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Date: 08-11-2007
Case Number: 2D06-3168
Judge: Walalce
Court: Florida Court of Appeals, Second District on appeal from the Circuit Court of Hillsborough County;
Plaintiff's Attorney:
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, Texas; 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.
Defendant's Attorney: David L. Smith, City Attorney, and Jerry M. Gewirtz, Chief Assistant City Attorney, Tampa, for Appellant.
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.
Description:
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.
* * *
Outcome: UnknownFor these reasons, the City has not demonstrated that the circuit court abused its discretion in certifying either the plaintiff class or the defendant class. Accordingly, we affirm the order of class certification. Affirmed
Plaintiff's Experts: Unknown
Defendant's Experts: Unknown
Comments: None