Pages 1 - 99

06/18/02

Chapter 1 - Introduction to Studying the FL Constitution

A. Introduction
1. The Social Contract - p. 1
A. While the federal government’s power flows from its
Constitution, the source of a state government’s power is
inherent. A state constitution is essentially a limitation on
inherent power.
B. Man formed governments, in which he surrendered some
of his freedom to gain the protection of society.
1. This control is the essence of the Social Contract. It
is an inherent power of the government.

C. This inherent power may be divided into three areas:

1. The power to organize to achieve its purposes;
2. The power to raise money necessary to achieve its
purposes;
3. The powers necessary to provide a relatively safe and
orderly environment within its territory.
A. “Police Power” - sovereign right of the state to
enact laws for the protection of lives, health,
morals, and general welfare.

2. Governmental Power in the American System - p. 2

A. The federal government is one of delegated powers,
having only those given to it in or derived by implication from
the Constitution.
1. Exception: Foreign Affairs - power is inherent as
sovereign.

B. The Concept of the State Constitution

1. State Constitution as a Limitation on Inherent State Gov’t
Power - p.4
A. In General:

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 Peters v. Meeks (Fla. 1964) -
1. FACTS - Case based on an attack on the 1961 Broward County tax roll.
Appellants argued that, because of the 1944 election’s deletion of a clause in
Section 5, Article VIII of the FL Constitution, all subsequent legislative acts to
give power to county commissioners are of no effect.
A. Clause deleted: “The powers, duties, and compensation of such
county commissioners shall be prescribed by law.”
Appellees argue that the State, as distinguished from Federal,
Constitution is a limitation of power inherent in the people, or specifically the
state legislature.
2. ISSUE: Do county governments have any real power here?
3. HOLD & RULE: The court agrees with the Appellees. It quotes the Sun
Insurance case (on p. 5): “It is a fundamental principle of constitutional law
that each department of government has the inherent right to accomplish all
objects naturally within the orbit of that department.”
More specifically, it refers to Sec. 5 Art. IX of the Constitution expressly
providing for authority on the part of the legislature to empower counties to
assess and impose taxes for county purposes and enjoining them to do so on the
principles governing State taxation.
B. Constitutional Language That Looks Like Grant of
Power - p. 6
1. Language as a Legitimate Grant of Power
A. Weinberger case - “Where the Constitution
expressly provides a manner of doing a thing, it
impliedly forbids it being done in a substantially
different manner...It is beyond the power of the
Legislature to enact a statute that would defeat the
purpose of a constitutional provision.”
1. Saying that a provision in granting
language is always an implied limitation is
incorrect. See expressio unius est exclusio
alterius later in Ch. 1.

2. Language as Reaffirmation of Existing Inherent

Power
A. Despite powers being general rather than
enumerated, as state governments have grown the

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 practice of specific constitutional authorization for
power has grown as a safeguard against
interpretations limiting legislative authority.
B. Some courts mistakenly read such language as
a limitation, not reaffirmation.
1. P. 8 - Tampa case: Denied authority of
legislature to bind itself, either by K of its
own or by that of municipality under its
authorization, not to exercise power thereby
recognized.

3. Language as Allocation of Inherent Power - p. 9

A. Language phrased in granting terms is best
treated cautiously as a limitation (expressio unius
est exclusio alterius) or, more frequently, as simply
a reaffirmation of already inherent power. Authors
seem to think courts mess this up a lot.
1. Judicial power is inherent and the
constitution merely allocates this power
among the courts, yet courts quote the
constitution as granting their power.

C. State Constitution as Limitation on All Branches of State

Govt. - p. 10.
1. It’s a limitation on ALL state power.

2. Self-Executing and Non-Self-Executing Provisions - p. 10

A. St. Johns Medical Plans, Inc. v. Gutman (Fla. 1998).
FACTS: None really given.
ISSUE: Whether Art. II, Sec. 8(c) of the constitution is self-executing and, if
so, whether this provision affords individual citizens a private right of action.
A. Does Art. II, Sec. 8(c), by itself and without any legislative
enactment, provide individual citizens with cause of action for breach of public
trust for private gain against a public official or employee?

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HOLD & RULE: No. It requires so much in the way of definition, delineation
of time, etc., that the intent of the people cannot be carried out without the aid
of legislative enactment to carry out the intent of this “Sunshine Amendment.”
Page 11 - The Bryant Test to determine a provision Self-Executing:
Whether or not the provision lays down a sufficient rule by means of which the
right or purpose which it gives or is intended to accomplish may be determined,
enjoyed, or protected without the aid of legislative enactment.

B. What if the provision calls for the legislature to enact

certain legislation? Is the provision still self-executing, or
does the need for such legislation keep it from being such?

3. The Formal Amending Process - p. 14

A. Article XI sets out 5 specific ways in which the
constitution may be amended (pp. 14-15):
1. Proposal by legislature - Art. XI, Sec. 1.
2. Revision Commission - Art. XI, Sec. 2.
3. Initiative - Art. XI, Sec. 3. - THE MOST
CONTROVERSIAL.
4. Constitutional Convention - Art. XI, Sec. 4.
5. Amendment or Revision Election - Art. XI, Sec. 5.
B. Advisory Opinion to the A.G. (Fla. 2000) - p. 17:
FACTS: Proponents of amendments filed initiative petitions with the Sec. of
State, who then submitted them to the AG. AG requested S.Ct. to review
proposed amendments. The petitions address allegedly discriminatory
practices in the areas of public education, employment, and contracting.
(Getting rid of affirmative action, etc.)
ISSUE: Do the initiative petitions violate the amending process requirements
in the constitution and statutes?
HOLD & RULE: Yes. The four proposed amendments violate Art. XI, Sec.3,
as well as F.S.A. 101.61, and should not appear on the ballot.
*The Court’s inquiry into this validity is limited to two issues:
1. Whether petition satisfies the single-subject requirement of Art. XI,
Sec. 3, (THE POINT OF THIS CASE)
A. Whether it has “logical and natural oneness of purpose:”
1. “Whether the proposal affects separate functions of government
and how the proposal affects other provisions of the constitution.”

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 2. To fail, it must substantially alter or perform the functions of, not
merely affect, multiple branches.
2. Whether ballot titles and summaries are printed in clear and
unambiguous language pursuant to FSA 101.61. (NOT DISCUSSED IN
THIS CASE)
*In order for the Court to invalidate a proposed amendment, the
record must show that the proposal is clearly and conclusively defective on
either ground. The Court does NOT review the merits of the proposals.
*The initiative process is the only method with the single-subject
requirement because the process does not provide the opportunity for public
hearing and debate like the other methods. The single-subject requirement also
prevents logrolling.
Single-subject arguments by the parties start on bottom half of p. 21.
-Multiple classifications thereby asking voters several questions.
-Substantially affect other existing constitutional provisions. (22)
-Failing to identify the other provisions they affect. (22-23)
-Functional effect on multiple levels and branches of government
(last paragraph, p. 23, to last paragraph, p. 24).
-Proponents say this specificity is hypertechnical burden on rights.
-Court cites 1998 Advisory Opinion on p. 25 -
Initiatives must be narrowly framed, must not involve undisclosed
collateral effects, and must not have the potential to disrupt other aspects
of FL law or government beyond subject of the amendment itself.

C. Substance/Summary Problem - Armstrong v. Harris (Fla.

2000) - p.25.
FACTS: LONG CASE! Legislature filed with Sec. of State a joint resolution
of the House proposing amendment to Art. I, Sec. 17 relating to excessive
punishments. Armstrong and other citizens filed petition for writ of mandamus
challenging its validity. While he went back and forth between courts for
weeks, the amendment was approved in the General Election. (LOTS of
Procedural History on p. 26.) Harris said the ballot title and summary were
accurate, while Armstrong said they were misleading. (SEE top of p. 27 -
difference b/w “cruel or unusual punishment” and “cruel and unusual
punishment.”)
Harris wants Court to adopt a special standard for evaluating the validity
of amendments proposed by the Legislature. She claims the accuracy

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requirement applicable only if it can be shown conclusively that Legislature
engaged in fraud, deceit or trickery.
ISSUE: What is the Accuracy Requirement, and is the Legislature held to a
different accuracy requirement than others proposing amendments?
HOLD & RULE: Article XI, Sec. 1 (Proposal by Legislature). The Court
accords some measure of deference, but the constitution imposes strict
minimum requirements that apply to ALL constitutional amendments under
Article XI, Sec. 5 (page 30). XI:5 implicitly requires that the proposed
amendment be accurately presented on the ballot; otherwise, voter approval
would be a nullity. Also, FSA 101.61 requires ballot title and summary state in
clear and unambiguous language the chief purpose of the measure, because
voters don’t have the actual text of the amendment in front of them. (Page 28)
*Case law illustrates the Accuracy Requirement: A ballot title and
summary cannot either “fly under false colors” or “hide the ball” as to the
amendment’s true effect. The requirement applies across-the-board to all
constitutional amendments.
IN THIS CASE:
1. Page 32 - “Fly Under False Colors” - The title is misleading in that it
implies that the amendment will promote the rights of Floridians through
the rulings of the US Supreme Court - applying the federal standard to the
state. However, FL uses “cruel OR unusual,” not “cruel AND unusual,”
meaning that Floridians are protected from punishment that is either, not
both. History and case law indicate that it was intended for FL to
provide greater freedom than its federal counterparts. “Fed = the floor for
basic freedoms; FL = the ceiling.” In this instance, a citizen could have
thought he was protecting state constitutional rights, when in fact he
would be nullifying those rights.
2. Page 34 - “Hiding the Ball” - Under FSA 101.61, ballot summary
must state “the chief purpose” of the amendment. In evaluating “chief
purpose,” the Court must look not at subjective criteria of the
amendments’ sponsor, but objective criteria of the amendment itself, such
as its main effect. Here, the effect will be to nullify the Cruel OR
Unusual Punishment Clause of the state constitution. This far outdoes the
stated purpose - to “preserve the death penalty,” for it will nullify a long-
standing constitutional provision that applies to ALL punishments, not
just the death penalty. This is not mentioned or hinted at anywhere in the
summary.

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* ANOTHER ISSUE: Post-Election Invalidation (p. 34) - Harris said it’s too
late because the voters have already approved it. WRONG. The general rule is
that once an amendment is duly proposed and actually published and submitted
to a vote and them adopted without question being raised prior to the election
as to the method by which it got before the people, the effect of the favorable
vote cures defects in the form of submission. However, the defect in form must
be technical and minor. Here, the defect goes to the heart of the amendment,
and is therefore fatal. You can’t say a favorable vote cured the defect when the
voters were not adequately informed of the purpose and effect of the measure
on which they were voting. A favorable popular vote alone does not
automatically validate a defective amendment when the defect goes to the
heart of the amendment.
Also, the fact that it was after the election doesn’t mean you can get away
with “hoodwinking” the public! (Page 37) Not only that, but this challenge
began weeks before the election but went back-and-forth in courts.
CONCURRENCE: Calls for Legislature and this Court to “devise a process
whereby misleading language can be challenged and corrected in sufficient
time to allow a vote on the proposal.”

D. Integration of the Formal Amendment with Then-Existing

Constitution - p. 40.
1. Amendment should be construed so as to harmonize with
the existing constitution, if at all possible. However, where
this is not possible, the amendment, being the latest expression
of the will of the electorate, takes precedence.
2. General Rule: State constitutional amendments are to
be given prospective application unless it is clear that the
amendment was specifically intended to be retroactive in
its application.

3. State v. Div. of Bond Finance (Fla. 1973)

FACTS: Bonds for funding pollution control projects. Appellant has two
objections to validation of the bonds, relating to the requirement of elections
when pledging full faith and credit of the state and of local political
subdivisions. He says that Art. VII, Sec. 11(a) & 12(a) require a vote of the
electorate. Art. VII, Sec. 14, enacted subsequently, is an exception thereto.
ISSUE: Whether bonds to which were pledged full faith and credit of the state

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could be validated without an authorizing vote of the electors concerned - in
this case a statewide electorate.
HOLD & RULE: Yes. Fundamental rule of construction that, if possible,
amendments should be construed as to harmonize with other provisions, but if
it can’t be done, then the amendment being the last expression of the will of the
people will prevail. Furthermore, all provisions bearing upon a particular
subject matter are to be brought into view and to be so interpreted as to
effectuate the great purpose of the instrument.
HERE, Sec. 14 was enacted by the people with the intent to provide an
alternative method of financing state bonds without a referendum in certain
instances.

4. Folks v. Marion County (Fla. 1935) - p. 41

FACTS: Appeal from decree of Marion County circuit court validating an
issue of county refunding bonds.
ISSUE: Whether or not “homesteads,” as defined by Art. X, Sec. 7, being the
amendment adopted on 11/6/34, are subject to taxation for the payment of
county refunding bonds authorized and issued after the adoption of said
homestead exemption amendment; such bonds being in renewal or extension of
obligations evidenced by county bonds issued prior to the adoption of said
amendment, when homesteads were subject to taxation for the payment of such
obligation.
HOLD & RULE: No. Art. I, Sec. 10 of the US Constitution says “no state
shall pass any law impairing the obligation of contracts.” The US Supreme
Court has held that a state constitutional provision is a law within the meaning
of this clause of the federal constitution. “A state can no more impair the
obligation of a contract by her organic law than by legislative enactment.”
The Homestead Exemption of 1934 could not affect or impair the taxing
power which had been pledged as security for payment of the bonds already
issued and outstanding at the time the amendment was adopted.

E. Amendment by Interpretation
1. In addition to “formal amending,” the constitution may also
be amended through the judicial interpretation, as well as
interpretation of other branches.

4. Aids in Interpreting the Constitution

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 A. Constitutions receive a broader and more liberal interpretation
than statutes because they are living documents, not easily
amended, demanding greater flexibility.
B. Primary Rule for Interpretation/Construction: Ascertain
and give effect to the intent of the drafters, and the electorate
which adopted the provision.

C. City of St. Petersburg v. Briley, Wild & Associates, Inc. (Fla.

1970) - p. 44
FACTS & ISSUE: Did Pinellas County have authority to use county ad
valorem taxes to pay for the expansion of the sanitary sewage facilities in
Pinellas County, when a portion of those taxes used were paid from property in
St. Petersburg, which had its own sewage treatment resources and did not use
the county’s resources?
HOLD & RULE: Yes. Article VIII, Sec. 1(h) proscribes the use of tax monies
received from taxes levied upon property within municipalities “for services
rendered by the county, exclusively for the benefit of property or residents in
unincorporated areas. The Court first looks at what is proscribed by
“exclusively...”, and second, whether or not the record herein supports findings
of the trial judge that the project is not for such proscribed purposes, but will
benefit the property and residents of the municipalities as well.
This constitutional provision was new in the 1968 constitution. The
court must determine what was intended by the framers of the provision
and understood by the voters who adopted it. The Court looks up
“exclusive” in Webster’s. Such a literal interpretation would mean that if the
municipality benefits at all, then the project would not be exclusive and thus
not be proscribed by the constitution. HOWEVER, a literal interpretation
should not be followed if it leads to a conclusion that is unreasonable or to
a result not intended by lawmakers.
The court thus looks at the history behind the provision. The intent was
to prevent double-taxation of municipally-situated property for a single benefit.
To interpret the provision to allow taxing this property for minute benefits
would “do violence” to the intent of the framers and the voters who adopted it.
HOWEVER, as long as the benefits are to the municipally-situated
property are real and substantial, then it’s OK. Here, the public health concern
for sewage affects everyone.

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 D. If language is clear and unambiguous, there is nothing to
interpret, and therefore no reason to resort to rules of
construction.

E. Burnsed v. SCL Railroad Co. (Fla. 1974) - p. 48

FACTS & ISSUE: The Court goes into a discussion as to whether it should
hear this case, based on different provisions.
HOLD & RULE: It is a fundamental rule that a construction of the
constitution which renders superfluous, meaningless, or inoperative any of
its provisions should not be adopted by the courts.
Where a constitutional provision will bear two constructions, one of
which is consistent and the other which is inconsistent with another section
of the constitution, the former must be adopted so that both provisions
may stand and have effect.

F. Doctrine of Ejusdem Generis - where a general term is found

in conjunction with a series of very specific terms, the meaning
of the general term will be considered as restricted by the more
specific terms.

G. State v. Town of Davie (Fla. 1961) - p.50

FACTS: Petitioners for a writ of quo warranto attack the validity of the
incorporation of the Town of Davie. Smart people. The Court looks at
whether it has jurisdiction, for this is an original proceeding in the supreme
court. Art. V, Sec. 4(2) says Court may issue writ of quo warranto when state
officer, board, commission, or other agency authorized to represent public... is
named as respondent.
HOLD & RULE: Prayer for petition denied and petition dismissed without
prejudice. Go to the appropriate court. The Court says the respondent city
officials might be “other agency,” under V:4(2). While casual reference would
suggest jurisdiction, the Court must read the phrase in light of the preceding
language in the same sentence. The Court says that by language employed it is
obvious that the constitution contemplates the exercise of original jurisdiction
by the Court primarily in those matters requiring state-wide perspective. It
notes that V:4(2) says “state” before officer, board, etc.
The Court uses ejusdem generis to say that the entire phrase in the Article
is modified entirely by the word “State.” It says that ejusdem generis may be

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employed to aid in construction when the specific members of an
enumeration constitute a class and the class is not exhausted by the
enumeration and the series is concluded by a general term descriptive of
the class.

H. Exception to ejusdem generis: Where a statutory list is

exhaustive of members of the class in question, then general
terminology following that list should not be considered limited
solely to member of the same class.

I. Remember expressio unius est exclusio alterius - the

expression of one thing is the exclusion of another.
1. Nichols v. State ex rel. Bolon (Fla. 1965) - p. 52
FACTS & ISSUE: Nichols and Bolon ran for City Commissioner of
Melbourne. Nichols won, but Bolon sued challenging his qualifications. The
city charter required City Commissioners to be freeholder electors of the city
for at least one year immediately before their qualifying for office. Temporary
injunction against issuing oath of office to Nichols. Nichols moved to dissolve
the injunction on grounds that the provision of the city charter was
unconstitutional. Denied.
Nichols argues that Art. VI, Sec. 5, directing Legislature to exclude from
“every office of honor, power, trust, or profit” all persons convicted of certain
crimes, prohibits them from establishing any other qualifications, under
expressio unius est exclusio alterius.
HOLD & RULE: Wrong. Neither precedent nor reason supports Nichols.
VI:5 does not deal with the general subject of disqualifications, but simply
makes it the duty of Legislature to enact the necessary laws to exclude from
every office persons falling within certain classes.
Also, plenary power of the legislature over municipal corporations under
VIII:8 has been repeatedly affirmed.

J. Constitution should be interpreted in its entirety. Each

provision should be interpreted as to harmonize, with each
other. Amendments should be construed as to harmonize with
existing provisions. However, where this is not possible, the
amendment, being the latest expression of the will of the
electorate, must be given priority.

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1. State v. City of St. Augustine (Fla. 1970)
FACTS & ISSUE: Whether FSA 169.01, requiring that bond issues be
approved by a majority of votes cast in an election in which a majority of the
freeholders who are qualified electors residing in the city shall participate, was
repealed by Art. VII, Sec. 12(a) of the Constitution as revised in 1968. All that
was required after 1968 was a majority vote of those who participated, instead
of all qualified freeholders.
HOLD & RULE: Yes, the 1968 amendment controls. The new provisions are
so materially different from the 1930 amendment. It is clear that the
requirement of an election in which a majority of such electors participated was
intentionally and deliberately omitted from the 1968 version.

K. Courts frequently look to how other branches have

interpreted and defer.
1. Greater Loretta Improvement Assoc. v. State ex rel. Boone (Fla. 1970) p.55
FACTS & ISSUE: Appeal of summary final judgment declaring the Bingo
Statute unconstitutional and enjoining appellant from conducting bingo games.
In this state? The issue is whether bingo falls under the meaning of “lottery,”
prohibited by Article III, Section 23.
HOLD & RULE: Bingo is not a “lottery.” Let the bluehairs play. It is clear
the Legislature in 1879 didn’t consider Keno, a bingo-like game, to be a lottery
when it issued licenses. The Court in Overby v. State (1881) held that Keno
was a gambling game, but that the Legislature legalized it as a source of
revenue by authorizing licenses.
Therefore, since the Legislature was authorized to allow keno in 1879, it
is authorized to legalize bingo in 1967.
In such a situation, where a term has several possible meanings, if the
Legislature has by statute adopted one, its action is “well-nigh, if not
completely controlling.” When the Legislature has once construed the
constitution, for the courts to place a different construction means that
they must declare void the action of the legislature. This should not be
done unless it can be said that the statute is positively and certainly
opposed to the constitution.

Chapter 2 - Separation of Powers

A. In General - p. 61

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 1. Art. II, Sec. 3 - Separation of Powers.
2. Frequently the most difficult issue confronting the court is
characterizing a particular power as appertaining to a branch of
government.

B. Encroachment by One Branch on the Powers of Another: Six

Types - p. 63.
1. Encroachment on Legislative by Judicial
A. Judicial Modification of Common Law - (pp.63-65)
1. The creation of new common law is rare, BUT
2. Where common law rules exist the legislature may modify
or abolish them.
3. HOWEVER, the legislative intent to interfere must be:
A. Clear, and
B. Narrowly construed.
4. Once common law rule has been codified, it is beyond the
judiciary’s power to change it.

5. Shands Teaching Hospital & Clinics v. Smith (Fla.

1986) - p.65
FACTS: Shands appeals dismissal of complaint against Smith for her dead
husband’s medical bills. Trial court conceded cases have held that a wife is
responsible for husband’s medical bills, even in absence of written K, but
declined to follow that authority because the common law imposes no liability
on a wife for the necessaries of her husband - only by K can she be responsible.
ISSUE: Does common law doctrine of necessaries keep wife from having to
pay husband’s medical bills?
HOLD & RULE: Yes. The common law doctrine of necessaries has never
been explicitly altered by constitution, court, or statutes to require wife to be
subject to an action without K. In the absence of constitutional or statutory
authority reflecting a change in common law, the DCA do not enjoy the
prerogative of overruling controlling precedent of the FL S.Ct. The issue
here is most appropriate for legislative concern.
CONCURRENCE: Court has power to abrogate common law rule found to be
inconsistent with constitutional or statutory law, but that does not include the
power to judicially create new liabilities or causes of action which did not exist
at English common law. If courts can’t find the answer within constitutions or

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statutes, then they may turn to English common law in force on July 4, 1776, as
specified in FSA 2.01.

6. Connor v. SW FL Reg. Med. Ctr. (Fla. 1996) - p. 68

FACTS: Med. Ctr. sued husband & wife for his medical bills. Trial court
dismissed complaint against wife because she had not executed agreement to
pay his bills, declining to expand Necessaries to include wife paying for
husband’s bills. DCA reversed & remanded.
Case essentially the same as Shands, but a series of cases since then had
agreed that husbands and wives must be treated alike yet disagreed as to
whether Necessaries should be applied to both spouses or simply abolished.
Connor argues that with removal of coverture, Necessaries is no longer
justifiable because wives can freely contract. Med. Ctr. argues that Necessaries
now serves function of promoting partnership in marriage.
ISSUE: Whether Necessaries applies to both spouses or should be abolished.
HOLD & RULE: Common law doctrine of Necessaries is abrogated. Since
the Legislature has not taken up the issue, and the Court sees no reason to
view that Shands was wrong, but constitutional considerations demand
equality between the sexes, the Court just wipes it out. Neither spouse is
liable for the other’s necessaries.
Court leaves it to Legislature to determine the policy in this area. Courts
and legislatures across the country are diverse in their handling of it.
DISSENT (pp.70-73) We shouldn’t weaken marriage by eliminating spousal
duty to care for one another. Agrees that equality is violated by the present
form of Necessaries, but would extend it to both spouses rather than abrogate
it.
Dissent also questions Court’s analysis of examples from other states.
Also, reliance on Shands is misplaced because the Court expressly refused to
consider whether constitutional considerations required extension of the
doctrine, while in this case it does consider it. Dissent would follow majority
of other states and extend the doctrine.

B. Temptation to Rewrite Statute to Avoid Unconstitutionality -

p. 73.
1. Brown v. State (Fla. 1978) - p.73
FACTS: Brown charged with open profanity in violation of FSA 847.04. He
challenges on First Amendment grounds.

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ISSUE: Whether the statute is unconstitutional.
HOLD & RULE: Yes. The Court looks at cases like Chaplinsky (fighting
words) and Gooding. Unlike the statutes in those cases, this one contains no
language to support a restrictive interpretation of it. The dissent in State v.
Mayhew said that only a bald judicial amendment similar to legislative
enactment was required to hold that the statute did not violate freedom of
speech. Nothing in the statue indicates that it is limited to “fighting words.”
Traditional policy is that all doubts as to validity of statute are to be
resolved in favor of constitutionality when reasonably possible. However,
court should not invade the province of the legislature. When a statute in
no way suggests a saving construction, court will not abandon restraint
and effectively rewrite it. Art. II, Sec. 3 of FL Constitution requires
precision defined by legislature, not legislation articulated by the
judiciary. (Page 75).

C. Temptation to Rewrite Statute to Avoid Problems It May

Cause - p. 76.
1. Town of Loxley v. Rosinton Authority (Ala. 1979) - p.
76
FACTS: Loxley wants to expand its water system to provide service outside its
corporate limits. A portion of this area includes that serviced by Rosinton.
Rosinton wasn’t providing service yet, but had completed engineering phase of
doing so. After Loxley arranged financing, Rosinton obtained injunction.
Under Alabama statutes, municipalities were authorized to expand,
without restriction, water & sewer systems outside their city limits. Loxley
says there is therefore no statutory authority to prevent it from expanding, and
that the court should not usurp the role of the legislature by creating a
restriction. Rosinton says the true intent was to require municipalities to obtain
permission from county commission first.
ISSUE: Whether municipality can extend its water system outside its corporate
limits to provide service to residents within another incorporated area.
HOLD & RULE: Yes, because there is no authority, statutory or otherwise,
requiring Loxley to obtain county commission’s approval before expanding
system into Rosinton’s service area.
In interpreting statutes, the underlying consideration is always to
ascertain and effectuate the intent of the legislature as expressed in the statutes.
The Court may not amend statutes as to make them express what it may

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conceive the legislature would have done or should have done.

2. FL cases, while not involving as blatant a legislative

mistake as Loxley, have held that the courts are without
power to construe and unambiguous statute in a way
which would extend, modify, or limit, its express terms or
its reasonable and obvious implications. To do so would be
an abrogation of legislative power. (P. 78)
3. Court has a duty of uphold the constitutional validity of
a statute where possible.

4. Dade County CTA v. Legislature (Fla. 1972) - p. 79.

FACTS & ISSUE: Dade Classroom Teachers Association in original
mandamus proceedings before the Court attempts to compel Legislature to
enact standards or guidelines regulating the right of collective bargaining by
state public employees, as guaranteed by Art. I, Sec. 6. They complain of
legislative inaction since Dade CTA v. Ryan (1969), in which Court said
constitution gives public employees the same rights, with the exception of right
to strike, of collective bargaining as private employees would have.
HOLD & RULE: Petition for writ denied. Judiciary cannot compel
Legislature to exercise purely legislative prerogative. One exception to
separation-of-powers is in the area of constitutionally-protected rights. It
is the duty of the Legislature to provide the ways & means of enforcing
those rights. HOWEVER, in absence of appropriate legislative action, it is
the responsibility of the courts to do so.
The Court basically says that, while it understands that the Legislature
was particularly busy at that time, if they didn’t do something about it soon, the
Court would step in and do it for them.

2. Encroachment on Legislative by Executive - p.80

A. Blood Service Plan Ins. Co. v. Williams (Fla. 1st DCA 1966) -
p. 80
FACTS: BSP appealed Insurance Commissioner order denying its application
for Certificate of Authority to do business in the state. BSP says it fully met
the statutory requirements, and that Commissioner acted without or in excess of
his jurisdiction, or alternatively, in a capricious and arbitrary manner.

16
 BSP met all the statutory requirements, but was denied based on the
unique character of its operation and the impact it would have on the state’s
blood bank program. (Second paragraph, p. 81)
ISSUE: Did the Commissioner exceed his authority in denying BSP?
HOLD & RULE: Yes. The statute specifically spells out the requirements the
Legislature intended. Although the Commissioner has some latitude in
determining compliance with those requirements, he is not empowered to
create additional ones.
B. Bottom of page 81 - first notes on Hillsborough case, which
will come up again repeatedly in the cases.
C. State v. FL Police Benevolent Association (Fla. 1992) - p. 82.
FACTS: LONG CASE. Governor entered into collective bargaining
agreement with several unions. Agreements were to be effective from 1987 -
1990. They incorporated language from the FL Administrative Code
governing attendance and leave of employees. In 1988, Legislature enacted its
appropriations, including language that altered the leave policy and thus the
leave awards for which the unions had bargained.
The unions argue that the Legislature abridged their right to collectively
bargain, which is guaranteed by the FL constitution. The trial court and DCA
agreed - summary judgment for the unions that the Act violated Art. I, Sec. 6.
ISSUE: Did the Appropriations Act, in changing the leave policy, violate the
unions’ Art. I, Sec. 6 right to collectively bargain?
HOLD & RULE: Reversed and Remanded. The Court recognizes the right of
public employees to collectively bargain, but it is not the same as the private
sector. Constitutional protection does not require the Court to ignore the
differences between public and private employees.
Surely it is not intended to alter fundamental principles like Separation-
of-Powers. Exclusive control over public funds is with the Legislature (Art.
VII, Sec. 1(c)). Unlike a private employer, whose agreement binds the
employer to fund its terms, the public employer, deemed by statute to be the
Governor, cannot so bind the guardian of its funds, the Legislature. Any other
rule would permit the Executive to invade the Legislature’s exclusive right to
appropriate funds.
This doesn’t mean that the right to collectively bargain is meaningless for
public employees. However, the constitutional provision does not and cannot
give public employees the same rights as private employees to require the
expenditure of funds to implement the negotiated agreement. Accordingly, the

17
agreements were subject to legislative appropriations, as recognized by the
agreements’ Savings Clauses. (Footnote 5, page 84)
The Court then determines whether the language unilaterally changed by
the legislature falls under the exclusive domain of its appropriations power.
The Court looks to the NJ case of State v. State Troopers Fraternal
Association, where such changes were upheld based on language in the
agreement that all terms were subject to budgetary and/or legislative limitations
or changes. Here, the State argues that the Savings Clause operates the same
way, which the Court says is correct - See Footnote 10, pages 85-6.
The Court also looks at how the NJ case addressed whether the
legislature’s exclusive power over appropriations entitled it to make unilateral
program changes. The legislature was not bound to fund the program simply
because the K called for it. However, because it did choose to fund it, and
because there was no suggestion that the $ appropriated was insufficient to
cover it, the NJ court held that enforcing the program at its negotiated level
would not infringe on the appropriations power.
Here, the Court finds the test from NJ to be a reasonable
accommodation of both the right to collectively bargain and the exclusive
control over the purse. Where the legislature provides enough money to
implement the benefit as negotiated, but attempts to unilaterally change
the benefit, the changes will not be upheld, and the negotiated benefit will
be enforced. Where it does not appropriate enough money to fund the
negotiated benefit, as it is free to do, then the condition it imposes on the
use of funds will stand even if contradictory to the negotiated agreement.
Reverse and remand to see if the appropriation was sufficient to cover the
negotiated benefits.
DISSENT: The majority neglects to note that the out of state opinions it
uses are inapplicable because they didn’t have constitutional provisions like
Art. I, Sec. 6. Nor does it explain how its holding adheres to the Dade County
CTA rule that, with the exception of the right to strike, public employees have
the same collective bargaining rights as are granted private employees by Sec.
6.
The majority’s purported adherence to Separation-of-Powers is
interesting, since it tacitly declares that one constitutional provision (S-o-P)
overrules another (c-b). The traditional rule of construction is that provisions
should be construed to harmonize and each be given effect.
The majority’s Footnote 6 says that money items are subject to legislative

18
whim while non-money items are entitled to the compelling state interest test.
So salary and leave provisions can be unilaterally changed by the legislature
while parking space allocation can only be changed by passing the Strict
Scrutiny Test?
Footnote 6 also conflicts with Hillsborough, which held that the right to
collectively bargain, as part of the constitution’s declaration of rights, is a
fundamental right, and therefore can only be abridged under showing of a
compelling state interest. That decision included agreements as they affect
money items. (Top of p. 89)
The result of this decision ignores precedent regarding a fundamental
right and makes the bargaining process for public employees useless. Even a
provision of an Appropriations Act is subject to judicial review if it may violate
a fundamental right or other constitutional provision.
The Legislature is bound to at least ensure that some mechanism exists to
make these negotiations meaningful. If they don’t then Art. I, Sec. 6 empowers
the Courts to do it for them. This doesn’t mean that the legislature has bound
itself in advance to the executive’s negotiated agreement. Rather, Article I,
Sec. 6 imposes on the legislature at least a duty to seek renewed negotiations
whenever it decides to ignore the governor’s negotiated agreement.
Despite all this, there are two instances where Legislature would be
justified in taking unilateral action: 1) Good-faith failure in the bargaining
process, and 2) Whenever justified by compelling state interest.
The argument that the Savings Clause rendered agreements subject to
unilateral legislative change basically says that the unions bargained away their
right to bargain. If this is what the Clauses say, then they are void as against
public policy - Art. I, Sec. 6.
Finally(?!), the legislature has obviously refused to assent to this
agreement. Therefore, under K law, the agreements haven’t become
enforceable K’s. As such, the Savings Clauses haven’t become enforceable,
either.

D. Chiles v. United Faculty of FL (Fla. 1993) - p. 91.

FACTS & ISSUE: Appellee unions represent class of public employees unable
to resolve a collective bargaining agreement for bay and benefits in FY91-92.
Pursuant to statutory authority, the legislature resolved the impasse by
authorizing 3% raise effective 1/1/92, which the unions ratified.
State officials then projected a shortfall in public revenues. Included in

19
an attempt to meet the shortfall was a postponement of the planned raises until
2/15/92. Later, the legislature responded to the continuing shortfalls by
eliminating them altogether.
The unions sued. Trial court ruled that the legislature had violated the
right to collectively bargain and impermissibly impaired the K. Certified for
immediate review to S.Ct.

HOLD & RULE: AFFIRMED. Court notes that this case is different from
State v. PBA because in this case a final agreement had been reached and
funded before it was unilaterally modified and abrogated by the legislature.
The State argues that whatever agreement there was failed to reach level
of a fully-enforceable K, that public employee bargaining agreements can
never fully constitute fully-binding K’s. The Court does NOT accept this
position.
Nor do they accept the argument that the Legislature is not a “party” to
the K and therefore can’t be bound by it after expressing legislative assent
through appropriations. Once the Executive has negotiated and the Legislature
has accepted and funded an agreement, the state and all its organs are bound by
it under K law. Art. I, Sec. 10 of the constitution guarantees the right to
contract, and equally enforceable are labor contracts under Art. I, Sec. 6.
The legislature has authority to reduce previously approved
appropriations to pay public workers’ salaries made pursuant to collective
bargaining agreements, but only where it can demonstrate a compelling
state interest. (Page 92) Before that authority can be exercised, it must
demonstrate no other reasonable alternative means of preserving its K
with the workers. Political expedience is not enough - must show that the
funds are available from no other possible reasonable source. That hasn’t
happened here.
The Court does not agree that Savings Clauses are sufficient to nullify the
K’s. They were meant to preserve K’s in event of partial invalidity, not as an
escape hatch.
Finally, the Court does not revisit or modify Chiles v. Children A - F
(1991), where it affirmed FL’s strong Separation-of-Powers doctrine. This
case does not present an S-o-P violation, nor is the Court attempting a judicial
appropriation of public money. Having exercised its appropriation powers,
the legislature cannot now change its mind and renege on the K without
sufficient reason. S-o-P does not allow unilateral legislative abrogation of

20
a valid K.
CONCURRENCE - Grimes (wrote the opinion in State v. PBA):
Because the state had contracted for the raise, the legislature was required to
make other reasonable reductions in appropriations or seek other reasonable
sources of revenue.
CONCURRENCE - Harding: This case isn’t the same as State v. PBA
because there was no negotiated agreement, but an impasse resolved by the
legislature. The legislature’s subsequent attempt to rescind the raise, absent a
showing of compelling state interest, violates both the right to contract and the
right to collective bargaining.
DISSENT - Overton (concurred in PBA) (p.94): When a budget
shortfall is so great that the governor must call a special session to balance the
budget, a compelling state interest exists. Once the budget is further analyzed,
the shortfall Grimes describes in his concurrence is actually worse than he
thinks.
State employees win the battle but may lose the war. Once raises have
been agreed upon and appropriated and a revenue shortfall subsequently
occurs, the legislature’s sole choice will be the elimination of state jobs. The
majority’s opinion allows the elimination of jobs but not of pay raises.
DISSENT - McDonald (p. 95): Art. I, Sec. 6 was not intended to alter
fundamental constitutional principles, such as S-o-P, and does not give public
employees the same rights as private employees to require funding to
implement a negotiated agreement, per PBA. Also, legislative enactments
regulating collective bargaining should be accorded great deference, per Dade
CTA.
Appropriating funds is the exclusive constitutional prerogative of the
legislature. Moreover, the power to reduce appropriations is a legislative
function. Collective bargaining agreements are subject to this power, and
recognize that through their Savings Clauses.
PBA requires the state to show a compelling state interest justifying
abridging the right to collectively bargain. Article VII, Section 1(d) requires a
balanced budget. (Footnote 4, page 96). When the governor certifies a
shortfall, a compelling interest exists.
Laws must be made through the legislature, not through bargaining by
anyone outside the legislature.
ON MOTION FOR CLARIFICATION - p. 97: The legislature’s legal
obligation terminated on 6/30/92. Therefore, it was under no legal obligation

21
to provide the same level of funding beyond that date. Nothing required the
pay raise beyond that date.

22
Pages 100-204

3. Encroachment on Power of Executive Branch by Judicial

Branch
State ex rel. Dept. of H.R.S. v. Sepe (3d DCA 1974) (page 100)
Facts - Trial court committed Defendant (D) in criminal case to Dept of HRS
and included in order mandatory directions to HRS (state agency) as to method
and duration of treatment.
Issue - Whether the state court had jurisdiction in this matter or acted in excess
of its jurisdiction.
Holding - Yes. (1) The state agency had not been brought into case by proper
process and had not been furnished w/notice and opportunity to be heard. (2)
such directions to state agency (as above) of the person committed amounted to
usurping jurisdiction of state agency to determine those matters, as it is
authorized by law to do.
Analysis - To thus invade functions of state agency as division of executive
dept is in derogation of doctrine of separation of powers of the state govt.
Concurring - Judicial intervention in the decision making function of the
executive branch must be restrained in order to support the integrity of the
administrative process and to allow the executive branch to carry out its
responsibilities as a co-equal branch of govt.

Florida Power & Light Co. v. Glazier (Fla. 3d DCA 1996) (page 102)
Facts - Negligence action by Glazer (B) vs. FPL (). B contends that he
developed rare cancer b/c of his exposure to power lines owned and maintained
by  on easement near his home. Summary Judgment sought by  on basis that
court lacked subject matter jurisdiction. Denied.  argues that separation of
powers doctrine of Fl. Constitution precludes judicial branch from adjudicating
this tort claim for damages.  contends that legislature delegated regulatory
authority over public utilities to Public Service Commission (PSC) and Dept
Environmental Protection (DEP).  argues that this authority is exclusive and
divests courts of jurisdiction for action of this sort.
Issue - Whether court has jurisdictional authority over this type of matter?
Holding - Yes. This argument was deemed meritless by Supreme Court in
Southern Bell Tel. V. Mobile Am. Corp. (Fla. 1974). “This is a judicial function
w/in jurisdiction of the circuit court pursuant to Art. V, Sec. (5)(b) of the

23
Florida Const.
Analysis - Result in Southern Bell did not turn on distinction pointed to by
FP&L. Instead it turned on fundamental jurisdictional differences b/w
legislature and administrative agencies on the one hand, and the judiciary on
the other.

3. Encroachment on Power of Executive Branch by Legislative

Branch
Jones v. Chiles (Fla. 1994) - Page 103
Facts - John Jones (B) a compensation judge (executive official) petitions for
writ of mandamus, (writ by court to official compelling performance of a
ministerial act that law recognizes as absolute duty) asking Court to require
Chiles () (Governor) to reappoint him to office as required by reappointment
procedure set forth in Sec. 440.45, Fl. Stat. This statute was that Judicial
nominating commission was designed to vote on whether to keep judge or not.
If commission voted not to retain judge, Governor could not reappoint judge.
If commission voted to retain, then Governor was required to reappoint. B was
voted to be retained but  did not reappoint him.
Issue - Whether the Governor (Chief State Executive official) may be
compelled by Statute (Legislative Branch) to appoint or reappoint executive
officials?
Holding - No. The portion of Sec. 440.45(2) that eliminates the Governor’s
choice in the reappointment of a compensation claims judge is invalid b/c it
unconstitutionally encroaches on the power of the Governor to appoint
executive branch officers.
Analysis - Compensation claims judges fall under the Workers’ Compensation
division of the Dept of Labor and Employment Security which is 1 of 25
executive departments provided for in Art. VI, Sec. 6 of the Fl. Const.
• Although, in the past, this Court has acknowledged that
compensation claims judges perform a quasi-judicial function,
this Court has repeatedly acknowledged that those judges are
still members of the executive branch.

1. Encroachment on Power of Judicial Branch by Executive

Branch
In re Advisory Opinion to the Governor (Fla. 1968) - Page 107
Facts - Letter from Governor to Fl. Sup. Ct. asking for opinion as to Sec. 15,

24
Art. IV of the Constitution of FL. Sec. 15 allows Governor to suspend from
office any officer not subject to impeachment for malfeasance, or misfeasance,
or neglect of duty in office, felony, drunkenness or incompetency. A Criminal
Court of Record Judge is not subject to impeachment. However, it is the
opinion of this court that the Governor does not possess the power under FL.
Const. To review judicial discretion and wisdom of Criminal Court of Record
Judge while he is engaged in judicial process.
• However, if physical or mental incompetency is established
and determined w/in the Judicial Branch by a court of
competent jurisdiction, Governor may use such judicial
determination as a basis for suspension on grounds of
incompetency.

1. Encroachment on Power of Judicial Branch by Legislative

Branch
Rich v. Ryals (Fla. 1968) - Page 109
Facts - District Court of Appeal held unconstitutional Sec. 19 of the Fl. Const.
which stated that “Any aggrieved person shall have the right to apply to Circuit
Court to enjoin and restrain any person violating the provisions of this act...and
the court “shall” upon proof of the violation of same, have duty to forthwith
issue temporary and permanent injunctions as necessary.
Issue - Whether the use of the word “shall” in statute sec. 19 encroaches upon
the judicial function in requiring performance of a judicial act w/out regard to
the essential and traditional considerations of law and justice?
Holding - NO. Since the Legislature is w/out authority to mandate a court of
equity to issue an injunction, and since we are to presume that the Legislature
intended to pass a valid and constitutional act, the word “shall” as used in Sec.
19 of Chap. 63-1716, Laws of Florida, is permissive and not mandatory and for
that reason it was error for D.C. of Appeal to hold that the word “shall”
amounted to a mandate and invalidated Sec. 19.

Note on Procedure and Substance:

• Whether an act of the Legislature is substantive, and thus
within the province of that body, or is procedural, and,
therefore, in conflict with the Supreme Court’s rule making
power, and, hence, in violation of separation of powers.
 Substantive law prescribes duties and rights under our

25
 system of government, and the legislature is responsible
for enacting such law.
 Procedural law concerns the means and methods to apply
and enforce those duties and rights, and the Supreme
Court determines procedural law through promulgation
of rules.

Jones v. Seminole County (Fla. 4th DCA 1996) - Page 113

Facts - Jones (owner of a law firm) rejected County tax collector’s assertion
and notice that he was required to obtain and pay for occupational license for
law firm. He did not do so and board gave notice of hearing and he failed to
attend and Board found him in violation. Hearing for imposition of fine was
not heard b/c Jones filed suit.
• The powers given by Legislature to code enforcement board
by Chap. 162 do not appear to cross the line between “quasi-
judicial” and “judicial.” Such board may impose fines for
violations but cannot impose criminal penalties.
• Even though liens may be assessed against property, Sec.
162.09 would be interpreted to permit presentment of defenses
prior to enforcement of lien.
• Further, statute provides fundamental due process
requirements of notice and hearing, making of a record, and
appeal.

C. Delegation of Powers as a Separation of Powers Problem

1. Legislative Delegation of Legislative Power
• State Courts have held that legislative body cannot
delegate its lawmaking power to another branch of
government or private individuals or entities. This
would violate the separation of powers clause.
*As the following suggests, the Florida courts are primarily interested in
determining whether the guidelines provided by legislature to executive branch
are sufficient to insure that it is the legislature, rather than the executive branch,
which has controlled the creation of the rule.

Delta Truck Brokers, Inc. v. King (Fla. 1962) - Page 114

Facts - Delta (B) sought to obtain auto transportation license transfer. Florida

26
Railroad and Public Utilities Commission denied. Statute provided vague
requirements in which to seek license. Even though it seemed as though B had
no such violations under the statute which would allow for denial, Commission
still denied arguing that statutory authority authorized it to “impose restrictions
on such transfer where the public interest may be served thereby.”
Issue - Whether the statute fails to provide accompanying legislative standards
to constitute a valid constitutional statute and gives the Commission legislative
powers?
Holding - NO. The legislative delegation of power to Commission is totally
devoid of any standards. It leaves to the Commission the authority to exercise
an unlimited discretion in forming its opinion as to when and how “the public
interest may be best served.”
Analysis - An applicant for a transfer has no legislative guide as to the showing
which he is required to make to meet this requirement.
Judgment - The sentence providing that “The commission may reasonably
alter, restrict or modify the terms and provisions of any such license or impose
restrictions on such transfer where the public interest may be best served
thereby” is declared unconstitutional and eliminated.

Astral Liquors v. Dept. of Business Regulation (Fla. 1985) - Page 115

Facts - Review of 3d DCA decision declaring valid Sec. 561.32(s), Fl. Stat.
Stat. states that transfer of existing beverage license not a matter of right & that
transfer may be denied w/in discretion of Division of Alcoholic Beverages
when administrative charges are pending against owner of license.
Holding - Statute stating that transfer of an existing beverage license is not a
matter of right and that the transfer may be denied within discretion of Division
of Alcoholic Beverages when administrative charges are pending against owner
of license was not an unconstitutional delegation of legislative power to the
Division.
Analysis - Where legislature authorizes an agency of the state to enforce a
statute enacted under the police power, legislature is not required to provide
specific rules to cover all conceivable situations that may confront the agency;
however, discretion granted an agency in those situations must be sufficiently
governed by legislative standards as to constitute a judicially reviewable
discretion.
• Operation of a liquor business is a privilege rather than a right
and state may, within exercise of its police power, regulate

27
 sale and possession of alcoholic beverages as well as the
conditions under which businesses selling alcoholic beverages
operate.
• Discretionary authority is necessary for agencies involved in
the issuance of licenses and the determination of fitness of
applicants for licenses.

1. Judicial Delegation of Judicial Power

• Whether a court has unconstitutionally delegated its
judicial power to another branch of government?
M.A.R. v. State (Fla. 5th DCA 1983) - Page 118
Facts - Appellant (a minor) committed battery on Gerald Foland at a party.
While Foland attempted to leave, Appellant and others smashed his widshield,
dented doors and slashed his tires while it was stuck in sand. Appellant
convicted of battery but not criminal mischief. As condition of community
control, Appellant ordered to make restitution under terms specified by HRS.
Holding - Trial court erred by delegating to H.R.S. determination of terms and
conditions of restitution for damages to victim's vehicle.
Analysis - Before restitution is ordered as a condition of probation (or
community control), trial judge should give  notice and opportunity to be heard
both as to appropriate amount of restitution and as to exact method and terms
of payment. (These matters are to be adjudicated by the judge and not
delegated).

Carnegie v. State (Fla. 2nd DCA 1985) - Page 118

Facts -  sentenced for battery and burglary. When sentencing , court departed
from guideline recommended range of 12-30 months and instead sentenced to
15 years. Court did not give reasons for its departure but directed state to
prepare and submit written reasons for departure.
Holding - Trial court improperly delegated to the State Attorney's Office a
responsibility belonging exclusively to the court, namely, delineating reasons
for sentencing guidelines departure, at least where the court did not itself
articulate any reasons for the departure, but merely stated that it intended to
incorporate into judgment and sentence written reasons for departure to be
submitted by the State at a later date.

CHAPTER 3 - THE LEGISLATURE - Page 121

28
 A. In General
• Article III, Section 1 - The Legislative Power of the state shall
be vested in the legislature of the State of Florida.

A. Constitutional Limitations
1. Subject Matter and Title Requirements:
• Article III, Section 6 - Single Subject Rule - Every law
shall embrace but one subject and matter properly
connected therewith, and the subject shall be briefly
expressed in the title. No law shall be revised or
amended by reference to its title only. Laws to revise or
amend shall set out full the revised or amended act,
section, subsection or paragraph of a subsection. The
enacting clause of every law shall read: “Be it enacted
by the Legislature of the State of Florida.”

a. Single Subject Limitation - The purpose of the

constitutional prohibition against a plurality of subjects
in a single legislative act is to prevent a single enactment
from becoming a “cloak” for dissimilar legislation
having no necessary or appropriate connection with the
subject matter. State v. Lee.

State v. Thompson (Fla. 1999) Case of 1st impression. - Page 122

Facts - 1/25/66, State filed charge against Thompson () for 3 criminal offenses
(robbery w/firearm, aggravated battery and possession of firearm by convicted
felon) occurring on 11/16/95. State then filed N/of intent to have  sentenced as
habitual offender pursuant to Fl. stat 775.084. Version affecting  was amended
by passage of 95-182 effective on 10/1/95. This amendment dealt with career
criminals and also addressed several aspects of domestic violence.  sought to
declare statute unconstitutional under single subject rule. Trial court denied
and  appealed. 2nd DCA reversed and found 95-182 did violate single subject
rule.
Holding - Chapter law that included creation of violent career criminal
sentencing category violated constitutional single subject requirement.
Analysis - When written sentencing order is inconsistent with the trial court's
oral sentencing pronouncement, the oral pronouncement controls.

29
 •  had standing b/c she committed her crimes b/w 10/1/95 (date
of enactment) and 5/24/97 (date of reenactment).
• The purpose of the constitutional prohibition against a
plurality of subjects in a single legislative act is to prevent
“logrolling” where a single enactment becomes a cloak for
dissimilar legislation having no necessary or appropriate
connection with the subject matter
• Chapter law that included creation of violent career criminal
sentencing category violated constitutional single subject
requirement, by addressing two different subjects, career
criminals and domestic violence; nothing in sections on career
criminals addressed domestic violence, and nothing in sections
on domestic violence addressed subject of career criminals,
and legislature did not identify broad crisis encompassing both
career criminals and domestic violence.
• In analyzing whether chapter law meets the requirements of
the single subject rule, court must review the various sections
of that chapter law to determine whether they have a natural or
logical connection.
• Where a defendant commits an offense during an applicable
window period but is sentenced after the unconstitutional
chapter law has been cured, it would be improper to
resentence the defendant under the valid laws in effect at the
time of the original sentencing, because those valid laws
would include the unconstitutional chapter law that has been
cured.

Salters v. State (Fla. 2000) - Page 129

Facts - 5/15/97, Florida filed an information charging Salters () w/strong arm
robbery on 4/27/97. ’s case went to trial in July 1997 and jury found  guilty.
Trial court adjudicated  guilty and deferred sentencing to later date. State then
filed request to have  declared a habitual felony offender, a habitual violent
felony offender, or violent career criminal. Guidelines sheet for offense ranged
from 27-45 months in prison. After hearing on 8/15/97, court sentenced  to 35
years w/30 yr mandatory minimum pursuant to Fl. Statute.  filed M/to correct
error arguing that State failed to prove that he qualified to be sentenced as a
violent career criminal. Trial court denied motion.  appealed. 4th DCA

30
affirmed conviction of strong-arm robbery and violent criminal sentence. 4th
DCA held that ’s opportunity to challenge sentence based upon
constitutionality of statute ended 10/1/96. Thus,  lacked standing to challenge
since offense occurred on 4/27/97. In so holding, 4th DCA certified conflict
w/2nd DCA’s decision in Thompson regarding close of the window period.
This certified conflict is now before this court.
Issue - Whether  has standing to challenge violent career criminal sentencing
on single subject grounds?
Holding - YES. Window period for challenge to violent career criminal
sentencing provisions on single subject grounds did not close until original
chapter law was reenacted as part of biennial adoption process.
Analysis - Challenge to violent career criminal sentencing provisions on single
subject rule grounds could be properly addressed for the first time on appeal,
although in the future defendants who had available the procedural mechanism
of recently amended rule governing correction of sentences would have to raise
a single subject rule challenge in the trial court prior to filing the first appellate
brief.
• The general rule for "curing" chapter laws that violate the
constitutional single subject rule is through the biennial
adoption process, although such a law can be cured by other
means as well.
 Exception - Martinez v. Scanlan (Fla. 1991) -
Legislature’s separation and reenactment of the
dissimilar provisions originally contained in a chapter
law can cure a single subject rule violation.
• Enactment of chapter law that only amended various enhanced
sentencing provisions did not cure single subject problems
implicated in original chapter law enacting violent career
criminal sentencing provisions, as amending chapter law did
not separate dissimilar provisions and reenact those provisions
into law separately, and thus, window period to challenge
violent career criminal sentencing provisions did not close
until original chapter law was reenacted as part of the biennial
adoption process.
• Loxahatchee River Environmental Control Dist. v. School Bd.
of P.B.C. (Fla. 1987) - How laws that violate single subject
rule generally are “cured.”

31
  Biennial Adoption Process - At every odd-yr regular
session, legislature, as part of its program of continuing
revision, adopts laws passed in preceding odd yr as
official statute laws and directs that they take effect
immediately under the title of “Florida Statutes” dated
the current yr.
 In Santos v. State (Fla. 1980), this Court held that when
laws passed by the legislature are adopted and codified
in this manner, the restrictions of Art. III, sec., pertaining
to one subject matter and notice in title no longer apply.
Judgment: - Quash that part of decision below that affirmed ’s sentence and
approve result reached by 2nd DCA in Thompson re; the applicable window
period. Further, Court reverses ’s violent career criminal sentence and remands
for resentencing in accordance w/valid laws in effect on 4/27/97, the date on
which  committed the underlying offense in this case.

Trapp v. State (Fla. 2000) - Page 134

Facts - 11/8/91, State filed information charging Trapp () w/aggravated battery
w/deadly weapon occurring on 10/23/91.  later plead no contest to agg/battery
w/firearm and trial court gave him 3yrs probation for this.  violated probation
several times. On 2/18/97, State filed info charging  w/attempted 1st degree
murder premeditated murder w/firearm on 1/10/97.  plead not guilty. Jury
found  guilty. Trial court then revoked probation of 1991 agg/battery charge. 
sentenced to 4 ½ yrs for agg/battery, concurrent w/ 12.9yr murder charge. B/c 
committed att/murder offense w/firearm, trial court imposed 3yr mandatory
minimum. In sentencing  on att/murder offense, Trial court used sentencing
guidelines as amended in chap. 95-184 which assessed him almost 1yr more
than under the 1994 guidelines.  raised single subject rule challenge to 94-184.
1st DCA determined that 95-184 did not violate single subject rule.
Issue - Whether Chapter 94-184 violates Article III, Section 6 of the Florida
Constitution?
Holding - YES. Chapter 94-184 does violates Art. III, Sec. 6 of the Florida
Constitution.
Issue - Whether 's offense fell within window period for challenging
constitutionality of sentencing guidelines?
Holding - YES. 's offense fell within window period for challenging
constitutionality of sentencing guidelines, abrogating Bortel.

32
Analysis - Where trial court orally imposes the mandatory minimum term at the
sentencing hearing, but the court fails to note the term on the written sentencing
order, the oral pronouncement controls.
• Window period for challenging the sentencing guidelines
provisions amended in 1995, which violated single-subject
rule of Florida Constitution, opened on October 1, 1995, when
such amended guidelines provisions became effective, and
closed on May 24, 1997, when amendments were reenacted as
part of the biennial adoption process; abrogating Bortel.
Judgment - Quash decision below w/directions that ’s sentence on the
attempted murder offense be reversed. Remand for resentencing in accordance
w/sentencing guidelines in effect before relevant amendments made in chapter
95-184 became effective.

Crawford v. State (Fla. 2000) - Page 138

Facts - 1st DCA declared constitutional 95-182, determining that such chapter
law does not violate single subject rule of Art. III, Sec. 6 (Fla. Const). This
ruling was in conflict w/2nd DCA decision in Thompson v. State (2d DCA
1998).
Judgment - Quash decision below and remand for resentencing in accordance
w/valid laws in effect on 1/5 & 6/97, the date on which Crawford () committed
offenses.

Hill v. State (Fla. 2000) - Page 139

Facts - 5th DCA affirmed Hill’s () violent career criminal sentences and
certified conflict w/2nd DCA decision in Thompson v. State.
Holding - Based on decision of State v. Thompson in which 95-182 held
unconstitutional as violative of single subject rule, decision below quashed and
remanded for resentencing in accordance w/valid laws in effect on 7/8/96, date
on which  committed offenses.

Santos v. State (Fla. 1980) - Page 139

Facts - Santos  charged w/crimes of DWI and driving w/unlawful blood alcohol
level in violation of 316.193, Fl. Stat.  contends that 316.193 violates single
subject rule.
Holding - Statute proscribing driving while intoxicated and driving with
unlawful blood alcohol level did not violate constitutional provision requiring

33
that each law embrace only one subject and matter properly connected with it.
Analysis - A plea of nolo contendere forecloses appeal of any issue, other than
the facial sufficiency of charging document, that is not specifically reserved for
appellate review.
• The constitutional requirement that the subject of the law be
briefly expressed in the title serves the purpose of providing
notice to interested persons of contents of an enactment.
• The purpose of the constitutional requirement that each law
embrace only one subject and matter properly connected with
it is to prevent subterfuge, surprise, "hodge-podge" and
logrolling in legislation.
• When laws passed by legislature are being codified for
publication in the Florida Statutes, constitutional requirements
that the subject of a law be briefly expressed in the title and
that each law embrace only one subject and matter properly
connected with it do not apply; the legislature is free to use
whatever classification system it chooses.
• Statute proscribing driving while intoxicated and driving with
unlawful blood alcohol level did not violate constitutional
provision requiring that subject of law be briefly expressed in
title and that each law embrace only one subject and matter
properly connected with it.

State v. Combs (Fla. 1980) - Page 140

Facts - Combs () charged w/1st degree murder, section 777.04, Fl. Stat.
(entitled Attempts, solicitations, conspiracy, generally). 1st 3 subsections
define the crimes and 4th provides appropriate punishment. Trial court agreed
w/ that 777.04 violated single subject rule.
Holding - The section defining attempts, solicitation and conspiracy and
providing appropriate punishment is not subject to challenge under single
subject requirement of the Florida Constitution in that it has been adopted or
reenacted as a portion of the Florida Statutes and is no longer a "law" in the
sense of an act of the legislature.
Analysis - Section defining attempts, solicitation and conspiracy and providing
appropriate punishment is not subject to challenge under single subject
requirement of Florida Constitution in that it has been adopted or reenacted as
portion of Florida Statutes and is no longer "law" in sense of an act of the

34
legislature which could violate single subject requirement.

North Ridge General Hospital v. City of Oakland Park (Fla. 1979) - Page
141
Facts - On 6/3/75, North Ridge (A) was notified by city official that its
property was annexed to City of Oakland () by act of legislature, chapter 75-
452. A filed declaratory action seeking injunction. A’s asserted that 75-452 is
unconstitutional in that it denied them equal protection of the law and b/c
notice of intent to seek enactment and the title of act were insufficient to inform
As of annexation. Circuit court rejected argument.
Holding - (1) Despite fact that notice of proposed special legislation did not
indicate that hospital's property, which was contiguous to city's boundaries and
situated in such a manner that its inclusion within city would be a logical
extension of such boundaries, would be annexed, terms of notice of intention to
seek enactment and title of act, which both clearly stated that subject of act was
annexation of property to city, were constitutionally sufficient, and (2) special
act annexing hospital's property to municipality without requiring a referendum
did not violate equal protection.
Analysis - Legislature has wide discretion in creating statutory classifications.
• There is a presumption in favor of validity of a statute which
treats some persons or things differently from others.
• Measure of violation of constitutional requirements must be
whether such published notice or title, as the case may be,
confuses as to the subject matter of the proposed legislation.
• Constitution requires only that notice be given of the subject
of proposed legislation, not that object of such legislation be
defined in the notice.
.1 Subject - matter to which an act relates;
.2 Object - purpose to be accomplished.
• Function of both notice of intention to seek enactment and title
of special legislative act is to provide reasonable notice to
person whose interests may be directly affected by proposed
legislation, so that he may inquire further into details and if he
desires, to prevent its enactment or persuade legislature to
change its substance.
• If terms of notice are broad enough so average person can
reasonably foresee that his interests might be affected by

35
 proposed legislation, notice given is constitutionally
sufficient.

1. Appropriation Bills (Page 143)

• Article III, Section 12 - Appropriation Bills - Laws
making appropriations for salaries of public officers and
other current expenses of state shall contain provisions
on no other subject.
• Are subject to a special “one subject” requirement which
provides they can only deal w/payment of salaries of
public officers and other current state expenses.

Department of Education v. Lewis (Fla. 1982) - Page 143

Facts - Appropriations bill challenged.
Issue - Whether the proviso violates Art. III, Section 12?
Holding - YES. Proviso violates Art. III, Section 12 of Florida Constitution.
Analysis -Proviso was not directly and rationally related to appropriation of
state funds to postsecondary institutions and students but was designed to
further legislative objective unrelated to such funding and was thus
unconstitutional; and provision also violated constitutional guarantee of
freedom of speech.
• While reasonable regulations pertaining to time, place, and
manner may be imposed upon exercise of right to public
expression or views, such regulations must not be based upon
content of the speech; they must be content-neutral.
• FIRESTONE TEST - To determine whether the restrictions
and provisos in appropriation bills violate Article III, Section
12:
.1 If a provision in an appropriation bill
changes existing law on any subject
other than appropriations, it is invalid.
.2 A qualification or restriction must
directly and rationally relate to the
purpose of the appropriation to which it
applies.

3. When Laws Take Effect

36
 • Article III, Section 9 - Effective Date of Laws - Each
law shall take effect on the 16th day after adjournment
sine die (without appointment/day) of the session of the
legislature in which enacted or as otherwise provided
therein. If the law is passed over the veto of the
governor it shall take effect on the 16th day after
adjournment sine die of the session in which the veto is
overridden, on a later date fixed in the law, or on a date
fixed by resolution pass by both houses of the
legislature.
• Generally, effective date is in newly acted law or if none,
then on the 16th day after adjournment sine die.

Opinion of the Attorney General (July 13, 1973) - Page 146

*Response to Senator request for an opinion on:
Facts - Senate Bill 620 make reference to August 1, 1974 when it seems from
the language of the Bill that it should be referencing 1973.
Question: In construing a statute, should the specific detailed provisions in the
body of the act and the legislative intent thereby expressed supersede and
control over an effective-date clause in conflict with such intent?
Answer - YES. Legislative intent, clearly expressed, must be given effect,
even though this requires the substitution of words inadvertently omitted or the
correction of other clerical errors.
• When legislative intention can be ascertained w/reasonable
certainty, words may be altered or supplied in the statute so as to
give it effect, and to avoid any repugnancy to or inconsistency
w/such intention.

4. General Laws, Special Laws and General Laws of Local

Application:
• Article III, Section 10 - Special Laws - No special law
shall be passed unless notice of intention to seek
enactment thereof has been published in the manner
provided by general law. Such notice shall not be
necessary when the law, except the provision for
referendum, is conditioned to become effective only
upon approval by vote of electors of area affected.

37
 • Article III, Section 11 - Prohibited Special Laws:
.a There
shall
be no
specia
l law
or
genera
l law
of
local
applic
ation
pertai
ning
to:
)1 Gives list of
21 things
(page 148-
149).
*All newly enacted laws are subject to one subject and title requirements (Art.
III, Section 6). Additional restrictions apply to special laws, local laws, and
general laws of local application, which are not applicable to general laws.

38
Pages 205-290

5. Article V, Section 3(b)(4) - May review any decision of a district

court of appeal that passes on a question certified by it.

Rupp v. Jackson (Fla. 1970) - Page 205

Facts - Tort action against Broward County medical examiner for alleged
unauthorized autopsy. Examiner raised defense authority of law by virtue of
his official position. Summary judgment granted for examiner and DCA
reversed.
Issue - Whether the form of the certificate comports with constitutional
requirements.
Holding - Art. V, Sec. 4(2) is not viewed as requiring that a specific question
be set out as certified b/c in any event the Supreme Court is privileged to
review the entire decision and record.
Analysis - Article V, Section 4(2) “The supreme court may review by
certiorari any decision of a DCA that affects a class of constitutional state
officers, or that passes upon a question certified by the DCA to be of great
public interest, or that is in direct conflict w/another decision of another DCA
or of the Supreme Court on the same point of law, and may issue writs of cert
to commissions established by law.”
• The Supreme Court is precluded from questioning the
appropriateness of a DCA decision to certify a decision and
thus the Court concluded from the fact of certification per se
that, whatever its limited perception of the question may be,
the DCA was satisfied such a question is contained in the
decision.
• If specific question does not appear in certificate then question
of great public interest becomes evident as the decision is
reviewed.
• Presentation of precise question enhances probability that
Court will pass upon the specific question. Further,
preciseness may contribute to decision whether to pass upon
the decision, a decision solely w/in control of Supreme Court
under the Constitution.

Petrik v. New Hampshire Insurance Company (Fla. 1981) - Page 207

39
Facts - Parents in son’s vehicle when son ran into another vehicle. Son’s
insurance company excluded bodily injury coverage to insured’s relatives.
Parents sued other vehicle’s driver. Other driver filed 3rd party complaint
seeking contribution against ins co. Court granted summary judgment on issue
of coverage against ins co. On appeal, ins co. sought reversal contending
clause was valid. District court rejected and certified question as to “whether a
family exclusion clause in auto ins policy control over contribution among joint
tortfeasors act to prevent one tortfeasor from seeking contribution from
another?” Party adversely affected by district court’s resolution of this
question did not seek review.
Holding - Even though district court has certified this question as being one of
great public interest, the Supreme Court did not have jurisdiction b/c the
certified question had not been brought to them for review.
• Supreme Court does not have jurisdiction to review other
issues.

6. Article V, Section 3(b)(4) - May review any decision of a district

court of appeal...that is certified by it to be in direct conflict with a
decision of another district court of appeal.

Davis v. Mandau (Fla. 1981) - Page 209

Holding - Where the conflict certified has not been brought to use for review,
the Supreme Court does not have jurisdiction.

Curry v. State (Fla. 1996) - Page 209

Holding - Jurisdiction is improper where certified conflict between two cases is
said to occur but later found that no conflict exists.

6. Article V, Section 3(b)(5) - May review any order or judgment of a

trial court certified by the DCA in which an appeal is pending to be
of great public importance, or to have a great effect on the proper
administration of justice throughout the state, and certified to
require immediate resolution by the Supreme Court.

Department of Insurance v. Teachers Insurance Company (Fla. 1981) -

Page 211
Dissenting Opinion given

40
Discussion - Where a matter is of great public importance but lacks the
immediacy which Article V, Section 3(b)(5) demands then jurisdiction should
be lacking.
• Immediacy must relate to something other than the dollar
significance of the legal question or the number of persons it
affects, although those matters may affect the “importance” of
the case.
• Would apply these standards to Section 3(b)(5) cases:
.1 Neither counsel in lawsuits or district
court judges should control the Court’s
decision making priorities.
.2 In order to give effect to the
“immediacy” requirement, cases
accepted for bypass should be reserved
for those rare instances when it is
necessary to preserve integrity of
operation of governmental system; and
.3 In general, validity or invalidity of
statute, or a construction of federal or
state constitution, presents no inherent
potential for meeting the immediacy
prong of Section 3(b)(5).

8) Article V, Section 3(b)(6) - May review a question of law certified

by the Supreme Court of the United States or a United States Court
of Appeals which is determinative of the cause and for which there
is no controlling precedent of the Supreme Court of Florida.

WRITS:
• Florida Supreme Court possesses a limited amount of original
jurisdiction. Must be exercised by certain discretionary legal
writs (prohibitions, mandamus, quo warranto, habeas corpus,
and all writs necessary to the complete exercise of its
jurisdiction.

1) Article V, Section 3(b)(7) - May issue writs of prohibition to

courts...

41
Moffitt v. Willis (Fla. 1984) - Page 216
Facts - Newspapers (A) sued Speaker of House and President of Senate () for
declaratory judgment. Complaint alleged that during May and June 1981, both
held secret meetings in violation of legislative rules and 1st and 14th
Amendment violations.  filed motion to dismiss on ground circuit court lacked
jurisdiction over subject matter under constitutional doctrine of separation of
powers b/c complaint relates to Florida Senate and Florida House of Reps.
Hearing held and judge ordered A’s were entitled to ruling under Florida
Statute. A’s seek writ of prohibition to have order quashed and complaint
dismissed. This court agreed and dismisses civil action pending in 2nd judicial
circuit.
Issue - Whether the Supreme Court has jurisdiction to prohibit proceedings in
the circuit court?
Holding - YES. This court may issue writs of prohibition to courts.
Analysis - The 1980 Amendment to Art. V, Section 3(b)(7) was presented to
public as necessary to narrow this Court’s jurisdiction in order to reduce its
case load selectivity.
• It is only necessary to show that on the face of the matter it
appears that a lower court is about to act in excess of its
jurisdiction in a case which is likely to come w/in this Court’s
jurisdiction to review it.
• It is the final product of the legislature that is subject to review
by the courts, not the internal procedures.
• The constitutionality of the rules themselves is not challenged
here. The only issue argued is that of the propriety and
constitutionality of certain internal activities of members of
the legislature. It is a legislative prerogative to make, interpret
and enforce its own procedural rules and the judiciary cannot
compel the legislature to exercise a purely legislative
prerogative.
• Just as the legislature may not invade the Court’s province of
procedural rulemaking for the court system, the Court may not
invade the legislature’s province of internal rulemaking.

English v. McCrary (Fla. 1977) - Page 220

Facts - A (English) filed for petition for writ of prohibition with DCA where he

42
alleged that he was reporter and was refused permission into hearing of
dissolution proceedings of Morrison (an elected State Attorney). A argued that
judge failed to give him good reason for exclusion of press and argued that
public had a real and genuine interest in litigation involving public official.
Issue - Whether a writ of prohibition should have been ordered?
Holding - NO. Prohibition is an extraordinary writ, a prerogative writ,
extremely narrow in scope and operation, by which a superior court, having
appellate and supervisory jurisdiction over an inferior court or tribunal
possessing judicial or quasi-judicial power, may prevent such inferior court or
tribunal from exceeding jurisdiction or usurping jurisdiction over matters not
within its jurisdiction.
Analysis - Prohibition writ is preventative and not corrective.
• Prohibition will be invoked only in emergency cases to
forestall an impending present injury where person seeking
writ has no other appropriate and adequate legal remedy.
• Circuit courts of the State of Florida have exclusive
jurisdiction of all cases in equity, cases at law, and all criminal
cases not cognizable by inferior courts.
• Abuse of discretion by inferior tribunal acting within its
jurisdiction is not a matter to be determined by prohibition.
The suggestion of writ of prohibition must affirmatively show
lack of jurisdiction in the lower court.

• Article V, Section 3(b)(7) - May issue...all writs necessary to

the complete exercise of its jurisdiction.

Besoner v. Crawford (Fla. 1978) - Page 224

Facts - Case filed w/court as application for constitutional or other necessary
writ pursuant to Florida Appellate Rule 4.5(g) (Constitutional writs).
Analysis - Application is not sought to protect existing jurisdiction of the court
but instead seeks to use the constitutional all writs power of the court as an
independent basis for jurisdiction. (Application for writ thus denied).

St. Paul Title Insurance Corporation v. Davis (Fla. 1980) - Page 225
Facts - Petitioner seeks petition under “all writs necessary” provision of V(3)
(b)(7). Petitioner seeks review of district court decision affirming per curiam

43
decision w/out opinion.
Issue - Whether this court may issue writ in this matter?
Holding - NO. We will not allow the “all writs necessary” provision of Section
3(b)(3) and the holding in Jenkins v. State that we lack jurisdiction to review
per curiam decisions of the several district courts of appeals of this state
rendered w/out opinion when basis for such review is an alleged conflict of that
decision with another.
Analysis - The “all writs necessary” provision may not be used as an
independent basis of jurisdiction.
Dissenting - This case relied upon Shevin and Besoner. This still leaves largely
unanswered the question, does the Supreme Court actually have to have
jurisdiction before the all writs provision can be used or can all writs be used in
the Court may obtain jurisdiction of the matter in the future. The latter would
seem to be the most likely.

• Article V, Section 3(b)(8) - May issue writs of mandamus and

quo warranto to state officers and state agencies.
• Writ of mandamus - lies to compel a public officer to perform
a ministerial duty. The writ cannot be used to compel a public
officer or public agency clothed with discretion to exercise
that discretion in a given manner. This is only the case if there
is no adequate legal remedy.

4. Article V, Section 3(b)(9) - May, or any justice may, issue writs of

habeas corpus returnable before the supreme court or any justice, a
district court of appeal or any judge thereof, or any circuit judge.
• Circuit, district and supreme courts all have concurrent
jurisdiction in habeas corpus.

Florida Parole and Probation Commission v. Baker (Fla. 2nd DCA 1977) -
Page 229
Facts - Baker () petitioned for writ of habeas corpus with both the district court
and 2nd DCA. 2nd DCA denied petition prior to ruling by district court.
Holding - A petitioner may not have three direct, repetitious applications for
habeas corpus available upon the same subject matter.
• Circuit, district and supreme courts all have concurrent

44
 jurisdiction in habeas corpus. (But not repetitious applications
upon same subject matter).
• The defense of res judicata is established on this record.

*The remedy of habeas corpus is not available as a substitute for post-

conviction relief under rule 3.850 of the Florida Rules of Criminal Procedure.

2. District Courts of Appeal:

• Article V, Section 4(b) - Jurisdiction:
.1 DCA’s shall have jurisdiction to hear
appeals, that may be taken as matter of
right, from final judgments or orders of
trial courts, including those entered on
review of administrative action, not
directly appealable to supreme court or
circuit court. May review interlocutory
orders in such cases to extent provided
by rules adopted by supreme court.
.2 DCA shall have power of direct review
of administrative action, as prescribed
by general law.
.3 DCA or any judge thereof may issue
writs of habeas corpus returnable before
court or any judge thereof or before any
circuit judge w/in territorial jurisdiction
of court. DCA may issue writs. To
extent necessary to dispose of all issues
in a cause properly before it, a DCA
may exercise any of appellate
jurisdiction of the circuit courts.

A. In General:
Article V, Section 4(b)(1) - DCA’s shall have jurisdiction to hear appeals, that
may be taken as matter of right, from final judgments or orders of trial courts,
including those entered on review of administrative action, not directly
appealable to supreme court or circuit court.

45
“Standards Governing Certiorari Review”
City of Deerfield Beach v. Vaillant (Fla. 1982) - Page 233
Facts - Vaillant terminated and appealed to Civil Service Board which upheld
termination. Vaillant then appealed to circuit court which reversed. City
appealed to 4th DCA which treated as writ of certiorari and denied. City argues
that it is entitled to appeal as a matter of right.
Issue - Whether a final judgment of circuit court reviewing administrative
action is subject to appeal in DCA or whether this judgment is reviewable only
by writ of certiorari?
Holding - NO. Where full review of administrative action is given in circuit
court as a matter of right, one appealing circuit court’s judgment is not
entitled to second full review in district court.
Analysis - Where a party is entitled as a matter of right to seek review in circuit
court from administrative action, the circuit court must determine whether
procedural due process is accorded, whether the essential requirements of the
law have been observed, and whether the administrative findings and judgment
are supported by competent substantial evidence.
• The DCA, upon review of the circuit court’s judgment, then
determines whether the circuit court afforded procedural due
process and applied the correct law.
• District court pointed out that controversy over which method
of review is available in district court is engendered by the use
of the words “certiorari” and “appeal” synonymously w/the
intention of denoting a seeking out of a higher review and that
type of “certiorari” sought in the circuit court here was not
discretionary review but rather a review to which Vaillant was
entitled to as a matter of right.

Seminole Board of County Commissioners v. Long (Fla. 5th DCA 1982) -

Page 235
No facts given
• Appellate Courts scope of review might be as broad as, but
never broader than, the circuit court’s scope of review of the
administrative action.
• The Constitution gives litigants the right to one appeal from
initial judicial action.
• Primary purpose of judicial review of executive action under

46
 the constitution (State) is to prevent arbitrary fact-finding and
actions by the executive.
• The county court judgment is presumed to have been correctly
reached in an impartial and detached judicial forum and, on
review by appeal, the circuit court is required to defer to the
fact findings of the county court, it being the initial judicial
tribunal; on certiorari review, the district court should defer to
the substantive law applied by the circuit court as appellate
court and review the circuit court action only for procedural
due process.

Educational Development Center, Inc. v. City of West Palm Beach Zoning

Board of Appeals (Fla. 1989) - Page 237
Facts - District Court granted cert and quashed order of circuit court
overturning decision of administrative agency. However, the District Court’s
opinion conflicts w/City of Deerfield.
Issue - What is the extent of the district court’s certiorari review?
Analysis - (City of Deerfield Beach v. Vaillant) When circuit court reviews
decisions of administrative agency under Florida Rule of Appellate Procedure
9.030(c)(3), there are three distinct components of its certiorari rights:
• Where a party is entitled as a matter of right to seek review in
the circuit court from administrative action, the circuit court
must determine whether procedural due process is accorded,
whether the essential requirements of the law have been
observed, and whether the administrative findings and
judgment are supported by competent substantial evidence.
Standard of review to guide district court when it reviews the circuit court’s
order under 9.030(b)(2)(B) is necessarily narrower. The standard for the
district court has only two distinct components:
• District court, upon review of circuit court’s judgment, then
determines whether the circuit court afforded procedural due
process and applied the correct law.
*Common sense dictates that no one enjoys three full repetitive reviews to:
A. A civil service board;
B. A circuit court;
C. A DCA.
Dissenting Opinion - Felt that the appellate court, in assessing the facts the trial

47
judge failed to apply the right law, and, thus, the appellate court’s review
comported with City of Deerfield.

Cherokee Crushed Stoned v. City of Miramar (Fla. 4th DCA 1982) - Page
242
Facts -
Issue - Does Article V, Section 4(b)(1) guarantee the right to a plenary appeal
from a non-final order of a circuit court which has exercised its certiorari
jurisdiction to review administrative action?
Holding - MAYBE. What must be decided is the nature and extent of review
that should be accorded by the district court to administrative action of an
agency not subject to the Administrative Procedure Act (APA) and initially not
“appealable” to the circuit court by virtue of general, special or decisional law.
(In this instance, YES).
Analysis - Must determine in each case whether a party is entitled as a matter
of right to seek review in the circuit court from administrative action. There
are 3 possibilities:
1. Action by agency w/in penumbra of APA which is
appealable directly to district court;
2. Action by agency which the law makes appealable
to circuit court; and
3. Action by agency which is reviewable only by
certiorari to the circuit court.
• Review by certiorari under these circumstances is mandatory, not
discretionary, and that the scope of review by the circuit court
includes determinations as to whether the administrative agency:
1. Accorded procedural due process;
2. Observed the essential requirements of the law; and
3. Supported its findings by substantial competent evidence.
• Review by certiorari in appellate capacity:
4. Accorded procedural due process; and
5. Applied the correct law.

1. Article V, Section 4(b)(1) - The DCA may review interlocutory

orders in such cases to the extent provided by rules adopted by the
supreme court.

48
 1. Article V, Section 4(b)(2) - DCA shall have the power of direct
review of administrative action, as prescribed by general law.

Sweetwater Utility Corp. v. Hillsborough County (Fla. 2nd DCA 1975) -

Page 247
Facts - Board of County Commissioners made ordinance with made
determination of rates of return for franchised sewer utilities and Sweetwater
filed in 2nd DCA a petition for writ of certiorari seeking review of certain
portions of this ordinance. At same time, Sweetwater filed complaint for
declaratory judgment and other relief regarding same ordinance with the circuit
court. County filed m/dismiss in 2nd DCA stating that Board is not an agency
subject to judicial review under provisions of new administrative procedure
Act. (Fla. Stat. 120.68 call for judicial review of final agency action in
applicable DCA...).
Issue - Whether Board was agency subject to judicial review under provisions
of new administrative procedure act which would give DCA power of direct
review?
Holding - NO. There appears to be no existing judicial decision which would
characterize a board of county commissioners as an agency for purposes of
judicial review under the new administrative procedural act. Further, no
general or special law makes such boards subject to this act.

Eckert v. Board of Commissioners of the North Broward Hospital District

(Fla. 4th DCA 1998) - Page 248
Facts - Eckert (Doctor) had hospital privileges revoked by Hospital pursuant to
Florida Statute. Board of Commissioners upheld. Eckert seeks writ of
certiorari in the 4th DCA.
Issue - Whether the 4th DCA has jurisdiction for review in this matter?
Holding - NO. Unless there is a contrary procedure established by law, review
of final action by local administrative bodies is by certiorari to the circuit court.
Analysis - The correct method for review of an administrative action depends
on whether the action was by a state agency that is subject to the
Administrative Procedure Act (APA) or a local administrative body not subject
to APA.
• Article V, Section 4(b)(2) grants DCA’s power of direct
review of administrative action, as prescribed by general law.

49
 • Florida Rules of Appellate Procedure 9.030(b)(1)(C) provides
that judicial review of administrative action shall be by appeal,
if provided by general law.
• If administrative agency does not qualify as a state agency
under the APA, it is considered to be a local administrative
body whose decisions are reviewable by certiorari in the
circuit court.
• North Broward Hospital District is a special taxing district,
created by special law, that operates wholly w/in Broward
County and that has not been expressly made subject to the
APA. No provision of general law confers jurisdiction on this
court to review District’s decision.

State Commission on Ethics v. Sullivan (Fla. 1st DCA 1983) - Page 252
Concurring opinion given
Analysis:
• Under the rubrics of primary jurisdiction, deference to the
executive branch, and exhaustion of administrative remedies, a
judicial policy has evolved which significantly impacts upon
these Chapter 86 rights. In my view, this judicial policy as it
has developed is fundamentally misconceived: it assumes that
exhaustion of administrative remedies is a question of judicial
policy, based primarily on deference to the executive branch;
the courts appear to ignore the fact that administrative
agencies and remedies are created by the legislature and, as
the US Supreme Court put it, “the initial question whether
exhaustion is required should be answered by reference to the
congressional intent; and a court should not defer the exercise
of jurisdiction under a federal statute unless it is consistent
with that intent.
• Key Haven v. Board of Trustees (Fla. 1982) - Clearly, the
determination of whether a particular controversy may be
taken out of the administrative process and into a circuit court
is a question of judicial policy and not a matter of judicial
jurisdiction. Judicial intervention in the decision-making
function of the executive branch must be restrained in order to
support the integrity of the administrative process and to allow

50
 the executive branch to carry out its responsibilities as a co-
equal branch of government.

Ford Motor Company v. Ward (Fla. 4th DCA 1991) - Page 259
Facts - Lemon law case against Ford. Partial summary judgment was granted
for Ward.
Issue - Whether the Court is obligated to defer to the executive branch when
one of the parties creates such a scenario that the judiciary considers such
deference contrary to the administration of justice and the principles of waiver
and estoppel?
Holding - NO. This Court refused to apply the standard as set forth in Key
Haven.

E. Article V, Section 4(b)(3) - A DCA or any judge thereof may issue

writs of habeas corpus returnable before the court or any judge
thereof or before any circuit judge within the territorial jurisdiction
of the court.

Futch v. State (Fla. 3d DCA 1982) - Page 262

Facts - This is an appeal from summary denial of motion claiming ineffective
assistance of appellate counsel in connection w/affirmance of prisoner’s
judgment and sentence.
Issue - Whether this court has jurisdiction?
Holding - YES. This court does have jurisdiction over this matter. However, it
denies writ because appellants contentions were found to be untrue.
Analysis - Baggett v. Wainwright (Fla. 1969) - Where habeas corpus is sought
to vindicate deprivations of right to appeal, or necessary incidents thereof,
ultimate relief afforded is the opportunity for full appellate review by way of
habeas corpus in DCA (except in situations where jurisdiction lies in Supreme
Court, Section 4(2)) of the district where petitioner was confined at time of
sentencing, the soundest and most expeditious procedure should require the
application for a writ challenging such alleged deprivations to be filed in the
same district court which is empowered to grant the ultimate relief. This
procedure would not only operate to balance out and minimize the judicial
labor in proceedings of this kind, but would also create less procedural
difficulties. If factual determinations are deemed necessary before a circuit
judge of that district or appoint a commissioner to make necessary factual

51
determinations.
• The Court feels that the above is sufficiently broad enough to
properly invoke its jurisdiction.

5. Article V, Section 4(b)(3) - A DCA may issue writs of mandamus,

certiorari, prohibition, quo warranto, and other writs necessary to
the complete exercise of its jurisdiction.

Cash v. Smith (Fla. 1st DCA 1985) - Page 263

Facts - Inmates filed petition to determine validity of proposed Department of
Corrections rule with the Division of Administrative Hearings (DOAH).
Smith, Director of DOAH, dismissed petition by administrative order. This
order was rendered on 8/9/84. On 8/8/84, inmates filed document w/1st DCA
seeking writ of mandamus, writ of prohibition and constitutional stay writ.
Inmates also argued that they had not been served w/order of dismissal until
9/10/84, too late to filed timely notice of appeal.
Issue - Whether this court has jurisdiction to hear these petitions?
Holding - NO.
Analysis - Since petitioners do not seek review of a conviction or of a denial of
post conviction relief, the rationale for utilizing writ of habeas corpus is not
present.
• Writ of mandamus does not lie b/c petitioners are not seeking
to coerce respondent to perform an official, ministerial duty
which she is required to perform.
• Writ of prohibition inapplicable b/c petitioners not requesting
this court to prevent respondent from exercising authority in
matter over which she has no jurisdiction.
• In construing Art. V, Section 3(b)(7) “other writs,” the
Supreme Court has held that it cannot be used as an
independent basis of jurisdiction.
• The present application is not sought to protect existing
jurisdiction of the court, it seeks an independent basis for
invoking its jurisdiction.

Common Law Certiorari (IMPORTANT CASE)

Haines City Community Development v. Heggs (Fla. 1995) - Page 265
Facts -

52
Issue - After Education Development Center, Inc. v. City of WPB (Fla. 1989),
does the standard of review in Combs v. State (Fla. 1983), still govern a DCA
when it reviews, pursuant to Florida Rule of Appellate Procedure 9.030(b)(2)
(B), an order of a circuit court acting in its review capacity over a county court?
Holding - YES. The standards of review announced in Combs and Educational
Development Center are the same.
Analysis - Certiorari correction of a circuit court’s appellate decision should
be made “only when there has been a violation of a clearly established
principle of law resulting in a miscarriage of justice.” (This type of
correction is very rare).
• Circuit court review of an administrative agency decision
under Appellate Procedure Rules is governed by three-part
test:
.1 Whether procedural due process
accorded;
.2 Whether essential requirements of law
have been observed; and
.3 Whether administrative findings and
judgment are supported by competent
substantial evidence.
• Review for certiorari in DC requires only (1) and (2). More
narrow review.

State v. Pettis (Fla. 1988) - Page 273

Facts - Pettis () charged w/drug offense. State made pretrial motion in limine
to prevent  from questioning officer about 5 prior departmental reprimands
unrelated to . Trial Court denied motion. State filed petition for certiorari. 4th
DCA granted cert and quashed the order.  filed motion for rehearing stating
that state could not appeal order b/c it had no authority to seek review in that it
was not final order. Thus, DCA reversed itself and denied upon authority of
Jones v. State.
Issue - Whether the Appellate Court may invoke jurisdiction for a writ of
certiorari of an order by a trial court that is not a final order?
Holding - YES. Under Florida law, if the requirements permitting certiorari
jurisdiction otherwise exist, a pre-trial order excluding evidence which has the
effect of substantially impairing the ability of the state to prosecute its case is
subject to certiorari review.

53
Analysis - The right of appeal from final judgment is prescribed by statute.
The review of non-final orders is controlled by court rule. State appeals from
certain non-final orders are authorized by Rule of Appellate Procedure 9.140(c)
(1)(B)
• The Court agrees that the trial judge erred in permitting the
officer to be questioned concerning unrelated reprimands.
However, it cannot say that the ruling was a departure from
the essential requirements of law. While some pretrial
evidentiary rulings may qualify for certiorari, it must be
remembered that the extraordinary writ is reserved for those
situations where “there has been a violation of a clearly
established principle of law resulting in a miscarriage of
justice.” (Combs v. State (Fla. 1983)).
Concurring Opinion in result only - Common law certiorari is an extremely
limited remedy which is not to be used as a substitute for an appeal. The scope
is supposed to be limited to issues of jurisdiction and procedural regularity.
• Appellate courts should not be “as concerned with mere
existence of legal error as much as with the seriousness of the
error.” (Combs v. State). Clearly, as held by the majority, the
circumstances do not meet this test but believes that mixed
signals are being sent to district courts of appeals of this use of
common law certiorari for review of criminal actions.
• Should provide state a broader but controlled means of
discretionary review of non-final orders rather than attempt to
utilize common law certiorari jurisdiction in a manner that
may compromise the basic principles for which that review
process was created.
Dissenting - Believes the majority adopts an overly restrictive view of this right
to petition for certiorari. Does not agree that trial judge’s error was not a
departure from the essential requirements of law.
Metropolitan Dade County v. Blumenthal (Fla. 3d DCA 1995) - Page 283
Dissent opinion given
Facts - Per curiam court quashed judgment of circuit court and remanded
w/directions to reinstate county commission resolution. Per curiam court found
that issues presented are substantial ones and fall w/in this court’s scope of
discretionary review as detailed in Haines v. Heggs (Fla. 1995).
Analysis - (By Dissenting) - Would deny petition for writ of certiorari b/c

54
circuit court in its appellate decision did not depart from those requirements of
law which are deemed essential to the administration of justice. That is,
1. The circuit court did not deny petitioner procedural due
process;
2. The circuit court did not exceed its jurisdiction in entertaining
the cause below; &
3. The circuit court did not commit an error so fundamental in
character as to fatally inject the judgment below and render it
void as a miscarriage of justice.
 Thus, certiorari should be denied.

G.B.V. Intern, Limited v. Broward County (Fla. 4th DCA 1998) - Page 287
Facts - Developer seeks common law certiorari review of order of circuit court
denying initial certiorari review of denial of application for plat approval.
Issue - Whether this court may grant jurisdiction under a common law writ of
certiorari?
Holding - YES. Certiorari correction of a circuit court’s appellate decision
should be made “only when there has been a violation of a clearly established
principle of law resulting in a miscarriage of justice. (Haines City v. Heggs
(Fla. 1995)).
Analysis - The circuit court reached beyond the Commission’s stated reasons
and decided the application on a basis not raised before the County
Commissioners.
• Thus, the circuit court’s decision was a departure from the
essential requirements of law while sitting in certiorari review
of local government action and a denial of procedural due
process.

Stilson v. Allstate Insurance Company (Fla. 2d DCA 1997) - Page 288

Facts - Summary judgment granted in county court on Stilson’s PIP coverage
claim. Circuit court affirmed without written opinion.
Issue - Whether the DCA has jurisdiction over the circuit court’s affirmance of
the county court’s grant of summary judgment?
Holding - NO. Even though summary judgment was improperly granted, the
DCA lacks authority in this matter to correct the county’s error b/c the circuit
court’s affirmance did not violate “clearly established principle of law resulting
in miscarriage of justice.”

55
Analysis - It is well established that certiorari should not be used as a vehicle
for a 2nd appeal in a typical case tried in county court.
• The Supreme Court has cautioned the district courts to be
prudent and deliberate when deciding to exercise this
extraordinary power, but not so wary as to deprive litigants
and the public of essential justice.

1. Circuit Courts and County Courts:

• Article V, Section 5(b) - Jurisdiction - The circuit courts
shall have original jurisdiction not vested in the county courts,
and jurisdiction of appeals when provided by general law.
They shall have the power to issue writs of mandamus, quo
warranto, certiorari, prohibition and habeas corpus, and all
writs necessary or proper to the complete exercise of their
juris\diction. Jurisdiction of the circuit court shall be uniform
throughout the state. They shall have the power of direct
review of administrative action prescribed by general law.
• Article V, Section 6(b) - Jurisdiction - The county courts
shall exercise jurisdiction prescribed by general law. Such
jurisdiction shall be uniform throughout the state.
*Circuit Courts are general trial courts in Florida.

56
Pages 291-318

COURTS - Chapter 4 (cont.)

3. Circuit Courts & County Courts (cont.)

G-W Development Corp. v. Village of No. Palm Beach Zoning Board pg 291
4th DCA 1975
FACTS - FSA providing for statutory review of municipal zoning decisions
was repealed; N. Palm Beach didn’t implement FSA 163.250 by
ordinance to provide for review of municipal decisions; N. Palm Beach
had adverse decision from Municipal Zoning Board, petitioned for writ of
certiorari in circuit court
ISSUE - Does the circuit court have jurisdiction to review quasi-judicial
decisions by municipal zoning boards when there is no statutory authority
to do so?
HOLDING - YES; although circuit court didn’t have jurisdiction by statutory
certiorari, it had jurisdiction via common law certiorari; Article 5, §5(b) -
circuit courts “shall have the power of direct review of administrative
action prescribed by general law;” 2 independent jurisdiction bases for
reviewing administrative actions are 1) common law certiorari, and 2) by
general law a/k/a statutory certiorari ----- 4 things that distinguish the 2
1) common law generally available only “where no direct appellate
proceedings are provided by law;
2) common law entirely discretionary;
3) common law scope of review limited and much narrower; goes
only to jurisdiction and legality or regularity in procedure;
4) common law only to review judicial or quasi-judicial action,
NEVER purely legislative action
legislative intent of A5, S5 was to provide statutory and common law
review - “power to issue writ of certiorari” means common law and
“power of direct review of administrative action prescribed by general
law” is statutory certiorari; where legislature doesn’t provide statutory
cert, common law cert is available

Board of County Com’rs. v. Casa Development, Ltd. (2d DCA) pg 294

FACTS - Casa Development applied for a H2O & sewer franchise, county
board denied it w/out a hearing

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ISSUE - Did the circuit court have the power to review the county board’s
action of denying an application for a H2O & sewer franchise via writ of
certiorari?
HOLDING - NO; Special Act authorized the county to issue H2O & sewer
franchises, provision on reviewing board actions - §7 and Casa followed;
this special law doesn’t work under Article 5, §5 circuit courts power to
review “administrative action prescribed by general law” b/c doesn’t
qualify as a general law; if agencies & boards act in quasi-
executive/legislative way remedy is declaratory/injunctive relief on
grounds that action taken is arbitrary, capricious, confiscatory or violative
of constitutional guarantees; here, a quasi-legislative action - special act
had no criteria to require issuing a franchise under specific circumstances
- all that happened was negotiating for a franchise
TEST FOR QUASI-JUDICIAL ACTION - administrative
proceeding includes a hearing w/ notice & affected party is given
fair opportunity to be heard

Board of County Com’rs. of Brevard County v. Snyder (1993) pg 296

FACTS - land in 100 year flood plain restriction, wanted land elevated & re-
zoned, county commissioners had little hearing, denied w/out reasons
stated
ISSUE - case in direct conflict w/ other cases; was boards action quasi-judicial?
HOLDING - landowner who wants to re-zone has burden of proving proposal
is consistent w/ comprehensive plan and complies w/ zoning ordinance
procedures, then burden shifts to board to show maintaining existing
zoning classification accomplishes a legitimate public purpose & isn’t
arbitrary, discriminatory or unreasonable; zoning decisions generally
legislative, but those including application of general rule or policy to
specific individuals, interests or activities is quasi-judicial; zoning
decisions reviewable by certiorari as review of a quasi-judicial act if 1) it
affects limited number of property owners, 2) outcome contingent on
facts presented at a hearing, and 3) it’s viewed as application, NOT
setting, of policy; if boards act in legislative capacity, actions upheld as
long as they’re fairly debatable AND actions quasi-judicial are subject to
review by certiorari & upheld if supported by substantial competent
evidence; when board holds hearing, the nature of the hearing determines
if it’s legislative/quasi-judicial,

58
 Legislative - results in formulation of a general rule of policy
Quasi-Judicial - results in application of a general rule of policy
review under strict scrutiny; Growth Management Act requires
comprehensive plan in re-zoning’s, intended to make sure development is
done in an orderly way

Section 28 Partnership, Ltd. v. Martin County (4th DCA 1994) pg 303

FACTS - county denied application to amend comprehensive plan so Section
28 could develop its land, which is inconsistent w/ existing plan adding a
new classification of property; land surrounded by pristine land
ISSUE - was the county’s action legislative or quasi-judicial?
HOLDING - legislative act by the board b/c county was formulating policy &
certiorari unavailable; new classification of property is a formulation of a
general rule of a policy; legislative actions reviewable by “fairly
debatable” standard; not quasi-judicial b/c no provisions under existing
plan for creation of new classification

Board of County Com’rs. of Sarasota County v. Kard (2d DCA 1995) pg 305
FACTS - a “corridor plan” created under a comprehensive plan; Kard’s
property was zoned “residential” but corridor plan designated it as use for
“office” and Kard requested it be designated “commercial” and county
denied request
ISSUE1 - was corridor plan legislative or quasi-judicial?
HOLDING - it was legislative, it formulated general policy, didn’t apply
previously determined policy; corridor plan didn’t downgrade Kard’s
property, but allowed office use which wasn’t previously allowed
ISSUE2 - does a waterline easement requirement, which applies only to Kard’s
property, make the corridor plan quasi-judicial?
HOLDING - still legislative; applying “fairly debatable” test, evidence before
the board indicates an exercise of legislative power; circuit court judge
departed from essential requirements of law

Martin County v. Yusem (1997) pg 308

FACTS - county adopted by ordinance a comprehensive plan, then replaced it
by adopting another comprehensive plan via Local Government
Comprehensive Planning Act (LGCPA); Yusem requested amendment to
future land use map of his property to a different classification; board

59
 denied amendment request
ISSUE - can re-zoning decisions which have limited impact under Snyder be
quasi-judicial when it requires an amendment of the comprehensive plan
and be subject to strict scrutiny?
HOLDING - NO; amendments to comprehensive plans are legislative and
subject to fairly debatable standard of review; LGCPA (above - facts)
meant to enhance present advantages & encourage appropriate land use;
comprehensive plans affecting large portions of public are legislative,
those affecting limited number of persons & decision contingent upon
evidence presented is quasi-judicial; COURT EXPRESSLY
CONCLUDED amendments to comprehensive plans are legislative and
Snyder analysis doesn’t apply in comprehensive plan amendment cases;
amending comprehensive plans require 2-part procedure, which isn’t just
local, & b/c of review procedure, local governments are engaging in
formulating policy decisions; “fairly debatable” standard applies to
comprehensive plan amendment cases

Grace v. Town of Palm Beach (4th DCA 1995) pg 316

FACTS - town commission granted special exception and changed use of a
well-known estate from residential to private club; quasi-judicial &
subject to review by writ of certiorari w/in 30 days; Grace waited until 30
days up, filed review by declaratory judgment
ISSUE - was review by certiorari the proper remedy?
HOLDING - YES; Grace didn’t argue validity of ordinance, but argued that
town wasn’t requiring compliance w/ other ordinance provisions and
county wasn’t enforcing those ordinances; aggrieved parties by local
government decisions which are quasi-judicial cannot disregard Snyder
analysis and seek declaratory judgment

60
Pages 318-374

COURTS - Chapter 4 (cont.)

C. Other Limitations on the Exercise of Judicial Power
1. Case or Controversy & Separation of Powers

FL requires there be a case or controversy to exercise judicial power

Parties must not be requesting an advisory opinion, except where

authorized by the Constitution

a. Generally

Ervin v. City of North Miami Beach (1953) pg 319

FACTS - City ordinance allowed city to regulate speed of vehicles on city
streets; city filed “declaratory decree” regarding enforcement of
ordinance on state & federal highways passing within city limits; AG
rendered opinion but still confusion; AG appealed
ISSUE - was this really an action for an advisory opinion construing a statute?
HOLDING - YES; FL Constitution only allows governor the right to request an
advisory opinion from court, & right is limited to questions arising about
his powers and duties under the constitution; a justiciable case or
controversy must exist between parties to satisfy the case/controversy
requirement; courts cannot give free legal opinions or advisory opinions;
S. Ct. dismissed “Ex Mero Muto”—on its own, without a motion to
dismiss

b. Mootness

Florida has generally adopted this federal doctrine

Southeastern Utilities Service Co. v. Redding (1961) pg 321

FACTS - employer voluntarily paid workers’ comp., wanted to take the
employee’s deposition, even though the employee had not yet filed a claim
for benefits
ISSUE - can employer take depo of injured employee before employee has

61
 filed a claim?
HOLDING - MOOT b/c employee filed claim after order of commission that
depo can’t be taken before filing a formal claim, voluntarily subjecting
himself to provisions of workers comp. statute and civil procedure rule

Montgomery v. H.R.S. (1st DCA 1985) pg 322

FACTS - Montgomery received food stamps, proposed rule required recipients
to work for their stamps; rule to be tested in 2 counties, neither of which
Montgomery’s County or residence; Montgomery filed suit
ISSUE1 - does Montgomery have standing?
HOLDING - YES; 2 part test for standing - 1) injury must be both real &
immediate, not conjectured or hypothetical AND 2) issue litigated over
must be in a “zone of interest” that state wants to protect; here,
Montgomery would be subjected to rule, and injury was real &
immediate; rule appeared to be implemented statewide & Montgomery
would have standing
ISSUE2 - is the case moot?
HOLDING - YES; Montgomery would fall under requirements of rule, but
when he filed his petition, it was still uncertain which counties would
participate in the program; Montgomery’s County of residence didn’t
express interest in writing (as required by rule), which eliminated
immediate concern that Montgomery would be subjected to the rule;
mootness occurs when 1) issues are no longer “live;” OR 2) when the
parties lack a legally cognizable interest in the outcome; DCA can raise
mootness on its own motion
Mootness - defined as “the doctrine of standing set in a time frame:
The requisite personal interest that must exist at the commencement
of the litigation (standing) must continue throughout its existence
(mootness)”
Should have been ripeness rather than mootness; only exception to
mootness - federal class action suit doesn’t become moot b/c controversy
moot as to some of the plaintiff’s, provided requirements of FRCP 23 met

c. Ripeness

Florida has generally adopted this federal doctrine

62
Bryant v. Gray (1954) pg 325
FACTS - Governor died in office; Bryant wanted to run for open slot, but
wanted full term and remaining 2 years from dead Governor’s term;
Bryant filed suit for declaratory judgment if he could have the office for 6
years; Gray and other defendant’s are other candidates
HOLDING - no immediate or present controversy between Bryant and Gray;
Bryant hadn’t run or been nominated to run; controversy must be a
present one, requiring a current decision; hypothetical situations can’t be
ripe; circuit court had no jurisdiction to enter declaratory relief

d. Taxpayer Standing

Florida has generally adopted this federal doctrine

North Broward Hospital District v. Fornes (1985) pg 329

FACTS - N. Broward Hospital to be expanded, financed by taxes; taxpayer
brought suit
ISSUE - does taxpayer have standing to challenge expenditure of public funds
by alleging expenditure will increase her tax burden
HOLDING - NO; taxpayer must allege special injury distinct from other
taxpayers in taxing district - exception to special injury requirement is an
attack on constitutional grounds based upon Legislature’s taxing and
spending power; mere increase in taxes doesn’t confer standing to
challenge expenditures

School Board of Volusia County v. Clayton (1997) pg 333

FACTS - school board wanted to acquire property, filed petition for eminent
domain; after petition filed, school board changed land description;
purchase price double than appraisals; school board approved by bare
majority vote, FSA 235.054 required approval by extraordinary vote
ISSUE - are unique circumstances of a case enough to grant taxpayer standing?
HOLDING - NO; Clayton had no standing b/c didn’t allege constitutional
challenge or special injury, and the “unique circumstances” found in
precedent does not create an exception; remanded

Clayton v. School Board of Volusia County (5th DCA 1997) pg 335

63
Reaffirmed dismissal of complaint, but remand to circuit court to allow Clayton
to allege constitutional challenge; absent a constitutional challenge, this is a
case where there is a “wrong without a remedy”
Motion for Clarification - 5th DCA did not determine that the law was
violated in the purchase of the property; b/c reversed by S. Ct., DCA prior
opinion meaningless

e. Citizen Standing

Florida has generally adopted this federal doctrine

U.S. Steel Corp. v. Save Sand Key, Inc. (1974) pg 338

FACTS - US Steel was building on Sand Key, put fences up that blocked
access to beach; Save Sand joined Attorney General & argued
longstanding customs gave citizens right to use beach; case in conflict w/
another case
ISSUE - Does Save Sand have citizen standing?
HOLDING - special injury must be shown; same injury to general public not
enough; no statutory authority for this action b/c Save Sand asserts
property rights in real estate owned by another & there’s no special injury
from that suffered by public; adheres to special injury requirement

f. Associational Standing

3-prong test to determine - see Hillsborough County v. FL

Restaurant Association (text not in the book)

g. Standing to Challenge Administrative Action

Party adversely affected by final agency action entitled to

judicial review

4 requirements for standing

1) action is final;
2) agency is subject to provisions of the act;
3) person seeking review was a party to the action; AND
4) party was adversely affected by the action

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 2. Political and Other Non-Justiciable Questions

Harden v. Garrett (1985) pg 343

FACTS - Harden questioned legislative election results; certified as great
public importance
ISSUE - did Harden appropriately seek review of his gripe in the courts?
HOLDING - NO; Article 3, §2 - Legislature is the sold judge of its members
elections, qualifications and returns - framers intended courts to defer to
legislative resolution of problems w/in that branch; conflicting policies -
separation of powers, access to courts, fundamental right to have one’s
vote count in a fair election; no inherent judicial power to determine
election contests & right to hold legislative office; “sole power” given in
unequivocal terms; to allow judicial review would create risk of intrusion
on legislature & disrupt legislative internal processes

3. The Avoidance, Where Possible, of the Exercise of Judicial Review

Stembridge v. Harwitz (Fla. App. 1974) pg 346

FACTS - parties both running for mayor; City of N. Miami ordinance requires
personal service of publication of charge/attack on opponent at least 5
days prior to election; Harwitz tried to serve Stembridge, couldn’t find,
slipped under door on day 6 at midnight
ISSUE - was the ordinance unconstitutional?
HOLDING - trial court decided merits before decided constitutionality of
ordinance, i.e. Harwitz didn’t violate ordinance, so trail court didn’t need
to decide if ordinance constitutional

4. Relationship Between Levels of State Courts

DCA’s may follow their own inclinations unless another DCA has
ruled on the issue OR the DCA itself has already ruled and does not
want to overrule its existing law.

If there is a rule on an issue by one DCA that is uncontested, it is

binding law for all of the DCA’s (the whole state). Circuit and
county courts are bound by the uncontested DCA’s law also.

65
Pardo v. State (1992) pg 350
As between DCA’s, a sister DCA’s opinion is merely persuasive

State v. Lopez (5th DCA 1994) pg 352

FACTS - circuit court sat in appellate capacity; county court found guy guilty
of driving w/ suspended license in a parking lot of Calico Jack’s
ISSUE - does a county court have to follow circuit court appellate decision for
that county or can it follow circuit court appellate decisions for other
counties in that circuit?
HOLDING - county judges may use precedent coming from all circuit courts,
even if those circuit courts use precedent from other counties in that
circuit; circuit court sitting as appellate is required to consider all
decisions of that circuit when searching for precedent, and in the absence
of a rule of procedure, to resolve conflicts among decisions

Mikolsky v. Unemployment Appeals Commission (5th DCA 1998) pg 354

FACTS - lady disqualified from receiving unemployment compensation
benefits; FSA 443.101(1)(a) provides when unemployment compensation
should be denied
ISSUE - was 443.101 properly interpreted by the agency (UAC)?
HOLDING - NO; UAC must individually consider unemployment
compensation claims based on termination of employment for each job,
regardless if full-time, part-time, temporary
CONCURRENCE - agencies must follow interpretations of statutes as
interpreted by courts; agency must follow interpretation of DCA decision
outside the district of the trial court; agencies aren’t free to interpret
statutes as they choose

5. En Banc Rehearings by the DCA

En Banc - hearing of a case by every judge in a DCA instead of 3-

judge panels

Chase Federal Savings & Loan Association v. Schreiber (1985) pg 357

FACTS - guy tricked old lady into deeding her property to him,
consideration was his love and affection; old lady wanted deed

66
 invalidated, but man already conveyed titled to BFP; DCA issued PCA,
old lady wanted rehearing en banc
ISSUE - what’s the proper scope of review for DCA’s of appealing granting
rehearings en banc?
HOLDING - DCA’s free to develop their own concepts of decisional
uniformity; DCA’s can create own definitions about what a decisional
conflict is; en banc granted where decisional conflict w/in that DCA;
Article 5, §4 language “three judges shall consider each case” doesn’t
restrict DCA’s from hearing cases en banc; en banc process designed to
avoid conflict, assure harmonious decisions w/in geographic boundaries,
& develop predictability of law in jurisdiction

6. The Effect of Lower Federal Court Decisions

The US S. Ct. is binding on Florida courts

The decision of ANY other federal court does NOT conclusively bind the
courts of Florida

Brown v. State (3d DCA 1997) pg 362

FACTS - Brown convicted of possession of a firearm by a convicted felon
ISSUE - did the court err in admitting into evidence prior convictions when US
S. Ct. case on point?
HOLDING - NO; the US S. Ct. was construing federal statute and FRE, it’s
conclusions not binding on FL courts construing state statutes and rules,
especially b/c there’s a FL S. Ct. case on point; DCA certified to FL S.
Ct.

7. A Judge’s Duty to Follow the Law

Department of H.R.S. v. L.M.D. (5th DCA 1996) pg 363

15 year old married girl court ordered into ER shelter under HRS supervision;
judge questioned HRS attorney that married minor’s cannot be ordered into
shelter and if they are an appeal will be filed; DCA reversed b/c judges can’t

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abuse appellate process by requiring an appeal to delay a case

Garcia v. Manning ( 3d DCA 1998) pg 364

guy found guilty of civil contempt for not paying child support arrears and was
in custody for 90 days; this was improper b/c guy couldn’t pay purge amount
b/c in custody and not making money; judges have ethical duty to know the law
and follow it

CHAPTER 5 - LOCAL GOVERNMENT

A. Generally

Local governments consist of charter and non-charter counties, municipal

corporations, and school and other districts

Article 8, §1(a) - only one in Constitution described as a political

subdivision of FL is the county
BUT, other local government units described elsewhere as political
subdivisions of FL

City of Miami v. Lewis (3d DCA 1958) pg 367

FACTS - Civil court required City to post bond on appeal to 3d DCA; FSA
59.14 waives bond requirement for political subdivisions of a state;
ISSUE—Is the City a political subdivision under FSA 59.14?
HOLDING - YES; 59.14 revised to include state or its political subdivisions;
legislature intended to broaden coverage of statute

B. Counties
1. Generally

Article 8, §1(a) - political subdivisions - “state shall be divided by

law into political subdivisions called counties. Counties may be
created, abolished or changed by law, with provision for payment or
apportionment of the public debt.”

2 types of counties
1) Non-charter - “Counties not operating under county
charters shall have such power of self-government as is

68
 provided by general or special law. The board of county
commissioners of a county not operating under a charter may
enact, in a manner prescribed by general law, county
ordinances not inconsistent with general or special law, but an
ordinance in conflict with a municipal ordinance shall not be
effective within the municipality to the extent of such
conflict.”

2) Charter - “Counties operating under county charters shall

have all powers of local self-government not inconsistent with
general law, or with special law approved by vote of the
electors. The governing body of a county operating under a
charter may enact county ordinances not inconsistent with
general law. The chart shall provide which shall prevail in the
event of conflict between county and municipal ordinances.”

2. Non-Charter Counties

Source of power originates from legislative authorization

Legislature is pretty free to control these political subdivisions

Current statutes give non-charter counties broad power to regulate

themselves

Municipal ordinances control over conflicting county ordinances

Speer v. Olson (1978) pg 370

FACTS - County commissioners created a taxation unit for water and sewer
systems; residents of unit approved a $41.5 million general obligation
bond by unit
ISSUE - was the bond valid when the county was a non-charter county?
HOLDING - YES; Chapter 125 gives counties power to provide & regulate
waste, sewage & H2O & to establish taxation and bonds to support those
services; Chapter 125 legislative intent - to enlarge counties power to
govern themselves by operation of “home rule;” home rule is unless
legislature has preempted an action or particular bond, then the county

69
 has power to govern self through action or bond; county was acting on
delegated authority and there was no legislative preemption

Misty’s Café, Inc. v. Leon County (1st DCA 1994) pg 373

Misty’s enjoined from operating a bottomless restaurant in Leon County;
county ordinance said showing bottom in alcohol serving establishment illegal;
there was a municipal ordinance said no showing of breasts in alcohol serving
establishment; the county and municipal ordinances coexisted & not mutually
exclusive & didn’t conflict but supplemented each other

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Pages 375-422

Chapter 5 Local Government - continued...

B. Counties
3. Charter Counties
A. In General
1. Charter counties possess more autonomy than non-charters.
A. Source of power is the county charter, authorized by the FL
Constitution.

2. Article VIII, Section 1:

A. Non-charter counties possess only that power of self-
government consistent with general or special law.
1. Legislature can only impact powers of self-government
for charters through a general law, or a special law
which is approved by a vote of the electors in the affected county.
B. Non-charters may only enact ordinances consistent with
both general and special law, while charters may enact all
ordinances consistent with general law.
1. Legislature may not affect ordinance-making authority
of charter by special law.
C. If conflict exists between a non-charter ordinance and an
ordinance of a municipality within the non-charter, the
municipal supercedes the county within the municipality. However, in a
charter county the charter itself may provide that county will prevail.

Hollywood, Inc. v. Broward County (4th DCA 1983) - page 375.

FACTS: County ordinance requires developer, for plat approval, to dedicate
land or pay to expand a county level park system sufficient to accommodate
new residents in the plat development. The developer chose the payment
option. He asserts: 1) the county lacks the authority under its charter to enact
such an ordinance; 2) no FL court has agreed with imposing land or fee
requirements to expand county parks; 3) ordinance violates fundamental rights
including due process & equal protection, and that it’s a taking without
compensation.

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ISSUE: Whether the county has the authority to adopt this type of ordinance.
HOLD: Yes, affirm validity of the ordinance.
ANALYSIS: FL charter counties derive their power from the state
through Art. VIII, Sec. 1(g), which vests broad home rule powers in
charter counties. In the absence of preemptive federal or state statutory
or constitutional law, the paramount law of a charter county is its charter.
Appellant cites a provision (page 377) to infer a charter violation. The
court disagrees. The charter provides Broward with all powers a FL charter
county can have, subject only to contrary provisions within the charter.
The other issues in the Summary on page 377 are not really discussed in the
case.

McLeod v. Orange County (Fla. 1994) - page 378.

FACTS: Charter county ordinance, pursuant to FSA 166.231 and the county
charter, levied public service tax on purchase of electricity, metered or bottled
gas, water service, fuel, oil, and telecommunications service within
unincorporated areas of the county. Further ordinances authorized issuance of
county Public Service Tax Revenue Bonds. The Circuit Court validated the
bonds and the three ordinances. McLeod, a resident of unincorporated Orange
County, challenges the PST and asserts that absent a general law empowering it
to do so, Orange County as a charter county can’t enact the PST pursuant to
166.231.
ISSUE: Whether, as a charter county, Orange could enact the PST pursuant to
166.231.
HOLD: Yes, Orange could enact the PST.
ANALYSIS: Article VII, Section 9 and Article VIII, Section 1(g) give a
charter county the right to impose a PST if the imposition is not
inconsistent with general or special laws. Together, the Articles give
charter counties authority to levy any tax that a municipality may impose,
if it is within the county’s taxing jurisdiction.
Appellant also asserts that the county should have enacted the first
ordinance pursuant to FSA 166.041 instead of 125.66(1). Court disagrees.
166.041 is procedures a municipality must follow to enact an ordinance;
125.66(1) is procedures for a county.

B. Duty to Fellow Charters

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Miami Heat Ltd. Partnership v. Leahy (3d DCA 1996)
FACTS: Trial court order denied an injunction. Was there an abuse of
discretion? Appellant argues that the Dade County Code requires single
subject matter for initiatives. Intervenor responds that the Home Rule Charter
provides the sole procedure, and that it doesn’t require single subject matter, so
the Code requirement is invalid.
ISSUE: Whether the Home Rule Charter or the County Code provides the
initiative procedure rules.
HOLD: Home Rule Charter rules.
ANALYSIS: First of all, the Heat suck. Meanwhile, Art. VIII, Section 6(e)
states that the Home Rule Charter shall provide a method for initiative
and referendum. Section 7.01 of the Charter lays out this procedure for Dade
County.
Any legislative act regulating the process should be allowed only when
necessary to ensure ballot integrity. Here, the provision in the charter is
self-executing. The Code section is not “necessary to ensure ballot integrity.”
Compliance with the ordinance would unlawfully amend the Charter procedure
for initiating referenda. To impose a single subject requirement, they needed to
amend the Charter itself.

C. Municipal Corporations - page 381.

1. Article VIII, Section 2(a), (b), & (c):
(a) Establishment - municipalities may be established or abolished
and their charters amended pursuant to general or special law.
(b) Powers - municipalities shall have governmental, corporate, and
proprietary powers to enable them to conduct government, perform
functions, and render services, and may exercise any power for
municipal purposes except as otherwise provided by law. Each
municipal legislative body shall be elective.
(c) Annexation - Municipal annexation of unincorporated territory,
merger of municipalities, and exercise of extra-territorial
powers by municipalities shall be provided by general or special law.

2. In General
State ex rel. Lee v. City of Cape Coral (Fla. 1973)
FACTS: This case was PCA’d. Prepare for a professorial dissertation against
the use of PCA.

73
 A corporation developed subdivisions in unincorporated Lee County known
as Cape Coral. The Legislature passed a Special Act tentatively establishing
the City of Cape Coral, dependent on referendum of the people residing within
the proposed city limits. It passed. The boundaries set by the Special Act
encompassed an additional 70 sq. mi. from the development. People in these
outlying areas petitioned Circuit Court for writ of quo warranto against city,
contesting city’s right to jurisdiction over them. Trial court declared the Act
constitutional, but ousted some of the lands in question as an unlawful taking.
ISSUE(S): Whether the Special Act establishing Cape Coral constitutional, and
whether allowing some of the land to remain in corporate limits would be an
unconstitutional taking.
HOLD: The Act was Consitutional (opinion concurs); the lands were
unconstitutionally taken (opinion dissents).
ANALYSIS: Article VIII, Section 2(a) grants the Legislature the power to
establish and abolish municipalities by either special or general law. This
authority must be exercised within the framework of other provisions in
the Constitution having to do with due process and equal protection.
Short of invading private property rights, Legislature has plenary power to
fix municipal boundaries and establish municipal jurisdiction over any part of
the State. It is for the Legislature to determine when and to what extent a
particular are shall be incorporated. Art. VIII, Section 8. Case law (pp.
383-4) states that Legislature is empowered to fix boundaries and
accommodate both the present needs and future growth of municipalities.

3. Municipal Home Rule Power

Opinion of the Attorney General (7/17/73) - p.385.

Rent-control case. The history of Municipal Home Rule Power in Florida.
1) In the Home Rule Powers Act of 1973, the Legislature defined
“municipal purposes” under Art. VIII, Sec. 2(b) to mean and extend to
“any activity or power which may be exercised by the state or its political
subdivisions,” and implicitly defined the phrase “except as otherwise
provided by law,” to mean “except when expressly prohibited by law.”
FSA 166.021(1)&(2).
2) Except for those acts expressly prohibited by FSA 166.021 or by the
Constitution as construed by the legislature in the enactment of Chapter
73-129, the municipalities have the same legislative powers for municipal

74
purposes, as defined by FSA 166.021, as are possessed by the state
legislature. Conversely, they are subject to the same constitutional limitations
on exercise of the police power in the area of rent control as is the state
legislature.
3) For the case in question, since rent control is a matter which can be acted
upon by the state, under the Municipal Home Rule Powers Act, a municipality
would have the power to enact a rent control ordinance - unless that subject
should be expressly preempted to the state or county government by
constitution or by general law, preempted to a county pursuant to county
charter adopted under Art. VIII, Sec. 1(g), 3, and 6(e), or expressly forbidden
by the Constitution, general law or county charter. FSA 166.021(1)(3)(4).

City of Venice v. Valente (2d DCA 1983) - p. 390.

FACTS, ISSUE, & HOLDING: City ordinance provided for abatement of any
building found to be a public nuisance. The dispute is the provision allowing
the city to recover attorneys fees and costs upon resorting to court proceedings
t secure compliance or when opposing an owner’s appeal of the notice of
abatement. Trial court held provision unconstitutional. DCA reverses.
ANALYSIS: A threshold determination in examining the ordinance is
whether the ordinance is for a valid “municipal purpose.” FSA 166.021(2)
defines “municipal purpose” as “any activity or power which may be exercised
by the state or its political subdivisions.” Power to award legal fees is evident
in several state statutes (p. 391).
Although ordinance is within “municipal purpose,” three further
limitations upon constitutional home rule powers of a municipality must
be examined:
1) Municipality may not enact legislation concerning any subject
expressly prohibited by the constitution. 166.021(3)(b). No prohibition in
this case - in fact, Art. VIII, Sec. 2(b) authorizes.
2) Municipality may not enact legislation concerning any subject
expressly preempted to state or county government by the constitution or
by general law. 166.021(3)(c). Nothing in this case.
3) Municipality may not exercise any power for municipal purposes
which is expressly prohibited by law. 166.021(1). In this case, appellant
relies on another statute to indicate legislative preemptive intent. The Court
not only disagrees with his interpretation, but says that either way it must be
expressly preempted.

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City of Ocala v. Nye (Fla. 1992) - p. 392.
FACTS: City sought to condemn property in order to widen a street. In
eminent domain petition, they showed requirements only for a partial taking of
the property. The Nyes asserted special damages to their business. City
amended to a total taking to eliminate the damages claim. Trial court ruled for
the City. 5th DCA reversed.
ISSUE: Whether a municipality has the power of eminent domain to acquire an
entire tract of land when only a portion of the land is needed for a municipal
purpose.
HOLD: Yes, quash the decision below.
ANALYSIS: City argues that Art. VIII, Sec. 2(b) and 166.021 allow it to
exercise any power for a municipal purpose except when expressly prohibited
by law. It points to the DOT and counties being permitted to condemn more
property than is necessary where they would save money in doing so, and that
the City may do the same.
Eminent domain is an attribute of the sovereign and is circumscribed
by, rather than conferred by, constitution or statute. This power can only
be exercised by state agencies or counties if delegated by the state. Only
through specific legislative grant may a state agency and the counties acquire
land in its entirety to reduce acquisition costs. Statutes have done this. (pp.
393-4).
The definition of “municipal purpose” allows City to do this without
such an affirmative grant of power. If the state has the power to take
particular land for public purposes, then an municipality may also
exercise that power unless it is “expressly prohibited.” There is no express
prohibition here, and case law includes the purpose of cutting acquisition costs
to expand the financial base for further public projects as constituting a valid
public purpose.

Basic Energy Corporation v. Hamilton County. (1st DCA 1995) - page 395.
FACTS: 3 consolidated appeals of exercising eminent domain in the city of
Jasper. The city clearly intended to bring in a state prison facility - jobs, utility
revenues, etc. Trial court ruled for the city, public purpose being construction
of a jail, prison, or correctional institution.
ISSUE: Whether a city’s authority to construct jails provides a basis for the
exercise of its eminent domain power when the city intends to donate the

76
property condemned to the State of Florida for a state prison facility.
HOLDING: Reversed and remanded.
ANALYSIS: Look to see whether there is a valid municipal purpose and, if
so, whether there is any constitutional or statutory limitation. The court
sees a two-tiered question: Whether action was taken for a municipal
purpose, and then was that action expressly prohibited by the constitution,
general or special law, or county charter.
Here, the donation of land to construct a state prison may incidentally relate
to the health, morals, safety, protection, or welfare of the municipality;
however, this purpose is no more particular to the residents of the city than to
any other inhabitants of the state. No municipal purpose has been asserted
here.

4. Creation & Merger of Municipal Corporations &

Annexation by Municipal Corporations

Sullivan v. Volusia County Canvassing Board (5th DCA 1996) - page 397.
FACTS: P’s contend the election process was defective because of various
alleged notice and ballot irregularities. Affirm validity because legislature,
while this was pending, passed Senate Bill 532 declaring the referendum
establishing the city of Deltona to be valid.
ANALYSIS: The Legislature has the power to create and dissolve
municipalities. Art. VIII, Sec. 2. Also, what the Legislature could have
authorized, it can ratify. After-the-fact validating legislation is perfectly
proper to cure procedural defects. Further, the Special Act incorporating the
city subject to referendum was sufficient to place interested voters on inquiry
notice.

City of Long Beach Resort v. Collins (Fla. 1972) - page 398.

FACTS: House Bill 5288 provided for merging several cities into Panama
City. Petitioner says the real attempt is “consolidation” rather than “merger”,
citing Art. VIII, Sec. 3. His unconstitutionality arguments are on pp. 398-399.
The Intervenor arguments are not really part of this case for class purposes.
ISSUE: The constitutionality of House Bill 5288, particularly in regard to
denial of vote to city residents while granting it to adjoining unincorporated
area residents for consolidating into Panama City.
HOLDING: The Bill is constitutional.

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ANALYSIS: The Legislature “has life and death powers” over
municipalities which are created, modified, and can be abolished by the
Legislature. There is no doubt of the Legislature’s power to annex
territory to an existing municipality. The Legislature may make its acts
effective upon the happening of a contingency, which includes the
approval of the affected citizens or a class of the affected citizens.
Basically, the Legislature could do what it wanted here.
a. Annexation Under the Provisions of General Law

SCA Services of FL v. City of Tallahassee (1st DCA 1982)

FACTS: SCA, after being refused by the Att. Gen., brought action in quo
warranto to invalidate annexation ordinances. Lower court dismissed with
prejudice. Affirmed, but for different reasons.
ANALYSIS: Annexation is a power exclusively of the Legislature.
Annexation by the legislature is accomplished by Special Act. Legislature
has shared this power with municipal corporations through Chapter 171,
in which annexation by a municipality is accomplished by passage of a
municipal ordinance utilizing the procedures in 171.
In addition to a clear and exclusive method by which annexation could be
accomplished, 171 also set forth a method by which judicial review of
annexation may be sought. The procedure requires the complainant:
1) Be a “party affected;”
A. He is a “party affected” because he owns property proposed for
annexation.
2) Allege “that he will suffer material injury by reason of the failure of
the municipal governing body to comply with 171 procedures or to meet the
requirements for annexation as they apply to his property;
A. He did that, too.
3) File his complaint seeking judicial review within 30 days following
passage of the annexation ordinance; and
A. He filed his action more than 30 days after the ordinances
passed.
4) Seek review by certiorari in a circuit court.
A. He sought writ of quo warranto instead of certiorari.
M-A-L-P-R-A-C-T-I-C-E? Did you know you can sing these letters to the
same tune as those in “Mickey Mouse?”

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 b. Annexation by Special Law

North Ridge General Hospital v. City of Oakland Park (Fla. 1979) - page
403.
FACTS: This case came up in Chapter 3. Appellants contend that 75-452
denies equal protection, because it doesn’t provide the referendum or limited
judicial review processes as found in 171. Court disagrees.
ANALYSIS: It isn’t the same as 171 because of who initiates the annexation.
The right to a referendum and judicial review is predicated on whether the
municipality initiates the annexation, under 171, or whether the Legislature
annexes by Special Act (75-452 in this case).
There is a presumption in favor of the validity of a statute which treats
some persons or things differently from others, where the court cannot say on
its judicial knowledge that the Legislature could not have had any reasonable
ground for believing that there were public considerations justifying the
particular classification and distinction made. Further, one who assails the
classification has the burden of showing it was arbitrary and unreasonable.
The Legislature is entitled to annex an area with or without an
affirmative vote of the affected property owners. This is because
legislators represent both those within the annexing municipality as well as
within the area proposed to be annexed. A municipality, on the other
hand, does not represent those in the proposed area, so they need a
referendum.

D. Other Units of Local Government

Dunbar Electric Supply, Inc. v. The School Board of Dade County (3d
DCA 1997) - p. 405.
FACTS: Dunbar appeals orders by the FL Div. of Admin. Hearings and the
Dade County School Board. Appellants claim that the Board violated
120.53(5) relating to resolution of protests from contract bidding process.
They argue that 120.53 applies for purchasing taking place under Ch. 287, and
that the Board is governed by 287, which is addressed to the Executive Branch.
HOLDING & ANALYSIS: The School Board is not part of the Executive
Branch. Thus, they are not governed by Ch. 287, and therefore not falling
under 120.53. School Boards are constitutional entities created by Art. IX,
Sec. 4, not part of the Executive Branch.

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Eldred v. North Broward Hospital District (Fla. 1986) - p. 405.
FACTS: Eldred’s son won damages against the hospital. The District moved
to limit the amount of its liability as a governmental entity under statute. Trial
court denied, DCA reversed.
ISSUE: Whether the provisions of 768.28 waiving sovereign immunity and
limiting liability for governmental entities were intended to apply to special
taxing districts.
HOLDING: Yes, so the District’s motion should be granted.
ANALYSIS: Eldred argued that the definition of “state agencies or
subdivisions” (page 406) excludes special taxing districts for hospitals, that No.
Broward is a private hospital. They rely on the Golden case, which the Court
says no longer applies. (Bottom of 406)
The Constitution identifies special taxing districts as one of four local
governmental entities for levying ad valorem taxes (Art. VII, Sec. 9), for
transfer of powers and functions with counties or municipalities (Art. VIII, Sec.
4), for issuing bonds (Art. VII, Sec. 12), and to establish civil service systems
(Art. III, Sec. 14). Also, numerous court decisions in the state recognize the
governmental status of special taxing districts.
This special taxing district is a constitutionally established local
governmental entity charged with the responsibility to provide for the “public
health...and good” of the citizens within the district. The Legislature clearly
intended the provisions of 768.28 to include special taxing districts within the
phrase “independent establishments of the state.”

E. State-Local Relationships
1. Preemption by State

Hillsborough County v. Florida Restaurant Association (2d DCA 1992) -

page 408.
FACTS: Association sued County after County enacted ordinance requiring a
health warning sign to be conspicuously posted in certain establishments that
serve alcohol. Association contends that County acted ultra vires in enacting
the ordinance given the state’s pervasive regulatory scheme in the preparation,
service, or sale of alcoholic beverages. Trial court agreed with Association.
ISSUES: Whether there has been implied or express preemption by the state,
and whether the ordinance is inconsistent with general law.

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HOLDING: No, therefore the ordinance must stand.
ANALYSIS: Express Preemption - To find a subject matter expressly
preempted to the state, express preemption language must be a specific
statement; express preemption cannot be implied or inferred. The broad
interpretation sought by the Association would make other narrower express
preemption language redundant and useless. Assume the legislature didn’t
enact a pointless provision.
Court agrees with the County that since this is a public health concern, then
the state has not impliedly preempted through its pervasive regulation of the
preparation, service, or sale of alcoholic beverages. Implied Preemption -
Absent an express preemption provision, only if there is a danger of
conflict with the pervasive regulatory scheme of the senior legislative body
will the actions of the junior legislative body be held to be impliedly
preempted. The legislative scheme must be so pervasive that it completely
occupies the field, thereby requiring a finding that an ordinance which
attempts to intrude upon that field is null and void. Here, the legislative
scheme itself reserves spheres of regulation to junior legislative bodies, so there
can’t be any implied preemption.
Inconsistent with General Law (Art. VIII, Sec. 1(g)) - An ordinance is
inconsistent with general law where it is “contradictory in the sense of
legislative provisions which cannot coexist.” Here, the Association just
comes up blank.

Note: Zorc v. City of Vero Beach (4th DCA 1998) - bottom of page 412.
Any conflict between the City Charter and a statute is negated under Art.
VIII, Sec. 2(b), which provides that municipalities may exercise any power
for municipal purposes except as provided by law. Municipal ordinances
are inferior to laws of the state and must not conflict with any controlling
provision of a statute. Municipality can’t forbid what legislature has
expressly licensed, and can’t authorize what legislature has expressly
forbidden.

Abreau v. Cobb (3d DCA 1996) - page 413.

FACTS: Dade County voters sought a recall of a County Commissioner. The
petition wasn’t certified for lack of enough signatures under the Charter. A few
months later, another petition was filed; it didn’t state grounds for recall.
Voters who supported the commissioner filed declaratory judgment to prevent

81
the Clerk of Courts to certify it, since it had been filed within one year of the
previous petition and statute required stating the grounds for it. Granted and
petition decertified.
ANALYSIS: DCA agrees with Appellants that petition complied with Dade
Charter, which did not require stating grounds, even though the statute did.
The Charter supercedes the statute pursuant to Art. VIII, Sec. 6(e). Under
the constitution, the petition is not required to comply with the statute and the
Charter is supreme. Even in absence of conflict, requiring compliance with
the statute would constitute an unlawful amendment of the Charter. The
Legislature is prohibited from amending or repealing the charter of any
municipality in Dade County. Art. VIII, Sec. 6(e).
Recent Att. Gen. Opinion held that “when the Legislature enacts a general
law which is applicable not only to a municipality in Dade County but also to
one or more municipalities outside of Dade County, such provision will prevail
over a conflicting provision in a charter of a Dade County municipality.” The
distinguishing factor here, however, is that we’re not dealing with a Dade
County municipality, but with the County itself.
This case shows an exception to the general rule(s) about conflict between
municipal charter and state statute.

2. Non-Preemption Type Conflict Between State and Local

Government

City of Temple Terrace v. Hillsborough Ass’n., Etc. (2d DCA 1975) - page
415.
FACTS: Appeal from judgment declaring D’s operation of home for the
mentally retarded unamenable to a city sAssociation purchased a five bedroom
house in an area zoned “single family residence” and began operating it as a
home for the mentally retarded.
ISSUES: Whether a state agency (Div. Of Retardation of the Dept. of HRS) is
subject to municipal zoning. The other issues thankfully are left out of the
case.
HOLDING: Reversed and remanded.
ANALYSIS: Having found no clear-cut choice in state decisions but clearly
having a preferred test in mind, the Court looks at four - no, five - different
tests for subjecting a state agency to municipal zoning, from inside and
outside of the state. They are first mentioned on pp. 415-417, and actually

82
applied on pp. 418-421.
1) Superior Sovereign Test - since a municipality is a creature of the state
legislature, it should not be permitted to use its zoning to thwart a state
function. This test is weakened by Art. VIII, Sec. 2(b). Even though
municipalities are created by statute, their powers are derived from the
constitution. Also, recent decisions have supported the concept of municipal
home rule, so the Superior Sovereign Test won’t work. Is this really a test, or
just a rule? Besides, if so much case law supports municipalities, why not rule
in the city’s favor?
2) Governmental-Proprietary Test - governmental use is immune,
proprietary use is not immune. Its applicability in FL now seems limited to
situations where a governmental unit seeks to violate its own zoning ordinance.
Presumably, if a government agency is authorized to perform a function, it
should not make any difference whether this function is governmental or
proprietary in nature for the purpose of complying with local zoning.
3) Power of Eminent Domain Test - Where a political unit is authorized
to condemn, it is automatically immune from local zoning regulations when it
acts in furtherance of its designated public function. Yet, the power to
condemn simply provides a method whereby property can be acquired. Such
power has nothing to do with the use of the property.
4) Statutory Guidance Test - A specific legislative statement on the
subject would control, but in the absence of such a statement we must look to
other criteria to make a decision. Each side argues that the legislature’s
omission of a statute supporting the other side means it supported theirs. Not
very helpful.
5) Balancing of Interests Test - AKA the Balancing of Competing Interests
Test, or Balancing of Public Interests Test. Known in some circles as Jimmy
the Groin, in others simply as “Godfather.” It permits a case-by-case
determination which takes into consideration all of the factors which may
properly influence the result. See the long quote on p. 416 for the long list
of factors that MAY be considered and weighed in different ways. There is
“no precise formula.” When the legislature is silent on the subject, the
governmental unit seeking to use land contrary to applicable zoning
regulations should have the burden of proving that the public interests
favoring the proposed use outweigh those mitigating against a use not
sanctioned by local zoning.

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NOTE: This holding was adopted by the FL Supreme Court in 1976. -
page 422.

84
Pages 422-478

6. Local-Local Relationships
• Article VIII, Section 3 - Consolidation - The govt of a county
and the govt of one or more municipalities located therein may
be consolidated into a single govt which may exercise any and
all powers of the county and the several municipalities. The
consolidation plan may be proposed only by special law,
which shall become effective if approved by vote of the
electors of the county, or of the county and municipalities
effected, as may be provided in the plan. Consolidation debt
except to areas whose residents receive a benefit from the
facility or service for which the indebtedness was incurred.
• Article VIII, Section 4 - Transfer of Powers - By law or by
resolution of governing bodies of each of govt affected, any
function or power of a county, municipality or special district
may be transferred to or contracted to be performed by another
county, municipality or special district, after approval by vote
of the electors of the transferror and approval by vote of the
electors of transferee, or as otherwise provided by law.

• Consolidations:
Albury v. City of Jacksonville Beach (Fla. 1974) - Page 422
Facts - Plaintiffs sought declaration as to their legal status and relationship to
Defendant-City under the new charter adopted in 1967. ’s also wanted to
determine whether they might levy municipal occupational license taxes on
persons engaging in occupations in their jurisdictions, as well as whether they
have a right to receive directly from the state and fed agencies revenues
designated under general law to be distributed to municipalities. District Court
said No. 1st DCA reversed holding that ’s continue to exist as quasi-
municipal corporations; that, as such, they are empowered to exercise all
municipal functions which they were permitted to perform under their original
municipal charters and the general laws of the State immediately prior to the
consolidation and that they are corporate entities having the same rights as duly
constituted municipal corps to share in, receive, and expend revenues allocable
to municipal corps by both the federal and state govts.

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Holding - Whenever any one of the small quasi-municipalities is collecting
occupational license taxes, the Consolidated Govt. can collect only that tax
which would have been payable to old Duval County had consolidation never
occurred.
Analysis - To require business and professional persons in the small quasi-
municipalities to pay three such license taxes (1 to quasi-municipality and 2 to
the Consolidated Govt “1 county and 1 municipal”) while their neighbors
would pay only the latter 2, would be unconstitutionally discriminatory and a
denial of due process of law unless it should be clearly shown that a higher
quality of governmental services was being furnished them than in other parts
of the Consolidated Govt.

Town of Baldwin v. City of Jacksonville (Fla. 1st DCA 1992) - Page 425
Facts - Two properties totaling 57 acres were annexed by petition of the 2
owners from Town of Baldwin into incorporated area. City of Jacksonville
alleged that annexed land is located entirely w/in boundary of corporate limits
of the Consolidated City of Jacksonville. Final order granted summary
judgment for City declaring annexation ordinances passed by the Town of
Baldwin unconstitutional.
Issue - Whether the area in Jacksonville designated as general services district
is part of the incorporated City of Jackonville?
Holding - YES. Because (1) according to the Fl. Constitution there is no
unincorporated land in Duval County, (2) the land annexed is in Duval County,
and (3) no municipality can unilaterally annex incorporated land, the trial court
was correct.
Analysis - Section 9, Article VII - The Legislature shall have power to
establish, alter or abolish, a Municipal Corporation to be known as the City of
Jacksonville, extending territorially throughout the present limits of Duval
County. Therefore, according to the Fl. Constitution, the Consolidated City of
Jacksonville is a municipal corporation extending throughout Duval County,
there is no unincorporated land in Duval County.
• Municipal annexation of unincorporated territory, merger of
municipalities, and exercise of extraterritorial powers by
municipalities shall be as provided by general or special law.
(In this case, general provided that no municipality can annex
land within the boundary of another incorporated

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 municipality).

Opinion of the Attorney General (4/20/71) - Page 427

Question - Does the provision of Art. VII, §3, State Constitution, provide the
only manner of consolidating into a single government of the county one or
more municipalities located therein?
Answer - NO. Nothing in Art. VII, §3 either expressly or impliedly requires
that the proposed plan be adopted by a board of commission created by the
legislature for that purpose.
Summary - Nothing would prevent a group of interested citizens from initiating
a city-county consolidation, as here, where a citizens’ committee was appointed
to prepare the proposed charter, financed by contributions from interested
citizens.

Opinion of the Attorney General (6/1/71) - Page 428

Question - (1) By a special act, can a municipality located w/in Monroe
County, be consolidated into 1 governmental body, which exercises all powers
of the county and several municipalities, contrary to a referendum of the
electors of the municipality w/in said county which negates such consolidation?
Answer - YES. The legislature may provide for consolidation of government
upon approval of a majority of the electors of the county w/out regard to the
wishes of electors in any particular municipality.
Question - (2) What section(s) of the Constitution, 1968 revised, or the
Constitution, 1885 would apply in a proposed consolidation of the municipality
of Key West w/all other municipalities of Monroe County, and the county, into
1 governmental body?
Answer - Article VIII, §§3 and 6(3), 1968, are applicable to Key West-Monroe
County consolidation.

• The Tension Between Article VIII, §4, Transfer of

Powers and the Preemption Power of Charter
Counties:
City of New Smyrna Beach v. Volusia County (Fla. 5th DCA 1988) - Page 429
Facts - 4 municipalities located in Volusia County challenged proposed Charter
Amendment 4 which created Beach Trust Commission for purpose of unifying
beach regulations after extensive studies. Proposed amendment submitted to

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electorate and was approved by majority vote, except New Smyrna where
majority rejected it. City argues conflict b/w two Fl. statutes.
Issue - Is the facial constitutionality of an amendment to the Volusia County
charter which establishes a Beach Trust Commission, and which authorizes the
County Council, with the advice of the Commission, to adopt a Unified Beach
Code “comprehensively regulating public health, safety and welfare on and
pertaining to the Atlantic Ocean beach” within the county?
Holding - YES. There is a logical basis shown by this record for finding that
uniform regulation of the beach is required in the public interest. We finding
nothing in the amendment which attempts to usurp the powers of the
municipalities to provide services to the beaches as they do to other areas w/in
their respective limits.
Analysis - The amendment contemplates distribution of beach access revenues
to the cities for the continued provision of services. Thus, the amendment does
not facially conflict with Article VIII, Section 4.

CHAPTER 6 - TAXATION AND FINANCE:

1. Taxation
1. What is Tax?
• Certain constitutional restrictions apply to the
imposition, administration, and collection of taxes which
are not applicable to other fees and charges imposed by
government.
• To the extent possible, governmental entities will often
attempt to characterize a charge as a fee, rather than as a
tax, to avoid the sometimes onerous constitutional and
statutory requirements regulating the imposition of taxes.
It thus becomes necessary for courts to delineate the
boundaries b/w taxes and other governmental fees.
*Ad Valorem Tax - A tax imposed upon the difference b/w the cost of an asset
to taxpayer and the present fair market value of such asset. (A tax based on %
of value of the property subject to taxation, as opposed to a specific tax, which
is a fixed sum applied to all of a certain class of articles. (Black’s Law
Dictionary)
a. Impact Fees:
Contractors and Builders Association v. City of Dunedin (Fla. 1976) - Page 435

88
Facts - City required fees under ordinance for building permits and fees for
capital improvements to the water and sewage system as a whole. Contractors
contend that this fee for capital improvement constitutes taxes, which a
municipality is forbidden to impose, in the absence of enabling legislation.
There are differential connection charges made. Both sides agree that a
municipality cannot impose a tax other than ad valorem taxes, unless
authorized by general law but City contends money is a fee, not taxes.
Issue - Whether the ordinance in the present case may stand as written?
Holding - NO. If ordinance had so restricted use of the fees which it required
to be collected, there would be little question as to its validity.
Analysis - The same considerations underlie statutes of frauds require that a
revenue producing ordinance explicitly set forth restrictions on revenues it
generates, where such restrictions are essential to its validity.
• Raising expansion capital by setting connection charges,
which do not exceed a pro rata share of reasonably anticipated
costs of expansion, is permissible where expansion is
reasonably required, if use of the money collected is limited to
meeting the costs of expansion.
• However, the cost of new facilities should be borne by new
users to the extent new use requires new facilities, but only to
that extent.
• There is no justification for such casual handling of public
moneys, and thus the ordinance is defective for failure to spell
out necessary restrictions on the use of fees it authorizes to be
collected.
• However, City is still at liberty to adopt an ordinance
restricting the use of moneys already collected.

2. Special Assessments
SPECIAL ASSESSMENT TWO-PRONG TEST:
Lake County v. Water Oak Management Corporation (Fla. 1997) - Page 440
Facts - County imposed special assessments for fire protection and solid waste
disposal services. Corporation argued that these services gave no special
benefit to the assessed properties.
Issue - Do Lake County’s solid waste disposal and fire protection services
funded by special assessment provide a special benefit to the assessed

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properties?
Holding - YES. Lake County’s solid waste disposal and fire protection
services funded by special assessment provide a special benefit to the assessed
properties because there is a logical relationship b/w services provided and
benefit to real property.
Analysis - In reviewing a special assessment, the two prong test must be
addressed:
1. Whether the service at issue provide a special benefit to
assessed property; and
2. Whether the assessment for the services is properly
apportioned?
• In evaluating whether a special benefit is conferred to
property by the services for which the assessment is
imposed, the test if whether there is a logical relationship
b/w services provided and the benefit to real property.

Sokol v. Mimmins Recycling Corporation (Fla. 4th DCA 1999) - Page 446
Facts - 5/11/93, County adopted ordinance which sought to reduce illegal
dumping and littering in County by requiring improved property owners w/in a
designated portion of unincorporated county to use and pay for solid waste
collection service.
Issue - Whether the County was authorized to impose a special assessment for
waste collection affecting only a portion of the unincorporated area w/out first
creating an MSBU (Municipal Service Benefit Units)?
Holding - YES. The plain meaning of §125.01 and application of pertinent
case law shows that County was not required to establish an MSBU before
imposing the special assessment.
Analysis - The powers enumerated in §125.01 are not all inclusive, and a
county’s authority includes that which is “reasonably implied or incidental to
carrying out its enumerated powers,” limited only be general or special law.

A. Constitutional Limitations - Who is Allowed to Tax?

• Article VII, §1(a) - Taxation; appropriations; state
expenses -
(a) No tax shall be levied except in pursuance of law. No state
ad valorem taxes shall be levied upon real estate or tangible

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 personal property. All other forms of taxation shall be
preempted to the state except as provided by general law.
• Article VII, §9(a) - Local Taxes:
(a) Counties, school districts, and municipalities shall, and
special districts may, be authorized by law to levy ad valorem
taxes and may be authorized by general law to levy other
taxes, for their respective purposes, except ad valorem taxes
on intangible personal property and taxes prohibited by this
constitution.
*Florida Constitution provides special rules for the imposition of taxes by
governmental entities.
Miller v. Higgs:
• Subject only to constitutional restrictions and the will of the
people expressed through elections, the legislature’s power
and discretion in regard to taxation are broad, plenary,
unlimited and supreme. (So long as legislature does not
violate constitutional restrictions, courts have no concern).
However, where legislature transcends its power and violates a
limitation placed on the taxing power by the constitution, the
judiciary has the right and duty to declare the tax invalid.

City of Tampa v. Birdsong Motors, Inc. (Fla. 1972) - Page 450

Facts - City levied license tax upon certain businesses for privilege of carrying
on the businesses. Another license tax was based upon gross sales of the
businesses. Auto dealers sought to enjoin enforcement and collection of these
taxes and to enjoin the City from inspecting the books and records relating to
amount due and owing. Taxes stated to be owed come to over and above the
flat license fee paid for privilege of operating an auto dealership.
Issue - Whether the tax imposed by the City is authorized by general law?
Holding - NO. There is no general law that authorizes City to impose this tax.
(It is evident that City, after having imposed traditional valid license tax, is
attempting to increase its revenue by taxing the sales w/in the City).
Analysis - Any tax not authorized by general law must necessarily fail by
virtue of the preemption clause of the Florida Constitution Article VII, Section
1 (1968).
• General Rule - Taxation by a city must be expressly

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 authorized by either the constitution or grant of Legislature,
and any doubts as to the powers sought to be exercised must
be resolved against municipality and in favor of the general
public.
• Statutes authorizing municipality to tax are to be strictly
construed, are not to be extended by implication, and are not
to be enlarged so as to include any matter not specifically
included, even though said matter may be closely analogous to
that included.

Alachua County v. Adams (Fla. 1997) - Page 453

Facts - §1 and §9 (as given above) are relevant to determination of case. In
1994, Legislature enacted 94-487 (special law applicable only to Alachua
County) which amended general law allowing surtax to finance, plan and
construct infrastructure. The amendment allowed board of county
commissioners and municipalities to use local govt infrastructure surtax
revenues for operation and maintenance of parks and recreation programs and
facilities established w/proceeds. Adams (citizen) threatened legal action and
County and City filed declaratory judgment action to determine legality of the
surtax and interlocal agreement.
Issue - Whether the right to tax by special law is constitutional in this case?
Holding - NO. A determination that a special law may allow a county to
redirect the tax proceeds in a manner explicitly contrary to the general law
which authorized the tax in the first place would clearly undercut the purpose
of Article VII, Section 9(a).
Analysis - In the face of unambiguous restrictions imposed by Article VII, §§1
and 9, the Court declared 94-487 unconstitutional.
Dissenting - Felt that the issue was whether our present constitution prohibits
the legislature from expanding or contracting by special law the class of
permitted uses for the proceeds of a discretionary sales surtax set out by
general law.

Gallant v. Stephens (Fla. 1978) - Page 459

Facts - Direct appeal to review order of County Circuit Court upholding
Constitutionality of §125.01(q) and (1)(r), Florida Statutes (1975) which
together authorize counties to create “municipal service taxing units” having

92
power to impose ad valorem taxes w/out voter approval.
Issue - Whether Sections 125.01(1)(q) and (1)(r), (1975), are constitutional?
Holding - YES.
Issue - Whether the Legislature has the power to authorize a county to furnish
municipal-type services funded by ad valorem taxes, solely in its
unincorporated area, without referendum, by creating a special tax unit
comprising that geographical area?
Holding - YES. The Pinellas County Commission’s resolution establishing a
municipal service taxing unit in the unincorporated area of the county without
voter approval is valid
Analysis - It is reasonably clear from the minutes and notes of the Commission,
and from the reports of the Legislature, that the focus of the last sentence of
§9(b) was the delivery of municipal-type services by counties to all county
residents, rather than the more narrow delivery of services solely to residents of
intra-county municipalities.
• Thus, the last sentence of §9(b) provides express authority for
§125.01(1)(q) and (1)(r), sanctioning taxing units as a method
by which counties may tax to provide municipal services, w/in
the 10 mill limit for municipal purposes, w/out voter approval.
• Trial Court found that services proposed in Pinellas County
resolution do constitute municipal services.
• Lastly, §125.01(1)(r) provides that the county may offer these
services solely in its unincorporated area.

State v. City of Daytona Beach (Fla. 1986) - Page 463

Facts - City sought validation of improvement revenue bonds not exceeding
$20 million to finance the acquisition and construction of a marina, streets,
sidewalks, lighting, and other improvements in the downtown area. 1981 City
adopted resolution 81-415 which declared certain property referred to as
“downtown area” to be a slum or blighted area, and established Community
Redevelopment Agency vesting in city commission power to issue bonds. In
1985, city enacted ordinance 85-1 which provided for issuance of
redevelopment improvement bonds (which are subject of this appeal). The
bonds are revenue obligations pursuant to Article VII, Section 11(c) and
referendum not required. City prescribed 3 sources of payment for bonds (1)
operating revenue of marina; (2) utilities service tax; and (3) downtown area

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tax increment revenue, to be derived in part from special taxing districts (which
is source of controversy). State attorney contended that #3 was
unconstitutional as violation of Art. VII, §9(a).
Issue - Whether it is w/in the Legislature’s power to make community
redevelopment one of the “respective purposes” of special taxing districts and
to broaden the purpose of a special taxing district if it determines there is a
need to do so?
Holding - YES. It is w/in the Legislature’s power to make community
redevelopment one of the “respective purposes” of special taxing districts and
to broaden the purpose of a special taxing district if it determines there is a
need to do so
Analysis - Tax increment financing is a method for financing a redevelopment
project and is based on the premise that a portion of the increased ad valorem
taxes generated as a result of the property improvement should be available to
pay for the redevelopment.

3. Constitutional Limitations on How Those Taxing May Tax?

1. Ad Valorem Taxation:
• Rate:
• Article VII, §2 - Taxes; rate - All ad valorem
taxation shall be at a uniform rate w/in each taxing
unit, except taxes on intangible personal property
may be at different rates...(The rule is that the tax
burden must fall equally and impartially on all
taxable property subject to it, so that no higher rate
will be imposed on one parcel of taxable property
than on other similarly situated which are taxed for
the same public purpose.

Hayes v. Walker (Fla. 1907) - Page 466

Facts -  contends he is being illegally deprived of his liberty stating that the
offense he was sentenced for was not committed w/in territory of city and
judgment and commitment was error b/c it deprived him of his liberty. The
territory w/in which offense committed was placed w/in corporate limits and
authority of city of Tampa by two statutes (5857 and 5859) of which both
became effective on 5/17/07. Basically, town of Fort Brooke government was

94
abolished and taken over by city of Tampa under these two statutes.
Issue - Whether Statutes 5857 and 5859 are unconstitutional?
Holding - NO. The constitutional provisions of Section 1 and Section 5, that
require the Legislature to provide for a uniform and equal rate of taxation and
a just valuation of all property, and require that Legislature shall authorize
incorporated cities or towns to assess and impose taxes for municipal
purposes, and for no other purposes, and that all property shall be taxed for
municipal purposes upon the principles established for state taxation, do not
prohibit the Legislature from making proper and reasonable classifications of
property for purposes of municipal taxation, so long as such classifications are
not arbitrary, unreasonable, and unjustly discriminating, and apply similarly
to all under like conditions, and do not deprive persons of property w/out just
compensation or w/out due process of law, or do not deny to any person equal
protection of the laws, or do not violate any other provision of the organic law.
Analysis - The test as to the validity of classifications for purposes of
legislation is good faith, not wisdom.

)2 Assessm
Purpose
Taxation
•

Miami Atlantic Development Corporation v. Blake (Fla. 3d DCA 1975) - Page

471
Facts -  owned luxury residential high rise and decided to change status from
apartment to condo.  then filed declaration of condo in public records. Tax
assessor assessed as condo.  then contested ad valorem tax assessment on
grounds that property was apartment on 1/1/73 and therefore tax assessor
incorrectly assessed building as condo. SJ held in favor of .
Issue - Whether  demonstrated that tax assessor wrongfully assessed property

95
as condo?
Holding - NO.  failed to demonstrate that tax assessor wrongfully assessed
property.
Analysis - One of factors to be considered in arriving at just valuation is “the
highest and best use to which property can be expected to be put in the
immediate future and present use of property.
• Courts have held that assessment must be made on basis of
actual use or any immediate expected use to which property is
designed to be put during expected tax year.

Schultz v. TM Florida-Ohio Realty Partnership Ltd. (Fla. 1991) - Page 472

Facts - Property improved w/large department store-type building occupied by
2 tenants. Property owned by TM and encumbered w/22 yr lease and has 4-5yr
options to renew. TM contested 1986 assessment of property.
Issue - What is the proper method of assessing for ad valorem purposes
income-producing property which is encumbered by a long-term lease which
does not return to the owner rent consistent with the current rental value for
similar property?
Holding - When determining the fair market value of income-producing
property which is encumbered by long-term submarket lease, assessor must
consider but not necessarily use each of the factors set out in Section 193.011.
The ultimate method of valuation employed and the weight, if any, to be given
each factor considered is w/in discretion of assessor. However, the resulting
valuation must represent value of all interests in property - in other words, the
FMV of unencumbered fee.
Analysis - Taxpayer failed to meet its burden to show that challenged valuation
was not arrived at lawfully and is not supported by reasonable hypothesis of
legality.

Havill v. Lake Port Properties (Fla. 5th DCA 1999) - Page 474
Facts - Property Appraiser (Havill) appealed final judgment of matter
contesting 1995 ad valorem tax assessment. Trial court found that appraiser
made no effort other than “considering it” (statutory requirements) to calculate
the value of the property using the income approach. Havill contended that
trial court (1) erroneously placed burden on him to prove validity of assessment
(2) incorrectly placed emphasis on methodology, rather than proof of

96
correctness of value; and (3) failed to treat assessment as presumptively
correct, hence making determination based on evidence insufficient to
overcome that presumption.
Issue - Whether the trial court erred in this matter?
Holding - YES. A property appraiser’s determination of “just value” is an
exercise of administrative discretion w/in the field of his expertise and a strong
presumption of validity attaches to his assessment of property for ad valorem
taxation purposes.
Analysis - If however, appraiser does not consider each of the statutory factors
articulated in Section 193.011, the presumption of validity is lost.
• Taxpayer bears a “heavy” burden in challenging a property tax
assessment.
• Taxpayer must meet its burden to show that challenged
valuation was not arrived at lawfully and is not supported by
any reasonable hypothesis of legality.
• A taxpayer must present proof that excludes every reasonable
hypothesis of a legal assessment, otherwise the county
appraiser’s determination of just value must be upheld.
• The three traditional approaches to value, or any combination
thereof - namely cost, income and market - will support an
assessment.
• If evidence shows appraiser properly considered statutory
factors, a trial court’s finding that another method was
superior (or more credible) is insufficient. Regardless of what
method was “theoretically superior,” the trial court is bound to
uphold the appraiser’s determination if it is supported by any
reasonable hypothesis of legality.

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Pages 479-500

Appleby v. Nolte (4th DCA 1996) - page 479.

FACTS: Appellants contest the assessed value of their homes for ad valorem
tax purposes. They reside in John’s Island as equity members of John’s Island
Club (country club with residential developments). Appellee considered their
membership status when appraising their property, resulting in assessments
40% higher for some members than other members or non-members.
Appellants argue that this is an inappropriate ad valorem tax on intangible
personal property. Trial court disagreed because the ability for membership
added value to the property.
ISSUE: Was this an inappropriate ad valorem tax on certain members?
HOLDING: Yes. Reverse & Remand.
ANALYSIS: Art. VII Sec. 9(a) prohibits counties from levying ad valorem
taxes on intangible personal property. They may levy on real property
and tangible personal property. Tangible personal property consists of
goods, chattels and other articles of value capable of manual possession
and whose chief value is intrinsic to the article itself. 192.001(11)(d). The
Membership Certificates in question fit the statutory definition of intangible
personal property. Also, ownership in one party or another is not a valid
criterion for valuing property.

NOTE - page 481: The Constitutional rights of a taxpayer are infringed if

his property is assessed of a percentage of value substantially higher than
the percentage at which all other property in the county is generally
assessed.

Oyster Pointe Resort Condo Ass’n. v. Volte (Fla. 1998) - page 481.
FACTS: Consolidated appeal of 4th DCA declaring 192.037 valid. 4 condo
developments. Assessment of time-share units resulted in valuation that was
increased more than tenfold over the prior year and over identical adjoining
units whose ownership had not been fragmented. The appraiser based his
action on his interpretation of 192.037(2). Trial court approved the assessment,
and DCA affirmed.
ISSUES: 1) Whether 192.037 is constitutional on due process and equal

98
protection grounds; 2) Whether the property appraiser correctly assessed the
time-share units under the statute by assessing each individual time-share
week; and 3) Whether the appraiser, when assessing time share units under
market-value approach, must net from the sales price all elements of the
purchase price other than its real property component. Also, 4) whether all the
units of one of the developments should be assessed pursuant to the statute.
HOLDING & ANALYSIS: Affirmed.
1) 192.037 has already been held constitutional on both due process and
equal protection grounds.
2) Through interpretation of the statute in reference to other statutes on the
same subject matter, the property appraiser is authorized to assess the time-
share units under the statute by assessing each individual time-share week.
3) The method of valuation utilized is within the administrative discretion
of the appraiser, and the valuation is presumed correct so long as the
determination was arrived at lawfully. The burden is on the taxpayer to
show the appraiser departed from the essential requirements of law and
the appraisal is not supported by any reasonable hypothesis of legality.
4) The proper method for challenging the validity of a tax assessment is
through the circuit court. The Court declines to address this issue raised for
the first time on appeal.

NOTE - page 486: Ad valorem tax system is primarily a county administered

tax. Generally, counties, school districts, municipalities, and special districts
establish millage rates, but the property is valued and tax collected at the
county level, although the State Dept. of Revenue by statute has actual
supervisory responsibilities for the system.

Straughn v. GAC Properties, Inc. (Fla. 1978) - page 486.

FACTS: Discrepancies between counties.
ISSUE: Whether real property in one county may be valued and assessed for
ad valorem purposes by reference to the valuation of real property in another
county. Does a cause of action exist against the Dept. of Revenue to compel
equalization of valuations where allegedly identical properties in different
counties are assessed on the basis of different values?
HOLDING & ANALYSIS: Case law clearly states that inter-county
assessment uniformity is not required by the Constitution, and variations

99
even between adjacent counties are not a basis for lowering tax
assessments which are neither greater than 100% of fair market value nor
unequally or improperly determined in relation to other properties within
the same county. This flows from Art. VIII, Sec. 1(d), that counties each
have their own tax appraiser.
Ability of Legislature to harmonize tax assessments - Must remain
conditioned by the Constitutional directive that a class of county officers
are assigned the primary responsibility to perform assessment functions.
At best the Legislative goal can only be achieved incrementally through
cooperative efforts of the assessors and the Department, and development of
procedures which accommodate the responsibilities of both.

NOTE - page 487: Art. VII, Sec 4(a) - While most property is valued for ad
valorem purposes at fair market value, special valuations (based on current
character or use) exist for agricultural land, non-commercial recreational land,
and land producing high water recharge for aquifers.
Art. VII, Sec. 4(b) - Legislature is authorized to value tangible personal
property held for sale as stock in trade and livestock at a specified percentage
of its value, or to totally exempt such property from taxation.

Straughn v. K & K Land Mgmt., Inc. (Fla. 1976) - page 487.

FACTS: Appeal from 10th Circuit judgment declaring 193.461(4)(c)
unconstitutional. Straughn is Exec. Dir. of Dept. of Revenue. Rhoden is Tax
Assessor for Polk County. He reclassified land owned by appellee for 1973.
Circuit court found the statute unconstitutional as 1) an unlawful delegation of
legislative authority without adequate standards and guidelines and 2)
contravention of the constitutional requirement that assessment be made solely
on the basis of “character or use,” having ruled that the land is for bona fide
agricultural purposes.
HOLDING: Reversed and remanded.
ANALYSIS: Poor dumb circuit court! The statutory phrase “special
circumstances,” indicating what must be shown in order to overcome the
statutory presumption at issue, should be read in connection with 193.461(3)(b)
and its criteria for determination of taxable status. These criteria limit the
discretion of such officials to a degree sufficient to escape constitutional
infirmity.

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 Art. VII, Sec. 4(a) affects classification, not assessment, of purported
agricultural property, and it is permissive, not mandatory. There is no
deprivation of a property right in denying special tax treatment since there is no
“right” to the treatment in the first place.
The test for constitutionality of statutory presumption is twofold:
1) Must be rational connection between the fact proved and the
ultimate fact presumed.
2) Must be a right to rebut in a fair manner.
The statute here meets both tests.

4. Constitutional Limitations - Exemptions and Who Cannot be

Taxed or Taxed Beyond a Certain Point. - page 490.
A. Ad Valorem Tax Exemption
1. Art. VII, Sec. 3(a) - All property owned by a municipality
and used exclusively by it for municipal or public purposes
shall be exempt from taxation.
2. Art. VII: 3(b) - There shall be exempt from taxation,
cumulatively, to every head of a family residing in this state,
household goods and personal effects to the value fixed by
general law, not less than $1,000, and to every widow or
person who is blind or totally and permanently disabled, not
less than $500.
3. Art. VII: 3(c) - Any county or municipality may, for the
purpose of its respective tax levy and subject to the provisions
of this subsection and general law, grant community and
economic development ad valorem tax exemptions to new
businesses and expansions of existing businesses, as defined
by general law.l

* The Constitution creates the right to the exemption, and

the Legislature defines the extent of that right by statute.

Canaveral Port Authority v. Dept. of Revenue, (Fla. 1996) - page 491.

FACTS: Court reviews conflicting decisions from 2nd and 5th DCA’s. CPA
challenged Brevard County’s authority to assess ad valorem taxes pursuant to
196.199(4) on the fee interest of real property owned by CPA and leased to

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private entities engaged in non-governmental activities. Trial court found in
accord with 2d DCA that CPA was a political subdivision of the state and thus
immune from ad valorem taxation. The 5th DCA reversed, finding that CPA
was not a political subdivision because it did not act as a branch of general
administration of the policy of the state.
HOLDING & ANALYSIS: The 5th DCA is right. Immunity from ad
valorem taxation must be kept within narrow bounds. Dickinson
precedent -only the state and those entities which are expressly recognized
in the constitution as performing a function of the state comprise “the
state” for purposes of immunity from ad valorem taxation - counties
(VIII:1), entities providing the public system of education (IX:4), and
agencies, departments, or branches of state government that perform the
administration of the state government. CPA is not such an entity and
therefore not immune.
The 2d DCA holding is rejected. Immunity does not flow from a
judicial declaration that an entity is “like a county.” Also, the constitution
does not empower the legislature to designate what entities are immune
from ad valorem taxation.
CPA also relied on 315.11, but this section has never made the exemption
it provides dependent on the use of port authority property. (Page 493)
In view of the express language in 196.001, 196.199(2), and 196.199(4),
the legislature intended to provide only a limited exemption for fee interests in
port authority property.
No rational basis exists for exempting commercial establishment
operating for profit on CPA property while a similar establishment located
near, but not on, CPA property is not exempt. The fee interest is not exempt
because the property is leased to a nongovernmental entity for
nongovernmental use.
DISSENT:
1) The issue is whether there is constitutional authority for constitutional
governmental entities to directly tax other constitutional governmental entities
for property that the entities own, but lease for private purposes. There can be
no doubt that special districts are immune from ad valorem taxation. The
Constitution refutes an assertion otherwise.
2) Only four entities have ad valorem taxing authority (Art. VII, Sec. 9(a)) -
counties, special districts, school districts, and municipalities. It gives no

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indication that special districts should be treated differently than counties and
school districts.
3) Municipalities are different because the constitution grants them an express
exemption from taxation in Art. VII, Sec. 3(a). Since special districts receive
no such separate provision, they must be treated similarly to those entities
(counties and school districts) with which they repeatedly appear in the
constitution. To do otherwise makes them an UGLY DUCKLING.
4) Dissent rejects argument that special districts provide only a limited
governmental function, and that the Dickinson precedent should only apply to
the entities listed in the majority opinion. Special districts have been given
very substantial responsibilities, many of which are expressly granted in the
constitution (provisions given in middle of page 498). Also, this Court has
previously found them to be important governmental entities.

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Pages 500-534

City of Sarasota v. Mikos (Fla. 1979) - page 500.

FACTS: Final judgment of circuit court holding that vacant property owned by
the City was not exempt from county ad valorem taxation under Art. VII, Sec.
3(a). The City owned vacant real property within its boundaries. In 1977,
county appraiser Mikos denied the exemption on the ground that they were
vacant, and, therefore, not in use for a municipal or public purpose.
ISSUE: Whether active use of land is a prerequisite for the exemption?
HOLDING: No. Neither the constitution nor common sense requires there be
an active use of such property.
ANALYSIS: Vacant land held by a municipality is presumed to be in use
for a public purpose if it is not actually in use for a private purpose on tax
assessment day.

Colding v. Herzog (Fla. 1985) - page 503.

FACTS: Review of 2d DCA decision holding that household goods and
personal effects in FL are not subject to ad valorem taxation. Snowbirds were
denied the ad valorem exemption for household goods and personal effects
because their permanent home was not in FL. Trial court approved. DCA
reversed.
ISSUE: Whether household goods and personal effects are subject to ad
valorem taxation under the statutes and constitution of FL?
HOLDING: No, household goods and personal effects are NOT subject to
ad valorem taxation.
ANALYSIS: All property is subject to ad valorem taxation unless it is
constitutionally exempted. This principle does NOT, however, prohibit the
legislature from classifying property or from excluding certain property
from taxation when the expense of assessment and collection would exceed
the revenue generated from the tax. Here, the court finds the legislature has
properly excluded household goods and personal effects without reference to
the residency of the owners.

Walden v. Berkeley Preparatory School, Inc. (2d DCA 1976) - page 505.
FACTS: Appraiser denied educational tax exemption to the school for the
headmaster’s residence. He contends that the residence is not entitled to the

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total exemption because it is not used exclusively for educational purposes.
Berkeley won summary judgment. DCA affirms.
ANALYSIS: Appraiser filed no affidavits to controvert the showing of
“educational need” made by the school. The court let the Univ. of Tampa get
an exemption for the president’s residence, and it finds that this case falls in
line with that.

Underhill v. Edwards (5th DCA 1981) - page 506.

FACTS: A portion of an otherwise exempt hospital building was assessed and
placed on the tax rolls. In 1976, it was granted an exemption. In 1977, it was
denied. The portion was a new wing to the hospital, but it was leased as office
space to private doctors.
ANALYSIS: Only those portions of property which are used
predominantly for charitable purposes are entitled to charitable tax
exemption. Art. VII, Sec. 3(a), Fla. Stat. 196.196(2). A portion of property
must stand on its own use, not the use of an adjacent facility.
The property could not be subject to back assessment, because the
property had not “escaped taxation” for that year. It had not been missed,
overlooked, or forgotten. It was exempted on the judgment of the appraiser,
and can not be reconsidered.

Markham v. Evangelical Covenant Church (Fla. 1987) - page 510.

FACTS: 4th DCA found the “income test” under 196.1975(4) unconstitutional.
The church challenged the decision not to grant a full exemption from property
taxes on a home for the aged owned and operated by it. One of the criteria was
the “income test” that linked the extent of the exemption to a charitably-
operated home for the aged with the income of its residents.
ANALYSIS: The Income Test is too narrow in scope for the true intent of Art.
VII, Sec. 3 limitations on taxation. General laws providing tax exemption
must contain criteria which correspond to the constitutional limitation
that portions of property predominantly used for religious or charitable
purposes may be exempted from taxes. The Income Test is restrictive in that
it is applied to particular individuals rather than to the general objects of a
home provided by a church or charitable organization.

Metro Dade Co. v. Bros. of Good Shepherd (3d DCA 1998) - page 511.

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FACTS: Trial court held that a parcel in Miami used for charitable purposes
for homeless persons, as the assignee of a 99-year lease, was entitled to a
charitable exemption from ad valorem taxation.
ANALYSIS: All property owned by an exempt entity and used exclusively
for exempt purposes shall be totally exempt from ad valorem taxation.
Fla. Stat. 196.192(1). Reversed.

b. Restrictions on Estate, Inheritance, and Income Taxes

Article VII, Section 5 - Estate, Inheritance, and Income Taxes - often
cited as the constitutional prohibition of a state income, inheritance, or estate
tax. That isn’t entirely accurate. See pp. 512-513.

Dept. of Revenue v. Golder (Fla. 1976) - page 513.

FACTS: Executrix paid inheritance tax to PA and NJ, and paid FL estate taxes
all totalling $19,898.63. The total federal credit allowable for death taxes is
$19.692.20. She requested a refund of from FL of the extra $206.43. They
said no, and that further $5,370.03 were due.
ISSUE: Whether the FL Estate Tax Law can result in the levying upon an
estate of a resident decedent of a tax which will make the tax burden upon that
estate greater than it would otherwise be.
HOLDING & ANALYSIS: Under Art. VII, Sec. 5 the legislature is without
power to levy or authorize the levy of an estate tax which has the effect of
increasing the tax burden upon the estate of a resident of FL.

Dept. of Revenue v. Leadership Housing, Inc. (Fla. 1977) - page 515.

FACTS: Direct appeal from circuit court declaring provisions of Chapter 220,
Fla. Stat. unconstitutional.
HOLDING: Reversed. The corporate income tax on capital gain in question is
constitutional and proper.
ANALYSIS: Appreciation in value of a capital asset is not income until it
is realized from a sale, exchange, or other disposition of the asset together
with the accretions thereto, and such realized gain is income in the year of
disposition regardless of when it accrued. Appreciation as it occurs is not
income. Capital appreciation is not true income until it has been separated
from its capital. The separation of capital referred to in the doctrine of
“realization” may occur on the receipt of money, other property, or rights, or

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when some other economic benefit is enjoyed by the asset holder. If you
understand this case, good for you!

C. Homestead Exemption from Ad Valorem Tax - Article VII,

Section 6. - p. 517.

1. Nature of the Exemption

Robbins v. Welbaum (3d DCA 1995) - page 518.

FACTS: Robbins, Dade Co. Appraiser, appeals summary judgment allowing
Welbaums to claim a homestead exemption on their residence held in a
qualified personal residence trust (QPRT). He had denied their application
because they did not hold a life estate in the property. The County Value
Adjustment Board granted the exemption. Trial court then granted summary
judgment.
ANALYSIS: Fla. Stat. 196.031 allows individuals to claim a home exempt
if they hold legal or beneficial title to it and, in good faith, make it their
permanent residence. For homestead exemption purposes only, individuals
holding beneficial title includes residents whose stay on the property is limited
by jointure or settlement.

Horne v. Markham (Fla. 1973) - page 519.

FACTS: Horne received notice to renew his exemption and filed it too late.
The late application was denied. The Court basically completely agrees with
the trial court, which found for Markham. See Analysis.
ANALYSIS:
1. Art. VII, Sec. 6 does not establish an absolute right to the homestead
exemption, but provides that taxpayers shall be granted an exemption only
upon establishment of right thereto in a manner prescribed by law. You
have to assert the right, not just sit on your lazy ass like hapless Horne here.
2. The filing deadline was not in any way arbitrary and unreasonable. It was
necessary to complete the tax roll.
3. The Assessor’s disapproval of the late application was a tentative
administrative decision which didn’t require prior notice or hearing. It still had
to go to the Board after this, at which Horne was clearly afforded a hearing
complying with all the procedural requirements of due process.

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 2. Monetary Value of Exemption

Ostendorf v. Turner (Fla. 1982) - page 522.

FACTS: Fla. Stat. 196.031(3)(e) granted enhanced homestead exemption to
homeowners who resided in the state for 5 years before claiming exemption,
but only the standard exemption to those who had been here less.
ANALYSIS: This difference in exemption is unconstitutional, solely on equal
protection clause (Art. I, Sec. 2) of the constitution. ALL permanent
residents are entitled to the $25,000 homestead exemption provided in Art.
VII, Sec. 6(d). On Motion for Rehearing, also declared 196.031(3)(d)
unconstitutional for the same reasons.

Smith v. Welton (Fla. 1999) - page 531.

FACTS: Appraiser Smith determined he had “mistakenly” under-assessed
improvements to the building that served as Welton’s homestead. Thus,
assessment went from $58K in ‘94 to $130K in ‘95.
ANALYSIS: Art. VII, Sec. 4 amendment purpose was to encourage the
preservation of homestead property in face of increasing real estate
opportunities, rising property values, and assessments, and ensure that citizens
on fixed incomes would not lose their homes on the tax block due to rising
property value. Art. VII, Sec. 4(c) sets limits on the extent to which
homestead assessments may increase.

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Pages 534-586

TAXATION AND FINANCE - Chapter 6 (cont.)

1. Taxation
4. Constitutional Limitations - Exemptions & Who Cannot be Taxed or
Taxed Beyond a Certain Amount

4. Limitation on which property can be taxed to provide

services in unincorporated areas

Article VIII, Section 1(h) - property situated within municipalities

shall not be subject to taxation for services rendered by the county
exclusively for the benefit of the property or residents in
unincorporated areas

Enacted to prevent ad valorem taxes to fund municipal services

not benefitting the taxed property

Alsdorf v. Broward County (1976) pg 534

FACTS - class action by 24 Florida municipality mayors; challenged county
property taxes w/in municipal boundaries
ISSUE - is Article 8, §1(h) is too vague to be self executing?
HOLDING - NO; “exclusively” in A8, S1 previously construed - cannot be
literally read & county taxation of municipal properties barred only when
county services bring to municipal property owners no real or substantial
benefit; mandate against taxation for “exclusive” county activities is
absolute; self-executing nature of provision has 3 bases:
1) language of Constitution is reasonably straight forward &
unambiguous;
2) format of this provision isn’t unique to FL Constitution - identical
“shall nots” or equivalent appear in numerous other provisions as direct
check on governmental or non-governmental acts;
3) trial court found as a fact some of the expenditures are not a real or
substantial benefit to the municipal residents
Provision is self executing & courts required to draw lines between
acceptable & prohibited municipal taxation

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DISSENT - would hold provision is self-executing in rural & semi-rural areas
where municipal limits clearly distinguish between city & rural areas; can’t
separate tax dollars in large metropolitan areas
REMANDED - see next case

Alsdorf v. Broward County (4th DCA 1979) pg 538

Directions on remand - “with or without legislative interpretation the courts
will be required to draw the lines between acceptable and prohibited
municipal taxation” and S. Ct. directed trial court to fashion a remedy to
resolve the controversy, specifically, decided which county services were a
real and substantial benefit to municipal residents; parties stipulated to all
but libraries, ER medical services, and parks & recreation (were they real &
substantial benefit?)
ISSUE 1 - libraries - residents gained real and substantial benefit; benefit to
city doesn’t need to be direct & primary, it just must not be illusory or
inconsequential; mayors didn’t like library system - doesn’t mean it’s not a
real and substantial benefit
ISSUE 2 - sheriff’s road patrol (SRP); stipulated to, but court refused and
found this service was real and substantial benefit; SRP enforced law in
entire county, serves as chief officer of county and circuit courts, vehicles
driven to increase visibility of police presence in municipalities, limited
crime in unincorporated areas adjoining municipalities so a real and
substantial benefit
ISSUE 3 - refunds of alleged improperly collected taxes; only improperly
collected taxes were for ER medical services and neighborhood parks; trial
court denied refund, DCA affirms; must consider if taxing authority acted in
good faith - here the county did

b. Finance
b. Limitations on State and Local Aid to the Private Sector

Article VII, Section 10 - Pledging credit: state, counties, school districts,

municipality, special district or agency cannot become joint owner w/, or
stockholder of, or give, lend or use its taxing power or credit to aid any
corporation, association, partnership, or person; this shall not prohibit
laws authorizing (see list pg 542)

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Nohrr v. Brevard County Educational Facilities Authority (1971) pg 544
FACTS - revenue bonds authorized under FSA 243.18 et seq. a/k/a Higher
Educational Facilities Authorities Law; when enacted, legislative finding of
urgent need among higher education institutions to obtain financing for
expansion and improvement of facilities b/c of public demand; Brevard
County created a County Educational Facilities Authority; FIT requested
funds to build dorm-cafeteria & Authority authorized bonds
ISSUE - did FSA 243.18 et seq. violate Constitution by granting the credit of
state or county to revenue bonds issued?
HOLDING - NO; Constitution framers provided that public revenue bond
financing of airports, ports, and industrial or manufacturing plants alone
didn’t constitute lending or use of public credit - list of projects not
exclusive list; Article 7, §10(c) prohibits against lending public credit
doesn’t apply to projects listed; project not listed determined case-by-case to
test whether lending or use of public credit was contemplated; 243.18 didn’t
contemplated lending or use of public credit; “credit” implies imposition of
new financial liability upon state/political subdivision which results in the
creation of a state/political subdivision debt for the benefit of private
enterprises; to have use of public credit, the public must be directly OR
contingently liable to pay something to someone
2 prong test to determine if revenue bonds for other projects would be
validly authorized by the provision
1) whether the revenue bonds contemplate a pledge of the credit of the
state or political subdivision AND
2) whether the funded project serves a paramount public purpose,
even though there may be an incidental private benefit

State v. Jacksonville Port Authority (1975) pg 547

FACTS - consolidated cases; capital project 1 is a food distribution center
under construction by Publix; capital project 2 is a laundry facility; bonds
validated
ISSUE - whether a specified capital project constitutes an industrial plant w/in
Article 7, §10's meaning?
HOLDING - YES; FSA 159.27(5) implements A7, S10 by defining “project”
as any capital project comprising an industrial or manufacturing plant,

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 including one or more buildings and other structures, whether or not on the
same site or sites; “industrial plant” not defined but legislature intended the
phrase to be liberally construed; precedent upheld bonds issued for beverage
bottle plant and meat processing facility, so should also be for Publix and the
laundry project; laundry project not as strong b/c it doesn’t process or
distribute anything, but it will meet specialized laundry needs of industries
in Jacksonville so O.K.

Orange County Industrial Development Authority v. State (1983) pg 550

FACTS - industrial development revenue bond proceeds were to go to TV
station construction - not a new project, but an expansion of an existing
business
ISSUE - did this project qualify as an industrial or manufacturing plant under
Article 7, §10?
HOLDING - NO; A7, S10 not intended to deny public revenue bond financing
of other types of projects; prong 1 from Nohrr case is met b/c the bonds will
be payable solely from sale, operation or leasing of the project and won’t be
a debt of the state/political subdivision; prong 2 not met b/c of incidental
benefit to private parties; will be validated w/ incidental benefit IF the
incidental benefits “are not so substantial as to tarnish the public character”
of the project; if benefits to private party is paramount purpose of project,
then bonds not validated; benefit here is for private parties b/c benefit is
improved news coverage; broad, general public purpose not sufficient to
sustain a project that is purely a private enterprise

Linscott v. Orange County Industrial Development Authority (1983) pg 552

FACTS - industrial development revenue bonds issued for construction of a
regional headquarters for a multi-state insurance company
ISSUE - when there is no pledge of public credit, is it enough to show that the
project serves a public purpose?
HOLDING - YES; project serves a public purpose and doesn’t involve a pledge
of public credit; “paramount public purpose” test has lost viability - test
applicable when there’s a pledge of public credit, BUT when no pledge of
public credit it’s enough to show only that a public purpose is served -----
THIS IS THE NEW TEST; Chapter 159 - legislature determined that private
economic development serves a public purpose & financing projects like a

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 headquarters facility is in public interest; FSA 159.33 says bonds issued
under this chapter shall not be a pledge of public credit but payed solely
from revenues of the project

Northern Palm Beach County Water Control District v. State (1992) pg 554
FACTS - water control and improvement bond validation denied - was to
finance on-site road improvements of a country club
ISSUE 1 - whether revenue bond proceeds will be used for a valid public
purpose?
HOLDING - YES; here, the project wasn’t in 1 of 4 categories of projects
listed in A7, S10; so, determine if the H2O district’s taxing power or pledge
of credit is involved; taxing power not involved b/c it was a special
assessment; no pledge of credit b/c no direct or indirect commitment by
public body to pay the debt from public funds, & no public property is
placed in jeopardy by default of a 3d party; 2 chapters allow district to issue
bonds, to construct, improve, and pave roadways - clear legislative intent
that on-site controlled access roads serve a valid public purpose; district also
adopted a resolution stating the property where construction was to be is a
public purpose w/in police powers - legislative declarations are presumed
valid; PROBLEM - public access to road limited; SOLUTION - district will
retain ownership of the roads & legislative intent evinces a public purpose
ISSUE 2 - did the H2O district comply w/ the requirements of its enabling
legislation by not meeting Safe Neighborhoods act when issuing the bonds?
HOLDING - doesn’t matter - legislature amended district’s enabling legislation
in 1991 so court doesn’t address
DISSENT - a lot on the facts, “Caribbean Island” motif, security gatehouses,
and financing; purpose of A7, S10 is to prevent government from using vast
resources to monopolize or destroy a part of private enterprise and to protect
public funds & resources from being exploited in promoting private ventures
when public only incidentally benefitted; must confer on public a benefit
normally attendant to any successful business venture; b/c legislature says it
serves a public interest doesn’t make it so

2. Controls on the Pledging of the Credit of the State

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State v. Division of Bond Finance (1971) pg 564
FACTS - bond for construction of toll bridge and causeway replacing existing
smaller bridge and causeway
ISSUE - did the bond proceedings comply with the Constitution?
HOLDING - YES; Constitution amended to include Article 7, §9 - intent of
amendment was to provide alternative way of financing state bonds w/out
referendum; pledged full faith and credit w/out referendum, but for a
specifically exempted purpose

Division of Bond Finance v. Smathers (1976) pg 565

Writ of mandamus issued on Section 1 of Chapter 76-285 requiring language
be expunged from it b/c on its face it violates Article 7, §11(a)

3. Local Bonds

Article VII, Section 12

The same restrictions apply to local bonds and state bonds

County of Volusia v. State (1982) pg 567

FACTS - Volusia wanted to issue bond to finance jail construction; payment
secured by county pledge
ISSUE - was it a promise to levy ad valorem taxes and was a referendum
necessary
HOLDING - YES; pledge of all legally available, unencumbered revenues of
the county other than ad valorem taxation, will have the effect of requiring
increased ad valorem taxation and a referendum is required; county tried to
pledge all legally available revenue & promised to fully maintain programs
& services generating the service fees and user charges - maintaining all
programs producing revenue and devoting the revenues to retirement of the
bonds requires ad valorem taxes be increased

Murphy v. City of Port St. Lucie (1995) pg 571

FACTS - bonds to finance expansion of H2O and sewer utility lines into areas
of city; city enacted an ordinance to levy and collect special assessments
ISSUE - did the city comply with all requirements in issuing these bonds?

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HOLDING - YES; ordinance stated that non-ad-valorem revenues are
considered only as supplemental source of revenue in case pledged revenues
not enough to pay the debt

Wilson v. Palm Beach County Housing Authority (1987) pg 574

FACTS - PBC Housing Authority created by FSA 421.27; wanted bonds to
finance acquisition and construction of low income housing; payable solely
from housing projects’ revenues, earnings, and mortgages on the project
ISSUE - did PBC HA grant of mortgage security interest mandate an election
for bond approval?
HOLDING - NO; PBC HA didn’t have ad valorem taxing power & when
issued bonds there was no direct or indirect pledge of taxing power;
mortgage provisions aren’t a debt

4. Arbitrage Bonds

State v. City of Panama City Beach (1988) pg 575

FACTS - commission adopted resolution for investment revenue bonds; there
was to be an interest rate
ISSUE - are arbitrage bonds used for a proper municipal purpose?
HOLDING - YES; arbitrage bonds - using proceeds of low-interest tax-exempt
bonds to buy federal securities paying higher interest rates & local/state
entities make a profit; constitutional provision against pledging public credit
to private enterprises was to restrict the activities and functions of the state,
county, etc. and forbid them from engaging directly or indirectly in
commercial enterprises for profit; valid b/c broad constitutional powers;
arbitrage bonds qualify as revenue bonds b/c not payable from ad valorem
taxes and don’t pledge the property, credit or general tax revenue of the
municipality

State v. City of Orlando (1991) pg 583

FACTS - Orlando adopted resolution to issue revenue bonds which may be
issued as tax-exempt or taxable obligations - they were going to lend bonds
to other entities throughout Florida and make money on the deal

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ISSUE - are bonds issued for the main purpose to reinvest used for a valid
municipal purpose?
HOLDING - NO; not enough specificity in the bonds and it cannot be
determined if the bonds will be used for a paramount public purpose

116
Pages 587 - 659

Chapter 7 - The Declaration of Rights

A. Introduction

Taylor v. State (Fla. 1992) - page 588.

FACTS: Stirring speech about constitutional rights. Probably followed by one
of those “but that is not present in this case” explanations that sent the guy to
jail anyway so the authors omitted it.
ANALYSIS:
1) Under the federalist system, states may place more restraints on government
intrusion than the federal constitution, but may not place more restraints on the
fundamental rights of citizens. The federal constitution represents the floor
for basic freedoms; the state constitution, the ceiling. When called upon to
decide matters of fundamental rights, FL courts are bound under
federalist principles to give primacy to the state constitution and to give
independent legal import to every phrase and clause contained therein.
Similarly bound by the Declaration of Rights to construe each provision
freely.
2) Under the Declaration of Rights, each basic liberty and each individual
citizen has long been held on equal footing with every other. “It is more
important to preserve them, even though...a guilty man may go free, than it is
to obtain a conviction by ignoring or violating them.”

MI v. Long (U.S. 1983) - page 591.

FACTS: Search and Seizure case.
ANALYSIS: The U.S. Supreme Court will not decide cases where there is
an adequate and independent state ground for the decision. The state
court needs to make this clear by plain statement that any federal
precedents are being used merely for guidance and do not compel the
result the court has reached. When a state court decision fairly appears to
rest primarily on federal law, or to be interwoven with federal law, and when
the adequacy and independence of any possible state law ground is not clear
from the face of the opinion, it will be assumed the court acted under federal
law.

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 B. Basic Rights - Article I, Section 2. - page 594.
1. Introduction
A. The provision stating that all persons are equal before the law has
been identified as the source of the state equal protection clause.
Artificial entities have been extended this protection under substantive
due process.
1. Note the lack of specific prohibition of gender discrimination.

2. “To Acquire, Possess, or Protect Property”

A. Despite the overlap with due process, cases dealing with
constitutional limits on police power affecting private property rights
have cited Art. I, Sec. 2 rather than due process.

Shriners Hospital for Crippled Children v. Zrillic (Fla. 1990) - page 595.
FACTS: Zrillic’s inheritance was intentionally limited because she was a
floozie. Rest & residue of mother’s estate went to Shriners. Fla. Stat. 732.803
voided such charitable devises if not made 6 months before death. We had this
case in Litman’s Wills & Trusts class.
ISSUE: Whether Fla. Stat. 732.803 imposes an unreasonable restriction on
property owner’s right to dispose of property by her will.
HOLDING: Yes, the statute is unconstitutional because it is not reasonably
necessary to accomplish its goals against constitutionally-protected property
interests.
ANALYSIS: Property rights are protected by Art. I, Sec. 2 - “to acquire,
possess and protect property, except that the ownership, inheritance,
disposition and possession of real property by aliens ineligible for
citizenship may be regulated or prohibited by law.”
“Acquire” - to gain, obtain, receive, or come into possession or ownership of
property, including taking by devise.
“Possess” - to have, hold (from this day forward?), own, or control “anything
which may be the subject of property, for one’s own use and enjoyment, either
as owner or as the proprietor of a qualified right in it.
“Protect” - to guard, preserve and keep safe from harm, encroachment, injury,
alteration, damage, or loss.
“Acquire, possess and protect property” - the collection of rights to use
and enjoy property, including the right to transmit it to others.

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 Constitutionally-protected property rights are not absolute. They are
subject to state regulations that are reasonably necessary to secure the
health, safety, good order, and general welfare. However, 732.803 is a
regulation that fails this requirement.

NOTE - p. 600 - Cochran v. Harris (4th DCA 1995) - the FL constitution

requires greater protection from governmental seizure of property than is
required by the federal constitution.

3. “No Person Shall be Deprived of Any Right Because of Race,

Religion, or Physical Handicap”

Schreiner v. McKenzie Tank Lines, Inc. (Fla. 1983) - page 600.

FACTS: Schreiner was a repairman for McKenzie. He suffered epileptic
seizures three times while working. After the third seizure, he was terminated.
ISSUE: Whether Schreiner was unconstitutionally deprived of his employment
due to a physical handicap in violation of Art. I, Sec. 2.
HOLDING: No, because state, not private, action is required to deprive
such rights.
ANALYSIS: The U.S. Supreme Court and the majority of jurisdictions to
decide this issue have concluded that state action is required. Nevertheless, the
decision in this case is based primarily on the intent of the drafters of Art.
I, Sec. 2, which did NOT include an intent to expand the provision to
include protection against private as well as government conduct.

4. “All Natural Persons, Female and Male Alike, are Equal Before
the Law.”

Rollins v. State (Fla. 1978) - page 603.

FACTS: Rollins owned and operated a pool hall. He was arrested under Fla.
Stat. 849.06 for having someone under 21 in his hall. Motion to dismiss was
denied. He was found guilty and fined.
ISSUE: Whether 849.06 is unconstitutional on its face as a denial of Rollins’s
right to equal protection under the law.
HOLDING: Yes, the statute deprives him of equal protection.
ANALYSIS: The Court looks to whether the classification made by the

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legislature is reasonable. A classification satisfies the equal protection
clause if it rests on some difference that bears a just and reasonable
relation to the statute in which the classification is proposed. Here, there is
no such reasonable relation. There is no practical difference between billiards
played in a billiard parlor as opposed to a bowling alley. You’ll still have
alcohol, riff-raff, etc., and the legislature’s contention that there is more likely
to be gambling is indeterminate at best. The court will not sustain legislative
classifications based on judicial hypothesis, but must ascertain clearly
enunciated purposes to justify the continued existence of the legislation.

Shriners Hospital for Crippled Children v. Zrillic (Fla. 1990) - page 606.
FACTS: The Floozie case from page 595 again.
ISSUE: Whether Fla. Stat. 732.803 violates the equal protection guarantees of
the constitution.
HOLDING: Yes, because the statute is both overinclusive and underinclusive
in its classifications.
ANALYSIS: All statutory classifications that treat one person or group
differently than others must appear to be based at a minimum on a
rational distinction having a just and reasonable relation to a legitimate
state objective. Equal protection analysis requires that a classification be
neither too narrow nor too broad to achieve the desired end. Here, the
statute is too narrow because it doesn’t affect many charitable gifts made
without deliberation more than six months before death, and there is no reason
to believe that testators need more protection against charities than against
greedy relatives, friends, or acquaintances. The statute is too broad because it
voids many bequests by those who were not unduly influenced or who do not
have immediate family members in need of protection.

McElrath v. Burley (1st DCA 1998) - page 609.

FACTS: Equal protection claim based on Burley’s theory that two plaintiffs
with identical charges may be treated differently based on when they receive
notice of determination.
ANALYSIS: It is not necessary under the EPC to treat all persons in an
identical manner. The rational basis or minimum scrutiny test generally
employed in equal protection analysis requires only that a statute bear
some reasonable relationship to a legitimate state purpose. The violating

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classification must cause different treatments so disparate that the
classification would be wholly arbitrary. Here, the alleged disparate
treatment is rationally related to a permissible government purpose - screening
by FCHR to avoid court docket congestion and having employers burdened
with defending non-meritorious claims.

NOTE - page 610: Courts frequently prohibit arbitrary or capricious

governmental activity with the requirement for a rational/reasonable basis
test. “Arbitrary” - one not supported by facts or logic. “Capricious” - taken
irrationally, without thought or reason.
C. Right to Assemble - Article I, Section 5.
1. Under current interpretations, this right has been pretty well
subsumed under the First Amendment.
D. The Right to Work and the Right to Bargain Collectively - Article I,
Section 6.

Hillsborough Cty. Gov. Emp. Ass’n v. Hillsborough Cty. Aviation Auth.

(Fla. 1988) - p. 612
FACTS: The GEA bargained collectively for and reached an agreement with
the CAA. Pursuant to Fla. Stat. 447.309(3), the CAA requested the county
Civil Service Board (CSB) to amend its rules to comport with the new
provisions of the agreement. CSB refused provisions on holidays, sick leave,
etc., and CAA notified GEA that they would not take effect. The Public
Employees Relations Commission (PERC) determined that CAA had
committed unfair labor practices. CSB & CAA appealed to 2nd DCA, which
reversed. DCA said you can’t violate the duty to bargain in good faith for
simply following statutory and case law.
ANALYSIS: There are two seemingly contradictory constitutional provisions.
Art. I, Sec. 6 guarantees right to collective bargaining, while Art. III, Sec. 14
authorizes legislature to create local civil service boards. Here, the court says
that 447.309(3) unconstitutionally abridges the right to bargain collectively.
Giving local CSB absolute veto power over provisions of collective bargaining
agreements renders these agreements a nullity.
This holding does not apply to conflicts between collective bargaining
agreements and statutes or ordinances. Rather, the court objects to unbridled
discretion of CSB’s to strike down agreements through their rule making and

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amendatory power.
The right to collective bargaining is subject to official abridgment only
upon a showing of a compelling state interest.
The Court agrees that there was no unfair labor practice, so the PERC order
shall be deemed effective only from the date of this decision.
DISSENT: CSB’s are not just creatures of the legislature, but are expressly
authorized under Art. III, Sec. 14, which the majority has rendered a nullity in
collective bargaining agreement situations. Both Art. I, Sec. 6 and Art. III, Sec.
14 were established to protect public employees. They should be construed
together in a manner that benefits public employees and not in a way that
makes one superior to the other.

E. Prohibited Laws - Article I, Section 10 - page 617.

1. Obligation of Contract
A. Three Methodologies to Construe State Constitutions More
Protectively than Federal:
1. Independent Approach - state constitutional provision is
interpreted independently of any comparable federal provision.
A. If this means exceeding federal constitutional minimums,
then the interpretation governs without need to examine federal
issues.
B. If not, then the supremacy clause prevents its application.
2. Lock-Step or Clone Approach - state court merely adopts a
federal interpretation of a particular provision as the appropriate
interpretation of the state’s counterpart.
1. A state only reaches a separate conclusion where:
A. Has not been addressed by the federal courts or
B. Federal answer is ambiguous or unclear.
3. Middle Approach - state is deferential to federal
interpretation of a federal provision when construing similar
state provisions, but it is not bound by it, since local or special
circumstances might suggest different result.

Pomponio v. The Claridge of Pompano Condo, Inc. (Fla. 1980) - page 618.
FACTS: Fla. Stat. 718.041(4) provides for deposit of rents into the registry of
the court during litigation involving obligations under a condo lease. Claridge

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(lessee) sued the developer and the lessors of a 99-year recreational lease. As
required by the statute, the trial court granted Claridge motion to permit
payment of rents into the registry, despite lessor and developer contentions that
this statute is unconstitutional.
ISSUE: Whether 718.041(4) impermissibly impairs the obligation of contracts
in violation of Art. I, Sec. 10.
HOLDING: Yes, it is unconstitutional.
ANALYSIS: Court traces the history of the contracts clause in decisions of the
U.S. Supreme Court. Skip to page 622 if you’re still awake. The Court is not
bound to accept the U.S. Supreme Court when construing a provision of the
state constitution, but boy is it helpful! For this case, in the absence of
contractual consent significant contract rights are unreasonably impaired by the
statute’s operation.
Some contractual impairment is tolerable. To determine how contractual
impairment is tolerable, weigh the degree to which a party’s contract rights are
statutorily impaired against both the source of authority under which the state is
operating and the evil it seeks to remedy. It’s a balancing test to see whether
the nature and extent of the impairment is tolerable in light of the importance of
the state’s objective and whether it unreasonably intrudes into the parties’
bargain more than necessary to achieve that objective.
Balancing between state objectives and method of implementation on
one hand, and the degree of contract impairment on the other.

2. Ex Post Facto Laws - page 626.

Dugger v. Williams (Fla. 1991) - page 626.

FACTS: Williams was sentenced in 1978 to life in prison with a 25-year
mandatory minimum. He filed for executive clemency in 1987 and it was
summarily denied. After exhausting administrative remedies, he appealed to
the 1st DCA. Under Fla. Stat. 944.30 he was entitled to receive mandatory
recommendation for executive clemency. However, in 1986 the statute was
amended to no longer apply to capital felons and from “shall be recommended”
to “may be recommended.” Williams was being held to the new standard, even
though he had been sent to prison 8 years prior to the amendment.
ANALYSIS: In FL, a law or its equivalent violates prohibition against ex
post facto laws if: 1) it is retrospective in effect, and 2) it diminishes a

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substantial substantive right the party would have enjoyed under the law
existing at the time of the alleged offense.
The error occurs not because the person is being denied the advantage
(since there is no absolute right to receive it), but because the person is
denied the same level of access to the advantage that existed at the time the
offense was committed. If the same level of access to the advantage was
not guaranteed to a class of persons including the defendant at the time the
crime was committed, then there’s no violation.
Where procedural matters have a substantive effect, ex post facto violation is
possible, even though generally it doesn’t apply to purely procedural matters.

F. Substantive Due Process - Article I, Section 9 - page 629.

1. In General
A. FL is one example of states still willing to use a substantive due
process analysis on economic regulatory issues.

L. Maxcy, Inc. v. Mayo (Fla. 1931) - page 630.

FACTS: Testing the constitutionality of an act forbidding arsenic spraying of
citrus trees, except when authorized for destroying the Mediterranean fruit fly.
Property owners content that since the statute prohibits such spraying
altogether and not just for improper use, it is unreasonable and arbitrary.
ANALYSIS: Court goes through the uses for arsenic spraying. Arsenic can
lead to fruit of inferior quality, defrauding consumers. The citrus industry is a
great asset to the state. Thus, the legislature has a wide field of police power
within which to pass laws to foster, promote and protect the industry.
Legislative determination that certain practices are evil and should be forbidden
are given great weight.
The doctrine justifying the inclusion of innocent acts can only be
applied as a necessary means to a legitimate end. Such inclusion must be
reasonably required for accomplishing the legislative purpose. It cannot be
relied on to sustain a measure of prohibition so loosely or broadly drawn as to
bring within its scope matters which are not properly subject to police
regulations or prohibitions.
When put to the choice by practical necessities of this case, the
Legislature may exercise its power to suppress an evil by prohibiting
entirely a stated practice out of which that evil largely grows, even though

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by so doing, innocent acts may be forbidden and long-established customs
of people henceforth made unlawful.

NOTE - page 634 - For substantive due process analysis, courts appear to
have attempted to determine:
1) Whether or not the state has a valid purpose for the action which it
contemplates and,
2) If so, whether or not the means selected by the state to achieve the
valid purpose is reasonable.
So why have the arsenic spraying case before the note?

State v. Saiez (Fla. 1986) - page 634.

FACTS: Saiez was charged with violations of Fla. Stat. 817.63, unlawful
possession of embossing machines. He moved to dismiss on basis that
possession of the machines was illegal regardless of whether they were being
used legitimately. Motion granted, affirmed by 3d DCA, and then affirmed by
FL Supreme Court, but for different reasons than DCA.
ANALYSIS: Saiez’s overbreadth and vagueness arguments fail, but the statute
nevertheless violates substantive due process under Art. I, Sec. 9 and the 14th
Amendment. Substantive due process requires that the means selected
shall have a reasonable and substantial relation to the object sought and
shall not be unreasonable, arbitrary, or capricious. Here, the purpose was
proper, but the means chosen doesn’t bear a reasonable relationship to the
proper goal. Embossing machines can be used in businesses and other non-
criminal activities. “Without evidence of criminal behavior, the prohibition of
this conduct lacks any rational relation to the legislative purpose...and
criminalizes activity that is otherwise inherently innocent.”

Lite v. State (Fla. 1993) - page 637.

FACTS: Lite pled guilty to cocaine possession. Fla. Stat. 322.055(1) provided
for revoking driver’s license or privilege for 2 years upon conviction. Trial
court found this provision unconstitutional. DCA reversed. Court affirms
DCA.
ANALYSIS: To comply with due process, statute must bear a reasonable
relationship to a permissible legislative objective. Further, the statute
must not be discriminatory, arbitrary, or oppressive. A privilege can be

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taken away or encumbered as a means of meeting a legitimate state
objective. Here, the court contrasts losing the privilege of a driver’s license to
a forfeiture action where there is a distinct property interest. If having a
driver’s license were a property interest, then maybe the court would have
found this unconstitutional. Driving is just a privilege. Let him walk to work
when he gets out.

Dept. of Insurance v. Dade County Consumer Advocate (Fla. 1986) - page

638.
FACTS: Case concerning whether a statute that prohibits an insurance agent
from reducing the amount of the commission he or she will earn from selling
insurance is valid.
ANALYSIS: Court may overturn an act on due process grounds when it is
clear that it is not in any way designed to promote the people’s health,
safety, or welfare, or that the statute has no reasonable relationship to the
statute’s avowed purpose. No such relationship with the statute in question
here, so it’s unconstitutional.

2. A Higher Level of Scrutiny - page 640.

A. When a fundamental right is not at stake, the standard for
evaluating substantive due process challenges is virtually identical
to the rational basis test for evaluating equal protection challenges.

3. Due Process and Conclusive Presumptions - page 640.

Hall v. Recchi America, Inc. (1st DCA 1996) - page 640.

FACTS: Hall appealed denial of workers comp claim. He was injured on the
job, but tested positive for marijuana. Judge of compensation claims denied
benefits upon conclusive presumption of Fla. Stat. 440.09(3) that an injury in a
drug-free workplace to an employee who tests positive shall be presumed to
have been caused primarily by intoxication. All evidence showed that he was
injured because another employee fell, causing a piece of steel to acquaint itself
with the back of his head. Also, all evidence showed that his symptoms were
the result of the accident.
ANALYSIS: The statute’s conclusive presumption violates the constitutional
right to due process. A presumption is conclusive if a party is not given a

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reasonable opportunity to disprove either the predicate fact or the
ultimate fact presumed. The constitutionality of a conclusive presumption
under due process is measured by determining 1) whether the concern of
the legislature was reasonably aroused by the possibility of an abuse which
it legitimately desired to avoid; 2) whether there was a reasonable basis for
conclusion that the statute would protect against it occurrence; and 3)
whether the expense and other difficulties of individual determinations
justify the inherent imprecision of a conclusive presumption.
Here, the statute fails the third prong of the test. Individualized
determinations are feasible, so fact finding must be required to afford due
process.
Just because this provision is unconstitutional doesn’t mean the entire statute
is unconstitutional. In determining whether parts of a statute are severable
from the remainder of the law, courts must look to the relationship
between the unconstitutional provisions and the overall legislative intent,
and then must evaluate whether the remaining provisions of the statute
continue to accomplish the intent. Here, this means the rest of the statute
survives. Only the conclusive presumption is out.

4. Distinguishing Substance from Procedural Due Process - page 643.

A. Procedural Due Process - guarantees to every citizen the right to
have that course of legal procedure which has been established in our
judicial system for the protection and enforcement of private rights.
NO single, inflexible test for this. Frequently overlap with substantive
due process.

G. Imprisonment for Debt - Article I, Section 11 - page 645.

No person shall be imprisoned for debt, except in cases of fraud.

Faircloth v. Faircloth (Fla. 1976) - page 645.

FACTS: Divorce case. Failure to pay any child support, alimony, or
contribution toward mortgage, attorney fees, basically nothing paid toward
obligations. Trial court held him in contempt and sentenced him to 5 months
and 29 days.
ANALYSIS: We do not imprison for debt. Therefore, a finding that the debtor

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ordered to pay is able to pay and willfully refuses to do so is the touchstone of
the proceeding. It is the essential fact to validate the process. The burden is on
the party in default to prove not only that he is unable to comply with the
court’s present order to pay, but also that his present inability is due not to his
fault or neglect but rather to circumstances beyond his control which
intervened since the final decree ordering him to pay.
The trial judge must make an affirmative finding that either 1)
petitioner presently has the ability to comply with the order and willfully
refuses to do so, or 2) that petitioner previously had the ability to comply,
but divested himself of that ability through his fault or neglect designed to
frustrate the intent and purpose of the order.

H. Search & Seizure - Article I, Section 12 - page 648.

1. Linkage Amendment of 1982, AKA Conformity Clause
Amendment - brought Art. I, Sec. 12 in line with 4th Amendment
decisions of the U.S. Supreme Court.
A. Only forces linkage between federal and state law where there
is controlling precedent by the U.S. Supreme Court.
B. Plurality opinions of the U.S. Supreme Court, and dicta, are
not binding in this regard. (REALLY? See next case.)

State v. Hume (Fla. 1987) - page 649.

FACTS: Undercover agent bought cocaine from Hume. Officer wore a “body
bug”. As he went toward the front door with Hume, other officers entered and
arrested Hume.
ANALYSIS: Article I, Section 12 was amended to make the state S&S
rulings conform to those fo the federal courts construing the 4th
Amendment. The recording of conversations between a defendant and an
undercover agent in a defendant’s home does not violate the 4th amendment
and, accordingly, does not violate the newly adopted Art. I, Sec. 12.
The FL Right to Privacy provision, Art. I, Sec. 23, does not modify the
applicability of Art. I, Sec. 12, since the people adopted Sec. 23 prior to the
present Sec. 12.
DISSENT: Art. I, Sec. 12, unlike the 4th Amendment, provides an express
guarantee “against unreasonable interception of private communications by any
means.” This express right was not modified and must continue to be given

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full force and effect.
Moreover, the right to privacy, particularly in the home, are expressly
protected by Art. I, Sec. 23 and Fla. Stat. 933.18. Because these provisions
have no counterpart in federal law, U.S. Supreme Court decisions are not
controlling.
Finally, the federal cases are not close factually, and US v. White was only a
plurality opinion.

I. Administrative Penalties - Article I, Section 18 - page 654.

Broward County v. La Rosa (4th DCA 1986) - page 654.

FACTS: Appeal from final summary judgment finding Section 16 ½-67 of
Human Rights Ordinance of Broward County unconstitutional. Ordinance
created the “Broward County Human Rights Board. Discrimination claims
could be filed with the board. Complaints were then investigated. The
ordinance provided first for attempts at conciliation between the parties, and if
unsuccessful then for hearing before the panel. If discriminatory practices were
found at this hearing, payment of actual damages could be ordered.
ANALYSIS: “Penalty” involves the idea of punishment and its character is
not changed by the mode in which it is inflicted, whether by civil action or
criminal prosecution. There is a difference between an award for restitution
and an award for humiliation and embarrassment - the latter is unconstitutional
penalty.
Local governments lack the power to create administrative agencies
empowered to award money damages, even in the civil rights are, unless
specifically empowered by the state legislature to do so.
Persons aggrieved by discriminatory practices should seek redress for
damages in a court of law. The ordinance providing for imposition of a penalty
by an administrative agency violates Article I, Section 18. A hearing which
results in an award of unliquidated damages is a judicial proceeding, not
an administrative proceeding. Agencies have no general judicial powers,
even though they have some quasi-judicial powers.

J. Access to Courts - Article I, Section 21 - page 658.

1. Courts shall be open to every person for redress of any injury, and
justice shall be administered without sale, denial, or delay.

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2. This provision is the Access to Courts Clause of the constitution.
3. The Clause is not violated if such restrictions are reasonable.

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Pages 658-729

10. ACCESS TO COURTS

• Article I, Section 21 - Access to Courts - The courts shall be
open to every person for redress of any injury, and justice shall
be administered without sale, denial or delay.

Kluger v. White (Fla. 1973) - Page 659

Facts - Auto accident and insured sued insurer for property damage but policy
did not provide for “basic or full property damage coverage. Her repairs
exceed the fair market value of the vehicle. Insured alleged that insurer did not
explain fully possible results of failing to have basic or full coverage. Statute
provides that action in tort for property damage is abolished and must look to
own insurer unless  is one who (1) chose not to purchase property insurance,
and (2) has suffered damage in excess of $550.  falls into class w/no recourse
against any person or insurer for loss caused by another.  alleges Art. I,
Section 21 right to redress in the courts.
Issue - Whether or not the Legislature is, in fact, empowered to abolish a
common law and statutory right of action w/out providing an adequate
alternative?
Holding - NO. Where a right of access to the courts for redress for a particular
injury has been provided by statutory law predating the adoption of the
Declaration of Rights of the Constitution of Florida, or where such right has
become a part of the common law of the State pursuant to Fla. Stat. §2.01, the
Legislature is w/out power to abolish such a right w/out providing a reasonable
alternative to protect the rights of the people of the State to redress for injuries,
unless the Legislature can show an overpowering public necessity for the
abolishment of such right, and no alternative method of meeting such public
necessity can be shown.
Analysis - Work Comp abolished right to sue employer but provided adequate,
sufficient and even preferable safeguards to an injured employee.

Owens-Corning Fiberglass v. Corcoran (Fla. 3d DCA 1996) - Page 662

Facts - ’s exposed to asbestos. Legislature enacted statute of limitations law
to 12 years.  was passed his time. Legislature later repealed in 1986 and 
sued in 1993.  alleged statute of repose and trial court denied. Judgment for .

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DCA upholds decision by trial court except states that b/c calculations utilized
by trial court do not comport w/Wells v. Tallahassee, this court reverses in part
and remands to recalculate judgment.
Issue - Whether the statute of limitations or statute of repose may time bar this
action?
Holding - NO. Where the Plaintiff had an accrued cause of action but it was
not recognizable, through no fault of his own, b/c the injury had not manifested
itself, access to the court cannot be denied upon the statute of repose or statute
of limitations.
Analysis - General Rule - Although the legislature may restrict access to the
courts, it must first provide a reasonable alternative remedy or commensurate
benefit or it must make a showing of overpowering public necessity justifying
the restriction w/a finding that there is no alternative method of meeting such
public necessity.
• B/c public necessity was never enunciated, demonstrated, or
contemplated for application of the now defunct 95.031 to a case
such as this one, resulting in a long delay in manifestation of
symptoms that will support a medical diagnosis of injury, such
application is constitutionally impermissive.

Don’s Sod Co., Inc. v. Department of Revenue (Fla. 5th DCA 1995) - Page
666
Facts - Don’s sued to contest sales and use tax assessments and also asked to
find §72.011(3) (seek waiver, pay disputed funds into registry or file cash bond
or surety bond) unconstitutional. Don’s made no attempt to satisfy any of these
requirements. Trial court stated it was w/out subject matter jurisdiction and
dismissed complaint w/prejudice. This court reversed and remanded for further
proceedings.
Issue - Whether the court had subject matter jurisdiction to hear this matter?
Holding - YES. At least the circuit court had jurisdiction to rule on the
constitutionality of the statute.
Analysis - No bond requirement or other like financial hurdle can be employed
by the Legislature to prevent a constitutional challenge to those very provisions
that bar access to the court.
• In close question cases, the courts err on the side of upholding the
constitutionality of a statute where possible.

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 • This Court construes §72.011(3) as allowing a taxpayer filing a suit
in the circuit court to challenge a tax assessment, the right to
petition the court to hold a hearing in order to allow taxpayer to
make other security arrangements in lieu of paying full assessed
contested taxes or posting a bond for the full amount.
 This necessarily includes the possibility that court could set a
bond sum less then the full assessed taxes, or none at all, if such
requirements would deny an impoverished taxpayer access to the
court to challenge a tax assessment.
 The Court further acknowledges conflict w/Nu-Life and Mirabal.

Kennedy v. Guarantee Management Services, Inc. (Fla. 3d DCA 1996)

Facts -  had his case dismissed by Circuit Court (sitting in its appellate
capacity) b/c he submitted his Briefs in handwritten form rather than typed. 
seeks writ of mandamus to this court. Writ granted.
Holding - Dismissal deprived petitioner of his right of access to the courts.
Analysis - Any restrictions on such access to the courts must be liberally
construed in favor of the constitutional right. (Thus, appellate division had
jurisdiction and was obligated to hear appeal).

11. PRIVACY
2. In General:
• Article I, Section 23 - Right of Privacy - Every natural person
has the right to be let alone and free from governmental
intrusion into “the person’s” private life except as otherwise
provided herein. This section shall not be construed to limit
the public’s right of access to public records and meetings as
provided by law.

Right of privacy as a fundamental right: (Thus subject to rigorous protection)

Winfield v. Division of Pari-Mutual Wagering (Fla. 1985) - Page 671
Facts - Dept of Business Regulation and Division of Pari-Mutual Wagering
(Respondents) issued subpoenas to various banks to obtain records of to
account holders (Petitioners). Respondents gave no notice of subpoenas to
petitioners and asked bank not to inform them of investigation. Petitioners
stated that subpoenas violated their constitutional right of privacy and due

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process, and that maintenance of records as public records in respondents files
constituted an additional violation of their right to privacy. Circuit court found
respondents had probable cause and acted w/in its authority but granted
Petitioners relief on grounds that their privacy rights would be violated if
subpoenaed records became public records pursuant to Fla. Stat. 119. Court
thus approved interlocutory order restraining respondents from inspecting,
copying, or using records and directing that records be kept under court seal.
DCA reversed in favor of respondents.
Issue - Whether Article I, Section 23 prevent Division of Pari-Mutual
Wagering from subpoenaing a Florida citizen’s bank records without notice?
Holding - NO. The right of privacy does not confer a complete immunity from
governmental regulation and will yield to compelling governmental interests.
Issue - Does the subpoenaing of all of a citizen’s bank records under the facts
of this case constitute an impermissible and unbridled exercise of legislative
power?
Holding - NO. The information sought by the government was essential to its
inquiry.
Analysis - Strict Scrutiny - The right or privacy is a fundamental right which
demands the compelling state interest standard. This test shifts the burden of
proof to state to justify intrusion on privacy. This burden can be met by
demonstrating that challenged regulation serves a compelling state interest and
accomplishes its goal through the use of the least intrusive means.
• However, this standard was not intended to provide an absolute
guarantee against all governmental intrusion into the private life of
an individual.
• Before right of privacy is attached, Courts look to determine
whether the law recognizes an individual’s legitimate expectation of
privacy in financial institution records.
 Florida Constitution was designed to grant more protection for
privacy rights than the U.S. Constitution. Thus, the law in
Florida recognizes an individual’s legitimate expectation of
privacy in financial institution records However, the state’s
interest in conducting effective investigations in the pari-mutual
industry is a compelling interest and that the least intrusive
means was employed to achieve that interest.

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 a. The Existence of a Reasonable Expectation of Privacy
• Before the protections of Article I, Section 23 apply to a
person that person must have a reasonable expectation of
privacy in the circumstances into which government has
intruded.
• Determining whether an individual has a legitimate
expectation of privacy in any given case must be made by
considering all the circumstances, especially objective
manifestations of that expectation.
• Delineating the zone of privacy protected by the constitution
begins w/the subjective expectations of the individual, which
are protected “provided they are not superious or false.”

Department of Health and Rehabilitative Services v. Cox (2d DCA 1993) -

Pg 675
Facts - ’s admitted to being homosexuals and were denied opportunity to
adopt child b/c §63.042(3) prohibits adoptions by homosexuals. Trial court
stated that statute was unconstitutional. This court reverses.
Issue - Whether §63.042(3) is constitutional?
Holding - YES. The statute does not establish a governmental intrusion into a
person’s private life but only bars the statutory privilege to adopt a child when
it is known that the applicant is homosexual.
Analysis - Plaintiffs cannot claim an expectation of privacy concerning a fact
they have willingly disclosed.
• This statute does not compel unwarranted inquiry concerning
private matters.
• Before the right of privacy is attached and the delineated standard
applied, a reasonable expectation of privacy must exist.

Cox v. State Department of Health & Rehabilitative Services (Fla. 1995) -

Pg 677
Facts - Gay male (Cox), along w/his partner, sought to adopt a special needs
child. HRS denied them opportunity to attend parenting classes b/c of §63.042
and informed them that their application could not be considered. Cox sued
arguing violation of equal protection, due process and right to privacy. Trial
court entered summary judgment striking §63.042 on its face. HRS appealed.

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DCA reversed holding that trial court did not have sufficient record to support
a SJ in favor of Plaintiffs on any issue. DCA further stated that HRS was
entitled to SJ on privacy issue and that §63.042 was not constitutionally vague
and that it did not violate due process nor equal protection rights. This Court
agreed except remanded equal protection issue to trial court b/c record
insufficient to make rational basis standard.
Issue - Whether the statute was constitutional?
Holding - YES.
Dissenting - As a general rule, a statute irrational under an equal protection
analysis necessarily violates due process, too. This is b/c a statute irrational
under equal protection has no lawful purpose; and the Courts have noted that
an improper purpose means the statute violates substantive due process.

City of North Miami v. Kurtz (Fla. 1995) - Page 680

Facts - City adopted employment policy designed to reduce # of employees
who smoke tobacco to reduce costs and increase productivity. City required all
job applicants to sign an affidavit stating that they have not used tobacco or
tobacco products for at least 1yr. Intent of regulation was to gradually reduce #
of smokers in City’s workforce by means of natural attrition. Regulation only
applies to new employees. Evidence shows that smoking employee costs the
City as much as $4,611 per year in 1981 dollars over non-smoking employees.
City is self-insurer for medical expenses of employees. Kurtz was smoker
denied employment and filed suit. Trial Court ruled that Kurtz had
fundamental right of privacy under Art. I, Sec. 23, but that there was no
expectation of privacy in employment and that regulation did not violate any
provision of either the Florida or federal constitutions. SJ for City. DCA
reversed holding that City’s interests did not outweigh Kurtz’s right of privacy
and has no relevance to the performance of her duties.
Issue - Whether applicants seeking government employment have a reasonable
expectation of privacy under Article I, Section 23, as to their smoking habits?
Holding - NO. An applicant seeking government employment has no
reasonable expectation of privacy under Article I, Section 23, as to their
smoking habits.
Analysis - In this case, the City’s action does not intrude into an aspect of
Kurtz’ life in which she has a legitimate expectation of privacy.
• Given that individuals must reveal whether they smoke in almost

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 every aspect of life in today’s society, individuals have no
reasonable expectation of privacy in the disclosure of that
information when applying for a government job and, consequently,
that Florida’s right of privacy is not implicated under these unique
circumstances.
• The right of privacy protects Florida’s citizens from the
government’s uninvited observation of or interference in those areas
that fall w/in the ambit of the zone of privacy afforded.
• Determining whether an individual has a legitimate expectation of
privacy in any given case must be made by considering all the
circumstances, especially objective manifestations of that
expectation.

3. Privacy and Public Trials

Barron v. Florida Freedom Newspapers (Fla. 1988) - Page 683
Facts - Trial court sealed a substantial portion of the court filed in a dissolution
proceeding b/w Mr. Barron (a State Senator) and Mrs. Barron.
Issue - Whether the dissolution proceeding should have been portion of court
file?
Holding - NO. Dissolution proceedings must be treated similar to other civil
proceedings, and thus the presumption of openness applies.
Analysis - All trials, civil and criminal, are public events and there is a strong
presumption of public access to these proceedings and their records, subject to
certain narrowly defined exceptions.
While a strong presumption of openness in judicial proceedings exists, the law
has established numerous exceptions to protect competing interests and are put
into 2 categories:
• Exceptions to public access trials:
.3 Those necessary to ensure order and dignity in the courtroom; and
.4 The content of the information.
.a Must be drawn w/particularity and narrowly applied.
• TEST - For Closure of Criminal Proceedings:
.3 Closure necessary to prevent serious and imminent threat to the
administration of justice;
.4 No alternatives available, other than change of venue, which would
protect the defendant’s right to a fair trial; and

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 .5 Closure would be effective in protecting the rights of the accused,
w/out being broader than necessary to accomplish this purpose.
• TEST - For Closure of Civil Proceedings - FACTORS to be
considered:
.3 A strong presumption of openness exists for all court proceedings. A
trial is a public event, and the filed records of court proceedings are
public records available for public examination.
.4 Both the public and news media shall have standing to challenge any
closure order. The burden of proof in these proceedings shall always
be on the party seeking closure.
.5 Closure should occur only when necessary;
.a to comply w/established public policy set forth in constitution,
statutes, rules or case law;
.b to protect trade secrets;
.c to protect a compelling governmental interest (e.g. national security,
confidential informants);
.d to obtain evidence to properly determine legal issues in a case;
.e to avoid substantial injury to innocent third parties (e.g. protect
young witness from offensive testimony, protect children in
divorce); or
.f to avoid substantial injury to a party by disclosure of matters
protected by a common law or privacy right not generally inherent
in the specific type of civil proceeding sought to be closed.
.6 Before entering a closure order, trial court shall determine that no
reasonable alternative is available to accomplish the desired result,
and, if none exists, trial court must use least restrictive closure
necessary to accomplish its purpose.
.7 The presumption of openness continues through appellate review
process, and party seeking closure continues to have burden to justify
closure. This burden is placed on party seeking closure not only b/c of
strong presumption of openness but also b/c those challenging order
will generally have little or no knowledge of specific grounds requiring
closure.

4. Privacy and Abortion

In Re T.W. (Fla. 1989) - Page 688

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Facts - Law in Florida required minors to go through procedure before
acquiring abortion. Minor must obtain parental consent or must convince court
she is sufficiently mature to make decision or that if immature, abortion is still
in her best interests. TW asked for waiver of parental consent and showed that
she was mature and had justified fear of physical or emotional abuse if parents
were requested to consent and mother was ill and informing her would be
added burden. Guardian ad litem appointed for fetus, (in 1st Trimester) hearing
held and guardian argued that statute was unconstitutionally vague and that
parental consent must be therefore required in every instance where minor
seeks abortion. Trial court ruled judicial bypass provision of statute
unconstitutional b/c failed to make sufficient provision for challenges to
validity, was vague and mad no provision for testimony to controvert that of
minor. Court denied petition for waiver and required consent to be obtained
under remaining provisions of statute. DCA found failure to provide for record
hearing, lack of guidelines re: admissible evidence, a brief 48 time limit, and
failure to provide for appointed counsel for indigent minor. DCA declared
entire statute unconstitutional and quashed order requiring parental consent.
Guardian appealed. TW then had abortion which would normally have mooted
issue but b/c questions raised are of great public importance and are likely to
recur, Supreme Court accepted jurisdiction.
Issue - Whether §390.001(4)(a) violates the Florida Constitution?
Holding - YES. §390.001(4)(a) violates the Florida Constitution.
Analysis - To be held constitutional, the instant statute must pass muster under
both the federal and state constitutions.
• Analysis of Florida Constitution (If fails, then no further analysis
required):
• Florida is unusual b/c it has its own express constitutional provision
guaranteeing independent right to privacy.
• The amendment (Section 23) provides “an explicit textual
foundation for those privacy interests inherent in the concept of
liberty which may not otherwise be protected by specific
constitutional provisions.
• Standard of review for evaluating lawfulness of government
intrusion into one’s private life:
• “The right to privacy is a fundamental right which we believe demands
the compelling state interest standard. This test shifts the burden of

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 proof to the state to justify an intrusion on privacy. The burden can be
met by demonstrating that challenged regulation serves a compelling
state interest and accomplishes its goal through the use of the least
intrusive means.
Issue 2 - Whether a woman’s decision of whether or not to continue her
pregnancy is a privacy right implicit in Florida’s Constitution?
Holding 2 - YES. Florida’s privacy provision is clearly implicated in a
woman’s decision of whether or not to continue her pregnancy. (A woman’s
right to make that choice freely is fundamental).
Issue 3 - Whether this freedom of choice concerning abortion extends to
minors?
Holding 3 - YES. Based upon unambiguous language of amendment, the right
of privacy extends to every natural person. Minors are natural persons in eyes
of law and constitution does not mature and come into being magically only
when one attains state-defined age of majority.
Analysis:
• State must then prove statute furthers a compelling state interest
through the least intrusive means for it to be constitutional. (STRICT
SCRUTINY)
• Two state interests (Roe v. Wade):
.3 Health of mother; and
.a Does not become compelling state interest until end of first
trimester b/c until that time, “mortality in abortion may be less
than mortality in normal childbirth.”
)2 Under Florida law, prior to end of 1st trimester, abortion
decision must be left to woman and may not be significantly
restricted by state.
)3 After 1st trimester, state may impose significant restrictions
only in least intrusive manner designed to safeguard health of
the mother.
.4 Potentiality of life in the fetus.
.a Becomes compelling at point in time when fetus becomes viable
(at which time fetus becomes capable of meaningful life outside
the womb, w/out artificial aid). Generally end of 2nd trimester.
.a Following viability, state may protect its interest in
potentiality of life by regulating abortion, provided that mother’s

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 health not jeapardized.
• Statute fails b/c it intrudes upon privacy of pregnant minor from
conception to birth. (Not necessary for the preservation of
maternal health or potentiality of life)
• Even state’s recognized state interest of protection of the immature
minor and preservation of the family unit are sufficiently
compelling under Florida law to override Florida’s privacy
amendment.
• Unlike federal Constitution which allows intrusion based on a
“significant” state interest, Florida Constitution requires “compelling”
state interest in all cases where right to privacy is implicated.

State v. Presidential Women’s Center (Fla. 4th DCA 1998) - Page 696
Facts - Florida Legislature passed law “Women’s Right to Know Act,” in 1997
(Granting women who seek abortions ability to be adequately and fully
informed of potential consequences as well as a list of agencies offering
different alternatives and punishment to physicians who do not comply with
these standards). Clinics filed suit to have law declared unconstitutional under
Federal and State law. Trial court granted temporary injunction finding (1)
likelihood of irreparable injury to clinics if injunction were not granted, (2)
threatened injury to clinics outweighed potential harm caused by granting
injunction, (3) granting temporary injunction would not disserve the public
interest, and (4) there was substantial likelihood that clinics would prevail on
the merits.
Issue - Whether the trial court abused its discretion by granting an injunction?
Holding - NO. Trial Court did not abuse its discretion by granting temporary
injunction.
Analysis:
• Strict Scrutiny - Test shifts the burden of proof to state to justify
intrusion on privacy. Burden can be met by demonstrating that
challenged regulation serves a compelling state interest and
accomplishes its goal through use of least intrusive means. (Test is
almost always fatal in its application). Winfield Case.
• In re T.W. Governmental intrusion or restriction must not be
significantly restricted by the state prior to this time.
• Under Winfield, burden is on state to demonstrate that this intrusion

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 (requiring the doctor give all informed consent rather than
counselors, etc.) or restriction “serves a compelling state interest
and accomplishes its goal through the use of the least intrusive
means.
• As recently as 1996, Florida Supreme Court has reiterated that
regulations which infringe on the right to privacy are subject to
strict scrutiny.
• The restriction, which does not allow a physician to tailor the info to
the woman’s circumstances, infringes on woman’s ability to receive
her physician’s opinion as to what is best for her, considering her
circumstances.
• Test of Vagueness of a Statute - Whether the language conveys
sufficiently definite warning as to the proscribed conduct when
measured by common understanding and practice. The statute must
give reasonable notice that a person’s conduct is restricted by the
statute.
• If statute is vague, it also raises procedural due process issues (where,
if physicians violate statute, their licenses are at stake).
• By changing informed consent from what a reasonable physician
would do under the circumstances, to what a reasonable patient would
want to know, but w/out the traditional informed consent language
“under the circumstances,” arguably leaves physicians w/no standard
to comport to.

E. Privacy and the Refusal of Medical Treatment

In Re Guardianship of Browning (Fla. 1990) - Page 702
Facts - Competent patient in 1985 executes a living will providing for
termination of life-prolonging procedures if terminal or no recovery potential.
In 1986, patient suffered stroke and put into home requiring around the clock
care. Guardian appointed. Several complications arose w/feeding tube and
replaced w/nasogastric tube. 2yrs later, guardian filed petition to remove tube
based upon living will and other evidence. Trial court determined death was
not imminent and denied petition. DCA stated that patient entitled to relief
under state constitution, which expressly recognized every citizen’s basic right
of privacy. DCA then authorized guardian to make decision in accordance
w/procedures established in opinion.

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Issue - Whether the guardian of patient who is incompetent but not in a
permanent vegetative state and who suffers from an incurable, but not terminal
condition, may exercise the patient’s right of self-determination to forego
sustenance provided artificially by a nasogastric tube?
Holding - YES. Without prior judicial approval, a surrogate or proxy, as
provided here, may exercise the constitutional right of privacy for one who has
become incompetent and who, while competent, expressed his or her wishes
orally or in writing.
Analysis - Everyone has a fundamental right to the sole control of his or her
person.
• A competent individual has the constitutional right to choose or
refuse medical treatment, regardless of his or her medical condition.
(Issue involves a patient’s right of self-determination and not what
is thought to be patient’s best interests).
• This right is not lost or diminished by virtue of physical or mental
incapacity or incompetence.
• When a person is unable to personally and directly express his or
her desires for health care b/c of physical or mental incapacity, a
guardian, proxy or surrogate (such as close family members or
friends) may exercise this right for them without prior court
approval.
• When patient has left instructions re life sustaining treatment,
surrogate must make medical choice that patient, if competent, would
have made, and not one that surrogate might make for himself or
herself, or that surrogate might think is in patient’s best interests.
• Strict Scrutiny applied re fundamental right of privacy.
• Challenges may still be made upon the decision of a proxy or
surrogate. Written declarations establishes a rebuttable presumption
and oral evidence (alone) constitutes clear and convincing evidence
but surrogate bears burden if oral evidence is challenged.

Singletary v. Costello (Fla. 4th DCA 1996) - Page 712

Facts - Costello sentenced to life in prison and he fasted to protest actions of
Department of Corrections (DOC). Costello sought declaratory judgment
allowing him to continue his fasting w/out medical intervention. State
contended they had compelling state interest in preserving life, preventing

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suicide, protecting innocent 3d parties, maintaining integrity of medical
profession, preserving internal order and discipline, institutional security and
rehabilitation of prisoners. Trial court granted temporary injunction contending
he had a fundamental right to refuse medical treatment and state failed to
establish a compelling state interest to override. State appealed.
Issue - May a person refuse medically necessary life sustaining hydration and
nutrition?
Holding - YES. A competent person has the constitutional right to choose or
refuse medical treatment and that right extends to all relevant decisions
concerning one’s health.
Analysis -
• Four (4) State Interests to be considered when balancing against
individual’s right to refuse medical treatment:
.3. Preservation of life;
 Considered to be the most significant.
•2. Protection of innocent 3d parties;
•3. Prevention of suicide; and
•4. Maintenance of ethical integrity of the medical profession.
• A prison inmate also has a constitutionally protected fundamental
right to refuse non-consensual medical intervention.
• The only interest in this case that was at issue was preservation of
life. However, preservation of life, in and of itself, will not
foreclose a competent person from declining life-sustaining medical
treatment.
• However, this case does not stand for the proposition that an inmate
has the right to starve himself to death. Simply, under the facts of
this case (b/c inmate had a goal and it was not to die but to protest),
the countervailing state interests did not overcome inmates privacy
right to refuse medical intervention.

6. Privacy and Physician Assisted Suicide

Krischer v. McIver (Fla. 1997) - Page 719
Facts - Mr. Hall suffers from AIDS and was in deteriorating health and
terminally ill. Dr. McIver and Mr. Hall filed suit for declaratory judgment that
§782.08 (prohibits assisted suicide) violated the Privacy Clause of the 14th
Amendment and Due Process and Equal Protection Clause. Dr. McIver

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testified that he would assist Mr. Hall in committing suicide.
Issue - Whether there is a right to assisted suicide under the U.S. Constitution?
Holding - NO.
Issue 2 - Whether there is a right to assisted suicide under Florida’s guarantee
of privacy contained in Florida’s Declaration of Rights?
Holding 2 - NO.
Analysis - Affirmative medical intervention that will end one’s life on his
timetable and not in the natural course of events is significantly different than
refusing medical treatment and allowing one’s life to end on its own timetable.
• In this case, three (3) of the four (4) recognized state interests are so
compelling as to clearly outweigh Mr. Hall’s desire for assistance in
committing suicide:
.6 The state has an unqualified interest in the preservation of life;
.7 The state has a compelling interest in preventing suicide; and
.8 The state has a compelling interest in maintaining the integrity of the
medical profession.
• However, the Court does not hold that a carefully crafted statute
authorizing suicide would be unconstitutional.
Dissenting - The majority tries to fix the mark between improper “suicide” and
“right of self-determination” through scrutinizing the means by which dying
occurs. (Active vs. Passive).
• Cannot say state’s interest is compelling given the fact that Mr.
Hall’s life no longer can be saved.

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Pages 729-800

THE DECLARATION OF RIGHTS - Chapter 7 (cont.)

11. Privacy
7. Privacy & Statutory Rape

J.A.S. v. State (1998) pg 729

FACTS - JAS, 15, charged w/ statutory rape for consensual sex of 12 yr. old
girl, another boy charged in same situation; both boys had priors
ISSUE - certified question - does potential penalty (2d degree felony) for
violation by minor under 16 of FSA 800.04 further a compelling state
interest through the least restrictive means?
HOLDING - YES; minor’s privacy interest outweighed by state’s interest in
protecting minor’s from harmful sexual conduct
1. Similar policy question in Jones - legislature enacted statutes
protecting minors from harmful sexual conduct, those laws clearly
invoke policy that “any type of sexual conduct involving a child
constitutes an intrusion upon the rights of that child, whether or not
the child consents . . . therefore, society has a compelling interest in
intervening to stop such misconduct;” adult-minor relationship -
protection from abuse, exploitation
2. Similar policy question in BB - a 16 yr. old female had right of
privacy in having sex w/ another 16 yr. old; applied “stringent test”
to FSA 794.05 - the state “must prove that the statute furthers a
compelling state interest through the least intrusive means;” minor-
minor relationship - protection from sex b/c of health and quality of
life, not protection from abuse, etc.; state can’t single out, solely on
chastity, 1 of 2 consenting 16 yr. olds for adjudication so FSA
794.05 unconstitutional as applied
Here, minor-minor relationship; FSA 800.04 as applied tips in state’s
interest in protecting minor’s from harmful sexual conduct; FSA 800.04
used to shield 12 yr. olds, not a weapon to arbitrarily adjudicate 15 yr. old
boys; minor’s don’t have an “open-ended” privacy right in having sex with
other minors

State v. A.R.S. (1st DCA 1996) pg 736

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FACTS - 15 yr. old ARS had videotaped himself with younger minor - both
were nude and involved foreplay; ARS showed the tape to someone else;
charged with violating FSA 827.071
ISSUE - was FSA 827.071 unconstitutional as applied to consensual acts
between minors?
HOLDING - NO; FSA 827.072 not limited to protecting minors only from
sexual exploitation by adults, or intended to protect minors from engaging in
sex, but the purpose is to protect minors from exploitation by anyone who
induces them to appear in a sexual performance and shows that performance
to others; statute protected minor’s through least intrusive means

8. Privacy and Grandparent Visitation Statutes

Beagle v. Beagle (1996) pg 739

FACTS - grandparents petitioned for visitation w/ granddaughter, parents
didn’t want, family intact when petition filed
ISSUE - certified question - is FSA 752.01(1)(e) facially unconstitutional b/c it
is impermissible state interference w/ parental rights?
HOLDING - YES; a judge can’t impose grandparent visitation upon an intact
family when at least 1 natural parent objects
Grandparent visitation legislative history
1978 - 61.13 & 68.08 both allowed a court to award visitation
1984 - consolidated 61.13 & 68.08 into 752; established
procedure to petition for visitation - 1) 1 or both parents
deceased, 2) parents divorce, or 3) where a parent has deserted
the child
1990 - guidelines added to determine child’s best interest
1993 - award of reasonable visitation where there’s an intact
family; this is what is challenged
There’s a fundamental liberty interest in parenting; grandparent visitation
rights implicates right of privacy, privacy analysis necessary; FL
Constitution contains privacy provision in Article I, Section 23; no state
compelling interest here; TEST for compelling state interest - when state
acts to prevent demonstrable harm to a child; FSA 752.01 doesn’t require

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 harm be shown before an award of visitation

Von Eiff v. Azicri (1998) pg 744

FACTS - a mom died, dad remarried, step-mom adopted his daughter; maternal
grandparents petitioned for visitation
ISSUE - certified question - is FSA 752.01(1)(a) facially unconstitutional b/c it
impermissibly infringes on privacy rights protected by Article I, Section 23?
HOLDING - YES; reasoning in Beagle applies b/c 725.01 mandates court
SHALL award grandparent visitation when in minor’s best interest if 1 or
both parents are deceased; explicit right to privacy AI, S23; compelling state
interest test not met b/c doesn’t require harm to child be shown; if death of 1
parent was a compelling state interest, harm to kids would be inappropriately
expanded beyond those that traditionally warranted state intrusion;
remarriage created a new “intact” family; problem using best interest test -
allows the state to substitute its views on child-rearing and second guess
parental decisions

Saul v. Brunetti (2000) pg 750

FACTS - boy born out of wedlock; boy and mom lived w/ maternal
grandparents, dad lived with his parents; 8 months later, paternity action,
dad actively involved w/ son since; mom killed 2 years later, son lived w/
dad; maternal grandparents filed petition
ISSUE - Is 752.01(1)(d) unconstitutional?
HOLDING - YES; 2 sections of FSA 752 apply - 752.01(1)(a) - 1 or both
parents deceased AND 752.01(1)(d) - child born out of wedlock; same
analysis as Von Eiff; if dad of a child born into a marriage has a right of
privacy (and mom is deceased), it follows that a dad of out of wedlock child
has the same right of privacy

L. The Taking of Property

Eminent Domain - Article X, Section 6

Department of Agriculture v. Mid-Florida Growers (1988) pg 753

FACTS - Mid-FL Growers operated citrus nurseries, purchased citrus budwood
from another nursery where citrus canker was later detected; Dept. of AG

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 tested Mid-FL and no citrus canker detected but told Mid-FL their stock
must be burned, quarantine not acceptable alternative
ISSUE - Does the state have the constitutional authority to destroy healthy, but
suspect citrus plants without compensation?
HOLDING - NO; Taking - destruction of healthy trees benefitted entire citrus
industry, which benefitted FL’s economy and conferred a public benefit,
rather than preventing a public harm; if a regulation creates a public benefit,
it’s more likely a taking; state action short of acquisition of title or
occupancy depriving the owner of all or most of his interest in the subject
matter is a taking; regulations and statutes may meet necessary standards for
exercise of police power but still result in a taking; Compensation - in
inverse condemnation suits, judge is trier of law & fact, but not amount that
is just compensation; trial court’s determination of liability in inverse
condemnation suit presumed correct, must be supported by substantial,
competent evidence; here, record shows substantial, competent evidence that
trial court found trees were healthy; just compensation required when state,
using police powers, destroys healthy trees

CHAPTER 8 - HOMESTEAD

Homestead Exemption - Article X, Section 4

1) Introduction

Homestead exemption policy - to promote the stability and welfare of the

state by securing to the owner of the homestead, and their heirs, protection
from financial misfortune

Homestead provisions liberally construed, but not to promote fraud or

escaping honest debts

1) Establishment of a Homestead

Once real property attains “Homestead” status, it’s exempt from forced sale,
other judicial process, and generally isn’t subject to liens until the owner
abandons it, transfers it, or owner’s interest terminates

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 Elements for real property to qualify as a homestead
6) it’s owned by a “natural person,”
7) the person must be a FL resident who establishes that he
made/intended to make the property his permanent “residence,”
8) the person must establish he’s the property “owner,”
9) property must satisfy the “size and contiguity” requirements of the
constitution

1. Natural Person Requirement

1984 amendment extended from “head of the family” to all “natural

persons,” which included single people

2. Permanent Residence Requirement

1984 amendment deleted that the person “actually” live in the

residence

3. The Owner Requirement

Constitution doesn’t limit the types of estates eligible for homestead

status, including fee simple and freehold estates, undivided interests
(i.e. tenancy in common)

But, ownership interests must be possessory for homestead status to

attach, so remainder interests don’t qualify, life estates do

4. Size & Contiguity Requirements

Quantity of property depends on property location

In a municipality, homestead restricted to ½ acre of contiguous land
& limited to the residence of owner & his family

Outside a municipality, homestead can extend to 160 acres of

contiguous land and improvements, which can’t be reduced without

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 owner’s consent

1) Duration of and Protection Afforded to a Homestead

Constitution protects the homestead as long as the natural person owns AND
resides on the homestead

1. Duration of Protection from Creditors

To be protected, the homestead must have been established before the

judgment is recorded, or before seizure for forfeiture

Continues while owner or owner’s family is alive AND continuing to

occupy the home

Terminates upon owner’s death OR upon abandonment OR transfer

McGann v. Gerald E. Halker (3d DCA 1988) pg 762

FACTS - McGann is Halker’s ex-wife, he had a 1980 judgment against him;
McGann claimed homestead lost its status when Halker left home to reside
in Alabama; Halker deeded home to himself and new wife on June 27, 1985
ISSUE - was the homestead abandoned?
HOLDING - NO; b/c Halker deeded to himself and new wife, home was
validly placed beyond the reach of judgment against him; whether and when
abandonment has occurred are matters of INTENT of the record property
owner; Halker’s pre-June 1985 trips to Alabama were temporary absences,
he left his family at the home, “consistent with a bona fide intent to return”
& didn’t amount to abandonment

NOTE - if a house is destroyed, insurance money intended to restore the

property is protected; protection also extends to sale proceeds if homestead is
sold

Orange Brevard Plumbing & Heating Co. v. La Croix (1962) pg 763

FACTS - May 22, 1959 judgment recorded, owned as tenants by the entirety &
lived in the homestead; July 22, 1959, home was sold, attorney’s for

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 purchaser learned of judgment & withheld judgment amount pending
determination of homestead status
ISSUE - wether the exemption of homestead property from a forced sale
extends also to the proceeds of a voluntary sale when it’s intended in good
faith to use the proceeds to buy a new house?
HOLDING - YES, BUT ONLY IF, the owner/seller shows by preponderance
of evidence a good faith attempt prior to and at time of the sale to reinvest
the money in a new time in a reasonable time; ONLY so much of the
proceeds as are intended to be reinvested in another homestead may be
exempt; surplus is not exempt; to satisfy exemption, money can’t be
commingled w/ other money of owner/seller

2. Extent of Protection from Creditors

Applies to debts voluntarily incurred AND to other financial obligations

Butterworth v. Caggiano (1992) pg 765

FACTS - Caggiano convicted under RICO & FSA 849 for bookmaking, which
occurred at his home; State sought forfeiture
ISSUE - is forfeiture of a homestead under RICO forbidden by Article X,
Section 4?
HOLDING - YES; FL RICO Act says any real property used in course of or
derived from a crime is subject to forfeiture; language of A10, S4 applies to
forfeiture; homestead exemption should be liberally construed, forfeiture is a
harsh penalty and courts strictly construe such statutes; “sale” in A10, S4 not
used in legal, technical sense; A10, S4 uses broad, nonlegal terms; A10, S4
NOT limited to debtor-creditor relationship b/c provision refers to “forced
sales” and not “forced sales arising from debts;” A10, S4 expressly provides
3 exceptions to homestead exemption and forfeiture/criminal activity isn’t
one of them, i.e.
1) payment of taxes and assessments;
2) obligations contracted for purchase, improvement or repair; OR
3) obligations contracted for house, field or other labor performed on
the realty

1) Exceptions from Homestead Exemption

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 Payment of taxes and assessments
Policy - US supremacy clause overrides homestead exemption &
allows federal government to sell homestead of a delinquent
taxpayer to satisfy the federal tax obligation

Exception for state taxes and assessments only applies to taxes and
assessments ON THE HOMESTEAD ITSELF

Obligations contracted for purchase, improvement or repair

Policy - prevent the injustice of a person borrowing money to
acquire, improve or repair a home, then refusing repayment using
homestead exemption to get out of repaying the debt

Obligations contracted for house, field or other labor performed on the

realty
Policy - same as obligations to buy, improve or repair

1) Inured Homestead Exemptions - Who is an Heir?

Article X, Section 4(b) - homestead exemption created by an owner of

property inures to the surviving spouse or heirs upon the owner’s death

Bartelt v. Bartelt (3d DCA 1991) pg 770

FACTS - Bartelt’s adult son was devisee of his dad’s homestead; creditors filed
claims of 1/3 property value for unpaid medical bills; no surviving spouse
here
ISSUE - does an adult child, a devisee of the homestead, take that property free
of claims of estate’s creditors?
HOLDING - YES; when a homestead is devised to an adult child, i.e. a
member of the class who are the decedent’s heirs, the constitutional
exemption from forced sale by the creditors, inures to that adult child
TEST - not how title was devolved, but whom it passed
personal rep. of estate argued heirs entitled to exemption, BUT devisee’s
weren’t; heirs defined in FSA 731.201(18) as “those persons ... who are
entitled under the statutes of intestate succession to the property of a

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 decedent;” devisees defined in FSA 731.201(9) as persons “designated in a
will to receive a devise;” adult son is an heir via his lineal descendant and
would have gotten property regardless if a will or intestacy; Article X,
Section 4 defines class of persons to whom exemption from forced sale
inures, DOESN’T mandate technique how the qualified person must receive
title

Public Health Trust of Dade County v. Jorge Lopez (1988) pg 772

FACTS - decedent lived w/ 3 adult kids at time of her death
ISSUE - Is homestead property exempt from forced sale for the benefit of
decedent’s creditors, where decedent isn’t survived by a spouse or children?
HOLDING - YES; homestead exemption extends to natural persons and
continues after owner’s death regardless if heirs were dependent on the
owner; “natural persons” does not mean only divorced or widowed spouses;
no words in the provision suggesting heirs or surviving spouse had to be
dependent on the owner
Snyder v. Davis (1997) pg 775
FACTS - lady willed her home to her granddaughter; ladies son was still alive
at the time of her death
ISSUE - does Article X, Section 4 exempt from forced sale a devise of a
homestead by a decedent not survived by a spouse or minor child to a lineal
descendant who is not an heir pursuant to FSA 731.201(18)?
HOLDING - YES; “heirs” isn’t limited to the person(s) who would actually
take the homestead pursuant to intestacy; A10, S4 construed to mean a
testator may devise the homestead (if no surviving spouse or minor children)
to anyone in the class of persons in FSA 732.103 (intestacy statute); to hold
otherwise would make the testator guess who their heirs will be when they
die
Protection against creditor can be transferred with a will to a devisee;
heirs broadly construed to include devisee

Class of devisees getting the protection against creditors is limited;

protections against creditors can be devised to any of the class of
potential heirs under the intestacy statute

1) Restrictions on Intervivos Transfers of Homestead Property

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 Married owner may only alienate homestead by mortgage, sale, or gift, if
other spouse joins in alienation
Exception - where the owner transfers by deed the title to an estate by
the entirety with the other spouse

Pitts v. Pastore (2d DCA 1990) pg 784

FACTS - Pastore lent money to Pitts, loan secured by a mortgage; mortgage
contained an agreement Pitts would fully warrant title and waived
homestead exemption; mortgage recorded; Pitts was sole title holder, but
married and had kids; Pitts defaults, Pastore’s tried to foreclose
ISSUE - was the foreclosure valid b/c of the homestead exemption?
HOLDING - YES; Pitts argued mortgage void b/c his wife didn’t didn’t sign it;
void - can’t be cured; voidable - defect can be cured; constitution doesn’t
prohibit owner from entering into K’s w/out joinder of spouse, ONLY
requires spouse to join in any alienation; mortgage is an executory K - one
promises to allow a future sale of real property if debt isn’t repaid

Jameson v. Jameson (1980) pg 787

FACTS - man conveyed homestead in his sole name to himself and wife as
tenants by the entirety; man died, his son whined that the conveyance was
void b/c his mom didn’t join in the conveyance
ISSUE - when a spouse is the sole title holder, must spouses join in an
interspousal conveyance to both spouses as tenants by the entirety?
HOLDING - NO; Article X, Section 4(c) doesn’t require joinder in an
interspousal conveyance of solely owned homestead property to the husband
and wife as tenants by the entirety; constitutional drafters didn’t intend a
grantee spouse to join in the conveyance
1) Restriction on the Devise of Homestead Property

1. Homestead Owner is Survived by Spouse and Minor Children

Property cannot be devised

Surviving spouse takes a life estate, minor children will take a vested
remainder interest

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 2. Homestead Owner is Survived by Spouse and No Minor Children

Article X, Section 4(c) - property can be devised to surviving spouse,

but must be in FSA

Spouse becomes fee simple title owner

In re Estate of Finch (1981) pg 793

Finch died, left a wife and 2 adult daughters; will left Boca condo to his wife in
LE w/ vested remainder to 1 daughter; FSA 732.401 says homestead can be
devised to spouse if no minor kids, but not if survived by spouse or minor kids;
where a testator dies leaving a surviving spouse and adult kids, property cannot
be devised by leaving less than FSA to surviving spouse; Constitution says
“except the homestead may be devised to the owner’s spouse if there be no
minor children” - this exception is exclusive & prohibits testator from devising
less than FSA to surviving spouse

1) Jointly Held Property

Ostyn v. Olympic (2d DCA 1984) pg 795

FACTS - Olympic was single man, deeded property to himself and 3 others as
joint tenants w/ right of survivorship; 2 of these people were Olympic’s sister
and brother-in-law, 3d person was sister’s daughter; Olympic got married;
Olympic, sister and brother-in-law died; Ostyn is his niece (joint tenant) and
has possession of the property
ISSUE - who is the true owner, Olympic’s niece or his wife as surviving
spouse?
HOLDING - where residence owned by spouses as tenants by the entireties,
when 1 spouse dies it becomes sole property of other spouse; on Olympic’s
death, there was no property interest to which homestead interest could attach
for benefit of defendant

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 1) Termination of Homestead

Homestead status continues until it’s abandoned, devised, alienated, or

legally transferred

Continuous, uninterrupted, physical presence isn’t required to

create/maintain a homestead

Abandonment occurs when claimant has relinquished possession and has

formed the intention of no longer using the property as a homestead
Both the owner and the owner’s family must have abandoned the
homestead

In re Estate of Scholtz (1989) pg 797

FACTS - Scholtz’s separated, not living together; during separation, husband
bought a piece of residential property titled solely in his name, lived there
until moved to a nursing home, he died and left wife and 1 daughter
ISSUE - has abandonment survived the elimination of the “head of the family”
language in Article X, Section 4?
HOLDING - YES; pre 1985 amendment, under certain circumstances,
surviving spouse is deemed to have abandoned homestead, permitting owner
to devise property; no legislative history on the amendment; now,
constitution only refers to ownership of property by a natural person;
homestead may not be devised if owner is survived by a spouse or minor
child; since Scholtz died leaving a surviving spouse, descent of the property
is controlled by FSA 732.401(1)

10. Homestead Summary

Great chart on pg 800 which reviews FL homestead law

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