Legal Report, August 2019

General Counsel, Keith Davis

1.         Fla. Retail Fed’n, Inc. v. City of Coral Gables, 2019 Fla. App. LEXIS 12501, 2019 WL 3807999 (3rd DCA 2019). Preemption, plastic bags.
In 2016, the City of Coral Gables ("City") passed an ordinance prohibiting food service providers and stores from selling or using expanded polystyrene (styrofoam) containers. The Florida Retail Federation ("FRF") subsequently filed suit, seeking a declaration that the City's ordinance was preempted by §§ 403.708(9), 403.7033, and 500.90, F.S. The circuit court sided with the City, concluding that the statutes preempting local government regulation of styrofoam and plastic bags were unconstitutional for reasons of vagueness, arbitrariness, and violating the Home Rule Amendment to the Florida Constitution. On appeal, the Third District Court of Appeals reversed holding first that that §§ 403.708(9), 403.7033, and 500.90, F.S. passed constitutional muster; and second that the plain language within these statutes validly preempted the City’s ordinance with respect to regulation of styrofoam containers. The City proposed several arguments against the constitutionality of §§ 403.708(9), 403.7033, and 500.90, F.S, all of which were rejected by the Court. The City first argued that § 500.90, which explicitly preempted local ordinances after January 1, 2016 from regulating polystyrene, was an impermissible special law aimed only at the City. The Court concluded that, while the City may have been the only municipality affected by § 500.90 at the time of the statute’s effective date, the statute did not single out the City or Miami-Dade County as an impermissible special law. In addition, the City raised the argument that § 500.90 was unconstitutionally vague because “the Legislature delegated preemption authority to the Department of Agriculture . . . without defining guidelines or standards for the exercise of the Department's discretion in implementing the statute." However, the Court found that the language of § 500.90 did not actually delegate any legislative or rulemaking authority to the Department of Agriculture; instead, this delegation of authority was found in § 500.09(4), F.S., a separate section of Ch. 500 titled “Rulemaking; analytical work.” The City raised a similar nondelegation argument for §§ 403.708(9) and 403.7033, maintaining that these sections violated the nondelegation doctrine because they "lack the necessary standards and guidelines for implementation, rendering them unconstitutionally vague . . . ." Again, the Court found no actual delegation of legislative authority within §§ 403.708(9) and 403.7033, and accordingly held that “[b]ecause the statutes delegate no authority, they cannot be unconstitutional pursuant to the nondelegation doctrine.” Finally, the City claimed that § 500.90 created impermissible classification schemes “not reasonably related to the purpose of legislation, rendering the statute arbitrary and capricious." The Court reasoned that the only classification scheme found in §500.90 was related to whether the county ordinance was enacted before or after January 1, 2016. The Court then concluded that this classification, which simply set the date after which local ordinances regulating polystyrene would be preempted, was not a classification voidable for arbitrariness.

2. Johnson v. Ocaris Mgmt. Group, Inc., Case No. 18-CV-24586-PCH (S.D. Fla. 2019). Ethical, Attorney’s Fees.
This case concerns a plaintiff’s suit against a gas station owner, alleging a 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 station pumps. As noted by the U.S. District Court, this 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 violation of the ADA (“gas pump suits”). In a recent court order denying the plaintiff’s motion for final default judgment, the District Court expressed “substantial concerns,” both about the viability of the Plaintiff’s claims and about the reasonableness of the attorney’s fees and costs requested. In evaluating the Plaintiff’s ADA claim on the merits, District Court described the Plaintiff’s collective 26 lawsuits as a “deliberate and continuous assertion” of frivolous claims that “not only wastes the Court’s time and Defendants’ resources, but also constitutes a blatant abuse of the judicial system as well.”  In its court order, the District Court also addressed what it considered “its greatest concern – [Plaintiff’s] request for attorney’s fees and costs.” In general, the Court noted that the near $8,000 requested for attorney’s fees and costs greatly outsized the time actually spent by the Plaintiff’s counsel on what the Court calls an “unremarkable, boilerplate case.” Because the Plaintiff’s attorney had already brought identical gas pump suits against other parties, and given the repetitive nature of filing “boilerplate” complaints and motions, the court found that the attorney was allowing for “gross time inflation” on billing summaries for the time actually required to complete the tasks.  In addition to grossly over-estimating time requirements for drafting boilerplate complaints and motions, Plaintiff’s counsel in this case also billed at an attorney-level hourly rate for “clerical-type tasks,” such as e-filing court documents. As the Court explained, it was reasonable to assume that a lot of these billed tasks “could and should be performed by a paralegal, secretary, or junior associate, not a $500 per hour attorney.” In concluding its order denying Plaintiff’s motion for final default judgment, the District Court re-classified the plaintiff’s claim as “patently frivolous,” and denounced the request for attorney’s fees and costs as “not credible, [reflecting] blatantly exaggerated overbilling, . . .misleading,” and “an abuse of the judicial process.”