Cases Flashcards
What type of business damage is specifically NOT avail in a bus dmg claim?
CASES ----------- Interest. ----------- MJ Stavola. b/c it's statute created.
CASES ----------- What case taught us the value of having written procurement policies? ----------- How was that lesson learned?
Baxter.
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Baxter showed he was responsible at time of protest.
LG said responsibility should have been shown when submitting bid.
No written policy, so the Court sided w/ bidder.
What are the 2 requirements of tort claim notice under 768.28(6)(a)?
CASES ----------- 1) Writing 2) Assert a claim. ----------- Wilson v. City of Tampa, 209 So. 3d 646 (Fla. 2d DCA 2017).
What does court require from PL in a public records lawsuit in order to make LG show cause?
CASES ----------- A copy of the request. ----------- Scott (2021)
1983
Public official can be liable because why?
CASES ----------- PO has FINAL decision making authority ----------- US Supreme Court in Pembaur v. City of Cincinnati - custom or policy for a single decision of muni official
What has the 11th circuit said about immunity in 1983?
CASES ----------- Only in exceptional cases will govt. actors have no shield against claims made against them in their individual capacities. ----------- Frausto vs. Picklo
4th
State 4 elements & 1 important fact, re: inverse condemnation.
CASES ----------- 1) Enters for more than a momentary period; 2) under the color of legal authority; 3) devotes it to a public use, or 4) otherwise affects it in as to oust. ----------- Judge (not jury) decides all. ----------- TLC Props —————- ALSO, from Duck Seafarer, there are 2 types (1) Physical & (2) Regulatory.
CASES ----------- Court of Appeals on appeal of a writ of cert. A) What 2 things can they consider? B) What can they not consider? C) Quote. D) Case.
A) Procedural due process + correct law.
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B) Subst. competent evidence.
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C) Courts of appeal are not “legal potted palms.”
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D) Auerbach v. City of Miami, 929 So.2d 693 (Fla. 3d DCA 2006)
What 2 new things did I learn about the applicability of sovereign immunity depending on the origin of certain types of claims?
(1) No sov. imm. for STATUTORY CLAIMS. Ex. the right to sue for Retaliatory Discharge OF AN OMBUDSMAN (only) is a STATUTORY CLAIM, not a tort!!!
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(2) Waiver must be CLEAR & UNEQUIVOCAL
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State of FL, Dept. of Elder Affairs v. Caldwell, 199 So. 3d 1107 (Fla. 1st DCA 2016)
CASES ----------- What 3 things have we learned from cases on muni's extra pwrs? ----------- Name the 4 cases.
FL Sup Ct has upheld extraterritorial powers, particularly re:
-1- proprietary projects,
-2- by municipalities
-3- where such powers are supported by or derived from a legislative grant.
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See:
State v. Town of Riviera Beach, 397 So. 2d 685 (Fla. 1981);
State v. City of Pensacola, 197 So. 520 (Fla. 1940); Town of Palm Beach v. City of West Palm Beach, 239 So. 2d 835 (Fla. 4th DCA 1970) and
City of Ocala v. Red Oak Farm, Inc., 636 So. 2d 81 (Fla. 5th DCA 1994).
Once & for all -
Can a private individual be sued under 42 USC 1983?
YES - if acted under color of law.
ME- the indiv HAS TO BE NAMED INDIVIDUALLY b/c if name in official capacity it is a suit vs. LG.
If sue LG & indiv in official capacity = redundant .
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Foshee v. Health Management
If there is both lawful motive & an assumed BMW motive, does POPE get sov imm?
YES! if ADEQUATE lawful motive.
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“When an adequate lawful motive is present,
even an assumed fact that an unlawful, retaliatory motive also exists does not preclude qualified
immunity.”
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Wall-DeSousa v. Fla. Dep’t of Highway Safety and Motor Vehicles, 691 F. App’x 584, 591 (11th Cir. 2017)
CASES ----------- Is LG's decision to allocate PD during festival protected by Sov Imm? ----------- Why?
Yes - protected b/c that is a discretionary decision.
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Sanchez v. Miami-Dade County, 245 So. 3d 933 (Fla. 3rd DVA 2018)
CASES ----------- What must court specifically do to make a tort sov. imm. claim appealable? ----------- Name the case. —————- Identify the 3 similar rules.
Updated in 2020
No longer must t/c find LG not entitled to sovereign immunity as a matter of law. Now, denial of LG’s motion based on sovereign immunity is sufficient.
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FHP v Jackson, 288 So. 3d 1179 ( Fla. 2020).
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#1) PR - Judge must find that LG unlawfully withheld records.
#2) SJ new - Judge shall state reasons for decision.
& Now -
#3) Sovereign Immunity new - Non-final order is appealable regardless of whether or not Judge stated that LG is or is not entitled to sovereign immunity as a matter of law.
What do you say when your LG has proposed crazy exactions to Applicant Developer?
CASES ----------- LG’s demands upon a land-use permit applicant- (1) must satisfy the requirements of Nollan and Dolan i.e. nexus (2) even when LG denies the permit & (3) even when its demand is for money. ----------- Koontz
Is Commercial Speech easier to control? Why or why not?
Traditionally use more lenient ‘intermediate scrutiny’ test but International Outdoor v. City of Troy says that if Commercial Sign is CONTENT BASED, use STRICT SCRUTINY (“SCIRT”) analysis.
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You can’t treat commercial signs differently based on content.
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>but easier to control private speech, what gives?
CP ----------- LG Decisions Under CP - Support ----------- BONUS - name a case for the 3 prong QJ review.
fairly debatable + pub purp
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Courts do not disturb if some use consistent with the plan is allowed and the decision is supported by competent substantial evidence.
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BOCC Brevard County v. Snyder, 627 So. 2d 469 (Fla. 1993).
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(1) Comp subs evid., (2) proper due process, (3) correct law = Brevard v Snyder
What is the standard for evaluating a competitive procurement award?
LG’s ordinance.
- see Emerald v. Bay County.
What 3 new things did I learn about the applicability of sovereign immunity depending on the origin of certain types of claims?
1) It doesn’t apply & why.
2) It does apply & what that gets PL.
3) What courts look for to determine if Sov. Imm. waiver applies.
(1) For STATUTORY CLAIMS, look for clear & unequivocal waiver. No such waiver in ombudsman statute. Thus, LG is protected by sovereign immunity.
Ex. interfering w/ ombudsman 400.0083(3)(a) is a STATUTORY CLAIM for retaliation, not a tort!!!
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(2) Retaliatory discharge IS A TORT w/ 4 yr S/L & emtl dmgs + partial waiver of sov. imm. (200/300), ex. worker’s comp. see Scott v. Otis Elevator, 524 So.2d 642 (Fla. 1988)
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(3) Waiver must be CLEAR & UNEQUIVOCAL
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State of FL, Dept. of Elder Affairs v. Caldwell, 199 So. 3d 1107 (Fla. 1st DCA 2016)
Does mass casualty event arise out of the same incident or occurrence, thus limiting all claimants to 200/300 cap?
CASES ----------- Yes. ----------- DFS v. Barnett, 303 Sp. 3d 508 (Fla 2020).
CASES ----------- Sports Stadium bond issue. ----------- 3 step validation review.
1) AUTHORITY to issue
-a- 125.01
-b- 166.111 capital ‘or other’
2) PURPOSE is legal
-a- public purp? econ dev - 125.045
-b- if buying/leasing cd argue need to bid but econ dev = exception, no collusion
-c- cd argue private benefit but incidental okay.
Once the stadium is deemed to be for a public purpose, the Court need not micromanage the terms of the lease.
3) Issuance COMPLIES w/ law.
-a- sales/tdt/occupational tax = revenue bond = no referendum
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~confirmed. Rowe v. Pinellas, 461 So.2d 72 (Fla. 1984).
ESSAY ----------- Sports Stadium bond issue. ----------- State 5 arguments to be made after validating a sports stadium bond issue.
1) Property shd have been competitively bid.
> no, econ dev = exception
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2) LG is essentially ‘gifting’ land to corp.
> no, pub purp prevails.
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3) LG is promising zoning
> shd be noted in lease no promises
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4) lending its credit.
> use tax money for pub purp, incidental private
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5) Should have had a referendum on bond.
> not if sales/tdt/occupational tax b/c has no impact on AV.
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Rowe v. Pinellas, 461 So.2d 72 (Fla. 1984).
Name a test worthy situation where Bus dmgs are not available to a BO, beside the eligibility criteria.
LG takes business, leaves parking lot/storage bldgs/submerged, i.e., the remainder seeking bus dmg is not where the business was located.
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Why?
b/c business must be “solicited, accepted, or conducted” on remainder.
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State DOT v. Standard Oil Co., 510 So.2d 324 (2nd Cir. 1987)
Are FCRA claims subject to sov. imm. cap?
TORTS ----------- De Sisito's FCRA de Sov Immuno. ----------- Yes. ----------- City of Delray Beach v. DeSisto, 197 So. 3d 1206 (Fla. 4th DCA 20
• Developer designed & and built city attraction.
• •
• Developer specializes in managing facilities.
Can you include property management in the competitively negotiated turn-key project solicitation?
• No. ~CAN’T TACK IN ON!!!~
Comp bidding & comp negotiation = diff.
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Competitively negotiate for professional services.
Property mgt k is not professional services.
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Miami Marinas Ass’n v. City of Miami, 408 So. 2d 615 (Fla. 3d DCA 1981)
Brush up on:
American Engineering and Development Corp. v. Town of Highland Beach, 20 So. 3d 1000
(Fla. 4th DCA 2009)
City of Sweetwater v. Solo Const. Corp., 823 So. 2d 798 (Fla. 3d DCA
2002)
Emerald Correctional Management v. Bay County Bd. of County Comrs., 955 So. 2d 647 (Fla
1st DCA 2007
Harry Pepper & Associates, Inc. v. City of Cape Coral, 352 So. 2d 1190 (Fla. 2d DCA
1978)
Intercontinental Properties, Inc. v. State Dept. of Health and Rehabilitative Services, 606
So. 2d 380 (Fla. 3d DCA 1992),
SOV. IMM. ----------- Is Clerk entitled to sov. imm. if it fails to redact a record? ----------- Why or why not?
YES.
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Based on separation of powers & clerk acting as a n arm of the judicial branch, & not the legislative.
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Clerk of Collier County v. Doe, 292 So.3d 1254 (Fla 2nd DCA 2020)
State the 4 part test to wh/ LG gets sov. imm.
the Sovereign Programs its Essential workers then Judges w/ Authority.
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1) Does act involve a govt policy, program or objective?
2) Is act essential to that p, p, o?
3) Does it involve exercise of judgment?
4) Does LG possess authority & duty to make that act?
State the 5 part step to analyzing wh/ sov. imm. applies.
2) I.D. Duty. ex. provide security
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3) I.D. wh/ LG gets sov. imm.
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4) Duty & sov. imm. shall not be conflated. Duty does not render sov. imm. inapplicable.
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SB of Broward v. McCall, 322 So.3d 655 (Fla. 4th DCA 2021)
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5) 4 part test [does act involve govt objective? essential to objective? involve exercise of jmt? LG possesses authority & duty to make that act?]
Regarding sovereign immunity, state
(1) Any prerequisite to the new jurisdiction of C/A to review T/C decision;
(2) 2 other claims identically affected & 2 that are opposite; &
(3) The breadth of what C/A can review.
New C/A juris to consider T/C decision on the issue of sovereign immunity:
(1) No longer requires t/c to state that LG not entitled to sovereign immunity “as a matter of law”;
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(2) Qualified immunity + immunity of LEO causing a crash in pursuit [no reckless disregard, per policy & forceable felony @ 768.28(9)].
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BUT -
(a) Public Records, T/C must find LG UNLAWFULLY withheld public records &
(b) SJ - T/C shall provide its reasonings for its decision on MSJ.
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(3) Allows not just a review of the challenged ORDER denying sov. imm. but also the MOTION adjudicated.
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Previously juris focused on 4 corners of challenged ORDER.
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City of Sweetwater v. Pichardo, 314 So.3d 540 (FL 3rd DCA 2020)
EMPLYMT ----------- Can a person be dismissed for testifying in response to a subpoena? --- If fired, does sov. imm. protect LG?
EMPLYMT ------------ Cannot fire. Enjoys sov. imm. ----------- FS 92.57 - (a) Says can't dismiss employee for testifying. (b) Does not contain a waiver of sov. imm. Can't link it to 768.28. ------------ FFWC v. Hahr, 2021.
Sheriff failure to train has 2 claims:
1) Liab under 42 USC 1983 for deprivation of DP under 14th Amend.
2) Negligence.
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Set forth the 5 part test for the Federal claim.
1) PL is entitled to some const rt (ex med care). Wants to hold LG liab under 1983 for violation of rights under Due Process Clz of 14th Amend.
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2) DP under 14th - deprive L,L,P w/o dp
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3) 1983 - Person depriving another of constitutional rights under color of law.
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4) LG
(a) “person” under 1983
(b) not be liab on respondeat superior.
(c) liab only when policy or custom inflicts injury.
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5) Policy
(a) express, widespread practice, final policy making authority, i.e., deliberate choice of LG,
(b) constructive knowledge, thus showing indifference
(c) cz of injury.
Sheriff failure to train has 2 claims:
1) Liab under 42 USC 1983 for deprivation of DP under 14th Amend.
2) Negligence.
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Set forth the 6 part test for the Negligence.
[re]TRAIN the Duty to Construct Correct WIFI
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1. Duty reas care in train.
2. Actual/construc knwlg of need for diff training.
3. Unreas failed to take corrective act.
4. Injured by EE’s indep wrongful act.
5. Indep wrongful act = foreseeable.
6. Unreas failure corrective act = cz of injury.
