1992.10.14_PB_Minutes_Regulari
lJ
TOWN OF HIGHLAND BEACH
PLANNING BOARD
REGULAR MEETING - MINUTES
Wednesday, October 14, 1992
9:30 A.M.
Chairman Robert L. Lowe called the Regular Meeting to order in Commis-
sion Chambers at 9:30 A.M.
Deputy Town Clerk Doris Trinley called the roll. Present were the
Chairman, Vice Chairman Arthur R. Keller and Members Paul R. Kane, Jr.,
Frank L. Colarullo and James F. Morrill. Members Leonard D. Bell and
William Maltz were absent.
Also present were Town Attorney Thomas E. Sliney, Building Official
Lee Leffingwell and members of the general public.
Upon MOTION by MR. KELLER/MR. COLARULLO, the Minutes of the September 9
Regular Meeting were unanimously approved.
OLD BUSINESS
None.
NEW BUSINESS
Amended Site Plan Review for Swimming Pool and Satellite Dish at 3510
S. Ocean Blvd., Lot 85W (St. Lucy's Rectory). Submitted by Brang Co.
for the Diocese of Palm Beach (Owner).
Building Official Leffingwell said she had reviewed the amended site
plans and they did meet Code requirements; however she had requested
additional engineering information on the satellite dish, which was
received and attached to the plans.
Jim Fideli, owner of Brang Co. and General Contractor for the project,
next addressed the panel and answered questions to their satisfaction.
Areas of discussion included:
.Location of pool, which will be screened by a 6'
shadowbox fence, plus ficus hedges on east, south
and portion of west side. It was noted that although
plans do not show a self-locking gate, one would be
included. It was also noted the fence was an insurance
requirement rather than a Town Code requirement.
.The satellite dish would be placed on the south side
of the rectory and screened from view by a mature ficus
tree, which would be purchased specifically for this
purpose. An existing palm might also be employed for
screening purposes. It was also noted that the dish
would be free-standing and the pole sunk into concrete.
Planning Board
• Regular Meeting - Minutes
October 14, 1992 Page 2 of 4
.Regarding handicap access, it was explained that there
would be no steps leading to the front of the rectory
to be used by the public, rather access would be ramped.
.There was no objection from the members to the request
that the issuance of a Certificate of Occupancy not be
contingent on the addition of the pool and satellite dish.
Concluding discussion, MR. COLARULLO/MR. KANE made the following MOTION
which met with unanimous favorable vote.
THE PLANNING BOARD APPROVES AMENDED SITE PLAN FOR SWIMMING
POOL AND SATELLITE DISH AT 3510 S. OCEAN BLVD., LOT 85W
(ST. LUCY'S RECTORY). SUBMITTED BY BRANG CO. FOR THE DIOCESE
OF PALM BEACH (OWNER); W.T. PATTERSON, P.E., JOB TS-103,
DATED 7/13/92, SHEET 1 OF 1; DANIEL H. CARTER, LANDSCAPE
ARCHITECT, JOB 91-298 REV. 9/24/92 SHEET SY-3; E.N. TURANO,
ARCHITECT, SHEET SY-2R REVISED 9/24/92.
Preliminary Review for Single Family Residence at 2445 S. Ocean Blvd.,
Lot 129E (North). Submitted by H. Frank LaHage, Owner, Highland Beach
10 Associates, Inc.
John Conway, architect for the project, told the members this residence
would be two-story, approximately 9,000 sq. ft. and include a 4-car
garage and cabana.
Because a set of plans had been previously approved for Lot 129E
(North) at a Special Meeting on May 11, 1992, lengthy discussion en-
sued among the members, owner H. Frank LaHage and Town Attorney Sliney.
Mr. LaHage said the set of plans presented today were for a smaller
house (previously approved plans were for approximately 11,000 sq.ft.),
which was more in line with the size of the houses he had previously
built in the area; he added that he would like to build the 11,000
sq.ft. house on lot 129E South.
The members questioned if they could indeed review another set of plans
for the same site; Attorney Sliney advised that Town records must be
clear on as to what would be built on a specific site and in this case
the record should show that the the first set of plans had been aban-
doned. He also advised that Mr. Lahage would then have to re -submit
the original set of plans to the necessary Boards for approval to built
on 129E (South).
is
Planning Board
Regular Meeting - Minutes
October 14, 1992 Page 3 of 4
At this point in discussion MOTION was made by MR. KANE/MR. COLARULLO:
THE PLANNING BOARD APPROVES PLANS FOR A SINGLE FAMILY RESIDENCE
AT 2445 S. OCEAN BLVD., LOT 129E (NORTH), JOHN D. CONWAY, ARCHI-
TECT, JOB 0992124 DATED 9/23/92, SHEETS 1 THROUGH 8. THE PLANS
PREVIOUSLY SUBMITTED AND APPROVED ARE HEREBY ABANDONED BY THE
PROPERTY OWNER AND APPROVAL OF SAME IS HEREBY REVOKED BY THE
PLANNING BOARD.
The members then convened to the table for further review before vote.
During the ensuing discussion, attention focused on the concept that as
long as the plans were "site specific," it would seem that any number
of plans could be approved. And when a permit was finally pulled for
whatever plans were ultimately decided on, then approval of all other
plans would be negated.
Subsequently, after consultation between the Building Official and the
Town Attorney, it was ascertained that an applicant could have "x"
number of approved plans for the same site in that when a permit was
pulled for a specific set of plans, approval of the others would be
automatically negated. Also, it was noted that if no permit was pulled
within a year on any set of approved plans, approval would be null and
void.
It was, therefore, agreed that Mr. LaHage could have two approved sets
of plans for the same site, or for that matter come before the Board
for approval of any number of sets he desired, providing all plans
pertained to a "site specific." However, Mr. LaHage's request that the
first set of approved plans be assigned to the south portion of 129E,
was denied. Attorney Sliney reiterated that he must re -submit plans
to the necessary Boards, be they the first set of approved plans, or
different ones; plans must always be "site specific," and in this case
Mr. LaHage was asking that plans approved for Lot 129E (North) be
automatically approved for 129E (South), which could not be done. Mr.
Lahage accepted this conclusion and said he would possibly request a
Special Meeting of the Planning Board to submit the first set of
approved plans for Lot 129E (South).
Accordingly, Mr. Kane/Mr. Colarullo withdrew their previous Motion.
Following review and discussion, it was the consensus this could be a
final review and, on advice of Attorney Sliney, the following MOTION
was made by MR. COLARULLO/MR. KANE and met with unanimous favorable
vote:
THE PLANNING BOARD GIVES FINAL APPROVAL TO PLANS FOR A
SINGLE FAMILY RESIDENCE AT 2445 S. OCEAN BLVD., LOT
129E (NORTH). SUBMITTED BY JOHN D. CONWAY, ARCHITECT,
JOB 0992124 DATED 9/23/92, SHEETS 1 THROUGH 8.
Planning Board
Regular Meeting - Minutes
October 14, 1992 Page 4 of 4
Chairman Lowe then invited Attorney Sliney to detail information con-
tained in recent correspondence to Town Manager Mary Ann Mariano. Mr.
Sliney advised that the case he cited in the correspondence, Jennings
vs. Dade County, highlighted the need for Board members to avoid ex
parte communications with petitioners. A copy of the correspondence is
attached to and made part of these Minutes.
It was noted the next Regular Meeting date fell on a Holiday (Veterans
Day/November 11). It was the Consensus of the members that should
there be an agenda, the Regular Meeting would be held Thursday,
November 12.
There being no further business to come before the Board, the meeting
was adjourned upon MOTION by Mr. Morrill/Mr. Kane at 10:40 A.M.
dmt
APPROV '
Robert L. Lo , Chairman
(�A
e 0�61
Arthur R. Keller Vice C an
Padl R. Kane, Jr.
Flank L. COldrullo
orr
ATTEST:
DATE:
HODGSON, Russ, ANDREWS, WOODS & GOODYEAR j1
1800 ONE M S T PLAZA
BUFFALO, NY 14203
(716) 856 -4000
MET FAX (716) 849-0349
GUARANTY FAX (716) 852-5185
10
19
THREE CITY SQUARE
ALBANY, NY 12207
(518) 465-2333
FAX (518) 465-1567
THOMAS E. SLINEY
PARTNER
(A PARTNERSHIP INCLUDING PROFESSIONAL ASSOCIATIONS)
ATTORNEYS AT LAW
2000 GLADES ROAD, SUITE 400
BOCA RATON, FLORID& 33431
BOCA RATON (407) 394-0500
PALM BEACH (407) 736-2177
BROWARD (305) 764-2440
FAX (305) 427-4303
September 10, 1992
Mary Ann Mariano, Town Manager
3614 South Ocean Blvd.,
Highland Beach, Florida 33487
Dear Mary Ann:
RE: JENNINGS v DADE COUNTY
iJ
1401 NEW YORK AVENUE, N.W.
WASHINGTON, DC 20006
(202) 347-9898
FAX (202) 737- 1529
3 ROBERT SPECK PARKWAY, SUITE 880
MISSISSAUGA, ONT. CANADA L4Z 205
(PRACTICE RESTRICTED TO V.S. LAW)
(416) 566- 5061
FAX (416) 566-2049
I am enclosing a copy of a recent decision concerning ex
parte communications from Petitioners to Governmental Agencies with
Board Members. This case indicated that ex parte communications
from a Petitioner to Board Member should be avoided particularly if
the communications is in the nature of lobbying rather than
presenting facts to the Board Member.
I know in the past when questions of this nature have
come up Board Members have been reluctant to talk one on one with
Petitioners or their Representatives and this case would
substantiate that feeling.
I would appreciate it if you would disseminate a copy of
this case, and a copy of my letter, to the Chairman of the various
Boards in Town.
TES/t
Enclosure
Very,t'ruly yours,
ThZ%� L,
as E. Sliney
HUG-25-1992 14:17 FROM CITY OF 30CA RATON TO 913054274303 P.02
• CITY HALL • 201 WEST PALMETTO PARK ROAD • BOCA RATON. FLORIDA 33432.3795 • PHONE: (407) 393.7700
SUNCOM: (407) 922 7700
August S, 1992
CITY ATTORNEY MBMORAMUM NO. 92-78
TO: Mayor and City Council
FROM: crank S . B4rtolory4V
City Attorney
SUBJECT: Ex ParLe Communications with CouncilmcmberFs
This memo is to advise you regarding complying with the race nt
court decision of Jennings vs. Dade County. This decision as
issued by the Third District Court of Appeal late last ye r.
Recently the Florida Supreme Court has declined to review the
decision, therefore making the holding of the case applicablelin
all the Districts; in the state of Florida. I
j
A copy 'of the case and a memorandum furnished to several of the
City boards tv which the cast may apply is attached. ple me
read the attached memorandum as it contains a fuller explanation
of the case and suggestions to avoid the pitfalls. which May
arise as a result of !Ls applications.
While the language of the case is very broad. and all encompass-
ing, it appears that land use decisions, particularly.conditiin-
al use applications is the area in which the case will have the
most application to City Council. I know that individkal
members of the City Council axe ;requently contacted. by o-
ponents or opponents of a specific conditional use. ch
contacts fall within the activity which the Jennings case
appears to proscribe. I suggest that the individual council -
members consider following the suggestions contained. in the
attached memorandum when such contacts are made. Appeals from
the Community Appearance Board, and the Planning and Zoning
Board, sign code variances and the disposition of formal id
protests are instances to which this case may apply.
9 --+ AN EQUAL OPP0ATUN)TY EMPLOYER
AUG-25-1992 14:18 FROM CITY OF BOCA RATON
TO 913054274303 P.03
0
10
19
Mayor and City Council
Page 2
August 5, 1992
While we have always taken the position that resolutions qr t-
ang conditional use applications v:hich involve the approval � a
;site plan are legislative (not quasi-judicial) decisions, the
trend of the case law that such decisions are not legislative
but are quasi-judicial (thus, subject to the Jens case) is
clear.
It is important to note that, in order to get the relief
the case appears to authorize, it is necessary for an aggri
party to go to court, prove the communication and have a j
enter an order requiring a new hearing; however, it'is pru
to consider that virtually every quasi-judicial action of
City Council may. have that potential, especially -in tod
litigious climate.
If you have any questions or comments, please feel free
contact me.
FSH:gk
Enclosures
Huv �5-Ly9� 14:is FROM C'IFY OF 30CA RNTON
f0 913054274303 P.04
•
I[J
CITY HALL - 201 WEST PALMETTO PARK ROAO • DOCA RATOM r1_U1wA :12143Z•9 795 - PHION Q (407) 393.7700
SUNCONt (407) 922-7700
August 5, 1992
CITY ATTORNEY MEMORANDUM No. 92-80
TO: Code Enforcement Board
Civil service Board
zoning Board of Adjustment
Builders' Board of Adjus ent
FROx: Christine P. Tatum
Assistant City Attor y
SUBJECTS Ex pane Communications with Board Mombars
This memo is to advise you of the recent Court decision of
Jennings vs. Dade County. This decision was issued by the Third
Dlatriut Court of Appeal late last year. Recently tho Florida
Supreme Court has declined to review the decision.
Each of you sezvea on Boards which perform quasi-judicial
functions for the City of Roca Raton. A Board acts quaii-
judicially when it adjudicates private rights of -particular
persons ati:er a hearing, which complies with due process e-
quirements and makes finding of facts and conclusions of law`on
the disputed issues.
The Jennings case involves "ex parte" communications. A co -
unication is considered "ex parte" when it occurs Out of he
presence of all parties who will make a specific decision or
are entitled to be notified of the hearing at which the decistho
+on
will be made.
The Court in the Jennie s_ case held that when a Board
sitting in a quasi-judicial function receives an ex
contact, a presumption arias that the contact taus
decisionmaker receiving the communication to prejudge* the
and, unless the presumption of prejudice is rebutte
complaining party may be entitled to a new and complete h�
The Jennings case leaves many questions unanswered, whir
undoubtedly be the subject of litigation in the future. '
keep you apprised of any further developments in this are
in the interim, offer the following suggestions for deali
ex party communications on quasi-judicial matters:
• -� AN EQUAL OPPORTUNITY EMPLOYER —
r iuu ��-1 j`jc 14: 19 FROM C ` I-Y OF 30CA RA LON f O 913054274303 ` P.05
Code Enforcement Board August 5, 1992
. Civil Service Board Page 2
Zoning Board of Adjustment
Builders; Board of Adjustment
1. Any written ex parte communication relating to mat rs
Which will come before your Board should immediately be trans-
mitted to the Clerk of the Board for inclusion in the offic al
record of the case.
2. If it becomes apparent during a telephone call or oral
communication that the conversation relates to a quasi-judicial
matter which will come before your Board, please advise the
person communicating with you that such a conversation pis
inappropriate and could jeopardize the validity of the decisQon
regarding the matter to come before your Board. You sha ld
advise the person to submit the substance of the communicat on
to the Board in writing. If the communication continues, of er
Its conclusion, you should consider creating a written docum nt
reflecting that the communication occurred and relating the
substance of the communication. This document should be for-
warded to the clerk of the appropriate board for inclusion in
the official record of the proceeding which was the ._subject lof
the communication.
I have forwarded a copy of the opinion in the Jennings caselto
the attorney who represents your Board, so that they will'be
• prepared to answer any further inquiries you might have regaX
ing this matter. I
CPT:gk I
0
PUG-25—L99L4:20 FROM C'TY OF BOCA RATON TO 913054274303 P.06
If the party laud
ME a reepon se to
d could raise the:,'
'after final judgmi
1e legislature sous
i 768.72 would bi,
'is P-e 101y tlt4 V
idh ortzorari is ;i
q l&a the trial court°a;or
far proceedings consistent
concum
ises>trt with opinion."..'a:=.':
6hieomri on the autttorilp
Won u 54VVfL Ste also,
t d Inden cbo's
Sa Zd M Ma: 4th DCA
ere is no reasoii�,o
supreme court was riot
4;'I68.72, E'lorida Statutes,.
assume that the staid
v in the law. : irz.
petition is untimely fi4
f the protective veil;
suction for rebe'a" '
'readition of the 'd
the time for seel&
.
ME ItEHFARING s
identa' motion for'
Upon consideradaoa-by.
e adapt the panel 'dC&
decision. In all other
t motions for rehesiiu9
'We therefore quash:
rdera and remand for.
eat with the panel tiPiu;.
t, and DOWNEY,•:
WARNER, POLEN
UUM, JJ , concur.:
'3EM4MOS Y. DADE -COUNTY
ca.min ssa lug oR-%wI018L 1TN)
... STONE, J., dissents with opinion, with
-5rhich LL"'M, ELRSET and GU14T=% Milton a. JENNINGS, AP
concur.
$TONE, Judge, dissenting.
DADS COUNTY and i
..,,1 dissent for the reasons oTressed itt my Schatzman, AppolN
., t to the initial panel decision in this Nos. 88-1324, 88 -131
Appe2l-
tr
• O �YfrYOMItRiTSiN
Joseph BM, Petitioner,
T.
Julie SANDLER end Iris Sandler,
Respondents.
No. 9b-1684.
District Court of Appeal of Florida,
R AIrth Diatdci.
Dee. 27, 199L
Petition for writ of acrSormi to tho Cir-
cuit Court for Broward County; Lxanvnee
L. Korda, Judge.
ILT. Maloney of Fatterson, Maloney dt
Gardiner, Fort Lauderdale, for petitioner.
Wayne Kaplan of Kaplan do Gaylord,
P.A., Boca Raton, for respondents.
PER CURIAX
We grant the petition for certim-,sri and
quash the trial courVs order of May 24,
1991. See Henn R Sandier, M9 Sold
1384 (iris. 4th DCA 1991) (on motion for
rehearing en band).
GLICI{MM, C.S., and LEM and
GUNTHER, JJ., concur.
e #mN."Manal
' FditOer Noce The original opt„ no„ 4 ♦vgasr 6,
1"I is widmkawn from booed volume publkw
District Court of Appeal of
Third District
1337
Aug. 8, 1991.'
On Rehearing Granted Dec. ,199E
Landowner petitioned for 't of cer,
tiorad to challenge trial court er which
dismissed landowners count gists dine
process violation as result of ex cam-
mnnication between adjacent owner's
lobbyist and county couuaiesio before
vote approving use variance f adjacent
landowner, which .gave to lando4mw leave
to amend complaint only aga* county,
and winch denied motion to 446iss count
alleging nuisance ' as result of permitted
use. Tha TNxtrkt t'.anrt of Ane a, Nesbitt.
J. held on rehearing that: (1) 4 adowmes
timely ped dos activated eo a -law cer-
tiorari Jurisdiction; (2) lobbyisift ex parts
oommar$cation could Ticlate dine proeets
despite landowner's actual and c6trucUTe
knowledge of ex parte communi4stion; and
(� Iandotmet's prima fade sae I ex parts
contacts would give rise to pees ption of
prejudice and shift burden to �t land-
owner and county to rebut presuropr
lion. I
Quashed and ,remanded. i
Ferguaa% J.,: med ton g opinion
upon grant of rehearing.
e
L Zonim and Plannici; QM7
I=downer's timely Iipt ' activated
covunosrlaw certiorari jurisdighon to re-
Tiew trial eourt' order whiclil dismissed
count 41esting we parte co=q kation be-
tween adjacent landownees JdAyist and
county cornmissionera prior to , pmval of
Lien beeause it it OV►rae&d 1y a0vk- en
rehearing. .
AUG-25-1992 14: 21 FROM f ' TY OF BOCA RAFON TO 9130542?4303 P. 07
' 1338 Fla. 58' SOUTHFM REPORTER, 2d SERIES
variance, which gave to landowner leave to
amend complaint only against county and
to transfer matter to appellate division of
circuit wort, and which denied motion to
dismica count alleging that use permitted
by variance constituted nuiaaace; order
was dopartarc from essential iequkau3ents
of law and required plaintiff landowner to
litigate putative claim In proceeding that
could not afford relief ragllestad.
E. Zoning -,And Planning p741
No i`aiyediment elisted to exercise of
jurlsdiction over defendant landown,6, in
that common-law certiorari jurisdiction was
activntcd by plaintiff landowner's timely
petition.
a. Coaetltutionel Law 0 318(1)
Quality of due process required in qua-
si judielal hearing is not same as that to
which party to full judicial hearing is enti-
tled. West's F.B.A. Cont. Art. 1, § 9;
U.S.C.A.. Const.Amends. 5, 14.
4. Adrninlstrntlre Law and Procedure
4-311, 913
Quasi-judicial proceedings are not core.
trolled by strict rules of evidence and pro.
cedure.
5. ConatitutlonaI Law e=318CI) .
Quasi judicial dacinion based upon
record la not conclusive if minimal stan-
dards of due process are denied, West's
F.S.A. Cant Art. 1. § 9; 11-S-r—A. Coast.
Amends. 51 14.
d. COMUtutlosral Law tw" 418CI)
Quasi-judicial hearing generally meets,
basic due process requirementsif parties
are provided notloa of hearing and opportu.
pity to be heard. West's F.S.A. Consl. Art.
1, § 9i U.S-CA. C=LAmends. 5, 14.
7- Zoning and Planning q.-.359
In quasi-judicial zoning proceedings,
pa►•t;ee must be able W present evidence,
eross•cxazaine witnesses, and be informed
of ail facts upon which commission acts.
9. Constitutional Law 9=278.2(2)
Ex parts oommuaicetjon between Iaad.
owner's lobb7lst and county comrrtigriono..:
before tbey mooted to approve use variance.
for landowner could violate due process:
despite ad*vint ndowner's actual or corn -
Stru ti wlc of communication and
FSas .A. Cot Arsubpoena, 9; lobbyist
Coast
Amends. 5, 14.
9. Administrative Law and Procedure,
4=314
Ex parte communications are inheftat-
ly improper and are anathema to quasi•
judicial proceedings; quasi judicial officer
should avoid an such contacts where the,
%re identifiable.
10. Administrative I.aw sad Procedure .
0-J14
Occarreuce of ex parte communication
in quasi judicial proceeding does not man.
date autoundlo rerersaL
11. Administrative Law and Procedure
'4--wai4
Allegation of prejudice resulting from
ex parts eontacta wt'tb decision makers la .
quasi-judicial proceednrg states don. cause of ac- :
12. Administrative Law and procedure
4=314
171ron aggrieved party'a proof that ex
Parts contact occurred with decision mak•
ers is quasi-judicial proceedng. Its effect is
presumed to be }cGjudlc,;a1, unlcas dafen-
dant proves contrary by competence evi-
dence. West's F.S.A. § 9o.3o4.
13. Constitutional Law 'S.318(1)
In determining oejudl&] effect of ex
parte communication allegedly violating
due process in quasi&
al court should cons;
ria; what was gravi
aicatlon; whether cc
enced agency's ultir
party making imprc
from agency's ultin
contents of common
to apposing parties;
of agency's decisioi
proceedings would
West's P.S.A. Const
Const.Amends. 5, 1-
14. Counties 4=58
Allegation of pi&
rnaaication in quasi
fore county eornmi:
maintain original eq
to establish its clai
15. Counties C-68
Once claim of p
munication in quasi
fore County commis_
fending party will
absence of prejudic
16. Zoning and Pis
lr+rrdowner's p
parte contact be -
owner's lobbyist an,
before they voted t
for adjacent landov
presumption of pre
90 sos
f
1 17. Zoning and PIr
Laadowaven p
Paw contacts be
owner's lobbyist an,
they voted to app
jj adjacent landowner
county and 4acer
Presumption of pre
$ 90.304.
I& Zoning and Plt
To rebut pres
from ex parts cc
'Judie Darkdull Rani
N1JG-25-1992 14:22 FROM Ciry OF BOCA RATON TO 913054274303 P.08
JEMING3 Y. DADE COUNW Fla. 1339
eta, and bpi Informed
ich commission acts.
*to Y =9 li* ad 1337
due process in quasi: -judicial proceeding, tri-
(1R. Ar►.3 tl & t"11
owners lobbyist and county comruia3looers ,
al court should consider the following trite•
before they voted to approve. use variance
ria: what was gravity of ex parts commu-
for landowner, landowner could rely on any
nication; whether contacts may have influ-
favorable evidence presented during adja-
ication between land-
enced agency's ultimate decision; whether
cent landowners case -in -chief. including
aunty commissioners
party making improper contacts benefited
that adduced during cross-examination of
approve use virianeo
from agency's ultimate decision; whether
adjacent landowner's witnattes. West's
violate due proem
contents of communications wore unknown
F.S.A. 120.304.
wrier's actual or con-
to opposing parties; and whether vacating
,
t' communication and
of agency's decision on remand for new
e lobbyist, West's
proceedings would serve useful purpose.
1 9;, U.S.C.A. Cont.
West's F.S.A. Coast. Art. 1, 1 9: U.S.C.A.
Conat.Amends. 5, 14.
John G. Fletcher, South Miami, for appe!
lant.
aw and Procedure
Mentions are inherent
anathema to quasi•
quasi-judicial officer
contacts where they
0 and Procedure
parte communication
*ding does not man.
;al.
.aw and Procedure
judice resulting from
;h decision makers in
:ng 31aitc3 cause of ac-
Law and Procedure
party's proof that ex
Id with decision mak-
roceeding, its effect is
udiciaal, unions defen.
i by competence evi.
. § 90.304.
.aw G=3180)
mejudicial effect of ex
n Allegrully violating
34. Counties 4=58
Allegation of prejudicial ex parts com-
munication in quasi-judicial proccelOng be -
fare county wrnmittion enables party W
maintain orl&inal equitable cause of action
to establish its claim.
U. Counties a-0
Once claim of prejudicial ex parts com-
munication in quasi-judicial proceeding be-
fore county commission is established, of-
fending party will be required to prove
absence of prejudice.
16. Zoning and Planning 4-678
Landowner's prima facie case of ex
parte contact bctwoen adjacent land,
owner's lobbyist and county commissioners
before they voted to approve use variance
for adjacent landowner would give rise to
presumption of prejudice. West's F.S.A.
1 90.304.
Robert D. Kerner and Roland C. Robinr
son, Miami, Robert A. Ginsburg. Count
Atty.. and Eileen Ball Mehta and Craig
Coller. Asst. County Attys.. for appellees
Joel Y. Lumer. Miami, for The Sier
Club as ArokU3 Curiae.
Before BaKKDULL,• NESIIITr end
FERCUSON, JJ. {
17. Zoning and Planning 4=679
• Landowners prima facie rave of ox
parte contacts between adluimnt land -
owner's lobbyist and commissioners before
they voted to approve use variance for
adjacent landowner would shift burn to
county and adjacent landowner to rebut
presumption of prejudice. West's Pak
4 90.304.
18. Zoning and Planning en679
To rebut presumption of prejudice
from ex parts contacts between land-
' Judge llarkdull participated In dechlon only.
ON REHEARING GRANTED
NESB1717. Judge.
The insue we confront is the effect of in
cx partc communication upon a decisiin
emanating from a quasi judicial proccediAl;
of the Dade County Commission. Vile h4d-
that upon proof that a quasi-jud'tdal offieizr
ronived an ex part: contact, a presumpti n
arises, pursuant to section 90.304, Flo a
SuttuUm (089), that the cdntact was p u-
d'tvbel. The aggrieved party will be sill id
to a new and complete he firing efon . e
commission unless the defendant pm es
that the: communication was not, in f t.
prejudicial. For the reasons that folldw.
we quash the order under review with ldi-
rectiom.
Respondent Schattman -applied fora ar.
lance to permit him to operate
a quick oil
clia,ege buaineas on him property adjaeod to
that of petitioner Jennings. The Zooing
Appeals Board granted Schatzman's re-
quest. The etaunty communion upheld! he
1340 E9a. 589 SOUTHERN SWO97ER, 2d SERIES
boards decisioon. Sir days prior to the
commission's action, a lobbyist Schatsman
employed to assist him in connection with
the proceedings registered his identity as
required by section 2•111(s) of the Dade
County Ordinances. Jennings did not at-
tempt to determine the content of any cane
munication between the lobbyist and the
commission or otherwise challenge the Pro-
priety of any eommunkation prior to or.at
the hearing.
Following the commission order, Jen,
rings Ned an actim for declaratory and
injunctive relief in circuit court wherein he
alleged that Sebatamaa's lobbyist commu-
nicated with some or a0 of the county
commissioners prior to the vote, thus deny-
ing Jennings due process both under • the
United States and Florida constitutions as
well as section (W) of the Citizens' Bill of
+tights, Dade County Charter. Jennings
requested the court to conduct a hearing to
a
establish the truth of the allegations of the
complaint and upon a favorable deteruiiva-
i
tics then to issue an iz*medon prohibiting
use of the property as allowed by the coun-
ty. Based upon the identical allegations,
Jennings she claimed in the second count
f
of his complaint that Schatxmads; use of
'
the permittod variwaee constituted a nut-
. lance which be requested the court m err
j6hL The trial court dismissed Count I of
the complaint, against both Dade County
`
and Schatzman. The court gave Jennings
leave only against Dade County to amend
the complaint and to transfer the matter to
the appellate division of the circuit court.
The trial court denied Schabman's motion
'-`
to dismiss Count U and required him to file
'
an answer. Jennings then timely filed this
application for common kw cerdorari.
11. 21 We have inA3diciion based on the
following analysis. The trial courts order
dismissed Jennings' equitable claim of non-
's
rpx-rd ex party c ammunkations while it
simultaneously reserved Jurisdiction for
Jennings to amend his complaint so as to
seek common law certiorari review pursu-
ant to Dade County v Marta, SA, 326
Sa2d 188 (na.1976). Under Moss, Jen-
nings wouhd be entitled solely to a review
of the record as it now exist& However,
since the content of ax
rt paof the wdsting
would prohibit the
contacts' impact on the
minstim This order
so radically altering
Jennings that it is the
of requiring him to lit
fortup. Thus, Jenain
tiv tes our common
tioa because the ord
viewed a) constitutes a
essential requirement:+
quires hen to litigate i
proceeding that ¢annoy
fief requested and for d
afford h)m an adequap
tillo n Jdimma-. , 87 e
Norris u Soutihem f
824 So.2d 108 Wla. 4
same reasoning does]
Schatsman. Nonethell
jurisdiction, there is n
exercieing it over Se4
(3-7] At the outset
trial courts dismissal
quality of due procesei
judicial hearing is not�
which a • party to f>di
entitled.. See Gvw v.
96 S.Ct. 729, 42 L.EdA
v. Department of Aai
{Iaia»1982). Quasi-jucii
not controlled by stil
and procedure. See
Real Eviate Comm *
DCA I979r W ocdha,
Sold W (Fla. 1st
the)ess, certain standA
must be -adhered to in
process. Sege Hadtry
City of3 dwd V. fin*
Sd DCA•i9621. Consq
cial decision booed up
conclusiye if •nninimal t
trill are denied. Sq
Slate*, 298 U.S. 468,
911-12, 80 L.Fd.1288i
lent, his u Arizona;
Ariz. 541, 592 P.2d 3
quasi judicial heasiag jj
due process requiremi
provided notice of the
arta contacts is not
,cord, such rvv6w
ertainment of the
:ommission's dater.
s the effect then of
relief available to
incdonal equiralent
gate in a different
' timely petition ar
r certiorari jurisdia
sought to be re.
departure from the
of law, and b) rw
putative claim in a
afford him the re. J
hat reason does not r
remedy. Ste TWA
o.2d 412 (Fla195;
ill Tel. & T*L Co.,
t MA 1960). The f
not apply against:
se, because we have
i impediment to our
staraan as a part)+.4
of our review of the
we note that the
required in a Quasi•
the same as that to
judicial hearingL Is
:opus, 419 U.S. amp!
t 725 (1975); Hadley :
nia., 411 Sm2d 184
ial proceedings are i
:t roles of evidence i
Astors u Florida;
d74 So.2d to (Fla. 3d
R W. Williams W7 ,
DCA 1968). None•
r& of basic fairness -
order to afford dues
412 So.2d at 184;
a 139 S9.2d 518 (Fls.
iaantly, x quasi jadi-
)n the record is not
tandards of due pro-
hfoTaan V. United
I8041, 66 S.Ct. 906,
;1936); Western Gil- .
Corp. Comm 121
'S (CtApp.1979). A
enerally meets basic
ats if the parties are
hearing and an or
HUU �,—Lyy� 14: 24 F-WUM t ' l Y OF SUCH RATON TO 913054274303 P_ 10
Tpt Pane contacts is not
rt±cord. such } 3vir�w
"M me
.49 �liie
a° commission's deter
185
the effect then of
she' relief availabhs'bo
_"functional equivalent
tigate in a diifeiiit
timely petltfon ac.
4 law certforari jurisdia
girder sought to be ire.
We- dePa'tmm frot the
;pts of law, and b) re.
lie a putative claim in a
scot afford him the re-
for that reason does not
!site remedy See 7Un-
R kad 413 (Fla.I96s);
&It Tel & n4 Co,,
a lld DCA I960). The
Poet• not apply a92inst
!-!lees, because we have
t bo Impediment to our
&httautan as a party.
'of our review of the
•- ao note that the
regWrod in a quad -
at to
jttdfefal hearitlg fs
sci-fi--., ' 411 'So.2d I84
e;,
proceedings die
ales of evideswe
e 'u M id4
4 So.2d 40 {Fla, 3d
VIA
t< w.rr{az,Z4 2W
loss). Norte.
L�of>asic
"k Dider to afford 8ne
;! -411 S0.2d at 184;
.. 1ls9 Sold 513 (Fla,
�uT. a
� record is not
1M110dards of due pro.
^ited
, a 5 s.0n ILL906,
�.�>< Western. Gil
Comm "14 121
iCupp.;! ate}. A
meets basic
If the Ptfaa are
and se- op -
JENMGS v. DADE COUNTY Fj
Class= 3D.2d 1337
partunity to be heard. In quasi-judicial
0"A AM3 Drat 1"1)
quasi-judicial proceedings. Qm
MAU prvicet dlugs. the pirt es must* be
ofilcers• should avoid all sud
able to present evidence, sues -examine wit,.
where they are Ident raNe. Hq
tresses, and be informed of 4 the facts
recognize the reality that carol
upon which the oom kvion acts. (;Drat
me e1mbed offic4ala In which p
ta
Reef Nuraerieg Inc. v. Babcock Co. 410
may unavoidably be the reapita
So.2d 648, 662 (Fla. 3d DCA 1982).1
licited ex parbe cominunicatiom
The reported decisions considering the
gwsi fadioia2 znatt— thcy ore i
due process effect of an ex pane commuar
The ocaarreace of such a comma
cation upon a quasi-judicial decision are
it gaasi-ludicial proceeding does,
conflicting. Some oousts }old that an ex
(ktP iuttomatie reversal. Nevertl
party communication does not deny due
hold that the allegation of prejn
Process where the substance of the comma
'was
ing from ex party contacts with,
nicatien capable of discovery by the
lion makers in a quasi-judicial
comPlaining ply in time to rebut it on the
states a cause of action. T
record So% &p., Ricitarti'eott v6 per%*
Manapment; PATCO. Upon tIi
402 U.S. M. 410, 91 S.Ct. 1420, 14311-n.
ed parry's proof that an ex par
28 L.Ecl.2d 842 (1971); United Air Lira,
occurred, its effect is presumed to
Iran V. C.A.B., W9 F.2d 238 (D.C.Cfr.19 ft
diciai unless the defendant prove
darrogt v &rimer, 225 F.Supp. 827, CU
trary by competent evidence.
(D.D.C.1964). Other courts focus upon the
See p merctUy C4ld%VUl a Lhvis
nature of the ex pane communication and
tfriemewt, 372 So.2d 438 (t't'1a.197.
whether it was material to the point that it
eunion of rebuttable presumpti
prejudiced.the complaining party and thus
jug the burden od prvofl. Becai
resulted in a denial of procedural due pro-
edge and evidence of the tmntac,
cess.. Mg., Waste Mortagemeat tc Pohl`►
are peculiarly in the stands of the!
Lien Cvn6rat Bd, 175 Iil.tlppAI 10P3, 125
qum jttdklal olficer(s)► we r d a
IILDec. 524, 630 N.E.2d 682 (Ct.App.19ft
den appropriate. Ste 9'aclartfco
appeal deafed, 125 I11.2d 675, 180 MDer-
Sys w AmeHezUe, 479 So.2d 81
400, 537 N.i:.2d M9 (108fi , Profoaaianai
DCA 19W, Alielale Ana»oe'
Air Trnfjia Controdiem Org •(pAX()) x
XrnWMaet, 40 F.2d 740 (6th
1ilederal Labor Belatiom Aft., s8S Fad
SV, 664- U (D-C'.C.a' jM*, Erdmas tt
jl3i In delermittitt the
8 prep
Iagraha*4 28 A.D.2d 5► 280 N.Y.S.2d 8W,
feet of an ex Pate communicatia
870 (Ct.App.1961).
dourt sbould consider the followi
[61 The county adopts the first po$Wm
which we adopt from PATCO, 61
564_ ft.
and argues that leanings was not denied
due process because he either knew or
(whhether, as a result of ink
should buys known of an ex parts comzau
p communicatSons, the age -
slonmamg p was
nica,don due to the mandatory registration
required of lobbyists. The eoanty further
tainted so as to make tul4i
he
onntpnzlt< that IPnnings faiieli 1a argil him-
mint of the agency >zlthe
ei
au iiuiocvai party or to the P>
self of section =416.of the Dade County
Code to' subpoena the lobbyist to testify at
set that the agency was ob%
the hearing so as to detect and refute the
tecL In making tbh deterni
number of coe►siderationa z+na;
content of any ex parts communicatim
We disagree with the couaiy's position
vast:
vast: the gravity, of the ex par
[9-121 1x parte communi=Uons are in.
Whether the coat
have influenced the agency's nJ
herentlJ improper and are anathema W
cision; whether the party m
I. It was conceded at oral t dzat dlu
�8+�n
hearins Wore the commission in this arse was
gtzasiitzdidai.
1341
contacts
ever, we
icy they
of unso•
o decide-
ication in
not man-
Kless, wR
ce result.
the ded-
,, Waste
ARTHew
s contact
be preju-
the em
J 90.304.
M of Be -
(for dis-
c affect-
ie lmowl-
's impact
h a bur-
1 TWso
ma. 9d
vrP. tR
4cia1 ef-
the trial
critesia
F.2d at
r ex
deci-
ate judg-
ter as to
tic inter
i to pro-
cation, a
be rele-
contmu-
:ta may
mate de.
Ling the
^emu—G�-177G 1";e5 r-KUM 1''Y U- dUCR RRTON
TO 913054214303 P_11
1342 Fla. 689 SOUTHERN REPORTER, Zd SERIES
improper contacts benefited from the
agenuy'a ultimate dacnion; whether the
f contents of the commtmirations were un.
known to opposing parties, who thet+e-
tore had no opportunity to respond: and
whether vacation of the agWM:y's deem
t sion and remand for new proceedings
would oft-ve a useful parpose. Since the
? • principal concerns of the court are the
. integrity of the process and the fairness
t of the result, incohoulatl rules have little
i place in a judicial de ciaion whether to
radate a voidable agency proceeding. In-
stead, say such decWon must of ineows.
ty be an exercise of equitable man.
Accord E did N HauWW, Iu4. a Pallutiorn
Control Bd, 116 M App.8d 586, 71 I11.Dee.
587, 603, 451 N.E.2d 556, 571(CtApp.19831
Wd, 107 I11.2d $3, 89 M.Dec. 821. 481
1 • N.Wd 664 (1986).
(14,15] Accordingly, we bold that the
allegation of a prejudicial ex party comma-
tu""t in a quasiyudidal proceeding 1W
fore the Dade County Commission will en-
able a party to mabWa an orkftal eq.
uitable causo of action to aatablish ifs
claim. Once established, the offending par-
ty will be required to prove an absence of
prajatdiao.:
-131 In the present case, Jennings'
complaint does not allege that any comma
I= nicatian which did occur caused lum prW-
= dice. Consequently, we direct that upon
rmand Jennings shall be afforded an
op-portunity to amend his complaint. Vpon
such an amendment; Jennings shall be pro-
` Tided an evidentiary hearing to present his
pcc prima fame case that ex parts contacts
occurred. Upon such proof, prejudi w shall
r be presumed. The burden will then shift to
the respondents tv sebut the preamnption
r that prejudice occurred to the claimant-
' 2. In suck a proo"ris, the prinewes and am -
lass of equity use appscable. Jae Z2 f-Wur.2d
Equity 2g 44. at seq. (1950).
3. Ira rclawtins the presumption of preitadice. re-
ernndent may rely on any favorable evidence
s presented during the dainmies caaeeain chicf in.
eluding that adduced during rvWondeat's crown
examination of claimant's wlmesses.
4. Vnder die ?AIM rasa adupwil, v+ae at eke
primary concerns is whether the ea parts cou>•
Should the rerspondenta p�''�
idence to dispel the prea>i
wM become the duty of d
determine the claim in ligli
deem in the case."
For the foregoing read
Lion for common law testis
The order& of the clrj
quashed i and nemsaded i
BARKMi4 J, contra
FERGUSON, Judge (duo
I concur in the mult an
ky to address two argume
lees: (1) This court in Co,
itm !na a Nabcoak Ca. 41
34 DCA 19M, r0ecteid s
goriza county commission
trict boundary changes
while treating hearings of
special exceptions or vari
judicial"; and• . M the pe;
state a cause of action b,
that a Iobbyist discusses
private meeting with mem
ty Commission prior w 0
clear from Judge Nesbitt;
court that neither artun
Legislativv and Qi
in supper C of its argt
Court has previously re,
categorize county Comm
district boundary cmmg
while treating hearings
special vacaptions or vi
judicial',- Dude Gtanty
XU7Mrierr, JkM V. Babm
So.2d 648 Ma. ad DCA
ment is made for the P1
this ease withitl what tl
ntuateatiao•had sufficient
ston and, therefore, whelf
agencys decision and net
accding would be likely
3. Nothtttg in tins aedston
ing in Iptrh Waftwt Leap
tux Cowuy. 448 Sold 117
(countf commission actin
pacity).
,ce enough ev.
ption, then it
trial judge to
of all the evi.
the applies-
is
court n am
l directions.
write separat'.
to of the appel
t1 Rol Nurser.
i So.28 848 Ma.
tesapts to sate.
aesrings on diet-
s "legislative,"
applications for
ne" as "quasi -
honer does not
alleging simply
the cane In a
an of tale Coatr
i hearing. It Is
opinion for the
Mt is accepted.
m% that ' [tpnis
ted attempts to
Eon hearings on
as 'legislative',
applications for
mces as 'q=6
Les Caml Ric/
Company, 410
1M. The argu-
mose of bringing
respondents de•
pact upon the dled-
the vacation of d=
id for a new pro
champ the result
l affect our bold-
d,aaioa v. Mon -
la. M = 1984)
a le0a9vs es.
riUV 2�-1'�y2 14:26 FROM C `Y OF BOCA RATON ro 913054274303 P.12
JF.NMGS T. DAD$ COUNTY l
k ate m ses said IJ37 QU AM 3 248L 19911
hsttrlbe as a legielative-function exception to oorditions by maldag a new
,,the rule against ex parte commmicatmns. applied thereafter to all or sc
,iWeed, there is language in the Coral Ralf' those subject to its power.
-optnlon, particularly the dk'ta that "it Is the Steburkn Afsdical Cext4m 597
• ebaractxr of the admiuistsstiye hearing (quoting ! yentis 1. Attantte
3ksdirig to the action of the administrative
,'body that determines the labor as legiala-
tivo or quasi-judicial, Coral ,gee/ at 668,
'which, when read out of context, lends
support to Dade County's contentions. As
�sn abatraat proposition, the statement is
inaccarate.
Whereas the character of an administra-
,tive hearing wall dr!tprmine whether the
proceeding is quasi-judicial or executive, De
,Grwt v Shqffiald, 95 S%24 912, 915 (Fla.
-ISM. it is the nature of the act performed
.that determines its character as It &lxtive
.or otherwise. ,S'uburkn Medfeal Center
o Olathe Community Xosp, 226 Kan.
: W. 828,:697 P.2d 564, 661(1979). Sets also
;:Walgretn Co. K Polk County, 524 80.2d
1119. 1120 (Fla- 2d DCA 198M ('The qml
judicial nature of a proceeding is rim al-
Iered by nler'e procedural flaws.17.
A Judicial inquiry layesopAes, declares
and ezzforces liabilities as U W stand an
present facts and under laws supposed
already to slot. That is its purpose and
end. Leglaktion, on tilt other band,
leaks to the future grad cbaitgea erdatitlg
.L , Relyin; on Costal Rerj, the maje»ity dpiaioa
.4 raters to "quasi Judlc lai zoning peoceeeanim' a
eonkundlog phrase which has its =coeds in
Rtaker Mah riab Carµ v, 1let4 Cettnry. SU
= 8a2d 904, 906, n. 2 (FL. 3d DCA 19a7). There
Dade County argued to this COW that the ao
cording of prooedunt due proocss' p eoavexts a
leg(siaiira vc@w1tg into a quadjadfi:W pro
ecedlm Mug Coral Reif. Tba proposition
runs 9f" at in entire body of admtrasttative
law. If an ad is in easenoc (egisbttiva in dwar,
Car, the fact of a notice and a hearing does neat
transform it into a judicis3 act. if it wvnld be a
10&18tive act without notice and a heaastag, it is
still a leaislstive act with notice and a hearing.
Set P„ cants Y. Aslant% Coast Line Co« 221 U.S.
210. 29 Sr_L 67,33 L13d. 150 (t9o8): Reogevt v.
F&r m—'Lear & 7}urt CA, 1A U.S. 362, 14 3.tt.
1047.38 LFA 1014 (18%).
A variance is a modification of the zoning
6'11,i"aw which may be granted whc a such
variance will not be coonary to the public inter.
an and when, gyring -to conditions peculiar to
the property and' not the melt of the actions of
eh4 apylleant. a Jacual eatorcawc at of the wJi-
nance wand nsult in unnecessary and undue
Ca., 211 U.S. 210, 226, 29 S.CL
LPA 150 (1908)).t
It is settled that the am"
amending of toning ordinances i;
tine function —by case law, Schal-
of drfiami Broth, 112 33,.2d 83a
NwAado a Mttagrom 519 Som
8d DCA 1987) (en bane). nv. (p
So-2d 694 (8'taAM), by ststut4
162MSI and 166.041, Florid
(1989), and by ordinance, Dad
Code # 85-W8. See alto Anders
Zaning, J Lla (24 FdA976) (zt
legislative act representing a
judgment as to how land withl
should be utilized sad where ti
demarcation between the sevt
should be drawn); 101 C.J.S. Zt
Land Manning it 1 (1968) (mu,
also fairly settled- in this stau
granting of variances.= and st.
Owns or perutits, are quasi -Judi
W4rgran Ca is PQ& County,
1119, U20 (Fla. 2d DCA 19881
New Smyrna Beads u aart,,N
642 (1; & bth DCA) (Cowart, J., i
hardtltip. 7 Flalur2d, Bcdil tln& .
LdRd Conn%* it 140 (19-15).
Tina normal Function of a variant
toil a change In ' Widmg restrwtiq
and density n,nitrAnne but not
Use Ckl dEcasoffi". GWrV v. A
Voles; 154 5a2d 729 (Pia. 3d Dd
3. An admire4madve, body Aenc cp A
wban it atift4catft private rights of
person after a hearing which comps
psuees requiremerits, said makes
facts and conch dom oaf law on t
isstta. Reviewing courts tan'utino
ciai acts by aott•defemmal judicia
Sm My of Apopka v. Orange Carte,
457 (Fla. 4th DCA 1974).
On review of lc9blative acts, the i
a deferential inquiry, ia. is the axe
attiotasry ataltnrhy "fairly debatsli
wW Rancho ft mowwwrs Ass)t
CotauX 502 Sold 931 (Ra. 41b DG
nfoe( 311 So.2d 9" (F12.1937i. iuc�
no taquimment. that a government]
ins iu Ica Iesialauvo capactry, supr
with 1310nga of fact and axtclud
1343
to be
part of
d at 661
rt Line
,69,58
tent and
a lagisle-
er v. City
829 (Pita.
1W ii29
sections
Statutes
County
a, Lazo of
tins{ is a
the city
lines of
tl Zones
Ong and
Q. It is
that the
d excep-
actions.0
24 So2d
city of
14 8o2d
and
i is to per.
s or hetight
change in
nd Jhemr
1963).
paticuiar
svdth due
Lndix p,�roo
qmi judi-
standards
299 So.2d
wrt makes
dse of dis•
L.Jowl,-
, Brvward
0,re,da
er, tbetre is
fir, mi-
tts acdons
-is of law.
HUG-25-1992 14:29 FROM r-TY OF BOCK RATON TO 913054274303 P.14
gums-judlew and leg
rain land nee cases,
R�/► in acw dl�C
Q' iding only that leghhl
t lication for rezp�p�
e stied on a subsequent
�e same rezoning, Unless
E sbow Substantial and nu.
i eiccumstancea. ?+rsfger
675 So.2d 218 (Fla, 8d
ling oa Coral Reef: An
t; carol Res/ as holding
),longer a distinction be.
.'actions and quasi-judicial
commission in land use .
,.-Qd the actual holding of
i.:clgariy erroneoua. ,gam
be respondents on Izcaik
ey America v Jfonine
LN . 1170 (Fla. 3d ,DCA
1. tnaplaced- In that. es e
otty commissioners. when
eiris4tive capscdties. have
W state their views- on
mxttem. laaak Walton
Wdreu the issue of ei
iota or prehearing pro.
�i iwiasl Proceedings.
here that the behind.
! of the 00mmivdoner3
r..the purpose of influeno.
Q as appeal from a quasi•
;: violated the Cfbzens,
t. the Dade County char,
-due process provisions of
a�-
a. to'PornsaitY. or the use of
M°a� of bills, PuW1c as pc11
n"olve sates to the pmmotem
*wme stu of 1UShtN Dade
dies in pe"inent Pam
e et'br hearing to which ra
y bycextiorirl a Vorty or his
11etled to pnaest his C s or
ar documentary evidence to
�ot acx, and to coudusuch
*Ibp a a theft facft or
bbbouuponnthe
MOMS Y. STATE Fla, 13
*%Msn 8644 tsst VJ&ApP.Z0bt, 1"1)
the United States and h99rida C.onstitu (1979). Adherence to procedura
Clone. We agree, obviously, that the lobby- suit fairness Ilia essential act a
ing actions were unlawful. Dade County legal validity of the administrat
and Schatzman respond that Jennings is tion, but also to the ntainten
eaaa
entitled to no solid because he h" not e0niidence in the value and soli alleged and demanatrsted a resulting prqu- this important Ebert pa'o!
diae. In the opinion on rehearing tl& court WP.2d at 662 (cftg 2 Arm Jur l now clearly rajauttq that arsnment,
istmOV0 Law 0 351)L The cots
Prejudice is to be presumed, without fur cotupaisions which led to the esti
ther proof, from the mere fact that any of rules rep=Ung the disqualf�
county Commissioner gsaatsd s privntc as-- judge apply with equal force to
dience to a lobbyist< whose purpose was to banal exercising judicial or qua
solicit the eommiasioner to vote a certain fnncdOrls. 1 Am,Jar.2d Admi
way in all administrative proceeding for Lam I (34 at goo (1962)C GVdbr oJS
reasons not'neetssan7y addressed $olely to Use V. Ptori'da Pula Swot C(M
the merits of the pttition. and that the So-24 620 (M-19M) (standard to
commissioner did vott accordingly, Start. gualifying keney hands same
ing with the legal definition of lobbying, used in disqualifying judge). .$eq
M. note • 4 supra, and applying eommon eta v. Friedman, 4W F`.Supg, SC4
knowledge as to how the practice works, 1-97') (rule as to diagF-Sup , 4 there ie a compelling reason for placing the is ion
ranee for administrative agenci
burden of proving no prejudice on the part,Y for courts Davis,Ad
responsible for the ex parte mmunica- fin Law ¢ 1204, at 260 (citing IL vis, ).
lion. Board of Commlrs of Adams G
Although an ex pane communication Wash.2d 503, $311 P.2d 940 (19#
whit a quasi judiaal tribunal makes its S
=1 action voidable, rather than vold par as-,
the pre31ImPU011 which is drawn f vim the
fact of the improper conduct, is applied to
promote a atmag social pt7 and is arta.
eient evidence to convime the fa*ftnd.,,
that the innocent party has been preju
diced; the rebuttable prc3umption iaipoaea
upon the party against whom -it operates
the burden of proof concerning the nonex-
istence of the preannvd feint: 6 90-80d,
Pla-Stat. (MY Department of Agrieui-
fure If Consumer Sena. V. Bonanxq 568
S0•2d 24, 81-42 (b is lgWy Black's I.aw
Dictionary i849 (4th ed. 1968k
Ex pane lobbying of an administrative
body actutg guasi'•ittdiaally denies the par
ties a fair, open, and impartial hearing.'
Suburban Medical Canter tx Olathe COm-
rraunify HOOP-, 226 Kan. 820, W P.2d $54
a PA7W Y.. Federal idbor Rahrdmx Aud—*y.
665 R?d W (D.C,Ciram), relied an by Judge
Nesbitt, supports this view. Tbere the taut! was
==—don 337(dxt) of !tie AQtmnings-
aieations Tbc Act ems, in (C)6
that a member of the body involved In the
lee isiae,et pewees wteo sceeirw say ptaidbited
co mtmication awl place the Coates of the
w
o snrtonsttsnmr
T
Robert L. MORRIS,
STATE of Florida, App
No. i;l-0z5g7,
District Court of Appeal of
Second District,
Rehearing Deified Dec. 6,
APpesJ pursuant to Ma.R.App,
from the Circuit Court rq Pinev
Richard A. Lace, Judge.
cxnmunicatfoo on public mcord.
P states that where the comma
knowingly made by a party in viol
subsemon, tac party may be reg4
Cauft why
his la m. or interest to
Ca snot
eel, or otherwise a �t�affeeted
of such vtotagom; 3 U.&C.A. 9 :
(D).
5-1351
which in-
17 to the
e regula-
of public
dnesa of
as-." !d
I Admin-
of
tri-
:d in dta-
standard
goo Roy.
EM,Tea,
,f judges
s as it is
Ritter v.
unty, 96
) (same).
9.140(g)
County,
man was
in of this
"to show
account
TOTAL P.14