30449312 Why the SS Attorney for the U S Flushes the Constitution s Down His Toilet

8/9/2019 30449312 Why the SS Attorney for the U S Flushes the Constitution s Down His Toilet

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THE PIMP BEHIND THE PROSTITUTESANARCHY BRIAN ALBRITTON

SS ATTORNEY FOR THE U.S.PARODY OF LEGAL PERVERSIONS, O.R. 569/875

Naziland, Florida

Brian, why have anarchy and lawlessness become such a big thing:

Criminally claiming land is good for the country and good forU.S. business. Adolf Hitler did it extensively, and so do we as amatter of policy. Lets be patriotic here. It would be highlyunpatriotic to ever construe the Constitution in favor of pro sePlaintiffs. Our lawyers must make a living, too.

When I pimp my whores, I tell them perversions make goodprostitutes. Yes, Jennifer is a sweet little thing, and she got that


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natural talent. When I look into her eyes I see perversion andprostitution written all over her body. You know she has been doinga great job f thesepro se Plaintiffs. All they are is an unpatrioticpain in a pimps penis. Never forget these weapons of mass

deception:

Real Property Rule 1: Judicial adjudication, due process, and equalprotection are unpatriotic.

Real Property Rule 2: U.S. terror destroys titles. We call it operationoppression. Oppression destroys ownership. You get the picture.

Real Property Rule 3: Record title and record ownership mean

nothing in the U.S. It would be un-American not to obstruct justiceand not to protect our Governmental gang members.

Have a nice day. Come and see us again here in Naziland.

One last question Anarchy Brian: What are your most favorite and leastfavorite books?

Really, I dont read that much. Pimping is a hard hands-on business,

no pun intended. If I catch my whores reading any of this precedentstuff, I punish them real hard, no pun intended, and flush it down ourfilthy toilet. Go in there and read the FLUSH NOW LIST:

Florida Constitution

U.S. Constitution

Eminent Domain Statutes

Marketable Record Title Act

Hillsborough County v. Kensatt, 144 So. 393 (Fla. 1932)

State Plant Board v. Smith, 110 So.2d 401 (Fla. 1959) Daniels v. State Road Dept., 170 So.2d 846 (Fla. 1964)

Thursby v. Stewart, 138 So. 742 (Fla. 1931)

Simmons v. State, 36 So.2d 207 (Fla. 1948)

.


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CRIMES OF CORINIS

FLORIDA ATTORNEY GENERAL LEGAL OPINION, AGO 78-125,

IN SUPPORT OF CRIMES BY FEDERAL DEFENDANTS AND THEIRLAWYER JENNIFER WHORE CORINIS

SCANDAL OF GOVERNMENTAL SCAM O.R. 569/875:

NAZI STYLE TACTICS OF CRIMINAL CLAIMSThe determination and adjudication of property rights is a judicialfunction which may not be exercised by the legislative branches of

government Here, Lee County was not any judicial branch ofgovernment and had absolutely no authority to claim land.

Here, the law prohibited Lee County, FL, and/or its governing body toadjudicate any property rights. Here, the law did not recognize the hoax ofa land claim by Lee County.

Here vexatiously, the Federal Defendants deceived and perpetratedfraud upon the Court.

ISCAM O.R. 569/875 WAS AN NVALID INVASION OF THE JUDICIARY

It is a fundamental principal in this state that the determination andadjudication of property rights is a judicial function which cannot be

performed by the Legislature. Hillsborough County v. Kensatt, 144 So. 393(Fla. 1932); State Plant Board v. Smith, 110 So.2d 401 (Fla. 1959); Danielsv. State Road Dept., 170 So.2d 846 (Fla. 1964). Legislation whichconstitutes an invasion of the province of the judiciary is invalid. Thursbyv. Stewart, 138 So. 742 (Fla. 1931); Simmons v. State, 36 So.2d 207 (Fla.1948).


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right, title, or interest and all right of reversion shall be

barred and unenforceable.

With regard to the instant inquiry, therefore, it is apparent

that the Frostproof City Council does not 'own' streets which

have been dedicated to public use. Cf. AGO 078-118 in which this

office concluded that a county was not authorized to convey or

transfer ownership and control of dedicated streets to a'homeowners association' since the county possessed no legal

title in the property which it could convey or transfer. Under

such circumstances, there would appear to be no legal basis upon

which the city could require abutting fee owners to pay to secure

property interests which they already possess. See McQuillin

Municipal Corporations s. 30.189, at 123 (3rd rev. ed. 1977),

stating: 'A municipality is not entitled to compensation for loss

of a public easement in streets in which it does not own the

fee.' Accord: Lockwood & Strickland Co. v. City of Chicago, 117

N.E. 81, 82 (Ill. 1917), in which the court held, among other

things:

[I]t would be beyond the power of the city to grant or convey to

a private person or corporation the ground embraced in a vacated

street or alley. Whether a city owns the fee in an alley or

merely an easement, when it is vacated because no longer needed

for public use, the law disposes of the reversionary interest,

and the reversionary rights cannot be granted or conveyed by the

city. . . . Whether the alley was no longer needed for public

use, and whether the public interest would be subserved by its

vacation, could not be made to depend on how much the city could

get for its action. The legislative powers of a city must beexercised for the public benefit, but that does not authorize a

municipality to sell or bargain legislation as a means of

obtaining revenue.

The State Constitution provides that all natural persons shall have

the inalienable right 'to acquire, possess and protect property . .

..' Section 2, Art. I, State Const. Additionally, s. 9, Art. I, State

Const., provides that no person 'shall be deprived of . . . property

without due process of law . . ..' Section 6, Art. X, State Const.,

states that '[n]o private property shall be taken except for a public

purpose and with full compensation therefor . . ..' Thus, the

acquisition, possession, enjoyment, use, and alienation of property

and property rights are controlled by constitutional law and the

common law. Moreover, the term 'property' for purposes of the above-

cited constitutional provisions includes more than the abutting

landowner's fee simple title. As stated in Seldon v. City of

Jacksonville, 10 So. 457, 459 (Fla. 1891):

There is incident to abutting property, or its ownership, even

Page 5 of 6Advisory Legal Opinion - Municipalities, vacation of streets and roads

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The Florida Constitution

CONSTITUTION

OF THE

STATE OF FLORIDA

AS REVISED IN 1968 AND SUBSEQUENTLY AMENDED

The Constitution of the State of Florida as revised in 1968 consisted of certain revised articles as proposed by

three joint resolutions which were adopted during the special sess ion of June 24-July 3, 1968, and ratified by

the electorate on November 5, 1968, together with one article carried forward from the Constitution of 1885, as

amended. The articles proposed in House Joint Resolution 1-2X constituted the entire revised constitution with

the exception of Articles V, VI, and VIII. Senate Joint Resolution 4-2X proposed Article VI, relating to suffrage

and elections. Senate Joint Resolution 5-2X proposed a new Article VIII, relating to local government. Article V,

relating to the judiciary, was carried forward from the Constitution of 1885, as amended.

Sections composing the 1968 revision have no history notes. Subsequent changes are indicated by notes

appended to the affected sections. The indexes appearing at the beginning of each article, notes appearing at

the end of various sections, and section and subsection headings are added editorially and are not to be

considered as part of the constitution.

PREAMBLE

We, the people of the State of Florida, being grateful to Almighty God for our constitutional liberty, in order

to secure its benefits, perfect our government, insure domestic tranquility, maintain public order, and

guarantee equal civil and political rights to all, do ordain and establish this constitution.

ARTICLE I DECLARATION OF RIGHTS

ARTICLE II GENERAL PROVISIONS

ARTICLE III LEGISLATURE

ARTICLE IV EXECUTIVE

ARTICLE V JUDICIARY

ARTICLE VI SUFFRAGE AND ELECTIONS

ARTICLE VII FINANCE AND TAXATION

ARTICLE VIII LOCAL GOVERNMENT

ARTICLE IX EDUCATION

ARTICLE X MISCELLANEOUS

ARTICLE XI AMENDMENTS

4/24/2010 Statutes & Constitution :Constitution :

www.leg.state.fl.us/Statutes/index.cfm 1/104


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(c) The governor shall appoint all commissioned officers of the militia, including an adjutant general who

shall be chief of staff. The appointment of all general officers shall be subject to confirmation by the senate.

(d) The qualifications of personnel and officers of the federally recognized national guard, including the

adjutant general, and the grounds and proceedings for their discipline and removal shall conform to the

appropriate United States army or air force regulations and usages.

SECTION 3. Vacancy in office.--Vacancy in office shall occur upon the creation of an office, upon the death,

removal from office, or resignation of the incumbent or the incumbent's succession to another office,unexplained absence for sixty consecutive days, or failure to maintain the residence required when elected or

appointed, and upon failure of one elected or appointed to office to qualify within thirty days from the

commencement of the term.

History.--Am. proposed by Constitution Revision Commission, Revision No. 13, 1998, filed with the Secretary

of State May 5, 1998; adopted 1998.

SECTION 4. Homestead; exemptions.--

(a) There shall be exempt from forced sale under process of any court, and no judgment, decree or execution

shall be a lien thereon, except for the payment of taxes and assessments thereon, obligations contracted for the

purchase, improvement or repair thereof, or obligations contracted for house, field or other labor performed on

the realty, the following property owned by a natural person:

(1) a homestead, if located outside a municipality, to the extent of one hundred sixty acres of contiguous

land and improvements thereon, which shall not be reduced without the owner's consent by reason of subsequent

inclusion in a municipality; or if located within a municipality, to the extent of one-half acre of contiguous land,

upon which the exemption shall be limited to the residence of the owner or the owner's family;

(2) personal property to the value of one thousand dollars.

(b) These exemptions shall inure to the surviving spouse or heirs of the owner.

(c) The homestead shall not be subject to devise if the owner is survived by spouse or minor child, except

the homestead may be devised to the owner's spouse if there be no minor child. The owner of homestead real

estate, joined by the spouse if married, may alienate the homestead by mortgage, sale or gift and, if married,

may by deed transfer the title to an estate by the entirety with the spouse. If the owner or spouse is

incompetent, the method of alienation or encumbrance shall be as provided by law.

History.--Am. H.J.R. 4324, 1972; adopted 1972; Am. H.J.R. 40, 1983; adopted 1984; Am. proposed by

Constitution Revis ion Commiss ion, Revis ion No. 13, 1998, filed with the Secretary of State May 5, 1998;

adopted 1998.

SECTION 5. Coverture and property.--There shall be no distinction between married women and married

men in the holding, control, disposition, or encumbering of their property, both real and personal; except that

dower or curtesy may be established and regulated by law.

SECTION 6. Eminent domain.--

(a) No private property shall be taken except for a public purpose and with full compensation therefor paid to

each owner or secured by deposit in the registry of the court and available to the owner.




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ARTICLE XII SCHEDULE

ARTICLE I

DECLARATION OF RIGHTS

SECTION 1. Political power.

SECTION 2. Basic rights.

SECTION 3. Religious freedom.

SECTION 4. Freedom of speech and press.

SECTION 5. Right to assemble.

SECTION 6. Right to work.

SECTION 7. Military power.

SECTION 8. Right to bear arms.

SECTION 9. Due process.

SECTION 10. Prohibited laws.

SECTION 11. Imprisonment for debt.

SECTION 12. Searches and seizures.

SECTION 13. Habeas corpus.

SECTION 14. Pretrial release and detention.

SECTION 15. Prosecution for crime; offenses committed by children.

SECTION 16. Rights of accused and of victims.

SECTION 17. Excessive punishments.

SECTION 18. Administrative penalties.

SECTION 19. Costs.

SECTION 20. Treason.

SECTION 21. Access to courts.

SECTION 22. Trial by jury.

SECTION 23. Right of privacy.




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SECTION 24. Access to public records and meetings.

SECTION 25. Taxpayers' Bill of Rights.

SECTION 26. Claimant's right to fair compensation.

SECTION 27. Marriage defined.

SECTION 1. Political power.--All political power is inherent in the people. The enunciation herein of certain

rights shall not be construed to deny or impair others retained by the people.

SECTION 2. Basic rights.--All natural persons, female and male alike, are equal before the law and have

inalienable rights, among which are the right to enjoy and defend life and liberty, to pursue happiness, to be

rewarded for industry, and to acquire, possess and protect property; except that the ownership, inheritance,

disposition and possession of real property by aliens ineligible for citizenship may be regulated or prohibited by

law. No person shall be deprived of any right because of race, religion, national origin, or physical disability.

History.--Am. S.J.R. 917, 1974; adopted 1974; Am. proposed by Constitution Revision Commission, Revision

No. 9, 1998, filed with the Secretary of State May 5, 1998; adopted 1998.

SECTION 3. Religious freedom.--There shall be no law respecting the establishment of religion or prohibiting

or penalizing the free exercise thereof. Religious freedom shall not justify practices inconsistent with public

morals, peace or safety. No revenue of the state or any political subdivis ion or agency thereof shall ever be

taken from the public treasury directly or indirectly in aid of any church, sect, or religious denomination or in aid

of any sectarian institution.

SECTION 4. Freedom of speech and press.--Every person may speak, write and publish sentiments on all

subjects but shall be responsible for the abuse of that right. No law shall be passed to restrain or abridge the

liberty of speech or of the press. In all criminal prosecutions and civil actions for defamation the truth may be

given in evidence. If the matter charged as defamatory is true and was published with good motives, the partyshall be acquitted or exonerated.



SECTION 5. Right to assemble.--The people shall have the right peaceably to assemble, to instruct their

representatives, and to petition for redress of grievances.

SECTION 6. Right to work.--The right of persons to work shall not be denied or abridged on account of

membership or non-membership in any labor union or labor organization. The right of employees, by and through

a labor organization, to bargain collectively shall not be denied or abridged. Public employees shall not have the

right to strike.

SECTION 7. Military power.--The military power shall be subordinate to the civil.

SECTION 8. Right to bear arms.--

(a) The right of the people to keep and bear arms in defense of themselves and of the lawful authority of the

state shall not be infringed, except that the manner of bearing arms may be regulated by law.

(b) There shall be a mandatory period of three days, excluding weekends and legal holidays, between the




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purchase and delivery at retail of any handgun. For the purposes of this section, "purchase" means the transfer

of money or other valuable consideration to the retailer, and "handgun" means a firearm capable of being carried

and used by one hand, such as a pistol or revolver. Holders of a concealed weapon permit as prescribed in

Florida law shall not be subject to the provisions of this paragraph.

(c) The legislature shall enact legislation implementing subsection (b) of this section, effective no later than

December 31, 1991, which shall provide that anyone violating the provisions of subsection (b) shall be guilty of a

felony.

(d) This restriction shall not apply to a trade in of another handgun.

History.--Am. C.S. for S.J.R. 43, 1989; adopted 1990.

SECTION 9. Due process.--No person shall be deprived of life, liberty or property without due process of law,

or be twice put in jeopardy for the same offense, or be compelled in any criminal matter to be a witness against

oneself.



SECTION 10. Prohibited laws.--No bill of attainder, ex post facto law or law impairing the obligation of

contracts shall be passed.

SECTION 11. Imprisonment for debt.--No person shall be imprisoned for debt, except in cases of fraud.

SECTION 12. Searches and seizures.--The right of the people to be secure in their persons, houses, papers

and effects against unreasonable searches and seizures, and against the unreasonable interception of private

communications by any means, shall not be violated. No warrant shall be issued except upon probable cause,

supported by affidavit, particularly describing the place or places to be searched, the person or persons, thing or

things to be seized, the communication to be intercepted, and the nature of evidence to be obtained. This rightshall be construed in conformity with the 4th Amendment to the United States Constitution, as interpreted by

the United States Supreme Court. Articles or information obtained in violation of this right shall not be

admissible in evidence if such articles or information would be inadmissible under decisions of the United States

Supreme Court construing the 4th Amendment to the United States Constitution.

History.--Am. H.J.R. 31-H, 1982; adopted 1982.

SECTION 13. Habeas corpus.--The writ of habeas corpus shall be grantable of right, freely and without cost.

It shall be returnable without delay, and shall never be suspended unless, in case of rebellion or invas ion,

suspension is essential to the public safety.

SECTION 14. Pretrial release and detention.--Unless charged with a capital offense or an offense

punishable by life imprisonment and the proof of guilt is evident or the presumption is great, every person

charged with a crime or violation of municipal or county ordinance shall be entitled to pretrial release on

reasonable conditions. If no conditions of release can reasonably protect the community from risk of physical

harm to persons, assure the presence of the accused at trial, or assure the integrity of the judicial process, the

accused may be detained.

History.--Am. H.J.R. 43-H, 1982; adopted 1982.




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Florida Attorney GeneralAdvisory Legal Opinion

Number: AGO 78-125Date: October 24, 1978Subject: Municipalities, vacation of streets and roads

David B. HigginbottomCity AttorneyFrostproof

QUESTION:

Is a municipality authorized by law to require abutting landowners

who request vacation of a public street to prove a revesionary

interest in the property and pay for the proportionate costs of an

appraisal and for the proportionate appraised value of such property

interest as conditions to the vacation?

SUMMARY:

A municipality possesses no authority under the Municipal Home Rule

Powers Act to require property owners whose land abuts a dedicated

public street to 'prove a reversionary interest' or any other

property interest or property right in the streetbed prior to and as

a condition to the vacation of such street. The determination and

adjudication of property rights is a judicial function which may not

be exercised by the legislative branches of government; hence any

such exercise by a municipality does not constitute a lawful exercise

of a municipal governmental power for a municipal purpose. In

addition, while the vacation of streets in the public interest or

when the streets are no longer required for public use is a

legislative function which may be performed by a municipality, a

municipality possesses neither statutory nor constitutional authority

to exact payment for or otherwise interfere with the property rights

of landowners whose property abuts a public street as conditions to

or in exchange for the exercise of its power to vacate streets no

longer required for public use.




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Your letter advises that the Frostproof City Council has adopted a

'motion' which reads as follows:

[I]n the future a qualified appraiser [shall] be used by the city

to set the value of a street (to become property) when requested

for closure. The person or persons making the request would have

to bear the expense of the appraisal and proof of a reversionary

clause. They would be notified and bills [sic] for the appraisedproperty value before actual closing of the street could take

place. Payment to be made on date of actual closing.

Section 2(b), Art. VIII, State Const., provides in pertinent part:

Municipalities shall have governmental, corporate and proprietary

powers to enable them to conduct municipal government, perform

municipal functions and render municipal services, and may

exercise any power for municipal purposes except as otherwise

provided by law. (Emphasis supplied.)

Statutory implementation of the broad grant of home rule is provided

by Ch. 166, F. S., the Municipal Home Rule Powers Act. Section

166.051(1), F. S., of that act states in relevant part that

'municipalities . . . may exercise may power for municipal purposes,

except when expressly prohibited by law.' (Emphasis supplied.) Thus,

it is clear that the only limitation upon the exercise of power by a

municipality is that it must be exercised for a municipal purpose.

State v. City of Sunrise, 354 So.2d 1206, 1209 (Fla. 1977).

Although the phrase 'municipal purposes' is not defined by the

constitution, it is defined by s. 166.021(2), F. S., as 'any activity

or power which may be exercised by the state or its political

subdivisions.' But see City of Miami Beach v. Forte Towers, Inc., 305

So.2d 764, 765-769 (Fla. 1974) (Dekle, J., concurring), in which

Justice Dekle observed:

It is not the definition of municipal purposes found in . . . s.

166.021(2) that grants power to the municipality . . . but rather

the provision of . . . s. 166.021(1) which expressly empowers

municipalities to 'exercise any power for municipal purposes,except when expressly prohibited by law.'

It is a fundamental principal in this state that the determination

and adjudication of property rights is a judicial function which

cannot be performed by the Legislature. Hillsborough County v.

Kensatt, 144 So. 393 (Fla. 1932); State Plant Board v. Smith, 110

So.2d 401 (Fla. 1959); Daniels v. State Road Dept., 170 So.2d 846

(Fla. 1964). Legislation which constitutes an invasion of the




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province of the judiciary is invalid. Thursby v. Stewart, 138 So. 742

(Fla. 1931); Simmons v. State, 36 So.2d 207 (Fla. 1948). Thus, while

the vacation of streets is a legislative function which may be

validly delegated to municipalities (see Sun Oil Company v. Gerstein,

206 So.2d 439, 440 (3 D.C.A. Fla., 1968), AGO 075-171), no

legislative body (whether state, county, or municipal) is authorized

to invade private property rights or require abutting property owners

to prove a reversionary or any other interest in real property as acondition to the vacation of a public street. Accordingly, the action

taken by the Frostproof City Council does not constitute a municipal

purpose; and, therefore, it is outside the scope of municipal home

rule powers possessed by the municipality.

oreover, under the general rule, the interest acquired in land by a

municipal corporation for street purposes is held in trust for the

benefit of all the public, regardless of whether the corporation owns

the fee or has merely an interest therein. Sun Oil Company v.

Gerstein, supra; 30 Am. Jur.2dHighways Streets and Bridges s. 159. A

municipality is empowered to vacate streets only when the vacation isin the public interest or when the street is no longer required for

public use and convenience. 64 C.J.S. Municipal Corporations s. 1668.

Consequently, in AGO 078-118, I noted, as a caveat, with respect to

the vacation of county roads:

[I]f the general public is using the roads and streets in

question (including public service vehicles such as garbage

trucks, police, fire or emergency vehicles), then the county

should not close or vacate the roads or streets in question as

such vacation would be injurious to the public welfare or violate

individual property rights.

Applying these principles to your inquiry, it is clear that the

city council should not undertake to vacate any streets in the

absence of a determination that the general public would benefit

from the vacation or that such streets are no longer required for

the public use and convenience.

As to whether a municipality is authorized to exact charges or

payments from abutting landowners as a condition to or in

exchange for the vacation of a public street, it is necessary to

analyze the property interests possessed by the public and the

abutting or adjoining landowners in public streets.

Recently, in AGO's 078-63, 078-88, and 078-118, I examined the

elements and effect of the dedication of property for public use.

There are two basic requirements to the existence of a valid

dedication to the public. First, there must be a clearly

manifested intention by the owner of the property to dedicate it

to public use. Second, the public, through its authorized agents,

must clearly show its intent to accept the dedication. City of




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Miami v. Florida East Coast Railway Co., 84 So. 726 (Fla. 1920);

Roe v. Kendrick, 200 So. 394 (Fla. 1941). An offer of dedication

to the public may be accomplished by making and recording a plat

and selling lots with reference thereto. See, e.g., Florida East

Coast Railway Co. v. Worley, 38 So. 618 (Fla. 1905); Miami Beach

v. Undercliff Realty and Investment Co., 21 So.2d 783 (Fla.

1945); and see, s. 177.081, F. S.

However the dedication to the public is accomplished, it is clear

that such dedication does not have the effect of transferring

legal title from the grantor to the public. To the contrary, the

fee remains in the grantor (or his grantees) while the public

acquires only a right of easement in trust, so long as the

dedicated land is used for the intended purpose of the

dedication. Attorney General Opinion 078-118. Unless otherwise

specifically provided in the conveyance, the legal title of the

grantor in the dedicated property passes to the grantees of those

lots sold with reference to a plat, which lots abut the dedicated

streets. Their title extends to the center of the street subjectto the public easement. Walker v. Pollack, 74 So.2d 886 (Fla.

1954); Smith v. Horn, 70 So. 435 (Fla. 1915); New Fort Pierce

Hotel Co. v. Phoenix Tax Title Corp., 171 So. 525 (Fla. 1936);

United States v. 16.33 Acres of Land in County of Dade, 342 So.2d

476, 480 (Fla. 1977); cf. Emerald Equities v. Hutton, 357 So.2d

1071 (2 D.C.A. Fla., 1978). Therefore, a street in which the

public has only an easement when properly vacated ceases to be a

street; the abutting landowners continue to hold fee simple title

to the center of the vacated roadbed unencumbered by the

easement. Smith v. Horn, supra; Robbins v. White, 42 So. 841,

843-844 (Fla. 1907); AGO 078-118.

See alsos. 177.081(1), F. S., providing that every plat of a

subdivision filed for record must contain a dedication by the

developer; s. 177.081(2), F. S., providing that all streets,

rights-of-way, and public areas shown on plats approved by the

affected local governments shall be deemed dedicated to the

public for the uses and purposes stated in such plat, unless

otherwise stated therein by the dedicator; s. 177.085(1), F. S.,

providing that when any landowner subdivides his land and

dedicates streets or roadways on the plat but reserves unto the

dedicator the reversionary interests in the dedicated streets or

roadways, and thereafter conveys abutting lots, such conveyance

carries with it the reversionary interest in the abutting street

to the center line, unless the landowner clearly provides

otherwise in the conveyance; and s. 177.085(2), F. S., providing

that prior holders of any interest in the reversionary rights in

the streets and roads in recorded plats of subdivided lots, other

than the owners of abutting lots, 'shall have 1 year from July 1,

1972, to institute suit . . . to establish or enforce the right,'

and that, if no such action is instituted within that time, any




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things:












obtaining revenue.


















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where the abutter's fee or title does not extend to the middle of

the street, but only to its boundary, certain property rights

which the public generally do not possess. They are the right of

egress and ingress from and to the lot by the way of the street,

and the right of light and air which the street affords. Viewing

property to be not the mere corporal subject of ownership, but as

being all the rights legally incidental to the ownership of such

subject, which rights are generally said to be those of user,exclusion, and disposition, or the right to use, possess, and

dispose of, . . . we are satisfied that the rights just mentioned

are within the meaning of the word 'property,' as it is used in

this constitutional provision. [10 So. 457, 459 (1891)

(construing s. 12, Declar. Rts., State Const. 1885, in part a

predecessor of s. 6, Art. X, State Const.).]

See alsoLutterloh v. Mayor and Council of Town of Cedar Keys, 15

Fla. 306, 308 (1875); City of Miami v. East Coast Ry. Co. , 84 So.

726, 729 (Fla. 1920); McCorquodale v. Keyton, 63 So.2d 906 (Fla.1956); Monell v. Golfview Road Association, 359 So.2d 2 (4 D.C.A.

Fla., 1978).

Accordingly, it has been held that the rights of abutting or adjacent

purchasers depend on principles of law applicable to private property

rather than public dedication since these rights depend upon a

'private easement implied from sale with reference to a plat showing

streets [etc.]' rather than upon any dedication to the public

generally. Burnham v. Davis Islands, Inc., 87 So.2d 97, 100 (Fla.

1956). An abutting landowner may be entitled to compensation from a

public body when it vacates a public street for consequent loss ofaccess to such landowner's property on the theory that a property

right has been taken without compensation. See Pinellas County v.

Austin, 323 So.2d 6, 8 (2 D.C.A. Fla., 1975). If follows, then, that

the several property interests of abutting landowners are subject to

constitutional protection. Clearly the attempt by a municipality to

usurp private property rights or property interests or to barter or

sell such property rights as conditions to or in exchange for the

exercise of its legislative power to vacate streets no longer

required for public use, does not constitute a municipal purpose and

is outside the scope of municipal home rule powers.

Prepared by:

Patricia R. GleasonAssistant Attorney General




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Re-Made Man

By Mark Gordon | Managing Editor - Thursday, March 05, 2009

Brian Albritton, one of the Gulf Coasts preeminent

experts in defending those charged with white-collar

crimes, has moved to the other table: Prosecution.

On a midnight drive from Tampa to West Palm Beach a few years ago, A. Brian

Albritton was holding court on one of his favorite topics: 20th century German

philosophy.

Albritton and a passenger, a fellow attorney and colleague, were engaged in a vigorousdebate about deep thinkers such as Karl-Otto Apel and Hans-Georg Gadamer. While thepitch-black chatter bored the duos legal assistant sitting in the backseat to tears, thedebate was so spirited that they forgot to pull over for gas. By the time they got to the EastCoast, they were riding without air conditioning and going easy on the gas pedal toconserve fuel.

It was vintage Albritton.

His friends, colleagues and former employers tell similar stories. No matter the task orcause, Albritton goes into it with an all out high-quotient of passion, relentlessness andacademic fortitude. That goes from attending punk-rock concerts with his teenage sons tocooking for Billy Graham while attending divinity school to cracking courtroom one-liners.

You cannot be around Brian without being impressed with his sincerity, says BillHamilton, an attorney with Holland & Knight in Tampa that has known and worked with

4/24/2010 Re-Made Man

http://74.125.45.132/search?q=cache: 1/6


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Albritton since 1993. And he immediately makes his intellectual prowess felt.

Now the citizens and businesses of the counties on the Gulf Coast, not to mention 20-something other counties in the state, from Naples to the Florida-Georgia border, are aboutto get a taste of Albritton, 51.

Thats because the Tampa native and graduate of New College in Sarasota was recently

sworn in as U.S. Attorney for the Middle District of Florida, the largest of the threeSunshine State federal court districts. Its also one of the largest judicial districts in theSoutheast in terms of land mass and population.

Reverse approach

The appointment is unique for several reasons beyond Albrittons qualifications andbackground. For starters, Albritton is one of the only U.S. Attorneys out of 94 nationwideto be nominated under the Bush Administration and retained so far under the ObamaAdministration.

Indeed, the appointment was apolitical, or at least as non-partisan as a Washington D.C.appointment can be.

Albritton, a registered Republican, says hes not politically active and unlike several otherU.S. Attorneys nationwide, his appointment isnt a reward for fundraising or knowing theright people. U.S. Sens. Mel Martinez and Bill Nelson, a Republican and a Democrat,respectively, jointly picked Albritton for the nomination after a committee appointed by thesenators vetted his background last summer.

The process weaved its way through Washington, where the full Senate swore Albritton inOct. 15. Standing in the Senate chambers that day was a real aw-shucks moment forAlbritton, who replaces Robert ONeil, a veteran federal prosecutor who filled in as interimU.S. Attorney for about a year.

It is really kind of simple, says Albritton. There was a need and I thought I couldcontribute. I didnt do it for politics.

The appointment, however, is also somewhat unusual for its career trajectory. To acceptthe U.S. attorney position, Albritton gave up a big salary at Holland & Knight, where hewas a litigation partner for 18 years, specializing in white-collar criminal defense and patentand trademark infringement cases. Many times in the legal profession, that career movegoes the other way, when a young prosecutor becomes a defense attorney, usually to makemore money.

Albritton is taking the reverse approach, which makes sense to many who know him.Brian is an extremely knowledgeable, experienced and fair-minded attorney, says Brad




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Kimbro, an executive partner at Tampa-based Holland & Knight. He is the consummateprofessional.

Cooking a future

In the early and mid-1970s, however, Albritton was the consummate wanderer, trying tofigure out what to do with his life.

When he was 16, after just one year at Plant City High School in Hillsborough County,Albritton left the area on a hitchhiking trip. He ended up in Colorado, where he took somecollege classes at a branch of U.S. International University.

The experience opened up Albritton to what has become his life-long pursuit ofchallenging himself intellectually. He soon came back home and in 1975 he found just theplace for his burgeoning curiosity: New College in Sarasota.The school was known for its wide variety of philosophy-related class offerings and itsaversion to letter grades as opposed to the overall learning experience.

Albritton got a job as a short order cook at Cafe LEurope on St. Armands Circle whileattending New College. The sous-chef down the line from him was Raymond Arpke, whonow owns Euphemia Haye, a prominent restaurant on Longboat Key.

Arpke chuckles at the thought of Albritton becoming a distinguished attorney in charge ofprosecuting federal crimes in 35 Florida counties. Not that Arpke thought Albritton wasntcapable of doing anything he wanted in life, but its a long way from long hair dudesmoking filter-less cigarettes two Albritton staples of the 70s.

Back then, says Arpke, he called himself an existentialist.

After graduating New College, Albritton headed to Harvard Divinity School, where heearned a Masters degree in theological studies. He says he enrolled in the program to learnabout religion, not to become ordained. And in the process, he used his newfoundcooking skills to get a job in the schools kitchen.

That led to a job helping to prepare meals for a diverse group of visitors, including BillyGraham and the Dalai Lamas support staff.

Divinity school led to law school; Albritton eared his JD degree from Boston College LawSchool in 1988. After a two-year stint as a clerk for U.S. Middle District of Florida JudgeWilliam Terrell Hodges in Tampa, Albritton took a position with Holland & Knight.

Top-secret clearance

Returning to Tampa brought back a childhood love for Albritton: Cycling. After years ofbeing off the bike, Albritton went back at it with the same vigor he displays in the




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courtroom. Says Albritton: Im wild about cycling.

He owns a Roubaix, a carbon road bike that can cost up to $3,000 and he can be seenpedaling it around South Tampa or St. Petersburg on most weekends for his 50- or 60-mile rides. He recently brought the bike to Tallahassee, where in between visiting his momhe rode around the state capital.

While Albritton says his clerkship with Judge Hodges was his most formative in the law, itwas at Holland & Knight where he grew into his own as a lawyer.

Albrittons major cases included serving as the lead defense attorney for Jeffrey Rondeau,a U.S. Army Sergeant charged with treason-related offenses in the early 1990s. Rondeau, aonetime Tampa resident stationed in Germany, was accused of giving away Army andother U.S. government secrets to the Czechoslovakian government.

In preparing a defense for Rondeau, Albritton traveled to Germany, where he interviewed

other alleged conspirators, a trip that involved receiving top-secret clearance from the U.S.military. Rondeau pled guilty to some of the charges and was sentenced to 18 years inprison in 1994. That was my first big case, says Albritton.

Closer to home, Albritton worked as lead defense counsel on dozens of cases, many ofwhich carried a theme of protecting or restoring reputations.

In the summer of 1998, for instance, Albritton represented Secily Wilson, a TV newsreporter for the Tampa Fox affiliate. Wilson was accused of kicking and scratching a

Florida Highway Patrol trooper while resisting arrest after being pulled over for speeding.A Sumter County jury acquitted Wilson of the charges and she later won a civil suit in thecase.

But the majority of Albrittons criminal defense work, which focused on representingbusinesses and executives, was about staying out of a courtroom. He was constantlyworking behind the scenes for his clients, talking with prosecutors and investigators to tryto prevent an investigation from turning into an indictment.

Because an indictment can put a company out of a business, says Albritton, even if thecase is won in a courtroom.

The courtroom, when Albritton does get there, is another place he has shown himself torise above the standard attorney. Both colleagues and those who sat in opposition praiseAlbrittons work ethic and deep understanding of a case and the pertinent case law.

But to John Guard, a Holland & Knight attorney who considers Albritton a mentor, theU.S. Attorneys best courtroom moves are his one-liners. He has kind of got a real dry




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sense of humor, Guard says. He can shift the mood of the courtroom.

Growing caseload

The more serious business facing Albritton is the challenge of running the prosecutions ofthe Middle District of Florida, a diverse collection of agencies, departments andbureaucrats. He oversees more than 100 attorneys that are broken into criminal, civil andappellate divisions.

Albritton has recently begun traveling the district for law enforcement listening breakfasts,where any department that might come into contact with his office sends a liaison. Its apacked room at each stop, with everyone from county sheriffs deputies working on jointfederal-local investigations to U.S. immigration and drug enforcement agents.

Albrittons chief task is to prosecute crimes during a time when the office is in a growthspurt. The district prosecuted 1,384 cases in 2008, a 19% increase over the 1,163prosecutions in 2007.

In Albrittons four months in the office, those prosecutions have been varied. The listincludes the continuation of pursuing defendants in an $82 million mortgage loan fraud thatoriginated in Sarasota to recently indicting eight alleged violent gang members in Pascocounty on federal gun and drug charges.

Albritton says that so far he is just trying to keep up with ONeil, the interim U.S. Attorneyhe took over for who now runs the offices criminal division. But in keeping with the timesof the day, Albritton foresees an increase coming in investigations and prosecutions in twospecific areas mortgage fraud and white-collar prosecutions.

Consider it a warning from the former longhaired existentialist turned bike-toting topprosecutor.

He is a renaissance man, says Hamilton, the Holland & Knight attorney who debated20th century German philosophy with Albritton on the midnight car ride. Its an overusedexpression, but it really fits Brian.

REVIEW SUMMARY

Individual.A. Brian Albritton, U.S. Attorney, Middle District of Florida.

Location. The Middle District of Florida covers 35 Sunshine State counties, including theentire Gulf Coast region.

Key. Albritton is the fourth U.S. Attorney for the district since 2002, but the second to bepresidentially appointed and not serving on an interim basis.




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U.S. Attorneys Office,

Middle District of Florida

The U.S. Attorneys Office for the Middle District of Florida covers 35 counties in thestate. The headquarters is in Tampa and it has four regional offices, including one in Fort

Myers.

A. Brian Albritton, who was sworn in as the districts lead attorney in October, is thefourth U.S. Attorney to run the office since 2002. The others:

Paul Perez: Appointed by President Bush in March, 2002. Perez resigned in March 2007to accept a position as chief compliance officer with Jacksonville-based insurance firmFidelity National Financial. Perez left his position the same day former U.S. AttorneyGeneral Alberto Gonzales came under criticism for his role in firing eight federal

prosecutors in other states. Perez said his resignation was for personal reasons and notrelated to that controversy;

Jim Klindt: The first assistant under Perez. He was named Acting U.S. Attorney afterPerez left and held the position for eight months, until he was named a magistrate judge inJacksonville;

Robert ONeil: The first assistant under Klindt and a longtime criminal prosecutor in theoffice. ONeil held the interim U.S. Attorney position for a year, beginning in October,

2007. ONeil is now the head of the districts criminal prosecution division.




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UNITED STATES DISTRICT COURTMIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

JENNIFER FRANKLIN PRESCOTT,

DR. JORGE BUSSE,

Plaintiffs,

v. Case No. 2:09-cv-791-FtM-36SPC

ROGER ALEJO; KENNETH M. WILKINSON; JACK N. PETERSON; ROGERDESJARLAIS; LEE COUNTY, FLORIDA; LEE COUNTY VALUEADJUSTMENT BOARD; LORI L. RUTLAND; STATE OF FLORIDA, BOARDOF TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND; STATE

OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL PROTECTION; CHADLACH; CHARLES -BARRY- STEVENS; REAGAN KATHLEEN RUSSELL;KAREN B. HAWES; ROGER DESJARLAIS; CHARLIE GREEN; BOB JANES;BRIAN BIGELOW; RAY JUDAH; TAMMY HALL; FRANK MANN; UNITEDSTATES ATTORNEY(S); SEAN P. FLYNN; E. KENNETH STEGEBY; DAVID P.RHODES; A. BRIAN ALBRITTON; CYNTHIA A. PIVACEK; JOHNSONENGINEERING, NC.; STEVEN CARTA; MIKE SCOTT; HUGH D. HAYES;GERALD D. SIEBENS; STATE OF FLORIDA ATTORNEY GENERALWILLIAM M. MARTIN; PETERSON BERNARD; SKIP QUILLEN; TOMGILBERTSON,

__________________________________/

FEDERAL DEFENDANTS OPPOSITION TOPLAINTIFFS MOTION FOR SUMMARY JUDGMENT

The United States of America, by and through the undersigned Assistant United

States Attorney, and on behalf of the named defendants A. Brian Albritton, U.S.

Attorney for the Middle District of Florida, and David P. Rhodes, Sean P. Flynn, and E.

Kenneth Stegeby, Assistant U.S. Attorneys for the Middle District of Florida (the USAO

Defendants), submits their Opposition to Plaintiffs Motion for Summary Judgement

Against Defendant U.S. Attorneys, Notice of Case Fixing & Corruption on Record and

Conspiracy of Corruption by Legal Whores Chappell & Corinis, Notice of Criminal

Case 2:09-cv-00791-CEH-SPC Document 159 Filed 04/21/10 Page 1 of 7


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1The majority of Plaintiffs so-called summary judgment motion consists of accusationsagainst Magistrate Judge Chappell of a laundry list of misdeeds, all of which have beenrepeated ad nauseam, using scandalous and impertinent language, in Plaintiffs filings. These

allegations do not pertain to the USAO Defendants.

2

Concealment of Forged Parcel 12-44-2D-0I-00000.00A0 (Motion for Summary

Judgment).

Plaintiffs Motion should be denied in all respects. The Plaintiffs has fallen far

short of demonstrating that they are entitled to summary judgment.

STATEMENT OF UNDISPUTED FACTS

As it pertains to the USAO Defendants, Plaintiffs Complaint includes claims

against the USAO Defendants for fraudulent concealment, material misrepresentation,

conspiracy, and obstruction of justice, based on the USAO Defendants alleged

conspiracy to conceal, and to further, the Lee County defendants scheme to deprive

Plaintiffs of their property rights. Busse VII Complaint 222-230. The evidence that

Plaintiffs cite to support their concusory allegations of fraud and conspiracy by the

USAO Defendants is that a 1969 Lee County resolution was forged. The only other

pertinent fact appears to be that the USAO Defendants diagree with the Plaintiffs

position.

In their Motion, the Plaintiffs claim to be entitled to summary judgment against

the USAO Defendants on the issues in their Compalint for two reasons, as described in

their prayer for relief:

An order for Summary Judgment against said Defendant U.S. Attorneysunder FRCP 56, because said forgeries were no genuine issue as to anymaterial fact, and because Defendants never answered and/or defendedagainst the conclusively proved allegations in Plaintiffs Complaint.

Motion, p. 29.1



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3

ARGUMENT

I. PLAINTIFFS FAIL TO ESTABLISH ENTITLEMENT TO SUMMARYJUDGMENT UNDER RULE 56

Plaintiffs Motion for Summary Judgment makes no effort to comply with the

basic requirements of such a motion under Fed. R. Civ. P. 56. To prevail on a motion

for summary judgment, the moving party must establish that the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the affidavits, show

there is no genuine issue as to any material fact and that the moving party is entitled to

judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S.

317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party bears the burden

of identifying those portions of the pleadings, depositions, answers to interrogatories,

admissions, and/or affidavits which it believes demonstrate the absence of a genuine

issue of material fact. Celotex, 477 U.S. at 323; Hickson Corp. v. Northern Crossarm

Co., Inc., 357 F.3d 1256, 1259-60 (11th Cir. 2004). While the court is required to make

all reasonable inferences in favor of the party opposing summary judgment, it is not

required to make all possible inferences in the non-moving party's favor. Chapman v.

Al Transp., 229 F.3d 1012, 1023 (11th Cir. 2000) (en banc). Whether a fact is material

is dictated by the substantive law underlying the moving partys claims. Celotex, 477

U.S. at 323 (The substantive law applicable to the claimed causes of action will identify

which facts are material.)

If a moving party properly makes a summary judgment motion by demonstrating

the absence of a genuine issue of material fact, the non-moving party must go beyond

the pleadings through the use of affidavits, depositions, answers to interrogatories and



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4

admissions on file, and designate specific facts showing that there is a genuine issue for

trial. Celotex, 477 U.S. at 324.

Here, Plaintiffs have failed to establish that there are any facts in the record that

are material, let alone that there are undisputed material facts. Conclusory statements

cannot pass for facts in a summary judgment motion.

B. Plaintiffs Motion Fails to Establish Any Material Facts

The facts Plaintiffs cite in their brief are not facts at all; rather, the facts consist

of Plaintiffs insistence that a 1969 Lee County document is a forgery, and that all

defendants know that it is a forgery:

there was no genuine issue as to any material fact, becauseGovernmental forgeries D.R. 569/875" and 12-44-20-01-00000.00A0were contrary to Florida and Federal law and null and void from the outset.The fake legal descriptions in said forgeries never existed, Plat Book 3,Page 25 (1912).

It is not, however, an established fact that the document is forged or invalid. Plaintiffs

make no effort to cite to anything in the record -- other than their own statements -- to

establish any facts, material or otherwise. Thus, the Plaintiffs cannot meet their burden

to establish that there is no genuine issue as to any material fact, and summary

judgment must be denied. Celotex, 477 U.S. at 322.

C. Plaintiffs Are Not Entitled to Judgment as a Matter of law

Plaintiffs fail to state any cognizable legal arguments in support of their

conclusory allegations against the USAO Defendants. For example, they fail to plead

even the bare minimum required to state a claim for fraud. Allegations of fraud must

satisfy the heightened pleading requirement of Rule 9(b) of the Federal Rules of Civil

Procedure Rule 9(b), which requires that a party must state with particularity the



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5

circumstances constituting fraud. Fed.R.Civ.P. 9(b). Likewise, Plaintiffs must plead

with particularity that the parties to an alleged conspiracy knew of the conspiracy and

agreed to commit fraud. See Tippens v. Round Island Plantation, L.L. C., No.

09-CV-14036, 2009 WL 2365347, at *5 (S.D.Fla. July 31, 2009). Plaintiffs allegations

of misrepresentation and obstruction of justice are stated in conclusory fashion, with

absolutely no support. In addition to their failure to establish the absence of a disputed

genuine issues of material fact (or any fact), Plaintiffs can point to no issue of law on

which they would be entitled to judgment, even if they did produce material facts (which

they have not).

D. Waiver

Finally, the Plaintiffs argument that the USAO Defendants somehow waived

their defenses against the Plaintiffs Complaint is nonsense. The USAO Defendants

timely filed a motion to dismiss premised on absolute immunity, res judicata, and

frivolousness. That motion is pending. There has been no waiver. Plaintiffs argument

on this point should be rejected, along with the other arguments Plaintiffs raise in

support of their Motion for Summary Judgment.

CONCLUSION

In light of the foregoing, the USAO Defendants submit that this Court should

deny plaintiffs Motion for Summary Judgment in all respects. Additionally, the USAO

Defendants respectfully renews their request that this Court institute a pre-filing

injunction against Plaintiffs, and dismiss Plaintiffs Complaint with prejudice, for the

reasons outlined in the USAO Defendants pending motions (Dkt. No. 69 and 149).



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6

Respectfully submitted,A. Brian AlbrittonUnited States Attorney

By: s/ Jennifer Waugh CorinisJennifer Waugh CorinisAssistant United States AttorneyFla. Bar No. 49095400 North Tampa Street, Suite 3200Tampa, Florida 33602Telephone: (813) 274-6310Facsimile: (813) 274-6200Email: [email protected]



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7

Certificate of Service

I HEREBY CERTIFY that on April 21, 2010, I electronically filed the foregoing

with the Clerk of the Court by using the CM/ECF system, which will send a notice of

filing.

I FURTHER HEREBY CERTIFY that on April 21, 2010, I further served the below

listed non-participants in the CM/ECF system by U.S. mail, first class postage prepaid:

JORG BUSSE JENNIFER FRANKLIN PRESCOTTP.O. Box 11124 P.O. Box 845Naples, FL 34101-7561 Palm Beach, FL 33480-0845Plaintiff Plaintiff

/s/ Jennifer Waugh CorinisJENNIFER WAUGH CORINISAssistant United States Attorney



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This is Google's cache ofhttp://myfloridalegal.com/ago.nsf/printview/390349EE42BDFAC385256593005C0A0A. It is a snapshot of thepage as it appeared on Apr 23, 2009 23:14:42 GMT. The current page could have changed in the meantime.Learn more

Text-only versionThese search terms are highlighted: unitedstatesv16.33acres

Florida Attorney GeneralAdvisory Legal Opinion

Number: AGO 78-125Date: October 24, 1978Subject: Municipalities, vacation of streets and roads

David B. HigginbottomCity AttorneyFrostproof

QUESTION:

Is a municipality authorized by law to require abutting landowners

who request vacation of a public street to prove a revesionary

interest in the property and pay for the proportionate costs of an

appraisal and for the proportionate appraised value of such property

interest as conditions to the vacation?

SUMMARY:

A municipality possesses no authority under the Municipal Home Rule

Powers Act to require property owners whose land abuts a dedicated

public street to 'prove a reversionary interest' or any other

property interest or property right in the streetbed prior to and as

a condition to the vacation of such street. The determination and

adjudication of property rights is a judicial function which may not

be exercised by the legislative branches of government; hence any

such exercise by a municipality does not constitute a lawful exercise

of a municipal governmental power for a municipal purpose. In

addition, while the vacation of streets in the public interest or

when the streets are no longer required for public use is a

legislative function which may be performed by a municipality, a

municipality possesses neither statutory nor constitutional authority

to exact payment for or otherwise interfere with the property rights

of landowners whose property abuts a public street as conditions to

or in exchange for the exercise of its power to vacate streets no

longer required for public use.




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province of the judiciary is invalid. Thursby v. Stewart, 138 So. 742

(Fla. 1931); Simmons v. State, 36 So.2d 207 (Fla. 1948). Thus, while

the vacation of streets is a legislative function which may be

validly delegated to municipalities (see Sun Oil Company v. Gerstein,

206 So.2d 439, 440 (3 D.C.A. Fla., 1968), AGO 075-171), no

legislative body (whether state, county, or municipal) is authorized

to invade private property rights or require abutting property owners

to prove a reversionary or any other interest in real property as acondition to the vacation of a public street. Accordingly, the action

taken by the Frostproof City Council does not constitute a municipal

purpose; and, therefore, it is outside the scope of municipal home

rule powers possessed by the municipality.

oreover, under the general rule, the interest acquired in land by a

municipal corporation for street purposes is held in trust for the

benefit of all the public, regardless of whether the corporation owns

the fee or has merely an interest therein. Sun Oil Company v.

Gerstein, supra; 30 Am. Jur.2dHighways Streets and Bridges s. 159. A

municipality is empowered to vacate streets only when the vacation isin the public interest or when the street is no longer required for

public use and convenience. 64 C.J.S. Municipal Corporations s. 1668.

Consequently, in AGO 078-118, I noted, as a caveat, with respect to

the vacation of county roads:

[I]f the general public is using the roads and streets in

question (including public service vehicles such as garbage

trucks, police, fire or emergency vehicles), then the county

should not close or vacate the roads or streets in question as

such vacation would be injurious to the public welfare or violate

individual property rights.

Applying these principles to your inquiry, it is clear that the

city council should not undertake to vacate any streets in the

absence of a determination that the general public would benefit

from the vacation or that such streets are no longer required for

the public use and convenience.

As to whether a municipality is authorized to exact charges or

payments from abutting landowners as a condition to or in

exchange for the vacation of a public street, it is necessary to

analyze the property interests possessed by the public and the

abutting or adjoining landowners in public streets.

Recently, in AGO's 078-63, 078-88, and 078-118, I examined the

elements and effect of the dedication of property for public use.

There are two basic requirements to the existence of a valid

dedication to the public. First, there must be a clearly

manifested intention by the owner of the property to dedicate it

to public use. Second, the public, through its authorized agents,

must clearly show its intent to accept the dedication. City of




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things:












obtaining revenue.


















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where the abutter's fee or title does not extend to the middle of

the street, but only to its boundary, certain property rights

which the public generally do not possess. They are the right of

egress and ingress from and to the lot by the way of the street,

and the right of light and air which the street affords. Viewing

property to be not the mere corporal subject of ownership, but as

being all the rights legally incidental to the ownership of such

subject, which rights are generally said to be those of user,exclusion, and disposition, or the right to use, possess, and

dispose of, . . . we are satisfied that the rights just mentioned

are within the meaning of the word 'property,' as it is used in

this constitutional provision. [10 So. 457, 459 (1891)

(construing s. 12, Declar. Rts., State Const. 1885, in part a

predecessor of s. 6, Art. X, State Const.).]

See alsoLutterloh v. Mayor and Council of Town of Cedar Keys, 15

Fla. 306, 308 (1875); City of Miami v. East Coast Ry. Co. , 84 So.

726, 729 (Fla. 1920); McCorquodale v. Keyton, 63 So.2d 906 (Fla.1956); Monell v. Golfview Road Association, 359 So.2d 2 (4 D.C.A.

Fla., 1978).

Accordingly, it has been held that the rights of abutting or adjacent

purchasers depend on principles of law applicable to private property

rather than public dedication since these rights depend upon a

'private easement implied from sale with reference to a plat showing

streets [etc.]' rather than upon any dedication to the public

generally. Burnham v. Davis Islands, Inc., 87 So.2d 97, 100 (Fla.

1956). An abutting landowner may be entitled to compensation from a

public body when it vacates a public street for consequent loss ofaccess to such landowner's property on the theory that a property

right has been taken without compensation. See Pinellas County v.

Austin, 323 So.2d 6, 8 (2 D.C.A. Fla., 1975). If follows, then, that

the several property interests of abutting landowners are subject to

constitutional protection. Clearly the attempt by a municipality to

usurp private property rights or property interests or to barter or

sell such property rights as conditions to or in exchange for the

exercise of its legislative power to vacate streets no longer

required for public use, does not constitute a municipal purpose and

is outside the scope of municipal home rule powers.

Prepared by:

Patricia R. GleasonAssistant Attorney General




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Name of Court: State:

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STATE PLANT BOARD v. WALTER A. SMITH AND WIFE (03/25/59)

SUPREME COURT OF FLORIDA.

Docket Number available at www.versuslaw.com

Citation Number available at www.versuslaw.com

March 25, 1959

STATE PLANT BOARD, A BODY CORPORATE UNDER THE LAWS OF THE STATE OF FLORIDA; W. G. COWPERTHWAITE, AS

PLANT COMMISSIONER; AND CHARLES POUCHER, INDIVIDUALLY, AND AS AGENT OF SAID BOARD, APPELLANTS,

v.

WALTER A. SMITH AND WIFE, MILDRED C. SMITH, APPELLEES.

Richard W. Ervin, Atty. Gen., Ralph E. Odum, Asst. Atty. Gen., Joseph O. Macbeth, Sebring, and M. H. Edwards, Bartow , for

appellants.

H. C. Crittenden, Winter Haven, G. B. Fishback, Orlando, Robert L. Staufer, Winter Haven, Harry Lee, Sebring, and Edward J. Hanlon,

Jr., Winter Garden, for appe llees .

Author: Roberts

ROBERTS, Just ice.

This is an interlocutory appea l from an order of the lower court holding unconstitutional all of 2 of Ch. 57-365, Laws of 1957 [

581.17(2), Fla.Stat.1957, F.S.A.], except the first paragraph thereof, and declining to d ismiss the plaintiff-appe llees ' suit for

injunctive relief aga inst the appellant, the State P lant Board, upon its motion.

The Act in question was adopted by the Legislature following the decision of this court in Cornea l v. State Plant Board, Fla.1957, 95

So.2d 1, 4, and with direct reference thereto in the Preamble to the Act. In the Corneal case this court held that the so-called "pull

and treat" program adopted by the State Plant Board ("the Board" hereafter) under general legislative authority for the

containment and eradication of a citrus disease known as spreading decline, caused by a burrowing nematode, could not be carried

out on a compulsory basis without compensating the grower for "at least, the loss of profits sustained by the owner w hose healthy

trees are destroyed under the compulsory program of 'pull and treat' * * *." The nature of the disease and the Board's program for

its control and eradication are discussed at some length in that opinion, and this discussion will not be repeated here. It suffices to

say that the burrowing nematodes infest and attack the lower root system of a citrus tree and, eventually, cause the tree to

"decline" and to become commercially unprofitable; and the Board's program calls for the destruction, according to a set formula, of

both infested and noninfested trees and the fumigation of the soil in the cleared area.

Section 1 of the 1957 Act, supra, provides that "[the] citrus disease known as spreading decline, caused by the burrowing

nematode is hereby declared to be a dangerous public nuisance"; and in the first paragraph of 2 of the Act the Board is directed

to carry out a compulsory program of conta inment and eradication of the disease, including the destruction of infested tree s and

fumigation of the so il, in accordance w ith the rules and regu lations of the Board. (These po rtions of the Act were not disturbed by

the Chancellor in the order here reviewed.) The remaining provisions of 2 - held unconstitutional by the Chancellor - provided for

the payment of "reasonable compensation not to exceed $1,000.00 per acre" for the destruction of uninfested trees, set out a

formula for the guidance of the Board or its agents in determining "just and fair compensation" to be paid to the grower for the

destruction of such trees, provided for a hearing before the Board as to the adequacy of such compensation, and for judicial review

of the Board's administrative determination in this respect. The Act specifically provided that no compensation should be paid for the

destruction of infested trees.

While not expressly so provided , it is the clear implication of the Act - and the Board has so interpreted it - that the compulsory

program of "pull and treat" may be carried out summarily in any citrus grove in which the burrowing nematodes are found by the

Board's agents, and that the grove ow ner is entitled to an administrative and judicial hearing on the sole question of the adequacy

of the compensation to be paid to him - and this only after the trees, infested and non-infested, have actually been destroyed.

In their complaint the plaintiffs-appellees a ttacked the s tatute on the grounds, inter alia, that it authorized the taking of their

property without due process of law and without just compensation, contrary to the Florida and federal constitutions [ 12,

4/24/2010 FindACase | STATE PLANT BOARD v

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Declaration of Rights, Fla.Const., F.S.A; 14th Amend., U.S.Const.], and that it also violated 29, Art. 16 of the Florida constitution,

F.S.A. prohibiting the taking of property for public use unless full compensation the refor "sha ll be first made to the owner, or first

secured to h im by deposit of money." The Board based its motion to dismiss principally on the decision of this court in Cornea l v.

State Plant Board, supra, 95 So.2d 1, urging that the statute "tracked" in every respect the mandate of this court in that case and

that the only question for judicial determination was the reasonableness of the compensation to be awarded plaintiffs for the

destruction of their non-infested trees.

In his order here reviewed the Chancellor held that, insofar as the statute authorized the summary destruction of infested trees, it

met the constitutional requirements of due process; but that "[the] attempt of the Legislature * * * to empower the State Plant

Board to destroy healthy trees before compensation shall be paid or secured to the owner, and the further attempt by said act to

place a ceiling of $1,000 per acre as compensation for healthy trees so destroyed and providing that said payment should be made

only after such des truction, violates the provisions o f Section 12 o f the Bill of Rights, Florida Constitution, and a lso Section 29, Article

16 of the Florida Constitution." He interpreted the opinion of this court in the Corneal case as requiring "full compensation" to be

made to the grove owner and opined that "any attempt by the Legislature to place a ceiling on compensation that is less than the

fair market value of the property destroyed or that attempts to destroy Plaintiffs' healthy trees before compensation shall be paid or

secured to Plaintiffs is clearly unconstitutional."

We will first dispose of the question of whether the destruction of citrus trees in this situation is an appropriation of private property

for public use within the intendment of 29 of Art. 16 of the Florida constitution. We think the conclusion in inescapable that it is

not.

There is a very clear distinction between an appropriation of private property to a public use in the exercise of the power of eminent

domain, and the regulation o f the use o f property - and its destruction, if necessary - in the exe rcise of the police power. "Under the

power of eminent domain the sovereign may make a compulsory purchase of the property of the citizen when such property is to be

appropriated to a public purpose or use, but such compulsory purchase, or taking as it is called, cannot be made even by the

sovereign 'without jus t compensation'". Moody v. Jacksonville, T. & K.W.R. Co., 1884, 20 Fla. 597, 606. Or, stated differently, in the

exercise of the power of eminent domain the sovereign "compels the dedication of the property, or some interest therein, to a

public use, or, if already dedicated to one public use, then to another." State ex rel. Lamar v. Jacksonville Terminal Co., 1900, 41 Fla.

377, 27 So. 225, 237. See also Adams v. Housing Authority of City of Daytona Beach, Fla.1952, 60 So.2d 663.

On the other hand, the police power is exercised by the sovereign to promote the health, morals and safety of the community,

Adams v. Housing Authority, supra; it rests "upon the fundamental principle that every one shall so use his own as not to wrong or

injure another." Mugler v. State of Kansas, 123 U.S. 623, 661, 667, 8 S. Ct. 273, 300, 31 L. Ed. 205, quoted in Pensacola & A.R. Co.

v. State, 1889, 25 Fla. 310, 5 So. 833, 3 L.R.A. 661. "'To destroy property because it is a public nuisance is not to appropriate it to

public use, but to p revent any use o f it by the owner, and to put an end to its existence, because it could not be used consistently

with the maxim, sic utere tuo ut alienum non laedas.'" Bowman v. Virginia State Entomologist, 1920, 128 Va. 351, 105 S.E. 141, 145,

12 A.L.R. 1121, quoting 1 Lewis on Eminent Domain, 3d ed., 247.

It is abundantly clear, then, that the Act in question was enacted in the exercise of the police power of the sovereign state and not

in the exercise of the pow er of eminent domain. Accordingly, it must be held that the able Chancellor erred in testing the va lidity of

the Act by the o rganic requirements contained in 29 o f Art. 16.

But the Chancellor also s tated in the order here reviewed that the Act "violates the provisions of Section 12 of the Bill of Rights,

Florida Constitution". While the language of the order appears to be referable only to a violation of 29 of Art. 16, the issue as to a

violation of 12 of the Declaration of Rights was made by the pleadings; this being so, this court's decision, on appeal, "must be

made, not on the basis of whether the trial court or chancellor traveled the proper route, used proper reasoning, or laid his

conclusion on proper grounds, but rather on w hether his conclusion is correct or incorrect." Chase v. Cowart, Fla.1958, 102 So.2d

147, 150.

So the fact that 29 of Art, 16 is not applicable to the Act does not dispose of the case. There still remains the question of the

impact of the provisions of 12 of the Declaration of Rights, Fla.Const. of 1885, prohibiting the taking of private property without

due process of law and without just compensation. And it might be noted that the provisions of our constitution guaranteeing these

sacred and bas ic rights ante-date by a lmost fifty years the organic limitations imposed by 29 of Art. 16. These provisions have

been incorporated in all of our state constitutions, from that of 1838 up to and including our present constitution of 1885. Section 29

of Art. 16, which was new in the constitution of 1885, merel

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30449312 Why the SS Attorney for the U S Flushes the Constitution s Down His Toilet

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