2013-28187 Reso RESOLUTION NO. 2013-28187
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE
CITY OF MIAMI BEACH, FLORIDA, APPROVING AND APPOINTING,
PURSUANT TO SECTIONS 142-108(G)(3) AND 118-537(B) OF THE
MIAMI BEACH CITY CODE, MURRAY GREENBERG, TO SERVE AS
SPECIAL MASTER, ON THE APPEAL OF "IN RE: 42 STAR ISLAND
DRIVE, MIAMI BEACH, FL", CASE NO. HPSM-13-001, DRB FILE NO.
22936.
WHEREAS, on March 26, 2013, the Miami Design Preservation League, Inc., (MDPL), by its
attorney Kent Harrison Robbins, filed an appeal of the March 6, 2013 City of Miami Beach Design
Review Board Order on File No. 22936, approving the Application for Design Review Approval for the
construction of a new 2-story home, to replace an existing home constructed prior to 1942, to be
demolished, at 42 Star Island Drive; and
WHEREAS, Section 142-108(8)(3) of the Miami Beach City Code, requires that this appeal be
heard by a Special Master appointed by the City Commission, in accordance with the procedures set
forth in Section 118-537(b) of the Miami Beach City Code; and
WHEREAS, the Special Master appointed by the City Commission to hear such appeals is
Warren Bittner, Esq.; and
WHEREAS, on April 4, 2013, Appellant, MDPL, filed a Verified Motion to Disqualify Special
Master Bittner; and
WHEREAS, on April 5, 2013, Special Master Bittner issued an order on the Appellant's
Verified Motion to Disqualify whereby he ruled that although the Motion to Disqualify was legally
insufficient on various grounds, he would nevertheless voluntarily recuse himself as the Special
Master in this appeal as "it would be in the best interests for the administration of justice" and
"consistent with Cannon 2 & 3 of the Florida Code of Judicial Conduct"; and
WHEREAS, the City Attorney's Office has identified and circulated resumes to the City
Commission and counsel for the parties to the appeal for three candidates for appointment, as an
alternate Special Master to replace Special Master Bittner; and
WHEREAS, while all the candidates are eminently qualified to serve, counsel for the parties
have indicated they have no objection to the appointment of Murray Greenberg to serve; and
WHEREAS, the City Attorney's Office has confirmed that Murray Greenberg satisfies the
requirements and expertise to perform as Special Master in this appeal; and
WHEREAS, since Murray Greenberg's appointment is limited to one appeal, his service will
not preclude other attorneys of the law firm in which he serves as Of Counsel, Stearns Weaver, from
appearing before the City Commission or any City Board on any issue, nor would the firm be
prohibited from lobbying or litigating against the City.
r
NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY COMMISSION
OF THE CITY OF MIAMI BEACH, FLORIDA THAT:
Based on the foregoing, Murray Greenberg is hereby appointed to serve as Special Master, in
the appeal of "In Re: 42 Star Island Drive, Miami Beach, FL", Case No. HPSM-13-001, DRB File No.
22936.
PASSED and ADOPTED this 17th day of April 2013.
A A-
�.• '' A I HERRE BO ER,
AYOR
� .INCORP �
ATTEST: ORATED:•�� ..��
CH 26TM��J
RAFAEL E. GRANADO,
CITY CLERK
APPROVED AS TO
FORM & LANGUAGE
EXE TION
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T:WGENDA\2013Wpril 17\Special Master Resolution 42 Star Island.doc
Page 2 of 2
COMMISSION ITEM SUMMARY
Condensed Title:
A Resolution Approving And Appointing, Pursuant To Sections 142-108(G)(3)And 118-537(B) Of The
Miami Beach City Code, , To Serve As Special Master, On The Appeal Of"In Re: 42 Star
Island Drive", Case No. HPSM-13-001, DRB File No. 22936.
Key Intended Outcome Supported:
Protect Historic Building Stock.
Supporting Data (Surveys, Environmental Scan, etc.): In the 2012 Community Satisfaction Survey
78%of the residents who had sufficient knowledge about historic preservation gave it positive ratings;and
82%of business owners rated the City of Miami Beach's historic preservation efforts as very or somewhat
effective.
Item Summa /Recommendation:
On March 26, 2013, the Miami Design Preservation League, Inc., (MDPL), through its attorney Kent
Harrison Robbins, filed an appeal of the March 6, 2013 DRB Order on File No. 22936, approving the
Application for Design Review Approval for the construction of a new 2-story home,to replace an existing
home constructed prior to 1942, to be demolished, at 42 Star Island Drive. Section 142-108(8)(3)of the
City Code, requires that this appeal be heard by a Special Master appointed by the City Commission, in
accordance with the procedures set forth in Section 118-537(b) of the City Code. The Special Master
appointed by the City Commission to hear such appeals is Warren Bittner.
On April 4, 2013, the MDPL filed a Motion to Disqualify Special Master Bittner. Mr. Robbins stated that
Special Master Bittner is representing the City of Miami, as Deputy City Attorney, in two preexisting,
ongoing and"contentious"litigation cases where Mr.Robbins is the opposing counsel. For said reason,Mr.
Robbins explained that the MDPL fears that it will not receive a fair hearing and determination in the
present case. On April 5, 2013, Special Master Bittner ruled that although the Motion to Disqualify was
legally insufficient,he would nevertheless voluntarily recuse himself as"it would be in the best interests for
the administration of justice"and"consistent with Cannon 2&3 of the Florida Code of Judicial Conduct."
The City Attorney and the City Manager hereby request that this appeal be transferred to a specially
appointed Special Master who, as required by Section of 118-537(b)(3)of the City Code, is an attorney in
good standing with the Florida Bar, with expertise in the area of historic preservation.
Advisory Board Recommendation:
N/A
Financial Information:
Source of Amount Account
Funds:_, $250.00/hour - Maximum of $1,250 per 011-0210-000312
S/�; hearing.
OBPI Total $1,250.
Financial Impact Summary:
City Clerk's Office Legislative Tracking:
Rafael E. Granado, City Clerk
Sign-Offs:
Department Director City to ey ity Manager
REG JS JM
T:WGENDA 013\April 17\CHIEF SPECI L MAST UMMA 03 42 STAR ISLAND.doc
'� Ij AGENDA ITEM r
A Y 1 I E A DATE
/01AMIBEACH
City of Miami Beath, 1700 Convention Center Drive,Miami Beach, Florida 33139,www.miamibeachfl.gov
COMMISSION MEMORANDUM
TO: Mayor Matti Herrera Bow and Memb of the City Commission
FROM: Jose Smith, City At rn �
Jimmy L. Morales, City ger
DATE: April 17, 2013
SUBJECT: A RESOLUTION OF THE MAYO AND CITY COMMISSION OF THE CITY
OF MIAMI BEACH, FLORIDA, APPROVING AND APPOINTING, PURSUANT
TO SECTIONS 142-108(G)(3) AND 118-537(B) OF THE MIAMI BEACH CITY
CODE, , TO SERVE AS SPECIAL MASTER, ON THE APPEAL
OF "IN RE: 42 STAR ISLAND DRIVE, MIAMI BEACH, FL", CASE NO.
HPSM-13-001, DRB FILE NO. 22936.
ADMINISTRATION RECOMMENDATION
Approve the resolution and appoint a Special Master for the appeal of "In Re: 42 Star Island
PP PP P PP
Drive, Miami Beach, FL", Case No. HPSM-13-001, DRB File No. 22936.
ANALYSIS
On March 26, 2013, the Miami Design Preservation League, Inc., (MDPL), through its attorney
Kent Harrison Robbins, filed an appeal of the March 6, 2013 City of Miami Beach Design
Review Board Order on File No. 22936, approving the Application for Design Review Approval
for the construction of a new 2-story home, to replace an existing home constructed prior to
1942, to be demolished, at 42 Star Island Drive. (See Exhibit "A.")
Section 142-108(g)(3) of the Miami Beach City Code, requires that this appeal be heard by a
Special Master appointed by the City Commission, in accordance with the procedures set forth
in Section 118-537(b) of the Miami Beach City Code. The Special Master appointed by the City
Commission to hear such appeals is Warren Bittner. (See Resolution 2010-27524, attached
hereto as Exhibit "B.")
On April 4, 2013, Appellant, MDPL, filed a Verified Motion to Disqualify Special Master Bittner.
(See Exhibit "C.") Mr. Robbins stated that Special Master Bittner is representing the City of
Miami, as Deputy City Attorney, in two preexisting, ongoing and "contentious" litigation cases
where Mr. Robbins is the opposing counsel. For said reasons, Mr. Robbins explained that the
MDPL "fears that it will not receive a fair hearing and determination in the present appeal due to
specific prejudice and/or bias of the Special Master as a result of the ongoing adversarial
relationship between its counsel and Special Master Bittner."
On April 5, 2013, Special Master Bittner issued an order on the Appellant's Verified Motion to
Disqualify. (See Exhibit "D.") Special Master Bittner ruled that although the Motion to Disqualify
was legally insufficient on various grounds, he would voluntarily recuse himself as the Special
Master in this appeal as "it would be in the best interests for the administration of justice" and
"consistent with Cannon 2 & 3 of the Florida Code of Judicial Conduct."
The assigned Special Master having recused himself and having withdrawn from further
proceedings in this appeal, the City Attorney and the City Manager hereby request that this
appeal be transferred to a specially appointed Special Master who, as required by Section of
118-537(b)(3) of the Miami Beach City Code, is an attorney in good standing with the Florida
Bar, with expertise in the area of historic preservation.
JLM/JS/reg e)
T:\AGENDA\2013\April 17\CHIEF SPECIAL MASTER MEMO 42 STAR ISLAND.doc
The Law Offices of Kent Harrison Robbins
RECMVFA
March 26, 2013
By Hand Delivery MAR 2 6 2013
City Clerk CLERK OF
City of Miami Beach SPECIAL MASTER
1700 Convention Center Drive
Miami Beach, Florida 33139
Re: Miami Design Preservation League Inc.'s Notice of Appeal of the March 6, 2013 City of
Miami Beach Design Review Board Order on File No. 22936 approving the Application
for Design Review Approval for the construction of a new 2-story home, to replace an
existing pre-1942 architecturally significant home, to be demolished, at 42 Star Island
Drive, Miami Beach, Florida.
To the City Clerk of Miami Beach:
Miami Design Preservation League, Inc., a not-for-profit Florida Corporation, notices this Clerk
that it is filing its Notice of Appeal challenging the March 6, 2013 Order by the City of Miami
Beach Design Review Board on File No. 22936 approving the Application for Design Review
Approval for the construction of a new 2-story home, to replace an existing pre-1942
architecturally significant home, to be demolished, at 42 Star Island Drive, Miami Beach,
Florida. The March 6, 2013 Design Review Board Order is attached hereto.
Section 142-108(g)(3) of the Miami Beach City Code authorizes this appeal to a special master
(appointed by the Miami Beach City Commission) and to follow the procedures set forth in
§118-537(b) Miami Beach Code.
The filing fee of$430.00 (fifty percent of the fee paid by the Applicant below) is attached.
aHarrison ins
Attorney for Miami Design Preservation League, Inca
Enclosure = T
o .
no
cc: Gary Held, First Assistant City Attorney, by email to GaryHeldgmiamibeachfl.Qoi� -
Thomas Mooney, Design and Preservation Manager, by email to y
ThomasMooney�miamibeachfl.gov
Michael Larkin, Esq. by email to mlarkin a,BRZoningLaw.com
1224 Washington Avenue Miami Beach FL 33139-4614
305 532 0500 Fax 305 5310150
info®khrla•.voffices.com khrlawoffices.com EXHIBIT A
Offices—Miami Beach FL I Montreal QC I San Juan PR
DESIGN REVIEW BOARD
City of Miami Beach, Florida
a
I
MEETING DATE: March 5, 2013
FILE NO: 22936
PROPERTY: 42 Star Island Drive
LEGAL: Lot 42, Star Island, according to the Plat Thereof, as Recorded in Plat
Book 5, Page 52, of the Public Records of Miami-Dade County, Florida,
a/k/a Lot 42, Corrected Plat of Star Island, according to the Plat Thereof,
as Recorded in Plat Book 31, Page 60, of the Public Records of Miami-
Dade County, Florida.
IN RE: The Application for Design Review Approval for the construction of a new
2-story home, to replace an existing pre-1942 architecturally significant
home, to be demolished.
ORDER
The applicant, Dr. Leonard Hochstein, filed an application with the City of Miami Beach Planning
Department for Design Review Approval.
The City of Miami Beach Design Review Board makes the following FINDINGS OF FACT,
based upon the evidence, information, testimony and materials presented at the public hearing
and which are part of the record for this matter:
A. Based on the plans and documents submitted with the application, testimony and
information provided by the applicant, and the reasons set forth in the Planning
Department Staff Report, the project as submitted is not consistent with Design Review j
Criteria Nos. 6 & 8 in Section 118-251 of the Miami Beach Code..
I,
B. The project would be consistent with the criteria and requirements of section 118-251 if 1
the following conditions are met:
1. Revised elevation, site plan and floor plan drawings shall be submitted to and I
reviewed by staff; at a minimum, such drawings shall incorporate the following: p�
-IY``
Page 2 of 6
Meeting Date: March 5, 2013
DRB File No. 22936
a. A bronze plaque, which includes a brief history of the original home, along
with an engraved photo of either the street front or water front elevation,
shall be provided in an area at the front of the property, in a manner to be
reviewed and approved by staff.
b. Color photos and measured drawings, including floor plans and ;
elevations of the existing home, shall be provided.
C. The applicant, as proffered, shall carefully preserve and retain one or
more of the existing decorative ceilings for incorporation into the
proposed main home, in a manner to be reviewed and approved by staff.
d. The overall height to the top of the parapet of the garage within the front
yard of the property shall be reduced by at least 1'-5", from 25'-5" to a
maximum height of 24'-0°, in a manner to be reviewed and approved by
staff.
e. The overall height to the top of the parapet of the guest house within the
rear yard of the property shall be reduced by at least 1'-4", from 264" to
a maximum height of 25'-0", in a manner to be reviewed and approved by
staff.
f. The overall height from the top of the second floor slab to the top of the
roof slab of the main residence shall be reduced, by at least 1'-0", in a
manner to be reviewed and approved by staff.
g. The architecture of the proposed stairwell and elevator bulkhead shall be
much further simplified, the total footprint minimized, and shall be
substantially composed of a simple glass enclosure on all sides with a flat
roof slab, in a manner to be reviewed and approved by staff.
h. The final design and details of the driveway and auto court at the front of
the home, including paving materials and patterns, shall be substantially
further developed and refined in a manner more closely integrated with
the central siting and architectural composition of the main residence, in a
manner to be reviewed and approved by staff.
i. All windows, exterior doors, balustrades, exterior railings, and exterior
decorative features and details shall be subject to the review and
approval of staff.
j. Manufacturer's drawings and Dade County product approval numbers for
all new windows, doors and glass shall be required, rfor p to the issuance
of a building permit.
k. All roof-top fixtures, air-conditioning units and mechanical devices shall
be clearly noted on a revised roof plan and shall be screened from view,
I
in a,manner to be approved by staff.
e
I. Prior to the issuance of a Certificate of Occupancy, the project Architect
shall verify, in writing, that the subject project has been constructed in
accordance with the plans approved by the Planning Department for
Building Permit.
Page 3 of 6
Meeting Date: March 5, 2013
DRB File No. 22936
2. A revised landscape plan, and corresponding site plan, shall be submitted to and
approved by staff. The species type, quantity, dimensions, spacing, location and
overall height of all plant material shall be clearly delineated and subject to the j
review and approval of staff. At a minimum, such plan shall incorporate the
following:
a. The applicant shall explore alternative pavement materials or combination
of materials, for the front entrance drive and plaza, in a manner to be
reviewed and approved by staff.
b. The landscape plan shall be revised to more accurately reflect the
rendering provided for the rear of the home, subject to the review and
approval of staff.
C. The landscaped areas at the rear of the home shall be substantially
consistent with the percentage of pervious green space shown in the
landscape plan provided with the application, subject to the review and
approval of staff.
d. The use of sod within the side yards of the home shall be reduced.
e. Street trees shall be required within the swale at the front of the property
if not in conflict with existing utilities.
f. Any existing plant material within the public right-of-way may be required
to be removed, at the discretion of staff.
g. A fully automatic irrigation system with 100% coverage and an automatic
rain sensor in order to render the system inoperative in the event of rain.
Right-of-way areas shall also be incorporated as part of the irrigation
system.
h. The utilization of root barriers and/or structural soil, as applicable, shall be
clearly delineated on the revised landscape plan.
i. The applicant shall verify, prior to the issuance of a Building Permit, the
exact location of all backflow preventors and all other related devices and
fixtures; such fixtures and devices shall not be permitted within any
required yard or any area fronting a street or sidewalk. The location of
backflow preventors, siamese pipes or other related devices and fixtures,
if any, and how they are screened with landscape material from the right-
of-way, shall be clearly indicated on the site and landscape plans and
shall be subject to the review and approval of staff.
j. The applicant shall verify, prior to the issuance of a Building Permit, the
exact location of all applicable FPL transformers or vault rooms; such
transformers and vault rooms, and all other related devices and fixtures,
shall not be permitted within any required yard or any area fronting a
street or sidewalk. The location of any exterior transformers, and how j
they are. screened with landscape material from the right-of-way, shall be I
clearly indicated on the site and landscape plans and shall be subject to
the review and approval of staff.
I
Page 4 of 6
Meeting Date: March 5, 2013 I
DRB File No. 22936
k. Prior to the issuance of a Certificate of Occupancy, the Landscape
Architect or the project architect shall verify, in writing, that the project is
consistent with the site and landscape plans approved by the Planning i
Department for Building Permit. f
3. The final exterior surface color scheme, including color samples, shall be subject
to the review and approval of staff and shall require a separate permit. E
4. The final building plans shall meet all other requirements of the Land
Development Regulations of the City Code.
5. The applicant may be required to submit a separate analysis for water and sewer '
requirements, at the discretion of the Public Works Director, or designee. Based
on a preliminary review of the proposed project, the following may be required by
the Public Works Department:
a. Remove/replace sidewalks, curbs and gutters on all street frontages, if
applicable. Unless otherwise specified, the standard color for city
sidewalks is red, and the standard curb and gutter color is gray.
b. Mill/resurface asphalt in rear alley along property, if applicable.
G. Provide underground utility service connections and on-site transformer
location, if necessary.
d. Provide back-flow prevention devices on all water services.
e. Provide on-site, self-contained storm water drainage for the proposed
development.
f. Meet water/sewer concurrency requirements including a hydraulic water
model analysis and gravity sewer system capacity analysis as determined
by the Department and the required upgrades to water and sewer mains
servicing this project.
i
g. Payment of City utility impact fees for water meters/services.
h. Provide flood barrier ramps to underground parking or minimum slab
elevation to be at highest adjacent crown road elevation plus 8". I
{
i. Right-of-way permit must be obtained from Public Works.
j. All right-of-way encroachments must be removed.
k. All planting/landscaping in the public right-of-way must be approved by I
the Public Works and Parks Departments.
6. The project shall comply with any landscaping or other sidewalk/street
improvement standards 'as may be prescribed by a relevant Urban. Design
Master Plan approved prior to the completion of the project and the issuance of a
Certificate of Occupancy, in a manner to be reviewed and coordinated by staff.
7. The Final Order shall be recorded in the Public Records of Miami-Dade County,
p r for to the issuance of a Building Permit. C (,�
r.
Page 5of6
Meeting Date: March 5, 2013
DRB File No. 22936
8. At the time of completion of the project, only a Final Certificate of Occupancy
(CO) or Final Certificate of Completion (CC) may be applied for; the staging and
scheduling of the construction on site shall take this into account. All work on
site must be completed in accordance with the plans approved herein, as well as
any modifications approved or required by the Building, Fire, Planning, CIP and li
Public Works Departments, inclusive of all conditions imposed herein, and by
other Development Review Boards, and any modifications required pursuant to
field inspections, prior to the issuance of a CO or CC. This shall not prohibit the
issuance of a Partial or Temporary CO, or a Partial or Temporary CC. `!
9. The Final Order is not severable, and if any provision or condition hereof is held
void or unconstitutional in a final decision by a court of competent jurisdiction, the
order shall be returned to the Board for reconsideration as to whether the order
meets the criteria for approval absent the stricken provision or condition, and/or it
is appropriate to modify the remaining conditions or impose new conditions.
10. The conditions of approval herein are binding on the applicant, the property's
owners, operators, and all successors in interest and assigns.
11. Nothing in this order authorizes a violation of the City Code or other applicable
law, nor allows a relaxation of any requirement or standard set forth in the City
Code.
IT IS HEREBY ORDERED, based upon the foregoing findings of fact,the evidence, information,
testimony and materials presented at the public hearing, which are part of the record for this
matter, and the staff report and analysis, which are adopted herein, including the staff
recommendations which were adopted by the Board, that the Application for Design Review
approval is GRANTED for the above-referenced project subject to those certain conditions
specified in Paragraph B of the Findings of Fact (Condition Nos. 1-11, inclusive) hereof, to
which the applicant has agreed.
PROVIDED, the applicant shall build substantially in accordance with the plans approved by the
Design Review Board, as determined by staff, entitled "Hochstein Residence", as prepared by
Kobi Karp Architecture, dated January 21, 2013, modified in accordance with the conditions set
forth in this Order and staff review and approval.
No building permit may be issued unless and until all conditions of approval that must be
satisfied prior to permit issuance as set forth in this Order have been met. The issuance of
Design Review Approval does not relieve the applicant from obtaining all other required
Municipal, County and/or State reviews and permits, including final zoning approval. If adequate
handicapped access is not provided on the Board-approved plans, this approval does not mean
that such handicapped access is not required.
When requesting a building permit, the plans submitted to the Building Department for permit
shall be consistent with the plans approved by the Board, modified in accordance with the
conditions set forth in this Order.
If the Full Building Permit for the project is not issued within eighteen (18) months of the meeting
date at which the original.Design Review Approval was granted, the Design Review Approval i
will expire and become null and void, unless the applicant makes application to the Board for an i
extension of time, in accordance with the requirements and procedures of Chapter 118 of the
City Code; the granting of any such extension of time shall be at the discretion of the Board. At
the hearing on any such application, the Board may deny or approve the request and modify the
Page 6 of 6
Meeting Date: March 5, 2013
DRB File No. 22936
above conditions or impose additional conditions. If the Full Building Permit should expire for
any reason (including but not limited to construction not commencing and continuing, with
required inspections, in accordance with the applicable Building Code), the Design Review
Approval will expire and become null and void.
In accordance with Section 118-264 of the City Code,
the violation of any conditions and
safeguards that are a part of this Order shall be deemed a violation of the land development
regulations of the City Code.
Dated this day of YYl 20
D LSIGN EVIEW BOARD T OF M AMI B H, FLO DA
BY:
TROMAS R. MOONEY, AICP
DESIGN AND PRESERVATION MANAGER
FOR THE CHAIR
STATE OF FLORIDA )
)SS
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me this day of_L4_
/A ,� �_20�by Thomas R. Mooney, Design and Preservation Manager,
Planning Department, City of Miami Beach, Florida, a Florida Municipal Corporation, on behalf
of the Corporation. He is personally known to me.
"PY v
TERESA MARIA MY COMMISS10N k DD 928148 NOTARY PUBLIC
ExfX$:Deeem4er2,2013 Miami-Dade County, Florida
�rrrAorc"v°4 Bor&dThmOudgetNotary Services My commission expires:
Approved As To Fo4te
Legal Department:
Filed with the Clerk of esign Re view Board on lo 13 )
F:\PLAMSDRB\DRB13\MarDRB13\22936.Marl 3.FO.docx
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s
1
i
I
i
RESOLUTION NO: 2010-27524
� l
A. RESOLUTION OF THE MAYOR AND CITY COMMISSION OF
THE CITY OF MIAMI BEACH, FLORIDA, RE-APPOINTING MR.
WARREN BITTNER, ESQ. TO SERVE AS SPECIAL MASTER
FOR APPEALS OF DECISIONS OF THE CITY'S HISTORIC
PRESERVATION BOARD UNTIL SEPTEMBER 16; -2013, AND
SETTING THE COMPENSATION AT $100.00 PER HOUR WITH A
MAXIMUM PAYMENT OF $500.00 PER CASE.
WHEREAS, the Mayor and City Commission of the City of Miami Beach
recognize that a process for the review of decisions rendered by the Historic
Preservation Board has been established under City of Miami Beach City Code, Section
118-537 (b)(3); and
WHEREAS, affected parties have the right to seek a review by a Special Master
appointed by the City Commission of projects approved by the Historic Preservation
Board; and
WHEREAS, Mr. Warren Bittner, Esq., is a uniquely qualified individual, based
upon his experience :in the field of historic preservation and as a practicing attorney, to
review decisions rendered by the Historic Preservation Board; and-
WHEREAS, in City of Miami Beach Resolution No. 2007-26642, the Mayor and
City Commission re-appointed Mr. Warren Bittner, Esq. to serve as Special Master for
appeals of decisions of the City's Historic Preservation Board through September 16,
2010; and
WHEREAS, Resolution No. 2004-25710 established the compensation at the
rate of$100.00 per hour with a maximum payment of$500.00 per case.
NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA that Mr. Warren Bittner,
Esq., is hereby re-appointed to.serve as a Special Master for appeals of decisions of the
City's Historic Preservation Board for a period of three (3) years expiring on September
16, 2013, and to set his compensation at the base rate of $100.00 per hour with a
maximum payment of$500..00 per case.
PASSED and ADOPTED this 27-, day of a C4(9.tr , 2010.
ATTEST: .
t _ �Q��, AYOR
_ 111 :�'L i
CITY CLERK
TAAGENDA\2 MSeptember 15\Consentmarren Bittner-RES rev.doc APPROVED AS TO
FORM&LANGUAGE
&FO ECUTION
EXHIBIT B °r"ey
BEFORE THE SPECIAL MASTER
2013 APR -4 PH G: 19 CITY OF MIAMI BEACH, FLORIDA
CASE NO. HPSM-13-001
[DRB FILE NO. 22936] EE-1,r- D
f�
IN RE: 42 STAR ISLAND DRIVE, 41093
MIAMI BEACH, FLORIDA
/ THE St cf_;fAL POASTER
APPELLANTS' VERIFIED MOTION TO DISQUALIFY SPECIAL MASTER
Appellant, Miami Design Preservation League, Inc. ("MDPL"), by and through its
undersigned counsel, and pursuant to Florida Rule of Judicial Administration 2.330 ("Rule
2.330"), hereby moves to disqualify Special Master Warren Bittner from proceeding further in
this action, on the following grounds.
OVERVIEW
Appellant MDPL fears that it will not receive a fair hearing and determination due to bias
or prejudice of the Special Master against its counsel. The Special Master in this case, Warren
Bittner, has a direct, ongoing, pre-existing adversarial interaction with MDPL's undersigned
counsel in another, unrelated matter currently in dispute in two pending litigations, SC
Investment Holdings, LLC v. City of.Miami, et. al. (Circuit Court Case No. 12-04991 CA 08 and
Circuit Court Appellate Division Case No. 12-402-AP). Mr. Bittner is Deputy City Attorney for
the City of Miami in those cases. The undersigned counsel represents SC Investment Holdings,
LLC ("SC Investments"). In the latter case, there is a pending Motion to Refer to Commissioner
to Hold Evidentiary Hearing. One of the issues to be resolved regards possible improper conduct
on the part of other members of Special Master Bittner's law firm. This has resulted in a situation
where the appellant MDPL has a well-founded fear of prejudice or bias against it. Accordingly,
EXHIBIT C
CASE NO. HPSM-13-001
pursuant to applicable rules and prevailing law, the Special Master should immediately
disqualify himself.
FACTS
1. This action is an appeal of City of Miami Beach Design Review Board Order on
File No. 22936, approving the Application for Design Review Approval for the construction of a
new 2-story home, to replace an existing pre-1942 architecturally significant home, to be
demolished, at 42 Star Island Drive, Miami Beach, Florida, which was filed on March 26, 2013.
The MDPL is the appellant. The undersigned counsel has represented the MDPL, intermittently,
since 2007 and handled the hearing of this matter below and related matters.
2. On the 27`h or 281h of March, in a conversation with Ms. Cynthia Neves, Clerk for
the Special Master for the City of Miami Beach, the undersigned counsel was advised that
Warren Bittner had been appointed Special Master and was to preside over the instant appeal.
3. On March 29, 2013, the undersigned counsel received an email from Mr. Bittner,
attached hereto as Exhibit A, requesting an extension on behalf of the City of Miami in case, SC
Investment Holdings LLC v. City of Miami, et. al. (Circuit Court Case No. 12-04991 CA 08).
4. The undersigned counsel represents SC Investments in that case, and other
litigation involving SC Investments, the City of Miami, and others, that is, in Circuit Court
Appellate Division Case No. 12-402-AP.
5. Mr. Bittner is an attorney involved in both actions representing the City of Miami
against SC Investments, and therefore is one of the undersigned's adversaries in both actions.
6. The litigation between SC Investments and the City of Miami is contentious.
Pending in Case. No. 12-402-AP are several motions, one of which is SC Investments' Motion to
Refer to Commissioner to Hold Evidentiary Hearing. That Motion to Refer is related to a Motion
2
CASE NO. HPSM-13-001
to Dismiss for Lack of Jurisdiction and asks the Court for an evidentiary hearing to resolve
factual issues, including questions raising possible improper conduct involving other members of
Mr. Bittner's law firm.
FEAR OF PREJUDICE OR BIAS
7. For the reasons discussed herein, the MDPL fears that it will not receive a fair
hearing and determination in the instant appeal due to specific prejudice and/or bias of the
Special Master as a result of the current ongoing adversarial relationship between its counsel and
Special Master Bittner.
8. The adversarial relationship is between the Special Master and the MDPL's
counsel, not between the Special Master and the party, the MDPL. The MDPL believes that it
will suffer prejudice against its position in the instant case as a result of the Special Master's bias
against Mr. Robbins, its counsel in this matter, arising from the contentious litigation in other
matters that are current and ongoing. MDPL, being fully apprised of the facts, fears it will not
receive a fair hearing.
9. The MDPL's fear is reasonable and well-founded.
ARGUMENT
Florida Rules of Judicial Administration 2.330 governs disqualification of judges, and
provides both the procedure and the grounds for a motion based upon the rule. Further, the rule
allows the motion for disqualification to be based upon the rule, statute or by the Code of
Judicial Conduct. Fla. R. Jud. Admin. 2.330(b). Florida Statute §38.02 (2012) extends all of the
grounds of disqualification of a judge to special masters. Tri-State Enterprises, Inc. v. Berkowitz,
182 So. 2d 40, 44 (Fla. 2d DCA 1966); see also Jenkins v. Sterlacci, 849 F.2d 627, 631 n.l (D.C.
Cir. 1988) ("...insofar as special masters perform duties functionally equivalent to those
3
CASE NO. HPSM-13-001
performed by a judge, they must be held to the same standards as judges for purposes of
disqualification.").
The grounds for disqualification are clearly set forth in Florida Rules of Judicial
Administration 2.330(d). The motion to disqualify "shall show" the party fears that he or she will
not receive a fair trial or hearing because of specifically described prejudice or bias of the judge,
or as in this case, the special master. Fla. R. Jud. Admin. 2.330(d)(1). The MDPL clearly states
its fears and the specific grounds for these fears herein this sworn motion.
The Canons contained within the Code of Judicial Conduct provide independent grounds
for disqualification. Both Canons 2 and 3 apply to the situation at hand. Canon 2, addressing a
judge's avoidance of the appearance of impropriety, demands the special master "respect and
comply with the law and shall act at all times in a manner that promotes public confidence in the
integrity and impartiality of the judiciary." Fla. Code of Jud. Conduct, Canon 2.A. The United
States Supreme Court has stated that "[t]he goal is to avoid even the appearance of partiality."
Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 860 (1988). The commentary to
Canon 2.A lays out the test for an appearance of impropriety:
The test for appearance of impropriety is whether the conduct would create in
reasonable minds, with knowledge of all the relevant circumstances that a
reasonable inquiry would disclose, a perception that the judge's ability to carry
out judicial responsibilities with integrity, impartiality, and competence is
impaired.
Commentary to Canon 2.A, Fla. Code of Jud. Conduct. Special Master Bittner's direct contact
with Mr. Robbins, counsel for the MDPL in the instant appeal, because of contentious ongoing
litigation happening concurrently, would create in reasonable minds a perception of impaired
competence. The potential for bias exists. The appearance of impartiality is as harmful as actual
impartiality. Livingston v. State, 441 So. 2d 1083; 1086 (Fla. 1983).
4
CASE NO. HPSM-13-001
Furthermore, Canon 3.E(1) mandates a judge or special master to disqualify himself in a
proceeding where his impartiality plight reasonably be questioned. Canon 3.E(1), Fla. Code of
Jud. Conduct (emphasis added). One of the enumerated instances that require disqualification is
that where the special master or judge has a personal bias or prejudice concerning a party or a
party's lawyer. Canon 3.E(1)(a) (emphasis added); see also Town Centre of Islamorada, Inc. v.
Overby, 592 So. 2d 774, 774 (Fla. 3`d DCA 1992) ("Bias or prejudice against a litigant's attorney
is grounds for disqualification where the prejudice is of such degree that it adversely affects the
client.") The interaction between Mr. Robbins and Special Master Bittner is ongoing, and
adversarial. (The attorney/client relationship between Mr. Robbins and the MDPL pre-dates the
litigation between SC Investments and the City of Miami.) These facts show that the resulting
prejudice to the MDPL is of a significant degree such that it will have an adverse affect on the
instant appeal.
Review of a Verified Motion for Disqualification is narrow. According to Rule 2.330(f),
the special master/judge against whom an initial motion is filed "shall determine only the legal
sufficiency of the motion and shall not pass on the truth of the facts alleged. The motion "is
legally sufficient when the alleged facts would create in a reasonably prudent person a well-
founded fear of not receiving a fair and impartial trial."' Valdes-Fauli v. Valdes-Fauli, 900 So.
2d 214, 216 (Fla. 3`d DCA 2005). The alleged facts are assumed to be true and are viewed from
the movant's perspective. Krawczuk v. State, 92 So. 3d 195, 200-01 (2012);Jarp v. Jarp, 919 So.
2d 614, 615 (Fla. 3`d DCA 2006).
1 The other grounds for legal sufficiency as per Rule 2.330 include that the motion be verified
and that counsel include an accompanying certificate of good faith. The instant motion is
compliant with these mandates.
5
CASE NO. HPSM-13-001
This Court's only determination is whether these assumed-to-be true facts would prompt
a reasonably prudent person to fear that he could not get a fair and impartial proceeding. Hayslip
v. Douglas, 400 So. 2d 553, 556 (Fla. 4t" DCA 1981). "It is a question of what feeling resides in
the [movant's] mind, and the basis for such feeling...[The special master] cannot pass on the
truth of the allegations of fact." Id. (quoting State ex rel. Brown v. Dewell, 179 So. 2d 695, 697-
98 (Fla. 1938).
"If the motion is legally sufficient, the judge [special master] shall immediately enter an
order granting disqualification and proceed no further in the action." Fla. Rule of Jud. Admin
2.330(f).
Accordingly, as this Verified Motion sets forth, the unusual circumstances of the instant
case have produced in the MDPL a reasonable and justifiable fear that it will not receive fair
hearing and determination in an appeal over which Special Master Bittner would preside. "A fair
trial in a fair tribunal is a basic requirement of due process."Jenkins, 849 F.2d at 631.
WHEREFORE, the Miami Design Preservation League, Inc. respectfully moves for an
immediate order disqualifying Special Master Warren Bittner from presiding over this matter.
Respectfu ly submitted,
KENT HARRISON ROBBINS
Attorney for Appellant MDPL
1224 Washington Avenue
Miami Beach, Florida 33139
Telephone: (305) 532-0500
Facsimile: (305) 531-0150
Email: khr @khrlawoffices.com
Florida Bar No.: 275484
6
CASE NO. HPSM-13-001
GOOD FAITH CERTIFICATION PURSUANT TO FLA. R JUD. ADMIN 2.330
The undersigned counsel herby certifies, pursuant to Rule 2.300(c), that the Verified
Motion is made in good faith.
KENT HA SON ROBBINS
Attorney for Appellant MDPL
VERIFICATION
Under penalties of perjury, I declare that I have read the foregoing Verified Motion to
Disqualify Special Master, and that the facts stated therein are true.
Miami Design Preservation League, Inc.
By:
Charles Urstadt as Chairm
STATE OF FLORIDA )
ss.:
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me this day of April
2013, by Charles Urstadt as Chairman of the Miami Design Preservation League. He is (_
personally known to me or who has provided F) L X11 .23`I qq-5-as
identification.
My commission expires: �'�;Z` (p
� ����"�E'R°1rG/A� Not y ublic, State of Florida
•: #EE191409 �Q
Co
ti o
C S1
Kent H. Robbins
From: Bittner, Warren <WRBittner @miamigov.com>
Sent: Thursday, March 28, 2013 4:05 PM
To: Kent H. Robbins
Cc: Dennis Richard
Subject: SC Investiments H - Circuit Court - 12-04491 CA 08
Kent, I tried to call you a moment ago, but you were out.
May the Defendants (all of us) have an extension to respond to your First Amended Complaint through and including
April 26`h, 2013?
Currently our responses are due on April 1" (for City) and April 2nd (other Defendants).
Please let me know. Thank you very much.
Warren Bittner, Deputy City Attorney
4 City of Miami Office of the City Attorney
Telephone: 305-416-1813
Facsimile: 305-416-1801
wrbittnerCEDmiamigov.com
Assistant: Bettie J.Vogler(305)416-1830
Disclaimer: This e-mail is intended only for the individual(s)or entity(s)named within the message.This e-mail might contain legally privileged and
confidential information. If you properly received this e-mail as a client or retained expert, please hold it in confidence to protect the attorney
client or work product privileges. Should the intended recipient forward or disclose this message to another person or party, that action could
constitute a waiver of the attorney-client privilege. If the reader of this message is not the intended recipient,or the agent responsible to deliver it
to the intended recipient, you are hereby notified that any review, dissemination, distribution or copying of this communication is prohibited by
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communication was received in error we apologize for the intrusion. Please notify us by reply e-mail and delete the original message. Nothing in
this e-mail message shall,in and of itself,create an attorney-client relationship with the sender.
Please consider the environment before printing this e-mail. r�
EWIBIT.
1
CASE NO. HPSM-13-001
CERTIFICATE OF SERVICE
THE UNDERSIGNED HEREBY CERTIFIES that a true and correct copy of the
foregoing was forwarded by electronic mail on the day of April, 2013, to counsel as follows:
Gary Held, First Assistant City Attorney
City of Miami Beach
1700 Convention Center Dr.
Miami Beach, Florida 33139
Telephone: (305) 673-7000 ext. 6532
Facsimile: (305) 673-7002
Email: GaryHeld@a miamibeachfl.p-ov
Michael Larkin, Esq.
Bercow, Radell & Fernandez, P.A.
200 South Biscayne Blvd., Suite 850
Miami, Florida 33131
Telephone: (305) 377-6231
Facsimile: (305) 377-6222
Email: MLarkin@brzoninalaw.com
KENT HARRISON ROBBINS
8
BEFORE THE:SPECLII.ULSTER
CITY"OF MIAI`'II'BErACH,FLORIDA
CASE NO.: HPSM-13-001.
{DRB FILE NO. 229361
IN RE: 42 STAR ISLAND DRIVE,
MIAMI BEACH,FLORIDA,
I
ORDER ON APPELLANT'S
VERIFIED MOTION TO DISQUALITY
The Appellant, MIAIvff DESIGN PRESERVATION LEAGUE, INC. ("MDPL")
has filed a VERIFIED MOTION TO DISQUALIFY SPECIAL MASTER, dated April 4,
2013, seeking to disqualify the undersigned from presiding over this matter. After
carefully considering the contents of the Motion, the Special Master rules as follow:
I.
THE STANDARD FOR DISQU 4LiFYING THE SPECIAL Nt4STER
MDPL's Motion to Disqualify is made under Rule 2.330 of the Florida Rules of
Judicial Administration. [Motion, pp. 1 & 3]. MDPL cites to Section (b)of the Rule for
the proposition that it allows for a motion for disqualification to be based on any rule,
statute or the Code of Judicial Conduct Rule 2.330(b)provides:
(b) Parties_ Any party, including the state; may move to disqualify the
trial judge assigned to the case on Grounds provided by rule by statute, or
by the Code of Judicial Conduct. [underlining added].
Based on the authority of Rule 2.330, and Tri-State Enterprises,. Tic. v
Berkowitz, 182 So. 2d 40 (Fla. 2"a DCA 1966), IVIDPL contends that section 38.02, F.S.,
"extends all of the grounds of disqualification of a judge to special masters."
First, subsection(a)of Rule 2.330 provides:
(a) Application. This rule applies only to county and circuit judges in
all matters in all divisions of,court. [bolding-added]
EXHIBIT D
PAGE 2
ORDER ON:MOTION TO DISQUALIFY
.CASE NO.: HPSM-13-001
Therefore, by its own terms, Rule 2.330 "applies only to county and circuit
judges". The Special Master is.appointed by the City Commission.of the City of Miami
Beach —'he is neither a county judge, nor a.circuit judge. ."thus,Rule 2.330 alone is not
the vehicle through which the grounds of disqualification applicable to county and circuit
court judges can be extended to the Special Master.
Second, Tri-State Enterprises, Inc ti. Berkowitz, 182. So. 2d 40 (Fla. 2"d DCA
1966), decided in 1966, prior to the adoption of the current Florida Rules of Civil
Procedure on January .1, 1967.1 held, in relation to a special master appointed by the trial
court, that:
The other point raised is the legality of the appointment of an associate of
appellee's counsel as special master to perform. the duties attendant to
processing the redemption of the lots alter sale. We. deem_this rx�int well
taken insofar as the appellants arc concemed under Rule 3 14 d) C.R.E.P.,
31 F S A it is provided that "la l ll of the grounds. of disqualification'of
a Circuit Judge shall a `1 - to eneral ands sl masters." Under f.S. .
38.02, F.S.A._, a circuit judge is obligated to declare himself disqualified,..
upon suggestion of a party or person interested in litigation pending before
him, if the judge,is interested in the result" of the cause before him. The
associate in the,-practice of law of counsel for one of the parties is certainly
"interested.in the result" of this mortgage foreclosure suit. [underlining
and bolding added].
The language in former Rule 3.14(d), extending "all the grounds of
disqualification" to general and special masters was carried forward into Rule 1.490(d),
Fla. R. Civ. Proc. In 2004, Rule 1.490, Fla. R. Civ. Proc., was amended,to change
' See In re Florida Rules of Civil Procedure 1967,Revision, 187 So 2d 598(Fla_ 1966).
PAGE -3
ORDER ON TO DISQUALIFY
CASE.NO.: BPSM-13-001
references of"masters to "magistrates",` and.Rule 1.490(4), now currently provides, in
pertinent part:
(d) General Powers and Duties. Every magistrate shall perform
all of the duties that pertain to the office according to the practice in
chancery and under the direction of. the court.,. .... All Bounds of
disqualification of a 'udge shall apply to magistrates. [underlining added].
Notwithstanding the 2004 change in nomenclature from master" to magistrate''
in Rule 1.490(4),Rule 1.010, entitled, `Scope and Title of Rules", sheds light on the
threshold applicability of the Rules of Civil Procedure to the undersigned in the first
instance. Rule 1.010,Fla. R. Civ.Proc.,provides:
RULE 1.010. SCOPE AND TITLE OF RULES
These rules apply to all actions of a civil nature and all special
stat Ag roce�in the circuit courts and county courts except
those to which the Florida Probate. Rules, the Florida Family Law Rules of
Procedure, or the Small Claims Rules apply. The form, content,
procedure, and time of pleading in all special statutory .proceedings shall
be as prescribed by the statutes governing the proceedings unless these
rules specifically provide to the contrary. These rules shall be construed
to secure the just, speedy, and inexpensive determination of every action.
These rules shall be knowvn as the Florida Rules of Civil Procedure and
abbreviated as Fla.R.Civ.P. [underlining and bolding added].
Thus,the holding of the 2nd DCA in Tri-State Enterprises,Inc.,has no bearing on
this matter simply because the undersigned is not bound by the Fla. R. Civ. Proe., Rule
2.330,Fla.R. Jud. Adm.,or Section 38.02,F.S. (applicable only to judges of this state).
This leaves the questions of what standard applies, and what procedures apply, in
these special master proceedings on appeal from the quasi-judicial decision made by the
2 See Amen4»:ents to the Fla. R. App. P., the Fla. R. of Civ. P., etc., 887 So.2d 1090,
1090-91 (Fla. 2000.
PAGE .4
ORDER ON.MOTION TO DISQUALIFY.
CASE NO.:111PSM-13-001
Board below. The Special Nfaster believes that the Florida Supreme Court has answered .
these questions in In re Estate of Carlton, 378 So.2d 1212:(Fla. 1979).
In Carlton, the petitioners filed a suggestion that Justice Overton disqualify
himself or be disqualified, from the cause on the grounds of his close friendship with a
lawyer whose law firm had represented the respondent, the administrator of the estate in,
issue, but who were not attorneys of record in the cause at.issue. In leaving the issue up
to the personal discretion of Justice Overton,the Florida Supreme Court ruled:
After due consideration, we now recede from Ervin and Bull and
hold that each justice must determine for himself,'both >the ,legal
suffieiencv of a request seeking his disgualificationand the.proDrietY
of withdrawin in an articular:circumsfances. This.procedure is in
accord with the great weigbt of authority, and-it reinforces the modern
view of disqualification as a matter which is "personal and discretionary
With individual members of the judiciary... [Id. at 1216, citing
Department of Revenue v. Leadership Housing,Inc., 322 So.2d 7,9 (Fla.
1975)][bolding and underlining added].
1T.
THE;viOTION TO DIS U_A,L11?Y IS TECHNICALLY YNSUFFICIENI'
As indicated above, MDPL motion to disqualify was made under Rule 2.330,Fla.
R_ Jud. Adm., and the Special Master has concluded that this.Rule does not apply in the
first instance. However, even assuming that it did apply, MDPL's motion would,have .
been technically and legally insufficient. The Florida Supreme Court's decision in
Barnhill v. State, 8')4 So.2d 836 (Fla. 2002), is on point.and controlling.
In Barnhill, the Appellant (Barnhill) argued that the trial court erred in,denying
his motion to disqualify. In affirming that the motion was technically insufficient and
properly denied,the Florida Supreme Court held as follows:
PAGE 5
ORDER ON MOTION TO DISQUALIFY
CASE NO.: HPSM-13-001
In the motion to disquali�y, Barnhill asserts that he has a well-
grounded fear that the judge will not be fair and impartial, and that the
judge's statements indicate bias against him because the judge denied his
motion to suppress despite the fact that the State offered no evidence to
contradict Barnhill's testimony that he lived with his girlfriend in New
York
The motion to disqualifi� is legally insufficient because the
supporting affidavit made by the defendant does not state the specific facts
which lead him to believe he will not receive a fair trial. The oath that
arrears in the record merely refers to "the matters, which are
contained in this motion." Barnhill did not file an affidavit stat_ina the
facts and the reasons for the belief that bias or prejudice exists.
rther. the certificate oC counsel of record is attached to the motion
itself and states only that the statements of the defendant contained
"herein" are made in good faith. The motion was technically
insufficient,and the trial judge's ruling was correct.
Without discussing the technical requirements, Barnhill argues that
the motion was legally sufficient because the grounds upon which the
motion was based were legally sufficient. Barnhill cites several cases
where the judge's commentary on the truthfulness of a witness affected
the outcome of the trial and warranted disqualification. Whether that is
true or not the technical requirements of the motion were not met
and the trial court's decision to deny the motion as legally insufficient
was proper. Id at 843 [underlining and bolding added].
The motion to disqualify at bar is indistinguishable from the motion deemed
technically and legally defective by the Florida Supreme Court in Barnhill, in particular.
(a) the oath (verification by MDPL) on page 7 of the motion merely refers to the facts
stated in the motion, and does not independently state the facts and the reasons for the
belief that bias or prejudice exist; and(b) the Certification of counsel also attached to the
motion itself on page 7, states only that"the Verified Motion is made in good faith".
PAGE. 6
ORDER ON.MOTION TO DISQUALIFY
CASE NO.c.HPSM-13-001
Consequently, the Special Master is bound.by the controlling precedent of the
Florida Supreme Court in Barnhill to find this Motion legally_insufficient, even.ifRule
2.330 applied, because it-is.technidally insufficient.
tT[.
THE MOTION TO DIS0t1AI 1 FY IS LEGALLY INSUFFICIENT
The Special Master also believes that the Motion to Disqualify is also legally
insufficient — beyond its technically insufficiency (addressed above). The Florida
Supreme Court has repeatedly set forth the test to determine4egal sufficiency of a motion
to disqualify:
In order to decide whether the motion is legally sufficient, `°a determination must
be made-as to whether the facts alleged would place a reasonably prudent person.in fear
of not receiving a fair and impartial trial-" MacKenzie a Super.Kids.Bargain Store,
Inc., 565 So?d 1332, 1334-5 (Fla 1990), citing Livingston v. State, 441 So.2d 1083,
1086 (Fla. 1983). The legal sufficiency of the motion is purely a question of law. Id. at
1335.
In MacKen;.ie; the issue before the Court was whether an allegation in.a motion
that a litigant or counsel for a litigant has made a legal campaign contribution to the
political campaign of the trial judge's spouse, or the trial judge himself, without more, is
a legally sufficient.ground for disqualification. After conceding that"it cannot be denied
that some persons may.perceive that the Judge will be biased in favor of the contributing
litigant or attorney based solely on the fact that a contnbution was made," the Florida
Supreme Court held that"a reasonably prudent person", would not have such a fear, and
PAGE 7
ORDER ON MOTION,TO.DISQUALIFY
CASE NO.:'fIPSM-13-001
that "[a] judge is not required to disqual i t:y himself or herself on motion based solely
upon such alleged facts.".Id
Other precedent also assists in shedding light on what constitutes a .legally
sufficient ground for disqualification of a judge. For example,;in Schoenwetter v. State,
931 So.2d 857 (Fla. 2006), the defendant in a criminal m
..case, Schoenwetter, oved to
disqualify the trial judge based only on the fact that .the trial judge was a former .
prosecutor whose office had .prosecuted another -me involving Positron Emission
Tomography (PET) scans,and.that the ol'rice opposed the use of PET scan evidence. The
trial court denied the motion as legally insufficient. The Florida Supreme Court
affirming held that, "[such generalizations fall short of the ,,specifically described
prejudice or bias of the judge required. Id at 872.
In another case, S-H Corporation v. Padovano, 708 So.2d 244 (Fla. 1998), the
Florida Supreme Court had to decide whether to issue a writ of prohibition to prevent all
judges of the First District Court of Appeal from presiding over an appeal pending in that
court based on a previous panel of district court judges in that Court, in a prior related
appeal, filing a Florida Bar Complaint against the movant-.(Arslanian), and the movant
filing a JQC Complaint against the judges in the panel, The Florida Supreme Court held .
that, irrespective of Canon 3E(l), %vhich absolutely ,mandates that "[a] judge shall
disqualify himself or herself in a proceeding in which-the judge's impartiality might be
questioned," "we hold today that a Florida judge's mere reporting of perceived attorney
unprofessional ism to The Florida Bar, in and of itself, is legally insufficient to support
PAGE 8
ORDER ON MOTION TO DISQUALIFY
CASE NO.: UPSM-13=001,
judicial disqualification. The same applies in the similar context of an attorney reporting
perceived judicial unprofessional ism to the JQC." Id. at 248.
The Florida Supreme Court went further to explain why a showing that Cannon
3E(l)should apply had not been made in that case: ,
Of course,.regardless of% hether such reports to The Florida Bar or
the JQC have been filed,disqualification remains available where it can be
shown that"the judge has a.p&rsonal.bias or prejudice concerning a.party
or the party's lawyer[.)" Fla. Code Jud: Conduct. Cannon
3E(1)(a)(emphasis added). No such showing has been made here.
Arslanian's arutnent :that the_-_district court judges may have been
"embarrassed, humiliated and c yeti outra ed`' by the 5ubiect;course of
events, and mi t therefore be_.-personally biased against Arslanian and
retaliate against him and-his clients, is speculative;attenuated, and too
fanciful to warrant relief. See Fischer v. Knock, 49,7.So2d'240, 242 (Tla.
19860olding that '[al verified motion for.disqualification must contain
an actual factual foundation for the alleged.:fear of prejudice,".and finding
that the petitioner's subjective fears, as-alleged, were not reasonably
sufficient to justify a we]l-founded.fear of prejudice). Id'[underlining and
bolding added][italics in original].
The rationale of S-H Corporation is equally applicable to the situation here—it is
speculative,attenuated and too fanciful to warrant relief.
Furthermore, the Third DCA has explained that, "bias or prejudice against a
litigant's attorney is grounds for disqualification where the prejudice is of such a degree
that it adversely affects the client. Town Centre of Islamorada,Inc., 592 So.2d 774,775
(Fla. 3`a DCA 1992), citing Ginsberg v. Holt, 86 So.2d 650 (Fla. 1956); State & reL
Davis v Parks, 194 So. 613 (1930). Thus, the Third DCA_ had noted that, "a writ of
prohibition granting disqualification has been issued in Florida under the following
circumstances: where the judge `directs base vernacular towards an attorney. ... in open.
DCA 1991); the judge says he
court.' Olszewska v Ferraro, 590 So.2d 1 l (Fla. t ill
a
PAGE 9
ORDER ON.MOTION TO DISQUALIFY
CASE NO.::RPSM-13-001
`deal with' attorney for having`gone over' his head..Lamendola v, Grossman,439 So.2d
960 (Fla. 3d DCA 1983); the judge states that client's attorriey 'should.not:be-in this
case.'payslip v. Douglas,400.So_2d 553 (Fla. 41'DCA 1981); the judge delivers a tirade
about the lawyer's apposition to the judge's appointment to other judicial ,positions.
XicDermcott ti: Grossman, 429 So.2d 393 (Fla_ 3'� DCA 1983); or where attorneys for
petitioners had testified against the judge at impeachment proceedings brought against
the judge. Brewton v. Kelly, 166 So.2d 834 (Fla. 2"d DCA 1964)."
None of what MDPL has alleged in its motion even comes close to the legal,level
demonstrated by these examples.
•Accordingly, by virtue of the numerous authorities cited above, the Special
Master concludes that MDPL's Motion to Disqualify -is legally _insufficient, and is
therefore DENIED.
TV.
VOLU\TARY RECUSAL
Even though a suggestion for disqualification is legally insufficient, a judge may
i would in.the best interests for the
voluntarily be
still vo } recuse himself if he believes ou d
administration of justice. In re Estate of Carlton, 378 So.2d 1212 (Fla. 1979)(Overton,
J. on denial of request for recusal).
The Special Master is not unmindful of the legal rna c m that "[e]very litigant is
entitled to nothing less than the cold neutrality of an impartial judge." This is an unusual
situation, which has.never occurred in the many years the undersigned has acted as
Special Master hearing these appeals. The Special Master has been unable to locate any
PAGE 10
ORDER ON MOTION TO DISQUALIFY
CASE NO.:HPSNI-13-001
authority directly addressing this situation_ The case law uniformly addresses the
disqualification of judges — which is not surprising - and judges do not usually
simultaneously conduct the practice of law, as the Special Master does. 'Thus, Judge's
are not faced with the situation of having an attorney.,appearing before him or her;.,who
also happens to be an opposing counsel on a case in which.they are actively representing
a party. There being no case law on point, the Special Master is concerned that he has
active, pending lawsuits on which ML)PL's counsel is also simultaneously opposing
counsel. If the Special Master were not to recuse himself, Mr. Robbins may be
constrained, consciously or unconsciously, to act differently in the representation of his
client in those lawsuits. The Special ivfaster is also concerned about the potential for
delay in the adjudication of this appeal occasioned by declining disqualification, which
may be prejudicial to the parties.
Consequently, with these considerations in mind, at least so long as the Special
Master, in his role as, Deputy City Attorney, is assigned. by the City of Miami City.
Attorney to handle open and pending cases in which NU. Robbins is opposing counsel,
the Special Master believes it would be prudent and consistent.with Cannon 2 & 3 of the
Fla Code of Jud. Conduct, to voluntarily recuse himself from appeals in which Mr.
Robbins is representing a party, if that party raises an appropriate and.timely objection,
as has occurred in this case.
111
ll!
PAGE 11
ORDER ON MOTION TO DISQIUALTFY
CASE NO.: HYSM-13-001
WHEREFORE; the Special Master voluntarily recuses himself from this
particular appeal only,for the reasons cited above.
DATED this�day of April, 2013.
W EN Bn7NER
S CLAL MASTER
Copies provided'to: !
Kent Harrison Robbins,Esq.
Michael Larkin;Esq.
Gary Held, First Asst. City Atty.
STEARNS WEAVER MILLER
WEISSLER ALHADEFF & SITTERSON, P.A.
o
Murray A. Greenberg
Of Counsel
Miami
305-789-3564
mgreenberg(-stearnsweaver.com
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Mr. Greenberg is Of Counsel in the Land Use, Environment and Government
Affairs Department. Prior to joining the Firm, Mr. Greenberg served as County
Attorney, First Assistant County Attorney, and Assistant County Attorney for
Practice areas Miami- Dade County. He is certified as a mediator and arbitrator and currently
serves as Special Counsel to the Miami- Dade County School Board and the
Government Affairs City of Coral Gables, as well as Special Counsel to the Chief Judge of the
Municipal Law and Land Use Eleventh Judicial Circuit of Florida.
During his tenure at the Miami- Dade County Attorney's Office, Mr. Greenberg
Education represented Miami- Dade County in a number of high- profile cases including
the 2000 presidential election cases (Bush v. Gore); the litigation surrounding
J.D.,University of the County's"anti-bilingual"ordinance;and challenges under the federal Voting
Pennsylvania School of Law, Rights Act relating to the districting of the County Commission. He also handled
1968 challenges under the County charter relating to the method of funding County
B.A.,University of services and drafted many provisions of the current County charter.
Pennsylvania,1965
Mr.Greenberg serves as an adjunct Professor of Law at the University of Miami
School of Law, Florida International University, and St. Thomas University
Admissions School of Law, teaching courses in state and local government, state and local
Florida,1968 taxation,and election law.
U.S.Supreme Court,1972 Representative Experience
11th Circuit Court of Appeals, ,Miami-Dade County Attorney(2005—2007)
1981
5th Circuit Court of Appeals, ,Special Counsel to the City of Coral Gables(2011 —Present)
1969
Southern District of Florida,
1969 .Special Counsel to the Chief Judge of the Eleventh Judicial Circuit
of Florida(2010—Present)
Ratings&Certifications °Special Counsel to the City of Deerfield Beach(2010-2011)
AV Rated by Martindale- •Special Counsel to the Miami-Dade County School Board
Hubble (2008—2010)
Certified Arbitrator
Certified Mediator • Miami-Dade County Attorney's Office
-First Assistant County Attorney(1980—2005)
Presentations -Assistant County Attorney(1975—1979 and 1969—1972)
Speaker,"State and Federal . Florida International University College of Law
Law Election Issues,"Palm -Adjunct Professor of Law(2004—Present)
Beach County Federal Bar
Association and the FIU
College of Law(2012) •St.Thomas University School of Law
Lecturer,"Ethics and Conflicts -Adjunct Professor of Law(2005—Present)
of Interest,"Good Government
Initiative events(2011&2012) . University of Miami School of Law
Speaker,22ndAnnual Labor -Adjunct Professor of Law(1974—Present)
and Employment Law
Seminar,"The New Dynamics Professional and Community Involvement
in Public Sector
Bargaining"(May 2012) . Friends of the Library,Board of Directors
Speaker,"Hitting the Reset
Button:How New Fiscal o Good Government Initiative,Vice-Chair
Realities Demand a Different
Approach for Public Sector
Museum Tower,150 West Flagler Street,Suite 2200,Miami,FL 33130 1 Phone:(305)789-3200,Fax:(305)789-3395
Bargaining",(September
2011)
Speaker,21stAnnual Labor
and Employment Law
Seminar,"Cheesehead
Fallout:What is the Future of
Public Sector Bargaining and
Pensions in Florida?"(May
2011)
Speaker,20th Annual Labor
and Employment Law
Seminar,'City Life:Best
Employment Practices for
Public Sector
Employers"(May 2010)
Panelist,"Bush v.Gore--A
Decade Later,"St.Thomas
University School of Law
(November 2010)
Museum Tower, 150 West Flagler Street,Suite 2200,Miami,FL 33130 Phone:(305)789-3200,Fax:(305)789-3395