyder, 627 So.2d 469, 475-

476 (Fla. 1993)

The decision in Pinecrest Lakes, Inc., v. Shidel, 795 So. 2d 191 (Fla. 4th DCA 2001), upon which DEO relies, most compellingly explains the necessity for the Court to accept jurisdiction in in this case and declare unconstitutional the automatic attorney fees provision. The Pinecrest Lakes analyzing "the history of the land development statutes" found the cause of action, § 163.3215 Fla.

Stat. was meant to remedy the problem that, prior to its enactment, local governments "were left to interpret [their comprehensive] plans for themselves, largely free from effective oversight by the state."Pinecrest at 199. The Court explained that, because the law did not require local

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governments to comply with their own when approving development, the Legislature "recognized that the 1975 Act was proving ineffectual in regulating Florida's development." Id. Relative to the cause of action now thwarted by the attorney fees provision, the Court noted:

"...the 1975 Act was criticized for failing to give affected property owners and citizen groups standing to challenge the land development decisions of local governments on the grounds that they were inconsistent with the Comprehensive Plan." Id. The "limitation on standing to enforce local planning laws resulted in "a failure to conform development decisions to the plan based upon the fact that citizens lacked standing to challenge development orders for lack of consistency with the comprehensive plan." Id. As starkly put by the Court":

"If affected property owners in the area of newly permitted development could not challenge a project on the grounds thatit would be inconsistent with the Comprehensive Plan, that eliminated the only real check on local government compliance." Id. at 199- 200. The remedy, wrote the court, was the comprehensive plan consistency cause of action which "liberalized standing requirements and demonstrated 'a clear legislative policy in favor of the enforcement of comprehensive plans by persons adversely affected by local action." Id. at

200. (citation omitted).Now, however, as a result of the law challenged here, the Act irreconcilably and irrationally maintains this all important enforcement mechanism but punishes those who exercise it but do not prevail. Id. at 200.

"[Tihe ... clear legislative intent to mandate intelligent, uniform growth management cannot be achieved without meaningful review in lawsuits brought under the Act."

Southwest Ranches Homeowners Assoc., Inc. v. County of Broward, 502 So.2d 931, 936 (Fla. 4th

DCA 1987) (emphasis added).The Act challenged as unconstitutional in this case will preclude that meaningful review in lawsuits brought under the Act, thus completely thwarting its intent and

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Plaintiffs respectfully submit that Defendants' motions to dismiss should be DENIED.

Respectfully submitted this 1St day of June, 2020

Jane West, Esquire Policy and Planning Director 1000 Friends of Florida Fla. Bar No. 159417 24 Cathedral Place, Suite 504 St. Augustine, FL 32084 Office: (904) 471-0505 sti000fof.or Counsel for 1000 Friends of Florida

/s/ TKA Terrell K. Arline, Esquire Terrell K. Arline Attorney at Law Fla. Bar. No. 306584 1819 Tamiami Drive Tallahassee, FL 32301 (850) 321-8726 agmail. corn Co -Counsel for 1000 Friends of Florida

/s/ RG Richard Grosso, Esq. Richard Grosso, P.A. Fla. Bar No. 0592978 6919 W. Broward Boulevard Plantation, FL 33317 gsQiçoo.cojjMail box 142 954-801-5662

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Co -Counsel for 1000 Friends of Florida

/s/ JWL Joseph W. Little, Esq. Fla. Bar No. 196749 3731 NW 13th Place Gainesville, FL 32605 352-372-5955 lenv)inl.cori Co -Counsel for 1000 Friends of Florida

Certificate of Service I hereby certify that a copy olthe above and foregoing has been furnished to all Counsel via the Court's E -Portal system on this 1st day of June, 2020.

149

10001000 FRIENDSFRIENDS OF FLORIDA INC vs. LAUREL M LEELEE LT. CASE NO: 2019 CACA 002215002215 HT. CASE NO: 1D20-21351D20-2135 20200034164 ELECTRONICALLY RECORDED IN THE PUBLIC RECORDS OF LEON COUNTY, FL BK: 5456 PG: 656 06/19/2020 at 03:00 PM GWEN MARSHALL, CLERK OF COURTS

Filing # 109069583 E -Filed 06/18/2020 02:46:07 PM

IN TILE CIRCIJIT COURT OF TIlE SECOND JUDICiAL CIRCUiT IN AND FOR LEON COUNTY, FLORIDA

1000 FRIENDS OF FLORIDA, INC., a Florida not for Profit Coiporation;

Plaintiff,

V. Case No.: 2019-CA..002215

THE STATE OF FLORIDA, LAUREL M. LEE, in her Official Capacity as Secretary of Stateof Florida, and KEN LAWSON, in his Official Capacity as the Executive Director of the Florida Department of Economic Opportunity,

Defendants.

HNAL ORDER GRANTING DEFENDANT KEN LAWSON'S MOTION TO DISMISS PLAINTIFFS' AMENDED COMPLAINT WITB PItEJUDICE

This matter caine before the Court on June 3, 2020 for a hearing on Defendant, Ken

Lawson, in his official capacity as the Executive Director of the Florida Department of Economic

Opportunity's, Motion to Dismiss Plaintiffs' Amended Complaint With Prejudice. I1aving

reviewed the Motion and the Responses filed by Plaintiffs, the legal authorities cited by the parties,

and having considered the arguments of counsel, and being otherwise fully advised, the Court finds

as follows:

I, This case was brought by the Plaintiffs against Ken Lawson in his official capacity

as Executive Director and is therefore a case against the Department of Economic Opportunity

2. Section163.3215, Florida Statues provides that an aggrieved or adversely affected

party (meaning a person or local government) may file an action to appeal and challenge the

consistency of a development order with a comprehensive plan. DEO is not a party or otherwise

E-Fi led andEServed bySBon JUN18ZIIZU

150

10001000 FRIENDSFRIENDS OF FLORIDA INC vs. LAUREL M LEELEE LT. CASE NO: 2019 CACA 002215002215 HT. CASE NO: 1D20-21351D20-2135

OR BK: 5456 PG: 657

involved in. any development order challenges brought pursuant to this section. DEO does not

awardprevailing party attorneys' fees and would not seekprevaiing party attorneys' fees pursuant

to this statute against a party. DEO does not have any enforcement functions related to section

163 3215 Florida StatutesSee Scott v Francat, 214 So 3d 742 (Fla Pt DCA) In Fiancat, the

First District Court of Appeal held that whethei a state official is a property party in an action

challenging the constitutionality of a statute is governed by three factorsId The three lactors

include (1) whether the government official is charged with enforcing the statute, (2) whether the

action involves a broad constitutional duty of the state implicating specific responsibilities of the

state official and (3) whether the State official has an actual, cognizable mterest in the challenged

action. Id. DEO does not meet any of the three factors prescribed byFrancati and is therefore not

a proper defendant in this case.

3. In addition, no justiciable case or controversy exists between the Plaintiffs and

DEO.See State ofFlorida v. Florida Consumer Action Network, 830 So2d 148 (Fla.P1DCA

2002) (finding that there must be an actual, present,adverse and antagonistic interest in thesubject

matter between the parties);see also Apthorp v. Detzner, 162 So.3d 236 (Fla. P5DCA 2015).

4. The Plaintiffs also lack standing. SeeHayes v, Gzwrdianshtp of Thompson, 952

So.Zd 505 (Fla. 2006).

5 The parties agreed at the hearing that Count I of the Amended Complaint, which

attacked the law as violating the single subjectprovision of the Florida Constitution is now moot

due to the reenactment of the Florida Statutes during the 2020 legislative session. The Court finds

that Count I ofthe Amended Complaint is moot.

151

10001000 FRIENDSFRIENDS OF FLORIDA INC vs. LAUREL M LEELEE LT. CASE NO: 2019 CACA 002215002215 HT. CASE NO: 1D20-21351D20-2135

OR BK: 5456 PG: 658

& The Court does not address or reach the issues in sections III and IV of DEO's

Motion to Dismiss, which raised arguments related to the Plaintiffs' failure to state causes of action

and failure to plead ultimate facts in the Atnendd Complaint.

7 Because the Plaintiffs will be unable to cure the deficiencies contained in the

Amended Complaint, leave to amend would be futile.

ror the foregoing reasons, Defendant, Ken Lawson, m his of&ial capacity as the Executive

Director of the Florida Department of Economic Opportunity's Motion to Dismiss is GRANTED

with PREJUDICE and this case is closedThis Order constitutes a final judgment

DONE AND ORDERED inTallabassee Leon County Florida, this fjday of June,

2020. -

Copies furnished to: All Counsel of Record

152

10001000 FRIENDSFRIENDS OF FLORIDA INC vs. LAUREL M LEELEE LT. CASE NO: 2019 CACA 002215002215 HT. CASE NO: 1D20-21351D20-2135 20200034165 ELECTRONICALLY RECORDED IN THE PUBLIC RECORDS OF LEON COUNTY, FL BK: 5456 PG: 659 06/19/2020 at 03:00 PM GWEN MARSHALL, CLERK OF COURTS

Filing # 109069583 E -Filed 06/18/2020 02:46:07 PM

IN THE CIRCUIT COURT OF TIlESECOND JUDICL&L CIRCUIT IN ANI) FORLEON COUNTY, FLORIDA 1000 FRIENDS OFFLORIDA,rNc.,a Florida Not for Profit Coiporation, Planttff

V. Case No.: 2019 -CA -002215 THE STATE OFFLORIDA,LATJRELM. LEE,in her official capacity as Secretary of State of Florida, and KEN LAWSON, in his official capacity as the Executive Director of the Florida Department of Economic Opportunity, Defendants.

FINAL ORDER OF DISMISSAL AS TO SECRETARYOF STATE LAUREL M. LEE

THIS CAUSE came before the Court for hearingon June 3, 2020, on Defendant, Secretary

of State Laurel M. Lee's ("the Secretary"), Motionto Dismiss Amended Complaint with Prjudice

filed February 28, 2020. Having considered the MotionPlaintiff's Memorandum in Opposition to

Defendants' Motions to Dismiss flIed May 26, 2020, Plaintiff'sSupplemental Memorandum in

Opposition filed June 1, 2020, the Secretary's Request forJudicial Notice filed June 2, 2020, the

Court file, and applicable law, along with argument of counsei,the Court GRANTS the Secretary's

Motion to Dismiss with prejudice. Under the facts and circumstances,amendment to state a cause of action against the Secretary would be futile.

The Court FINDS and ORDERS as follows:

Plaintiff's Amended Complaint seeks declaratoryandinjunctive relief against the Secretary

and Department of Economic Opportunity ("DEO"), asserting that Section7, subsection(8)(c),of

Chapter 2019-165, Laws of Florida ("the Law"), that provides for prevailingparty attorney fees and

costs in certain land development litigation, is unconstitutionaL This provision isnow encoded in

section 163.32 15(8)(e), Florida Statutes (2020). The relief sought against theSecretary is to expunge

E-Ffled and E-Seived by8on dUIflUZOZO

153

10001000 FRIENDSFRIENDS OF FLORIDA INC vs. LAUREL M LEELEE LT. CASE NO: 2019 CACA 002215002215 HT. CASE NO: 1D20-21351D20-2135

OR BK: 5456 PG: 660

the aforementioned section from the Laws of Florida and prohibit its codification intostatutes. Fur the reasons stated in the Secretaty's Motion to Dismiss and those specificallydiscussed below, dismissal of the Secretaty from this actionis warranted,

First, because the Law has now been codified in Florida Statutes, Plaintiff haswithdrawn its single subjection violation argument pled in Count 1, acknowledging thatthe claim is now moot. Second, the Secretary does not have any enforcement role as it relates to the challengedstatute, and accordingly, isot a proper party. See Atwater Cñy of Weston, 64 So. 3d 701,704 (Fla. 1st DCA 201 1). Atwater, a case where plaintiffs challenged a growth management act, heldthat "the proper defendant in a lawsuit chailenging a statute's constitutionality is the state officialdesignated to enforce the statute." Id. at 703. Because the Secretary in Atwater did not enforceFlorida's growth

management laws, he was not a proper party to that lawsuit.IcL at 704. The same is true here where the Secretary has no enforcement role related to land development litigationnor attorney fees sought

therein. The Secretary merely being the custodianof state records is insufficient.

As noted above, because Plaintiff would not beable to amend to state a cause of action against

the Secretary, dismissal with prejudice iswarranted.

WIBIIREFORE it is ORDERED and ADJUDGED that:

I. Secretary Lee's Motion to Dismiss AmendedComplaint with Prejudiceis GRANTED.

2. Plaintiff's Amended Complaint is DISMISSED withprejudiceas to Secretary of State Laurel M. Lee and final judgment is entered in her favor. _cfr DONE and ORDERED in TaUahassee, Leon County,Florida on this/ % day of June, 2020.

OFE CIRCUIT JUDGE

154

10001000 FRIENDSFRIENDS OF FLORIDA INC vs. LAUREL M LEELEE LT. CASE NO: 2019 CACA 002215002215 HT. CASE NO: 1D20-21351D20-2135

Filing# 109125722 E -Filed 06/19/2020 01:38:08 PM

iN TIlE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT IN AN]) FOR LEON COUNTY, FLORIDA

1000 FRIENDS OF FLORIDA, INC., a Flonda Not for Profit Corporation Plaisztfff

V. Case No.: 201 9 -CA -0022 15

THE STATE OF FLORIDA, LAUREL M. LEE, in her official capacity as Secretary of State of Florida, and KEN LAWSON, in his official capacity as the Executive Director of the Flonda Department of Economic Opportumty Defendants.

FIESAL ORDER OF DISMISSAL AS TO SECRETARY OF STATE LAUREL M LEE

TIllS CAUSE caine before the Court for hearing on June 3, 2020, on Defendant, Secretary

of State Laurel M. Lee's ("the Secretary"), Motion to Dismiss Amended Complaint with Prejudice

filed Februaiy 28, 2020 Having consideted the Motion, Plaintiffs Memorandum in Opposition to

Defendants' Motions to Dismiss filed May 26, 2020, Plaintiff's Supplemental Memorandumin

Opposition filed June 1, 2020, the Secretary's Request for Judicial Notice filed June 2, 2020, the

Court file, and applicable law along with argument of counsel, the Court GRANTS the Secretary's

Motion to Dismiss with prejudice Underthe facts and circumstances amendment to state a cause of

action against the Secretary would be futile

The Court FINDS and ORDERS as follows:

Plaintiff's Amended Complaint seeks declaratory and injunctive relief against the Secretary

and Department of Economic Opportunity ("DEO"), asserting that Section 7, subsection (8)(c), of

Chapter 2019-165, Laws of Flonda ("the Law"), that provides for prevailing party attorney fees and

costs in certain land development litigation, is unconstitutional Tins provision is now encoded in

section 163 3215(8)(c), Flonda Statutes (2020) The relief sought against the Secretary is to expunge

E-Filecj and E -Served E-Fijed and E -Served by 85 on JUN lZDzU by 36 on

155

10001000 FRIENDSFRIENDS OF FLORIDA INC vs. LAUREL M LEELEE LT. CASE NO: 2019 CACA 002215002215 HT. CASE NO: 1D20-21351D20-2135

the aforementioned section from the Laws of Florida and prohibit its codification into statutes. For the reasons stated in the Secretary's Motion to Dismiss and those specifically discussed below, dismissal of the Secretary from this action is warranted.

First, because the Law has now been codified in Florida Statutes, Plaintiff has withdrawn its single subjection violation argument pled in Count I, acknowledging that the claim isnow moot.

Second, the Secretary does not have any enforcement role as it relates to the challenged statute, and accordingly, is not a proper party. See Atwater v. CityofWeston, 64 So. 3d 701, 704 (Ha. 1st DCA

2011). Atwater, a case where plaintiffs challenged a growth luanagenient act, held that "the proper defendant in a lawsuit challenging a statute's constitutionality is the state official designated to enforce the statute." Id. at 703. Because the Secretary in Atwaterdid not enforce Florida's growth management laws, he was not a proper party to that lawsuit. Id. at 704. The same is true here where the Secretary has no enforcement role related to land development litigation nor attorney fees sought therein. The Secretary merely being the custodian of state records is insufficient.

As noted above, because Plaintiff would not be able to amend to state a cause of action against the Secretary, dismissal with prejudice is warranted.

WJ3ERJU?ORE it is ORDERED and ADJUDGED that:

1. SecretaryLee's Motion toDismissAmended Complaint with Prejudiceis

GRANTED.

2. Plaintiffs Amended Complaint is DISMISSED witbprejudice as to Secretary of State

Laurel M. Lee and final judgment is entered in her favor. ,ifr DONE and ORDERED in Tallahassee, Leon County,Florida on this/0'day of June,

2020.

fffHN C. COOFER CLRCUIIf JUDGE

156

10001000 FRIENDSFRIENDS OF FLORIDA INC vs. LAUREL M LEELEE LT. CASE NO: 2019 CACA 002215002215 HT. CASE NO: 1D20-21351D20-2135

Filing# 109125722 E -Filed 06/19/2020 01:38:08 PM

IN THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT iN AND FOR LEON COUNTY, FLORIDA

1000 FRIENDS OF FLORIDA, INC, a Florida not for Profit Coiporation:

Plaintiff,

V. Case No.: 2019 -CA -0022 15

THE STATE OF FLORIDA, LAUREL M. LEE, iii her Official Capacity as Secretaiy of State of Flonda, and KEN LAWSON, in his Official Capacity as the Executive Director of the Florida Department of Economic Opporbimty,

Defendants.

This matter came before the Court on June 3, 2020 for a hearing on Defendant, Ken

Lawson, in his official capacity as the Executive Director of the Florida Department of Economic

Opportunity's, Motion to Dismiss Plaintiffs' Amended Complaint With Prejudice. Having

reviewed the Motion and the Responses filed by Plaintiffs, the legal authorities cited by the parties,

and having considered the arguments of counsel, and being otherwise fully advised, the Court finds

as follows:

This case was brought by the Plaintiffs against Ken Lawson in his official capacity

as Executive Director and is therefore a case against the Department ofEconomic Opportunity

("DEO").

2. Section 163.3215, Florida Statues provides that an aggrieved or adversely affected

party (meaning a person or local government) may file an aetion to appeal and challengethe

consistency of a development order with a comprehensive plan. DEO is not a party or otherwise

1 E-Fifed and E -Served E-Fjled and E -Served bySBon JUN 18ZZO by SB on }UH 19 ZOZU

157

10001000 FRIENDSFRIENDS OF FLORIDA INC vs. LAUREL M LEELEE LT. CASE NO: 2019 CACA 002215002215 HT. CASE NO: 1D20-21351D20-2135

involved in any development order challenges brought pursuant to this section. DEO does not award pievatling party attorneys fees and would not seek prevailmg party attorneys fees pursuant to thisstatute against a party DEO does not have any enforcement fmictions related to section

163 3215 Flonda Statutes SeeScottv Francati 214 So 3d 742 (Fla PtDCA) In Fiancati, the

First District Court of Appeal held that whether a state official is a property party in an action challenging the constitutionality of a statute is governed by three factorsIdThe three factois include (1) whether the government official is charged with enforcing the statute (2) whether the action involves a broad constitutional duty of the state implicating specific responsibilities of the state official, and (3) whether the state official has an actual, cognizable interest in the challenged action. Id. [)EO does not meet any of the three factors prescribed by Francati and is therefore not a proper defendant in this case.

3. In addition, no justiciable case or controversy exists between the Plaintiffs arid

DEO. See State of Florida v. Florida Consumer Action Network, 830 So2d 148 (Fla. 1' DCA

2002) (finding that there must be an actual, present, adverse and antagonistic interestin the subject matter betweenthe parties); see alsoApthoip v. Detzner, 162 So.3d 236(Fla. l DCA 2015).

4. The Plaintiffs also lack standing. See Haye.r p.Guardianship of Thompson, 952

So.2d 505 (FIn. 2006).

5. The parties agreed at the hearing that Count I of the Amended Complaint, which attacked the law as violating the single subject provision of the Florida Constitution is now moot due tothereenactment of the Florida Statutes during the 2020legislativesession. The Court finds that Count I of the Amended Complaint is moot.

158

10001000 FRIENDSFRIENDS OF FLORIDA INC vs. LAUREL M LEELEE LT. CASE NO: 2019 CACA 002215002215 HT. CASE NO: 1D20-21351D20-2135

. The Court does not address or reach the issues in sections III and IV of DEO's

Motion to Dismiss, which raised arguments related to thePlaintiffs' failure to state causes ofaction snd failure to plead ultimate fnets in the Amended Complaint.

7. Because the Plaintiffs will be unable to cure the deficiencies contained in the

Amended Complaint, leave to amend would be futile.

For the foregoing reasons, Defendant, Ken Lawson, in his official capacity as the Executive

Director of the Florida Department of Economic Opportunity's Motion to Dismiss is GRANThI) with PREJuDICE and this caseis closed. This Order constitutes afinal judgment. DONE AND ORDERED in Tallahassee, Leon County, Florida, thisdday of June, 2020.

FIONORABLEO.E /CJRCUIT JUDGE

Copies furnished to: All Counsel of Record

159

10001000 FRIENDSFRIENDS OF FLORIDA INC vs. LAUREL M LEELEE LT. CASE NO: 2019 CACA 002215002215 HT. CASE NO: 1D20-21351D20-2135 20200040499 ELECTRONICALLY RECORDED IN THE PUBLIC RECORDS OF LEON COUNTY, FL BK: 5467 PG: 541 07/21/2020 at 02:29 PM GWEN MARSHALL, CLERK OF COURTS

Filing #110429588 E-Filed07/17/2020 04:27:33 PM

iN THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT IN AND FOR LEON COUNTY, FLORIDA

1000 FRIENDS OF FLORIDA, INC., a Florida not for Profit Corporation; and ROBERT J. HOWELL,

Plaintiffs,

V. CASE NO.: 2019 CA 002215

THE STATE OF FLORIDA, LAUREL M. LEE, in her Official Capacity as Secretary of State of Florida, and KEN LAWSON, in his Official Capacity as the ExecutiveDirectoroftheFlorida Department of Economic Opportunity;

Defendants.

NOTICE OF APPEAL

NOTICE IS GIVEN that the Plaintiffs/Appellants, 1000 FRIENDS OF FLORIDA, INC.

("1000 Friends") and ROBERT J. HOWELL, by and through undersigned counsel, appeal to the First District Court of Appeal of the State of Florida, the Final Order in favor of KEN LAWSON, in his Official Capacity as the Executive Director of the Florida Department of

Economic Opportunity (CA19-2215) rendered on June 18, 2020. A copy of the final order being

attached hereto in accordance with Fla. R. App. P. 9.110(d).

Jane West, Esquire Policy and Planning Director 1000 Friends of Florida Fla.BarNo. 159417 24 Cathedral Place, Suite 504 St. Augustine, FL 32084

160

10001000 FRIENDSFRIENDS OF FLORIDA INC vs. LAUREL M LEELEE LT. CASE NO: 2019 CACA 002215002215 HT. CASE NO: 1D20-21351D20-2135

OR BK: 5467 PG: 542

Office: (904) 471-0505 t(i1O0Off,io Counselfor Plaintiffs/Appellants

/s/ TKA Terrell K. Arline, Esquire Terrell K. Arline Attorney at Law Fla. Bar. No. 306584 1819 Tamiami Drive Tallahassee, FL 32301 (850) 321-8726 1inela'atnati.com terrel 1(ä) tr1ineEaw corn Co -Counsel for PlaintjfJs/Appellants

/s/ RG Richard Grosso, Esq. Richard Grosso, P.A. Fla. Bar No. 0592978 6919 W. Broward Boulevard Plantation, FL 33317 Mail box 142 corn 954-801-5662 Co -Counsel for 1000 Friends of Florida

/s/ JWL Joseph W. Little, Esq. Fla. Bar No. 196749 3731 NW 13th Place Gainesville, FL 32605 352-372-5955 littlegnv(ägrnail.com Co-Counselfor Plaintiffs/Appellants

CERTIFICATE OF SERVICE

I hereby certify that a copy of the above and foregoing has been furnished to all Counsel via the Court's E -Portal system on this 17th day of July, 2020.

161

10001000 FRIENDSFRIENDS OF FLORIDA INC vs. LAUREL M LEELEE LT. CASE NO: 2019 CACA 002215002215 HT. CASE NO: 1D20-21351D20-2135

OR BK: 5467 PG: 543

Jane West, Esquire Policy and Planning Director 1000 Friends of Florida Fla.BarNo. 159417 24 Cathedral Place, Suite 504 St. Augustine, FL 32084 Office: (904) 471-0505 jwest(ci), I 000fOf org Counselfor Plaintjffs/Appellants

162

10001000 FRIENDSFRIENDS OF FLORIDA INC vs. LAUREL M LEELEE LT. CASE NO:NO: 2019 2019 CA CA (X)2215 002215 HT. CASE NO: 1D20ID20-2-2135 135

OR BK: 5467 PG: 544

Filing# 109125722 E -Filed 06/19/2020 01:38:08 PM

IN THE CIRCUIT COURT OF TIlE SECOND JUDICIAL C1RCIJIT IN ANDFOR LEON COUNTY, FLORIDA

1000 FRIENDS OF FLORIDA, INC., a Florida not for Profit Coi:poration

Plainzift,

V. Case No.: 2019 -CA -002215

THE STATE OF FLORIDA. LAUREL M. LEE, in her Official Capacity as Secretary of State of F]orda, and KEN LAWSON, in his Official Capacity as the Executive Director of the Florida Department of Economic Opportunity,

Defendants.

FINAL ORDER GRANTING DEFENDANT KEN LAWSON'S MOTION TO DISMISS PLAINTIFFS' AMENDED COMPLAINT WiTH PREJUDICE

This matter came before the Court on June 3, 2020 for ahearing on Defendant, Ken

Lawson, in his official capacity as the Executive Director of the Florida Department of Economic

Opportunity's, Motion to Dismiss Plaintiffs' Amended Complaint With Prejudine.Having

reviewed the Motion and theResponses tiled by Plaintiffs, the legal authorities cited by the parties,

and having considered the arguments of counsel, and being otherwise fully advised, the Court finds

as follows:

I. This case was brought by the Plaintiffs against Ken Lawson in his official capacity

as Executive Director and is therefore a case against the Department ofEconomic Opportunity

("DEO")

2. Section 163.3215, Florida Statues provides tlrntan aggrieved oradvereelyaffected

party(meaning a person or local government) mey file an action to appeal and challenge the

consistency of a development order with a comprehensive plan. DEO is not a party or otherwise

E -Filed and E -Served E-FHed and E -Served bySBon J1JN1820211 bySBon J014192020

163163

10001000 FRIENDSFRIENDS OFOF FLORIDAFLORIDA INCINC vs.vs. LAURELLAUREL MM LEELEE LT.CASENO:LT. CASE NO: 20192019 CA002215CA 002215 HT.CASENO:HT. CASE NO: 1D20-2135 1D20-2135

OR BK: 5467 PG:545

involved in any development order challenges brought pursuant to this section. DEO doea not

award prevailing party attorneys' fees and would not seek prevailing patl.y attorneys' fees pursuant

to this statute against a party.DEO does not have any enforcement functions related to section

163.3215, Florida Statutes.See Scott v.Frw,cati, 214 So.3d 742 (Flu. DCA). InFrancati,the

First District Court of Appeal held that whether a state official is a property party in an action

challenging the constitutionality of a statute is governed by three factors. Id. The three factois

include (1) whether the government official is charged with enforcing the statute, (2) whether the

action involves a broad constitutional duty of the state implicating specific responsibilities of the

state official, and (3) whether the state official has an actual, eogriizable interest in the challenged

action. Id. DEO does not meet any of the three factors prescribed by Francati and is therefore not

a proper defendant in this case.

3. In addition, no justiciable case or controversy exists between the PJaintiffs and

DEO.See State of Florida v. Florida Consumer Action Network, 830So.2d 148 (Fla. 1' DCA

2002) (finding that there must be an actual, present, adverse and antagonistic interest in the subject

matterbetweenthe parties); see also Apthoip v.Detzner, 162So.3d 236 (Fla.iSDCA 2015).

4. The Plaintiffs also lack standing.See Hayes v. Guardianship of Thompson, 952

So.2d 505 (Fla. 2006).

5. The parties agreed at thc hearing that Count I of the Amended Complaint, which

attacked the law as violating the single subject provision of the Florida Constitution is now moot

due to the reenactment of the ltorida Statutes during the 2020 legislative session. The Court finds

that Count I of the Amended Complaint is moot.

164164

100010(X) FRIENDS FRIENDS OF OF FLORIDA FLORIDA INC ll'C vs. LAUREL M LEE LT. CASE NO: 2019 CACA 002215002215 HT. CASE NO: 1D20-21D20-2135 135

OR BK: 5467 PG: 546

6. The Court does not address or reach the issues in. sections III and IV of DEO's

Motion to Dismiss, which raised arguments related to the Plaintiffs' failure to state causes of action

and failure to plead. ultimate facts in the Amended Complaint.

7. Because the Plaintiffs will be unable to cure the deficiencies contained in the

Amended Complaint, leave to amend would be futile.

For the foregoing reasons, Defendant,KenLawson,in his official capacity as theExecutive

Director of the Florida Department of Economic Opportunity's Motion to Dismiss is GRANTHI) witlt PREJUDICE and this case is closed. This Order constitutes a final judgment.l'It DONE AND ORDERED in Tallahassee, Leon County, Florida, this j day of June, 2020.

Copies furnished to: All Counsel of Record

165165

10001000 FRIENDSFRIENDS OF FLORIDA INC vs. LAUREL M LEELEE LT. CASE NO: 2019 CACA 002215002215 HT. CASE NO: 1D20-21351D20-2135 20200042185 ELECTRONICALLY RECORDED IN THE PUBLIC RECORDS OF LEON COUNTY, FL BK: 5469 PG: 2353 07/28/2020 at 01:17 PM GWEN MARSHALL, CLERK OF COURTS

Filing #110755768 E-Filed07/24/2020 12:49:45 PM

iN THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT IN AND FOR LEON COUNTY, FLORIDA

1000 FRIENDS OF FLORIDA, INC., a Florida not for Profit Corporation; and ROBERT J. HOWELL,

Appellants/ Plaintiffs,

V. Case No. 2019 CA 002215

THE STATE OF FLORIDA, LAUREL M. LEE, in her Official Capacity as Secretary of State of Florida, and KEN LAWSON, in his Official Capacity as the Executive Director of the Florida Department of Economic Opportunity;

Appellees, Defendants.

AMENDED NOTICE OF APPEAL

This AMENDED NOTICE OF APPEAL is given that the Plaintiffs/Appellants, 1000

FRIENDS OF FLORIDA, INC. ("1000 Friends") and ROBERT J. HOWELL, by and through

undersigned counsel, appeal to the First District Court of Appeal of the State of Florida, the Final

Judgment in favor of KEN LAWSON, in his Official Capacity as the Executive Director of the

Florida Department of Economic Opportunity (CA19-2215) issued by Honorable Judge John C.

Cooper, Circuit Judge, rendered on 06/19/2020. A copy of the final order being attached hereto

in accordance with Fla. R. App. P. 9.110(d).

166

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OR BK: 5469 PG: 2354

Respectthhly submitted this 24th day of July 2020.

; ,-, /s/ RG Terrell K. Arline, Esquire Richard Grosso, Esq. Terrell K. Arline Attorney at Law Richard Grosso, P.A. Fla. Bar. No. 306584 Fla. Bar No, 0592978 1819 Tamiami Drive 6919 W. Broward Boulevard Plantation, FL 33317 Tallahassee, FL 32301 (850) 321-8726 Mailbox 142 tkarlineIaw(ZtgrnaiLcom grosso . ri cli ard(dyahoo. corn Co -Counsel for Plaintiffs/Appellants 954-801-5662 Co -Counsel for /000 Friends /s/JW of Florida, Plaintjj7Appellant Jane West, Esquire Policy and Planning Director 1000 Friends of Florida /s/ JWL Fla. Bar No. 159417 Joseph W. Little, Esq. 24 Cathedral Place, Suite 504 Fla. Bar No. 196749 St. Augustine, FL 32084 3731 NW 13th Place Office: (904) 471-0505 Gainesville, FL 32605 t0OOibf,or 352-372-5955 1ittlegnv(i)gmai1.com Counselfor Plaintiffs/Appellants Co -Counsel for Plaints/Appellants

167

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OR BK: 5469 PG: 2355

CERTIFICATE OF FILING AND SERVICE

I HEREBY CERTIFY that a copy of the foregoing was served on all counsel of record through the State of Florida E -Filing Portal System and by electronic mail on this 24th day of July 2020 to the following persons.

Terrell K. Arline, Esquire Terrell K. Arline Attorney at Law Fla. Bar. No. 306584 1819 Tamiami Drive Tallahassee, FL 32301 (850) 321-8726 tkarlinelaw(dgniaiI.com

Copies furnished:

Mark Buckles, Interim General Counsel Rebekah Davis, Assistant General Counsel Bradley R. McVay, General Counsel Jon Morris, Assistant General Counsel [email protected] Office of the General Counsel Ashley E. Davis, Deputy General Counsel Department of Economic Opportunity [email protected] 107 E. Madison Street, MSC 110 Florida Department of State Tallahassee, FL 32399 R,A, Gray Building, Suite 100 Email: [email protected] 500 South Bronough Street [email protected] Tallahassee, Florida 32399-0250 [email protected] Counsel for Secretary of State [email protected] (Not currently a party on appeal.) [email protected] [email protected] For Appellee, Florida Department of Economic Opportunity

168It.r

10001000 FRIENDSFRIENDS OF FLORIDA INC vs. LAUREL M LEELEE LT. CASE NO: 2019 CACA 002215002215 HT. CASE NO: 1D20-21351D20-2135

OR BK: 5469 PG: 2356

Filing# 109125722 E -Filed 06/19/2020 01:38:08 PM

IN THE CIRCUIT COURT OF TUE SECOND JUDICIAL CIRCUIT iN AND1OR LEON COUNTY FLORIDA

1000 FRIENDS OF FLORIDA, INC., a Fimida not for Profit Coiporation:

Plaintiff,

V. Case No.: 2019 -CA -0022 15

THE STATE OF FLORIDA. LAUREL M. LEE, in her Official Capacity as Secretaiy of State of Florida, and KEN LAWSON, in his Official Capacity as the Executive Director of the Florida Department of Economic Opportunity,

Defendants.

FINAL ORDER GRANTING DEFENDANT KEN LAWSON'S MOTION TO DISMISS PLAINTIFFS' AMENDED COMPLAINT WITH PREJUDICE

This matter came before the Court on June 3, 2020 for a hearing on Defendant, Ken

Lawson, inhisofficial capacity as the Executive Director of the Florida Department of Economic

Opportunity's, Motion to Dismiss Plaintiff& Amended Complaint With Prejudice Having

reviewed the Motion and the Responses filed by Plaintiffs, the legal authorities cited by the parties,

and having considered the arguments of counsel, and being otherwise fully advised, the Court finds

as follows:

This case was brought by the Plaintiffs against Ken Lawson in his official capacity

as Executive Director and is therefore a case against the Department ofEconomic Opportunity

("DE0").

2. Section 163.3215, Florida Statues provides that an aggrieved or adversely affected

party(meaning a person or local government) may file an action to appeal and challengethe

consistency of a development order with a comprehensive plan. DEO is not a party or otherwise

1 E-Ffled and E-Servad E-Fjlod and E-Servecl bySBon JUN 1820Z0 by SB on JU11 9 2020

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OR BK: 5469 PG: 2357

involved in any development order challenges brought pursuant to this section. DRO does not

awdrdplevathng party attorneys fees and would not seek prevailmg party attorneys fees pursuant

to this statute against a party. DEO does not have any enforcement functions related to section

163 3215 Florida Statutes See Scott v Francati, 214 So 3d 742 (Flul DCA)In F;ancatz, the

First District Court of Appeal held that whether a state official is a property party in an action

challenging the constitutionality of a statute is governed by three factorsIdThe three factors

include (I) whether the government official is charged with enforcing the statute (2) whether the

action involves a broad constitutional duty of the state implicating specific responsibilities of the

state official, and (3) whether the state official has an actual, cogmzeble interest in the challenged

action Id LIEU does not meet any of the three factors prescribed by F; ancati and is therefote not

a proper defendant in this case.

3. In addition, no justiciable case or controversy exists between the Plaintiffs arid

DEO. See StateofFlorida v, Florida Consumer Action Network, 830 So,2d 148 FIa. 1' DA

2002) (finding that there must be an actual, present, adverse and antagonistic interest in the subject

matter between the parties); see also Apthoip v. Delzner, 162 So.3d 236 (Pla. l DCA 2015).

4. The Plaintiffs also lack standing.See Hayer iGuardianshipofThompson, 952

So.2d 505 (Fla. 2006).

5. The parties agreed at the hearing that Count 1 of the Amended Complaint, which

attacked the law as violating the single subject provision of the Florida Constitution is now moot

due to the reenactment of the Florida Statutes during the 2020 legislative session, The Court finds

that Count I of the Amended Complaint is moot.

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OR BK: 5469 PG: 2358

. The Court does not address or reach the issues in sections III and IV of DEO's

Motion to Dismiss, which raised arguments related to thePlaintiffs' failure to state causes ofaction

nud failure to plead ultimate fncts in the Amended Complaint.

7 Because the Plaintrffs will be unable to cure the deficiencies contained m the

Amended Complaint, leave to amendwould be futile.

For the foregomg reasons, Defendant, KeaLawson m his official capacity as theExecutive

Director of the Florida Department of Economic Opportunity's Motion to Dismiss is GRANTO

with PREJUDICE and this case is closed This Orderconstitutes a final judgment

DONE ANt) ORDERED in Tallahassee, Leon County, Florida, this j day of June, 2020.

Copies furnished to: All Counsel of Record

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Filing# 111415519 E -Filed 08/06/2020 04:33:41 PM

IN THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT IN AND FOR LEON COUNTY, FLORIDA

1000 FRIENDS OF FLORIDA, iNC., a Florida not for Profit Corporation;

Plaintiff,

V. Case No.: 2019 -CA -002215

THE STATE OF FLORIDA, LAUREL M. LEE, in her Official Capacity as Secretary of State of Florida, and KEN LAWSON, in his Official Capacity as the Executive Director of the Florida Department of Economic Opportunity,

Defendants.

DESIGNATION TO COURT REPORTER

I. DESIGNATION

Defendant/Appellee, Ken Lawson, in his Official Capacity as the Executive Director of the

Florida Department of Economic Opportunity files this Designation to Approved Court Reporter,

Civil Court Reporter, or Approved Transcriptionist and directs For the Record Court Reporting,

Inc. to transcribe the following portions of the trial proceedings to be used in this appeal:

1 The entire hearing/proceeding recorded by the reporter on June 3, 2020 before the

Honorable Judge Cooper.

2.The approved court reporter, civil court reporter, or approved transcriptionist is directed to

file the original with the clerk of the lower tribunal and to serve one copy on each of the

following:

A. Counsel for the Florida Department of Economic Opportunity (electronic copy)

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I, counsel for Appellee, certify that I have made satisfactory financial arrangements with the approved court reporter, civil court reporter, or approved transcriptionist for preparation of the transcript, and I have served a designation on the approved court reporter, civil court reporter, or approved transcriptionist.

Dated this 6th day of August, 2020.

/s/ R ebekah Davis Rebekah A. Davis, Esq. Florida Bar No. 42339 Florida Department of Economic Opportunity 107 E. Madison Street Caidwell Building, MSC -110 Tallahassee, FL 32399 Tel. (850) 245-7150 Fax. (850) 921-3230 Rebekah.Davis(deo.myflorida.com DEOeservice(deo.myflorida.com Attorney for The Florida Department of Economic Opportunity

Certificate of Service

I hereby certify that a copy of the above and forgoing has been furnished to all Counsel via the Court's E -Portal System on this day of August, 2020.

/s/Rebekah Davis Rebekah A. Davis, Esq.

Service List:

Jane West, Esquire Policy and Planning Director 1000 Friends of Florida 24 Cathedral Place, Suite 504 St. Augustine, FL 32084 Office: (904) 471-0505 o:f.or Counsel for 1000 Friends of Florida

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Terrell K. Arline, Esquire Terrell K. Arline, Attorney at Law 1819 Tamiami Drive Tallahassee, FL 32301 (850) 321-8726

Co -Counsel for 1000 Friends of Florida

Richard Grosso, Esq. Richard Grosso, PA. 6919 W. Broward Boulevard Plantation, FL 33317 Mail box 142

954-801-5662 Co -Counsel for 1000 Friends of Florida

Joseph W. Little, Esq. 3731 NW 13th Place Gainesville, FL 32605 352-372-5955 Iittiegnv(Zi)gmail.corn Co -Counsel for 1000 Friends of Florida

Brad McVay, Esq. Ashley Davis, Esq. 500 South Bronough Street Tallahassee, FL 32399 d.i11cva'@dos.mfloda.com orida corn Counsel for Secretary of State

For the Record Court Reporting, Inc. ForTheRecord(Tallaahsseecourtreporting.com

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II. APPROVED COURT REPORTER'S, CWIL COURT REPORTER'S, OR APPROVED TRANSCRIPTIONIST'S ACKNOWLEDGMENT

The foregoing designation was served on and received on

2. Satisfactory arrangements have ( ) have not ( ) been made for payment of the transcript cost. These financial arrangements were completed on

3. Number of trial or hearing days

4. Estimated number of transcript pages

5a. The transcript will be available within 30 days of service of the foregoing designation and will be filed on or before OR

5b. For the following reason(s) the approved court reporter, civil court reporter, or approved transcriptionist requests an extension of time of days for preparation of the transcript that will be filed on or before

6. Completion and filing of this acknowledgment by the approved court reporter, civil court reporter, or approved transcriptionist constitutes submission to the jurisdiction of the court for all purposes in connection with these appellate proceedings.

7. The undersigned approved court reporter,civil court reporter, or approved transcriptionist certifies that the foregoing is true and correct and that a copy has been fumished by mail ()hand delivery () e-mail () on to each of the parties or their counsel.

By: (Approved Court Reporter, Civil Court Reporter, or Approved Transcriptionist)

Address:

Note: The foregoing approved court reporter's, civil court reporter's, or approved transcriptionist's acknowledgment to be placed "at the foot of' or attached to a copy of the designation, shall be properly completed, signed by the approved court reporter, and filed with the clerk of the appellate court within 5 days of service of the designation on the approved court reporter, civil court reporter, or approved transcriptionist. A copy shall be served011all parties or their counsel, who shall have 5 days to object to any requested extension of time. See Fla. R. App. P. 9.200(b)(1), (b)(2), & (b)(3).

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(- 1 IN THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT, IN AND FOR LEON COUNTY, FLORIDA 2

3 1000 FRIENDS OF FLORIDA, INC., A FLORIDA NOT FOR PROFIT 4 CORPORATION

5 Plaintiff,

6 vs. CASE NO: 2019-C21-2215

7 THE STATE OF FLORIDA, LAUREL N. LEE, IN HER OFFICIAL CAPACITY 8 AS SECRETARY OF STATE OF FLORIDA, AND KEN LAWSON, IN HIS OFFICIAL 9 CAPACITY AS THE EXECUTIVE DIRECTOR OF THE FLORIDA DEPARTMENT OF 10 ECONOMIC OPPORTUNITY

Defendants. / ORIGINAL

15 TRANSCRIPT OF 16 VIDEO -TELECONFERENCE PROCEEDINGS

17 DATE TAKEN: June 3,2020 TIME: 10:00 a.m.- 12:00 p.m. 18 BEFORE: The Honorable John C. eeperu

20 -

21 -0 22 Proceedings reported by:

23 JESSICA RENCHEN, Court Reporter 24 On Behalf of For The Record Reporting c 25 FOR THE RECORD REPORTING TALLAHASSEE FLORIDA 850.222.5491

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2 1 APPEARANCES OF COUNSEL:

2 On behalf of the Plaintiff:

3 RICHARD GROSSO, ESQ. 6919 W Broward Boulevard, MB 142 4 Plantation, Florida 33317 E-mail: [email protected] 5 JANE WEST, ESQ. 6 24 Cathedral Place, Suite 504 St. Augustine, Florida 32084 7 E-mail: [email protected]

8 TERRELL ARLINE, ESQ. 1819 Tamiami Drive 9 Tallahassee, Florida 32301 E-mail: [email protected] 10 On behalf of Defendants: 11 MARK BUCKLES, ESQ. 12 107 E Madison Street Tallahassee, Florida 32399 13 E-mail: [email protected]

14 ASHLEY DAVIS, ESQ. Florida Department of State 15 R.A. Gray Building 500 S Bronough Street, Suite 100 16 Tallahassee, Florida 32399 E-mail: [email protected] 17

24 c25

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3 C 1 PROCEEDINGS 2 THE COURT: Okay. So Mr. Arline is here,

3 Mr. Grosso is here, Ms. Davis is here, and the

4 Department of Economic Opportunity is here.

5 MR. BUCKLES: Yes, sir.

6 THE COURT: Hold on a second. Let me un --

7 are you muted? Hold on a second. All right.

8 HaveI unmuted all the lawyers?

9 MR. LITTLE: Your Honor, Joe Little is here.

10 THE COURT: Okay. All right. Hold on a

11 second. Let me get the -- and do we have a court

12 reporter?

13 THE COURT REPORTER: Yes, sir, I'm here.

14 THE COURT: A -- all right. Go ahead, you're

15 unmuted, too.

16 All right. Looking at -- let me look at the

17 style on this case.

18 I see Jane west, you're unmuted.

19 MS. WEST: Yes, Your Honor, good morning.

20 THE COURT: I see Mr. Arline, I see

21 Ms. Davis.

22 Mr. Grosso, you represent?

23 MR. GROSSO: Yes, Your Honor, good morning.

24 I represent the plaintiffs.

25 THE COURT: All right. And the person who

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'- 4 1 just identified as the Department of Economic

2 Opportunity, are you one of the attorneys, sir?

3 MR. BUCKLES: Yes, sir, I'm here on behalf of

4 Ken Lawson as Director of the Department. And

5 just for the record,I have two other lawyers on

6 the case with me, you can't see them, but Jon

7 Morris is right here to my right, and Rebekah

8 Davis is to my left. They are both counsel of

9 record as well.

10 THE COURT: Okay.

11 MS. ASHLEY DAVIS: And Your Honor, this is

12 Ashley Davis for the Secretary. In my office I

13 have with me another attorney, Colleen O'Brien.

14 She's off camera, but she's in here with me as

15 well.

16 THE COURT: Okay. SoI think we have two

17 motions today, one filed by the Secretary of

18 State, and then one filed by -- has Ken -- let's

19 see, Laurel Lee is the Secretary of State, Ken

20 Lawson is the other defendant as executive

21 director of DRO. We have motions filed by each.

22 Ms. West, are you -- and Mr. Arline, you

23 represent the plaintiff, asI understand?

24 MR. ARLINE: Yes, Your Honor.

25 THE COURT: Okay. I have read everything

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5 C 1 that both sides have sent me, including the

2 recently filed memo from the plaintiffs,

3 supplemental memo,I read that last night, after

4 my hearings yesterday. And just so the lawyers

5 will know,I believe we do have some members of

6 the press, so -- and perhaps members of the

7 public.

8 Mr. Grosso, let me make sure you're unmuted.

9 Cops, that -- all right. I got you --

10 MR. GROSSO: Yes.

11 THE COURT: So -- all right. And so we have

12 members of the press here. So -- and we have a

13 court reporter. So we're on the record in several

14 different ways. And we may have some members of

15 the public. I can't tell whether they are

16 interested parties or members of the public. So

17 that's good.

18 I have read everything that both sides have

19 written. I've read the court file. I've read the

20 cases you've cited. In fact, most of the cases

21 you've cited I've already read many times before.

22 And I believe at least one of the cases was one

23 that Igot reversed on. I read that one a few

24 times.

25 So let me see if there's anything new file.

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6 C 1 Nothing new except the supplemental memo, which

2 I've read.

3 MS. ASHLEY DAVIS: Your Honor, this is Ashley

4 Davis on behalf of the Secretary.

5 Late last night, we also filed a request for

6 judicial notice. You're familiar with the items

7 that we were seeking notice of. One of them was

8 your order dismissing with prejudice a complaint

9 against the Secretary and Florida League of

iq Cities.

11 THE COURT: You mean that case right there?

12 MS. ASHLEY DAVIS: Yes, Your Honor.

13 THE COURT: I had this up because you had (. 14 asked -- because your argument in that case was

15 the same argument made here, and it's League of

16 Cities versus Secretary of State, Case Number

17 2019CA1948. And I-- I granted that order. As

18 far as I can tell, no appeal was taken in that

19 case.

20 MS. DAVIS: Correct. That's why we noticed

21 it now.

22 THE COURT: Okay. And what's the other one?

23 What notice would you like me to take?

24 MS. ASHLEY DAVIS: The other one is the order

25 Judge Walker in the Northern District of Florida

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7 C 1 vacating his previous order denying in part the

2 Secretary's motion to dismiss on largely the same

3 grounds. I believe you've seen that order as well

4 in the Florida League of Cities case.

5 THE COURT: I think we -- yes, I do have a

6 memory of that.

7 Anything else? Is there any -- any

8 opposition to me taking judicial notice of those

9 two orders?

10 Hearing none, Okay. And I think they are --

11 obviously the oneI wrote,I think I can take

12 judicial notice of. And Judge Walker's order is

13 not binding, but it's persuasive, since he's a

14 federal judge.

15 So I --I thought we would start with

16 Ms. Ashley Davis. Since we have two Daviss,

17 Ms. Ashley Davis, I'm going to use your first

18 name. So it will be helpful for the court

19 reporter.

20 I don't know if the court reporter --

21 Jessica, can you see the people speaking, or you

22 want me to make sure they announce themselves when

23 they speak?

24 THE COURT REPORTER: I can see everyone that

25 you can see. The other people, Mr. Little and

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8 C 1 the --

2 THE COURT: The other people. So long as you

3 can see the lawyers, if you want --I would still

4 ask the lawyers, to the best you can, identify

5 yourselves, because with a remote hearing,

6 sometimes it's a little bit more difficult for the

7 court reporter, even though the court reporter can

8 see most of the participants.

9 SoI would say to those who are not lawyers,

10 who are observing, this is a public court hearing.

11 The fact that we're on TV doesn't mean it's not a

12 court hearing. The same rules of court decorum

13 apply here as they do in -- if we were in a

14 courtroom.

15 So ifI hear of any outbursts or anything

16 like that, what I'm going to do,I will mute

17 everyone,I will delete the ability to unmute

18 yourself, and then I'll go back in and unmute all

19 the attorneys.

20 So we have eleven participants,I hope we

21 don't have to do that. I have had hearings where

22 there have been many more participants, and that's

23 had to have been done a couple of times. But

24 otherwise,I think the Zoom technology seems to be

25 working fairly well.

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'- 9 1 So Ms. Davis, why don't we start with your

2 motion -- Ms. Ashley Davis, why don't we start

3 with your motion first on behalf of the Secretary

4 of State.

5 MS. ASHLEY DAVIS: Thank you, Your Honor.

6 Ms. Ashley Davis on behalf of the Secretary of

7 State.

8 I -- Your Honor, we can largely rely upon the

9 arguments made in our motion to dismiss. Upon

10 review of plaintiff's response to our motion, it

11 did not undercut any of the Secretary's arguments

12 in any way that she is not a proper defendant and

13 that the Court lacks jurisdiction in this action

14 as to her.

15 And a couple of points need clarification

16 from the plaintiff's response to our motion that

17 I'll raise now.

18 Plaintiffs knew that there is a distinction

19 between as applied and facial challenges that is

20 somehow facial challenges can be brought against

21 some entities of the State without any regard to

22 that entity's enforcement authority. That is

23 incorrect.

24 Facial versus as applied is a distinction

25 without a difference.

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10 'w 1 Every constitutional challenge must be

2 brought against a proper party under the analysis

3 underFrancati V. Scott, Atwater v. City of

4 Weston,and the decision in Apthorp that Your

5 Honor is very much aware of.

6 THE COURT: That's the one,I recall, that I

7 was reversed on,on the --I know I was reversed

8 on present case of controversy. I don't recall --

9 did Ileave the Secretary of State in on there,

10 too?

11 MS. ASHLEY DAVIS: Yes, Your Honor.

12 THE COURT: Okay. I was reversed in that

13 case, but I have no problem with that decision or

14 any other decision, whether it affirms me or

15 reverses me, because that's the function of the

16 appellate court. So when they rule on something

17 that's strictly on point,I am required by law to

18 abide by that ruling.

19 Okay. So -- wait a second.

20 Somebody has a cell phone on that's ringing.

21 You need to turn that off.

22 Okay.

23 MS. ASHLEY DAVIS: May I continue, Your

24 Honor?

25 THE COURT: Yes, you may.

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11 (' 1 MS. ASHLEY DAVIS: Okay. So that's a

2 distinction without a difference, this argument

3 that there is some distinction between facial and

4 as applied challenges, and facial challenges don't

5 need to be brought against an entity with

6 enforcement authority.

7 Another point that I would like to make a

8 clarification is that the case that they cite

9 largely for that proposition is Dade County

10 Classroom Teachers Association. That case did not

11 hold to the contrary. It did not at all address

12 who is or is not a proper party defendant because

13 it was simply not at issue. The plaintiffs in

14 that case sued the Legislature to compel the

15 Legislature to enact enabling legislation, which

16 is very fundamentally something that the

17 Legislature can do or not do.

18 So it doesn't bring any further clarification

19 to the issue before you.

20 Finally, while the Secretary may be proper to

21 challenges to general appropriations acts,

22 provisions and vetoes, this is not that

23 circumstance. So our admission, as plaintiffs

24 frame it, that the Secretary may be a proper party

25 to defend those types of actions isn't helpful to

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12 C 1 plaintiffs here either, because this is not that 2 kind of action.

3 Finally, and this was not in the papers, but

4 it occurred to me that it may be a very important

5 issue this morning when I was reviewing the case,

6 this action might now be largely moot, and there

7 are a couple of reasons for that.

8 Plaintiffs seek only, at least as to the

9 Secretary, to expunge the challenged law from the

10 laws of Florida and prohibit their further

11 codification into statute. That!s in the

12 wherefore clauses of their amended complaint. But

13 that has already happened. The codification of

14 this challenged law is -- has already been made.

15 It's in the 2020 -- during the 2020 regular

16 session, excuse me, the Legislature adopted the

17 2020 Florida Statutes. Specifically, the

18 compilation of the public statutes of 2019

19 prepared by the Office of Legislative Services is

20 adopted and enacted as the official statute law of

21 the State under the title Florida Statutes 2020.

22 That adoption is found in 2020-1, Laws of

23 Florida, and it became effective just recently on

24 May 18th, which is 60 days after (inaudible) of

25 the regular 2020 session.

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(' 13 1 So the relief that the plaintiff seek against

2 the Secretary seems to be moot. These laws are

3 already -- have already been codified in the

4 statute.

5 Moreover, the stand-alone single subject

6 claim that they have brought was also rendered

7 moot by this 2020-1, Laws of Florida, because

8 reenactment of the law and promulgation into

9 Florida Statutes cures any single subject

10 violation. And I can site a First DCA case for

11 that -- or I'm sorry,a Florida Supreme Court case

12 for that general --

13 THE COURT: I believe, Ms. Davis, that the (b. 14 plaintiff in their filings have now conceded that

15 the single subject portion of the challenge is

16 gone, and they are relying on the substantive --

17 MS. ASHLEY DAVIS: And as to that -- yes,

18 Your Honor. And as to that, the 2020-1,it also

19 renders moot their request for relief against the

20 secretary to expunge it from the Laws of Florida,

21 which it's no longer part of, and prevent its

22 further codification into statute.

23 THE COURT: Okay. Thank you, Ms. Davis.

24 Does the plaintiff wish to respond, Mr. Arline or

25 Ms. West?

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14 1 MR. GROSSO: Your Honor, Richard

2 THE COURT: Mr. Grosso?

3 MR. GROSSO: Thank you, Your Honor.

4 I think we've already conceded the law is

5 pretty clear on the reenactment -- readoption

6 statute, single subject goes away. But the

7 statute -- the -- constitutionally, defective

8 statute is on the books. I think a declaration

9 that it's unconstitutional is certainly relief

10 that the Court can grant. Whether that even

11 requires you to issue an injunction requiring the

12 secretary to -- to expunge it, to remove it from

13 the Florida Statutes, I'm not sure that that's

14 even necessarily required.

15 So, you know, I think the argument is,since

16 it's been recodified, the entire case is moot, I

17 just don't think that's -- that's got merit.

18 THE COURT: Okay. If the law were to be

19 found unconstitutional, then the Secretary --

20 without getting into the weeds, the Secretary of

21 State would have certain administrative steps

22 which may or may not have to be taken, if those

23 weren't taken, those would probably be subject to

24 a mandamus. SoI think there's a bunch of case

25 law -- a lot of case law that says that the

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15 'p, 1 Secretary -- state agencies are presumed that they

2 will follow court orders. So thank you.

3 I think I will reserve ruling, if you don't

4 mind, until I've heard the other cases.

5 Ms. Davis, do you have anything in reply to

6 say? Ms. Ashley Davis?

7 MS. ASHLEY DAVIS: No, Your Honor, thank you.

8 THE COURT: Okay. So let's move on to the

9 motion -- let me find it -- Defendant -- Defendant

10 Lawson's motion, which he -- he is being sued in

11 his official capacity, so that is in effect. His

12 official capacity means it's Defendant Lawson in

13 his official capacity and it's in effect the

14 Department of Economic Opportunity. That's the

15 way I interpret official capacity suits. So who

16 is -- hold on a second.

17 MR. BUCKLES: Sir, Mark Buckles here for the

18 Director.

19 THE COURT: All right, Mark?

20 MR. BUCKLES: Yes.

21 THE COURT: All right. Give me just a

22 second.

23 All right, Mr. Buckles, I'll be glad to hear

24 your argument on the motion.

25 MR. BUCKLES: Okay. I would like to just

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16 C 1 give a little bit of background, and then walk 2 through the four arguments we make in the motion

3 to dismiss amended complaint with prejudice.

4 At its core, this hearing is about whether

5 the director is going to be required to defend a

6 lawsuit regarding a statute that DEO does not

7 implement, administer, or enforce.

8 Plaintiff's amended complaint was filed on

9 January 29th. We have a group, 1000 Friends of

10 Florida, and an individual, Mr. Howell, suing the

11 Department, suing the Director, as well as the

12 Secretary of State. This is an action that is a

13 challenge to the constitutionality of a prevailing ( 14 party fee provision now codified at

15 163.3215(8) (C), and it's a facially mutual

16 provision. This is not an action brought under

17 the statute 163.3215. I think that's an important

18 point.

19 So 163.3215(3)is the consistency challenge

20 statute. That statute allows that an aggrieved

21 party or adversely affected party may seek

22 declaratory or injunctive relief against a local

23 government regarding local development orders

24 which are allegedly not consistent with the

25 comprehensive plan. This may happen within 30

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(" 17 1 days after the rendition of a development order or

2 other written decision or after the exhaustion of

3 local administrative appeals so it could be much

4 more than 30 days that elapsed before the

5 challenge occurs.

6 The issue the plaintiffs have is with the

7 recently added prevailing party fee statute, which

8 is set forth at 163.3215(8) (c)

9 So the text of that portion of the statute

10 reads as follows: The prevailing party in its

11 challenge to a development order within Subsection

12 3 is entitled to recover reasonable attorneys'

13 fees and costs incurred in challenging or (bY 14 defending the order including reasonable appellate

15 attorneys' fees and costs. It is facially

16 neutral.

17 The plaintiffs urge the Court to allow a

18 challenge to this neutral statute which, as far as

19 I'm aware, has not been done before in Florida.

20 The plaintiffs seek declaratory and

21 injunctive relief in three counts. We've heard

22 argument already from Ms. Davis about Count 1, I

23 agree. And I think plaintiffs have conceded that

24 that count is now moot, and I would adopt that

25 argument as well.

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18 C 1 Count 2 alleges a violation of substantial

2 due process guarantee in the Florida Constitution,

3 Article 1, Section 9.

4 Count 3 alleges a violation of Article 1,

5 Section 5 of the Florida Constitution, and

6 Amendment 1 of the U.S. Constitution that alleges

7 abridgement of the right to petition the

8 government for redress of grievances.

9 They have stated in the complaint, and they

10 sued the Director because they say he, quote,

11 implements this statute, 163.3215. And they are

12 seeking a declaration and an injunction.

13 We concede that DEO is the state land

14 planning agency that is in 161.54 Sub 10, but that

15 does not mean it administers all of Chapter 163.

16 I would like to just go through what Chapter

17 163 provides for. Part 1 has miscellaneous

18 provisions; Part 2 concerns growth policy, county

19 and municipal planning land development

20 regulation; Part 3 concerns community

21 redevelopment; Part 4, neighborhood improvement

22 districts; Part 5,regional transportation

23 authorities; and Part 6,collaborative client

24 information systems.

25 Plaintiffs appear to allege that because DEO

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(' 19 1 is involved with certain sections of the chapter,

2 then by association, it's the agency responsible

3 for enforcing 163.3215, and that we should,

4 therefore, be amenable to being sued. They're

5 suggesting that we should agree to being sued.

6 DEC's role under Chapter 163, however, is

7 limited to specific grants of authority from the

8 Legislature, which is -- does not include

9 enforcement of anything under 163.3215. And

10 certainly not the enforcement of an attorneys' fee

11 provision, which is the subject of the amended

12 complaint.

13 We have multiple legal arguments for the

14 Court. And I set all this forth in our 28 -page

15 brief. We're seeking dismissal with prejudice.

16 IfI may,I would just like to walk you through

17 those four arguments.

18 THE COURT: Okay.

19 MR. BUCKLES: One thing you've already heard,

20 which we're going to echo and reiterate, the Court

21 lacks subject matter jurisdiction. There is no

22 case or controversy here or bona fide dispute

23 before the Court. I would like to cite to the

24 case the State of Florida -- this is Florida v.

25 Florida Consumer Action Network, 830 So.2d 148.

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(' 20 1 That's a First DCA case there. The appellate

2 court reversed summary judgment and remanded with

3 instructions to dismiss with prejudice due to no

4 justiciable controversy. A citizens group there

5 had brought a dec action seeking to have revisions

6 to the Court system declared unconstitutional.

7 The Court specifically rejected what was

8 called the ripening seeds of controversy theory,

9 except there was no bona fide actual present need

10 for a declaration, no actual present adverse

11 antagonistic interest, and there was a need or a

12 real threat of immediate injury for the case to be

13 able to move forward under a case in controversy

14 approach.

15 Additional case, Apthorp v. Detzner, 162

16 So.3d 236 -- that's a First DCA case -- vacated to

17 trial court's declaratory judgement on

18 constitutional claim with instructions to dismiss

19 due to failure to raise a justiciable controversy

20 with the defendant State agency. That appeared to

21 be a facial challenge as the appellate court noted

22 that the appellant argued the mere existence of

23 the statute was enough to give rise to the

24 necessary controversy to maintain a dec action.

25 One other case I'll cite on this point,

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21 1 Treasurer Chest Poker, LLC v. Department of

2 Business and Professional Regulation, 238 So.3d

3 338, Second DCA reversed the trial court's

4 declaratory judgment for lack of subject matter

5 jurisdiction with instructions to dismiss with

6 prejudice. They failed to allege a bona fide

7 dispute.

8 In this case, the amended complaint added an

9 individual, Mr. Howell. The original complaint

10 just had the group.

11 But Mr. Howell was never subject to the

12 statute in this prior case mentioned in the

13 complaint. He dismissed his case on June 24th

14 after, quote, years of litigation. He did not

15 plead a present case or controversy. A

16 substantive law has prospective effect only. The

17 law was passed May 3rd of 2019, so it would not

18 have applied to him.

19 We got a string cite on that point setting

20 forth the law on Page 8of our motion. Two other

21 cases are Young v. Altinhouse (phonetic), the

22 other one L. Ross, Inc.V. Roberts Construction.

23 As to 1000 Friends, it only says that it is

24 now economically unfeasible to bring cases to

25 challenge local development orders. In both

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22 (w 1 instances, there is no bona fide case or

2 controversy before the Court. There is no threat

3 of immediate injury. Therefore, subject matter

4 jurisdiction is lacking.

5 I would also point to the case ofScott v.

6 Francati,which I think was mentioned earlier.

7 That's 214 So.2d 742 [sic], First DCA. That's a

8 recent case that sets forth the test that

9 plaintiffs cannot meet. It's a three-part test.

10 The first inquiry is whether the defendant is

11 charged with enforcing the statute. And note that

12 it doesn't say statutory scheme, it says statute

13 in the case. (l 14 To read from the case, "If the named official

15 is not the enforcing authority, then the courts

16 must consider two additional factors, whether the

17 action involves a broad constitutional duty of the

18 State implicating specific responsibilities of the

19 State official, and whether the State official has

20 an actual cognizable interest in the challenged

21 action." That case cites toAtwater v.City of

22 Weston,64 So.3d 701.

23 Plaintiffs in this case cannot meet that

24 test. There is no broad constitutional duty that

25 is implicated. The director of DEO has no

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23 C 1 cognizable interest as to the prevailing party fee

2 statute, the DEO is not -- not and won't be a

3 party to those cases.

4 THE COURT: Can you give me just a second --

5 just a minute, the citations of that case? Let me

6 pull up West Law.

7 MR. BUCKLES: Scott v.Francati?

8 THE COURT: Yes.

9 MR. BUCKLES: Francati, 414 So.2d 304 -- no,

10 I'm sorry, 214 So.2d 742.

11 THE COURT: Okay. Hold on. I'm sorry, I

12 don't -- somehow -- okay. There we go.

13 MR. BUCKLES: So.3d.

14 THE COURT: Okay. So.3d.

15 MR. BUCKLES: Sorry about that.

16 THE COURT: That's okay. 214 So.3d 742? Or

17 41?

18 MR. BUCKLES: 742.

19 THE COURT: All right. Let me look at this

20 one quickly.

21 Governor was entitled to a writ of

22 prohibition barring trial court from conducting

23 further proceedings in former nursing home

24 patient's dec action challenging constitutionality

25 of a statute limiting who can be sued in nursing

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24 (p, 1 home cases. Lack of subject matter, jurisdiction,

2 et cetera. Judge Rowe wrote that. Let's see.

3 And Judge Ray and Judge Kimberly Thomas concurred.

4 Let me look at the -- okay.

5 I'm familiar with that case. It doesn't say

6 who the judge is. I don't think it was me. But

7 I'm familiar with it. So did I--

8 MR. BUCKLES: We submit for the Court's

9 jurisdiction, we think it's the Court's, that

10 there's no case or controversy here. And that a

11 dismissal with prejudice is appropriate.

12 They actually went to the court and got a --

13 the appellate court and got a writ of prohibition

14 on the Scott v. Francati case. And it's Footnote

15 1 and 2,is where the discussion on the three-part

16 test is.

17 IfI may move on, we have additional legal

18 arguments. Our second argument is lack of

19 standing. The issue of standing is interrelated

20 to case in controversy. This is not an action

21 under Section 163.3215, which would require the

22 local government that issues the development order

23 to be named as a respondent. So the common law

24 standing applies. For standing to be proper,

25 there must be a direct and articulable stake in

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25 C 1 the outcome of the controversy, it must be legally

2 cognizable and not conjectural or hypothetical.

3 They cited Florida Supreme Court 2006, Hayes

4 v. Guardianship of Thompson,935 So.2d 505[sic]

5 As mentioned, Mr. Howell has no interest or

6 injury that could reasonably be affected by the

7 outcome of this litigation. The subject statute

8 would not have applied to him. And that is

9 apparent on the face of the amended complaint.

10 Given the statute's prospective effect, they

11 attached the bill to the complaint, so we -- we

12 know when the statute took effect.

13 And, in fact, he said he had been in

14 litigation -- years of litigation prior to that.

15 So it just would not have applied.

16 1000 Friends speculates that it might not

17 bring litigation at some indefinite point in the

18 future because it now faces an economic

19 disincentive. It might have to pay some

20 unspecified party's attorneys' fees in a future

21 case. These allegations are fundamentally

22 indefinite, uncertain, and remote, and do not

23 contain the level of specificity and immediacy to

24 impart standing.

25 We have a string cite,I won't go through all

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26 C 1 the cases, but it's on Page 15 of our brief,

2 Citizens Growth Management, Florida Rock

3 Properties are two of the cases. I won't give the

4 cites, but they are in our brief.

5 THE COURT: Okay. I've -- yeah, again, I've

6 read it.

7 MR. BUCKLES: Okay. The full legal argument

8 we want to make is failure to state a cause of

9 action. Plaintiffs have failed to state causes of

10 action for declaratory and injunctive relief. One

11 case I'll draw to the Court's attention, Hankins

12 v. Title and Trust Co. Of Florida, 169 So.2d 526,

13 that's First DCA. It sets forth the rule for

14 evaluating the sufficiency of a declaratory

15 judgment complaint. All of the appellate courts

16 in Florida have recognized that the test here is

17 whether the plaintiff is entitled to a declaration

18 at all.

19 The plaintiffs don't state the causes of

20 action for declaratory judgment. They make only a

21 general reference to Chapter 86. They don't

22 specify what subsection of the chapter is being

23 utilized to assert the cause of action. The

24 Director of DEO should not have to guess what

25 subsection of the chapter is at issue, if any.

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(., 27 1 I'd like to cite to the case of Okaloosa

2 Island Leaseholders Association, Inc., 308 So.2d

3 120, First DCA, states there must be a bona fide

4 dispute between compending parties so as to

5 present a justiciable issue. It can't be a

6 hypothetical question remote in time or uncertain

7 as to contingency.

8 Here --

9 THE COURT: On that point, the -- you're

10 arguing there's no bona fide dispute between the

11 parties, there's no justiciable controversy which

12 you say goes to jurisdiction of the Court as well

13 as cause of action? Is that your argument?

14 MR. BUCKLES: I think they are all related.

15 THE COURT: Okay.

16 MR. BUCKLES: They don't have a basis to

17 claim relief, and that's why we've asserted the

18 failure to state a cause of action.

19 THE COURT: Okay.

20 MR. BUCKLES: There is no present injury or

21 threat of arm that requires a declaration by the

22 Court. The Department would not ever -- the

23 Department,I mean DEO, the Department of Economic

24 Opportunity, would never be an adverse party to

25 either of the plaintiffs in an action under

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28 (w 1 163.3215 since those actions are brought against

2 local governments. And if -- Director Lawson

3 would not be affected by any declaration that the

4 Court might issue, which is a requirement of

5 Florida Statute 86.091, since he does not

6 implement, administer, or enforce 163.3215. He

7 takes no action regarding attorneys' fees

8 consistency challenge matters. The Department has

9 no cognizable interest that would be affected,

10 therefore, plaintiffs have failed to state a cause

11 of action.

12 And I would like also to comment on the

13 injunctive portion of the complaint because they

14 have also failed to state a cause of action as to

15 injunctive relief.

16 They simply state in the complaint that they

17 are seeking permanent and temporary injunctive

18 relief under Chapter 60 of the Florida Statutes to

19 enjoin Director Lawson from implementing the

20 attorney fee provision of 163.3215. He --

21 Director Lawson has no interest to be enjoined.

22 THE COURT: Your argument is Director Lawson

23 doesn't have the authority to -- to enact

24 attorneys' fees or not? It would be the local

25 government bodies that would do that, if they are

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29 C 1 subject to an action? 2 MR. BUCKLES: Well, it would be the Circuit

3 Court that would make that final

4 determination whether to --

5 THE COURT: Right. But you don't sue DEO

6 when you're objecting to a development order, do

7 you?

8 MR. BUCKLES: That is correct. You see what

9 is -- the local government is what ends up being

10 the defendant.

11 THE COURT: Are there any instances where the

12 DEO can be sued for which this fee -shifting

13 provision might apply?

14 MR. BUCKLES: I don't believe so, Your Honor.

15 THE COURT: Okay.

16 MR. BUCKLES: That's what the --

17 THE COURT: All right.

18 MR. BUCKLES: So, you know, as to this

19 injunctive relief, the counts for injunctive

20 relief are legally insufficient. We talked about

21 the claim for the statutory injunction, which they

22 just don't apply.

23 They have also -- they are also seeking a

24 temporary injunction, Florida Rule of Civil

25 Procedure 1.610 sets forth the requirements you

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30 (my 1 have to go through to get a temporary injunction.

2 If they need an affidavit or verified pleading,

3 that immediate irreparable injury and loss or

4 damage will result. That has not been submitted

5 in this case.

6 As I said, there's no interest that can be

7 enjoined, so the requested relief would not

8 materialize.

9 They make no claim for a common law temporary

10 injunction. I've mentioned that in a footnote in

11 the brief. The requirements for that are well

12 established in the case law.

13 Telemundo Media, 194 So.3d 434 sets forth the

14 requirements.

15 Also the First DCA case of State Department

16 of Health v. Bayfront HMA Medical Center, 236

17 So.3d 466 contains the same five -part test. I can

18 run through it,if you'd like, but it just doesn't

19 apply here because they have not made a claim for

20 common law injunction, and they certainly haven't

21 set forth anything close to the requirements of

22 the five -part test.

23 So we don't believe injunctive relief would

24 be appropriate for the plaintiffs or statutory

25 injunctive relief.

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" 31 1 Lastly,I would like to raise the argument of

2 failure to plea of ultimate facts.

3 THE COURT: Why don't -- why don't we pass

4 that for now, and here's the reason Isay we pass

5 that for now.

6 If you are correct on your first several

7 arguments, we don't really ever get to that, do

8 we?

9 MR. BUCKLES: I --I don't think every

10 argument we've made is appropriate for the Court's

11 consideration, and I would agree with you. If

12 we --

13 THE COURT: I'm not telling you to abandon

14 it, but I have read the part -- your portion of

15 the memo in that regard. So if -- once you hear

16 the plaintiff's argument, if you need to address

17 that,I certainly don't object to it, but --

18 MR. BUCKLES: Okay. Thank you.

19 THE COURT: So who would like to address this

20 from the plaintiff's standpoint? Mr. Grosso?

21 MR. GROSSO: Thank you, Your Honor. And I

22 appreciate the amount of time you've given us

23 today.

24 THE COURT: I'm going to -- I!m going to ask

25 the court reporter, maybe we'll take a break

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32 (w 1 around 11:00, about a 10 -minute break for

2 everybody. SoI want to let you know that I'm not

3 going to just go straight through.

4 So go ahead, Mr. Grosso.

5 MR. GROSSO: Okay. Thank you, Your Honor.

6 Let me -- there's -- let me address

7 rightness, first of all.

8 You know, we've cited to you the Montgomery

9 case. A challenge is right when you have no

10 choice but to either comply with it or suffer the

11 consequences. That is what this case is very much

12 about. And, you know, I'll explain that a little

13 bit in a moment.

14 But -- and then you've got the Q Line

15 (phonetic) case that -- that overturned the

16 dismissal for lack of standing. These folks were

17 challenging the constitutionality of a law that

18 required them -- out-of-state car owners to pay an

19 additional tax, and the State had said, well, they

20 can't bring this yet, they don't have standing,

21 it's not right. They haven't actually paid the

22 tax yet, or they haven't asked for refunds, if

23 they have already paid the tax.

24 And the Court said that's not required. They

25 face penalties for failure to pay. They are

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" 33 1 alleging that the law requiring them to pay is

2 unconstitutional, that is sufficient --

3 THE COURT: Mr. Grosso, let me ask you this,

4 the Q Line case is 1994. Do you believe that

5 there's been any shift by the Florida Supreme

6 Court or the First District in its decisions from

7 1994 to now as it relates to standing in

8 justiciable controversy issues?

9 MR. GROSSO: I don't believe so. I think

10 we'll address even some later cases here in a few

11 moments. I don't believe that the law has

12 materially changed.

13 THE COURT: Well,I will rely on those cases

14 in -- in the caseI got reversed in to enter a

15 ruling on the statute in that case. And I was

16 reversed, so --

17 MR. GROSSO: Okay. If that was the -- then

18 perhaps the Apthorp case. Let me address the

19 Apthorp case, Your Honor.

20 THE COURT: Right.

21 MR. GROSSO: You know, that was a facial

22 challenge to the blind trust law. And the

23 plaintiff said, this law actually shields

24 candidates and officials from having to fully

25 comply with the constitutional requirement for

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34 (w 1 full and public disclosure.

2 THE COURT: That was the statute that was

3 unanimously passed by the Legislature. It had

4 been used -- this trust had been used by both

5 parties, not just one party.

6 HR. GROSSO: And -- and that may be -- I

7 think that's true. I'm not --I don't remember

8 that exact point, but the reason that the Court

9 found a lack of standing, a lack of rightness, is

10 no candidate, no official had actually taken

11 advantage of the blind trust law. So the Court

12 said unless and until some candidate makes use of,

13 takes advantage of this blind trust law that the

14 plaintiff says let's them off the constitutional

15 hook, until that happens, there1s no harm.

16 THE COURT: Mr. Grosso, I'm not doing this to

17 disagree with the First District, because that's

18 not my -- you can't -- I'm doing this to tell you

19 where I think the appellate courts are. That --

20 the Apthorp case,I believe, was in an election

21 year when the governor, then current governor was

22 running for reelection. He had used a blind trust

23 before that, not under that statute, but he had

24 used a blind trust,I recall. The Legislature

25 passed a blind trust statute unanimously, and it

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35 C 1 was clear at the time that he intended touseit 2 again under that statute.

3 So here's my -- my point, though. It seemed

4 in that case that an argument could be made that

5 there was a justiciable controversy or one would

6 be coming up real soon. But the District Court

7 didn't agree with that, so -- isn't that your

8 argument now, that while you may not have an

9 appeal or a challenge to a development order, it's

10 going to happen real soon, and then we're going to

11 get tagged with it?

12 MR. GROSSO: Not exactly. Let me mention two

13 points in response to that, Your Honor.

14 First of all,it -- at Page 241 of the

15 Apthorp decision, I think the Court was very clear

16 that the reason it found no standing is that no

17 candidate or public officer had used the qualified

18 blind trust under the statute. b me, that was,

19 indeed, reason for the dismissal. And I don't --

20 THE COURT: But the argument here is,

21 although no one has been tagged with that statute,

22 that fee -shifting statute, they are about to be.

23 MR. GROSSO: It's actually a little more

24 nuanced than that, Your Honor.

25 THE COURT: Okay.

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36 C 1 MR. GROSSO: The reason there'sanimmediate 2 need for a ruling to find this law

3 unconstitutional, the reason that so many of those

4 you -haven't -been -injured -yet cases don't apply

5 here is that the statute -- what the statute did

6 that's unconstitutional, is it says you are now

7 running the risk of an attorneys' fee award that

8 you got to pay the local government's attorneys'

9 fees, you'll have to pay the land owner or the

10 developer's attorneys' fees. And the gravamen of

11 this complaint is nobody but the wealthiest of

12 citizens can even take that chance.

13 1000 Friends of Florida, which has brought

14 suits under this case before, Mr. Howell, members

15 of 1000 Friends, when they go to their attorneys

16 and say, we've got a development that's going to

17 impact our homes, impact our property, impact our

18 communities, let's bring the single challenge, the

19 lawyers have to say, well, before you do that, you

20 got to know, you're going -- if you don't win, if

21 you try and enforce the law and don't win, you

22 will be hit with automatic attorneys' fees, not

23 frivolous purpose or improper purpose.

24 And so the problem is --

25 THE COURT: Let me ask you this question. I

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37 C 1 believe this was in the late '70s, early '80s, the

2 Florida Legislature passed a fee -shifting

3 provision in medical malpractice cases that said

4 the winner gets fees. And it was eventually

5 rescinded because it generated a flood of

6 plaintiff cases because now they had a possibility

7 of collecting fees.

8 Also, in civil rights actions, Civil Rights

9 actions have a life,in large part, 1983 action,

10 Florida Civil Rights action, et cetera, because

11 there is a fee -shifting statute in there.

12 Now,I recognize that Florida did some -- the

13 federal court decisions under -- is it 1981, which

14 is the fee -shifting statute? They're -- they say

15 they have taken a position where they are very

16 hesitant to grant fees against losing plaintiffs

17 in that case, although the statute is a classic

18 fee -shifting statute.

19 So is the -- the eminent danger argument any

20 different in this case than it was in the -- in

21 the blind trust law case? Because I-- it seemed

22 to me to be very similar.

23 14R. GROSSO: It's -- I --

24 THE COURT: Especially --I went ahead and

25 ruled on these statutes because it seemed that it

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38 (w 1 was -- either the governor was using it or he was

2 fixing to.

3 MR. GROSSO: All -- and all I can do in

4 response to that, Your Honor, is --I mean, I just

5 read the case -- you know,I read it now a couple

6 of times. And to me -- and we've cited in our

7 memo to you, to me it's clear, the courts -- the

8 factual basis upon which the Court dismissed the

9 case was that no candidate or officer had made use

10 of this blind trust. So there was no

11 constitutional violation, nobody had taken

12 advantage of it,so the constitutional full public

13 disclosure requirement was -- had not been

14 violated. Had the moment -- under the Apthorp

15 ruling, the moment that a candidate or an officer

16 did in the future make use of the blind trust law,

17 then the case would have been right. To me,

18 that's the distinction. I -- the fact that --

19 THE COURT: In the Q Line case, though, the

20 court rejected the State's argument that

21 plaintiffs lack standing because they had not paid

22 the fee or been requested to refund a fee. And

23 the Court there says, we don't believe there's a

24 requirement that the plaintiff must pay the fee or

25 request a refund, at least in the present case.

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" 39 1 Isn't that saying it's fixing to happen?

2 Even though it hasn't happened? So that does

3 support your argument, but that seems to me to be

4 contrary to the clear trend of the case law in the

5 last 10 or 15 years.

6 MR. GROSSO: I think that what the Court is

7 saying there, is if you -- you are now being told

8 you have to pay this fee. There's no speculation,

9 there's no -- there's just no speculation. The

10 law is clear. The facts are crystalized. You

11 have to pay it. You -- you're arguing that it's

12 unconstitutional that you have to pay it,

13 therefore, the case is justiciable and right.

14 ButI don't even --I don't know that an

15 argument does not even rely necessarily on the Q

16 Line case.

17 THE COURT: Okay.

18 MR. GROSSO: Under the Apthorp case and under

19 the other rightness casesI believe that we -- we

20 meet the test.

21 The -- let me explain to you, you know, I --

22 we've cited to you the First Amendment case, New

23 Mexicans for Bill Richardson that -- it's a

24 federal case, it's -- it's persuasive. But it

25 says that -- the First Amendment rights of free

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40 (w 1 expression and association, which we've raised

2 here, are particularly apt to be found right for

3 imminent protection. And the case says, there's

4 three things you look at. Is there a hardship of

5 the parties by withholding review?

6 We're saying this law has now precluded

7 people from being able to defend their -- their

8 property, their communities under the growth

9 management law. Is there a chilling effect that

10 the law has? That's the essence of what we've

11 argued. And is the case fit for judicial review?

12 And we would argue, and just to address the

13 argument that the Secretary -- Secretary of State

14 makes, even though there's got to be a defendant,

15 either an as applied or a facial challenge, the

16 context matters. And the context of this is that

17 on its face, this statute is now irrational and it

18 punishes people for violating their right to

19 petition government, and it has written itself --

20 if you accept the arguments of the defendants,

21 this law has written itself out of judicial

22 review. Hecause if you accept the Department of

23 Economic Opportunity's argument then, the only

24 people, the -- if you bring a lawsuit like this,

25 the only time it would be right is if you have a

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41 (F 1 plaintiff that has brought one of these

2 comprehensive plan enforcement cases and it lost

3 and gets hit with an automatic attorneys' fees

4 award, then you've got a right case.

5 Now, that is saying contrary to the

6 Montgomery case, the only way to test this is to

7 put yourself in harm's way of substantial

8 liability. Only those people who are facing that

9 liability today will have standing.

10 But when the problem is, nobody is going to

11 bring lawsuits under this law anymore because of

12 the automatic attorneys' fees provision. That is

13 a unique, compelling part of this statute that

14 makes it justiciable at this point, because every

15 day that development orders are being issued

16 across the state by local governments, and the

17 neighbors, the third parties, the people who are

18 affected can't enforce this law because of the

19 provision that we're challenging here, that's the

20 injury, this happening every day, and it's a real

21 injury.

22 We've cited to you, you know, that the

23 argument has been there's a lack of need, there's

24 no current need for you to take this case.

25 You know, I've cited to you the Pinecrest

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42 (p, 1 Lakes case, the Schneider Supreme Court case.

2 Those cases make it clear that this law was a

3 remedial law. It was designed to fix a problem

4 the Legislature perceived that local government

5 development approvals were not being consistent

6 with a comprehensive plan.

7 And so the Schneider case, the Pinecrest

8 Lakes case explained what happened was, the

9 Legislature adopted this cause of action saying if

10 there can't be people on the ground who are

11 impacted by development withstanding to enforce

12 the comprehensive plan when it's violated by

13 specific developments, then the public policies in

14 Florida Land Use law cannot be met. The

15 objectives cannot be met. This was a remedial

16 statute that gave broad standing to people. The

17 case law has said --I think it's the Southwest

18 Ranches case, this law can't work,it doesn't make

19 sense without meaningful citizen enforcement. The

20 Supreme Court has taken that to such an extent,

21 that said there's strict judicial scrutiny that

22 applies when a neighbor challenges a development

23 order as being inconsistent with a comprehensive

24 plan. And then they said this law doesn't work,

25 if you don't have that.

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(' 43 1 And so that is the immediate need. The

2 Department of Economic Opportunity argues, well,

3 we don't enforce this specific part of the law.

4 But what this law does, the entire statutory

5 scheme that this is, says local governments have

6 to write these comprehensive plans. And the

7 Department of Economic Opportunity is the one who

8 determines if those plans meet the state

9 requirements, are they in compliance with state

10 law.

11 Your Honor, can I pause for a minute? I

12 don't see your face anymore. I want to make sure

13 you're hearing me.

14 THE COURT: I'm here.

15 MR. GROSSO: Okay. And the Department

16 determines whether the plans --

17 THE COURT: I'm here.

18 MR. GROSSO: And the statutory scheme is then

19 all about once these plans are in place -- they

20 are not there just to sit on a shelf. They only

21 matter because all development approvals have to

22 be consistent with them.

23 The development order challenge provisions

24 under 163.3215 that have now been thwarted by this

25 automatic attorneys' fees provision are the

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44 (w 1 culmination of that process, the entire reason for

2 requiring plans is that all development has to be

3 consistent with those plans. The courts have

4 interpreted the statute to say -- one goes with

5 the other. If you can't enforce the comprehensive

6 plans, then everything the Department of Economic

7 Opportunity does as it reviews the 67 -county plan,

8 the plan amendments, and the 300 -some cities we

9 have in Florida is moot, it's irrelevant, it

10 doesn't -- it's totally superfluous. You have

11 rendered the entire statutory scheme inoperable,

12 irrelevant.

13 And so, you know, when the cases say, and I

14 guess it's the Francati says, you know, there has

15 to be some interest. It can be indirect. It's

16 fit. I think the Department of Economic

17 Opportunity, I think, is hard pressed to say it

18 does not have the requisite interest in the

19 enforcement of the comprehensive plans that it

20 oversees in Florida. It is clearly -- and the

21 Atwater case gets into this. The Atwater case

22 says, we're dismissing the plaintiffs -- I'm

23 sorry, the defendants here because the person --

24 the entity you should have sued is the State Land

25 Planning Agency. That's the agency that oversees

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45 C 1 growth management. And the Growth Management

2 Department has the exclusive and pervasive state

3 agency role in the growth management, otherwise

4 known as Comprehensive Planning Law.

5 So the Apthorp case supports what I'm saying

6 here, that the Department of Economic Opportunity

7 is far from a disinterested, we have no effect, we

8 have no interest in this case party. It's got a

9 pervasive exclusive, excuse me, role in

10 implementing this law.

11 THE COURT: Mr. Grosso, does the Department

12 have -- are there any scenarios in which the

13 Department would -- could be in a lawsuit and seek

14 to apply this statute against someone suing the

15 Department? Do people challenge development

16 orders in including the Department?

17 MR. GROSSO: No, not that Iknow of.

18 THE COURT: Yeah. My --I think the

19 Department at some point used to,I don't know if

20 they still do, sometimes if you -- if you -- if a

21 county or a city wants to file a comp plan

22 amendment, or something of that nature, they send

23 it to the Department for review, and -- but

24 eventually, if the City or the County adopts a

25 comp plan amendment, usually the action

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46 C 1 challenging that amendment comes against the city 2 or the county in that location. Is that right?

3 MR. GROSSO: That -- it -- it depends.

4 There's a nuance of this law. It depends.

5 Sometimes it's against the Department and the

6 local government.

7 But the point is, that even the Department

8 acknowledges it has the direct role that's

9 implicated in comprehensive plan changes and

10 review.

11 What the Department's argument is,is that it

12 doesn't play a direct role in a subsequent

13 enforcement of those plans under the statute that

14 we are challenging here. And my point is that its

15 indirect involvement is pervasive of -- it's the

16 State Land Planning Agency, there's no other

17 agency that one would look to that has the

18 requisite interest and the proper implementation

19 of this law. I mean, that's the point that I'm

20 making based on this statutory responsibilities,

21 that's the point I'm making based on the Apthorp

22 case as well, Your Honor.

23 And so, you know, I think that addresses the

24 argument that the DEC is not antagonistic enough

25 to be a proper defendant in this case. It surely

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(' 47 1 has the requisite interest in the proper

2 implementation of the growth management law. And

3 again, if you accept the argument that it doesn't,

4 then these challenges simply aren't going to be

5 brought. There won't be an opportunity for

6 somebody to challenge the statute if it's not DEC

7 because people can't bring these lawsuits anymore

8 because of the threat of the attorneys' fees

9 provision. And that's why we have alleged that it

10 violates First Amendment right because it

11 sanctions you for bringing a non -frivolous

12 meritorious case that you happen to lose.

13 THE COURT: Let's -- I know this goes to your

14 substantive due process argument, and I don't know

15 that I'm really here on that issue, but does that

16 argument, as to this fee -shifting statute, in your

17 opinion, apply to all fee -shifting statutes?

18 MR. GROSSO: No,I think this is a case

19 specific issue. I think it depends completely on

20 the -- the statutory scheme and the fact patterns

21 here. And to me, the salient distinguishing point

22 of this case is that the -- the statute itself

23 prevents people from bringing lawsuits. The

24 statute itself now prevents people who are

25 otherwise defined as adversely affected, because

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1 the developments can impact their community.

(1,482 But they are now muzzled, they are -- one

3 part of the statute that says we encourage you to

4 enforce comprehensive plans, now we've come in and

5 we've said, if you do, and you try and you lose --

6 and these can be close cases, these are complex --

7 this is a complex area of law. So if you try and

8 you fail to prevail, now you're hit with, you

9 know, the reality in these cases, Your Honor, is

10 hundreds of thousands of dollars of attorneys'

11 fees. That's why only the most well-off people or

12 entities are going to be able to exercise their

13 rights under this law, so that's why it's a First

14 Amendment violation. That's why the law is now

15 irrational. The law on one hand says, we can't do

16 smart planning and comply with our plans without

17 strong citizen enforcement. But if you try and

18 lose, then, you know, you're going to get hit with

19 fees.

20 So, you know, the law doesn't make sense.

21 And the entire program that DEC oversees that

22 requires the plans and then requires their

23 enforcement, the enforcement aspect is gone as a

24 result of this law,for all the wealthiest of

25 Florida citizens.

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49 (w 1 So that's why we're injured. That's why we

2 have standing. That's why there's an immediate

3 need for the Court to take jurisdiction over the

4 case and find that the law is -- is

5 unconstitutional.

6 Your Honor, before I move to my next

7 argument, you had said --

8 THE COURT: We were going to break. And I'm

9 going to take a break in a little less than 10

10 minutes. By my watch, it's 12 after 11:00. Why

11 don't we take a break until about 20 after. And I

12 know we started 10 minutes late, butI do want to

13 try to keep it to the hour and a half time limit.

14 MR. GROSSO: So you're telling meI have

15 about 10 minutes left when we come back.

16 THE COURT: Right. And then once we're

17 finished,I will want to take a break to, you

18 know, reflect on the arguments and make some notes

19 and things of that sort. So I'll see you back at

20 about 20 after. And if you're not back,I won't

21 start without you.

22 Okay. Thank you. I'll be right back.

23 (Brief recess.)

24 THE COURT: Okay. I'm back. All right. Can

25 everybody hear me? Okay. Let me make sureI have

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50 C 1 everyone's mic turned on. Turn on Ms. West's mic, 2 Mr. Little's, Mr. Grosso. Let's see. Sometimes

3 it takes a while for that to work. Mr. Arline's

4 is on. Let me click it again for Mr. Grosso. Is

5 Mr. Grosso -- is he -- okay. Mr. Grosso is back

6 on. There you are.

7 I think maybe your internet speed might be a

8 little low, which is -- because sometimes you

9 freeze in the frame. But I-- I've heard

10 everything you've said, so --I think I have

11 everyone on. So Mr. Grosso, go ahead.

12 MR. GROSSO: Thank you, Your Honor.

13 You know, let me -- let me address, because I

14 understand -- I know,I practice land use law, and

15 development order law is dense. It's hard to

16 understand.

17 Let me -- let me make another couple of

18 points. The idea that somebody who is a -- you

19 have to be about ready to challenge a specific

20 development order, that's the person in the

21 context of that case who can challenge this law.

22 You know, there's a strict 30 -day deadline,

23 somebody learns of a development order being

24 approved that they believe violates the plan, they

25 have a 30 -day deadline to file that. There simply

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" 51 1 is not the time to learn of the development order,

2 decide you're going to challenge it, allege that

3 in a declaratory judgment action, and then get to

4 a final appellate decision that the law -- this

5 law is unconstitutional.

6 It's not practical to -- those are the only

7 people who would be able to have standing to bring

8 a legal challenge to this aspect of this law. You

9 know, and we cited the Dade County Classroom

10 Teacher's Association case, which -- which I think

11 denied relief in that case,I acknowledge that.

12 But the Court is very clear, you know, the

13 courts are the last enforcer of constitutionally

14 protected duties. If the Legislature is not doing

15 that, that's when the courts should come in. It's

16 the responsibility of the courts to enforce

17 peoples' constitutional rights. That's what we're

18 asking for here.

19 The State argues the Francati case. That

20 case was dismissed because I'ls.Francati did not

21 allege that she had a negligence claim to bring

22 against anybody. She wasn't being harmed. She

23 had not suffered negligence. So her -- she had

24 rescinded to bring the law of facial challenge to

25 a lawsuit that limited who you could sue for

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52 C 1 nursing home negligence. It was no harm, no foul. 2 Kind of like the Apthorp case, there's been no

3 harm, no foul to anybody.

4 I think I misspoke earlier and said Apthorp

5 said DEC is the State Land Planning agency and the

6 appropriate defendant in these cases. It was

7 Atwater that said that. And Atwater (inaudible) a

8 proper defendant if you're the state official that

9 has an actual cognizable interest.

10 We think, because of the points I made to you

11 earlier, that DEC has an actual cognizable

12 interest.

13 You know, one thing I didn't mention earlier

14 was standing to challenge these comprehensive

15 plans is limited to people who have an interest

16 that are going to be affected, and I've cited the

17 statute, that is protected by the comprehensive

18 plan. It's DEO that determines the required

19 content of comprehensive plans which determines

20 the plans and plan amendments do or don't comply

21 with the requirements of the substantive

22 requirements of the statute is DEC that stands in

23 front of the Governor and Cabinet when there's a

24 case in front of them where they issue the

25 ultimate final order.

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53 (m, 1 So they determine what's in the plan which

2 then in turn limits what people like 1000 Friends

3 and their methbers and Mr. Howell can challenge in

4 a in a comprehensive plan.

5 And let me mention Mr. Howell. I don't

6 believe, Your Honor, that our amended complaint

7 reflects this. If you believe that the absence of

8 this allegation is -- requires dismissal of the

9 case, let me represent to you that Mr. Howell's

10 case is not over. Mr. Howell is facing in his

11 case that he dismissed a motion for attorneys'

12 fees filed by the defendant developer that is

13 explicitly based upon this law.

14 THE COURT: Well, he did do it before the

15 applicable date, effective date of the statute,

16 right?

17 MR. GROSSO: Yes. And I very much understand

18 that -- you know, the argument. And there's been

19 case law out there that suggests that -- that

20 attorneys' fees provisions are substantive, and

21 they cannot be applied retroactively. I very much

22 understand that law.

23 THE COURT: Yeah, you cited that in the memo,

24 actually, that I got yesterday or the day before.

25 Your memo, cited the L. Ross case versus R.W.

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54 C 1 Roberts. It says substantive rights as to 2 attorneys' fees, that's to accrue at the time

3 underlying cause of action accrues, and the

4 Legislature can't constitutionally increase an

5 existing obligating burden or penalty as to a set

6 of facts after those facts have occurred.

7 So it would seem to indicate that that

8 wouldn't -- the statute wouldn't apply to

9 Mr. Howell's case.

10 MR. GROSSO: I cannot disagree with that.

11 I I would agree with that. But here's the

12 situation that you're looking at. A plaintiff

13 comes to you, as an attorney, and says, I'm afraid

14 to bring this case because of the attorneys' fees

15 provision. And I can say, well, but the Ross case

16 tells us that attorneys' fees provisions have been

17 found to be not retroactive.

18 And, well, has this -- has a court ruled that

19 this particular attorneys' fee law is not

20 retroactive?

21 And I would have to say no.

22 And so you're forced with having to expose

23 yourself. Let's take a shot, let's take the

24 chance that the courts will apply the Ross case,

25 and we won't be subject to attorneys' fees, and I

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55 C 1 think as a practical matter, Your Honor, clients 2 are saying, you're asking me, counselor, to take a

3 big risk. What if we lose that argument? What if

4 the court finds this law is different than the one

5 in Ross?

6 SoI get it. I would argue Ross. But

7 there's uncertainty there. That's a big concern,

8 and the chilling effect that this law is having on

9 the kind of clients that members of 1000 Friends

10 of Florida, people like Mr. Howell.

11 ButI did want to bring to the Court's

12 attention, he is facing -- despite the Ross case,

C13 he's looking at a motion for fees. And we

14 would -- we would ask the Court to take judicial

15 notice ore tenus. We haven't put that in writing.

16 I haven't made a formal motion.

17 THE COURT: But Mr. Howell -- the amendment

18 would be that Mr. Howell dismissed this case, but

19 there's still -- the defendant -- the public

20 entity in that case is seeking fees?

21 MR. GROSSO: It's actually,I believe the

22 developer who received the development order who

23 is also a defendant.

24 And that's an important thing to understand

25 about this law, Your Honor, when a plaintiff

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56 C 1 brings a development order challenge, the cause of 2 action is against the local government. That's

3 clear on the statute.

4 But the -- the person who got the development

5 approval, the developer, they are routinely

6 authorized to intervene. They are obviously

7 interested.

8 And so what a plaintiff is looking at is not

9 just the City or the County attorneys' fees, but,

10 you know, the market rate fees for the private law

11 firm that's representing the developer and this is

12 a specialized area of law, these fees are steep.

13 And that is just categorically -- prevents you

14 from bringing them, unless you are extremely

15 wealthy from using this law.

16 THE COURT: I don't see why a developer who

17 intervened in the case would have a right to fees?

18 They interjected themselves into the case.

19 MR. GROSSO: I think you've raised a really

20 valid issue. And I would --I would argue that.

21 But that is not at all clear. I definitely think

22 there's an argument to be made that you put

23 yourself there, you voluntarily intervened. You

24 could see a counterargument that I--I think

25 you're right. I would argue that. The point I

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57 (w 1 would make is that is not at all clear. There's

2 been no cases that have interpreted the statute

3 from that perspective, so --

4 THE COURT: The statute is in contravention

5 of common law as fee -shifting orders are,

6 therefore, it would be strictly construed,

7 wouldn't it?

8 MR. GROSSO: Your Honor, that's what I would

9 argue. And I--I agree with your instincts on

10 that. I would argue that. I think that that's

11 right. But just as a practical matter, you know,

12 if I'm a(inaudible) attorney, for me to look a

13 potential plaintiff, 1000 Friends in the eye and (liii, 14 say, you can rely on my judgment that that's how

15 the courts would ultimately rule, boy, that's just

16 a heck of a chance to take. You're looking at

17 six -figure attorneys' fees to get to the point

18 where you might get an appellate court to agree

19 with what you're saying and what I agree. And

20 that's the problem, it's just the uncertainty

21 there.

22 So, you know, that's whatI would say about

23 that. ButI wanted to make clear that you knew

24 what the complete facts were for Mr. Howell, even

25 though --

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58 (w 1 THE COURT: So if -- if I -- do you have any

2 other facts that if you had the opportunity, that

3 you need to put in there that you have not put in

4 to address the arguments that we've heard today?

5 MR. GROSSO: In terms of facts, no. And on

6 the ultimate facts, we have pled -- other than

7 what Ijust mentioned to you, we have pled all the

8 ultimate facts that the Court needs to make a

9 ruling in this case, on substantive due process,

10 on First Amendment. 1000 Friends is the

11 organization -- the organization who is

12 established to (inaudible) this law. There's a

13 Nassau County case that DEO cites to you. And

14 1000 Friends is exactly the same type of

15 organization that was found in the Nassau County

16 case to have standing because it was formed to

17 enforce a land use plan and protections in its

18 community and represent its members. In the act

19 of doing that, that's exactly the nature of --

20 THE COURT: Was it -- was it the (inaudible)

21 to give a very broad standing to groups such as

22 the plaintiff in this case?

23 MR. GROSSO: The 3215 statute has been

24 interpreted to grant liberalized standing. That's

25 one of points I was making to you earlier, that

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" 59 1 the courts have said that -- that reflects the

2 legislative intent of strict compliance. You have

3 to have enforcement otherwise the statute doesn't

4 work. And so that is pretty important there.

5 ButI understand that common law, standing

6 law applies to your decision here. But

7 nevertheless, that is a very relevant

8 consideration here.

9 And I'll speak to the Woman's Emergency

10 Network v. Bush case that the State cited there.

11 Again, these standing cases are so fact

12 specific, Your Honor, and that --

13 THE COURT: Yeah.

14 MR. GROSSO: -- in that case, standing --

15 standing was denied because they're arguing our

16 First Amendment rights are violated when you let

17 the (inaudible) and the Court said, well, no, your

18 First Amendment rights would only be violated if

19 you asked to have a(inaudible) with a contrary

20 message, and you were denied. You haven't done

21 that. That's why there was no standing in that

22 case.

23 And let me also point, that case has been

24 cited for the proposition that the Governor is not

25 a proper defendant in constitutional suits, and by

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60 " 1 extension, the Secretary of State is not.

2 But in that case, Your Honor, there was

3 still, after the Court said, we're dismissing the

4 Governor, the Executive Director of the Department

5 of Highway Safety and Hotor Vehicles was --

6 remained as a defendant. There was a defendant

7 remaining in that suit. And I think that's

8 different.

9 If you -- if you grant both motions to

10 dismiss, you're saying there's no recourse.

11 There's no state player that has even any interest

12 in this enough to defend, at least as that would

13 apply to the Department of Economic Opportunity,

14 for all the reasons I've explained, that -- that

15 that leaves us with constitutional violation

16 that's happening every day that is going to be not

17 addressed at all.

18 You know, when 1000 Friends of Florida the

19 organization created to enforce this law that has

20 expertise and experience, and it comes and alleges

21 that this law is simply not going to be enforced

22 anymore because of the impact of the bill that we

23 believe is unconstitutional,I think that case is

24 right, where the State cites U.S. Supreme Court

25 case for controversy standing cases, certainly we

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61 (w 1 have a standing law, and the Q Line case and

2 others, we talked about that. But, you know, we

3 have a standing doctrine in Florida, but it's not

4 as rigid as it is at the federal level, the Hayes

5 versus -- the Hayes case cited by the State.

6 That is,if you reasonably expected to be

7 affected directly or indirectly, you've got

8 standing. Standing depends on the nature of the

9 interest asserted. That's the Hayes case. And I

10 would submit to you, based on the things -- points

11 I've been making, about this law and the

12 plaintiff's relationship to it, they've got

13 standing here.

14 So, just a few remaining points, ifI may,

15 Your Honor. I think I had addressed everything

16 that you -- oh, the failure to state a cause of

17 action for injunctive or declaratory relief.

18 Your Honor, the -- Chapter 86 only has these

19 three subsections. It's pretty clear that the

20 Subsection we would rely on is 86.021. There's

21 only three material substantive subsections of

22 that statute. It's 86.021 that any person

23 affected by the State statute can determine the

24 validity of the statute. That's what we're

25 traveling under. It's pretty apparent that that's

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62 C 1 the one that would apply here.

2 86.061 authorizes the Court to grant

3 supplemental relief to a declaratory judgment.

4 The courts have inherent authority to grant

5 injunctive relief. There's no, I think, failure

6 of pleading that relates to either declaratory

7 relief or injunctive relief.

8 I've explained to you the imperative and the

9 reason why it's important. There's a need for

10 that right now.

11 The State cites Chapter 60. There's a

12 handful of subsections in Chapter 60 that are

13 (inaudible) . There's no case that says the

14 pleading as the exclusive list of situations in

15 which courts can grant injunctive relief. Those

16 are situations that the Legislature has

17 specifically said there's authority to grant

18 injunctive relief, but there's nothing in the law

19 that has changed, as if it could. The Court's

20 inherent authority to grant injunctive relief,

21 certainly the provisions of Chapter 86 that I just

22 mentioned would authorize that. 86.061,

23 supplemental relief.

24 And the last thing I would just leave you

25 with, and Your Honor, is, you know, the statute

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63 C 1 does say, 86.101, it's to afford relief from

2 insecurity and uncertainty. It should be

3 liberally administered. Chiles v.Children tells

4 us that the purpose of the act to relieve

5 litigants of the common law rule that no

6 declaration of rights can be adjudged until a

7 right has already been violated. And the purpose

8 is to serve as an instrument of preventative

9 justice.

10 Your Honor, that is exactly what we're asking

11 you to do, acknowledging some of the cases that

12 have looked at that more strictly than in the

13 case -- in the situation, the fact -based situation

14 of this particular statute, and how it, on one

15 hand, says that our statutory scheme can't work

16 unless it's enforced. But now we've got a

17 provision that essentially precludes its

18 enforcement. I think that justice is done as

19 required and take jurisdiction of this case and

20 declare the law unconstitutional.

21 I really appreciate the extensive time you've

22 given me to explain this case to you. And I'm

23 happy to answer any questions.

24 Thank you, Your Honor.

25 THE COURT: Thank you very much.

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' 64 1 Mr. Buckles, do you have any brief remarks?

2 MR. BUCKLES: Yes, can you hear me, Your

3 Honor?

4 THE COURT: Yes, I can.

5 MR. BUCKLES: Okay. We are looking for a

6 dismissal of the amended complaint with prejudice.

7 We think the law supports that position. With

8 regard to the level of statements on (inaudible)

9 declaratory judgment and injunctive relief, we

10 think they are deficient, they are nonspecific.

11 I would draw the Court's attention to the

12 Francati case. The first inquiry is whether a

13 state official is charged with enforcing the

14 statute. DEO, the executive director of the

15 Florida Department of Opportunity is not mentioned

16 anywhere in that statute.

17 The Legislature could easily have put us in

18 there if they wanted to, but they did not. Our

19 actions are limited to specific grants of

20 authority, and there's nothing in there regarding

21 DEO in 163.3215.

22 I agree with the statement of the attorney

23 for the Department of State. Regardless of

24 whether it's a facial or os-applied challenge,

25 there still needs to be a case or a controversy.

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65 'w 1 The facial or as -applied discussion, that's a

2 distinction without a difference.

3 I would direct the Court's attention to the

4 lead case in our brief, the State of Florida v.

5 Florida Consumer Action Network where the First

6 DCA specifically, specifically rejected the

7 ripening seeds of controversy theory. I think

8 that's an important case. That's why we put it

9 first in our brief.

10 And as to the Atwater case,I would just make

11 a couple of points.

12 First, the language concerning the Department

13 of Community Affairs, the predecessor agency to

14 DEC,is Dicta. The Department of Community

15 Affairs was not a party to that case, and the

16 court's hypothesizing there that DCA might have

17 been a proper party to bring suit against Dicta.

18 The underlying bill challenged in Atwater

19 actually included provisions DEC was charged with

20 enforcing the work grants of authority from the

21 Legislature there. The bill in the Atwater case

22 concerned numerous other sections, 163.3184, which

23 DEC had a role in.

24 So by contrast, the plaintiff's present

25 complaint alleges a constitutional infirmity

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1 regarding 163.3215, and DEO does not have a role

2 in enforcing that.

3 So with that,I would conclude my case and

4 draw the Court's attention to the brief.

5 THE COURT: All right. Thank you.

6 Ms. Ashley Davis, any other remarks from you?

7 MS. ASHLEY DAVIS: Thank you, Your Honor.

8 It sounds like from plaintiff's argument,

9 that there are plenty of other defendants other

10 than the secretary or even DEO to defend the

11 constitutionality of the attorney fee provision,

12 which the Secretary certainly doesn't enforce.

13 The plaintiffs raised the exact circumstance

14 that would be ripened against the proper

15 defendant. That would be a local land owner

16 against a local government to enforce the

17 comprehensive plan where there was at least an

18 alleged local law that conflicted with it.

19 At the outset, the Court could determine the

20 constitutionality of the fee provision without

21 substantial fees being accrued. ButI think this

22 is probably far afield from what the Secretary

23 needs to argue.

24 Plaintiffs are no longer seeking expungement;

25 rather they are only seeking a declaratory and

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67 (p- 1 injunctive relief (inaudible) the provision, the

2 attorney fee provision unconstitutional and

3 enjoining its enforcement. There is, therefore,

4 no relief that the Secretary can even allegedly

5 provide here. She lacks the enforcement

6 authority. There is no broad constitutional

7 degree, let alone one that implicates her specific

8 responsibilities. She doesn't have any adverse

9 interests, and therefore, we would ask that the

10 Court grant her motion to dismiss with prejudice.

11 Thank you so much.

12 THE COURT: Okay. Thank you. I took some

13 time in that break to try to put my thoughts

14 together subject to further arguments that I would

15 hear when Icame back.

16 So in light of the hour,I think I'll go

17 ahead and give you an oral ruling, and then I'll

18 ask the prevailing counsel to draft an order.

19 As to the Secretary of State's motion, I'm

20 going to grant its motion to dismiss with

21 prejudice, because I've heard nothing, no

22 indication that the complaint could be amended as

23 to the Secretary's position. So I believe an

24 amendment would be futile.

25 The basis of that is,A, the single subject

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" 68 1 argument appears to have been withdrawn from the

2 case. And the Secretary doesn't have any

3 enforcement role in the statute. I don't think

4 the Secretary's role of quote, unquote, striking

5 the statute is sufficient under the most recent

6 case law to -- to keep the Secretary in the case

7 under circumstances such as in this case.

8 And I would note that in theAtwater versus

9 City of Westoncase, the Secretary of State was

10 stricken and removed in that case, because the

11 Secretary of State does not enforce Florida's

12 growth management laws.

13 So Judge Marstiller, Van Nortwick and Thomas

14 were the judges on that case. And they cited in

15 that case what's really the --I guess the central

16 issue in considering who are proper defendants.

17 And that is in challenging constitutionality of

18 statute is the official designated to enforce the

19 statute.

20 As Ms. Ashley Davis said in her motion and

21 memo, there are some limited circumstances where

22 one can be a proper defendant, if that's not the

23 case, butI don't see those here.

24 I recognize there -- so therefore, I -- for

25 the reasons stated by Ms. Ashley Davis in her

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69 (w 1 motion and in her arguments today,I grant her

2 motion to dismiss with prejudice.

3 I recognize -- as to the other motion, I

4 recognize that there actually is,at least in my

5 mind,a -- a benefit of when you have all the

6 people involved to getting something taken care

7 of, and -- and resolved now, rather than later, in

8 fact,I believe Ms. Davis heard that from me

9 probably in the case Igot reversed on, that she

10 handled, involving the -- is it Apthorp,

11 Ms. Davis? I think it's the Apthorp case.

12 I probably articulated that exact same

13 argument there. We're all here together, why

14 don't we go ahead and cite it now, since this is a

15 matter of great public interest.

16 ThatI can tell you is not the law in

17 Florida, even though Iat one time thought that

18 might be a good way for the law to go. It's not

19 up to me to tell the appellate courts where the

20 law should go or what should be different. It's

21 up to them to tell me what the law is from their

22 standpoint, and I'm expected to follow it because

23 that's my job.

24 So with that being the case, I've not heard

25 anything in this case with respect to the other

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70 'V 1 motion in which an amendment to the complaint

2 would change the outcome of my ruling.

3 Mr. Howell's proposed amendment that the

4 party in his case may be seeking attorneys' fees

5 in that case,I don't think changes the case law

6 that I've referenced in the argument.

7 It appears to me that the fee -shifting

8 statute is not retroactive. It's prospective

9 only. And untilI see a Court decision otherwise,

10 I'm going to agree with the Court decision, I

11 think, cited by both the Department and by the

12 plaintiff in the oneI referenced earlier in the

13 case.

14 I agree with the Department on several

15 points. AsI understand the case law, this goes

16 all the way back to the --I think it's the 1954

17 or 50 -something Florida Supreme Court case that

18 talks about elements for dec actions. Is it the

19 May case? I'm just going from memory. Ms. Davis?

20 MS. ASHLEY DAVIS: Yes, the May v. Holley

21 case?

22 THE COURT: Yes, May v. Holley case.

23 I think it -- that's not current law, it's

24 justI think appellate courts have interpreted

25 that case in different ways depending on the

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71 (w 1 circumstances. But it seems to me the clear --

2 clear state of the law as it relates to the First

3 District Court of Appeal, with which I'm bound by,

4 is that in this case,I don't see the DEO as being

5 the proper party defendant because as it relates

6 to this statute,I don't -- I've not heard

7 articulated to me any enforcement functions that

8 the Department has related to this statute or this

9 issue.

10 It seems to me, Ms. Davis mentions pther

11 potential defendants, and I think perhaps one of

12 the reasons is,is because that's the question she

13 always gets from me,if not the Secretary of

14 State, then who? Because I don't believe the

15 catch -22 argument is a good argument, it's not us

16 but I'm not going to tell you who it could be.

17 And Ms. Davis does not do that, and Ido think

18 that the proper party defendant would be a local

19 government entity who has issued a development

20 order. And in fact, there might be something to

21 say that perhaps local government entity, at least

22 one or a representative party might almost be an

23 indispensable party. But I'm not going to go that

24 far because that issue has not been raised.

25 ButI think there are legitimate

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(' 72 1 circumstances in which this constitutionality of

2 the statute can be raised.

3 I think the single subject portion of the

4 case is moot, soI wouldn't dismiss that portion

5 there.

6 I also agree that there is a -- there's not a

7 justiciable controversy presented here, and I

8 don't believe that an amendment to the complaint

9 could change that, based on the argument and what

10 I've read in the case.

11 I don't think there's standing. I don't

12 think the DEO is the proper party. And a lot of

13 these divisions in the defendants' memo sort of

14 overlap each other. And if there's no standing or

15 no justiciable controversy, or the DEO is not the

16 proper party, of course it goes without saying

17 that no cause of action has been stated.

18 SoI don't think I really even need to get to

19 the cause of action issues, particularly as to the

20 matter of pleading ultimate facts, because that's

21 not going to change the ultimate outcome. I think

22 the ultimate issue of this case, which needs to be

23 cited by the First District as soon as possible,

24 in my opinion, is whether this is the justiciable

25 controversy, whether the DEO is the proper entity,

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73 C 1 and these other issues in which at this point, I'm

2 ruling in favor of the DEO instead of the

3 plaintiff.

4 So I'm going to grant the DEC's motion with

5 prejudice along the lines as I've indicated in the

6 argument. I'll ask the attorneys to -- for the

7 Secretary of State and DEO to draft the respective

8 orders. The only thing I would suggest, I'm not

9 asking Ms. Davis to work on drafting the DEO's

10 order, but the parties need to ensure that it's

11 consistent -- that the two orders are consistent

12 with my comments.

13 Obviously,I want you to send the order to

14 the parties representing the plaintiffs to see if

15 they agree or disagree with the language as it

16 being -- is it an accurate reflection of the

17 ruling. If not, let me know and I'll give the

18 plaintiffs five days after they have decided they

19 can't agree upon the defendants' order, to send me

20 a proposed order. If you need more than that,

21 send me a motion on that and I'll be glad to give

22 you whatever time you need,if you wish to do

23 that.

24 AsI say --I try to say this in every

25 instance, it's important, especially those of you

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74 C 1 who have paralegals who send stuff out and you

2 don't look at it, make sure that when you send

3 something to me, you send it to the other side,

4 all the other parties. And that you note on

5 whatever transmittal e-mail or letter that you

6 are,in fact, sending it to the other sides.

7 Because if you don't, then I have to check to see

8 well, what does the other side say about this? Do

9 they agree or do they disagree with it? And it

10 just makes everything a lot quicker if you do

11 that. And I don't have any reason to believe that

12 those of you would not do it. Sometimes lawyers

13 understand better the importance of this

14 communication technique than nonlawyers do.

15 I would like to thank all the lawyers for

16 doing an excellent job, both in briefing and in

17 presentation. You make very good arguments. I

18 believe -- Mr. Grosso, as you know, and I think

19 you took from my arguments, I feltI was

20 interpreting the case in controversy, the

21 justiciable controversy case law in the -- in the

22 Apthorp case correctly. The First District

23 decided I did not, so therefore, I'm going to take

24 their interpretation of that, not what I thought

25 in that case. And that's the whole purpose, the

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75 C 1 reason we have appellate courts. It's my 2 function, ifI have clear direction from an

3 appellate court, to follow that. IfI don't have

4 clear direction,I try to determine what the Court

5 wants me to do. Sometimes Ilike to think I'm

6 right more times than I'm wrong, butI don't have

7 a -- I'm not batting a thousand on this. But I

8 have a decent batting average, but it's not a

9 thousand, soI take no objection Ms. Davis' appeal

10 being multiple time. I take no objection to

11 people appealing. That's part of the system we

12 work in. SoI would assume that the plaintiffs in

13 this case will appeal this and will present the

14 same cogent judicial arguments to the First

15 District, and we'll see what their thoughts are on

16 the -- the matter.

17 So with that,I would suggest that to the

18 parties drafting the order, you make it clear that

19 this is a dispositive order, whether you call it

20 final judgment or not. You want to make sure that

21 the First District doesn't have any doubt that the

22 case is disposed of on this order.

23 And you -all know, who do appellate work, that

24 that's kind of a term of art sometimes in

25 drafting.

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76 C 1 I suspect if you'd say "with prejudice, the

2 case is dismissed," that's probably enough. But

3 sometimes Iget back orders from the First

4 District saying that you need to be a little bit

5 more specific that the case is over. So I know

6 you -all will do that and are experienced in that.

7 So other than that,I look forward to seeing

8 your orders.

9 Counsel, you can all send those orders to me

10 in e-mail, if you wish. And that way Ican modify

11 them, if I wish to,or edit. And then Ican serve

12 you back --I can e -serve you. If you wish to

13 file those proposed orders with the clerk,I have

14 no problem with that, if you wish to make that

15 part of the record. But the best way to get it to

16 me is to e-mail to my judicial assistant, because

17 Ido not have a list or a cue of pending filings

18 in cases thatI have. SoI won't know that you've

19 sent it unless you e-mail it to me.

20 So thank you so much. And good luck to all

21 of you. And you are starting to make me a

22 believer in Zoom hearings at least for the next

23 few months. I prefer everyone in the courtroom,

24 but that's not the safe thing to do at the present

25 time. So thank you everyone, and good luck to all

FOR THE RECORD REPORTING TALLAHASSEE FLORIDA 850.222.5491

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10001000 FRIENDSFRIENDS OFOF FLORIDAFLORIDA INC vs.vs. LAUREL LAUREL MM LEELEE LT. CASECASE NO: 2019 CA 002215 HT. CASECASE NO:NO: 1D20-21351D20-2135

77 C 1 sides on this case.

2 MR. GROSSO: I appreciate all your time this

3 morning, Your Honor.

4 MS. ASHLEY DAVIS: Thank you, Your Honor.

5 MR. BUCKLES: Thank you so much.

6 THE COURT: I appreciate the court reporter

7 sticking with us, too.

8 THE COURT REPORTER: Thank you. You're

9 welcome.

10 (Whereupon, the proceedings were concluded at

11 12:00 p.m.)

12 C

FOR THE RECORD REPORTING TALLAHASSEE FLORIDA 850.222.5491

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10001000 FRIENDSFRIENDS OF FLORIDA INC vs. LAUREL M LEELEE LT. CASE NO: 2019 CACA 002215002215 HT. CASE NO: 1D20-21351D20-2135

78 C 1 CERTIFICATE OF REPORTER

3 STATE OF FLORIDA)

4 COUNTY OF LEON)

6 I, JESSICA RENCHEN, Registered Professional Court

7 Reporter, State of Florida at Large, certify that I

8 was authorized to and did stenographically report the

9 foregoing proceedings and that the transcript is a

10 true and complete record of my stenographic notes.

12 Dated this 3rd day of June, 2020.

16 JESSICA RENCHEN, Court Reporter 17

FOR THE RECORD REPORTING TALLAHASSEE FLORIDA 850.222.5491

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10001000 FRIENDSFRIENDS OF FLORIDA INC vs. LAUREL M LEELEE LT. CASE NO: 2019 CACA 002215002215 HT. CASE NO: 1D20-21351D20-2135

CERTIFICATE OF CLERK

STATE OF FLORIDA

COUNTY OF LEON

I, Gwen Marshall, Clerk of the Circuit Court for the County of Leon, State of Florida, do hereby certify that the foregoing pages of the inclusive contain the record of the judgment in the case of1000 Friends of Florida, Inc. and Robert J. Howell vs The State of Florida, Laurel M. Lee, in her Official

Capacity as Secretary of State of Florida, and Ken Lawson, in his Official Capacity as the Executive Director of the Florida

Department etc.and is a true and correct recital of all such papers and proceedings in said cause as appears in the records and files in my office that have been directed to be included in said record pursuant to the Florida Rules of Appellate Procedure.

In Witness Whereof, I have hereunto set my hand and affixed the Seal of said

Court this 27TH day of AUGUST, 2020.

GWEN MARSHALL CLERK & COMPTROLLER LEON COUNTY, FLORIDA

BY: LiNDA J. THOMPSON Linda J. Thompson, Deputy Clerk

254