Fox One, LLC v. City of Miami

• Court: District Court of Appeal of Florida
• Decided: December 3, 2025
• Docket: 3D2024-0211
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed December 3, 2025. Not final until disposition of timely filed motion for rehearing.

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Nos. 3D24-0211 & 3D24-0936 Lower Tribunal No. 22-21983-CA-01 ________________

Fox One, LLC, Appellant,

vs.

City of Miami, Appellee.

Appeals from the Circuit Court for Miami-Dade County, Thomas J. Rebull, Judge.

The Ferro Law Firm, P.A., and Simon Ferro, Leon Cosgrove Jimenez, LLP, and Scott B. Cosgrove, for appellant.

George K. Wysong III, City Attorney, and Eric J. Eves, Assistant City Attorney Supervisor, for appellee.

Before EMAS, MILLER, and LOBREE, JJ.

MILLER, J. These consolidated appeals implicate amendments the Florida

Legislature enacted in 2019 to the Florida Building Codes Act, which prohibit

local governments from amassing and retaining surpluses garnered from

building permitting and inspection fees. Appellant, Fox One, LLC, appeals

from a final judgment and antecedent interlocutory order dismissing all

claims for monetary relief alleged against appellee, the City of Miami, in the

second amended complaint in its putative class action lawsuit. The crux of

the claims was that the City unlawfully charged building permitting and

inspection fees and failed to rebate the surplus exceeding the average of its

operating budget for the last four fiscal years. The trial court dismissed the

complaint on the grounds that Fox One could not recover any surplus that

was generated from the fees paid before the statutory amendments were

enacted because no cause of action existed prior to that date. Concluding

that this issue cannot be disposed of on a motion to dismiss, we reverse.

I

Before July 1, 2019, local governments were authorized to carry

forward unexpended revenues collected from permitting and building fees to

future years or refund fees at their discretion. Effective July 1, 2019, the

legislature amended the Florida Building Codes Act, prohibiting local

governments from carrying forward any unexpended revenue exceeding the

2 average of their operating budgets for enforcing the Code over the previous

four fiscal years. See § 553.80(7)(a), Fla. Stat. (2019). Any excess revenue

under the amendments must be used to rebate or reduce fees. See id.

§ 553.80(7)(a)2. The amendments authorized an exception for those local

governments that established a Building Inspections Funds Advisory Board

as of January 1, 2019. See id. § 553.80(7)(a).

In 2022, Fox One filed suit seeking a refund of fees paid during the

2017 to 2018 fiscal year with a group of similarly situated plaintiffs requesting

similar relief. The City moved to dismiss, contending that the 2019

amendment could not be used to support a rebate of fees collected before

the effective date of the statute. The trial court granted the motion. Fox One

voluntarily dismissed its remaining causes of action, and this consolidated

appeal ensued.

II

A

“On a motion to dismiss for failure to state a cause of action, the

standard of review is de novo.” People’s Tr. Ins. Co. v. Alonzo-Pombo, 307

So. 3d 840, 842 (Fla. 3d DCA 2020). “In doing so, we are confined to the

four corners of the complaint and attachments, and we must accept all well-

3 pleaded allegations as true.” Steinmetz v. Pickholtz, 414 So. 3d 309, 312

(Fla. 3d DCA 2025).

B

To resolve this appeal, we must determine whether surpluses derived

for building and permitting fees collected before July 1, 2019, are exempt

from the statutory carrying forward prohibition and rebate provision. Section

553.80(7), Florida Statutes, provides, in pertinent part: “A local government

may not carry forward an amount exceeding the average of its operating

budget for enforcing the Florida Building Code for the previous 4 fiscal years

. . . Any amount exceeding this limit must be used as authorized in

subparagraph [(a)]2.” § 553.80(7), Fla. Stat. Subparagraph two, in turn,

states: “[a] local government must use any excess funds that it is prohibited

from carrying forward to rebate and reduce fees . . . .” Id. § 553.80(7)(a)2.

Absent ambiguity, “we need only resort to what Justice Thomas has

described as the ‘one, cardinal canon [of construction] before all others’—

that is, we ‘presume that a legislature says in a statute what it means and

means in a statute what it says there.’” Page v. Deutsche Bank Tr. Co. Ams.,

308 So. 3d 953, 958 (Fla. 2020) (quoting Connecticut Nat. Bank v. Germain,

503 U.S. 249, 253-54 (1992)). And here, the statutory language is clear and

unambiguous. Section 553.80(7)(a)2 prohibits local governments from

4 carrying forward surpluses after the effective date of the statute. There is no

exception for surpluses accumulated before July 1, 2019.

Indeed, the legislature did carve out an exception to the carrying

forward prohibition. Those local governments that established an advisory

board as of January 1, 2019, are permitted to carry forward revenues.

See § 553.80(7)(a), Fla. Stat. We decline the invitation to engraft another

exception. See Young v. Progressive Se. Ins. Co., 753 So. 2d 80, 85 (Fla.

2000) (“Under the principle of statutory construction, expressio unius est

exclusio alterius, the mention of one thing implies the exclusion of another.”

(citation omitted)); see also State v. C.M., 154 So. 3d 1177, 1180 (Fla. 4th

DCA 2015) (quoting Antonin Scalia & Bryan A. Garner, Reading Law: The

Interpretation of Legal Texts 93 (2012) (“[T]he ‘Omitted–Case Canon,’

mean[s] ‘nothing is to be added to what the text states or reasonably implies

(casus omissus pro omisso habendus est). That is, a matter not covered is

to be treated as not covered.”)); Fla. Dep’t of Revenue v. Fla. Mun. Power

Agency, 789 So. 2d 320, 324 (Fla. 2001) (“Under fundamental principles of

separation of powers, courts cannot judicially alter the wording of statutes

where the Legislature clearly has not done so.”); Morgan v. Amerada Hess

Corp., 357 So. 2d 1040, 1043 (Fla. 1st DCA 1978) (“To engraft into the

5 statute an exception which the legislature did not see fit to itself put in the

statute would amount to judicial legislation.”).

The City’s reliance on the 2018 version of the statute does not compel

any different conclusion. It is true that the 2018 version governed at the time

the City collected Fox One’s fees. But that version does not govern the

prospective retention and use of the funds post-collection. Instead, each

local government must comply with the requirement imposed by the statute

at the end of each fiscal year after the enactment.

Finally, to the extent the City raises persuasive arguments it is shielded

by waiver, the funds were committed or allocated before the enactment of

the amendment, and others had rebate priority over Fox One, hence Fox

One does not stand to recover, we cannot stray from our four-corners review.

These inquiries all entail factual questions, which are incapable of resolution

on a motion to dismiss. See Leon Cnty. v. Stephen S. Dobson III, P.A., 917

So. 2d 278, 280 (Fla. 1st DCA 2005) (“When there are factual issues in

dispute, an issue should not be resolved with a motion to dismiss.”).

Reversed and remanded.