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Filing # 42126280 E-Filed 05/31/2016 01:18:09 PM
IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT
IN AND FOR CHARLOTTE COUNTY, STATE OF FLORIDA
CIRCUIT CIVIL
CAPPY JOINER and SALLY
JOINER,
Plaintiffs, CASE NO.: 16-CA-365
Vv.
GASPARILLA ISLAND BRIDGE
AUTHORITY, an authority created
by the Florida Legislature,
Defendant.
/
PLAINTIFFS AMENDED SECOND AMENDED COMPLAINT FOR DECLARATORY
RELIEF, INJUNCTIVE RELIEF, COMPENSATORY DAMAGE AND ATTORN S
FEES AND COSTS
COME NOW, the Plaintiffs, James “Cappy” Joiner and Sally Joiner (herein after referred
to as Plaintiffs), by and through their undersigned attorneys and files their Amended Second
Amended Complaint for Declaratory Judgment, Injunctive Relief, Compensatory Damages and
Attorney’s Fees and Costs against the Defendant, Gasparilla Island Bridge Authority (herein
after referred to as GIBA) and as grounds therefore alleges:
JURISDICTIONAL ALLEGATIONS
1 The Circuit Court of Charlotte County has exclusive jurisdiction in determining
the legality of a bridge toll devised by GIBA pursuant to Const. Art. 5, 2(c) (3); Fla. Stat.
26.012(2) (e).
2. The Circuit Court of Charlotte County has jurisdiction to determine whether
GIBA’s prepaid toll structures violate Article 1 Section 9 of Florida State Constitution and,
jurisdiction pursuant 42 USC 1983, Amendment 14 Due Process Clause of the United States
Constitution by denying the Plaintiffs’ Due Process of Law.
3 The Circuit Court of Charlotte County has Jurisdiction to make a factual fining of
fact and law as to Plaintiffs’ attorneys’ right to reasonable attorney fees and costs pursuant to 42
USC 1988 their Declaratory Relief Action
4 The Circuit Court of Charlotte County has jurisdiction to grant Plaintiffs
Injunctive relief pursuant to the Court’s right to hear and resolve causes of action seeking
equitable relief and which have no adequate remedy at law.
5 The Circuit Court has jurisdiction to grant Plaintiffs Declaratory Relief pursuant
to Florida statute 86.011.
STANDING ALLEGATIONS
The Plaintiffs have standing to bring the various causes of action in this case
because:
Plaintiffs are residents of the State of Florida with a right to free access of all
public lands owned by the State of Florida and GIBA’s bridge is the only ingress
and egress road onto Gasparilla Island.
Plaintiff, James Joiner, is required to attend meetings throughout the year on
Gasparilla Island as President of Boca Grande Fishing Guide Association.
Plaintiffs are residents of the Taxing District under the taxing authority of GIBA
as residents of Charlotte County.
Plaintiffs have a bona fide, actual, present and practical need for a declaration as
to the legality of GIBA’s prepaid tolls. May v. Holley, 59 So.3d 636 (Fla. 1952);
Okaloosa Island Leaseholders Ass’n, Inc. v Okaloosa Island Auth., 308 So.2d
120, 122 (Fla. Dist. Ct. App 1975).
Plaintiffs have suffered or will suffer a special injury which is the taking of their
monies without GIBA providing them the actual ability to use the tolls for which
they paid. Gargona v Lee County Board of County Commissioners, 921 So.2d
661 (Fla 2"? DCA 2006)
Plaintiffs have standing to bring a violation of Due Process under Article 1,
Section 9 of the Florida Constitution and the Fourteenth Amendment of the
United States Constitution as citizens of the State of Florida and the United States
in that they have been denied their property without Due Process of Law.
UNDISPUTED FACTS
1 Defendant, GIBA, is a special purpose taxing district of the State of Florida,
created by Chapter 96-507, Laws of Florida. Both parties agree any and all power granted to
GIBA is contained in its enabling legislation which states in relevant part as follows:
Section 3. PURPOSES.—
(1) The authority is created for the purpose of acquiring, constructing,
reconstructing, financing, owning, regulating, franchising, and otherwise having
complete authority with respect to the Gasparilla Island Bridge and causeway within the
territorial limits of Charlotte County, areas adjacent thereto. It is further the purpose of
the Act to repose in the authority all powers with respect to operating, maintaining,
repairing and improving the bridge and causeway, including the power fo set bridge tolls
rates and collect bridge tolls... (emphasis added)
Section 6. POWERS AND DUTIES OF AUTHORITY.—
dq) The authority shall have the following power and duties, in addition to and
supplementing other powers granted in this act and powers granted to authorities by
general law:
(2) To fix, modify, charge and collect toll rates and user fees from persons
Sor the use of the bridge and causeway system at such levels as the authority deems
appropriate regardless of the costs associated with the bridge and causeway
system. ..(emphasis added)
2 As of November 12, 2012 GIBA offered the following toll structure for drivers
using the bridge:
Cash toll $6.00 per trip
Prepaid Annual Pass (unlimited trips) $780.00
Prepaid Discounted Pass for up to 25 trips $97.50
Prepaid Non-discounted Pass for up to 10 trips $60.00
3 Each of the three above referenced prepaid passes would expire 12 months from
purchase date unless the pass holder replenished the pass prior to the expiration of the 12 month
period which would then replenish the pass for another 12 month period. (Verrico Dep. Tr. 16:6-
21) (Defendant Gasparilla Island Bridge Authority’s Motion for Final Summary Judgment
Exhibit “A” and attached hereto as Plaintiffs’ Exhibit “A”)
4 GIBA disclosed the fact all prepaid toll structures would expire within the 12
month period from purchase date unless replenished for another 12 month period by advertising
said facts in local publications and newspapers, (Verrico Dep. Tr. 17:9-20) (Exhibit “B”)
5 The terms of the above prepaid toll structures were articulated on GIBA’s website
as follows:
“A Gasparilla Island Bridge Authority bridge pass is good for one year from the
date of purchase. Any trips not used within that year will be forfeited...” (A true
and correct copy of same is attached hereto as Plaintiffs’ Exhibit “C”) (emphasis
added)
6 The terms of the above prepaid toll structures were articulated on GIBA’s
application for purchase of prepaid tolls as follows:
GIBA TOLL PASS TERMS AND CONDITIONS I am applying for a Gasparilla
Island Bridge Authority toll pass. I certify that the information provided herein is
accurate to the best of my knowledge. ONCE MONEY HAS BEEN PUT INTO
MY ACCOUNT I UNDERSTAND AND ACCEPT THAT NO REFUND OR
4
CREDITS WILL BE ISSUED UNDER ANY CIRCUMSTANCES... (emphasis
added)
:-.]_ understand that my account will be automatically canceled any money
emaining in the account will be forfeited one year from the date of
purchase...(emphasis not added)
«-- THE GASPARILLA ISLAND BRIDGE AUTHORITY RESREVES THE
RIGHT TO CHANGE, DELETE, LIMIT OR MODIFY AT ANY TIME
THE TERMS OF THIS AGREEMENT WITHOUT ANY
NOTICE...(emphasis added)
...By signing above I verify I have read and understand these disclosures)
(emphasis not added) (A true and correct copy of same is attached hereto as
Plaintiffs’ Exhibit “D”)
7 The terms of reapplying for a prepaid toll pass is contained in GIBA’s re-
application form states as follows:
a. ACCOUNTS WILL BE AUTOMATICALLY CANCELLED AND ANY
MONEY REMAINING IN THE ACCOUNT WILL BE FORFEITED TO
GIBA ONE YEAR FROM THE DATE OF LAST PURCHASE.** (emphasis
not added) (A true and correct copy of same is attached to as Plaintiffs’ Exhibit
“E”)
8 The Plaintiff, Cappy Joiner, purchased his discounted prepaid toll within the 12
months immediately preceding July 27, 2013.
9 The Plaintiff, Cappy Joiner did not sign the GIBA’s application for purchase of
prepaid tolls referenced in paragraph 6 above.
10. The Plaintiff, Cappy Joiner discovered his discounted prepaid toll had been
deactivated on May 28, 2014 with $ 58.00 of tolls value still unused.
11. The Plaintiff, Sally Joiner’s discounted prepaid card was deactivated on July 2,
2014 with an unidentified amount of value remaining on her prepaid toll pass.
12. On May 28, 2014, after his prepaid toll card became deactivated, Plaintiff, Cappy
Joiner was advised the only process by which his discounted toll card would be reactivated was
to purchase another discounted prepaid toll for $97.50.
5
13. On May 28, 2014, Plaintiff, Sally Joiner, was advised her prepaid toll card would
expire in two months and the only way she could prevent the deactivation of her card and the
forfeiture of her remaining funds was to purchase an additional prepaid toll for $97.50.
14. The GIBA board member who proposed the automatic forfeiture changes to the
prepaid tolls was Julius Zar Frager (herein after referred to as Frager).
15. Board member Frager states GIBA acquires ownership of the money from anyone
who purchases the prepaid tolls as of the date the purchaser pays for a prepaid toll whether the
purchaser ever uses the prepaid toll card.
Julius Frager Deposition Pg. 9-11
All Q’s are being asked by Attorney for Plaintiffs’ and A’s are by Julius Frager.
Q Do I understand, then, Mr. Frager, that your position is that the discount
system is what justifies the forfeiture of unused tolls?
Mr. Stanley Object to form. You can answer.
A Again, I don’t look at it as a forfeiture. I look at it as you paying a set
amount for one year to use up to so many things, and that’s your privilege to use it
for those amounts of times. At the end of the year, if you’ve used it so be it. If
you haven’t used it, so be it. You’ve purchased the opportunity and rights to
cross the bridge for so many times.
Q If you don’t use it all, what happens to the balance remaining in one’s
account?
Mr. Stanley: Object to the form. You can answer.
A You have paid the Bridge Authority for the right to be able to cross the
bridge. At the end of you time period, the money is just like it was when you
paid it: It belongs to the bridge. It doesn’t matter if it was at the end of the time
or at the beginning when you paid it. When you paid it, the money belongs t
the Bridge Authority and what _you’ve received is the right to cross the
bridge...”
Q. Okay, you characterized the pass as a right of the holder of that pas to cross
the bridge?
A Correct. (Deposition of Julius Zar Frager) (emphasis added) Plaintiffs’
Exhibit “F”)
16. The GIBA Board unanimously passed the changes for the automatic forfeiture of
all prepaid tolls on November 12, 2012.
17. The GIBA Board never actively sought the advice of their attorney to determine
the legality of any of the prepaid toll changes nor did they request a formal opinion letter from
counsel as to the legality of the toll structure.
18. The GIBA Board’s advising attorney Robert H. Berntsson, Esq., was never
formally asked by GIBA, nor did he write any opinion letter as to the legality of GIBA’s Board’s
proposed changes to the prepaid tolls. Pg. 5-7 Lines 2-6 (Deposition of Robert H. Berntsson,
Esq., attached hereto as Plaintiffs’ Exhibit “G”)
19. GIBA has sold thousands of these prepaid tolls since their inception in 2012. (See
attached email dated February 25, 2016 between attorney Akin and attorney Cannella wherein
attorney Akin states thousands of the reapplication for prepaid tolls have been signed) (See
attached Plaintiffs’ Exhibit “H”)
20. There is a need for the Court to enter a Declaratory Judgment determining the
legality of GIBA’s prepaid tolls because Plaintiffs allege GIBA has exceeded the authority of its
enabling legislation as defined in Chapter 96-507 Law of Florida.
DISPUTED FACTS
21. There is a need for the Court to enter a Declaratory Judgment determining
whether GIBA has violated the Due Process rights of the Plaintiffs, and all other purchasers of
the GIBA’s prepaid toll passes, under Amendment 14 of the United States Constitution and
Article 1, Section 9 of the Florida State Constitution because of GIBA’s position that the monies
paid to them for the purchase of a prepaid toll, becomes fully vested as their property upon
purchase constitutes a taking without Due Process of Law under the Florida State and Federal
Constitutional.
22. Long established statutory law interpretation states; expressio unicus est exclusion
alterius, which holds where a statute enumerates the things on which it is to operate...it is
ordinarily to be construed as excluding from its operation those not expressly mentioned.”
Thayer v. State, 355 So. 2d 815 (Fla 1976).
23. Nothing in GIBA’s enabling legislation allows it to conduct forfeitures or
confiscate purchaser’s money at the time of purchase but rather specifically allows GIBA to set
and collect tolls.
24. Tolls are similar to user fees. “User fees” share common traits that distinguish
them from taxes: they are charged in exchange for a particular governmental service which
benefits the party paying the fee in a manner not shared by other members of society, and they are
paid.
25. The Court is obligated to “give considerable deference to the decision of the
political body setting the toll rate”... in determining whether a rate is unreasonable, “...but, if the
rate were so high as to be confiscatory, it would be unreasonable.” Gargona v. Lee County Board
of County Commissioners, 921 So.2d (Fla 2"! DCA 2006). In the instant case GIBA claims
ownership of prepaid toll pass monies at purchase, regardless if the purchaser ever uses the pass,
which in essence amounts to a confiscation ab initio by GIBA.
26. Plaintiffs have hired their attorneys to represent them and their attorneys are
entitled to a fair and reasonable attorney’s fees and costs pursuant to the power granted this
Court to award reasonable attorney’s fees under 42 USC 1988.
WHEREFORE the Plaintiffs request the entry of an Order which states as follows:
1 The Court makes the following Findings of Fact and Adjudications of Law:
FINDINGS OF FACT
The Court has exclusive jurisdiction to determine the legality of tolls pursuant to
Article (v) of the Constitution of the State of Florida. Gargona v. Lee County
Board of County Commissioners, 921 So.2d (Fla 24 DCA 2006).
The Court has Jurisdiction under 42 USC 1983 to determine Plaintiffs’ claims of
violation of Due Process under the Fourteenth Amendment of the Constitution of
the United States.
The Plaintiffs have standing to bring their various causes of action against
Defendant.
GIBA, is a special purpose taxing district of the State of Florida, created by
Chapter 96-507, Laws of Florida. Both parties agree any and all power granted
to GIBA is contained in its enabling legislation.
GIBA’s has the power to fix, modify, charge and collect toll rates and user fees
from persons for the use of the bridge and causeway system in addition to and
supplementing other powers granted in the Act and powers granted to authorities
by general law.
GIBA argues because the enabling legislation does not specifically limit GIBA’s
tight to forfeit unused tolls or claim a full vested interest in monies paid for these
tolls at time of purchase GIBA has these rights. GIBA’s position therefore,
means the enabling legislation grants them the authority to claim ownership of
prepaid tolls monies at the time of purchase or to forfeit all prepaid toll monies
not used within the year. Such a position is untenable. Neither the language nor
plain reading of the enumerated powers of GIBA’s enabling language as
contained in 96-507 Laws of Florida, nor applicable case law can be reasonably
interpreted to grant GIBA the right to conduct forfeitures as it does in three of its
current prepaid pass structures nor claim a fully vested interest in the prepaid toll
monies at time of purchase.
GIBA has clearly exceeded its powers granted it under Chapter 96-507, Laws of
Florida.
GIBA has also violated the Due Process rights of the Defendants, and all others
similarly situated, by conducting what amounts to a “taking” of property without
Due Process of Law. Notice alone is not sufficient to constitute Due Process.
Due Process under the Constitution of Florida and the United States requires
GIBA provide the purchasers an opportunity to be heard on the issue of the taking
of their property which taking occurs at the time of purchase.
GIBA claims the Plaintiffs’ money became the property of GIBA immediately
upon Plaintiffs purchasing any of the three prepaid passes. GIBA asserts this
position based on the reasoning GIBA’s only requirement to a prepaid toll
purchaser is to provide an opportunity or right for the purchaser to cross the
bridge. The Court finds GIBA’s position legally incorrect. The Plaintiffs have
the right to cross the bridge upon paying GIBA a reasonable toll upon Plaintiffs
actually crossing the bridge.
GIBA has erroneously argued Plaintiffs’ due process requirements were met when
GIBA advised all prepaid toll purchasers of the non-refundability and automatic
forfeitures of unused tolls through GIBA’s printing their position on the back of
the prepaid toll pass cards, publishing their position in local newspapers and
various local publications and by clearly stating GIBA’s position in their
application for purchase of prepaid tolls form and their reapplication for prepaid
tolls forms.
The Court finds GIBA cannot sell the right to cross the bridge as that right is
already vested in the Plaintiffs and all citizens of the State of Florida as the GIBA
bridge is the only ingress/egress to Gasparilla Island. GIBA rather has the right to
set and collect reasonable tolls when people desire to cross the GIBA bridge.
The Court finds a toll means the purchaser has purchased the actual right to use
the toll when purchaser in fact crosses the bridge and the money does not vest in
GIBA until the purchaser actually crosses the bridge.
The Plaintiffs were illegally denied the full value of the discounted tolls they
purchased when GIBA deactivated their cards before their full value was used.
The Court finds there is no adequate remedy at law to cure the flaws in GIBA’s
three forfeiture toll pass structures except to enjoin GIBA from further selling
prepaid toll passes as they are currently structured.
10
o. The Court finds there is no adequate remedy at law and further enjoins GIBA
from deactivating any future prepaid toll passes regardless of whether a year has
lapsed from the time of purchase of the prepaid toll pass.
The Court finds the attorney’s for Plaintiffs are entitled to reasonable attorney’s
fees under 42 USC 1988.
The court finds the Plaintiffs are “the prevailing party” as defined under the line
of cases supporting Plaintiffs’ claim for attorney’s fees under 42 USC 1988.
ADJUDICATIONS OF LAW
1 The Court grants Plaintiffs’ request for Declaratory Relief and finds GIBA’s
current three prepaid toll structures with forfeiture provisions are beyond any of the powers
granted GIBA in their enabling legislation Chapter 96-507 Laws of Florida.
2 The Courts grants Plaintiffs’ Declaratory Relief under 42 USC 1983 and states
GIBA’s current three prepaid toll structures violate Article 1, Section 9 of the Constitution of the
State of Florida and the Fourteenth Amendment of the Constitution of the United States.
3 The Court grants Plaintiffs’ request for Injunctive Relief and hereby orders GIBA
to immediately cease and desist from selling any of the current three prepaid toll passes with
forfeitures.
4 The Court grants Plaintiffs’ request for Injunctive Relief and hereby orders GIBA
to cease and desist from cancelling or deactivating any cards currently existing under GIBA’s
current three prepaid toll passes which allow for forfeiture since they exceed GIBA’s enabling
legislative powers as well as violating Article 1, Section 9 of the Constitution of the State of
Florida and the Fourteenth Amendment of the Constitution of the United States.
5 The Court grants Plaintiffs’ request for Compensatory Damages in the amount
equal to the unused funds remaining on the Plaintiffs’ prepaid toll cards at the time of GIBA’s
illegal forfeiture of same.
i
6 The Court herby orders the compensatory damages due Plaintiffs by reactivating
their prepaid toll cards retroactive to the date of their illegal deactivation.
7 In the event the Plaintiffs no longer have the original prepaid toll cards, GIBA shall
issue Plaintiffs a new toll card which cards shall contained the full forfeitured
amounts.
The Court grants Plaintiffs’ reasonable attorneys fees and costs.
A separate evidentiary hearing shall be held to determine the amount of reasonable
attorneys fees and costs due Plaintiffs’ attorneys.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been
electronically filed with the Clerk of the Court by using the E-Filing Portal System. 1 hereby
certify that a copy of the foregoing has been furnished by Electronic Mail to: Richard Akin,
Esquire, Henderson, Franklin, Starnes & Holt., P.O. Box 280, Fort Myers, FL 33902-0280 -
Richard.akin@henlaw.com and densise.lunford@henlaw.com on this day of May,
2016
Susana D Gonzalez Norman S Cannella, Sr., Esquire (Of Counsel)
Florida Bar No.: 327743 Florida bar No.: 154971
5501 14% Avenue South Rywant, Alvarez, Jones, Russo& Guyton, P.A
Gulfport, FL 33707 109 N. Brush Street, #500
Tel: (941) 447-8231 Tel: (813) 229-7007
Email: SusanaDGonzalez@ Fax: (813) 739-2394
Tampabay.rr.com Email: ncanella@rywantalvarez.com
Attorney for Plaintiffs Attorney for Plaintiffs
*(Of Counsel)
12
IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT
IN AND FOR CHARLOTTE COUNTY, STATE OF FLORIDA
COUNTY CIVIL
CAPPY JOINER and SALLY JOINER,
Plaintiffs,
Vv. CASE NO: 16-CA-365
GASPARILLA ISLAND BRIDGE
AUTHORITY, an authority created
by the Florida legislature,
Defendant.
/
AMENDED MOTION FOR LEAVE TO AMEND PLAINTIFFS’ AMENDED
COMPLAINT FOR DECLARATORY JUDGMENT DATED FEBRUARY 4, 2016
COME NOW THE PLAINTIFFS, Cappy and Sally Joiner, by and through their
undersigned attorneys, and file this their Motion for Leave to Amend Plaintiffs’ Amended
Complaint for Declaratory Judgment dated February 4, 2016 and as grounds therefore allege:
1 On February 4, 2016 Plaintiffs, by stipulation of the parties and Order of the County court,
filed an Amended Complaint for Declaratory Relief requesting the Court enter an Order
granting them:
a.) A declaration that the Defendant’s Board exceeded the powers granted it in the
enabling legislation which created Defendant’s authority.
b.) A declaration enjoining the Defendant to cease and desist from enforcing the rule
at issue and, to furthermore cease and desist from requiring prepaid pass holders to sign
the ‘agreement’ attached as Exhibit B.
c.) A declaration ordering Defendant to refund forfeited prepaid pass money; or
credit accounts which have been subjected to forfeiture.
d.) A declaration ordering the Defendant to reinstate accounts closed as a result of the
herein cited rule.
On January 12", 2016, Defendant filed Defendant Gasparilla Island Bridge Authority’s
Motion for Final Summary Judgment.
Upon the Plaintiffs ascertaining the County Court of Charlotte County lacked subject
matter jurisdiction because the Circuit Courts of the State of Florida are the courts of
exclusive jurisdiction to determine the legality of a bridge toll. Plaintiffs advised
Defendant of same and requested the parties enter into a joint stipulation to transfer the
pending case to the Circuit Court. On January 26, 2016, the parties filed a Joint Stipulated
Motion to Transfer the Pending Declaratory Judgment Action from the County Court and
an Order ratifying same and transferring the matter to the Circuit Court of Charlotte
County was entered on February 11, 2016.
In February 2016, counsel for the Plaintiffs ascertained there existed additional theories in
law which could be the basis of additional recoveries from the Defendant including
attorney’s fees.
On March 1, 2016, Plaintiffs requested the Defendant allow the Plaintiffs to amend their
Amended Complaint without the necessity of a hearing. (A copy of Plaintiffs’ request to
Defendant to amend their Amended Complaint is attached hereto as Exhibit A with all
language regarding negotiations between the parties have been redacted from the exhibit.)
6. On March 11, 2016 Defendant advised Plaintiffs of its refusal to grant Plaintiffs the right
to amend their Amended Complaint and of their intent to object to Plaintiffs’ Motion to
Amend the Amended Complaint for Declaratory Judgment dated February 4, 2016. (A
copy of Defendants refusal to allow Plaintiffs to amend their Compliant is attached hereto
as Exhibit B with all language regarding negotiations of settlement between the parties
have been redacted from the exhibit.)
Fla. Rule Civ. Pro 1.190. AMENDED AND SUPPLEMENTAL PLEADINGS, states in
relevant part:
(a) Amendments.
A party may amend a pleading once as a matter of course at any time before a responsive
pleading is served or, if the pleading is one to which no responsive pleading is permitted
and the action has not been placed on the trial calendar, may so amend it at any time
within 20 days after it is served. Otherwise a party may amend a pleading only by leave
of court or by written consent of the adverse party. If a party files a motion to amend a
pleading, the party shall attach the proposed amended pleading to the motion. Leave of
court shall be given freely when justice so requires. A party shall plead in response to an
amended pleading within 10 days after service of the amended pleading unless the court
otherwise orders.
(e) Amendments Generally.
At any time in furtherance of justice, upon such terms as may be just, the court may
permit any process, proceeding, pleading, or record to be amended or material
supplemental matter to be set forth in an amended or supplemental pleading. At every
stage of the action the court must disregard any error or defect in the proceedings which
does not affect the substantial rights of the parties.
The substantial rights of the Defendant will not be affected nor will the Defendant be
prejudiced if the Court grants Plaintiffs’ request to amend their Amended Complaint.
The substantial rights of the Plaintiffs shall be irreparably affected and Plaintiffs shall be
prejudiced if the Court does not grant their request to amend so as to allow Plaintiffs the
opportunity to and plead all causes of action and request all relief which may legally exist
against the Defendant.
10. It is in the best interest of justice and both parties to allow the Court to hear and rule on
any cause of actions which may exist between the parties so as to bring final resolution to
this matter.
11. Plaintiffs have attached their proposed Second Amended Complaint for Declaratory
Judgment, Injunctive Relief and for Violation of Due Process under Section Nine of the
Florida Constitution and Amendments Five and Fourteen of the United State Constitution.
WHEREFOR PLAINTIFFS pray this Court enter an Order which states as follows:
1 The Plaintiffs’ Amended Motion for Leave to Amend their Amended Complaint for
Declaratory Judgment is hereby granted.
2. Plaintiffs’ Second Amended Complaint for Declaratory Judgment, Injunctive Relief
Compensatory Damages and Request for Attorney’s Fees shall be the filed with the
Clerk of the Civil Court for Charlotte County and shall become part of the permanent
record in this matter effective as of the date of this Order.
Defendant shall respond to Plaintiffs’ Second Amended Complaint For Declaratory
Relief, Injunctive Relief, Compensatory Damages and Request for Attorney’s Fees and
Costs within 20 days of the entry of this Order.
CERTIFICATE OF SERVICE
1 HEREBY CERTIFY that a true and correct copy of the foregoing has been
electronically filed with the Clerk of the Court by using the £-Filing Portal System I further
certify that a copy of the foregoing has been furnished by Electronic Mail to: Richard Akin,
Esquire, Henderson, Franklin, Starnes & Holt, P.A., P.O. Box 280, Fort Myers, FL 33902-0280
— Richard.akin@henlaw.com and denise.lunsford@henlaw.com on this the Sa day of
May, 2016.
hs wn) Spsdy.
sana D Gonzalez, #sq.Af
Florida Bar No.: 327743
5501 14" Avenue South
Nis "Wt 4 Unset
Norman S CanneWa, Sr., Esquire (Of Counsel)
Florida bar No.: 154971
Rywant, Alvarez, Jones, Russo& Guyton, P.A
—
Gulfport, FL 33707 109 N. Brush Street, #500
Tel: (941) 447-8231 Tel: (813) 229-7007
Email: SusanaDGonzalez@ Fax: (813) 739-2394
Tampabay.rr.com Email: neanella@rywantalvarez.com
Attorney for Plaintiffs Attorney for Plaintiffs
Filing # 36470140 E-Filed 01/12/2016 03:48:58 PM
IN THE COUNTY COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR
CHARLOTTE COUNTY, FLORIDA CIVIL ACTION
CAPPY JOINER and SALLY JOINER,
Plaintiffs,
Vv CASE NO. 14000786SP
GASPARILLA ISLAND BRIDGE
AUTHORITY, an authority created by the
Florida Legisiature,
Defendants.
/
DEFENDANT GASPARILLA ISLAND BRIDGE AUTHORITY'S
MOTION FOR FINAL SUMMARY JUDGMENT
Defendant, GASPARILLA ISLAND BRIDGE AUTHORITY ("GIBA"), hereby files its
Motion for Summary Judgment and states as follows:
4 The Amended Complaint in this matter was filed on February 4, 2015.
2 The Amended Complaint contains a single cause of action for Declaratory
Relief. The Amended Complaint alleges that the Plaintiffs purchased prepaid discount
passes issued by GIBA for use of the bridge facilities maintained by GIBA. The Amended
Complaint goes on to allege that the passes expire within one year of purchase, and that
any money remaining on the passes at the conclusion of that year is lost by the Plaintiffs
and becomes the property of GIBA.
3 As indicated by the caption, as well as the substance of the Complaint, the
Defendant, GIBA, is a special purpose taxing district of the state of Florida, created by
Chapter 96-507, Laws of Florida. The purpose of the GIBA is to manage and operate the
Gasparilla Island Bridge Causeway. (Amended Complaint 3).
EXHIBIT
4 The basic factual allegation at the heart of the Complaint is a rule enacted
by GIBA that purchasers of prepaid bridge passes would have one year from the date
money is last placed in the users account to use the pass, and amounts left on the prepaid
bridge pass at the conclusion of one year would be forfeited. (See generally Amended
Complaint 4-7).
5. The material facts are not in dispute and the only issue in this lawsuit is
GIBA's legal authority to take the action in question. GIBA is entitled to Final Summary
Judgment as a matter of law.
Undisputed Facts
6 GIBA offers the following toll structure for drivers using the bridge as of
November 2, 2012:
Cash toll $6 per trip
Annual Pass (unlimited trips) $780
Discount pass for up to 25 trips $97.50
Non-discounted pass for up to 10 trips $60.00
(Verrico Dep. Tr. 16:6-17) (Amended Complaint Exhibit A). Each of the passes expire 12
months from the last payment date. However, in the event the pass holder replenishes
the pass prior to the expiration of the 12 month period, the pass is replenished for another
42 months. (Verrico Dep. Tr. 16:8-21). A true and correct copy of the cited portions of
Ms. Verrico's deposition transcript are attached hereto as “Exhibit A.”
7 The Plaintiffs each had a discounted pass for 25 trips, purchased for $97.50.
(Verrico Dep. Tr. 17:3-8). Mr. Joiner purchased his pass in May 2013, and Mrs. Joiner
purchased her pass in July 2013. In the event that the Plaintiffs used the pass the
Page 2
maximum numberof times, each trip across the bridge would have cost them $3.90, which
equates to a $2.10 discount per trip, or a total savings of $52.50.
8. Changes to the tol! structure made in 2012 were advertised by GIBA in the
local newspapers. (Verrico Dep. Tr. 17:9-20).
9 In May 2014, the Plaintiffs became upset when they learned that their
discount pass had expired. (Verrico Dep. Tr. 18:21-25; 19; 20:1-17). In response, the
Plaintiffs were informed that they could sign a form or place additional money in their
account, which would give them another 12 months before the pass expired. (Verrico
Dep. Tr. 18:21-25; 19; 20:1-17).
10. Following the changes to the toll structure in 2012, the GIBA toll pass
application provides, in part, as follows:
| understand that my account will be automatically cancelled and any
money remaining in the account will be forfeited one year from the
date of my last purchase.
See affidavit of GIBA Executive Director Kathy Banson-Verrico attached hereto as
Exhibit B. (emphasis in original).
MEMORANDUM OF LAW
Section 17, Chapter 96-507, Laws of Florida, establishes GIBA, and lays out its
powers, duties, and responsibilities. Section 17, Chapter 96-507, provides in pertinent
part, as follows:
Section 3, PURPOSES. --
(1) The authority is created for the purpose of acquiring, constructing,
reconstructing, financing, owning, managing, providing, promoting,
improving, expanding, maintaining, operating, regulating, franchising, and
otherwise having complete authority, with respect to the Gasparilla Island
Page 3
bridge and causeway within the territorial limits of Charlotte County, and
areas adjacent thereto. It is further the purpose of this act to repose in the
authority all powers with respect to operating, maintaining, repairing and
ideas
improving the bridge and
and causeway, including the power to set br agi e toll
rates and collect bridge tolls, and such other additional powers as are
hereafter designated by this act.
Section 6. POWERS AND DUTIES OF AUTHORITY. -- The authority shail
have the following powers and duties, in addition to and supplementing
other powers granted in this act and powers granted to authorities by
general law:
(3) To fix, modify, charge and collect toll rates and user fees from persons
for the use of the bridge and causeway system at such levels as the
authority deems appropriate regardless of the costs associated with the
bridge and causeway system...
The Plaintiffs seek a declaration that GIBA !acks the authority to set tolls and the
toll structure for the bridge in the manner it has chosen. GIBA’s enacting legislation
unequivocally grants it the authority to set toils for the bridge. Nothing in the enacting
legislation limits GIBA’s authority to set the toll structure in the manner complained of by
the Plaintiffs. The Plaintiffs simply do not like the toll structure in question. There is no
basis under Florida law to support the Plaintiffs arguments.
The Florida Second District Court of Appeals considered the proper analysis to
conduct in considering the reasonableness of a toll, explained as follows:
From the limited case law, one issue seems clear: “legality” incorporates
the concept of a reasonable rate. Thus, in evaluating the legality of a toll,
the circuit court is empowered to review its reasonableness. The case law
at least implies that a reasonable rate would consider not only the annual
cost of operation and maintenance, but also the need for a fair return on
investment and the need to set aside funds to replace the bridge when it
becomes old or obsolete. Section 338.165 would suggest that tolls might be
reasonable if used to further improve related roadways. See § 338.165(4),
Fla. Stat, (2004); see also McGovern v. Lee County, 346 So.2d 58
(Fla.1977). One would assume that a court would be obligated to give
considerable deference to the decision of the political body setting the rate,
but if a rate were so high as to be confiscatory, it would certainly be
unreasonable.
Page 4
Gargano v. Lee Cty. Bd. of Cty. Comm'ts, 921 So. 2d 661, 666 (Fla. 2d DCA 2006). Here
the Court is not called upon to consider the reasonableness of the per trip toll, but instead,
whether GIBA is prohibited from offering a discount pass and placing a time limit on the
time that the pass must be used. The Plaintiffs have not demonstrated any authority
prohibiting such a toll structure.
The Plaintiffs do not argue that GIBA lacks the authority to set tolls for a discounted
amount. The Plaintiffs do not argue that GIBA lacks the authority to provide for passes
that expire after a stated term. Instead the Plaintiffs argue that GIBA lacks the authority
to provide a discounted pass that expires after a stated term. The Plaintiffs purchased
their discounted passes after the rule providing for forfeiture of funds not used within 12
months of purchase was enacted by GIBA. (See Complaint Exhibit A) (Verrico Dep. Tr.
17:9-20). Therefore, the Plaintiffs had at least constructive (if not actual) notice of the toll
structure, and were not required to purchase a discount pass, but instead chose to
purchase such a pass. GIBA has the authority to set tolls, and nothing prevents GIBA
from setting the structure as done in this matter.
WHEREFORE, Defendant GASPARILLA ISLAND BRIDGE AUTHORITY,
requests that this Court enter a Final Summary Judgment in its favor and awarding such
other and further relief as is deemed appropriate.
Page 5
CERTIFICATE OF SERVICE
| HEREBY CERTIFY that a true and correct copy of the above and foregoing has
been furnished to the following:
Norman S. Cannella, Sr., Esq.
Rywant, Alvarez, Jones, Russo & Guyton, P.A.
109 N. Brush Street, #500
Tampa, FL 33602
Tel: 813-229-7007
ncannella@rywantalvarez.com
twinkler@rywantalvarez.com
Attorney for Plaintiff
by {V¥électronically filing with the Clerk of Court through E-Filing Portal System which will
send a notice of electronic filing; eral, Ud regular United States Mail, this \2te
day of January, 2016.
HENDERSON, FRANKLIN, STARNES & HOLT, P.A
Attorneys for Defendant, Gasparilla Island Bridge
Authority
Post Office Box 280
Fort Myers, FL 33902-0280
239.344.1170
By: bh tb:
BRUCE M. STANLEY, ESQ.
Florida Bar No.: 187289
bruce.stanley@henlaw.com
sandra.santiago@henlaw.com
RICHARD B. AKIN, ESQ.
Florida Bar No.: 68112
Richard.akin@heniaw.com
brenda.sitar@henlaw.com
#2155892
Page 6
IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND
FOR CHARLOTTE COUNTY, FLORIDA CIVIL ACTION
CAPPY: JOINER and SALLY
JOINER,
Plaintiffs,
CASE NO. 14-000785-SP
GASPARILLA ISLAND BRIDGE
AUTHORITY, an authority created
by the Florida Legislature, COPY
Fadl he
Defendants.
oe oe ste eee weeeel
DEPOSITLON OF KATHY BANSON-VERRICO
Taken Pursuant to Notice of Taking Deposition
by Counsel for the Plaintiff
DATE TAKEN: Thursday, November 12, 2015
TIME: 10:22 a.m. to 11:05 a.m.
PLACE: Boca Grande Community Center
131 First Street West
Boca Grande, FL 33921
Examination of the witness taken before:
Lisa M. RPR, FPR,
Rollins,
Notary Public, Stale of Florida at Large
Guardian Reporting, Inc.
Serving All of Southwest Florida
(866) 430-DEPO
www. guardianreporting.com
ewer
EXHIBIT
1A
~
www.anthemreporting.com i 888.909.2720 || anthem@anthemreporting.com
Page lo
2012?
A Yes.
Q And can you tell -~- has the rate structure remained
the same since then?
A Yes.
Q Can you tell us what the rate structure has been
since the changes in 2012?
A Sure. The cash toll for a car is $6. We still have
the annual pass, which is unlimited: One sticker, one car,
190 one year. We have the discount pass that is $97.50; that is
al now for 25 trips. Those passes
Preview
Filing # 42126280 E-Filed 05/31/2016 01:18:09 PM IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, STATE OF FLORIDA CIRCUIT CIVIL CAPPY JOINER and SALLY JOINER, Plaintiffs, CASE NO.: 16-CA-365 Vv. GASPARILLA ISLAND BRIDGE AUTHORITY, an authority created by the Florida Legislature, Defendant. / PLAINTIFFS AMENDED SECOND AMENDED COMPLAINT FOR DECLARATORY RELIEF, INJUNCTIVE RELIEF, COMPENSATORY DAMAGE AND ATTORN S FEES AND COSTS COME NOW, the Plaintiffs, James “Cappy” Joiner and Sally Joiner (herein after referred to as Plaintiffs), by and through their undersigned attorneys and files their Amended Second Amended Complaint for Declaratory Judgment, Injunctive Relief, Compensatory Damages and Attorney’s Fees and Costs against the Defendant, Gasparilla Island Bridge Authority (herein after referred to as GIBA) and as grounds therefore alleges: JURISDICTIONAL ALLEGATIONS 1 The Circuit Court of Charlotte County has exclusive jurisdiction in determining the legality of a bridge toll devised by GIBA pursuant to Const. Art. 5, 2(c) (3); Fla. Stat. 26.012(2) (e). 2. The Circuit Court of Charlotte County has jurisdiction to determine whether GIBA’s prepaid toll structures violate Article 1 Section 9 of Florida State Constitution and, jurisdiction pursuant 42 USC 1983, Amendment 14 Due Process Clause of the United States Constitution by denying the Plaintiffs’ Due Process of Law. 3 The Circuit Court of Charlotte County has Jurisdiction to make a factual fining of fact and law as to Plaintiffs’ attorneys’ right to reasonable attorney fees and costs pursuant to 42 USC 1988 their Declaratory Relief Action 4 The Circuit Court of Charlotte County has jurisdiction to grant Plaintiffs Injunctive relief pursuant to the Court’s right to hear and resolve causes of action seeking equitable relief and which have no adequate remedy at law. 5 The Circuit Court has jurisdiction to grant Plaintiffs Declaratory Relief pursuant to Florida statute 86.011. STANDING ALLEGATIONS The Plaintiffs have standing to bring the various causes of action in this case because: Plaintiffs are residents of the State of Florida with a right to free access of all public lands owned by the State of Florida and GIBA’s bridge is the only ingress and egress road onto Gasparilla Island. Plaintiff, James Joiner, is required to attend meetings throughout the year on Gasparilla Island as President of Boca Grande Fishing Guide Association. Plaintiffs are residents of the Taxing District under the taxing authority of GIBA as residents of Charlotte County. Plaintiffs have a bona fide, actual, present and practical need for a declaration as to the legality of GIBA’s prepaid tolls. May v. Holley, 59 So.3d 636 (Fla. 1952); Okaloosa Island Leaseholders Ass’n, Inc. v Okaloosa Island Auth., 308 So.2d 120, 122 (Fla. Dist. Ct. App 1975). Plaintiffs have suffered or will suffer a special injury which is the taking of their monies without GIBA providing them the actual ability to use the tolls for which they paid. Gargona v Lee County Board of County Commissioners, 921 So.2d 661 (Fla 2"? DCA 2006) Plaintiffs have standing to bring a violation of Due Process under Article 1, Section 9 of the Florida Constitution and the Fourteenth Amendment of the United States Constitution as citizens of the State of Florida and the United States in that they have been denied their property without Due Process of Law. UNDISPUTED FACTS 1 Defendant, GIBA, is a special purpose taxing district of the State of Florida, created by Chapter 96-507, Laws of Florida. Both parties agree any and all power granted to GIBA is contained in its enabling legislation which states in relevant part as follows: Section 3. PURPOSES.— (1) The authority is created for the purpose of acquiring, constructing, reconstructing, financing, owning, regulating, franchising, and otherwise having complete authority with respect to the Gasparilla Island Bridge and causeway within the territorial limits of Charlotte County, areas adjacent thereto. It is further the purpose of the Act to repose in the authority all powers with respect to operating, maintaining, repairing and improving the bridge and causeway, including the power fo set bridge tolls rates and collect bridge tolls... (emphasis added) Section 6. POWERS AND DUTIES OF AUTHORITY.— dq) The authority shall have the following power and duties, in addition to and supplementing other powers granted in this act and powers granted to authorities by general law: (2) To fix, modify, charge and collect toll rates and user fees from persons Sor the use of the bridge and causeway system at such levels as the authority deems appropriate regardless of the costs associated with the bridge and causeway system. ..(emphasis added) 2 As of November 12, 2012 GIBA offered the following toll structure for drivers using the bridge: Cash toll $6.00 per trip Prepaid Annual Pass (unlimited trips) $780.00 Prepaid Discounted Pass for up to 25 trips $97.50 Prepaid Non-discounted Pass for up to 10 trips $60.00 3 Each of the three above referenced prepaid passes would expire 12 months from purchase date unless the pass holder replenished the pass prior to the expiration of the 12 month period which would then replenish the pass for another 12 month period. (Verrico Dep. Tr. 16:6- 21) (Defendant Gasparilla Island Bridge Authority’s Motion for Final Summary Judgment Exhibit “A” and attached hereto as Plaintiffs’ Exhibit “A”) 4 GIBA disclosed the fact all prepaid toll structures would expire within the 12 month period from purchase date unless replenished for another 12 month period by advertising said facts in local publications and newspapers, (Verrico Dep. Tr. 17:9-20) (Exhibit “B”) 5 The terms of the above prepaid toll structures were articulated on GIBA’s website as follows: “A Gasparilla Island Bridge Authority bridge pass is good for one year from the date of purchase. Any trips not used within that year will be forfeited...” (A true and correct copy of same is attached hereto as Plaintiffs’ Exhibit “C”) (emphasis added) 6 The terms of the above prepaid toll structures were articulated on GIBA’s application for purchase of prepaid tolls as follows: GIBA TOLL PASS TERMS AND CONDITIONS I am applying for a Gasparilla Island Bridge Authority toll pass. I certify that the information provided herein is accurate to the best of my knowledge. ONCE MONEY HAS BEEN PUT INTO MY ACCOUNT I UNDERSTAND AND ACCEPT THAT NO REFUND OR 4 CREDITS WILL BE ISSUED UNDER ANY CIRCUMSTANCES... (emphasis added) :-.]_ understand that my account will be automatically canceled any money emaining in the account will be forfeited one year from the date of purchase...(emphasis not added) «-- THE GASPARILLA ISLAND BRIDGE AUTHORITY RESREVES THE RIGHT TO CHANGE, DELETE, LIMIT OR MODIFY AT ANY TIME THE TERMS OF THIS AGREEMENT WITHOUT ANY NOTICE...(emphasis added) ...By signing above I verify I have read and understand these disclosures) (emphasis not added) (A true and correct copy of same is attached hereto as Plaintiffs’ Exhibit “D”) 7 The terms of reapplying for a prepaid toll pass is contained in GIBA’s re- application form states as follows: a. ACCOUNTS WILL BE AUTOMATICALLY CANCELLED AND ANY MONEY REMAINING IN THE ACCOUNT WILL BE FORFEITED TO GIBA ONE YEAR FROM THE DATE OF LAST PURCHASE.** (emphasis not added) (A true and correct copy of same is attached to as Plaintiffs’ Exhibit “E”) 8 The Plaintiff, Cappy Joiner, purchased his discounted prepaid toll within the 12 months immediately preceding July 27, 2013. 9 The Plaintiff, Cappy Joiner did not sign the GIBA’s application for purchase of prepaid tolls referenced in paragraph 6 above. 10. The Plaintiff, Cappy Joiner discovered his discounted prepaid toll had been deactivated on May 28, 2014 with $ 58.00 of tolls value still unused. 11. The Plaintiff, Sally Joiner’s discounted prepaid card was deactivated on July 2, 2014 with an unidentified amount of value remaining on her prepaid toll pass. 12. On May 28, 2014, after his prepaid toll card became deactivated, Plaintiff, Cappy Joiner was advised the only process by which his discounted toll card would be reactivated was to purchase another discounted prepaid toll for $97.50. 5 13. On May 28, 2014, Plaintiff, Sally Joiner, was advised her prepaid toll card would expire in two months and the only way she could prevent the deactivation of her card and the forfeiture of her remaining funds was to purchase an additional prepaid toll for $97.50. 14. The GIBA board member who proposed the automatic forfeiture changes to the prepaid tolls was Julius Zar Frager (herein after referred to as Frager). 15. Board member Frager states GIBA acquires ownership of the money from anyone who purchases the prepaid tolls as of the date the purchaser pays for a prepaid toll whether the purchaser ever uses the prepaid toll card. Julius Frager Deposition Pg. 9-11 All Q’s are being asked by Attorney for Plaintiffs’ and A’s are by Julius Frager. Q Do I understand, then, Mr. Frager, that your position is that the discount system is what justifies the forfeiture of unused tolls? Mr. Stanley Object to form. You can answer. A Again, I don’t look at it as a forfeiture. I look at it as you paying a set amount for one year to use up to so many things, and that’s your privilege to use it for those amounts of times. At the end of the year, if you’ve used it so be it. If you haven’t used it, so be it. You’ve purchased the opportunity and rights to cross the bridge for so many times. Q If you don’t use it all, what happens to the balance remaining in one’s account? Mr. Stanley: Object to the form. You can answer. A You have paid the Bridge Authority for the right to be able to cross the bridge. At the end of you time period, the money is just like it was when you paid it: It belongs to the bridge. It doesn’t matter if it was at the end of the time or at the beginning when you paid it. When you paid it, the money belongs t the Bridge Authority and what _you’ve received is the right to cross the bridge...” Q. Okay, you characterized the pass as a right of the holder of that pas to cross the bridge? A Correct. (Deposition of Julius Zar Frager) (emphasis added) Plaintiffs’ Exhibit “F”) 16. The GIBA Board unanimously passed the changes for the automatic forfeiture of all prepaid tolls on November 12, 2012. 17. The GIBA Board never actively sought the advice of their attorney to determine the legality of any of the prepaid toll changes nor did they request a formal opinion letter from counsel as to the legality of the toll structure. 18. The GIBA Board’s advising attorney Robert H. Berntsson, Esq., was never formally asked by GIBA, nor did he write any opinion letter as to the legality of GIBA’s Board’s proposed changes to the prepaid tolls. Pg. 5-7 Lines 2-6 (Deposition of Robert H. Berntsson, Esq., attached hereto as Plaintiffs’ Exhibit “G”) 19. GIBA has sold thousands of these prepaid tolls since their inception in 2012. (See attached email dated February 25, 2016 between attorney Akin and attorney Cannella wherein attorney Akin states thousands of the reapplication for prepaid tolls have been signed) (See attached Plaintiffs’ Exhibit “H”) 20. There is a need for the Court to enter a Declaratory Judgment determining the legality of GIBA’s prepaid tolls because Plaintiffs allege GIBA has exceeded the authority of its enabling legislation as defined in Chapter 96-507 Law of Florida. DISPUTED FACTS 21. There is a need for the Court to enter a Declaratory Judgment determining whether GIBA has violated the Due Process rights of the Plaintiffs, and all other purchasers of the GIBA’s prepaid toll passes, under Amendment 14 of the United States Constitution and Article 1, Section 9 of the Florida State Constitution because of GIBA’s position that the monies paid to them for the purchase of a prepaid toll, becomes fully vested as their property upon purchase constitutes a taking without Due Process of Law under the Florida State and Federal Constitutional. 22. Long established statutory law interpretation states; expressio unicus est exclusion alterius, which holds where a statute enumerates the things on which it is to operate...it is ordinarily to be construed as excluding from its operation those not expressly mentioned.” Thayer v. State, 355 So. 2d 815 (Fla 1976). 23. Nothing in GIBA’s enabling legislation allows it to conduct forfeitures or confiscate purchaser’s money at the time of purchase but rather specifically allows GIBA to set and collect tolls. 24. Tolls are similar to user fees. “User fees” share common traits that distinguish them from taxes: they are charged in exchange for a particular governmental service which benefits the party paying the fee in a manner not shared by other members of society, and they are paid. 25. The Court is obligated to “give considerable deference to the decision of the political body setting the toll rate”... in determining whether a rate is unreasonable, “...but, if the rate were so high as to be confiscatory, it would be unreasonable.” Gargona v. Lee County Board of County Commissioners, 921 So.2d (Fla 2"! DCA 2006). In the instant case GIBA claims ownership of prepaid toll pass monies at purchase, regardless if the purchaser ever uses the pass, which in essence amounts to a confiscation ab initio by GIBA. 26. Plaintiffs have hired their attorneys to represent them and their attorneys are entitled to a fair and reasonable attorney’s fees and costs pursuant to the power granted this Court to award reasonable attorney’s fees under 42 USC 1988. WHEREFORE the Plaintiffs request the entry of an Order which states as follows: 1 The Court makes the following Findings of Fact and Adjudications of Law: FINDINGS OF FACT The Court has exclusive jurisdiction to determine the legality of tolls pursuant to Article (v) of the Constitution of the State of Florida. Gargona v. Lee County Board of County Commissioners, 921 So.2d (Fla 24 DCA 2006). The Court has Jurisdiction under 42 USC 1983 to determine Plaintiffs’ claims of violation of Due Process under the Fourteenth Amendment of the Constitution of the United States. The Plaintiffs have standing to bring their various causes of action against Defendant. GIBA, is a special purpose taxing district of the State of Florida, created by Chapter 96-507, Laws of Florida. Both parties agree any and all power granted to GIBA is contained in its enabling legislation. GIBA’s has the power to fix, modify, charge and collect toll rates and user fees from persons for the use of the bridge and causeway system in addition to and supplementing other powers granted in the Act and powers granted to authorities by general law. GIBA argues because the enabling legislation does not specifically limit GIBA’s tight to forfeit unused tolls or claim a full vested interest in monies paid for these tolls at time of purchase GIBA has these rights. GIBA’s position therefore, means the enabling legislation grants them the authority to claim ownership of prepaid tolls monies at the time of purchase or to forfeit all prepaid toll monies not used within the year. Such a position is untenable. Neither the language nor plain reading of the enumerated powers of GIBA’s enabling language as contained in 96-507 Laws of Florida, nor applicable case law can be reasonably interpreted to grant GIBA the right to conduct forfeitures as it does in three of its current prepaid pass structures nor claim a fully vested interest in the prepaid toll monies at time of purchase. GIBA has clearly exceeded its powers granted it under Chapter 96-507, Laws of Florida. GIBA has also violated the Due Process rights of the Defendants, and all others similarly situated, by conducting what amounts to a “taking” of property without Due Process of Law. Notice alone is not sufficient to constitute Due Process. Due Process under the Constitution of Florida and the United States requires GIBA provide the purchasers an opportunity to be heard on the issue of the taking of their property which taking occurs at the time of purchase. GIBA claims the Plaintiffs’ money became the property of GIBA immediately upon Plaintiffs purchasing any of the three prepaid passes. GIBA asserts this position based on the reasoning GIBA’s only requirement to a prepaid toll purchaser is to provide an opportunity or right for the purchaser to cross the bridge. The Court finds GIBA’s position legally incorrect. The Plaintiffs have the right to cross the bridge upon paying GIBA a reasonable toll upon Plaintiffs actually crossing the bridge. GIBA has erroneously argued Plaintiffs’ due process requirements were met when GIBA advised all prepaid toll purchasers of the non-refundability and automatic forfeitures of unused tolls through GIBA’s printing their position on the back of the prepaid toll pass cards, publishing their position in local newspapers and various local publications and by clearly stating GIBA’s position in their application for purchase of prepaid tolls form and their reapplication for prepaid tolls forms. The Court finds GIBA cannot sell the right to cross the bridge as that right is already vested in the Plaintiffs and all citizens of the State of Florida as the GIBA bridge is the only ingress/egress to Gasparilla Island. GIBA rather has the right to set and collect reasonable tolls when people desire to cross the GIBA bridge. The Court finds a toll means the purchaser has purchased the actual right to use the toll when purchaser in fact crosses the bridge and the money does not vest in GIBA until the purchaser actually crosses the bridge. The Plaintiffs were illegally denied the full value of the discounted tolls they purchased when GIBA deactivated their cards before their full value was used. The Court finds there is no adequate remedy at law to cure the flaws in GIBA’s three forfeiture toll pass structures except to enjoin GIBA from further selling prepaid toll passes as they are currently structured. 10 o. The Court finds there is no adequate remedy at law and further enjoins GIBA from deactivating any future prepaid toll passes regardless of whether a year has lapsed from the time of purchase of the prepaid toll pass. The Court finds the attorney’s for Plaintiffs are entitled to reasonable attorney’s fees under 42 USC 1988. The court finds the Plaintiffs are “the prevailing party” as defined under the line of cases supporting Plaintiffs’ claim for attorney’s fees under 42 USC 1988. ADJUDICATIONS OF LAW 1 The Court grants Plaintiffs’ request for Declaratory Relief and finds GIBA’s current three prepaid toll structures with forfeiture provisions are beyond any of the powers granted GIBA in their enabling legislation Chapter 96-507 Laws of Florida. 2 The Courts grants Plaintiffs’ Declaratory Relief under 42 USC 1983 and states GIBA’s current three prepaid toll structures violate Article 1, Section 9 of the Constitution of the State of Florida and the Fourteenth Amendment of the Constitution of the United States. 3 The Court grants Plaintiffs’ request for Injunctive Relief and hereby orders GIBA to immediately cease and desist from selling any of the current three prepaid toll passes with forfeitures. 4 The Court grants Plaintiffs’ request for Injunctive Relief and hereby orders GIBA to cease and desist from cancelling or deactivating any cards currently existing under GIBA’s current three prepaid toll passes which allow for forfeiture since they exceed GIBA’s enabling legislative powers as well as violating Article 1, Section 9 of the Constitution of the State of Florida and the Fourteenth Amendment of the Constitution of the United States. 5 The Court grants Plaintiffs’ request for Compensatory Damages in the amount equal to the unused funds remaining on the Plaintiffs’ prepaid toll cards at the time of GIBA’s illegal forfeiture of same. i 6 The Court herby orders the compensatory damages due Plaintiffs by reactivating their prepaid toll cards retroactive to the date of their illegal deactivation. 7 In the event the Plaintiffs no longer have the original prepaid toll cards, GIBA shall issue Plaintiffs a new toll card which cards shall contained the full forfeitured amounts. The Court grants Plaintiffs’ reasonable attorneys fees and costs. A separate evidentiary hearing shall be held to determine the amount of reasonable attorneys fees and costs due Plaintiffs’ attorneys. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been electronically filed with the Clerk of the Court by using the E-Filing Portal System. 1 hereby certify that a copy of the foregoing has been furnished by Electronic Mail to: Richard Akin, Esquire, Henderson, Franklin, Starnes & Holt., P.O. Box 280, Fort Myers, FL 33902-0280 - Richard.akin@henlaw.com and densise.lunford@henlaw.com on this day of May, 2016 Susana D Gonzalez Norman S Cannella, Sr., Esquire (Of Counsel) Florida Bar No.: 327743 Florida bar No.: 154971 5501 14% Avenue South Rywant, Alvarez, Jones, Russo& Guyton, P.A Gulfport, FL 33707 109 N. Brush Street, #500 Tel: (941) 447-8231 Tel: (813) 229-7007 Email: SusanaDGonzalez@ Fax: (813) 739-2394 Tampabay.rr.com Email: ncanella@rywantalvarez.com Attorney for Plaintiffs Attorney for Plaintiffs *(Of Counsel) 12 IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, STATE OF FLORIDA COUNTY CIVIL CAPPY JOINER and SALLY JOINER, Plaintiffs, Vv. CASE NO: 16-CA-365 GASPARILLA ISLAND BRIDGE AUTHORITY, an authority created by the Florida legislature, Defendant. / AMENDED MOTION FOR LEAVE TO AMEND PLAINTIFFS’ AMENDED COMPLAINT FOR DECLARATORY JUDGMENT DATED FEBRUARY 4, 2016 COME NOW THE PLAINTIFFS, Cappy and Sally Joiner, by and through their undersigned attorneys, and file this their Motion for Leave to Amend Plaintiffs’ Amended Complaint for Declaratory Judgment dated February 4, 2016 and as grounds therefore allege: 1 On February 4, 2016 Plaintiffs, by stipulation of the parties and Order of the County court, filed an Amended Complaint for Declaratory Relief requesting the Court enter an Order granting them: a.) A declaration that the Defendant’s Board exceeded the powers granted it in the enabling legislation which created Defendant’s authority. b.) A declaration enjoining the Defendant to cease and desist from enforcing the rule at issue and, to furthermore cease and desist from requiring prepaid pass holders to sign the ‘agreement’ attached as Exhibit B. c.) A declaration ordering Defendant to refund forfeited prepaid pass money; or credit accounts which have been subjected to forfeiture. d.) A declaration ordering the Defendant to reinstate accounts closed as a result of the herein cited rule. On January 12", 2016, Defendant filed Defendant Gasparilla Island Bridge Authority’s Motion for Final Summary Judgment. Upon the Plaintiffs ascertaining the County Court of Charlotte County lacked subject matter jurisdiction because the Circuit Courts of the State of Florida are the courts of exclusive jurisdiction to determine the legality of a bridge toll. Plaintiffs advised Defendant of same and requested the parties enter into a joint stipulation to transfer the pending case to the Circuit Court. On January 26, 2016, the parties filed a Joint Stipulated Motion to Transfer the Pending Declaratory Judgment Action from the County Court and an Order ratifying same and transferring the matter to the Circuit Court of Charlotte County was entered on February 11, 2016. In February 2016, counsel for the Plaintiffs ascertained there existed additional theories in law which could be the basis of additional recoveries from the Defendant including attorney’s fees. On March 1, 2016, Plaintiffs requested the Defendant allow the Plaintiffs to amend their Amended Complaint without the necessity of a hearing. (A copy of Plaintiffs’ request to Defendant to amend their Amended Complaint is attached hereto as Exhibit A with all language regarding negotiations between the parties have been redacted from the exhibit.) 6. On March 11, 2016 Defendant advised Plaintiffs of its refusal to grant Plaintiffs the right to amend their Amended Complaint and of their intent to object to Plaintiffs’ Motion to Amend the Amended Complaint for Declaratory Judgment dated February 4, 2016. (A copy of Defendants refusal to allow Plaintiffs to amend their Compliant is attached hereto as Exhibit B with all language regarding negotiations of settlement between the parties have been redacted from the exhibit.) Fla. Rule Civ. Pro 1.190. AMENDED AND SUPPLEMENTAL PLEADINGS, states in relevant part: (a) Amendments. A party may amend a pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed on the trial calendar, may so amend it at any time within 20 days after it is served. Otherwise a party may amend a pleading only by leave of court or by written consent of the adverse party. If a party files a motion to amend a pleading, the party shall attach the proposed amended pleading to the motion. Leave of court shall be given freely when justice so requires. A party shall plead in response to an amended pleading within 10 days after service of the amended pleading unless the court otherwise orders. (e) Amendments Generally. At any time in furtherance of justice, upon such terms as may be just, the court may permit any process, proceeding, pleading, or record to be amended or material supplemental matter to be set forth in an amended or supplemental pleading. At every stage of the action the court must disregard any error or defect in the proceedings which does not affect the substantial rights of the parties. The substantial rights of the Defendant will not be affected nor will the Defendant be prejudiced if the Court grants Plaintiffs’ request to amend their Amended Complaint. The substantial rights of the Plaintiffs shall be irreparably affected and Plaintiffs shall be prejudiced if the Court does not grant their request to amend so as to allow Plaintiffs the opportunity to and plead all causes of action and request all relief which may legally exist against the Defendant. 10. It is in the best interest of justice and both parties to allow the Court to hear and rule on any cause of actions which may exist between the parties so as to bring final resolution to this matter. 11. Plaintiffs have attached their proposed Second Amended Complaint for Declaratory Judgment, Injunctive Relief and for Violation of Due Process under Section Nine of the Florida Constitution and Amendments Five and Fourteen of the United State Constitution. WHEREFOR PLAINTIFFS pray this Court enter an Order which states as follows: 1 The Plaintiffs’ Amended Motion for Leave to Amend their Amended Complaint for Declaratory Judgment is hereby granted. 2. Plaintiffs’ Second Amended Complaint for Declaratory Judgment, Injunctive Relief Compensatory Damages and Request for Attorney’s Fees shall be the filed with the Clerk of the Civil Court for Charlotte County and shall become part of the permanent record in this matter effective as of the date of this Order. Defendant shall respond to Plaintiffs’ Second Amended Complaint For Declaratory Relief, Injunctive Relief, Compensatory Damages and Request for Attorney’s Fees and Costs within 20 days of the entry of this Order. CERTIFICATE OF SERVICE 1 HEREBY CERTIFY that a true and correct copy of the foregoing has been electronically filed with the Clerk of the Court by using the £-Filing Portal System I further certify that a copy of the foregoing has been furnished by Electronic Mail to: Richard Akin, Esquire, Henderson, Franklin, Starnes & Holt, P.A., P.O. Box 280, Fort Myers, FL 33902-0280 — Richard.akin@henlaw.com and denise.lunsford@henlaw.com on this the Sa day of May, 2016. hs wn) Spsdy. sana D Gonzalez, #sq.Af Florida Bar No.: 327743 5501 14" Avenue South Nis "Wt 4 Unset Norman S CanneWa, Sr., Esquire (Of Counsel) Florida bar No.: 154971 Rywant, Alvarez, Jones, Russo& Guyton, P.A — Gulfport, FL 33707 109 N. Brush Street, #500 Tel: (941) 447-8231 Tel: (813) 229-7007 Email: SusanaDGonzalez@ Fax: (813) 739-2394 Tampabay.rr.com Email: neanella@rywantalvarez.com Attorney for Plaintiffs Attorney for Plaintiffs Filing # 36470140 E-Filed 01/12/2016 03:48:58 PM IN THE COUNTY COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, FLORIDA CIVIL ACTION CAPPY JOINER and SALLY JOINER, Plaintiffs, Vv CASE NO. 14000786SP GASPARILLA ISLAND BRIDGE AUTHORITY, an authority created by the Florida Legisiature, Defendants. / DEFENDANT GASPARILLA ISLAND BRIDGE AUTHORITY'S MOTION FOR FINAL SUMMARY JUDGMENT Defendant, GASPARILLA ISLAND BRIDGE AUTHORITY ("GIBA"), hereby files its Motion for Summary Judgment and states as follows: 4 The Amended Complaint in this matter was filed on February 4, 2015. 2 The Amended Complaint contains a single cause of action for Declaratory Relief. The Amended Complaint alleges that the Plaintiffs purchased prepaid discount passes issued by GIBA for use of the bridge facilities maintained by GIBA. The Amended Complaint goes on to allege that the passes expire within one year of purchase, and that any money remaining on the passes at the conclusion of that year is lost by the Plaintiffs and becomes the property of GIBA. 3 As indicated by the caption, as well as the substance of the Complaint, the Defendant, GIBA, is a special purpose taxing district of the state of Florida, created by Chapter 96-507, Laws of Florida. The purpose of the GIBA is to manage and operate the Gasparilla Island Bridge Causeway. (Amended Complaint 3). EXHIBIT 4 The basic factual allegation at the heart of the Complaint is a rule enacted by GIBA that purchasers of prepaid bridge passes would have one year from the date money is last placed in the users account to use the pass, and amounts left on the prepaid bridge pass at the conclusion of one year would be forfeited. (See generally Amended Complaint 4-7). 5. The material facts are not in dispute and the only issue in this lawsuit is GIBA's legal authority to take the action in question. GIBA is entitled to Final Summary Judgment as a matter of law. Undisputed Facts 6 GIBA offers the following toll structure for drivers using the bridge as of November 2, 2012: Cash toll $6 per trip Annual Pass (unlimited trips) $780 Discount pass for up to 25 trips $97.50 Non-discounted pass for up to 10 trips $60.00 (Verrico Dep. Tr. 16:6-17) (Amended Complaint Exhibit A). Each of the passes expire 12 months from the last payment date. However, in the event the pass holder replenishes the pass prior to the expiration of the 12 month period, the pass is replenished for another 42 months. (Verrico Dep. Tr. 16:8-21). A true and correct copy of the cited portions of Ms. Verrico's deposition transcript are attached hereto as “Exhibit A.” 7 The Plaintiffs each had a discounted pass for 25 trips, purchased for $97.50. (Verrico Dep. Tr. 17:3-8). Mr. Joiner purchased his pass in May 2013, and Mrs. Joiner purchased her pass in July 2013. In the event that the Plaintiffs used the pass the Page 2 maximum numberof times, each trip across the bridge would have cost them $3.90, which equates to a $2.10 discount per trip, or a total savings of $52.50. 8. Changes to the tol! structure made in 2012 were advertised by GIBA in the local newspapers. (Verrico Dep. Tr. 17:9-20). 9 In May 2014, the Plaintiffs became upset when they learned that their discount pass had expired. (Verrico Dep. Tr. 18:21-25; 19; 20:1-17). In response, the Plaintiffs were informed that they could sign a form or place additional money in their account, which would give them another 12 months before the pass expired. (Verrico Dep. Tr. 18:21-25; 19; 20:1-17). 10. Following the changes to the toll structure in 2012, the GIBA toll pass application provides, in part, as follows: | understand that my account will be automatically cancelled and any money remaining in the account will be forfeited one year from the date of my last purchase. See affidavit of GIBA Executive Director Kathy Banson-Verrico attached hereto as Exhibit B. (emphasis in original). MEMORANDUM OF LAW Section 17, Chapter 96-507, Laws of Florida, establishes GIBA, and lays out its powers, duties, and responsibilities. Section 17, Chapter 96-507, provides in pertinent part, as follows: Section 3, PURPOSES. -- (1) The authority is created for the purpose of acquiring, constructing, reconstructing, financing, owning, managing, providing, promoting, improving, expanding, maintaining, operating, regulating, franchising, and otherwise having complete authority, with respect to the Gasparilla Island Page 3 bridge and causeway within the territorial limits of Charlotte County, and areas adjacent thereto. It is further the purpose of this act to repose in the authority all powers with respect to operating, maintaining, repairing and ideas improving the bridge and and causeway, including the power to set br agi e toll rates and collect bridge tolls, and such other additional powers as are hereafter designated by this act. Section 6. POWERS AND DUTIES OF AUTHORITY. -- The authority shail have the following powers and duties, in addition to and supplementing other powers granted in this act and powers granted to authorities by general law: (3) To fix, modify, charge and collect toll rates and user fees from persons for the use of the bridge and causeway system at such levels as the authority deems appropriate regardless of the costs associated with the bridge and causeway system... The Plaintiffs seek a declaration that GIBA !acks the authority to set tolls and the toll structure for the bridge in the manner it has chosen. GIBA’s enacting legislation unequivocally grants it the authority to set toils for the bridge. Nothing in the enacting legislation limits GIBA’s authority to set the toll structure in the manner complained of by the Plaintiffs. The Plaintiffs simply do not like the toll structure in question. There is no basis under Florida law to support the Plaintiffs arguments. The Florida Second District Court of Appeals considered the proper analysis to conduct in considering the reasonableness of a toll, explained as follows: From the limited case law, one issue seems clear: “legality” incorporates the concept of a reasonable rate. Thus, in evaluating the legality of a toll, the circuit court is empowered to review its reasonableness. The case law at least implies that a reasonable rate would consider not only the annual cost of operation and maintenance, but also the need for a fair return on investment and the need to set aside funds to replace the bridge when it becomes old or obsolete. Section 338.165 would suggest that tolls might be reasonable if used to further improve related roadways. See § 338.165(4), Fla. Stat, (2004); see also McGovern v. Lee County, 346 So.2d 58 (Fla.1977). One would assume that a court would be obligated to give considerable deference to the decision of the political body setting the rate, but if a rate were so high as to be confiscatory, it would certainly be unreasonable. Page 4 Gargano v. Lee Cty. Bd. of Cty. Comm'ts, 921 So. 2d 661, 666 (Fla. 2d DCA 2006). Here the Court is not called upon to consider the reasonableness of the per trip toll, but instead, whether GIBA is prohibited from offering a discount pass and placing a time limit on the time that the pass must be used. The Plaintiffs have not demonstrated any authority prohibiting such a toll structure. The Plaintiffs do not argue that GIBA lacks the authority to set tolls for a discounted amount. The Plaintiffs do not argue that GIBA lacks the authority to provide for passes that expire after a stated term. Instead the Plaintiffs argue that GIBA lacks the authority to provide a discounted pass that expires after a stated term. The Plaintiffs purchased their discounted passes after the rule providing for forfeiture of funds not used within 12 months of purchase was enacted by GIBA. (See Complaint Exhibit A) (Verrico Dep. Tr. 17:9-20). Therefore, the Plaintiffs had at least constructive (if not actual) notice of the toll structure, and were not required to purchase a discount pass, but instead chose to purchase such a pass. GIBA has the authority to set tolls, and nothing prevents GIBA from setting the structure as done in this matter. WHEREFORE, Defendant GASPARILLA ISLAND BRIDGE AUTHORITY, requests that this Court enter a Final Summary Judgment in its favor and awarding such other and further relief as is deemed appropriate. Page 5 CERTIFICATE OF SERVICE | HEREBY CERTIFY that a true and correct copy of the above and foregoing has been furnished to the following: Norman S. Cannella, Sr., Esq. Rywant, Alvarez, Jones, Russo & Guyton, P.A. 109 N. Brush Street, #500 Tampa, FL 33602 Tel: 813-229-7007 ncannella@rywantalvarez.com twinkler@rywantalvarez.com Attorney for Plaintiff by {V¥électronically filing with the Clerk of Court through E-Filing Portal System which will send a notice of electronic filing; eral, Ud regular United States Mail, this \2te day of January, 2016. HENDERSON, FRANKLIN, STARNES & HOLT, P.A Attorneys for Defendant, Gasparilla Island Bridge Authority Post Office Box 280 Fort Myers, FL 33902-0280 239.344.1170 By: bh tb: BRUCE M. STANLEY, ESQ. Florida Bar No.: 187289 bruce.stanley@henlaw.com sandra.santiago@henlaw.com RICHARD B. AKIN, ESQ. Florida Bar No.: 68112 Richard.akin@heniaw.com brenda.sitar@henlaw.com #2155892 Page 6 IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, FLORIDA CIVIL ACTION CAPPY: JOINER and SALLY JOINER, Plaintiffs, CASE NO. 14-000785-SP GASPARILLA ISLAND BRIDGE AUTHORITY, an authority created by the Florida Legislature, COPY Fadl he Defendants. oe oe ste eee weeeel DEPOSITLON OF KATHY BANSON-VERRICO Taken Pursuant to Notice of Taking Deposition by Counsel for the Plaintiff DATE TAKEN: Thursday, November 12, 2015 TIME: 10:22 a.m. to 11:05 a.m. PLACE: Boca Grande Community Center 131 First Street West Boca Grande, FL 33921 Examination of the witness taken before: Lisa M. RPR, FPR, Rollins, Notary Public, Stale of Florida at Large Guardian Reporting, Inc. Serving All of Southwest Florida (866) 430-DEPO www. guardianreporting.com ewer EXHIBIT 1A ~ www.anthemreporting.com i 888.909.2720 || anthem@anthemreporting.com Page lo 2012? A Yes. Q And can you tell -~- has the rate structure remained the same since then? A Yes. Q Can you tell us what the rate structure has been since the changes in 2012? A Sure. The cash toll for a car is $6. We still have the annual pass, which is unlimited: One sticker, one car, 190 one year. We have the discount pass that is $97.50; that is al now for 25 trips. Those passes