Legal Report, February 2016

General Counsel, Jennifer G. Ashton

1. Lake Shore Hospital Authority v. Lilker, 168 So. 3d 332 (Fla. 1st DCA 2015). Unreasonable Restrictions on Access to Public Records.

The First District Court of Appeal found that the Lake Shore Hospital Authority had violated the Public Records Act by placing unreasonable restrictions on a patient’s access to public records in the hospital’s custody.  Specifically, the Court found the hospital inappropriately referred the patient to a website in response to the records request.  The Court held that referring the patient to the website would have been appropriate if the patient had requested electronic access, but the patient did not request electronic access.  The patient had specifically requested paper copies of the records.  Additionally, the Court found that the hospital inappropriately restricted the patient’s right to inspect and copy public records to one hour per day, Monday through Friday, with 24-hour notice.  The Court held that while a records custodian may reasonably restrict inspection to those hours during which his or her office is open to the public, the hospital took it too far.  Moreover, the Court held “there is no authority allowing [the hospital] to automatically delay production of records for inspection by imposing a 24-hour notice requirement.”  The Public Records Act authorizes inspection and copying of public records at “any reasonable time.”

2. Key Biscayne Gateway Partners, Ltd. V. Village of Key Biscayne, 172 So. 3d 499 (Fla. 3rd DCA 2015). Forcing Approval of a Site Plan.

A developer sought a writ of mandamus in order to compel the Village Council of the Village of Key Biscayne to approve a proposed site plan.  The complaint for the writ of mandamus was based upon allegations of misconduct by the Village and Village Council.  The Third District Court of Appeal affirmed the trial court’s dismissal of the case.  In doing so, the Court held that mandamus will lie only to command the performance of a ministerial act.  A ministerial act is one where there is no room for the exercise of discretion, and where the public official’s performance is required by law.  Under the Village’s ordinance, the Village Council’s approval of a site plan is not a ministerial act.  Instead, the Village Council approves a site plan by vote after a quasi-judicial public hearing concerning whether certain criteria are met.  In these circumstances, mandamus would be inappropriate because site plan approval involves quasi-judicial fact-finding and quasi-judicial decision-making.

3. Caribbean Condominium, et al. v. City of Flagler Beach, 178 So. 3d 426 (Fla. 5th DCA 2015). Attorney’s Fees and Costs in an Inverse Condemnation/ Bert J. Harris Private Property Rights Protection Act Lawsuit.

The City of Flagler Beach filed a motion for attorney’s fees and costs after prevailing in a landowner’s action for inverse condemnation and seeking relief under the Bert J. Harris Act.  The trial court awarded attorney’s fees and costs to the City with respect to the Bert J. Harris Act claims, but declined to award costs for defending against the claim for inverse condemnation because no taking occurred.  The trial court reasoned that under the eminent domain statutes, a party only was entitled to costs when a taking was found to have occurred.  The Fifth District Court of Appeal affirmed the trial court’s order with respect to the award of attorney’s fees and costs for the Bert J. Harris claim, but reversed with respect to the failure to award costs to the City for the inverse condemnation claim.  The Court held that the statute generally governing the recovery of costs from the losing party in civil actions applied, and therefore, the City was entitled to an award of costs for successfully defending against the inverse condemnation claim.

4. Florida Supreme Court Gives PACE Green Light.

In October 2015, the Florida Supreme Court favorably resolved (dismissed litigation based on lack of standing) the final two Property Assessed Clean Energy (“PACE”) bond validation appeals before the Court.  In 2014, a total of five bond validation proceedings were appealed to the Court questioning the validity of various aspects of the PACE program in Florida.  PACE is a statutorily created program (Section 163.08, F.S.) that allows a local government to finance energy efficiency, renewable energy and wind mitigation improvements on private property through a voluntary non-ad valorem assessment attached to said property and repaid through the property owner’s annual tax bill.  With this most recent ruling, PACE programs have the green light to move forward throughout the State of Florida.