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Also from the Supremes: Updated Test on Special Acts

In a fairly unusual (at least in local government law) occurrence, the Florida Supreme Court also issued two cases in one day that dealt with tests for whether a statute is a "local law" or "speical act" and subject to the special processes for such laws. The new (well, actually, affirmed) test: if the "class" of localities or entities regulated by the statute is not "open" is based on whether there is a realistic or reasonable chance that other localities or entities will enter the class.

The first case was Fla Dept of Bus and Prof Reg. v Gulfstream Park Racing Ass'n, which dealt with an act that involved televised (or rebroadcast) racing and betting on such races. The statute regulated situations where there were 3 tracks within 25 miles of each other (which applied only to a certain area in Broward and Dade counties and to 3 particular tracks including Gulfstream). However, the state argued that because of some bizarre provision in another statute, it might be possible to establish one or more new quarter horse racing tracks within 25 miles of one another, and therefore it was possible that the restriction could apply to other localities and entities in the future.

The First DCA rejected "mere possibility" as a test and concluded that the
proper test was whether there is a reasonable possibility that other entities
would be subject to the class. The Supreme Court agreed, writing
that

We conclude now that we made explicit in that opinion what was implicit in our prior decisions, namely that any determination of possible future applications of a statute must be done by a realistic and reasonable assessment. Otherwise, such an assessment would essentially be standardless, a situation we do not believe to be consistent with judicial review and enforcement of article III, section 10

The Supreme Court therefore agreed with the First DCA that the statute was a local or special law, and invalid because it had not been properly adopted.

A similar fate befell a statute attempting to exempt a particular hospital transaction from going through Certificate of Need (CoN) permitting. In St.
Vincents' Medical Center v. Memorial Healthcare Group
, the court found that the statute, while purporting to be "open," included standards and timing that only one hospital or facility could reasonably be expected to meet.

The quote in St. Vincents', while lengthy, is probably the one that will be used in the future:

St. Vincent’s does not dispute that the statute’s provisions appear tailored
to fit its plans to establish a new hospital. Rather, St. Vincent’s challenges
the district court’s invocation of a “reasonable possibility” standard rather
than a mere possibility standard in any assessment of whether others may qualify
under the statute’s exemption. However, as we recently held in Florida
Department of Business & Professional Regulation v. Gulfstream Park Racing
Ass’n, Nos. SC05-2130 & SC05-2131 (Fla. Sept. 6, 2007), “a review of our
case law and the underlying purpose behind the constitutional restrictions
contained in article III, section 10, supports the reasonableness standard used
by the First District and its application to this case.” Slip op. at 12.

In Gulfstream Park, we confronted a statute that prohibited a racetrack from
selling broadcasts within its market area if it is within twenty-five miles of
at least two other racetracks. Id. at 3. While the parties agreed that, at the
time of the statute’s enactment, it applied only to one particular part of the
state, they differed as to whether the statute was open to application to other
areas of the state in the future. Id. at 11. As we held in that case,

In essence, we must choose between a wholly speculative evaluation
of the possibility of the future application of a statute as advanced by the
appellants and the practical reasonableness standard articulated by the
district court. While our own case law has been largely silent on this
issue, an examination of the analysis applied in each case implicitly
suggests that we ourselves were applying a reasonableness and realistic
possibility standard in assessing a statute’s potential future operation.
Nowhere in any of our decisions have we indicated that a wholly speculative or unreasonable potential would satisfy the constitutional mandate of article III, section 10.

Id. at 12. Accordingly, we agreed with the First District’s conclusion in that case, finding that there was no reasonable possibility that the statute would ever apply to other parts of the state. Id. at 13.

While the courts should never second-guess the Legislature about the policy decisions contained within a challenged statute, we are nevertheless obligated to give meaningful effect to the notice procedures for special laws mandated by
Florida’s Constitution. Consistent with this obligation we have emphasized in
Gulfstream Park that whether a law has general application turns on a
determination of whether its application to others is reasonable or practical,
not theoretical or speculative. The question of general application is not to be
guided by irrational speculation that anything is possible. Id. at 13 (“[A]ny
determination of possible future applications of a statute must be done by a
realistic and reasonable assessment. Otherwise, such an assessment would
essentially be standardless, a situation we do not believe to be consistent with
judicial review and enforcement of article III, section 10.”).


I'm not sure how many of these "greased" statutes get passed every year; I'm guessing its a fair number. There's a much more clear basis to challenge them now, and a reasonable threshold for proof.

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