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HomeMy WebLinkAboutItem #61 - Discussion Item- ,_ - , ~ ; 3 ~ '' . ;' ~ LITY ~~ VVIIAMI, ~L(~I~iDA ,~. { ~~.";; . `~~.; : . / J~ h~rv L "J it "' tO : C1~~$~` ~. Odic bArE :•• Aagust Z61 1991 f=iL~ : ~.. ~it~r fi3~n~C,~e~ .:. suaiECt : Comt~-ission Mei3tiri~ ~~ . September 11, X991. . X~~i~~ rr+ 5uarex, ~~ REFERENCES : FpONi . ~IB~I~r , ENCLOSURES : ` 1 ) Please 'place Robert D. Klausner, Esq., representative of the Fratiernal Order of Police (Ff7P) Miami Lodge 20, on the next City Commission-Agenda of September 11, 1991, to discuss monetary relief for Martin`Garca and Alberto Pumariega. XLS/lr ! -~ _. -. , ~ cc: Jorge Fernandez, ,Esq. 'City Attorney ~ Al•Cotera, FOP•President Robert D`. K3ausner,;Esq. - -# .Vice Mayor J._ L. -Plummer, Jr. _. , Commissioner Miriam Alonso { Commissioner. MillerDawkins ~ :,Commissioner Victor DeYurre .,, f i _. - ~ - - ; _~ j -: -~ _ _? =1 .-~. • -. : ~ _ ~ .. ,. , .. ~. y~r~ r ~r ~ ~ 4 ..M ~ 1 i~~ y ~ ~; . ,.- ~ i ~ ~ -` connection with his employment and the public employer hay failed tt~ pr+~vide an attorney, as the City failed to da in this case; the City shhll rei~burse the employees for reasonable casts and attorney ~ s f'eeg . Subht$ntial funds were extended on behalf of Garcia and Pum~rieri~ and they are entitled to reimbursement. phis is particularly' sip, in light of the feat that the illegality of the subpoena power cif the Yndependent ltar~iew Panel was made well--known prior to the filing of any litic~atian and the matter could have been easily resolved without the expenditure of tens of thousands. of dollars fn atto~neyss fees. Since this city Board chose, ,however,-ta. .proceed ahead with litigation in the Circuit Court, the Court of, Appeals, and the Supreme Court, the City is now obligated to phi for the costs expended in their defense. Please have this matter placed on the agenda of the. City Commission.. Please also advise what proofs of expenditure you require to accomplish the prompt rein went of these monies._ Ve t , BERT D. K US R RDK:mIn cc: Al Cotera, FOP President a a _ ~_ s S s ~; _ ~; ~` .. K .. _i ~~ ~. -~ ~ ... ~~ i ~. .. ~' ~ ~~ sj ai aS ~i ~ i .~. ' ~~. ~41 ~ f~~~ r . . . =j _~. aS ____ _ statement that Miles would be paid, Upon Mcbevitt's refusal to the re• quested information in January nd May of 1985, Miles argues a breach occurred and the statute time began to run. Miles ar• sues, altgrnatively, that the statute did not begin to run until they discovered, in late 198? or early 1988, that the work for which McDevitt had backcharged them was not work which Miles had contracted to do in the first~~place. • Because there is a genuine issue of mate- rial fact regarding exactly -when the slat= ute time began to run, it was error far the trial court to grant final summary judg• rnent based on the fact that any statute of limitations had run. See Dtis Elevator Co. v. R'mployers Insurance of Watesau, 526 So,2d 727 (1?la. 3d DCA), review denied, .536 So.2d 244 (FIa.1988); l•Vaters v. Nu- Car Carriers, Inc., li00 So.2d 224 (Fla. 1st DCA 1986). Because of our disposition of the case on the issue set forth above, we do not reach the question of which statute of limitation is applicable here. If the jury believes Miles' arguments on when the time began to run, Miles would have timely filed its complaint under either statute in question. [2~ Upon motion by McDevitt, the trial court also dismissed Miles' claims for civil theft. The dispute in this case is over an amount of money owed under a contract. The amount is unknown by the parties and there is not an identifiable account or piece of property from which the money is to be paid. Cf. Auerbach v. McKinney, 549 So.2d 1022 (Fla. 3d DCA 1989) (attorney's appropriation of client's $2,500,000.00 set- Clement award constitutes a theft of client's property). Under these circum- stances,.the trial court was correct in dis- missing the civil theft counts under the authority of Futch v. Head, bll So.2d 314 (Fla. 1st DCA), review denied, 518 So.2d .1275. (F1a:1987) and Rosen v. Marlin, 486 So.2d 623 (Fla. 3d DCA), review denied, 494 So.2d 1151 (F1a.1986). .Miles' reliance on Warren a Monahan Beaches Jewelry Center, 548 So.2d 870 (Fla. 1st DCA 1989), is misplaced. In War- ren, there was no contract like the one in this ease. tVai~en involved onsamet relationship and deceptive an ; it ttt~da practices. F4ct¢h and Rosen m e it Clear that in contract cases like the one here, a count for civil theft will not lie. Accardingly, the order of final summary judgment is reversed and the order dismis~~ ins the civil theft counts is affirmed. Reversed in part, affirmed in part. DANAHY and THRIJAbGILL, JJ., concur. w O ~klY NUNlIA SYSf[N Richard M. BARRY, individually, and u Chairman of the AD HOC Independent Review Panel of the Ctty of Miami, Elmira Brown, Lt. Franklin E, Chrlet• mss, Officer Jorge F. Coladas, Leroy Colyer, Sgt. Alphonso Erving, Annie Gooden, Officer Herma V. Justice,, Dewey W, Knight, Officer David A.; Magnusson, and Rev. Willie Starks, Ap•' pellants, ; v. Martin GARCIA, individually, and ai President of Hispanic Officers Associa•~ lion, Albert Pamareiga, a Police Officer. with the City of Miami, Appellees. ,~ .~ No. 89-1784. j~ District Court of .Appeal of Florida, ; Third District. , i,~. Jan. 15, 1991. ! ~1 :', Chairman and members of independent: ', investigatory body created by city commis- sion appealed from an order of the Circuit ; Court for Dade County, Robert P. Kaye, J.,'` which discharged order to show cause andl dismissed petition to hold in contempt indi• `~~ viduals subpoenaed by investigatory body,~.~; The District Court of Appeal, Barkdull, J.,. held that city commission had no suthoritys:'j ' ~- scant aubpbrlna ~powe . lnvestigatory belly t:o>tigist officials, • Affirmed. 1~ Municipal Corporetio~ City commission had ?`: grant subpoena power tc .. ~eatigatory body.. conaisti '. officials, .: ~`1 ~. Municipal i/orpertttio; ,, . Whets municipal char 's~• grants use of subpoena °f: gibes, if any,' its mann '' .'~ ipecific delegation ' anti :;' ' means available ` by gone r•~ • to exclusion of any genera . ' r authority. ~~: ,gr• . • . a: Municipal Corporatio. ~. • • ! • Local governments n as, • ttioae powers granted 'ii ' those necessarily or fail ~a'iacident' to powers expr~ ,`s those essential to declarei Y' ~oses of municipal corpo~ '' .' is Witnesses e~21 ~~. Ultimately' disobeyin; ~~ fully issued car. result in i• `appropriate judicial forum =~'etimpliance, may result it being subject to incarcer. `''~7:.. ~~.Admintstrative Law ~,i~~~~ , 4464 1"?~;,; Regardless of wheth ea to court for subpoe ~'~~' on its own authority ~~ ~ for order if it wishc "`a against recalcitran fjb~Iunfcipal Corporatia !Even if city commies p:.: ,:t~ delegate power of aubi tt.attiafficials, such delegat 'tinlred to be accomplished , ~aict iJh From;. August 1968 , throu eat least hirteen sag! . ihu-ces 9nvolving violent co! ~'~bLcks qnd whites in Dade flcant percentage oF;w) police officers..In the d ;~~ { 9~4' Fia. 6~3 SOt1~' lttiiLlp ____ (lttt"p1~`l~ 9d Sll>l{t~r~ • purported to grant subpoena power the At the hearing the respondents argued siib~oetla power', bunt investigative panel "to the extent perlll#tted that the eletrlents tyf conte>pt had not been tion meats both the -~ ' ' by law ..." Subsequently, the Ad Hoc established as a matter of law; that genet- was not express and Independent Review Panel issued subpoe• al administrative investigatory subpoenas Constitution, either ~ nas to IVlartin Garcia, President of the His• were disapproved in the law; that the City or county oltarter. panic Officers Association of the City of Commission's attempt to delegate subpoe- Qid~rian, 4d0 So,~d of Wtnte~r Park v. M, 14[ia~tni and Albert Pamareiga, a City of na power to the Independent Review panel 6th-bCA), ~tri (Fla h~[ihtt-i polico.officer, directing them to ap- was unlawful; that the city charter, as . 118 (F1a,19g4). We dear before it and give testimony pertinent amended, expressly authorized only the Section 8(e), VIM tb the tsauses of the civil disturbances in City Commission and the Civil Service , (1968), rlptjcifically e Cvertorvn. $oth Garcia and parrnareiga $oard to issue investigatory subpoenas; and all municipalities refu$ed to testify and did not appear at the that creation of the Independent Review visions of Article VI scheduled place and time. Panel via resolution was •an insufficient cisely ststkd: "as i1 Thereafter, the Ad Hoc Independent Re- that the sub oena owes legislative act; P P been adopted",= M view Panel filed a petition requesting the violated the collective bargaining agree- . County are controller court to, (1) require the respondents to meet between the City of Miami and the Section Article VIII should not be ad- show cause why they Fraternal Order of Police; and that the , stitution of 1886, as . judged guilty of and punished for contempt Independent Review Panel lacked standing the provisions of tht as a consequence of disregarding the sub- to bring this case. such time ~s .the " poems, and (2) adjudicate the respondents In response the Petitioners argued that charter or home rule guilty of contempt, but give them an oppor- the subpoena power was lawfully delegated ticle VIII of the C- tunity to purge themselves of contempt by to the Ad Hoc Independent Review Panel in This event has not oc appearing before the Ad Hoc Independent accordance with provisions of the Florida tive date of the 196 Review Panel and rendering testimony in Constitution, the Municipal Home Rule The Home Rule accordance with the subpoenas. The trial powers Act (Ch. 166, FIa.Stat.), and the proved by the voters court issued an order to show cause and Miami City Charter, Section 8(y). 1966. On May bet found, tnter ails, "[t]hat by Resolution 89-84 of the City Commission of the City of [1] After review of the record, hearing , Rule Charter provid Miami, the Ad Hoc Independent Review argument of counsel, and consideration of meet was approved nty and t Dade Co Panel was given subpoena powers to con- duct an investigation for, and on behalf of the cited authorities, the trial court entered an order discharging the order to show u days: thereafter.. T~ ~~ the City Commission. cause and dismissin the etition for con- g P meet granted coup. er local affairs wi o The respondents then filed a response to tempt, with prejudice. In so ruling, the court found that as a matter of law, the Ad v it required lade Cot the. order. to show cause and moved the did not Hoc Independent Review Panel od whereby the . mur trial court to transferahe cause to another . have the authority to issue subpoenas and the power to make, division of the circuit court, where there ~ compel attendance of witnesses to its nicipal charters.. Th was a case pending that sought a declara- tion that Resolution 89-8A was invalid, to Proceedings. 2. Section i66.021(3)(c ': the extent it granted subpoena .power to The appellants and the amicus curiae reads as follows: '"I that pursuant to the 1 the Ad Hoc Independent Review Panel .point to Article VIII, Section 2 of the Flor- § 2(b), Art. VIIT of t E An -order was entered transferring the ids Constitution (1968), and Section 166: legislative body of e _ cause to the requested division of the cir- 021(1), (4), Florida Statutes (1987), as giv- power to enact legisl. . cult court and a hearing was held on the ing the city the power to enact the resolu- ject matter upon whir except: Any subj~ act contempt petition. tion in question and make the delegation of . pursuant to a county ~ - cover-up. The McDuffie riots resulted in eigh- caused by the fatal shooting of a motorcycle authority of art; VI1I, ` eonatitution." state ! teen deaths and eighty million dollars in proper- ty damage. The second civil disturbance was. rider, Clement Anthony Lloyd by officer Wil• liam Lozano, that also resulted in the death of . ,. Section`' 6(e), Article 1 sparked by the fatal shooting of Nevell Johnson, Jr. by officer Luis Alvarez, in an Overtown vid- Allan Blanchard, a passenger on the motorcycle. This court takes judicial notice of the foregoing ' tion; reads as follow: HOME RULE. , Arttc ! ep arcade in December 1982, and again. in after Alvarez- was acquitted. The March 1984 pursuant to Section 90.202(12), Florida Evi• deuce Code, (1990), since they are facts not and 24,-of the Condit shall: remain in full i ' ^ , 'third ins-ance, and the one precipitating the creation of the investigatory panel .under re- subject to .dispute because they are capable of accurate and ready determination by resort to i county affected, a: adopted, until that cc ~ view, occurred on January 21, 1989, and was sources whose accuracy cannot be questioned. a charier or home t r it ~ , iii BARRY v. GARCIA Fla. 936 the reBpondents sr ued Cllers8'13 So.2d 932 (F'Ir.App.3t11at. f99t) of contempt had not bee ~ subpoena power, because the legislative ac- vested solely in the legislature, Article n utter of law; that enes= tion meets both the municipal purposes test d VIII, Section 11(8), Florida Constitution g investigatory subpoena an was not expressly prohibited by the i h (1$85), but in Dade County, that exclusive s in the taw th const tution, eit er general or special law, power has now been limited by the adop- ; at the City or county charter. City of Boca Rctton v. tion of the Home Rule Amendment (1956), '•mpt to delegate adbpoe- tdependent $eview P l Gidman, 440 So.2d 1277 (F1a.1983); City W M which specifically vests such power in the ane tat th of inter Park v. ontesi, 448 So.2d 1242 municipalities. Article VIII, Section 11(8) e city charter, as (1! la. 6th DCA), review denied, 456 So.2d of the Florida Constitution of 1886 as ily authorized only the 1182 (F1a.1984). We first note that Article amended, states in pertinent part that Dade and the Civil Service VIII, Section 6(e), Florida Constitution County "[sJhall provide a method by which nvestigatory subpoenas; (1968), apecificaliy exempts Dade County each municipal corporation in Dade County :he Independent Review and all municipalities therein, from the pro- shall have the power to make, amend or ion was an insufficient visions of Article VIII, wherein it is pre- repeal its own charter." The Florida Su- at the subpoena power cisely stated: "as if this article had not preme Court noted in its first interpret~- =tive bargaining agree- been adopted"? Municipalities in Dade tion of the Dade Home Rule Charter that: City of Miami and ~ the f County are controlled by the provisions of As part of the same subsection (Article . Police; and that the Article VIII, Section 11, of the Florida Con- VIII Section 11(8)) it should be pointedly w Panel tacked standing stitution of 1885, as amended in 195G, plus , noted that the Constitution provides that the provisions of the Metro Charter, until " upon the adoption of the home rule char- Petitioners argued that county shall adopt a such time as the ~ ter "this method" (the method which the was lawful] dele sled y g charter or home rule plan pursuant to [Ar- " , charter provides for municipalities to pendent Review Panel in title VIII of the Constitution of 1968]. This event has not occurred since the effec- make, amend or repeal their charters) •ovisiona of the Florida Munici al H R live date of the 1968 Constitution. "shall be exclusive and the legislature p ome ule shall have no power to amend or repeal .66, FIa.Stat.), and the The Home Rule Amendment was ap• the charter of any municipal corpora- , Section 3(y). proved by the voters of Florida, in Novem• Lion in Dade County." ber, 1956. On May 21, 1957, the Home ' of the record, hearing Rule Charter provided for in the amend- Dade Count v. Dade Count Lea ue o y y g f :1, and consideration of merit was approved by the electorate of Municipalities, 104 So.2d 512, 517 (Fla. the trial court entered Dade County and became effective sixty 1958). ~g the order to show days thereafter. The Home Rule Amend- The stated objective of the home rule g the petition for con- merit granted county government power legislation was to transfer the power the ce. In so ruling, the over local affairs within Dade County, but legislature had in passing local bills and 3 matter of law, the Ad it required Dade County to provide a meth- special laws applicable only to Dade Court-- review Panel did not od whereby the municipalities would have ty, from the state to the Dade .County :o issue subpoenas and the power to make, amend, and repeal mu• Board of County Commissioners, and hence . ce of witnesses to its nicipal charters. This power was formerly on to the municipalities' 1d the i 2. Section 16t5.021(3)(d), Florida Statutes, (1987), ' article. All provisions of the Metropolitan Dade am cus Curiae The Legislature recognizes reads as follows: County Home Rule Charter, heretofore or here- - .Section 2 of the F1or- that pursuant to the grant of power set forth in after adopted by the electors of Dade County G8), and Section 166: § 2tb), An. VIII of the State Constitution, the pursuant to Article VIII, Section I1, of the Con• tatutes (1987) as iv legislative body of each munic[pality has the stttution of 1885, as amended, shall be valid, , g - _ power to enact legislation concerning any sub- and any amendments to such charter- shall be er to enact the resold- ject matter upon which the state legislature may valid; provided that the said provisions of such Hake the delegation of act except: Any subject preempted to a county charter and the said amendments thereto are ~ pursuant to a County charier adopted under the authorized under said Article VIII, Section I1, .booting of a motorcycle ~ authority of art. VIII, §§ 1(g), 3, and 6(e), of the of the Constitution of 1885, as amended." ny Lloyd by officer Wi!- i ~ resulted in the death of state constitution:' 3. The preamble to the Metro Dade Charter reads " senger on the motor cle c3' - Section d(e), Article VIII of the State Constitu• " as follows: 1Ne, the people of this County, in . al notice of the foregoin lion, reads as follows: CONSOLIDATION AND order to secure for. ourselves the benefits and g ; 90.202(12) Florida Evi• HOME RULE. Article VIII, Sections 9, 10, 11 responsibilities of home rule, to create a metro- , since they arc facts not and 24, of the Constitution of 1685, as amended, politan government to serve our present and j wse they are capable of shalt remain in full force and effect as to each future needs, and ro endow our municipalities 1 termination by resort to county affected, as if this article had not been with the rights o/ sel/ determinotion in their y cannot be questioned adopted, until that county shall expressly adopt local a/Jabs, do under Cod adop! this /tome rule " . a charier or home rule plan pursuant to this Charttr. ($mphasis added.) _ lf/ 47~,.'. ~~~' c ~~~ Fla. 6fi~ S(11»Ir~t )itbihDllt'il"~~ti 2d 3~~lEtt~~ ')`he drafters of the 1V(etropol#tan fiade pity oJ' 11liami beach +~. ~`arte ?'au~era, 285 ~"~~ altd !N'ateri~tls s; County Charter, ~ they were eonlst#tut#+~fti• ~o.2d x'64 (1<'ia,1g'i4) ~'fte otht~r two t;ti~ns P#t~#tl m~~t-#n~ of; tll~t ally required to do, provided a method make no reference to the Constitution of 1•lori~a nlun#eipal carp whereby each munic#pality in bade County 1968 as it effects municipalities authorized of the state, and corlt could adapt, amend or revoke a charter for under the provisions of the 18$5 Constitu• be created without the its own government. Metropolitan Dade tion as amended, which is the author#ty the state, nor is a mun County Charter, § 5.03(A), Pursuant to under which the City of Miami operates, exercise any powers section ii.63(~A), the governing body of a Apparently this point was not presented to granted dit'ectly by th Dario manic#pality must: (1) either adopt a the appellate court, that#sed as valid by dul rei{olutioh or certify a petition of ten per- C2] Generally a municipality derives its special acts, The F'lo cent of the qualified electors, (2) draft an power of subpoena in connection with its clearly ststed its adhsr in 7'am~a v. L~asto t 1 amendment in a method determined by or• power to legislate, or when exercised, a ~ , So, 76g 784 (194b): dinance, (3) which must then be submitted quasi judicial power. When a mun#cipal , Unlike ~ cvurtty, a t to a vote and appraved by a majority of the charter or special act grants the use of subdivision of the ~t electors voting! subpoena power and prescribes, if any, its Our attention has been called to the fol- manner of delegation, the specific delega- tion authorized is the only means available attribates of saverei• t ~ ance of governmentt .lowing authority, State v. City of Miami, by the governing authorities to the exclu• relative limited pre 379 So.2d G51 (FIa.1980); City of Miami lion of an eneral y g grant of power or and exemptions for t Beach v. Forte Totuers, Inc., 305 So.2d 764 authority. The Miami City Charter specifi- employees , .. [1t~ i (FIa.1974); Rolle v. City of Miarni, 408 cally prescribes the several methods of sub- silting of a populatic So.2d 642 (Fla. 3d DCA 1981). We note poena power delegation and it is a general with such governm- that only the Forte Towers case refers to rule, that specific requirements of a special also corporate publi the Constitution of 1968, and it permits act or charter, will control to the exclusion that#ty as may be co general law to impact the municipal charter of a general grant of authority. charter or other to in Dade County only when the grant of [31 Florida adheres to what is known as under the [Floridan t ower is in addition to those alread held P Y "Dillons Rule" the traditional measure for Tampa v. Easton,. 19: by the municipal corporation. See Forte , determining the scope of local power under So. 753, 754 (1940). Towers at 767, wherein the foliowin is g found state enabling legislation a Pursuant to Another way of state , "Dillons Rule", local governments may ex- is that the express enut [A]mendment to the cit charter is not Y ~~ ercise only those powers granted in ex- era conferred on munic i the only means by which additional press words," or "those necessarily or Sion of all pother power powers may be conferred on a Dade fairly implied in or incident to, the pow- egated to them.and whi il 'i County municipality. The Metro County ers expressly granted," or "those essential y implied in those e ~ charter section 5.02 provides that each to the declared objects and purpose of the Pensacola v. Fillingim } munici alit shall have the authorit to P Y y [municipal] corporation not simply conve- 1960), rehearing denier " + ~ exercise all powers relating to its local ~~ , nient, but indispensable. See D. Mandelk- Walker, 52 Fla. 297, 30 ` affairs not inconsistent with the char- er, D. Netsch, & P.P. Salsich State and the Florida Supreme: ~r• 1 , Local Government in a Federal System: "jw~hile strict°construc plied to the grant of pc 4. Section 5.03 of the Metropolitan Dade County " ing body shall make copies of the proposal ties.. and espeClally those Charter reads as follows: (A) Except as proved- ed in Section 5.04, any municipality in the coup- available to the elcetors not less than 30 days before the election. Alternative proposals may lit: burdens, yet if the ty may adopt, amend, or revoke a charter for its own government or abolish its existence in the be submitted. Each proposal approved by a majority of the electors voting on such proposal implied, it should not ' Str1Ct Construction. A following manner. Its governing body. shall, within 120 days after adopting a resolution or shall become effective at the time fixed in the must yet be a sensible ~. after the certification of a petition of ten per- proposal based on .the entire eo : r cent of the qualified electors of the municipali- (B) All municipal charters, amendments there- id 52 Fla. at 300, 42 ; ty, draft or have drafted by a method deter- mined by municipal ordinance a proposed char- to, and. repeals thereof shall be filed with the Clerk of the Circuit Court:' As a general rule Of ter, amendment, revocation, or abolition which tiori, the mention of on shall be submitted to the electors of the munici• 3. See Dillon, Municfpal Corporations l54, 155 . palities. Unless an election occurs not less than (5th Ed.1911); McQuillin, The Law o/ Municipal b. `The present Charter of 60 nor more than 120 days after the draft is Corporations 592 (3d Ed. (Smith) 1949); Suther• reenacted by-the. i,egtsla . submitted, the proposal shall be submitted eta land, Statutory Construction, (4th Ed.1985). session, as contained tit L ' special election within that time. The govern- 10847, and has been an lti13 leach a x'orte 7'otvers, X05 974) The other ttvo cases nee to the Constitution of s municipalities authorised :ions of the 1$$6 Constitu• d, which is the authority City of Miami operates. point was not presented to .trt. a municipality derives its ma in connection with its te, or when exercised, a ewer. When a municipal it act grants the use of and prescribes, if any, its ation, the specific delega- the only means available • authorities to the exclu- ~eral grant of power or [isms City Charter specifi- te several methods of sub- gation and it is a general requirements of a special ~l control to the exclusion tt of authority. Ceres to what is known as e traditional measure for pope of local power under gislation ° Pursuant to :al governments. may ex- powers "granted in ex- "those necessarily or or incident to, the pow- ted," or "those essential sects and purpose of the ttion-not simply conve- cable." See D. Mandelk- P.P. Salsieh, State and in a Federal System: ke copies of the proposal :tors not less than 30 days Alternative proposals may ~ proposal approved by a ors voting on such proposal ve at the time fixed in the iarters, amendments there- of shall be filed •with the Court: pal Corporations 154, 155 illin, The Law o/ Municipal Ed. [Smithl 1949); Suther• ruction, (4th F-4.1985). 13Ai{I2Y v. GAItCIA 1{la. ~~"~ t;Ue as 873 So.3d 933 (pla.App. 3 bUt. 1491) Cases and Materials 83 (2d ed. 1983). The exclusion of another. Thayer v. State, 835 plain meaning of that doctrine is that the So.2d 815 (F1a.1976) (citing to Neat Farn3s Florida municipal Corporation is a creature Drainage Dist. v. Certain Lands, 154 Fig. of the state, and consequently, none may 554, 19 So.2d 284 (1944)). Specifically, be created without the express authority of where the exercise of particular powers the state, nor is a municipality permitted to may be fairly included in and authorized by exercise any powers other than those general powers granted, the statutory colr granted directly by the constitution or au- struction rule, expresslo unius est excCuso thorized as valid by duly enacted general or alterius, is not applied to exclude powers special acts. The Florida Supreme Court that serve the purposes for which munici- clearly stated its adherence to this principle palities are organized where such powers in Tampa v. Easton, 195 Fla. 188, 191, 198 are consistent with other powers conferred So. 763, 754 (1940): and with limitations imposed by the charter Unlike a county, a municipality is not a or by statute upon the municipal powers. subdivision of the State with subordinate attributes of sovereignty in the perform- Southern Utilities Co. v. Palatka, 86 Fla. ante of governmental functions and cor- b83, 99 So. 236, 243 (1923), cert. granted relative limited privileges, immunities 264 U.S. 580, 44 S.Ct. 454, 68 L.Ed. 859 and exemptions for the negligence of its (1924), affd, 268 U.S. 232, 45 S.Ct. 488, 69 employees ... [It] is a legal entity con- L.Ed. 930 (1925). silting of a population and defined area, The City of Miami Charter, Section 14, (a with such governments[ functions and legislative enactment) s provides the afore- also corporate public improvement su• mentioned express grant, where it states in thority as may be conferred by law in a pertinent part that, "The Commission or charter or other legislative enactment any committee thereof, duly authorized by under the [Florida] Constitution. the commission so Ito do, may investigate Tampa v. Easton, 145 Fla. 188, 191, 198 ... the official acts and conduct of any city So. ?b3, ?54 (1940). official, and by similar investigations may Another way of stating the general rule secure information upon any matter. In is that the express enumeration of the pow- conducting such investigations the commis- ers conferred on municipalities is an exclu- sion of all other powers not expressly del- sion, or any committee thereof, may re- egated to them and which are not necessar- quire the attendance of witnesses and the sly implied in those expressly delegated. Production of books, papers and other evi- Pensacola v. Fillingim, 46 So.2d 876 (Fla. deuce, and for that purpose may issue sub- 1950), rehearing denied. In Lachman v. poenas which shall be signed by the presid- Walker, 52 Fla. 297, 300, 42 So. 461 (1906), ing officer of the commission or the chair• the Florida Supreme Court held that man of such committee, as the case may "[w]hile strict construction should be ap- be, which may be served and executed by plied to the grant of powers to municipals- any policeman". No other reference is ties and especially those that result in pub- made in the City of Miami Charter to the lie burdens, yet if the power is clearly delegation of such investigative subpoena implied, it should not be impaired by a powers (except Section 36(i), pertaining. to strict construction. A strict construction the Civil Service Board) to any other board, must yet be a sensible construction and be committee or agency, not comprised of city based on the entire context." Lachman, commissioners. id. 62 Fla. at 300, 42 So. 461. Aa a general rule of statutory construe- [4, 6I Coupled with the power to issue tion, the mention of one thing implies the subpoenas is the power to enforce compli- 6. The present Charter of the City of Miami wns sessions of the Legislature and by the city's reenacted by the Leg[slature during the 1925 electorate pursuant to the provisions of § 5.03 session, as contained in Laws of Fla. (1925), ch.• of the Metropolitan Dade County Charter. 10847, and has been amended at subsequent - } ~ ~ 93~ 1:1a. ~~~ ~t~U'1"it` iit~~t~ti~'lE;fi~, 2d 13~1~111LS , Z ~, _ ' ance therewith, Ultilitihtely disabeyin~ ~ The creation of this review panel in the subpoena lawfully isi{ti+~d 'dan result ill a instant case, is not within the specific- conterript order by an i3ppropriate judicial group that it; authorized under the chartee { forum, which upon nohcompliance, may re- to receive subpoena powers, therefore the , salt in the one subpoenaed being subject to attempted delegation is unauthorized. 1 incarceration. Regardless of whether a ub f C6l In addition to the above, the at- ,! poena or a s t:ommfttee.appiies to a court tempted delegation of power was by resole- I+ or issues. a subpoena on its own authority, - and not by ordinance. A municipal lion ?~ the case here, it must apply to the as .was , ordinance is defined as "CA]n official legis- ~4 courts for an order if it wishes to enforce a lative action of a governing body, which subpoena against a recalcitrant witness. action is a regulation of a general and lln State ex rel, sreenberg v. Florida State permanent nature and enforceable as a lo- ? Board of Deittistrl/, 297 So.2d 628 (l±la. 1st eel law." Sec, 166.041(1)(a), >!la.Stat. bCA 11174), it was held that; (1g87), A municipal resolution is defined [A] citizen may not be held in contempt as "[A]n expression of a governing body and thereupon punished on failing or re• concerning matters of administration, an fusing to obey. any subpoena, process, or expression of temporary character, or a order of any administrative agency until provision for a disposition of a particular after he shall have first been afforded an item of the administrative business of the opportunity for a hearing before a court governing body." Sec, 166.041(1)(b), h'la, of competent jurisdiction and until that Stat. (1987). court shall have ordered obedience to such subpoena, process or order .and Upon the enactment of a resolution, citi- such court order shall have been. disobey- tens of the incorporated municipalities ed have no right to appear and no opportunity . ? State ex rel. Greenberg v. Florida State to be heard prior to the adoption of the resolution. However, upon the considers- Board of Dentistry, 297 So.2d 628, 632 lion of a municipal ordinance, the public is (Fla. 1st DCA 1974). entitled to a notice and an opportunity to Therefore, there must be a clear authori- be heard. Certainly, in a matter as impor- ( ty to either issue a subpoena by municipal { last as delegating the power of subpoena officials in the first instance or for them to 1 to nonelected officials, such sower, even if ' :,~.. l~+ait~li~~,' 497 ~o.~cl th0 deleg~itien of s first instance. 'f'fiii: issue irl ~80d dui:! South Mta~mi, 13011 1974), wherein it wa tax assessment forfi ter to be ar:cbtitplii~l not be secomplished ~uildfnp, id. at 8fil ; the lang7uage utiliz, preme Court in ~r< tersbu~g iii 1!`la, i holding that "g reso toted for and have an ordinance, nor c initial authority wl vested by ordintnc commission, which it city, .possesses no 1' . authority es preset Municipal .officials ~ ance with an expres and not soy implied pa v. L~'aston, 145 (Fla.1g40). Accordingly, we I the Circuit Court di show cause and dial contempt .with prejt Affirmed. ~ If ..thee city opts to change the manner in do not find), must be exercised by the mu- o ~ttrN which subpoena power is to be exercised, nicipal commission via a duly enacted ordi- ~ including the power to delegate same. to a oases. citizen board such as ".the Ad Hoc Indepen- ` dent Review Panel, then such change must (7] The method by which an indepen- SOUTH POINTI be accomplished in accordance with the pro- dent review board may exercise such a COMPAN i I visions' of the .Charter and the Municipal power might possibly be prescribed by res• App ;: i Home ° Rule Powers .Act; i.e., by a refer- olution, Wallace v. Leahy, 496 So.2d 970 ~ endum of the electors of the city. (Fla. 3d DCA), review denied, Leahy v. CAPITAL BANK, 7. Black's Law Dictionary, 5th Edition. (1979), duct of government:' .Certain Lou Upon Which - No defines the term and word subpoena as follows: Taxes Are Delinquent v. Town o/ Monticello, 159 . ~ "Subpoena. A subpoena is a command to ap- Fla. 134, 144, 31 So.2d 905 (1947), rehearing , DlStrlet' COUrt O' pear ac a certain time and place to give testimo- denied; 'The. purpose of requiring that a pro• ny upon a certain matter. More specifically, posed ordinance be read at more than -one ses• Third , this is a subpoena ad testificandum, (See also 3d sion or meeting is to prevent undue- haste and ~ ed.); which is defined as 'the common subpoena' secure deliberation by the. legislative body be- Jan: ; requiring the attendance of a witness on a trial, ' fore final passage." Nash v. Vaughn, 133 Fla. Rehearing Der ~ inquisition, or examination: 499, 509,-182 So. 827 (1938). This distinction, i /n re . Strauss, 30 App.Div. 610, 52 N.YS. 392. which is applicable to counties, has been recog- g.' "A resolution is an order of local government h sized and codified in Chapter 166, Florida Stat- a s After developer ile an of a special and temporary character. w ce . ordinance prescribes.a permanent rule of con• gati0n; bank BCCeIe: _' '• w ' j `, j' f: =ti '~ ;. - `; i ,. } ~' i 'c i, °`I ;; , ' j :,, • ~; ' .~. __~ .._--k- ---- T ___..,.._T~,.__ ..._____~. -- ___~_._.~_.__ .____.~____ ___ -.~__w.~_ ~~. 9 :he review panel in the of within the s~ecifie :. riled under the charter powers, therefore the ~n is unauthorized. to the above, the at- ~f power was by resolu• rdinance. A municipal as "[A)n official legis• ;overning body, which :ion of a general and ': nd enforceable as a lo- 166,041(1)(x), F1a.Stat. 1 resolution is defined ~ of a governing body of administration, an orary character, or a ~osition of a particular trative business of the Sec. 166.041(1)(b), Fla. nt of a resolution, citi- ~orated municipalities ear and no opportunity o the adoption of the r, upon the consider~~ -rdinance, the public is and an opportunity to in a matter as impor- he power of subpoena :s, such power, even if st instance, (which we exercised by the mu- is aduly enacted ordi- by which an indepen- may exercise such a - be prescribed by res- Leahy, 496 So,2d 970 ew denied Leahy v. Cermin Lou upon Which Town o/ Montecelio, 159 2d 905 (1947), rehearing of requiring that apro- ad at more then one ses- prevent undue haste and the legislative Body be- Jash v. Vitaghn, 133 Fla. (1938). This distinction, counties, has been recog- ~hapler 166, Florida Stat- 9. POINTE bEV. v. CAPITAL BAiVK Fla. 9~~ Clte a 872 So.2d 929 (FIa.App. 2 t-IRI. 1491) Wallace, 497 So.2d 1217 {FIa.1988), but not action to recover balance due, to foreclose the delegation of subpoena power in the mortgage and to recover from guarantors first instance. This court addressed that of promissory note. The Circuit Court, issue in x'800 Building, Ina v. City of Dade County, Richard S. Fuller, J., granted South Miami, 305 So.2d 860 (Fla. 3d DCA summary judgment in favor of bank, and 1974), wherein it was held that change in a appeal was taken. The District Court of tax assessment formula, required by char- Appeal held that interest cap exemption ter to be accomplished by ordinance, could contained in statute was applicable to loan. not be accomplished by resolution. In 7800 Affirmed. Building, id. at 861, this court adhered to the language utilized by the Florida Su- preme Court in Bro:un v. City of St. Pe- Banks and Banking x+181 lersburg, 111 Fla. 718, 153 So. 140 (1933), Interest cap exemption contained in holding that "a resolution cannot be substi• statute was applicable to loan made by toted for and have the force and effect of banking corporation to developer; bank an ordinance, nor can a resolution supply complied with all requirements imposed on initial authority which is required to be other class of lenders permitted to charge vested by ordinance." Generally, a city interest rate in question and indicated on commission, which is a legislative body of a promissory note specific chapter of statute city, possesses no power to delegate their authorizing interest rate charged. West's authority as prescribed in their charter. F.S.A. §§ 665.077, 687.12(1, 4). Municipal officials can onty act in accord- ance with an express grnnt in their charter and not any implied grant of power. Tam- George W. Wright, Jr., Akerman, Senter- pa uEaston, 145 Fla. 188, 198 So. 753 fitt & Eidson and William E. Sadowski, (FIa.1940). Oscar A. Sanchez, Miami, for appellants. Accordingly, we affirm the judgment of Traurig, Hoffman, Lipoff, Greenberg the Circuit Court discharging the order to , Rosen & Quentel and Hilarie Bass and show cause and dismissing the petition for William T. Hess, Miami, Gunster, Moakley contempt with prejudice. & Stewart and J. Cameron Story, III, Fort Affirmed. Lauderdale, for appellees. O SRtYNUN/fRSrsTtM Before JORGENSON, COPE and T GODEftICH, JJ. SOUTH POINTE DEVELOPMENT COMPANY, etc., et al., Appellants, v. CAPITAL BANK, etc., et al., Appellees. No. 90-385. District Court of Appeal of Florida, Third District. Jan. 15, 1991. Rehearing Denied Feb. 20, 1991 After developer defaulted on loan obli- gation, bank accelerated loan and brought PER CURIAM. The appellants, South Pointe Develop- ment Company [South Pointe], American Community Development Group, Inc. [AGDG], and John A. Hinson, appeal the trial court's non-final order granting Capi- tal Bank's motion for summary judgment as to liability. We affirm. Capital Bank loaned South Pointe Devel• opment Company, Inc. $10,000,000.00 which was secured by a mortgage on unde• veloped real property. The interest rate om the loan is prime plus two percent (29~).` Prior to lending the funds, Capital Bank and South Pointe executed a commitment letter which contained several conditions. V _ -~ ~~ ~ ~~ K 'W~I~~tE~~A'~, J~~E 1~, x,991 , _~ ~~C~i~~~ M. ~~~~Y , Efic . ~* ** CASE Nb. X7,458 P+~ti.tit~n~r ** UIS'~RIC~' COtJRZ' OF A1~PEA~, ~~ ** 3RD.. DTSTR~CT N0. 89-].784 i MAR~'~~1 GA~tGIA, ..ETC . , et al . ,* • ** • ** Respondents. ** ~, This cause having heretofore been submitted to the Co essan urisdidtional briefs and portions of the record deemed nec ~Y' ~ Florida • of lect urisdiction under p,,rticle V, Section 3 (b) , to r j determined that it Constitution (1950),...and the Court having d decline to accept jurisdiction, it is ordered that the shout Petition fr~r Review is .denied. be entertained by trie Court. No Motion for Rehearing will See Fla. R. App• P. 9.330(4)• ' MCDONALD, BARKETT and KOGAN, JJ., concur OVERTON, . SHAW, C.J., dissents . A True Copy ~ ccH Hon. Louis J. Spallone, Clerk Hon. Marshall Ader, Clerk TEST: Hon. Robert P. Kaye,. Judge . ,• Harold Long, Jr. Esquire ,. ,, Robert Klausner, Esquire, -Side J. White .,~~~•ID'Cp~ Kathryn S. Pecko Esquire Clerk, Suprem~~~t~m o l~ .? f Chfef Deputy ClerKy~;~ ~ __' o ~ 4 ~ F L~ L j;,~ -1 ,~ .,; '; ~' ~, _~ ~~~. ~~~ ~1,. ~ ` y ,. i ~;