Legal Report, August 2021

General Counsel, Keith Davis

1. City of St. Petersburg v. Dorchester Holdings, LLC, 2021 Fla. App. LEXIS 11003, (Fla. 2d DCA 2021). Public records law; special service charges.
This case stems from a dispute between the City of St. Petersburg (“City”) and Dorchester Holdings, Inc. (“Dorchester”). During discovery in a breach of contract lawsuit between the parties, Dorchester’s counsel made an expansive public records request to the City. The records request was eventually narrowed 146,246 emails, and the City Clerk advised that the estimated total cost to review and produce the requested emails would be approximately $27,555.03, including a $6,154.95 advance payment. Dorchester’s counsel protested the cost estimate, and thereafter filed suit against the City to remedy what they saw as an unlawful refusal to permit inspection of public records.

The trial court found for Dorchester, stating that the City’s cost estimate of $27,555.03 was unreasonable under the Public Records Act. On appeal, however, the Second District Court of Appeals (“DCA”) reversed and remanded the decision back to the lower court. In its decision, the Second DCA noted that the Public Records Act requires public records custodians to determine whether the requested records exist, locate the records, and review each record to determine if any of those records are exempt from production. Further, if the nature or volume of the requested records requires the extensive use of information technology resources or clerical or supervisory assistance, the Public Records Act permits the agency to charge a special service charge to cover these costs, and the City's preliminary estimate regarding this charge must be paid in advance. Here, the Second DCA found no “reasonable basis” in either Dorchester’s arguments or in the trial court’s order to support the conclusion that the City’s cost estimate to review 146,246 emails was unreasonable under state law or the City’s own public records policy. This case reaffirms that Florida’s Public Records law allows municipalities to assess a reasonable service charge for burdensome, discovery-type requests, with “reasonableness” construed under the municipality’s administrative policy as well as state law.

2. Mojito Splash, LLC v. City of Holmes Beach, 2021 Fla. App. LEXIS 11481 (Fla. 2d DCA 2021) Bert Harris Act; Comprehensive plan amendments.
In 2009, the City of Holmes Beach (“City”) adopted a Comprehensive Plan Amendment to allow vacation rentals in its R-2 Zoning District under a limited occupancy of 6 persons or 2 persons per bedroom, whichever is greater. In 2013, Mojito Splash, LLC (“Mojito”) purchased a 5-bedroom property in the City’s R-2 Zoning District with the intent to establish a vacation rental property capable of hosting up to 12 overnight guests, thus exceeding the property’s maximum of 10 guests under the Comprehensive Plan Amendment. In 2015 and 2016, the City adopted subsequent land development regulations and enforcement measures via ordinance to implement the 2009 Amendment occupancy limits for vacation rentals (“implementing ordinances”). Following adoption, Mojito filed a Bert Harris Act claim, arguing that the City’s implementing ordinances permanently deprived Mojito’s "existing use" of the property, specifically the right to rent the property to an unregulated number of guests. The trial court entered summary judgment in favor of the City finding that while Mojito did have the right to an “existing use” of the property as a vacation rental, the City’s implementing ordinances did not result in an “inordinate burden” under the Bert Harris Act. Mojito appealed.

On appeal, the Second DCA affirmed the trial court’s decision for the City, but on different grounds. The Second DCA found that the trial court erred in finding that Mojito had an “existing use” under the Bert Harris Act. The Second DCA reasoned that the first ordinance to affect Mojito’s “existing use” was not either of the implementing ordinances, but the original ordinance amending the City’s Comprehensive Plan in 2009. Although the 2009 ordinance was not readily enforceable, it still had a legally binding effect on Mojito’s property with respect to occupancy limits. Thus, when Mojito purchased the property in 2013, its intent to use the property as a 12-guest vacation rental was already prohibited by the City's Comprehensive Plan and therefore not an “existing use” under the Bert Harris Act. This case establishes that a municipality’s Comprehensive Plan Amendment, not its implementing ordinances, constitutes the specific government action that may or may not interfere with a landowner’s “existing use” under the Bert Harris Act.