HomeMy WebLinkAboutPre-publication Submittal Kasdin Coffey Letterakerman
September 25, 2018
Nzeribe Ihekwaba
Assistant City Manager
City of Miami
444 SW 2nd Avenue, 10th Floor
Miami, Florida 33130
Neisen O. Kasdin
Joni Armstrong Coffey
Akerman LLP
Three Brickell City Centre
98 Southeast Seventh Street
Suite 1100
Miami, FL 33131
T: 305 374 5600
F: 305 374 5095
Re: Objection to Appeal of Mural Transfer (Permit 18-0041 / 70 NW 37th Street)
Dear Mr. Ihekwaba:
Our firm represents Becker Boards Miami, LLC ("Becker Boards"), a relatively small
privately held outdoor advertising company, and one of four Qualified Applicants under the City
of Miami's Mural Program (the "Mural Program"). Becker Boards has held Qualified Applicant
status under the Mural Program since September 5, 2014, and has consistently complied with
Mural Program rules during its tenure with the City of Miami ("City"). Notably, in addition to having
one of its permits at the City's Police Parking Garage, Becker Boards was recently awarded a
bid to place another one of its permits at the City's Miami Entertainment Complex Building.
Through a combination of its payments of fees and leases on City properties, Becker Boards is
on pace to generate revenues to the City in excess of $1 MM a year.
On March 9, 2018, Becker Boards submitted an application (the "Transfer Application")
to transfer one of its mural permits to the property located at 70 NW 37th Street, which is owned
by the Emilio and Gloria Estefan family ("Estefan Property"). Prior to the City's approval of the
Transfer Application, a neighboring property owner, self-proclaimed centi-millionaire Mr. Phillip
Sylvester of Set Midtown LLC ("Sylvester") and/or his agents met with City officials in an effort
to convince the City to deny the Transfer Application. Despite Sylvester's efforts, on August 13,
2018, the City's Office of Zoning approved the Transfer Application.
On August 28, 2018, Sylvester filed a Notice of Appeal with the City (the "Appeal")
seeking to overturn the City's approval of the Transfer Application. The Appeal vaguely alleges
that "[a]s previously mentioned to members of the City of Miami staff, I formally oppose this
transfer for a myriad of reasons." However, the Appeal fails to state those reasons. Nevertheless,
it is clear that Sylvester's motivation for filing the Appeal is to interfere with Becker Boards'
business operations in favor of his own. Under the Mural Program, no other mural permit can
be located within 300' of the Estefan Building so long as a Becker Boards' mural permit is placed
there. Therefore, Sylvester has filed the Appeal in an attempt to remove Becker Boards from the
Estefan Property so that it can place a mural on its own building next door once he completes
its construction. The Appeal is attached hereto as "Exhibit A."
akerman.com
46464066;1
September 25, 2018
Page 2 of 3
Prior to the City's approval of the Transfer Application, a former City employee threatened
Becker Boards that if it did not withdraw the Transfer Application, they would either appeal its
approval, or work to ensure that that Becker Boards would be banned outright from the City's
mural program. In fact, Sylvester and his agents are so confident in their influence with the City,
that they have even begun to market the walls on Sylvester's building to potential advertisers,
despite not having a mural permit on Sylvester's building or an ability to place one there unless
the City reverses the mural permit transfer or revokes Becker's Qualified Applicant status.
Sylvester's Appeal, however, is devoid of any facts or allegations to warrant either an
overturning of the Transfer Applicant approval or a challenge to Becker Boards' Qualified
Applicant status under the Mural Program. The Appeal merely states in a summary manner that
Becker Boards "is in direct violation of a number of provisions of [the City's Mural Code]," and
that Appellant "look[s] forward to detailing these reasons... in person at the Appeal Hearing."
The dearth of any facts to support the Appeal is enough to dismiss the Appeal on procedural
due process grounds.'
To the extent that the Transfer Approval for the Estefan Property may be appealed,
Sylvester's apparent attempt to bootstrap the Appeal to Becker Boards' status as a Qualified
Applicant is inappropriate. The City Commission is not the proper venue to decide Qualified
Applicant status. Section 62-612 of the Mural Code sets forth specific procedures by which
Qualified Applicant status may be adjudicated and revoked, including "[an adjudication of] non-
compliance by the code enforcement board or [a] special master...." Section 62-12 also makes
clear that the City's Code Compliance department is the intended enforcement mechanism for
the City's mural program, not the City Commission. Furthermore, the City approved Becker
Boards' Qualified Applicant status over four years ago — an appeal of that decision is not
permissible now.
Requiring the City Commission to hear a challenge of Becker Boards' Qualified Applicant
status through the guise of a mural permit transfer appeal would invoke serious policy concerns
for the City. If such a challenge were authorized, the City Commission should expect full-blown
quasi-judicial hearings, complete with witnesses and cross-examination, each time a City
employee completes a ministerial task in relation to a privately disputed mural permit. Moreover,
if the City were to overturn its prior decision to approve Becker's Transfer Application or revoke
Becker's Qualified Applicant status, in addition to having other aggrieved parties like the owners
of the Estefan Property later cry foul, other Qualified Applicants and neighboring property owners
could file an appeal every time the City approves a mural transfer.
' At a minimum, procedural due process requires that appellants state a basis for their appeal, as well
as facts in support thereof, so that interested parties have a meaningful opportunity to respond. The Appeal
fails to meet this basic requirement.
46464066;1
September 25, 2018
Page 3 of 3
It is unclear whether the City's Code of Ordinances even allows appeals of mural permit
transfer approvals, much less to the City Commission. The Appeal fails to cite to any such
authorization. Instead, the Appeal states that it was filed under Section 62-620(f) of the Code,
and purports to be related to a PZAB decision. However, the transfer approval is not subject to
Section 62-620(f) of the City Code and does not relate to any PZAB decision. Nevertheless, the
Appeal has been accepted by the City's Hearing Boards Division, and is scheduled for hearing
by the City Commission on October 25, 2018.
The City should also be aware that Sylvester has, contemporaneously with the Appeal,
filed a lawsuit against Becker Boards in Miami -Dade Circuit Court in connection with this matter.
Becker Boards has asked the Court to dismiss Sylvester's claim with prejudice. Sylvester's Civil
Court Complaint is attached hereto as "Exhibit B." Becker Boards' Motion to Dismiss the
Complaint is attached hereto as "Exhibit C."
For the foregoing reasons, Becker Boards respectfully requests that you confer with the
City Attorney, and that the City reject the Appeal in its entirety with prejudice. If the Appeal is
entertained, Becker Boards requests that the scope of review be limited to the mural transfer
issue only, because the venue is wrong to challenge Becker Boards' Qualified Applicant status
and because the time to appeal Becker Boards' original Qualified Applicant approval has long
expired. Furthermore, if the Appeal is entertained, Becker Boards requests that the City require
Sylvester to state a basis for the Appeal, including factual allegations in support of that basis, as
well as a procedural basis for making such an appeal under the City's Code of Ordinances, so
that Becker Boards and the other potentially aggrieved parties are on notice of the claims of and
have a meaningful opportunity to respond to them. Finally, Becker Boards requests that the City
require Sylvester and his agents to register as lobbyists in this matter, and that those lobbyists
properly identify whose interests they are representing.
If you have any questions or comments, please contact us.
Sincerely,
AKE, LLP
Neisen O. Kasdin
Cc: Victoria Mendez, City Attorney
Emilio Gonzalez, City Manager
Devin Cejas, Zoning Administrator
Olga Zamora, Hearing Boards
Wesley Hevia, Akerman LLP
Jose F. Diaz, Ballard Partners
gow
Joni Armstrong Gaffe/
46464066;1
EXHIBIT A
Set Midtown LLC
iilrrr•
s, ;J
August22nd,2018 28E8AUG 28 AMif: 5 i
City of Miami
Office of Hearing Boards
444 SW 2nd Avenue, 3rd Floor
Miami, Florida 33130
RE: Written Notice of Appeal of the Transfer of Mural Permit 18-0041 "(Permit") to 70 NW 37th St.
Dear Office of the Hearing Boards:
Please accept this Written Notice of Appeal regarding the location change of the above -referenced Mural
Permit to 70 Northwest 37th Street. As an immediately abutting neighbor, the approval of this Mural Permit
directly affects myself and my interests.
As previously mentioned to members of the City of Miami staff, I formally oppose this transfer for a myriad
of reasons. Most significantly, I have reason to believe that the Qualified Applicant holding the Permit is in
direct violation of a number of provisions of Chapter 62, Article XIII, Division 5 of the Code of the City of
Miami, Florida, as amended ("City Code"). I look forward to detailing these reasons, as may be required by
the City of Miami, in person at the Appeal Hearing.
Thank you for your time and cooperation in this matter. I am standing by, should you need anything
whatsoever.
Sincerely,
Phillip Sylvester
Set Midtown LLC
(312) 718-0000
Ops047@Aol.com
.3801 Collins Ave•Apartment 606•Miami Beach, Florida 33140 •
•Phone: (312) 718-0000•Email: 0PS047@aol.com•
haps://secure35.ipayment.com/Miami/my/O/print_version.htm?_...
Department of Finance
Online Payments
Receipt
Your Reference Number:
2018240001-181
08/28/2018 11:47:57 AM
Web_user
TRANSACTIONS
If you have a Transaction ID please click here
2018240001-181-1
$800.00
TRANS ID: 536401
BUSINESS NAME: COM
Fee Payment
$800.00
FEE NAME: APPEAL - PLANNING DETERMINATION/ZONING INTERP
RETATION
PAYMENT
Visa Credit Sale
TOTAL AMOUNT:
$800.00
$800.00
CARD NUMBER: ************8627
FIRST NAME: Ph p
LAST NAME: Sy vester
111I III 111 1111 1111 III
iw
1111
CE20 824000 8
1 of 1 8/28/18, 11:50 AM
APPEALS Planning and Zoning
PLANNING DEPARTMENT, HEARING BOARDS DIVISION
444 SW 2nd Avenue, 3rd Floor • Miami, Florida 33130 • Telephone 305-416-2030
If an appeal period ends on a weekend or a holiday, the appeal period end date will be the close of business the
following business day. • If any appeal is late, missing full payment, missing property owner labels, or missing any
other necessary documents, the appeal cannot be accepted. # Certified list of adjacent property owner labels are
to be prepared by the appellant and submitted at the time of the appeal submission. • Only withdrawal letters shall
be accepted outside of an appeal period. • Rescheduling fees indicated in Section 62-23 (d) shall apply. • Emailed
appeals are not accepted; appeals to be submitted at the Hearing Boards Division, M-F (except holidays), 8 am to
5 pm. # Appeals must be written in English. • Appeal fees are non-refundable.
OZoninq Adm. Interpretation. fSec7.1.2.3 of Miami211 / OPlanninq Dir. Determination fSec7.1.2.2 of Miami2ll/ OCertificate
of Use Appeal fSec7.1.2.1 of Miami2ll Appeal to PZAB (Indicate one):
❑ Yes ❑ No
❑ Yes ❑ No ❑ N/A
❑ Yes ❑ No ❑ N/A
❑ Yes ❑ No ❑ N/A
❑ Yes ❑ No ❑ N/A
❑ Yes ❑ No ❑ N/A
Is it within the 15-day appeal period, from date of website posting?
If No, cannot be accepted. If Yes:
Written Notice of Appeal to Hearing Boards Department
Proof of Payment of applicable fees Sec 62-23(a);
Proof of Lobbyist Registration (If applicable, must provide proof prior to hearing) Sec. 2-654
Valid Power of Attorney (If applicable, must provide proof prior to hearing)
Proof of Board Resolution (If applicable, must provide proof prior to hearing)
0 Waiver fSec7.1.2.5 of Miami21)1 OWarrant Permit Appeal fSec7.1.2.4 of Miami2l1 Appeal to PZAB (indicate one):
❑ Yes ❑ No
❑ Yes ❑ No ❑ N/A
❑ Yes ❑ No ❑ N/A
❑ Yes ❑ No ❑ N/A
❑ Yes ❑ No ❑ N/A
❑ Yes ❑ No ❑ N/A
❑ Yes ❑ No ❑ N/A
Is it within the 15-day appeal period, from date of website posting or PZAB decision?
If No, cannot be accepted. If Yes:
Appeal letter to Hearing Boards indicating Waiver / Warrant number
Certified list of abutting property owners, including across a street or alley Sec. 62-20 (6)
Proof of Payment of applicable fees Sec 62-23(c)
Proof of Lobbyist Registration (If applicable, must provide proof prior to hearing) Sec. 2-654
Valid Power of Attorney (If applicable, must provide proof prior to hearing)
Proof of Board Resolution (If applicable, must provide proof prior to hearing)
OException fSec7.1.2.6 of Miam(211 / OVariance fSec7.1.2.7 of Miami211 OWaiver related to Affordable Housing Trust (only)
fSec7.1.1.1.5(i) of Miami21)1/ MMural Permit f62-620(f) Appeal to City Commission (indicate one):
'Yes ❑ No
id Yes ❑No ❑N/A
LY! Yes ❑ No ❑ N/A
4Yes ❑ No ❑ N/A
❑ Yes ❑ No ❑ N/A
❑ Yes ❑ No ,,i,�,//N/A
LI ❑ Yes ❑ No /A
❑ Yes ❑ No IVN/A
Is it within the 15-day appeal period, from date of PZAB decision?
Note: Decisions by the PZAB related to an appeal of a waiver cannot be appealed to
the City Commission unless it is related to an Affordable Housing Trust matter. Article 7, Diagram 14,
Page 5 of Miami 21
If No, cannot be accepted. If Yes:
Written Notice of Appeal with PZAB Resolution no. to Hearing Boards
Certified list of adjacent owners (labels) within 500 feet Sec 7.1.2.6.c.; Sec 7.1.2.7.e.
For mural permit appeals only: Certified list of abutting property owners,
including across a street or alley
Proof of Payment of applicable fees Sec 62-23(b)
Proof of Lobbyist Registration (If applicable, must provide proof prior to hearing) Sec. 2-654
Valid Power of Attorney (if applicable, must provide proof prior to hearing)
Proof of Board Resolution (If applicable, must provide proof prior to hearing)
Rev. 05-14-2018
From: "Cerrato, Julia" <JCerratoarmiamigovcom>
Date: August 15, 2018 at 5:59:47 PM CDT
To: "oos047(8 aol.com" <oos047@aol.com>
Subject: RE: Mural transfer
Good aftemoon, phillip:
Be advised that the final approval for mural 18-0041 located at 70 NW 37th St was issued on 8113/18. Be advised that the appeal period is 15 clays. You may file a written appeal and appropriate fee with the Office of Hearing Boards located at 444 SW 2nd Ave, 3rd floor,
You may also contact them for an appointment at 305-416-2030, The appeal period ends 8/28118.
Thank you,
Julia D. Cerrato, Assistant Director
City of Miami
Office of Zoning
444 SW 2nd Avenue, 4th Floor
Miami, FL 33130
Telephone: 305-416-1006
jcerrato a@miamigov com
"Serving, Enhancing, and Transforming our Community"
08/22/2018
Date
CITY OF MIAMI
HEARING BOARDS
P 0 BOX 330708
MIAMI, FL 33233-0708
Re: Property Owner's List Within 500 Feet of:
70 NW 37th St.
Street Address(es)
Total number of labels without repetition: 84-4-1 r!,
I certify that the attached ownership list, map and mailing labels are a complete and accurate
representation of the real estate property and property owners within a 500-foot radius of the subject
property listed above. This information reflects the most current records on file in the Miami -Dade
County Tax Assessor's Office. A new list may be provided by the City of Miami Hearing Boards if it is
determined the information is older than six months.
Sincerely,
Signature
SET MIDTOWN LLC
Name or Company Name
3801 COLLINS AVE, APT 606
Address
MIAMI BEACH, FL 33140
312-718-0000
Telephone
OPS047@aol.com
E-mail
70 NW 37th St. Map of abutting properties. Map Taken from City of Miami GIS
Zoning Application.
Ownership list of all four abutting properties.
Legal Description
PRINCESS PARK (6-87)
Block 10, Lots 16 THRU 18
59 NW 36 ST
Mailing Label
TIRRENIA DEVELOPMENTS LLC
5151 COLLINS AVE STE 224
MIAMI BEACH, FL 33140
Legal Description
PRINCESS PARK (6-87)
Block 10, Lots 7 & 8
60 NW 37 ST
Mailing Label
SOUL STUFF CORP
420 JEFFERSON AVE
MIAMI BEACH, FL 33139-6503
Legal Description
PRINCESS PARK (6-87)
Block 10, Lot 15
77 NW 36 ST
Mailing Label
TIRRENIA DEVELOPMENTS LLC
5151 COLLINS AVE STE 224
MIAMI BEACH, FL 33140
Legal Description
PRINCESS PARK (6-87)
Block 10, Lots 10-11-12
78 NW 37 ST
Mailing Label
SET MIDTOWN LLC
3801 COLLINS AVE #606
MIAMI BEACH, FL 33140
EXHIBIT B
Filing # 76394668 E-Filed 08/14/2018 10:14:17 AM
IN THE CIRCUIT COURT OF THE 11 L H
JUDICIAL CIRCUIT IN AND FOR MIAMI-
DADE COUNTY, FLORIDA
CIVIL CIRCUIT DIVISION
CASE NO.:
SET MIDTOWN LLC, a Florida limited
liability company,
Plaintiff,
VS.
BECKER BOARDS MIAMI, L.L.C., an
Arizona limited liability company,
Defendant.
COMPLAINT FOR DAMAGES
Plaintiff, SET MIDTOWN LLC, a Florida limited liability company ("Plaintiff"), by and
through undersigned counsel, hereby files this Complaint for Damages and sues Defendant,
BECKER BOARDS MIAMI, L.L.C., an Arizona limited liability company ("Defendant"), and
alleges as follows:
VENUE AND JURISDICTION
1. This is an action for breach of contract and for damages caused by Defendant to
Plaintiff, and Plaintiff is herein seeking damages from Defendant in excess of $15,000 exclusive
of interest, attorneys' fees and costs.
2. This Honorable Court has jurisdiction to adjudicate this matter pursuant to Article
V of the Florida Constitution, Florida Statutes §26.012 and otherwise.
3. Plaintiff is a limited liability company organized and existing under the laws of the
State of Florida.
Page 1 of 9
4. Defendant is a limited liability company organized and existing under the laws of
the State of Arizona and registered to transact business in the State of Florida.
5. This Honorable Court has personal jurisdiction over Defendant pursuant to Florida
Statutes §48.193.
6. Pursuant to Florida Statutes §47.011 and §47.051, venue in this action is proper in
Miami -Dade County, Florida because a substantial part or all of the events or omissions giving
rise to this action have accrued and/or occurred in said county.
7. All conditions precedent to Plaintiff maintaining this action have occurred, have
been excused or waived or have been made impossible by the actions of Defendant.
BACKGROUND & ALLEGATIONS
8. On or about October 28, 2015, Plaintiff, as lessor, and Defendant, as lessee, entered
into an Outdoor Advertising Lease Agreement (the "Lease") (a copy of the Lease is attached hereto
and incorporated herein as Composite Exhibit "A").
9. The Lease granted Defendant the exclusive right to move a mural permit to and
install mural advertising on Plaintiff s real property located at 78 NW 37" Street, Miami, Florida
33127 (the "Property").
10. In accordance with the Lease, Defendant moved Miami -Dade Mural Permit No.
15-0002 (the "Permit") to the Property.
11. On or about August 12, 2016, Defendant gave Plaintiff notice that it was electing
to terminate the Lease.
12. The Lease provides that termination becomes effective on the date which is 30 days
following receipt of notice to terminate.
Page 2 of 9
13. The Lease further provides that Defendant shall vacate and surrender possession of
the Property to Plaintiff and remove its sign and the Permit from the Property no later than 15 days
following termination of the Lease.
14. Accordingly, based on Defendant's delivery of notice of termination of the Lease
to Plaintiff, pursuant to the terms of the Lease, Defendant was required to vacate and surrender
possession of the Property to Plaintiff and remove its sign and the Permit from the Property no
later than on September 27, 2016.
15. In response to Defendant's threat to not move the Permit from the Property and
prohibit Plaintiff from engaging with any other mural companies, Plaintiff demanded that
Defendant remove the Permit from the Property (the "November Letter") (a copy of the November
Letter is attached hereto and incorporated herein as Composite Exhibit "B").
16. Defendant did not remove the Permit from the Property until the first quarter of
2018.
17. Plaintiff has performed each and every obligation required of it under the Lease.
18. All conditions precedent to the maintenance of this action have occurred, or have
been performed, waived or excused.
COUNT I - BREACH OF CONTRACT
19. Plaintiff re -alleges and re -avers paragraphs 1 through 18 as if fully set forth herein.
20. This is an action against Defendant for breach of contract and damages.
21. The Lease is a valid and enforceable contract between Plaintiff and Defendant.
22. Defendant breached the Lease by failing to remove the Permit from the Property in
accordance with the Lease.
23. Defendant's breach of the Lease was material.
Page 3 of 9
24, Defendant's breach of the Lease prevented Plaintiff from leasing the Property in
accordance with the Miami, Florida Code of Ordinances, Chapter 62, Article XIII, Division 5 as
it pertains to murals (the "Mural Code") to one or more third -party mural cornpanies.
25. Pursuant to Section 62-606 of the Mural Code, the City of Miami will neither: (a)
issue more than one mural permit for the same side of a building; nor (b) issue a mural permit for
any building if said building is within 300 feet of another legally permitted mural oriented towards
the same side of a street or state highway.
26. Defendant purposefully failed to remove the Permit from the Property in order to
prevent Plaintiff from being able to lease the Property to another mural company.1
27. Defendant removed the Permit from the Property only when, in the same time
period, it was able to relocate another permit it held (Mural Permit No. 16-0041) to a neighboring
property at 70 NW 37th Street, Miami, Florida 33127 (the "Neighboring Property") which is less
than 300 feet from the Property, thereby continuing to prevent Plaintiff from being able to lease
the Property to another mural company.2
28. Plaintiff has suffered damages as a result of Defendant's breach of the Lease and
failure to remove the Permit from the Property.3
Defendant knew it was not in compliance with Section 62-606(13) of the Mural Code as it had
terminated the Lease with Plaintiff (as set forth in Paragraphs 11 through 14 of this Complaint)
and not applied to move the Permit from the Property.
2 Since learning of Defendant's request to move Mural Permit No. 16-0041 to the Neighboring
Property, Plaintiff met with the City of Miami, Office of Zoning to discuss its concern and
objection to the proposed granting of Mural Permit No. 16-0041 on the Neighboring Property (a
copy of entails between Plaintiff and the Assistant Director of the Office of Zoning for the City of
Miami prior to said meeting are attached hereto and incorporated herein as Composite Exhibit
LiC,1
3 Plaintiff has and continues to suffer damages as a result of Defendant's continued efforts to
prevent Plaintiff from being able to lease the Building and/or Property to another mural company.
Page 4 of 9
29. Plaintiffs damages include but are not limited to loss of income, loss of revenue
and/or loss of profits from the Property and devaluation of the Property.
30. Plaintiff has retained the undersigned attorneys to whom Plaintiff is obligated to
pay a reasonable fee for services to enforce its rights under the Lease and to pursue this action.
31. The Lease provides that the prevailing party in an action to enforce the Lease is
entitled to reasonable attorney's fees and costs.
WHEREFORE, Plaintiff demands judgment and seeks an order in its favor against
Defendant for:
A. For an award of all damages suffered by Plaintiff as a result of Defendant's breach
of the Lease and failure to remove the Permit from the Property;
B. For an award of interest on amounts due from Defendant to Plaintiff;
C. For an award for Plaintiffs reasonable attorneys' fees and costs for pursuing this
action; and
D. For such other and further relief as this Honorable Court deems just and proper.
RESERVATION OF RIGHT TO AMEND PLEADINGS
Plaintiff reserves the right to amend these pleadings to add any and all claims that it
determines are just and appropriate.
Page 5 of 9
Dated this 13e' day of August, 2018, and respectfully submitted by:
/S/ Derek A. Schwartz
DEREK A. SCHWARTZ, ESQ.
Florida Bar No. 140848
Attorneys for Plaintiff
LAW OFFICES OF DEREK A. SCHWARTZ, P.A.
4755 Technology Way, Suite 205
Boca Raton, Florida 33431
Telephone (561) 981-8089
Facsimile (561) 997-6036
Primary Email: derek(aiderekaschwartzna.com
Secondary Email: derekaschwartz@gmail.com
Page 6 of 9
COMPOSITE EXHIBIT "A"
see attached
Page 7 of 9
O[.1.D()ORAr)VE1t`EISIN€, LEASE .AGREEMENT
This Lease is 'nude and entered into bsi SET MIDTOWN. LLC, a Florida Ignited liability company ["Lessor j. and
BECKER BOARDS MIAMI, L,L.C:., an Arizona limited liabilitycompany (" Lessee': , as of the '?(ifs day of October,. 2015 The
p y
Lessor and Lessee shall include their respective successors and assigns, and they shall be separately referred to as a "party" and
collectively as the "parties.'
WHEREAS, Lessee and Lessor are current a° (mating the provisions Of a perpetual wa#lsign easement iengsteme-tease-tr"
the exterior lxan.it7oti 03 the: esistitw batildirle where the "Sign" (defined, below). would be installed (the "Perpetual Wallsign
!Or\mt.--'egos=,' ).
WHEREAS., the parties desire for Lessee to move one of Lessee's mural permits to the existing building on the "Property"
,V't (defined below) to help ensure the entitlements for th'r Sign, and
WHEREAS. the parties desire to enter into this short-term lease agree rrt.ertt in order to comply with the mu
requirements related to the atbrerneinioned mural pertnit
Pat
NOW. THEKEFORE, for the sum of Ten Dollars and other good and valuable consideration. the sufttciency and receipt of
which are hereby acknowledged, Lessor and Lessee agree as follows.
Lesser leases and grants to Lessee the exclujrve right to use the exterior portion ()like uortlt face (the "Leased Premises" a of
the existnui buitdirig (the 'Building►") which is located on the Property for outdoor advertising purposes only to install. operate and
maintain one advertising mural (the Sign) on the Leased Premises. Lessor may use ail other portions of the Property other than the
Leased Premises for any other legal purpose. Lessor also grants Lessee nonexclusive vehicular and pedestrian ingress and egress
access across the Property to the Leased Premises. Lessee shall at its cost construct, install, repair; maintain and operate the Sign and
pay for all utilities rn the Sign Lessee shall use commercially reasonable and timely of hrts to move Dire or more of its existing murst
permits to the Lca ed Premises For purposes of ihiS Lease. the term "Property'° shall meat. the real property and improvements
located at 78.NW 37 Street. Miami. Honda 3a127. in Miams-J)arie County, Florida with Folio ti 013124 321 }720
The initial term ("initial Term") of this Lease shall be thirty (30) calendar days and shall commence on the date on which
the Iasi parry executes and delivers a fully signed copy of this Lease to the other party. This Lease shall automatically renew for
successive thirty. (301 day periods unless otherwise terminated as set forth herein This Lease rnav alsobe terminated pursuant to the
pro\isions of Florida Statute. Section fl 030) Nat[ ithstnndine, tiny contrary provision herein, either party for any reason tee no
reasons may ter -initiate this Lease on the date which is tt+inv' (30) days following the nOri-terminating patty's recetpt of written notice
of termination front the t.tnunating party. Lf and at such time the parties enter tnto the Perpetual Wallsign scmentisesig-Teem
less, this Lease shall automatically terminate, 1f either party breaches a provision of this Lease and fails to cure the breach five (5)
days following written nonce to cure from the non -breaching party, then. (a) if the non -breaching party is Lessor. Lessor may
accelerate all amounts due to it under this Lease and seek to recover same from Lessee, and may terminate this Lease and/or terminate
Lessee's right to possession hereunder, and pursue any other remedies available under the law: and (b) if the iron-breaehing-party is
Lessee. Lessee may seek specific pertortnence of the terms of' this Lease or to terminate this Lease Upon the earlier tit' default or
termination of this Lease. Lessee shell vacate the Pri party and surtender possession of the Leased Premises to Lessor. and LeSsee
shall remove the Sign from the Leased Premises no later than fifteen (15) days 1^ollowing the termination of this Lease.
Commencing on the date the Sign is approved by the municipality(ies), Lessee shalt pay to Lessor monthly rental payments
equal to -10%of the "Adjusted Cross Billboard Revenues' defused as all advertising revenues [excluding any sates tax and an>
printing and/or posting revenue) received bs Lessee from the Sign during the irnrnediately preceding applicable calendar month or
partial calendar month lest; ang• acid ail City ofMiami (the "city") tees, charges, and payments paid, owed or attributable tci any and all
prior periods; the balance of the payments from the agency/advertising company shall be paid to/retained by Lessee for its services,
All payments to Lessor shall be made on or before the 15th day of each month of the month immediately following Lessee's receipt of
advertising revenue from the Sign.
This Lease shall inure too the benefit of rind lee itinding Morin all heirs. personal representatives. successors and assigns of any
parse to this Lease
Lessee has the sole right to make any necessary applications with, and obtain permits from the applicable governmental
entities for the construction, use. maintenance and removal at' the Sign and any associated structures and lighting. If any action is
brought by any party to this Lease pertaining to this Lease. whether in a court, arbitration, mediation or otherwise, the prevaitinut party
will be entitled to reasonable .attotnev tees and costs 'If any provision of this Lease is found to be unenforceable try a coon the
Page 1 ail
remaining provisartls of tills Lease will neverthelessHim in fitll fOrce and effect This Lease contains all the material terms of the
sgreemertts between the pante:, lt is expressly unde6tooti that neither Lessor nor Lessee is bound byany stipulations. representations
or agreements (oral or wntteu» not contained in thrAease Each party to the Lease has been represented by legal counsel of its own
choosing This L.ease will not be construed for or against any party as a result of this Lease being drafted by one party or its attorney.
This Lease may only be amended in a writing sinned by both parties hereto To the fullest extetu permitted by applicable law, Lessor
hereby waives any statutory landlord's lien and other hen rights against Lessee's property Lessor understands and agrees that. (i) the
terms of this Lease, and Linn' frilly permitted bfr the local governing authorities. the strategies, processes. discussions and
understandings -relating to Lessee s permitting effortrelated to the Sin are proprietary andstrictly confidential. and (lit Lessee would
be darnastai by the unauthoriztxt disclosure of any sticli ;tamers. 'Cheri:flare, Lessor agrees not to disclose or discuss (Dad or written)
any of such matters to any city officials or other third party(ies) unless necessary to transfer Lessee's mural permit to the Leased
Premises.
liotices mum be in writing. and sent Or delivered by e-mail, certified mail. return receipt requested. or private cower, to
the parties AT their addresses sei forth herern, or such Other addresses as the party to receive the notices specifies in writing to the other
puny. Notice sent by certified mail or prate courier shall be deemed received on the date (Actually received or first retbsed for
delivery mad and notice given by personal delivery shall be deerried received on the date of delivery A party may change its address
for the receipt of notices by giving a written nonceof such change to the other party in the manner specified above for giving of
notices. The laws of the State of Florida shall govern the validity, performance and enforcement of this Lease. without regard to any
conflict of law principals rn the conrrar
LESSSOR: LESSEE:
SET MIDTOWN. LLC.
an lkridaJtcd • 1
BECKER. BOARDS M1A.Ml. LLC
an Arizona limited tahilii v compan
Sienatint, .,.,..
Yz.. .-54-7 "e7,iiditrinted Name:
1 .4 id*-032-6e9' 6 Title. Me
7 3, Address: 435 EC elback Rd Suite B-195
Phoems, AZ i15t118
rage 2,ot 2
COMPOSITE EXHIBIT "B"
see attached
Page 8 of 9
LAW OFFICES OF
DEREK A. SCHWARTZ, P.A.
November 29, 2016
Via Email and/or Certified Mail:
Becker Boards Miami, L.L.C.
c/o Robert H. Nagle, Esq.
Nagle Law Group, P.C.
4530 E. Shea Boulevard
Suite 140
Phoenix, Arizona 85028
With a copy to:
Becker Boards Miami, L.L.C.
Mr. Joseph White
4350 E. Camelback Road
Suite B-195
Phoenix, Arizona 85018
Re: 78 NW 37th Street, Miami, Florida 33127 (the "Subject Property")
Dear Robert:
This law firm represents Set Midtown LLC, a Florida limited liability company. You are hereby advised
that any communications directed at, with or related to the aforementioned party or those affiliated
therewith shall only occur through me.
As you are aware, we have become familiar with each other over the past year in connection with the
discussions between our clients related to a proposed easement agreement on the Subject Property.
Unfortunately, for various reasons, those discussions did not amount to a meeting of the minds.
The purpose of this letter is twofold: (1) to address the recent threat made by your client; and (2)
demand of your client to remove its permit from the Subject Property.
With respect to the first purpose above, in a phone call between Joseph White and Phillip Sylvester on
November 16, 2016, Mr. White threatened to place a permit on an abutting or adjacent property solely
to block and/or frustrate my client's lawful development and use of the Subject Property. It is my
understanding that the threat was expressed in a manner substantially similar to the following: "[ijf we
do not do this deal together, you realize that I am going to go to one or your neighbors and cut a deal
Page 1 of 2
LAW OFFICES OF DEREK A. SC_HWAR rz, P.A.
4755 Technology Way, Suite 205, Boca Raton, Florida 33431 Phone 561-981-8089 Fax 561-997-6036
to space you out."' I trust that you are aware this type of predatory behavior, where there is no intent
to commercially use the permit for mural advertising purposes, is actionable. If this occurs here, our
client has instructed us to immediately file an action on its behalf and seek an award of damages and
other relief against your client. For everyone's sake, I hope that such legal action is not necessary.
With respect to the second purpose above, this letter shall serve as demand by our client to your client
to immediately remove its permit, Permit Number 15-0002, from the Subject Property. On August 12,
2016, your client gave written notice to my client that the Outdoor Advertising Lease Agreement dated
October 28, 2015 was terminated. Such notice effectively terminated said lease as of September 12,
2016. Since providing such termination notice, your client has failed to remove its permit from the
Subject Property. Demand is hereby made of your client to remove its permit from the Subject
Property within 7 days following your receipt of this letter. Please be advised that we have been
instructed by our client to pursue all legal actions necessary to enforce its rights and resolve your
client's failure to remove the permit.
Please kindly advise your client to govern itself accordingly.
If you should have any questions regarding this letter, please do not hesitate to call me.
Regards,
i�erelc.A.Schvva
,,FOR THE FIRM
We have reason to believe, from your client's own admissions, that your client may have used Permit Number
15 0044 for this same purpose against District 36.
Page 2 of 2
LAW OFFICES OF D! EK A. SCHHWARTZ, P.A.
4755 Technology Way, Suite 205, Boca Raton, Florida 33431 1 Phone 561-981-8089 Fax 561-997-6036
COM POSITE EXHIBIT "C"
see attached
Page 9of9
Subject: Re: Mural transfer
Date: 4/8/2018 2:34:47 PM Central Standard Time
From: ops047111/16
To: JCerrat
Hi,
Yes, 2:30 on Wednesday the l l th works for me.
!'!1 see you then.
Thank you,
Phillip Sylvester
312
In a message dated 4/6/2018 9:21:45 AM Eastern Standard Time,,Cerrat writes:
Good moaning. Mr. Sylvester:
Z apologize for the delayed response. We can schedule a time for you to come in. 1 am available next
Wednesday afternoon. Please advise if 2:30 PM is a good time for you on April 11th.
Thank you,
Julia D. Cerrato, Assistant Director
City of Miami
Oflke of Zoning
444 SW 2nd Avenue, 4th Floor
Miami, FL 33130
Telephone: 305
Ting, Enhancing, and Transforming our Community"
From: Phillip Sylvester- [mailto:op O47
Sent: Friday, March 30, 2018 2:19PM
To: Cerrato, Julia <JCerratq _>
Cc:
Subject: Re: Mural transfer
Mrs Cerrato,
Thank you for prompt response. I was wondering if it would be possible for me to come to your office
and present my reasons for opposing this mural transfer. If so, please let me know a convenient time.
Thank you again,
Phillip Sylvester
Sent from my iPhone
On Mar 30, 2018, at 9:29 AM, Cerrato, Julia <Esujasimummi. wrote:
Good morning, .Mr. Sylvester:
Section 62-616 of the Mural Code reads as fo11ows:
Any decisions of the city manager or designee pursuant to this article may be appealed to
the city commission.
I will look into the formal process, but be advised that a decision has not been rendered on
the referenced location.
Thank you,
Julia D. Cerrato, Assistant Director
<itnage002.png>city of Miami
Office of Zoning
444 SW 2nd Avenue, 4tb Floor
Miami, FL 33130
Telephone: 305-411111111.
errata
"Serving, Enhancing and T -an: t r"rning our Community"
From: Phillip Sylvester [rnailtoxvs04711111111111111
Sent: Thursday, March 29, 2018 5:18 PM
To: Cerrato, Julia <JC`errat
Cc:
Subject: Mural transfer
Mrs Cenrato,
Tam the property owner of 78 NW 37th Street which abuts 70 NW 37th Street and 1
received this notice.
Please allow this entail to serve as notice of my objection to the proposed relocation of a
mural to 70 NW 37th Street, Additionally, please provide further information on the
procedures of an appeal,
Thank you,
Phillip Sylvester
President, Set Midtown LLC
31211011110
Sent from my iPhone
EXHIBIT C
Filing # 77475749 E-Filed 09/05/2018 04:14:51 PM
IN THE CIRCUIT COURT OF THE 11th
JUDICIAL CIRCUIT IN AND FOR
MIAMI-DADE COUNTY, FLORIDA
GENERAL JURISDICTION DIVISION
CASE NO.: 2018-27467 CA 01
SET MIDTOWN LLC,
a Florida limited liability company,
Plaintiff,
v.
BECKER BOARDS MIAMI, L.L.C.,
an Arizona limited liability company,
Defendant.
/
DEFENDANT'S MOTION TO DISMISS
Defendant Becker Boards Miami, LLC ("Defendant"), by counsel, moves for the entry of
an Order dismissing with prejudice the Complaint for Damages ("Complaint") filed by Plaintiff
Set Midtown LLC ("Plaintiff') on August 14, 2018. In support of this Motion, Defendant states
as follows:
INTRODUCTION
This case arises from an Outdoor Advertising Lease Agreement ("Lease") between
Plaintiff, as lessor, and Defendant, as lessee, whereby Plaintiff agreed to allow Defendant to use
the side of Plaintiff's building (located at 78 N.W. 37th Street, Miami, Florida 33127 (the
"Property")) for advertising purposes. Defendant owns a "mural permit," which gives it the ability
46289638;1
to advertise on buildings, as set forth in the Lease. Defendant's mural permit is Miami -Dade Mural
Permit No. 15-0002 (the "Permit").
Plaintiff's sole cause of action for breach of contract alleges that Defendant breached the
Lease by failing to timely remove the Permit from the Property when Defendant exercised its right
to terminate the Lease early. Plaintiff's breach of contract claim, however, is meritless and must
be dismissed with prejudice, because there is not a single provision in the Lease that requires or
obligates Defendant to remove the Permit at all, let alone within a specific timeframe after the
termination of the Lease.
Indeed, this entire lawsuit is a complete ruse and abuse of the judicial system as the Plaintiff
is attempting to use this lawsuit as leverage for competitive reasons, because it cannot obtain its
own mural permit for its Property without the Defendant's consent to relocate another one of its
permits (permit number 18-0041) located adjacent to Plaintiffs Property. In fact, nine (9) months
ago the Defendant obtained approval from the City of Miami to transfer the relevant mural Permit
from Plaintiffs demolished building to the City of Miami's police depaittnent and the Permit was
actually transferred on January 8, 2018. The Plaintiff has now attacked and appealed the transfer
of Defendant's unrelated permit (number 18-0041) to the neighboring building adjacent to the
Plaintiffs Property. Additionally, it was one day after the transfer of that permit was approved by
the City of Miami that Plaintiff instituted this frivolous lawsuit. Lastly, Plaintiff has now reported
baseless and self-serving "concerns" to the City of Miami regarding the relevant Permit (number
15-0002).
For these reasons, and as set forth more fully below, the Complaint should be dismissed
with prejudice and Defendant awarded its reasonable attorneys' fees and costs incurred herein.
2
46289638;1
ARGUMENT
L MOTION TO DISMISS STANDARD
Under Florida law, a motion to dismiss pursuant to Rule 1.140(b)(6), Florida Rules of Civil
Procedure, tests the sufficiency of the complaint to state a cause of action. A motion to dismiss
should be granted if it appears the set of facts alleged by the plaintiffs in support of their claims,
even if true, do not support a claim which would entitle the plaintiffs to relief. See Samuels v. King
Motor Co., 782 So. 2d 489, 495 (Fla. 4th DCA 2001); see also Fla. R. Civ. P. 1.140(b)(6).
In determining the merits of a motion to dismiss for failure to state a cause of action, the
court is limited to the four -corners of the complaint and the allegations therein must be accepted
as true and viewed in the light most favorable to the moving party. Susan Fixel, Inc. v. Rosenthal
& Rosenthal, Inc., 842 So. 2d 204, 206 (Fla. 3d DCA 2003). But when taking the allegations as
true, the court must consider both whether the moving party would be entitled to relief, and whether
the complaint alleges all essential elements necessary to bring each stated cause of action. See
Ralph v. City of Dayton Beach, 471 So. 2d 1, 2 (Fla. 1983); see also Landrum v. John Doe Pitt
Digger, 696 So. 2d 926, 928 (Fla. 2d DCA 1997).
Moreover, in deciding a motion to dismiss, the Court is not required to accept a plaintiff's
internally inconsistent factual claims, conclusory allegations, unwarranted deductions, or mere
legal conclusions. See R. Townsend Contracting, Inc. v. Jensen Civil Const., Inc., 728 So. 2d 297,
300 (Fla. 1st DCA 1999) (emphasis added). A complaint must plead sufficient ultimate facts to
support each element of the cause of action, and the mere pleading of conclusory allegations is
insufficient to meet this requirement. Nodal-Tarafa v. ARDC, 579 So. 2d 414 (Fla. 3d DCA 1991).
Of greater import in this case is that a contract that is attached as an exhibit to a complaint
is deemed part of the complaint and must be reviewed as such. See, e.g., Hillcrest Pac. Corp. v.
3
46289638;1
Yamamura, 727 So. 2d 1053, 1055 (Fla. 4th DCA 1999) (citing Fla. R. Civ. P. 1.130(b)). Naturally,
"Iw]hen there are conflicts between the allegations and documents attached as exhibits, the
plain language of the documents control." Geico Gen. Ins. Co., Inc. v. Graci, 849 So. 2d 1196,
1199 (Fla. 4th DCA 2003) (emphasis added).
II. PLAINTIFF'S BREACH OF CONTRACT CLAIM FAILS BECAUSE
PLAINTIFF FAILS TO ALLEGE A SINGLE PROVISION OF THE LEASE
THAT HAS BEEN BREACHED
It is axiomatic under Florida law that an exhibit attached to a pleading is part of the pleading
for all purposes and, if the attached document negates the pleader's cause of action, the plain
language of the document controls and may form the basis of a motion to dismiss. See Franz
Tractor Co. v. J.L Case Co., 566 So. 2d 524 (Fla. 2d DCA 1990); Harry Pepper & Associates, Inc.
v. O. Al Lasseter, 247 So. 2d 736 (Fla. 3d DCA 1971).
Glaringly absent from the Complaint is any provision that Defendant allegedly breached
by failing to timely remove the Permit. Indeed, the Lease — which is the contract governing the
parties rights and obligations to one another and with respect to the Property — does not require
Defendant to remove the Permit at all, let alone within a specific timeframe after termination of
the Lease. Because this is the sole basis for Plaintiff's breach of contract claim, and because the
alleged conduct (Defendant's purported failure to timely remove the Permit) does not constitute a
breach of the Lease, the claim fails as a matter of law.
Additionally, the Court is powerless to rewrite the terms of an unambiguous contract, like
the Lease at issue here. The Court cannot add to a lease provisions that do not exist. For this
reason alone, the Complaint must be dismissed with prejudice.
With respect to Plaintiff's claim that it has suffered damages because Defendant entered
into a lease with a neighboring landowner to advertise, and place a mural permit on that property,
4
46289638;1
which now precludes Plaintiff from obtaining its own mural permit for its Property pursuant to
Section 62-606 of the Miami -Dade Code of Ordinances (the City of Miami will not "issue a mural
permit for any building if said building is within 300 feet of another legally permitted mural..."
See Compl., ¶ 24-25), so what! The Lease, which is the only governing agreement between the
parties, does not say anything about Defendant's right or lack thereof to enter into another lease
with an adjacent, or any other, landlord or to obtain a mural permit for any other location, adjacent
to Plaintiffs Property or otherwise. Furthermore, there is no geographic restriction in the Lease,
and Plaintiff's attempt to construe the Lease as an anti -competition agreement is patently frivolous.
Simply put, the Lease is totally devoid of any provision restricting Defendant from leasing
any other premises, adjacent to Plaintiffs Property or otherwise, or from obtaining a mural permit
for any other building. As Plaintiff has no claim and no damages, the Complaint must be dismissed
with prejudice.
III. DEFENDANT IS ENTITLED TO RECOVER ITS
REASONABLE ATTORNEYS' FEES AND COSTS
The Lease provides that "if any action brought by any party to this Lease pertaining to this
Lease, whether in court, arbitration, mediation or otherwise, the prevailing party will be entitled
to reasonable attorneys' fees and costs." See Lease, at 1. Accordingly, Defendant is entitled to an
award of its attorneys' fees in having to defend this baseless action.
WHEREFORE, Defendant respectfully requests the entry of an Order (i) dismissing
Plaintiff's Complaint with prejudice, (ii) awarding Defendant its reasonable attorneys' fees and
costs, and (iii) granting Defendant such further and additional relief as this Court deems just and
5
46289638;1
proper.
Respectfully submitted,
AKERMAN LLP
Three Brickell City Centre
98 S.E. 7th Street, Suite 1100
Miami, Florida 33131
Telephone (305) 374-5600
By:/s/ Dana A. Clayton
Dana A. Clayton, Esq.
Florida Bar No. 907758
Primary E-mail: dana.clayton@akerman.com
Secondary E-mail: dorothy.matheis@akerman.com
Jeffrey Pertnoy, Esq.
Florida Bar No: 91939
Primary: Jeffrey.pertnoy @akerman.com
Secondary: marylin.herrera@akerman.com
Counsel for Defendant
6
46289638;1
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished by e-
mail this 5th day of August, 2018 to:
Derek A. Schwartz, Esq.
Law Offices of Derek A. Schwartz, P.A.
4755 Technology Way, Suite 205
Boca Raton, FL 33431
Telephone: (561) 981-8089
Facsimile: (561) 997-6036
Primary Email: derek@derekaschwartzpa.com
Secondary Email: derekaschwartz@gmail.com
By: /s/ Dana A. Clayton
Dana A. Clayton, Esq.
Florida Bar No. 907758
7
46289638;1