Stern vs. City of Miami II - Public Records Action

IN THE CIRCUIT COURT OF THE
ELEVENTH JUDICIAL CIRCUIT IN

AND FOR MIAMI-DADE COUNTY,
FLORIDA
GRANT STERN,
CASE NO.:
Plaintiff,
v.
CITY OF MIAMI, a municipal corporation

In the State of Florida, VICTORIA MENDEZ,
City Attorney, City of Miami, FRANCISCO J.
GARCIA, Director of Planning and Zoning,
City of Miami,
Defendants.
_____________________________________/
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

TO ENFORCE FLORIDAS PUBLIC RECORDS & MEETINGS LAWS
Plaintiff, GRANT STERN, by and through undersigned counsel, hereby files his Complaint
for Declaratory and Injunctive Relief against Defendants CITY OF MIAMI, VICTORIA MENDEZ,
and FRANCISCO J. GARCIA, to enforce the denial of his rights under Florida Sunshine Laws,
including its Public Records and Public Meeting Laws, and in support thereof, states as follows:
INTRODUCTION
1. This action is brought for relief against the City of Miami, Florida, City Attorney Victoria
Mendez, and City Planning and Zoning Director Francisco J. Garcia pursuant to Fla. Const. Art. I
24, Fla. Stats. 119 et seq., Fla. Stat. 286.011, the Miami-Dade County, Fla. Home Rule
Charter Bill of Rights (Miami-Dade Bill of Rights), and the Miami, Fla. City Charter 52 et seq.
(City Charter).
2. This is an action for declaratory, injunctive, and other equitable relief pursuant to Fla. Stats.
86 et seq., Fla. R. Civ. P. 1.610, Miami-Dade County, Fla. Home Rule Charter Bill of Rights
(A)(2), and Miami, Fla. Code of Ordinances 52(C).
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3. This Court has jurisdiction pursuant to Fla. Const. Art. V 5(b), Fla. Stats. 26.012,
86.011, 119.11, and 286.011, and Fla. 11th Jud. Cir. L. R. R-1-3(12).
4. Venue is proper pursuant to Fla. Stat. 47.011.
5. This Complaint references the Plaintiffs Records Requests, City documents,
communications between City officials, other cases, and supplementary materials. Record
Requests relevant to this Complaint are attached as Exhibit A. City documents referenced in this
Complaint are itemized and attached as Exhibit B. Communications referenced in this Complaint
are itemized and attached as Exhibit C. Relevant court documents from other cases referenced
in this Complaint are itemized and attached as Exhibit D. Supplementary materials referenced in
this Complaint are itemized and attached as Exhibit E.
PARTIES
6. At all times material hereto, Plaintiff Grant Stern (Stern) was and is a citizen and elector
of Miami-Dade County, Florida, and resident of the City of Miami. Stern works as a journalist,
radio broadcaster, mortgage broker, public advocate, and participates as an expert witness in real
estate actions. Stern writes columns for Occupy Democrats, and Photography is Not a Crime,
and a contributor to other publications, including Huffington Post and the Miami Herald.
7. Defendant City of Miami (City) is a municipal corporation located in Miami-Dade County,
Florida, and at all times relevant hereto, the employer of Defendants Victoria Mendez, and
Francisco J. Garcia.
8. At all times relevant hereto, Defendant Victoria Mendez (Mendez) was and is an agent,
servant, and employee of the City, and acting as its City Attorney.
9. At all times relevant hereto, Defendant Francisco J. Garcia (Garcia) was and is an agent,
servant, and employee of the City, and acting as its Director of Zoning and Planning.
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FACTS
01 Background
10. On August 21, 2012, Wal-Mart Stores East, LP (Walmart) submitted an application to
the Citys Department of Planning and Zoning (PZD) seeking administrative approval for a Class
II Special Permit to build a store located at 3055 N. Miami Avenue, Miami, FL. The proposed
location of Walmarts store is designated as Midtown Special District (SD-27) for zoning and
permitting purposes. See Miami, FL Zoning Code Miami 21 Appx. C. Walmart paid the City an
initial application fee of $9,219.00 for its Class II Warrant Planning Permit. Exhibit B-01. Garcia,
in his capacity as the Director of the PZD, possesses the sole authority to oversee all Class II
Permit applications, their compliance with the Citys zoning ordinances, and has sole authority to
issue the Final Approval of an application. See Miami, Fla. Zoning Ordinance 11000 (Ordinance
11000) 1301.2. All records pertaining to a Class II Special Permit are considered public records
under state law, and must be available to the public upon request. See Ordinance 11000 1307.1.
11. Director Garcia issued a Development Order, administratively approving Walmarts permit
on August 12, 2013. See Exhibit B-02. In the approval, Garcia expressly affirmed that he received
comments and recommendations from five (5) referral sources (mandatory under Ordinance
11000 1301.2), including the Zoning Section of the PZD, Department of Public Works, Office of
Transportation, Wynwood NET Office, and the Urban Development Review Board. See Exhibit
B-02. Walmarts permit was initially approved through August 12, 2014. See Exhibit B-07a.
12. Stern, and a group of other residents and citizens of the City, formally appealed the Citys
issuance of the Class II Special Permit to Walmart through the Citys Planning and Zoning Appeals
Board (PZAB). Stern and the other appellants paid the City a $500 appeal fee and contracted
with, and were represented by Mr. Paul C. Savage, Esq. (Savage) throughout their appeal to
the PZAB. See Exhibit B-03. Another appellant, Peter Ehrlich, was represented by Tucker Gibbs,
Esq. As part of the PZAB appeal, Stern was required to prepare and submit (within fifteen (15)
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days of the permits approval)- at his own expense, and with the assistance of counsel- a lengthy
written document listing the permits non-conformities with City law.
13. Appeals to the PZAB are conducted under Miami 21 2.2.1.1 and must follow the Quasi-
Judicial procedures outlined in Miami 21 7.1.4.
14. The PZAB heard Sterns appeal at a public hearing held on October 02, 2013. At the
hearing, the PZAB denied Stern and the citizens appeal, and upheld Director Garcias decision
to issue the permit. Stern and the citizens then applied for the PZABs decision to be reviewed by
the City Commission, and in addition to preparing the required documents, paid another $500 fee
for the City Commissions review. See Exhibit B-04.
15. The City Commission reviews the PZABs decisions de novo, as a body of original
jurisdiction, and may receive new evidence or materials pertinent to the determination of the
appeal. The City Commission may also hear the testimony of witnesses and may receive
evidence offered by the appellants.
16. In advance of the City Commission hearing, Stern, the other appellants, and Savage
prepared materials related to the Walmart project and submitted them for presentation at the
hearing. See Exhibit B-17. The appellants also consulted an interdisciplinary planning expert, Mr.
Mark Alvarez (Alvarez), who reviewed the non-conformities in Walmarts original application,
and was scheduled to testify and submit competent substantial evidence on the record about why
Walmarts permit should be denied. See Exhibit B-17.
17. The night before the public meeting, Stern, along with other individuals, discovered that
Garcia was using his personal email account to conduct official business relating to Walmarts
permit, and immediately requested copies of Garcias personal emails that were relevant to
Walmarts permit, along with the opportunity to inspect them in person. Garcia expressly denied
the existence of other personal emails relevant to the permit, and refused to supply any additional
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documents. Mendez also expressly denied access, referencing the upcoming meeting as the
reason to why access could not be granted.
18. On November 21, 2013, the City Commission held the hearing to review Stern and the
citizens appeal, wherein Alvarez presented testimony relating to the permit and submitted
competent substantial evidence as to why the permit did not conform to City law. The City
Commission nevertheless approved Resolution R-13-0471 (File No. 13-0103ii), which denied the
citizens appeal and affirmed the PZDs approval of Walmarts Class II Special Permit.
19. After the City Commission denied the appeal, some of the citizens- those who lived closest
to the permitted property- filed a Petition for a Writ of Certiorari with this Court on January 02,
2014, asking this Court to quash Resolution R-13-0471 because, among other things, the Class
II Special Permit improperly granted Walmart a variance, which is subject to a stricter standard of
review, notice, and public hearings process for the permits final approval. See Exhibit D-01a.
Although Stern had undisputed standing to participate as an appellant to the PZAB and City
Commission appeals, he did not have standing to join as a party to the Certiorari Petition. See
Ordinance 11000 1311.
20. On July 15, 2014 Walmart sent Garcia (via U.S. Mail and Email) a written request for the
extension of Walmarts Class II Permit, along with a $225 check to cover the application fee for
the request. See Exhibit B-07a.
21. On the following day, the PZD purportedly submitted an Inter-Office Memorandum to the
City Attorneys Office informing it of Walmarts time extension request, and noting that the
extension will be processed under Miami 21 7.1.2.4(c), which states that a Warrant shall be
valid for two (2) years (during which a building permit or Certificate of Use must be obtained), and
that a onetime extension (not exceeding one year) may be obtained if approved by the Planning
Director. See Exhibit B-07b. The PZD informed the City Attorney that Miami 21 is silent on the
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commencement date for an appealed permits time extension, and that legal advice was needed
on Miami 21s application to Walmarts Class II Special Permit. See Exhibit B-07b.
22. The City Attorney responded to the PZDs request for legal advice on August 12, 2014,
stating that both a minor modification and a non-minor modification (as determined by the
Planning Director) to a Class II Special Permit approved under Ordinance 11000, such as the
permit issued to Walmart, may be modified through the Warrant process. See Exhibit B-07.
23. Walmarts Class II Special Permit expired on August 12, 2014. Exhibit B08. However, on
August 25, 2014, thirteen (13) days after the permits expiration, Garcia approved Walmarts
request for a time extension, and extended the permits expiration date to August 12, 2015, albeit
under Miami 21 7.1.3.5.d.4(a). See Exhibit B-08.
24. Sometime between August 12, 2014 and September 16, 2014, the PZD purportedly
submitted additional questions to the City Attorneys Office, to which the City Attorney responded
in the form of a Supplemental Memorandum. See Exhibit B-09. The following day, Garcia issued
a revision to Walmarts Time Extension, which extended the permits expiration date to November
21, 2015. Exhibit B-10.
25. On October 15, 2014, this Court filed its Opinion on the Writ of Certiorari referenced above.
See Exhibit D-01b. In the Opinion, this Court noted that all provisions in the Citys previous Zoning
Code (Ordinance 11000) that were referenced in Miami 21 627 et seq. applied to SD-627,
including a Class II Special Permits administrative approval. See Exhibit D-01b. The Court also
noted that Miami 21s Planning, Zoning, and Appeals Board and its procedures replaced
Ordinance 11000s Zoning Board and its appeals procedures for SD-627. See Exhibit D-01b.
26. In reviewing the decision of an administrative bodys quasi-judicial action, such as the
November 20, 2013 City Commission hearing, the circuit court must decide whether the decision
was supported by competent substantial evidence, whether the essential requirements of the law
had been observed, and whether due process had been accorded. See Exhibit D-01b (citing City
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of Deerfield Beach v. Valiant, 419 So.2d 624, 626 (Fla. 1982); Florida Power & Light Co. v. City
of Dania Beach, 761 So.2d 1089, 1092 (Fla. 2000); Broward Cnty. v. G.B.V. Intl, Ltd., 787 So.2d
838, 843 (Fla. 2001)).
27. This Court quashed the City Commissions denial of the citizens appeal in its 3-0 ruling
against the City and Walmart, because Miami 21 627.2.15 restricted loading berths to a total of
three (3), and Walmarts approved plans departed from the essential requirements of the law by
including five (5) loading berths. See Exhibit D-01b. To support its ruling, this Court reviewed
Blacks Law Dictionarys and its definition of the word total, defined as [w]hole, not divided,
lacking no part, entire, full, complete, the whole amount. See Exhibit D-01b. This Court held that
the plain meaning of total was not a minimum requirement, as the City contended, but a limitation
on the total amount of loading berths allowed by City law. See Exhibit D-01b.
28. As part of its ruling, this Court adhered to its own Opinion in an earlier case, which held
that the [f]ailure of an agency to adhere to its own regulations constitutes a departure from the
essential requirements of the law. Lucia Dougherty v. City of Miami and Morningside Civic
Assoc., Inc., 13 Fla. L. Weekly Supp. 959a (Fla. 11th Cir. July 14, 2006); see also Combs v. State,
436 So.2d 93, 95 (Fla. 1983)1.
29. On October 15, 2014, the City held a staff meeting via email to review agenda items
(pending City Managers approval) for a November 20, 2014 meeting of the City Commission on
the Walmart permit. See Exhibit C-01. Defendants Garcia and Mendez were recipients to the
email. See Exhibit C-01.
30. On October 24, 2014, Defendant Mendez was quoted in the Miami Herald article as saying
that the City Commission will hold a public hearing limited to the issue of the loading berths. See
1 [T]he district courts of appeal should not be as concerned with the mere existence of legal error as much as with the
seriousness of the error. Although courts have a large degree of discretion in determining whether a departure from
the essential requirements of the law has occurred, they should exercise this discretion only when there has been
a violation of a clearly established principle of law resulting in a miscarriage of justice.
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Exhibit E-01. No formal hearing notice, hearing date, or meeting agenda was provided to Stern
the other appellants, other City residents, or members of the public at large. See Exhibit E-01.
31. It was not clear from Mendezs remarks to the Miami Herald whether the City Commission,
on remand, would review Walmarts original application (which contained the plans that included
five (5) loading berths, and was the subject matter of the PZAB and Commission appeals the
mandate referenced), whether the City Commission, on remand, would review a modified
application for a Class II Special Permit, or whether the City Commission, on remand, would
review a subsequent application by Walmart for a Major Use Permit or zoning variance. See
Exhibit E-01.
32. As stated earlier, Stern was a party to the original appeal to the PZAB, and he also actively
participated as an appellant at the November 21, 2013 hearing before the City Commission, when
it ultimately denied his appeal. Although Stern was not a party to the Petition for Certiorari, he
would still be appearing before the City Commission hearing as an appellant when it reheard the
appeal pursuant to the Courts Opinion and remand Order. Attorney Paul C. Savage continued to
represent Stern and the other appellants for the City Commissions review of Walmarts Class II
Special Permit.
02 Sterns Records Requests and Related Matters
33. Between October 24, 2014 and November 21, 2014, Stern made a series of public records
requests related to the Walmart project- and the upcoming City Commission hearing- via email to
multiple City employees, including Defendant Garcia, Defendant Mendez, and Assistant City
Attorney Barnaby Min (Min), who was previously employed as the Citys Zoning Director. See
generally Exhibit A. The initial request was sent on October 24, 2014, and pursuant to Mendezs
numerous responses, follow up requests were made on October 27, 2014, October 30, 2014,
November 04, 2014, November 07, 2014, November 10, 2014, and again on November 21, 2014.
See generally Exhibit A.
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34. Altogether, Stern requested the following items for production prior to the City
Commissions November 20, 2014 hearing:
a. Notice of the City Commissions hearing on Walmarts application;
b. Traffic Study related to Walmarts application;
c. Revisions to Walmarts application and plans;
d. Applications submitted to City by Walmart, including additional applications and
their location;
e. All information about the upcoming City Commission vote;
f. Legal opinions written by City officials relating to processing Walmarts application;
g. All emails pertinent to Walmarts appeal since January 01, 2014, including search
terms Walmart, Walmart Midtown, and @Walmart.com, along with other
search terms;
h. Emails by City officials related to the Walmart project sent or received on their
personal email accounts;
i. Records, including City ordinances, relating to the City Commissions hearing;
j. All documents, all written communications on 3055 N. Miami Ave., Walmart, and
all plans, notices of meetings, meeting notes, including copies of text messages,
emails, voicemails, pertaining to all requested items;
k. Direct access to materials concerning Walmarts application and the hearing at the
location where the records are kept;
See generally Exhibit A.
35. On October 24, 2014, shortly after Stern submitted his initial request, Mendez and Min
both acknowledged receiving the initial request, and affirmed that they would provide existing
records. Stern informed Mendez and the other request recipients that he would be updating his
request periodically, and Mendez acknowledged. Exhibit A at 3-8.
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36. On October 27, 2014, Stern resubmitted his request, noting that he would require the
records at least ten days before the referenced hearing, and asking for the expected date of
completion with the request. Exhibit A at 9-10. Stern also asked for a detailed reply regarding the
requested items. Exhibit A at 9-10. The Citys Office of Communications responded that it had
received and is processing the request, and that Stern would be notified of fees to acquire or
reproduce the information. Exhibit A at 11. Mendez responded two days later, on October 29,
2014, again acknowledging the request, and stating that her office will assist in responding to the
request. Exhibit A at 13. Mendez also, without citing any statute, said she does not have to provide
Stern with the City Ordinances related to Walmarts application. See Exhibit A at 13.
37. On October 27, 2014, journalist Erik Bojnansky (Bojnansky) of the Biscayne Times also
submitted a public records request via an email directed to Garcia, which requested staff reports
and attorney opinions related to the Walmart project, and asked when the hearing date would be.
See Exhibit C-02. Within seven (7) minutes of receiving Bojnanskys request, Garcia forwarded
the email to Mendez, Min, and other City employees. Exhibit C-02a.
38. On October 30, 2014, Min directed Garcia to provide any responsive documents to
Bojnansky. See Exhibit C-02b. On the following day, Garcia responded to Min and said that there
were no responsive documents. See Exhibit C-02c.
39. Stern also resubmitted his requests on October 30, 2014, which was acknowledged on
the same day by the Citys Office of Communication. Exhibit A at 15-16.
40. Stern again resubmitted his requests on November 04, 2014. Exhibit A at 18.
41. On November 05, 2014, the City certified Resolution R-13-0471, and certified the
November 21, 2013 Meeting Minutes for adoption at the upcoming City Commission meeting.
See Exhibits B-11-12.
42. On November 06, 2014, an unsigned version of Garcias Staff Analysis was prepared, and
included a placeholder for the name of the agent that would be providing plans on behalf of
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Walmart, and a placeholder for the date of the revised plans. See Exhibit B-18a. Although Garcia
purportedly had not received or reviewed Walmarts revised plans, the document indicated they
would nevertheless be approved. See Exhibit B-18a.
43. Sometime between October 15, 2014 and November 06, 2014, the PZD submitted a
request for Walmart to provide revised plans reflecting a total of (3) loading berths. See Exhibits
B-18 & B-18a. Walmart finalized its revised plans on November 06, 2014. Exhibit B-13.
44. On November 07, 2014, the PZD prepared and postmarked a parcel of certified mail
addressed to Stern containing a document titled City of Miami Notice of Public Hearing which
stated a public hearing would be held before the City Commission on Thursday, November 20,
2014 at 02:00pm for Denying or Granting the Class II Special Permit Appeal to Allow New
Construction at 3055 N Miami Av. See Exhibit B-16. The Notice did not contain a meeting agenda
or any other substantive information or documents related to the meeting. Exhibit B-16.
45. Stern received a response from Mendez on November 07, 2014 where she stated that the
records were being searched for. Exhibit A at 19. Stern resubmitted his request that same day.
Exhibit A at 20.
46. On November 10, 2014, Defendant Mendez signed and approved two versions of a
Resolution related to the upcoming City Commission hearing, which would adopt by reference
and fully incorporate the recitals and findings contained in the preambles to the documents. See
Exhibits B-14 & B-15.
47. Stern resubmitted his requests again on November 10, 2014. See Exhibit A at 21.
48. The City finalized its Meeting Agenda for the November 20, 2017 City Commission hearing
sometime between October 15, 2017 and November 12, 2017. See Exhibit B-17. The finalized
Meeting Agenda, which included the items to be heard, was printed by the City on November 12,
2017, eight (8) days before the hearing. See Exhibit B-17.
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49. Walmart emailed Garcia a copy of its revised plans (with a November 06, 2014 certification
date) on November 13, 2014. See Exhibit B-13.
50. On Friday, November 14, 2014, Garcia sent emails discussing Walmarts application, the
Staff Analysis, and the upcoming meeting to multiple City employees, including Mendez and Min,
some as late as 10:00 PM. Exhibit C-03. The following day (on Saturday), Garcia signed off on
his final staff opinion and sent a series of emails with instructions to include his staff opinion in
the upcoming November 20, 2014 public meeting. Exhibit C-03.
51. On November 17, 2014, the City Manager purportedly circulated an Inter-Office
Memorandum advising Garcia and other City officials that a place holder was included in the
original Meeting Agenda and that the placeholder Analysis was being replaced by a document
titled Analysis for Modifications to Loading Berths for Class II Special Permit, and the
placeholder Supporting Docs was being replaced by the document titled Class II Special Permit/
Wal-Mart Midtown. Exhibit B-19. In the same Memorandum, the City Manager tells Garcia that
the documents have been posted for public view on the PZDs website and is providing them to
be submitted into the public record at the meeting. See Exhibit B-19.
52. The hearing on the appeal before the commission was held on November 20, 2014 at
02:00pm. Stern was not provided copies of- or directed access to- any of the records he requested
for production in advance of the City Commission hearing wherein he was a named appellant,
and the existence of the requested records had not been confirmed, denied, or cited as exempt.
See generally Exhibit A. The Defendants refusal to provide Stern with the requested records
limited the information relevant to his appeal, and impacted his ability to present competent
substantial evidence as a designated appellant at the hearing.
53. Stern resubmitted the request on November 21, 2014, after the hearing. Exhibit A at 23.
54. Stern did not receive any communications from Mendez, Garcia, or any other City
employee regarding his request between the November 10, 2014 resubmission and an email on
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December 03, 2014 asking if he received requested documents that were not posted on Legistar.
See Exhibit A at 22-24. Stern informed Mendez that her December 03, 2017 email was the first
communication he received regarding his requests since November 07, 2014, and that no
documents have been provided. Exhibit A at 25.
55. On December 04, 2014, two weeks after the City Commission hearing, Mendez informed
Stern that the completed record was now available in Legistar, that the traffic study was pending,
that he received the modified plans at the hearing, and that he had also received any Opinions
issued from Mendezs office. See Exhibit A at 26. Mendez also acknowledged the emails were
still pending. Exhibit A at 26.
56. The documents available in Legistar after the meeting included:
a. Undated City Commission Fact Sheet referencing upcoming November 20, 2014
meeting;
b. October 15, 2014 Eleventh Circuit Opinion for Case No. 14-004 AP;
c. November 05, 2014 Certification of City Commissions November 29, 2013
Resolution;
d. November 05, 2014 Certification of November 21, 2013 Meeting Minutes;
e. Undated PZD Analysis for Modifications to Class II Special Permit stating the
analysis is in progress and the analysis and other supporting documentation would
be available at the PZD webpage as soon as available;
f. Undated PZD notice stating PZD will post supporting documents at the PZD
webpage as soon as they become available;
g. November 10, 2014 draft v2 of City Resolution submitted by Mendez stating that
PZD had approved a Class II Special Permit Application on August 12, 2013, and
on November 20, 2014 the City Commission ruled against the application;
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h. November 10, 2014 draft v3 of City Resolution submitted by Mendez stating that
PZD had approved a Class II Special Permit application on August 12, 2013, and
on November 20, 2014 the City Commission ruled in favor of the application;
i. March 06, 2012 Exhibit by Stewart Title Guaranty Company regarding the site of
the Walmart project;
j. Eight documents referenced in the Meeting Agenda for the City Commissions
November 21, 2013 hearing, incorporated into the November 20, 2014 Agenda,
titled (1) Class II Approved by PZ Dept.pdf; (2) PZAB Supporting Docs.pdf; (3)
Appeal to PZAB.pdf; (4) Appeal to CC.pdf; (5) Maps & PZAB Reso.pdf; (6)
Legislation (Version 3).pdf; (7) Legislation (Version 4).pdf; (8) ExhibitA.pdf;
k. Six documents submitted for presentation at the City Commissions November 21,
2013 hearing, previously unavailable on Legistar or the City Citizens website, and
incorporated into the November 20, 2014 Agenda, titled (1) Submittals-Emails-
Midtown Walmart.pdf; (2) Submittal Peter Ehrlich.pdf; (3) Submittal- Mark
Alvarez Presentation Midtown Walmart Class II; (4) Submittal Paul C. Savage
Powerpoint Presentation Appeal of; (5) Submittal North Miami Elevation.pdf;
(6) Submittal Projection-WalMart in Midtown.pdf; (7) Submittal-Presentation-
Background.pdf;
See Exhibit B-17.
57. Stern responded in his December 03, 2014 email, and informed Mendez that numerous
documents in Legistar were missing, referenced only by URL, and that the available documents
were available in Legistar only after the meeting had commenced. See Exhibit A at 28-30. He
had only received Walmarts revised plans at the start of the hearing, and was not given the
requested access to certified copies of the full-size plans, or an opportunity for in-person
inspection of those plans or other hearing documents in order to view and copy them. See Exhibit
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A at 28-30. He also stated that none of the opinions requested from Mendezs office had been
supplied, and that he had not received any of emails requested. Exhibit A at 28-30.
58. On December 04, 2014 Mendezs assistant emails Stern two memoranda her office
prepared regarding the project. Exhibit A at 31 (memoranda attached as Exhibits B-07 & B-09).
59. Between November 20, 2014 and December 05, 2014, the City finalized its Marked
Agenda on the November 20, 2014 City Commission hearing, and printed it on December 05,
2014, which included additional documents. See Exhibit B-20.
60. On December 22, 2014, the Office of Communication finally emailed Stern a list of email
search terms and an invoice with a quote for reproducing the email records. Exhibit A at 35-41.
61. In his requests, Stern expressly informed the Citys staff, including Garcia and Mendez,
that the requests related to the City Commissions upcoming hearing, that he be provided access
before the meeting, and that time was of the essence. See generally Exhibit A.
62. Although the City and Mendez acknowledged the requests, the only record produced
between the October 24, 2014 initial request and the start of the November 20, 2014 City
Commission hearing was the Notice the PZD postmarked on November 07, 2014.
63. Stern was able to secure a letter-sized copy (but not the full-sized plans Stern requested
access to of Walmarts amended plans) at the start of the hearing, but access to the partial
production on Legistar was not granted until after the meeting. Likewise, the City Attorney
memoranda, and the invoice for the requested emails were not provided until two weeks after the
meeting. See Exhibit A at 35-41. The invoice stated that it would cost $100 for running two (2)
search criteria with up to forty (40) specific key words or phrases, and for creating Outlook PST
files with the output and save them onto a CD/DVD or HD, (depending on the volume). See Exhibit
A at 35-41. It would also take four (4) days to create the storage media after approval of payment.
See Exhibit A at 35-41. There was no estimate as to how many pages the search would produce,
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purportedly because the search would not be initiated until after payment was processed. See
Exhibit A at 35-41.
64. Neither the City, Mendez or Garcia provided additional records to Stern within the time-
period he requested them, did not provide Stern the opportunity to inspect the records before the
meeting, and did not deny or affirm the existence of the records Stern requested. See generally
Exhibit A. They did not cite to any statute exempting production of the records, and delayed
making some of the requested records available- including the item to be heard- until after the
public hearing- at which Stern was listed as an appellant, and represented by counsel- had
commenced. See Exhibit A.
65. Garcia, director of the PZD, and the custodian for most of the requested records did not
respond at all to Sterns written requests, even though emails recovered in a subsequent public
records action indicate that the PZD knew that the public records requests had been made. See
generally Exhibit A. On December 05, 2014 Garcia denied the existence of the traffic study to
Mendez and Min, but excluded Stern from his response. See Exhibit A at 52. Although Garcia
stated that Walmarts plans were posted on the Citys website well in advance of the City
Commission hearing, neither Mendez or Garcia referred Stern to the plans purportedly posted
on the City website in advance of the hearing. See Exhibit A at 52; see also Exhibit A generally.
Neither City, Garcia, or Mendez referred Stern to Legistar before the start of the meeting. See
generally Exhibit A.
04 Additional Facts
66. A majority of the same individuals that filed the January 02, 2014 Certiorari Action (Case
No. 14-0004 AP) filed another Petition for Certiorari with this Court on December 16, 2014 to
review City Commissions November 20, 2014 decision granting Walmarts application. See
Exhibit D-02a (Pfeffer II). The Petitioners in Pfeffer II later sought second-tier review with the 3d
DCA, filing their Petition on September 24, 2015. See Exhibit D-03a.
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67. On September 03, 2015, Stern made a separate public records request in person at the
City Attorneys Office (received by Assistant City Attorney Xavier Alban), for information that
would be helpful to the Pfeffer II Petitioners and their upcoming appeal to the 3d DCA, including
a request for a copy of and direct access to the PZDs complete file for the Walmart project, and
emails sent between October 15, 2014 and December 04, 2014. See generally Exhibit D-04a.
68. Eighteen days later, on September 21, 2015, the City sent Stern access to an electronic
file with an incomplete production of records relating to Walmarts project. See Exhibit E-04.
69. As part of its filings for the 3d DCA Petition, Walmart submitted the Time Extension
approved by the PZD in 2014, which had not been previously referenced or produced by the City,
Mendez or Garcia to Stern. The City, for the first time since Walmart submitted its application,
admitted in its response to Pfeffer II, that Garcia had only completed three (3) of the five (5)2
necessary and required referrals referenced in Paragraph 11 above, despite representations to
the contrary at every prior level of review concerning Walmarts application, including the
affirmations Garcia made in his final approval of Walmarts permit.
70. On November 13, 2015, Stern filed a public records enforcement action with this Court to
compel production of the documents that had been unproduced per his September 03, 2015
public records request. See Exhibit D-04a.
71. During that enforcement action, the City produced, for the first time, thousands of records
responsive to Sterns October 24, 2014 requests. See Exhibits E-04-07. Although those records
existed and although many were responsive to the 2014 requests, they were not provided or
referenced at the time the 2014 requests were made, and their existence was discovered between
2 The Citys interpretation of the required referral process is essentially the logical inverse of its interpretation of the
loading berth issue referenced earlier. In regard to the loading berths, the City argued, contrary to the plain meaning of
City law, that requirement of three (3) total loading berths was in fact a minimum requirement. Here, the City interpreted
the five (5) legally necessary and required referrals related to Walmarts Class II Special Permit as a maximum and
discretionary requirement.
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2015 and 2016, incidental to Sterns November 9, 2015 enforcement action and subsequent
requests. See generally Exhibits D04a & E-04-07.
72. On March 21, 2016, the City Attorneys Office admitted in Court that two of the necessary
and required referral documents- the initial referrals to and from the Citys Public Works and
Transportation Department- did not exist, despite affirming that they existed for years in prior
proceedings. On the same day, this Court ordered that Garcia turn over his personal emails
relating to the Walmart project. See Exhibit D04a. Two days after the Court order Stern submitted
a request for emails, designated by the City as PRR 16-107, Stern was not charged for production
of these emails. See generally Exhibits E-04-07.
73. The City complied with production of Garcias personal emails (those referencing Walmart)
on April 1, 2016. See Exhibits E-04-07. Stern later made another public records request to obtain
communications between Garcia and other City employees involving Garcias personal email
account. See Exhibit C04. The Citys invoice stated that it would cost $787 for running two (2)
search criteria and one (01) specific key words or phrases, and for creating Outlook PST files with
the output and save them onto a CD/DVD or HD, (depending on the volume). See Exhibit C-04.
It would also take four (4) days to create the storage media after approval of payment. See Exhibit
C-04. There was no estimate as to how many pages the search would produce. See Exhibit C-
04.
74. On April 16, 2016, this Court held that the City and Garcia had unlawfully denied Stern
access to the public records requested on September 09, 2015, and issued judgment in his favor.
See Exhibit D-04a.
75. Since then, Stern has found additional records through internet searches as yet
unproduced by City, that existed and were responsive to Sterns October 24, 2014 -November
21, 2014 requests.
76. Walmarts permit remains active.
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77. Plaintiff- as part of his occupation as a journalist, as a local activist, as a resident of the
City, and as a member of the general public- has made and will continue to make public records
to the City, its employees, and its custodians for records related to permit applications, City
Commission hearings, and other City business.
78. The City continues to employ and pay both Defendant Mendez as its City Attorney, and
Defendant Garcia as its Director of Planning and Zoning, and Defendants Mendez and Garcia
continue to act as custodians to the Citys records.
05 Responsive Records That Remain Unacknowledged or Unproduced
79. The following responsive records have been referenced either by the City and its
employees, in the Citys laws, and/or in available records, and remain unacknowledged or
unproduced:
a. Zoning Interpretation 10-0003 and other zoning interpretations and legal
memorandum;
b. Citys bank deposit statement for Walmarts $225 extension fee;
c. Communications relating to the Walmart project, including emails, text
messages,and voicemails;
d. Unaltered Emails and other communications records between the PZD and City
Attorneys Office including and/or referencing Exhibits B-07-10;
e. Supplemental Questions by PZD to City Attorney regarding the Miami 21 Warrant
process and its relation to Class II Permit Extensions;
f. Emails and communications by and between Garcia, Mendez, Min, and other City
employees acknowledging, referencing, responding to, and complying with
Bojnanskys request related to the Walmart project;
g. PZD request to Walmart that it modify its plans to reflect three loading berths;
h. Transaction Statement for fee to modify Walmarts Class II Special Permit;
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i. Citys bank deposit statement for fee related to Walmarts modified application for
its revised plans;
j. Walmarts request for a fee waiver for fee to modify its Class II Special permit;
k. PZDs approval of a fee waiver for Walmarts modification;
l. Referral of Walmarts revised plans to the Citys Transportation Office;
m. Referral of Walmarts revised plans to the Citys Public Works Department;
n. Documents and communications created, made, and/or received by the Citys
Transportation Office when conducting its expert review of Walmarts revised
plans;
o. Documents and communications created, made, and/or received by the Citys
Public Works Department when conducting its expert review of Walmarts revised
plans;
p. Traffic impact analysis for Walmarts revised plans by the Citys Transportation
Office;
q. Traffic impact analysis for Walmarts revised plans by the Citys Public Works
Department;
r. Recommendation of approval of Walmarts revised plans by the Citys
Transportation office;
s. Recommendation of approval of Walmarts revised plans by the Citys Public
Works Department;
t. Email from Julia D. Hernandez with Attachment link and Attachment (Oct. 15,
2014);
u. Stamped Certified Mail Receipts for November 20, 2014 Notice of Hearing mailing;
v. Return of Service for November 20, 2014 Notice of Hearing mailing;
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w. Unaltered Emails and other communications records between City Manager, the
PZD, Mendez, and other City employees including and/or referencing Exhibit B-
19.
COUNT I
DECLARATORY & INJUNCTIVE RELIEF
PUBLIC RECORDS LAWS
DEFENDANTS CITY, MENDEZ, & GARCIA
80. Plaintiff repeats and realleges Paragraphs 1 through 79 above, and incorporates them by
reference herein.
81. This is an action for declaratory and injunctive relief pursuant to Fla. Stats. 86 et seq.,
Fla. R. Civ. P. 1.610, and Fla. Stats. 119 et seq.
82. Plaintiff seeks an accelerated hearing under Fla. Stat. 119.11(1).
83. This action is brought to afford the Plaintiff relief from the insecurity and uncertainty with
respect to his rights, status, and other equitable and legal relations resulting from the Defendants
refusal and/or delay in providing public records that Defendants knew existed, that were in their
custody at the time they were requested, and that were available within the period they were
requested.
84. The Plaintiff and the Defendants have an actual, present, and adverse interest concerning
the Defendants obligations to properly acknowledge, respond to, locate, and produce in full all
non-exempt public records upon request, and to do so in good faith, without delay, without
omission, without misrepresentation, and without alteration.
85. Public records include all documents, papers, letters, maps, books, tapes, photographs,
films, sound recordings, data processing software, or other material, regardless of the physical
form, characteristics, or means of transmission, made or received pursuant to law or ordinance,
or in connection with the transaction of official business by any agency. Fla. Stat. 119.011(12).
86. An agency is any state, county, district, authority, or municipal officer, department,
division, board, bureau, commission, or other separate unit of government created or established
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by law, and any other public or private agency, person, partnership, corporation, or business entity
acting on behalf of any public agency. Fla. Stat. 119.011(2).
87. All audits, reports, minutes, documents and other public records of the County and
municipalities and their boards, agencies, departments, and authorities shall be open for
inspection at reasonable times and places convenient to the public. Miami-Dade Bill of Rights
(A)(3). Furthermore, no County or municipal official or employee shall knowingly furnish false
information on any public matter, or knowingly omit significant facts when giving requested
information to members of the public. Miami-Dade Bill of Rights (A)(2). Any public official, or
employee who is found to have willfully violated the provisions of the City Charter or Miami-Dade
County Bill of Rights shall forthwith forfeit his or her employment. City Charter 52(C).
88. Some of the types of record series that Plaintiff requested are designated by the Florida
Department of States Division of Library and Information Services current General Record
Schedule (GS1-SL) as having limited retention schedules, including, but not limited to:
a. Administrator Records: Agency Director/Program Manager (GS1-SL, Item #122,
at 1) are retained for ten (10) years, and include various types of records, such as
correspondence (including electronic communications), memoranda, statements
prepared for delivery at meetings, interviews, and reports concerning agency
program development and implementation;
b. Correspondence and Memoranda: Program and Policy Development (GS1-SL,
Item #338, at 11) are retained for five (5) years, and include correspondence and
memoranda documenting policy development, decision-making, or substantive
programmatic issues, procedures, or activities;
c. Directives/Policies/Procedures (GS1-SL, Item #186, at 11) are retained for two
(2) years after being superseded or becoming obsolete, and include official
management statements of policy for the organization, supporting documents, and
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the operating procedures that outline the methods for accomplishing the functions
and activities assigned to the agency. The series may include, but is not limited to,
such materials as employee handbooks, standard operating procedures,
management approval documentation, and correspondence and memoranda
stating the policies and procedures to be followed by employees;
d. Inventory: Agency Records (GS1-SL, Item #319, at 22) are retained until
obsolete, superseded, or administrative value is lost, and include inventory of
agency records providing information such as record series title, inclusive dates,
and quantity, whether records are active, inactive, or closed, whether records are
exempt from public inspection, the format of records (paper, electronic, microform,
etc.), name of custodial agency and official, records retention requirements, and
record locations, including documentation of transmittal of records to an offsite
storage facility;
e. Permits: Building (GS1-SL, Item #286, at 30) are retained for ten (10) years, and
include permits issued by a governing authority for performance of construction
and their supporting documentation;
f. Public Records Exempt Status Notifications and Redaction Requests (GS1-SL,
Item #392) are retained until disposition of records to which notification or request
relates or until request is withdrawn or exemption no longer applies, whichever is
applicable, and consist of general exemptions from inspection or copying of public
records;
g. Receipt/Revenue Records: Detail (GS1-SL, Item #365, at 35) are retained for five
(5) years after the transaction, and consist of records documenting specific
receipts/revenues collected by an agency through cash, checks, electronic fund
transfers (EFT), credit and debit cards, or other methods, and may include, but is
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not limited to, records such as cash collection records and reports, cash receipt
books, cash register tapes, deposit/transfer slips, EFT notices, credit and debit
card records, receipt ledgers, receipt journal transactions and vouchers, refund
records, bad check records, and other accounts receivable and related
documentation;
h. Registration/Permit/License/Certification Records: Required by City or County
Code/Ordinance (Permitting Fee) (GS1-SL, Item #428, at 36-37) are retained for
five (5) fiscal years after denial or expiration of
registration/permit/license/certification or withdrawal/abandonment of application,
and include application files for registrations, permits, licenses or certifications as
required by city or county code/ordinances requiring a permitting fee;
i. Resolutions: Supporting Documents (GS1-SL, Item #143, at 37) are retained for
three (3) years after date of resolution, and consist of documentation used in
formulating resolutions of a governing body, including, but not limited to
correspondence, memoranda, public requests, drafts and working papers, letters
of support from civic and political bodies, and samples of similar resolutions from
other bodies.
89. As stated above, Plaintiff made a valid request to Defendants City, Mendez, and Garcia
to inspect and copy public records in their custody before the November 20, 2014 City
Commission hearing. Defendants were made aware that time was of the essence. All of the
records requested were kept and available in electronic format, and were being circulated among
the Defendants during the period Plaintiff requested them. In addition to copies of the records,
the Plaintiff requested to inspect the records in person.
90. Plaintiff has a clear legal and constitutional right to inspect and receive copies of all public
records to which no statutory exemption applies. Fla. Const. Art. I, 24(a); Fla. Stat.
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119.07(1)(a). Additionally, an agency shall state in writing and with particularity the reasons for
the conclusion that a record is exempt or confidential. Fla. Stat. 119(1)(f).
91. As custodians of public records, the Defendants have a mandatory and non-discretionary
duty to permit the Plaintiff to inspect and copy all public records. Fla. Stat. 119.07(1)(a).
92. The Defendants are required to acknowledge requests to inspect or copy public records
promptly and to respond to such requests in good faith. Fla. Stat. 119.07(1)(c). The only delay
in producing records permitted under Chapter 119 is the limited reasonable time allowed for the
custodian to retrieve the record and delete those portions of the record the custodian asserts are
exempt. Tribune Company v. Cannella, 458 So.2d 1075, 1079 (Fla. 1984).
93. The requested records are not subject to any statutory exemption, and to date, the
Defendants have not properly asserted or cited any statutory exemption in writing as required by
Fla. Stats. 119.07(1)(e)-(f).
94. Plaintiff provided multiple written notices to the Defendants relating to the records requests
between October 24, 2014 and December 04, 2014.
95. The Defendants failed to comply with the Plaintiffs request before the November 20, 2014
City Commission meeting. After the meeting, the still Defendants failed to produce all requested
records. Plaintiff later discovered additional records responsive to the request that remained
unproduced by Defendants for up to and over a year after they were requested, and City
documents reference even more records that remain unacknowledged or unproduced.
96. The impermissible withholding of documents otherwise required to be disclosed
constitutes, in and of itself, irreparable injury to the person making the public records request. See
Daniels v. Bryson, 548 So.2d 679, 680 (Fla. 3d DCA 1989). Failing to produce public records for
inspection and copying in a reasonable amount of time, and impermissibly withholding and
delaying the release of records until after the hearing at which they would be relevant, constitutes
a severe disadvantage to an appellant at a City Commission hearing, especially when the records
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were readily available to the appellees and Defendants. Very few remedies exist to relieve this
irreparable injury.
97. A good faith dispute exists between the Plaintiff and the Defendants regarding the
Plaintiffs right to access public records related to a City Commission hearing at which he was
named an appellant, and the Plaintiff has a justiciable question regarding his rights and status as
a requestor of public records. The records existed at the time they were requested, and the
Defendants, as custodians of the records, knew that they existed. Plaintiff is in doubt regarding
his rights and status to request public records, and in doubt regarding the Defendants obligation
to properly respond to his public records requests in full, in good faith, and without unjustifiable
delay.
98. An actual, present, and practical need for the declaration exists. Plaintiffs records request
related to the Walmart project, and included requests for several records types, some of which
have limited retention schedules. Additionally, Plaintiff is a resident of the City and lives near the
site of the Walmart project for which the permit was issued. Walmarts Class II Special Permit has
not expired. The Plaintiff actively opposes the issuance of the permit, and the manner it was
issued. He continues to advocate against the Walmart project on the news and in social media,
and administers an active social media site documenting the project. Plaintiff- whether as a
resident of the City, as a local advocate, as an appellant to the PZAB and City Commission, and
as part of his occupation as a journalist- has made and expects to make similar requests to the
Defendants regarding zoning department records, records of Citys public meetings, and records
relating to City business, and Defendant employees continue to be employed by the City, and
continue to act as custodians to City records.
99. The Defendants compliance with Floridas Public Records Act is mandatory, and the
burden of compliance, especially in the circumstances described here, is minimal. Nevertheless
the course and conduct of the Defendants demonstrate that the Defendants have treated a
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mandatory constitutional duty as a mere suggestion, and have mustered a dedicated effort to
avoid compliance as required by the law, including making knowing and willing
misrepresentations to the Plaintiff about the existence of public records, refusing to deny the
existence of records or claim exemption to their production, using the requested records to their
procedural advantage while delaying their access to a legally recognized adversary in a quasi-
judicial proceeding, along with other examples of unlawful and unjustifiable denial. The aggressive
prosecution of these constitutional violations by Mendez and Garcia have not only unnecessarily
depleted a considerable amount of public resources to perpetuate, but have exposed the City to
unnecessary liability and potentially costly litigation, in addition to placing public confidence in the
Citys actions at risk, especially those of the department heads named herein, who are
compensated handsomely to perpetuate this misconduct.
100. These violations of Floridas Public Records Act, if not enjoined, will have immediate and
harmful consequences to those very affected City residents, namely those who invest time and
expenses preparing to attend and participate in the Citys public meetings on issues affecting their
immediate community, especially those citizens recognized as appellants to the Citys zoning
decisions.
101. Plaintiff has no other remedy at law.
102. Plaintiff has retained an attorney and is entitled to recover reasonable attorneys fees and
costs incurred in bringing this action.
103. Plaintiff demands a jury trial on all issues so triable.
WHEREFORE, Plaintiff requests that this Court issue an order granting the following relief:
A. Order the Defendants to preserve all evidence related to the Plaintiffs records
requests and the requested documents, including, but not limited to (1) all records,
documents, memoranda, communications, applicable to and relating to the Walmart
project, (2) employment and personnel records of all City personnel that came into contact
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with the records identified here and elsewhere in this Complaint, the (3) Citys systems
administration logs, access logs, deletion logs, and sunset logs for each record type and
for each location where the records are maintained;
B. Order the Defendants to preserve all records referenced in this Complaint in their
unaltered form and all modified forms, and in their present and/or customary location,
including an instruction that they are not to be transferred, altered or destroyed;
C. Order that all relevant records and record types referenced in this Complaint, be
produced for in-camera inspection with the Court;
D. Order Defendants to produce all remaining responsive records, or show cause as
to why they are exempt;
E. Order Defendants to provide Plaintiff direct access to all the requested records;
F. Declare that Defendants must promptly admit and/or deny in writing the existence
of the requested records and where they are located;
G. Declare that the Defendants failed to comply with their constitutional, statutory, and
municipal duties to properly respond to and produce public records requested by the
Plaintiff, including a finding that:
a. Defendants delay was unreasonable and unlawful; and/or
b. Defendants knowingly delayed and/or withheld production of all existing records,
and knowingly refused to affirm and/or deny existence of requested records; and/or
c. Defendants willfully delayed and/or withheld production of all existing records.
H. Declare that Respondents refusal to produce the records Stern requested before
the City Commission hearing caused him irreparable harm;
I. Enjoin Mendez from representing the City and/or Garcia in this action;
J. Enjoin Mendez and Garcia from actively participating in all matters concerning the
Walmart project for the complete duration of this action;
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K. Enjoin Mendez and Garcia from actively participating in and/or directing City
employees in all matters concerning the Walmart project, and/or this action, for the
complete duration of this action;
L. Enjoin Mendez and Garcia from accessing, modifying, and/or deleting all records
related to this action;
M. Permanently enjoin Defendants from any further unlawful denials and/or
misrepresentations- constructive or otherwise, related to Plaintiffs rights to inspect and
copy requested public records, including, but not limited to denying access by charging
the Plaintiff arbitrary, unreasonable, and/or inconsistent fees for the records requested;
N. Permanently enjoin Defendants Mendez and Garcia from serving as custodians of
public records in Miami-Dade County;
O. Permanently enjoin Defendants Mendez and Garcia from continuing their
employment with the City or any public agency in Miami-Dade County;
P. Award attorneys fees and costs; and
Q. Any other such relief available by Florida law County and/or City ordinance that
may be just and proper.
COUNT II
FLORIDA PUBLIC MEETINGS LAWS
DEFENDANTS CITY, MENDEZ, & GARCIA
104. Plaintiff repeats and realleges Paragraphs 1 through 79 above, and incorporates them by
reference herein.
Fla. R. Civ. P. 1.610, Fla. Const. Art. I 24(a), and Fla. Stat. 286.011.
106. This action is brought to afford the Plaintiff relief from the insecurity and uncertainty with
respect to his rights, status, and other equitable and legal relations resulting from the Defendants
refusal and/or delay in providing the Plaintiff with public records related to the Walmart project,
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some of which would be specifically adopted by the City Commission at a quasi-judicial public
hearing in which the Plaintiff was to attend as a named appellant.
107. All meetings of any board or commission of a municipal corporation, or political subdivision
at which official acts are to be taken are declared to be public meetings open to the public at all
times, and no resolution, rule, or formal action shall be considered binding except as taken at
such meeting. Fla. Stat. 286.011.
108. Floridas Sunshine Law should be construed broadly enough as to frustrate all evasive
devices, and to effect its remedial and protective purpose of protecting the public from closed
door politics. See Brown v. Denton, 152 So.3d 8 (Fla. 1st DCA 2014); see also Pinellas County
School Board v. Suncam, Inc., 829 So.2d 989 (Dla. 2d DCA 2002).
109. The application of Floridas Sunshine Law does not depend on a defendants intentions,
sincerity of purpose, or noble motives. See National Council on Compensation Insurance v. Fee,
2017 WL 1908370 (Fla. 1st DCA 2017).
110. Every person has the right to inspect or copy any public record made or received in relation
to the official business of any public body, officer, or employee of the state, counties,
municipalities, and districts. Fla. Const. Art. I 24(a). Accordingly, records relating to the Citys
public meetings must be available for public inspection and copying by any person, and every
custodian of a public record must permit inspection and copying in a timely manner, under
reasonable conditions, and subject to supervision. See Grapski v. City of Alachua, 31 So.3d 193,
197 (Fla. 1st DCA 2010).
111. Persons entitled to notice of a County or municipal hearing shall be timely informed as to
the time, place, and nature of the hearing and the legal authority pursuant to which the hearing is
to be held. Copies of proposed ordinances or resolutions shall be made at a reasonable time prior
to the hearing. Miami-Dade Bill of Rights (A)(6).
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112. No County or municipal officer or employee shall knowingly furnish false information on
any public matter, nor knowingly omit significant facts when giving requested information to
members of the public. Miami-Dade Bill of Rights (A)(2). Any public official, or employee who is
found to have willfully violated the provisions of the City Charter or Miami-Dade County Bill of
Rights shall forthwith forfeit his or her employment. City Charter 52(C).
113. A good faith dispute exists between the Plaintiff and the Defendants regarding the
Plaintiffs rights relating to quasi-judicial hearings before the City Commission in which he is
named as an appellant, and the Plaintiff has a justiciable question regarding his status as a
resident and citizen of the City and the scope of his right to appeal PZD decisions before the City
Commission. The Plaintiff is in doubt that the Defendants are respecting and honoring his rights
to be properly informed of, access public records related to, prepare for, attend, and participate
as an appellant at quasi-judicial City Commission hearings.
114. The Defendants, particularly Mendez and Garcia- whose position at the quasi-judicial
hearing was adverse to the Plaintiff and other appellants- misrepresented critical information on
and denied them access to the public records it would present at and have the City Commission
adopt at the hearing- while openly exchanging the information and records with Walmart and
other City employees.
115. As an appellant, Sterns interest in the proceeding were affected in a manner greater than
those of the general public. Stern is a resident and citizen of the City, and had participated in the
initial appeal to both the PZAB and City Commission, for which he paid application fees, retained
an attorney, and hired an expert. Stern was recognized as an appellant by the City Commission,
and being recognized as such, had the right to call and examine witnesses, introduce exhibits,
cross-examine opposing witnesses on any relevant matter, and to rebut evidence.
116. An actual, present, and practical need for the declaration exist. Plaintiff is a resident of the
City and lives near the site of the Walmart project for which the permit was issued. Walmarts
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Class II Special Permit has not expired. The Plaintiff actively opposes the issuance of the permit
and the manner by which it was issued. He continues to advocate against the Walmart project on
the news and through social media, and administers an active social media site documenting the
project. Plaintiff- whether as a resident of the City, as a local advocate, as an appellant to the
PZAB and City Commission, and as part of his occupation as a journalist- has attended and
participated, and expects to continue attending and participating in City Commission hearings,
and in connection thereto, expects to continue making similar public records requests to the City,
the City Attorney, and the PZD relating to City business. The Defendants continue to be employed
by the City, and organize, participate in, and preside over its public meetings.
117. Defendants violated both the language and purpose of Fla. Stat. 286.011(2) by denying
Stern access to its meeting records until after the records would have been useful to him. These
records included, among other relevant records, a certified copy of the November 21, 2013 City
Commission hearing, which were certified on November 05, 2014 to be adopted at the November
20, 2014 City Commission hearing, along with denial of the proposed ordinances or resolutions,
which were also certified on November 05, 2014, and access to Walmarts full architectural plans
(the item to be heard). Defendants also refused to provide the appellants to all of the five (5)
necessary and required referrals which they claimed existed at the time (and used as basis for
issuing the contested final approval), and which were an essential prerequisite to initial approval
of the permit at issue. Also, the Plaintiff requested in person inspection multiple times, which the
City never arranged direct access for at either reasonable time or place, in direct contravention to
the requirements afforded to an appellant at a quasi-judicial.
118. As an appellant, Stern was caused irreparable harm by being denied access to relevant
records and information that was being circulated exclusively between the Defendants and
Walmart.
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119. The Defendants compliance with Floridas Sunshine Act is mandatory, and the burden of
compliance, especially in the circumstances described here, is minimal. Nevertheless the course
and conduct of the Defendants demonstrate that the Defendants have treated a mandatory
constitutional duty as a suggestion, and have made a dedicated effort available to avoid
compliance as required by the law- in making knowing misrepresentations to the Plaintiff about
the existence of public records and critical information related to a quasi-judicial proceeding-
including the minutes and resolutions they intend to present to the City for adoption- in which
Plaintiff is a named appellant. The execution of these constitutional violations by Mendez and
Garcia have not only depleted a considerable amount of public resources to perpetuate, but have
exposed the City to unnecessary liability and potentially costly litigation. These acts have also
placed public confidence of the Citys public meetings and related procedural rights at risk
especially those of the department heads named herein, who are, in essence, being compensated
handsomely for their attempts to eclipse the sunshine demanded by Floridas constitution.
120. These violations of Floridas Public Meetings Act, if not enjoined, will have immediate and
harmful consequences to those very affected City residents, namely those who have the right to
and invest time and expenses preparing to attend and participate at the Citys public meetings on
issues affecting their immediate community, especially those citizens recognized as appellants to
the Citys zoning decisions.
121. A mere showing that the government has violated the sunshine law constitutes an
irreparable public injury. Town of Palm Beach v. Gradison, 296 So.2d 473, 477 (Fla. 1974). Even
an unintended violation of the public meeting law will negate an action taken by the City
Commission. Id. at 477-78.
122. Plaintiff has no other remedy at law.
123. Plaintiff is entitled to recover reasonable attorneys fees and costs incurred in bringing this
action.
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124. Plaintiff demands a jury trial on all issues so triable.
A. Order the Defendants to preserve all evidence related to the Plaintiffs records
requests and the requested documents, including, but not limited to (1) all records,
documents, memoranda, communications, applicable to and relating to the Walmart
project, (2) employment and personnel records of all City personnel that came into contact
with the records identified here and elsewhere in this Complaint, the (3) Citys systems
administration logs, access logs, deletion logs, and sunset logs for each record type and
for each location where the records are maintained;
B. Order the Defendants to preserve all records referenced in this Complaint in their
unaltered form and all modified forms, and in their present and/or customary location,
including an instruction that they are not to be transferred, altered, or destroyed;
C. Declare the Plaintiff, as a named appellant to the Citys quasi-judicial hearing, has
interests who are adversely affected in a manner greater than the general public;
D. Declare that Respondents refusal to produce the records Plaintiff requested
before and pertaining to the City Commission hearing caused him irreparable harm;
E. Declare that the Defendants willfully delayed and/or withheld production of all
existing records, knowing that the request related to quasi-judicial hearing for which they
were requested;
F. Declare that the Defendants knowingly furnished the Plaintiff with false information
on the Walmart project and/or omitted significant facts when requested by the Plaintiff;
G. Declare that Defendants denied Plaintiff his right to be informed, without
misrepresentation, of the nature of the quasi-judicial hearing before the City Commission,
and the legal authority pursuant to which the meeting was held;
H. Declare that Defendants caused Plaintiff irreparable harm;
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I. Declare that all formal actions relating to the Walmart project taken at the
November 20, 2014 City Commission hearing are null and void ab initio;
J. Enjoin Mendez from representing the City and/or Garcia in this action;
K. Enjoin Mendez and Garcia from actively participating in all matters concerning the
L. Enjoin Mendez and Garcia from actively participating in and/or directing City
M. Enjoin Mendez and Garcia from accessing, modifying, and/or deleting all records
related to this action;
N. Permanently enjoin Defendants Mendez and Garcia from preparing for,
organizing, or participating at the Citys public meetings on behalf of the City, and/or
representing the City at the Citys public meetings;
O. Permanently enjoin Defendants Mendez and Garcia from continuing their
employment with the City and/or any public agency in Miami-Dade County;
P. Order Defendants to reimburse Plaintiff all costs and fees associated with his
appeal to the City Commission;
Q. Award attorneys fees and costs; and
R. Any other such relief available by Florida law, County and/or City ordinance that
COUNT III
COUNTY BILL OF RIGHTS & CITY CHARTER
DEFENDANTS MENDEZ, & GARCIA
125. Plaintiff repeats and realleges Paragraphs 1 through 124 above, and incorporates them
by reference herein.
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Page 35 of 38
Fla. R. Civ. P. 1.610, the Miami-Dade Bill of Rights (A)(2)-(3), (A)(6), (C), & (D), and City Code
52(A)-(D).
127. All audits, reports, minutes, documents and other public records of the County and
municipalities and their boards, agencies, departments, and authorities shall be open for
inspection at reasonable times and places convenient to the public. Miami-Dade Bill of Rights
(A)(3).
128. No County or municipal official or employee shall knowingly furnish false information on
any public matter, or knowingly omit significant facts when giving requested information to
members of the public. Miami-Dade Bill of Rights (A)(2).
129. Any public official, or employee who is found to have willfully violated the provisions of the
City Charter or Miami-Dade County Bill of Rights shall forthwith forfeit his or her employment. City
Charter 52(C).
130. Persons entitled to notice of a municipal hearing shall be timely informed as to the time,
place, and nature of the hearing, and the legal authority pursuant to which the hearing is to be
held. Miami-Dade Bill of Rights (A)(6).
A. Declare that the Defendants knowingly delayed and/or withheld production of all
existing public records requested by the Plaintiff;
B. Declare that Defendants knowingly furnished false information regarding the City
Commission hearing to Plaintiff, and/or knowingly omitted significant facts requested by
the Plaintiff;
C. Declare that the Defendants knowingly furnished the Plaintiff with false information
on the Walmart project and/or omitted significant facts when requested by the Plaintiff;
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Page 36 of 38
D. Order Defendants to reimburse Plaintiff all costs and fees associated with his
appeal to the City Commission;
E. Enjoin Mendez from representing the City and/or Garcia in this action;
F. Enjoin Mendez and Garcia from actively participating in all matters concerning the
G. Enjoin Mendez and Garcia from actively participating in and/or directing City
H. Enjoin Defendants from denying Plaintiffs rights to inspect and copy public records
when requested for production in regards and prior to the Citys public hearings;
I. Permanently enjoin Defendants Mendez and Garcia from organizing, participating
in, or representing the City in the Citys public meetings;
J. Permanently enjoin Defendants Mendez and Garcia from continuing their
employment with the City or any public agency in Miami-Dade County;
K. Award costs; and
L. Any other such relief available by Florida law, County and/or City ordinance that
DATED: September 27, 2017
Respectfully Submitted,
/s/ Christopher A. Fleites

Christopher Andrew Fleites
FLBN 118197
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2103 Coral Way, STE 202
Miami, FL 33145
chris@plainviewlawfirm.com
t.305.632.4002
f.786.204.0802
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Page 37 of 38
VERIFICATION OF TRUTH
Under penalty of perjury, I declare that I have read the foregoing Complaint and that- to
the best of my knowledge and belief- the facts stated in it are true.
BY /s/ Grant Stern______

GRANT STERN, PLAINTIFF
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Page 38 of 38

Stern vs. City of Miami II - Public Records Action

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Stern vs. City of Miami II - Public Records Action

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IN THE CIRCUIT COURT OF THE

ELEVENTH JUDICIAL CIRCUIT IN

CITY OF MIAMI, a municipal corporation

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

(A)(2), and Miami, Fla. Code of Ordinances 52(C).

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4. Venue is proper pursuant to Fla. Stat. 47.011.

5. This Complaint references the Plaintiffs Records Requests, City documents,

this Complaint are itemized and attached as Exhibit E.

7. Defendant City of Miami (City) is a municipal corporation located in Miami-Dade County,

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written document listing the permits non-conformities with City law.

Judicial procedures outlined in Miami 21 7.1.4.

for the City Commissions review. See Exhibit B-04.

evidence offered by the appellants.

Walmarts permit should be denied. See Exhibit B-17.

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reason to why access could not be granted.

Ordinance 11000 1311.

the request. See Exhibit B-07a.

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under Miami 21 7.1.3.5.d.4(a). See Exhibit B-08.

21, 2015. Exhibit B-10.

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838, 843 (Fla. 2001)).

436 So.2d 93, 95 (Fla. 1983)1.

email. See Exhibit C-01.

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02 Sterns Records Requests and Related Matters

See generally Exhibit A.

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Commissions November 20, 2014 hearing:

a. Notice of the City Commissions hearing on Walmarts application;

b. Traffic Study related to Walmarts application;

c. Revisions to Walmarts application and plans;

d. Applications submitted to City by Walmart, including additional applications and

e. All information about the upcoming City Commission vote;

f. Legal opinions written by City officials relating to processing Walmarts application;

terms Walmart, Walmart Midtown, and @Walmart.com, along with other

personal email accounts;

i. Records, including City ordinances, relating to the City Commissions hearing;

emails, voicemails, pertaining to all requested items;

location where the records are kept;

See generally Exhibit A.

request periodically, and Mendez acknowledged. Exhibit A at 3-8.

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were no responsive documents. See Exhibit C-02c.

the same day by the Citys Office of Communication. Exhibit A at 15-16.

See Exhibits B-11-12.

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would nevertheless be approved. See Exhibit B-18a.

Exhibits B-14 & B-15.

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date) on November 13, 2014. See Exhibit B-13.

the upcoming November 20, 2014 public meeting. Exhibit C-03.

substantial evidence as a designated appellant at the hearing.

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documents have been provided. Exhibit A at 25.

still pending. Exhibit A at 26.

56. The documents available in Legistar after the meeting included:

c. November 05, 2014 Certification of City Commissions November 29, 2013

d. November 05, 2014 Certification of November 21, 2013 Meeting Minutes;