Rule of Law, Schmule of Law; We're City Commissioners (Not this time) - Why We Need a State Version of U.S.C. s. 1983 & 1988

The 4th DCA granted cert quashing a circuit court order denying cert to a landowner who was, well, it gets complicated, in this opinion in BMS Enterprises v. City of Ft. Lauderdale.

The Ft Lauderdale Code allows self storage units within 60 feet of a railroad right of way and makes them a conditional use in other places. Conditional uses apparently go to the City Commission for approval. The Code also provides for determinations /interpretations by the Zoning Administrator, with an Appeal to the Board of Adjustment -- as do most local zoning regulations. It then - atypically - allows for an appeal to the City Commission, who can overturn the BoA by a supermajority.

An applicant got a determination from the Zoning Admininstrator that he could build a self-storage building on a site that was adjacent (<60') from a railroad right of way. The Administrator determined that the conditional use applied in all other locations, but that the (as the District Court later found) clear language of the ordinance permitted them within 60 feet of the RoW.

An aggreived neighbor appeals to the BoA and loses. Neighbor then appeals to both circuit court AND to the city commission (note: LACK OF JURISDICTION NOT DEALT WITH IN OPINION). The City Commission has a majority vote to overturn the BoA, but not a supermajority. It then uses the majority vote to purport to deny the landowner to use the property as a permitted use or a as a conditional use.

Yeah, it threw the law out the window and basically said - a majority is enough to deny a conditional use or adopt an ordinance, so its enough to order the Zoning Administrator and the BoA not to grant this guy a building permit, whatever the ordinance actually says. Typical arrogant and abusive behavior by Commissioners who CONSTANTLY forget the difference between their legislative and administrative/quasi-judicial powers and think that they can do whatever they want, anytime any issue is in front of them.

The circuit court let this travesty play out, apparently feeling that if the Commission had discretion to deny a conditional use for a self-storage, it had the discretion to do so even though the Administrator and BoA said it was a permitted use and the Board lacked the supermajority needed to overturn that.

The 4th quashed and remanded, clearly stung by its limits under G.B.V. which allow it only to quash and not to tell the circuit court and the City that they better follow the law as written.

The City Commission here not only violated the essential requirements of law, but any notion of due process and fair play. This was clearly an arbitrary and capricious decision that has now cost this landowner tens if not hundreds of thousands of dollars in attorneys fees and delay damages. We need a state version of the Civil Rights Act that allows abused petitioners to get damages and attorneys fees from reckless and lawless local governments and brings some respect for individual and property rights back into the system.

Holy Cow! 5th Holds that Pre-Annexation Agreement Can Violate Prohibition Against "Contract Zoning"

In County of Volusion v. City of Deltona, here's the opinion, the 5th held that the circuit court erred in not considering the pre-annexation agreement, and whether it constituted a prohibtted "contracting away of the police power" in its certiorari review of the annexation. Oh, and it also held that when a group of parcels are annexed, the "contiguity" and other criteria should be applied to the annexed territory as a whole, and not parcel by parcel.

With respect to the "contracting" issue, the pre-annexation agreement contained limits on the city's authority to rezone the property and required it to make any contiguous annexations part of the same DRI, along with some other requirements, all of which could (under the agreement) be enforced by specific performance. The court found that this raised a question of whether the agreement effectively contracted away the police power, and that the circuit court departed from the essential requirements of law in not considering these arguments.

It also held that, as a matter of law, the annexation was not contiguous. Essentially the 2000 acre plus parcel was seperated from the City, so the owner and the City got a 10 acre parcel that lay between them with 300 feet of common boundary with the City. The court held that "350 feet out of more than 20,000 cannot constitute a substantial portion of the western boundary of the three parcels annexed together."

Whoa - it's been a long time since an annexation went down, and this is a big one - the attack on the pre-annexation agreement will be a MAJOR strategy for any future litigation over a voluntary annexation, since they are based on such agreements.

A Very Interesting Case: Tolls are User Fees and Subject to Circuit Court Review

In a very interesting opinion in Gargano v. Lee County, here's the opinion, the 2d DCA overturned a circuit court's dismissal with prejudice of a multi-count complaint attacking Lee County's longstanding failure to adequately maintain the Sanibel Causeway Bridge while still collecting (and then raising) tolls -- the revenue of which then went to other county roads and project.

Yes, in another example of local commissions rampantly disregarding fairness and safety in order to avoid raising taxes to address existing infrastructure deficits, the Lee County Commission for years has helped to balance its road program on the backs of Sanibel Island residents, workers and visitors by charging tolls for the only route on and off the island. Those revenues far exceeded those necessary to retire the cost of the bridge, and were clearly not used (exclusively or even significantly) to maintain the bridge. The tolls simply subsidized other users of the county road system.

The suit claimed that this violated Florida law by being an excessive toll and essentially an unauthorized tax (which Lee County can't levy). While the tolls were authorized by a statute, taxes were not, and the suit claimed that by being unreasonable and improperly used, the tolls were unauthorized taxes and therefore unconstitutional.

The County claimed, and the lower court held, that this issue was beyond the jurisdiction of the court - essentially that tolls are unreviewable if authorized at all. The 2d rejected this, finding that the "savings" appendix to Article V preserved the previous constitution's explicit grant of jurisdiction in the circuit court to review tolls.

The Court also rejected the circuit court's determination that the plaintiff, a resident of Sanibel, did not have standing. Applying the "special injury" test, it found that a resident of the island, while sharing this injury with other residents, was specially injured in comparison to the community as a whole (presumably the entire county). This is an important precedent because it establishes that an injury need not be unique or even limited to a few people in order to be "special" in the context of this standing rule.

Once it found that tolls could be reviewed, and that the plaintiff had standing, the court got stuck (see footnote 1 for a judicial admission that I've never seen before, the candor of which is one of the reasons I deeply respect Judge Altenbernd). It could not find a clear basis in law to determine when a toll is unconstitutional, given that the the constitutional right to challenge tolls indicates that they could be.

[the court also found that there was not a basis for recovering improperly charged tolls, but only a right to prospective relief; it also found that a count trying to establish that the tolls created excess costs for garbage collection paid by the plaintiff did not establish a cause of action]

But the court then lead the lower court to a possible resolution. It rejected the plaintiff's claim that the toll was a tax; instead it found that the toll is a user fee. It is a user fee despite the fact that anyone who is a resident of the island must pay it because there is an option not to live on the island. The toll is therefore like garbage and other "mandatory" user fees.

But the court did not "get" that this determination closes the circle. Under Florida law, user fees must be reasonable, AND THEY MUST BE APPLIED TO DEFRAY THE COSTS OF THE SERVICE FOR WHICH THE FEE IS CHARGED, AND ONLY THOSE COSTS. If a user fee is in excess of the costs of delivering the service, it is an unconstitutional tax. That is, while local governments and municipalities are authorized under home rule and various statutes to charge user fees, if they charge more than a "reasonable fee" (measured by the cost of delivery), the fee is unreasonable and a tax. Which is then unconstitutional.

Moreover, a fee payer has standing to bring a Chapter 86 declaratory action to determine whether a user fee is authorized and reasonable. Even more, longstanding rules on fees and special exceptions demonstrate that with certain exceptions, those who paid such unconstitutional fees are entitled to reimbursement.

SO - it will be very interesting to see what happens to this on remand.

Pure and Manifest Injustice, or, Why the Arbitration Laws Must be Amended

As someone who is constantly frustrated by the inadequate standards and processes that certiorari affords for the review of quasi-judicial decisions, I was deeply struck by the 2d DCA's willingness to follow the law into a decision that it clearly recognizes was manifestly unjust in this opinon that reinstated a clearly flawed, unsatisfactory and unjust arbitration award that happens to be so badly lacking in explanation that it is legally unassailable.

The law should not frustrate justice.

Computer Forensics Lab for FBI

FBI Computer Forensics Lab

"Identity thieves, child pornographers, hackers, fraudsters and other cybercriminals have a new foe in town: a Cybercrimes Command Center. The FBI is establishing the command center on the LSU campus, where it will be home to a task force of federal agents, city and parish detectives and forensic examiners who investigate computer-related crime. It also will house a laboratory capable of processing computer evidence for law-enforcement agencies throughout the region.

The FBI plans to spend $300,000 to renovate and equip the former Wetlands Biogeochemistry Laboratory near South Campus Drive. The 5,000-square-foot facility is expected to open sometime this fall."

Computer Forensic Services

Computer Forensic - Focusing on Linux, iPod, Xbox

Gov't Cyber-sleuths Focusing on Linux, iPod, Xbox

"Cyber-security and computer experts from the government and law enforcement are increasingly concerned with malicious code that runs on Linux and Apple Computer Inc.'s Mac OS X operating systems and threats posed by devices such as iPods and Xboxes.

Intensive courses on the Mac OS X and Linux operating systems, as well as iPods, were just a few of the offerings at a recent cyber-security conference sponsored by the U.S. Department of Defense. Network administrators and cyber-investigators say they are increasingly being called on to investigate compromises of non-Windows operating systems and to analyze portable devices such as iPods, according to interviews with attendees by eWEEK.

Two, two-day courses at this year's conference taught attendees techniques for forensic analysis of Mac OS X and the open-source Linux operating system. . . .

[A]lternative computing platforms will come to play a bigger role in cyber-crimes and criminal investigations in the years to come. Devices such as the PlayStation Portable, which has a large hard drive and wireless capability, will become more common and more capable of carrying out or being targeted in online attacks . . . ."

Computer Forensic Services

Agency Interpretation and Inconsistent Application and Opinions

OK, here's an editorial opinion: give administrative agencies (including local commissions when sitting in administrative/quasi-judicial capacities) statutory authority with discretion or lack of criteria, and they end up abusing the people they regulate. Not a function of bad faith, evil intent, or anything nefarious - it's simply the way that it works because the folks who are regulated don't know what they can or can't do until the agency tells them, and the agency had every motivation to just say no and put the time, cost, effort and risk of fighting on the private party.

Oversight of agency action by administrative law judges (in the case of the APA) and the courts are the citizens' only defense against abusive agency action or inaction. And the doctrine of that agency interpretations are given deference is a key limit on judicial oversight and a critical factor in agency abuse.

In a number of recent cases documented here, the courts have clarified the circumstances under which deference to agency discretion is warranted. These have clarified that deference is due ONLY when there the statute or rule is ambiguous (and of course limits on the delegation of legislative authority are in turn suppose to limit the ability to legislate ambiguous standards). These decisions hold that where the language is not ambiguous, de novo judicial review allows the court to apply its own interpretation of the statute, rule or contract and to reject a contrary interpretation. These decisions make clear that deference to agency interpretation is a kind of rule of statutory construction used when the application of those rules is necessary.

But there are a number of older cases out there that simply recite that agency interpretations are to be deferred to if "in the range of permissible interpretations." These decisions defer to the agency unless the agency interpretation is clearly inconsistent with the statute. That line of cases in effect uses the "rule" to AVOID applying rules of statutory construction.

So there's a large -- REALLY LARGE -- are of confusion in when and how the doctrines apply, and a gulf between the results you get depending on which approach to the rules apply.

In Lakeland Regional Medical Center v. Agency for Health Care Administration, here's the opinion, the 1st DCA recited existing language in another opinion to simply continue the confusion. It determined that an agency interpretation of a statute was permissible and would be deferred to without ever analyzing whether the language was ambiguous and whether it was appropriate to apply the "deference" rule.

This is an area of the law that creates unpredictable results, unnecessary confusion, and abuses of agency discretion (measured from a public policy, rather than legal point of view). The legislature should step in and provide guidance in both the APA and in the interpretation of local administrative rules/ordinances. Of course, the latter would require a statute setting forth rules for the general review of local administrative decisions. Oh! Here's one ready to go!

You Do Get Multiple Chances to Get the Record Right on Cert

In this opinion, in Dragomireki v. Town of Ponce Inlet, the 5th reminded the circuit court that the point of the appellate rules is to facilitate effective review, not create hoops to throw out cases.

The convoluted case involves the attempt by the Town of Ponce Inlet to force a guy to tear down his unfinished house becuase of delays and difficulties in finishing it. The man filed a pro se writ of cert against a negative Board of Adjustment and Appeal decision, but didn't file the appendix. Got an order, got an attorney, who then got an extension, filed the appendix and filed an amended petition.

Court didn't like the citations or the Appendix and instead of ordering the Petitioner to file a more complete record (which actually it couldn't do under F R App P 9.220, but if the court wanted it . . . .) it dismissed the petition (which effectively is with prejudice because of the time issue).

Uh, uh, said the 5th:

Although the circuit court noted that dismissal as a sanction is to be used sparingly, the circuit court dismissed the petition, saying that the record was incomplete, confusing and contradictory. Although we do not fault the trial court's frustration, we conclude that, under these circumstances, the sanction of dismissal was too severe. The dismissal deprived the petitioner of the only judicial review of the administrative order of the Town of Ponce Inlet requiring that he demolish his partially built home for building code violations.

It is often very difficult to prepare a proper record in an appellate proceeding such
as this. Municipal boards are not set up well for creating and organizing a record for
appellate review, and this dispute has apparently been raging for over three years,
including eight hearings and voluminous correspondence. It is not uncommon to see
confusion and contradiction, but based on our review, it does not appear that the record was so "incomplete, confusing and contradictory" that the appeal could not proceed. It is the petitioner who has the right to select the issues for review and who has the burden of providing a record adequate to demonstrate error. If petitioner's record is incomplete, he will not be able to demonstrate error and he will fail on the merits.

Yet another reason why we NEED A STATUTE THAT PROVIDES CONSISTENT STANDARDS FOR THE CONTENT OF THE RECORD, PLACES THE RESPSONSIBILITY FOR ITS CREATION AND PRESERVATION ON THE ADMINISTRATIVE TRIBUNAL, AND PROVIDES FOR APPEAL, RATHER THAN CERTIORARI, AS THE AVENUE FOR REVIEW!!!

Sometimes It Comes Out Right and Justice is Done - In this One, DCF Gets What's Coming to It

I'm generally pretty depressed about the state of justice in the courts, but this opinion from the 5th DCA lifted my spirits a bit - though it's not a land use case.

Essentially, DCF unilaterally and contrary to the available evidence decided that a disabled woman's mom couldn't care for her, changed the disabled woman's care plan (unlaterilly), mailed the notice late, used their inability to react to the late notice to change her status, and then refused for something like a year to give her a hearing, then convinced the (non DOAH, captive DCF) hearing officer that "back payments" for the improperly discontinued care weren't available (though the clear statutory and caselaw provided it).

The hearing officer reinstated the mother's care but didn't provide the back benefits. Also held that attorneys' fees were unavailable.

The 5th enforced the statute's back benefits AND found that the woman was entitled to a seperate hearing before a DOAH administrative law judge for trial level attorney's fees AND found that she was entitled to appellate attorney's fees because of the agency's absolutely clear and indefensible bad behavior.

Computer Forensic services - Child porn cases on hold

"Shortly after 1:30 a.m., "lickercat1982" uploaded an image to a Yahoo chat room. The image posted on the chat room "teen_girls_having_fun" was that of a naked young girl in what was described as a pornographic photo. Yahoo! Inc., the Internet provider, reported the discovery to the National Center for Missing and Exploited Children as required by federal law.

It would take nearly two years after that report and countless hours of investigation before the Plymouth man behind the screen name "lickercat1982" would appear in court to face two counts of dissemination of child pornography. That lag, officials say, will only get longer. As authorities field a growing number of reports of suspected kiddie porn online, investigators say it is taking longer to get the right evidence for court action due to a shortage of computer forensic experts in the field."

The Enterprise

Computer Forensic Services