HomeMy WebLinkAboutR-99-0727J-99-839
9/28/99
RESOLUTION NO. �j �j —
A RESOLUTION OF THE MIAMI CITY COMMISSION
SUPPORTING AND ENDORSING THE REQUEST OF
REPRESENTATIVE CARRIE MEEK TO THE DEPARTMENT
OF JUSTICE AND THE REQUEST OF THE CITY OF
MIAMI CHIEF OF POLICE TO THE FEDERAL BUREAU
OF INVESTIGATION ("FBI"), DIVISION OF CIVIL
RIGHTS, TO REVIEW AN INCIDENT WHICH OCCURRED
ON SEPTEMBER 20, 1999, AND RESULTED IN THE
DEATH OF ANTONIO BUTLER.
WHEREAS, the City of Miami Police Department is committed to
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a full and impartial review of all incidents involving the use of
deadly force; and
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WHEREAS, the Miami -Dade County State's.Attorney.office and
the City of Miami Police Department will conduct a thorough
review of the incident which resulted in the death of Antonio
Butler on September 20, 1999; and
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WHEREAS, certain members of the community have voiced
concerns which precipitated a request by the Chief of Police that
the Federal Bureau of Investigation ("FBI") conduct an
CITY GO U'ro '
MEETING OF
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Fif;solution No.
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independent review of the incident; and
WHEREAS, Congresswoman Carrie Meek has also requested that
the Department of Justice conduct an independent and thorough
review of the incident;
NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY
OF MIAMI, FLORIDA:
Section 1. The recitals and findings contained in the
Preamble to this Resolution are hereby adopted by reference
thereto and incorporated herein as if fully set forth in this
Section.
Section 2. The request of Representative Carrie Meek to
the Department of Justice and the request of the City of Miami
Chief of Police to the Federal Bureau of Investigation ("FBI"),
Division of Civil Rights, to review an incident which occurred on
September 20, 1999, and resulted in the death of Antonio Butler,
is hereby supported and endorsed.
Section 3.
This Resolution shall become effective
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immediately upon its adoption and signature of the Mayor."
PASSED AND ADOPTED this 28th day of September 1999.
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JOE CAROLLO, MAYOR f
In accordance with Miami Code Sec. 2-36, since the Mayor did not ins'+tale nrrrov,.l of
this legislation by signing it in the designated place r! k(i
becomes effective with the e1aps-2 cf t: C) dr+l1s
regarding same, without the Mayor e, ,rcisi!!g a t i
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ATTEST:
WALTER J. FOENIAN, CITY CLERK
APPROVEE'' ASI TO RM AZ CORRECTNESS �1tj
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ALEJ,11iDR0 R O
' . 1CIi;1y.,/ ATTORNEY
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'-� If the Mayor does not sign this Resolution, it shall become
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effective at the end of ten calendar days from the date it was
passed and adopted. If the Mayor vetoes this Resolution, it
` shall become effective immediately upon override of the veto by
i the City Commission.
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CITY OF NIIANII
CITY ATTORNEY'S OFFICE
Z1F.'1ORANi)UNI
TO: flavor and ilembcrs ol' the Cite Corrinussion
FROM: Alejandro Vilarcllo, Cit ;1t ornc �
DATE: Se ptember 2 2, 1999 �'�
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RE: Patrick ;1McGratlj�1111, im i iduaflv, and on behalf of all
others sirnilarli, situated rs. The City of Mianri
Eleventh Judicial Cir sit Court Case No. 99-21456 CA-10
(LT-99-317)
The City of Miami has been named as the sole defendant in a lawsuit challenging the
imposition of the parking surcharge. The complaint seeks damages, declaratory and injunctive
relief.
The allegations set forth a class action based upon an interpretation of the authorizing
state statute that the language of the statute can be applied only to two cities (Miami and
Jacksonville). It is alleged that the state law is not a "general" law and can therefore not
authorize the surcharge tinder the Florida Constitution. The plaintiff states that he is a resident of
Miami who is required to pay the parking surcharge and is a representative of a class of
aggrieved parties. The lawsuit requests that the class be certified, the statute be declared
unconstitutional, the ordinance be declared invalid and that the City be enjoined in the future
from collecting the surcharge.
Several basis exist for the defense of this lawsuit and the City is currently being
represented by attorneys in my office. The case is assigned to Judge Margarita Esquiroz. The
answer to the lawsuit is due on October 4, 1999. Please contact me in order to discuss our legal
defenses to this claim.
c: Donald H. Warshaw, City Manager
Walter J. Foeman, City Clerk
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99 727
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IN THE CIRCUIT COURT OF THE I ITH
JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE
COUNTY, FLORIDA
PATRICK MCGRATH III, individually, and
on behalf of all others similarly situated,
Plaintiff
VS.
THE CITY OF MIAMI, a municipal corporation,
Defendant
99-21456 GA10
CASE NO:
CLASS REPRESENTATION
CLASS ACTION COMPLAINT '
Plaintiff, Patrick McGrath 111, individually and on behalf of all others similarly situated, sue
defendant* The City of Miami, and allege as follows:
PARTIES JURISDICTION AND VENUE
1. This is a Class action seeking declaratory relief, injunctive relief and damages In
excess of $15,000, exclusive of interest and costs. Plaintiff seeks to recover payments made and
to prevent future collection of a surcharge of 20% of the fee paid for the use of a parking space in
a parking facility in the City of Miami.
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2. Plaintiff, Patrick McGrath 111, is a resident of Miami -Dade County, Florida, and pays
a fee for parking at his principal place of business located in the City of Miami.
3. Defendant, City of Miami, is a municipal corporation located in Miami -Dade County.
4. This court has jurisdiction over this action under Florida Statutes § 26.012.
5. Venue is appropriate in Miami -Dade County as defendant resides in Miami -Dade
County and the causes of action accrued here.
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CLASS REPRESENTATION ALLEGATIONS
6. This action is brought by plaintiff as a class action on behalf of the class (the
"Class") consisting of all persons or entities who have paid a certain unlawful parking facilities tax
imposed and collected by defendant under its Ordinance No. 011813. Excluded from the Class
is the Defendant.
7. The exact number of members of the Class is not known, but it is estimated that
there are more than 1,000 members. This estimate is based upon the fact that this tax is expected
to raise over $1,000,000 monthly. The Class is so numerous that joinder of individual members
in this action is impracticable.
8. The claims of the plaintiff raise questions of law or fact common to the Class that
predominate over any questions solely affecting individual class members. Among the questions'
of law and fact common to the Class are the following:
(1) Whether the surcharge collected is an unconstitutional tax;
(2) Whether the City of Miami has been unjustly enriched by collection of this illegal
tax;
(3) Whether the imposition and collection of the tax has resulted in damages to
plaintiff and the Class; and
(4) Whether defendant should .be enjoined from further collection of this unlawful
tax.
9. The claims of the plaintiff are typical of the claims of all members of the Class
because they have been required by defendant to pay the unconstitutional tax. Likewise, any
defense asserted by defendant will be similar, if not identical, against the plaintiff and the Class.
10. Plaintiff can fairly and adequately protect and represent the interests of each ember
of the Class because plaintiff has no conflict of interest in this cause of action, has a mutual interest
In seeking damages against defendant, and is represented by competent and experienced counsel.
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11. This action is maintainable under Florida Rule of Civil Procedure 1,220(b)(1)
F because either (A) inconsistent or varying adjudications concerning individual members of the
{ Class would establish incompatible standards of conduct for defendant, or (B) the prosecution of
separate claims by individual members of the Class would create a risk of adjudications conceming
individual members of the Class which would, as a practical matter, be dispositive of the interests
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{ of other members of the Class who are not parties to the adjudications, or substantially impair or
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impede the ability of other members of the Class who are not parties to the adjudication to protect
their interests.
12. The particular facts and circumstances that support the conclusion required of this
court in determining that this action may be maintained as a Class action pursuant to Florida Rules
of Civil Procedure 1.220(b)(1)(A) are that inconsistent or varying determinations -of whether the '
surcharge is an unconstitutional tax, as alleged by plaintiff here, would require defendant to impose
and collect the tax on some individual members of the Class while prohibiting defendant from
imposing the tax on other similarly situated individual members of the Class.
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13. The particular facts and circumstances that support the conclusion required of this
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court in determining that this action may be maintained as a class action pursuant to Florida Rules
of Civil Procedure 1.220(b)(1)(B) are that prosecution of separate claims by individual members
of the Class would, as a practical matter, be dispositive of the interests of the other members of
the Class because of defendant's limited funds available to refund the tax due to defendants
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acknowledged existing condition of financial emergency.
14. This action is maintainable under Florida Rule of Civil Procedure 1.220(b)(2)
because the City of Miami has acted on grounds generally applicable to all members of the Class,
thereby making final injunctive relief or declaratory relief concerning the Class as a whole
appropriate.
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15. Alternatively, this action is maintainable under Florida Rules of Civil Procedure
1.220(b)(3) because the questions of law or fact common to the claim of the plaintiff and the claim
of each member of the Class predominate over any question of law or fact affecting only other
individual members of the Class, and class representation is superior to other available methods
for the fair and efficient adjudication of the controversy.
16, The particular facts and circumstances that support the conclusion required of this
court in determining that this action may be maintained as a Gass action pursuant to Florida Rules
of Civil Procedure 1.220(b)(3) are that the claim of the representative party and each member of
the Class, namely whether the surcharge is an unconstitutional tax, are iddntical in all material
respects, and that the adjudication of such claim in a single proceeding before this court will avoid
multiple adjudications of issues of fact and law that are common for all member's of the Class,'
namely whether the surcharge is an unconstitutional tax, and thus will avoid unnecessary
duplication of judicial labor and waste of scarce judicial resources, and will also avoid the possibility
of inconsistent results for similarly situated members of the Class.
GENERAL ALLEGATIONS
17. Article VII, § 1(a) of the Florida Constitution provides that all forms of taxation other
than ad valorem taxes are preempted to tree state except as provided by general law.
18. Article VII, § 9(a) of the Florida Constitution provides, in pertinent part, that
municipalities, such as defendant, may be authorized by general law to levy other taxes for their
respective purposes.
19. On July 13, 1999, the Board of City Commissioners of defendant, The City of Miami,
passed and adopted Ordinance No. 011813 (hereinafter referred to as the "Ordinance").
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20. The Ordinance is intended, among other things, to incorporate provisions for the
imposition and collection of a parking facilities surcharge at the rate of 20 percent of the fee paid
for the use of a parking space in a parking facility in the City of Miami.
21. The surcharge imposed and collected under the Ordinance is a tax within the
meaning of Article VI 1, §§ 1(a) and 9(a), of the Florida Constitution.
23. The surcharge imposed and collected under the Ordinance is not an ad valorem
tax within the meaning of Article VI 1, §§ 1(a) and 9(a), of the Florida Constitution.
24. The Ordinance was adopted pursuant to authority granted by Florida Statute
§218.503(5).
25. Florida Statute § 218.503(5) provides, In pertinent part, as follows:
'The governing authority of any municipality with a resident
population of 300,000 or more on April 1, 1999, and which has been
declared in a state of financial emergency pursuant to this section
within the previous 2 fiscal years may Impose a discretionary per
vehicle surcharge of up to 20 percent on the grass revenues of the
sale, lease, or rental of space at parking facilities within the
municipality that are open for use to the general public.
26. Defendant is the only municipality within the meaning of this statute "with a resident
population of 300,000 or more on April 1, 1999.' Alternatively, defendant and the consolidated
government of Jacksonville, Florida are the only municipalities within the meaning of this statute
`with a resident population of 300,000 or more on April 1, 1999."
27. Because Florida Statute § 218.503(5) cannot apply to any municipality other than
Miami, or, alternatively, to any municipality other than Miami and Jacksonville, Florida Statute
§218.503(5) is not a general law within the meaning of Article VI 1, §§ 1(a) and 9(a) of the Florida
Constitution. Accordingly, this statute is unconstitutional.
28. The Ordinance is not authorized by general law and therefore is Invalid,
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COUNT i — UNJUST ENRICHMENT
29, Paragraphs 1 through 28 are realleged and incorporated herein.
30. The surcharge imposed and collected under the Ordinance is an unconstitutional
tax imposed by the City of Miami in violation of Article V11, §§ 1(a) and 9(a), of the Florida
Constitution.
31. As of September 1, 1999, Defendant is collecting from plaintiff and the Class the tax
imposed by the Ordinance.
32. Defendant cannot lawfully collect and is not lawfully entitled to keep the tax imposed
by the Ordinance.
33. Defendant has been unjustly enriched by collecting from plaintiff and the Class the
tax Imposed by the Ordinance, which defendant cannot lawfully collect and is not lawfully entitled
to keep.
WHEREFORE, plaintiff and the Class request judgment against defendant certifying this
matter as a class action, and awarding plaintiff and the Class damages, prejudgment interest,
attomeys' fees and costs, and such other relief this court deems appropriate.
COUNT 11— DECLARATORY AND INJUNCTIVE RELIEF
34. Paragraphs 1 through 28 are realleged and incorporated herein.
35. Plaintiff and the Class are in doubt about the validity of the statute and the
Ordinance under the Florida Constitution and seek a judicial determination as to the validity of the
statute and Ordinance.
36. Plaintiff and the Class continue to face the threat that this unlawful tax will be
collected from them and thus have no adequate remedy at law.
37. Plaintiff and the Class will suffer irreparable harm unless defendant is enjoined from
continuing to collect this unlawful tax.
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WHEREFORE, plaintiff and the Class request a judgment certifying this matter as a class
action, declaring that the statute is unconstitutional and the Ordinance is invalid, enjoining
Defendant from continuing to collect this unlawful tax, as well as for attorneys' fees and costs and
such other relief as this Court deems appropriate.
Dated: September 13, 1999
HEISE MARKARIAN, P.A.
THOMAS J. KORGE, P.A.
Co -Counsel for Plaintiff
Co -Counsel for Plaintiff
Grove Forest Plaza, Suite 104
3250 Miami Center
2937 S.W. 2r Avenue
201 So. Biscayne Boulevard
Coconut Grove, Florida 33133
Miami, Florida 33131 '
Phone: (305) 530-8888
Phone: (305) 577-4955 .
Fax: (305) 530-8004
Fax: (305) M 4940 • "
By I3y
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J. KO GE
Flaar N 771090 ��
. Ba No. 1 923
DAVID K. MARKARIAN
Fla. Bar No. 480691
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