Date: September 20, 2013 Last Edit: June 08, 2016

Dibbs v. Hillsborough County, Florida – Property Rights

U.S. Supreme Court


In this case a small business developer requested a variance to allow a contemplated development. The County refused to grant that request, though it had granted similar requests from landowners in other parts of the County. And this was just one of a series of events in which the developer believed that he had been treated differently than similarly situated landowners. But when he alleged a violation of the Equal Protection Clause the District Court and the 11th Circuit Court of Appeals rejected his class-of-one theory because the landowners whom he said were given more favorable treatment were in different districts. In so holding the Court ruled that a landowner must be in the very same zoning district as a comparator when alleging a class-of-one violation; however, this is an impossible standard in many cases. NFIB Small Business Legal Center filed in this case to urge the Court to grant certiorari in order to clarify the proper standard for determining when landowners are sufficiently similar to proceed with a class-of-one claim. The brief argued that landowners in different districts should nonetheless be viewed as similarly situated if in fact they are subject to similar restrictions. 

Status: Amicus brief filed 4/13/16. SCOTUS denied petition 5/23/16.

Florida Bankers Association v. Dept. of Treasury – Regulatory Reform

U.S. Supreme Court

NFIB Small Business Legal Center is urging the Supreme Court to grant certiorari in this case because the D.C. Circuit ruled that businesses cannot seek pre-enforcement review of potentially illegally promulgated Department of Treasury regulations. The D.C. Circuit held that the Anti-Injunction Act blocks such lawsuits until the business has (1) violated the regulation in question, and (2) paid the fines. But, this interpretation of the AIA cannot be squared with a recent decision from the Supreme Court in Direct Marketing v. Brohl. More fundamentally, NFIB Legal Center maintains that it violates due process to require a business to violate the law and pay penalties in order to have an opportunity for judicial review. 

Status: Amicus brief filed 2/26/16. SCOTUS denied petition 6/6/16.


Hillcrest Properties v. Pasco County – Property Rights
United States Supreme Court – Petition for certiorari  (Case arises from Florida)

In this case a property owner advances a facial due process challenge to an ordinance that plainly violates the Takings Clause—in requiring landowners to dedicate land, in the footprint of a planned highway, as a condition of getting a permit approval. After prevailing in the district court, the 11th Circuit reversed, holding that the claim was barred by the statute of limitations because it was brought a few years after the ordinance was enacted. Our amicus brief urges the Supreme Court to take the case in order to make clear that a facial challenge may be advanced at any point because the constitutional injury occurs not with enactment, but with enforcement of the ordinance.

Kentner v. City of Sanibel – Property Rights
U.S. Supreme Court – cert petition

In this case the City of Sanibel, Florida enacted an ordinance prohibiting new docks along the coast. The stated purpose was to protect sea grass, but there is no exception that might allow for the construction of docks on properties that do not contain sea grass, nor any allowance for designs that might avoid damage to sea grass. Accordingly, there does not appear to be any factual justification for the ban on new docks. Nonetheless, the Federal Court of Appeal for the Eleventh Circuit upheld the City’s ordinance against a constitutional challenge, holding that the Due Process Clause of the Fourteenth Amendment does not protect property rights. Because this is a wild proposition—in conflict with a long-line of Supreme Court cases—NFIB Small Business Legal Center is asking the Supreme Court to take the case to reaffirm that property owners are protected from arbitrary and unreasonable confiscations or restrictions of property. As we argued in our brief, to withstand a constitutional challenge, there must be at least some factual justification for an abrogation of property rights.

Mobil Corporation v. Johnson – Legal Reform

Florida Court of Appeal

This appeal involves the intersection of science and law with respect to what is believed to be the first case to be tried of the thousands of asbestos cases that have been pending in the Florida courts for over a decade and that involve plaintiffs with little or no present physical impairment.  If Florida courts permit liability to be imposed without requiring plaintiffs to show that they have received a sufficient dose of a defendant’s product to develop the condition alleged, then there is a substantial risk that defendants in the countless pending Florida asbestos cases – as well as defendants in other latent injury cases – could be held liable for harms that are the fault of others.


Pasco County v. Hillcrest Property, LLP
U.S. Court of Appeals for the 11th Circuit

Hillcrest Property challenges a County ordinance requiring landowners to dedicate property to the public for planned future highways. The condition is imposed as a term of approval for any new development project when the owner holds land in the footprint of a planned future highway. NFIB Legal Center joined with Pacific Legal Foundation in arguing that this condition is unconstitutional.

Stahl v. Hialeah Hospital – Employment

Florida Supreme Court

The court here will decide whether to uphold reforms to Florida’s workers’ compensation system.

Status: PENDING. Amicus brief filed 12/2/15.

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