Florida’s Drug Law is Deemed Unconstitutional

Last week, a federal judge in Orlando declared Florida’s Drug Abuse Prevention and Control law unconstitutional.  The nine year old law was challenged on the grounds that it does not include an “intent” requirement, meaning that a defendant can be convicted of a drug offense, even if he or she unknowingly possesses, transports, or delivers a controlled substance.  The case involved a Florida man, Mackle Shelton, who was sentenced to 18 years in prison on a cocaine offense.

The jury that convicted Shelton in 2005 was instructed that to prove the crime of delivery, two elements must be shown: that Mackle Shelton delivered a certain substance; and that the substance was cocaine.  The jury was further instructed that the state did not have to prove that Shelton knew he was carrying or distributing a controlled substance.

According to U.S. District Judge Mary S. Scriven, the law’s fatal flaw is the lack of criminal intent requirement, which Florida’s legislature purposely removed from the books in 2002.  The Judge  noted that Florida is the only state in the nation to have expressly eliminated intent as an element of drug offenses.  Scriven concluded that Florida’s drug law is unconstitutional “on its face.”

Judge Scriven cited the example of a student who hides cocaine in a friend’s backpack without telling him.  The friend, having no idea it is there, would, under the subject drug law, be guilty of possession.  Scriven struck down Shelton’s drug conviction.

Judge Scriven’s ruling could potentially throw thousands of criminal cases into jeopardy.  The ruling’s implication is being praised as “monumental” and “courageous.”  However, its impact on past convictions and people now charged under Florida’s drug law won’t be clear until an appellate court weighs into the decision.  Florida is expected to appeal the ruling.

Florida’s Minimum Wage is on the Rise Once Again

Florida is one of ten states that has raised or will be raising its minimum wage rate for 2013. Effective January 1, 2013, for non-tipped employees, Florida’s minimum wage rate rose from $7.67 per hour to $7.79 per hour, up 12 cents. For tipped employees, the minimum wage rate rose to $4.77 per hour.

Other states included in the wage rate increase are Rhode Island, with the largest increase, Arizona, Colorado, Washington, and Ohio. The federal minimum wage rate was last increased in July 2009, when it was raised from $6.55 per hour to $7.25 per hour.

Florida is one of the few states where the minimum wage rate is recalculated yearly based on the federal Consumer Price Index. This means the minimum wage rate is linked to the cost of inflation and for Florida’s low wage workers this will be protection from those rising costs.

For Florida employers, it means a review of current pay policies to ensure that employees are being properly compensated under the law, new wage posters that must be hung, and a little bit more added to the bottom line.

Seminole Tribe Denied Sovereign Immunity in Construction Dispute

Encountering the Seminole Tribe of Florida as a litigation opponent presents a number of practical obstacles. Besides being well-funded (recent reports peg their annual gaming revenue in excess of $2 billion), the Seminole Tribe generally enjoys sovereign immunity from suit in the United States courts, unless, of course, they contract it away or it is waived. So not only can the Tribe outspend their opponents by huge margins, but when the going gets rough, they can claim that they are protected from suit by sovereign immunity. As a consequence, businesses and individuals are at an extreme disadvantage in litigating disputes with the Tribe. Not so for AECOM Technology Corp., a large multinational contractor which entered into a series of construction contracts with the Tribe to build water and wastewater treatment plants at three of the Tribe’s reservations in Florida. The contracts between AECOM and the Tribe provided for any disputes to be resolved by a Florida state court. When the Tribe refused to pay change orders totaling approximately $12 million, AECOM sued the Tribe for breach of contract in the Broward County Circuit Court. Despite having contracted away its sovereign immunity, the Tribe nonetheless claimed sovereign immunity from suit, arguing that the tribal representative who had signed the construction agreements lacked the authority to enter into them. Not exactly a winning argument. In a significant (but not entirely unexpected) victory for the plaintiff contractor, Judge Jeffrey Streitfeld rejected the Tribe’s sovereign immunity defense. The Tribe has appealed his ruling.

Although Florida circuit court decisions are typically unpublished, the Daily Business Review did a nice write up of the case (subscription required).

What is the lesson to be learned from this? When suing the Seminole Tribe, be prepared for a sovereign immunity defense, even in the face of a contractual waiver. Also be prepared to litigate every conceivable issue, as the Tribe will not hesitate to use its vast resources in the hopes of wearing down opponents financially. With AECOM’s annual revenues also measured in the billions, such a tactic obviously was not effective in this case. Finally, it would be naive for parties suing the Tribe to expect full disclosure and cooperation from the Tribe (at least not voluntarily). For example, in the AECOM case, the Tribe claimed that documents were “lost or missing,” including tribal ordinances, resolutions, contracts and email correspondence between tribal officials. This appeared to tip the scales in AECOM’s favor (although, quite frankly, the contractual waiver of sovereign immunity should have been more than enough), as Judge Streitfeld found after discovery that the facts warranted “the imposition of adverse evidentiary inferences as well as adverse presumptions against the Tribe.” Judge Streitfeld described this case as one of first impression, and we will be carefully following the appeal for any new developments in the case.