Resolution 80-16322 RESOLUTION NO. 80-16322
A RESOLUTION OF THE CITY COMMISSION OF THE
CITY OF MIAMI BEACH, FLORIDA, AUTHORIZING
ACCEPTANCE OF FINAL SETTLEMENT STIPULATION
IN CONNECTION WITH E. J. FRANKEL, ET AL. ,
D/B/A RONEY PLAZA APARTMENTS VS. CITY OF
MIAMI BEACH, ETC . , CIRCUIT COURT CASE NO.
72-25900 CA (15) .
WHEREAS, this matter involves a 1972 class action suit
brought against the City of Miami Beach by E. J. Frankel, owners
and operators of the Roney Plaza Apartments, on behalf of them-
selves and all other consumers of water in Miami Beach, for a
Declaratory Decree (judgment) against the City of Miami Beach
as to the effective date of an ordinance increasing the water
rate; and
WHEREAS, the City Attorney' s Office and the City
Manager have determined and recommended that it is in the best
interest of the City to enter into a settlement for the reasons
more particularly set forth in Commission Memorandum NoM C ;
and
WHEREAS, the City Commission deems it to be in the
best interest of the City to enter into a final settlement stipu-
lation as hereinabove set forth;
NOW, THEREFORE, BE IT DULY RESOLVED BY THE CITY COMMISSION
OF THE CITY OF MIAMI BEACH, FLORIDA, that the City Attorney' s Office,
as the agent for the City of Miami Beach, is hereby authorized to
enter into a final settlement as approved by the City Commission;
and the City Commission, City Clerk, City Manager, and City Attorney,
be and they are hereby authorized and directed to comply with the
Order Approving Settlement of the Entire Cause, entered into by
the Court on May 21, 1980.
PASSED and ADOPTED this 18th day of June , 1980.
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Attest:
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City Cler
FORM APPROVED
LEGAL DEPT.
By _ �� ...._
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OFFICE OF THE CITY ATTORNEY - 1700 CONVENTION CENTER DRIVE -MIAMI BEACH,FLORIDA 33139
OFFICE OF THE CITY ATTORNEY
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F L O R I D A
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JOHN A. RITTERs7 �3/;��' TELEPHONE :673-7470
CITY ATTORNEY $per^
COMMISSION MEMORANDUM NO. ��v
DATE: June 4 , 1980
TO: Mayor Murray Meyerson and
Members of the City Commission
City Manager Haroa T. Toal
FROM: John A. Ritter ♦;`
City Attorney
SUBJECT: PROPOSED SETTLEMENT OF E. J. FRANKEL, ET AL. , D/B/A
RONEY PLAZA APARTMENTS v. CITY OF MIAMI BEACH, ETC.
CIRCUIT COURT CASE NO. 72-25900 CA (15)
DISCUSSION:
This matter involves a 1972 class action suit brought against the
City of Miami Beach by E. J. Frankel, owners and operators of the
Roney Plaza Apartments, on behalf of themselves and all other con-
sumers of water in Miami Beach, for a Declaratory Decree (judgment)
against the City of Miami Beach as to the effective date of an
ordinance increasing the water rate.
Ordinance No. 1936 was passed and adopted by the City of Miami Beach
on September 25 , 1972 as an emergency measure, increasing the water
rate charged to all consumers by eight cents per thousand gallons
on all billings effective October 1, 1972. The actual language of
the ordinance provided that "this ordinance shall go into effect
as of October 1, 1972" .
The October 1, 1972 effective date actually increased the rate at
some time prior to October 1, 1972 since the City billed for the
period August 30 , 1972 through October 2 , 1972 at the new increased
rate.
On September 26 , 1972 , the day after the adoption of the subject
ordinance, the former City Attorney, Joseph Wanick, issued an opinion
that the new rates are to be applied to "all bills issued" after
October 1, 1972 , for water consumed prior to the effective date of
the amendatory ordinance, and prior to the date upon which the same
could have become binding upon the consumers.
The Plaintiffs allege that in order for Amendatory Ordinance No.
1936 to become contractually binding upon the Plaintiffs , and all
other similarly situated consumers, it was compulsory, pursuant
to the City Charter (Chapter 45-20) , that the City give Plaintiffs
and each member of the class thirty days ' written notice of the
actual change in rates.
Because these statements sent to the water users on October 1st
constituted the first written notice given of the increase,
Plaintiffs contend that the increased rate could not have taken
effect and been applied to the Plaintiffs and members of the class
of water consumers earlier than the calendar month commencing
November 1, 1972.
1
AGENDA g_ .„, (6
ITEM "
DATE (Q — ( -1O
The effect of a ruling adverse to the City' s position would require
the refund of all funds exacted retroactively (August 30 - November 1 ,
1972) in addition to the payment of reasonable attorneys_' fee, and
six percent interest accruing thereon from September 1 , 1972 until
the date of a Final Order.
I have been informed by the Finance Department that the amount in
controversy would be approximately $215 , 000. 00 were the class action
to be entirely successful for the period of August 30 - November 1,
1972.
In light of the Notice Requirements of our own Charter (Chapter 45-20)
and the recent decision of a New Jersey Superior Court striking down
a similar amendatory ordinance (which increased the water fees retro-
actively to the previous month) as an impairment of contract in vio-
lation of the Federal and State Constitution, our office has negotiated
the attached settlement of the entire cause subject to the approval
of the Miami Beach City Commission.
The attached Order, signed and dated May 21, 1980 , provides that "in
the event the Miami Beach City Commission does not approve the pro-
visions of the Order within thirty days, then in that event this
Order shall be null and void. "
The advantages to the City of the attached settlement agreement are
as follows :
1. The City' s liability for overcharges would be limited to
the month of September, 1972 rather than from the period of
August 30 to November 1, 1972 .
2 . Notice will only be given to the members of the class who
actually paid water bills to the City of Miami Beach for useage
during the month of September, 1972 (and not subsequent owners of
the property) by placing the Notice of Settlement for publication
in four local newspapers, once a week for four consecutive weeks
rather than sending individual notices in the U.S. mail to each
member of the class.
3. All costs and expenses , including but limited to attorneys '
fee, court costs, costs for notifying class members, as well as
costs and expenses for auditing and accounting procedures to determine
the amount due to the members of the class, will be deducted from the
gross .settlement proceeds.
4. Only those members of the class who notify the City in
writing that they desire to receive the proceeds of the settlement
by no later than Tuesday, July 29 , 1980, will be entitled to recover
their share after the above-described deductions.
5. It is the opinion of the City' s Finance Department that,
under the terms of this settlement agreement, the City' s exposure
would be greatly reduced from approximately $215,000. 00 to approx-
imately $75, 000. 00 should all possible members of the class file a
claim. Most probably only sixty to seventy percent of all eligible
consumers will respond to the Notices.
If the Commission desires to enter into this settlement agreement ,
it is necessary to adopt the attached resolution.
JAR/BMS/el
Attachment
2
Page 2 of 2
IN THE CIRCUIT COURT OF THE ELEVENTH
JUDICIAL CIRCUIT IN AND FOR DADE
COUNTY, FLORIDA.
GENERAL JURISDICTION DIVISION
CASE NO. 72-25900 CA (15)
E. J. FRANKEL, et al. , d/b/a .
RONEY PLAZA APARTMENTS,
Plaintiffs , .
vs. ORDER APPROVING SETTLEMENT
OF THE ENTIRE CAUSE
CITY OF MIAMI BEACH, etc. ,
Defendant. .
The parties to this cause having agreed to the settle-
ment of the pending litigation upon the following terms :
(a) That the defendant City agrees to pay the month
of September, 1972 , alleged water overcharges in the amount of
eight cents per thousand gallons for water used, plus 6% interest
on that amount from September 1, 1972, until the date of this order.
(b) Plaintiffs ' counsel, Sibley, Giblin, Levenson &
Glaser, are to receive as their reasonable attorneys' fees for the
representation of the entire class , one-third of the gross settle-
ment proceeds .
(c) The defendant City shall advance all costs and ex-
penses for notifying the class members , as well as any costs and
expenses for auditing and accounting procedures to determine the
amount due the members of the class, and these costs and expenses
shall be deducted from the gross settlement proceeds.
(d) Notice shall be given to the members of the class,
which consists of all those persons having paid water bills to the
City of Miami Beach for usage during the month of September, 1972 ,
by placing the notice of settlement (a copy of which is attached
hereto as Exhibit A) for publication in The Miami Herald, The Miami
j • d A /
I
News, the Miami Beach Reporter and The Miami Review, said publica-
tion to be made once a week for four consecutive weeks, the first
publication to start on Tuesday, July 1, 1980.
(e) Only those members of the class who notify the
City in writing that they desire to receive the proceeds of the
settlement due them no later than Tuesday, July 29 , 1980, shall
be entitled to recover their share of the eight cents per thousand
gallons of water used after the above described deductions.
IT IS, THEREUPON, ORDERED AND ADJUDGED:
1. That the above described settlement is approved,
subject to this order being adopted and approved by the Miami
Beach City Commission, through a duly enacted resolution.
2. That this Court approves the notice to the class
attached hereto as Exhibit A, and finds it meets the requirements
of due process of law.
3. That in the event the Miami Beach City Commission
does not approve of the provisions of this order within thirty
days, then in that event this order shall be null and void.
4. That upon the accomplishment of the mechanics of this
settlement, as set forth above, the parties shall file their joint
report in writing to this Court, and the cause shall then be dis-
missed, with prejudice.
DONE AND ORDERED in chambers this 9- day of May , 1980.
JUDGE GEORGE ORR
CIRCUIT JUDGE
Copies furnished to
all counsel of record
• 1
NOTICE OF SETTLEMENT AND RIGHT TO CLAIM PROCEEDS
OF CITY OF MIAMI BEACH CONSUMER WATER RATE
LITIGATION
In the case of E. J. Frankel v. City of Miami Beach now
pending in the Circuit Court in and for Dade County, Florida,
Case Number 72-25900 , a settlement has been reached regarding
alleged overcharge for water usage by non-municipal consumers
of water from the City of Miami Beach in the amount of 8¢ per
1,000 gallons. The City has agreed to refund the sum of 851
per 1,000 gallons paid by non-municipal consumers of water for
the month of September, 1972 together with interest of 6% less
deductions for costs and expenses of notifying the Class and
determining the amounts to be refunded and attorneys ' fees to
the plaintiff' s attorneys in the amount of 1/3 of the total
settlement proceeds to those City of Miami Beach water consumers
who paid bills for water service during the month of September ,
1972 and who, no later than Tuesday, July 29 , 1980 , notify the
City of Miami Beach in writing, delivered to City of Miami
Beach, 1972 Water Rate Litigation, 1700 Convention Center Drive,
Miami Beach, Florida, 33139 , that they desire to receive their
share of the settlement proceeds .
5
EXHIBIT A
ORIGINAL
RESOLU TON NQ. 30-16322
Authorizing acceptance of final settlement
stipulation in couuiection with
E.J. Frankel Et Al d/b/a/ Roney Plaza - •
Apts v CMB (water rates increase 1972)