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Guest Author

Major Harding: Protect our constitution from unnecessary clutter and logrolling

The week of April 16, 2018, the 37 members of the Florida Constitution Revision Commission (CRC) hold the unique power to approve or not approve what proposals will go on the 2018 ballot this November for voters to consider adding as amendments to our state’s constitution.

Given the substance of a number of the remaining proposals, and the grouping of those proposals, there are a number of concerns the Commission should consider.

First, as discussed in prior public addresses, many of the remaining proposals — irrespective of their underlying merits — do not belong in our constitution.

As then-Chief Justice [Alan] Sundberg noted in his dissent in State v. Firestone, 386 So.2d 561, 568 (Fla. 1980): “[t]he predecessor Constitution of 1885 had been repeatedly and persistently amended by inclusion of matters which did not rise to fundamental constitutional dignity. A major objective of the original Constitutional Revision Commission was to impose a more orderly and stringent process for amendment of the 1968 Constitution to curb the excesses which beset the 1885 Constitution.”

A number of the present proposals — regulating everything from naming of buildings to greyhound racing, civics lessons to vaping in public places — objectively do not rise to the level of fundamental constitutional dignity because they do not govern state government, protect fundamental rights and can be enacted through the legislative process.

The Commission must act to prevent these from being placed on the ballot and protect our constitution from unnecessary clutter.

Relatedly, the Commission’s present grouping of proposals makes the problem worse. By grouping proposals, the Commission is effectively depriving the voters of their right to choose what does and does not belong in Florida’s foundational text on a proposal-by-proposal basis. As a consequence, these groupings not only fail to curb the excesses of the constitutional amendment process, they deny the voters the ability to do so as well.

Although the Commission is not required to do so, the Commission should adhere to a single-subject requirement. All proposed amendments that come to the voters — apart from those produced through this process — must be limited to a single subject.

The Florida Supreme Court has recognized that one of the principal reasons for the existence of this requirement is “to prevent ‘logrolling,’ a practice that combines separate issues into a single proposal to secure passage of an unpopular issue.” Advisory Opinion to the Atty. Gen. re: Voluntary Universal Pre-Kindergarten Educ., 824 So. 2d 161, 165 (Fla. 2002). As discussed, logrolling is of particular concern as it relates to constitutional clutter.

Regardless of how popular an issue may be, combining proposals of constitutional concern with “ordinary law” proposals is unfair to the voters, and ultimately can result in an unnecessary and improper constitutional amendment. Voters should not be forced to consider approving proposals about which they have no interest, or worse, to consider propositions they would otherwise oppose in order to approve completely unrelated proposals that they like.

The Commission owes it to the voters to allow every proposal to rise or fall on its own respective merits.

The Commission should exercise restraint and reject proposals that detract from the basic purpose of a constitution. The Commission should exercise restraint by asking whether the proposal protects a fundamental right, and whether there is a reason why the proposal cannot be enacted by the legislature.

If the answer is no to these questions, then the Commission should vote to reject the proposal.

The Commission should also reject any attempts at logrolling and embrace a single-subject ballot scheme. The Commission should reject any proposal that groups unrelated propositions because doing so, while not unconstitutional, is nonetheless unfair to the people of Florida. We must keep our state constitution clean.

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Major Harding is a former Chief Justice of the Florida Supreme Court.

Jeff Kottkamp, Paul Hawkes: Greyhound amendment does not belong in our constitution

Florida voters will be asked in November to decide the fate of the work product of the third Constitutional Revision Commission (CRC) since the 1968 Constitution that created the CRC process. Currently, this CRC has produced perhaps as many as 13 additional ballot questions (total of 18 on the ballot) effecting up to 25 changes to the Florida constitution.

Our current constitution was adopted in 1968 — and is celebrating only its 50th birthday. Florida adopted a new constitution, because the 1885 constitution was deeply flawed. Perhaps in hopes of avoiding the need to completely rewrite the constitution again, the 1968 drafters created the extremely unique process — the CRC — no other state has anything like the CRC, even after watching Florida’s 50-year history with one.

Most individuals would agree that the purpose of a constitution is to establish the basic structure of government and the fundamental rights of citizens. But, is this broad agreement as to the purpose of a constitution similar to agreeing that we should eat more broccoli? Or, is our agreement to this principle more significant?

The CRC was never intended to be a “super-Legislature” or a vehicle to propose putting issues in the constitution that ‘can’t get through the Legislature.’ And, it was certainly never intended they would place proposals on the ballot merely because they were thought to be a “good idea.” The CRC acting in this manner is more likely to lead to the need for a constitutional rewrite, similar to 1968, rather than avoid it.

The language creating the CRC clearly seems to envision a commission that is modest and circumspect in its proposals. Article XI Section 2 (c) of the Constitution states:

“Each constitution revision commission shall … not later than one hundred eighty days prior to the next general election, file with the custodian of state records its proposal, if any, of a revision of this constitution or any part of it.”

Modesty and circumspection can be seen in at least three parts of the provision. First, is the word “proposal.” It is singular — which implies that the CRC may put forward limited proposals — not a long list of proposals. Second, is the use of the phrase “if any” which suggests that the 1968 framers realized that the CRC could reasonable find no need for change to Florida’s constitution. Third, is the word “a” as in “a revision.” Thus, the language in the Constitution regarding the CRC suggests it exists to consider important issues that constitutional attention.

The current CRC has many good proposals that do affect the structure of government or basic rights for its citizens — and for those efforts, they are to be commended. They have worked very hard and devoted significant time away from their families and work to undertake this effort. They have addressed serious issues, which, although qualifying as issues of constitutional magnitude, the CRC members have decided not to place before the voters. That too is hard work.

Historically, the CRC process has met with mixed success with less than 40 percent of their proposals being adopted by voters. None of their work product in 1978 passed and in 1998, although most passed they still suffered some defeats. Compared to legislative or citizen proposals CRC proposals have met with only about half the success. Citizen initiatives and legislative proposals both hover around an 80 percent passage rate.

So, back to broccoli. What is the harm in putting proposals in the constitution that don’t meet the test we all agree they should meet? Proposals that are really legislative issues that ‘seem like good ideas’ or the ‘legislature has refused to pass’ even though they had been repeatedly asked. Besides the possibility of ultimately destroying the constitution they create the risk that good proposals go down with bad proposals, they demean the constitution as the important document we all want it to be, they create policy that is inflexible, and they can create unintended consequences and cost.

The CRC’s greyhound racing proposal is a classic example of a proposal that fails to rise to the level of a constitutional matter. Former Chief Judge of the Florida Supreme Court Major Harding is one of many legal scholars who shares the view that the greyhound amendment should not be in the Constitution.

In a column Justice Harding recently wrote, he identified the proposed greyhound amendment as one of three CRC proposals that do not belong in the Constitution noting that Florida’s Constitution is already three times longer than the U.S. Constitution and is “riddled with countless, ordinary laws and specifics of government policy and regulation, such as confinement of pregnant pigs, that lessen its status.” The Editorial Board of the Tallahassee Democrat/USA TODAY NETWORK shares his view and correctly stated in an editorial that the greyhound proposal “ … can be done by statute and doesn’t need to be in the Constitution.”

Of the remaining CRC proposals — the greyhound amendment received the fewest votes in the full CRC. The greyhound proposal most certainly does not belong in the Constitution. In fact, you could call the proposal the “Pregnant Pig Amendment” of 2018. It is purely a legislative issue. In past years individuals have aggressively sought gaming rights, card rooms and slot machines, to ‘protect the historic pari-mutuel industry’ and to ‘enhance prize purses.’ Now, many of these same individuals seek to rid themselves of the ‘historic pari-mutuel industry’ so that they can maintain their gambling monopoly (the proposal is very clear about protection of all gaming monopolies) and enhance their profits because they will not have to roll any of the gaming proceeds into prize purses.

Some of the advocates of the greyhound proposal tell stories of animal abuse that are flat out fiction. Stories, which if true, would result in prosecution. No state attorney or jury in Florida would tolerate the animal abuse described nor would the Division of Pari-mutuel Wagering which closely inspects tracks and kennels every week. The only individuals that would suffer as a result of these alleged abuses would be the dog owners who have invested thousands of dollars to purchase each racing greyhound and thousands more to raise and train each dog.

If the greyhound amendment passes it could extinguish 3,000 direct jobs and 10,000 indirect jobs within 45 days of passage. It would also put the well-being of as many as 15,000 greyhounds in jeopardy. If you take away the ability of their owners and trainers to make a living—you also take away their ability to care for the dogs.

In addition, the amendment would have a significant financial impact on Florida. Over the last five years over $1.2 billion has been bet on live greyhound racing just at track ticket counters (that number is even higher if you count internet bets). The track in Orlando would be forced to close. The state would lose tax revenue and would also incur liability for a taking as they render the hundreds of millions of dollars in property invested by Floridians in this legal enterprise — worthless.

But beyond the economic impact, the gross misrepresentations from the advocates, the unfairness in preserving monopolies while creating — in essence — mini-casinos, there is a much more important reason that the greyhound proposal should not be advanced by the CRC — it simply does not belong in the Constitution.

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Jeff Kottkamp is an Attorney Practicing Law in Tallahassee. He served in the Florida House of Representative and was Florida’s 17th Lt. Governor. He is Jackson’s dad, Cyndie’s husband and the Human caregiver to 2 Dogs.

Paul Hawkes is an Attorney Practicing Law in Tallahassee. He served in the Florida House of Representatives. He is the former Chief Judge of the 1st District Court of Appeals.

Perry Thurston: Gov. Scott should show leadership and comply with court on voting rights

Gov. Rick Scott and the Florida Cabinet have a chance to right a wrong of their own making. They can – and should – comply with a court order to create a reasonable process to restore voting rights to ex-prisoners.

U.S. District Judge Mark Warner ordered the state to develop a new method of deciding when and how convicted felons can regain their voting rights. The ruling gives the Florida Cabinet one month to create a new clemency process that consists of standards, not whims. In the words made famous by the Governor himself, it’s time to ‘get to work.’

Given our state leaders’ track record, it’s fortunate that Florida voters can go to the polls this November and approve the felony voter-rights restoration amendment. This change to the state constitution should protect a felon’s rights from the fickleness of the Florida Cabinet that seven years ago dismantled what had been the makings of a legitimate clemency process and replace it with an administrative beg-a-thon.

In 2011, Gov. Scott, Attorney General Pam Bondi, Agriculture Commissioner Adam Putnam and then-Chief Financial Officer Jeff Atwater changed the procedures by eliminating the automatic restoration of voting rights and replaced it with a minimum five-year waiting period before individuals could start the application process.

Florida is now one of only three states that imposes lifetime disenfranchisement for people with felony convictions. The only way a convicted felon can regain his or her voting rights in Florida is to apply to the state Office of Executive Clemency and pray their application is granted – a rare outcome, according to state figures.

Under Gov. Scott, only 2,488 applications for restoration of civil rights have been granted, a drastic drop from his two Republican predecessors. Former Gov. Jeb Bush restored the rights of 73,508 from 1999-2007. Former Gov. Charlie Crist, who instituted automatic restoration of voting rights for non-violent felons, restored 155,315 between 2007 and 2011.

Contrast Florida’s restrictive process to those of other states, where tough on crime policies give way to commonsense criminal justice.

Convicted felons in Indiana, Illinois, Montana and Utah regain their voting rights automatically once they are released from prison. In New York, Colorado and California, voting rights are automatically restored after release from prison and discharge from parole.  There is no need to restore voting rights to ex-prisoners in Vermont and Maine as those states have no disenfranchisement for people with criminal convictions.

As a tool of voter suppression, felony disenfranchisement has no equal. More than 6 million Americans are unable to vote because of past criminal convictions and many of them have successfully made the transition from prison to being productive members of society.

It should be an easy call for Gov. Scott and members of the Florida Cabinet to change the process to automatically restore voting rights after prisoners have served time and made financial restitutions. Once felons pay their debt to society, they should be allowed to vote.

The Sunshine State can end this blatant practice. Our state leaders should take the lead, do the right thing by complying with the federal court and come up with a credible voter restoration process for felons.

Perry E. Thurston Jr. is a member of the Florida Senate.

Joe Clements: Honoring Carl Enis, a genuine American hero

Ed. Note The following is a reprint of a Sunday Facebook post by Florida campaign consultant and entrepreneur Joe Clements. Clements wrote the post in memoriam of Air Force Staff Sergeant Carl Enis, a Tallahassee resident and husband of lobbyist Angela Drzewiecki. Enis was killed in a helicopter crash in Iraq late Thursday along with six other servicemen. News of Enis’ death made the front page of the Tallahassee Democrat on Saturday

Two days before Carl’s helicopter went down in Iraq, we were texting about an outdoor business he wanted to start when he got home and planning a late season elk hunting trip.

The trip would have been an adventure and the business would have been successful.

That’s just how things worked with Carl.

I met Carl through my dog.

In 2011, we adopted Jasper from Last Hope Rescue, founded and run by Carl’s wife Angela. Over the next few years, my wife Sara became friends with Angela as we volunteered and fostered dogs for Last Hope.

Angela is an exceptional woman who became among Sara’s closest friends.

As Angela and Carl did for so many people in Tallahassee, they hosted us at their home for dinners. Meals at their house always included wild game and/or fish provided by Carl.

Carl told me once that he had not purchased meat from a store in at least three years.

When you met Carl, he would tell you about his wild hunting experiences and you’d think, “Carl’s a good dude, maybe I should try hunting.”

What usually you had to learn about Carl from others is that he was a multilingual, financially well-off, athletically gifted, elite special operations warrior who recently earned an MBA from Florida State.

There is a reason many of his memoriam posts on his Facebook page include the term “badass.”

Carl is among the few people for whom it is true that he could have been almost anything he wanted. Carl chose to become a special operations warrior who specialized in the most difficult rescue missions by going through a training pipeline so grueling that it suffers higher attrition than the Navy SEAL training pipeline.

Carl could skydive, scuba dive, rock climb, mountaineer, ATV, shoot, fight, pilot airplanes, ski, provide trauma care, track, hunt, fish, survive and do them all well.

Last July, Carl sent me a text that said “Want to do an antelope hunt in Wyoming?” To which I responded “Hell yes!”

In October, we flew out west and proceeded to wreck a rental car into a deer, get swindled by a rancher selling bogus land access, fill our antelope tags on public land and spend a night at the Aspen ranch of a billionaire gas industry magnante.

For the flight back home, Carl talked the airline desk agent into letting us check a giant cooler of antelope meat for free.

Building relationships in the outdoors was the epicenter of Carl’s life and it’s why many people are deeply grieving his loss. Humans are a group hunter and male relationships are forged deeply through experiences in the outdoors like hunting and fishing.

I’m certain the same bond is true for the PJ brothers he served alongside in training and deployments.

Angela, we are all grateful you let us borrow Carl for these adventures. They added great value to all our lives.

I took the photo below of Carl on that Wyoming trip early one morning. No filter added.

In Carl’s life, days like this were common because he never wasted time doing things not required by duty or driven by passion. In that way, Carl’s life is an example on how to make the most out of our time.

Carl, you did your duty and lived in accordance with your sworn creed “…that others may live.” I’m proud to have known you. Enjoy the high country my friend.

Joe Clements is co-founder of Tallahassee based Strategic Digital Services, husband of Sara Clements and damn glad he took that hunting trip last October.

Sonia Stratemann: Time for greyhounds to have a voice

I adopted my first greyhound in 2003, a decision that changed my life forever. I offered to take the dog that had been waiting for a home the longest, and was introduced to a four-year-old dark brindle dog named Leroy. He had suffered a back injury and his owner, a large greyhound breeder from Colorado, had ordered that he be “euthanized.” Luckily his trainer reconsidered, and Leroy eventually found his way to me.

Leroy was nervous when he first joined our family, and never left my side. He was quiet, loyal, and loved to go on adventures. Within two months, I had adopted five more greyhounds and Elite Greyhound Adoptions was formed.

Over the next decade and a half, and thanks to the work of hundreds of dedicated volunteers, I was able to help more than two thousand gentle greyhounds find homes. Leroy even showed other dogs how to acclimate to their new surroundings when they arrived. Elite became officially recognized as a track adoption group for Palm Beach Kennel Club.

I’m grateful for the opportunity I had to help so many dogs, but it came with a price. When I started my rescue group, I was instructed to not speak publicly about anything that would put the industry in a negative light, and was discouraged from even using the word “rescue.” Greyhound trainers made it clear that if I violated this devil’s bargain I would stop receiving dogs, and they would instead be killed. Race dog owners generally lived out of state and many never even met the greyhounds they owned. On a daily basis, these owners would instruct trainers to get rid of dogs that had been injured or were no longer profitable. There was also a steady stream of dogs that were sent “back to the farm,” trucked back to breeding farms and presumably killed. I had trainers call me in tears, begging me to take a favorite dog before it was sent back to meet a dismal fate.

In the ensuing years I personally witnessed rampant cruelty in the racing industry. Dogs arrived with severe infestations of fleas, ticks and internal parasites. Many had old hock fractures that were never healed properly. Nearly every single breeding dog that came to us required extensive dental work with multiple extractions. We were given countless dogs with catastrophic injuries, including dogs with legs that were literally dangling. A dog I was trying to rescue died while being shipped to another state, after the industry hauler put her and a second dog together in a small cage for the long trip.

I tried to work within the industry and push for changes. I provided track officials with specific information about animal welfare problems, but nothing came of my complaints. The industry has not changed. All these years later, greyhounds are still breaking their legs and being dumped. The lucky ones are kept at vet clinics for years, where they are used as blood donors, while others are simply destroyed.

After suffering a personal tragedy a year ago, I simply couldn’t stay silent any longer. I began speaking up about my experiences, and joined a movement to end this cruel industry. I spent the last month traveling across the state to testify before the Constitution Revision Commission, which is considering a measure, Proposal 67, to phase out greyhound racing by 2020.

As a consequence of telling the truth, my family and I have been verbally attacked and subjected to cyberbullying. I have also come to grips with the sad fact that I will no longer be able to help individual dogs as I used to. Nonetheless, I’m incredibly proud of the choice I have made to speak out.

I have seen this industry from the inside, and it’s time for it to end. With my entire heart, I urge commissioners vote yes for the dogs on Proposal 67, and let the voters decide the fate of dogs like Leroy.

Jennifer Frankenstein-Harris: Fight to protect property rights far from over

In the final weeks of the 2018 Legislative Session, immense tragedy struck a quiet community right here in our state. Our elected officials rightfully focused their remaining time and energy on ensuring school safety and addressing mental health issues in the wake of the Parkland school shooting.

While legislators appropriately turned their attention to addressing these priorities, their bandwidth to tackle other issues was understandably reduced. Though legislation to create statewide standards for vacation rentals did pass committees in both the Florida House and Senate, ultimately time ran out and Senate Bill 1400 and House Bill 773 did not make it across the finish line this Session.

Some special interests are promoting this as a win—I challenge that narrative. Continuing to trample the private property rights of Floridians seems, to me, like anything but a victory.

The truth is, it is far too early for anyone to declare success just yet—we are only in the midst of this discussion. As president, I personally guarantee the Florida Vacation Rental Management Association (FL VRMA) will continue to bring forth education and a fierce determination to fight for the rights of property owners across the state of Florida.

I assure you this fight is far from over.

This year’s legislative session was, in reality, filled with small victories that added up to big gains for our cause. With each public discussion, the tide seems to be turning, we find we have more support than some may have expected, and important issues and hypocrisies are being brought to light.

These successes would not have been possible without the relentless work of Senator Greg Steube and Representative Mike La Rosa. We are so grateful for their faithfulness and continued determination to bring this matter to the forefront and promote bills that defend and protect the basic right of every Floridian to own and use their property to prosper.

I am confident we are getting close to our goal of reasonable vacation rental rules that are immune to the whims of unfriendly local ordinances. FL VRMA is working diligently with our partners and allies, including Airbnb and HomeAway, to ensure elected officials are educated and private property rights are protected, and we will continue to do so.

Property ownership is the American dream and should not be shattered by unfriendly local representatives and arbitrary barriers that make vacation rentals difficult or in some cases impossible.

Jennifer Frankenstein-Harris is president of the Florida Vacation Rental Management Association.

Logan McFaddin: Stop distracted driving & AOB abuse

Florida lawmakers adjourned last week without taking action—for the second session in a row—on two issues that threaten Florida communities: distracted driving and assignment of benefits (AOB) abuse. Two issues that, without action, continue to hurt Florida motorists and Florida homeowners.

Vehicle crashes and fatalities are rising sharply nationwide and in Florida. The National Safety Council (NSC) estimates more than 40,000 people across the country died in motor vehicle crashes for a second consecutive year in 2017. In Florida, motor vehicle fatalities have increased at an alarming 43 percent since 2014, according to the NSC. Not even the most sophisticated automobile safety features can protect us from some of the biggest hazards on the roads today, including the ubiquitous use of smartphones behind the wheel.

Distracted driving is one of the leading causes for the rise in auto crashes in Florida and nationwide. To reverse this trend, our driving habits and our traffic laws must change. Unfortunately, Florida is one of only four states in the country that hasn’t yet made the highly dangerous practice of texting while driving a primary enforcement law. That means Florida law enforcement officers still cannot pull over drivers who are seen using their devices while driving. As we turn our focus to the 2018 election cycle, followed by the 2019 Legislative Session, auto insurers will continue our efforts with the FL DNT TXT N DRV Coalition to educate our elected leaders on the importance of instituting laws that will hold drivers accountable for their actions and keep Florida roads safe.

Another important issue to keep a watchful eye on is AOB abuse, a fraudulent practice that takes advantage of Florida property owners.  Typically occurring after a major storm hits Florida, dishonest contractors and repair companies work with the trial bar to convince consumers in need of repairs to sign an AOB authorization and essentially hand over all the rights and benefits of their insurance policy. Once the vendors have control of the insurance benefits, they team up with trial lawyers to inflate claims and then sue the insurance companies. Ultimately, those fake and inflated claims and lawsuits drive up the cost of home and auto insurance and make it more expensive to own a home or car. The AOB scam started in the homeowners insurance marketplace and often targeted storm victims who suffered damage to their homes. Now, it’s rapidly growing on the auto repair side too.

AOB abuse has become another example of the crumbling legal climate and widespread lawsuit abuse for which Florida is gaining national notoriety. The state was recently named the worst “Judicial Hellhole’’ in the country by the American Tort Reform Association. According to a report from the Florida Justice Reform Institute, since 2010, total AOB lawsuits have increased from about 25,000 to more than 100,000—a rise of nearly 300 percent. Legislative reform is desperately needed to curtail lawsuit abuse and help reduce insurance costs in Florida. Consumer advocates, real estate agents, construction contractors, insurance agents, and other business leaders have partnered to fight AOB abuse and have urged lawmakers to take action. Voters also want to see these practices stopped. In a recent poll commissioned by the Property Casualty Insurers Association of America (PCI), 60 percent of voters surveyed said the current property insurance AOB system needs to be reformed.  With hurricane season upon us, PCI will continue to warn the public of this abusive practice that seems to increase after a major weather event.  urthermore, insurers will continue our effort with the Consumer Protection Coalition to encourage lawmakers to stop AOB abuse by passing meaningful reform in 2019.

PCI commends Florida families for traveling to Tallahassee this session to tell their stories on how distracted driving impacted their loved ones and why making texting while driving a primary enforcement law is so important in saving Florida lives. And, also appreciates Florida home and auto owners impacted by AOB abuse for telling their stories of hardship and why meaningful AOB reform is needed.

PCI encourages Floridians to continue to speak out. In order for distracted driving-related crashes and deaths, as well as AOB-related abuse and lawsuits, to be a thing of the past, your voice is needed. Tell your local and state leaders enough is enough.

Jeff Kottkamp and Paul Hawkes: Ending greyhound racing could cost state $500M

Consitution Revision Commission Proposal 67 would amend Florida’s Constitution and prohibit wagering on greyhound races, including ones sanctioned by licensed owners. 

According to the Division of Pari-mutuel Racing, there are 21 greyhound racing permit holders in Florida with 12 greyhound race tracks currently in operation. In addition to live greyhound racing, 11 of those tracks have card rooms. The tracks in Miami-Dade County and Broward County are also permitted to have slot machines.

The Sanford/Orlando greyhound racetrack only has live greyhound racing and does not have card rooms or slot machines. The entire business of the Sanford/Orlando track is built around live greyhound racing. The owner of the track, Penn Sanford, LLC, has recently made a significant investment to upgrade their facility.

Florida law and precedent require the state to compensate for the ‘fair market value’ of all real and personal property, based on what the court calls the “reasonable investment-backed expectations” of the property owner adversely affected by regulatory action of the state.

Compensation includes all property where value is adversely affected because of its “functionally integrated nature,” to the prohibited activity — in other words, property that is not prohibited or rendered illegal because of state action must still be compensated for, if it is found that the property was used to support the prohibited activity.

An example: Nothing in Proposal 67 prohibits bleachers, but the state would most likely have to compensate the owners of the bleachers or viewing stands at each of the 21 racetracks because it was part of the “functionally integrated nature” of the property. Nothing prohibits tracks, railings, display boards, greyhound dogs, kennels, starting gates or hundreds of other types of property. But, the owners of all of that property would be entitled to compensation from the state under existing law. The question then is: What is the fair market value of all the real and tangible property in Florida that would be adversely affected by the passage of Proposal 67? Added to that figure would be litigation cost and attorney fees.

Passage of Proposal 67 would give rise to thousands of claims under the Bert Harris Act, as well as for inverse condemnation, to those impacted by the amendment including greyhound racing dog owners, greyhound breeders, greyhound kennel owners, owners of specialized businesses where the business model depends on the greyhound industry, and greyhound racetrack owners.

Cost to the state — including the cost of defense, court cost, expert witness fees, attorney fees to plaintiff counsel, and the actual compensation for lost “investment-based expectations” of property value — could easily exceed $250 million and could conceivably approach $500 million. The proposal’s passage would trigger thousands of lawsuits, as every entity that could establish a legitimate claim that their “reasonable investment-backed expectations” were adversely affected by the proposal would reasonably be expected to file. Because each claim would be based on unique facts each would have to be separately litigated. Litigation would require lawyers, experts and incur cost.  

The current effort to end greyhound racing in Florida has been financed primarily by two groups from outside of Florida—Grey2K (based in Massachusetts) and the Humane Society of the United States (based in Washington, D.C). No Florida-based entity has aggressively pursued the legal prohibition of greyhound racing.

The binding precedent that interprets the law requiring compensation be paid for all property adversely affected is from the 2002 constitutional prohibition of using farrowing pens to birth and wean baby pigs. In that case, the Humane Society and an obscure group called “Floridians for Humane Farms” pushed a ballot initiative banning the use of gestation crates for pigs — otherwise known as the “Pregnant Pig” Amendment.

At the time the Pregnant Pig Amendment passed in Florida — there were only two pig farmers in Florida impacted—including a farm owned by Steve Basford of Taylor County, whose business produced 6,000 pigs per year. Basford had spent more than 30 years developing breeding lines and building his business. However, once the Pregnant Pig Amendment passed he could no longer continue to operate.

The amendment caused Basford to get rid of his pigs and forced him out of business. In 2010, he filed an inverse condemnation lawsuit against the state arguing that the Pregnant Pig Amendment resulted in a “taking” of his farm equipment – tangible personal property.

Very little of the property the state was required to compensate Brasford for was actually the farrowing pens rendered illegal under the constitutional provision.

Most of the compensation was for other property used in the hog farming business – property that was functionally integrated in Basford’s operation, but rendered impractical after the amendment passed. This property included a barn, some poured concrete and some other equipment used in hog farming. The trial court awarded Basford $505,000 based on his inverse condemnation claim finding that the amendment was a “partial taking” of property. Basford also filed a claim under the Bert Harris Act but failed to meet the pre-suit notice requirements on that claim.

An appellate court in 2013 upheld the award finding that the passage of the Pregnant Pig Amendment resulted in a partial taking of Basford’s property. Total damages paid to Brasford as a result of his litigation exceeded $1 million dollars. This ratio of total cost being roughly twice the market value is a similar ratio that DOT experiences from condemnation proceedings (including interest and legal fees) to settle claims.

The Basford case is a precedent, should Proposal 67 pass.  

But the proposal would have a far more significant financial impact on Florida than the Pregnant Pig Amendment because so many more people and businesses would be harmed by Proposal 67. It would cause the elimination of 3,000 direct and 10,000 indirect jobs for people who make their living on greyhound racing in Florida. It would also jeopardize the well-being of approximately 15,000 greyhound racing dogs in Florida.

As the Basford case indicates, the owners of racing greyhounds, the owners of racing greyhound kennels, and the owners of racing greyhound tracks would all have claims for inverse condemnation if Proposal 67 passes. In addition, they would all likely have substantial claims pursuant to Florida’s Bert Harris Act for the loss in value of their property.

The value of the racing greyhounds in Florida alone is very significant. Depending on their bloodline, racing greyhounds are routinely purchased for as little as $2,000 or as much as $50,000. Many dogs that are currently racing generate revenues that far exceed their purchase price.

To establish the value of the approximately 8,000 greyhound racing dogs currently racing you could assume a very conservative average of $5,000 per dog — which would total $40 million. You would then add the value of the approximately 7,000 racing greyhounds on farms that are being raised and trained. A very conservative figure for greyhounds in training would be $3,000 each, or another $21 million.

Thus, an extremely conservative estimate of the damages just for the racing greyhounds that could no longer race as the result of Proposal 67 would be over $60 million. This does not include the partial taking and loss of value claims related to kennel property and equipment — that’s even more problematic.

Most of the real estate at the tracks is devoted to the racetracks and passage of Proposal 67 will prohibit the intended use of that property. Bets over the last five years on live greyhound racing at Florida’s 12 greyhound racetracks have totaled more than $1.2 billion. Because the income approach to determine market value is a recognized methodology to determine value, and it would be reasonable that the income would be a determinative factor in the owners “reasonable investment backed” expectation of value, that figure could easily be used as a baseline to determine the loss in value of the impacted property.

The greyhound racetrack at Sanford-Orlando would have a particularly strong claim since they only generate revenue from live greyhound racing. In the last five years alone—the Sanford-Orlando track has taken in over $50 million in bets on greyhound racing.

Passage of the proposal would put the track out of business and give rise to a claim for damages that could easily exceed $100 million.

Jeff Kottkamp is a former Lt. Governor and Paul Hawkes is a former judge. They both now represent the Florida Greyhound Association.

Dr. Ed Moore: Improving Florida’s constitution: What belongs in it & what does not

Every two decades, a citizens-based commission, the Constitution Revision Commission (CRC), comes together to examine potential amendments for inclusion in the Florida Constitution. Florida is currently undergoing this citizens’ initiative process, whereby Commission members review more than 100 potential amendments and decide which amendments should be put before Florida voters for consideration on the 2018 General Election ballot.

What many Florida voters may not realize is that the Commissioners are not elected members of a legislative body. Unlike the Florida Legislature, the Commission is not designed to resolve long-standing, heavily debated complex issues. I think we can all agree these types of issues are not best dealt with by placing narrow and often confusing verbiage directly on the ballot. According to former Supreme Court Justice Kenneth Bell who serves alongside me on the Foundation of Associated Industries of Florida CRC Working Group, the purpose of a state constitution should be “limited to the core or fundamental law of the state, with more detailed measures left to statutory law,” as outlined in his “A Guide to Amending Florida’s Constitution.”

Unfortunately, the current CRC, made up of outstanding men and women, are having to do that very thing right now. They are dealing with heavy, complex issues that have been before the Legislature many times in some cases, without resolution. Some may think if the Florida Legislature cannot reach a decision on an issue the next step is inclusion in our state’s core document. That is often an incorrect assumption. Many issues have been around for years without resolution, even after intense debate and thorough research. Some issues are resolved eventually, but that is generally accomplished by duly elected officials who spend time to fully understand the complexities of issues while trying to avoid expected and unintended consequences of their actions.

One of the classic examples of how NOT to amend a state constitution occurred in 2002 when a proposed constitutional amendment was added directly to the ballot via citizen initiative to prevent the caging of pregnant pigs. Yes, you read that correctly. Encased in our most precious document is language dealing with pregnant pigs. An issue perhaps worthy of a debate in the legislative circle, but not in the state constitution. Due to this approved constitutional amendment, there was nationwide discussion that Florida was “the next California” where government by referendum could make the state all but ungovernable.

I don’t see that it has reached that point, but there are clearly signs it could be heading in that direction.

Would a similar measure belong in the United States Constitution? The U.S. Constitution is a document that has lasted over two centuries, remains focused on ensuring government does not intrude upon the constitutional rights of citizens, and offers a clear and concise description of how national government should be structured. Shouldn’t the purpose of the state instrument be similar in nature and composition? The U.S. Constitution has just 8,770 words; whereas, the Florida Constitution has more than 44,000 words. What does that tell you? Let’s look closely at some of the past and current proposals and consider their validity for inclusion.

In addition to the aforementioned pregnant pig debacle, another prominent amendment was the high-speed rail mandate. Passed by voters in 2000, this amendment decreed a high-speed rail be built in Florida. Just two years later, that amendment had to be repealed by the same electorate that had originally passed it. Why? Because it was shortsighted and failed to address key questions, such as how it would be financed or the fluidity of the technology of current transportation.  There are several ideas currently being discussed by the CRC that fall in that category.

Current CRC Proposal 88, regarding a “Declaration of Rights” for nursing home patients would add substantial additional rights for a single class of citizens, over and beyond what all citizens should expect. Additionally, it would open a Pandora’s box of lawsuit claims. It could be argued, why not include “special” rights for children, the mentally handicapped, veterans, the homeless, etc.? Where does it end?

Another current CRC proposal is E-Verify – a federal citizenship verification technology not yet fully worked out or implemented.  hould our state constitution mandate Florida businesses provide what is essentially a federal government function in verifying the naturalization and immigration status of every employee and job applicant? Moreover, rapid advances in technology may soon make E-Verify technology archaic and obsolete. These problems are very similar to the high-speed rail amendment that was repealed.

Alternatively, there are several suitable amendments to the constitution that are being considered. One such amendment, CRC Proposal 97 establishes that the required 60% approval rate needed to pass an amendment would be based on actual turnout, not just those voters that voted on the amendment.

Another current issue that makes sense for inclusion in the constitution is this year’s proposal dealing with the Power to Tax. Submitted by the Florida Legislature, this joint resolution would require a two-thirds vote of the Florida Legislature to increase state taxes or fees. The Power to Tax and how to apply or impose those taxes is an essential element in any constitution, just like the power that is appropriate to address the general welfare of the citizenry.

While these are just some examples of past and present proposals, we encourage voters to evaluate whether each item on the ballot is an issue better suited for more thorough debate and study in the Legislature or whether it meets the restrictive criteria to be written into a constitution. If you support an idea but it’s not one that belongs in Florida’s constitution, but rather in statutes, we urge you to contact your local legislators and tell them you support the idea, but not the inclusion of it in our state constitution.

 Dr. Ed Moore is the president of the Independent Colleges and Universities of Florida and is member of the Foundation of Associated Industries of Florida’s Constitution Revision Commission Working Group who recently released a brief on “What Belongs in a State Constitution.”

Major Harding: Keep our Florida Constitution clean

Like the United States Constitution, the Florida Constitution is a fundamental document that should stand the test of time.  In Florida, the Constitution Revision Commission (CRC) convenes every 20 years, having the unique power to review proposals to be added to the ballot for Florida voters to consider as amendments to our state’s constitution.

The 2018 CRC recently held a public hearing, where I had the opportunity to speak to the members on behalf of Keep Our Constitution Clean, a group of concerned businesses and Floridians who are urging the Commission to exercise restraint and reject proposals that detract from the Florida Constitution’s purpose.

A state’s constitution should govern with broad, general concepts, avoiding specifics and micromanagement as to not ruin its special status as a fundamental document.  A constitution is like the foundation of a house and statutes are like the exterior and finishes built upon that foundation. The exterior and other finishes can be changed as situations or society changes.  However, the foundation, the Florida Constitution, should only be altered when fundamental change is required. Our state’s constitution is meant to withstand the test of time.  Yet, the Florida Constitution is becoming riddled with countless, ordinary laws and specifics of government policy and regulation, such as the confinement of pregnant pigs, that lessen its status.  The Florida Constitution is already nearly three times longer than the U.S. Constitution.

Further, once an item is placed in the Florida Constitution, it becomes quite difficult to undo it. In other words, the item is no longer something that can easily be revised or updated by any branch of state or local government should we, as a voting public, change our minds or issues become outdated. Laws in our constitution bind future generations.  A perfect example of this is from November 2000 when Florida voters approved a constitutional amendment calling for a high-speed ground transportation system to be built in Florida.  However, just four years later, Florida voters repealed, or undid, the high-speed ground transportation amendment. Had this law been enacted by the Florida Legislature, it could have simply been changed a year later.

As this process moves forward, we believe there are several questions the commissioners — and Florida voters, if a proposal is placed on the November ballot — should ask themselves before voting on a proposal. These questions are not if the proposal is ultimately a good or bad idea, rather does the proposal meet the criteria to belong in our state’s governing document?  Is the proposal a foundational principle necessary for Florida’s government to operate? Does the proposal address or protect one of our most fundamental rights, such as freedom of speech, freedom of religion, or right to due process of law?  Is there any reason why the proposal cannot be enacted by the Legislature?

If the answer is no to the above questions, the CRC should vote against the proposal to avoid clutter within our state’s constitution.  We believe there are several proposals under consideration that serve no constitutional purpose and could easily be addressed by the Florida Legislature, including:

— Proposal 26, which creates the Office of Domestic Security and Counter-Terrorism within the Department of Law Enforcement;

— Proposal 29, which requires all Florida employers to electronically verify employment eligibility using the federal government’s E-Verify system “or any successor program,” which the federal government already requires;

— Proposal 37, which prohibits state or local governments from naming government buildings, or the like, after an elected state or local official until after that official has vacated office;

— Proposal 54, which eliminates the Certificate of Need program currently required for the authorization of new health care facilities or certain services;

— Proposal 65, which prohibits vapor-generating electronic devices in enclosed indoor workplaces;

— Proposal 67, which prohibits wagering on greyhound or other dog races; and

— Proposal 88, which amends Florida’s Declaration of Rights to include rights of residents of nursing homes and assisted living facilities.

Now, it is important to stress we do not necessarily disagree with the policy expressed by any of the above proposals. We simply believe such issues are best addressed through ordinary legislation and not enshrined in our state constitution. We should not allow our Florida Constitution to become even more cluttered.

We must keep our Florida Constitution clean.

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Major Harding is a former Chief Justice of the Florida Supreme Court.

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