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Filing # 62302104 E-Filed 10/03/2017 09:52:32 AM
IN THE CIRCUIT COURT OF THE 11th
JUDICIAL CIRCUIT, IN AND FOR
MIAMI-DADE COUNTY, FLORIDA
346 NW 29" Street, LLC and
others similarly situated,
CIVIL DIVISION: 27
Plaintiff,
CASE NO. 13-.37260 CA 01
vs.
CITY OF MIAML a Florida municipal
corporation, TOMAS REGALADO,
in his official capacity as Mayor, JOHNNY
MARTINEZ, in his official capacity as
City Manager, WILFREDO GORT, in his
official capacity as City Commissioner,
MARC SARNOFF, in his official capacity
as City Commissioner, FRANK CAROLLO,
in his official capacity as City Commissioner,
FRANCIS SUAREZ, in his official capacity
as City Commissioner, ard KEON HARDEMON,
in his official capacity as City Commissioner.
Defendants.
/
PLAINTIFF CLASS’S UNOPPOSED MOTION FOR APPROVAL OF
NOTICE OF CLASS CERTIFICATION
Plaintiff and Class Representative, 346 NW 29" Street, LLC, d/b/a Museo Vault (the
“Class”), by and through undersigned counsel, and without opposition from Defendant, the City
of Miami (“City”), moves for Court approval of the class certification notice (“Notice”) provided
to all known class members following this Court’s entry of its Order Granting Class Certification
(“Order”). In support, the Parties state as follows:
On April 28, 2015, the Court granted class certification to Plaintiff in this case. A copy of
the Class Certification Order is attached hereto as Exhibit “A.” The last section of the Order
instructs the Plaintiff, designated as the Class Representative pursuant to the Order, to providenotice to all known class members in accordance with Florida Rule of Civil Procedure 1.220(d)(2),
which states:
As soon as is practicable after the court determines that a claim or defense
is maintainable on behalf of a class, notice of the pendency of the claim or
defense shall be given by the party asserting the existence of the class to all
the members of the class. The notice shall be given to each member of the
class who can be identified and located through reasonable effort and shall
be given to the other members of the class in the manner determined by the
court to be most practicable under the circumstances. Unless otherwise
ordered by the court, the party asserting the existence of the class shall
initially pay for the cost of giving notice. The notice shall inform each
member of the class that (A) any member of the class who files a statement
with the court by the date specified in the notice asking to be excluded shall
be excluded from the class, (B) the judgment, whether favorable or not, will
include all members who do not request exclusion, and (C) any member
whe does not request exclusion may make a separate appearance within the
time specified in the notice.
Rule 1.220(d}(2), Fla. R. Civ. P. The Order stated that notice via U.S. mail was the most
practicable manner for communicating the notice.
This Court further required that the Notice include the following language:
1.
A class action has been filed in the Circuit Court of the Eleventh Judicial Court in
and for Miami-Dade County, Florida, Case No. 13-037260 CA 01. The class is
defined as all applicants, excluding DDR Miami Avenue, LLC, who filed
applications before November 6, 2011 for ad valorem tax exemptions pursuant to
Chapter 56, Article V of the Code of the City of Miami, entitled "Ad Valorem Tax
Exemption for Enterprise Zone Businesses," originally enacted 12-12-02, and
amended 6-22-06 (the “Ordinance”). The Defendants are the City of Miami,
Mayor Tomas Regalado in his official capacity, and the City Commissioners in
their official capacities (collectively, the “City”).
The class, represented by Plaintiff 346 NW 29" Street, LLC, d/b/a Museo Vault,
asserts two claims against the City. Count I is a declaratory action to find that the
City of Miami violated the Ordinance by failing and/or refusing to review
applications and by failing to recommend for approval or denial the applications to
the City Commission. Count II is for a writ of mandamus to compel the City of
Miami to pay tax exemptions to all applicants for each year the applicants qualified
under the Ordinance. The City of Miami’s defenses generally include the
discretionary language in the Ordinance, the expiration of the statute of limitations,
the expiration of the City’s authority under the Ordinance to provide tax
exemptions, and the non-qualifications of any applicants.3 If you wish to remain a member of the Class you do not have to do anything at this
time. The lawsuit will be prosecuted on your behalf by the representative Plaintiff
and Class Counsel
4 if you wish to be excluded from the Class, you must express your desire for
exclusion in writing, signed by you and postmarked ne later » 2015
(66 days from the postmark date on the notice from Class Counsel). You must send
your notification of exclusion to Class Counsel, Stevan J. Pardo, Esq., Pardo
Gainsburg, PL, 200 Southeast First Street, Suite 700, Miami, Florida, 33131
Registered mail is advised.
5. The judgment(s) in this Cause shall be binding on all class members unless you
advise Class Counsel in writing and signed by you that you wish to be excluded. If
you exclude yourself from the class action by the postmarked deadline, you will
not be bound by the class judgment(s), you will not share in any class recovery, and
you may pursue any individual claim you have through private counsel at your own
expense. If you choose to pursue an individual claim, you must file your complaint
with the Court within 90 days from the postmark date on this Notice from Class
Counsel.
(Order, p. 19-20) (Emphasis original).
Between May 14 and May 19, 2015, Plaintiff sent Notice by U.S. mail to the 67 known
class members. These class members’ identities were known because during discovery, the City
produced a chart listing the businesses that submitted applications to the City for tax exemptions
under the Ordinance. Each Notice was identical. A copy of the Notice sent to each known class
member is Exhibit “B.” Most significantly, none of the class members opted out of the class
The Notice conforms with the class certification notice requirements under Florida law.
First, the Notice contains the language, verbatim, required by the Court in its Order. Second,
pursuant to Rule 1.220(d)(2), and overlapping with the Court’s required language in the Notice as
per the Court’s Order, the Notice indicates that (A) any member of the class who files a statement
with the court by the date specified in the notice asking to be excluded shall be excluded from the
class, (B) the judgment, whether favorable or not, will include all members who do not request
exclusion, and (C) any member who does not request exclusion may make a separate appearance
within the time specified in the notice. Third, the Notice goes beyond these requirements andincludes a lengthy Q & A section that explains in greater detail the process of the class action, the
claims and defenses, lawyer representation, the opt-out procedure and class member rights, the
potential benefits that class members may receive if the lawsuit is successful, and the resolution
procedure. The Notice also invited class members to contact Class Counsel with any further
questions about the class action or to review pleadings to date, or to assist with the lawsuit if they
chose. The City has reviewed the Notice and the two cover letters provided to the class and has
no objections to their form or contents.
The Parties are scheduling before this Court a hearing for preliminary approval of a case
settlement. The City Commission must approve any proposed settlement. Knowing this, the
Parties have agreed that the settlement agreement can be rescinded or canceled by either Party at
any time before the Court’s final approval of the settlement and entry of final judgment. Upon
approval by the City Commission, the Parties will submit the final draft of the settlement and will
present any other required showings to the Court.
The City has no opposition to the entry of an order approving the Class Certification Notice.
WHEREFORE, the Plaintiff Class respectfully requests that this Court approve the Class
Certification notice provided to all known Class Members.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing document was served
by e-mail in compliance with 2.516, Fla.R.Jud.Admin., on October 3, 2017 to
Kerri L. McNulty, Esquire
Henry J. Hunnefeld, Esquire
City of Miami, Office of the City Attorney
444 S.W. 2™ Avenue, Suite 945
Miami, Florida 33130-1910
E-Mail: kimenulty@miamigov.com
hjhunnefeld@miamigov.comBy:
PARDO JACKSON GAINSBURG, PL
Counsel for Plaintiff
200 S.E. First Street, Suite 700
Miami, Florida 33131
Phone: (305) 358-1001
Facsimile: (305) 358-2001
Email: Spardo@pardojackson.com
nrekant@pardojackson.com
mfuentes@pardojackson.com
/s/ Stevan J. Pardo
Stevan J. Pardo
Florida Bar No. 438626
Nicole Rekant
Florida Bar No. 0422053Exhibit “A°
IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT
IN AND FOR MIAMI-DADE COUNTY, FLORIDA
346 NW 29" Street, LLC and others
similarly situated, GENERAL JURISDICTION DIVISION
Plaintiffs, CASE NO.: 13-037260 CA 01
vs.
CITY OF MIAMI, a Florida municipal
corporation, TOMAS REGALADO, in his
official capacity as Mayor, JOHNNY
MARTINEZ, in his official capacity as
City Manager, WILFREDO GORT, in his
official capacity as City Commissioner,
MARC SARNOFF, in his official capacity
as City Commissioner, FRANK CAROLLO,
in his official capacity as City Commissioner,
FRANCIS SUAREZ, in his official capacity
as City Commissioner, and KEON HARDEMON,
in his official capacity as City Commissioner.
Defendants.
/
ORDER GRANTING CLASS CERTIFICATION
THIS MATTER came to be heard on January 13, 2015 (the “Hearing”) on Plaintiff's
Motion for Class Certification (the “Motion’”). The Court has reviewed the Motion, Defendant’s
response to the Motion, conducted an evidentiary hearing,! heard argument of counsel, and
otherwise been fully advised in the premises. Upon due consideration, it is
ORDERED AND ADJUDGED that the Motion is GRANTED based on the following
findings of fact and conclusions of law
' At the Hearing, the parties stipulated to enter into evidence the following: (1) all exhibits attached to the Motion,
the City’s opposition to the Motion, and Museo’s reply; (2) the Todd Ruderman and Herb Friesner depositions: (3)
the Todd Ruderman, Herb Friesner, and Stevan Pardo affidavits; (4) Todd Ruderman’s resume; (5) three letters from
Economic Development Consultants, Inc. to the City; (6) Museo’s Answers to Interrogatories; and (7) Motion to
Dismiss hearing transcript. (Hearing transcript p. 6-8, 11).346 NW 29" Street, LLC v. City of Miami, et al Case No. 13-037260 CA 01
Order Granting Class Certification page 2
L General Background
This is an action by a business owner, on behalf of a putative class, whose properties
lie within the City of Miami’s Enterprise Zone, for a declaration of their rights to tax exemption
under a City Ordinance enacted for their benefit, and to compel the City, by mandamus, to
provide the putative class members with the benefits of the tax exemption to which they claim
entitlement.
A. The Ordinance
Plaintiff, 346 NW 29" Street, LLC, d/b/a Museo Vault (“Museo”), and other businesses
similarly situated (the “Putative Class”) sued the City of Miami for the City’s alleged failure and
refusal to review and approve qualified applications pursuant to Ordinance No. 12308, which
ordinance was originally adopted December 12, 2002, and amended by Ordinance Nos. 12814
and 12913, adopted June 22, 2006 and May 10, 2009, (collectively, the “Ordinance”). The
Ordinance sets forth the procedure by which new and expanding businesses located within the
City of Miami Enterprise Zones may apply for, and obtain, ad-valorem tax exemptions (the “Ad-
Valorem Tax Exemption Program”). The Ordinance was adopted after approval by referendum
held on November 6, 2001, as required by Section 196.1995, Florida Statute. The Ordinance
was codified under Chapter 56 of the City of Miami Code. (Doc 26-37) Section 56-112 of
Ordinance provides that the exemption applies only to the City’s municipal millage; it does not
apply to the full amount of taxes paid to Miami-Dade County.
The purpose of the Ordinance is to revitalize and to rehabilitate distressed areas
(“Enterprise Zones”), to encourage businesses to locate and expand in these areas, to stimulate
employment among area residents, and to enhance the areas’ general social and economic well-
being. The Ordinance incentivizes business owners in the Enterprise Zones to invest in their346 NW 29" Street, LLC v. City of Miami, et al Case No. 13-037260 CA 01
Order Granting Class Certification page 3
respective business by offering tax exemptions based on the municipality’s millage, and thereby
offset some of the cost of their investment. The businesses’ investments are advantageous to the
City because investments increase employment in the Enterprise Zones, and thereby ease
financial burdens on the City to support the unemployed, and improve the City’s tax base
through increased business activity in the Zone. (Doc 1226, 2344)
Section 56-114 of the Ordinance requires applicants to provide certain information in
their applications to demonstrate that they meet the requirements of the Ordinance. Those
requirements include a description of the improvements both to real and tangible property for
which the exemption was requested, proof that the businesses has employed at least five full-
time employees,” and proof that yearly real estate taxes were paid.
Section 56-119 of the Ordinance provides that the tax exemption, once granted, will be
renewed each year for a maximum period of ten years upon the filing of annual renewal
applications that demonstrate continued qualification under the Ordinance. The Ordinance
further states in Section 56-122 that
the authority of the city commission to grant tax exemptions pursuant to this
article shall expire, pursuant to state law, ten years after the date of the
referendum granting the authority to the city commission to grant the exemptions.
The expiration of the City Commission’s authority to grant tax exemptions shall
not affect the unexpired term of any exemption in effect as of the Expiration Date.
The referendum which authorized the exemption occurred on November 6, 2001. (Doc
53) The parties agreed at the Hearing that the City could not grant new tax exemptions to
applicants who initially filed applications after November 6, 2011. The parties disagreed,
however, on the ability of the City to provide tax exemptions to the Putative Class, defined as
? Section 56-120, entitled “Waiver of job requirement eligibility criterion,” states that the city commission, upon the
recommendation of the city manager, may upon approval by no less than a four-fifths majority vote, waive the job
creation requirement described in subsection 56-113(a).346 NW 29" Street, LLC v. City of Miami, et al Case No. 13-037260 CA 01
Order Granting Class Certification page 4
applicants who applied before November 6, 2011, but whose applications the City never
reviewed; thus, no exemptions were ever approved prior to the expiration date of the Ordinance.
Section 56-116 of the Ordinance provides that
All applications shall be reviewed by the Department [of Economic Development
of the City] which sha// transmit its findings to the city manager, who shall either
recommend approval to the city commission or decline to recommend approval.”
(Emphasis supplied).
Despite the Ordinance’s mandatory direction which appears thrice in the provision, Museo’s
application was never reviewed or approved. (Aff. Ruderman §9) None of the Putative Class
Members’ applications was ever recommended either for approval or denial to the City
Commission nor was any granted tax exemption. (Aff. Friesner, 419)
B. The City’s Actions Under the Ordinance
After years of inaction, however, in 2009, the City did review and deem twelve (12) other
applications qualified. (Doc 413) For each of those twelve (12) businesses, the City obtained
revenue implication figures from the County, which calculated the amount of taxes that would be
exempt under the Ordinance each year if those applications were approved. The County
furnished to the City the precise dollar amounts of exempt taxes that the City would lose upon
approving those applications. The revenue implication chart indicated the amount of taxes that
would be exempt -- starting with the first year the applicant submitted its application, and
extending for nine (9) additional years. The chart was not limited to providing revenue
implications of tax exemptions to the year application was made. (Doc 309-310) Section 56-115
of the Ordinance sets forth this process of the County’s duty to calculate the applicants’ proposed
tax exemptions
After the City obtained from the County the precise tax implications of the exemptions
for the twelve (12) qualified applicants, Marcus James, project manager for the Office of the City346 NW 29" Street, LLC v. City of Miami, et al Case No. 13-037260 CA 01
Order Granting Class Certification page 5
Manager and Economic Initiatives, emailed the City legal department on April 23, 2009, and
requested that the City attorneys draft ordinances for the twelve (12) businesses for proposal to
the City Commission. (Doc 412) Section 56-110 of the Ordinance provides that tax exemptions
be granted by ordinance to each qualifying new or expanding business.
Nearly a year and a half later, on September 16, 2010, the twelve (12) applicants were
scheduled on the agenda before the City Commission; however, the Commission meeting
minutes reflect that City Manager, Carlos Migoya, withdrew the applications before they and
their respective ordinances could be presented to the City Commission for consideration. (Doc
274 -280) Mr. Migoya did not give any reason for the withdrawal. The applications were never
again placed on an agenda for consideration by the City Commission. At the City Commission
meeting, Mr. Migoya never indicated whether he approved or disapproved the applications. (Doc
274 -280) Neither Mr. Migoya nor the City Commission made any findings of fact or referred
to any evidence to substantiate a conclusion that any applicant failed to meet the requirements
for the tax exemption under the Ordinance, nor did he otherwise demonstrate a substantive basis
for not granting tax exemptions to any of the twelve (12) applicants. (Doc 274 -280)
The one exception was DDR Miami Avenue, LLC (“DDR”), with a tax exemption valued
at a mere $109.00 per year. The City Commission granted DDR a tax exemption under the
Ordinance on January 13, 2011, effective January 24, 2011. (Doc 1003-1009) Thereafter, DDR
waived the exemption (Doc 1010). As a result of this waiver, no exemption was actually
provided to DDR. Other than DDR, in the more than thirteen (13) years since the Ordinance
became law, no other applicant has been granted a tax exemption, including Plaintiff Museo
(Doc 1081; Friesner Aff. 19)
The evidence reflects that the Putative Class Members and Economic Development346 NW 29" Street, LLC v. City of Miami, et al Case No. 13-037260 CA 01
Order Granting Class Certification page 6
Consultants, Inc. (“EDC”), which assisted some applicants, including Museo, with their
applications, repeatedly requested the City for action on their applications, however, while the
City promised action, it failed to review any of the applications. (Doc PL 1-8, 12-15, 18-20, 25-
26, 33-36, 40, 50, 52, 58, 60, 64, 66-73, 75-76, 92) The evidence also reflects that, while the
City accepted applications from Putative Class Members since 2003 (Doc 1155), and cashed
each of their non-refundable $100.00 checks for the application fee (Friesner Aff. 10), no
applications were reviewed or scheduled for consideration by the City Commission until 2010
(Doc 833-835).
The September 2, 2010 draft ordinance, which granted DDR a tax exemption, specifically
explained the nearly nine (9) year delay in implementing the tax exemption Program under the
Ordinance
Due to procedural errors with the original ordinance 12308, the City has been
unable to approve any ad valorem tax exemptions to date. However, ordinance
12308 has been amended to correct the procedural errors. (Doc 835)
The amendment did not alter either the purpose of the Ordinance or the basic requirements for
qualification, namely: a description of the improvements to real property and tangible property,
proof of job creation, and payment of past taxes. Sections 56-113 and 56-114.
C. The Putative Class
The Putative Class is comprised of Museo and all other applicants, excluding DDR, whose
applications were filed before November 6, 2011, and which were never reviewed or presented
to the City Commission for approval. The Putative Class seeks a declaration that the City
violated the following duties under the Ordinance: (Count I) (a) the City failed to review and
recommend applications for approval or denial to the City Commission and (b) the City
3 As stated above, the twelve (12) applications that were reviewed and put on the City Commission agenda in
September 2010 were withdrawn without explanation.346 NW 29" Street, LLC v. City of Miami, et al Case No. 13-037260 CA 01
Order Granting Class Certification page 7
Commission failed to grant or reject the applications. (Count 2) The putative class also seeks a
writ of mandamus to compel the City to provide the Putative Class the tax exemptions for which
they applied because the City (a) abused its discretion by capriciously and arbitrarily refusing to
perform its duties under the Ordinance, and (b) disregarded the tax incentives it was legally
required to provide to qualified candidates without providing any basis for denying their
applications. The Putative Class argues further that, by its conduct, the City has lost its right of
discretion and that the writ of mandamus should include an award to the Putative Class Members
in an amount equal to the total tax exemptions for which they qualified over the life of the
Ordinance.
D. Putative Class Representative, Museo Vault
In 2005, Museo’s principals purchased property and began paying real estate taxes on it.
(Aff. Ruderman, 94) (Aff. Ruderman, 93-4; Ruderman depo p. 8-9) In 2007 and 2008, 346 NW
29h Street, LLC, d/b/a Museo Vault invested millions of dollars to build a high-end art storage
facility on the property. (Aff. Ruderman, 4; Ruderman depo p. 8-9, 28) In October 2008,
Museo completed construction and opened for business. Its first customers arrived in November,
2008. (Ruderman depo p. 28) In 2009, EDC’s Herb Friesner filed an application under the
Ordinance on behalf of Museo. (Doc PL 634, PL 113-122) The City neither reviewed Museo’s
application nor informed Museo whether its application was granted or denied. (Ruderman Aff.
”)
I. Requirements for Class Certification
To obtain class certification, the proponent of class certification must plead and prove the
elements required under Florida Rule of Procedure 1.220(a). JnPhyNet Contr. Servs. v. Soria, 33346 NW 29" Street, LLC v. City of Miami, et al Case No. 13-037260 CA 01
Order Granting Class Certification page 8
So.3d 766, 771 (Fla. 4th DCA 2010); Canal Ins. Co. v. Gibraltar Budget Plan, Inc., 41 So0.3d
375, 377 (Fla. 4th DCA 2010). These four (4) elements are:
(1) the members of the class are so numerous that separate joinder of each
member is impracticable [numerosity],
(2) the claim or defense of the representative party raises questions of law or
fact common to the questions of law or fact raised by the claim or defense of each
member of the class [commonality],
(3) the claim or defense of the representative party is typical of the claim or
defense of each member of the class [typicality], and
(4) the representative party can fairly and adequately protect and represent the
interests of each member of the class [adequacy]
Fla. R. Civ. P. 1.220(a); Sosa v. Safeway Premium Finance, Co. 73 So. 3d 91 (Fla. 2011). In
addition, the proponent of class certification must satisfy one of the three (3) subdivisions of Fla.
R. Civ. P. 1.220(b).4
A. Numerosity
Herb Friesner submitted twenty-six (26) applications. (Friesner Aff. §20) There were also non-
EDC related Putative Class Members. (Hearing Transcript p.45) (Doc 1155) And, the City
produced a list of sixty-seven (67) applicants in discovery. (Ex. G to Plaintiff's Motion). To
4 Florida Rule of Civil Procedure 1.220(b)(3) provides:
(3) the claim or defense is not maintainable under either subdivision (b)(1) or (b)(2), but the questions of law or
fact common to the claim or defense of the representative party and the claim or defense of each member of
the class predominate over any question of law or fact affecting only individual members of the class, and
class representation is superior to other available methods for the fair and efficient adjudication of the
controversy. The conclusions shall be derived from consideration of all relevant facts and circumstances,
including
(A) the respective interests of each member of the class in individually controlling the prosecution of
separate claims or defenses,
(B) the nature and extent of any pending litigation to which any member of the class is a party and in which
any question of law or fact controverted in the subject action is to be adjudicated,
(C) the desirability or undesirability of concentrating the litigation in the forum where the subject action is
instituted, and
(D) the difficulties likely to be encountered in the management of the claim or defense on behalf of a class.346 NW 29" Street, LLC v. City of Miami, et al Case No. 13-037260 CA 01
Order Granting Class Certification page 9
require each class member to file a separate lawsuit would be impractical because of the risk of
conflicting rulings.”
Therefore, the Court finds that there are sufficient members to qualify as a class, and
Plaintiff satisfies the numerosity element of class certification.
B. Commonality
The City did not contest a finding of commonality in its opposition papers or at the
Hearing, and the Court finds that this factor is sufficiently shown. Museo and the Putative Class
members satisfy the commonality requirement because their claims arise from the same course
of conduct by the City. The following facts are common to each class member: each (a)
submitted applications before November 6, 2011; (b) paid the $100.00 application fee; (c)
provided all materials and documents necessary to demonstrate their qualifications; (d) did not
receive any review or recommendation by the City Manager as to their respective application(s);
and (e) received no tax exemption for qualified applications. In short, all of the putative class
members’ claims arise from the City’s failure to review and recommend applications.
All class members also raise the same list of legal questions:
a. Did the City comply with its obligation under Section 56-116 of the Ordinance to
review each application, to transmit findings to the City Manager, and
recommend or decline to recommend approval to the City Commission for each
applicant who submitted an application before November 6, 2011, and paid the
application fee?
5 This analysis is similar to Rule 1.220(b)(1) below.
© The twelve (12) applications that the City reviewed but withdrew from City Commission consideration are
included since they allegedly suffered the same outcome of never having been considered.346 NW 29" Street, LLC v. City of Miami, et al Case No. 13-037260 CA 01
Order Granting Class Certification page 10
b Did the City abuse its discretion to grant tax exemptions (1) by failing to
implement the tax exemption program for nearly nine (9) years, (2) by failing tp
recommend approval or denial of the applications; and (3) by failing to provide a
reasonable basis for the City’s failure to grant any tax exemptions
c. Should qualified class members, be entitled to additional tax exemptions for each
successive year after they filed their applications, if they can demonstrate their
continued qualification under the Ordinance? Should their failure to file renewal
applications be excused on the grounds that it would have been futile for them to
file renewal applications when the City never reviewed their initial applications?
d. If the City is found to have breached its duty to review and approve applications,
should its restitution to the class members consist of paying: (1) the amount of the
tax exemption each qualified class member would have received in the year it
filed its application;” (2) the amount of tax exemption each class member would
have received for each subsequent year it qualified, for a total of ten (10) years;
and (3) the accrued interest on the foregoing amounts?
Because these facts and legal questions apply equally to all class members, the Plaintiff has
satisfied the commonality requirement for class certification
C. Typicality
The key inquiry for a trial court when it determines whether a proposed class satisfies the
typicality requirement is whether the class representative possesses the same legal interest and
has endured the same legal injury as the class members. See Morgan, 33 So.3d at 65 (citing
” Acknowledging that the Ordinance was not implemented and abatements approximating $2.5 million were owed to
qualified applicants as of November, 2009, the City considered and approved the provision of “back taxes” in the
form of phase-out tax credits. The City even created a plan for repaying overdue abatements to qualified applicants,
and calculated those amounts. However, no tax credits or abatements of any kind were ever granted to any Putative
Class members, including Museo. (Doc 1081-1083)346 NW 29" Street, LLC v. City of Miami, et al Case No. 13-037260 CA 01
Order Granting Class Certification page 11
Clausnitzer v. Fed. Express Corp., 248 F.R.D. 647, 656 (S.D.Fla.2008)). The test for typicality
focuses generally on the similarities between the class representative and the putative class
members. /d. The typicality requirement is satisfied when there is a strong similarity in the
legal theories upon which those claims are based and when the claims of the class representative
and class members are not antagonistic to one another. See Morgan, 33 So.3d at 65
1. City’s Statute of Limitations Defense Would Create An Unjust Result
The City argued that the four-year statute of limitations varies among the Putative Class
members. Specifically, the City contends that, in any given year, as to an application filed by
March 1, the due date for applications under the Ordinance, the statute of limitations began to
run as to that applicant on October 1 because the City asserts “Florida law requires that all taxes
be certified by individual municipalities by or before October 1 of any given year.” (Hearing
transcript, p.51-52) Therefore, the City argues, if an applicant did not receive an exemption on
its October 1 tax bill, the applicant should have known at that time that it had been denied an
exemption, and the four-year statute of limitations had begun to run
The Court does not agree that an applicant should have known by October 1 that its
application was officially denied by the City merely because its tax bill did not reflect the
exemption sought seven (7) months earlier, and no evidence was presented to support the
argument.
Furthermore, the City never actually denied any of the applications. (Hearing transcript,
p. 57-64) So, the City could not have notified any of the applicants of a denial because there
were no denials. Fundamental to the fairness of a statute of limitations in any context is notice
that one’s rights have been violated.
The City also argues that Section 194.171, Florida Statutes time-bars all applicants’346 NW 29" Street, LLC v. City of Miami, et al Case No. 13-037260 CA 01
Order Granting Class Certification page 12
claims. According to Section 194.171, the statute of limitations begins to run from the
date the assessment being contested is certified for collection under s, 193.122(2)
or after 60 days from the date a decision is rendered concerning such assessment
by the value adjustment board if a petition contesting the assessment had not
received final action by the value adjustment board prior to extension of the roll
under §197.323
But, Section 194.171 is not applicable to the City’s tax exemption under the Ordinance
Plaintiffs are not challenging the payment of any tax assessment to the City or the County
(Hearing transcript, p. 39)
The City also argues that a subset of the Putative Class Members -- those for whom
EDC’s principal, Herb Friesner, filed applications -- are not typical of the class, and therefore the
class should be denied certification. The City argues that Mr. Friesner followed up with the City
as to the status of the applications, and learned that his clients’ applications would not be
reviewed. The City argues that the statute of limitations should be calculated from the date Mr.
Friesner learned of the City’s position, and therefore such Putative Class Members are not
typical of the rest of the class. (Hearing transcript, p. 58-62, 66-67)
However, the evidence did not demonstrate that Mr. Friesner received notice from the
City that his clients’ applications had been denied. (Hearing transcript, p. 60-61) To the
contrary, the evidence presented demonstrates that the City never told Mr. Friesner that his
clients’ applications were recommended to be denied. (Friesner depo, p. 34, 36, 39-41) Mr.
Friesner testified, and his hand-written list of meetings and communications with City officials
indicates, that until April 2012, he was still urging the City to review his clients’ applications.
(Friesner depo, p. 66, Ex. 10)
In addition, as stated in Beyer v. City of Marathon, 37 So. 34 932 (Fla. 3" DCA 2010),
“Tt would be patently unfair, if not absurd, to allow the county, and later the City, to delay the346 NW 29" Street, LLC v. City of Miami, et al Case No. 13-037260 CA 01
Order Granting Class Certification page 13
timely processing of the BUD application, provide a determination after the expiration of the
purported limitations period, and then claim the expiration of the limitations period as a
defense”
1. The Ordinance Has Not Expired as to the Class because its Members Filed
Applications Before November 6, 2011
Similar to the City’s statute of limitations defense is its contention that the Ordinance has
expired under its own terms, and consequently, the City now does not have authority to grant tax
exemptions. Section 56-122 of the Ordinance states that it expires ten (10) years after the date
of the approval of the referendum by the voters. Since the voters approved the referendum on
November 6, 2001, the City argues its authority expired on November 6, 2011.
However, the Ordinance, it also provides that
the expiration of the city commission’s authority to grant tax exemptions shall not
affect the unexpired term of any exemption in effect as of the expiration date.
A party cannot circumvent its obligations through its own inaction or neglect, and then
use its own inaction or neglect as a defense the claim against it. Florida law supports this
conclusion.
2. Factual Differences that May Render Some Class Members Unqualified for a Tax
Exemption or which Vary Damages Do Not Destroy Typicality
The claims and remedies sought by Museo are identical to those of the other class
members. That Museo may not ultimately qualify for a Tax Exemption does not change that
each class member bases its action on the City’s alleged failure to comply with the directives of
the Ordinance and arbitrary refusal to grant tax exemptions to qualified applicants.
Moreover, it is a ministerial act to demonstrate a class member’s qualification for the Tax
Exemption. The requirements are clearly set forth in the short checklist in Sections 56-113 and
56-114 of the Ordinance. Those requirements can be reduced to the two (2) essential elements:346 NW 29" Street, LLC v. City of Miami, et al Case No. 13-037260 CA 01
Order Granting Class Certification page 14
(1) whether the applicant increased its employment roll by five full-time jobs, and (2) whether
the applicant is current on its property taxes.
With their initial applications, the class member furnished employee rolls which evidence
their hiring of employees. Subsequent years easily can be proven through payroll documents
The City’s public records will evidence whether a class member paid its taxes. Thus, the
ministerial task of determining each class member’s qualifications is not a bar to typicality. See
Collins y. Erin Capital Management, LLC, 290 F.R.D. 689, 700 (S.D. Fla. 2013) (citations
omitted) (finding typicality despite the need for each plaintiff to make a threshold showing that
money collected qualified as “consumer debt” as opposed to another type of debt not covered by
Florida Debt Collection Practices Act's requirement.
D. Adequacy
Adequacy requires that “the representative party can fairly and adequately protect and
represent the interests of each member of the class.” Sosa at 115. That inquiry has two prongs
First, the qualifications, experience, and ability of class counsel to conduct the litigation must be
considered. /d. Second, the court must determine whether the class representative's interests are
antagonistic to the interests of the class members. /d.
The City has not objected to the adequacy of Museo’s counsel. Thus, the Court finds
that Plaintiff counsel’s 30-plus years of legal experience in complex business litigation, at both
the trial and appellate levels, the first prong of the adequacy requirement has been met. City of
Pompano Beach vy. Fla. Dep't of Agric., 2002 WL 1558217 *4 (Fla. 17th Cir.Ct. Jan. 24, 2002)
(recognizing class counsel's qualifications based on law firm biographies).
Similarly, the City has not asserted that Museo’s interests are antagonistic to those of the
rest of the class. Based on the evidence introduced at the Hearing, including Mr. Ruderman’s346 NW 29" Street, LLC v. City of Miami, et al Case No. 13-037260 CA 01
Order Granting Class Certification page 15
deposition testimony, the Court finds that Mr. Ruderman can adequately represent the class. The
Court does not find any conflict between the interests of Museo or Mr. Ruderman and any other
class member. Museo’s interests are fully aligned with those of the other class members. The
adequacy requirement is therefore met. See City of Tampa vy. Addison, 979 So. 2d 246 (Fla. 2d
DCA 2007) (“It did not appear at the hearing-and the City did not contend-that the City had any
interests that were antagonistic to the interests of the other members of the proposed defendant
class. Thus the second prong of the adequacy requirement was satisfied.”)
E. The Class Meets the Requirements of 1.220(b)(1), (b)(2), and (b)(3)
1. 1.220(b)(1) is Satisfied Due to the Risk of Incompatible Verdicts in Individual Suits
Rule 1.220(b)(1) permits class treatment if the prosecution of separate claims or defenses
would create a risk of inconsistent or varying adjudications concerning class members which, as
a practical matter, would be dispositive of the interests of absent members of the class or
substantially impair or impede their ability to protect their interests.* That risk is present here.
The potential for inconsistent or varying adjudications is precisely what Rule 1.220(b)(1) was
designed to prevent. The Court finds that this element is satisfied
2. 1.220(b)(2) is Met Because the City Treated All Class Members the Same
The class satisfies Rule 1.220(b)(2) because “the party opposing the class has acted or
refused to act on grounds generally applicable to all the members of the class, thereby making
5 More specifically, Rule 1.220(6)(1) provides for the certification of a class where: (1) the prosecution of separate
claims or defenses by or against individual members of the class would create a risk of: (a) inconsistent or varying
adjudications concerning individual members of the class which would establish incompatible standards of conduct
for the party opposing the class. or (b) adjudications concerning individual members of the class which would, as a
practical matter, be dispositive of the interest of other members of the class who are not parties to the adjudications,
or substantially impair or impede the ability of other members of the class who are not parties to protect their
interests.346 NW 29" Street, LLC v. City of Miami, et al Case No. 13-037260 CA 01
Order Granting Class Certification page 16
final injunctive relief or declaratory relief concerning the class as a whole appropriate.” As
indicated above, this element has been met.
3 Rule 1.220(b)(3) is Met Because Common Issues Predominate
To meet the requirements of Rule 1.220(b)(3), the party moving for class certification
must establish that the class members' common questions of law and fact predominate over
individual class member claims. See Fla. R. Civ. P. 1.220(b)(3). Florida courts have held that
common questions of fact predominate when the defendant acts toward the class members in a
similar or common way. See Stone v. CompuServe Interactive Servs., Inc., 804 So.2d 383, 388
(Fla. 4th DCA 2001).
In this case, the Putative Class members satisfy the predominance element because the
common class questions require generalized proof, and the City’s defense -- that it had inherent
discretion to even review or consider the applications, also pertains to all class members. If the
Court should find that the City was obligated to review and consider the applications, then the
Court would grant the same relief to all of the class.
In this circumstance, the monetary prong of the class’s remedy does not predominate
because it would be supplemental and incidental to the requested declaratory judgment. Should
the Court’s declaratory judgment determine that the City violated the Ordinance, and, that
supplemental relief is warranted, then the City would be deemed liable and damages would flow
directly from that liability to the class as a whole on the claim forming the basis of the
declaratory judgment. Any variances in the individual recoveries between the class members
would be calculable by referring to the portion of taxes pertaining to the City millage that the
class members paid in the past. These amounts are available from the public records, which
actually strengthens the predominance of the class claims.346 NW 29" Street, LLC v. City of Miami, et al Case No. 13-037260 CA 01
Order Granting Class Certification page 17
Rule 1.220(b)(3) also requires consideration of all relevant facts and circumstances,
including (A) the respective interests of each member of the class in individually controlling the
prosecution of separate claims or defenses, (B) the nature and extent of any pending litigation to
which any member of the class is a party and in which any question of law or fact controverted
in the subject action is to be adjudicated, (C) the desirability or undesirability of concentrating
the litigation in the forum where the subject action is instituted, and (D) the difficulties likely to
be encountered in the management of the claim or defense on behalf of a class. The Court finds
that class representation is superior to other available methods for the fair and efficient
adjudication of this case. Individual suits would require a repetition of the same evidence for
each class member. And, there is no evidence that the case would be unmanageable.
Museo has Legal Standing to Serve as Class Representative
A threshold inquiry in a motion for class certification is whether the class representative
has standing to represent the putative class members. See Stone v. CompuServe Interactive
Servs., 804 So.2d 383, 388 (Fla. 4th DCA 2001). To satisfy the standing requirement for a class
action claim, the class representative must show that a case or controversy exists between him or
her and the defendant, and that this case or controversy will continue throughout the litigation
See Olen Props.Corp. v. Moss, 981 S0.2d 515, 517 (Fla. 4" DCA 2008)
Here, Museo claims an economic injury, the loss of the Tax Exemption to which it claims
entitlement. This satisfies the actual injury requirement of standing. Museo may pursue redress
in the form of a declaration that the City breached its obligations under the Ordinance. Museo
may also seek mandamus to compel payment of the Tax Exemptions to which it was entitled for
each year Museo qualified under the Ordinance.
F. Conclusion346 NW 29" Street, LLC v. City of Miami, et al Case No. 13-037260 CA 01
Order Granting Class Certification page 18
Based on the above findings of fact and conclusions of law, the Court finds that Museo
and the Putative Class members meet the requirements under
1
Rule 1.220(b)(1) because individual suits would create a risk of inconsistent verdicts
as to whether the City had a duty to comply with the directives of the Ordinance;
Subsection (b)(2) of the Rule because the City has acted or refused to act in a manner
applicable to the entire Putative Class; proving monetary damages would be a
ministerial act, and would not play a predominant role in the litigation so as to
significantly outweigh the benefits of a class action lawsuit;
Subsection (b)(3) of the Rule because common issues predominate over individual
ones. Qualification under the Ordinance is a ministerial task which is evidenced by
payroll records and the County tax collector’s public records. If the declaratory
judgment should find the City’s liable to the class, then the Court may proceed to
calculate the amount of individual class member Tax Exemptions due from such
records.
In sum, Plaintiff Museo has satisfied the requirements for class certification and for class
representative. The class is defined as all applicants, excluding DDR Miami Avenue, LLC, who
filed applications pursuant to the Ordinance prior to November 6, 2011 (the “Class Members”).
G. Notice Requirements Under Rule 1.220(d), Fla. R. C .
Pursuant to Rule 1.220(d)(1) and (2), Fla. R. Civ. P., notice of the pendency of the claims
shall be given by Plaintiff Museo to all the Class Members. Due process in class actions requires
notice to all Class Members who are identifiable through reasonable efforts. Written notice by
mail to the Class Members is the most practicable manner in this case. Because the City has
superior means to review its records and assemble the information, the City shall furnish to346 NW 29" Street, LLC v. City of Miami, et al Case No. 13-037260 CA 01
Order Granting Class Certification page 19
Plaintiff Museo’s counsel a complete list of the Class Members within 60 days of the date of
this Order. Such list shall contain the name, last known address, and application date of each
Class Member.”
Upon receipt of the list of from the City, Plaintiff Museo shall provide the following
notice to each Class Member”
1.
i)
w
A class action has been filed in the Circuit Court of the Eleventh Judicial Court in
and for Miami-Dade County, Florida, Case No. 13-037260 CA 01. The class is
defined as all applicants, excluding DDR Miami Avenue, LLC, who filed
applications before November 6, 2011 for ad valorem tax exemptions pursuant to
Chapter 56, Article V of the Code of the City of Miami, entitled "Ad Valorem
Tax Exemption for Enterprise Zone Businesses," originally enacted 12-12-02, and
amended 6-22-06 (the “Ordinance”). The Defendants are the City of Miami, City
of Miami Mayor Tomas Regalado in his official capacity, and the City
Commissioners in their official capacities (collectively, the “City”).
The class, represented by Plaintiff 346 NW 29h Street, LLC, d/b/a Museo Vault,
asserts two claims against the City. Count Lis a declaratory action to find that the
City violated the Ordinance by failing and/or refusing to review applications and
by failing to recommend for approval or denial the applications to the City
Commission. Count II is for a writ of mandamus to compel the City to pay tax
exemptions to all applicants for each year the applicants qualified under the
Ordinance. The City’s defenses generally include the discretionary language in
the Ordinance, the expiration of the statute of limitations, the expiration of the
City’s authority under the Ordinance to provide tax exemptions, and the non-
qualifications of any applicants.
If you wish to remain a member of the Class you do not have to do anything at
this time. The lawsuit will be prosecuted on your behalf by the representative
Plaintiff and Class Counsel
If you wish to be excluded from the Class, you must express your desire for
exclusion in writing, signed by you and postmarked no later than 60 days from the
postmark date on the notice from Class Counsel You must send your
notification of exclusion to Class Counsel, Stevan J. Pardo, Esq., Pardo
Gainsburg, PL, 200 Southeast First Street, Suite 700, Miami, Florida, 33131
Registered mail is advised.
The judgment(s) in this Cause shall be binding on all class members unless you
advise Class Counsel in writing and signed by you that you wish to be excluded.
° Museo may need to conduct research if any addresses provided by the City should no longer be current.
1 See, e.g. Holman v. Student Loan Xpress, Inc., WL WE *6 (M.D. Fla., Nov. 19, 2009); Roughton v. R.J.
Reynolds Tobacco Co., 129 So. 3d 145 (Fla. 1 DCA 2013).346 NW 29" Street, LLC v. City of Miami, et al Case No. 13-037260 CA 01
Order Granting Class Certification page 20
If you exclude yourself from the class action by the postmarked deadline, you will
not be bound by the class judgment(s), you will not share in any class recovery,
and you
Preview
Filing # 62302104 E-Filed 10/03/2017 09:52:32 AM IN THE CIRCUIT COURT OF THE 11th JUDICIAL CIRCUIT, IN AND FOR MIAMI-DADE COUNTY, FLORIDA 346 NW 29" Street, LLC and others similarly situated, CIVIL DIVISION: 27 Plaintiff, CASE NO. 13-.37260 CA 01 vs. CITY OF MIAML a Florida municipal corporation, TOMAS REGALADO, in his official capacity as Mayor, JOHNNY MARTINEZ, in his official capacity as City Manager, WILFREDO GORT, in his official capacity as City Commissioner, MARC SARNOFF, in his official capacity as City Commissioner, FRANK CAROLLO, in his official capacity as City Commissioner, FRANCIS SUAREZ, in his official capacity as City Commissioner, ard KEON HARDEMON, in his official capacity as City Commissioner. Defendants. / PLAINTIFF CLASS’S UNOPPOSED MOTION FOR APPROVAL OF NOTICE OF CLASS CERTIFICATION Plaintiff and Class Representative, 346 NW 29" Street, LLC, d/b/a Museo Vault (the “Class”), by and through undersigned counsel, and without opposition from Defendant, the City of Miami (“City”), moves for Court approval of the class certification notice (“Notice”) provided to all known class members following this Court’s entry of its Order Granting Class Certification (“Order”). In support, the Parties state as follows: On April 28, 2015, the Court granted class certification to Plaintiff in this case. A copy of the Class Certification Order is attached hereto as Exhibit “A.” The last section of the Order instructs the Plaintiff, designated as the Class Representative pursuant to the Order, to providenotice to all known class members in accordance with Florida Rule of Civil Procedure 1.220(d)(2), which states: As soon as is practicable after the court determines that a claim or defense is maintainable on behalf of a class, notice of the pendency of the claim or defense shall be given by the party asserting the existence of the class to all the members of the class. The notice shall be given to each member of the class who can be identified and located through reasonable effort and shall be given to the other members of the class in the manner determined by the court to be most practicable under the circumstances. Unless otherwise ordered by the court, the party asserting the existence of the class shall initially pay for the cost of giving notice. The notice shall inform each member of the class that (A) any member of the class who files a statement with the court by the date specified in the notice asking to be excluded shall be excluded from the class, (B) the judgment, whether favorable or not, will include all members who do not request exclusion, and (C) any member whe does not request exclusion may make a separate appearance within the time specified in the notice. Rule 1.220(d}(2), Fla. R. Civ. P. The Order stated that notice via U.S. mail was the most practicable manner for communicating the notice. This Court further required that the Notice include the following language: 1. A class action has been filed in the Circuit Court of the Eleventh Judicial Court in and for Miami-Dade County, Florida, Case No. 13-037260 CA 01. The class is defined as all applicants, excluding DDR Miami Avenue, LLC, who filed applications before November 6, 2011 for ad valorem tax exemptions pursuant to Chapter 56, Article V of the Code of the City of Miami, entitled "Ad Valorem Tax Exemption for Enterprise Zone Businesses," originally enacted 12-12-02, and amended 6-22-06 (the “Ordinance”). The Defendants are the City of Miami, Mayor Tomas Regalado in his official capacity, and the City Commissioners in their official capacities (collectively, the “City”). The class, represented by Plaintiff 346 NW 29" Street, LLC, d/b/a Museo Vault, asserts two claims against the City. Count I is a declaratory action to find that the City of Miami violated the Ordinance by failing and/or refusing to review applications and by failing to recommend for approval or denial the applications to the City Commission. Count II is for a writ of mandamus to compel the City of Miami to pay tax exemptions to all applicants for each year the applicants qualified under the Ordinance. The City of Miami’s defenses generally include the discretionary language in the Ordinance, the expiration of the statute of limitations, the expiration of the City’s authority under the Ordinance to provide tax exemptions, and the non-qualifications of any applicants.3 If you wish to remain a member of the Class you do not have to do anything at this time. The lawsuit will be prosecuted on your behalf by the representative Plaintiff and Class Counsel 4 if you wish to be excluded from the Class, you must express your desire for exclusion in writing, signed by you and postmarked ne later » 2015 (66 days from the postmark date on the notice from Class Counsel). You must send your notification of exclusion to Class Counsel, Stevan J. Pardo, Esq., Pardo Gainsburg, PL, 200 Southeast First Street, Suite 700, Miami, Florida, 33131 Registered mail is advised. 5. The judgment(s) in this Cause shall be binding on all class members unless you advise Class Counsel in writing and signed by you that you wish to be excluded. If you exclude yourself from the class action by the postmarked deadline, you will not be bound by the class judgment(s), you will not share in any class recovery, and you may pursue any individual claim you have through private counsel at your own expense. If you choose to pursue an individual claim, you must file your complaint with the Court within 90 days from the postmark date on this Notice from Class Counsel. (Order, p. 19-20) (Emphasis original). Between May 14 and May 19, 2015, Plaintiff sent Notice by U.S. mail to the 67 known class members. These class members’ identities were known because during discovery, the City produced a chart listing the businesses that submitted applications to the City for tax exemptions under the Ordinance. Each Notice was identical. A copy of the Notice sent to each known class member is Exhibit “B.” Most significantly, none of the class members opted out of the class The Notice conforms with the class certification notice requirements under Florida law. First, the Notice contains the language, verbatim, required by the Court in its Order. Second, pursuant to Rule 1.220(d)(2), and overlapping with the Court’s required language in the Notice as per the Court’s Order, the Notice indicates that (A) any member of the class who files a statement with the court by the date specified in the notice asking to be excluded shall be excluded from the class, (B) the judgment, whether favorable or not, will include all members who do not request exclusion, and (C) any member who does not request exclusion may make a separate appearance within the time specified in the notice. Third, the Notice goes beyond these requirements andincludes a lengthy Q & A section that explains in greater detail the process of the class action, the claims and defenses, lawyer representation, the opt-out procedure and class member rights, the potential benefits that class members may receive if the lawsuit is successful, and the resolution procedure. The Notice also invited class members to contact Class Counsel with any further questions about the class action or to review pleadings to date, or to assist with the lawsuit if they chose. The City has reviewed the Notice and the two cover letters provided to the class and has no objections to their form or contents. The Parties are scheduling before this Court a hearing for preliminary approval of a case settlement. The City Commission must approve any proposed settlement. Knowing this, the Parties have agreed that the settlement agreement can be rescinded or canceled by either Party at any time before the Court’s final approval of the settlement and entry of final judgment. Upon approval by the City Commission, the Parties will submit the final draft of the settlement and will present any other required showings to the Court. The City has no opposition to the entry of an order approving the Class Certification Notice. WHEREFORE, the Plaintiff Class respectfully requests that this Court approve the Class Certification notice provided to all known Class Members. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing document was served by e-mail in compliance with 2.516, Fla.R.Jud.Admin., on October 3, 2017 to Kerri L. McNulty, Esquire Henry J. Hunnefeld, Esquire City of Miami, Office of the City Attorney 444 S.W. 2™ Avenue, Suite 945 Miami, Florida 33130-1910 E-Mail: kimenulty@miamigov.com hjhunnefeld@miamigov.comBy: PARDO JACKSON GAINSBURG, PL Counsel for Plaintiff 200 S.E. First Street, Suite 700 Miami, Florida 33131 Phone: (305) 358-1001 Facsimile: (305) 358-2001 Email: Spardo@pardojackson.com nrekant@pardojackson.com mfuentes@pardojackson.com /s/ Stevan J. Pardo Stevan J. Pardo Florida Bar No. 438626 Nicole Rekant Florida Bar No. 0422053Exhibit “A° IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA 346 NW 29" Street, LLC and others similarly situated, GENERAL JURISDICTION DIVISION Plaintiffs, CASE NO.: 13-037260 CA 01 vs. CITY OF MIAMI, a Florida municipal corporation, TOMAS REGALADO, in his official capacity as Mayor, JOHNNY MARTINEZ, in his official capacity as City Manager, WILFREDO GORT, in his official capacity as City Commissioner, MARC SARNOFF, in his official capacity as City Commissioner, FRANK CAROLLO, in his official capacity as City Commissioner, FRANCIS SUAREZ, in his official capacity as City Commissioner, and KEON HARDEMON, in his official capacity as City Commissioner. Defendants. / ORDER GRANTING CLASS CERTIFICATION THIS MATTER came to be heard on January 13, 2015 (the “Hearing”) on Plaintiff's Motion for Class Certification (the “Motion’”). The Court has reviewed the Motion, Defendant’s response to the Motion, conducted an evidentiary hearing,! heard argument of counsel, and otherwise been fully advised in the premises. Upon due consideration, it is ORDERED AND ADJUDGED that the Motion is GRANTED based on the following findings of fact and conclusions of law ' At the Hearing, the parties stipulated to enter into evidence the following: (1) all exhibits attached to the Motion, the City’s opposition to the Motion, and Museo’s reply; (2) the Todd Ruderman and Herb Friesner depositions: (3) the Todd Ruderman, Herb Friesner, and Stevan Pardo affidavits; (4) Todd Ruderman’s resume; (5) three letters from Economic Development Consultants, Inc. to the City; (6) Museo’s Answers to Interrogatories; and (7) Motion to Dismiss hearing transcript. (Hearing transcript p. 6-8, 11).346 NW 29" Street, LLC v. City of Miami, et al Case No. 13-037260 CA 01 Order Granting Class Certification page 2 L General Background This is an action by a business owner, on behalf of a putative class, whose properties lie within the City of Miami’s Enterprise Zone, for a declaration of their rights to tax exemption under a City Ordinance enacted for their benefit, and to compel the City, by mandamus, to provide the putative class members with the benefits of the tax exemption to which they claim entitlement. A. The Ordinance Plaintiff, 346 NW 29" Street, LLC, d/b/a Museo Vault (“Museo”), and other businesses similarly situated (the “Putative Class”) sued the City of Miami for the City’s alleged failure and refusal to review and approve qualified applications pursuant to Ordinance No. 12308, which ordinance was originally adopted December 12, 2002, and amended by Ordinance Nos. 12814 and 12913, adopted June 22, 2006 and May 10, 2009, (collectively, the “Ordinance”). The Ordinance sets forth the procedure by which new and expanding businesses located within the City of Miami Enterprise Zones may apply for, and obtain, ad-valorem tax exemptions (the “Ad- Valorem Tax Exemption Program”). The Ordinance was adopted after approval by referendum held on November 6, 2001, as required by Section 196.1995, Florida Statute. The Ordinance was codified under Chapter 56 of the City of Miami Code. (Doc 26-37) Section 56-112 of Ordinance provides that the exemption applies only to the City’s municipal millage; it does not apply to the full amount of taxes paid to Miami-Dade County. The purpose of the Ordinance is to revitalize and to rehabilitate distressed areas (“Enterprise Zones”), to encourage businesses to locate and expand in these areas, to stimulate employment among area residents, and to enhance the areas’ general social and economic well- being. The Ordinance incentivizes business owners in the Enterprise Zones to invest in their346 NW 29" Street, LLC v. City of Miami, et al Case No. 13-037260 CA 01 Order Granting Class Certification page 3 respective business by offering tax exemptions based on the municipality’s millage, and thereby offset some of the cost of their investment. The businesses’ investments are advantageous to the City because investments increase employment in the Enterprise Zones, and thereby ease financial burdens on the City to support the unemployed, and improve the City’s tax base through increased business activity in the Zone. (Doc 1226, 2344) Section 56-114 of the Ordinance requires applicants to provide certain information in their applications to demonstrate that they meet the requirements of the Ordinance. Those requirements include a description of the improvements both to real and tangible property for which the exemption was requested, proof that the businesses has employed at least five full- time employees,” and proof that yearly real estate taxes were paid. Section 56-119 of the Ordinance provides that the tax exemption, once granted, will be renewed each year for a maximum period of ten years upon the filing of annual renewal applications that demonstrate continued qualification under the Ordinance. The Ordinance further states in Section 56-122 that the authority of the city commission to grant tax exemptions pursuant to this article shall expire, pursuant to state law, ten years after the date of the referendum granting the authority to the city commission to grant the exemptions. The expiration of the City Commission’s authority to grant tax exemptions shall not affect the unexpired term of any exemption in effect as of the Expiration Date. The referendum which authorized the exemption occurred on November 6, 2001. (Doc 53) The parties agreed at the Hearing that the City could not grant new tax exemptions to applicants who initially filed applications after November 6, 2011. The parties disagreed, however, on the ability of the City to provide tax exemptions to the Putative Class, defined as ? Section 56-120, entitled “Waiver of job requirement eligibility criterion,” states that the city commission, upon the recommendation of the city manager, may upon approval by no less than a four-fifths majority vote, waive the job creation requirement described in subsection 56-113(a).346 NW 29" Street, LLC v. City of Miami, et al Case No. 13-037260 CA 01 Order Granting Class Certification page 4 applicants who applied before November 6, 2011, but whose applications the City never reviewed; thus, no exemptions were ever approved prior to the expiration date of the Ordinance. Section 56-116 of the Ordinance provides that All applications shall be reviewed by the Department [of Economic Development of the City] which sha// transmit its findings to the city manager, who shall either recommend approval to the city commission or decline to recommend approval.” (Emphasis supplied). Despite the Ordinance’s mandatory direction which appears thrice in the provision, Museo’s application was never reviewed or approved. (Aff. Ruderman §9) None of the Putative Class Members’ applications was ever recommended either for approval or denial to the City Commission nor was any granted tax exemption. (Aff. Friesner, 419) B. The City’s Actions Under the Ordinance After years of inaction, however, in 2009, the City did review and deem twelve (12) other applications qualified. (Doc 413) For each of those twelve (12) businesses, the City obtained revenue implication figures from the County, which calculated the amount of taxes that would be exempt under the Ordinance each year if those applications were approved. The County furnished to the City the precise dollar amounts of exempt taxes that the City would lose upon approving those applications. The revenue implication chart indicated the amount of taxes that would be exempt -- starting with the first year the applicant submitted its application, and extending for nine (9) additional years. The chart was not limited to providing revenue implications of tax exemptions to the year application was made. (Doc 309-310) Section 56-115 of the Ordinance sets forth this process of the County’s duty to calculate the applicants’ proposed tax exemptions After the City obtained from the County the precise tax implications of the exemptions for the twelve (12) qualified applicants, Marcus James, project manager for the Office of the City346 NW 29" Street, LLC v. City of Miami, et al Case No. 13-037260 CA 01 Order Granting Class Certification page 5 Manager and Economic Initiatives, emailed the City legal department on April 23, 2009, and requested that the City attorneys draft ordinances for the twelve (12) businesses for proposal to the City Commission. (Doc 412) Section 56-110 of the Ordinance provides that tax exemptions be granted by ordinance to each qualifying new or expanding business. Nearly a year and a half later, on September 16, 2010, the twelve (12) applicants were scheduled on the agenda before the City Commission; however, the Commission meeting minutes reflect that City Manager, Carlos Migoya, withdrew the applications before they and their respective ordinances could be presented to the City Commission for consideration. (Doc 274 -280) Mr. Migoya did not give any reason for the withdrawal. The applications were never again placed on an agenda for consideration by the City Commission. At the City Commission meeting, Mr. Migoya never indicated whether he approved or disapproved the applications. (Doc 274 -280) Neither Mr. Migoya nor the City Commission made any findings of fact or referred to any evidence to substantiate a conclusion that any applicant failed to meet the requirements for the tax exemption under the Ordinance, nor did he otherwise demonstrate a substantive basis for not granting tax exemptions to any of the twelve (12) applicants. (Doc 274 -280) The one exception was DDR Miami Avenue, LLC (“DDR”), with a tax exemption valued at a mere $109.00 per year. The City Commission granted DDR a tax exemption under the Ordinance on January 13, 2011, effective January 24, 2011. (Doc 1003-1009) Thereafter, DDR waived the exemption (Doc 1010). As a result of this waiver, no exemption was actually provided to DDR. Other than DDR, in the more than thirteen (13) years since the Ordinance became law, no other applicant has been granted a tax exemption, including Plaintiff Museo (Doc 1081; Friesner Aff. 19) The evidence reflects that the Putative Class Members and Economic Development346 NW 29" Street, LLC v. City of Miami, et al Case No. 13-037260 CA 01 Order Granting Class Certification page 6 Consultants, Inc. (“EDC”), which assisted some applicants, including Museo, with their applications, repeatedly requested the City for action on their applications, however, while the City promised action, it failed to review any of the applications. (Doc PL 1-8, 12-15, 18-20, 25- 26, 33-36, 40, 50, 52, 58, 60, 64, 66-73, 75-76, 92) The evidence also reflects that, while the City accepted applications from Putative Class Members since 2003 (Doc 1155), and cashed each of their non-refundable $100.00 checks for the application fee (Friesner Aff. 10), no applications were reviewed or scheduled for consideration by the City Commission until 2010 (Doc 833-835). The September 2, 2010 draft ordinance, which granted DDR a tax exemption, specifically explained the nearly nine (9) year delay in implementing the tax exemption Program under the Ordinance Due to procedural errors with the original ordinance 12308, the City has been unable to approve any ad valorem tax exemptions to date. However, ordinance 12308 has been amended to correct the procedural errors. (Doc 835) The amendment did not alter either the purpose of the Ordinance or the basic requirements for qualification, namely: a description of the improvements to real property and tangible property, proof of job creation, and payment of past taxes. Sections 56-113 and 56-114. C. The Putative Class The Putative Class is comprised of Museo and all other applicants, excluding DDR, whose applications were filed before November 6, 2011, and which were never reviewed or presented to the City Commission for approval. The Putative Class seeks a declaration that the City violated the following duties under the Ordinance: (Count I) (a) the City failed to review and recommend applications for approval or denial to the City Commission and (b) the City 3 As stated above, the twelve (12) applications that were reviewed and put on the City Commission agenda in September 2010 were withdrawn without explanation.346 NW 29" Street, LLC v. City of Miami, et al Case No. 13-037260 CA 01 Order Granting Class Certification page 7 Commission failed to grant or reject the applications. (Count 2) The putative class also seeks a writ of mandamus to compel the City to provide the Putative Class the tax exemptions for which they applied because the City (a) abused its discretion by capriciously and arbitrarily refusing to perform its duties under the Ordinance, and (b) disregarded the tax incentives it was legally required to provide to qualified candidates without providing any basis for denying their applications. The Putative Class argues further that, by its conduct, the City has lost its right of discretion and that the writ of mandamus should include an award to the Putative Class Members in an amount equal to the total tax exemptions for which they qualified over the life of the Ordinance. D. Putative Class Representative, Museo Vault In 2005, Museo’s principals purchased property and began paying real estate taxes on it. (Aff. Ruderman, 94) (Aff. Ruderman, 93-4; Ruderman depo p. 8-9) In 2007 and 2008, 346 NW 29h Street, LLC, d/b/a Museo Vault invested millions of dollars to build a high-end art storage facility on the property. (Aff. Ruderman, 4; Ruderman depo p. 8-9, 28) In October 2008, Museo completed construction and opened for business. Its first customers arrived in November, 2008. (Ruderman depo p. 28) In 2009, EDC’s Herb Friesner filed an application under the Ordinance on behalf of Museo. (Doc PL 634, PL 113-122) The City neither reviewed Museo’s application nor informed Museo whether its application was granted or denied. (Ruderman Aff. ”) I. Requirements for Class Certification To obtain class certification, the proponent of class certification must plead and prove the elements required under Florida Rule of Procedure 1.220(a). JnPhyNet Contr. Servs. v. Soria, 33346 NW 29" Street, LLC v. City of Miami, et al Case No. 13-037260 CA 01 Order Granting Class Certification page 8 So.3d 766, 771 (Fla. 4th DCA 2010); Canal Ins. Co. v. Gibraltar Budget Plan, Inc., 41 So0.3d 375, 377 (Fla. 4th DCA 2010). These four (4) elements are: (1) the members of the class are so numerous that separate joinder of each member is impracticable [numerosity], (2) the claim or defense of the representative party raises questions of law or fact common to the questions of law or fact raised by the claim or defense of each member of the class [commonality], (3) the claim or defense of the representative party is typical of the claim or defense of each member of the class [typicality], and (4) the representative party can fairly and adequately protect and represent the interests of each member of the class [adequacy] Fla. R. Civ. P. 1.220(a); Sosa v. Safeway Premium Finance, Co. 73 So. 3d 91 (Fla. 2011). In addition, the proponent of class certification must satisfy one of the three (3) subdivisions of Fla. R. Civ. P. 1.220(b).4 A. Numerosity Herb Friesner submitted twenty-six (26) applications. (Friesner Aff. §20) There were also non- EDC related Putative Class Members. (Hearing Transcript p.45) (Doc 1155) And, the City produced a list of sixty-seven (67) applicants in discovery. (Ex. G to Plaintiff's Motion). To 4 Florida Rule of Civil Procedure 1.220(b)(3) provides: (3) the claim or defense is not maintainable under either subdivision (b)(1) or (b)(2), but the questions of law or fact common to the claim or defense of the representative party and the claim or defense of each member of the class predominate over any question of law or fact affecting only individual members of the class, and class representation is superior to other available methods for the fair and efficient adjudication of the controversy. The conclusions shall be derived from consideration of all relevant facts and circumstances, including (A) the respective interests of each member of the class in individually controlling the prosecution of separate claims or defenses, (B) the nature and extent of any pending litigation to which any member of the class is a party and in which any question of law or fact controverted in the subject action is to be adjudicated, (C) the desirability or undesirability of concentrating the litigation in the forum where the subject action is instituted, and (D) the difficulties likely to be encountered in the management of the claim or defense on behalf of a class.346 NW 29" Street, LLC v. City of Miami, et al Case No. 13-037260 CA 01 Order Granting Class Certification page 9 require each class member to file a separate lawsuit would be impractical because of the risk of conflicting rulings.” Therefore, the Court finds that there are sufficient members to qualify as a class, and Plaintiff satisfies the numerosity element of class certification. B. Commonality The City did not contest a finding of commonality in its opposition papers or at the Hearing, and the Court finds that this factor is sufficiently shown. Museo and the Putative Class members satisfy the commonality requirement because their claims arise from the same course of conduct by the City. The following facts are common to each class member: each (a) submitted applications before November 6, 2011; (b) paid the $100.00 application fee; (c) provided all materials and documents necessary to demonstrate their qualifications; (d) did not receive any review or recommendation by the City Manager as to their respective application(s); and (e) received no tax exemption for qualified applications. In short, all of the putative class members’ claims arise from the City’s failure to review and recommend applications. All class members also raise the same list of legal questions: a. Did the City comply with its obligation under Section 56-116 of the Ordinance to review each application, to transmit findings to the City Manager, and recommend or decline to recommend approval to the City Commission for each applicant who submitted an application before November 6, 2011, and paid the application fee? 5 This analysis is similar to Rule 1.220(b)(1) below. © The twelve (12) applications that the City reviewed but withdrew from City Commission consideration are included since they allegedly suffered the same outcome of never having been considered.346 NW 29" Street, LLC v. City of Miami, et al Case No. 13-037260 CA 01 Order Granting Class Certification page 10 b Did the City abuse its discretion to grant tax exemptions (1) by failing to implement the tax exemption program for nearly nine (9) years, (2) by failing tp recommend approval or denial of the applications; and (3) by failing to provide a reasonable basis for the City’s failure to grant any tax exemptions c. Should qualified class members, be entitled to additional tax exemptions for each successive year after they filed their applications, if they can demonstrate their continued qualification under the Ordinance? Should their failure to file renewal applications be excused on the grounds that it would have been futile for them to file renewal applications when the City never reviewed their initial applications? d. If the City is found to have breached its duty to review and approve applications, should its restitution to the class members consist of paying: (1) the amount of the tax exemption each qualified class member would have received in the year it filed its application;” (2) the amount of tax exemption each class member would have received for each subsequent year it qualified, for a total of ten (10) years; and (3) the accrued interest on the foregoing amounts? Because these facts and legal questions apply equally to all class members, the Plaintiff has satisfied the commonality requirement for class certification C. Typicality The key inquiry for a trial court when it determines whether a proposed class satisfies the typicality requirement is whether the class representative possesses the same legal interest and has endured the same legal injury as the class members. See Morgan, 33 So.3d at 65 (citing ” Acknowledging that the Ordinance was not implemented and abatements approximating $2.5 million were owed to qualified applicants as of November, 2009, the City considered and approved the provision of “back taxes” in the form of phase-out tax credits. The City even created a plan for repaying overdue abatements to qualified applicants, and calculated those amounts. However, no tax credits or abatements of any kind were ever granted to any Putative Class members, including Museo. (Doc 1081-1083)346 NW 29" Street, LLC v. City of Miami, et al Case No. 13-037260 CA 01 Order Granting Class Certification page 11 Clausnitzer v. Fed. Express Corp., 248 F.R.D. 647, 656 (S.D.Fla.2008)). The test for typicality focuses generally on the similarities between the class representative and the putative class members. /d. The typicality requirement is satisfied when there is a strong similarity in the legal theories upon which those claims are based and when the claims of the class representative and class members are not antagonistic to one another. See Morgan, 33 So.3d at 65 1. City’s Statute of Limitations Defense Would Create An Unjust Result The City argued that the four-year statute of limitations varies among the Putative Class members. Specifically, the City contends that, in any given year, as to an application filed by March 1, the due date for applications under the Ordinance, the statute of limitations began to run as to that applicant on October 1 because the City asserts “Florida law requires that all taxes be certified by individual municipalities by or before October 1 of any given year.” (Hearing transcript, p.51-52) Therefore, the City argues, if an applicant did not receive an exemption on its October 1 tax bill, the applicant should have known at that time that it had been denied an exemption, and the four-year statute of limitations had begun to run The Court does not agree that an applicant should have known by October 1 that its application was officially denied by the City merely because its tax bill did not reflect the exemption sought seven (7) months earlier, and no evidence was presented to support the argument. Furthermore, the City never actually denied any of the applications. (Hearing transcript, p. 57-64) So, the City could not have notified any of the applicants of a denial because there were no denials. Fundamental to the fairness of a statute of limitations in any context is notice that one’s rights have been violated. The City also argues that Section 194.171, Florida Statutes time-bars all applicants’346 NW 29" Street, LLC v. City of Miami, et al Case No. 13-037260 CA 01 Order Granting Class Certification page 12 claims. According to Section 194.171, the statute of limitations begins to run from the date the assessment being contested is certified for collection under s, 193.122(2) or after 60 days from the date a decision is rendered concerning such assessment by the value adjustment board if a petition contesting the assessment had not received final action by the value adjustment board prior to extension of the roll under §197.323 But, Section 194.171 is not applicable to the City’s tax exemption under the Ordinance Plaintiffs are not challenging the payment of any tax assessment to the City or the County (Hearing transcript, p. 39) The City also argues that a subset of the Putative Class Members -- those for whom EDC’s principal, Herb Friesner, filed applications -- are not typical of the class, and therefore the class should be denied certification. The City argues that Mr. Friesner followed up with the City as to the status of the applications, and learned that his clients’ applications would not be reviewed. The City argues that the statute of limitations should be calculated from the date Mr. Friesner learned of the City’s position, and therefore such Putative Class Members are not typical of the rest of the class. (Hearing transcript, p. 58-62, 66-67) However, the evidence did not demonstrate that Mr. Friesner received notice from the City that his clients’ applications had been denied. (Hearing transcript, p. 60-61) To the contrary, the evidence presented demonstrates that the City never told Mr. Friesner that his clients’ applications were recommended to be denied. (Friesner depo, p. 34, 36, 39-41) Mr. Friesner testified, and his hand-written list of meetings and communications with City officials indicates, that until April 2012, he was still urging the City to review his clients’ applications. (Friesner depo, p. 66, Ex. 10) In addition, as stated in Beyer v. City of Marathon, 37 So. 34 932 (Fla. 3" DCA 2010), “Tt would be patently unfair, if not absurd, to allow the county, and later the City, to delay the346 NW 29" Street, LLC v. City of Miami, et al Case No. 13-037260 CA 01 Order Granting Class Certification page 13 timely processing of the BUD application, provide a determination after the expiration of the purported limitations period, and then claim the expiration of the limitations period as a defense” 1. The Ordinance Has Not Expired as to the Class because its Members Filed Applications Before November 6, 2011 Similar to the City’s statute of limitations defense is its contention that the Ordinance has expired under its own terms, and consequently, the City now does not have authority to grant tax exemptions. Section 56-122 of the Ordinance states that it expires ten (10) years after the date of the approval of the referendum by the voters. Since the voters approved the referendum on November 6, 2001, the City argues its authority expired on November 6, 2011. However, the Ordinance, it also provides that the expiration of the city commission’s authority to grant tax exemptions shall not affect the unexpired term of any exemption in effect as of the expiration date. A party cannot circumvent its obligations through its own inaction or neglect, and then use its own inaction or neglect as a defense the claim against it. Florida law supports this conclusion. 2. Factual Differences that May Render Some Class Members Unqualified for a Tax Exemption or which Vary Damages Do Not Destroy Typicality The claims and remedies sought by Museo are identical to those of the other class members. That Museo may not ultimately qualify for a Tax Exemption does not change that each class member bases its action on the City’s alleged failure to comply with the directives of the Ordinance and arbitrary refusal to grant tax exemptions to qualified applicants. Moreover, it is a ministerial act to demonstrate a class member’s qualification for the Tax Exemption. The requirements are clearly set forth in the short checklist in Sections 56-113 and 56-114 of the Ordinance. Those requirements can be reduced to the two (2) essential elements:346 NW 29" Street, LLC v. City of Miami, et al Case No. 13-037260 CA 01 Order Granting Class Certification page 14 (1) whether the applicant increased its employment roll by five full-time jobs, and (2) whether the applicant is current on its property taxes. With their initial applications, the class member furnished employee rolls which evidence their hiring of employees. Subsequent years easily can be proven through payroll documents The City’s public records will evidence whether a class member paid its taxes. Thus, the ministerial task of determining each class member’s qualifications is not a bar to typicality. See Collins y. Erin Capital Management, LLC, 290 F.R.D. 689, 700 (S.D. Fla. 2013) (citations omitted) (finding typicality despite the need for each plaintiff to make a threshold showing that money collected qualified as “consumer debt” as opposed to another type of debt not covered by Florida Debt Collection Practices Act's requirement. D. Adequacy Adequacy requires that “the representative party can fairly and adequately protect and represent the interests of each member of the class.” Sosa at 115. That inquiry has two prongs First, the qualifications, experience, and ability of class counsel to conduct the litigation must be considered. /d. Second, the court must determine whether the class representative's interests are antagonistic to the interests of the class members. /d. The City has not objected to the adequacy of Museo’s counsel. Thus, the Court finds that Plaintiff counsel’s 30-plus years of legal experience in complex business litigation, at both the trial and appellate levels, the first prong of the adequacy requirement has been met. City of Pompano Beach vy. Fla. Dep't of Agric., 2002 WL 1558217 *4 (Fla. 17th Cir.Ct. Jan. 24, 2002) (recognizing class counsel's qualifications based on law firm biographies). Similarly, the City has not asserted that Museo’s interests are antagonistic to those of the rest of the class. Based on the evidence introduced at the Hearing, including Mr. Ruderman’s346 NW 29" Street, LLC v. City of Miami, et al Case No. 13-037260 CA 01 Order Granting Class Certification page 15 deposition testimony, the Court finds that Mr. Ruderman can adequately represent the class. The Court does not find any conflict between the interests of Museo or Mr. Ruderman and any other class member. Museo’s interests are fully aligned with those of the other class members. The adequacy requirement is therefore met. See City of Tampa vy. Addison, 979 So. 2d 246 (Fla. 2d DCA 2007) (“It did not appear at the hearing-and the City did not contend-that the City had any interests that were antagonistic to the interests of the other members of the proposed defendant class. Thus the second prong of the adequacy requirement was satisfied.”) E. The Class Meets the Requirements of 1.220(b)(1), (b)(2), and (b)(3) 1. 1.220(b)(1) is Satisfied Due to the Risk of Incompatible Verdicts in Individual Suits Rule 1.220(b)(1) permits class treatment if the prosecution of separate claims or defenses would create a risk of inconsistent or varying adjudications concerning class members which, as a practical matter, would be dispositive of the interests of absent members of the class or substantially impair or impede their ability to protect their interests.* That risk is present here. The potential for inconsistent or varying adjudications is precisely what Rule 1.220(b)(1) was designed to prevent. The Court finds that this element is satisfied 2. 1.220(b)(2) is Met Because the City Treated All Class Members the Same The class satisfies Rule 1.220(b)(2) because “the party opposing the class has acted or refused to act on grounds generally applicable to all the members of the class, thereby making 5 More specifically, Rule 1.220(6)(1) provides for the certification of a class where: (1) the prosecution of separate claims or defenses by or against individual members of the class would create a risk of: (a) inconsistent or varying adjudications concerning individual members of the class which would establish incompatible standards of conduct for the party opposing the class. or (b) adjudications concerning individual members of the class which would, as a practical matter, be dispositive of the interest of other members of the class who are not parties to the adjudications, or substantially impair or impede the ability of other members of the class who are not parties to protect their interests.346 NW 29" Street, LLC v. City of Miami, et al Case No. 13-037260 CA 01 Order Granting Class Certification page 16 final injunctive relief or declaratory relief concerning the class as a whole appropriate.” As indicated above, this element has been met. 3 Rule 1.220(b)(3) is Met Because Common Issues Predominate To meet the requirements of Rule 1.220(b)(3), the party moving for class certification must establish that the class members' common questions of law and fact predominate over individual class member claims. See Fla. R. Civ. P. 1.220(b)(3). Florida courts have held that common questions of fact predominate when the defendant acts toward the class members in a similar or common way. See Stone v. CompuServe Interactive Servs., Inc., 804 So.2d 383, 388 (Fla. 4th DCA 2001). In this case, the Putative Class members satisfy the predominance element because the common class questions require generalized proof, and the City’s defense -- that it had inherent discretion to even review or consider the applications, also pertains to all class members. If the Court should find that the City was obligated to review and consider the applications, then the Court would grant the same relief to all of the class. In this circumstance, the monetary prong of the class’s remedy does not predominate because it would be supplemental and incidental to the requested declaratory judgment. Should the Court’s declaratory judgment determine that the City violated the Ordinance, and, that supplemental relief is warranted, then the City would be deemed liable and damages would flow directly from that liability to the class as a whole on the claim forming the basis of the declaratory judgment. Any variances in the individual recoveries between the class members would be calculable by referring to the portion of taxes pertaining to the City millage that the class members paid in the past. These amounts are available from the public records, which actually strengthens the predominance of the class claims.346 NW 29" Street, LLC v. City of Miami, et al Case No. 13-037260 CA 01 Order Granting Class Certification page 17 Rule 1.220(b)(3) also requires consideration of all relevant facts and circumstances, including (A) the respective interests of each member of the class in individually controlling the prosecution of separate claims or defenses, (B) the nature and extent of any pending litigation to which any member of the class is a party and in which any question of law or fact controverted in the subject action is to be adjudicated, (C) the desirability or undesirability of concentrating the litigation in the forum where the subject action is instituted, and (D) the difficulties likely to be encountered in the management of the claim or defense on behalf of a class. The Court finds that class representation is superior to other available methods for the fair and efficient adjudication of this case. Individual suits would require a repetition of the same evidence for each class member. And, there is no evidence that the case would be unmanageable. Museo has Legal Standing to Serve as Class Representative A threshold inquiry in a motion for class certification is whether the class representative has standing to represent the putative class members. See Stone v. CompuServe Interactive Servs., 804 So.2d 383, 388 (Fla. 4th DCA 2001). To satisfy the standing requirement for a class action claim, the class representative must show that a case or controversy exists between him or her and the defendant, and that this case or controversy will continue throughout the litigation See Olen Props.Corp. v. Moss, 981 S0.2d 515, 517 (Fla. 4" DCA 2008) Here, Museo claims an economic injury, the loss of the Tax Exemption to which it claims entitlement. This satisfies the actual injury requirement of standing. Museo may pursue redress in the form of a declaration that the City breached its obligations under the Ordinance. Museo may also seek mandamus to compel payment of the Tax Exemptions to which it was entitled for each year Museo qualified under the Ordinance. F. Conclusion346 NW 29" Street, LLC v. City of Miami, et al Case No. 13-037260 CA 01 Order Granting Class Certification page 18 Based on the above findings of fact and conclusions of law, the Court finds that Museo and the Putative Class members meet the requirements under 1 Rule 1.220(b)(1) because individual suits would create a risk of inconsistent verdicts as to whether the City had a duty to comply with the directives of the Ordinance; Subsection (b)(2) of the Rule because the City has acted or refused to act in a manner applicable to the entire Putative Class; proving monetary damages would be a ministerial act, and would not play a predominant role in the litigation so as to significantly outweigh the benefits of a class action lawsuit; Subsection (b)(3) of the Rule because common issues predominate over individual ones. Qualification under the Ordinance is a ministerial task which is evidenced by payroll records and the County tax collector’s public records. If the declaratory judgment should find the City’s liable to the class, then the Court may proceed to calculate the amount of individual class member Tax Exemptions due from such records. In sum, Plaintiff Museo has satisfied the requirements for class certification and for class representative. The class is defined as all applicants, excluding DDR Miami Avenue, LLC, who filed applications pursuant to the Ordinance prior to November 6, 2011 (the “Class Members”). G. Notice Requirements Under Rule 1.220(d), Fla. R. C . Pursuant to Rule 1.220(d)(1) and (2), Fla. R. Civ. P., notice of the pendency of the claims shall be given by Plaintiff Museo to all the Class Members. Due process in class actions requires notice to all Class Members who are identifiable through reasonable efforts. Written notice by mail to the Class Members is the most practicable manner in this case. Because the City has superior means to review its records and assemble the information, the City shall furnish to346 NW 29" Street, LLC v. City of Miami, et al Case No. 13-037260 CA 01 Order Granting Class Certification page 19 Plaintiff Museo’s counsel a complete list of the Class Members within 60 days of the date of this Order. Such list shall contain the name, last known address, and application date of each Class Member.” Upon receipt of the list of from the City, Plaintiff Museo shall provide the following notice to each Class Member” 1. i) w A class action has been filed in the Circuit Court of the Eleventh Judicial Court in and for Miami-Dade County, Florida, Case No. 13-037260 CA 01. The class is defined as all applicants, excluding DDR Miami Avenue, LLC, who filed applications before November 6, 2011 for ad valorem tax exemptions pursuant to Chapter 56, Article V of the Code of the City of Miami, entitled "Ad Valorem Tax Exemption for Enterprise Zone Businesses," originally enacted 12-12-02, and amended 6-22-06 (the “Ordinance”). The Defendants are the City of Miami, City of Miami Mayor Tomas Regalado in his official capacity, and the City Commissioners in their official capacities (collectively, the “City”). The class, represented by Plaintiff 346 NW 29h Street, LLC, d/b/a Museo Vault, asserts two claims against the City. Count Lis a declaratory action to find that the City violated the Ordinance by failing and/or refusing to review applications and by failing to recommend for approval or denial the applications to the City Commission. Count II is for a writ of mandamus to compel the City to pay tax exemptions to all applicants for each year the applicants qualified under the Ordinance. The City’s defenses generally include the discretionary language in the Ordinance, the expiration of the statute of limitations, the expiration of the City’s authority under the Ordinance to provide tax exemptions, and the non- qualifications of any applicants. If you wish to remain a member of the Class you do not have to do anything at this time. The lawsuit will be prosecuted on your behalf by the representative Plaintiff and Class Counsel If you wish to be excluded from the Class, you must express your desire for exclusion in writing, signed by you and postmarked no later than 60 days from the postmark date on the notice from Class Counsel You must send your notification of exclusion to Class Counsel, Stevan J. Pardo, Esq., Pardo Gainsburg, PL, 200 Southeast First Street, Suite 700, Miami, Florida, 33131 Registered mail is advised. The judgment(s) in this Cause shall be binding on all class members unless you advise Class Counsel in writing and signed by you that you wish to be excluded. ° Museo may need to conduct research if any addresses provided by the City should no longer be current. 1 See, e.g. Holman v. Student Loan Xpress, Inc., WL WE *6 (M.D. Fla., Nov. 19, 2009); Roughton v. R.J. Reynolds Tobacco Co., 129 So. 3d 145 (Fla. 1 DCA 2013).346 NW 29" Street, LLC v. City of Miami, et al Case No. 13-037260 CA 01 Order Granting Class Certification page 20 If you exclude yourself from the class action by the postmarked deadline, you will not be bound by the class judgment(s), you will not share in any class recovery, and you