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Filing # 77208475 E-Filed 08/29/2018 04:46:49 PM

IN THE CIRCUIT COURT FOR THE ELEVENTH JUDICIAL CIRCUIT
IN AND FOR MIAMI-DADE COUNTY

WILLIAM DOUGLAS MUIR, an individual.
Plaintiff, 1 CASE NO. 18-23224 CA 30

v.

CITY OF MIAMI, a Florida Municipal Corporation,
FRANCIS SUAREZ, Mayor, City of Miami,
EMILIO T. GONZALEZ, City Manager, City of Miami,
VICTORIA MENDEZ, City Attorney, City of Miami,
KEON HARDEMON, Chairman, City of Miami Commission,
KEN RUSSELL, Vice Chairman, City of Miami Commission,
JOE CARROLLO, Commissioner, City of Miami Commission,
WILFREDO GORT, Commissioner, City of Miami Commission,
MANOLO REYES, Commissioner, City of Miami Commission
CHRISTINA WHITE, Supervisor of Elections, Miami-Dade County
MIAMI FREEDOM PARK, LLC, Intervenor

Defendants. 2
____________________________________________________ /

1
“The Plaintiff or petitioner, formerly called the relator, is the person seeking to have the duty
performed.” “The defendant is the person…or public officer or governmental entity sought to be
coerced by the duty.” “The designation of the party seeking relief in the caption and
commencement was formerly “The State of Florida ex rel. A.B.” This form was proper when the
right to be enforced was a public one, as distinct from a private right. Now the parties are the same
as in other actions.” Trawick, Henry P. Trawick’s Florida Practice and Procedure § 36:4, 62
(Thomson Reuters, 2018). Fla. R. Civ. P. 1.630(b)(3)( “The caption shall show the action filed in
the name of the plaintiff in all cases and not on the relation of the state.”)
2
Where several distinct ministerial duties are to be performed by different persons or boards as a
means to an end, so as to preserve the integrity and unity of the performance of the entire duty, all
those persons may be joined in one writ of mandamus when no provisions or fundamental
principles of law are violated. 35 Fla. Jur. Mandamus and Prohibition § 120 (2012), at 478, n. 2
(citing State ex rel. Clendinen v. Dekle, 173 So. 2d 452 (quoting State ex rel. Knott v. Haskell,
Fla. 1916, 72 Fla. 176, 72 So. 651.) In an action for a writ of mandamus against a board of officials,
all members of a board are necessary parties. 35 Fla. Jur. Mandamus and Prohibition, (2012) §
125, at 480, n. 1 (citing State ex rel. City of St. Petersburg v. Pinellas County, 119 Fla. 539, 161
So. 66 (1935); State ex rel. Davis v. Lee, 116 Fla. 726, 156 So. 744 (1934); State ex rel. Crane v.
City of Lakeland, 116 Fla. 713, 157 So. 926 (1934).) “All of the members of a public board or
commission should be made defendants unless it is a body corporate.” Seminole County v.State,
93 Fla. 929, 112 So. 616; Id. “If several persons must perform the duty sought to be enforced, all
of them must be joined as defendants.” State ex. Rel. Simmons v. Harris, 119 Fla. 375, 161 So.
374 (1934).
MOTION FOR REHEARING

PLAINTIFF, WILLIAM DOUGLAS MUIR, on behalf of himself and the public, 3 a

resident of the city of Miami, moves the court for the reasons designated herein to vacate or set

aside its order of dismissal with prejudice entered herein on August 15, 2018, and to award Plaintiff

rehearing, reinstating this action, or to amend, alter or modify its conclusions of law and the

judgment based thereon, or to reopen said judgment and findings to amend, alter, or modify its

findings, and in the alternative requests leave to amend the alternative writ or his amended

complaint/alternative writ (“Amended complaint” or “Am. Compl.”) and as grounds therefore

states as follows:

1. On August 14, 2018, prior to a responsive pleading filed by defendants and prior to the

scheduling of a hearing on defendants’ motion to dismiss, Plaintiff timely and properly filed an

amended complaint “Amended complaint/Alternative writ of mandamus.” Fla. R. Civ. P. 1.190.

(“A party may amend a pleading once as a matter of course at any time before a responsive

pleading is served”). Rule 1.630(e) provides that a defendant "shall respond to writ as

provided in rule 1.140.” A motion to dismiss as provided in rule 1.140 filed by the defendants

does not fall under the category of “responsive pleading” for purposes of rule allowing a party to

amend a pleading once as a matter of course at any time before a responsive pleading is served,

and therefore does not preclude a party amending the complaint subsequent to the filing of such a

motion. West’s F.S.A. RCP Rule 1.190(a); Shapiro v. Tulin, 60 So. 3d 1166 (Fla. 4th DCA).

3
Prior to the amendment to Fla. R. Civ. P. 1.630, Plaintiff, or petitioner would be the relator
bringing the action in the name of and on behalf of the public or state. The caption is changed, but
the fundamental principles of law and distinction between standing to enforce a public right versus
private right. 35 Fla. Jur. 2d. MANDAMUS AND PROHIBITION, § 120 (2012), at 475
Because it is not even a pleading, a motion to dismiss is not a “responsive pleading,” and filing

such a motion thus does not deprive plaintiff of right to amend a complaint without prior leave of

court. West’s F.SA. RCP Rule 1.100(a), 1.190(a); Boca Burger, Inc. v. Forum, 912 So.2d 561,

566-567 (Fla. 2005)(“we hold that a plaintiff has the absolute right to amend a complaint once

as a matter of course before a responsive pleading is served, and a trial court has no

discretion to deny such an amendment;…and that an appellate court may, in appropriate

circumstances, impose sanctions on an appellee or its lawyer for its frivolous defense of a

patently erroneous trial court order.”) (emphasis added.); Ruble v. Rinker Materials Corp.,

116 So. 3d 378, 380 (Fla. 2013); Dieudonne v. Publix Super Markets, Inc., 994 So. 2d 505, 506

(Fla. 3d DCA 2008). An order to show cause does not constitute a responsive pleading as

contemplated by the Florida Rules of Civil Procedure and does not preclude amendment to the

petition. Lovette v. McNeill, 8 So. 3d 411 (Fla. 1st DCA 2009).

2. “Inasmuch as mandamus is a civil proceeding at law (see § 4 infra), the rules relating to

the amendment of pleadings in other proceedings are applicable.” 35 Fla. Jur. 2d. MANDAMUS

AND PROHIBITION, §§§ 4, 130, 139 (2012), at 484 (citing City of Bradenton v. State ex rel.

Perry, 118 Fla. 838, 160 So. 506, 100 A.L.R. 400 (1935).

3. On August 15, 2018 at a status conference, the Court sua sponte considered without notice

by the parties, defendants’ motion to dismiss the initial complaint incorporated by reference in the

alternative writ of mandamus.

4. The initial complaint and alternative writ of mandamus had been superseded by the

amended complaint/alternative writ of mandamus. (The Court: “I’m asking you what it is because

I haven’t had an opportunity to read it, and its’ [sic] 50 pages. I just got it around five minutes

ago.”) Transcript August 15, 2018 hearing page 3, line 25-page 4 line 1.
5. The court’s ruling and judgment is erroneous as it improperly references the initial

complaint as grounds for dismissing the amended complaint/alternative writ of mandamus, and its

dismissal of the amended complaint with prejudice is an abuse of discretion as set forth herein.

Oceanside Plaza Condominium Ass’n, Inc. v. Foam King Industries, Inc., infra; Sparber, Shevin,

Shapo & Heilbronner, P.A. v. Kirsch, 516 So. 2d 91 (Fla. 3d DCA 1987)(error to dismiss with

prejudice where it was not demonstrated that no cause of action could be alleged.); Boca Burger,

Inc. v. Forum, 912 So.2d 561, 566-567 (Fla. 2005)(discussed supra.)

6. In determining the merits of a motion to dismiss, the trial court must limit itself to the four

corners of the complaint, including any attached or incorporated exhibits, assuming the allegations

to be true and construing all reasonable inferences therefrom in favor of the non-moving party.

Oceanside Plaza Condominium Ass’n, Inc. v. Foam King Industries, Inc., 206 So. 3d 785 (Fla. 3d

DCA 2016). (“Filing of an amended complaint constitutes an abandonment of the original

complaint, including any attached or incorporated exhibits, assuming the allegations to be true and

construing all reasonable inferences therefrom in favor of the non-moving party…“Only the

second amended complaint was properly before the court, having superseded the first”…"We find

that the trial court erred in dismissing the Second Amended Complaint, which was timely and

properly filed, because the trial court improperly considered the dismissed First Amended

Complaint as grounds to dismiss the Second Amended Complaint. Long-standing Florida case law

makes clear that the filing of an amended complaint constitutes “an abandonment of the original

complaint which was superseded, [and it] ceased to be part of the record and could no longer be

viewed as a pleading.”)

7. Rather than file a response to Plaintiff’s timely and properly filed amended complaint, the

City of Miami, individual defendants represented by the City Attorney, and Miami Freedom Park,
LLC elected to waive its’ defense to the amended complaint or otherwise respond to the amended

complaint.

8. Courts which have considered Fla. R Civ. P. 1.190(a) in its present form have concluded

that a response to a prior pleading does not carry over to an amended pleading. § 1.190:22

Responding to Amended Pleadings—Prior Responses DO NOT Carry Over, 4 Fla. Prac., Civil

Procedure § 1.190:22; Geer v. Jacobsen, 880 So. 2d 717, 720 (Fla. 2nd DCA 2004) (“Almengual's

previously filed notice and motion did not carry over as a response to the amended complaint, and

Almengual did not otherwise respond to the amended complaint. See Fla. R. Civ. P. 1.190

committee notes, 1980 amend. (noting that a response is required to an amended

pleading); Abrams v. Paul, 453 So.2d 826 (Fla. 1st DCA 1984) (stating that an answer to the

original complaint did not carry over as a response to the amended complaint)”. Accordingly, the

dismissal with prejudice should be vacated and an order of default, or such other relief as the court

deems just and proper should be entered against defendants. 4

9. Here, the Court improperly considered the superseded initial complaint and response

thereto, which does not carry over to the amended complaint as grounds for dismissal with

prejudice. (Plaintiff: “there’s no motion pending before the Court, your honor”, pursuant

1.190”[sic]). August 15, 2018 Transcript p. 9, lines 24-25.

10. There can be no showing that Plaintiff’s privilege to amend has been abused when plaintiff

amended the complaint as of absolute right and as a matter of course prior to a hearing on a motion

to dismiss the original pleading, nor do exceptional circumstances warrant such dismissal with

prejudice.

4
The defense of lack of personal jurisdiction as to Christina White, Miami-Dade Supervisor of
elections is personal to the additional defendant, and cannot be raised by objection by the
attorney for the City of Miami, whose clients have been served as provided by law.
11. As a general matter, when a motion to dismiss is granted for failure to state a cause of

action, the trial court is required to exercise the utmost liberality by giving the pleading party every

opportunity to correct the defects in the challenged pleading, by dismissing without prejudice and

with leave to amend. Fla. R. Civ. P. 1.190(a),(e). It has been stated that “[a]ny doubt” regarding

whether to grant a motion for leave to amend should be resolved in favor of the amendment. Santos

v. Flores, 116 So. 3d 518, 520 (Fla. 3d DCA 2013); Overnight Success Const., Inc. v. Pavarini

Const. Co., Inc., 955 So. 2d 658, 659 (Fla. 3d DCA 2007). The language of Rule 1.190, that leave

to amend be “freely” given “when justice so requires” has been recognized as a statement of the

state’s strong public policy to apply liberality in pleadings amendments to enable cases to be

resolved on their merits.

THE COURT’s JUDGMENT THAT PLAINTIFF LACKS STANDING IS CONTRARY
TO LAW

12. The finding and judgment that Plaintiff “lacks standing” and that the “complaint must be

dismissed for lack standing” [sic] is contrary to law, and what the evidence would show, and

precludes the court’s dismissal with prejudice of Plaintiff’s amended complaint without reaching

the merits of this action. On November 8, 2016, nearly 100,000 voters of the City of Miami voted

to enact an amendment to Section 52 of the Charter of the City of Miami (“Charter”), which

provides:

Remedies for violations. Residents of the City shall have standing to bring legal
actions to enforce the City Charter, the Citizens' Bill of Rights, and the Miami-
Dade County Citizens' Bill of Rights as applied to the City. Such actions shall be
filed in Miami-Dade County Circuit Court pursuant to its general equity jurisdiction
and, if successful, the plaintiff shall be entitled to recover costs, but not attorney's
fees, as fixed by the court. Any public official, or employee who is found by the
court to have willfully violated this section shall forthwith forfeit his or her office
or employment.
Sec. 52. - Citizens' Bill of Rights.
13. The public was overwhelmingly in favor of this amendment, by a nearly 5:1 margin. See

certified results of the election, and enacting resolution, Exhibit A attached. Despite the City of

Miami or the City Attorney (on behalf of the individual defendants) not raising lack of standing as

a defense in its’ motions to dismiss 5, or there being any response by any defendant properly before

the court at the August 15, 2018 status conference, the court’s order concludes: “Plaintiff lacks

standing to challenge the City’s resolution submitting the charter amendment to the electorate. To

demonstrate standing to seek a writ of mandamus challenging government action, plaintiff must

demonstrate a special injury different than the injury suffered by the general public. 6” overlooking

Plaintiff’s statutory right pursuant to Section 52 supra, Herbits v. City of Miami, 207 So.3d 274

(Fla. 3d DCA 2016), citing Fla. Wildlife Fed'n v. State Dep't of Envtl. Regulation, 390 So. 2d 64

(Fla. 1980)(“private citizens could institute suit under Environmental Protection Act without

showing special injury required by traditional rule of standing”) and a line of cases that defendants

do not address in their motions to dismiss the initial complaint decided by the Florida Supreme

Court distinguishing between the judicial standing requirement for a relator or plaintiff seeking to

vindicate primarily a “public right” as the Plaintiff does, versus a “private right”. e.g. Pleus v.

5
For example: the Court considers the allegation that the Charter amendment violated the single-
subject rule contained in the first amended complaint as grounds for dismissal “with prejudice”
contrary to law. Oceanside Plaza Condominium Ass’n, Inc. v. Foam King Industries, Inc., 206
So. 3d 785 (Fla. 3d DCA 2016).

6
The trial court cites Centrust Sav. Bank v. City of Miami, 491 So. 2d 657, 577 (Fla. 3d DCA
1986); School Board of Volusia City v. Clayton, 681 So. 2d 1066, 1068 (Fla. 1997); North
Broward Hospital District v. Fornes, 476 So. 2d 154, 155 (Fla. 1985) and Kneapler v. City of
Miami, 173 So. 2d 1002, 1004 and would deny standing to citizens and residents bringing a
constitutional challenge to the enactment of a prohibited special law, contrary to the application
by the Florida Supreme Court of the special injury standing requirement in the cases cited to
challenges to the taxing and spending power of the legislature absent a constitutional challenge.
See Herbits, infra.
Crist, 14 So. 3d 941 (Fla. 2009)(“Petitioner, as a citizen and taxpayer, has a clear legal right to

request that the Governor carry out that duty. See Chiles v. Phelps, 714 So.2d 453, 456

(Fla.1998).”) (citing Martinez v. Martinez, State ex rel. Pooser v. Wester). Contrary to the Court’s

conclusion, the law of standing in the State of Florida is where the question is one of public right

and the object of the mandamus is to procure the enforcement of a public duty, the relator need not

show that the relator has any legal or special interest in the result, it being sufficient that the relator

is interested as a citizen in having the law executed and the duty in question enforced. Compare

35 Fla. Jur. 2d. MANDAMUS AND PROHIBITION, § 120 (2012), at 475(citing State ex rel.

Village of North Palm Beach v. Cochran, 112 So. 2d 1 (Fla. 1959) 7, Florida Indus. Com’n v. State

ex rel. Orange State Oil Co., 155 Fla. 772, 21 So. 2d 599, 1945)) with 35 Fla. Jur. 2d.

MANDAMUS AND PROHIBITION, § 119 (2012), at 473.

14. Contrary to the Court’s conclusion, In Herbits, Id. decided before the enactment of Section

52 of the City Charter the court held as follows:

"[T]he Florida Supreme Court has repeatedly held that citizens and taxpayers lack
standing to challenge a governmental action unless they demonstrate either a
special injury, different from the injuries to other citizens and taxpayers, or unless
the claim is based on the violation of a provision of the Constitution that governs
the taxing and spending powers." Solares v. City of Miami, 166 So. 3d 887, 888
(Fla. 3d DCA 2015) (citing Sch. Bd. of Volusia Cty. v. Clayton, 691 So. 2d 1066,

7
State ex rel. Village of North Palm Beach v. Cochran, 112 So. 2d 1 (Fla. 1959)([T]he decided
weight and preponderance of the authorities establish the following to be the correct rule as to who
are proper relators in mandamus proceedings: 'When the remedy is resorted to for the purpose of
enforcing a private right, the person interested in having the right enforced must be the relator. The
relator (in such case) is considered the real party, and his right to the relief must clearly appear;
but where the object is the enforcement of a public right the people are regarded as the real party,
and the relator need not show that he has any legal interest in the result. It is enough that he is
interested as a citizen in having the laws executed, and the duty in question enforced.' 14 Amer. &
Eng.Enc.Law, 218 and authorities there cited. The above has been adopted by this court as being
the correct rule in McConihe v. State, 17 Fla. 238, and in State v. Crawford, 28 Fla. 441, 10 So.
118 [14 L.R.A. 253].' It seems clear to us that the act of the respondent so affects the relator
municipality and all the citizens thereof as to characterize it as an act of public nature.) (Emphasis
added.)
1068 (Fla. 1997); N. Broward Hosp. Dist. v. Fornes, 476 So. 2d 154, 155 (Fla.
1985); Henry L. Doherty & Co. v. Joachim, 200 So. 238, 240 (Fla. 1941); Rickman
v. Whitehurst, 74 So. 205, 207 (Fla. 1917)).

There is a further exception, however, when legislation provides a cause of
action and standing to private citizens. Fla. Wildlife Fed'n v. State Dep't of
Envtl. Regulation, 390 So. 2d 64 (Fla. 1980). As we explain below in section
III.D. of this opinion (addressing Count IV of the complaint), that exception
applies to the unique rights conferred through the Miami-Dade County Home
Rule Charter and its Citizens' Bill of Rights. As a duly enacted source of rights
and standing, the Citizens' Bill of Rights was neither raised nor considered in
the taxpayer standing decisions of the Florida Supreme Court cited above, or
in our decisions in Solares and Kneapler v. City of Miami, 173 So. 3d 1002
(Fla. 3d DCA 2015). (Emphasis added).

15. Had the City of Miami Charter granting residents of the City of Miami standing to enforce

the Charter been enacted at the time, the Court may have decided Count III of the Herbits

declaratory action differently, as the Court distinguishes Solares and Kneapler on the grounds of

the unique rights conferred through the Citizen’s Bill of Rights. “Although we find that the

allegations establish a prima facie case for violation of section 29-A by the City and Flagstone,

and although we analyze the issue separately as an element of Count IV, we affirm the dismissal

of Count III with prejudice based on a lack of special injury, nexus, and standing when the violation

of section 29-A is asserted as a separate and independent claim.” Herbits v. City of Miami, 207

So.3d 274 (Fla. 3d DCA 2016)).

16. The right to “prior public notice” and the right “to a prior opportunity given to the public

to compete for said real property or interest” found in Laws Of Florida, Chapter 10847, § 29-A are

expressly “public rights.” The trial court does not have the liberty to engraft the heightened

standing requirement (for enforcement of a private right in the absence of a constitutional

challenge) found in the line of cases cited to support the trial court’s final judgment, especially

when the cases relied upon by the Court in its conclusions of law were decided before the
enactment of the Miami-Dade County Citizen’s Bill of Rights and Section 52 of the City Charter,

supra. See Herbits, discussed infra.

17. The Court erred in finding contrary to the allegations in Plaintiff’s Am. Complaint that

Plaintiff failed “to allege or demonstrate that he has suffered any injury, let alone an injury that is

different from the public.” Contra this finding see ¶¶ 13, 14, 30 as alleged and re-alleged in ¶¶ 18,

31, 52, and 68 Amended Complaint.

18. The court errs by concluding that Plaintiff, as a member of the affected public, as a matter

of law has no standing to enforce a public right or must allege an injury that is different from the

public when seeking to vindicate primarily a public right. As for the purported requirement of an

injury that is different from the public see Chiles v. Phelps, infra.; and the authorities in ¶¶ 13, 14

of this Motion for rehearing, supra.; City of Miami v. Benson, 63 So.2d 916, 923 (Fla.1953) cited

in Florida House of Representatives v. Crist, 999 So.2d 601 (Fla., 2008) ("[A]n agreement that is

violative of a provision of a constitution or a valid statute, or an agreement which cannot be

performed without violating such a constitutional or statutory provision, is illegal and void.").

19. Contrary to the Court’s conclusion “To demonstrate standing to seek a writ of mandamus

challenging government action, plaintiff must demonstrate a special injury than the injury suffered

by the general public”, the Supreme Court of Florida has held as follows: “To be entitled to

mandamus relief, “the petitioner must have a clear legal right to the requested relief, the respondent

must have an indisputable legal duty to perform the requested action, and the petitioner must have

no other adequate remedy available.” Huffman v. State, 813 So.2d 10, 11 (Fla.2000).” Pleus v.

Crist, 14 So. 3d 941, 945 (Fla. 2009).

20. “[W]hen the duty is derived from statute it is not necessary that the statute expressly

provide for enforcement by mandamus for the writ to issue if the elements of the actions are
present.” Angela Flowers, MANDAMUS, in FLORIDA APPELLATE PRACTICE, § 12.15,

(2017).

Mandamus is a different animal altogether. Its purpose is not to review a lower
court ruling for prejudicial error; rather, it is meant to enforce the respondent's
unqualified obligation to perform a clear legal duty. State ex rel. Buckwalter v.
City of Lakeland, 112 Fla. 200, 150 So. 508 (1933)…it is unnecessary for the
petitioner to suffer prejudice as a result of the respondent's dereliction. All
that must be shown is that (1) the respondent is duty-bound to act under the law,
and (2) the respondent has failed or refused to do so. Pleus v. Crist, 14 So.3d
941 (Fla.2009). A third and final element is that the petitioner must have no
adequate legal remedy for the respondent's failure to carry out its
duty. Id. ; Sturdivant v. Blanchard, 422 So.2d 1028 (Fla. 1st DCA 1982).

Bollea v. Gawker, 170 So.3d 125 (Fla. 2d DCA 2015)(emphasis added).

21. In Plaintiff’s action, Plaintiff seeks to vindicate primarily a public right, as a member of

the affected public which is a right also personal to him, including the right to prior public notice

and a prior opportunity to compete for the sale or lease of City-owned real property, i.e. Am.

Compl. ¶¶ 10, 11, 32, 35, 36, 37, 38, 40, etc., and that any sale or lease be awarded to the highest

responsible bidder, and is further authorized to bring suit by the enactment of Section 52 of the

Charter, Fla. Wildlife Fed'n v. State Dep't of Envtl. Regulation, 390 So. 2d 64 (Fla. 1980).

22. The standing of a particular party to an action is a question of fact for the trial court. 10

Fla. Jur. 2d, CONSTITUTIONAL LAW, (2012), § 90, at 625, citing Miller v. Publicker Industries,

Inc., 457 So. 2d 1374 (Fla. 1984) contra Alachua County v. Scharps, 855 So.2d 195 (Fla. 1st DCA

2003)(cited in Herbits infra.) But see Hoffman v. Jones, 280 So.2d 431, 440 (Fla.1973) (“[A]

District Court of Appeal does not have the authority to overrule a decision of the Supreme Court

of Florida.”). The court erred in finding that Plaintiff lacks standing without evidentiary hearing,

as Plaintiff’s allegations as a matter of law were legally sufficient to establish standing, and this

necessarily factual determination as appears on the judgment made at a status conference in which

no evidence was presented is contrary to law. “The standing of a particular plaintiff is a question
of fact for the trial court. Lykes Brothers, Inc. v. Board of Commissioners of Everglades Drainage

District, 41 So.2d 898 (Fla.1949).” Miller v. Publicker Indus., Inc., 457 So. 2d 1374, 1375 (Fla.

1984).

23. The court errs in considering Miami Freedom Park’s Motion to Dismiss the initial

complaint as grounds to dismiss Plaintiff’s amended complaint without Miami Freedom Park

responding to the amended complaint or pleading sufficient facts to justify the intervention as full

party defendant or holding an evidentiary hearing on Miami Freedom Park’s standing to intervene

in the case. The unsworn statements of counsel in Miami Freedom Park, LLC’s motion to

intervene are not evidence. The issues raised in this case could be adjudicated whether or not

Miami Freedom Park, LLC was a party to the action. As in Let Miami Beach Decide v. City of

Miami Beach, 120 So. 3d 1282 (Fla. 3d DCA 2013), developer Miami Freedom Park, LLC is not

an indispensable party to the case.

24. Whether Plaintiff has standing under an express provision of a home rule Charter has

already been litigated and lost by the City of Miami and another developer, with the Third District

Court of Appeal rejecting the City’s argument and determining that the City of Miami’s argument

that Plaintiff lacked standing under the Miami-Dade County Home Rule Charter “fails as well”.

Herbits v. City of Miami, 207 So.3d 274 (Fla. 3d DCA 2016)

The City and Flagstone have raised two arguments in opposition to the
application of the provisions of the Citizens' Bill of Rights. First, they argue
that section (C), "Remedies for Violations," provides a remedy, but does not
expressly confer standing in the manner that the environmental statute, section
403.412(2)(a), Florida Statutes (1977), did in Florida Wildlife Federation, 390
So.2d at 64. We reject that argument; the environmental statute authorized the
Department of Legal Affairs, any political subdivision or municipality of the
state, "or a citizen of the state," to maintain an action for injunctive relief. Id. at
65 n. 1. Similarly, the Citizens' Bill of Rights remedy provision expressly
applies to "a citizen."
Second, the City and Flagstone rely on section (D) of the Citizens' Bill of
Rights, requiring our construction of these rights to be "supplementary to and
not in conflict with the general laws of Florida." The City and Flagstone argue
that the "general laws of Florida" as used in that provision refer not only to
legislative enactments, but also to the judicial decisions limiting taxpayer and
citizen standing as described above in section III. According to this argument,
the "general laws" would thus include the "special injury or constitutional
challenge" requirements detailed in Solares, and the cases relied upon by that
opinion.
This argument fails as well. Section 11(5) of the Florida Constitution of 1885
and section 6(e) of Article VIII of the Florida Constitution of 1968, establishing
the framework for the Home Rule Charter for Miami–Dade County, refer to
"the power of the Legislature to enact general laws which shall relate to Dade
County." Contextually, section (D) of the Citizens' Bill of Rights in the Home
Rule Charter does not expand the definition of "general laws" to engraft judicial
limitations on taxpayer standing into the specific remedies provided to each
citizen in section (C).

25. The Court’s conclusion that “mandamus is not available to compel the City to comply with

Section 29-A of the Charter because Miami-Dade’s Home Rule Amendment and Charter provide

for the exclusive requirements for submitting a charter amendment to the electorate” is contrary to

law, as:

a. There is an existing duty to the public and Plaintiff to provide public notice and the prior

opportunity for the public to compete, and the proposed amendment provides no notice that

it is intended to apply retroactively, and

b. the proposed amendment would disturb this existing duty and would destroy Plaintiff

and the public’s present right to public notice and prior opportunity compete for the sale or

lease of public land, destroying the existing public right of the public to contract with the

City on competitive terms in contravention of public policy, while favoring and granting

privilege to a single entity. 8

8
See 43 Fla. Jur. 2d Public Works and Contracts, 2012, § 15 at 359; Sec. 29-A. “…no right, title,
or interest shall vest in the transferee of such property unless the sale, conveyance, or disposition
is made to the highest responsible bidder, as is determined by the city commission”.
“The Court will not divine a legislative intent that a new law be applied to disturb existing

contractual rights or duties when there is no express indication to that effect; instead the statute

will be presumed to apply prospectively.” Hassen v. State Farm Mut. Auto. Ins. Co., 674 So. 2d

106 (Fla. 1996). Where it is intended that a statute should have retrospective operation, the title

must convey appropriate notice of this aspect. Chiapetta v. Jordan, 153 Fla. 788, 16 So. 2d 641

(1943). Therefore, contrary to the Court’s conclusion of law, Plaintiff has standing to enforce

those existing rights and compel the municipal defendants’ existing duties as alleged in the

amended complaint, notwithstanding any speculation regarding prospective changes to the

existing Chapter 10847, Section 29-B.

THE COURT’S JUDGMENT FAILS TO SET FORTH THE FOLLOWING LISTED
MATTERS

26. Contrary to the allegations in Plaintiff’s complaint, the judgment concludes, “Plaintiff has

not demonstrated that a constitutional or statutory right has been violated”. As alleged, in ¶¶ 20,

21, and re-alleged in ¶¶ 31, 52, and 68 the proposed amendment to Laws Of Florida, Chapter

10847, Section 29, City of Miami Charter as alleged is void, a clear violation of Fla. Const., art.

III, § 11(a)(10,12); and inter alia:

a. the Plaintiff, a registered voter and the public were not given prior public notice

and a prior opportunity given to the public to compete for the sale or lease of public land

(in violation of the rights of the public and plaintiff to prior public notice as defined in

Laws Of Florida, Chapter 10847, Section 29) and in violation of the right to be given a

prior opportunity to compete for the sale or lease of public land under Section 29-A(b), and

b. the Plaintiff’s right to have their Commission carry out their duties in a

constitutional manner and in a manner consistent with the Charter was violated by the
Commission’s proposed amendment to Laws Of Florida, Chapter 10847, § 29-B prohibited

by Fla. Const. Art. III., § 11(a)(10,12).

27. Because it is unconstitutional, a referendum on whether to enact the proposed amendment

to Laws Of Florida, Chapter 10847, Section 29-B, also known as the Charter of the City of Miami

Section 29-B is a futile act and has no effect. An amendment to the Laws Of Florida, Chapter

10847, Section 29-B, must respect the constitutional prohibition found in the Florida Constitution

Article III, Section 11(a)(10,12). See Charter preamble (emphasis in original):

LAWS OF FLORIDA, CHAPTER 10847
An act to amend and reenact the Charter of the City of Miami, in the County of
Dade, and to fix the boundaries and provide for the government, powers and
privileges of said city and means for exercising the same; and to authorize the
imposition of penalties for the violation of ordinances; and to ratify certain acts
and proceedings of the commission and of the officers of the city.
Be It Enacted by the Legislature of the State of Florida:

Sec. 1. Creation and existence et. seq

Sec. 29-A. Contracts for, unified development projects, and real property;
safeguards. et. seq
Sec. 29-B. City-owned property sale or lease—Generally. et. seq

Sec. 52. - Citizens' Bill of Rights. et. seq

Local governments have not been given omnipotence by home rule provisions or by Article

VIII, Section 2 of the 1968 Florida Constitution. City of Miami Beach v. Fleetwood Hotel, 261

So, 2d 801, 804 (Fla. 1972). Here the commission purports to amend a Law of Florida to effect a

special law prohibited by the Florida Constitution. See Board of County Com’rs of Dade County

v. Wilson, 386 So. 2d 556 (Fla. 1980). (“Dade County home rule charter has been given

constitutional approval, but only to extent that it is consistent with section of State Constitution

authorizing such charter, and if any provision of charter, or any action taken pursuant to charter,
contravenes limitations or prescriptions of such section, it is necessarily unconstitutional and void.

Wests F.S.A. Const. Art. 8, §§ 6, 6(e)”)

“The Dade County Charter has been given constitutional approval, but only to the
extent that it is consistent with the former article VIII, Section 11 (now in article
VIII, section 6). If any provision of the Dade County Charter, or any action taken
pursuant to the Charter, contravenes the limitations or prescriptions of article VIII,
section 6 of the 1968 Constitution, it is necessarily unconstitutional and void. See
State ex rel. Dade County v. Nuzum, 372 So. 2d 44 (Fla. 1979); Gray v. Golden,
89 So. 2d 785 (Fla. 1956).”

Board of County Com’rs of Dade County v. Wilson.

See also Shands Teaching Hosp. & Clinics, Inc. v. Mercury Ins. Co. of Fla., 97 So.3d 204

(Fla. 2012)(holding that chapter 88-539, Laws of Florida (“Alachua County Hospital Lien Law”)

was unconstitutional under article III, section 11(a)(9), of the Florida Constitution and has no

effect.) If the opponent of a proposed amendment to a municipal charter in good faith questions

the constitutionality of the ordinance in its entirety and on its face, the court may properly consider

that question in advance of an election concerning its approval. Citizens for Responsible Growth

v. City of St. Pete Beach, 940 So. 2d 1144 (Fla. 2d DCA 2006).

28. The trial Court’s judgment fails to set forth its conclusion of law with respect to Plaintiff’s

constitutional challenge to the proposed amendment to Laws Of Florida, Chapter 10847, § 29-B,

and its failure to enforce this constitutional prohibition is contrary to law, in express conflict with

Fla. Const. Art. III, § 11(a)(10,12) and the Supreme Court’s decision in Lawnwood Medical

Center, Inc. v. Seeger, 990 So. 2d 503 (Fla. 2008). See also Venice HMA, LLC v. Sarasota Cnty.,

228 So. 3d 776 (Fla. 2017). 9 Issuance of the writ would effect the will of the framers in prohibiting

9
“The State contends that these actions are unauthorized and the petitioners' attorneys lack standing
to maintain them. The State further contends that the facts asserted by the petitioners relate to
speculative factual circumstances which may never occur, that no named client has been adversely
impacted by the DPRA, and that no basis has been demonstrated for the extraordinary relief
sought. This Court has previously addressed the constitutionality of legislative acts through its
special laws among those enumerated subjects in Article III, Section 11(a)(10,12) and avoid or

minimize further disturbance of the public’s rights.

29. No useful purpose is served in submitting unconstitutional proposed amendments to a state

statute to the public for referendum. The amendment to Laws of Florida, Chapter 10847, §29-B

would grant a privilege to one company to negotiate with the City, amending Laws of Florida,

Chapter 10847, §29-B from a general law to one that is a special law prohibited by the Florida

Constitution. Fla. Const. Art. III., § 11(a)(10,12) When the people have spoken through their

organic law concerning their basic rights, it is primarily the duty of the legislative body to provide

ways and means of enforcing such rights; however in absence of appropriate legislative action it

is responsibility of the courts to do so. Dade County Classroom Teachers Ass’n, Inc. v.

Legislature, 269 So. 2d 684 (Fla. 1972).

The doctrine of separation of powers mandates the Court recognize the will of the people

as expressed in the Florida Constitution and in their Charter and strike the clearly and conclusively

defective proposed amendment contrary to the Court’s conclusion of law that doing so would

interfere with the City’s legislative decision. Constitutional provisions are presumed self-

executing to prevent the Legislature from nullifying the will of the people as expressed in their

constitution. Browning v. Florida Hometown Democracy, Inc, PAC, 29 So. 3d 1053 (Fla. 2010).

Express or implied provisions of the Constitution cannot be altered, contracted, or enlarged by

mandamus authority. See Division of Bond Finance v. Smathers, 337 So.2d 805 (Fla.1976).
Accordingly, we treat all of the petitions filed here as petitions for writs of mandamus. While this
Court has entertained mandamus petitions involving constitutional challenges, "[o]rdinarily the
initial challenge to the constitutionality of a statute should be made before a trial court." Id.
at 807. However, mandamus is the appropriate vehicle for addressing claims of unconstitutionality
"where the functions of government will be adversely affected without an immediate
determination." Id.; see also Dickinson v. Stone, 251 So.2d 268, 271 (Fla.1971).” Allen v.
Butterworth, 756 So. 2d 52 (Fla. 2000)
Legislative enactment. The Florida Bar v. Sibley, 995 So. 2d 346 (Fla. 2008). If the language of

a constitutional provision is clear, unambiguous, and addresses that matter in issue, then it must

be enforced as written. Lawnwood Med. Ctr., Inc. v. Seeger, 990 So. 2d 503 (Fla. 2008).

30. The Court’s failure to set forth its conclusion of law in regard to Plaintiff’s constitutional

challenge to the proposed Charter amendment deprives the parties of the speedy determination

needed based on the specific facts and circumstances of this case. Mandamus may be granted to

settle a purely legal question existing between parties where the speedy determination of such

question will furnish an authoritative guide for public officials in the future. Salvador v. Fennely,

593 So. 2d 1091 (Fla. 4th DCA 1992); State ex rel. Seaboard Airline R. Co. v. Gay, 160 Fla. 445,

35 So. 2d 403 (1948). 10 Fla. Jur. 2d. CONSTITUTIONAL LAW § 81, “courts have the authority

to determine the facial constitutionality of a proposed ordinance to be submitted to the electorate

for passage and whether it is within the powers of the enacting body.” City of Boca Raton v. Siml,

96 So. 3d 1140 (Fla. 4th DCA 2012).

31. The judgment fails to set forth whether defendant’s failure to follow the mandatory charter

provisions as alleged in Count II renders any contract executed as a result void on that grounds

that it is against public policy. “A taxpayer may also bring an action on behalf of himself or herself

and other taxpayers similarly situated to prevent performance of a contract on the ground that it is

against public policy and therefore void.” City of Miami v. Benson, 63 So. 2d 916(Fla. 1953);

Lainhart v. Burr, 49 Fla. 315, 38 So. 711 (1905). The manner of conveying municipal property

may be prescribed by statutory or charter provisions, and such procedure must be conformed to in
order for the municipality to pass good title. Martin v. Board of Public Instruction of Broward

County, 42 So. 2d 712 (Fla. 1949) 10; Sec. 29-A.

32. The judgment incorrectly states “he does not allege that he is a registered voter” contrary

to the allegation in paragraph 1 that Plaintiff is a registered voter. See ¶ 1, Amended

Complaint/Alternative Writ of Mandamus. Lake Sarasota, Inc. v. Pan. Am. Sur. Co., 140 So.2d

139, 142 (Fla. 2d DCA 1962) (“[i]t is the duty and responsibility of the attorneys in a cause to see

that the orders entered by the trial court are in proper form and substance and that they correctly

recite the record. Any incorrect statements made in any order should be promptly brought to the

attention of the court.”)

33. The Court also concludes as a matter of law that that whether to designate a project a

unified development project is “clearly discretionary” despite the mandatory language defining

unified development project in the Charter, Sec. 29-A, and the standard applicable to a motion to

dismiss that the allegation that the project was in fact a unified development project be taken as

true. Contrary to the Court’s judgment, if the project is a unified development project, it is not a

10
City of Miami v. Benson, 63 So.2d 916, 923 (Fla.1953) “It is urged by the petitioners that if
relief is granted, greater injury would accrue to the city than to the respondents and all others
similarly situated. This is the equivalent of saying that a good purpose is to be served and,
therefore, the law or the public policy of the state should be ignored, and the contracts violating
the public policy of the state and the law should be condoned or approved. This is a dangerous
doctrine. The establishment of such a doctrine would not simply affect this particular contract but
it would open wide the door for the officers of every municipality, county, political subdivision or
state board or commission to ignore the public policy and the law because they were free of fraud,
bad faith or corruption and the end sought to be attained would serve a useful purpose. Public
policy affects every citizen and taxpayer. The number to be benefitted is not the test in determining
public policy.

The cases cited by petitioners relating to who will suffer the greatest injury and inconvenience
have no bearing upon the question involved in this case.”
discretionary decision for the Commission to ignore the mandatory definition and proceed as if it

were not, and the trial court in its role as fact finder should not render the statutory provisions in

Section 29-A meaningless by failing to hold an evidentiary hearing in accordance with the facts

and equities of the case. The Charter’s use of the mandatory term “shall”, governing the

substantive rights of the public normally creates an obligation impervious to judicial discretion.

Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 118 S. Ct. 956 (1998); City

of St. Petersburg v. Remia, 41 So. 3d 322 (Fla. 2d DCA 2010). A statute will not be construed in

such a way that it renders meaningless any other statutory provision. Twin Oaks Villas, Ltd. V.

Joel D. Smith, LLC, 79 So. 3d 67 (Fla. 1st DCA 2011); Katherine’s Bay, LLC v. Fagan, 52 So. 3d

19 (Fla. 1st DCA 2010)

34. The conclusions of law fail to set forth why as prior public notice is defined in the Charter,

it is not a ministerial duty of the City and Commission “to advertise in the newspaper, an

advertisement soliciting proposals for said sale or lease published in a daily newspaper of general

paid circulation in the city, allowing not less than ninety (90) days for the city's receipt of proposals

from prospective purchasers or lessees, said advertisement to be no less than one fourth (¼) page

and the headline in the advertisement to be in a type no smaller than 18-point”.

35. The Court’s order begins by citing a case from the Federal Court of Appeals Jackson v.

Motel 6 Multipurpose, Inc., 130 F. 3d 999 (11th Cir. 1997) for the proposition that “the relief sought

herein is available only in drastic situations…”. This conclusion of law is erroneous as in Federal

Courts of limited jurisdiction under the US Constitution, Mandamus is a statutory, not common

law remedy. 28 U.S.C. § 1651. The federal standard cited by the Court is not applicable to

mandamus relief in Florida, which has not abolished the common law remedy of mandamus or

superseded it by statute. U.S. Const. Amend. 10.
36. The Court errs by “agree[ing] with Intervenor Defendant Miami Freedom Park LLC, that

while Plaintiff’s self-proclaimed status as a defender of the public rights may be viewed by some

as a virtuous pursuit, this Court is bound by stare decisis to require Plaintiff to demonstrate a

special injury before it can consider the merits of his challenge. Kneapler v. City of Miami, 173

So. 2d 1002, 1004 (Fla. 3d DCA 2015).”(as discussed infra, Kneapler and Solares were decided

before the enactment of Sec. 52 of the Charter and the court’s decision in Herbits, and further

distinguishable from the facts of this case.)

37. While the court may not agree with the voters who enacted section 52, expressly providing

standing to the public to enforce the Charter, or agree with section 29, expressly prohibiting the

sale or lease of City-owned land unless there has been prior public notice and a prior opportunity

given to the public to compete for the sale or lease of City-owned land, the Court is not free to

refuse to enforce these statutes. Comcoa, Inc. v. Coe. 587 So.2d 474 (Fla. 3d DCA, 1991)

While a judge of course may disagree with a particular statute, he or she is not free
to refuse to enforce it on any such ground. City of Jacksonville v. Bowden, 67 Fla.
181, 64 So. 769 (1914), 13 Fla.Jur.2d Courts and Judges Sec. 122 (1979). Under
the appellee's view, the court would be permitted to deny the required relief based
on no more than a personal desire not to do so. It need hardly be said that in a
government of laws and not persons such a conclusion may not be countenanced.
Since, then, there is no basis for an exercise of discretion to deny the writ, there can
be no ability to deny it at all. See Canakaris v. Canakaris, 382 So.2d 1197
(Fla.1980); Arango v. Arango, 450 So.2d 583 (Fla. 3d DCA 1984). 7
Finally, the appellee suggests that mandamus itself is only a "discretionary" writ,
and that the circuit court should not therefore be reversed for denying that petition.
For precisely the same reasons we have already discussed, however, we conclude
that there is no lawful basis for the writ of mandamus to have been denied. As is
said in 35 Fla.Jur.2d Mandamus and Prohibition Sec. 14: The discretion resting in
the court to grant or deny a writ of mandamus is not an arbitrary one but a judicial
or legal discretion, regulated by established rules of law. It connotes the exercise of
opinion and judgment circumscribed by law, and where the right is indisputable,
there is no room for the exercise of discretion other than in keeping with the law.
(footnotes omitted)

Comcoa, Inc. v. Coe, 587 So.2d 474 (Fla. 3d DCA, 1991)
38. The cases cited to support the Court’s conclusion that “plaintiff must demonstrate a special

injury different than the injury suffered by the general public” are not applicable to the facts and

circumstances of this case and allegations of the amended complaint:

a. Centrust Sav. Bank v. City of Miami, 491 So. 2d 657, 577 (Fla. 3d DCA 1986)(in

which the court was asked to compel a government entity or government official

to inspect defendant property owners property for possible building or zoning

violations, and to require the City of Miami to enforce specific fire resistivity

provisions of the building code.)

b. School Board of Volusia Count v. Clayton, 681 So. 2d 1066, 1068 (Fla. 1997)

(“DOES THE "UNIQUENESS OF THE PARTICULAR CASE" STANDARD

PERMIT A TAXPAYER CHALLENGE TO THE ACTION OF A PUBLIC

BOARD WHICH IS ALLEGED TO BE ACTING IN EXCESS OF ITS

STATUTORY AUTHORITY AND WHICH ACTION EITHER INCREASES

THE TAX BURDEN OR WASTES PUBLIC MONEY?”) Holding: NO.

c. North Broward Hospital District v. Fornes, 476 So. 2d 154, 155 (Fla. 1985).

The holding in Fornes was based on an answer by the Florida Supreme Court to a

question certified to be of great public importance:

Certified Question: “Does a taxpayer who alleges that the taxing authority is acting
illegally in expending public funds, which will increase his tax burden, have
standing to sue to prevent such expenditure, or is it necessary that he suffer some
other special injury distinct from other taxpayers (as opposed to other inhabitants)
or launch a constitutional attack upon the taxing authority's action in order to have
standing?”

Holding: “We quash the district court's holding that a taxpayer has standing to
challenge the expenditure of public funds by simply alleging that such expenditure
will increase her tax burden. Rather, we continue to adhere to precedent and hold
that absent a constitutional challenge, a taxpayer must allege a special injury
distinct from other taxpayers in the taxing district to bring suit.”

It is not clear why the Court cites North Broward Hospital District v. Fornes, 476 So. 2d

154, 155 (Fla. 1985) as the case clearly holds that special injury is required absent a constitutional

challenge.

Contrary to the conclusion of law that no limiting provisions may be engrafted on Section

6.03, following City of Miami v. Miami Ass’n of Firefighters, Local 587, 744 So. 2d 555 (Fla. 3d

DCA 1999) holding that 166.041(2) did not apply or in Miami Heat Ltd. Partnership v. Leahy, 682

So. 2d 198 (Fla. 3d DCA 1996) holding that a County ordinance did not apply, Fla. Const. Art. III,

Sec. 6., must be read in harmony with Section 6.03 providing for the manner of amending

municipal Charters in Miami-Dade County and the chapter laws contained therein. In the above

cases, the Court did not hold Florida Constitution Article III, Section 6 did not apply only that an

ordinance and statute did not apply.

Laws.—Every law shall embrace but one subject and matter properly connected
therewith, and the subject shall be briefly expressed in the title. No law shall be
revised or amended by reference to its title only. Laws to revise or amend shall set
out in full the revised or amended act, section, subsection or paragraph of a
subsection. The enacting clause of every law shall read: “Be It Enacted by the
Legislature of the State of Florida:”.

See commentary to 1968 revision: “Under this section relating to the form and content of laws

presented to the legislature, every law must: (1) embrace but one subject which must be briefly

expressed in the title and (2) embrace matter properly connected therewith.”

In analyzing whether a chapter law meets the requirements of the single subject rule of the

Florida Constitution, the court must review the various sections of that chapter law to determine

whether they have a natural or logical connection. State v. Thompson, 750 So. 2d 643 (Fla. 1999).

Here, the Commission presents to the electorate and would present to the legislature a chapter law

which combines a question about a skeleton lease, waiver of competitive bidding required by a
superseding and unamended statute, whether to build a soccer stadium, a mall, a hotel, a park,

among other things, at the same time the City claims the project is not a unified development

project. The City cannot argue these distinct projects have a natural or logical connection when

the development seems to be the first of its kind anywhere while at the same time maintaining the

incongruous position that the project is not a unified development project.

In attempting to enact new legislation to amend Laws Of Florida, Chapter 10847, § 29-B,

the proposed amendment violates Art. III, Sec. 6. and Plaintiff would seek leave to amend to

challenge the proposed legislation under this section. If granted leave to amend, Plaintiff would

elaborate on why this attempted enactment of a chapter law violates the single subject rule of the

Florida Constitution Article III, Section 6.

39. The trial Court again improperly references the initial complaint in the last two paragraphs

of the order: stating that “the complaint also alleges that the proposed charter amendment is vague

because it violates § 166.041 Fla. Stat., commonly known as the “single subject rule…” and

“Finally as further grounds for denial it is clear from the four corners of the complaint that the

public was provided an opportunity to comment during the public hearing. On the face of the

complaint and the video and transcript hyperlinks provided therein, it is evident that the public was

allowed to comment during the public meeting as well over one hundred members of the public

commented. The plaintiff also appeared and commented.”

40. The trial court’s conclusion that review of the constitutionality of the proposed charter

amendment “effectively asks this court to interfere with the City’s legislative decision to approve

a resolution and present a charter amendment to the electorate; but plaintiff has not demonstrated

that a constitutional or statutory right has been violated” is contrary to the allegations in the

complaint alleging violations of constitutional and statutory rights, and contrary to decisions of
The Supreme Court of Florida, which has repeatedly held that courts may exercise discretion to

issue writs of mandamus to address pure issues of law and legal questions relating to the

constitutionality of statutes or proposed charter amendments. Hess By and Through Hess v.

Metropolitan Dade County, 467 So. 2d 297 (Fla. 1985); Fine v. Firestone, 448 So. 2d 984 (Fla.

1984); Allen v. Butterworth, 756 So. 2d 52 (Fla. 2000); Chiles v. Milligan, 659 So 2d 1055, (Fla.

1995); and Moreau v. Lewis, 648 So. 2d 1055 (Fla. 1995). See also Gaines v. City of Orlando,

450 So. 2d 1174 (Fla. 5th DCA)(In their discretion, the courts may make an initial determination

as to whether or not the substantive provisions of the proposed amendments, are facially

constitutional and are within the powers of the enacting body. Fine v. Firestone, 448 So. 2d 984

(Fla. 1984); City of Miami Beach v. Smith, 165 So. 2d 748 (Fla. 1964); Dade County v. Dade

County League of Municipalities, 104 So. 2d 512 (Fla. 1958).)

41. Finally, without citing any authority, the trial Court concludes that since there was public

comment at the July 12, 2018 meeting, prior to the developer’s presentation and that Plaintiff was

permitted to speak for two minutes at the hearing, demanding that the Commission put the property

up for competitive bid, that this is somehow fatal to the amended complaint, justifying dismissal

with prejudice, contrary to the public policy of Florida in allowing public participation and scrutiny

in the Sunshine, and the state’s strong public policy to apply liberality in pleadings amendments.

WHEREFORE, for these reasons the court should:

a. Vacate or set aside the August 15, 2018 order dismissing with prejudice

b. Grant this motion for rehearing

c. Or in the alternative amend or alter the judgment and conclusions of law or make new

findings of fact and conclusions of law, and set aside the judgment entered in this cause
on August 15, 2018, and enter a judgment in accordance with the facts and equities in this

case.

d. Order that the conclusions of law in the August 15, 2018 order designated in this motion

as being contrary to law be stricken, and the conclusions of law in this motion be entered

in lieu thereof, upon the grounds that the law applicable to the allegations stating a legally

sufficient basis for relief justify entry of a peremptory writ of mandamus considering

defendants have waived their right to respond to the amended complaint.

e. Find that the proposed amendment to 29-B Laws Of Florida, Chapter 10847 is

unconstitutional on its face as a prohibited special law

f. vacate the order allowing voluntary-party defendant, Miami Freedom Park, LLC to

intervene as a “as a full party defendant with the right to participate fully in all aspects of

these proceedings” and, in the alternative set their motion to intervene and Plaintiff’s

opposition to motion to intervene for evidentiary hearing

g. In the alternative, without waiver of Plaintiff’s absolute right to amend the complaint as a

matter of course without leave of court when served prior to a hearing on a motion to

dismiss, accept the amended complaint/alternative writ of mandamus filed August 14 as an

amended pleading incorporated by reference in the alternative writ, and require defendants

to respond thereto within 20 days from the date of service (August 14, 2018), after which

time the Court could set for hearing a motion for default should defendants not interject

any defense, or if the defendants should respond by motion, schedule defendants’ Motion

to dismiss the alternative complaint at a duly noticed hearing on defendants’ response to

the amended complaint.

h. Issue the alternative writ of mandamus as to additional party Christina White
i. In the alternative, in the interests of justice grant leave to amend, the amended

complaint/alternative writ of mandamus rather than dismissing with prejudice.

CERTIFICATE OF SERVICE

IT IS HEREBY CERTIFIED that a true and correct copy of the above and foregoing,

pursuant to Fla. R. Judicial Admin. 2.516, was on this day furnished to Defendants (excluding

Christina White) via the Florida E-Filing portal.

DATED: AUGUST 29, 2018
Respectfully submitted,
S/William Douglas Muir
WILLIAM D. MUIR
FL Bar No. 102766
Mailing address:
3855 Stewart Ave
Miami, FL 33133
305-667-1767
305-608-8954 (Mobile)
douglas@muirlaw.miami
wdmuir@gmail.com.
City of Miami C ty Ha
3500 Pan Amer can
Dr ve
Legislation M am , FL 33133
www.m am gov.com

Resolution: R-16-0352

File Number: 16-01049 Final Action Date: 7/29/2016

A RESOLUTION OF THE MIAMI CITY COMMISSION, WITH ATTACHMENT(S),
APPROVING, SETTING FORTH AND SUBMITTING TO THE ELECTORATE A
PROPOSED CHARTER AMENDMENT, AMENDING THE CHARTER OF THE CITY OF
MIAMI, FLORIDA, AS AMENDED ("CHARTER"), KNOWN AS CHARTER AMENDMENT
NO. 4; AMENDING SECTION 52, ENTITLED "CITIZENS' BILL OF RIGHTS," TO PLACE
THE CITIZENS' BILL OF RIGHTS AT THE BEGINNING OF THE CHARTER; TO
EXPRESSLY REQUIRE THE CITY OF MIAMI TO ABIDE BY THE CHARTER'S
PROVISIONS, PROVIDE THE RESIDENTS THE RIGHT TO SUE AND BE HEARD IN
COURT TO ENFORCE COMPLIANCE WITH CHARTER PROVISIONS, AND IF
SUCCESSFUL, TO RECOVER COURT COSTS BUT NOT ATTORNEY'S FEES;
CALLING FOR AND PROVIDING THAT CHARTER AMENDMENT NO. 4 WILL BE
SUBMITTED TO THE ELECTORATE AT THE SPECIAL ELECTION TO BE HELD ON
NOVEMBER 8, 2016; DESIGNATING AND APPOINTING THE CITY CLERK AS THE
OFFICIAL REPRESENTATIVE OF THE CITY COMMISSION WITH RESPECT TO THE
USE OF VOTER REGISTRATION BOOKS AND RECORDS; FURTHER DIRECTING
THE CITY CLERK TO CAUSE A CERTIFIED COPY OF THE HEREIN RESOLUTION TO
BE DELIVERED TO THE SUPERVISOR OF ELECTIONS OF MIAMI-DADE COUNTY,
FLORIDA, NOT LESS THAN 45 DAYS PRIOR TO THE DATE OF SUCH SPECIAL
ELECTION; PROVIDING AN IMMEDIATE EFFECTIVE DATE FOR THIS RESOLUTION.

WHEREAS, the City of Miami ("City") was incorporated by the Florida Legislature in 1896 and
operates pursuant to the Charter of the City of Miami, Florida ("Charter"); and

WHEREAS, the Charter has been amended from time to time as the governance of the City
has evolved; and

WHEREAS, the City Commission established a Charter Review and Reform Committee
("Committee") in 2014 to conduct a comprehensive review of the Charter and propose amendments to
the Charter; and

WHEREAS, the Committee has held numerous public meetings, conducted a comprehensive
review of the Charter, and has recommended that the Charter be streamlined, updated, and amended
to meet the current needs of the City and its residents; and

WHEREAS, on July 13, 2016, the Committee presented its final report and recommendations
to the City Commission; and

WHEREAS, the City Commission approved the Committee's proposed amendments to Section
52 of the Charter, entitled, "Citizens' Bill of Rights," to place the Citizens' Bill of Rights at the beginning
of the Charter, to expressly require the City to abide by the Charter's provisions, to provide the
residents the right to sue and be heard in court to enforce compliance with Charter provisions, and if
successful, to recover court costs but not attorney's fees; and

WHEREAS, the City Commission directed the City Attorney to prepare an amendment to

City of Miami Page 1 of 6 File Id: 16-01049 (Version: 2) Printed On: 8/6/2018
File Number: 16 01049 Enactment Number R-16-0352

Section 52 of the Charter for consideration at the Special Election to be held on November 8, 2016;
and

WHEREAS, the proposed Charter Amendment is set forth in its final form in this Resolution ;
and

WHEREAS, the proposed amendment shall be submitted to the electorate at the Special
Election to be held on November 8, 2016, as called for and provided herein;

NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI,
FLORIDA:

Section 1. The recitals and findings contained in the Preamble to this Resolution are adopted
by reference and incorporated as if fully set forth in this Section.

Section 2. Section 52 of the Charter, entitled "Citizens' Bill of Rights," is proposed to be
amended in the following particulars: {1}

"CHARTER AND CODE OF THE CITY OF MIAMI, FLORIDA

SUBPART A. THE CHARTER

(A) This government has been created to protect the governed, not the governing. In order to
provide the public with full and accurate information, to promote efficient administrative
management, to make government more accountable, and to insure to all persons fair and equitable
treatment, the City of Miami adopts the provisions of the Miami-Dade County Citizens' Bill of Rights
as applied to municipal governments located within Miami-Dade County and guarantees the
following additional rights are guaranteed to its Citizens:

1. To Be Governed By The Rule of Law. The City of Miami Charter is the Constitution of the
City of Miami and the City shall abide by all of its express provisions.

12. Religion and Conscience. The City shall not interfere with the freedom of each person in
the city to follow the dictates of his or her own conscience concerning religious worship, nor
shall the city support any religion.

23. Speech, Assembly and Press. The City shall not interfere with the rights: (i) of freedom of
speech; (ii) of freedom of the press; (iii) to petition the government, or (iv) to peaceable
assembly.

34. Unreasonable Searches and Seizures. The City shall not authorize any unreasonable
search or seizure.

45. Nondiscrimination. The City shall not, directly or indirectly, discriminate among persons
because of race, color, creed, religion, sex, domestic relationship status, parental status,
familial status, sexual orientation, national origin, political affiliation, gender identity and
expression, or racial profiling. Nothing herein shall prevent the City of Miami from remedying
present discrimination or the present effects of past discrimination by a race -conscious
affirmative action program which is in compliance with the Constitution and laws of the United
States of America and the State of Florida.

City of Miami Page 2 of 6 File Id: 16-01049 (Version: 2) Printed On: 8/6/2018
File Number: 16 01049 Enactment Number R-16-0352

56. Environmental Protection. The City shall promote the right of the people to clean air, pure
water, freedom from excessive and unnecessary noise, and the natural, scenic, historic and
aesthetic qualities of the environment.

67. Natural Resources and Scenic Beauty. It shall be the policy of the City to conserve and
protect its natural resources and scenic beauty, which policy shall include the abatement of air
and water pollution, and excessive and unnecessary noise.

(B) The foregoing enumeration of citizens' rights vests large and pervasive powers in the citizenry of
the City of Miami. Such power necessarily carries with it responsibility of equal magnitude for the
successful operation of government in the City. The orderly, efficient and fair operation of
government requires the intelligent participation of individual citizens exercising their rights with
dignity and restraint so as to avoid any sweeping acceleration in the cost of government because of
the exercise of individual prerogatives, and for individual citizens to grant respect for the dignity of
public office.

(C) Remedies for violations. In any suit by a citizen alleging a violation of this Bill of Rights filed in
the Dade County Circuit Court pursuant to its general equity jurisdiction, the plaintiff, if successful,
shall be entitled to recover costs as fixed by the court. Any public official, or employee who is found
by the court to have willfully violated this article shall forthwith forfeit his or her office or employment .
Residents of the City shall have standing to bring legal actions to enforce the City Charter, the
Citizens' Bill of Rights, and the Miami-Dade County Citizens' Bill of Rights as applied to the City.
Such actions shall be filed in Miami-Dade County Circuit Court pursuant to its general equity
jurisdiction and, if successful, the plaintiff shall be entitled to recover costs, but not attorney's fees,
as fixed by the court. Any public official, or employee who is found by the court to have willfully
violated this section shall forthwith forfeit his or her office or employment .

(D) Construction. All provisions of this article shall be construed to be supplementary to and not in
conflict with the general laws of Florida or the provisions of the Florida Constitution. If any part of
this article shall be declared invalid, it shall not affect the validity of the remaining provisions ."

The Charter Amendment proposed in this Section shall be known as Charter Amendment No .
4.

Section 3. In accordance with the provisions of the Charter, as amended, §6.03 of the
Miami-Dade County Home Rule Charter, and Section 2-112 of the Code of the City of Miami, Florida
("City Code"), from 7:00 A.M. until 7:00 P.M., on Tuesday, November 8, 2016, a Special Election will
be held for the purpose of submitting to the qualified electors of the City of Miami ("City") their approval
or disapproval the measure known as Charter Amendment No. 4.

Section 4. The Special Election shall be held at the voting places in the precincts designated,
all as shown on the list attached hereto and made a part hereof and referred to as Exhibit No.1 or as
may be designated by the Supervisor of Elections of Miami-Dade County, Florida, in conformity with
the provisions of general laws of the State of Florida ("State"). The Precinct Election Clerks and
Inspectors to serve at said polling places on said Special Election date shall be those designated by
the Supervisor of Elections of Miami-Dade County, Florida, for such purpose in accordance with the
general laws of the State. A description of the registration books and records which pertain to Special
Election precincts wholly or partly within the City and which the City is adopting and desires to use for
holding such Special Election is all registration cards, books, records and certificates pertaining to

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electors of the City and established and maintained as official by the Supervisor of Elections of
Miami-Dade County, Florida, in conformity with the laws of the State, are adopted and declared to be,
and shall hereafter be recognized and accepted as, official registration cards, books, records and
certificates of the City.

Section 5. In compliance with Section 100.342, Florida Statutes, the City Clerk is authorized
and directed to publish notice of the adoption of this Resolution and of the provisions hereof, at least
twice, once in the fifth week and once in the third week prior to the week in which the aforesaid Special
Election is to be held, in newspaper(s) of general circulation in the City, which notice shall be
substantially in the following form:

"NOTICE OF SPECIAL ELECTION
TO AMEND THE MIAMI CITY CHARTER TO BE HELD ON
TUESDAY, NOVEMBER 8, 2016
IN THE CITY OF MIAMI, FLORIDA

PURSUANT TO RESOLUTION NO. R-16-0352

A Special Election will be held on Tuesday, November 8, 2016 from 7:00 A.M. until 7:00
P.M. in the City of Miami, Florida, at the polling places in the several Special Election
precincts designated by the Board of County Commissioners of Miami-Dade County,
Florida, as set forth herein, unless otherwise provided by law and submitting to the
qualified electors of the City of Miami, Florida, the following question:

"Shall Section 52 of the Charter of the City of Miami, Florida, known as the 'Citizens' Bill
of Rights,' be placed at the beginning of the Charter, be amended to expressly require
the City to abide by the Charter's provisions, provide the residents the right to sue and
be heard in court to enforce compliance with Charter provisions, and if successful, to
recover court costs but not attorney's fees?"

Charter Amendment No. 4 places the Citizens' Bill of Rights at the beginning of the
Charter of the City of Miami, Florida, as amended ("Charter"), expressly requires the
City to abide by the Charter's provisions, provides the residents the right to sue and be
heard in court to enforce compliance with Charter provisions, and if successful, to
recover court costs but not attorney's fees."

By order of the Commission of the City of Miami, Florida.

City Clerk
A list of City of Miami polling places follows:
(Insert list of City of Miami Polling Places.)

_________________
YES
(For the Measure)

_________________

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NO
(Against the Measure)

Section 6. The official ballot to be used at said Special Election shall be in full compliance with
the laws of the State with respect to absentee ballots and to use of the mechanical voting mechanics
or the Computer Election System, and shall be in substantially the following form, to wit:

"OFFICIAL BALLOT"
SPECIAL ELECTION
TUESDAY, NOVEMBER 8, 2016
FOR APPROVAL OR DISAPPROVAL OF
THE FOLLOWING QUESTION:

-----------------------------------------------------------------
Charter Amendment Guaranteeing City Will Follow
Charter and Allowing Residents to Enforce Charter
-----------------------------------------------------------------

_________________YES _________________NO

(For the Measure) (Against the Measure)

"Shall Section 52 of the Charter of the City of
Miami, Florida, known as the 'Citizens' Bill of
Rights,' be placed at the beginning of the Charter,
be amended to expressly require the City to abide
by the Charter's provisions, provide the residents
the right to sue and be heard in court to enforce
compliance with Charter provisions, and if
successful, to recover court costs but not
attorney's fees?"

Section 7. The form of the ballot shall be in accordance with requirements of general election
laws. Electors desiring to vote in approval of the Question described above, shall be instructed to vote
their selection next to the word "YES" within the ballot frame containing the statement relating to the
Question. Electors desiring to vote to disapprove the Question shall be instructed to vote their
selection next to the word "NO" within the ballot frame containing the statement relating to the
Question. Once individuals are satisfied with their choice, they shall press the " Vote" button and the
ballot shall be cast.

Section 8. The City Clerk shall cause to be prepared absentee ballots containing the Question
set forth in Section 6 above for the use of absentee electors entitled to cast such ballots in said special
election.

Section 9. All qualified Electors of the City shall be permitted to vote in the Special Election
and the Supervisor of Elections of Miami-Dade County, Florida, is requested, authorized, and directed
to furnish, at the cost and expense of the City, a list of all qualified electors residing in the City as
shown by the registration books and records of the Office of said Supervisor of Elections and duly

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certify the same for delivery to and for use by the election officials designated to serve at the
respective polling places in said Special Election precincts.

Section 10. For the purpose of enabling persons to register who are qualified to vote in said
Special Election to be held on Tuesday, November 8, 2016, and who have not registered under the
provisions of the general laws of the State and Chapter 16 of the Code of the City of Miami, Florida,
or who have transferred their legal residence from one voting precinct to another in the City, they may
register Monday through Friday, from 8:00 A.M. to 5:00 P.M. at the Miami-Dade County Elections
Department located at 2700 Northwest 87th Avenue, Doral, Florida, within such period of time as may
be designated by the Supervisor of Elections of Miami-Dade County, Florida. In addition to the above
place and times, qualified persons may register at such branch offices and may also use any mobile
registration van for the purpose of registration in order to vote in the herein described Special Election
during such times and on such dates as may be designated by the Supervisor of Elections of
Miami-Dade County, Florida.

Section 11. Todd B. Hannon, the City Clerk of the City, is designated and appointed as the
official representative of the City Commission, in all transactions with the Supervisor of Elections of
Miami-Dade County, Florida, related to matters pertaining to use of the registration books and holding
of said Special Election.

Section 12. The City Clerk shall deliver a certified copy of this Resolution to the Supervisor of
Elections of Miami-Dade County, Florida, not less than forty-five (45) days prior to the date of the
Special Election.

Section 13. This Resolution shall become effective immediately upon its adoption and
signature of the Mayor. {1}

Footnotes:

{1} If the Mayor does not sign this Resolution, it shall become effective at the end of ten (10) calendar
days from the date it was passed and adopted. If the Mayor vetoes this Resolution, it shall become
effective immediately upon override of the veto by the City Commission .

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