Barry v. Garcia

• Decision Date: 15 January 1991
• Docket Number: No. 89-1784,89-1784
• Parties: 16 Fla. L. Weekly 195 Richard M. BARRY, individually, and as Chairman of the AD HOC Independent Review Panel of the City of Miami, Elmira Brown, Lt. Franklin E. Christmas, 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, Appellants, v. Martin GARCIA, individually, and as President of Hispanic Officers Association, Albert Pamareiga, a Police Officer with the City of Miami, Appellees.
• Court: Florida District Court of Appeals

Page 932

573 So.2d 932

16 Fla. L. Weekly 195

Richard M. BARRY, individually, and as Chairman of the AD HOC Independent Review Panel of the City of Miami, Elmira Brown, Lt. Franklin E. Christmas, 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, Appellants, v. Martin GARCIA, individually, and as President of Hispanic Officers Association, Albert Pamareiga, a Police Officer with the City of Miami, Appellees.

No. 89-1784.

District Court of Appeal of Florida,

Third District.

Jan. 15, 1991.

Harold Long, Jr., Miami, for appellants.

Klausner & Cohen and Robert Klausner, Miami, for appellees.

Jorge L. Fernandez, City Atty. and Albertine B. Smith and Kathryn S. Pecko, Asst. City Attys., for City of Miami, as amicus curiae.

Before SCHWARTZ, C.J., and BARKDULL and JORGENSON, JJ.

BARKDULL, Judge.

Appellants, the Chairman and members of the Ad Hoc Independent Review Panel of the City of Miami, appeal a final order discharging an order to show cause and dismissing a petition for contempt with prejudice. We find no error in the trial court's determination that the City Commission of the City of Miami had no authority to grant subpoena power to an independent investigatory body, consisting of nonelected officials.

On January 18, 1989, the Ad Hoc Independent Review Panel was created by the adoption of Resolution 89-84 by the City Commission of the City of Miami and was charged with the responsibility of "(a) investigating and reviewing community relations between police officers and the residents in the Overtown area and (b) reporting its findings and making its recommendations to the City Commission ..." The Ad Hoc Independent Review Panel was created by the Miami City Commission as a result of and response to civil disturbances that occurred within the city limits in January 1989. ¹ Section 3 of Resolution 89-84 purported to grant subpoena power to the investigative panel "to the extent permitted by law ..." Subsequently, the Ad Hoc Independent Review Panel issued subpoenas to Martin Garcia, President of the Hispanic Officers Association of the City of Miami and Albert Pamareiga, a City of Miami police officer, directing them to appear before it and give testimony pertinent to the causes of the civil disturbances in Overtown. Both Garcia and Parmareiga refused to testify and did not appear at the scheduled place and time.

Thereafter, the Ad Hoc Independent Review Panel filed a petition requesting the court to, (1) require the respondents to show cause why they should not be adjudged guilty of and punished for contempt as a consequence of disregarding the subpoenas, and (2) adjudicate the respondents guilty of contempt, but give them an opportunity to purge themselves of contempt by appearing before the Ad Hoc Independent Review Panel and rendering testimony in accordance with the subpoenas. The trial court issued an order to show cause and found, inter alia, "[t]hat by Resolution 89-84 of the City Commission of the City of Miami, the Ad Hoc Independent Review Panel was given subpoena powers to conduct an investigation for, and on behalf of the City Commission."

The respondents then filed a response to the order to show cause and moved the trial court to transfer the cause to another division of the circuit court, where there was a case pending that sought a declaration that Resolution 89-84 was invalid, to the extent it granted subpoena power to the Ad Hoc Independent Review Panel. An order was entered transferring the cause to the requested division of the circuit court and a hearing was held on the contempt petition.

At the hearing the respondents argued that the elements of contempt had not been established as a matter of law; that general administrative investigatory subpoenas were disapproved in the law; that the City Commission's attempt to delegate subpoena power to the Independent Review Panel was unlawful; that the city charter, as amended, expressly authorized only the City Commission and the Civil Service Board to issue investigatory subpoenas; that creation of the Independent Review Panel via resolution was an insufficient legislative act; that the subpoena power violated the collective bargaining agreement between the City of Miami and the Fraternal Order of Police; and that the Independent Review Panel lacked standing to bring this case.

In response the Petitioners argued that the subpoena power was lawfully delegated to the Ad Hoc Independent Review Panel in accordance with provisions of the Florida Constitution, the Municipal Home Rule Powers Act (Ch. 166, Fla.Stat.), and the Miami City Charter, Section 3(y).

After review of the record, hearing argument of counsel, and consideration of the cited authorities, the trial court entered an order discharging the order to show cause and dismissing the petition for contempt, with prejudice. In so ruling, the court found that as a matter of law, the Ad Hoc Independent Review Panel did not have the authority to issue subpoenas and to compel attendance of witnesses to its proceedings.

The appellants and the amicus curiae point to Article VIII, Section 2 of the Florida Constitution (1968), and Section 166.021(1), (4), Florida Statutes (1987), as giving the city the power to enact the resolution in question and make the delegation of subpoena power, because the legislative action meets both the municipal purposes test and was not expressly prohibited by the constitution, either general or special law, or county charter. City of Boca Raton v. Gidman, 440 So.2d 1277 (Fla.1983); City of Winter Park v. Montesi, 448 So.2d 1242 (Fla. 5th DCA), review denied, 456 So.2d 1182 (Fla.1984). We first note that Article VIII, Section 6(e), Florida Constitution (1968), specifically exempts Dade County and all municipalities therein, from the provisions of Article VIII, wherein it is precisely stated: "as if this article had not been adopted". ² Municipalities in Dade County are controlled by the provisions of Article VIII, Section 11, of the Florida Constitution of 1885, as amended in 1956, plus the provisions of the Metro Charter, until such time as the "county shall adopt a charter or home rule plan pursuant to [Article VIII of the Constitution of 1968]." This event has not occurred since the effective date of the 1968 Constitution.

The Home Rule Amendment was approved by the voters of Florida, in November, 1956. On May 21, 1957, the Home Rule Charter provided for in the amendment was approved by the electorate of Dade County and became effective sixty days thereafter. The Home Rule Amendment granted county government power over local affairs within Dade County, but it required Dade County to provide a method whereby the municipalities would have the power to make, amend, and repeal municipal charters. This power was formerly vested solely in the legislature, Article VIII, Section 11(g), Florida Constitution (1885), but in Dade County, that exclusive power has now been limited by the adoption of the Home Rule Amendment (1956), which specifically vests such power in the municipalities. Article VIII, Section 11(g) of the Florida Constitution of 1885 as amended, states in pertinent part that Dade County "[s]hall provide a method by which each municipal corporation in Dade County shall have the power to make, amend or repeal its own charter." The Florida Supreme Court noted in its first interpretation of the Dade Home Rule Charter that:

As part of the same subsection (Article VIII, Section 11(g)) it should be pointedly noted that the Constitution provides that upon the adoption of the home rule charter, "this method" (the method which the charter provides for municipalities to make, amend or repeal their charters) "shall be exclusive and the legislature shall have no power to amend or repeal the charter of any municipal corporation in Dade County."

Dade County v. Dade County League of Municipalities, 104 So.2d 512, 517 (Fla.1958).

The stated objective of the home rule legislation was to transfer the power the legislature had in passing local bills and special laws applicable only to Dade County, from the state to the Dade County Board of County Commissioners, and hence on to the municipalities. ³

The drafters of the Metropolitan Dade County Charter, as they were constitutionally required to do, provided a method whereby each municipality in Dade County could adopt, amend or revoke a charter for its own government. Metropolitan Dade County Charter, § 5.03(A). Pursuant to Section 5.03(A), the governing body of a Dade municipality must: (1) either adopt a resolution or certify a petition of ten percent of the qualified electors, (2) draft an amendment in a method determined by ordinance, (3) which must then be submitted to a vote and approved by a majority of the electors voting. ⁴

Our attention has been called to the following authority. State v. City of Miami, 379 So.2d 651 (Fla.1980); City of Miami Beach v. Forte Towers, Inc., 305 So.2d 764 (Fla.1974); Rolle v. City of Miami, 408 So.2d 642 (Fla. 3d DCA 1981). We note that only the Forte Towers case refers to the Constitution of 1968, and it permits general law to impact the municipal charter in Dade County only when the grant of power is in addition to those already held by the municipal corporation. See Forte Towers at 767, wherein the following is found.

[A]mendment to the city charter is not the only means by which additional powers may be conferred on a Dade County municipality. The Metro County charter section 5.02 provides that each municipality shall have the authority to exercise all powers relating to its local affairs not inconsistent with the charter.

City of Miami Beach v. Forte Towers, 305 So.2d 764 (Fla.1974) The other two cases make no reference to the Constitution of 1968 as it effects municipalities authorized under the provisions of the 1885 Constitution as amended, which is...