New Anti-SLAPP legislation

So buried in this year's amendments to the Condo and Homeowner's Association statutes is a whole new anti-SLAPP provision that has intro language about homeowners association, but seems to be applicable to any "lot owner."
 
It expands the existing anti-SLAPP statute (that only applies to gov't entities) to prohibit suits by pretty much any government or business entity raised "solely" because of someone's statements in a land use or related matter.  It provides for expedited hearings and treble damages.  
 
Two big problems with the statute.  First, it probits suits based "solely" on the defendant parcel owner's presentation before a government entity.  Essentially, this requires the person sued to demonstrate an intent or mental aspect to the suit that may be impossible to prove.  How would you show that there wasn't any other possible reason for the suit?  Which leads to the second problem - it provides for mandatory awards of attorney's fees to the prevailing party - so if you sue to dismiss under the statute and fail, you're liable for attorney's fees. 
  
Given the risk, and the availability of fees under 57.105, it seems to mee that this might be useful just to expedite a motion to dismiss, but only if you think you've got a good smoking gun on intent - demand letters or statements on the record from the other side.   Without some smoking gun, the best use of the statute is for citing the public policy statements in it in a closer case to give the judge an additional reason to dismiss. 
 
Here's the text in MS Word format 

History - the strange case of Dr. Mack

So in one of those situations where you're researching something else and hit an unexpected opinion, last week I ran into the strange case of Dr. Roy Mack and his long, long fight with the Florida Bd. of Dentistry. Seems that Dr. Mack was accused back in the '60s of advertising low prices (oh, and maybe taking unfair liberties with a female patient) and was subjected to a discplinary "hearing" before the board.

The 3d DCA denied cert with this opinion, reciting competent, substantial evidence and DeGroot v. Sheffield. Florida Supremes deny cert. (this was pre-the amends to Art. V)

Then it gets interesting - Dr. Mack goes to federal court under s. 1983 - and this is before a bunch of the cases under which the federal courts avoid policing the state courts where ever possible.

The federal district court overturns on due process grounds in this opinion, citing a number of deficiencies, but focusing on the highly problematic role of the Board's lawyer (Cherry, a number of years early), who was doing things like making objections and then telling the Chair how to rule on them.

The 5th Circuit (yes, these cases are that old), then upholds the District Court's reversal, but on different grounds in this opinion. It declines to hold that the lawyer problem was "per se" a due process violation, but basically says that the whole hearing was a farce and did not comply with due process. More and more facts come out regarding the "irregular" conduct of the hearing.

The Board then appeals to the US Supreme Court, complaining about the federal courts meddling in such matters. The Supremes deny cert, but with this dissent written by White, who asks the question (answered shortly thereafter) of whether s. 1983 should operate to provide a kind of "civil habeus corpus" review of civil decisions in federal court.

The real lesson here comes from the comparison of the 3d DCA case with the federal case. It's a complete whitewash, using policies that support the discretion of agencies and quasi-judical boards. When you then read the federal cases and realize what happened, one can't help but believe that it might be a good thing to have effective federal court oversight over state court decisions in civil rights matters.

"Business" standing to challenge amendments = The Admin Comm'n Blinks

The Admin Commission overturned the ALJ's determination that a non-profit organization formed for the purpose of supporting good growth policies was not a "business" for the purposes of standing to attack the consistency of a plan amendment approval.

However, the AC didn't find that the ALJ was wrong. Instead, it determined that because another petitioner had standing, the standing of Citizens for Proper Planning was legally irrelevant and didn't need to be decided. It then went on to say that the issue is "debatable" (oh, please!) and asked the Legislature for guidance.

Here's the Final Order (thanks to Larry Sellers for forwarding it to me).

Condemnation blight - error to exclude evidence

Ah, the DOT strikes again.

Here, the DOT managed to get a motion in limine that prevented the condemnee from showing the jury evidence that property rents had been depressed by the prospect of a (very long time in coming) taking for a road project.

To add insult to injury, the DOT then crossed the plaintiff's expert on why they used "old" rent data and not newer, lower rents.

The 2d didn't buy it and reversed in this opinon. It cited by US and Florida Supreme Court cases for the fundamental and longstanding principle that the government cannot depress the value of property (whether regulation or just the threat of condemnation) and then benefit from that action in the condemnation award.

It never really pays to be tooo tricky

In this opinion, the 5th overturned a Circuit Court quashal of a decision by the Orange County Board of Commissioners (sitting in a review capacity?) that upheld a BZA opinion upholding the Zoning Director's determination that a landowner's mess wasn't a grandfathered non-conforming "race car repair" operation, but a junkyard.

Bad facts. The landowners had been cited for operating a junkyard. They tried through the determination process to become a non-conforming race car facility and it was this determination that was denied. We don't know from the 5th's opinion -- but it looks like the circuit court bought the idea - that it wasn't inconsistent for there to be a junkyard (impermissible) AND a non-conforming race car repair facility.

5th bought Orange County's view that because there was CSE to support the Board in determining that there was a junkyard operation, the Board was justified in rejection the contention that there was (also?) a race car operation.

What's really interesting is that we don't know if EITHER the Circuit Court or the 5th examined Orange County's processes. The Board's decision was characterized as being quasi-judicial, but was it a de novo type process or a quasi-appellate process based on the record before the BZA? And if the latter, was there any appropriate finding that the record and decision below was truly adequate for review? I promise that we'll see more of this, because a LOT of commissions seems to be taking on quasi=appellate roles over local administrative decisions.

On Cert Review - Circuit Court must address all issues

In this opinion, the 5th remanded back to the circuit court for further consideration an opinion that it found did not address (properly) all of the legal issues raised in the petition. The failure to do so was a found to be a failure to apply the proper law.

Important case because if a circuit court punts an issue in your cert petition, this decision implies that this is remandable error. Stow it in your backpacks for later use!

Contemptable behavior ? Not according to the 5th DCA

So back in 2001 there's a referendum in Cocoa Beach to limit height and density. Doesn't go to the planning board first (which it would have to if treated as an LDR), and a group challenges it on that basis before the election. Court agrees to let the election go forward if City stays enforcement until hearing on validity later, and City agrees.

City then adopts a bunch of moratoria and LDR amendments to implement the height and density restrictions. Landowners angry. Court affronted - indirect implementation of referendum that City agreed to stay. Court later invalidates referendum - and this later gets overturned on appeal in decision that referenda, while legislative zoning ordinances, aren't LDRs for purposes of Chapter 163's requirement of local planning agency review. (Bad decision, but . . . ).

In the meantime, City continues enforcing the moratorium, etc. and end up in contempt.. City stands on its "legislative prerogative" and files a brief that's clearly a self-righteous rant (but wins any way). Here's an excerpt from the opinon:

Like the trial court, we are somewhat puzzled by the City’s position below and on
appeal. Rather than address the issue of whether the City actually violated the injunction by enacting the moratorium, the City has launched off into an attack on the trial court and what it calls its “egregious” violation of the constitution by “controlling” the City’s legislation in violation of the separation of powers. Reading the City’s brief as broadly as we can, however, we can divine an argument that the agreement of the parties, and the injunction based on that agreement, pertained only to the charter amendments approved pursuant to the challenged referendum and did not by its terms restrict the City’s ability to enact similar limitations by other methods available to the City’s commission. Because we agree with this proposition, we are bound to reverse the appealed order.

Vacation Beach did not challenge the moratorium as being beyond the power of the commission to enact; only that the City was prevented from enacting a moratorium that had the same purpose and effect as the referendum measure whose validity was in litigation and which was the subject of the injunction. We agree with the City that it was not so constrained. To say that the City could not do indirectly what it could not do directly does not solve the question whether the City could do something different but within its power that had the same purpose or effect as the referendum. If the City had the power to issue the moratorium before the referendum litigation and the injunction, nothing we can see prevented them from taking those same measures thereafter. The City did not agree to forebear height and density requirements or to place a moratorium on building. Even if the City intended its moratorium to show contempt of the court’s injunction, it did not because the moratorium was not within
the injunction. The City merely agreed to stay enforcement of the charter amendments.

The contempt order is vacated.

One simply must wonder what the Court would have done if the Plaintiffs had added a declaratory/injunction count against the moratorium itself as improperly supported, arbitrary and capricious.

Here's the opinion

[edited] Very weird - a denied comp plan amend not "fairly debatable" based on record at public hearing

[this is edited after a reread of the decision]

Woo, fella!
The 2d DCA released this opinion - 2/1 with a concurrence - finding that the City of Bradenton Beach's denial of a plan amendment from "preservation" to "Res-3" was not fairly debatable.

It appears that the landowner took the position that the original designation was in error and proved - to the satisfaction of the appeals court if not the circuit court - that no reasonable person reviewing the record would find otherwise.

It seems that the circuit court held a de novo hearing and found for the City based on the record there. But the majority opinion held that the record shows that the decision was "not fairly debatable" based on the record that was before the City Commission at the adoption hearing.

While this would be the right approach if the court was reviewing the plan for compliance with Chapter 163 (consistency w/statute & rule), I don't think it's right if the essential challenge is whether on a constitutional basis the Commission erred. There, the City should be allowed to introduce "post hoc rationalizations" (as Charles Siemon once called them) to justify the action.

(BTW - this is one of the most critical benefits to everyone from the Snyder decision, with all its limits. It's the record before the Commission, not some later discovered reason, that's valid. And it's why the absence of findings in those cases weakens the decision so badly.)

DOT strategy to require fights over experts?

It looks like DOT has lost a series of cases in which it tried to fight the payment of the condmenee's expert witness fees, then tried to avoid paying the attorney's fees for the hearings required to establish and collect those fees. No less than three cases in the 2d DCA over a 2 month period:
EPIC v DOT - March 5
Ruby Robbins v DOT - March 24
Bay III v. DOT - June 4

Plus a 1st DCA case on the same issue - DOT v. Nassau Partners, 29 Fla. L. Weekly D 1330 (1st DCA June 3)

It's kind of difficult to think that the DOT didn't establish a concerted strategy of trying to squeeze folks who fought them in the condemnation proceedings or to accept lower settlements for the costs.

Sign companies don't always win

The 11th rejected an attempt by a sign company to require the permitting of an otherwise non-conforming sign because of the constitutionally defective procedures in the ordinance, when the ordinance was amended immediately after the defects were pointed out to address the constitutional infirmities when the application was made and was in fact amended before motion for summary judgment. Here's the opinion.

What's interesting here is that earlier 1st amendment cases on signs seemed to indicate that an ordinance that discriminated against types of speech or didn't effectively bridle the discretion of the administrator were void to prevent the erection of the sign. That is, if the ordinance was infirm, the local government lacked the authority to deny the permit (even on construction, size, location or other less problematic grounds). This case seems to hold that when the objectionable parts are severable, there's no automatic order to issue the permit.

That being the case, the Court found that because the City amended the ordinance to make it constitutional, AND there was no likelihood that it would go back to unconstitutional procedures or discrimination, the case was moot.

Too Much Irony - US Supremes on Pledge

OK, it's completely outside land use law, but I can't help but post a link to the US SCT's decision yesterday on the Nerdlow case - here's the link. In case you haven't heard, five justices, including all of the "liberal" wing held that the father didn't have standing to bring the challenge to "under God" in the pledge because the daughter's education was placed with the mother in their custody agreement.

Here's a link to the NY Times coverage.

Here's a link to the St. Pete Times' coverage.

Supremes reject Coastal Petroleum Takings

Yesterday, the United States Supreme Court left intact a Florida state court decision that rejected property rights takings claims when the high court denied a plaintiffs' cert. petition involving offshore drilling in this opinion.

Thanks to Ralf Brookes for passing this one one to me.

Important sovereign immunity case -

The Florida Supremes issued an opinion Friday that is a MUST READ for everyone who deals with government agencies. In this opinion, the court held that FHP does not owe a duty of care to either remove stranded vehicles from the highways, OR to actually dispatch (and promptly respond)troopers based on a 911 call.

I won't go through the whole case, but I believe it to be one of the most lucid decisions laying out the analysis of the waiver of sovereign immunity I've ever read. It clearly lays out the path that the courts should take in getting to the operational vs. policy/planning level (it's after you'd find a common law duty in a non-governmental agency), and it clearly lays out the governmental duties have to flow from the established statutes and rules rather than internal operating policies (unlike civil rights cases, which go past sovereign immunity in most instances though not always the 11th amendment).

I also think that opinion lays out a better bright line than most of the sovereign immunity cases. The dissent by Justice Pariente (joined by Quince) also does a very good job of describing an alternative view of the duty issue that would have resulted in liability.

And there's a great set of string cites to cases finding liability for failure to maintain or properly operate governmental facilities.

Cutting off evidence from one side a DP violation

In another interesting case from family law, the 2d released this opinion - quashing a circuit court decision in a "shelter" case.

Essentially, the judge cut off the father during the informal hearing provided for by statute and rule, and didn't allow him to enter evidence. Rationale: 1) he was allowed to rule on written or hearsay evidence, and 2) "we don't do 3 hour shelter hearings here."

Gosh that sounds like the rationale that county/city commissioners (or actually the local government attorneys) use to justify using non-competent records (non-sworn or cross examined testimony or documents received by the planning department or planning commission) and limiting the time that an application - or 3d party - gets to present their case.

The 2d analysed this petition as one that implicated due process and held that even though the language of the rule was permissive in terms of the evidence the judge could consider, the statute was clear that every interested party could introduce evidence at the hearing. It held that:

Section 39.402 and rule 8.305 afford parents due process in judicial
proceedings in matters involving the State's temporary removal of children from the
home. In this case, the circuit court erred by disregarding the statutory and rule
provisions affording the parents a right to be heard and to present evidence at the shelter
hearing

So - here the judge erred in not interpreting the statute and rule so as to preserve the due process provided. But court clearly is holding that the failure to properly interpret the statute was a due process violation.

Implication? Where due process rights are implicated, you can't scimp on the right to be heard, even if due process allows a "less formal" hearing. I believe that commission rules that limit one side (or the other) to 20 minutes in a rezoning hearing - or 5 minutes to opponents - violate the right to be heard and to present evidence. If the commissions don't want to provide a proper due process hearing, let them use hearing officers.

Oh - that goes for the Gov and Cabinet, too, when they sit in an adjudicatory role.