Legal Report, January 2013

General Counsel, Trela J. White

1. RLI Live Oak LLC v. South Florida Water Management District Case Number SC12-2336New Heightened Evidentiary Burden To Enforce Regulatory Programs Through Monetary Penalties.
The South Florida Water Management District exercises regulatory authority over activities affecting surface waters.  Its permitting authority is enforceable in administrative and judicial forums.  In 2008, the District sued to enjoin unpermitted dredging and filling activities on land in Osceola County that harmed environmentally sensitive areas.  It also sought civil penalties as provided by law.  The Court ordered remediation of the lands to correct the environmental damage and awarded $81,900.00 in civil penalties.  In doing so, the trial court concluded the District had proven the regulatory violation by the traditional “preponderance of the evidence” standard.  The landowners appealed to the Fifth District Court of Appeal alleging, among other things, that the District had to prove a regulatory violation by the higher “clear and convincing evidence” standard rather than the “preponderance of the evidence” standard in order to impose monetary penalties.  The Fifth District agreed and reversed the trial court’s award of civil penalties.  The Fifth District, however, certified the question as one of great public importance to the Florida Supreme Court.  The District timely filed a notice to invoke the discretionary jurisdiction of the Florida Supreme Court.  The Florida Supreme Court has not yet taken action on this case.

2. Palm Beach County Commission on Ethics:  Recent Advisory Opinions
RQO 12-080:  The Palm Beach County Commission on Ethics (the “COE”) reviewed whether a municipal employee was prohibited from reviewing and awarding a bid submitted by her brother-in-law.  The COE held that municipal employees are prohibited from using their office to give certain relatives and those relatives’ employers a special financial benefit not shared with similarly situated members of the general public.  These relatives include: a sibling or step-sibling, child or step-child, parent or step-parent, niece or nephew, uncle or aunt, or grandparent or grandchild of the employee, or of the employee’s spouse or domestic partner, or the employer or business of any of these people.  An employee’s brother-in-law is not among the persons or entities specified in the Code of Ethics.  That being said, the COE cautioned the employee and stated that there is an appearance of impropriety if the employee reviewed and awarded the contract to her brother-in-law.  The COE recommended that in order to avoid the appearance of impropriety, another member of the municipality’s staff should review the brother-in-law’s proposal and issue the award.
RQO 12-085:  The Palm Beach County Commission on Ethics (the “COE”) reviewed whether a municipal official, as a member of a 501(c)(3) charitable organization, could volunteer to serve on an ad hoc committee of that organization to review student applications and interview students for the purpose of awarding college scholarships.  The committee would not be involved in fundraising activities for the charitable organization.  Based on the facts submitted, the COE held that the Code of Ethics does not prohibit the official from volunteering for a non-fundraising ad hoc committee of a charitable organization in either his personal or official capacity.  However, the official must be careful not to use his position to offer or obtain a quid pro quo for himself or for anyone else or to otherwise specially financially benefit persons or entities listed in the misuse of office section of the Code of Ethics.  The COE also held that should the official decide to participate in fundraising activities in the future, he would need to abide by the gift law section of the Code, which regulates this type of activity.

3. Town of Gulf Stream et al vs. Palm Beach County, and Sharon R. Bock, as Clerk and Comptroller of Palm Beach County, Intervenor
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 Inspector General filed a Motion to Intervene, and a hearing on this Motion was held on October 24, 2012.  On November 16, 2012, Judge Catherine Brunson denied the Inspector General’s Motion to Intervene.  On August 30, 2012, the municipalities filed a Motion for Partial Summary Judgment.  The purpose of the Motion for Partial Summary Judgment was to ask the Court to rule on the legality of the funding method without further delay and before a trial commences.  A hearing on the Municipalities’ Motion was held on November 29, 2012.  On December 5, 2012, before Judge Brunson could rule on the municipalities’ Motion, the Inspector General filed a Notice of Appeal on the order denying her intervention in the case.  All trial court proceedings have stopped pending the appeal.  On December 17, 2012, the Fourth District Court of Appeal issued an order expediting the appeal.  No further action has been taken by the Fourth District at this time.

4. City of Orlando and Lasercraft, Inc. vs. Michael Udowychenko, etc., Case Number SC12-1471Red 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 City of Orlando filed its initial brief.  On January 10, 2013, the Florida League of Cities filed a motion for permission to file an amicus curiae brief.  No further action has been taken by the Florida Supreme Court at this time.

5. 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.