Florida Con Law

Question 1

Limitation on Powers

Answer 1

The Florida Constitution is a limitation on state powers. It DOES NOT GRANT any powers.

Question 2

Self-Executing

Answer 2

Some provisions are self-executing and require no legislative action to put their terms into effects; others require legislative action by their own terms.

Question 3

Equal Protection

Answer 3

Similar to the U.S. Constitution. (Strict Scrutiny)
This is applied whenever a person/people are being discriminated based on a suspect classification.

*In Florida, Equal Protection only applies to State Action.
*Discrimination by private persons or entities is NOT Constitutionally Prohibited.
(Only Government entities are not allowed to discriminate.)

Question 4

What are the two standards of review in Florida?

Answer 4

1. Strict Scrutiny
2. Rational Basis

*There is a very small group of issues that apply to intermediate scrutiny.

Question 5

Rights

Answer 5

All persons have inalienable rights including, but not limited to,

1. the right to enjoy and defend life and liberty;
2. to pursue happiness;
3. to be rewarded for industry;
4. acquire, possess, and protect property.

*These rights are fundamental (Strict Scrutiny)

Question 6

Discrimination

Answer 6

The Florida Constitution expressly forbids discrimination based on

1. Race
2. Religion
3. National Origin
4. Physical Disability
   * Strict Scrutiny applies

Question 7

Freedom of Speech

Answer 7

No state shall make a law abridging the freedom of Freedom of Speech is a fundamental right.

The government may restrict the

1. Time
2. Place
3. Manner

• Prior restraint-Government can’t prevent press from printing an article.
• Commercial speech is protected to the extent that it is true and not misleading.

Question 8

Right to Work*

Answer 8

*No person may be denied a job because of membership or non-membership in a labor union.

Both public and private sector employees have the right to collectively bargain. PUBLIC employees do not have the right to strike.

Question 9

Due Process

Answer 9

No person may be deprived of life, liberty or property without due process of law.

Double Jeopardy- No person may be twice put in jeopardy for the same offense.

Self Incrimination- No person shall be compelled in any criminal matter to be a witness against himself. The right to remain silent extends to proceedings that are penal in nature.

Question 10

Searches and Seizures

Answer 10

• Reasonable Suspicion is REQUIRED to make a STOP.
• Curtilage- if something is found within the curtilage of the home, that is not a valid search.

People have a right to be secure in their persons, houses, papers, and effects against unreasonable interception of private communications by any means.

Warrants may only be granted upon proof of probable cause.

Question 11

Excessive Punishments

Answer 11

The Florida Constitution prohibits

1. Excessive Fines
2. Cruel or unusual punishment
3. Forfeiture of estate
4. Indefinite imprisonment
5. Unreasonable detention of witnesses

Question 12

Limitations on Administrative Action

Answer 12

No administrative agency can punish by imprisonment. Administrative penalties are limited to those authorized by law. Violations would be considered encroachment.

Question 13

Access To Courts

Answer 13

(any hindrance from bringing action to court).
The Fl. Constitution provides that justice shall be given to all citizens without denial or delay. The courts are open to every person for redress of any injury. Article V(Art. 5) guarantees the right for every person to get at least one appeal.

Exceptions (Reasonable Alternative)
if legislature abolishes a cause of action, a reasonable alternative must be provided UNLESS.

1. the legislature can demonstrate a COMPELLING PUBLIC NECESSITY for abolition of the right
2. NO ALTERNATIVE METHOD of meeting such a public necessity can be established.

*The Kluger Doctrine- may be used to challenge legislative attempts to abrogate causes of action and challenge statutes of limitations and statutes of repose.

Question 14

Right to Privacy

Answer 14

There is a right to privacy, which is a fundamental right.

If the government is interfering with the right to privacy, strict scrutiny is used.
The government has the burden to show that there is a COMPELLING STATE INTEREST and the LEAST RESTRICTIVE MEANS are used to protect that interest.

^Abortion is a fundamental right, but the government does not have to financially support it.

Question 15

Access to Public Records

Answer 15

Every person has a right to inspect and copy any document made in the course of government business, unless deemed confidential.

Public Meetings- all meetings of a state or local govt. public body at which official acts are taken, or at which public business is transacted or discussed, must be open and the public must be given NOTICE of them.

Exemptions

1. PUBLIC NECESSITY JUSTIFYING THE EXEMPTION
2. NO BROADER THAN IS NECESSARY to accomplish a state purpose.

Question 16

Separation of Powers

Answer 16

The Fl. Constitution expressly separates powers of the government into 3 branches, Executive, Legislature, and Judicial. No branch is allowed to perform the duties of another branch.

Encroachment- when one branch performs a duty of another branch. There are 6 types.

Legislature gives UNFETTERED DISCRETION to any- is a violation of the Non-delegation Doctrine of the Judicial Power. (also encroachment)

Question 17

6 Types of Encroachment

Answer 17

1. Executive-Judicial
2. Executive- Legislature
3. Legislature-Exec.
4. Legislature- Jud.
5. Judicial- Exec.
6. Judicial- Legis.

Question 18

Requirements for Laws

Answer 18

A. A law Cannot be Vague. Must be clearly worded so the average person of common intelligence will understand.
B. Can’t be Overbroad. - Can’t prohibit constitutionally protected activities.
C. Must be reasonably relationship to the health, safety, morals, or welfare of the people.
-Must be made in line with the constitution.

Question 19

Procedure Requirements for Laws

Answer 19

A. Must be Limit to Single Subject. No logrolling and adding two different subjects for unless there is a LOGICAL Connection.
***(Window Period- once a law becomes law, you can’t attack single subject but other violations)
B. Must have adequate title, and give adequate notice.
C. Text must be Set Out, (changed language x’ed out and new language underlined.)
C. Must have Enacting Clause stating “Be It Enacted by the Legislature of the State of Florida.” (session law not valid if it doesn’t say this)

Question 20

Categories of Law

Answer 20

1. General Laws- applies uniformly throughout the state. (Need a majority vote of both house)
2. Special Laws- Requires NOTICE and REFERENDUM Applies to a specific person, place or thing. (30 days notice or a vote of electors). Can’t be in any of the 20 prohibited categories.
3. General Laws of Local Application- Majority vote of electors. Population Based Act. (37,100 pop.-38,500).
   a. Must be a reasonable relationship between subject matter of act and population ranges. (Must show that counties of those sizes violate law more)
   b. Must be open ended (cant be based on a particular census) (narrow population range- violation. trying to apply a special law under a GLLA.)
   c. Must not be in any of the 20 prohibited areas.

Question 21

Judicial Procedure

Answer 21

The following items and procedures must be uniform:

1. RULES OF EVIDENCE in any court
2. PUNISHMENT FOR CRIMES
3. Petit juries
4. Change of civil or criminal venue
5. Conditions precedent to bringing any civil or criminal proceedings, of limitations of time therefore
6. Refund of money legally paid.
7. LIENS BASED ON PRIVATE CONTRACTS

Question 22

Appropriation Laws

Answer 22

Single-Subject Limitation. (2 part test Firestone test)

a. if a provision of an appropriation bill changes existing law on anything or than appropriations.
b. a qualification or restriction must rationally relate to purpose of appropriation. (can’t legislate morality)

Question 23

Effective Date of Law

Answer 23

60 days after the adjournment of legislative session.

Question 24

Executive Veto

Answer 24

Governor has 7 days starting the day after it is presented to him, to sign or veto.

• May be extended to 15 days if there was a recess or no date or resumption given.
• Government can only veto the entire bill, but if it is a general appropriations bill, the Governor has line item veto power.

Question 25

Court System

Answer 25

Judicial Power vests in
1. Supreme Court
2. District Courts of Appeal
3. Circuit Courts
4. County Courts
No other courts may be established with the exception that the legislature establish by general law a civil traffic hearing system.

Supreme Court of FL can not hear any case it wants to hear, UNLESS these mandatory areas.

1. Death Penalty was given
2. Bond Validation Hearings
3. Rate Decisions of Public Service Commission
4. Decisions of DCA (district court of appeals) declaring a statute or provision invalid.

Question 26

Encroachment

Answer 26

When one branch of government usurps the function of another branch

Question 27

Delegation

Answer 27

The legislature cannot delegate the power to make law or fundamental policy decision.

Question 28

Local Government

Answer 28

1. Counties
2. Municipalities (Charter and Non-Charter)
3. Sel Duty???
4. Special Out???
5. Charter- smart, has its own charter. if it wants to do it, it can as long as it doesnt conflict with state law. (has power of self-government as long as it is not inconsistent with state law)
6. Non-Charter- dumb, has to look to the government for its power. (power to self govern as long as it is provided by state government) *cities win every time against noncharters,
7. State Preemption - As a matter of supremacy, state laws preempt conflicting county laws (charter or non-charter)
8. County- Municipality Conflict - In a nonchartered county, the municipality always prevails in a conflict. If the county is chartered, the Florida Constitution requires the charter to have a supremacy clause to settle conflicts between ordinances.

????1. Traditional/Municipal Purpose
????2. Prohibited by General Law, Special Law, State court, County Charter.

Municipal purpose- anything for health, safety and welfare of citizenry.

Question 29

Preemption Pyramid

Answer 29

A. US Court
B. Federal Courts
C. State Courts
D. State
E. County
F. City

Question 30

Noncharter County is Silent…

Answer 30

-Noncharter passes an ordinance prohibiting something
-City ordinance allows it.
= City Wins

*Noncharter service or regulatory, City Wins.

Question 31

Charter County vs. City…

Answer 31

Fl. Constitution requires charter counties should have a supremacy clause stating who prevails on certain issues in conflict.

• If Charter county is silent, it must be determined if the provision is REGULATORY (County Preemption wins)
• if provision is a SERVICE, (argue it either way.)

Question 32

State Taxation

Answer 32

Local gov. CAN ONLY impose
-Ad Valorem Taxes on Real Property, UNLESS Legislature allows otherwise.

State government CAN impose

• Sales tax (range 6-7.5%)
• Corporate Income Tax
• Estate Tax
• Intangible Tax- stocks and bounds

Question 33

Limitations on Taxation

Answer 33

The Florida Constitution limits the right of the state to tax.
Ad Valorem Taxes- Local gov. CAN ONLY impose
-Ad Valorem Taxes on Real Property or TANGIBLE personal property, UNLESS Legislature allows otherwise.

No government in Florida may impose ad valorem taxes on motor vehicles, boats, airplanes, trailers, mobile homes, etc.

• Each gov’t >limited to 10 mill each ( 1mil = 1/1000th of a cent)
• Rate must be uniform throughout the district.
• All property must be valued at just valuation (FMV)
• Agricultural property is not valued at just valuation (valued at lower rate)

Caps on Assessment
Homestead:?
Non-Homestead: ?

Question 34

Income Tax

Answer 34

There is no personal income tax in Florida by mandate of the constitution. However, there is a corporate income tax, LIMITED TO 5% of NET INCOME unless authorized by 3/5 vote of members of both houses of the legislature.

Question 35

Leaseholds

Answer 35

Even if land is leased by another party, a landowner is still taxed as though he possessed the property in fee simple. A private party leasing government-owned property may have to pay a property tax on the lease interest if the property is used for commercial or proprietary purposes. There is no tax if the lessee is performing a governmental function.

Question 36

No Double Taxation

Answer 36

Property located in municipalities cannot be subject to taxation for services rendered by the county exclusively for the benefit of residents of the unincorporated area.

Question 37

Municipal Property

Answer 37

Property owned by a municipality and used exclusively for municipal or public purposes is exempt from taxation. Vacant land is considered a public purpose.

*The exemption is not applied to property leased to a profit-making venture.

Question 38

Philanthropic Property

Answer 38

The Fl. Constitution recognizes traditional exemptions to property predominantly for educational, literary, scientific, religious, or CHARITABLE PURPOSES.
*Leased property is not entitled to philanthropic exemption.

Question 39

Homestead Tax Exemption

Answer 39

A person who owns title to real property and maintains a permanent residence on the property is entitled a homestead exemption of up to $50,000 (25k for the first 25k in assessed valuation, and for all levies other than school district levies, 25k for the assessed valuation between $50k and $75k).

Question 40

Exemptions from Ad Valorem Taxation

Answer 40

1. Municipal Property
2. Philanthropic Property
3. Homestead Tax

Question 41

Governments Generate Revenue by

Answer 41

1. Taxes
2. Fees
3. Special Assessment
4. Bonds

Question 42

Fees

Answer 42

Fee money can only be used for what it is charged for.

A local gov may not raise the revenue it needs from ad valorem taxation. Local governments may use fees if…
1. the fees must be per capita
2. fees must be used for purpose raised for
(bonds are inappropriate).

Question 43

Revenue Bonds

Answer 43

Revenue Bonds are not backed by the taxing power of the issuing government, but are payable solely from funds derived from sources other than state tax revenues, rents, or fees paid from state tax revenues. These bonds must be for a PUBLIC PURPOSE.

State Government- The pledge the revenue generated from the projects (tolls)
Local Government- Used to build capital projects like airports and statutorily authorized private plants.

*Don’t Need Referendum ( majority vote of the people)

Question 44

General Obligation Bonds

Answer 44

General obligation bonds are secured by pledge of the revenue derived from the taxation power of the issuing governing entity.
-Pledges Credit of taxing power (ad valorem)

State Gov- Bonds that pledge the full faith and credit of the state may generally be issued only

1. for CAPITAL Projects
2. and only after a VOTE OF ELECTORS

Local Gov- counties, school districts, etc. may issue this bonds to refinance capital projects.
- if the bonds are to be payable from ad valorem taxes
-and will mature more than 12 months after issuance
= approval by a vote of the electors is required.

Question 45

Pledging Credit

Answer 45

Neither the state nor any subdivision of the state may become a joint owner with or stockholder of, or give, lend, or use its taxing power or credit to aid any corporation, association, partnership, or person. This does not prevent

1. the investment of public trust funds in a private entity
2. the investment of other public funds in obligations of, or incurred by, the US gov’t.
3. the issuance of revenue bonds by local gov’t fir capital projects or industrial or manufacturing plants, as long as the revenue bonds are payable solely from revenue derived from the sale, operation, or leasing of the projects, or
4. local governments from jointly owning an electrical energy generating or transmission facility with a private entity.

• a gov’t entity may not borrow money from the public to benefit private companies UNLESS…
  for a PARAMOUNT PUBLIC PURPOSED is needed. (public is the majority of the benefit).

Question 46

Homestead Exemption from Forced Sale

Answer 46

The Fla. Const. protects “homestead” property from creditors. It may not be devised if there is a spouse or minor child remaining.

-No force sale of home
The exceptions are
1. Taxes and assessments
2. Mechanic's lien- an unpaid repair, purchase, or improvement on property.
3. Proper Adjudication 

Homestead limitation
A. 160 acres outside a municipality
B. 1/2 acre inside a municipality

*Homestead exemption inures to Spouse or dependent heirs.

Question 47

Abandonment

Answer 47

A property may no longer be deemed a homestead in cases of abandonment. The owner must show NO INTENT TO RETURN.

Question 48

Proceeds

Answer 48

If a homestead is sold, the proceeds still have a homestead exemption status, as long as the owner has a GOOD FAITH intent to reinvest the proceeds in another homestead within a REASONABLE TIME.

• If the new homestead is of a lower value than last one, the money saved is subject to creditor attachment.
• if the new homestead is an increased value, it is all still protected homestead.

Question 49

Eminent Domain (TAKINGS)

Answer 49

Eminent Domain is the sovereign power of the state to take private property for public purposes upon a reasonable necessity and upon full compensation.

1. Power to
2. Take private property
3. for Public Purpose
4. for Full Compensation

Question 50

Inverse Condemnation

Answer 50

Even if there has been no formal exercise of eminent domain, the courts have recognized that when the state acts in a manner that effectively DEPRIVES THE OWNER OF USE OF THE PROPERTY, a cause of action by the property owner arises in “Inverse Condemnation”