Legal Report, March 2013

General Counsel, Trela J. White

1. Jass Properties, LLC v. City of North Lauderdale,

101 So. 3d 400 (Fla. 4th DCA 2012).  Ordinance re Utility Services.
Section 180.135 of the Florida Statutes provides that a municipality may not refuse or discontinue utility services to the owner or tenant of a rental unit for nonpayment of service charges incurred by a prior tenant.  The rationale behind this statute is that the contract for utility services was between the municipality and the prior tenant, not the municipality and the owner or a new tenant.  The City of North Lauderdale is the exclusive provider of water and sewer services within the City.  In order to ensure payment for its utility services, the City adopted an ordinance that requires landlords, but not their tenants, to contract with the city for water and sewer services, even though the utility services directly benefit the tenants.  Under the ordinance, the City was not required to open an account in the tenant’s name.  Thus, if a landlord did not contract with the City for utility services, then the tenants would not receive those services, which would render the residential unit uninhabitable.  A landlord sued the city alleging that the ordinance conflicted with Section 180.135, Florida Statutes, and therefore was invalid.  The Fourth District Court of Appeal held that Section 180.135 did not expressly prohibit the City from declining to contract with tenants and restricting its agreements for utility services to property owners.  Since there was no express prohibition in the state statute, there was no conflict with state law and the City’s ordinance was valid.  The Court noted that “[b]y requiring landlords to actively manage their private business interests, [the] City avoids the burden of dealing with perhaps hundreds or thousands of individual tenants who might be behind on their bills … We see nothing in the statute that prevents the City from enacting an ordinance designed to constrain costs that might otherwise be borne by the taxpayers.”

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

RQO 13-002:  The Palm Beach County Commission on Ethics (the “COE”) reviewed whether a municipal police officer was prohibited from establishing a non-profit organization designed to fulfill the needs of children and vulnerable adults that police officers encounter during their service.  The COE held that the Palm Beach County Code of Ethics did not prohibit the police officer from establishing a non-profit organization.  The COE, however, stated that if the police officer became an officer or director of the non-profit organization, then the police officer would be prohibited from using her official position or title to secure donations.  Lending one’s official title to a fundraising effort would constitute a “per se” misuse of office to specially financially benefit the non-profit organization.  Any solicitation of donations on behalf of the non-profit organization needs to be done without reference to the police officer’s public official position or title.  This prohibition applies directly to the police officer as well as to anyone indirectly soliciting on behalf of the police officer.  With respect to the local gift law, should the non-profit organization elect to solicit donations from vendors, lobbyists, or principals or employers of lobbyists of the City, then the police officer must maintain a charitable solicitation log and submit it to the COE office within 30 days from the occurrence of the event for which the solicitation was made, or if no event, within 30 days from the occurrence of the solicitation.

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 Trial Judge denied the Inspector General’s motion to intervene in the case and the IG appealed.  The appeal is currently pending in the Fourth District Court of Appeal.  On December 17, 2012, the Fourth District issued an order expediting the appeal.  On January 28, 2013, Appellee Palm Beach County requested oral argument, which was granted.  Oral argument occurred on March 19, 2013.  The Fourth District has not yet ruled on the Inspector General’s appeal.  Once the Inspector General’s appeal has concluded, the funding dispute will proceed to trial in the Trial Court.

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 Appellant City of Orlando filed its initial brief.  On January 25, 2013, the Florida League of Cities filed amicus curiae brief in support of the City of Orlando.  On February 27, 2013, the Appellee Michael Udowychenko filed his Answer 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.

6. 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.