Case Number: 3D16-959

Judge: Before SUAREZ, SALTER and LUCK, JJ. PER CURIAM

Court: FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA

Plaintiff's Attorney: Abigail Price-Williams, Miami-Dade County Attorney, and Joni A. Mosely and Sabrina Levin, Assistant County Attorneys

Defendant's Attorney: Pamela Beckham
Robert J. Beckham Jr.

Description: Chief Judge Rothenberg correctly described the summary judgment
evidence.
On August 24, 2012, Eli Salgado purchased a Miami-Dade County Park Foundation membership for $149. This membership included a coupon book containing several promotional items, including two tickets to the zoo, a 50% discount coupon for golf, and a coupon for the use of a park shelter without payment of the requisite rental fee. Along with Salgado’s membership and the coupon booklet, Salgado was given a copy of the Park’s rules and regulations to be followed when renting a facility at the Park. These rules contained a section regarding when permits and off-duty officers are required and provided notice to Salgado that it was his responsibility to obtain the correct permit(s) and to hire off-duty police officers under certain circumstances. For example, these rules provided that when a D.J., live music, or speakers are going to be used, the person renting the facility or hosting the event at the Park must obtain a broadcast permit and hire and pay for off-duty police officers. Depending on the type or size of the party or event, other permits are required, and again, Salgado must hire off-duty police officers to provide security for the event. Specifically, the rules and regulations provided that if Salgado was expecting over a certain number of guests, then he would be required to hire two off-duty police officers and obtain a special events permit. The rules and regulations additionally stated that the Park’s employees would not be responsible for providing any of these items.
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When Salgado rented a shelter at the Park for his September 22, 2012 birthday party, he simply asked to rent the shelter and used the free rental coupon contained in his membership coupon booklet. He did not advise anyone that he was going to hire a D.J., and he did not obtain any permits or hire any off-duty police officers. Instead, he procured two private security officers to provide security at the party.
The only Park employee present for this after-hours private party was Diogenes Martin, a part-time Park Service Aide, whose responsibilities were to clean the restrooms and the Park before and after an event and to keep the area clean and change the trash bags during the event. Also present was a teenage volunteer who was helping Martin that night. Victor Jenkins, the Goulds South Dade Zone Manager who is responsible for managing seventeen parks for Miami-Dade County Parks and Recreation, testified in his deposition that the County has only budgeted for twenty-seven park security officers to service all of the recreational facilities throughout the County. These officers are directed to mainly patrol the beaches and marinas on the weekends. Because the County does not provide security at these private parties and events, it requires the patron renting a park facility to contact the police department and hire offduty officers for certain events.
Martin testified in his deposition that he performed his duties as required on the night of the party. He made sure the restrooms and area were clean, the trash was properly disposed of, and the trash bags were changed when the cans became full. He explained that Salgado was celebrating his eighteenth birthday, and the party consisted of mostly sixteen-to-eighteen-year-olds who were eating, dancing, and just having a good time. Salgado’s parents were present, and there were also two large men wearing “Security” T-shirts present who appeared to be patrolling the area and providing security for the party. He did not see anyone using drugs, fighting, or having a confrontation with anyone. Everything was calm and everyone seemed to be having a good time when all of a sudden, at around 10:00 or 10:30 p.m., he heard shots fired. As soon as he realized that some of the kids had been shot, he called 911 and then called his supervisor.
Inga Portilla, a Park Manager, confirmed that Park Service Aides are only responsible for maintenance within the Park. They do
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not provide security, do not check to see if the renter has obtained the required permits, are not trained in crime prevention, and are not authorized to “police” the area. She also confirmed that after Salgado paid his membership fee, a booklet was sent to his house containing the rental coupon and a copy of the Park’s rules and regulations. These rules and regulations are also posted at the Park. Portilla explained that “once we rent the facility . . . we don’t have anything to do with direct involvement of the parties,” and that it was Salgado’s responsibility to follow the rules, obtain the necessary permits, and hire off-duty police officers if he was having a party that required offduty police officers, as “[w]e are not responsible for the party.”
Pozos presented no evidence to refute any of the above referenced evidence. The affidavit/statement provided by Salgado, the renter and host of the party, does not refute the testimony of the park employees or the physical evidence. Salgado did not dispute that he had received a copy of the Park’s rules and regulations related to rentals of the Park’s facilities. He merely states that when he rented the pavilion he was not advised that he needed to hire off-duty officers and that he did not recall if anyone had asked him how many people he expected would be attending the party.
Id. at *10-11 (omissions and alterations in original) (emphasis removed).2
2 The dissenting opinion says it is “puzzled” that we would quote Chief Judge Rothenberg’s summary of the facts. So as not to leave anyone puzzled, we explain why. The plaintiffs in Pozos and this case were shot on the same night, at the same place, at the same party, at the same time, and were represented by the same attorneys, who have brought the same claim, and made the same arguments against summary judgment, relying on materially identical evidence. Where one of our colleagues has succinctly, accurately, and painstakingly laid out the relevant summary judgment evidence for the sovereign immunity issue, there is no need to reinvent the wheel when a perfectly round shiny new one was laying around for us to use. See United States v. Stevens, 994 So. 2d 1062, 1068 (Fla. 2008) (“While we could ‘reinvent the wheel’ and set out our own analysis as to the application of the principles of these sections to the circumstances alleged here, we acknowledge that we could not improve upon the district court’s analysis. Because we agree with Judge Hurley’s analysis, we adopt the portion of his order regarding the application of these sections to the certified question . . . .”). We couldn’t have summarized the facts any better than Chief Judge Rothenberg did.
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DISCUSSION Chief Judge Rothenberg properly applied the summary judgment evidence to
the principles of sovereign immunity articulated by the Florida Supreme Court.
[E]ven where a duty is owed, sovereign immunity may bar an action for an alleged breach of that duty, see Pollock 882 So. 2d at 932-33; Henderson, 737 So. 2d at 535; Kaisner, 543 So. 2d at 734, because in Florida, “governmental immunity derives entirely from the doctrine of separation of powers, not from a duty of care or from any statutory basis.” Kaisner, 543 So. 2d at 737.
When addressing the test for determining when a governmental entity enjoys sovereign immunity, the Florida Supreme Court held “that the separation-of-powers provision present in article II, section 3 of the Florida Constitution requires that ‘certain [quasi-legislative] policy-making, planning or judgmental governmental functions cannot be the subject of traditional tort liability.’” Wallace, 3 So. 3d at 1053 (quoting Commercial Carrier Corp. v. Indian River Cnty., 371 So. 2d 1010, 1020 (Fla. 1979)). On the other hand, decisions made at the operational level – decisions or actions implementing policy, planning, or judgmental governmental functions – generally do not enjoy sovereign immunity. Commercial Carrier, 371 So. 2d at 1021. “Planning level functions are generally interpreted to be those requiring basic policy decisions, while operational level functions are those that implement policy.” Id. (footnote omitted).
While nearly every endeavor involves some level of discretion, it is the governmental quasi-legislative discretion exercised at the policy-making or planning level which is protected from tort liability. Wallace, 3 So. 3d at 1053; Yamuni, 529 So. 2d at 260. Thus, in addition to the five basic principles identified by the Florida Supreme Court in Trianon, which have been listed at the beginning of this analysis, the Court recognized that “there were areas of government activity where orthodox tort liability stops and the act of governing begins, . . . as well as the distinct principle of law . . . which makes not actionable in tort certain judgmental decisions of governmental authorities which are inherent in the act of governing.” Trianon, 468 So.2d at 918 (internal citations and quotation marks omitted). Further,
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“certain discretionary governmental functions remain immune from tort liability . . . because certain functions of coordinate branches of government may not be subjected to scrutiny by judge or jury as to the wisdom of their performance.” Id. (internal citations and quotation marks omitted). . . .
. . . .
[T]he unrefuted evidence supports the legal conclusion that the County made a discretionary policy/planning decision to allow patrons of its parks to rent its facilities for private parties or events. Relying on its legislative/permitting/licensing authority, the County enacted certain rules and regulations governing the rental and use of its parks and the park’s facilities. Based on the County’s limited resources, it exercised its discretion to assign only twenty-seven officers to the Parks and Recreation Department to service all of the parks, beaches, and County-owned recreational areas located throughout the county and to direct those officers to primarily patrol the public beaches and marinas on the weekends, rather than directing them to patrol and monitor private parties being held in public parks. The County, therefore, included certain restrictions and requirements within its enacted rules and regulations and rental agreements, which the party or event host was required to follow. Among other things, these rules and regulations required the renter to go to the police department and (1) obtain a broadcast permit if using a D.J., live music, or sound equipment; (2) obtain a special event permit if over 200 guests were expected to attend; and (3) hire off-duty police officers under each of these scenarios. The rules and regulations and the rental agreement specified that the County’s park employees would not be responsible for the failure to meet any of these requirements.
When Salgado purchased his Park membership, he was sent a copy of these rules and regulations. Salgado, however, did not abide by these rules and regulations when he used his free coupon to rent a pavilion for his birthday party. Although he had a D.J. and sound equipment at the party, he did not obtain a broadcast permit or hire off-duty police officers from the police department. Whether he was additionally required to obtain a special event permit and hire off-duty police officers based on the number of guests he expected to attend is
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unclear because the evidence does not reflect whether Salgado expected so many people to attend and whether there were more than 200 guests at the party. This issue is nevertheless irrelevant because, based on Salgado’s use of a D.J. and sound equipment, he was required to hire two off-duty police officers anyway. However, instead of obtaining the necessary permit(s) and hiring off-duty police officers, Salgado hired two private-duty security officers. . . .
. . . .
Because the County’s decisions were quasi-legislative discretionary policy or planning decisions it is sovereignly immune from suit and thus, it was entitled to summary judgment as a matter of law. This conclusion is supported by prior decisions from the Florida Supreme Court, this Court, and our sister courts.
For example, in Delgado v. City of Miami Beach, 518 So. 2d 968 (Fla. 3d DCA 1988), this Court affirmed the trial court’s order granting the City of Miami Beach's motion for summary judgment after concluding that the City of Miami Beach was protected from liability under the doctrine of sovereign immunity as a matter of law. Delgado was injured when someone in the crowd ignited fireworks which struck and burned Delgado’s leg while he was attending a concert and a fireworks display sponsored by the City of Miami Beach. Delgado claimed that the City of Miami Beach, which had sponsored the event, breached its duty by failing to prohibit the attendees from possessing and detonating their own fireworks. This Court, however, concluded that the City of Miami Beach’s “actions fell within the planning-level, discretionary function of government, for which no liability attaches.” Id. at 969. Specifically, this Court held that “[t]he manner in which a city, through its police officers, exercises discretionary authority to enforce compliance with the laws and protect the public safety, falls squarely within the city's power to govern. Accordingly, the city is protected under the doctrine of sovereign immunity.” Id. (citing Trianon, Commercial Carrier, and other cases).
As in Delgado, the County’s actions in the instant case – not assigning officers to patrol or be present at private parties or events held in its public parks, but to, instead, require those who rent its park
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facilities to obtain permits and hire off-duty officers under certain circumstances – was a discretionary planning and/or policy decision. It was a governmental decision made in the exercise of its discretionary authority regarding the manner in which compliance and enforcement of the law and the protection of the public would be effectuated. How the County notified those who rented its park facilities of their obligations and responsibilities was also a planning/policy discretionary governmental decision. Because parks such as Benito Juarez Park were “un-manned” parks with only parttime maintenance employees in attendance, the County, in the exercise of its discretion, put into place a policy requiring the County to notify each individual who purchased a Park membership or rented a Park facility by providing him/her with a copy of the Park’s rules and regulations. The unrefuted evidence in this case is that these rules and regulations were sent to the Salgado’s home along with his coupon book after he purchased his Park membership. Because these decisions fell squarely within the County’s power to govern, they are protected as a matter of law under the doctrine of sovereign immunity.
The decisions of the County regarding where and how to deploy its available manpower (sworn police officers) is a discretionary or planning function. And, as the Florida Supreme Court stated in Trianon, “under the constitutional doctrine of separation of powers, the judicial branch must not interfere with the discretionary functions of the legislative or executive branches of government absent a violation of constitutional or statutory rights.” Trianon, 468 So. 2d at 918. “While sovereign immunity is a silent issue here, we ought not lose sight of the fact that inherent in the right to exercise police powers is the right to determine strategy and tactics for the deployment of those powers.” Wong v. City of Miami, 237 So. 2d 132, 134 (Fla. 1970); see also Commercial Carrier, 371 So. 2d at 1020 (quoting Wong, 237 So. 2d at 134):
The sovereign authorities ought to be left free to exercise their discretion and choose the tactics deemed appropriate without worry over possible allegations of negligence. Here officials thought it best to withdraw their officers. Who can say whether or not the damage sustained by petitioners would have been more widespread if the officers had stayed . . . .
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Pozos, 2017 WL 621233, at *9-13 (some omissions and alterations in original).
We agree with and adopt Chief Judge Rothenberg’s analysis as our own.
We only add to her discussion to address two points in the dissenting opinion: (1)
its discussion of Sanchez’s claim; and (2) its reliance on City of Belle Glade v.
Woodson, 731 So. 2d 797 (Fla. 4th DCA 1999).
1. Sanchez’s Claim.
The dissenting opinion reads Sanchez’s negligence claim to include
violations of the park employees’ operational duties to keep track of the number of
party-goers, verify security measures, and shut down parties if they spiral out of
control. The dissenting opinion says that Sanchez’s claim does “not necessarily or
simply involve policy decisions on the allocation of County-directed police
officer,” but rather includes operational decisions to issue permits, close the park
after dark, and use warning signs.
Response to Motion for Summary Judgment. We read Sanchez’s claim as he
wrote and explained it. In his response to the county’s summary judgment motion,
Sanchez said he was “suing for negligent security.” Sanchez argued that county
procedures required “at least one off-duty police officer” at the party, and this set
the standard of care for the county. Sanchez contended the summary judgment
standard had been met “where there is expert evidence, the county admit[s] that
there should have been at least one off-duty police officer to provide security at the
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park, and the circumstances leading-up-to Sanchez’s injury are established by
proof.”
Hearing on Summary Judgment Motion. At the hearing on the county’s
summary judgment motion, Sanchez described the factual basis for his claim this
way:
There was a police officer needed at this place and the County park zone manager testified that off-duty police were required to deter crime and for safety and to be proactive. . . . Instead, there was just one part-time park service aid and his unpaid friends with no security training. Initial Brief. Sanchez reiterated in his initial brief that he “filed this negligence security action after he was shot during an event” at the park. “Sanchez sued for negligence security.” Sanchez described his “security expert” as
testifying “about the need for police at the event and the deterrent effect that police have.” “At least two off-duty officers should have been providing security according to the security expert. The record shows that the attack was both
foreseeable and preventable.” In the fact section of his brief, Sanchez focused on
the county’s duty to provide off-duty police officers at the party, and the
consequences to Sanchez and other party-goers by not providing them:
The county’s park manager admits that this event required at least one off-duty police officer to provide security. The county’s zone manager agrees that the park managers and the county employee at this event know when off-duty police are required to provide security. However, there were no off-duty police officers providing security at the party.
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Off-duty police officers provide much more effective security than private security guards who have no more authority than any ordinary citizen. The county acknowledges that off-duty police officers are needed to deter crime at park events and, “For safety and also to be proactive. When folks see officers they don’t do the normal stuff.” Reply Brief. In his reply brief, Sanchez again told the court the nature of his
claim. “Sanchez sued for negligent security,” he wrote.
Oral Argument. At oral argument, the question about the scope of
Sanchez’s negligence claim was put to Sanchez’s counsel. This is what he said:
The court: …. I’m trying to get to the heart of the claim. The negligence was not having off-duty police officers there, correct? Counsel: Say that again, you honor? The court: The negligence was not having off-duty police officers present at the party, correct? Counsel: Um, yes, your honor. . . . The court: …. Is that a fair summary of your claim? Counsel: Um, yes, your honor. . . .
Sanchez’s claim, as distilled by the time it got to this court, was not about
failing to close the park by dark or having no-trespass signs. His claim was not
about park employees violating their duties to keep track of party-goers and shut
the party down after it got too large. Sanchez’s claim was for negligent security.
The county, according to Sanchez, was required to provide off-duty police officers
at parties like this one, and did not. According to Sanchez’s security expert, it was
foreseeable that there would be criminal activity at the party, but it could have been
avoided had the county provided the off-duty officers.
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Sanchez’s negligent security claim that the county failed to provide off-duty
police officers must fail because the Florida Supreme Court and intermediate
appellate courts have long held that a municipality’s decision on where to allocate
its police resources is a planning level decision that is not subject to civil liability.
See Carter, 468 So. 2d at 957 (“The city has the right to set its priorities in
reference to law enforcement.”); Wong v. City of Miami, 237 So. 2d 132, 134 (Fla.
1970) (“[I]nherent in the right to exercise police powers is the right to determine
strategy and tactics for the deployment of those powers. . . . The sovereign
authorities ought to be left free to exercise their discretion and choose the tactics
deemed appropriate without worry over possible allegations of negligence.”);
White v. City of Waldo, 659 So. 2d 707, 712 (Fla. 1st DCA 1995) (“Appellant
cannot recover here on the theory that deputies should have been assigned to the
area north of the City of Waldo or have been close enough by to reach the scene
promptly. It was up to the sheriff’s office to decide how to allocate limited
resources. The dispatcher’s inability to send help when requested reflects
competing law enforcement needs. It was for the sheriff, not a jury, to assign
priorities.” (citation omitted)), cause dismissed sub nom. Hindery v. White, 666
So. 2d 901 (Fla. 1996); Ellmer v. City of St. Petersburg, 378 So. 2d 825, 827 (Fla.
2d DCA 1979) (“[W]e believe that the ‘negligence’ attributed to the city in this
case falls within the scope of its discretionary planning level function. The alleged
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failure to warn of riot conditions was but an aspect of the larger responsibility of
providing police protection from the riot and restoring law and order to the city
streets. . . . Decisions are also necessary concerning how to employ available
manpower to effectuate the warnings while at the same time maintain sufficient
forces to deal directly with the rioters and contain the spread of the riot to other
areas of the community.”); Higdon v. Metro. Dade Cty., 446 So. 2d 203, 208 (Fla.
3d DCA 1984) (same).
In Carter, a dog bit a child and severely injured him after escaping from
private property. Carter, 468 So. 2d at 956. The city knew about the dog but did
not enforce its dog control ordinance to impound the dog after prior biting
complaints. Id. at 956-57. The boy’s mother sued the city for negligence because
the city knew about the dangerous dog, had inspectors on the payroll, but did
nothing. Id. at 956. The Florida Supreme Court agreed that the city was immune
because
[a] government must have the flexibility to set enforcement priorities on its police power ordinances in line with its budgetary constraints. Without the ability to make such choices a government must either pay the high cost of total enforcement or forego the exercise of its police power. Neither option serves the public interest.
Deciding which laws are proper and should be enacted is a legislative function. How and in what manner those laws are enforced is, in most instances, a judgmental decision of the executive branch. The judicial branch should not trespass into the decisional process of either. . . .
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. . . . The amount of resources and personnel to be committed to the enforcement of this ordinance was a policy decision of the city. The city has the right to set its priorities in reference to law enforcement.
Id. at 957.
Similarly, in Wong, neighborhood business owners were worried about
violence overflowing from a nearby protest rally, and asked the city police to
protect their businesses from rioting. Wong, 237 So. 2d at 133. The city police
initially honored their request, but as the protest rally wore on, officers pulled out
at the instruction of the sheriff. Id. The neighborhood stores were “plunder[ed],”
resulting in $100,000 worth of damages. Id. The business owners sued the city
because it knew about the protest and the likelihood of damages, and still it pulled
its police officers. Id. The Supreme Court agreed that the city was immune
because “at common law a governmental unit had no responsibility for damage
inflicted upon citizens or property as a result of a riot . . . . [I]nherent in the right
to exercise police powers is the right to determine strategy and tactics for the
deployment of those powers.” Id. at 133-34. 3
3 The dissenting opinion’s fifth footnote, again, characterizes Sanchez’s claim as the county’s failure to “monitor and enforce the agreement between the Parks Department and the event sponsor.” This is not Sanchez’s claim. Sanchez’s claim is exactly what he said it was in his trial court pleadings, appellate briefs, and oral arguments – he claims the county was negligent in securing Benito Juarez park because it knew about the party and still failed to have off-duty police officers. We have “assume[d]” nothing because we have relied on, and quoted extensively from, Sanchez’s own words in describing his claim. (And not once in this opinion – not a single time – have we used the term “on-duty.”) Sanchez, and the dissenting opinion, would hold the county liable any time it
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Here, it was undisputed that the county had allocated only twenty-seven
officers to the parks department, and of those twenty-seven, they were assigned
primarily to patrol the public beaches and marinas. As in Carter and Wong, the
county made a strategic decision in allocating its law enforcement personnel to
dedicate only a few dozen officers to its parks, rather than other high crime areas in
the county, and to prioritize beach-and-marina parks over other ones. The county’s
decision to allocate its scarce law enforcement resources to one area of the county
over another is the kind of discretionary, planning, and policy decision that is
protected by sovereign immunity. To hold otherwise would be to require the
county to allocate police officers to park birthday parties, to the exclusion of other
high-crime or high-priority areas, or face millions of dollars in potential liability.
Such a decision would violate the constitutional principle that policy-making,
planning, and judgment calls by the government are reserved to the executive and
legislative branches, and cannot be second-guessed and picked-over by the courts
through traditional tort liability. See Wallace, 3 So. 3d at 1053 (“[T]he separation
of-powers provision present in article II, section 3 of the Florida Constitution
requires that ‘certain [quasi-legislative] policy-making, planning or judgmental
did not have law enforcement officers at a DJ’ed party at a county park. But Carter, Wong, White, Ellmer and Higdon hold that a municipality’s decision on how to employ its law enforcement resources is a policy/planning decision that is entitled to sovereign immunity, and the failure to have officers on the scene where a crime occurs – even if it was foreseeable that a crime would occur – is not actionable.
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governmental functions cannot be the subject of traditional tort liability.’”
(alteration in original) (citation omitted)); Carter, 468 So. 2d at 957 (“How and in
what manner those laws are enforced is, in most instances, a judgmental decision
of the executive branch. The judicial branch should not trespass into the decisional
process of either.”).
2. City of Belle Glade v. Woodson
We also part from the dissenting opinion in its conclusion that this case is
like Woodson. In Woodson, a shooting occurred at a city civic center “where a
large crowd of youths had gathered to attend an unauthorized dance” and “the City
knew from [] experience that such dances were dangerous events generally
involving disorderly conduct.” Woodson, 731 So. 2d at 797. The plaintiff sued the
city for wrongful death and personal injury. The city argued that “enforcing the
law and protecting public safety is a Category II governmental function” under
Trianon; however, the Fourth District agreed with the plaintiff and found that
maintaining and operating the civic center was a Category III function. Id. at 798.
The court explained: “We agree with the plaintiffs that the City, in maintaining
and operating the Civic Center, falls within the Trianon Park Category III. Thus, it
does not enjoy sovereign immunity but rather has the same common law duty as a
private person to properly maintain and operate the property.” Id.
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Woodson, for two reasons, does not apply here. First, the Woodson court
conflated its discussion of duty with its determination of sovereign immunity. The
Woodson court found that the municipal government was not immune because it
had a duty to maintain and operate the civic center under Trianon. But the Florida
Supreme Court has warned that one does not necessarily follow the other.
[B]rief clarification is necessary concerning the differences between a lack of liability under established tort law and the presence of sovereign immunity. When addressing the issue of governmental liability under Florida law, we have repeatedly recognized that a duty analysis is conceptually distinct from any later inquiry regarding whether the governmental entity remains sovereignly immune from suit notwithstanding the legislative waiver present in section 768.28, Florida Statutes.
Wallace v. Dean, 3 So. 3d 1035, 1044 (Fla. 2009) (footnote omitted) (emphasis in
original). The Trianon categories discussed by the Woodson court are “a ‘rough,’
general guide concerning the type of activities that either support or fail to support
the recognition of a duty of care between a governmental actor and an alleged tort
victim.” Id. at 1047 (emphasis added) (citing Trianon, 468 So. 2d at 919). The
Trianon categories do not, as the Woodson court decided they do, answer the
sovereign immunity question. “[I]f a duty of care is owed, it must then be
determined whether sovereign immunity bars an action for an alleged breach of
that duty.” Pollock v. Fla. Dep’t of Highway Patrol, 882 So. 2d 928, 933 (Fla.
2004).
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To determine whether a government function was entitled to sovereign
immunity, we ask whether it was a policy-making planning or judgmental function,
or an operational one. “[C]ertain [quasi-legislative] policy-making, planning or
judgmental governmental functions cannot be the subject of traditional tort
liability.” Wallace, 3 So. 3d at 1053 (alteration in original) (quotation omitted).
“Operational level functions, on the other hand, merely implement predetermined
policy and may subject the government entity to tort liability.” Carter, 468 So. 2d
at 956.
The Woodson court, in the single paragraph discussing sovereign immunity,
did not analyze whether the municipal government made a planning or operational
decision after it found there was a duty. The court assumed there was no sovereign
immunity because the city had a duty to operate and maintain the civic center.
This was contrary to the Florida Supreme Court’s instruction to review duty and
sovereign immunity separately and independently, and therefore, the decision is
unhelpful to the sovereign immunity question presented in this case.
Even if Woodson had separately analyzed the sovereign immunity issue, it
would be unhelpful because the immunity question is different in this case. In
Woodson, the municipal government knew there were parties at the civic center
but did not authorize them and provided no security. The issue for the Woodson
court was whether the municipal government was immune from liability even
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though it knew about the unauthorized party, let it happen, and provided no
security in any form for the safety of its known visitors.
This does not answer the far harder and narrower immunity question in this
case. Here, the county authorized the party with the condition that the person
throwing it had to provide security. Two security guards and a county parks
employee were at the park the night of the shooting. Unlike in Woodson, the
county did not ignore that there were parties in the park, and did not fail to provide
security for partygoers. The issue here is not, as in Woodson, the failure to provide
security altogether. Rather, the issue here is whether the county’s failure to
allocate off-duty police officers, in addition to requiring security as a condition of
the permit and having security guards and a county employee at the party, was a
planning (immune) or operational (not immune) decision. There was no evidence
in Woodson, as there is here, that law-enforcement resources were scarce and the
municipality had made a policy decision about the allocation of those resources.
Whatever the single paragraph in Woodson said about sovereign immunity at the
Belle Glade civic center, it did not decide the issue in this case.4

Outcome: This is a tragic case. Two young men were shot while attending a party.
But nothing in our decision should be read as leaving Sanchez and Pozos without a remedy. The shooters, the party organizer, the security guards, and some others may be responsible for their negligent and willful actions. We conclude only that the county is shielded from liability for not allocating off-duty police officers, and only because it has sovereign immunity that protects its policy and planning decisions about where to allocate its limited police resources. The trial court correctly concluded the county was entitled to sovereign immunity, and we affirm the summary judgment in its favor.
Affirmed.

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