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News Service Of Florida

The News Service of Florida provides journalists, lobbyists, government officials and other civic leaders with comprehensive, objective information about the activities of state government year-round.

TECO project to continue move away from coal

Continuing a shift in Florida’s utility industry toward using natural gas to fuel power plants, Tampa Electric Co. on Thursday announced an $853 million project that includes rebuilding a generating unit to rely on gas instead of coal. Also, the company plans to shutter another old coal-fired unit.

The changes are planned for the utility’s Big Bend Power Station, which has four generating units in Hillsborough County. The utility said it will “repower” the complex’s Unit 1 to eliminate coal as the fuel and move to natural gas, with the changes expected to be complete in 2023. The complex’s coal-fired Unit 2 will be shut down in 2021.

“This project will improve the land, water and air emissions at Big Bend,” Nancy Tower, president and chief executive officer of Tampa Electric, said in a prepared statement. “Coupled with our significant increase in solar power, these changes will make Tampa Electric substantially cleaner and greener than it is today. This investment in cleaner generation will also provide significant savings to customers through lower expenses for fuel and maintenance of the existing units.”

Florida utilities have steadily moved toward using natural gas in recent years. In 2017, 67 percent of Tampa Electric’s energy was generated from natural gas, 24 percent was from coal and 9 percent was from other sources, the utility said.

In 2023, 75 percent is expected to come from natural gas, 12 percent from coal, 7 percent from solar and 6 percent from other sources.

Tampa Electric, which has about 750,000 customers, filed what is known as a “site certification” application for the project last month with the Florida Department of Environmental Protection. The department has sent that application to the state Division of Administrative Hearings, where a judge will hold hearings on the project.

Nursing home fined after probe of resident’s care

A Sarasota nursing home has agreed to pay $26,000 in fines and increased licensure fees after the facility failed to notify the daughter of a resident that her mother’s health was deteriorating.

The state Agency for Health Care Administration issued a final order this month citing Beneva Lakes Healthcare and Rehabilitation for failing to inform a resident or a resident’s representative about a serious medical condition and for failing to have adequate programs to ensure quality of care and quality of life in nursing homes.

The facility will be on the state’s nursing-home watch list until about February 2020, according to AHCA spokesman Shelisha Coleman. The final order imposed a $6,000 fine to cover costs of increased surveying, which is required for protection of public health, safety and welfare.

AHCA’s order essentially implemented a settlement agreement. The nursing home, part of the Consulate Health Care chain, did not acknowledge fault or admit wrongdoing as part of the settlement.

Jennifer Trapp, a spokeswoman for Consulate Health Care, told The News Service of Florida in a statement that it is the facility’s “heartfelt mission to do our very best by the patients, residents, and families” that it serves.

An administrative complaint the state filed against the nursing home said “resident 66” was admitted to the facility in January 2017 for treatment of chronic ulcers on both legs. She had multiple health problems, including congestive heart failure, but was not considered terminal. The goal, according to the daughter, was that the mother’s wounds would heal and that she’d get stronger. Instead, she died within a month.

Discrepancies were found during a survey, which included a review of the deaths of three residents “who died unexpectedly at the facility.”

Resident 66 —whose name was not disclosed — had undergone vascular surgery and was referred to the nursing facility for treatment of the ulcers on her lower legs. The daughter signed paperwork authorizing medical treatment if necessary.

After the woman’s ulcers failed to improve, she was referred to a dermatologist who, on Jan. 31, 2017, told a physician assistant who was treating the woman that the ulcers could be due to a systemic disease.

The medical record also showed that on Feb. 6, a wound doctor said she couldn’t be treated at the center because the wounds were too large and that a palliative consult should be scheduled.

But a “review of the facility record failed to reflect this discussion with Resident 66 or her daughter,” according to the administrative complaint. Instead, the physician assistant who contacted the daughter on Feb. 6 advised her that her mother was depressed and that she needed follow-up appointments with a vascular surgeon and the dermatologist.

In an interview with state regulators, the unidentified daughter said end-of-life care was never discussed with her or her mother.

“I didn’t know they would even be thinking about this,” the daughter told AHCA investigators, adding that had she known about the severity of her mother’s condition she would have authorized hospital care. “I relied on what they were telling me. My mother had ulcers on her legs, but that was it.”

AHCA also discovered that a licensed practical nurse did not follow protocol hours before the patient died when the nurse, among other things, failed to ask the resident if she wanted to be treated at a hospital. The licensed practical nurse also canceled a follow-up dermatologist appointment that had been scheduled for the resident and did not seek the help of a registered nurse.

The director of nursing told AHCA regulators examining the incident that “some things we should have done differently.”

The circumstances surrounding resident 66’s death contributed to the state’s decision to cite the facility for failing to have an effective quality assessment and assurance program.

The administrative complaint noted that the facility did not fully investigate and identify an incident of potential neglect for the woman’s unexpected death. “As result of the failures resident 66 expired in the facility. The situation resulted in immediate danger,” the complaint said.

The nursing home administrator is also the director of the quality assurance program.

But the death of the woman wasn’t the only circumstance leading to the citation, according to documents. AHCA discovered nurses erroneously withheld potassium medication from a resident and sanitary violations including dripping air-conditioning vents in the kitchen, a soiled ice machine and floors and a crumbling wall.

During their review, AHCA regulators noted nurses withheld potassium medication from “resident 50.” The medication had been ordered for him following surgery for a pacemaker. Nurses didn’t notify a physician they had held the medication four days in a row, and there was not follow up of the resident’s potassium level. Resident 50 required potassium because he took Lasix, a diuretic that lowers potassium levels.

The facility’s consulting pharmacist twice advised the facility that nurses were withholding potassium medication from the resident.

Making a better democracy: Brecht Heuchan and the CRC

The Florida Constitution Revision Commission has finished its work and has sent eight proposals to the November general-election ballot.

The CRC process is unique to Florida, with the 37-member commission meeting every 20 years and having the power to place constitutional changes directly before voters. Like all other proposed amendments, each ballot measure must win support from 60 percent of the electorate to pass.

Brecht Heuchan, a lobbyist and political consultant who was appointed to the commission by Gov. Rick Scott, played a key role in the development of the ballot measures as chairman of the panel’s Style and Drafting Committee.

Heuchan’s committee was tasked with developing the package of proposed constitutional changes prior to the A service final vote by the full commission. The eight ballot measures will join five proposals advanced by the Legislature and by the petition process. The commission’s proposed amendments include measures banning off-shore oil drilling and workplace vaping, strengthening ethics standards for public officials, imposing term limits on school board members and prohibiting greyhound racing.

The News Service of Florida has five questions for Brecht Heuchan:

Q: Can you describe your experience as one of the 37 members of the 2017-18 Constitution Revision Commission and how you feel about the eight proposals that are on the November ballot?

HEUCHAN: It was a great experience for me personally, just an ability to serve, which is a blessing for sure and a big responsibility.  You are just constantly reminded of that throughout the whole process. It lasted the better part of 15 months or so. You are routinely kind of reminded of the large responsibility that you have to serve, to be disciplined, to be thoughtful, to be careful, to be deliberate and to be open-minded as well.

Just one voice of 37, all of those people are extremely sophisticated in their own fields of expertise and came from literally every corner of the state with different ideological bents and different experiences and perspectives. When you blend all that stuff together with a process that was open, you have good results. … Given that everybody had a voice and when they wanted to be loud, they could be loud, and those things were considered. But at the end of the day, it’s still a deliberative body and the will of the majority rules and so that is how a commission like that is set up.

I think because of the openness and the consideration that those voices were given, each uniquely and individually, we ended up with what I think is a good product. Those eight proposals, I plan to vote for every one of them. Some of them are more transformative than others. But it doesn’t matter. Each of them I think will help move our state in the right direction until the next time the group meets and perhaps even thereafter.

Q: You personally sponsored three proposed constitutional changes, including a measure that would have guaranteed certain rights to nursing home residents, but none of them made it through the process. What was your biggest disappointment?

HEUCHAN: I think the nursing home one was my biggest disappointment. But you know lots of people were disappointed. Not everybody got everything that they wanted, let alone some of what they wanted.

As disappointed as I was that those proposals did not move forward, you have to rely on the wisdom of other people. You have to rely on the judgment of others. When you do that, you kind of surrender yourself to the will of the body. As disappointing as it was to let go of those things, there is some, I guess, joy in knowing that the issues were heard. They had a platform. I certainly was able to say whatever I wanted.

In the end, it wasn’t enough to convince enough of the other people. But that’s OK. … You do the best that you can. I thought that we did that. My proposals were a victim of a deliberative process.

Q: The concept of grouping several constitutional changes into one ballot measure has drawn some criticism. Six of the eight 2018 ballot measures group multiple issues. Was this done by the two prior CRCs, and how would you explain it to your critics?

HEUCHAN: It was done by both of the two prior CRCs. In fact, it was done more prolifically than we did. We grouped less than either of the two earlier CRCs. In fact, at the bedrock of all of this, the Constitution that we are operating under now, which was ratified in 1968 by the voters … at its point of ratification, the entire Constitution was bundled or grouped, depending on the word you want to choose, into three amendments.

The explanation of the grouping is that it’s not a new concept. It’s not novel. It’s never been controversial, to my knowledge, until now. I was a little surprised by some of the critiques. But that’s OK, too. They have a perspective. I have a perspective.

My perspective is that you have to balance the length of the ballot with the serious consideration of the time it takes for people to work their way through a ballot, lines at the polling places. In some places in Florida, those ballots have to be translated. And whether we like it or not, more questions means a longer ballot.

But when it left Style and Drafting, it was six (grouped) and six (single subject). At the time, no one knew how many were going to pass (the full commission), so I felt a balance of grouped and non-grouped proposals was the way to go. It was dead-on even. And we brought all 12 of those to floor and only eight passed.

Q: There will be 13 amendments on the general-election ballot, the most ballot measures since 1998. Your committee discussed the issue of voter fatigue when facing a long ballot. Will that be a concern in November?

HEUCHAN: Absolutely it’s a concern. But again it’s a concern along with all the other concerns. It’s not prevailing, necessarily. I think in 2012, they had (11) amendments on the ballot. The voters of Florida are used to this sort of thing. I think 12 or 13 is not too many.

We knew we were starting with number six. So yes, that was absolutely a consideration of how many, which ones were they, where do you get in terms of the highest merit. But even that’s subjective. You could ask all 37 of those people and you would get probably 37 different answers.

Voter fatigue is always a consideration. There is a bright spot, though, in that the trends in Florida overwhelmingly lean toward voting prior to Election Day. In 2016, nearly 70 percent of Floridians who voted, voted prior to Election Day. But still you get 30, 35 percent, whatever the number ends up being, on Election Day. … You’re going to end up with a lot of people showing up on Election Day with the ticket that we have, with the Senate race at the top, the governor and the entire Cabinet, all the down-ballot races.

Q: Do you have any advice or suggestions for the next CRC that will meet in 2037-38?

HEUCHAN: Tons of advice. I actually wrote a lot of it down as well as a number of other people. We’re kind of making a time capsule, so to speak … so they can look at it. Then they can act on their own. That’s the craziest thing. You’re starting and stopping this fairly large operation in a year-and-a-half or less. It’s a huge endeavor.

The advice I would give to the next group of people is pay attention to the rules that you pass. Be as open-minded as you can when it comes to other people’s thoughts. Participate as much as you can. The more that I went to these public hearings, the more that I sat in committee meetings, the more that I learned. … You tend to lean on your compatriots who are smart in those areas.

There’s one specific recommendation that I would make that I think would have changed some of how we handled ourselves. There are two votes. There is a (majority) vote to send a proposal to Style and Drafting. And then there is a vote (requiring support from 22 members) to send it to the ballot. I personally like the 22 number but even more important than that, I would make those vote thresholds the same. Whatever it is, I would make it the same. That way you don’t have these proposals that are viewed differently, like it or not.

There is a lot of what we did that I would recommend that they consider doing, but they will have to figure it on their own. What’s good for us doesn’t mean it’s necessarily good for the next (commission).

In 20 years, I obviously don’t know what our life is going to be like then and what our culture is going to be like then. Even in 1998, they didn’t have Twitter, Facebook or Instagram. They barely had the internet. They didn’t have the 60 percent (requirement for voter approval) like we do. So there are a number of significant things that are different about this day and age than it was 20 years ago. And it will be the same 20 years forward.

Republished with permission of the News Service of Florida.

Man pleads guilty in Fort Lauderdale airport shooting

An Alaska man pleaded guilty Wednesday to federal charges in a mass shooting last year at a Broward County airport that left five people dead and others injured, prosecutors said.

Esteban Santiago-Ruiz, 28, pleaded guilty to five counts of committing acts of violence at an international airport causing death and six counts of committing acts of violence at an international airport causing serious bodily injuries, according to a news release from the U.S. Attorney’s Office in the Southern District of Florida.

“Today the man responsible for the horrific, devastating, and tragic attack on numerous innocent people at the Fort Lauderdale airport was held accountable for his crimes,” U.S. Attorney Benjamin Greenberg said. “Although this conviction cannot restore the lives lost or forever changed by his egregious acts of violence, it shows our unwavering and united commitment to seeking justice for the victims.”

Santiago-Ruiz pulled out a handgun and started shooting in a baggage claim area inside the Fort Lauderdale-Hollywood International Airport terminal on Jan. 6, 2017, according to court documents.

The Anchorage, Alaska, man aimed “at the victims’ heads and bodies until he was out of ammunition” before a Broward sheriff’s deputy confronted him, the records show.

Santiago-Ruiz will be sentenced in August by U.S. District Judge Beth Bloom and faces up to life in prison on each of the counts related to the deaths, and up to 20 years in prison on each of the counts involving injuries.

“When the active killer fired indiscriminately in the baggage claim area on that fateful day, lives were lost and other lives were forever changed by his heartless, violent actions,” Broward County Sheriff Scott Israel said in the release. “I commend the work of our law enforcement partners and the U.S. Department of Justice that led to today’s outcome. I can only hope that the resolution of this case brings some peace to the affected families.”

State challenges ruling on life insurance law

The state is challenging a ruling by a Leon County circuit judge that part of a 2016 law imposing new requirements on life insurers is unconstitutional.

State Chief Financial Officer Jimmy Patronis and the Florida Department of Financial Services filed a notice this week in the 1st District Court of Appeal that they will fight the ruling by Circuit Judge Terry Lewis in a case brought by four life-insurance companies.

The case stems from a 2016 law that, in part, placed new requirements on insurers to try to determine if policyholders had died and to contact beneficiaries. The law was designed to spur insurers to pay benefits or to turn over unclaimed money to the state.

But Lewis ruled that part of the law requiring insurers to apply the changes retroactively to policies dating back as far as 1992 violated the companies’ constitutional due-process rights. In a seven-page order April 20, Lewis issued an injunction against applying the changes retroactively.

The notice of appeal this week, as is common, does not detail arguments the state will make at the Tallahassee-based appeals court. But in a document filed in January in circuit court, attorneys for the state contended that applying the changes to old policies is constitutional because it did not violate “vested rights.”

“For years, insurance companies ignored or avoided knowledge of the deaths of their insureds and failed to pay billions of dollars to beneficiaries, many of whom were unaware that a policy even existed,” the attorneys for the state wrote. “Plaintiffs ask the court to bless these avoidances of their existing obligation to pay monies rightfully owed to policy beneficiaries, while the amendments (changes to law) promote the fulfillment of these contracts.”

But in a motion for summary judgment last year that led to Lewis’ ruling, attorneys for the insurance companies argued it was unconstitutional to apply the changes to old policies, including policies that might have ceased for various reasons. The insurers filing the case were United Insurance Company of America, The Reliable Life Insurance Company, Mutual Savings Life Insurance Company and Reserve National Insurance Company.

“The parties do not dispute the state’s power to enforce these new rules against new life insurance policies issued after the statute’s effective date,” the motion said. “However, the state does not have the constitutional authority to enforce these substantive changes in the law retroactively against life insurance policies issued before the statute’s effective date — particularly against insurance policies that already lapsed, terminated, paid or escheated (the process of turning over unclaimed property to the state) during the last 25 years.”

Lawmakers approved the changes in 2016 after years of similar efforts by former state Insurance Commissioner Kevin McCarty. Multistate investigations, led at least in part by McCarty, resulted in Florida reaching 31 settlement agreements with life-insurance companies, including major players in the industry, according to the court document filed in January by the state’s attorneys.

The law made a series of changes, including imposing a requirement that insurers search what is known as the “Death Master File” or another comparable database annually to determine which policyholders have died, Lewis wrote. The Death Master File is a database of deaths reported to the federal Social Security Administration.

If matches are found in the searches, the law created a “presumption” of death and placed requirements on insurers to try to confirm the deaths and review policies, Lewis wrote. Among other things, the law included new requirements on insurers to contact beneficiaries after the deaths of policyholders and to inform them of benefits.

Traditionally, life insurers paid benefits only after receiving claims and proof of death, attorneys for the insurance companies wrote in the motion for summary judgment, adding that millions of “Florida residents complied with these policy requirements to claim billions of dollars in death benefits.”

Horse breeders, track battle over slots license

Thoroughbred breeders and trainers are accusing gambling regulators of erring when they allowed Calder Race Course to keep its lucrative slot-machine license after demolishing the grandstand where bettors once watched horses compete.

But during an administrative hearing Tuesday, lawyers for Calder accused the horsemen of trying to force the track to build a glitzy new stadium despite the dramatic decline in horse betting that prompted the destruction of the aged facility two years ago.

The challenge highlights the growing tension between the greyhound and horse industries and racetrack operators, who have sought to do away with live racing while keeping more-profitable gambling activities such as slots and poker, a process known as “decoupling.”

The Florida Horsemen’s Benevolent and Protective Association filed the complaint against state gambling regulators last year, after the Division of Pari-Mutuel Wagering renewed the slots license for the Miami Gardens casino.

Under Florida law, slot-machine gaming areas must be “contiguous and connected to the live gaming facility.”

The complaint alleges that the renewal of Calder’s slot-machine license after the grandstand was torn down amounts to an “unadopted rule.”

In general, the horsemen want slots players to be able to view live races, believing that seeing the activity will enhance the odds that gamblers will also wager on horses.

When Calder added slots in 2010, the area where gamblers played the machines was connected to the live gaming facility, the parties involved in the case agreed.

But after the 400,000-plus square foot grandstand was razed in 2016, only a partially covered sidewalk now connects the slots area and the live racing area, Bradford Beilly, the horsemen’s lawyer, argued.

The destruction of the grandstand “materially changed” the configuration of the track, Beilly told Administrative Law Judge Lawrence P. Stevenson.

“There is nothing between the slots facility anymore and whatever Calder deems to be its live gaming facility,” he said.

But James Lewis, a lawyer who represents the state Division of Pari-Mutuel Wagering, said that “but for the demolition of the grandstand, Calder’s layout remains the same.”

The “contiguous and connected” requirement is fulfilled “by a sidewalk,” he said.

The complaint about the alleged unadopted rule is “a red herring,” said attorney Wilbur Brewton, who represents Calder.

“What this case is really all about is that the horsemen want to dictate how Calder should operate its pari-mutuel business” and “tell Calder to build an air-conditioned grandstand building,” he said.

According to testimony Tuesday and court records, Calder began tearing down the grandstand in 2015, about a year after its parent company, Churchill Downs, reached a deal with The Stronach Group, which owns Gulfstream Park. Under the agreement, Gulfstream — which is eight miles away — runs 40 races a year at Calder, the minimum number of live races required for Calder to maintain its slots license.

The tracks, which are also required to have revenue-sharing agreements with horsemen’s associations, cut a deal with the Florida Horsemen’s Benevolent and Protective Association in which the breeders and trainers receive 10 percent of the revenue generated by the slots at the Calder site, according to testimony Tuesday. That amounts to about $8 million a year from the $80 million that Calder generates in revenue from slots,  Calder President and General Manager Maureen Adams told the judge.

The track decided to “outsource” the races because it was losing about $5.5 million a year on the horse races, Adams said.

When asked if she was concerned that tearing down the grandstand could put Calder’s slots license at risk, Adams answered: “Absolutely not.”

Beilly also raised the decoupling issue with Adams, asking her — over Brewton’s objections — if Calder wanted to eliminate live racing.

“We have actively participated with all other pari-mutuels in South Florida in a quest to have the legislation changed so that we could be free to either conduct pari-mutuel wagering or not, based on customer demand and whether or not the customer demand is there and whether or not the activity could be profitable,” she said.

The horsemen’s association first notified gambling regulators about concerns regarding Calder’s slots license in October 2016, after the demolition was completed, according to court records.

Division employees — including two investigators — visited the site after the demolition but did not launch any official inquiries into whether the changes would affect the slots license, according to Tuesday’s testimony.

But Beilly said that gambling regulators never formally ruled that the walkway met the requirements of the law.

“Where on record did anybody at the division make a conclusion, other than issuing licenses, that they (Calder) remained in compliance once the facility was knocked down?” Beilly asked.

The judge didn’t give any indication of how he might rule in the case, but said it seemed “that basically not a whole lot of thought was given to” the demolition.

“The investigator went out and said, eh, it’s contiguous. It wasn’t a big deal to the division until your client made it an issue,” Stevenson told Beilly, adding that regulators treated the elimination of the grandstand as if “it wasn’t a big deal.”

“…That’s what I’m going to walk away with, that impression, for better or worse. It’s contiguous. It hasn’t moved. The grandstand’s gone. Nothing else has moved. That may be good enough,” the judge said, describing gambling regulators’ attitude toward the demolition.

Stevenson said he is “up in the air” about his conclusions, and that his impression could benefit either side.

“Depends on whether I think it’s a big deal or not, to knock down the grandstand,” he said.

After the hearing, Beilly maintained that the post-grandstand track doesn’t meet the statute’s requirements.

“Remember, it needs to be connected to a live gaming facility, and that word live gaming facility doesn’t fit into walking across pavers,” Beilly told The News Service of Florida. “So, that was the whole point of the statute, that it would be connected and be contiguous to the live gaming facility — which was the original grandstand building — and once it’s gone it’s connected to nowhere.”

Special Session on school funding appears dead

With Republicans lining up in opposition, a Democratic attempt to spur a Special Legislative Session on education funding appeared dead Tuesday.

After a request by Democrats triggered the process, lawmakers are being polled this week about whether they want to hold a Special Session.

Three-fifths of the members of each Republican-dominated chamber must support the request for a special session to be held. For the House, that means support from at least 70 of the current 117 members. The Senate needs 23 yes votes from the current 39 members.

But the Department of State released results late Tuesday afternoon that showed 52 House members opposed to a special session and 36 in favor.

Even if supporters could round up the remaining 29 votes — which is highly unlikely — they would fall short of the 70 votes needed in the House to hold a session. In the Senate, 11 Democrats had supported holding a Session, while nine Republicans had opposed it.

Lawmakers have until noon Thursday to vote.

Tribe continues challenge to state utility taxes

The Seminole Tribe of Florida has gone to a federal appeals court as part of a long-running legal dispute about whether the tribe should be shielded from state utility taxes on electricity used on reservation land.

Lawyers for the tribe last week filed a notice of appeal after a federal judge refused to reconsider his decision to dismiss a lawsuit filed by the Seminoles against the Florida Department of Revenue.

As is common, the notice of appeal does not detail the arguments that the tribe will make to the Atlanta-based 11th U.S. Circuit Court of Appeals. But U.S. District Judge Robert Scola dismissed the lawsuit because he said it essentially involved the same issues as an earlier case in which the appeals court rejected the tribe’s challenge to state utility taxes.

The legal dispute deals with issues such as tribal sovereignty and federal limits on the power of the state to impose taxes on tribal land. In the latest case, the Seminoles are seeking a ruling on the constitutionality of the state taxing electricity used for 14 types of activities on tribal land, including law enforcement, education, health care, agriculture and gaming.

“The defendant (Department of Revenue) imposes and collects the utilities tax on utilities services that the tribe uses to conduct activities on tribal land that it contends to be exclusively and pervasively regulated by federal law and/or to constitute the exercise of its sovereign functions or the ‘use’ of its tribal land, all in violation of the tribe’s federal rights,” attorneys for the tribe wrote in a court document last year.

But Scola pointed to a 2015 ruling by the appeals court in dismissing the latest case. The 2015 ruling said that what is known as a state “gross receipts tax” on electricity is imposed on utility companies and not directly on customers. The tribe had argued that the tax dollars would come from the Seminoles for electricity used on tribal lands. As a result, the tribe argued it should not have to pay the state tax.

Scola wrote that the tribe was seeking the “same basic relief” in the latest case and that it should be precluded from moving forward.

“At their core, the essential facts in both cases are the same: The tribe uses utilities, including electricity, on its tribal land; Florida imposes a utilities tax on the utilities services provided to the tribe,” the judge wrote in dismissing the case.

But the tribe said in the filing last year that the legal issues in the cases are “entirely different,” at least in part because the latest case focuses on the 14 types of activities, rather than a broader question about the utility tax.

“In the prior case, the Eleventh Circuit held that federal law does not generally preempt the utilities tax on all utilities services used on tribal land as a matter of law simply because some of the services are used to conduct activities that are exclusively and pervasively regulated by federal law,” the filing said. “That holding is not an issue in the current case. In the current case, the tribe asked the court to determine whether the federal regulation of any or all of 14 specifically enumerated activities is exclusive and pervasive, such that federal law preempts the utilities tax on utilities services used to conduct those activities. The tribe also asked the court to determine whether any or all of those 14 specifically enumerated activities constitute the exercise of the tribe’s sovereign functions or the ‘use’ of tribal land.”

‘Framers’ of schools amendment seek role in court battle

Some members of the 1998 Constitution Revision Commission are seeking to file a brief in the Florida Supreme Court as part of a legal battle about whether the state is meeting its constitutional duty to provide a high-quality system of public schools.

Describing themselves as the “framers” of a 1998 ballot measure that put the duty in the Constitution, the former commissioners filed a motion Tuesday asking for approval to file a friend-of-the-court brief.

A footnote in the motion indicates 10 former commissioners want to join in the brief, including former Attorney General Bob Butterworth, former Supreme Court Justice Gerald Kogan and former House Speaker Jon Mills.

The motion came in a long-running legal battle led by the group Citizens for Strong Schools, which argues that the state has failed to comply with the 1998 voter-approved amendment.

A Leon County circuit judge and the 1st District Court of Appeal rejected the arguments, leading Citizens for Strong Schools and other plaintiffs to go to the Supreme Court.

The 1998 constitutional amendment says it is a “paramount duty of the state to make adequate provision for the education of all children residing within its borders.” The amendment fleshed that out, in part, by saying adequate provision will be made for a “uniform, efficient, safe, secure, and high quality system” of public schools. The plaintiffs argue the state has not met those standards and should be forced to take steps to carry out the constitutional amendment.

But the 1st District Court of Appeal said, in part, it is not the role of judges to determine education policy.

In the motion filed Tuesday, the former Constitution Revision Commissioners said they want to address such issues in support of the plaintiffs.

“The commissioners, who are to be parties on this brief, were the framers of the (Florida Constitution) Article IX education amendments, and they wish to convey to the (Supreme) Court … their intent and legal basis for proposing the amendments to Article IX along with a legal analysis of how and why the 1998 amendments to Article IX provide judicially manageable standards, so that Florida children have access to the courts when it comes to their education,” the motion said.

The state opposes the commissioners filing the brief, the motion indicated.

Judge faces discipline for racially derogatory remarks

A Miami-Dade County circuit judge could face a 30-day suspension without pay and a public reprimand after an investigation into racially derogatory remarks and an improper conversation with an attorney, according to documents posted Monday on the Florida Supreme Court website.

Circuit Judge Stephen Millan has acknowledged making the remarks and conducting what is known as an improper “ex parte communication” with the attorney, an investigative panel of the Florida Judicial Qualifications Commission said in the documents.

In one instance, Millan used the racial epithet “moolie” to describe an African-American defendant during a one-on-one conversation with the defendant’s lawyer.

In another instance, while on a break with attorneys in his chamber, Millan instructed a bailiff to return to the courtroom and retrieve his wallet because he didn’t “trust it in there with those thugs,” the investigative panel wrote in its findings and disciplinary recommendations.

A defense attorney believed Millan was referring to his client or the client’s family or friends. The “ex parte” conversation involved a phone call Millan made to the defense attorney several days after the “thugs” remark. The attorney said he was uncomfortable talking without the prosecution present, but the judge went on to talk about at least six of the attorney’s cases.

The investigative panel recommended that Millan face a 30-day suspension and a public reprimand and pay a $5,000 fine.

The panel said Millan had agreed to the disciplinary measures, though the Supreme Court has ultimate authority to hand out punishments for judges.

“The use of racist epithets by a judge is repugnant to the perception of a fair and impartial judiciary, and irreconcilable with core tenants of our justice system,” the panel said in its findings and recommendations. “The (Florida Judicial Qualifications) Commission has found, and Judge Millan has agreed, that the allegations found in the notice of formal charges have been demonstrated by clear and convincing evidence. Judge Millan has admitted and acknowledged that his conduct was wrong, and he understands the impact that such conduct has on the public’s perception of the judiciary. He has expressed deep remorse not only for his comments, but for the stain that his remarks brings upon his colleagues, and the judicial system in its entirety.”

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