You are on page 1of 85

IN THE CIRCUIT COURT OF THE 11TH

JUDICIAL CIRCUIT IN AND FOR
MIAMI-DADE COUNTY, FLORIDA
CIRCUIT CIVIL DIVISION
CASE NO.: 15-026587 CA 01 (22)
GRANT STERN,
Plaintiff,
vs.
CITY OF MIAMI, a political subdivision
of the State of Florida, and FRANCISCO
J. GARCIA, Director of Planning and
Zoning Department, City of Miami,
Defendants.
_________________________________/
DEFENDANTS’ MOTION FOR IMMEDIATE HEARING PURSUANT TO
FLORIDA 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 Plaintiff’s 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.

DEFENDANTS’ MOTION FOR IMMEDIATE HEARING
PURSUANT 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 attorney’s 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 Department’s 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 Plaintiff’s 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 Plaintiff’s public

DEFENDANTS’ MOTION FOR IMMEDIATE HEARING
PURSUANT TO § 119.11(1), FLORIDA STATUTES (2015)
CASE NO.: 15-026587 CA 01

records request. The following is a chronology of the City’s response to the public records
request:
Date
Monday, September 14, 2015
Friday, September 18, 2015

Friday, September 18, 2015

Monday, September 21, 2015

Monday, September 21, 2015

Wednesday,
2015

September

23,

Wednesday,
2015

September

23,

Wednesday,
2015

September

23,

Wednesday,
2015

September

23,

Wednesday,
2015

September

23,

Wednesday,
2015

September

23,

Wednesday,

September

23,

Description
Plaintiff submitted his public records request in person at
the MRC for the Planning and Zoning file for Walmart
Plaintiff arrived at the MRC and he sat at ACA Alban’s desk
and used his computer to view the documents provided by
planning department.
ACA Alban received an email from Plaintiff correcting the
address of the project from 3155 N. Miami Avenue to 3055 N.
Miami Avenue and once again requesting that ACA Alban
email him the records he inspected at his desk. (Exhibit “D”).
ACA Alban emailed Plaintiff to inform him the records were
uploaded on Friday, September 18, 2015 to the NextRequest
portal and provided him with the link to access the records.
ACA Alban acknowledged the change in the address and
informed Plaintiff it would be corrected. Id.
ACA Alban received an email from Plaintiff acknowledging he
had received the record he viewed and that was uploaded on
Friday, September 18, 2015, and identifying that he did not see
any of the City Commission, PZAB, or Court Opinions in the
record that was uploaded. (Exhibit “E”).
ACA Alban received an email from Plaintiff requesting Final
City Commission Resolution on item PZ 10 of the meeting
heard November 20th, 2014. (Exhibit “F”).
ACA Alban emailed Plaintiff informing him that the certified
copies of the resolution are available for him to pick-up at City
Hall and the cost of the certified copies. (Exhibit “G”).
Olga Zamora emailed Todd Hannon informing Mr. Hannon
that Plaintiff wants the record emailed to him and that he
would like it viewable on Legistar. (Exhibit “H”).
Todd Hannon emailed City staff assisting with this request that
the resolution and exhibit are both available through
Legislative 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 and
exhibit. (Exhibit “I”).
ACA Alban emailed Plaintiff with an electronic copy of the
resolution. (Exhibit “J”).
ACA Alban received an email from Plaintiff requesting a copy
of the resolution with “all of the dates and signatures.”
(Exhibit “K”).
Todd Hannon emailed City staff assisting with this request that

DEFENDANTS’ MOTION FOR IMMEDIATE HEARING
PURSUANT TO § 119.11(1), FLORIDA STATUTES (2015)
CASE NO.: 15-026587 CA 01

2015

the signed legislation for Version 3 is available on Legislative
Hub. (Exhibit “L”).
Summary of ACA Alban’s telephone conversation with
Wednesday, September 23, Plaintiff that Version 3 only has the City Attorney’s signature
but that he wants the version that has the Clerk’s and the
2015
Mayor’s signature. (Exhibit “M”).
ACA Alban emailed Plaintiff informing him that neither the
Thursday, September 24, 2015
clerk nor the Mayor sign the actual legislation. (Exhibit “N”).
ACA Alban received an email from Plaintiff personally
Saturday, September 26, 2015 thanking him for his assistance on the public records request in
the short period of time. (Exhibit “O”).
The City receives a second public records request from
Plaintiff for any and all permits issued in the last 12
months affecting Walmart’s 3055 N Miami Avenue project
Tuesday, October 27, 2015
or any other permits for surrounding tracts of land.
(Exhibit C).
ACA Alban forwards Plaintiff’s October 27, 2015 public
Tuesday, October 27, 2015
records request to the Building Department and the Planning
and Zoning Department. (Exhibit “P”).
Email from Public Works liaison to different employees in
Monday, November 2, 2015
Public Works to search for records for the October 27, 2015
PRR. (Exhibit “Q”).
Public Works liaison advised that the Design Division Street
files has found no records in the requested timeframe and that
the there is an NPDES Permit #2015-98 and the plans are in
Tuesday, November 3, 2015
the Microfilm section of the Building Department. (Exhibit
“R”).
Plaintiff emailed ACA Alban asking for the demolition permit
Wednesday, November 4, 2015 and that he has retained counsel because it has been one week
since he submitted his request. (Exhibit “S”).
Rafael Rodriguez, Planning, informs ACA Alban that he
searched all the properties abutting and immediately adjacent
to the Walmart, that he did not find any additional Warrants or
Thursday, November 5, 2015
Class II permits, and providing a list of all the properties he
searched. (Exhibit “T”).
Plaintiff sends email requesting again the demolition permit,
and any other permits issued in a 250 foot radius around the
Thursday, November 5, 2015
Walmart, and advising that he has retained counsel. (Exhibit
“U”).
ACA Alban advised Plaintiff that the City is working on
expediting the production of the demolition permit and
informing him that we maintain records by address and asking
Thursday, November 5, 2015
him to confirm that he is satisfied with the list of properties
that Planning used in regards to his request for permits in a 250
foot radius. (Exhibit “V”).

DEFENDANTS’ MOTION FOR IMMEDIATE HEARING
PURSUANT TO § 119.11(1), FLORIDA STATUTES (2015)
CASE NO.: 15-026587 CA 01

Plaintiff responds by stating “And any publicly owned parcels
or land which lack addresses or folios.” (Exhibit “W”).
ACA Alban emails Plaintiff informing him of the NPDES
Permit for Walmart that is on file in the Microfilm section for
the Building Department and informing him that the Building
Thursday, November 5, 2015
Department is searching for and compiling the information
they have on Microfilm for the list of properties provided.
(Exhibit “X”).
ACA Alban receives an email from Plaintiff stating that he
wants a document by 10:00 AM the following morning, asking
for the information of the official responsible for maintaining
Thursday, November 5, 2015
files on 2015 Permits, and to include a copy of the entire 2015
permit log for any approved permits for the agreed list of
properties. (Exhibit “Y”).
Plaintiff sends email thanking Soraya Gonzalez, Building
Friday, November 6, 2015
Department, for helping satisfy and close his request. (Exhibit
“Z”).
Email from Soraya Gonzalez, Building, to Plaintiff reiterating
the discussion they had regarding the issuance of permits and
Friday, November 6, 2015
that he found the permit on the City’s webpage. (Exhibit
“AA”).
Thursday, November 19, Plaintiff files suit against the Defendants.
2015
Wednesday, November 25, The City produces various emails to Plaintiff. (Exhibit “BB”).
2015
The City produces both court decisions for Pfeffer v. City of
Tuesday, December 1, 2015
Miami produced to Plaintiff. (Exhibit “CC”).
Wednesday, December 2, 2015 The Hearing Boards file is produced to Plaintiff. Id.
Electronic file titled Lydecker Diaz Response and Notification
Thursday, December 3, 2015
form produced to Plaintiff. Id.
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
Wednesday, December 9, 2015 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.
Two (2) electronic files titled PRR 15-165 - Additional
Monday, December 14, 2015
Documents - Walmart and Additional Docs 2 produced to
Plaintiff. Id.
Message to plaintiff’s counsel listing four (4) records they have
Wednesday, January 6, 2016
requested and providing her with records from Public Works.
(Exhibit “DD”).
Email from Public Works stating they have no records of
Thursday, January 14, 2016
Right-of-Way Permits for the 2 Parcels adjacent to the
Thursday, November 5, 2015

DEFENDANTS’ MOTION FOR IMMEDIATE HEARING
PURSUANT TO § 119.11(1), FLORIDA STATUTES (2015)
CASE NO.: 15-026587 CA 01

Thursday, January 14, 2016

Thursday, January 14, 2016
Thursday, January 14, 2016

Thursday, January 14, 2016

Thursday, January 14, 2016

Friday, January 22, 2016

Monday, January 25, 2016

Walmart Parcel. (Exhibit “EE”).
Email from Rafael Rodriguez (Planning) stating he has no
records 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 the
Warrant file. (Exhibit “FF”).
Email from Public Works providing various records relating to
the Walmart project. (Exhibit “GG”).
Email from Public Works stating they had no records of
NPDES permits for the 2 Parcels adjacent to the Walmart
Parcel. (Exhibit “HH”).
Email from Derrick Cook (Planning) providing the Planning
and Zoning Project’s Review Committee’s comments
generated concerning the Midtown Walmart project and noting
that these comments should have been included in the Class II
Permit file provided to the City of Miami’s Law Office, and
email from Public Works Development and Roadway Plans
section stating they had no records for the 2 Parcels adjacent to
the Walmart Parcel. (Exhibit FF).
Email from ACA Alban to Plaintiff’s counsel providing
records relating to Referrals To and From the City Attorney,
and “Parcel 1 – Folio 01-3125-078-0061. (Exhibit “II”).
Email from Luciana Gonzalez stating that she had no
responsive documents, that written submission would be in
emails, and that on the calendar there is no record of the
referenced meetings being held. (Exhibit “JJ”).
Email from the Office of Zoning stating that it has no records
relating to land covenants, unity of title agreement, easements
and rights of access for 2 Parcels adjacent to the Walmart
Parcel. (Exhibit “KK”).

8. As of January 22, 2016, all responsive, non-exempt records have been produced to
Plaintiff. 1

1

The City withheld one (1) record totaling five (5) pages, pursuant to the exemption contained in
Section 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 civil
litigation and/or an adversarial administrative proceeding, specifically, Pfeffer, et al., v. City of
Miami, et al., Case No. 3D15-2208. That document was then produced to the Plaintiff on
February 16, 2016 following termination of that case.

DEFENDANTS’ MOTION FOR IMMEDIATE HEARING
PURSUANT TO § 119.11(1), FLORIDA STATUTES (2015)
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 Plaintiff’s argument that the Defendants must
have more unproduced documents is the perennial argument of litigants who abuse the public

DEFENDANTS’ MOTION FOR IMMEDIATE HEARING
PURSUANT TO § 119.11(1), FLORIDA STATUTES (2015)
CASE NO.: 15-026587 CA 01

records laws in order to harass governmental agencies and run up attorney’s fees. Despite his
protests, the Plaintiff fails to identify any responsive documents within the Defendants’
possession that have not already been produced.
Thus, the Plaintiff’s 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 in Downs 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 Sheriff’s office claim that all relevant records had been disclosed. The
Florida Supreme Court affirmed the denial of the defendant’s 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, in Johnson 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”).

DEFENDANTS’ MOTION FOR IMMEDIATE HEARING
PURSUANT TO § 119.11(1), FLORIDA STATUTES (2015)
CASE NO.: 15-026587 CA 01

Based on Downs and Johnson, the Plaintiff’s 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 plaintiff’s entitlement to the specific public records requested, and (2) a
plaintiff’s entitlement to reasonable attorney’s fees. Because the Plaintiff has received all
responsive records, his relief, if any, is limited to reasonable costs and attorney’s fees. Section
119.12, Florida Statutes (2015). Therefore, the Plaintiff’s 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 MÉNDEZ, City Attorney
DOUGLAS A. HARRISON, Assistant City Attorney
FORREST L. ANDREWS, Assistant City Attorney
Attorneys for City of Miami
444 S.W. 2nd Avenue, Suite 945
Miami, FL 33130-1910
Tel.: (305) 416-1800
Fax: (305) 416-1801
Primary E-Mail:
flandrewsjr@miamigov.com
Secondary E-Mail: dbailey@miamigov.com

By: /s/ Forrest L. Andrews
Forrest L. Andrews, Asst. City Attorney
Florida Bar No. 17782

DEFENDANTS’ MOTION FOR IMMEDIATE HEARING
PURSUANT TO § 119.11(1), FLORIDA STATUTES (2015)
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. Andrews
Forrest L. Andrews, Asst. City Attorney

DEFENDANTS’ MOTION FOR IMMEDIATE HEARING
PURSUANT TO § 119.11(1), FLORIDA STATUTES (2015)
CASE NO.: 15-026587 CA 01

SERVICE LIST
José Luis Rey, Esq.
THE BUSINESS & REAL ESTATE LAW GROUP
4000 Ponce de Leon Boulevard, Suite 470
Coral Gables, Florida 33146
Tel.: (305) 372-8755
E-Mail: jrey@brelawyers.com
Attorneys for Plaintiff Grant Stern
Faudlin Pierre, Esq.
18900 NE 1st Court
Miami, FL 33179
Tel.: (305) 336-9193
E-Mail: fplaw08@yahoo.com
E-Mail: fparalegal@gmail.com
Attorneys for Plaintiff Grant Stern