Friday, July 23, 2004

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).

Wednesday, July 21, 2004

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).

Monday, July 19, 2004

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.

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.

Tuesday, July 06, 2004

"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