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Filing # 92365642 E-Filed 07/11/2019 12:25:33 AM

IN THE CIRCUIT COURT OF THE


11TH JUDICIAL CIRCUIT OF
FLORIDA IN AND FOR MIAMI-
DADE COUNTY, FLORIDA
GENERAL JURISDICTION
DIVISION
CASE NO: _______

PETER EHRLICH,

Plaintiff,
v.
CITY OF MIAMI, a Florida municipal corporation,
Defendant.

COMPLAINT

Plaintiff Peter Ehrlich, by and through his undersigned counsel, brings this Complaint against

Defendant City of Miami and in support thereof alleges the following upon information and

belief:

1. A central feature of American democracy is engaged citizens participating in public

debate of civic issues. Public comment provides one of the most important avenues for citizens

to contribute to the debate on matters of public concern.

2. This Complaint alleges that the City of Miami unconstitutionally and illegally prevented

Plaintiff from attending and speaking at the Pallot Park Community Meeting on June 11, 2019.
JURISDICTION AND VENUE

3. Plaintiff Peter Ehrlich is, and at all times material hereto has been, a natural person and

resident and citizen of the City of Miami and Miami-Dade County, Florida.

4. The City of Miami is a Florida municipal corporation located entirely in Miami-Dade

County, Florida.

5. This action seeks declaratory relief and is brought pursuant to Chapter 86 of Florida

Statutes, Declaratory Judgments. This Court has jurisdiction over this action pursuant to Fla.

Stat. §§ 86.011, 86.021, 86.101.

6. Venue appropriately lies in this Judicial Circuit pursuant to Fla. Stat. § 47.011 because

events giving rise to this cause of action occurred in the City of Miami in Miami-Dade County.

7. The City of Miami Citizens' Bill of Rights contained in the Charter of the City of Miami

provides:

(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…
guarantees the following additional rights to its Citizens:
...
3. 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.
8. The City of Miami Citizens' Bill of Rights provides the following remedies for violations:

(C) 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
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his or her office or employment.

9. There is a bona fide and actual dispute between the parties and there is a present and

practical need for the declaration requested.

10. The dispute set forth herein involves a present, ascertainable set of facts and the rights,

powers or privileges of the parties depend upon the facts stated and the law applicable to the

facts. The relief sought herein is not sought merely for the purpose of providing legal advice or

to satisfy curiosity.

11. All conditions precedent to the bringing of this action have either been performed by

Plaintiff or have otherwise occurred.

FACTUAL ALLEGATIONS

12. Defendant City of Miami on June 11, 2019 emailed an invitation to residents to attend a

“Albert Pallot Park Community Meeting” (the “Meeting Invitation”) at the Miami Bay Club

Condominium, which is located immediately north of Pallot Park.

13. E. Albert Pallot Park is a three acre City of Miami Park located on Biscayne Bay at 3805

NE 6th Ave just north of the Julia Tuttle Causeway.

14. The Meeting Invitation was created by the City of Miami Parks and Recreation

Department.

15. The Meeting Invitation was emailed from City of Miami employee Shellande Janvier’s

official city email account (sjanvier@miamigov.com) to City of Miami employee Cynthia Cruz

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(ccruz@miamigov.com) and City of Miami Parks Director Lara Hamwey

(lhamwey@miamigov.com) and blind copied residents of the City of Miami, including Plaintiff.

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16. The Meeting Invite reads:

You are invited to a community discussion concerning Albert Pallot Park, at the
Miami Bay Club, 551 NE 39th St. Miami, FL 33137, in the Bayfront Beach Club
Room, on Wednesday, June 12th at 6:30 p.m. Stop in for discussion regarding
recent improvements to Albert Pallot Park and the upcoming re-opening of the
park for your enjoyment.

Please enter property by going through the guard booth and advising them that you are
attending the meeting in the Miami Bay Club.

Shellande "Shay" Janvier


Administrator
City of Miami / Upper Eastside N.E.T.
6599 Biscayne Blvd.
Miami, FL 33138
(Office) - (305) 960-5118
(Fax) - (305) 400-5431
sjanvier@miamigov.com

Remember to take your heart to work.

Unless noted as “Florida Statute: 119 Exempt”, all emails sent and received through the City of Miami’s email system are
considered public record. The Florida Public Records Act (FPRA) requires the City to make all public records available for
inspection and to provide copies upon request. Please govern yourself accordingly.

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17. The City of Miami’s invitation to the general public to attend the Community Meeting
was also distributed on both the City of Miami and City of Miami Parks and Recreation
nextdoor.com pages:

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18. The Meeting Invitation set forth City of Miami phone number 305 416 1300 to call “For

more information.” This phone number is answered by a City of Miami employee in a City of

Miami office.

19. The Meeting Invitation was also distributed on the City of Miami Parks and Recreation

facebook page:

20. Plaintiff arrived as instructed by the Meeting Invitation at the Miami Bay Club at 6:15pm

and at the entrance to the condo were three City of Miami police cars, five police officers and

two private security guards.

21. Plaintiff presented his driver’s license when asked for identification by one of the

security guards at the guard booth.

22. After confirming Plaintiff’s identity, the security guard informed Plaintiff that he would

not be allowed to attend the meeting.

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23. Plaintiff was prevented from attending the Community Meeting by Defendant City of

Miami and its officers, agents, employees, contractors, and servants (hereinafter referred to as

“Agents”) because Plaintiff has been critical of the proposed changes to Pallot Park and had been

quoted in the Miami Herald and other media outlets regarding his criticism.

24. Al Crespo, a blogger who writes about municipal governance issues in the City of Miami

and other communities, was also denied entry to the meeting by the security guard.

25. Plaintiff and Al Crespo were instructed that they were not allowed to remain on Miami

Bay Club property and asked to leave.

26. Three City of Miami employees were in attendance at the meeting:

Lara Hamwey, City of Miami Parks & Recreation Department Director


Daniel Prats, district liason for City of Miami Commissioner Ken Russell; and
Hector Badia, Assistant Director of the City of Miami’s Office of Capital Improvements

27. City of Miami resident Elvis Cruz was in attendance at the meeting. Before the meeting

began he told City of Miami Parks & Recreation Director Lara Hamwey (who was leading the

meeting) that he had witnessed members of the public being selectively denied entrance to the

meeting, and told Ms. Hamwey that such conduct was illegal.

28. City of Miami Parks Director Lara Hamwey ignored these comments made by Elvis Cruz

and began the Community Meeting by making a presentation on the proposed changes to Pallot

Park, and then opened the meeting up to public comment so residents could address the proposed

changes to the Park.

29. All of the acts of Defendant City of Miami and its Agents described herein were executed

and are continuing to be executed by Defendant and its Agents under the color and pretense of

the policy, statutes, ordinances, regulations, customs, and usages of the City of Miami.

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30. An actual and substantial controversy exists between Plaintiff and Defendant as to their

respective legal rights and duties.

31. Plaintiff has no adequate or speedy remedy at law to correct or redress the deprivation of

his rights by Defendant City of Miami.

32. Plaintiff is suffering irreparable harm from the conduct of Defendant.

33. Unless the conduct of Defendant City of Miami is enjoined, Plaintiff will continue to

suffer irreparable Injury, as City of Miami officials, including City of Miami Commissioner Ken

Russell, have repeatedly stated that “this was a private meeting” and have publicly indicated that

the City intends to continue this unconstitutional conduct.

COUNT I

VIOLATION OF PLAINTIFF’S FREE SPEECH RIGHTS

34. Plaintiff hereby incorporates by reference all stated paragraphs.

35. The First Amendment of the United States Constitution provides that “Congress shall

make no law . . . abridging the freedom of speech, or of the press; or the right of the people

peaceably to assemble, and to petition the Government for a redress of grievances.”

36. The First Amendment is applicable to the City of Miami through the Fourteenth

Amendment to the United States Constitution.

37. Article I, Section 4 of the Florida Constitution states, “Every person may speak, write and

publish sentiments on all subjects… No law shall be passed to restrain or abridge the liberty of

speech or of the press.”

38. Article I, Section 5 of the Florida Constitution states, “The people shall have the right

peaceably to assemble, to instruct their representatives, and to petition for redress of grievances.”

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39. Section A.3 of the City of Miami Citizens’ Bill of Rights provides that “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.”

40. The rights set forth in the First Amendment of the United States Constitution, Article I,

Sections 4 and 5 of the Florida Constitution, and Section A.3 of the City of Miami Citizens’ Bill

of Rights are hereinafter referred to as the “Free Speech Rights.”

41. By reason of preventing Plaintiff from attending and speaking at the Community Meeting

under color of law, Defendant City of Miami and its Agents have deprived Plaintiff of his right

to engage in protected speech in violation of Plaintiff’s Free Speech Rights.

42. Defendant’s restriction on Plaintiff’s speech is content- and viewpoint-based in violation

of Plaintiff’s Free Speech Rights.

43. Defendant’s true purpose for preventing Plaintiff from attending and speaking at the

Community Meeting was to silence the content and viewpoint expressed by Plaintiff’s speech.

44. As a direct and proximate result of Defendant’s violation of Plaintiff’s Free Speech

Rights, Plaintiff has suffered irreparable harm, including the loss of his constitutional rights,

entitling him to declaratory and injunctive relief and damages.

WHEREFORE, Plaintiff respectfully prays that the Court grant the relief set forth hereinafter in

the Prayer for Relief.

COUNT II
VIOLATION OF PLAINTIFF’S RIGHT TO EQUAL PROTECTION

45. Plaintiff hereby incorporates by reference all stated paragraphs.

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46. The Equal Protection Clause of the Fourteenth Amendment requires that the Defendant

City of Miami treat similarly situated persons and groups equally.

47. The Defendant City of Miami and its Agents denied Plaintiff entry to, and an opportunity

to speak at, the Community Meeting, while allowing other similarly situated residents to attend

and speak at the Community Meeting.

48. The Defendant City of Miami and its Agents treated Plaintiff disparately when compared

to similarly situated Residents who attended the Community Meeting.

49. By discriminating against the content and viewpoint of Plaintiff’s speech, the City of

Miami and its Agents are treating Plaintiff’s speech differently than other similar situated

residents of the City of Miami that were allowed to attend and speak at the Community Meeting.

50. The Defendant City of Miami lacks a rational or compelling interest for such disparate

treatment of Plaintiff.

51. By reason of preventing Plaintiff from attending and speaking at the Community Meeting

under color of law, Defendant City of Miami and its Agents have unconstitutionally deprived

Plaintiff of the equal protection of the law guaranteed under the Fourteenth Amendment to the

U.S. Constitution.

52. As a direct and proximate result of Defendant’s violation of the Equal Protection Clause

of the Fourteenth Amendment, Plaintiff has suffered irreparable harm, including the loss of his

constitutional rights, entitling him to declaratory and injunctive relief and nominal damages.

WHEREFORE, Plaintiff respectfully prays that the Court grant the relief set forth hereinafter in

the Prayer for Relief.

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COUNT III

VIOLATION OF PLAINTIFF’S DUE PROCESS RIGHTS

53. Plaintiff hereby incorporates by reference all stated paragraphs.

54. The Fourteenth Amendment to the United States Constitution provides that the

government shall not “deprive any person of life, liberty, or property, without due process of

law.”

55. Article I, Section 9 of the Florida Constitution similarly states, “No person shall be

deprived of life, liberty or property without due process of law….”

56. The rights set forth in the Fourteenth Amendment of the United States Constitution and

Article I, Section 9 of the Florida Constitution are hereinafter referred to as the “Due Process

Rights.”

57. The Due Process Rights prohibit Defendant City of Miami from censoring speech

pursuant to arbitrary standards whereby Defendant City of Miami and its Agents make decisions

on whom to allow into the Community Meeting.

58. The arbitrary determination by Defendant City of Miami and its Agents of who should be

allowed to attend the Community Meeting leaves censorship of resident speech to the whim of

Defendant City of Miami and its Agents.

59. The actions of Defendant City of Miami and its Agents toward Plaintiff violate Plaintiff’s

Due Process Rights.

60. As a direct and proximate result of Defendant’s violation of Plaintiff’s Due Process

Rights, Plaintiff has suffered irreparable harm, including the loss of his constitutional rights,

entitling him to declaratory and injunctive relief and damages.

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WHEREFORE, Plaintiff respectfully prays that the Court grant the relief set forth hereinafter in

the Prayer for Relief.

RELIEF REQUESTED

WHEREFORE, Plaintiff respectfully requests this Court enter judgment against Defendant City

of Miami, awarding Plaintiff all appropriate relief, including the following:

(A) Declare that the Defendant City of Miami and its Agents have violated the Free Speech

Rights of Plaintiff under the First and Fourteenth Amendments to the United States Constitution,

Article I, Sections 4 and 5 of the Florida Constitution, and Section A.3 of the City of Miami

Citizens’ Bill of Rights;

(B) Declare that the Defendant City of Miami and its Agents have violated the equal

protection rights of Plaintiff under the Equal Protection Clause of the Fourteenth Amendment to

the United States Constitutions;

(C) Declare that the Defendant City of Miami and its Agents have violated the Due Process

rights of Plaintiff under the Fourteenth Amendment of the United States Constitution and Article

I, Section 9 of the Florida Constitution;

(D) Enter its temporary and permanent injunction enjoining the Defendant City of Miami

from barring residents from attending its meetings in violation of law;

(E) Award damages for the violation of Plaintiff’s constitutional rights against Defendant

City of Miami in the amount of $1;

(F) Award Plaintiff attorney’s fees against Defendant City of Miami;

(G) Award Plaintiff costs pursuant to Section C of the City of Miami Citizens’ Bill of Rights

Defendant City of Miami;

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(H) Retain jurisdiction over this matter to ensure compliance at future meetings by the

Defendant City of Miami with the Court’s orders; and

(I) Grant such other and further relief as the Court deems equitable and just in the

circumstances.

Respectfully submitted,

________/djw/___________
David J. Winker, Esq., B.C.S
Fla. Bar. No. 73148
David J. Winker, PA
2222 SW 17th St
Miami, Fl 33145
305-801-8700
dwinker@dwrlc.com

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