Legal Report, July 2012
1. City of Palm Bay vs. Wells Fargo Bank, N.A.,
Case Number SC11-830. Superiority of Code Enforcement Liens.
Question was certified to the Supreme Court as to whether under Article VIII, Section 2(b), FL. Const, Section 166.021, F.S. and Cp. 162, F.S. a municipality has the authority to enact an ordinance stating that its code enforcement liens, created pursuant to a code enforcement order and recorded in the public records are superior in dignity to prior recorded mortgages. The Fifth (5th) District Court of Appeal ruled that although municipalities have broad home rule powers, they may not enact ordinances that conflict with state statutes. Florida Statues provide that recorded instruments with a lower register number (i.e. recorded earlier) will have priority over one with a higher number (recorded later). Thus, the 5th DCA found that the ordinance enacted by Palm Bay granting its code enforcement lien superiority over all liens except taxes was in violation of state law and was therefore invalid. Oral argument was held before the Florida Supreme Court on April 11, 2012. No order has been issued to date.
2. City of Orlando and Lasercraft, Inc. vs. Michael Udowychenko, etc.,
Case Number 5D11-720. Red Light Cameras.
The Fifth (5th) District Court of Appeals affirmed the trial court’s ruling against the City of Orlando stating that local enforcement of traffic signal violations by cameras is preempted by state law. This decision conflicts with the Third (3rd) District Court of Appeals’ opinion in City of Aventura vs. Masone, Case Number 2011WL5964359 (Fla. App. 3 Dist.) which upheld Aventura’s red light camera ordinance. Conflict between the City of Aventura and City of Orlando cases has been certified to the Supreme Court.
*Note: These cases only apply to those red light camera ordinances in effect prior to the enactment of the state law on this subject.
3. Town of Gulf Stream et al vs. Palm Beach County, and Sharon R. Bock, as Clerk
and Comptroller of Palm Beach County, Intervenor
Case Number 502011CA017953XXXXMB. Inspector General Funding Lawsuit.
Complaint for declaratory relief was filed on November 14, 2011 by fifteen (15) municipalities challenging the method of funding the Inspector General program. The Village of Wellington withdrew on April 12, 2012. The Ch.164 dispute resolution process was followed by the parties and an amended ordinance was submitted to the County after a joint drafting effort was undertaken by representatives from both the County and the cities in an attempt to amicably settle the case. The amendments proposed by means of the joint effort were unanimously rejected by the Board of County Commissioners of Palm Beach County. A formal Mediation was held on May 18, 2012 with Mediator, Steven A. Mayans in accordance with the mandates set forth in Cp.164, F.S. Such mediation resulted in impasse and the previous abatement was lifted to allow the matter to proceed to court. On June 7, 2012 the Inspector General filed a Motion to Intervene. This motion was opposed by the County, the cities and the Clerk of the Courts on several grounds. A hearing on the matter was scheduled for Friday July 6, 2012 but was cancelled due to the Order of Disqualification entered by the assigned Judge, Sandra K. McSorley. The Honorable Catherine Brunson has now been assigned to this case.
4. Palm Beach County Commission on Ethics: Recent Advisory opinions.
- a. RQO 12-034: The COE held that credit card rewards points received by a government official or employee for booking a hotel stay are not a special financial benefit to that official or employee so long as the rewards points program is offered to the general public. For these same reasons, the rewards points are not reportable gifts. The rewards points also are not reportable gifts if they are given in exchange for picking a particular hotel. Under these circumstances, the rewards points are, in essence, consideration for choosing a particular hotel.
- b. RQO 12-036: The COE held that a spouse or other family member’s stay in a hotel room with a public employee for free does not constitute a prohibited special financial benefit to the spouse or family member not shared by similarly situated members of the general public so long as the hotel does not charge extra for the spouse or family member to be in the room. For example, if the hotel charges extra for double occupancy versus single occupancy, then the spouse needs to pay for their share of the room. The COE also held that a spouse’s sharing in a complimentary hotel stay is not a prohibited gift so long as there is no additional benefit to the spouse (i.e. no extra fees for double occupancy or no upgrades to accommodate additional person).
- c. RQO 12-037: The COE held that a gift received by a spouse is not an indirect gift to the public official or employee so long as there is no nexus or relationship between the gift being given and the public employment. The COE has adopted the Florida Administrative Code’s criteria for determining whether a gift is an indirect gift to a public official or employee. The COE has also added additional criteria, which are indicative of indirect gifts.