final until disposition of timely filed motion for rehearing.
appeal from the Circuit Court for Miami-Dade County No.
16-18748, Barbara Areces, Judge.
Victoria Mendez, City Attorney, and Kevin R. Jones and
Forrest L. Andrews, Assistant City Attorneys, for appellant.
Buschel Gibbons, P.A. and Robert C. Buschel and Eugene G.
Gibbons (Ft. Lauderdale), for appellee.
SUAREZ, LAGOA, and SCALES, JJ.
an appeal from a final order of dismissal, which upholds an
arbitration award against Appellant, the City of Miami (the
"City"), in favor of Appellee, the Fraternal Order
of Police, Lodge 20 (the "FOP"). The City
challenges the Arbitrator's authority to decide whether
the City violated a Collective Bargaining Agreement by
precluding two police officers, Lieutenant Javier Ortiz and
Sergeant Edward Lugo (the "Officers"), from working
extra duty (commonly referred to as off-duty) at the Ultra
Music Festival ("Ultra"). Because we find that the
Arbitrator did not have the authority to hear a dispute
concerning extra duty work, and that the City did not waive
the issue of whether the Arbitrator had such authority, we
hold that the trial court erred in denying the City's
motion to vacate and in confirming the award, and we reverse
and remand for further proceedings.
to 2014, Ortiz and Lugo would routinely sign up to work extra
duty at Ultra. During the March 2011 Festival, the Officers
were involved in the arrest of Jesse Campodonico, who
subsequently sued, alleging that the two Officers used
excessive force. An indemnity agreement between the City and
Ultra required Ultra to indemnify the City for any negligent
acts committed by the City's police
officers. In January 2014, Ultra's insurer
agreed to pay $400, 000.00 to settle Campodonico's claim.
and 2015, Ultra contacted the City to request that the
Officers not be assigned to work at the 2014 and 2015
festivals. The City agreed to prohibit the Officers from
working at Ultra but permitted them to work at any other
event during the larger Winter Music Festival. Following the
denial of their requests to work at Ultra, both Officers
filed grievances. The City denied the grievances, and the
parties proceeded to arbitration pursuant to a
Collective Bargaining Agreement (the
City participated in arbitration but argued that the
Arbitrator lacked the authority to consider the Officers'
grievances because working an extra duty job was not a
subject covered under the Agreement. The Arbitrator disagreed
and concluded that he had authority to review the
Officers' grievances. The arbitration award ultimately
sustained the grievances and ordered that the Officers be
compensated and allowed to pursue extra duty at future Ultra
events. Following the award, the City filed a motion to
vacate in the circuit court pursuant to section 682.13(1)(d),
Florida Statutes, claiming the Arbitrator exceeded his
authority. The court denied the City's motion and granted
the Officers' motion to confirm the arbitration award.
This appeal follows.
court's role in determining arbitrability under the
Revised Florida Arbitration Code is limited to the following
inquiries: "(1) whether a valid written agreement to
arbitrate exists; (2) whether an arbitrable issue exists; and
(3) whether the right to arbitration was waived." 3A
Fla. Jur. 2d Arbitration and Award § 54;
see also Lucky Star Horses, Inc. v. Diamond State Ins.
Co., 233 So.3d 1159, 1161 (Fla. 3d DCA 2017) (citing
Seifert v. United States Home Corp., 750 So.2d 633
(Fla. 1999)). Here, there is no dispute that a valid written
agreement to arbitrate exists. We therefore address the
remaining two prongs: whether an arbitrable issue exists and
whether the City waived its objection to the Arbitrator's
Whether an Arbitrable Issue Exists
682.13(1) sets forth the only grounds upon which an award of
an arbitrator in a statutory arbitration proceeding may be
vacated . . . ." Schnurmacher Holding, Inc. v.
Noriega, 542 So.2d 1327, 1328 (Fla. 1989); see also
LeNeve v. Via S. Florida, L.L.C., 908 So.2d 530, 534
(Fla. 4th DCA 2005) ("Where the party moving to vacate
fails to prove one of the [statutory grounds set forth in
§ 682.13(1)], 'neither a circuit court nor a
district court of appeal has the authority to overturn the
award.'" (quoting Schnurmacher, 542 So.2d
at 1328)). The City relies on section 682.13(1)(d), Florida
Statutes (2017), which provides that the court shall vacate
an arbitration award if "[a]n arbitrator exceeded the
arbitrator's powers . . . ."
is a matter of contract. An arbitrator's authority to
conduct an arbitration and the issue(s) to be arbitrated are
granted and limited by the operative document(s) in question
or by agreement of the parties themselves. The arbitrator
exceeds his or her authority by arbitrating any other issues.
In the present case, Article 6.8, step 4 of the Collective
Bargaining Agreement ...