Legal Report, October 2019

General Counsel, Keith Davis

1.  Johnson v. Ocaris Mgmt. Group, Inc., Case No. 18-CV-24586-PCH (S.D. Fla. 2019). Ethics, ADA compliance, attorney’s fees: UPDATE
This case was reported in the August 2019 legal report. It involves a plaintiff’s suit against a gas station owner alleging violation of Title III of the Americans with Disabilities Act (“ADA”) due to the gas station owner’s failure to provide closed captions on the television screens embedded within the gas pumps. The suit is one of 26 identical suits brought by the plaintiff against gas station owners throughout Miami-Dade and Broward counties for the same alleged ADA violation (“gas pump suits”). Following an August 23, 2019 court order from the U.S. District Court imposing sanctions, Plaintiff and Plaintiff’s Attorney were given an opportunity to be heard before the district court made any last-minute modifications to sanctions before finalization. Both Plaintiff and Plaintiff’s Attorney accordingly filed Motions for Partial Stay Pending Appeal of Court Order, and further advised the Court of their recommendations regarding the sanctions imposed.

UPDATE: After holding a hearing on the motions on September 27, 2019, the District Court issued a final order that heavily penalized both the Plaintiff and Plaintiff’s Attorney. Plaintiff was required to pay a fine of $6,600 and perform 150 hours of community service. Plaintiff’s Attorney was required to pay a fine of $23,000 and perform 150 hours of community service. Plaintiff’s Attorney was further ordered to file a copy of the August 23, 2019 Order Imposing Sanctions in “every ADA case . . . filed in federal and state court within the last twenty-four months.” In other words, Plaintiff’s Attorney has to file the August court order imposing penalties with all other courts where he has ADA cases pending from the past two years, thereby notifying all of these state and federal courts of the Attorney’s egregious misconduct and resulting sanctions imposed by the U.S. District Court for the Southern District of Florida. This sweeping requirement to re-file the District Court’s Sanctions Order in all courts where similar ADA cases are pending from the past two years will likely signal the dismissal of most, if not all, of the ADA compliance cases similarly-filed by Plaintiff’s Attorney (the “gas pump suits”). The heavy penalties incurred here by Plaintiff and Plaintiff’s Attorney may also have a ‘chilling effect’ on ADA-compliance challenge suits as a whole.

Additionally, the U.S. District Court dismissed the case with prejudice, thus barring Plaintiff from ever bringing any lawsuit based on this claim again. This type of dismissal is often reserved for claimants who have committed some form gross negligence or misconduct while filing their case.

2.         Pirate’s Treasure, Inc. v. City of Dunedin, Case No. 2D18-2774 (2nd DCA 2019). Standing, zoning approvals.
Pirate’s Treasure, Inc. (“Plaintiff”) submitted a property redevelopment application that required zoning and land use approvals from the City of Dunedin (“City”). When the City did not issue approvals for the property as planned, Plaintiff filed suit against the City and its employee, Mr. Campbell (“Employee”). While the case against Employee was pending, Plaintiff transferred the property at issue to a different company that was separate from, but related to, Plaintiff. In response, Employee filed a motion for summary judgment, arguing that Plaintiff lacked standing to maintain the action after transferring ownership of the property.

The circuit court granted Employee’s motion for summary judgment. However, on appeal, the Second District Court of Appeals (“DCA”) reversed, stating that Employee had not proved that there was “no genuine dispute” that Plaintiff completely lacked standing to bring its tort claim. Specifically, even though Plaintiff had transferred ownership of property at issue, the Second DCA reasoned that Plaintiff had demonstrated a “direct and articulable interest” in the outcome of the case that was sufficient to survive a summary judgment motion for lack of standing. This “direct and articulable interest” was demonstrated by Plaintiff’s acting as a representative party on behalf of the company who was a successor-in-interest to the property at issue. Therefore, if a company challenges a municipality’s land use decision, but then sells the affected property to a third party, the original company can still likely prove standing sufficient to withstand a summary judgment motion from the municipality, so long as the original company retains a “sufficient interest” in the property.


3.         AGO 2019-10 (September 11, 2019). Statutory language interpretation; Sales surtax
The Florida Attorney General (“AG”) addressed when a county government is precisely required to undergo a performance audit when renewing a discretionary sales surtax to fund infrastructure, per § 212.055(11)(d), F.S.
Florida county governments are authorized to implement a discretionary sales surtax of 0.5 or 1 percent to fund infrastructure improvements, pursuant to § 212.055(2), F.S. Additionally, under § 212.055(11)(d), F.S., county governments who renew a previously adopted infrastructure sales surtax are exempt from obtaining a performance audit when they adopt “the same discretionary surtax” as the surtax being replaced. In other words, a performance audit is typically required before adoption of a county government sales surtax under § 212.055, F.S., unless the county is simply re-adopting the “same” surtax that was previously in place. 

The AG addressed whether § 212.055(11)(d), F.S exempting a county government from the performance audit requires only the surtax rate to be the same, or does it also require the duration of the surtax as described in the enacting ordinance and ballot question to be the same? The AG opined that in order to be exempt from the requirement of a performance audit pursuant to § 212.055(11)(d), F.S., the proposed discretionary sales surtax being voted upon must be the same as the immediately preceding surtax in all material respects. Thus, to be exempt from the required performance audit, the proposed discretionary sales surtax must be identical to the preceding surtax in both rate and duration.

For example, in 2016 Palm Beach County imposed a one percent (1%) infrastructure sales surtax pursuant to Sect. 212.055(2), F.S. This surtax is set to expire after ten (10) years, on December 31, 2026. See Sec. 17-493, Palm Beach Co. Muni. Code. If Palm Beach County wanted to renew its 1% infrastructure sales surtax in the year 2027 without having to undergo another performance audit as required by § 212.055(11)(d), F.S., the County would have to propose a sales surtax that copies the previous one in “all material respects,” i.e. it must be another 1% sales surtax with a duration of 10 years.

This Opinion only affects Palm Beach County municipalities to the extent that the municipalities receive infrastructure sales surtax revenue from the County. Infrastructure sales tax proceeds are distributed by the Department of Revenue directly to the County, the municipalities, and the county school board in accordance with an interlocal agreement. See Sec. 17-492, Palm Beach Co. Muni. Code. So, while Palm Beach County municipalities don’t have to comply directly with the possible performance audit requirements described in this Opinion and § 212.055(11)(d), F.S., it is in the municipalities’ best interests to ensure that Palm Beach County as the original drafter of the surtax adheres to the requirements of § 212.055(11)(d), F.S.