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City of Miami v. Fraternal Order of Police Lodge #20

Florida Court of Appeals, Third District

June 6, 2018

City of Miami, Appellant,
Fraternal Order of Police Lodge #20, etc., Appellee.

         Not final until disposition of timely filed motion for rehearing.

          An 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.

          Before SUAREZ, LAGOA, and SCALES, JJ.

          SUAREZ, J.

         This is 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.


         Prior 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.[1] In January 2014, Ultra's insurer agreed to pay $400, 000.00 to settle Campodonico's claim.

         In 2014 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[2] proceeded to arbitration pursuant to a Collective Bargaining Agreement (the "Agreement").[3]

         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.


         A trial 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 authority.

         1. Whether an Arbitrable Issue Exists

         "Section 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 . . . ."

         Arbitration 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 ...

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