riviera beach citizens task force v. city of riviera beach - 11-1501 - order on cross motions for...

7/29/2019 Riviera Beach Citizens Task Force v. City of Riviera Beach - 11-1501 - Order on Cross Motions for Summary Judgm

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IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA

RIVIERA BEACH CITIZENS TASKFORCE, etc., et aL,Plaintiff(s),

vs.CITY OF RIVIERA BEACH, et al.,etc.,

DefendaJlt(s).I

Case No. 502011CA001501 "DIV. AA"

ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENTThis matter carne before the Court on the Plaintiff's Motion for Summary

Judgment and on the Defendants' Motion for Summary Judgment. A hearing was ,conducted on both motions on February 21, 2013. The Court has reviewed thesubmissions of the parties, and has heard the argument of counsel. Upon consideration,the Court makes the following findings.

This case is the latest chapter in a political saga relating to the operation, use andfuture development of the City of Riviera Beach's municipal marina and surroundingproperty. The Plaintiff, Riviera Beach Citizens Task Force (the "Task Force"), is a notfor profit corporation. The Task Force is made up of, and represents, citizens in the Cityof Riviera Beach (the "City") who are opposed to the leasing of public land to privatemarine interests, primarily Rybovich Marine (Rybovich Riviera Beach LLC). Morespecifically, the Task Force seeks to prevent the use of City property for an industrialcommercial boat repair operation.

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To prevent the City from moving forward with plans to allow the use ofmunicipalproperty for commercial boat repairs, the Task Force successfully placed a charterquestion on the ballot for the November 2, 2010 general election. The charter questioncalled for an amendment to Article VII, section 3.5 of the City's charter.

The charter amendment, inter alia, prohibited the use of the municipal marina foranything other than municipal and public uses, and specifically prohibited use ofmunicipal property for an industrial commercial boat repair operation. The charteramendment was approved by the voters in the November 2, 2010 general election

effectively accomplishing the goal of the Task Force.The City, and the Riviera Beach Community Redevelopment Agency, challenged

the charter amendment in circuit court on numerous grounds. See, Riviera BeachCommunity Redevelopment Agency eta/ v. Riviera Beach Citizens Task Force et al, CaseNos. 2010 CA d24434 AH and 2010 CA 024452 AH. The City 's challenge to the charteramendment was unsuccessful leading to an appeal to the Fourth District Court ofAppeal.Ultimately, the Fourth District likewise rejected the City's challenges to the Task Force'scharter amendment. See, City ofRiviera Beach v. Riviera Beach Citizens Task Force, 87So.3d 18 (Fla. 4th DCA 2012).

On January 10, 2011, before the Fourth District decided the appeal in City ofRiviera Beach v. Riviera Beach Citizens Task Force, the City held a closed doorexecutive session to discuss the appeal and to discuss the City's challenge to the charteramendment. JA this action, the Task Force alleges that the actions taken by members ofthe City council at this January 10 meeting violated Florida's Sunshine Law. Thegravamen of the Task Force's allegation is that the City council began a surreptitious plan

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to undo the results of the November 2, 2010 general election by proposing a new charteramendment designed to repeal the charter amendment successfully championed by theTask Force. 1

Of significance to this case, a new citizens group emerged named the Committeefor a Better Riviera Beach (the "CBRB''). The CBRB supported the commercial use ofthe City marina and its goal was to repeal the changes to the City's charter adopted in theNovember 2, 2010 general election. The CBRB successfully placed a new charterquestion on the ;ballot for the municipal election to be held on March 8, 2011.

This charter amendment essentially repealed the charter amendment supported bythe Task Force and previously approved by the electorate in the November 2, 2010general election. For the sake of simplicity, the March 8, 2011 charter amendmentadvanced by the CBRB will be referred to as the "repeal amendment." The repealamendment was approved by a majority of the electorate on March 8 once again clearingthe way for commercial use of the City's marina.

In this case, the Task Force has raised several challenges to the repealamendment. Only one of these challenges has merit and the Court will address the TaskForce's assertiort that the ballot title and summary used in the March 8, 2011 election wasvague and ambiguous. Specifically, the Task Force alleges that the ballot title andsummary failed to comply with the requirements of Section 101.161(1) which requires aclear and unambiguous explanation of the proposed amendment.

1Whether in fact a Sunshine Law violation occurred is not significant to the central issuein this case and the Court need not decide whether such a violation occurred or whethermembers of the City council were engaged in a surreptitious plan.3


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Perhaps ironically, the Fourth District addressed the requirements of Section101.161(1) in its review of the original charter amendment advanced by the Task Forceand challenged by the City. In the City ofRiviera Beach, the Fourth District gave thefollowing synopsis of the law:

ISection 101.161(1), Florida Statutes (2010), requires that "the substance of... [any] ... public measure [submitted to the voters] shall be printed in clear andunambiguous language ... " The ballot language "shall be an explanatorystatement, not exceeding 75 words in length, of the chief purpose of the measure."The purpose of this requirement is to

"advise the voter sufficiently to enable him intelligently to cast his ballot."Askew [ v. Firestone], 421 So.2d [151, ISS (Fla.1982)] (emphasisomitted) (quoting Hill v. Milander, 72 So.2d 796, 798 (Fla.1954)). Whilethe ballot title and summary must state in clear and unambiguous languagethe chief purpose of the measure, they need not explain every detail orramification of the proposed amendment. See Carroll v. Firestone, 497So.2d 1204, 1206 (Fla.l986). The ballot language must, however, give"the voter fair notice of the decision he [or she] must make." Askew, 421So.2d at I 55.F.la. Educ. Ass'n, 48 So.3d at 700.Two questions must be asked in order to determine if the proposedlanguage is defective: first, whether the ballot title and summary fairly inform the

voter of the chief purpose of the public measure, and second, whether thelanguage of the title and summary, as written, misleads the public. Fla. Dep't ofState v. Slough, 992 So.2d 142, 14 7 (Fla.2008).

City ofRiviera Beach id. at 21-22. Applying the standard articulated by the FourthDistrict, the ballot title and summary for the repeal amendment at issue here failed tocomply with Section 101.161(1) and is defective.

The ballot question at issue here reads as follows:CHARTER AMENDMENT QUESTION

Repeal ofNovember 2010 Charter amendment which imposed restrictions on useofCity Marina

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Shall the City ofRiviera Beach's Charter be amended to repeal the changes madeto Article VII, Section 3.5, which were approved at the November 2, 2010General Election.

The City asserts that the ballot summary is clear and advises the voter of the"chiefpurpose" of the amendment. At a superficial level, the City is correct. The ballotsummary reveals that it is intended to repeal changes previously made to Article VII,Section 3.5. However, simply stating that the amendment is to repeal ''the changes"made to Article VII, Section 3.5 of the City's charter does not "advise the votersufficiently to enable him intelligently to cast his ballot" or give ''the voter fair notice ofthe decision he [or she] must make." Id.

Without some explanation of the substance of the changes being repealed there isno way for the voter to determine what he or she is approving or disapproving. While itis true that a ballot summary is not required to explain every detail or ramification of theproposed amendment, a ballot summary must at least convey a modicum of informationrelating to the substantive change being proposed. The ballot summary here fails tomeet this standard and leaves the voter to speculate concerning the substance of 'the

0changes" being repealed.The ballot petition used by the CBRB to place the repeal amendment on the ballot

contained an accurate statement concerning the substance of the amendment beingproposed. The petition specifically stated that the repeal amendment was intended todelete specific language from Article VII, Section 3.5 and went on to recite the specific

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language to be deleted. Had a similar approach been used with the ballot sununary, therequirements of Section 101.161(1) would have been satisfied.2

Based on the foregoing, it is hereby,ORDERED AND ADJUDGED that Plaintiff's Motion for Summary Judgment

is GRANTED, in part, and the Defendants' Motion for Sununary Judgment is DENIED.The City of Riviera Beach is enjoined and restrained from implementing the changes toArticle VII, Section 3.5 of the City's charter approved in the March 8, 2011 election andis restrained from deleting from the charter the amendments to Article VII, Section 3.5approved in the November 2, 2010 general election. Nothing contained herein shall beconstrued as a limitation on the City, or on the electors of the City, to seek a futureamendment of Article VII, Section 3.5.

DONE AND ORDERED in Chambers, at West Palm Beach, Palm BeachCounty, Florida this l_I'ifay ofFebruary, 2013.

Copies furnished to:P" Richard B. Crum ([email protected])

JUDGE GLENN D. KELLEYCIRCUIT COURT JUDGE

P1 Brian Bradshaw Joslyn ([email protected])P" Richard Alan Jarolem ( ~ a r o l e m @ c i k l i n l u b i t z . c o m ) P1 Cynthia Ray ([email protected])P" Andrew Degraffenreidt, Ill ([email protected])P" Dedrick Darnell Straghn ([email protected])

2 The Court does not agree with the City's contention that such an approach wasforeclosed by the 75 word limit contained in Section 101.161(1). An appropriatesununary of the language to be delete, or changes to be made, could have been craftedwithin the 75-word limitation.6

riviera beach citizens task force v. city of riviera beach - 11-1501 - order on cross motions for...

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