Free Enterprise vs. Economic Incentives: The Evolution of the “Public Purpose” Fulcrum

This Article explores the evolution of Florida law regarding public-private partnerships (“P3s”) and provides practical tips for local government practitioners to best position themselves and the governments they represent for success in partnering with private entities. Local governments and the private sector may collaborate on projects involving economic development, blight elimination or redevelopment, and acquisition of a needed asset or service. However, to avoid running afoul of the Florida Constitution, the government actor must be careful to ensure that the public benefit is sufficiently served and that the project does not disproportionately benefit the private partner. The standard—although not always consistently applied by the Florida Supreme Court—varies depending on the type of financing employed by the government, specifically on whether the governmental assets to be used are in hand at the time of the project’s inception, and if not, how they will be obtained (taxation versus enterprise net revenues). In any case, the constitutionality of a given project will hinge on whether it demonstrates a sufficient public purpose to be served.

In addition to describing strategies that local government attorneys can employ to best position their projects to meet the required standards, this Article also discusses the variety of mechanisms that a local government can use to implement such projects, including a city’s homerule power; the 2013 Florida P3 statute; a specific grant of community redevelopment power; and other economic incentive programs included in various statutes and regulations. The Author is the former City Attorney for the City of Panama City Beach and a past President of the Florida Municipal Attorneys Association.

With the Best of Intentions: First Amendment Pitfalls for Government Regulation of Signage and Noise

In recent years, state and federal courts have used the fundamental right of free speech to curtail the government’s ability to regulate speech through sign and noise regulations. This Article traces that caselaw and seeks to provide best drafting practices for local governments regarding sign and noise regulations. First, the Author discusses developments regarding sign regulations, noting that the U.S. Supreme Court decision in Reed v. Town of Gilbert clarified that a court should determine the level of scrutiny to be applied based on whether the regulation is content-based in its operation, not on the government’s motive behind the regulation. As this holding requires many local governments to rewrite their sign regulations, the Author offers various suggestions, including: ensuring that regulations are content-neutral; revising regulations to confirm they are uniform to all users; regulating signage based upon zoning district; employing time and manner restrictions; and safeguarding from any subjective enforcement or favorable treatment.

Second, the Author discusses significant federal noise regulation cases, including the U.S. Supreme Court decision in Grayned v. City of Rockford, and the more recent Eleventh Circuit decision in Pine v. City of West Palm Beach, which established the current parameters to ensure government regulations are sufficiently clear and objective to avoid constitutional invalidity. The Author recommends that governments wading into the amorphous field of noise regulation should create a regulation that is well-defined, narrowly tailored, objective, and contains quantitative standards. After briefly discussing procedural safeguards, the Author concludes that, based on recent caselaw that has determined the boundaries for government sign and noise regulation, regulations in both arenas will continue to be highly scrutinized for constitutional overstep. Thus, it is best for local governments to review and redraft their existing regulations now.

Risk[y] Business: Transitioning to a Stand-Alone Self-Insurance Program

In today’s modern society, all actions are measured against risk. Regardless of the category of risk that is being evaluated and the correlated potential negative outcome, it is almost impossible to simply avoid understanding risk and continue to thrive. With special focus on the application of risk in the context of local government in Florida— specifically municipalities—the Authors highlight why it is necessary to understand risk and reasonably mitigate risk through the process known as “risk management.” Particularly, the Authors explore and analyze the “self-insured” approach to risk management by a municipality.

In order to reach a conclusion, the Authors first survey an overview of the types of risk most often facing municipalities and the implication of sovereign immunity in Florida when evaluating those risks. The Authors then provide a more in-depth discussion of the differences between fully insured and self-insured risk management programs, which proceeds to an examination of the several factors most often utilized in deciding whether a municipality chooses a self-insured risk management program. In addition, the Authors use a case study of the City of Palm Bay, Florida, which adopted the self-insured risk management program, to demonstrate how it can be implemented. The Authors conclude by providing guidance on what local governments should consider when deciding to implement the selfinsured risk management program.

From Rumblings to Reality: One City’s Story of Ethics Reform

This Article examines the formation and evolution of the City of Tallahassee’s Independent Ethics Board, primarily through the Author’s experience as Tallahassee’s Ethics Officer. The Author begins by describing how Tallahassee’s Ethics Advisory Panel (the Panel) arose from poor public perception and allegations of political corruption. The Panel undertook various tasks and activities to improve governmental transparency and ethical accountability in Tallahassee. For example, the Author documents how the Panel ultimately decided to create an Ethics Officer who could serve as an advisor for elected officials over ethical matters. The Author then elaborates on how Tallahassee’s City Commission voted and implemented various proposals submitted by the Panel, such as how the City’s new Ethics Officer would take office. In addition, the Author examines how the public was involved in Tallahassee’s ethics reform by describing how various reform groups helped pass an amendment that altered the City’s charter on ethics and campaign finance matters. The Author then discusses how the new amendment created Tallahassee’s Independent Ethics Board and, among other things, implemented the roles and responsibilities the Board is now required to fulfill. Finally, the Author concludes by providing insight on how other municipalities can create and improve their own local governmental programs based on Tallahassee’s own experiences.

Florida’s Accessory Dwelling Unit Laws: Mitigating Florida’s Housing Woes Through State-Encouraged Expansion of ADU Permitting

Accessory Dwelling Units (ADUs) are replete with benefits for local governments, communities, and various age groups. These innovative housing solutions provide affordable living options to groups with low to moderate incomes or fixed budgets; offer elderly or disabled populations with accessible living and continued independence; present homeowners with an additional source of income; and promote environmental sustainability by allowing for shorter commutes, encouraging infill, and discouraging sprawl. Despite the wide variety of benefits associated with ADUs, they are illegal by default in many municipalities due to traditional Euclidian zoning laws. Florida is one of only a few states to pass legislation that incentivizes municipalities to create ADU permitting ordinances, but the legislation has fallen short in expanding the use of ADUs throughout the state. This Article explores various solutions on how Florida’s laws can improve to encourage the use of ADUs. It begins by describing the types of laws, policies, and ways of thinking that tend to hinder ADU growth, and discusses how ADUs have managed to grow on a national scale. Next, the Author explains how ADUs can benefit Florida residents in particular, and examines why the current Florida laws fall short of their intended goals. The Author concludes by presenting various solutions to improve Florida’s laws regarding ADUs, while understanding the need for compromise between proponents and opponents of ADUs.

The Modern Family: Why the Florida Legislature Should Remodel its Antilapse Statute for Wills to Reflect the Changing Familial Structure

Though the traditional family structure is now much more complex than in the past, some statutory schemes have failed to keep up with those dynamic changes. The Author, by initially analogizing to the famous TV show Modern Family, argues that Florida’s Antilapse Statute in the wills context does not accomodate the new, complex family structure. Though Florida’s Antilapse Statute under the trust code is expansive and flexible, the same is not true in the wills context. Thus, this Article presents an argument for why Florida’s Antilapse Statute in the wills context should be slowly expanded to provide for stepchildren as well. The Article explores general estate planning options and compares Florida’s Antilapse Statute to more expansive, similar antilapse statutes in other states. In doing so, the Author applies antilapse statutes from several states to a hypothetical family to support the argument that Florida’s antilapse statute for wills is problematic in the context of a blended family. Finally, the Author proposes revisions to Florida’s Antilapse Statute for wills, and explains step by step, through factors underlying a parent-child relationship, how Florida’s legislature should begin by reforming the antilapse statute to provide for stepchildren in the wills context.