author: POLSTON, J. CANADY, J.,

text:
    CITRUS COUNTY HOSPITAL BOARD, etc., et al., Appellants, v. CITRUS MEMORIAL HEALTH FOUNDATION, INC., etc., Appellee.
    No. SC13-411.
    Supreme Court of Florida.
    Nov. 13, 2014.

      Barry Scott Richard of Greenberg Trau-rig, P.A., Tallahassee, FL, and William John Grant of the Law Office of Grant & Dozier, Inverness, FL, on behalf of the Citrus County Hospital Board; and Pamela Jo Bondi, Attorney General, Enoch Jonathan Whitney, Assistant Attorney General, Diane G. DeWolf, Deputy Solicitor General, and Rachel Erin Nordby, Deputy Solicitor General, Tallahassee, FL, on behalf of the State of Florida, for Appellants.
    Peter D. Webster and Christine Davis Graves of Carlton Fields, P.A., Tallahassee, FL, and Sylvia H. Walbolt and Gary L. Sasso of Carlton Fields, Tampa, FL, for Appellee.
   POLSTON, J.

This case is before the Court on appeal from the First District Court of Appeal’s decision in Citrus Memorial Health Foundation, Inc. v. Citrus County Hospital Board, 108 So.3d 675 (Fla. 1st DCA 2013), which held that the special law enacted at chapter 2011-256, Laws of Florida, impairs the Foundation’s contracts in violation of article I, section 10 of the Florida Constitution. For the reasons below, we affirm the First District’s decision.

I. BACKGROUND

In 1949, the Florida Legislature created the Citrus County Hospital Board, an independent special district charged with operating a public hospital in Citrus County, Florida. In 1990, the Hospital Board utilized section 155.40, Florida Statutes, which was enacted in 1982 and authorizes county hospital districts to lease their hospitals to specified Florida business entities so that public hospitals may more effectively compete with private hospitals.

Specifically, through two contracts — a lease and an agreement for hospital care— the Hospital Board turned the hospital’s operation and management over to the Citrus Memorial Health Foundation, Inc., a Florida not-for-profit corporation incorporated in 1987 under chapter 617, Florida Statutes. Transferring control of the hospital to the Foundation through these agreements, which are effective until 2033, allows the hospital to avoid participating in the State retirement program and to engage in joint ventures previously not available to it because of the Hospital Board’s public status. The Foundation has likewise benefited from its relationship with the Hospital Board, by for example, using its status as the operator of a public hospital and its accountability to the Hospital Board to obtain sovereign immunity and recalculate its Medicaid rates.

Though the Hospital Board and Foundation are legally separate entities, the Hospital Board has been involved in various ways with the Foundation’s activities. For example, the Hospital Board facilitated the Foundation’s incorporation, and the Foundation’s original articles of incorporation listed among its purposes “[t]o operate exclusively for the benefit of and to carry out the purposes of but not in any way as an agency of the Citrus County Hospital Board.” Further, for many years after the Foundation’s incorporation, including in 1990 when the lease and agreement for hospital care were executed, the Hospital Board, through its five trustees, held the majority position on the Foundation’s governing board. Significantly, however, the Foundation later amended its articles of incorporation to eliminate the Hospital Board’s majority position.

Thereafter, disputes arose between the parties. In 2011, the Legislature became involved and enacted chapter 2011-256, Laws of Florida, based on its determinations that “meaningful oversight by the hospital board is necessitated in light of the [Foundation’s] status as an instrumentality of the hospital district,” that “restoration of meaningful hospital board representation on the board of the [Foundation] and implementation of appropriate accountability and oversight by the hospital board are necessitated in order to ensure the sovereign immunity status of the [Foundation] as an instrumentality of the hospital district,” and that “the ability of the hospital board to continue to act in the public interest on behalf of the taxpayers of Citrus County requires mechanisms to ensure adherence to the hospital board’s public responsibilities.” Ch.2011-256, Laws of Fla.

In pertinent part, section 3 of the special law reenacts the Hospital Board’s charter. Section 16 of the charter includes fifteen subsections, that, for the first time, specifically address the Hospital Board’s relationship with the Foundation (or any future lessee) and that are “in addition to the requirements for any [ ] lease set forth in section 155.40.” Ch.2011-256, § 3(16), at 59-60, Laws of Fla. For example, these • provisions (i) require the Hospital Board to approve the Foundation’s articles of incorporation and bylaws (including those currently in effect) — section 16(2); (ii) require the Foundation to amend its articles of incorporation so that the Hospital Board’s trustees constitute a majority of its voting directors — section 16(5); (iii) require the Hospital Board to approve all Foundation directors, including current directors — section 16(6); (iv) require the Hospital Board to approve certain borrowing, indebtedness, policies, budgets, capital projects, and expenditures — sections 16(8) and (10); (v) require the Hospital Board to approve the Foundation’s annual and operating capital budget — section 16(9); (vi) allow the Hospital Board to order, at the Foundation’s expense, an independent audit of the Foundation’s fiscal management of the hospital — section 16(11); and (vii) require that any dispute between the Foundation and the Hospital Board be subject to the statutory procedures applicable to governmental disputes — section 16(15).

The Foundation filed suit against the Hospital Board and the State in circuit court challenging the special law and seeking, among other things, a declaratory judgment that section 16 of the Hospital Board’s charter as enacted in section 3 of the special law applies to impair its articles of incorporation, lease, and agreement for hospital care in violation of article I, section 10 of the Florida Constitution. After dismissing the State as a party, the circuit court granted summary judgment for the Hospital Board based on its conclusions that the Foundation is prohibited from challenging the constitutionality of the special law because it is a public or quasi-public corporation and that the special law does not impair the Foundation’s contracts.

On appeal, the First District reversed, holding that, as applied to the Foundation, the special law “significantly alters the parties’ contractual rights and is an unconstitutional impairment of their contracts so as to be prohibited by [a]rticle I, [s]ection 10.” Citrus Mem’l, 108 So.3d at 676.

II. ANALYSIS

The dispositive issues before this Court are whether the contract ■ clause of the Florida Constitution applies to the Foundation’s contracts and, if so, whether, as applied, the special law unconstitutionally impairs the Foundation’s contracts. As explained below, we resolve both of these issues in the Foundation’s favor.

A. The Contract Clause Applies to the Foundation’s Contracts

As a threshold matter, both the Hospital Board and the State argue that the Foundation should not be heard to complain about the special law’s alleged impairment of its contracts because it is a public or' quasi-public corporation and therefore not entitled to protection under the contract clause. We disagree.

Article I, section 10 of the Florida Constitution provides that “[n]o ... law impairing the obligation of contracts shall be passed.” As part of the Florida Constitution’s Declaration of Rights, this right belongs to the people, including corporations, as against the government. See Traylor v. State, 596 So.2d 957, 963 (Fla.1992) (explaining that “[e]ach right” in the Declaration of Rights is “a distinct freedom guaranteed to each Floridian against government intrusion” and “operates in favor of the individual, against [the] government”); see also State Farm Mut. Auto. Ins. Co. v. Gant, 478 So.2d 25, 26 (Fla.1985) (applying the contract clause to a corporation).

Although Florida law is clear that corporations, like individuals, are entitled to protection under the contract clause, this Court has not addressed whether the contract clause protects a corporation that has contracted with a hospital district under section 155.40, Florida Statutes, to operate and manage a public hospital. In other contexts not involving the contract clause, Florida courts have precluded State agencies and local governments from challenging the constitutionality of certain legislation. For example, in Department of Education v. Lewis, this Court held that “State officers and agencies must presume legislation affecting their duties to be valid, and do not have standing to initiate litigation for the purpose of determining otherwise.” 416 So.2d 455, 458 (Fla. 1982) (addressing a challenge to an appropriations law under article III, section 12 of the Florida Constitution); see also Fla. Dep’t of Agrie. & Consumer Seros, v. Miami-Dade Cnty., 790 So.2d 555, 558 (Fla. 3d DCA 2001) (relying on Lewis to hold that county and city lacked standing under article I, section 12 of the Florida Constitution to challenge the constitutionality of the statutory citrus eradication program).

Further, in O’Malley v. Florida Insurance Guaranty Ass’n, 257 So.2d 9, 11 (Fla.1971), this Court examined whether a legislatively-created corporation was public or private for purposes of an alleged violation of article III, section ll(a)(12), which prohibits a special law or general law of local application pertaining to or granting any privilege to a private corporation. In so doing, we distinguished private and public corporations as follows:

Private corporations are those which have no official duties or concern with the affairs of government, are voluntarily organized and are not' bound to perform any act solely for government benefit, but the primary object of which is the personal emolument of its stockholders.
Examples of public corporations in Florida are: the rural electrical cooperatives, city housing authorities, The Inter-American Cultural and Trade Center Authority, the Soil and Water Conservation Districts, and the Jacksonville Expressway Authority. Their business ordinarily is stipulated by the Legislature to fill a public need without private profit to any organizers or stockholders. Their function is to promote the public welfare and often they implement governmental regulations within the state’s police power. In a word, they are organized for the benefit of the public.

O’Malley, 257 So.2d at 11 (citations omitted); see also Forbes Pioneer Boat Line v. Bd. of Com’rs of Everglades Drainage Dist., 77 Fla. 742, 82 So. 346 (1919) (discussing public, quasi-public, and private corporations in determining that the legislatively-created board of commissioners of the drainage district was a “public quasi corporation” that had only the authority delegated to it by law).

However, our decision in O’Malley did not address a corporation’s standing to allege a contract clause violation. Further, unlike the legislatively-created corporation at issue in O’Malley, the Legislature did not create the Foundation, and the Foundation is not a State agency or local government. Instead, the Foundation was incorporated as a not-for-profit corporation under chapter 617, Florida Statutes, just as any other Florida not-for-profit corporation would be, for the specific purpose of taking control of the public hospital — by contract — as authorized by section 155.40. Moreover, while there is no indication that the corporation in O’Malley was created to avoid obligations applicable to public entities, even though the Foundation operates a hospital for the public’s benefit, spends public money, and uses public property in the process, it “was used by the [Hospital] Board for the express purpose of avoiding statutory and constitutional limitations which would pertain to the [Hospital] Board as a public entity.” Citrus Mem’l, 108 So.3d at 677. Given that the very purpose of section 155.40 is to contractually transfer control of public hospitals to entities like the Foundation, we refuse to apply O’Malley in a way that would effectively render the contracts used to accomplish this purpose meaningless. See Pan-Am Tobacco Corp. v. Dep’t of Corr., 471 So.2d 4, 5 (Fla.1984) (recognizing that “[w]here the [Legislature has, by general law, authorized entities of the state to enter into contract or to undertake those activities which, as a matter of practicality, require entering into contract, the [Legislature has clearly intended that such contracts be valid and binding on both parties”).

We also refuse to rely on representations about the Foundation’s status that the parties have made in different contexts over the years to impute the Hospital Board’s status onto the Foundation. The parties’ representations simply do not alter the fact that the Foundation is not a creature of the Legislature and is a distinct legal entity from the Hospital Board. Nor do the facts that the Hospital Board was involved with the Foundation’s incorporation, previously controlled its board, and is its sole member somehow remove the Foundation’s contracts from the protection afforded by the contract clause.

Accordingly, we hold that the contract clause applies to the Foundation’s contracts.

B. The Special Law Unconstitutionally Impairs the Foundation’s Contracts

The Hospital Board and the State next argue that, even if the contract clause applies, the First District erred by concluding that the special law unconstitutionally impairs the Foundation’s articles of incorporation, lease, and agreement for hospital care. We disagree and hold that, as applied to these contracts, section 16 of the Hospital Board’s charter as enacted in section 3 of the special law is unconstitutional.

The contract clause prohibits any “law impairing the obligation of contracts.” Art. I, § 10, Fla. Const. We have defined impairment

as meaning to make worse; to diminish in quantity, value, excellency, or strength; to lessen in power; to weaken. Whatever legislation lessens the efficacy of the means of enforcement of the obligation is an impairment. Also if it tends to postpone or retard the enforcement of the contract, it is an impairment.

State ex rel. Woman’s Benefit Ass’n v. Port of Palm Beach Dist, 121 Fla. 746, 164 So. 851, 856 (1935) (emphasis omitted). And we have “generally prohibited all forms’ of contract impairment.” State, Dep’t of Transp. v. Edward M. Chadbourne, Inc., 382 So.2d 293, 297 (Fla.1980); see also Dewberry v. Auto-Owners Ins. Co., 363 So.2d 1077, 1080 (Fla.1978) (“Any conduct on the part of the [Legislature that detracts in any way from the value of the contract is inhibited by the Constitution.” (quoting Pinellas Cnty. v. Banks, 154 Fla. 582,19 So.2d 1, 3 (1944))).

Section 16 of the Hospital Board’s charter as enacted in section 3 of the special law meets our definition of impairment. It eliminates the Foundation’s ability to operate and manage the hospital as it has contracted to do by turning the Foundation’s governance over to the Hospital Board in disregard of the Foundation’s status as a separate legal entity. See generally Marion Mortg. Co. v. State, 107 Fla. 472, 145 So. 222, 223 (1932) (agreeing that a corporate charter “is a contract between the state and [the corporation], which contract cannot be impaired by the Legislature”). And it also obligates the Foundation to comply with public accountability and financial responsibility measures that are mentioned nowhere in the parties’ agreements and that are “in addition to the requirements for any [ ] lease set forth in section 155.40.” Ch.2011-256, § 3(16), at 59, Laws of Fla. In other words, as the First District cogently stated, the special law “is a rewrite of the parties’ contractual agreements and the imposition of further obligations on the Foundation, while permitting the [Hospital] Board’s privatization of hospital management functions as [authorized by section 155.40].” Citrus Mem’l, 108 So.3d at 678.

In light of this impairment, we hold that section 16 of the Hospital Board’s charter as enacted in section 3 of the special law is unconstitutional as applied to the Foundation’s contracts. See Cohn v. Grand Condo. Ass’n, Inc., 62 So.3d 1120, 1122 (Fla. 2011) (affirming the district court’s decision that a state' statute was unconstitutional “because’ [it] impairs the obligation of contract as applied to [the plaintiff]”); see also Dewberry, 363 So.2d at 1080 (“It is axiomatic that subsequent legislation which diminishes the value of a contract is repugnant to our Constitution.”).

III. CONCLUSION

For the foregoing reasons, we affirm the First District’s decision.

It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, and PERRY, JJ., concur.

CANADY, J., dissents with an opinion.

CANADY, J.,

dissenting.

Because I conclude that Citrus Memorial Health Foundation, Inc., is a public corporation that is subject to legislative control, I dissent. I would quash the decision of the First District and adopt the analysis contained in Judge Ray’s well-reasoned dissent.

The Citrus County Hospital Board has aptly described “[t]he overarching question in this case” as “whether an entity created by a public body for the sole purpose of conducting a public function involving public property and funded by public money can unilaterally remove itself from legislative oversight of the use of public money and the operation of the public function.” Citrus Cnty. Hosp. Bd., Inc. v. Citrus Mem’l Health Found., Inc., No. SC13-411, Initial Brief of Appellant at 1 (Fla. Apr. 29, 2013). That question should be answered in the negative. The majority’s decision to the contrary departs from the understanding of the constitutional prohibition on laws impairing the obligation of contracts that has been established for nearly two centuries. The result is that the Legislature is ousted from its proper role of ensuring that the governmental activities of the Hospital Board and the Foundation are conducted in accord with the public interest.

In Trustees of Dartmouth College v. Woodward, 11 U.S. 518, 4 Wheat. 518, 4 L.Ed. 629 (1819), the Supreme Court recognized that the prohibition on state legislation impairing the obligation of contracts does not proscribe legislative interference with contractual rights of public corporations. In deciding that Dartmouth College was a private charity whose corporate charter was subject to the protection of the Contract Clause, the court relied on a distinction between public and private corporations. In his opinion for the court, Chief Justice Marshall acknowledged that “the framers of the [Constitution did not intend to restrain the States in the regulation of their civil institutions, adopted for internal government.” Id. at 629. Accordingly, Chief Justice Marshall reasoned that

[i]f the act of incorporation [of Dartmouth College] be a grant of political power, if it create a civil institution, to be employed in the administration of the government, or if the funds-of the college be public property, ... the subject is one in which the legislature of the state may act according to its own judgment, unrestrained by any limitation of its power imposed by the [Constitution of the United States.

Id. at 629-30.

Chief Justice Marshall went on, however, to conclude that Dartmouth was not such a “civil institution” but was instead “a private eleemosynary institution,” the funds of which “consisted entirely of private donations.” Id. at 632-41. Chief Justice Marshall explained that the grant by government of a “charter of incorporation” did not determine the “character of the institution.” Id. at 638. It thus could not be concluded that Dartmouth had the character of a civil institution simply on the ground that it had been granted a royal corporate charter. “The incorporating act” did not “change the character of a private eleemosynary institution” into a civil institution. Id. at 638-39. In elucidating this conclusion, Chief Justice Marshall observed:

The character of civil institutions does not grow out of their incorporation, but out of the manner in which they are formed, and the objects for which they are created. The right to change them is not founded on their being incorporated, but on their being the instruments of government, created for its purposes. The same institutions, created for the same objects, though not incorporated, would be public institutions, and, of course, be. controllable by the legislature.

Id. at 638 (emphasis added).

Chief Justice Marshall thus accepted the view that “laws concerning civil institutions ... must change with circumstances, and be modified by ordinary legislation” and that such laws “deeply concern the public.” Id. at 627.. “[T]o preserve good government, the public judgment must control” with respect to such laws. Id. If the Contract Clause were allowed to encroach into the realm of a state’s regulation of its civil institutions, “the clause would be an unprofitable and vexatious interference with the internal concerns of a State.” Id. at 628. No conceivable reason supports interpreting Florida’s Contract Clause differently. And the logic of Chief Justice Marshall’s reasoning regarding the Contract Clause defeats any due process claim against a state by a public corporation of the state.

Here, the Foundation is a civil institution — that is, a public corporation-and therefore is -“controllable by the legislature.” Its status as a public corporation, an “instrumente ] of government,” is made manifest by “the manner in which [it was] formed, and the objects for which [it was] created.” Woodward, 17 U.S. at 638. Judge Ray described the undeniable realities of the Foundation’s existence:

[The Foundation] was not voluntarily created by private citizens for their own benefit or for the benefit of any private interests whatsoever. As the Foundation has admitted, the Hospital Board created the Foundation for the purpose of fulfilling the Hospital Board’s public function of providing hospital services in Citrus County, and it still exists for that sole purpose. The Foundation has no shareholders, and the Hospital Board is its only member. As the Hospital Board has aptly described the relationship, the Hospital Board essentially restructured itself when it executed the Lease Agreement and Agreement for Hospital Care. This situation was not one where a special taxing district competitively bid the outsourcing of a public function and entered into [an] “arm’s length” bilateral contract with a private company.

Citrus Mem’l Health Found., Inc., 108 So.3d at 680.

It is of no significance that the Foundation was organized by the Hospital Board as a not-for-profit corporation under chapter 617, Florida Statutes, and not established directly by an act of the Legislature. There is simply no authority to support the conclusion that a not-for-profit corporation formed under chapter 617 will— simply because of that formality — be legally deemed not to be a public corporation. As Judge Ray further explained: “[W]hether a corporation is created directly by the State, or by an arm of the State, seems to be a distinction without a difference when, as here, the sole and exclusive purpose of the corporation is to carry out a public function for the benefit of the public.” Id. The Foundation may have been structured to avoid certain requirements that might otherwise have fallen on the Hospital Board as a governmental entity, and the Foundation may have received some charitable contributions. But those circumstances do not alter the essential character of the Foundation. The creation of the Foundation by the Hospital Board for a governmental purpose points to the inescapable conclusion that — for purposes of the Contract Clause — the Foundation is a public corporation. The opposite conclusion reached by the First District and the majority exalts incidental circumstances over the essential character of the Foundation.

At bottom, as Judge Ray recognized, there is no private property interest or right that is impaired by the legislation affecting the Foundation that the majority declares unconstitutional. As Chief Justice Marshall stated, the Contract Clause was designed “to restrain the legislature in [the] future from violating the right to property” and therefore concerns “contracts respecting property, under which some individual could claim a right to something beneficial to himself.” Woodward, 17 U.S. at 628. No one can make such a claim here. Any person involved with the Foundation was chargeable with knowledge that the Foundation was established as a public corporation to carry out a governmental purpose, as distinct from a private not-for-profit corporation established to carry out private charitable activities. Whatever private interest any person — including those who made charitable contributions — might assert regarding the relationship between the Hospital Board and the Foundation is negated by the public character of the Foundation.

In this context, the majority’s application of the Contract Clause does not protect any private contract right. Instead, it results in “an unprofitable and vexatious interference with the internal concerns of a State.” Id. at 628.

      . We have jurisdiction. See art. V, § 3(b)(1), Fla. Const.

      . We review whether the contract clause applies to the Foundation’s contracts de novo. See Dep’t of Educ. v. Lewis, 416 So.2d 455, 458 (Fla. 1982).

      . Under the agreement for hospital care, the Foundation must submit its annual operating and capital budgets to the Hospital Board so that the Hospital Board may determine, "in its discretion,” the amount of tax funds necessary for the Foundation to meet its obligation to provide hospital services for Citrus County residents and appropriate that amount to the Foundation. From 2006-2010, on average, tax funds received from the Hospital Board comprised less than 5% per year of the Foundation’s total revenues and did not exceed 6.3% in any year.

      . We apply a de novo standard of review. See Scott v. Williams, 107 So.3d 379, 384 (Fla. 2013). '

      . For example, the special law requires the Hospital Board to approve the Foundation’s articles of incorporation and bylaws (including those currently in effect); requires the Foundation to amend its articles of incorporation so that the Hospital Board's trustees constitute a majority of the Foundation's voting directors; and requires the Hospital Board to approve all Foundation directors, including current directors. See ch.2011-256, §§ 3(16)(2), (5), (6), at 59, Laws of Fla.

      . The special law requires the Hospital Board to approve the Foundation's annual and operating capital budget as well as certain borrowing, indebtedness, policies, budgets, capital projects, and expenditures of the Foundation; allows the Hospital Board to order, at the Foundation's expense, an independent audit of the Foundation's fiscal management of the hospital; and requires that any dispute between the Foundation and the Hospital Board be subject to the statutory procedures applicable to governmental disputes. Id. §§ 3(16)(8)-(11), (15), at 59-60.


source: Caselaw Access Project

author: PER CURIAM. LEWIS, J.,

license: Public Domain

text:
    BEACH COMMUNITY BANK, Petitioner, v. CITY OF FREEPORT, FLORIDA, Respondent.
    No. SC13-455.
    Supreme Court of Florida.
    Nov. 13, 2014.

      Steven Brownlow Bauman and Jeffrey Leonard Burns of Anchors Smith Grims-ley, Fort Walton Beach, FL, for Petitioner.
    Scott J. Seagle and Gwendolyn Palmer Adkins of Coppins Monroe Adkins & Dinc-man, P.A., Tallahassee, FL, for Respondent.
   PER CURIAM.

Beach Community Bank seeks review of the decision of the First District Court of Appeal in City of Freeport v. Beach Community Bank, 108 So.3d 684 (Fla. 1st DCA 2013), in which the First District held that it could exercise its certiorari jurisdiction to review the trial court’s nonfinal order finding that the City of Freeport was not immune from suit based on sovereign immunity. In its decision, the First District relied in part on Miami-Dade County v. Rodriguez, 67 So.3d 1213 (Fla. 3d DCA 2011), a decision that this Court was considering on appeal at the time. We accordingly have jurisdiction. See art. V, § 3(b)(3), Fla. Const.; Jollie v. State, 405 So.2d 418, 420 (Fla.1981).

We stayed the proceedings in Beach Community Bank pending our disposition in Rodriguez, in which the Third District Court of Appeal used its certiorari jurisdiction to address whether the defendant was immune from suit based on principles of sovereign immunity. See Rodriguez, 67 So.3d at 1223. Subsequently, in Rodriguez, we quashed the Third District’s decision and held that certiorari review was improperly used in that case, after analyzing both “irreparable harm” and “departure from the essential requirements of law.” Rodriguez v. Miami-Dade Cnty., 117 So.3d 400, 404-06 (Fla.2013). We further stressed that Rodriguez involved essential factual disputes that are not appropriately addressed through a petition for a writ of certiorari. Id. at 402.

After our decision in Rodriguez was final, we issued an order to show cause in this case requesting that the parties respond as to why the First District’s decision in this case should not be quashed based on our decision in Rodríguez. While conceding that Rodriguez is dispositive as to the First District’s decision, the City urges this Court to accept review and determine that Florida Rule of Appellate Procedure 9.130, which enumerates the types of nonfinal orders that district courts may review, should be expanded to encompass orders determining, as a matter of law, whether a party is entitled to immunity based on sovereign immunity. The City stresses that, in contrast to Rodriguez, this case involves a pure legal question turning on whether the allegations of negligence against the City concern discretionary, planning-level decisions.

Significantly, in deciding whether to accept review in this case, it is important to point out that the Florida Bar Appellate Court Rules Committee has already submitted a proposed amendment to rule 9.130, -which has been addressed in In re Amendments to Florida Rule of Appellate Procedure 9.130, 151 So.Bd 1217, No. SC13-1493, 2014 WL 5856302 (Fla. Nov. 13, 2014), and answers the question that the City asks this Court to confront in this case. This amendment permits district courts to review nonfinal orders of decisions determining entitlement to sovereign immunity where the case involves a pure legal question.

In this case, the First District concluded that the City’s claim to sovereign immunity rested on a pure question of law. We agree. Because this case falls squarely within the new rule amendment, we determine that the City should be entitled to the benefit of the new rule. This procedure is similar to the procedure that we followed in Keck v. Eminisor, 104 So.3d 359, 366 (Fla.2012), where this Court held that the defendant’s claim of individual immunity should be subject to interlocutory review by a narrow amendment to rule 9.130, as opposed to utilizing a common law writ of certiorari. Accordingly, we remanded the case for proceedings consistent with our opinion and requested the Florida Bar Appellate Court Rules Committee to submit a proposed amendment that would address the rule change mandated by our decision in Keck. See also Tucker v. Resha, 648 So.2d 1187, 1190 (Fla.1994) (agreeing with the district court’s conclusion that Florida’s appellate rules at the time did not provide for interlocutory review of the nonfinal order and amending the appellate rules immediatfely to permit interlocutory review of a claim of qualified immunity to the extent that the order turns on an issue of law); Mandico v. Taos Constr., Inc., 605 So.2d 850, 855 (Fla.1992) (quashing the decision to the extent that the district court addressed the legal issue through an improper extraordinary writ, but declaring that the rules of appellate procedure must be amended immediately and approving the decision to dismiss the suit).

Here, Beach Community Bank filed an action against the City of Freeport, asserting that the City failed to ensure a real estate developer posted an adequate security for completion of the infrastructure and failed to conduct a reasonable investigation to ascertain the authenticity and adequacy of the letter of credit, including whether the bank that issued the letter of credit was financially able to pay the letter of credit if it were called. The City moved to dismiss the complaint, asserting that the City did not owe Beach Community Bank any duty of care as to its claim and even if a duty existed, the City had complied with its own Land Development Code (LDC) so requesting additional acts beyond that explicitly required by the LDC was a challenge to the City’s policy-making, planning-level decisions, to which sovereign immunity applies. The First District held that the City was entitled to sovereign immunity, resolving that question of law as follows:

The Bank’s complaint alleged that, having adopted a provision in its LDC giving the City the authority to require the developer to post security to ensure completion of the Riverwalk development, and in fact having required such security in this case, the City negligently enforced its LDC by failing to conduct a reasonable investigation into the adequacy of the security posted by the developer. Specifically, the complaint alleged that the City was negligent by failing to conduct any investigation of DC Capital to determine the authenticity of the letter of credit and by further failing to investigate DC Capital’s financial ability to pay if the letter of credit was called.
To answer the question of whether sovereign immunity bars this action, it is necessary to determine whether the negligence alleged by the Bank relates to a discretionary or operational function of government. In this context, a “discretionary,” planning-level function involves “an exercise of executive or legislative'power such that a court’s intervention by way of tort law would inappropriately entangle the court in fundamental questions of policy and ■planning.” Mosby v. Harrell, 909 So.2d 323, 328 (Fla. 1st DCA 2005). An “operational” function, on the other hand, “is one not necessary to or inherent in policy or planning, that merely reflects a secondary decision as to how those policies or plans will be implemented.” Dep’t of Health & Rehabilitative Seros, v. 656 So.2d 906, 911 n. 4 (Fla.1995); Mosby, 909 So.2d at 328. Operational decisions are not immune. Trianon Park Condo. Ass’n v. City of Hialeah, [468 So.2d 912, 924 (Fla.1985) ]. “Functionally, the discretionary-versus-operational test is intended to determine where, in the area of governmental processes, orthodox tort liability stops and the act of governing begins.” Wallace [v. Dean, 3 So.3d 1035, 1044 (Fla.2009)] (internal quotations omitted).
The City asserts it is immune from suit because its decisions concerning how it allocates its resources, enforces its laws, and protects the public are matters usually protected from judicial interference. See Trianon Park Condo. Ass’n, 468 So.2d at 918-20 (“[Cjertain discretionary functions of government are inherent in the act of governing and are immune from suit”). In Carter v. City of Stuart, 468 So.2d 955, 957 (Fla.1985), the Florida Supreme Court held that a city’s discretionary choice to enforce laws, including the priority and manner of enforcement, is a planning-level, judgmental decision for which the government is immune from liability. Applying this principle to the facts of the case, the Carter court determined that the amount of resources and number of employees to be allocated to the enforcement of an “animal control” ordinance were municipal “policy decisions” over which the city had the right to set priorities regarding whether or not to enforce its ordinance. Id.
By analogy to Carter, the City, as the sovereign, asserts its right to enforce its own LDC, to enforce it partly, or not to enforce it at all. The City had the right to decide what level of compliance was sufficient and how much, if any, of its limited resources should be allocated to enforcing compliance by a developer putting up security for an approved development. ...
As a matter of policy, the City had the right to decide it would require developers to post security. In so doing, the LDC obliged the City to approve as adequate the amount of the security, which is calculated based on the criterion expressed in the LDC. The Bank does not challenge the amount of the security posted. The City’s decision that receipt of a written guarantee of security was sufficient compliance with the LDC falls within a municipality’s inherent, fundamental policy-making authority. Regardless of its wisdom, the City’s decision not to dedicate resources towards fraud prevention by investigating the authenticity of the security or the financial solvency of its backer, was a policy decision that we are not permitted to second-guess.

Beach Community Bank, 108 So.3d at 690-91. We agree that the City was entitled to sovereign immunity regarding the question presented here.

The amendment to rule 9.130 covers this exact scenario pertaining to a nonfinal order denying a sovereign immunity defense as a matter of law. Accordingly, we accept jurisdiction and quash the decision below to the extent that the First District relied on Rodriguez to review the question based on a writ of certiorari. However, because the amendment addressed in In re Amendments to Florida Rule of Appellate Procedure 9.130, No. SC13-1493, covers this exact scenario pertaining to a nonfinal order denying a sovereign immunity defense as a matter of law, and because we approve the opinion below as it relates to whether the City was entitled to sovereign immunity in this case, we remand this case for further proceedings consistent with this opinion. See, e.g., Mandico, 605 So.2d at 855 (following a similar procedure where the Florida Rules of Appellate Procedure were amended after the district court addressed the legal issue through the improper use of an extraordinary writ).

It is so ordered.

LABARGA, C.J., and PARIENTE, QUINCE, and PERRY, JJ., concur.

LEWIS, J., concurs in part and dissents in part with an opinion.

CANADY and POLSTON, JJ., concur in result only.

LEWIS, J.,

concurring in part and dissenting in part.

I agree with the majority to the extent that the decision below be quashed based upon reliance on Miami-Dade County v. Rodriguez, 67 So.3d 1213 (Fla. 3d DCA 2011). However, I dissent with regard to the retroactive application of a significant Court opinion directed rule change.