IN THE THIRD DISTRICT COURT OF APPEAL

STATE OF FLORIDA
Case No. 3D15-2208
______________________________________________________
On Second-Tier Petition for Writ of Certiorari from the Circuit Court
Appellate Divisions Per Curiam Denial of Petitioners First-Tier
Petition for Writ of Certiorari
(Case No. 14-492 AP)
______________________________________________________
JACOB PFEFFER, et al.,
Petitioners,
v.
CITY OF MIAMI, FLORIDA and WAL-MART STORES EAST, LP,
Respondents.
WAL-MART STORES EAST, LPS
RESPONSE TO PETITION FOR A WRIT OF CERTIORARI

Joan Carlos Wizel

Mark A. Emanuele
Richard Lydecker
Manuel A. Diaz
LYDECKERDIAZ
1221 Brickell Avenue, 19th Floor
Miami, Florida 33131
(305) 416-3180
Counsel for Respondent
Wal-Mart Stores East, LP
OCTOBER 19, 2015

Respondent, Wal-Mart Stores East, LP (Wal-Mart), responds to the

Petition for Writ of Certiorari (the Petition) filed by petitioners Jacob Pfeffer,
Catalina Gutierrez, Monika Pobog-Malinowska, Vintage Liquor and Wine Bar II,
Rosi Barrios, Blo Dry Bar Florida, LLC n/k/a Head Kandi, LLC, Sandirose
Madger, Yasmine Garate, Anthony Davide, David Le Batard, and Lebo Studios
(collectively Petitioners), as follows.
INTRODUCTION
Petitioners are opponents to the construction of a Wal-Mart store in
Midtown (the Project), even though this location is specifically zoned for a big
box retail facility. For several years now, in multiple community meetings, public
hearings, and court proceedings, Petitioners have objected to a myriad of aspects of
the Project in an effort to halt the issuance of a Class II Special Permit (the
Permit) to allow Wal-Mart to build the Project. The case has been once before
the City of Miamis Planning and Zoning Appeals Board (PZAB), twice before
the City of Miami Commission (the Commission), twice before the Circuit Court
Appellate Division (the Circuit Court), and is now hopelessly before this Court.
PZAB and the Commission rejected all of Petitioners multiple objections to
the Project. And the Circuit Court, in an opinion issued on October 15, 2014, in
Pfeffer v. City of Miami, et al., case number 14-004 AP (Pfeffer 1), similarly
rejected all but one of the objections raised by Petitioners on a very narrow,

limited, andfor purposes of this Courts reviewinsignificant issue: that the

City of Miami (the City) was incorrect in relying on its long-standing
interpretation of its zoning code to permit the Project to have five interior loading
berths instead of requiring the number of interior loading berths to be exactly three.
That decision was not appealed and is the law of this case. The City and Wal-Mart
accepted the circuit courts ruling, and Wal-Mart conformed its Permit application
to meet Pfeffer 1s holding by reducing the interior loading berths from five to
threegiving Petitioners what they wanted: a Permit application that was fully
compliant with the City Code.
Then, on remand from Pfeffer 1, the Commission considered Petitioners
appeal in light of Pfeffer 1, and, based on its de novo review of the single issue
before it, and with the recommendation of the Planning Director, (on a unanimous
vote) it issued Resolution number 13-01030iia on November 20, 2014, affirming
the decision of PZAB to deny the appeal of the Permit and issuing Final Approval
for the Permit with only three loading berths.
Somehow not satisfied, Petitioners filed a second petition for writ of
certiorari to the Circuit Court, presenting a baseless argument (for which they
presented no legal or statutory authority) that the Commission had no jurisdiction
to entertain the Permit application on remand and was required to force Wal-Mart
to either submit an entirely new application for a Class II Special Permit and start

the (now over three-year long) process from scratch or submit an application for a
Major Use Special Permit (MUSP) requesting a variance for the five loading
berths that Wal-Mart did not want or seek. At oral argument, Petitioners counsel
(at the time) conceded that the Permit application was compliant with the City
Code requirements and could not articulate any prejudice that would be suffered by
Petitioners even if the court ignored Petitioners incorrect legal argument. Two
business days after the oral argument, the Circuit Court issued a per curiam denial
of the petition.
Now, Petitioners seek to misguide this Court into exercising discretionary
jurisdiction. Realizing that the position advanced in the Circuit Court on first-tier
certiorari review below was baselessand that on second-tier certiorari review it
will meet the identical fate that it did before the Circuit CourtPetitioners, now
represented by new counsel, have decided to abandon the position held in the
Circuit Court and improperly present arguments about the proceedings in the
Commission never before raised. The law in Florida is clear that this is wholly
impermissible. Thus, the petition filed here is frivolous. Petitioners doomed
request should be rejected, and this Court should deny the petition, exercising
jurisdiction only to award sanctions and costs against Petitioners and their new
counsel for their unreasonable and vexatious multiplication of the proceedings with
the misguided hope that entangling the Project in this baseless proceeding would

cause the Permit to expire and force Wal-Mart to start a new application process
from scratch.1
STATEMENT OF THE ISSUE PRESENTED
Whether Petitioners can show that the Circuit Courtwhich issued a per
curiam denial of Petitioners petition for writ of certiorarideparted from the
essential requirements of the law by applying the incorrect law on points never
presented to the Circuit Court but now raised for the first time in this Court.
STATEMENT OF THE CASE AND FACTS 2
Over three years ago, on August 21, 2012, Wal-Mart submitted its
application to the Department of Planning and Zoning for the Permit to allow
construction of the Project in the property located at 3055 North Miami Avenue.
See Pfeffer 1, R.App. B at 2. This location is zoned for a big box retail facility as

In the crowdfunding campaign webpage Fight Walmart in Midtown

Miami, created by Petitioner Jacob Pfeffer and Grant Stern to help fund the
continued litigation against the City and Wal-Mart in this Court, the main message
is that Walmarts Permit Expires on November 21st, 2015, But We Need You To
Donate Now For Legal Fees! See R.App. D, available at
https://www.indiegogo.com/projects/fight-walmart-in-midtown-miami#/story.
Evidently, Petitioners are unaware that their motives are misguided and their
efforts futile given that the Permit has been extended until November 21, 2017.
R.App. M.
2

For the convenience of the Court, Wal-Mart will, to the extent practicable,
use the Appendix provided by Petitioners; Petitioners Appendix will be cited as
App. __ at p. __, denoting the Tab and page number. Wal-Marts (supplemental)
Appendix filed concurrently with this Response will be similarly cited as R.App.
__ at p. __, denoting the Tab and page number.
4

Midtown Miami West under the City of Miami Zoning Code. See id.; see also
Section 627.2.4, City of Miami Zoning Code (Miami 21). Almost a year later, on
August 12, 2013after making referrals to the Urban Development Review
Board, the Neighborhood Enhancement Team Office, the Department of Public
Works,

and

the Office of Transportation,

and after holding multiple

community/neighborhood meetingsthe Planning Director (the Director)

approved the Permit. Pfeffer 1, R.App. B at 1-3.
Petitioners then appealed the Directors decision to the PZAB on August 27,
2013. App. 6; Pfeffer 1, R.App. B at 2. After a public hearing was held before the
PZAB on October 2, 2013, the PZAB denied the appeal of the Permit. Pfeffer 1,
R.App. B at 2. Petitioners then appealed the PZABs decision to the Commission
on October 17, 2013. App. 7; Pfeffer 1, R.App. B at 2-3. After holding a de novo,
quasi-judicial public hearing on November 21, 2013, the Commission unanimously
denied the appeal and approved the Permit. Pfeffer 1, App. B at 3. A resolution
reflecting the Commissions decision was issued on December 2, 2013. R.App. E
at 1-2.
On January 2, 2014, Petitioners filed a Petition for Writ of Certiorari in the
Circuit Court, challenging the resolution of the Commission. After full briefing,
oral argument, and supplemental briefing, the Circuit Court rejected six (6) of the

seven arguments Petitioners presented in challenging the Permit. 3 The Circuit

Court, however, agreed with one (1) of their narrow arguments: that the
Commission deviated from the essential requirements of the law by approving a
permit that, pursuant to the Citys long-standing interpretation of Section 627.2.15
of the Code, allowed the Project to contain five (5) loading berths instead of three
(3). Pfeffer 1, R.App. B at 8-10. The Circuit Court held that Section 627.2.15 could
not be interpreted, as the City had done for years, to establish a minimum
requirement of loading berths, but instead required a definite number of three (3)
3

Specifically, the circuit court held in favor of the City and Wal-Mart that:

(1)

the Director was not bound by the UDRB and NET Office
recommendations, and he did consider those recommendations and his final
decision was affected and limited by those reports (Pfeffer 1, R.App. B at 45);

(2)

the requirements of Section 1305 applied to the Commissions review on

appeal, but the written findings of the Commission were sufficient to satisfy
Section 1305 as a matter of law (Pfeffer 1, R.App. B at 6-7);

(3)

since the Commission made its own findings and determination, Petitioners
challenge to the Directors findings was moot (Pfeffer 1, R.App. B at 5, n.3);

(4)

there was sufficient evidence in the record to support the Commissions

decision that the Project met the building continuity requirements based on
the experts interpretation that continuous in design refers to architectural
elements, not style (Pfeffer 1, R.App. B at 8-9);

(5)

there was sufficient evidence in the record to support the Commissions

decision that the Project met the requirements for active pedestrian usage
frontage (Pfeffer 1, R.App. B at 8-9); and

(6)

there was sufficient evidence in the record to support the Commissions

decision that the Project met the requirements for liner uses and setbacks
based on the expert testimony finding that parking spaces were setback 85
feet (Pfeffer 1, R.App. B at 8-9).
6

loading berths. Id. Thus, the Circuit Court quashed the Commissions Resolution
and remanded the case to the Commission for further proceedings consistent with
that ruling. Pfeffer 1, R.App. B at 10; see also R.App. C (Mandate issued on
October 31, 2014) at 1.
Heeding to the circuit courts decision, in anticipation of appearing before
the Commission on remand from the Circuit Court, Wal-Mart and the Citys
Department of Planning and Zoning agreed to conform the plans for the Project to
provide only for three (instead of five) loading berths, consistent with the courts
interpretation of Section 627.2.5.
A de novo, quasi-judicial public hearing was then held on remand before the
Commission on November 20, 2014. R.App. F (Tr. of Nov. 20, 2014 Commission
Hearing). At the hearing, the Director testified about the conformed Project as
follows:
I am under the impression that we have been directed by
the court to correct an error that was made in the Class II
Special Permit, which my department issued and which I
signed.
So I understand my choices to be very limited today as
your Planning and Zoning Director. And my choices are
basically only to bring back to you a project that has a
total of three loading berths, because the Court decided
that total is to be interpreted as meaning no more than, no
less than three loading berths. And this is, in fact, what
the applicants, the original applicants, have done.
They have presented to us, and you will find in your
packets, documents that show that where there were once
7

five loading berths, there are now three loading berths.

And, of course, because we have to do our due diligence,
we had to make sure that those three loading berths that
the document show are functional, which is why you will
see in some of the drawings there are maneuvering
diagrams.
So there are three functional loading berths presently in
this particular establishment. By doing so, we believe
that we have complied with the courts order. And we
submit to you then that the revised set of documents, and
the analysis and findings that are attached to those
documents are worthy of your approval and corrective of
the defect found by the courts.
R.App. F at 7:128:21. He assured:
The modifications made to the plans render the three
remaining loading berths fully functional. There are
maneuvering studies that prove that.
In addition to that, we find that the three loading berths,
as provided, comply with what we understand this to be
the -- we understand to be the courts mandate, to
interpret the code to mean that, at most, and at least three
loading berths shall be provided. So we are here to verify
that three loading berths, fully compliant with the
appropriate sizes and dimensions provided by the zoning
ordinance, have indeed been provided. Plans attached to
show that is the case.
R.App. F at 28:117. The Director concluded,
I think it is important, and perhaps appropriate, to
hopefully clarify something that may be confusing. And
it is this.
I, as your Planning and Zoning Director, stand corrected
by the court. I want to assure this Commission that the
mistake made by your Planning and Zoning Department
is not to have overlooked a variance. That is a rather

significant issue. And Im here to tell you that has never

happened and it will never happen, at least under my
watch. Im positive of that.
The reason we stand corrected is, because this court has
found that a longstanding interpretation of the code,
which says that the language in Section 627.2.15 OffStreet Loading, which says for nonresidential floor area
up to 250,000 square feet, 3 berths total.
Im humbled. I, my predecessors, had always opined that
that meant three was a minimum, and we could certainly
exceed it. It turns out, as the court says, that the plain
meaning of the word total makes it so that it cannot be
interpreted reasonably as being more than three. We
stand corrected. Were humbled by it.
Im here to tell you, though, and this is the important
thing, that had this been correctly interpreted to mean
that only three loading berths were required, you would
have had before you, one year ago, exactly the project
that you are affirming today.
R.App. F at 82:1583:25.
Petitioners did not present any argument to challenge the plans conformed to
provide for only three loading berths. R.App. F. The only issue Petitioners raised at
the hearing was the authority of the Commission to approve the Permit based on
the Project that was conformed to provide the three loading berths they themselves
had previously requested. R.App. F. Petitioners claimed that, even though the
Project now conformed to the three loading berths requirement in alignment with
Pfeffer 1, on remand the Commission was required to force Wal-Mart to either
submit an entirely new application for a Class II Special Permit and start the

process from scratch or submit an application for a MUSP requesting a variance

for the two additional loading berths that Wal-Mart did not want. R.App. F. The
Commission carefully considered and rejected Petitioners position, and, relying on
Pfeffer 1, voted unanimously to affirm the decision of the PZAB to deny the appeal
and to issue final approval (Final Approval) of the Permit with only three
loading berths. R.App. F at 85; App. 9.
On December 16, 2014, Petitioners filed a second petition for writ of
certiorari in the Circuit Court, seeking first-tier certiorari review of the
Commissions resolution and presenting the same and only argument they made to
the Commission: that on remand from Pfeffer 1, the Commission was required to
force Wal-Mart to either submit an entirely new application for a Class II Special
Permit and start the entire process from scratch or submit an application for a
MUSP requesting a variance for the two additional loading berths that Wal-Mart
did not want. See R.App. G; R.App. H; R.App. K. The parties fully briefed the
issues and presented oral argument before a three-judge panel that was intimately
familiar with the casetwo of the three judges on the panel were on the panel of
judges that decided Pfeffer 1. See id.; see also R.App. I; R.App. J; R.App. L. At
oral argument, Petitioners counsel conceded that the Permit application approved
by the Commission was fully compliant with the City Code requirements and
could not articulate any prejudice that would be suffered by Petitioners even if the

10

court ignored their incorrect legal argument. On August 24, 2015, two business
days after the oral argument, the Circuit Court issued a per curiam denial of the
Petitioners petition. R.App. A.
Petitioners then filed this petition for second-tier certiorari review on
September 24, 2015.
STANDARD OF REVIEW
The standard of review on second-tier certiorari review is well settled:
The scope of certiorari review is very limited, as second-tier certiorari
review is not to be merely a second appeal. Pharmcore, Inc. v. City of
Hallandale Beach, 946 So. 2d 550, 552 (Fla. 4th DCA 2006). In
second-tier certiorari review, a district court of appeal determines only
whether [1] the circuit court afforded procedural due process and [2]
applied the correct law. City of Deerfield Beach v. Vaillant, 419 So.2d
624, 626 (Fla. 1982). Applying the correct law incorrectly does not
warrant certiorari review. See Ivey v. Allstate Ins. Co., 774 So. 2d 679
(Fla. 2000). [T]he departure from the essential requirements of the
law necessary for the issuance of a writ of certiorari is something
more than a simple legal error. Id. at 682. District courts of appeal
should exercise the discretion to grant certiorari only when there has
been a violation of a clearly established principle of law resulting in a
miscarriage of justice. Combs v. State, 436 So. 2d 93, 96 (Fla. 1983).
Stranahan House, Inc. v. City of Fort Lauderdale, 967 So. 2d 1121, 1125 (Fla. 4th
DCA 2007).4

See also Seminole Entmt, Inc. v. City of Casselberry, Florida, 813 So. 2d
186, 188 (Fla. 5th DCA 2002); Martin Cnty. v. City of Stuart, 736 So. 2d 1264,
1267 (Fla. 4th DCA 1999). Cf. Custer Med. Ctr. v. United Auto. Ins. Co., 62 So. 3d
1086 (Fla. 2010) (A reviewing court on appeal may correct any and all errors
below, whether jurisdictional, procedural, or substantive, and may modify, reverse,
11

To find that the Circuit Court did not adhere to the essential requirements of
law, this Court must find that there is an inherent illegality or irregularity, an
abuse of judicial power, an act of judicial tyranny perpetrated with disregard of
procedural requirements, [which] result[ed] in a gross miscarriage of justice.
Jones v. State, 477 So. 2d 566, 569 (Fla. 1985). See City of Tampa v. City Nat.
Bank of Florida, 974 So. 2d 408, 410-11 (Fla. 2d DCA 2007) (noting that
evaluation of an alleged departure from the essential requirements of law requires
consideration not only of whether a legal error has occurred but also of whether the
error is so serious as to constitute a violation of a clearly established principle of
law resulting in a miscarriage of justice.) (quotation omitted); Broward Cnty. v.
G.B.V. Intl, Ltd., 787 So. 2d 838 (Fla. 2001) (The role of the reviewing court on
a writ of certiorari is to halt the miscarriage of justice, nothing more.). 5
Therefore, as a practical matter, the circuit courts final ruling in most first-tier
cases is conclusive because second-tier review is so extraordinarily limited.
Miami-Dade Cnty. v. Omnipoint Holdings, Inc., 863 So. 2d 195, 199 (Fla. 2003)
(citing Florida Power & Light Co. v. City of Dania, 761 So. 2d 1089, 1092 (Fla.
or remand a judgment; in contrast, a district court cannot correct just any error that
may have occurred below through a second-tier certiorari proceeding).
5

See also Miami-Dade County v. Omnipoint Holdings, Inc., 863 So. 2d 195,
199 (Fla. 2003) (explaining that a ruling constitutes a departure from the essential
requirements of law when it amounts to a violation of a clearly established
principle of law resulting in a miscarriage of justice) (citation and quotation
omitted); Haines City Cmty. Dev. v. Heggs, 658 So. 2d 523, 530 (Fla. 1995)
(same).
12

2000)); see also City of Tampa v. City Nat. Bank of Fla., 974 So. 2d 408 (Fla. 2d
DCA 2007) (same).
ARGUMENT
The Court should summarily deny this petition, as all of the arguments
presented by Petitioners in the petition, except a portion of the first argument (at
pages 35-36), present new objections to the Commissions actions being raised for
the first time on second-tier certiorari review in this Court. And the only issue
actually presented to the Circuit Court below is frivolous.
It is a well-established principle of appellate law that, as a general rule, a
reviewing court will not consider claims of error that are raised for the first time on
appeal. Castor v. State, 365 So. 2d 701, 703 (Fla. 1978) (citing Dorminey v. State,
314 So. 2d 134 (Fla. 1975)); Saka v. Saka, 831 So. 2d 709 (Fla. 3d DCA 2002). As
Florida courts have explained, [i]t is the function of the appellate court to review
errors allegedly committed by the [lower] court, not to entertain for the first time
on appeal issues which the complaining party could have and should have, but did
not, present to the [lower] court. Hernandez v. Kissimmee Police Dept., 901
So.2d 420 (Fla. 5th DCA 2005) (citing Saka).6 This principle undeniably applies

Sunset Harbor Condo. Assn v. Robbins, 914 So. 2d 925, 928 (Fla. 2005)
(citing Dade County Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638 (Fla. 1999));
Kemp v. McDonough, 955 So. 2d 635, 637 (Fla. 1st DCA 2007) (failure to squarely
present the issue to the lower court precluded consideration of the issue on
13

with as much force, if not more, in second-tier certiorari review: complaints about
the proceedings before the Commission that were not raised to the Commission or
in the Circuit Court on first-tier certiorari review, are beyond the scope of secondtier certiorari review and cannot be raised or addressed by this Court. See Town of
Jupiter v. Byrd Family Trust, 134 So. 3d 1098, 1100 (Fla. 4th DCA 2014)
(rejecting the arguments raised for the first time in the petition on second-tier
certiorari, aptly reasoning that [f]or the purpose of second-tier certiorari, the
circuit court cannot be said to have departed from a clearly established principle of
law when it failed to consider or apply a point not raised in the briefs.); Snyder v.
City Council of City of Palmetto, 902 So. 2d 910, 911-12 (Fla. 2d DCA 2005)
(recognizing the exceedingly limited scope of review on second-tier certiorari
review and explaining that where the issues presented were not issues addressed by
the City Council, they were not properly before the circuit court.). See also
Advanced Chiropractic & Rehab. Ctr. Corp. v. United Auto. Ins. Co., 103 So. 3d
866 (Fla. 4th DCA 2012). 7

certiorari review); Reznik v. FRCC Prods., Inc., 15 So. 3d 847, 849 (Fla. 4th DCA
2009) (explaining the practical necessity and basic fairness rationale for the rule).
7

Cf. Feng Chai Yang v. U.S. Atty. Gen., 574 F. Appx 885, 886-87 (11th Cir.
2014) (dismissing the petition for review of the Board of Immigration Appeals
decision with respect to arguments which were not properly raised before the
Board of Immigration Appeals); AmayaArtunduaga v. U.S. Atty Gen., 463 F.3d
1247, 1250 (11th Cir. 2006) (same).
14

Here, Petitioners ignore this long-standing rule, and, after retaining new
counsel, have come up with a multitude of new issues that were never before the
Commission or the Circuit Court on first-tier certiorari review.
I.

Petitioners failed to present below their (incorrect)

argument that, in conforming its Permit application to meet
the loading berth requirement of Pfeffer 1, Wal-Mart was
required to resubmit the application under Code Section
1505.1, and as such, it is waived.

In the Argument section 2.A (Pet. at 36-39), and Argument section 2.B.1
(Pet. at 39-45), Petitioners present a new issue based on Code Section 1505.1.
Specifically, Petitioners claim that:
[I]f there was in deed [sic] any change or modification in Wal-Marts
application after the Circuit Court ruling, or, if Wal-Mart intended to
amend the proposal ostensibly to modify the number of loading
berths in an effort to comply with the Special Permit requirements
without a variance, it was required to resubmit the application under
Code 1505.1, governing Requirements concerning changes in
original applications after final approval.[] However, the Circuit
Court failed to apply the correct law in . . . ignoring the Circuit
Courts quashal and mandate and making up its own procedure on
remand that ignored the clear provisions of the City Code requiring
Wal-Mart to submit its application anew via Section 1505.1 . . . .
Pet. at 38-39. See also Pet. at 39-45 (titled, Code Section 1505.1, Governing
Changes in Original Applications After Final Approval, Required Wal-Mart to
Resubmit Any Modifications in Accordance and Follow the Procedures Mandated
Thereunder) (in which Petitioners claim that the Circuit Court departed from the

15

essential requirements of law in failing to enforce Code Section 1505.1 governing

Requirements concerning changes in original applications after final approval.).
Petitioners never made this argument to the Commission or the Circuit Court
on first-tier certiorari. In fact, Section 1505.1 is not even cited or mentioned
anywhere in the Petitioners petition for writ of certiorari or their reply in support
thereof filed in the Circuit Court below. If Petitioners truly believed that Wal-Mart
was required to follow Section 1505.1 in conforming the Permit application to the
requirement established in Pfeffer 1, they should have raise this issue belowfirst
to the Commission, and then to the Circuit Court on first-tier certiorari review.
Instead, Petitioners advanced other arguments, which were fully considered and
rejected. These arguments are improperly presented for the first time on secondtier certiorari review, and this Court should outright disregard them.
Nonetheless, Petitioners argument based on Section 1505.1 is substantively
wrong. The argument is based on one fatal flaw: the assumption that at the time of
the remand from Pfeffer 1 there was a final approval of the Permit. The
misconception is revealed by the idea Petitioners present elsewhere in their
petition. At pages 36-37 of their petition, Petitioners correctly assert:
As the Supreme Court has held: When the order is quashed, as it was
in this case, it leaves the subject matter, that is, the controversy
pending before the tribunal, commission, or administrative authority,
as if no order or judgment had been entered and the parties stand
upon the pleadings and proof as it existed when the order was made

16

. . . . G.B.V.[, 787 So. 2d] at 844. Thus the procedural posture of the
case was where it stood at the time of the last Commission hearing. . .
(Emphasis added.) Thus, when the Circuit Court quashed the Commissions
resolution at the conclusion of Pfeffer 1, and when Wal-Mart conformed its Permit
application to abide by Pfeffer 1s holding, there was obviously no final approval
of the Permit. In fact, in their Statement of Facts, Petitioners acknowledge that the
Final Action Date, i.e., the final approval, was on November 20, 2014at the
conclusion of the Commission hearing at which it approved the conformed Permit
application. Pet. at 33. Section 1505.1 was simply inapplicable; this is most likely
the reason Petitioners never invoked it until now.
Rather, as argued by the City and Wal-Mart in the Circuit Court below, the
Code gives the Commission the authority to approve a Class II Special Permit,
even when the application as originally received did not comply with all of the
requirements under the Code for issuance of such a permit and to impose
conditions for modification of the application to comply with such Code
requirements for approval of the Permit. Specifically, Section 1305 provides that
the Commission may approve, approve with conditions, or deny the pending
application. Section 1305, City of Miami Zoning Code (11000) (emphasis
added).8 Similarly, Section 2004 of the Code explains in an appeal from a decision

In Pfeffer 1, the circuit court ruled, among other things, that Section 1305
applies to the facts in this case, such that its provisions are applicable to the
17

of PZAB, The city commission on review shall have full power to affirm, reverse,
modify, in whole or in part, with or without conditions, the action of the zoning
board or other appealable decision pursuant to this zoning ordinance. Section
2004, City of Miami Zoning Code (11000) (emphasis added).
The plain language of the Code granted the Commission the authority to
approve the Permit, even if the original application required conditions prior to
approval. Petitioners simply cannot show any departure from the essential
requirements of the law, much less one that results in a miscarriage of justice.
Accordingly, the Court should decline to entertain this argument raised for
the first time in this proceeding, but in any event, may reject it on the merits.
II.

Petitioners similarly failed to present below their (incorrect)

argument that the City violated Code Section 2215.2, which,
in any event, is beyond the scope of permissible second-tier
certiorari review, and is substantively wrong.

In the Argument section 2.B.2 (Pet. at 45-46), Petitioners present another

new issue based on Code Section 2215.2. Petitioners argue that the City violated
Section 2215.2 in that it allowed Wal-Mart to amend its application to reduce the
number of interior loading berths from five to three nearly two weeks after it had
Commissions appellate review (Pfeffer 1, App. A at 6). That is the law of the case,
which Petitioners cannot challenge. See Dougherty ex rel. Eisenberg v. City of
Miami, 23 So. 3d 156, 157-58 (Fla. 3d DCA 2009) (collecting cases) (explaining
that the doctrine of the law of the case requires, absent limited exceptions not
applicable here, that questions of law actually decided on appeal must govern the
case in the same court and the trial court, through all subsequent stages of the
proceeding).
18

publicly noticed the meeting. Pet. at 46. Once again, Petitioners never made this
argument to the Circuit Court on first-tier certiorari: Section 2215.2 is not even
cited or mentioned anywhere in the Petitioners petition for writ of certiorari or
their reply in support of the petition filed in the Circuit Court below. Thus,
Petitioners cannot establish (or even seriously contend) that the Circuit Court
applied the incorrect law on an issue that was never before it. See Town of Jupiter,
134 So. 3d at 1102. The argument is not proper here, and should be summarily
rejected.
Moreover, this argument in essence asserts an alleged lack of due process
before the Commission, not the Circuit Court. It is well-settled that [a]rguments as
to the alleged lack of due process before the city commission . . . are beyond the
scope of the due process review available on second-tier certiorari review.
Seminole Entmt, Inc. v. City of Casselberry, Florida, 813 So. 2d 186, 188 (Fla. 5th
DCA 2002); see Stranahan House, Inc. v. City of Fort Lauderdale, 967 So. 2d
1121, 1127 (Fla. 4th DCA 2007) (Stranahan raises a due process issue in its
petition to this court but its complaint involves the alleged lack of due process
before the DRC and City Commission in refusing to hear extensive testimony from
its witnesses. This argument is beyond the scope of the due process review
available in second-tier certiorari proceedings.); Kirrie v. Indian River Cnty. Code
Enforcement Bd., 104 So. 3d 1177, 1180 (Fla. 4th DCA 2012) (Whether the board

19

failed to accord the Kirries procedural due process as a result is not reviewable in
this second tier certiorari proceeding.). Cf. Pharmcore, Inc. v. City of Hallandale
Beach, 946 So. 2d 550, 552 (Fla. 4th DCA 2006); City of Jacksonville v. Huffman,
764 So. 2d 695, 696 (Fla. 1st DCA 2000) (finding that denial of procedural due
process for failing to provide the requisite notice of initial public hearing could not
provide the sole basis for quashing decision of city council permitting construction,
as complainants were provided a full opportunity to present their objections in their
appeal of the commissions decision in a de novo hearing before the land use and
zoning committee). Thus, this argument fails for this additional reason.
Finally, the argument is wrong on its merits. Section 2215.2 provides that,
after notice of a public hearing before the Commission has been given, no change
shall be made in the original application for zoning amendment which would have
the effect of creating substantial differences between the matter advertised and the
matter upon which hearing is actually held. Section 2215.2, City of Miami
Zoning Code (11000) (emphasis added). Petitioners fail to demonstrate how the
minor changes in the Permit application fit this description. In fact, although this
was not an issue presented to the Circuit Court, Petitioners description of the
changes made to conform the application to the requirement announced in Pfeffer 1
suggested no substantial difference. Moreover, as explained above, the
Commission had the power to impose the condition limiting the number of loading

20

berths to three at the very hearingsee Sections 1305 and 2004, City of Miami
Zoning Code (11000)thereby defeating Petitioners argument and requiring that
the petition be denied.
For these reasons, the Court should decline review of this issue improperly
presented for the first time on second-tier certiorari, but in any case, should reject
Petitioners argument.
III.

Petitioners likewise failed to present below their (incorrect)

argument that the City violated Code Section 1305 because
the Commission did not provide written justification for its
actions in denying the appeal.

In the Argument section 2.B.3 (Pet. at 47-49), Petitioners present another

new issue based on the written findings provision of Code Section 1305.
Petitioners attempt to present this issue for the first time in this second-tier
certiorari proceeding. At no point during appellate proceeding before the Circuit
Court did Petitioners assert this issue. Because it has never been raised until this
proceeding, the issue has been waived. Ibid at 12-14. See Town of Jupiter, 134 So.
3d at 1102; Sunset Harbor, 914 So. 2d at 928; Kemp, 955 So. 2d at 637; Reznik, 15
So. 3d at 849. For this reason, this argument has therefore been waived and the
Court should decline to entertain it.
Notwithstanding, the argument is substantively incorrect. The written
findings of fact in the Commissions resolution as to the issue reviewed on

21

remandthe applications compliance with the loading berth requirementswere

sufficient. Specifically, in its resolution, the Commission expressly found that:
a. [O]n October 15, 2014, the [circuit court] issued an opinion
[Pfeffer 1] quashing the City Commissions decision as set forth in
Resolution No. 13-0471, and remanded the matter back to the City
Commission for proceedings consistent with the Courts opinion;
b. the Court found that since the Project provides for five (5) berths
and the Code of the City of Miami, Florida as amended (City
Code[]), requires three (3) berths total that the Commissions
Resolution finding that the Project complied with the requirements
under the City Code is a departure from the essential requirements
of the law on that issue only;
c. in accordance with the Courts opinion, the City Commission
considered the appeal of the Class II on November 20, 2014;
d. [the Commission] consider[ed] competent substantial evidence
and testimony presented in the record and at the hearing on
November 20, 2014;
e. the City Commission after careful consideration of this matter
including evidence admitted into the record at this hearing and
including the decision of the Court in the above referenced case,
finds the application for the Class II Special Permit meets the
applicable requirements of Zoning Ordinance No. 11000 and
deems it advisable and in the best interest of the general welfare of
the City of Miami and its inhabitants to affirm the decision of the
PZAB and deny the appeal of Class II as hereinafter set forth.
App. 9.
Simply stated, consistent with the principles announced in Pfeffer 1
regarding the sufficiency of written findings, the Commissions findings above set
forth sufficient information to afford meaningful judicial review. See Pfeffer 1,

22

App. A at 7 (citing Lucia Dougherty v. City of Miami and Morningside Civic

Assoc., Inc. 13 Fla. L. Weekly Supp. 959a (Fla. 11th Cir. July 14, 2006).
Accordingly, the Court should decline to entertain this argument raised for
the first time in this proceeding, but in any event, may reject it on the merits.
IV.

Lastly, the only issue actually presented to the Circuit

Court below is a non-issue.

In a small portion of Argument section 2.A (Pet. at 35-36), Petitioners make

the pointless claim that the the Circuit Court departed from the essential
requirements of the law by failing to grant certiorari to correct the Citys erroneous
interpretation of the Circuit Courts mandate [from Pfeffer 1] as requiring specific
direction on remand rather than treating the quashed permit as a nullity. . . . Pet. at
36. Evidently, this argument (based on comments taken out of context) is of no
consequence, as it, by itself, ignores the actions actually taken by the
Commissionits review of the issue de novo, its express reliance on Pfeffer 1, and
its evaluation of the application that had been conformed to comply with Pfeffer
1s holding. In fact, it is evident that the object of this Argument section 2.A is
simply to introduce Petitioners untimely and improper challenge based on Section
1505.1, and that the Commissions comments about the mandate of Pfeffer 1 is
subordinate and trivial even in the context of Petitioners arguments. Nonetheless,
we address this issue separately, as it is the only argument actually advanced in the
Circuit Court on first-tier certiorari review.
23

The argument can readily be disposed of by looking at the context of the

statements that Petitioners complain about in their petition, which shows that the
Commission did not require an express direction from the [Circuit Court].
Rather, it simply addressed Petitioners counsels erroneous (and now abandoned)
arguments by pointing out the absence of any actual holding or directive by the
Circuit Court in Pfeffer 1 supporting his position. Specifically, Petitioners only
specific citations to the record on this point refer to a comment by Commissioners
Hardemon (Pet. at 29, 35) and a comment from the City Attorney (Pet. at 30, 36)
both made in response to Petitioners arguments at the hearing.
At the hearing, Petitioners argued (similar to their argument in the Circuit
Court that has now been abandoned) that, even though the Project now conformed
to the three loading berths requirement holding of Pfeffer 1, the circuit courts
order in Pfeffer 1 required the Commission to grant Petitioners appeal or
alternatively required Wal-Mart to either submit an entirely new application for a
Class II Special Permit and start the entire process from scratch or submit an
application for a MUSP requesting a variance for the two additional loading berths
that Wal-Mart did not want.9 In response to this argument, Commissioner

Petitioners now for the first time acknowledge the third viable alternative of
modifying the Permit application to conform to the three loading berth
requirement, but advance a waived (and incorrect) argument based on Section
1501.1. See ibid at 14-17.
24

Hardemon correctly remarked, as Petitioners actually describe in their Statement of

Facts:
Now, it doesnt then say, because they departed from the essential
requirements of the law that the application must be resubmitted as if
it was a -- to be resubmitted as a variance. It does not say that.
What it goes on to say is that for the above stated reasons, we hereby
quash the Commission's decision as set forth by resolution and
remand this cause for proceedings consistent herein.
Had the court, to me, in my reading of this said, after they said the
City departed from the essential requirements of the law, if it then said
that the applicant at the time must then resubmit their application in
accordance--just as the same way it mentioned resubmitted the
application in your argument, having said that, I would think that then
there would need to be some re-submittance of the application and
that portion has to be reconsidered. I don't see that.
(Tr. at 43-44). There was nothing wrong with Commissioner Hardemons
statements. He was actually correcting (adequately so) Petitioners counsels
erroneous interpretation of Pfeffer 1. In fact, Petitioners no longer faithfully hold
the position presented by Petitioners prior counsel at the Commission hearing and
before the Circuit Court on first-tier review (opting to present an entirely new and
incorrect issue based on Section 1501.1, addressed in pages 14-17 above).
Similarly, the comment from the City Attorney Petitioners complain about
was made in response to Petitioners attempt to misguide the Commission into
believing that the Circuit Courts ruling in Pfeffer 1 required Wal-Mart to submit
an entirely new application for a Special II Class Permit starting all over the (now
three-year) process or required it to submit an application for MUSP to obtain the
25

additional loading berths that Wal-Mart was not asking for on remand. In response
to Petitioners arguments at the hearing, Vice Chair Hardemon asked if there was
any case law that held that when a decision from the Commission on a permit was
quashed the applicant had to go back through a full process. (Tr. at 69). Petitioners
counsel acknowledged he had none. Id. Wal-Marts counsel agreed there was no
case law supporting Petitioners view. 10 Id. And the City Attorney then remarked:
And if I may just briefly, and I think this will resolve most questions,
and we can just hone in the three issue, three berths issue. For the
above stated reason, we hereby quash the Commissions decision as
set forth in resolution R-13.
It doesnt say quash everybodys decision. It doesnt say all
decisions. It doesnt say start all over. And more so, we are already
having a de novo hearing today on the one issue that they disagreed
with. So were really beating a dead horse today.
(Tr. at 70). Once again, the record evidences that the City Attorney was not
requiring an express direction from the Circuit Court; quite the opposite: she was
simply noting that the order quashing the Commissions prior resolution did
nothing more than any other quashal order, and specifically, did not require the
extraordinary relief that Petitioners claimed it did (the start of an entirely new

10

In fact, Florida case law illustrates that decisions from the circuit court
quashing resolutions of the Commission are to be remanded to the Commission for
the Commission to consider and address the matters resolved by the circuit courts
(or this Courts) opinion on certiorari review. See Hernandez-Canton v. Miami City
Comn, 971 So. 2d 829, 831 (Fla. 3d DCA 2007); Dougherty ex rel. Eisenberg v.
City of Miami, 89 So. 3d 963, 964-66 (Fla. 3d DCA 2012); and Jesus Fellowship,
Inc. v. Miami-Dade County, 752 So. 2d 708, 711 (Fla. 3d DCA 2000).
26

application process). Rather, as Petitioners now acknowledge, the matter was

properly before the Commission for review of the Permit application, with the
same authority to impose conditions or modification on a permit application, as if
the prior quashed resolution had never been issued, except, of course, the parties
were bound by the law of the case with respect to the points decided in Pfeffer 1.
In sum, Petitioners argument is frivolous. The Commission properly
approved the Permit after conducting a de novo hearing on the only objection to
the Project that remained after Pfeffer 1 and finding that the application had been
conformed to provide for only three loading berths as required by Pfeffer 1 (at
Petitioners request). There is no basis for even suggesting the Circuit Court
departed from the essential requirements of the law by applying the incorrect law
on this matter.
V.

Even looking beyond the myriad of substantial problems

with Petitioners arguments, none rise to the level
required for this Courts exercise of second-tier
jurisdiction to prevent a gross miscarriage of justice.

As the Florida Supreme Court has advised, district courts of appeal should
exercise the discretion to grant certiorari only when there has been a violation of a
clearly established principle of law resulting in a miscarriage of justice. Combs v.
State, 436 So. 2d 93, 96 (Fla. 1983); see also Stranahan House, Inc. v. City of Fort
Lauderdale, 967 So. 2d 1121, 1125 (Fla. 4th DCA 2007). This case presents the

27

antithesis of the circumstance where it would be advisable for a district court to

exercise its jurisdiction on second-tier review.
Simply put, after a myriad of public administrative and court proceedings in
which Petitioners challenged every aspect of the Project imaginable, the Circuit
Court in Pfeffer 1 held that the Permit application complied with all the
requirements of the City Code in all but one minor respect: the number of interior
loading berths permitted for the Project. It found that the Code required three
loading berths as opposed to the five loading berths that had been approved based
on the Citys longstanding interpretation of the Code section establishing the
loading berth requirement. Had the Permit application been approved with three
loading berths, this case would have seen its end one year ago. Since then, the
application was conformed to the three loading berth requirementgiving
Petitioners the only relief they were entitled to. This single issue was then
reviewed and approved by the Commission and the appeal of that decision was
swiftly rejected after oral argument presided by two of the three same judges who
decided Pfeffer 1. In fact, at oral argument, Petitioners counsel conceded the
Permit as presented to the Commission on remand complied with all Code
requirements and acknowledged Petitioners were not challenging any aspect of the
Permit in that regard (his argument, now abandoned by Petitioners with new
counsel, was a procedural one that was not supported by any case authority).

28

Moreover, having had every objection ruled upon by every reviewing body at
public hearings and having obtained what they wanted (at least on the only issue
they prevailed, minute as it may be)three internal loading berthsPetitioners
could not then, and cannot now, show any prejudice, much less a gross miscarriage
of justice, as is required for invoking this Courts certiorari jurisdiction on second tier review.
CONCLUSION
For these reasons, the Petition must be denied.

Respectfully submitted this 19th day of October, 2015.

LYDECKER | DIAZ
Counsel for Wal-Mart Stores East, LP
1221 Brickell Avenue, 19th Floor
Miami, Florida 33131
Tel.: (305) 416-3180
Fax: (305) 416-3190
By: s/ Joan Carlos Wizel
Joan Carlos Wizel (FBN 37903)
E-mail: jcw@lydeckerdiaz.com
Mark A. Emanuele (FBN 541834)
E-mail: mae@lydeckerdiaz.com
Richard Lydecker (FBN 490555)
E-mail: rl@lydeckerdiaz.com
Manuel A. Diaz (FBN 310514)
E-mail: manny@lydeckerdiaz.com

29

CERTIFICATE OF SERVICE
I hereby certify that on this 19th day of October, 2015, a copy of the
foregoing was sent via e-mail to:
Samuel J. Dubbin, P.A.
E-mail: sdubbin@dubbinkravetz.com
Dubbin & Kravetz, LLP
1200 Anastasia Avenue. Ste. 300
Coral Gables, Florida 33134
Attorney for Petitioners

Victoria Mendez
John A. Greco
E-mail: agreco@miamigov.com
E-mail: slstubbs@miamigov.com
E-mail: tmickens@miamigov.com
44 S.W. 2nd Avenue, Suite 945
Miami, Florida 33130
Attorneys for Respondent City of Miami

By: s/ Joan Carlos Wizel

Joan Carlos Wizel (FBN 37903)
CERTIFICATE OF COMPLIANCE
I HEREBY CERTIFY that the foregoing brief complies with all the
requirements set forth in Florida Rule of Appellate Procedure 9.100.

By: s/ Joan Carlos Wizel

Joan Carlos Wizel (FBN 37903)

30