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HomeMy WebLinkAboutSubmittal-Complaint for Issuance of Writ of MandamusIN THE CICRUIT COURT OF THE 11TH JUDICIAL CIRCUIT IN AND FOR MIAMI DADE COUNTY, FLORIDA GENERAL JURISDICTION DIVISION CASE NO 07 -1949 3 CA27 JERIN ASSOCIATES, INC. A Florida Corporation Plaintiff, Vs. THE CITY OF MIAMI, PEDRO G. HERNANDEZ AND JORGE FERNANDEZ Defendant. COMPLAINT FOR ISSUANCE OF WRIT OF MANDAMUS PURSUANT TO RULE 1.630, FLORIDA STATUTES, REQUIRING THE CITY OF MIAMI BY AND THROUGH, PEDRO G. HERNANDEZ AS CITY MANAGER AND JORGE FERNANDEZ, CITY ATTORNEY TO COMPLY WITH A PUBLIC RECORDS SEARCH REQUEST, PURSUANT TO SECTION 119, FLORIDA STATUTES The Plaintiff, JERIN ASSOCIATES, INC., a Florida Corporation ("JA") sues the City of Miami, a municipal corporation under Florida Law (the "City"), the Hon. PEDRO G. HERNANDEZ, ("PGH") solely in his capacity as corporate manager for the City and JORGE FERNANDEZ, City Attorney ("JF") solely in his capacity as City Attorney for the City and as grounds thereof states as follows: 1. This is an action pursuant to Rule 1.630, Florida Rule of Civil Procedure, seeking the issuance of a writ of mandamus for the enforcement of Section 119, Florida Statutes (the "Public Records 1 Act"), compelling the City, PGH and JF to comply with a public records request. 2. Plaintiff JA, is a Florida Corporation doing business in Miami Dade County, Florida. 3. Defendant, City is a municipal corporation organized by the Florida Legislature as the official, constitutional governing body of that certain municipality known as the City of Miami, located in Miami - Dade County, Florida. 4. Defendant, PGH is the corporate manager for the City and is sued solely in that capacity. In that capacity, he directly supervises and has jurisdiction over all City administrative departments, including the City's Building, Zoning and Planning Departments. 5. Defendant, JF is the chief legal officer for the City, commonly referred to as the City Attorney and in that capacity oversees all legal matters for or involving the City. 6. JA owns a parcel of real property (the "Jerin Property") located in the City. 7. Immediately to the east and west of the Jerin Property, BDB Miami, LLC ("BDB") has been engaged since 2002 in the assemblage of real estate parcels ostensibly directed at the construction of the Bayview Marketplace (the "Project"). 8. In 2005, BDB received approval of a Major Use Special Permit (the "MUSP") for the Project on the properties immediately east to but Submitted Into the public recor connection item rt. on Priscilla A. Thompson City Clerk 2 adjoining the Jerin Property (the "MUSP Property"). The MUSP approval was joined with a separate but related request for a twenty foot (20') height variance (the "Variance"). 9. Sometime thereafter, for purposes still not known or quantifiable, BDB acquired the properties immediately to the west of, and adjoining the Jerin Property (the "West Assemblage"). 10. The Jerin Property completely separates the MUSP Property and the West Assemblage. 11. Jerin objected to certain attempts by BDB to extract development rights which were not permitted under the City Code, by among matters objecting at the Zoning Appeals Board, Planning Board and City Commission hearings on the MUSP. For reason not supported by law, and apparently solely political in nature, each of the aforementioned Boards and the Commission voted for approval of the MUSP and the Variance. 12. Jerin appealed the MUSP approval and the Variance to the Circuit Court under its first tier appellate jurisdiction and prevailed, with the Circuit Court striking down the Variance improperly approved by the City. 13. BDB appealed the Circuit Court appellate decision to the Third District Court of Appeal which summarily affirmed the Circuit Court and held that the Variance was improper and must be stricken. Submitted Into the public dinwith item Ll0 Priscilla A. Thornpson :�i City Clerk 3 14. During the MUSP consideration and during the consideration by the Circuit Court and the Third District Court of Appeal of the appeals of the MUSP approval, JA became aware that BDB was attempting to effectuate developmental orders in private, if not clandestine efforts with non -elected, senior staff of the City's Zoning and Planning Departments. 15. Included in such attempts were efforts by BDB's legal counsel to create a height ordinance (the "Height Ordinance") specifically for the benefit of the Project, with the goal of secretly emasculating the Circuit and Appellate Court's denial of the Variance. Once uncovered, that stealth initiative was shelved. 16. Separately, again, in an effort directed at emasculating the Circuit and Appellate Court's denial of the Variance and upon information and belief, in order to modify the MUSP approval to meet new tenant requirements, that same legal counsel sought to modify the MUSP, without the codified review by the City Commission, by engaging the Zoning Administrator and the Planning Director to issue an approval, under the guise of a "non -substantial modification", a procedure permitted under the City Code, when the request is "diminimus". If successful, the required review of the MUSP Modification by the City Commission, and therefore the affected citizens of the City of Miami would be thwarted. Submitted Into the public in connection with item Zon j - y - 01 Priscilla A. Thompson Cky Clerk 4 17. JA learned of the clandestine attempts by BDB, with the assistance of the Zoning Administrator and the Planning Director, to obtain City Commission approval of the Height Ordinance as well as the issuance of the non -substantial MUSP modification in a manner intended to exclude the public from their codified right to participate in the proceedings which require City Commission approval. 18. Through the foregoing machinations, JA, through its registered lobbyist, Saul Cimbler, president of Strategic Consulting Group, Inc. consistently sought the disclosure of public records (the "Records") regarding the Bayview Marketplace, as well as other developmental initiatives in the City. Those requests were made in writing and verbally to the appropriate City staff member. 19. The Records contain material regarding the Project and related matters, prepared in connection with official City business which was intended to perpetuate, communicate or formalize knowledge of some type. 20. Under § 119.011(1), Fla. Stat. (2006) the City was required to produce all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software, or other material regardless of the physical form, characteristics, or means of transmission, made or received pursuant to law or ordinance or in connection with the transaction of official business by the City including electronic communications, (i.e., emails.) Submitted Into the public in connection with item on t [ - q s Priscilla A. Thompson . City Clerk 21. Consistently, from on or about October 1, 2006 to the date of this Writ for Mandamus, Jerin made repeated demands under the Public Records Act for the Records. 22. The City's Building, Zoning, Planning and Legal departments as well as the City Manager's office refused or failed to provide the Records requested., instead establishing an administrative labyrinth directed at thwarting the Plaintiff from seeking the Records or making it so tedious and costly for the Plaintiff to obtain the Records, that through attrition, the request for the Records would be abandoned. 23. Included in those evasive actions were (a) denial of the existence of routine records by the Legal Department, as well as the failure or refusal to produce documents in its possession or control; and (b) the sophomoric response to an electronic document request, in which the City Manager's office provided over 16,000 emails containing, for the most part, recipes, resumes, pornographic and otherwise inappropriate jokes and references, and otherwise emails which were by design, patently non -responsive and evasive. 24. Florida law establishes that the Public Records Act is to be liberally construed "in favor of 'open government to the extent possible in order to preserve our basic freedom, without undermining significant governmental function such as crime detection and prosecution.' " Tribune Co. v. Public Records, 493 So.2d 480, 482 Submitted Into the public nection with items�„on I l " - 07 6 Priscilla A. Thompson City Cleric (Fla. 2d DCA 1986) (quoting Bludworth v. Palm Beach Newspapers, Inc., 476 So.2d 775, 779 (Fla. 4th DCA 1985)). 25. To this end, Florida law establishes that exemptions from disclosure are to be construed narrowly and limited solely to their stated purposes. See Miami Herald Publ'q Co. v. City of North Miami, 452 So.2d 572, 573 (Fla. 3d DCA 1984) 26. Florida law further establishes that "when in doubt the courts should find in favor of disclosure rather than secrecy." Bludworth, 476 So.2d at 780, n. 1 27. In the instant case, no exemption exists permitting the City to avoid the disclosure of the Records nor is the Plaintiff aware of any significant governmental function such as crime detection and prosecution which would be impeded by the granting of this Writ. 28. As, respectively, the corporate manager for the City and the chief legal officer, Defendants PGH and JF are charged with the responsibility of assuring that their respective departments provide the Records. 29. PGH, JF and the City have knowingly failed or refused to provide the Records. 30. The Plaintiff has been required to bring this action to compel the production of the Records and is entitled to an award of its' attorneys' fees. Submitted Into the public rector in connection with item V Z' on I - 07 Priscilla A. Thompson City Clerk WHEREORE, the Plaintiff, JERIN ASSOCIATES, INC., moves this honorable court for the issuance of a Writ of Mandamus, compelling the production, forthwith of the Records Dated this 27th day of June, 2007. GUY SPIEGELMAN, ESQUIRE Counsel for Plaintiffs 28 West Flagler Street, Ste. 400 Miami, Florida 33130) Tel: (305) 373-663/ Fax:(305) 373-6 By: GU'P,(E GELMAN, ESQ. FL BAR 4O 169689 SUBMITTED INTO THE PUBLIC RECORD FOR 1TEMzL+_QN-T-o7. 8