Legal Report, September 2021

General Counsel, Keith Davis

1. Kos 11838, LLC v. City of Panama City Beach, 2021 Fla. App. LEXIS 12204, (Fla. 1st DCA 2021). Equal protection and substantive due process; low speed vehicles.
In 2017, Panama City Beach (“City”) issued an ordinance limiting the number of low-speed vehicles (“LSVs”) available for rent within the City to 300. The City then evenly divided the 300 available LSVs among six licensed businesses, who each received 50 ‘medallions’ as credits for the LSVs they were authorized to rent. Two rental businesses, Kos 11838, LLC and Bhnvn, Inc. (“Plaintiffs”) subsequently challenged the City’s LSV rental ordinance on equal protection and substantive due process grounds. Specifically, Plaintiffs argued that the City’s LSV rental ordinance violated their equal protection rights because the City selected similarly-situated businesses to receive LSV-rental ‘medallions’ while not awarding any to Plaintiffs. Plaintiffs further argued that the City’s ordinance denied them substantive due process because the City’s program failed to create a way to prevent a concentration of ownership of the rental LSVs in one entity, thus infringing on Plaintiffs’ property rights in an arbitrary and capricious manner.

The trial court granted summary judgment for the City on both constitutional grounds, and the First District Court of Appeal (“DCA”) affirmed the trial court’s decision on appeal. When considering Plaintiffs’ equal protection claim, the First DCA correctly applied the rational basis test to the City’s ordinance, and reasoned that the City’s LSV rental ordinance was facially constitutional because the ordinance’s limit of 300 LSVs bore a rational relationship to the legitimate municipal goals of promoting public safety and protecting limited police resources. The First DCA further reasoned that the City’s decision to divide the 300 ‘medallions’ between six businesses was rationally related to the legitimate purpose of limiting rental LSVs while simultaneously promoting business competition. In addressing Plaintiffs’ substantive due process claim, the First DCA again correctly applied the rational basis test, noting that the City’s ordinance was a business regulation which did not infringe upon a fundamental right. Plaintiffs argued that the City’s LSV rental ordinance denied Plaintiffs’ substantive due process rights because the ordinance created the possibility for different LSV rental businesses operating under a single entity to consolidate their medallions, thus denying other rental companies a chance to participate in the program. However, as the First DCA noted, the ordinance’s framework and effectiveness were not tests of its constitutionality. Because the LSV rental ordinance still had a valid government interest in promoting fair competition, whether or not the City implemented the program to best achieve that interest was not an appropriate consideration in a substantive due process argument. This case reaffirms existing precedent that municipal business regulations will pass constitutional muster so long as they are reasonably related to a legitimate government interest under the rational basis test.

2. AGO Inf. Op. to City of Belle Isle (June 24, 2021). Sunshine Law; Non-voting and ex-officio members.
The Florida Attorney General (“AG”) opined on how Florida’s Sunshine Law applies to the City of Belle Isle (“City”) Mayor, who sits as both a non-voting member of the City Council and as an ex-officio member of several advisory boards and committees. With respect to the Mayor’s role as a non-voting member of the City Council, the Florida AG noted that, while the Mayor does not vote on City Council matters, the City’s Charter still authorizes the Mayor to preside over all Council meetings and to participate in discussions with Councilmembers before votes are taken. This mayoral authority at Council meetings, particularly the right to actively join in deliberations with other Councilmembers, requires that the City Mayor’s private discussions with other Council members be subject to the Sunshine Law. As related to the Mayor’s role as a member of various municipal advisory boards and committees, the Florida AG stated that a determination of whether each board or committee is subject to the Sunshine Law requires a case-by-case examination of the particular board or committee’s duties, functions, and responsibilities. Specifically, those boards or committees that make recommendations to the governing body, directly influence the body’s decision-making process, or submit a report that is “rubber-stamped” with approval by the governing body, all fall within the purview of the Sunshine Law. Here, the Florida AG found that all the City’s boards and committees at issue either made recommendations to the City Council or directly influenced the City Council’s decision-making process, thus subjecting the Mayor and the Mayor’s private conversations to the Sunshine Law. This informal opinion emphasizes the importance of ensuring that all elected officials comply with Florida’s Sunshine Law even when participating in unorthodox non-voting or ex-officio roles.