The Third District Court of Appeal ruled Miami-Dade County can’t enforce its living wage ordinance on Ultra Aviation Services Inc., a contractor at Miami International Airport, in response to a challenge from a part-time employee.
The living wage was established in 1999 to help citizens stay above the poverty line, according to the county’s website, which says all aviation service contractors are covered.
But the court found that while Ultra leases space and conducts business at the county-owned airport, it doesn’t directly serve Miami-Dade. Instead, it serves private airlines through separate, noncounty contracts, meaning it’s exempt from the ordinance.
The question arose when employee Lisvan L. Cruz Clemente brought a lawsuit against Ultra in May 2017, alleging it reduced his hours and threatened to fire him after he complained about his wages. Cruz’s suit claimed the airport’s pay and health insurance plan for part-time workers was out of step with Miami-Dade County’s ordinance.
Under the LWO, employers can either pay a higher wage without providing health insurance, or pay a lower wage and use the difference to provide coverage.
In 2017, Miami’s living wage was $15.52 without health insurance and $12.63 with coverage, according to the complaint. Ultra paid Cruz Clemente the lower amount, but he claimed health insurance doesn’t meet Affordable Car Act standards.
Ultra moved to dismiss the complaint, claiming it complies with the ordinance even though it’s preempted by Florida statute section 218.077, which dictates that municipalities can’t impose their own minimum wages or benefits.
Miami-Dade County intervened with a third-party complaint against Ultra, asking the court to find that its ordinance isn’t preempted and that its health care requirements are invalid.
Miami-Dade Circuit Judge Rodney Smith ruled the ordinance was constitutional and applied to Ultra, which appealed. And though the Third DCA didn’t dispute the ordinance’s validity, but ruled it doesn’t apply to Ultra.
The opinion issued Wednesday analyzed the language in the statute considered its exceptions, including Miami-Dade County and vendors contracted to provide goods and services to, for or on behalf of the county, but found Ultra didn’t fit.
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Judge Eric Hendon wrote the opinion, backed by Chief Judge Kevin Emas and Judge Vance E. Salter.
Counsel to Ultra, Miguel De Grandy of Holland & Knight in Miami, agreed with the decision.
“If the facts are that our contract is with Avianca and we’re providing services to that airline, [the county] is not in privity of that contract, not a third-party beneficiary to that contract and, as a matter of fact, the permit says it’s limited to the exclusive privilege of being able to solicit that business from other parties,” De Gandy said.
De Grandy pointed out that Ultra continues to meet the ordinance’s standards, even though it doesn’t have to.
“It’s unfortunate that we had to litigate that issue when the facts show that we were voluntarily compliant,” De Grandy said.
Cruz Clemente’s attorney, Brian H. Pollock of the Fairlaw Firm in Kendall, said he was disappointed with the decision and expects his client and Miami-Dade County will ask the court for a rehearing en banc.
“Our concern, like the concern of Dade County, is for the thousands of workers at the airport who are relying on the living wage ordinance to provide them with a wage that they can live on,” Pollock said. “The court’s ruling effectively strips away that protection for so many hard-working men and women.”
Pollock has also launched a putative class action seeking damages on behalf of 600 Ultra employees — a case he fears may now be in jeopardy following this ruling. That lawsuit alleges Ultra’s health insurance for part-time employees doesn’t comply with the living wage.
Pollock said he worries that the ruling will allow entities with a permit to operate at the airport to pay “any wage they would like, as long as it meets the Florida minimum wage” — which was raised to $8.46 per hour in January.
Miami-Dade County Attorney Abigail Price-Williams and assistant attorneys David M. Murray, Cynji A. Lee and Altanese Phenelus declined to comment on the case.