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Despite receiving responsive records from the Defendants (which the Plaintiff thanked
them for on at least two separate occasions), he filed this lawsuit. In the interest of judicial
economy, and to prevent the Plaintiff from running up excessive attorneys fees, the Defendants
seek closure as to the liability phase of this case. For the reasons explained below, the
Defendants respectfully request an immediate hearing pursuant to Section 119.11(1), Florida
Statutes (2015) to address entry of final judgment on the liability portion of this case.
FACTUAL BACKGROUND
1. On September 3, 2015, Plaintiff made a public records request to the City requesting
a Copy of the entire City of Miami Planning and Zoning Departments file for the Walmart
Project located at 3055 N. Miami Avenue aka Walmart. (See Amended Complaint attached
hereto as Exhibit A at 8).
2. That request was complied with to the Plaintiffs satisfaction on September 26, 2015.
(Exhibit B).
3. On October 27, 2015, the Plaintiff submitted a second public records request for any
and all permits issued in the last 12 months affecting the Walmart Project or any other permits
for surrounding tracts of land. (Exhibit C).
4. On or about November 24, 2015, Plaintiff filed the instant lawsuit asserting a
violation of 119.07, Florida Statutes (the Public Records Act).
5. On November 30, 2015, the Plaintiff requested an immediate hearing pursuant to
Section 119.11(1), Florida Statutes (2015). (Exhibit LL).
6. On or about December 7, 2015, Plaintiff filed an Amended Complaint again asserting
a violation of the Public Records Act.
7. The City has produced numerous documents in response to the Plaintiffs public
records request. The following is a chronology of the Citys response to the public records
request:
Date
Monday, September 14, 2015
Friday, September 18, 2015
Wednesday,
2015
September
23,
Wednesday,
2015
September
23,
Wednesday,
2015
September
23,
Wednesday,
2015
September
23,
Wednesday,
2015
September
23,
Wednesday,
2015
September
23,
Wednesday,
September
23,
Description
Plaintiff submitted his public records request in person at
the MRC for the Planning and Zoning file for Walmart
Plaintiff arrived at the MRC and he sat at ACA Albans desk
and used his computer to view the documents provided by
planning department.
ACA Alban received an email from Plaintiff correcting the
address of the project from 3155 N. Miami Avenue to 3055 N.
Miami Avenue and once again requesting that ACA Alban
email him the records he inspected at his desk. (Exhibit D).
ACA Alban emailed Plaintiff to inform him the records were
uploaded on Friday, September 18, 2015 to the NextRequest
portal and provided him with the link to access the records.
ACA Alban acknowledged the change in the address and
informed Plaintiff it would be corrected. Id.
ACA Alban received an email from Plaintiff acknowledging he
had received the record he viewed and that was uploaded on
Friday, September 18, 2015, and identifying that he did not see
any of the City Commission, PZAB, or Court Opinions in the
record that was uploaded. (Exhibit E).
ACA Alban received an email from Plaintiff requesting Final
City Commission Resolution on item PZ 10 of the meeting
heard November 20th, 2014. (Exhibit F).
ACA Alban emailed Plaintiff informing him that the certified
copies of the resolution are available for him to pick-up at City
Hall and the cost of the certified copies. (Exhibit G).
Olga Zamora emailed Todd Hannon informing Mr. Hannon
that Plaintiff wants the record emailed to him and that he
would like it viewable on Legistar. (Exhibit H).
Todd Hannon emailed City staff assisting with this request that
the resolution and exhibit are both available through
Legislative Hub, that the certified copy is available for pick-up,
and that he is under the impression that Carlos Campana will
be providing Mr. Stern an electronic copy of the resolution and
exhibit. (Exhibit I).
ACA Alban emailed Plaintiff with an electronic copy of the
resolution. (Exhibit J).
ACA Alban received an email from Plaintiff requesting a copy
of the resolution with all of the dates and signatures.
(Exhibit K).
Todd Hannon emailed City staff assisting with this request that
2015
8. As of January 22, 2016, all responsive, non-exempt records have been produced to
Plaintiff. 1
The City withheld one (1) record totaling five (5) pages, pursuant to the exemption contained in
Section 119.071(1)(d)1, Florida Statute because it reflected a mental impression, conclusion,
litigation strategy, and/or legal theory and the document was prepared exclusively for civil
litigation and/or an adversarial administrative proceeding, specifically, Pfeffer, et al., v. City of
Miami, et al., Case No. 3D15-2208. That document was then produced to the Plaintiff on
February 16, 2016 following termination of that case.
9. The Plaintiff objects to entry of final judgment solely on liability based on his
mistaken belief that he will be precluded from seeking appropriate relief.
10. The Plaintiff now has retained a third attorney to work on this matter.
11. On March 17, 2016, undersigned counsel spoke with counsel for the Plaintiff over the
phone and engaged in a good faith effort to resolve this issue without involving the Court.
However, the Plaintiff maintains his objections and on March 18, 2016, unilaterally scheduled
the deposition of Defendant Francisco Garcia. (Exhibit MM).
12. Based upon the foregoing, the Defendants request an immediate hearing pursuant to
Section 119.11(1) to address entry of final judgment as to the liability portion of this case.
13. The Defendants are mindful of the inconvenience imposed upon the Court in
accommodating this request and does not make this request lightly. However, the Defendants
submit that an immediate hearing would help provide the parties guidance as to how the
remainder of this case should proceed and eliminate the need to expend time and resources on
moot issues.
ARGUMENT
Section 119.11(1), Florida Statutes (2015) states that: [w]henever an action is filed to
enforce the provisions of this chapter, the court shall set an immediate hearing, giving the case
priority over other pending cases. See also Matos v. Office of the State Attorney for the
Seventeenth Judicial Circuit, 80 So. 3d 1149 (Fla. 4th DCA 2012) (Under Section 119.11(1), an
immediate hearing does not mean one scheduled within a reasonable time, but means what the
statute says: immediate).
In opposing entry of final judgment, the Plaintiffs argument that the Defendants must
have more unproduced documents is the perennial argument of litigants who abuse the public
records laws in order to harass governmental agencies and run up attorneys fees. Despite his
protests, the Plaintiff fails to identify any responsive documents within the Defendants
possession that have not already been produced.
Thus, the Plaintiffs speculative notion that the Defendants must have additional
unproduced records is legally insufficient to warrant keeping this case open ad infinitum. A
similar argument was advanced in Downs v. State, 740 So. 2d 506, 510 (Fla. 1999). In that case,
the defendant alleged that a law enforcement agency had withheld notes from witness interviews
despite the State and the Sheriffs office claim that all relevant records had been disclosed. The
Florida Supreme Court affirmed the denial of the defendants motion for relief because he did
not proffer or assert the existence of any evidence that such notes existed and were improperly
being withheld. Id. at 511; see also, Mendyk v. State, 707 So. 2d 320, 322 (Fla. 1997) (In the
absence of a showing that ... notes or recording may have been made [by a sheriff's department],
the trial judge did not abuse his discretion in denying Mendyk's motion....); Mills v. State, 684
So. 2d 801, 806 (Fla. 1996) (We find no abuse of discretion in the trial court's failure to order
the production of records [from a sheriff's department] when there is no demonstration that the
records exist.).
Additionally, in Johnson v. State, 904 So. 2d 400, 404 (Fla. 2005), the defendant alleged
that the tardy production of public records in early 2001 call[ed] into question the record
keeping practices of the FDLE in regards to [his] case and may indicate that more unproduced
documents exist. The Florida Supreme Court rejected this argument finding that it amounted to
no more than a fishing expedition for records. Id.; see also, Moore v. State, 820 So. 2d 199,
204 (Fla. 2002) (rejecting a public records claim because importantly, [the defendant] has made
no showing that there is any additional information that has not been disclosed).
Based on Downs and Johnson, the Plaintiffs failure to sufficiently identify the existence
of any undisclosed responsive records precludes his request to fish for such records.
Accordingly, his objection should be overruled, and a final judgment entered on liability.
Finally, the Plaintiff objects to entry of final judgment based on his mistaken belief that
the Defendants are choosing the relief he is entitled to. In a public records action, there are two
issues to litigate: (1) a plaintiffs entitlement to the specific public records requested, and (2) a
plaintiffs entitlement to reasonable attorneys fees. Because the Plaintiff has received all
responsive records, his relief, if any, is limited to reasonable costs and attorneys fees. Section
119.12, Florida Statutes (2015). Therefore, the Plaintiffs objections are meritless, and this
Court should enter final judgment on liability.
WHEREFORE, the Defendants respectfully requests that this Court grant their Motion
for Immediate Hearing Pursuant to Section 119.11(1), Florida Statutes (2015), and enter a Final
Judgment as to the liability phase of this case.
Respectfully submitted,
VICTORIA MNDEZ, City Attorney
DOUGLAS A. HARRISON, Assistant City Attorney
FORREST L. ANDREWS, Assistant City Attorney
Attorneys for City of Miami
444 S.W. 2nd Avenue, Suite 945
Miami, FL 33130-1910
Tel.: (305) 416-1800
Fax: (305) 416-1801
Primary E-Mail:
flandrewsjr@miamigov.com
Secondary E-Mail: dbailey@miamigov.com
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing has been furnished to those
individuals on the attached Service List by e-mail generated by My Florida Courts E-Filing
Portal this 18th day of March 2016.
SERVICE LIST
Jos Luis Rey, Esq.
THE BUSINESS & REAL ESTATE LAW GROUP
4000 Ponce de Leon Boulevard, Suite 470
Coral Gables, Florida 33146
Tel.: (305) 372-8755
E-Mail: jrey@brelawyers.com
Attorneys for Plaintiff Grant Stern
Faudlin Pierre, Esq.
18900 NE 1st Court
Miami, FL 33179
Tel.: (305) 336-9193
E-Mail: fplaw08@yahoo.com
E-Mail: fparalegal@gmail.com
Attorneys for Plaintiff Grant Stern