Third District Court of Appeal
State of Florida
Opinion filed March 14, 2018.
Not final until disposition of timely filed motion for rehearing.
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No. 3D16-1879
Lower Tribunal No. 16-1926
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The City of Sweetwater, Florida, et al.,
Appellants,
vs.
Orlando Lopez, etc.,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Barbara Areces,
Judge.
Genovese Joblove & Battista, John H. Genovese and Jesus M. Suarez, for
appellants.
Kluger, Kaplan, Silverman, Katzen & Levine, Todd A. Levine and Alan J.
Kluger, for appellee.
Before EMAS, FERNANDEZ and LUCK, JJ.
EMAS, J.
INTRODUCTION
This appeal arises from a dispute between the Mayor of The City of
Sweetwater and members of its City Commission. Appellant, The City of
Sweetwater (“Sweetwater” or “the City”), Florida, by and through its City
Commissioners, Jose M. Diaz, Jose A. Bergouignan, Prisca Barreto, Manuel
Duasso, Idania Llanio, Isolina Marano and Eduardo Suarez (“the Commission”),
appeals the trial court’s entry of two final summary judgment orders in favor of
Orlando Lopez, Mayor of The City of Sweetwater (“Mayor Lopez”), on two
separate claims made in his complaint. We reverse the summary judgment order
on the first claim, as genuine issues of material fact remain in dispute as to the
underlying claim. We reverse the summary judgment order on the second claim,
and hold that the trial court should have dismissed the underlying claim as moot.
FACTS AND BACKGROUND
On July 17, 2015, Mayor Lopez submitted a proposed budget for
Sweetwater’s 2015-16 fiscal year that commenced on October 1, 2015 and ended
on September 30, 2016. In an attempt to compensate for the previous year’s deficit
due to increased expenses, this proposed budget increased Sweetwater’s millage
rate from approximately 2.74 mills to 4.5065 mills.1 On July 29, 2015, during a
1 A “mill” or millage is the rate to be applied, for example, in calculating the
amount of taxes imposed on real property, with one mill representing one dollar
per $1000 in assessed property value. See generally § 192.001, Fla. Stat. (2016).
As an illustration, applying the proposed millage rate of 4.5065 mills, a property
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special commission meeting, the Commission proposed to set Sweetwater’s
tentative millage rate for the 2015-16 fiscal year at 2.7493 mills, the same rate as
the previous fiscal year. Given this lower millage rate, and in order to propose a
balanced budget, Mayor Lopez instituted several layoffs effective August 14,
2015.
Apart from its financial troubles, Sweetwater’s police department also
needed rebuilding. Mayor Lopez laid off several police officers and also hired four
former police officers from the City of Miami police department to comprise its
new command staff.
On August 18, 2015, the Commission approved three resolutions:
Resolution 4089, directing Mayor Lopez to rescind any layoffs which took place
during the months of July 2015 and August 2015; Resolution 4090, imposing a
moratorium on layoffs lasting until September 30, 2015; and Resolution 4091,
directing Mayor Lopez to eliminate unbudgeted positions for the budget year
ending September 30, 2015 (the “Commission Resolutions”).
Mayor Lopez vetoed all three Commission Resolutions, and the
Commission then overrode each veto. On August 26, 2015, the Commission
adopted Resolution 4092, providing for the elimination of funding for certain
positions within Sweetwater and prohibiting the use of nearly all “take home”
with an assessed value of $100,000 would be taxed in the amount of $450.65.
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vehicles by city personnel (the “Budget Resolution”), for the budget year ending
September 30, 2015. Again, Mayor Lopez vetoed the Budget Resolution and,
again, the Commission overrode his veto.
Mayor Lopez issued a new proposed budget reflecting the lower millage rate
the Commission voted for and, on September 14, 2015, the Commission held a
special public hearing to consider Mayor Lopez’s new proposed budget. At the
meeting, the Commission approved Mayor Lopez’s new proposed budget as
Sweetwater’s tentative budget for the 2015-16 fiscal year (the “Tentative Budget”).
On September 21, 2015 and September 23, 2015, the Commission held two
meetings in which it proposed amendments to the Tentative Budget. On
September 28, 2015, the Commission adopted certain budget amendments and
adopted a final budget (the “Final Budget”). On October 23, 2015, Mayor Lopez
vetoed the Final Budget. On October 28, 2015, the Commission overrode Mayor
Lopez’s veto of the Final Budget.
On January 4, 2016, the Commission authorized, by a unanimous vote, the
filing of a lawsuit on behalf of the City of Sweetwater to resolve the City’s
disputes with Mayor Lopez. On January 25, 2016, Mayor Lopez filed suit against
the City and the Commission, seeking declaratory relief, injunctive relief, and an
alternative writ of mandamus. In his complaint, Mayor Lopez alleged that the
Commission’s 2015-16 Final Budget violated Florida law and the City Charter.
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Mayor Lopez also alleged that the Commission’s Resolutions (4089, 4090, and
4091) and the Budget Resolution (4092) infringed on the mayor’s executive
powers to appoint and remove city employees. In addition to filing suit, Mayor
Lopez vetoed the Commission’s Authorizing Resolution and on January 29, 2016,
the Commission overrode Mayor Lopez’s veto.
On February 2, 2016, the City filed a petition for writ of mandamus (later
consolidated as a counterclaim to Mayor Lopez’s action) and on April 13, 2016,
the City filed an additional counterclaim seeking declaratory relief. Among other
things, the City sought to compel Mayor Lopez to implement the Final Budget. On
April 4, 2016, the Commission approved Resolution 4171, rescinding Resolutions
4089, 4090 and 4091.
Thereafter, the parties filed cross-motions for summary judgment.
Following a hearing, the trial court granted summary judgment in favor of Mayor
Lopez and against the City on all counts. In doing so, the trial court found, among
other things, that: (i) the Commission’s Final Budget is unenforceable because it
violates the City Charter and Florida law and therefore, Mayor Lopez is authorized
to operate the City using the approved Tentative Budget until such time as the
Commission passes a final budget consistent with the Charter and Florida law; (ii)
the Commission Resolutions constituted an improper usurpation of the Mayor’s
administrative and executive authority; and (iii) the Commission lacked authority
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under the Charter to legislate funding for specific personnel positions through the
Budget Resolution.
This appeal follows, and we review de novo the final summary judgment
order. Volusia Cty. v. Aberdeen at Ormond Beach, L.P.,
760 So. 2d 126, 130 (Fla.
2000).
ANALYSIS
1. Summary judgment in favor of Mayor Lopez on the Commission’s
2015-16 Final Budget
The City of Sweetwater operates under a so-called “strong mayor” form of
government. Sweetwater’s legislative power is vested in the commission, while its
executive authority is vested in the mayor, who is responsible for the
administration of the city government. See City of Sweetwater Charter, §§ 3.01,
4.00 (“the Charter”).
Section 5.01 of the Charter establishes the City’s budget adoption procedure.
First, the mayor delivers a budget message and proposed operating budget for the
next fiscal year to the city commission. In the budget message, the mayor must
include a proposed millage rate for ad valorem taxation in the next fiscal year.
Next, the city commission examines the proposed budget and the commission may
hold workshop meetings to consider the proposed budget. The commission may
also make tentative amendments to the proposed budget by majority vote and
adopt a tentative budget as required by state law. The commission must also
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consider the mayor’s millage rate proposal and adopt a tentative millage as
required by state law. Lastly, the commission “shall adopt the final operating
budget and millage for the next fiscal year . . . by resolution or ordinance, as
required by state law.” The Charter expressly provides that “[i]n the event the city
commission fails to adopt an operating budget for the ensuing fiscal year as
required by state law and this Charter, the city may continue fiscal operations as
provided by state law.”
In addition, Section 5.02 of the Charter authorizes the commission to amend
the budget in the event the fiscal year revenues will be in excess of those estimated
or insufficient to meet the amount appropriated.
As provided in the Charter, the budget must also comply with state law,
specifically, Chapter 166, Florida Statutes, which governs municipalities. Section
166.241(2) provides in relevant part:
The amount available from taxation and other sources, including
balances brought forward from prior fiscal years, must equal the total
appropriations for expenditures and reserves. At a minimum, the
adopted budget must show for each fund, as required by law and
sound financial practices, budgeted revenues and expenditures by
organizational unit which are at least at the level of detail required for
the annual financial report under s. 218.32(1).
(Emphasis added.)
The City contends the trial court erred in determining there were no genuine
issues of material fact and in granting summary judgment in favor of Mayor Lopez
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upon a determination that Mayor Lopez had the authority to refuse to implement
the 2015-16 Final Budget as passed by the Commission. We agree with the City
that summary judgment was improper, given the existence of genuine issues of
material fact.
Mayor Lopez contended that he was authorized to refuse implementation of
the Final Budget, as passed by the Commission, because it was not a balanced
budget and because it failed to utilize sound financial practices, as evidenced by
the inclusion of $2 million in projected revenue from the sale of public land.2
Mayor Lopez supported this contention with an affidavit from Richie C. Tandoc, a
certified public accountant, who opined, inter alia, that the Final Budget adopted
by the Commission was not a balanced budget and was not prepared in compliance
with section 166.241(2) or in accordance with generally accepted accounting
principles.3
2 Mayor Lopez contended that this projected revenue was not “available” within
the meaning of section 166.241(2), because this public land: 1) had not been
appraised; 2) was not under contract for sale; 3) could not be sold unless such
action was approved by a referendum, as required by the Charter; and 4) had not
been the subject of a required referendum. Further, the City owed $1.9 million for
an existing line of credit that was due to be paid on November 1, 2015, which debt
was not included in the Commission’s Final Budget.
3 In addition, the City’s independent auditor, Carlos Trueba, testified that, as a
financial professional, he could not justify including in the budget the proceeds
from the sale of the public land, because doing so violated sound financial
practices and generally accepted accounting principles.
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The City, in opposition to Mayor Lopez’s motion for summary judgment
(and in support of its own cross motion for summary judgment) submitted two
affidavits from Deede Weithorn, a certified public accountant retained by the City.
Ms. Weithorn averred that, in addition to her thirty-year career as a CPA, she led
the City of Miami Beach’s budget formulation during most of her eight-year tenure
as a Miami Beach City Commissioner. Ms. Weithorn opined, inter alia, that the
Final Budget was balanced and complied with the requirements of section
166.241(2).
The competing affidavits submitted in support of the parties’ respective
positions created a genuine issue of material fact, and therefore the trial court erred
in entering judgment in favor of Mayor Lopez on this claim. Holl v. Talcott,
191
So. 2d 40, 43-45 (Fla. 1966); Taylor v. Florida City,
322 So. 2d 35 (Fla. 3d DCA
1975). We reverse the final summary judgment entered in favor of Mayor Lopez as
to the 2015-16 Final Budget and remand for further proceedings,
2. Summary judgment in favor of Mayor Lopez challenging the
validity of the City’s Commission Resolutions and Budget Resolution
for the 2014-15 fiscal year
On August 18, 2015, the Commission adopted three Commission
Resolutions: Resolution 4089, directing Mayor Lopez to rescind any layoffs which
took place during the months of July 2015 and August 2015; Resolution 4090,
imposing a moratorium on layoffs lasting until September 30, 2015; and
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Resolution 4091, directing Mayor Lopez to eliminate unbudgeted positions for the
budget year ending September 30, 2015. On August 26, 2015, the Commission
adopted a Budget Resolution (Resolution 4092), providing for the elimination of
funding for certain positions within Sweetwater and prohibiting the use of nearly
all “take home” vehicles by city personnel (the “Budget Resolution”), for the
budget year ending September 30, 2015.
Mayor Lopez vetoed the Commission Resolutions and the Budget
Resolution, and the Commission subsequently overrode those vetoes. Mayor
Lopez did not enact or implement either the Commission Resolutions or the
Budget Resolution. Instead, four months later, in January 2016, Mayor Lopez
instituted the instant action below, challenging the validity of the Commission
Resolutions and the Budget Resolutions. Three months after the action was
instituted, the City adopted a resolution (Resolution 4171) rescinding the
Commission Resolutions.
The Commission Resolutions and the Budget Resolution all related to the
City’s 2014-15 fiscal year. These resolutions had all expired of their own accord
on September 30, 2015 (the last day of the fiscal year) before Mayor Lopez filed
his lawsuit challenging them.4 Further, the Commission Resolutions were
4 The Budget Resolution and the Commission Resolutions expired on September
30, 2015, the last day of the City’s 2014-15 fiscal year. By that date, neither the
Commission Resolutions nor the Budget Resolution had been implemented and
therefore could have no effect. Mayor Lopez did not file the subject action until
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expressly rescinded by the City during the pendency of the action below. These
circumstances, the City argues, rendered moot any challenge by Mayor Lopez
because no justiciable controversy existed for the trial court to resolve. We agree.
“An issue is moot when the controversy has been so fully resolved that a
judicial determination can have no actual effect.” Godwin v. State,
593 So. 2d
211, 212 (Fla. 1992) (citing Dehoff v. Imeson,
15 So. 2d 258 (Fla. 1943)). A
narrow exception to the mootness doctrine permits courts to decide an otherwise
moot issue “[i]f the underlying dispute is ‘capable of repetition, yet evading
review.’” Richmond Newspapers, Inc., v. Virginia,
448 U.S. 555, 563 (1980)
(quoting Southern Pacific Terminal Co. v. Interstate Commerce Comm’n,
219 U.S.
498, 515 (1911)). See also Morris Publ’g Grp., LLC v. State,
136 So. 3d 770, 776
(Fla. 1st DCA 2014) (holding that the mootness exception applies when “(1) the
challenged action was in its duration too short to be fully litigated prior to its
cessation or expiration, and (2) there [is] a reasonable expectation that the same
complaining party [will] be subjected to the same action again”).
We conclude that this exception is inapplicable to the instant case. There is
nothing to establish a reasonable expectation that the mayor will be subjected to
the same action again or that such a dispute is likely to recur.5 We also note that
January 25, 2016.
5 The City of Sweetwater was formed in 1941, and there is no evidence presented
upon this record to suggest such an issue has ever arisen in its 75-year history.
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the Mayor Lopez waited several months after adoption of the resolutions at issue
before filing suit to challenge their validity, undermining any assertion that this
action meets the “evading review” prong.6
Because the Commission Resolutions and Budget Resolution expired of
their own accord or ceased to be capable of implementation, well prior to the
institution of the action below, the trial court erred in resolving challenges to their
validity. In the instant case there was no longer “a bona fide, actual, present, and
practical need for the declaration” sought by Mayor Lopez as to these Resolutions.
Dept. of Envtl. Prot. v. Garcia,
99 So. 3d 539, 544 (Fla. 3d DCA 2011). The
summary judgment on the Commission Resolutions and the Budget Resolutions
amounted to an advisory opinion which courts will not render. Martinez v.
Scanlan,
582 So. 2d 1167, 1174 (Fla. 1991).
6 The circumstances of this case involve the executive and legislative branches of a
local government opposing one another regarding issues that at least touch upon
aspects of a political question, further cautioning against judicial intervention. See
Baker v. Carr,
369 U.S. 186, 217 (1962) (setting forth six criteria to be considered
in gauging whether a case involves a political question: (1) a textually
demonstrable commitment of the issue to a coordinate political department; (2) a
lack of judicially discoverable and manageable standards for resolving it; (3) the
impossibility of deciding without an initial policy determination of a kind clearly
for nonjudicial discretion; (4) the impossibility of a court's undertaking
independent resolution without expressing lack of the respect due coordinate
branches of government; (5) an unusual need for unquestioning adherence to a
political decision already made; or (6) the potentiality of embarrassment from
multifarious pronouncements by various departments on one question).
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We agree that the trial court erred in reaching the merits of, and in entering
final judgment in favor of Mayor Lopez on, his summary judgment motion
regarding the Commission Resolutions and the Budget Resolution. We reverse
with directions to dismiss the claims as moot.
CONCLUSION
We therefore reverse the trial court’s two final summary judgment orders in
favor of Mayor Lopez, and remand with directions and for further proceedings
consistent with this opinion.
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