Dibbs v. Hillsborough
County, Florida – Property
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.
Amicus brief filed 4/13/16. SCOTUS denied petition 5/23/16.
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
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)
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.
v. Johnson – Legal Reform
Florida Court of
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
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
v. Hialeah Hospital – Employment
court here will decide whether to uphold reforms to Florida’s workers’
Status: PENDING. Amicus
brief filed 12/2/15.