Filing # 63148622 E-Filed 10/21/2017 05:51:05 PM

IN THE CIRCUIT COURT OF THE

ELEVENTH JUDICIAL CIRCUIT IN
AND FOR MIAMI-DADE COUNTY,
FLORIDA

GRANT STERN,
CASE NO.: 2017-22711-CA-01
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.
_____________________________________/

PLAINTIFFS MOTION FOR CIVIL CONTEMPT

FOR DEFENDANTS REFUSAL TO COMPLY WITH COURTS ORDER
WITH DEMAND FOR AN IMMEDIATE EMERGENCY HEARING

COMES NOW, the Plaintiff, GRANT STERN (Stern), by and through undersigned

counsel, and pursuant to Fla. Stats. 119 et seq., hereby files his Motion for Civil Contempt

for Defendants Refusal to Comply with the Courts October 18, 2017 Order with a Demand

for an Immediate Emergency Hearing, and in support thereof, states as follows:

BACKGROUND

1. Plaintiff filed his Verified Complaint and supporting Exhibits on September 27, 2017,

wherein Count I stated a prima facia case for an action to enforce the Defendants denial of

his request for public records. Plaintiff incorporates the Verified Complaint, including Count I

and its supporting Exhibits herein.

2. The first immediate hearing relating to the action was scheduled on October 17,

2017. Nevertheless, the Court initially refused to hear the matter, and the Plaintiff had to insist

for nearly an hour before an impromptu hearing was held.

PLAINVIEW LAW pllc

t.305.632.4002 | chris@plainviewlawfirm.com | f.786.204.0802

Page 1 of 8
3. The Court issued an Order, prepared jointly by undersigned and ACA Harrison, that

commanded the Defendants to preserve all records related to the records requests, preserve

all records referenced in the Complaint, and produce all records referenced in the Complaint.

ACA Harrison refused to set a time for production.

4. Rather than produce the records referenced in the Complaint, in the time since the

Hearing, the Assistant County Attorneys (ACA) eventually assigned to the matter, spent the

remainder of the week filing a Motion to Continue the Plaintiffs Hearing on its request for an

Emergency Temporary Injunction, filing a Request for Judicial Notice, and filing a Notice of

Unavailability.

5. The ACAs also managed to speak to the Court on October 19, 2017, the day their

Motion for a Continuance was filed, and on October 20, 2017, after Plaintiff confirmed his

availability for the dates provided, the ACAs spoke to the Court to schedule the hearing for

Monday, October 23 at 01:23PM. No notice of hearing was provided to the Plaintiff, even after

he requested one.

6. On October 20, 2017 the Plaintiff also filed his Response to the Defendants Motion

for a Continuance, and outlined a series of delays and misrepresentations perpetuated by the

ACAs in the time following the October 17, 2017 hearing. The Response also noted that it

took nearly two weeks to schedule two emergency hearings since filing the Complaint, and

that the hearings were scheduled for three (3) to four (4) weeks after filing. The ACAs on the

other hand were able to speak to the Court the same day they filed their Motion and obtain

the hearing scheduled within two (2) business days of filing.

7. The Plaintiff asked the ACAs several times in that period when they expected to

produce the records referenced in the Courts Order, and even tried to coordinate with an

PLAINVIEW LAW pllc

t.305.632.4002 | chris@plainviewlawfirm.com | f.786.204.0802

Page 2 of 8
ACA for in person inspection of the records (a matter separate to the production demanded

in the Order) but has yet to receive a response on those issues.

8. In their Motion for a Continuance, the ACAs list a multitude of inconveniences in their

schedule that purportedly prevented them from attending to this matter all of next week, and

that no one in an office of twenty-eight (28) attorneys could cover for them.

9. Even after undersigned spent a significant amount of time responding to the ACAs

Motion for a Continuance, coordinating on scheduling its hearing, faxing the relevant

Response documents to the Court and the ACAs and preparing for the Monday hearing, the

ACAs communicated with the Court sometime between Friday evening and this Saturday

morning, because undersigned received an email by the ACAs at 09:22AM informing him

that the hearing was cancelled. The email did not indicate whether they would be attending

the hearing they insisted on continuing, nor did it address when they intended to produce the

records referenced in the Order.

LAW

10. Whenever an action is filed to enforce the provisions of Floridas Public Records Act

(Act), the Court shall set an immediate hearing, giving the case priority over other pending

cases. Fla. Stat. 119.11(1).

11. When the Court orders an agency to open its records for inspection in accordance

with the Act, the agency shall comply with the Order within forty-eight (48) hours, unless

otherwise provided by the Court, or unless the appellate Court issues a stay within the forty-

eight (48) hour period. Fla. Stat. 119.11(2). The Defendants shall not be granted a stay

ordered unless the Court determines that there is substantial probability that opening the

records for inspection will result in significant damage. Fla. Stat. 119.11(3).

PLAINVIEW LAW pllc

t.305.632.4002 | chris@plainviewlawfirm.com | f.786.204.0802

Page 3 of 8
12. Upon service of a Complaint in an action to enforce the Act, the Defendants shall not

transfer custody, alter, destroy, or otherwise dispose of the records sought unless the court

orders otherwise. Fla. Stat. 119.11(4).

13. Delay in making public records available under the Act is impermissible, except under

very limited circumstances. See Promenade Dlberville, LLC v. Sundy, 145 So.3d 980 (Fla.

1st DCA 2014). The only non-circumstantial delay permitted by the Act is the reasonable time

allowed the custodian to retrieve the record and delete the portions the custodian asserts are

exempt. See id.

14. Under the Act, unjustifiable delay to the point of forcing a requestor to file an

enforcement action is by itself tantamount to an unlawful refusal, and is a violation of the Act.

Id. Production of records sought after an enforcement action is filed does not moot issues

raised in a Complaint seeking disclosure. Puls v. City of Port St. Lucie, 678 So.2d 514 (Fla.

4th DCA 1996).

15. Any public officer who violates any provision of the Act commits a noncriminal

infraction, punishable by a fine not exceeding $500. Fla. Stat. 119.10(1)(a). Any public

officer who willfully and knowingly violates the provisions of the Act commits a misdemeanor

of the first degree. Fla. Stat. 119.10(2)(a).

16. Disobedience of a court order that has not been stayed or appealed is quintessentially

contumacious. See H.K. Dev., LLC v. Greer, 32 So.3d 178, 183 (Fla. 1st DCA 2010). A party

may not ignore a valid court order except at its peril. See Johnson v. Allstate Ins. Co., 410

So.2d 978, 980 (Fla. 5th DCA 1982) (orders by a court that has jurisdiction over the subject-

matter and the parties to the action cannot be completely ignored without risking sanctions).

PLAINVIEW LAW pllc

t.305.632.4002 | chris@plainviewlawfirm.com | f.786.204.0802

Page 4 of 8
17. Courts have the authority to enforce an order by the exercise of its civil contempt

powers, and have a broad arsenal of civil contempt sanctions at their disposal to compel

compliance with its orders. See Parisi v. Broward County, 769 So.2d 359, 363-65 (Fla. 2000).

ARGUMENT

18. As of today, three and a half weeks since filing the Complaint, and over ninety-six (96)

hours since the Court ordered the Defendants to produce all records referenced in the

Complaint, the Plaintiff has not received a single record pursuant to the Courts Order.

19. Instead, the Defendants have provided the Plaintiff with six (6) Notices of Appearance,

a Motion to Continue an already delayed hearing on an Ex Parte Emergency Temporary

Injunction, a Notice of Unavailability, a runaround on the hearing they scheduled for Monday

October 23, 2017, and then cancelled, along with a battery of legally insufficient excuses of

inconvenience.

20. The Order for production was issued before 10:00AM on Tuesday, October 17, 2017.

Under Fla. R. Jud. P. 2.514(2), a period stated in hours, such as the forty-eight (48) hour

statutory period for compliance under Fla. Stat. 119.11(1) begins to run immediately on the

occurrence of the event that triggers the period. As such, the Defendants are bound to comply

with the Courts Order before 10:00AM on Thursday, October 19, 2017.

21. The Defendants have had a copy of the Verified Complaint since September 27, 2017,

and had not made a single attempt to contact undersigned regarding the records requested

therein, except for one communication after the hearing, which related to in-person

inspection, an issue distinct from the order, where the Plaintiff was not given any dates to

inspect, but was referred to another ACA who would purportedly schedule a time for

inspection.

PLAINVIEW LAW pllc

t.305.632.4002 | chris@plainviewlawfirm.com | f.786.204.0802

Page 5 of 8
22. Defendants Request for Judicial Notice of a separate records request by the Plaintiff,

unconnected to this action except to show additional instances of delay on their part, does

not comply with the demand to produce records referenced in the Complaint, and was filed

over a day after the deadline.

23. Rather than comply with the Order, the Defendants spent the little time they claimed

to have on actions that would lead to further delay and misdirection, and to unnecessarily

increase the costs of litigation. It is the Plaintiffs firm belief that the Verified Complaint,

supported by comprehensive exhibits, is self-evident on the issue of unlawful denial through

unjustified delay (along with numerous other instances of unlawful denial). The Defendants

contempt for the Courts order only serves to amplify the unlawfulness and persistence of

their actions.

24. The Courts Order and the Act clearly define the obligations imposed on the

Defendants. The Defendants have had the ability to comply with the Order, but instead

decided to submit filings that further delay their compliance. The Defendants assisted

preparing the Order, and knowing its contents, have made multiple delays and

misrepresentations in its filings since the Order was issued, which are detailed in this Motion

and in Plaintiffs Response to Defendants Motion for a Continuance. The Defendants actions

only reinforce the need to issue an emergency temporary injunction, and are consistent with

the misconduct detailed in the Complaint and all the Plaintiffs filings in this action.

25. For the reasons stated above, Plaintiff demands the following relief:

a. Set an immediate emergency hearing on this Motion;

b. Adjudicate that Defendants are in civil contempt;

c. Assess monetary fines against the Defendant;

d. Incarcerate the Defendants and their attorneys (with a purge provision);

PLAINVIEW LAW pllc

t.305.632.4002 | chris@plainviewlawfirm.com | f.786.204.0802

Page 6 of 8
 e. Penalize the Defendants and their attorneys as provided under Fla. Stat.

119.10(1)(a), (2)(b).

f. Appoint a Special Master or Receiver with authority to take immediate

possession of all the records referenced in the Plaintiffs Complaint and deliver

a copy to Plaintiffs counsel;

g. Waive all fees Defendants intend to assess against the Plaintiff for production

of the records referenced in the Complaint;

h. Award attorneys fees and costs;

WHEREFORE the Plaintiff respectfully requests this Court grant this Motion and issue

an Order with all the relief requested in Paragraph 24 above.

DATED: October 21, 2017

Respectfully Submitted,

/s/ Christopher A. Fleites

Christopher Andrew Fleites
FLBN 118197
PLAINVIEW LAW pllc
2103 Coral Way, STE 202
Miami, FL 33145
chris@plainviewlawfirm.com
t.305.632.4002
f.786.204.0802

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was served
electronically via the Courts E-Filing Portal on October 21, 2017 to all parties listed on the service
list below.

BY /s/ Christopher A. Fleites

Christopher Andrew Fleites
FLBN 118197
PLAINVIEW LAW pllc

PLAINVIEW LAW pllc

t.305.632.4002 | chris@plainviewlawfirm.com | f.786.204.0802

Page 7 of 8
 SERVICE LIST

CHRISTOPHER ANDREW FLEITES FORREST LEE ANDREWS, JR, ESQ.

FLBN 118197 FLBN 17782
PLAINVIEW LAW pllc Assistant City Attorney
2103 Coral Way, STE 202 flandrewsjr@miamigov.com
Miami, FL 33145 aidagarcia@miamigov.com
chris@plainviewlawfirm.com DOUGLAS A. HARRISON, ESQ.
cc grantstern@gmail.com FLBN 75566
t.305.632.4002 Assistant City Attorney
f.786.204.0802 daharrison@miamigov.com
Attorney for the Plaintiff, Grant Stern jjgreen@miamigov.com
Office of the City Attorney
City of Miami
444 SW 2 AVE, STE 945
Miami, FL 33130
t.305.416.1800
f.305.416.1801
Attorneys for Defendants City of Miami,
Victoria Mendez, & Francisco J. Garcia

PLAINVIEW LAW pllc

t.305.632.4002 | chris@plainviewlawfirm.com | f.786.204.0802

Page 8 of 8