SUPREME COURT OF FLORIDA. Case No. SC04- L.T. Case No. 3D CITY OF MIAMI. Petitioner. vs. SIDNEY S. WELLMAN, ET AL.

Similar documents
IN THE DISTRICT COURT OF APPEAL THIRD DISTRICT, STATE OF FLORIDA

IN THE SUPREME COURT OF FLORIDA CASE NO. SC12- DEMARIOUS CALDWELL, Petitioner, - versus - STATE OF FLORIDA, Respondent.

SUPREME COURT OF FLORIDA. Case No. SC L.T. Case No. 4D CITY OF HOLLYWOOD. Petitioner. vs. COLON BERNARD MULLIGAN, ET AL.

IN THE SUPREME COURT OF FLORIDA CASE NO: SC04- EDNA DE LA PENA, Petitioner, vs. SUNSHINE BOUQUET COMPANY and HORTICA, Respondents.

CITY OF MIAMI, PETITIONER, RESPONDENTS.

IN THE DISTRICT COURT OF APPEAL THIRD DISTRICT OF FLORIDA. Case No. SC R.H., G.W., T.L., juveniles, Petitioners, vs.

IN THE SUPREME COURT OF FLORIDA

IN THE SUPREME COURT OF FLORIDA. Case No. SC12- ON DISCRETIONARY REVIEW FROM THE DISTRICT COURT OF APPEAL, FIRST DISTRICT

IN THE SUPREME COURT OF THE STATE OF FLORIDA. Case No. SC04-156

Henry Diaz, SC Case No.: SC Petitioner, DCA Case No.: 1D

IN THE SUPREME COURT OF FLORIDA. Petitioner, S.C. Case No. SC DCA Case No. 3D v. L.T. Case No. 08-CA-45992

IN THE SUPREME COURT OF FLORIDA CASE NO. SC DCA CASE NO. 3D THE STATE OF FLORIDA, Petitioner, -vs- MAXIMILIANO ROMERO, Respondent.

IN THE SUPREME COURT OF FLORIDA CASE NO. THE STATE OF FLORIDA, Petitioner, vs. JORGE LUIS DOMINGUEZ, Respondent.

IN THE SUPREME COURT OF FLORIDA. v. CASE NO.: SC FIRST DCA CASE NO.: 1D L.T. CASE NO.: L

CASE NO. SC07- MARIA HERRERA, PETITIONER, RESPONDENT.

IN THE SUPREME COURT OF THE STATE OF FLORIDA CASE NO. Court of Appeal s Case No.: 4D JAN KRZYNOWEK, Petitioner, -vs- TZVI SCHACHTER

IN THE SUPREME COURT OF THE STATE OF FLORIDA TALLAHASSEE, FLORIDA

IN THE SUPREME COURT OF FLORIDA CASE NO. SC JOSE VALDES and JUANA VALDES, his wife, Petitioners, vs.

IN THE SUPREME COURT OF FLORIDA CASE NO. SC STATE OF FLORIDA, Petitioner, vs. ERIC S. SMITH, Respondent.

IN THE SUPREME COURT OF FLORIDA

IN THE SUPREME COURT OF FLORIDA. CASE NO. SC (Lower Tribunal Case No. 3D07-818) MARTHA VALDEZ, Petitioner, vs.

IN THE SUPREME COURT OF FLORIDA CASE NO. SC DCA CASE NO. 3D JAMAR ANTWAN HILL, Petitioner, -vs- THE STATE OF FLORIDA, Respondent.

IN THE SUPREME COURT STATE OF FLORIDA. Case No. SC BETTY JEAN MANN, Petitioner,

IN THE SUPREME COURT OF THE STATE OF FLORIDA Case Number: SC RESPONDENT S JURISDICTIONAL BRIEF

IN THE SUPREME COURT OF FLORIDA BRIEF ON JURISDICTION OF RESPONDENT, EDWARD A. SCHILLING

IN THE SUPREME COURT OF THE STATE OF FLORIDA

IN THE SUPREME COURT OF FLORIDA RESPONDENT, CITY OF LARGO, ANSWER BRIEF ON JURISDICTION IN RESPONSE TO PETITIONER'S AMENDED BRIEF

IN THE SUPREME COURT STATE OF FLORIDA CASE NO: SC RESPONDENT S BRIEF ON JURISDICTION

IN THE SUPREME COURT OF FLORIDA CASE NO. SC DCA CASE NO. 3D VINCENT MARGIOTTI. Petitioner, -vs- STATE OF FLORIDA, Respondent.

IN THE SUPREME COURT OF FLORIDA CASE NO. SC L.T. CASE NOS. 5D

IN THE SUPREME COURT OF FLORIDA. CASE NO. SC Lower Tribunal No.: 3D LATAM INVESTMENTS, LLC., a Florida Liability Company, vs.

IN THE SUPREME OF FLORIDA RESPONDENT S ANSWER BRIEF ON JURISDICTION ON DISCRETIONARY REVIEW FROM A DECISION OF THE FOURTH DISTRICT COURT OF APPEAL

IN THE SUPREME COURT OF THE STATE OF FLORIDA

IN THE SUPREME COURT OF FLORIDA. vs. L.T. NO.: 3D ON NOTICE TO INVOKE DISCRETIONARY JURISDICTION FROM THE THIRD DISTRICT COURT OF APPEAL

IN THE SUPREME COURT OF FLORIDA CASE NO. SC IN RE: THE ESTATE OF MARY T. OSCEOLA, Petitioners, vs. PETTIES OSCEOLA, SR.

IN THE SUPREME COURT OF FLORIDA. v. Case No. SC STATE OF FLORIDA, DCA NO.: 2D

IN THE SUPREME COURT OF FLORIDA TALLAHASSEE, FLORIDA RESPONDENTS ENGLEWOOD COMMUNITY HOSPITAL AND RSKCO S ANSWER BRIEF ON JURISDICTION

IN THE SUPREME COURT OF FLORIDA

IN THE SUPREME COURT OF THE STATE OF FLORIDA CASE NO. SC CLEO LECROY, Petitioner, vs. STATE OF FLORIDA, Respondent.

IN THE SUPREME COURT OF FLORIDA CASE NO. SC: L.T. Case No. 3D CASTELO DEVELOPMENTS, LLC. Petitioner, NAKIA RAWLS, et al. Respondents.

THE SUPREME COURT OF FLORIDA. CASE NO. SC06-50 L.T. Case No. 4D

IN THE SUPREME COURT OF THE STATE OF FLORIDA. CASE NO: SC L.T. Case No. 4D

IN THE SUPREME COURT OF APPEAL OF FLORIDA

IN THE SUPREME COURT OF FLORIDA

IN THE SUPREME COURT STATE OF FLORIDA CASE NO.: SC

IN THE SUPREME COURT OF FLORIDA ON PETITION FOR REVIEW FROM A DECISION OF THE SECOND DISTRICT COURT OF APPEAL, STATE OF FLORIDA CASE NO.

IN THE SUPREME COURT OF FLORIDA

THE SUPREME COURT OF FLORIDA. v. Case No.: SC L.T. No.: 1D /3350

IN THE SUPREME COURT OF FLORIDA CASE NO. SC CHRISTINE BAUER and THOMAS BAUER, Petitioners, ONE WEST BANK, FSB, Respondent.

IN THE SUPREME COURT OF THE STATE OF FLORIDA. CASE NO. SC (4 th DCA 4D ) MALCOLM HOSWELL, Petitioner, vs. STATE OF FLORIDA, Respondent.

IN THE SUPREME COURT OF FLORIDA

NO SUPREME COURT OF FLORIDA WALTER WEISENBERG. Petitioner, vs. COSTA CROCIERE, S.p.A. Respondent.

IN THE SUPREME COURT OF FLORIDA. v. CASE NO. SC L.T. NO. 1D STATE OF FLORIDA,

RESPONDENT S ANSWER BRIEF

IN THE SUPREME COURT OF FLORIDA CASE NO. SC (Lower Tribunal Case No. 3D07-363) AHMAD ASAD, TONY GARCIA AND NOEL RIVERA, Petitioners, vs.

SUPREME COURT OF FLORIDA CASE NO.: SC PUTNAM COUNTY, Petitioner, JOHN EDMONDS and MARY EDMONDS., Respondent.

Petitioner, Respondent.

IN THE SUPREME COURT OF FLORIDA. Case No.: SC Lower Tribunal No.: 1D ADAMS GRADING AND TRUCKING, INC. and JOHN M.

IN THE SUPREME COURT OF FLORIDA CASE NO. SC HARVEY JAY WEINBERG and KENNETH ALAN WEINBERG,

SUPREME COURT OF FLORIDA. CASE NO. SCl3-1934

IN THE SUPREME COURT OF THE STATE OF FLORIDA. CASE NO. SC: 4 th DCA CASE NO: 4D STATE OF FLORIDA, Petitioner, vs. SALVATORE BENNETT,

SUPREME COURT OF FLORIDA JAMES LEVOY WATERS, Petitioner, SHERIFF, ESCAMBIA COUNTY FLORIDA, Respondent. CASE NO. SC

IN THE SUPREME COURT OF FLORIDA

CASE NO. SC L.T. CASE NO. 4D IN THE SUPREME COURT OF FLORIDA CATHERINE STANEK-COUSINS, Petitioner, STATE OF FLORIDA, Respondent.

IN THE SUPREME COURT OF FLORIDA

IN THE SUPREME COURT OF FLORIDA CASE NO. SC L.T. CASE NO. 3D MATTHEW SANGUINE, Petitioner, -vs- THE STATE OF FLORIDA, Respondent.

IN THE SUPREME COURT OF FLORIDA CASE NO.: SC LOWER TRIBUNAL CASE NO.: 4D

IN THE SUPREME COURT OF FLORIDA. Petitioner, Case No. SC JURISDICTIONAL BRIEF OF RESPONDENT

IN THE SUPREME COURT OF FLORIDA

IN THE SUPREME COURT OF FLORIDA. CERTAIN INTERESTED UNDERWRITERS AT LLOYD S LONDON SUBSCRIBING TO Case No. SC CERTIFICATE NUMBER TPCLDP217477,

IN THE SUPREME COURT STATE OF FLORIDA PRO-ART DENTAL LAB, INC. Petitioner, V-STRATEGIC GROUP, LLC. Respondent.

IN THE SUPREME COURT OF FLORIDA CASE NO.: SC

SUPREME COURT OF FLORIDA PETITIONER CRESCENT MIAMI CENTER, LLC S BRIEF ON JURISDICTION

IN THE SUPREME COURT OF FLORIDA CASE NO MANUEL LENA, Petitioner, -vs- THE STATE OF FLORIDA, Respondent. BRIEF OF PETITIONER ON JURISDICTION

IN THE SUPREME COURT OF THE STATE OF FLORIDA. CASE NO. SC (4th DCA Case No. 4D ) RICHARD MUCCIO, Petitioner, vs.

THE SUPREME COURT OF FLORIDA OSCAR MINOSO, M.D. Defendant/Petitioner, vs. AYMAN BOUTROS, M.D. Plaintiff/Respondent. Case Number: SC07-199

IN THE SUPREME COURT OF FLORIDA. v. Case No. SC- IAN MANUEL L.T. No. 2D ON PETITION FOR REVIEW FROM THE SECOND DISTRICT COURT OF APPEAL

IN THE SUPREME COURT OF FLORIDA CASE NUMBER SC Lower Court Case Number 4D

IN THE SUPREME COURT OF FLORIDA. Petitioner, CASE NO. SC JURISDICTIONAL BRIEF OF RESPONDENT

IN THE SUPREME COURT OF FLORIDA

IN THE SUPREME COURT OF FLORIDA

IN THE SUPREME COURT OF THE STATE OF FLORIDA. Supreme Court Case No. SC th DCA Case No. 4D RESPONDENTS BRIEF ON JURISDICTION

IN THE SUPREME COURT OF THE STATE OF FLORIDA CASE NO.: SC LOWER COURT NO.: 4D JACK LIEBMAN. Petitioner. vs.

IN THE SUPREME COURT STATE OF FLORIDA CASE NO. SC PRO-ART DENTAL LAB, INC. Petitioner, V-STRATEGIC GROUP, LLC. Respondent.

IN THE SUPREME COURT OF FLORIDA

SUPREME COURT OF FLORIDA PETITIONER, EMILY HALE S JURISDICTIONAL BRIEF

IN THE SUPREME COURT OF FLORIDA. DAPHNE ELAINE HENSON, Florida Second District Court of Appeal Case Appellee. Number: 2D /

SUPREME COURT OF FLORIDA

IN THE SUPREME COURT OF FLORIDA CASE NUMBER D.C.A. CASE NO RONALD LEE CRAIG, Petitioner, THE STATE OF FLORIDA, Respondent.

IN THE SUPREME COURT OF FLORIDA

SUPREME COURT OF FLORIDA RESPONDENT S JURISDICTIONAL BRIEF

IN THE SUPREME COURT OF FLORIDA CASE NO: LT CASE NO: 3D WALTER WIESENBERG. Petitioner. vs. COSTA CROCIERE S.p.A. Respondent.

THE SUPREME COURT OF FLORIDA. Petitioner, v. Case No. SC RINKER MATERIALS CORP., L.T. No. 3D10-488

IN THE SUPREME COURT STATE OF FLORIDA CASE NO. SC LOWER TRIBUNAL CASE NO. 3D04-95 GROVE ISLE ASSOCIATION, INC., Defendant/Petitioner, vs.

IN THE SUPREME COURT OF FLORIDA S. CT. CASE NO. SC

IN THE SUPREME COURT OF FLORIDA

IN THE SUPREME COURT OF FLORIDA CASE NO. THIRD DCA CASE NO.: 3D Respondent. /

IN THE SUPREME COURT OF FLORIDA. vs. L.T. NO.: 3D ON NOTICE TO INVOKE DISCRETIONARY JURISDICTION FROM THE THIRD DISTRICT COURT OF APPEAL

IN THE SUPREME COURT OF FLORIDA AMENDED JURISDICTIONAL ANSWER BRIEF OF RESPONDENT STATE OF FLORIDA DEPARTMENT OF FINANCIAL SERVICES

AMENDED JURISDICTIONAL BRIEF OF APPELLANT BOB WHITE, SHERIFF OF PASCO COUNTY

Transcription:

SUPREME COURT OF FLORIDA Case No. SC04- L.T. Case No. 3D01-3050 CITY OF MIAMI Petitioner vs. SIDNEY S. WELLMAN, ET AL. Respondents RESPONDENTS ANSWER BRIEF TO PETITIONER S BRIEF ON JURISDICTION ON DISCRETIONARY REVIEW FROM THE THIRD DISTRICT COURT OF APPEAL RONALD S. GURALNICK, Esq. (FL Bar No. 111476) Counsel for Respondents. 550 Brickell Avenue, PH 1 Miami, Florida 33131 Telephone: (305) 373-0066 Facsimile: (305) 373-1387

TABLE OF CONTENTS Page TABLE OF CONTENTS... i TABLE OF AUTHORITIES.... ii I. STATEMENT OF THE CASE AND FACTS...... 1 II. SUMMARY OF ARGUMENT...... 1 III. ARGUMENT...... 2 I. THE DISTRICT COURT DID NOT RELY SOLELY UPON THE RULING OF A DECISION PENDING BEFORE THIS COURT AS CONTROLLING AND THEREFORE THIS COURT DOES NOT HAVE JURISDICTION.. 2 II. THE DECISION OF THE DISTRICT COURT DOES NOT EXPRESSLY OR DIRECTLY CONFLICT WITH A DECISION OF ANOTHER DISTRICT COURT OF APPEAL 3 IV. CONCLUSION...... 5 V. CERTIFICATE OF SERVICE...... 5 VI. CERTIFICATE OF COMPLIANCE..... 6

i

TABLE OF AUTHORITIES Cases: Pages Edwards v. State, 422 So.2d 84 (Fla. 2 nd DCA 1982). 3 Harrison v. Hyster Company, 515 So.2d 1279 (Fla. 1987) 2 Jollie v. State, 405 So.2d 418 (Fla. 1981) 2 Mulligan v. City of Hollywood, 871 So.2d 249 (Fla. 4 th DCA 2003)... 1, 2, 4 City of Miami v. Sidney S. Wellman, et al. and Nadine Theodore, et al., 29 Fla. L. Weekly D328 (Fla. 3d DCA Feb. 4, 2004). 1 Statutes: 932.701-932.707, Fla. Stat. (2000)..... 1 932.704(1), Fla. Stat. (2000)..... 3 ii

STATEMENT OF THE CASE AND FACTS The Third District Court of Appeal held that the City of Miami Vehicle Impoundment Ordinance was preempted by the Florida Contraband Forfeiture Act ("FCFA"). 932.701-932.707, Fla. Stat. (2000). The District Court specifically stated that they were not reaching any constitutional issues. City of Miami v. Sidney S. Wellman, et al. and Nadine Theodore, et al., 29 Fla. L. Weekly D328 (Fla. 3d DCA Feb. 4, 2004). The Third District Court of Appeal did not merely rely upon the decision of the Fourth District Court of Appeal in Mulligan v. City of Hollywood, 871 So.2d 249 (Fla. 4 th DCA 2003), they conducted their own learned independent analysis and likewise came to the conclusion that the Miami Vehicle Impoundment Ordinance was preempted by the Florida Contraband Forfeiture Act ("FCFA"). The Third District merely made reference to the City of Hollywood v. Mulligan case in certain contexts. SUMMARY OF ARGUMENT The District Court conducted their own independent analysis of the Miami Vehicle Impoundment Ordinance and held in a fifteen-page (15) opinion that it was preempted by the Florida Contraband Forfeiture Act ("FCFA"). This is not a so-called piggyback case over which the court has jurisdiction.

There is no express or direct conflict with the decision of another district court on the standard for express preemption. ARGUMENT I. THE DISTRICT COURT DID NOT RELY SOLELY UPON THE RULING OF A DECISION PENDING BEFORE THIS COURT AND THEREFORE THIS COURT DOES NOT HAVE JURISDICTION. The District Court conducted its own learned analysis of the issues and rendered its own fifteen (15) page opinion holding that the City of Miami Vehicle Impoundment Ordinance was preempted by the Florida Contraband Forfeiture Act ("FCFA"). The Court did not merely issue a per curiam opinion relying solely on Mulligan v. City of Hollywood, 871 So.2d 249 (Fla. 4 th DCA 2003). The situation in the case at bar is not as it was in Jollie v. State, 405 So.2d 418 (Fla. 1981), where there was a per curiam opinion that cited as controlling a case that was pending for review in this Court. In the case at bar, the District Court conducted its own analysis, and did not merely rely upon Mulligan v. City of Hollywood, supra., as controlling. Further, it should be noted that this Court has not accepted jurisdiction in Mulligan v. City of Hollywood, supra., it has postponed its decision on jurisdiction, therefore the reasoning of Harrison v. Hyster Company, 515 So.2d 1279 (Fla. 2

1987) applies, which required the acceptance of jurisdiction and review on the merits. Therefore, this is not a so-called piggyback case, as Petitioner calls it, over which the Court has jurisdiction. The Petitioner in its jurisdictional brief argues that if the decisions of the district courts are upheld, the municipalities will lose a useful tool, and be forced to pay many millions of dollars. It is respectfully submitted, that the above argument of Petitioner is not a legal basis upon which this Honorable Court should exercise its discretionary jurisdiction. II. THE DECISION OF THE DISTRICT COURT DOES NOT EXPRESSLY OR DIRECTLY CONFLICT WITH A DECISION OF ANOTHER DISTRICT COURT OF APPEAL. The Petitioner argues that the decision of the Third District Court of Appeal conflicts with a decision of another District Court, to wit: Edwards v. State, 422 So.2d 84 (Fla. 2d DCA 1982). Specifically, they assert that the finding of preemption by the Third District Court of Appeal was based on the language of the Florida Contraband Forfeiture Act, which provides that "[i]t is the policy of this state that law enforcement agencies shall utilize the provisions of the Florida Contraband Forfeiture Act to 3

deter and prevent the continued use of contraband articles for criminal purposes Fla. Stat., 932.704(1). (Emphasis supplied.) Further, Petitioner asserts that the above language conflicts with language in the Edwards case, supra., that uniformity between the Laws of Florida and the Laws of the United States is necessary and desirable for effective drug abuse prevention and control, and it is desirable that the State of Florida exercise more authority over manufacture and distribution of dangerous drugs, and the inconsistencies in penalty provisions of current law demand amendment. (Emphasis supplied.) It is respectfully submitted, that the holding of the Third District Court of Appeal, that there is preemption based in-part upon language in the Florida Contraband Forfeiture Act that law enforcement agencies shall utilize the provisions of the Florida Contraband Forfeiture Act to deter and prevent the continued use of contraband articles for criminal purposes is not in conflict in any way whatsoever with language expressing the desirability of effective drug abuse prevention and control, and the desirability that the State of Florida exercise more authority over manufacture and distribution of dangerous drugs. It is interesting to note, that the only other appellate case in the State of Florida on point is the case of Mulligan v. City of Hollywood, 871 So.2d 249 (Fla. 4 th DCA 2003), that held the City of Hollywood Vehicle Impoundment Ordinance 4

was preempted by the Florida Contraband Forfeiture Act, a holding completely consistent with that of the Third District Court of Appeal in the case at bar. Therefore, there is no conflict upon which to base the exercise of discretionary jurisdiction by this Honorable Court. CONCLUSION Based on the foregoing, it is respectfully submitted, that there is no basis for the exercise of discretionary jurisdiction by this Honorable Court. CERTIFICATE OF SERVICE I HEREBY CERTIFY, that a true and correct copy of the foregoing Respondents Answer Brief was hand-delivered via courier this day of July, 2004, to: Robert S. Glazier, Esquire, 540 Brickell Key Drive, Suite C-1, Miami, Florida 33131, and Warren Bittner, Assistant City Attorney, Office of City Attorney Maria J. Chiaro (Interim), 945 Miami Riverside Center, 444 S.W. 2nd Avenue, Miami, Florida 33130-1910. Respectfully submitted, RONALD S. GURALNICK, P.A. (Counsel for Respondents.) 550 Brickell Avenue, PH 1 Miami, Florida 33131 Telephone: (305) 373-0066 Fax: (305) 373-1387 5

B y : RONALD S. GURALNICK (FL BAR NO. 111476) 6

CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY, that this Respondents Answer Brief has been submitted in Times New Roman 14-point font in compliance with the Florida Rules of Appellate Procedure. Respectfully submitted, RONALD S. GURALNICK, P.A. (Counsel for Respondents.) 550 Brickell Avenue, PH 1 Miami, Florida 33131 Telephone: (305) 373-0066 Fax: (305) 373-1387 By: RONALD S. GURALNICK (FL BAR NO. 111476) 6