Third District Court of Appeal
State of Florida
Opinion filed March 24, 2021.
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No. 3D20-576
Lower Tribunal No. 19-29594
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Commissioner Joe Carollo, et al.,
Appellants,
vs.
Platinum Advisors, LLC, et al.,
Appellees.
An Appeal from a non-final order from the Circuit Court for Miami-Dade
County, Spencer Eig and Veronica Diaz, Judges.
Kuehne Davis Law, P.A., and Benedict P. Kuehne and Michael T.
Davis, for appellants.
Brodsky Fotiu-Wojtowicz, PLLC, and Benjamin H. Brodsky, for
appellees.
Before FERNANDEZ, SCALES and HENDON, JJ.
On Motion for Clarification
SCALES, J.
We grant Appellant Joe Carollo’s motion for clarification, withdraw our
opinion of February 10, 2021, and replace it with the following opinion.
Appellants Miami City Commissioner Joe Carollo and Consulting
Associates Group, Inc. (together, “Carollo”) appeal from a non-final order
denying their motion to dismiss, on immunity grounds, the complaint of
appellees Platinum Advisors, LLC and SkyViews of America, LLC. Although
the appellees characterized their suit as directed toward Commissioner
Carollo in his individual capacity, the conduct that the appellees alleged is
actionable occurred only in Carollo’s capacity as an elected official engaged
in the legislative process. Therefore, such alleged conduct is shielded from
liability by absolute legislative immunity. Accordingly, we reverse the trial
court’s non-final order denying Carollo’s motion to dismiss the appellees’
complaint.
I. Facts
In 2016, during an interim when Carollo was not an elected official, he
executed a one-year services agreement (the “Agreement”) on behalf of his
private consulting firm (Consulting Associates Group, Inc.) with Platinum
Advisors. The Agreement provided that Carollo would advise Platinum
Advisors in its effort to locate a site and secure required governmental
approval to erect a Ferris wheel, also called an observation wheel. The
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Agreement imposed a duty on Carollo not to disclose Platinum Advisors’
confidential and proprietary information.
Eventually, Platinum Advisors and its affiliate SkyViews applied to the
City of Miami for development approval of the observation wheel to be
located at Bayside Marketplace on City of Miami property.
During the term of the Agreement, Carollo announced his candidacy
for Miami City Commissioner. Platinum Advisors terminated Carollo’s
consulting contract in September 2017, and Carollo was elected in
November 2017. Platinum Advisors proceeded with its observation wheel
application over the next two years. It received preliminary staff approvals,
entered a pre-construction phase and, after obtaining several permits, began
working at the site in August 2018. During this period before final
development approval, Carollo refrained from any involvement, both at
public meetings and behind the scenes, with Platinum Advisors’ application.
A hearing for final planning and zoning approval of the application was
scheduled before the Miami City Commission on September 26, 2019. At
that hearing, after Platinum Advisors’ agenda item was removed from the
consent agenda by the City Attorney, the City Commission took up a
discussion of the project’s economic benefits. Carollo participated in this
public discussion. He urged his fellow Commissioners either to reject the
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application or to renegotiate its terms in order to increase revenues to the
City. As a result of this discussion, the City Commission deferred approval
of the application to a subsequent City Commission meeting. Our limited
record indicates that, at a subsequent public meeting, the City Commission
approved the project, but apparently at a greater cost to the appellees.
On October 17, 2019, Platinum Advisors and SkyViews sued Carollo
for damages and injunctive relief relating to Carollo’s alleged (i) breach of
fiduciary duty, (ii) breach of the Agreement, and (iii) misappropriation of trade
secrets in violation of Florida’s Uniform Trade Secrets Act. 1 The complaint
alleges that by participating in the discussion on the agenda item at the
September 26, 2019 City Commission meeting, and arguing at the meeting
that the City should negotiate a more favorable deal, Carollo (i) both
disclosed and used trade secrets and confidential and proprietary
information to instigate City Commission dissent and derail the appellees’
application, (ii) committed a malicious and bad faith violation of his fiduciary
and contractual duties, and (iii) sought a political benefit to himself by
1
The appellees’ complaint also sought to enjoin Carollo from what it alleged
were Carollo’s violations of section 112.3143(4) of the Florida Statutes. This
provision prohibits an “appointed public officer” from participating in matters
that constitute a conflict of interest.
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causing a renegotiation of the arrangement between the City and the
appellees.
Carollo sought to dismiss the complaint, arguing that, because all of
the alleged actions giving rise to the appellees’ several counts occurred in
Carollo’s capacity as a city commissioner, he was entitled to both absolute
legislative immunity and qualified immunity. On February 20, 2020, the trial
court entered a non-final order denying Carollo’s motion to dismiss. Carollo
timely appeals this order. We have jurisdiction pursuant to Florida Rule of
Appellate Procedure 9.130(a)(3)(F)(iii). 2
II. Analysis 3
The appellees concede that the only conduct undertaken by Carollo
that the appellees allege is actionable occurred exclusively while Carollo was
speaking from the dais at the September 26, 2019 City Commission meeting
on an agenda item properly before the City Commission. Because Carollo’s
alleged actionable conduct occurred during the legislative process of a duly
2
This rule reads, in relevant part, as follows: “Appeals to the district courts
of appeal of nonfinal orders are limited to those that . . . deny a motion that .
. . asserts entitlement to sovereign immunity.” Fla. R. App. P.
9.130(a)(3)(F)(iii).
3
We review de novo a trial court’s sovereign immunity determination. City of
Miami Firefighters’ & Police Officers’ Ret. Tr. & Plan v. Castro,
279 So. 3d
803, 806 n.11 (Fla. 3d DCA 2019).
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noticed agenda item, Carollo maintains that he is entitled to both absolute
legislative immunity and qualified immunity. We agree with Carollo, that,
based on allegations of the appellees’ complaint, Carollo is entitled to
absolute immunity. Therefore, we do not reach the issue of whether Carollo
also enjoys qualified immunity.
A city commissioner enjoys absolute legislative immunity when acting
in a legislative capacity. P.C.B. P’ship v. City of Largo,
549 So. 2d 738, 740
(Fla. 2d DCA 1989); Penthouse, Inc. v. Saba,
399 So. 2d 456, 458 (Fla. 2d
DCA 1981) (“If an exercise of legislative . . . power is involved, the immunity
is absolute.”); see also City of Pompano Beach v. Swerdlow Lightspeed
Mgmt. Co.,
942 So. 2d 455, 456 (Fla. 4th DCA 2006) (“State and local
officials are immune from civil suits for their acts done within the sphere of
legislative activity.”).
We have little difficulty concluding that, when he participated in the
discussion regarding his former client’s application – a duly noticed item on
the City Commission’s agenda – Carollo was engaged in the type of
legislative conduct normally undertaken by elected city commissioners. His
former client’s project was on the agenda for the City Commission meeting,
and Carollo participated in the discussion of the agenda item in his role as a
City Commissioner. Hence, irrespective of whether Carollo’s participation in
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the City Commission discussion was unethical or motivated by bad faith,
Carollo enjoyed absolute legislative immunity from civil suit for the comments
he made at that meeting.
III. Conclusion
At the motion to dismiss stage, we assume Carollo owed Platinum
Advisors the fiduciary and contractual duties alleged in the appellees’
complaint. The issue is whether Carollo enjoys immunity for his conduct that
allegedly breached those duties. Because the appellees’ complaint identifies
only conduct undertaken by Carollo during a City Commission meeting in
Carollo’s capacity as a City Commissioner, Carollo is entitled to absolute
legislative immunity for the actions identified in the appellees’ complaint. We
reverse the trial court’s denial of Carollo’s motion to dismiss and remand with
instructions for the trial court to enter an order dismissing the appellees’
complaint. 4
Reversed and remanded with instructions.
4
Carollo concedes that, because the appellees have not yet been given the
opportunity to amend their complaint, the dismissal should be without
prejudice. Obviously, we express no opinion on whether Carollo would be
entitled to immunity based on different conduct alleged in any amended
complaint.
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