City of Tampa v. Addison

• Decision Date: 08 August 2007
• Docket Number: No. 2D06-3168.,2D06-3168.
• Citation: 979 So.2d 246
• Parties: CITY OF TAMPA, individually, and as representative of all other Florida municipalities similarly situated, Appellant, v. Michael C. ADDISON and Richard T. Petitt, for themselves and all others similarly situated, Appellees.
• Court: Florida District Court of Appeals

979 So.2d 246

CITY OF TAMPA, individually, and as representative of all other Florida municipalities similarly situated, Appellant, v. Michael C. ADDISON and Richard T. Petitt, for themselves and all others similarly situated, Appellees.

No. 2D06-3168.

District Court of Appeal of Florida, Second District.

August 8, 2007.

David L. Smith, City Attorney, and Jerry M. Gewirtz, Chief Assistant City Attorney, Tampa, for Appellant.

F. Wallace Pope, Jr., of Johnson, Pope, Bokor, Ruppel & Burns, LLP, Clearwater; Stephen A. Scott of Stephen A. Scott, P.A., Gainesville; Herbert T. Schwartz of Bailey & Galyen, Houston, TX; Joseph C. Moffa of Moffa & Gainor, P.A., Fort Lauderdale; and Brett Alan Panter and David Sampedro of Panter, Panter & Sampedro, P.A., Miami, for Appellees.

Alyssa A. Ruge, Assistant County Attorney, New Port Richey, for Amicus Curiae Pasco County.

Monterey Campbell, Hank B. Campbell, and Kristie Hatcher-Bolin of Gray Robinson, P.A., Lakeland, for Amici Curiae The Florida League of Cities, Inc.; City of Coral Gables, Florida; City of Gainesville, Florida; Leon County, Florida; and the Florida Association of Counties.

WALLACE, Judge.

The City of Tampa (the City) appeals a nonfinal order certifying a bilateral class action.¹ The circuit court entered the order in an action filed by Michael C. Addison and Richard T. Petitt (the Appellees). The Appellees are members of The Florida Bar. Each Appellee maintains an office for the practice of law within the jurisdiction of the City. In their action, the Appellees challenged the constitutionality of the City's occupational license tax as applied to attorneys practicing law in Tampa.

Once the action was at issue, the Appellees filed a motion seeking the certification of two classes: (1) a plaintiff class consisting of all lawyers subject to local occupational license taxes in all municipalities and counties within the State of Florida and (2) a defendant class consisting of all municipalities and counties within the State of Florida that levy such occupational license taxes on lawyers. After an evidentiary hearing on the motion, the circuit court certified the plaintiff class under Florida Rule of Civil Procedure 1.220(b)(2) and (b)(3), and it certified the defendant class under rule 1.220(b)(1)(A).

On appeal, the City challenges the certification of both the plaintiff class and the defendant class on multiple grounds. All of the issues raised by the City are without merit, and we affirm the order of class certification. However, we write to address several of the City's arguments.

I. THE FACTS AND PROCEDURAL BACKGROUND

The City imposes on any person who maintains a permanent location or branch office within its borders an occupational license tax for the privilege of engaging in business. See Tampa, Fla., Code of Ordinances, ch. 24, art. V (Occupational License Tax), § 24-101, et seq. The tax applies to attorneys at law, and the current amount of the tax assessed annually against each attorney is $289.40. § 24-120(0222)(d). The City enacted and enforces its ordinance under the enabling authority of chapter 205, Florida Statutes.

In addition to the City, more than 200 municipalities and thirty-five counties throughout the State of Florida currently have ordinances that impose occupational license taxes on attorneys. All of these ordinances have been enacted under the authority of chapter 205. However, the ordinances differ substantially in the amount of the tax, the method by which the amount of the tax is determined, and the options available to the taxing authority for enforcement if the tax is not paid. Moreover, some of the ordinances contain provisions that apply specifically to attorneys, while others apply generally to "professionals" or to all businesses. Although a detailed review of the provisions of these various ordinances is obviously beyond the scope of this opinion, it is interesting to note that the City's tax on attorneys is the highest in the state. At the other end of the scale, the lowest occupational license tax imposed on attorneys in the state is a mere $35.²

As members of The Florida Bar with offices for the practice of law within the City of Tampa, the Appellees are subject to the payment of the City's occupational license tax. On June 10, 2003, the Appellees filed a class action complaint against the City. The gist of the Appellees' complaint is as follows: The determination of the conditions under which a person may practice law and the regulation of lawyers who engage in the practice of law within the State of Florida are vested exclusively in the Supreme Court of Florida under article V, section 15, of the Florida Constitution of 1968, as amended. Accordingly, the City's ordinance operates as an unconstitutional precondition to or regulation of the practice of law in violation of article V, section 15. In the alternative, the Appellees claimed that chapter 205 does not authorize municipalities and counties to levy an occupational license tax on persons engaged in the practice of law within their respective jurisdictions. The Florida Constitution preempts all taxes to the state except ad valorem taxes unless authorized by general law. See art. VII, § 9(a), Fla. Const. of 1968. As an unauthorized local tax, the City's ordinance is thus unconstitutional as applied to attorneys.

The Appellees' complaint alleged claims for declaratory and injunctive relief, money had and received, and unjust enrichment. In addition to seeking class certification, the Appellees requested (1) a declaration that the City's tax and similar taxes imposed by the defendant class members are an unconstitutional regulation of the practice of law, (2) judgment in favor of the Appellees and the plaintiff class members for a refund of all taxes paid under such ordinances for the four years preceding the filing of the complaint, (3) an injunction against the City and the defendant class members prohibiting the enforcement of the City's ordinance and similar ordinances against attorneys, and (4) an award of attorney's fees and costs. The City moved to dismiss the complaint, but the circuit court denied the motion. The City then filed an answer that denied many of the complaint's material allegations and that raised a number of affirmative defenses.

II. THE CLASS CERTIFICATION ORDER

In August 2005, the Appellees filed their motion for class certification with a supporting memorandum. Approximately six months later, the circuit court conducted an evidentiary hearing on the motion. Prior to the hearing, the City filed a forty-five-page memorandum of law in opposition to the motion. The City's memorandum outlined its opposition to the motion in considerable detail. In pertinent part, the City asserted that it lacked the ability to adequately protect the interests of each member of the proposed defendant class.

At the beginning of the hearing on the motion for class certification, the circuit court heard a motion in limine filed by the Appellees. In their motion, the Appellees requested an order prohibiting the City from introducing into evidence or commenting on the amount of income earned by each Appellee from the practice of law. The Appellees contended that the amount of income they earned from their respective law practices was irrelevant to any issue relating to certification of either of the proposed classes. In response, the City argued that evidence about the Appellees' incomes was relevant to prove that the amount of the City's occupational license tax was a very small percentage of the substantial incomes that the Appellees earned from their successful legal practices. Furthermore, the City claimed that this information was "germane to a lack of support for this lawsuit by the members of the Plaintiff class and militate[d] against a finding of `commonality,' `typicality,' and `representation of the interests of each member of the Plaintiff class,' all of which are relevant to determining whether to certify a class."³ The circuit court granted the motion in limine and prohibited the City from introducing into evidence or commenting on the amount of the Appellees' incomes from their respective law practices.

After the conclusion of the evidentiary hearing, the circuit court entered the class certification order under review. In the order, the circuit court certified a plaintiff class defined as:

All persons who, on or after June 10, 1999, were duly admitted to practice law in the State of Florida by the Florida Supreme Court, and who maintained or maintain a permanent business location or branch office for the practice of law at a location subject to the jurisdiction of either the City of Tampa or of any other municipality that is a member of the defendant class certified in this action, or who practiced or practices law in any Florida county that is a member of the defendant class certified in this action, and who either paid or had paid on his or her behalf an occupational license tax or fee to any such municipality or county.

The circuit court also certified a defendant class defined as:

All incorporated Florida municipalities and all Florida counties that, at any time on or after June 10, 1999, had or now have, and enforced or now enforce, any ordinance under which it imposed or imposes a municipal or county occupational license tax or fee authorized by Chapter 205, Florida Statues [sic], on any attorney who maintained or maintains a permanent business location or branch office for the practice of law at a location subject to the municipality's jurisdiction (as to municipalities) or engaged or engages in the practice of law at a location subject to the county's jurisdiction (as to counties).

The circuit court certified the plaintiff class under rule 1.220(b)(3) with regard to the refund claims and under rule 1.220(b)(2) with regard to the claims for declaratory and injunctive relief. The defendant class was certified under rule 1.220(...