FL Con Law

Question 1

FL Declaration of Rights

FL Con Law

Answer 1

Florida’s Declaration of Rights is analogous to the U.S. Constitution’s Bill of Rights, but not identical in many ways. FL’s Declaration of Rights bestows more protections to Floridians than the Bill of Rights.

1. Equal Protection
2. Property Rights
3. Freedom of Speech and the Press
4. Freedom of Assembly
5. Right to Work
6. Freedom of Religion
7. Right of Privacy

Question 2

Equal Protection Under the FL Constitution

FL Con Law (Dec of Rights)

Answer 2

• Forbids discrimination ONLY based on race, religion, national origin, or disability;
• = strict scrutiny review
• Strict scrutiny = Gov must prove law is narrowly tailored to achieve a compelling government interest using the least restrictive means.

NOTE: All other classifications receive rational basis review.

NOTE: No Intermediate scrutiny under the FL Constitution.

• HOWEVER, courts apply intermediate-like scrutiny to laws which impair private contracts.
• = Sole instance of when courts use intermediate scrutiny.
• = reasonable and necessary to further an important state interest

Question 3

Property Rights

FL Con Law (Dec of Rights)

Answer 3

• The FL Constitution protects the right to acquire, devise, possess, and protect property.
• In any challenge to the government restriction to these rights, the court will apply strict scrutiny.

Question 4

Freedom of Speech and of the Press

FL Con Law (Dec of Rights)

Answer 4

• FL Courts have enforced these rights in the same manner as the US Constitution’s 1st Amendment.
• FL courts distinguish between content-based regulations and time/place/manner regulations in the same fashion as under the federal constitution, including recognition of unprotected speech (obscenity, fighting works, inciting violence, clear and present danger, etc.)

Question 5

Freedom of Assembly

FL Con Law (Dec of Rights)

Answer 5

• As a fundamental right, Florida courts apply the strict scrutiny test in the same way as federal courts.
• IN ADDITION, Florida Declaration of Rights adds the “right to instruct representatives.”

Question 6

Right to Work

FL Con Law (Dec of Rights)

Answer 6

1. The Florida Constitution prohibits an employer from denying or abridging the right to work on the basis of membership in a labor union.
   * Workers are guaranteed the right if they choose to bargain collectively through a labor organization.
2. Prohibits a labor union from negotiating a contract that would require workers to become union members or pay union dues.
3. Public employees have no right to strike.

In any challenge alleging a violation of these rights, the courts apply strict scrutiny.

Question 7

Freedom of Religion

FL Con Law (Dec of Rights)

Answer 7

1. Same as federal analysis. (“Coextensive”)
2. No law may respect the establishment of religion nor penalize or prohibit the free exercise of religion.
3. Laws doing such receives strict scrutiny review (narrowly tailored to advance a compelling state interest, least restrictive means)
4. ADDED BY FL DEC OF RIGHTS: Religious practices may be restricted if they violate public morals, peace, or safety.

Question 8

Limits on Attorney Contingency Fees

Question 9

Due Process

FL Con Law (Dec of Rights)

Answer 9

1. Same as federal analysis. (No person can be deprived of life, liberty, or property without due process of the law. Can be procedural or substantive.)
2. Procedural DP: Right is intended to ensure fair treatment in the course fo legal proceedings. (Ensures a fair trial; right to a jury trial (in most cases); adequate notice of proceedings and a right to be heard in court; opportunity to appeal an adverse decision, etc.)
3. Substantive DP: Prohibits government restriction on fundamental rights (under the FL Constitution).

• Receives strict scrutiny (narrowly tailored to advance a compelling state interest).
• Fundamental Rights: (Nine listed below):
  
  • Due Process
  • Property Rights
  • Freedom of Assembly
  • Freedom of Religion
  • Freedom of Speech and Press
  • Right to Work
  • Right to Privacy
  • Right to Travel
  • Right to Vote

Question 10

Search and Seizure

FL Con Law (Dec of Rights)

Answer 10

Same as federal 4th amendment analysis (Coextensive). (Protects against unreasonable searches and seizures by the state).

1. Home: Searches and seizures w/o a warrant are presumptively unconstitutional.
   * EXCEPTIONS: Consent, probable cause and exigent circumstances, such as fleeing felon risk of destroying evidence or risk of serious harm to another; in plain view).
2. Person: When an officer observes unusual conduct and has reasonable believes that criminal conduct is afoot, officer may briefly stop and make reasonable inquiries to confirm or dispel any suspicions.
3. Schools: School officials need not obtain a warrant before searching a student under their authority. Search only needs to one reasonable.
4. Cars: SEE NEXT SLIDE

Question 11

Search and Seizures of Vehicles

(List 5 allowed searches)

FL Con Law (Dec of Rights)

Answer 11

1. Traffic Stops: Can stop if reasonable suspicion that a traffic violation has occurred or criminal activity is afoot.

• Pat-Downs: Can pat-down driver and passengers during a lawful traffic stop. Need not believe that any occupant is involved in criminal activity.
• Use of a narcotics dogs to walk around car during a lawful stop does not require reasonable suspicion.

2. Vehicle Searches: Automobile Exception: Can conduct reasonable search of car when probable cause exists that vehicle contains evidence of criminal activity. Can search any area where evidence could be found.
   * Right not absolute; lock boxes and locked trunks/glove compartments need warrant with separate probable cause that it likely holds contraband.
3. International Borders: Officers at an international border may conduct routine stops and searches.
4. Sobriety Checkpoints: Officers can conduct sobriety checkpoints to combat drunk driving.
5. Highway Checkpoints: State may set up highway checkpoints where stops are brief and seek voluntary cooperation in the investigation of a recent crime that has occurred on the highway.
   * HOWEVER, STATE CANNOT use highway checkpoints for the purpose of discovering narcotics.

Question 12

Access to Courts

FL Con Law

Answer 12

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

• If state restricts access to courts, it MUST provide a reasonable alternative OR show there is no other way to accomplish an overwhelming public need.
• EXAMPLES: Excessive court filing fees; SOL barring actions before accrual; posting an excessive bond prior to litigation - ALL VIOLATE ACCESS TO COURTS.

Question 13

Right to Jury Trial

FL Con Law (Dec of Rights)

Answer 13

1. Guaranteed to ALL
2. (NOT AVAILABLE in eminent domain or proceedings seeking equitable relief.)
3. Qualifications and # of jurors set by statute.

• Capital cases = 12
• All other cases = minimum of 6.

Question 14

Prohibited Laws

FL Con Law (Dec of Rights)

Answer 14

1. No Bill of Attainder: Cannot find a person(s) guilty of a crime w/o judicial proceeding.
2. No Ex post Facto: Cannot enact laws retroactively that punish past acts that were legal when first conducted.
3. No Laws Impairing the Obligation of Contracts

• Courts distinguish between private and public contracts
• FL courts allow almost no impairment of public contracts (where the state or its subdivisions are a party).
• A law impairing a private contract is constitutional if it is reasonable and necessary to serve an important state interest (INTERMEDIATE SCRUTINY ANALYSIS; sole instance of when courts use IS.)

Question 15

Access to Public Records:

The Sunshine Law (List 3 Requirements)

FL Con Law (Dec of Rights)

Answer 15

• Every person has the constitutional right to inspect or copy any public record made or received in connection with the official business of any state.

EXCEPTION: Records specifically made confidential by the constitution.

NOTE: If denied access, must state reason for denial and provide provision.

• “Open and Noticed Requirement”: Even person has right of access to any government proceeding; Proceedings must be open and reasonably noticed to the public.

1. Applies to any gathering, whether formal or casual, of two or more members of the same board.
2. Applies equally to all boards or commissions whether appointed or elected.
3. Applies to any matter discussed which may foreseeably come before that board for action.
4. Applies at both state AND local levels (meetings of state executive branch, county, municipality, school district, or special district)
5. Does NOT apply to federal agencies operating in the state.
6. Does NOT apply to the judiciary.
7. Does NOT apply to the legislature (has its own specific provisions)

NOTE: Persons can videotape so long as it is not disruptive.

NOTE: Members from a public board can meet socially so long as matters that may come before the board are not discussed.

• Lastly, meeting minutes MUST be taken.

Question 16

Miscellaneous Provisions:

Criminal Procedure Rights

FL Con Law (Dec of Rights)

Answer 16

1. Right to pretrial release on reasonable bail.

EXCEPTIONS: Person charged with capital crimes or crimes punishable by life imprisonment. Courts may also deny to protect safety of the community or when reasonably believes defendant is a flight risk.

2. Rights of Accused:

• Right to a grand jury indictment (only in capital offenses)
• Right to a copy of the charges and information concerning the accusation.
• Right to confront accusers
• Right to counsel
• Right to a public, speedy trial
• Right to testify

3. Rights of Crime Victims:

• Right to be notified of all relevant court proceedings
• Right to confer with prosecutor
• Right to be advised of any disposition fo the case.

4. Excessive Punishment: FL Constitution prohibits:

• Cruel and unusual punishment
• Excessive Fines
• Forfeiture fo estate
• Indefinite imprisonment
• Unreasonable detention of witnesses.

5. Habeas Corpus: May be granted as a right and cannot be suspended unless necessary to ensure public safety.

Question 17

Miscellaneous Provisions:

Administrative Action

FL Con Law (Dec of Rights)

Answer 17

Agencies CANNOT punish by imprisonment, and its civil penalties are limited to those set by statute.

Question 18

Miscellaneous Provisions:

Limitation of Attorneys’ Fees

FL Con Law (Dec of Rights)

Answer 18

FL Constitution limits attorneys fees to 30% of the first $250,000 in damages, and 10% of any damages above that.

Question 19

Eminent Domain

FL Con Law (Dec of Rights)

Answer 19

Private property can ONLY be taken for a public purpose and with full compensation paid to each owner.

1. DIFFERS FROM FEDERAL ED: Unlike ED under the 5th Amend., private property taken CANNOT be conveyed to a natural person or private entity, even if for a public purpose.
2. Public Purpose Defined: Any conceivable public purpose, even if the public benefit is indirect.
   * Ex. If it increases the amount of ad valorem property tax collected by the municipality.
3. Taking Defined: Taking must result in substantial ouster of owner that deprives him of all beneficial use or enjoyment of the property.
4. Inverse Condemnation: The result of government’s action results in depriving owner of use of the property
   * (i.e. zoning ordinances that substantially restricts use off the property).
5. Full Compensation: Fair market value + attorney’s fees.
   * EXCEPTION: Government can exercise its police power for the health, safety and welfare of the public. NO COMPENSATION IS NEEDED (Ex. Health hazards).

Question 20

Eminent Domain (Under the 5th Amendment)

+ Differences from FL Constitution

FL Con Law (Dec of Rights)

Answer 20

5th Amendment ED

2 Requirements: (1) Public Use and (2) Just Compensation

NOTE: Cannot be used to prevent a taking by the gov; can only be used to prevent them from not paying when they do take.

1. Public Use: Use must benefit public as a whole. Taking must be rationally related to any conceivable public purpose.
2. Just Compensation: Fair market value of the property (no attorney’s fee requirement)
3. Economic Use Doctrine: Is a taking if it eliminates all economically viable use of owner’s property.
4. NOTE: Permanent physical occupation by government on part of a property = taking even if it does not dispossess owner.

Ex. Running cables through a small portion of owner’s property.

Differences between 5th Amend. and FL Const. ED:

• Federal ED allows government to take property and give to a private person or entity so long as for a public purpose/benefit. FL ED does NOT allow this.
• Federal ED requires JUST compensation and defines it as fair market value. FL ED requires FULL compensation and defines it as as fair market value as well, but adds attorney’s fees.

Question 21

Sovereign Immunity

FL Con Law (Dec of Rights)

Answer 21

• 11th Amendment grants the state immunity from suits by its citizens or by the citizens of other states for monetary damages.
• Immunity does NOT apply to state subdivisions (municipalities, counties, etc.)
• State can waive privilege.
  
  • NOTE: Law states that FL is liable for tort claims by individuals, but does NOT allow punitive damages. Also, FL and its subdivisions are NOT liable to pay a claim that exceeds $200,000, and cannot exceed $300,000 for all claims arising out of the same transaction or occurrence.
• Only liable for operational activities, NOT PLANNING ACTIVITIES.
  
  • Operational Activities: Activities (such as operating parking garages, swimming pools, etc.) that are of a nature performed by private entities.
  • Planning Activities: Ex. Setting a speed limit, decision to place a median on a street.
• Discretionary policy-making or planning activities are immune from tort liability.
• Even when waived, Plaintiff must prove breach of a duty of care.

Question 22

Right to Bear Arms

FL Con Law (Dec of Rights)

Answer 22

1. FL Constitution, along with the 2nd Amendment, protects the rights fo citizens to possess firearms.
2. FL Law requires a three-day waiting period before the delivery of a handgun from a retail dealer.
3. FL Law prohibits state government (not second hand dealers) from keeping a record of firearm owners. (Does not include records required by federal law)
4. Secondhand dealers or pawnbrokers may only keep records for 30 days

Question 23

Amending/Revising the FL Constitution

(5 Methods)

FL Con Law (Dec of Rights)

Answer 23

1. Legislation: Amendment can be placed non the ballot by 3/5 vote of both houses.
2. Revision Committee: Meets every 20 years and may propose changes.
3. Initiative: A person may file a petition which contains a proposal for changes, and signed by a sufficient number of voters in at least ½ of the congressional state districts.
4. Constitutional Convention: This is a proposal to amend the entire constitution, initiated by petition, and if sufficient, the question “Shall a constitutional convention be held?” is placed on the ballot for voting.
5. Taxation and Budget Reform Commission: Meets every 20 years to consider amendment/revision.

Question 24

Separation of Powers (General)

FL Con Law

Answer 24

1. The FL Const. expressly incorporates the separation of powers (unlike the U.S. Const.)
2. Powers of the state are divided between the legislature, executive, and judicial branches.
3. Encroachment: One branch cannot exercises the powers of another unless provided in the constitution.
4. One branch can also not delegate powers expressly provided to it via the FL Const. to another branch.

• Exception: Legislature is allowed to delegate legislative duties to administrative agencies (executive branch).
• Example: Courts cannot delegate duties to administrative branch.

Question 25

Legislative Branch: Composition and Legislative Sessions (Two Types)

FL Con Law (Separation of Powers)

Answer 25

1. Composed of (1) the House of Representative and (2) the Senate.
2. Legislative Sessions:

• Regular Sessions:
  
  • Meets every year for 60 consecutive days.
  • Convenes the first Tuesday of March in odd-numbered years, and the second Tuesday of January of every even-numbered year.
• Gubernatorial Special Sessions:
  
  • Called either by the governor OR by joint proclamation issued by Senate President and house Speaker. .
  • Lasts no more than 20 days (unless extended; needs 3/5 vote for extension).
  • Usually focused on a single issue.
  • May take on additional business upon a ⅔ majority vote.

Question 26

Legislative Branch: Presenting a Bill

FL Con Law (Separation of Powers)

Answer 26

1. Must be presented to Governor for approval.
2. Bill becomes law if:

• Governor signs it;
• Governor does not veto within 7 days (NOTE: Differs from Presidential veto power - bill becomes law if not vetoed within 10 days); OR
• Governor does not veto the bill within 15 days when Legislature adjourns sine die (for more than 30 days)
  
  • In other words, when the Legislature is adjourning for more than 30 days, governor has 15 days (instead of 7) to veto before it becomes law.

3. Legislature can override veto by ⅔ vote in each house.

Question 27

Legislative Branch: Bill Requirements (List 6)

FL Con law (Separation of Powers)

Answer 27

1. Law cannot be vague: An average person of common intelligence must be able to understand when is permitted or prohibited.
2. Law cannot be overbroad: No “all”, “anything”, etc.
3. Must include a title: Title must notify a reader of its subject matter.
4. Must have Enacting Clause: “Be it enacted by the Legislature of the State of Florida.
5. Must be reasonably related to the public welfare.
6. Must comply with single-subject rule, which has three components:

• Each law must only embrace one subject;
• may include any matter properly connected to the subject; and
• Subject must be the one briefly expressed in the title.

Question 28

The Legislative Branch: Three Types of Law

FL Con Law (Separation of Powers)

Answer 28

NOTE: Exam question will NOT tell you what type of law it is (general, special or population act) – you must ANALYZE IT.

1. Special Law: Applies to a specific class of people for objects, OR is local in its applicability – usually tied to a county. Requires EITHER notice or referendum.
2. General Law: Applies uniformly throughout the state / treats all objects coming within the operation of the statute uniformly. No notice or referendum necessary.
3. General Law of Local Application (“Population Act”: Applies specifically to areas or counties with a specific population. No notice or referendum requirement.

NOTE: Pop. Act is not constitutional UNLESS subject matter of the law is reasonably related to the population classification.

Question 29

Special Laws (AKA Local Laws)

FL Con Law

Answer 29

1. Special Law Defined: Applies to a specific class of people or objects, OR is local in its applicability – usually tied to a county.
2. Requires either NOTICE of intention to seek enactment (in a newspaper of general circulation) or REFERENDUM (approved by majority vote by voters in the area affected by the law.)
3. Special laws are PROHIBITED as to the following subjects: (NOTE: These areas where citizens benefit from a uniform application of the law within the state)

• Elections
• Taxation
• Rules of Evidence
• Criminal penalties
• Trial juries
• Change of venue
• Conditions precedent t civil or criminal proceedings
• Creation of liens
• Divorce
• Adoption
• Regulation of occupations.

Question 30

General Law of Local Applicability

(AKA “Population Act”)

FL Con Law

Answer 30

General Law of Local Application (“Population Act”:

1. Applies specifically to areas or counties with a specific population.
2. No notice or referendum necessary.
3. NOTE: Not constitutional UNLESS subject matter of the law is reasonably related to the population classification.
4. EXAMPLE: Law banning nudist colonies in any county with a pop. between 36,000 and 38,000. Only county within that pop. range was Pasco country. FL Supreme Court held that there was no basis for concluding that the evil of nudist colonies was related in any way to a particular pop. level. Statute was unconstitutional.

Question 31

The Executive Branch Branch: General

FL Con Law (Separation of Powers)

Answer 31

1. Governor is the supreme executive power in the state.
2. Must be at least 30 years old and a FL resident for at least seven (7) years.
3. Governor acts as commander-in-chief, initiates legal proceedings on behalf of state, has appointment power, and may grant clemency to convicted defendants.
4. Executive branch may perform its functions through executive agencies/departments. Constitution limits the number of departments to 25.

Question 32

The Judicial Branch: Courts and Judges (General)

FL Con Law (Separation of Powers)

Answer 32

Courts – Four Levels:

1. Supreme Court
2. District Court of Appeals
3. Circuit Courts
4. County Courts

Judges:

1. Supreme Court and District Courts of Appeal: Appointed by governor.
2. Supreme Court and District Courts of Appeal: Retention election.
3. Circuit and County Courts: General election is geographic area.

Question 33

The Judicial Branch: Supreme Court Jurisdiction

FL Con Law (Separation of Powers)

Answer 33

Mandatory Appellate Jurisdiction:

1. Death penalty cases
2. District Court of Appeals (DCA) decisions invalidating a law.

Discretionary (Certiorari) Jurisdiction:

1. Decisions dealing with state officers
2. Decisional conflicts between DCA’s
3. DCA decisions validating statutes and construing state and federal constitutional provisions
4. DCA decisions involving “matters of great public importance”
5. Bypass Certification: Allows SC to directly review a decision by a county or circuit court that is certified by a DCA to be of great importance or to have a great effect soon the administration of justice.

Administrative Jurisdiction:

• Rules of procedure
• FL Bar (ex. attorney discipline)

Question 34

The Judicial Branch: District Appellate Court Jurisdiction

FL Con Law (Separation of Powers)

Answer 34

• Mandatory Jurisdiction: Final circuit court orders and final state agency orders.
• Discretionary Jurisdiction: Non-final orders of circuit court, final orders of circuit court appeal decisions, and Bypass Certification.

Question 35

The Judicial Branch: Circuit Court and County Court Jurisdiction

FL Con Law (Separation of Powers)

Answer 35

Circuit Court

Appellate:

• Final orders of County Court
• Final orders of Agencies under the Admin. Procedure Act

Trial:

• Original jurisdiction
• Amount in controversy < $15,000 or equitable remedy
• Common law writs.

County Court

• Ordinance violations, misdemeanors, traffic infractions
• Amount in controversy = $15,000 or less.

Question 36

Counties

FL Con Law (Local Gov)

Answer 36

1. Home Rule Power: Counties have power to create law through ordinances without asking legislature for permission.
2. Counties either chartered or unchartered:

• Chartered: Powers cannot conflict with general or special law.
• Non-Chartered: Limited in power; can only act if specifically authorized by a general or special law.

Question 37

Municipalities

FL Con Law (Local Gov)

Answer 37

1. = incorporated areas (cities, not counties)
2. May be created or abolished and their charters amended pursuant to general and special law.
3. Municipalities CANNOT act if:

• State law preemption (ex. gun regulation)
• Prohibited by municipality charter
• Violates the FL Constitution.

Question 38

Conflicts

FL Con Law (Local Gov)

Answer 38

1. If County ordinance conflicts with city ordinance:

• Non-chartered county = city always wins
• In a chartered county, the charter will contain a supremacy clause to settle the conflict between ordinances dealing with the provision of services (i.e. police, fire, etc.)
• In a chartered county, if the subject matter of the law is regulatory (i.e. curfew ordinance), the chartered county ordinance wins.

Question 39

School Districts

FL Con Law (Local Gov)

Answer 39

1. FL Constitution requires uniform system of free public ed.
2. All public schools through high school are tuition-free from pre-kindergarten through high school.
3. Each county has a separate school district, controlled and operated by an elected school board of five or more members.
4. State Board of Education: Contains seven-members appointed by the governor.
5. NOTE: Unconstitutional to use money from the state school to fund any other purpose than to support free public schools (cannot use state school funds to give vouchers for private schools.)

Question 40

Taxation

FL Con Law (Tax and Finance)

Answer 40

1. FL can only collect taxes pursuant to law.
2. No personal income tax nor estate tax (inheritance tax) in Florida.
3. Corporate tax? – YES
4. Sales tax – YES
5. No STATE-IMPOSED ad valorem taxes (taxes based on value) on real property or tangible personal property.
6. **Only counties, cities, school districts and “special” districts may impose ad valorem taxes on the value of real property and tangible personal property.
7. YES – Ad valorem taxes on intangible personal property (stocks, bonds, ex.)

Question 41

Ad Valorem Taxes: Requirements and Exemptions

FL Con Law (Tax and Finance)

Answer 41

Ad valorem taxes on real and personal property:

1. Must be at a uniform rate within each taxing unit.
2. Annual assessments required to determine just valuation of taxable property. (Just valuation = “Best and highest use of property”)
3. Millage Rate (mill): the taxable amount per $1000 of assessed valuation. Capped at 10-mill cap on valuation in a property’s lifetime.
4. Homestead property tax capped at 3% max. per year.

EXEMPTIONS: The FL Constitution exempts certain types of property from ad valorem taxation:

1. Educational, literary, scientific, religious, charitable, grandparents quarters, etc.
2. State, County, and City property used for a public purpose is exempt from ad valorem taxation.

Question 42

**Homestead Exemption**

FL Con Law (Tax and Finance)

Answer 42

FL Constitution recognizes two separate Homestead exemptions:

A. Homestead Tax Exemption:

1. Homesteads exempt up to $50,000 from taxation.
2. The first $25,000 applies to all property taxes; the additional up to $50,000 applies to the assessed value between $50,000 and $75,000.
3. Is subtracted from assessed valuation before the millage formula is applied.

Example:

Assessed Value: $65,000. The first $25,000 of value is exempt from all property tax, the next $25,000 of value is taxable, and the remaining $15,000 of value is exempt from non-school taxes.

B. Homestead Protection from Creditors:

1. Homestead = Property owned by a person, no more than one-half acre of contiguous land in a municipality (or 160 acres outside of municipality), permanent residence.
2. Prevents creditors from attaching a lien for judgment non the property.
3. Only allowed one homestead.
4. Value of property protected is unlimited.
5. Protection attaches immediately after established a permanent primary residence.
6. Extends to surviving spouse and/or descendants after death.
7. Applies to improvements made on property as well, regardless of price.

EXCEPTIONS: Does not protect against mortgage or tax liens, or mechanic liens related to the specific property.

EXCEPTIONS: May not protect a co-owner that does not reside there; judgment may attach to their interest in the property, which would force a judicial sale of the property.

Question 43

Termination of a Homestead

FL Con Law

Answer 43

1. By valid transfer, devise, or alienation off the property; or
2. Abandonment of the homestead. (NEED ALL THREE)
   
   1. Permanently giving up possession.
   2. Expressing an intent to no longer utilize the property as a homestead; and
   3. No intent to return within a reasonable time.

Question 44

Proceeds Upon Sale of Homestead

FL Con Law

Answer 44

Upon sale of homestead, the proceeds are protected equally as the real property for a reasonable time if:

1. The owner intends to reinvest in a new homestead
2. The proceeds are protected only to the extent they are used to purchase a new homestead.

Question 45

Restraints on Conveyance of Homestead

(6 listed)

FL Con Law

Answer 45

1. A married owner of a solely owned homestead CANNOT convey that interest by mortgage, sale, or gift without consent of the other spouse. Spouse can also not do the same, even if no ownership interest.
   
   1. Exception: Owner can transfer by deed the title to the homestead to an estate by the entirety (“we both own it now”) with his or her spouse.

Upon death of the owner. decedents homestead is devised as follows:

1. If survived by spouse and minor child: CANNOT DEVISE TO ANYONE UNDER WILL EXCEPT SPOUSE AND MINOR CHILD.
   
   1. Spouse takes life estate, remainder to minor child; OR
   2. IF SPOUSE ELECTS, spouse take ½ as tenant in common with minor child.
2. If decedent survived by spouse and adult children:
   
   1. Decedent may devise to spouse in fee simple. (100% OWNERSHIP BY SPOUSE)
   2. If not so devised, spouse gets life estate, remainder to decedents in being (spouse can all elect to take ½ as tenant in common with descendants in being).
3. If survived by minor child but no spouse:
   
   1. Devised to lineal descendants in fee simple.
4. If survived by adult child or heir with no spouse:
   
   1. If decedent devised via will to adult child or heir, they take per will.
   2. If not, apply intestacy statute.
5. If decedent not survived by spouse for child or heir, no restriction con devise.

Question 46

Limits on Attorney Contingency Fees

Answer 46

1. Medical Malpractice Cases: No more than 30% of the first $250,000 in damages received by claimant. No more than 10% of any damages received in excess of $250,000.
2. Limitation applies regardless of the number of defendants in the case, or whether the damages were received as the result of settlement or judgment.

Question 47

Single Subject Rule

Answer 47

1. A law can only contain a single subject.
2. The subject should be briefly summarized in the title and clearly indicate the subject matter of the legislation.
3. The court may delete the portion that violates the rule, and the remainder may be allowed to stand if the unconstitutional provision can be logically separated.

Question 48

Requirements for a Law to be Valid

Answer 48

1. Must be constitutional
2. Not vague or overbroad
3. One subject rule (subject clearly outlined in title)
4. Contain an enacting clause
5. Be properly signed
   
   1. Cannot conflict with any federal law. `

Question 49

Bonds (Requirements)

Answer 49

In order for a bond to be issued, it must:

1. Be for a public interest and not directly benefit a private entity.

Two Types of Bonds:

1. General Obligation Bonds: Requires a referendum by the people on whether if may issue. Things such as bridges, schools, etc. require no vote. Bonds that will mature in a year require no vote.
2. Revenue Bonds: Payable by the revenue generated by the project.

Question 50

Postnuptial Agreements and Homestead

Answer 50

A spouse’s homestead rights may be waived in a valid postnuptial agreement. See July 2010 Essay # 1 - FL Con Law

Question 51

Government vs. Private Entity

Answer 51

A state entity is one that closely affiliated with state and local governments through ownership and control.

A private entity is an entity such as a partnership or corporation which is not owned or controlled by a state or local government.

When a government entity gets so intertwined in private activities, the private entity may be considered a state actor.

NOTE: Must be more than mere planning or administrative.

NOTE: Simply leasing a property to a private entity is insufficient to result in the entity being regarded as a government entity.

Question 52

Right to Privacy

Answer 52

Fundamental right (strict scrutiny review)

Right to be free from government intrusion

Ex. Think essay with sheriff that subpoenaed medical records of someone who caused a car accident.