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Leon v. Carollo

Florida Court of Appeals, Third District

May 2, 2018

Alfonso "Alfie" Leon, Appellant,
Joe Carollo, et al., Appellees.

         Not final until disposition of timely filed motion for rehearing.

          An Appeal from the Circuit Court for Miami-Dade County Lower Tribunal No. 17-26678, Thomas J. Rebull, Judge.

          KYMP, LLP, Juan-Carlos "J.C." Planas and Matthew S. Sarelson, for appellant.

          Victoria Méndez, City Attorney and Forrest L. Andrews, Assistant City Attorney; Kuehne Davis Law, P.A., Benedict P. Kuehne and Michael T. Davis; Tania Cruz, P.A. and Tania Cruz Gimenez; Greenspoon Marder, P.A. and Joseph S. Geller (Fort Lauderdale); Coffey Burlington and Kendall Coffey, for appellees.

          Before, ROTHENBERG, C.J., and SCALES and LUCK, JJ.

          LUCK, J.

         As a general rule, Florida courts have no inherent power to determine an election contest after a candidate has been elected. The legislature created a narrow exception to the no-inherent-power rule for post-election challenges where the successful candidate is ineligible for the nomination or office in dispute. The issue in this case is whether the requirement in the Miami city charter that a city commission candidate reside in the district at least one year before the qualifying date is an eligibility requirement, and therefore, within the narrow exception created by the legislature. Because we conclude that it is not, the courts have no inherent power to determine this post-election contest based on Miami's one-year-residency requirement for city commission candidates, and the case was properly dismissed by the trial court.


         On November 21, 2017, Joe Carollo won a run-off election against Alfonso "Alfie" Leon for the district three seat on the Miami city commission. The results were certified on November 27, and eight days later, Leon filed an emergency amended verified complaint contesting the election under Florida Statutes section 102.168(3)(b).

         The complaint alleged that Miami city charter section 4(c) required commission candidates to reside in the district at least one year prior to qualifying for election. Carollo, Leon's complaint alleged, did not reside in district three within one year of the September 23, 2017 qualifying deadline for the commission election. Leon sought a judgment overturning the election because Carollo was ineligible to serve as the district three commissioner, and an order to rescind the certification of Carollo as the winner of the November 21 election.

         The trial court held a four-day bench trial in January 2018. At the end of it, and after post-trial briefing, the trial court dismissed the lawsuit as an unauthorized and improper post-election challenge under section 102.68(3)(b) because the one-year-residency requirement was not an eligibility requirement to hold office. The trial court also concluded, on the merits, that Carollo had proven he resided in district three at least one year before qualifying for election.

         Leon appeals both rulings. We do not address the merits of Leon's residency challenge because we agree with the trial court that the lawsuit was due to be dismissed as an unauthorized post-election challenge to Carollo's qualifications to run for office.[1]


         While at common law there was no right to a post-election challenge, the legislature added section 102.168(3)(b) to allow a post-election challenge based on the "[i]neligibility of the successful candidate for nomination or office in dispute."[2] § 102.168(3)(b), Fla. Stat. (2017); see also Burns v. Tondreau, 139 So.3d 481, 485 (Fla. 3d DCA 2014) ("Because 'there is no common law right to contest elections, any statutory grant must necessarily be construed to grant only such rights as are explicitly set out. . . . In 1999, the Florida Legislature amended section 102.168 to allow for post-election challenges based on the successful candidate's ineligibility for the nomination or office in dispute." (quoting McPherson v. Flynn, 397 So.2d 665, 668 (Fla. 1981))). In Burns, we explained what section 102.168(3)(b) means by a successful candidate's "ineligibility" for office.

         Section 102.168(3)(b) ineligibility, we concluded in Burns, refers to "constitutional ineligibility" - "the constitutional requirement for holding the office sought." Burns, 139 So.3d at 484. Section 102.168(3)(b) allows a post-election challenge to "a candidate's constitutional eligibility to hold office." Id. For municipal candidates, like the Miami district three commissioner, we look to the city's constitution - its charter - for the eligibility requirements to hold office. See id. ("[T]he City is a municipality, and the paramount law of a municipality is its charter . . . . [Thus], the City's Charter establishes a person's eligibility to serve as mayor." (quotation ...

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