Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT TALBOT, LLC, a Florida limited liability company, Appellant v. CITY OF TAMPA, a Florida municipal corporation; and 1704 17TH STREET VENTURE, LLC, a Florida limited liability company, Appellees. No. 2D2025-1729 September 25, 2026 Appeal from the Circuit Court for Hillsborough County; Christine A. Marlewski, Judge. Luke Lirot of Luke Charles Lirot, P.A., Clearwater; and Candice Colucci of Colucci Law Group, PLLC, Clearwater, for Appellant. Scott Steady, City Attorney, and Mourama S. Saint-Fleur, Assistant City Attorney, Tampa, for Appellee City of Tampa, a Florida municipal corporation. Shane T. Costello and A. Evan Dix of Hill, Ward & Henderson, P.A., Tampa, for Appellee 1704 17th Street Venture, LLC, a Florida limited liability company. GUARD, Judge. Talbot, LLC (Talbot) appeals the dismissal of its amended complaint arising out of the City of Tampa's (City) grant of a variance. As to the City, we affirm, concluding that binding precedent from the Florida Supreme Court bars Talbot's injunctive and declaratory relief claims to enforce the City's ordinances. As to Talbot's remaining claims, we affirm, holding that partially obstructing Talbot's rooftop view, with no other effect on Talbot's property, is not sufficient injury to confer standing. I. Talbot owns a historic building known as the Stein building in Ybor City. Talbot leases that building to a tenant that operates Prana, a night club with a rooftop bar. Talbot alleges that Prana has "long capitalized" on "unobstructed views to the City's skyline." 17th Street Venture, LLC (Venture) owns adjacent property to the Stein Building on which it built a mixed-use building known as the Miles Ybor building. Both buildings are in the YC-1 Ybor City historic zoning district. In the YC-1 district, construction is limited to a maximum height of forty-five feet. See TAMPA, FLA., CODE OF ORDINANCES § 27-177 TABLE 8-2 (2026). In its Code of Ordinances, the City defines how to calculate that height and excludes from that calculation certain building features like "parapet walls." Id. §§ 27-43, 27-158(a). The Barrio Latino Commission (BLC) serves "as the architectural review board for the Ybor City Historic District." Id. § 27-94(a). Thus, the BLC has the authority to "[h]ear and authorize variances" for the "height of structures" within that zoning district. Id. § 27-96(a)(1), (a)(3)(ii). Before granting a variance, the BLC must conduct a public hearing, consider various criteria, and "base its decision on substantial competent evidence in the official record." Id. § 27-96(c), (d). A person aggrieved by the decision can seek further review with the City Council. Id. §§ 27-96(h), 27-61(b)(2). The City Council's decision is "final" and "may be appealed to a court of competent jurisdiction in a manner set forth by applicable law." Id. § 27-61(j)(2)d. 2 In 2020, the predecessor-in-title to Venture applied to the BLC for a variance to allow construction of the Miles Ybor building to a height of fifty-four feet. The variance application referred to the comparable height of adjacent properties, noting an adjacent parking garage as being "approximately 60" feet in height and the Stein building as being "approximately 54" feet in height. According to the amended complaint, Talbot was "[c]oncerned" that the building "would eliminate" its "unobstructed views" of the City's skyline, but the predecessor owner of the Miles Ybor building "assured" Talbot that the building "would not exceed the height" of the Stein building. The BLC held a public hearing on the variance application. Talbot alleged that the predecessor owner "promised . . . that the structure would not be taller than" the Stein Building and that, consequently, Talbot did not oppose it, despite Talbot now alleging that the Stein building is only forty-eight feet, not fifty-four feet. The BLC approved the variance application, "permitting a height increase" from forty-five to fifty-four feet. Talbot alleged that the BLC approved the variance "subject to" the predecessor constructing the building in accordance with "details" shown on a "site plan" that was presented at the hearing. Talbot alleged that, based on the assurances it received, it "had no reason to appeal the variance, [with] actual construction being far into the future." Once the BLC approved the variance, Venture went through the remainder of the permitting process. Because of Miles Ybor building's location, the BLC also had to grant Venture a "Certificate of Appropriateness," which required review of not only the building's height but also its design. See generally TAMPA, FLA., CODE OF ORDINANCES § 27- 98. Once it received a building permit, the City subjected Venture, like all who receive a building permit, to various inspections. At the time of 3 the amended complaint, the Miles Ybor building was substantially completed. In addition to those inspections, before the City issues a certificate of occupancy, the BLC administrator must inspect and approve that the constructed building conforms with the certificate of appropriateness. See id. §§ 27-100(b), 27-101. As of the amended complaint, the BLC administrator had neither inspected nor approved the Miles Ybor building as constructed. As a result, the City had not issued a certificate of occupancy for the Miles Ybor building. In its original complaint, Talbot alleged that Venture violated the variance when constructing the Miles Ybor building. After engaging with a City employee by email, which is in the record, Talbot learned that the Miles Ybor building's parapet wall was not included in the definition of the building's "height." See id. § 27-158(a). Thereafter, Talbot amended its complaint. Instead, Talbot alleged that, contrary to the "assurances" of the predecessor owner, the Miles Ybor building's "parapet wall exceeds the current height of [the Stein Building]'s parapet wall by eight feet." Talbot alleged that it and its tenant have been harmed because they no longer have the same "majestic, sweeping, unobstructed views to the City of Tampa skyline." As clarified at oral argument, Talbot's claim boils down to a rendering provided by the predecessor owner in its site plan that made it appear that the buildings' heights would be equal and, as built, the heights are not equal, thus, part of Talbot's view is now partially blocked. That rendering is part of the amended complaint. Each of Talbot's claims sought to unwind the BLC's height variance approval from 2020 and prevent all further development and approvals for the Miles Ybor building until the BLC issued a new variance. As Talbot described in the trial court, the relief it sought was to "go back to 4 the beginning" for the BLC to consider the variance anew. In Count I, Talbot asserted a Boucher1 cause of action for an alleged zoning violation, claiming that the Miles Ybor building "exceeded the scope of the variance" granted by the BLC and requesting injunctive relief requiring 17th Street Venture to "cease development activity until the [BLC] issues a new variance." In counts II and III, Talbot sought declaratory relief for alleged ultra vires acts against the City. In count IV, Talbot asserted an "Equitable Estoppel" claim. Venture and the City both moved to dismiss. Talbot did not seek leave to amend at, before, or after the hearing on the motion to dismiss. The trial court dismissed Talbot's action with prejudice, concluding, among other reasons, that Talbot lacked standing. Talbot timely appealed. II. We review an order dismissing a complaint with prejudice de novo, including an order dismissing a complaint based on the plaintiff's lack of standing. Ellerson v. Moriarty, 331 So. 3d 767, 769 (Fla. 2d DCA 2021). Initially, we affirm dismissal of the counts against the City seeking injunctive or declaratory relief requiring it to enforce its zoning ordinances.2 See City of West Palm Beach, Inc. v. Haver, 330 So. 3d 860, 1 Boucher v. Novotny, 102 So. 2d 132 (Fla. 1958). 2 While Counts II, III, and IV also purport to be against Venture, the actual remedies requested appear to be only aimed at requiring the City to take certain actions pursuant to its zoning laws. To the extent that Count IV's remedy requesting equitable relief of "voiding the 'Miles Ybor' building's variance" could be interpreted as seeking relief against Venture, we construe Talbot invoking equitable estoppel alongside its Boucher claim against Venture. See Bair v. City of Clearwater, 196 So. 3d 577, 584 (Fla. 2d DCA 2016). We have held that "equitable estoppel is a defensive doctrine rather than a cause of action." Angelo's Aggregate 5 865-66 (Fla. 2021). In Haver, the Florida Supreme Court clarified that a Boucher claim does not exist unless a plaintiff alleges a violation by a governing body of its own zoning ordinances. Id. at 866. Talbot failed to allege any such violation in its amended complaint. Thus, we affirm. Moving to what remains of the amended complaint and to Talbot's standing, the parties spent considerable time arguing about the injury allegedly suffered by Talbot. No party spent time discussing the standard that applied to Talbot to prove standing. Though both cite cases applying Florida's standing requirements in zoning cases as well as the federal standing standard, those standards seem to be at odds with each other and neither party offers an explanation or argument on what standard we should apply. A. In Renard v. Dade County, the Florida Supreme Court outlined the various possible standing standards that could apply arising out of zoning related dispute. 261 So. 2d 832, 837-38 (Fla. 1972). Under Renard, if the claim challenged the zoning action or inaction of a governmental body—in other words, if it was a Boucher claim—then the aggrieved party must suffer "special damages" to have standing. Id. at 837. The court defined special damages as "a definite interest exceeding the general interest in community good share[d] in common with all citizens."3 Id. If, instead, the claim attacked a validly enacted zoning Materials, Ltd. v. Pasco Cnty, 118 So. 3d 971, 973 n.3 (2013) (quoting Meyer v. Meyer, 25 So. 3d 39, 43 (Fla. 2d DCA 2009)). 3 In Renard, the court conveyed that what was meant in Boucher by special damages had changed and should now be more lenient. 261 So. 2d at 837-38 (commenting that "in the twenty years since the Boucher decision, changed conditions, including increased population growth and density, require a more lenient application of that rule"); see also Skaggs–Albertson's v. ABC Liquors, Inc., 363 So. 2d 1082, 1088 (Fla. 6 ordinance as being arbitrary and unreasonable exercises of legislative power, then the party need only show that it had a "legally recognizable interest" that was "adversely affected" by the action to have standing. Id. at 838. Finally, if the action was to attack an ordinance as being void, then "[a]ny affected resident, citizen or property owner of the governmental unit" has standing. Id. B. Normally, we would review Talbot's remaining claims and analyze which category under Renard each fit and resolve those claims from there. But two recent cases of the Fourth District cause us to pause: (1) Everett Bros. Recycling, Inc. v. Martin County, 401 So. 3d 372, 375-78 (Fla. 4th DCA 2025), and (2) Citizens for Responsible Dev., Inc. v. City of Dania Beach, 358 So. 3d 1, 5-8 (Fla. 4th DCA 2023). In Everett Brothers and Citizens, the Fourth District grafted the special damages requirement for a Boucher claim from Renard onto the federal standing standard and analyzed whether the plaintiff had standing. Everett Bros. Recycling, 401 So. 3d at 375-78; Citizens for Responsible Dev., 358 So. 3d at 5-8. In doing so, Everett Brothers relied on Citizens to support the use of the federal standard. 401 So. 3d at 375. In turn, Citizens cited a footnote from the Florida Supreme Court's decision in State v. J.P., 907 So. 2d 1101, 1113 n.4 (Fla. 2004), as its basis for adopting the federal standard into the standing framework for a zoning challenge. 358 So. 3d at 5. 1978) (stating that the special damage rule still has vitality in actions seeking to enforce a valid zoning ordinance, albeit with a more liberal application). The Florida Supreme Court has not further clarified what "a more lenient application" exactly entails. 7 It is not just zoning disputes where the federal standard has been adopted by other District Courts of Appeal, as there are decisions in the First, Third, and Fourth Districts relying directly or indirectly on J.P. in support of using that federal standard in a wide variety of cases. See Frank v. Conlan, 434 So. 3d 452, 459 (Fla. 4th DCA 2026), reh'g denied (May 27, 2026) (applying federal standard to a will contest); Pet Supermarket, Inc. v. Eldridge, 360 So. 3d 1201, 1205 (Fla. 3d DCA 2023) (concluding that the federal standard applied to a violation of a federal statute in state court); Saleh v. Miami Gardens Square One, Inc., 353 So. 3d 1253, 1255 (Fla. 3d DCA 2023) (applying similarly); Southam v. Red Wing Shoe Co., 343 So. 3d 106, 109 (Fla. 4th DCA 2022) (utilizing the federal standard); Cmty. Power Network Corp. v. JEA, 327 So. 3d 412, 415 (Fla. 1st DCA 2021) (applying federal standard in net metering dispute); DeSantis v. Fla. Educ. Ass'n, 306 So. 3d 1202, 1213 (Fla. 1st DCA 2020) (concluding no standing under federal standard related to COVID school re-opening order); Giuffre v. Edwards, 226 So. 3d 1034, 1039 (Fla. 4th DCA 2017) (applying the federal standard in a defamation suit). C. We have not squarely addressed this issue.4 J.P. involved a challenge to juvenile curfew ordinances on constitutional grounds. 907 So. 2d at 1104-05. There, the Florida Supreme Court held that the ordinances violated the juveniles' rights to privacy and freedom of movement. Id. at 1113-16. As the court concluded, the ordinances were 4 We did cite to J.P. in Rigollet v. Le Macaron Dev., LLC, 383 So. 3d 132, 137 n.4 (Fla. 2d DCA 2024), in a footnote for the simple proposition that standing has an injury component. Id. We did not join the First, Third, or Fourth's adoption of the federal standard. 8 unconstitutional because the localities' proffered governmental interests, while compelling, were not narrowly tailored. Id. at 1116-19. Standing was not a major issue in J.P. Its sole mention was in connection with an argument that the ordinances violated "parents' rights to raise their children." Id. at 1113. In response to that argument, the supreme court wrote "[b]ecause the Second District never determined whether these juveniles have standing to assert the constitutional rights of their parents, we decline to rule on these claims." Id. On the comma of the above quoted passage, the court dropped a footnote which stated: There are three requirements that constitute the "irreducible constitutional minimum" for standing. Vt. Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765, 771, 120 S. Ct. 1858, 146 L.Ed.2d 836 (2000). First, a plaintiff must demonstrate an "injury in fact," which is "concrete," "distinct and palpable," and "actual or imminent." Whitmore v. Arkansas, 495 U.S. 149, 155, 110 S. Ct. 1717, 109 L.Ed.2d 135 (1990). Second, a plaintiff must establish "a causal connection between the injury and the conduct complained of." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992). Third, a plaintiff must show "a 'substantial likelihood' that the requested relief will remedy the alleged injury in fact." Stevens, 529 U.S. at 771, 120 S. Ct. 1858. 907 So. 2d at 1113 n.4. In the body of the opinion, after the above sentence, the supreme court cited our decision in State v. T.M., 761 So. 2d 1140, 1145 (Fla. 2d DCA 2000). 907 So. 2d at 1113. In T.M., we relied on an earlier Florida Supreme Court case, State v. Hagan, 387 So. 2d 943 (Fla. 1980), not federal standing case law, in deciding a standing issue. 761 So. 2d at 1145. 9 Based on just a cursory review of J.P., we have serious doubts whether the Florida Supreme Court in J.P. adopted the federal standard for Florida state courts. But we recognize that the First, Third, and Fourth Districts reached the opposite conclusion. Before reaching a conclusion on what standard should apply, we first examine both federal and state standing law and their origins to see if the standards are reconcilable. We will also look at four Florida Supreme Court cases decided after J.P. and determine whether the court itself has said anything that helps us resolve this question. 1. a. First, we review modern federal standing doctrine, so that we can compare it to Florida standing doctrine before J.P. Unlike state courts, as discussed below, federal courts are courts of limited jurisdiction— "[l]imited first by the Constitution, to only the kinds of 'Cases' and 'Controversies' listed in Article III. And for all lower federal courts, limited as well by statute." Royal Canin U.S.A., Inc. v. Wullschleger, 604 U.S. 22, 26 (2025). Federal district courts have limited jurisdiction to hear only federal criminal violations and a limited number and type of civil actions. See, e.g., 18 U.S.C. § 3231 (2026) (establishing original jurisdiction in federal district courts for all offenses against the United States); 28 U.S.C. § 1331 (2026) (detailing civil federal question jurisdiction); 28 U.S.C. § 1332 (2026) (creating federal jurisdiction where there is diversity of citizenship and $75,000 or more in controversy). In federal courts, standing is jurisdictional, meaning failing to plead or later prove the "irreducible constitutional minimum of standing" leads a federal court to dismiss an action just like a district court would dismiss an action for lacking diversity or federal question jurisdiction. Steel Co. 10 v. Citizens for a Better Env't, 523 U.S. 83, 102-03, 110 (1998) (quoting Lujan v. Def. of Wildlife, 504 U.S. 555, 559–560 (1992)). Federal standing doctrine emanates from the United States Constitution. TransUnion LLC v. Ramirez, 594 U.S. 413, 422-23 (2021). In Ramirez, the United States Supreme Court emphasized that its standing doctrine exists because the text of the Constitution vests "judicial Power" in federal courts and "confines" that power "to the resolution of 'Cases' and 'Controversies.'" Id. at 423. Article III, Section 2, clause 1 of the Constitution reads in full: The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;— between a State and Citizens of another State;—between Citizens of different States;— between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. Art. III, § 2, cl. 1, U.S. Const. Almost sixty years ago, the Court discussed the "Cases" and "Controversies" requirements of Article III, Section 2, as accomplishing two purposes: protecting separation of powers and ensuring only real disputes are resolved. Flast v. Cohen, 392 U.S. 83, 94-95 (1968). In Flast, the Court stated: As is so often the situation in constitutional adjudication, those two words have an iceberg quality, containing beneath their surface simplicity submerged complexities which go to the 11 very heart of our constitutional form of government. Embodied in the words 'cases' and 'controversies' are two complementary but somewhat different limitations. In part those words limit the business of federal courts to questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process. And in part those words define the role assigned to the judiciary in a tripartite allocation of power to assure that the federal courts will not intrude into areas committed to the other branches of government. Id. Almost two decades after Flast and over forty years ago, the Court further commented that standing is "an aspect of justiciability." Allen v. Wright, 468 U.S. 737, 750 (1984). It stands beside other doctrines— mootness, ripeness, and political question—to limit the power "of an unelected, unrepresentative judiciary." Id. (quoting Vander Jagt v. O'Neill, 699 F.2d 1166, 1178-79 (D.C. Cir. 1983) (Bork, J., concurring)). It "is built on a single basic idea—the idea of separation of powers." Allen, 468 U.S. at 752; see also Valley Forge Christian Coll. v. Am. United for Separation of Church and State, Inc., 454 U.S. 464, 472 (1982) (stating that standing in federal courts "limit[s] the federal judicial power 'to those disputes which confine federal courts to a role consistent with a system of separated powers and which are traditionally thought to be capable of resolution through the judicial process' " (quoting Flast, 392 U.S. at 97))). It works to "prevent the judicial process from being used to usurp the powers of the political branches." Clapper v. Amnesty Int'l USA, 568 U.S. 398, 408 (2013); see also Lujan, 504 U.S. at 559-560 (expressing that "the Constitution's central mechanism of separation of powers depends largely upon common understanding of what activities 12 are appropriate to legislatures, to executives, and to courts" and that standing is part of that mechanism of defining the activities of courts). The majority in Ramirez summarized what the constitutional requirements of standing were designed to prevent: Under Article III, federal courts do not adjudicate hypothetical or abstract disputes. Federal courts do not possess a roving commission to publicly opine on every legal question. Federal courts do not exercise general legal oversight of the Legislative and Executive Branches, or of private entities. And federal courts do not issue advisory opinions. 594 U.S. at 423-24. Four decades ago, the Court stated that "the term 'standing' [in federal court] subsume[d] a blend of constitutional requirements and prudential considerations." Valley Forge Christian Coll., 454 U.S. at 471. These prudential considerations meant that, even if a plaintiff meets the constitutional requirements detailed below, a federal court could decline to exercise its jurisdiction if it would be unwise or imprudent to do so. See Allen, 468 U.S. at 751. More recently, the Court has described "prudential considerations" as "part of judicial self-government." Lujan, 504 U.S. at 560. Though, the Court over time has converted some previous "prudential considerations" to become part of the constitutional requirements or done away with other prudential considerations. See, e.g., Lexmark Int'l., Inc. v. Static Control Components, 572 U.S. 118, 125- 27, 127 n.3 (2014) (stating that "a federal court's 'obligation to hear and decide' cases within its jurisdiction is virtually unflagging"). The history of federal standing doctrine is highly debated. Compare Ann Woolhandler & Caleb Nelson, Does History Defeat Standing Doctrine?, 102 MICH. L. REV. 689, 691-92 (2004) (arguing that history does not defeat the modern federal standing doctrine) with John A. 13 Ferejohn & Larry D. Kramer, Independent Judges, Dependent Judiciary: Institutionalizing Judicial Restraint, 77 N.Y. U. L. REV. 962, 1009 (2002) (claiming that the federal standing doctrine was "fabricat[ed]" by the modern Supreme Court). In Spokeo, Inc. v. Robins, Justice Thomas traced the origins of "modern standing doctrine" to how common-law courts historically treated private versus public claims of injury. 578 U.S. 330, 344-47 (2016) (Thomas, J., concurring). According to Justice Thomas, as courts expanded who could sue for a violation of a public right, those courts required plaintiffs to allege and prove "special damage" which was defined as "some extraordinary damage, beyond the rest of the [community]." Id. at 344-45 (alteration in original) (quoting 3 WILLIAM BLACKSTONE, COMMENTARIES *220). Justice Thomas focused on the common-law claim of public nuisance in his analysis. Id. at 345. "These differences between legal claims brought by private plaintiffs for the violation of public and private rights underlie modern standing doctrine and explain the Court's description of the injury-in-fact requirement." Id. at 346. Under his view, the injury-in-fact requirement served the same purpose as the old special damage requirement. Id. Those limitations prevent a court from violating separation of powers principles by limiting the claims that could be litigated to only those where a private plaintiff is injured in a " 'concrete' injury particular to himself." Id. b. Before turning to the federal standing constitutional requirements or retuning to J.P., it is next necessary to compare Florida courts and their jurisdiction to federal courts and analyze how any differences impact standing. The primary difference between federal courts and Florida courts is that Florida courts are courts of general or "plenary" 14 jurisdiction. Dep't of Revenue v. Kuhnlein, 646 So. 2d 717, 720 (Fla. 1994). In other words, Florida courts "have authority over any matter not expressly denied them by the constitution or applicable statutes." Id. There is no list, like that contained in Article III, Section 2 of the United States Constitution, limiting the types of matters or parties that may come before Florida state courts. See, e.g., Art. V, § 5(b), Fla. Const. (1972) (stating that "[t]he circuit courts shall have original jurisdiction not vested in the county courts"); Art. V, § 6(b) (providing that the jurisdiction of the county courts shall be "prescribed by general law"). Florida courts do not deal with just criminal and civil matters, like federal district courts. Florida courts can hear nearly any matter relating to a person's birth, or before, through their estate after their death. See, e.g., § 26.012, Fla. Stat. (2026) (containing the jurisdiction of circuit courts); § 34.01, Fla. Stat. (2026) (detailing the jurisdiction of county courts); see also Torres v. Sarasota Cnty. Pub. Hosp. Bd., 961 So. 2d 340, 345-48 (Fla. 2d DCA 2007) (concluding that a duty existed for a doctor to a plaintiff for preconception negligence and allowing recovery for medical malpractice before conception); Grant v. Kunke, 397 So. 3d 758 (Fla. 2d DCA 2024) (barring daughter's claim against her mother's estate for failure to adhere to statutory deadline). The federal standing test, which was designed for courts with a limited, narrow jurisdiction, may not be workable for courts with a broader, general jurisdiction. While federal courts can deny standing and the parties may still have a forum to litigate their disputes,5 if 5 Being a creature of federal jurisdiction, federal standing does not apply in state courts even when they consider federal statutes. See ASARCO Inc. v. Kadish, 490 U.S. 605, 617 (1989) ("[S]tate courts are not bound by the limitations of a case or controversy or other federal rules of justiciability even when they address issues of federal law . . . ."). 15 Florida limited standing too narrowly, litigants could be deprived access to any court. At the very least, one would expect that the Florida Supreme Court would consider the workability of a rule created for a limited, narrow jurisdiction in a general jurisdiction environment if adopting it, which it did not in J.P. Second, the fears of "an unelected, unrepresentative judiciary"6 serving for life, which are at the heart of federal standing doctrine, are not present, or not as present, with Florida's judiciary. Florida's judiciary is ultimately accountable to the people. Florida circuit and county judges are directly elected by electors in their jurisdictions. Art. V, § 10(b), Fla. Const. (1998). The people of Florida vote on whether to retain Florida Supreme Court justices and District Court of Appeal judges. Art. V, § 10(a), Fla. Const. (1998). Likewise, unlike federal justices or judges, no Florida state justice or judge serves for life as the Florida Constitution makes them ineligible to serve after they turn seventy-five years old. Art. V, § 8, Fla. Const. (2018). Taken collectively, the democratic concerns underlying much of the federal standard are missing from Florida courts, which again the court in J.P. did not discuss. Third, standing in Florida courts is treated procedurally different. The Florida Supreme Court has held that standing is waivable unlike in federal court. Krivanek v. Take Back Tampa Pol. Comm., 625 So. 2d 840, 842 (Fla. 1993); Cowart v. City of W. Palm Beach, 255 So. 2d 673, 674-75 (Fla. 1971). Because standing is waivable, the Florida Supreme Court also concluded that standing is not jurisdictional. Page v. Deutsche Bank Tr. Co. Ams., 308 So. 3d 953, 960-61 (Fla. 2020). In other words, 6 Allen, 468 U.S. at 750-51 (quoting Vander Jagt v. O'Neill, 699 F.2d 1166, 1178-79 (D.C. Cir. 1983) (Bork, J., concurring)). 16 in Florida state courts, if a party lacks standing, it does not cause the court to lack subject matter jurisdiction. Id. Instead, a party's case eventually fails only if a party raises standing as an affirmative defense and the plaintiff cannot prove standing. See, e.g., Corrigan v. Bank of Am., N.A., 189 So. 3d 187, 189-90 (Fla. 2d DCA 2016) (en banc). To the extent that J.P. adopted the federal standard and set it as the "irreducible constitutional minimum,"7 it did not clarify how to square the jurisdictional aspect of federal standing with how standing in Florida courts has been historically waivable and non-jurisdictional. Again, at the very least, if J.P. was meant to change Florida standing law, we would have expected that the Florida Supreme Court would have examined this issue, which it did not. Fourth, there are textual differences between the federal and Florida constitutions despite similar underlying concerns. Initially, apart from J.P., which cited federal constitutional decisions,8 there are few clear statements from the Florida Supreme Court on where Florida standing doctrine emanates. There is little discussion of a textual, constitutional basis for Florida's standing doctrine in Florida Supreme Court precedent. The best statement that we could find that sounded like a constitutional basis for Florida's standing doctrine was in State ex rel. Crim v. Juvenal, 159 So. 663, 664 (Fla. 1935). In Juvenal, the Florida Supreme Court anchored its standing jurisprudence in both the idea of "judicial power" and in separation of powers concerns. The court stated: It is not the province of the judiciary to act as a general conservator of the Constitution as a restraint upon the powers or abuses of other 7 907 So. 2d at 1113, n.4 (quoting Vt. Agency of Natural Res., 529 U.S. at 771.). 8 Id. 17 branches of the government, even in cases where the Constitution appears to have been flagrantly violated. This is true because the judicial power extends only to an enforcement of the Constitution when its protection is properly invoked in a judicial manner before a competent tribunal by one entitled to claim the benefit of the Constitution's provisions as against some threatened wrong about to be done in disregard of organic inhibition or mandate. Id.; see also Kuhnlein, 646 So. 2d at 720-21 (discussing standing as avoiding advisory opinions, which would seem to implicate Florida's separation of powers clause in Art. II, § 3, Fla. Const., though the court did not cite to or analyze that provision). While the above language is consistent with language found in Supreme Court of the United States precedent cited above, it is striking that there is little discussion or textual analysis in Florida Supreme Court jurisprudence relating to standing since Juvenal almost a century ago. While we could find no supreme court opinion that explicitly cited to text of the Florida Constitution, to the extent that the Florida standing doctrine emanates from the Florida Constitution, it would make sense it would emanate from Article V, section 1 of the Florida Constitution. 9 Art. V, § 1, Fla. Const. That section reads "[t]he judicial power shall be vested in a supreme court, district courts of appeal, circuit courts and 9 In interpreting the Florida Constitution, the Florida Supreme Court has expressed its "commitment to the supremacy-of-text principle." Planned Parenthood of Sw. and Cent. Fla. v. State, 384 So. 3d 67, 77 (Fla. 2024). The court focuses on the words of the Florida Constitution and what those words convey, in context, is what our constitution means. Id. The court's goal in using this approach "is to ascertain the original, public meaning of a constitutional provision—in other words, the meaning as understood by its ratifiers at the time of its adoption." Id. 18 county courts."10 Id. There is no "Case" or "Controversy" language in Florida's current or past constitutions. But, despite that textual difference, the Florida Supreme Court construed the language of Article V, section 1 to limit "judicial power" to justiciable controversies. See Casiano v. State, 310 So. 3d 910, 913 (Fla. 2021); Burnett v. Greene, 122 So. 570, 575 (Fla. 1929) (involving identical language under the 1885 Florida Constitution). In Burnett, the court stated: The judicial power of the state extends to all controversies justiciable in their nature and to the parties to which or the property involved in which may be reached by judicial process. All the judicial power which the state is capable of exercising is vested by the Constitution in the courts enumerated in it. Id.; see also Kuhnlein, 646 So. 2d at 720-21 (explaining that an exception to the requirement that a case must involve a real controversy is where the Florida Constitution authorizes advisory opinions); Sarasota-Fruitville Drainage Dist. v. Certain Lands Within Said Dist. Upon Which Drainage Taxes for the Year 1952 Have Not Been Paid, 80 So. 2d 335, 336 (Fla. 1955) (dismissing appeal and commenting that appellate review is available only for "actual controversies" and not the rendition of "advisory opinions"). 10 All previous constitutions of Florida have used a similar formulation. Art. V, § 1, Fla. Const. (1838) (stating that "[t]he Judicial power of this State, both as to matters of law and equity, shall be vested in a Supreme Court, Courts of Chancery, Circuit Courts and Justices of the Peace, provided the General Assembly may also vest such criminal jurisdiction as may be deemed necessary in Corporation Courts, but such jurisdiction shall not extend to capital offenses"); Art. V, § 1, Fla. Const. (1865) (containing unchanged language); Art. VI, § 1, Fla. Const. (1868) (stating that "[t]he judicial power of the State shall be vested in a Supreme Court, circuit courts, county courts, and justices of the peace"); Art. V, § 1, Fla. Const. (1885) (containing unchanged language). 19 Had the Florida Supreme Court not limited "judicial power" to justiciable controversies as it did, Florida's explicit separation of powers provision would have likely mandated a similar result. Art. II, § 3, Fla. Const. (1968).11 That section provides: The powers of the state government shall be divided into legislative, executive and judicial branches. No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein. Id. The Florida Supreme Court applies "a strict separation of powers doctrine" for Article II, section 3. Bush v. Schiavo, 885 So. 2d 321, 329 (Fla. 2004) (quoting State v. Cotton, 769 So. 2d 345, 353 (Fla. 2000)). Under that doctrine, "no branch may encroach upon the powers of another." Id. Its non-encroachment history traces its beginnings back to a decision in 1863, where the court stated: The framers of the Constitution of Florida, doubtless, had in mind the omnipotent power often exercised by the British Parliament, the exercise of judicial power by the Legislature in those States where there are no written Constitutions restraining them, when they wisely prohibited the exercise of such powers in our State. That Convention was composed of men of the best legal minds in the country—men of experience and skilled in the law—who had witnessed the breaking down by unrestrained legislation all the security of property derived from contract, the divesting of vested rights by doing away the force of the law as decided, the overturning of solemn 11 All previous constitutions of Florida have used a similar textual formulation. 20 decisions of the Courts of the last resort, by, under the pretence of remedial acts, enacting for one or the other party litigants such provisions as would dictate to the judiciary their decision, and leaving everything which should be expounded by the judiciary to the variable and ever-changing mind of the popular branch of the Government. Id. at 329-30 (quoting Trs. Internal Improvement Fund v. Bailey, 10 Fla. 238, 250 (1863)). Finally, Florida's access