Fort Walton Beach Council agenda — 11-14-2006‎(workshop)‎ — reading text

that in Miami fair rate of return in certain situations which Beach it approximates 75% Of the fair market value demanded it in order to avoid being confiscatory. on apartment buildings which would in reality This remains the result despite an attempt in other compute out to a 4. 5% Return instead of the 6% Provided, even if that should be found to be a fair language of the ordinance to allow the administrator 2006 Thomson/ West. No Claim to Orig. U. S. Govt. Works. sv= Split& rs=... 11/ 14/ 2006 https: llweb2. westlaw.comlprint/printstream. aspx?prft=HTMLE& destination= atp&  Page 6 of9 305 So. 2d 764 Page 6 305 So.2d 764 Cite as: 305 So.2d 764) return. Mortgage interest is expressly excluded as concurring specially). an operating expense and when this is calculated in l J I agree that Section ) 66.021, Florida Statutes, is the ' return' it becomes a negative one of minus constitutional and that the City of Miami Beach has 4. 25% Under this provision of the ordinance. the constitutional * 770 authority to enact a rent Obviously, this becomes confiscatory and the control ordinance upon a finding that an emergency administrator is not allowed under these guidelines exists. to make a sufficient adjustment to avoid confiscation and a deprivation of the landlord' s 2) The finding of the trial judge that the city property without due process of law. council properly detennined that an emergency does exist, because of ' the extraordinary, unusual and Testimony revealed that each of the plaintiff unique factual situation existing in the south beach corporations in this cause is operating at an actual area' of Miami Beach, is proper. loss before depreciation and yet under the ordinance' s fonnula it had a ' profit' and a ' rate of 3) The ordinance adopted by the City is deficient return' of 10. 46%. The expert observed that in in that it lacks proper standards and guidelines for order to qualify for an ' increase' under the its enforcement. The opinion by Mr. Justice Dekle ordinance' s fonnula, the owner would have to sets forth with particularity many of its deficiencies, increase his losses to $ 183, 000! As to the fair which in effect make it confiscatory. I am market value in relation to the assessment, the concerned that the holding that certain standards testimony reflected the value of one large apartment and guidelines are so fixed as to make the ordinance unit at $ 7 million which had been its purchase price confiscatory raises an inference that this situation in 1971 and yet its assessed value during the interim could be corrected by giving the administrator even of increasing property values never did exceed $ 5 broader discretionary authority. It would be clearly million; that competition had kept its rental improper to delegate broad discretionary powers to increases during the 3- year period to an average of the administrator, although he could be authorized less than 5% And with an overall loss of $36, 000 in to promulgate rules and regulations that relate to the the first 11 months of 1973, meaning, again, that to implementation of the act and are strictly procedural qualify for rent increase under the fonnula in the in nature. The correction must be in the standards ordinance would require an increased Loss up to and guidelines. 150,000 before an ' increase' could be granted. These results simply do not square with the I concur with the majority judgment entered herein. requirements of due process; they would constitute ROBERTS, Justice ( concurring in part, dissenting confiscation beyond the control of the in part): Administrator under the tools he is given to work I concur with the majority' s holding that Sections with. The council will simply have to try again. 4( b)(1), 4( b)( 4), and 9 of the questioned ordinance constitute City of Miami Beach v. Forte Towers, The ordinance is unconstitutional in its present Inc. an unlawful delegation of legislative powers fonn, in my view, in that its provisions and without sufficient objective guidelines, and, guidelines are arbitrary and unreasonable and would therefore, render the ordinance invalid. For be confiscatory and a denial of due process. emphasis, we restate the following excerpt trom City of Miami-Beach _v._Fleetwood Hotel, Inc., 261 Having found the ordinance to be deficient for these 80 I ( Fla. 1972): So.2d reasons,the other grounds asserted as invalidating The same restrictions which apply to the the ordinance need not be considered. Legislature' s delegation of legislative authority also apply to the enactment of municipal ordinances Accordingly, I concur in the majority opinion of the under the general police power by municipalities in Court for the reasons set forth herein. that city ordinances must not constitute an improper delegation of legislative, executive or administrative OVERTON, J., concurs. OVERTON, Justice power. Blitch v. City of Ocala, 142 Fla. 612, 195 2006 Thomson/ West. No Claim to Orig. U. S. Govt. Works. https:// web2. westlaw .comlprintlprintstream. aspx?prft= HTMLE& destination= atp& sv= S pIit& rs=... 11/ 14/ 2006  Page 7 of9 305 So. 2d 764 Page 7 305 So. 2d 764 Cite as: 305 So.2d 764) So. 406 (1940). It has been previously held by this emergency which would be a viable basis for such Court in Smith v. Portante, 212 So. 2d 298, 299 legislation, the United States Supreme Court has Fla. 1968), that: held in Levy Leasing Co. v. Siegel, 258 U. S. 242, at No matter how laudable a piece of legislation may 245, 42 S. Ct. 289, at 290, 66 L.Ed. 595. be in the minds of its sponsors, Objective guidelines The warrant for this legislative resort to the police and standards should appear expressly in the act or power was the conviction on the part of the state be within the realm of reasonable inference trom the legislators that there existed in the larger cities of language of the act where a delegation of power is the state a social emergency, caused by an involved and especially so where the legislation insufficient supply of dwelling houses and contemplates a delegation of power to intrude into apartments, so Grave that it constituted a serious the privacy of citizens.' italics ( added). menace to the health, morality, comfort, and even to The rent control Ordinance at issue in the instant the peace of a large part of the people of the state. case does not contain objective guidelines and That such an emergency, if it really existed, would standards for its enforcement by the City Rent sustain a resort, otherwise valid, to the police power Agency nor can such be reasonably inferred from for the purpose of dealing with it cannot be the language of the Ordinance. doubted, for unless relieved, the public welfare Unrestricted discretion in theapplication of a law would suffer in respects which constitute the without appropriate guidelines and detennining its primary and undisputed, as well as the most usual meaning may not be delegated by the City Council basis and justification for the exercise of that power. to an agency or to one person. ( cases cited)' emphasis supplied) However, rent control is a drastic measure to be As explained by Bernard Frielander and Anthony utilized with the greatest caution and only in Curreri in their treatise on Rent Control, which was extreme situations. As the Court previously stated published in 1948, shortly after the close of World in Fleetwood, supra, in the area of rent control War II, rent control arose as a war- time government legislation in general, the Supreme Court of the control because of the grave situation in housing United States has placed severe limitations on the posed by both the First and Second World War. In power of state and municipal governments. When their forward to their treatise, the authors explained: such legislation is enacted, deprivation of rights The origin of the conditions of which these under the Fifth and Fourteenth Amendments to the controls are an outgrowth may be traced back Constitution and Section 9 of Article 1, the almost twenty years to the beginning of the Declaration of Rights of the Constitution of * 771 depression. When that economic cataclysm Florida, and treedom to contract are endangered. In engulfed the nation, construction of new homes and Fleetwood, supra, this Court further explicated: business buildings dwindled to insignificant The only justification for the utilization of such