Boca Raton is challenging last month’s appellate court ruling against the city’s ban on conversion therapy. That’s the attempt—which mainstream medical groups consider pseudoscience—to change sexual orientation from gay or lesbian to straight.
A split, three-judge panel of the 11th U.S. Circuit Court of Appeals struck down the ruling by U.S. District Court Judge Robin Rosenberg against the request for a preliminary injunction against the ban, which applies to minors. That action came from two therapists—Robert Otto and Julie Hamilton—who also challenged Palm Beach County’s ban.
Last week, the city and county filed a petition asking for a rehearing before all 12 active judges. The Atlanta-based 11th Circuit hears appeals from Florida, Georgia and Alabama. Seven of the 12 judges would have to consent for Boca Raton to get that full hearing.
Litigants can’t appeal just because they lose. They must prove that a ruling was wrong on the law. Attorneys for Boca Raton and the county maintain that judges Britt Grant and Barbara Lagoa—who formed the majority and have histories of opposition to LGBTQ issues—“overlooked or misapprehended certain points of law or fact.” Without saying so explicitly, the city and county allege that Grant and Lagoa overreached.
For one thing, the attorneys write, Grant and Lagoa shaped their opinion as if it were the final word on the ban. In fact, the issue only was the injunction.
“Precedent,” the attorneys say, “requires that the Court, in reviewing the denial of a preliminary injunction, ‘not review the intrinsic merits of the case.’” Had this been the arguments on the ban itself, the petition says, the city and county would have presented much more evidence. Indeed, Rosenberg concluded that a challenge to the ban itself would fail.
But even for this hearing, the petition says, Rosenberg “analyzed the available record evidence and found that protecting the physical and psychological well-being of minors from harms caused by sexual orientation and gender identity change efforts is a compelling interest.”
The city contends that the ban imposes a limit on certain therapies and thus is a medical issue. The plaintiffs argue—and Grant and Lagoa agreed—that the ban amounts to a limit on speech, requiring the city to show a need to overcome a First Amendment standard of scrutiny.
Grant and Lagoa, the petition states, ignored precedent. They concluded that a First Amendment test—the highest level of judicial scrutiny—is necessary “simply because the therapy is provided through words” and that “professional conduct effectuated through speech is now treated differently than other professional conduct and may be regulated only if strict scrutiny is satisfied.”
In their ruling, Grant and Lagoa referred to the successful challenge of Florida’s law that prohibited pediatricians from talking with parents about whether they had guns in their homes. That issue also went before the full 11th Circuit, and Grant and Lagoa contend that it also turned on a question of speech.
Boca Raton’s attorneys, though, believe that Grant and Lagoa “misapplied” the decision in what became known as “Docs. vs. Glocks.” The law failed, they argue, because the Legislature “relied on six anecdotal issues and not professional studies in implementing the ban—not because there is an inherent prohibition against regulation of professional speech.” Having written a lot about that law, I can confirm that the attorneys are correct.
Mat Staver is chairman of the Orlando-based Liberty Counsel, which represents the plaintiffs. In a statement, Staver said the chance of a rehearing “is about the same chance of winning the lottery.” The city and county “need to understand,” Staver said, “that counselors and their clients have freedom in the counseling room and do not have to succumb to political censorship and agendas from government ideologues.”
I’ll update when the 11th Circuit decides.
Politics and BH3 in Delray
Delray Beach politics were at play last week when the community redevelopment agency considered a request for more time from the developer of the project considered key for West Atlantic Avenue.
As I wrote before the meeting, BH3 is negotiating with Publix to be the grocer that would anchor Fabrick, the mixed-use project on roughly nine acres of CRA-owned land next to the Fairfield Inn. Because of the uncertainty that the COVID-19 pandemic has brought to the retail industry, BH3 wants an additional 10 months to submit its site plan and get city approval.
Mayor Shelly Petrolia’s opposition was predictable. After leading the effort to abolish the independent CRA, Petrolia tried to steer the contract to a developer who already had failed to deliver. City commissioners Julie Casale and Shirley Johnson were similarly skeptical. They and Petrolia held up approval of the West Atlantic Redevelopment Plan over differences with competing political factions.
Some objections to the extension didn’t square with reality or the facts. Petrolia complained that BH3’s latest version didn’t have enough retail. Even before the pandemic, however, e-commerce was forcing many brick-and-mortar retailers to close. Any developer seeking a construction loan could have problems right now with a project that lenders considered too heavy on retail.
In an interview, Commissioner Ryan Boylston noted that—in terms of retail—the CRA’s request for proposal mentioned only a grocer, a pharmacy and a financial institution. The pharmacy would be inside the Publix, and BH3 is negotiating with a financial institution.
Casale argued that the project is supposed to be an extension of downtown Delray Beach, meaning East Atlantic Avenue. Boylston said that never has been the CRA’s goal for the property.
Making the project work for the community has been the priority. To that end, BH3 solicited community input and drastically redesigned Fabrick based on those comments. The CRA also had wanted something much toned down from the second version.
The board told CRA staff to work out a compromise—no details provided. Perhaps that could mean a shorter extension. The CRA will hold a special meeting at 4 p.m. Thursday. If a majority of board members remain unsatisfied, they could put BH3 on notice of default, as happened last winter, just before the pandemic. BH3 avoided default by submitting documents.
“I think our board needs to be a little bit more understanding,” Boylston said, referring to the pandemic. BH3 has “adjusted the project in all the right ways.”
Neil Schiller, BH3’s attorney, said he and the developer “had a good meeting” Monday with CRA staff members. They will talk again this afternoon.
If the CRA terminates the contract, BH3 almost certainly will sue. The company invoked the “Act of God” clause in the contract when the pandemic began. Legal action would prevent the city from choosing another developer and would add to Delray Beach’s considerable legal costs from other high-profile lawsuits.
But this is Delray Beach.
Tracking the Boca election
Constance Scott is outraising Yvette Drucker, according to the first financial reports for the Boca Raton City Council Seat C race.
Scott, who held the seat from 2009 to 2015, received about $23,5000 in October, the most recent month available. It also was the first month that Scott and Drucker recorded any contributions. Drucker got about $8,000.
Scott got donations from philanthropists Richard Schmidt ($1,000) and Christine Lynn ($500). Other donors included former Councilman Bill Hager and former Boca Raton Regional CEO Jerry Fedele.
The city council appointed Drucker to fill the seat on an interim basis until March unless incumbent Jeremy Rodgers can return for any meetings. A member of the Naval Reserve, Rodgers was called to active duty overseas.
On Oct. 28, Drucker received $1,000 from the developer of the proposed Liv on Fifth project and another $1,000 from Bonnie Miskel, the developer’s attorney. Last week, Drucker was in the 3-2 majority that voted to send the project to the state for review. The vote kept the project alive and went against the staff recommendation.
Based on that timetable, Liv on 5th could be back before the council for a second and final hearing after the election. The developer and Miskel also each gave Scott $1,000 contributions.
And who’s running
That Seat C race officially will have three candidates. Bernard Korn, who has lost twice for mayor, qualified last week to join Drucker and Scott.
The Boca Bowl update
Brigham Young University will face the University of Central Florida in next week’s Boca Raton Bowl.
The Cougars are ranked 14th in the Associated Press poll. They will be the highest-ranked team to play at Florida Atlantic University Stadium, whether in a regular season FAU game or the Boca Bowl.
BYU is in Provo, Utah, which will make it the team to have traveled farthest, assuming the game is played. Capacity will be 6,000, or 20 percent of normal capacity.