LTC 160-2020 Jetski Exotics, LLC, and Rami Hakim vs. City of Miami BeachM IAM I BEACH
OFFICE OF THE CITY ATTORNEY LETTER TO COMMISSION
LTC No. 160-2020
TO:
FROM:
DATE:
Mayor Dan Gelber
Members of the City Commission
City Manager Jimmy L. Morales f
City Attorney Raul J. Aguila~ ..J- 0,-
April 28, 2020
SUBJECT: Jetski Exotics, LLC, and Rami Hakim vs. City of Miami Beach.
11" Judicial Circuit Court Case No. 2017-11427 CA 01
The purpose of this Letter to Commission is to provide formal notification to the Mayor and City
Commission that the above-subject lawsuit was resolved in favor of the City of Miami Beach (the
"City"), and the City will be pursuing the recovery of its attorney's fees and costs.
Plaintiffs (Jetski Exotics, LLC , and Rami Hakim, an individual) operate a watercraft rental business
in the City and, among other services, rent personal watercrafts (i.e. jet skis) to customers. After
the customers furnish payment and receive instructions at the Plaintiffs' principal place of
business (1416 18 Street), Plaintiffs' employees then deliver the rented jet skis to customers by
utilizing the City's Barry Kutun Boat Ramp, also known as the Purdy Avenue Boat Ramp (the
Boat Ramp"), which is located within Maurice Gibb Memorial Park. There, the rented jet skis are
placed into the water, via the Boat Ramp, by Plaintiffs' employees and launched into Biscayne
Bay.
On July 13, 2016, the Mayor and City Commission adopted Ordinance No. 2016-4022 (the
"Ordinance"), which is codified in Section 82-1 of the City of Miami Beach Code of Laws and
Ordinances (the City Code"). The Ordinance amended Section 82-1 of the City Code by creating
subsection (b), which further clarified the already-existing prohibition on conducting commercial
transactions on City property, as set forth in subsection (a). Section 82-1 (a) of the Ordinance,
which was not amended, was initially enacted in 1964 to prohibit commercial transactions, activity,
or operations at any property or place owned, maintained, or operated by the City (with certain,
limited exemptions).
Regrettably, the Plaintiffs were unwilling to comply with the provisions of the Ordinance, and
consequently, filed their initial Complaint (the "Complaint") in Miami-Dade County Circuit Court on
May 12, 2017. The Complaint requested that the Court grant Plaintiffs declaratory relief, injunctive
relief, and monetary damages against the City pursuant to 42 U.S.C § 1983. Specifically, the
Plaintiffs alleged that, in enacting the Ordinance, the City violated the public hearing requirements
of Florida Statute 166.041(3)(c), and that the City further violated a myriad of Plaintiffs'
Constitutional rights.
In response, the City filed an Amended Motion to Dismiss Plaintiff's (Amended) Complaint and,
on July 6, 2018, upon review of the pleadings and hearing oral argument, Circuit Court Judge
Antonio Arzola ("Judge Arzola") dismissed all of Plaintiffs' 42 U.S.C. § 1983 Constitutional
Letter to Com m ission Re: Jetski Exotics, LLC, and Rami Hakim vs. City of Miami Beach
April 28, 2020
Page 2 of 2
allegations against the City for failure to state a claim upon which relief can be granted.
Subsequently, the City filed a Motion for Final Summary Judgment, which was heard by Judge
Arzola on March 4, 2020, and upon reviewing the City's Motion for Final Summary Judgment and
hearing oral argument, Judge Arzola upheld the validity of the City's Ordinance and granted the
City's Motion for Final Summary Judgment. In his ruling, Judge Arzola held that:
1. The Ordinance was properly enacted because it's a regulatory ordinance and falls outside
the notice requirements of §166.041(3)(c)(2) Fla. Stat; and
2. The Ordinance, by adding subsection 82-1(b ), simply elaborated on the prohibition against
conducting commercial transactions on City property and clarified the types of activities
which are prohibited on City property.
(A copy of the Order granting Summary Judgment for the City is attached to this Letter to
Commission).
As the prevailing party in this litigation, the City is pursuing its attorney's fees pursuant to Florida
Statute § 57.105, for having to defend this meritless lawsuit, which Motion for Sanctions is
scheduled to be heard by Judge Arzola on May 28, 2020.
Moreover, this litigation, including the various Constitutional claims therein, has been (and will
continue to be) handled entirely in-house by the City Attorney's Office legal team, including Faroat
Andasheva, Mark Fishman and Aleksandr Boksner.
Should you have questions or concerns about any of the foregoing, please contact Aleksandr
Boksner, Chief Deputy City Attorney.
RJA/AB/MF/FA/sc
F i li n g # 1 0 4 9 6 6 4 4 6 E -F ile d 0 3 /1 6 /2 0 2 0 0 4 :4 8 :4 2 P M
IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL
CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA
CASE NO: 2017-011427-CA-0l
SECTION: CA24
JUDGE: Antonio Arzola
JETSKI EXOTICS, LLC et al
Plaintiff( s)
vs.
CITY OF MIAMI BEACH
Defendant( s)
I ------------
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE having come before the Court on March 4, 2020 on Defendant's Motion for
Summary Judgment, and the Court having reviewed the Motion, Plaintiffs' Memorandum of Law
in Opposition to the Motion, and pleadings, heard argument of counsel, and being otherwise
fully advised in the premises, it is:
ORDERED AND ADJUDGED as follows:
I. The Motion for Summary Judgment is hereby GRANTED.
2. In their Second Amended Complaint, Plaintiffs request declaratory relief and injunctive
relief, alleging that that the City of Miami Beach (the "City") violated the public hearing
requirement of§ 166.041 (3)(c) of Florida Statutes when it adopted Ordinance No. 2016-
4022, codified in Section 82-1 of the Code of the City of Miami Beach.
3. Plaintiff is a Florida limited liability company with its principal place of business located at
1416 18" Street, Miami Beach, FL 33139. This principal place of business is located on
private, non-governmental property. Plaintiff, among other things, rents personal
watercrafts (i.e. jet skis) to customers. Customers furnish payment and receive instructions
at the Plaintiffs' principal place of business. Plaintiffs' employees then deliver the rented jet
Case No: 2017-011427-CA-01 Page 1 of7
skis to customers in Biscayne Bay, a navigable waterway, via the Barry Kutun Boat Ramp
(the "Boat Ramp") within the Maurice Gibb Memorial Park, alkla Purdy Avenue Boat Ramp
located at 1700 Purdy Avenue. There, Plaintiffs' employees place the jet skis in the water
at the ramp to launch them off into the Biscayne Bay.
4. It is undisputed that the Barry Kutun Boat Ramp is City property located in a Government
Use ("GU") zoning district. Main permitted uses in the GU district as stated in Section 142-
422 of the City Code are "government buildings and uses, including but not limited to
parking lots and garages; parks and associated parking; schools; performing arts and
cultural facilities; monuments and memorials. Any use not listed above shall only be
approved after the city commission holds a public hearing." See $142-422 of City Code of
Miami Beach.
5. On July 13, 2016, the Mayor and City Commission of the City of Miami Beach adopted
Ordinance No. 2016-4022 (the "Ordinance"), codified in Section 82-1, in the Code of the
City of Miami Beach ("City Code"). The Ordinance amended Section 82-1 of the City Code
to create subsection (b). Subsection (a) of the Ordinance, which was not amended, was
initially enacted in 1964 to prohibit commercial transactions on the City's property and has
remained unchanged since. Section 82-1(a) states in pertinent part as follows:
(a) It shall be unlawful for any person, while in or on any public
street, avenue or alley, or any park, beach, structure, building or
other property or place owned, maintained or operated by the city for
public use, to sell, rent or offer for sale or rent to the public any
article, commodity or service of any nature whatsoever, other than
newspapers of general circulation duly entered in the United States
Postal Service.
6. The 2016 amendment to Section 82-1 contained in subsection (b) states as follows:
(b) It shall be unlawful for any commercial business operator,
establishment, entity, organization or company that sells or rents
merchandise, products, goods or services, or engages in any service
that sells or rents merchandise, products or goods, including those
commercial operators that transport passengers, from conducting
any portion of the commercial transaction, activity or operation at any
park, boat ramp, beach, structure, building or other property or place
owned, maintained or operated by the City. A commercial
transaction, activity or operation will be deemed to have occurred if
Case No: 2017-011427-CA-0l Page 2 of7
any direct, indirect, or incidental portion of the commercial
transaction, activity or operation takes place at, or uses, a City park,
boat ramp, beach, structure, building or other property or place
owned, maintained or operated by the City (including the Barry
Kutun Boat Ramp that is located within the Maurice Gibb Memorial
Park.
7. Plaintiffs challenge the enactment of the Ordinance and subsection (b) by asserting that
the City did not comply with the procedural notice requirements set forth in
§ 166.041 (3)(c)(2) of the Florida Statutes which provides in pertinent part as follows:
2. In cases in which the proposed ordinance changes the actual list of
permitted, conditional, or prohibited uses within a zoning category, or
changes the actual zoning map designation of a parcel or parcels of land
involving 10 contiguous acres or more, the governing body shall provide for
public notice and hearings as follows:
a. The local governing body shall hold two advertised public hearings on the
proposed ordinance. At least one hearing shall be held after 5 p.m. on a weekday,
unless the local governing body, by a majority plus one vote, elects to conduct that
hearing at another time of day. The first public hearing shall be held at least 7 days
after the day that the first advertisement is published. The second hearing shall be
held at least 10 days after the first hearing and shall be advertised at least 5 days
prior to the public hearing.
§166.041(3)(c) Fla. Stat. (emphasis added).
8. Plaintiffs assert that because the Ordinance substantially changed previously permitted
uses, it constituted a land use ordinance, and was enacted in violation of
§166.041 (3)(c)(2) because the City held only one advertised public hearing prior to
enactment.
9. The City, in its defense, claims that it was not required to follow the notice requirements of
§ 166.041 (3)(c)(2) because the Ordinance did not involve altering permitted uses in the GU
district where the Barry Kutun Boat Ramp is located, and was simply a regulatory
ordinance regulating conduct. The City further asserts that it was only required to comply,
and did comply, with the procedural requirements set forth in subsection (a) of §
166.041 (3) Fla. Stat., which requires notice of the public hearing at least 10 days prior to
adoption in a newspaper of general circulation in the municipality.
Case No: 2017-011427-CA-01 Page 3 of7
1 O. After careful review and consideration of the existing Florida law on this issue, the Court
holds that the Ordinance at issue is indeed a regulatory ordinance and falls outside the
notice requirements of $166.041(3)(c)(2).
11. It is firmly established in Florida law that an ordinance that impacts one's use of property
itself does not necessarily amount to a zoning ordinance or land development
regulations. M & A Management Corp. v. City of Melbourne, 653 So. 2d 1050, 1051 (Fla.
5th DCA 2017) (citing T.J.R. Holding Co., Inc. v. Alachua County, 617 So. 2d 798 (1st
DCA 1993). Where an ordinance regulates conduct in a particular zoning district, the
ordinance is not deemed to be a land development regulation subject to the notice
requirements of $166.041(3)(c) of the Florida Statutes. Id.
12. The Court finds M & A Management Corp. v. City of Melbourne to be instructive in this
case. There, the intent of the challenged ordinance was to regulate the conduct of bingo
games and bingo halls. 653 So. 2d at 1050. The ordinance was also one of general
application. Specifically, the ordinance applied to all properties in which bingo halls were
a permitted or a conditional use. lg. In the light of the ordinance's intent, the court held
that any restrictions on plaintiffs use of its property resulted from the nature of the
conduct itself, not from the location of plaintiffs property and thus was not subjected to
the notice requirements of §166.041 (3)(c). lg. at 1051-52.
13. Similarly, in T.J.R. Holding Co. v. Alachua County, the court found that the ordinance in
question intended to regulate, and did only regulate, nudity and sexual conduct within an
alcoholic beverage establishment. 617 So. 2d at 799. The court rejected the plaintiffs
argument that the ordinance was a land use ordinance because it adversely "affected the
use of land," as the intent of the ordinance was to regulate conduct in alcoholic beverage
establishments. ld. at 800.
14. The Ordinance at issue in this case regulates commercial activity, a type of conduct, on
the government's property, and does not constitute a de facto zoning or land use
ordinance. The Ordinance does not attempt to regulate businesses or persons based on
their location, but rather, the Ordinance merely clarifies what conduct is prohibited within
the boundaries of the City's property and buildings.
Case No: 2017-011427-CA-01 Page 4 of7
1 5 . P la in t iff s ' b u s in e s s lo c a t io n o n p r iv a t e , n o n -g o v e rn m e n t a l p r o p e rt y is n o t im p a c te d b y th e
O r d in a n c e . S u b s e c t io n (b ) d o e s n o t in a n y w a y p ro h ib it th e P la in t if f s fr o m a n y ty p e o f
c o n d u c t o n th e ir o w n p r iv a t e p ro p e rt y w h e r e t h e ir p r in c ip a l p la c e o f b u s in e s s is lo c a t e d .
H o w e v e r , a s s is t in g c u s t o m e r s in la u n c h in g je t s k is o f f t h e C it y 's b o a t ra m p c o n s t it u t e s
c o n d u c t a n d is a ls o p a rt o f t h e o n -g o in g b u s in e s s tr a n s a c tio n b e tw e e n th e P la in t iff s a n d
th e ir c u s t o m e r s . T h e e n t ir e p u r p o s e o f t h e b u s in e s s t r a n s a c t io n in th is c a s e is to rid e th e
je t s k i. C o n t r a ry t o P la in t if fs ' a s s e rt io n s in t h e ir M e m o r a n d u m o f L a w in O p p o s it io n to th e
C it y 's M o t io n fo r S u m m a ry J u d g m e n t , t h e e n t ir e t y o f t h e b u s in e s s tr a n s a c t io n d o e s n o t
ta k e p la c e a t th e P la in t iff s ' p la c e o f b u s in e s s . T h e o n ly t ra n s a c tio n th a t is ta k in g p la c e a t
t h e p r in c ip a l p la c e o f b u s in e s s is t h e e x c h a n g e o f m o n e y . T h e re m a in d e r o f th e
t r a n s a c t io n , th e p o rt io n w h e r e t h e c u s t o m e r g e t s w h a t h e o r s h e p a id fo r , ta k e s p la c e o n
th e C it y 's B o a t R a m p , w h e r e P la in t iff s ' e m p lo y e e s p la c e th e je t s k i in th e w a te r a n d a s s is t
t h e c u s t o m e r in la u n c h in g it o f f t h e C it y 's b o a t ra m p . A r g u a b ly , th is c o n d u c t is a lr e a d y
b a r r e d b y s u b s e c t io n (a ) w h ic h p r o h ib it s t h e r e n t in g o f a n y a rt ic le o r s e r v ic e o n C it y
p r o p e rt y . S u b s e c t io n (b ) m e r e ly cl a r ifi e s t h is a lr e a d y e x is t in g p ro h ib it io n to e x p la in th a t
n o p o rt io n o f a n y c o m m e r ci a l t r a n s a c t io n c a n ta k e p la c e o n C ity p ro p e rt y .
1 6 . P la in t iff s f a il t o d e m o n s t r a t e t h a t t h e O r d in a n c e s u b s t a n t ia ll y c h a n g e d t h e p e r m itt e d o r
p ro h ib it e d u s e s , s e e in g a s t h e p e r m itt e d u s e s in t h e G U d is t r ic t d o n o t in c lu d e
c o m m e r c ia l a c t iv it ie s a n d S e c t io n 8 2 -1 (a ) o f t h e C it y C o d e , w h ic h re m a in e d u n c h a n g e d
s in c e 1 9 6 4 , p r e v io u s ly p ro h ib it e d c o m m e r c ia l tr a n s a c t io n s o n C it y p r o p e r ty . T h e
la n g u a g e o f t h e O r d in a n c e c o u ld n o t h a v e s u b s t a n t ia ll y c h a n g e d th e u s e o f la n d w h e n
th e re s t r ic t io n s o n c o m m e r ci a l a c t iv it ie s o n C it y p r o p e rt y w e r e a lr e a d y in p la c e . S e e 8 2 -1
(a ).
1 7 . F u rt h e r m o r e , a s a rt ic u la t e d in M & A M a n a g e m e n t C o rp ., th e f a c t th a t th e p r o p e rt y o w n e r
m ig h t s u ff e r fi n a n c ia l h a r d s h ip d u e to s u c h r e s t r ic t io n d o e s n o t tr a n s fo r m s u c h o r d in a n c e
in t o a z o n in g o r d in a n c e . S e e 6 5 3 S o . 2 d a t 1 0 5 1 . P la in t if f s c a n s t ill c o n d u c t th e ir
b u s in e s s o n t h e ir o w n pr op er t y - th e y ju s t c a n n o t c o n d u c t a p o rt io n o f th e ir c o m m e r c ia l
b u s in e s s a c t iv it y , w h ic h in v o lv e s la u n c h in g t h e ir je t s k is o ff a b o a t ra m p , o n C ity p ro p e rt y .
1 8 . A s s u c h , t h e C o u rt fi n d s th a t t h e O r d in a n c e , b y a d d in g s u b s e c t io n (b ), s im p ly e la b o r a te d
Case No: 2017-011427-CA-0l Page 5 of7
on the already existing prohibition of conducting commercial transactions on City property
(i.e., Section 82-1 (a)) and clarified the types of activities not allowed on City property.
19. For all the aforementioned reasons, it is abundantly clear that the Ordinance is a
regulatory ordinance and falls outside of the notice requirements of§ 166.041 (3)( c )(2) of
the Florida Statutes.
20. Accordingly, summary final judgment on Plaintiff's Second Amended Complaint is
therefore granted in favor of Defendant, City of Miami Beach.
21. The Court further finds that, as a result of its ruling on the City's Motion for Summary
Judgment, the Plaintiffs' Cross-Motion for Summary Judgment must be denied.!'I
DONE and ORDERED in Chambers at Miami-Dade County, Florida on this 16th day of March,
2020.
2017-011427-CA-Ol 03-16-2020 4:37 PM
Hon. Antonio Arzola
CIRCUIT COURT JUDGE
Electronically Signed
Final Order as to All Parties SRS #: 12 (Other)
THE COURT DISMISSES THIS CASE AGAINST ANY PARTY NOT LISTED IN THIS
FINAL ORDER OR PREVIOUS ORDER(S). THIS CASE IS CLOSED AS TO ALL
PARTIES.
Electronically Served:
Aleksandr Boksner, AleksandrBoksner@miamibeachfl.gov
Aleksandr Boksner, AleksandrBoksnerEService@miamibeachfl.gov
Aleksandr Boksner, SandraPerez@miamibeachfl.gov
Allan S Reiss, asr@levinelawfirm.com
Allan S Reiss, eservice@levinelawfirm.com
Case No: 2017-011427-CA-01 Page 6 of7
A n d r e a G u z m a n , A n d r e a G u z m a n @ m ia m ib e a c h fl .g o v
F a ro a t A n d a s h e v a , F a ro a tA n d a s h e v a @ m ia m ib e a c h fl .g o v
F a ro a t A n d a s h e v a , sa n d ra p e re z @ m ia m ib e a c h fl .g o v
J on ah M W ol fs on , e s e r v ic e @ w o lfso n la w fir m .c o m
M a rk A n d r e w F is h m a n , m a rk fis h m a n @ m ia m ib e a c h fl .g o v
M a rk A n d re w F is h m a n , p a u ls a c a @ m ia m ib e a c h fl .g o v
Physically Served:
Case No: 2017-011427-CA-01 Page 7 of7