IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT

IN AND FOR PALM BEACH COUNTY, FLORIDA

RIVIERA BEACH CITIZENS TASK
FORCE, etc., et aL,
Plaintiff(s),
vs.
CITY OF RIVIERA BEACH, et al.,
etc.,
DefendaJlt(s).
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Case No. 502011CA001501 "DIV. AA"
ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT
This matter carne before the Court on the Plaintiff's Motion for Summary
Judgment and on the Defendants' Motion for Summary Judgment. A hearing was ,
conducted on both motions on February 21, 2013. The Court has reviewed the
submissions of the parties, and has heard the argument of counsel. Upon consideration,
the Court makes the following findings.
This case is the latest chapter in a political saga relating to the operation, use and
future development of the City of Riviera Beach's municipal marina and surrounding
property. The Plaintiff, Riviera Beach Citizens Task Force (the "Task Force"), is a not
for profit corporation. The Task Force is made up of, and represents, citizens in the City
of Riviera Beach (the "City") who are opposed to the leasing of public land to private
marine interests, primarily Rybovich Marine (Rybovich Riviera Beach LLC). More
specifically, the Task Force seeks to prevent the use of City property for an industrial
commercial boat repair operation.
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To prevent the City from moving forward with plans to allow the use of municipal
property for commercial boat repairs, the Task Force successfully placed a charter
question on the ballot for the November 2, 2010 general election. The charter question
called for an amendment to Article VII, section 3.5 of the City's charter.
The charter amendment, inter alia, prohibited the use of the municipal marina for
anything other than municipal and public uses, and specifically prohibited use of
municipal property for an industrial commercial boat repair operation. The charter
amendment was approved by the voters in the November 2, 2010 general election
effectively accomplishing the goal of the Task Force.
The City, and the Riviera Beach Community Redevelopment Agency, challenged
the charter amendment in circuit court on numerous grounds. See, Riviera Beach
Community Redevelopment Agency eta/ v. Riviera Beach Citizens Task Force et al, Case
Nos. 2010 CA d24434 AH and 2010 CA 024452 AH. The City's challenge to the charter
amendment was unsuccessful leading to an appeal to the Fourth District Court of Appeal.
Ultimately, the Fourth District likewise rejected the City's challenges to the Task Force's
charter amendment. See, City of Riviera Beach v. Riviera Beach Citizens Task Force, 87
So.3d 18 (Fla. 4th DCA 2012).
On January 10, 2011, before the Fourth District decided the appeal in City of
Riviera Beach v. Riviera Beach Citizens Task Force, the City held a closed door
executive session to discuss the appeal and to discuss the City's challenge to the charter
amendment. JA this action, the Task Force alleges that the actions taken by members of
the City council at this January 10 meeting violated Florida's Sunshine Law. The
gravamen of the Task Force's allegation is that the City council began a surreptitious plan
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to undo the results of the November 2, 2010 general election by proposing a new charter
amendment designed to repeal the charter amendment successfully championed by the
Task Force.
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Of significance to this case, a new citizens group emerged named the Committee
for a Better Riviera Beach (the "CBRB''). The CBRB supported the commercial use of
the City marina and its goal was to repeal the changes to the City's charter adopted in the
November 2, 2010 general election. The CBRB successfully placed a new charter
question on the ;ballot for the municipal election to be held on March 8, 2011.
This charter amendment essentially repealed the charter amendment supported by
the Task Force and previously approved by the electorate in the November 2, 2010
general election. For the sake of simplicity, the March 8, 2011 charter amendment
advanced by the CBRB will be referred to as the "repeal amendment." The repeal
amendment was approved by a majority of the electorate on March 8 once again clearing
the way for commercial use of the City's marina.
In this case, the Task Force has raised several challenges to the repeal
amendment. Only one of these challenges has merit and the Court will address the Task
Force's assertiort that the ballot title and summary used in the March 8, 2011 election was
vague and ambiguous. Specifically, the Task Force alleges that the ballot title and
summary failed to comply with the requirements of Section 101.161(1) which requires a
clear and unambiguous explanation of the proposed amendment.
1
Whether in fact a Sunshine Law violation occurred is not significant to the central issue
in this case and the Court need not decide whether such a violation occurred or whether
members of the City council were engaged in a surreptitious plan.
3
Perhaps ironically, the Fourth District addressed the requirements of Section
101.161(1) in its review of the original charter amendment advanced by the Task Force
and challenged by the City. In the City of Riviera Beach, the Fourth District gave the
following synopsis of the law:
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Section 101.161(1), Florida Statutes (2010), requires that "the substance of
... [any] ... public measure [submitted to the voters] shall be printed in clear and
unambiguous language .... " The ballot language "shall be an explanatory
statement, not exceeding 75 words in length, of the chief purpose of the measure."
The purpose of this requirement is to
"advise the voter sufficiently to enable him intelligently to cast his ballot."
Askew [ v. Firestone], 421 So.2d [151, ISS (Fla.1982)] (emphasis
omitted) (quoting Hill v. Milander, 72 So.2d 796, 798 (Fla.1954)). While
the ballot title and summary must state in clear and unambiguous language
the chief purpose of the measure, they need not explain every detail or
ramification of the proposed amendment. See Carroll v. Firestone, 497
So.2d 1204, 1206 (Fla.l986). The ballot language must, however, give
"the voter fair notice of the decision he [or she] must make." Askew, 421
So.2d at I 55.
F.la. Educ. Ass'n, 48 So.3d at 700.
Two questions must be asked in order to determine if the proposed
language is defective: first, whether the ballot title and summary fairly inform the
voter of the chief purpose of the public measure, and second, whether the
language of the title and summary, as written, misleads the public. Fla. Dep't of
State v. Slough, 992 So.2d 142, 14 7 (Fla.2008).
City of Riviera Beach id. at 21-22. Applying the standard articulated by the Fourth
District, the ballot title and summary for the repeal amendment at issue here failed to
comply with Section 101.161(1) and is defective.
The ballot question at issue here reads as follows:
CHARTER AMENDMENT QUESTION
Repeal of November 2010 Charter amendment which imposed restrictions on use
of City Marina
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Shall the City of Riviera Beach's Charter be amended to repeal the changes made
to Article VII, Section 3.5, which were approved at the November 2, 2010
General Election.
The City asserts that the ballot summary is clear and advises the voter of the
"chief purpose" of the amendment. At a superficial level, the City is correct. The ballot
summary reveals that it is intended to repeal changes previously made to Article VII,
Section 3.5. However, simply stating that the amendment is to repeal ''the changes"
made to Article VII, Section 3.5 of the City's charter does not "advise the voter
sufficiently to enable him intelligently to cast his ballot" or give ''the voter fair notice of
the decision he [or she] must make." Id.
Without some explanation of the substance of the changes being repealed there is
no way for the voter to determine what he or she is approving or disapproving. While it
is true that a ballot summary is not required to explain every detail or ramification of the
proposed amendment, a ballot summary must at least convey a modicum of information
relating to the substantive change being proposed. The ballot summary here fails to
meet this standard and leaves the voter to speculate concerning the substance of ''the
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changes" being repealed.
The ballot petition used by the CBRB to place the repeal amendment on the ballot
contained an accurate statement concerning the substance of the amendment being
proposed. The petition specifically stated that the repeal amendment was intended to
delete specific language from Article VII, Section 3.5 and went on to recite the specific
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language to be deleted. Had a similar approach been used with the ballot sununary, the
requirements of Section 101.161(1) would have been satisfied.
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Based on the foregoing, it is hereby,
ORDERED AND ADJUDGED that Plaintiff's Motion for Summary Judgment
is GRANTED, in part, and the Defendants' Motion for Sununary Judgment is DENIED.
The City of Riviera Beach is enjoined and restrained from implementing the changes to
Article VII, Section 3.5 of the City's charter approved in the March 8, 2011 election and
is restrained from deleting from the charter the amendments to Article VII, Section 3.5
approved in the November 2, 2010 general election. Nothing contained herein shall be
construed as a limitation on the City, or on the electors of the City, to seek a future
amendment of Article VII, Section 3.5.
DONE AND ORDERED in Chambers, at West Palm Beach, Palm Beach
County, Florida this l_I'ifay of February, 2013.
Copies furnished to:
P" Richard B. Crum (service@ciklinlubitz.com)
JUDGE GLENN D. KELLEY
CIRCUIT COURT JUDGE
P1 Brian Bradshaw Joslyn (bjoslyn@ciklinlubitz.com)
P" Richard Alan Jarolem
P1 Cynthia Ray (cray@caseyciklin.com)
P" Andrew Degraffenreidt, Ill (drewdy98@aol.com)
P" Dedrick Darnell Straghn (dstraghn@yahoo.com)
2
The Court does not agree with the City's contention that such an approach was
foreclosed by the 75 word limit contained in Section 101.161(1). An appropriate
sununary of the language to be delete, or changes to be made, could have been crafted
within the 75-word limitation.
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