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.