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Case 1:18-cv-24190-FAM Document 20 Entered on FLSD Docket 11/20/2018 Page 1 of 16

Case No.: 1:18-cv-24190







Plaintiffs, William O. Fuller (“Fuller”), and Martin Pinilla, II (“Pinilla”), pursuant to

Federal Rule of Civil Procedure 65(b), hereby submit this Motion for a Temporary Restraining

Order and an Emergency Hearing (the “Motion”) seeking an order to temporarily restrain the

Defendant, Miami City Commissioner Joe Carollo (“Carollo”), from further retaliation against

the Plaintiffs’ First Amendment rights pending a full evidentiary hearing on Plaintiffs’ motion

for a preliminary injunction.


Plaintiffs had hoped they would not have to return to this Court to seek emergency relief

prior to the mediation the Court suggested at the initial status conference on October 17, 2018.

At that conference, the Court inquired whether a mediation could help resolve the issues. In

response, counsel for Plaintiffs explained that they were “very reasonable businessmen, and they

would be happy to resolve this amicably if that's at all possible.” Hrg. Tr. 22:25-23:5. Counsel

further explained that Plaintiff “Fuller, in his capacity as chairman of Viernes Culturales, has
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sent numerous letters to the commissioner asking him to come and meet. The Commissioner has

refused and has actually referred the matter to his lawyer, Mr. Kuehne, who has set up – they’ve

apparently set up a competing organization” to Viernes Culturales. Id. at 26:23-27:7.

In response to Carollo’s counsel’s representations that the Commissioner would be

willing to mediate in good faith but that he was busy with the coming election, the Court noted it

may not be “worth mediating during this three-week period, so I would say we are going to stay

the case till after the election ….” Id. at 36:18-19. Plaintiffs explained that a “stay, even a short

stay for three weeks, or a delay, hurts us if the harassment continues.” Id. at 32:9-17. In

response, the Court made clear that no harassment was to occur before the mediation. The Court

noted that Commissioner Carollo’s duties vis-a-vis certain election issues were “more important

than the alleged vendetta,” and that the Plaintiffs should be willing to agree to a stay: “Don't

harass us. There won't be any reason to harass us, to even be petty about it because, in the

plaintiffs’ view, he’s too busy doing other things.” Hrg. Tr. 33:9-34:5. The Court then asked:

“Doesn't that make sense?” to which Plaintiffs’ counsel responded with a definitive “Yes.” Id.

The Court then inquired: “[i]s there something special happening at any of the

establishments during the next three weeks, any festivals?” Counsel responded that if

“something happens that we think is serious, we’ll alert the Court . . .” and the Court finished the

sentence saying “then you file a motion.” Id. at 37:2-9 (emphasis added). The Court stressed

again, however that: “I assume that nothing is going to happen because everybody is too busy

anyway on one side.” Id at 37:9-11.

The notion that the Commissioner was “too busy” turns out not to have been the case.

Indeed, in addition to presumably focusing on the election, he also found plenty of time to plot

his next move against the Plaintiffs. In fact, before the elections even occurred, Mr. Carollo

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went to the City’s Special Events Department seeking a permit to reserve Domino Plaza on Calle

Ocho for his exclusive use on the last Friday of each of the next six (6) months. This was an

intentional move by Mr. Carollo aimed at destroying Viernes Culturales/Cultural Fridays - a

monthly festival with an 18 year history of taking place in Domino Plaza on the last Friday of

every month. The festival draws close to 5,000 attendees every month and benefits dozens of

vendors and local businesses that depend on the resulting foot traffic for their monthly profits.

Indeed Mr. Carollo made this move, not because of any legitimate purpose, but as a manipulative

and calculated attack on Plaintiff Fuller, who is the current President of Viernes Culturales and

has been associated with the organization for over 12 years. Indeed, when the director of

Viernes Culturales visited the Special Events Department last week, she was informed that a

permit could not be issued for the November 30, 2018 Viernes Culturales event because the

Commissioner had in fact applied for and apparently been conditionally granted a permit to

block the use of Domino Plaza on the same date.

As a result of the Commissioner’s actions, Plaintiffs are requesting that this Court hold a

second status conference for the purpose of scheduling a full evidentiary hearing on Plaintiffs’

motion for a preliminary injunction. The hearing is necessary as Commissioner Carollo has been

telling his associates of his plan to wait until the week that the Court-suggested mediation was

scheduled (which had been December 13, 2018), and then call an emergency City meeting as an

excuse to postpone the mediation. He said he would be able to drag out this federal lawsuit for

“5 years.” Given that Commissioner Carollo does not take this Court’s admonitions, nor the

opportunity to mediate, seriously, a full evidentiary hearing is necessary. Furthermore, Plaintiffs

have been informed that a number of City employees hope to be subpoenaed so that they can tell

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their stories of Mr. Carollo’s misuse of City resources in his campaign of retaliation against the



Plaintiffs filed this action and the accompanying Motion for Preliminary Injunction

seeking protection of their First Amendment rights to political speech, assembly and to petition

the government without fear of retaliation from government officials. The complaint sets forth

in detail the retaliatory conduct Carollo engaged in after discovering Plaintiffs had supported his

election opponent, and after Plaintiffs had voluntarily withdrawn an ethics complaint that had

been filed against the Commissioner. This conduct includes, but is not limited to: (a) sending

code enforcement to disrupt and intimidate Plaintiffs’ employee and family holiday party under

false pretenses; (b) shutting down the operations of Plaintiffs’ tenant, Sanguich de Miami; (c)

raiding Plaintiffs’ tenant Union Beer; (d) commandeering a City code enforcement employee to

tour all of Plaintiffs’ properties in search of code violations; (e) organizing and leading a group

of City leaders on a tour of Plaintiffs’ properties in search of code violations; (f) soliciting

neighbors of the Ball & Chain restaurant to make false noise complaints; (g) filing false noise

citations against Ball & Chain; (h) eliminating the position of the magistrates who handle alleged

code violations merely because one such magistrate granted Plaintiffs an extension of time;

(i) destroying Plaintiffs’ investment in a neighborhood marketplace; and (j) most pertinent to

this Motion, seeking to evict Viernes Culturales from access to its long-standing home in

Domino Plaza on the last Friday of the month, and thereby essentially destroying the festival, in

a blatant attack on Plaintiff Fuller in an effort to block Viernes Culturales.

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Featured prominently in both the Complaint [DE 1 at 36-38] and the Motion for

Preliminary Injunction [DE 5 at 10-11] was Carollo’s retaliatory acts against the festival held on

Calle Ocho on the last Friday of every month known as Viernes Culturales/Cultural Fridays. The

festival is organized by a non-profit corporation with the same name, Viernes Culturales/Cultural

Fridays Inc. Plaintiff Fuller is the current President and Chairman of the Board of Directors of

the organization. See Declaration of William “Bill” O. Fuller (“Fuller Declaration”) attached as

Exhibit 1, at ¶¶ 3-4.

While Carollo has recently come to associate Viernes Culturales with Mr. Fuller, the

original idea for the festival came from the City of Miami itself. The City’s Planning

Department supported the creation of Viernes Culturales based upon a Latin Quarter Study and a

Little Havana Neighborhood Planning Study, both of which recommended that, in order to

preserve and enhance the rich culture of Little Havana, a series of cultural activities including art

exhibits, dance, music, poetry, theater, film and neighborhood historic tours should be provided

to the community. Id. at ¶¶5-6.

The creation of Viernes Culturales also had the support of the City of Miami

Commission. In fact, then-Commissioner Willy Gort and then-City Administrator Pablo Canton

were two of the founders of Viernes Culturales. It currently has both City and County

Commissioners participating on the Board and is sponsored by the Miami-Dade County Mayor

and Board of County Commissioners, as well as The James L. Knight Foundation and The

Cultural Affairs Council. Id. at ¶7.

With all of this support, Viernes Culturales has organized a festival incorporating all of

the art galleries, businesses and restaurants along 8th street from 17th Avenue down to 14th

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Avenue, on the last Friday of every month. The festival has occurred every month for eighteen

(18) years, since May 26, 2000. Id. at ¶8.

Over the course of its history, Viernes Culturales has raised and spent more than $3

million building the Friday cultural event. Each month Viernes Culturales sends out thousands

of emails to get people to attend. Id. at ¶9. A typical advertisement for the event emphasizes its

timing, which is the “Last Friday of Every Month,” as follows:

As a result of these marketing efforts, the festival has become extremely well known and

well attended by more than 5,000 people each month. Of course, the vendors who participate in

the event, as well as the neighborhood stores and shops, have come to rely on the monthly event

for a good portion of their sales and revenues. Id. at ¶10.

An integral part of the monthly festival are the activities that take place in Domino Plaza,

which houses over 20 vendors selling original art and handmade crafts and has a stage at the

back of the park to showcase singers, musicians and other talent from the Little Havana

community. The City has always been exceptionally supportive of the festival and provided

support through the provision of stages and increased police oversight. Id. at ¶11.

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The photograph below shows Commissioner Willy Gort and Mayor Thomas Regalado

awarding Viernes Culturales with a proclamation from the City of Miami in recognition of the

success the festival continues to have in revitalizing Little Havana and supporting the local

artists, musicians, dancers, craftsmen, and entrepreneurs:

Id. at ¶12.

On at least six occasions over the past year, Viernes Culturales has invited Commissioner

Carollo to come to its events and even to join its board of directors meetings. Id. at ¶13. For

example, on March 19, 2018, the Director of Viernes Culturales, acting on Mr. Fuller’s

instruction, sent Mr. Carollo the following letter:

Dear Commissioner Carollo:

I would like to invite you to a board meeting for Viernes Culturales that will take place at
Futurama located at 1637 SW 8th Street, Miami, FL 33135 on Thursday, March 29, 2018
at 4:45 pm, we can also meet at your office if you wish. The purpose of the meeting is to
introduce you to our Board of Directors and open a dialogue with you on our upcoming
plans and future goals.

See Ex. A to the Fuller Declaration.

Plaintiff Fuller followed up on April 6, 2018, with the following email:

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Good morning Commissioner Carollo, I hope this email finds you well. Attached is an
invitation the Board of Viernes Culturales extended last month to you and would like to
extend to you once again. Our next Board meeting is Thursday, April 19 at 4:45 pm at
our offices. If you would rather the Board can meet you at your offices. Thank you very
much for your time.
See Ex. B to the Fuller Declaration.

Plaintiff Fuller followed up on August 8, 2018, with the following email:

Dear Commissioner Carollo,

On behalf of the Viernes Culturales board, I would like to extend an invitation for you to
attend our next monthly board meeting. The board strongly values your input in the
planning of its future activations. Our next meeting will be held on Wednesday,
September 20th at 4pm. The meeting will be held at 1637 SW 8th Street. We look
forward to your response.
See Ex. C to the Fuller Declaration.

While the prior emails had been sent by Pati Vargas at the instruction of Mr. Fuller, on

September 28, 2018, Mr. Fuller himself sent an email to Carollo:

Dear Commissioner Carollo,

Viernes Culturales aims to reinforce its mission of promoting Little Havana as well as
being the liaison between the artistic community, residents, businesses, and visitors. As
we approach 2018’s last quarter, we look forward to implementing crucial changes,
enlisting the support of neighbors and business owners, and strengthening important

Our last meeting, which took place on September 19th , welcomed City of Miami Mayor,
Francis Suarez and Esteban Ferreiro, Chief of Staff for Commissioner Manolo Reyes.
They will both appoint a member of their team to attend all board meetings henceforth.
Also in our last meeting, we welcomed Miami Dade College Interamerican Campus
President, Malou C. Harrison, and Miami filmmaker and entrepreneur Joe Cardona as the
new members of the board.

Through the years, Viernes Culturales has had a positive impact on the neighborhood and
the community. The Board of Directors plays a central role in this important work.
Because of your experience and involvement with our community, we invite you to
become a part of this growing tradition. The board strongly values your input.

Our next meeting will be held on Wednesday, October 17th at 3 pm at 1637 SW
8th Street.

We look forward to hearing from you,

Case 1:18-cv-24190-FAM Document 20 Entered on FLSD Docket 11/20/2018 Page 9 of 16

Bill Fuller
Viernes  Culturales  

See Ex. D to the Fuller Declaration.

Despite serving as the City’s Commissioner for Little Havana, Carollo never once even

provided the courtesy of a response to these repeated entreaties. See Fuller Declaration at ¶17.

On August 3, 2018, Plaintiffs were able to take the sworn testimony of Carollo’s former

Campaign Advisor and District Liaison, Mr. Stephen Miro. Even before Carollo had taken any

action against Viernes Culturales, and unprompted by the questioning itself, Mr. Miro explained

that Carollo was secretly planning to shut it down. Id. at ¶18.

When asked merely whether Carollo had any business interests in Calle Ocho, Mr. Miro

responded: “That’s a tricky question and I’ll tell you why; because he wanted to eliminate

Viernes Culturales. So he had his attorney, Ben [Kuehne] open up another corporation of the

Que Pasa Little Havana I believe. You got to check Sunbiz for that, that’s what I believe it’s

called. To take -- take over Viernes Culturales.” When Fuller asked Miro why Carollo would

want to take over Viernes Culturales, Miro replied, “Just because it’s you.” See DE 1-2 at 18,

ll. 13-25 and at 19, ll. 1-19 (emphasis added).

Miro also explained that Carollo had created a “board” for the Que Pasa Little Havana

that consisted of women from the neighborhood. He further explained that Carollo planned to

finance his effort to eliminate Viernes Culturales using City of Miami funds “through his office

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budget” and that he hoped to get additional funds through the budget of the County

Commissioners if his ally Alex Diaz de la Portilla was successfully elected. Id.1

Miro’s testimony proved prescient. As shown by documents produced pursuant to a

public records request, Carollo forwarded the invitations to join Viernes Culturales and help it to

Mr. Miro. Mr. Miro forwarded them to Mr. Kuehne and to an email address See Fuller Declaration at ¶19. Mr. Kuehne then created a

corporation called Que Pasa Little Havana on April 10, 2018, a mere 3 weeks after Mr. Fuller

invited Mr. Carollo to attend the Viernes Culturales board meeting. See Ex. F to the Fuller

Declaration. Mr. Miro, if called to testify, will state under oath that Mr. Carollo never expressed

any concerns about Viernes Culturales until he learned of Mr. Fuller’s involvement (apparently

through Mr. Fuller’s invitations to Mr. Carollo to support the organization).

More importantly, Carollo’s efforts to eliminate Viernes Culturales resumed a few short

weeks after Miro’s testimony when Plaintiffs withdrew their ethics complaint against Carollo.

At that time, in late August 2018, Carollo ordered that Domino Plaza be shut down and

physically barricaded. No public reason was ever given. However, when the security guard at

Domino Plaza was asked why it was shut down, she said it was at the order of the Commissioner.

Asked how she knew Carollo had closed it, she said he had come to the site on Thursday to make

sure it was shut down. Domino Plaza reopened on August 29, 2018, and on Friday, August 31,

2018, just two hours before Viernes Culturales was set to begin, he ordered it shut again. The

excuse was “pothole repair,” but in reality there were only a handful of tiles that had been

removed and needed to be replaced (and their initial removal was probably at the order of

Upon information and belief, Commissioner Carollo may have used City funds to support the
campaign of Mr. Diaz de la Portilla, which if it happened may be illegal and subject Mr. Carollo
to criminal prosecution.

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Carollo). In the midst of all of this, another City Commissioner explained to Fuller that Carollo

was targeting the festival solely to “f*%k with Fuller.” See Fuller Declaration at ¶21.

During the 18-year history of the festival, and right up until October 2018, Viernes

Culturales had never applied for or obtained a special events permit in relation to Domino Plaza,

where a key part of the festival occurs, and, despite its heavy involvement in the festival, the City

has never requested or required Viernes Culturales to pull any type of events permit. The first

time Viernes Culturales applied for a special events permit for use of Domino Plaza was for the

October event. The reason Viernes Culturales did so in that month was because Mr. Fuller had

learned that Commissioner Carollo was planning to apply for a permit for himself for that same

day, in order to block the Viernes Culturales festival. Accordingly, Pati Vargas, the Director of

Viernes Culturales, applied for and was granted a special events permit for the event on the last

Friday of October, 2018. Id. at ¶22-23.

Ms. Vargas had been asked to secure permits for the remaining fourth Fridays of each

month as well. When she submitted the application for the last Friday of November, however,

she was informed by the City that Commissioner Carollo had in fact beaten her to the punch and

filed his application for use of the plaza that same Friday. Id. at ¶24.

Specifically, the City stated: “Please be advise [sic] that at this time you [sic] application

for Viernes Culturales for Domino Plaza can’t be process [sic] since the park has been reserve

[sic] for those days.” See Ex. G to the Fuller Declaration. Plaintiffs have since obtained a copy

of the application Mr. Carollo submitted, which he did on November 8, 2018, one day after the

election. See Ex. H to the Fuller Declaration. The application is submitted in Commissioner

Carollo’s own name, rather than that of Que Pasa Little Havana, and the City Attorney, despite

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being fully aware of Carollo’s retaliatory conduct, has rebuffed complaints from Viernes

Culturales, stating that Commissioners have the right to reserve public spaces whenever they

want. See Fuller Declaration at ¶¶26-27. These new developments appear to be the City

adopting Carollo’s harassment as its own City policy thereby necessitating that Plaintiffs file an

amended complaint to name the City Attorney as one of the John Doe defendants and City of

Miami as a defendant as well.

Commissioner Carollo has not even tried to pretend that his intention is anything other

than destroying Viernes Culturales. In an interview Carollo gave to the Miami Herald for a story

entitled “Joe Carollo wants to force out Viernes Culturales and host his own monthly festival,”

Carollo claimed that Viernes Culturales has become a “tired, lackluster event” that is little more

than a “flea market,” and he “thinks he can do better with food, merchants and music,” and that

this would not be a one time affair but rather, “[w]e’re going to do that every month, to bring

Little Havana back alive again.”2

If Carollo were sincere in, or had any desire at all, to help improve Little Havana, he

would have either (a) accepted the invitations of Viernes Culturales to attend its festivals and

board meetings to discuss ways of expanding its positive impact, or (b) planned his own festival

for one of the other 3 Fridays in each month, or any of the 4 Saturdays in each month, all of

which are free for additional festivals.

Instead, Carollo’s main goal is simply to retaliate against and purposefully harm

Plaintiffs by shutting down Viernes Culturales without any regard for the history of the

institution whose founding was inspired by the City of Miami and supported for more than

eighteen years by the City. Mr. Carollo has also done so without regard to the real harm that his


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actions are causing those who have devoted much of their adult lives to promoting Viernes

Culturales, including its director Ms. Pati Vargas who is emotionally distraught by Carollo’s

actions and has resigned her position as Director because she feels so bad that Carollo filed his

application for the space before she did on behalf of the organization. See Fuller Declaration at



Plaintiffs will not repeat the arguments made in their motion for a preliminary injunction

[DE 5] but rather will incorporate them in full by reference and merely summarize the key points


As to likelihood of success on the merits, the First Amendment “prohibits government

retaliation against a person for exercising his rights to free speech and association, including

supporting the political party and candidates of his choice.” Rodriguez v. City of Doral, 863 F.3d

1343, 1345 (11th Cir. 2017). Since Plaintiffs’ speech and acts were constitutionally protected,

the next step is that “private citizens must establish that the retaliatory acts would deter a person

of ordinary firmness from exercising his or her First Amendment rights.” Bennett v. Hendrix,

423 F.3d 1247, 1252 (11th Cir. 2005). This test does not require Plaintiffs to prove actual injury

because the “claim depends not on the denial of a constitutional right, but on the harassment they

received for exercising their rights.” Id. at 1253.

Carollo’s former employee, Steve Miro, testified under oath when Carollo “took office,

you know, he went after Mr. Fuller, obviously,” and that the reason Carollo did so was “[Fuller]

went against him in the commissioners by donations to -- giving him building,” meaning that

Fuller went against Carollo in the run-off election by supporting his opponent, Alfie Leon, and

allowing Leon to use Fuller’s property to conduct a rally across from the early voting center. See

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DE 1-2 at p. 10, ll. 12-25 and p. 11, ll. 1-13. Miro has also testified that Carollo’s attack on

Viernes Culturales was part of his retaliation against Plaintiffs. Id. at p. 18, ll. 13-25 and p. 19,

ll. 1-19.

Carollo might argue that he has a right to reserve Domino Plaza for a cultural event just

as Viernes Culturales does (i.e., the same argument made by the City of Miami Attorney).

However, it is black letter law that even “[o]therwise lawful government action may nonetheless

be unlawful if motivated by retaliation or having engaged in activity protected under the First

Amendment.” O'Brien v. Welty, 818 F.3d 920, 932 (9th Cir. 2016).

Irreparable harm is established here by Eleventh Circuit precedent, which holds that “[i]t

is well settled that the loss of First Amendment freedoms for even minimal periods of time

constitutes irreparable injury justifying the grant of a preliminary injunction.” Cate v. Oldham,

702 F.2d 1176, 1188 (11th Cir. 1983). The Eleventh Circuit further held that “direct

penalization, as opposed to incidental inhibition, of First Amendment rights constitutes

irreparable injury.” Id.; see also, e.g., KH Outdoor, LLC v. City of Trussville, 458 F.3d 1261,

1272 (11th Cir. 2006) (“the injury in this case constituted ‘direct penalization, as opposed to

incidental inhibition’ of First Amendment rights and thus could not be remedied absent an

injunction”). In addition to this harm, however, it is simply wrong to allow Carollo to steal all of

the good will and branding built by Viernes Culturales over 18 years and the $3 million it has

invested to hold his own festival on the same night in the same location solely to displace and

destroy Viernes Culturales.

The balance of interest clearly favors Plaintiffs. See, e.g., Broward Coalition of Condo.,

Homeowners Assoc. and Community Org. Inc. v. Browning, 2008 WL 4791004, at *14 (N.D.

Fla. Oct. 29, 2008) (“the balance of interests favors the Plaintiffs because the Supreme Court has

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made clear that in any conflict between First Amendment rights and regulation, courts ‘must give

the benefit of any doubt to protecting rather than stifling speech’”). Moreover, there is no harm

to Carollo. He is free to hold his proposed festival on any of the other three Fridays or any of the

other four Saturdays. Viernes Culturales and Plaintiffs herein would even be happy to

coordinate with Mr. Carollo’s festival on any of these other days to ensure its success.

Finally, as the Eleventh Circuit has held, “the public interest is always served in

promoting First Amendment values . . ..” Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257,

1276 (11th Cir. 2001); see also Barrett v. Walker County Sch. Dist., 872 F.3d 1209, 1230 (11th

Cir. 2017); Univ. Books & Videos, Inc. v. Metro. Dade County, 33 F. Supp. 2d 1364, 1374 (S.D.

Fla. 1999) (“[t]he public interest always is served when constitutional rights, especially free

speech, are vindicated”).


Wherefore, Plaintiffs respectfully request that this Court: (a) grant this Motion; (b) enter

an order temporarily restraining Carollo from holding his event on the last Friday of every month

at Domino Plaza; and (c) award Plaintiffs any other relief this Court deems just and proper.


An emergency hearing is necessary on this matter as the Viernes Culturales festival is

scheduled for November 30, 2018 - the same date that Mr. Carollo has blocked out. Plaintiffs

desire the opportunity to present their argument to the Court, including providing live testimony

from Mr. Miro and others if the Court so desires with ample time for the festival to still take

place if the Court were to order such. Plaintiff expects that a hearing on this issue would take no

longer than 2 hours. A copy of the Certification of Emergency is attached hereto at Exhibit 2.

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Respectfully submitted,

2121 NW 2nd Avenue, Suite 201
Miami, FL 33127
Tel: 305.297.1878

By: /s/ Jeffrey W. Gutchess
Jeffrey W. Gutchess (FBN 702641)
Brandon Rose (FBN 99984)

Counsel for Plaintiffs