IN THE SUPREME COURT OF THE STATE OF FLORIDA CITY OF KEY WEST, vs. Defendant/Petitioner Case No. SC12-898 FLORIDA KEYS COMMUNITY COLLEGE, Plaintiff/Respondent. JURISDICTIONAL BRIEF OF RESPONDENT, FLORIDA KEYS COMMUNITY COLLEGE ON PETITION FOR REVIEW OF A DECISION OF THE DISTRICT COURT OF APPEAL THIRD DISTRICT, STATE OF FLORIDA CASE NO. 3D11-417 Barton W. Smith, Esq. Florida Bar No. 20169 BARTON SMITH, P.L. Attorney for Appellee 624 Whitehead Street Key West, Florida 33040 Telephone: 305-296-7227 Facsimile: 305-296-8448
TABLE OF CONTENTS TABLE OF AUTHORITIES ii-iii PRELIMINARY STATEMENT...1 STATEMENT OF THE CASE AND FACTS....2-3 SUMMARY OF ARGUMENT. 3 ARGUMENT...... 4-10 I. THERE IS NO EXPRESS AND DIRECT CONFLICT WITH A DECISION OF THIS COURT OR ANY COURT ON THE SAME QUESTION OF LAW...4-10 CONCLUSION.......10 CERTIFICATE OF SERVICE....11 CERTIFICATE OF COMPLIANCE...11 i
TABLE OF AUTHORITIES CASES Blockbuster Video, Inc. v. Dep t of Transp., 714 So.2d 1222 (Fla. 2 nd DCA 1998).......7 City of Clearwater v. School Board of Pinellas County, 905 So.2d 1051 (Fla. 2 nd DCA 2005) 1, 3, 4, 5, 8 City of Clearwater v. School Board of Pinellas County, 17 So.3d 1287 (Fla. 2 nd DCA 2009).. 1, 8 City of Gainesville v. State Dep t of Transp., 778 So.2d 519 (Fla. 1 st DCA 2001)...1, 3, 4, 5, 8 City of Gainesville v. State, 863 So.2d 138 (Fla. 2003). 1, 3, 4, 6, 7, 8 City of Gainesville v. State Dep t of Transp., 920 So.2d 53, (Fla. 1 st DCA 2005) review denied 935 So.2d 1219 (Fla. 2006)...1, 3, 7, 8 City of Key West v. Florida Keys Community College, 81 So.3d 494 (Fla. 3 rd DCA 2012).1, 6 Jenkins v. State, 385 So.2d 1356 (Fla. 1980)... 4 Reaves v. State, 485 So.2d 829 (Fla. 1986). 4, 9 Seaside Prop., Inc. v. State Rd. Dep t, 121 So.2d 204 (Fla. 3 rd DCA 1960).......7 Spangler v. Fla. State Tpk. Auth., 106 So.2d 421 (Fla. 1958).....7 ii
STATUTES City of Key West Ordinance No. 01-06 2 235.34, Fla. Stat.. 5, 6 253.26, Fla. Stat...5, 6 403.0891, Fla. Stat......2 403.0893, Fla. Stat..2 Rule 9.120, Fla. R. App. P...9 iii
PRELIMINARY STATEMENT The CITY OF KEY WEST, Defendant/Appellant below, and Petitioner here will be referred to as the City. FLORIDA KEYS COMMUNITY COLLEGE, Plaintiff/Appellee below and Respondent here, will be referred to as the College. Citations to the City s Jurisdictional Brief will be in the form of (JB.) followed by the appropriate page number(s). The decision of the lower tribunal is currently reported as City of Key West v. Florida Keys Community College, 81 So.3d 494 (Fla. 3d DCA 2012). The three reported cases between the City of Gainesville and the Florida Department of Transportation over stormwater fees will be referred to as follows: City of Gainesville v. State Dep t of Transp., 778 So.2d 519 (Fla. 1 st DCA 2001) Gainesville 1 ; City of Gainesville v. State, 863 So.2d 519 (Fla. 2003) Gainesville 2, and City of Gainesville v. State Dep t of Transp. 920 So.2d 53, (Fla. 1 st DCA 2005) review denied 935 So.2d 1219 (Fla. 2006) Gainesville 3. The two reported cases between the City of Clearwater and the School Board of Pinellas County over stormwater fees will be referred to as follows: City of Clearwater v. School Board of Pinellas County, 905 So.2d 1051 (Fla. 2 nd DCA 2005) Clearwater 1, and City of Clearwater v. School Board of Pinellas County, 17 So.3d 1287 (Fla. 2 nd DCA 2009) Clearwater 2. 1
STATEMENT OF THE CASE AND FACTS In 2001, pursuant to 403.0891 and 403.0893, Florida Statutes, the City enacted Ordinance No. 01-06, creating a stormwater utility system, and establishing stormwater utility fees to fund the system. The stormwater utility fees apply to all developed property throughout the City s municipal area, including North Stock Island, where the College s main campus is located. The City has no operational stormwater system on the College s property, and has not identified any of the City s facilities that collect or treat stormwater generated by the College s property. The College, which is organized and operated under Florida law, collects and treats any stormwater generated on its property with its own stormwater system, operated under a valid permit issued by the South Florida Water Management District. There is no written contract or agreement between the City and the College obligating the College to pay the City s stormwater utility fee. Nonetheless, after establishing the stormwater utility, the City billed the College for stormwater utility services. The College paid under protest to the City $160,529.60 in stormwater utility fees because the City threatened enforcement penalties, including litigation, the imposition of attorney s fees for collection, a five percent late fee, liens, and the denial of City permits. The College filed the action below seeking, among other things, a declaration that 2
the College enjoys sovereign immunity with respect to the City s stormwater utility fee, and the refund of the fees paid under protest. SUMMARY OF ARGUMENT The City has failed to establish the requisite decisional conflict between the opinion of the Third District in the instant case, and the opinion of the Court in Gainesville 2 or any other opinion of this Court or any other Court. The Third District s decision in this case is consistent with all three Gainesville cases and both Clearwater cases, including Gainesville 3, a case the City fails to recognize as consistent with all prior cases dealing with stormwater fees. Gainesville 3 held State entities enjoy sovereign immunity from the stormwater user fee at issue in this case. The City of Gainesville previously petitioned this Court for discretionary review based on decisional conflict of Gainesville 3 with Gainesville 1 and Gainesville 2, which this Court denied jurisdiction. Furthermore, the question posed and answered by the Second District in Clearwater 1 was the same question posed and answered in Gainesville 1 and, consequently, there is no conflict between any of the opinions cited by the City. Therefore, not only is there no conflict upon which this Court s jurisdiction can be invoked, but the argument of the City has been previously made to this Court, and this Court chose to not invoke its discretional jurisdiction. 3
ARGUMENT THERE IS NO EXPRESS AND DIRECT CONFLICT WITH A DECISION OF THIS COURT OR ANY COURT ON THE SAME QUESTION OF LAW Florida Rule of Appellate Procedure 9.030(a)(2)(A)(iv), provides that this Court has discretionary jurisdiction to review decisions of district courts of appeal that: expressly and directly conflict with a decision of another district court of appeal or of the supreme court on the same question of law. As held by this Court in Reaves v. State: Conflict between decisions must be express and direct, i.e., it must appear within the four corners of the majority decision. See Reaves v. State, 485 So.2d 829, 830 n.3 (Fla. 1986), citing Jenkins v. State, 385 So.2d 1356 (Fla. 1980). There is no express and direct conflict between the opinion in this case and the First District s opinion in Gainesville 1, this Court s opinion in Gainesville 2, or the Second District s opinion in Clearwater 1. The cases answer different questions of law. In Gainesville 1, the trial court held the stormwater fee at issue to be a special assessment and dismissed the City of Gainesville s case against the Florida Department of Transportation ( FDOT ). Id. On appeal, the threshold question 4
was whether Florida law allows a city to collect a utility fee for stormwater management, which the Appellate Court answered in the affirmative. Id. at 522 523. However, the Gainesville 1 court held that a determination of the issue of FDOT s sovereign immunity will depend on whether the City can allege the existence of a written contract. Id. at 531. Because the trial court had not found whether a written agreement for payment existed, the appellate court remanded for further proceedings on that issue. Id. at 530 531. Gainesville 1 did not address sovereign immunity, but indicated it may be applicable, which the First District later found in Gainesville 3 that sovereign immunity did apply. Again, in Clearwater 1, the issue was whether the stormwater fee charged was an assessment or user fee. See City of Clearwater v. School Board of Pinellas County, 905 So.2d at 1053. In Clearwater 1, the City enacted a stormwater user fee that was billed to all developed property in the City of Clearwater. Id. The School Board of Pinellas County ( School Board ) asserted the stormwater user fee was a special assessment which the School Board was exempt from payment pursuant to 253.26 and 235.34, Florida Statutes. Id. Clearwater 1 does not discuss or address sovereign immunity, but rather an exemption based on Florida Statute. Id. The Second District Court found in Clearwater 1 that the stormwater user fee was valid user fee, and found that the School Board was not exempt from 5
a stormwater user fee pursuant to 253.26 and 235.34, Florida Statutes. Id. at 1056. The Second District did not address immunity in the context of the sovereign state, but rather the sole issue was whether the fee charged the School Board was a user fee or assessment because if it was an assessment the School Board was exempt. Id. at 1056. Here, just as in its argument to the lower court, the City has again confused exemption with immunity, which in this case the Third District had to explain that sovereign immunity is considered the rule and that it must be expressly waived, whereas an exemption is the exception to the rule that must be expressly granted. See City of Key West v. Florida Keys Community College, 81 So.3d 494, 497-498 (Fla. 3d DCA 2012). In Gainesville 2, the only question presented was whether the financial arrangement upon which the City s proposed bond issue was secured was legal which this Court answered in the affirmative. Gainesville 2, 863 So.2d at 148. As to whether the State enjoyed sovereign immunity, this Court, in Gainesville 2, specifically stated that whether sovereign immunity applied was not proper in a bond validation proceeding and could be raised in another forum. Gainesville 2, 863 So.2d at 148. This Court did not address whether the fee could be charged to a property owner who did not receive service from City facilities or that paid under protest such as the facts stated in the instant case. Rather, Gainesville 2 only 6
considered whether the Gainesville ordinance establishing the user fee was valid and legal and could thereby by used to secure financing for the City s stormwater utility system. Here, the City incorrectly asserts that Gainesville 2 concluded that the City can collect stormwater user fees from State entities. (JB. 7). This Court explicitly declined to address the FDOT s immunity from payment in Gainesville 2, and, thus, the City s conclusion that the City can collect stormwater user fees from State entities cannot be read into this Court s holding. 1 After Gainesville 2, FDOT asserted sovereign immunity in the trial court and argued that absent a written contract between it and the City of Gainesville, FDOT could not be compelled to pay the stormwater fee because the state enjoys sovereign immunity. See Gainesville 3, 920 So.2d at 54, review denied 935 So.2d 1219 (Fla. 2006). The trial court agreed and dismissed the City of Gainesville s case. Id. The First District affirmed the trial court. Id. In so ruling, the appellate court relied upon long-established precedent holding that statutes purporting to waive sovereign immunity are strictly construed in favor of the State, and must be clear and unequivocal. Id. (citing Spangler v. Fla. State Tpk. Auth., 106 So.2d 421, 424 (Fla. 1958); Div. of Admin. v. Oliff, 350 So.2d 484 (Fla. 1 st DCA 1977); 1 This Court stated that DOT raises two issues on cross appeal: whether sovereign immunity bars the City from collecting stormwater fees from DOT Such issues are beyond the scope of a bond validation proceeding and therefore we do not address them. Gainesville 2, 863 So.2d at 148. 7
Seaside Prop., Inc. v. State Rd. Dep t, 121 So.2d 204 (Fla. 3d DCA 1960); Blockbuster Video, Inc. v. Dep t of Transp., 714 So.2d 1222 (Fla. 2d DCA 1998)). Thus, Gainesville 3 established the principle that a City may not exact a stormwater fee from a state entity absent a written contract with that entity. Id. After Gainesville 3, the City of Gainesville petitioned for certification to this Court based on alleged direct conflict between Gainesville 3 on the one hand and Gainesville 1 and Gainesville 2 on the other. This Court denied review in Gainesville 3. See City of Gainesville v. State Dep t of Transp. 920 So.2d 53, (Fla. 1 st DCA 2005) review denied 935 So.2d 1219 (Fla. 2006). Consequently, the Third District s opinion does not directly conflict with Gainesville 1, Gainesville 2, and is consistent with Gainesville 3. After the Second District issued its opinion in Clearwater 1, the School Board of Pinellas County asserted sovereign immunity as well and the Second District found the holding in Gainesville 3 dispositive in Clearwater 2. 2 In the instant case, the College did not dispute, for purposes of its motion for summary judgment, that the stormwater user fee was a valid user fee. The threshold question in all the cases with which the City is claiming conflict was 2 As the City explains, the Second District ordered the refund of fees to the School Board. (JB. 6). However, the City incorrectly asserts that the opinion was a per curiam affirmance which has no precedential affect. The Clearwater 2 opinion was not a PCA opinion which would have no precedential value, but rather was a per curiam opinion that adopted the holding of Gainesville 3. See City of Clearwater v. School Board of Pinellas County, 17 So.3d at 1288. 8
whether the stormwater user fee was an illegal tax or assessment, and not a user fee. Here, the question was whether the College enjoyed sovereign immunity from the stormwater user fee, which is not the same issue discussed in Gainesville 1, Gainesville 2 or Clearwater 1. Therefore, the Third District s opinion is not in conflict with the decisions cited by the City. The Third District s opinion is consistent with the First District and Second District s opinion regarding the state s entitlement to sovereign immunity from the stormwater user fee. Finally, in seeking review under this Court s discretionary conflict jurisdiction, this Court has long held that [t]he only facts relevant to our decision to accept or reject such petitions [based on alleged decisional conflict] are those facts contained within the four corners of the decisions allegedly in conflict... we are not permitted to base our conflict jurisdiction on a review of the record Reaves v. State, 485 So.2d 829, 830 n.3 (Fla. 1986)(emphasis added). In the instant case, the City has submitted and dedicated its final three and one half pages of its Argument and a portion of the Statement of the Case and of the Facts to facts that are outside the Third District s opinion at issue. (JB. 2, 7 10). The arguments made by the City on pages 7 10 of its jurisdictional brief are rehashed arguments from the City s initial and reply briefs filed with the Third District and are not part of the Third District s opinion. Rule 9.120, Fla. R. App. P., provides that a petitioner s brief is limited solely to the issue of the Supreme 9
Court s jurisdiction. These facts and arguments contained within the final three and one half pages of its Argument and the portion of the Statement of the Case and of the Facts are outside of the issue of the Supreme Court s jurisdiction, and, thus, are wholly impermissible and should be stricken from consideration. CONCLUSION WHEREFORE, Respondent, Florida Keys Community College, respectfully requests this Honorable Court decline to accept jurisdiction because decisional conflict has not been established. 10
CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copies of the foregoing were served via U.S. Mail upon (1) Michael T. Burke, Esq., JOHNSON, ANSELMO, MURDOCH, BURKE, PIPER & HOCHMAN, P.A., 2455 East Sunrise Boulevard, Suite 1000, Fort Lauderdale, Florida 33304, Counsel for the Appellant, CITY OF KEY WEST; and (2) Shawn Smith, Esq., City Attorney, 525 Angela Street, Key West, Florida 33040, Co-Counsel for the Appellant, CITY OF KEY WEST, on May 8, 2012. BARTON SMITH, P.L. 624 Whitehead Street Key West, Florida 33040 Telephone 305-296-7227 Facsimile 305-296-8448 Attorney for Appellee /s/ Barton W. Smith, Esq. Barton W. Smith, Esq. Florida Bar No. 0020169 bart@bartonsmithpl.com CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that this brief complies with the font requirements of rule 9.210(a)(2) of the Florida Rules of Appellate Procedure. /s/ Barton W. Smith, Esq. Barton W. Smith, Esq. 11