Legal Report, June 2013

General Counsel, Trela J. White

1. Referenda/Initiatives On Comprehensive Plan Amendments, Map Amendments and Development Orders (Ch. 2013-115, Laws of Florida)

Chapter 2013-115, Laws of Florida, amends Section 163.3167(8), Florida Statutes, to clarify and reaffirm Florida’s long-standing prohibition on the use of referenda and citizen initiatives to approve, reject repeal, or modify a local government’s comprehensive plan amendments, map amendments and development orders.  This amendment states that initiatives and referenda on development orders are outright prohibited.  There are no exceptions to this rule.  This amendment further states that initiatives and referenda targeting comprehensive plan amendments or map amendments are prohibited unless: (1) the comprehensive plan amendment or map amendment affects more than 5 parcels of land; and (2) the local government had specific language in its charter in effect on June 1, 2011, which allowed for these types of referenda or initiatives.  The Florida Legislature clarified that a charter provision allowing for initiatives and referenda generally was not sufficient to trigger this exception.  The amendment to Section 163.3167(8), Florida Statutes, expressly states that it is remedial in nature and applies retroactively.

1. Palm Beach County Commission on Ethics:  Recent Advisory Opinions

RQO 13-011:  The Palm Beach County Commission on Ethics (the “COE”) reviewed whether an Aviation and Airports Advisory Board Member was prohibited from voting on and participating in the selection of a new fixed based operator for the Palm Beach County Park Airport.  The COE held that the Palm Beach County Code of Ethics prohibited the advisory board member from voting on or participating in this matter.  The COE stated that appointed officials are prohibited from using their official position to give themselves a special financial benefit not shared with similarly situated members of the general public.  In evaluating conflicts of interest under the local Palm Beach County Code of Ethics, the COE considers: the number of persons who stand to gain from a decision; and whether the gain or loss is remote or speculative.  Where the class of persons who stand to gain from a decision is small, it is more likely that the advisory board member will have a conflict.  Here, the advisory board member leases 2 of the 68 hangars at the Airport.  The number of persons or entities directly affected by the selection of a new fixed based operator is too small a class to be considered similarly situated to members of the general public.  Also, the advisory board will provide input and recommendations to the Board of County Commissioners regarding the contract with the new fixed based operator, which could affect the advisory board members rights, costs and fees as a tenant at the Airport.  Based on these facts, the COE concluded that the potential financial benefit to the advisory board member was not so remote and speculative as to eliminate a conflict of interest under the local Code of Ethics. 

1. 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 Trial Judge denied the IG’s motion to intervene in the case and on December 12, 2012, the IG appealed.  The IG’s appeal centered on whether the IG’s Office was a legally independent entity from the County and therefore, had the right to sue on the issue of funding.  On March 28, 2013, the Fourth District Court of Appeal agreed with the Trial Judge that the IG could not intervene.  On April 22, 2013, the Fourth District denied the IG’s motions for rehearing or clarification and for rehearing en banc.  On May 10, 2013, the Fourth District issued a mandate indicating that the IG’s appeal had concluded.  On December 14, 2012, the Inspector General also filed a Petition for Writ of Mandamus in the Fourth District Court of Appeal.  The IG’s Petition again alleged that the IG’s Office was a legally independent entity from the County and therefore, had the right to sue on the issue of funding.  The IG’s Petition specifically demanded that the Court (1) force the municipalities to pay for the IG Program while the lawsuit was pending; (2) force the Palm Beach County Clerk & Comptroller to bill the municipalities and transmit all monies received to the IG while the lawsuit was pending; and (3) force the County to pay for any IG budget shortfalls while the lawsuit was pending.  On April 17, 2013, the Fourth DCA denied the IG’s Petition “on the merits.”  Now that the IG’s appeal and petition have been resolved, the funding lawsuit can continue in the Trial Court.  A hearing on the municipalities’ motion to dismiss the County’s Amended Counterclaim is scheduled for July 11, 2013 at 9:30 a.m.  Once this motion is resolved, the case will proceed to trial.

1. 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.  The parties have filed their respective briefs.  No further action has been taken by the Florida Supreme Court at this time.

1. City of Palm Bay vs. Wells Fargo Bank, N.A.,

Case Number SC11-830.  Super-priority of Code Enforcement Liens.
This case was first reported on at the July 2012 League meeting.  The City of Palm Bay’s Ordinance provided that the City’s code enforcement liens were co-equal to tax liens and had super-priority over all other liens including all prior-recorded mortgages.  On May 16, 2013, the Florida Supreme Court issued an opinion holding that the City’s Ordinance conflicted with state law.  Specifically, the Court held that the Florida Statutes outline the requirements for priority of liens.  The City’s ordinance attempted to supersede state law by creating a new scheme for priority of liens.  The Court concluded that municipal code enforcement liens that are recorded after a mortgage do not have super-priority over that mortgage.

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.
This case was reported on at the January 2013 League meeting and the details are contained in the January 2013 Legal Update, which is located on the League’s website.  On March 7, 2013, the Florida Supreme Court accepted jurisdiction of the case.  No further action has been taken by the Florida Supreme Court at this time.