LTC 404-2021 Final Order Granting Declaratory Relief-Josephine Manning vs. Fabian Basabe Miami-Dade County Elections Supervisor Christina White and City of Miami B (002)MIAMI BEACH
OFFICE OF THE CITY ATTORNEY
404-2021LTC No.
TO: Mayor Dan Gelber
Members of the City Commission
LETTER TO COMMISSION
FROM: Rafael A. Paz, Acting City Attorney �
DATE: September 27, 2021
SUBJECT: Final Order Granting Declaratory Relief-Josephine Manning vs. Fabian
Basabe, Miami-Dade County Elections Supervisor Christina White and City
of Miami Beach City Clerk Rafael Granado.
This L TC is to notify the Mayor and City Commissioners that the above-styled case, challenging
the eligibility of Commission Group II candidate Fabian Basabe to remain on the City's November
2, 2021 General Election ballot, has been resolved. The Court's September 24, 2021 Order of
Final Declaratory Judgment is attached hereto.
In the Order, the Court held that Defendant Basabe was not a resident of the City of Miami Beach
for "at least one year prior to qualifying," as required by Section 6.03 of the City Charter, and
therefore did not satisfy the City's qualification requirements. The Court directed the City Clerk to
remove Defendant Basabe's name from the list of qualified candidates for City Commission Group
11.
Accordingly, in compliance with the Court Order, the City Clerk has removed Mr. Fabian Basabe's
name from the list of qualified candidates for Commission Group II, and has noticed the following
information on the City's website at:
www.miamibeachfl.gov/city-hall/city-clerk/election-information/general-election/
Notice to the Voters-Fabian Basabe, a candidate in the race for the office of
Group II-Commissioner has been disqualified, resulting in an unopposed candidate
race. A vote cast in this race will not change the outcome as the remaining candidate,
Mark Samuelian, is deemed by law to be elected for that race.
Pursuant to the Court's Order, the Miami-Dade County Elections Department, in accordance
with Florida Division of Elections guidelines, will provide its Notice to all City voters (Vote by
Mail, Early Voting and Election Day) of the Candidate disqualification, resulting in an
unopposed candidate race, and that a vote cast in this race will not change the outcome, as
the remaining candidate is deemed by law to be elected for that race. In addition, the Order
enjoins the Miami Dade County Elections Department from tabulating or officially reporting
any votes for Mr. Basabe, in accordance with State guidelines.
RAP/ag
We are committed ta providing excellent public service and safety to all who live, work, and play in our vibrant, tropical, historic community
Filing# 135303755 E-Filed 09/24/2021 06:29:42 PM
IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL
CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA
CASE NO: 2021-021069-CA-01
SECTION : CA30
JUDGE: Reemberto Diaz
Josephine Manning
Plaintiff(s)
vs .
Fabian Basabe et al
Defendant(s)
I ------------
FINAL DECLARATORY JUDGMENT
FACTS AND PROCEDURAL HISTORY
On September I 0. 2021. Defendant. Fabian Basabe filed papers with the Miami Beach
City Clerk. seeking to gualify to run as a candidate for Miami Beach City Commission in Group
2. Basabe listed his home address as 9 Island Avenue. Apt. 2105. Miami Beach. Florida 33139 .
On September 14. 2021. Plaintiff, Josephine Manning filed the above titled action alleging that
Basabe did not meet the eligibility reguirements to run for Miami Beach City Commission. as he
had not been a resident of Miami Beach for a period of a year or longer before gualifying to run
for office. The Complaint prays that this court declare that Basabe was not a resident of Miami
Beach for a period of a year before submitting his gualifying papers and is thus barred from
seeking election to the Miami Beach City Commission. Basabe. conversely, states that the
address on his gualifying papers is his home and subseguently moved to dismiss the Complaint.
As per the Florida Rules of Judicial Administration regarding matters relating to elections, the
matter was expedited . This court was then presented with Motions and testimony at a hearing
that took place on September 24. 2021. All parties were provided ample opportunity to present
testimony. make arguments and be heard otherwise on this matter. Mr. Basabe was advised by
Case No: 2021-021069-CA-O 1 Page 1 of 10
the Court that he had the righ t to legal counsel and chose instead to proceed pro se . After
weighing the evidence presented at hearing and re v iewing all of the testimony, the Court finds as
follows:
FACTUAL FINDINGS
Section 6 .03 of the City of Miami Beach Charter states in relevant part:
"The City Commission shall cause to be placed on the ballot to be used in
the general election the name of any qualified elector of the City residing
within the City at least one year prior qualifying ........... All candidates
qualifying for office shall have taken, signed and subscribed to an oath or
affirmation in writing in which he/she shall state (1) the title of the office for
which he/she is a candidate; (2) that he/she is a qualified elector of the
City of Miami Beach, Florida, and has resided in the City at least one year
prior to qualifying; (3) his/her legal residence, by street and number; (4)
that he/she is qualified under the ordinances (including Miami Beach City
Code Chapter 38 governing "Elections'') and Charter of the City of Miami
Beach , Florida, to hold the office for which he/she is a candidate."
Fabian Basabe submitted his qualifying papers to the City of Miami Beach on September
10 , 2021. Accordingly, as per the City Charter, Fabian Basabe had to be a resident of Miami
Beach by September I 0, 2020. The court finds he fails to meet that requirement.
The record evidence indicates that Basabe owns no property on Miami Beach. Has no
homeowners ' exemptions on Miami Beach and presents no proof that he was a lawful resident of
Miami Beach in time to be able to qualify to run for office in 2021.
The Court received unrefuted evidence of the following :
• On September 10, 2020, neither Fabian Basabe nor his wife owned any property in
Miami Beach in their own names . Although Basabe 's wife was a manager of an
Case No: 2021-021069-CA-O 1 Page 2 of 10
LLC that owned the apartment in question at that time, the LLC had been
disbanded before September 10, 2020 and Basabe presented no documentation
that he, himself, was ever part of the LLC at any time .
• On September 10, 2020, Fabian Basabe was registered to vote at his parent's
home in Bay Harbor Islands at 10201 E. Broadview Drive, Bay Harbor Islands,
Florida 33154.
• On September 10, 2020, the address listed on Fabian Basabe driver's license was
at his condominium at the Epic Miami, 200 Biscayne Boulevard, Apt. 4305, Miami ,
Florida 33131.
• On October 7, 2020, Fabian Basabe entered a plea of Noto Contendere in a
criminal matter, B-20-017940 (F-20-009355), in which he was involved. The
address provided to Criminal Division of this Court in closing out his case was for
an apartment in the City of Miami at 200 Biscayne Boulevard, Apt. 4305, Miami,
Florida 33131.
• On November 3, 2020 , Fabian Basabe voted in the 2020 General Election in a
precinct in Bay Harbor Islands where he was registered to vote.
• In April 2021 Fabian Basabe changed both his voter registration and driver's license
to the address in Miami Beach.
ANALYSIS
DECLARATORY JUDGMENT
The Florida Declaratory Judgment Act is remedial in nature and should be broadly
construed. Dept. of Environmental Protection v. Garcia, 99 So. 3d 539 , 544 (Fla. 3d DCA
2011 ). However, in order to properly invoke the jurisdiction of the circuit court, a party seeking
declaratory relief must not only show that he or she is in doubt as to the existence or
nonex istence of some right or status, but also that there is a bona fide , actual, present, and
Case No: 2021-021069-CA-01 Page 3 of 10
practical need for the declaration. Id. Here , the parties are in dispute as to the proper
interpretation of the City Charter and how it should be applied to the facts in this case as the
Plaintiff asks the Court for a declaration that Defendant, Basabe did not lawfully reside in Miami
Beach on September 10, 2020 , and thus does not meet the statutory requirements to run for
Miami Beach Commission .
Although Basabe states that it is undemocratic to remove him from the ballot, he neglects
to understand the importance of the rule of law. Although "there is a strong public policy against
courts interfering in the democratic processes of elections ," ( See Florida. League of Cities v.
Smith, 607 So. 2d 397 , 400 (Fla.1992) ), courts have declared that the right to seek public office
is not a constitutional absolute , but such privilege is subject to reasonable restraint and
conditions. See Holley v. Adams, 238 So .2d 401 , 406 .
The interpretation of a statute is a purely legal matter. See Stock Building Supply of
Florida, Inc. v. Soares Da Costa Construction Services, LLC., 76 So . 3d 313 , 316 (Fla. 3d
DCA 2012). Section 6 .03 of the City of Miami Beach Charter is clear: " ... All candidates
qualifying for office shall have taken, signed and subscribed to an oath or affirmation in
writing in which he/she shall state (1) the title of the office for which he/she is a
candidate; (2) that he/she is a qualified elector of the City of Miami Beach, Florida, and
has resided in the City at least one year prior to qualifying; ... " A review of a statute must
commence with the plain meaning of the actual language contained therein. See Diamond
Aircraft Industries, Inc. v. Horowitch , 107 So. 3d 362 , 367 (Fla. 2013). Examining the plain
language of the statute will give effect to leg islative intent. Id. These same rules of statutory
construction used to evaluate the Florida Statutes are also applicable to municipal ordinances and
to the provisions of a city charter. See Great Outdoors Trading, Inc. v. City of High Springs,
550 So. 2d 483 , 485 (Fla . 1st DCA 1989). The only valid interpretation of the Miami Beach
Charter is that Basabe, who attempted to qualify to run for Commission on September 10 , 2021 ,
Case No : 2021-021069-CA-O 1 Page 4 of 10
needed to have been a resident of Miami Beach on September I 0, 2020. Moreover, the City of
Miami Beach expressly made one year the outer limit of residency when it made clear that
residency must be "at least" one year prior to qualifying. Accordingly, Basabe could not be
someone merely intending to reside there, nor someone transitioning to become a resident, but an
actual resident one year before qualifying to run for office. Furthermore, the use of the phrase
"h as resided in the City at least one year prior to qualifying" signifies that the prospective
candidate has to maintain his or her residency in that district for the entire year. Courts have
noted that legislative bodies "know[s] the meaning of the words in the statute and [have]
expressed its intent by use of those words." Overstreet v. State , 629 So.2d 125 , 126 (Fla.1993).
While the Charter section in question states that it pertains to "qualifications," the
residency requirement pertains to the candidate's eligibility to run for office. See Spence-
Jones v. Dunn, 118 So.3d 261, 262 (Fla. 3d DCA 2013). The word "eligible " when used in
speaking of a candidate for office as being eligible, means capable of being chosen. Holley at
405; see also Bradley v. Clark, 133 Cal. 196, 65 P. 395 (190 I). Accordingly , Fabian Basabe is
not eligible to stand for election to be a City of Miami Beach Commissioner because he did not
reside in the district for at least one year before attempting to qualify to run and must be
disqualified.
"A 'legal residence' is the place where a person has a fixed abode with the present intention
of making it his or her permanent home." Perez v. Marti, 770 So. 2d 284 (Fla. 3d DCA 2000),
citing Walker v. Harris , 398 So. 2d 955 (Fla. 4th DCA 1981). Establishment of one's residence
depends on a variety of acts or declarations all of which must be weighed in the particular case as
evidence would be weighed as to any other subject. Id., citing Bloomfield v. City of St.
Petersburg Beach , 82 So.2d 364 (Fla.1955). "Where a good faith intention is coupled with an
actual removal evidenced by positive overt acts , then the change of residence is accomplished.
This is so because legal residence consists of the concurrence of both fact and intention. The
Case No: 2021-021069-CA-01 Page 5 of I 0
bona fides of the intention is a highly significant factor." B/oomfield,at 368. A person's
"domicile" is defined to be "the place where a person has his true fixed home and principal
establishment, and to which, whenever he is absent, he has the intention ofreturning." Reynolds
v. Wohl, 332 F.Supp.2d 653 (S.D.N.Y 2004) "The factors considered in determining domicile
are numerous and include home ownership, driver's license, voting registration .... The
individual's own declarations are usually accorded little we ight when in conflict with the facts or
when the question is close." Jaisinghani v. Capital Cities/ABC, Inc ., 973 F.Supp. 1450 (S.D.
Fla.1997) (Emphasis Added).~
In order to evaluate whether Basabe meets the requirement to establish residency in
Miami Beach, one must separately analyze both his intentions and his ove11 acts. The entirety of
Basabe's argument is his testimony that the building staff of Nine Island Avenue Condominium
has known him for many years as a "resident" and that he pays the taxes on the property as well
as the electricity for the apartment to FPL. Although Basabe's testimony was less than credible,
those facts alone cannot establish residency as the same can be said about many of the other part
time resident-owners of the building. The one likely difference between them and Basabe is that
they own their units and Basabe doesn 't. In any event, assuming arguendo that Basabe was a
credible witness, and those two points may be viewed in Basabe's favor, the legal standard
requires one to look beyond these shallow items. Basabe's statement that the Nine Avenue
Island Condominium in Miami Beach is his "forever home" must thus be taken with a rather
large grain of salt in light of the evidence that he neither owned property in Miami Beach on
September 10, 2020, nor was the address on his driver's license located there nor was he
registered to vote in Miami Beach at that time. See a/so, Hendry v. Masonite Corp ., 455 F.2d
955 (5th Cir. 1972).
What remains indisputable, however, is that while Basabe says he lived in Miami Beach,
he testified that he owned an apartment in the City of Miami and had several other homes as
Case No: 2021-021069-CA-01 Page 6 of 10
well. Basabe's own testimony was that he stays in many different homes on different dates
whenever he wishes. At most, the Nine Avenue Island condominium was Basabe's temporary
vacation style property as confirmed by the President of the Nine Island Avenue Condominium
Association. As the Third District pointed out in Perez, "If the only overt acts necessary were to
take a few clothes to a room for a few hours , one could register to run for office from a hotel
room in a foreign state." Perez at 290.
While merely saying your vacation home is now your permanent residence may show
some superficial intent to change one 's residency , not changing your voter registration nor the
address on your driver 's license, nor even forwarding y our credit card bills to the new address by
September 10 , 2020 , shows that there was neither true intent nor action towards actually
changing your residency. "Determination of a party's domicile requires a 'totality of the
circumstances' approach weighing a constellation of objective facts , no single one of which is
entitled to controlling weight. Among the numerous indicia considered are .... where real and
personal property are located, where driver's and other licenses are obtained, where mail is
received , ... where bank accounts are maintained , where places of business or employment are
located , and where memberships in local professional , civil , religious or social organizations are
established ." Slate v. Shell Oil Co., 444 F .Supp.2d 1210 (S.D. Ala. 2006). The Third District,
in Perez v. Marti, 770 So.2d 284 (Fla. 3d DCA 2000), found that an individual who had stated
that he moved into a shed (located on his father's farm) within his district, was not credible
because he testified that he would only spend a few hours there. The President of the Nine Island
Avenue Homeowners Association testified that Basabe was not a PERMANENT resident of
Nine Avenue Island , but a temporary one. These are the same ties to the previous residence that
Third District in Perez found troubling. Just like Demetrio Perez Ill , Basabe had no signed
lease, nor did he own any property in fee simple in Miami Beach . He also had very little else of
what the Third District seemed to demand in a bona fide residence. Id. at 290 . While Demetrio
Perez III at least changed his voter registration , Basabe did not. Other than vague and conflicting
Case No: 2021 -021069-CA-01 Page 7 of 10
statements about where he lives and for how long, there is no evidence whatsoever that
apartment at Nine Avenue Island was ever the official Basabe family residence as both he and
his wife testified that they stay in any home they wish. In fact, although much nicer and roomier,
under the law, the condominium at Nine Avenue Island is still the equivalent of Perez' shed.
The law in this matter is unambiguous. Reasonable residency requirements as a
qualification for candidacy to public office are a valid means ofregulating the election of public
officials. See Marina v. Leahy, 578 So .2d 382 (Fla. 3d DCA 1991); see also Daves v. City
of Longwood, 423 F .Supp. 503 (M.D.Fla.1976). Accordingly , as the Court, by a
preponderance of the evidence, finds that Basabe violated the residency requirement of the City
Charter, and he must be disqualified.
CONCLUSION
This court is keenly aware and sensitive to the right of Citizens to choose their
representatives and that the intromission into the democratic process is an action to be taken only
after serious and thoughtful reflection. It is also aware the Charter of the City of Miami Beach is
the expressed will of the people of that city and that it was effectuated by and through their duly
elected representatives and conscientious and professional staff. Section 6.03 of the Charter is
clear that the voters of the City of Miami Beach unequivocally mandate that candidates for City
Commission must have resided in the City for a year before qualifying to run for office. The
Chaiier-this expression of the people's will -is clear and unambiguous in that respect.
Therefore , this Court concludes that Fabian Basabe was not a resident of Miami Beach
on September 10, 2020 and thus was not a Miami Beach resident for a full year in order to be
able to qualify to run for office on September 10 , 2021. Fabian Basabe fails to meet the
requirements set forth in Section 6.03 of the Miami Beach City Charter and is thus not qualified
Case No: 2021-021069-CA-01 Page 8 of 10
to run as a candidate for Miami Beach City Commission in the 2021 General Election. His
Motion to Dismiss is accordingly denied.
Defendant, City Clerk, Rafael Granado, is ordered to remove Fabian Basabe from the list
of qualified candidates for the 2021 General Election in Miami Beach and to declare that the
incumbent Commissioner in Group 2 has been elected without opposition as the sole remaining
qualified candidate in that race.
In accordance with the Florida Division of Elections guidelines on these matters, as it is too
late to alter the printing of the ballots for the Miami Beach General Election, Defendant,
Christina White, is ordered to provide proper notice to all Miami Beach voters (Vote by Mail ,
Early Voting and Election Day) that Fabian Basabe has been removed from the list of qualified
candidates for City Commissioner, Group 2. White and the Miami-Dade Division of Elections
are also enjoined from tabulating or officially reporting any votes for Fabian Basabe in the 2021
General Election in Miami Beach in accordance with the state guidelines.
~ The district court in Jaisinghani uses the word "domicile'' to mean place of legal res id ence for
purposes of personal jurisdiction. "Domicile" for purposes of personal jurisdiction in federal court is identical to
"residence" within the meaning of state election law . You can only have one "domicile" under federal personal
jurisdiction analysis just like you can only have one ·'residence" for purposes of state election law . Under both laws ,
you can have multiple residences, but only one counts for le gal purposes . As Basabe testified, his "residence" for
legal purposes was the Epic condominium where he received the bulk of his bills and mail.
DONE and ORDERED in Chambers at Miami-Dade County, Florida on this 24th day of
September, 2021.
~~~-•?
2021-021069-CA-O 1 09-24-2021 6: 19 PM
Case No: 2021-021069-CA-01
Hon. Reemberto Diaz
CIRCUIT COURT JUDGE
Electronically Signed
Page 9 of 10
Final Order as to All Parties SRS #: 12 (Other)
THE COURT DISMISSES THIS CASE AGAINST ANY PARTY NOT LISTED IN THIS
FINAL ORDER OR PREVIOUS ORDER(S). THIS CASE IS CLOSED AS TO ALL
PARTIES.
Electronically Served:
Fabian Basabe, fabianbasabe2@aol.com
Fabian Basabe, fb @ fabianbasabe.com
Fabian Basabe, fb @ fabianbasabe.com
Fabian Basabe, fabianbasabe2 @ aol.com
Jean K Olin , jeanolin.munilaw@ gmail.com
Jean Olin , Esq ., jeanolin .munilaw@ gmail.com
Juan Carlos Planas , jcplanas@ planaslawfirm .com
Michael Beny Valdes, mbv@ miamidade.gov
Michael Beny Valdes, mora@ miamidade.gov
Oren Rosenthal , Oren.Rosenthal@ miamidade.gov
Oren Rosenthal , orosent@ miamidade.gov
Oren Rosenthal , dmh @ miamidade .gov
Rafael A Paz, rafaelpaz@ miamibeachfl .gov
Physically Served:
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