       Third District Court of Appeal
                               State of Florida

                         Opinion filed February 13, 2019.
         Not final until disposition of timely filed motion for rehearing.
                               ________________
                               No. 3D18-1569
                         Lower Tribunal No. 17-10537
                             ________________


                       Ultra Aviation Services, Inc.,
                                    Appellant,

                                        vs.

         Lisvan L. Cruz Clemente and Miami-Dade County,
                                    Appellees.

      An Appeal from the Circuit Court for Miami-Dade County, Rodney Smith,
Judge.

      Holland & Knight LLP, and Miguel De Grandy, and Daniel P. Hanlon, for
appellant.

      Fairlaw Firm, and Brian H. Pollock; Friedman, Rodman & Frank, P.A., and
Elizabeth Estrada and Ronald D. Rodman; Beckham & Beckham, P.A. and Pamela
Beckham, for appellee Lisvan L. Cruz Clemente.

      Abigail Price-Williams, Miami-Dade County Attorney, and David M.
Murray, Cynji A. Lee, and Altanese Phenelus, Assistant County Attorneys, for
appellee Miami-Dade County.

Before EMAS, C.J., and SALTER and HENDON, JJ.

     HENDON, J.
      Ultra Aviation Services, Inc. [“Ultra”] appeals from the circuit court’s order

granting Miami-Dade County’s motion for summary judgment on Counts I and II

of the County’s third-party complaint, and denying Ultra’s motion for summary

judgment.1 We reverse.

      Ultra is a Florida corporation that provides a variety of general aeronautical

and passenger services to private air carriers operating at Miami International

Airport [“MIA”], which is property of Miami-Dade County [the “County”].

Lizvan Cruz Clemente [“Cruz”] was a part-time employee of Ultra.               In the

underlying proceedings, Cruz brought suit against Ultra alleging that Ultra had

unlawfully retaliated against him by reducing his hours and threatening him with

termination after he complained to Ultra and the County that Ultra purportedly

violated the County’s Living Wage Ordinance [“LWO”], codified in section 2-8.9

of the Miami-Dade Code of Ordinances.2 After Ultra moved to dismiss Cruz’s

1 The circuit court ultimately also entered a final judgment in favor of Miami-Dade
County. We denied Cruz’s motion to dismiss Ultra’s appeal as premature. Ultra
Aviation Servs, Inc. v. Clemente, -- So. 3d --, 43 Fla. L. Weekly D2705 (Fla. 3d
DCA Dec. 5, 2018) (“Because the trial court’s order disposes of all claims
involving
the County, we have jurisdiction to review the partial final judgment pursuant to
rule
9.110(k).”).
2  The LWO mandates that contractors and subcontractors of County service
contracts should pay their employees nothing less than minimum wage. Under the
LWO, a covered employer has two options regarding the wages it pays employees.
It can either (1) decline to provide health insurance but pay a higher wage, or (2) it

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complaint on the grounds that the LWO was preempted by section 218.077,

Florida Statutes (2015), and the LWO’s health plan requirements were no longer

valid, the County was allowed to intervene as an indispensable party to enforce the

LWO against Ultra.       The County asserted four causes of action in its third-

party complaint against Ultra; the only two counts that concern this appeal are

Counts I and II. Specifically, the County asked the trial court to declare that the

LWO was not preempted by section 218.077, and that the Florida Legislature’s

repeal of section 627.6699(12)(a) did not invalidate the health plan requirements

under the LWO. Ultra and the County filed cross-motions for summary judgment

as to these counts, and the trial court granted summary judgment to the County.

STANDARD OF REVIEW

      The trial court's final summary judgment is based on interpretation of

section 218.077 and the LWO, and thus our standard of review is de novo.

BellSouth Telecomms., Inc. v. Meeks, 863 So. 2d 287, 289 (Fla. 2003) (“Statutory

interpretation is a question of law subject to de novo review.”); Major League

Baseball v. Morsani, 790 So. 2d 1071, 1074 (Fla. 2001) (the “standard of review

governing a trial court's ruling on a motion for summary judgment posing a pure


can provide health insurance and pay a lower hourly wage, provided that the health
insurance plan meets certain statutory requirements under section 627.6699(12)(a),
Florida Statutes. According to Cruz’s complaint, Ultra began to provide its part-
time employees with health insurance that did not comply with the LWO.

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question of law is de novo.”); see also Volusia Cty. v. Aberdeen at Ormond Beach,

L.P., 760 So. 2d 126, 130 (Fla. 2000).

ANALYSIS

      Ultra is identified by the County as a General Aeronautical Services

Permittee [“GASP”]. The County provides GASPs such as Ultra with a non-

exclusive right to access MIA to conduct company business in exchange for a fee

in the amount of 7% of its monthly gross revenues derived from Ultra’s provision

of services to private airlines at MIA. Ultra’s provision of services to the private

airlines are governed by separate service contracts with those airlines, contracts to

which the County is not a party or third party beneficiary.

      Ultra’s February 2016 permit agreement with the County contains a

provision requiring Ultra to abide by the LWO. There is no dispute that Ultra is a

GASP as defined by subsection 2-8.9(E)(3) of the LWO. 3 Ultra argues, however,

3The operative provision of the County LWO for County service contracts and
County employees, section 2-8.9(E), provides the definition of a service contractor:

              (E) Service contractor is any individual, business entity,
      corporation (whether for profit or not for profit), partnership, limited
      liability company, joint venture, or similar business that is conducting
      business in Miami-Dade County or any immediately adjoining county
      and meets the following criteria:
              (1) The service contractor is paid in whole or part from one (1)
      or more of the County's general fund, capital project funds, special
      revenue funds, or any other funds either directly or indirectly, whether
      by competitive bid process, informal bids, requests for proposals,

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and we agree, that section 218.077 prohibits local governments from imposing

minimum wage requirements exceeding federal or state minimum wage laws.4 The

statute provides limited exceptions that allow a political subdivision such as the

County to impose minimum wage requirements higher than state or federal

minimum wage.5 The County asserts that Ultra falls under section 218.077(3)(a)2.,

         some form of solicitation, negotiation, or agreement, or any other
         decision to enter into a contract;
                (2) The service contractor is engaged in the business of, or part
         of, a contract to provide, a subcontractor to provide, or similarly
         situated to provide, covered services, either directly or indirectly for
         the benefit of the County; or
                (3) The service contractor is a General Aeronautical Service
         Permittee (GASP) or otherwise provides any of the Covered Services
         as defined herein at any Miami-Dade County Aviation Department
         facility including Miami International Airport pursuant to a permit,
         lease agreement or otherwise.
4Section 218.077(2) of the Florida Statutes is a preemption statute that expressly
prohibits political subdivisions of the state from establishing a minimum wage
contrary to state or federal wage requirements. That statute provides, in pertinent
part:
      (2) Except as otherwise provided in subsection (3), a political
      subdivision may not establish, mandate, or otherwise require an
      employer to pay a minimum wage, other than a state or federal
      minimum wage, to apply a state or federal minimum wage to wages
      exempt from a state or federal minimum wage, or to provide
      employment benefits not otherwise required by state or federal law.

Article VIII, section 2(b) of the Florida Constitution authorizes the Florida
Legislature to preempt municipal powers. Masone v. City of Aventura, 147 So. 3d
492, 495 (Fla. 2014) (“[M]unicipal ordinances must yield to state statutes.”).
5   Section 218.077, Fla. Stat. (2018) provides,

          (3) This section does not:

                                            5
the statutory exception for “the employees of an employer contracting to provide

goods or services for the political subdivision,” and therefore allows the County to

impose its own minimum wage requirements on Ultra via the permit agreement,

free from the general wage prohibition of section 218.077(2). We disagree.

      This Court must begin with the actual language used in the statute because

legislative intent is determined primarily from the statute's text. See Raymond

James Fin. Servs., Inc. v. Phillips, 126 So. 3d 186, 190 (Fla. 2013); see also Gomez

v. Vill. of Pinecrest, 41 So. 3d 180, 185 (Fla. 2010). Additionally, an exception to

a statutory provision is usually strictly construed against the one who attempts to

take advantage of the exception. See State v. Nourse, 340 So. 2d 966, 969 (Fla. 3d

DCA. 1976). It is clear from the record on appeal that Ultra is not a provider of

“goods or services” to the County pursuant to subsection (3) and its permit

agreement with the County.       As a permittee, Ultra is allowed to conduct its

business on County property for an access fee; Ultra provides its services not to the

County, but to private airlines via separate written private contracts with

             (a) Limit the authority of a political subdivision to establish a
      minimum wage other than a state or federal minimum wage or to
      provide employment benefits not otherwise required under state or
      federal law:
             1. For the employees of the political subdivision;
             2. For the employees of an employer contracting to provide
      goods or services for the political subdivision, or for the employees of
      a subcontractor of such an employer, under the terms of a contract
      with the political subdivision; . . . (emphasis added).


                                         6
commercial airlines, contracts to which the County is not a party.     To be sure, the

GASP permit states that “the rights granted by the Permit are exclusively limited to

the Permittee’s right and privilege to do business at the Airport.” Ultra does not

provide either goods or services to the County itself.

        In the lower court, the County argued that Ultra is in a class of contractors

that provides services to its clients at MIA, that they in essence also provide

services “for the benefit of or on behalf of” Miami-Dade County. In support of its

position, the County relies upon the definitional provision of section 218.077(1)(c).6

We acknowledge that the County benefits from Ultra’s business in a derivative or

collateral sense, in that the provision of services by Ultra to private air carriers at

MIA ensures that MIA continues to bring air traffic and related businesses to the

area. That is not, however, a direct “provision of goods and services” to the

County, and we decline to so hold.             If the legislature had intended permit

arrangements, such as the one between the County and GASPs, to be exempt from

the prohibition of section 218.077, it would have carved out that exception with




6   Section 218.077(1)(c) reads:

       (c) “Employer contracting to provide goods or services for the political
       subdivision” means a person contracting with the political subdivision to
       provide goods or services to, for the benefit of, or on behalf of, the political
       subdivision in exchange for valuable consideration, and includes a person
       leasing or subleasing real property owned by the political subdivision.

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plain language similar to that included in the County’s LWO.      See Nourse, 340

So. 2d at 969.

      Similarly, we reject the County’s contention that Ultra’s lease of property at

MIA is a sufficient contractual basis for enforcing the LWO against Ultra.7 The

lease does not fall within section 218.077’s “under the terms of a contract”

exception because that lease contract must be related to provision of goods and

services to the County. §218.077(3)(a)2., Fla. Stat. (2018). As we have previously

concluded, Ultra does not by contract or otherwise provide “goods or services” to

the County in order for that statutory exception to apply.

      Because Ultra does not fall within any of section 218.077’s provisions, we

therefore reverse the order granting final summary judgment on Counts I and II of

Miami-Dade County’s third party complaint, and remand to enter final summary

judgment for Ultra on those counts.

      Reversed and remanded.




7We find the decision in Amerijet International, Inc. v. Miami-Dade County, Fla.,
627 F. App’x 744 (11th Cir. 2015), to be inapplicable to the instant facts.

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