Testa v. Town of Jupiter Island – CCLGLS Response

On February 8, 2023, the 4th DCA issued an order of serious concern to local governments. In Testa v. Town of Jupiter Island et al., Case No. 4D22-432, 2023 Fla. App. LEXIS 823 (Fla. 4th DCA, Feb. 8, 2023), the DCA rejected the generally accepted idea that Section 166.041(3)(a), Florida Statutes, allows a municipality to continue a noticed hearing on a proposed ordinance to a date certain without having to re-publish notice. This creates serious repercussions that could impact the legality of past municipal ordinance hearings that were continued, complicate the scheduling of future hearings, and result in additional publishing costs to municipalities.

Because of the serious legal and administrative issues raised by this case, the CCLGL Section Executive Council has unanimously agreed to participate in seeking leave to file an amicus brief supporting any motion to certify (or possibly re-hear) the case, subject to approval by the Florida Bar. The Council also approved pursuing legislative avenues, if required, subject to Bar approval.

CCLGLS Chair Janette Smith stated, “I am diligently working on the paperwork for the Florida Bar, and I am hopeful it will be quickly approved given the significant impact this decision has on local governments.” In addition, Chair Smith has spoken with the other associations (Florida League of Cities, Florida Municipal Attorneys Association, and Florida Association of County Attorneys) to encourage a coordinated response to this concerning case.

As information becomes available, the Executive Council will communicate with the Section through the listserve and in Executive Council meetings.

UPDATE 2/22/2023:

Following much discussion between CCLGLS members and other stakeholders, an amendment to 2023 Senate Bill 170 has been proposed to address the issue. To date, no companion bill has been filed. Of the amendment to the proposed bill (which also addresses several other topics), Chair Smith states: “Local government entities are strongly encouraged to share this information with their elected officials and lobbyists as support from all agencies will hopefully get [the portion of the bill addressed in the amendment] across the finish line.”

Special thank you to Rebecca O’Hara, Senior Legislative Advocate for the Florida League of Cities, for facilitating the submission of the SB 170 amendment addressing concerns raised by the Testa decision.