COMMISSIONER JOE CAROLLO

v.

PLATINUM ADVISORS, LLC

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 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 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

II. Analysis3

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

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.