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Improper laws put in spotlight
The state Supreme Court exposes a common practice.
By JENNIFER LIBERTO, Times Staff Writer
Published September 20, 2007
TALLAHASSEE - Any Florida hospital that wants to open a new open-heart surgery center has to get permission from the state, showing there's enough demand for such a service - except for St. Vincent's Medical Center in Jacksonville.
Just about any racetrack can broadcast its races so that gamblers at other tracks can watch them and place bets - except for Gulfstream Park in Hallandale Beach.
What the track and the hospital have in common is that the Legislature singled out both in state law, giving St. Vincent's a handy bureaucratic short-cut, and denying Gulfstream Park valuable broadcasting rights.
Although the state Constitution has always barred the Legislature from targeting unique situations with broad general laws, the Legislature has a long history of crafting such deals anyway.
Yet in two cases last week, the Florida Supreme Court pulled back the veil on a surreptitious practice that runs counter to Florida's open government laws. In throwing out the two laws, the court toughened the standard for such laws and opened the door for future legal challenges.
"Whether a law has general application turns on a determination of whether its application to others is reasonable or practical not theoretical or speculative," the court wrote in the St. Vincent's ruling.
The court is sending a message to the Legislature, says former House Speaker Jon Mills, a law professor at University of Florida. General laws need to have broader impact; they can't just look like they might possibly apply to someone else in the future, he said.
The Constitution does give the Legislature a way of passing unique laws for special situations; they're called "special" laws.
But special laws have to meet more requirements than general laws, ranging from advanced notice and delegation meetings to voter referendums. And controversial special laws are harder to pass in the Legislature, because the extra notice and vetting requirements give opponents plenty of opportunities to torpedo such proposals.
"You have to show your cards much earlier, months before a session, to get a special law," said Mark Dunbar, a Tallahassee attorney for Gulfstream Park. "You can't do it in the dark of the night, which is the way most of these kinds of bills are written."
The only way to challenge these improper laws is through the court system, which takes time and deep pockets. That means the unconstitutional laws that get attention are the ones that involve businesses, like the hospital and the racetrack.
In both recent Supreme Court cases, the law concealed the true beneficiary, or target.
The tortuously worded law that gave St. Vincent's its exception applied to any hospital that opened a heart surgery program between 2003 and 2008 in an existing hospital that used a special kind of "closed-staff" personnel model. Only St. Vincent's Medical Center qualified.
In the horse racing case, the offending language was written by Gulfstream Park's competitors, denying the racetrack the ability to broadcast its races. The ban applied to tracks that own a permit to race thoroughbred horses and are within 25 miles of at least two other horse-racing permit holders. Gulfstream Park and one other track fit that description.
Not all laws that benefit single entities are bad. The courts have ruled that laws written to benefit specific areas like the Everglades or giant companies like the Scripps Research Institute are fine, because there's a greater public purpose, like clean water or economic growth.
Yet, the Legislature continues to craft narrow laws for very particular and limited interests.
This year, Gov. Charlie Crist vetoed a special-interest health care bill, which would have banned all hospitals from building free-standing emergency rooms ERs outside of hospitals until Jan. 1, 2009. However, the ban didn't apply to any hospital that met these obscure criteria: those that applied for free-standing emergency rooms on or before April 30, 2007, those that submitted "Stage 2 architectural plans" to the state by July 1, 2007 or were approved by July 15, 2007.
Only two hospitals fit that special exception, according to the Agency for Health Care Administration: Mount Sinai Medical Center in Miami Beach, a teaching nonprofit, and Morton Plant Hospital of Clearwater, a part of BayCare Health System.
But, a Tallahassee attorney for Morton Plant Hospital, Robert Wise, defended the "grandfather" clause, saying that both hospitals had already made progress toward securing free-standing emergency rooms and were simply trying to protect the substantial resources invested in those efforts.
Another example of a questionable law passed last year, giving a property tax exemption for nonprofit biblical theme parks. Only one exists: a popular amusement park called Holy Land Experience, which had been locked in a protracted property tax battle with the Orange County property appraiser's office. While the biblical theme park property tax exemption could apply to others similarly situated, it's not like biblical theme parks pop up every day, noted Sen. Gary Siplin, D-Orlando, on the Senate floor.
Siplin said that the bill really should have been a classified a special law and gone through the appropriate route for such a local issue; but he was overruled.