Legal Report, June 2021

General Counsel, Keith Davis

1. Carollo v. Platinum Advisors, LLC, 2021 Fla. App. LEXIS 4182 (Fla. 3d DCA 2021). Ethics for elected officials; legislative immunity. 
This case involves a Miami City Commissioner (“Commissioner”) who, during an interim period when not serving as an elected official, entered into a consulting agreement with Platinum Advisors to help secure the required government approvals for the location and construction of an observation wheel at the City’s Bayside Marketplace. While Platinum Advisors began the City’s development approval process, the Commissioner was re-elected, causing him to terminate his consulting agreement with Platinum Advisors and refrain from any future involvement in the approval process. However, at the City Commission meeting where the observation wheel application was heard, the Commissioner suggested to his fellow Commissioners that they either reject the application or “renegotiate its terms in order to increase revenues to the City.” The City Commission ultimately delayed approval of the development application, resulting in significant costs to Platinum Advisors. Platinum Advisors sued the Commissioner for damages and injunctive relief, arguing that his participation in the final City Commission approval was a bad faith violation of his fiduciary and contractual duties. The Commissioner moved to dismiss, arguing absolute legislative immunity because his actions occurred in his capacity as an elected official.

The trial court denied the Commissioner’s motion to dismiss. On appeal, however, the Third District Court of Appeals (“DCA”) agreed with the Commissioner and reversed the trial court’s decision. Citing the well-established principle that elected officials enjoy absolute immunity from civil suit when acting in a legislative capacity, the Third DCA had “little difficulty” concluding that the Commissioner, when participating in a duly noticed item on the City Commission’s agenda, was engaged in conduct that fell firmly within the sphere of legislative activity.  This case reaffirms the legal precedent that an elected official is entitled to civil suit immunity from a former client for public comments or discussions made in his or her legislative capacity about a former client’s development application, despite the potential for these comments or discussions to be viewed as unethical or in bad faith.

Applying the Palm Beach County Code of Ethics, the Commissioner would not be strictly prohibited from participating or voting on the development application, because the Commissioner entered into the consulting agreement prior to his most recent tenure as a public official and terminated it immediately after his election. See RQO 17-013 (Ethics Opinion prohibiting County Commissioner from participating in or voting on a matter which would result in a special financial benefit to any of the persons or entities specified in Sec. 2-443(a)(l-7), Palm Beach County Code, but holding that a former employer or supervisor is not one of those persons or entities).

2. State v. Coleman, 2021 Fla. App. LEXIS 6497 (Fla. 2d DCA 2021). Arrests; municipal ordinances.
This case involves the arrest of Mr. Coleman for violating the City of Sarasota’s (“City’s”) ordinance prohibiting possession of an open alcohol container on public property. Police searched Mr. Coleman following his arrest and found illicit drugs and paraphernalia on his person. Mr. Coleman moved to suppress the drugs and paraphernalia as evidence at trial, arguing that the police’s search incident to his arrest under the City’s open container ordinance was illegal because the City’s ordinance regulated noncriminal conduct. The trial court granted Mr. Coleman’s motion, relying on previous Florida case law which states that a police search incident to arrest is illegal when a person is charged with violating a municipal ordinance that is “noncriminal in nature.” Thomas v. State, 614 So. 2d 468 (Fla. 1993). The Second DCA reversed on appeal, concluding that the City’s open container ordinance was criminal in nature by comparing the City’s open container ordinance with ordinances in similar cases, as well as the penalties imposed for violation. For example, violation of the City’s open container ordinance was punishable by up to 60 days in jail, while similarly-examined ordinances regulating bicycle traffic and park hours only imposed monetary fines. This case continues existing Florida law that police may not search a person charged with violating a noncriminal municipal ordinance, but also clairifes that the penalties imposed can help to distinguish between criminal and noncriminal ordinances.