Legal Report, October 2016

General Counsel, Jennifer G. Ashton
Corbett White Davis & Ashton

1. Gibson v. Kesterson, 188 So. 3d 125, 2016 Fla. App. LEXIS 5266, 41 Fla. L. Weekly D 852 (Fla. 1st DCA 2016). Recall petition.

A Commissioner for the Town of Inglis proposed a beautification ordinance seeking to outlaw dilapidated and uninhabitable manufactured homes within the community.  A resident filed a recall petition against the Commissioner seeking his removal from office on grounds that he had committed “misfeasance.”  Misfeasance is the performance, in an official capacity, of a legal act in an improper or illegal manner.  The trial court concluded that the petition was legally insufficient under Florida's recall statute, § 100.361, F.S. (2015) to establish misfeasance. On appeal, the First DCA agreed. The recall petition does not allege that the Commissioner’s actions were unauthorized or illegal, only that the actions, if successful, may affect or have consequences on existing legal rights.  This is a hypothetical and not sufficient to constitute misfeasance.  Merely "intending" to pass an ordinance or to have discussion about a controversial one is far from misfeasance.  Most citizens expect their representatives to discuss controversial matters and propose solutions that may require new ordinances or laws.  Thus, the Commissioner’s pursuit of measures that he believes may be in the community's best interests provides no basis for recall under Florida law. Because the trial court correctly ruled that the recall petition was legally insufficient, the grant of injunctive relief and its order stopping the recall election was affirmed.

2.   Bair v. City of Clearwater,196 So. 3d 577, 2016 Fla. App. LEXIS 11823, 41 Fla. L. Weekly D 1817 (Fla. 2d DCA 2016). Bert J. Harris Act Claim; Equitable Estoppel.
Property Owners purchased a waterfront home on Clearwater Beach in 2008. A 2003 Flood Insurance Rate Map indicated that the property sat in a flood zone.  In 2011, the property owners submitted an application for a permit to remodel the home as well as to add an addition onto the home.  Because the property was located in a flood zone, the property owners were required to elevate the home pursuant to § 51.03 of the City’s Development Code and relevant FEMA regulations if “substantial improvements” were made.  "Substantial improvements" are defined by the City Code and FEMA regulations as modifications or improvements to a structure made during a one-year period that equal or exceed 50% of the market value of the structure before the modifications or improvements commenced.  The property owners submitted documentation showing that they did not need to elevate the home.
In August 2011, after a permit was issued, the property owners began construction on their home, which included a partial demolition. Nine days after construction commenced, the City issued a stop-work order on the basis that the partial demolition was so extensive that the City believed the improvements and addition would exceed 50% of the market value of the pre-existing structure and therefore, the home needed to be elevated.  In March 2013, the property owners sued the City seeking damages under a Bert J. Harris Act claim, and an equitable estoppel claim.  In response, the City filed a motion to dismiss and an alternative motion for summary judgment.  The trial court ruled in favor of the City.
On appeal, the Second DCA agreed with the trial court that the equitable estoppel claim could not exist as a stand-alone claim used offensively to seek money damages against the City for blocking land development.  The Second DCA also agreed with the trial court that there was no viable Bert J. Harris claim.  The Bert J. Harris Act, § 70.001 et seq., F.S., does not apply to a local government’s application of any law, rule, regulation, or ordinance that was adopted on or before May 11, 1995 except where the law, rule, regulation or ordinance has been amended after May 11, 1995, and the application of the amended language “imposes an inordinate burden” on real property.  The ordinances at issue here were all adopted on or before May 11, 1995.

The property owners claimed that the City’s ongoing requests for additional information and requests for revisions to plans, even though those were not laws, rules, regulations, and ordinances, were enough to constitute a Bert J. Harris Act claim.  The Court disagreed.

The property owners also claimed that since the City relied on post-1995 information such as flood insurance rate maps and studies and FEMA regulations, they could make a Bert J. Harris Act claim against the City.  The Court again disagreed since the City’s 50% rule, which required the home to be elevated, was enacted prior to May 11, 1995.

Finally, the property owners claimed that the City issued a permit for their house renovation well after May 11, 1995.  Therefore, they were able to make a Bert J. Harris Act claim against the City.  Again, the Court disagreed because the Bert J. Harris Act only looks at the date the ordinance was adopted or amended, not the date it was applied against the real property.

3.         INFORMAL Florida Attorney General Opinion (2016)—Public Records, Twitter.
In this informal opinion, the AG addressed whether a list or record of accounts which had been blocked from posting to or accessing an elected official's personal Twitter feed was a public record as defined in § 119.011(12), F.S., and therefore subject to public inspection and copying. A determination of whether the list of blocked accounts is a public record requires resolution of the question of whether the "tweets" which resulted in the blocked accounts, were public records. In short, if the public official’s "tweets" are public records, then a list of blocked accounts prepared in connection with those "tweets," could well be determined by a court to be a public record.

4.         Florida Attorney General Opinion 2016-05 (2016)—Fireworks.
This opinion addressed whether § 791.07, F.S., including the note from Chapter 2007-67, Laws of Florida, prohibits the City of Altamonte Springs from issuing a permit for the sale of fireworks in the next calendar year.  By the plain language of § 10(5), Chapter 2007-67, Laws of Florida, which is quoted in full in the note accompanying § 791.07, F.S., local governments are precluded from allowing a new permanent facility to be opened for the sale of fireworks after March 8, 2007, and each local government may now only issue as many permits allowing temporary facilities such as tents to engage in such sales as it had issued in calendar year 2006.  Since the City of Altamonte Springs issued no prior permits for the sale of fireworks at temporary facilities in calendar year 2006, it is precluded from issuing any permits for the sale of fireworks in the next calendar year.

The AG also referenced AGO 2009-18, which concluded that the City of Coral Springs was precluded from enacting an ordinance imposing any limits on state fireworks laws after March 8, 2007, because the city had no ordinances regulating fireworks sale or use prior to the moratorium of § 10(5), Chapter 2007-67, Laws of Florida. The opinion concluded by stating that § 10(5) “prohibition remains in effect until the Legislature takes action to remove the prohibition.”