Florida Constitutional Law Flashcards
How is the constitution constured
- as a statute would be construed. Intent of framers and adopters is considered and words are given plain meaning.
- some provisions are self executing, others require legislative action (‘as provided by law”)
Before an eminent domain proceeding may be brought, what has to happen
Condemning authority must:
- attempt to negotiate in good faith with property owner
- provide property owner with written offer, and if requested, copy of the appraisal on which it was based; and 3. attempt to reach an agreement on compensation
Inverse condemnation
Even if there has been no formal exercise of eminent domain, when the state acts in a manner that effectively deprives the owner of use of his property.
eg. noise from airport
What is full compensation?
FMV plus attorneys fees
Leasehold, easements, personal property, franchises, and contracts are compensable property interests
Is the question of what constitutes full compensation a question for the judge or the jury?
Jury -but its a statutory right, not a constitutional one
When is there a statutory right to compensation even if the gov’t action is not a taking
When the gov’t action inordinately burdens real property
Is a police power regulation a taking
Generally no, unless it goes too far
No when there is an immediate threat of harm
Is the question of whether there has been a taking for the jury or decided as a matter of law
Question of law for the judge.
Election
After convention, the proposed amendment is put on the ballot
- file proposal with custodian 90 days before election; published 2x in newspaper;
- majority vote of people.
Proposal by Constitutional Convention
- File petition for constitutional convention w/ custodian
- Signed by 15% of total votes cast in last presidential election, from at least ½ of congressional districts
- At the next election, a question is placed on ballot: -“Shall a constitutional convention be held”
Proposal by Initiative
- Proposal must cover one subject only
- Petition Signed by 8% of total votes cast in last presidential election, from at least ½ of congressional districts
- legislature must provide statement of probable financial impact
Proposal by Constitution Revision Commission
- Meets every 20 years
- comprised or 37 people
- Files with custodian of records the proposal at least 180 days before election
- reports directly to the people, not the legislature
Proposal by legislature
- 3/5 of each house vote to amend
- governor has no veto power
Five ways to amend/revise constitution
- Proposal by legislature
- Proposal by revision commission
- Proposal by Initiative
- Proposal by constitutional convention
- Amendment/Revision Election
Public purpose
Must benefit state in tangible and forseeable way
What is eminent domain?
Power of state to take private property for public purposes
Is legislature permitted to delegate its power of eminent domain?
Yes. Typically, public utilities are granted this power.
True or false: Legislature cannot reduce county/municipality authority to raise revenues
True
o Local Bonds
§ Payable from ad valorem taxes
§ May only be issued:
o To finance/refinance capital projects approved by voters; or
o To refund outstanding bonds at lower interest
o Revenue Bonds
§ May be issued w/o vote of electors
§ Payable solely from funds other than state tax revenues
§ Typically, will dedicate certain revenues to pay the bonds
o State Bonds
§ May be issued for state fixed capital outlay projects (only by approval of voters) § Total outstanding principal may not exceed 50% of total revenues for preceding 2 years § Issued w/o vote to finance: o Air/water pollution control o Solid waste disposal facilities o Water facilities o State roads o Bridge construction
May a county or municipality be bound by a general law requiring it to spend funds?
No unless it is an important state interest
Intangible tax
state may levy an ad valorem tax on intangible property. It cannot exceed to mills.
• Pari-Mutuel Taxes
o If allocated to counties, must be done equally
• Income Tax
o Personal - none (allowed up to 5%)
o Corporate - 5.5%
o Timing of Assessment of Property
§ Made based on value of property on January 1
o Valuation of Property
§ In General
o “Just value” of property = FMV
§ Exceptions - must be valued at less than just value
o Ag land
o Working waterfront properties
o Historical properties
o Improvements made to homestead property to provide living quarter for grandparents “granny flats”
• Non-Homestead Residential Real Property
o Change may not exceed 10% of the prior year’s assessment
§ Other Homestead Exemptions
o 65+ Years Old + Income Less than $20,000
• Up to $50,000
o 65+ Years Old + 25 Years as Residence + Income Less than $20,000 + Property value < $250,000 at time of application:
• Exemption = assessed value
o 65+ Years Old + Disabled Veteran + Honorably Discharged
• Discount based on veteran’s permanent, service-connected disability
o SS of Military Veteran or First Responder (died in line of duty)
• Complete exemption
o Currently Serving Military Personnel
• Add’l exemption equal to % of taxable value of homestead property
o Homestead Exemptions
§ Requirements
o (1) Property must be real property located in FL; and
o (2) Must be either permanent residence of owner or dependent
§ Types of Qualifying Ownership Interests
o Legal or equitable title
o Need not be fee simple
§ Exemption Amount
o $25,000, plus
o Another $25,000 (dollar-for-dollar after $50k up to $75k)
o MAXIMUM = $50,000
Exemptions from ad valorem tax
o Municipal Property - owned by municipality for public purpose
o Community and Economic Development - ordinance approved by votes for tax exemptions for new/expanding businesses
o Historic Preservation - may grant
o Tangible Personal Property - $25,000 exemption
o Homestead Exemptions
What is the cap on tax of homestead property?
Capped annually at the lower of 3% or the percent change in the consumer price index
What is a mill
$1 per $1,000 of value
Ad Valorem Taxes (on real estate or tangible personal property)
§ By local gov’t only (no state ad valorem tax)
§ Not on mobile homes, vehicles, boats, planes, trailers, etc.
-county, municipality and school district may EACH impose tax up to the constitutional limit of 10 mills
True or false: Florida constitution limits the right of state to tax
True
Limitation on reelection
8 consecutive years by end of current term of office (except governor)
Time of elections
General: First Tuesday after the first Monday in November of even-numbered years
Special: held as provided by law
o Disqualification of electors
§ Convicted of a felony
§ Adjudicated mentally incompetent
o Electors
§ 18 years old + permanent resident + registered to vote
o Regulation of Elections
§ MUST be by direct and secret vote
§ Determined by plurality of votes cast
Transfer of powers
Individual functions or powers of a municipality may be transferred to the county. This is a common way for a municipality to alleviate budget problems. Sometimes, residents vote, other times its done by contract.
Consolidation
The gov’t of a county and the gov’t of a municipality may be consolidated into a single government. They obtain all powers of both the municipality and the county, but do not obtain an increased tax base
Merger of two municipalities
General or special law may provide for merger of two municipalities
Can municipal ordinances conflict with state law?
No
Municipalities
- creatures of the state
- may be established or abolished and their charters amended pursuant to general or special law.
- they act to protect the health, welfare, safety and morals of the citizens
What is the unincorporated area of a county
Territory in a county not incorporated into a municipality
Sale of alcoholic beverages
Each county may determine whether alcohol can be sold within the county, and once permitted, may onyl regulate hours of sale and zoning req’ts. State regulates everything else.
County-Municipality conflict in ordinances
In a chartered county, the charter must contain a supremacy clause to settle conflicts between ordinances
Non-charter county - municipality always prevails
Preemption by state law
State law preempts conflicting county laws
Noncharter county
May enact ordinances AS PROVIDED by general or special law
Charter County
Broadens scope of local gov’t power
- May have allpowers not inconsistent with general law or special law and may enact ordinances not inconsistent with general law
- Dade county charter supersedes special law.
Two types of counties
chartered and unchartered
What is a county
A political subdivision of the state.
67 in Florida
What does it mean that municipalities and counties have home rule powers?
They govern themselves by their own ordinances. They overlap geographically.
Can the legislature delegate power to make law or fundamental policy decisions?
No. But the legislature via statute may allow executive agencies to make rules - but it must provide sufficient guidelines and standards so that agencies are merely implementing policy determined by legislature, not making policy themselves.
Can’t let agency decide elements of crime or punishment
Encroachment
When one branch of gov’t usurps the function of another branch, it is said to encroach.
Example:
A statute says that in the event of its violation, an injunction shall issue. But issuance of injunction is a judicial determination. It should say injunction is a remedy.
Separation of Powers between the branches
Fla constitution expressly incorporates the doctrine of separation of powers.
