Lowe v. Broward County

• Decision Date: 20 September 2000
• Docket Number: No. 4D99-1664.,4D99-1664.
• Citation: 766 So.2d 1199
• Parties: Lawrence LOWE, Appellant, v. BROWARD COUNTY, Appellee.
• Court: Florida District Court of Appeals

766 So.2d 1199

Lawrence LOWE, Appellant, v. BROWARD COUNTY, Appellee.

No. 4D99-1664.

District Court of Appeal of Florida, Fourth District.

September 20, 2000.

M. Glen Curran of Curran and Curran, Fort Lauderdale, Jordan W. Lorence, and Jonathan P. Gundlach of Northstar Legal Center, Fairfax, Virginia, for appellant.

Edward A. Dion, County Attorney for Broward County, Andrew J. Meyers, Chief Appellate Counsel, and Tamara M. Scrudders, Assistant County Attorney, Fort Lauderdale, for appellee.

Dean J. Trantalis, Lighthouse Point, Stephen R. Scarborough, and Marvin Peguese of Lambda Legal Defense and Education Fund, Inc., Atlanta, Georgia for Amicus Curiae-Broward County Log Cabin Republican Club of Florida, Congregation Etz Chaim, The Dolphin Democratic Club, Equality Florida, Fort Lauderdale Business Network, Gay and Lesbian Community Center of Fort Lauderdale, Gays United Against Repression and Discrimination, Parents, Families, and Friends of Lesbians and Gays, Political Advocacy Coalition Political Action Committee, and The Sunshine Cathedral Metropolitan Community Church.

GROSS, J.

This case concerns the constitutionality of the Broward County Domestic Partnership Act under Article VIII, Section 1(g) of the Florida Constitution. Except for one section which is severable from the Act, we hold that the ordinance is constitutional.

In January 1999, the Board of County Commissioners of Broward County ("Board") enacted Ordinance 199-03, the Broward County Domestic Partnership Act of 1999 ("DPA" or "Act"). The Act, as amended, became effective on April 27, 1999. The amended version of the Act is the subject of this appeal.¹

The Domestic Partnership Act

Section 16½-151 contains the legislative findings of the Board. The Board found that "there are many individuals who establish and maintain a significant personal, emotional, and economic relationship with another individual" and that "[i]ndividuals forming such domestic partnerships often live in a committed relationship." BROWARD CO., FLA.CODE § 16½-151(a) (1999). The section focuses on the problem of the denial of employment benefits to domestic partners:

Domestic partners are often denied public and private sector benefits because there is no established system for such relationships to be registered or recognized. In addition, because of the status of their relationship, domestic partners in many cases are not extended certain employment benefits that are otherwise made available to other employees.

Id. After recognizing the importance of employment benefits to an employee's compensation package, the ordinance makes the legislative finding that

the provision of domestic partner benefits promotes employee recruitment, employee retention, and employee loyalty. Furthermore, the provision of such benefits promotes fairness and serves to address the discriminatory effect of practices which deny such benefits solely upon the basis of an employee's familial or marital status.

BROWARD CO., FLA.CODE § 16½-151(d) (1999).

The Act defines "domestic partners" as "only two adults who are parties to a valid domestic partnership relationship and who meet the requisites for a valid domestic partnership relationship as established pursuant to section 16½-153." BROWARD CO., FLA.CODE § 16½-152(e) (1999). The "requisites for a valid domestic partnership relationship" are contained in section 16½-153(b), which requires that in a declaration of a domestic partnership each partner must swear or affirm that:

(1) Each person is at least 18 years old and competent to contract;

(2) Neither person is married nor a partner to another domestic partnership relationship;

(3) They are not related by blood;

(4) Consent of either person to the domestic partnership relationship has not been obtained by force, duress, or fraud; and

(5) Each person agrees to be jointly responsible for each other's basic food and shelter.

BROWARD CO., FLA.CODE § 16½-153(b)(1)-(5) (1999). A domestic partner of a county employee is defined as a "dependent" with regard to domestic partnership benefits. BROWARD CO., FLA.CODE § 16½-152(f) (1999). Whether a partner qualifies as a dependent "shall be based solely on whether such person is supported, in whole or in part, by the County employee's earnings and relies on such support." Id. A "valid domestic partnership relationship" may be registered under the Act by the filing of "a declaration of domestic partnership with the Broward County Records Division" which complies with the requirements of the Act. BROWARD CO., FLA.CODE § ½-153(a) (1999).

Once a domestic partnership relationship has been registered under the Act, either partner may terminate it "by filing a notarized declaration of termination" with the County Records Division. BROWARD CO., FLA.CODE § 16½-154(a) (1999). The domestic partnership relationship automatically terminates if one of the partners "enters into a legal marriage or dies." BROWARD CO., FLA.CODE § 16½-154(b) & (c) (1999).

The major effect of the Act is to extend benefits and privileges to a domestic partner or to a dependent of such domestic partner.² A county employee is "entitled to elect insurance coverage for his or her domestic partner or a dependent of such domestic partner on the same basis in which any County employee may elect insurance coverage for his or her spouse or dependents." BROWARD CO., FLA.CODE § 16½-156(a) (1999). A county employee may use all forms of leave provided by the county, such as "sick leave, annual leave, family illness leave and bereavement leave to care for his or her domestic partner or the dependent of the domestic partner." BROWARD CO., FLA.CODE § 16½-156(b) (1999). Unless prohibited by state or federal law, any other benefit available to the spouse and dependents of a county employee "shall be made available on the same basis to the domestic partner" and dependent of such partner. BROWARD CO., FLA.CODE § 16½-156(c) (1999).

The DPA also grants domestic partners visitation rights at health care, licensed residential, county correctional, and juvenile detention facilities. BROWARD CO., FLA. CODE §§ 16½-158, 16½-161 (1999). Under the Act, a registered domestic partner has "the same right as any other individual to be designated as health care surrogate of his or her domestic partner pursuant to Part II of Chapter 765, Florida Statutes" and as "preneed guardian pursuant to section 744.3045, Florida Statutes." BROWARD CO., FLA.CODE §§ 16½-159, 16½-160 (1999).

The Litigation in the Circuit Court

In February 1999, appellant Lawrence Lowe filed a declaratory judgment action under Chapter 86, Florida Statutes (1999). He alleged that he was a resident of Broward County and a property owner and taxpayer there. Lowe's complaint sought a ruling that the DPA violated Article VIII, Section 1(g) of the Florida Constitution. The county moved to dismiss arguing that Lowe lacked standing to challenge the Act. The circuit judge held that Lowe had standing to bring the case, a finding that the county has not cross-appealed.³ The county filed its answer on April 9, 1999. Lowe filed motions for summary judgment. The trial court's April 30, 1999 final judgment rejected Lowe's constitutional challenge and denied his request for declaratory and injunctive relief.

Constitutional Parameters of the Self Governing Power of a Charter County

Lowe contends that the Act violates Article VIII, Section 1(g) of the Florida Constitution, which provides in pertinent part:

Counties operating under county charters shall have all powers of local self-government not inconsistent with general law, or with special law approved by the vote of the electors. The governing body of a county operating under a charter may enact county ordinances not inconsistent with general law.

The bases of Lowe's constitutional argument are that the Act improperly encroaches upon an area of exclusive state authority and that it conflicts with Florida law.

We begin with the applicable standard of review. "A trial court decision on the constitutionality of a statute is reviewed by the de novo standard, because it presents a pure issue of law. The appellate court is not required to defer to the judgment of the trial court." State, Dep't of Ins. v. Keys Title & Abstract Co., 741 So.2d 599, 601 (Fla. 1st DCA 1999),rev. denied, No. SC96906, ___ So.2d ___ (Fla. July 24, 2000). "A regularly enacted ordinance will be presumed to be valid until the contrary is shown, and a party who seeks to overthrow such an ordinance has the burden of establishing its invalidity." State ex rel. Office Realty Co. v. Ehinger, 46 So.2d 601, 602 (Fla.1950) (citation omitted). An appellate court will "indulge every reasonable presumption in favor of an ordinance's constitutionality." City of Pompano Beach v. Capalbo, 455 So.2d 468, 469 (Fla. 4th DCA 1984).

As political subdivisions of the state, counties "derive their sovereign powers exclusively from the state." Hollywood, Inc. v. Broward County, 431 So.2d 606, 609 (Fla. 4th DCA 1983). A charter county such as Broward County obtains its sovereign powers through Article VIII, Section 1(g) of the state constitution. See id. The supreme court has "broadly interpreted the self-governing powers granted charter counties under article VIII, section 1(g)." State v. Broward County, 468 So.2d 965, 969 (Fla.1985).

The legislature has accorded counties broad self-governing powers. Section 125.01(1), Florida Statutes (1999), "grants to the governing body of a county the full power to carry on county government." Speer v. Olson, 367 So.2d 207, 211 (Fla. 1978). Section 125.01(3)(a), Florida Statutes (1999), states that the powers enumerated in the section "shall not be deemed exclusive or restrictive, but shall be deemed to incorporate all implied powers necessary or incident to carrying out such powers enumerated, including, specifically, authority to employ personnel...." Section 125.01(3)(b), Florida Statutes (1999), provides that the...