HomeMy WebLinkAboutSubmittal-Emergency Motion for Temporary Injunctive Relief with NoticeIN THE CIRCUIT COURT OF THE 11TH JUDICIAL CIRCUIT IN AND FOR MIAMI DADE
COUNTY, FLORIDA
GENERAL JURISDICTION DIVISION
CASE NO 07-19493 CA 27
JERIN ASSOCIATES, INC.
A Florida Corporation
Plaintiff,
Vs.
THE CITY OF MIAMI,
Defendant.
ri,,LD ON:
NOV () 8 2007
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SL)BMITTED INTO THI
PUBLIC RECORD FOF
ITEMz �ON/l4-a9
EMERGENCY MOTION FOR TEMPORARY INJUNCTIVE RELIEF WITH NOTICE
The Petitioner, JERIN ASSOCIATES, INC., a Florida Corporation files this, its' Emergency
Motion for Temporary Injunctive Relief with Notice and states:
1.
2.
3.
4.
The underlying action involves an action seeking the issuance of a writ of
mandamus against the City of Miami, its chief legal officer, Jorge L. Fernandez,
Esq. and its chief operating officer, to wit, the City Manager, Peter G.
Hernandez, to compel them to provide Public Records pursuant to repeated
requested brought by the Petitioner under Chapter 119, Florida Statutes, which
requests have been repeatedly made since October, 2006 and have for the
most part been knowingly and purposely ignored by the Respondents since that
date.
The scope of the request involves the Bayview Marketplace Development (the
"Project") and a proposed Height Ordinance for Retail Establishments (the
"Height Ordinance").
The Height Ordinance was introduced on September 6, 2006 as a proposed
benefit to the general public, and was set for final consideration by the City
Commission on December 14, 2006. Petitioner learned of the inappropriate
attempt by the proponent of the Development and by City staff to promote the
Height Ordinance even though it served only to benefit the Development. The
revelation before the Commission led to the Height Ordinance being shelved
forthwith because of the potential political fallout.
One year later, with the City's general election now concluded, City staff and the
Developer seek to have the Height Ordinance heard on November 9, 2007.
The City on behalf of the Developer and of complicit City staff and
administrators, have stonewalled the Petitioner from (a) obtaining relevant
documents directed at establishing the true motive for the Height Ordinance;
and (b) quantifying the legal, technical and practical affect of the ordinance. It is
the City's desire to frustrate the Petitioner from perfecting the legal, technical
and practical arguments against the same at the November 9, 2007 public
hearing on this matter
5. In Daniels v. Bryson, 548 So.2d 679 (Fla. 3`d DCA 1989), the Third District Court
of Appeal held that as a matter of law, injunctive relief is available upon the
showing of a violation of Chapter 119, as the impermissible withholding of
documents otherwise required to be disclosed constitutes, in and of itself,
irreparable injury to the persons making the public request and is an injury not
ordinarily compensable in damages. The City has chosen not to provide Public
Disclosure relevant to a hearing it set on its agenda for November 9, 2007.
6. Accordingly the Petitioner seeks the least burdensome injunctive relief which
would avail the Petitioner of its rights. The Petitioner requests that this Court
enjoin the City of Miami from considering the Height Ordinance until the later of
such time as the Court determines (a) that the City is in compliance with its' duty
to provide Public Disclosure; and (b) the Petitioner is provided reasonable time
to review the Public Disclosure to prepare for the hearing on the Height
Ordinance.
7. By providing the relief sought, the City is not harmed, as all that will occur is that
the consideration of what they describe as general ordinance will be
rescheduled to an appropriate City Commission agenda in the near future.
WHEREFORE, the Petitioner, JERIN ASSOCIATES, INC., moves this Honorable
Court for the entry of a temporary injunction as requested herein.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was sent vial U.S. Mail to Henry Hunnefeld,
Esq., Asst. City Attorney, 444 S.W. 2nd Avenue, 9'1 Floor, Miami, FL 33131 and hand delivered in court on this 8th day of
November, 2007.
Submitted Into the pubic
recordin connection with
Item rz y on I1- 9- 07
Priscilla A. Thompson
ClerkCity
GUY SPIEGELMAN, ESQUIRE
Counsel for Petitioner
28 West Flagler Street, Ste. 400
Miami, Florida 33130
Tel: (305) 373 /Fax:(305) 373-6638
By:
GUY SPILMAN, ESQ.
FL BAR NO 169689
548 So.2d 679
Page 1 of 5
548 So.2d 679, 14 Fla. L. Weekly 1561
District Court of Appeal of Florida,
Third District.
Hattie DANIELS, as Director, Internal Audits and Review Department, and the City of Miami,
Appellants,
v.
William BRYSON and the Miami Association of Fire Fighters Local 587, Appellees.
Nos. 88-1026, 88-1475.
June 27, 1989.
Rehearing Denied Oct. 9, 1989.
Association of fire fighters and its officer filed suit against city seeking to obtain documents pertaining
to a panel appointed to review problems in the fire department, and also seeking damages, and
injunctive relief. The Circuit Court for Dade County, Jon I. Gordon, J., issued permanent
injunction. City appealed. District Court of Appeal, Cope, J., held that: (1) association was not
entitled to a permanent injunction, and (2) enhanced attorney fees based on a multiplier were not
available.
Reversed and remanded.
West Headnotes
j] J KeyCite Notes
-326 Records
s 326II Public Access
v326II(B) General Statutory Disclosure Requirements
:,326k61 Proceedings for Disclosure
326k67 k. Findings and Order; Injunctive Relief. Most Cited Cases
Injunctive relief is available upon an appropriate showing of violation of public records law. West's
F.S.A. § 119.01 et seq.
j21 KeyCite Notes
250 Mandamus
,T-250I Nature and Grounds in General
250k1 k. Nature and Scope of Remedy in General. Most Cited Cases
Writ of mandamus will not lie to prevent future harm.
[31. KeyCite Notes
326 Records
��-326II Public Access
326II(B) General Statutory Disclosure Requirements
: ,,,326k61 Proceedings for Disclosure
<:. •326k67 k. Findings and Order; Injunctive Relief
Submitted Into the pubes
recor, in connection with
item , /Z `f on 11- q- 07
Priscilla A. Thompson
City Clerk
. Most Cited Cases
Permanent injunctive relief was not available to fire fighters association enjoining future violation of
association's right to inspect and examine nonprivileged public records, arising out of special
investigative panels work, because investigative panel had concluded its work and disbanded, and
although past violations were substantiated, there was no finding or showing of a likelihood of future
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548 So.2d 679
violations. West's F.S.A. § 119.01 et seq.
KC
[4] KeyCite Notes
=326 Records
326II Public Access
w, 326II(B) General Statutory Disclosure Requirements
326k61 Proceedings for Disclosure
326k68 k. Costs and Fees. Most Cited Cases
Page 2 of 5
Submitted Into the public
• in connection with
Item Z on it'41-Q7
Priscilla A. Thompson
City Clerk
Possibility of court -ordered enhancement did not convert arrangement, whereby attorneys were
compensated on flat hourly basis regardless of outcome, into a contingent fee, and thus award, under
public records law, of enhanced fee based on the multiplier was not authorized. West's F.S.A. §
119.12.
*679 Jorge L. Fernandez, City Atty., and John J. Copelan, Jr., and Kathryn S. Pecko, Deputy city
Attys., for appellants.
Kaplan, Sicking & Bloom and Kathleen M. Phillips, Donald Feldman, Miami, for appellees.
Before JORGENSON, COPE and LEVY, JJ.
COPE, Judge.
We have for review a permanent Injunction entered by the trial court which directs the City of Miami
and one of its employees *680 to comply with their obligations under the Public Records Law,
Chapter 119, Florida Statutes (1987), with respect to any future request for documents pertaining
to a particular task force report. Because appellees did not make a sufficient showing of likelihood of
future violations of Chapter 119 by the appellants, we reverse.
In 1987 the City of Miami decided to appoint a special investigative panel to review certain perceived
problems pertaining to the Fire Department. Appellees, the Miami Association of Fire Fighters and one
of its officers, requested various documents pertaining to the panel and its work. All of the documents
were concededly non -confidential public records subject to disclosure to any citizen.m1 After
experiencing a series of difficulties in obtaining timely, complete production of the requested
documents, appellees filed suit seeking to obtain the documents and also seeking damages and
injunctive relief.
FN1. Under the terminology of the Public Records Law, all documents in the hands of a
public agency are public records. § 119.011(1), Fla.Stat. (1987). Other provisions of
the Public Records Law then determine whether an exemption precludes the documents'
public disclosure. Id. § 119.07.
At a hearing on July 10, 1987, the trial court granted, in part, appellees' motion for temporary
injunction by ordering production of certain documents appellees had previously requested. The City
complied. In October, 1987 the panel rendered its final report to the City of Miami and disbanded. No
further requests for records were made by appellees with respect to the panel or its work.
in March, 1988 the appellees abandoned their claims for compensatory and punitive damages, and
the case proceeded to trial on the issue of permanent injunctive relief. The trial court found that
there had been intentional noncompliance with Chapter 119, Florida Statutes, and entered a final
judgment which provided, in part:
Defendant, City of Miami, by and through Defendant, Dr. Hattie Daniels, is hereby permanently
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548 So.2d 679
Page 3 of 5
enjoined from further violating the rights of Plaintiffs to inspect and examine non -privileged public
records of the City of Miami under the custody of Defendant, Dr. Hattie Daniels, as those records
pertain directly or indirectly to the matters which were considered by the aforesaid National
Investigative Panel and which were made a part of the Panel's report of October 31, 1987.
The trial court subsequently awarded attorney's fees pursuant to Chapter 119. The City has
appealed the entry of the permanent injunction, as well as the award of attorney's fees.
We cannot subscribe to the City's contention that injunctive relief is not available in actions
brought pursuant to Chapter 119, and the corollary suggestion that the exclusive remedy is
mandamus. The statute in no way specifies the form of the action. See fit; 119.07(2)(b)-(d), 119.11,
119.12, FIa.Stat. (1987). While it is true that plaintiffs frequently elect to employ mandamus, see,
e.g., Michel v. Douglas, 464 So.2d 545, 546 (FIa.1985); Donner v. Edelstein, 415 So.2d 830, 831
1Fla. 3d DCA 1982), the act does not confine them to that remedy.
Kc
f 11 We=have, no-besitation, in,holdtng that'lnjunctive =relief is available upon -an-approp`ri to
sia drag r=a°w18ltitidn rvbf ap G'`"'i`t9: United Faculty of Florida FEA v. Branson, 350 So.2d 489
(Fla. 1st DCA 1977); State ex rel. Dept of Gen. Services v. Willis, 344 So.2d 580 (Fla. 1st DCA
1977). T i ermissible-witt holding of locuments'oth- erwise retlufl- d tO be -disclosed tOtitti113‘ in
and of,,,:it, ,lf, .irre,P, rat e injury`td the person rnaking -the „public records. request: ,Since'thefipurpose `of
Chapter I194is afford -disclosure° of information without delay to any member,ofsthe public
1rtt ing,a-request iondistItitUre prevents access to the information and is an injury ritt ordinarily
-corapensable :in,damages.
f 21 Where -a a lftigant--satisf es the veep rertierits for injunctive lief, "such -relief will lie under the
Public: -Records -Law. Injunctive relief would be appropriate, we believe, where there is a
demonstrated pattern of noncompliance with the Public Records Law, together with a showing of
*681 likelihood of future violations. Mandamus would not be an adequate remedy, as the writ will not
lie to prevent future harm. State ex rel. Fraternal Order of Police v. City of Orlando, 269 So.2d 402
(Fla. 4th DCA 1972), cert. denied, 276 So.2d 54 (Fla.1973).
KC
1.31 While injunctive relief is available in appropriate circumstances, we conclude that appellees
were not entitled to a permanent injunction in the present case. That is so because the investigative
panel had concluded its work and disbanded several months prior to the final hearing in this matter.
Although the trial court found that there had been past violations, there was no finding or showing of
a likelihood of future violations. The controversy was, as a practical matter, moot.
Florida adheres to the rule that "an injunction will not be granted where it appears that the acts
complained of have already been committed and there is no showing by the pleadings and proof that
there is a reasonably well grounded probability that such course of conduct will continue in the
future." City of Jacksonville v. Wilson, 157 Fla. 838, 844, 27 So.2d 108, 111 (1946). In the analog
context of the public meetings law, 286.011, Fla.Stat. (1987),FN2 an injunction was sustained wh
the trial court found that a school board engaged in a regular practice of holding nonpublic meetings
and asserted it was entitled to do so as a matter of right. Board of Public Instruction v. Doran, 224
So.2d 693 (Fla.1969). The Florida Supreme Court stated:
FN2. The public meetings law expressly provides that the circuit court may "issue
injunctions to enforce the purposes of this section upon application by any citizen of this
state." § 286.011(2), Fla.Stat. (1987); see Board of Public Instruction v. Doran, 224
So.2d 693, 699 (FIa.1969).
While it is well established that courts may not issue a blanket order enjoining any violation of a
statute upon a showing that the statute has been violated in some particular respects ( see Moore v.
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548 So.2d 679 Page 4 of 5
City Dry Cleaners & Laundry, 41 So.2d 865 (FIa.1949)), nevertheless they do possess authority to
restrain violations similar to those already committed. See Interstate Commerce Commission v.
Keeshin Motor Express, 134 F.2d 228 (C.C.A.III.1943). This Court may enjoin violations of a statute* C
where one violation has been found if it appears that the future violations bear some resemblance t$1 0(4:
the past violation or that danger of violations in the future is to be anticipated from the course of S
conduct in the past. See National Labor Relations Board v. Express Publishing Company, 312 U.S. m Z�
426, 437, 61 S.Ct. 693,700, 85 L.Ed. 930 (1941). C
Id. at 699-700 (emphasis in original).
While the quoted language is susceptible of the interpretation that a showing of past violations will,
without more, justify entry of an injunction to restrain future violations of the same type, we do not
believe the Doran court intended to paint with so broad a brush. In Doran future violations were
reasonably to be anticipated; here they are not. See generally National Labor Relations Board v.
Express Publishing Co. 312 U.S. 426, 436-37, 61 S.Ct. 693E 700, 85 L.Ed. 930, 937 (1941) ("The
breadth of the order, like the injunction of a court, must depend upon the circumstances of each case,
the purpose being to prevent violations, the threat of which in the future is indicated because of their
similarity or relation to those unlawful acts which the Board has found to have been committed ... in
the past."). While in many contexts, like that of Doran, the circumstances of past violations give rise
to a reasonable inference. that the past course of conduct will continue in the future, on this record it
appears that by the time of the final hearing the controversy was effectively moot. Permanent
injunctive relief therefore should not have been entered, and the final judgment must be reversed.
141 At the final hearing the trial court awarded attorney's fees pursuant to section 119.12, Florida
Statutes (1987). The trial court applied an analysis based on Florida Patient's Compensation Fund v.
Rowe, 472 So.2d 1145 (Fla.1985), and *682 awarded an enhanced fee based on a multiplier. The
appellees' fee agreement provided that they would be compensated at the rate of $90.00 per hour. In
the event statutory fees were awarded by the court, the award would first be employed to reimburse
the client for attorney's fees and costs the client had paid, and any excess would be retained by
appellees' counsel. The trial court set a reasonable hourly rate of $175 per hour, and awarded a
contingency risk factor of 2.5.
As set forth in Rowe and clarified in subsequent cases, "in no case should the court -awarded fee
exceed the fee agreement reached by the attorney and the client." Rowe, 472 So.2d at 1151; see
Perez-Borroto v. Brea, 544 So.2d 1022 (Fla.1989); Miami Children's Hospital v. Tamayo, 529 So.2d
667, 668 (Fla.1988). Where there is a conventional hourly fee agreement, the amount awarded by
the court against the opposing party may not exceed the amount the client would be obliged to pay
his or her own attorney. Thus, in Perez-Borroto, the court could award no more than the hourly and
daily rate which defense counsel could bill his client; the amount of the award could not be enhanced
above that level by application of the Rowe factors. 544 So.2d at 1023; see Rowe, 472 So.2d at
1151.
Appellees argue, however, that their fee is partially contingent within the meaning of Chrysler Corp.
v. Weinstein, 522 So.2d 894, 896 (Fla. 3d DCA 1988), because any recovery in excess of $90 per
hour is contingent upon an award as prevailing party. Chrysler involved a flat $1500 fee, with the
remaining fee contingent on success. Our court concluded that the agreement was for a partially
contingent fee and applied a Rowe analysis. Id. at 896; see First State Ins. Co. v. General Electric
Credit Auto Lease, Inc., 518 So.2d 927, 928 (Fla. 3d DCA 1987).
Within the context of Rowe a contingent fee is one in which "the attorney working under a contingent
fee contract receives no compensation when his client does not prevail...." 472 So.2d at 1151; accord
Quanstrom v. Standard Guaranty Ins. Co., 519 So.2d 1135, 1136 (Fla. 5th DCA 1988). Where, as
here, appellees are compensated on a flat hourly basis regardless of outcome, the possibility of a
court -ordered enhancement does not convert the arrangement into a contingent fee. That is
particularly so where, in the present case, the hourly fee is the fee customarily charged the particular
client. The nominal flat fee in Chrysler is clearly distinguishable, for there the attorneys assumed a
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548 So.2d 679 Page 5 of 5
significant risk of nonpayment. While other partial contingency arrangements may be permissible, see
First State Ins. Co. v. General Electric Credit Auto Lease, the appellees' fee arrangement cannot be
considered contingent within the meaning of Rowe and its progeny. FN3
FN3. Appellees have urged that Glades, Inc. v. Glades Country Club Apartments
Association, Inc., 534 So.2d 723 (Ha. 2d DCA 1988) supports their position. Glades
involved an agreement for a reasonable fee, id. at 724, a circumstance not present here.
Glades would not in any event assist appellees, since the Glades court concluded that a
contingency risk multiplier "is appropriate only in a case involving a totally contingent fee
arrangement with the client...." Id. at 726. On that specific issue Glades is in accord with
the result that we reach.
Since we have reversed the permanent injunction, we must remand for a redetermination of the
hours fairly compensable. Appellees were clearly the prevailing parties at the preliminary stage, and
are entitled to "the reasonable costs of enforcement including reasonable attorneys' fees." §_ 119.12
(1), Fla.Stat. (1987). The City contends that appellees may only be awarded fees for the initial
hearing held before the trial judge. We believe the trial judge is in a better position to make a factual
determination regarding the objectives sought by appellees, the extent of statutory enforcement
obtained, and the time expended in achieving those results. FN4
FN4. We do not express any opinion as to whether any of appellees' time expended after
entry of the temporary injunction is fairly compensable as having contributed to
enforcement of appellees' rights under Chapter 119.
For the reasons stated, the final judgment and the order awarding attorney's *683 fees are reversed.
The order awarding attorney's fees is remanded for a redetermination of the fee award.
Fla.App. 3 Dist.,1989.
Daniels v. Bryson
548 So.2d 679, 14 Fla. L. Weekly 1561
END OF DOCUMENT
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