Legal Report, April 2013
General Counsel, Trela J. White
- Only the State Can Regulate…
- Guns: Don’t pass local regulations banning guns at your parks and government buildings. The Florida Legislature has created financial penalties for cities and individual elected officials that try to pass or retain their own rules. Existing ordinances are declared null and void. See Fla. Stat. § 790.33.
- Smoking: Don’t pass local regulations banning smoking at your parks, your beaches or other public places. State law supersedes any municipal or county ordinance on the subject. See Fla. Stat. § 386.209.
- Honeybees: Don’t pass local regulations banning beekeeping in residential neighborhoods. Permitting and inspection for beekeeping is handled through the State of Florida’s Department of Agriculture and Consumer Services. State law supersedes any related ordinance. See Fla. Stat. § 586.10(1).
- Pit Bulls and Breed Specific Regulations: Don’t pass local regulations banning certain breeds of dogs. The State of Florida does not allow these breed-specific prohibitions. However, the state law does not apply to ordinances adopted prior to October 1, 1990. See Fla. Stat. § 767.14.
- Palm Beach County Commission on Ethics: Recent Advisory Opinions
RQO 13-005: The Palm Beach County Commission on Ethics (the “COE”) reviewed whether a municipal councilperson was prohibited from participating in a town council workshop to discuss the creation of a fiber network for his town where the councilperson was an employee of Florida Power and Light (FPL). FPL is a wholly owned subsidiary of NextEra Energy. NextEra Energy also is the parent company of FPL FiberNet, which provides fiber services throughout much of FPL’s service area, including that of the town. The COE held that the Palm Beach County Code of Ethics did not prohibit the councilperson from participating in the workshop or from voting on the matter at a future time. The COE held that elected officials are prohibited under the local code of ethics from using their official positions, and from participating or voting on an issue to give themselves or their outside employers a special financial benefit not shared with similarly situated members of the general public. Here is there is no improper special financial benefit being conferred. FPL and FiberNet are separate and distinct corporations. The councilperson is only an employee of FPL, not FiberNet. The councilperson does not work with or have contracts with FiberNet.
- Town of Gulf Stream et al vs. Palm Beach County, and Sharon R. Bock, as Clerk and Comptroller of Palm Beach County, Intervener
Case No. 502011CA017953XXXXMB. Inspector General Funding Lawsuit.
Fourteen municipalities have sued Palm Beach County challenging the method of funding for the Inspector General Program. The municipalities contend that the current funding method is an unlawful tax and invades municipal home rule budgetary authority. The Trial Judge denied the Inspector General’s motion to intervene in the case and the IG appealed. On March 19, 2013, the Fourth District Court of Appeal held oral argument on the Inspector General’s appeal. Oral argument centered on whether the Inspector General was a legally independent entity from the County and therefore, had the right to sue on the issue of funding. Palm Beach County, the Palm Beach County Clerk & Comptroller and the municipalities in the lawsuit argued that the Inspector General was not legally independent of the County, but was part of the County since the Office of Inspector General was created by County Charter and County Ordinance. Therefore, the Inspector General had no right to file suit on funding issues or seek to intervene in the funding lawsuit. The only party who could defend the County Charter and County Ordinance was the County. On March 28, 2013, the Fourth District issued a “Per Curiam Affirmed” Order. This Order affirmed the Trial Court’s ruling that the Inspector General had no right to intervene in the funding lawsuit. On April 11, 2013, the Inspector General filed a Motion for Rehearing or Clarification. The Inspector General also filed a motion for a Rehearing En Banc, which means she is asking the Fourth District Court to have all of its appellate judges review her case instead of just the panel of three appellate judges that issued the ruling against her. The Fourth District has not yet ruled on the Inspector General’s motions. Once the Inspector General’s appeal has concluded, the funding dispute will proceed in the Trial Court. On December 14, 2012, the Inspector General also filed a Petition for Writ of Mandamus in the Fourth District Court of Appeal. This Petition requested that the Court order the municipalities in the lawsuit to pay for the IG Program during the pendency of the funding lawsuit. On April 17, 2013, the Fourth DCA denied the IG’s Petition “on the merits.”
- City of Orlando and Lasercraft, Inc. vs. Michael Udowychenko, etc.,
Case Number SC12-1471. Red Light Cameras.
This case was reported on at the July 2012 League meeting and the details are contained in the July Legal Update, which is located on the League’s website. On November 6, 2012, the Florida Supreme Court accepted jurisdiction of the case. On January 3, 2013, the Appellant City of Orlando filed its initial brief. On January 25, 2013, the Florida League of Cities filed amicus curiae brief in support of the City of Orlando. On February 27, 2013, the Appellee Michael Udowychenko filed his Answer Brief. No further action has been taken by the Florida Supreme Court at this time.
- City of Palm Bay vs. Wells Fargo Bank, N.A.,
Case Number SC11-830. Superiority of Code Enforcement Liens.
This case was reported on at the July 2012 League meeting and the details are contained in the July Legal Update, which is located on the League’s website. No further action has been taken by the Florida Supreme Court at this time.
- RLI Live Oak LLC v. South Florida Water Management District
Case Number SC12-2336. New Heightened Evidentiary Burden To Enforce Regulatory Programs Through Monetary Penalties.
This case was reported on at the January 2013 League meeting and the details are contained in the January 2013 Legal Update, which is located on the League’s website. On March 7, 2013, the Florida Supreme Court accepted jurisdiction of the case. No further action has been taken by the Florida Supreme Court at this time.