Lawyers, What Are They Good For? Quite a Bit Actually…

LAND PLANNING AND THE UNLICENSED PRACTICE OF LAW

Ernest “EJ” A. Cox IV, Esq.Business Litigation

Professional Malpractice

S. Kaitlin Dean, Esq.Real Property

Land Use, Property Rights Litigation

Land Planning

• Land Planners

• Architects

• Landscape Architects

• Traffic Engineers

• Civil Engineers

• Environmental Consultants

“With Great Power Comes Great Responsibility”

“With Great Responsibility Comes Great Liability.”

Example 1

Willie T.: Owns Seminole Car Wash.

Background: Bought vacant property inChampionship City to build a new car wash.

Issue: Hires Larry Land Planner to handle theproject and asks what it will take to get the carwash approved.

Example 1

• Step 1: Researches the property to identify its landuse and zoning.

• Step 2: Reviews the City Code for “car wash” use.

• Step 3: A ‘car wash’ is a permitted use on the SubjectProperty.

• Step 4: Informs Willie T. that he will need to prepare asite plan application for the car wash and that itshould be approved as a by-right use if it complieswith the code.

What does Larry Land Planner Do?

• Are you providing legal advice?• Are you acting as an attorney?

What would Bobby B. Do? • Research the property to identify its land use

and zoning.• Review the City Code: The Code defines ‘car

wash’ as “an area or structure equipped withfacilities for washing automobiles.”

• A ‘car wash’ is a permitted use on the SubjectProperty.

• Inform Willie T. that he will need to prepare asite plan application for the car wash and thatit should be approved as a by-right use if itcomplies with the code.

• THE SAME EXACT THING!

Why would your client not want to hire an attorney?

• Cost

• Time

• Efficiency

• Doesn’t like attorneys

• Doesn’t think he needs one

• Any number of reasons

Why would your client want to hire an attorney?

• Expertise

• Training

• Because they have to.

Why would YOU want the client to hire an attorney?

• Unlicensed Practice of Law

• Professional Liability

CAUTION: ROUGH SEAS AHEAD

https://www.youtube.com/watch?v=WJVBvvS57j0

Where does the prohibition against the Unlicensed Practice of Law come

from? Florida Constitution provides authority:

“The supreme court shall have exclusive jurisdiction to regulate the admissionof persons to the practice of law and the discipline of persons admitted.”Florida Constitution Article 5, Section 15

Florida Bar Enforces:

“The board of governors shall act as an arm of the Supreme Court of Floridafor the purpose of seeking to prohibit the unlicensed practice of law byinvestigating, prosecuting, and reporting to this court and to appropriateauthorities incidents involving the unlicensed practice of law in accordancewith Chapter 10.” See Rules Governing the Florida Bar Rule 1-8.2

Unlicensed Practice of Law

• Two-part inquiry:

1. Is the person engaging in the practice of law;

2. Is the person authorized to do so?

Florida Bar v. Moses, 380 So. 2d 412 (Fla. 1980).

Practice of Law

If the giving of [the] advice and performance of [the]service affect important rights of a person under the law,and if the reasonable protection of the rights andproperty of those advised and served requires that thepersons giving such advice possess legal skill and aknowledge of the law greater than that possessed by theaverage citizen, then the giving of such advice and theperformance of such services by one for another as acourse of conduct constitute the practice of law.

The Florida Bar v. Sperry, 140 So.2d 587, 591 (Fla. 1962).

Obvious Examples of What NOT To Do

• Hold yourself out as a lawyer, or as providing legal advice.– Using the title Esquire – Florida Bar v. Toma

– Using the term “legal” in the name of your business – Florida Bar v Miravelle

– Using the titles: “attorney” or “lawyer” – Florida Bar v. Gordon

– Or generally holding yourself out as providing “legal services” – Florida Bar v. Borges-Caignet

• Contracts to buy or sell real estate - Keyes Co. v. Dade County Bar Association

• Warranty deeds, quitclaim deeds, land trusts, leases – Florida Bar v. Irizarry

Rules of Thumb

(1) Let your client know from the beginning that youare not a lawyer and that you are not providing legaladvice.

(2) Don’t prepare legal documents that will be binding on your client or on someone else without a lawyer involved.

POOL HOUSE

POOL

HOUSE

Example 2

• Albert lives in his 5-acre home in the Swamp.

• Albert wants to add a pool house to his back yard.

Example 2• City Code: permits only one structure on

residential lots.

• Client says: “Larry, just get the job done”

• Issue: Variances and waivers are notpermitted.

• Advice: Subdivide the property.

HOUSE

POOLPOOL HOUSE

Albert: Subdivides the property.

LOT 1 LOT 2

Pool House: Approved

Example 2

• The next year, Albert sends a letter to LarryLand Planner threatening to sue…

•What happened?

Example 2

• Was this unlicensed practice of law?

• Will Larry Land Planner get sued?

Example 3

• City Code: 25-foot setback requirement.

• Larry Land Planner: creates a 25-foot setback on the Seminole Car Wash site plan.

• Is this the Unlicensed Practice of Law?

• No.

• What’s the difference here?

Example 4

• Plan 1: air-conditioned FSU VIP waiting room

• Plan 2: covered outdoor area for UF fans

• Plan 3: covered outdoor area to dry cars

• City Code: “floor area” is based on “under air”space

• Requirement: Impact fees are based on squarefootage

Example 4

• The air-conditioned Florida State VIP club willclearly count as “under air space.”

• What about the secondary seating for UF fans?

• What about the dry area?

• Do canopy areas get included in square footage calculations?

• Do these qualify as canopy areas?

Example 4

• Is giving this advice “practicing law?”

• Are you allowed to provide this advice?

– Here, you are potentially advising your client on:

(1) what the law is; and

(2) how that law is applied to theirspecific issue.

Why is your interpretation of the Code so important?

• It can have unintended consequences.

• It lays the foundation for future assumptions.

• The “Snowball” Effect

• The client depends on you.

Negotiation v. Legal Argument

Example 5

• Willie T.’s Seminole Car Wash: does not impacttraffic.

• Existing Roadway: Deficient.• City Requirement: Pay $200,000 to help fund

roadway improvements.• Larry Land Planner: negotiates with staff and

convinces Willie T. that he should contribute$100,000 and upgrade the sidewalk and bikepath along the roadway so that they can get theproject approved.

• Willie T. agrees.

Example 5

• Would Willie T. feel differently about thisresolution had he been advised of the Floridalaw?

• How is Willie T. going to react if and whenhe finds out after the approval that thiswas a bargaining chip, NOT a requirement.

Conditions of Approval

• Parking restrictions—affect lease terms?

• Signage restrictions—affect subtenants?

• Height restrictions—affect future plans?

• Advise the client of what they are agreeing to.

Public Hearings

Are you authorized to represent your client at public hearings?

City of West Palm Beach Code of Ordinances

Agency Relationship

• Scope of employment

• What are you permitted to do?

• What are you notpermitted to do?

Quasi-Legislative

• Formulating Policy

• Broad Implications

• Lobbying

Quasi-Judicial

• Application of existing policy to a specific issue

• Close to legal work

• Agent capacity

Red Flags

• Intervening Party• Objecting Neighbors• Public Sentiment

Standard of Review

• Petition for Writ of Certiorari: appeal to thecircuit court sitting in its appellate capacity.

• Court’s review is limited to the record of theproceeding below to determine:

(2) whether government afforded parties dueprocess;

(1) whether the local government’s decisionwas based on competent substantial evidence;

(3) whether local government followed the‘essential requirements of law.’

What is Competent Substantial Evidence?

“Substantial evidence has been described as such evidence as will establish asubstantial basis of fact from which the fact at issue can be reasonablyinferred. We have stated it to be such relevant evidence as a reasonable mindwould accept as adequate to support a conclusion. In employing the adjective‘competent’ to modify the word ‘substantial,’ we are aware of the familiarrule that in administrative proceedings the formalities in the introduction oftestimony common to the courts of justice are not strictly employed. We areof the view, however, that the evidence relied upon to sustain the ultimatefinding should be sufficiently relevant and material that a reasonable mindwould accept it as adequate to support the conclusion reached. To this extentthe ‘substantial’ evidence should also be competent.” DeGroot v. Sheffield, 95So.2d 912 (Fla. 1957)

Competent Substantial Evidence

• Transcript of hearings

• Application materials

• Staff Report

• Justification Statement

• Resume

• Connect the dots for the Judge

• Cover all your bases

Example 6• Concern: car wash will increase traffic on the

road.

• Larry Land Planner: explains traffic engineer’straffic report.

• Sebastian: Objects to project during publiccomment.

OBJECTION!

• Decision: project approved.

Example 6

• Sebastian: challenges the approval because itdoes not comply with traffic regulations.

• What will Sebastian’s attorney argue in thepetition?

• No competent substantial evidence in the recordto show that the car wash meets the trafficrequirements.

• Traffic report was not submitted into evidence atthe hearing.

• Larry Land Planner is not a traffic expert.

Real Life Example

• Non-Expert Testimony regarding an expertreport does not constitute competentsubstantial evidence.

Example 7• Sebastian: intervened in the proceeding and

brought his attorney.

• Larry Land Planner: testifies regardingtraffic report.

• Objection: Expert who prepared the reportis not available.

• Decision: project approved.

Example 7

• What will the attorney argue in the petition?

• Violation of Due Process rights.

• Sebastian was denied the opportunity tocross-examine the expert who preparedthe traffic report.

Real Life Example

• Failure to bring expert witness to testify toreport violated due process.

Due Process

“[T]he quality of due process required in a quasi-judicial hearing is notthe same as that to which a party to full judicial hearing is entitled.Quasi-judicial proceedings are not controlled by strict rules of evidenceand procedure. Nonetheless, certain standards of basic fairness mustbe adhered to in order to afford due process. Consequently, a quasi-judicial decision based upon the record is not conclusive if minimalstandards of due process are denied. A quasi-judicial hearing generallymeets basic due process requirements if the parties are providednotice of the hearing and an opportunity to be heard. In quasi-judicialproceedings, the parties must be able to present evidence, cross-examine witnesses, and be informed of all the facts upon which thecommission acts.”

Jennings v. Dade County, 589 So.2d 1337 (Fla. 3d DCA 1991).

Due Process

• Public Planners• Importance of Complete Records• 42 U.S.C. § 1983• “Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any State orTerritory or the District of Columbia, subjects, orcauses to be subjected, any citizen of the United Statesor other person within the jurisdiction thereof to thedeprivation of any rights, privileges, or immunitiessecured by the Constitution and laws, shall be liable tothe party injured in an action at law, suit in equity, orother proper proceeding for redress…”

§ 1983 – What Rights are covered?

• Procedural Due Process – No Right toSubstantive Due Process

• Right not to be discriminated against

§ 1983

• Examples:– 4th DCA Sears Case

– City Ordinance Case

• Takeaway – You have an incentive to make sure the record is

full

– If you see something missing, should probably bring it up

§ 1983 – Personal Liability

• In rare cases, § 1983 claims can result inclaims against the government officialpersonally.

• Largely involves express malice and an intentto harm the other side.

• Very rare, but the claims do get brought,which makes it always important to ESTABLISHTHE RECORD

Professional Negligence

• As professionals hired by a client to do aspecific job, you can be sued for negligence ifyou make a mistake.

• Negligence in this case means – a failure to actas other land planners in the communitywould have acted in the similar circumstance.

• Likely going to look to the AICP guidelines as aframe-work for the duty of care in landplanning cases.

AICP Rules Guidelines

• Aspirational Principles– We shall have special concern for the long-range

consequences of present actions.– We shall pay special attention to the interrelatedness

of decisions.

• Rules of Conduct – We shall not accept work beyond our professional

competence unless the client or employerunderstands and agrees that such work will beperformed by another professional competent toperform the work and acceptable to the client oremployer.

Key Takeaways

(1) Always inform your client that you are not a lawyer

(2) Be honest with yourself about limitations

(3) Always think BIG PICTURE

(4) Build your record

(5) Bring your experts

PUNT!

•Go Noles!