Lamb v. City of Tampa

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT ROBERT LAMB, Appellant, v. CITY OF TAMPA, Appellee. No. 2D2025-0635 November 13, 2026 Appeal from the Public Employees Relations Commission. Sean M. McFadden of Merkle & Magri, P.A., Tampa for Appellant. Toyin Aina-Hargrett, City of Tampa; and Thomas M. Gonzalez of GrayRobinson, P.A., Tampa, for Appellee. ATKINSON, Judge. Robert Lamb, a City of Tampa police officer and wartime veteran, appeals the final order issued by the Public Employees Relations Commission (PERC) denying Mr. Lamb's complaint that the City of Tampa violated section 295.09(1)(a), Florida Statutes (2024), by failing to afford him veterans' preference in promotion to the position of police corporal/detective despite his high overall scores on both the 2021 and 2023 eligibility lists. Because Mr. Lamb was entitled to absolute preference under the statute, we reverse and remand with instructions to PERC to order the City of Tampa to promote Mr. Lamb to corporal/detective. Background Promotions in the City of Tampa's police department "from the classification of Police Officer to Detective/Corporal" are governed by Article 35 of the collective bargaining agreement between the City of Tampa and the Tampa Police Benevolent Association, Inc. Article 35.1 provides that all promotions within the Tampa Police Department "shall be accomplished in the manner provided in the Civil Service Law, rules and regulations of the City of Tampa[,] which require that an employee be certified on the eligibility list." This eligibility list is produced by taking a candidate's passing score on the promotional examination and tallying up additional points awarded for seniority, education, and veterans' preference. The promotional examination is described in Article 35.3 as consisting of one hundred questions and is "given every two (2) years or prior to the exhaustion or expiration of the current eligibility list . . . ." Article 35.4, entitled "Eligibility Lists," states that "[w]hen a Police Detective/Corporal vacancy is to be filled by promotion, the City [of Tampa] shall certify 50% of the eligibles ranking highest plus two additional names for each additional vacancy." Section 504.10 of the Tampa Standard Operating Procedures (SOP) describes the promotional procedure in relevant part as follows: A. A list of eligible candidates for promotion to each rank will be established periodically by the Employment Services Division. B. Whenever a position having the rank of detective [or] corporal . . . becomes available for promotion of personnel at the discretion of the Chief, a certified list of eligible candidates will be obtained by the Personnel Unit. 2  C. The Personnel Unit will provide the [C]hief with the names of those candidates from the certified list who meet the minimum requirements for the rank as established by this SOP. The candidates will be listed in the same order as they appear on the certified list. D. The [C]hief will select the employee to be promoted. While it is from the certified eligibility list that the Chief of Police selects the employees to be promoted, the Chief of Police testified that the candidates' scores on the list are "not a factor" in determining who is "the most qualified" candidate on the certified eligibility list. Instead, the Chief of Police and the executive staff "go through the entire list," taking into consideration the candidates' "training, knowledge, experience, and tenure," as well as their "discipline history," "education," and "attitude." Each member of the executive staff lists on index cards their "top five candidates" for promotion to each vacant position. Those votes are counted by the Chief of Police's secretary, with the Chief of Police making the final, subjective decision regarding who gets promoted. The record reflects that the eligibility list produced in 2021 was ranked from "1" to "151," from the highest to lowest cumulative final scores. On this list, Mr. Lamb was tied for the second highest rank. The eligibility list produced in 2023 ordered the candidates from the highest scorer to the lowest scorer. On this 2023 list, Mr. Lamb was the first candidate, with the highest final score. Although numerous individuals with lower scores on both the 2021 and 2023 eligibility lists were promoted, Mr. Lamb was not. Mr. Lamb filed a Veterans' Preference Complaint with the Florida Department of Veterans' Affairs concerning the City of Tampa's failure to afford him veterans' preference when he was not selected for promotion in 2021 or 2023. He later filed a petition for hearing before PERC based 3 on the City of Tampa's failure to resolve his veterans' preference allegations. During the PERC hearing, Tampa Police Department command staff testified that Mr. Lamb had been passed over for promotion in part because of his "extensive and egregious" disciplinary history. The hearing officer found that based on his disciplinary history and his insufficient professional development as a police officer, Mr. Lamb was not more qualified than the candidates who were promoted ahead of him. The hearing officer's pertinent factual findings included that "[Mr.] Lamb's disciplinary history stemming from use of force violations [was] considered especially serious"; that Mr. Lamb had an "abrasive" attitude and concerning interactions with the public; and that "[t]he command staff would like to see [Mr.] Lamb work to further develop his law enforcement skills" by volunteering for temporary duty assignments, requesting to be transferred to different units, or taking general leadership classes. The hearing officer's recommended order concluded that the City of Tampa did not violate veterans' preference laws because the candidates promoted were more qualified than Mr. Lamb. Mr. Lamb filed exceptions to the hearing officer's recommended order, arguing in relevant part that the recommended order conflicted with section 295.09(1)(a), which "entitled [Mr. Lamb] to absolute preference over those who appear in an equal or lesser position on the promotion eligibility list." The PERC final order rejected Mr. Lamb's understanding of the statute: The text of section 295.09(1)(a) references the promotion of a veteran based on his or her "position on the promotional register." More specifically, it directs that upon successful passage of an examination for the promotional position, the eligible veteran be promoted ahead of those who appear in an equal or lesser position on the promotional register. While 4  "promotional register" is not defined in the Act or the related administrative rules, section 295.09(1)(a) is imbued with the notion that a rank order-type promotional register is utilized to afford the preference described in the provision. Such a procedure is not present in this case. Here, the City's hybrid promotion process included a numeric-based written examination for the initial qualifying stage and a non-numeric-based process for the final selection stage. The examination [Mr.] Lamb underwent served the City's vetting purposes to determine which employees would be included on the certified list of eligible candidates. His final score from this first portion of the process, based on a combination of his examination score and points for education, seniority, and veteran's preference, qualified him to be on the certified eligibility list. It is clear from the record that examination scores alone did not determine who ultimately would be selected for a promotion. Rather, the decision of who to promote was made separately from the examination, based on consideration of other factors, such as work performance, disciplinary history, leadership traits, training, and initiative. And that final determination did not result from a numerical score or a particular position on a promotional register. There is no legal basis that supports [Mr.] Lamb's argument that he was entitled to an absolute preference based on the City's mere utilization of an examination as part of its hybrid promotion process. (Footnotes omitted.) Discussion Mr. Lamb argues that by using a promotional examination in conjunction with preference points to create a ranked list of eligible candidates for promotion, the City of Tampa produced a promotional register entitling him to promotion ahead of all candidates in an equal or lesser position on the register pursuant to section 295.09(1)(a). Thus, he argues, PERC's finding that "[t]here is no legal basis that supports [Mr.] Lamb's argument that he was entitled to an absolute preference based on 5 the City's mere utilization of an examination as part of its hybrid promotion process" was erroneous. We agree that the City of Tampa violated section 295.09 by promoting individuals appearing in lesser positions on the promotional register ahead of Mr. Lamb. We review PERC's legal conclusions de novo. Sch. Dist. of Polk Cnty. v. Polk Educ. Ass'n, 100 So. 3d 11, 14–15 (Fla. 2d DCA 2011) (quoting Beardslee v. Fla. Elections Comm'n, 962 So. 2d 390, 391 (Fla. 5th DCA 2007)). "Statutory interpretation raises an issue of law, and we review the trial court's ruling de novo." Braine v. State, 255 So. 3d 470, 471 (Fla. 2d DCA 2018) (quoting Wegner v. State, 928 So. 2d 436, 438 (Fla. 2d DCA 2006)). "A statute's 'language should be given its plain and ordinary meaning,' " which "is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole." Gessner v. S. Co., 435 So. 3d 8, 14 (Fla. 2026) (first quoting Somers v. United States, 355 So. 3d 887, 891 (Fla. 2022); and then quoting Conage v. United States, 346 So. 3d 594, 598 (Fla. 2022)). "The [S]tate and its political subdivisions shall give preference in appointment and retention in positions of employment to . . . [a] wartime veteran as defined in s. 1.01(14), who has served at least 1 day during a wartime period." § 295.07(1)(c). An individual entitled to veterans' preference must also be awarded preference in promotion and be promoted ahead of all others who are as well qualified or less qualified for the position. When an examination for promotion is used, such person must be awarded preference points, as provided in s. 295.08, and be promoted ahead of all those who appear in an equal or lesser position on the promotional register, provided that he or she first successfully passes the examination for the promotional position. 6 § 295.09(1)(a). The parties do not dispute that Mr. Lamb is a "wartime veteran." See § 1.01(14)(h), Fla. Stat. (2024). The promotional examination described in Article 35.3, consisting of one hundred questions, was "[a] written or proficiency assessment of an applicant's knowledge, skills, and abilities" that "result[ed] in a numerical score and by which applicants are determined eligible for consideration for a specific position," Fla. Admin. Code R. 55A-7.003(9) (2024), in Mr. Lamb's case, the position of corporal/detective. Mr. Lamb could not have been placed on the certified eligibility list without this examination and his resulting score. The term "promotional register" being undefined by chapter 295 and the Florida Administrative Code, dictionaries can inform the question of what is the ordinary meaning of the term. See Somers v. United States, 355 So. 3d 887, 891 (Fla. 2022) ("When considering the [plain] meaning of terms used in a statute, this Court looks first to the terms' ordinary definitions[, which] . . . may be derived from dictionaries." (alterations in original) (quoting Debaun v. State, 213 So. 3d 747, 751 (Fla. 2017))). Black's Law Dictionary defines register in relevant part as " [a]n official list of the names of people, companies, etc.; esp., a book containing such a list." Register, Black's Law Dictionary (12th ed. 2024); see also Register, American Heritage Dictionary (5th ed. 2011) ("A formal or official recording of items, names, or actions."). The eligibility list upon which Mr. Lamb's name appeared tied for the second rank in 2021 and at the top spot in 2023 was, indeed, "[a]n official list of the names" of the candidates eligible to be considered 7 for promotion, as only individuals named on that list could be promoted. 1 See Register, Black's Law Dictionary. Based on the ordinary meaning of the statutory language in context, it is evident that an examination for promotion was used in the promotional process. Section 295.09(1)(a) states that "[w]hen an examination for promotion is used"—not when such an examination is dispositive or is determinative, but simply when it is used—"such person must be awarded preference points, as provided in s. 295.08, and be promoted ahead of all those who appear in an equal or lesser position on the promotional register, provided that he or she first successfully passes the examination for the promotional position." See § 295.09(1)(a). The statute presumes that once an examination for promotion is used, there will be a promotional register. See id. ("When an examination for promotion is used, such person must . . . be promoted ahead of all those who appear in an equal or lesser position on the promotional register . . . ." (emphasis added)). The language of the statute, then, indicates that a candidate's position on the promotional register must be dispositive of who gets promoted; it is enough that "an examination for promotion [wa]s used," which then gives rise to an obligation under section 295.09(1)(a) to promote qualified veterans as prescribed by the statute off of the resulting promotional register. Put another way, if the City of Tampa uses an examination for the purpose of deciding whom to promote, it must use the examination to produce a promotional register 1 In the findings of fact section of the hearing officer's recommended order, the hearing officer stated that "[w]hen a corporal/detective vacancy is to be filled by promotion, the City pulls the top 50% from the promotional list plus two additional names for each additional vacancy." (Emphasis added.) 8 ranked in such a way to allow the City of Tampa to promote a qualifying individual against all those who scored in an equal or lesser position. A necessary premise of the City of Tampa's position—and the PERC's rationale—is that the statute is only applicable if a hiring entity utilizes an examination in a manner that allows for a promotional register based on the examination performance by which candidates are ranked such that a veteran can be promoted ahead of those in an equal or lesser position. Under its promotional system, the City of Tampa's utilization of an examination does not produce a promotional register of the type and purpose that results in a ranking that is dispositive of the promotional decision; rather, its examination is a component of a system that creates a register used as a shortlist from which the ultimate decisionmaker has the discretion to pick without regard to ranking or examination score. Thus, the argument goes, section 295.09(1)(a) does not apply such that a veteran such as Mr. Lamb must "be promoted ahead of all those" on the resulting "promotional register" ranked "in an equal or lesser position." In essence, according to the City of Tampa, because its use of an examination does not result in a ranking that is dispositive of the promotional outcome, the statutory mandate is inapplicable. The City's reading of the statute is not supported by the text. The mandate to promote a veteran ahead of all those appearing in equal or lesser positions on the promotional register is not contingent on how a hiring entity decides to use an examination for promotion. The mandate unqualifiedly applies to all circumstances in which "an examination for promotion is used." See § 295.09(1)(a). Failing to utilize the examination in such a way that produces a promotional register that allows—and requires—the ultimate decisionmaker to promote a qualifying veteran 9 ahead of all those appearing in an equal or lesser position on such register does not absolve the hiring entity from the dictates of the statute; to the contrary, it results in a violation of the dictates of the statute. In other words, in order to give effect to the language of the statute, it can only be understood that its mandate is applicable any time a hiring entity utilizes an examination for promotion and that it requires the hiring entity to utilize an examination for promotion in a manner that allows for a promotional register based on the examination performance, on which candidates are ranked such that a veteran can be promoted ahead of those in an equal or lesser position. See § 295.09(1)(a) ("When an examination for promotion is used, such person must be . . . promoted ahead of all those who appear in an equal or lesser position on the promotional register . . . ." (emphasis added)); see also Lab. Corp. of Am. v. Davis, 339 So. 3d 318, 323 (Fla. 2022) ("In interpreting a statute, our task is to give effect to the words that the legislature has employed in the statutory text.").2 As a wartime veteran, Mr. Lamb should have been "awarded preference in promotion and be[en] promoted ahead of all others who [were] as well qualified or less qualified for the position." See § 295.09(1)(a). And because an examination for promotion was used by the City of Tampa, Mr. Lamb should have been "promoted ahead of all those who appear[ed] in an equal or lesser position on the promotional 2 This court's decision does not reach the question of whether—and therefore does not exclude the possibility that—a hiring entity could comply with the veterans' preference statute and still utilize the criteria it wanted—in addition to examination performance—such as work performance, disciplinary history, leadership traits, training, and initiative—to determine applicants' eligibility for promotion or rank them on the promotional registry. 10 register" that was produced. See id. By promoting candidates ranked lower than Mr. Lamb on the eligibility lists, the City of Tampa violated section 295.09. We therefore reverse and remand with instructions to PERC to order the City of Tampa to promote Mr. Lamb to corporal/detective. Reversed and remanded with instructions. SLEET, J., Concurs. GUARD, J., Concurs with opinion. GUARD, Judge, Concurring. I agree with the majority opinion fully. I write the following to emphasize my additional views and observations regarding this case. I. For two hundred fifty years, men and women have answered this nation's call whenever freedom and the American way of life have been threatened. Those men and women have willingly placed their lives on hold, left their loved ones, endured depravations, suffered grievous wounds, and some have given what Abraham Lincoln termed their "last full measure of devotion." Abraham Lincoln, Address Delivered at the Dedication of the Cemetery at Gettysburg (Nov. 19, 1863), https://www.abrahamlincolnonline.org/lincoln/speeches/gettysburg.ht m (last visited Nov. 2, 2026). In response to those sacrifices, both the United States government and the State of Florida have enacted veterans' preferences. 5 U.S.C. § 3309; §§ 295.07-.09, Fla. Stat. (2023). Veterans' preferences, like the one at issue, are nothing new. Similar veterans' preferences have existed since the United States Civil 11 War. The first veterans' preference provided authority for the creation of rules preferring the hiring of disabled veterans who had been honorably discharged for certain federal governmental jobs. A Resolution to Encourage the Employment of Disabled and Discharged Soldiers, Res. No. 27, 38th Cong., 13 Stat. 571 (1865). Toward the end of World War I, veterans' preferences were expanded to all veterans as well as widows and wives of injured veterans for certain governmental roles. An Act to Provide for the Fourteenth and Subsequent Decennial Censuses, Pub. L. No. 65-325, 40 Stat. 1293 (1917). And, yet again, veterans' preferences were expanded in the wake of World War II with the enactment of the Veterans' Preference Act of 1944. Pub. L. No. 78-359, 58 Stat. 387 (1944). Now federal law adds veteran preference points to passing civil service examination scores to determine a person's rating for employment related decisions. 5 U.S.C. § 3309. Florida has also had a long history of veterans' preferences. Florida enacted its first veterans' preference in 1947. Ch. 24201, § 3, Laws of Fla. (1947). The language at issue was enacted in 1977. Ch. 77-422, §1, Laws of Fla. (1977). Since then, the Florida Legislature has added or modified Florida's veterans' preference laws at least six times. See ch. 78-372, § 2, Laws of Fla. (1978); ch. 80-370, § 2, Laws of Fla. (1980); ch. 89-323, § 3, Laws of Fla. (1989); ch. 95-148, § 250, Laws of Fla. (1995); ch. 99-13, § 81 (1999); ch. 2021-57, § 5, Laws of Fla. (2021). More than seventy years ago, the Florida Supreme Court interpreted an earlier version of the statute at issue as justified as a "reward [for] those who served their country in time of need" and as "a recognition of the qualities and traits developed by military service which tend to make of veterans superior public servants." Yates v. Rezeau, 62 So. 2d 726, 727 (Fla. 1952). In interpreting the predecessor to section 295.09, our 12 supreme court warned that in interpreting such enactments "[p]reference to veterans must be a reality. It cannot be made illusory or a mere gesture." Id. (quoting Opinion of the Justices, 85 N.E.2d 238, 245 (Mass. 1949)). II. Master Sergeant Lamb served this country honorably and with distinction for more than twenty years. He continues his service to this day. He led, as a noncommissioned officer, over two hundred men and women at a time conducting critical missions supporting our nation's military operations abroad. He has been activated and deployed by the United States Army repeatedly. He has received multiple commendations for his service. Given his experience and the actual duties of a corporal with the City of Tampa Police Department (Department), one would think that Master Sergeant Lamb would be the exact type of person who the Department would want to promote. A. As stated in the majority's opinion, the statute in this case is clear. Lamb must be promoted because the City of Tampa (City) "used" an examination and Lamb had a higher score than others it promoted. § 295.09(1)(a), Fla. Stat. (2024). Neither the City's collective bargaining agreement nor the Department's regulations can change the preference put in place by the legislature or justify a departure. This was not a close case or a particularly difficult interpretive issue. The City confirmed our construction by its conduct after it first learned of Lamb's complaint. In July 2023, after the police union first raised Lamb's complaint, the City changed how it formatted its "eligibility list." The City went from providing its eligibility list in rank order with scores to the command staff to an alphabetized list with no scores. The 13 only reason to do this is if the City knew the statute applied to its process. There would be no reason to remove the scores or scramble the order of names if the statute did not apply to the City's process and the City did not realize it. Yet the City inexplicably continued this case and likely its course violating state law. B. The City's own interpretation of the statute does not save the Department's promotion process from violating the veteran's preference law, even if I were inclined to accept it. Section 295.09 relevant to promotions reads: Such person must also be awarded preference in promotion and be promoted ahead of all others who are as well qualified or less qualified for the position. When an examination for promotion is used, such person must be awarded preference points, as provided in s. 295.08, and be promoted ahead of all those who appear in an equal or lesser position on the promotional register, provided that he or she first successfully passes the examination for the promotional position. § 295.09(1)(a), Fla. Stat. Under the City's construction, you can have an examination and not trigger the promotion obligation if you do not have a "promotional register." Even if the City were correct that use of an examination was not the threshold condition of the second sentence of that section, the requirement contained in the first sentence of that section is still applicable to the City's promotional process. Id. That sentence is not conditional and places two obligations on the City: (1) the veteran must "be awarded preference in promotion;" and (2) the veteran must "be promoted ahead of all others who are as well qualified or less qualified for the position." Id. The "and" between those two obligations normally requires performance of both obligations. See, e.g., Fla. Birth- Related Neurological Inj. Comp. Ass'n v. Fla. Div. of Admin. Hrgs., 686 So. 14 2d 1349, 1355 (Fla. 1997) (concluding that "and" should be interpreted as a conjunction as a matter of statutory interpretation unless it causes "unreasonable, absurd results and thus defeat[s] the legislature's intent"); see also Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 116-19 (2012) (detailing the conjunctive/disjunctive cannon). The City contends that section 295.09 only required it to give Master Sergeant Lamb preference when eligibility was determined. The statute suggests otherwise. The plain language of that section reads that "[s]uch person must also be awarded preference in promotion." § 295.09(1)(a). There is nothing conditional in that language suggesting that the preference obligation is in any way limited to only one stage, phase, part, or subpart of the promotion process. Reading section 295.09 to require preference at each stage, phase, part, or subpart is confirmed when that section is taken in context with other parts of chapter 295. Conage v. United States, 346 So. 3d 594, 598-600 (Fla. 2022) (stating that in statutory language should be interpreted "by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole") (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997)). For example, in section 295.07(3), Florida Statutes (2023), the legislature granted the Department of Veterans' Affairs authority to promulgate rules. In that provision, it required the department "to ensure that veterans are given special consideration at each step of the employment selection process." § 295.07(3), Fla. Stat. (emphasis added). Further, while only persuasive, the actual rules promulgated by the Department of Veterans' Affairs require local governments to give preference at each phase, part, or stage. Fla. Admin Code R. 55A-7.011 (2022) (stating that 15 the preference applies "[a]t each stage of the hiring process"); Fla. Admin. Code R. 55A-70111 (2022) ("When a numerically based selection process is not used, Rule 55A-7.011, F.A.C., applies."). Putting aside that Master Sergeant Lamb was never promoted despite being either second or first on the promotional register, the testimony at the hearing revealed that Master Sergeant Lamb did not receive a preference at every stage of the City's promotion process. Chief Bercaw testified that Master Sergeant Lamb was provided a preference when the eligibility list was created and was only subject to a further preference at the command staff meeting if there was a tie. Chief Bercaw also testified that a police officer's place on the eligibility list had no relevance at the command staff meeting. In other words, being ranked first or second on the promotional register gave Master Sergeant Lamb no preference at the command staff meeting. Chief Bercaw's proposed application of the statute conflates the preference obligation with the promotion obligation into one single obligation. That is inconsistent with the section's plain language. The other senior Department officers who testified also admitted that there was no preference at the command staff meeting. Major Messmer testified that Master Sergeant Lamb's place on the eligibility list meant effectively nothing at the command staff stage and that he only gave preference to a veteran at that stage if the military service was law enforcement related. Major DeFelice was equivocal on whether, and to what extent, a preference was given at the command staff stage. Almost more troubling, Major DeFelice seemed to place veterans at a disadvantage when it came to promotion, testifying that veterans had to make the most of their opportunities when they were not deployed. 16 Under no construction of section 295.09 should service to this country be a detriment in government employment decisions. All three of the Department's most senior leaders that testified evidently believe experience leading American men and women in hostile and dangerous environments or in harm's way is irrelevant to supervising police officers. Such a suggestion is not only illogical, but it directly conflicts with Florida law. Because none of the three senior Department leaders who testified at the hearing gave Master Sergeant Lamb a preference at the command staff stage, I would reverse the Public Employee Relations Commission's decision, even if I agreed with the City's construction of the statute. III. The glaring problem here is how Master Sergeant Lamb has been treated by the command staff of the Department. The best I can decipher is that he has been treated that way because Department leadership wants to preserve a promotion system akin to a high school popularity contest. Such a system is not what you would expect from an organization protecting the third largest city in Florida. Such a system is not what you would expect from a city or department that purports to operate under civil service rules. The bulk of the record contains the disciplinary records of multiple individuals whom the Department promoted over Master Sergeant Lamb. Three senior Department leaders contorted their testimony to justify why those violations are not as bad as Master Sergeant Lamb's past violations. Somehow serious violations, including the possibility of an officer committing a crime, were less severe than Master Sergeant Lamb's violations. Serious violations that resulted in twenty-one-day or eight-day suspensions were less severe than Master Sergeant Lamb's single-day suspension for his violations. I 17 am not making light of the seriousness of the violations to which Master Sergeant Lamb was punished. I question whether evading veterans' preference laws to perpetuate a promotion system based on who is liked more by senior leadership is worth potentially harming the Department's credibility, professionalism, or reputation. If we condoned what the City and Department did here, we would be depriving our veterans of a reward for their selfless service to this country and reducing the statutorily required preference to a mere illusory gesture contrary to what our supreme court mandated some seventy years ago. Yates, 62 So. 2d at 727 (quoting Opinion of the Justices, 85 N.E.2d 238, 245 (Mass. 1949)). I decline to do so. Because I agree that the City violated section 295.09, Florida Statutes, I concur. Opinion subject to revision prior to official publication. 18