HomeMy WebLinkAboutSubmittal -Maria Gralia - Letter to CommissionersSTEARNS WEAVER MILLER
WEISSLER ALHADEFF & SITTERSON, P.A.
March 9, 2022
Via Electronic Mail and Hand Deliver'
Mayor Francis Suarez
City of Miami City Hall
3500 Pan American Drive
Miami, FL 33133
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Commissioner Ken Russel, District 2
City of Miami City Hall
3500 Pan American Drive
Miami, FL 33133
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Manolo Reyes, District 4
City of Miami City Hall
3500 Pan American Drive
Miami, FL 33133
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Submitted into the public.)
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Maria A. Gralio
150 West Flagler Street, Suite 2200
Miami, Fl.. 33130
Direct: (305) 789-3525
Fax: (305) 789.2628
Email: mgralia@u stearnsweaver.cam
Commissioner Alex Diaz de la Padilla, District 1
City of Miami City Hall
3500 Pan American Drive
Miami, FL 33133
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Commissioner Joe Carollo, District 3
City of Miami City Hall
3500 Pan American Drive
Miami, FL 33133
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Commissioner Christine King, District 5
City of Miami City Hall
3500 Pan American Drive
Miami, FL 33133
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Re: Ordinance Amending Chapter 2, Article X Section 817 of the Code of the City ofMiami;
SR.3, File No. 11529 (the "Ordinance"}
Dear Mayor Suarez and Members of the City Commission:
This firm represents The Mad Room Hospitality, LLC, owner of Ball & Chain located at
1513 S.W. 8ti, Street, Altos Mexicana, LLC, owner of Taqueria el Mexicana located at 521 SW 8
Street and Little Havana Bungalows, LLC, owner of the property located at 28 NW 10 Avenue.
This letter serves as notice of our clients' opposition to the above referenced Ordinance.
As elected officials you have the responsibility to protect all of your constituents regardless
of their standing in the community. It is our belief, that this Ordinance is specifically targeted to
our clients' properties in contravention of the City's Citizen's Bill of Rights, which states in
pertinent part as follows:
In order to provide the public with full and accurate information, to
promote efficient administrative management, to make government
MIAMI • TAMPA • FORT LAUDERDALE • TALLAHASSEE • CORAL GABLES
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March 9, 2022
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more accountable, and to insure to all persons fair and equitable
treatment.
By way of background, and as you well -know, the City has long and consistently
maintained the practice of imposing fines in connection with various code provisions and
enforcement actions which accrue to unconscionable levels far outstripping both the purpose of
the code or the enforcement action and the value of the property or business at stake, and then
allowing affected citizens to mitigate the fines to reasonable levels inter alia upon satisfaction of
underlying issues, The City has afforded mitigation across the wide array of City enforcement
activity, from misplaced trash and uncut grass to work performed without a permit and remediating
unsafe structures.
On January 26, 2022, this firm represented Mr, William Fuller before the Code
Enforcement Board to mitigate fines imposed on the property located at 36 NW 10 Avenue. The
fines extended from a violation issued in 2015 allegedly for illegal units, illegal rooming house
and work performed without a permit. The City's records show that the violations were complied
with in 2020. However, by the compliance date, the fines had accrued to $1,537,000,00. The
City's own Fact Sheet showed an assessed value an the property of $141,038.00. The Code
Enforcement Board mitigated the fines to $20,000.00 for good cause shown allowing Mr, Fuller
to finalize the sale of the property, In fact, that was the highest fine imposed that evening by the
Code Enforcement Board, The City Attorney recommended $10,000.00 and the Board doubled
the fine based on the facts before them.
On February 17, 2022, our firm on behalf of Little Havana Bungalows, LLC', requested a
mitigation hearing before the Board. Ten (10) days after that request, the Ordinance was on the
agenda sponsored by Commissioner Carollo without any analysis in violation of the City's Code.
Additionally, Altos Mexican°, LLC is incurring daily fines for work allegedly done
without a permit. Since the date the violation was issued, Altos Mexican° has been working with
the City to cure said violations. However, the fines continue to accrue while they slowly move
through the building permitting process. The building permit was submitted to the City of Miami
in 2019. COVID-19 delayed the review process by several months. Then when Altos Mexican°
was about to close out the permit, the City issued another comment necessitating revisions that
further delayed compliance. While Altos Mexicana believes that the permit will be finalized
within the next few weeks, they will be precluded from going before the Board to mitigate the
accrued fines for good cause shown, including the hardships suffered as a result of COVID-19.
Attached for your reference is a timeline of the permitting process for Altos Mexican°.
It is our belief, that Commissioner Carollo has brought this Ordinance to punish our clients'
businesses and in so doing is willing to inflict substantial pain and hardship on other property
owners, many of which are in your specific .jurisdictions. Commissioners Diaz de la Portilla,
Russell and King, how many of your constituents will be affected? Commissioner Reyes, you
asked at First Reading whether business owners that rent their spaces will be affected and you
were satisfied with Commissioner Carollo's response of "no". However, the answer is a
' Mr. Fuller is the Manager of Little Havana Bungalows, LLC.
STEARNS WEAVER MILLER WEISSLER ALHADEFI & SITERSON. RA,
March 9, 2022
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resounding yes. Tenants may not be personally responsible for the fines, but will be affected when
their landlords stop taking care of a property whose fines may be greater than its assessed value.
A residential landlord may incur violations as a result of their tenants malfeasance. Many of these
landlords are providing the affordable housing so desperately needed in the City of Miami. They
may decide not to rent, or neglect the property as it would not pay to comply with the code if the
fines are excessive and no chance to mitigate. Lastly, Commissioner Carollo, did you consider
unintended consequences of this Ordinance, or were you so thrilled with the potential of a "gotcha"
that you were blinded by the hardships that will be inflicted on many of your own constituents if
the Ordinance is adopted.
The Ordinance as written is arbitrary and unreasonable. It unfairly treats similarly -situated
properties differently in violation of the City's Citizens Bill of Rights and the Florida and the
United States equal protection clauses. It limits the ability of non -homestead violators and does
not have the same restrictions on homestead violators without a justified basis. It is well settled
law that a municipal lien on a homestead property cannot be foreclosed. But, Sec. 162, Florida
Statutes makes no distinction on how fines are imposed or mitigated as a result of a property's
homestead status.
In addition, the proposed ordinance strips my clients and impacted all City residents of
their due process by interfering with their property rights without providing them an opportunity
to be heard on account of good cause shown. One purpose of the City's existing mitigation
procedures is to afford such due process.
The Ordinance as proposed is unconstitutional as it fails to provide any discretion to the
Code Enforcement Board or special magistrate in violation of Section 162.09, Florida Statutes, for
extraordinary circumstances, including those outside the control of the violator such as City delays
in approving building permits, pandemics, acts of God, among others.
For example, the City can delay the issuance of building permits, or landlords could be
held responsible for their tenants' actions and having their properties unduly burdened by the City
for actions beyond their control. A property owner's due process rights are violated by interference
with their fundamental property rights without providing therm an opportunity to be heard. Thus,
the law constitutes an unconstitutional taking/quasi-taking by imposing a lien and penalties that
inordinately burden, restrict and limit a property owner's vested property rights without allowing
the Board to exercise discretion to remove fines in extraordinary circumstances that have nothing
to do with the actions of the property owner.
The proposed ordinance is unconstitutional for the further reason that it seeks to impair
vested rights by retroactive application of a new law. Citizens and other property owners with
pending violations, with pending files, or with potential outstanding issues subject of future
enforcement action, cannot lawfully be stripped of their current rights to mitigate related fines.
The City's attempt retroactively to apply this proposed ordinance to pending issues is especially
egregious as applied to my clients, who have not only gone above and beyond to clear alleged
violations and comply with the City's every demand, but have then been subject to moving
goalposts and delays by the City.
STEARNS WEAVER MILLER WEISSLER ALHADEFF tx SITTERSON. r.A.
Submitted into the pub'
45
March 9, 2022 ri: rd for it m(s)
Page 4 ors ity Clerk
The City's refusal to mitigate for good cause imposes a draconian remedy in violation of
the 8th amendment as significant fines are routinely mitigated beyond the limits in the schedule.
Should the Ordinance pass, a minor violation, which carries these punitive daily fines, could easily
add up to more than the value of a property if the alleged violation is not timely cured resulting in
significant foreclosure litigation issues for the City. Further, such foreclosure could be a pretext
used to by-pass the eminent domain provisions of the State and United States Constitution.
Before you cast your vote, you should ask the administration to provide you with a cost
benefit analysis and fiscal impact of the. Ordinance. Such analysis should include the cost of
foreclosing on those properties whose assessed value is greater than the fines imposed, or the award
of attorney's fees when a foreclosure action is denied. Will this have an adverse effect on the
continued maintenance of properties when there is no off ramp from draconian fines? flow will
these fines affect the transfer of real property? How many properties are affected? Will landlords
pay for the sins of their tenants? I am certain there are many more questions to be raised. You
and your constituents deserve thorough analysis as provided in Chapter 2, Article II, Section (e)
of the City Code as follows:
All resolutions and ordinances except land use changes, zoning
changes, board and committee appointments, and election results
shall be reviewed by the office of management and budget for
any fiscal impact prior to placement on any agenda,
As reflected in the record, this Ordinance was hastily brought forth and fails as a matter of
law. The Code Compliance Director tried in vain to voice his concerns but he was quickly
dismissed by Commissioner Carollo. Your constituents deserve better as your vote to approve this
Ordinance may have consequences beyond punishing a few perceived "scoundrels"
[Commissioner Carollo, February 27, 2022 Commission meeting].
My clients continue to suffer from the City's unlawful policies and plans to target them
and destroy their fundamental property and business rights. Nothing here waives or detracts from
those rights and my clients' pursuit and defense of their interests in this and any forum, including
federal court. We hope that by repeatedly highlighting these issues, including in this newest salvo
by the City, those with the power to help discontinue complicity in the City's wrongful conduct,
We respectfully request that you deny the adoption of the Ordinance, or defer the item until
staff provides you with an analysis of the fiscal impacts of the Ordinance, its constitutionality and
what properties are affected by this Ordinance.
Sincerely,
. ...Li
011014-0-)
M is A, Giulia, Esq.
cc: Arthur Noriega, City Manager
Victoria Mendez, City Attorney
Roberto Santos-Alborna, Code Compliance Director
Todd Hannon, City Clerk
STEARNS WEAVER MILLER WEISSLER ALHADEFF & SITTEPSON, PA.
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Submitted into the public
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