Legal Report, January 2013
General Counsel, Trela J. White
1.
RLI Live Oak LLC v. South Florida Water Management District Case Number SC12-2336.
New Heightened Evidentiary Burden To Enforce Regulatory Programs Through
Monetary Penalties.
The South Florida Water Management District exercises regulatory authority
over activities affecting surface waters. Its permitting authority is
enforceable in administrative and judicial forums. In 2008, the District
sued to enjoin unpermitted dredging and filling activities on land in Osceola
County that harmed environmentally sensitive areas. It also sought civil
penalties as provided by law. The Court ordered remediation of the lands
to correct the environmental damage and awarded $81,900.00 in civil
penalties. In doing so, the trial court concluded the District had
proven the regulatory violation by the traditional “preponderance of the
evidence” standard. The landowners appealed to the Fifth District
Court of Appeal alleging, among other things, that the District had to prove a
regulatory violation by the higher “clear and convincing evidence”
standard rather than the “preponderance of the evidence” standard
in order to impose monetary penalties. The Fifth District agreed and
reversed the trial court’s award of civil penalties. The Fifth
District, however, certified the question as one of great public importance to
the Florida Supreme Court. The District timely filed a notice to invoke
the discretionary jurisdiction of the Florida Supreme Court. The Florida
Supreme Court has not yet taken action on this case.
2.
Palm Beach County Commission on Ethics: Recent Advisory Opinions
RQO 12-080: The Palm Beach County
Commission on Ethics (the “COE”) reviewed whether a municipal
employee was prohibited from reviewing and awarding a bid submitted by her
brother-in-law. The COE held that municipal employees are prohibited
from using their office to give certain relatives and those relatives’
employers a special financial benefit not shared with similarly situated
members of the general public. These relatives include: a sibling or
step-sibling, child or step-child, parent or step-parent, niece or nephew,
uncle or aunt, or grandparent or grandchild of the employee, or of the
employee’s spouse or domestic partner, or the employer or business of
any of these people. An employee’s brother-in-law is not among the
persons or entities specified in the Code of Ethics. That being said,
the COE cautioned the employee and stated that there is an appearance of
impropriety if the employee reviewed and awarded the contract to her
brother-in-law. The COE recommended that in order to avoid the
appearance of impropriety, another member of the municipality’s staff
should review the brother-in-law’s proposal and issue the award.
RQO 12-085: The Palm Beach County Commission on Ethics
(the “COE”) reviewed whether a municipal official, as a member of
a 501(c)(3) charitable organization, could volunteer to serve on an ad hoc
committee of that organization to review student applications and interview
students for the purpose of awarding college scholarships. The committee
would not be involved in fundraising activities for the charitable
organization. Based on the facts submitted, the COE held that the Code
of Ethics does not prohibit the official from volunteering for a
non-fundraising ad hoc committee of a charitable organization in either his
personal or official capacity. However, the official must be careful not
to use his position to offer or obtain a quid pro quo for himself or for
anyone else or to otherwise specially financially benefit persons or entities
listed in the misuse of office section of the Code of Ethics. The COE
also held that should the official decide to participate in fundraising
activities in the future, he would need to abide by the gift law section of
the Code, which regulates this type of activity.
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 No. 502011CA017953XXXXMB. Inspector General Funding
Lawsuit.
Fourteen municipalities have sued Palm Beach County challenging the method of
funding for the Inspector General program. The municipalities contend
that the current funding method is an unlawful tax and invades municipal home
rule budgetary authority. The Inspector General filed a Motion to
Intervene, and a hearing on this Motion was held on October 24, 2012. On
November 16, 2012, Judge Catherine Brunson denied the Inspector
General’s Motion to Intervene. On August 30, 2012, the
municipalities filed a Motion for Partial Summary Judgment. The purpose
of the Motion for Partial Summary Judgment was to ask the Court to rule on the
legality of the funding method without further delay and before a trial
commences. A hearing on the Municipalities’ Motion was held on
November 29, 2012. On December 5, 2012, before Judge Brunson could rule
on the municipalities’ Motion, the Inspector General filed a Notice of
Appeal on the order denying her intervention in the case. All trial
court proceedings have stopped pending the appeal. On December 17, 2012,
the Fourth District Court of Appeal issued an order expediting the
appeal. No further action has been taken by the Fourth District at this
time.
4.
City of Orlando and Lasercraft, Inc. vs. Michael Udowychenko, etc., Case
Number SC12-1471. Red Light Cameras.
This case was reported on at the July 2012 League meeting and the details are
contained in the July Legal Update, which is located on the League’s
website. On November 6, 2012, the Florida Supreme Court accepted
jurisdiction of the case. On January 3, 2013, the City of Orlando filed
its initial brief. On January 10, 2013, the Florida League of Cities
filed a motion for permission to file an amicus curiae brief. No further
action has been taken by the Florida Supreme Court at this time.
5. City of Palm Bay vs. Wells Fargo Bank, N.A.,
Case Number SC11-830. Superiority of Code Enforcement Liens.
This case was reported on at the July 2012 League meeting and the details are
contained in the July Legal Update, which is located on the League’s
website. No further action has been taken by the Florida Supreme Court
at this time.