Legal Report, June 2015

General Counsel, Trela J. White
Asst. General Counsel, Jennifer G. Ashton

1. SB 1216.—Growth Management

SB 1216, the Senate’s growth management bill, passed. The House bill that we were tracking, CS/CS/CS/HB 933, was placed on the table. SB 1216 was substituted in its place. The final enrolled bill was a combination of SB 1216 and HB 933, which restricted local government control over growth management decisions. SB 1216 does many things, including: expanded the definition of blighted area to make it easier for CRAs to redevelop properties damaged by sinkhole activity; eliminated the DRI process for future large-scale projects; dissolved the Withlacoochee Regional Planning Council (RPC) and “authorizes the governor to review and update boundaries of [RPCs]”. Some statutory functions of the RPCs were also deleted; the sector plan law was amended and some regulatory review is no longer required; concurrency and impact fees in certain situations were capped; and local governments were preempted from imposing fees for vegetation removal from the rights-of-way when a development is complying with concurrency. 

2. SB 896 and HB 391.—Location of Utilities

The Florida Legislature considered multiple unfunded mandates this session. We followed SB 896 and HB 391, unfunded mandates that required local governments to bear the cost of relocating a utility’s equipment if the equipment was located within a private or public utility easement. SB 896 died in committee at Appropriations. HB 391 died in committee at Community Affairs.

3. SB       264.—Traffic Enforcement Agencies & Traffic Citations/The Waldo Bill
SB 264 passed both houses and was signed into law by the Governor. SB 264 clarifies existing law that makes it illegal for county sheriff’s offices and chartered municipality police departments to establish traffic citation quotas. Additionally, it requires a county or municipality to report to the Legislative Auditing Committee if the total revenue from traffic citations exceeds fifty percent of the total revenue to operate the city or county law enforcement agency in the same fiscal year.
SB 264 was nicknamed the Waldo Bill. Waldo is a city in Alachua County, with a population of less than one thousand people. In 2012, Waldo came into the national limelight, when the city was named by the National Motorist Association as one of the worst speed traps in the United States and Canada. In a state investigation of Waldo’s police department, multiple Waldo police officers disclosed they were required to meet traffic citation quotas (in contravention of section 316.640, Florida Statues). CBS reported that revenue from the traffic citations accounted for over one-third of the city’s total revenue and the revenue from the traffic citations provided over one-half of the police department’s budget. Waldo’s city council voted to disband the police force last year.

4. City of Jacksonville v. R. Lee Smith and Christy Smith; Case No. 1D14-2191 of the
    First District Court of Appeal. Bert J. Harris Act
Lee and Christy Smith bought an undeveloped riverfront property in 2005. They intended to construct a home on the lot or sell it as a residential lot. The City of Jacksonville owned the lot next door. It was deed restricted for Duval County employees. In 2007, Jacksonville cancelled the deed restriction and rezoned the property for construction of a large, two-story fire station with three docks for law enforcement and fire department boats. Construction of the fire station began in 2010. The Smiths filed a lawsuit and claimed, under the Bert J. Harris Act, that the construction of the fire station inordinately burdenedtheir property and made it unmarketable as a luxury home site. Jacksonville countered that the Bert J. Harris Act did not apply because no law, ordinance, or regulation was applied to the Smith’s property. The trial court ruled in favor of the Smiths and concluded that the fire station resulted in an inordinate burden on the Smith’s property. The matter was appealed to the First District Court of Appeal and reversed in a nine to five en banc decision. The First DCA concluded “a property owner may [not] maintain an action pursuant to the [Bert J.] Harris Act if that owner has not had a law, regulation, or ordinance applied which restricts or limits the use of the owner’s property”. Additionally, the First DCA opined that to extend the Bert J. Harris Act to apply to adjacent property owners, as the Smiths contended, would expose local governments to a cause of action for damages whenever rezoning decisions had a detrimental impact on adjoining properties. Five judges dissented and felt the Bert J. Harris Act should apply to property owners like the Smiths. The opinion presents a lengthy analysis of the Bert J. Harris Act, its history, and impact on local governments.

5. City of Hollywood, etc. v. Eric Arem; Case No. SC15-236 of the Supreme Court of
    Florida. Red Light Cameras
After a motion for rehearing, the Fourth District Court of Appeal withdrew its previous opinion, which ruled in favor of Hollywood, and issued a substitute opinion that stated a city is not authorized by section 316.650(3), Florida Statutes, to delegate its police power and enter into a contract with a private vendor to allow the vendor to screen data and decide whether red light traffic violations have occurred before sending the information to a law enforcement officer. Hollywood filed an appeal with the Florida Supreme Court to avoid judicial confusion and “the practical effect of disrupting red light camera safety programs throughout Florida”. In April, the Florida Supreme Court denied Hollywood’s appeal. The Supreme Court’s refusal to hear the matter allows the Fourth DCA’s prior ruling to become statewide precedent (no other DCA has ruled on red light camera programs1). Local governments can still utilize red light camera systems, but cannot rely on private vendors to analyze photographs from the red light camera before a law enforcement officer issues a citation.
As a result of the outcome of this case, class action lawsuits were filed in the U.S. District Court for the Southern District of Florida against eighty-one towns and private red light camera operators. The plaintiffs in each lawsuit seek reimbursement of fines assessed against motorists by red light camera programs. Plaintiffs allege these fines were unlawful. The cases were consolidated and are currently pending before Judge Federico A. Moreno 2. Most local governments have filed motions to dismiss that have yet to be heard. At stake is over $200 million in fines. We will continue to monitor this case.

6. Jeffrey Marcus Gray vs. Lutheran Social Services of Northeast Florida, Inc. (“LSS”); Case
No. 1D14-5793 of the First District Court of Appeal. Public Records
This case was first reported on at the January 2015 League meeting. The full details of the case are contained in the January 2015 Legal Report. Gray is a self-described public activist, who earns part of his livelihood making public records requests on unsuspecting private entities that do business with public agencies and then suing them when they fail to provide the public records to Gray’s satisfaction. Joel Chandler helps Gray carry out his public records requests. In this case, the trial court ruled that the means utilized by Gray to seek records from LSS constituted a flagrant abuse of Chapter 119 and were designed to ambush unsuspecting private entities. The trial court further opined that the practices amounted to no more than a scam and denied Gray’s complaint seeking attorney’s fees and costs. The court went on to state that the Public Records Act “…was not designed to create a cottage industry for so-called ‘civil rights activists’ or others who seek to abuse the Act for financial gain.” Gray filed an appeal with the First District Court of Appeal. Previously, Gray sought and was granted an extension of time to file his Initial Brief. Gray’s Initial Brief was timely filed with a motion for oral argument. Most recently, LSS sought and was granted an extension of time for service of an answer brief. The answer brief was timely filed with an unopposed motion to supplement the record. We will continue to monitor this case.

7. Town of Gulf Stream, et al vs. Palm Beach County, and Sharon R. Bock, as Clerk and
Comptroller of Palm Beach County, Intervener; Case No. 4D15-1753 of the Fourth District Court of Appeal from the Fifteenth Judicial Circuit, Palm Beach County, Case No. 502011CA017953XXXXMB. Inspector General Funding Lawsuit.
Fourteen municipalities sued Palm Beach County challenging the method of funding for the Office of Inspector General (the OIG Program). The current funding method authorizes the Board of County Commissioners to set an amount the municipalities must pay for the OIG Program and to bill municipalities for that amount. The municipalities contend that the current funding method is an unlawful tax and invades municipal home rule budgetary authority. On March 16, 2015, the trial court entered a Final Judgment in favor of Palm Beach County. On May 5, 2015, a Notice of Appeal was filed by the municipalities in the trial court. On May 20, 2015, Palm Beach County filed their Notice of Cross Appeal in the trial court. We will continue to monitor this case.