Legal Report, March 2015

General Counsel, Trela J. White

1. Consumer Rights, LLC v. Union County, 40 Fla. L. Weekly D533b (Fla. 1st DCA February 26, 2015).  Attorney’s Fees and Public Records Lawsuits.

The First District Court of Appeal held that attorney’s fees were not warranted due to the county’s delay in responding to a public records request.  The request was made in a suspicious email by an unnamed agent for an unidentified “Florida company.”  The email address did not appear to be the address of a person and the email was sent to an email address posted on the county’s website that was not associated with a particular county employee.  Other than the email address, ask4records@gmail.com, the request did not contain any information as to how the county might contact the agent or the corporation.  The Court also found it suspicious that the requestor waited four (4) months without saying anything before suing the county for attorney’s fees.

The Court stated that an award of attorney’s fees under Chapter 119, Florida Statutes, is proper only if the delay in providing records is “unjustifiable” and thus amounts to an “unlawful refusal” to provide the records.  The Court held that the county was justified in declining to immediately respond to the request given that the email was intentionally designed to appear to be deceptive and appeared to constitute “phishing” or a scam.  The county provided the records soon after it learned that the request had been made by a person on behalf of an existing Florida corporation.  The Court held that the delay in responding to the email was not tantamount to an unlawful refusal to provide the records.

2. Oldies But Goodies: Is a Local Government Prevented From Revoking a License, Permit or Other Development Approval Issued In Error?
These cases are important to keep in mind as development, redevelopment, and building permit requests increase in your municipalities.

Ammons v. Okeechobee County, 710 So. 2d 641 (Fla. 4th DCA 1998). The property owners consulted with the zoning official and were told they could store aluminum construction materials on their residential property as part of their business.  The county also issued the property owners an occupational license and building permit for their business.  About fifteen months later, the county sent the property owners a cease and desist letter informing them that they must cease all commercial activity on the premises and the occupational license was being revoked because it was issued in error.  The property owners sued claiming that the county could not revoke the license because they had relied on the zoning official’s statements that the use was permitted.  The Court held that the county could revoke the license.  The zoning official clearly made a mistake.  The county’s zoning ordinances, however, controlled and could not be unilaterally changed by the zoning official.  The Court wrote: “It would not serve public policy well to permit such mistakes to persist when they affect public welfare, like planning and zoning decisions do.”

Town of Lauderdale-By-The-Sea v. Meretsky, 773 So. 2d 1245 (Fla. 4th DCA 2000).  A property owner filed suit after the town ordered that work stop on a wall that the property owner was constructing on his property.  The property owner previously had been granted a building permit by the town to construct the wall.  The Court held that the building permit allowed the property owner to construct the wall so that it encroached into a public right-of-way.  This was contrary to the town’s code of ordinances and therefore, the permit was void.  The property owner was on constructive notice of the contents of the ordinance.  As a result, the town was not prevented from requiring that the wall be removed.  The Court noted that “at first blush it seems that the application of the rule may be harsh ….”  However, “it would be inconceivable that public officials could issue a permit, either inadvertently, through error, or intentionally, by design, which would sanction a violation of an ordinance adopted by the legislative branch of the government.”  Only the town commission had the authority to change the ordinance.

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 sued Palm Beach County challenging the method of funding for the Inspector General Program (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.  A three day non-jury trial regarding this matter commenced Tuesday, August 19, 2014.  On March 16, 2015, the Trial Court entered a Final Judgment in favor of Palm Beach County.