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HomeMy WebLinkAboutItem #22 - Discussion Item0 CITY OF MIAMI. FLORIDA l INTER -OFFICE MEMORANDUM } TO Honorable Mayor Maurice Ferre DATE January 21, 1985 FILE: and Member o the City Commission SUBJECT. Status and Disposition of Litigation FROM Lucia . DOu erty REFERENCES: City Attorney ENCLOSURES: In an effort to keep you fully informed as to the disposi- tion of cases in the City Attorney's Office, the following status report has been prepared to update our memorandum of October 23, 1984: 1. Marshall Frey�v. City of Miami, et al. Eleventh JudicialCircuit Court Case No. -10686 On October 10, 1982, the plaintiff, while on a motorcycle, collided with a barricade set up approximately 10 feet south of the intersection of Florida Avenue and Mary Street, Coconut Grove. The barricade was placed by the Coconut Grove Bicycle Race Association and expert testimony revealed that the placement of the barricade did not conform to the State and Federal department of Transportation standards. There was testimony that the police department never advised the race officials as to proper placement of the barricade, and additionally, there was testimony that there were both on -duty and off -duty police officers in the area during the time of the incident. This case was tried before a jury starting November 26 through November 28, 1984, before the Honorable George Orr. The jury returned a verdict of $150,000 total damages to plaintiff, with 50% comparative negligence attributable to plaintiff, and 50% comparative negligence to the sponsors of the bicycle race. The City of Miami obtained a defense verdict. This case was prepared and tried by Richard L. Druks, Assistant City Attorney. 2. Greqory Walker v. City of Miami, Officer John Rack and Officer gobert Miller ElevenEN 3u3icialCircuit Court Case No. 81-1071 Plaintiff, Gregory Walker, sued the City of Miami and the two wise �ssiDN i Honorable Mayor Maurice Ferre and January 21, 1985 Members of the City Commission Page 2 individual police officers for assault and battery, excessive force, negligent supervision, hiring and retention, failure to provide police protection, intentional infliction of emotional distress, and violation of civil rights. These allegations included claims for compensatory and punitive damages. Upon the Defendant's, City of Miami, motion all counts were dismissed by the Honorable Donald Stone. Since the fact that the applicable Statute of Limitations has run, plaintiff is now barred from proceeding forever. Defense in this case was handled by Richard L. Druks, Assistant City Attorney. 3. William Bostic v. City of Miami, Officer William Hill and Officer R. Castillo`+ Unite States District Court, Southern District Case No. 84-0956 Plaintitff, William Bostic, sued the City of Miami and the individual police officers for violation of civil rights, assault and battery, and false arrest. Plaintiff claimed the police violated his constitutional rights by illegally entering his home, illegally conducting a search and seizure, and beating him about the face'and body. Upon defendant's motion to dismiss the complaint, the Honorable James W. Rehoe dismissed it and it is now anticipated that plaintiff will not be able to refile and proceed due to the time constraints of the applicable Statute of Limitations. This case was assigned to and handled by Richard L. Druks, Assistant City Attorney. 4. Jorge & Doris Martinez v. City of Miami The plaintiff's van was struck by a City of Miami Solid Waste Department truck that was backing up into an intersection. The plaintiff did not appear to be injured at the scene of the accident. The next day, however, he began seeing Dr. Oscar Rodriguez who later referred him to Dr. Pedro Musa-Ris. Both Doctors testified in depositions that the plaintiff suffered of post traumatic head injury syndrome, which included complaints of headaches and dizzy spells. I I►1. • Honorable Mayor Maurice Ferre and January 21, 1985 Members of the City Commission Page 3 One month after the accident the plaintiff fell in the driveway of his brother's home and dislocated his right shoulder. He claimed to have fallen as a result of suffering a dizzy spell. Shortly thereafter, he moved out of state and was treated by Dr. Marc Adlen in Pennsylvania. Dr. Adlen testified in deposition that as a result of the shoulder dislocation the plaintiff was no longer able to work in his usual employment as plumber. An independent medical examination was made by Dr. Arturo Ortiz. Dr. Ortiz also found that shoulder dislocation to be a disabling injury, which may require surgery to prevent future dislocations. None of the doctors gave plaintiff an impairment rating. Since at the time he suffered the dislocation the plaintiff had been taken by a Metro -Dade Rescue Unit to the emergency services at Coral Reef Hospital, both the rescue and hospital records were obtained. They disclosed that the plaintiff claimed to have dislocated his shoulder while getting out of a parked jeep. At trial both the emergency room physician and rescue officer testified that they would have asked the patient why he fell and if he had indicated it was due to a dizzy spell their records would so reflect. The doctor further testified that he would have conducted a number of additional tests if the plaintiff had told him he had suffered a dizzy spell. The plaintiff claimed to have suffered damages, past and future, in the form of lost wages and household services ranging from $200#000 to over $500,000. This was testified by an economist. After three hours of deliberations the jury found the plaintiff ` 80% negligent and the City 20%. The total damages were established by the jury to be $13,320.20. The City's share is $2,664.04. (Ana Maria Carnesoltas handled the trial). S. Edilio Hernandez, and Sheldon Cohen v. City_of Miami and Herbert Breslow, as Z!hlef 5f Po ice. EleventS Ju2icial CircGit Case No. 84-44772. Plaintiffs sued the City as a consequence of Mr. Hernandez' arrest for selling non-food items in the downtown Restricted Vending District. W Honorable Mayor Maurice Ferre and January 21, 1985 Members of the City Commission Page 4 Under the provisions of Ordinance No. 9880, passed and adopted by the City Commission on September 13, 1984, a specified large portion of the downtown central business district is designed Restricted Vending District. The Ordinance regulates the types of goods and the locations from which these goods may be sold on the sidewalks within the Restricted Vending District. Plaintiff, Edilio Hernandez, was arrested when he attempted to peddle his wares in contravention of the Ordinance. As an immediate consequence of the arrest, the Plaintiff sued the City challenging the constitutionality of the ordinance on equal protection grounds, and sought a Temporary Restraining Order and Declaratory Judgment. a After an Emergency Hearing before Circuit Court Judge Phillip Knight December 51 1984, the Court ruled for the City, holding that the Plaintiff had not met his burden of overcoming the presumption of validity that attaches to a properly enacted ordinance. On December 6, 1984, the Plaintiff requested a re -hearing and the Court again ruled for the City finding that: a. The City had made a temporary showing of a rational basis for making a distinction between types of activities which may be conducted on public right-of-ways. b. The protection and facilitation of streets and sidewalks of the congested downtown central business district is within the purview and ambit of the City of Miami's Police Powers, inasmuch as it promotes the health, safety and welfare of users of said streets and sidewalks. c. That the promotion of activities designed to promote tranquility, appearance and well-being of the streets and sidewalks was a valid exercise of the police powers. d. The City had shown that Ordinance 9880's distinction between types of goods which could be y i 4 2 Honorable Mayor Maurice Ferre and January 21, 1985 Members of the City Commission Page 5 sold was a reasonable exercise of its police powers because it protected pedestrians from problems caused by the two types of economic activities. The Court, however, reserved jurisdiction for a full and complete hearing to determine if Section 39-17(a) of Ordinance 988Q, which prohibits the sidewalk sale of any goods in the central business district other than food and fresh cut flowers, was reasonable and not arbitrary and formed a rationale relationship to the achievement of legitimate governmental interest. On December 12, 1984, a full evidentiary hearing was held before the Honorable Joseph P. Farina to determine if in fact there was a constitutionally accepted rational basis for the City's actions in permitting sidewalk activity of one type on the streets and sidewalks of the City to the exclusion of other types of activity. On January 2, 1985, Judge Farina ruled for the City, denying the Plaintiffs' Motion for Temporary Restraining Order and Declaratory Judgment. The case was assigned to and handled by Joel E. Maxwell, Assistant City.Attorney, 6. William S. Anderson, et al. v. City of Miami United States District Court, Southern District of Florida, Case No, 84-1835-Civ-Atkins Plaintiffs in this case filed a complaint raising allegations of reverse employment discrimination relating to promotional practices in the City of Miami Department of Fire, Rescue and Inspection Services. The City of Miami filed a Motion to Dismiss which was granted by the Court. In dismissing this suit the Court held that the claims alleged were in effect an impermissible collateral attack on the consent decree entered by Judge Kehoe in U.S.A. v. City of Miami, Case No. 75-3096-Civ.-JWK, United 9tates-bistrict court, Southern District of Florida. This case was assigned to and handled by A. Quinn Jones, III, Deputy City Attorney. 40 Honorable Mayor Maurice Ferre and Members of the City Commission 7. Tigertail Association, Inc. Club, Inc., vs. South Florida Re ay Plaza, Lt . , an -the city FE M� Circuit Court Case No. 85-00486. January 21, 1985 Page 6 and the Coconut Grove Civic 716na Planning Counci , Grove ami. The Plaintiff sued the City and other Defendants in a complaint for Emergency Injunctive Relief in an effort to halt hearings before the South' Florida Regional Planning Council on "Terremark," a proposed Development of Regional Impact in the Coconut Grove Area, and to prohibit the City Commission from conducting scheduled Public Hearings on the issuance of a Major Use Special Permit and Development Order at its scheduled meeting of January 24, 1985. It was Plaintiffs' contention that Florida Administrative Code Provisions pertaining to public participation in the Development of Regional Impact process had not been complied with; that Public Agency Defendants had not notified the public of the receipt of the Notice of Filing of the Application for Develop- ment Approval, and the net effect of the aforementioned actions constituted a violation of the Florida Sunshine Law. After an emergency hearing before the honorable Judge Mario Goderich, the Court ruled for the City and the Developers, and denied the Plaintiffs' request for a Temporary Restraining Order. The Plaintiffs then appealed Judge Goderich's decision to the Third District Court of Appeal and sought additional relief in the form of an Emergency Petition for Writ of Prohibition. The Third District Court of Appeal upheld Judge Goderich's Order and refused to issue the Writ of Prohibition. This case was assigned to and handled by Joel E. Maxwell, Assistant City Attorney. 8. Joseph Robbie, et al vs._City of Miami Supreme Court Case No. - . The Florida Supreme Court granted certiorari in this case with oral argument scheduled for March 8. I Honorable Mayor Maurice Ferre and January 21, 1985 Members of the City Commission Page 7 9. South Florida Literary vs. City of Miami The Third District reversed the Circuit Court which had ruled in favor of the City. We will ask the Florida Supreme Court to review the decision of the Third District which requires expert testimony to prove that material is obscene in injunction actions against stores which sell magazines and movies of such ilk. 10. Swift v. City of Miami This case was a false arrest case where the arresting police officer was no longer with the department, presented a very bad appearance and was very difficult to get a hold of during the preparation for trial. The jury returned a $50,000.00 verdict in favor of the Plaintiff. We have appealed the decision to the Third District Court Appeal. 11. Amoco v. City of Miami The Third District Court of Appeal has denied our Petition for Writ of Commonlaw Certiorari to that court to review the over- turning of this Commission's actions in preventing Amoco from remodeling their gasoline. There are no further appeals availa- ble and the City has to abide by the Court's ruling. -' 12. Williams and Hampton v. City of Miami and William R. Smith This case was a sexual harassment and civil rights case filed against a former City employee and the City as his employer. The City employee filed a cross claim against the City and the Plaintiffs for conspiracy and civil rights violation. The City filed a cross claim for indemnity against the employee. After a two week jury trial in federal court, the jury found for the Plaintiffs on all counts against William R. Smith and issued an advisory opinion as to the Title VII claim against the City as the employer. In William R. Smith's cross claims against the r City and the Plaintiffs the jury found for the City and the Plaintiffs. The judge ruled in the City's favor on the civil rights complaint and has not ruled as of yet on this Title VII matter. Honorable Mayor Maurice Ferre and January 21, 1985 Members of the City Commission Page 8 13. Forfeiture From January 1, 1984 to December 1, 1984, the City of Miami obtained the following monies and property pursuant to forfeiture proceedings: $620,017.00 in U.S. currency 17 motor vehicle 2 boats 5 Units Radio Equipment 27 Firearms 2 Calculators 1 Tape Recorder 116 pieces Sterling Silver ($3,000.00 est. value) Pending forfeiture cases include: $633,704.00 35 motor vehicles 7 guns 4 boats Radio Receiving Equipment GC/wpc/ab/057 cc: City Manager City Clerk