Will Miami be forced to pay out in Carollo case? It’s a multimillion-dollar legal question
The lawsuit filed against Miami Commissioner Joe Carollo by two Little Havana businessmen claiming he targeted them after they supported a political foe hit so many speed bumps that it took more than five years just to get a jury seated.
And now, six weeks after the stunning $63.5 million verdict against Carollo, William “Bill” Fuller and Martin Pinilla are once again petitioning the court, this time to amend the verdict on the very same issue the court denied the duo four years ago — that the city of Miami should be on the hook for a significant portion of the judgment.
There is one obvious motivation for their latest legal gambit: Money.
The Calle Ocho businessmen don’t expect to collect anywhere near the verdict amount from Carollo. The commissioner’s net worth on his last public disclosure at the end of 2021 was less than the value of his $2.5 million Coconut Grove home, which under Florida law is protected from civil judgments. And with a big jury verdict in their favor, Fuller and Pinilla have decided to take another shot at asking the judge to order the city to pay out at least some part of the damages.
Read More: ‘Smush that cucaracha’. Little Havana business owners celebrate victory over Joe Carollo
Their attorney Jeff Gutchess argues that new information emerged after the original lawsuit was filed in 2018 and during the trial to reconsider the matter of the city’s role. They say city emails discovered during the legal battle and Carollo’s own testimony show city staffers working hand-in-hand with the commissioner to try and destroy their businesses.
But several experts on civil litigation say convincing the judge to include the city and expand the responsibility for paying damages is likely to be a tall task.
Ethics attorney J.C. Planas — who once took part in a failed effort to recall Carollo — said “legally speaking,” the argument cuts both ways. Though the city paid for Carollo’s defense, the city wasn’t a listed defendant in the case and the jury verdict mentioned nothing about him acting in his official capacity, he said.
“The issue that may trump that is that the city should have known that this was unlawful. And they allowed him to do it. They acquiesced,” Planas said. “But still, I think it’s really hard to speculate right now what happens because there are so many moving pieces.”
Attorney Mike Pizzi, whose clients include the city of Medley and who is frequently in litigation with cities, said it will be difficult for one simple reason: The city didn’t get a chance to defend itself in court.
“And under the law,” Pizzi said, “the city has protections that Carollo [as an individual] does not.”
Gutchess filed a 30-page motion in federal court to alter the verdict earlier this month. Carollo’s attorneys, led by Miami’s Ben Kuehne, have until the first week of August to formally respond but told The Miami Herald that the motion against the city should be denied.
“Our position is that they are untimely,” Kuehne said. “That the motion comes too late and that it’s wrong as a matter of law and isn’t what the case was tried on.”
Miami City Attorney Victoria Mendez dismissed the motion as a legal stunt destined to fail, saying the matter was settled when the city of Miami was removed from the lawsuit four years ago.
“The plaintiff’s current motion to add the city, after the case has been tried to conclusion in an attempt to subject it to the verdict has no basis in fact, or law, anywhere in the United States,” said Mendez.
Federal District Court Judge Rodney Smith could rule on the matter by the end of October. But even if he denies it, the battle with the city isn’t over. Fuller and other business partners have filed a separate lawsuit against the city of Miami under an entity called Mad Room LLC, an umbrella company that runs several of their Calle Ocho properties and businesses. A trial date has not been set yet.
A LONG RUNNING LEGAL BATTLE
The move to include the city comes almost two months after jurors sided with Fuller and Pinilla’s argument that Carollo was so angered by their support of a political opponent in 2017 that he bullied police and code enforcement into targeting and trying to destroy several of their businesses along the touristy commercial Calle Ocho corridor. Fuller owns Little Havana’s iconic Ball & Chain nightclub. He and Pinilla also own and operate several other businesses in the neighborhood
Specifically, jurors found that Carollo had violated their First Amendment right to endorse the candidate of their choice, in this case a political opponent that Carollo defeated named Alfonso “Alfie” Leon. During the trial, they showed how police and code enforcement forced Ball & Chain to close for more than a year and how other businesses were shuttered or forced to move.
Fuller concedes a decision in his favor could be a hit to taxpayers. But, he said if that’s what it takes to hold Carollo and other politicians abusing authority accountable, it’s worth it. Fuller and Pinilla have also recently petitioned the court for injunctive relief, arguing that the city and Carollo have continued to target their businesses, even after the early June verdict
“At this point, it’s obvious the city has total disregard for the abuse of power and for the abuse of their departments that have been weaponized basically against taxpayers like ourselves and business owners,” Fuller told The Herald in an interview. “If the taxpayers are upset, then maybe that’s what it’s going to take to rally the tax base to remove these public officials and put an end to this.”
WILL CAROLLO’S OWN WORDS COST THE CITY
Pinilla and Fuller are asking for the city to pick up $16 million of the verdict, the amount awarded for emotional duress and the destruction of their reputations. The city is protected against the other $47 million in punitive damages, with Florida being one of only three states that forbids punitive awards against public entities.
While the latest motion admits there was “no dispute” Carollo was sued individually at the outset, it argues all that changed because of actions taken by the commissioner and the city after the lawsuit was filed in 2018.
For starters, the city paid all of Carollo’s legal fees leading up to the trial — an arrangement that Mendez defends, saying Florida law makes it it clear that public officials are entitled to legal representation at public expense to defend themselves for doing their job.
The commissioner, however, also failed repeatedly before the trial began to win a legal claim of Qualified Immunity, a court-created rule that gives government officials extra protections from actions taken while at work. The commissioner’s argument was turned down at the state and appeals level and the Supreme Court refused to hear the case.
The businessmen argue that Carollo defended himself repeatedly during the trial by saying he was acting in an “official capacity,” that federal court precedent allows them to amend a jury verdict and that an email from the city’s former building director shows newly-created city policy was directed solely at their businesses.
Gutchess points to a Feb. 14, 2019, Miami commission meeting in which Mendez was given authority by commissioners to use code enforcement and police to investigate Fuller and Pinilla properties. At that point, he said, targeting Fuller and Pinilla became official city policy.
“Carollo could not have inflicted the damage he did without the city’s whole-hearted support,” Gutchess told the Miami Herald.
Trial testimony from witnesses showed Carollo said he was undertaking “an official investigation” during a visit to one of their properties. He also showed employees of Fuller and Pinilla his Miami identification and, he used his authority to shut down Domino Plaza, for what he claimed was lack of proper permitting.
Gutchess also says a May 27, 2020 email from city Building Director Ace Marrero is a clear indication of how city policy was created and aimed directly at Fuller and Pinilla.
“Just had a lengthy meeting with the manager and almost the entire City Attorney office plus Adele talking about Bill Fuller,” Marrero wrote. “The Manager wants us to revise and update our policies to be more stringent when it comes to work without permit, clearly define what are unsafe conditions, and shut down all structures that don’t comply.”
The motion also references an infamous Feb. 14, 2019 commission meeting in which Carollo attempted to pass a resolution asking the governor to appoint a special prosecutor to investigate city employees who failed to issue citations against Fuller and Pinilla’s properties. The motion failed.
Yet Carollo was successful in convincing commissioners to give Mendez the authority to research Fuller and Pinilla’s properties for “violations relating to no certificate of use, certificate of use obtained under false pretenses and/or properties with violations that pose life-safety issues.” The resolution also called for closing businesses on their properties until they are brought into compliance.
“The targeting of Fuller became widespread and pervasive under [City Manager Art] Noriega and because final policy makers Noriega and Mendez ratified all of Carollo’s targeting,” Gutchess said.
