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Case Shows How Changes to Florida Summary Judgment Standard Is Affecting Litigation

Changes to the summary judgment standard in Florida are set for May 1. But litigants are already seeing the effect.

Read the original article by the Daily Business Review Here

by Michael A. Mora

The spotlight came through litigation in which a startup business faced a company controlled by a well-connected businessman, which was rep-resented by the former mayor of Fort Lauderdale, in litigation involving its expansion to a second location in Davie and won. Thomas P. Angelo, the man-aging shareholder at Angelo & Banta in Fort Lauderdale who represented the startup business, Billy Jacks Shack Davie LLC, said the damages and attorney fees will be substantial for his startup clients. The start-up is controlled by its owners John Hart and Todd Zimmer.

“The takeaway is that the little guy doesn’t always lose,” Angelo said. “There is justice out there for people that don’t have the same resources as the very wealthy who think they can unilaterally do things with-out any consequences.” The dispute in the case in-volved a breach of a commercial lease between the startup with Southwest Broward Theaters Holdings Ltd. in November 2017. The holding company is owned and controlled by prominent businessman Joseph Amaturo. Amaturo owns sever-al businesses, including multiple radio stations and is a major philanthropist, with donations to entities like the Broward Amphitheatre, which honored him and his wife with the naming of the Amaturo Theater.

Amaturo, through his holding company, funded the plaintiffs’ first restaurant in Lauderdale-By-The-Sea and then entered into the commercial lease and agreement to build out the second location at issue, in Davie. But, Angelo said, Southwest Broward backed out of the deal and violated the contract with Billy Jacks, leading to the com-plaint filed in May 2019.Now, Broward Circuit Judge Keathan Frink has granted partial summary judgment in favor of Billy Jacks. Fink will deter-mine the amount of damages and attorney fees in the second part of the proceeding. John P. Seiler, a partner at Seiler, Zaden, Rimes & Wahlbrink in Fort Lauderdale who represented Southwest Broward in the litigation, declined to comment. While Seiler was previously the mayor of Fort Lauderdale for nearly a decade, Angelo claimed that the biggest challenge was not opposing his adversary nor the prominent businessman to prevail for his client. Instead, Angelo pointed to the phasing out of the summary judgment standard in the State of Florida on May 1.

The Florida Supreme Court closed out the year 2020 by replacing the current summary judgment standard with the federal standard. Florida’s highest court stated the switch would “improve the fairness and efficiency of Florida’s civil justice system, to relieve the parties from the expense and burdens of meritless litigation,” according to the ruling. And following the deposition of Amaturo’s son, Lawrence, in which the son “admitted” that the plaintiff was “never given notice” as stipulated in the con-tract, Angelo moved for summary judgment. He was surprised with the ruling by Frink. Under the current summary judgment standard, the slightest doubt could result in the defeat of a summary judgment motion. “Summary judgment often-times is a difficult standard,” Angelo said. “But I was pleasantly surprised that the judge granted the motion for partial summary judgment.”

Impact of Reduction in Florida Sales Tax on Commercial Real Property Leases For 2019

Florida imposes a sales tax on rents under real property leases. In 2018, the general 6 percent state-level tax was reduced to 5.8 percent, but the Florida legislature enacted a law to further reduce the rate to 5.7 percent for occupancy periods beginning on or after January 1, 2019. It should be noted that these laws did not reduce the local option surtax that many Florida counties impose, so property owners need to adjust their expected lease payment revenues in the coming year.

While the new 5.7 percent tax rate is effective as of January 1, 2019, this reduced rate is applicable only as to the lease period to which the rent being paid relates. If a landlord receives rent payments in 2019 for December 2018 occupancy, the prior 5.8 percent rate would still apply (plus any applicable local option surtax).

It should also be noted that real property leases are taxed not only on base rent, but on any additional rent or other consideration paid by a tenant as a condition of occupancy. This means tax is also due on a tenant’s share of common-area maintenance charges, property taxes, and possibly other charges under the lease.

Landlords must collect, in addition to the 5.7 percent state tax, the local-option surtax imposed by many Florida counties, which can range between 0.5 percent and 2.5 percent. The new tax laws referenced above did not reduce these local option surtax rates, and in fact, some counties have increased their tax rates.

For example, Broward County implemented a tax rate of 1 percent, so that as of January 1, 2019, lease payments in Broward County will be taxed at a rate of 6.7 percent, being the Broward County local surtax of 1 percent, plus the state’s 5.7 percent tax. Below is a chart reflecting applicable changes in the surtax structure with respect to real property leases in various Florida counties:

Landlords and management companies sending out invoices for rental periods commencing on or after January 1, 2019 should change their invoicing to account for the current 0.1 percent reduction in the state tax rate, while also accounting for the changes (if any) to the local option tax rates.

This Alert was prepared by James W. Carpenter, Esq. Questions about this information can be directed to:

• Thomas P. Angelo, Esq. | 954-766-9930 | tpa@angelolaw.com
• Gavin S. Banta, Esq. | 954-766-9930 | gsb@angelolaw.com
• James W. Carpenter, Esq. | 954-766-9930 | jwc@angelolaw.com

This alert is for general information purposes. The alert does not constitute or contain legal advice. This alert should not be considered as a legal opinion by the author or by the firm of Angelo & Banta, P.A., or as a substitute for legal counsel.

Florida Reduces Sales Tax on Commercial Rent

Effective January 1, 2018, the sales tax on the total rent or license fee charged under a commercial lease of real property (i.e., business rent tax) has been reduced from 6 percent to 5.8 percent.

Florida is the only state in the United States to impose such a tax.  Thus, many critics feel that the tax has discouraged Florida’s economic growth, including Governor Rick Scott, who has led the repeal movement.

It should be noted that Florida’s general revenue stream is very heavily reliant on sales tax in general.  For the 2016-17 fiscal years, the sales tax on commercial rent accounted for 78.5 percent of all such revenue. As a result, prior efforts to phase out the tax have stalled.  This year, however, the Legislature in HB-7109, took a baby step forward by reducing the rate from 6 percent to 5.8 percent, or a 3.33 percent reduction.

Section 212.031(1) has been amended as follows effective January 1, 2018:

(c) For the exercise of such privilege, a tax is levied at the rate of 5.8 in an amount equal to 6 percent of and on the total rent or license fee charged for such real property by the person charging or collecting the rental or license fee. The total rent or license fee charged for such real property shall include payments for the granting of a privilege to use or occupy real property for any purpose and shall include base rent, percentage rents, or similar charges. Such charges shall be included in the total rent or license fee subject to tax under this section whether or not they can be attributed to the ability of the lessor’s or licensor’s property as used or operated to attract customers. Payments for intrinsically valuable personal property such as franchises, trademarks, service marks, logos, or patents are not subject to tax under this section. In the case of a contractual arrangement that provides for both payments taxable as total rent or license fee and payments not subject to tax, the tax shall be based on a reasonable allocation of such payments and shall not apply to that portion which is for the nontaxable payments.

(d) When the rental or license fee of any such real property is paid by way of property, goods, wares, merchandise, services, or other thing of value, the tax shall be at the rate of 5.8 6 percent of the value of the property, goods, wares, merchandise, services, or other thing of value.

(e) The tax rate in effect at the time that the tenant or person, occupies, uses, or is entitled to occupy or use the real property is the tax rate applicable to the transaction taxable under this section, regardless of when a rent or license fee payment is due or paid. The applicable tax rate may not be avoided by delaying or accelerating rent or license fee payments.

Landlords and management companies sending out invoices for rental periods commencing on or after Jan. 1, 2018, should revise their invoice software to account for the 0.2 percent reduction in the state tax rate.

Bahia Mar mortgage boosted to $135M by Florida Community Bank

Redevelopment plans for Bahia Mar in Fort Lauderdale total nearly 2 million square feet.

The hotel owner is completing renovations and has a pending redevelopment plan.

Florida Community Bank boosted the mortgage of the Bahia Mar resort and marina in Fort Lauderdale to $135 million as the property undergoes renovations.

The property is the home of the annual Fort Lauderdale International Boat Show.

Rahn Bahia Mar LLC, an affiliate of Miami-based Tate Capital, had its mortgage increased by $50 million to reach $135 million by the Weston-based bank (NYSE: FCB), which assumed the loan from another bank.

Attorney Thomas Angelo of Angelo & Banta represented the borrowers in the deal. The hotel is on a 38.65-acre site at 801 Seabreeze Blvd that is leased from the city.

The 296-room hotel is currently undergoing a renovation designed by Adache Group Architects. Jimmy Tate, the head of Tate Capital, said the $7.5 million in renovations will include new interiors, furniture and art for the rooms, redesigned hallways, and new floors. He said it’s a very nautical look.

“It really looks like a brand new hotel,” Tate said.

Tate’s company has a pending application with the city to redevelop Bahia Mar. It calls for 651 residential units in seven towers of up to 11 stories tall, 18,815 square feet of retail/commercial space, 26,123 square feet of restaurants, a 6,000-square-foot fishing village, multiple pools, a modernized marina, and pedestrian paths that would allow the public to walk around the waterway and marina. He would also replace the existing hotel new a new 256-room hotel.

Tate noted that the plan falls within the property’s current development rights.

Brian Bandell
Senior Reporter
South Florida Business Journal

Lauderdale Beach Acre Sells for $32 Million – Daily Business Review

April 28, 2017

Carla Vianna
Daily Business Review

Two real estate investors and restaurateurs have purchased a retail acre on Fort Lauderdale beach for $32 million, marking one of the priciest purchases for the beachfront strip.

Aiton Yaari and Lior Avidor pocketed two buildings on the corner of Fort Lauderdale Beach Boulevard and Poinsettia Street north of Las Olas Boulevard in a deal that closed Friday, according to Broward County property records.

Yaari and Avidor, who were represented by attorney Thomas Angelo, purchased three parcels at 210-213 Fort Lauderdale Beach Blvd.,which includes two retail properties totaling 18,535 square feet and an adjacent parking lot. The duo already own the property next door at 225 S. Fort Lauderdale Blvd., which houses the Tsukuro restaurant, one of a number of eateries they operate, Angelo said.

The seller was Miniaci Enterprises, a company run by brothers Albert and Dominick Miniaci of the Miniaci family, which has owned landmark bars and entertainment venues in Fort Lauderdale for decades.

The beachfront property purchased by TRD of Fort Lauderdale LLC houses the Cafe Del Mar, Margarita Cantina and The Drunken Taco.

Angelo, a managing shareholder with Angelo & Banta, worked with colleague Gavin Banta to close the deal.

The transaction was part of a 1031 exchange. Yaari and Avidor just sold a property down the street for $18.7 million.

But that wasn’t the original plan, Angelo said. His clients went to contract with Miniaci Enterprises about a year ago. Their original plan was to refinance the retail asset they owned about a half-mile away and use those funds to close this deal.

Angelo helped the investors land $10.5 million in refinancing from Florida Community Bank over a month ago for a retail building at 435 S. Fort Lauderdale Beach Blvd., home to the multi-tenant Aquatic Center Plaza.

“Out of the blue, an unsolicited offer came in from [a] New York buyer,” he said.

The buyer was a company tied to developer Harry Gross, who built the tallest hotel in North America, the Marriott Courtyard and Residence Inn in Manhattan. Gross stepped forward with a multimillion-dollar offer for the 20,585-square-foot, multi-tenant retail building that Yaari and Avidor had just refinanced.

Angelo quickly orchestrated a 1031 exchange deal, which allows investors to defer taxes if they sell a property and quickly reinvest the gain in a similar income-producing asset. The New York buyer sealed the deal Tuesday in a sign-and-close transaction, meaning the contract wasn’t signed until closing, Angelo said.

The 25,594-square-foot lot is approved for a 213-room hotel, according to The Real Deal, which first reported the deal Wednesday.

“We effected a 1031 exchange with a deal that wasn’t even signed and done,” he said. “It was quite challenging to do that. It was quite an undertaking.”

The yearlong deal ended with a 2½-week crunch time at closing.

The deal is reminiscent of a transaction Angelo worked on over a decade ago, he said, pointing to a $54.3 million purchase by Israeli-based El-Ad Group on the same block.

Contact Carla Vianna at cvianna@alm.com. On Twitter: @byCarlaVianna

Fort Lauderdale beach retail strip sells for $32M – South Florida Business Journal

Apr 28, 2017, 12:40pm EDT

By: Brian Bandell
Senior Reporter
South Florida Business Journal

After cashing out of one Fort Lauderdale beach property for $18.7 million, Aiton Yaari and Lior Avidor bought another down the block for $32 million.
Attorney Thomas P. Angelo, CEO of Fort Lauderdale-based Angelo & Banta P.A., said he represented Yaari and Avidor in both deals, as he helped them reinvest part of the sales proceeds from the first deal into the second property in a 1031 tax exchange. Angelo also helped them secure financing.

In the new deal, Miniaci Enterprises, managed by Dominick Miniaci, sold the 18,535-square-foot retail building at 201-213 Fort Lauderdale Beach Blvd. for $32 million to TRD of Fort Lauderdale LLC, managed by Yaari and Avidor, Angelo said. Miami-based City National Bank of Florida provided a $17.88 million mortgage to the buyer.
The property was built on the 1-acre site directly across from the beach in the 1950s and 1960s, and owned by Miniaci for over 40 years.
The price equated to $1,726 per square foot of retail.

Angelo said Yaari and Avidor operate several restaurants are in the space, including Rock Bar and Spazio.
He noted that more developers have been picking up sites on Fort Lauderdale beach. In the other deal Angelo worked on this week, Yaari and Avidor sold the property at 419 S. Fort Lauderdale Beach Blvd. for $18.7 million to New York-based G Holdings, which has developed many hotels.

“It looks like Fort Lauderdale beach will finally have some serious upscale development,” Angelo said.

Angelo & Banta Closes $180,000,000.00 Refinancing of The EDITION Hotel

The law firm of Angelo & Banta, P.A. is pleased to announce that it recently assisted its client, Black Marble E 2013, LLC, in the $180,000,000.00 refinancing of The Miami Beach EDITION hotel in Miami Beach, Florida. The EDITION is an elegant design hotel located at 2901 Collins Avenue, Miami Beach, Florida and has 294 individually designed guest rooms and suites, including 28 private bungalows.

The Lender was the National Bank of Abu Dhabi PJSC.

Multistate Deal Required Military-Style Precision

TOP DEALMAKERS 2016 MULTIFAMILY—WINNER

Angelo & Banta, P.A.

In the end, coordinating the closing of a record-setting, multistate, 4,200-unit rental home deal took the precision of a military campaign—at a lightning pace.
The $402 million transaction was identified as the “industry’s largest bulk purchase” in 2015.

“I led the negotiations on the contract and Gavin [Banta] helped me put the team together, in terms of the implementation of and the coordination with the various local counsel,” Angelo said. “It was quite a challenge, but it was fun. A lot of fun.”
Ultimately, he said, “it’s all about organization.”

Read more: Here

Dine and dance during Museum of Discovery and Science gala

Later in the evening, the MODS crowd will dance the night away and compete for some luxurious live auction items including a week at a luxury home in the exclusive Four Seasons Resort in Costa Rica, an 11-day five-star tour of Italy and a week in the Keys.

“The 2015 ‘Marvels of MODS’ gala is one of Fort Lauderdale’s largest and most anticipated events of the year, raising funds to support STEM programs, dynamic exhibits and opportunities for MODS to inspire the next generation of visionaries,” said Kim Cavendish, president and CEO.

This year’s gala is co-chaired by Tom Angelo of Angelo and Banta, Jason Williams of Wells Fargo, Russell Klenet of Russ Klenet & Associates, and Broward County Commissioner Stacy Ritter.
The presenting sponsor for “Marvels at MODS” is Mercedes-Benz Fort Lauderdale.

Individual tickets are $600. Tables start at $6,000.

All proceeds will benefit operations and programs at Museum of Discovery and Science. The mission of the museum is to provide experiential pathways to lifelong learning in science for children and adults through exhibits, programs and films. Founded in 1976 as The Discovery Center, the nonprofit facility serves approximately 450,000 visitors annually.

For more information, call Robyn Harper at 954-713-0906 or email rharper@mods.net

New York investor snags $402M rental home portfolio with C. Fla. homes

New York investor snags $402M rental home portfolio with C. Fla. homes
Anjali Fluker, Senior Staff Writer Orlando Business Journal

A New York private investment firm spent $402 million to buy a portfolio of 4,200 rental homes in seven states, which includes 138 homes in Central Florida.

CSMA BLT LLC, an entity related to Cerberus Capital Management LP, on Aug. 31 bought the portfolio of homes in Florida, Illinois, Indiana, Mississippi, Missouri, Kansas and Tennessee from an entity related to Stamford, Conn.-based Building Land & Technology, said a news release.

Of the 387 homes in Florida that are part of the portfolio, 120 are in Orange County, seven are in Lake County, seven are in Volusia County and four are in Seminole County, the release said.

The then-pending sale was first reported in June by Bloomberg Business, which called it the industry’s largest bulk purchase. The purchase also will make Cerberus Capital Management one of the top 10 owners of U.S. houses, Bloomberg Business reported.

Fort Lauderdale-based law firm Angelo & Banta PA was lead counsel on the sale.

Private equity firms, hedge funds and foreign investors have been responsible for several bulk home sales in the region, helping boost the residential real estate market’s prices. The area’s housing industry is considered a bellwether for overall economic health.

Read more at: http://www.bizjournals.com/orlando