R10A-City Attorneys Status ReportMIAMIBEACH
City of Miomi Beoch, I200 Convention Center Drive, Miomi Beoch, Florido 33.l39, www.miomibeochfl.gov
COMMISSION MEMORANDUM
To: Mayor Philip Levine and Members of the City Commission
FROM: RaulAguila, City Attorn"yn ,A t
DATE: Aprir 15,2015 -tl*-t
Cr, l---
SUBJECT: City Attorney's Status Report
LAWSUITS FILED BY OR AGAINST THE CITY OF MIAMT BEACH SINCE THE LAST
REPORT
1. U.S. BANK NATIONAL ASSOCIATION V. JOSE L. IUIARTINEZ Case No. 15-
ounty)
This is an action to foreclose a mortgage on real property located at 1228 West
Avenue, Unit 1103, Miami Beach, Florida. The Summons and Verified Complaint to
Foreclose Mortgage were served on the City on March 2,2015.
The City's Answer and Affirmative Defense, asserting priority for any special
assessments, including, but not limited to, utility water and sewer services, demolition
or board-up liens, and resort taxes was filed on March 4,2015.
Case No. 15-004877 CA01
(Circuit Court - 11* Judicial Circuit in and for Miami-Dade County, Florida)
The City was served with this complaint on March 4,2015, alleging that on August 15,
2013, the plaintiff, Juan Dominguez, was picked up from his vacation condominium at
6969 Collins Avenue, Miami Beach, Florida, and was taken to the Miami Beach Police
station wherein he was interrogated for and ultimately arrested for making three
phone calls on August 10,2013 to the non-emergency line threatening to harm CMB
police officers and specifically threatened to kill Officer Jorge Mercado. He was
charged with assault on a police officer and transported to TGK Correction Center
where he remained until he was released on bond on August 17,2019.
The complaint alleges that had the investigating officers taken the time to simply listen
and review the department's own telephone recordings of the incident prior to
detaining the plaintiff, it would have been plainly evident that the plaintffi had no
involvement whatsoever in making the alleged threatening telephone calls to the
department, but rather made three calls on the same date to report certain individuals
he noticed breaking into a boarded up building next to his condominium and gathering
in the building drinking and carrying on. On November 18,2013, the charges against
the plaintiff were dismissed and the case was nolle prossed because the City of
Miami Beach PD's own records documented the incident undisputedly proved that the
plaintiff did not make any threatening telephone calls to the department; nor did the
plaintiff make any threatening telephone calls specifically directed to Officer Jorge
Mercado. We shallfile our answer and propound discovery.
Agenda ttem R l0Ao^t"-Fli:l{750
City Attorney's Report
April15,2015
Page 2
3. ADRIENNE SAMANTHA EVANS V. CITY OF MIAIUII BEACH MISHART TORRES
Civil Action No. 15 -CV-20864 in the United States District Court for the Southern
District of Florida
Plaintiff sued the City alleging false arrest and excessive force. The City will
vigorously defend the suit. Because Plaintiff suffered a broken arm and required
surgery as a result of her claimed injury, a judgment in this case could exceed
$100,000.
ET. AL.LT.4.
KOTSIOPOULOS. ET AL.. Case No. 15-2461 CA 24 (Circuit Court - 11
Circuit in and for Miami-Dade County, Florida)
Judicial
5,
6.
This is an action to foreclose a mortgage on real property located 1458 Ocean Drive,
Unit 302, Miami Beach, Florida. The Summons and Verified Complaint were served
on the City on March 18,2015.
The City's Answer and Affirmative Defense, asserting priority for any special
assessments, including, but not limited to, utility water and sewer services, demolition
or board-up liens, and resort taxes was filed on March 24,2015.
BARRY GOLLOP V. ALEXANDER -TORRES. INDIVIDUALLY. iIIORTON EATON.
INDIVIDUALLY. AND THE CITY OF MIAMI BEAGH, Case No. 15CV20914-
Ungaro/Otazo-Reyes (United States District Court for the Southern District of Florida)
Plaintiff sued the City alleging false anest and excessive force. The City will
vigorously defend the suit. A judgment in this case would likely be less than $100,000.
BANK OF AMERICA. N.A. V. DANIEL FERNANDEZ A'K/A DANIEL FERNANDES.
Miami-Dade County, Florida)
This is an action to foreclose a mortgage on real property located 11700 SW 18th
Street, Unit 411-2, Miami, Florida. The Summons and Amended Complaint were
served on the City on March 24,2015.
The City's Answer and Affirmative Defense, asserting priority for any special
assessments, including, but not limited to, utility water and sewer services, demolition
or board-up liens, and resort taxes was filed on March 31,2015.
This is an action to foreclose a mortgage on real property located 5445 Collins
Avenue, Unit 502, Miami Beach, Florida. The Summons and Verified Complaint were
served on the City on March 24,2015.
The City's Answer and Affirmative Defense, asserting priority for any special
assessments, including, but not limited to, utility water and sewer services, demolition
or board-up liens, and resort taxes was filed on March 30, 2015.
ASSOCIATION. !NC.. ETC.. ET AL.. Case No. 15-4499 CA 05 (Circuit Court - 11
Judicial Circuit in and for Miami-Dade County, Florida)
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City Attorney's Repoft
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Page 3
8. CHRISTOPHER PARKER. ET AL v. ATS GONSOLIDATED. lNC.. ET AL Case No.
1:14CY-24010 (United States District Court for the Southern District of Florida)
The first Federal Lawsuit against the City of Miami Beach was dismissed by the
Court. This is the secondary Federal lawsuit that was pending in the South District of
Florida, and was amended to include the City of Miami Beach as a Co-Defendant.
The City was served with a Federal Summons and Class Action Complaint (the
"Class Action Complaint") on March 25,2015. This Class Action Complaint asserts
that the City of Miami Beach's Red Light Camera Program pursuant to Section
316.0083 of the Florida Statutes, is an unlawful delegation of municipal (Police
Power) authority that is legally prohibited pursuant to Florida law. The Class Action
Complaint further asserts that the City of Miami Beach should be enjoined from the
issuance of any further violations pursuant to Section 316.0083, and that the City's
Red Light Camera Program must be declared an improper and unlawfuldelegation of
its police power, rendering the issuance of any notices of violation(s) or uniform traffic
citation(s) ("UTC') unlawful under Florida Law.
The City has requested that Xerox State and Local Solutions, lnc. (the City's Vendor)
formally known as ACS State & Local Solutions, lnc. ('Xerox") indemnify, hold
harmless, assert defenses on its behalf, and continue defending the City through the
conclusion of the pending Federal Class Action Lawsuit pursuant to the Contractual
Agreement. The Class Action Lawsuit directly challenges the City's Red Light
Camera Enforcement Program ("the Program") pursuant to the Agreement between
Xerox and the City, which expressly authorized the issuance of violations against
owners of those motor vehicles who proceeded into an intersection equipped with a
traffic control signal monitoring system operated by Xerox. ln that regard, the Class
Action Lawsuit seeks to invalidate the City's Program and any violations or UTC's
issued accordingly, and to disgorge those monetary payments received under the
Program.
The City estimates that the amount of losses will be those monetary payments that
have been received under the Photo Red Light Enforcement Program, and the
awarding of attorneys' fees, if any, and costs of litigating the Class Action
Lawsuit. The City Attorney's ffice will be vigorously defending the merits of this
lawsuit, and a Motion to Dismiss will be filed seeking the dismissal of the matter with
Prejudice.
ET AL., Case No. 154141 CA
59 (Circuit Court - 11'n Judicial Circuit in and for Miami-Dade County, Florida)
This is an action to foreclose a mortgage on real property located 2600 NW 28 Street,
Unit 206-2, Miami, Florida. The Summons and Verified Complaint were served on the
City on March 25,2015.
The City's Answer and Affirmative Defense, asserting priority for any special
assessments, including, but not limited to, utility water and sewer seryices, demolition
or board-up liens, and resort taxes was filed on March 31,2015.
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City Attorney's Repoft
April15,2015
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10.
11.
CITY OF irllAMl BEACH. ET AL. ETC. VS PENN 17. LLC. ET AL.. Case No. 15-530
CC 24 (County Court - in and for Miami-Dade County, Florida)
This is an eviction action filed against Penn 17, LLC for the premises located at 1661
Pennsylvania Avenue, Miami Beach, FL. The Complaint contains a count for
possession, damages and foreclosure of the landlord's lien.
ANNA M DE SOUZA v CITY OF MIAMI BEACH. Case No. 2015-005787-CA-01
e County, Florida)
The City was served with this complaint on March 31, 2015, alleging that on March 1,
2014, the plaintiff, Anna De Souza, tripped and fell over an uneven slab of sidewalk
while walking on the south side sidewalk located on 71 Street approaching Byron
Avenue, Miami Beach, FL, causing injuries to the plaintiff. The sidewalk and roadway
of 71 Street is owned by FDOT, but the City of Miami Beach is responsible for
maintenance of the location pursuant to an agreement we signed with FDOT for
maintenance of 71 Street sidewalk area and curbs after we improved the sidewalk
and curbs as a result of the North Beach Street Scape lmprovement Project that the
City embarked on in 1993. We shall file our answer and propound discovery to the
plaintiff.
ISAAG BENAYON. as Parent and Natural Quardian of JEREllllY BENAYON. a
mlnor. and ISAAG BENAYON. individuallv v. CITY OF ltllAMl BEACH Case No.
CountY,
Florida)
The City was served with this complaint on April 3, 2015, alleging that on December
12,2013, the plaintiff, The Plaintiff, Jeremy Benayon, a minor, tripped and fell over an
exposed and open electrical box located directly east of the intersection of Lincoln
Road and Pennsylvania Avenue while watching a break dancing exhibition causing
injury to the plaintiff. The Plaintiff is suing for negligence, attractive nuisance and Loss
of Filial Consortium against Defendant, City of Miami Beach.
We shallfile our answers to the complaint and propound discovery to the plaintiff. The
claim file from Risk Manager, Sonia Bridges, contains an email dated Tuesday,
August 12,2014 from Fernando Pestana wherein he indicated that Street Performers
have a free flowing permit given by Code Compliance on a first come-first serve
basis. We shall inquire from Kenny Varela and Randi Macbride of Code Compliance
to find out what break dancing performer was issued a permit to perform at Lincoln
Road and Pennsylvania Avenue at about 5 p.m. 12-25-2013, on Christmas day to see
if we can tender to an insurance carrier if the performers are obligated to obtain
insurance pursuant to the issuance of the permit.
MIAMI DESIGN PRESERVATION LEAGUE. lNC. v. lUllAMI BEACH COMMUNITY
H TRIST
BEAGH, Case No. 15-6698 CA-04 (Circuit Court - 11'n Judicial Circuit in and for
Miami Dade County, Florida)
The Miami Design Preservation League, lnc. served the City with a motion for
injunctive relief, and immediately thereafter with an amended complaint seeking
injunctive relief, alleging that the City did not have the power to executed the March
12.
13.
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11, 2015 settlement agreement with the Miami Beach Community Church, lnc. and
South Beach Tristar, LLC, under the FLUEDRA proceeding, pursuant to section
70.51, Florida Statutes.
A status conference is scheduled for April 15, 2015 before Judge Bronwyn C. Miller.
The FLUEDRA settlement agreement provides indemnification of the City, and
requires Miami Beach Tristar LLC to pay for our legal expenses. The City has hired
Raoul Cantero, of White and Case, the Former Florida Supreme Court Justice, as
counsel in this matter. The City shall respond to the amended complaint and attend
the status conference.
14. MIAIUII BEACH COMIU.UNITY CHURCH. INC. AND i'IIAMI BEACH TRISTAR LLC V.
RVA
Case No.14473 AP (Florida 11'n Circuit Court Appellate Division).
Miami Beach Community Church, lnc. and Miami Beach Tristar LLC filed an appeal, a
petition for certiorari review, in Circuit Court, Appellate Division, to review the October
31,2014 decision of the Historic Preservation Special Master. Simultaneously, Miami
Beach Community Church, lnc. and Miami Beach Tristar LLC filed their alternative
dispute resolution proceeding under FLUEDRA, pursuant to 70.51, Florida Statutes.
Due to FLUEDRA proceeding the appealwas stayed. City's response is due on April
24, 2015. However, due to the settlement agreement executed in the FLUEDRA
alternative dispute resolution process, the petition for certiorari will be dismissed.
15. BOOS DEVELOPMENT GROUP. lNC.. a Flori4a Corporation. and CVS 10346 FL.
LLC. a Florida limited liabilitv companv v. 1500 9CEAN DRIVE GgNDOMINIUM
ASSOCIATION. lNC.. a Florida Corporation. JONATHAN PLUTZIK. BETSY
ROSS OWNER. LLC. a Florida limited liability companv. Ocean Gourt. LLC. a
Florida limited liabilitv companv: and GITY OF MIAMI BEACH, Case No. 3D15-
315 (Florida Third District Court of Appeal)
ln 2014,1500 Ocean Drive Condominium Association, lnc., and Jonathan Plutzik, as
the Representative/Owner of Betsy Ross Owner, LLC, Ocean Court, LLC, (hereinafter
collectively "Betsy Ross") filed a petition for certiorari over certain variances granted
to the CVS by the City's Board of Adjustment. On January 8, 2015, the Eleventh
Judicial Circuit Appellate Panel in and for Miami-Dade County ruled in favor of the
Betsy Ross. Boos Development Group, lnc. and CVS 10346 FL, LLC, filed an appeal
of that decision, via discretionary review under a second tiered petition for certiorari,
alleging that Betsy Ross lacked standing to challenge the variances. The City's
response brief is due April 30, 2015. The City shall defend standing as to Jonathan
Plutzik, Besty Ross Owner, LLC and Ocean Court, LLC, as these parties have special
injury standing. However, 1500 Ocean Drive Condominium Association, lnc. never
appeared at the hearing, and the City agrees with Boos Development Group, lnc. and
CVS 10346 FL, LLC as to their lack of standing. Oral Argument has not been
scheduled.
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City Attorney's Repoft
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20. KING DAVID TOWERS. lNC., and THIAGO GUERRA v. CITY OF MIAMI BEACH
and 3425 COLLINS. LLG, 15-0083-AP-01 (Florida 11th Circuit Court, Appellate
Division).
On December 5, 2014, the City's Board of Adjustment granted the Respondent, 3425
Collins, LLC's (Faena) requests for 18 varian@s, concluding that the application
satisfied the variance standards in the Code, in order to restore the historic
Contributing building known as the Versailles Hotel (Versailles) and to construct a
companion building. King David Towers, Inc. and Thiago Guerra have filed an
appeal, via a petition for certiorari review, of the decision to grant the variances. The
City's response brief is due May 6, 2015. Oral argument has not been scheduled.
21. BEL AIRE QN THE OCEAN CONDOMINIUii ASSOGIATION. lNC.. a Florida not
fOr prOfit Corporation v. CITY OF MIAMI BEACH AND MIMOSA RESTDENCES
CONDOilIINIUM ASSOCIATION. lNC., Case No. 15-087 AP (Florida 11th Circuit
Court, Appellate Division)
On February 23, 2015, the HPB issued an order granting variances to Mimosa
Residences Condominium Association, lnc. (Hereinafter Mimosa), for the property
located at 6525 Collins Avenue. Bel Aire on the Ocean Condominium Association,
lnc., (Bel Aire) filed an appeal, via a petition for certiorari, challenging the HPB Order
to grant the variances. ln the interim, Mimosa abandoned its variances, and as a
result, BelAire has voluntarily dismissed its petition. This matter is now resolved.
22. lN RE: 1775 JAMES AVENUE, Appealto HPB Special Master, Case No.: 15-001.
Mr. Mato Colak filed an appeal to the HPB Special Master of the February 23, 2015
decision of the Historic Preservation Board, as to a certificate of appropriateness
order issued for the Jade Hotel, located at 1775 James Avenue. Briefing schedule
has issued by the Special Master. Oral argument scheduled for June 1 ,2015.
23. lN RE: 42$ EUCLID AVENUE, Appealto the HPB Special Master, Case No. 15-002
Sunset Parking Systems, lnc. has filed an appeal to the HPB Special Master of the
certificate of appropriateness order entered on March 16, 2015 by the HPB on behalf
of Sofi Partners, LLC, located at 426 Euclid Avenue. A scheduling order has issued.
Oral argument scheduled for June 8, 2015.
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