Filing # 62038298 E-Filed 09/27/2017 11:49:23 PM

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.
_____________________________________/

EX PARTE
MOTION FOR AN EMERGENCY TEMPORARY INJUNCTION

Plaintiff, GRANT STERN, by and through undersigned counsel, and pursuant to Fla. R.

Civ. P. 1.610, hereby files this Ex Parte Motion for an Emergency Temporary Injunction against

Defendants Victoria Mendez (Mendez) and Francisco J. Garcia (Garcia), and in support

thereof, states as follows:

INTRODUCTION

1. Plaintiff is seeking declaratory and injunctive relief against Defendants City of Miami

(City), City Attorney Victoria Mendez (Mendez), and City Planning and Zoning Director

Francisco J. Garcia (Garcia), for their violations of Floridas Public Records Act, Floridas Public

Meetings Act, Miami-Dade Countys Bill of Rights, and the City Charter related to particular

actions taken by the Defendants against Stern when he formally appealed Garcias approval of

Wal-Mart Stores East, LPs (Walmart) application for a Class II Special Permit.

2. The verified Complaint initiating this action (filed concurrently with this Motion) describes

in detail- and includes documentation supporting- the Plaintiffs allegations on the three (3) counts

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plead therein. Plaintiff incorporates the verified Complaint herein by reference, and summarizes

some of its facts as grounds for the issuance of a Temporary Injunction against Mendez and

Garcia for the duration of these proceedings.

GROUNDS FOR RELIEF

3. Florida law requires that a party seeking an injunction must show (1) substantial likelihood

of success on the merits (on a clearly established principle of law), (2) irreparable harm, (3) an

inadequate remedy at law, and (4) consideration of public interest.

01 Substantial Likelihood of Success on the Merits & Clearly Established

Principles of Law

4. 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.

119.07(1)(a).

5. 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. Plaintiff provided multiple written

notices to the Defendants relating to the records requests between October 24, 2014 and

December 04, 2014.

6. 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.

7. 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). 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

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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).

8. 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).

02 Irreparable Harm

9. Garcia and Mendez, as department heads, serve as the custodians of the public records

relevant to this action. The public records in their custody are also central to this action. Mendez

and Garcia have demonstrated a pattern- especially when holding an adversarial position to the

Plaintiff- of misrepresenting critical information on, and denying him access to public records

related to public hearings.

10. Some of these records 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;

b. Correspondence and Memoranda: Program and Policy Development (GS1-SL,

Item #338, at 11) are retained for five (5) years.

c. Directives/Policies/Procedures (GS1-SL, Item #186, at 11) are retained for two

(2) years after being superseded;

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 d. Inventory: Agency Records (GS1-SL, Item #319, at 22) are retained until

obsolete, superseded, or administrative value is lost;

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;

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;

i. Resolutions: Supporting Documents (GS1-SL, Item #143, at 37) are retained for

three (3) years after date of resolution;

Garcia and Mendez must not be permitted to transfer, alter, or destroy these records in their

custody, or allow them to expire.

11. 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 a party at an official hearing, especially when the records were readily

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available to the appellees and Defendants. Very few remedies exist to relieve this irreparable

injury.

03 Inadequate Remedy at Law

12. Garcia and Mendez have repeatedly made misrepresentations regarding public records

and the Walmart project, including some misrepresentations to this Court regarding the Walmart

project and related public records, and have failed to adhere to City law in their decisions.

13. 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.

14. Although the Mendez acknowledged the requests, and had access to the electronic

records, 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. 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.

15. 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.

16. . Also, his in Final Approval of Walmarts permit, Garcia expressly affirmed that he received

comments and recommendations from five (5) referral sources (necessary and required 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. After years of affirming the existence of these referrals, the City, for the first time since

Walmart submitted its application, admitted in its response to Pfeffer II, that Garcia had only

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completed three (3) of the five (5) necessary and required referrals above, despite representations

to the contrary at every prior level of review concerning Walmarts application.

17. 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. During that enforcement action, the City produced, for the first time,

thousands of records responsive to Sterns October 24, 2014 requests. 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

2015 and 2016, incidental to Sterns November 9, 2015 enforcement action and subsequent

requests.

18. Mendez and Garcia have exhibited a pattern of substantial noncompliance with public

records requests, especially when it suits their interests, and have failed to fully comply, even in

response to multiple requests, and a court order. Little, if no remedy exists to the approach they

take when managing public records requests.

04 Consideration of Public Interest

19. The Defendants compliance with Floridas Public Records and Public Meeting Laws 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 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, journalists, and the public 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

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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.

20. 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.

21. 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.

REQUESTED RELIEF

22. The summary of the facts in Plaintiffs verified Complaint, provided above, indicate that

Mendez and Garcia cannot be relied upon to participate in these proceedings with honesty,

integrity, accountability, and repeatedly fail to adhere to the principles of law that form the basis

to this action.

23. Garcia and Mendez are the department heads and the records relevant to this action are

almost exclusively in their custody. It is essential that this relief be implemented before the

Defendants have an opportunity to be heard to prevent any further harm, injury or loss to these

records. The requested relief sufficiently addresses and is narrowly tailored to the circumstances

of this case.

24. For the foregoing reasons, this Court should:

A. Enjoin Mendez from representing the City and/or Garcia in this action;

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 B. Enjoin Mendez and Garcia from transferring, modifying, and/or deleting all records

related to this action;

C. 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;

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

ATTORNEY CERTIFICATION

Given Garcia and Mendezs current roles as City department heads and custodians to the records
at issue here, and given the pattern of misrepresentation and disregard for the rule of law
summarized above, it is essential that to achieve maximum effectiveness, this injunction must be
issued swiftly and prior to personal service of the Complaint. Nevertheless, in the interim, I have
included their emails on the electronic service list to this action.

BY /s/ Christopher A. Fleites

Christopher Andrew Fleites
FLBN 118197
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