LTC 345-2023 Court Victory in Penrod Brothers Inc. v. Boucher Brothers Miami Beach LLCMIA MI BEACH
OFFICE OF THE CITY ATTORNEY
LTC No. _______ _
LETTER TO COMMISSION
TO: Mayor Dan Gelber and Members of the City Commission
FROM: Rafael A. Paz, City Attorney
DATE: August 1, 2023
SUBJECT: Court Victory in Penrod Brothers Inc. v. Boucher Brothers Miami Beach LLC
& City of Miami Beach
The purpose of this L TC is to advise you of today's court victory in Penrod Brothers Inc.
v.Boucher Brothers Miami Beach LLC & City of Miami Beach. As you are aware, Penrod
Brothers Inc. ("Penrod's"), the operator of Nikki Beach, has filed a lawsuit seeking, among
other things, an emergency injunction to halt the City's competitive request for proposals
("RFP") in connection with the City-owned property at 1 Ocean Drive and related
concession area. Penrod's filed a fourteen-count Amended Complaint alleging, among
other things, that the City purportedly breached the Lease and violated various City
Charter, City Code, and state statutory provisions in connection with the RFP.
The City moved to dismiss every count of the Amended Complaint against it. Today,
Judge Lisa Walsh entered an Order dismissing the entire Amended Complaint.
Judge Walsh dismissed two of the claims-one for an alleged violation of Penrod's
alleged due process "expectation interest" in a future lease with the City, and one for
allegedly implementing the RFP process via resolution instead of an ordinance-with
prejudice. Specifically, Judge Walsh held that Penrod's "cannot assert any protectable
property interest in a future lease with the City" and that "there was nothing improper
about initiating the RFP by resolution rather than ordinance." All other claims were
dismissed without prejudice, but with two important caveats. First, Judge Walsh noted
that Penrod's is required to exhaust all available administrative remedies, including the
bid protest procedures outlined in the City Code, before resorting to the Circuit Court.1
Second, Judge Walsh ruled that Penrod's claims that the City will, hypothetically, violate
applicable law concerning a City-wide referendum and/or Planning Board approval
(among other things) are "unripe" and "merely speculative."
The City's case was litigated entirely in-house by Chief Deputy City Attorney Rob
Rosenwald, First Assistant City Attorney Henry J. Hunnefeld, Senior Assistant City
Attorney Freddi Mack, and Assistant City Attorney Benjamin Z. Braun, with critical support
from our paralegal specialists, Isabelle Baraks, Merari Motola, and Sandra Perez.
1 Yesterday, Penrod served upon the City a letter protesting the RFP specifications pursuant to City Code
Section 2-371 (a)(1 ). The City will respond to this letter of protest in due course.
We ore committed lo providing excellent public service and safety lo oil who live. work, and ploy in our vibrant, tropical, historic community.
345-2023