Ordinance Challenges

Question 1

Via Ordinance, a City grants sight seeing tour businesses franchises to operate in the City.
Pursuant to such Ordinances, the City granted franchises to 2 sister corporations (the “Franchisees”).
The Ordinances prohibited the granting of franchises to competitors of the Franchisees & also prohibited operation of a competitor within 1000 feet of them.
New operator sues. What are his 2 legal arguments?

Answer 1

1) injunctive relief for violations of the state antitrust laws:
(a) § 542.18 – every K, combination or conspiracy restraining trade is unlawful.
(b) § 542.19 - it is unlawful for a person to monopolize, attempt to monopolize or conspire to monopolize any part of trade or commerce.

2) 42 U.S.C. § 1983 claim for damages and injunctive relief for violations of the Commerce Clause of the US Constitution.

Question 2

Can an injured party get damages from LG for violating them?

Answer 2

542.18 - K or conspire to restrain trade.
542.19 - monopoly
———–
No.
§ 542.235 -
(1) No criminal action can be brought vs. LG,
(2) No damages, interest or AF from LGs.,
(3) No injunctive or other equitable relief. [FS 542.235(2)]
———–
Duck Tours v. City of Key West, 875 So.2d 650 (Fla. 3d DCA 2004)

Question 3

LG:
What can an injured party recover for LG’s violation of the State antitrust laws?
What can he NOT recover from LGs?
———–
LG OFFICIAL/EMPLOYEE:
What is required to recover damages, interest & AF against LG official or employee?

Answer 3

LG:
Injunction or equitable relief. § 542.235
AF too if PL “substantially prevails.” FS 542.23.
—
(1) No criminal action can be brought vs. LG,
(2) No damages, interest or AF from LGs.,
(3) No injunctive or other equitable relief vs. LG or its officials if acting w/i the scope of duties for the H, S & W of citizens. [FS 542.235(2)]
———–
LG OFFICIAL/EMPLOYEE:
(1) No injunctive or other equitable relief vs. LG or its officials if acting w/i the scope of duties for the H, S & W of citizens. [FS 542.235(2)]
> BUT
(2) Criminal, civil damages, interest & AF if PO or PE was acting for personal gain for himself, his immediate family or principal for who he works.
» Remember:
to Inure to the Principal he Voted for Himself hree [(1) H-W, (2) F-M, S-D) times.
———–
Duck Tours v. City of Key West, 875 So.2d 650 (Fla. 3d DCA 2004)

Question 4

What is the s/l for an antitrust violation claim vs. LG?  
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How might that limitation get extended?
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What are the required times to sue?

Answer 4

If AG or State begins an action, private actions are suspended during the pendency & for 1 year thereafter.
—
If don’t sue w/in the limitation or the 1 year extension, forever barred.
———–
Duck Tours v. City of Key West, 875 So.2d 650 (Fla. 3d DCA 2004)

Question 5

How might Munis overcome?

Answer 5

If action authorized by State law, then Munis eligible for State Action Immunity..
———–
Duck Tours v. City of Key West, 875 So.2d 650 (Fla. 3d DCA 2004)

Question 6

What does a muni want to show to be exempt from a violation of the State's antitrust laws?
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How would it show that?
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Must the exemption be express?
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Can HR be relied upon?

Answer 6

Authorized by State law.
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Point to law.
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No but it must be clear that the state law delegated to the municipality “the express authority to take action that foreseeably will result in anticompetitive effects."
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No.
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Duck Tours v. City of Key West, 875 So.2d 650 (Fla. 3d DCA 2004)

Question 7

Give an example of a State law permitting munis to violate antitrust laws?

Answer 7

Excluded towns wanted to be served by the w/ww but the City refused unless the towns would annex into the City.
———–
Excluded towns sued for City monopolizing sewage service & anticompetitive behavior for refusing to serve.
———–
Supreme Court found the State law clearly anticipated that monopolization or restraint of trade would occur.
———–
See, Duck Tours v. City of Key West, 875 So.2d 650 (Fla. 3d DCA 2004)

Question 8

Give an example.

Answer 8

Boat tours in Hawaii b/c they cater to interstate tourists.
———–
See, Duck Tours v. City of Key West, 875 So.2d 650 (Fla. 3d DCA 2004)

Question 9

Can PL recover damages from:

Muni for violation of:

(1) Commerce Clause?
(2) State Antitrust laws?
- –
(3) Individual Public Official or Public Employee for violation of State Antitrust laws?

Answer 9

COMMERCE:
Yes.
If business totally destroyed, recover value as of date destroyed.
If business continued, recover lost profits.
———–
STATE ANTITRUST:
Injunctive, equitable & AF.
———–
PO/PE:
If acted for gain to himself, immediate family or principal.
“to Inure to the Principal, he Voted for Himself 3 [(1) H-W. (2) S-D, (3) F-M] times.