Parsons v. City of Jacksonville

• Decision Date: 01 May 2020
• Docket Number: No. 1D18-284,1D18-284
• Citation: 295 So.3d 892
• Parties: John PARSONS, Liberty Ambulance Service, Inc., Robert Assaf, Diamond D Ranch, Inc., and Michael Griffin, Appellants, v. CITY OF JACKSONVILLE, Florida, a municipal corporation and political subdivision of the State of Florida, Appellee.
• Court: Florida District Court of Appeals

295 So.3d 892

John PARSONS, Liberty Ambulance Service, Inc., Robert Assaf, Diamond D Ranch, Inc., and Michael Griffin, Appellants,

v.CITY OF JACKSONVILLE, Florida, a municipal corporation and political subdivision of the State of Florida, Appellee.

No. 1D18-284

District Court of Appeal of Florida, First District.

May 1, 2020

Mathew D. Staver, Horatio G. Mihet, and Roger K. Gannam of Liberty Counsel, Orlando, for Appellants.

Jason Teal, Deputy General Counsel, Craig D. Feiser, Assistant General Counsel, and Gabriella C. Young, Assistant General Counsel, Office of General Counsel, Jacksonville, for Appellee.

Kelsey, J.

We have for review a final order dismissing with prejudice Appellants’ amended declaratory judgment suit against the City of Jacksonville. Appellants alleged that 2017 amendments to the City's human rights ordinance (HRO) were "null and void" because their adoption violated state law, the City's Ordinance Code, and City Council rules. Appellants alleged they were deprived of their right to adequate notice, and that they had suffered or will suffer injuries to their rights of privacy, religious conscience, and business interests under the Code as amended. The City argues that dismissal with prejudice was appropriate because Appellants lacked standing and because Appellants’ claims became moot after the City recodified its entire Ordinance Code. For the reasons that follow, and without reaching the substantive merits of Appellants’ claims, we reverse.

I. Facts.

The City amended its HRO in 2017 to add sexual orientation and gender identity to twenty-eight sections and subsections of existing non-discrimination provisions in its Code, and to make related changes. See Jacksonville, Fla., Ordinance 2017-15-E (Feb. 14, 2017). The City's public notices listed the Code number of each section and subsection to be amended, but neither the published version of the proposed amendments nor the legal notice of the scheduled public meeting set out in full or in part the titles of the affected provisions, the text of the ordinance provisions to be amended, or the text of the provisions as amended. No published notice specified or set out in full context where and how the amendatory language would be inserted in the various Code provisions. According to the record on appeal, here is what was published on the two main parts:

Section 2. Amending Sections 60.105, 400.101, 400.301, 402.102, 402.107(g)(1), 402.107(g)(3), 402.201, 402.202, 402.203, 402.204, 402.206, 402.210, 402.211, 406.102, 406.104(g)(1), 406.104(g)(3), 406.201, 408.102, 408.204, 408.401, 408.402, 408.403, 408.404, 408.406, and 408.407, Ordinance Code.

The foregoing sections of the Ordinance Code are hereby amended as follows: wherever protected categories are listed, that sexual orientation and gender identity, as defined in Section 3 below, shall be added to the list.

Section 3. Amending Sections 402.107, 406.104, and 408.105, Ordinance Code. The foregoing sections of the Ordinance Code are hereby amended as follows:

(a) Wherever definitions are provided, the definition of sexual orientation shall be added and shall mean an individual's actual or perceived orientation as heterosexual, homosexual, or bisexual.

(b) Wherever definitions are provided, the definition of gender identity shall be added and shall mean the gender-related identity, appearance, or expression of a person. Gender identity may be demonstrated by a person's consistent and uniform assertion of a particular gender identity, appearance or expression, or by any other evidence that a person's gender identity is sincerely held, provided, however, that gender identity shall not be asserted for any improper, illegal or criminal purpose.

Instead of setting out the full text of the amendments in context, the proposed ordinance stated that the City's office of general counsel would write the amended ordinance later. That had not happened yet when Appellants filed their original or amended complaints. There was no full-text version of each amended provision showing the insertion of new language.

Appellant Parsons filed suit, alleging that the notice was flawed under section 166.041 of the Florida Statutes as well as under the City's own Code and rules, and that this rendered the ordinance void and unenforceable. Very shortly after that lawsuit was filed, and for the first time since 1990, the City enacted a new ordinance to recodify its entire Ordinance Code. The City's stated goal was to "cur[e] any defects in title, single subject defects or other procedural defects" in all previously enacted ordinances, including the one at issue here. See Jacksonville, Fla., Ordinance 2017-236-E (Apr. 27, 2017).

The City moved to dismiss Parsons's original complaint for lack of standing, also asserting mootness because of the recodification. The lower tribunal dismissed the original complaint for lack of allegations demonstrating standing, without prejudice to amend. Parsons and three new plaintiffs (the Appellants here), filed an amended complaint, asserting standing on two grounds: as parties entitled to notice under section 166.041 of the Florida Statutes, and because the amendments would affect them adversely. The amended complaint again alleged that the adoption and publication was incomplete and invalid, making the ordinance void. The lower tribunal again dismissed the pleading, this time with prejudice as to both the sole original plaintiff (Parsons) and the plaintiffs added in the amended complaint. This appeal follows.

II. Analysis.

A. Standing.

We agree with Appellants that they had standing to challenge the ordinance. Under Florida law, no special injury is required for actions attacking void ordinances; i.e., ordinances adopted without proper notice or legislative authority, or in excess of police powers. Renard v. Dade Cty. , 261 So. 2d 832, 838 (Fla. 1972) (holding "[a]ny affected resident, citizen or property owner of the governmental unit in question has standing to challenge" an ordinance that is void as improperly enacted); David v. City of Dunedin , 473 So. 2d 304, 305–06 (Fla. 2d DCA 1985) (no special injury required for general attack on validity of ordinance for failure to comply with section 166.041(3) ). The governing statute requires only that a person be "entitled to actual or constructive notice [of the proposed adoption of an ordinance or resolution]" to have standing, and Appellants satisfied that requirement. See § 166.041(7), Fla. Stat. (2017) ; see also Martin Cty. Conservation All. v. Martin Cty. , 73 So. 3d 856, 864 (Fla. 1st DCA 2011) (explaining Florida Legislature broadly granted standing pursuant to statute); Godheim v. City of Tampa , 426 So. 2d 1084, 1088 (Fla. 2d DCA 1983) (taxpayer included count for Sunshine Law violation, and while agreeing no taxpayer standing on other issues raised, court explained Sunshine Law, "on its face, gives the appellant standing without regard to whether he suffered a special injury").

In addition, Appellants sufficiently alleged that the City's ordinance violated section 166.041(2), which provides that "No ordinance shall be revised or amended by reference to its title only. Ordinances to revise or amend shall set out in full the revised or amended act or section or subsection or paragraph of a section or subsection." § 166.041(2), Fla. Stat. Courts applying the statute have held that its intent is to preclude "enactment of amendatory statutes in terms so blind that legislators themselves were sometimes deceived in regard to their effect, and the public, from the difficulty in making the necessary examination and comparison, failed to become apprised of the changes made in the laws." Lipe v. City of Miami , 141 So. 2d 738, 742 (Fla. 1962) (quoting Van Pelt v. Hilliard , 75 Fla. 792, 78 So. 693, 698 (1918) ); see Jackson v. Consol. Gov't of City of Jacksonville , 225 So. 2d 497, 508 (Fla. 1969) ("[E]nough of the act being amended must be republished to make the meaning of the provision published intelligible from its language and to insure that no unexpected meaning results from the combination of that language and other language in the act."); Auto Owners Ins. Co. v. Hillsborough Cty. Aviation Auth. , 153 So. 2d 722, 725 (Fla. 1963) (holding that to fully inform the government and the public about proposed changes, "it is required that when a specific section or subsection is being amended it should be republished with the proposed amendment so that an examination of the Act itself will reflect the changes contemplated, as well as their impact on the amended statute"); City of Hallandale v. Zachar , 371 So. 2d 186, 188–89 (Fla. 4th DCA 1979) (quoting Jackson , 225 So. 2d at 507–08 ). As Appellants alleged, and the City does not dispute, the City did not comply with this requirement. This brings Appellants within the scope of standing to challenge a void ordinance.¹

Even if Appellants were required to demonstrate special injury, they did so by alleging in their amended complaint, among other things, that the ordinance encumbered their free exercise of speech and religious freedoms individually and in their business activities. Appellants admit they included these allegations solely to support their standing in response to the City's arguments, and not for adjudication of those claims, so we do not pass upon their merits. Nevertheless, Appellants’ allegations were legally sufficient to demonstrate standing to assert a pre-enforcement challenge to the enactment of what they alleged was an unconstitutionally overbroad regulation of free speech and free exercise of religion. See J.L.S. v. State , 947 So. 2d 641, 644 (Fla. 3d DCA 2007) (" ‘Hypothetical consequences’ are considered in the case of allegedly overbroad statutes precisely because this is the only way to give effect to the constitutional right of free speech." (quoting Schmitt v. State , 590 So. 2d 404, 411–12 (Fla. 1991) )); see also Wyche v. State , 619 So. 2d 231, 235 (Fla. 1993) (d...