LTC 259-2020 Third District Court of Appeal Ruling in 3098 Alton Road, LLC v. City of Miami BeachMIAMI BEACH
OFFICE OF THE CITY ATTORNEY
LTC No 259-2020
LETTER TO COMMISSION
TO:
FROM:
DATE:
Mayor Dan Gelber
Members of the City Commission
City Manager Jimmy L. Morales
es arras+sop2_$ () ) lv lei
July 17, 2020
SUBJECT: Third District Court of Appeal Ruling in 3098 Alton Road, LLC v. City of Miami
Beach (Fla. 3d DCA Case No. 3D19-982)
The purpose of this Letter to Commission ("LTC") is to provide formal notification to the Mayor
and City Commission regarding the opinion issued by the Third District Court of Appeal (the "Third
District") in 3098 Alton Road, LLC v. City of Miami Beach. A copy of the complete opinion is
attached hereto as Exhibit "A".
Historical Background
The property that is the subject of this litigation, 3098 Alton Road, Miami Beach, Florida (the
Property"), was cited for four ( 4) separate short-term rental violations between March 2, 2017
and January 25, 2018. On or about January 26, 2018, the City's Building Official made a
determination that the Property's use was inconsistent with its issued Certificate of Occupancy
("CO"). The zoning district in which the Property is located only permits single-family home use,
and documented evidence established that the premises were being utilized for a commercial
use, in violation of the City's laws. Consequently, the City's Building Official revoked the Property's
CO. Due to the revocation of the CO, utility providers were required to disconnect all utility
services to the Property, in compliance with the Florida Building Code. This resulted in Florida
Power and Light disconnecting electricity service, and the City terminating water and sewer
connection lines that service the Property.
On or about June 6, 2018, the Building Official issued a new CO for the Property, upon satisfaction
that the Property met the requirements for the issuance of a new CO. Thereafter, the City's
Public Works Department and Finance Department determined that the water and sewer utility
could not be reconnected to the Property due to unpaid fines previously incurred by Plaintiff at
the Property, including fines totaling $200,000.00 as a result of four (4) separate violations of the
City's short-term rental laws.
In response, Plaintiff filed its Complaint for Writ of Mandamus and Other Relief on November 28,
2018 in the Miami-Dade County Circuit Court. The Complaint against the City alleged Excessive
Punishment - Fines (Count I); Preemption (Count II); Writ of Mandamus (Count Ill); and
OFFICE OF THE CITY ATTORNEY - 1700 CONVENTON CENTER DRIVE - MIAMI BEACH - FLORIDA - 33139
Letter to Com mission Re: 3098 Alton Road, LLC v. City of Miami Beach
July 17, 2020
Page 2 of 3
Negligence (Count IV).1 Following an evidentiary hearing and oral argument, the Circuit Court
entered a Final Judgment as to Count Ill (Writ of Mandamus) only, requiring that the City continue
to pro v ide water and sewer service at the Property, unless there was a valid basis for
disco n tin u in g o r te rm in a tin g su c h utility se rv ic e s pu rsu a n t to th e City Code. Regrettably, the
C ircu it C o u rt de termined that the City Code does not expressly permit the disconnection or
termination of utility services to a property solely for the failure to pay fines issued pursuant to
S e ction 14 2 -9 0 5 of the C ity C o de (the City's short-term rental ordinance).
Third District Court's Ruling in Favor of the Plaintiff
T h is A p p e a l fo c u se s o n ly up o n C o u n t 111 of P la in tiff's A m e n d e d C o mplaint for a Writ of Mandamus.
T he is su e o n a p p e a l w a s extre m e ly na rro w ; sp e cifica lly: (1) w h e th e r a W rit of M a n d a m u s w a s the
ap p ro p ria te le g a l re m e d y to e n fo rce the C ity's disc retio n a ry fu n c tio n of re g u la tin g its m u n ic ip a l
co ntra cts , in c lu d in g w a te r utility co n tra cts; a n d (2 ) w h e th e r S e cti on 11 0 -3 7 of th e C ity C o d e
pe rm itt e d th e C ity's P u b lic W o rks D e p a rt m e nt to refuse w a te r utility se rv ic e ba s e d o n o u tsta n d ing
fi n e s (i.e . sh o rt -te rm re n ta l vio la tio n s ) un re la te d to th e w a te r utility .
In its a p p e a l, the City advanced two arguments:
(1) that the enforcement of the City's contractual rights, including water utility contracts, is not
m in iste ria l in na ture, but discretionary, thereby legally precluding the mandamus relief
sought by the Plaintiff; and
(2) that the City was justified in discontinuing water service to the Property because the City
w a s a u th o riz ed to do so under its contract with the Plaintiff to provide water utility services.
The Third District declined to rule, address or comment upon the City's first legal argument that
M a n d a m u s w a s no t th e ap p ro p ria te remedy for the relief sought in this litigation.
However, it is without question that the Third District Court's opinion on this matter is narrowly
tailored on the City's second argument. The Court held that the City cannot refuse or terminate
water service to a property based upon outstanding City fines that have accrued by the property
owner, which are unrelated and collateral to the water utility, and that Section 116-37 of the City
Code could not be interpreted to refuse to provide water service based on non-payment of
outstanding short-term rental fines.
Notwithstanding the Third District's decision in this limited matter, the underlying litigation remains
active and pending, including the claims by the Plaintiff (1) that the City's short-term renal fine
structure violates the Excessive Punishment's Clause of the Florida Constitution; (2) that the
C ity's sh o rt -te rm re n ta l ord in a nce is preempted by Florida Law; (3) Inverse Condemnation; and
(5 ) B re a c h of C o n tra ct. T h e C ircu it C o u rt ha s no t issu e d a n y ru lin g s o n the se re m a ining claims,
a n d the C ity w ill co n tin u e to de fe n d its le g a l po sitio n o n th e se m a tt e rs.
1 The lower court dismissed Count IV alleging Negligence, and the Plaintiff subsequently filed an
Amended Complaint, asserting the following additional Counts: Inverse Condemnation (Count V) and
Breach of Contract (Count VI).
OFFICE OF THE CITY ATTORNEY - 1700 CONVENTON CENTER DRIVE - MIAMI BEACH - FLORIDA - 33139
Conclusion
The Mayor and City Commission (along with the City Administration) have been inundated with
demands from City residents to address the proliferation of illegal transient rentals, and have
taken an aggressive approach against such illegal and improper use of the City's residential
properties, which have exploded within the City over the last several years. It has been well-
documented that the usage of single and multi-family residences on a short-term transient rental
basis creates an excessive number of guests and vehicles, in addition to causing an abundance
of adverse impacts (including excessive trash, litter, noise and rowdy/illegal behavior), on the
surrounding residences and residential neighborhood. In response to these illegal transient
rentals, the Mayor and City Commission have been deeply committed in their attempts to stem
the overwhelming tide of these rentals, and have been on the forefront in enacting legislation to
address the quality of life impacts from such illegal activities.
In that regard, the City has a compelling interest in preserving the aesthetics, character, and
tranquility of its residential neighborhoods. In light of the foregoing demands of the City residents
on this issue, the City Attorney's Office is currently evaluating the Third District's opinion in this
matter, and will determine the appropriate legal course of action surrounding any further appeal
of this unfortunate ruling, and shall unequivocally continue to defend the City's interests in the
pending lawsuit.
If you have any questions regarding this matter, please do not hesitate to contact Aleksandr
Boksner, Chief Deputy City Attorney.
RJA/AB/mm
OFFICE OF THE CITY ATTORNEY - 1700 CONVENTON CENTER DRIVE- MIAMI BEACH -- FLOR IDA - 33139
@h tr District out of ppeal
State of Florida
Opinion filed July 15, 2020.
Not final until disposition of timely filed motion for rehearing.
No. 3Dl9-982
Lower Tribunal No. 18-39378
City of Miami Beach, etc.,
Appellant,
vs.
3098 Alton Road, LLC, etc.,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Jennifer D.
Bailey, Judge.
Raul J. Aguila, City Attorney, and Jason D. Jacobson, Assistant City Attorney
II, and Steven Rothstein, Deputy City Attorney, for appellant.
Agentis PLLC, and Christopher B. Spuches and Jason A. Martorella, for
appellee.
Before SALTER, HENDON and LOBREE, JJ.
LOBREE,J.
EXHIBIT "A"
The City of M iam i Beach (the "City) ap peals from the entry of a peremptory
writ of man dam us requiring it to restore water and sewer serv ice to pro perty owned
by 3098 Alton Road, LLC (the "property owner"). The City raises severa l
challenges, in cluding that it had the authority to refuse the utility service at issue
pursuan t to provisions of the Code of the City of M iam i Beach, Florida (the "City
Code"). Because the construction of City Code section 110-37 is dispositive and
favors the property owner, we affirm without re aching other issues. 1
Generally, we review a circuit court's issuance of a writ of mandamus for an
abuse of discretion. See Fla. Agency for Health Care Admin. v. Zuckerman Spaeder,
LLP, 221 So. 3d 1260, 1263 (Fla. 1st DCA 2017). However, to the extent that "the
issue raised ... requires us to construe provisions of the City's Code of Ordinances,
our standard of review is de novo." City of Miami v. Nationstar Mortg. LLC, 206
So. 3d 52, 40 Fla. L. Weekly D2232, D2232 (Fla. 3d DCA Sept. 30, 2015) (citing
Dixon v. City of Jacksonville, 774 So. 2d 763 (Fla. 1st DCA 2000)).
1 Among them, we decline to reach the question of whether the duty to connect or
reconnect the water service in this case-prescribed not statutorily but by the City's
own internal policies-was ministerial or discretionary, since the result would be the
same regardless. See City ofHialeah v. State ex rel. Danels, 97 So. 2d 198, 199 (Fla.
3d DCA 1957) (general rule that "writs of mandamus will not issue to control
exercise of official discretion or judgment, or alter or review official action taken in
proper exercise of such discretion or judgment" has limitations, including that "[a]n
official may not act arbitrarily and unwarrantably or in disregard of evidence clearly
and unmistakably pointing to a contrary result and thereafter question the right to
resort to mandamus to compel proper action on his part").
2
In providin g or regulatin g w ater ut ility serv ices, th e Ci ty exerci ses its
pro prietary pow ers and is "govern ed by the sam e law s an d m ay exercise the sam e
rights as a private corp ora tion engaged in a sim ilar undert akin g." Spierer v. C ity of
N orth M iam i B each, 560 So. 2d 1198, 1200 (Fla. 3d D C A 1990) (quoti ng C ity of
W inter Park v. M ontesi, 448 So. 2d 1242, 1245 (Fla. 5th D C A 1984)). Florida law
has long recognized that court s m ay interfe re w ith the pow er "exercised by a tow n
council in the m anagem ent of one of its utilities," w here it exhibits "bad fa ith, fr aud,
arbitra ry action or abuse of pow er." Tow n of Ri viera B each v. State, 53 So. 2d 828,
831 (Fl a. 1951); see also Edris v. Sebrin g U tils. C om m 'n, 237 So. 2d 585,5 87 (Fl a.
2d D C A 1970) ("T he general ru le is that a public utility corp ora tion cann ot refu se
to render th e serv ice w hich it is authorized by its chart er (or by law ) to fu rn ish,
because of som e collatera l m atter not related to that serv ice.").
A w rit of m an dam us, therefo re, m ay lie to com pel the pro vision or resum ption
of utility serv ices in such circum stances. B d. of Superv isors of Englew ood W ater
D ist. v. State ex rel. Englew ood B each M obile H om e Park, Inc., 223 So. 2d 48, 48
(Fl a. 2d D C A 1969) (affirm in g m andam us w here appellants "had been totally
arbitra ry in their refu sal to allow appellee to ... conn ect [ w ith w ater system ]"); see
also C ity of G ainesvill e v. G ainesvill e G as & Ele c. Pow er C o., 62 So. 919, 920 (Fl a.
19 13 ) (observ ing th at "[e lectri city pro vi der ] assum ed the duty im posed by
im plication of law to render a reasonably adequate serv ice durin g the tim e its rights
3
an d duty m ay law fu ll y continue, and su ch duty m ay be enfo rced w h ere no adequate
excu se fo r nonperfo rm ance is appro priately show n "); W oodbury v. T am pa
W aterw orks C o ., 49 So . 556 , 562-63 (Fla. 19 09) (deem in g pro vision of w ater by
pub lic utility en fo rceable thr ough m an dam u s); State v. T am p a W aterw orks C o., 48
So . 639 , 64 0-4 1 (F la. 19 0 8) (holdin g com p lian ce by w ater utility corp ora tion w ith
reasonable requirem ents ofl aw en fo rceable th ro ugh m andam u s).
T he C ity argu es that section 11 0 -37(11 ) of the C ity C o de allow ed it to
disconn ect or refu se reconn ection of the w ater serv ice at the pro pert y . Section 110 -
37 (1 1 ), gov ern in g th e contr act betw een the pro perty ow ner an d the C ity , relevantl y
reads:
A ll contra cts sh all be subject to cancell ation an d serv ice
th ereunder discontinu ed by [C ity ]:
(11) Wh ere an y ow n er or con sum er refu ses or neglects
paym ent of bill , accoun t or ch arge, by w hom soever
in curr ed , fo r or on account of the prem ises w here the w ater
supp ly is fu rn ish ed .
T h e C ity argu es that the pro perty ow n er had accru ed unp aid fi n es in the
hun dred s of th ou san ds of doll ars fo r violation s of an unr elated sh ort -term rental
ordin ance pro h ibiti n g th e comm ercial use of th e pro pert y , that such fi n es fe ll w ithin
th e m eanin g of "b ill , accou nt or char ge," and, therefo re, it w as entitl ed to disconti nue
its w ater serv ice until the pro p erty ow n er paid them .
4
A scer t ai ni n g "[t ]h e p lai n m ean in g of th e statu te is alw ays the start ing poin t in
statu to ry int erpr e tat i o n." G T C, Inc. v. Edgar, 967 So. 2d 781, 785 (Fla. 2007). The
American Heritage Dictionary (2d ed. 1985), defines "bill" as "an itemized list or
statement of fees and charges" or "costs." An "account," in tum, is "a list of ...
monetary transactions," and a "business relationship involving the exchange of
money or credit: a charge account." Id. A "charge, moreover, is an "expense; cost,"
"the price set or asked for something," or "demand[ed] payment." Id. A "fee,"
furthermore, is a "fixed charge" or a "charge for a ... service." Id.
Clearly, a fine is not a list of fees, charges, or monetary transactions. It is also
neither a price or expense, nor a charge for a service. To the contrary, a fine is more
specifically "a sum of money imposed as a penalty for an offense." Id. Even in
isolation, therefore, reasonable and ordinary persons would not understand "bill,"
"account," or "charge" to mean a government-imposed fine. They would not receive
notice from such language that, if they should fail to become current with a different
department of government unrelated to their contract for water service, the City
could terminate it on such grounds. See Fresnedo v. Porky's Gym III, Inc., 271 So.
3d 1185, 1186 (Fla. 3d DCA 2019) ("[C]ourts are required to ... giv[e] meaning to
[ contractual] provisions ... such that an ordinary person would know what he was
contracting away.").
5
T h e C ity u rg es th at at least on e d ictio n ary d efi n es "bill ," in the com m ercial
co n te x t, as a "g en era l item of in d eb tedn ess," Bill, Black's Law Dictionary (5th ed.
1979), and that a fine could be such an item. However, "[w ]hile dictionaries are
beneficial in determining the meaning of individual words, we should not 'make a
fortress out of the dictionary."' Miele v. Prudential-Bache Sec., Inc., 656 So. 2d 470,
472 (Fla. 1995) (quoting Cabell v. Markham, 148 F.2d 737, 739 (2d Cir. 1945)).
Here, a plethora of other City Code sections addressing the same subject, including
110-146, 110-191(a), (b ), (h), (g), and 110-192(a)-( e), consistently qualify the words
"bill " "account " and "charge" with the words "utility " "service " and "utility ' ' ' '
service," even explicitly defining "charges" as "all fees applicable for water, sewer
and stormwater services incurred and/or billed by the city's utility billing system
for services incurred." Fines, therefore, are not contained in the plain meaning of
section 110-37(11), as the lower court found. Cf. Jimenez v. State, 246 So. 3d 219,
227 (Fla. 2018) (resorting to in pari materia analysis to settle incompatible dictionary
definitions).
The fines accrued by the property owner, although linked to the same property
receiving the water service, were for violations of ordinances unrelated and
collateral to the utility. Because the City's disconnection or refusal to resume the
service based on such fines was arbitrary, we do not conclude that the lower court
abused its discretion in issuing the writ. See Gainesville Gas & Elec. Power Co., 62
6
S o . a t 92 0 ; E dr is, 2 3 7 S o . 2 d at 58 7 ; E n g lew o o d B each M o b ile H om e Park, Inc., 223
S o . 2 d at 4 8 .
A ffi rm ed .
7