Legal Report, September 2019

General Counsel, Keith Davis

1. Liebman v. City of Miami, Case No. 3D18-812 (Fla. 3d DCA 2019). Standing; Bidding Process
Four individuals (“Plaintiffs”) sued the City of Miami (“City”) as a result of delays stemming from a proposed mixed-use development. Specifically, the delays caused the City to amend and re-enact amendments “to the Flagstone project and [enter] into the Marina Lease and Retail/Parking Lease.” The four Plaintiffs, which consisted of three City residents and one non-resident who was an unsuccessful bidder on the project, alleged that these amendments and re-enacted amendments violated provisions of the City Charter.

The trial court dismissed the Plaintiffs’ claims for lack of standing. The trial court first found that the three City residents collectively lacked standing because Section 52(C) of the City Charter, the applicable provision giving plaintiff’s authority to sue the City, had not been enacted until November 2016 and did not apply retroactively to alleged violations predating the amendment. Additionally, the non-resident Plaintiff lacked standing because “his allegation of a special injury was conclusory and speculative.”

Upon review, the Fourth DCA found that the trial court properly dismissed all Plaintiffs’ claims for lack of standing, thus affirming on all counts. With respect to the three City residents, the Fourth DCA found that the November 2016 amendment to Section 52(C) of the City Charter did not retroactively confer standing on their claim against the City of Miami. The Fourth DCA reasoned that, because the November 2016 amendment was a substantive and not procedural change to the law, a presumption against retroactive application existed (citing Smiley v. State, 966 So. 2d 330, 334 (Fla. 2007)). With respect to the non-resident Plaintiff who had unsuccessfully bid on the original proposed development, the Fourth DCA confirmed that the Plaintiff’s testimony that he would merely consider re-submitting a bid if the City issued a new request for proposal “insufficient to meet the special injury requirement for standing purposes.” The Fourth DCA hints that, in order to meet standing requirements, Plaintiffs similar to the non-resident party here need to be “ready, willing, and able to submit a competitive bid or proposal had the [City] invited such bids or proposals” (citing Accela, Inc. v. Sarasota Cty., 901 So. 2d 237, 238 (Fla. 2d DCA 2005)).

2. AGO 2019-08 (August 16, 2019). Vacation rentals, municipalities, grandfather provision.
The Florida Attorney General (“AG”) addressed whether a city may change its table of permitted uses for zoning districts to allow vacation rentals within districts in which they were not allowed under the City’s pre-2011 ordinance, and still preserve the “grandfathered” status of its pre-2011 ordinance under § 509.032(7)(b), F.S. Section 509.032(7)(b), F.S. provides that a local law, ordinance, or regulation may not prohibit vacation rentals or regulate the duration or frequency of rental vacation rentals; however, this paragraph does not apply to ordinances adopted on or before June 1, 2011. The AG noted that when a law is amended, provisions of the original law that are essentially and materially unchanged are considered to be a continuation of the original law. This principle was similarly operative in City of Miami v. Airbnb, where the Third DCA observed that a 2017 resolution interpreting zoning ordinances that prohibited short-term rentals in a suburban/residential zone was not preempted because it was “identical in its material provisions” to the zoning code the City had enacted in 2009. The AG concluded that amending an ordinance that was enacted prior to June 1, 2011 will not invalidate the grandfathering protection for those provisions that are reenacted, but new provisions would be preempted if they revise such language in a manner that would regulate the duration or frequency of rental of vacation rentals, even when such regulation would be considered “less restrictive” than the prior local law.

3. AGO 2019-08 (August 16, 2019). Public records; Cybersecurity Testing
The Florida AG spoke to whether Chapter 119 precludes an agency covered by that chapter from engaging a vendor to conduct penetration testing of the agency’s electronic data storage systems for the purpose of detecting and remedying vulnerabilities where such testing would allow the vendor to have access to personal identification information (e.g. home address, date of birth, social security numbers) of that is exempt from disclosure under §§ 119.071(4)(d)2.a & d, F.S. and confidential under § 119.071(4)(a)l, F.S. The AG pointed out that a distinction is made between public records that are “exempt” from disclosure and records that are “confidential.” If records are not confidential but are only exempt from the Public Records Act, the exemption does not prohibit the showing of such information. Based upon this distinction, the AG concluded that, in cases when there is a statutory or substantial policy need to disclose exempt information to a requesting agency or entity, the information may be disclosed. Therefore, information about law enforcement personnel and firefighters is exempt from disclosure in the interest of ensuring the safety of such personnel. However, potential access to or incidental release of such information to a vendor under a confidentiality agreement, for the purpose of ascertaining and ensuring its cybersecurity, would not appear to be inconsistent with the purpose underlying the exemption, if it is determined there is a “substantial policy need” to undertake the vendor penetration testing.