LTC 055-2018 Ocean Drive Restaurant LB, LLC (_La Baguette_) v. COFFICE OF THE CITY ATTORNEY
LTC No. _ 055-2018
TO: Mayor Dan Gelber
Members of the City Commission
City Manager Jimmy L. Morales
FROM: City Attorney Raul J. Aguil�j.
DATE: February 8, 2018
LETTER TO COVIMISSIUN
SUBJECT: Ocean Drive Restaurant LB. LLC ("La Baauette") v. Citv of Miami Beach,
Circuit Civil Court Case No. 2018-002803 CA 15
The purpose of this Letter to Commission is to provide the Mayor and City Commission with
detailed information surrounding the emergency closure of La Baguette pursuant to the two (2)
Administrative Orders issued by the City Manager, and the impending civil lawsuit that was filed
against the City on January 29, 2018.
The City was notified of numerous complaints from citizens and tourists regarding the improper
and unscrupulous business practices that have transpired, or that are presently occurring at La
Baguette. In response to these notification (s), the Miami Beach Police Department (in
consultation with the City Attorney's Office), initiated an undercover investigation to determine
the extent and scope of La Baguette's improper business operations.
The investigation revealed that La Baguette was engaged in direct habitual conduct that violated
City and State law, thereby endangering the health, safety and welfare of the City's residents
and visitors. Specifically, the Police Department's investigation resulted in:
• The arrest of three (3) La Baguette's employees who either sold, gave or served an
alcoholic beverage to a person under twenty-one (21) years of age, which is a State law
criminal offense pursuant to Section 562.11 of the Florida Statutes.
• La Baguette employees either permitted, allowed or facilitated their customers to remove
open containers of alcoholic beverages from the Premises in violation of Section 70-87
of the City of Miami Beach Code of Laws and Ordinances (the "City Code").
• La Baguette failing to properly reveal drink menu specials, which were not always
disclosed or displayed in a manner consistent with those requirements set forth in
Section 82-381 of the City Code.
Subsequently, the City Manager issued his Administrative Order revoking La Baguette's
Business Tax Receipt and Certificate of Use, on an emergency basis, which determined that La
Baguette was engaged in conduct that was a serious danger to the public health, welfare or
safety based upon these violation(s) of State law and the City Code. Furthermore, the City
Letter to Commission
RE. Ocean Drive Restaurant LB, LLC ("La Baauette") v. City of Miami Beach,
Circuit Civil Court Case No. 2018-002803 CA 15
February 8, 2018
Page 2 of 2
Manager issued an Order of Immediate Suspension of La Baguette's Sidewalk Cafe Permit and
Sidewalk Cafe Operations, deeming that such conduct to be a serious danger to the public
health, welfare or safety.
In response to these Administrative Revocation Orders, La Baguette initiated a legal action
against the City, and filed their Verified Complaint for Emergency Stay, Temporary Restraining
Order, and Injunctive Relief in the Circuit Court of the Eleventh Judicial Circuit. The lawsuit
sought an Order that would have enjoined the City's ability to close the restaurant, and would
have expressly authorized La Baguette to continue its questionable business operations,
irrespective of the City Manager's Administrative Revocation Orders.
The Circuit Court scheduled an emergency hearing this past Monday, February 5, 2018 at
9:00 a.m. to hear the merits of La Baguette's Complaint for Injunctive Relief. Circuit Court
Judge Jose M. Rodriguez heard legal argument on the Verified Complaint for Emergency Stay
and Supporting Affidavit at the emergency hearing, and issued an Order summarily denying La
Baguette's request for injunctive relief against the City. A copy of the Order denying Injunctive
Relief is attached to this Letter to Commission.
The City Manager's Administrative Revocation Orders (including the six (6) Notices of Violation
issued by the Code Compliance Department) are scheduled before the Special Master on
February 13, 2018 at 9:00 a.m.
Should you have any questions or concerns about any of the foregoing, please don't hesitate to
contact me.
RJA/AB/sp
IN THE CIRCUIT COURT OF THE
ELEVENTH JUDICIAL CIRCUIT
IN AN -D - FOR -M-IAMI=DADS
COUNTY, FLORIDA
CIVIL DIVISION
OCEAN DRIVE RESTAURANT LB, CASE No. 2018 -CA -002803 CA15
LLC, a Florida Limited Liability Company,
Plaintiff,
V.
THE CITY OF MIAMI BEACH, a
Florida municipal corporation,
Defendant.
DEFENDANT'S PROPOSED FINDINGS OF FACTS
AND CONCLUSIONS OF LAW
This cause came before the Court on February 5, 2018 pursuant to Plaintiff's
request for an Emergency Hearing on Plaintiff's Verified Complaint for Emergency Stay,
Temporary Restraining Order and Injunctive Relief. After the hearing, and considering
the arguments and evidence in Plaintiff's case in chief, the Court finds, as more fully set
forth below, that Plaintiff has not met its burden to establish a prima facie case for the
issuance of a temporary injunction under Florida law.
I. FINDINGS OF FACTS
Plaintiff, OCEAN DRIVE RESTAURANT LB, LLC d/b/a La Baguette ("La
Baguette") is a Florida limited liability company doing business in Miami Beach, Florida
as a restaurant/bar under the name La Baguette at 1052 Ocean Drive B, Miami Beach,
Florida (the "Premises"). Plaintiff has been operating its restaurant bar at the above -
location since October of 2012 pursuant to a Business Tax Receipt and Certificate of
CASE No. 2018 -CA -002803 (1) CA15
Use issued by the City of Miami Beach (the "City"), and has been operating its sidewalk
cafe at the above -location since October of 2012 pursuant to a sidewalk cafe permit,
also issued by the City.
The City is a Florida municipal corporation which, as previously mentioned,
approved and issued licenses for Plaintiff's business, including a Business Tax Receipt,
Certificate of Use and Sidewalk Cafe permit.
In the past several weeks, and as part of an ongoing investigation, the Miami
Beach Police Department has conducted multiple investigative operations into La
Baguette and its business operations. As a result, several individuals employed by La
Baguette were allegedly involved in criminal conduct occurring at the Premises.
Specifically, and pursuant to their investigative operations, Miami Beach Police
Department ("MBPD") Officers arrested three (3) of Plaintiff's employees engaged in
selling, giving, or serving an alcoholic beverage to a person under twenty-one (21)
years of age, which is a criminal violation of State law, and a second degree
misdemeanor.
Further, employees of La Baguette allegedly allowed or facilitated customers of
La Baguette to take open containers of alcoholic beverages from the Premises in
violation of the City of Miami Beach Code of Laws and Ordinances (the "City Code")
As a result, Plaintiff was served with three (3) Notices of Violation by the City of Miami
Beach Code Compliance Department (the "Code Compliance Department").
Additionally, MBPD and the Miami Beach City Manager (the "City Manager")
allege that those prices for food or drink menu items, or food or drink menu specials,
have not been properly disclosed or displayed in a manner consistent with the City
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CASE No. 2018 -CA -002803 (1) CA15
Code, and the Code Compliance Department issued three (3) Notices of Violation for
failing to adhere to the standards, criteria and conditions required of sidewalk cafes.
Therefore, pursuant to Sections 102-381 and 102-383 of the City Code, the City
Manager issued an Order revoking La Baguette's Business Tax Receipt, on an
emergency basis, as he determined that La Baguette was engaged in conduct that was
a serious danger to the public health, welfare or safety, and also that habitual conduct
had occurred at the Premises that violated City and State law. Likewise, pursuant to
Sections 14-404 and 14-406 of the City Code, the City Manager issued, in the same
Order, the revocation of La Baguette's Certificate of Use, on an emergency basis, as he
determined that La Baguette was engaged in conduct that was a serious danger to the
public health, welfare or safety, and also that habitual conduct had occurred at the
Premises that violated City and State law.
The City has deemed such conduct to be a "life safety violation" as that term is
defined in Section 82-370 of the City Code, and the City Manager exercised his
authority and subjected Plaintiff to mandatory fines and enhanced penalties, due to the
serious danger and/or risk to the public health, safety or welfare. This resulted in the
City Manager issuing an Order of Immediate Suspension of Sidewalk Cafe Permit and
Sidewalk Cafe Operations, consistent with Section 82-371 of the City Code.
Plaintiff challenged the City Manager's determination regarding the two (2)
Orders and the six (6) Notices of Violation via an administrative appeal, and the parties
are scheduled to appear before the Special Master on February 13, 2018 at 9:OOam for
full hearing on these matters. However, rather than waiting for the final outcome of the
Special Master's hearing that will take place next week, Plaintiff also filed this Complaint
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CASE No. 2018 -CA -002803 (1) CA15
in the Circuit Court. More specifically, Plaintiff filed its Verified Complaint for Emergency
Stay, Temporary Restraining Order and Injunctive Relief a week prior to the hearing on
January 29, 2018. It is abundantly clear that Plaintiff has filed for an extraordinary and
limited remedy that must be used scarcely before it has exhausted its administrative
appeal process.
II. ELEMENTS FOR THE ISSUANCE OF A TEMPORARY INJUNCTION
AND CONCLUSIONS OF LAW
A temporary injunction should only be granted where there is a showing of: (1)
likelihood of irreparable harm and unavailability of an adequate remedy at law, (2)
substantial likelihood of success on the merits, (3) that the threatened injury to the
petitioner outweighs any possible harm to the respondent, and (4) that the granting of
the preliminary injunction will not disserve the public interest. Biscayne Park, LLC v.
Wal-Mart Stores East, LP, 34 So.3d 24 (3rd DCA 2010); Cosmic Corp. v. Miami -Dade
County, 706 So. 2d 347 (3rd DCA 1998).
The Court finds, as a matter of law that Plaintiff failed to set forth facts sufficient
to meet the above standard in any aspect. First, Plaintiff failed to establish the likelihood
of irreparable harm and unavailability of an adequate remedy at law. Under Florida Law,
an action for monetary damages constitutes an adequate remedy at law. Genchi v.
Lower Florida Keys Hospital District, 45 So. 3d 915 (3rd DCA 2010). Additionally, lost
revenue and lost profits from the inability to rent hotel rooms can be compensated by an
action for money damages. See, Daytona MIGI v. Daytona Automotive Fiberglass, Inc.,
388 So. 2d 228 (Fla. 5th DCA 1980); Belcher v. Import Cars, Ltd., 246 So. 2d 584 (3rd
DCA 1971), Liza Danielle, Inc. v. Jamko, Inc., 408 So. 2d 735 (3rd DCA 1982)
(uncertainty or difficulty in proving a claim for damages will not preclude an action for
rd
CASE No. 2018 -CA -002803 (1) CA15
money damages). Plaintiff argues that the irreparable harm suffered by Plaintiff is
ongoing and difficult to calculate. This Court disagrees. Plaintiff has been operating its
business since October, 2012 for roughly five (5) years. Should Plaintiff prevail in the
final outcome of the case, it is entirely possible to examine Plaintiff's profits throughout
its five (5) years of operation and estimate an average of profits Plaintiff has made
during the months that its business will remain closed. Moreover, Plaintiff filed this
Verified Complaint without waiting for the final outcome of the Special Master's hearing
that will take place on February 13, 2018 and, therefore, has failed to exhaust its
administrative remedies. Accordingly, stating that Plaintiff has no adequate remedy at
law is unfounded and inaccurate.
Secondly, Plaintiff has failed to establish a substantial likelihood of success on
the merits. The substantial likelihood of success on the merits requires an analysis of
the plaintiff's ability to make a showing of each of the required elements of the claims
asserted. Plaintiff's Verified Complaint, however, completely fails to reasonably
articulate any cause of action that Plaintiff is pursuing against the City. This Court
cannot possibly determine that the Plaintiff has a substantial likelihood of success on
the merits when Plaintiff's Verified Complaint is utterly devoid on its face of any
cognizable claim.
As to the third element, the threatened injury to the Plaintiff does not outweigh
the harm to the City. In fact, it is a well-established law that a government entity suffers
harm if its ability to enforce a duly enacted ordinances or laws is dampened or
restricted. Manatee County v. 1187 Upper James of Fla., LLC, 104 So. 3d 1118, 1121
(2nd DCA 2012); Miami -Dade County v. Fernandez, 905 So.2d 213 (3rd DCA 2005). On
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CASE No. 2018 -CA -002803 (1) CA15
the contrary, depriving a municipality of its authority and ability to enforce its own
ordinances and state law violations, pursuant to its recognized police powers, that occur
within its jurisdictional bounds would result in substantial injury to the municipality.
Plaintiff has also completely failed to satisfy the fourth element because both the
City and the public have an interest in seeing that a government entity's laws,
ordinances and permit requirements are observed. Cf. Ware v. Polk County, 918 So. 2d
977, 980 (2nd DCA 2005). In fact, the public has a particularly strong interest in the
situation at hand, as Plaintiff's employees were observed and arrested for serving
alcoholic beverages to minors and permitting individuals to leave the Premises with
open containers of alcoholic beverages, thereby endangering the community as a
whole.
Accordingly, and for the reasons delineated above, Plaintiff has failed to meet its
burden of proof as to sufficiently satisfy any of the four (4) required elements necessary
for the entry of a temporary injunction. Therefore, Plaintiff's Verified Complaint for
Emergency Stay, Temporary Restraining Order and Injunctive Relief is denied.
This Court retains jurisdiction to entertain a Motion for Attorneys' fees, and court
costs.
02/06/18.
DONE AND ORDERED in Chambers at Miami -Dade County, Florida, on
0
.,,a
JOSE WODRIGUEZ
CIRCUIT COURT JUDGE
CASE No. 2018 -CA -002803 (1) CA15
The parties served with this Order are indicated in the accompanying 11th Circuit email
rn�nfir_mati_on_ which includes-alI emails provided b -y the-submitter—The-movant-shall
movant_shall
IMMEDIATELY serve a true and correct copy of this Order, by mail, facsimile, email or
hand -delivery, to all parties/counsel of record for whom service is not indicated by the
accompanying 11th Circuit confirmation, and file proof of service with the Clerk of
Court.
Signed and stamped original Order sent to court file by Judge Rodriguez' staff.
Copies to:
markfishman@miamibeachfl.gov
aleksandrboksnerne..miamibeachfl.aov
tpanza@panzamaurer.com
rbulfin@panzamaurer.com
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