Department of Community Affairs v. Holmes County
| Decision Date | 05 March 1996 |
| Docket Number | No. 95-2224,95-2224 |
| Citation | 668 So.2d 1096 |
| Parties | 21 Fla. L. Weekly D588 DEPARTMENT OF COMMUNITY AFFAIRS, Appellant, v. HOLMES COUNTY, Washington County, and Gulf County, Appellees. |
| Court | Florida District Court of Appeals |
An appeal from the Circuit Court for Holmes County; Russell A. Cole, Jr., Judge.
Alfred O. Bragg, III, Robert C. Byerts, and David L. Jordan, Tallahassee, for Appellant.
Thomas Gerald Holley, Chipley, and Barbara S. Sanders, Apalachicola, for Appellees.
Alan C. Sundberg, W. Douglas Hall, and Michael P. Donaldson of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Tallahassee, for Amicus Curiae, the City of Tallahassee, Leon County, and Wakulla County.
This action, filed by Holmes County and Washington County in the Circuit Court of the Fourteenth Circuit in Holmes County, seeks to enjoin the Florida Department of Community Affairs (DCA) from allocating and distributing certain federal disaster assistance funds to Leon County, Wakulla County, and the City of Tallahassee without first affording the Plaintiff Counties an opportunity to compete for a portion of such funds. On the Plaintiff Counties' motion pursuant to rule 1.610, Florida Rules of Civil Procedure, the trial court entered a temporary injunction without notice and hearing, and DCA moved to dissolve the temporary injunction or, alternatively, to require the Plaintiff Counties to post a bond. 1 DCA also moved to transfer this action to the Second Circuit in Leon County based on DCA's venue privilege to defend this action in the county wherein its headquarters are located. After an evidentiary hearing, the trial court entered an order denying both motions, and DCA brings this appeal to review that order. 2 We hold that the trial court erred in granting the temporary injunction because the Plaintiff Counties did not establish a legal right to participate in the allocation and distribution of the subject federal disaster assistance funds. We also hold that the trial court erred in applying the "sword-wielder" exception to deny transfer of venue to the circuit court in Leon County. Accordingly, we reverse the appealed order, vacate the order granting the temporary injunction, and remand with directions.
On May 19, 1995, the Plaintiff Counties filed their complaint for a permanent injunction against DCA, and that same day the trial court entered the temporary injunction under review. On May 25, DCA served its motion to transfer venue and motion to dissolve the temporary injunction. On May 30, the day before the hearing on DCA's motions, the Plaintiff Counties filed a First Amended Complaint. As the amended complaint substantially tracks the language of the initial complaint but with additional allegations that DCA's action deprives the Plaintiff Counties of their right to due process of law under the federal and state constitutions, in this discussion we shall refer to the allegations in the amended complaint.
The Plaintiff Counties allege that they are suing as a political subdivision of the state 3 to enjoin DCA from allocating and distributing the subject federal disaster assistance funds. DCA is the state agency responsible for the distribution and administration of such funds at the state level. The Plaintiff Counties allege that Congress appropriated approximately $42,900,000 in Community Development Block Grant funds for flood relief related to Tropical Storm Alberto; that the Plaintiff Counties lie in the declared disaster area for Northwest Florida; that, in January 1995, $22,200,000 of those flood relief funds was released to DCA and divided among Franklin County and the cities of Caryville, Chattahoochee, Bonifay, and Blountstown; and that the remaining $20,700,000 of those funds was intended for flood relief in the other areas affected by Tropical Storm Alberto that lie within the declared disaster area, of which the Plaintiff Counties are a part. The complaint then alleges that:
7. Prior to the release of the remaining $20,700,000.00 to DCA, an intense political power struggle arose to divert these monies outside the declared disaster area, to the City of Tallahassee, Leon County and Wakulla County. As a result of this political action, and as a direct result of an amendment to the Congressional Funding Legislation introduced by Congressman Pete Peterson, the funds were diverted from the declared disaster area, and earmarked for the City of Tallahassee, Leon County and Wakulla County.
The complaint further alleges that Plaintiff Counties, being within the declared disaster areas, have within their unincorporated areas a large amount of eligible flood damage for which they have not received any disaster funding; that the City of Tallahassee, Leon County, and Wakulla County were not within the disaster area declared for Tropical Storm Alberto; that an amendment to the congressional funding legislation adding the words "and other disasters" to the appropriation legislation "was introduced and passed as an integral part of the political power struggle initiated to divert the funds outside the declared disaster area"; that the "decision to divert the funds at the Congressional level from the declared disaster area was strictly a political decision, based on votes and not on need based criteria"; that the $20,700,000 has been released to DCA; and that, although "DCA has the authority to amend its Community Development Block Grant final statement, and redistribute the funds based on need criteria, and not on politics," it has insisted that Plaintiff Counties negotiate with Tallahassee and Leon County to share a portion of these funds, which the counties were doing. The complaint then alleges:
14. Although it is acknowledged that discretion is, and should be involved in the allocation of CDBG [Community Development Block Grant] funds, the diverting of the funds in question by Congress, and the refusal to redistribute the funds by DCA, are both clear abuses of discretion. Both decisions were made solely on political consideration, and not based on any reasonable need criteria.
15. DCA's refusal to reallocate and redistribute the funds violates the constitutional right of due process of law, afforded the Plaintiff counties by both the federal and state constitutions. These funds should have been allocated on the basis of where the most severe damage and need was located, and the arbitrary refusal and failure of DCA to reallocate the funds based on severity of damage and need violates and infringes upon the Plaintiff counties' constitutional right of due process of law. [The allegations in this paragraph were added in the amended complaint.]
16. CDBG funds allocated to the neighborhood revitalization category are set aside for use in any local government jurisdiction for which an emergency or natural disaster has been declared. Applications are accepted only from applicants who have been declared to be in a state of emergency by executive order. The amendment of the Congressional Funding Legislation to include "other disasters" circumvents the customary allocation policy, and further demonstrates the political nature of the decision.
17. If DCA is allowed to contract the funds in question with the City of Tallahassee, Leon County and Wakulla County, both of the Plaintiff Counties will suffer irreparable harm in that hundreds of residents within their respective jurisdiction will receive no funding to relocate or rebuild. A decreasing tax base will result, and the Plaintiff Counties will incur tremendous expenses in providing relief for these residents. Both Counties will also face the prospect of dealing with similar disasters in the future, because of the inability of the affected residents to relocate.
18. Plaintiff Counties are in need of an immediate temporary injunction without notice, or with limited notice, because of the shortness of the time required to finalize the execution of contracts. Any notice to Defendant [DCA] would trigger a desperate attempt to finalize the contracts. Plaintiffs have no other adequate remedy in law or equity. The attempted negotiations broke down late in the day of Thursday, May 18, 1995, and the decision to file suit was finalized during the night of May 18, 1995.
The amended complaint concluded with a prayer for entry of a temporary injunction and a permanent injunction
unless and until Defendant, DCA, amends its allocation of said funds based on demonstrated severity of damage and need criteria; makes its reallocation based upon elements of fairness, and applies due process of law to the Plaintiff Counties in its reallocation process; and distributes an equitable portion of said funds within the declared disaster areas of the Plaintiff Counties.
In the order granting a temporary injunction, the trial court found that:
the Plaintiff Counties will suffer immediate irreparable injury unless a temporary injunction is issued at this time; the injury likely to be suffered is that numerous residents living within the declared disaster area will be without funding help to relocate or upgrade, thereby imposing additional financial burdens on the Plaintiff Counties to help and protect them, both now and in the future; and that a temporary injunction should be issued without notice or with limited notice provided, due to the immediate nature of the irreparable injury, and due to the very real possibility that further and better notice would render the injunctive relief unavailable due to the funds being encumbered.
The court then ordered that:
A temporary injunction is hereby issued, enjoining the Defendant, State of Florida Department of Community Affairs, from contracting or distributing or otherwise encumbering the $20,900,000.00 [sic] in flood relief disaster funds, with any governmental unit or body or other applicant, until further order of this court.
No reference was made to any factual basis or any statutory or other legal...
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