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Legal Tax?
By Janet Leiser
Senior Editor
Lawyer Richard A. Bokor is taking on some of the nation's largest retail food chains - from Ruth's Chris Steak House to Krispy Kreme and Starbucks Corp.
Bokor filed two lawsuits in recent months accusing more than 70 retailers in Hillsborough, Orange and Osceola counties of unlawfully collecting more than $5 million in sales tax on bottles of water.
To allow the businesses to retain the money they've wrongly charged consumers, Bokor wrote, "would be unconscionable."
Defense lawyers who represent the businesses are a who's who in the Tampa Bay area legal community - from Fowler White Boggs Banker PA's Ed Waller, who represents Outback Steakhouse Inc., to Anthony Battaglia, who represents Durango Steakhouse (see chart). Some lawyers, including Waller, represent numerous businesses being sued.
It appears some retailers are choosing to settle rather than fight what could become a class-action lawsuit in Tampa federal court.
"It's cheaper to pay the $1,000 to settle than to pay $10,000 in attorneys' fees. We're a minor player," says Battaglia, founder of Battaglia, Ross, Dicus & Wein, St. Petersburg.
At least five businesses - Walt Disney World, Host Marriott Corp., Rolling in Dough Cookie Co., Pretzel Time LLC and Toojay's Management Corp. - have been dismissed as defendants. It's unclear why.
Bokor, admitted to the Florida Bar in 1967, declined comment. "The lawsuit(s) speaks for itself," he says.
A similar legal action was brought in Texas several years ago.
An attorney in that class-action told the Houston Chronicle in 2002: "This is the kind of mass repetitive wrong the class-action vehicle is designed to correct."
Outback Steakhouse, Starbucks, Olive Garden and Boston Market were also defendants in that action.
One of the questions that will have to be answered in Tampa court, if the lawsuits aren't settled or dismissed, is whether the companies retained the taxes they collected or forwarded the money to the state.
In Tampa, the named plaintiffs are Marvin G. Forson of Harris County, Texas, and Jeannine Sala. Forson is also a plaintiff in another federal lawsuit in which Bokor accuses Hilton Hotels Corp. of breach of contract for not delivering USA Today to all of its guests.
In the local lawsuits, Bokor accuses the retailers of "misrepresentation, deception and fraud" for collecting sales tax on unflavored bottles of water when state regulations exempt the water from taxes.
Attorneys Gregory W. Herbert and Michael J. King, both of Greenberg Traurig PA, Orlando, have asked the U.S. District Court to dismiss lawsuit 05-cv-1181 through summary judgment. The firm represents Don Pablo's Operating Corp., which does business as Don Pablo's.
The motion, filed Aug. 1, states:
"Plaintiff Marvin G. Forson ran to 17 restaurants in a two-day period one week before this class action was filed, buying bottled water in support of a class action claim. The other representative visited four establishments. ... Contrary to plaintiffs' allegations, defendant, as retail businesses that sell food and beverages to the public, are required by Florida law to collect sales tax. Although bottled water itself is not generally subject to tax, bottled water is subject to tax when sold by a business selling prepared meals."
The judge had not yet ruled on the motion by the Review's deadline.
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