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Filing # 41251224 E-Filed 05/09/2016 03:42:52 PM
IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT
IN AND FOR MIAMI-DADE COUNTY, FLORIDA
346 NW 29" Street, LLC and others GENERAL JURISDICTION DIVISION
similarly situated,
Plaintiffs, CASE NO.: 13-037260 CA 01
vs.
CITY OF MIAME, a Florida municipal
corporation, TOMAS REGALADO, in his
official capacity as Mayor, JOHNNY
MARTINEZ, in his official capacity as
City Manager, WILFREDO GORT, in his
official capacity as City Commissioner,
MARC SARNOFF, in his official capacity
as City Commissioner, FRANK CAROLLO,
in his official capacity as City
Commissioner, FRANCIS SUAREZ, in his
official capacity as City Commissioner, and
KEON HARDEMON, in his official
capacity as City Commissioner.
Defendants.
/
CERTIFIED CLASS’S AMENDED MOTION FOR SUMMARY JUDGMENT
ON COUNTS 1 AND 2 AS TO LIABILITY
Plaintiff, 346 NW 29" Street, LLC, d/b/a Museo Vault, (“Museo”) and the class of
Plaintiffs certified by this Court pursuant to the Court’s April 28, 2015, Order (hereinafter, the
“Class”), by and through undersigned counsel, and pursuant to Rule 1.510, Fla. R. Civ. P., move
for summary judgment on Counts 1 and 2 of their Complaint against the City of Miami and
various City officials, including the City Commission members (collectively, the “City”) with
regard to the City’s liability.'_ In support, the Class shows the following
INTRODUCTION
' The issues of each Class member’ s qualifications under the Ordinance and amount of damages346 NW 29" Street, LLC, d/b/a Museo Vault, et al. v. City of Miami, et al.
Case No. 13-37260 CA 01, Page 2
This is a two-count Complaint against the City for declaratory relief (Count I) and writ of
mandamus (Count II) to enforce the Miami Ordinance under Chapter 56, Article V of the Code
of the City of Miami, entitled "Ad Valorem Tax Exemption for Enterprise Zone Businesses,"
originally enacted 12-12-02, and amended 6-22-06 (“Ordinance”). The Ordinance, which
authorizes the City to grant tax exemptions on real property improvements and tangible personal
property to qualified business owners in certain depressed neighborhoods (the “Enterprise
Zone”), was approved by the voters in a referendum held on November 6, 2001. The purpose of
the Ordinance is to encourage business owners to establish new businesses or to expand existing
businesses in distressed neighborhoods by making significant investments, thereby increasing
employment in the area, generating higher tax dollars for the City, and regentrifying blighted
communities. (Cert Order, p. 2-3) Responding to the City’s incentives, Plaintiff Museo, like
the other Class Members, developed a business in the Enterprise Zone that has employed local
residents over the years, and has paid substantial taxes to the county, a portion of which has
landed in the City’s coffers. It is this portion of the taxes designated for the City that should
have been returned to Museo and the other Class Members under the Ordinance as a reward for
their investment, risk, and contribution to community development.
But while Museo and the other Class Members upheld their end of the bargain, the City
failed or refused to recommend for approval or denial any Class Members’ applications, despite
the mandate of the Ordinance. (Cert Order, p. 4) The City claims that enforcement of the
Ordinance is discretionary, and therefore, the City could completely disregard the Ordinance and
toss the applications into the trash. (M/ Dismiss Hrg Trans. p. 43, 45) This Court has already
rejected that notion (Cert. Order p. 4), however, citing to section 56-116 of the Ordinance, which
due are not in the scope of the instant motion.
Pardo Gainsburg, PL + 200 Southeast First Street, Suite 700 + Miami, Florida 33131346 NW 29" Street, LLC, d/b/a Museo Vault, et al. v. City of Miami, et al.
Case No. 13-37260 CA 01, Page 3
sets forth the City’s mandatory, not discretionary, duty to review and recommend applications,
regardless of the ultimate decision to grant or deny tax exemptions.
Moreover, the evidence shows that whatever discretion the City had was lost as a result
of the City’s abuse of its discretion. Museo filed its application in 2009. Its application was
never recommended for approval (or denial) by the City, despite Museo’s qualifications for tax
exemptions under the Ordinance and Museo’s multiple requests to the City for review.
Although the City promised to review the application, the undisputed evidence shows that the
City did nothing
The undisputed evidence shows the other Class Members fared no better than Museo.
With only one exception, the City never placed any applications before the City Commission for
approval, in contravention of the requirements of the Ordinance. The exception was an applicant
whose entire tax exemption would have been only $109 per year and who agreed to waive its
exemption. Therefore, the approval of that one applicant did not afford that business any
exemption at all and the net result is that no qualified applicant received a tax exemption under
the Ordinance. (Cert Order, p. 5) No evidence in the record indicates why the City treated this
one applicant differently from the rest.
Indeed, the City admits that it cannot even find Museo’s application, or any other Class
Members’ applications for that matter, which only highlights the City’s contempt for its
obligations under the Ordinance while the City continues to enjoy the fruits of the investments of
the Class Members. The City’s bad faith is illustrated by its more than decade-long willful
neglect of the applications, its empty promises to put qualified applications before the City
Commission for approval, and its strategy of awaiting the expiration of the Ordinance to claim it
no longer has authority to act.
Pardo Gainsburg, PL + 200 Southeast First Street, Suite 700 + Miami, Florida 33131346 NW 29" Street, LLC, d/b/a Museo Vault, et al. v. City of Miami, et al.
Case No. 13-37260 CA 01, Page 4
While the City’s blatant disregard for the law alone supports a finding that the City lost
its discretion to deny qualified applications under the Ordinance, just as significant is the lack of
substantial competent evidence in the record to support the City’s failure or refusal to grant any
tax exemptions. This dearth of substantial competent evidence — either favoring or disfavoring
granting tax exemptions — renders the City’s actions (or inactions) not fairly debatable but rather,
capricious and arbitrary. Mandamus is the proper vehicle to rectify the capricious or abusive
discretionary acts of governmental officials such as the City actors in this case.
Based on this uncontroverted evidence, a writ of mandamus should be issued finding that
Museo and the other Class Members, upon demonstration of their respective qualifications under
the Ordinance, are entitled to the amount of tax exemptions due for each year they qualified
under the Ordinance. The writ of mandamus should clarify that the Class Members are entitled
to the amount of tax exemptions they would receive for future years so long as the Class
Members continue to maintain their qualifications, for a total of 10 years, the maximum
permitted by the Ordinance
On April 28, 2016, this Court entered an order granting class certification. The City
appealed. On January 27, 2016, the Third District Court of Appeal affirmed the class
certification order without prejudice to the City’s right to raise again its statute of limitations
defenses under §194.171 or §95.11, Florida Statutes, even though this Court had already found
those defenses inapplicable. (Cert Order, p. 11-13) Thus, the instant motion addresses, among
other things, the City’s statute of limitations defense.
I. Standard of Review
Pardo Gainsburg, PL + 200 Southeast First Street, Suite 700 + Miami, Florida 33131346 NW 29" Street, LLC, d/b/a Museo Vault, et al. v. City of Miami, et al.
Case No. 13-37260 CA 01, Page 5
Summary judgment is proper “if the pleadings and summary judgment evidence on file
show that there is no genuine issue as to any material fact and that the moving party is entitled to
a judgment as a matter of law.” Fla. R. Civ. P. 1.510(c). See Volusia County v. Aberdeen at
Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). Summary judgment may be granted in
declaratory judgment actions, see Blue Cross & Blue Shield of Fla., Inc. v. Steck, 778 So.2d 374
(Fla. 2d DCA 2001), and in actions for issuance of mandamus. Southfields of Palm Beach Polo
and Country Club Homeowners Ass'n, Inc. v. McCullough, 111 So. 3d 283 (Fla. 4° DCA 2013).
Here, the pleadings and supporting evidence of record demonstrate that there is no genuine issue
of material fact and the undisputed evidence completely supports a ruling for the Class.
Summary judgment on liability as to both counts is appropriate. See Rose v. Hansell, 929 So. 2d
22 (Fla. 3d DCA 2006); Wroy v. N. Miami Med. Ctr., Ltd., 937 So. 2d 1116 (Fla. 3d DCA 2006).
II. Relief Sought
A Declaratory Judgment
The Class Members seek a declaratory judgment entitling them to approval of their
applications under the Ordinance. Florida courts have specifically recognized declaratory
actions as a proper vehicle for determining entitlement to ad valorem tax exemptions. Davis v.
Gulf Power Corp., 799 So. 2d 298 (Fla. 1* DCA 2001). Museo and the Class have standing to
bring this declaratory action. Chapter 86, Florida Statutes, governs declaratory actions and
gives to circuit courts jurisdiction to “declare rights, status, and other equitable or legal relations
whether or not further relief is or could be claimed.” § 86.011, Fla. Stat. (2014). As stated in
section 86.021, Florida Statutes:
Any person claiming to be interested or who may be in doubt about his or her
rights under ...any regulation made under statutory authority, or by ntunicipal
ordinance...and obtain a declaration of rights, status, or other equitable or legal
Pardo Gainsburg, PL + 200 Southeast First Street, Suite 700 + Miami, Florida 33131346 NW 29" Street, LLC, d/b/a Museo Vault, et al. v. City of Miami, et al.
Case No. 13-37260 CA 01, Page 6
relations thereunder
(Emphasis added). The purpose of Chapter 86 is “to settle and to afford relief from insecurity
and uncertainty with respect to rights, status, and other equitable or legal relations and is to be
liberally administered and construed.” § 86.101, Fla. Stat. “A party is entitled to a declaration of
rights where the ripening seeds of controversy make litigation in the immediate future appear
unavoidable.” South Riverwalk Investments, LLC v. City of Ft. Lauderdale, 934 So.2d 620, 623
(Fla. 4" DCA 2006). Finally, “the existence of another adequate remedy does not preclude”
declaratory relief. § 86.111, Fla. Stat.
It is well settled that declaratory relief is appropriate where a party demonstrates:
[T]here is a bona fide, actual, present practical need for declaration; that the
declaration should deal with present, ascertained or ascertainable state of facts or
present controversy as to a state of facts; that some immunity, power, privilege or
right of complaining party is dependent on fact or law applicable to facts, that
there is some person or persons who have, or reasonably may have actual,
present, adverse and antagonistic interest in the subject matter, either in fact or
law; that the antagonistic and adverse interest are all before the court by proper
process or class representation and that the relief sought is not merely giving of
legal advice by the courts or the answer to questions propounded from curiosity.
Palumbo v. Moore, 777 So.2d 1177, 1178 (Fla. 5" DCA 2001) (quoting May v. Holley, 59 So.2d
636, 639 (Fla.1952)). The Complaint meets this test. The Class submitted applications to the
City pursuant to the Ordinance, the City refused/failed to fulfill its legal duties under the
Ordinance, and the Class suffered the loss of tax exemptions as a result. These allegations
relate to the existence of an actual, bona fide, present dispute over the interpretation of the
Ordinance and the City’s legal duties.
Specifically, some key issues are decided by the claim for declaratory relief: (1) that the
City violated the Ordinance by failing/refusing to recommend applications for approval or
Pardo Gainsburg, PL + 200 Southeast First Street, Suite 700 + Miami, Florida 33131346 NW 29" Street, LLC, d/b/a Museo Vault, et al. v. City of Miami, et al.
Case No. 13-37260 CA 01, Page 7
rejection by the City Commission (2) that the City be held liable for its dereliction of its duty to
approve or deny applications and be required to make restitution to the Class Members for: (a)
the amount of tax exemption to which each Class Member is entitled based on its qualifications
in the year it filed its initial application; (b) the amount of tax exemption to which each Class
Member is entitled based on its qualifications since the year after it filed its initial application,
up to the present year and then into the future for a total of 10 years; and (c) interest on the
amount of the foregoing outstanding tax exemptions.” These are justiciable issues ripe for
declaratory judgment. Orange Cty. v. Expedia, Inc., 985 So. 2d 622 (Fla. s* Dc 2008), North
Ridge Electrical, Inc. v. City of Sunrise, 63 So. 3d 937 (Fla. 4" DCA 2011)
B. Mandamus
Mandamus will lie even where an ordinance contains discretionary language if discretion
regarding the City’s approval or denial of tax exemptions is erroneously exercised or abused
If, in the attempted performance of discretionary acts, the official abuses the
discretion so as to amount to a failure to do the act as the law requires, there has
been in fact no actual exercise in good faith of the judgment or discretion vested
in the officer and mandamus is a proper remedy. An official may not act
arbitrarily and unwarrantably or in disregard of evidence clearly and
unmistakably pointing to a contrary result and thereafter question the right to
resort to mandamus to compel proper action on his part.
City of Hialeah vy. Florida, 97 So0.2d 198, 199 (Fla. 3d DCA 1957). (Emphasis added) Thus, in
City of Hialeah, the court concluded that “the arbitrary or capricious exercise of discretion
conferred by law on an officer can or may be regulated by mandamus.”* /d. One recent case
? As indicated above, the ascertainment of qualifications and damages is not to be decided in this
motion and will be the subject of later motions filed by the Class.
> Other courts have ruled similarly. See Alger v. Dep't of Labor & Industry, 181 Vt. 309, 917
A.2d 508, 516-19 (Vt. 2006) (suggesting failure to implement building code is abuse of
discretion permitting mandamus); Piller v. Village of Beecher, 381 N.E.2d 1209, 1210
(ill. App.1978); Corcoran vy. Village of Bennington, 266 A.2d 457, 463 (Vt. 1970) (concluding
Pardo Gainsburg, PL + 200 Southeast First Street, Suite 700 + Miami, Florida 33131346 NW 29" Street, LLC, d/b/a Museo Vault, et al. v. City of Miami, et al.
Case No. 13-37260 CA 01, Page 8
reinforces the justification for mandamus espoused in City of Hialeah:
However, in 1999 this Court stated that an “arbitrary and capricious action is:
based on personal, selfish, or fraudulent motives, or on false information, and is
characterized by a lack of relevant and competent evidence to support the action
taken.” Coyote Flats, L.L.C. v. Sanborn Co. Comm'rs, 1999 §.D. 87, § 14, 596
N.W.2d 347, 351 (citing Tri Co. Landfill Ass'n v. Brule Co., 535 N.W.2d 760, 764
(S.D.1995)). The language regarding what is to be considered “arbitrary and
capricious” has devolved over time from Richards, 61 S.D. at 38-39, 245 N.W. at
905, which states: The discretion must be exercised under the established rules of
law, and it may be said to be abused within the foregoing rule where the action
complained of has been arbitrary or capricious, or based on personal, selfish, or
fraudulent motives, or on false information, or on a total lack of authority to act,
or where it amounts to an evasion of a positive duty, or there has been a refusal
to consider pertinent evidence, hear the parties when so required, or to entertain
any proper question concerning the exercise of the discretion, or where the
exercise of the discretion is in a manner entirely futile and known by the officer to
be so and there are other methods which if adopted would be effective.
MG. Oil Co. v. City of Rapid City, 793 N.W.24 816 n.7 (S.D. 2011) (Emphasis by MG. Oi) 4
The City of Hialeah case provides two distinct bases for finding mandamus proper, either
of which alone is sufficient to warrant issuance of a writ. First, City of Hialeah cites as grounds
for mandamus an official’s acting “in disregard of evidence clearly and unmistakably pointing to
a contrary result.” 97 So.2d at 199. The record in the instant case is completely devoid of any
substantial competent evidence in support of the City’s refusal to grant tax exemptions to
qualified applicants. Second, City of Hialeah states that mandamus is proper where there is “a
failure to do the act as the law requires” and “no actual exercise in good faith of the judgment or
discretion vested.” Jd. at 199. The evidence in the record demonstrates the City’s blatant
refusal to act supports resort to mandamus); Hospital v. Joint Committee, 234 N.C. 673 (1952)
(reiterating control of discretionary act is permitted via mandamus where discretion has been
abused).
* See Alger v. Dept. of Labor and Indus., 181 Vt. 309, 323 (2006) (granting mandamus where
department had discretion in how it enforced housing code but its wholesale failure to enforce
code was arbitrary abuse of power that amounted to failure to comply with its legal duties).
Pardo Gainsburg, PL + 200 Southeast First Street, Suite 700 + Miami, Florida 33131346 NW 29" Street, LLC, d/b/a Museo Vault, et al. v. City of Miami, et al.
Case No. 13-37260 CA 01, Page 9
refusal to follow the requirements of the Ordinance and its lack of good faith in its strategy of
delaying action until the Ordinance expired. Each of these separate grounds is examined below.
a. Regardless of Whether the City’s Actions are Legislative or Judicial in
Nature, the City’s Records Do Not Reflect Any Substantial Competent
Evidence Supporting Its Refusal to Comply with the Ordinance or Its
Refusal to Recommend Qualified Applicants for Approval, Resulting in
De Facto Denials
Whether the City’s actions are legislative or judicial does not change the outcome of this
case. The City has no evidence of record to support its de facto denials of all Class Members’
applications for tax exemptions. An analysis of the standard of proof for legislative versus
judicial actions by a municipality is instructive to the Court’s analysis in this case.
Under an extensive body of case law,” a governing body’s /egislative action can be
controlled by mandamus if the challenged action was not “fairly debatable.” A legislative
action is “fairly debatable” if it can be said that such decision “is open to dispute on grounds that
make sense” and that “reasonable persons could differ as to its propriety.” Payne v. City of
Miami, 52 So. 3d 707, n. 8 (Fla. 3d DCA 2010). This means that the decision is upheld if the
legislative action is supported by competent substantial evidence in the record before the
legislative body. See, e. g. Miles v. Dade County, 260 So. 2d 553 (Fla. 3d DCA 1972) (“Where
the reasonableness of a zoning change effected by legislative action of a municipality or county
* See, e.g, Town of Indianatlantic v. Nance, 400 So. 2d 37 (Fla. 5" DCA 1981); Hasam Realty
Corp. v. City of Hallandale, 393 So. 2d 561 (Fla. 4° DCA 1981); City of Boca Raton v. Boca
Villas Corp., 371 So. 2d 154 (Fla. 4" DCA 1979); Smith v. City of West Palm Beach, 756 So. 2d
166 (Fla. 4" DCA 2000); City of Miami v. Wysong, 217 So. 2d 603 (Fla. 3d DCA 1969); Dade
County v. United Resources, Inc., 374 So. 2d 1046 (Fla. 3d DCA 1979); City of North
Lauderdale v. SMM Properties, Inc., 825 So. 2d 343 (Fla. 2002), Quietwater Entertainment, Inc.
vy. Escambia County, 890 So. 2d 525 (Fla. 1* DCA 2005); Island Inc. v. City of Bradenton
Beach, 884 So. 2d 107 (Fla. 2d DCA 2004). In City of Miami Beach y. Lincoln Investments,
Inc., 214 So. 2d 496, 498 (Fla. 3d DCA 1968), the case cited by the City in its reply brief, the
court denied mandamus because it found that the municipality’s denial of a liquor license was
Pardo Gainsburg, PL + 200 Southeast First Street, Suite 700 + Miami, Florida 33131346 NW 29" Street, LLC, d/b/a Museo Vault, et al. v. City of Miami, et al.
Case No. 13-37260 CA 01, Page 10
board was fairly debatable and the decision thereon had adequate evidentiary support, a court
called upon for review thereof should not negate the action by substituting its judgment for that
of the legislative body”); Bessemer Properties, Inc. v. Miami Shores Village, 110 So. 2d 87 (Fla.
3d DCA 1959) (stating generally that where there is no basis whatever for zoning limitation, then
restriction is arbitrary and unreasonable and court is justified in upsetting ordinance), A/lapattah
Community Ass'n Inc. of Florida v. City of Miami, 379 So. 2d 387 (Fla. 3d DCA 1980)
(quashing city rezoning ordinance where substantial competent evidence in record was contrary
to finding that ordinance was necessary to safeguard neighborhood from heavy traffic).
If the legislative action is not fairly debatable, or is not supported by the competent
substantial evidence in the record, then Florida courts find that the governmental action taken is
arbitrary under the abuse of discretion standard used to issue writs of mandamus. Thus, the
fairly debatable standard for legislative acts and the abuse of discretion standard for mandamus
provide the framework for this case. See, e.g., Hasam Realty Corp. v. City of Hallandale, 393
So. 2d 561 (Fla. 4" DCA 1981) (recognizing that mandamus is proper where legislative body
abuses its discretion but denying mandamus in that particular case because substantive testimony
demonstrated that action was not arbitrary); State ex rel. Florida Indus. Commission v. Willis,
124 So. 2d 48 (Fla. 1 DCA 1960) (holding that mandamus lies where administrative agency
arbitrarily refused to give consideration to application for refund of taxes)
Legislative action results in the formulation of a general rule of policy and prescribes
what the rule or requirement shall be with respect to future acts. A judicial action results in the
application of a general rule of policy and determines the rules of law applicable and the rights
affected by them, in relation to past transactions. Martin County v. Yusem, 690 So. 2d 1288,
not motivated by bias and political reasons.
Pardo Gainsburg, PL + 200 Southeast First Street, Suite 700 + Miami, Florida 33131346 NW 29" Street, LLC, d/b/a Museo Vault, et al. v. City of Miami, et al.
Case No. 13-37260 CA 01, Page 11
1295 (Fla. 1997). In deference to the policymaking function of a board when acting in a
legislative capacity, a board's legislative actions will be sustained as long as they are fairly
debatable. On the other hand, rulings of a board acting in its quasi-judicial capacity will be
upheld only if they are supported by substantial competent evidence. /d@ (citations omitted)
See, e.g., Yusem, 690 So. 2d at 1294 (holding that “amendments to a comprehensive plan are
legislative decisions subject to the fairly debatable rule”)
The City’s actions under the Ordinance in this case arguably could be categorized as
judicial or legislative. The City’s role could be judicial because the City did not formulate the
policy - the voters did, by voting for an ordinance that would grant tax exemptions to business
owners who made investments in depressed neighborhoods. The City’s duty was the
application of that policy as codified in the Ordinance. By contrast, the City’s action (or
inaction) under the Ordinance could be legislative because the Ordinance mandates that, for each
applicant granted a tax exemption, the City must create an ordinance formalizing the tax
exemption. Creating an ordinance is a legislative act. See section 56-118 of the Ordinance
Whether the City’s actions under this Ordinance amounted to judicial or legislative action
is largely academic, however, because either way, the City’s action/inaction must be supported
by substantial competent evidence. The two standards, “fairly debatable” and “substantial
competent evidence,” are not dissimilar. In Zown of Indialantic v. Nance, 400 So.2d 37, 40
(Fla. 5th DCA 1981), approved, 419 So.2d 1041 (Fla.1982), a legislative zoning case, the court
stated:
The DeGroot “competent substantial evidence” standard of review of
quasi-judicial action effectively provides the same standard the “fairly debatable”
test provides for review of legislative municipal zoning action: For the action to
be sustained, it must be reasonably based in the evidence presented. The two
concepts have been blurred; for example, in Bell v. City of Sarasota, 371 So.2d
Pardo Gainsburg, PL + 200 Southeast First Street, Suite 700 + Miami, Florida 33131346 NW 29" Street, LLC, d/b/a Museo Vault, et al. v. City of Miami, et al.
Case No. 13-37260 CA 01, Page 12
525 (Fla. 2d DCA 1979), the court utilized both the competent substantial
evidence standard and the “fairly debatable” standard to decide a zoning variance
issue....By whatever name it is called, the task of the court reviewing a zoning
variance decision is to insure that the authority's decision is based on evidence a
reasonable mind would accept to support a conclusion. Compare DeGroot, 95
So.2d at 916, with Wolff v. Dade County, 370 So.2d at 841-842. If there was such
evidence presented, the authority's determination must stand. Martin v. First
Apostolic Church, 321 So.2d 471 (Fla. 4th DCA 1975).
Smith, 756 So. 2d at 167. (Emphasis added) Competent evidence is evidence sufficiently
relevant and material to the ultimate determination “that a reasonable mind would accept it as
adequate to support the conclusion reached.” DeGroot v. Sheffield, 95 So.2d 912, 916 (Fla.1957).
Substantial evidence is evidence that provides a factual basis from which a fact at issue may
reasonably be inferred. /d.; Metropolitan Dade County v. Blumenthal, 675 So.2d 598, 608 (Fla
3d DCA 1995); see also Pollard v. Palm Beach County, 560 So.2d 1358, 1359-60 (Fla. 4th DCA
1990) (“evidence relied upon to sustain the ultimate finding should be sufficiently relevant and
material that a reasonable mind would accept it as adequate to support the conclusion reached.
To this extent the ‘substantial’ evidence should also be ‘competent.’”).
The fairly debatable standard and competent substantial evidence threshold often arise in
the context of zoning or taxing decisions, which are legislative. For example, in City of North
Lauderdale v. SMM Properties, Inc., 825 So. 2d 343 (Fla. 2002), the city adopted an ordinance
to fund an emergency medical services program through a special assessment levied on property
owners. /d. at 344. The special assessment could only be deemed valid if it provided a special
benefit to the assessed property and the assessment were properly apportioned. /d. at 345. The
Florida Supreme Court stated that it traditionally deferred to a legislative body's determination
“unless the determination is arbitrary.” /d. at 347. The court held that the city's determination
was “arbitrary” because although the city made general findings in the ordinance as to a special
Pardo Gainsburg, PL + 200 Southeast First Street, Suite 700 + Miami, Florida 33131346 NW 29" Street, LLC, d/b/a Museo Vault, et al. v. City of Miami, et al.
Case No. 13-37260 CA 01, Page 13
benefit, “there was nothing more in the record to support these findings.” /d. at 348. (Emphasis
added) “Competent, substantial evidence does not exist to support the City's findings of special
benefit. There is no evidence of the type of benefits that inure to property from the provision of
emergency medical services, no studies were conducted by the City documenting any specific
special benefit, and there is no testimony or expert opinion indicating how the portion of the
assessment providing for emergency medical services specially benefits real property.” Jd.
The special assessment was disallowed. See also City of Miami v. Wysong, 217 So. 2d 603, 605
(Fla. 3d DCA 1969) (affirming finding that distance limitation between gas stations in city
ordinance was not fairly debatable, and therefore, was invalid where city presented no evidence
a8 to rationale for distance requirements), Island, Inc. v. City of Bradenton Beach, 884 So. 2d
107, 108 (Fla. 2d DCA 2004), (city’s denial of property owners’ proposed amendments to city's
comprehensive plan was not fairly debatable where city failed to rebut property owners’
evidence that property did not meet definition of preservation; appellate court granted
amendment).
In each of the above-cited cases, a city acted in its legislative capacity. In each case, the
court invalidated the city’s action, though discretionary, because there was no competent
substantial evidence in the record to demonstrate that the action was fairly debatable, was not
arbitrary, or was not an abuse of the city’s legislative discretion. These cases are
distinguishable from those in which courts let stand legislative acts that were supported by
evidence in the record before the decision-making body.®
° See, e.g. Smith v. City of West Palm Beach, 756 So. 2d 166 (Fla. 4" DCA 2000) (finding
substantial competent evidence to support city’s decision to deny zoning variance under fairly
debatable standard); Dade County v. United Resources, 374 So. 2d 1046 (Fla. 3d DCA 1979)
(competent substantial evidence showed that resolution was fairly debatable); Miami-Dade
Pardo Gainsburg, PL + 200 Southeast First Street, Suite 700 + Miami, Florida 33131346 NW 29" Street, LLC, d/b/a Museo Vault, et al. v. City of Miami, et al.
Case No. 13-37260 CA 01, Page 14
The fairly debatable/ substantial competent evidence standard fits squarely with City of
Hialeah v. Florida, supra. 1n City of Hialeah, the Third District stated that a government actor
“may not act arbitrarily and unwarrantably or in disregard of evidence clearly and unmistakably
pointing to a contrary result,” and thus, mandamus was proper where “no evidence” supported
the city’s refusal to replat an alley as requested by the petitioner. 97 So. 2d at 199. (Emphasis
added). City of Hialeah does not expressly state that the city’s discretionary refusal was not
“fairly debatable.” But by predicating its affirmance of the mandamus relief on the lack of
evidence to support the city’s refusal, the Third District acted consistently with the fairly
debatable/ substantial competent evidence rule.
In the instant case, the City never made any decision whatsoever as to any Class
Member’s application, and therefore, no determinations as to the applications were ever
rendered. The City’s inaction essentially effected a denial of all of the applications.
Consequently, the Court should consider whether any competent evidence in the City’s record
substantiates the City’s de facto denials. No such supporting evidence exists.”
Nowhere in the City’s documents does the City Manager indicate why he withdrew 12
County v. Church & Tower, Inc., 715 So. 2d 1084, 1088 (Fla. 3d DCA 1998) (where board of
county commissioners had discretion under historic preservation ordinance to award historic
designation status to applicants, board’s finding was upheld because board’s ruling was
consistent with legislative intent and was supported by substantial, competent evidence); Clark
v. City of Shreveport, 655 So. 2d 617, 619 (2d. Cir. App. La. 1995) (granting mandamus where
board failed to grant variance: ‘om the record there appears to be no reasonable justification”
for denial... though “board expressed concerns” and “articulat{ed] valid land use considerations
such as traffic impact, parking concerns and hours of operation, [s]uch an articulation does not
appear in the record”).
7 Moreover, because the City never actually issued a denial as to any Class Member’s
application, the Class Members could not seek an appeal under §56-117. As discussed further
below, the Ordinance’s appeal process offers no appeal option where the City refuses to approve
or deny an application, and consequently, never issues a denial, leaving applicants with no
recourse but to seek redress from the Court, as they do now.
Pardo Gainsburg, PL + 200 Southeast First Street, Suite 700 + Miami, Florida 33131346 NW 29" Street, LLC, d/b/a Museo Vault, et al. v. City of Miami, et al.
Case No. 13-37260 CA 01, Page 15
applications from City Commission review after the applications were scheduled for review by
the Commission on September 16, 2010. (Exhibit 12)* (Mensah depo, p. 79, 124) (Cert Order,
p. 5) Nowhere in any correspondence with any Class Members or their representatives does
the City refuse to review any applications or state that approval could not be granted for any
particular reason. Nowhere in the City’s documents does the City state that it is not
implementing the Program and justifying that decision. With regard to Museo in particular, the
City never told Museo that its application did not qualify for the exemption or that Museo was
otherwise not eligible. (Aff. Frienser ]16)
According to section 56-112 of the Ordinance, “[t]he granting and the term of the
exemption shall be determined by the city commission, in its discretion, after considering the
factors outlined hereinbelow.” (Emphasis added). These factors consisted primarily of (a)
whether the applicant increased its employment roll by five or more full time jobs; (b) whether
the applicant show the improvements were made to its property; (c) whether the applicant is
current on the payment of its taxes; and (d) whether the applicant paid the $100 application fee.
Section 56-113 and 56-114. But despite these guidelines, which /imit the City’s discretion to
factors that can be supported by competent, substantive evidence, there is no substantial,
competent evidence to support the City’s inaction/denials of the applications.” (Cert Order, p.
5)
8 Exhibit numbers cited herein correspond to those contained in Plaintiffs’ Statement of Facts,
filed simultaneously with this Motion
° Museo’s broad request for production to the City included all communications and documents
between the City and any applicant, all internal City communications and documents, and all
communications and documents between the City and the City Commission, City
Commissioners, or the County pertaining in any manner to the Ordinance or any application.
Though the City produced nearly 2400 documents, nothing produced substantiated the basis for
the City’s failure to approve Museo’s application or that of any other Class Member.
Pardo Gainsburg, PL + 200 Southeast First Street, Suite 700 + Miami, Florida 33131346 NW 29" Street, LLC, d/b/a Museo Vault, et al. v. City of Miami, et al.
Case No. 13-37260 CA 01, Page 16
In fact, unrefuted and substantial, competent evidence exists to support a finding that the
City considered certain applicants qualified for exemptions and that such tax exemptions should
have been granted. On April 23, 2009, Marcus James, project manager for the Office of the
City Manager and Economic Initiatives, emailed the City legal department and requested that the
City attorneys draft ordinances for the 12 businesses for proposal to the City Commission.
(Exhibits 6 and 8) At about the same time, May 29, 2009, the City calculated the precise dollar
amount of the exemptions that the City would forego by granting those 12 applications.
(Exhibit 8) Those calculations reached the City CFO Larry Spring, among others. None of
these City personnel ever indicated that the exemptions could not or would not be granted. On
February 25, 2010, spreadsheets listing the amount of tax exemptions were provided directly to
the City Manager. (Exhibit 8) Notwithstanding the significant seven-figure amount calculated
for the 12 applicants, nothing in the record suggests that the amount was a basis for the City’s
failure or refusal to recommend the applications and to present them to the City Commission.
Rather, the City scheduled the applications for hearing before the City Commission. On
September 16, 2010, the City Commission, without any explanation, withdrew the applications
during the meeting.
The City’s failure to make any decision as to these 12 applications and the other Class’s
applications, thereby equating to a wholesale denial without any evidence to support refusal of
the tax exemptions, should be held as arbitrary and illegal by this Court. Caber Systems, Inc. v.
Dept. of General Servs., 530 So. 2d 325 (Fla. 1‘ DCA 1988) (whether decision of state agency,
which had “wide discretion” to accept or reject bids, to reject all bids is arbitrary or capricious is
decided upon competent substantial evidence at time decision is rendered)
Furthermore, any contention that the City properly exercised its discretion not to grant
Pardo Gainsburg, PL + 200 Southeast First Street, Suite 700 + Miami, Florida 33131346 NW 29" Street, LLC, d/b/a Museo Vault, et al. v. City of Miami, et al.
Case No. 13-37260 CA 01, Page 17
applications under the Ordinance based on City finances must be rejected because no evidence in
the records indicates that the Ordinance could not be implemented based on the City’s available
funds. Section 56-112 states: “The exemption shall not be available where its application
would cause an impairment of the city’s debt or pledged revenues.” However, the City has not
presented any evidence of its inability to approve any applications and to grant any tax
exemptions because such tax exemptions would impair the City’s debts or pledged revenues.
During discovery, Museo asked the City to produce:
25 Any and all Documents Relating To any determination that granting ad valorem tax
exemptions would cause impairment of the City’s debt or pledged revenues.
The City’s Answer: None.
Thus, the City has no evidence of any such impairment. No such evidence was presented to the
City Commission as a basis for refusing to approve tax exemptions at any duly noticed City
Commission meeting and no such evidence was produced to Plaintiffs in this lawsuit.
To the contrary, competent, substantial, and unrefuted evidence shows that when the City
prepared draft ordinances for the 12 Class members in 2009, the City proposed a plan for paying
back tax exemptions to those qualified applicants’? for previous years, then totaling about $2.5
million, by providing future tax credits. (Exhibit 9) City attorney Julie Bru’s July 7, 2009
legal opinion was that it would be proper to credit the $2.5 million back to the 12 businesses.
(Exhibit 6) Her November 23, 2009 legal opinion reiterated that the City had authority under
the Ordinance to grant qualified applicants credits against future taxes as a means of reimbursing
past due exemptions. (Exhibit 3) On May 29, 2010, Marcus James asked the City attorney how
to handle tax exemptions beyond payment after the first year. (Exhibit 9) James’s email
'© These were the same 12 applications that were scheduled for the September 10, 2010 City
Pardo Gainsburg, PL + 200 Southeast First Street, Suite 700 + Miami, Florida 33131346 NW 29" Street, LLC, d/b/a Museo Vault, et al. v. City of Miami, et al.
Case No. 13-37260 CA 01, Page 18
reflects the City’s plan to pay the first year of exemptions out of pocket and to provide tax
exemption for subsequent years through other means, such as the future credits previously
proposed (Exhibit 9) and which City attorney Julie Bru authorized. These documents, along
with the City’s lack of any evidence that the tax exemptions would have impaired the City’s debt
or pledged revenues, dispel any contention that the City could not provide the tax exemptions in
2009 or at any other time. The City also had no evidence to show that the City, well recovered
from the recession and enjoying a several years long new development boom, could not provide
those tax exemptions now.'!
The City has shirked its obligations to provide tax exemptions for
more than a decade. There is no basis now to allow such an abdication of the City‘s
responsibilities to continue where the City has ample financial ability to remedy its wrongful
disregard for the Ordinance
The City’s provision of a tax exemption to one applicant, DDR, to the exclusion of any
other applicant, further highlights the City’s arbitrary and capricious nature and abuse of
discretion in failing/refusing to grant any tax exemptions without any evidence in the record to
support the City’s actions. DDR was the only applicant to receive a review of its application, a
recommendation to the City Commission for approval, a scheduling of its application for review
by the City Commission, and the passage of an ordinance granting the exemption. Nowhere in
the record is there any explanation for DDR’s special treatment separate and apart from the other
Class Members, whose applications were systematically ignored. Courts have held in various
Commission meeting but were then withdrawn from consideration.
"" The City of Miami’s 2015 Comprehensive Annual Financial Report, dated March 31, 2016,
demonstrates the City’s net increases in its financial positioning and hundreds of millions of
dollars in — surplus. The 225 page Report can be viewed online at:
http://www.miamigov.com/finance/CAFR/F Y 14%20City%200f%20Miami%20CAER pdf.
Courts may take judicial cognizance of all public documents and public records. Conyers v.
Pardo Gainsburg, PL + 200 Southeast First Street, Suite 700 + Miami, Florida 33131346 NW 29" Street, LLC, d/b/a Museo Vault, et al. v. City of Miami, et al.
Case No. 13-37260 CA 01, Page 19
contexts that a municipality’s disparate discretionary decisions as to similarly situated petitioners
without rational reasoning constitute arbitrariness or caprice. See, e.g., Permenter v. Younan, 159
Fla, 226 (Fla, 1947) (where municipality had discretion to grant or deny liquor licenses based on
applicant’s personal fitness and moral character, municipality did not have arbitrary discretion to
discriminate between applicants by granting license to one and refusing it to another without
good cause and mandamus would lie where licensing authority abused its discretion or acted
arbitrarily). '* These cases support a finding that, as a matter of law, the City arbitrarily
exercised its discretionary power by granting a tax exemption to DDR without any competent
evidence in the record for that entity’s special treatment. This Court should find, as a matter of
law and based on the undisputed facts, that qualified Class Members are entitled to the same
grant of a tax exemption that was afforded to DDR.
b Mandamus is Proper because the City Did Not Exercise in Good Faith the
Judgment or Discretion Vested in It by the Ordinance
State, 123 So. 817 (Fla. 1929).
” See also, Clark vy. City of Shreveport,.5/10/95), 655 So.2d 617, 622 (La.App.2d Cir. 1995)
(“Where permits are granted in similar situations and refused in others, the refusal to grant a
permit may constitute non-uniform application of zoning ordinances that is arbitrary and
unreasonable”); Matter of c/o Hamptons, LLC v. Rickenbach, 950 N.Y.S.2d 182 (2012) (denial
of special use application was arbitrary and capricious where petitioners established that all
standards of relevant zoning ordinance were met and that their application was virtually identical
to that of similarly situated property owner in same zoning district whose application for same
special use permit was granted); Zhao v. Department of Justice, 265 F.3d 83, 95-97 (2nd
Cir.2001) (holding that failure to explain decision adequately provides grounds for reversal and
stating “application of agency standards in a plainly inconsistent manner across similar situations
evinces such a lack of rationality as to be arbitrary and capricious”), Village of Barrington, Ill. v.
Surface Transp. Bd., 636 F.3d 650, 660 (D.C.C. 2011) (despite government agency’s discretion
to interpret statute, agency’s interpretation “deserves no deference” if agency “simply pick[s] a
permissible interpretation out of a hat”), City of Hueytown v. Jiffy Chek Co. of Alabama, 342
So.2d 761, 762 (Ala.1977), (“[t]he uncontradicted evidence showfed that] Jiffy Chek [wa]s
situated no differently than the other merchants who were issued table wine licenses by the
City....yet only Jiffy Chek ha[d] been denied a license”... An individual cannot be subjected to
[arbitrary] exercise of governmental powers.”) (citations omitted).
Pardo Gainsburg, PL + 200 Southeast First Street, Suite 700 + Miami, Florida 33131346 NW 29" Street, LLC, d/b/a Museo Vault, et al. v. City of Miami, et al.
Case No. 13-37260 CA 01, Page 20
If an “official abuses [his/her] discretion so as to amount to a failure to do the act as the
law requires, there has been in fact no actual exercise in good faith of the judgment or discretion
vested in the officer and mandamus is a proper remedy” City of Hialeah, 97 So.2d at 199.
Under Section 56-116 of the Ordinance, the Class had the legal right to have its applications
considered by the City Commission. Nevertheless, the City Commission evaded its positive
duty to consider the evidence of the Class Members’ qualifications. Because the City
Commission abused its discretion by blatantly disregarding its affirmative obligations, this Court
has the authority to issue a writ of mandamus as a proper remedy to compel the City
Commission to provide tax exemptions to qualified Class members pursuant to the Ordinance.
Grounds for finding an abuse of the City’s discretion are demonstrated, in part, by emails
between the City and applicants under the Ordinance. These communications evidence the
City’s bad faith tactic of stringing applicants along with false assurances that the City would
follow the Ordinance. Since 2005, Herbert Friesner, principal of Economic Development
Consultants, Inc., which submitted applications on behalf of numerous Class Members, including
Museo, made countless pleas to the City to hear and to approve applications. Mr. Friesner’s
years-long campaign, consisting of in-person meetings with City officials, including the Mayor
himself, as well as phone calls, emails, and letters, (Exhibit 15), has only been met with
misleading promises. (Aff. Friesner §10-16) For example, on July 21, 2006 - eight and a half
years ago — Marcus James of the City’s Department of Economic Development apologized for
the lapse in communication concerning the applications submitted by Mr. Friesner,
demonstrating that Mr. Friesner’s requests for action had already been ongoing for some time.
Mr. James states that his goal is to create a much smoother environment when it comes to tax
abatement applications (going forward). (Exhibit 16 — Doc PL 92) But the evidence shows
Pardo Gainsburg, PL + 200 Southeast First Street, Suite 700 + Miami, Florida 33131346 NW 29" Street, LLC, d/b/a Museo Vault, et al. v. City of Miami, et al.
Case No. 13-37260 CA 01, Page 21
that the City’s actual goal going forward was only continued systematic delay and neglect.
On January 11, 2010, Mr. Friesner complained to City representative Eric Duran that
despite his (Mr. Friesner’s) meeting with Commissioner Sarnoff, City CFO Larry Spring, and
Marcus James, when Mr. Friesner was assured that the City Commission would consider the
applications the next month, nothing occurred. (Exhibit 16 — PL Doc 08) Three months later,
on April 5, 2010, Museo representative David Lombardi emailed City representative Peter
Ehrlich and stated that Ehrlich had attended a meeting with Commissioner Sarnoff and the
Mayor, during which the Mayor assured Museo that applications had been approved and would
be heard by the City Commission, but again, no action was taken. (Exhibit 16 - Doc PL 30)
Two years later, on April 10, 2012, Mr. Friesner emailed City Management and Budget Director
Daniel Alfonso and stated that Mr. Friesner had met with the Mayor several times over the past
three years, the Mayor had assured him that the applications would be heard by the City
Commission, and yet the applications were withdrawn from consideration without explanation.
(Exhibit 16 - Doc PL 12) In meeting after meeting, the City told the applicants that the City
would act on their applications. But again and again, nothing happened. Multiple emails
portray the City’s modus operandi of lip service and avoidance.
Importantly, the City never told Mr. Friesner, Museo, or any applicant, based on the
record of communications from the City, that the City would not, in its discretion, consider for
approval or denial any applications. Nor did the City indicate that, in its discretion, it was
denying all applications. The City never gave any reason whatsoever for refusing to grant tax
exemptions. (Aff. Friesner §15) To the contrary, the City continued to accept applications as late
Pardo Gainsburg, PL + 200 Southeast First Street, Suite 700 + Miami, Florida 33131346 NW 29" Street, LLC, d/b/a Museo Vault, et al. v. City of Miami, et al.
Case No. 13-37260 CA 01, Page 22
as May 2011’? (and perhaps later) and continued to cash the applicants’ non-refundable $100
checks, knowing full well the City had no intention to process them, let alone present them for
approval to the City Commission. The City also wrote emails dating from 2012 in which the
City continued to promise applicants that their applications would be heard by the Commission.
(Exhibit 16 - Doc PL 19, 33, 34, 38, 40) But again, the City did nothing. These actions show
the City’s abuse of its discretion and justify this Court’s order that tax exemptions be granted to
the Class Members based on their qualifying applications.
Preview
Filing # 41251224 E-Filed 05/09/2016 03:42:52 PM IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA 346 NW 29" Street, LLC and others GENERAL JURISDICTION DIVISION similarly situated, Plaintiffs, CASE NO.: 13-037260 CA 01 vs. CITY OF MIAME, a Florida municipal corporation, TOMAS REGALADO, in his official capacity as Mayor, JOHNNY MARTINEZ, in his official capacity as City Manager, WILFREDO GORT, in his official capacity as City Commissioner, MARC SARNOFF, in his official capacity as City Commissioner, FRANK CAROLLO, in his official capacity as City Commissioner, FRANCIS SUAREZ, in his official capacity as City Commissioner, and KEON HARDEMON, in his official capacity as City Commissioner. Defendants. / CERTIFIED CLASS’S AMENDED MOTION FOR SUMMARY JUDGMENT ON COUNTS 1 AND 2 AS TO LIABILITY Plaintiff, 346 NW 29" Street, LLC, d/b/a Museo Vault, (“Museo”) and the class of Plaintiffs certified by this Court pursuant to the Court’s April 28, 2015, Order (hereinafter, the “Class”), by and through undersigned counsel, and pursuant to Rule 1.510, Fla. R. Civ. P., move for summary judgment on Counts 1 and 2 of their Complaint against the City of Miami and various City officials, including the City Commission members (collectively, the “City”) with regard to the City’s liability.'_ In support, the Class shows the following INTRODUCTION ' The issues of each Class member’ s qualifications under the Ordinance and amount of damages346 NW 29" Street, LLC, d/b/a Museo Vault, et al. v. City of Miami, et al. Case No. 13-37260 CA 01, Page 2 This is a two-count Complaint against the City for declaratory relief (Count I) and writ of mandamus (Count II) to enforce the Miami Ordinance under Chapter 56, Article V of the Code of the City of Miami, entitled "Ad Valorem Tax Exemption for Enterprise Zone Businesses," originally enacted 12-12-02, and amended 6-22-06 (“Ordinance”). The Ordinance, which authorizes the City to grant tax exemptions on real property improvements and tangible personal property to qualified business owners in certain depressed neighborhoods (the “Enterprise Zone”), was approved by the voters in a referendum held on November 6, 2001. The purpose of the Ordinance is to encourage business owners to establish new businesses or to expand existing businesses in distressed neighborhoods by making significant investments, thereby increasing employment in the area, generating higher tax dollars for the City, and regentrifying blighted communities. (Cert Order, p. 2-3) Responding to the City’s incentives, Plaintiff Museo, like the other Class Members, developed a business in the Enterprise Zone that has employed local residents over the years, and has paid substantial taxes to the county, a portion of which has landed in the City’s coffers. It is this portion of the taxes designated for the City that should have been returned to Museo and the other Class Members under the Ordinance as a reward for their investment, risk, and contribution to community development. But while Museo and the other Class Members upheld their end of the bargain, the City failed or refused to recommend for approval or denial any Class Members’ applications, despite the mandate of the Ordinance. (Cert Order, p. 4) The City claims that enforcement of the Ordinance is discretionary, and therefore, the City could completely disregard the Ordinance and toss the applications into the trash. (M/ Dismiss Hrg Trans. p. 43, 45) This Court has already rejected that notion (Cert. Order p. 4), however, citing to section 56-116 of the Ordinance, which due are not in the scope of the instant motion. Pardo Gainsburg, PL + 200 Southeast First Street, Suite 700 + Miami, Florida 33131346 NW 29" Street, LLC, d/b/a Museo Vault, et al. v. City of Miami, et al. Case No. 13-37260 CA 01, Page 3 sets forth the City’s mandatory, not discretionary, duty to review and recommend applications, regardless of the ultimate decision to grant or deny tax exemptions. Moreover, the evidence shows that whatever discretion the City had was lost as a result of the City’s abuse of its discretion. Museo filed its application in 2009. Its application was never recommended for approval (or denial) by the City, despite Museo’s qualifications for tax exemptions under the Ordinance and Museo’s multiple requests to the City for review. Although the City promised to review the application, the undisputed evidence shows that the City did nothing The undisputed evidence shows the other Class Members fared no better than Museo. With only one exception, the City never placed any applications before the City Commission for approval, in contravention of the requirements of the Ordinance. The exception was an applicant whose entire tax exemption would have been only $109 per year and who agreed to waive its exemption. Therefore, the approval of that one applicant did not afford that business any exemption at all and the net result is that no qualified applicant received a tax exemption under the Ordinance. (Cert Order, p. 5) No evidence in the record indicates why the City treated this one applicant differently from the rest. Indeed, the City admits that it cannot even find Museo’s application, or any other Class Members’ applications for that matter, which only highlights the City’s contempt for its obligations under the Ordinance while the City continues to enjoy the fruits of the investments of the Class Members. The City’s bad faith is illustrated by its more than decade-long willful neglect of the applications, its empty promises to put qualified applications before the City Commission for approval, and its strategy of awaiting the expiration of the Ordinance to claim it no longer has authority to act. Pardo Gainsburg, PL + 200 Southeast First Street, Suite 700 + Miami, Florida 33131346 NW 29" Street, LLC, d/b/a Museo Vault, et al. v. City of Miami, et al. Case No. 13-37260 CA 01, Page 4 While the City’s blatant disregard for the law alone supports a finding that the City lost its discretion to deny qualified applications under the Ordinance, just as significant is the lack of substantial competent evidence in the record to support the City’s failure or refusal to grant any tax exemptions. This dearth of substantial competent evidence — either favoring or disfavoring granting tax exemptions — renders the City’s actions (or inactions) not fairly debatable but rather, capricious and arbitrary. Mandamus is the proper vehicle to rectify the capricious or abusive discretionary acts of governmental officials such as the City actors in this case. Based on this uncontroverted evidence, a writ of mandamus should be issued finding that Museo and the other Class Members, upon demonstration of their respective qualifications under the Ordinance, are entitled to the amount of tax exemptions due for each year they qualified under the Ordinance. The writ of mandamus should clarify that the Class Members are entitled to the amount of tax exemptions they would receive for future years so long as the Class Members continue to maintain their qualifications, for a total of 10 years, the maximum permitted by the Ordinance On April 28, 2016, this Court entered an order granting class certification. The City appealed. On January 27, 2016, the Third District Court of Appeal affirmed the class certification order without prejudice to the City’s right to raise again its statute of limitations defenses under §194.171 or §95.11, Florida Statutes, even though this Court had already found those defenses inapplicable. (Cert Order, p. 11-13) Thus, the instant motion addresses, among other things, the City’s statute of limitations defense. I. Standard of Review Pardo Gainsburg, PL + 200 Southeast First Street, Suite 700 + Miami, Florida 33131346 NW 29" Street, LLC, d/b/a Museo Vault, et al. v. City of Miami, et al. Case No. 13-37260 CA 01, Page 5 Summary judgment is proper “if the pleadings and summary judgment evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fla. R. Civ. P. 1.510(c). See Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). Summary judgment may be granted in declaratory judgment actions, see Blue Cross & Blue Shield of Fla., Inc. v. Steck, 778 So.2d 374 (Fla. 2d DCA 2001), and in actions for issuance of mandamus. Southfields of Palm Beach Polo and Country Club Homeowners Ass'n, Inc. v. McCullough, 111 So. 3d 283 (Fla. 4° DCA 2013). Here, the pleadings and supporting evidence of record demonstrate that there is no genuine issue of material fact and the undisputed evidence completely supports a ruling for the Class. Summary judgment on liability as to both counts is appropriate. See Rose v. Hansell, 929 So. 2d 22 (Fla. 3d DCA 2006); Wroy v. N. Miami Med. Ctr., Ltd., 937 So. 2d 1116 (Fla. 3d DCA 2006). II. Relief Sought A Declaratory Judgment The Class Members seek a declaratory judgment entitling them to approval of their applications under the Ordinance. Florida courts have specifically recognized declaratory actions as a proper vehicle for determining entitlement to ad valorem tax exemptions. Davis v. Gulf Power Corp., 799 So. 2d 298 (Fla. 1* DCA 2001). Museo and the Class have standing to bring this declaratory action. Chapter 86, Florida Statutes, governs declaratory actions and gives to circuit courts jurisdiction to “declare rights, status, and other equitable or legal relations whether or not further relief is or could be claimed.” § 86.011, Fla. Stat. (2014). As stated in section 86.021, Florida Statutes: Any person claiming to be interested or who may be in doubt about his or her rights under ...any regulation made under statutory authority, or by ntunicipal ordinance...and obtain a declaration of rights, status, or other equitable or legal Pardo Gainsburg, PL + 200 Southeast First Street, Suite 700 + Miami, Florida 33131346 NW 29" Street, LLC, d/b/a Museo Vault, et al. v. City of Miami, et al. Case No. 13-37260 CA 01, Page 6 relations thereunder (Emphasis added). The purpose of Chapter 86 is “to settle and to afford relief from insecurity and uncertainty with respect to rights, status, and other equitable or legal relations and is to be liberally administered and construed.” § 86.101, Fla. Stat. “A party is entitled to a declaration of rights where the ripening seeds of controversy make litigation in the immediate future appear unavoidable.” South Riverwalk Investments, LLC v. City of Ft. Lauderdale, 934 So.2d 620, 623 (Fla. 4" DCA 2006). Finally, “the existence of another adequate remedy does not preclude” declaratory relief. § 86.111, Fla. Stat. It is well settled that declaratory relief is appropriate where a party demonstrates: [T]here is a bona fide, actual, present practical need for declaration; that the declaration should deal with present, ascertained or ascertainable state of facts or present controversy as to a state of facts; that some immunity, power, privilege or right of complaining party is dependent on fact or law applicable to facts, that there is some person or persons who have, or reasonably may have actual, present, adverse and antagonistic interest in the subject matter, either in fact or law; that the antagonistic and adverse interest are all before the court by proper process or class representation and that the relief sought is not merely giving of legal advice by the courts or the answer to questions propounded from curiosity. Palumbo v. Moore, 777 So.2d 1177, 1178 (Fla. 5" DCA 2001) (quoting May v. Holley, 59 So.2d 636, 639 (Fla.1952)). The Complaint meets this test. The Class submitted applications to the City pursuant to the Ordinance, the City refused/failed to fulfill its legal duties under the Ordinance, and the Class suffered the loss of tax exemptions as a result. These allegations relate to the existence of an actual, bona fide, present dispute over the interpretation of the Ordinance and the City’s legal duties. Specifically, some key issues are decided by the claim for declaratory relief: (1) that the City violated the Ordinance by failing/refusing to recommend applications for approval or Pardo Gainsburg, PL + 200 Southeast First Street, Suite 700 + Miami, Florida 33131346 NW 29" Street, LLC, d/b/a Museo Vault, et al. v. City of Miami, et al. Case No. 13-37260 CA 01, Page 7 rejection by the City Commission (2) that the City be held liable for its dereliction of its duty to approve or deny applications and be required to make restitution to the Class Members for: (a) the amount of tax exemption to which each Class Member is entitled based on its qualifications in the year it filed its initial application; (b) the amount of tax exemption to which each Class Member is entitled based on its qualifications since the year after it filed its initial application, up to the present year and then into the future for a total of 10 years; and (c) interest on the amount of the foregoing outstanding tax exemptions.” These are justiciable issues ripe for declaratory judgment. Orange Cty. v. Expedia, Inc., 985 So. 2d 622 (Fla. s* Dc 2008), North Ridge Electrical, Inc. v. City of Sunrise, 63 So. 3d 937 (Fla. 4" DCA 2011) B. Mandamus Mandamus will lie even where an ordinance contains discretionary language if discretion regarding the City’s approval or denial of tax exemptions is erroneously exercised or abused If, in the attempted performance of discretionary acts, the official abuses the discretion so as to amount to a failure to do the act as the law requires, there has been in fact no actual exercise in good faith of the judgment or discretion vested in the officer and mandamus is a proper remedy. An official may not act arbitrarily and unwarrantably or in disregard of evidence clearly and unmistakably pointing to a contrary result and thereafter question the right to resort to mandamus to compel proper action on his part. City of Hialeah vy. Florida, 97 So0.2d 198, 199 (Fla. 3d DCA 1957). (Emphasis added) Thus, in City of Hialeah, the court concluded that “the arbitrary or capricious exercise of discretion conferred by law on an officer can or may be regulated by mandamus.”* /d. One recent case ? As indicated above, the ascertainment of qualifications and damages is not to be decided in this motion and will be the subject of later motions filed by the Class. > Other courts have ruled similarly. See Alger v. Dep't of Labor & Industry, 181 Vt. 309, 917 A.2d 508, 516-19 (Vt. 2006) (suggesting failure to implement building code is abuse of discretion permitting mandamus); Piller v. Village of Beecher, 381 N.E.2d 1209, 1210 (ill. App.1978); Corcoran vy. Village of Bennington, 266 A.2d 457, 463 (Vt. 1970) (concluding Pardo Gainsburg, PL + 200 Southeast First Street, Suite 700 + Miami, Florida 33131346 NW 29" Street, LLC, d/b/a Museo Vault, et al. v. City of Miami, et al. Case No. 13-37260 CA 01, Page 8 reinforces the justification for mandamus espoused in City of Hialeah: However, in 1999 this Court stated that an “arbitrary and capricious action is: based on personal, selfish, or fraudulent motives, or on false information, and is characterized by a lack of relevant and competent evidence to support the action taken.” Coyote Flats, L.L.C. v. Sanborn Co. Comm'rs, 1999 §.D. 87, § 14, 596 N.W.2d 347, 351 (citing Tri Co. Landfill Ass'n v. Brule Co., 535 N.W.2d 760, 764 (S.D.1995)). The language regarding what is to be considered “arbitrary and capricious” has devolved over time from Richards, 61 S.D. at 38-39, 245 N.W. at 905, which states: The discretion must be exercised under the established rules of law, and it may be said to be abused within the foregoing rule where the action complained of has been arbitrary or capricious, or based on personal, selfish, or fraudulent motives, or on false information, or on a total lack of authority to act, or where it amounts to an evasion of a positive duty, or there has been a refusal to consider pertinent evidence, hear the parties when so required, or to entertain any proper question concerning the exercise of the discretion, or where the exercise of the discretion is in a manner entirely futile and known by the officer to be so and there are other methods which if adopted would be effective. MG. Oil Co. v. City of Rapid City, 793 N.W.24 816 n.7 (S.D. 2011) (Emphasis by MG. Oi) 4 The City of Hialeah case provides two distinct bases for finding mandamus proper, either of which alone is sufficient to warrant issuance of a writ. First, City of Hialeah cites as grounds for mandamus an official’s acting “in disregard of evidence clearly and unmistakably pointing to a contrary result.” 97 So.2d at 199. The record in the instant case is completely devoid of any substantial competent evidence in support of the City’s refusal to grant tax exemptions to qualified applicants. Second, City of Hialeah states that mandamus is proper where there is “a failure to do the act as the law requires” and “no actual exercise in good faith of the judgment or discretion vested.” Jd. at 199. The evidence in the record demonstrates the City’s blatant refusal to act supports resort to mandamus); Hospital v. Joint Committee, 234 N.C. 673 (1952) (reiterating control of discretionary act is permitted via mandamus where discretion has been abused). * See Alger v. Dept. of Labor and Indus., 181 Vt. 309, 323 (2006) (granting mandamus where department had discretion in how it enforced housing code but its wholesale failure to enforce code was arbitrary abuse of power that amounted to failure to comply with its legal duties). Pardo Gainsburg, PL + 200 Southeast First Street, Suite 700 + Miami, Florida 33131346 NW 29" Street, LLC, d/b/a Museo Vault, et al. v. City of Miami, et al. Case No. 13-37260 CA 01, Page 9 refusal to follow the requirements of the Ordinance and its lack of good faith in its strategy of delaying action until the Ordinance expired. Each of these separate grounds is examined below. a. Regardless of Whether the City’s Actions are Legislative or Judicial in Nature, the City’s Records Do Not Reflect Any Substantial Competent Evidence Supporting Its Refusal to Comply with the Ordinance or Its Refusal to Recommend Qualified Applicants for Approval, Resulting in De Facto Denials Whether the City’s actions are legislative or judicial does not change the outcome of this case. The City has no evidence of record to support its de facto denials of all Class Members’ applications for tax exemptions. An analysis of the standard of proof for legislative versus judicial actions by a municipality is instructive to the Court’s analysis in this case. Under an extensive body of case law,” a governing body’s /egislative action can be controlled by mandamus if the challenged action was not “fairly debatable.” A legislative action is “fairly debatable” if it can be said that such decision “is open to dispute on grounds that make sense” and that “reasonable persons could differ as to its propriety.” Payne v. City of Miami, 52 So. 3d 707, n. 8 (Fla. 3d DCA 2010). This means that the decision is upheld if the legislative action is supported by competent substantial evidence in the record before the legislative body. See, e. g. Miles v. Dade County, 260 So. 2d 553 (Fla. 3d DCA 1972) (“Where the reasonableness of a zoning change effected by legislative action of a municipality or county * See, e.g, Town of Indianatlantic v. Nance, 400 So. 2d 37 (Fla. 5" DCA 1981); Hasam Realty Corp. v. City of Hallandale, 393 So. 2d 561 (Fla. 4° DCA 1981); City of Boca Raton v. Boca Villas Corp., 371 So. 2d 154 (Fla. 4" DCA 1979); Smith v. City of West Palm Beach, 756 So. 2d 166 (Fla. 4" DCA 2000); City of Miami v. Wysong, 217 So. 2d 603 (Fla. 3d DCA 1969); Dade County v. United Resources, Inc., 374 So. 2d 1046 (Fla. 3d DCA 1979); City of North Lauderdale v. SMM Properties, Inc., 825 So. 2d 343 (Fla. 2002), Quietwater Entertainment, Inc. vy. Escambia County, 890 So. 2d 525 (Fla. 1* DCA 2005); Island Inc. v. City of Bradenton Beach, 884 So. 2d 107 (Fla. 2d DCA 2004). In City of Miami Beach y. Lincoln Investments, Inc., 214 So. 2d 496, 498 (Fla. 3d DCA 1968), the case cited by the City in its reply brief, the court denied mandamus because it found that the municipality’s denial of a liquor license was Pardo Gainsburg, PL + 200 Southeast First Street, Suite 700 + Miami, Florida 33131346 NW 29" Street, LLC, d/b/a Museo Vault, et al. v. City of Miami, et al. Case No. 13-37260 CA 01, Page 10 board was fairly debatable and the decision thereon had adequate evidentiary support, a court called upon for review thereof should not negate the action by substituting its judgment for that of the legislative body”); Bessemer Properties, Inc. v. Miami Shores Village, 110 So. 2d 87 (Fla. 3d DCA 1959) (stating generally that where there is no basis whatever for zoning limitation, then restriction is arbitrary and unreasonable and court is justified in upsetting ordinance), A/lapattah Community Ass'n Inc. of Florida v. City of Miami, 379 So. 2d 387 (Fla. 3d DCA 1980) (quashing city rezoning ordinance where substantial competent evidence in record was contrary to finding that ordinance was necessary to safeguard neighborhood from heavy traffic). If the legislative action is not fairly debatable, or is not supported by the competent substantial evidence in the record, then Florida courts find that the governmental action taken is arbitrary under the abuse of discretion standard used to issue writs of mandamus. Thus, the fairly debatable standard for legislative acts and the abuse of discretion standard for mandamus provide the framework for this case. See, e.g., Hasam Realty Corp. v. City of Hallandale, 393 So. 2d 561 (Fla. 4" DCA 1981) (recognizing that mandamus is proper where legislative body abuses its discretion but denying mandamus in that particular case because substantive testimony demonstrated that action was not arbitrary); State ex rel. Florida Indus. Commission v. Willis, 124 So. 2d 48 (Fla. 1 DCA 1960) (holding that mandamus lies where administrative agency arbitrarily refused to give consideration to application for refund of taxes) Legislative action results in the formulation of a general rule of policy and prescribes what the rule or requirement shall be with respect to future acts. A judicial action results in the application of a general rule of policy and determines the rules of law applicable and the rights affected by them, in relation to past transactions. Martin County v. Yusem, 690 So. 2d 1288, not motivated by bias and political reasons. Pardo Gainsburg, PL + 200 Southeast First Street, Suite 700 + Miami, Florida 33131346 NW 29" Street, LLC, d/b/a Museo Vault, et al. v. City of Miami, et al. Case No. 13-37260 CA 01, Page 11 1295 (Fla. 1997). In deference to the policymaking function of a board when acting in a legislative capacity, a board's legislative actions will be sustained as long as they are fairly debatable. On the other hand, rulings of a board acting in its quasi-judicial capacity will be upheld only if they are supported by substantial competent evidence. /d@ (citations omitted) See, e.g., Yusem, 690 So. 2d at 1294 (holding that “amendments to a comprehensive plan are legislative decisions subject to the fairly debatable rule”) The City’s actions under the Ordinance in this case arguably could be categorized as judicial or legislative. The City’s role could be judicial because the City did not formulate the policy - the voters did, by voting for an ordinance that would grant tax exemptions to business owners who made investments in depressed neighborhoods. The City’s duty was the application of that policy as codified in the Ordinance. By contrast, the City’s action (or inaction) under the Ordinance could be legislative because the Ordinance mandates that, for each applicant granted a tax exemption, the City must create an ordinance formalizing the tax exemption. Creating an ordinance is a legislative act. See section 56-118 of the Ordinance Whether the City’s actions under this Ordinance amounted to judicial or legislative action is largely academic, however, because either way, the City’s action/inaction must be supported by substantial competent evidence. The two standards, “fairly debatable” and “substantial competent evidence,” are not dissimilar. In Zown of Indialantic v. Nance, 400 So.2d 37, 40 (Fla. 5th DCA 1981), approved, 419 So.2d 1041 (Fla.1982), a legislative zoning case, the court stated: The DeGroot “competent substantial evidence” standard of review of quasi-judicial action effectively provides the same standard the “fairly debatable” test provides for review of legislative municipal zoning action: For the action to be sustained, it must be reasonably based in the evidence presented. The two concepts have been blurred; for example, in Bell v. City of Sarasota, 371 So.2d Pardo Gainsburg, PL + 200 Southeast First Street, Suite 700 + Miami, Florida 33131346 NW 29" Street, LLC, d/b/a Museo Vault, et al. v. City of Miami, et al. Case No. 13-37260 CA 01, Page 12 525 (Fla. 2d DCA 1979), the court utilized both the competent substantial evidence standard and the “fairly debatable” standard to decide a zoning variance issue....By whatever name it is called, the task of the court reviewing a zoning variance decision is to insure that the authority's decision is based on evidence a reasonable mind would accept to support a conclusion. Compare DeGroot, 95 So.2d at 916, with Wolff v. Dade County, 370 So.2d at 841-842. If there was such evidence presented, the authority's determination must stand. Martin v. First Apostolic Church, 321 So.2d 471 (Fla. 4th DCA 1975). Smith, 756 So. 2d at 167. (Emphasis added) Competent evidence is evidence sufficiently relevant and material to the ultimate determination “that a reasonable mind would accept it as adequate to support the conclusion reached.” DeGroot v. Sheffield, 95 So.2d 912, 916 (Fla.1957). Substantial evidence is evidence that provides a factual basis from which a fact at issue may reasonably be inferred. /d.; Metropolitan Dade County v. Blumenthal, 675 So.2d 598, 608 (Fla 3d DCA 1995); see also Pollard v. Palm Beach County, 560 So.2d 1358, 1359-60 (Fla. 4th DCA 1990) (“evidence relied upon to sustain the ultimate finding should be sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusion reached. To this extent the ‘substantial’ evidence should also be ‘competent.’”). The fairly debatable standard and competent substantial evidence threshold often arise in the context of zoning or taxing decisions, which are legislative. For example, in City of North Lauderdale v. SMM Properties, Inc., 825 So. 2d 343 (Fla. 2002), the city adopted an ordinance to fund an emergency medical services program through a special assessment levied on property owners. /d. at 344. The special assessment could only be deemed valid if it provided a special benefit to the assessed property and the assessment were properly apportioned. /d. at 345. The Florida Supreme Court stated that it traditionally deferred to a legislative body's determination “unless the determination is arbitrary.” /d. at 347. The court held that the city's determination was “arbitrary” because although the city made general findings in the ordinance as to a special Pardo Gainsburg, PL + 200 Southeast First Street, Suite 700 + Miami, Florida 33131346 NW 29" Street, LLC, d/b/a Museo Vault, et al. v. City of Miami, et al. Case No. 13-37260 CA 01, Page 13 benefit, “there was nothing more in the record to support these findings.” /d. at 348. (Emphasis added) “Competent, substantial evidence does not exist to support the City's findings of special benefit. There is no evidence of the type of benefits that inure to property from the provision of emergency medical services, no studies were conducted by the City documenting any specific special benefit, and there is no testimony or expert opinion indicating how the portion of the assessment providing for emergency medical services specially benefits real property.” Jd. The special assessment was disallowed. See also City of Miami v. Wysong, 217 So. 2d 603, 605 (Fla. 3d DCA 1969) (affirming finding that distance limitation between gas stations in city ordinance was not fairly debatable, and therefore, was invalid where city presented no evidence a8 to rationale for distance requirements), Island, Inc. v. City of Bradenton Beach, 884 So. 2d 107, 108 (Fla. 2d DCA 2004), (city’s denial of property owners’ proposed amendments to city's comprehensive plan was not fairly debatable where city failed to rebut property owners’ evidence that property did not meet definition of preservation; appellate court granted amendment). In each of the above-cited cases, a city acted in its legislative capacity. In each case, the court invalidated the city’s action, though discretionary, because there was no competent substantial evidence in the record to demonstrate that the action was fairly debatable, was not arbitrary, or was not an abuse of the city’s legislative discretion. These cases are distinguishable from those in which courts let stand legislative acts that were supported by evidence in the record before the decision-making body.® ° See, e.g. Smith v. City of West Palm Beach, 756 So. 2d 166 (Fla. 4" DCA 2000) (finding substantial competent evidence to support city’s decision to deny zoning variance under fairly debatable standard); Dade County v. United Resources, 374 So. 2d 1046 (Fla. 3d DCA 1979) (competent substantial evidence showed that resolution was fairly debatable); Miami-Dade Pardo Gainsburg, PL + 200 Southeast First Street, Suite 700 + Miami, Florida 33131346 NW 29" Street, LLC, d/b/a Museo Vault, et al. v. City of Miami, et al. Case No. 13-37260 CA 01, Page 14 The fairly debatable/ substantial competent evidence standard fits squarely with City of Hialeah v. Florida, supra. 1n City of Hialeah, the Third District stated that a government actor “may not act arbitrarily and unwarrantably or in disregard of evidence clearly and unmistakably pointing to a contrary result,” and thus, mandamus was proper where “no evidence” supported the city’s refusal to replat an alley as requested by the petitioner. 97 So. 2d at 199. (Emphasis added). City of Hialeah does not expressly state that the city’s discretionary refusal was not “fairly debatable.” But by predicating its affirmance of the mandamus relief on the lack of evidence to support the city’s refusal, the Third District acted consistently with the fairly debatable/ substantial competent evidence rule. In the instant case, the City never made any decision whatsoever as to any Class Member’s application, and therefore, no determinations as to the applications were ever rendered. The City’s inaction essentially effected a denial of all of the applications. Consequently, the Court should consider whether any competent evidence in the City’s record substantiates the City’s de facto denials. No such supporting evidence exists.” Nowhere in the City’s documents does the City Manager indicate why he withdrew 12 County v. Church & Tower, Inc., 715 So. 2d 1084, 1088 (Fla. 3d DCA 1998) (where board of county commissioners had discretion under historic preservation ordinance to award historic designation status to applicants, board’s finding was upheld because board’s ruling was consistent with legislative intent and was supported by substantial, competent evidence); Clark v. City of Shreveport, 655 So. 2d 617, 619 (2d. Cir. App. La. 1995) (granting mandamus where board failed to grant variance: ‘om the record there appears to be no reasonable justification” for denial... though “board expressed concerns” and “articulat{ed] valid land use considerations such as traffic impact, parking concerns and hours of operation, [s]uch an articulation does not appear in the record”). 7 Moreover, because the City never actually issued a denial as to any Class Member’s application, the Class Members could not seek an appeal under §56-117. As discussed further below, the Ordinance’s appeal process offers no appeal option where the City refuses to approve or deny an application, and consequently, never issues a denial, leaving applicants with no recourse but to seek redress from the Court, as they do now. Pardo Gainsburg, PL + 200 Southeast First Street, Suite 700 + Miami, Florida 33131346 NW 29" Street, LLC, d/b/a Museo Vault, et al. v. City of Miami, et al. Case No. 13-37260 CA 01, Page 15 applications from City Commission review after the applications were scheduled for review by the Commission on September 16, 2010. (Exhibit 12)* (Mensah depo, p. 79, 124) (Cert Order, p. 5) Nowhere in any correspondence with any Class Members or their representatives does the City refuse to review any applications or state that approval could not be granted for any particular reason. Nowhere in the City’s documents does the City state that it is not implementing the Program and justifying that decision. With regard to Museo in particular, the City never told Museo that its application did not qualify for the exemption or that Museo was otherwise not eligible. (Aff. Frienser ]16) According to section 56-112 of the Ordinance, “[t]he granting and the term of the exemption shall be determined by the city commission, in its discretion, after considering the factors outlined hereinbelow.” (Emphasis added). These factors consisted primarily of (a) whether the applicant increased its employment roll by five or more full time jobs; (b) whether the applicant show the improvements were made to its property; (c) whether the applicant is current on the payment of its taxes; and (d) whether the applicant paid the $100 application fee. Section 56-113 and 56-114. But despite these guidelines, which /imit the City’s discretion to factors that can be supported by competent, substantive evidence, there is no substantial, competent evidence to support the City’s inaction/denials of the applications.” (Cert Order, p. 5) 8 Exhibit numbers cited herein correspond to those contained in Plaintiffs’ Statement of Facts, filed simultaneously with this Motion ° Museo’s broad request for production to the City included all communications and documents between the City and any applicant, all internal City communications and documents, and all communications and documents between the City and the City Commission, City Commissioners, or the County pertaining in any manner to the Ordinance or any application. Though the City produced nearly 2400 documents, nothing produced substantiated the basis for the City’s failure to approve Museo’s application or that of any other Class Member. Pardo Gainsburg, PL + 200 Southeast First Street, Suite 700 + Miami, Florida 33131346 NW 29" Street, LLC, d/b/a Museo Vault, et al. v. City of Miami, et al. Case No. 13-37260 CA 01, Page 16 In fact, unrefuted and substantial, competent evidence exists to support a finding that the City considered certain applicants qualified for exemptions and that such tax exemptions should have been granted. On April 23, 2009, Marcus James, project manager for the Office of the City Manager and Economic Initiatives, emailed the City legal department and requested that the City attorneys draft ordinances for the 12 businesses for proposal to the City Commission. (Exhibits 6 and 8) At about the same time, May 29, 2009, the City calculated the precise dollar amount of the exemptions that the City would forego by granting those 12 applications. (Exhibit 8) Those calculations reached the City CFO Larry Spring, among others. None of these City personnel ever indicated that the exemptions could not or would not be granted. On February 25, 2010, spreadsheets listing the amount of tax exemptions were provided directly to the City Manager. (Exhibit 8) Notwithstanding the significant seven-figure amount calculated for the 12 applicants, nothing in the record suggests that the amount was a basis for the City’s failure or refusal to recommend the applications and to present them to the City Commission. Rather, the City scheduled the applications for hearing before the City Commission. On September 16, 2010, the City Commission, without any explanation, withdrew the applications during the meeting. The City’s failure to make any decision as to these 12 applications and the other Class’s applications, thereby equating to a wholesale denial without any evidence to support refusal of the tax exemptions, should be held as arbitrary and illegal by this Court. Caber Systems, Inc. v. Dept. of General Servs., 530 So. 2d 325 (Fla. 1‘ DCA 1988) (whether decision of state agency, which had “wide discretion” to accept or reject bids, to reject all bids is arbitrary or capricious is decided upon competent substantial evidence at time decision is rendered) Furthermore, any contention that the City properly exercised its discretion not to grant Pardo Gainsburg, PL + 200 Southeast First Street, Suite 700 + Miami, Florida 33131346 NW 29" Street, LLC, d/b/a Museo Vault, et al. v. City of Miami, et al. Case No. 13-37260 CA 01, Page 17 applications under the Ordinance based on City finances must be rejected because no evidence in the records indicates that the Ordinance could not be implemented based on the City’s available funds. Section 56-112 states: “The exemption shall not be available where its application would cause an impairment of the city’s debt or pledged revenues.” However, the City has not presented any evidence of its inability to approve any applications and to grant any tax exemptions because such tax exemptions would impair the City’s debts or pledged revenues. During discovery, Museo asked the City to produce: 25 Any and all Documents Relating To any determination that granting ad valorem tax exemptions would cause impairment of the City’s debt or pledged revenues. The City’s Answer: None. Thus, the City has no evidence of any such impairment. No such evidence was presented to the City Commission as a basis for refusing to approve tax exemptions at any duly noticed City Commission meeting and no such evidence was produced to Plaintiffs in this lawsuit. To the contrary, competent, substantial, and unrefuted evidence shows that when the City prepared draft ordinances for the 12 Class members in 2009, the City proposed a plan for paying back tax exemptions to those qualified applicants’? for previous years, then totaling about $2.5 million, by providing future tax credits. (Exhibit 9) City attorney Julie Bru’s July 7, 2009 legal opinion was that it would be proper to credit the $2.5 million back to the 12 businesses. (Exhibit 6) Her November 23, 2009 legal opinion reiterated that the City had authority under the Ordinance to grant qualified applicants credits against future taxes as a means of reimbursing past due exemptions. (Exhibit 3) On May 29, 2010, Marcus James asked the City attorney how to handle tax exemptions beyond payment after the first year. (Exhibit 9) James’s email '© These were the same 12 applications that were scheduled for the September 10, 2010 City Pardo Gainsburg, PL + 200 Southeast First Street, Suite 700 + Miami, Florida 33131346 NW 29" Street, LLC, d/b/a Museo Vault, et al. v. City of Miami, et al. Case No. 13-37260 CA 01, Page 18 reflects the City’s plan to pay the first year of exemptions out of pocket and to provide tax exemption for subsequent years through other means, such as the future credits previously proposed (Exhibit 9) and which City attorney Julie Bru authorized. These documents, along with the City’s lack of any evidence that the tax exemptions would have impaired the City’s debt or pledged revenues, dispel any contention that the City could not provide the tax exemptions in 2009 or at any other time. The City also had no evidence to show that the City, well recovered from the recession and enjoying a several years long new development boom, could not provide those tax exemptions now.'! The City has shirked its obligations to provide tax exemptions for more than a decade. There is no basis now to allow such an abdication of the City‘s responsibilities to continue where the City has ample financial ability to remedy its wrongful disregard for the Ordinance The City’s provision of a tax exemption to one applicant, DDR, to the exclusion of any other applicant, further highlights the City’s arbitrary and capricious nature and abuse of discretion in failing/refusing to grant any tax exemptions without any evidence in the record to support the City’s actions. DDR was the only applicant to receive a review of its application, a recommendation to the City Commission for approval, a scheduling of its application for review by the City Commission, and the passage of an ordinance granting the exemption. Nowhere in the record is there any explanation for DDR’s special treatment separate and apart from the other Class Members, whose applications were systematically ignored. Courts have held in various Commission meeting but were then withdrawn from consideration. "" The City of Miami’s 2015 Comprehensive Annual Financial Report, dated March 31, 2016, demonstrates the City’s net increases in its financial positioning and hundreds of millions of dollars in — surplus. The 225 page Report can be viewed online at: http://www.miamigov.com/finance/CAFR/F Y 14%20City%200f%20Miami%20CAER pdf. Courts may take judicial cognizance of all public documents and public records. Conyers v. Pardo Gainsburg, PL + 200 Southeast First Street, Suite 700 + Miami, Florida 33131346 NW 29" Street, LLC, d/b/a Museo Vault, et al. v. City of Miami, et al. Case No. 13-37260 CA 01, Page 19 contexts that a municipality’s disparate discretionary decisions as to similarly situated petitioners without rational reasoning constitute arbitrariness or caprice. See, e.g., Permenter v. Younan, 159 Fla, 226 (Fla, 1947) (where municipality had discretion to grant or deny liquor licenses based on applicant’s personal fitness and moral character, municipality did not have arbitrary discretion to discriminate between applicants by granting license to one and refusing it to another without good cause and mandamus would lie where licensing authority abused its discretion or acted arbitrarily). '* These cases support a finding that, as a matter of law, the City arbitrarily exercised its discretionary power by granting a tax exemption to DDR without any competent evidence in the record for that entity’s special treatment. This Court should find, as a matter of law and based on the undisputed facts, that qualified Class Members are entitled to the same grant of a tax exemption that was afforded to DDR. b Mandamus is Proper because the City Did Not Exercise in Good Faith the Judgment or Discretion Vested in It by the Ordinance State, 123 So. 817 (Fla. 1929). ” See also, Clark vy. City of Shreveport,.5/10/95), 655 So.2d 617, 622 (La.App.2d Cir. 1995) (“Where permits are granted in similar situations and refused in others, the refusal to grant a permit may constitute non-uniform application of zoning ordinances that is arbitrary and unreasonable”); Matter of c/o Hamptons, LLC v. Rickenbach, 950 N.Y.S.2d 182 (2012) (denial of special use application was arbitrary and capricious where petitioners established that all standards of relevant zoning ordinance were met and that their application was virtually identical to that of similarly situated property owner in same zoning district whose application for same special use permit was granted); Zhao v. Department of Justice, 265 F.3d 83, 95-97 (2nd Cir.2001) (holding that failure to explain decision adequately provides grounds for reversal and stating “application of agency standards in a plainly inconsistent manner across similar situations evinces such a lack of rationality as to be arbitrary and capricious”), Village of Barrington, Ill. v. Surface Transp. Bd., 636 F.3d 650, 660 (D.C.C. 2011) (despite government agency’s discretion to interpret statute, agency’s interpretation “deserves no deference” if agency “simply pick[s] a permissible interpretation out of a hat”), City of Hueytown v. Jiffy Chek Co. of Alabama, 342 So.2d 761, 762 (Ala.1977), (“[t]he uncontradicted evidence showfed that] Jiffy Chek [wa]s situated no differently than the other merchants who were issued table wine licenses by the City....yet only Jiffy Chek ha[d] been denied a license”... An individual cannot be subjected to [arbitrary] exercise of governmental powers.”) (citations omitted). Pardo Gainsburg, PL + 200 Southeast First Street, Suite 700 + Miami, Florida 33131346 NW 29" Street, LLC, d/b/a Museo Vault, et al. v. City of Miami, et al. Case No. 13-37260 CA 01, Page 20 If an “official abuses [his/her] discretion so as to amount to a failure to do the act as the law requires, there has been in fact no actual exercise in good faith of the judgment or discretion vested in the officer and mandamus is a proper remedy” City of Hialeah, 97 So.2d at 199. Under Section 56-116 of the Ordinance, the Class had the legal right to have its applications considered by the City Commission. Nevertheless, the City Commission evaded its positive duty to consider the evidence of the Class Members’ qualifications. Because the City Commission abused its discretion by blatantly disregarding its affirmative obligations, this Court has the authority to issue a writ of mandamus as a proper remedy to compel the City Commission to provide tax exemptions to qualified Class members pursuant to the Ordinance. Grounds for finding an abuse of the City’s discretion are demonstrated, in part, by emails between the City and applicants under the Ordinance. These communications evidence the City’s bad faith tactic of stringing applicants along with false assurances that the City would follow the Ordinance. Since 2005, Herbert Friesner, principal of Economic Development Consultants, Inc., which submitted applications on behalf of numerous Class Members, including Museo, made countless pleas to the City to hear and to approve applications. Mr. Friesner’s years-long campaign, consisting of in-person meetings with City officials, including the Mayor himself, as well as phone calls, emails, and letters, (Exhibit 15), has only been met with misleading promises. (Aff. Friesner §10-16) For example, on July 21, 2006 - eight and a half years ago — Marcus James of the City’s Department of Economic Development apologized for the lapse in communication concerning the applications submitted by Mr. Friesner, demonstrating that Mr. Friesner’s requests for action had already been ongoing for some time. Mr. James states that his goal is to create a much smoother environment when it comes to tax abatement applications (going forward). (Exhibit 16 — Doc PL 92) But the evidence shows Pardo Gainsburg, PL + 200 Southeast First Street, Suite 700 + Miami, Florida 33131346 NW 29" Street, LLC, d/b/a Museo Vault, et al. v. City of Miami, et al. Case No. 13-37260 CA 01, Page 21 that the City’s actual goal going forward was only continued systematic delay and neglect. On January 11, 2010, Mr. Friesner complained to City representative Eric Duran that despite his (Mr. Friesner’s) meeting with Commissioner Sarnoff, City CFO Larry Spring, and Marcus James, when Mr. Friesner was assured that the City Commission would consider the applications the next month, nothing occurred. (Exhibit 16 — PL Doc 08) Three months later, on April 5, 2010, Museo representative David Lombardi emailed City representative Peter Ehrlich and stated that Ehrlich had attended a meeting with Commissioner Sarnoff and the Mayor, during which the Mayor assured Museo that applications had been approved and would be heard by the City Commission, but again, no action was taken. (Exhibit 16 - Doc PL 30) Two years later, on April 10, 2012, Mr. Friesner emailed City Management and Budget Director Daniel Alfonso and stated that Mr. Friesner had met with the Mayor several times over the past three years, the Mayor had assured him that the applications would be heard by the City Commission, and yet the applications were withdrawn from consideration without explanation. (Exhibit 16 - Doc PL 12) In meeting after meeting, the City told the applicants that the City would act on their applications. But again and again, nothing happened. Multiple emails portray the City’s modus operandi of lip service and avoidance. Importantly, the City never told Mr. Friesner, Museo, or any applicant, based on the record of communications from the City, that the City would not, in its discretion, consider for approval or denial any applications. Nor did the City indicate that, in its discretion, it was denying all applications. The City never gave any reason whatsoever for refusing to grant tax exemptions. (Aff. Friesner §15) To the contrary, the City continued to accept applications as late Pardo Gainsburg, PL + 200 Southeast First Street, Suite 700 + Miami, Florida 33131346 NW 29" Street, LLC, d/b/a Museo Vault, et al. v. City of Miami, et al. Case No. 13-37260 CA 01, Page 22 as May 2011’? (and perhaps later) and continued to cash the applicants’ non-refundable $100 checks, knowing full well the City had no intention to process them, let alone present them for approval to the City Commission. The City also wrote emails dating from 2012 in which the City continued to promise applicants that their applications would be heard by the Commission. (Exhibit 16 - Doc PL 19, 33, 34, 38, 40) But again, the City did nothing. These actions show the City’s abuse of its discretion and justify this Court’s order that tax exemptions be granted to the Class Members based on their qualifying applications.