       Third District Court of Appeal
                                State of Florida

                            Opinion filed May 27, 2015.
          Not final until disposition of timely filed motion for rehearing.
                                ________________
                                    No. 3D14-405
                           Lower Tribunal No. 12-47448
                                ________________

                               Bruce Matheson,
                                     Appellant,

                                         vs.

Miami-Dade County, Florida, a political Subdivision of the State of
    Florida, and International Players Championship, Inc.,
                                     Appellees.


     An Appeal from the Circuit Court for Miami-Dade County, Marc
Schumacher, Judge.

      Carlton Fields Jorden Burt, Richard J. Ovelmen, Enrique D. Arana and Jason
P. Kairalla, for appellant.

      Stearns Weaver Miller Weissler Alhadeff & Sitterson, Eugene E. Stearns,
Joshua A. Munn and Joseph J. Onorati; R.A. Cuevas, Jr., Miami-Dade County
Attorney, Oren Rosenthal, Monica Rizo and Miguel A. Gonzalez, for appellees.

Before WELLS, EMAS and FERNANDEZ, JJ.

      FERNANDEZ, J.

      Bruce C. Matheson appeals the final judgment entered by the trial court in

favor of Miami-Dade County and International Players Championship, Inc. and
against Matheson on all counts. We affirm the final judgment on all counts because

the trial court’s finding that the “chief purpose” of the referendum was properly

provided to Miami-Dade County voters by the title and ballot summary is correct.

      In 1986, Miami-Dade County and International Players Championship, Inc.

(IPC) entered into an agreement for IPC to operate a men’s and women’s

professional tennis tournament from the Crandon Park Tennis Center in Crandon

Park, Key Biscayne, Florida. The IPC Agreement conducts what is today the

Miami Open. At the time, it was the Lipton International Players Championship

Tennis Tournament. The Agreement was amended in 1988 and 1990 and remains

in effect through 2023.

      In 1988, heirs of Malcom and Julia Matheson sued the County, alleging,

among other things, that the IPC Agreement violated a deed restriction that

required the County to use Crandon Park “for public park purposes only.” White v.

Metro. Dade Cnty, 563 So. 2d 117, 120 (Fla. 3d DCA 1990). In White, this Court

held that “construction of the tennis complex did not violate the ‘public park

purposes only’ provision of the deed restriction.” Id. at 123-24.1


1 This Court did hold, however, that the operation of the Lipton tournament
violated the deed restriction because it deprived the public “of the use and
enjoyment of Crandon Park, including the use and enjoyment of the tennis
facilities.” Id. at 124. This Court reasoned that because the public is deprived of
using the facilities for three to four weeks during the tournament period, the
operation of the Lipton tournament amounted “to the virtual ouster of the public
from the park” during the tournament. White, 563 So.2d at 125.

                                         2
      In 1991, the Matheson heirs filed a second lawsuit in Dade County v.

Matheson, 605 So. 2d 469 (Fla. 3d DCA 1992), trying to again prohibit the

construction of the tennis stadium at Crandon Park. Id. at 470. This Court agreed

with the County and held that the issue of whether or not a stadium may be built as

part of the tennis complex had already been decided by this Court in White. Thus,

the Matheson heirs were not permitted to re-litigate the County’s ability to build

the tennis stadium in the tennis complex. Id.

      Thereafter, in order to resolve the litigation, the County and the Matheson

heirs entered into a Settlement Agreement in 1993. This Settlement Agreement

ordered the creation of the Crandon Park Master Plan, “depicting all permitted uses

of various areas on the Crandon Park lands, including guidelines and standards for

the type, location, size, color, landscaping and other features of all structures,

improvements and recreational facilities to be located” on the Crandon Park lands.

The Master Plan is contained in the Amended Final Judgment in Malcom

Matheson, Jr. v. Metropolitan Dade County, No. 88-24491 (Fla. 11th Cir. Ct. Oct.

18, 2000). It was also recorded as a restrictive covenant running with the land, in

the public records of Miami-Dade County.

      This Master Plan, however, is not fixed but rather is amenable to

modification. The Settlement Agreement entered into by the Matheson heirs and




                                         3
the County provided for ways to amend the Crandon Park Master Plan. The

Settlement Agreement stated, in part:

             The Crandon Park Master Plan as implemented by the
             above mentioned Declaration of Restrictions and Final
             Judgment, may be amended following adoption only by
             the following procedure: (1) the County by affirmative
             vote of the County Board of Commissioners shall
             propose an amendment through action by resolution; (2)
             the County shall appoint two persons to a Committee on
             Amendment of the Crandon Park Master Plan, and the
             National Parks and Conversation Association (or a
             successor non-profit park preservation organization
             mutually agreed upon by the Parties) shall likewise
             appoint two members to such Committee on Amendment
             of the Crandon Park Master Plan….

      In addition, the Amended Final Judgment in case no. 88-24491, Malcom

Matheson, Jr. v. Metropolitan Dade County, reflects that the Master Plan can be

changed. The Declaration of Restrictive Covenants also states that amending the

Master Plan is possible.2

2 There is evidence in the record that the Master Plan has been previously
amended. In December 2013, the Director of the Miami-Dade Parks, Recreation
and Open Spaces Department at the time, Mr. Jack Kardys, stated in his affidavit
that the Master Plan has been amended several times over the years, including with
respect to the Crandon Park Tennis Center. The following is a list of the
amendments he listed in his affidavit: 1) On October 22, 2002, the BOCC
approved an amendment to the Master Plan to allow the temporary seating for the
Sony Open Tennis Tournament to be stored on the upper deck of the Tennis
Stadium at Crandon Park; This amendment was approved by the Amendment
Committee on November 12, 2002; 2) On October 22, 2002, the BOCC approved
an amendment to the Master Plan to allow the already existing lighted ball fields to
remain at Crandon Park permanently rather than being removed by January 1,
2005, as specified in the Master Plan. On May 4, 2005, the Amendment Committee
approved the amendment to allow the lighted ball fields to remain beyond 2005 but

                                         4
      Section 7.02, “Restrictions and Exceptions,” of Article 7 of the Miami-Dade

County Home Rule Charter – “PARKS, AQUATIC PRESERVES, AND

PRESERVATION LANDS,” states in pertinent part:

             In furtherance of this policy parks shall be used for
             public park purposes only, and subject to the limited
             exceptions set forth in this Article, there shall be no
             permanent structures or private commercial advertising
             erected in a public park or private commercial use of a
             public park or renewals, expansions, or extensions of
             existing leases, licenses, or concessions to private parties
             of public park property, unless each such structure, lease,
             license, renewal, expansion, extension, concession or use
             shall be approved by a majority vote of the voters in a
             county-wide referendum.

In addition, section 101.161(1), Florida Statutes (2012), states:


for only an additional eight years, or until 2013; 3) On October 22, 2002, the
BOCC approved an amendment to the Master Plan to allow existing boat dry
storage facility at the Crandon Park Marina for 130 boats to remain instead of
being reduced to 20 boats, as required by the Master Plan. On November 12, 2002,
the Amendment Committee approved the amendment; 4) On December 16, 2003,
the BOCC approved an amendment to the Master Plan to allow the construction of
a marina dive shop larger than that permitted by the Master Plan and to allow
additional uses for that marina dive shop beyond those permitted by the Master
Plan. On December 7, 2004, the Amendment Committee approved the
amendments to the Master Plan to allow expanded size and uses of the marina dive
shop; 5) On April 5, 2005, the BOCC approved an amendment to the Master Plan
to allow the expansion and modifications of utilities infrastructures at Crandon
Park to account for increased demand and technological upgrades. On February 15,
2007, the Amendment Committee approved the expansion and modifications of
utilities infrastructure sought by Bellsouth; 6) On March 15, 2011, the BOCC
approved an amendment to the Master Plan to eliminate restrictions on the exit and
traffic circulation at the Crandon Park Marina and to allow a permanent awning to
replace the fabric awning at the marina. The Amendment Committee approved this
amendment on May 4, 2011.

                                          5
            (1) Whenever a constitutional amendment or other public
                measure is submitted to the vote of the people, a
                ballot summary of such amendment or other public
                measure shall be printed in clear and unambiguous
                language on the ballot after the list of candidates,
                followed by the word “yes” and also by the word
                “no,” and shall be styled in such a manner that a
                “yes” vote will indicate approval of the proposal and
                a “no” vote will indicate rejection. The ballot
                summary of the amendment or other public measure
                and the ballot title to appear on the ballot shall be
                embodied in the constitutional revision commission
                proposal, constitutional convention proposal, taxation
                and budget reform commission proposal, or enabling
                resolution or ordinance. The ballot summary of the
                amendment or other public measure shall be an
                explanatory statement, not exceeding 75 words in
                length, of the chief purpose of the measure. In
                addition, for every amendment proposed by initiative,
                the ballot shall include, following the ballot
                summary, a separate financial impact statement
                concerning the measure prepared by the Financial
                Impact Estimating Conference in accordance with s.
                100.371(5). The ballot title shall consist of a caption,
                not exceeding 15 words in length, by which the
                measure is commonly referred to or spoken of. This
                subsection does not apply to constitutional
                amendments or revisions proposed by joint
                resolution.


Crandon Park is one of the listed parks in Article 7, which requires an affirmative

vote of two-thirds of the electorate of Miami-Dade County before any development

can occur there.

      Consequently, on August 23, 2012, the Miami-Dade County Board of

Commissioners adopted Resolution R-660-12, which scheduled for November 6,


                                         6
2012, a county-wide referendum election, asking voters if they approved

construction of new permanent facilities within the Crandon Park Tennis Center.

The referendum also asked voters if they approved modification of existing

contractual relationships between Miami-Dade County and IPC. Specifically, the

title and wording of the ballot were the following:

              Referendum Regarding Structures and Modification
                of Existing Agreements for the Tennis Center at
                                Crandon Park

             In accordance with Article 7 of the Home Rule Charter,
             do you approve as set forth in Resolution R-660-12:

             Erection of permanent structures and expansion of
             existing structures at Crandon Park Tennis Center for
             public park and tennis tournament use, which shall be
             funded solely by tennis center and tournament revenues
             and private funds; and

             Modification and extension of agreements with operator
             of Sony Open Tennis Tournament or its successors?


Resolution R-660-12 included two exhibits – Exhibit A, describing “The Proposed

Additional Permanent Structures,” and Exhibit B, describing the “Proposed Terms

for the Extension and Modification of the Existing Agreements for Use of the

Crandon Park Tennis Center for the Sony Open.” Exhibit A described and limited

the dimension and scope of the proposed permanent structure in great detail. In

addition, Exhibit B provided the material terms for extending and modifying the




                                          7
existing agreements between Miami-Dade County and IPC. Seventy-two percent

of the voters approved the referendum.

      Bruce C. Matheson then brought suit against Miami-Dade County to declare

the referendum unlawful. IPC moved to intervene, and the trial court allowed the

intervention.   In his complaint, Matheson alleged three counts: 1) that the

referendum “flew under false colors” and “hid the ball,” in violation of section

101.161(1) because it did not disclose that the expansion was prohibited by the

Settlement Agreement, the Master Plan and the Declaration of Restrictive

Covenants, and because it could not be implemented without approval of the

Amendment Committee and a vote of the Board of County Commissioners

(BOCC); 2) that the proposal was non-binding and thus violated Article 7 of the

Home Rule Charter; and 3) that the ballot title and summary failed to disclose facts

and thus violated the “Truth in Government” provision of the County Charter and

that Miami-Dade County Mayor Carlos Gimenez violated the same provision by

stating that the improvements would be paid for with private funds.

      Matheson eventually moved for summary judgment. Following the BOCC’s

approval of the agreements, the County and IPC also moved for summary

judgment. The trial court denied Matheson’s motion and granted summary

judgment against Matheson on all three counts of his complaint. On appeal,




                                         8
Matheson contends that the ballot language fails the requirements of section

101.161(1) by “hiding the ball” and “flying under false colors.”

   The standard of review of a trial court’s ruling on a summary judgment motion

is de novo. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130

(Fla. 2000). However, with regard to the ballot question at issue in this appeal, this

Court should invalidate it “only if the record shows that the [ballot language] is

clearly and conclusively defective.” Armstrong v. Harris, 773 So. 2d 7, 11 (Fla.

2000).

   Section 101.161(1) requires that the substance of the public measure be printed

in “clear and unambiguous” language on the ballot. According to City of Miami v.

Staats, 919 So. 2d 485, 488 (Fla. 3d DCA 2005), “[t]he purpose of this requirement

is to provide the voter with fair notice of the content of the proposed measure so

that he or she will not be misled as to its purpose and may intelligently cast his or

her vote.” See also Askew v. Firestone, 421 So. 2d 151, 155 (Fla. 1982) (“the

ballot must give the voter fair notice of the decision he must make”). Section

101.161(1) requires that the County and IPC explain to voters, in a summary not

exceeding seventy-five words, the “chief purpose of the measure.” Florida law

makes it clear that the ballot question does not have to “explain every detail or

ramification of the proposed amendment.” City of Riviera Beach v. Riviera Beach

Citizens Task Force, 87 So. 3d 18 (Fla. 4th DCA 2012) (quoting Fla. Educ. Ass’n



                                          9
v. Fla. Dep’t of State, 48 So. 3d 694, 700 (Fla. 2012)). It only must describe its

chief purpose. Id.; see also Let Miami Beach Decide v. City of Miami Beach, 120

So. 3d 1282 (Fla. 3d DCA 2013).

   Matheson contends on appeal that the ballot did not contain sufficient details.

However, there is no requirement that all the details of a proposal must be

explained to voters. Florida courts have previously held that section 101.161(1)

does not require excessive detail. See Miami Dolphins, Ltd. v. Metro. Dade Cnty,

394 So. 2d 981, 987 (Fla. 1981); Miami Heat Ltd. P’ship v. Leahy, 682 So. 2d 198,

203 (Fla. 3d DCA 1996).

   Matheson further alleges that the County and IPC "hid the ball” regarding the

proposal’s chief purpose. However, this is inaccurate. As previously discussed, the

Crandon Park Tennis Center improvements hinge on several approvals. As the

County contends, it would be impossible for it to present any question listing all

the required development approvals that were needed within the seventy-five word

limit required by section 101.161(1). This is why the ballot questions referenced

Resolution R-660-12, which contained all the details.

   The referendum advised voters that their approval was being sought, in

accordance with Article 7 of Miami-Dade County’s Home Rule Charter, to permit

IPC to build additional permanent structures at the Tennis Center and to allow

extension and modification of the agreement with IPC. The ballot question gave



                                        10
voters the material terms of the proposed additional permanent structures and the

material terms of the extension and modification of the IPC Agreement. As such,

the County and IPC are correct that the "chief purpose" of the Tennis Center

Referendum was communicated. This "chief purpose" was to find out if at least

two-thirds of the electorate in Miami-Dade County supported 1) the "erection of

permanent structures and the expansion of existing structures at the Crandon Park

Tennis Center for public park and tennis tournament use, which shall be funded

sole by tennis center and tournament revenues and private funds," and 2) the

“modification and extension of agreements with the operators of the Sony Open

Tennis Tournament or its successors." Because the chief purpose of the referendum

did not alter or change procedures for amending the Crandon Park Master Plan, the

referendum did not violate section 101.161(1). Even after the referendum passed

with two-thirds of the electorate voting in its favor, the process for obtaining the

remaining required approvals remained the same.

   Three approvals are needed in order to make changes to the Master Plan: 1)

voter approval via referendum; 2) the County Board of Commissioner’s approval;

and 3) the Committee on Amendment’s approval. Nowhere in the record does it

specify in which order these approvals need to be obtained, and that is because

there is no requirement that these approvals be obtained in any particular order. It

just so happens that, in this case, compliance with Article 7 was the first step taken



                                         11
by Miami-Dade County and IPC. This was not merely a “straw ballot,” as

Matheson suggests because the County and IPC were required under Florida law in

Article 7 of the Home Rule Charter to present this issue to the voters. Because

Crandon Park is one of the listed parks in Article 7, it requires an affirmative vote

of two-thirds of the electorate of Miami-Dade County before any development can

occur there. The only way to get this affirmative vote was to put it on a ballot for

the voters to vote.

   In support of his position, Matheson cites to Askew v. Firestone, 421 So. 2d 151

(Fla. 1982); however this case is inapplicable here. In Askew, the trial court

entered an order validating the caption and summary of a proposed constitutional

amendment scheduled to appear on the November 1982 general election ballot. Id.

at 152.    Previously, in the November 1976 general election, Florida voters

approved adding section 8, the “Sunshine Amendment,” to Article II of Florida’s

Constitution. Id. Section 8 declared a public office a public trust which should be

secure against abuse. As a result, section 8 required full, public financial disclosure

by elected officers and candidates for elected offices, provided for loss of pension

or retirement benefits if a public officer or employee is convicted of a felonious

breach of the public trust, and prohibited members of the legislature and statewide

elected officers from lobbying their former governmental bodies or agencies for

two years following vacation of office. Id. at 153.



                                          12
      On the next to last day of the 1982 regular session, the legislature passed Senate

Joint Resolution 1035. Id. The title read: “A joint resolution proposing an

amendment to Section 8 of Article II of the State Constitution relating to lobbying

by former legislators and statewide elected officers.” Id. The proposed amendment

would remove the two-year ban on lobbying by former legislators and elected

officers, retaining that ban only if an affected person failed to make financial

disclosure. The title and substance proposed was the following:

                  FINANCIAL DISCLOSURE REQUIRED BEFORE
                           LOBBYING BY FORMER
                               LEGISLATORS
                     AND STATEWIDE ELECTED OFFICERS

                   Prohibits former legislators and statewide elected
               officers from representing other persons or entities for
               compensation before any state government body for a
               period of 2 years following vacation of office, unless
               they file full and public disclosure of their financial
               interests.

Id.

      The appellants sued the Secretary of State to prevent inclusion of the proposed

title and substance on the November ballot. Appellants claimed the title and

substance were misleading under section 101.161 because, among other things,

“the instant summary discloses only the proposed addition of financial disclosure

as a condition to after-term lobbying and fails to reveal that the proposal would

repeal the existing, more stringent after-term prohibition on lobbying.” Askew, 421



                                            13
So. 2d at 154. The trial court found that the language was clear and unambiguous

of the chief purpose of the measure. The Florida Supreme Court disagreed.

   The Florida Supreme Court stated:              “The requirement for proposed

constitutional amendment ballots is the same as for all ballots, i.e., ‘that the voter

should not be misled and that he have an opportunity to know and be on notice as

to the proposition on which he is to cast his vote . . . . All that the Constitution

requires or that the law compels or ought to compel is that the voter have notice of

that which he must decide . . . . What the law requires is that the ballot be fair and

advise the voter sufficiently to enable him intelligently to cast his ballot.’ ” Askew,

421 So. 2d at 155 (quoting Hill v. Milander, 72 So. 2d 796, 798 (Fla. 1954)). The

Court further stated, “Simply put, the ballot must give the voter fair notice of the

decision he must make.” Id. The Court added:

             As it stands, subsection 8(e) precludes lobbying a former
             body or agency for two years after an affected person
             leaves office. The ballot summary neglects to advise the
             public that there is presently a complete two-year ban on
             lobbying before one's agency and, while it does require
             the filing of financial disclosure before anyone may
             appear before any agency for the two years after leaving
             office, the amendment's chief effect is to abolish the
             present two-year total prohibition. Although the summary
             indicates that the amendment is a restriction on one's
             lobbying activities, the amendment actually gives
             incumbent office holders, upon filing a financial
             disclosure statement, a right to immediately commence
             lobbying before their former agencies which is presently
             precluded. The problem, therefore, lies not with what the
             summary says, but, rather, with what it does not say.


                                          14
Id. at 155-56 (footnote omitted). The same cannot be said for Matheson’s case

now before this Court. The purpose in Askew was to impose an immediate change.

The referendum in that case was misleading because it appeared that it was

increasing the prohibition, but in actuality, it was lessening the existing

prohibition. In the case before us, the “chief purpose” of the referendum was to

find out if at least two-thirds of the voters supported what was being asked in the

referendum. However, there was no immediate change to anything after the results

of the referendum were tallied. The only result was that the public, by an

affirmative vote of more than two-thirds of the electorate, approved the proposed

development at Crandon Park and the modification of agreements relating thereto.

In addition, the ballot here did not try to accomplish the opposite of what the voters

were being asked, which is what happened in Askew. As such, Askew is

distinguishable and does not support Matheson’s position.

   Matheson also cites to Armstrong v. Harris, 773 So. 2d 7 (Fla. 2000), in support

of his position that the ballot language is misleading by “hiding the ball” and

“flying under false colors.” However, a review of Armstrong indicates that it, too,

is distinguishable and does not support his position.

   In Armstrong, a referendum was held wherein voters were asked to vote in

favor of amending Florida’s Constitution to make it easier to impose the death

penalty. Id. at 9-10. If the voters approved the amendment, the basis for imposing


                                         15
the death penalty would have changed immediately. Id. at 18. Just as in Askew,

the ballot question in Armstrong was misleading because it concealed what the

amendment did. The ballot question was trying to accomplish the opposite of what

the voters were being asked. The chief purpose of the referendum in Armstrong

was to change Florida’s Constitution. As previously discussed, that is not the case

before us, so Armstrong is also inapplicable.

   Matheson further cites to Wadhams v. Board of County Commissioners of

Sarasota County, 567 So. 2d 414 (Fla. 1990). In that case, the Board of County

Commissioners of Sarasota County proposed amendments to the county charter

concerning meetings of the county’s Charter Review Board. Id. at 415. The

proposed amendments were approved by a majority of the voters. Id. Petitioners

then filed a complaint challenging the amendment to the county charter,

contending that the referendum failed to comply with section 101.161(1) because it

did not provided a summary of the proposed changes. Id. The trial court did not

invalidate the results of the referendum, and the Second District Court of Appeal

affirmed, stating that “[t]he fact that a ballot may be confusing to some does not

mandate a court to invalidate the results of an otherwise properly conducted

election.” Id. (citations omitted).

      The Florida Supreme Court disagreed and stated that the ballot in Wadhams

had the same problem as the ballot in Askew. Wadhams, 567 So. 2d at 416. The



                                        16
Court stated that the “chief purpose” of the referendum was not communicated to

the voters:

              By containing the entire section as it would actually
              appear subsequent to amendment, rather than a summary
              of the amendment to the section, the ballot arguably
              informed the voters that the Charter Review Board would
              only be permitted to meet once every four years. By
              failing to contain an explanatory statement of the
              amendment, however, the ballot failed to inform the
              public that there was presently no restriction on meetings
              and that the chief purpose of the amendment was to
              curtail the Charter Review Board's right to meet. Similar
              to the ballot summary at issue in Askew, the present
              ballot “is deceptive, because although it contains an
              absolutely true statement, it omits to state a material fact
              necessary in order to make the statement made not
              misleading.” Askew, 421 So.2d at 158 (Ehrlich, J.,
              concurring). The only way a voter would know what
              changes were being effected by an affirmative vote on
              the ballot would be to know what section 2.11 of the
              county charter provided prior to amendment. As then
              Judge Grimes noted in his dissent below: “[T]here was
              nothing on the ballot to inform the voter of the change to
              be accomplished by the amendment, which is the very
              reason why section 101.161(1) requires an explanatory
              statement.” 501 So.2d at 124 (Grimes, J., dissenting). See
              also Kobrin v. Leahy, 528 So.2d 392 (Fla. 3d
              DCA)(placement on ballot of proposition to provide that
              the board of county commissioners shall be the
              governing board of the fire and rescue service district,
              but making no mention of the elimination of the existing
              governing body of the Fire and Rescue District, was
              misleading to voters and violated section 101.161(1),
              especially in light of simultaneously conducted election
              of persons to the existing governing board), review
              denied, 523 So. 2d 577 (Fla. 1988).

Id. at 416-17 (emphasis in original).


                                          17
      Again, the ballot question was misleading because it failed to include the

explanatory statement required by section 101.161(1), and thus failed to inform the

voters of the “chief purpose” of the measure. It told the voters that the Charter

Review Board would only be permitted to meet once every four years, but failed to

tell them that there was presently no restriction on meetings and that the chief

purpose of the amendment was to curtail the Charter Review Board’s right to meet.

In the facts of Matheson’s appeal, the referendum (which was just a few words shy

of the seventy-five word maximum requirement) included a reference to R-660-12,

which had all the details of the existing structures expansion, as well as the details

of the modification and extension of the existing agreements.

   Similarly, Matheson’s reliance on this Court’s opinion in Miami-Dade County

v. Village of Pinecrest, 994 So. 2d 456 (Fla. 3d DCA 2008), is misplaced, as this

case does not support his position. In Village of Pinecrest, Miami-Dade County

presented a ballot question addressing the system by which fire and rescue services

are provided to the citizens of Miami-Dade County. The ballot title and summary

were the following:

        COUNTY CHARTER AMENDMENT CREATING UNIFORM
     COUNTYWIDE FIRE AND RESCUE SERVICE AND PRESERVING
                   EXISTING CITY SERVICE

             SHALL THE CHARTER BE AMENDED TO
             REQUIRE THAT THE BOARD OF COUNTY
             COMMISSIONERS  PROVIDE  A   UNIFORM,
             COUNTYWIDE SYSTEM OF FIRE PROTECTION


                                         18
             AND     RESCUE   SERVICES     FOR     ALL
             INCORPORATED AND UNINCORPORATED AREAS
             OF THE COUNTY WITH THE EXCEPTION OF THE
             CITIES OF MIAMI, MIAMI BEACH, HIALEAH,
             CORAL GABLES, AND KEY BISCAYNE WHICH
             MAY PROVIDE FOR FIRE AND RESCUE
             PROTECTION SERVICES WITHIN THOSE CITIES?

Id. at 457-58 (emphasis in original). In Village of Pinecrest, the appellees claimed

that the ballot title was misleading because it implied there previously did not exist

a “uniform countywide fire and rescue service.” Id. at 458. The appellees further

argued the ballot summary was misleading because it failed to advise voters that it

curtailed their right to establish their own system. Id. The provision of the Charter

which the appellees claimed the County fatally failed to mention in the ballot

summary was the following:

                      SECTION 6.02 MUNICIPAL POWERS

             Each municipality shall have the authority to exercise all
             powers relating to its local affairs not inconsistent with
             this charter. Each municipality may provide for higher
             standards of zoning, service and regulation than those
             provided by the Board of County Commissioners in order
             that its individual character and standards may be
             preserved for citizens.

Miami-Dade County, Fla., Charter art. 6, § 6.02.

      This Court agreed with the Village of Pinecrest, stating:

             This proposal does both. It “flies under false colors” of a
             title that promises to be “Creating [a] Uniform
             Countywide Fire and Rescue Service” when one has
             existed in Miami-Dade County for nearly thirty years,


                                         19
             and “hides the ball” by purporting to create new rights
             for the citizens while actually curtailing or eliminating
             existing rights.

Id. This is very different from the facts in the case before us. The referendum in the

case before us did not fail to mention anything. The referendum here did not allege

that it created any new rights for citizens while actually doing the opposite and

eliminating existing rights. The referendum at issue before us simply provided

voters with detailed information regarding the Crandon Park expansion, consistent

with Florida law and Article 7 of Miami-Dade County’s Home Rule Charter.

      In sum, the referendum did not “hide the ball” or “fly under false colors.”

Section 101.161, of the Florida Statutes, required that IPC and Miami-Dade

County tell the voters, in clear and unambiguous language, the chief purpose of the

referendum. And the referendum did just that. The referendum language was clear

and unambiguous and not misleading. It informed the voters of its chief purpose,

which was to find out whether at least two-thirds of the voters supported 1) the

“[e]rection of permanent structures and the expansion of existing structures at

Crandon Park Tennis Center for public park and tennis tournament use, which

[would] be funded solely by tennis center and tournament revenues and private

funds; and 2) the [m]odification and extension of agreements with the operator of

the Sony Open Tennis Tournament or its successors”. The referendum did not

change in any way the procedure for amending the Crandon Park Master Plan. The



                                         20
referendum language complied with Article 7 of Miami-Dade County’s Home

Rule Charter and section 101.161(1), Florida Statutes (2012). Accordingly, we

affirm the trial court’s Final Judgment.

      Affirmed.

      EMAS, J., concurs.




                                           21
                            Matheson v. Miami-Dade County, Florida, 3D14-405


EMAS, J., concurring.

      I concur in affirming the final judgment below, and write to further explain

my reasons.

      Although our standard of review is de novo, such review is tempered by the

“strong public policy against courts interfering in the democratic processes of

elections.” Let Miami Beach Decide v. City of Miami Beach, 120 So. 3d 1282

(Fla. 3d DCA 2013) (quoting Fla. League of Cities v. Smith, 607 So. 2d 397, 400

(Fla. 1992)). Therefore, “[a] court may declare a proposed . . . amendment invalid

only if the record shows that the proposal is clearly and conclusively defective.”

O’Connell v. Martin Cnty., 84 So. 3d 463, 465 (Fla. 4th DCA 2012) (quoting

Armstrong v. Harris, 773 So. 2d 7, 11 (Fla. 2000)).

      I agree that the language of the ballot summary informed the voters of the

“chief purpose” of the referendum without “flying under false colors” or “hiding

the ball,” thus satisfying section 101.161, which requires that “the voter have

notice of that which he must decide. . . . What the law requires is that the ballot be

fair and advise the voter sufficiently to enable him intelligently to cast his ballot.”

Armstrong, 773 So. 2d at 13 (quoting Askew, 421 So. 2d 151, 154-55 (Fla. 1982)).




                                          22
       Determining the “chief purpose” of the referendum requires us to look to the

reason why the ballot question was placed before the voters in the first place.

Contrary to Matheson’s position, the referendum was not intended to (and in fact

could not) modify, alter or amend the previously-created Crandon Park Master

Plan, the Declaration of Restrictive Covenants, the Final Judgment or the

Settlement Agreement. Rather, the referendum was intended to comply with the

requirements of Article 7 of the Charter of Miami-Dade County. Article 7.01 sets

forth a policy that states in pertinent part:

              Parks. . . and lands acquired by the Count for
              preservation shall be held in trust for the education,
              pleasure, and recreation of the public and they shall be
              used and maintained in a manner which will leave them
              unimpaired for the enjoyment of future generations as a
              part of the public’s irreplaceable heritage.

       Article 7.02 provides restrictions for the use of public parks and requires a

majority vote of the electorate before certain commercial uses may be made. It

provides the following general restriction:

              In furtherance of this policy parks shall be used for
              public park purposes only, and subject to the limited
              exceptions set forth in this Article, there shall be no
              permanent structures or private commercial advertising
              erected in a public park or private commercial use of a
              public park or renewals, expansions, or extension of
              existing leases, licenses, or concessions to private parties
              of public park property, unless each such structure, lease,
              license, renewal, expansion, extension, concession or use
              shall be approved by a majority vote of the voters in a
              County-wide referendum.


                                            23
         In addition, Article 7.02 creates a special class of public parks (which

includes Crandon Park), and imposes the heightened requirement of a two-thirds

vote of the electorate before certain commercial uses may be made for this class of

parks:


               To ensure aquatic preserves, lands acquired by the
               County for preservation, and public parks or parts thereof
               which are nature preserves, beaches, natural forest areas,
               historic or archeological areas, or otherwise possess
               unique natural values in their present state, such as. . .
               Crandon Park, . . . and all other natural or historical
               resource based parks do not lose their natural or historical
               values, any structure, lease, license, renewal, extension,
               concession or use in any of this class of public parks or in
               aquatic preserves and preservation lands must be
               approved by an affirmative vote of two-thirds of the
               voters in a County-wide referendum. (Emphasis added.)


         Given this backdrop, it is clear that the “chief purpose” of the referendum

was to comply with the Charter’s requirement that two-thirds of Miami-Dade

voters approve any proposed expansion of the facilities in Crandon Park.        The

chief purpose of the referendum was decidedly not to determine whether Miami-

Dade voters wished to amend the Crandon Park Master Plan, the Declaration of

Restrictive Covenants, the Final Judgment, or the Settlement Agreement. In point

of fact, no vote of Miami-Dade citizens would or could have effectuated any such

amendments; under the express terms of the Settlement Agreement, the only



                                           24
manner in which the Crandon Park Master Plan could be amended was by a

majority vote of the Miami-Dade County Board of Commissioners, together with a

majority vote of the Committee on Amendment of the Crandon Park Master Plan.

This amendment process did not require any vote of the electorate. Therefore,

under the circumstances presented, the “chief purpose” of the vote was simply a

mandated referendum to determine whether two-thirds of the Miami-Dade County

electorate wished to permit the proposed expansion of the facilities.

      Matheson’s reliance on Askew and Armstrong is misplaced. Each of those

cases involved a vote which, in and of itself, effectuated a change to the existing

provisions of the state constitution. In Armstrong, the ballot summary misled the

voters because it created the impression that the proposed amendatory language

would provide greater constitutional protection when in reality it accomplished the

opposite:

             [A] citizen could well have voted in favor of the
             proposed amendment thinking that he or she was
             protecting state constitutional rights when in fact the
             citizen was doing the exact opposite- i.e., he or she was
             voting to nullify those rights.
      Armstrong, 773 So. 2d at 18.

      Similarly, Askew involved a proposed amendment which purported to

strengthen Florida’s constitutional restrictions on lobbying activities. However,




                                         25
the actual effect of the proposed amendment was to weaken the existing

constitutional provision:

             As it stands, [the existing constitutional provision]
             precludes lobbying a former body or agency for two
             years after an affected person leaves office. The ballot
             summary neglects to advise the public that there is
             presently a complete two-year ban on lobbying before
             one's agency and, while it does require the filing of
             financial disclosure before anyone may appear before any
             agency for the two years after leaving office, the
             amendment's chief effect is to abolish the present two-
             year total prohibition. Although the summary indicates
             that the amendment is a restriction on one's lobbying
             activities, the amendment actually gives incumbent office
             holders, upon filing a financial disclosure statement, a
             right to immediately commence lobbying before their
             former agencies which is presently precluded. The
             problem, therefore, lies not with what the summary says,
             but, rather, with what it does not say.
Askew, 421 So. 2d at 155-56 (footnote omitted).

      The distinction between Askew and the instant case is underscored by the

following observation in Askew:

             Had [the ballot proposal] not been an amendment to an
             existing provision, if it had been a totally new provision,
             its ballot summary and title would probably have been
             permissible. The change to subsection 8(e) [of Article II
             of the Constitution] is as stated, but the stated change is
             only incidental to the true purpose and meaning of
             section 8 in its entirety. Public financial disclosure is
             needed to assure the accountability of state officers and is
             the heart of section 8. But, in subsection (e), section 8
             also expresses another vital concern-the ban on lobbying.
             The ballot summary fails to give fair notice of an
             exception to a present prohibition.


                                         26
Id. at 156.
      Matheson attempts to portray the referendum in the instant case as an

amendment to the Crandon Park Master Plan. But it is not. Unlike the referenda

in Armstrong and Askew, passage of this referendum did not amend, modify or

alter anything. It is the legal equivalent of “a totally new provision” as described

in Askew. And unlike the summaries in Armstrong and Askew, no material

ramifications were left undisclosed in the instant case, nor did the ballot language

fail to apprise the voters of the “full sweep” of the proposal. Rather, it adequately

informed the voters of the sweep, effect, and ramification of the referendum. The

electorate’s approval of the referendum did not impact the Crandon Park Master

Plan, and did not, on its own, permit the County or any private entity to erect

permanent structures, expand existing structures, or extend or modify agreements

with the operator of the tennis tournament. It was certainly not necessary to advise

voters that no such expansion could take place without an amendment to the

Crandon Park Master Plan. The fact that the terms of the Crandon Plan Master Plan

currently prohibited such expansion was not material, as the voters were not asked

to amend the Crandon Park Master Plan.

      In the instant case, because the referendum did not effectuate any change

beyond complying with the Charter-mandated procedure for approving “any

structure, lease, license, renewal, extension, concession or use” in the class of



                                         27
public parks that included Crandon Park, it satisfied the requirement that it place

“the voter on notice of that which he must decide” and “advise the voter

sufficiently to enable him intelligently to cast his ballot,” Armstrong, 773 So. 2d at

13.

       I therefore concur in affirming the judgment of the trial court.

      Bruce Matheson v. Miami-Dade County, Florida, a Political Subdivision of the
                    State of Florida, and International Players Championship, Inc.,
                                                                        3D14-405

WELLS, Judge (dissenting).

       I respectfully dissent. Because I find that the ballot summary misled the

voters and failed to disclose material information necessary for the public to make

an informed decision under section 101.161 of the Florida Statutes (2012), I would

reverse.

       1. Underlying Facts

       Twice before, this court has considered a dispute between members of the

Matheson Family and the County over the erection of structures at the Crandon

Park Tennis Center and IPC’s operation of a tennis tournament at that center. See

Dade Cnty. v. Matheson, 605 So. 2d 469 (Fla. 3d DCA 1992); White v. Metro.

Dade Cnty., 563 So. 2d 117 (Fla. 3d DCA 1990). The underlying facts leading to

the instant dispute between Bruce Matheson, the County and IPC are largely set

forth in our initial decision in White:



                                          28
       In 1940, several members of the Matheson family deeded three
tracts of land located on the northern portion of Key Biscayne to Dade
County. This land, consisting of 680 acres, came to be known as
Crandon Park. In the recorded deeds, the grantors expressly provided:

      This conveyance is made upon the express condition that
      the lands hereby conveyed shall be perpetually used and
      maintained for public park purposes only; and in case the
      use of said land for park purposes shall be abandoned,
      then and in that event the said [grantor], his heirs,
      grantees or assigns, shall be entitled upon their request to
      have the said lands reconveyed to them.

      ....

        In 1986, the Dade County Board of County Commissioners
passed Resolution R-891-86, which authorized the execution of an
agreement with Arvida International Championships, Inc., (Arvida),
and the International Players Championship, Inc., (IPC), to construct a
permanent tennis complex. The construction of the court facilities and
infrastructure began in the summer of 1986, and terminated in 1987.
Initially, the tennis complex consisted of fifteen tennis courts, service
roads, utilities, and landscaping, all located on 28 acres.

       The agreement provided that for two weeks each year, subject
to a renewal provision, the tennis complex would become the site of
the Lipton International Players Championship Tennis Tournament
(Lipton tournament). This renowned tournament is only open to world
class players who compete for two weeks.

      In February 1987, the first Lipton tournament was held before
approximately 213,000 people. The county manager considered the
Lipton tournament to be such a tremendous success that he
recommended, and the County Commission approved in Resolution
R-827-87, the construction of “Phase II,” a permanent
clubhouse/fitness facility. This 15,000-to-33,000-square-foot facility
was to house locker rooms, training and exercise equipment, meeting
rooms, food and beverage concessions, and a sporting goods store. As
a result of “community input,” the clubhouse was ultimately reduced



                                   29
      to 9,800 square feet. This “community input” consisted of informal
      meetings with residents and one public hearing.

            During the four Lipton tournaments held thus far on Key
      Biscayne, temporary seating has been provided. Appellants contend
      that a 12,000-seat permanent stadium is part of the future
      development plans.

            ....

            In 1987 and again in 1988, Dade County attempted to obtain
      the consent of one of the heirs, Hardy Matheson, for the operation of
      the Lipton tournament. Hardy Matheson refused to give his consent,
      and informed the County that the tennis complex and the operation of
      the Lipton tournament was contrary to the deed restriction.

White, 563 So. 2d at 121-22.

      In White, we held that while “the construction of the tennis park complex

did not violate the ‘public park purposes only’ provision of the deed restriction,”

operation of the tournament did violate the restriction because it “deprive[d] the

public of the use and enjoyment of Crandon Park, including the use and enjoyment

of the tennis facilities.” Id. at 123-24. The basis for the violation was that

operation of the tournament, as it was at that time, amounted to the “virtual ouster

of the public from the park for periods of time during the two week tournament.”

Id. at 125. As we explained:

      Our ruling does not prevent Dade County from using the tennis
      complex for tennis tournaments. It merely seeks to insure that in
      holding such tournaments, public access to the rest of Crandon Park is
      not infringed; and use of the tennis complex is not denied to the public
      for unreasonable periods of time.



                                        30
Id. at 126.

      In 1991, Matheson heirs filed a second lawsuit specifically directed at the

construction of a permanent 7,500-seat stadium at the tennis complex, claiming

that the stadium construction violated the deed restriction on the subject property.

The trial court agreed with the Mathesons and entered a permanent injunction

prohibiting the construction. We reversed, finding that our resolution of the first

lawsuit in White had already addressed whether construction of a stadium as part

of the proposed tennis complex violated the terms of the Matheson deed restriction

and concluded that it did not. See Matheson, 605 So. 2d at 470. We also noted

that although the second lawsuit did not raise any arguments that the tennis

tournament as it was then being run still amounted to a “virtual ouster” of the

public from Crandon Park in violation of the deed restriction, anyone with proper

standing to raise that issue “would have the right to go back before the original trial

court, [which] has jurisdiction over this matter, to seek the appropriate relief or

enforcement, be it of a[n] equitable nature or otherwise.” Id. at 471. Encouraged

by this statement, the Mathesons filed an Emergency Motion for Supplemental and

Additional Relief and to Amend Final Judgment in the first (the White)

proceeding.

      On January 14, 1993, while this motion was pending, the Matheson Family

and the County entered into a Settlement Agreement to “amicably resolve once and



                                          31
for all time, the appropriate park uses to which the County may put Tracts 1, 2 and

3 of the Crandon Park lands and the locations of such uses within the Crandon

Parks lands.” To this end, the Settlement Agreement called for the creation of a

Crandon Park Master Plan, drafted by experts, subjected to public scrutiny, and

implemented by a “Declaration of Restrictions” recorded in the public records to

run with the land:

             (a) Creation. The Parties agree that a Crandon Park Master
      Plan shall be prepared by the professional park planning Olmsted
      Firm . . . depicting all permitted uses of various areas on the Crandon
      Park lands . . . . It is the Parties’ intention that the Crandon Park
      Master Plan created pursuant to this Settlement Agreement, and
      implemented through the Declaration of Restrictions hereinafter
      described, shall determine for all time (subject to amendment as
      herein after provided) the uses of, and improvements upon, and
      their location within, the Crandon Park lands.

            (b) Consultation With The Parties; Draft Plan; Final Plan;
      Amendment. In creating the Crandon Park Master Plan, the Olmsted
      Firm shall consult with the County and its designated Park
      professionals, and with the Matheson Family, and their designated
      representatives. In addition the Olmsted Firm shall consult with the
      County’s professional tennis tournament operators concerning the use
      of the “Tennis Center” at Crandon Park . . . for the operation of the
      International Players Championship . . . . The Olmsted Firm shall
      submit a draft of the Crandon Park Master Plan . . . to the Parties, and
      the County shall hold a public hearing [there]on . . . .

(Emphasis added).

      This agreement, among other things, expressly provided that the Crandon

Park Master Plan was to “be consistent with all of the terms of this Settlement




                                        32
Agreement,” and that no new or additional permanent structures would be erected

at the Tennis Center:

      No New Permanent Structures on the Tennis Center . . . . Except
      as provided above with respect to the [then contemplated] permanent
      tennis stadium, the Tennis Center shall include only such permanent
      structures as are presently located on the Tennis Center. . . .

      The Settlement Agreement also provided that the Master Plan, as

implemented by a Declaration of Restrictions that was to be recorded in the public

records of Miami-Dade County and made part of the final judgment in White,

would be subject to change or amendment only upon approval by both the County

Commission and a Committee on Amendment of the Crandon Park Master Plan:

      The Crandon Park Master Plan as implemented by the above
      mentioned Declaration of Restrictions and Final Judgment, may be
      amended following adoption only by the following procedure: (1) the
      County by affirmative vote of the County Board of Commissioners
      shall propose an amendment through action by resolution; (2) the
      County shall appoint two persons to a Committee on Amendment of
      the Crandon Park Master Plan, and the National Parks and
      Conservation Association (or a successor non-profit park preservation
      organization mutually agreed upon by the Parties) shall likewise
      appoint two members to such Committee on Amendment of the
      Crandon Park Master Plan. The Committee shall consider the
      proposed amendment to the proposed Crandon Park Master Plan and
      an affirmative vote of no less than three members of such Committee
      shall be required to amend the Crandon Park Master Plan, which
      amendment shall be incorporated by the County in an amendment to
      the Declaration of Restrictions implementing the Crandon Park
      Master Plan. Should a proposed amendment to the Crandon Park
      Master Plan fail to receive an affirmative vote of at least three
      members of such Committee on the Amendment of the Crandon Park
      Master Plan, the proposed amendment shall fail and the Crandon Park
      Master Plan shall be enforced as previously in force.


                                       33
      As contemplated by the Settlement Agreement, a Crandon Park Master Plan

was drafted and approved by the Matheson Family and the County. That 102-page

plan and its 24 appendices delineate detailed objectives for all areas comprising

Crandon Park.3 Among other things, this plan expressly precludes construction of

virtually any additional permanent structures within Crandon Park:

             Except as expressly provided in this Master Plan, there shall be
      no new structures, improvements, features, or major modifications to
      existing structures or improvements (defined as renovations or repairs
      constituting more than 50% of the value of the existing structure or
      improvement), whether temporary or permanent, located or
      constructed on the Crandon Park Lands, provided that resurfacing of
      any tennis court in excess of 50% of the value of the court shall be
      permitted.

      With regard to the Tennis Center, described in the Master Plan as

comprising a tennis stadium, a clubhouse, and 27 tennis courts, no new permanent

structures or expansion whatsoever was authorized:

             No New Permanent Structures on the Tennis Center . . .
      Except as provided . . . with respect to the permanent tennis stadium,
      the Tennis Center shall include only such permanent structures as are
      presently located on the Tennis Center and depicted in the Master
      Plan Site Plan.

3 The areas specifically addressed were Crandon Boulevard, the Crandon Park
Marina, the ibis preserve, the Crandon Park Golf Course, the Crandon Park Tennis
Center, the West Point Preserve, the Fire Station, the Calusa Mangrove Trail and
Archaeological sites, the Crandon Park Service Area, the Crandon Park Zoo and
Gardens, the Crandon Park Cabanas, the Parking and Beach Drive, the Crandon
Park Beach, the Crandon Park Visitors and Nature Center, and the Bear Cut
Preserve.


                                        34
      Significantly, the Master Plan provides that any amendments either to it or to

the contemplated Declaration of Restrictive Covenants memorializing it “shall be

adopted sparingly, in conformity with [the Master Plan’s] Statement of Intent and

consistent with the provisions of the Settlement Agreement reached on January 14,

1993 by and between the Matheson family and Dade County.”4

      On August 25, 2000, as required by the Settlement Agreement between the

Matheson Family and the County, a Declaration of Restrictive Covenants was

recorded in the public records of Miami-Dade County.             That Declaration

confirmed that consistent with the Settlement Agreement and the Crandon Park

Master Plan: (1) it was the intention of the County and the Matheson Family for all

time to restrict the use of and improvements to Crandon Park by limiting those

uses and improvements to those authorized by the Crandon Park Master Plan; (2)

that under the Master Plan no structures or improvements other than those then

contemplated or existing and described in the Master Plan were to be made at

Crandon Park unless authorized by the Declaration which incorporated the terms of

the Master Plan and Settlement Agreement; (3) that the Declaration with its

incorporated Settlement Agreement and Master Plan were to run with the land; and


4  The Declaration of Restrictive Covenants similarly provides that any
modification or amendment of the Declaration itself must be made in accordance
with the provisions of the Master Plan, and that any modification or amendment of
the Master Plan may be made “only in accordance with the provisions contained in
the Settlement Agreement dated January 14, 1993 . . . .”

                                        35
(4) the Declaration was not subject to modification except as provided by the

Settlement Agreement and Master Plan—that is, with the approval of both the

County Commission and the Committee on Amendment of the Crandon Park

Master Plan:

            WHEREAS, in order to fulfill the requirements of the
      Settlement Agreement [between the County and the Matheson
      Family] and forever to resolve the disputes and litigation between
      [them], the County [as owner of Crandon Park] has agreed to restrict
      the uses of and the improvements upon Crandon Park as provided in
      this Declaration, subject to modification or amendment only in
      accordance with the provisions contained herein;

               ....

             1.    CRANDON PARK MASTER PLAN.                    Upon the
      recordation of this Declaration, the [Crandon Park] Property shall be
      restricted to those uses and improvements set forth in the Crandon
      Park Master Plan attached hereto . . . subject to modification or
      amendment only in accordance with the provisions contained therein.
      It is the intention of the County and the Matheson family that the
      Crandon Park Master Plan, which has been created pursuant to the
      Settlement Agreement and implemented through this Declaration,
      shall determine for all time (subject to modification or amendment
      only as herein provided) the uses of, and improvements upon, and
      their location within, the [Crandon Park] Property. No structure,
      improvement or other facility, whether permanent or temporary, shall
      be located or constructed upon the [Crandon Park] Property unless
      provided by the terms of this Declaration.

             2. BINDING EFFECT OF DECLARATION.                              This
      Declaration shall constitute a covenant running with the land, and
      shall be binding upon the County, upon it successors and assigns, and
      upon all parties having any right, title or interest in [the Crandon Park]
      Property. This Declaration shall be recorded in the public records of
      Miami-Dade County, Florida, and shall remain in full force and effect



                                         36
      until such time as the Declaration is modified or amended in
      accordance with the terms contained herein.

         ....

             4.     MODIFICATION AND AMENDMENT.                      This
      Declaration may be modified or amended only in accordance with the
      provisions contained in the Settlement Agreement dated January 14,
      1993, which appears as Appendix F to the Crandon Park Master Plan .
      . . and upon compliance with the terms of such Settlement Agreement
      as to amendment of the Crandon Park Master Plan, by a written
      instrument duly recorded in the public records of Miami-Dade
      County.

      Finally, on October 18, 2000, pursuant to the terms of the Settlement

Agreement, the trial court in White entered an Amended Final Judgment approving

and incorporating the Crandon Park Master Plan and ordering the parties to comply

with the provisions of that plan and the Declaration of Restrictive Covenants.

      2. The Instant Matter

      On August 23, 2012, the County’s Board of County Commissioners passed

Resolution R-660-12, authorizing the following question to be placed on the

November 2012 ballot:

       Referendum Regarding Structures and Modifications of Existing
             Agreements for the Tennis Center at Crandon Park

      In accordance with Article 7 of the Home Rule Charter, do you
      approve as set forth in Resolution R-660-12:

    Erection of permanent structures and expansion of existing structures
     at Crandon Park Tennis Center for public park and tennis tournament
     use, which shall be funded solely by tennis center and tournament
     revenues and private funds; and

                                        37
    Modification and extension of agreements with operator of Sony
     Open Tennis Tournament or its successors.

      Attached to the resolution was a detailed proposal for additional permanent

structures to be constructed at the tennis complex, including: numerous new

permanent additions to the current stadium; three new permanent courts with

spectator grandstands; a lake cottage; and open pavilions. Also attached to the

resolution were the proposed terms for the extension and modification of existing

agreements between the County and IPC, pursuant to which IPC operates an

annual tennis tournament at the Tennis Center. Therein, IPC proposed a new

operating agreement to replace the existing agreement, to fund the development of

the additional permanent structures at the tennis complex, and to be allowed to

lease office space within the current stadium for year round use.

      Although no agreement from the Committee on Amendment of the Crandon

Park Master Plan to amend the Master Plan or to modify the Declaration or the

Settlement Agreement to allow the proposed additional structures or use of the

park was secured, the referendum approved by the County Commission was placed

on the November 6, 2012 ballot and approved by the voters of Miami-Dade

County.

      A month after the election, Bruce Matheson filed the instant action against

the County seeking to invalidate the referendum on three grounds: first, he claimed



                                         38
that the ballot title and summary of the referendum failed to comply with section

101.161 of the Florida Statutes (count I); second, he claimed that the ballot title

and summary of the referendum violated article 7 of the County’s Home Rule

Charter (count II); and third, he claimed that the County’s misstatements and

concealments with respect to the referendum and Resolution R-660-12 violated

paragraph A(2) of the Citizens’ Bill of Rights in the County’s Home Rule Charter

(count III). IPC was allowed to intervene in the action.

      While this matter was pending, the County finalized an agreement with IPC

which it claims are within the parameters delineated in Resolution R-660-12. The

Board of County Commissioners conditionally approved that agreement.

      In August 2013, Matheson moved for entry of final summary judgment. As

to count I, he argued that the ballot title and summary of the referendum violated

the accuracy requirements of section 101.161 of the Florida Statutes by failing to

inform the electorate of the existence of the Settlement Agreement and Amended

Final Judgment in the White litigation, as well as the Crandon Park Master Plan

and the Declaration of Restrictive Covenants, all of which operate to restrict future

expansion of the tennis complex subject to the Master Plan being amended as set

forth in the Settlement Agreement. As to count II, he argued that the ballot title

and summary of the referendum violated article 7 of the County’s Home Rule

Charter by asking the voters to endorse what were then non-binding proposals for



                                         39
the expansion of the tennis complex and to approve agreements between the

County and IPC that had yet to be negotiated. Matheson made no arguments in his

motion with respect to count III.

      The County opposed the motion and also moved for summary judgment on

Matheson’s claims. As to count I, the County argued that section 101.161 was not

violated because the required amendment of the Master Plan by three of four voters

on the Committee on Amendment of the Crandon Park Master Plan was “the

needle in the proverbial haystack of development approvals required to accomplish

the Tennis Center project,” therefore, it was not necessary to mention anything

specifically with respect thereto either in the ballot question or in the resolution

referenced therein. The County also argued that the ballot title and summary were

sufficiently specific to put the voters on notice of the chief purpose of the

referendum. As to count II, the County argued that the referendum did not violate

Article 7 of the Home Rule Charter because it was not required to present the

voters with fully negotiated, final deals prior to the issues being put on the ballot.

IPC filed its own cross-motion for summary judgment, arguing that summary

judgment should be granted on Matheson’s claims for many of the same reasons

argued by the County.

      After holding a hearing on the parties’ motions, the trial court entered an

order granting final summary judgment in favor of the County and IPC as to counts



                                         40
I and II, finding the “‘chief purpose’ of the referendum was properly provided to

the voters by the title and ballot summary,” and as to count III because Matheson

had made no argument as to it. This appeal ensued.

      3. Legal Analysis

      The standard of review of the instant final summary judgment is de novo.

See Miami-Dade Cnty. v. Vill. of Pinecrest, 994 So. 2d 456, 457 (Fla. 3d DCA

2008) (applying a de novo standard of review in determining whether a local

referendum complied with the accuracy requirements of section 101.161 of the

Florida Statutes).

      Florida law requires that every ballot initiative placed before the public for a

vote must be accompanied by a short title and a summary which clearly and

unambiguously state the primary purpose of the ballot initiative:

            Whenever a . . . public measure is submitted to the vote of the
      people, a ballot summary of such . . . public measure shall be printed
      in clear and unambiguous language on the ballot after the list of
      candidates . . . . The ballot summary of the . . . public measure shall
      be an explanatory statement, not exceeding 75 words in length, of the
      chief purpose of the measure. . . . The ballot title shall consist of a
      caption, not exceeding 15 words in length, by which the measure is
      commonly referred to or spoken of.

§ 101.161(1), Fla. Stat (2012) (emphasis supplied); Askew v. Firestone, 421 So. 2d

151, 155-56 (Fla. 1982) (confirming that section 101.161 applies to “all ballots”);

see also Wadhams v. Bd. of Cnty. Comm’rs of Sarasota Cnty., 567 So. 2d 414, 416




                                         41
(Fla. 1990) (applying section 101.161 to a county ballot initiative to amend a

county charter).

      The purpose of these requirements “is to assure that the electorate is advised

of the true meaning, and ramifications, of an amendment” so that the electorate is

not misled but is put on “fair notice of the decision [it] must make.” Askew, 421

So. 2d at 155-156; see also Wadhams, 567 So. 2d at 416. This means not just that

a ballot title and summary must faithfully track the text of a proposed initiative, but

that they may not “fly under false colors” or “hide the ball” by failing to disclose

the initiative’s true effect. Armstrong v. Harris, 773 So. 2d 7, 16 (Fla. 2000).

      In Askew, for example, the Florida Legislature by joint resolution proposed

an amendment to Section 8 of Article II of the Florida Constitution relating to

lobbying by former legislators and statewide elected officials.        That proposal

would have removed an absolute two-year ban on lobbying by former legislators

and statewide elected officials who filed financial disclosures. Askew, 421 So. 2d

at 155. While the title to the proposed amendment and its summary accurately

disclosed that former legislators and statewide elected officials who failed to file

financial disclosures would be precluded from lobbying activities for two years, it

was struck down for failure to disclose that the proposal would repeal the existing,

more stringent post-term prohibition on lobbying:

      As it stands, subsection 8(e) precludes lobbying a former body or
      agency for two years after an affected person leaves office. The ballot


                                          42
      summary neglects to advise the public that there is presently a
      complete two-year ban on lobbying before one’s agency and, while it
      does require the filing of financial disclosure before anyone may
      appear before any agency for the two years after leaving office, the
      amendment’s chief effect is to abolish the present two-year total
      prohibition. Although the summary indicates that the amendment is a
      restriction on one’s lobbying activities, the amendment actually gives
      incumbent office holders, upon filing a financial disclosure statement,
      a right to immediately commence lobbying before their former
      agencies which is presently prohibited. The problem, therefore, lies
      not with what the summary says, but, rather, with what it does not
      say.

            ....

            If the legislature feels that the present prohibition against
      appearing before one’s former colleagues is wrong, it is appropriate
      for that body to pass a joint resolution and to ask the citizens to
      modify that prohibition. But such a change must stand on its own
      merits and not be disguised as something else. The purpose of section
      101.161 is to assure that the electorate is advised of the true meaning,
      and ramifications, of an amendment. A proposed amendment cannot
      fly under false colors; this one does.

Id. at 155-56 (some emphasis added) (footnote omitted); see also Wadhams, 567

So. 2d at 416 (invalidating a vote approving an amendment to a county charter

because although the amendment’s title and summary accurately tracked the

amendment’s language which provided that the County’s Charter Review Board

would only be permitted to meet once every four years, the ballot failed to explain

that currently there was no restriction on meetings—thus, making the chief purpose

of the amendment to curtail the Board’s right to meet).




                                        43
      In Armstrong, the Florida Supreme Court struck a ballot initiative because,

much like in Wadhams, the ballot was defective “for what it d[id] not say.”

Armstrong, 773 So. 2d at 21. There, the Court first found a ballot title and

summary “flew under false colors” because the ballot misleadingly implied that by

amending article I, section 17 of the Florida Constitution to prohibit imposition of

“cruel and unusual punishment” rather than “cruel or unusual punishment,” the

rights of Florida citizens would be enhanced or promoted through the rulings of the

United States Supreme Court:

      Use of the word “or” instead of “and” in [article 1, section 17]
      indicates that the framers intended that both alternatives (i.e., “cruel”
      and “unusual”) were to be embraced individually and disjunctively
      within the Clause’s proscription.

             This Court in Traylor v. State, 596 So. 2d 957 (Fla. 1992),
      explained that our system of constitutional government in Florida is
      grounded on a principle of “robust individualism” and that our state
      constitutional rights thus provide greater freedom from government
      intrusion into the lives of the citizens than do their federal
      counterparts . . . . In short: “[T]he federal Constitution . . . represents
      the floor for basic freedoms; the state constitution, the ceiling.” Id.

             In the present case, by changing the wording of the Cruel or
      Unusual Punishment Clause to become “Cruel and Unusual” and by
      requiring that our state Clause be interpreted in conformity with its
      federal counterpart, the proposed amendment effectively strikes the
      state Clause from the constitutional scheme. Under such a scenario,
      the organic law governing either cruel or unusual punishments in
      Florida would consist of a floor . . . and nothing more. . . .

            In the present case, a citizen could well have voted in favor of
      the proposed amendment thinking that he or she was protecting state



                                          44
      constitutional rights when in fact the citizen was doing the exact
      opposite—i.e., he or she was voting to nullify those rights.

Armstrong, 773 So. 2d at 17-18 (footnote omitted).

      The Armstrong Court then concluded that the ballot summary also “hid the

ball” by failing to accurately state the chief purpose or main effect of the proposed

amendment, that is, to nullify the Cruel or Unusual Punishment Clause of Florida’s

constitution:

              To conform to section 101.106(1), a ballot summary must state
      “the chief purpose” of the proposed amendment. In evaluating an
      amendment’s chief purpose, a court must look not to subjective
      criterial espoused by the amendment’s sponsor but to objective
      criteria inherent in the amendment itself, such as the amendment’s
      main effect. In the present case, as explained above, the main effect
      of the amendment is simple, clear-cut, and beyond dispute: The
      amendment will nullify the Cruel or Unusual Punishment Clause.
      This effect far outstrips the stated purpose (i.e., to “preserve” the
      death penalty), for the amendment will nullify a longstanding
      constitutional provision that applies to all criminal punishments, not
      just the death penalty. Nowhere in the summary, however, is this
      effect mentioned—or even hinted at. The main effect of the
      amendment is not stated anywhere on the ballot. (The voter is not
      even told on the ballot that the word “or” in the Cruel or Unusual
      Punishment Clause will be changed to “and”—a significant change by
      itself.)

Id. at 18 (footnotes omitted); see also Village of Pinecrest, 994 So. 2d at 458

(invalidating a ballot initiative amending Miami-Dade County’s Home Rule

Charter because its title flew under false colors by promising to create a uniform

county wide fire and rescue service when one had long existed and hid the ball by

purporting to create new rights while actually curtailing or eliminating them).


                                         45
      Here, as in Askew and Armstrong, the ballot summary both “fl[ies] under

false colors” and “hide[s] the ball.” While the ballot summary suggests that the

electorate is being asked to “approve” the “[e]rection of permanent structures and

expansion of existing structures at Crandon Park Tennis Center for public park and

tennis tournament use” and “modifications and extension of agreements” with IPC,

in reality it is nothing more than a conditional or non-binding straw ballot with no

binding official effect. Compare City of Miami v. Staats, 919 So. 2d 485, 486-87

(Fla. 3d DCA 2005) (finding a City of Miami ballot question which clearly stated

that it was a “Straw Ballot” and asked “Shall the voters of Miami-Dade elect the

Tax Assessor instead of the County Manager of Miami-Dade County appointing

the Tax Assessor,” flew under false colors and hid the ball because the ballot title

and summary failed “to adequately inform the voting public that their response

ha[d] no official effect, i.e., that the ballot question [was] simply a nonbinding

opinion poll”), with City of Hialeah v. Delgado, 963 So. 2d 754, 757 (Fla. 3d DCA

2007) (finding that a straw ballot which asked “Would you support a voter

petition” to resolve the same issue addressed in Staats complied with section

101.161(1) because the ballot language adequately informed the voters that the

ballot measure had no binding effect).

      The ballot summary also “hid[] the ball” by failing to mention or disclose

that approval of the proposed changes were conditioned on the agreement of a third



                                         46
party, the Committee on Amendment to the Crandon Park Master Plan. That is,

the summary failed to inform the voters that the changes proposed by the

resolution for which approval was sought could not be made by virtue of a “yes”

vote on the referendum.     See Armstrong, 773 So. 2d at 21 (finding a ballot

question hid the ball from the voters where the “ballot title and summary give no

hint of the radical change in state constitutional law that the text actually

foments”); Askew, 421 So. 2d at 156 (striking a resolution that proposed a

constitutional amendment because the ballot summary was “misleading to the

public concerning material changes to an existing constitutional provision”).

      The County takes exception to the view that it hid the ball, suggesting that

Resolution R-660-12 which is referred to in the ballot summary adequately

addresses these matters. It points to exhibit B to the resolution wherein IPC

proposed “that it would undertake to seek the receipt of all required development

approvals to ensure that all the Additional Permanent Structures comply with all

legal obligations.” (Emphasis supplied). The County suggests that the amendment

of the Master Plan “is just one of many development approvals that [IPC] will need

to obtain in order to upgrade the existing, and construct new, facilities at” the

tennis complex, comparing it to a laundry list of development approvals it must

obtain before the proposed expansion may occur, from the U.S. Army Corps of




                                        47
Engineers to the South Florida Water Management District.         Not only is the

County’s argument misleading, it is also wrong.

      The subject Master Plan prohibition on the erection of permanent structures

at Crandon Park is a unique condition that only applies to this public park, is the

result of a Settlement Agreement reached after years of litigation, and is

memorialized in the public record in a Declaration of Restrictive Covenants that

runs with the land—none of which are even mentioned in the resolution. The

Master Plan amendment process is hardly the equivalent of the routine approvals

that must be secured before making an improvement on public land. Moreover, to

increase or expand the structures currently located at the Tennis Center would

require more than just a modification of the Crandon Park Master Plan. It would

also entail invalidating the Settlement Agreement and Declaration of Restrictive

Covenants, and modifying a long since final judgment—none of which are simply

routine development approvals.        In any event, reference to “development

approvals” in an exhibit to the subject resolution is not sufficiently clear and

unambiguous to inform the voters of the unique circumstances that exist as to

expansion of the tennis complex at Crandon Park or to the conditions that must be

met before any expansion may occur.

      This all could have been avoided simply by advising voters that the

approvals being sought were conditioned on approval by a third party, all of which



                                        48
easily could have been accomplished in seventy five words as required by section

101.161:

      In accordance with Home Rule Charter Article 7, and subject to
      Crandon Park Master Plan Amendment Committee approval, do you
      approve as Resolution R-660-12 provides:

    Erection of permanent structures and expansion of existing structures
     at Crandon Park Tennis Center for public park and tennis tournament
     use, to be funded solely by tennis center and tournament revenues and
     private funds; and

    Modification and extension of agreements with operator of Sony
     Open Tennis Tournament or its successors.

      In finding that the ballot summary fails to comply with section 101.161(1), I

do not disagree with the County’s contention that Article 7 of the County’s Home

Rule Charter requires that voters also approve of the proposed expansion of the

tennis complex and modification/extension of agreements with IPC in a County-

wide referendum. However, if the voters are being asked to approve the changes

that the County wished to make, they must be made aware of the fact that the

County’s desires and their approval of them are conditional or will not effectuate

the proposed changes.

      Finally, IPC questions the validity of the Settlement Agreement in the White

proceeding, suggesting that the Master Plan amendment process was an unlawful

delegation of legislative authority by the Board of County Commissioners.

However, IPC abandoned this argument at the summary judgment hearing below,



                                        49
agreeing that this question would be resolved in separate litigation pending in the

circuit court.   A substantial portion of IPC’s Answer Brief on this appeal is

dedicated to this very issue, which IPC candidly admits is not now properly before

us in this appeal. Indeed, after spending some twenty pages providing the factual

background for and discussing the “unlawful delegation” issue, IPC concedes

“[t]hat issue can only be solved in [the trial] court, such as in IPC v. Matheson,

which may later reach this Court.” Needless to say, this particular issue need not

be addressed in this appeal.

      4. Conclusion

      Because the ballot summary misled the voters as to the true legal effect of

the referendum and failed to disclose material information necessary for the public

to make an informed decision under section 101.161, I would find that the ballot is

defective and that the post-election results of the subject referendum must be

invalidated. I would therefore reverse the order granting final summary judgment

in favor of the County and IPC and remand with instructions that final summary

judgment be granted in favor of Matheson.




                                        50
