2016-03-18 ds' motion for immediate hearing pursuant to 119 (1)

7/26/2019 2016-03-18 Ds' Motion for Immediate Hearing Pursuant to 119 (1)

1/85

IN THE CIRCUIT COURT OF THE 11THJUDICIAL CIRCUIT IN AND FORMIAMI-DADE COUNTY, FLORIDA

CIRCUIT CIVIL DIVISION

CASE NO.: 15-026587 CA 01 (22)

GRANT STERN,

Plaintiff,

vs.

CITY OF MIAMI, a political subdivisionof the State of Florida, and FRANCISCO

J. GARCIA, Director of Planning andZoning Department, City of Miami,

Defendants._________________________________/

DEFENDANTS MOTION FOR IMMEDIATE HEARING PURSUANT TOFLORIDA PUBLIC RECORDS LAW 119.11(1), FLORIDA STATUTES (2015)

COMES NOW, the Defendants, CITY OF MIAMI (the City) and FRANCISCO J.

GARCIA, by and through undersigned counsel, hereby files this Motion for Immediate Hearing

Pursuant to Florida Public Records Law, 119.11(1), Florida Statutes (2015), and in support

thereof, states as follows:

INTRODUCTION

This case involves the Plaintiffs two separate requests for records pertaining to the

development of a Walmart on 3055 N. Miami Avenue in the City of Miami. The Defendants

received his first request on September 3, 2015 and satisfied it by producing all responsive

records in its possession by September 26, 2015. The Defendants received his second request on

October 27, 2015 and satisfied it by producing all responsive records in its possession by January

22, 2016.


2/85

DEFENDANTS MOTION FOR IMMEDIATE HEARINGPURSUANT TO 119.11(1), FLORIDA STATUTES (2015)

CASE NO.: 15-026587 CA 01

Despite receiving responsive records from the Defendants (which the Plaintiff thanked

them for on at least two separate occasions), he filed this lawsuit. In the interest of judicial

economy, and to prevent the Plaintiff from running up excessive attorneys fees, the Defendants

seek closure as to the liability phase of this case. For the reasons explained below, the

Defendants respectfully request an immediate hearing pursuant to Section 119.11(1), Florida

Statutes (2015) to address entry of final judgment on the liability portion of this case.

FACTUAL BACKGROUND

1. On September 3, 2015, Plaintiff made a public records request to the City requesting

a Copy of the entire City of Miami Planning and Zoning Departments file for the Walmart

Project located at 3055 N. Miami Avenue aka Walmart. (See Amended Complaint attached

hereto as Exhibit A at 8).

2. That request was complied with to the Plaintiffs satisfaction on September 26, 2015.

(Exhibit B).

3. On October 27, 2015, the Plaintiff submitted a second public records request for any

and all permits issued in the last 12 months affecting the Walmart Project or any other permits

for surrounding tracts of land. (Exhibit C).

4. On or about November 24, 2015, Plaintiff filed the instant lawsuit asserting a

violation of 119.07, Florida Statutes (the Public Records Act).

5. On November 30, 2015, the Plaintiff requested an immediate hearing pursuant to

Section 119.11(1), Florida Statutes (2015). (Exhibit LL).

6. On or about December 7, 2015, Plaintiff filed an Amended Complaint again asserting

a violation of the Public Records Act.

7. The City has produced numerous documents in response to the Plaintiffs public


3/85


CASE NO.: 15-026587 CA 01

records request. The following is a chronology of the Citys response to the public records

request:

Date Description

Monday, September 14, 2015Plaintiff submitted his public records request in person atthe MRC for the Planning and Zoning file for Walmart

Friday, September 18, 2015Plaintiff arrived at the MRC and he sat at ACA Albans deskand used his computer to view the documents provided byplanning department.

Friday, September 18, 2015

ACA Alban received an email from Plaintiff correcting theaddress of the project from 3155 N. Miami Avenue to 3055 N.Miami Avenue and once again requesting that ACA Albanemail him the records he inspected at his desk. (Exhibit D).

Monday, September 21, 2015

ACA Alban emailed Plaintiff to inform him the records were

uploaded on Friday, September 18, 2015 to the NextRequestportal and provided him with the link to access the records.ACA Alban acknowledged the change in the address andinformed Plaintiff it would be corrected.Id.

Monday, September 21, 2015

ACA Alban received an email from Plaintiff acknowledging hehad received the record he viewed and that was uploaded onFriday, September 18, 2015, and identifying that he did not seeany of the City Commission, PZAB, or Court Opinions in therecord that was uploaded. (Exhibit E).

Wednesday, September 23,

2015

ACA Alban received an email from Plaintiff requesting FinalCity Commission Resolution on item PZ 10 of the meeting

heard November 20th, 2014. (Exhibit F).Wednesday, September 23,2015

ACA Alban emailed Plaintiff informing him that the certifiedcopies of the resolution are available for him to pick-up at CityHall and the cost of the certified copies. (Exhibit G).

Wednesday, September 23,2015

Olga Zamora emailed Todd Hannon informing Mr. Hannonthat Plaintiff wants the record emailed to him and that hewould like it viewable on Legistar. (Exhibit H).


Todd Hannon emailed City staff assisting with this request thatthe resolution and exhibit are both available throughLegislative Hub, that the certified copy is available for pick-up,and that he is under the impression that Carlos Campana will

be providing Mr. Stern an electronic copy of the resolution andexhibit. (Exhibit I).


ACA Alban emailed Plaintiff with an electronic copy of theresolution. (Exhibit J).


ACA Alban received an email from Plaintiff requesting a copyof the resolution with all of the dates and signatures.(Exhibit K).

Wednesday, September 23, Todd Hannon emailed City staff assisting with this request that


4/85


CASE NO.: 15-026587 CA 01

2015 the signed legislation for Version 3 is available on LegislativeHub. (Exhibit L).

Wednesday, September 23,

2015

Summary of ACA Albans telephone conversation withPlaintiff that Version 3 only has the City Attorneys signature

but that he wants the version that has the Clerks and theMayors signature. (Exhibit M).

Thursday, September 24, 2015ACA Alban emailed Plaintiff informing him that neither theclerk nor the Mayor sign the actual legislation. (Exhibit N).

Saturday, September 26, 2015ACA Alban received an email from Plaintiff personallythanking him for his assistance on the public records request inthe short period of time. (Exhibit O).

Tuesday, October 27, 2015

The City receives a second public records request fromPlaintiff for any and all permits issued in the last 12months affecting Walmarts 3055 N Miami Avenue projector any other permits for surrounding tracts of land.

(Exhibit C).

Tuesday, October 27, 2015ACA Alban forwards Plaintiffs October 27, 2015 publicrecords request to the Building Department and the Planningand Zoning Department. (Exhibit P).

Monday, November 2, 2015Email from Public Works liaison to different employees inPublic Works to search for records for the October 27, 2015PRR. (Exhibit Q).

Tuesday, November 3, 2015

Public Works liaison advised that the Design Division Streetfiles has found no records in the requested timeframe and thatthe there is an NPDES Permit #2015-98 and the plans are inthe Microfilm section of the Building Department. (Exhibit

R).

Wednesday, November 4, 2015Plaintiff emailed ACA Alban asking for the demolition permitand that he has retained counsel because it has beenone weeksince he submitted his request. (Exhibit S).

Thursday, November 5, 2015

Rafael Rodriguez, Planning, informs ACA Alban that hesearched all the properties abutting and immediately adjacentto the Walmart, that he did not find any additional Warrants orClass II permits, and providing a list of all the properties hesearched. (Exhibit T).


Plaintiff sends email requesting again the demolition permit,and any other permits issued in a 250 foot radius around the

Walmart, and advising that he has retained counsel. (ExhibitU).


ACA Alban advised Plaintiff that the City is working onexpediting the production of the demolition permit andinforming him that we maintain records by address and askinghim to confirm that he is satisfied with the list of propertiesthat Planning used in regards to his request for permits in a 250foot radius. (Exhibit V).


5/85


CASE NO.: 15-026587 CA 01

Thursday, November 5, 2015Plaintiff responds by stating And any publicly owned parcelsor land which lack addresses or folios. (Exhibit W).


ACA Alban emails Plaintiff informing him of the NPDESPermit for Walmart that is on file in the Microfilm section for

the Building Department and informing him that the BuildingDepartment is searching for and compiling the informationthey have on Microfilm for the list of properties provided.(Exhibit X).


ACA Alban receives an email from Plaintiff stating that hewants a document by 10:00 AM the following morning, askingfor the information of the official responsible for maintainingfiles on 2015 Permits, and to include a copy of the entire 2015permit log for any approved permits for the agreed list ofproperties. (Exhibit Y).

Friday, November 6, 2015

Plaintiff sends email thanking Soraya Gonzalez, Building

Department, for helping satisfy and close his request. (ExhibitZ).

Friday, November 6, 2015

Email from Soraya Gonzalez, Building, to Plaintiff reiteratingthe discussion they had regarding the issuance of permits andthat he found the permit on the Citys webpage. (ExhibitAA).

Thursday, November 19,2015

Plaintiff files suit against the Defendants.

Wednesday, November 25,2015

The City produces various emails to Plaintiff. (Exhibit BB).

Tuesday, December 1, 2015

The City produces both court decisions for Pfeffer v. City of

Miami produced to Plaintiff. (Exhibit CC).Wednesday, December 2, 2015 The Hearing Boards file is produced to Plaintiff.Id.

Thursday, December 3, 2015Electronic file titled Lydecker Diaz Response and Notificationformproduced to Plaintiff.Id.

Wednesday, December 9, 2015

Nine (9) electronic files titled Background and Introduction;COM P&Z Dept. Resp. to Appeal of Class II Special Permit

12-0054; Miami 21 Code Appendix_Vol. 2; SD 27.2 Design

Standards; Single Sheet; South Block South at Midtown with

Notes; The Shoppes at Midtown Miami . . . Special District

27.2; W. Bermello Emails; and Walmart Project in Midtown

produced to Plaintiff.Id.

Monday, December 14, 2015Two (2) electronic files titled PRR 15-165 - AdditionalDocuments - Walmart and Additional Docs 2 produced toPlaintiff.Id.

Wednesday, January 6, 2016Message to plaintiffs counsel listing four (4) records they haverequested and providing her with records from Public Works.(Exhibit DD).

Thursday, January 14, 2016Email from Public Works stating they have no records ofRight-of-Way Permits for the 2 Parcels adjacent to the


6/85


CASE NO.: 15-026587 CA 01

Walmart Parcel. (Exhibit EE).

Thursday, January 14, 2016

Email from Rafael Rodriguez (Planning) stating he has norecords relating to land covenants, unity of title agreement,easements and rights of access for 2 Parcels adjacent to the

Walmart Parcel and reaffirming that he has provided theWarrant file. (Exhibit FF).

Thursday, January 14, 2016Email from Public Works providing various records relating tothe Walmart project. (Exhibit GG).

Thursday, January 14, 2016Email from Public Works stating they had no records ofNPDES permits for the 2 Parcels adjacent to the WalmartParcel. (Exhibit HH).

Thursday, January 14, 2016

Email from Derrick Cook (Planning) providing the Planningand Zoning Projects Review Committees commentsgenerated concerning the Midtown Walmart project and notingthat these comments should have been included in the Class II

Permit file provided to the City of Miamis Law Office, andemail from Public Works Development and Roadway Planssection stating they had no records for the 2 Parcels adjacent tothe Walmart Parcel. (Exhibit FF).

Thursday, January 14, 2016Email from ACA Alban to Plaintiffs counsel providingrecords relating to Referrals To and From the City Attorney,and Parcel 1 Folio 01-3125-078-0061. (Exhibit II).

Friday, January 22, 2016

Email from Luciana Gonzalez stating that she had noresponsive documents, that written submission would be inemails, and that on the calendar there is no record of thereferenced meetings being held. (Exhibit JJ).

Monday, January 25, 2016Email from the Office of Zoning stating that it has no recordsrelating to land covenants, unity of title agreement, easementsand rights of access for 2 Parcels adjacent to the WalmartParcel. (Exhibit KK).

8. As of January 22, 2016, all responsive, non-exempt records have been produced to

Plaintiff.1

1The City withheld one (1) record totaling five (5) pages, pursuant to the exemption contained inSection 119.071(1)(d)1, Florida Statute because it reflected a mental impression, conclusion,litigation strategy, and/or legal theory and the document was prepared exclusively for civillitigation and/or an adversarial administrative proceeding, specifically, Pfeffer, et al., v. City ofMiami, et al., Case No. 3D15-2208. That document was then produced to the Plaintiff onFebruary 16, 2016 following termination of that case.


7/85


CASE NO.: 15-026587 CA 01

9. The Plaintiff objects to entry of final judgment solely on liability based on his

mistaken belief that he will be precluded from seeking appropriate relief.

10. The Plaintiff now has retained a third attorney to work on this matter.

11. On March 17, 2016, undersigned counsel spoke with counsel for the Plaintiff over the

phone and engaged in a good faith effort to resolve this issue without involving the Court.

However, the Plaintiff maintains his objections and on March 18, 2016, unilaterally scheduled

the deposition of Defendant Francisco Garcia. (Exhibit MM).

12. Based upon the foregoing, the Defendants request an immediate hearing pursuant to

Section 119.11(1) to address entry of final judgment as to the liability portion of this case.

13. The Defendants are mindful of the inconvenience imposed upon the Court in

accommodating this request and does not make this request lightly. However, the Defendants

submit that an immediate hearing would help provide the parties guidance as to how the

remainder of this case should proceed and eliminate the need to expend time and resources on

moot issues.

ARGUMENT

Section 119.11(1), Florida Statutes (2015) states that: [w]henever an action is filed to

enforce the provisions of this chapter, the court shall set an immediate hearing, giving the case

priority over other pending cases. See also Matos v. Office of the State Attorney for the

Seventeenth Judicial Circuit, 80 So. 3d 1149 (Fla. 4th DCA 2012) (Under Section 119.11(1), an

immediate hearing does not mean one scheduled within a reasonable time, but means what the

statute says: immediate).

In opposing entry of final judgment, the Plaintiffs argument that the Defendants must

have more unproduced documents is the perennial argument of litigants who abuse the public


8/85


CASE NO.: 15-026587 CA 01

records laws in order to harass governmental agencies and run up attorneys fees. Despite his

protests, the Plaintiff fails to identify any responsive documents within the Defendants

possession that have not already been produced.

Thus, the Plaintiffs speculative notion that the Defendants must have additional

unproduced records is legally insufficient to warrant keeping this case open ad infinitum. A

similar argument was advanced inDowns v. State, 740 So. 2d 506, 510 (Fla. 1999). In that case,

the defendant alleged that a law enforcement agency had withheld notes from witness interviews

despite the State and the Sheriffs office claim that all relevant records had been disclosed. The

Florida Supreme Court affirmed the denial of the defendants motion for relief because he did

not proffer or assert the existence of any evidence that such notes existed and were improperly

being withheld. Id.at 511;see also,Mendyk v. State, 707 So. 2d 320, 322 (Fla. 1997) (In the

absence of a showing that ... notes or recording may have been made [by a sheriff's department],

the trial judge did not abuse his discretion in denying Mendyk's motion....); Mills v. State, 684

So. 2d 801, 806 (Fla. 1996) (We find no abuse of discretion in the trial court's failure to order

the production of records [from a sheriff's department] when there is no demonstration that the

records exist.).

Additionally, inJohnson v. State, 904 So. 2d 400, 404 (Fla. 2005), the defendant alleged

that the tardy production of public records in early 2001 call[ed] into question the record

keeping practices of the FDLE in regards to [his] case and may indicate that more unproduced

documents exist. The Florida Supreme Court rejected this argument finding that it amounted to

no more than a fishing expedition for records. Id.;see also, Moore v. State, 820 So. 2d 199,

204 (Fla. 2002) (rejecting a public records claim because importantly, [the defendant] has made

no showing that there is any additional information that has not been disclosed).


9/85


CASE NO.: 15-026587 CA 01

Based onDownsandJohnson, the Plaintiffs failure to sufficiently identify the existence

of any undisclosed responsive records precludes his request to fish for such records.

Accordingly, his objection should be overruled, and a final judgment entered on liability.

Finally, the Plaintiff objects to entry of final judgment based on his mistaken belief that

the Defendants are choosing the relief he is entitled to. In a public records action, there are two

issues to litigate: (1) a plaintiffs entitlement to the specific public records requested, and (2) a

plaintiffs entitlement to reasonable attorneys fees. Because the Plaintiff has received all

responsive records, his relief, if any, is limited to reasonable costs and attorneys fees. Section

119.12, Florida Statutes (2015). Therefore, the Plaintiffs objections are meritless, and this

Court should enter final judgment on liability.

WHEREFORE, the Defendants respectfully requests that this Court grant their Motion

for Immediate Hearing Pursuant to Section 119.11(1), Florida Statutes (2015), and enter a Final

Judgment as to the liability phase of this case.

Respectfully submitted,

VICTORIA MNDEZ, City AttorneyDOUGLAS A. HARRISON, Assistant City AttorneyFORREST L. ANDREWS, Assistant City AttorneyAttorneys for City of Miami444 S.W. 2ndAvenue, Suite 945Miami, FL 33130-1910Tel.: (305) 416-1800Fax: (305) 416-1801Primary E-Mail: [email protected]

Secondary E-Mail: [email protected]

By: /s/ Forrest L. AndrewsForrest L. Andrews, Asst. City AttorneyFlorida Bar No. 17782
mailto:[email protected]:[email protected]:[email protected]:[email protected]


10/85


CASE NO.: 15-026587 CA 01

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing has been furnished to those

individuals on the attached Service List by e-mail generated by My Florida Courts E-Filing

Portal this 18th day of March 2016.

By: /s/ Forrest L. AndrewsForrest L. Andrews, Asst. City Attorney


11/85


CASE NO.: 15-026587 CA 01

SERVICE LIST

Jos Luis Rey, Esq.THE BUSINESS & REAL ESTATE LAW GROUP

4000 Ponce de Leon Boulevard, Suite 470Coral Gables, Florida 33146Tel.: (305) 372-8755E-Mail:[email protected] for Plaintiff Grant Stern

Faudlin Pierre, Esq.18900 NE 1stCourtMiami, FL 33179Tel.: (305) 336-9193E-Mail: [email protected]

E-Mail: [email protected] for Plaintiff Grant Stern
mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]


12/85


13/85


14/85


15/85


16/85


17/85


18/85


19/85


20/85


21/85


22/85


23/85


24/85


25/85


26/85


27/85


28/85


29/85


30/85


31/85


32/85


33/85


34/85


35/85


36/85


37/85


38/85


39/85


40/85


41/85


42/85


43/85


44/85


45/85


46/85


47/85


48/85


49/85


50/85


51/85


52/85


53/85


54/85


55/85


56/85


57/85


58/85


59/85


60/85


61/85


62/85


63/85


64/85


65/85


66/85


67/85


68/85


69/85


70/85


71/85


72/85


73/85


74/85


75/85


76/85


77/85


78/85


79/85


80/85


81/85


82/85


83/85


84/85


85/85