Florida Community Association Construction Law Blog : Sarasota Construction Lawyer & Attorney : Tannenbaum Scro Law Firm : Florida, Tampa Bay

We are diverting from our usual construction-related topics to inform you of this serious threat to judicial independence in Florida.

On Friday, April 15th, the Florida House of Representatives passed HJR7111, a bill proposing amendments to the Florida constitution revamping the Supreme Court, giving the Legislature the authority to establish the rules of court and altering the judicial nomination process.  The bill is a transparent attempt by the Florida House of Representatives to rob the judiciary of its independence.

There is much wrong with this legislation.  Perhaps the worst element is the proposal to add three justices to the Supreme Court, split the court into two panels: one panel hearing only criminal cases and the other hearing only civil cases, and then assign the four most experienced justices to the criminal panel.  By no coincidence, the four senior judges led the majority on the panel which last year invalidated three proposed constitutional amendments proposed by the Legislature.  With judicial appointment being altered in the bill to provide the Governor with unbridled discretion to choose whomever he wishes to fill the new positions and to name the Chief Justice,  the adoption of the amendments will guarantee one party's control of all three branches of government.  This is a dangerous incursion into the separation of powers, a bedrock of our democracy.

For any of you who may be of the mind that this is "politics as usual" in the arena of court structuring and judicial appointments, understand that what this bill proposes is unprecedented not only in Florida, but nationally.  Every local and state bar association, and there are many from conservative districts, has come out against this legislation.  So have a number of former Florida Supreme Court justices, conservative and liberal.  Go to the Citizens for Fair and Impartial Courts website at www.fairandimpartial.com for their comments and several editorials on the issue.

Fortunately, one of our system's checks and balances is that in order to become law, the bill or something close to it must also clear the State Senate.  A companion bill has been introduced in the Senate, although it is unclear as to whether it is gaining traction.  If you are concerned about this threat to judicial independence, please contact your local State Senator and urge them to stop this dangerous legislation in its tracks.

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In 2009, as a response to severe droughts in the state, the Florida Legislature passed Senate Bill
2080. The Bill is now codified in Florida Statutes 720.3075(4).

The new law states that homeowner association documents "may not prohibit or be enforced so
as to prohibit any property owner from implementing Florida-friendly landscaping …"
Florida-friendly landscaping is defined in Florida Statute 373.185 as "quality landscapes that
conserve water, protect the environment, are adaptable to local conditions, and are drought
tolerant."

Further, the statute lays out the nine principles of Florida-friendly landscaping. The nine
principles are:

1. planting the right plant in the right place;
2. efficient watering;
3. appropriate fertilization;
4. mulching;
5. attraction of wildlife;
6. responsible management of yard pests;
7. recycling yard waste;
8. reduction of storm water runoff;
9. waterfront protection.

This law has a profound effect on the enforcement of homeowner association covenants, articles
and by-laws. The plain meaning of the statute is that restrictions which predate the law may now
be unenforceable.

In response to this new legislation, the Florida Extension Service has created numerous
publications written specifically for homeowner associations. The publications detail the law and
its implications. Visit http://fyn.ifas.ufl.edu/community_association_kit.htm

The publications include:

Florida-Friendly Landscaping Model Covenants, Conditions and Restrictions for New and Existing Community Associations.  fyn.ifas.ufl.edu/professionals/services.htm

A list of considerations for Florida-Friendly Landscaping™ guidelines for architectural review boards.  fyn.ifas.ufl.edu/materials/ARB_FFL_consideration_guidelines03_23_2011.pdf

Handbook—provides the basics of Florida-Friendly Landscaping™ with a summary of the nine principles; checklist for homeowner recognition of a Florida-Friendly Landscape.  fyn.ifas.ufl.edu/homeowners/publications.htm

The Florida-Friendly Landscaping™ Guide to Plant Selection and Landscape Design.  fyn.ifas.ufl.edu/pdf/FYN_Plant_Selection_Guide_v090110.pdf

Guidelines: What To Look For In A Landscape Maintenance Contract.  sarasota.extension.ufl.edu/fyn/Pubs/FYNCommunityGuidelines-Broc.pdf

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In Florida, under the "economic loss rule", a party is precluded from suing a party with whom it has contracted for negligence absent personal injury or property damage.  One exception carved out by the Florida Supreme Court has been for the negligence of "professionals", although the court did not specifically define what a "professional" is.  In the construction context, there has been no doubt that architects and engineers are "professionals."  Claims against them are not subject to the economic loss rule.  But what about land surveyors?

The issue of whether land surveyors are "professionals" excluded from the economic loss rule was decided by the Florida Fourth District Court of Appeal in Estate of Joanne Rocks v. McLaughlin Engineering Company, 49 So. 2d 823 (Fla. 4th DCA 2010).   They are.  In deciding this, the appellate court cited state statutes referring to land surveyors as professionals and relied in addition on the following attributes:

1.    surveyors are engaged by clients to perform a skilled service solely under their control and competence;

2.    the service performed by a surveyor is one requiring special education, training, experience and skill;

3.    the typical client is not competent to perform surveying personally nor direct that it be performed in a particular way; and

4.    the client/surveyor contract gives the client no power of direction and leaves performance up to the skill and expertise of the surveyor.
 

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