MILTON A. FRIED, APPELLANT,
v.
CITY OF MIAMI BEACH, A MUNICIPAL CORPORATION, APPELLEE; CITY OF MIAMI BEACH, A MUNICIPAL CORPORATION, APPELLANT, V. MILTON A. FRIED, APPELLEE
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Milton Fried challenged Miami Beach's excise tax ordinance as an invalid duplication under Florida law. The trial court invalidated the ordinance and awarded Fried one dollar in recovery, but denied his requests for a permanent injunction and attorney fees. Both parties appealed, and the appellate court affirmed the trial court's holdings.
The appellate court affirmed that ordinance No. 1619 was invalid at the time the city collected the tax because it was not authorized by general law and conflicted with Section 212.081(3) of the Florida Statutes. The court also affirmed the denial of the permanent injunction (as the subsequent enabling act provided a lawful basis for future collections) and the denial of attorney fees (for which no lawful basis was disclosed).
“That Ordinance 1619 of the City of Miami Beach was invalid at the time the Defendant City collected the subject tax from the Plaintiff.”
The court's holding that the ordinance lacked legal authority when the tax was collected.
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Join FLexlaw to unlock all legal intelligenceMilton Fried filed suit against the City of Miami Beach seeking to invalidate ordinance No. 1619 imposing an excise tax, recover amounts collected und…
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The appellant, for himself and all others similarly situated, filed a complaint against the City of Miami Beach, seeking a decree invalidating ordinance No. 1619 of the City of Miami Beach, refunding amounts collected thereunder, granting an injunction against further collections, and awarding attorney fees.
Upon trial of the case on issue joined, the trial court held that the excise tax of the City of Miami Beach provided for under ordinance No. 1619 represented a duplication interdicted by Chapter 212 Fla.Stat., F.S.A., and therefore was invalid. The plaintiff Fried was awarded the recovery of one dollar. The prayers for a permanent injunction and for attorney fees were denied. The plaintiff appealed.
In his opinion the trial judge noted that subsequent to the filing of this suit an enabling act for such an excise tax by the City of Miami Beach had been passed (Ch. 67-930). The trial judge took the position, and correctly so, that the subsequent Act did not aid the prior ordinance but was a sufficient basis for denial of the plaintiff’s request for permanent injunction against the levy of such an excise tax.
On consideration of the record and briefs we observe no reason to disturb the holdings of the trial judge challenged by the appellant Fried, being those with reference to the attempt to bring the action as a class suit, and to the denial of the prayer for attorney’s fees, for the allowance of which no lawful basis was disclosed.
The separate (consolidated) appeal of the City of Miami Beach challenged the holding that ordinance No. 1619 was invalid. In a written opinion of the court referred to and made a part of the judgment, it was said:
“That Ordinance 1619 of the City of Miami Beach was invalid at the time the Defendant City collected the subject tax from the Plaintiff. In spite of the so-called Home Rule provisions of the Constitution of the State of Florida, municipalities in Dade County are not completely immune and independent from the provisions of General law in the *310State of Florida and from the legislative power which rests in the State Legislature. Seminole Rock Products, Inc. v. Town of Medley [Fla.], 180 So.2d 457. Not only was Ordinance 1619 not authorized by General Statutes at the time Plaintiff paid the questioned tax, but said Ordinance was in direct conflict with Section 212.081(3). [Fla.Stat., F.S.A.]”
In so holding the trial judge was eminently correct.
Affirmed.
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State v. City OF Miami Beach, 234 So. 2d 103 (Fla. 1970)…e and the levies made and to be made pursuant thereto. The issuance of the bonds and the pledge of the other enumerated taxes to the payment thereof are authorized and I would affirm the judgment only to that extent. . Fried v. City of Miami Beach, 212 So. 2d 308 (3rd Dist.Ct.App.Fla.1968). . The new Ordinance is number 1727 but is, in all material respects, the same as former Ordinance no. 1619. . See Beasley v. Cahoon, 109 Fla. 106, 147 So. 288 (1933) ; State ex rel. Juvenal v. Neville, 123 Fla. 745, 167…
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City OF Miami Beach v. Lansburgh, 218 So. 2d 519 (Fla. 3d DCA 1969)…ecome effective on the happening of certain conditions or contingencies specified in the act, or implied therefrom, [citations omitted]’ ” Id. at 575. The City has placed great reliance on our decision in Fried v. City of Miami Beach, Fla.App.1968, 212 So. 2d 308, cert. denied, Nov. 8, 1968, 219 So. 2d 699, and contends that the Fried case dictates that we now hold Ord. No. 1652 to be invalid. A closer examination of the Fried case will show that such reliance is misplaced. In Fried, Miami Beach City Ordinan…
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City OF Miami Beach v. Sterin, 214 So. 2d 358 (Fla. 3d DCA 1968)…Inc., operates a hotel in the city. It was a defendant but later filed an answer in the nature of an interpleader and was allowed to deposit in the registry of the court money collected under the tax. In Fried v. City of Miami Beach, Fla. App.1968, 212 So. 2d 308, we dealt with an action similar to the one before us. Final judgment in Fried was entered prior to the entry of final judgment in this cause. Our opinion on that appeal settles most of the points the city raises here. The point not presented upon t…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Seminole Rock Prods., Inc. v. Town OF Medley, 180 So. 2d 457 (Fla. 1965)