Legal Corner

Litigation Watch Pending Appellate Court Cases

Addison v. City of Tampa
Case No. 2D06-3168
Second DCA

The certified class of plaintiffs in this case consists of 50,000 members of the Florida Bar who pay occupational license taxes levied by 200 cities and 36 counties in Florida. The issue is whether the occupational license tax, as required to be paid by practicing attorneys, is constitutional. The plaintiffs seek refunds of these taxes for the four years before the filing of the lawsuit and for any such taxes paid after the filing date. FAC, along with Leon County and a coalition of others, filed a joint amicus brief on behalf of the City of Tampa.

The Second District Court of Appeal ruled on August 8, 2007, and upheld the circuit court's certification of both the plaintiff and defendant classes. The lawyers for the City of Tampa are in the process of notifying all potential members of the defendant class of their exposure and has sought FAC's assistance in contacting the counties.

Addison Notice of Appeal Circuit Court Order [PDF]

Addison Amici Motion 2nd DCA [PDF]

Addison Amici Brief 2nd DCA [PDF]

Addison 2nd DCA Opinion [PDF]



Save Our Beaches v. City of Destin, Walton County
Case No. SC06-1449
Florida Supreme Court

Walton County, along with the Florida Department of Environmental Protection, the Internal Improvement Trust Fund and the City of Destin, have appealed a decision of the First District Court of Appeal finding that the application of Section 161.141, Florida Statutes, and the establishment and recordation of an Erosion Control Line ("ACL"), to the properties of the members of Stop the Beach Renourishment, Inc. ("STBR"), constitutes an unconstitutional taking of private property. Although the DCA decision is couched in terms an "as-applied" constitutional challenge, neither the court nor STBR established how the members of STBR are situated any differently than any other owner of beach front property in the State. The practical effect of the decision, therefore, is a determination of the facial invalidity of the statute. The decision would then apply to all existing and proposed beach renourishment projects in the state, as each project requires the establishment and recordation of an ECL. The effect of such a decision, therefore, is the requirement that the state and/or the local project sponsor acquire, through eminent domain, all riparian rights to the upland properties included within a project area prior to the issuance of a permit by the Department of Environmental Protection (the "Department").

Save Our Beaches 1st DCA Opinion [PDF]

Save Our Beaches Supreme Court Amended Amicus Brief [PDF]



Escambia County v. Strand
Case No.SC06-1894
Florida Supreme Court

This case is a bond validation proceeding in which the county prevailed at the trial court level. An intervener is appealing to the Supreme Court on the issue of whether a county has the home rule power to pledge tax increment against debt to finance infrastructure outside the context of a community redevelopment authority. Escambia County requested that the Florida Association of Counties participate as an amicus.

On September 6, 2007, the Supreme Court reversed the trial court's validation order and receded from its prior opinions in State v. Miami Beach Redevelopment Agency, 392 So. 2d 875 (Fla. 1980) and State v. School Board of Sarasota County, 561 So. 2d 549 (Fla. 1990). Miami Beach upheld the use of tax increment financing for bonds in a CRA context without a referendum being required under Article VII, section 12, Florida Constitution and Sarasota County upheld the use of certificates of participation to finance infrastructure construction without a referendum. Furthermore, the Supreme Court ruled the Escambia County's financing plan that used tax increment required a referendum. The Court never addressed the direct home rule issue.

FAC, with the help of Greg Stewart at Nabors, Giblin & Nickerson filed a Motion for Rehearing and Clarification on September 17. Among others, the Florida League of Cities, the Florida School Boards Association, and the Florida Association of District School Superintendents also sought rehearing and clarification. An oral argument has been scheduled for October 9, 2007.

Escambia County Supreme Court Amicus Brief [PDF]

FAC's Motion for Rehearing and Clarification [PDF]



Pinellas County v. City of Largo
Case No. 2D06-4826
Second District Court of Appeal

Pinellas County appealed an unfavorable circuit court opinion that conflicts with the recent Fourth DCA opinion in Palm Beach County v. Village of Wellington http://www.4dca.org/Sept%202006/09-20-06/4D05-2666.op.pdf [PDF]. The issue on appeal is whether a county charter can provide the exclusive method for voluntary municipal annexation in the county. The Fourth DCA in the Palm Beach County case ruled that a county charter could provide the exclusive method for voluntary municipal annexation but that the procedure needed to be in the charter, not in a subsequently enacted ordinance. The circuit court in the Pinellas County matter believed there is no authority for a county charter to prescribe the exclusive method for voluntary annexation. Orange County appeared in the case as amicus curiae on behalf of Pinellas County. On September 19, 2007, the Second DCA ruled that the county's ordinance establishing the exclusive procedure for voluntary annexations were invalid. However, the Second DCA following the reasoning of the Fourth DCA in Palm Beach County v. Wellington, and held that as a charter county Pinellas could exclusively regulate voluntary annexation but that the authority to do so and the method to accomplish it needed to be in the charter and therefore approved by referendum.

Pinellas v. Largo Final Summary Judgment [PDF]

Pinellas v. Largo Orange County Amicus Motion [PDF]

Pinellas v. Largo 2nd DCA Opinion [PDF]



Florida Ass'n of Criminal Defense Lawyers v. Crist
Case No. SC07 - 1744
Florida Supreme Court

On Thursday, September 20, 2007, the Florida Association of Criminal Defense Lawyers ("FACDL") filed for a writ of quo warranto ("by what authority") in the Florida Supreme Court. The FACDL is asking the Court to hear oral argument on the unconstitutionality of SB 1088, Ch. 2007-62, Laws of Florida, which created the five Criminal Conflict and Civil Regional Counsel offices by appointment of the Governor and confirmation of the Senate. The FACDL is also asking the Court to declare Chapter 2007-62, Laws of Florida, to be unconstitutional. These offices were created during the 2007 legislative session to handle the large majority of the criminal conflict cases previously handled by private counsel and to represent indigent clients in certain civil proceedings. The offices are located in the geographic boundaries of the five district courts of appeal.

The counsels are appointed by the Governor based on recommendations from the Supreme Court Judicial Nominating Commission. The appointees are then confirmed by the Florida Senate. The Legislature defines these counsels to be a part of the public defender offices in two places: (1) section 29.008(1), Fla. Stat. ("[T]he term 'public defender offices' includes the offices of criminal conflict and civil regional counsel."); and (2) section 29.001(1), Fla. Stat. ("For the purposes of implementing s. 14, Art. V of the State Constitution,… the offices of public defenders and state attorneys are defined to include the enumerated elements of the 20 state attorneys' offices and the enumerated elements of the 20 public defenders' offices and five offices of criminal conflict and civil regional counsel."). The Legislature created 384 FTEs in the 2007-08 state budget and appropriated $2.2 million to help mitigate the counties' funding obligation. The total magnitude of the fiscal impact on the counties is uncertain.

The FACDL is asking the Court to declare Ch. 2007-62, Laws of Florida, unconstitutional because it violates Article V, section 18 of the Florida Constitution, which requires public defenders to be elected, not appointed. No ruling on the request for oral argument has been made.

Florida Ass'n of Criminal Defense Lawyers v. Crist Supreme Court Petition [PDF]