OFFICE OF THE CITY ATTORNEY MEMORANDUM

Transcription

1 OFFICE OF THE CITY ATTORNEY MEMORANDUM TO: FROM: Honorable Mayor and Members of the City Commission Victoria Méndez, City Attorney DATE: March 27, 2017 RE: Office of the City Attorney - General File for FY Monthly Litigation Report Matter ID No.: In order to keep you informed of the status of pending litigation matters currently handled by the Office of the City Attorney, provided below is a summary of significant results obtained in February 2017, new cases filed against or by the City of Miami during the month of February 2017, and other significant updates. My attorneys and I remain available to update you or discuss any of these matters in further detail at your convenience. SIGNIFICANT RESULTS 1. CODE ENFORCEMENT MATTERS: In the month of January 2017, this Office handled 102 Code Enforcement and Nuisance Abatement matters before the Boards and Special Masters. 2. FLORIDA SUPREME COURT DENIES REVIEW IN FPL TRANSMISSION LINE APPEAL: Florida Power & Light, Co., et al. v. Miami-Dade County, et al., Florida Supreme Court, Case No. SC (VM/JAG) -- This case involved the Final Order on Certification issued to FPL by the State of Florida Siting Board, for the construction of two new nuclear reactors at the Turkey Point plant, as well as miles of towering transmission lines through suburban and urban Miami-Dade County and our City. On April 20, 2016, the Third District Court of Appeal issued an opinion reversing the Final Order of Certification, and agreeing with the City s points on appeal. The Court held that the Siting Board improperly failed to apply the City s applicable land development regulations to the conditions for the transmission towers and lines. The Court also held that the Siting Board erroneously held that it did not have the authority to require FPL to install the lines underground at FPL s expense. FPL and the Siting Board sought to invoke the discretionary jurisdiction of the Florida Supreme Court to review this case. After briefing on the issue of jurisdiction, the Supreme Court denied review. 3. TRIAL COURT GRANTS INTERVENTION IN LABOR CASE REGARDING PROMOTIONAL EXAM: Fraternal Order of Police, Alfred Vega, et al. v. City of Miami, Miami-Dade County Circuit Court, Case No.: (KRJ/KLM/SKP) -- In this lawsuit, the Page 1 of 7

2 Fraternal Order of Police (FOP), as well as eight individual plaintiffs, challenge the 1994 police sergeant's examination, and seek promotions retroactive to 1994, with back pay and emoluments. The trial judge bifurcated the action to first address only liability. The liability phase of this case was tried in a week-long trial ending March 6, 2007, and the judge ruled the exam did not comply with the Civil Service Rules. The parties are now in the damages phase. The Court had previously ruled in the City's favor regarding the identity of the plaintiffs and found that FOP did not have standing in its associational capacity to collect monetary damages on behalf of its individual members. FOP moved for reconsideration of this ruling. The City argued that FOP lacked standing to pursue any individualized damages on behalf of its members, which would include monetary damages such as backpay, and individualized injunctive relief-such as the retroactive promotions sought by FOP in its complaint. On July 1, 2106, the court entered an order denying FOP's motion for reconsideration. On July 8, 2016, the court entered a final judgment in favor of FOP, awarding only the declaratory relief FOP had already been awarded during the liability phase-a declaration that the test was flawed, but finding that FOP lacked standing to seek any monetary or injunctive relief. This judgment had concluded the matter with respect to FOP (which had previously asserted that it represented a group of approximately 140 officers), and presently leaves only the eight (8) individual plaintiffs as the matter proceeds through the damages phase. The FOP has taken an appeal of the Court's decision to the Third District Court of Appeal. Subsequently, a number of potential intervenors who were previously part of the FOP group filed motions to intervene in the matter individually. The trial court granted the motions to intervene. The City filed a motion for reconsideration and motion to dismiss the intervenors, and the court stayed discovery and ordered the putative intervenors to respond to the City s motion within 20 days. COLLECTIONS IN FEBRUARY $114, IN OUTSTANDING LIENS, FEES, & ASSESSMENTS COLLECTED: The City Attorney s Office was tasked with the collection of unsafe structure liens and lot clearing liens in Since 2012, this Office s collection efforts have expanded to include the collection of all liens, fees, and assessments imposed on all properties, including properties that are the subjects of foreclosure actions, tax deed sales, bankruptcy proceedings, or various other actions or proceedings before judicial or quasi-judicial bodies. The City Attorney s Office sent letters to the owners of record and their registered agents, if applicable, and threatened to pursue any and all legal remedies available to the City of Miami if the liens, fees, or assessments were not paid. During the month of February 2017, the owners of the following properties paid outstanding liens, fees, or assessments in the amounts indicated which totaled $114,708.18: 3921 NW 1 Street $34, Violation(s): Mortgage 79 NE 53 Street $ Violation(s): Unsafe Structure and Lot Clearing Liens 1812 NW 55 Terrace $3, Page 2 of 7

3 949 NW 5 Street $3, NW 59 Street $4, NW 71 Street $3, NW 2 Street $ NW 47 Terrace $ NW 59 Street $1, N Miami Avenue $15, NE 42 Street $5, SW 16 Lane $1, NW 23 Court $6, SW 17 Street $3, SW 18 Avenue $ NW 54 Street $ NW 61 Street $16, Violation(s): Lot Clearing and Code Enforcement Liens 1786 SW 9 Street $ SW 22 Avenue $ SW 12 Street $ NW 62 Street $1, NW 69 Street $ Oak Avenue $ SW 51 Avenue $11.88 Violation(s): Trash Citation Lien 6810 SW 5 Terrace $6, Page 3 of 7

4 2295 SW 9 Street $4, Battersea Road $ NW 51 Street $ Total Collected to-date for Fiscal Year $513, October 2016 $66, November 2016 $205, December 2016 $83, January 2017 $43, February 2017 $114, Total Collected by the City Attorney s Office Since 2012 $3, NEW CASES OPENED IN FEBRUARY 1 1. APPEAL PUBLIC RECORDS LAWSUIT: Herbits v. City of Miami, Miami Dade County Circuit Court, Case No (FLA) - The Plaintiff suit against the City for declaratory and injunctive relief under the public records act in chapter 119 of the Florida Statutes. Specifically, he alleged that the City failed to timely provide 2013 traffic study correspondence, conditions precedent documents, commencement of construction documents, permit modification documents, paper records since October 2013, and requested records from the individual defendants. While that lawsuit was pending, the Plaintiff filed a motion for civil contempt sanctions against the City. The trial court denied that motion. The trial court also denied the Plaintiff's motion for attorney's fees and costs in the underlying public records case. The Plaintiff has appealed both of those orders. 2. SUBROGATION ACTION: Imperial Fire & Casualty Insurance Company a/s/o Leticia Jackson v. City of Miami, Miami-Dade County Court, Case No SP 24 (ANF) - This is a subrogation case arising from a motor vehicle accident involving City police officer Robert Carmona. The accident occurred on 8/8/2015 in the southbound lane of SW 157th Ave and SW 157th Street. Civilian driver Leticia Jackson and her daughter Victoria Jackson were stopped in traffic on SW 157th Ave when Officer Carmona hit the rear of their vehicle. Imperial Casualty 1 During the month of February 2017, nine (7) foreclosure matters and four (4) bankruptcy matters were opened by this Office. A summary of those matters is not included in this report. If you wish to be briefed on any or all of these additional matters, a meeting will be coordinated at your convenience. Page 4 of 7

5 insurance paid $2, for the property damage to Leticia Jackson's car. Imperial is now suing the City to recover the amount it paid in property damage. 3. FALSE ARREST CLAIM: Alden Chance v. City of Miami, Miami-Dade Circuit Court, Case No CA 01 (15) (DAH) - Represented Plaintiff filed suit in Miami-Dade County Circuit Court against the City of Miami alleging that on April 3, 2015 Plaintiff was wrongly arrested for Burglary by City of Miami Detectives based on his entering a foreclosed property on behalf of a property management company on April Plaintiff is claiming False Arrest in State Court. 4. NEGLIGENCE ACTION (TRIP AND FALL): Schanetta and Lenna Scroggins v. City of Miami, Miami-Dade County Circuit Court, Case No.: CA 01 (CHG) - Plaintiff Schanetta Scroggins alleges that she tripped and fell on an "elevated and uneven" portion of sidewalk located near Municipal Parking Lot 59 at N.W. 8th Street between N.W. 1st Court and N.W. 2nd Avenue on December 7, Plaintiff Lenna Scroggins (Schanetta's mother) also asserts a negligence claim against the City of Miami for the purported medical and/or hospitalization expenses she incurred as a result of her daughter's fall. 5. CLAIM FOR INJUNCTIVE RELIEF: Pagan v. City of Miami Building Department, Miami-Dade County Court, Case No.: CC 05 (ANF) -- Petitioner, Suzanne Pagan, filed a petition for injunctive relief against the City of Miami Building Department in County Court to enjoin demolition of the property. On February 14, 2017, County Court Judge Lourdes Simon dismissed the petition for lack of jurisdiction. 6. FALSE ARREST CLAIM: Norfrancis Almera vs. City of Miami and Michael New, Miami-Dade Circuit Court, Case No.: CA (31) (CAG) - Plaintiff alleges that on August 10, 2012, Officer Michael New falsely arrested her for trespassing, disorderly conduct, resisting arrest without violence and battery on a law enforcement officer at the Club at Renaissance located at 2340 S.W. 32nd Avenue. Plaintiff alleged Officer New violated her Fourth Amendment civil rights. In addition, she sued the City for false arrest. 7. PROPERTY DAMAGE CLAIM: Diamond Cab dba Guillermo Acosta v. "City of Miami Risk Management Gallager & Assc.", Miami Dade County Circuit Court, Case No SP- 05 (JTM) - The Plaintiff has filed a Statement of Claim stating that a City Dump Truck rear-ended and totaled his taxi (killing his passenger) and the City refuses to pay for the damages. The Plaintiff is seeking $2, NEGLIGENCE ACTION (MOTOR VEHICLE ACCIDENT): Gonzalez, Andy v. City of Miami, Miami Dade County Circuit Court, Case No CA-01 (JTM) - The Plaintiff has filed suit against the City alleging that on April 5, 2016, on SW 22nd Avenue near SW 15th Street, Miami, his vehicle was rear-ended by a City vehicle being driven by a City Police Officer, Ismaelia Castillo, while she was within the course and scope of her employment. The Plaintiff alleges he suffered bodily injury and property damage as a result. Page 5 of 7

6 CASES SET FOR TRIAL OR HEARING IN FEBRUARY 1. TRIAL NEGLIGENCE ACTION (MOTOR VEHICLE ACCIDENT): Ana Huerta v. City of Miami, Miami-Dade County Circuit Court, Case No.: CA 30 (RSO) - The Plaintiff alleges that on October 25, 2013, she was involved in a motor vehicle accident with a City of Miami police vehicle operated by Officer Leonard Linardos (now deceased), at or near the intersection of Flagler Street and SW 22 nd Avenue in Miami. The Plaintiff alleges she was injured due to the negligence of the City driver. This case is presently set for trial before Judge Norma S. Lindsey for the period commencing March 13, TRIAL NEGLIGENCE ACTION (MOTOR VEHICLE ACCIDENT): Juan Jose Santos and Nelly Santos v. City of Miami, Miami-Dade County Circuit Court, Case No.: CA 32 (RSO) - Plaintiffs allege that, on February 14, 2009, at or near the intersection of NW 46 th Street and NW 7 th Avenue in Miami, a motor vehicle owned by the City, and operated by City employee, Johnny Brutus, was involved in a motor vehicle accident with a vehicle in which the Plaintiff, Juan Santos, was traveling. Plaintiffs allege that the City driver s negligence in causing the accident resulted in bodily injury. Plaintiff Nelly Santos alleges loss of consortium. This case is presently set for trial for the period commencing March 27, APPELLATE ORAL ARGUMENT EMPLOYMENT CASE: Locke v. City of Miami, Third District Court of Appeal, Case No. 3D (JAG/KLM) - Jeffrey Locke appeals from a final judgment in favor of the City, following a bench trial. Locke and several other police officers had sued the City based on the City's refusal to allow them to sit for a promotional exam prior to their obtaining the required number of years of actual service at the prior rank. The plaintiffs had argued that they should be permitted to sit for the exam nonetheless because a group of plaintiffs in another case, who had sat for a flawed promotional exam, were permitted to sit for the next promotional exam upon their retroactive promotions following a settlement. The trial court denied declaratory relief. Oral argument before the Third District Court of Appeal occurred on March 21, APPELLATE ORAL ARGUMENT HISTORIC PRESERVATION/UNSAFE STRUCTURES CASE: Babylon International, Inc. v. City of Miami, Third District Court of Appeal, Case No.: 3D (JAG): Babylon International, Inc. sought to demolish a structure on its property and the City declined to issue a demolition permit based on the initiation of the historic preservation process under the City's Ordinances. The Petitioner filed an action for writ of mandamus to compel the City to issue a demolition permit and a declaratory judgment challenging the City's historic preservation process. The trial court denied the writ of mandamus and Babylon filed a Petition for Writ of Certiorari in the Third District Court of Appeal. Oral argument before the Third District Court of Appeal occurred on March 8, APPELLATE ORAL ARGUMENT BERT J. HARRIS ACT/INVERSE CONDEMNATION CASE: Milano, Inc., et al. v. City of Miami, Third District Court of Appeal, Case No.: 3D (JAG) -- The Plaintiffs brought a Bert J. Harris claim and an inverse condemnation claim against the City. The trial court granted the City of Miami's Motion to Page 6 of 7

7 Dismiss. The Plaintiffs have appealed. Oral argument before the Third District Court of Appeal occurred on March 8, TRIAL NEGLIGENCE ACTION (MOTOR VEHICLE ACCIDENT): Jesus Gato Cabado v. City of Miami, Miami-Dade County Circuit Court, Case No.: CA (01) (DAH/CHG/FLA) -- Plaintiff alleges that on January 16, 2013 he was struck by Police Officer Manuel A. Castillo while riding his bicycle at N.W. 20th Street near N.W. 17th Avenue. Trial was held before Judge Rosa I. Rodriguez on March 7-9, Page 7 of 7