Ribaya v. The Board of Trustees of the City Pension Fund for Firefighters and Police Officers in the City of Tampa

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING

MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT

DENNIS RIBAYA, )

)

Appellant, )

)

v. ) Case No. 2D13-4549

)

THE BOARD OF TRUSTEES OF THE )

CITY PENSION FUND FOR )

FIREFIGHTERS AND POLICE )

OFFICERS IN THE CITY OF TAMPA, )

)

Appellee. )

)

Opinion filed April 8, 2015.

Appeal from the Circuit Court for

Hillsborough County; Christopher C.

Sabella, Judge.

David M. Snyder of David M. Snyder

Professional Association, Tampa, for

Appellant.

Paul A. Daragjati and Robert D. Klausner

of Klausner, Kaufman, Jensen & Levinson,

Plantation, for Appellee.

Jonathan D. Kaney, Jr., of Kaney & Olivari,

P.L., Ormond Beach, for Amici Curiae First

Amendment Foundation, Florida Chapter

Reporters' Committee for Freedom of the

Press, Florida Press Association, Florida

Scholastic Press Association, Society of

Professional Journalists, Creative Loafing

Tampa, LLC, and Sandra F. Chance, J.D.,

as Executive Director of Brechner Center

for Freedom of Information, in Support of

Appellant.

ALTENBERND, Judge.

Dennis Ribaya appeals an order dismissing his second amended

complaint with prejudice. In his complaint, he alleged a violation of subsection

286.011(1), Florida Statutes (2012), often called "the Sunshine Law," and also sought

declaratory relief under Chapter 86, Florida Statutes (2012), the Declaratory Judgment

Act, concerning actions of the Board of Trustees of the City Pension Fund for

Firefighters and Police Officers in the City of Tampa (the Board). Specifically, he sought

a declaration that: (1) his conduct at a meeting in June 2012 did not violate Policy 109,

which regulated conduct at the meeting; (2) his exclusion from one or more public

meetings based on the Board's decision that he had violated the policy was a violation

of the Sunshine Law; and (3) the violation of the Sunshine Law voided all actions taken

by the Board at those meetings. The circuit court dismissed the action, not because it

failed to state a cause of action, but because the circuit court determined that the issues

alleged were moot and unworthy of declaratory relief. Discussing our standard of

review in greater detail in this opinion, we conclude that the trial court erred in

dismissing this action without reaching its merits. In the context of an action for

declaratory relief that is filed to enforce the Sunshine Law, the fact that the conditions

allegedly resulting in the violation have been resolved does not necessarily render the

action moot where it is unclear from the pleadings whether a violation has occurred and

whether a remedy would be required for such violation. It may be that the circuit court

will ultimately rule against Mr. Ribaya on one or more of these three issues, but the

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matter could not be dismissed on the pleadings alone. Accordingly, we reverse and

remand for further proceedings.

I. THE PROCEEDINGS IN THE CIRCUIT COURT

According to his second amended complaint, Mr. Ribaya is a retired

firefighter who receives a pension from the fund that is administered by the Board. He

attended a meeting of the Board on June 28, 2012. During a break when the meeting

was in recess, someone asked him if he expected a timely response to a public records

request that he apparently had made to the Board. Mr. Ribaya's pleading alleges that

"in a low, soft voice" he replied: "Sh*t, no."1

His conduct apparently offended others in attendance at the meeting. At

the time, the Board's policy concerning disruptions at its meetings was Policy 109,

which in its entirety stated:

Any disruption of a board meeting or pension office

operations, whether verbal or up to and including physical

violence, will not be tolerated. Anyone disrupting a meeting

or pension office operations will be issued a 90 day trespass

warning, will be asked to leave the building, and should they

refuse to leave or return to the building while the trespass

warning is in effect, they will be subject to arrest for

trespassing.

This action will in no way inhibit any person from the

ability to conduct pension business by phone, mail, fax, or

email.

The Board relied on this policy and had a police officer deliver a trespass

warning to Mr. Ribaya immediately before its next meeting on July 25, 2012. To avoid

1

Mr. Ribaya attached to his pleading a digital recording allegedly of the

public meeting, claiming that no disruption is discernable on the tape. We have

assumed the truth of the pleading but have not reviewed the recording; we have no

authority to make any factual finding relating to that attachment.

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arrest, he did not attend that meeting. Despite written requests to the Board, at least

one of which was from his attorney, Mr. Ribaya was not allowed to attend the public

meetings until after the ninety-day period expired. Thus, he was allegedly barred from

the monthly meetings in July, August, and September.

Mr. Ribaya did not sue the Board under any theory that might have

allowed him to obtain a monetary judgment for some civil wrong. Instead, his complaint

alleged a violation of the Sunshine Law and sought declaratory relief. He claimed that

his exclusion from the meetings was not warranted under Policy 109, and that under

section 286.011(1), his wrongful exclusion from the meetings violated Florida's

Sunshine Law. Finally, he claimed that the only appropriate remedy for this violation

required voiding all actions taken at those meetings.

By the time the circuit court dismissed this action, the ninety-day period

had expired and the Board had adopted a new policy to address disruptions at its

meetings. Thus, there can be no dispute that aspects of the overall controversy had

become moot. The circuit court entered an order carefully explaining its reasons for

dismissing this action with prejudice. Although we reverse that order, its content has

been very helpful during our review.

The circuit court accurately noted that Mr. Ribaya was not challenging the

facial validity of Policy 109. The court concluded that the "real issue" was whether Mr.

Ribaya was wrongfully issued a trespass warning. Given the change in circumstances,

as to this issue, the court concluded that there was no present dispute and that the

mere possibility of a dispute in the future did not justify the full adjudication of an action

for declaratory relief. It recognized that there was "no precise Florida case on point" on

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the question of whether the use of the trespass statute can be a violation of the

Sunshine Law. Nevertheless, concluding that a public body has the authority to ensure

orderly conduct at its meetings without violating the Sunshine Law, it saw no reason to

reach the merits of the complaint. It relied, in part, on this court's decision in Leach-

Wells v. City of Bradenton, 734 So. 2d 1168 (Fla. 2d DCA 1999), in which we affirmed a

summary judgment in favor of the defendant in an action to enjoin a public construction

project despite the defendant's technical violation of the Sunshine Law. Mr. Ribaya

appeals the trial court's order of dismissal.

II. THE STANDARD OF REVIEW FOR AN ORDER DISMISSING

AN ACTION FOR DECLARATORY RELIEF

Because the second amended complaint was dismissed with prejudice on

a motion to dismiss, we are required to assume the truth of the well-pleaded facts. See,

e.g., X Corp. v. Y Person, 622 So. 2d 1098, 1100 (Fla. 2d DCA 1993). There is likely

more to this story, but both the circuit court and this court must assume that Mr. Ribaya

was barred from public meetings due to his quiet use of a single word of profanity in the

public section while the Board's meeting was in recess.

The parties argue that this case is governed by two distinctly different

standards of review. Relying on this court's decision in Angelo's Aggregate Materials,

Ltd. v. Pasco County, 118 So. 3d 971, 973-74 (Fla. 2d DCA 2013), Mr. Ribaya claims

that we should perform a de novo review of the dismissal as a pure issue of law. The

Board, relying on Abruzzo v. Haller, 603 So. 2d 1338, 1339 (Fla. 1st DCA 1992), and

other similar cases, argues that we should give great deference to the circuit court's

ruling and reverse only in the event of an abuse of discretion. There is little question

that the case law discussing the standard of review for an order dismissing an action for

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declaratory relief under chapter 86, at least if read outside its context, presents two or

more views. To the largest extent, however, we believe the case law can be reconciled.

A complaint for declaratory relief under chapter 86, like any other

complaint, must be legally sufficient. In general, the complaint must allege that: (1)

there is a bona fide dispute between the parties; (2) the plaintiff has a justiciable

question as to the existence or nonexistence of some right, status, immunity, power or

privilege, or as to some fact upon which existence of such a claim may depend; (3) the

plaintiff is in doubt as to the claim; and (4) there is a bona fide, actual, present need for

the declaration.2 See State Farm Mut. Auto. Ins. Co. v. Wallace, 209 So. 2d 719, 721

(Fla. 2d DCA 1968). A complaint can be legally sufficient even if the plaintiff ultimately

loses the case on its merits. See X Corp., 622 So. 2d at 1101; accord Murphy v. Bay

Colony Prop. Owners Ass'n, 12 So. 3d 924, 926 (Fla. 2d DCA 2009). Thus, when a

defendant challenges a complaint for declaratory relief on the ground that it fails to state

a cause of action, i.e., that it is legally insufficient, the trial court rules on that motion as

a matter of law.3 In that situation, this court reviews the order de novo as an issue of

law. See, e.g., Combs v. City of Naples, 834 So. 2d 194, 197 (Fla. 2d DCA 2002)

(affirming trial court's dismissal of count for declaratory judgment after performing de

novo review).

2

As we explain in more detail later in this opinion, the first and fourth

elements requiring a "bona fide dispute" and a "bona fide need" are not found in chapter

86; they were judicially created.

3

A purist might argue that chapter 86 is a remedial statute that provides a

statutory remedy to resolve legal questions when the plaintiff does not quite have a

"cause of action." Nevertheless, the case law consistently refers to actions brought

under chapter 86 as causes of action. That is certainly the function served by the

statute.

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But beyond legal sufficiency, the case law has created a gatekeeper

function for the trial court. The trial court, within its sound discretion, may dismiss an

action that technically states a cause of action when the circumstances do not justify

using legal resources to try the factual issue and resolve the legal questions. See, e.g.,

Abruzzo, 603 So. 2d at 1339.

The need for this gatekeeper function arises from the breadth of the

potential statutory cause of action created in chapter 86. The goals of the Declaratory

Judgment Act are to relieve litigants of the common law rule that a declaration of rights

cannot be adjudicated unless a right has been violated, and to render practical help in

ending controversies that have not reached the stage where other legal relief is

immediately available. Bell v. Associated Indeps., Inc., 143 So. 2d 904, 907-08 (Fla. 2d

DCA 1962); see also State, Dep't of Educ. v. Glasser, 622 So. 2d 1003, 1006 (Fla. 2d

DCA 1992), rev'd on other grounds, 622 So. 2d 944 (Fla. 1993). To further these goals,

the use of declaratory judgments should be "liberal[ly]" construed and its "boundaries"

should be "elastic." Bell, 143 So. 2d at 908; X Corp., 622 So. 2d at 1100; accord

Jackson v. Fed. Ins. Co., 643 So. 2d 56, 58 (Fla. 4th DCA 1994).

Unfortunately, any such ubiquitous tool can be used for a wrong purpose.

Thus, the case law warns that chapter 86 is a statute with "special objectives" that

should not be "perverted" by permitting its use as a "catch-all." See Mayes Printing

Co. v. Flowers, 154 So. 2d 859, 862 (Fla. 1st DCA 1963). To ensure that this does not

occur, the courts have developed requirements to invoke the act that go beyond the

wording of the act itself: that there is a "bona fide dispute" between the parties and a

"bona fide . . . need for [a] declaration." See State, Dep't of Envtl. Prot. v. Garcia, 99

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So. 3d 539, 544 (Fla. 3d DCA 2011); Britamco Underwriters, Inc. v. Cent. Jersey Invs.,

Inc., 632 So. 2d 138, 139 (Fla. 4th DCA 1994); see also X Corp, 622 So. 2d at 1100-01.

Although these requirements have been developed as essential elements necessary to

plead a cause of action under chapter 86, they play an additional role in the context of

the court's gatekeeping function. That is, once a trial court determines that a plaintiff

has sufficiently pleaded the essential elements for a declaratory action, circumstances

beyond the pleadings may be apparent and may signal to the trial court that there is not

a bona fide need for declaratory relief. For example, in looking beyond the pleadings, it

may become clear to the trial court that the act "is being used . . . to foster frivolous or

useless litigation, to satisfy idle curiosity or to answer abstract questions." See X Corp.,

622 So. 2d at 1102.

Thus, after the trial court determines as a matter of law that the complaint

is legally sufficient, performing its gatekeeping function, it has the authority to decline to

adjudicate the claim when the circumstances do not warrant expending the legal

resources to do so. A trial court may occasionally have the ability to perform this

gatekeeping function when ruling on a motion to dismiss. But it is difficult for a trial

court to justify its discretionary act of dismissal at that stage unless the parties have

made stipulations or concessions on the record or the complaint contains a detailed and

complete recitation of the facts and legal issues. In most instances, the discretionary

decision to dismiss an action for declaratory relief because it is unworthy of adjudication

is a decision that focuses on whether the matter involves a "bona fide dispute" and a

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"bone fide need." These issues make the decision more akin to a summary judgment.4

See, e.g., Leach-Wells v. City of Bradenton, 734 So. 2d 1168 (Fla. 2d DCA 1999)

(affirming summary judgment despite technical violation of the Sunshine Law). When

the trial court dismisses an action for declaratory relief with prejudice in this gatekeeping

function, we review that decision for abuse of discretion. See Palumbo v. Moore, 777

So. 2d 1177 (Fla. 5th DCA 2001) (holding that trial court abused its discretion in

dismissing with prejudice counts for declaratory judgment where pleadings adequately

stated cause of action under chapter 86).

The district courts occasionally review an order dismissing an action for

declaratory judgment that seems to fit into a third category. Mr. Ribaya's case appears

to fit this category. In these cases, the trial court enters an order of dismissal in the

alleged exercise of its discretion under its gatekeeping function, but in fact makes a

legal declaration as to the dispute in its order. Sometimes that declaration is express

and other times it is implicit. This normally occurs when the trial court has decided that

it is clear that the plaintiff is going to lose the lawsuit on the merits, usually as a matter

of law. Rather than enter a judgment declaring an issue of law that seems obvious to

the trial court, it dismisses the action for failure to allege a "bona fide" issue.

The standard of review for this third category is more complex and

involves at least two steps. First, the circuit court does not have "discretion" to

determine the applicable law that governs the dispute; that is a question of law that

should be reviewed de novo. Second, whether the legal issue is so settled or perhaps

4

Unlike a summary judgment, it may be possible for a trial court to make a

discretionary decision to dismiss an action for lack of a bona fide dispute or need even if

some factual dispute exists.

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so insignificant that it does not warrant the issuance of a binding judgment on the merits

is an issue for which the trial court should have discretion. However, when the trial

court essentially enters a declaratory judgment as to one or more significant, disputed

issues while describing the judgment as an order of dismissal, the role of discretion is

limited.5 See Prop. Rights Prot. Grp., Inc. v. City of Tampa¸ 627 So. 2d 61 (Fla. 2d DCA

1993) (reversing order of dismissal with prejudice that expressly declared statute and

related ordinances to be unconstitutional on their face and as applied to plaintiffs); see

also Phantom of Clearwater, Inc. v. Pinellas Cnty., 894 So. 2d 1011 (Fla. 2d DCA 2005)

(affirming in part and reversing in part an order of dismissal that expressly declared an

ordinance to be constitutional). This is true because, even if the answer to the

requested declaration seems obvious to the trial judge and the plaintiff is destined to

lose, the parties may still need a binding disposition on the merits, which a dismissal

does not provide.

Finally, the standard of review of an order dismissing an action for

declaratory judgment is somewhat different in the context of a Sunshine Law challenge.

Section 286.011 creates broad public access to governmental meetings. This statute

implements the constitutional right of access created in Article I, section 24, of the

Florida Constitution. Subsection 286.011(4) clearly contemplates legal actions by

members of the public to enforce the Sunshine Law. See § 286.011(4) (providing for

5

Freedom Properties v. Alderman, 589 So. 2d 424 (Fla. 2d DCA 1991), is

a case in which the trial court appropriately ordered dismissal based on well-established

law. In Alderman, this court affirmed the dismissal of a complaint seeking a declaration

of entitlement to homestead exemptions where the plaintiffs were residents of a

retirement community and did not have legal or equitable title to any portion of the

community’s property. See id. at 424-25.

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attorney's fees where "an action has been filed . . . to enforce the provisions of this

section" and the trial court determines that a violation has occurred).

But section 286.011 does not contain an express right of action. As a

result, it has become common for litigants to file actions for claims under the Sunshine

Law that allege a claim for violation of the statute and a claim for declaratory relief. In

effect, the litigant alleges a claim under section 286.011 and seeks a remedy under

chapter 86. The second-amended complaint in this case is such a complaint. When

the allegations of a complaint under the Sunshine Law allege a potential violation of that

law, a trial court's discretion to dismiss the complaint with prejudice on a motion to

dismiss should be very limited.

III. MR. RIBAYA'S LAWSUIT WAS NOT RIPE FOR

A GATEKEEPER'S DISMISSAL

At the beginning of this opinion, we explained that Mr. Ribaya sought a

declaration that: (1) his conduct at a meeting in June 2012 did not violate Policy 109,

which regulated conduct at the meeting; (2) his exclusion from one or more public

meetings based on the Board's decision that he had violated the policy was itself a

violation of the Sunshine Law; and (3) the violation of the Sunshine Law voided all

actions taken by the Board at those meetings. Because the trial court and this court

must accept the well-pleaded facts, the first proposition—i.e., that Mr. Ribaya did not

violate Policy 109—was not a matter that could be resolved against him on the motion

to dismiss. The trial court, in fact, did not resolve that issue but, instead, concluded that

it was moot. Except for the effect of this issue on the Sunshine Law issues, that would

seem to have been a reasonable resolution.

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The difficulty in this case arises because the second and third questions to

which Mr. Ribaya seeks a declaration appear to be bona fide legal questions without a

well-settled answer. As to Mr. Ribaya's second question, there does not appear to be

any dispositive case addressing whether a wrongful exclusion of a member of the public

from such a meeting based on a claim of disturbance is or is not a violation of the

Sunshine Law. No one can seriously debate that those in charge of public meetings

can have rules governing decorum. The need to maintain order at public meetings is

critical to the effective functioning of a government that values public input and

welcomes sunshine at such meetings. But policies to assure order have the potential to

be misused to silence opposing views. Without prejudging the issue in any manner, we

cannot say that the exclusion of Mr. Ribaya was or was not a violation of section

286.011.

Assuming there was a violation of the Sunshine Law, the limited body of

case law tends to support Mr. Ribaya's argument on his third proposition that such a

violation requires the court to void all action that occurred at the affected meetings. The

statute itself states that "no resolution, rule, or formal action shall be considered binding

except as taken or made at [a public meeting in compliance with the statute]."

§ 286.011(1). The early case law held that a violation of the act voided an ordinance

"ab initio." See Town of Palm Beach v. Gradison, 296 So. 2d 473, 477 (Fla. 1974)

("Mere showing that the government in the sunshine law has been violated constitutes

an irreparable public injury so that the ordinance is void [a]b initio."). More recent cases

also apply this remedy. See, e.g., Grapski v. City of Alachua, 31 So. 3d 193, 200 (Fla.

1st DCA 2010); Sarasota Citizens for Responsible Gov't v. City of Sarasota, 48 So. 3d

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755, 763 (Fla. 2010) (declaring void ab initio City's approval of minutes made after

sunshine violation).

Other case law, however, has recognized that a violation of the law can be

"cured" by remedial action. See Bruckner v. City of Dania Beach, 823 So. 2d 167, 172

(Fla. 4th DCA 2002). Our decision in Leach-Wells v. City of Bradenton, 734 So. 2d

1168 (Fla. 2d DCA 1999), involved a situation in which the violation was cured. The

Board in this case does not argue that it cured any violation. It may be that a Sunshine

Law violation that results in the absence of a single member of the audience at a public

meeting, a spectator without a role to play concerning any item on the agenda, justifies

a remedy less severe than voiding all action at the meeting. But this apparently is not

an issue that has been resolved by prior precedent.

In sum, although there appears to be no case law squarely resolving the

third issue—whether a wrongful exclusion of Mr. Ribaya would void actions taken at the

meeting—there is legal support for that proposition. If Mr. Ribaya's exclusion is indeed

a violation that voids all actions taken at these meetings, then this remedy would be

necessary even after Policy 109 was rewritten. Thus, it cannot be claimed that Mr.

Ribaya's legal dispute with the Board was moot when the case was dismissed. In the

absence of established law or more developed facts, the trial court abused its discretion

in dismissing what appears on the face of the complaint to be a bona fide dispute in

need of resolution.

It may be that Mr. Ribaya ultimately will not prevail on one or all three of

his issues, but at this stage, his action could not be dismissed with prejudice.

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Reversed and remanded.

NORTHCUTT and CRENSHAW, JJ., Concur.

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