PETITIONER S AMENDED BRIEF ON JURISDICTION

Transcription

1 IN THE SUPREME COURT OF FLORIDA CASE NO. SC L.T. No. 3D DUCK TOURS SEAFARI, INC., Petitioner, vs. THE CITY OF KEY WEST, Respondent. ON DISCRETIONARY REVIEW OF AN OPINION OF THE THIRD DISTRICT COURT OF APPEAL PETITIONER S AMENDED BRIEF ON JURISDICTION LAW OFFICE OF MICHAEL R. BARNES 801 Whitehead Street Key West, FL KENNY, NACHWALTER, SEYMOUR, CRITCHLOW & SPECTOR, P.A. 201 S. Biscayne Blvd., Suite 1100 Miami, FL Robert C. Weinbaum, Esq. 823 Georgia Street Key West, FL HICKS & KNEALE, P.A. 799 Brickell Plaza, Suite 900 Miami, FL Tel: 305/ Fax: 305/ HICKS & KNEALE, P.A. 799 BRICKELL PLAZA, 9TH FLOOR, MIAMI, FL TEL. 305/ FAX 305/

2 TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES...ii-v STATEMENT OF THE CASE AND FACTS...1 SUMMARY OF ARGUMENT...2 ARGUMENT...4 I. THE THIRD DISTRICT'S HOLDING THAT FLORIDA DAMAGE LAW APPLIES TO A FEDERAL 1983 ACTION CONFLICTS WITH SANCHEZ...4 II. THE THIRD DISTRICT'S DECISION ERRONEOUSLY EXTENDS A DAMAGE-VALUATION PRINCIPLE ORIGINALLY SET FORTH IN JACKSONVILLE...6 III. THE THIRD DISTRICT'S HOLDING THAT A DESTROYED BUSINESS CANNOT RECOVER LOST PROFITS CONFLICTS WITH NESS, MULKEY AND MATTHEWS...9 CONCLUSION...10 CERTIFICATE OF SERVICE...11 CERTIFICATE OF COMPLIANCE...12 i

3 TABLE OF AUTHORITIES Cases PAGE Abernethy v. Fishkin, 699 So. 2d 235 (Fla. 1997)... 6 Aetna Life & Casualty Co. v. Little, 384 So. 2d 213 (Fla. 4th DCA 1980)... 7 Allied Van Lines, Inc. v. McNab, 331 So.2d 319 (Fla. 2d DCA 1976), aff'd, 351 So. 2d 344 (Fla. 1977)... 7 Arnot v. American Oil Co., 609 F.2d 873 (8th Cir. 1979), cert. den., 446 U.S. 918 (1980)... 8 ATM Express, Inc. v. Montgomery, Alabama, 516 F. Supp.2d 1242 (M.D. Ala. 2007)... 8 Banks v. Yokemick, 177 F. Supp.2d 239 (S.D. N.Y. 2001)... 5 Bogosian v. Gulf Oil Corp., 561 F.2d 434 (3d Cir. 1977), cert. den., 434 U.S (1978) Bolden v. Southeastern Pennsylvania Transportation Authority, 21 F.3d 29 (3d Cir. 1994)... 5 Caperci v. Huntoon, 397 F.2d 799 (1st Cir.), cert. den., 393 U.S. 940 (1968)... 5 Chavez v. Keat, 41 Cal. Rptr.2d 72 (Ct.App. 1995), cert. den., 516 U.S (1996)... 5 Coastal Fuels of Puerto Rico, Inc. v. Caribbean Petroleum Corp., 175 F.3d 18 (1st Cir.), cert. den., 528 U.S. 931 (1999)... 8 Cornwell v. City of Riverside, 896 F.2d 398 (9th Cir.), cert. den., 497 U.S (1990)... 5 ii

4 Division of Administration, State of Florida D.O.T. v. Ness Trailer Park, Inc., 489 So. 2d 1172 (Fla. 4th DCA), rev. den., 501 So. 2d 1281 (Fla. 1986)... 3, 9 Dobson v. Camden, 705 F.2d 759 (5th Cir. 1983)... 5 Eason v. Board of County Commissioners, 70 P.3d 600 (Colo. App. 2003)... 6 Felder v. Casey, 487 U.S. 131 (1988)... 4 Figueroa-Rodriguez v. Aquino, 863 F.2d 1037 (1st Cir. 1988)... 5 Gamble v. Florida Department of Health and Rehabilitative Services, 779 F.2d 1509 (11th Cir. 1986)... 4 Garrick v. City and County of Denver, 652 F.2d 969 (10th Cir. 1981)... 5 Gordon v. Norman, 788 F.2d 1194 (6th Cir. 1986)... 5 Graphic Products Distributors, Inc. v. Itek Corp., 717 F.2d 1560 (11th Cir. 1983)... 8 Howlett v. Rose, 496 U.S. 356 (1990)... 4, 6 Jacksonville T. & K. Ry. Co. v. Peninsular Land, Transp. & Manuf. Co., 9 So. 661 (Fla. 1891)... 3, 7 Janda v. City of Detroit, 437 N.W.2d 326 (Mich. App. 1989)... 6 Jefferson v. City of Tarrant, 522 U.S. 75 (1997)... 5 Lehrman v. Gulf Oil Corp., 500 F.2d 659 (5th Cir. 1974), cert. den., 420 U.S. 929 (1975)... 9 iii

5 Malcolm v. Marathon Oil Co., 642 F.2d 845 (5th Cir.), cert. den., 454 U.S (1981)... 8 Malloy v. Monahan, 73 F.3d 1012 (10th Cir. 1996)... 5 Matthews v. Division of Administration, State of Florida D.O.T., 324 So. 2d 664 (Fla. 4th DCA 1975)... 3, 9 McDonald Air Conditioning, Inc. v. John Brown, Inc., 285 So. 2d 697 (Fla. 4th DCA 1973)... 7 Montage Group, Ltd. v. Athle-Tech Computer Sys., 889 So.2d 180 (Fla 2d DCA 2004)... 2 Mulkey v. Division of Administration, State of Florida D.O.T., 448 So. 2d 1062 (Fla. 2d DCA 1984)... 3, 9 Murphy v. City of Flagler-Beach, 846 F.2d 1306 (11th Cir. 1988)... 5 Oladende v. City of Birmingham, 118 F. Supp.2d 1200 (N.D. Ala. 1999)... 6 Patrick v. City of Florala, 793 F. Supp. 301 (M.D. Ala. 1992)... 5 Pierce v. Ramsey Winch Co., 753 F.2d 416 (5th Cir. 1985)... 8 Polyglycoat Corp. v. Hirsch Distrib., Inc., 442 So. 2d 958 (Fla. 4th DCA 1983)... 2, 7 Protectors Insurance Service, Inc. v. United States Fidelity & Guaranty Co., 132 F.3d 612 (10th Cir. 1998)... 8 Sacks v. Sacks, 267 So. 2d 73 (Fla. 1972)... 7 Sager v. City of Woodland Park, 543 F. Supp. 282 (D. Colo. 1982)... 6 Sanchez v. Degoria, 733 So. 2d 1103 (Fla. 4th DCA 1999)... 2, 4 iv

6 Savarese v. Agriss, 883 F.2d 1194 (3d Cir. 1989)... 5 Sciambra v. Graham New Co., 841 F.2d 651 (5th Cir.), cert. den., 488 U.S. 855 (1988)... 8 Seattle Totems Hockey Club, Inc. v. National Hockey League, 783 F.2d 1347 (9th Cir.), cert. den., 479 U.S. 932 (1986)... 8 Sostchin v. Doll Enterprises, Inc., 847 So. 2d 1123 (Fla. 3d DCA, review denied, 860 So. 2d 977 (Fla. 2003)... 2 State of Alabama v. Blue Bird Body Co., Inc., 573 F.2d 309 (5th Cir. 1978)... 8 Susan Fixel, Inc. v. Rosenthal & Rosenthal, Inc., 921 So.2d 43 (Fla 3d DCA)... 2 Terrell v. Household Goods Carriers' Bureau, 494 F.2d 16 (5th Cir.), cert. den., 419 U.S. 987 (1974)... 8 Town of Lake Clarke Shores v. Page, 569 So. 2d 1256 (Fla. 1990)... 6 Villazon v. Prudential Health Care Plan, Inc., 843 So. 2d 842 (Fla. 2003)... 6 Other Authorities Anstead, Kogan, Hall & Waters, The Operation and Jurisdiction of the Supreme Court of Florida, 29 Nova L. Rev. 431 (2005)... 7 Fla. Const. Art. V, 3(b)(3)... 1 Fla. R. App. P (a)(2)(A)(iv)... 1 Joslyn, Measure of Damages for the Destruction of a Business, 48 Brook. L. Rev. 431 (1982)... 9 v

7 STATEMENT OF THE CASE AND FACTS Petitioner, DUCK TOURS SEAFARI, INC. ("Duck Tours"), pursuant to Fla. R. App. P , files this brief in support of its notice invoking the Court's discretionary "conflict" jurisdiction under Fla. Const. Art. V, 3(b)(3) & Fla. R. App. P (a)(2)(A)(iv). As set forth in the attached opinion of the Third District Court of Appeal, Duck Tours brought a claim against the Respondent, the City of Key West ( Key West ), under 42 U.S.C for damages and injunctive relief for violations of the Commerce Clause of the United States Constitution. (App.3). 1 Key West engaged in a series of discriminatory and unlawful actions, including the enforcement of municipal ordinances granting monopoly rights to an entrenched competitor, which precluded Duck Tours from operating its sightseeing business. (App.2-4). After a three week trial, the jury found that Key West violated the Commerce Clause and awarded Duck Tours $13,467, in damages on its federal 1983 claim. (App.4). On appeal, the Third District affirmed all liability findings and the award of injunctive relief 2 and attorney's fees, but remanded for a new trial on damages on the stated basis that Florida law only permitted Duck Tours to recover the market value of its 1 Petitioner also sued for violations of the Florida antitrust laws. That claim is no longer at issue. 2 In affirming the award of injunctive relief, the Third District necessarily affirmed the trial court s factual finding that, while [Petitioner] was forced to exit the market in 1996, it remains a viable business. R

8 business at the time it was destroyed by Key West's unlawful conduct. (App.5). The Third District held: The City claims that the $13.5 million jury award must be reversed because it was improperly based on a lost profit theory. We agree and reverse for a new trial on damages. According to Duck Tours' principal, Murphy, Duck Tours ceased its Key West operations in June Thereafter, the company sold its vehicles and used the proceeds to pay off its credit lines and to fund the underlying litigation. Regardless, over the City's objection, the court allowed Duck Tours to seek damages based solely on purported lost profits between 1997 and In Florida, "[i]f a business is completely destroyed, the proper total measure of damages is the market value of the business on the date of the loss," not lost profits. Sostchin v. Doll Enterprises, Inc., 847 So. 2d 1123, 1128 n.6 (Fla. 3d DCA), review denied, 860 So. 2d 977 (Fla. 2003); accord Susan Fixel, Inc. v. Rosenthal & Rosenthal, Inc., 921 So. 2d 43, (Fla. 3d DCA 2006); Montage Group, Ltd. v. Athle-Tech Computer Sys., Inc., 889 So. 2d 180, 193 (Fla. 2d DCA 2004); Polyglycoat Corp. v. Hirsch Distrib., Inc., 442 So. 2d 958, 960 (Fla. 4th DCA 1983). Only continuing businesses are entitled to recover lost profits attributable to a defendant's acts. Sostchin, 847 So. 2d at 1128 n.6. Thus, the trial court erred in allowing Duck Tours to seek lost profits as a measure of its damages. (App.5). 3 SUMMARY OF ARGUMENT This Court should invoke its jurisdiction to resolve the express and direct conflicts created by the Third District's decision. First, the decision of the Third District conflicts with Sanchez v. Degoria, 733 So. 2d 1103 (Fla. 4th DCA 1999) as to whether federal or Florida law governs the measure of damages in a 3 All emphasis has been supplied by counsel. 2

9 federal civil rights action under 42 U.S.C brought in Florida state court. The Third District reversed the jury's 1983 damage award against Key West on the basis that Florida law governed the measure of damages and barred the damages sought. This conflicts with Sanchez (and numerous decisions from other jurisdictions) squarely holding that federal and not inconsistent state law governs the determination of damages in a 1983 action. Second, this Court also has conflict jurisdiction because the Third District's decision erroneously extends and misapplies a damage principle originally set forth in Jacksonville T. & K. Ry. Co. v. Peninsular Land, Transp. & Manuf. Co., 9 So. 661 (Fla. 1891). Florida substantive law regarding the measure of damages in cases involving destroyed property/business does not apply to federal damage claims. Longstanding federal law permitting a plaintiff to recover either its lost profits or market value applied to Duck Tours' 1983 damage claim for Key West's violation of the Commerce Clause. Indeed, an award of post-trial damages (such as full market value) is prohibited as an impermissible double recovery where, as here, the plaintiff also obtains prospective relief. Third, the Third District's decision expressly and directly conflicts with Division of Administration, State of Florida D.O.T. v. Ness Trailer Park, Inc., 489 So. 2d 1172 (Fla. 4th DCA), rev. den., 501 So. 2d 1281 (Fla. 1986), Mulkey v. Division of Administration, State of Florida D.O.T., 448 So. 2d 1062 (Fla. 2d DCA 1984) and Matthews v. Division of Administration, State of Florida D.O.T., 324 So. 2d 664 (Fla. 4th DCA 1975), which all hold that, 3

10 under Florida law, loss of profits is a permissible (albeit not the sole) measure of damages when a business has been totally destroyed by the defendant's conduct. ARGUMENT I. THE THIRD DISTRICT'S HOLDING THAT FLORIDA DAMAGE LAW APPLIES TO A FEDERAL 1983 ACTION CONFLICTS WITH SANCHEZ. The Third District's holding that Florida damage principles governed Duck Tours' 1983 claim squarely conflicts with the Fourth District's holding in Sanchez that federal and not Florida law determines the damages recoverable in a 1983 action. See Sanchez, 733 So. 2d at Accordingly, Sanchez found that Florida law pertaining to punitive damages (Fla. Stat ) could not be applied to plaintiff's 1983 action. 733 So. 2d at Sanchez correctly followed the controlling decisions of the Supreme Court in Howlett v. Rose, 496 U.S. 356 (1990) and Felder v. Casey, 487 U.S. 131 (1988) holding that the application of substantive state law to 1983 actions violated the Supremacy Clause of the United States Constitution. 733 So. 2d at Sanchez is supported - and the Third District's decision fully contradicted - by numerous decisions in other jurisdictions holding that damages are a substantive element of a 1983 claim (not a "neutral procedural rule") governed by federal and not restrictive state law. See Gamble v. Florida Department of Health and Rehabilitative Services, 779 F.2d 1509, 1518 & n.11 (11th Cir. 1986)("[T]he state of Florida may not limit the damages available 4

11 under 1983 which, of course, is a matter of federal law."); Patrick v. City of Florala, 793 F. Supp. 301, 302 (M.D. Ala. 1992)("[T]he availability of damages under 1983 is a question of federal law, not state law.... Therefore, state [laws] purporting to limit the damages available...are not applicable to suits brought under 1983."); Chavez v. Keat, 41 Cal. Rptr.2d 72, (Ct.App. 1995), cert. den., 516 U.S (1996)("the types of damages available" in 1983 action is governed by federal and not state substantive law). 4 4 See also Jefferson v. City of Tarrant, 522 U.S. 75, 85 (1997)(J. Stevens, dissenting)("our decisions...make perfectly clear that the measure of damages in an action brought under 42 U.S.C is governed by federal law."); Malloy v. Monahan, 73 F.3d 1012, 1016 (10th Cir. 1996)("`Federal standards govern the determination of damages under the federal civil rights statutes.'"); Bolden v. Southeastern Pennsylvania Transportation Authority, 21 F.3d 29, (3d Cir. 1994)(rejecting application of state damage law); Cornwell v. City of Riverside, 896 F.2d 398, 399 (9th Cir.), cert. den., 497 U.S (1990)("There is no doubt that the damages awardable under 42 U.S.C are a matter of federal law. California cannot set up a policy subversive of that law."); Savarese v. Agriss, 883 F.2d 1194, 1207 (3d Cir. 1989)("`Federal standards govern the determination of damages under the federal civil rights statutes.'"); Figueroa- Rodriguez v. Aquino, 863 F.2d 1037, 1045 (1st Cir. 1988)("[T]he measure of damages in section 1983 actions is a matter of federal common law."); Murphy v. City of Flagler-Beach, 846 F.2d 1306, (11th Cir. 1988)("If a federal damages rule exists, it applies."); Gordon v. Norman, 788 F.2d 1194, 1199 (6th Cir. 1986)("Federal standards govern the determination of damages under the civil rights statutes."); Dobson v. Camden, 705 F.2d 759, (5th Cir. 1983)(federal damage law applies to 1983 action); Garrick v. City and County of Denver, 652 F.2d 969, 971 (10th Cir. 1981)("Federal standards govern the determination of damages under the federal civil rights statutes."); Caperci v. Huntoon, 397 F.2d 799, 801 (1st Cir.), cert. den., 393 U.S. 940 (1968)("The remedial purpose of the [Civil Rights] Act is better served by not permitting local variation allowing diminution of the amount of recovery."); Banks v. Yokemick, 177 F. Supp.2d 239, (S.D. 5

12 Duck Tours respectfully requests this Court to assume conflict jurisdiction and hold that federal law applied and preempted the application of Florida damage law to Duck Tours' 1983 claim. See Villazon v. Prudential Health Care Plan, Inc., 843 So. 2d 842, 843 (Fla. 2003)(assuming jurisdiction based on conflict between Third and Fourth District decisions pertaining to federal preemption of Florida state law); Abernethy v. Fishkin, 699 So. 2d 235, (Fla. 1997)(assuming conflict jurisdiction and agreeing with First District's conclusion that federal law preempted); see also Town of Lake Clarke Shores v. Page, 569 So. 2d 1256, (Fla. 1990)(accepting jurisdiction based on conflict with Howlett v. Rose as to whether 1983 action was controlled by federal law). II. THE THIRD DISTRICT'S DECISION ERRONEOUSLY EXTENDS A DAMAGE- VALUATION PRINCIPLE ORIGINALLY SET FORTH IN JACKSONVILLE. This Court may also assume conflict jurisdiction based on the Third District's erroneous extension of a principle of Florida damage law that has no application to the facts of the case. See N.Y. 2001)(rejecting application of state law as bar to jury's 1983 damage award); Oladende v. City of Birmingham, 118 F. Supp.2d 1200, 1207 (N.D. Ala. 1999)("[T]he availability of damages under 1983 is a question of federal law."); Sager v. City of Woodland Park, 543 F. Supp. 282, (D. Colo. 1982)("[T]he state law damage restriction must be discarded because their application would be inconsistent with the purposes and policies underlying 1983 and therefore, `inconsistent with federal law,' pursuant to 1988."); Eason v. Board of County Commissioners, 70 P.3d 600, 611 (Colo. App. 2003)(federal law determines damages in 1983 action); Janda v. City of Detroit, 437 N.W.2d 326, 331 (Mich. App. 1989)("Damages for deprivation of a federal right are governed by federal standards."). 6

13 Sacks v. Sacks, 267 So. 2d 73, 75 (Fla. 1972)("Where, as in the instant case, a general principle of law is applied to a case, although not applicable to the particular facts of that case, conflict is created."). 5 The principle of law applied by the Third District regarding the measure of damages in destroyed property/business cases derived from this Court's decision in Jacksonville, 9 So. at In Jacksonville, the plaintiff's property was destroyed by fire as a result of the defendant's negligent operation of its railroad. See 9 So. at 664. In upholding the jury's damage award, the Court noted that in the abstract, in the absence of malice, an inquiry as to just compensation is confined to "the value of the properties destroyed." See 9 So. at 679. The above-stated principle of Florida state law clearly did not apply to bar the recovery of lost profits in a federal 1983 action where Duck Tours' business was purportedly destroyed as a 5 See generally Anstead, Kogan, Hall & Waters, The Operation and Jurisdiction of the Supreme Court of Florida, 29 Nova L. Rev. 431, (2005)("`Erroneous extension' cases are those in which the district court may correctly state a rule of law, but then proceeds to apply the rule to circumstances for which it was not intended."). 6 See Polyglycoat, Corp. v. Hirsch Distrib., Inc., 442 So. 2d 958 (Fla. 4th DCA 1983)(relying on Aetna Life & Casualty Co. v. Little, 384 So.2d 213, 216 (Fla. 4th DCA 1980); which relied on Allied Van Lines, Inc. v. McNab, 331 So.2d 319, 320 (Fla. 2d DCA 1976), aff'd, 351 So. 2d 344 (Fla. 1977); which relied on McDonald Air Conditioning, Inc. v. John Brown, Inc., 285 So. 2d 697, 698 (Fla. 4th DCA 1973); which relied on Jacksonville). 7

14 result of Key West's discriminatory and unlawful conduct depriving Duck Tours of its constitutional rights. The Third District erroneously failed to apply longstanding federal law expressly permitting a destroyed business to recover its lost profits or its market value. See State of Alabama v. Blue Bird Body Co., Inc., 573 F.2d 309, 325 n.31 (5th Cir. 1978)("[T]he [Supreme] Court [has] explained that [i]f anticompetitive practices result in the destruction of plaintiff's business, he may recover as damages lost profits or the going concern value of the business.") Terrell v. Household Goods Carriers' Bureau, 494 F.2d 16, & n.12 (5th Cir.), cert. den., 419 U.S. 987 (1974)(affirming jury's lost profit award and rejecting argument "that the proper measure of damages should have been the `going concern' value of [plaintiff's] business at the time of its alleged destruction"); ATM Express, Inc. v. Montgomery, Alabama, 516 F. Supp.2d 1242, (M.D. Ala. 2007)(awarding lost profits in 1983 action where City's promulgation of unconstitutional business license ordinance lead to closure of Plaintiff's business). 7 7 See also Coastal Fuels of Puerto Rico, Inc. v. Caribbean Petroleum Corp., 175 F.3d 18, (1st Cir.), cert. den., 528 U.S. 931 (1999); Protectors Insurance Service, Inc. v. United States Fidelity & Guaranty Co., 132 F.3d 612, 617 (10th Cir. 1998); Sciambra v. Graham New Co., 841 F.2d 651, 657 (5th Cir.), cert. den., 488 U.S. 855 (1988); Seattle Totems Hockey Club, Inc. v. National Hockey League, 783 F.2d 1347, 1351 (9th Cir.), cert. den., 479 U.S. 932 (1986); Pierce v. Ramsey Winch Co., 753 F.2d 416, 429 n.15 (5th Cir. 1985); Graphic Products Distributors, Inc. v. Itek Corp., 717 F.2d 1560, 1579 (11th Cir. 1983); Malcolm v. Marathon Oil Co., 642 F.2d 845, 862 n.28 (5th Cir.), cert. den., 454 U.S (1981); Arnot v. American Oil Co., 609 F.2d 873, (8th Cir. 1979), cert. den., 446 U.S. 918 (1980); Bogosian 8

15 III. THE THIRD DISTRICT'S HOLDING THAT A DESTROYED BUSINESS CANNOT RECOVER LOST PROFITS CONFLICTS WITH NESS, MULKEY AND MATTHEWS. Even if Florida damage law were applicable to Duck Tours' 1983 action, however, the Third District's decision squarely conflicts with the Second and Fourth Districts' decisions in Ness, Mulkey and Matthews holding that, in Florida, lost profits are properly recoverable where a business is totally destroyed by defendant's conduct. See Ness, 489 So. 2d at 1181 ("[I]f a business is totally destroyed because of a taking, not only may there be an award for lost profits, but even for costs involved in moving, selling one's equipment, and loss of good will."); Mulkey, 448 So. 2d at 1066 ("In cases where an established business is totally destroyed by a taking of the business's adjacent property, business damages may include lost profits, costs attached to moving and selling equipment, and loss of good will."); Matthews, 324 So. 2d at 666 ("where a business is totally destroyed, [plaintiff may recover] business losses beyond profit losses [including losses] attached to moving or selling equipment and loss of goodwill"). v. Gulf Oil Corp., 561 F.2d 434, 455 (3d Cir. 1977), cert. den., 434 U.S (1978); Lehrman v. Gulf Oil Corp., 500 F.2d 659, (5th Cir. 1974), cert. den., 420 U.S. 929 (1975); see generally Joslyn, Measure of Damages for the Destruction of a Business, 48 Brook. L. Rev. 431, (1982). Market value incorporates post-trial lost profits. In cases where the plaintiff has obtained injunctive relief allowing it to resume operating, an award of full market value would amount to a double recovery. 9

16 The Third District's decision is thus fatally inconsistent with both federal and Florida cases permitting a destroyed business to recover its lost profits. There are highly compelling reasons why this Court should assume jurisdiction and resolve these conflicts. The Respondent neither moved for rehearing in the Third District nor has petitioned this Court for discretionary review and thus concedes its liability for breach of a federal statutory cause of action based on a violation of the federal constitution. The only remaining issue involves the methodology for computing Petitioner's damages. The Third District has imposed state law standards when no state claims or state interests are at issue. Under the Supremacy Clause, uniform federal law applies. Fifty States' varying damage methodologies cannot govern federal damage claims for violation of the federal constitution. The very purpose of 1983 is to provide litigants a federal remedy for the deprivation of federal rights. CONCLUSION Based on the foregoing, it is respectfully submitted that this Court has jurisdiction and that Duck Tours' petition should be granted. Respectfully submitted, Michael R. Barnes, Esq. Robert C. Weinbaum, Esq. Law Offices of Michael R. Barnes 823 Georgia Street 801 Whitehead Street Key West, FL Key West, FL HICKS & KNEALE, P.A. Scott E. Perwin, Esq. 799 Brickell Plaza Kenny, Nachwalter, P.A. Miami, FL Miami Center Tel: (305) South Biscayne Blvd. Fax: (305)

17 Miami, FL Additional Appellate Counsel for Respondent BY: /s/mark Hicks MARK HICKS Fla. Bar No.: CERTIFICATE OF SERVICE WE HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. mail this 21st day of March, 2008, to: Elliot H. Scherker, Esq., Julissa Rodriguez, Esq., Greenberg Traurig, P.A., Counsel for The City of Key West, Florida, 1221 Brickell Ave., 23rd Floor, Miami, FL 33131; Shawn D. Smith, Esq., City of Key West, Counsel for The City of Key West, Florida, P.O. Box 1409, Key West, FL 33041; Hal K. Litchford, Esq., Richard C. Swank, Esq., Litchford & Christopher, P.A., P.O. Box 1549, Orlando, FL 32802; Hugh J. Morgan, Esq., Morgan & Hendrick, 317 Whitehead Street, Key West, FL 33040; Lawrence D. Silverman, Esq., Akerman, Senterfitt & Eidson, P.A., One Southeast Third Avenue, 28th Floor, SunTrust International Center, Miami, FL BY: /s/mark Hicks MARK HICKS 11

18 CERTIFICATE OF COMPLIANCE Petitioner hereby certifies that the font requirements contained in Rule 9.210(a)(2), Fla. R. App. P., have been complied with. BY: /s/ Mark Hicks MARK HICKS g:\duck tours seafari\supct\jur brf-revised l.doc 12