Supreme Court refers issue to the Rules of Judicial Administration Committee: Should the Court require written final decisions with detailed findings of fact in local land use quasi-judicial determinations?  Broward Co. v. G.B.V. International, LTD., 787 So.2d 838 (Fla. 2001).

       This case was on review from the Fourth DCA to determine whether the order of the District Court reversing the circuit court and remanding a land use decision by  Broward County for entry of an order directing the County Commission to approve a proposed plat amendment was appropriate.  At issue was a proposed plat amendment for a parcel in Broward County.  The Supreme Court reversed the Fourth DCA for failure to properly apply the Tier II certiorari review by “conducting its own de novo assessment of the plat application.”  The Court then remanded the matter to the circuit court for proper application of certiorari review, that is, a review of the record to determine whether the local government’s decision was supported by competent substantial evidence. 

     In reaching this conclusion, the Supreme Court did note the minimal record from the County Commission for purposes of facilitating certiorari review of that decision.  Citing to Board of County Commissioners v. Snyder, 627 So.2d 469 (Fla. 1993), the Court further observed that a written decision with findings was a recommended course of action but not a prerequisite.  Apparently recognizing the resulting dilemma with certiorari review in the absence of such a record, the Supreme Court referred the following question to the Rules of Judicial Administration Committee of the Florida Bar: “[w]hether the Court should implement a rule requiring written final decisions with detailed findings of fact in local land use actions that are subject to review in the courts.” In contrast, Justice Pariente dissenting with whom Justice Anstead concurred, stated that rather than referring the question to the Rules of Judicial Administration Committee of the Florida Bar, she would recede from that portion of Synder that did not require written findings and require such findings by quasi-judicial boards in the future. 

     Supreme Court expands Lucas categorical takings analysis to prospectively temporary regulations.  City of St. Petersburg v. Kablinger; and Keshbro, Inc. v. City of Miami, 26 Fla. L. Weekly S469 (Fla., July 12, 2001).

     The question before the Supreme Court was whether temporary closures ordered by City Nuisance Abatement Boards (“NAB”) to abate public nuisances constitute takings. 

     In Keshbro, the petitioner owned and operated the Stardust Motel which contained 57 units in Miami, Florida.  Since 1988, the City of Miami NAB and Keshbro had frequent interactions.  On October 16, 1992, the NAB ordered the Stardust closed for one year because of drug and prostitution related nuisance violations.  At the reopening in 1993, the Stardust suffered the same problems.  The NAB, on December 10, 1996, served Keshbro with a Notice of Hearing, again charging the Stardust as a drug and prostitution related nuisance.  The Notice recited at least eight arrests involving drug and prostitution activity at the Stardust Motel within the preceding six months.  Keshbro and the NAB stipulated that the Stardust constituted a public nuisance and agreed to a partial closure of the Stardust.  Months later in March 1997, after a status report hearing, the NAB ordered the closure of additional rooms for six months based on additional incidents of drug and prostitution related activity.  Then again in June 1997 the NAB, after hearing additional evidence of nuisance activity including three arrests for the sale of cocaine, ordered a complete closure of the Stardust for six months.  Keshbro responded by filing suit against the City of Miami Beach and the NAB seeking declaratory and injunctive relief and damages for inverse condemnation for the complete closure of the Stardust. 

     The circuit court granted Keshbro’s motion for summary judgment on the inverse condemnation claim. On appeal, the Third District found that although the NAB’s closure order denied all economically beneficial use of the Stardust, no compensation was required to Keshbro under the nuisance exception announced in Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1992.

     In Kablinger, the City of St. Petersburg NAB on July 1, 1993, ordered the closure of an apartment complex based on two incidents involving the sale of cocaine within the preceding six months.  After a corporate dissolution, Kablinger was assigned the interest in the apartment complex.  Kablinger then filed a complaint on June 17, 1997 against the City seeking compensation from the NAB for the 1993 closure.  The trial court granted Kablinger’s motion for summary judgment as to liability for the temporary taking and on appeal the Second District affirmed the summary judgment. 

     Although both district courts applied the takings analysis established in Lucas, the cities argued that the closure orders of the respective NABs are not suitable for analysis under Lucas.  The Supreme Court rejected the cities’ arguments and found that the categorical takings analysis enunciated in Lucas was applicable to the orders of the NABs.  Under Lucas, a regulatory action that “denies all economically beneficial or productive use of land” will require a city to pay compensation unless the regulation falls within the nuisance exception.  The nuisance exception, as described in Lucas, states that no compensation is necessary if the regulation “does no more than duplicate the result that could have been achieved in the courts by adjacent landowners...under the state’s law of private nuisance, or by the state under its complementary power to abate nuisances that affect the public generally, or otherwise”.  Lucas, 505 U.S. at 1029. 

     The issue then faced by the Court was whether the categorical analysis in Lucas was appropriate to determine whether the temporary closures ordered by the respective NABs deprived Keshbro and Kablinger of “all economically beneficial or productive use” of their land.  After establishing that temporary deprivations or regulations can constitute takings, the Supreme Court extended the rationale in First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304, (1987) to hold that takings of a defined duration “or temporary in nature” can qualify for categorical treatment under Lucas.  The Supreme Court noted that although First English, “referred to retrospectively temporary takings, absolutely precluding prospectively temporary regulations from treatment under Lucas elevates form over substance and defies economic realities”.  Keshbro, at 5470.  Thus, the Supreme Court held that a temporary regulation that “denies all economically beneficial or productive use of land” is subject to categorical treatment under Lucas. 

     The cities next contended that the NAB orders did not deprive the property owners of all economically beneficial or productive uses of the property because the property could be used for other uses.  The Supreme Court rejected this argument, recognizing that both properties had already been dedicated to a particular use.  In particular, the Supreme Court noted in the Keshbro case that transforming a 57-unit motel into some other use for a six month period lacked any basis in reason. 

     The issue then became whether the nuisance exception offered protection to the local governments.  As noted in Lucas, the cities can resist paying compensation only if the cities can identify “background principles of nuisance and property law that prohibit the uses” that are prescribed by the orders.  Thus, the NAB orders can prescribe only those uses that an adjacent landowner, under the state’s law of private nuisance, would be able to prescribe in a court action for nuisance.  Recognizing that it is settled law in Florida that injunctions to abate nuisances will be specifically tailored to abate only the objectionable conduct, without infringing upon other lawful conduct, the Court analyzed each case individually. 

     In Keshbro, the Supreme Court, affirming the District Court, concluded that the Stardust had become inextricably intertwined with the drug and prostitution activity that was sought to be enjoined and the only way to abate the drug activity was to close the motel.  Therefore, the Supreme Court concluded that the nuisance exception should apply.  

     In contrast, the record in Kablinger revealed no drug or prostitution activity that would indicate that the nuisance activity was inextricably intertwined with the operation of the apartments.  Thus, the Supreme Court held that the NAB order closing Kablinger’s apartment was not specifically tailored to abate the drug nuisance found to exist at the property.  Accordingly, the owner was entitled to compensation for the temporary taking.

     Recognizing the legislative overruling of St. Johns River Water Management Dist. v. Consolidated-Tomoka Land Co., 717 So.2d 72 (Fla. 1^st DCA 1998), the First District Court of Appeal finds the 1999 APA Amendments limit a governmental agency’s rule-making authority to “specific law[s] to be implemented.” Board of Trustees of the Internal Improvement Fund v. Day Cruise Ass’n, Inc.,  (Fla. 1^st DCA, September 13, 2001).

     Day Cruise Ass’n (“Day Cruise”) challenged a proposed rule of the Board of Trustees of the Internal Improvement Fund (“Board”) that attempted to prohibit cruise ships bound offshore for legal gambling, as well as other vessels used for ferrying passengers to and from these ships, from using submerged sovereign lands for mooring or anchoring.  Citing section 120.52(8)(b) & (c), F.S. (1999), Day Cruise asserted that the Board exceeded its rulemaking authority and the proposed rule enlarged, modified, or contravened the specific provisions of law being implemented by the Board.  After the ALJ invalidated the proposed rule as an invalid exercise of delegated legislative authority, the Board appealed. 

     The First District noted that although the Board has broad responsibilities under the public trust doctrine for managing the state’s submerged lands, these responsibilities do not exempt or excuse the Board’s proposed rules from complying with the Administrative Procedures Act (“APA”).  Next, the Court recognized that in 1999 the Legislature amended the language of section 120.52(8), F.S., from “particular powers and duties” (adopted in 1996) to “specific powers and duties.”  In addition, the Court recognized that the 1999 legislative amendments were in response to the 1^st DCA’s interpretation of the “particular powers and duties” language in St. Johns River Water Management Dist. v. Consolidated-Tomoka Land Co., 717 So.2d 72 (Fla 1^st DCA 1998), which held that administrative rules were valid if they were “within the class of powers and duties identified in the statute to be implemented.”

     The Court interpreted the 1999 Amendments as an “intent to cabin agency rulemaking authority” and an express rejection of the “class of power and duties” test.  Consequently, it held that the test under the 1999 APA Amendments was “whether a (proposed) rule gives effect to a ‘specific law to be implemented,’ and whether the (proposed) rule implements or interprets ‘specific powers and duties.’”

      Applying this new test to the facts at issue, the Court found no specific power for the Board to regulate gambling cruises or regulate the type of vessels that may anchor or moor above submerged lands based solely on the lawful activities carried on aboard the vessels.  The Court also found that the proposed rule violated a specific limitation in the enabling legislation that forbid any regulations from interfering with commerce on navigable waters.  As such, the Court affirmed the ALJ’s final order invalidating the rule as an invalid exercise of delegated legislative authority.

     Government agency has no authority to review Administrative Law Judge’s award of attorney’s fees and costs as sanctions against the Agency.  Florida Dep’t of Children and Family Serv. v. D.H., 26 Fla. L. Weekly D954, (Fla. 1^st DCA, April 5, 2001).

     An Administrative Law Judge (“ALJ”), pursuant to Sections 120.569(2)(c) and  120.595(1), F.S., sanctioned the Department of Children and Family Services for “bringing and pursuing a frivolous and improper action against D.H.”  The Department in its final order reversed the ALJ’s award of attorney’s fees and costs.  On appeal, the First District Court held that the Department lacked the authority to review the ALJ’s award of attorney’s fees and costs, and also found that the ALJ did not abuse his discretion in awarding fees and costs.

     The Florida Fish and Wildlife Conservation Commission must adopt administrative rules regarding endangered species in accordance with the provisions of Chapter 120, F.S.  Florida Fish and Wildlife Conservation Comm’n v. Caribbean Conservation Corp., Inc., 26 Fla. L. Weekly D1480,  (Fla. 1^st DCA, June 12, 2001).