Constitutional Law - Florida

Front 1

Limitations on Powers

Back 1

FL constitution limits powers (instead of enumerating powers)

This is in the 10 Amendment of the state constitution.

Front 2

Allocation of Power

Back 2

Specific language in the state constitution can:
a. Act as a limitation of the state’s power by allocating the authority to a particular branch of the government.
b. Reaffirm existing authority.

Front 3

Separation of Powers

Back 3

Article II, section 3:
The powers of state government are divided between the legislative, executive, and judicial branches

FL constitution expressly separates powers (unlike federal)

Front 4

Encroachment

Back 4

One branch of government cannot encroach another branch's obligations and duties

**Look to see if multiple branches are "mucking around together":
1. state the issue - encroachment on separation of powers
2. state rule - unlike federal constitution, FL expressly incorporates separation of powers in the state constitution
3. analysis - state whether it is obvious or not - what can the branch at issue do; what it is actually doing; whether that is another branch's role
4. conclude - therefore, it is or is not encroaching

Front 5

Legislative Sessions

Back 5

1. Regular Sessions

2. Gubernatorial Special Sessions (emergency or crises)
--Must be declared by a proclamation
--Can last no more than 20 days
--Usually focus on a specific issue

Front 6

Presentation of Bill

Back 6

1. Every bill passed by the legislation must be presented to the Governor for his approval and signature

2. A bill becomes a law if:
--The Governor signs the bill
--The Governor does not veto the bill within 7 days of presentment.

Front 7

Bill Requirements (Formalities)

Back 7

1. Law cannot be vague: the average person of common intelligence must be able to understand what is permitted or prohibited.

2. Law cannot be overbroad: “all,” “anything,” etc.

3. Needs a title, which must notify a reader of its subject matter.

4. Must have an Enacting Clause: “Be it enacted in the state of Florida.”

5. Must be reasonably related to the public welfare.

6. Must comply with the single subject rule.

Front 8

Types of laws

Back 8

Three types:
1. Special law;
2. General law; and
3. General law of local application.

Front 9

Special law

Back 9

Applies to a certain group or geographic area.

Must be passed with notice and a vote from the affected people.

Front 10

General law

Back 10

Applies uniformly throughout the state.

No vote necessary to pass.

Front 11

General law of local population
(Population Act)

Back 11

**look for a population #

Applies specifically to areas or counties with specific population.

Front 12

Levels of Courts

Back 12

1. Supreme Court
2. District Courts of Appeal
3. Circuit Courts
4. County Courts

Front 13

Counties

Back 13

Have the Home Rule Power

Two types:
1. chartered
2. non-chartered

Front 14

Home Rule Power

Back 14

Enables county government to create law through ordinances, and in some cases resolutions, without having to return to the legislature to get a grant of authority.

Front 15

Chartered Counties

Back 15

More official.

Have more power.

Can pretty much do whatever they want so long as it does not conflict with general or special law

Front 16

Non-chartered Counties

Back 16

Less official.

Can only do things that are actually allowed by a general or special law

Front 17

Municipalities

Back 17

1. Municipalities are incorporated areas (e.g., towns, cities, village, etc.)

2. Municipalities may be created or abolished and their charters amended pursuant to general and special law.

3. Municipalities have their own Home Rule Power.

Front 18

Conflicts

(Local Government)

Back 18

County vs. Municipal:

1. if non-chartered county - municipality wins

2. if chartered county - has supremacy clause which will say who wins (only if re: regulation of services)

3. if chartered county re: regulatory subject matter--chartered county wins

Front 19

Preemption

Back 19

State vs. County:

Legislature has limited ability to preempt local government police power

State wins

Front 20

Taxation (general)

Back 20

There is neither income not estate tax in Florida.

Laws give the state the power to tax

The state has broad taxing power.

Local taxes should be at a uniform rate.

Front 21

Ad velorum

Back 21

On real property and tangible personal property.

Ad valorem taxes may be levied by the local government only.

Front 22

What type things can be taxed? (2)

Back 22

1. ad velorum - personal and tangible personal property
--local only

2. intangible property (stocks, bonds, etc.)
--state only

Front 23

Tax Exemptions (general)

Back 23

1. state
2. homestead

Front 24

Tax Exemption (State)

Back 24

Generally, the state cannot be taxed.

Property owned by a government entity and that is exclusively for public purposes cannot be taxed.

BUT this exemption does not apply to property owned by a city but leased to private company that is using it for profit—this can be taxed.

Front 25

Tax Exemption - Homestead Exemption

Back 25

A homestead is one’s primary residence.

For tax purposes, the property taxes (ad valorem) now get two exemptions.

1) Up to $25,000 is exempt from taxation except for assessments for special benefits. ($25,000 is subtracted from the value of the property before the mileage formula is applied.)

2) Effective January 1, 2008, there is an additional $25,000 exemption on non-school taxes for valuation between $50,000 and $75,000.

Front 26

Portability

(Homestead)

Back 26

If you have a homestead and you buy a new house, the deal is that it allows you to take the value of property taxes on property A and bring that value to your new house (in order to continue paying a lower property tax rate). There are time requirements.

Front 27

Homestead Requirements

Back 27

1. The owner must establish that he has ownership.

2. Timeline: Must make sure you establish ownership before anyone can make a claim against you.

3. Acreage Requirement

Front 28

Acreage Requirement

(Homestead)

Back 28

a) If located outside the municipality, a homestead is 160 acres or less of contiguous land and the improvements on the land.

b) If located in a municipality or incorporated area, a homestead is one-half acre or less of contiguous land and the improvements on the land.

Front 29

Creditor Exceptions

(Homestead)

Back 29

a. For the payment of taxes and assessments on the house (e.g., property taxes)

b. The obligations arising out of the purchase of the house (i.e., the mortgage)

c. Any work that occurs on the property (e.g. build a swimming pool—contractors can get at your property to receive payment).

Front 30

Surviving Spouse Rights

(Homestead)

Back 30

The exemptions on forced sale and encumbrance also run to the benefit of the surviving spouse and heirs of the owner.

1. A homestead cannot be devised if there is a surviving spouse and a minor child.

2. In this case, a life estate is created in the surviving spouse, with the minor child taking a vested remainder interest.

**If tenancy by entirety (married), cannot devise without spouse's consent

Front 31

Termination of Homestead

Back 31

1. Transfer:
If validly transfer, can be to anyone.
(if own with spouse, must have spousal approval_

2. Abandon

Front 32

Abandoning Homestead

Back 32

a. Permanently given up possession of the homestead;

b. Expressing an intention to no longer utilize the property as a homestead; and

c. No intent to return within a reasonable time.

Front 33

Transfer Homestead

Back 33

The owner of a homestead may transfer ownership of the homestead by:
a. Mortgage
b. Sale
c. Gift

Front 34

Core Miscellaneous Provisions

Back 34

1. Equal protection
2. Due Process
3. Religion – FEC and EC
4. Speech

Front 35

Equal Protection

Back 35

No person can be deprived of any right due to:
a. Race
b. Religion
c. National origin
d. Physical disability

Front 36

Freedom of Religion

Back 36

No law may:
a. Prohibit or penalize the free exercise of religion; or
b. Establish a particular religion [Lemon Test]

Exception: the practice of religion may not break the law or violate the public morals or peace in the name of religion.

Front 37

Freedom of Speech

Back 37

Defamation: truth is the absolute defense

Front 38

Due Process and the Right to Work

Back 38

The right of a person to work cannot be denied or restricted due to membership in any labor union or organization.

Apply strict scrutiny

Front 39

Access to Courts

Back 39

1. The government cannot do anything that would deny one’s right to get into court to get redress from injury.

2. If the legislature restricts access to the court system, it must
a) provide a reasonable alternative; or
b) show there is no other way to accomplish an overwhelming public need.

Front 40

Search & Seizure

Back 40

Search: infringing on right to expectation of privacy

Front 41

Right to Trial by Jury

Back 41

The right to trial by jury is guaranteed to all and must remain inviolate.

Front 42

Right to Privacy

Back 42

Fundamental right—government has to refrain from intruding—cannot pass a law which would infringe on a private right.
Apply strict scrutiny—compelling interest.

Front 43

Sunshine Law

Back 43

"out in the open"

All meetings of a state or local government public body that conduct official business must be open to the public and the public must be given notice.

Front 44

Eminent Domain

Back 44

No private property may be taken by the state except:
a. If for public purpose
b. If necessary to do it
c. Pay full compensation

Public purpose can be for projects that are owned by private individuals or developers (the developments go to jobs, tax dollars, stimulus for the economy (e.g., shopping malls, real estate developments)