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vs. CASE NO. 97-2058-CIV-T-17B
PINELLAS COUNTY, a political
subdivision of the State of Florida,
NUGENT WALSH, as chairperson of the
Charitable Solicitations Board of
Pinellas County, and SHERYL LORD,
as Director of Consumer Protection
of Pinellas County,



COME NOW the Defendants, PINELLAS COUNTY, a political subdivision of the State of Florida, NUGENT WALSH, as chairperson of the Charitable Solicitations Board of Pinellas County, and SHERYL LORD, as Director of Consumer Protection of Pinellas County, by and through their undersigned attorney, and file this their Memorandum of Law in Opposition to Plaintiffs' Motion to Alter or Amend Judgment pursuant to Local Rule 3.019(b), Rules of the United States District Court for the Middle District of Florida, and request the Court to deny Plaintiffs' Motion.

Standard for Rule 59(e)

This Court has previously announced the standard for reviewing motions to alter or amend a judgment pursuant to Rule 59(e), Rules of Federal Procedure. Wendy's International, Inc. v. Nu-Cape Construction, Inc., 169 F.R.D. 680 (M.D.Fla. 1996). Specifically, the Court has determined that reconsideration of an order is justified based on one of three grounds: 1) an intervening change in controlling law; 2) the availability of new evidence; or 3) the need to correct clear error or a manifest injustice. Id. at 684, [citation omitted]. Plaintiffs attempt to apply under the third option; therefore, the critical question focuses on the meaning of "clear error" or "manifest injustice", in relation to the Court's Order.

The standard for finding a clear error or manifest injustice is a high one. This standard does not allow the relitigation of the issues argued and ruled on by the Court. Indeed, a wholesale disregard, misapplication, or failure to recognize controlling precedent is the required factual basis for this Motion. Sedrak v. Callahan, 987 F.Supp. 1063, 1069 (N.D.Ill. 1997) [citation omitted]. The mere disagreement with the Court's analysis, which Plaintiffs extensively engage in through their Motion, is not the appropriate use of this Motion. Smith v. City of Chester, 155 F.R.D. 95, 97 (E.D.PA. 1994). Therefore, Plaintiffs are required to show a misapprehension of the law on the part of the Court, not of reasoning. Braxton v. Scott, 905 F.Supp. 455, 457 (N.D.Ohio 1995).

The Court's Apprehension of Terms

This Court, in its Order, illustrated a clear understanding of the nature of the legal and factual issues involved in this case and, as such, Plaintiffs' Motion to alter or amend is inappropriately filed as to the Court's Order in this case. The Court, in its Order, clearly illustrated an understanding of the nature of the terms "professional fundraising consultant" and "professional solicitor". Indeed, as Plaintiffs' responses to Defendants' requests for production and admissions illustrate, see Exhibits "1" and "2", the Court was correct in holding that Plaintiffs cannot hold themselves exempt from the registration requirements of Pinellas County because they do not solicit based on a hyper-technical interpretation of the definition of "consultant". Court's Order at 27. As the Court ably explains, Plaintiffs receive a benefit from their "advice or counsel" to charitable organizations through the solicitous activities of their clients. Id. (explaining that where professional fundraisers purposefully contribute to the solicitation of funds by a charity, they are involved in "solicitation" and therefore subject to County regulation). See also Exhibit "1", paragraph 4, and Exhibit "2", paragraphs 2, 3, 8, and 9. Therefore, there can be no question that the Court understood the trenchant nexus between fundraising consultants and charitable solicitations that are submitted to the public bearing their handiwork.

This understanding of the nexus is critical, as it defeats Plaintiffs' claim that the Court in some way misapprehended the meaning of the term "professional fundraising consultant". Though the Court, on several occasions, uses the term "professional fundraisers", it is clear, and generally accepted, that said term refers to both fundraising consultants and professional solicitors. Therefore, because it is uncontrovertedly true that Plaintiffs receive their compensation through charitable solicitations, and Defendants have legitimate concerns that contributions of citizens be used for their charitable purpose and not for the enrichment of others, see American Heart Disease Prevention Foundation, Inc. v. Hughey, 905 F.Supp. 893 (D.Kansas 1995), generally, the Court's Order shows a completely correct understanding of the nature and distinctions, or lack thereof, between fundraising professionals regarding their connection with charitable solicitations. As such, Plaintiffs' claim is without merit to the extend that most of its Memorandum of Law challenges the Court's reasoning and not its apprehension.

Plaintiffs exert an inordinant amount of energy rearguing the issue of whether fundraising consultants "solicit" funds. For example, Plaintiffs attempt to illustrate faulty reasoning by the Court through an extensive hypothetical journey regarding its inaccurate interpretation of the breadth of Section 42-266 of the Pinellas County Code. Plaintiffs' Motion to Alter or Amend Judgment at 6. This argument does not question the apprehension of the Court; it questions the Court's reasoning,1 because the issue was directly addressed by this Court, as previously explained. As such, this argument, and others like it, are inappropriate and the subject Motion is without merit.

As Applied Challenges

As to claims that Plaintiffs did not receive due process because they did not have the opportunity to present their arguments at trial, this Court is certainly aware of the fact that both parties represented to the Court that there were no issues of material fact at issue in the case and, thus, cross motions for summary judgment would adequately resolve this matter. Plaintiffs specifically announced their agreement to this position at the preliminary pretrial conference, April 14, 1998. Therefore, it is inappropriate for Plaintiffs to now argue that their disagreement with the opinion of the Court denied them their day in court. As applied to the Rule 59(e) standard, this argument of Plaintiffs is without merit as it only serves to challenge the reasoning of the Court.2


For these reasons, Defendants respectfully request that this Court deny Plaintiffs' Rule 59(e) Motion to Alter or Amend.

Respectfully submitted,

Assistant County Attorney
315 Court Street
Clearwater, FL 33756
(727) 464-3354
FL Bar #0102229
Attorney for Defendants


I HEREBY CERTIFY that a copy of the foregoing has been furnished by U. S. Mail to ALISON M. STEELE, ESQ., Rahdert, Anderson, McGowan & Steele, P.A., 535 Central Avenue, St. Petersburg, FL 33701, CLIFFORD PERLMAN, ESQ., Perlman & Perlman, 220 Fifth Avenue, New York, NY 10001, SETH PERLMAN, ESQ., Perlman & Perlman, 220 Fifth Avenue, New York, NY 10001, and GEOFFREY W. PETERS, ESQ., Geoffrey W. Peters, P.C., 9024 Trailridge Court, Vienna, VA 22182, this 8th day of December, 1998.

Assistant County Attorney

1Plaintiffs' argument regarding this use of hypotheticals is inaccurate because the definition of professional fundraising consultant specifically provides that it applies only to those "retained by a charitable organization or sponsor for a fixed or variable fee or percentage fee to plan, advise, consult or prepare material for solicitation of contributions." Section 42-266, Pinellas County Code.
2The cases cited by Plaintiffs in support of their argument on this issue involve criminal statutes and an accused's right thereunder. As the Court explained, the County's only enforcement ability is through an injunctive procedure, Court's Order at 28, and therefore, Plaintiffs' argument is not applicable in the instant situation. Furthermore, where the issues involve consideration of public policy and the need for judicial consistency, the Court may appropriately classify an arguable question of fact as legal in nature. Moore's Federal Practice, 3d, Section 56.11[7][a]. As such, it would be within the Court's legal authority to deny Plaintiffs' as applied challenge in toto.

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