Due Process in Driver's License Proceedings - NOT

The 3d DCA overturned the quashal of a DMV driver's license suspension in Fla DMV v. Jones, here's the link. The Department (in a hearing before a non-lawyer, department employee) apparently suspended the license based only on the officer's arrest report. The issue was probably cause for the stop, and the appeal was over whether the lower court had reviewed the statements in the report using a "subjective" versus "objective" test.

But the real issue is that people's licenses are being suspended based only on documentary evidence without the right to confront. The idea that these arrest reports are self-documenting and can be introduced without the sworn testimony of the officer (absent one of the various exceptions to hearsay, etc.) flies in the face of any kind of democratic justice.

Think about it: an administrative agency suspends your license based on a document, then gives you a "hearing" in front of one of its employees - who has no training in the law -- and then rests its case on the document, with no meaningful opportunity to challenge the contents of the document. In other words, in any meaningful way, the arresting officer IS the sheriff, judge, jury and executioner (since the officer siezes the license), because there is no meaningful way to challenge the officer's action.

Good bye justice and freedom. Hello Gulag.

2D DCA Upholds Blight/ED Decision in Probably the Last CRA Use of Eminent Domain

As reported earlier, the Legislature enacted a wildly over-reactive statute limiting the use of eminent domain by local governments and CRAs.

In this case, Fulmore et al v. Charlotte County, here's the link, the Court upheld the trail court's affirmance that the County's determination of blight was valid under the Community Redevelopment Act. It also held (consistent with past decisions) that the elimination of blight (as defined by the statute) had a valid public purpose.

One sore spot - the plaintiffs had challenged the statute as impermissibly vague because several of the criteria are vague. But the challenge and the decision are predicated on the wrong legal arguments regarding vagueness.

The court held that some of the criteria are objective and then stated that the governing law is that if some valid criteria are available, the entire statute can't be struck for vagueness - i.e., no facial challenge:

Â?[A] facial challenge for vagueness will be upheld only if the enactment is impermissibly vague in all of its applications.Â? Brown v. State, 629 So. 2d 841, 843 (Fla. 1994) (citing Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495-96 (1982)). The LandownersÂ? acknowledgement that several of the blight factors are objective and quantifiable necessarily means that section 163.340(8) is not vague in all of its applications. Thus, their facial constitutional challenge fails.

The problem with this is that the court is citing criminal/1st amendment case law instead of regulatory caselaw. A regulation is impermissibly vague if it vests unbridled discretion in the administrative body implementing it. (OK, I'll go get all the cases later and cite them, but, really, that's the law.) There are actually tseparateate but related probleproblemsems: first, that such a delegation puts legislative discretion into the hands of the agency, and, second, that it creates unreviewable decisions when implements.

This is a big deal when you get to regulatory applications of law. No agency should be able to rely on a vague standard to deny a permit simply because there are objective standards in the ordinance, statute or rule. That's true whether the standard is a comprehensive plan element or a criteria for a special exception.

But this is irrelevant to a CRA/blight determination, for one, simple reason: The Community Redevelopment Act vests LEGISLATIVE power, authority and discretion into the local government to make the blight determination. It's NOT a grant of administrative authority. This gets confused today because local governments have broad home rule powers, but back when the Act was adopted, it granted legislative authority and discretion. And the "blight" finding need not be supported by competent substantial evidence (an ADMINISTRATIVE standard), but only by some measure of evidence such that the determination is not arbitrary and capricious. (again I don't have the cite readily available, but I'm pretty sure that there was a Jacksonville case from the 50's or early 60's dead on this point).

So it seems that the entire case was litigated on a badly mistaken view of the structure of the CRA, leading to a mistaken notion of which "vagueness" test should apply, and also of the very nature of what kind of evidentiary inquiry was appropriate.

So, the case is probably irrelevant to future applications regarding eminent domain, but could leave a bad precedent on the vagueness issue.

Initiative is Not Available to Adopt/Amend LDRs! and Charter County Plans Can Supercede City's

In Seminole County v. City of Winter Springs, here's the opinion, the 5th DCA held that a county charter provision that over-rode the City's attempts to plan in annexed areas did not violate the "single subject" rule.

Here's what's interesting: the argument that won below was that the provision in the charter that held that the boundary could be adjusted only by an ordinance adopted by the commission "over rode" the charter's initiative provision -- which allows adoption of ordinances by the electorate. This "extra effect" was held by the trial court to violate the single subject.

Here's what's important: the Court held that Chapter 163's provisions for the adoption of land development regulations by the "local governing board" and definition of "local governing board" as the county commission means that the use of initiative to amend or adopt land development regulations is inconsistent with state law, and therefore prohibited!!!!!

So - a TON of local governments (especially coastal cities) have adopted restrictive charter amendments that required referenda for plan amendments or rezonings that increase density or intensity. Under the 5th's rationale, these are now illegal and unenforceable.

A blow for better planning and land use regulation and a swat at knee-jerk psuedo-democracy.