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Handouts- Mayor GlasserM14M1 BEACH City of Miami Beach, 1 700 Convention Center Drive, Miami Beach, Florida 33139, www.miamibeachfl.gov RAUL J. AGUILA, CITY ATTORNEY Office of the City Attorney Tel: 305-673-7470, Fax: 305-673-7002 October 24, 2019 Via U.S. Mail and e -Mail: eglasser@coab.us Mayor Ellen Glasser City of Atlantic Beach 800 Seminole Road Atlantic Beach, FL 32233 Dear Mayor Glasser: As you know, City of Atlantic Beach is one of forty-four Florida local governments that has enacted a local Human Rights Ordinance ("HRO"), prohibiting discrimination, that is both more protective and more inclusive than Florida state law as set forth in the Florida Civil Rights Act ("FCRA"). The Florida Supreme Court has long held and established that local governments have the constitutional power to enact these anti- discrimination ordinances, and that local HROs such as yours are not preempted by the FCRA. Despite this long-established rule, a Circuit Court judge in Orange County, Florida has found that the Orange County HRO, which is substantially similar to yours, is preempted by the FCRA. The case is Yanes v. 0 C Food & Beverage, LLC, Case No. 18 -CA -003554-O. In that case, the female plaintiffs alleged that an entertainment venue's policy of refusing to admit females unaccompanied by males violated the Orange County HRO's prohibition against gender discrimination. Refusing to take up the merits of the case, the Circuit Court judge found that the Orange County HRO was impliedly preempted by the FCRA because the HRO did not require Plaintiffs to exhaust the administrative prerequisites enumerated in the FCRA. The Circuit Court order is attached here. The Circuit Court order is currently the subject of an appeal in Florida's Fifth District Court of Appeals. If the Circuit Court order were to be affirmed, all forty-four local HROs in Florida would be in peril of being invalidated. This is because an appellate ruling that the FCRA impliedly preempts local HROs would arguably apply to all forty- four HROs statewide. The City of Miami Beach is working in close strategic partnership with Orange County to craft an amicus curiae brief that represents the clear and unified voice of Florida local governments in support of the local authority to enact HROs to prohibit invidious discrimination. We now invite other Florida cities and counties that have enacted HROs to sign on to this amicus brief in order to clearly set forth that we have a strong governmental interest in fighting discrimination and that we have the authority to do so. We are asking that each municipal government that has enacted an HRO join us in this single unified local government amicus brief. The amicus brief, which is currently being drafted, explains how local governments have a strong interest in fighting discrimination, that we have always had the local home rule authority to do so, and that this authority is not preempted by the FCRA. In order to sign on to the brief, simply follow whatever procedure is appropriate for your jurisdiction in order to authorize signing on to the amicus brief. Typically, a city or county council or commission will simply pass a motion or resolution authorizing the City of Miami Beach to add your name to the list of parties filing the brief. There is no financial impact or staff commitment associated with signing on. There is no need to independently draft or file any brief or document in the case. I also attach our commission memorandum, as a suggested template. Please do not hesitate to contact me at (305) 673-7470 ext. 6521 or by e-mail at robertrosenwaldAmiamibeachfl.gov, or Farosha Andasheva at (305) 673-7470 ext. 6459 or by e-mail at faroatandasheva(c miamibeachfl.gov, for additional information. Sincerely, Robert F. Rosenwald, Jr. Robert F. Rosenwald, Jr. First Assistant City Attorney RFR/ym Attachments We ore comm tled to provrdmq excellent pubic sc r .re and sofaty h) a' who iive work rind ploy in our vlbrorIt tn,p,ca htstao,- cwnrr u y OFFICE OF THE CITY ATTORNEY RAUL AGUILA, CITY ATTORNEY COMMSSiC}N MEMORANDUM TO: Honorable Mayor and Members of the City Commission Jimmy L. Morales. City Manager FROM: Raul J. Aguila. City Attorne DATE: September 11. 2019 SUBJECT: A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORiDA, DIRECTING THE CITY ATTORNEY TO SEEK LEAVE OF COURT TO APPEAR AS AMICUS CURIAE AND FILE A BRIEF IN SUPPORT OF THE PLAINTIFFS IN ANY APPEAL OF A TRIAL COURT ORDER IN PANES V. 0 C FOOD & BEVERAGE, LLC ( CASE NO. 18 -CA -003554-0), WHICH FOUND THAT THE ORANGE COUNTY HUMAN RIGHTS ORDINANCE WAS PREEMPTED BY THE FLORIDA CIVIL RIGHTS ACT. The attached Resolution is submitted for consideration by the Mayor and City Commission at the September 11, 2019 City Commission meeting. The Resolution is sponsored by Commissioner Michael Gongora and co-sponsored by Mayor Dan Gelber. On April 6, 2018. Plaintiffs. Anita Panes and Brittney Smith ("Plaintiffs"). filed a complaint in Orange County Circuit Court against 0 C Food & Beverage LLC., d/b/a/ Rachel's and West Palm Beach Food and Beverage. LLC, d/b/a Rachel's Adult Entertainment and Steakhouse Defendant"), alleging unlawful discrimination on the basis of sex pursuant to Orange County's Human Rights Ordinance and seeking injunctive relief and compensatory damages. The action arose from the Plaintiffs visit to the Defendants' place of business, wherein the Plaintiffs. two women. were told that they were not allowed to enter the premises of the Defendants' adult establishment unless accompanied by a male companion. In their complaint. Plaintiffs alleged unlawful discrimination on the basis of sex, pursuant to Section 22-42 of the Orange County Code: Sec. 22-42. - Prohibition of discrimination in public accommodations. It is a violation of this article for a person who owns or operates a place of public accommodation, whether personally or through the actions of an employee or independent contractor. to deny or refuse to another individual the full and equal enjoyment of the facilities and services of any place of public accommodation on the basis of that individual's age. race. color. religion. national origin disability. marital status. familial status. sex. or sexual orientation Commission Memorandum September 11, 2019 Page 2 Defendant filed a motion to dismiss, arguing that Orange County's Human Rights Ordinance. codified in Chapter 22 of the Orange County Code. is preempted by the Florida Civil Rights Act FCRA'). On May 20, 2019, the Circuit Court entered an order granting the dismissal of the Plaintiffs' complaint, finding that the FCRA preempted Orange County's Human Rights Ordinance. As the Circuit Court's ruling sets a dangerous precedent and jeopardizes the validity of local human ordinances across the state of Florida, including the City's Human Rights Ordinance. Commissioner Gongora hereby requests that the City Commission direct the City Attorney to seek leave of court to appear if amicus curiae (friend of court) and file a brief in support of the Plaintiffs in the Fifth District Court of Appeals and in any subsequent appeals therefrom. RAIFA/sp RESOLUTION NO. A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, DIRECTING THE CITY ATTORNEY TO SEEK LEAVE OF COURT TO APPEAR AS AMICUS CURIAE AND FILE A BRIEF IN SUPPORT OF THE PLAINTIFFS IN ANY APPEAL OF A TRIAL COURT ORDER IN YANES V. 0 C FOOD & BEVERAGE, LLC ( CASE NO. 18 -CA - 003554 -0), WHICH FOUND THAT THE ORANGE COUNTY HUMAN RIGHTS ORDINANCE WAS PREEMPTED BY THE FLORIDA CIVIL RIGHTS ACT. WHEREAS, on April 6, 2018, Plaintiffs, Anita Yanes and Brittney Smith Plaintiffs"), filed a complaint in Orange County Circuit Court against 0 C Food & Beverage, LLC., d/b/a/ Rachel's and West Palm Beach Food and Beverage, LLC, d/b/a Rachel's Adult Entertainment and Steakhouse ("Defendant"), alleging unlawful discrimination on the basis of sex pursuant to Orange County's Human Rights Ordinance and seeking injunctive relief and compensatory damages; and WHEREAS, the lawsuit was initiated after the Plaintiffs were denied entry to the Defendant's adult establishment unless they were accompanied by a male companion; and WHEREAS, in their complaint, Plaintiffs argued that the Defendant's policy was in violation of Orange County's Human Rights Ordinance, which prohibits discrimination in a place of public accommodation on the basis of sex; and WHEREAS, Defendant filed a motion to dismiss, arguing that the complaint should be dismissed for failure to state a cause of action because the lawsuit should have been filed under the Florida Civil Rights Act ("FCRA") rather than the local human rights ordinance, which, Defendant alleged, is preempted by the FCRA; and WHEREAS, on May 20, 2019, the Circuit Court entered an order granting the dismissal of the Plaintiffs' complaint, finding that the FCRA preempted Orange County's Human Rights Ordinance, and that the FCRA provides a complete structure for litigating discrimination cases; and WHEREAS, the Mayor and City Commission assert that the Circuit Court's order of dismissal is erroneous and jeopardizes the validity of local human ordinances across the State of Florida, including the City's own Human Rights Ordinance; and WHEREAS, the City of Miami Beach has always been at the forefront of protecting civil rights and has one of the most progressive and comprehensive human rights ordinances in the country; and WHEREAS, as such, the Mayor and City Commission desire that the City Attorney seeks leave of court to appear as amicus curiae ("friend of the court") and file a brief in support of Plaintiffs and in defense of Orange County's Human Rights Ordinance. NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City Commission hereby direct the City Attorney to seek leave of court to appear as amicus curiae and file a brief in support of the Plaintiffs in the case of Yanes v. 0 C Food & Beverage, LLC Case No. 18 -CA -003554-0), which case found that the Orange County Human Rights Ordinance was preempted by the Florida Civil Rights Act.. PASSED AND ADOPTED this 11th day of September, 2019. ATTEST: Rafael E. Granado, City Clerk Dan Gelber, Mayor Sponsored by Commissioner Michael Gongora; cosponsored by Mayor Dan Gelber) Filing # 89765390 E -Filed 05/20/2019 10:22:33 AM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA ANITA YANES and BRITTANY SMITH, CASE NO.: 2018 -CA -003554-0 Plaintiffs, v. O C FOOD & BEVERAGE, LLC, • d/b/a/ RACHEL'S, and WEST PALM BEACH FOOD AND BEVERAGE, LLC, d/b/a RACHEL'S ADULT ENTERTAINMENT AND STEAKHOUSE, Defendants. ORDER GRANTING DEFENDANTS' "COMPOSITE MOTION TO DISMISS COMPLAINT DATED APRIL 6, 2018" and ORDER DISMISSING THE PLAINTIFFS' COMPLAINT WITHOUT PREJUDICE THIS MATTER came before the Court for a hearing on January 24, 2019 upon the Composite Motion to Dismiss Complaint Dated April 6. 2018," filed on May 25, 2018. The Court, having considered the Motion, case law, and arguments of counsel, finds as follows: RELEVANT FACTS AND PROCEDURAL HISTORY This action arises from the Plaintiffs' visit to the Defendants' place of business, wherein the Plaintiffs, two women, were told that they were not allowed to enter the premises unless accompanied by a male companion. The Plaintiffs filed their Complaint based on unlawful discrimination pursuant to section 22-42 of the Orange County Code: a) It is a violation of this article for a person who owns or operates a place of public accommodation, whether personally or through the actions of an employee or independent contractor, to deny or refuse to another individual the full and equal enjoyment of the facilities and services of any place of public accommodation on the basis of that individual's age, race, color, religion, national origin, disability, marital status, familial status, sex, or sexual orientation. b) It is a violation of this article for a person who owns or operates a place of public accommodation, either personally or through the actions of an employee or independent contractor, to display or publish any written communication which is to the effect that any of the facilities and/or services of a place of public accommodation will be denied to any individual or that any such individual is unwelcome, objectionable or unacceptable because of that individual's age, race, color, religion, national origin, disability, marital status, familial status, sex, or sexual orientation. The Defendants filed their "Composite Motion to Dismiss Complaint Dated April 6, 2018," arguing that the Complaint should be dismissed because the Plaintiffs failed to state a cause of action because they should have filed suit under Chapter 760, Florida Statutes (2018) rather than the local ordinance. The Court heard the Motion on January 24, 2019; this Order follows. ANALYSIS AND RULING A motion to dismiss tests whether the plaintiff has stated a cause of action." Bell v. Indian River Memorial Hosp., 778 So. 2d 1030, 1032 (Fla. 4th DCA 2001). Furthermore, w]hen determining the merits of a motion to dismiss, the trial court's consideration is limited to the four corners of the complaint, the allegations of which must be accepted as true and considered in the light most favorable to the nonmoving party." Id.; see, e.g.. Solorzano v. First Union Mortg. Corp., 896 So. 2d 847, 849 (Fla. 4th DCA 2005); Taylor v. City of Riviera Beach, 801 So. 2d 259, 262 (Fla. 4th DCA 2001); Samuels v. King Motor Co. of Fort Lauderdale, 782 So. 2d 489, 495 (Fla. 4th DCA 2001); Bolz v. State Farm Mut. Ins. Co.. 679 So. 2d 836, 837 Fla. 2d DCA 1996) (indicating that a motion to dismiss is designed to test the legal sufficiency of a complaint. not to determine issues of fact). 2 of 4 The Defendants raise two arguments for dismissal in their Motion: (1) the Plaintiffs fail to state a cause of action because they predicated their Complaint on Orange County Code Sections 22-4 and 22-42, rather than Chapter 760, Florida Statutes (2018), and the Plaintiffs have not complied with Chapter 760's conditions precedent; and (2) the Court is without personal and/or subject matter jurisdiction over West Palm Beach Food and Beverage, LLC, because it does not own or operate a business in Orange County, Florida. The Plaintiffs respond that the Orange County Code is constitutional and is not preempted by the statute, and the Defendants have failed to take the necessary steps to challenge the constitutionality of the local ordinance. Local ordinances are inferior to the laws of the state and must not conflict with any controlling provision of a statute." Phantom of Brevard, Inc. v. Brevard Cty., 3 So. 3d 309, 314 Fla. 2008) (citing Thomas v. State, 614 So. 2d 468, 470 (Fla. 1993)) (emphasis added). It is true that Florida counties are given broad authority to enact local ordinances, but the legislature can preempt that authority either expressly or by implication. Phantom of Clearwater, Inc. v. Pinellas Cty., 894 So. 2d 1011, 1018 (Fla. 2d DCA 2005). "Preemption by state law, however, need not be explicit so long as it is clear that the legislature has clearly preempted local regulation of the subject." Masone v. City ofAventura. 147 So. 3d 492, 495 (Fla. 2014). "Implied preemption is found where the state legislative scheme of regulation is pervasive and the local legislation would present the danger of conflict with that pervasive regulatory scheme." Id. When reviewing Chapter 760, Florida Statutes (2018), it becomes clear that the legislature crafted a comprehensive scheme in which a person can seek relief from unlawful discrimination. The chapter includes a section on the purpose of the law, how it is enforced, and remedies. See generally Fla. Stat. §§ 760.01, 760.021, 760.07 (2018). While the statutes do not explicitly state that any local ordinance is preempted, when examining the chapter as a whole, it 3 of 4 appears that it is intended to be a complete structure for litigating discrimination cases. such as alleged here. Additionally. as the Defendants note. Chapter 760 requires that a party exhaust all of his/her administrative remedies, whereas the ordinance makes no such provision. The Court therefore agrees with the Defendants that the Plaintiffs must seek relief under Chapter 760, and the Complaint must be dismissed. Accordingly. it is hereby ORDERED AND ADJUDGED that the Defendants' Motion is GRANTED. The Plaintiffs' Complaint is DISMISSED without prejudice. The Plaintiffs shall file an amended Complaint within 20 days of the rendition of this Order. and the Defendant shall file any responsive pleadings within 20 days after that. DONE AND ORDERED in Chambers. at Orlando. Orange County. Florida, on this 7 - day of Iftplip,t. 2019. KEITH A. CARSTEN Circuit Judge CERTIFICATE OF SERVICE I HEREBY CERTIFY that on YWQ' O . 2019, a true and accurate copy of the foregoing was a -tiled using the Cou?rf ECF filing system, which will send notice to all counsel of record. Judicial Assistant Because the Court has dismissed the Complaint in its entirety on other grounds. it declines to address the Defendants' jurisdictional argument as to West Palm Beach and Beverage. LLC. 4 of 4 THOMAS G. BRADFORD 44 CHESTNUT TRAIL TEQUESTA, FL 33469 561) 744-76401 tgbradford3@gmail.com October 23, 2019 To the Attention of Elected Florida Municipal Officials Re: Consideration of Adoption of a Resolution Supporting Efforts to Remove State Statute Preemptions of Local Law Relating to Regulation of Auxiliary Containers, Wrappings or Plastic Bags or Use or Sale of Polystyrene Dear Elected Municipal Official: By way of introduction, I am the former manager of Tequesta and Palm Beach. Today, I serve as a volunteer on the Tequesta Environmental Advisory Committee. However, I am writing to you today as a private citizen and not in any official capacity. As a native Floridian, I have witnessed the growth of this state and its transition from an agricultural economy to a primarily service sector economy with ever expanding urbanization and a decreasing interconnectedness between man and the environment in which we live, work and play. This results in many environmental problems for the air, the land and our waters. All one has to do is walk the tideline and you will see that our oceans and waterways have become a human dumping ground, particularly for plastics that either do not breakdown or are slow in doing so. Single -use and other plastic products create unique problems for landfill management and marine life. It is time Florida localities, particularly Florida coastal communities, have the right to regulate these materials that create these problems should they so choose. Our new Governor has stated he is of this same opinion. The content of the attached resolution was approved by the Palm Beach Town Council on October 10 and is being distributed around the state and can easily be amended to fit the resolution format of your community. It enumerates many of the problems of various plastic products. The resolution urges our Florida legislators to support the adoption of SB 182, which, if adopted, will give local government the ability to regulate these materials to help begin the process of restoring the integrity of our waters and help protect the marine life affected by said materials. If SB 182 is signed into law each community can decide to do so or not. The following link will take you to SB 182 for your review. http•//www flsenate.gov/Session/Ri11/2020/1R2/BillText/Filed/PDF Will you consider pursuing adoption of a similar resolution by your governing board? If you do so, could you also send a copy to the Governor, the state legislators serving your municipality, the other municipalities in your area and a copy to me for tracking purposes in order to help build momentum for this important cause? If your community has already issued a resolution on this matter, a reminder letter to your local legislative delegation of your position on preemption of local law in regard to plastics detrimental to our environment and marine life may prove to be important in the 2020 Legislative Session. Your time and efforts in this regard are greatly appreciated. Sincerely, Thomas G. Bradford Enclosures: TPB Res. No. 122-2019 RESOLUTION NO. 122-2019 A RESOLUTION OF THE MAYOR AND TOWN COUNCIL OF THE TOWN OF PALM BEACH, PALM BEACH COUNTY, FLORIDA, STRONGLY ENCOURAGING THE STATE LEGISLATURE TO APPROVE SENATE BILL 182, AND ANY COMPANION HOUSE BILLS RELATING TO THE PREEMPTION OF RECYCLABLE AND POLYSTYRENE MATERIALS BY AMENDING SECTION 403.7033 AND SECTION 500.90, , FLORIDA STATUTES, REPEALING THE PREEMPTION OF LOCAL LAWS REGARDING THE USE OR SALE OF SINGLE -USE PLASTIC BAGS AND POLYSTYRENE MATERIALS. WHEREAS, the Town Council of the Town of Palm Beach is diligent in its efforts to preserve the beautiful environment that supports the tourism industry which is so vital to the economy of the Town of Palm Beach and the State of Florida; and WHEREAS, plastic bags and polystyrene are detrimental because they do not fully degrade in our oceans or land environment and they introduce unsafe chemicals into our environment; and WHEREAS, plastic bags and polystyrene create the potential for death of land and marine animals through entanglement and ingestion; and WHEREAS, the expansive usage of single -use shopping bags and polystyrene containers and their typical disposal rates creates an impediment to the Town's waste reduction and recycling goals while creating unsightly litter; and WHEREAS, single -use plastic bags and polystyrene containers are difficult to recycle and frequently contaminate material that is processed through the Town's curbside recycling and composting programs; and WHEREAS, reusable bags and biodegradable containers are considered to be the best option to reduce waste and litter, protect wildlife and conserve resources; and WHEREAS, Council acknowledges that some businesses have taken affirmative steps to accomplish this goal and recognizes their proactive efforts; and WHEREAS, it is in the public interest for the Council to encourage and enable the location of a viable reusable bag manufacturing operation in the State of Florida; and Resolution No. 122-2019 1 WHEREAS, it is in the public interest for the Florida Legislature to provide statewide deregulation of the proliferation of single -use shopping bags and polystyrene containers; and WHEREAS, the Florida Legislature under "The Energy, Climate Change, and Economic Security Act of 2008", enacted House Bill 7135, creating Sections 403.7033 and 500.90, Florida Statutes; and WHEREAS, Section 403.7033 requires the Florida Department of Environmental Protection (DEP) to perform an analysis and submit a report to the Legislature by February 1, 2010, regarding the necessity and efficacy of both statewide and local regulation of bags used by consumers to carry products from retail establishments; and WHEREAS, the statute also provides that until such time that the Legislature adopts the recommendations of DEP, no local or state government may enact any regulation or tax on the use of such retail bags; and WHEREAS, the DEP analysis determined a need for new or different regulations of bags used by customers to carry products from retail establishments and recommends the implementation of new standards requiring the prohibition of plastic carryout bags encourages the use of reusable bags to the benefit of the State's environment; and WHEREAS, Section 500.90 preempts local regulation of the use or sale of polystyrene products; and WHEREAS, the Town Council supports the efforts to repeal Sections 403.7033 and 500.90, Florida Statutes, so that local government can enact appropriate legislation relating to the regulation of plastic bags and polystyrene containers. NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND TOWN COUNCIL OF THE TOWN OF PALM BEACH, PALM BEACH COUNTY, FLORIDA: Section 1. The Mayor and Town Council support efforts to repeal Sections 403.7033 and 500.90, Florida Statutes, so that local governments are no longer preempted from enacting appropriate legislation relating to the regulation of plastic bags and polystyrene containers. Section 2. The Mayor and Town Council encourages approval of Senate Bill 182 and all companion House Bills eliminating preemption language in Sections 403.7033 and 500.90, Florida State Statutes. Resolution No. 122-2019 2 Section 3. This Resolution shall become effective immediately upon passage. PASSED AND ADOPTED in a regular, adjourned session of the Town Council of the Town of Palm Beach assembled this 10th day of October 2019. Gail L. Coniglio, Mayor Danielle H. Moore, Town Council President Margaret A. Zeidman, Council President Pro Tem Julie Araskog, Town Council Member ATTEST: Lew Crampton, Town Council Member Kathleen Dominguez, CMC Bobbie Lindsay, Town Council Member Town Clerk Resolution No. 122-2019 3 10/a / 19 Hand axe- - Major Oassfr al 2 211 1111114a 44I Z CLIPPER SHIFT D 1*... oa z I\ir4) s 111 ki RgYq SF'gsp 4 1° 4 ,4, o et PIMA s 0 r 1 c 7TH ST Proposed 8' Multi -Use Path - FY21 40,000 for Construction PALM 6TH ST 8' Multi -Use Path Incorporated into FY20 Seminole Rd Stormwater Improvement Project 6,000 for Design, -420,000 for Construction r ii,• '' , 14O• S7- co itf*..* co Proposed 8' Multi -Use Path - FY21 P1 */* 50,000 for Construction Q f111/ ft STURDIVANT AV3 SA 50 175 ST 0 z 2ND ST 1ST ST 35op, g, t Atlantic Beach, Florida Engineering Department Boo Seminole Road Atlantic Beach, FL 32233 www.coab.us Proposed Seminole Road Multi -Use Path