Third District Court of Appeal State of Florida
Opinion filed February 12, 2025. Not final until disposition of timely filed motion for rehearing.
________________
No. 3D24-2037 Lower Tribunal No. 22-20524-CA-01 ________________
Richard Klugh, et al., Petitioners,
vs.
City of Miami, Respondent.
On Petition for Writ of Certiorari from the Circuit Court for Miami-Dade County, Thomas J. Rebull, Judge.
A Case of Original Jurisdiction—Mandamus.
Grossman Roth Yaffa Cohen, P.A., and Stuart Z. Grossman and Alex Arteaga-Gomez; Maderal Byrne & Furst, PLLC, and Rachel Wagner Furst and Francisco R. Maderal, for petitioners.
George K. Wysong III, City Attorney, and Eric J. Eves, Assistant City Attorney Supervisor, for respondent.
Before EMAS, SCALES and GORDO, JJ. SCALES, J.
Petitioners, putative class action plaintiffs below, Richard Klugh, Sara
Wolfe and Joseph Kaiser (collectively, “Klugh”) seek mandamus and/or
certiorari relief directed toward an October 14, 2024 trial court order both
granting respondent City of Miami’s (the “City”) motion for partial summary
judgment and staying the case (“the Order”). Below, Klugh challenged the
constitutionality of a City parking surcharge and, in the Order, the trial court
found that, because Klugh’s challenge was an “as applied,” as opposed to a
“facial,” challenge, Klugh was required to exhaust administrative remedies
as a condition precedent to bringing this action. To the extent Klugh’s petition
seeks a writ of mandamus, we dismiss the petition because Klugh’s petition
seeks a writ requiring the trial court to rule in a certain manner, and therefore,
mandamus does not lie as a remedy. We also dismiss Klugh’s petition for
writ of certiorari for lack of jurisdiction because Klugh’s petition fails to
demonstrate the requisite irreparable harm.
Relevant Background
By an ordinance1 adopted in 2004, the City imposed a fifteen percent
surcharge on all parking transactions at City parking facilities that charge a
fee. The ordinance delegated to the City Manager duties regarding collection
1 See Miami, Fla. Code §§ 35-341-47 (2024).
2 of the surcharge. Accordingly, the City Manager, pursuant to the ordinance,
institued City of Miami Parking Surcharge Regulations, which provide for a
parking surcharge administrator. The regulations also provide for remedies
in the event a payor of the surcharge challenges this parking tax. Pursuant
to the regulations, a payor must request from the parking surcharge
administrator a refund of the surcharge amount within one year of the date
the payor pays the surcharge. The regulations further provide that, if the
parking surcharge administrator denies a refund request, the payor may
appeal such a decision to the City Manager.
On October 26, 2022, Klugh, without having requested a refund from
the parking surcharge administrator, filed the instant class action lawsuit2
against the City. In the three-count complaint, Klugh sought (i) a class-wide
refund for the levy of the parking surcharge, (ii) a declaratory judgment
declaring the parking ordinance and surcharge regulations unconstitutional,
and (iii) an injunction to cease the imposition of the surcharge.
As Klugh’s pleading described, the City’s parking surcharge ordinance
was adopted pursuant to section 166.271 of the Florida Statutes. This
enabling statute allows a municipality to impose a parking tax under the
following conditions: (i) the municipality must have a resident population of
2 The trial court has not certified the class at this time.
3 200,000 or more; (ii) the municipality must be located in a county with a
population of more than 500,000; and (iii) more than twenty percent of the
real property of the City is exempt from ad valorem taxation. § 166.271(1),
Fla. Stat. (2022). Klugh alleges that the parking ordinance and resulting
surcharge regulations are unconstitutional because they were implemented
without the requisite statutory authorization. Specifically, Klugh alleges that,
since at least 2017, the City has not meet the requirements of the enabling
statute, because, according to Klugh, less than twenty percent of the real
property in the City is exempt from ad valorem taxation.3
In the City’s answer to Klugh’s complaint, the City asserted, as
affirmative defenses, that Klugh had failed to exhaust the administrative
remedies outlined in the surcharge regulations by Klugh’s failure to first apply
to the parking surcharge administrator for a refund. On May 15, 2024, the
City filed a motion for summary judgment on the issues of constitutionality
3 During the proceedings below, the parties disputed how to interpret the enabling statute’s twenty percent threshold. Ultimately, in an extensive January 12, 2024 order interpreting section 166.271, the trial court ruled in favor of Klugh’s interpretation of the statute. The trial court construed the enabling statute such that the percentage of real property exempt from ad valorum taxes is computed by dividing the (i) total value of exempt real property by (ii) the total value of all assessed real property, as those figures are annually certified by the county property appraiser. The City suggested different, alternate computation methods. We express no opinion as to whether the trial court correctly construed the enabling statute.
4 and, in the alternative, on its defenses that Klugh had failed to exhaust
administrative remedies. On June 19, 2024, Klugh both responded to the
City’s motion and filed a cross-motion for partial summary judgment on the
City’s exhaustion of administrative remedies affirmative defenses.
Without reaching the ultimate constitutional issue, the trial court
entered the Order that granted the City’s summary judgment motion and
denied Klugh’s cross-motion on the exhaustion issue. In its Order, the trial
court found that Klugh’s challenge to the City’s parking ordinance constituted
an “as-applied” challenge and, therefore, Klugh was required to exhaust
administrative remedies as a condition precedent to filing the lawsuit. In the
Order, the trial court stayed further court action and retained jurisdiction to
decide the constitutional issue. In relevant part, the Order states:
[A]s a matter of judicial policy (and not a matter of jurisdiction), [Klugh] must first exhaust administrative remedies before they seek relief in Circuit Court. If [Klugh does] not obtain the relief they seek in the administrative process, then of course [Klugh] may return to this Court to seek the full relief to which they believe they are lawfully entitled. In this way, the Circuit Court always retains its exclusive original jurisdiction to decide the legality of this tax dispute. . . . [T]he Court hereby stays this action pending [Klugh’s] exhaustion of administrative remedies. . . . If [Klugh does] not receive full relief through the administrative process, they may come back to this Court and file a motion to lift the stay and continue this litigation.
Klugh then filed in this Court the instant Petition for Writs of Certiorari
and/or Mandamus. The City responded with a motion to dismiss Klugh’s
5 petition, arguing that mandamus does not lie as a remedy in this case and
that this Court lacks jurisdiction to grant certiorari relief. We address each
alternate remedy sought in Klugh’s petition.
Petition for Writ of Mandamus
Mandamus is an extraordinary remedy available only when the lower
Free access — add to your briefcase to read the full text and ask questions with AI
Third District Court of Appeal State of Florida
Opinion filed February 12, 2025. Not final until disposition of timely filed motion for rehearing.
________________
No. 3D24-2037 Lower Tribunal No. 22-20524-CA-01 ________________
Richard Klugh, et al., Petitioners,
vs.
City of Miami, Respondent.
On Petition for Writ of Certiorari from the Circuit Court for Miami-Dade County, Thomas J. Rebull, Judge.
A Case of Original Jurisdiction—Mandamus.
Grossman Roth Yaffa Cohen, P.A., and Stuart Z. Grossman and Alex Arteaga-Gomez; Maderal Byrne & Furst, PLLC, and Rachel Wagner Furst and Francisco R. Maderal, for petitioners.
George K. Wysong III, City Attorney, and Eric J. Eves, Assistant City Attorney Supervisor, for respondent.
Before EMAS, SCALES and GORDO, JJ. SCALES, J.
Petitioners, putative class action plaintiffs below, Richard Klugh, Sara
Wolfe and Joseph Kaiser (collectively, “Klugh”) seek mandamus and/or
certiorari relief directed toward an October 14, 2024 trial court order both
granting respondent City of Miami’s (the “City”) motion for partial summary
judgment and staying the case (“the Order”). Below, Klugh challenged the
constitutionality of a City parking surcharge and, in the Order, the trial court
found that, because Klugh’s challenge was an “as applied,” as opposed to a
“facial,” challenge, Klugh was required to exhaust administrative remedies
as a condition precedent to bringing this action. To the extent Klugh’s petition
seeks a writ of mandamus, we dismiss the petition because Klugh’s petition
seeks a writ requiring the trial court to rule in a certain manner, and therefore,
mandamus does not lie as a remedy. We also dismiss Klugh’s petition for
writ of certiorari for lack of jurisdiction because Klugh’s petition fails to
demonstrate the requisite irreparable harm.
Relevant Background
By an ordinance1 adopted in 2004, the City imposed a fifteen percent
surcharge on all parking transactions at City parking facilities that charge a
fee. The ordinance delegated to the City Manager duties regarding collection
1 See Miami, Fla. Code §§ 35-341-47 (2024).
2 of the surcharge. Accordingly, the City Manager, pursuant to the ordinance,
institued City of Miami Parking Surcharge Regulations, which provide for a
parking surcharge administrator. The regulations also provide for remedies
in the event a payor of the surcharge challenges this parking tax. Pursuant
to the regulations, a payor must request from the parking surcharge
administrator a refund of the surcharge amount within one year of the date
the payor pays the surcharge. The regulations further provide that, if the
parking surcharge administrator denies a refund request, the payor may
appeal such a decision to the City Manager.
On October 26, 2022, Klugh, without having requested a refund from
the parking surcharge administrator, filed the instant class action lawsuit2
against the City. In the three-count complaint, Klugh sought (i) a class-wide
refund for the levy of the parking surcharge, (ii) a declaratory judgment
declaring the parking ordinance and surcharge regulations unconstitutional,
and (iii) an injunction to cease the imposition of the surcharge.
As Klugh’s pleading described, the City’s parking surcharge ordinance
was adopted pursuant to section 166.271 of the Florida Statutes. This
enabling statute allows a municipality to impose a parking tax under the
following conditions: (i) the municipality must have a resident population of
2 The trial court has not certified the class at this time.
3 200,000 or more; (ii) the municipality must be located in a county with a
population of more than 500,000; and (iii) more than twenty percent of the
real property of the City is exempt from ad valorem taxation. § 166.271(1),
Fla. Stat. (2022). Klugh alleges that the parking ordinance and resulting
surcharge regulations are unconstitutional because they were implemented
without the requisite statutory authorization. Specifically, Klugh alleges that,
since at least 2017, the City has not meet the requirements of the enabling
statute, because, according to Klugh, less than twenty percent of the real
property in the City is exempt from ad valorem taxation.3
In the City’s answer to Klugh’s complaint, the City asserted, as
affirmative defenses, that Klugh had failed to exhaust the administrative
remedies outlined in the surcharge regulations by Klugh’s failure to first apply
to the parking surcharge administrator for a refund. On May 15, 2024, the
City filed a motion for summary judgment on the issues of constitutionality
3 During the proceedings below, the parties disputed how to interpret the enabling statute’s twenty percent threshold. Ultimately, in an extensive January 12, 2024 order interpreting section 166.271, the trial court ruled in favor of Klugh’s interpretation of the statute. The trial court construed the enabling statute such that the percentage of real property exempt from ad valorum taxes is computed by dividing the (i) total value of exempt real property by (ii) the total value of all assessed real property, as those figures are annually certified by the county property appraiser. The City suggested different, alternate computation methods. We express no opinion as to whether the trial court correctly construed the enabling statute.
4 and, in the alternative, on its defenses that Klugh had failed to exhaust
administrative remedies. On June 19, 2024, Klugh both responded to the
City’s motion and filed a cross-motion for partial summary judgment on the
City’s exhaustion of administrative remedies affirmative defenses.
Without reaching the ultimate constitutional issue, the trial court
entered the Order that granted the City’s summary judgment motion and
denied Klugh’s cross-motion on the exhaustion issue. In its Order, the trial
court found that Klugh’s challenge to the City’s parking ordinance constituted
an “as-applied” challenge and, therefore, Klugh was required to exhaust
administrative remedies as a condition precedent to filing the lawsuit. In the
Order, the trial court stayed further court action and retained jurisdiction to
decide the constitutional issue. In relevant part, the Order states:
[A]s a matter of judicial policy (and not a matter of jurisdiction), [Klugh] must first exhaust administrative remedies before they seek relief in Circuit Court. If [Klugh does] not obtain the relief they seek in the administrative process, then of course [Klugh] may return to this Court to seek the full relief to which they believe they are lawfully entitled. In this way, the Circuit Court always retains its exclusive original jurisdiction to decide the legality of this tax dispute. . . . [T]he Court hereby stays this action pending [Klugh’s] exhaustion of administrative remedies. . . . If [Klugh does] not receive full relief through the administrative process, they may come back to this Court and file a motion to lift the stay and continue this litigation.
Klugh then filed in this Court the instant Petition for Writs of Certiorari
and/or Mandamus. The City responded with a motion to dismiss Klugh’s
5 petition, arguing that mandamus does not lie as a remedy in this case and
that this Court lacks jurisdiction to grant certiorari relief. We address each
alternate remedy sought in Klugh’s petition.
Petition for Writ of Mandamus
Mandamus is an extraordinary remedy available only when the lower
tribunal fails to perform a purely ministerial duty; the remedy does not lie to
force the lower tribunal to rule in a particular manner. Mathews v. Crews,
132 So. 3d 776, 778 (Fla. 2014). Citing to section 26.012 of the Florida
Statutes, Klugh argues that, by requiring Klugh to exhaust administrative
remedies, the circuit court skirts its ministerial obligation to adjudicate the
legality of the challenged surcharge. § 26.012(2)(e), Fla. Stat. (2022)
(“Circuit courts shall have exclusive original jurisdiction . . . [i]n all cases
involving legality of any tax assessment or toll or denial of refund, except as
provided in s.72.011[.]”).
We agree with the City, though, that the trial court has exercised its
exclusive jurisdiction in this case through numerous rulings over a two-year
period, including its entry of the Order in which it expressly stated that it
would, if necessary, address the constitutionality of the surcharge. The circuit
court’s ordering Klugh to first exhaust administrative remedies is not
tantamount to the shirking of the circuit court’s statutory obligation to
6 adjudicate the issue. Rightly or wrongly,4 the Order merely requires that,
before the circuit court decides the constitutional issue, Klugh must first
pursue the administrative remedies provided for in the ordinance. See
Sarnoff v. Fla. Dep’t of Highway Safety & Motor Vehicles, 825 So. 2d 351,
357 (Fla. 2002).
We agree with the City that mandamus does not lie as a remedy in this
case because, rather than seeking a writ compelling the trial court to exercise
its jurisdiction, Klugh is essentially asking this Court to undo the manner in
which the trial court has exercised its jurisdiction. This is not an appropriate
use of mandamus. Mathews, 132 So. 3d at 779 (holding that the writ of
mandamus cannot be used “to review an allegedly erroneous judicial
decision”); City of Miami v. Vill. of Key Biscayne, 197 So. 3d 580, 583 (Fla.
3d DCA 2016) (“Mandamus is issued to compel a trial court to perform a
ministerial function, not a discretionary action.”).
We therefore dismiss the petition for writ of mandamus because the
remedy does not lie in this situation.
Petition for Writ of Certiorari
4 We express no opinion on whether the trial court committed legal error by requiring Klugh to exhaust the regulations’ administrative remedies.
7 In the alternative, Klugh asks this Court to issue a writ of certiorari to
quash the Order. To obtain certiorari relief, a petitioner must demonstrate
that the challenged non-final order (i) departs from the essential
requirements of law, (ii) results in material injury for the remainder of the
case, and (iii) such injury cannot be corrected on appeal. Damsky v. Univ. of
Miami, 152 So. 3d 789, 792 (Fla. 3d DCA 2014). The second two prongs of
this rule, constituting irreparable harm, are jurisdictional and must be
established first. Rodriguez v. Miami-Dade Cnty., 117 So. 3d 400, 404 (Fla.
2013). The Court does not reach the first prong, unless the jurisdictional
prongs are established. Id.
We lack certiorari jurisdiction to review the Order because any injury
sustained by the entry of the Order is remedial upon plenary appeal. See
Miramar Marina Corp. v. Garcia, 316 So. 3d 746, 748 (Fla. 3d DCA 2021)
(“Certiorari relief is generally unavailable when there is adequate redress on
plenary appeal.”). At most, the trial court’s decision to require Klugh to
exhaust administrative remedies may merely delay the resolution of Klugh’s
constitutional claim and, therefore, does not constitute irreparable harm.
Rodriguez, 117 So. 3d at 405 (“[T]he continuation of litigation and any
ensuing costs, time, and effort . . . does not constitute irreparable harm.”);
8 School Bd. of Miami-Dade Cnty. v. C.A.F., 194 So. 3d 493, 497 (Fla. 3d DCA
2016).
Because Klugh has failed to establish this Court’s certiorari jurisdiction,
we are compelled to dismiss that portion of Klugh’s petition seeking certiorari
relief. Thus, we do not address, and express no opinion as to, whether the
trial court departed from the essential requirements of law by entering the
Order.
Petition dismissed.