Memorandum of Law Binder - City of Miami

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MASTER CASE LAW BINDER RE:

MEMORANDUM OF LAW RE: OPTIONS OF THE CITY

COMMISSION WITH RESPECT TO REQUEST OF MAYORTOMAS REGALADO FOR LEGAL DEFENSE PAID FOR BY THE CITY

NO. DESCRIPTION DATE

A. Memorandum of Law re: Options of the City Commission with

Respect to Request of Mayor Tomas Regalado for Legal Defense

Paid for by the City

02/13/2013

CITED CASE LAW/AUTHORITY

1. City of Fort Walton Beach v. Grant , 544 So.2d 230, 237 (Fla. 1st DCA1989)

2. City of Winter Haven v. A. M. Klemm & Son, 132 Fla. 334, 181 So. 153 (1938)

3. Christiansburg Garment Co. v. Equal Employment Opportunity Commission,434 U.S. 412, 416-17 (1978)

4. Ellison v. Reid , 397 So.2d 352 (Fla. 1st DCA 1981)

5. Lomelo v. City of Sunrise, 423 So.2d 974 (Fla. 4th DCA 1982)

6. Miccosukee Tribe of Indians of Florida v. South Florida Water Management Dist ,

48 So. 3d 811, 822 (Fla. 2010)

7. Miller v. Carbonelli, 80 So.2d 909 (Fla.1955)

8. Nuzum v. Valdes, 407 So.2d 277 (Fla. 3d DCA 1981)

9. Peck v. Spencer , 26 Fla. 23, 7 So. 642 (1890)

10. State v. Division of Bond Finance, 495 So. 2d 183, 184 (Fla. 1986)

11. State v. Miami Beach Redevelopment Agency, 392 So. 2d 875, 885 (Fla. 1980), citing Bannon v. Port of Palm Beach District , 246 So.2d 737, 741 (Fla.1971)

12. Thornber v. City of Ft. Walton Beach, 568 So. 2d 914, 919 n.6 (Fla. 1990)

13. Williams v. City of Miami, 42 So.2d 582 (Fla.1949)

14. 18 U.S.C. § 1962

15. 42 U.S.C. § 1983

16. Fla. Stat. §111.07

17. Fla. Stat. §166.021

18. Fla. Stat. §772.103

19. Florida Constitution, Article VII, Section 10



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MEMORANDUM OF LAW

TO: City of Miami City Commission

FROM: Mitchell W. Berger, Esq.

Paul S. Figg, Esq.

DATE: February 12, 2013

RE: Options of the City Commission with respect to request of Mayor Tomas Regaladofor legal defense paid for by the City

Questions Presented:

1. May the City pay for the legal defense of the Mayor related to the civil lawsuit filed

against him?

2. May the City pay for the Mayor’s legal defense, as requested, on an ongoing basis?

Brief Answers:

1. Yes, given the allegations in the lawsuit concerning the capacity in which the Mayor

acted.

2. Yes, but the City Commission should first consider whether such course of action serves

a public purpose.

Relevant Facts:

On December 3, 2012, a civil lawsuit ( Michelle Spence-Jones v. State Attorney Katherine

Fernandez Rundle, et al., Case No. 12-cv-24253-XXXX, United States District Court for the

Southern District of Florida) was filed and Mayor Tomas Regalado (the “Mayor”) was named as

a defendant. The lawsuit alleges counts against the Mayor for Civil Rights Conspiracy and

Retaliatory Inducement to Prosecute pursuant to 42 U.S.C. §1983, Civil RICO pursuant to 18

U.S.C. §1962, Florida RICO pursuant to §772.103, Florida Statutes, and Florida Common

Law/Intentional Infliction of Emotional Distress. See Complaint. With respect to all counts,1

the Plaintiff alleges: “Defendant Tomas Regalado is the Mayor of the City of Miami, acting inthe capacity of agent, servant, and employee of the City and within the scope of his employment

as such. He is being sued in his personal capacity.” See ¶23, Complaint. In addition, with

respect to each count alleged against the Mayor pursuant to 42 U.S.C. §1983, the Plaintiff alleges

1Each count incorporates all prior allegations. The counts are alleged subsequent to paragraph 23.



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that the Mayor “acted under color of law.” See, e.g., ¶620, Complaint. It should also be noted

that with respect to each count alleged against the Mayor under 42 U.S.C. §1983, it is also

alleged that the Mayor acted “with knowing, willful, wanton, grossly reckless, unlawful,

unreasonable, unconscionable, and flagrant disregard of Plaintiff’s rights, privileges, welfare,

and well-being…” See, e.g., ¶¶623, Complaint.

The Mayor has requested that the City pay for his legal defense in the lawsuit on an

ongoing basis.

Attachments:

1. Complaint filed in the matter of Michelle Spence-Jones v. State Attorney Katherine

Fernandez Rundle, et al., Case No. 12-cv-24253-XXXX;

2. Resolutions2

a. Alternate A

b. Alternate B - Sections 3-7 of Alternate B are optional, and the City Commission

may elect to include, not include them or include others.

Executive Summary:

The City may pay for the Mayor’s legal defense pursuant to Section 111.07, Florida

Statutes. In fact, Section 111.07 requires the City to reimburse him for reasonable attorneys’

fees and costs incurred in his legal defense, if:

• the alleged injuries are the result of any act or omission of action;

o arising out of and in the scope of the Mayor’s employment or function; or

o of the Mayor under color of law; and

• provided that the Mayor did not act in bad faith, with malicious purpose, or in a

manner exhibiting wanton and willful disregard of human rights, safety, or property.

Furthermore, in addition to the requirements of Section 111.07, at common law the

Mayor is entitled to be reimbursed or indemnified by the City for his defense in litigation arising

2On February 5, 2012, we were asked to provide a resolution regarding the Mayor’s request before the agenda

deadline. In providing that resolution, we made clear that it had not been finally reviewed and was preliminary. The

resolution provided at that time envisioned incorporating the findings of fact and conclusions of law of a

Memorandum of Law that would be provided by Berger Singerman LLP. That preliminary resolution was incorrect.

In conjunction with providing this Memorandum of Law to the City, we are providing alternate resolutions that may

be used by the City, depending upon the City Commission’s ultimate decision on the Mayor’s request. THE

PURPOSE OF THIS MEMORANDUM OF LAW IS NOT TO MAKE FINDINGS OF FACT AND

CONCLUSIONS OF LAW FOR INCORPORATION INTO ANY CITY RESOLUTION.



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from the performance of his official duties while, so long as such reimbursement serves a public

purpose.

The Mayor has requested payment for such legal defense on an ongoing basis. The City

is under no obligation to pay for the Mayor’s defense on an ongoing basis, however. It is a

policy decision, and the City may simply deny the request without explanation.

It should be made clear that the City Commission’s options are not limited to simply

approving or denying the Mayor’s request. There are many options in between that the City

Commission can propose to the Mayor. For example, the City could:

• Offer another attorney of the City’s choosing that it is willing to pay on an ongoing

basis;

• Offer to guaranty payment of the Mayor’s legal defense in the event that the Mayor

cannot pay if he becomes eligible for reimbursement pursuant to law based upon the

outcome of the litigation;

• Offer to pay the attorney of the Mayor’s choosing on an ongoing basis, beginning at a

specific point in the litigation, provided that certain positions are taken or facts are

established. These positions and/or facts might be established through the filing of an

answer and affirmative defenses by the Mayor, the filing of any counterclaims by the

Mayor, the filing of all responsive pleadings and counterclaims in the case, and/or the

conduct of specific depositions;• Seek offers from attorneys willing to take on the Mayor’s legal defense with the

understanding that the City will pay the Mayor’s attorneys’ fees and costs if the court

finds in his favor, and offer those willing to do so to the Mayor; or

• Seek offers from attorneys willing to take on the Mayor’s legal defense under a flat

fee arrangement, which would be paid by the City, and offer those willing to do so to

the Mayor; or

• Seek offers from attorneys willing to take on the Mayor’s legal defense pro bono, and

offer those willing to do so to the Mayor.

The foregoing list of options is not exhaustive. The point of these examples is that the City

Commission’s choice is not an “either/or” choice.



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If the City elects to pay for such defense on an ongoing basis, it should consider taking

the following steps:3

• reserving any and all rights to seek reimbursement from the Mayor if the Plaintiff

prevails, at any time in the litigation, and the court makes any determination that the

Mayor:

o acted in bad faith, with malicious purpose, or in a manner exhibiting wanton and

willful disregard of human rights, safety, or property; or

o acted in a manner that would make payment for his legal defense in the lawsuit in

contravention of public policy; and

• reserving any and all rights to seek reimbursement from the Mayor if, at any time in the

litigation, the court makes any determination that the Mayor acted outside the scope of

his or her employment or function;

• reserving any and all rights to decide in the future not to pay for his legal defense on an

ongoing basis, for any reason, including or by example limited by certain conditions,

such as these suggested below;

• reserving any and all rights not to pay any invoice for attorneys’ fees and costs, based on

developments in the ongoing litigation

• reserving any and all rights not to pay any invoice for attorneys’ fees and costs, based on

its determination that the invoiced attorneys’ fees and costs are not reasonable because of the rates charged, time expended, work performed or any other reason bearing upon the

reasonableness of attorneys’ fees and costs.

The City Commission should, consistent with best practices, clearly understand that its

decision to pay for the legal defense of the Mayor on an ongoing basis in the specific

circumstances of this case must serve a public purpose, and that the City Commission makes

specific public purpose findings based thereon.

It is further recommended that the City Commission take such other steps necessary to

ensure that public monies are not spent unnecessarily.

3We have not researched any particular requirements or prohibitions on the City’s ability to include any of these

conditions in any pledge to pay for the Mayor’s legal defense on an ongoing basis that may be found in the City’s

Charter, Code of Ordinances or in general law.



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Analysis:

Section 111.07, Florida Statutes, both authorizes and requires a municipality to pay for

the legal defense of its officers, subject to certain conditions set forth below. The Mayor has

requested paid legal defense on an ongoing basis and, if the City Commission approves payment

in such manner, it appears that the Mayor’s engagement of his attorney will be made in reliance

on the City’s actions with respect to his request. Based on this reliance, the City will be found to

have entered into a contractual or quasi-contractual relationship with respect to the Mayor’s legal

defense. In other words, the City’s decision, however conditioned, will constitute a pledge to

pay for his attorneys’ fees and costs on an ongoing bases that is enforceable.

As a result of the potential obligation of the City to pay for the Mayor’s legal defense by

agreeing to pay on an ongoing basis, the City’s decision with respect to the Mayor’s request is

subject to Article VII, Section 10 of the Florida Constitution. City of Winter Haven v. A. M.

Klemm & Son, 132 Fla. 334, 181 So. 153 (1938). Article VII, Section 10 prohibits government

entities from pledging their credit to “any corporation, association, partnership or person…” In

this circumstance, pledging of credit means the imposition of some new financial liability upon

the City which in effect results in the creation of a City debt for the benefit of a person.

Miccosukee Tribe of Indians of Florida v. South Florida Water Management Dist., 48 So. 3d

811, 822 (Fla. 2010).

The purpose of Article VII, Section 10 is to “protect public funds and resources from

being exploited in assisting or promoting private ventures when the public would be at most only

incidentally benefited.” State v. Miami Beach Redevelopment Agency, 397 So. 2d 875, 885 (Fla.

1980), citing Bannon v. Port of Palm Beach District , 246 So.2d 737, 741 (Fla.1971). The basic

test for determining whether an expenditure of public funds violates state constitutional provision

prohibiting using state's taxing power or credit to aid a private entity or person is whether such

expenditure is made to accomplish a public purpose. Miccosukee Tribe of Indians of Florida, 48

So. 3d at 822. It is immaterial that the primary beneficiary of the pledge be a private party, if

the public interest, even though indirect, is present and sufficiently strong. Id . at 823.

Section 111.07 was based upon the common law rule providing for the paid legal defense

of public officials acting in their official capacity, but that rule required that such expenditure be

for a public purpose. The Legislature, in adopting Section 111.07 and providing the conditions

for paid legal defense, implicitly determined that those conditions serve a public purpose. Even



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though the Legislature’s implicit public purpose determination in Section 111.07 might be

sufficient to sustain a challenge to the constitutionality of the City’s decision to pay for the

Mayor’s legal defense on an ongoing basis, there is no judicial precedent scrutinizing Section

111.07 under Article VII, Section 10. The City’s reliance upon Section 111.07 does not

necessarily satisfy its independent obligations to spend public money for a public purpose under

Article VII, Section 10. §166.021(3)(b), Fla. Stat. As a result, the analysis of the Mayor’s

request begins but does not end with Section 111.07. The best practice, when confronted by

such lack of precedent, is to make public purpose findings independently. The City’s findings

are a legislative act of the City Commission. When the City Commission makes legislative

findings of fact with regard to public purpose, these findings of fact are presumed correct and

will be upheld unless clearly erroneous. State v. Division of Bond Finance, 495 So. 2d 183, 184

(Fla. 1986).

Section 111.07, Florida Statutes, provides in pertinent part:

Any agency of the state, or any county, municipality, or political subdivision of the state, is authorized to provide an attorney to defend any civil action arising

from a complaint for damages or injury suffered as a result of any act or omission

of action of any of its officers, employees, or agents for an act or omission arising

out of and in the scope of his or her employment or function, unless, in the case

of a tort action, the officer, employee, or agent acted in bad faith, with

malicious purpose, or in a manner exhibiting wanton and willful disregard of

human rights, safety, or property. Defense of such civil action includes, but isnot limited to, any civil rights lawsuit seeking relief personally against the officer,

employee, or agent for an act or omission under color of state law, custom, or

usage, wherein it is alleged that such officer, employee, or agent has deprivedanother person of rights secured under the Federal Constitution or laws….

(underline and bold added). The Plaintiff has alleged the Mayor acted either (i) “within the

scope of his employment;” or (ii) “under color of law.”4

Based upon the allegations of the

Complaint regarding the capacity in which the Mayor acted, the City may provide an attorney to

defend him pursuant to Section 111.07.

The Plaintiff has also alleged that the Mayor acted “with knowing, willful, wanton,

grossly reckless, unlawful, unreasonable, unconscionable, and flagrant disregard of Plaintiff’s

rights, privileges, welfare, and well-being….” While this general allegation does not trace the

exception clause of Section 111.07 (set forth in bold above), it does allege that the Mayor acted

4These allegations were necessary elements of the specific causes of action pled by the Plaintiff.



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“with…willful…disregard of [Plaintiff’s] rights.” If the Plaintiff proves other elements of a

cause of action and that the Mayor acted with willful disregard of Plaintiff’s rights,5

then the

Mayor’s conduct may fall outside the scope of the City’s authority to pay for his legal defense

under Section 111.07.

While the foregoing provisions of Section 111.07 provide the framework for the

eligibility of a public official for legal defense paid for by the City, it does not address the timing

or the conditions under which the City may provide such defense. The Mayor has requested that

the City pay for his legal defense on an ongoing basis.

Section 111.07 also provides guidance on the time and extent of payment for the Mayor’s

defense:

…However, any attorney's fees paid from public funds for any officer, employee,

or agent who is found to be personally liable by virtue of acting outside the scopeof his or her employment, or was acting in bad faith, with malicious purpose, or ina manner exhibiting wanton and willful disregard of human rights, safety, or

property, may be recovered by the state, county, municipality, or political

subdivision in a civil action against such officer, employee, or agent…

(underline added). The underlined language points to a finding by the trier of fact in civil

litigation. In that context, the provision quoted above makes clear that the Legislature intended

that a municipality may choose whether to pay for the defense up front or while the litigation is

ongoing, because the authority to seek recovery through civil action would be unnecessary if the

public official could only seek reimbursement for such legal defense.

Section 111.07 was originally adopted in 1972, and has gone through several iterations.

See Thornber v. City of Ft. Walton Beach, 568 So. 2d 914, 919 n.6 (Fla. 1990). While Section

111.07 provides an additional mechanism for the paid legal defense of public officials, it is not

the exclusive mechanism. At common law, public officials are entitled to legal representation at

public expense to defend themselves against litigation arising from the performance of their

official duties while serving a public purpose. Id . at 917. The government entity from which

paid legal representation was sought could find the public purpose or the public official could goto court and compel the City to reimburse him if he showed that the reimbursement served a

public purpose. The Supreme Court has held that Section 111.07 did not abrogate the common

law rule, but it did recognize the rule. Id . at 918-19; see also City of Fort Walton Beach v.

5It is assumed that the Mayor intends to deny these allegations, and that the Plaintiff will be required to prove them

in court.



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Grant , 544 So.2d 230, 237 (Fla. 1st

DCA1989). The well-established purpose of the common

law rule is to avoid the chilling effect that a denial of representation might have on public

officials in performing their duties properly and diligently. Thornber , 568 So. 2d at 917, citing

Nuzum v. Valdes, 407 So.2d 277 (Fla. 3d DCA 1981). The purpose behind the common law rule

almost certainly constitutes a valid public purpose, and therefore as a general principal, the

substantive circumstances under which Section 111.07 authorizes/requires the expenditure of

public funds constitute a public purpose.

It cannot be concluded necessarily that the Legislature considered the public purpose

behind the payment for legal defense on an ongoing basis, as permissible under Section 111.07.

As previously discussed, Section 111.07 has not been challenged under Article VII, Section 10,

facially or as applied. Furthermore, under the common law rule, public officials were entitled to

reimbursement of or indemnification for attorneys’ fees and costs incurred by them in connection

with lawsuits arising from the performance of their official duties, as opposed to payment on an

ongoing basis. See Thornber , 568 So. 2d 914, 916-17, citing Miller v. Carbonelli, 80 So.2d 909

(Fla.1955); Williams v. City of Miami, 42 So.2d 582 (Fla.1949); Peck v. Spencer , 26 Fla. 23, 7

So. 642 (1890); Lomelo v. City of Sunrise, 423 So.2d 974 (Fla. 4th DCA 1982), review

dismissed, 431 So.2d 988 (Fla.1983); Ellison v. Reid , 397 So.2d 352 (Fla. 1st DCA 1981).

To put the City in the best position with respect to a challenge to a decision to pay for the

Mayor’s legal defense on an ongoing basis, should the City decide to take this action, the best

practice is for the City Commission to consider the ways in which payment in such manner

serves a public purpose, and decide to agree to or deny the Mayor’s request based on thorough

debate and a considered finding. For example, in discussing factors that favor denial of the

Mayor’s request, the City Commission should consider one of their central roles as members of

the City’s governing board – they are entrusted with making prudent decisions with public

money. From a practical standpoint, if the City agrees to pay for the Mayor’s legal defense on an

ongoing basis and the Plaintiff ends up proving her case and specific facts that take the Mayor’s

conduct outside of the scope of Section 111.07 or the common law rule, the Mayor would be

required to reimburse the City for the public money spent on his defense. But the City’s ability

to collect such expenditures is unknown. The City could spend substantial public money to

defend the Mayor, and the facts may bear out that the Plaintiff was right. In such case, the City

could be in the unfortunate position of having spent public money on a person determined to



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have abused his public office, while at the same time having no recourse to recover such

expenditures.

There may be other reasons the City Commission may find that a public purpose is

served by reimbursement of reasonable attorneys’ fees and costs incurred and not paid legal on

an ongoing basis. Another example might be that City Commissioners have personal knowledge

of events that may bear upon the likelihood that the City would have to seek repayment of such

legal defense costs in the future.

On the other hand, there may be factors generally and specific to this case the City

Commission may find a public purpose is served by approval of the Mayor’s request. Generally,

if a public official’s ability to investigate, debate freely or cast votes regarding issues of public

interest or concern, or do anything else related to the official’s political office can be chilled,

frustrated or otherwise impacted out of fear of having to incur attorneys’ fees and costs as a

result of one’s conduct or inaction, then public service may not be worth the price. The chilling

effect that is the purpose for the common law rule on the paid legal defense of public officials

might support approving any request for paid legal defense on an ongoing basis. Even though

public officials have the right to be reimbursed for reasonable attorneys’ fees and costs incurred

in lawsuits against them personally, the need to front those attorneys’ fees and costs certainly

could contribute to a chilling effect, regardless of whether the Plaintiff is another public official

or simply a member of the public. This chilling effect could discourage less well-off persons

from seeking public office, which could narrow the perspectives of those making policy

decisions for the City.

In this specific case, the allegations against the Mayor are made by a sitting City

Commissioner, not simply a member of the public. Such a dispute between members of the

same governmental power structure could be used as a tool to chill the full expression of

opposing viewpoints on the same dais or even to force those opposing viewpoints out of office.

Economic disparity between such public officials and the financial realities of the judicial

process could allow wealthier members to use lawsuits against other public officials with lesser

means as a political proxy war.

Already, a public official’s likelihood of being sued pursuant to 42 U.S.C. §1983, which

contains prevailing party attorneys’ fees for the plaintiff, but not the defendant (except in the



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case of frivolous claims)6, puts public officials at an economic disadvantage. Such lawsuits are

frequently filed against public officials. The availability of prevailing party attorneys’ fees for

plaintiffs makes it substantially more likely that plaintiffs in such actions against public officials

are able to obtain representation pursuant to a contingency fee arrangements which require no

payment of attorneys’ fees and costs up front. Paid legal defense on an ongoing basis would

serve to eliminate that disadvantage and encourage public service in the face of lawsuits brought

against public officials acting in their official capacity, including claims brought under 42 U.S.C.

§1983.

The foregoing discussion is not intended to be exhaustive. The factors relevant to and the

determination of public purpose are legislative in nature and must be made by the City

Commission. The City Commission should weigh factors it considers important to the public,

and make a decision that serves a public purpose as it determines. That decision could be the

policy of the City going forward for requests considering the basis for the City Commission’s

public purpose determination, or it could be highly specific to the circumstances of the Mayor’s

request.

6 Christiansburg Garment Co. v. Equal Employment Opportunity Commission, 434 U.S. 412, 416-17 (1978).



UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF FLORIDA

MICHELLE SPENCE-JONES,

Plaintiff,-against-

STATE ATTORNEY KATHERINEFERNANDEZ RUNDLE, MAY OR TOMÁSREGALADO, ASSISTANT STATEATTORNEY WILLIAM RICHARD SCRUGGS,and INVESTIGATOR ROBERT FIELDER,

Defendants.

No. 12 Civ. ____

COMPLAINT

Case 1:12-cv-24253-XXXX Document 1 Entered on FLSD Docket 12/03/2012 Page 1 of 114



ii

TABLE OF CONTENTS

PRELIMINARY STATEMENT ........................................................................................... 1

JURISDICTION AND VENUE ............................................................................................ 4

JURY DEMAND ................................................................................................................... 5

PARTIES ............................................................................................................................... 5

STATEMENT OF FACTS .................................................................................................... 6

Spence-J ones Is Elected Commissioner; Popular with Her Constituents,Unpopular with Regalado........................................................................................... 6

The Office of the State Attorney: Rundle for Over 19 Years....................................... 8

Regalado and Rundle: A Team.................................................................................... 8

Scruggs’ History of Troubled Prosecutions.............................................................. 12

The Costa Rica Fiasco: Scruggs Is Criminally Charged................................. 12

The Waco Fiasco: Scruggs Is “Clearly Negligent” ......................................... 13

The Gaston Smith Fiasco: “Very Unprofessional” Withholding of Evidence........................................................................................................... 14

The Berry/Smith Fiasco: More Withholding of Evidence from the Defense.... 15

Defendants Prepare Their Scheme to Arrest Spence-Jones and Kick Her off theCommission............................................................................................................... 16

Spence-Jones is Elected, Sworn-In, and Promptly Arrested and Suspended............ 19

Spence-Jones is Elected.................................................................................... 19

Governor Crist................................................................................................. 20

Regalado Prepares For Spence-J ones’ Arrest, and Tries To Destroy aPhotograph....................................................................................................... 21

Rundle Times Spence-Jones’ Arrest Right After She Is Sworn-In.................... 22

Rundle Defames Spence-J ones.................................................................................. 23




iii

Crist Suspends Spence-Jones (Suspension #1).......................................................... 25

Rundle and Regalado Attempt to Manipulate the Composition of theCommission............................................................................................................... 26

The Importance of Waiting Until Spence-Jones Was Sworn In BeforeArresting and Suspending Her ......................................................................... 26

A Snag: No Quorum to Replace Spence-J ones; a Ten-Day DeadlineExpires.............................................................................................................. 27

Rundle Tries to Manipulate the Commission................................................... 29

Regalado Tries to Manipulate the Commission............................................... 29

The Carey-Shuler Charge: Baseless and Based on Fabricated Evidence................ 31

Carey-Shuler Authorizes $50,000 to Karym.................................................... 32

The SAO Defendants Hide the Evidence from Carey-Shuler........................... 35

Carey-Shuler’s Sworn Statement: More Lies from the SAO............................ 37

The False Fielder Arrest Affidavit............................................................................. 38

The SAO’s False Carey-Shuler Information............................................................. 40

The SAO Defendants Attempt to Hide the Evidence from Spence-Jones.................. 41

Spence-Jones is Re-Elected; Crist Suspends Her Again (Suspension #2) ................ 41

A Second Race Against Time; District 5 Loses Its Vote Again; “Magic City”For Regalado............................................................................................................. 43

Spence-J ones and Her Constituents Sue to Regain the Commission Seat................ 46

A Third Race Against Time; the SAO Indicts; Crist Suspends Spence-JonesAgain (Suspension #3)............................................................................................... 47

The Codina Case: Another Case, Another Fraud..................................................... 49

The Renaming of Southeast Second Ave........................................................... 50

A City of Miami Benefit in the Lyric Theater ................................................... 51

The SAO Defendants Intimidate and Falsely Accuse Codina.......................... 53




iv

The SAO Defendants Lie to and Manipulate Codina....................................... 54

Codina Is Duped, by the SAO........................................................................... 56

Defendants Defame, Arrest, and Attempt to Humiliate Spence-Jones ..................... 58

Scruggs’ Personal Vendetta Against Raben; Rundle: “Boys Will Be Boys” .......... 60

Raben Deposes Carey-Shuler; Carey-Shuler Learns She Was Deceived; theSAO Defendants Continue to Pursue the Fraudulent Case..................................... 61

Codina Also Learns He Was Deceived; the Extraordinary Codina Deposition;Scruggs Doubles-Down on His Lies........................................................................ 62

The Trial: the Codina Case Is Exposed to the World as a Fraud ............................ 65

Regalado-Rundle’s Back-Door Meeting; Machinations to Extend the Carey-Shuler Case.............................................................................................................. 67

Rundle/Scruggs Defame Spence-Jones and Raben in an Outrageous “CloseoutMemo,” then Send the Defamatory Memo to the Miami Press Corps ..................... 70

Carey-Shuler and Codina Identify the True Source of the Fraud: the SAO.............75

Two Years in the Wilderness: A Public Servant in Ruins........................................ 75

AS AND FOR A FIRST CLAIM FOR RELIEF 42 U.S.C. § 1983, Fabrication/Concealment of Evidence in Carey-Shuler Case (Against SAO Defendants) ..................... 77

AS AND FOR A SECOND CLAIM FOR RELIEF 42 U.S.C. § 1983, Fabrication/Concealment of Evidence in Codina Case (Against SAO Defendants) .............................. 79

AS AND FOR A THIRD CLAIM FOR RELIEF 42 U.S.C. § 1983, False Arrest forCarey-Shuler Case (Against SAO Defendants) ................................................................... 80

AS AND FOR A FOURTH CLAIM FOR RELIEF 42 U.S.C. § 1983, MaliciousProsecution and Seizure for Carey-Shuler Case (Against SAO Defenants) ........................ 81

AS AND FOR A FIFTH CLAIM FOR RELIEF 42 U.S.C. § 1983, MaliciousProsecution and Seizure for Codina Case (Against SAO Defendants) ............................... 82

AS AND FOR A SIXTH CLAIM FOR RELIEF 42 U.S.C. § 1983, First AmendmentRetaliation (Against SAO Defendants)................................................................................ 83




v

AS AND FOR A SEVENTH CLAIM FOR RELIEF 42 U.S.C. § 1983, CivilRights Conspiracy (Against all Defendants) ....................................................................... 84

AS AND FOR AN EIGHTH CLAIM FOR RELIEF 42 U.S.C. § 1983, SupervisoryLiability (Against Rundle) ................................................................................................... 87

AS AND FOR A NINTH CLAIM FOR RELIEF Civil RICO, 18 U.S.C. §1962 (c) & (d) (Against all Defendants) .............................................................................. 88

The Enterprise.......................................................................................................... 88

Pattern of Racketeering Activity – Mail and Wire Fraud........................................ 90

Relationship of Pattern of Racketeering Activity to Enterprise............................... 92

AS AND FOR A TENTH CLAIM FOR RELIEF 42 U.S.C. § 1983, Retaliatory

Inducement to Prosecute (Against Regalado) ...................................................................... 93

AS AND FOR AN ELEVENTH CLAIM FOR RELIEF 42 U.S.C. § 1983, DueProcess/Stigma Plus (Against SAO Defendants)................................................................. 95

AS AND FOR A TWELFTH CLAIM FOR RELIEF Florida RICO, Title 45,§ 772.103(3) and (4) (Against all Defendants) .................................................................... 97

The Enterprise.......................................................................................................... 97

Pattern of Racketeering Activity – Tampering with a Witness .............................. 100

Pattern of Racketeering Activity – Tampering with or fabricating physicalevidence.................................................................................................................. 101

Relationship of Pattern of Racketeering Activity to Enterprise............................. 101

AS AND FOR A THIRTEENTH CLAIM FOR RELIEF Florida Common Law/FalseArrest for Carey-Shuler Case (Against SAO Defendants) ................................................ 102

AS AND FOR A FOURTEENTH CLAIM FOR RELIEF Florida Common Law/Malicious Prosecution for Carey-Shuler Case (Against SAO Defendants) ...................... 103

AS AND FOR A FIFTEENTH CLAIM FOR RELIEF Florida Common Law/Malicious Prosecution for Codina Case (Against SAO Defendants) ................................ 104

AS AND FOR A SIXTEENTH CLAIM FOR RELIEF Florida Common Law/Intentional Infliction of Emotional Distress ...................................................................... 105

PRAYER FOR RELIEF .....................................................................................................106




Plaintiff Michelle Spence-J ones (“Spence-J ones” or “Plaintiff”), by her attorneys

Emery Celli Brinckerhoff & Abady LLP and Ray Taseff, P.A., for her Complaint alleges as

follows:

PRELIMINARY STATEMENT

1. This case arises from a shocking, nefarious scheme by Miami Mayor

Tomás Regalado and State Attorney Katherine Fernandez Rundle to remove Commissioner

Michelle Spence-Jones from her elected position as Miami City Commissioner. Serving as the

investigatory, police, and prosecutorial arm of the Mayor, Rundle, aided by assistant prosecutor

Richard Scruggs and investigator Robert Fielder, manufactured false evidence, hid and withheld

exculpatory evidence, intimidated and manipulated witnesses, defamed Spence-Jones, and

repeatedly attempted to manipulate the political process, in a corrupt attempt to remove, arrest,

imprison, and forever ruin a dedicated Miami public servant. And when the scheme unraveled,

when the witnesses realized they had been lied to, when the exonerative evidence could no

longer be suppressed, Rundle and her team covered up their own wrongdoing, recklessly and

falsely accusing Spence-Jones and her well-respected defense counsel of yet more crimes, to the

entire world.1

2. The primary players in this fraudulent enterprise were, first, the Mayor of

Miami, Tomás Regalado, Spence-Jones’ political rival, who was unable to control Spence-Jones’

critical vote on the powerful Miami City Commission. Second, State Attorney Katherine

Fernandez Rundle, Regalado’s friend and political ally, who shared a web of cozy connections

and dealings with the Mayor. Rundle took a personal interest in the downfall of Spence-Jones,

repeatedly defaming her in public, overseeing her investigations and arrests, and manipulating

the criminal process and interfering in internal Commission politics to keep Spence-Jones off the

1 A summary timeline of the scheme is attached as Exhibit A to the Complaint.




2

Commission. In the notorious assistant prosecutor Richard Scruggs, Rundle found the perfect

right-hand man to destroy Spence-Jones. Scruggs had been criminally charged by a foreign

government, found “clearly negligent” by the U.S. Department of Justice for his handling of the

Waco investigation, criticized by Florida courts for “very unprofessional” conduct and

withholding of evidence from the defense, and even carried a personal vendetta against Spence-

Jones’ defense lawyer. In their efforts, Rundle and Scruggs were aided by their investigator,

Robert Fielder.

3. This civil rights action seeks damages for defendants’ conspiracy, a

conspiracy that involved, inter alia, manufacturing evidence and concocting baseless corruption

charges in two separate cases: the Armando Codina case, and the Barbara Carey-Shuler case.

4. In the Codina case, the Office of the State Attorney for Miami-Dade

County (SAO) told Codina that Spence-Jones was a thief, had stolen his money, and had induced

him to contribute to a non-existent charity as part of a non-existent charity event. Each and

every statement was a deliberate lie. There was a charity, there was a charity event, the money

was deposited with one of the most well-respected foundations in Florida, and Spence-Jones

stole nothing. But it took years to unravel these lies, years while Spence-Jones remained falsely

accused of bribery and grand theft, years while she remained off the Commission. When Codina

finally learned about the SAO’s deception, he publicly pronounced the prosecutor a “serial liar.”

5. In the Carey-Shuler case, the SAO had definitive proof—including

handwritten drafts—that Miami Dade County Commissioner Carey-Shuler had authorized

payment to a company affiliated with Spence-Jones for a neighborhood rebuilding project.

Instead, the SAO hid the documents and falsely told Carey-Shuler that Spence-Jones had forged

her name and stolen from Miami-Dade County, too. It took years to unravel these lies, years of




3

persistent, dogged investigation by Spence-Jones’ lawyer, Peter Raben, years while Spence-

Jones remained falsely accused of grand theft, years while she remained off the Commission. As

Shuler’s lawyer later said after defendants’ scheme unraveled, the SAO “lied to her [Shuler],”

too.

6. Defendants perpetrated quite a scheme: two contrived political corruption

cases, both relying on a star witness the SAO Defendants lied to and manipulated, both who later

learned that prosecutors tricked and defrauded them. But the goal in both cases was the same:

remove Spence-Jones from the Commission, and ruin her as a potent political force and rival of

the Mayor.

7. What was the ultimate result of this fraudulent scheme? In the Codina

case, after an over two-week trial, a jury acquitted Spence-Jones in fewer than 90 minutes. In the

Carey-Shuler case, even after Carey-Shuler learned the truth and testified under oath there was

no theft, defendants dragged the case for over a year, in a Regalado-induced bid to keep Spence-

Jones off the Commission for as long as possible. Then the SAO tried to extort Spence-Jones to

make a public admission that the prosecution was “fair,” as a condition of dismissing the

fraudulent case.

8. When defendants were finally forced to dismiss the non-existent Carey-

Shuler case, they lied again, in the now-infamous “Closeout Memo” accusing Spence-Jones and

Raben of forging and planting the Carey-Shuler drafts into an “empty” file—another defamatory

attempt to ruin Spence-Jones’ good name and cover up defendants’ own fraudulent scheme.

9. Even by the sometimes sordid standards of Miami politics, the Rundle-

Regalado conspiracy stands out for its brazenness. As a result of defendants’ prosecution-laden

brand of power politics, Spence-Jones’ life was virtually destroyed. She lost her liberty, her job,




4

her reputation. Her constituents lost a powerful voice for the people of Miami. For nearly two

long, lonely years, Michelle Spence-Jones fought to reclaim her liberty and her good name.

Now, it is time the people who perpetrated this outrageous injustice finally be held to account.

10. Spence-Jones brings this civil rights action seeking damages for

defendants’ violations of her rights, privileges, and immunities under the United States

Constitution, the Civil Rights Act of 1871, 42 U.S.C. § 1983, the Racketeer Influenced and

Corrupt Organizations Act, 18 U.S.C. §§ 1961-1968 (“RICO”) and its Florida counterpart, the

Civil Remedies for Criminal Practices Act (“Florida RICO”), Title 45 of the Florida Code, §

772.101-19, and Florida common law.

J URISDICTION AND VENUE

11. This action arises under the First, Fourth and Fourteenth Amendments to

the United States Constitution, 42 U.S.C. §§ 1983 and 1988, 18 U.S.C. §§ 1961-1968, Title 45 of

the Florida Code, § 772.104, and Florida common law.

12. The jurisdiction of this Court is predicated upon 28 U.S.C. §§ 1331,

1343(a) (3) and (4), 1367(a), and the doctrine of supplemental jurisdiction.

13. A substantial part of the acts complained of occurred in the Southern

District of Florida, and venue is lodged in this Court pursuant to 28 U.S.C. § 1391(b).

14. On February 14, 2012, pursuant to Chapter 768, Florida Statutes, Plaintiff

served by certified mail a written Notice of Intent to File a Claim upon the Office of the State

Attorney, 1350 N.W. 12 Ave, Miami, Florida and the Department of Financial Services, 200 East

Gaines Street, Tallahassee, Florida.

15. At least six months have elapsed since the service of the notice of claim,

and adjustment or payment of the claim has been neglected or refused.




5

J URY DEMAND

16. Plaintiff demands a trial by jury.

PARTIES

17. Plaintiff Michelle Spence-J ones is a resident of Miami, Florida and the

City Commissioner representing District 5 in Miami.

18. Defendant Katherine Fernandez Rundle was at all times relevant hereto

the State Attorney for Miami-Dade County. She personally led and directed the fraudulent

investigations, arrests, seizures, detention, imprisonment, and prosecutions of Spence-Jones. She

led frequent meetings and conference calls concerning the Spence-J ones conspiracy. On

information and belief, a number of phone calls and emails between Rundle, Scruggs and others

advancing the conspiracy crossed state lines. She is being sued in her personal capacity.

19. Defendant William Richard Scruggs was at all times relevant hereto the

Special Assistant to the State Attorney for Public Corruption, at the Office of the State Attorney

for Miami-Dade County. On information and belief, Scruggs reported directly to Rundle. He

directed and participated in the fraudulent investigations, arrests, seizures, detention,

imprisonment, and prosecutions of Spence-Jones. He is being sued in his personal capacity.

20. Throughout the Shuler and the Codina cases set forth below, Rundle and

Scruggs not only directed the prosecutions. They ran and directed the criminal investigations,

arrests, seizures, and imprisonment of Spence-Jones, serving the traditional functions and role of

the police. Rundle and/or Scruggs interviewed witnesses and took witness statements, gathered,

manipulated, and hid evidence, and ordered Spence-Jones’ arrests, seizures, detention, and

imprisonment.

21. Defendant Robert Fielder was at all times relevant hereto a State Attorney

Investigator, employed by the Office of the State Attorney for Miami-Dade County and acting




6

within the scope of his employment as such. Prior to joining the State Attorney’s Office, he was

a police officer with the City of Miami Police Department for twenty-nine years. Fielder was the

lead investigator in both cases against Spence-Jones. He worked at the speed, pleasure, and

direction of Rundle, Scruggs and the SAO. He participated in and furthered the fraudulent

investigations, arrests, seizures, detention, imprisonment, and prosecutions of Spence-Jones. He

is being sued in his personal capacity.

22. Rundle, Scruggs and Fielder will be collectively referred to herein as the

“SAO Defendants.”

23.

Defendant Tomás Regalado is the Mayor of the City of Miami, acting in

the capacity of agent, servant, and employee of the City and within the scope of his employment

as such. He is being sued in his personal capacity.

STATEMENT OF FACTS

Spence-J ones Is Elected Commissioner; Popular with Her Constituents, Unpopular with Regalado

24. In 2005, Spence-Jones was elected Commissioner for District 5 in the City

of Miami.

25. In that election, Spence-Jones defeated Richard Dunn in a run-off vote.

26. The Miami City Commission (“Commission”) is a powerful and important

legislative body in Miami. The Commission can pass ordinances and adopt regulations.

27. There are only five commissioners in Miami, each serving one of five

districts in the City of Miami.

28. Commissioners are re-elected every four years.

29. District 5 is largely African-American, and one of the poorest districts in

the City of Miami.




7

30. Spence-Jones, who is also African-American, was a powerful voice for her

community. She quickly developed a reputation for independence and loyalty to her

constituents, often fighting powerful, moneyed, and entrenched interests for the sake of what she

believed to be the good of her District and the City.

31. From late 2001 through 2009, Manny Diaz was the Mayor of Miami.

During part of his tenure, and before Spence-Jones was elected a Commissioner, she worked for

Mayor Diaz as a city employee.

32. When Spence-Jones became Commissioner in 2005, she and Mayor Diaz

were political allies.

33. For example, Spence-Jones and Diaz worked together on low-income

housing and economic development projects in Spence-Jones’ district and on parks initiatives.

34. Regalado also served as a City Commissioner during the 2005-2009

period.

35. Regalado came from a somewhat different school of politics than Spence-

Jones, a school based on friendship, patronage, and political favors.

36. Regalado and Diaz became political enemies, and fought frequently during

Regalado’s tenure on the Commission.

37. Regalado was known as “Dr. No” on the dais: if Diaz and Spence-Jones

favored a Commission resolution or ordinance, Regalado was likely to vote “no.”

38. The Commission had a delicate balance of power during the 2005-2009

period. A majority of three out of five votes was necessary to carry an item, and Spence-Jones

was usually the swing vote on major issues before the Commission. Commissioners Angel

Gonzalez and Joe Sanchez were usually on the side of Mayor Diaz; Regalado and Marc Sarnoff




8

(elected in November 2006) were usually on the other side. With Spence-Jones’ swing vote,

Mayor Diaz’ initiatives usually carried the day.

39. In short, Spence-Jones was often the key vote on the Commission, on

important issues such as the Marlins stadium.

The Office of the State Attorney: Rundle for Over 19 Years

40. The Miami-Dade Office of the State Attorney, 11th Judicial Circuit, is the

prosecutorial office in Miami-Dade County, which includes the City of Miami.

41. On March 12, 1993, after being appointed to succeed Janet Reno (who left

the position to become President Clinton’s Attorney General), Kathleen Fernandez Rundle

became the State Attorney, the top official at the SAO.

42. Rundle’s office, however, is an elected position. Since 1993, Rundle has

been dependent on votes to maintain and continue her position as the State Attorney.

43. Rundle has now been the State Attorney in charge of the SAO for over

nineteen years.

44. As the State Attorney, Rundle has had responsibility for overseeing every

aspect of the SAO, including investigations run by Scruggs. Scruggs was a high-ranking

prosecutor in the SAO’s public corruption unit until shortly after the SAO’s high-profile losses in

the two cases against Michelle Spence-Jones.

Regalado and Rundle: A Team

45. Rundle was and is a close political ally of Regalado. They shared political

interests, staff, and as set forth below, have enjoyed a mutually beneficial relationship.




9

46. For example, Rundle and Regalado shared the same campaign consultant,

Armando Gutierrez. Gutierrez was a long-time campaign consultant for Rundle. Gutierrez was

Regalado’s campaign manager in his Mayoral race.

47. Rundle’s close family friend, Ada Rojas, was also Regalado’s Community

Relations Coordinator.

48. On information and belief, Regalado attended a fundraiser for Rundle, and

they have appeared together at press conferences and other functions in Miami.

49. On information and belief, Regalado has previously promoted Rundle on

the radio. A popular Mayor, Regalado was an important politician whose voters, constituency,

and support were very useful to Rundle, herself an elected official.

50. Regalado and Rundle’s special relationship has apparently progressed to

the point of mutually beneficial, and highly questionable, quid pro quoarrangements.

51. For example, Rundle has repeatedly refused to properly investigate

allegations of criminality concerning Regalado.

52. In October 1999, Rundle closed out an investigation into allegations of

grand theft based on the alleged misuse of a gas credit card by then-Commissioner Regalado.

53. The SAO admitted that there was evidence of a “serious” issue concerning

numerous charges to Regalado’s City-issued gas credit card from outside Miami’s borders,

charges for which Regalado had no explanation, as well as a “discrepancy” in the amount of gas

purchases as compared to the miles driven.

54. Yet Rundle closed the investigation without charging Regalado. She

justified some of the discrepancies as caused by Regalado’s use of a gas-guzzling utility vehicle.




10

55. Regalado was only too happy to return the favor. For example, Regalado

secretly pressed for a Commission resolution to rename a 56-block road in the heart of Miami in

Rundle’s honor.

56. In 2008, the Florida State legislature passed a bill renaming of a portion of

NW/SW 12th Avenue in Miami as “Katherine Fernandez Rundle Avenue.”

57. The Miami City Commission was required to ratify the renaming before

the Florida Department of Transportation could post the new street signs.

58. The Commission did not ratify the bill in 2008, 2009, or 2010.

59.

After the issue lay fallow for three years, Rundle’s office secretly asked

Regalado to ensure that the Commission ratify the bill.

60. On January 18, 2011, Regalado secretly emailed the Deputy City Manager

for the City of Miami to have the City Commission pass a resolution naming the avenue after

Rundle.

61. In his email, Regalado pressed to “place [the Resolution] in the consent

agenda for [the] next commission meeting.”

62. Per Regalado’s demand, the item was placed on the March 10, 2011 City

Commission agenda.

63. When questioned by theMiami Herald, however, Regalado falsely denied

having any role in the renaming of “Katherine Fernandez Rundle Avenue.”

64. Ultimately, Regalado’s role was revealed when the press obtained his

January 18, 2011 email.




11

65. On March 10, 2011, the Commission voted 3-0 to approve the renaming of

Katherine Fernandez Rundle Avenue. Rundle was not only living, but the chief prosecutor in the

jurisdiction that included the Mayor and the Commission.

66. Just months after Regalado shepherded the renaming of “Katherine

Fernandez Rundle Avenue,” Regalado was once again in criminal jeopardy.

67. In September 2011, after an investigation into campaign finance violations

by Mayor Regalado and Raquel Regalado, his daughter and campaign finance manager, the

Florida Department of Law Enforcement (FDLE) issued a report detailing the findings from its

investigation.

68. The FDLE investigation revealed blatant and criminal campaign violations

that included forging campaign finance reports.

69. A Forensic Auditor with the Miami-Dade Commission on Ethics and

Public Trust (COE) outlined six violations of Chapter 106, Florida Statutes by Regalado and his

daughter.

70. COE Director Joseph Centorino (a former prosecutor at the SAO) and

SAO Assistant State Attorney Howard Rosen both believed that Regalado had acted “in apparent

willful disregard for the rule of law.”

71. Rundle had previously recused herself from investigations of other

politicians with whom she was close, including then-Mayor Joe Carollo, former City Manager

Donald Warshaw, and then-City Commissioner Johnny Winton.

72. But Rundle did not recuse herself in the Regalado case.

73. To the contrary, Rundle assumed responsibility for the investigation of her

friend, ally, and recent road-renaming benefactor.




12

74. Despite substantial evidence of Regalado’s criminal wrongdoing, and the

opinions of the Director of the Miami-Dade Commission on Ethics and Public Trust and her own

Assistant State Attorney, Rundle did not file charges against Regalado.

75. Instead, Mayor Regalado and Raquel Regalado “agreed to pay a fine that

was agreed at $5,000 each for the violations enumerated,” as a civil penalty, without any

criminal charge.

76. Rundle took no steps to force Regalado to resign.

77. In marked contrast, when Rundle believed that then-Miami-Dade County

Commissioner Bruce Kaplan had violated financial disclosure rules, she extracted Kaplan’s

resignation and a promise not to seek reelection as part of a plea bargain.

78. In short, even as Rundle concocted a false bribery charge against Spence-

Jones related to a street naming,see infra, Rundle herself failed to pursue any criminal charges

against the very Mayor who had just helped rename an avenue afterherself , notwithstanding his

“apparent willful disregard for the rule of law.”

Scruggs’ History of Troubled Prosecutions

79. Rundle’s right-hand man in the Spence-Jones cases, Assistant State

Attorney Richard Scruggs, was a senior attorney in the so-called public corruption unit of the

SAO.

80. Scruggs himself had a long and troubled history of prosecutorial

misconduct and unprofessionalism.

The Costa Rica Fiasco: Scruggs Is Criminally Charged

81. For example, in 1993, the Costa Rican government filed criminal charges

against Scruggs.




13

82. The charges stemmed from then-U.S. Deputy Attorney General Scruggs’

involvement in a botched attempt to extradite the suspected leader of a cocaine smuggling

operation, Israel Abel.

83. Abel claimed that Scruggs kidnapped him in Costa Rica; the Costa Rican

government agreed.

84. In 1993, the Costa Rican government filed three protests against the

American government.

85. The Costa Rican government also filed criminal charges against Scruggs.

86.

To date, Scruggs has refused to return to Costa Rica to face those criminal

charges.

The Waco Fiasco: Scruggs Is “Clearly Negligent”

87. In addition, the United States Department of Justice (DOJ) castigated

Scruggs for his failure, as a Deputy Attorney General, to perform a proper investigation into the

1993 confrontation between the FBI and the Branch Davidians in Waco, Texas.

88. Scruggs was the principal author of an October 1993 DOJ report into the

confrontation, known as the “Scruggs Report.” Among other findings, the “Scruggs Report”

concluded that pyrotechnic devices used by the FBI during the raid were “nonincendiary.”

Scruggs also repeatedly told members of the House Committee on Government Reform and

Oversight and the House Judiciary Committee that no pyrotechnic devices were used at Waco in

1993.

89. The Scruggs Report was false.

90. In November 2000, the DOJ Office of Special Counsel prepared a final

report regarding the Waco stand-off.




14

91. The final DOJ report was a scathing critique of Scruggs: “The failure of

the Scruggs team to discover and report that the FBI used pyrotechnic tear gas rounds was the

result of initiating the investigation with the assumption that the FBI had done nothing wrong,

was inconsistent with the responsibility to conduct a thorough and complete investigation, and

was clearly negligent.”

The Gaston Smith Fiasco: “Very Unprofessional” Withholding of Evidence

92. Notwithstanding the above, in 2003, Rundle hired Scruggs to work in the

SAO. Rundle decided that Scruggs—an apparent fugitive whom DOJ had declared “clearly

negligent”—should be her Special Assistant to the State Attorney for Public Corruption.

93. In 2009, in that role, Scruggs was again castigated, this time by Florida

Circuit Court Judge Beatrice Butchko, for his role in the Rev. Gaston Smith case.

94. Judge Butchko reprimanded Scruggs for his involvement in an

investigation where a Miami-Dade police detective, Detective Garcia (also involved in the

Spence-Jones investigation) had unlawfully secretly recorded conversations between criminal

defense attorneys, their client, and the prosecution. See Florida v. Smith, No. F08003920, slip

op. at 11 (Fla. Cir. Ct. Dec. 4, 2009). When Scruggs learned of the secret taping, he did not

promptly disclose the information to the defense.

95. Judge Butchko called Scruggs’ failure to disclose the secret recordings

“very unprofessional.” Id. at 12.

96. Judge Butchko stated that Scruggs’ failure to document the date when the

secret recordings were disclosed to him was “unacceptable.” Id. at 12.




15

97. In further foreshadowing of his later misconduct in the Carey-Shuler case,

Scruggs admitted that he “avoid[ed] . . . a full disclosure of his boxes” by directing a reporter to

what Scruggs allegedly “thought was relevant.” Id. at 17.

98. The court expressed disbelief that Scruggs “testified in court that [he]

intentionally tried to get around complying with a lawful public records request, because [he

does not] like the practice.” Id. at 16. Judge Butchko described Scruggs’ violation of the Florida

Public Records Act as “very bad.”

99. Judge Butchko also stressed that it was “very improper” for Scruggs to

discuss the case with reporters on matters unrelated to the prosecution of Smith. Id. at 17.

The Berry/Smith Fiasco: More Withholding of Evidence from the Defense

100. In 2012, Scruggs was involved in yet another case involving a failure to

disclose important evidence to the defense.

101. Cliff Berry, Inc. and Jeffrey C. Smith were found guilty of two counts of

grand theft. The defendants later filed an appeal, inter alia, because Scruggs failed to disclose

that the testimony by the State’s key witness had changed substantially from deposition to trial.

102. The Florida Third District Court of Appeal reversed the criminal

conviction against the defendants because, inter alia, Scruggs and the SAO “failed to notify the

defense that [the key prosecution witness’] testimony had changed until after [he] began

testifying” at trial, violating a Florida disclosure rule. See Cliff Berry, Inc. v. Florida, No. 3D09-

389, 2012 WL 10846, at *12, 14, 16 (Fla. Dist. Ct. App. Jan. 4, 2012).

103. The appellate court noted that Scruggs was quite aware of the changes to

the key witness’ testimony before the witness took the stand, but failed to notify the defense until




16

after the witness had begun testifying. See id. at *12. Even then, the disclosure was not made on

the record and included only a general statement regarding the changes to the testimony. See id.

Defendants Prepare Their Scheme to Arrest Spence-J ones and K ick Her off the Commission

104. With this understanding of Regalado, Rundle, and Scruggs, we turn to the

defendants’ scheme to remove Spence-Jones from the Commission and eliminate her as an

opponent of the Mayor.

105. In the fall of 2009, then-Commissioner Regalado was running to be Mayor

of the City of Miami, and Spence-Jones was running for re-election as a District 5

Commissioner, both elections to occur on November 3, 2009.

106. Regalado was not merely running for Mayor. Aided by Rundle and the

SAO, Regalado was also scheming to control the Commission.

107. On multiple occasions in the fall of 2009, during election season, the

SAO’s office contacted the City of Miami Office of the City Attorney concerning numerous

internal Commission matters, including the procedure for filling a vacancy on the City

Commission under the Miami City Charter, how many Commissioners would constitute a

quorum sufficient to replace any Commissioners that were suspended, and when an elected

Commissioner’s term of office officially begins.

108. The SAO had no legitimate reason to contact the Office of the City

Attorney about any of these questions.

109. For example, in or about August/September 2009, SAO Chief Deputy Jose

Arrojo contacted a high-level lawyer at the Office of the City Attorney to schedule a meeting.

110. At the SAO, Arrojo was the Chief Assistant of Special Prosecutions,

reporting directly to Rundle.




17

111. Arrojo requested that the meeting be discreet and secret.

112. At the meeting, Arrojo asked pointed questions concerning the Miami City

Charter’s provisions for filling a vacancy on the City Commission, including the appointment

process, special elections, and how many Commissioners would constitute a quorum.

113. This meeting was unusual and unprecedented.

114. After the “discreet” Arrojo meeting, another SAO prosecutor, Angelica

Zayas, an appellate attorney at the SAO, called a high-level lawyer at the Office of the City

Attorney, again with questions concerning the Miami City Charter’s provisions for filling

vacancies on the City Commission. Specifically, Zayas was concerned about whether two

Commissioners could constitute a quorum sufficient to appoint other Commissioners. On

information and belief, Rundle directed Arrojo and Zayas to make these inquiries.

115. In the weeks preceding the November 3, 2009 election, Rundle herself

called the City Attorney for the City of Miami, Julie Bru. Ms. Bru was the highest ranking

lawyer in the legal office for the City of Miami.

116. Rundle asked Bru, inter alia, exactly when a City Commissioner takes

office after an election pursuant to the Miami City Charter. (Under the Charter, a Commissioner

takes office five days after the canvas of the ballots).

117. Rundle had no legitimate reason to call Bru about any of these internal

Commission matters.

118. The SAO had no legitimate reason to call the Office of the City Attorney

about any of these internal Commission matters.

119. In these various conversations, the Office of the City Attorney informed

Rundle and her team that, under the Miami City Charter, if a Commissioner were suspended




18

prior to the November 3, 2009 election, the suspension would only be in effect until the seat was

filled in that election. In addition, if a Commissioner were suspended in between the election

and the swearing-in, the suspension would only be in effect for the few days until the swearing-

in. However, if a Commissioner were suspendedafter the swearing-in, the suspension would be

in effect until the next general election, a year away.

120. For example, if Spence-Jones were elected on November 3, 2009 and took

office on November 12, 2009, she would have to be suspendedafter taking office on November

12, 2009 in order for the suspension to be in effect for a year. If, however, she were suspended

before November 12, the suspension would only last until November 12, at which point she

would re-take her suspended seat.

121. Rundle was keen to know exactly when Spence-Jones would take office.

Rundle asked pointed questions as to the precise date after the election that a Commissioner

would officially take office.

122. While Rundle and her team were carefully preparing the timing for

Spence-Jones’ arrest and suspension from the Commission, Regalado was preparing for Spence-

Jones’ arrest as well.

123. For example, on information and belief in August 2009, long before

Spence-Jones’ arrest, Regalado attended a meeting of the South Florida AFL-CIO in Miami.

There, Regalado told the union members that Spence-Jones was “going to jail.”




19

Spence-J ones is Elected, Sworn-In, and Promptly Arrested and Suspended

124. On November 3, 2009, Regalado was elected Mayor of the City of Miami.

Spence-J ones Is Elected

125. On November 3, 2009, elections for Commissioner were held for Districts

3, 4, and 5 in the City of Miami. As of November 3, 2009, the state of the Commission was as

follows:

126. District 1: Angel Gonzales, who represented District 1, remained a

Commissioner and was not up for re-election in November 2009. Gonzales was a Regalado

opponent.

127. District 2: Marc Sarnoff, who represented District 2, remained a

Commissioner and was not up for re-election in November 2009. Sarnoff was a Regalado ally.

128. District 3: On November 3, 2009, Frank Carollo was elected

Commissioner for District 3, which had been represented by Joe Sanchez.

129. District 4, which had been represented by Regalado, had no winner by

majority vote. A run-off election between Francis Suarez and Manuel Reyes—who each

received between 40% and 45% of the vote—was necessary.

130. District 5: On November 3, 2009, Spence-Jones was re-elected to a four-

year term as a Commissioner for District 5, with an overwhelming 82.63% of the vote.

131. Thus, after the November 3, 2009 election, Spence-Jones and Gonzales—

both rivals of the Mayor—were slated to fill two seats, Carollo was slated to fill the third, and

Sarnoff, a Regalado ally, was slated to fill the fourth. The remaining seat, District 4, remained

open, pending a run-off election.

132. Spence-Jones was due to be sworn into office on November 12, 2009.

133. Defendants, however, had other plans.




20

134. Regalado and Rundle, with the assistance of Scruggs and Fielder,

conspired to arrest Spence-Jones in order to remove Regalado’s political opponent from elected

office.

135. Regalado was a driving force behind the scheme to fabricate false charges

to remove Spence-Jones from office and continue to pursue those charges even where there was

no evidence supporting them.

136. As part of this fraudulent conspiracy, Rundle, Scruggs and Fielder, inter

alia, (i) concocted baseless charges by hiding relevant evidence from Carey-Shuler, the critical

prosecution witness in the Carey-Shuler case, to cause her to provide unknowingly false

testimony; (ii) used that false testimony to file a false arrest affidavit and issue a November 12,

2009 arrest warrant for Spence-Jones; (iii) timed the arrest for maximum political impact; and

(iv) planned with the Governor of Florida to ensure that Spence-Jones was removed from office

immediately upon being arrested.

137. The scheme involved not only the Carey-Shuler and Codina frauds which

are extensively detailed infra, but has also included other baseless investigations of Spence-Jones

by the SAO Defendants, over a period of a number of years, in a desperate attempt to produce

any evidence which could lead to Spence-Jones’ removal from office.

Governor Crist

138. Days before an arrest warrant was even issued for Spence-Jones, Florida

Governor Charlie Crist knew that Spence-J ones was going to be charged and arrested.

139. On November 10, 2009, two days before Spence-Jones’ swearing in,

Governor Crist had in his files a document with a picture of Spence-Jones, listing three “felony”

charges: “grand theft, organize scheme to defraud, money laundering.”




21

140. But Spence-Jones had not been charged with any crime as of November

10, 2009.

141. Rundle’s office had alerted Crist that Spence-Jones would be arrested.

142. Before the arrest, Rundle personally spoke with Governor Crist about

removing Spence-Jones from the Commission after her arrest.

143. Before the arrest, a high-level member of Crist’s staff also contacted the

Office of the City Attorney, to inquire precisely when an elected Miami City Commissioner

would officially take office.

Regalado Prepares For Spence-J ones’ Arrest, and Tries To Destroy a Photograph

144. Before he was sworn in on November 11, 2009, Regalado was also well

aware, via secret communications with Rundle, the SAO, and Crist, that Spence-Jones was going

to be charged and arrested.

145. For example, after November 3, 2009 and, on information and belief,

before November 12, 2009, Regalado’s new spokesman, Pat Santangelo, was at the Miami

television studios of Island TV. In a conversation there, Santangelo stated that Spence-Jones was

going to go to jail on corruption charges.

146. On November 11, 2009, Regalado was sworn in as Mayor.

147. Governor Crist decided to attend Regalado’s swearing-in ceremony at City

Hall. Shortly before the ceremony, Spence-Jones sought to meet Crist, whom she had never met,

and have a photo together. Spence-Jones was brought to a room in City Hall with, inter alia,

Regalado and Crist. Regalado and Crist were quite uncomfortable during the brief meeting. As

between Crist, Regalado, and Spence-Jones, Spence-Jones was the only person unaware that the

SAO Defendants were about to arrest her.




22

148. An official photographer for the City of Miami took a picture of Spence-

Jones, Regalado, and Crist.

149. After the photograph, Spence-Jones left to attend Regalado’s swearing-in

ceremony.

150. Regalado later told the City photographer to destroy that photograph.

151. In the entire career of the City photographer, no public official had ever

told him to destroy a photograph.

152. Regalado’s demand was a violation of the Florida Public Records Act.

The photograph of these public officials was a public record that could not be destroyed under

Florida law.

153. The photographer, however, disobeyed Regalado’s request, and did not

destroy the picture.

Rundle Times Spence-J ones’ Arrest Right After She Is Sworn-In

154. Between Spence-Jones’ election on November 3, and her planned

swearing-in on November 12, Rundle was busy perfecting the scheme to arrest and remove

Spence-Jones at just the right moment.

155. During this period, Rundle personally called Julie Bru, seeking to

determine the precise date when Spence-Jones’ old (2005-2009) term would end, and when her

new (2009-2013) term would begin. Bru informed Rundle that Spence-Jones’ new term would

not begin until noon on the fifth day after the canvas of the ballots, which would be November

12.

156. On November 12, 2009, Spence-Jones was sworn into office as City

Commissioner for District 5.




23

157. That same day, just as planned, Rundle and the SAO filed an arrest

affidavit and obtained an arrest warrant for Spence-Jones for grand theft, second degree, a

felony.

158. Rundle forwarded Governor Crist the arrest affidavit by email dated

November 12, 2009.

159. On November 13, 2009, Spence-Jones turned herself in.

160. At the direction of the SAO Defendants, Spence-Jones was arrested,

detained, booked, fingerprinted and jailed in a holding cell.

161.

Scruggs asked that corrections officers handcuff Spence-Jones while she

was transported to the cell. Upon information and belief, Scruggs made that request in order to

arrange a “perp walk” to further humiliate Spence-Jones.

162. An employee of the Miami Dade Corrections Department rejected the

request to handcuff Spence-Jones and rejected Scruggs’ request to transport Spence-Jones

outside (i.e., a “perp walk”), saying it was not necessary.

Rundle Defames Spence-J ones

163. On November 13, 2009, Rundle held a press conference. Earlier that day,

the SAO issued a press release—which remains published on the SAO’s official website,

available to anyone in Florida, the United States, or anywhere in the world with access to the

Internet—announcing that press conference.

164. The press conference served no legitimate prosecutorial purpose. Rather,

the SAO Defendants intended to and did unfairly and improperly defame Spence-Jones, tar her

reputation in the community and in the court of public opinion, and attempt to taint the jury pool

that would eventually hear the SAO’s fraudulent case.




24

165. During the November 13, 2009 press conference, Rundle stated that

Spence-Jones is “being charged with theft relating to her acts of re-directing county money for

her personal use prior to her becoming a city commissioner, while she was working as a public

servant for the City of Miami.”

166. Spence-Jones never committed any “acts” of “re-directing county money

for her personal use.” The statement was deliberately and maliciously false and defamatory.

167. During the press conference, Rundle also stated that Michelle Spence

“was not entitled to spend $50,000 that was supposed to go to two other entities for any other

purpose.”

168. The statement was deliberately and maliciously false and defamatory.

169. Spence-Jones never spent money that was “supposed to go to two other

entities”; the moneys in question were supposed to go the entity that received those moneys: an

entity called Karym.

170. On November 20, 2009, Rundle—both directly, and through her director

of media relations—sent emails to the largest newspaper in Miami, theMiami Herald, accusing

Spence-Jones of stealing money.

171. First, Rundle authorized and approved statements sent toMiami Herald

reporters stating that, in contrast to Spence-Jones, Commissioner Angel Gonzalez “didn’t steal

any money.”

172. Referring to Spence-Jones, Rundle also wrote: “Why do some public

servants steal from the public”?




25

173. Later that morning, and apparently not content to defame Spence-Jones to

twoMiami Heraldreporters, Rundle personally emailed the same accusations against Spence-

Jones to the editor of theMiami Heraldeditorial page.

174. These were deliberately false and malicious statements. Spence-Jones did

not steal any money or steal from the public.

Crist Suspends Spence-J ones (Suspension #1)

175. On November 13, 2009, just one day after Spence-Jones’ swearing-in,

Governor Crist issued Executive Order 09-248, immediately suspending Spence-Jones from her

Commission seat, and depriving District 5 voters of their elected commissioner. The Executive

Order cited, relied upon, and attached a deliberately false November 12, 2009 arrest affidavit of

defendant Robert Fielder, an SAO employee and investigator, see infra.

176. Crist’s November 13, 2009 Executive Order also prohibited Spence-Jones

“from performing any official act, duty, or function of public office; from receiving any pay or

allowance; and from being entitled to any of the emoluments or privileges of public office during

the period of this suspension; which period shall be from today, until a further Executive Order is

issued, or as otherwise provided by law.”

177. Crist issued the Executive Order suspending Spence-Jones even before an

Information or any charging document had been filed against her.

178. On November 13, 2009, prior to the issuance of the Executive Order,

Governor Crist’s Deputy General Counsel requested a copy of the non-existent charging

document. Although there was no Information or Indictment, and no formal criminal charge had

been filed against Spence-Jones, Crist suspended Spence-Jones anyway.




26

179. The rush to suspend Spence-Jones was irregular at best. For example,

when Cape Coral Commissioner Eric Grill was arrested for three felonies in December 12, 2009,

Crist told an Assistant City Attorney that he would not even consider issuing an executive order

suspending him until the State Attorney filed formal charges. Grill was only suspended on

February 24, 2010, after a formal Information was filed.

Rundle and Regalado Attempt to Manipulate the Composition of the Commission

180. As set forth below, Spence-Jones’ arrest warrant was based on a

November 12, 2009 affidavit of defendant Robert Fielder, an SAO employee and investigator.

181. The Fielder affidavit, in turn, was allegedly based on a September 18,

2009 subpoenaed sworn statement by Barbara Carey-Shuler, the product of Fielder and Scruggs’

conspiracy to withhold and fabricate evidence.

182. Rundle and her co-conspirators, however, waited almost two months after

the Carey-Shuler statement to arrest Spence-Jones.

The Importance of Waiting Until Spence-J ones Was Sworn In Before Arresting andSuspending Her

183. The timing of Spence-Jones’ arrest – immediatelyafter she was sworn in

as Commissioner – was no accident. It was part of defendants’ conspiracy to manipulate the

Commission for political reasons.

184. Prosecutors told the media that the SAO purposefully waited until after

Spence-Jones was elected to arrest Spence-Jones.

185. Defendants’ plan was (i) to remove Spence-Jones from the Commission;

(ii) to remove Spence-Jones’ ally and another Regalado opponent, Commissioner Angel

Gonzalez, from the Commission; (iii) the remaining Commissioners aligned with Regalado

would appoint Richard Dunn, a Regalado ally, as Commissioner to fill Spence-Jones’ seat; and




27

(iv) Regalado-allied Commissioners would appoint Wilfredo Gort as Commissioner to fill Angel

Gonzalez’ seat. This would leave Regalado in total control of the Commission, with Sarnoff (the

Chair appointed by Regalado), Dunn, and Gort reflecting three controlling votes of the five-

member body.

186. Under Section 12 of the Miami Charter, a “majority of the remaining city

commissioners” could fill a vacant Commission seat until the next general or municipal election.

187. As of Spence-Jones’ swearing-in on November 12, 2009, the next general

or municipal election was November 2, 2010, almost an entire year away.

188.

Had Spence-Jones been arrestedbeforethe election or her swearing-in,

any temporary appointment filled by the Commission would only have been in effect until the

November 2009 election and swearing-in, at which time the voters would have elected Spence-

Jones again, by an overwhelming margin.

189. Defendants therefore had little reason to arrest Spence-J ones before the

election, in September or October 2009. She would have simply re-filled her own seat.

190. By waiting until after the November 2009 election and swearing-in to

arrest Spence-Jones, however, defendants could ensure that the temporary appointments by the

Regalado-allied Commission would be in effect for an entire year, until November 2010.

191. Absent Spence-Jones and Gonzalez, the “majority of the remaining city

commissioners” would have been controlled by Regalado and his allies.

A Snag: No Quorum to Replace Spence-J ones; a Ten-Day Deadline Expires

192. Defendants’ nefarious scheme almost worked.

193. As noted, on November 12, the SAO Defendants arrested Spence-Jones

after she was sworn in, and on November 13, Crist suspended her.




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194. Also on November 13, Rundle announced the charges against

Commissioner Gonzalez. As part of the express terms of a plea deal with the SAO,

Commissioner Gonzalez (i) resigned from office, effective November 16; (ii) agreed not to be a

candidate in any special election to fill his own vacant seat; and (iii) agreed not to be a candidate

for any county, state, or municipal office “through the close of the year 2010.”

195. Thus, as of November 13, 2009, defendants successfully removed both

Spence-Jones and Gonzalez from office, leaving Commissioners Frank Carollo and Marc

Sarnoff.

196.

Defendants’ plan, however, hit a snag. At the time of Spence-Jones’

removal and Gonzalez’ forced resignation, District 4 remained open, because of the pending run-

off election between Francis Suarez and candidate Manuel Reyes.

197. Thus, as of November 13, instead of three sitting commissioners on the

Commission, there were only two.

198. Absent a quorum of three, the Commission could not vote at all, much less

appoint Regalado’s allies to replace Spence-Jones and Gonzalez.

199. In addition, under the Miami Charter, the Commission had only 10 days

from Spence-Jones’ removal, until November 23, 2009, to appoint a replacement for Spence-

Jones. If the 10 days lapsed, the people of District 5 would have another opportunity to vote in a

special election for District 5 Commissioner.

200. Even worse from defendants’ perspective, the people of District 5 would

have another opportunity to votefor Spence-Jones.

201. This political development—the lack of a quorum on the Commission due

to the run-off in District 4—was of great concern to Rundle and her co-conspirators.




29

202. Far from being a disinterested prosecutor, Rundle sought to intervene to

fill the empty Commission seats.

Rundle Tries to Manipulate the Commission

203. Rundle once again called the City Attorney for the City of Miami, Julie

Bru.

204. Rundle had no legitimate reason to call Ms. Bru.

205. Rundle asked Bru to contact Gonzalez and ask him to returntemporarily

to the Commission on Saturday November 14, 2009, before the effective date of his resignation.

206.

Rundle wanted Gonzalez to return temporarily in order to create a three-

Commissioner quorum, so that the Commission could appoint Regalado’s hand-picked successor

to Spence-Jones.

207. Gonzalez refused.

208. Rundle had no legitimate reason to attempt to influence Ms. Bru on a

Commission matter, to create a quorum on the Commission, or to help Regalado pick his ally to

fill Spence-Jones’ seat.

Regalado Tries to Manipulate the Commission

209. Having failed to manipulate Gonzalez to return to the Commission despite

the plea deal Rundle orchestrated, and having failed to manipulate the composition of the

Commission to favor her co-conspirator Regalado, Rundle and Regalado took a second tack as

part of their continuing conspiracy to control the City Commission.

210. Regalado summoned Bru to a secret meeting at City Hall, on the weekend

of November 14-15, 2009.

211. Such a meeting was unprecedented.




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212. At the meeting were Regalado, Bru, and a City Commissioner.

213. At the meeting, Regalado pressured Bru to disregard the Miami Charter

and opine that the Commission, evenabsenta quorum, could appoint a commissioner to fill

Spence-Jones’ seat.

214. Bru refused.

215. On November 16, 2009, Bru opined that the Commission could not

appoint Spence-Jones’ replacement, because two commissioners are not a quorum.

216. On November 17, 2009, Francis Suarez, an ally of Regalado, won the run-

off election for Commissioner for District 4.

217. According to published reports, Regalado then allegedly pressured Miami

city clerk Priscilla Thompson to expedite the certification results of the Suarez/Reyes runoff so

that the winner could be sworn in immediately, creating a three-member quorum to appoint

Spence-Jones’ replacement before the ten-day deadline, on November 23. Thompson refused.

218. According to published reports, Regalado than pressured Bru again, this

time to opine that State Governor Crist could appoint Spence-Jones’ replacement on the City

Commission. According to published reports, Bru acquiesced this time, but Crist did not appoint

a replacement.

219. On November 25, 2009, Suarez was sworn in.

220. As of November 25, the Commission finally had a quorum: Suarez,

Sarnoff, and Carollo.

221. But it was too late. The ten-day period under the Miami Charter to

appoint Spence-Jones’ replacement lapsed on November 23, 2009. The Commission was forced

to call a special election to fill Spence-Jones’ seat.




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222. On November 25, 2009, the Commission scheduled District 5’s special

election for January 12, 2010.

223. On November 25, 2009, the Commission also voted to schedule a special

election to fill Gonzalez’ District 1 seat. Apparently Regalado’s plan to appoint Gonzalez’

replacement also failed, because, inter alia, a member of the Commission publicly admitted to

discussing the replacement with other Commissioners in private, violating Florida’s sunshine

law, and tainting any potential attempt by the Commission to appoint Gonzalez’ replacement.

224. On November 25, 2009, Regalado appointed his ally, Commissioner

Sarnoff, to be Chair of the Commission. By tradition, as the ranking member of the

Commission, but for her arrest and suspension, Spence-Jones should have been appointed as

Chair.

The Carey-Shuler Charge: Baseless and Based on Fabricated Evidence

225. How did defendants engineer Spence-Jones’ removal in the first place?

To manufacture and time this baseless charge to remove Spence-Jones from office on November

13, 2009, the SAO Defendants, inter alia: (i) withheldthesingle two most important documents

in the case—which definitively disproved the baseless grand theft charge—from the chief

prosecution witness, Barbara Carey-Shuler; (ii) fabricated evidence in an attempt to manufacture

probable cause, by lying to, threatening, and manipulating Carey-Shuler to induce her to give an

apparently unknowingly false statement that became the basis for Spence-Jones’ arrest; (iii)

withheld those same crucial documents from Spence-Jones and her counsel; (iv) affirmatively

stated that all relevant documents had been produced to Spence-Jones and actively opposed a

public records request seeking access to Carey-Shuler’s file boxes containing these two critical






33

229. Carey-Shuler knew Spence-Jones personally and had confidence that

Spence-Jones would make Café Soul a success.

230. On September 23, 2004, Carey-Shuler recommended that MMAP provide

funding for Café Soul. As part of a long County Commission session involving dozens of

budget allocations, the Commission, at least according to some MMAP staff, apparently

recommended, mistakenly, that the funds be directed to two entities partnering with Karym on

the project: Timbuktu Marketplace (“Timbuktu”) and Osun Village (“Osun”).

231. After Spence-Jones informed Carey-Shuler of the mistake, Carey-Shuler

took steps to direct the $50,000 to Karym, the entity meant to oversee the development of the

Café Soul project.

232. Carey-Shuler orally informed the senior contract manager at MMAP,

William Simmons, of her intent to direct the $50,000 to Karym.

233. Simmons then drafted a confirmatory letter for Carey-Shuler’s review and

approval.

234. That original draft was dated January 9, 2005.

235. Carey-Shuler reviewed the draft and made numerous handwritten edits.

236. Carey-Shuler changed the “re” line from “Negotiated Budget Items—

Karym Ventures, Inc.” to read “Re: Café Soul d/b/a/ Karym Ventures, Inc.”

237. Carey-Shuler also edited the first paragraph. As drafted by Simmons it

read: “This letter serves as clarification of my intent regarding funding allocations to Timbuktu

Marketplace, Inc. and Osun Village during budgetary negotiations in September 2004.” Carey-

Shuler edited the paragraph, adding revisions in her own hand: “This letter serves as clarification




34

of my intent regarding the funding allocations of $25,000 to Timbuktu Marketplace, Inc. and

$25,000 to Osun’s placed in the September 2004 budget.”

238. Carey-Shuler also edited the second paragraph. As drafted by Simmons it

read: “It was intended for Metro-Miami Action Plan Trust to release funding allocated for

Timbuktu Marketplace, Inc. and Osun Village to Karym Ventures Inc. Karym Ventures Inc. is

the company overseeing the development of Café Soul—a commercial development project that

includes Timbuktu Marketplace, and is part of the overall Osun’s Village project.” Carey-Shuler

edited the paragraph, adding revisions in her own hand: “ The Metro-Miami Action Plan Trust

should release the $50,000 to Karym Ventures Inc., the company overseeing the development of

Café Soul—a commercial development project that includes Timbuktu Marketplace, as a portion

of the overall Osun Village Project (See attachments).” (Emphasis added).

239. Carey-Shuler’s draft was faxed on February 11, 2005, likely as a fax

between Carey-Shuler’s home office and her County Commission office.

240. Carey-Shuler’s edits were incorporated into a draft on Carey-Shuler’s

letterhead dated February 15, 2005.

241. Carey-Shuler then made further handwritten edits to the February 15, 2005

letter. She fixed a few typos and wrote a note on top: “It is Karym or Karyn?”

242. These two drafts, in Carey-Shuler’s own handwriting, made clear her

intent to direct $50,000 to Karym.

243. These two drafts, with Carey-Shuler’s handwritten edits, were in a thin file

in her records labeled “Café Soul.”

244. On February 15, 2005, Carey-Shuler directed the final version of the letter

to be signed and sent to MMAP, and directed MMAP to provide the $50,000 to Karym.




35

245. On February 16, 2005, MMAP’s independent board voted 10-1 to spend

$50,000 in MMAP funds to Karym.

246. Karym used that money to develop Café Soul.

The SAO Defendants Hide the Evidence from Carey-Shuler

247. No later than September 18, 2009, by Scruggs’ own admission, the SAO

had possession of all of Carey-Shuler’s files, including the Café Soul file.

248. One of the files was labeled, simply, “Café Soul 2005.”

249. The clearly-labeled “Café Soul” file was approximately 31 pages.

250.

The Café Soul file was not empty.

251. Rather, it contained the drafts of the letter with Carey-Shuler’s

handwritten edits and the final signed letter, directing $50,000 to be paid to Karym.

252. The SAO Defendants therefore had both Carey-Shuler’s final signed letter

and her two drafts with extensive handwritten edits prior to taking a sworn statement of Carey-

Shuler on September 18, 2009.

253. By September 18, 2009, Scruggs and Fielder knew or should have known

that Carey-Shuler had directed MMAP to release $50,000 in funding to Karym.

254. By September 18, 2009, Scruggs and Fielder also knew or should have

known that MMAP itself voted to give $50,000 to Karym.

255. Not to be deterred by the truth, the SAO Defendants embarked on a

nefarious scheme to fabricate false evidence implicating Spence-Jones and bring false charges

based on the fabricated evidence.

256. Specifically, the SAO Defendants perpetrated an outlandish and false story

in which Carey-Shuler directed funds to Timbuktu Marketplace and Osun Village, Spence-Jones




36

forged Carey-Shuler’s signature and secretly redirected funds to Karym, and then Spence-Jones

stole the money. This absolutely fraudulent, fictional, and shameful story was concocted by the

SAO Defendants to charge, arrest, imprison, and destroy Spence-Jones.

257. How did the SAO Defendants pursue this scheme? On September 10,

2009, Scruggs and Fielder met with Carey-Shuler and her attorney.

258. First, Scruggs threatened Carey-Shuler. Scruggs accused Carey-Shuler of

receiving cash payments in return for her support for development deals on the County

Commission. This was no idle threat, as Scruggs and the SAO already had a history of targeting

Carey-Shuler for prosecution.

259. Having accused Carey-Shuler of receiving bribes and being a criminal,

Scruggs then outright lied to Carey-Shuler. Scruggs falsely and maliciously told Carey-Shuler

that Spence-Jones had gone to Las Vegas with Rev. Gaston Smith, and stole and misspent funds

meant for a separate charity. Scruggs also falsely and maliciously told Carey-Shuler that

Spence-Jones had simply stolen the County/MMAP money meant for the Café Soul project.

260. In questioning Carey-Shuler, it became clear that Carey-Shuler had

forgotten about her decisions about the Café Soul funding, including her decision to direct the

$50,000 to Karym. Such forgetfulness was understandable, because, inter alia, (i) the funding

for Café Soul was finalized in February 2005, over four and a half years before the SAO

questioned her, and (ii) Carey-Shuler oversaw a multi-billion dollar budget and was involved in

literally hundreds of budgetary decisions, many of considerably larger magnitude than the tiny

Café Soul project.

261. Rather than reveal to Carey-Shuler her own handwritten drafts of her letter

directing $50,000 to Karym, the SAO Defendants withheld those drafts from Carey-Shuler.




37

262. The SAO Defendants simply hid from Carey-Shuler the evidence that she

directed payment of $50,000 to Karym.

263. The SAO Defendants then deliberately misled Carey-Shuler into believing

that she never authorized the funding allocation to Karym at all.

264. The SAO Defendants knew that if they showed Carey-Shuler the drafts

with her own handwriting, their investigation, their story, and their case would be exposed as the

fraud that it was.

265. Scruggs even told Carey-Shuler that Spence-Jones had forged Carey-

Shuler’s name on the official document directing payment to Karym.

266. This statement by Scruggs was deliberately and maliciously false.

267. By threatening, lying to, and misleading the chief prosecution witness, and

withholding the key pieces of exculpatory evidence, the SAO Defendants induced Carey-Shuler

to make a sworn statement on September 18, 2009, falsely implicating Spence-Jones in a scheme

to take County money improperly, without her authorization.

268. In a further effort to hide and advance this corrupt scheme, Scruggs also

instructed Carey-Shuler to keep quiet about their meeting.

Carey-Shuler’s Sworn Statement: More Lies from the SAO

269. Scruggs and Fielder were present for Carey-Shuler’s September 18, 2009

sworn statement.

270. During that September 18, 2009 sworn statement, it was Scruggs (whose

job was to question, not testify) doing much of the testifying. For many pages, Carey-Shuler—

the “witness” under oath—asked the questions, while Scruggs—the “questioner”—answered

them.




38

271. Scruggs’ testimony was misleading at best.

272. It was Scruggs who “showed [Carey-Shuler] how the money had been

redirected” (allegedly by Spence-Jones and her forgery), Scruggs who said that Spence-Jones

was programming monies to go to Karym, and Scruggs who suggested there was “something

wrong” with Carey-Shuler’s letterhead in the February 15, 2005 letter authorizing payment to

Karym.

273. Scruggs also told Carey-Shuler during her sworn statement that Spence-

Jones “went to Timbuktu Marketplace and . . . there were dealings there which ended up tricking

Mr. Weeks and Osun Village.” This too was false and was said for the purpose of causing

Carey-Shuler to make a false inculpatory statement.

274. At no point did Fielder correct any of Scruggs’ false statements, and at no

point did Scruggs or Fielder reveal the handwritten drafts to Carey-Shuler, reveal that Spence-

Jones did not forge Carey-Shuler’s signature, or reveal that Carey-Shuler had actually authorized

payment of $50,000 to Karym.

275. Barbara Carey-Shuler’s false statement, however unknowing, became the

basis for the prosecution. It was a product of the SAO’s deliberate withholding of documents

and fraud.

The False Fielder Arrest Affidavit

276. Prior to November 2009, Scruggs personally reviewed the Café Soul file.

277. Prior to November 2009, Fielder personally reviewed the Café Soul file.

278. Prior to November 2009, Scruggs and Fielder knew, and Rundle knew or

should have known, that Carey-Shuler had directed $50,000 to Karym.




39

279. Prior to November 2009, Scruggs, Fielder, and Rundle knew or should

have known that MMAP had itself voted to give $50,000 to Karym.

280. On November 12, 2009, Fielder filed a knowingly false arrest affidavit in

order to arrest, detain, and imprison Spence-Jones.

281. Scruggs reviewed and approved Fielder’s affidavit.

282. On information and belief, Rundle reviewed and approved Fielder’s

affidavit.

283. Fielder’s affidavit relied largely on Carey-Shuler’s sworn statement, itself

generated by the SAO’s fraud and deliberate withholding of evidence.

284. Fielder’s affidavit affirmed that on February 15, 2005, MMAP received a

letter which “purported” to be, but was not, from Carey-Shuler.

285. Fielder attached to his affidavit the allegedly forged February 15, 2005

letter from Carey-Shuler.

286. Fielder failed to attach the drafts of that letter in Carey-Shuler’s own

handwriting directing the $50,000 to Karym.

287. Fielder failed to attach the MMAP ballot or any document reflecting

MMAP’s own vote to give $50,000 to Karym.

288. Fielder’s affidavit failed to reveal that Carey-Shuler actually did approve

$50,000 in funding to Karym.

289. Fielder’s affidavit also failed to reveal that MMAP approved $50,000 in

funding to Karym.

290. Fielder and Scruggs knew, and Rundle knew or should have known, that

the Fielder affidavit was false and relied on fabricated evidence.




40

291. As a result of the false affidavit, a warrant was issued for Spence-Jones’

arrest, and the SAO Defendants seized, detained, arrested, and imprisoned Spence-Jones.

The SAO’s False Carey-Shuler Information

292. On December 2, 2009, weeks after Crist suspended Spence-Jones from

office, Rundle and Scruggs filed a sworn Information charging Spence-Jones with one count of

grand theft, in violation of section 812.014(2)(b), Florida Statutes. Scruggs falsely swore to the

truth of the Information on December 2.

293. The Information falsely charged that Spence-Jones “knowingly,

unlawfully and feloniously obtain or use or did endeavor to obtain or use FUNDS, valued at

twenty thousand dollars ($20,000.00) or more but less than one hundred thousand dollars

($100,000.00), the property of MIAMI-DADE COUNTY,” between September 2004 and

September 2005.

294. Scruggs signed the Information charging Spence-Jones with grand theft,

and falsely swore that the allegations in the Information were “based on facts which have been

sworn to as true by a material witness or witnesses, and which if true, would constitute the

offenses therein changes, and that this prosecution is instituted in good faith.” Again, Rundle,

Scruggs, and Fielder concealed that Carey-Shuler approved the $50,000 payment to Karym,

concealed Carey-Shuler’s handwritten drafts, concealed that MMAP itself approved the $50,000

payment to Karym, and instead relied on the false Carey-Shuler statement manufactured and

induced by themselves.




41

The SAO Defendants Attempt to Hide the Evidence from Spence-J ones

295. Compounding their fraud, the SAO Defendants refused to reveal or turn

over the exculpatory draft letters to the defense.

296. To the contrary, Scruggs informed Spence-Jones’ defense counsel, Peter

Raben, that the SAO reviewed all 52 boxes of Carey-Shuler’s files and determined thatonly9

boxes of documents were relevant to the Carey-Shuler case.

297. Scruggs and the SAO bate-stamped and produced for inspection only

those 9 boxes.

298.

The 9 boxes Scruggs produced did not include the Café Soul file.

299. The 9 boxes Scruggs produced did not contain Carey-Shuler’s handwritten

drafts of the February 15th letter, directing $50,000 to Karym.

300. Scruggs and Fielder knew that the 9 boxes did not include the most

important file in all of Carey-Shuler’s files—the very documents disproving SAO Defendants’

fraudulent case.

301. The SAO Defendants also refused to turn over Carey-Shuler’s remaining

boxes or the Café Soul file to members of the public who sought these documents pursuant to

Florida’s Public Records Act. In response to such requests, the SAO only produced 4 boxes of

documents, not including the Café Soul file.

302. The SAO Defendants did not produce the Café Soul file to the defense.

Spence-J ones is Re-Elected; Crist Suspends Her Again (Suspension #2)

303. As noted above, because the 10-day period to appoint Spence-J ones’

replacement lapsed on November 23, 2009, the Commission was forced to call a special election

to fill Spence-J ones’ seat.




42

304. The Commission scheduled a special election for January 12, 2010 to fill

both the temporary vacancy created by Spence-Jones’ suspension and the permanent vacancy

created by Gonzalez’ resignation.

305. To defendants’ horror, and notwithstanding her arrest, Spence-Jones ran

again for office to re-fill her own seat.

306. On December 19, 2009, Governor Crist threatened that, if Spence-Jones

won the special election, he would disregard the will of the voters again, suspend Spence-Jones

again, and require yet another special election.

307.

In anticipation of the special election, on January 4, 2010, Spence-Jones

filed suit against Governor Crist in the Circuit Court of the Eleventh Judicial Circuit in Dade

County, Florida (“the ACLU case”).

308. The ACLU case sought, inter alia, to enjoin Crist from suspending

Spence-Jones for the second time if she were re-elected on January 12.

309. On January 12, 2010, Spence-Jones indeed won the special election for

District 5.

310. Spence-Jones won by a 53% majority vote in a race with nine candidates.

311. On January 12, 2010, Regalado’s ally, Wilfredo Gort, won the special

election for Angel Gonzalez’ seat, in District 1.

312. On January 14, 2010, two days after Spence-Jones won the special

election, Crist issued Executive Order 10-05, suspending Spence-Jones upon her assumption of

office for the second time.

313. Crist’s Executive Order specifically cited, relied upon, and attached the

false Rundle/Scruggs Information.




43

314. Crist’s January 14, 2010 Executive Order also prohibited Spence-Jones

“from performing any official act, duty, or function of public office; from receiving any pay or

allowance; and from being entitled to any of the emoluments or privileges of public office during

the period of this suspension; which period shall be from today, until a further Executive Order is

issued, or as otherwise provided by law.”

315. The Executive Order was effective upon Spence-Jones’ assumption of

office.

316. Spence-Jones was to hold office beginning January 16, 2010, after the

City Clerk completed the vote canvas and transmitted the official results.

317. Thus, Spence-Jones was suspended, for the second time, effective January

16, 2010.

A Second Race Against Time; District 5 Loses Its Vote Again; “Magic City” For Regalado

318. Once again, defendants faced a ten-day deadline under the City Charter—

until January 26, 2010—for the Commission to appoint Spence-Jones’ replacement, or face

another special election in District 5 (which Spence-Jones almost undoubtedly would have won).

319. This time, however, defendants had a quorum in the Commission, of four

votes.

320. On January 19, 2010, Gort was sworn in as a commissioner.

321. On January 26, 2010, the Commission held a “Special Meeting” attended,

inter alia, by Commissioners Sarnoff, Carollo, Gort, and Suarez, and by Mayor Regalado.

322. This was the tenth day after Spence-Jones’ suspension. To prevent

District 5 from voting in another special election, the Commissionhadto appoint Spence-Jones’

replacement no later than midnight.








46

Miami Commission. It’s working together for the Magic City. Thank you, guys. Thank you,

Richard. Thank you very much. Thank you, you all, for being here.”

336. The Commission adjourned at 11:18 p.m., 42 minutes before Regalado’s

“deadline,” 42 minutes before the voters of District 5 would have had the right to elect their own

Commissioner.

337. Regalado’s victory was complete. Through the dogged intervention of the

SAO Defendants, the fraudulent investigation, arrest, detention, imprisonment, and Information,

Regalado had finally swept Spence-Jones off the Commission once and for all.

Spence-J ones and Her Constituents Sue to Regain the Commission Seat

338. Or so defendants thought. On January 26, 2010, Spence-Jones filed a

five-count amended complaint, alleging, inter alia, that Crist’s second suspension violated the

Florida Constitution.

339. The American Civil Liberties Union intervened in the Spence-Jones case,

seeking a permanent injunction against Spence-Jones’ suspension.

340. The ACLU was joined by five City of Miami District 5 voters who voted

for Spence-Jones in the January 12, 2010 special election, as intervenor-plaintiffs.

341. On February 26, 2010, Miami-Dade Circuit Judge Victoria Platzer held a

conference.

342. At the conference, Judge Platzer delivered shocking news to defendants:

they would almost surely lose the ACLU case, and Spence-Jones would have to be reinstated to

the Commission.

343. Judge Platzer stated: “I don’t believe the Governor is permitted . . . to have

suspended [Spence-Jones,] because I believe that the provision requires an indictment. . . . [A]n




47

indictment is different than an information, and she was not charged. She was charged by

information and she was not indicted, or an indictment was not returned against her.”

344. Judge Platzer stated she would rule “within . . . ten days. And if I can do it

sooner, I will.”

A Third Race Against Time; the SAO Indicts; Crist Suspends Spence-J ones Again (Suspension #3)

345. Suddenly, defendants were faced, again, with a race against time.

Notwithstanding their repeated, fraudulent manipulation of the political process, defendants

faced the prospect of Spence-Jones’ imminent return to the Commission.

346. As a result, defendants conspired, yet again, to trump up fraudulent

charges against Spence-Jones.

347. Defendants’ first plan was to sidestep Judge Platzer’s imminent ruling, by

charging Spence-Jones by Indictment instead of Information.

348. The SAO Defendants did not even hide the true goal and intent of the

Indictment: to keep Spence-Jones off the Commission.

349. For example, SAO prosecutor Joseph Centorino, chief of the SAO’s public

corruption unit, told an attorney for Spence-Jones that the ACLU lawsuit served no purpose,

stating in sum and substance: “It’s a waste of time, all we have to do is indict.”

350. Scruggs flatly told a prosecution witness that the SAO would indict

Spence-Jones to keep her off the Commission.

351. Given that there was already an Information, indicting Spence-Jones

served no prosecutorial purpose; it did not advance the criminal case.

352. The sole purpose of the Indictment was to aid Regalado by ensuring that

his political opponent remained off the Miami City Commission.




48

353. There was nothing legitimate about the SAO’s Indictment: it was a naked,

overt, and blatant attempt to manipulate the political process in the City of Miami.

354. Indicting Spence-Jones on a mere grand theft charge was also highly

unusual.

355. Asked about the purpose of indicting Spence-Jones, Rundle stated

publicly: “It just seemed logical to go ahead and get an indictment by a grand jury.” The only

“logical” reason, however, was to keep Spence-Jones off the Commission.

356. On March 3, 2010, at the SAO’s request, a grand jury returned an

Indictment in the Carey-Shuler case, for grand theft, conveniently replacing the November 2,

2009 Information. The Indictment was based on the same fraud and improper withholding of

evidence as the arrest affidavit and the Information.

357. This Indictment was a mere five days after Judge Platzer presaged that

Spence-Jones would be permitted to return to the Commissionabsentan Indictment, and five

days before Judge Platzer’s end date for a formal ruling.

358. The day after the Indictment, Crist issued athirdexecutive order

concerning Spence-Jones.

359. Executive Order 10-61, filed March 4, 2010, purported to “amend[]”

Executive Order 10-05 to “reflect that the suspension of Michelle Spence-Jones . . . is further

supported” by the Indictment.

360. In subsequent briefing in the ACLU case, Crist’s counsel argued that the

Indictment rendered the ACLU case “moot.” The Governor argued that “the voters [in the

January 2010 special election] could not have reviewed [Spence-Jones’] suspension due to the

indictment where [Spence-Jones] had previously been charged by information.”






50

The Renaming of Southeast Second Ave.

368. The Codina case allegedly stemmed from events that occurred in the

spring of 2006.

369. Armando Codina is a prominent developer in Miami and a generous

philanthropist.

370. In March 2006, the developers of an office and hotel complex in

downtown Miami sought a change to the name of the street address for their proposed complex

to aid in marketing. They sought to change the name from “Southeast Second Ave.” to Brickell

Ave. On information and belief, Codina did not own any property on the street whose name

might be changed.

371. On March 23, 2006, the Miami City Commission met about a number of

matters, including the name change.

372. The street was in Commissioner Johnny Winton’s District.

373. Accordingly, Commissioner Winton was seen as the key vote on this

proposal. On a vote that had little City-wide impact, such as this one, the other Commissioners

generally deferred to the view of Commissioner whose district was directly affected, and almost

always voted unanimously.

374. On this trivial issue of no relevance to her District and minimal relevance

to the City, Spence-Jones intended to defer to Commissioner Winton’s view of the Brickell Ave

proposal.

375. At the March 23, 2006 Commission meeting, Spence-Jones told

Commissioner Winton on the record that she “concur[red] with” him and “would definitely . . .

defer to you [Winton] on this item [the street renaming].”




51

376. Because Commissioner Winton was not prepared to vote on the Brickell

Ave proposal on March 23rd, it was postponed to a future meeting and the Commissioners did

not vote on the matter.

377. On March 29, 2006, City Attorney Rafael Rivas-Suarez opined that the

City Commission did not even have jurisdiction to change the name of a state road.

378. The Commission never voted on the street naming issue.

A City of Miami Benefit in the Lyric Theater

379. Months before March 2006, the City of Miami had planned a benefit in the

Lyric Theater in honor of Barbara Carey-Shuler, who had retired from the Miami-Dade County

Commission. The event was scheduled for April 3, 2006. Two Commissioners—City

Commissioner Spence-Jones and County Commissioner Audrey Edmonson—were tasked to host

the event in her honor, and to benefit a charity called the Friends of MLK. Friends of MLK was

a charity whose mission was to advance the vision and goals of the Rev. Martin Luther King, Jr.,

and a co-sponsor of the event.

380. Spence-Jones’ office undertook the fundraising for this official City of

Miami benefit. Her staff invited dozens of people to the benefit, including prominent

philanthropists, community leaders and business persons.

381. Codina had previously donated moneys to a charity that Spence-Jones was

involved in, and he was known as a businessperson who prided himself in giving back to the

community.

382. Codina had also been dear friends with Carey-Shuler’s late-husband, and

knew Carey-Shuler for some 15 to 20 years.




52

383. Codina was also on the board of Burger King, one of the principal

sponsors of the benefit.

384. An assistant in Spence-Jones’ office contacted a number of people,

including Codina, to see whether they would consider contributing to the Friends of MLK

charity. At Codina’s request, Spence-Jones’ office followed-up with an explanatory, March 30,

2006 email describing the charity and the event. The subject of the email was “Reclaim & Build

the Dream Reception Honoring Dr. Barbara Carey-Shule[r].” The email stated: “Thanks again

for your time and support of the MLK Trust Fund,” noted the involvement of the Dade

Community Foundation, and referred to a “special reception, to our hometown hero Dr. Barbara

Carey-Shuler, for her humanitarian efforts in promoting the dreams of Dr. King as well as

addressing the needs of the residents of our great city[.]”

385. During this brief charitable solicitation, the assistant never mentioned the

trivial street matter pending before the Commission. The follow-up email also made no mention

of the matter. The assistant never promised or even implied any “tit for tat” based on Codina’s

contribution to the charity. Codina did not speak to Spence-Jones prior to making the donation.

386. The assistant also explained that Friends of MLK was not yet

incorporated, and that the charitable donation would be deposited at the Dade Community

Foundation, the leading fiscal sponsor for unincorporated non-profits in the Miami-Dade area.

The Dade Community Foundation supports budding non-profits in registering with the IRS and

complying with its regulations.

387. Spence-Jones’ office also informed Codina that Burger King was

sponsoring the event.

388. Codina donated $12,500 to the Friends of MLK Trust Fund.




53

389. Codina made the charitable contribution, inter alia, because of his dear

friendship with Carey-Shuler’s late-husband, because Burger King was a sponsor of the event

(and Codina was on Burger King’s board), because he was a prominent philanthropist, because it

was a charitable cause, and because the money would be deposited with and administered by the

Dade Community Foundation, one of the most reputable organizations in Miami.

390. On April 3, 2006, the Friends of MLK organization held the City of

Miami charity function in honor of Carey-Shuler at the Lyric Theatre. It was an enormous

success.

391.

Checks for the charity, including Codina’s check, were deposited with the

Dade Community Foundation.

392. There was nothing secret about the Codina Group’s charitable

contribution: the Codina Group, Burger King, and others were publicly recognized as sponsors at

the benefit.

393. The SAO Defendants, however, saw in this publicly-recognized charitable

contribution by a prominent philanthropist and friend of the honoree an opportunity to concoct

yet another fraudulent investigation and charge against Spence-Jones.

The SAO Defendants Intimidate and Falsely Accuse Codina

394. This time, the SAO Defendants fabricated evidence in an effort to claim

that the $12,500 Codina donated to a charity was actually a bribe to influence Spence-Jones’

non-existent vote to change the name of a street in someone else’s district.

395. On or about January 6, 2010, Fielder called Codina on the phone while he

was driving with his wife on highway I-95.




54

396. This was just 6 days before Spence-Jones’ special election to the seat she

had lost as a result of the SAO’s arrest.

397. Fielder told Codina: “We have you on tape on a bribery case.”

398. That was a deliberate and malicious falsehood, intended to intimidate and

manipulate Codina in order to persuade him to implicate Spence-Jones in a crime.

399. The SAO did not have any evidence of Codina being involved in a bribe,

on tape or otherwise.

400. In that phone call, Fielder also told Codina that Codina had made

donations to a “fund controlled by Michelle Spence-Jones.”

401. That was a deliberate and malicious falsehood: Spence-Jones did not

control any fund to which Codina donated.

402. Codina said that he “better get a lawyer,” and Fielder agreed, stating

“We’ve got an issue here.”

403. Knowing there was no bribe, no wrongdoing, and not even a Commission

vote, Scruggs and Fielder concocted an alternate reality in order to induce Codina to implicate

Spence-Jones in a crime.

404. Just as they had in the Carey-Shuler case, the SAO Defendants lied to,

manipulated, and withheld evidence from the chief prosecution witness, this time Codina, in an

effort to manufacture probable cause to arrest and then charge Spence-Jones.

The SAO Defendants Lie to and Manipulate Codina

405. On January 12, 2010, the very day of Spence-Jones’ special election,

Scruggs and Fielder met with Codina and his counsel.

406. That same day, Spence-Jones won the special election in District 5.




55

407. Scruggs and Fielder falsely told Codina that the solicitation of Codina was

for a fake, non-legitimate charity run and controlled by Spence-Jones, and that Spence-Jones

used the charity money as her personal piggybank.

408. Scruggs and Fielder also falsely told Codina that the charitable benefit had

simply never occurred.

409. In short, Scruggs told Codina and Codina’s lawyer “in no uncertain[]

terms that no event had taken place at the Lyric Theater, that the charity was a sham, and that

Michelle Spence-Jones had used the money as her own piggy bank.”

410.

Scruggs and/or Fielder also stated that Spence-Jones was a thief and she

could not help herself from stealing. They said Spence-Jones was a “mouse to cheese.”

411. Each and every one of the statements in the preceding four paragraphs was

a deliberate and malicious falsehood.

412. Before January 12, 2010, Scruggs and Fielder knew that there had been a

charitable event.

413. Before January 12, 2010, Scruggs and Fielder knew that Codina’s check

had been deposited at the Dade Community Foundation.

414. Before January 12, 2010, Scruggs and Fielder knew that Spence-Jones

never stole any of Codina’s charitable contribution, much less used the account as her own

“piggybank.”

415. On January 12, 2010, the very day of the special election in District 5,

Scruggs flatly told Codina that if Spence-Jones were re-elected, the SAO would indict her again.




56

Codina Is Duped, by the SAO

416. Codina believed defendants’ lies. As a result, he was “distraught,” and

convinced that Spence-Jones victimized him and stole his money.

417. Codina believed he had been defrauded by Spence-Jones, “based upon the

statements that were made to [him] by Mr. Scruggs” when they met.

418. Because of the SAO Defendants’ lies, Codina believed “that there had not

been an event, that the charity was a fake, and [Codina’s] money had been pocketed by Michelle

Spence-Jones.”

419.

In short, because of the SAO Defendants’ lies, Codina believed he was a

victim of theft by Spence-Jones.

420. Codina left the SAO meeting “ashamed and embarrassed. I thought Ms.

Spence-Jones had duped me. And I was ashamed and intimidated at the state attorneys office

knowing all of that that I gave the check anyway.”

421. The SAO Defendants well knew that their fabricated story could be

exposed if Codina did his own, independent investigation into the check, the Friends of MLK,

and the event at the Lyric Theater.

422. As a result, and in a further effort to hide and advance their corrupt

scheme, Scruggs instructed Codina “not to talk to anyone else or make any comments” about the

Spence-Jones case, including what the SAO Defendants had falsely told Codina.

423. Because Codina was defrauded and misled by Scruggs and Fielder, he

became a witness for the prosecution.




57

424. On March 1, 2010, three days after Miami-Dade Circuit Judge Victoria

Platzer presaged Spence-Jones’ return to the Commission absent an Indictment, the SAO had a

sudden, alleged change in policy concerning indictments.

425. As Scruggs wrote Codina’s lawyer in an email on March 1, 2010: “The

SAO may be changing policy now to put public corruption cases involving elected officials

before grand juries for indictment.”

426. The only reason for the SAO Defendants’ sudden, alleged “chang[e]” in

“policy” was to circumvent the imminent ruling of a Miami-Dade Circuit Judge, indict Spence-

Jones, and keep Spence-Jones off the Commission.

427. On March 2, 2010, Scruggs and Fielder again attempted to intimidate

Codina. Scruggs threatened Codina with criminal prosecution, warning him that he was “in

jeopardy” because he bribed a public official. Ultimately Codina was not charged because,

Fielder claimed, the prosecutor decided Spence-Jones was “the higher target.”

428. The SAO never charged Codina with bribing or attempting to bribe a

public official, even though Codina was the alleged briber.

429. On March 2, 2010, four days after the conference before Judge Platzer,

and as a result of Scruggs’ and Fielder’s outright lies, fabrications, and threats, Codina provided

a sworn statement to aid the prosecution, via an interstate telephone call. The Indictment was

largely based on Codina’s testimony.

430. In his statement, Codina referred to the charity as a “fake charity” that

Scruggs said was being “run out of her [Spence-Jones’] office.”

431. Codina also stated that he saw Commissioner Winton, and not Spence-

Jones, as the pivotal vote in the Brickell Ave extension; Spence-Jones’ assistant never made any




58

mention of the matter pending before the Commission; and Codina decided to donate $12,500

because it was a contribution to a good cause and he did not think there was “anything improper

with the request.”

432. Fielder later admitted that not one witness claimed that Spence-J ones

solicited a donation with the intent of having her vote influenced.

433. On March 3, 2010, five days after the conference before Judge Platzer,

days after the SAO Defendants decided to seek an Indictment, two days after the SAO’s sudden

“changing policy,” and the day after Codina’s statement, the grand jury indicted Spence-Jones.

This Indictment was, again, a product of the SAO Defendants’ lies, withholding of evidence, and

manipulation of Codina.

Defendants Defame, Arrest, and Attempt to Humiliate Spence-J ones

434. Also on March 3, 2010, Rundle issued a press release claiming—falsely—

that the money Spence-Jones’ assistant solicited from Codina was “ultimately deposited . . . into

an account accessible to Commissioner Michelle Spence-Jones.”

435. This was false and defamatory. The Dade Community Foundation

account was not accessible to Spence-Jones. To this day, as authorized by Rundle, the false,

defamatory March 3, 2010 press release remains published on the SAO’s official website,


Internet.

436. On information and belief, on March 3, 2010, Rundle told theSouth

Florida Business J ournal that Spence-Jones “solicited” a “bribe” from Codina.

437. TheSouth Florida Business J ournal published the statement on March 3,

2010.








61

Raben Deposes Carey-Shuler; Carey-Shuler Learns She Was Deceived; the SAO Defendants Continue to Pursue the Fraudulent Case

453. Notwithstanding Scruggs’ insistence and representation that the nine

boxes he produced to Spence-Jones included all Carey-Shuler files relevant to the Shuler case,

Raben demanded access to all Carey-Shuler files in the SAO’s possession, including 43 boxes

the SAO Defendants previously withheld.

454. Raben, Spence-Jones and noted members of the community went to the

County warehouse to review the remainder of the Carey-Shuler boxes.

455. As requested by the County, the door to the room in which Raben and

others viewed the file was kept open, so the review was visible to County staff.

456. Within less thantwenty minutesafter reviewing the boxes never produced

by Scruggs, Raben and Spence-Jones found a folder clearly labeled “Café Soul.”

457. In the Café Soul file were, among other documents, the two drafts of the

February 15, 2005 letter, replete with Carey-Shuler’s handwritten edits to the letter authorizing

payment of $50,000 to Karym.

458. On June 21, 2010, Raben deposed Carey-Shuler.

459. During her deposition, Raben showed Carey-Shuler the drafts of her

February 15th letter to MMAP that Scruggs and Fielder had withheld from Carey-Shuler.

460. Carey-Shuler immediately realized that the handwriting was hers and that

she did instruct that MMAP provide funding to Karym.

461. When Carey-Shuler was shown the drafts of her letter, she realized that

Scruggs had defrauded her: “he tricked me,” she said.

462. Carey-Shuler’s testimony dissipated whatever manufactured probable

cause (if any) had ever existed to prosecute Spence-Jones. Yet, as set forth below, defendants








64

476. Codina insisted that there was no misunderstanding: “Mr. Scruggs, you

unequivocallytold me there had not been an event and that [Spence-Jones] had used the money

as a piggybank.” (Emphasis added.)

477. Even after Codina learned (independent of the SAO) about the charity

event, Scruggs still claimed that the Codina Group had not been “recognized” at the event.

478. This, too, was a false statement.

479. Scruggs later claimed that, unlike his many other lies, this particular

falsehood he perpetrated to, inter alia, Codina, was unintentional.

480.

This SAO falsehood, however, was quite intentional. In a sworn court

filing dated October 6, 2010, which in an October 18, 2010 hearing Scruggs swore to again,

Scruggs and his team stated: “Codina never received credit as a sponsor of the Lyric Theater

event, even as other contributors did,” because Spence-Jones supposedly wanted to hide the

alleged Codina “bribe” from the world. But at the court hearing, Raben presented a photo of the

poster at the event crediting and recognizing “The Codina Group” as a sponsor, right under

“Burger King Corporation.” Rather than admit that he outright lied to the Court, Scruggs falsely

insinuated that the photo itself was fabricated in 2010, presumably by Raben, and was itself

“evidence of falsehood.”

481. At Codina’s deposition, Scruggs told yet more lies, stating, for example,

that Codina’s money was under Spence-Jones’ “control even at the Dade Community

Foundation.”

482. This statement was knowingly and maliciously false.

483. None of Codina’s money was under Spence-Jones’ control.




65

484. Scruggs also stated, again, that Spence-Jones “had used the money as her

own piggybank.”

485. This statement was also knowingly and maliciously false.

486. Scruggs also stated that “the only person that directed the expenditures of

that money [Codina’s money] was herself [Spence-Jones].”

487. This statement was also knowingly and maliciously false.

488. To the contrary, the Codina deposit was deposited in the account of the

Dade Community Foundation, one of the most respected organizations in the State of Florida.

489.

Finally, in an effort to prevent Scruggs from further polluting the record

with his own manipulative misstatements, lies, and prevarications, Raben attempted to convert

the Codina deposition into an actual deposition: “I want to remind everyone here that the purpose

of this deposition is to acquire relevant information of material fact. This is not a summit

meeting where there is some sort of détente going on, and I would like to know if we can

proceed to the questioning and answers, rather than the mia [sic] culpas for what the State

perceives to be inappropriate dissemination of information.”

490. Notwithstanding this deposition, in which the chief prosecution witness

informed the prosecutor he was a liar, defendants insisted on pursuing the Codina case through to

a criminal trial.

The Trial: the Codina Case Is Exposed to the World as a Fraud

491. The Codina trial lasted from February 28, 2011 to March 16, 2011.

492. In the middle of the trial, on March 10, 2011, the Commission voted 3-0 to

approve the naming of “Katherine Fernandez Rundle Avenue.”




66

493. The SAO Defendants knew the Codina case was hopeless: as one assistant

state attorney wrote in an internal email: “If we win this case it will be a miracle of God.”

494. During the criminal trial, Codina again testified about Scruggs’ deceit.

495. Codina testified that Scruggs told him “in no uncertain[] terms that no

event had taken place at the Lyric Theater, that the charity was a sham, and that Michelle

Spence-Jones had used the money as her own piggy bank.”

496. Codina explained that he “believed Mr. Scruggs” and was “convinced that

there had not been an event, that the charity was a fake, and my money had been pocketed by

Michelle Spence-Jones.”

497. As a result of the SAO Defendants’ lies, Codina was “ashamed [and]

thought Ms. Spence-Jones had duped [him].” He felt “intimidated” by the SAO, because

“knowing all of that that I gave the check anyway.”

498. Codina testified, however, that he ultimately found out that therewasa

well-attended event at which he was recognized and two of his executives attended. Codina

further learned that his check was deposited with the Dade Community Foundation.

499. Codina later told reporters that Scruggs had “purposely misled” him.

500. Codina also testified, at this supposed trial about bribery and grand theft,

that there was no bribe and no theft. Codina testified that “it was not a ‘tit for tat.’ If I thought

for a second it had been, I would not have given the check.”

501. During the over two-week trial, not a single witness testified that Codina

bribed Spence-Jones or that Spence-Jones improperly solicited anyone,

502. There was apparently no line the SAO Defendants were unwilling to cross

in their zeal to convict Spence-Jones. For example, even though the SAO Defendants knew full






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509. In order to avoid a written, public record of the secret meeting, Regalado

was snuck into the SAO building, and did not go through the normal identification process.

510. On information and belief, in this secret, back-door meeting, Regalado and

Rundle discussed how they could continue the fraudulent prosecution against Spence-Jones, in

order to keep her from regaining her seat on the Commission.

511. Regalado was intent on keeping Spence-Jones off the Commission for

multiple reasons. He knew he did not and could not control her vote. Most pressingly, Regalado

was intent on firing the Miami Police Commissioner, Miguel Exposito, which ultimately would

require a majority vote on the Commission. This was a high-profile political issue in Miami, and

Regalado was concerned that Spence-Jones would vote against his decision to fire Exposito.

512. Regalado sought to fire Exposito in retaliation for Exposito’s decision to

raid more than a dozen locations containingmaquinitas, or illegal gambling machines. On

information and belief, Regalado was and is a close ally of companies that build, operate, or

market these illegal gambling machines, and received large campaign contributions from these

companies and business owners.

513. Rundle had her own reasons to ensure that Exposito was fired. In January

2011, he had criticized her for prosecutorial delays in investigating fatal shootings by police

officers.

514. In May 2010, he also accused her of dropping a public corruption case

against the grandson of civic leader Georgia Ayers, in order to curry favor with Ms. Ayers.

515. As Exposito later described Rundle: “The problem I have with her is that

she is very aggressive against certain politicians or government workers, yet with others she




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takes the soft approach. She gives you all the reasons in the world to not go after them . . . . I

think she needs to go.”

516. On information and belief, during the summer 2011 meeting, Regalado

and Rundle conspired to postpone dismissing the Indictment until at least after the Commission

voted on Exposito’s removal.

517. In addition, in the Spring/Summer 2011, Regalado stated that Spence-

Jones could not return to the Commission, because she was “too vindictive.”

518. In or about May 2011, Regalado privately admitted in multiple meetings

with high-level staff that he feared Spence-Jones’ return to the dais. Regalado stated that

Spence-Jones would be difficult to work with, a “hell on wheels.” He further stated that the

Commission should push through controversial ordinances and resolutions that the Mayor

wanted passed, but which Spence-Jones might not support.

519. Defendants knew, though, that the case against Spence-Jones was baseless

and had collapsed. No later than early summer 2011, months before the ultimate dismissal,

Scruggs had drafted a memo explaining why the SAO could not pursue the Indictment. This

memo was called the Closeout Memo.

520. As part of the conspiracy to continue the baseless and fraudulent criminal

prosecution, the SAO Defendants nevertheless (i) refused to drop the charge of grand theft,

notwithstanding the lack of probable cause or any basis to support the charge; (ii) attempted to

compel and coerce Spence-Jones into speaking out in support of themselves; (iii) attempted to

compel and coerce Spence-Jones into falsely incriminating herself; and (iv) through a pattern of

deceit and manipulation, extended the prosecution for the maximum possible amount of time,

until the threat of an imminent court date finally forced the SAO to drop the sham prosecution.






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explained that the prosecution was dropping the case because “circumstances developed,” and

“evidence and testimony . . . change[d] over time.”

531. Rundle and Scruggs issued the press release in order to further damage

Spence-Jones’ reputation, and to cover up their own misconduct.

532. For example, Rundle’s spokesman, Ed Griffith, spoke to a member of the

press concerning the dismissal of the Carey-Shuler Indictment: when the journalist indicated that

it appeared that Spence-Jones was innocent, Griffith offered to provide the Closeout Memo to

change his mind.

533.

Scruggs drafted the Closeout Memo

534. Rundle reviewed and approved the Closeout Memo.

535. The Closeout Memo served two principal purposes: (i) to defame Spence-

Jones, and (ii) to cover up the SAO Defendants’ own fraud, deception, withholding of evidence,

and conspiracy against Spence-Jones.

536. In the Closeout Memo, Rundle and Scruggs admitted: “Without Dr.

Carey-Shuler’s cooperative testimony . . . the state does not believe that it can meet its burden of

proving the case beyond a reasonable doubt.”

537. The SAO Defendants, of course, had this same information on June 21,

2010, the date of Carey-Shuler’s deposition, over 14 months before it finally dropped the

Indictment.

538. Even more important, the SAO Defendants had the exonerative documents

no later than September 18, 2009, before they charged Spence-Jones at all.

539. The Closeout Memo claimed, falsely, that Scruggs only obtained Carey-

Shuler’s files in October 2009, after she gave her September 18, 2009 sworn statement.






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549. The Closeout Memo stated: “During questioning by Counsel for Ms.

Spence-Jones, two ‘newly discovered’ documents that had never been given to the State, were

produced which appeared to be two earlier drafts of the Dr. Carey-Shuler’s letter of February 15,

2005.”

550. This is a series of lies. The drafts were not “newly discovered”; they had

been in the Café Soul file all along.

551. The claim that the drafts “had never been given to the State” is also false.

To the contrary, the SAO Defendants seized Carey-Shuler’s file, including the two drafts, no

later than September 18, 2009. It was the SAO Defendants who never produced the drafts to

Spence-Jones, Raben, or Carey-Shuler.

552. The Closeout Memo referred to “the surprise discovery of the two drafts

of the Dr. Carey-Shuler letter.” This is a falsehood: the two drafts were not “discovered”; they

were already in the SAO’s possession. Nor was there any “surprise”: the SAO reviewed the

Café Soul file before November 2009, and therefore knew full well about the existence of the

drafts.

553. In short, in the Closeout Memo, Rundle and Scruggs falsely accused

Spence-Jones and Raben of planting evidence to obstruct justice. As theMiami New Times

reported, “In his close-out memo, Assistant State Attorney Richard Scruggs accuses Spence-

Jones and her defense lawyer of evidence tampering.”

554. Rundle and Scruggs then published these outrageous, false accusations to

the Miami press corps, to employees of the City of Miami, and to the Florida Governor’s office,

among others.




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555. Rundle took a keen personal interest in perpetrating the SAO’s false story

and defaming Spence-Jones and Raben to the world. On August 24, 2011, after the Carey-Shuler

case was formally dismissed, Rundle personally emailed the defamatory Closeout Memo to

employees of the City of Miami, to the Florida Governor’s office, and to members of the public.

556. On August 24, 2011, Raben emailed Rundle: “I wanted to provide you

with fair warning that I intend to defend my integrity in response to the explicit and implicit

assertions in the publicly disseminated close-out memo that I was a criminal conspirator to

planting evidence, suborning perjury and obstructing justice. An immediate and public retraction

would be appropriate.”

557. Incredibly, Rundle professed surprise at Raben’s email, stating, “I must

tell you I didn’t see what you see with respect to your integrity in reading Mr. Scruggs’ close-out

memo. . . . We thought it was just an objective ‘factual’ rendition by Mr. Scruggs.”

558. The rendition, however, was neither “objective” nor “factual.” It was a

litany of falsehoods.

559. Nor was the rendition only by “Mr. Scruggs”; it was by Scruggs and

Rundle, together.

560. Neither Rundle nor Scruggs issued a retraction or apology to the media for

any aspect of the false, defamatory Closeout Memo.

561. To this day, as authorized by Rundle, the false, defamatory August 23,

2011 press release and Closeout Memo remain published on the SAO’s official website,


Internet.






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distress as a result of this entire ordeal. The incident almost destroyed her life and her family.

As a result of what the defendants did, Michelle Spence-Jones lost two years of her life.

568. During those years, and still today, Rundle remains the State Attorney for

Miami-Dade County.

569. During those years, and still today, Regalado remains the Mayor of

Miami.

570. After bothof the prosecution’s lead witnesses – Barbara Carey-Shuler and

Armando Codina – described Scruggs as a liar who deceived them, and after both cases against

Spence-Jones were revealed as a complete and utter sham, Scruggs was removed from the public

corruption unit of the SAO and transferred into a different unit. However, Scruggs today

remains at the SAO, employed by Rundle, with power to investigate, arrest, imprison, and

prosecute.

571. After the criminal cases collapsed, the new Governor of Florida was

forced by law to reinstate Spence-Jones as the Commissioner for District 5. Spence-Jones today

is a Commissioner again, vulnerable once again to the ongoing conspiracy by Rundle and her co-

conspirators to remove Spence-Jones, apparently at any cost.




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AS AND FOR A FIRST CLAIM FOR RELIEF42 U.S.C. § 1983, Fabrication/Concealment of Evidence in Carey-Shuler Case

(Against SAO Defendants)

572.

Plaintiff repeats and realleges the foregoing as if the same were fully set

forth at length herein.

573. Under color of law, Rundle, Scruggs and Fielder, acting individually and

in concert, knowingly and intentionally concealed evidence demonstrating that Carey-Shuler had

authorized the transfer of $50,000 to Karym, and that MMAP had authorized the transfer of

$50,000 to Karym.

574. In knowingly and intentionally concealing such evidence, Rundle and

Scruggs (and of course, Fielder) were not acting as advocates, but were instead acting as police

officers investigating a case.

575. Rundle, Scruggs and Fielder knowingly and intentionally concealed drafts

of the February 15th letter from Carey-Shuler herself, causing her to create fabricated and false

testimony that the final letter was forged.

576. To conceal their fabrication and concealment of evidence, Rundle,

Scruggs and Fielder then knowingly and intentionally concealed the drafts of the February 15th

letter from Spence-Jones and her counsel, to cover up the fact that they knew that Carey-Shuler

had authorized the transfer of $50,000 to Karym. And, as a further cover up, when the evidence

of the drafts of the February 15th letter emerged, Rundle, Scruggs and Fielder falsely claimed that

Spence-Jones and her counsel had manufactured these drafts and planted them in the Café Soul

file.

577. The SAO Defendants also engaged in the other conduct describedsupra,

including, inter alia, lying to Carey-Shuler, threatening Carey-Shuler, falsely claiming that




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Spence-Jones had forged Carey-Shuler’s signature, and filing an arrest affidavit and Information

that withheld exculpatory evidence and relied on false evidence.

578. The SAO Defendants acted with a knowing, willful, wanton, grossly

reckless, unlawful, unreasonable, unconscionable, and flagrant disregard of Plaintiff’s rights,

privileges, welfare, and well-being and are guilty of egregious and gross misconduct towards

Plaintiff.

579. The intentional and/or reckless creation of false and misleading evidence

and withholding of exculpatory evidence was necessary to the probable cause finding which was

the basis for the arrest warrant to be issued, for the Information, and ultimately, the grand jury’s

decision to indict.

580. In violation of the First Amendment, the SAO Defendants targeted

Spence-Jones because of her political position, because she opposed the Mayor, and in order to

deprive her of her right to hold public elected office.

581. As a result, Plaintiff was arrested, imprisoned, handcuffed, seized,

charged, deprived of her employment and elected position, and deprived of her right not to be

deprived of liberty and property, in violation of the First, Fourth and Fourteenth Amendments to

the United States Constitution.

582. As a direct and proximate result of the misconduct and abuse of authority

detailed above, Plaintiff sustained the damages hereinbefore alleged.




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AS AND FOR A SECOND CLAIM FOR RELIEF42 U.S.C. § 1983, Fabrication/Concealment of Evidence in Codina Case


583. Plaintiff repeats and realleges the foregoing as if the same were fully set


584. Under color of law, Rundle, Scruggs and Fielder, acting individually and

in concert, engaged in the misconduct set forthsupra, and knowingly fabricated “evidence,”

inter alia, that Spence-Jones stole Codina’s money, used his funds as a personal piggybank, was

a thief, and induced him to give money to a fake charity for a fake charity event, and

intentionally concealed evidence from Armando Codina demonstrating that his money was

deposited with a real charity in connection with a real charity event, in order to induce him to

implicate Spence-Jones in a crime, arrest and imprison Spence-Jones, and support a baseless

investigation and prosecution against Spence-Jones.

585. In knowingly and intentionally concealing and fabricating evidence,

Rundle and Scruggs (and of course, Fielder) were not acting as advocates, but were instead

acting as police officers investigating a case.

586. In violation of the First Amendment, the SAO Defendants targeted

Spence-Jones because of her political position, because she opposed the Mayor, and in order to

deprive her of her right to hold public elected office.

587. As a result, Plaintiff was arrested, imprisoned, handcuffed, seized,

charged, deprived of her employment and elected position, and deprived of her right not to be

deprived of liberty and property, in violation of the First, Fourth and Fourteenth Amendments to

the United States Constitution.




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Plaintiff.



AS AND FOR A THIRD CLAIM FOR RELIEF42 U.S.C. § 1983, False Arrest for Carey-Shuler Case




591. Rundle, Scruggs and Fielder arrested, seized, detained, and imprisoned

Spence-Jones without probable cause, and/or failed to intervene to prevent this conduct.

592. There was no probable cause to arrest Spence-Jones for the Carey-Shuler

case (or any case).

593. The wrongful, unjustifiable, and unlawful apprehension, arrest, seizure,

detention, and imprisonment of Spence-Jones was carried out without Spence-Jones’ consent,

without basis, and without probable cause or reasonable suspicion.

594. All this occurred without any fault or provocation on the part of Spence-

Jones.

595. In so doing, the SAO Defendants deprived Plaintiff of rights, remedies,

privileges, and immunities guaranteed to every citizen of the United States, in violation of 42

U.S.C. § 1983, including, but not limited to, rights guaranteed by the Fourth and Fourteenth

Amendments to the United States Constitution.




81

596. Said acts were acted under pretense and color of state law, beyond the

scope of their jurisdiction, without authority of law, and in abuse of their powers, and the SAO

Defendants acted willfully, knowingly, and with the specific intent to deprive Plaintiff of her

constitutional rights secured by 42 U.S.C. § 1983, and by the Fourth and Fourteenth

Amendments to the United States Constitution.




Plaintiff.



AS AND FOR A FOURTH CLAIM FOR RELIEF42 U.S.C. § 1983, Malicious Prosecution and Seizure for Carey-Shuler Case




600. Under color of state law, without any probable cause, and with malice, the

SAO Defendants, in their investigatory capacity, fabricated and withheld evidence, illegally

causing the bringing of criminal charges against Spence-Jones for Grand Theft in the Second

Degree.

601. Spence-Jones was criminally prosecuted for almost two years until such

charges were dismissed and resolved in her favor.

602. The SAO Defendants fabricated evidence implicating Plaintiff though they

had documents proving that Carey-Shuler had authorized the payment of $50,000 in county






83

610. Plaintiff was criminally prosecuted until the jury acquitted her on all

counts, and the charges were dismissed in her favor.

611. As a result of the wrongful prosecution, Plaintiff was seized and deprived

of her rights under the Fourth and Fourteenth Amendments to the United States Constitution.

612. The SAO Defendants acted with knowing, willful, wanton, grossly



Plaintiff.

613.

As a direct and proximate result of the misconduct and abuse of authority


AS AND FOR A SIXTH CLAIM FOR RELIEF42 U.S.C. § 1983, First Amendment Retaliation




615. By the conduct set forthsupra, and by knowingly and intentionally

concealing and fabricating evidence in the Codina and Carey-Shuler cases, falsely arresting

Spence-Jones, maliciously prosecuting and wrongfully seizing Spence-Jones, continuing the

prosecutions so that she could not return to her elected position, and manipulating the

Commission and the political and criminal process to orchestrate her removal and exile from

public office, Rundle, Scruggs and Fielder wrongfully retaliated against Spence-Jones for her

political position, because she opposed the Mayor, and in order to deprive her of her right to hold

public elected office, in violation of Plaintiff’s First Amendment rights.




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616. As a direct and foreseeable consequence of the SAO Defendants’ actions,

Plaintiff was deprived of her rights under the First and Fourteenth Amendments to the United

States Constitution.

617. The SAO Defendants acted under color of state law, with knowing,

willful, wanton, grossly reckless, unlawful, unreasonable, unconscionable, and flagrant disregard

of Plaintiff’s rights, privileges, welfare, and well-being and are guilty of egregious and gross

misconduct towards Plaintiff.


detailed above, Plaintiff sustained the damages hereinbefore alleged

AS AND FOR A SEVENTH CLAIM FOR RELIEF42 U.S.C. § 1983, Civil Rights Conspiracy

(Against all Defendants)



620. Under color of state law, Regalado, Rundle, Scruggs, and Fielder

conspired and entered into express and implied agreements, understandings or meetings of the

minds among themselves to deprive Plaintiff of her constitutional rights by the conduct described

supra, including arresting, seizing, detaining, imprisoning, charging and prosecuting her for

baseless charges in the Carey-Shuler and Codina cases, which these Defendants knew were

fraudulent, baseless, and not supported by probable cause, and repeatedly manipulating the

Commission and the political and criminal process, in order to remove her from elected office,

and continuing the prosecutions so that she could not return to her elected position.

621. Regalado, Rundle, Scruggs, and Fielder, acting jointly and in concert,

willfully participated in this illegal objective by various means, by the above, and by, inter alia:






86

k. attempting to cover up and perpetuate the scheme by ordering

prosecution witnesses such as Carey-Shuler and Codina not to reveal the

scheme;

l. continuing the Carey-Shuler prosecution even after she testified

that she authorized county moneys for Karym;

m. postponing dismissing the Indictment to delay Spence-Jones’

return to office;

n. refusing to dismiss the Indictment until Spence-Jones made

statements validating the prosecution;

o. covering up the fraud as to Carey-Shuler by falsely accusing

Spence-Jones and her lawyer of manufacturing, forging, and planting

evidence; and

p. repeatedly defaming Spence-Jones to potential jurors and grand

jurors, the City, the Governor, the media, and the public.

622. As a direct and foreseeable consequence of this conspiracy, Plaintiff was

deprived of her rights under the Fourth and Fourteenth Amendments to the United States

Constitution.

623. Defendants acted with knowing, willful, wanton, grossly reckless,

unlawful, unreasonable, unconscionable, and flagrant disregard of Plaintiff’s rights, privileges,

welfare, and well-being in conspiring against her and are guilty of egregious and gross







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AS AND FOR AN EIGHTH CLAIM FOR RELIEF42 U.S.C. § 1983, Supervisory Liability

(Against Rundle)

625.



626. In addition to Rundle’s liability for directing the conspiracy to deprive

Plaintiff of her constitutional rights, Rundle is additionally liable as a supervisor.

627. As the head of the SAO, Rundle supervised Scruggs and Fielder. Indeed,

upon information and belief, Scruggs reported directly to Rundle.

628. In her supervisory capacity, Rundle caused Scruggs and Fielder to violate

Plaintiff’s constitutional rights, specifically Plaintiff’s rights under the First, Fourth and

Fourteenth Amendments to the United States Constitution, as detailed above.

629. Rundle directed Scruggs and Fielder to violate Plaintiff’s constitutional

rights.

630. Rundle knew that Scruggs and Fielder would violate Plaintiff’s

constitutional rights and failed to stop them from doing so.

631. Rundle knew that Scruggs had a history of documented unlawful,

unprofessional, and unethical conduct, including withholding of exculpatory evidence from the

defense, withholding of exculpatory evidence from the public/violation of the public records

laws, and other misconduct set forthsupra, yet assigned Scruggs to investigate, arrest, imprison,

and prosecute Spence-Jones notwithstanding (and on information and belief, because of) such

misconduct.

632. Rundle acted under color of law, and with a knowing, willful, wanton,

grossly reckless, unlawful, unreasonable, unconscionable, and flagrant disregard of Plaintiff’s




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rights, privileges, welfare, and well-being and is guilty of egregious and gross misconduct

towards Plaintiff.


detailed above, Plaintiff sustained the damages hereinbefore alleged

AS AND FOR A NINTH CLAIM FOR RELIEFCivil RICO, 18 U.S.C. § 1962(c) & (d)




635. Plaintiff and defendants are natural “persons,” and as such are “persons”

within the meaning of 18 U.S.C. § 1961(3).

The Enterprise

636. Regalado and the SAO Defendants comprise two distinct groups of

persons that together form an enterprise within the meaning of 18 U.S.C. § 1961(4). Each and

every defendant is associated with the enterprise. The SAO Defendants also associated together

to form a separate and distinct enterprise within the meaning of 18 U.S.C. § 1961(4).

637. Taken together, Regalado and the SAO Defendants are an association-in-

fact within the meaning of 18 U.S.C. § 1961(4). The SAO Defendants are also themselves an

association-in-fact within the meaning of 18 U.S.C. § 1961(4).

638. The purpose of the enterprise and/or enterprises (collectively “Enterprise”)

was to remove Spence-Jones, Regalado’s political opponent, from elected office through

fraudulent means, and keep her off the Commission as long as possible. This was accomplished,

inter alia, by fabricating false charges to remove Spence-Jones from office and continuing to

pursue those charges even where there was no evidence supporting them.




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639. As part of this fraudulent conspiracy, Rundle, Scruggs and Fielder

engaged in the above, and in, inter alia, the following acts:

a. fabricating Carey-Shuler’s inculpatory testimony, threatening

Carey-Shuler, and withholding evidence from Carey-Shuler;

b. filing a false arrest affidavit based on fabricated testimony and

withheld exculpatory evidence, causing Spence-Jones’ arrest, detention,

imprisonment, suspension, and loss of employment and public office,

without basis or probable cause;

c.

timing the arrest to coincide with Spence-Jones’ swearing in to

office;

d. causing and expediting the suspension of Spence-Jones;

e. filing a false Information based on fabricated testimony and

withheld exculpatory evidence

f. repeatedly manipulating the political and criminal process to

orchestrate Spence-Jones’ removal and control the appointment of Spence-

Jones’ replacement;

g. indicting Spence-Jones based on fabricated evidence, solely to

circumvent an imminent court ruling returning Spence-Jones to office;

h. lying to and withholding evidence from Codina to cause him to be

the chief prosecution witness, in an attempt to manufacture probable cause

in the Codina case;

i. arresting and imprisoning Spence-Jones on baseless bribery and,

later, grand theft charges in the Codina case;




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j. withholding exculpatory drafts of Carey-Shuler’s letter from

Carey-Shuler, Spence-Jones, her counsel, and the public;



scheme;




return to office;





evidence; and



Pattern of Racketeering Activity – Mail and Wire Fraud

640. Defendants, individually and collectively, as an Enterprise, have engaged,

directly or indirectly, in a pattern of racketeering activity, as described below, in violation of 18

U.S.C. § 1962(c) & (d).

641. Defendants, acting individually and as part of the Enterprise, have used

the mails and interstate wires and have caused the mails and interstate wires to be used, or




91

reasonably knew the mails and interstate wires would be used, in furtherance of their fraudulent

schemes. For example:

a. By taking the sworn statement of Armando Codina on March 2, 2010 via

interstate telephone, as detailed above, while Scruggs and Fielder were in

Florida and Codina was out of state.

b. By using the wires, i.e., the SAO’s website, on November 13, 2009 to issue a

press release announcing that Spence-Jones was being criminally charged.

c. By using the wires, i.e., the SAO’s website, on March 3, 2010 to issue a press

release making false statements about Spence-J ones.

d. By using the wires, i.e., the SAO’s website, on August 23, 2011 to issue a

press release and Closeout Memo which made false statements about Spence-

Jones.

e. Scruggs and Fielder visited New York in June 2010 to interview witnesses for

the Codina case and investigate Spence-J ones in yet other cases. On

information and belief, during that trip, Scruggs and Fielder repeatedly used

the wires, including telephone and email, to communicate with others at the

SAO.

f. On information and belief, by repeatedly using the wires, including telephone

and email, between Rundle, Scruggs, and others at the SAO, in connection

with the fraudulent investigations, arrests, imprisonment, detention, seizure,

and prosecutions against Spence-Jones.

642. On information and belief, each and every Defendant had specific

knowledge that the mails and wires were being utilized in furtherance of the overall purpose of




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executing the scheme to defraud, and/or it was reasonably foreseeable that the mails and wires

would be used given the nature of the investigation and prosecutions and the repeated use of the

press, inter alia, to destroy Spence-Jones’ reputation, pollute the jury pool, and engineer Spence-

Jones’ removal.

643. In connection with defendants’ schemes, the acts of racketeering activity

have occurred after the effective date of the RICO statute, 18 U.S.C. § 1961et seq., and on

numerous occasions over a substantial time period within ten years of each other. Defendants’

conduct has involved and continues to pose a threat of long term criminality since it is believed

to have commenced no later than 2009 and lasted until at least 2011. Because the defendants’

actions were part of their regular way of doing business, and because Spence-Jones is again an

active Commissioner for District 5, and all defendants remain in their positions of power as

elected officials, prosecutors, or investigators, there is also an ongoing threat that they will

continue their fraudulent scheme.

Relationship of Pattern of Racketeering Activity to Enterprise

644. As described above, the goal of the enterprise was to remove Spence-

Jones, Regalado’s political opponent, from elected office through fraudulent means, and keep her

off the Commission as long as possible. This was accomplished,inter alia, by the conduct set

forthsupra, and by defrauding Carey-Shuler, defrauding Codina, fabricating false charges to

remove Spence-J ones from office and continuing to pursue those charges even where there was


645. Each defendant has conducted or participated, directly or indirectly, in the

conduct of the enterprise’s affairs through the pattern of racketeering activity described above.

Accordingly, each defendant has violated 18 U.S.C. § 1962(c).




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646. Each defendant has knowingly agreed and conspired to violate the

provisions of 18 U.S.C. § 1962(c), including the numerous predicate acts of mail and wire fraud

described above, and has thus violated 18 U.S.C. § 1962(d).

647. As a direct and proximate result of the RICO violations described in this

Complaint, Plaintiff was injured by being deprived of her elected office, losing wages, incurring

legal fees and costs, and harm to her business/professional reputation, thus constituting an injury

to Plaintiff’s business or property within the meaning of 18 U.S.C. § 1964, by the actions of

Defendants in violation of 18 U.S.C. § 1962(c) & (d).

648.

For the violations of 18 U.S.C. § 1962 described in this Complaint,

Plaintiff is entitled to recover compensatory and treble damages in an amount to be determined at

trial.

AS AND FOR A TENTH CLAIM FOR RELIEF42 U.S.C. § 1983, Retaliatory Inducement to Prosecute

(Against Regalado)



650. Regalado was motivated by retaliatory animus against Spence-Jones

because they were political opponents and he knew he could not control her vote on numerous

issues of significant concern to the people of the City of Miami.

651. Regalado induced his friend and co-conspirator, Rundle, to prosecute

Spence-Jones for the Carey-Shuler case and the Codina case.

652. Regalado induced Rundle to prosecute Spence-Jones to remove Spence-

Jones from elected office.




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653. There was no probable cause to pursue the Carey-Shuler case or the

Codina case.

654. Regalado’s inducement caused Rundle to prosecute these cases, which

they knew were baseless and lacking in probable cause.

655. Even after Codina stated that he was defrauded by the SAO, Regalado

continued to induce Rundle to prosecute Spence-Jones.

656. Even after Carey-Shuler testified that she had authorized the provision of

county moneys to Karym, Regalado continued to induce Rundle to prosecute Spence-Jones.

657.

Even after Spence-Jones was acquitted on all counts in fewer than 90

minutes for the Codina case, Regalado continued to induce Rundle to prosecute Spence-Jones.

658. Regalado continued to induce Rundle to prosecute Spence-Jones to ensure

that Spence-Jones could not return to her elected office.

659. Regalado acted under color of law, with knowing, willful, wanton, grossly


privileges, welfare, and well-being and is guilty of egregious and gross misconduct towards

Plaintiff.

660. As a direct and foreseeable consequence of this conspiracy, Plaintiff was

deprived of her rights under the First and Fourteenth Amendments to the United States

Constitution.






95

AS AND FOR AN ELEVENTH CLAIM FOR RELIEF42 U.S.C. § 1983, Due Process/Stigma Plus


662.



663. Under color of law, Rundle, Scruggs, and Fielder intentionally and

maliciously made false public statements of fact of and concerning Spence-Jones, to the media,

the public, the Governor, the City, potential jury and grand jury pools, and/or to key witnesses,

as set forthsupra, and by falsely stating, inter alia:

a. that Spence-Jones committed “acts” of “re-directing county money for her

personal use,” as detailed in paragraph 165;

b. that Spence-Jones spent $50,000 that was “supposed to go to two other

entities,” as detailed in paragraph 167;

c. that Spence-Jones stole money from the public, as detailed in paragraphs 170-

173 and 259;

d. that Spence-Jones had gone to Las Vegas with Reverend Gaston Smith, and

stole and spent moneys meant for a separate charity, as detailed in paragraph

259;

e. that Spence-Jones had forged Carey-Shuler’s name on the official document

directing payment to Karym, as detailed in paragraph 265;

f. that Spence-Jones “went to Timbuktu Marketplace and . . . there were

dealings there which ended up tricking Mr. Weeks and Osun Village,” as

detailed in paragraph 273;




96

g. that Codina had made donations to a “fund controlled by Michelle Spence-

Jones” and the SAO had him “on tape on a bribery case,” as detailed in

paragraphs 397 and 400;

h. that the solicitation of Codina was for a fake, non-legitimate charity, run and

controlled by Spence-J ones, and that Spence-Jones used the charity money as

her personal piggybank, as detailed in paragraph 407;

i. that the charitable benefit had simply never occurred, as detailed in paragraph

408;

j.

that“

no event had taken place at the Lyric Theater, that the charity was a

sham, and that Michelle Spence-Jones had used the money as her own piggy

bank,” as detailed in paragraph 409;

k. that Spence-Jones was a thief, could not help herself from stealing, and was a

“mouse to cheese,” as detailed in paragraph 410;

l. that the money Spence-Jones’ assistant solicited from Codina was “ultimately

deposited . . . into an account accessible to Commissioner Michelle Spence-

Jones,” as detailed in paragraph 434; and

m. that Spence-Jones “solicited” a “bribe” from Codina, as detailed in paragraph

436.

664. These statements stigmatized Plaintiff by imputing that she acted with

fraud, dishonesty, misconduct and unfitness in her profession as an elected official. These

statements stigmatized Plaintiff by imputing that she had committed the serious crimes of theft,

forgery, and soliciting a bribe.




97

665. These false statements were made in connection with and were reasonably

related to and/or caused the constitutional violations Spence-Jones suffered, including the

multiple suspensions of Spence-Jones from her public employment as an elected official on

November 13, 2009, January 14, 2010, and March 4, 2010, her loss of livelihood and business

goodwill, her loss of liberty, and her false arrests, imprisonment, and wrongful prosecutions.

666. The SAO Defendants’ actions evidenced a reckless and callous disregard

for, and deliberate indifference to, Plaintiff’s constitutional rights.

667. As a direct and proximate result of these false public statements, Plaintiff

sustained the damages hereinbefore alleged.

AS AND FOR A TWELFTH CLAIM FOR RELIEFFlorida RICO, Title 45, § 772.103(3) and (4)




669. Plaintiff and Defendants are natural “persons,” and as such are “persons”

within the meaning of Title 45, § 772.103.

The Enterprise

670. Regalado and the SAO Defendants comprise two distinct groups of

persons that together form an enterprise within the meaning of Title 45, § 772.103(3). Each and

every defendant is associated with the enterprise. The SAO Defendants also qualify as separate

and distinct enterprises within the meaning of Title 45, § 772.103(3).

671. Taken together, Regalado and the SAO Defendants are an association-in-

fact within the meaning of Title 45, § 772.103(3). The SAO Defendants are also themselves an

association-in-fact within the meaning of Title 45, § 772.103(3).




98

672. The purpose of the enterprise and/or enterprises (collectively “Enterprise”)

was to remove Spence-Jones, Regalado’s political opponent, from elected office through

fraudulent means, and keep her off the Commission as long as possible. This was accomplished,

inter alia, by fabricating false charges to remove Spence-Jones from office and continuing to

pursue those charges even where there was no evidence supporting them.

673. As part of this fraudulent conspiracy, Rundle, Scruggs and Fielder

engaged in the above, and, inter alia, in the following acts:

a. fabricating Carey-Shuler’s inculpatory testimony, threatening

Carey-Shuler, and withholding evidence from Carey-Shuler;

b. filing a false arrest affidavit based on fabricated testimony and

withheld exculpatory evidence, causing Spence-Jones’ arrest, detention,

imprisonment, suspension, and loss of employment and public office,

without basis or probable cause;

c. timing the arrest to coincide with Spence-Jones’ swearing in to

office;

d. causing and expediting the suspension of Spence-Jones;

e. filing a false Information based on fabricated testimony and

withheld exculpatory evidence;

f. repeatedly manipulating the political and criminal process to

orchestrate Spence-Jones’ removal and control the appointment of Spence-

Jones’ replacement;

g. indicting Spence-Jones based on fabricated evidence, solely to

circumvent an imminent court ruling returning Spence-Jones to office;




99

h. lying to and withholding evidence from Codina to cause him to be

the chief prosecution witness, in an attempt to manufacture probable cause

in the Codina case;

i. arresting and imprisoning Spence-Jones on baseless bribery, and

later, grand theft charges in the Codina case;

j. withholding exculpatory drafts of Carey-Shuler’s letter from

Carey-Shuler, Spence-Jones, her counsel, and the public;



scheme;




return to office;





evidence; and






100

Pattern of Racketeering Activity – Tampering with a Witness

674. Defendant engaged in “misleading conduct” toward Carey-Shuler with

intent to cause her to testify untruthfully in the SAO’s “official investigation” and at the trial of

Spence-Jones, an “official proceeding,” in violation of Section 914.22(1)(f) of the Florida code.

Such conduct is a predicate act for a Florida RICO Claim pursuant to Section 772.102(33).

675. Defendant engaged in “misleading conduct” toward Carey-Shuler with

intent to cause her to withhold truthful testimony in the SAO’s “official investigation” and at the

trial of Spence-Jones, an “official proceeding,” in violation of Section 914.22(1)(f) of the Florida

code. Such conduct is a predicate act for a Florida RICO Claim pursuant to Section 772.102(33).

676. Defendant engaged in “misleading conduct” toward Codina with intent to

cause him to testify untruthfully in the SAO’s “official investigation” and at the trial of Spence-

Jones, an “official proceeding,” in violation of Section 914.22(1)(f) of the Florida code. Such

conduct is a predicate act for a Florida RICO Claim pursuant to Section 772.102(33).

677. Defendant engaged in “misleading conduct” toward Codina with intent to

cause him to withhold truthful testimony in the SAO’s “official investigation” and at the trial of

Spence-Jones, an “official proceeding,” in violation of Section 914.22(1)(f) of the Florida code.

Such conduct is a predicate act for a Florida RICO Claim pursuant to Section 772.102(33).




101

Pattern of Racketeering Activity – Tampering with or fabricating physical evidence

678. Defendants concealed the drafts of the Carey-Shuler February 15th letter

with the “purpose to impair its verity or availability” in the official investigation against Spence-

Jones and at the trial of Spence-Jones, an “official proceeding,” in violation of Section 918.13 of

the Florida code. Such conduct is a predicate act for a Florida RICO Claim pursuant to Section

772.102(34).

Relationship of Pattern of Racketeering Activity to Enterprise

679. As described, the goal of defendants’ Enterprise was to remove Spence-

Jones, Regalado’s political opponent, from elected office through fraudulent means. This was

accomplished by defrauding Carey-Shuler, defrauding Codina, fabricating false charges to

remove Spence-J ones from office and continuing to pursue those charges even where there was


680. The pattern of racketeering activity described above is integral to

defendants’ scheme. Without engaging in witness tampering and concealment of evidence,

defendants would have been unable to manufacture the baseless charges that supported and

caused the Governor’s removals of Spence-Jones from office.

681. Each defendant has conducted or participated, directly or indirectly, in the

conduct of the enterprise’s affairs through the pattern of racketeering activity described above.

682. Each defendant has knowingly agreed and conspired to violate the

provisions of 772.103(4), including the numerous predicate acts of witness tampering and

evidence concealment, and has thus violated 772.103(3) and (4).

683. In connection with defendants’ scheme, the acts of racketeering activity

have occurred on numerous occasions over a substantial time period within ten years of each




102

other. Defendants’ conduct has involved and continues to pose a threat of long term criminality

since it is believed to have commenced no later than 2009 and lasted until at least 2011.

Because the defendants’ actions were part of their regular way of doing business, and because all

defendants remain in their positions of power as elected officials, prosecutors, or investigators,

there is also an ongoing threat that they will continue their fraudulent scheme.

684. As a direct and proximate result of the RICO violations described in this

Complaint, Plaintiff suffered actual damages, as detailed herein. For the violations of 772.103(3)

and (4) described in this Complaint, Plaintiff is entitled to recover compensatory and treble

damages in an amount to be determined at trial.

AS AND FOR A THIRTEENTH CLAIM FOR RELIEFFlorida Common Law/False Arrest for Carey-Shuler Case




686. At all relevant times, the SAO Defendants acted forcibly in apprehending

and arresting Plaintiff.

687. Rundle, Scruggs and Fielder arrested Spence-Jones without probable

cause, and/or failed to intervene to prevent this conduct.

688. There was no probable cause to arrest Plaintiff for the Carey-Shuler case.

689. The wrongful, unjustifiable, and unlawful apprehension, arrest, and

detention, of Plaintiff was without Plaintiff’s consent, without basis, and without probable cause

or reasonable suspicion.

690. This is a cause of action for damages in excess of fifteen thousand dollars

exclusive of costs and attorneys’ fees.




103



AS AND FOR A FOURTEENTH CLAIM FOR RELIEFFlorida Common Law/Malicious Prosecution for Carey-Shuler Case(Against SAO Defendants)



693. The SAO Defendants, in their investigatory capacity, fabricated and

withheld evidence, illegally causing the bringing of criminal charges against Spence-Jones for

Grand Theft in the Second Degree.

694. Plaintiff was criminally prosecuted until such charges were dismissed and

resolved in her favor.

695. There was no probable cause for the prosecution from its inception.

696. The SAO Defendants fabricated evidence implicating Plaintiff though they

had documents proving that Carey-Shuler had authorized the payment of $50,000 in county

moneys to Karym, and that Spence-Jones had committed no crime.

697. The prosecution continued even after Carey-Shuler admitted that she had

authorized the payment of $50,000 in county moneys to Karym.

698. The SAO Defendants acted with malice, and with knowing, willful,

wanton, grossly reckless, unlawful, unreasonable, unconscionable, and flagrant disregard of

Plaintiff’s rights, privileges, welfare, and well-being and are guilty of egregious and gross







104



AS AND FOR A FIFTEENTH CLAIM FOR RELIEFFlorida Common Law/Malicious Prosecution for Codina Case(Against SAO Defendants)



702. Under color of state law, the SAO Defendants, in their investigatory

capacity, fabricated and withheld evidence, illegally causing the bringing of criminal charges

against Plaintiff for Bribery and Grand Theft in the Third Degree.

703. There was no probable cause for the prosecution from its inception.

704. Plaintiff was criminally prosecuted until the jury acquitted her on all

counts.

705. The SAO Defendants acted with malice, and with knowing, willful,

wanton, grossly reckless, unlawful, unreasonable, unconscionable, and flagrant disregard of

Plaintiff’s rights, privileges, welfare, and well-being and are guilty of egregious and gross









105

AS AND FOR A SIXTEENTH CLAIM FOR RELIEFFlorida Common Law/Intentional Infliction of Emotional Distress

(Against All Defendants)

708.



709. As set forthsupra, defendants’ conduct was extreme and outrageous.

710. These actions were done with intent to cause Plaintiff mental suffering

and/or were done in reckless disregard of the mental suffering that would result.

711. As a result of the SAO Defendants’ actions, Plaintiff suffered extreme and

severe emotional and physical distress.






106

WHEREFORE, Plaintiff respectfully requests judgment against Defendants as

follows:

(A) an order granting compensatory damages in an amount to be determined at trial;

(B) an order awarding treble damages pursuant to RICO, 18 U.S.C. § 1964(c), andFlorida RICO, Title 45, § 772.104(1);

(C) an order awarding punitive damages in an amount to be determined at trial;

(D) an order awarding Plaintiff reasonable attorneys’ fees and costs under 42 U.S.C. §1988, RICO, 18 U.S.C. § 1964(c), and Florida RICO, Title 45, § 772.104(1); and

(E) an order awarding such other further relief as the Court may deem just and proper.

Dated: Miami, FloridaDecember 3, 2012

EMERY CELLI BRINCKERHOFF & LAW OFFICES OF RAY TASEFF, P.A.ABADY LLP

/s/Ilann Maazel* Ray Taseff Debra L. Greenberger* Florida Bar No. 352500 Jennifer Keighley* 225 Alcazar Avenue, 2nd Floor75 Rockefeller Plaza, 20th Floor Coral Gables, Florida 33134New York, New York 10019 Phone: (786) 363-9020Phone: (212) 763-5000 Fax: (786) 363-9040Fax: (212) 763-5001 [email protected]@[email protected] Attorneys for Plaintiff [email protected]

Charles J. Ogletree*Harvard Law SchoolHauser 5161563 Massachusetts AvenueCambridge, MA 02138Phone: (617) 495-5097Fax: (617) [email protected]

* Application for admission pro hac vice to be submitted




A-1

Exhibit A to Complaint: Timeline

Date Event Related ¶¶s

1993 Rundle becomes State Attorney 41

2005 Spence-Jones elected Commissioner for District 5 24

Apr. 3, 2006 Benefit at the Lyric Theatre; Codina Group publicly recognized 379, 392

Aug. 2009 Regalado states Spence-Jones going to jail 123

Fall 2009 SAO repeatedly and secretly contacts Office of the City Attorneyabout filling Commission vacancies

107

No later thanSep. 18, 2009

SAO has the Café Soul file, including the drafts 247

Sep. 18, 2009 Carey-Shuler gives sworn statement after being deceived by Fielderand Scruggs

267

Nov. 3, 2009 Regalado elected Mayor. Spence-Jones reelected Commissioner. 124, 130

Nov. 10, 2009 Governor Crist has document in file listing three felony charges forSpence-Jones

139

Nov. 11, 2009 Regalado sworn in as Mayor. Spence-Jones photograph Regaladotries to destroy.

146 – 153

Nov. 12, 2009 Spence-Jones sworn in as Commissioner

Fielder files arrest affidavit

156 – 157

Nov. 13, 2009 Spence-Jones arrested, detained, booked and jailed for Carey-Shulercase

Crist issues Executive Order 09-248 suspending Spence-Jones

Rundle forces Commissioner Gonzalez out of office

Rundle defames Spence-Jones at press conference

159 – 167, 175,194

ApproximatelyNov. 13, 2009

Rundle asks Bru to convince Gonzalez to create quorum to replaceSpence-Jones

Regalado pressures Bru to opine that the Commission could replaceSpence-Jones absent a quorum

205, 213

Nov. 20, 2009 Rundle defames Spence-Jones to theMiami Herald 170 – 173

Nov. 23, 2009 Deadline for Commission to appoint Spence-Jones replacement 199

Nov. 25, 2009 Suarez sworn in; Commission has quorum. Too late!

Commission schedules special election for J an. 12, 2010

219 – 222

Dec. 2, 2009 SAO files Information in the Carey-Shuler case 292

Dec. 4, 2009 Judge Butchko reprimands Scruggs for “very unprofessional”withholding of evidence

95

Dec. 19, 2009 Crist threatens to suspend Spence-Jones again if she wins specialelection

306




A-2


Jan. 4, 2010 Spence-Jones sues Crist (the ACLU case) 307

Jan. 6, 2010 Fielder threatens Codina in I-95 phone call 395 – 402

Jan. 12, 2010 Scruggs to Codina: if Spence-Jones wins special election, we’ll

charge her againScruggs and Fielder tell Codina there was no charity event and

Spence-Jones stole his money

Spence-Jones wins Special Election

405 – 409, 415

Jan. 14, 2010 Crist issues Executive Order 10-05 suspending Spence-Jones again,effective January 16, 2010

312

Jan. 26, 2010 10-day deadline for Commission to appoint Spence-Jonesreplacement

Shortly before 11:18 p.m.: Commission appoints Dunn; “Magic City”for Regalado

318, 330, 335

Feb. 26, 2010 Judge Platzer: no Indictment, no suspension. Promises final rulingwithin 10 days or sooner.

343 – 344

Days beforeMar. 3, 2010

SAO suddenly seeks Indictment in Codina case 347 – 355

Mar. 1, 2010 SAO’s new “policy”: indict in public corruption cases 424 – 426

Mar. 2, 2010 Scruggs lies to Codina again; Codina’s sworn statement 427 – 429

Mar. 3, 2010 SAO gets Indictment in Carey-Shuler case

SAO gets Indictment in Codina case

356, 363

Mar. 4, 2010 Crist issues Executive Order 10-61 suspending Spence-Jones for athird time 358 – 359

Apr. 5, 2010 Because of Indictment, Judge Platzer dismisses ACLU case 361

May 27, 2010 Scruggs threatens to get “even” with Raben 447 – 448

Jun. 21, 2010 Raben shows drafts to Carey-Shuler at her deposition; Carey-Shulertricked by the SAO

458 – 461

Jan. 18, 2011 Regalado sends secret email to rename street “Katherine Fernandez-Rundle Avenue”

60 – 61

Feb. 16, 2011 Codina deposition: Codina accuses Scruggs of deception 468

Feb. 28 –Mar. 16, 2011 Codina trial; Spence-Jones acquitted in less than 90 minutes 491 – 504

Mar. 10, 2011 Commission names street “Katherine Fernandez-Rundle Avenue” 492

Approx.May 2011

Regalado: pass resolutions before “hell on wheels” returns toCommission

518

Summer 2011 Back-door meeting between Regalado and Rundle 516




A-3


Jul. 2011 SAO demands Spence-Jones admit that there is “probable cause” for a“fair prosecution”

521 – 523

Aug. 23, 2011 Raben calls SAO’s bluff; refuses to postpone August 24th court date

SAO dismisses Carey-Shuler caseSAO issues defamatory press release and close-out memo

524 – 561

Aug. 24, 2011 Codina: Scruggs is a “serial liar”

Lawyer for Carey-Shuler: “Scruggs lied to her”

562 – 564




A RESOLUTION OF THE MIAMI CITY COMMISSION WITH ATTACHMENT(S),DENYING THE REQUEST OF MAYOR TOMÁS REGALADO FOR DEFENSE INTHE CASE OF MICHELLE SPENCE-JONES V. STATE ATTORNEY KATHERINEFERNANDEZ RUNDLE, ET AL., CASE NO. 12-CV-24253-XXXX;

BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA:

Section 1. The request of Mayor Tomás Regalado for defense in the case of Michelle Spence-Jones v. State Attorney Katherine Fernandez Rundle, Mayor Tomás Regalado, Assistant

State Attorney William Richard Scruggs and Investigator Robert Fielder , Case No. 12-cv-24253-XXXX, United States District Court, Southern District of Florida, is hereby denied.

Section 2. This Resolution shall become effective immediately upon its adoption andsignature of the Mayor.1

1 If the Mayor does not sign this Resolution, it shall become effective at the end of ten calendar days from the date itwas passed and adopted. If the Mayor vetoes this Resolution, it shall become effective immediately upon overrideof the veto by the City Commission.



A RESOLUTION OF THE MIAMI CITY COMMISSION WITH ATTACHMENT(S),APPROVING THE REQUEST OF MAYOR TOMÁS REGALADO FOR DEFENSEIN THE CASE OF MICHELLE SPENCE-JONES V. STATE ATTORNEYKATHERINE FERNANDEZ RUNDLE, ET AL., CASE NO. 12-CV-24253-XXXX;AUTHORIZING THE EXPENDITURE OF CITY FUNDS TO PAY ATTORNEYS’

FEES AND COSTS MONTHLY; MAKING A DETERMINATION OF PUBLICPURPOSE; DECLARING THE POLICY OF THE CITY OF MIAMI WITH RESPECTTO THE IMPLEMENTATION OF SECTION 111.07, FLORIDA STATUTES, FORCITY COMMISSIONERS AND THE MAYOR.

BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA:

Section 1. The request of Mayor Tomás Regalado for defense in the case of Michelle Spence-Jones v. State Attorney Katherine Fernandez Rundle, Mayor Tomás Regalado, Assistant

State Attorney William Richard Scruggs and Investigator Robert Fielder , Case No. 12-cv-24253-XXXX, United States District Court, Southern District of Florida, is hereby approved based uponthe findings and declarations set forth herein, and subject to the conditions set forth herein.

Section 2. The expenditure of City funds from the appropriate accounts to pay reasonableattorneys’ fees and costs monthly is hereby authorized, and the City Manager is hereby directedto cause such payments to be made, if it is found that such attorneys’ fees and costs arereasonable.

Section 3. The City Commission hereby makes the following findings of fact anddeclarations of public purpose related to the actions set forth herein, based upon a weighing of policy concerns and issues important to the City and the public interest:

Section 4. The City reserves the right not to pay any particular invoice or invoices forattorneys’ fees and costs for any reason.

Section 5. If an order, judgment or verdict is rendered against the Mayor, and it is found bythe court that the Mayor acted in bad faith, with malicious purpose, or in a manner exhibitingwanton and willful disregard of human rights, safety or property, then the City shall seekreimbursement for all attorneys’ fees and costs paid from the Mayor.



Section 6. If a verdict is rendered in favor of the Mayor, and prevailing party attorneys’ feesand costs are available or payment of attorneys’ fees and costs as a sanction are appropriate, theMayor shall pursue such prevailing party attorneys’ fees and costs or sanctions, and reimbursethe City for any and all attorneys’ fees and costs and sanctions received as a result.

Section 7. If attorneys’ fees, costs or sanctions are available for any reason to the Mayor inthe course of his defense, including but not limited to the conduct of the Plaintiff or pleadings ormotions filed by the Plaintiff against the Mayor, then the Mayor shall pursue such attorneys’fees, costs or sanctions, and reimburse the City for any and all attorneys’ fees, costs andsanctions received as a result.

Section 8. This Resolution shall become effective immediately upon its adoption andsignature of the Mayor.1

1 If the Mayor does not sign this Resolution, it shall become effective at the end of ten calendar days from the date itwas passed and adopted. If the Mayor vetoes this Resolution, it shall become effective immediately upon overrideof the veto by the City Commission.



Page 1

544 So.2d 230, 14 Fla. L. Weekly 938, 14 Fla. L. Weekly 1230 (Cite as: 544 So.2d 230)

© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

District Court of Appeal of Florida, First District.

The CITY OF FORT WALTON BEACH, Appellant, v.

Al GRANT, Appellee. Patricia THORNBER, John Franklin, and Al Grant,

Appellants, v.

The CITY OF FORT WALTON BEACH, Appellee.

Nos. 87-1900, 88-99. April 14, 1989. Rehearings Denied June 30, 1989.

City councilmen sued city for reimbursement of legal fees incurred in connection with defendingthemselves against various lawsuits arising fromdismissal of city officials. The Circuit Court, Oka-loosa County, Erwin Fleet, J., entered judgment forcouncilmen on certain claims, and for city on others.Councilmen and city appealed. The District Court of Appeal, Barfield, J., held that: (1) legal fees of coun-cilman who was sued in federal civil rights action

brought by dismissed city police chief were reim-bursable; (2) councilmen were not entitled to reim-bursement for legal fees involved in various lawsuitsand administrative proceedings where they were notnamed parties; and (3) councilmen who were named infederal civil rights suit brought by dismissed policechief were improperly denied legal fees, by beingdeemed in bad faith through having violated “Sun-shine Law” in process of deciding to dismiss chief,where bad-faith issue had not been raised in pleadings.

Affirmed in part, reversed in part and remanded.

Zehmer, J., concurred and dissented with writtenopinion.

See also 534 So.2d 754.

West Headnotes

[1] Municipal Corporations 268 163

268 Municipal Corporations 268V Officers, Agents, and Employees

268V(A) Municipal Officers in General 268k161 Compensation

268k163 k. Reimbursement of Expend-itures. Most Cited Cases

City councilman was entitled to reimbursementfor legal fees, under statute providing for such reim-bursement where municipal employee prevails in suit,where dismissed city police chief brought federal civil

rights action against councilman and then terminatedaction by voluntary dismissal. West's F.S.A. § 111.07.





City was not obligated to pay legal fees of city

councilmen in defending various actions arising out of councilman's dismissal of city officials, as councilmenwere not named parties as required under statuteproviding for such reimbursement. West's F.S.A. §111.07.


268 Municipal Corporations 268XVI Actions

268k1034 k. Pleading. Most Cited Cases

City's denial of claim for reimbursement of legal

fees paid by city councilmen in defending lawsuit wasimproperly based on councilmen's alleged bad-faithconduct in holding meeting contrary to provisions of “Sunshine Law,” as this ground was not raised inpleadings. West's F.S.A. § 111.07.




Page 2






Councilmen seeking reimbursement for legal feescould not challenge applicability of standard for de-termining reasonable attorney fees as set forth in Su-preme Court decision, when they had amended theircomplaint in order to comply with those standards andtheir expert witness testified as to reasonableness of fees under such standards.


268 Municipal Corporations 268XVI Actions

268k1040 k. Costs. Most Cited Cases

City councilmen, who had prevailed in lawsuitagainst city to compel reimbursement of legal feespaid to defend against lawsuit brought by dismissedpolice chief, were not entitled to legal fees incurred inaction against city, as city had raised justiciable issuesof law and fact in its defense. West's F.S.A. § 57.105.

*231 James E. Moore of Moore & Moore, P.A., Ni-ceville, for City of Fort Walton Beach.

George E. Day of George E. Day, P.A., Fort WaltonBeach, for Thornber, Franklin and Grant.

BARFIELD, Judge. These cases consolidated on appeal for record

purposes only, originated from a six-count amendedcomplaint filed by Fort Walton Beach CouncilmenJohn Franklin, Patricia Thornber, and Al Grant,against the City of Fort Walton Beach. The Council-men sued under section 111.07, Florida Statutes

(1981), for reimbursement of attorney's fees, ex-pended for private representation in several legal andadministrative actions arising from the City Council'sdismissal of the City Manager, Winston Walker, andthe Police Chief and Director of Public Safety,Thomas B. Ray. In Case No. 87-1900, the City appealsfrom a final judgment in favor of Councilman Grant.In Case No. 88-99, Councilmen Thornber, Franklin

and Grant appeal from a trial court order dismissingcounts II, III and V of their amended complaint and,Councilmen Thornber and Franklin appeal from final judgment in favor of the City. We affirm the judgment

in Case No. 87-1900, and affirm in part and reverse inpart the judgment in Case No. 88-99.

I. In May 1981, Kate Bagley was elected Mayor of

the City of Fort Walton Beach, and Thornber andFranklin were elected to the City Council. Al Grantand Jim Baughman were already Councilmen. In June1981, and prior to being sworn into office, Franklin,Thornber and Bagley met privately at Bagley's homeand apparently drafted several resolutions which wereultimately passed by the entire City Council at anopen, public meeting on July 6, 1981 (the newly

elected officials had been sworn into office on July 1,1981). The resolutions called for the resignation of City Attorney Walter Smith, the dismissal of CityManager Walker, the appointment of Mayor Bagley asActing City Manager, and the appointment of MichaelMead as City Attorney.FN1 Mayor Bagley, acting in thecapacity of City Manager, then fired Police Chief Ray.

FN1. Mead filled the position for a shortwhile until Michael Chesser succeeded himin late July, 1981 and served until August,1983. James Moore then became the CityAttorney and is attorney of record for the

City.

A number of legal and administrative actionswere filed in reaction to the resolutions, accusing theCity Council of misconduct, particularly violation of the “Government in Sunshine Law.” FN2 These actionsformed the underlying legal basis for the councilmen'ssix-count amended complaint for statutory attorney'sfees. In essence, the Councilmen alleged that the Cityhad declined to represent them in the underlying*232 actions; that, as a result, they had to retain privatecounsel; and, that in each action, the Councilmen hadprevailed and were entitled to reimbursement of at-

torney's fees under section 111.07.

FN3

FN2. Section 286.011, Florida Statutes(1981). The Sunshine Law provides, inter

alia, that all public meetings at which officialaction is to be taken must be open to thepublic at all times, and that any resolution,rule, or formal action is void unless taken or





Page 4



County. The trial court agreed with Ray andthe City Attorney appealed. This court re-versed. Chesser v. Ray, 425 So.2d 92 (Fla.1st DCA 1983).

In January 1985, Judge G. Robert Barron grantedthe City's motion to dismiss *233 Counts II-VI forfailure to state a cause of action upon which relief could be granted. Strictly construing section 111.07,the trial court found that the statute contemplated onlyreimbursement of attorney's fees for party-defendants,and prohibited the payment of attorney's fees on be-half of public officials who initiated litigation, (CountII). The court also found that the Councilmen were notlegally required to defend the grievance petition filedby Thomas Ray, (Count III), and Ray's action in cir-cuit court against the City Attorney (Count V). In

dismissing Count IV, the court granted leave to amendthe count to allege that the Councilmen had requestedthe City to provide an attorney for their defense in thefederal lawsuit, and that the request had been denied.Finally, the court found that section 111.07 did notcontemplate reimbursement of attorney's fees forfiling the present lawsuit (Count VI). In a subsequentorder, the trial court found that the City had nevermoved to dismiss count I of the amended complaint,and that the Councilmen had successfully amendedcount IV, so that dismissal of that count was void.FN9 The Councilmen's appeal of the dismissal of Counts II,III and V, was dismissed by this court as untimely.FN10

FN9. After the initial order dismissingCounts II-VI, the Councilmen amendedCount IV to allege that they had requestedlegal representation from former City At-torney Chesser in the federal lawsuit, whoadvised them that he had a conflict of interestdue to the nature of the accusations made byThomas Ray and could not represent both theCouncilmen and the City, and that theCouncilmen should retain private counsel.

FN10. The dismissal of Count VI was never

challenged.

In June 1985, the City filed its answer to theamended complaint, generally denying the allegationsin count I, and asserting as an affirmative defense thatthe Councilmen were not named as party defendants inWilson v. City of Fort Walton Beach, and did notintervene in the lawsuit, so that they were not entitled

to an award under section 111.07. As to Count IV, theCity admitted that Thomas Ray had filed a civil rightslawsuit in federal court against the City, the Mayorand the City Council, but otherwise denied its liability

for reimbursement of attorney's fees under section111.07, and asserted as an affirmative defense that ithad provided an attorney for the Councilmen in thefederal lawsuit.

In September 1985, the trial court entered an or-der granting the City's motion for summary judgmentas to count I, finding that a genuine issue of materialfact did not exist as to the Councilmen's request forreimbursement of attorney's fees relating to Wilson v.

City of Fort Walton, in that the Councilmen werenever named as individual defendants in that action.However, the trial court denied the motion for sum-

mary judgment as to Count IV, finding that there was agenuine issue of material fact as to representation of the Councilmen in both their official and individualcapacities in the federal lawsuit.

In February 1987, the case proceeded to trial be-fore Judge Erwin Fleet on Count IV of the amendedcomplaint. Councilwoman Thornber testified thatafter she was elected, but before she was sworn intooffice, she had attended the meeting at Mayor Bagley'shome. The trial judge asked her whether the proposedresolutions were discussed at the meeting. Thornberreplied that they had discussed firing Police Chief Ray

and City Manager Walker. Thornber also testified thatshe gave a deposition in Wilson v. City of Fort Walton, and that her attorney, George Day, represented her atthat deposition. She stated that City Attorney Chesserhad advised her that he could not represent her in thefederal lawsuit due to the conflict of interest and thathe had told her to retain a private attorney to representher in both her individual and official capacities. Shestated that Day filed an answer and motion to dismissin the federal case on her behalf in both her capacities,and although she entered into a written retainer withDay, it was her understanding that the City would beultimately responsible for paying his fees.

Councilman Grant testified that he had two orthree conversations with City Attorney Chesser, whoadvised him that he *234 should also retain privaterepresentation in both capacities in the federal lawsuit.Grant also hired Day, but he never agreed to pay theattorney any fees because it was his understanding thatthe City was obligated. To the trial judge's inquiries



Page 5



about the meeting at Bagley's home, Grant replied thathe had not attended that meeting and that he neverdiscussed any proposed resolutions with his fellowcouncilmen before the public meeting.

Councilman Franklin testified that MichaelChesser had represented him at a deposition in theWilson case before he became City Attorney, but thatafter he became City Attorney, Chesser advisedFranklin to seek private counsel, suggesting Day.Franklin also testified that he never had an attor-ney/client relationship with Chesser in the federallawsuit. To the judge's inquiries about the privatemeeting at Bagley's home, Franklin responded that itwas a social function for coffee at which he, Bagley,Thornber and Bagley's private attorney, a Mr. Chan-dler from Washington, discussed the general state of

the city and whether to retain City Manager Walker,but that no decision was reached. Franklin testifiedthat prior to the public meeting on July 6, 1981, he hadmet with Chandler and former City Attorney Mead todiscuss the chronological order of the proposed reso-lutions, which were drafted by Mead. Franklin statedthat his decision to vote for Walker's dismissal wasmade 45 minutes before the public meeting.

City Attorney Chesser testified by deposition thathe represented the Councilmen in their official ca-pacities and that attorney Day represented them indi-vidually in the federal lawsuit. He stated that Mayor

Bagley was represented in her individual capacity by aprivate attorney, and that Councilman Baughman alsohad an attorney to represent him in his individualcapacity in the federal lawsuit.

After the Councilmen rested their case on the is-sue of liability, the City moved for a directed verdict,arguing that it was not liable for the attorney's fees inthe federal lawsuit because former City AttorneyChesser had represented the Councilmen in their of-ficial capacities. The trial court denied the motion,stating that “the record before the Court right nowshows very emphatically that he [Chesser] never un-

dertook to represent them [the Councilmen] in theirofficial or individual capacity.” The City was unableto show the trial court that Chesser filed a pleading onbehalf of the Councilmen in their official capacities. Infact, the pleadings from the civil rights lawsuit showedthat Chesser had filed a motion for extension of timeto file an answer on behalf of Bagley and the City; thatDay had filed an answer and a motion to dismiss on

behalf of councilmen Thornber, Franklin and Grant intheir individual and official capacities; and, thatChesser had eventually filed an answer on behalf of the City only.

After the City rested its case, the Councilmenpresented evidence on the amount of a reasonableattorney's fee. George Day testified to the hours heexpended and rates at which he billed his clients.Expert witness, attorney Pat Maney, testified that thehours and rates billed were reasonable, and that ap-plying Rowe, a reasonable fee for the services was$35,000.

In October 1987, the trial court entered final judgment, finding that Councilmen Thornber andFranklin had violated the Sunshine Law by partici-

pating in the “secret” meeting at Mayor Bagley'shouse, citing Tolar v. School Board of Liberty County, 398 So.2d 427 (Fla.1981), and, that as a result, theyhad acted in bad faith under section 111.07 and weretherefore not entitled to attorney's fees for their de-fense of the federal lawsuit. The court awarded re-imbursement of fees to Councilman Grant, who wasnot present at the “secret” meeting. The court alsodetermined that the City had not asserted a frivolousdefense in the present case and therefore the Coun-cilmen were not entitled to attorney's fees under sec-tion 57.105, Florida Statutes (Supp.1986).

Councilmen Franklin and Thornber filed a motionfor rehearing, alleging that they were surprised by partof the court's ruling. They attached affidavits whichalleged that at the time of the “secret” meeting,*235 they were advised by former City Attorney WalterSmith that the meeting was not a Sunshine Law vio-lation. The City responded by filing a motion to strikethe motion for rehearing. Councilmen Franklin andThornber then filed a motion to amend the motion forrehearing, alleging that the Sunshine Law violationwas neither pled nor tried by the parties' consent andthat, in any event, the trial court had misapplied Tolar. The trial court denied the City's motion to strike and

granted the Councilmen's motion to amend the motionfor rehearing, but subsequently denied the motion forrehearing. The Councilmen then filed a motion toamend the order denying their motion for rehearing,which the trial court also denied.

The City filed a notice of appeal, from that por-tion of the final judgment awarding fees to Council-



Page 6



man Grant (Case No. 87-1900). Councilmen Thorn-ber, Franklin and Grant filed a two-part notice of appeal (Case No. 88-99). In Part I, all three Council-men appealed the trial court's order dismissing Counts

II, III and V of their amended complaint. In Part II,Councilmen Thornber and Franklin appealed the final judgment denying them reimbursement of reasonableattorney's fee pursuant to Counts I and IV of theiramended complaint.FN11

FN11. In their notice of appeal, Part II, theCouncilmen mistakenly assert that theircause went to trial on both Counts I and IV.Count I was dismissed by summary judgmentand is not challenged on appeal.

II.

CASE NO. 87-1900 The City's first point on appeal is that the trial

court erred in entering judgment in favor of Coun-cilman Grant because the City did, in fact, defendGrant in his official capacity in the federal lawsuit.This argument fails because the testimony at trial andthe pleadings of the federal lawsuit support a findingthat the City never provided an attorney to defendCouncilman Grant or any of the other Councilmen inthe federal lawsuit, in any capacity.

[1] The City's second point on appeal is that Grantdid not prevail in the federal lawsuit. Therefore, he

was not entitled to attorney's fees under section111.07. We disagree and affirm the trial court's awardof attorney's fees pursuant to section 111.07, based onthe authority of Metropolitan Dade County v. Evans, 474 So.2d 392 (Fla. 3d DCA 1985). In general, when aplaintiff takes a voluntary dismissal the defendant isthe prevailing party. Stuart Plaza, Ltd. v. Atlantic

Coast Dev. Corp. of Martin County, 493 So.2d 1136(Fla. 4th DCA 1986). In Evans, a police officer and thecounty were sued in a civil action for damages whicharose out of the officer's official duties. The officerwas dismissed with prejudice as a result of a settle-ment negotiated by the county. The trial court found

that the officer had “prevailed” and therefore, wasentitled to reimbursement of his attorney's fees pur-suant to section 111.07, Florida Statutes (1983). Theappellate court affirmed, stating that “the dismissaloperated to terminate any proceeding against the of-ficer ... a merits determination is not a prerequisite toan award of attorney's fees where the statute providesthat they will inure to the party who prevails.” 474

So.2d at 393. In the instant case, Grant prevailed be-cause the dismissal with prejudice in the federal law-suit signalled an end to the litigation against him andunder these circumstances a merits determination was

not necessary.

III. CASE NO. 88-99

A. [2] In Part I of their appeal, the Councilmen assert

that the trial court erred in dismissing Counts II, IIIand V, and finding that they had to be named partydefendants in the underlying actions in order to bereimbursed for attorney's fees under section 111.07.They contend that a public official is entitled to re-imbursement of reasonable attorney's fees where amunicipality refuses to provide counsel to defend the

official, regardless of the fact that the official was notsued directly, citing *236 Lomelo v. City of Sunrise,

423 So.2d 974 (Fla. 4th DCA 1983), rev. dism. 431So.2d 988 (Fla.1983), and Ferrara v. Caves, et al., 475 So.2d 1295 (Fla. 4th DCA 1985). The City re-sponds that this court should strictly construe section111.07, therefore, the Councilmen were not entitled toattorney's fees because they were not defendants in theunderlying actions referred to in Counts II, III, and Vof the amended complaint.

Section 111.07 recognizes the common law doc-trine that a public officer is entitled to an attorney at

the expense of the public in litigation arising from theperformance of his official duties while serving apublic purpose. Nuzum v. Valdes, 407 So.2d 277 (Fla.3d DCA 1981); Ellison v. Reid, 397 So.2d 352 (Fla.1st DCA 1981); Markham v. State Dept. of Revenue, 298 So.2d 210 (Fla. 1st DCA 1974); Duplig v. City of

South Daytona, 195 So.2d 581 (Fla. 1st DCA 1967);Peck v. Spencer, 26 Fla. 23, 7 So. 642 (1890). Thepurpose of the rule is to avoid a “chilling effect” that adenial of representation might have on a public officialin performing his duties properly and diligently. Nuzum, 407 So.2d at 279. Section 111.07 “is designedto prevent municipal officers from having to pay the

expenses of litigation incurred in the performance of their official duties.” Wright v. Acierno, 437 So.2d242 (Fla. 5th DCA 1983). While the statute does notmandate a public body to defend an employee, Greer

v. Mathews, 409 So.2d 1105 (Fla. 1st DCA 1982), itdoes require the public body to reimburse the em-ployee for private representation in actions arising outof his official duties. Section 111.07, Florida Statutes



Page 7



(1981).

Statutes authorizing the award of attorney's feesare considered in derogation of common law so as to

require strict construction. Encompass Incorporated v. Alford, 444 So.2d 1085 (Fla. 1st DCA 1984). Section111.07 requires reimbursement of attorney's fees to aprevailing defendant in a civil action arising from acomplaint for damages or injuries suffered as a resultof the official acts or omissions of public officials oremployees. In neither the suit for injunctive relief filedby the Councilmen, nor the grievance petition andcircuit court action filed by Ray, were the Councilmen prevailing defendants as required by section 111.07.Therefore, the statute was never activated, and the trialcourt correctly dismissed Counts II, III and V of theamended complaint.

In Lomelo, the mayor of Sunrise City was indictedfor corruption by threat against a public servant, andsuspended from office. Because of the suspension thecity attorney refused to represent him and the mayorretained private counsel. The mayor was acquitted andthe city declined to pay the mayor's attorney's fees.The mayor then filed a declaratory judgment action.The trial court affirmed the city's denial of fees, find-ing that the city had no duty to pay. The Fourth DCAreversed, stating that:

a municipal corporation or other public body is

obligated to furnish or pay fees for counsel to defend apublic official subjected to attack either in civil orcriminal proceedings where the conduct complainedof arises out of or in connection with the performanceof his official duties. This obligation arises inde-pendent of statute, ordinance or charter. It is not subject to the discretion of the keepers of the city coffers.

423 So.2d at 976.

In Ferrara v. Caves, Ferrara filed recall petitionswith the town clerk, seeking the removal of three towncommissioners due to their vote on a proposed rent

stabilization ordinance. The commissioners filed anaction for declaratory and injunctive relief against thedeputy town clerk and the town, alleging that therecall petitions were legally insufficient. Ferrara in-tervened in the action as an indispensable party.Subsequently, the parties entered into a stipulation thatthe recall petitions were illegal and void and the courtentered a final judgment pursuant to the stipulation,

finding the petitions legally insufficient and perma-nently enjoining the town clerk from processing them.The commissioners then filed a motion for attorney'sfees against the town, citing Lomelo. The trial court

denied the fees and the commissioners appealed. Theappellate court reversed, holding*237 that, althoughthe commissioners themselves instituted the declara-tory and injunctive action, it “was an effort to defendagainst charges of misconduct and that in the spirit of Lomelo the town is required in line with case law topay reasonable attorney's fees....” 475 So.2d at 1300. The court found that the recall petitions were basedupon actions that the commissioners took as publicofficials. Id.

While we find Lomelo to be a sound embodimentof the common law as recognized in section 111.07, it

is inapplicable to the present case. In Lomelo, theparties agreed that no state statute, city ordinance orprovision of the city charter authorized or requiredreimbursement of attorney's fees in that case. 423So.2d at 975. The probable reason for this stipulationwas that section 111.07 only applies to defense of civilactions. Additionally, the mayor in Lomelo was adefendant to a felony indictment, unlike the Coun-cilmen in the present case, who were only nameddefendants in the federal civil rights action. We alsofind Ferrara inapplicable. The Ferrara court did notaddress the propriety of an attorney's fee award undersection 111.07. The court simply construed the “spir-

it” of the common law principles as delineated in Lomelo, to include actions in equity instituted tocombat recall petitions which charged the public of-ficials with misconduct in office. Such a constructionwould be improper under section 111.07, which re-quires reimbursement of attorney's fees to defendants who prevail in civil actions “arising from a complaintfor damages or injury.” Therefore, we hold that sec-tion 111.07 does not require the City of Fort WaltonBeach to reimburse the Councilmen for reasonableattorney's fees and costs expended to initiate thelawsuit to enjoin the recall petitions; nor is the Cityobligated for any fees or costs incurred by the Coun-cilmen relating to the grievance petition or circuit

court action filed by Thomas Ray. Accordingly, weaffirm the trial court's order dismissing Counts II, IIIand V of the amended complaint.

B. In Part II of their appeal, Councilmen Thornber

and Franklin raise two issues for this court's review:



Page 8



(1) Whether the trial court properly tried issues relat-ing to violations of the Sunshine Law; and, if so, (2)whether the trial court correctly applied and inter-preted the Sunshine Law in light of Tolar v. School

Board of Liberty County, 398 So.2d 427 (Fla.1981).Because we find that the trial court improperly triedthe Sunshine Law issues, we decline to address themerits of the trial court's finding that the SunshineLaw violation constituted “bad faith” action negatingan award of attorney's fees pursuant to section 111.07.

[3] The City never pled as an affirmative defensethat the Councilmen violated the Sunshine Law andthat such violation constituted “bad faith” action ne-gating an award of attorney's fees under section111.07. The evidence regarding this defense waselicited by Judge Fleet in his inquiries of the Coun-

cilmen at trial. Although the Councilmen never objected to the trial judge's questioning, the issue of aSunshine Law violation as “bad faith” action wasnever raised by the parties in the pleadings or at trial.Under these circumstances it was improper for JudgeFleet to try the issue. In general, legal issues not raisedin pleadings are deemed waived and may be tried onlywith the express or implied consent of the parties. Hart Properties, Inc. v. Slack, 159 So.2d 236(Fla.1964); Bilow v. Benoit, 519 So.2d 1114 (Fla. 1stDCA 1988); Fla.R.Civ.P. 1.140(b), (h); 1.190(b).

The City argues that the Sunshine Law issues

were tried by consent of the parties. This argumentfails for several reasons. Neither party expressly orimplicitly raised the “bad faith” issue; the trial judgeelicited the evidence from which he made his findings.Even if the evidence was relevant (and admissible) tothe issues framed by the parties, it was inappropriateto imply from it a consent to try an issue not pleaded.See Rahaim v. City of Jacksonville, 504 So.2d 1323(Fla. 1st DCA 1987) (where the trial court was nevermoved to amend the issues pursuant to rule 1.190(b),*238 nor where it ever ruled that the unpleaded issueswere tried by implication, an appellate court is espe-cially precluded from implying a consent to try theunpleaded issues). Additionally, the Councilmen'sfailure to object to Judge Fleet's questioning regardingthe “secret” meeting cannot be construed as impliedconsent to try Sunshine Law issues, where the ques-tioning may have been relevant to the issues presentedin the pleadings, and the Councilmen would have noreason to object. See Bilow, 519 So.2d at 1116. Wefind that the final judgment denying Councilmen

Thornber and Franklin attorney's fees based upon their“bad faith” conduct of violating the Sunshine Law wasoutside the issues raised in the pleadings or at trial.Accordingly, we reverse. See Freshwater v. Vetter,

511 So.2d 1114 (Fla. 2d DCA 1987) (judgment madeupon issue outside pleadings is voidable on appeal).

C. [4][5] The Councilmen raise two additional issues

in their appeal. First, they challenge the applicabilityof the standard for determining reasonable attorney'sfee as set forth in Fla. Patient's Compensation Fund v.

Rowe, 472 So.2d 1145 (Fla.1985). We conclude thatthe Councilmen have waived any challenge to theapplicability of Rowe. Not only did they amend theiramended complaint in order to comply with Rowe, buttheir expert witness on attorney's fees, Pat Maney,

testified as to the reasonableness of fees under the Rowe standard. Second, the Councilmen appeal thetrial court's denial of fees under section 57.105, Flor-ida Statutes (Supp.1986). Since the City presented justiciable issues of both law and fact in their defense,we affirm the trial court's order denying attorney's feesunder section 57.105.

IV. In summary, we AFFIRM the City's appeal from

the final judgment awarding reimbursement of attor-ney's fees to Councilman Grant, in Case No. 87-1900.In Case No. 88-99, we AFFIRM the trial court's order

dismissing Counts II, III and V of the amended com-plaint. However, we REVERSE the final judgmentdenying Councilmen Thornber and Franklin recoveryunder Count IV of their amended complaint, andREMAND for the trial court to enter judgment forthem consistent with Grant's award.

SHIVERS, J., concurs. ZEHMER, J., concurs and dissents with writtenopinion. ZEHMER, Judge (concurring and dissenting).

I fully concur in the court's opinion in all respectssave one: I dissent from the affirmance of the order in

case number 88-99 dismissing count II of the amendedcomplaint.

The trial court denied the prayer for attorney'sfees with respect to count II solely on the rationale thatappellants were not named defendants in the civilaction alleged in that count and thus did not fall withinthe language of section 111.07, Florida Statutes, enti-



Page 9



tling them to attorneys fees. I believe this constructionof the statute is much too strict, and the decision is notin keeping with the decisional law of this state.

Count II alleged a claim for reimbursement of attorney's fees in connection with a declaratory judgment action filed by appellants that resulted in thecourt's enjoining enforcement of the invalid and illegalrecall petitions addressed to appellants. In Ferrara v.

Caves, 475 So.2d 1295 (Fla. 4th DCA 1985), the courtheld that under the common law certain commission-ers were entitled to have the city pay their attorney'sfees incurred in filing a declaratory judgment action tohave the recall petitions filed against them declaredinvalid and illegal and enjoin the enforcement thereof.There seems to be no question that the common lawrecognizes a right of governmental officers to reim-

bursement for legal services performed for such of-ficer to establish or defend the officer's legal right toact in that capacity, whether or not the officer is sueddirectly as a defendant. *239 Lomelo v. City of Sunrise, 423 So.2d 974 (Fla. 4th DCA), rev. dism. 431 So.2d988 (Fla.1983). See also, White v. Crandon, 116 Fla.162, 156 So. 303 (1934). I can find no valid distinctionbetween the facts in Ferrara and in this case. I con-clude, therefore, that the affirmance of the dismissal of count II in this case amounts to a direct conflict withFerrara.

The majority opinion predicates its holding en-

tirely on a strict construction of section 111.07 asrequiring that the officer actually be named as a de-fendant in the court proceeding in order to be entitledto reimbursement of attorneys fees. It should be notedthat the court in Ferrara did not mention section111.07 in reaching its result, apparently preferring torest its decision on the common law doctrine. Ap-parently, the majority in the instant case has deter-mined, without explicitly saying so, that the subjectstatute has completely displaced the common lawdoctrine. Moreover, the majority applies a strict con-struction to the statute upon the stated proposition thatthe award of attorney's fees is in derogation of thecommon law, citing Encompass Incorporated v. Al-

ford, 444 So.2d 1085 (Fla. 1st DCA 1984), a case thatinvolved a statutory provision for attorney's fees in aprivate dispute involving a mechanic's lien. But thatcase has no precedential value in respect to the ques-tion now before us because, as cited above and con-ceded by the majority opinion, “section 111.07 rec-ognizes the common law doctrine that a public officer

is entitled to an attorney at the expense of the public inlitigation arising from the performance of his officialduties while serving a public purpose.” Supra at 236.The fact that the five cases cited by the majority in

support of this stated proposition all involved cases inwhich the officers were named as defendants does notnecessarily serve to limit the application of the com-mon law doctrine to named defendants only normandate a strict construction of the statute as somodifying and limiting the common law doctrine. I donot believe, therefore, that the statute should be strictlyconstrued to require appellants to be named as a de-fendant in the court action to recover such fees. Allthat is necessary to recover such fees is that the officeremploy the attorney's services for the purpose of es-tablishing, protecting, and defending the officer's legalright to act in his official capacity in the manner al-

leged; whether the attorney, in the exercise of hisprofessional judgment, elects to initiate a court actionto achieve that purpose or simply to wait until othersinitiate such action is immaterial in my view, for to soconstrue the statute would significantly deprive thepublic officer of the full benefit of his attorney's ex-pertise and the protections that can be afforded by acourt action.

Either the majority opinion is in error, or theFourth District's opinion in Ferrara is in error; bothcannot stand as valid, reconcilable law. Since I agreewith Ferrara, I would reverse the dismissal of count

II.

Fla.App. 1 Dist.,1989. City of Fort Walton Beach v. Grant 544 So.2d 230, 14 Fla. L. Weekly 938, 14 Fla. L.Weekly 1230

END OF DOCUMENT



181 So. 153 Page 1132 Fla. 334, 181 So. 153 (Cite as: 132 Fla. 334, 181 So. 153)


Supreme Court of Florida. CITY OF WINTER HAVEN et al.

v. A. M. KLEMM & SON.FN*

FN* Rehearing denied 182 So. 841.

April 5, 1938. Rehearing Denied May 18, 1938.

Suit by A. M. Klemm & Son against the City of

Winter Haven and others to enjoin municipal taxationof described land. From adverse interlocutory decrees,defendants appeal.

Reversed and remanded for further proceedings.

West Headnotes

[1] Taxation 371 2712

371 Taxation 371III Property Taxes

371III(H) Levy and Assessment 371III(H)10 Judicial Review or Intervention 371k2712 k. Injunction to restrain as-

sessment. Most Cited Cases (Formerly 371k498)

Illegal taxation of lands may be enjoined.

[2] Constitutional Law 92 990

92 Constitutional Law 92VI Enforcement of Constitutional Provisions

92VI(C) Determination of Constitutional

Questions 92VI(C)3 Presumptions and Construction as

to Constitutionality 92k990 k. In general. Most Cited Cases

(Formerly 92k48(1), 92k48)

Judgment 228 524

228 Judgment 228XII Construction and Operation in General

228k524 k. Application of general rules of construction. Most Cited Cases

Statutes, judgments, and decrees should be soconstrued and applied that the intended purpose willbe effectuated consistently with applicable provisionsof the paramount organic law.


92 Constitutional Law 92XXVII Due Process

92XXVII(B) Protections Provided and Dep-rivations Prohibited in General

92k3868 Rights, Interests, Benefits, orPrivileges Involved in General

92k3869 k. In general. Most Cited Cases (Formerly 92k251)

Personal and property rights intended by theConstitution to be secured to those lawfully claimingthem should be protected and enforced by due courseof law when no applicable express or implied provi-

sion of the State or Federal Constitution is therebyviolated.


92 Constitutional Law 92VII Constitutional Rights in General

92VII(B) Particular Constitutional Rights 92k1108 Right to Property


Where a command or prohibition of the Consti-

tution is violated in the creation or production of thesubjects of property or in the acquisition of interesttherein, such interests are not rights intended by theConstitution to be secured, and they will not be pro-tected or enforced in the courts.

[5] Judgment 228 564(1)





228 Judgment 228XIII Merger and Bar of Causes of Action and

Defenses 228XIII(A) Judgments Operative as Bar

228k564 Finality of Determination 228k564(1) k. In general. Most Cited

Cases

Where municipal interest-bearing negotiablebonds for authorized municipal public improvementpurposes were validated by decrees of circuit courtunder express statutory authority in proceedings towhich all citizens and taxpayers of municipality weremade parties by statute, validation or issue of bondswas not contested, and no appeals were taken fromvalidating decrees, those decrees became res judicata.

Sp.Acts 1925, cc. 11299, 11301.

[6] Quo Warranto 319 64

319 Quo Warranto 319II Procedure

319k64 k. Operation and effect of ouster orforfeiture. Most Cited Cases

A quo warranto judgment ousting a city fromexercising jurisdiction over an added area on groundthat area was not covered by subject expressed in titleto act establishing city's territorial limits did not affectcity's de facto jurisdiction over added area, sinceLegislature had power by statute to incorporate addedarea in city, and quo warranto judgment could notchange city's statutory boundaries. Sp.Acts 1925, c.11301; F.S.A.Const. art. 3, § 16.

[7] Statutes 361 63

361 Statutes 361I Enactment, Requisites, and Validity in Gen-

eral 361k63 k. Effect of total invalidity. Most Cited

Cases

Statutes 361 64(1)

361 Statutes 361I Enactment, Requisites, and Validity in Gen-

eral 361k64 Effect of Partial Invalidity

361k64(1) k. In general. Most Cited Cases

Where a statute or part of a statute establishing orrelating to a municipality's jurisdiction and powers

violates command or prohibition of the Constitutionrelating not merely to form of exercise of legislativepower but to nature or character of subject matter of statute, such a statute or portion thereof may be adju-dicated to be invalid and inoperative ab initio andcould not be validated by statute or judicial decree,and no rights or correlative obligations may ariseunder such an invalid statute or portion thereof.F.S.A.Const. art. 3, §§ 16, 30; art. 9, §§ 7; art. 12, § 17.

[8] Quo Warranto 319 64

319 Quo Warranto 319II Procedure

319k64 k. Operation and effect of ouster orforfeiture. Most Cited Cases

Where a city, which had exercised authority overlands annexed by a presumptively valid statute, wasousted from jurisdiction over lands by quo warranto judgment on ground that title of statute was not suffi-ciently comprehensive to embrace lands, city had andcontinued to have de facto jurisdiction to tax thoselands to pay city's operating expenses before renditionof judgment of ouster and to pay its duly authorizedmunicipal bonds. Sp.Acts 1925, cc. 11299, 11301;

F.S.A.Const. art. 3, § 16; art. 8, § 8; art. 9, §§ 3, 5.


268 Municipal Corporations 268I Creation, Alteration, Existence, and Disso-

lution 268I(A) Incorporation and Incidents of Ex-

istence 268k3 k. Power to create. Most Cited Cases

The right to establish a municipality does not

exist in individuals, but is conferred by the state.F.S.A.Const. art. 3, § 24; art. 8, § 8.



lution





268I(A) Incorporation and Incidents of Ex-istence

268k7 k. Territory which may be included.Most Cited Cases

The inhabitants of a community have no authorityto incorporate in the same municipality two distinctdetached tracts of land, and an attempt to do so is void,but a statute may incorporate into a municipality twoseparate and noncontiguous tracts.




istence 268k6 k. Bodies which may be incorporated.

Most Cited Cases

A community of people and a territory of suffi-cient area for inhabitants to have human contactscreating a community of public interest and a dutyrequiring an organized governmental agency for themanagement of their local affairs of a quasi publicnature must exist as a basis for the establishment of amunicipality under statute.




istence 268k7 k. Territory which may be included.

Most Cited Cases

The power to establish a municipality may not beexercised to incorporate an area having no residentpopulation or a very small resident population, where

area is not suitable for municipal purposes, or wherearea cannot be benefited by municipality or its publicfacilities or improvements, and cannot be needed for areasonably expected growth of municipality.

[13] Municipal Corporations 268 966(2)

268 Municipal Corporations

268XIII Fiscal Matters 268XIII(D) Taxes and Other Revenue, and

Application Thereof 268k966 Persons and Property Taxable

268k966(2) k. Property outside of citylimits. Most Cited Cases

The constitutional command, that when a mu-nicipality is abolished provision should be made forprotection of its creditors, contemplates that whenlands are withdrawn from a municipality, they shouldcontinue to be liable to taxation for municipality'sdebts unless creditors are otherwise fully protected.F.S.A.Const. art. 8, § 8.




istence 268k8 k. Special charters or acts. Most Cited

Cases

A statute incorporating lands into a municipalityis not ipso facto or prima facie unconstitutional onground that some of the lands may be adjudged to beunsuited for municipal purposes, or that some of thelands cannot be benefited by incorporation, since

those matters are within legislative judgment.



92VI(C) Determination of ConstitutionalQuestions

92VI(C)3 Presumptions and Construction asto Constitutionality

92k990 k. In general. Most Cited Cases (Formerly 92k48(1), 92k48)

Constitutional Law 92 3874(1)


92XXVII(B) Protections Provided and Dep-rivations Prohibited in General

92k3868 Rights, Interests, Benefits, or







thority 170Bk386 k. State constitutions and stat-

utes, validity and construction. Most Cited Cases (Formerly 106k366(1))

Whether a portion of a statute is sufficientlycovered by title as required by State Constitution is amatter for state, and not for federal jurisdiction. Const.art. 3, § 16.




istence 268k17 k. De facto corporations. Most Cited

Cases

Where there is a prima facie and presumptivelyvalid statutory de jure municipality or prima facie andpresumptive jurisdiction over an added area to mu-nicipality's boundaries, there may be de facto munic-ipal existence or jurisdiction; but, if there is no au-thority for conferring de jure municipal jurisdiction,there can be no de facto jurisdiction.

[23] Administrative Law and Procedure 15A

132

15A Administrative Law and Procedure 15AII Administrative Agencies, Officers and

Agents 15Ak132 k. De facto agencies, officers and

agents. Most Cited Cases

Administrative Law and Procedure 15A 321

15A Administrative Law and Procedure 15AIV Powers and Proceedings of Administrative

Agencies, Officers and Agents

15AIV(A) In General 15Ak321 k. De facto agencies, officers andagents. Most Cited Cases

Officers and Public Employees 283 40

283 Officers and Public Employees 283I Appointment, Qualification, and Tenure

283I(D) De Facto Officers or Employees 283k40 k. Existence of office or position

and de facto offices or employments. Most CitedCases

There can be no de facto officer if there is no of-fice and no authority to create an office; but, if Leg-islature has authority to create an office and by statutedefectively exercises authority, or if there is no de jureofficer, there may be a de facto officer under color of authority.

[24] Corporations and Business Organizations 101

1195

101 Corporations and Business Organizations 101III Incorporation and Organization

101III(F) Validity of Incorporation 101k1193 De Facto Corporations

101k1195 k. Nature and requisites ingeneral. Most Cited Cases

(Formerly 101k28(1))

There can be no de facto corporation unless a de jure corporation could have been created by a validstatute, or unless a de jure corporation is attempted tobe created in substantial compliance with legal au-thority.


268 Municipal Corporations 268XIII Fiscal Matters

268XIII(D) Taxes and Other Revenue, andApplication Thereof

268k966 Persons and Property Taxable 268k966(1) k. In general. Most Cited

Cases

The constitutional provision requiring munici-palities to make their own assessments for municipalpurposes on property within their limits does not for-

bid municipal taxation of land included in municipal-ity's limits by statute, even though jurisdiction beousted from that land, where rights have been acquiredpredicated upon de facto power to tax land before jurisdiction was ousted. F.S.A.Const. art. 9, § 5.








by reading the title. F.S.A.Const. art. 3, § 16.

[31] Statutes 361 120(2)

361 Statutes 361III Subjects and Titles of Acts

361k110 Titles and Provisions of Acts Relat-ing to Particular Subjects

361k120 Counties, Towns, and MunicipalCorporations

361k120(2) k. Incorporation, alteration,and dissolution of municipalities. Most Cited Cases

(Formerly 92k48(4.1), 92k48(4), 92k48)

An act adding to the area of a city the area of anabolished city and other lands not theretofore incor-porated was in its entirety prima facie and presump-tively valid, and that status remained until, in quowarranto proceedings, a portion of the act was shownaliunde and adjudged to have been illegally includedunder the restrictive title of the act. Sp.Acts 1925, c.11301; F.S.A.Const. art. 3, § 16.

[32] Judgment 228 735

228 Judgment 228XIV Conclusiveness of Adjudication

228XIV(C) Matters Concluded 228k734 Matters Not in Issue

228k735 k. In general. Most Cited Cases

A quo warranto judgment ousting a city from ju-risdiction over lands annexed by a presumptively validact, on ground that title of act was not sufficientlycomprehensive to embrace lands, was not res judicataexcept with respect to adjudged insufficiency of title,and judgment did not relieve city of its legal obliga-tions or destroy legal rights acquired while city wasexercising de facto jurisdiction over lands. Sp.Acts1925, c. 11301; F.S.A.Const. art. 3, § 16.



268XIII(C) Bonds and Other Securities, andSinking Funds

268k917 Proceedings Preliminary to Issueof Bonds

268k917(2) k. Determination of validity.

Most Cited Cases

Validating decrees adjudicate the validity of proposed issues of municipal bonds, but whether lands

over which a de jure city exercises de facto jurisdic-tion when negotiable municipal bonds are issued aresubject to taxation to pay bonds must be determinedby appropriate judicial procedure, and if lands are notsubject to municipal taxation, or if they are so locatedthat their taxation for municipal purposes would vio-late property rights secured by organic law, bothquestions may be adjudicated in appropriate pro-ceedings in which questions of city's powers and of waiver or estoppel of landowners may be presented.


92 Constitutional Law 92XXVI Equal Protection

92XXVI(C) Civil Actions and Proceedings 92k3465 k. Judgment and execution. Most

Cited Cases (Formerly 92k249(8), 92k249)

Constitutional Law 92 4008


92XXVII(E) Civil Actions and Proceedings 92k4007 Judgment or Other Determination


A quo warranto judgment ousting a city from de jure jurisdiction over an added area on ground thatarea was not covered by subject expressed in title of act attempting to include area did not deny equalprotection or due process of law to a landowner, whohad been a co-relator in quo warranto proceedings,seeking to enjoin collection of municipal taxes as-sessed against his land located in added area, since, if landowner had a right to relief, that right was notwaived or barred but could be litigated in appropriateproceedings. Sp.Acts 1925, c. 11301; Const. art. 3, §16.








268k906 k. Nature of power to issue secu-rities. Most Cited Cases

A de jure municipality cannot issue negotiablebonds for authorized municipal purposes by the exer-cise of de facto jurisdiction and refuse to compensatetherefor without violating organic law, where bondsare authorized by statute and are not issued in viola-tion of a command or prohibition of the Constitutionaffecting the authority to issue bonds or the terms orpurposes thereof.

[36] Judgment 228 735

228 Judgment 228XIV Conclusiveness of Adjudication

228XIV(C) Matters Concluded 228k734 Matters Not in Issue

228k735 k. In general. Most Cited Cases

A quo warranto judgment ousting a city of de jure jurisdiction over an added area on ground that areawas not covered by subject expressed in title to actestablishing a city's territorial limits was binding on allparties, but judgment did not adjudicate rights andobligations resulting from exercise of de facto juris-diction over lands incorporated at time when munic-ipal bonds were issued for authorized municipal pur-

poses, for payment of which city's taxing power overall lands was pledged.





268k917(2) k. Determination of validity.Most Cited Cases

If a statute embraces in the boundaries of a cityland that cannot be taxed for municipal purposeswithout violating some provision or principle of or-ganic law, that matter may be determined in appro-priate judicial proceedings, but not in bond-validatingproceedings. F.S.A.Const. art. 8, § 8.

**156 Appeal from Circuit Court, Polk County; H. C.Petteway, Judge. Touchton & Crittenden, of WinterHaven, for appellee.

Henry Sinclair, of Winter Haven, for appellants.

Touchton & Crittenden, of Winter Haven, for appel-lee.

Statement by WHITFIELD, Justice. The Constitution of Florida contains the follow-

ing:

‘The Legislature shall establish a uniform systemof county and municipal government.’ Section 24, art.

3.

‘The Legislature shall have power to establish,and to abolish, municipalities, to provide for theirgovernment, to prescribe their jurisdiction and pow-ers, and to alter or amend the same at any time. Whenany municipality shall be abolished, provision shall bemade for the protection of its creditors.’ Section 8, art.8. See amended section 6, art. 9, quoted below.

‘The Legislature shall authorize the severalcounties and incorporated cities or towns in the Stateto assess and impose taxes for county and municipal

purposes, and for no other purposes, and all propertyshall be taxed upon the principles established for Statetaxation. But the cities and incorporated towns shallmake their own assessments for municipal purposesupon the property within their limits. The Legislaturemay also provide for levying a special capitation tax,and a tax on licenses. But the capitation tax shall notexceed one dollar a year and shall be applied exclu-sively to common school purposes.’ Section 5, art. 9.

‘Each law enacted in the Legislature shall em-brace but one subject and matter properly connectedtherewith, which subject shall be briefly expressed in

the title; and no law shall be amended or revised byreference to its title only; but in such case the act, asrevised, or section, as amended, shall be re-enactedand published at length.’ Section 16, art. 3.

*341 ‘All courts in this State shall be open, sothat every person for any injury done him in his lands,goods, person or reputation shall have remedy, by due





course of law, and right and justice shall be adminis-tered without sale, denial or delay.’ Section 4, Decla-ration of Rights.

‘Every male person of the age of twenty-oneyears and upwards that shall, at the time of registra-tion, be a citizen of the United States, and that shallhave resided and had his habitation, domicile, homeand place of permanent abode in Florida for one yearand in the county for six months, shall in such countybe deemed a qualified elector at all elections under thisConstitution. Naturalized citizens of the United Statesat the time of and before registration shall produce tothe registration officers his certificate of naturalizationor a duly certified copy thereof.’ Section 1, art. 6,adopted 1894.

The word ‘male’ in the first line of this sectionwas automatically eliminated by the dominant force of the nineteenth **157 Amendment to the FederalConstitution Jan. 29, 1919. State ex rel. v. Gray, 107Fla. 73, 144 So. 349.

‘The Legislature shall have power to provide forissuing State bonds only for the purpose of repellinginvasion or suppressing insurrection, and the counties,districts or municipalities of the State of Florida shallhave power to issue bonds only after the same shallhave been approved by a majority of the votes cast inan election in which a majority of the freeholders who

are qualified electors residing in such counties, dis-tricts, or municipalities shall participate, to be held inthe manner to be prescribed by law; but the provisionsof this law shall not apply to the refunding of bondsissued exclusively for the purpose of refunding of thebonds or the interest thereon of such counties, dis-tricts, or municipalities.’ Section 6, art. 9, as amendedin 1930.

*342 The title and sections 1 and 2 of chapter11301, Sp.Acts of 1925, are as follows:

‘An Act to Establish the Territorial Limits of the

City of Winter Haven, Florida; to Abolish the Town of Florence Villa Within the Proposed New CorporateLimits of the said City of Winter Haven; to Provide forthe Succession by the City of Winter Haven to theOwnership of all Property and Assets of said Town of Florence Villa and the Liability of said City of WinterHaven for all Debts, Obligations and Franchises of said Town of Florence Villa.

‘Be It Enacted by the Legislature of the State of Florida:

‘Section 1. The City of Winter Haven, a munic-

ipal corporation under the laws of the State of Florida,shall include and have jurisdiction over all the territoryin Polk County, Florida, included in the followingboundaries, to-wit:

‘Beginning at the northeast (NE) corner of thesouthwest quarter (SW 1/4 ) of the northeast quarter(NE 1/4 ) of Section Fifteen (15), Township Twen-ty-eight (28) south, Range Twenty-six (26) east, run-ning thence south to the southwest (SW) corner of thenortheast quarter (NE 1/4 ) of the northeast quarter(NE 1/4 ) of Section Three (3), Township Twenty-nine(29) south, Range Twenty-six (26) east; thence west

two and one-half miles more or less, to the westernboundary of the Atlantic Coast Line Railwayright-of-way; thence southwesterly along saidright-of-way line to a point on the southern boundaryof the southwest quarter (SW 1/4 ) of the northwestquarter (NW 1/4 ) of Section Five (5), TownshipTwenty-nine (29) south, Range Twenty-six (26) east;thence west to the southwest (SW) corner of thesoutheast quarter (SE 1/4 ) of the northeast quarter(NE 1/4 ) of Section Six (6), Township Twenty-nine(29) south, Range Twenty-six (26) east; thence northto the northeast (NE) corner of the *343 southwestquarter (SW 1/4 ) of the northeast quarter (NE 1/4 ) of

Section Six (6), Township Twenty-nine (29) south,Range Twenty-six (26) east; thence west to thenortheast (NE) corner of the southwest quarter (SW1/4 ) of the northeast quarter (NE 1/4 ) of section One(1), Township Twenty-nine (29) south, Range Twen-ty-five (25) east; thence north to the northeast (NE)corner of the northwest quarter (NW 1/4 ) of thenortheast quarter (NE 1/4 ) of Section Twenty-five(25), Township Twenty-eight (28) south, RangeTwenty-five (25) east; thence west to a point sixhundred sixty (660) feet west of the southeast (SE)corner of the southeast quarter (SE 1/4 ) of thesouthwest quarter (SW 1/4 ) of Section Twenty-four(24), **158 Township Twenty-eight (28) south,Range Twenty-five east; thence north to the southernboundary of the northeast quarter (NE 1/4 ) of thesouthwest quarter (SW 1/4 ) of Section Twenty-four(24), Township Twenty-eight (28) south, RangeTwenty-five (25) East; thence east to the southwest(SW) corner of the northwest quarter (NW 1/4 ) of thesoutheast quarter (SE 1/4 ) of section Twenty-four





(24), Township Twenty-eight (28) south, RangeTwenty-five (25) east; thence north to the northwest(NW) corner of the northwest quarter (NW 1/4 ) of thesoutheast quarter (SE 1/4 ) of Section Twenty-four

(24), Township Twenty-eight (28) south, RangeTwenty-five (25) east; thence east to the southeast(SE) corner of the southwest quarter (SW 1/4 ) of thenorth east quarter (NE 1/4 ) of Section Twenty-four(24), Township Twenty-eight (28) south, RangeTwenty-five (25) east; thence north to the northeast(NE) corner of the southwest quarter (SW 1/4 ) of *344 the northeast quarter (NE 1/4 ) of SectionTwenty-four (24), Township Twenty-eight (28) south,Range Twenty-five (25) east; thence west to thenorthwest (NW) corner of the southwest quarter (SW1/4 ) of the northwest quarter (NW 1/4 ) of SectionTwenty-four (24), Township Twenty-eight (28) south,

Range Twenty-five (25) east; thence north to thenorthwest (NW) corner of Section Twenty-four (24),Township Twenty-eight (28) south, Range Twen-ty-five (25) east; thence west to the southwest (SW)corner of the southeast quarter (SE 1/4 ) of thesoutheast quarter (SE 1/4 ) of Section Fourteen (14),Township Twenty-eight (28) south, Range Twen-ty-five (25) east; thence north to the northwest (NW)corner of the northeast quarter (NE 1/4 ) or thenortheast quarter (NE 1/4 ) of Section Fourteen (14),Township Twenty-eight (28) south, Range Twen-ty-five (25) east; thence east to the northeast (NE)corner of Section Fourteen (14), Township Twen-ty-eight (28) south, Range Twenty-five (25) east;thence south to the northeast (NE) corner of thesoutheast quarter (SE 1/4 ) of the northeast quarter(NE 1/4 ) of Section Fourteen (14) Township Twen-ty-eight (28), south, Range Twenty-five (25) east;thence east to the Auburndale-Florence Villa Road;thence in a southerly and easterly direction along saidroad to a point on the eastern boundary of the north-west quarter (NW 1/4 ) of the southeast quarter (SE1/4 ) of Section Thirteen (13), Township Twenty-eight(28) south, Range Twenty-five (25) east; thence northto the northeast (NE) corner of the southwest quarter(SW 1/4 ) of the northeast quarter (NE 1/4 ) of SectionThirteen (13), Township Twenty-eight (28) south,

Range Twenty-five (25) east; thence east to point of beginning.

‘Sec. 2. The inhabitants comprehended withinsaid territory shall be, and they are hereby constituteda body corporate and politic, with the right to use andexercise all the powers and privileges described andset forth in the charter of the City of Winter Haven,

heretofore granted to said City and enacted by an Actof the Legislature of *345 the State of Florida, RegularSession of 1925, and all powers and privileges grantedto said City by any special act or acts of the Legisla-

ture of the State of Florida, and by the provisions of the General Statute Law of the State, relative to citiesand town, not in conflict with the said charter of saidCity.’

Sections 2935(1825) and 2936(1826), C. G. L.,contain the following:

‘It shall be lawful for the male inhabitants of anyhamlet, village or town in this State, not less thantwenty-five in number, who shall have the qualifica-tions hereinafter prescribed, to establish for them-selves a municipal government with corporate powers

and privileges as hereinafter provided. (Ch. 2047, Acts1875, § 1.)’

‘Whenever any municipal government is estab-lished, and it shall appear that there are three hundredregistered voters within the limits hereby to be des-ignated, it shall be and the same is hereby incorporatedand designated as a city, entitled to the privileges of acity. All municipal governments having a less numberof voters than those named above shall be and thesame are hereby designated and declared incorporatedtowns, entitled to the privileges and rights of incor-porated towns. (Ch. 1688, Acts 1869, § 3.)’

Other sections of the general statutes of the state,under section 24, article 3, of the Constitution, providethe method to be pursued in the establishment of mu-nicipalities by the electors of a community and alsodefine the powers, duties, and franchises of munici-palities to be applicable when not otherwise providedby law under section 8, article 8. See Sanders v.Howell, 73 Fla. 563, 74 So. 802; City of St. Petersburgv. Pinellas County Power Co., 87 Fla. 315, 100 So.509; State ex rel. v. Burr, 79 Fla. 290, 84 So. 61; Munnv. Finger, 66 Fla. 572, 64 So. 271, 51 L.R.A.,N.S.,631; Town of Enterprise v. State, 29 Fla. 128, 10 So.

740.

*346 Chapter 11299, Sp. Acts of 1925, containsthe following:

‘Sec. 88. Bonds. That the City Commission shallhave the power to provide by ordinance for the issueof negotiable bonds of said City for the purpose of















presumptively valid and in force in its entirety.

**164 The plaintiff below, appellee here, con-tends in effect that by reason of the insufficiency of

the title to chapter 11301, Sp. Acts of 1925, to coverthe portion of the statute which adds to the boundariesof the city of Winter Haven the area *359 theretoforeincorporated, that portion of the statute is invalid; thatsuch partial invalidity appears on the face of the stat-ute; that such portion of the statute was void from itsenactment because it violated section 16 of article 3,Constitution; that there can be no de facto jurisdictionof the city over such area; that taxation of plaintiff'sland in such area violates sections 3 and 5 of article 9of the State Constitution. These contentions are notwell founded, as will be shown herein. Appellee doesnot contest the validity of the municipal bonds of the

city of Winter Haven.

[2][3] Statutes and judicial judgments and decreesshould be so interpreted and applied as to effectuatethe intended purpose that is consistent with applicableprovisions of the paramount organic law; and personaland property rights, that are intended by the Constitu-tion to be secured to those lawfully claiming them,should be protected and enforced by due course of law, when no applicable express or implied provisionof the State or Federal Constitutions is thereby vio-lated. For example, when the subject of property rightsis lawfully produced or created, and rights that are

intended by the Constitution to be secured to thoselawfully claiming them are bona fide duly acquired inthe property so produced or created, such rights shouldby due course of law be protected and enforced, eventhough there be procedural or other defects, but noviolation of controlling organic law, in the creation oracquisition of such rights. See State v. City of CedarKeys, 122 Fla. 454, 165 So. 672. See, also, West v.Town of Lake Placid, 97 Fla. 127, 120 So. 361.

[4] But if a command or prohibition of the Con-stitution is violated in the creation or production of thesubjects of property or in the acquisition of interest

therein, such interests are not rights that are intendedby the Constitution to be secured, and they will not assuch be protected or enforced*360 in the courts. SeeState ex rel. Nuveen v. Greer, 88 Fla. 249, 102 So.739, 37 A.L.R. 1298.

Chapter 11299, Sp.Acts of 1925, established thecity of Winter Haven with described boundaries and

extensive municipal powers and authority includingauthority to issue municipal interest-bearing negotia-ble bonds to be sold and the proceeds thereof used forauthorized municipal improvement purposes, the

interest and principal of the bonds to be paid by nec-essary annual tax levied upon all the property withinthe city.

[5] Chapter 11301, Sp.Acts of 1925, abolished theadjacent town of Florence Villa and added its area tothat of the city of Winter Haven, together with anadditional area including plaintiff's land, not thereto-fore in any municipality.

After June 2, 1925, the effective date of chapter11301, the city of Winter Haven, pursuant to its stat-utory charter authority, issued municipal inter-

est-bearing negotiable bonds for authorized municipalpublic improvement purposes. The bonds in effectstate that all provisions of law were complied with,and pledged the faith and credit of the city for thepayment of the bonds. The statute authorized the tax-ation of all the lands within the city limits to pay thebonds. The bonds were duly validated by decrees of the circuit court, a court of general jurisdiction, actingunder express statutory authority consistent with theconstitution. No appeals were taken from the validat-ing decrees. The statute made all citizens and taxpay-ers of the city parties to the validating proceedings.None of them contested the validation or the issue of

the bonds, and the decrees of validation became resadjudicata. The proceeds of the bonds were used forauthorized municipal public improvements, some of the improvements being in the added area which em-braces plaintiff's land. Taxes were annually leviedupon all the taxable lands in the city of Winter Haven,as described*361 by chapter 11301, including the areaembracing plaintiff's land, to pay the interest andprincipal of the bonds and operating expenses.

On March 7, 1934, after the bonds were validatedand sold and the municipal public improvements weremade, the city of Winter Haven was by quo warranto

judgment ousted from all jurisdiction and authorityover the stated added area embracing plaintiff's land.State ex rel. v. City of Winter Haven, 114 Fla. 199,154 So. 700.

Thereafter the city of Winter Haven ceased tolevy taxes on the area from which the jurisdiction of the city had been ousted by the quo warranto judg-







ment, the municipal jurisdiction and authority exer-cised over such lands by virtue of the prima facie andpresumptively valid statute may be de facto jurisdic-tion and authority, binding on citizens and taxpayers

for the purposes of issuing bonds for *364 authorizedmunicipal purposes, and levying duly authorized tax-es; since, under section 8, article 8 of the Constitution,the Legislature has power to incorporate lands, and thelands were intended to be included, though they werenot legally included in the city limits, because of thedefective title of the act. In such case, the portion of the statute covering the added area of lands would beprima facie and presumptively valid until adjudged tobe invalid to confer de jure jurisdiction, because of thedefective or illegal exercise of the power which theLegislature had, to include lands in the city limits andauthority, though the city would have de facto juris-

diction over the area because of the exercise of itsprima facie jurisdiction and authority. But if the Leg-islature had no power to include lands within the limitsand authority of the city, there could be no de jure orde facto municipal authority of the city over the lands.See State ex rel. v. Walthall, 124 Fla. 866, 169 So.552; State ex rel. v. City of Cedar Keys, 122 Fla. 454,165 So. 672; Ocean Beach Heights v.Brown-Crummer Inv. Co., 58 S.Ct. 385, 82 L.Ed.——, filed Jan. 17, 1938.

Chapter 11299, §§ 63, 88, authorizes the issue of municipal bonds not to exceed 10 per cent. of the

value of the taxable property in the city, and requiresthe levy of taxes upon lands that are necessary to paythe bonds. Such levy is made ‘in pursuance of law’under section 3, article 9 of the Constitution; and thestatute is sufficiently definite and specific in its limi-tations as to the issue of bonds and taxation so as not tobe an unlawful delegation of legislative power undersection 5, article 9 of the Constitution. See Rountree v.State, 102 Fla. 246, 135 So. 888. The taxing powerconferred by chapter 11299 is essentially unlike thatconferred in Stewart v. Daytona & New Smyrna InletDist., 94 Fla. 859, 114 So. 545.

*365 In view of the above statements, it is clearthat under chapters 11299 and 11301, Sp.Acts of 1925, the city of Winter Haven is a de jure munici-pality; that the city had authority to issue the bonds forthe authorized municipal purposes; and, in order topay the bonds, had and has authority to levy and col-lect an appropriate tax upon all the land that was primafacie and presumably legally within the city limits

under chapter 11301, the authority after the ouster judgment being de jure as to all lands legally in thecity limits, and de facto, but effectual as to appropriatetaxation of the land in the area from which the juris-

diction of the city has been ousted by the quo warranto judgment, which area includes plaintiff's land, suchtaxation since 1934 being to pay amounts due on thebonds of the city. The quo warranto judgment of ouster was rendered years after the city assumed andexercised jurisdiction over all the territory describedin chapter 11301, and after the bonds had been vali-dated and sold and the proceeds thereof used in theauthorized municipal improvements made in the city,some of such improvements being in the area in whichplaintiff's land is located.

This conclusion is not intended to affect, and

does not affect, the quo warranto judgment of ouster,relating as it does to the de jure jurisdiction of the cityof Winter Haven over the stated added area; but theconclusion is that, under the facts shown, the originalprima facie and presumptively de jure jurisdiction andultimate de facto jurisdiction of the city of WinterHaven over the land affected by the judgment of ouster, and the exercise of such jurisdiction and au-thority before the ouster judgment, give the city legalauthority to levy and collect appropriate and just taxesupon plaintiff's land since the judgment of ouster, topay its proper share of the legal bond obligations of the city. The tax levies made before the ouster judg-

ment apparently*366 were for operating expenses aswell as for paying bonds issued by the city. A furtherdiscussion with citations of authority might not beinappropriate.

[9] The right to establish a municipality does notexist in individuals but is conferred by the statethrough statutes that accord with organic law. Rob-inson v. Jones, 14 Fla. 256. The Constitution providesfor the establishment of municipalities under authoritygiven by general laws and by statutes dealing withparticular municipalities. Section 24, article 3; section8, article 8. Under section 24, article 3, the generalstatutes provide that **167 a municipality may beestablished by the ‘inhabitants of any hamlet, villageor town in this State,’ not less than twenty-five innumber, by complying with the requirements of thestatute. When duly established and organized, themunicipality has stated powers, authority, duties, andprivileges conferred by the general statutes regulatingthe establishment, powers, jurisdiction, and privileges









enactment. Ordinarily and generally when a statuteviolates section 16, article 3, it appears by a consid-eration of the face of the statute with the organic sec-tion, as in Carr v. Thomas, 18 Fla. 736; Wade v. At-

lantic Lumber Co., 51 Fla. 628, 41 So. 72; PrairiePebble Phosphate Co. v. Silverman, 80 Fla. 541, 86So. 508; State v. Palmes, 23 Fla. 620, 3 So. 171; Webster v. Powell, 36 Fla. 703, 18 So. 441; Ex parteKnight, 52 Fla. 144, 41 So. 786, 120 Am.St.Rep. 191; Ex parte Gilletti, 70 Fla. 442, 70 So. 446.

In this case a part of chapter 11301 violates thefirst clause of section 16, article 3, in that the descrip-tion of *372 the boundaries of the city of Winter Ha-ven as contained in chapter 11301 does not show on itsface that it embraces more area than that which wastheretofore in the city plus the added area that had

been included in the abolished town of Florence Villa,which two latter areas alone were covered by the title.That an area not theretofore incorporated was added tothe city limits by the contents of chapter 11301, butnot covered by the title of the act, was shown by evi-dence aliunde chapter 11301, in the quo warrantoproceedings, and a judgment was rendered ousting thecity from jurisdiction and authority over the addedarea. The statutory descriptions of the areas thereto-fore included in the city of Winter Haven and theboundaries of the town of Florence Villa had to beexamined before it appeared that chapter 11301 con-tained descriptions of land not covered by the title of

the act; viz., description of areas that had not been inthe city or in Florence Villa.

[19][20] When a question is duly presented as towhether a portion of a statute is embraced in the subject expressed in the title of the statute, or as towhether it is matter properly connected with the subject expressed in the title of the statute, the question isto be determined as a matter of law; but prima facieand presumptively such portion is sufficiently coveredby the title of the act, at least unless it is patently ob-vious that it is not, which affords notice to everyone;and if such portion of the statute does not appear bythe face of the statute, considered with the Constitu-tion, to be not covered by the title of the act within theintent and meaning of section 16, article 3 of theConstitution, it must be shown by evidence aliunde inappropriate judicial proceedings, as was done in Statev. City of Winter Haven, 114 Fla. 199, 154 So. 700. Inthe Nuveen and Weinberger Cases, the unconstitu-tionality of the *373 statute appeared on the face of the

law considered with the Constitution.

[21] In such cases whether the controverted por-tion of a statute is, or is not, sufficiently covered by the

title of the statute, as required by the State Constitu-tion, is a matter for State, and not for federal, juris-diction. See Chicago, M. St. P. & P. R. Co. v. Risty,276 U.S. 567, 48 S.Ct. 396, 72 L.Ed. 703; Forsyth v.Hammond, 166 U.S. 506, 17 S.Ct. 665, 41 L.Ed. 1095.

In the North Miami Case, Ocean Beach Heights,et al. v. Brown-Crummer Inv. Co., 58 S.Ct. 385, 82L.Ed. ——, the general statutes gave the inhabitants of the community authority to incorporate land, but notnoncontiguous land. In attempting to incorporatenoncontiguous lands, the inhabitants did not merelydefectively exercise their authority, but they assumed

to exercise an authority not given them, viz., to in-corporate noncontiguous lands. Town of Enterprise v.State, 29 Fla. 128, 10 So. 740.

In this case the Constitution gave the Legislatureauthority to incorporate lands whether contiguous ornot; but the Legislature must exercise its authority bystatute enacted as required by section 16, article 3 of the Constitution. Chapter 11301 incorporated lands asauthorized by section 8, article 8, Constitution, butsome of the lands so incorporated were not embracedin **170 the title of the act. This was a defective ex-ercise of the power conferred by section 8, article 8 of

the Constitution; but the statute did not assume toinclude lands it had no authority to incorporate.

Thus in the North Miami Case, supra, there wasno authority of the inhabitants to incorporate noncon-tiguous lands, while in this case the statute, chapter11301, was a defective exercise by the Legislature of its power to incorporate all the lands, *374 by notmaking the title sufficiently comprehensive to includea part of the lands described in the body of the act.There was no statutory validation or incorporation inthe North Miami Case, as in Schultz v. State, 80 Fla.564, 86 So. 428. See, also, State v. Eddy, 95 Fla. 978,

117 So. 377. In this case there was a statutory incor-poration of lands; and the defect in incorporating apart of the land did not go to the power to incorporatethe land, but to the form of the enactment; and thedefect did not appear on the face of the statute, but hadto be shown aliunde in the quo warranto proceedings.

Even if the portion of the lands included in









Reversed and remanded.

ELLIS, C. J., and TERRELL, BROWN, BUFORD,and CHAPMAN, JJ., concur.

On Petition for Rehearing. PER CURIAM.

[29] In a petition for rehearing it is suggested,among other matters, that in the quo warranto case,State ex rel. v. City of Winter Haven, 114 Fla. 199,154 So. 700, the court held that the title to chapter11301, Sp.Acts of 1925, was misleading and con-tained nothing to apprise the Legislature or the publicthat other lands than those included in the old city of Winter Haven and the adjacent former town of Flor-ence Villa were being included within the boundariesof the city of Winter Haven; and that it therefore ap-

pears the Legislature ‘did not intend to include theexcluded lands, nor was the public, including bond-holders, misled by the inclusion thereof.’

As shown by the body of chapter 11301, theLegislature did manifest an intent to include in theboundaries of the city of Winter Haven the area inwhich plaintiff's land *380 is located; and that legis-lative intent would be the law, if the Legislature hadnot violated section 16, article 3 of the Constitution,by making the title of the act too restrictive to expressthe entire subject of the act. The restrictive title ren-dered invalid the portion of the body of the act which

is not covered by the subject expressed in the title.Such partial invalidity does not go to the power of theLegislature to include the land in the city, but to thecontents of the title as used in expressing the subject of the act by which the power of the Legislature is exer-cised.

[30] Section 16, article 3 of the Constitution, doesnot forbid or limit particular subjects of legislation, asdo other organic sections, but commands that ‘eachlaw enacted in the Legislature shall embrace but onesubject and matter properly connected therewith,which subject shall be briefly expressed in the title’

etc.

In enacting laws every legislative bill has a titlewhich is designed to indicate the subject that is em-braced in the proposed law; and the quoted organiccommand requires the title to briefly express the subject of the pending enactment so that the nature of thesubject of the act may be truly indicated by reading the

title. See State ex rel. v. Green, 36 Fla. 154, 18 So.334.

[31] Chapter 11301, Sp.Acts of 1925, in the body

of the act, amends chapter 11299, Sp.Acts of 1925, byadding to the area of the city of Winter Haven underthe latter act, the area of the abolished town of Flor-ence Villa and other lands not theretofore incorpo-rated. The act was in its entirety prima facie and pre-sumptively a valid enactment. This status of the statuteremained until in quo warranto proceedings a portionof the act adding lands to the city boundaries wasshown aliunde and adjudged to have been illegallyincluded in the statute under its restrictive title.

*381 The body of chapter 11301, Sp.Acts of 1925, amending chapter 11299, so as to add areas to

the city boundaries, contained descriptions of landsdesigned to be added to the boundaries of the city of Winter Haven under a title which casually consideredapparently covered the lands described in chapter11301 amending chapter 11299, as being the area of the city. Evidence aliunde chapter 11301 was requiredto show the title of the act was too restricted to coverall the lands described in the act as being the bounda-ries of the city. This was not merely ‘color of law’ asto the boundaries of the city under the act, but the actwas prima facie and presumptively a valid enactmentin its entirety, and the city exercised defacto**173 jurisdiction over the res pursuant to chapter 11301.

[32] In the quo warranto case ( State ex rel. v. Cityof Winter Haven, 114 Fla. 199, 154 So. 700) this courtaffirmed the judgment of partial ouster after findingupon a showing aliunde that the title to chapter 11301was too restrictive to express the entire subject em-braced in the body of the act. It was not determinedwhether any of the lands illegally included in the citylimits by chapter 11301 could legally be subjected tomunicipal jurisdiction because of their location orcharacter. Questions as to the exercise of de facto jurisdiction and the consequences thereof were notdetermined by this court in that action, and the judg-

ment as affirmed is not res adjudicata except as to theadjudged insufficiency of the title of chapter 11301 toembrace the added area which includes plaintiff'sland.

The quo warranto judgment ousted the de jurecity from further exercising the asserted de jure juris-diction over the area including plaintiff's land, under









98 S.Ct. 694 Page 2

434 U.S. 412, 98 S.Ct. 694, 16 Fair Empl.Prac.Cas. (BNA) 502, 15 Empl. Prac. Dec. P 8041, 54 L.Ed.2d 648 (Cite as: 434 U.S. 412, 98 S.Ct. 694)


78k1585 Attorney Fees 78k1592 k. Awards to Defendants; Frivo-

lous, Vexatious, or Meritless Claims. Most Cited

Cases

(Formerly 78k416, 78k46(27), 78k46)

District court may, in its discretion, award attor-

neys fees to prevailing party in a Civil Rights Act case

upon a finding that the plaintiff's action was frivolous,

unreasonable, or without foundation, even though not

brought in bad faith. Civil Rights Act of 1964, §

706(k) as amended 42 U.S.C.A. § 2000e-5(k).

[5] Civil Rights 78 1592

78 Civil Rights 78IV Remedies Under Federal Employment Dis-

crimination Statutes 78k1585 Attorney Fees

78k1592 k. Awards to Defendants; Frivo-


Cases

(Formerly 78k415, 78k46(26), 78k46)

Even though bad faith is not a prerequisite to

award of attorney's fees to prevailing defendant, if

plaintiff is found to have brought civil rights action or

to have continued such an action in bad faith, there

will be an even stronger basis for charging him with

attorneys fees incurred by the defense. Civil Rights

Act of 1964, § 706(k) as amended 42 U.S.C.A. §2000e-5(k).






Cases

(Formerly 78k415, 78k46(26), 78k46)

Although district court may consider distinctions

between Equal Employment Opportunity Commission

and private plaintiffs in determining the reasonable-

ness of the Commission's litigation efforts, there is no

basis for applying a different standard to the decision

to award attorneys fees to the prevailing defendant

when the EEOC is the losing plaintiff. Civil Rights

Act of 1964, § 706(k) as amended 42 U.S.C.A. §

2000e-5(k).






Cases

(Formerly 78k416, 78k46(27), 78k46)

Even though Equal Employment Opportunity

Commission did not bring action against employer

until almost two years after 1972 amendment to the

Civil Rights Act which authorized it to sue in its own

name on charges pending on the effective date of the

amendments, district court did not abuse its discretion

in determining that the EEOC's action was not without

foundation because of the reasonableness of the

EEOC's determination that the action was pending at

the time of the 1972 amendments so that district court

did not err in refusing to award attorneys fees to the

employer when it prevailed on the ground that the

complaint had not been pending at the time of the

1972 amendments. Equal Employment Opportunity

Act of 1972, § 14, 42 U.S.C.A. § 2000e-5 note; Civil

Rights Act of 1964, § 706(k) as amended 42 U.S.C.A.§ 2000e-5(k).

**695 *412 Syllabus FN*

FN* The syllabus constitutes no part of the

opinion of the Court but has been prepared by

the Reporter of Decisions for the conven-

ience of the reader. See United States v. De-

troit Timber & Lumber Co., 200 U.S. 321,

337, 26 S.Ct. 282, 50 L.Ed. 499.

Two years after a racial discrimination charge

under Title VII of the Civil Rights Act of 1964 had

been filed against petitioner company, respondent, the

Equal Employment Opportunity Commission

(EEOC), notified the complainant that its conciliation

efforts had failed and that she had the right to sue the

company, which she did not **696 do. Almost two

years later, § 14 of the 1972 amendments to Title VII

authorized the EEOC to sue in its own name on



98 S.Ct. 694 Page 3

434 U.S. 412, 98 S.Ct. 694, 16 Fair Empl.Prac.Cas. (BNA) 502, 15 Empl. Prac. Dec. P 8041, 54 L.Ed.2d 648 (Cite as: 434 U.S. 412, 98 S.Ct. 694)


charges “pending” with the EEOC on the effective

date of the amendments. The EEOC then sued peti-

tioner on complainant's charge and the District Court

granted petitioner's motion for summary judgment on

the ground that the charge had not been “pending” atthe time of the 1972 amendments. The company then

petitioned for the allowance of attorney's fees against

the EEOC pursuant to § 706(k) of Title VII, which

authorizes a district court in its discretion to allow the

prevailing party a reasonable attorney's fee. Finding

that the EEOC's action in bringing the suit was not

“unreasonable or meritless” and that its statutory in-

terpretation of § 14 was not “frivolous,” the District

Court ruled that an award to petitioner of attorney's

fees was not justified. The Court of Appeals affirmed.

Held :

1. Although a prevailing plaintiff in a Title VIIproceeding is ordinarily to be awarded attorney's fees

by the district court in all but special circumstances, a

prevailing defendant is to be awarded such fees only

when the court in the exercise of its discretion has

found that the plaintiff's action was frivolous, unrea-

sonable, or without foundation. Pp. 697-701.

(a) There are at least two strong equitable con-

siderations favoring an attorney's fee award to a pre-

vailing Title VII plaintiff that are wholly absent in the

case of a Title VII defendant, viz. the plaintiff is

Congress' chosen instrument to vindicate “a policy

that Congress considered of the highest priority,” Newman v. Piggie Park Enterprises, 390 U.S. 400,

402, 88 S.Ct. 964, 19 L.Ed.2d 1263, and when a dis-

trict court awards counsel fees to a prevailing plaintiff,

it is awarding them against a violator of federal law.

Pp. 698-699.

*413 b) No statutory provision would have been

necessary had an award of attorney's fees to a pre-

vailing defendant been based only on the plaintiff's

bad faith in bringing the action, for even under the

American common-law rule (which ordinarily does

not allow attorney's fees to the prevailing party) such

fees can be awarded against a party who has pro-ceeded in bad faith. P. 699.

2. The District Court properly applied the fore-

going standards and did not abuse its discretion in

concluding that an award to petitioner of attorney's

fees was not justified. P. 701.

550 F.2d 949, affirmed. Thomas S. Martin, Washington, D. C., for respond-

ent.

William W. Sturges, Charlotte, N. C., for petitioner.

Mr. Justice STEWART delivered the opinion of the

Court. Section 706(k) of Title VII of the Civil Rights

Act of 1964 provides:

“In any action or proceeding under this title the

court, *414 in its discretion, may allow the prevailing

party . . . a reasonable attorney's fee . . . .”FN1

FN1. Section 706(k) provides in full: “In any

action or proceeding under this title the court,

in its discretion, may allow the prevailing

party, other than the Commission or the

United States, a reasonable attorney's fee as

part of the costs, and the Commission and the

United States shall be liable for costs the

same as a private person.” 78 Stat. 261, 42

U.S.C. § 2000e-5(k).

The question in this case is under what circum-

stances an attorney's fee should be allowed when the

defendant is the prevailing party in a Title VII action-a

question about which the federal courts have ex-

pressed divergent views.

I Two years after Rosa Helm had filed a Title VII

charge of racial discrimination against the petitioner

Christiansburg Garment Co. (company), the Equal

Employment Opportunity Commission notified her

that its conciliation efforts had failed and **697 that

she had the right to sue the company in federal court.

She did not do so. Almost two years later, in 1972,

Congress enacted amendments to Title VII.FN2

Section

14 of these amendments authorized the Commission

to sue in its own name to prosecute “charges pending

with the Commission” on the effective date of the

amendments. Proceeding under this section, the

Commission sued the company, alleging that it had

engaged in unlawful employment practices in viola-

tion of the amended Act. The company moved for

summary judgment on the ground, inter alia, that the

Rosa Helm charge had not been “pending” before the

Commission when the 1972 amendments took effect.

The District Court agreed and granted summary













Page 1

397 So.2d 352 (Cite as: 397 So.2d 352)


District Court of Appeal of Florida, First District. Ernest ELLISON, Auditor General of the State of

Florida, Appellant, v.

David L. REID, Appellee.

No. VV-27. April 8, 1981.

Property appraiser sought declaratory judgmentconcerning Auditor General's determination that ap-

praiser's use of public funds to pay for attorney feesincurred by him in successfully defending charges of official misconduct was improper. The Circuit Court,Leon County, Charles E. Miner, Jr., J., entered finalsummary judgment declaring that such use of publicfunds was proper, and Auditor General appealed. TheDistrict Court of Appeal, First District, Shivers, J.,held that use of public funds to pay for attorney feesincurred in defending charges that appraiser engagedin official misconduct while attending Department of Revenue's training program, which was intended toupgrade skills of assessment personnel, was proper.

Affirmed.

West Headnotes

[1] Officers and Public Employees 283 119

283 Officers and Public Employees 283III Rights, Powers, Duties, and Liabilities

283k119 k. Actions by or Against Officers andEmployees. Most Cited Cases

Generally, public officers are entitled to a defenseat expense of public in a lawsuit arising from perfor-mance of officers' official duties and while serving apublic purpose.

[2] Counties 104 73

104 Counties 104III Officers and Agents

104k68 Compensation 104k73 k. Reimbursement of Expenses.

Most Cited Cases

County property appraiser's use of public funds topay for attorney fees incurred by him in successfullydefending charges that he engaged in official mis-conduct while attending Department of Revenue'straining program, which was intended to upgradeskills of assessment personnel, was proper. West'sF.S.A. §§ 195.002, 195.087.

*353 John L. Berry and Jackson D. Ingram, Talla-hassee, for appellant.

James R. Rich, and J. Elliott Messer and James C.Hauser, of Thompson, Messer, Rhodes, Vickers &Hart, Tallahassee, for appellee.

Jim Smith, Atty. Gen., and Frank A. Vickory, Asst.Atty. Gen., amicus curiae.

SHIVERS, Judge. Auditor General appeals a final summary judg-

ment holding appellee property appraiser properlyexpended public funds for payment of attorney fees

incurred by him in successfully defending charges of official misconduct before the Florida Ethics Com-mission. We affirm.

In January 1975, a former employee of the PalmBeach County Property Appraisers Office filed acomplaint against appellee property appraiser with theFlorida Ethics Commission, alleging appellee im-properly gave examination papers to his employeeswhile attending a training program sponsored by theDepartment of Revenue pursuant to Section 195.002,Florida Statutes (1973). Additionally, the complaintalleged appellee plagiarized an appraisal report in

order to obtain a professional property appraiser'sdesignation.

When the complaint was filed, there were noadministrative rules or procedures governing theEthics Commission. We issued a writ of prohibitionagainst the Commission hearing the complaint in theabsence of established rules of procedure. After the







Page 2

423 So.2d 974 (Cite as: 423 So.2d 974)


public official subjected to attack either in civil orcriminal proceeding where conduct complained of arises out of or in connection with performance of hisofficial duties; such obligation arises independent of

statute, ordinance, or charter, and is not subject todiscretion of keepers of city coffers.



268V(A) Municipal Officers in General 268k166 Authority and Powers

268k168 k. Mayor or other chief execu-tive. Most Cited Cases

(Formerly 268k46)

Under city charter granting mayor police power tosee that charter, ordinances, law, and rules of city werecomplied with, and to see that peace, good order,safety, and good morals were preserved within city,mayor possessed authority to release arrestee on hisown recognizance or otherwise.




268k163 k. Reimbursement of expend-itures. Most Cited Cases

Municipal Corporations 268 170


268V(A) Municipal Officers in General 268k170 k. Duties and liabilities. Most

Cited Cases

Mayor who was found innocent of threatening

officer, leaving only allegation that he obtained ar-restee's release by virtue of his power as mayorgranted in city charter, acted in his official capacity inobtaining such release and such actions were author-ized by public body; and thus, city was obligated topay mayor's attorney fees for defending againstcharges, and city counsel could not abandon his legaldefense simply because they disapproved of his ac-

tions.

*975 David R. Mackenzie, Lauderhill, for appellant.

Philip S. Shailer of Shailer, Purdy & Jolly, FortLauderdale, for appellees Dan Pearl, William “Bill”Colon, Lawrence “Larry” Hoffman, Steven W. Eff-man and John Montgomery, as members of and con-stituting the City Council of the City of Sunrise, Fla.

HERSEY, Judge. The mayor of the City of Sunrise, Florida, appeals

from a declaratory judgment which determined thatthe city had no duty to pay attorneys' fees incurred bythe mayor in his successful defense against a felonyindictment.

The indictment charged the mayor with corrup-tion by threat against a public servant. Appellant'sbrief succinctly states the circumstances which led tothe indictment.

Appellant testified that he happened to be at theSunrise Musical Theatre when he observed policeofficers of the City of Sunrise arresting a young manthe Mayor recognized and knew to be a resident of the City of Sunrise.

Appellant then testified that he spoke to the lieu-

tenant in charge of the detail and asked if the boycould be released in his father's custody withouthaving to post a FIVE THOUSAND ($5,000.00)DOLLAR bond.

The indictment alleges that at this point threatswere made by Appellant to secure the release of theyoung man.

The Appellant went on to testify that he then wentto the police station and called the City Attorney of the City of Sunrise to ask if he (Appellant) had theauthority to release him on his own recognizance

through his father.

Based upon his conversation with the City At-torney, the Appellant, as Mayor of the City, releasedthe young man on his own recognizance.

Subsequent to these events the Appellant was in-dicted.





Page 4

423 So.2d 974 (Cite as: 423 So.2d 974)


attorney refused to act or was incapable of, or wasdisqualified from, acting.

Accord, Waigand v. City of Nampa, 64 Idaho 432,

133 P.2d 738 (1943); Braslow v. Barnett, 74Misc.2d 26, 343 N.Y.S.2d 819 (Dist.Ct.1973);Krahmer v. McClafferty, 282 A.2d 631 (Su-per.Ct.Del.1971); see City of North Miami Beach v.

Estes, 214 So.2d 644 (Fla. 3d DCA 1968), cert.disch., 227 So.2d 33 (Fla.1969); cf. Shuler v. School

Board of Liberty County, 366 So.2d 1184 (Fla. 1stDCA 1978), cert. dismissed, 368 So.2d 1373(Fla.1979).

Subsequently the First District Court of Appealapplied the principle in similar fashion. Ellison v.

Reid, 397 So.2d 352 (Fla. 1st DCA 1981).

[4] These cases establish that a municipal corpo-ration or other public body is obligated to furnish orpay fees for counsel to defend a public official subjected to attack either in civil or criminal proceedingswhere the conduct complained of arises out of or inconnection with the performance of his official duties.This obligation arises independent of statute, ordi-nance or charter. It is not subject to the discretion of the keepers of the city coffers.

[5][6] The revised home rule charter of the City of Sunrise provides, in pertinent part:

Section 4.04 Mayor: Powers and Duties

(1) The Mayor shall serve in such capacity on afull-time basis.

(2) The Mayor shall serve as Chief ExecutiveOfficer of the city and shall see that the provisionsof the charter, ordinances, laws and rules of the cityare complied with and enforced and may use thepolice power of the city for such purposes and shallsee that peace, good *977 order, safety and goodmorals are preserved within the city.

Section 4.04 Charter Officers: City Clerk, LegalOfficer, Chief of Police

(4) Chief of Police. The Chief of Police shall bethe head of the Police Department and shall be re-sponsible to the Mayor, and shall be responsible for

the prevention and control of crime and safety andsecurity of the city and its citizens.

John Lomelo, Jr., as a private citizen, had no right

or authority to interfere with a lawful arrest in pro-gress. In his capacity as mayor, however, he possessedauthority to release an arrestee on his own recogni-zance or otherwise. Thus it was as mayor that hesought and effectuated the arrestee's release. The in-dictment alleged that in so doing he violated a criminalstatute. Obviously he had no right to threaten the of-ficer or the officer's family. Such conduct would con-stitute a gross abuse of his power and office. However,he was found innocent of that charge. The remainingfacts indicate that he obtained an arrestee's release byvirtue of his power as mayor granted in the city char-ter. Thus he clearly acted in his official capacity and

such actions were authorized by the public body. If thecity council was or is displeased with his activitiesother remedies are available. They may not abandonhis legal defense simply because they disapprove of his actions.

The trial court found no abuse of discretion in therefusal of the City Council of the City of Sunrise topay appellant's attorneys' fees. Since we conclude thatappellees have no such discretion under these cir-cumstances, we reverse and remand for the entry of afinal judgment requiring payment by the City of Sun-rise of the legal fees in issue.

REVERSED AND REMANDED WITH DI-RECTIONS.

BERANEK and DELL, JJ., concur.

Fla.App. 4 Dist.,1982. Lomelo v. City of Sunrise 423 So.2d 974

END OF DOCUMENT



Page 1

48 So.3d 811, 35 Fla. L. Weekly S675 (Cite as: 48 So.3d 811)


Supreme Court of Florida. MICCOSUKEE TRIBE OF INDIANS OF FLORI-

DA, etc., Appellant, v.

SOUTH FLORIDA WATER MANAGEMENTDISTRICT, etc., et al., Appellees.

New Hope Sugar Company, et al., Appellants, v.

South Florida Water Management District, etc., et al.,Appellees.

Nos. SC09-1817, SC09-1818. Nov. 18, 2010.

Background: Water management district soughtvalidation of proposed issuance of certificates of par-ticipation (COPs) in order to finance land purchase.The Circuit Court, Palm Beach County, Donald W.Hafele, validated COPs. Defendant sugar companyand intervenor Indian tribe appealed.

Holdings: The Supreme Court, Quince, J., held that: (1) purchase of property by district served publicpurposes, thus meeting requirements of state consti-

tutional provision prohibiting use of state's taxingpower or credit to aid private entity or person; (2) issuance of COPs by district was not a pledge of district's credit and thus only a public purpose ratherthan a paramount public purpose was required to beshown in order for issuance to be constitutional; (3) local bond referendum was not required under stateconstitution for issuance of COPs; but (4) district could not constitutionally include undermaster lease any lands that were financed throughpledge of district's ad valorem taxing power; and (5) no public purpose was shown for option to pur-chase further land, and thus COPs could not be issuedto cover expense of option.

Affirmed in part and reversed in part.

Lewis, J., concurred and filed opinion.

West Headnotes






Judicial inquiry in a bond validation proceeding,both at the trial court and the Supreme Court, is lim-

ited to determining: (1) whether a public body has theauthority to issue the subject bonds; (2) whether thepurpose of the obligation is legal; and (3) whether theauthorization of the obligation complies with the re-quirements of law.

[2] Appeal and Error 30 893(1)

30 Appeal and Error 30XVI Review

30XVI(F) Trial De Novo 30k892 Trial De Novo

30k893 Cases Triable in Appellate

Court 30k893(1) k. In general. Most CitedCases

Appeal and Error 30 1010.1(4)


30XVI(I) Questions of Fact, Verdicts, andFindings

30XVI(I)3 Findings of Court 30k1010 Sufficiency of Evidence in

Support

30k1010.1 In General 30k1010.1(4) k. Competent orcredible evidence. Most Cited Cases

Appeal and Error 30 1010.1(6)




Page 2



30XVI(I) Questions of Fact, Verdicts, andFindings

30XVI(I)3 Findings of Court 30k1010 Sufficiency of Evidence in

Support 30k1010.1 In General

30k1010.1(6) k. Substantial evi-dence. Most Cited Cases

Supreme Court reviews the trial court's findingsof fact for substantial competent evidence and itsconclusions of law de novo.






Final judgment of validation of certificates of participation (COPs) comes to the Supreme Courtclothed with a presumption of correctness.

[4] Appeal and Error 30 901


30XVI(G) Presumptions 30k901 k. Burden of showing error. Most

Cited Cases

Appellants have the burden of demonstrating thatthe record and evidence fail to support the lowercourt's conclusions.

[5] Water Law 405 1027

405 Water Law 405II Comprehensive Water Resource Planning

and Management in General 405II(A) In General

405k1026 State or District Water Plans andManagement

405k1027 k. In general. Most CitedCases

Water Law 405 1035


and Management in General 405II(B) Districts, Agencies, and Other Ad-

ministrative Authorities 405k1035 k. Powers, proceedings and re-

view. Most Cited Cases

Factual findings of trial court in order validatingcertificates of participation (COPs) bond issue toallow water management district to purchase landwere not incomplete simply because trial court failedto consider economic feasibility of project or recog-nize that project proceeds would not be used to financeinfrastructure projects on land; economic feasibility of plan was beyond scope of judicial review in bondvalidation proceeding.






The function of a validation proceeding is merelyto settle the basic validity of the securities and thepower of the issuing agency to act in the premises; itsobjective is to put in repose any question of law or factaffecting the validity of the bonds. West's F.S.A. §75.01 et seq.

[7] Water Law 405 1035

405 Water Law

405II Comprehensive Water Resource Planningand Management in General

405II(B) Districts, Agencies, and Other Ad-ministrative Authorities

405k1035 k. Powers, proceedings and re-view. Most Cited Cases

Water management district has authority to ac-



Page 3



quire lands to further the objective of conserving andprotecting water and water-related resources. West'sF.S.A. §§ 373.019(26), 373.139(1), 373.584(1, 2),(4)(b).

[8] Water Law 405 1035





Evidence supported finding of public purpose inissuance of certificates of participation (COPs) toallow water management district to purchase land,where district identified the 73,000 acres to be pur-chased, who land would be leased to, what waterstorage and treatment projects the land would even-tually house, and specific various projects and uses foreach parcel of the 73,000 acres, and the court heardtestimony from numerous expert witnesses, consid-ered numerous evidentiary materials, and clarifiedtestimony of witnesses. West's F.S.A. § 373.584(2),(4)(b).

[9] States 360 119

360 States 360IV Fiscal Management, Public Debt, and Se-

curities 360k119 k. Limitation of use of funds or

credit. Most Cited Cases

Water Law 405 1029


and Management in General 405II(A) In General

405k1026 State or District Water Plans andManagement 405k1029 k. Goals and objectives. Most

Cited Cases

Water Law 405 1035

405 Water Law

405II Comprehensive Water Resource Planningand Management in General



Purchase of property by water management dis-trict served public purposes of furthering Evergladesrestoration and management of water resources, thusmeeting requirements of state constitutional provisionprohibiting using state's taxing power or credit to aid aprivate entity or person in action challenging issuanceof certificates of participation (COPs) to fund district'spurchase of land; district would retain title to landsacquired, and land would be leased back to seller foragricultural operations in order to generate revenues

and maintain land until district could construct infra-structure projects required for water storage andtreatment for Everglades restoration. West's F.S.A.Const. Art. 7, § 10.

[10] States 360 119




Basic test for determining whether an expenditureof public funds violates state constitutional provisionprohibiting using state's taxing power or credit to aid aprivate entity or person is whether such expenditure ismade to accomplish a public purpose. West's F.S.A.Const. Art. 7, § 10.

[11] States 360 119




Water Law 405 1035


and Management in General



Page 4





If a water management district has used either itstaxing power or pledge of credit to support issuance of bonds, the purpose of the obligation must serve aparamount public purpose and any benefits to a privateparty must be incidental, under state constitutionalprovision prohibiting using state's taxing power orcredit to aid a private entity; if the district has notexercised its taxing power or pledged its credit tosupport the bond obligation, the obligation is valid if itserves a public purpose. West's F.S.A. Const. Art. 7, §10.

[12] States 360 119




Incidental private benefit from a public revenuebond issue is not sufficient to negate the public char-acter of a project for purposes of state constitutionalprovision prohibiting using state's taxing power orcredit to aid a private entity or person. West's F.S.A.

Const. Art. 7, § 10.

[13] States 360 119




As used in state constitutional provision prohib-iting using state's taxing power or credit to aid a pri-

vate entity or person, “credit” means the imposition of some new financial liability upon the State or a polit-ical subdivision which in effect results in the creationof a State or political subdivision debt for the benefitof private enterprises. West's F.S.A. Const. Art. 7, §10.

[14] States 360 119




Water Law 405 1035





Issuance of certificates of participation (COPs) bywater management district to finance purchase of landwas not a pledge of the district's credit, and thus only apublic purpose, rather than a paramount public pur-pose, was required to be shown in order for issuance tobe constitutional under state constitutional provisionprohibiting using state's taxing power or credit to aid aprivate entity or person; there was no direct or indirectundertaking by the public body to pay the obligationfrom public funds and no public property was placedin jeopardy by a default of third party. West's F.S.A.Const. Art. 7, § 10.

[15] States 360 119




Under state constitutional provision prohibitingusing state's taxing power or credit to aid a privateentity or person, it is immaterial that the primarybeneficiary of a project be a private party, if the public

interest, even though indirect, is present and suffi-ciently strong. West's F.S.A. Const. Art. 7, § 10.



268XIII(A) Power to Incur Indebtedness and



Page 5



Expenditures 268k861 k. Municipal purposes. Most Cited

Cases

Public ownership of a project to be funded bybond revenues is a significant factor in a finding of public purpose. West's F.S.A. Const. Art. 7, § 10.

[17] Water Law 405 1035





State constitution's local bond referendum re-quirement did not apply to issuance of certificates of participation (COPs) to finance water managementdistrict's purchase of land which would be leased back to seller, where district did not pledge its ad valoremtaxing powers to pay any sum under the lease agree-ment or any of the leases, could not be compelled tolevy any ad valorem tax to pay the lease payments, andcould not be compelled to pay any lease paymentsbeyond one year, basic lease payments were payableonly from funds appropriated by district board andwere not payable from any source of taxation, and

board was free to terminate the lease annually withoutfurther obligation and the certificate holders werelimited to lease remedies. West's F.S.A. Const. Art. 7,§ 12.




268k918 Submission of Question of Issue of Bonds to Popular Vote

268k918(1) k. In general. Most CitedCases

A local bond referendum is not required by stateconstitution when there is no direct pledge of the advalorem taxing power; although contributions maycome from ad valorem tax revenues, what is critical to

the constitutionality of the bonds is that, after the saleof the bonds, a bondholder would have no right, if funds were insufficient to meet the bond obligations tocompel by judicial action the levy of ad valorem tax-

ation. West's F.S.A. Const. Art. 7, § 12.





268k918(1) k. In general. Most CitedCases

Where a governing body is not obliged and can-not be compelled to levy any ad valorem taxes if fundsare insufficient to meet bond obligations, then theobligation is not payable from ad valorem taxation forpurposes of state constitution, and referendum ap-proval is not required. West's F.S.A. Const. Art. 7, §12.

[20] Water Law 405 1035





Water management district could not constitu-tionally include under master lease, in certificates of participation (COPs)-financed transaction to purchaseland which would then be leased back to seller, anylands that were financed through a pledge of district'sad valorem taxing power, where no local bond refer-endum had been held for issuance of COPs. West'sF.S.A. Const. Art. 7, § 12.

[21] Water Law 405 1035





Page 6





Legislative approval was not required for issu-ance of certificates of participation (COPs) to financewater management district's purchase of land; watermanagement districts are not state agencies for pur-poses of state constitutional provision requiring leg-islative approval for revenue bonds issued by state orits agencies. West's F.S.A. Const. Art. 7, § 11.

[22] Water Law 405 1031



ministrative Authorities 405k1031 k. Nature and purpose. Most

Cited Cases

Water management districts have an amorphousnature in state law, being deemed state agencies orarms of the state for some purposes, but not for otherpurposes.

[23] Water Law 405 1035

405 Water Law 405II Comprehensive Water Resource Planningand Management in General



Water management district could establish non-profit leasing corporation to facilitate a certificates of participation (COPs) transaction to finance purchaseof land; district had broad statutory grant of authorityto do all things necessary and desirable in connection

with the issuance of revenue bonds. West's F.S.A. §373.584(2).

[24] Water Law 405 1035


and Management in General



Competent, substantial evidence supported find-ing that purchase agreement signed by water man-agement district and private company included $50million cost for option to purchase additional land intransaction financed by certificates of participation(COPs), triggering need for analysis of public purposeof option, where counsel for both parties referred to$50 million to be spent on option, trial testimony of several district witnesses suggested that $50 millionwas being paid for option, and district's director of land acquisitions testified that the $50 million was partof the acquisition price.

[25] Water Law 405 1035





No public purpose was shown for option to pur-chase further land, as included in purchase agreement

between water management district and company intransaction financed by certificates of participation(COPs), and thus COPs could not be issued to coverexpense of option, where no public purpose wasproven as to land subject to option. West's F.S.A. §373.584(2), (4)(b).

[26] Water Law 405 1035





Water management district has authority to con-vey land to a governmental entity. West's F.S.A. §§373.056(4), 373.089(1).





Page 8



Counsel appeared on behalf of the District, New Hope,the Tribe, the state attorneys, Concerned Citizens of Glades, the Audubon Society, Nathaniel P. Reid, andU.S. Sugar. In the midst of these proceedings, various

parties filed motions to abate the proceedings andreopen them for the court to consider new evidenceregarding a modification of the transaction, which thecourt granted. The parties engaged in more expediteddiscovery and filed more motions during this t ime.

On August 26, 2009, the circuit court issued itsfinal judgment, validating the COPs in the amount of $650 million, an amount sufficient to purchase 73,000acres of property from U.S. Sugar. The order con-tained eight pages of factual findings and sixteenpages of legal conclusions. The court found that theDistrict's responsibilities include restoring and clean-

ing up the Everglades ecosystem; the District's Gov-erning Board had adopted resolutions amending theDistrict's five-year plan to include acquisition of theU.S. Sugar lands, establishing a master lease-purchaseprogram, and authorizing the issuance of COPs tofinance these transactions; all of the meetings relatedto this matter had been open, public, and duly noticed.The court also found that under the masterlease-purchase agreement, the District will purchasethe property and ground lease the property to a non-profit Leasing Corporation. In turn, the Leasing Cor-poration will lease back the property to the District,which will manage the property and make improve-

ments to it. Under the agreement, the District mustdetermine annually whether to appropriate funds topay the Leasing Corporation for the annual rental of the property, and the District regains possession of theproperty at the end of the ground lease. Additionally, aMaster Trust Agreement was executed to issue COPsand to hold the proceeds from the COPs in trust to paythe costs of acquiring, constructing, and installingfacilities on the sites. The COPs are secured by thelease payments. The court concluded that the Districthas the legal authority to issue the COPs, that theCOPs will serve a legal purpose (water storage andtreatment), and that the issuance of the COPs complieswith the requirements of law.

In June 2009, pursuant to sections 120.569 and120.57, Florida Statutes (2009), and rule 28-106.201of the Florida Administrative Code, New Hope re-quested a formal administrative hearing challengingthe District's purchase of land from U.S. Sugar. Later,the Tribe filed a similar request. The District consol-

idated the parties' separate petitions for administrativehearing and dismissed them with prejudice for lack of standing. Both New Hope and the Tribe filed noticesof administrative appeal, requesting that the district

court grant them a formal hearing for their adminis-trative law claim. The District filed an all writs peti-tion, asking this Court to transfer the administrativeappeals cases from the district court because the casesdeal with the same issues presented *817 in the bondvalidation proceedings. We granted the petition andtransferred the cases.FN1

FN1. We consolidated the two administrativecases and reviewed them without oral argu-ment. See New Hope Sugar Co. v. South Fla.

Water Mgmt. Dist., No. SC10-330, 2010 WL4709713 (Fla. Nov. 18, 2010), and Mic-

cosukee Tribe v. South Fla. Water Mgmt. Dist., No. SC10-336, 2010 WL 4709713(Fla. Nov. 18, 2010).

In September 2009, the Tribe and New Hope filedseparate notices of appeal regarding the bond valida-tion proceeding. We granted the District's unopposedmotion to consolidate the two bond validation appeals.We heard oral argument from the parties in April2010.

ISSUES AND ANALYSIS The parties raise a number of issues regarding the

validity of the COPs, including: whether the trialcourt's findings of fact are complete; whether the trialcourt should have considered the economic feasibilityof the project to be funded by the COPs; whether theCOPs serve a public purpose; whether the transactionviolates various constitutional provisions; whether theproposed financing structure is legal; whether COPsmay be issued to purchase an option to buy certainproperty in the future; and whether the District maylegally convey purchased lands to municipalities.

[1][2][3][4] Judicial inquiry in a bond validationproceeding, both at the trial court and this Court, is

limited to determining: (1) whether a public body hasthe authority to issue the subject bonds; (2) whetherthe purpose of the obligation is legal; and (3) whetherthe authorization of the obligation complies with therequirements of law. See City of Gainesville v. State, 863 So.2d 138, 143 (Fla.2003). This Court reviews the“trial court's findings of fact for substantial competentevidence and its conclusions of law de novo.” Id.



Page 9



(citing Panama City Beach Cmty. Redev. Agency v.

State, 831 So.2d 662, 665 (Fla.2002), and City of Boca

Raton v. State,595 So.2d 25, 31 (Fla.1992)). The final judgment of validation comes to this Court clothed

with a presumption of correctness. See Strand v. Es-cambia County, 992 So.2d 150, 154 (Fla.2008).Moreover, the appellants have the burden of demon-strating that the record and evidence fail to support thelower court's conclusions. See Wohl v. State, 480So.2d 639, 641 (Fla.1985). We consider the issuesraised within this legal framework.

1. Findings of Fact and Economic Feasibility [5] The Tribe and New Hope argue that the fac-

tual findings made by the trial court in its order of final judgment are incomplete because the trial court failedto consider the economic feasibility of the project and

because the court failed to recognize that the proceedsof the COPs will be used to purchase 73,000 acresfrom U.S. Sugar and not to finance infrastructureprojects on the land.

In its conclusions of law in the final judgment, thetrial court recognized that “the economic feasibility of the project is outside of its scope of review.” The courtacknowledged that the Tribe and New Hope had madestrong arguments that the project is economicallyimpossible. The court also questioned the wisdom of seeking this large amount of COPs during the currenteconomic times. However, the court stated that it was

“bound by precedent which instructs that economicfeasibility is collateral to bond validation proceed-ings” and cited a number of previous decisions by thisCourt that stand for this proposition. Ultimately, thecourt stated that it “cannot and does not base its deci-sion*818 on whether the District will have the fi-nancing to actually complete a project of this magni-tude.”

This Court has repeatedly explained that

the fiscal feasibility of a revenue project is an ad-ministrative decision to be concluded by the busi-

ness judgment of the issuing agency. Such problemsas the advisability of the project and its incomepotential, must be resolved at the executive or ad-ministrative level. They are beyond the scope of judicial review in a validation proceeding.

State v. Manatee County Port Auth., 171 So.2d169, 171 (Fla.1965). In Town of Medley v. State, 162

So.2d 257, 258-59 (Fla.1964), we explained that thereasonableness and economic feasibility of the fi-nancing plan were “the responsibility and prerogativeof the governing body of the governmental unit in the

absence of fraud or violation of legal duty.” See alsoWashington Shores Homeowners' Ass'n v. City of

Orlando, 602 So.2d 1300, 1302 (Fla.1992) (statingthat homeowners' complaint as to advisability of project is “collateral to” and “beyond the scope of” bondvalidation proceedings); State v. City of Sunrise, 354So.2d 1206, 1210 (Fla.1978) (explaining that theCourt cannot reach the question of whether the bondrevenue plan is fiscally sound or whether the financingmethod was wise).

This Court has adhered to these limitations overthe years. For example, in State v. School Board of

Sarasota County, 561 So.2d 549, 553 (Fla.1990), westated that “[q]uestions of business policy and judg-ment are beyond the scope of judicial interference andare responsibility of the issuing governmental units.”Similarly, in State v. City of Daytona Beach, 431So.2d 981, 983 (Fla.1983), we stated that “questionsconcerning the financial and economic feasibility of aproposed plan are to be resolved at the executive oradministrative level and are beyond the scope of ju-dicial review in a validation proceeding.”

[6] The rationale that underlies the limited judi-cial review in bond validation cases was explained by

this Court in Town of Medley, 162 So.2d at 259:

[T]he courts do not have the authority to substitutetheir judgment for that of officials who have de-termined that revenue certificates should be issuedfor a purpose deemed by them to be in the best in-terest of those whom they represent....

A contrary holding would make an oligarchy of the courts giving them the power in matters such asthis to determine what in their opinion was good orbad for a city and its inhabitants thereby deprivingthe inhabitants of the right to make such decisions

for themselves as is intended under our system of government.

Indeed, “[t]he function of a validation proceedingis merely to settle the basic validity of the securitiesand the power of the issuing agency to act in thepremises. Its objective is to put in repose any questionof law or fact affecting the validity of the bonds.”



Page 10



Manatee County Port Auth., 171 So.2d at 171.

New Hope argues that there was no administra-tive determination of the economic feasibility of this

plan. However, the Governing Board passed threeseparate resolutions authorizing this project, arguedthe merits of the project at various board meetings,and heard reports by District staff at a number of meetings and workshops. A reviewing court cannot gobehind the resolutions of the Governing Board whichauthorized this project. Thus, we agree with the trialcourt's conclusion that economic feasibility is beyond*819 the scope of judicial review in a bond validationproceeding.

2. Public Purpose The Tribe and New Hope argue that the purpose

of the obligation is not legal because the proceeds of the COPs will not be used for the purposes delineatedby the District, but merely to buy land. They alsoargue that the public purpose cannot be discerned herebecause the District does not have specific projectsplanned for the various parcels of land to be acquired.

“This Court has held that ‘legislative declarationsof public purpose are presumed valid and should beconsidered correct unless patently erroneous.’ ”Strand v. Escambia County, 992 So.2d 150, 156(Fla.2008) (quoting Boschen v. City of Clearwater, 777 So.2d 958, 966 (Fla.2001)). In its resolution ap-

proving the purchase of the land from U.S. Sugar andthe issuance of the COPs, the District's GoverningBoard stated that the acquisition of the land

will serve a public purpose by increasing the waterstorage capability of the District to reduce harmfulfreshwater discharges from Lake Okeechobee toFlorida coastal rivers and estuaries; improving thetiming and quality of delivery of cleaner water to theEverglades ecosystem; preventing phosphorousfrom entering the Everglades ecosystem; eliminat-ing the need for “back-pumping” water into LakeOkeechobee and improving the sustainability of

agriculture and green energy production all as moreparticularly described in staff report entitled Sum-mary of Benefits of the USSC Land Acquisitionattached hereto as Exhibit A.

Resolution No. 2008-1027, at 3, Governing Boardof the South Florida Water Management District (Oct.9, 2008). The Summary of Benefits referred to in the

Governing Board's resolution was authored by twoDistrict directors and the District's chief scientist. Thisreport goes into great detail as to each of the benefitslisted as a public purpose in the Governing Board's

resolution.

Additionally, the Legislature has declared that itis “necessary for the public health and welfare thatwater and water-related resources be conserved andprotected” and that the “acquisition of real propertyfor this objective shall constitute a public purpose forwhich public funds may be expended.” § 373.139(1),Fla. Stat. (2008). The Legislature has also given watermanagement districts the authority to “issue revenuebonds to finance the undertaking of any capital orother project for the purposes permitted by the StateConstitution” and “to pay the costs and expenses in-

curred in carrying out the purposes of this chapter.” §373.584(1), Fla. Stat. (2008). In fact, the Legislaturehas provided that

[t]he powers and authority of districts to issue rev-enue bonds ... shall be coextensive with the powersand authority of municipalities to issue bonds understate law. The provisions of this section constitutefull and complete authority for the issuance of revenue bonds and shall be liberally construed toeffectuate its purpose.

§ 373.584(2), Fla. Stat. (2008).

For purposes of section 373.584, the definition of a project is broadly defined as

a governmental undertaking approved by the gov-erning body of a water management district and in-cludes all property rights, easements, and franchisesrelating thereto and deemed necessary or convenientfor the construction, acquisition, or operationthereof, and embraces any capital expenditurewhich the governing body of a water managementdistrict shall deem to be made for a public *820 purpose, including the refunding of any bonded

indebtedness which may be outstanding on any ex-isting project.

§ 373.584(4)(b), Fla. Stat. (2008). “Works of thedistrict” are also broadly defined in chapter 373 as“those projects and works, including, but not limitedto, structures, impoundments, wells, streams, andother watercourses, together with the appurtenant



Page 11



facilities and accompanying lands, which have beenofficially adopted by the governing board of the dis-trict as works of the district.” § 373.019(26), Fla. Stat.(2008).

[7] Thus, the District has authority to acquirelands to further the objective of conserving and pro-tecting water and water-related resources. This objec-tive has been deemed a “public purpose” by the Leg-islature. The District can also issue revenue bonds tofinance the costs of carrying out its responsibilitiesand projects under chapter 373. Its authority to issuesuch bonds is coextensive with that of municipalitiesand is to be liberally construed so that it can serve itspurpose. The lands upon which the District's projectsreside are part of its statutorily defined works. In fact,it would be impossible for the District to construct its

projects without first acquiring the accompanyinglands. These statutes provide ample evidence to satisfythe first prong of our review, i.e., whether the Districthas the authority to issue the subject bonds. See City of

Gainesville, 863 So.2d at 143.

The Appellants cite this Court's decision in State

v. Suwannee County Development Authority, 122So.2d 190 (Fla.1960), in support of their argument thatno public purpose has been proven. In Suwannee

County, the Development Authority sought validationof revenue certificates for the purchase of land andconstruction of buildings that would be leased to pri-

vate businesses. Id. at 191. There were no definiteplans as to what land would be purchased with theproceeds from the sale of the certificates, whatbuildings would be constructed, or what firms wouldlease the buildings. Id. The Development Authorityintended to devise the program after the validation. Id. On review, this Court explained that in order to de-termine whether an agency may lawfully expend thebond proceeds for the contemplated purpose, the is-suing governmental agency should set forth in thepetition for validation “a description of the purpose forwhich the proceeds are to be used, which descriptionshould be sufficiently detailed to enable a member of the public and the state to determine whether the is-suing agency can lawfully expend public moniestherefor.” Id. at 193. Thus, “petitions for validation of bonds and revenue certificates should set forth inreasonable detail the purpose or purposes which willbe accomplished with the proceeds.” Id. at 194.

The complaint for validation and two supple-

ments to the complaint that were filed in this casedescribe the land to be acquired with the proceeds of the COPs and the structure of the financing agreement.The complaint also states that the land will be used to

further the District's mandate to restore natural re-sources. Exhibits filed with the complaint include theGoverning Board's resolutions which authorize theland purchase, the issuance of COPs, and the financingstructure; a report detailing the benefits to be derivedfrom the land acquisition; a number of reports relatingto the District's projects and the Everglades restora-tion; and copies of the master lease-purchase agree-ment, the master trust agreement, the ground leases tobe used for the leases between the District and theLeasing Corporation, the assignment agreement be-tween the Leasing Corporation and the named trustee,and the COPs to be issued. *821 In all, well over 500

pages of exhibits were filed with the complaint forvalidation.

[8] This is a far cry from the Suwannee County case, where the complaint did not specify what landwould be purchased, what buildings would be con-structed, and to whom the buildings would be leased.Here, the 73,000 acres have been identified. The landwill be leased back to U.S. Sugar, which will be re-quired to maintain the land as specified in the groundlease and to use best practices in its farming. The landwill eventually house various water storage andtreatment projects. At the July 13, 2009, evidentiary

hearing, the District's Executive Director specified thevarious projects and uses for each parcel of the 73,000acres. In fact, it was the lack of such projects orplanned uses for the remaining 107,000 acres thatcaused the trial court to deny validation of COPs forthe purchase of those additional acres.

This Court addressed a similar challenge based onthe fact that “plans and specifications of the proposedimprovements were not offered in evidence by” thegovernmental entity seeking validation in Rianhard v.

Port of Palm Beach District, 186 So.2d 503, 505(Fla.1966). In that case, we concluded that the intro-duction of the supporting resolution, which “suffi-ciently describe[d] the purposes for which the fundsderived from the sale of the certificates [would] beexpended,” was “all that was necessary to justifyvalidation.” Id. We reiterated this holding in Strand, when we stated that “the admission of a resolutionmay be sufficient evidence justifying a bond valida-tion.” Strand, 992 So.2d at 156. There, the County



Page 12



offered into evidence its ordinance and resolutionauthorizing bonds for a road construction project andpresented testimony concerning the purpose of theproject and the financing mechanism. See id. at 155.

We concluded that these legislative findings were“competent, substantial evidence sufficient to supportthe final judgment.” Id. at 156.

The same can be said in the instant case, wherethe trial court conducted nine days of evidentiaryhearings resulting in thousands of pages of transcripts,heard testimony from numerous expert witnesses, andconsidered numerous evidentiary materials. Thetranscript contains numerous passages in which thetrial judge questions witnesses to gain more infor-mation and asks the parties to clarify various issues.The trial court's order of final judgment is compre-

hensive and well-documented. The arguments by theAppellants here do not meet the burden of “demon-strat[ing] from the record the failure of the evidence tosupport the [government body's] and the trial court'sconclusions.” Wohl v. State, 480 So.2d 639, 641(Fla.1985). The trial court's final judgment of valida-tion comes to this Court “clothed with a presumptionof correctness.” Strand, 992 So.2d at 154 (citing Wohl, 480 So.2d at 641). We conclude that there is compe-tent substantial evidence in the record to support thefinding of a public purpose.

3. Constitutional Challenges

The Tribe and New Hope argue that the transac-tion is not valid because it does not comply with sev-eral provisions of the Florida Constitution. Theseinclude the prohibition in article VII, section 10 against using the state's taxing power or credit to aid aprivate entity or person; the requirement of article VII,section 12 that voters must approve bonds or COPswhich are payable from ad valorem taxation and ma-ture more than twelve months after issuance; and therequirement in article VII, section 11 that bonds issuedby the state or its agencies must first be approved bythe Legislature through an act relating to appropria-tions or by general law. For the reasons explainedbelow, we conclude that *822 the instant transactiondoes not violate any of these constitutional provisions.

a. Public Purpose Test of Article VII, Section 10 [9] Article VII, section 10 of the Florida Consti-

tution provides in pertinent part: “Neither the state norany county, school district, municipality, special dis-trict, or agency of any of them, shall ... give, lend or

use its taxing power or credit to aid any corporation,association, partnership or person....” The Appellantscontend that the land acquisition in this case violatesthis constitutional provision because the District is

buying lands that will then be leased back to U.S.Sugar for a number of years, therefore not meeting theparamount public purpose test.

[10][11][12] The basic test for determiningwhether an expenditure of public funds violates thissection of the Florida Constitution is whether suchexpenditure is made to accomplish a public purpose. If the District has used either its taxing power or pledgeof credit to support issuance of bonds, the purpose of the obligation must serve a paramount public purposeand any benefits to a private party must be incidental.See State v. JEA, 789 So.2d 268, 272 (Fla.2001) (cit-

ing State v. Osceola County, 752 So.2d 530, 536(Fla.1999)). If the District has not exercised its taxingpower or pledged its credit to support the bond obli-gation, the obligation is valid if it serves a publicpurpose. See id. at 272; Northern Palm Beach County

Water Control Dist. v. State, 604 So.2d 440, 441-42(Fla.1992). Incidental private benefit from a publicrevenue bond issue is not sufficient to negate thepublic character of the project. JEA, 789 So.2d at 272.

[13][14] As used in article VII, section 10,“credit” means “the imposition of some new financialliability upon the State or a political subdivision which

in effect results in the creation of a State or politicalsubdivision debt for the benefit of private enterprises.” Jackson-Shaw Co. v. Jacksonville Aviation Auth., 8So.3d 1076, 1095 (Fla.2008) (quoting Nohrr v. Bre-

vard County Educ. Facilities Auth., 247 So.2d 304,309 (Fla.1971)). This Court has explained that thelending of credit means:

[T]he assumption by the public body of some de-gree of direct or indirect obligation to pay a debt of the third party. Where there is no direct or indirectundertaking by the public body to pay the obligationfrom public funds, and no public property is placed

in jeopardy by a default of the third party, there is nolending of public credit.

Id. (quoting State v. Housing Fin. Auth., 376So.2d 1158, 1160 (Fla.1979)). Under this definition,we conclude that the COPs in this case do not con-template a pledge of the District's credit, and that onlya public purpose, not a paramount public purpose,



Page 13



need be shown.

In its final judgment, the trial court concluded thatthe acquisition of the land would serve the public

purpose of water storage and treatment. The trial courtnoted that the Governing Board had voted to approvethe acquisition after much debate and that Districtwitnesses had outlined, parcel by parcel, the immedi-ate and future benefits to be gained by the land ac-quisition. The court found that the following benefitswould be achieved: storage and treatment of waterbefore it is pumped into Lake Okeechobee; additionalstorage and treatment facilities that will work in conjunction with Comprehensive Everglades RestorationProjects basins; and land that will be valuable forfuture land swaps.

Examples of valid “public purposes” that havebeen recognized by this Court rather broadly includean on-site road improvement project within a unit of awater control*823 district, see Northern Palm Beach

County Water Control Dist., 604 So.2d at 443, theconstruction of an office building for a multistateinsurance company, see Linscott v. Orange County

Indus. Dev. Auth., 443 So.2d 97 (Fla.1983), and thepurchase of mortgages from private homeowners toalleviate shortages in public housing, see State v.

Housing Fin. Auth., 376 So.2d 1158 (Fla.1979).

[15][16] “Under the constitution of 1968, it is

immaterial that the primary beneficiary of a project bea private party, if the public interest, even thoughindirect, is present and sufficiently strong.” State v.

Housing Fin. Auth., 376 So.2d at 1160. Further, publicownership of a project to be funded by bond revenuesis a “significant factor in a finding of public purpose.” Northern Palm Beach County Water Control Dist., 604 So.2d at 443 (citing Orange County Indus. Dev.

Auth. v. State, 427 So.2d 174, 179 (Fla.1983)).

In the instant case, the District will retain title tothe lands acquired. The land will be leased back to theseller U.S. Sugar to continue its agricultural opera-

tions, which will generate revenues and maintain theland until the District can construct the infrastructureprojects required for water storage and treatment forEverglades restoration. Because we conclude that thepurchase of the property serves the public purposes of furthering Everglades restoration and the managementof water resources, the requirements of article VII,section 10 are satisfied.

b. Voter Referendum Requirement of Article VII,

Section 12 [17] Article VII, section 12 of the Florida Con-

stitution, provides:

Local bonds.-Counties, school districts, munici-palities, special districts and local governmentalbodies with taxing powers may issue bonds, certif-icates of indebtedness or any form of tax anticipa-tion certificates, payable from ad valorem taxationand maturing more than twelve months after issu-ance only:

(a) to finance or refinance capital projects au-thorized by law and only when approved by vote of the electors who are owners of freeholds therein not

wholly exempt from taxation; or

(b) to refund outstanding bonds and interest andredemption premium thereon at a lower net averageinterest cost rate.

The trial court concluded that the referendumrequirement of article VII, section 12 does not apply inthis case because the District's obligation to make thelease payments is an annual obligation that does notextend more than twelve months and the lease pay-ments are not payable from ad valorem taxation withinthe meaning of the constitutional provision. The trialcourt found that the arguments advanced by the Tribeand New Hope ignored the plain language of theFlorida Constitution, the relevant Florida Statutes, thegoverning resolution and agreements, and this Court'srecent decision in Strand v. Escambia County, 992So.2d 150, 157-59 (Fla.2008), in which this Courtreaffirmed its long-held distinction between pledgesof ad valorem taxing power and the use of ad valoremtax revenues. We agree.

[18][19] In State v. Miami Beach Redevelopment

Agency, 392 So.2d 875 (Fla.1980), we explained that areferendum is not required by article VII, section 12

when there is no direct pledge of the ad valorem taxingpower. Although contributions may come from advalorem tax revenues, “[w]hat is critical to the con-stitutionality of the bonds is that, after the sale of thebonds, a bondholder would have no right, if [funds]were insufficient to meet the bond obligations ... tocompel by judicial action the levy of ad valorem tax-ation.” *824 Id. at 898. Where a governing body is not



Page 14



obliged and cannot be compelled to levy any ad val-orem taxes, then the obligation is not “payable from advalorem taxation” for purposes of article VII, section12, and referendum approval is not required. Id.; see

also State v. School Bd. of Sarasota County, 561 So.2d549 (Fla.1990) (reaching same conclusion as to va-lidity of bonds and COPs to be issued by severalschool boards for the construction of schools). Werecently reaffirmed our adherence to this reasoning inStrand, when we rejected Strand's motion on rehear-ing asking us to recede from the decision in Miami

Beach as it relates to the meaning of “payable from advalorem taxation” in article VII, section 12. Strand, 992 So.2d at 157-59.

The trial court found that the District has notpledged its ad valorem taxing powers to pay any sum

under the lease agreement or any of the leases, cannotbe compelled to levy any ad valorem tax to pay thelease payments, and cannot be compelled to pay anylease payments beyond one year. We agree. Under theterms of the Master Lease Purchase Agreement, thebasic lease payments are payable only from fundsappropriated by the Governing Board and are notpayable “from any source of taxation.” The Districthas not pledged its “full faith and credit ... for paymentof such sums.” Further, the agreement provides that“[n]either the [Leasing] Corporation, the Trustee, norany certificate holder may compel the levy of ad val-orem taxes by the Governing Board to pay the lease

payments.” The District's Chief Financial Officer alsotestified that the way the deal was structured, none of the certificate holders could ever compel the Districtto levy ad valorem taxes in order to pay the District'sobligations. Under the nonappropriation clause of theagreement, the obligations and liabilities are depend-ent upon appropriations being made by the GoverningBoard. Additionally, the Governing Board is free toterminate the lease annually without further obligationand the certificate holders are limited to lease reme-dies. The failure of the Governing Board to appropri-ate the sufficient funds for lease payments does notconstitute a default, does not require payment of apenalty, and does not limit the District's right to pur-

chase or use facilities similar in function. Instead, thenonappropriation of the funds results in the termina-tion of the lease, requiring the District to surrenderpossession of the facilities to the trustee for the re-mainder of the term of the ground lease. However, thefee title to the property remains in the name of theGoverning Board. Thus, the terms of the agreementmaintain the District's “full budgetary flexibility.”

State v. Brevard County, 539 So.2d 461, 464(Fla.1989); see also Sarasota County, 561 So.2d at553 (finding that “annual renewal option preserves theboards' full budgetary flexibility”).

The Tribe and New Hope assert that this nonap-propriation clause is illusory because the Districtcannot practically walk away from its obligation. Theycite Frankenmuth Mutual Insurance Co. v. Magaha, 769 So.2d 1012 (Fla.2000), and Volusia County v.

State, 417 So.2d 968, 969 (Fla.1982), in support of this argument. However, we find both cases to bedistinguishable from the instant case.

Frankenmuth involved a master lease agreementfor computer equipment to be used for county payrolland central data processing for the county offices. In

addition to a nonappropriation clause that terminatedthe lease if the funding authority failed to appropriatefunds to make the lease payments, the agreement alsocontained a nonsubstitution clause, providing that thecounty could not purchase or rent substitute computerequipment for two years in the event of nonappropri-ation. *825 See Frankenmuth, 769 So.2d at 1014-18. Although the agreement stated that there was nopledge of ad valorem taxes by the county and thecounty could not be compelled to appropriate funds tomake the lease payments, we concluded that thenonsubstitution clause rendered the nonappropriationclause illusory by compelling the county to make the

lease payments or suffer the penalty of losing thecomputer equipment and not being able to substituteother computer equipment for two years. See id. at1024. Thus, the county was “morally compel[led] ... topledge ad valorem taxes to fulfill the obligations of thelease.” Id. at 1026.

Similarly, in Volusia County, 417 So.2d at 972, the county pledged all available revenues and cove-nanted “to do all things necessary to continue receiv-ing the various revenues” pledged in bonds for theconstruction of a new jail. We concluded that thesetwo pledges would “inevitably lead to higher ad val-

orem taxes during the life of the bonds, whichamounts to the same thing.” Id.

Here, the master lease agreement contains anonappropriation clause that gives the District theright to terminate the lease on an annual basis if theGoverning Board should decide not to appropriate thefunds for the lease. As this Court explained in



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Frankenmuth, such nonappropriation or nonrenewalclauses are “essential to prevent long-term municipalfinancing arrangements from being classified as debtunder state law, thus triggering state-law requirements

such as voter referendum.” 769 So.2d at 1024 (quotingFrankenmuth Mut. Ins. Corp. v. Magaha, 10 Fla. L.Weekly Fed. D340, D341, 1996 WL 571042 (N.D.Fla.Aug. 30, 1996)). Unlike Volusia County, there are nofurther pledges as to the source of revenues or effortsto maintain revenues. Unlike Frankenmuth, the onlythe penalties for nonappropriation are normal leasepenalties, i.e., the District loses possessory interest forthe term of the lease and this interest may be re-leasedfor the benefit of the certificate holders. At the ter-mination of the lease, the District regains possessionand it always retains title to the land. We conclude thatthis structure maintains the District's budgetary flexi-

bility and thus does not require a referendum underarticle VII, section 12.

[20] However, the arrangement could run afoul of this constitutional provision if the District shouldinclude under the master lease any lands that havebeen financed through a pledge of its ad valoremtaxing power. Under Resolution 2009-500A of theGoverning Board, the “Certificates [of Participation]will be payable from basic lease payments to be madeby the District under the initial lease Schedule relatedto the lease of the U.S. Sugar Lands or other lands it

currently owns.” Resolution No. 2009-500A, at 2,

Governing Board of the South Florida Water Man-agement District (May 13, 2009) (emphasis added).The substitution of other lands that implicate a pledgeof the District's ad valorem taxing power would runafoul of the referendum requirement of article VII,section 12, and therefore such lands may not be sub-stituted.

c. Legislative Approval under Article VII, Section

11(f) [21] Article VII, section 11 of the Florida Con-

stitution governs state bonds and revenue bonds.Subsection (f) provides that “[e]ach project, building,or facility to be financed or refinanced with revenuebonds issued under this section shall first be approvedby the Legislature by an act relating to appropriationsor by general law.” This provision applies to bondsissued by “the state or its agencies.” Art. VII, § 11(d),Fla. Const. The trial court *826 concluded that thelegislative approval was not required in this case be-cause the District was not a state agency for purposes

of article VII of the Florida Constitution. The trialcourt based this conclusion on the fact that article VII,section 1(a) of the Florida Constitution prohibits thestate and its agencies from levying ad valorem taxes,

while article VII, section 9(b) authorizes the levy of advalorem taxes “for water management purposes” andfor “all other special districts.” The court reasoned thatbecause the District can and does levy ad valoremtaxes, it cannot be deemed a “state agency” underarticle VII.

[22] Water management districts have an“amorphous nature” in Florida law, being deemedstate agencies or arms of the state for some purposes,but not for other purposes. Compare Fla. Sugar Cane

League, Inc. v. South Fla. Water Mgmt. Dist., 617So.2d 1065, 1066 (Fla. 4th DCA 1993) (explaining

that the district is a “regulatory state agency” subjectto Florida's Administrative Procedure Act), with

Martinez v. South Fla. Water Mgmt. Dist., 705 So.2d611 (Fla. 4th DCA 1997) (determining that the Districtwas not subject to the provisions of the Drug-FreeWorkplace Act because it was not a state agency). Inthis case the dispositive question is whether the Dis-trict is a “state agency” for purposes of article VII,section 11(f), which would require legislative ap-proval through general law or an appropriations actbefore the District could issue revenue bonds. In thepast, we have concluded that water management dis-tricts are not included in the prohibition against state

ad valorem taxation in article VII, section 1(a) of theFlorida Constitution. See St. Johns River Water Mgmt.

Dist. v. Deseret Ranches of Florida, Inc., 421 So.2d1067, 1070 (Fla.1982) (concluding that ad valoremtaxes levied by the district did not violate the consti-tutional prohibition against state ad valorem taxesbecause article VII, section 9 “specifically authorizesthe levying of ad valorem taxes for water managementpurposes,” and section 373.503 of the Florida Statutes “provides the implementing legislation for ad valoremtaxation to finance the works of the District”). Whilethe Appellants are technically correct that Deseret

Ranches did not hold that water management districtsare not state agencies, we did recognize that the dis-

tricts are not the “state” for purposes of finance andtaxation under article VII of the Florida Constitution.See id.

Accordingly, we agree with the trial court's con-clusion that legislative approval is not required beforethe District can issue these certificates of participation.



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4. Financing Structure [23] The Tribe asserts that the financing structure

in this case is not legal. The trial court succinctly

characterized the financing structure in its order of final judgment:

The District proposes to issue COPs pursuant to aclassic, annual appropriation, lease-purchase struc-ture that has been consistently approved by theFlorida Supreme Court. Here, the District willpurchase property which it will then ground lease tothe Leasing Corporation. The Leasing Corporationwill lease such property back to the District pursu-ant to the Master Lease Purchase Agreement. TheDistrict will manage such property and may makeimprovements thereto. Pursuant to Section 3.5 of

the Master Lease Purchase Agreement, the Districtmust annually determine whether to appropriatefunds, which may include proceeds from ad val-orem taxes, to pay the Leasing Corporation for theannual rental of such property. Each of thesestructural elements is similar to those present in*827 School Board of Sarasota County, where titleto the public lands remained in the school boards,the ground lease was up to thirty years, and“[m]oney from several sources, including ad val-orem taxation, [was] used to make the annual facil-ities lease payments.” School Bd. of Sarasota

County, 561 So.2d at 551.

If, in any year, the District determines not to ap-propriate funds to make the annual rental payments,the Lease Term of all Leases under the Master LeasePurchase Agreement will terminate no later than theend of the District's fiscal year for which the Districtappropriated funds to make the lease payments.Upon such termination, the District must immedi-ately surrender and deliver possession of the prop-erty to the Trustee as assignee of the Leasing Cor-poration. The District surrenders possession onlyfor the remaining period of the Ground Lease butdoes not surrender ultimate ownership of the prop-

erty. At the end of the Ground Lease, the Districtregains possession of the property. During such pe-riod of the ground lease, the District may freelysubstitute other property for the property then con-trolled by the Leasing Corporation pursuant to theGround Lease.

The Tribe argues, first, that the District has no

authority to form and utilize the nonprofit LeasingCorporation, and second, that the financing structureis questionable under contract law because the leasesbetween the District and the nonprofit Leasing Cor-

poration are not supported by adequate consideration.

The first argument was rejected by the trial court,which concluded that government entities may createnonprofit corporations for the sole purpose of facili-tating a COPs transaction. Indeed, in Leon County

Educational Facilities Authority v. Hartsfield, 698So.2d 526, 527 (Fla.1997), a nonprofit corporationwas established solely for the purpose of facilitatingthe financing, acquisition, construction, and equippingof a project by the Authority to operate a dormitoryand food service project to serve students at the localuniversities and colleges. The Authority entered into a

lease-purchase agreement with the nonprofit corpora-tion that was financed through the issuance of COPS.Similarly, in School Board of Sarasota County, 561So.2d at 550-51, the school boards of several countiesentered into lease-purchase agreements with nonprofitentities which were financed with COPs. Thoseagreements provided for the lease of public landowned by the boards to the nonprofit entities by wayof ground leases, the construction or improvement of public educational facilities upon the leased lands andthe annual leaseback of the facilities to the respectiveschool boards by way of facilities leases, and theconveyance of the lease rights of the nonprofits enti-

ties to trustees by way of trust agreements. See id.

Section 373.584 of the Florida Statutes authorizeswater management districts to issue revenue bonds.Section 373.584(2) gives water management districtspowers and authority coextensive with municipalitiesto issue bonds under state law. In fact, this provisionprovides that the districts' power and authority

to issue revenue bonds, ... and to enter into contractsincidental thereto, and to do all things necessary anddesirable in connection with the issuance of revenuebonds, shall be coextensive with the powers and

authority of municipalities to issue bonds understate law. The provisions of this section constitutefull and complete authority for the issuance of revenue bonds and shall be liberally construed toeffectuate its purpose.

*828 § 373.584(2), Fla. Stat. (2008). We con-clude that under this broad grant of authority to “do all



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things necessary and desirable in connection with theissuance of revenue bonds,” id., the District has theability to establish the nonprofit Leasing Corporation.

The order of final judgment does not mention theTribe's second argument regarding possible contractproblems with the ground lease between the Districtand the leasing corporation due to lack of considera-tion. However, we would find no merit to the argu-ment, as the ground lease provides that the LeasingCorporation will handle the matters related to theCOPs and their issuance and the matters related to titleof the land and the leases. Thus, the nonprofit LeasingCorporation is supplying valuable services in consid-eration for the lease of the lands by the District.

5. Purchase of Land Option

[24] The purchase agreement between U.S. Sugarand the District contains an “Option to Purchase RealProperty,” which gives the District an exclusive optionto purchase an additional 107,000 acres for a period of three years after the closing date of the sale at a fixedprice of $7400 per acre. During the following sevenyears, the provision gives the District a nonexclusiveoption to purchase the land at the appraisal value andthe right of first refusal if U.S. Sugar sells the optionland. There is no mention of a cost for this option inthis section of the purchase agreement, only a listingof the cost per acre should the option be exercised. Theparties disagree on whether the price to be paid for the

73,000 acres includes a cost for the option to purchasethe additional 107,000 acres of U.S. Sugar land. Ad-ditionally, the District asserts that this issue was notraised below by the Appellants and thus is not pre-served for review by this Court.

The order of final judgment states that the Districtis “initially acquiring approximately 73,000 acres forapproximately $536 million, with a $50 million optionto acquire the remaining 107,000 acres later in time.”The record of the proceedings below is replete withevidence to support the trial court's factual determi-nation that the option to purchase the additional

acreage will cost the District $50 million. The recordalso indicates that the Appellants raised the issue of the cost of the option during the hearing.

In various written responses and throughout thevalidation hearing, the Appellants asserted that theoption to purchase the additional 107,000 acres wouldcost the District $50 million. The District never di-

rectly contradicted these assertions and, in fact, thetestimony of several District witnesses tends to sup-port the assertions. On redirect questioning, the Dis-trict's Deputy Executive Director in Charge of Ever-

glades Restoration testified that the $50 million valueof the option had been presented to the GoverningBoard. On cross-examination, the District's BudgetDirector admitted that the $536 million purchase price“appeared” to include payment for the option. Alt-hough the District's Executive Director would notassign a monetary value to the option, she admitted oncross-examination that an expert appraiser had“blended [the value of the option and the value of theland] together in a very intricate way.” Additionally,the District never disagreed with the judge's charac-terization of the option as costing $50 million.

The record of the May 2009 Governing Boardmeeting also supports the conclusion that $50 millionwas being paid for the option. The District's Directorof Land Acquisitions testified that “the exclusivethree-year option has a value the appraisers put in themarketplace of $50 million.” *829 When asked by aBoard member whether the $50 million would becredited to the land cost if the option were exercised,the Director responded no and explained that the $50million had to be paid to U.S. Sugar at the closing. Shefurther explained that “the $50 million is part of theacquisition price, the 536.”

The record of the bond validation hearing alsonegates the District's assertion that the Appellantsnever raised the issue of whether COPs can be used topurchase a land option. Counsel for both Appellantschallenged the public purpose of the $50 million inCOPs that would be spent on the option. The Tribe'scounsel argued that the option money would not bespent on anything tangible, that there was no publicbenefit because the District was merely buying anopportunity, and that the taxpayers would be respon-sible for the $50 million debt even if the District neverexercised the option. New Hope's counsel made asimilar argument in closing, questioning the publicpurpose of the $50 million option.

[25] Based on the portions of the record describedabove, we find competent, substantial evidence tosupport the circuit court's conclusion that the purchaseagreement includes a $50 million cost for the option topurchase the remaining 107,000 acres of U.S. Sugarland. We also conclude that the issue of whether the



Page 18



option serves a public purpose was presented to thecircuit court below and thus was properly preservedfor our review. The circuit court found the record“essentially devoid of any information discussing how

the remaining 107,000 acres (if acquired) would beutilized” and thus the legality of the bond validation asto that acreage could not be determined. Because nopublic purpose has been proven as to the land that isthe subject of the option, no public purpose has beenshown for the option either. Thus, we reverse that partof the circuit court's order validating $50 million inCOPs related to the land option.

6. Conveyance of Land to Municipalities The Tribe argues that the transaction is illegal

because the District plans to convey some of the ac-quired lands to local communities for economic de-

velopment. The Tribe contends that the District doesnot have the legal authority to purchase land with theexpress purpose of conveying it to a local govern-mental entity and that a purchase for this purposeexceeds the District's statutory authority to purchaseland so that “water-related resources [may] be con-served and protected.” § 373.139(1), Fla. Stat. (2008).We find no merit to this argument.

[26][27] The Legislature has given the Districtauthority to convey land to a governmental entity. Thestatute specifically provides as follows:

Any water management district within thischapter shall have authority to convey or lease toany governmental entity, other agency describedherein or to the United States Government, includ-ing its agencies, land or rights in land owned bysuch district not required for its purposes under suchterms and conditions as the governing board of suchdistrict may determine.

§ 373.056(4), Fla. Stat. (2008). Additionally,section 373.089(1), Florida Statutes (2008), authorizesthe District to sell lands that the Governing Board hasdetermined to be surplus. Thus, there is no question

that the District has the authority to convey land tolocal communities. Moreover, the statutory authori-zation to dispose of surplus land clearly indicates thatwater management districts may acquire more landthan is ultimately required for a project.*830 Cf. Dep't

of Transp. v. Fortune Fed. Sav. & Loan Ass'n, 532So.2d 1267, 1269-70 (Fla.1988) (explaining that thestate may take more property than necessary for a

contemplated project when it would save money bydoing so).

CONCLUSION With the exceptions stated above, we conclude

that the District has the authority to issue the certifi-cates of participation for the purchase of the 73,000acres from U.S. Sugar, that this obligation serves thepublic purpose of conserving and protecting water andwater-related resources, and that the authorization of the obligation complies with the requirements of law.See City of Gainesville v. State, 863 So.2d 138, 143(Fla.2003). However, because the purchase of theoption does not serve a public purpose, COPs may notbe issued to cover this expense. Further, to the extentthat the substitution of other lands may implicate apledge of the District's ad valorem taxing power, such

lands may not be substituted.

Accordingly, we affirm in part and reverse in partthe circuit court's order of final judgment validating$650 million in certificates of participation to financethe land acquisition.

It is so ordered.

CANADY, C.J., and PARIENTE, POLSTON,LABARGA, and PERRY, JJ., concur. LEWIS, J., concurs in result only with an opinion. LEWIS, J., concurring in result only.

Restoration of the Everglades and environmentalprotection are topics of both great public concern andimportance. Water quality, flood control, water sup-ply, and ecosystem protection are critical concerns inFlorida. The wisdom and desirability of positive stepsto restore and protect our environment are beyonddispute. Governor Charlie Crist has proposed a boldvision for the future, and those involved in this work and movement should be commended. However, thewisdom, desirability, and vision of the underlyingproject are not considerations in the legal analysis of the validity of the proposed bond issue here. See

Boschen v. City of Clearwater, 777 So.2d 958, 966

(Fla.2001) ( “Moreover, the wisdom or desirability of a bond issue is not a matter for our consideration.”). Ido recognize and acknowledge that my reading of Florida constitutional requirements and restrictions onlong-term public debt payable from ad valorem taxa-tion is not currently the majority view of this Courtand, therefore, I must concur in result only.



Page 19



The plan here is just another variety of the at-tempted devices to circumvent the Florida Constitu-tion, as established by Florida citizens, and containshighly questionable aspects, such as the creation of an

excess land “real property slush fund” referred to inthe final judgment below as “valuable for future landswaps.” Additionally, the substance of this bond issuefalls within article VII, section 12 of the Florida Con-stitution, which requires the approval of the voters in areferendum.

First, the final judgment below addressed, andoral argument confirmed, that a portion of the pro-posed project includes “land that will be valuable forfuture land swaps” without any attempt to define ordisclose anything further for the purpose of that landin this bond issue. While flexibility and economic

considerations may favor this type of undisclosed“slush fund” of real property, considerations for legalvalidity do not allow this nebulous “pot of land.” Notonly does the law require more details or parameters,this “land swap” concept without boundaries*831 iscertainly subject to abuse and mischief. The law of Florida with regard to public debt requires at leastsome detail with regard to all of the property pur-chased with the bond proceeds and, most certainly,more detail than just a “pot” of land for “future landswaps.” See State v. Suwannee Cnty. Dev. Auth., 122So.2d 190, 193-94 (Fla.1960). While this is not fatalfor the entire project, the real property in the “slush

fund” for “land swaps” should not be approved. Thisis not sufficiently detailed to allow the public or theState to legitimately determine whether the futureundisclosed and indeterminate “land swaps” areproper expenditures of public monies.

Second, and importantly, article VII, section 12,of the Florida Constitution requires that any long-termpublic financing payable from ad valorem taxes andmaturing more than twelve months after issue be ap-proved through referendum:

Counties ... special districts and local govern-

mental bodies with taxing powers may issue bonds[and] certificates of indebtedness ... payable from

ad valorem taxation and maturing more than twelvemonths after issuance only:

(a) to finance or refinance capital projects au-thorized by law and only when approved by vote

of the electors ....

Art. VII, § 12(a), Fla. Const. (emphasis added).

The finding by the trial court and the bond ar-gument advanced by the bond proponents here that theobligation to make payments under the proposedstructure is only an annual obligation and does notextend more than twelve months is fantasy at thehighest level. This phantom and illusory “walk away”argument is built on a foundation of straw. Those whoseek public money, but to avoid public approval, havedeveloped a variety of devices that create a “theoret-ical” illusion that there is a legitimate escape from theobligation to continue payments beyond twelvemonths. This “phantom” escape argument has beenrejected by this Court in Frankenmuth Mutual Insur-

ance Co. v. Magaha, 769 So.2d 1012 (Fla.2000). This

Court has understood the necessity to look beyond theself-serving language and disclaimers of anylong-term obligations to analyze the effect of thedocuments as applied and as a matter of practicalreality. Just as the lease with a disclaimer of long-termobligations was held to be subject to article VII, sec-tion 12, in Frankenmuth, the practical and actual op-eration of this structure creates long-term paymentobligations beyond twelve months. It is pure mentalgymnastics to accept that as a practical matter theWater Management District could default at any timeand simply “walk away” from the amount of moneyinvested. Frankenmuth applies here.

In a similar manner, this non-income producingplan depends on ad valorem taxes to repay bond-holders. The uncontradicted evidence from the WaterManagement District established that with the pro-posed involvement of federal funds and the integratednature of the proposed expansive water restorationwork, the Water Management District would not andcould not simply “walk away” from this land pur-chase. In my view, the decision to issue bonds to funda project without first obtaining approval through aconstitutionally mandated referendum is contrary tothe clear and plain words of article VII, section 12, of

the Florida Constitution. Article VII, section 12, wasclearly designed to address the expanding capitalneeds of local government, but was tempered by theinclusion of democratic control with regard to thedecision to finance “capital projects” with long-termdebt “payable from ad valorem taxation.” *832Art.VII, § 12, Fla. Const. In this context, the majority'savoidance of this clear command perpetuates and



Page 20



expands a distortion of our fundamental organic law,leads us beyond our prior precedent, and denies thevoters of this State their constitutional right to deter-mine whether their local governments should issue

long-term debt that is “payable from ad valorem tax-ation,” as that phrase is understood through its “usualand obvious meaning.” City of Jacksonville v. Cont'l

Can Co., 113 Fla. 168, 151 So. 488, 489-90 (Fla.1933) (“The words and terms of a Constitution are to beinterpreted in their most usual and obvious meaning....The presumption is in favor of the natural and popularmeaning in which the words are usually understood bythe people who have adopted them.”). With regard totypical “capital projects,” the Constitution unmistak-ably communicates that entities of local governmentare required to use a referendum to obtain voter ap-proval when a pledge of ad valorem tax revenue or ad

valorem taxing authority is a source of payment forrelevant forms of long-term debt. See art. VII, § 12,Fla. Const.

I write separately in this context to emphasize twoadditional points that, in my view, demonstrate theviolence that expansion of the legal fiction of State v.

Miami Beach Redevelopment Agency, 392 So.2d 875(Fla.1980), visits upon the plain text and manifestintent of article VII, section 12. First, much of our caselaw in this area has been opaque and counterintuitivedue to its complete divorce from the text of this con-stitutional provision. Cf. Cont'l Can Co., 151 So. at

490 (“Constitutions import the utmost discriminationin the use of language, that which the words declare is

the meaning of the instrument.” (emphasis added)).Here, the Court should not expand prior decisionsfrom different contexts to advance a movement awayfrom the text of article VII, section 12.

Second, article VII, section 10, of the FloridaConstitution (“Pledging Credit”) further underminesapplication of the “pledge of taxing power only”premise of Miami Beach in the context presented here.This separate, distinct constitutional provisiondemonstrates that the framers of our Constitution wereaware of, and intended a textual distinction between, an entity of local government “giv[ing], lend[ing] or

us[ing] its taxing power or credit,” as addressed inthat constitutional provision, and an entity of localgovernment issuing “bonds, certificates of indebted-ness or any form of tax anticipation certificates, pay-able from ad valorem taxation,” as addressed in articleVII, section 12. (Emphasis added.) If the framers had

truly intended for article VII, sections 10 and 12, toeach only address pledges of the taxing power of localgovernment, then these constitutional drafters wouldhave used similar language in section 12; however,

they did not do so. Thus, the faulty premise of Miami Beach accomplishes that which we are proscribedfrom doing as judicial officers who have sworn tosupport, protect, and defend our state Constitution: Itamends article VII, section 12, through judicial fiat byremoving and rendering meaningless the phrase“payable from ad valorem taxation” and replacing itwith materially different language drawn from a sep-arate, distinct constitutional provision (i.e., article VII,section 10). Cf., e.g., Burnsed v. Seaboard Coastline

R.R., 290 So.2d 13, 16 (Fla.1974) (“It is a fundamentalrule of construction of our [C]onstitution that a con-struction ... which renders superfluous, meaningless or

inoperative any of its provisions should not be adoptedby the courts.”).

As I have predicted before, like the hapless pro-tagonist in “Groundhog Day,” this *833 Court will beforced to continuously relive this controversy until we“get it right,” because the constitutional provision atissue simply does not support the gloss placed upon itby Miami Beach, which has been erroneously ex-panded to this context, and related, distinguishabledecisions. Sooner or later we must recognize that thefaulty expansion of Miami Beach to far different casesinvolving typical capital projects unjustifiably per-

petuates an obvious legal error and deprives Florida'scitizens of a clear constitutional right. Cf. Puryear v.

State, 810 So.2d 901, 905 (Fla.2002) ( “Our adherenceto stare decisis ... is not unwavering. The doctrine of stare decisis bends ... where there has been an error inlegal analysis.”).

When faced with a typical capital project, such asthe land-purchase plan involved in this case, I wouldinterpret and enforce article VII, section 12, as writtenand would also salvage and apply a long-forgottenportion of our Miami Beach decision: “The Courtlooks at the substance and not the form of the pro-posed bonds” to determine whether the entity of localgovernment has complied with the Constitution. 392So.2d at 894 (emphasis added). Where, as here, thebond-financing plan will inevitably lead to divertingfunds from ad valorem tax revenue to pay for or“service” the associated long-term debt for anon-revenue producing capital project, the Constitu-tion requires a referendum. See art. VII, § 12, Fla.



Page 21



Const.; see also Frankenmuth Mut. Ins. v. Magaha, 769 So.2d 1012, 1023-26 (Fla.2000) (holding thatcomputer lease-purchase agreement, which wouldinevitably have required Escambia County to appro-

priate ad valorem taxes to make lease payments, vio-lated article VII, section 12); County of Volusia v.

State, 417 So.2d 968, 972 (Fla.1982) (“That whichmay not be done directly may not be done indirectly.”(citing State v. Halifax Hosp. Dist., 159 So.2d 231(Fla.1963))). Political expediency cannot alter the textof the Florida Constitution nor should it be used tothwart the will of the voters of this State.

Consequently, I believe that expansion of the“pledge of taxing power only” premise of Miami

Beach to typical capital projects violates article VII,section 12, and that any associated local-government

bond-financing plan that will inevitably lead to di-verting funds from ad valorem tax revenue to servicerelated long-term debt requires a referendum underour state Constitution. Thus, even if we follow Miami

Beach, this project nevertheless violates article VII,section 12. Unlike Miami Beach, which involved aredevelopment project under the auspices of theCommunity Redevelopment Act (part III of chapter163, Florida Statutes (1975)), this case only involves atypical “capital project” within the meaning of articleVII, section 12. Furthermore, in contrast to Miami

Beach-where ad valorem tax revenue was only a con-

tingent source from which the city planned to service

the associated debt if the primary source proved in-sufficient-here, ad valorem tax revenue is the primary

source from which the debt created by these bondswill be paid. This distinction brings the instant casesquarely within the rule and rationale of County of

Volusia and Frankenmuth: The referendum require-ment cannot be circumvented because itsbond-financing scheme inevitably requires that it payfor its debt with ad valorem tax revenue.

The local-government shell game, which isplayed to avoid the Florida voter, should not be sanc-tioned by this tribunal. Unfortunately, we have doneso in the past and do so today by improperly expand-ing this game to the very “capital projects” addressedin article VII, section 12. Even good or great ideas thatrequire long-term *834 public debt payable from advalorem taxation must follow constitutional require-ments. For these reasons, I can join in the result only,but reject the unjustifiable expansion of a fundamen-tally flawed principle, which operates to circumvent

voter participation in a decision that requires popularvote approval under the Florida Constitution.

Fla.,2010. Miccosukee Tribe of Indians of Florida v. SouthFlorida Water Management Dist. 48 So.3d 811, 35 Fla. L. Weekly S675

END OF DOCUMENT



Page 1

80 So.2d 909 (Cite as: 80 So.2d 909)


Supreme Court of Florida, Division B. Joseph T. MILLER et al., Appellants,

v. Ernest E. CARBONELLI et al., Appellees.

June 15, 1955. Rehearing Denied June 30, 1955.

Suit by mayor and two councilmen of village

made against remaining councilman, town clerk, and

attorney to recover money paid attorney for his ser-

vices as attorney for representation of first councilmanin quo warranto action against first councilman by

second councilman. The Circuit Court, Dade County,

Marshall C. Wiseheart, J., entered judgment for de-

fendants, and plaintiffs appealed. The Supreme Court,

Thomas, J., held that where a councilman was elected

mayor of village by council as provided by village

charter and another councilman challenged by quo

warranto first councilman's right to office, council was

justified in expending public funds to insure that ac-

tion they had taken in choice of mayor was properly

defended.

Judgment affirmed.

West Headnotes




Expenditures 268k860 k. Purposes of Appropriations or

Expenditures in General. Most Cited Cases

Where a councilman was elected mayor of village

by council as provided by village charter, and another

councilman challenged by quo warranto first coun-

cilman's right to that office, council was justified in

expending public funds to insure that action they had

taken in choice of mayor was properly defended.

*909 Charles J. Bodner, Miami, for appellant.

Anderson, Scott, McCarthy & Preston, Robert H.

Anderson and George F. Gilleland, Miami, for ap-

pellees.

THOMAS, Justice. The complaint was filed by Joseph T. Miller,

Charles J. Bodner, as mayor and councilman, and Paul

J. Bauer, as councilman of the village of El Portal,

against Ernest E. Carbonelli, Edward A. Cudlipp, C.

L. Eddleblute, C. G. Nuckols, Fred L. Rouse, Joseph

A. Wanick and Donald L. West, councilmen of the

village, Elmer F. Boss, town clerk, and Robert H.

Anderson, an attorney. The plaintiffs were described

as citizens, residents and taxpayers of the village and

all parties, except Joseph T. Miller and Robert H.

Anderson, were represented as suing or sued in their

individual as well as official capacities.

The suit was brought as a class suit in behalf of

the village and its citizens to retrieve from the de-

fendants the sum of one thousand dollars paid An-

derson for his services as an attorney for the repre-

sentation of Cudlipp in a quo warranto action against

Cudlipp by Bodner.

Under the charter the mayor of the village is

elected by the councilmen from their number. The

council had elected Cudlipp to the post; Bodner chal-

lenged by quo warranto Cudlipp's right to the office.

The council, to protect Cudlipp's claim to the office by

defending the action it had taken in electing him, paid

the fee for his defense.

We see nothing wrong in the action. Though

Bodner and Cudlipp had a personal interest in the

outcome, the village itself had a primary stake in the

controversy because the office of mayor and the

powers exercised by the incumbent were cast in doubt

by the attack of one councilman against another.

In this quarrel within the councilmanic family the

issue not only immediately and directly affected the

proper governance and administration of village af-

fairs but the official action of the councilmen as

electors was challenged. In this situation the council



Page 2

80 So.2d 909 (Cite as: 80 So.2d 909)


was thoroughly justified in expending public funds to

insure that the action they had taken in the choice of a

mayor was properly defended, and consequently to

dispel any doubt about the exercise by Cudlipp of the

prerogatives of the office of mayor. Cf. City of Jack-sonville Beach v. Waybright, 130 Fla. 525, 178 So.

401; *910Godard v. Campbell, 143 Fla. 419, 196 So.

814; Cheesebrew v. Town of Point Pleasant, 71 W.Va.

199, 76 S.E. 424, 79 S.E. 350, L.R.A. 1917D, 237.

Affirmed.

DREW, C. J., and HOBSON and THORNAL, JJ.,

concur.

Fla. 1955 Miller v. Carbonelli 80 So.2d 909

END OF DOCUMENT



Page 1

407 So.2d 277 (Cite as: 407 So.2d 277)


District Court of Appeal of Florida, Third District. Charles NUZUM, John Harris, and Sergio Abreu,

Petitioners, v.

Rene VALDES and Florida Beverage License, Inc., a

Florida corporation, Respondents.

No. 81-861. Dec. 8, 1981.

Director of Division of Alcoholic Beverages and

executive employees of the Division, against whomcivil action had been brought for alleged interference

with advantageous business relationships and inten-

tional tort of conspiracy, applied for common-law

certiorari following entry of order prohibiting staff

counsel from Department of Business Regulation

from further representation of petitioners in their in-

dividual capacities. The District Court of Appeal,

Nesbitt, J., held that: (1) order constituted a material

injury not remediable after final judgment, and thus

application would be entertained, and (2) activation of

statute entitling public officers to representation at

public expense in certain cases was primarily an ex-

ecutive function, and thus order prohibiting staff counsel from representing petitioners personally con-

stituted departure from essential requirements of law

and would be quashed.

Ordered accordingly.

West Headnotes

[1] Certiorari 73 17

73 Certiorari 73I Nature and Grounds

73k11 Decisions and Proceedings of Courts,Judges, and Judicial Officers

73k17 k. Particular Proceedings in Civil

Actions. Most Cited Cases

Order prohibiting staff counsel from Department

of Business Regulation from further representation of

Director of Division of Alcoholic Beverages and ex-

ecutive employees of Division in their individual

capacities in civil suit for alleged interference with

advantageous business relationships and intentional

tort of conspiracy constituted a material injury not

remediable after final judgment, and thus application

of director and executive employees for common-law

certiorari would be entertained and order would be

reviewed.



283k119 k. Actions by or Against Officers andEmployees. Most Cited Cases

Statute governing representation of public offic-

ers at public expense recognized common-law prin-

ciple that public officer is entitled to representation at

public expense in a lawsuit arising from performance

of official duties while serving a public purpose; to

deny public official representation for acts purportedly

arising from performance of his official duties would

have a chilling effect upon proper performance of his

duties and diligent representation of public interest.

West's F.S.A. § 111.07.



283k119 k. Actions by or Against Officers and

Employees. Most Cited Cases

Under statute allowing representation of public

officer in civil suit at public expense, primary deter-

mination as to allowance of counsel is placed in re-

spective governmental unit rather than judiciary upon

challenge by private litigant, although this does not

preclude other properly authorized public officials likeAttorney General from challenging expenditures

made under statute. West's F.S.A. § 111.07.





Page 2

407 So.2d 277 (Cite as: 407 So.2d 277)


283k119 k. Actions by or Against Officers and

Employees. Most Cited Cases

Whether Director of Division of Alcoholic Bev-

erages and executive employees of Division wereentitled to representation at public expense in a civil

suit brought against them for alleged interference with

advantageous business relationships and intentional

tort of conspiracy was a determination primarily for

the executive agency, and thus trial court order pro-

hibiting staff counsel from Department of Business

Regulations from further representation of Director

and executive employees in their individual capacities

constituted departure from essential requirements of

law and would be quashed. West's F.S.A. § 111.07.

*278 Harold F. X. Purnell, Tallahassee, for petition-

ers.

Donsky & Diner and Manuel Diner, Miami, for re-

spondents.

Before HENDRY, NESBITT and JORGENSON, JJ.

NESBITT, Judge. [1] The petitioners are, respectively, the Director

of the Division of Alcoholic Beverages and executive

employees of the Division. The respondents, Valdes

and Florida Beverage License, Inc., commenced a

civil action against the petitioners personally alleging

an interference with advantageous business relation-

ships as well as the intentional tort of conspiracy. The

complaint alleges that they acted in bad faith and with

a malicious purpose. On motion of the plaintiffs, the

trial court entered an order prohibiting staff counsel

from the Department of Business Regulation from the

further representation of the petitioners in their indi-

vidual capacities. We have entertained the petitioners'

application for common law certiorari and review this

order because we have determined it constitutes a

material injury not remediable after final JUDGE-

MENT.

Section 111.07, Florida Statutes (1979) provides,

in pertinent part:

Any agency of the state, or any county, munici-

pality, or political subdivision of the state is au-

thorized to provide an attorney to defend any civil

actions brought against any of its officers, em-

ployees, or agents for acts or omissions arising out

of and in the scope of their employment or function,

unless, in the case of a tort action, such officer,

employee, or agent acted in bad faith, with mali-

cious purpose, or in a manner exhibiting wanton andwillful disregard of human rights, safety, or prop-

erty.

*279 [2] This statute recognizes the common law

principle that a public officer is entitled to represen-

tation at the public expense in a lawsuit arising from

performance of official duties while serving a public

purpose. Markham v. State, Department of Reve-

nue, 298 So.2d 210 (Fla. 1st DCA 1974); Duplig v.

City of South Daytona, 195 So.2d 581 (Fla. 1st DCA

1967). To deny a public official representation for acts

purportedly arising from the performance of his offi-

cial duties would have a chilling effect upon theproper performance of his duties and the diligent

representation of the public interest.

[3][4] Our study of the statute leads us to con-

clude that it was the intention of the Legislature that

the primary determination as to the allowance of

counsel be placed in the respective governmental unit

rather than with the judiciary upon challenge by a

private litigant.[FN1] Our view is buttressed by the

fact that a court is not in a position to determine

whether an officer, agent, servant, or employee has

acted in bad faith or with a malicious purpose until the

case has been terminated upon the merits. At such apoint, legal services then being provided by the

agency have been substantially concluded. Conse-

quently we find that the activation of the statute is

primarily an executive function.

FN1. This of course does not preclude other

properly authorized public officials like the

attorney general from challenging expendi-

tures made thereunder. See Ellison v. Reid,

397 So.2d 352 (Fla. 1st DCA 1981).

For the foregoing reasons, the order prohibiting

staff counsel of the Florida Department of BusinessRegulation from representing the director and em-

ployees of one of its divisions personally constitutes a

departure from the essential requirements of law for

which we award them certiorari and quash the order.

Fla.App. 3 Dist., 1981. Nuzum v. Valdes



Page 3

407 So.2d 277 (Cite as: 407 So.2d 277)


407 So.2d 277

END OF DOCUMENT





Supreme Court of Florida. PECK et al.

v. SPENCER.

June 6, 1890.

Appeal from circuit court, Volusia county; JOHND. BROOME, Judge.

West Headnotes

Equity 150 392

150 Equity 150VIII Hearing, Submission of Issues to Jury,

and Rehearing 150k392 k. Rehearing. Most Cited Cases

Though rule 90 of equity practice in the circuitcourts requires all applications for rehearing to be bypetition, where an application for rehearing on anorder dissolving an injunction is made by motion,objection thereto cannot be raised for the first time onappeal, as failure to make it when the application ismade waives the objection.

Injunction 212 1639

212 Injunction 212V Actions and Proceedings

212V(I) Continuing, Modifying, or Termi-nating

212k1628 Motions and Proceedings 212k1639 k. Reinstatement or revival.

Most Cited Cases

(Formerly 212k183)

Where a temporary injunction has been grantedand then dissolved, and the bill remains on file, andthe cause is still within the control of the court, it is noterror, on rehearing of the order dissolving the injunc-tion, to vacate that order and reinstate the injunctionwithout a refiling of the bill.

Municipal Corporations 268 995(2)

268 Municipal Corporations 268XIV Taxpayers' Suits and Other Remedies

268k991 Restraining Action by Municipalityor Officers

268k995 Misapplication of Funds 268k995(2) k. Payment of claims,

bonds, or warrants. Most Cited Cases

When a suit has been brought in the name of thestate to test the validity of the election of a person as

mayor of a town, and the council have authorized himto employ counsel to defend such suit at the expenseof the corporation, an injunction will lie, at the suit of ataxpayer, against such appropriation of the corporatefunds.

Syllabus by the Court 1. The bill alleges that complainant has caused a

suit to be instituted in the name of the state of Florida,upon complainant's relation, against B., to test thealleged election of B. as mayor of the town of D., andthat complainant is a tax-payer of the town, and, withthe other tax-payers of said town, is interested in

having the funds of the town applied exclusively forlegitimate purposes; and that the town council of D.have authorized B., acting mayor, to employ counselat the expense of the corporation to defend said suit. Held , that the allegations of the bill are sufficient togrant preliminary injunction upon.

2. An application for rehearing upon an order tovacate an order dissolving an injunction, under rule90, equity practice circuit courts, must be by petition;but when such application is upon motion, and there isno objection to the mode of the application in thelower court, and the objections is first made in the

appellate court, the objection comes too late. A failureto object at the proper time was a waiver of the objection.

3. It is not error after a bill has been filed andtemporary injunction granted, and an order grantedvacating the order granting the injunction and withoutrefiling the bill, to grant an injunction upon the bill as





originally filed, the bill still being on file, and the casebeing still under the control of the court.

4. An application of the funds of a town, derived

from taxation, for purposes beyond the purview of municipal grant, is a wrongful appropriation of thefunds held in trust for the tax-payers and people to paythe legitimate expenses of the town, and is null andvoid, and resident tax-payers have the right to invokethe interposition of a court of equity to prevent anillegal disposition of the moneys of the corporation, orthe illegal creation of a debt which they, in commonwith other property holders, may otherwise be com-pelled to pay. *24 **643 Doggett & Buckman, for appellants.

Hamlin & Stewart , for appellee.

MITCHELL, J. On the 3d day of January, 1889, the appellee filed

his bill in the circuit court of Volusia county againstthe appellants, and, among other things, the bill al-leges, (substantially:)

That an election was held in and for the town of Daytona, July 24, 1889, at which a mayor, council-man, and treasurer were to be elected, and that thecomplainant and one Courtland Buckman were can-didates for the office of mayor of said town, and thatthe election so held was illegal.

That the complainant has caused a suit to be in-stituted in the name of the state of Florida, uponcomplainant's relation, against the said Buckman, totest the legality of said election, and that the com-plainant is a tax-payer in *25 said town, and with theother tax-payers thereof is interested in having thefunds of the town applied exclusively for legitimatepurposes.

That the town council of the said town have au-thorized the said Buckman, acting mayor, to employcounsel at the expense of the corporation to defend

said suit, and threatened suits against the councilmenand treasurer of said town.

The prayer of the bill is for an injunction re-straining said town authorities from expending thefunds of the town in defending such suits.

Upon filing the bill and affidavits, a preliminaryinjunction was granted as prayed.

Afterwards, on September 16, 1889, upon motion

of respondents and affidavits filed by them, the injunction was dissolved. On the 17th day of the samemonth, upon motion of the complainant, and afterhearing argument, the court granted an order vacatingthe order of September 16th dissolving the injunction,and reinstating the injunction. On the same day (Sep-tember 17th) solicitors for respondents filed theirobjections and exceptions to the granting of the ordervacating the order dissolving the injunction, andgranting the injunction.

The objections and exceptions to the rulings of the court were:

That the bill sets up no title to such relief in thecomplainant.

That it is not properly sworn to.

That this court has no jurisdiction of such matters.

That there is no reason for the interference of acourt of equity herein, or the granting of such a writ.

That the bond is too small.

*26 This motion was overruled, and respondentsappealed, and have filed the following assignment of errors:

(1) That the judge erred in permitting the filing of the bill in said cause.

(2) That the judge erred in entertaining said cause,and in granting the restraining order of September 2,1889.

(3) That the judge erred in granting the order of

September 17, 1889, vacating the order previously andsolemnly made by him on the 16th day of September,1889, dissolving the restraining order granted by himon September 2, 1889.

(4) That the judge erred in refusing to grant themotion of September 17, 1889.





(5) That the judge erred in receiving, filing, andapproving the paper called an ‘injunction bond,’ onSeptember 17, 1889.

(6) That said judge erred in granting the re-straining order of September 17, 1889.

(7) That said judge erred in refusing the motion todissolve the restraining order granted on September17, 1889.

As to the first assignment of error. We are unableto comprehend the reasoning of counsel for appellantsin their contention that the court erred in allowing thebill filed, because, under the statute, the bill had to befiled before the granting of the injunction, and the judge could have known nothing of the bill before itwas filed, and could therefore have committed noerror, as he had no control over the bill until it wasfiled.

Second . We see no error in granting the prelimi-nary injunction. There is enough in the record, wethink, to show that before the restraining order wasgranted the bill had been filed, and that the allegationsof the bill were sufficient to grant the order upon. It isurged that the bill was not *27 properly sworn to, theaffidavit being upon information and belief, but this isnot tenable. The affidavit is ‘that Champlin H. Spen-cer, hearing the bill read and knowing the contentsthereof, swears that the same is true of his ownknowledge, except as to the matters therein stated oninformation and belief, and as to those matters hebelieves it to be true.’ All the allegations of the bill areupon the knowledge of the complainant, except as tothe alleged illegal appropriation of the town funds, andas to this allegation complainant filed the affidavit of R. B. Woolseley, and what purports to be a transcriptof the record of the proceedings of the town council of Daytona, showing that the said council had appropri-ated the sum of $200 **644 to defend the suits againstthe town authorities, for the purpose of showing the

information upon which he based his information andbelief in regard thereto. And the affidavit, when cou-pled with this evidence, is in strict compliance withthe statute in such cases.

It is contended that the court below erred ingranting the order vacating the order dissolving theinjunction upon mere motion.

Rule 90, equity practice in the circuit courts, re-quires all applications for rehearing to be by petition;and, as the application in the case under consideration

was upon motion, if the respondents had objected inthe court below upon the ground that the applicationfor rehearing was upon motion, instead of petition, theobjection would have been decisive of the case. Butthis objection was not made in the court below, and infailing to make the objection at the proper time therespondents waived it. The objection comes too latewhen, as in this case, i t is made for the first time in theappellate court.

It is further contended that the court erred ingranting *28 the injunction, after the order of the 16thof September, 1889, dissolving the injunction, without

again filing the bill; but in this we do not agree withcounsel for appellants. A bill has been filed, it was stillon file, and the case was still under the control of thecourt; it had not been finally disposed of; and therewas, under the circumstances, no error in the courttreating the bill as filed.

As to the alleged illegality of said election, weexpress no opinion; that question cannot be raised byinjunction.

There is but one other question to be considered,which is, did the court below err in granting the order

prohibiting the application of the corporation funds tothe payment of the expenses of said suits? We think not. It is contended for counsel for appellants thatmunicipal corporations have the right to sue and besued, to employ counsel to bring and defend suits, toprotect its officers, and to indemnify them against actsdone in the discharge of their duty; and cite McClel.Dig. 247; Smith v. Mayor, etc., 13 Cal. 531; 1 Dill.Mun. Corp. § 98; Pike v. Middleton, 12 N. H. 278; Fuller v. Groton, 11 Gray, 340; Sherman v. Carr, 8 R.I. 431; Briggs v. Whipple, 6 Vt. 95.

This contention is partly correct, and it is sup-

ported by the authorities cited. The right of a corpo-ration, when it is interested, to sue and defend suits, isindisputable, and that municipal officers will be pro-tected so long as they keep strictly within the dis-charge of their duties is equally true; but all corpora-tions, whether public or private, derive their powersfrom legislative grant, and can do no act for whichauthority is not expressly given, or may not be rea-





sonably inferred. 1 Dill. Mun. Corp. § 55. And now,admitting the right of corporations to sue and to de-fend suits, and to protect their officers in the lawfuldischarge of their duties, to be correct, still, where did

the town council of Daytona derive their powers *29 to appropriate money in the defense of contestedelections in the result of which the corporation had nopecuniary interest whatever? Such power is not givenin its charter, either expressly or by reasonable im-plication. These contests are personal, and the corpo-ration can have no interest in the result, and an ap-propriation to pay any one of the parties the expenseshe may be put to is without legal authority.

An ordinance making an appropriation of thefunds of a town or city, derived from taxation, forpurposes wholly beyond the purview of municipal

grant, is a wrongful appropriation of the funds held intrust for the tax-payers and people to pay the alimonyand legitimate expenses of the town or city, and is, inshort, ultra vires, null and void. Resident tax-payershave the right to invoke the interposition of a court of equity to prevent an illegal disposition of the moneysof a municipal corporation, or the illegal creation of adebt which they, in common with other propertyholders, may otherwise be compelled to pay. 10 Amer.& Eng. Enc. Laws, 962, and numerous authoritiesthere cited; Lanier v. Padgett, 18 Fla. 842; Cotten v.County Com'rs, 6 Fla. 610; Murphy v. City of Jack-sonville, 18 Fla. 318.

The judgment of the court below is affirmed.

Fla. 1890 Peck v. Spencer 26 Fla. 23, 7 So. 642

END OF DOCUMENT



Page 1

495 So.2d 183, 11 Fla. L. Weekly 521 (Cite as: 495 So.2d 183)


Supreme Court of Florida. STATE of Florida, etc., Appellant,

v. DIVISION OF BOND FINANCE, etc., Appellee.

No. 69087. Oct. 9, 1986.

Division of Bond Finance sought validation of home ownership mortgage revenue bond issue. Afterhearing, the Circuit Court, Leon County, Charles E.

Miner, Jr., J., validated the bonds, and State appealed.The Supreme Court, McDonald, C.J., held that: (1)DBF could issue taxable bonds pursuant to authoritythat did not specify certain type of bonds, and (2) Statehad failed to demonstrate that declarations of publicpurpose for bond issue were erroneous.

Affirmed.

West Headnotes

[1] States 360 148


curities 360k146 Bonds and Other Securities

360k148 k. Power and Duty to Issue. MostCited Cases

State Division of Bond Finance could issue taxa-ble bonds, pursuant to grant of authority to issue bondswithout specification of certain type of bonds. West'sF.S.A. §§ 215.57-215.83, 420.501-420.516.

[2] States 360 148


curities 360k146 Bonds and Other Securities

360k148 k. Power and Duty to Issue. MostCited Cases

State had failed to demonstrate that declarationsof public purpose of bond issue of $200,000,000 homeownership mortgage revenue bonds, indicated in res-olutions adopted by housing agency, governor andcabinet that bonds would serve public purpose byproviding mortgages for low, moderate, and middleincome persons at reasonable rates, were erroneous.



92VI(C) Determination of ConstitutionalQuestions 92VI(C)3 Presumptions and Construction as

to Constitutionality 92k998 Intent of and Considerations

Influencing Legislature 92k999 k. In General. Most Cited

Cases (Formerly 92k48(5))

Legislative declarations of public purpose arepresumed valid and are to be considered correct unlesspatently erroneous.

*183 William N. Meggs, State Atty., Second JudicialCircuit, Tallahassee, for appellant.

Raymond K. Petty of Division of Bond Finance, Tal-lahassee, for appellee.

McDONALD, Chief Justice. The state appeals a trial court order validating a

bond issuance by a state agency. We have jurisdictionpursuant to article V, section 3(b)(2), Florida Consti-tution, and affirm the trial court's order.

In February 1986 the Florida Housing FinanceAgency adopted a resolution authorizing the issuanceof $200,000,000 Home Ownership Mortgage RevenueBonds. Sitting as the governing board of the FloridaDivision of Bond Finance (DBF), the governor andcabinet also adopted a resolution authorizing suchbond issue. DBF then filed its complaint in the circuitcourt seeking validation of the bond issue. After



Page 2

495 So.2d 183, 11 Fla. L. Weekly 521 (Cite as: 495 So.2d 183)


holding a hearing on the matter, the trial court vali-dated the bonds.

On appeal the state claims that the court's order

should be reversed because DBF is not authorized toissue taxable, as opposed to tax-exempt, bonds andbecause the subject bond issue fails to serve a publicpurpose. We disagree with the state's contentions.

The court's order states that these bonds “may besold as either taxable, tax-exempt or any combinationthereof.” In its findings of fact the court recognizedthat DBF has no specific statutory authority to issuetaxable bonds. It also found, however, that there is nostatutory prohibition against issuing taxable bonds.Moreover, the court noted that the 1986 legislatureamended section 215.84, Florida Statutes, *184 to

provide for interest waivers for taxable bonds issuedon behalf of state agencies.FN1

FN1. Ch. 86-15, § 1, Laws of Fla., added thefollowing sentence to the end of § 215.84(1),Fla.Stat. (Supp.1986): “This section shall beapplicable to debt instruments whose interestis either taxable or tax exempt from incometaxation under federal law existing on thedate the bonds are issued.”

[1] DBF claims that its authority to issue thesebonds,FN2 by not specifying one or the other, encom-

passes both taxable and tax-exempt bonds. On its facethe term “bonds” includes both taxable andtax-exempt bonds. Because the legislature did notspecify a certain type of bonds, we conclude that DBFmay issue these taxable bonds.

FN2. §§ 215.57-215.83, 420.501-420.516,Fla.Stat. (1985).

[2][3] The trial court also found that the bondswill serve a public purpose by providing mortgages forlow, moderate, and middle income persons at rea-sonable rates. Compare State v. City of Pensacola, 397

So.2d 922 (Fla.1981) (projects promoting decenthousing serve a public purpose); State v. Housing

Finance Authority, 376 So.2d 1158 (Fla.1979) (projects alleviating a shortage of affordable housing andmaking capital available for investment in housingserve a public purpose). This finding echoes thefindings in the resolutions adopted by the housingagency and the governor and cabinet. Legislative

declarations of public purpose are presumed valid andare to be considered correct unless patently erroneous.Pepin v. Division of Bond Finance, 493 So.2d 1013(Fla.1986). The state has failed to demonstrate that the

instant declarations of public purpose are erroneous.

Therefore, we affirm the trial court's order vali-dating these bonds.

It is so ordered.

ADKINS, BOYD, OVERTON, EHRLICH, SHAWand BARKETT, JJ., concur.

Fla.,1986. State v. Division of Bond Finance 495 So.2d 183, 11 Fla. L. Weekly 521

END OF DOCUMENT



Page 1

392 So.2d 875 (Cite as: 392 So.2d 875)


Supreme Court of Florida. The STATE of Florida et al. and Homeowners and

Tenants Protective Association, Inc., etc., Appellants, v.

MIAMI BEACH REDEVELOPMENT AGENCY,etc., Appellee.

No. 57997. Dec. 11, 1980.

Rehearing Denied Feb. 11, 1981.

Appeal was taken by the State and various inter-venors from a judgment of the Circuit Court, DadeCounty, Thomas A. Testa, J., validating bonds pro-posed for issue by a city redevelopment agency. TheSupreme Court held that: (1) the redevelopmentagency in the case was an entity authorized by statuteto issue bonds; (2) the agency was a legally constitutedentity with power to issue bonds in respect to a rede-velopment project within boundaries of city; (3) bondissues in case received the approval of a “governingbody” as required by statute; (4) statutes authorizingredevelopment projects involving expenditure of public funds and providing basis in case for issuance

of redevelopment bonds in a blighted area was infurtherance of a public purpose and was constitution-al; (5) conditions justifying exercise of redevelopmentpowers were established by competent, substantialevidence; and (6) proposed financing plan to issuanceof bonds did not come within constitutional referen-dum requirement for ad valorem taxation.

Affirmed.

Alderman, J., concurred in result only.

Boyd, J., concurred in part and dissented in part

and filed opinion.

McDonald, J., dissented.

West Headnotes





268k917(2) k. Determination of Valid-ity. Most Cited Cases

Statute authorizing the filing of a complaint todetermine authority to incur a bonded debt by anycounty, municipality, taxing district or other politicaldistrict or subdivision of the state encompassed allentities with authority to issue bonds and, hence, au-thorized the city redevelopment agency to institute anaction for validation of bonds it proposed to issue tofinance land acquisition and finance improvements inconnection with community redevelopment projects.West's F.S.A. § 75.02.

[2] Municipal Corporations 268 1.1


lution

268I(A) Incorporation and Incidents of Ex-istence 268k1 Nature and Status as Corporations

268k1.1 k. In General. Most Cited Cases (Formerly 268k1)

The city redevelopment agency was a legallyconstituted entity despite claim that the city had noauthority to create the agency until after redevelop-ment authority was delegated to it by the county and itadopted a resolution finding the existence of blightwhere the county expressly referred to and recognizedthe city's creation of the agency with delegated rede-

velopment powers to the city so that anything the citydid without authority was ratified by that county, thecity reaffirmed its earlier finding of blight and itscreation of the redevelopment agency, and the countymade clear its ratification of the actions taken by thecity when it subsequently approved a bond resolutionadopted by the agency. West's F.S.A. §§ 163.360,163.410.



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268k917(2) k. Determination of Valid-ity. Most Cited Cases

The bond issues of the city redevelopment au-thority did receive the approval of the “governingbody” of the city as required by statute since, when thecounty delegated redevelopment powers to the city, itreserved the authority to give final approval to anybond issue, the county commission did approve thesubject issues by resolution, and when the city adoptedand approved the final redevelopment plan, its actionconstituted an approval of the bonds, if one was nec-essary, sufficient to satisfy the statutory requirements.West's F.S.A. §§ 163.385(3), 163.410.




268k957 Constitutional Requirements andRestrictions

268k957(3) k. Limitations as to Rate orAmount, or Property or Persons Taxable. Most CitedCases

Purpose of constitutional provision prohibiting amunicipality from using its taxing power to aid anycorporation, association, partnership or person is toprotect public funds and resources from being ex-ploited in assisting the promoting of private ventureswhen public would be at most only incidentally ben-efited. West's F.S.A.Const. Art. 7, § 10.

[5] Eminent Domain 148 13

148 Eminent Domain 148I Nature, Extent, and Delegation of Power

148k12 Public Use 148k13 k. In General. Most Cited Cases

If a project serves a public purpose sufficient toallow expenditure of public funds and sale of bonds,then use of eminent domain in furtherance of project is

also proper. West's F.S.A.Const. Art. 7, § 10; Art. 10,§ 6.


268 Municipal Corporations 268IX Public Improvements

268IX(B) Preliminary Proceedings and Ordi-nances or Resolutions

268k297 Remonstrances or Objections 268k297(1) k. In General. Most Cited

Cases

Challenge to legality of redevelopment project tobe financed by proposed bonds was proper whereinvalidation proceedings brought by city redevelop-ment agency involved a determination not only of authority of agency to issue bonds and revenue cer-tificates, but also authority of agency to lawfully ex-pend proceeds for a contemplated purpose. West'sF.S.A. §§ 163.335(1-3), 163.340(7).


148 Eminent Domain

148I Nature, Extent, and Delegation of Power 148k65 Determination of Questions as to Va-lidity of Exercise of Power

148k67 k. Conclusiveness and Effect of Legislative Action. Most Cited Cases

Determination of legislature that projects usingeminent domain to clear blighted areas and providingfor ultimate disposition of substantial portions of acquired properties for use of private concerns inprofit-making activities serve a public purpose, whilenot conclusive, is presumed valid and should be up-held unless it is arbitrary or unfounded or so clearly

erroneous as to be beyond power of legislature. West'sF.S.A. §§ 163.360(6)(a), 163.370, 163.370(1)(i),163.375, 163.375(1-3).





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148k60 Taking for Private Use 148k61 k. In General. Most Cited Cases


268 Municipal Corporations 268VI Property

268k223 k. Purposes for Which Property MayBe Acquired or Held. Most Cited Cases

A public body may not use its governing authorityover public funds to acquire land, whether by purchaseor eminent domain, where only purpose of acquisitionis to make properties available for private uses. West'sF.S.A. §§ 163.360(6)(a), 163.370, 163.370(1)(i),163.375, 163.375(1-3).

[9] Eminent Domain 148 18.5


148k16 Particular Uses or Purposes 148k18.5 k. Urban Renewal; Blight. Most

Cited Cases



268XIII(A) Power to Incur Indebtedness andExpenditures

268k859 k. Constitutional and StatutoryProvisions. Most Cited Cases




268k907 k. Constitutional and StatutoryProvisions. Most Cited Cases

Statutes which authorized redevelopment projectsinvolving expenditure of public funds, sale of publicbonds, use of eminent domain for acquisition andclearance, and substantial private and commercialuses after redevelopment, and which provided a basisfor issuance of bonds by city redevelopment agency tofinance land acquisition and improvements for rede-

velopment of a blighted area were in furtherance of apublic purpose and were constitutional notwithstand-ing that there were to be private commercial uses inredeveloped area. West's F.S.A. §§ 163.360(6)(a),

163.370, 163.370(1)(i), 163.375, 163.375(1-3),163.380(1, 2), 163.385, 163.385(2), 163.387(1).




268k909 Purposes of Issue of Bonds 268k911 k. Public Improvements. Most

Cited Cases

Conditions ranging from conservation and reha-bilitation programs to area-wide acquisition andclearance were established by competent, substantialevidence and were such as to justify exercise of re-development powers by city redevelopment agencythrough issuance of bonds to finance a redevelopmentproject in a blighted area. West's F.S.A. §§163.335(1-3), 163.340(7).





268k918(1) k. In General. Most CitedCases

Financing plan proposed by city redevelopmentagency through issuance of bonds with respect toredevelopment project in a blighted area did not comewithin constitutional referendum requirement for advalorem taxation where statute and bond resolutionsdeclared that there was no pledge on the county andcity ad valorem taxing power, statute provided thatbond holders' lien attached only after revenues weredeposited in trust fund, and ad valorem tax was notnecessarily deposited directly into fund, but wasmerely the measure of contributions county and citywould make annually from its general operating rev-enues until bonds had been paid. West's F.S.A. §



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163.387(1, 2); West's F.S.A.Const. Art. 7, § 12.



92VI(C) Determination of ConstitutionalQuestions

92VI(C)3 Presumptions and Construction asto Constitutionality

92k996 k. Clearly, Positively, or Un-mistakably Unconstitutional. Most Cited Cases

(Formerly 92k48(1))

Constitutional Law 92 999

92 Constitutional Law 92VI Enforcement of Constitutional Provisions 92VI(C) Determination of Constitutional

Questions 92VI(C)3 Presumptions and Construction as

to Constitutionality 92k998 Intent of and Considerations

Influencing Legislature 92k999 k. In General. Most Cited

Cases (Formerly 92k48(1))

A legislative finding of constitutionality is pre-sumptively correct, but a court must disapprove of it if it is clearly erroneous, and must look at the substancerather than the form.




268k940 Bona Fide Purchasers 268k943 Effect of Recitals in Bonds

268k943(1) k. In General. Most Cited

Cases

Once bonds are validated, and if appealed, vali-dation is affirmed, then recitations of constitutionalityand satisfaction of conditions precedent are binding onthe issuing authority, which will not be heard toquestion such matters in actions brought for the en-forcement of bondholders' rights.




268k940 Bona Fide Purchasers 268k943 Effect of Recitals in Bonds

268k943(3) k. Performance of Con-ditions Precedent to Issue and Regularity Thereof.Most Cited Cases

Where bonds are unconstitutional and void abinitio, and the purchaser takes them with knowledge of their potential invalidity, recitals of constitutionalitywill not be held binding on the issuer, but after vali-dation, the courts will protect even the purchasers of unconstitutional bonds.




268k960 Power to Tax for Special Purposes 268k964 k. Payment of Indebtedness.

Most Cited Cases

When a government agency with taxing power isauthorized by statute to levy a tax and to appropriatethe proceeds thereof due to the payment of bonds, thestatutory authority to levy the tax may be regarded asmandatory and not merely permissible; after bondshave been issued, validated and sold, the statutoryauthority to devote governmental revenues to theretirement of bonds becomes a contractual duty to doso.


268 Municipal Corporations 268XIII Fiscal Matters 268XIII(C) Bonds and Other Securities, and

Sinking Funds 268k918 Submission of Question of Issue of

Bonds to Popular Vote 268k918(1) k. In General. Most Cited

Cases



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Words “payable from ad valorem taxation,” inconstitutional provision that power of counties, schooldistricts, municipalities, special districts and local

governmental bodies with taxing powers to borrow forcapital projects, for terms in excess of 12 months, isconditioned, where obligations are to be payable fromad valorem taxation, on approval of eligible voters byreferendum, did not preclude local revenue sourcesother than ad valorem taxation from being pledgedwithout referendum. West's F.S.A.Const. Art. 7, § 12.





268k918(1) k. In General. Most CitedCases

That the statutory duty of the city and county tomake the annual contributions would become a con-tractual duty, part of the obligation of the redevelop-ment bonds, did not mean that those bonds werepayable from ad valorem taxation in the sense of theconstitutional referendum requirement. West's F.S.A.§ 163.387(1, 2); West's F.S.A.Const. Art. 7, § 12.

[18] Counties 104 195

104 Counties 104IX Taxation

104k195 k. Disposition of Taxes and OtherRevenue. Most Cited Cases




268k984 Disposition for Municipal Pur-poses of Taxes and Other Revenue

268k986 k. Taxes for Special Purposes.Most Cited Cases

There is nothing in the constitution to prevent a

county or city from using ad valorem tax revenueswhere they are required to compute and set aside aproscribed amount, when available, for a discreetpurpose. West's F.S.A.Const. Art. 7, § 12.

*878 Janet Reno, State Atty., and Milton Robbins,Asst. State Atty., Miami, for appellants.

W. Robert Olive, Jr. and Hugh M. Taylor of Bryant,Miller & Olive, Tallahassee, and Murray H. Dubbin of Dubbin, Schiff, Berkman & Dubbin, Miami, for ap-pellee.

Joseph A. Wanick, Miami, for intervening appellant.

William S. Turnbull, Orlando, and Fred W. Baggett of Roberts, Miller, Baggett, LaFace, Richard & Wiser,Tallahassee, for Florida Downtown DevelopmentAss'n, amicus curiae.

PER CURIAM. This cause is before the Court on appeal of a

judgment of the Circuit Court of the Eleventh JudicialCircuit, in and for Dade County, validating bondsproposed for issue by the Miami Beach Redevelop-ment Agency. The State of Florida and intervenorsappeal; we have jurisdiction. Art. V, s 3(b)(2),Fla.Const.; s 75.08, Fla.Stat. (1979). We affirm the judgment of the trial court.

The Miami Beach Redevelopment Agency wascreated by the commission of the city of Miami Beachpursuant to the Community Redevelopment Act of 1969, chapter 69-305, Laws of Florida, codified aschapter 163, part III, Florida Statutes (1975). The actwas amended in 1977 to authorize “tax incrementfinancing” of community redevelopment projectswithout referendum. Ch. 77-391, Laws of Fla.; see ch.163, pt. III, Fla.Stat. (1977).

The State Attorney of the Eleventh Judicial Cir-cuit, on behalf of the state, has raised a number of issues on appeal of the validation decree.

Section 163.335(1), Florida Statutes (1977), de-clares that slums and blighted areas in the state are “aserious and growing menace, injurious to the publichealth, safety, morals, and welfare....” It states furtherthat the existence of slums and blighted areas con-tributes to “the spread of disease and crime....” Such



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areas are “an economic and social liability imposingonerous burdens which decrease the tax base andreduce tax revenues,” and their existence “impairs orarrests sound growth, retards the provision of housing

accommodations, aggravates traffic problems andsubstantially hampers the elimination of traffic haz-ards and the improvement of traffic facilities; ....”Finally, subsection (1) finds and concludes

that the prevention and elimination of slums andblight is a matter of state policy and state concern inorder that the state and its counties and municipali-ties shall not continue to be endangered by areaswhich are focal centers of disease, promote juveniledelinquency, and consume an excessive proportionof its revenues because of the extra services re-quired for police, fire, accident, hospitalization, and

other forms of public protection, services, and fa-cilities.

Section 163.335(2) contains a declaration of therange of public policy responses that are deemed ap-propriate in dealing with the problems of slums andblight. Some slums and blighted areas “can be con-served and rehabilitated through appropriate publicaction....” By the “means provided in this part,” suchconservation or rehabilitation may be effected so as toeliminate, remedy, or prevent the “evils enumerated.”Other slums and blighted areas, in contrast, “or por-tions thereof, may require acquisition, clearance, and

disposition subject to use restrictions, as provided inthis part, since the prevailing condition of decay maymake impracticable the reclamation of the area byconservation or rehabilitation.”

*879 Section 163.335(3) finds and declares thatredevelopment as contemplated by the act is a publicpurpose for which public funds may be expended andthe power of eminent domain and the police powerexercised.

Section 163.340(7) defines a slum as follows:

(7) “Slum area” means an area in which there is apredominance of buildings or improvements,whether residential or nonresidential, which byreason of dilapidation, deterioration, age or obso-lescence, inadequate provision for ventilation, light,air, sanitation, or open spaces, high density of pop-ulation and overcrowding, the existence of condi-tions which endanger life or property by fire or other

causes, or any combination of such factors is con-ducive to ill health, transmission of disease, infantmortality, juvenile delinquency, or crime and isdetrimental to the public health, safety, morals, or

welfare.

The act defines a blighted area as follows: (8) “Blighted area” means an area in which there

are a substantial number of slum, deteriorated, ordeteriorating structures and conditions which en-danger life or property by fire or other causes or oneor more of the following factors which substantiallyimpairs or arrests the sound growth of a county ormunicipality and is a menace to the public health,safety, morals, or welfare in its present conditionand use:

(a) Predominance of defective or inadequatestreet layout;

(b) Faulty lot layout in relation to size, adequacy,accessibility or usefulness;

(c) Unsanitary or unsafe conditions;

(d) Deterioration of site or other improvements;

(e) Tax or special assessment delinquency ex-ceeding the fair value of the land; and

(f) Diversity of ownership or defective or unusualconditions of title which prevents the free aliena-bility of land within the deteriorated or hazardousarea.

s 163.340(8), Fla.Stat. (1977).

The essential difference between the two con-cepts as defined by the legislature is that a slum is anarea where conditions actively and directly menacethe essential public order while a blighted area is onewhere conditions are not conducive to sound growth

and the public good is impaired by the various im-pediments to such growth.

Section 163.350 provides that general purposelocal government units counties and municipalitiesmay, for the purposes of the act, formulate “a worka-ble program for utilizing appropriate private and pub-lic resources to eliminate and prevent the development



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or spread of slums and urban blight.” To the objectivesof encouraging needed community rehabilitation andproviding for the redevelopment of slums and blightedareas, the statute again indicates a range of responses

that may be appropriate:

Such workable program may include provisionfor the prevention of the spread of blight into areasof the county or municipality which are free fromblight through diligent enforcement of housing,zoning, and occupancy controls and standards; therehabilitation or conservation of slum and blightedareas or portions thereof by replanning, removingcongestion, providing parks, playgrounds and otherpublic improvements, encouraging voluntary reha-bilitation, and compelling the repair and rehabilita-tion of deteriorated or deteriorating structures; and

the clearance and redevelopment of slum andblighted areas or portions thereof.

s 163.350, Fla.Stat. (1977).

Section 163.355 requires that, in order for acounty or municipality to exercise the authority con-ferred by the act, its governing body must find anddeclare by resolution that: (1) one or more slums orblighted areas exist within its boundaries and (2) thatrehabilitation, conservation, “redevelopment,” or acombination thereof is necessary “in the interest of thepublic health, safety, morals, or welfare of the resi-

dents of such county or municipality.”

After having made such a finding of necessity, thegoverning body of the county or municipality maycreate a community redevelopment*880 agency, sep-arately constituted if necessary under section 163.356,or it may constitute itself as the community redevel-opment agency. s 163.357. The agency's authorityincludes “all the powers necessary or convenient tocarry out and effectuate the purposes and provisions of this part,” except that the governing body of thecounty or municipality retains the power to: (1) des-ignate an area as a slum or blighted, determine the

appropriateness of a redevelopment project, and holdpublic hearings on these matters; (2) finally approveredevelopment plans; (3) authorize the issuance of bonds; and (4) approve the acquisition, demolition,removal, or disposal of property and assume respon-sibility for losses. s 163.358.

In a chartered county, the powers conferred by the

act are conferred on the county governing body. Thecounty may, however, delegate the redevelopmentpowers to a municipality within its boundaries. s163.410.

Section 163.360 provides that, once the county ormunicipal governing body has determined that an areais a slum or is blighted, and has designated it as ap-propriate for redevelopment, it may adopt a redevel-opment plan by following the steps and proceduresoutlined in the act. A community redevelopment“plan” is a description of a community redevelopment“project.” It must indicate any acquisition, demolition,and removal of structures, as well as any improve-ments to be constructed and land uses provided forafter redevelopment. In considering any proposedredevelopment plans, and before adopting one, the

governing body must hold public hearings. The actrequires detailed findings on the propriety of a pro-posed redevelopment plan.

Section 163.370 provides that the redevelopmentpowers conferred include the authority to carry outprojects involving the acquisition of slums andblighted areas, the demolition of buildings, the con-struction of streets, utilities, parks, playgrounds, andother improvements, disposition of properties atmarket value, programs of voluntary rehabilitation,and rehabilitation and sale of acquired struc-tures.[FN1]

FN1. As will be discussed later on in thisopinion, the redevelopment agency mayconstruct almost any kind of “improvement”deemed to be desirable. It may even constructluxurious housing units for subsequent saleor lease to private persons. Subsections163.370(1)(a) 8 & 9 pertain to the use of “airrights sites” and contain an interesting limi-tation, not involved in this proceeding, on theuse of such sites for housing. Section163.370 outlines the powers of counties andmunicipalities to undertake projects, and

such projects may include:

8. Acquisition, without regard to any re-quirement that the area be a slum orblighted area, of air rights in an area con-sisting principally of land in highways,railway or subway tracks, bridge or tunnelentrances, or other similar facilities which



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have a blighting influence on the sur-rounding area and over which air rightssites are to be developed for the elimina-tion of such blighting influences and for

the provision of housing (and related fa-cilities and uses) designed specifically for,and limited to, families and individuals of low or moderate income.

9. Construction of foundations and plat-forms necessary for the provision of airrights sites of housing (and related facili-ties and uses) designed specifically for,and limited to, families and individuals of low or moderate income.

s 163.370(1)(a), Fla.Stat. (1977).

The governing body's findings must include, s163.360(6)(a), and the redevelopment project mayinclude, consideration of the problem of and provisionfor relocation of displaced residents of the redevel-opment area. s 163.370(1)(i).

In section 163.375, the act provides that counties,municipalities, and redevelopment agencies shall havethe power of eminent domain to effectuate the pur-poses of the act. That is, they may “acquire by con-demnation any interest in real property, including a feesimple title thereto, which it may deem necessary for,

or in connection with, a community redevelopmentproject and related activities under this part.” s163.375(1). In eminent domain proceedings, evidenceof illegal or nonconforming uses and conditions, andtheir effect on the value of the property, are declared tobe admissible in evidence. s 163.375(2), (3).

The community redevelopment agency, afterhaving acquired property in connection*881 with aredevelopment project, may sell, lease, otherwisetransfer, otherwise dispose of, or retain such propertyfor use in accordance with use restrictions imposed toeffect the purpose of the redevelopment plan. s

163.380(1). The property must be disposed of atmarket value, s 163.380(2), and there must be publicnotice of the opportunity for interested persons toparticipate in redevelopment.

Section 163.385 provides the authority for theissuance of bonds to finance redevelopment projects.It provides in part that, “(t)he security for such bonds

may be based upon the anticipated assessed valuationof the completed community redevelopment projectand such other revenues as may be legally available.”Subsection (2) provides:

Bonds issued under this section shall not consti-tute an indebtedness within the meaning of anyconstitutional or statutory debt limitation or re-striction, and shall not be subject to the provisionsof any other law or charter relating to the authori-zation, issuance, or sale of bonds. Bonds issuedunder the provisions of this part are declared to beissued for an essential public and governmentalpurpose and, together with interest thereon and in-come therefrom, shall be exempted from all taxes,except those taxes imposed by chapter 220 on in-terest, income, or profits on debt obligations owned

by corporations.

s 163.385(2).

The act provides as the mechanism for the fi-nancing of projects that each redevelopment agencyshall establish a redevelopment trust fund. The gov-erning body of the local government unit must, beforethe exercise of any redevelopment powers, provide byordinance for the funding of the trust fund. s163.387(1), Fla.Stat. (1977). This subsection providesfurther:

The annual funding of the redevelopment trust fundshall be in an amount not less than that increment inthe income, proceeds, revenues, and funds of thecounty or municipality derived from or held inconnection with its undertaking and carrying out of community redevelopment projects under this part.Such increment shall be determined annually andshall be that amount equal to the difference be-tween:

(a) The amount of ad valorem taxes levied each yearby all taxing authorities except school districts ontaxable real property contained within the geo-

graphic boundaries of a community redevelopmentproject; and

(b) The amount of ad valorem taxes which wouldhave been produced by the rate upon which the taxis levied each year by or for all taxing authoritiesexcept school districts upon the total of the assessedvalue of the taxable property in the community re-



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development project as shown upon the (most re-cent) assessment roll used in connection with thetaxation of such property by each taxing authority(prior) to the effective date of the ordinance ap-

proving the community redevelopment plan.

When a redevelopment trust fund has been es-tablished, all taxing authorities in the redevelopmentarea except school districts must annually appropriatethe ad valorem tax increment to the trust fund. s163.387(2). The obligation to contribute annually tothe trust fund continues until the retirement of all debtincurred in connection with the project, but “only tothe extent that the tax increment described in thissection accrues.” s 163.387(3). That is, the obligationto appropriate to the fund arises only if the incrementin tax revenue is actually collected. s 163.387(4).

The act disclaims any right of bondholders toreceive the taxing authorities' contributions until theyare deposited in the redevelopment trust fund. “Theholders of such bonds or notes shall have no right torequire the imposition of any tax or the establishmentof any rate of taxation in order to obtain the amountsnecessary to pay and retire such bonds or notes.” Id.

Section 163.387 contains a final disclaimer:

Revenue bonds issued under the provisions of thispart shall not be deemed to constitute a debt, liabil-

ity, or obligation *882 of the local governing bodyor the state or any political subdivision thereof, or apledge of the faith and credit of the local governingbody or the state or any political subdivision there-of, but shall be payable solely from the revenuesprovided therefor. All such revenue bonds shallcontain on the face thereof a statement to the effectthat the agency shall not be obligated to pay thesame or the interest thereon except from the reve-nues of the community redevelopment agency heldfor that purpose and that neither the faith and creditnor the taxing power of the local governing body orof the state or of any political subdivision thereof is

pledged to the payment of the principal of, or theinterest on, such bonds.

Id. s 163.387(5).

The Miami Beach Redevelopment Agency'scomplaint sought validation of $80 million in bonds tofinance land acquisition and $300 million in bonds to

finance improvements. In the judgment of validation,the court stated its findings, which we summarize asfollows.

On February 19, 1975, the Miami Beach CityCommission adopted a resolution declaring that thesouth end of the city, as described in the resolution, isa “blighted area” within the meaning of the Commu-nity Redevelopment Act. The judgment of validationdeclares that this resolution, although adopted with aminimum of formality and evidence, is supported bythe presumption that the commissioners wereknowledgeable about conditions in their city. OnFebruary 17, 1976, the city commission created theMiami Beach Redevelopment Agency. On February 1,1977, the Dade County Commission delegated to thecity the redevelopment powers provided for by the

Community Redevelopment Act.

Meanwhile, the Miami Beach RedevelopmentAgency prepared a redevelopment plan for the projectarea in the south end of the city. In January, 1977, thecity planning board found the plan to conform to thecity's general plan. On March 2, 1977, the city com-mission approved and adopted the redevelopmentplan.

On July 1, 1977, chapter 77-391, Laws of Florida,amending the act to provide for tax increment fi-nancing, went into effect. On September 7, 1977, the

city commission established a redevelopment trustfund and appropriated thereto the tax increment rev-enues to be realized from the redevelopment project.

In January, 1978, the county commission ap-proved the redevelopment plan. On April 4, 1978, thecounty commission by resolution joined in the city'screation of the redevelopment trust fund and appro-priated to it the tax increment revenues it would real-ize from the project. On April 25, 1979, the citycommission, after hearings, adopted resolution79-15887, which reaffirmed the finding of blight inthe area, the finding of necessity for redevelopment,

and the creation of the redevelopment agency.

In the validation decree, the trial court recited atlength the evidence which it found supported resolu-tion 79-15887. The project area consists of some 235acres. Of 420 structures in the area, 205 are “defective,substandard or obsolete requiring clearance to achievesound planning objectives.” Most of the buildings are



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over forty years old. A substantial number of them donot conform to the municipal building code. Most of the project area does not conform to “current floodcontrol criteria.” The streets suffer from deterioration

and subsidence. The storm and sanitary sewers areantiquated and unhealthy. Street lights are in a dete-riorated condition. The water system fails to meet flowrequirements for fire protection.

The court found further that there is “substantial”nonconformity of land uses to city building and zon-ing codes, including lot size, density, parking, andsetback requirements. The 1323 separate parcels of land have 1200 separate owners, resulting in a 90 percent rate of diversity of ownership.

The fire and rescue service requirements per

capita in the area are approximately twice those of theremainder of the city. With 4.3 per cent of the landarea and 6.2 per cent of the population, the area *883 accounts for 12 per cent of the felonies committed inthe city. Forty-seven per cent of the people in the areahave incomes below “the poverty level.” In 1978, thearea accounted for $880,000 in municipal ad valorem,resort, franchise, and utility taxes (total city revenue)but accounted for $3,950,000 in city expenditures forpublic services.

The court concluded that the area is a place of “sub-human living conditions” with nearly half the

people “in abject poverty” surviving on a diet of catfood. These people are a drain on the city's capacity toprovide social services. They pay exorbitant rents forthe “hovels” in which they live. They are plagued byviolent crime and fear to walk the streets at night.

In 1971, the court found, the city adopted newzoning and housing codes. Enforcement of the newregulations failed to stem the tide of blight. A mora-torium on construction, promulgated in 1973, has notbeen challenged. From this the court concluded thatprivate investors are not interested in the area becauseof current conditions.

The redevelopment plan includes provision forrelocation of some of the people who will be turnedout because of demolition proposals. The court found:

The plan, by phased relocation and construction of new housing, makes adequate provision for the re-location of those who are displaced from their pre-

sent places of residence in the South Shore area. TheAgency, joined by the City of Miami Beach andDade County, have made an irrevocable commit-ment to the residents of South Shore who will be

relocated in the redevelopment of the area, thatevery humanitarian effort which is necessary will bemade to assure minimal emotional trauma to thosewho are to be relocated. Additionally, the Agencyand the two levels of government involved haveguaranteed the availability of subsidized housing forall eligible displacees, and permanent subsidies forthose who are over 65 years of age at the time of relocation.

The Court further finds that the relocation of olderresidents in the area who subsist on fixed incomeswhich are at or below poverty level into decent,

affordable, subsidized accommodations, togetherwith the proper handling of these fragile peopleduring the transition period will inure to their ben-efit and allow them the opportunity to achieve aquality of life and dignity which they could not hopeto achieve in their present accelerating demoralizingconditions.

The court found that the proposed bonds were tobe issued to finance projects in furtherance of a publicpurpose. The court found further that the bonds to beissued were not in violation of article VII, section 10,Florida Constitution.

Nowhere in the final judgment, or anywhere inthe record before us, is it indicated that the proposedbond issues have been approved by referendum. Thetrial court found that the proposed bonds are notpayable from ad valorem taxation and therefore arenot subject to the referendum requirement of articleVII, section 12, Florida Constitution.

The State Attorney of the Eleventh Judicial Cir-cuit, on behalf of the appellant the State of Florida,argues five issues in her brief. She contends that theMiami Beach Redevelopment Agency has no author-

ity to bring an action for validation of bonds; that theagency is not a legally constituted entity; that the citycommission was without authority to exercise theredevelopment powers provided for by the act; that theredevelopment project involves the use of eminentdomain for purposes not public, in violation of articleX, section 6, Florida Constitution; and that the bondsto be issued will be payable from ad valorem tax



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revenues but have not been approved by referendumas required by article VII, section 12, Florida Consti-tution.

I. [1] The state attorney argues that the Miami

Beach Redevelopment Agency is not one of the kindsof entities authorized under chapter 75, Florida Stat-utes (1979) to institute an action for the validation of *884 bonds. Section 75.02 provides for the filing of acomplaint to determine authority to incur bonded debtby “any county, municipality, taxing district or otherpolitical district or subdivision of this state....” Wehave held that this language encompasses all entitieswith authority to issue bonds and that all such entitiesare therefore intended to be authorized to bring acomplaint for validation. Nohrr v. Brevard County

Educational Facilities District, 247 So.2d 304(Fla.1971); State v. Inter-American Center Authority,84 So.2d 9 (Fla.1955). Chapter 163 clearly authorizesthe establishment of redevelopment agencies as po-litical bodies authorized to issue bonds. Therefore, thiscontention is without merit.

II. [2] The state attorney contends that the Miami

Beach Redevelopment Agency is not a legally con-stituted entity. She points out that in the case of achartered county, under section 163.410, the rede-velopment powers provided for by the act are vested in

the county. The county may delegate the authority to amunicipality with respect to redevelopment projectsundertaken within the municipality's boundaries. Thecity created the agency on February 17, 1976 afterfinding the existence of blight on February 19, 1975.The county did not delegate redevelopment powers tothe city until February 1, 1977. The state attorneyasserts that under section 163.360, a local governmentcannot take any action in the redevelopment field untilit has found and declared the existence of blight.Therefore, she argues, the city had no authority tocreate a redevelopment agency until April 25, 1979,when, after having had redevelopment authority del-egated to it by the county, it adopted a resolutionfinding the existence of blight.

The agency responds that when the county dele-gated redevelopment powers to the city in February,1977, it expressly referred to and recognized the city'screation of the agency in February, 1976. Anything thecity did without authority was thus ratified by the

county. On April 25, 1979, the city reaffirmed itsearlier finding of blight and its creation of the rede-velopment agency. When the county subsequentlyapproved the bond resolutions adopted by the agency

in connection with the project, it made clear its rati-fication of the actions taken by the city. We agree withthe agency on this point. Clearly the local officialsallowed the steps in the process to get somewhat out of order. Nonetheless, this fact alone does not present animpediment to our approval of the validation decree inthis case.

III. [3] The state attorney posits another failure to

follow the process provided for by the statute. Shepoints out that the city commission never passed anordinance or resolution approving the issuance of

bonds by the agency. Section 163.385(3) provides thatthe “governing body” meaning in this instance the citycommission must authorize the issuance of redevel-opment bonds. The agency responds that when thecounty delegated redevelopment powers to the citypursuant to section 163.410, it reserved, as it may, theauthority to give final approval to any bond issue. Thecounty commission did approve the instant bond is-sues by resolution. For purposes of the section163.385(3) requirement of approval of bonds by the“governing body,” the agency argues, the county wasthat body. Furthermore, when the city adopted andapproved the final redevelopment plan, its action

constituted an approval of the bonds, if one was nec-essary, sufficient to satisfy the requirement of section163.385(3). We agree with the agency and hold thatthe bond issues have received the approval of the“governing body.”

IV. The fourth issue in this case actually has two

components, and we will treat them separately. Thefirst is whether chapter 163, Florida Statutes (1977),violates the requirements of article VII, section 10 andarticle X, section 6, Florida Constitution, that publicbonded financing and the power of eminent domainmust serve a public purpose.*885 The second iswhether the determination of public purpose in thiscase is supported by competent, substantial evidence.

A. The state attorney argues that the use of bond

proceeds to acquire the land for the project by eminentdomain is prohibited by article X, section 6, Florida



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Constitution, because the project does not serve apublic purpose. This contention necessarily calls intoquestion the constitutionality of chapter 163, whichauthorizes projects such as this one and declares that

they serve such a public purpose. The state attorneymight well have expanded her argument, because if the statute violates article X, section 6 by authorizingeminent domain without the justification of a publicpurpose, such lack of public purpose also renders thesale of any bonds and the expenditure of any publicfunds on the project a violation of article VII, section10, Florida Constitution, provided the project is notamong those excepted from that section.[FN2] SeeState v. Town of North Miami, 59 So.2d 779(Fla.1952).

FN2. Certain kinds of projects are specifi-

cally allowed in article VII, section 10, whichwould have been held to violate that provi-sion under case law antedating various con-stitutional revisions or amendments. See, e.g., State v. Putnam County Dev. Auth., 249So.2d 6 (Fla.1971). However, a project to befinanced by bonds payable from taxation,undertaken by the state or a political subdi-vision, and serving a purely private purpose,would be impermissible under the due pro-cess clause of the Fourteenth Amendment tothe United States Constitution, even if spe-cifically allowed by the Florida Constitution.

See, e. g., Green v. Frazier, 253 U.S. 233, 40S.Ct. 499, 64 L.Ed. 878 (1920); City of Clearwater v. State ex rel. United Mut. LifeIns. Co., 108 Fla. 623, 147 So. 459 (1933).

[4] Article X, section 6 provides in part:

(a) No private property shall be taken except for apublic purpose and with full compensation thereforpaid to each owner or secured by deposit in theregistry of the court and available to the owner.

Article VII, section 10 provides in part:

Neither the state nor any county, school district,municipality, special district, or agency of any of them, shall become a joint owner with, or stock-holder of, or give, lend or use its taxing power orcredit to aid any corporation, association, partner-ship or person; but this shall not prohibit laws au-thorizing:

(a) the investment of public trust funds;

(b) the investment of other public funds in obli-gations of, or insured by, the United States or any of its instrumentalities;

The remaining exceptions pertain to public capi-tal projects, industrial development projects, andelectrical utilities projects. Art. VII, s 10(c), (d),Fla.Const. The purpose of article VII, section 10 is to“protect public funds and resources from being exploited in assisting or promoting private ven-

tures when the public would be at most only inci-

dentally benefited.” Bannon v.

Port of Palm Beach District, 246 So. 2d 737, 741 (

Fla. 1971).

[5] The standard for determining the question of “public purpose” is the same under article VII, section10 and article X, section 6. If a project serves a publicpurpose sufficient to allow the expenditure of publicfunds and the sale of bonds under article VII, section10, then the use of eminent domain in furtherance of the project is also proper. See State v. Town of NorthMiami, 59 So.2d 779, 785 (Fla.1952).

State v. Town of North Miami was decided underarticle IX, section 10 of the Constitution of 1885, one

of the predecessor provisions of article VII, section 10.Decisions construing predecessor provisions of theconstitution having the same import as current provi-sions are sources of authority for the construction of the successor provisions. Weber v. Smathers, 338So.2d 819 (Fla.1976); In re Advisory Opinion to theGovernor, 112 So.2d 843 (Fla.1959).

[6] We note that this challenge to the legality of the project to be financed by the proposed bonds isproper in these proceedings because “validation pro-ceedings involve a determination not only of the au-thority*886 of an agency to issue bonds or revenue

certificates, but also whether the agency may lawfullyexpend the proceeds for the contemplated purpose.”State v. Suwannee County Development Authority,122 So.2d 190, 193 (Fla.1960).

Under article VII, section 10, neither the state norany of its subdivisions may expend public funds for orparticipate at all in a project that is not of some sub-



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stantial benefit to the public, even where there is noproposed exercise of the eminent domain power andno public indebtedness, subject to the exceptions setout therein. See, e. g., State v. Housing Finance Au-

thority, 376 So.2d 1158 (Fla.1979); State v. PutnamCounty Development Authority, 249 So.2d 6(Fla.1971).

[7] The legislature has determined that projectsusing eminent domain to clear blighted areas andproviding for the ultimate disposition of substantialportions of the acquired properties for use by privateconcerns in profit-making activities serve a publicpurpose. This determination, while not conclusive, ispresumed valid and should be upheld unless it is ar-bitrary or unfounded unless it is so clearly erroneousas to be beyond the power of the legislature. E. g.,

State v. Housing Finance Authority, 376 So.2d 1158(Fla.1979); Nohrr v. Brevard County EducationalFacilities Authority, 247 So.2d 304 (Fla.1971); Statev. Reedy Creek Improvement District, 216 So.2d 202(Fla.1968); State v. Daytona Beach Racing and Rec-reational Facilities District, 89 So.2d 34 (Fla.1956).

[8] This Court has declared many times that apublic body may not use its governmental authorityand its public funds to acquire lands whether by pur-chase or eminent domain where the only purpose of the acquisition is to make the properties available forprivate uses. E. g., Baycol, Inc. v. Downtown Devel-

opment Authority, 315 So.2d 451 (Fla.1975); City of West Palm Beach v. Williams, 291 So.2d 572(Fla.1974); Grubstein v. Urban Renewal Agency, 115So.2d 745 (Fla.1959); City of West Palm Beach v.State, 113 So.2d 374 (Fla.1959); State ex rel. Ervin v.Cotney, 104 So.2d 346 (Fla.1958); Panama City v.State, 93 So.2d 608 (Fla.1957); Adams v. HousingAuthority, 60 So.2d 663 (Fla.1952); State v. Town of North Miami, 59 So.2d 779 (Fla.1952). In applyingthis rule, a long-standing corollary must be kept inmind:

The mere fact that some one engaged in private

business for private gain will be benefited by everypublic improvement undertaken by the governmentor a governmental agency, should not and does notdeprive such improvement of its public character ordetract from the fact that it primarily serves a publicpurpose. An incidental use or benefit which may beof some private benefit is not the proper test in de-termining whether or not the project is for a public

purpose.

State v. Board of Control, 66 So.2d 209, 210-11(Fla.1953).

In State v. Town of North Miami, 59 So.2d 779(Fla.1952), a local government sought to issue bondsto finance an industrial plant. The Court held theproposed bonds invalid under article IX, section 10 of the 1885 Constitution, which prohibited local gov-ernment aid or lending of credit to any private concernand which unlike our present article VII, section 10,provided no exception for industrial plants. Concedingthe benefit of any new business to a community, theCourt found that the private use and benefit wereparamount and the public benefit only incidental.After distinguishing cases dealing with government

office buildings, airports, and recreation projects, theCourt said:

In none of the cases decided by this Court since theadoption of our present Constitution have we ap-proved any special legislative acts which authorizedany of the political subdivisions or governmentalunits of the State to acquire property and erectbuildings thereon for the exclusive use of a privatecorporation for private gain and profit.

Our organic law prohibits the expenditure of public money for a private purpose. It does not

matter whether the *887 money is derived by advalorem taxes, by gift, or otherwise. It is publicmoney and under our organic law public moneycannot be appropriated for a private purpose or usedfor the purpose of acquiring property for the benefitof a private concern. It does not matter that (sic )such undertakings may be called or how worthwhilethey may appear to be at the passing moment. Thefinancing of private enterprises by means of publicfunds is entirely foreign to a proper concept of ourconstitutional system. Experience has shown thatsuch encroachments will lead inevitably to the ul-timate destruction of the private enterprise system.

Id. at 784-85.

In the later case of Panama City v. State, 93 So.2d608, 610 (Fla.1957), the city, pursuant to authority inits charter, proposed to issue bonds and use eminentdomain for a waterfront development project. Theproject was on two sites and consisted of a city hall,



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civic auditorium, other public buildings, two largemarinas, and some “concession” buildings. The planwas to allow a number of private shops to operate inthe concession buildings. The record showed that

rentals from private uses would account for 20 percent of the yearly project revenue, but that the shopswould occupy only 1.22 per cent of the total area of the project.

There was no question, the Court said, as to thepublic purpose of the city buildings, and marinas. TheCourt then approved the project because the evidenceshowed the remaining facilities to be “a necessaryadjunct to the successful operation of the main enter-prise, namely the marina.” Id. at 614. The private useswere not so substantial as to destroy the public natureof the project. So, article IX, section 10, Constitution

of 1885, was not violated. See also Gate City Garage,Inc. v. City of Jacksonville, 66 So.2d 653 (Fla.1953).

In City of West Palm Beach v. State, 113 So.2d374 (Fla.1959), on the other hand, the Court examineda civic center and marina to be financed through thesale of bonds and found that the private use and ben-efit dominated the project. The project contemplatednot only private servicing shops for the facility, butalso lease of the civic center itself for operation by aprivate concern. In State v. Daytona Beach Racing &Recreational Facilities District, 89 So.2d 34(Fla.1956), however, the Court upheld a finding of

public purpose in the construction of a racetrack andstadium that were to be placed in private hands asubstantial part of each year. Because of the enter-tainment value and the promotion of tourism, andbecause of provision for substantial public recrea-tional use, the Court concluded, “(t)he public purposehere seems to be predominant and the private benefitand gain to be incidental.” Id. at 37.

In City of West Palm Beach v. Williams, 291So.2d 572 (Fla.1974), there was a challenge to thevalidity of leases of city-owned property to privatepersons to operate for profit. The city owned a facility

consisting of a marina, gasoline station, restaurant,and parking lot. The city was operating the marina andthe metered parking lot. The restaurant and servicestation were being leased to private persons and op-erated for profit. The challengers contended that theseleases of public property for private gainful operationwere unlawful. The Court noted that there was noproposal to spend public funds, sell bonds, or use

eminent domain. Legislation had authorized munici-palities to lease out properties determined not to becurrently needed for public use. The Court upheld thevalidity of this authority. The question of how the city

came to acquire such properties as a restaurant and agas station was not raised.

In Baycol, Inc. v. Downtown Development Au-thority, 315 So.2d 451 (Fla.1975), the local downtowndevelopment authority planned to issue bonds to fi-nance construction of a parking garage and shoppingmall as one project. The bond resolution stated thepurpose as improvement of traffic and parking facili-ties. After the validation of the bonds, the authoritybrought eminent domain proceedings. The landownerschallenged the taking on the ground that there was nopublic purpose. After deciding that, *888 because of

inadequacy of the notice of the details of the plan atthe time of validation, the landowners could raise thischallenge in eminent domain proceedings, the Courtheld that the private uses were more than incidentaland deprived the project of a public purpose. TheCourt concluded from the record that without theprivate commercial activities, there was no demon-strated need for the parking garage. Parking was thepurported public use underlying the project. Butparking was incidental to the predominant private useof the retail shops. The tail was wagging the dog.

In the above-discussed case of State v. Town of

North Miami, 59 So.2d 779 (Fla.1952), the Courtdelivered a strict statement on the relation betweenprivate use and public purpose. That statement con-trasts with Panama City v. State, 93 So.2d 608(Fla.1957), where the Court said, “(t)he developmentof the law in this State on this question and particu-larly a study of the legislative history with relation topublic projects of a recreational and entertainmentnature reveals the allowance to the public bodies of anextremely wide latitude in this field.” Id. at 613. Statev. Town of North Miami dealt with public construc-tion of a manufacturing plant which at that time wasclearly impermissible. The Court there said:

There is no similarity between this case and thosewhere the Legislature authorizes a municipality toestablish a sewage system, a water system, an elec-tric light plant, or to furnish some other public util-ity or service essential to the welfare of all the peo-ple of a municipality; or for the exercise of the po-lice power for slum clearance, or for the removal of



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blighted areas, or some such other undertaking forthe protection and conservation of the public health,or to eliminate crime-breeding places or to conservethe morals, or protect the lives and limbs of the

people.

This is simply a case where the municipality isattempting to use the power of the municipality topurchase land and erect industrial or manufacturingplants thereon for the use of a private corporationfor private profit and private gain.

59 So.2d at 787.

It was recognized very early then that slumclearance and public housing, when declared to be soby the legislature, were public purposes. Since the

public purpose put forth in the instant case is the re-development of a blighted area, we should give con-sideration to cases where the purposes of slum clear-ance and housing were in issue.

In Marvin v. Housing Authority, 133 Fla. 590,599, 183 So. 145, 149 (1938), the Court had before itthe “entirely new question” whether slum clearanceand public construction of housing for persons of lowincome were projects with a public purpose. The leg-islature had authorized both the sale of bonds and theuse of eminent domain in connection with such projects. The Court held that there was no basis for re-

jecting the nearly conclusive legislative determinationthat a public purpose would be served.

In the subsequent case of Adams v. HousingAuthority, 60 So.2d 663 (Fla.1952), the project in-volved “clearing a blighted area by acquiring bypurchase or eminent domain real estate in the blightedresidential area and (making) it available for sale orlease to private enterprises.” Id. at 664 (emphasis inoriginal). The plan did not provide for the return of theacquired area to use for residential housing. Theopinion discussed earlier cases, such as Marvin, wherethe Court had upheld projects under statutes providing

for slum clearance and the construction of low-incomehousing on the cleared sites. Here, in contrast, thelocal authority planned to convey the sites for devel-opment and operation by private concerns. The Courtfound this deviation from precedent fatal:

The question in this case is not simply theabatement or discontinuance of a nuisance or a

blighted area. This is not simply a case of slumclearance in order to promote the public health,safety, morals and general welfare of the inhabitantsand citizens of Daytona Beach. On its face it is a

“redevelopment” plan and a mere inspection of theplan shows it to be *889 a real estate promotion. Thevery words of the plan declare it to be for the pur-pose of acquiring title to and ownership of severalblocks of property constituting six and one-half acres now used for residences to be redeveloped andsold or leased to private individuals, associations orcorporations for private commercial and industrialpurposes. As will be shown hereafter, it is not thepurpose of the plan to acquire this land to erect newresidences to be rented to persons in the low incomebrackets.

Id. at 666-67 (emphasis in original). The Courtheld the plan violated article IX, section 10 and therestrictions on eminent domain, Constitution of 1885.

In Grubstein v. Urban Renewal Agency, 115So.2d 745 (Fla.1959), on the other hand, the projectprovided for by special law there involved clearanceand redevelopment, with the ultimate return of most of the land to residential use. While some private com-mercial uses were to be permitted in the acquired areaafter redevelopment, these were found to be merelyincidental they were necessary amenities. The publicpurpose underlying slum clearance and public hous-

ing, the Court said, had long been established. Theattack here being on the degree of private involvementwhich had been overwhelming in Adams the Courtupheld the plan.

The state attorney argues that Adams v. HousingAuthority, stands for the proposition that, while “slumclearance” has a public purpose, to establish the ne-cessity for it there must be shown that conditions havedeteriorated to the point where they constitute a directdanger to the public health, morals and welfare. Ageneral purpose to make a “blighted area” moremodern, more efficient, or more aesthetically pleasing

is not enough. Therefore, she argues, to the extent thatchapter 163 provides for clearance and redevelopmentfor the latter purposes, it is unconstitutional. It followsfrom her argument that in order to uphold chapter 163,we would have to hold that it may only be applied toareas where conditions are so unwholesome as to be adirect threat to public order. The act as so restrictivelyconstrued, she argues, cannot be applied to the pro-



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posed project on the record we have here.

The Adams case held that a public purpose therewas lacking because of the private development that

was to take place on land taken by eminent domain,not because there was no “slum” to be cleared. We donot believe there is a constitutional rule, based on thedegree of deterioration or dilapidation of an area, thatseparates those situations where public intervention ispermissible from those where it is not.

In Berman v. Parker, 348 U.S. 26, 75 S.Ct. 98, 99L.Ed. 27 (1954), the United States Supreme Court hadfor consideration an Act of Congress providing for theuse of the eminent domain power in the redevelop-ment of blighted areas of the District of Columbia thatwere injurious to the public interest. The statute and

the plan contemplated a comprehensive redevelop-ment with ultimate disposition to uses both public andprivate. The appellants were owners of a parcel onwhich was situated a department store. They arguedthat since their property was in commercial use andwas not “slum” housing, and since the plan proposedultimate disposition of the parcel to private use, thecondemnation would violate the Fifth Amendmentprohibitions against the deprivation of propertywithout due process and the taking of property for anonpublic purpose. The Court characterized one focalpoint of the argument: “To take for the purpose of ridding the area of slums is one thing; it is quite an-

other, the argument goes, to take a man's propertymerely to develop a better balanced, more attractivecommunity.” Id. at 31, 75 S.Ct. at 101. The Court'sresponse to the argument included the followingcomments:

Public safety, public health, morality, peace andquiet, law and order these are some of the moreconspicuous examples of the traditional applicationof the police power to municipal affairs. Yet theymerely illustrate the scope of the power and do notdelimit it. See *890Noble State Bank v. Haskell,219 U.S. 104, 111, 31 S.Ct. 186, 188, 55 L.Ed. 112.

Miserable and disreputable housing conditions maydo more than spread disease and crime and immo-rality. They may also suffocate the spirit by reduc-ing the people who live there to the status of cattle.They may indeed make living an almost insuffera-ble burden. They may also be an ugly sore, a blighton the community which robs it of charm, whichmakes it a place from which men turn. The misery

of housing may despoil a community as an opensewer may ruin a river.

We do not sit to determine whether a particular

housing project is or is not desirable. The concept of the public welfare is broad and inclusive. SeeDay-Brite Lighting, Inc. v. State of Missouri, 342U.S. 421, 424, 72 S.Ct. 405, 407, 96 L.Ed. 469. Thevalues it represents are spiritual as well as physical,aesthetic as well as monetary. It is within the powerof the legislature to determine that the communityshould be beautiful as well as healthy, spacious aswell as clean, well-balanced as well as carefullypatrolled. In the present case, the Congress and itsauthorized agencies have made determinations thattake into account a wide variety of values. It is notfor us to reappraise them. If those who govern the

District of Columbia decide that the Nation's Capitalshould be beautiful as well as sanitary, there isnothing in the Fifth Amendment that stands in theway.

Once the object is within the authority of Con-gress, the right to realize it through the exercise of eminent domain is clear. For the power of eminentdomain is merely the means to the end. See Luxtonv. North River Bridge Co., 153 U.S. 525, 529-530,14 S.Ct. 891, 892, 38 L.Ed. 808; United States v.Gettysburg Electric R. Co., 160 U.S. 668, 679, 16S.Ct. 427, 429, 40 L.Ed. 576. Once the object is

within the authority of Congress, the means bywhich it will be attained is also for Congress to de-termine. Here one of the means chosen is the use of private enterprise for redevelopment of the area.Appellants argue that this makes the project a takingfrom one businessman for the benefit of anotherbusinessman. But the means of executing the project are for Congress and Congress alone to deter-mine, once the public purpose has been established.See Luxton v. North River Bridge Co., supra; cf.Highland v. Russell Car Co., 279 U.S. 253, 49 S.Ct.314, 73 L.Ed. 688. The public end may be as well orbetter served through an agency of private enter-prise than through a department of government or sothe Congress might conclude. We cannot say thatpublic ownership is the sole method of promotingthe public purposes of community redevelopmentprojects. What we have said also disposes of anycontention concerning the fact that certain propertyowners in the area may be permitted to repurchasetheir properties for redevelopment in harmony with



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the overall plan. That, too, is a legitimate meanswhich Congress and its agencies may adopt, if theychoose.

In the present case, Congress and its authorizedagencies attack the problem of the blighted parts of the community on an area rather than on a struc-ture-by-structure basis. That, too, is opposed byappellants. They maintain that since their buildingdoes not imperil health or safety nor contribute tothe making of a slum or a blighted area, it cannot beswept into a redevelopment plan by the mere dictumof the Planning Commission or the Commissioners.The particular uses to be made of the land in theproject were determined with regard to the needs of the particular community. The experts concludedthat if the community were to be healthy, if it were

not to revert again to a blighted or slum area, asthough possessed of a congenital disease, the areamust be planned as a whole. It was not enough, theybelieved, to remove existing buildings that wereinsanitary or unsightly. It was important to redesignthe whole area so as to eliminate the conditions thatcause slums the overcrowding of dwellings, the lack of parks, the lack of adequate streets and alleys, theabsence of recreational*891 areas, the lack of lightand air, the presence of outmoded street patterns. Itwas believed that the piecemeal approach, the re-moval of individual structures that were offensive,would be only a palliative. The entire area needed

redesigning so that a balanced, integrated plan couldbe developed for the region, including not only newhomes but also schools, churches, parks, streets, andshopping centers. In this way it was hoped that thecycle of decay of the area could be controlled andthe birth of future slums prevented. Cf. Gohld Re-alty Co. v. City of Hartford, 141 Conn. 135,141-144, 104 A.2d 365, 368-370; Hunter v. Norfolk Redevelopment Authority, 195 Va. 326, 338-339,78 S.E.2d 893, 900-901.

Id. 348 U.S. at 32-36, 75 S.Ct. at 102-104. Wefind this reasoning to be persuasive both on the ques-tion of whether redevelopment of merely “blighted”areas serves a public purpose and the question of whether the public purpose is destroyed merely be-cause there will be private commercial uses in theredeveloped area.

The application of chapter 163 to slum clearanceand redevelopment was at issue in City of Jacksonville

v. Griffin, 346 So.2d 988 (Fla.1977). Landownersquestioned the necessity for the taking of their prop-erty. The Court disapproved the district court of ap-peal decision, which had erroneously discarded the

trial court's findings in reference to the questions of public purpose and necessity. In the course of doing sothe Court implicitly held that the use of eminent do-main for slum clearance is constitutional even wherethe predominant land use of the area will ultimately beprivate.

[9] We hold that chapter 163, Florida Statutes(1977), authorizing redevelopment projects involvingexpenditure of public funds, sale of public bonds, theuse of eminent domain for acquisition and clearance,and substantial private and commercial uses afterredevelopment, is in furtherance of a public purpose

and is constitutional. The wisdom of authorizing thecataclysmic demolition and redesign of neighbor-hoods or even whole districts is not for the Court todetermine.

B. [10] The second component of the state attorney's

argument, in which she is vehemently joined by theintervening appellant, is that the evidence in the courtbelow was insufficient to establish the existence of conditions justifying the exercise of redevelopmentpowers under chapter 163. As has already beenpointed out, chapter 163 prescribes a range of policy

responses to the problems of slums and blight. Theserange from conservation and rehabilitation programsto area-wide acquisition and clearance. Between thesetwo points lie the intermediate policies, which mayinvolve any of a multitude of mixed programs. Theuse of eminent domain for acquisition and demolitionof specific structures, along with other kinds of landuse controls, involves a lower degree of governmentintrusion into the private real property market thandoes acquisition and clearance of a large area. Theappellants argue that in order for the redevelopmentplan to serve a public purpose, it must be shown thatconditions are such that the particular degree of ac-quisition and clearance is necessary to accomplish thepurposes of the act.

Quoting from the redevelopment plan, the stateattorney asserts that the statement of its “objective”reveals its purpose:

The central objective of this Plan is to renew and



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create economic stimulation within this area to cre-ate an environment which will establish this area asthe focal point of the community, to create a func-tioning balance of commercial (retail and office)

and public space as well as to provide limited resi-dential uses which will re-establish the aesthetic,economic and social viability of the project area.

The purposes of the act, she argues, are theelimination of slums and blight and such redesign andredevelopment of the area as are necessary to preventtheir return, and not redesign of an area in order topromote new, different land uses that are perceived byofficials as desirable.

*892 The statute defines “blighted area” as:

an area in which there are a substantial number of slum, deteriorated, or deteriorating structures andconditions which endanger life or property by fire orother causes or one or more of the following factorswhich substantially impairs or arrests the soundgrowth of a county or municipality and is a menaceto the public health, safety, morals, or welfare in itspresent condition and use:

(a) Predominance of defective or inadequatestreet layout;

(b) Faulty lot layout in relation to size, adequacy,accessibility or usefulness;

(c) Unsanitary or unsafe conditions;

(d) Deterioration of site or other improvements;

(e) Tax or special assessment delinquency ex-ceeding the fair value of the land; and

(f) Diversity of ownership or defective or unusualconditions of title which prevents the free aliena-bility of land within the deteriorated or hazardous

area.

s 163.340(8), Fla.Stat. (1977).

The state attorney declares that the record showsthat the redevelopment plan proposes the demolitionof all of the 420 buildings in the area except for eightto twelve existing buildings deemed to be compatible

with the project. The improvements to be made in-clude new streets and utilities, a system of canals, andthe construction of luxury apartment buildings, hotels,stores, and parks. The state attorney makes reference

to a survey, which the Agency concedes “forms thebasis upon which the final plans for redevelopmenthave evolved,” that concluded that much of the areacould be conserved. The survey report called for muchless acquisition and demolition than the plan proposes.Another study, part of the record below, concludedthat the vast majority of the structures in the area aresound.

The City of Miami Beach, appellant states,adopted its first zoning ordinance in 1930. In 1971, itadopted a new zoning ordinance. Under the new or-dinance, all the existing buildings in the area were

rendered nonconforming. The final judgment's reli-ance on the nonconformity in upholding the finding of blight, it might be suggested, recognizes the retroac-tive creation of blight by local ordinance.

The state attorney argues that evidence that pri-vate investment in the area is not feasible without theredevelopment plan has also been created by localgovernment. In September, 1973, the City imposed amoratorium against the issuance of building permitsfor the area. This ban on construction and improve-ments was to last six months. Appellants state that ithas been in effect continuously since its initial adop-

tion. Appellee disputes this, but neither party's ap-pendix shows clearly what the facts are with regard tothis moratorium. The trial court found that the mora-torium in no wise prevented rehabilitative steps bylandowners, and that the evidence was all to the effectthat property owners simply had no interest in ex-pending their funds in this area.

The state attorney asserts that over half the realproperty in the area is publicly owned, much of itbeing the property of the city and composed of streetsand parks. She argues that the deteriorated conditionof these facilities can be remedied without the

large-scale use of eminent domain, and therefore thedrastic actions proposed by the plan are unnecessary.

The area has about 7000 residents, most of themelderly and of low income. Some of them own housesor condominiums. Most, however, rent apartments orrooms. The Agency estimates that the plan will uproot4200 households and 450 businesses. The redevel-



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392 So.2d 875 (Cite as: 392 So.2d 875)


opment plan provides for the construction of one lowincome housing project with 450 units. Most displacedfamilies and individuals, therefore, will have to berelocated out of the area.

Appellants assert that there was no showingwhatsoever of a relationship between conditions in thearea and disease. They also declare that there was noevidence that the buildings in the area constitute firehazards. The Agency refers us in the record to theminutes of a city commission *893 meeting where itwas reported that the area, with 6.2 per cent of thecity's area and 4.6 per cent of its population, had 11.7per cent of the fire calls and 12.98 per cent of all“rescue incidents.” The appendices before us do notshow the source of this information, nor whether theincidence of fire and accidents were at all related to

the conditions of the buildings (as opposed to thecharacteristics of the inhabitants).

The appellants argue that the trial court's findingof a relationship between conditions in the area andthe crime rate is erroneous. Appellants attribute someof the area's higher incidence of crime to the presenceof a public pier and beach recreation area, whichdraws all kinds of elements from outside the area. Thefact that most of the area's residents are elderly, andthus vulnerable to street crime, appellants assert, doesnot establish any relationship between conditions inthe area and crime.

The appellants also question the court's conclu-sion that the area has a faulty lot and street layout, asdetermined by the redevelopment plan. Appellantscontend there is no evidence to support this finding.

The court found that the redevelopment plan,providing as it does for the assisted relocation of theresidents, will contribute to the welfare of those peo-ple and better their lot in life. The appellants point out,however, that the betterment of the conditions underwhich the residents live does not appear to be the mainthrust of the redevelopment plan. Many of the factors

cited that pertain to the residents their poverty, theirrelatively high need for social services, etc. are at-tributable to age and disability and not to the physicalconditions of the area. The problems of age and disa-bility will follow the residents wherever they are re-located. For most of them, that will be outside the area.

When poor people are in the market for housing,

they tend, because of their relative lack of economicpower, to choose the relatively less desirable places tolive. Dwellings that are available at a low rental, un-less subsidized, tend to be in the less desirable

neighborhoods, that is, the blighted areas. In a societycommitted to equitable distribution of social servicesbased on need, such areas will always consume morein public services than they produce in ad valoremtaxes. Therefore, reliance on a deficit of servicesconsumed vis-a-vis taxes collected is not alone a jus-tification for condemnation of an area and dispersal of its residents. Incidentally, whatever benefit may ac-crue to the community at large from the redevelop-ment of the south end of the city, and to the new res-idents who will live there after redevelopment, theproject guarantees no direct relief to the displacedpoor. The trial court found, however, a benefit to the

displaced poor in the agency's relocation plan, whichpromises decent housing for all and permanent subsi-dies for some.

Plainly, the trial court resolved conflicts in theevidence in favor of the redevelopment plan. Thecourt's findings are adequately supported by compe-tent, substantial evidence, and must be affirmed.

V. The final contention urged on the Court is that the

proposed bonds are payable from ad valorem taxationwithin the meaning of article VII, section 12, and

therefore may not be issued without vote of the elec-torates of Dade County and the City of Miami Beach.

As previously explained above in the factualstatement of this opinion, section 163.387(2), FloridaStatutes (1977), provides that each local governmententity with taxing authority in the redevelopment area,except school districts, “shall annually appropriate” tothe redevelopment trust fund an amount not less thanthe amount of tax increment revenue that accrues tothe local government. Section 163.387(1) defines advalorem tax increment. It is the difference between theamount of ad valorem taxes levied by those local

governments each year and the amount that wouldhave been produced by the same levy on the assessedvalue of taxable property in the redevelopment areabefore the implementation of the plan. Thus the taxincrement revenues are *894 measured by the increasein proceeds brought about by the increased value of the property, to be achieved by the improvementsmade under the redevelopment plan.



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392 So.2d 875 (Cite as: 392 So.2d 875)


Under article VII, section 12 of the Florida Con-stitution, the power of “(c) ounties, school districts,municipalities, special districts and local governmen-

tal bodies with taxing powers” to borrow for capitalprojects, for terms in excess of twelve months, isconditioned, where the obligations are to be “payablefrom ad valorem taxation,” upon approval of the eli-gible voters by referendum. Appellants argue that theproposed bonds are “payable from ad valorem taxa-tion” because the required contributions of the countyand the city to the repayment fund will be derivedfrom their tax levies on the real property in the area.

[11] The Agency argues, on the other hand, thatproposed financing plan does not come within thereferendum requirement because: the statute and the

bond resolutions declare that there is no pledge of thecounty and city ad valorem taxing power; the statuteprovides that the bondholders' lien attaches only afterthe revenues are deposited in the trust fund; and the advalorem tax is not necessarily deposited directly intothe fund but is merely the measure of the contributionsthe county and city will make annually from its gen-eral operating revenues until the bonds have beenpaid. They are not required to be made from ad val-orem tax revenues at all, the appellee argues, but maybe derived from any available funds. The Agencycontends in effect that where there is no direct pledgeof ad valorem tax revenues, but merely a requirement

of an annual appropriation from any available funds,the referendum provision of article VII, section 12 isnot involved. We agree with this view, in explanationof which we turn to the precedents interpreting theconstitutional provision and its predecessor.

Much of the judicial treatment of the referendumrequirement is found in cases decided by this Courtunder article IX, section 6 of the Constitution of 1885,the predecessor provision. That section provided inpart that:

Countries, Districts, or Municipalities of the State of

Florida shall have power to issue bonds only afterthe same shall have been approved by a majority of the votes cast in an election in which a majority of the freeholders who are qualified electors residingin such Counties, Districts, or Municipalities shallparticipate, to be held in the manner to be prescribedby law....

This provision was adopted by the people in 1930.See S.J.Res. 26, Laws of Fla. (1929). “Its outstandingpurpose,” the Court said of the amendment early in itshistory,

was to lay a restraint only on the spendthrifttendencies of political subdivisions to load the fu-ture with obligations to pay for things the presentdesires, but cannot justly pay for as they go, therebynecessitating the involvement of the public credit insome form of funding or borrowing operation bywhich money can be realized on credit beyond thepresent means of payment so as to become availablefor disbursement in paying for considerations re-ceived in the present to be discharged out of publicrevenues anticipated to be realized or raised in thefuture.

Leon County v. State, 122 Fla. 505, 514, 165 So.666, 669 (1936).

[12] Two preliminary observations are in order.First, we observe that the recitals in the statute and inthe bond resolutions, to the effect that the bonds shallnot be deemed a pledge of the ad valorem taxingpower and therefore do not require a referendum, arenot conclusive of the issue in this proceeding. Thelegislative finding of constitutionality is presump-tively correct, but this Court must disapprove it if it isclearly erroneous. The Court looks at the substanceand not the form of the proposed bonds. See e. g., State

v. City of Key West, 153 Fla. 226, 14 So.2d 707(1943); Clover Leaf, Inc. v. City of Jacksonville, 145Fla. 341, 199 So. 923 (1941).

[13][14] However, once bonds are validated, andif appealed, the validation is *895 affirmed, then rec-itations of constitutionality and satisfaction of condi-tions precedent are binding on the issuing authority,which will not be heard to question such matters inactions brought for the enforcement of bondholders'rights. See Jefferson County v. Lewis, 20 Fla. 980(1884). Where bonds are unconstitutional and void abinitio, and the purchaser takes them with knowledge of

their potential invalidity, the recitals of constitution-ality will not be held binding on the issuer, Nuveen v.City of Quincy, 115 Fla. 510, 156 So. 153 (1934), butafter validation, the courts will protect even the pur-chasers of unconstitutional bonds. See ColumbiaCounty v. King, 13 Fla. 451 (1870); Patterson, LegalAspects of Florida Municipal Bond Financing, 6U.Fla.L.Rev. 287, 289 (1953) (hereinafter cited as





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while disapproving a mortgage the issuing authorityhad given as further security. To approve the mort-gage, the Court reasoned, would have been to approvea debt for payment of which the local authority could

be coerced into levying a tax.

In another series of cases, the Court designatedanother category of local government borrowing asoutside the meaning of the word “bonds” for purposesof the referendum requirement. It developed thatcounties could levy a legislatively authorized ad val-orem “building tax” for essential government build-ings, such as courthouses and jails, and pledge therevenues to the payment of obligations incurred tofinance the construction of such projects, withoutreferendum. This development is illustrated by thecontrast between Leon County v. State, 122 Fla. 505,

165 So. 666 (1936), and subsequent cases. There theCourt said:

Any contractual device for the present funding of tax revenues contemplated to be raised or madeavailable for reimbursement in future years, con-trived to be issued as an enforceable legal security tothe obligee, or his assignee, by means of which suchobligee or his assignee will acquire a legal or equi-table right to coerce by judicial processes the re-payment of a sum of money advanced on thestrength thereof, together with interest for the hire of the amount advanced, however calculated or pro-

vided to be paid upon the sum so involved, is incontemplation of amended section 6 of article 9 of the Constitution of Florida a “bond” and within thepurview of the specific prohibitions and limitationsof that section as to the issuance of “bonds.”

Id. at 507-508, 165 So. at 667. The Court ob-served that although the proceeds of the building taxcould not be pledged without the approval of thefreeholders, it would be permissible to allocate theproceeds of the tax to a building program each year asand when they were collected.

In Tapers v. Pichard, 124 Fla. 549, 169 So. 39(1936), the Court referred to the observation in LeonCounty v. State that the proceeds of the legislativelyauthorized building tax could be paid in installments,as and when collected, for the construction of abuilding essential to the conduct of county business.Tapers involved the very same project a jail for LeonCounty. Patterson, supra, at 307. The Court reasoned

that if the proceeds of the tax could be allocated ininstallments as and when collected, there was nothingin the constitution to prevent a county from issuingcertificates of payment to a contractor for construction

of a necessary building. The Court concluded thatarticle IX, section 6 was not intended to apply to“contracts for current governmental needs when ex-ecuted in due course of authorized budgetary re-quirements.” Tapers v. Pichard, 124 Fla. at 553, 169So. at 40. Thus the “certificates,” although they *897 were clearly issued to achieve a present funding of future anticipated ad valorem tax revenues, were heldto be outside the intent of the referendum requirement.This doctrine was made clear in Posey v. WakullaCounty, 148 Fla. 115, 3 So.2d 799 (1941), where theCourt, citing Tapers said: “(t)he construction of acounty courthouse is an essential governmental re-

quirement of the county and certificates of indebted-ness for that purpose payable from budgetary re-quirements in due course of law do not require anapproving vote of the freeholders.” Posey v. WakullaCounty, 148 Fla. at 119, 3 So.2d at 801. See generallyPatterson, supra, at 306-310.

This permissive view of the practice of allowingcounties to realize a present funding of anticipated advalorem tax revenues for the purpose of constructingcounty buildings became settled law. It was based onthe proposition that the 1930 amendment was “notintended to inhibit governmental entities from enter-

ing into contracts for current governmental needs andrequirements when done in due course of then au-thorized budgetary administration of public affairs.”E. g., State v. County of Palm Beach, 89 So.2d 607,609 (Fla.1956).

This Court very early held that article IX, section6 of the Constitution of 1885 did not require a refer-endum when bonds were proposed to be sold to fi-nance construction of a public works project thatwould be self-liquidating, that is, would generaterevenue sufficient to repay the bonds without anysupplemental allocations of tax revenues to that pur-pose. The Court later expanded this rule to allow thepledging of various sources of local government rev-enue other than ad valorem taxes.

For example, in State v. City of Winter Park, 160Fla. 330, 34 So.2d 740 (1948), the Court approved theissuance of bonds for sewer system improvements,payable from the sewer system revenues and from



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revenues of a municipal utilities service tax, withoutreferendum. Even though municipal resources otherthan the revenues of the system being financed werepledged, the obligation was still a limited one, so that

the Court could conclude that there was no generalobligation being created. Of special significance wasthe fact that there was created no power in bondhold-ers to compel exercise of the authority to levy ad val-orem taxes. In Schmeller v. City of Fort Lauderdale,38 So.2d 36 (Fla.1948), a statute authorized thebonded financing of recreational facilities and thepledge of the revenues to be created by them supple-mented by “any other available funds.” The citypledged the proceeds of its utilities service tax. Be-cause the pledge was of a limited and certain revenuesource the Court held there was no involvement of thetaxing power within the meaning of the constitution.

The Court again approved a pledge of municipal util-ities service tax revenues without referendum in Statev. City of Melbourne, 93 So.2d 371 (Fla.1957).

Other definite and limited sources of municipalrevenue have been held properly pledged to the re-tirement of bonds without referendum, such as fran-chise taxes paid by privately owned utilities, Miller v.City of St. Augustine, 97 So.2d 256 (Fla.1957); Statev. City of Miami, 76 So.2d 294 (Fla.1954), and theproceeds from state cigarette taxes collected in themunicipality. Welker v. State, 93 So.2d 591(Fla.1957); State v. City of Coral Gables, 72 So.2d 48

(Fla.1954). In Klein v. City of New Smyrna Beach,152 So.2d 466 (Fla.1963), the Court summed up therule and rationale of these cases:

As a general rule, we have said that if proposedcertificates are secured by a pledge of ad valoremtaxes, they are “bonds” and must be approved by thefreeholders as required by Section 6, Article IX of the Florida Constitution, F.S.A. but if they are se-cured by excise taxes, special assessments orcharges against the facility constructed with the netproceeds thereof, they are certificates that do nothave to be approved by the freeholders.

Id. at 467.

On the other hand, when a project is financed bythe sale of bonds to be repaid with revenues producedby the project supplemented by governmental fundsderived *898 from ad valorem taxation, an approvingvote of the electorate is required.

(I)n no instance has this Court upheld the pledge of gross revenue of a facility coupled with a supportingpledge of ad valorem taxes. When gross revenues

have been pledged with collateral support for oper-ating the facility, the supporting revenues pledgedhave always been derived from sources other thanad valorem levies.

State v. Halifax Hospital District, 159 So.2d 231,233 (Fla.1963). The mere possibility, however, thatthe pledge of some well defined, stable local gov-ernment source will have an incidental effect on theuse of revenues raised by ad valorem taxes “does notsubject the bonds or revenue certificates to the con-stitutional requirement.” Rianhard v. Port of PalmBeach District, 186 So.2d 503, 506 (Fla.1966).

[16] Against this background, the constitutionwas revised in 1968 to alter the language of the ref-erendum requirement for local bonds. That part of therevision which added the words “certificates of in-debtedness” and “any form of tax anticipation certif-icates” was found by the Court to have expresslyrejected the judicial distinction among categories of public obligations. State v. County of Dade, 234So.2d 651 (Fla.1970). More significantly here, therewas added to the provision the qualifying words“payable from ad valorem taxation.” Art. VII, s 12,Fla.Const. This limitation on the scope of the refer-

endum requirement seems to have been a ratificationof prior judicial interpretation, and the law has con-tinued to say that local revenue sources other than advalorem taxation may be pledged without referendum.See, e. g., State v. Orange County, 281 So.2d 310(Fla.1973); State v. City of Miami Beach, 234 So.2d103 (Fla.1970).

[17] The bonds in the instant case are payablefrom a trust fund, and the fund will receive revenuefrom two sources. One source is the money theAgency receives from sales, leases, and charges forthe use of, redeveloped property. This source is

analogous to revenues generated by a utility or facil-ity. The other source is the money to be contributedeach year by the county and city, measured by the taxincrement. The source of this revenue is not limited toany specific governmental revenue. That the statutoryduty to make the annual contributions would become acontractual duty, part of the obligation of the bonds,does not mean, however, that these bonds are payable



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from ad valorem taxation, in the constitutional senseof the term.

The Agency notes that even though the money the

county and city will use to make the contributions maycome from ad valorem tax revenues, we have indi-cated this does not bring the bonds within the refer-endum requirement. Tucker v. Underdown, 356 So.2d251 (Fla.1978). In that case, county bonds previouslyissued without referendum to finance a solid wastedisposal system had been validated as payable fromuser charges, giving bondholders no power to compelthe levy of ad valorem taxes for operating expenses ordebt service. The subsequent lawsuit concernedwhether the county had violated the covenants of theearlier bond issue by levying and spending ad valoremtaxes for these purposes. The Court held that it had

not.

[18] Tucker v. Underdown supports the argumentthat there is nothing in the constitution to prevent acounty or city from using ad valorem tax revenueswhere they are required to compute and set aside aprescribed amount, when available, for a discreetpurpose. The purpose of the constitutional limitation isunaffected by the legal commitment; the taxing powerof the governmental units is unimpaired. What iscritical to the constitutionality of the bonds is that,after the sale of bonds, a bondholder would have noright, if the redevelopment trust fund were insufficient

to meet the bond obligations and the available re-sources of the county or city were insufficient to allowfor the promised contributions, to compel by judicialaction the levy of ad valorem taxation. Under thestatute authorizing this bond financing the governingbodies are not obliged nor can they be compelled tolevy any ad valorem taxes in any *899 year. The onlyobligation is to appropriate a sum equal to any taxincrement generated in a particular year from theordinary, general levy of ad valorem taxes otherwisemade in the city and county that year. Issuance of these bonds without approval of the voters of DadeCounty and the City of Miami Beach, consequently,does not transgress article VII, section 12.

All of the objections raised by the state have beenconsidered. We hold that these bonds pass legalmuster on all counts, and we therefore affirm the judgment of validation.

It is so ordered.

SUNDBERG, C. J., and ADKINS, OVERTON andENGLAND, JJ., concur. ALDERMAN, J., concurs in result only. BOYD, J., concurs in part and dissents in part with anopinion. McDONALD, J., dissents. BOYD, Justice, concurring in part and dissenting inpart.

I concur in all portions of the majority opinionexcept the holding that the bonds, which are payableover a term of years from ad valorem taxation, may beissued without approval of the voters of Dade Countyand the City of Miami Beach. As a former long-timeresident and commissioner of Dade County I amuniquely aware of the blighted condition of southMiami Beach and the need for renewal. The Florida

Constitution, however, requires that the electorates of the local governments whose revenues are beingpledged to the payment of the bonds give their ap-proval.

Article VII, section 12, Florida Constitution,provides:

Local bonds. Counties, school districts, munici-palities, special districts and local governmentalbodies with taxing powers may issue bonds, certif-icates of indebtedness or any form of tax anticipa-tion certificates, payable from ad valorem taxation

and maturing more than twelve months after issu-ance only:

(a) to finance or refinance capital projects au-thorized by law and only when approved by vote of the electors who are owners of freeholds therein notwholly exempt from taxation; or

(b) to refund outstanding bonds and interest andredemption premium thereon at a lower net averageinterest cost rate.

The 1885 Constitution contained a similar re-

striction on the power of local governments to issuebonds. Art. IX, s 6, Fla.Const. (1885). During theGreat Depression, this Court carved out exceptions tothe restriction by declaring certain kinds of countyindebtedness not to be “bonds.” Posey v. WakullaCounty, 148 Fla. 115, 3 So.2d 799 (1941); Tapers v.Pichard, 124 Fla. 549, 169 So. 39 (1936). In doing so,the Court departed from its earlier practice of enforc-



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392 So.2d 875 (Cite as: 392 So.2d 875)


ing the plain language of the constitution on this is-sue. Leon County v. State, 122 Fla. 505, 165 So. 666(1936).

The 1885 constitution had referred only to“bonds.” When the people revised the referendumrequirement for local bonds in 1968, they spoke outclearly against the Court's carved-out exceptions.They changed the language to its present form, ap-plying the restriction to “bonds, certificates of in-debtedness, or any form of tax anticipation certifi-cates, payable from ad valorem taxation....” In State v.County of Dade, 234 So.2d 651 (Fla.1970), this Courtconcluded that the people's intent was that the restric-tive language be applied without exception. The Courtrejected a bond issue that was, like the present one,payable over a term of years from ad valorem taxation

without referendum.

I would hold that the bonds are payable from advalorem taxation and therefore must be approved bythe electorates of the taxing authorities in question.Article VII, section 12 of the Florida Constitution requires a referendum. The Court's opinion providesno authority for or even any coherent explanation of its approval of these bond issues.

As the majority opinion correctly points out, wemust look at the substance, and not the form, of whatthe local taxing authorities*900 are undertaking; we

must carefully analyze the undertaking and not bedeterred by the confusing and seemingly sophisticatedlanguage of the statute and the bond resolutions.

After this Court's approval of the validation de-cree, the statutory provision directing that the countyand the city make annual contributions until the re-tirement of the bonds will become a mandatory, con-tractual duty to make the contributions. A purchaser of any of the bonds will be able to enforce that duty by judicial action.

The majority fails to recognize that the promised

annual contributions based on the “tax incrementrevenue” constitute a pledge by the county and city of their general revenue. Such general obligation bondsare by definition “payable from ad valorem taxation.”

If the scheme of the redevelopment project wereto repay the debt from the revenue realized from sales,leases, and fees and charges imposed by the Agency,

there would, by long established authority, be noproblem. If the project revenue were to be supple-mented with funds from a non-ad valorem revenuesource, there would be no problem. But the statute

authorizes the county and the city to pledge annualcontributions, measured by the accrued tax incrementrevenue, from their general operating budgets. Thegeneral operating revenues of cities and counties inFlorida are primarily drawn from ad valorem taxation.

Tucker v. Underdown, 356 So.2d 251 (Fla.1978) does not support the approval of these bonds. In thatcase the issue was whether a county's action in ap-propriating, as a discretionary matter, revenues fromits general fund to the retirement of bonds that hadpreviously been ruled valid because ad valorem rev-enues were not pledged to them, violated any promises

to bondholders or taxpayers. Here the city and thecounty will have no discretion; they will be required toannually contribute to the retirement of the bonds.

The proponents of this plan, as well as the legis-lators who have authorized this kind of plan, seem tothink that the improvements wrought by redevelop-ment will produce a tremendous windfall of newrevenue for Dade County and the City of MiamiBeach, and that this new, unencumbered revenue canbe pledged to the repayment of the bonds with little orno effect on the other taxpayers of the county and thecity. The new development in the area, however, will

give rise to new demands for local government ser-vices which will, I predict, far outstrip the servicesnow provided to the area. There will be new and in-creased need for building inspection, police and fireprotection, street and park maintenance, and othergovernment services. The city and county will beproviding new and increased services to the area,while also being obligated to contribute to the trustfund (for the benefit of bondholders) an amount equalto any increased tax revenue realized in the redevel-opment area.

If, after the sales of the bonds and the accrual of

the tax increment revenue, the redevelopment trustfund were to contain insufficient money to pay thebonds, and the commitments and resources of thecounty or city were such that they might choose not tomake the required contributions, a bondholder wouldhave the right to compel by judicial action the levy of an ad valorem tax sufficient to raise the revenue tomake the promised contributions. This tax could be



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392 So.2d 875 (Cite as: 392 So.2d 875)


levied upon all taxable property in the city and thecounty.

I dissent from the judgment of the Court which, in

my view, annihilates a constitutional restriction thatwas designed to keep local officials from plungingtheir taxpayers into debt without their approval.

Fla., 1980. State v. Miami Beach Redevelopment Agency 392 So.2d 875

END OF DOCUMENT



Page 1

246 So.2d 737 (Cite as: 246 So.2d 737)


Supreme Court of Florida. Marvin I. BANNON and Lillian M. Bannon, his wife,

Appellants, v.

PORT OF PALM BEACH DISTRICT, and Peanut

Island Properties, Inc., Appellees.

No. 39374. March 31, 1971.

Class action by taxpayers against port district and

private corporation alleging that district leased prop-erty it owned which did not constitute a ‘port facility’

to corporation for private purpose in violation of its

statutory grant of powers. The corporation counter-

claimed for declaration that land did constitute a ‘port

facility’ and that the district had statutory and organic

authority to make the lease. The Circuit Court for

Palm Beach County, James R. Stewart, Jr., J., found

that land involved was a ‘port facility’ and that the

lease was valid, and plaintiffs appealed. The Supreme

Court, Roberts, C.J., held that port district's artificial

island that was created by dumping spoil occasioned

by dredging inlet and which was used primarily as

undeveloped recreational facility, public landing, andanchorage, and also served as windscreen to protect

port terminals from adverse weather, was ‘port facil-

ity’ as defined by statutes, and thus was properly

subject to being leased for public or private purposes

as governing body of district determined was in best

interests of the port.

Affirmed.

West Headnotes


268 Municipal Corporations 268XI Use and Regulation of Public Places,

Property, and Works 268XI(C) Public Buildings, Parks, and Other

Public Places and Property 268k722 k. Grants of Rights to Use Public

Property in General. Most Cited Cases

Port district's artificial island that was created by

dumping spoil occasioned by dredging inlet and which

was used primarily as undeveloped recreational facil-

ity, public landing, and anchorage, and also served as

windscreen to protect port terminals from adverse

weather, was “port facility” as defined by statutes, and

thus was properly subject to being leased for public or

private purposes as governing body of district deter-

mined was in best interests of the port. F.S.A. §

315.02(6).


268 Municipal Corporations 268XI Use and Regulation of Public Places,

Property, and Works 268XI(C) Public Buildings, Parks, and Other

Public Places and Property 268k722 k. Grants of Rights to Use Public

Property in General. Most Cited Cases

Port district had power to lease its artificial island

to private corporation for private development at no

public expense. F.S.A. §§ 315.03(9, 14), 315.14,

315.15; Sp.Acts 1915, c. 7081, § 1 et seq.




Expenditures 268k870 k. Limitation on Use of Funds or

Credit in General. Most Cited Cases

Leasing by port district of its artificial island to

private corporation for development at private ex-

pense did not violate constitutional and statutory pro-

hibition against lending of credit of the state for pri-vate purpose where no bonded indebtedness or mon-

etary obligation of any kind attached to port district as

result of lease, district did not become joint owner or

stockholder of corporation, and it was not obligated in

any manner to encumber its credit to advantage of

corporation. F.S.A. §§ 315.03(9), 315.14;

F.S.A.Const. art. 7, § 10.



Page 2

246 So.2d 737 (Cite as: 246 So.2d 737)


[4] States 360 119


curities 360k119 k. Limitation of Use of Funds or

Credit. Most Cited Cases

(Formerly 360k19)

Article of State Constitution relating to prohibi-

tion against credit of state being pledged or lent acts to

protect public funds and resources from being ex-

ploited in assisting or promoting private ventures

when public would be at most only incidentally ben-

efited. F.S.A.Const. art. 7, § 10.

*737 James S. Robinson, of Sullivan & Robinson,

West Palm Beach, for appellants.

Douglas C. Fulton, of Burns & Weber, West Palm

Beach, for Port of Palm Beach District.

Peter Van Andel, of Gunster, Yoakley, Criser, Stewart

& Hersey, Palm Beach, for Peanut Island Properties,

Inc.

*738 Joseph C. Jacobs and Ben H. Wilkinson, of

Ervin, Pennington, Varn & Jacobs, Tallahassee, for

Save Peanut Island, Inc., amicus curiae.

ROBERTS, Chief Justice. We have for review on direct appeal a judgment

of the trial court validating a long term lease between

the Port of Palm Beach District and Peanut Island

Properties, Inc. in which, inter alia, that court con-

strued a controlling provision of the Constitution and

held specifically that the lease and the development

plan do not violate Sections 5, 7 and 10 of Article IX,

Florida Constitution of 1885 as amended, and do not

violate Sections 9 and 10 of Article VII, 1968 revision

of the Florida Constitution, F.S.A.

Appellants appearing below as individuals and on

behalf of the taxpayers of the Port of Palm Beach

District instituted the litigation contending that the

Port had violated its statutory grant of powers as set

forth in s 315.03, Florida Statutes, F.S.A. as well as

the sections of the Constitution above mentioned.

They alleged that the Port leased property it owned but

which did not constitute a ‘port facility’ as defined by

the statutes to a private corporation which they con-

tend was for a private rather than a public purpose.

Peanut Island Properties, Inc., the lessee and appellee

here, denied the allegations and counterclaimed for adeclaration that the land in question did constitute a

‘port facility’ and that the Port had statutory and or-

ganic authority to make the lease.

The trial court found that the Port District had the

authority by statute to lease the land in question to the

tenant, that the land involved as the subject matter of

the lease was a ‘port facility’ as defined in s 315.02(6),

Florida Statutes, F.S.A., that the Port District by en-

tering the lease did not appropriate money for or lend

its credit to or become a joint owner with or levy taxes

for the benefit of the lessee, and that the lease is valid

and binding between the parties.

Being aggrieved by the judgment, the appellants

bring this appeal and pose questions:

1. Is Peanut Island a ‘port facility’ as defined in

the applicable statutes or acts?

2. Does the Port have the authority under the ap-

plicable special and general acts of the State of Florida

to lease the land for the purposes contained in the

lease?

3. Does the proposed implementation of the lease

violate the constitutional and statutory prohibitions

against lending the credit of the State of Florida for a

private purpose?

We shall deal with them in the order in which they

are presented.

[1] Appellants contend that although the Port

District has owned a portion of the island for a long

time, the property has never been utilized for any port

purposes and cannot quality as a ‘port facility.’ We do

not agree. Section 315.02(6), Florida Statutes, F.S.A.

defines a port facility as follows:

‘The term ‘port facilities' shall mean and shall

include harbor, shipping and port facilities and im-

provements of every kind, nature and description,

including (but without limitation) channels, turning

basins, jetties, breakwaters, public landings, wharves,



Page 3

246 So.2d 737 (Cite as: 246 So.2d 737)


docks, markets, parks, recreational facilities, struc-

tures, buildings, piers, storage facilities, public

buildings and plazas, anchorages, utilities, bridges,

tunnels, roads, causeways and any and all property and

facilities necessary or useful in connection with theforegoing, and any one or more or any combination

thereof and any extension, addition, betterment or

improvement of any thereof.’

Peanut Island is an artificial island that was cre-

ated by dumping the spoil occasioned by dredging the

Palm Beach Inlet. The Port District's acquisition be-

gan subsequent*739 to a resolution of the Port Com-

missioners in 1921 and was completed in 1950. The

purpose of the Port District is indicated in the initial

purchase resolution which, inter alia, said:

‘Whereas, the said Island is capable of being im-proved by the erection of docks and wharves and the

construction of buildings on said island for stores,

warehouses, quarantine or other purposes; and

‘Whereas, the Lake Worth Inlet District can better

maintain an inlet between the waters of the Atlantic

Ocean, better attain the objects of the creation of the

said Inlet District and contribute more to the mainte-

nance of the health of the inhabitants of the Territory

embraced in the said District and the welfare of said

District if control and ownership of land not owned by

the State of Florida and created through the dredging

operations of the said District be vested in the saidLake Worth Inlet District.’

It appears from the record here that since the time

of purchase, the portion of Peanut Island owned by the

Port District has been used primarily as an undevel-

oped recreation facility, a public landing, and an-

chorage. It also serves as a windscreen to protect the

port terminals from adverse weather. The evidence

clearly indicates that the portion of the island owned

by the District is a ‘port facility’ as defined by the

statutes, and being so, it is properly subject to being

leased for public or private purposes as the governing

body of the District determines is in the best interest of the Port.

[2] We next consider the question of whether or

not the Authority had the power to lease the land for a

private development at no public expense. Section

315.03(9) of the Florida Statutes, F.S.A., which in

enumerating the powers of ports, states the following:

‘To sell at public or private sale or Lease for

public or private purposes all or any portion of any

port facilities now or hereafter owned by the unit,

including any such facilities as extended, enlarged orimproved, and all or any portion of any property of the

unit improved, created, extended or enlarged under the

authority of this law, on such terms and subject to such

conditions as the governing body shall determine to be

in the best interests of the unit.’ (Emphasis supplied)

Further, Section 315.03(14) states the following: ‘To lease or rent, or contract with others for the

operation of all or any part of any port facilities now or

hereafter acquired, owned or constructed by the unit,

on such terms and for such period or periods and

subject to such conditions, as the governing body shall

determine to be in the best interests of the unit.’(Emphasis supplied)

Section 315.14 defines ‘public purposes' as used

in Chapter 315 of the Florida Statutes, as follows: ‘Public purposes.-It is hereby determined and

declared that each and all of the powers conferred by

this law and the exercise thereof are proper public and

municipal purposes.’

Also, Section 315.15 states: ‘Additional and alternative method.-This law

shall be deemed to provide an additional and alterna-

tive method for the doing of the things authorizedhereby and shall be regarded as supplemental and

additional to the powers conferred by any other law,

either general, special or local, and shall not be re-

garded as in derogation of any power now, existing.’

In addition to the foregoing, we find that the Port of

Palm Beach District was created by Chapter 7081,

Special Acts of the Legislature, 1915, which has been

supplemented and amended from time to time. Section

6, as amended, *740 Chapter 7522, Acts of 1917,

states the following:

‘* * * that the Board of Commissioners of the

Lake Worth Inlet District (original name) be and It ishereby authorized and empowered for and on behalf of

the said Lake Worth Inlet District, to use, hold, oc-

cupy, control, develop, lease or make any other dis-

position of any property to be acquired for and on

behalf of the said Lake Worth Inlet District under and

by virtue of this Act, which said Board shall deem

advisable and for the best interests of the said Lake



Page 4

246 So.2d 737 (Cite as: 246 So.2d 737)


Worth Inlet District.’ (Emphasis supplied)

Section 21(N) of Chapter 59-1701, Special Acts

of 1959, and relating to the District among other

things provides: ‘The district shall have power to contract with any

person, private or public corporation, the state of

Florida, or any agency, instrumentality or county,

municipality, political subdivision thereof, or any

agency, instrumentality or corporation of or created by

the United States of America, With respect to such

port facilities, or any port improvements or any parts

thereof, and shall also have power to accept and re-

ceive grants or loans from the same and in connection

with any such contract, grant or loan, to stipulate and

agree to such covenants, terms and conditions as the

governing body of the district shall deem appropriate.’

(Emphasis supplied)

In view of the foregoing, it is obvious that the

Authority acted within the orbit of its power in making

the lease.

[3][4] We finally reach the question of whether or

not the leasing of the property to a private concern for

development at private expense violates the constitu-

tional and statutory prohibition against the lending of

the credit of the State for a private purpose, or whether

or not the overall plan is prohibited by the organic law

of the State. It is submitted that Section 315.03(9),

Florida Statutes, F.S.A., is not unconstitutional as itrelates to the leasing of a port facility to a private party

so long as the private entity is performing a public

function or serving a public purpose as an integral part

of an overall plan. The decisions of this Court relied

upon by the appellants in State v. Jacksonville Port

Authority, 204 So.2d 881 (Fla.1967) and State v.

County of Dade, 210 So.2d 200 (Fla.1968) might give

some comfort to appellants in their argument if, as in

both those cases, the project herein involved the is-

suance of revenue bonds or some other form of public

financing to finance the construction of a facility for

the exclusive use of a private concern, but, in the

present instance, we are faced with no such financingscheme. No bonded indebtedness or monetary obli-

gation of any kind attached to the Port District as a

result of the lease. Also involved is the basic issue of

whether a long term lease of property owned by the

Port District to a private concern is, per se, a violation

of Article VII, Section 10, Florida Constitution of

1968, relating to the prohibition against the credit of

the State being pledged or lent. It is suggested by

appellants that due to the lack of a paramount public

purpose being served, the lease sub judice is an en-

cumbrance upon public property for the benefit of a

private concern to the extent of creating an ‘in fact’unconstitutional joinder of public and private owner-

ship and responsibility for the venture planned. We do

not find it necessary to determine whether the pur-

poses to be served by the development of the leased

property are primarily public or private in nature. The

District in leasing the property in question was exer-

cising a power conferred on it by the 1959 Port Facil-

ities Financing Law. Section 315.14 of that law de-

termines and declares, '* * * that each and all of the

powers conferred by this law and the exercise thereof

are proper public and municipal purposes.' Appellants

fail to demonstrate otherwise. The District, by virtue

of the lease agreement, did not become a joint owneror stockholder of the private *741 tenant, nor did it

lend, obligate or in any manner encumber its credit to

the advantage of the tenant. Contrary to the allegations

of appellants, the lease does not operate to guarantee

that the tenant will inherit the ‘tax-free’ status our

Legislature has bestowed upon property held by the

Port District. The District's participation in the trans-

action is limited to that of a lessor and does not involve

any responsibility for the financing, promotion or

development of the proposed project. We agree with

appellants' contention that Section 10, Article VII,

Florida Constitution of 1968, acts to protect public

funds and resources from being exploited in assisting

or promoting private ventures when the public would

be at most only incidentally benefited. The rationale of

this constitutional dictate was examined in depth in

Bailey v. City of Tampa, 92 Fla. 1030, 111 So. 119

(1926):

‘The reason for this amendment was that, during

the years immediately preceding its adoption, the state

and many of its counties, cities, and towns had by

legislative enactment become stockholders or bond-

holders in, and had in other ways loaned their credit to,

and had become interested in the organization and

operation of, railroads, banks, and other commercial

institutions. Many of these institutions were poorly

managed, and either failed or became heavily in-

volved, and, as a result, the state, counties, and cities

interested in them became responsible for their debts

and other obligations. * * * Hence the amendment, the

essence of which was to restrict the activities and

functions of the state, county, and municipality to that

of government, and forbid their engaging directly or



Page 5

246 So.2d 737 (Cite as: 246 So.2d 737)


indirectly in commercial enterprises.’

In the case sub judice, the District has no financial

responsibility and if all failed for the corporate tenant,

the District would not bear any responsibility or ob-ligation to the creditors nor would its ownership of the

land be committed for such. Its interest and credit

remain free from attachment and neither the spirit nor

the letter of Article VII, Section 1, Florida Constitu-

tion of 1968 has been violated.

We have carefully examined the decree of the

able trial judge and finding it to be without error, the

judgment is

Affirmed.

CARLTON, ADKINS and BOYD, JJ., and REVELS,

Circuit Judge, concur.

Fla. 1971. Bannon v. Port of Palm Beach Dist. 246 So.2d 737

END OF DOCUMENT



Page 1



Supreme Court of Florida. Patricia THORNBER, et al., Petitioners,

v. CITY OF FORT WALTON BEACH, Respondent.

No. 74494. Oct. 11, 1990.

City council members brought action against city

for reimbursement of attorney's fees incurred while

defending themselves against various lawsuits arising

from dismissal of city officials. The Circuit Court,Okaloosa County, Erwin Fleet, J., awarded portion of

claimed fees, and appeal was taken. The District Court

of Appeal affirmed in part and reversed in part, 544

So.2d 230. On review, the Supreme Court, McDonald,

J., held that: (1) city council members' successful

action to enjoin recall petition arose out of perfor-

mance of their official duties and served public pur-

pose, entitling members, under common law, to re-

imbursement of attorney's fees from city; (2) statute

governing awards of attorney's fees to public officials

is not intended to replace common-law remedy com-

pletely, and is not exclusive mechanism authorizing

award of attorney's fees to public officials defendingagainst litigation arising from performance of their

public duties; and (3) council members were prevail-

ing parties entitled to reimbursement for attorney's

fees in civil rights action brought by police chief after

members voted to discharge him.

Decision approved in part and disapproved in

part.

West Headnotes



283k93 Compensation and Fees 283k101 k. Allowance and recovery of

compensation. Most Cited Cases

Public officials' entitlement to attorney fees in-

curred while defending themselves against litigation

arising from performance of their official duties while

serving public purpose arises independent of statute,

ordinance, or charter.





For public officials to be entitled to representationat public expense, litigation must arise out of or in

connection with performance of their official duties

and serve public purpose.




268k163 k. Reimbursement of expend-

itures. Most Cited Cases

City council members' successful action to enjoin

recall petition arose out of performance of their offi-

cial duties and served public purpose, entitling mem-

bers, under common law, to reimbursement of attor-

ney fees from city; recall petition was based on alleged

malfeasance of members in voting in favor of resolu-

tions effectively dismissing city manager and police

chief, and members' action served public interest of

insuring that recall petition was facially correct, alt-

hough the members were not defendants.

[4] Action 13 35

13 Action 13II Nature and Form

13k33 Statutory Remedies 13k35 k. Cumulative or exclusive remedies.

Most Cited Cases



Page 2



Statutes 361 222

361 Statutes 361VI Construction and Operation

361VI(A) General Rules of Construction 361k222 k. Construction with reference to

common or civil law. Most Cited Cases

Whether statutory remedy is exclusive or merely

cumulative depends upon legislative intent as mani-

fested in language of statute; presumption is that no

change in common law is intended unless statute is

explicit and clear in that regard.

[5] Statutes 361 222

361 Statutes 361VI Construction and Operation 361VI(A) General Rules of Construction

361k222 k. Construction with reference to


Unless statute unequivocally states that it changes

common law, or is so repugnant to common law that

the two cannot coexist, statute will not be held to have

changed common law.





Statutes 361 222

361 Statutes 361VI Construction and Operation

361VI(A) General Rules of Construction 361k222 k. Construction with reference to


Statute governing awards of attorney's fees to

public official is not intended to replace common-law

remedy completely, and is not exclusive mechanism

authorizing award of attorney's fees to public officials

defending against litigation arising from performance

of their public duties. West's F.S.A. § 111.07.






City council members' failure to claim attorney

fees incurred in enjoining recall petition under com-

mon law did not preclude recovery of attorney fees

from city under common-law theory. West's F.S.A. §

111.07.

[8] Election of Remedies 143 1

143 Election of Remedies 143k1 k. Nature and grounds in general. Most

Cited Cases

Election of Remedies 143 7(1)

143 Election of Remedies 143k7 Acts Constituting Election

143k7(1) k. In general. Most Cited Cases

When more than one remedy exists, but they are

not inconsistent, only full satisfaction of right assertedwill estop plaintiff from pursuing other consistent

remedies; furthermore, if mistaken remedy is pursued,

proper remedy is not thereby waived.






City council members were prevailing parties

entitled to reimbursement for attorney fees incurred in

civil rights action brought by police chief after mem-

bers voted to discharge him; police chief voluntarily

dismissed council members in their individual capac-

ities with prejudice as part of settlement with city on



Page 3



condition that they would seek their attorney fees from

city and not against him. West's F.S.A. § 111.07.

[10] Costs 102 194.48

102 Costs 102VIII Attorney Fees

102k194.48 k. On dismissal, nonsuit, default,

or settlement. Most Cited Cases

In general, when plaintiff voluntarily dismisses

action, defendant is prevailing party for purpose of

awarding attorney's fees.

[11] Costs 102 194.48

102 Costs 102VIII Attorney Fees 102k194.48 k. On dismissal, nonsuit, default,

or settlement. Most Cited Cases

Determination on the merits is not prerequisite to

award of attorney's fees where statute provides that

they will inure to prevailing party.






City council members who were entitled to re-

imbursement from city for attorney fees incurred in

challenging recall election and defending federal civil

rights action were not entitled to fees incurred in their

efforts to collect those fees under statute authorizing

such award in connection with claims that do not raise

justiciable issue; city's defense of council member's

claim for fees did not completely lack justiciable issue

of law or fact. West's F.S.A. § 57.105.

[13] Costs 102 194.44

102 Costs 102VIII Attorney Fees

102k194.44 k. Bad faith or meritless litigation.

Most Cited Cases

Costs 102 260(1)

102 Costs 102X On Appeal or Error

102k259 Damages and Penalties for Frivolous

Appeal and Delay 102k260 Right and Grounds

102k260(1) k. In general. Most Cited

Cases

Purpose of statute authorizing award of attorney's

fees to prevailing party in action in which there is

complete absence of justiciable issue is to discourage

baseless claims, stonewall defenses, and sham appeals

in civil litigation by placing price tag through attor-

ney's fee award on losing parties who engage in these

activities. West's F.S.A. § 57.105.

*915 George E. Day and Timothy I. Meade of George

E. Day, P.A., Ft. Walton Beach, for petition-

ers/cross-respondents.

*916 James E. Moore, Bert Moore and Alice H.

Murray of Moore, Kessler & Moore, Niceville, for

respondent/cross-petitioner.

McDONALD, Justice.

We review City of Fort Walton Beach v. Grant, 544 So.2d 230 (Fla. 1st DCA 1989), based on express

and direct conflict with Ferrara v. Caves, 475 So.2d

1295 (Fla. 4th DCA 1985). We have jurisdiction. Art.

V, § 3(b)(3), Fla. Const. We approve in part and quash

in part Grant and approve Ferrara.

This case involves claims by Fort Walton Beach

city council members Thornber, Franklin, and Grant

for reimbursement of attorney's fees expended for

private representation in six different legal and ad-

ministrative matters arising from their actions while

council members.FN1

We discuss only the council

members' claim for reimbursement of attorney's feesspent in successfully enjoining a recall petition calling

for their removal from office and in defending against

a federal civil rights action filed against the city, the

mayor, and themselves in their official and individual

capacities.

FN1. These legal and administrative actions



Page 4



each arose from the same incident. City res-

idents elected a new mayor and Thornber and

Franklin as city council members, who ran on

a “clean up” city government platform. Prior

to being sworn into office Thornber, Frank-lin, and the mayor allegedly met privately

and drafted several resolutions calling for the

city attorney's resignation, the city manager's

dismissal, and the appointment of the mayor

as acting city manager. The entire city coun-

cil later passed these resolutions at a public

meeting with Thornber, Franklin, and Grant,

who had been elected previously and had not

attended the alleged “secret” meeting, voting

in favor of the resolutions. As acting city

manager the mayor fired the police chief.

The trial court denied the recall petition claimbecause the council members initiated the action and

section 111.07, Florida Statutes (1981), under which

they claimed entitlement to fees, only allows reim-

bursement of prevailing defendants. The district court

affirmed, relying on the same rationale. The council

members now allege conflict with Ferrara which

allowed town commissioners to recover attorney's fees

expended in obtaining declaratory and injunctive

relief from a recall petition based on a common law

theory rather than on section 111.07. The council

members also challenge the district court's affirmance

of the trial court's refusal to award attorney's fees

under section 57.105, Florida Statutes (1981), for thecity's frivolous defense of their claim for fees arising

from the federal civil rights action. Lastly, the council

members claim appellate attorney's fees under section

59.46, Florida Statutes (1987).

As to the federal civil rights claim, the trial court

awarded attorney's fees to Grant as a prevailing de-

fendant under section 111.07 but refused to award fees

to Thornber and Franklin, finding that they held a

private meeting which violated sunshine laws and

prevented recovery. The district court affirmed the

award of fees to Grant. It reversed the decision with

respect to Thornber and Franklin, however, holding

that the trial court improperly tried the sunshine law

violation issue and that they were entitled to reim-

bursement as prevailing defendants. The city now

cross-petitions regarding this decision, contending

that the council members did not prevail in the civil

rights action by virtue of a voluntary dismissal with

prejudice.FN2

FN2. The city also cross-petitions on the

district court's affirmance of the trial court's

determination of the reasonable amount of

fees awarded to Grant, contending that it vi-olates Florida Patient's Compensation Fund

v. Rowe, 472 So.2d 1145 (Fla.1985). We find

this claim to be without merit.

We first address whether the council members are

entitled to reimbursement of attorney's fees from the

city for successfully enjoining the recall petition. For

the reasons expressed in the district court's opinion,

we agree that the council members cannot recover

their attorney's fees expended in enjoining the recall

petition from the city under section 111.07. In this

case, however, our inquiry does not end at whether the

council members are entitled to recover fees undersection 111.07.

[1][2] Florida courts have long recognized that

public officials are entitled to legal representation at

public expense to *917 defend themselves against

litigation arising from the performance of their official

duties while serving a public purpose. E.g., Miller v.

Carbonelli, 80 So.2d 909 (Fla.1955); Williams v. City

of Miami, 42 So.2d 582 (Fla.1949); Peck v. Spencer,

26 Fla. 23, 7 So. 642 (1890); Lomelo v. City of Sun-

rise, 423 So.2d 974 (Fla. 4th DCA 1982), review

dismissed, 431 So.2d 988 (Fla.1983); Ellison v. Reid,

397 So.2d 352 (Fla. 1st DCA 1981). The purpose of this common law rule is to avoid the chilling effect

that a denial of representation might have on public

officials in performing their duties properly and dili-

gently. Nuzum v. Valdes, 407 So.2d 277 (Fla. 3d DCA

1981). This entitlement to attorney's fees arises inde-

pendent of statute, ordinance, or charter. Lomelo, 423

So.2d at 976. For public officials to be entitled to

representation at public expense, the litigation must

(1) arise out of or in connection with the performance

of their official duties and (2) serve a public purpose.

Chavez v. City of Tampa, 560 So.2d 1214 (Fla. 2d

DCA 1990). See Lomelo; Nuzum; Markham v. De-

partment of Revenue, 298 So.2d 210 (Fla. 1st DCA1974), cert. denied, 309 So.2d 547 (Fla.1975).

[3] In this case the council members' legal defense

against the recall petition meets both of these re-

quirements. The factual basis for the petition was the

council members' alleged malfeasance of meeting in

violation of the sunshine law and subsequently voting



Page 5



at a public meeting in favor of resolutions effectively

dismissing the city manager and police chief.FN3

Un-

questionably, the vote taken at the public meeting was

within their official duties. There is a sufficient nexus

between the firing of these employees and the councilmembers' official duties to satisfy the first prong of

this test.FN4

FN3. The alleged sunshine law violation is of

no consequence in this case. The main thrust

of the recall petition was that the council

members' actions led to the wrongful firing

of the city manager and the police chief.

FN4. The city charter provided that the city

manager served at the pleasure of the city

council and could be hired or fired by ma-

jority vote of the council. The charter, how-ever, placed the responsibility of the hiring

and firing of the police chief with the city

manager.

The council members' action in defending against

the recall petition also served a public purpose and,

thus, satisfied the second prong of this test. The city

does not have an interest in the outcome of a recall

petition because any individual, not any specific in-

dividual, can be the officeholder at issue. Williams, 42

So.2d at 582. It does have a decided interest, however,

in protecting its officers from untimely and illegal

recall petitions. FN5 We reject the city's contention thatdefending against a recall petition only serves the

elected officials' personal interests in maintaining their

position and is devoid of public interest. Notwith-

standing that the council members have an obvious

personal interest in keeping their jobs, under the cir-

cumstances of this case the public has an overriding

interest in ensuring the effective and efficient func-

tioning of its governing body. See City of North Miami

Beach v. Estes, 214 So.2d 644 (Fla.3d DCA 1968),

cert. discharged, 227 So.2d 33 (Fla.1969); Duplig v.

City of South Daytona, 195 So.2d 581 (Fla. 1st DCA

1967). If a recall petition is commenced, the public has

an interest—and the city has a responsibility—toensure that the recall committee follows the proper

procedures, i.e., that the recall petition is facially

correct. Officials should not have to incur personal

expenses to ensure that a recall committee follows the

proper procedures. While this case presents an unusual

twist *918 in that the council members initiated the

litigation and were not actually the defendants in an

action against them, they were defending against a

recall petition, albeit in an offensive posture. We agree

with the district court in Ferrara that, in the “spirit” of

common law principles, the unique circumstances of

this case should not preclude the council membersfrom recovering attorney's fees under the common

law.

FN5. After the recall petitions were filed with

the city clerk, the council members filed an

action in circuit court to enjoin the city clerk

and supervisor of elections from processing

the petitions. Thornber v. Evans, Case No.

81–1532, Circuit Court for Okaloosa County.

The court found that the petitions against

Thornber and Franklin were filed within one

month after they were elected, in violation of

§ 100.361(6), Fla.Stat. (1981), which pro-hibits the filing of a recall petition until the

public official has served one-fourth of his or

her term of office. The petition against Grant

was timely filed, because he had been elected

some two years previously, but the court

found the petition invalid because the recall

committee failed to follow other procedures

set forth in the recall statute. The district

court affirmed. Taylor v. Thornber, 418

So.2d 1155 (Fla. 1st DCA 1982).

[4][5] Thus, the only question remaining for our

resolution on this matter is whether the remedy pro-vided by section 111.07 has superseded this common

law remedy so as to provide the exclusive means by

which public officials may recover attorney's fees

from public funds for litigation arising out of their

official duties. Whether a statutory remedy is exclu-

sive or merely cumulative depends upon the legisla-

tive intent as manifested in the language of the statute.

The presumption is that no change in the common law

is intended unless the statute is explicit and clear in

that regard. City of Hialeah v. State ex rel. Morris,136

Fla. 498, 183 So. 745 (1938); Harold Silver, P.A. v.

Farmers Bank & Trust Co., 498 So.2d 984 (Fla. 1st

DCA 1986); Sand Key Associates, Ltd. v. Board of

Trustees of Internal Improvement Trust Fund, 458

So.2d 369 (Fla. 2d DCA 1984). Unless a statute une-

quivocally states that it changes the common law, or is

so repugnant to the common law that the two cannot

coexist, the statute will not be held to have changed

the common law. Cullen v. Seaboard Air Line Rail-

way, 63 Fla. 122, 58 So. 182 (1912); Peninsular Sup-



Page 6



ply Co. v. C.B. Day Realty Inc.,423 So.2d 500 (Fla. 3d

DCA 1982); In re Levy's Estate, 141 So.2d 803 (Fla.

2d DCA 1962).

[6][7][8] The express language of section 111.07 makes no mention of whether it superseded the

common law with regard to the circumstances under

which public officials are entitled to have the state

provide for their representation, so as to provide the

exclusive means by which officials may recover at-

torney's fees from public funds. Moreover, there is

nothing in the legislative history or language of the

statute by which to imply such an interpretation.FN6

Statutory abrogation by implication of an existing

common law remedy, particularly if the remedy is

long established, is not favored. 1 Am.Jur.2d, Actions

§ 77 (1962). See Tamiami Trail Tours, Inc. v. City of

Tampa, 159 Fla. 287, 31 So.2d 468 (1947); Peninsular Supply Co. We agree with the district court that sec-

tion 111.07 recognizes the common law but disagree

that the legislature intended this statute to replace the

common law completely. Thus, we hold that the stat-

ute is not the exclusive mechanism authorizing an

award of attorney's fees to public officials defending

against litigation arising from the performance of their

public duties.FN7

We therefore direct *919 the district

court to remand this portion of this case to the trial

court to order the city to reimburse the attorney's fees

expended by the council members in defending

against the recall petition.FN8

FN6. Section 111.07 as originally enacted

only authorized the state to defend any tort

action brought against public officials for

alleged negligence arising out of the scope of

their employment. In 1979 the legislature

added the majority of the language pertinent

to this case by amending the statute to in-

clude any civil action brought against a pub-

lic official. The major cause of that amend-

ment was the increase in federal civil rights

suits against public officials. In 1980 the

legislature again amended the language of

the statute to encompass any civil action

“arising from a complaint for damages or

injury suffered as a result of any act or

omission.” This change occurred as a result

of this Court's decision in District School Bd.

v. Talmadge, 381 So.2d 698 (Fla.1980),

which held that complainants could sue pub-

lic officials individually, the state, or both for

the officials' tortious acts. We can find

nothing in any staff analysis or report con-

cerning either the 1979 or 1980 amendments

which mentions the common law or existing

law with regard to providing public officialsan attorney at public expense.

FN7. If the statute were the exclusive remedy

by which public officials could obtain re-

imbursement of attorney's fees from public

funds, because § 111.07 is limited to civil

actions, an official's successful defense of

misconduct charges brought in proceedings

before the Ethics Commission would not

qualify for reimbursement of attorney's fees

expended in that defense. The commission is

an investigatory body and located in the leg-

islative branch of government. Commissionon Ethics v. Sullivan, 489 So.2d 10

(Fla.1986). Therefore, proceedings before

the commission cannot be “civil” actions.

This is further evidenced by the fact that §

112.317(2), Fla.Stat. (1989), provides that

upon a finding of a violation of the Code of

Ethics and a recommendation of a civil or

restitution penalty, the Attorney General

must bring a civil action to recover the rec-

ommended penalty. Chavez v. City of Tampa,

560 So.2d 1214 (Fla. 2d DCA 1990). Thus,

public officials would not be entitled to at-

torney's fees under § 111.07 for their suc-cessful defense of misconduct charges before

the commission, while under common law

they would be so entitled. See Ellison v. Reid,

397 So.2d 352 (Fla. 1st DCA 1981).

FN8. We are cognizant that the council

members based their claim for attorney's fees

on § 111.07 and did not attempt to recover

attorney's fees on a common law theory.

Even though neither party raised this issue,

we hold that the council members' failure to

claim fees under common law does not pre-

clude their recovery. When more than one

remedy exists, but they are not inconsistent,

only a full satisfaction of the right asserted

will estop the plaintiff from pursuing other

consistent remedies. Furthermore, if a mis-

taken remedy is pursued, the proper remedy

is not thereby waived. See Board of Public

Instruction v. Mathis, 132 Fla. 289, 181 So.





Page 8



Thornber v. City of Ft. Walton Beach 568 So.2d 914, 15 Fla. L. Weekly S535

END OF DOCUMENT



Page 1

42 So.2d 582 (Cite as: 42 So.2d 582)


Supreme Court of Florida, Division B. WILLIAMS

v. CITY OF MIAMI.

Nov. 8, 1949.

Action by Robert R. Williams against the City of Miami, for a decree of subrogation against the city forthe amount paid by plaintiff on a judgment renderedagainst plaintiff and a surety on a supersedeas bond

given by plaintiff and others in compliance with anorder to stay execution of final decree fixing date of recall election of plaintiff and others.

The Circuit Court, Dade County, Marshall C.Wiseheart, J., entered an order dismissing the bill of complaint and the plaintiff appealed.

The Supreme Court, Chapman, J., held that thesupersedeas bond was not the obligation of the cityand that the city was not interested in the results of therecall election but such interest was personal to andthe law required that the cost should be paid by plain-

tiff and not by the taxpayers of the City and affirmedthe judgment.

West Headnotes

Subrogation 366 36

366 Subrogation 366k36 k. Persons as Against Whom Subrogation

May Be Enforced. Most Cited Cases

Former city commissioner who obtained super-

sedeas order and gave supersedeas bond to stay exe-cution of decree fixing date of recall election, was notentitled to decree of subrogation against city foramount of judgment rendered against him on bond,since bond was not city's obligation nor was city in-terested in recall election.

*582 Hendricks & Hendricks, Miami, for appellant.

S. O. Carson, Miami, for appellee.

CHAPMAN, Justice. Pursuant to the mandate of this Court ( Williams

v. Keyes, 135 Fla. 769, 186 So. 250) a special electionwas held during the year 1939 in the City of Miami.The question for decision by the voters of the city was,should the appellant Williams be recalled as a Com-missioner of the City of Miami or should he continuein said office? The election was held pursuant to thecharter and ordinance of said city. The result thereof was that a majority of the votes cast favored his recalland he was immediately removed from office. SeeDuBose v. Kelly, 132 Fla. 548, 181 So. 11; Williamsv. Kelly, 133 Fla. 244, 182 So. 881.

The Chancellor below entered a final decree or-dering the recall election held in Williams v. Keyes,supra. The Commissioners of the City of Miami af-fected by the final decree supra obtained a supersedeasorder and gave a supersedeas bond in compliancetherewith, so as to stay the execution of the terms of the final decree, which fixed the date of holding therecall election. The supersedeas bond was given by theUnited States Fidelity and Guaranty Company at thedirection of the Commissioners of the city then con-fronted by the recall election. It was clear the Com-missioners, inclusive of Williams, would each bepersonally affected by the election rather than the Cityof Miami. It was to the personal interest of Williams togive the supersedeas bond and stay the final decreefixing the date of the recall election.

Suit was filed against the United States Fidelityand Guaranty Company and Williams, et al., and a joint judgment, during December, 1940, was enteredagainst them in the sum of $4,356.00. The City of Miami was made a party to the suit on the supersedeasbond but an order of dismissal was entered against it

and no appeal therefrom was ever perfect-ed. Williams paid or satisfied the judgment and somenine years thereafter, by his bill in equity, seeks adecree of subrogation against the City of Miami forthe amount paid by him on the judgment based on thesupersedeas bond. The suit was brought on the theorythat the supersedeas bond was the obligation of theCity of Miami. An order was entered dismissing the



Page 2

42 So.2d 582 (Cite as: 42 So.2d 582)


bill of complaint. It is our view and conclusion thatthe supersedeas bond was not the obligation of theCity of Miami. It was not interested in the result of therecall election, but such interest was personal to and

the law required that the costs should be paid by ap-pellant and not by the taxpayers of the City of Mi-ami. Peck v. Spencer, 26 Fla. 23, 7 So. 642.

Affirmed.

ADAMS, C. J., and SEBRING and HOBSON, JJ.,concur.

Fla. 1949 Williams v. City of Miami 42 So.2d 582

END OF DOCUMENT



18 U.S.C.A. § 1962 Page 1


Effective:[See Text Amendments]

United States Code Annotated Currentness Title 18. Crimes and Criminal Procedure (Refs & Annos)

Part I. Crimes (Refs & Annos) Chapter 96. Racketeer Influenced and Corrupt Organizations (Refs & Annos)

§ 1962. Prohibited activities

(a) It shall be unlawful for any person who has received any income derived, directly or indirectly, from a pattern of

racketeering activity or through collection of an unlawful debt in which such person has participated as a principal

within the meaning of section 2, title 18, United States Code, to use or invest, directly or indirectly, any part of suchincome, or the proceeds of such income, in acquisition of any interest in, or the establishment or operation of, any

enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce. A purchase of secu-

rities on the open market for purposes of investment, and without the intention of controlling or participating in the

control of the issuer, or of assisting another to do so, shall not be unlawful under this subsection if the securities of the

issuer held by the purchaser, the members of his immediate family, and his or their accomplices in any pattern or

racketeering activity or the collection of an unlawful debt after such purchase do not amount in the aggregate to one

percent of the outstanding securities of any one class, and do not confer, either in law or in fact, the power to elect one

or more directors of the issuer.

(b) It shall be unlawful for any person through a pattern of racketeering activity or through collection of an unlawful

debt to acquire or maintain, directly or indirectly, any interest in or control of any enterprise which is engaged in, or the

activities of which affect, interstate or foreign commerce.

(c) It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of

which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such

enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt.

(d) It shall be unlawful for any person to conspire to violate any of the provisions of subsection (a), (b), or (c) of this

section.

CREDIT(S)

(Added Pub.L. 91-452, Title IX, § 901(a), Oct. 15, 1970, 84 Stat. 942; amended Pub.L. 100-690, Title VII, § 7033,

Nov. 18, 1988, 102 Stat. 4398.)

Current through P.L. 112-207 approved 12-7-12

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END OF DOCUMENT



18 U.S.C.A. § 1962 Page 2




42 U.S.C.A. § 1983 Page 1


Effective: October 19, 1996

United States Code Annotated Currentness Title 42. The Public Health and Welfare

Chapter 21. Civil Rights (Refs & Annos) Subchapter I. Generally

§ 1983. Civil action for deprivation of rights

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the

District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the

jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws,shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that

in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunc-

tive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the

purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to

be a statute of the District of Columbia.

CREDIT(S)

(R.S. § 1979; Pub.L. 96-170, § 1, Dec. 29, 1979, 93 Stat. 1284; Pub.L. 104-317, Title III, § 309(c), Oct. 19, 1996, 110

Stat. 3853.)

Current through P.L. 112-207 approved 12-7-12

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END OF DOCUMENT



West's F.S.A. § 111.07 Page 1



West's Florida Statutes Annotated Currentness Title X. Public Officers, Employees, and Records (Chapters 110-123)

Chapter 111. Public Officers: General Provisions 111.07. Defense of civil actions against public officers, employees, or agents

Any agency of the state, or any county, municipality, or political subdivision of the state, is authorized to provide an

attorney to defend any civil action arising from a complaint for damages or injury suffered as a result of any act or

omission of action of any of its officers, employees, or agents for an act or omission arising out of and in the scope of

his or her employment or function, unless, in the case of a tort action, the officer, employee, or agent acted in bad faith,with malicious purpose, or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.

Defense of such civil action includes, but is not limited to, any civil rights lawsuit seeking relief personally against the

officer, employee, or agent for an act or omission under color of state law, custom, or usage, wherein it is alleged that

such officer, employee, or agent has deprived another person of rights secured under the Federal Constitution or laws.

Legal representation of an officer, employee, or agent of a state agency may be provided by the Department of Legal

Affairs. However, any attorney's fees paid from public funds for any officer, employee, or agent who is found to be

personally liable by virtue of acting outside the scope of his or her employment, or was acting in bad faith, with ma-

licious purpose, or in a manner exhibiting wanton and willful disregard of human rights, safety, or property, may be

recovered by the state, county, municipality, or political subdivision in a civil action against such officer, employee, or

agent. If any agency of the state or any county, municipality, or political subdivision of the state is authorized pursuant

to this section to provide an attorney to defend a civil action arising from a complaint for damages or injury suffered as

a result of any act or omission of action of any of its officers, employees, or agents and fails to provide such attorney,

such agency, county, municipality, or political subdivision shall reimburse any such defendant who prevails in theaction for court costs and reasonable attorney's fees.

CREDIT(S)

Laws 1972, c. 72-36, § 1; Laws 1979, c. 79-139, § 1; Laws 1980, c. 80-271, § 2; Laws 1981, c. 81-259, § 55; Laws

1983, c. 83-183, § 1. Amended by Laws 1995, c. 95-147, § 677, eff. July 10, 1995.

HISTORICAL AND STATUTORY NOTES

Amendment Notes:

Section 4 of Laws 1980, c. 80-271 provides:

“This act shall apply to all actions pending in the trial or appellate courts on the date this act shall take effect [June 30,

1980] and to all actions thereafter initiated.”

CROSS REFERENCES

Negligence actions, waiver of sovereign immunity, see § 768.28.





LIBRARY REFERENCES

Counties 73. Municipal Corporations 163. Officers and Public Employees 94. States 62. Westlaw Topic Nos. 104, 268, 283, 360. C.J.S. Counties §§ 107 to 108, 118. C.J.S. Municipal Corporations §§ 372 to 373, 376, 378, 382 to 384, 390. C.J.S. Officers and Public Employees §§ 130, 270 to 274, 286, 313 to 320. C.J.S. States §§ 89, 101 to 102, 196 to 198, 202 to 204.

RESEARCH REFERENCES

ALR Library

47 ALR 5th 553, Payments of Attorneys' Services in Defending Action Brought Against Officials Individually as

Within Power or Obligation of Public Body.

Encyclopedias

Employment of Counsel, FL Jur. 2d Counties & Municipal Corporations § 106.

Payment of Officer's Damages and Defense Costs, FL Jur. 2d Cvl. Servts. & Pub. Officers & Employees § 74.

Furnishing Information as to Tax Payment; Tort Liability, FL Jur. 2d Taxation § 1529.

Forms

Florida Pleading and Practice Forms § 37:13, Payment of Attorney Fees and Costs; Reimbursement.

Treatises and Practice Aids

6 Florida Practice Series § 9:4, Action Against the State, Its Agencies or Subdivisions is the Exclusive Remedy: When

the Tortfeasor May be Held Individually Liable.

NOTES OF DECISIONS

Attorneys' fees 14 Civil actions 4 Construction and application 1 Criminal charges 3 Damages 13 Discretion 11 Parties 8 Political subdivisions 7 Questions of law and fact 12 Reimbursement to prevailing employees 6





Scope of employment 5 Special masters 9 Voluntary dismissal 10 Waiver of sovereign immunity 2

1. Construction and application

Individual application of statute governing legal representation of public officers at public expense is to be decided by

the respective governmental unit, not the judiciary. Florida Dept. of Ins., Div. of Risk Management v. Amador, App. 3

Dist., 841 So.2d 612 (2003). Officers And Public Employees 119

This section governing representation of public officers at public expense recognized common-law principle that

public officer is entitled to representation at public expense in a lawsuit arising from performance of official duties

while serving a public purpose; to deny public official representation for acts purportedly arising from performance of

his official duties would have a chilling effect upon proper performance of his duties and diligent representation of

public interest. Nuzum v. Valdes, App. 3 Dist., 407 So.2d 277 (1981). Officers And Public Employees 119

Under this section allowing representation of public officer in civil suit at public expense primary determination as to

allowance of counsel is placed in respective governmental unit rather than judiciary upon challenge by private litigant,

although this does not preclude other properly authorized public officials like attorney general from challenging

expenditures made under statute. Nuzum v. Valdes, App. 3 Dist., 407 So.2d 277 (1981). Officers And Public Em-

ployees 119

Unless authorized by statute, county funds may not be used to reimburse jailers for the expense of defending them-

selves against a federal grand jury indictment seeking to hold them criminally liable for violating the civil rights of jail

inmates. Op.Atty.Gen., 074-124, April 18, 1974.

2. Waiver of sovereign immunity

Florida statute forbidding state agencies to defend actions against public officers, West's F.S.A. § 111.07, by envi-sioning public defense of individual state officers in damage actions, did not indicate that Florida's waiver of sovereign

immunity under West's F.S.A. § 768.28 included waiver of Eleventh Amendment immunity in 42 U.S.C.A. § 1983

actions. Gamble v. Florida Dept. of Health and Rehabilitative Services, C.A.11 (Fla.)1986, 779 F.2d 1509 . Federal

Courts 266.1

State of Florida has waived its sovereign immunity with respect to civil rights actions arising out of alleged tortious

misconduct of its officers or employees; consequently, complaint alleging that a highway patrol officer exceeded his

authority by arresting plaintiff for driving while intoxicated when he lacked probable cause to do so stated a claim

against the State Highway Patrol. Meeker v. Addison, S.D.Fla.1983, 586 F.Supp. 216. Civil Rights 1395(6)

3. Criminal charges

In the absence of statutory authority, public funds may not be used to reimburse a public official for the expense of

defending a criminal charge arising out of his official actions, even though he was found not guilty of such charge.

Op.Atty.Gen., 071-253, Aug. 25, 1971.

4. Civil actions

City council member who successfully defended charges of unethical conduct before the Florida Commission on





Ethics was not entitled to city reimbursement of legal expenses under this section; since the Commission is part of the

legislative branch, a proceeding before that investigative body is not a “civil action.” Chavez v. City of Tampa, App. 2

Dist., 560 So.2d 1214 (1990), review denied 576 So.2d 285. Municipal Corporations 163

Victim's allegations that employee of Department of Corrections exceeded his authority and acted outside scope of hisemployment by causing prisoner to be reclassified to minimum custody status, and that as a result, prisoner escaped

and shot victim, were insufficient to state cause of action against employee alone in his personal capacity. Reddish v.

Smith, 468 So.2d 929 (1985). Prisons 399

A retired county officer is entitled to be reimbursed for reasonable attorney's fees incurred in successfully defending a

civil lawsuit for actions taken by that county officer while in office if the charge arose from the performance of official

duties and while the officer was serving a public purpose. Op.Atty.Gen., 98-12, Feb. 16, 1998 (1998 WL 65015).

5. Scope of employment

Marine patrol officers in the Florida department of natural resources, while employed in approved off-duty part-time

jobs with other employers are not then performing official duties of the department of natural resources and are notwithin the scope of their employment with said department and thus, would not be entitled to a publicly provided

defense by or at the expense of the department of natural resources under this section to defend any civil action arising

from a complaint for damages or injury suffered as a result of any act or omission of action arising out of and in the

scope of employment with another employer. Op.Atty.Gen., 82-31, April 30, 1982 (1982 WL 174178).

6. Reimbursement to prevailing employees

City council members were prevailing parties entitled to reimbursement for attorney fees incurred in civil rights action

brought by police chief after members voted to discharge him; police chief voluntarily dismissed council members in

their individual capacities with prejudice as part of settlement with city on condition that they would seek their at-

torney fees from city and not against him. Thornber v. City of Ft. Walton Beach, 568 So.2d 914 (1990). Municipal

Corporations 163

This section governing awards of attorney's fees to public official is not intended to replace common-law remedy

completely, and is not exclusive mechanism authorizing award of attorney's fees to public officials defending against

litigation arising from performance of their public duties. Thornber v. City of Ft. Walton Beach, 568 So.2d 914 (1990).

Officers And Public Employees 101; Statutes 222

Police officer who was joined as codefendant with county, his employer, in civil damages action arising out of his

official duties “prevailed” within meaning of West's F.S.A. § 111.07, which provides in pertinent part that if county is

authorized under that statute to provide attorney to defend civil action arising from complaint for damages suffered as

result of any act or omission of its employees and fails to provide such attorney, county shall reimburse such defendant

who prevails in the action for court costs and reasonable attorney fees, when case against the officer was dismissed

with prejudice pursuant to settlement effected by the county. Metropolitan Dade County v. Evans, App. 3 Dist., 474

So.2d 392 (1985). Counties 73

7. Political subdivisions

The Duval County Research and Development Authority is a “political subdivision of the state” for purposes of West's

F.S.A. § 111.07, which authorizes, under certain circumstances, the defense at public expense of civil actions brought

against public officers, employees or agents. Op.Atty.Gen., 89-22, April 12, 1989 (1989 WL 431615).





8. Parties

City was not obligated to pay legal fees of city councilmen in defending various actions arising out of councilman's

dismissal of city officials, as councilmen were not named parties as required under this section. City of Fort Walton

Beach v. Grant, App. 1 Dist., 544 So.2d 230 (1989), approved in part, quashed in part 568 So.2d 914. MunicipalCorporations 163

9. Special masters

A special master appointed by the circuit court to hear child support enforcement matters is entitled to a defense at

public expense in a civil action if the misconduct alleged in the civil action arose from the performance of official

duties and occurred while the master was serving a public purpose. Op.Atty.Gen., 87-46, May 21, 1987 ( 1987 WL

269927).

10. Voluntary dismissal

City councilman was entitled to reimbursement for legal fees, under this section, where dismissed city police chief brought federal civil rights action against councilman and then terminated action by voluntary dismissal. City of Fort

Walton Beach v. Grant, App. 1 Dist., 544 So.2d 230 (1989), approved in part, quashed in part 568 So.2d 914. Mu-

nicipal Corporations 163

11. Discretion

Sheriff was not required to pay, out of public funds, for attorneys fees and legal costs of one of his deputies who

successfully defended himself against criminal charges arising out of his official conduct, as § 111.065 merely gave

option to sheriff to provide costs and fees. Florida Police Benev. Ass'n, Inc. v. Miller, App. 5 Dist., 464 So.2d 236

(1985), petition for review denied 475 So.2d 694. Sheriffs And Constables 32

Whether director of division of alcoholic beverages and executive employees of division were entitled to representa-

tion at public expense in a civil suit brought against them for alleged interference with advantageous business rela-tionships and intentional tort of conspiracy was a determination primarily for the executive agency, and thus trial court

order prohibiting staff counsel from department of business regulations from further representation of director and

executive employees in their individual capacities constituted departure from essential requirements of law and would

be quashed. Nuzum v. Valdes, App. 3 Dist., 407 So.2d 277 (1981). Officers And Public Employees 119

Pursuant to this section, the Department of Legal Affairs may, in its discretion, represent a chief judge of a judicial

circuit in a tort action brought against the judge in state court or in a 42 U.S.C.A. § 1983 action brought in federal

court. Op.Atty.Gen., 89-2, Jan. 9, 1989 (1989 WL 431600).

12. Questions of law and fact

The issue of personal liability as to whether the tax collector, either individually, or as a tax collector, when the localabstract and title company makes an inquiry by telephone concerning whether or not taxes have been paid on parcels

of real estate and an employee in his office gives erroneous information to the inquiring abstract and title company

necessarily involves mixed questions of law and fact which the department of legal affairs is not empowered to resolve

and which must be determined by the courts. Op.Atty.Gen., 080-57, June 17, 1980 (1980 WL 100599).

13. Damages





The department of criminal law enforcement is not authorized by law to pay judgment for compensatory or punitive

damages rendered against a special agent of the department in civil suit arising prior to the enactment of § 768.28.

Even if § 768.28 applied, payment of punitive damages would not be authorized because this provision expressly

prohibits payment of punitive damages judgments. Op.Atty.Gen., 077-98, Sept. 21, 1977 (1977 WL 26612).

14. Attorneys' fees

City council members' failure to claim attorney fees incurred in enjoining recall petition under common law did not

preclude recovery of attorney fees from city under common-law theory. Thornber v. City of Ft. Walton Beach, 568

So.2d 914 (1990). Municipal Corporations 163

West's F. S. A. § 111.07, FL ST § 111.07

Current through Ch. 268 (End) of the 2012 2nd Reg. Sess. and the 2012 Extraordinary Apportionment Sess. of the

Twenty-Second Legislature

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END OF DOCUMENT





Effective: July 1, 2011

West's Florida Statutes Annotated Currentness Title XII. Municipalities (Chapters 165-185)

Chapter 166. Municipalities (Refs & Annos) Part I. General Provisions

166.021. Powers

(1) As provided in s. 2(b), Art. VIII of the State Constitution, municipalities shall have the governmental, corporate,and proprietary powers to enable them to conduct municipal government, perform municipal functions, and render

municipal services, and may exercise any power for municipal purposes, except when expressly prohibited by law.

(2) “Municipal purpose” means any activity or power which may be exercised by the state or its political subdivisions.

(3) The Legislature recognizes that pursuant to the grant of power set forth in s. 2(b), Art. VIII of the State Constitu-tion, the legislative body of each municipality has the power to enact legislation concerning any subject matter uponwhich the state Legislature may act, except:

(a) The subjects of annexation, merger, and exercise of extraterritorial power, which require general or special lawpursuant to s. 2(c), Art. VIII of the State Constitution;

(b) Any subject expressly prohibited by the constitution;

(c) Any subject expressly preempted to state or county government by the constitution or by general law; and

(d) Any subject preempted to a county pursuant to a county charter adopted under the authority of ss. 1(g), 3, and 6(e),Art. VIII of the State Constitution.

(4) The provisions of this section shall be so construed as to secure for municipalities the broad exercise of home rulepowers granted by the constitution. It is the further intent of the Legislature to extend to municipalities the exercise of powers for municipal governmental, corporate, or proprietary purposes not expressly prohibited by the constitution,general or special law, or county charter and to remove any limitations, judicially imposed or otherwise, on the ex-ercise of home rule powers other than those so expressly prohibited. However, nothing in this act shall be construed topermit any changes in a special law or municipal charter which affect the exercise of extraterritorial powers or whichaffect an area which includes lands within and without a municipality or any changes in a special law or municipal

charter which affect the creation or existence of a municipality, the terms of elected officers and the manner of theirelection except for the selection of election dates and qualifying periods for candidates and for changes in terms of office necessitated by such changes in election dates, the distribution of powers among elected officers, matters pre-scribed by the charter relating to appointive boards, any change in the form of government, or any rights of municipalemployees, without approval by referendum of the electors as provided in s. 166.031. Any other limitation of powerupon any municipality contained in any municipal charter enacted or adopted prior to July 1, 1973, is hereby nullifiedand repealed.





(5) All existing special acts pertaining exclusively to the power or jurisdiction of a particular municipality except asotherwise provided in subsection (4) shall become an ordinance of that municipality on the effective date of this act,subject to modification or repeal as other ordinances.

(6) The governing body of a municipality may require that any person within the municipality demonstrate the ex-istence of some arrangement or contract by which such person will dispose of solid waste in a manner consistent withthe ordinances of the county or municipality or state or federal law. For any person who will produce special wastes orbiomedical waste, as the same may be defined by state or federal law or county or city ordinance, the municipality mayrequire satisfactory proof of a contract or similar arrangement by which special or biomedical wastes will be collectedby a qualified and duly licensed collector and disposed of in accordance with the laws of Florida or the FederalGovernment.

(7) Entities that are funded wholly or in part by the municipality, at the discretion of the municipality, may be requiredby the municipality to conduct a performance audit paid for by the municipality. An entity shall not be considered asfunded by the municipality by virtue of the fact that such entity utilizes the municipality to collect taxes, assessments,fees, or other revenue. If an independent special district receives municipal funds pursuant to a contract or interlocalagreement for the purposes of funding, in whole or in part, a discrete program of the district, only that program may be

required by the municipality to undergo a performance audit.

(8)(a) The Legislature finds and declares that this state faces increasing competition from other states and othercountries for the location and retention of private enterprises within its borders. Furthermore, the Legislature finds thatthere is a need to enhance and expand economic activity in the municipalities of this state by attracting and retainingmanufacturing development, business enterprise management, and other activities conducive to economic promotion,in order to provide a stronger, more balanced, and stable economy in the state, to enhance and preserve purchasingpower and employment opportunities for the residents of this state, and to improve the welfare and competitive posi-tion of the state. The Legislature declares that it is necessary and in the public interest to facilitate the growth andcreation of business enterprises in the municipalities of the state.

(b) The governing body of a municipality may expend public funds to attract and retain business enterprises, and theuse of public funds toward the achievement of such economic development goals constitutes a public purpose. The

provisions of this chapter which confer powers and duties on the governing body of a municipality, including anypowers not specifically prohibited by law which can be exercised by the governing body of a municipality, shall beliberally construed in order to effectively carry out the purposes of this subsection.

(c) For the purposes of this subsection, it constitutes a public purpose to expend public funds for economic devel-opment activities, including, but not limited to, developing or improving local infrastructure, issuing bonds to financeor refinance the cost of capital projects for industrial or manufacturing plants, leasing or conveying real property, andmaking grants to private enterprises for the expansion of businesses existing in the community or the attraction of newbusinesses to the community.

(d) A contract between the governing body of a municipality or other entity engaged in economic development ac-tivities on behalf of the municipality and an economic development agency must require the agency or entity receivingmunicipal funds to submit a report to the governing body of the municipality detailing how the municipal funds are

spent and detailing the results of the economic development agency's or entity's efforts on behalf of the municipality.By January 15, 2011, and annually thereafter, the municipality shall file a copy of the report with the Office of Eco-nomic and Demographic Research and post a copy of the report on the municipality's website.

(e) 1. By January 15, 2011, and annually thereafter, each municipality having annual revenues or expenditures greaterthan $250,000 shall report to the Office of Economic and Demographic Research the economic development incen-tives in excess of $25,000 given to any business during the municipality's previous fiscal year. The Office of Eco-





nomic and Demographic Research shall compile the information from the municipalities into a report and provide thereport to the President of the Senate, the Speaker of the House of Representatives, and the Department of EconomicOpportunity. [FN1] Economic development incentives include:

a. Direct financial incentives of monetary assistance provided to a business from the municipality or through an or-ganization authorized by the municipality. Such incentives include, but are not limited to, grants, loans, equity in-vestments, loan insurance and guarantees, and training subsidies.

b. Indirect incentives in the form of grants and loans provided to businesses and community organizations that providesupport to businesses or promote business investment or development.

c. Fee-based or tax-based incentives, including, but not limited to, credits, refunds, exemptions, and property taxabatement or assessment reductions.

d. Below-market rate leases or deeds for real property.

2. A municipality shall report its economic development incentives in the format specified by the Office of Economicand Demographic Research.

3. The Office of Economic and Demographic Research shall compile the economic development incentives providedby each municipality in a manner that shows the total of each class of economic development incentives provided byeach municipality and all municipalities.

(f) This subsection does not limit the home rule powers granted by the State Constitution to municipalities.

(9)(a) As used in this subsection, the term:

1. “Authorized person” means a person:

a. Other than an officer or employee, as defined in this paragraph, whether elected or commissioned or not, who isauthorized by a municipality or agency thereof to incur travel expenses in the performance of official duties;

b. Who is called upon by a municipality or agency thereof to contribute time and services as consultant or advisor; or

c. Who is a candidate for an executive or professional position with a municipality or agency thereof.

2. “Employee” means an individual, whether commissioned or not, other than an officer or authorized person asdefined in this paragraph, who is filling a regular or full-time authorized position and is responsible to a municipalityor agency thereof.

3. “Officer” means an individual who, in the performance of his or her official duties, is vested by law with sovereign

powers of government and who is either elected by the people, or commissioned by the Governor and who has juris-diction extending throughout the municipality, or any person lawfully serving instead of either of the foregoing twoclasses of individuals as initial designee or successor.

4. “Traveler” means an officer, employee, or authorized person, when performing travel authorized by a municipalityor agency thereof.

(b) Notwithstanding s. 112.061, the governing body of a municipality or an agency thereof may provide for a per diem





and travel expense policy for its travelers which varies from the provisions of s. 112.061. Any such policy provided bya municipality or an agency thereof on January 1, 2003, shall be valid and in effect for that municipality or agencythereof until otherwise amended. A municipality or agency thereof that provides any per diem and travel expensepolicy pursuant to this subsection shall be deemed to be exempt from all provisions of s. 112.061. A municipality or

agency thereof that does not provide a per diem and travel expense policy pursuant to this subsection remains subjectto all provisions of s. 112.061.

(c) Travel claims submitted by a traveler in a municipality or agency thereof which is exempted from the provisions of s. 112.061, pursuant to paragraph (b), shall not be required to be sworn to before a notary public or other officerauthorized to administer oaths, but any claim authorized or required to be made under any per diem and travel expensepolicy of a municipality or agency thereof must contain a statement that the expenses were actually incurred by thetraveler as necessary travel expenses in the performance of official duties and shall be verified by a written declarationthat it is true and correct as to every material matter; and any person who willfully makes and subscribes any suchclaim that he or she does not believe to be true and correct as to every material matter, or who willfully aids or assistsin, or procures, counsels, or advises the preparation or presentation of such a claim that is fraudulent or is false as toany material matter, whether or not such falsity or fraud is with the knowledge or consent of the person authorized orrequired to present such claim, commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or

s. 775.083. Whoever receives an allowance or reimbursement by means of a false claim is civilly liable in the amountof the overpayment for the reimbursement of the public fund from which the claim was paid.

CREDIT(S)

Laws 1973, c. 73-129, § 1; Laws 1977, c. 77-174, § 1. Amended by Laws 1990, c. 90-332, § 2, eff. July 3, 1990; Laws1992, c. 92-90, § 2, eff. April 8, 1992; Laws 1993, c. 93-207, § 2, eff. May 12, 1993; Laws 1994, c. 94-332, § 2, eff.Jan. 1, 1995; Laws 1995, c. 95-178, § 1, eff. Jan. 1, 1996; Laws 1998, c. 98-37, § 1, eff. April 30, 1998; Laws 2003, c.2003-125, § 1, eff. June 10, 2003; Laws 2010, c. 2010-147, § 2, eff. July 1, 2010; Laws 2011, c. 2011-34, § 22, eff.May 5, 2011; Laws 2011, c. 2011-142, § 60, eff. July 1, 2011; Laws 2011, c. 2011-143, § 3, eff. July 1, 2011.

[FN1] As amended by Laws 2011, c. 2011-142, § 60. Laws 2011, c. 2011-34, § 22 reads “President of theSenate and the Speaker of the House of Representatives” rather than “Department of Economic Opportuni-

ty”.

Current through Ch. 268 (End) of the 2012 2nd Reg. Sess. and the 2012 Extraordinary Apportionment Sess. of theTwenty-Second Legislature


END OF DOCUMENT






West's Florida Statutes Annotated Currentness Title XLV. Torts (Chapters 766-774) (Refs & Annos)

Chapter 772. Civil Remedies for Criminal Practices 772.103. Prohibited activities

It is unlawful for any person:

(1) Who has with criminal intent received any proceeds derived, directly or indirectly, from a pattern of criminal

activity or through the collection of an unlawful debt to use or invest, whether directly or indirectly, any part of such

proceeds, or the proceeds derived from the investment or use thereof, in the acquisition of any title to, or any right,

interest, or equity in, real property or in the establishment or operation of any enterprise.

(2) Through a pattern of criminal activity or through the collection of an unlawful debt, to acquire or maintain, directly

or indirectly, any interest in or control of any enterprise or real property.

(3) Employed by, or associated with, any enterprise to conduct or participate, directly or indirectly, in such enterprise

through a pattern of criminal activity or the collection of an unlawful debt.

(4) To conspire or endeavor to violate any of the provisions of subsection (1), subsection (2), or subsection (3).

CREDIT(S)

Laws 1986, c. 86-277, § 3.

Current through Ch. 268 (End) of the 2012 2nd Reg. Sess. and the 2012 Extraordinary Apportionment Sess. of the

Twenty-Second Legislature


END OF DOCUMENT



West's F.S.A. Const. Art. 7 § 10 Page 1

Documents

Memorandum of Law Binder - City of Miami