Notice and a hearing does not a quasi-judicial proceeding make

In this opinion involving a bid challenge, the 3d DCA demonstrated that rigorous analysis of the nature of delegated authority sometimes prevails, even in the post-Snyder era of slipshod "functional analsysis."

The court held that a decision on a bid challenge was not quasi-judicial and reviewable by certiorari simply because the process provided for a noticed hearing by a hearing examiner prior to a final decision by the Board of County Commissioners. Instead, the court found that the decision was an "executive" administrative decision, challengable in a de novo action. It therefore found that the Appellate Division of the 11th Circuit was correct in transferring the matter to the civil division for trial.

While the court did not lay out the complete rationale (citing to other cases), it is clear from the context that the decision is executive because the decison of the Board is not based on the evidence produced at the special master hearing, but is effectively de novo based on the evidence, argument, and the County Manager's recommendation. The guiding ordinance does not meet the tests laid out in DeGroot v Sheffield and Bloomfield v Mayo for a delegated quasi-judicial proceeding.

A victory for clear thinking and vigorous analysis.

Temporary moratorium on approvals doesn't violate due process/not a taking

In this opinion, released on September 29, the 4th DCA held that a nine month moratorium placed on approvals of multi-family developments while a review of the comprehensive plan and land development regulations did not violate substantive due process and wasn't a taking.

On the due process end, the court held that there was a substantial nexus between the moratorium and the permissible public purpose of maintaining the status quo, agreeing with the trial court when it determined that "the temporary moratorium was an important land-use planning tool . . . to ensure that the community's problems were not exacerbated during the time it takes to formulate a regulatory scheme."

On the takings issue, the court predictably (but without much analysis) relied on Tahoe-Sierra Pres. Council v. Tahoe Regional Planning Council, 535 U.S. 302 (2002) for the proposition that temporary moratoria do not constitute a taking.

The covenent can be mightier than the LDR

In this case, released in late August, the 2d DCA reminds us that covenants restricting use are enforceable as long as they benefit the rest of the properties, even if conditions change.

Citing an earlier case, the court provided this standard for when a property can be relieved of the burdens of a covenant:

in Essenson v. Polo Club Associates, 688 So. 2d 981, 984 (Fla. 2d DCA
1997), this court held that the party seeking to be relieved of the deed restriction
hadfailed to carry its burden of proof by showing that "the change occurred,
(1) after theagreement, (2) without any fault on its part, and (3) that the
change destroyed all valueof the covenant," in spite of the fact that the
plaintiff demonstrated changed circumstances resulting from a rezoning
affecting its property.

The court found that even though the property in question here fronted a major street and had been rezoned to support the medical office desired by the new owner, the covenant still had benefits for the other owners in the subdivision.

Fla S Ct: Fla Religious Freedom Restoration Act broadens protection - many zoning restrictions probably improper

In this opinion handed down on Thursday, the Florida Supreme Court analyzed the requirements of the Florida Restoration of Religious Freedom Act to hold that facially neutral regulations that either prohibit an activity required by a religious belief or require an action prohibited by religious belief are subject to a "compelling state interest" and "least restrictive means" test.

In the process, it clearly indicated its belief that zoning regulations that require special exceptions for the location of churches - and by implication, regulations against holding religious services in homes or other places - are subject to strict scrutiny under the Act. Wake up folks - this Act provides for positive suit against government actions AND attorney's fees against the government for successful litigants.

As is so often the case, this relatively landmark decision came up under rather ridiculous facts: a challenge to a Boca Raton ordinance governing the municipal cemetery that prohibited vertical headstones and other markers. Yes, a group of people claimed that a restriction on placing crosses upright rather than horizontal was a substantial burden on their exercise.

The Court ultimately rejected that claim, but it first both interpreted the requirements of the Act and established the test for a "substantial burden."

With regard to the bringing and trying of claims:

As noted above, the Act specifically mandates that the strict-scrutiny standard be applied irrespective of whether or not the burden results from a rule of general applicability. See § 761.03, Fla. Stat. (2003). Under the test articulated by the FRFRA, the plaintiff bears the initial burden of showing that a regulation constitutes a substantial burden on his or her free exercise of religion. See § 761.03(1), Fla. Stat. (2003). Once that threshold determination has been made, the government bears the burden of establishing that the regulation furthers a compelling governmental interest and is the least restrictive means of furthering that interest. See § 761.03(1)(a)-(b), Fla. Stat. (2003). Thus, the plaintiffs must demonstrate that the government has placed a substantial burden on a practice motivated by a sincere religious belief. See, e.g., Weir v. Nix, 890 F. Supp. 769, 783 (S.D. Iowa 1995). The Southern District specifically noted: "It is undisputed that the plaintiffs placed vertical decorations on their [c]cemetary plots in observance of sincerely held religious beliefs." Warner, 64 F. Supp. 2d at 1277.10 show that collection and payment of taxes violated church?s sincerely held beliefs); Bob Jones Univ. v. United States, 461 U.S. 574, 603 n.8 (1983) (noting evidentiary record which showed that the challenged practices of the university were based on a genuine belief that the Bible forbids interracial dating and marriage); Wisconsin v. Yoder, 406 U.S. 205, 215-19 (1972) (examining the record, testimony of expert witnesses, and religious texts to determine whether compulsory education violated the Amish right to free exercise of religion). Since appellants have demonstrated that their religious beliefs are sincere, the next issue is whether the government's regulation constitutes a substantial burden on the free exercise of religion.

The Court had (first, in this case) articulated the test for a "substantial burden":

Thus, we hold that a substantial burden on the free exercise of religion is one that either compels the religious adherent to engage in conduct that his religion forbids or forbids him to engage in conduct that his religion requires. See Mack, 80 F. 3d at 1178. We acknowledge that our adoption of this definition may occasionally place courts in the position of having to determine whether a particular religious practice is obligatory or forbidden. However, we conclude that this inquiry is preferable to one that requires the Court to question the centrality of a particular religious belief or negates the legislative requirement that only conduct that is substantially burdened be protected by strict scrutiny.

The Court then analyzed the regulation and found that while the laying of religious symbols was protected religious belief, restrictions on the orientation did not substantially burden it and that the specific regulation was not subject to strict scrutiny, or the compelling state interest/least restrictive means test.

But, in a critical footnote, the Court indicated that regulations that restrict religiously motivated activities - including the location of churches - must be subject at least to analysis under the tests laid out in this case. The critical language is in this footnote:

11. Both the Third and Fourth District Courts of Appeal have considered the FRFRA. In First Baptist Church v. Miami-Dade County, 768 So. 2d 1114 (Fla. 3d DCA 2000), the Third District considered whether the county's decision to deny the church's request for a zoning special exception violated the FRFRA. The Third District found that the county did not have the burden of showing it had a compelling interest in denying the church's zoning request. The Third District, relying on United States Supreme Court precedent, reasoned that neutral laws of general application were not required to be justified by a compelling governmental interest. Since the regulation at issue regulated only conduct and was entirely secular in purpose and effect, the Third District held that the zoning board' decision did not violate the FRFRA. Id. at 1118.
Similarly, in Abbott v. City of Fort Lauderdale, 783 So. 2d 1213 (Fla. 4th DCA 2001), the petitioner argued that the city's denial of a permit to conduct a feeding program for the homeless violated his rights under the FRFRA. However, the Fourth District accepted the trial court's findings that the city's rule infringed upon the petitioner's religious rights; thus, it required the city to show that it had a compelling interest in selecting an alternate site. Accordingly, the Fourth District remanded the case for the trial court to determine whether the alternate site selected by the city represented the least intrusive means of furthering the government's compelling interest. Id. at 1215.
We note that the Third District?s analysis in First Baptist is inconsistent with our opinion in the instant case. Accordingly, we disapprove the opinion in First Baptist.

The Court is holding that the "neutrality" of the zoning law doesn't get it past the FRFRA - and by implication that such a restriction might substantially burden religious exercise.

Here are some predictions:

1) Any restrictions on meeting and conducting services in the home of a religious adherent will be struck. This is particularly important to orthodox Jews, who have been the subject of a number of actions to prevent exactly this kind of service. I'm betting that any home legitimately used as a residence will also be permitted to be used for services without being zoned as a church.

2) Zoning ordinances that prohibit churches in residential districts and special exception ordinances that are used to limit or prohibit the location of churches in residential areas are going to be struck as substantial burdens. Special permit/use regulations that require structures used primarily for churches or church purposes to meet "standard" types of zoning requirements (height, setbacks, parking) will be held not to substantially burden exercise.

3) We're going to see inconclusive and contradictory results in two major areas: the use of church buildings for other religiously related purposes (schools, etc.), and limitations on the height and use of minerets at mosques. I would guess that most restrictions on non-ceremonial use will be found not to substantially burden religious exercise, but that some folks are going to win on the ability to have schools in church buildings. I also guess that mosques will win the right to use humans in minarets to call the faithful to prayer, but not recordings or amplifiers. I also bet we're going to see wildly erratic decisions on the question of whether on-street parking restrictions can be used to keep people from parking at other people's homes to attend services.

4) Finally, I predict that most local governments will flaunt this ruling and won't review their zoning codes and modify them appropriately. They will continue to apply zoning restrictions that are understood to be substantial burdens and will make religious adherents fight over the application of this decision. Given the way that local governments have completely ignored the clear prohibition against discriminatory regulations against modular and manufactured housing, we can expect no greater respect for the rule of law in this case.

Here's looking for new and fun litigation!

Robert

Charters trump ordinances and must be implemented to achieve their intent.

It's always an interesting dance to see how local governments try to manage pesky constitutional, statutory or charter provisions that limit their discretion.

Last week, the 4th DCA released this opinion , which held that the City of Pompano Beach couldn't get around a charter requirement to hold a referendum before selling lands with certain uses simply by reclassifying the land via an ordinance. The Charter required a referendum, but provided that the initial classification of property would be by ordinance. The City wanted to sell a beach parking lot that had been classified as recreational (and covered by the referendum requirement) to the redevelopment authority. It didn't want to hold the referendum. So it adopted an ordianance redesignating the beach parking lot out of the recreational designation. The court took the common sense approach that the City's action would have completely negated the purpose of the Charter provision and held that the once designated (even if by ordinance), the Charter prohibitted redesignation for the purpose of avoiding the Charter.

Local powers, code enforcement and "non conforming uses"

In the aftermath of the Rollins v. Key West case, which established that rental status could end up a non-conforming use that couldn't be extinguished by a change in zoning, here's a case that shows the limits of that reasoning: you don't get rights to maintain a nuisance, even a legislatively defined nuisance.

In this opinion, issued last week, the 3d DCA determined that a dog owner didn't have any vested right to keep four dogs after the Town adopted an ordinance that prohibitted him from keeping more than two. The case involves a challenge to an injunction forbidding the Appellant to keep more than 2 dogs, and appears to be (but we don't get it from the opinion) founded on code enforcement actions.

The dog lover first cited a provision of the Town code that prevented the Town from making illegal anything that was legal when the code was adopted - the court cut this off by finding that the provision only applied to the original adoption of the code (circa 1947).

But here's the more important part of the case - the constitutional challenge:

Welsh argues that ordinances or laws which take away existing rights are substantive rather than procedural in nature and cannot be applied retroactively. See Serna v. Milanese, Inc., 643 So. 2d 36, 38 (Fla. 3d DCA 1994); Winston Towers Ass’n, Inc. v. Saverio, 360 So. 2d 470 (Fla. 3d DCA 1978). Although this is a correct statement of law, we conclude that it is inapplicable in the context of legislation enacted pursuant to a government’s police power for the health and welfare of the
general populace to abate a nuisance. Indeed, the cases relied upon by Welsh were not even decided in this context. See Serna v. Milanese, 643 So. 2d at 37 (considering whether section 673.4021, Florida Statutes (1993), which absolved corporate
officers from liability for signing corporate checks, could be retroactively applied), Serna v. Arde Apparel, Inc., 657 So. 2d 966 (Fla. 3d DCA 1995) (same); Winston Towers, 360 So. 2d at 470-71 (finding amendment to private condominium ssociation’s bylaws banning all pets, including any pet acquired as a replacement of a prior pet not registered as of a date one year prior to amendment, to be void as an ttempt to impose a retroactive regulation). For this reason, Welsh’s reliance upon
these decisions is misplaced.

In Knowles v. Central Allapattae Properties, the Florida Supreme Court expressly reaffirmed the principle that although constitutional rights may not be transgressed by the sovereign, the possession and enjoyment of all rights are subject to the
paramount police power of the state to do that which is necessary to
secure the comfort, health, welfare, safety, and prosperity of the people:

It is a well settled rule that all property is held subject to the right of the
State to regulate it under the police power in order to secure safety, public welfare, health, peace, public convenience and general prosperity. The rule is based upon the concept that all property is held on the implied condition or obligation that its use shall not be injurious to the equal rights of others to the use and benefits of their own property. The public interest is paramount to property rights. The right of the State to regulate a business which may become unlawful is a continuing one, and a business lawful today may, in the future, because of changed conditions, the growth of population, or other causes, become a menace to the safety and public welfare, and the continuance thereof must yield to the public good. Knowles, 198 So. at 823 (citations omitted).

While property rights hardliners will gnash their teeth at the language, it's a pretty longstanding rule of law. On the other hand, while given the special issues of dogs and the cited history of regulation of keeping them provides a substantial basis for the legislative determination in this case that keeping more than 2 dogs is a nuisance, I do worry that the court's limited inquiry into the factual basis of the determination leaves way too much potential discretion for local governments to adopt completely arbitrary regulation by simply stating that the purpose is to regulate a nuisance.

Secret deliberations after hearings violate the Sunshine Law

A couple of months ago I linked an opinion in which the 4th DCA found that the way that Palm Beach County handled an employment termination decision violated Sunshine.

The basic facts appear to be that a "hearing" before a designee of the County Administrator was held, with a number of other department heads, etc., in advisory roles who could participate. After the hearing, the employee and the employee's attorney were forced to leave the room while the decision was deliberated.

This violated the Sunshine Law because in the hearing context, the group functioned as a committee for participation and deliberation, even if the authority was vested in the single person of the delegee.

On motion for rehearing, the 4th released this opinion re-affirming the result and bolstering it against the County's complaint that the decision made any private consultation between a decision maker and staff subject to Sunshine.


The lesson: committees with authority can be created by practice, and government officials should beware of using artifice and "hide the ball" games to try to cloak their actions from scrutiny. It should be obvious that the Palm Beach County procedure was to create a star-chamber, where a group of "judges" would sit on an employee's fate, without the procedural and other safeguards that should attend such a proceeding.

If the administrator or her designee needs the "advice" of other department heads over an employment action, she has several options: she can pass around a summary and ask for a memo; she can have the head testify and be cross examined by the employee's attorney, or she can make the person a "hearing officer" to hear the testimony and render an opinion. What she can't do is play a game where a "fair" hearing is held based on closed-door deliberations in which there is a pretense that the person isn't really part of the decision making process [and let's just laugh in advance of any claim that because judges can confer behind closed doors, these folks should be have the same privilege].

Important 1983 case involving code enforcement

The Fifth DCA just issued this opinion overturning a circuit court dismissal (with prejudice) of a s. 1983 claim and declaratory actions against key components of chapter 162 - code enforcement.

Most practitioners I know think that the statute is a procedural mess. In particular, the statute allows the code enforcement board or a special master to impose fines in an un-noticed hearing, based only on a code enforcement officer's affidavit, after the "violation hearing" has been held and the time for correction has run. Essentially, this gives the "violator" no fair chance to contest the code enforcement official's opinion as to whether actions (if any) taken to correct the violation have been adequate. It also allows the CEB/SM to enter required findings without any means to challenge them.

The 2d DCA found that the statutory provisions violated due process last year in the Massey case, but determined that if local governments provided some kind of notice and hearing before levying the fines, the statute could be saved.

Other problematic provisions of the statute include the "running fine" provision - which allows the CEB/SM to levy "prospective fines" on a daily basis until the property comes into compliance. While it may be acceptable for a "violator" to be found LIABLE for fines until compliance is determined, the burden of proof to demonstrate that the property in fact was in violation on a particular day must remain with the government.

This case is attacking the root problem facially - it will be interesting to see what happens. The 5th rejected several defenses raised by the county and accepted by the circuit court:

1) it rejected the defense that the Plaintiffs' "bald claims" of a constitutional violation were insufficient to establish a 1983 case - essentially you have a government actor (county), acting under color of state law (ch 162 and the local ordinance), and a deprivation of property (the fines) and that's enough;

2) it rejected Orange County's "Matthews test" defense - where the County (straightfaced) argued that the risk of erroneous deprivation was small because the code enforcement officers are "trained" and because some kind of appeal is available and it also rejected the claim that holding a hearing to establish the fines would be unduly burdensome (citing Massey);

3) In the most important aspect for other litigation (the earlier points were pretty obvious, despite the circuit court buying into them), it also rejected the claims that failure to exhaust and res judicata prevent the claim from being brought collaterally. The County claimed that the availability of appeal meant that these claims had to be litigated through the administrative process - the court rejected this under a key haven analysis (option to go either way) and noted that facial constitutional challenges can be brought through dec. actions. In the related argument, it also rejected the claim that the plaintiffs were cut off by res judicata because they COULD have brought the action in the administrative proceeding and appeal. The court, citing Albrecht, held that because there are different elements to the causes - e.g. different facts need to be proved for the constitutional challenges than for the code enforcement action - res judicata didn't bar the collateral proceeding.

WOW - this addresses one of my big concerns after Omnipoint - that the courts would hold on one hand you would be obliged to raise constitutional issues as an affirmative defense (to avoid res judicata issues), but that on the other you wouldn't be allowed to try them (because the admin proceeding/officer can't determine constitutional issues). This case clearly holds that you can attack the facial and even as applied aspects of a statute that has been applied to you outside the narrow parameters of the process provided.

The other way to look at this is that McKinney v Pate's determination that you only get the process given by the statute doesn't hold where the statutory process creates a deprivation of property not created clearly by the statute itself. I'm sure we'll have more on this later :)

Anyway - big case, big implications for code enforcement and constitutional challenges to local administrative ordinances.

A different standing issue - the Polk County injunction controversy

There's been a fair amount of buzz around this article from the Ledger about the circuit court issuing an injunction to stop the County Commission from hearing a landfill issue. Here, as a famous radio commentator might say, is the rest of the story (from David Smolker, the landowner's attorney).

Turns out that the Polk County Code puts hearing and decision authority over some development orders with the Planning Commission. It allows affected parties to appeal to the County Commission. The provision is for a record-based appeal (not a de novo hearing); the only remedy provided by the local ordinance is remand to the Planning Commission . So the ordinance is creating a very limited role for the County Commission and clearly intends this to be an appellate remedy. It also provides for what amounts to motion practice in local administrative matters.

So the landfill folks show up at the Planning Commission, make their case, and get approved. A number of local residents appear to voice complaints; the person who later files an appeal does not. Apparently most of the complaining "neighbors" live at least a mile away from the site.

In any case, the Planning Commission approved the DO. Then, the "neighbor" appealed. Landowners filed a motion to dismiss the appeal for lack of standing on the basis that the appellant had not established any basis for which she was adversely affected on the record. The County Commission schedules a hearing on the motion and the entire opposition shows up. The appellant pleads the usual stuff, and despite the ordinance, the County Commission votes to deny the motion and indicates that its not only going to schedule the appeal, it's going to hear new evidence.

Landowners file in court asking to for an injunction against the hearing. They file a complete record with the suit, so the court could have reformed the action into either a petition for cert or for prohibition. The essence of the matter is that the County Commission is violating the ordinance and if it holds the "appeal hearing" that it intends, the landowners' will be prejudiced, not to mention forced to spend thousands of dollars again on experts, etc. The Court agrees that no reasonable interpretation of the ordinance allows the Commission to hold a new de novo hearing on the matter and that the appellant doesn't have standing to appeal based on the record, so it issues the injunction.

I think this is a pretty reasonable result, with one caveat. Unlike the comp plan challenge cases, there isn't some (new) "shifting burden" of standing - though the Planning Commission clearly hears all comers. However, I believe that as a matter of course, bodies who are holding quasi-judicial hearings should have clear and easy to use guidelines for citizens who appear before them to help them properly present testimony and preserve their rights.

In the 120/APA setting, most folks are represented by attorneys, but in local practice, that's not the case. We can argue all day and night as to whether appearance for another in a qj setting is the unlicensed practice of law (I think it should be, but I'm prejudiced on this by seeing how many zoning/SE proceedings have been mangled by non-attorneys), but today it is permitted. And pro se representation is permitted in any case.

One of the reasons I strongly believe that we need a statewide, uniform local government procedures act is that we could have meaningful guidelines and training for citizens who appear in these settings. Such an approach would make the kind of imbroglio we're seeing here much less likely.

4th DCA - stipulation to standing doesn't get you to appeal in plan challenge

In this opinion, released yesterday, the 4th DCA not only reiterated its opinion in O'Connell that the petitioner (same parties, different amendment) standing to appeal the amendment to DCA didn't guarantee them appellate standing, but addressed the "stipulation" issue.

Here's the language:

Appellants argue in the alternative that the appellees, by stipulating to their
standing at the administrative level, were either stipulating to standing to
appeal or waived the issue. Our reading of the transcript, however, leads us to
conclude that the defendants were only stipulating to standing at the trial
level. In the discussion, counsel for appellants referred to the standing as
being under Chapter 163, and opposing counsel agreed there was standing ?for
this venue.?

Accordingly, as we did in O?Connell, we dismiss the appeal.

While you can argue that the Plaintiffs fell into an obvious trap (and a few folks that I respect have made that argument to me), I think it's bad law for the DCA not to remand to allow them to add the evidence needed to establish their appellate standing. As I stated before, this approach force Plaintiffs to litigate issues in the administrative forum (the impacts of the development and of losing) that aren't necessary and therefore which could be excluded for relevancy.

That result - while logical under the circumstance - would violate due process. The plaintiffs MIGHT have had constitutional level standing to challenge the plan amendment, but under the Act, they're forced to litigate the issue in an administrative forum. Fair enough. But due process requires that litigants in an administrative forum have at least one meaningful avenue of judicial review. The 120.68 standing provision is probably OK constitutionally in most circumstances - you have to show some standing and affected interest to have a right to due process. But if you're forced to litigate in an administrative setting and don't have a fair opportunity to demonstrate standing for getting judicial review, you've been denied due process AND access to the courts.

In the meantime, if you're involved in a comp plan challenge, don't just allege statutory standing, go full out and allege "substantially affected" status. I think you still can take advantage of the general "zone of interest" decisions, but plead all kinds of impacts on those interests. Throw in the kitchen sink and make the local government either stipulate that your mother's going to be killed in a car wreck, run out of drinking water, or have her sewer pipes back up if the amendment is passed (as appropriate) or threaten them with three days of your clients testifying as to the horrors of the resulting unchecked growth and environmental damage.

And if you're in Palm Beach County, I guess I wouldn't trust any stipulation on standing that the local government makes - put on your proof and make sure it's in the record.

To support a contempt enforcement, orders must be clear

This opinion from the 2d DCA reminds us that court orders must be clear before they can be enforced by contempt.

How clear?

Having read a bunch of these cases, I think that the duties or prohibitions have to be almost but not quite as clear as those needed to support mandamus - e.g. clear, directive shall or shall not language with clear, plain language of what should or should not be done. (though don't have a really good case for the proposition - if someone else does, please share).

Why is this important? Ever read the kind of "enforcement order" that lay Code Enforcement Boards tend to write (even with legal help)?

I saw one that basically said - "stop violating this provision of the code and don't violate any others." That case involved a determination that landowners couldn't possess "Class II" wildlife (stuff that needs special permits) in an agricultural zone district (yeah, right, go figure). But there were probably 20 different species of animial other than goats, chickens and cats, including iguanas, jungle cats, and other exotic but non-regulated animals. Which would violate? What, specifically, did the client have to get rid of? The order didn't say.

That kind of order shouldn't support a code enforcement fine, no less an injunction enforcing the order. But it happens all the time.

But - Practice Tip - remember that judges and administrative bodies do have the inherent authority to correct errors in their orders, at least until the time for appeal or cert runs without a challenge; i.e. you can ask for a modification.

And you need to think about doing it - if you appeal an enforcement action brought against you in court on a "bad" order, you can probably raise this, but if you try to appeal or cert it, it's possible that you could get bounced for not exhausting administrative remedies (even unclear and unbounded ones).

1st DCA - statute can create "established law" for mandamus

In this opinion , issued last week, the 1st DCA held that in the context of a mandamus action, the court can look at and interpret an applicable statute to determine whether "established law" (i.e., the statute) creates the clear legal right and legal duty that must be present.

Seems that there's a statute that requires (shall languge throughout) the Dep't of Corrections to help inmates being released get the paperwork together that's necessary for the restoration of their civil rights.  They just didn't do it and in fact appear to have refused to comply with the statute.  (for those of you old enough to remember early Steve Martin:  Whoops, I FORGOT to pay my taxes; well excuuuuseee meeee!) The Florida Caucus of Black Legislators went in on behalf of the inmates to get an order compelling the Dep't to do its duty under the statute.

Department argued that they didn't have to, (nyah nyah nyah - you can hear the temper of the Department's brief in eh Court's opinion):  the statute has some ambiguities and they apparently claimed that because they were part of teh executive branch and because the governor and cabinet have sole (consitutional) authority over grants of clemency/restoration of rights, they didn't have to follow this statute and the legislature and courts would be violating the seperation of powers if they meddled.

The Court held that 1) it's OK for a reviewing court to resolve ambiguities in order to determine whether a statute provides clear legal duties, etc. -- the existence of DISCRETION, not ambiguity is what would relieve the Department of a duty.

It also instructed the Department that as part of the executive branch it was under the rule of the legislature and that even if clemency was discretionary and vested with the Gov, ensuring that inmates got applications and help in filing them was NOT any kind of violation of the seperation of powers.

Good case for land use attorneys to put under your belts for two reasons:  1) mandamus is not like a 1983 action where you need a court case dead on point before an official is going to be liable; if a statute, rule or ordinance create a "shall" kind of duty, that's enough; and 2) a mix of contingent and obligatory duties in the law doesn't negate the duty, even if a court is going to have to interpret the statute to resolve ambiguities or contingencies (example:  "if the application is found to be complete, the xxxx shall make a determination within 15 days" - contingent but mandatory).

sales tax amendment down, too

The sales tax amendment - aimed at establishing a services tax and limiting many of the exemptions on good - was struck because it violated the single subject requirement - here's the opinion.

Homestead amendment increase down in flames

Many folks may have seen this, but here's the Fla Supreme Ct. decision striking the homestead amendment due to misleading ballot summary language -- summary claims "tax relief" when local governments might just raise the millage rate.