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Home My WebLink AboutR-93-0019J-9;3-32 12/24/92 1 RESOLUTION NO. 9 3 — 19 A RESOLUTION AUTHORIZING THE DIRECTOR OF FINANCE TO PAY TO BARBARA LEVENSON, LEONARD J. COOPERMAN, AND AMERICAN POLITICAL SIGNS OF FLORIDA, INC . , THE SUM OF $12,580.00, WITHOUT THE ADMISSION OF LIABILITY, IN FULL.AND COMPLETE SETTLEMENT OF ANY AND ALL CLAIMS AND DEMANDS AGAINST THE CITY OF MIAMI IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA, CASE NO. 92-1394-CIV-ATKINS, SAID PAYMENT TO BE MADE UPON THE EXECUTION OF A RELEASE RELEASING THE CITY FROM ALL CLAIMS AND DEMANDS, SAID FUNDS TO BE PROVIDED FROM THE INSURANCE AND SELF INSURANCE TRUST FUND. WHEREAS, Barbara Levenson, Leonard J. Cooperman, and American Political Signs of Florida, Inc., through counsel, filed a lawsuit against the City of Miami in federal court, and successfully obtained a permanent injunction against the City with respect to the enforcement of zoning ordinance 925.12(h) (commonly referred to as the Ordinance"); and "Temporary Political signs WHEREAS, said lawsuit also entitled plaintiffs to recover actual or nominal damages and their costs, as well as reasonable attorney's fees; and 1' WHEREAS, the above claim has been investigated by the Risk �1 Management Division and the City Attorney's Office and it is recommended that this claim be settled without admission of — liability for the sum of $12,580.00; CITY +CONMISSION MEETING OF. JAN 14 1993 �toeoludoa No, — 93- 19 _ NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSICN OF THE CITY OF MIAMI, FLORIDA: Section 1. The Director of Finance is hereby authorized to pay to BARBARA LEVENSON, LEONARD J. CGOPT!7, �, and AMERICAN POLITICAL SIGNS OF FLORIDA INC., the sum of $12,580.00, without the admission of liability, in full and complete settlement of all claims and demands against the City of Miami in the United States District Court for the Southern District of Florida, Case No. 92-1394-Civ-Atkins, said payment to be made upon the execution of a Release releasing the City of Miami from all claims and demands, said funds to be provided from the Insurance and Self -Insurance Trust Fund. Section 2. This Resolution shall become effective immediately upon its adoption. PASSED AND ADOPTED this 14th day of mar _, 1993. ATTE MATTY-HIRAI, CITY CLERK BUDGETARY REVIEW: <;U# MANOHAR S. SURANA ASSISTANT CITY MANAGER PREPARED AND APPROVED BY: CHXRLES C . MAYS - /- CHIEF ASSISTANT CITY ATTORNEY CCM/BSS/M3343 IER L. SUAR'F,Z, SELF -INS T FUND REVIEW: SUJAN CHn DI ECTOR RISK MANT DPARTMENT APPROVED AS TO FORM -2- 93- 19 0 #1� CITY OF MIAMI, FLORIDA INTER -OFFICE MEMORANDUM Honorable Mayor and Manbers Deceniber 24, 1992 J-93-32 TO of the City Ca n isslon DATE : FILE : Resolution authorizing settlement SUELJECT : with Levenson, et al. Case IJo. 92-1394-CIVAtkins FROM : KREi II1 REFERENCES : City Conmisslon Meeting January 14, 1993 ENCLOSUgES : (2 ) The attached proposed resolution authorizes the Director of Finance to pay Barbara Levenson, Leonard J. Cooperman, and American Political Signs of Florida, Inc., without admission; of liability, the sum of $12,580.00, in full and complete settlement of any and all claims and demands against the City of Miami, upon the execution of a Release of All Claims, releasing the City of Miami from any and all claims and demands. The complete evaluation of this claim is contained, in the attached Tort Committee settlement memorandum. In summary, the claimants successfully obtained a permanent injunction against the City of Miami with respect to the enforcement of zoning ordinance 925.12(h) (commonly referred to as the "Temporary Political Signs Ordinance"). The claimants were also entitled to recover actual or nominal damages and their costs, as well as reasonable attorneys fees. This claim has been investigated by the Tort Committee (a copy of the authorization is attached), approved by the Risk Management Division, and is hereby recommended by this Office. OSS:P863 cc: Cesar H. Odio, City Manager Attn: Aurelio Perez-Lugones Legislative Administrator 93- 19 CA.) z f ra CITY OF MIAM1, FLORIDA INTER -OFFICE MEMORANDUM TO Members of the Torts Committee DATE November 17, 1992 F11E L-92-154 SURIECT Barbara Levenson, Leonard J. Cooperman, and American Political Signs of Florida, Inc. v. FROM Charles C . Mays REFERENcetlty of Miami, et al. Chief Assistant City Attorney Case No.: 92-1394-Civ-Atkins ENCLOSURES. As you may recall, the American Civil Liberties Union Foundation of Florida, on behalf of the above -captioned fij plaintiffs, successfully ontained in federal court a permanent fil injunction against the City with respect to the enforcement of zoning ordinance 925.12(h)(commonly referred to as the "Temporary Political Signs ordinance"). The lawsuit, which was brought under 42 U.S.C. §1983, was premised on violations of the First h' and Fourteenth Amendments. in addition to being entitled to recover actual or nominal ' damages for the section 1983 violation, plaintiffs are also entitled to recover their costs as well as reasonable attorney's fees under 42 U.S.C. S 1983. A judicial determination has not been made with respect to damages. However, plaintiffs' '! attorneys have filed a motion for attorney's fees in the amount of $16,643.00, and costa in the amount of $583.45, for a total of Y $17,226..45. Z- In an effort to minimize to ,settle with the plaintiffs to City Commission approval. substantive law governing away 1988, I strongly suggest tha settlement for the reasons whi the City's exposure, I have offered in the amount of $12,580, subject Based upon my knowledge of the ds of attorney's fees under section t the City Commission approve the ch follow. Although the language of section 1980 provides that the award of attorney's fees is discretionary, federal decisional law clearly requires a district .court judge to award attorney's fees unless there are extraordinary circumstances. Missouri v. Jenkins, 491 U.S. 274 (1989); Texas State Teachers Assn v. Garland Ind. Sch. Dist., 489 U.S. 782 (1989); Blanchard v. Bergeron, 489 U.S. 87 (1989); Pennsylvania v, Delaware Valley Citizens' Counsel, 483 U.S. 711 (1987); Blum v. Stenson, 465 U.S. 886 (1984); Henley v. Eckerhard, 461 U.S. 424 (1983). No such extraordinary circumstances are present in this case, therefore the plaintiffs will in -fact be awarded attorney's fees. 93- 19 Members of the Torts Committee Page -2- a November 17, 1992 The amount of attorneys fees the plaintiffs are entitled to is not affected by the fact that they are represented by a nonprofit legal services organization (for example, in the Blum decision the plaintiffs were represented by the Legal Aid Society of New York, a private nonprofit law office); nor is the fee determined by the amount of money a plaintiff paid or agreed to pay an attorney (Blanchard v. Bergeron). Instead, the fee is determined by a reasonable hourly rate based upon the prevailing market rate, multiplied by the number of hours reasonably expended. In that regard, the two attorneys representing the plaintiffs have filed an affidavit detailing a total of 85.8 hours, at an average hourly rage of $245 per hour. The City cannot credibly dispute the number of hours sworn to by the attorneys, particularly in view of the fact that I expended at least 50 hours to research and evaluate the legal issues presented in the lawsuit. And, those hours do not include the time expended by the other attorneys in this office who were involved in the lawsuit. Moreover, to challenge the reasonableness of the hours expended by the plaintiffs attorneys the City will have to pay a private attorney to review lenghty memoranda to become familiar with the complex free speech and equal protection issues raised by the lawsuit. Because of the complexity of the legal issues and the degree of skill required to successfully present them, it is my considered judgment that the hourly rate is not inherently unreasonable based on the standards prevailing in Dade County. Accordingly, based on the foregoing, it is respectfully submitted that the entire lawsuit - damages, costs and attorney°s fees, be settled for $12,550. PRO D/DISAPPROVED 1 . Qu nn es ZI Le M. F to City Att ' r ay A tant Cit ttorney _ 93- 19 _� 4 Members of the Torts Committee November 17, 1992 Page -3- -- Christopher F. Kurtz �— ,r rren A. sittner Assistant City Attorney `J Assistant City Attorney Theresa L. Girten avi Foreeer Assistant City Attorney Assistant City Attorney 4 Su an S. Chh r it for Department sk anagement M088/CCM/bjr 93- 19 members of the 'torts Committee Page -3°- Christopher F. KurtKurtZ As Assistant City Attorney November 17, 3.992 rren R. Bittner sistant City Attorney /�pJ� E 1 —av—i-d Forestier Jr. Theresa L. Girten t City Attorney Assistant City Attorney Assistant y n� Su an S. Chh r , it for Department sk anagement M088/CCM/bjr 93- 19