GALAXY FIREWORKS, INC., APPELLANT,
v.
THE HONORABLE JEB BUSH, GOVERNOR OF THE STATE OF FLORIDA, AND THE STATE OF FLORIDA, APPELLEES; ITZHAK DICKSTEIN, APPELLANT, V. THE HONORABLE JEB BUSH, GOVERNOR OF THE STATE OF FLORIDA, AND THE STATE OF FLORIDA, APPELLEES
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The court reversed summary judgment for the state, finding a material factual issue regarding whether an executive order prohibiting fireworks sales constituted a compensable taking by preventing transportation of inventory.
Summary judgment for the state was improper because a material factual issue existed regarding whether the executive order precluded transportation of the plaintiffs' fireworks inventory.
[1] An executive order restricting fireworks sales may constitute a compensable taking if it effectively prevents transportation and sale of existing inventory, presenting a…
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Join FLexlaw to unlock all legal intelligenceGalaxy Fireworks, Inc. and Itzhak Dickstein filed an inverse condemnation action alleging that Executive Order 98-165 deprived them of the opportunity…
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SALCINES, Judge.
In a consolidated action below, Galaxy Fireworks, Inc., and Itzhak Dickstein filed an inverse condemnation action against the State of Florida and Jeb Bush, the Governor of the State of Florida. The complaint alleged that Executive Order 98-165 deprived the plaintiffs of the opportunity to sell fireworks for the July 1998 fireworks sales season and that the prohibition constituted a compensable taking. The trial court entered a final summary judgment in favor of the defendants and concluded that there had been no seizing, damage, or destruction of the plaintiffs’ inventories by the State. This consolidated appeal seeks review of the final summary judgment. We reverse and remand for further proceedings.
A summary judgment is proper only when there is an absence of a genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Maggio v. Dep’t of Labor and Employment Sec., 910 So. 2d 876, 878 (Fla. 2d DCA 2005). This court reviews de novo an order granting summary judgment, and we must draw every inference in favor of the party against whom the summary judgment was entered. Id. at 878.
In the present case, the trial court’s entry of summary judgment was error. There was a material issue of fact concerning whether Executive Order 98-165 precluded the transportation of the plaintiffs’ supply of fireworks within the state and across the state border. Accordingly, we reverse the final summary judgment in favor of the defendants and remand for further proceedings.
Reversed and remanded.
WHATLEY, J., concurs.
FULMER, C.J., concurs with opinion in which WHATLEY, J., concurs.
FULMER, Chief Judge,
concurring.
I agree with the majority that the trial court erred by concluding that there were no disputes of material fact. I write to point out that the trial court’s conclusion that the Plaintiffs’ property was “incapable of any lawful use” is not supported by the record in this case. Unlike the citrus trees in Department of Agriculture & Consumer Services v. Polk, 568 So. 2d 35 (Fla.1990), the Plaintiffs’ inventory of fireworks was not “diseased” or otherwise lacking in marketable value. Further, in my view the law governing business damages in eminent domain proceedings, which the trial court relied on as an alternative basis to grant summary judgment, does not apply to the underlying claim in this case.
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Jiminez v. Faccone, 98 So. 3d 621 (Fla. 2d DCA 2012)…eview is de novo, McGill v. Perez, 59 So. 3d 388, 389 (Fla. 2d DCA 2011), and in so reviewing, “we must ‘draw every inference in favor of the party against whom the summary judgment was entered,’ ” id. at 390 (quoting Galaxy Fireworks, Inc. v. Bush, 927 So. 2d 995, 996 (Fla. 2d DCA 2006)). - “Succinctly put, ‘[wjhen acting upon a motion for summary judgment, if the record raises the slightest doubt that material issues could be present, that doubt must be resolved against the movant and the motion for summary…
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Honorable Rick Scott v. Galaxy Fireworks, Inc., 111 So. 3d 898 (Fla. 2d DCA 2012)…court reversed that final order, concluding that summary judgment was improper because there remained a material issue of fact regarding the scope of the executive order’s limitation of transporting the fireworks. See Galaxy Fireworks, Inc. v. Bush, 927 So. 2d 995 (Fla. 2d DCA 2006). On remand, the trial court held a bench trial and determined that there had been a compensable taking and that the damages would be decided by jury trial. The parties, however, stipulated that the damages would be $1 million plus…
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Truman McGILL and Margo McGill v. Perez, 59 So. 3d 388 (Fla. 2d DCA 2011)…had erred by entering the roadway before allowing Mr. McGill’s truck to pass by. When reviewing a summary judgment, we must “draw every inference in favor of the party against whom the summary judgment was entered.” Galaxy Fireworks, Inc. v. Bush, 927 So. 2d 995, 996 (Fla. 2d DCA 2006). The presumption that the following driver in a motor vehicle accident is negligent can be rebutted when that driver “produces evidence which fairly and reasonably tends to show that the real fact is not as presumed.” Guile,…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Dep't OF Agric. & Consumer Servs. v. Polk, 568 So. 2d 35 (Fla. 1990)
- Grady Mack Kittrell v. State, 910 So. 2d 876 (Fla. 1st DCA 2005)
- Maggio v. Dep't OF Labor & Emp. Sec. & the Agency for Workforce Innovation, 910 So. 2d 876 (Fla. 2d DCA 2005)