2014 Legal Trends in Tampa


Tampa Law 2014

From a victory for property rights owners in the highest court, to a law aimed at expediting the execution process in death penalty cases, Florida litigation set plenty of new precedents this past year.


Big Win Against Big Tobacco

A Florida County Circuit Court jury retuned at $37.5 verdict against R.J. Reynolds Company after it found the tobacco giant liable in the death of a Coral Springs woman. Laura Grossman was diagnosed with lung cancer in 1993 and died just two years later at age 38. She had been a smoker since she was 15.

The verdict included $22.5 million in punitive damages for the industry’s continued efforts to market their products to teenaged customers. “The jury’s message was loud and clear: Big Tobacco should be protecting teens, not killing them,” said the plaintiff’s counsel, Scott Schlesinger, in a press release. “They should be curing cancer, not causing it.”

During the trial, attorneys for Reynolds, the second largest tobacco manufacturer in the country, argued that Grossman, herself, was responsible for the illness that claimed her life. The defendants alleged that the plaintiff had ignored cigarette warning labels that should have informed her of smoking-related risks.

According to Schlesinger, though, his teenaged client was incapable of assessing those risks. What’s more, she was part of an adolescent demographic aggressively targeted by the tobacco industry. And that industry understood how vulnerable her developing brain was to nicotine addiction. Evidence presented by the plaintiff’s team included two confidential reports, compiled by a researcher and chemist for Reynolds in the 1970s. The reports explored the critical role of habit-forming nicotine in the tobacco business and cigarette branding in youth markets.

“The tobacco companies were banking on the warning labels being their defense,” explained Schlesinger. “Jurors simply rejected their premise.”

The plaintiff was a member of the so-called Engle class action, a suit that represented more than 700,000 Florida smokers. The Florida Supreme Court’s 2006 Engle decision rejected the action and threw out a jury award of $145 billion in damages against the tobacco industry. It also opened the door for individual victims to file their own suits. Those victims were invited to use jury findings from the Engle trial in their own cases. Core among them was the finding that cigarettes cause cancer and that companies conspired to hide evidence about the dangers of smoking.

In October, the Florida Supreme Court denied the tobacco industry’s appeal to overturn the Engle ruling.

As of June, more than 2,000 cases were pending against Reynolds. Since Engle, the tobacco industry has lost hundred of millions of dollars in judgments from individual suits. Though thanks to appeals, very few victims have seen any of that money.

Still, Schlesinger is hopeful. “These cases prove that jurors are seeing through the decades of deceit and lies the tobacco companies have believed they could cast like a spell over jurors.”

Law Accelerates Death Penalty Timelines

A new law signed into effect this summer by Gov. Rick Scott aims to speed up the state’s capital punishment process. Under the Timely Justice Act, the governor must sign an inmate’s death warrant within 30 days of his or her appeal process becoming finalized. Inmates are entitled to appeal their sentence at least once at the state and federal level, as well as in a clemency review. Once the warrant has been issued, the execution must be scheduled within 180 days.

The controversial law is the first of its kind in the country. And it has understandably  drawn its fair share of praise and criticism. Supporters claim that the rule is necessary to ensure the timely processing of cases.

“Everybody realizes right now that when a person is sentenced to death, it’s going to be 10, 20, 30, 40 years before they are executed,” state Senator Rob Bradley, a supporter of the bill, told Slate. “That erodes the public’s confidence, and it leaves the impression, rightly or wrongly, that the system is broken.”

Those challenging the act argue that it puts unnecessary pressure on a death penalty system already riddled with errors and strapped for resources.

Since 1976, Florida has executed 77 people. In that same time, though, appellate courts have acquitted another 24 prisoners. For roughly every three inmates executed in Florida, another who is sentenced to die is exonerated. Part of the issue can be attributed to the fact that Florida is the only state in which a simple majority vote by the jury can send someone to death row. In the rest of the country, the vote must be unanimous.

Opponents worry that an expedited process could prevent innocent people from appealing convictions based on errors and ineffective counsel. The latter is a significant problem. Florida Supreme Court Justice Raoul Cantero has described the work of the attorneys appointed to defend death row inmates as some of “the worst lawyering” he had ever seen. The American Bar Association reviewed the state’s death penalty system in 2006, raising it’s own questions about attorney competence and suggesting close to a dozen reforms.

In late June, just days before the Timely Justice Act was set to go into effect, a lawsuit was filed with the state supreme court by the Capital Collateral Regional Counsel on behalf of more than 100 death row inmates. The suit argues that the law constitutes a violation of defendant’s rights to due process and equal protection. It also claims that the Act interferes with the authority of the court.

New Law Curbs Drone Use by Law Enforcement

This past spring, Florida passed the nation’s first legislation curbing the use of unmanned aircraft by law enforcement. In 2011, Miami-Dade police became one of the first departments in the country to receive permission from the FAA to operate camera drones.

“I like privacy,” said Gov. Rick Scott after signing SB92 in law in April. The bill passed unanimously in both the House and Senate.

Under the “Freedom from Unwarranted Surveillance Act,” state and local police agencies can use unmanned aerial vehicles only after securing a warrant. Otherwise, they must demonstrate that the drone is being deployed in response to “imminent danger,” such as terrorist threats, to prevent the loss of life or property, or to assist in the search for a missing person. Any evidence or information gathered in violation of the act is inadmissible in court.

Florida was one of 13 states to enact laws over drone use in 2013. A total of 43 states introduced bills and resolutions addressing issues related to unmanned aircraft systems.

Supreme Court Rules in Favor of Property Owner Denied Development Permit

Property rights advocates were encouraged by a decision this June that could expand landowners’ rights to challenge regulations and fees imposed by government over land use.

In 1994, Orlando resident Cody Koontz applied to develop 3.7 acres of his Florida wetlands property, which was under the jurisdiction of the St. John’s River Water Management District. The District agreed to approve the project under the condition that Koontz either reduce the size of his development or pay fees to improve 11 acres of public lands elsewhere. Koontz refused, calling the demands excessive. The District denied his permit. He then filed suit for damages.

During his suit and subsequent appeals, attorneys for the Koontz family called upon two U.S. Supreme Court decisions, Nollan v. California Coastal Commission, and Dolan v. City of Tigard, both of which set limits on what government agencies can demand of developers in these kinds of arrangements. According to those decisions, there must be a “rational nexus” and “rough proportionality” between the concessions government agencies ask of landowners and the environmental impact of those owners’ proposed developments.

Circuit and appellate courts ruled in favor of Koontz, on the basis that the District’s demands violated those standards set forth in Nollan-Tigard. But the Florida Supreme Court disagreed. Their reasoning: The standard set forth in those prior cases applied only to the approval, not the denial of a permit.

This past June’s 5-4 decision by Justice Alito reversed that decision once more. The U.S. Supreme Court’s stance on property rights “do not change depending on whether the government approves a permit on the condition that the applicant turn over property or denies a permit because the applicant refuses to do so,” Justice Alito wrote in his decision.

Property rights advocates, including the National Association of Homebuilders, celebrated the verdict, likening the process by which the government issues permits to extortion.

But critics of the decision say it will make it more difficult for the government to promote development and protect the environment for the public.

John Echeverria, a Vermont Law School professor and expert on land use and property rights, called the decision “a very serious loss for local governments.” He echoed the concerns of Justice Kagan. In the dissenting opinion, Kagen wrote that the decision “threatens to subject a vast array of land-use regulations, applied daily in States and localities throughout the country, to heightened constitutional scrutiny.”