Florida Constitutional Law

Question 1

Florida regular v. special legislative sessions

Answer 1

Regular sessions are called annually and last for 60 days. Laws on any subject may be enacted in a regular session by majority vote. The legislature may extend the regular session or convene extra sessions by a three-fifths vote.

The governor may call special sessions by proclamation. Special sessions are limited to 20 days. The proclamation must state the purpose of the special session, and no other business may be acted upon without a two-thirds vote. There is no limit to the number of special sessions the governor can declare.

Question 2

Requirements for Florida laws

Answer 2

Laws in Florida must be not vague, not overbroad, related to the public welfare under the police powers, and must satisfy the constitutional requirements:

• (1) the law must only cover and address a single subject;
• (2) it must have an adequate title;
• (3) the text must be set out in the law; and
• (4) it must contain an enacting clause.

A law may not be amended by reference to its title only; appropriate portions of the original text must be set out in the amending act.

Question 3

Requirements to enact a law in Florida & Governor veto powers

Answer 3

Under the rules of the Florida Constitution, approval of a proposed Bill for enactment is normally by a simple majority.

A proposed Bill becomes law if the Governor does not veto it within 7 days, or 15 days if the legislature adjourns for 30 days or more.

In the event of a veto by the Governor, a two-thirds majority vote in each house overrides any veto to pass the Bill and enact the law.

Question 4

Florida access to courts

Answer 4

The Florida Constitution’s Declaration of Rights provides that the courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay. The Legislature is without power to abolish such a right without providing a reasonable alternative to protect the rights of the people of the State to redress for injuries, unless:

• (1) it can show an overpowering public necessity for the abolishment of such right, and
• (2) no alternative method of meeting such public necessity can be shown.

Florida’s access to courts also allows at least one appeal from a final order; any laws restricting the rights of appealable orders can be found to violate access to courts.

Question 5

What is the effective date for a law passed in Florida?

Answer 5

Under the Florida Constitution, a law takes effect 60 days after final adjournment of the legislative session in which it was enacted, or on a date fixed by law or joint resolution.

Question 6

Florida limits on contingency fees for medical malpractice recovery

Answer 6

The Florida Constitution effectively limits the contingency fee that a lawyer may charge a client in a medical liability case to 30% of the first $250,000 received in damages and 10% of any damages above $250,000.

Question 7

Florida equal protection

Answer 7

The Florida Constitution provides for equal protection of the law and only applies to state action. It uses the same standards of review as under the Federal Constitution. Equal protection is triggered where similarly situated persons are treated disparately.

Classifications that are not suspect or quasi-suspect are reviewed under a rational basis test: the challenger must prove that the state action is not rationally related to a legitimate state interest.

Question 8

Florida procedural due process

Answer 8

The Florida Constitution guarantees that no person may be deprived of property without due process of the law. Procedural due process in Florida extends to actions by private organizations exercising a quasi-public function. Thus, if an organization is performing public duties or acting on the government’s behalf in some way, it must follow the basic due process rules before taking away someone’s life, liberty, or property.

Due process requires that when one is deprived of property, there be notice and a meaningful hearing within a reasonable time.

Question 9

Florida takings clause & public nuisance exception

Answer 9

The Florida Constitution provides that private property shall not be taken by the state except for a public purpose, with a showing of necessity, and with full compensation of the property paid to the owner. Just compensation is the fair market value of the property. People other than the owner with interests in the property can also recover compensation.

Even if there has been no formal exercise of eminent domain, a property owner may have a cause of action for inverse condemnation if the state has effectively deprived the owner of the use of the property.

Under the “public nuisance” exception to the compensation requirement, no compensation need be paid and no due process need be given if the state, pursuant to the police power, destroys private property to protect public health, safety, other property, if a threat is sufficiently serious and immediate.

Question 10

Florida right to privacy

Answer 10

The Florida Constitution contains a guarantee of privacy; that every person has a right to be let alone and free from government intrusion in his or her private life. The state must show that any intrusion is furthering a compelling state interest and doing so by the least intrusive means. Privacy rights in Florida include:

• The right to terminate pregnancies
• The right to refuse medical treatment
• The right of parents to direct the upbringing of their children

Question 11

Florida search and seizure

Answer 11

The Florida constitution protects bodies, houses, papers, and effects against unreasonable searches and seizures; this provision is to be construed in conformity with the Fourth Amendment.

Searches without a warrant are presumptively unreasonable absent an exception. This protection applies to the home and to the curtilage, but not to open fields.

The remedy for an unreasonable search violation is the exclusion of evidence so obtained at a criminal proceeding.

Question 12

Florida Establishment Clause

Answer 12

Previously, both federal and state courts used the Lemon test to determine whether a law or government action was a forbidden establishment of religion under either the federal or state constitution. However, the U.S. Supreme Court has now said that Lemon should not be applied to determine whether a government act violates the U.S. Constitution. The Florida Supreme Court has not yet stated whether Lemon still applies for purposes of the state constitution.

Under the Lemon test, a law will be held valid if:

• (1) It has a primarily secular purpose
• (2) Its primary effect neither advances nor inhibits religion, and
• (3) The law does not produce excessive government entanglement with religion.

Question 13

Florida freedom of speech and the press

Answer 13

The Florida Constitution guarantees freedom of speech, and no state law may be passed abridging freedom of speech or of the press. There is a strong presumption in favor of public access to court proceedings and records. The free speech and press provisions of the Florida Constitution have generally been analyzed in the same manner as the First Amendment of the U.S. Constitution.

Prior restraints are subject to strict scrutiny; time, place, and manner restrictions are generally allowed as long as they are not content-based. Commercial speech is protected under intermediate scrutiny, and obscene speech is not protected.

Question 14

Florida right to work

Answer 14

Florida is a “right to work” state. The Florida Constitution protects the right to work by providing that no person may be denied a job because of membership or nonmembership in a labor union. Both public and private sector employees have the right to bargain collectively, but public employees do not have the right to strike.

The right to work and the right to bargain collectively are fundamental rights. Laws infringing on these rights are subject to strict scrutiny.

Question 15

Laws impairing the obligation of contract in Florida

Answer 15

This issue can arise when there’s a contract between individuals or a contract between an individual or company and the state. When considering whether there’s an impairment of contract, ask three questions:

• (1) Is there state action?
• (2) Is there an existing contract?
• (3) Does the regulation substantially impair the contract?

If all three of these apply, then the law will only be valid if it serves an important and legitimate government interest and is narrowly tailored to further that interest.

Question 16

Florida victims’ rights

Answer 16

Victims of crimes have a number of rights in Florida, including the right to:

• Due process
• Reasonable protection from the accused
• Prevent disclosure of confidential information
• Notice of public proceedings
• Be heard
• Confer with the prosecutor
• Be informed
• Return of property
• Restitution from convicted offenders for losses
• Promptness
• Be informed of these rights

However, victims’ rights cannot interfere with the constitutional rights of the accused.

Question 17

Florida limitations on excessive punishments and administrative penalties

Answer 17

The Florida Constitution prohibits excessive punishments. This includes prohibitions against excessive fines, cruel or unusual punishment, the forfeiture of estates, indefinite imprisonment, and unreasonable detention of witnesses.

Administrative agencies cannot punish by imprisonment or impose any penalty except as provided for by law. An administrative agency cannot award non-quantifiable common law damages (for example, damages for emotional distress) but may award quantifiable damages (for example, back pay and attorneys’ fees) when authorized by law.

Question 18

Florida right of access to public records and meetings

Answer 18

Under the Sunshine Law, public records and meetings must be open to the public and duly noticed. An exemption can be made if:

• The law states a necessity justifying the exemption and
• The law is no broader than necessary to accomplish the goal

One important example is the right to informational privacy. This applies to a public employee’s personnel files or an individual’s bar application.

Question 19

Florida substantive v. procedural rules & separation of powers

Answer 19

The powers of the state government are divided into the legislative, executive, and judicial branches. No one belonging to one branch can exercise any powers assigned to either of the other branches unless expressly provided for in the Florida Constitution. Encroachment occurs when one branch of government usurps the function of another.

The legislature has the power to make substantive procedural rules that prescribe duties and rights under the government. However, the Florida Supreme Court has the power to adopt rules for the practice and procedure in all courts. These include civil and criminal procedure, filing deadlines, and service of process rules.

Question 20

Florida non-delegation doctrine

Answer 20

When one branch of government assigns its responsibilities to another branch, it violates the non-delegation doctrine.

The legislature cannot delegate the power to make law or fundamental policy decisions. The executive agencies may make rules, but the statute must provide sufficient guidelines and standards so that the agencies are merely implementing policy set by the legislature.

Note: The legislature may not delegate to any agency the right to define the elements of a crime, to create criminal penalties, or to fashion equitable remedies.

Question 21

Florida general v. special laws

Answer 21

General laws apply uniformly statewide to all people or circumstances.

Special laws relate to or operate on specific persons or things or in a specific part of the state. For example, a law that only applies to some counties and not others is a special law. Special laws must be given prior public notice in the affected areas or be approved by referendum in the affected areas.

Question 22

Florida general laws of local application

Answer 22

A general law of local application is a law that uses a classification scheme–based upon population or some other criterion–to restrict its application to particular localities. A general law of local application is different from a special law because it does not require notice or referendum.

A valid general law of local application must have some nexus between the classification scheme and the purpose of the act. In other words, for a general law of local application to be constitutional, the subject matter of the law must be reasonably related to the the classification.

Question 23

Florida laws requiring statewide uniformity

Answer 23

The Florida Constitution requires statewide uniformity as to certain important subjects. Therefore, they have to be regulated through a general law and not through a special law or a general law of local application. These subjects include laws about:

• Elections
• Taxes
• Rules of evidence
• Punishments for crimes
• Petite juries
• Changes of venue
• Conditions to bring any civil or criminal proceeding
• Lien creation
• Divorce
• Adoption
• Regulation of occupations
• Private incorporation or the grant of privilege to a private corporation

Question 24

Florida homestead requirements, exceptions, and proceeds from homestead sale

Answer 24

Florida law protects people from being forced to sell their primary residence to satisfy most creditors. Homestead consists of contiguous residential property owned by a natural person (up to one-half acre within a municipality or 160 acres outside a municipality). The homestead rules also cover up to $1,000 in personal property. In probate, there is a $20,000 furnishings exemption. For protection to apply, the homestead must be established before the creditor obtains a judgment against the owner or levies on the property.

Proceeds from the sale of a homestead retain homestead status if the owner has a good faith intent to reinvest in another homestead within a reasonable amount of time. Only the amount of proceeds reinvested are protected.

The homestead protection does not apply to taxes and assessments against the property, mortgages on the property, or construction or mechanics liens.

Question 25

Florida homestead abandonment

Answer 25

Homestead protection may be forfeited if the homestead is abandoned. Whether the owner has abandoned is a question of fact, and the creditor bears the burden of proof. Abandonment typically occurs if the owner leases the home out to another for more than one year.

Note: There is an exception for members of the military who lease their homes out for more than a year. They may lease the property while on deployment and retain homestead status so long as they intend to keep the homestead as a primary residence after deployment.

Question 26

Restraints on conveyance and devise of homestead property

Answer 26

Homestead property may not be conveyed by one spouse without the other’s consent and may be freely devised only if there are no surviving minor children or spouse. This protection may be waived in an antenuptial agreement.

If a deceased was married but the sole owner of the homestead and dies with no will, the homestead passes intestate. The surviving spouse gets a life estate with a vested remainder to the lineal descendants. The surviving spouse may also elect to take a one-half interest in the homestead property, being held as a tenancy in common with the lineal descendants.

If the homestead is improperly devised and the decedent is survived by a spouse and one or more descendants, the homestead passes as though the owner died intestate.

Question 27

Chartered v. non-chartered counties & hierarchy of governments

Answer 27

A county is a political subdivision of the state. The Florida Constitution provides that the counties may be either chartered or non-chartered. A chartered county has all powers that are not inconsistent with general and special laws or the Florida and U.S. Constitutions. A non-chartered county isn’t very powerful, but may enact ordinances as provided by general or special law.

Hierarchy rules provide that:

• City laws prevail over non-chartered county laws
• Chartered counties prevail over cities
• State beats county
• Florida Constitution beats state statutes
• Federal laws beat state laws

Question 28

Florida municipalities and limits on municipal power

Answer 28

Municipalities are established by legislative acts. They have home rule powers, meaning they can govern themselves by their own ordinances. Municipalities perform traditional government functions to protect the health, welfare, safety, and morals of their citizens. Where there is municipal home rule, there are some instances in which municipalities cannot act:

• State preemption
• Chartered county preemption
• Forbidden by county or city charter
• Constitutional limits

Question 29

Florida limits on ad valorem taxes

Answer 29

The Florida Constitution limits the state’s right to tax. Ad valorem taxes are assessed based on the value of the property. Only local governments may levy ad valorem taxes on real estate or tangible personal property other than vehicles, boats, airplanes, and motor homes. The state may not.

Question 30

Florida homestead tax exemption

Answer 30

The homestead tax exemption decreases the property value by $50,000. It also limits yearly increases in assessments to no more than 3% of the previous year.

Counties or municipalities may grant an additional $50,000 exemption to persons age 65 or older with incomes of $20,000 or less.

Question 31

Florida bond requirements

Answer 31

The state can borrow money by issuing bonds, which act as IOUs for certain purposes. To be valid, a bond must have a public purpose. This has been interpreted broadly to include even anything that promotes tourism.

The bond must also pay for a capital project, such as roads, airports, or buildings. The state cannot borrow to pay ordinary operating expenses. Incidental private benefits are permissible.

Finally, validation is required to issue a bond, meaning a court must make sure that the bond is properly issued.

Question 32

Revenue bonds v. general obligation bonds

Answer 32

A revenue bond is paid off using revenue from the underlying project. Bondholders may not look to funds raised from general taxation or other non-designated sources for repayment. Both state and local governments can issue revenue bonds. In either case, no referendum is required.

General obligation bonds pledge the full faith and credit of the government, and they are paid off through taxes (that is, the general taxing power is used to repay the loan). The state government may issue these bonds but they must be approved by the electors. Local governments can issue these bonds without a referendum if the bonds will be paid off within 12 months. If it will take longer, a referendum is required.

Question 33

What are the primary duties of the Florida Governor?

Answer 33

The governor’s primary duties are to ensure that the laws are faithfully executed, to commission all officers of the state and counties, and to transact all necessary business with officers of the government.

Question 34

How does sovereign immunity work in Florida? What is the standard to hold the state liable?

Answer 34

By statute, the state has waived sovereign immunity, and suits may be brought against state and local governments and their divisions. However, damages are capped at $200,000 per person and $300,000 per incident.

Traditionally, the state may be liable for negligence in its operational decisions but not planning decisions. An operational function is when the government is doing something that private entities often do. If a private entity did it and was negligent, it could be sued, so the state can be sued as well. But if the state is engaging in a planning function—that is, a policy-making function—then it cannot be sued because it has not consented to that type of suit.

For the state to be sued, there must be an underlying duty to the individual. However, where no underlying duty exists, if the government entity undertakes to perform a particular task, it must do so with reasonable care.