MICHAEL DAVID TESTA, Individually and as Trustee of the M. DAVID TESTA REVOCABLE LIVING TRUST, DATED OCTOBER 25, 2017 v. TOWN OF JUPITER ISLAND ( 2023 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
MICHAEL DAVID TESTA, individually and as trustee of the
M. DAVID TESTA REVOCABLE LIVING TRUST,
DATED OCTOBER 25, 2017,
Appellant,
v.
TOWN OF JUPITER ISLAND,
JUPITER ISLAND COMPOUND, LLC, and DOLPHIN SUITE, LLC,
Appellees.
No. 4D22-432
[May 17, 2023]
Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Martin County; Gary L. Sweet, Judge; L.T. Case No. 2021CA000599.
Jesse Panuccio, Stuart H. Singer, James Grippando, and Jason Hilborn
of Boies Schiller Flexner LLP, Fort Lauderdale, for appellant.
Joanne M. O’Connor and John C. Randolph of Jones Foster P.A., West
Palm Beach, for appellee Town of Jupiter Island.
Ethan J. Loeb, Steven Gieseler, Cynthia G. Angelos, Nicholas M.
Gieseler, and Elliot P. Haney of Bartlett, Loeb, Hinds & Thompson, PLLC,
Tampa, for appellees Jupiter Island Compound, LLC, and Dolphin Suite,
LLC.
Joni Armstrong Coffey and Gerald B. Cope, Jr. of Akerman LLP, Miami,
and Janette M. Smith of Vernis & Bowling of The Florida Keys, P.A.,
Islamorada, for amicus curiae The City, County, and Local Government
Section of The Florida Bar, in support of appellees’ motions for
certification.
Virginia S. Delegal of Florida Association of Counties, Tallahassee, and
Jeffrey N. Steinsnyder of Florida Association of County Attorneys, Inc.,
New Port Richey, for amicus curiae Florida Association of County
Attorneys, Inc., in support of appellees’ motions for certification.
Fred E. Moore of Blalock Walters, P.A., Bradenton, for amicus curiae
Florida Municipal Attorneys Association, in support of appellees’ motions
for certification.
Kyle S. Bauman of Anchors Smith Grimsley, PLC, Fort Walton Beach,
and Kimberly R. Kopp of Romano Kopp Law, PA, Sanford, for amicus
curiae Okaloosa County League of Cities, Inc., in support of appellee Town
of Jupiter Island’s motion for certification.
ON APPELLEES’ MOTION FOR CERTIFICATION
PER CURIAM.
Following our merits opinion in this case, issued as Testa v. Town of
Jupiter Island, 4D22-232, 48 Fla. L. Weekly D306, 2023 WL 1808293 (Fla.
4th DCA Feb. 8, 2023), appellees have filed separate motions for
certification to the Florida Supreme Court of a question of great public
importance. We have considered the appellees’ motions, the amicus curiae
filings in support of appellees’ motions, and appellants’ responses to
appellees’ motions and the amicus curiae filings.
Based on the foregoing, we grant appellees’ motions to certify a question
of great public importance. However, we do not agree with appellees’
proposed certified question. Appellees’ proposed certified question asks:
Whether section 166.041(3)(a), Florida Statutes (2018),
requires a municipality to re-advertise an ordinance proposed
for adoption, where the advertised public meeting is held, and
the ordinance is considered, but the vote adopting the
proposed ordinance is continued, deferred, postponed, or
otherwise carried over on the record to a subsequent, date
certain public meeting.
We rephrase appellees’ proposed certified question to more accurately
reflect the record and our holding. To that end, we certify to the Florida
Supreme Court the following question of great public importance:
Where an ordinance proposed for adoption is initially
advertised for a date certain public meeting in compliance
with section 166.041(3)(a), Florida Statutes (2018), and the
proposed ordinance is considered at the advertised public
meeting, but the proposed adoption is postponed on the
record from the advertised public meeting to a subsequent
date certain public meeting, does section 166.041(3)(a) require
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the municipality to re-advertise the ordinance proposed for
adoption for the subsequent date certain public meeting in
compliance with section 166.041(3)(a)?
Motions for certification granted; rephrased question certified.
KLINGENSMITH, C.J., and GERBER, J., concur.
GERBER, J., concurs specially with an opinion.
ARTAU, J., dissents with an opinion.
GERBER, J., concurring specially.
I concur with the foregoing opinion certifying a question of great public
importance. I write separately to briefly respond to my colleague’s dissent
from certifying a question of great public importance.
I recognize that the purpose of certifying a question of great public
importance is not to request the Florida Supreme Court “to check our
work.” See Owens-Corning Fiberglas Corp. v. Ballard, 749 So. 2d 483, 485
n.3 (Fla. 1999) (discouraging district courts of appeal “from asking for this
kind of check on [their] decision[s] as a question of great public
importance”). We remain confident in our decision.
I further recognize that “[a] mere conviction that the Florida Supreme
Court should hear the case will not suffice” and “that a case presents an
issue of first impression in this state would not in itself seem to establish
a question of great public importance.” Raoul G. Cantero III, Certifying
Questions to the Florida Supreme Court: What’s So Important?, 76 Fla. B.
J. 40, 40-41 (May 2002).
Rather, certification of questions of great public importance requires
consideration of many factors, including (1) the importance of the issue;
(2) whether its resolution affects parties statewide versus only the
individual litigant; (3) whether it is one of “first impression” or arises
regularly; (4) whether caselaw is unclear; (5) the significance of judicial
and public policy in its resolution; and (6) the relevance of intervening legal
developments. Id.This case satisfies all of the foregoing factors except for the sixth factor
relating to intervening legal developments, which have yet to occur but
reasonably may occur. First, the issue’s importance is plain, because it
affects the manner by which the public is notified of a municipality’s intent
to adopt a proposed ordinance. Second, the issue’s resolution affects
parties statewide, because we have held that where an ordinance proposed
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for adoption is initially advertised for a date certain public meeting in
compliance with section 166.041(3)(a), Florida Statutes (2018), and the
proposed ordinance is considered at the advertised public meeting, but the
proposed adoption is postponed on the record from the advertised public
meeting to a subsequent date certain public meeting, section 166.041(3)(a)
requires the municipality to re-advertise the ordinance proposed for
adoption for the subsequent date certain public meeting in compliance
with section 166.041(3)(a). Third, the issue is one of first impression, as
the parties concede. Fourth, no case law exists on this issue until now.
And fifth, the judicial interpretation of this issue is significant to public
policy, because the interpretation determines whether a municipality is
required to re-advertise when an ordinance’s proposed adoption is
postponed on the record from an advertised public meeting to a
subsequent date certain public meeting.
These factors also are evident in the several amici’s consistent
arguments as to why we should exercise our discretion to certify this issue
as a question of great public importance. For example, the municipal
attorneys’ association pertinently argues:
The [Fourth District’s] opinion may encourage the filing of
a challenge to any ordinance adopted at a meeting held
subsequent to a noticed meeting unless the ordinance was re-
advertised. Based on the [Fourth District’s] void ab initio
remedy, the result will be that municipalities may have to
defend police power enforcement actions taken pursuant to
these ordinances, rights or benefits granted or denied
pursuant to these ordinances, or any other action or activity
taken by a municipality pursuant to these ordinances. While
not all challenges will be successful, these challenges will
increase the volume of litigation and consume municipal and
judicial resources in addressing the challenges.
Because [the Fourth District’s] holding will be read to void
many ordinances throughout Florida, the [municipal
attorneys’ association] is concerned that [the Fourth District’s]
holding will lead to statewide litigation. This issue needs to
be addressed by the Florida Supreme Court so that it can
issue a decision conclusively resolving the issue statewide
without the delay and expense created by additional appeals
to the other five district courts of appeal by parties hoping to
obtain a conflicting decision.
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The opinion issued by [the Fourth District] on February 8,
2023, does not contain a certified question and it does not
express conflict with a decision of another [district court of
appeal]. The ability of the Appellees to obtain review at this
time in the Florida Supreme Court would be greatly assisted
by the inclusion of a certified question in [the Fourth
District’s] final opinion.
Thus, contrary to our colleague’s dissent, this question does not involve
“an extremely narrow principle of law” based on “unique facts.” Cf. State
v. Sowell, 734 So. 2d 421, 422 (Fla. 1999) (dismissing review as having
been improvidently granted because “the actual legal question deals with
an extremely narrow principle of law”); State v. Brooks, 788 So. 2d 247(Fla. 2001) (dismissing review as having been improvidently granted
because the certified question “addresse[d] a narrow question” based on
“unique facts”); Dade Cnty. Prop. Appraiser v. Lisboa, 737 So. 2d 1078,
1078 (Fla. 1999) (dismissing review as having been improvidently granted
because “the question to be answered require[d] consideration of a narrow
issue with very unique facts”).
Rather, as the amici cogently articulate, this case presents facts
commonly occurring statewide: an ordinance proposed for adoption is
initially advertised for a date certain public meeting in compliance with
section 166.041(3)(a), Florida Statutes (2018), and the proposed ordinance
is considered at the advertised public meeting, but the proposed adoption
is postponed on the record from the advertised public meeting to a
subsequent date certain public meeting. Those commonly occurring facts
raise a broad legal question applying statewide: whether section
166.041(3) requires the municipality to re-advertise the ordinance
proposed for adoption for the subsequent date certain public meeting in
compliance with section 166.041(3)(a).
For these reasons, we grant appellees’ motions to certify a question of
great public importance.
ARTAU, J., dissenting.
I dissent from the certification of the question deemed by the majority
to be one of great public importance. A district court of appeal should not
certify a question on “an extremely narrow principle of law” like the one
decided in this case. State v. Sowell, 734 So. 2d 421, 422 (Fla. 1999)
(dismissing review as having been improvidently granted because “the
actual legal question deals with an extremely narrow principle of law”); see
also, e.g., State v. Brooks, 788 So. 2d 247 (Fla. 2001) (dismissing review as
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having been improvidently granted because the certified question
“addresse[d] a narrow question” based on “unique facts”); Dade Cnty. Prop.
Appraiser v. Lisboa, 737 So. 2d 1078 (Fla. 1999) (dismissing review as
having been improvidently granted because “the question to be answered
require[d] consideration of a narrow issue with very unique facts”);
Sunshine Vistas Homeowners Ass’n v. Caruana, 597 So. 2d 809, 811 (Fla.
3d DCA 1992) (Schwartz, J., dissenting) (noting that district courts of
appeal “should not and, indeed, may not pass the buck to the supreme
court merely because a particular case is difficult or one of first
impression” because “[t]he constitution permits this to be done only if the
decision ‘passes upon a question . . . of great public importance’” (quoting
Art. V, § 3(b)(4), Fla. Const.)).
While I agree that any judicial determination that alters the statutorily
mandated public notice requirements by dispensing with the requirement
that the public be notified of the date, time, and place their government
will meet is a matter of great public importance, that is not the issue for
which the appellees seek certification of a question to our supreme court.
Instead, they seek certification because they do not believe they are
statutorily obligated to notify the public whenever the date and time of a
meeting to adopt an ordinance is postponed to another date and time that
has never been publicly advertised in compliance with section
166.041(3)(a), Fla. Stat. (2018).
Put simply, the issue presented in this appeal does not give rise to a
question of great public importance. Merely determining that a municipal
government is required to comply at minimal expense with the technical
public notice requirements set forth in section 166.041(3)(a) by timely
publishing notice containing the date, time, and place of a meeting in a
local newspaper of general circulation, is not an issue of great public
importance. See City of Jacksonville v. Huffman, 764 So. 2d 695, 696-97
(Fla. 1st DCA 2000) (“strict compliance with statutory notice requirements
is mandatory [and can only be waived if an affected] party appeared at the
[municipal] hearing and was able to fully and adequately present his or
her objections”).
To the extent the appellees wish to be relieved of the public notice
requirements mandated by the statute, it is my considered judgment that
they would need to take the matter up with the Legislature instead of our
supreme court. See, e.g., Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 228
(2008) (noting that a court is “not at liberty to rewrite [a] statute to reflect
a meaning [it] deem[s] more desirable”); Hill v. State, 143 So. 3d 981, 986
(Fla. 4th DCA 2014) (en banc) (noting that “[w]e are not at liberty” to
“rewrite” statutes).
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Thus, I respectfully dissent from certifying the question posited by the
majority.
* * *
No motions for rehearing directed to this
certification opinion shall be permitted.
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