Fort Walton Beach Council agenda — 08-08-2006 ‎(executive)‎ — reading text

Toni L. Craig Attorney at Law Memorandum of Advice Date: 3- Aug- 06 To: Mayor & Council CC: City Manager City Clerk From: City Attorney Re: Executive Session Re: Michael C. Addison & Richard T. Petit, individually and for all other attorneys similarly situated v. City of Tampa, individually and as representative of all other municipalities similarly situated; Hillsborough County Circuit Court Case 03- CA-5425, Class Representation. Background: Mr. Addison and Mr. Petit have filed a class action law suit in Hillsborough County contesting Tampa' s and all similar ordinances which impose an occupational licensing tax on attorneys. The two complaining attorneys allege that imposing an occupational tax on attorneys is a violation of the doctrine of separation of powers as determined by the Florida Supreme Court in Bush v. Schiavo, 885 So. 2d 321, 329- 32 ( Fla. 2004). The City of Fort Walton Beach has been named in the suit as a class defendant city. The Tampa City Attorney has asked for involvement by all named defendant cities. I need direction from the Council regarding the City's involvement in the suit. I recommend that Council authorize me to monitor the suit and provide assistance to the Tampa City Attorney as requested by him during the suit. 244 Racetrack Rd NE Fort Walton Beach FL 32547- 1866 850) 243- 6969 Fax: ( 850) 244- 8929 Email: attycrg@aol.com  CITY OF TAMPA Pam Iorio, Mayor OfBee of the City AttorDey David Smith L.. City Attoruey June 27. 2006 VIA E- MAIL WITH ATTACHMENTS CITY ATTORNEYS COUNTY ATTORNEYS Re: Notice to Cities and Counties in the State of Florida of the Court' s Ruling on Plaintiffs' Class Motion to Certify Classes Dear City and County Attomeys: In June, 2003 the City of Tampa was sued individually, and as a representative of other Florida municipalities and counties, in connection with a constitutional challenge to the occupational license tax paid by attorneys in the State The lawsuit seeks,ilfter alia, ( 1) ofFIorida.. a judgment declaring unconstitutional the occupational license tax imposed on attorneys, and ( 2) the entry of judgment requiring a refund of all occupational license taxes paid by attorneys during the four years preceding the filing of the lawsuit and subsequently paid fees. On June 21 t 2006, the trial court entered an Order granting the Plaintiffs' Motion to Certify both the Plaintiff Qass and Defendant Class ( A copy of the Court' s Order is attached hereto). The Plaintiff Class consists of more than 50,000 members of the Florida Bar located throughout the State of Florida; and the Defendant Class consists of at least 200 cities and at least 35 counties within the State of Florida which have enacted an occupational license tu.pursuant to legislative grant of Chapter 205, Florida The City of Tampa will be filing an appeal ftom Statute.. the Trial Court' s Order Granting Class Certification. The City of Tampa wanted to make you aware of this development as soon as possible so that you could determine ( 1) whether you wish to file a Motion for Leave to File Amicus Curiae Brief in support of the City, and ( 2) whether you wish to intervene in the action at the trial level after the of the disposition appeal.Please note that,if you wish to file a Motion for Leave to File Amicus Curiae Brief:it should be served within five days of service of the City' s Initial Brief: At this time, the Qty' s Initial Brief will be due during the last week of July, 2006 and the City will be requesting an extension of 30 days. For your information, we are attaching hereto a listing of those cities and counties that have been identified in Plaintiffs' First Amended Complaint as allegedly being members of the Defendant Class. The Plaintiffs may also take the position that additional cities and counties are also members of the Defendant Class. 315 East Kennedy 5tb Floor . Tampa,Florida 33602 . ( 813) 274-8996 · FAX: (813) 274-8809 Blvd.., rampaEiov f4...: www.tampagov.net June 27, 2006 ALL CITY ATTORNEYS ALL COUNTY ATTORNEYS Page 2 Please feel tree to call the City Attorney, David Smith. orChie! Assistant City Attomey, Jerry Gewirtz, at 274- 8842 ( who is handling the litigation in this matter), if you have any questions or comments. Thank you for your consideration in this matter. Sincerely yours, David L. Smith City Attorney t \ ---'''''\. t'~" - e.---~_ j --~ . '~ Jerry M. Gewirtz Chief Assistant City Attorney JMGlmad Enclosure K:\Addison\ Co~ ence\Lat omeys. doc  IN THE CIRCUIT COURT OF THB THIRTEENTH JUDICIAL CIRCUIT IN AND FORHILLSBOROUGH COUNTY, FLORIDA MICHAEL C. ADDISON and RICHARD T. PETITT, for themselves a~d all others similarly situated, CASE NO: 03- 5425 Plaintiffs, DIVISION: E vs- JUDGE LITTLE CITY OF TAMPA, FLORIDA, ind.i vidually and as representative of all other Florida municipalities similarly situated, CLASS BPRESENTATION Defendant. I ORDER ON PLAINTIiTS' MOTION TO CERTIFY CLASSES This matter is before the Court on the Plaintiffs' motion to certify two classes: a class of lawyers subject to local occupational license taxes ( the Plaintiff class), and a class of municipalities and counties who levy such the Defendant class). The parties are well occupat iona1 license taxes ( with the background and procedural history of this action and, acquainted therefore, the Court turns directly to the analysis, findings and decisions material to the class certification issue. I. STANDARD OF UVIEW The standard for determining whether a plaintiff may maintain a class action is not whether he will ultimately prevail on his claim. Kirkpatrick v. 1 J. C. D. Bradford . f Co., 827 F. 2d 718, 722- 23 { 11th Cir. 1987). Kirkpatrick teaches thdt it is improper for a court to inquire or consider the merits of of action when considering a motion for class the underlying cause certification. Fabricate v. Sears Roebuck, 202 F. R. D. 310, 313 ( S. D. Fla. 2001) limiting the scope of the court' s inquiry to the allegations of the complaint 1 Fla. ft. Civ. P. 1.220 is based on 23, whic.h governs class Fed. FLCiv. P. act.ions. See Comnuttee Notes to F'la. R. Civ. V. 1. 220: Broin v. Phillip s.. also companies, Inc., 641 So. 2d 888, 889 Horri.!; Fla. JdDCA 1994). Accordingly, Florida courts " follow the federal construction and application Powell v. River R.anch Property Owners . 4ss' n., 522 So. 2d69, 70 ( Fla. 2d where app.ropriate." Inc., DCA 1988). Case No 03- 5425 Pagel of 16 Pages and not considering the merits of the claims}; see Domestic Air Transport Antitrust Litigation, 137 F. R. D. 667 ( N. D. Ga. 1991i ( judicial policy of not the merits of the cause of action in adjudicating class considering certification motions acts to protect both plaintiff and defendant). However, the class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff' 5 cause of action." Coopers & Lybrand v. LivesaYt 431 U. S. 460, 463 ( 1978). It is inescapable that in some cases there will be an overlap between the demands of Rule 23 and whether the succeed the merits."