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Filing # 37767712 E-Filed 02/12/2016 03:01:01 PM

IN THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT


IN AND FOR HERNANDO COUNTY, FLORIDA
HERNANDO COUNTY,
Petitioner,
vs.

Case No.: H-27-2016-CA-15-DS

CITY OF BROOKSVILLE,
Respondent.
_______________________/
AMENDED PETITION FOR WRIT OF CERTIORARI
Petitioner, HERNANDO COUNTY (the County), by and through its
undersigned counsel and pursuant to Fla. R. App. P. 9.100, seeks certiorari review of
five ordinances passed by Respondent, CITY OF BROOKSVILLE (the City).1
I.

QUESTIONS PRESENTED
A.

Whether a municipalitys annexation of previously unincorporated

property constitutes a voluntary annexation pursuant to Fla. Stat. 171.044, where


the municipality actually petitioned itself for the annexation in its purported capacity
as the property owners attorney-in-fact.

To create a consecutively paginated record, each page of the Appendix has


been Bates stamped in the upper and lower right hand corners in blue. The
Appendix, a .pdf file, contains an embedded bookmark for each tab. Accordingly,
citations to the record shall be in the form of (App. at Tab #, p. #).
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B.

Whether a municipalitys annexation ordinance is valid where its

enactment creates an enclave or finger of unincorporated land to exist within the


municipalitys borders.
C.

Whether a power-of-attorney granted by a property owner to a

municipality in exchange for the provision of utility services constitutes the required
grant of an agency with an interest so as to make the power-of-attorney irrevocable.
D.

Whether a municipalitys annexation of property that creates an enclave

is constitutionally valid, where the enclaves residents are predominately AfricanAmerican as a result of the municipalitys since-repealed de jure racial segregation.
II.

THE BASIS FOR INVOKING JURISDICTION


The County asks this Court to quash Ordinance Nos. 854, 855, 857, and 859

that were adopted by the City on December 7, 2015, and Ordinance 862 that was
adopted by the City on December 21, 2015 (collectively the Annexation
Ordinances). Jurisdiction is vested in this Court by Article V, Section 5(b) of the
Florida Constitution, Fla. Stat. 171.081, and Fla. R. App. P. 9.100. The County is
a party affected because it is the governmental unit with jurisdiction over the area to
be annexed, and thus, has standing to bring this action.2
City of Tampa v. Hillsborough County, 504 So. 2d 10, 11 (Fla. 2nd DCA
1986); City of Sunrise v. Broward County, 473 So. 2d 1387, 1389 (Fla. 4th DCA
1985).
2

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III.

MAP OF THE CHALLENGED ANNEXATIONS


The challenged annexations are shown on Figure 13 below:
Figure 1

On Figure 1, the property annexed in Ordinance No. 854 is in red; the property
annexed in Ordinance No. 855 is in pink; the property annexed in Ordinance No. 857
is in yellow; the property annexed in Ordinance No. 859 is in purple; and the property
annexed in Ordinance No. 862 is in blue. The Citys territory is cross-hatched.
Figure 1 was created by using the GIS mapping services at
https://www.hernandocountygis-fl.us/publicmapgallery/, last visited January 25,
2016.
3

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IV.

STATEMENT OF THE GOVERNING LAW


A.

THE MUNICIPAL ANNEXATION AND CONTRACTION ACT

Article 8, Section 2(c) of the Florida Constitution vests the Legislature with the
exclusive power over municipal annexations.4 The Legislature may share its power
with municipalities by general or special law.5
In the Municipal Annexation and Contraction Act (the Annexation Act),6 the
Legislature sets the procedures by which municipalities can alter the extent of their
own borders.7 Municipalities must act in strict accord with the Annexation Act,8
as it expressly preempts municipalities from annexing territory by any other means.9

E.g., North Ridge Gen. Hosp., Inc. v. City of Oakland Park, 374 So. 2d 461,
464 (Fla. 1979), appeal dismissed, 444 U.S. 1062 (1980).
4

Fla. Const. Art. 8, 2(c). See also Fla. Stat. 166.021(3)(a) (excluding
from municipal home rule powers [t]he subjects of annexation, merger, and
exercise of extraterritorial power . . . .).
5

Codified as Fla. Stat. Ch. 171. See also SCA Servs. of Florida, Inc. v. City
of Tallahassee, 418 So. 2d 1148, 1149 (Fla. 1st DCA 1982).
6

Pinellas County v. City of Largo, 964 So. 2d 847, 849 (Fla. 2nd DCA 2007).

Smith v. Ayres, 174 So. 2d 727, 729 (Fla. 1965). See also McGeary v. Dade
County, 342 So. 2d 549, 551 (Fla. 3rd DCA 1977); Town of Mangonia Park v.
Homan, 118 So. 2d 585, 588 (Fla. 2nd DCA 1960).
8

Compare Fla. Stat. 171.022 with City of Ormond Beach v. City of


Daytona Beach, 794 So. 2d 660, 661, n.1 (Fla. 5th DCA 2001) rehearing denied.
See also SCA, 418 So. 2d at 1150.
9

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The Annexation Act authorizes two alternative methods by which


municipalities can annex territory: (1) standard, involuntary annexations, and (2)
property-owner-initiated voluntary annexations.
B.

INVOLUNTARY ANNEXATIONS

The Annexation Act creates a standard method, known as an involuntary


annexation, by which municipalities can annex property. A municipality begins the
process by satisfying three conditions precedent.
First, the city council must prepare a report on the proposed annexation that
contains maps showing the present and proposed municipal boundaries; the existing
major trunk water mains; the existing sewer interceptors and out-falls; the proposed
extensions of such mains and out-falls, if required; and the general land-use pattern
in the area to be annexed. Also, the report must include a statement certifying that
the area to be annexed is contiguous to the municipality's existing boundaries, that the
area is reasonably compact, and that no part of the area lies within another
municipality.10 Finally, the report must detail how the city will provide municipal
services to the area to be annexed.11

10

Compare Fla. Stat. 171.042(1)(b) with Fla. Stat. 171.043.

Fla. Stat. 171.042(1)(c). Please note that the subsection delineates


exactly what data the municipality needs to include in the report.
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Second, the city council must provide a copy of the report to the board of
county commissioners of the county wherein the city is located at least 15 days in
advance of the councils first scheduled hearing on the proposed annexation
ordinance. The Annexation Act cautions that the failure to timely file the report with
the county may be the basis for a cause of action invalidating the annexation.12
Third, [t]he governing body of the municipality shall, not less than 10 days
prior to the date set for the first public hearing [on the proposed annexation
ordinance], mail a written notice to each person who resides or owns property within
the area proposed to be annexed. The notice must describe the annexation proposal,
the time and place for each public hearing to be held regarding the annexation, and
the place or places within the municipality where the proposed ordinance may be
inspected by the public.13
Once a municipality satisfies the prerequisites, it can then proceed to consider
an annexation ordinance.
The Annexation Act requires that [p]rior to the adoption of the ordinance of
annexation, the [municipalitys] governing body shall hold at least two advertised
public hearings. The first public hearing shall be on a weekday at least 7 days after

12

Fla. Stat. 171.042(2).

13

Fla. Stat. 171.042(3).


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the day that the first advertisement is published. The second public hearing shall be
held on a weekday at least 5 days after the day that the second advertisement is
published.14
The annexation ordinance must then be approved by the affected areas voters
in referendum held within thirty days. Voter approval is not required, however, if no
registered voters live in the territory to be annexed.15 Also, no referendum is required
if non-voters (e.g., residents of other states, corporations, etc.) own more than seventy
percent of the total area to be annexed, and the owners of more than fifty percent of
the land in the area consent to the annexation, provided that the city council receives
the consents before it adopts the annexation ordinance.
C.

VOLUNTARY ANNEXATIONS

Fla. Stat. 171.044 allows [t]he owner or owners of real property in an


unincorporated area of a county which is contiguous to a municipality and reasonably
compact may petition the governing body of said municipality that said property be
annexed to the municipality.16

14

Fla. Stat. 171.0413.

15

Id.

16

Fla. Stat. 171.044(1).


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As a condition precedent to considering a voluntary annexation petition, the


Annexation Act requires a municipalitys governing body to determine that the
petition bears the signatures of all owners of property in the area proposed to be
annexed.17 The Annexation Act does not allow for an agent or an intermediary to
sign a petition on behalf of a property owner.
Assuming that a property owners voluntary annexation petition has been
validly executed, the Annexation Act establishes two criteria that the applicable
property must meet as a prerequisite for annexation.
First, the parcel to be annexed must be reasonably compact. Compactness
exists where the land to be annexed is concentrated in a single area.18 Compactness
does not exist where the annexation would create enclaves, pockets, or finger areas
in serpentine patterns, of unincorporated land.19 The Annexation Act defines an
enclave as [a]ny unincorporated improved or developed area that is enclosed
within and bounded by a single municipality and a natural or manmade obstacle that

17

Fla. Stat. 171.044(2).

18

Fla. Stat. 171.022(2).

19

Id.
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allows the passage of vehicular traffic to that unincorporated area only through the
municipality.20
Second, the parcel must be contiguous to the municipalitys pre-annexation
boundaries.21 In other words, the area to be annexed must share a substantial part of
one of its boundaries with a pre-annexation boundary of the municipality.22
D.

VOLUNTARY ANNEXATION AS A PREREQUISITE FOR


EXTRATERRITORIAL UTILITY SERVICES

While a municipality may condition its provision of extraterritorial utility


services to unincorporated property upon the owners submission of a petition for
voluntary annexation, the municipality cannot annex a parcel in contravention of the
Annexation Acts prerequisites.23
In practice, municipalities often require the owners of unincorporated
properties to sign a preannexation agreement as a condition of providing
extraterritorial utility services. If the property to be served otherwise satisfies Section
171.044's contiguity and compactness requirements, a municipality can require the

20

Fla. Stat. 171.031(13)(b).

21

Fla. Stat. 171.044(1).

22

Fla. Stat. 171.022(1).

County of Volusia, 925 So. 2d at 344 (Such annexation defeats the basic
concept of a municipal corporation of unity and compactness.).
23

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owner to submit a petition for voluntary annexation before agreeing to provide utility
services to the property.24 This because municipal utilities have the discretion, but
not an obligation, to provide extraterritorial services.25 The municipality can even
combine the agreement to provide utility services and a petition for voluntary
annexation into a single document.26 If the parcel to be served is not yet able to
satisfy the compactness and contiguity requirements, a municipality can include in
a preannexation agreement a provision requiring the property owner to submit a
petition for voluntary annexation at such time that the parcel satisfies the
requirements, enforceable by injunction.27
The provisions of a preannexation agreement, however, are subordinate to
those of the Annexation Act. In other words, the existence of a preannexation
agreement between a municipality and a property owner does not permit a
Allen's Creek Properties, Inc. v. City of Clearwater, 679 So. 2d 1172, 1176
(Fla. 1996) (Because Clearwater has no duty to provide services to the
unincorporated land within its service area, we conclude that the City may
condition upon annexation the landowner's receipt of sewer services.).
24

Compare Fla. Stat. 180.19(1) with Allstate Insurance Company v. City of


Boca Raton, 387 So.2d 478, 479 (Fla. 4th DCA 1980).
25

26

County of Volusia v. City of Deltona, 925 So. 2d 340, 345 (Fla. 5th DCA

2006).
Generally Fla. Stat. 180.19(1) (allowing extraterritorial service upon
such terms and conditions as may be agreed between such municipalities, and the
owners or association of owners of such outside lots or lands.).
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municipality to deviate from Section 171.044's prerequisites to voluntary


annexations.28
V.

ARGUMENT # 1 - THE ANNEXATION ORDINANCES ARE VOID DUE


TO THE CITYS NON-COMPLIANCE WITH THE ANNEXATION
ACTS PREREQUISITES FOR THEIR ENACTMENT
A.

STATEMENT OF THE RELEVANT FACTS


1.

THE CITY OBTAINS POWERS-OF-ATTORNEY FROM


THE PROPERTY OWNERS

All five of the Annexation Ordinances originate from a property owner


granting the City the authority to file a voluntary annexation petition on his or her
behalf in exchange for the Citys provision of extraterritorial water or wastewater
services, to wit:

In a Utility Service Agreement dated May 2, 1995, the City agreed to provide
extraterritorial sewer services to St. Anthony the Abbot Catholic Church in
exchange for the property owner, the Diocese of St. Petersburg (the
Diocese), agreeing to appoint the City . . . as its irrevocable attorney in fact

County of Volusia, 925 So. 2d at 344 (Such annexation defeats the basic
concept of a municipal corporation of unity and compactness.);City of Ormond
Beach v. City of Daytona Beach, 794 So. 2d 660, 661, n.1 (Fla. 5th DCA 2001)
rehearing denied; SCA Servs. of Florida, Inc. v. City of Tallahassee, 418 So. 2d
1148, 1150 (Fla. 1st DCA 1982).
28

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with absolute and specific authority to execute and file any and all such
petitions for voluntary annexation into the City of Brooksville.29

On November 28, 2000, the City entered into a Utility Service Agreement with
Grace World Outreach Church, Inc. (Grace World),30 that contained nearly
identical annexation/power-of-attorney provisions as those to which the
Diocese had agreed five years earlier.31

On August 29, 2002, the City entered into another Utility Service Agreement
with

Brooksville Christian Church, Inc., that contained the same

annexation/power-of-attorney provision as had the prior agreements.32

The City entered into yet another Utility Service Agreement, on November 19,
2010, with the Hernando County Housing Authority. The Utility Service
Agreement contained the Citys standard annexation/power-of-attorney
provisions.33

29

Ordinance 855 at Exhibit A. (App. at Tab 2, pp. 20, 24-38)

Formerly known as the Brooksville Assembly of God. See


http://www.sunbiz.org/index.html, last visited on January 25, 2016.
30

31

Ordinance No. 854 at Exhibit A. (App. at Tab 1, pp. 1, 5-18)

32

Ordinance No. 862 at Exhibit A. (App. at Tab 5, pp. 69, 73-90)

33

Ordinance 859 at Exhibit A. (App. at Tab 4, pp. 46, 50-67)


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Finally, the City obtained its fifth power-of-attorney from Samuel and Kellie
Griffin (collectively the Griffins) in 2008. The Griffins own a parcel of real
property, located on the west side of Mildred Avenue, that is improved with a
single-family home.34 On September 19, 2008, the Griffins executed an
Irrevocable Power of Attorney appointing the City as their attorney-in-fact.
The Griffins granted the City the power to do a voluntary annexation by the
City of [their] property at such time that the City of Brooksville shall in its sole
discretion petition to annex the . . . property into the City of Brooksville.35
2.

THE CITY PETITIONS ITSELF TO VOLUNTARILY


ANNEX THE PROPERTIES

In 2015, the City petitioned itself to annex the properties as the attorney-in-fact
for the owners. The City Manager, T. Jennene Norman-Vacha, signed each of the
petitions. None of the actual property owners signed the petition. Further, the record
contains no evidence that the City provided any notice to the property owners that the
City Manager had petitioned the City for voluntary annexation.

34

https://www.hernandocountygis-fl.us, last visited January 25, 2016.

35

Ordinance 857 at Exhibit A. (App. at Tab 3, pp. 40, 44)


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3.

THE CITY ADOPTS THE ANNEXATION ORDINANCES

After holding public hearings on November 16, 2015, and on December 7,


2015, the City adopted Ordinance Nos. 854, 855, 857, and 859, that annexed the
properties owned by Grace World Outreach Church, the Diocese of St. Petersburg,
the Griffins, and the Housing Authority respectfully.36
The record contains no evidence that the City notified the property owners of
the public hearings. In fact, the record evidence demonstrates the lack of notice.
During the first reading hearing held on November 17, 2015, the Grace World
Outreach Churchs Business Administrator, Ron Hansen, testified that he had just
read the Churchs annexation petition that day.37
The City subsequently annexed the Brooksville Christian Churchs parcel by
enacting Ordinance 862, after holding hearings on December 7, 2015 and December
21, 2015. As with the prior ordinances, the record contains no evidence that the City
notified Brooksville Christian Church of the public hearings.38

(App. at Tabs 1-4, pp. 1-68; Tab 7, pp. 96-98; Tab 8, pp. 103-104, 107188; Tab 10, pp. 276-283; Tab 11, pp. 286-304, line 19)
36

37

(App. at Tab 10, p. 276, lines 19-20)

(App. at Tab 5, pp. 69-91; Tab 8, p. 106, 219-241; Tab 9, p. 244, 246-275;
Tab 11, p. 304, line 24p. 307, line 5; Tab 12, pp. 309-311)
38

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B.

LEGAL ARGUMENT
1.

ANNEXATION ORDINANCES, AS A CLASS, ARE TO BE


STRICTLY CONSTRUED FOR COMPLIANCE WITH THE
MUNICIPAL ANNEXATION AND CONTRACTION ACT.

Whether an ordinance is enacted pursuant to Section 171.0413 or to Section


171.044, courts strictly construe annexation ordinances.
As noted supra, the Legislature, when enacting the Annexation Act, elected to
share with Floridas municipalities, a small amount of the Legislatures sovereign,
constitutionally-derived power to authorize and regulate municipal annexations.
Florida courts strictly construe statutes that operate in derogation of the Legislatures
sovereignty.39 Accordingly, [w]here the power to extend boundaries has been
delegated to a municipal corporation, the power must be exercised in strict accord
with the statute conferring it.40
Put another way, a municipality has no power to extend its boundaries in any
manner other than in strict compliance with those prescribed by Annexation Act.41

State v. Love, 126 So. 374, 377 (Fla. 1930) ([I]t might also be proper to
observe that the rule is that statutes in derogation of state sovereignty are to be
strictly construed.)
39

40

Town of Mangonia Park v. Homan, 118 So. 2d 585, 588 (Fla. 2nd DCA

1960).
See Smith v. Ayres, 174 So. 2d 727, 729 (Fla. 1965); Magnolia Park, 118
So.2d at 588.
41

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2.

AS SECTION 171.044 CREATES AN EXCEPTION TO


SECTION 1 7 1 .0 4 1 3 'S OTHERWISE UNIFORM
AN N E XAT I ON P ROCEDU R E S , VO L U N T AR Y
ANNEXATION ORDINANCES ARE STRICTLY
CONSTRUED FOR COMPLIANCE WITH SECTION
171.044

Since Sections 171.0413 and 171.044 both concern the same topic, municipal
annexation, they must be interpreted in pari materia.42 The Court must therefore
construe the statutes together, and compare each to the other, in such a manner as to
preserve the force of both without destroying their evident intent, assuming that a
compatible construction is possible.43
With regard to Sections 171.0413 and 171.044, each statute contains a
reciprocal reference to the other. On one hand, Section 171.0413(4) states, Except
as otherwise provided in this law, the annexation procedure as set forth in this section
shall constitute a uniform method for the adoption of an ordinance of annexation....
On the other hand, Fla. Stat. 171.044(4) provides that [t]he method of annexation
provided by this section shall be supplemental to any other procedure provided by
general or special law....

McGeary v. Dade County, 342 So. 2d 549, 550-51 (Fla. 3rd DCA 1977)
(holding former voluntary and involuntary annexation statutes must be interpreted
in pari materia).
42

43

Id at 551.
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Structurally, Section 171.044's voluntary annexation procedures serve as an


exception, also known as proviso, to 171.0413's otherwise uniform, involuntary
procedures. In other words, a municipality can only add to its territory through
Section 171.0413's involuntary annexation procedures, except for when a property
owner applies to a municipality for the annexation.
Courts strictly construe exceptions and provisos as being limited to objects
fairly within their terms.44 A court must ascertain and give effect to legislative intent
regarding an exception as well as other parts of the statute. The proviso should be
construed together with the enacting clause to give effect to each part of the act and
carry out the Legislature's intent.45
Thus, a municipalitys annexation ordinance can only be voluntary if the
municipality strictly complied with Section 171.044 when enacting the ordinance.
If not, the annexation ordinances validity depends on whether the municipality
complied with Section 171.0413's requirements for involuntary annexations.

See Farrey v. Bettendorf, 96 So.2d 889 (Fla. 1957); Cragin v. Ocean &
Lake Realty Co., 133 So. 569 (Fla. 1931).
44

Therrell v. Smith, 168 So. 389 (Fla. 1936); State v. Nourse, 340 So.2d 966
(Fla. 3 DCA 1976).
45

rd

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3.

THE ANNEXATION ORDINANCES ARE NOT


VOLUNTARY AS THE CITY FAILED TO COMPLY
WITH SECTION 171.044 WHEN ENACTING THE
ORDINANCES

In this case, the City petitioned itself for the annexations as the attorney-in-fact
for the property owners. The City Manager signed the annexation petitions. The City
Councils agendas refer to the annexations as being city initiated. The City Planner
opened the public hearings on the then-proposed Annexation Ordinances as being
city initiated. In fact, the City did not even notify the property owners of the
annexations. Thus, the Annexation Ordinances can only be classified as voluntary
if Section 171.044 can be construed to allow a municipality to submit an annexation
petition to itself as the agent a the property owner.
The Florida Supreme Court has consistently held, [w]hen the language of the
statute is clear and unambiguous and conveys a clear and definite meaning . . . the
statute must be given its plain and obvious meaning.46 Accordingly, the task of
interpreting Section 171.044 begins with the language of the statute, construed in

Holly v. Auld, 450 So.2d 217, 219 (Fla. 1984) quoting A.R. Douglass, Inc.,
v. McRainey, 137 So. 157, 159 (1931). See also State v. Egan, 287 So.2d 1, 4 (Fla.
1973) (Where the legislative intent as evidenced by a statute is plain and
unambiguous, then there is no necessity for any construction or interpretation of
the statute, and the courts need only give effect to the plain meaning of its
terms.).
46

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accord with its ordinary or natural meaning and with a view to [its] place in the
overall statutory scheme.47
When enacting Section 171.044, the Legislature delineated separate roles to be
played by (1) the petitioning property owner, and (2) the annexing municipality. The
voluntary annexation process begins when [t]he owner or owners of real property
in an unincorporated area of a county . . . petition the governing body of [a]
municipality that said property be annexed to the municipality.48 In turn, the
municipality can only consider enacting an annexation ordinance after a
determination by the governing body of the municipality that the petition bears the
signatures of all owners of property in the area proposed to be annexed.....49 The
Legislatures decision not to define owner or owners does not create an
ambiguity in those roles. In everyday speech, people know that an owner is [t]he
person in whom is vested the ownership, dominion, or title of property; [the]
proprietor.50
King v. Burwell, 135 S. Ct. 2480, 2489 (2015) quoting FDA v. Brown &
Williamson Tobacco Corp., 529 U.S. 120, 132 (2000). See also Graham County
Soil & Water Conservation Dist. v. United States, 559 U.S. 280, 290 (2010)
(Courts have a duty to construe statutes, not isolated provisions.)
47

48

Fla. Stat. 171.044(1).

49

Fla. Stat. 171.044(2).

50

BLACKS LAW DICTIONARY 764 (6th ed, abridged, 1991).


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Thus, Section 171.044(1) and (2) clearly preclude an annexing municipality


from also signing a voluntary annexation unless the municipality actually owns the
to-be-annexed property. The application of logic, combined with strict construction,
allows for no other interpretation of the statute.
In fact, the Florida Attorney Generals Office has gone even farther and
interpreted the statute to preclude even an owners legitimate, third-party agent from
signing a voluntary annexation petition on the owners behalf. [A] petition to a
municipality for voluntary annexation that does not bear the signatures of all owners
of units in a condominium would not comply with the procedural requirements of s.
171.044(2) . . . [as a] petition signed only by an authorized officer or officers of a
condominium association or appropriate proof that 100% of the condominium's unit
owners attending the association board meeting voted to authorize the petition is not
. . . a petition bearing the signatures of all owners of property in the area proposed
to be annexed.....51
An annexation of a parcel that is not initiated by the parcels owners is
involuntary. The existence of a preannexation agreement or a power-of-attorney
cannot change that fact. Thus, the Annexation Ordinances are all invalid ab initio
unless the City complied with Section 171.0413's involuntary annexation procedures.
51

1987 Fla. Op. Attorney Gen. 143 (1987). (App. at Tab 20, pp. 336-337)
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4.

WHEN ENACTING THE ANNEXATION ORDINANCES,


THE CITY DID NOT COMPLY WITH THE
PROCEDURAL REQUIREMENTS FOR INVOLUNTARY
ANNEXATIONS, SO THE ANNEXATION ORDINANCES
MUST BE QUASHED.

In this case, the City cannot even pretend that it complied with the prerequisites
for an involuntary annexation, to wit:

The City neither obtained the advance consent of the property owners, as
required by Section 171.0413(5) and (6), nor did it hold a referendum as
required by Section 171.0413(1).

The City did not mail a written notice to each person who resides or owns
property within the area proposed to be annexed within 10 days prior to the
date set for the first public hearings on the Annexation Ordinances as required
by Section 171.0413(1).

The City did not prepare a report setting forth the plans to provide urban
services to any area to be annexed, as required by Section 171.042(1).

The City did not file a copy of the urban services report with the Board of
County Commissioners at least 15 days prior to beginning the process for the
annexations, as required by Section 171.042(2), even though the statute states
that the [f]ailure to timely file the report as required in this subsection may be
the basis for a cause of action invalidating the annexation.
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Accordingly, the Annexation Ordinances are invalid ab initio and must be


quashed.
VI.

ARGUMENT #2 - THE CITYS ANNEXATIONS HAVE CREATED OR


GREATLY EXACERBATED AN IMPERMISSIBLE POCKET OF
UNINCORPORATED LAND WHOLLY WITHIN THE CITYS
BORDERS
A.

THE ANNEXATION ACTS COMPACTNESS REQUIREMENT


PRECLUDES ANNEXATIONS THAT RESULT IN POCKETS OR
FINGERS IN SERPENTINE PATTERN

For a parcel of real property to be eligible for municipal annexation, the


Annexation Act requires the property to be reasonably compact.52 The Annexation
Act defines compactness as the concentration of a piece of property in a single
area and precludes any action which would create enclaves, pockets, or finger areas
in serpentine patterns.53 As the Fourth DCA held in City of Sunrise v. Broward
County, the compactness requirement promotes the general purpose and goals of a
municipal corporation: The legal as well as the popular idea of a municipal
corporation in this country, both by name and use, is that of oneness, community,
locality, vicinity; a collective body, not several bodies, a collective body of

Fla. Stat. 171.044(1); Fla. Stat. 171.031(12) (Any annexation


proceeding in any county in the state shall be designed in such a manner as to
ensure that the area will be reasonably compact.).
52

53

Fla. Stat. 171.031(12).


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inhabitants-that is, a body of people collected or gathered together in one mass, not
separated into distinct masses, and having a community of interest because residents
of the same place, not different places. So, as to territorial extent, the idea of a city
is one of unity, not of plurality; of compactness or contiguity, not separation or
segregation.54
Though the Annexation Act does not define the word pocket, the Fifth DCA
has defined the word to mean a small isolated area of land.55 The Fifth DCA, in a
later case, clarified that the smallness of a parcel is relative to, and necessarily
dependent upon, the size and configuration of the parcel and the surrounding
municipal property.56 The statutory requirement that pockets not be created by
annexations was intended to insure that no vestiges of unincorporated property be left
in a sea of incorporated property.57

City of Sunrise v. Broward County, 473 So.2d 1387, 1388 (Fla. 4th DCA
1985) (Emphasis in Original) quoting 1977 Op. Attorney Gen. Fla. 077-18,
(February 18, 1977) at 38. See also City of Center Hill v. McBryde, 952 So. 2d
599, 602, n.2 (Fla. 5th DCA 2007) (quoting City of Sunrise).
54

55

City of Sanford v. Seminole County, 538 So. 2d 113, 115 (Fla. 5th DCA

56

City of Center Hill, 952 So.2d at 603.

1989).

Id quoting Alison Yurko, A Practical Perspective About Annexation in


Florida-Making Sense of Florida Statutes Chapters 164 and 171 in 2003 and
Beyond, 32 Stetson Law Rev. 517, 533 (2003).
57

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While the Annexation Act also lacks a definition for finger areas in serpentine
patterns, the Fifth DCA has interpreted the phrase to mean projections of
unincorporated land that are winding or turning one way and another.58
B.

THE CITYS ANNEXATION OF THE GRIFFINS PARCEL


CREATES OR EXACERBATES AN IMPERMISSIBLE POCKET.

Using the Fifth DCAs definition, the Citys annexation of the Griffins parcel
thus creates or greatly exacerbates a pocket. It leaves an area of unincorporated land,
consisting of approximately 95.7 acres and approximately 100 individual parcels,
within the Citys borders, as shown on Figure 2 below.59
Figure 2

58

City of Sanford v. Seminole County, 538 So. 2d 113, 115 (Fla. 5th DCA

1989).
Figure 2 was created by using the GIS mapping services at
https://www.hernandocountygis-fl.us/publicmapgallery/, last visited January 25,
2016.
59

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On Figure 2, the crosshatched areas are within the Citys borders; the Griffins parcel
is yellow; and the pockets created by the annexation are shown in buff.
C.

THE CITYS ANNEXATION OF THE DIOCESES, GRACE


WORLDS, AND THE HOUSING AUTHORITYS PARCELS
CREATES OR EXACERBATES AN IMPERMISSIBLE FINGER
IN A SERPENTINE PATTERN

In Ordinance Nos. 854, 855, and 859, the City annexed the properties owned
by the Grace World Outreach Church, the Diocese of St. Petersburg, and the
Hernando County Housing Authority respectfully, as shown in Figure 3 below.60
Figure 3

On Figure 3, the crosshatched areas are within the Citys borders, the Griffinss parcel
is yellow, the Housing Authoritys parcel is purple, the Grace Worlds parcel is red,
and the Dioceses parcel is shown in pink.

Figure 3 was created by using the GIS mapping services at


https://www.hernandocountygis-fl.us/publicmapgallery/, last visited January 25,
2016.
60

Page 25 of 39

As Figure 4 shows, the Citys annexations of the Housing Authoritys, the


Grace World Outreach Churchs parcel, and the Dioceses parcel create a serpentine
finger of unincorporated finger consisting of approximately 75 acres, as shown on
Figure 4 below:61
Figure 4

In Figure 4, the crosshatched areas are within the Citys borders and the finger is
shown in white. At its widest point, the enclaves aperture is less than a mile wide.

Figure 4 was created by using the GIS mapping services at


https://www.hernandocountygis-fl.us/publicmapgallery/, last visited January 25,
2016.
61

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VI.

ARGUMENT # 3 - THE RECORD CONTAINS NO EVIDENCE THAT


THE GRIFFINS POWER-OF-ATTORNEY WAS STILL VALID WHEN
THE CITY ENACTED ORDINANCE NO. 857
Even if a municipality could serve as the annexation agent for a property

owner, the record contains no evidence that the power-of-attorney that the Griffins
executed in favor of the City was still valid at the time the City petitioned itself for
the annexation of their parcel.
Under Florida law, an irrevocable power-of-attorney is an agency coupled
with an interest. To constitute an agency coupled with an interest, the agents
interest must be in the property itself upon which the power is to operate and not
merely an interest in the exercise of the power or that which is to be produced by the
exercise of the power.62 As the Florida Supreme Court has held, an interest, not
amounting to a property or estate . . . but still an interest in the continued existence
of the power or authority to act . . . secured by contract, based upon a consideration
moving from the agent to the principal, and not merely for the purpose of earning a
salary or commission by the exercise of the power, but because the agent has parted
with value, at the principal's request or with his assent, looking to the exercise of the

Bowling v. National Convoy & Trucking Co., 135 So. 541, 544 (Fla. 1931);
Peacock v. American Agronomics Corp., 422 So. 2d 55, 57 (Fla. 2nd DCA 1982);
Morton v. Morton, 307 So. 2d 835, 839 (Fla. 3rd DCA 1975); Robinson v. Sax, 115
So. 2d 438, 440 (Fla. 3rd DCA 1959).
62

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power as a means of reimbursement, indemnity, or protection, creates an agency


coupled with an interest, which agency is not revocable and will in appropriate cases
be protected and enforced by courts of equity.63 Importantly, neither the titling of
a document as irrevocable nor a statement provision by the principal that he or she
shall not revoke the agency, does not constitute an agency coupled with an interest.64
The Irrevocable Power of Attorney signed by the Griffins and appointing the
City as their attorney-in-fact does not contain any provisions reciting why the Griffins
granted the City the power to do a voluntary annexation by the City of [their]
property at such time that the City of Brooksville shall in its sole discretion petition
to annex the . . . property into the City of Brooksville. Also, the power-of-attorney
does not state the consideration given by the City, if any, that supported the power-ofattorney. The record is also devoid of any evidence on these points.65
Other than the titling of the power-of-attorney as irrevocable, the City has
placed no evidence in the record that the City has a consideration-supported property
interest in its continued power to act as the Griffins agent. Accordingly, the record

63

Bowling, 135 So. at 544.

64

Peacock, 422 So. 2d at 57.

65

Ordinance 857 at Exhibit A. (App. at Tab 4, p. 44)


Page 28 of 39

contains no evidence that the City still served as the Griffins attorney-in-fact at the
time of the annexation.
VII. ARGUMENT #4 - THE CITYS PATTERN OF ANNEXATION IN
SOUTH BROOKSVILLE DISCRIMINATED AGAINST THE
AFRICAN-AMERICAN RESIDENTS OF SOUTH BROOKSVILLE
A.

THE EXISTENCE OF A PREDOMINATELY AFRICANAMERICAN RESIDENTIAL COMMUNITY IN SOUTH


BROOKSVILLE IS A VESTIGE OF DE JURE RACIAL
SEGREGATION

The City, like most southern cities, has a history of legally-mandated racial
segregation. Originally, the City legislated this de jure racial discrimination by
approving plats with racially-restrictive covenants. For example, the City approved
a plat for the Bell Terrace subdivision in 1925 that included the covenant, No
land, or any interest therein, in the Bell Terrace sub-division [sic] shall by any person
or corporation be sold or resold, conveyed, leased, or rented to, or in any way be
occupied or acquired by persons not wholly of the Caucasian race, except that the
foregoing does not apply to bonafide servants employed and living with families of
the Caucasian race residing in Bell Terrace.66

Plat of Bell Terrace, approved by the Brooksville City Council on or about


December 18, 1925, subsequently recorded at Plat Book 4, Page 7. (App. at Tab
19, p. 335)
66

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In 1948, the City enacted a zoning law that prohibited any person of the negro
race from living in the City.67
There is more than a hint of defiance in the Citys actions. The United States
Supreme Court struck down racially-discriminatory zoning laws as unconstitutional
in 1917,68 and held that the enforcement of racially restrictive covenants was
unconstitutional in 1948.69
As a result of the Citys actions, all of its African-American residents were
forced to move into South Brooksville. The area became known as the Sub[s] . . .
[which is] short for Negro Subdivisions all-black enclaves created by deed
restrictions and a city zoning law.70
The City ignored the needs of South Brooksville for decades. Flooding was
endemic, causing roadside ditches to overflow, yards to flood, and septic drain fields
E.g., Dan DeWitt, Joseph "Joe" E. Johnston Jr., Former Legislator and
Hernando School Board Attorney, Dies at 86, TAMPA BAY TIMES, May 28, 2009
(For the city, Johnston said in a 1998 interview, he wrote the 1948 zoning law
that segregated white and black residents into separate neighborhoods.). (App. at
Tab 13, p. 314)
67

68

Buchanan v. Warley, 245 U.S. 60, 82 (1917).

69

Shelley v. Kraemer, 334 U.S. 1, 20 (1948).

See Dan DeWitt, Its Time to Make Good on Promises Made to South
Brooksville, TAMPA BAY TIMES, January 17, 2009; Dan DeWitt, A Good Flood
Control Plan for South Brooksville Needs More Explaining, TAMPA BAY TIMES,
February 7, 2014. (App. at Tab 17, pp. 327-329)
70

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to become inundated with storm water. Additionally, the Subs had inadequate water
lines and an insufficient number of fire hydrants.71 The NAACP sued the City in
federal court to force the City in 1973 to provide the Subs with public
improvements.72 The City, though it subsequently received a federal grant, did not
provide any improvements. In 1981, the City received a $2.3 million federal grant
to build infrastructure in the Subs, but this money was divvied up between white
contractors who made few lasting improvements. [A] Brooksville City Council
member . . . literally laughed in the faces of black residents in 1987 when they asked
where all the money had gone.73
While the City has long-since repealed this de jure segregation, South
Brooksvilles population remains predominately African-American.

Dan DeWitt, Progress Making Inroads in South Brooksville, TAMPA BAY


TIMES, March 23, 2010. (App. at Tab 15, pp. 318-319)
71

NAACP of Brooksville v. City of Brooksville, Middle District of Florida


Case Number 77-cv-1064. (App. at Tab 16, pp. 320-326)
72

Dan DeWitt, Progress Making Inroads in South Brooksville, TAMPA BAY


TIMES, March 23, 2010. (App. at Tab 15, pp. 318-319) See also Dan DeWitt, Past
Pain Still Present, TAMPA BAY TIMES, July 5, 2005. (App. at Tab 18, pp. 337-341)
73

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B.

THE EQUAL PROTECTION CLAUSE PROHIBITS


GOVERNM ENT ACTIONS THAT INTENTIONALLY
DISCRIMINATE ON THE BASIS OF RACE

The Fourteenth Amendments Equal Protection Clause provides that [n]o


State shall . . . deny to any person within its jurisdiction the equal protection of the
laws.74 The central purpose of the Equal Protection Clause of the Fourteenth
Amendment is to prohibit states from discriminating against individuals on the basis
of race.75
A plaintiff must demonstrate that a challenged action was motivated by an
intent to discriminate in order to establish an equal protection clause violation.76 In
the context of municipal annexations, a municipalitys discriminatory purpose may
be established by proof that the [municipality] used race as a substantial or motivating
factor in its annexation decisions and practices.77
Thus, this Court must determine whether the Citys pattern of encircling, but
not annexing, an African-American neighborhood is the result of intentional racial

74

U.S. Const. amend. XIV, 1.

75

Burton v. City of Belle Glade, 178 F.3d 1175, 1190 (11th Cir. 1999).

See, e.g., Village of Arlington Heights v. Metropolitan Housing Dev.


Corp., 429 U.S. 252, 265 (1977); Washington v. Davis, 429 U.S. 229, 23948
(1976).
76

77

Burton, 178 F.3d at 1189.


Page 32 of 39

discrimination, as an otherwise neutral state action does not violate the Equal
Protection Clause just because it has a disproportionate impact on a racial minority.
Instead, courts must adhere to the basic equal protection principle that the invidious
quality of a law claimed to be racially discriminatory must ultimately be traced to a
racially discriminatory purpose.78
A court looks at four factors when determining whether a discriminatory intent
exists: (1) the nature and magnitude of the disparity created by the challenged action;
(2) foreseeability of the consequences of the defendants actions; (3) legislative and
administrative history of the decision-making process; and (4) knowledge, in that a
defendant's actions would be known to have caused the disparity or discriminatory
impact which resulted from their conduct.79
In consideration of these four factors, several other concepts rooted in civil
rights jurisprudence interplay. First, a claimant need not prove that a racial purpose
was the sole, dominant, or even the primary purpose for a challenged action, but only
that it has been a motivating factor in the decision.80 Discriminatory intent is

Washington v. Davis, 426 U.S. 229, 240 (1976); Burton, 178 F.3d at 1189;
Dowdell v. City of Apopka, 698 F.2d 1181, 1185-86 (11th Cir. 1983).
78

Arlington Heights, 429 U.S. at 26569; Ammons v. Dade City, 783 F.2d
982, 98788 (11th Cir. 1986); Dowdell, 698 F.2d at 1186-89.
79

80

Arlington Heights, 429 U.S. at 265-66.


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simply not amenable to calibration. It either is a factor that has influenced a


legislative choice or it is not.81 Second, proof of subjective personal bias, motive or
ill-will are irrelevant to the inquiry of whether intentional discrimination exists.82
Third, proof of intentional discrimination can be, indeed as it often is, developed
through circumstantial rather than direct evidence.83
C.

THE SOUTH BROOKSVILLEANNEXATION ORDINANCES


ARE VOID AS THEY CONSTITUTE A CONTINUATION OF
THE CITYS PRIOR DE JURE RACIAL SEGREGATION
POLICIES

In this case, each of the four factors supports a finding that the four annexation
ordinances were enacted with a discriminatory intent.
Disparate Impact: In proving discriminatory intent, a good starting point is
whether the challenged act bears more heavily on one race than another.84 While an
official act is not necessarily unconstitutional solely because it has a racially
disproportionate impact, the Supreme Court has nevertheless recognized that
81

Personnel Admin. of Mass. v. Feeney, 442 U.S. 256, 277 (1979).

82

Dowdell, 698 F.2d at 1185 citing Palmer v. Thompson, 403 U.S. 217, 224

(1971).
E.g., Washington, 426 U.S. at 241 (This is not to say that the necessary
discriminatory racial purpose must be express or appear on the face of the statute
...); Arlington Heights, 429 U.S. at 266.
83

Arlington Heights, 429 U.S. at 266; City of Mobile v. Bolden, 446 U.S. 55,
70 (1980).
84

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discriminatory impact may for all practical purposes demonstrate unconstitutionality


because in various circumstances the discrimination is very difficult to explain on
nonracial grounds.85 In this case, the disparate impact of the Citys pattern of
annexations, standing alone, gives rise to an inference of discriminatory intent. The
pattern is explicable only on racial grounds. The African-American community has
essentially been relegated to living in a neighborhood that is surrounded on all sides
by the City. Generations of decisions by the City have resulted in that stark
disparity.86
Foreseeable Discriminatory Consequences: The Supreme Court has recognized
that discriminatory purpose can be shown by proof that the discriminatory impact is
the reasonably foreseeable consequence of the challenged action. Thus, actions
having foreseeable and anticipated disparate impact are relevant evidence to prove
the ultimate fact, forbidden purpose, and adherence to a challenged action with full
knowledge of the predictable effects is one factor, among others, which may be

Washington v. Davis, 426 U.S. at 242. See also Arlington Heights, 429
U.S. at 266 (Sometimes a clear pattern, unexplainable on grounds other than race,
emerges from the effect of the state action even when the governing legislation
appears neutral on its face.).
85

See Castaneda v. Partida, 430 U.S. 482, 495, n. 13 (1977) (Disparity ...
sufficiently large over a period of time makes it unlikely that it [was] due solely
to chance or accident.).
86

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considered in determining purpose.87 Once again, the Citys exclusion of South


Brooksville from the Citys territory led to the foreseeable outcome of an
unincorporated and isolated African-American residential community.88
Prior Discrimination: While not dispositive (as it is in school desegregation
cases), the most logical way to analyze the cause of a racial disparity is to look at
whether there is evidence that a current practice is traceable to prior de jure
discrimination. 8 9 This analytical approach is no more than recognition of the plain
facts that present events have roots in the past, and that past conduct is significant
because it illuminates or explains the present and predicts the shape of things to
come.90 Furthermore, in evaluating specific events for evidence of intentional
discrimination, [t]he historical background of the decision is one [relevant]
evidentiary source, particularly if it reveals a series of official actions taken for

Columbus Board of Ed. v. Penick, 443 U.S. 449, 464-65 (1979). See also
United States v. Texas Ed. Agency, 564 F.2d 162, 168 (5th Cir. 1977), cert. den.,
443 U.S. 915 (1979).
87

88

See Ammons, 783 F.2d at 988.

Burton, 178 F.3d at 1190; Dowdell, 698 F.2d at 1186; Ammons, 783 F.2d
at 988 (11th Cir. 1986); Brown v. Board of School Commissioners of Mobile
County., Ala., 706 F.2d 1103, 1107 (11th Cir.) aff'd 464 U.S. 1005 (1983).
89

90

United States v. Oregon State Med. Soc., 343 U.S. 326, 332-33 (1952).
Page 36 of 39

invidious purposes.91 Between the Citys racially-restrictive plats and the 1948 de
jure segregation ordinance, the Citys history of racial discrimination is clear and
persuasive in this case. The past discriminatory actions of the City illuminate and
explain the evolution of the Citys borders and a separate, segregated AfricanAmerican residential community.
Knowledge of Discriminatory Effects: The factor of knowledge, while
perhaps difficult to disentangle from the two prior factors, supports a finding of
intentional discrimination. Anyone could foresee that the donut hole would be the
result of the Citys annexation policies.
Although none of these four factors are necessarily independently conclusive,
the totality of the relevant facts supports a finding that the Annexation Ordinances
represent the continuation of a course of conduct which inescapably evidences
discriminatory intent and which is the cause for continued exclusion of South
Brooksville from the Citys territory.

Arlington Heights, 429 U.S. at 267. See also Ammons, 783 F.2d at 988
([I]n tracing the history and development of Dade City, particularly with respect
to race relations, for its connection to present discrimination in the provisions of
the contested municipal services, the district court correctly relied upon a large
body of constitutional jurisprudence which recognizes that the historical context of
a challenged activity may constitute relevant evidence of intentional
discrimination.); Dowdell, 698 F.2d at 1186.
91

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VIII. PRAYER FOR RELIEF


THEREFORE, it is respectfully requested that this Court enter a Writ of
Certiorari quashing the Annexation Ordinances, granting an award of attorneys fees
and costs pursuant to Fla. Stat. 171.081(2), and granting such further or
supplemental relief that this Court deems just and proper.

(The Remainder of this Page Has Been Intentionally Left Blank)

Page 38 of 39

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing, and the
Appendix thereto, has been filed with the Courts ePortal system, which will provide
an email copy of the same to all counsel of record on February 12, 2016, and that a
true and correct copy of the foregoing shall be formally served upon the City of
Brooksville should this Court enter an Order to Show Cause.
/s/ Jon A. Jouben
Jon A. Jouben, Esq. (FBN: 149561)
jjouben@co.hernando.fl.us
Garth Coller, Esq. (FBN: 374849)
GarthC@co.hernando.fl.us
Randall B. Griffiths, Esq. (FBN 768091)
Rgriffiths@co.hernando.fl.us
Alt. E-Mails: cao@co.hernando.fl.us
phare@co.hernando.fl.us
20 N. Main Street, Suite 462
Brooksville, FL 34601
352-754-4122 / 352-754-4001 Fax
CERTIFICATE OF COMPLIANCE
I HEREBY CERTIFY that this brief complies with the font requirements of
Fla. R. App. P. 9.100.
/s/ Jon A. Jouben
cc:

The Honorable Donald E. Scaglione


Via Hand Delivery and Via E-Mail to DES-circuitcivil@circuit5.org

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