January 3, 2012

Florida Capital Update: January 2012

Holland & Knight Update
Nathan A. Adams IV | Kevin Cox

Capital Policy Making

Governor Releases the Budget for Fiscal Year 2012-13

Governor Rick Scott recently released his budget recommendations to the Florida Legislature for the upcoming 2012-2013 fiscal year. In keeping with his commitment of not raising taxes, Governor Scott has proposed a balanced budget that closes an estimated $2.5 billion budget deficit mainly through spending reductions. Targeted spending cuts include roughly $1.8 billion in payments to hospitals serving Medicaid patients, equating to a roughly 40 percent reduction in Medicaid payments. On the other hand, Governor Scott recommended a $1 billion increase in education spending. Under the proposal, per student funding would increase from the current amount of roughly $6,262 to $6,372. Governor Scott also is recommending a reduction in the state’s corporate income tax.


Legislative Session Focused on Redistricting and Budget to Commence in January

The Florida Legislature convenes for its annual 60-day regular legislative session on January 10, 2012. Redistricting is a major focus, along with a balanced budget for the current fiscal year. For a copy of the Florida House and Senate’s proposed 2012 redistricting map, click below.


First Drug Wholesale Distributor Advisory Council Meeting Held at DBPR

On December 6, 2011, Florida’s Drug Wholesale Distributor Advisory Council held its first meeting since responsibility for regulation of drugs, devices and cosmetics was transferred to the Department of Business and Professional Regulation (DBPR) from the Department of Health on October 1, 2011. Ken Lawson, secretary of DBPR, addressed the council and indicated that DPBR wants to “send a message that, in the state of Florida, we are partners in protecting the drug supply and making sure the rules are clear.” Section 499.01211, Florida Statutes, requires the council to meet once per quarter. The council’s duties include providing input on proposed rules, as well as making recommendations regarding improving the protection of prescription drugs and public health; improving coordination with other regulatory agencies concerning wholesale distribution of drugs; and minimizing the impact of regulation of the wholesale distribution industry while ensuring the protection of public health. During its meeting, the council discussed recent drug shortage issues, housekeeping items relating to the transition to DBPR, possible rule changes and controlled substance reporting.

Capital Courts

Divided Appeals Court Rules That Circuit Court Can Decide Adequacy Challenge to Public Education

In Haridopolos v. Citizens for Strong Schs., Inc., Case No. 1D10-6285 (Fla. 1st DCA Nov. 23, 2011), a divided court of appeal denied the state’s petition for writ of prohibition, which would have prevented further proceedings in the circuit court over whether the state is compliant with Article IX, section 1(a) of the Florida Constitution, concerning Florida’s “paramount duty ... to make adequate provision for the education of all children residing within its borders.” The provision adds, “Adequate provision shall be made by law for a uniform, efficient, safe, secure, and high quality system of free public schools that allows students to obtain a high quality education.” Petitioners argued primarily on the basis of Coalition for Adequacy & Fairness in Sch. Funding, Inc. v. Chiles, 680 So. 2d 400 (Fla. 1996), that the complaint for declaratory relief raised only nonjusticiable “political” questions. The circuit court denied the petitioners’ motion to dismiss, whereupon they filed the request for extraordinary relief by way of prohibition.

In an 8-7 vote, the court of appeal denied the petitioners’ request for the writ, asserting that in three separate opinions “at least a majority of the justices ... were of the view that the circuit court had jurisdiction to decide claims of constitutional inadequacy.” The court found that (1) in Coalition for Adequacy and Fairness in Sch. Funding, Inc. v. Chiles, 680 So. 2d 400 (Fla. 1996), Justice Overton cast the deciding vote in concurrence and suggested that a complaint could state a cause of action for inadequacy; (2) in Bush v. Holmes, 919 So. 2d 392, 404 (Fla. 2006), the court observed that an amendment to Article IX, section 1 was intended to “‘provide constitutional standards to measure the ‘adequacy’ provision found in the second sentence of section 1;’” and (3) in Sch. Bd. of Miami-Dade County v. King, 940 So. 2d 593, 602 (Fla. 1st DCA 2006), the court stated in dicta that “any citizen/taxpayer may bring a declaratory action to challenge the constitutionality of provisions in a general appropriations act, including a claim that the state has failed to make adequate provision for a uniform system of free public schools... .” The court also certified the issue to the Florida Supreme Court for review.

Circuit Court Rules That Amendment 7 Must Be Stricken From Ballot, But Leaves Open Possibility of Correcting the Deficiency

In Shapiro v. Browning, Case No. 2011-CA-1892 (Fla. 2d Cir. Ct. Dec. 13, 2011), Circuit Judge Terry Lewis handed down a ruling on cross-summary judgment motions that at least temporarily removed from the November ballot a proposed constitutional amendment that would repeal Florida’s “Blaine Amendment” (a provision that bans certain public funding of churches and other religious organizations). The ruling stopped short of giving either side all the requested relief. The court held that a specific provision in the ballot summary was misleading and was, thus, legally defective. While this was a victory for opponents of the proposed amendment, the victory may be short-lived because the court laid out a roadmap to correct the defect in the ballot language. The court also held that a statutory provision allowing the Florida Attorney General to fix defective ballot summary language is constitutional. Adopting the recommendation of the court, the Attorney General has now released a revised ballot summary to accompany the proposed constitutional amendment.

Former State Senator Nancy Argenziano Challenges Florida’s Election Law in Second Circuit

In Argenziano v. Browning, Case No. 2011-CA-003484 (Fla. 2d Cir. Ct. filed Dec. 9, 2011), former state Senator Nancy Argenziano is challenging as unconstitutional the requirement that in order to qualify for nomination as a candidate of a political party, a person must sign an oath that he or she “has not been a registered member of any other political party for 365 days before the beginning of qualifying preceding the general election for which the person seeks to qualify.” Known as the disaffiliation clause, the challenged provision was part of the election law passed in the 2011 Florida legislative session.

The provision bars Senator Argenziano from qualifying as a Democratic candidate for Congress because she registered as an “independent” on June 3, 2011, becoming a member of the Independent Party of Florida. The qualifying period for the congressional election begins on June 4, 2012. Senator Argenziano argues that the provision violates the Florida Constitution as an unnecessary restraint on her right to seek elective office, a denial of equal protection, and a violation of her political association and participation rights. She also claims federal constitutional violations.

Capital Rules and Variances

The Florida Department of Education has begun rule development to amend the sections of rule pertaining to the calculation of school grades and to include new components in the school grades formula consistent with section 1008.34, Florida Statutes. A rule development workshop will be held in Florida as follows: January 4 in Tallahassee; January 5 in Orlando; and January 6 in Coconut Creek.


The Florida Commission for Independent Education has announced that it plans to modify the documentation and standards required of licensed institutions during provisional and beginning annual licensure to assist the commission in making determinations of financial soundness. A rule development workshop will be held in Howey-in-the-Hills, Florida, on January 3, 2012.


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