Eisenberg v. City of Miami Beach, Case No. 13–23620–CIV.

Citation54 F.Supp.3d 1312
Decision Date19 September 2014
Docket NumberCase No. 13–23620–CIV.
PartiesRod EISENBERG, et al., Plaintiffs, v. CITY OF MIAMI BEACH, Defendant.
CourtU.S. District Court — Southern District of Florida

54 F.Supp.3d 1312

Rod EISENBERG, et al., Plaintiffs,

Case No. 13–23620–CIV.

United States District Court,
S.D. Florida.

Signed Sept. 19, 2014.

[54 F.Supp.3d 1316]

Jacob T. Cremer, David Smolker, Smolker Bartlett Schlosser Loeb & Hinds, P.A., Tampa, FL, for Plaintiffs.

Jason Patrick Kairalla, Richard J. Ovelmen, Carlton, Fields, Jorden, Burt, P.A., Rhonda Lee Montoya, Robert F. Rosenwald, Jr., City of Miami Beach, Miami, FL, for Defendant.


CECILIA M. ALTONAGA, District Judge.

THIS CAUSE came before the Court on Defendant, City of Miami Beach's (the “City['s]”) Motion for Judgment on the Pleadings ... (“Motion”) [ECF No. 52]. Plaintiffs, Rod Eisenberg (“Eisenberg”) and Eisenberg Development Corp. (“Eisenberg Development”) (collectively, “Plaintiffs”) filed their Response ... (“Response”) [ECF No. 61], to which the City replied ( see [ECF No. 67] ). The undersigned has carefully considered the parties' written submissions, the record, and applicable law.


Between 2004 and 2009, Plaintiffs and others voiced many complaints about the health and safety risks and Code compliance violations of an abandoned hotel in their neighborhood. ( See id. ¶ 20). The City investigated some of these complaints but did not resolve the problems with the abandoned building. ( See id.). In 2009, Eisenberg urged the City's Zoning Board of Adjustment to handle the Code violations more quickly, requesting the Board deny the abandoned hotel owner's request for a one-year extension to comply with the Code. ( See id.). The Zoning Board ultimately required the abandoned hotel owner to board the building and remove loose debris before granting the extension. ( See id.). In light of this, Eisenberg withdrew his objection, and the Zoning Board later approved the extension. ( See id.).

Between 2006 and 2012, multiple City officials were investigated and prosecuted for corruption. In 2006, a City electrical inspector was arrested for soliciting bribes ( see id. ¶ 14); in 2008, a City fire protection analyst was fired after reporting suspicions of kickbacks ( see id. ¶ 15), and a City planner, examiner, and inspector were all caught accepting bribes ( see id. ¶ 16); in 2012, City procurement director, Gus Lopez, was charged with sixty-three felony counts, including racketeering, bid-tampering, and illegal compensation ( see id. ¶ 17), and seven City Code compliance and fire department inspectors, including the City's lead code compliance officer, Jose Alberto (“Alberto”), were arrested for

[54 F.Supp.3d 1317]

extortion and accepting bribes in June 2011 to bypass City Code enforcement inspections and fines ( see id. ¶¶ 18–19).

The Sadigo Court Apartment Hotel (the “Sadigo”) is a “contributing historic structure” in the City's Museum Historic District. ( Id. ¶ 6). The Sadigo opened in 1936 as an apartment with transient rentals, and it has continued operating in this fashion without objection by the City. ( See id. ¶ 22). The Sadigo is located in a RM–2 zoning district, where the “ ‘main permitted uses' include apartments, apartment hotels, and hotels.” ( Id. ¶ 23 (quoting City of Miam I Beach Land Dev.Code (the “City Code”) §§ 142–212)). According to the City Code, “hotels” are only intended for occupancy by transient residents, and “apartments” require cooking facilities. ( Id. (quoting City Code § 114–1)). The City Code permits transient rentals for apartment hotels and apartments in RM–2 zones. ( See id. ¶ 24). The Sadigo's original City-issued certificates of use and occupancy (“CO[s]”) were for use as an apartment building, and the Sadigo has maintained this status. ( See id. ¶ 22). For a period of time, the Sadigo rented units on an annual basis. ( See id. ¶ 25).

In 2006, after obtaining a state transient public lodging establishment license from the Florida Department of Business and Professional Regulation's Division of Hotels and Restaurants, the Sadigo resumed transient rentals, for which it is licensed. ( See id. ¶¶ 25–26). Plaintiffs verified with the City that transient apartment rentals are legally permissible for the zoning district and the COs applicable to the Sadigo. ( See id. ¶ 27). Plaintiffs obtained a City Resort Tax Registration Certificate for the Sadigo, required for transient (six months or less) rentals of hotel and apartment units. ( See id. (citing City Code §§ 102–306)).

Upon renting to transient guests in late 2006, the Sadigo constructed a cold food preparation area in an interior courtyard “pursuant to a City-approved and issued building permit.” ( Id. ¶ 29). “After construction was completed and signed[-]off [ ] by the City, the City informed Plaintiffs that it was a ‘hotel [,]’ not an ‘apartment’ ....” ( Id.). The City required the Sadigo to obtain a new CO as a “hotel” because it rented apartments to transient guests and operated a food preparation area that was actually a “restaurant.” ( Id.). Plaintiffs complied and applied for a CO as a “hotel” ( id. ¶ 31), and were later told the Sadigo must comply with the fire protection standards applicable to “brand new hotel structures” ( id. ¶ 32 (internal quotation marks omitted)).

From 2006 to 2012, Plaintiffs received numerous notices of violation and cease and desist orders 2 from the City citing the Sadigo for violating City fire safety codes by allowing transient rentals of its apartments. ( See id. ¶ 50). In March 2010, the Miami Beach Fire Marshal, Sonia Machen (“Machen”), sent Eisenberg and engineer, Thomas Maxwell (“Maxwell”), a letter in response to Maxwell's Engineer Equivalency

[54 F.Supp.3d 1318]

Report on the Sadigo. ( See MTD App., Ex. 9 [ECF No. 17–9] ). The letter explained the Report's shortcomings in addressing the Florida Fire Prevention Code and identifying the historic features at risk from an accidental discharge of fire sprinklers. ( See id. 1). The City Building Official issued a decision requiring the installation of a fire sprinkler system and refused to accept the Engineer's Equivalency Report from the Sadigo explaining why a fire sprinkler system was unnecessary. ( See MTD App., Ex. 8 [ECF No. 17–8] ). The City Board of Rules and Appeals (the “BORA”) affirmed the Building Official's determination and notified Eisenberg of its decision in an April 21, 2010 letter. ( See id.).

Plaintiffs objected to the City's classification of the Sadigo as a new hotel and attended a City Commission meeting on January 19, 2011. ( See id. ¶ 29). At the meeting, Plaintiffs submitted materials explaining the various reasons the Sadigo should not be treated as a new hotel. ( See id.). The Mayor, City Commissioners, City Manager, and City Attorney were indifferent, and the City Fire Chief took offense to Plaintiffs' claims of unfair treatment. ( See id.). Plaintiffs believe the City Fire Marshal told the Sadigo's mortgagee the Sadigo was illegally operating as a hotel. ( See id. ¶ 38). On January 21, 2011, that mortgagee advised it would not renew its loan after previously encouraging Plaintiffs to renew it. ( See id. ¶ 37). Plaintiffs were left with no choice but to refinance the Sadigo at a higher interest rate—at enormous additional cost. ( See id.).

In 2011, Eisenberg Development filed a petition in the state court seeking a temporary injunction against the City. ( See MTD App., Ex. 4 at 2 [ECF No. 17–4] ); see also Eisenberg Dev. Corp. v. City of Miami Beach, No. 11–20234 CA 15, 4 (Fla. 11th Cir.Ct. Jan. 10, 2012) (order denying emergency temporary injunction). The state trial court held an evidentiary hearing regarding compliance with the Florida Fire Prevention Code (“Fire Code”). ( See id.). On January 10, 2012, the court denied the request for a temporary injunction. ( See id. 5). The trial court's decision was affirmed. See Eisenberg Dev. Corp. v. City of Miami Beach, 100 So.3d 702, 702 (Fla. 3d DCA 2012).

In April 2011, the City informed the Sadigo's longstanding client, the Art Basel Foundation, the Sadigo was illegally operating as a hotel, and as a result the Foundation severed its business relationship with Plaintiffs. ( See Compl. ¶ 39). In June 2011, the City sent undercover police officers to the Sadigo to verify the Sadigo was renting to transient guests. ( See id. ¶ 40). After observing transient rental activity, City police officers shut down the Sadigo for noncompliance with City fire codes, evicting the Sadigo's tenants and guests. ( See id.). This shutdown caused the Sadigo's largest client to sever its business relationship with Plaintiffs. ( See id. ¶ 41).

In December 2011, fifteen police offers, ten code enforcement officers (including Alberto), and five fire officials forcibly shut down the Sadigo a second time for violations of City fire codes. ( See id. ¶ 42). The shut down occurred while the Sadigo was hosting the “Poo[l] Art Fair” during the Art Basel Miami Beach art show, forcing guests to vacate the premises. ( Id. ¶¶ 42–43). Alberto offered to solve Eisenberg's problems “by using ‘his people,’ insinuating a bribe would be due from [ ] Eisenberg. When [ ] Eisenberg refused by stating he already had legal counsel working on it, Alberto stated ... Eisenberg would not get far using legal means.” ( Id. ¶ 44). Eisenberg was then arrested. ( See id. ¶ 45). In April 2012, Alberto and

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other code compliance officers and fire department inspectors were arrested for accepting bribes. ( See id. ¶ 46). Since these arrests, the Sadigo has not received any further code compliance notices or violations. ( See id. ¶ 47).

The three remaining counts in the Complaint allege a First Amendment retaliation claim in Count II ( see Compl. ¶¶ 71–78); violation of due process under 42 U.S.C. section 1983 in Count III ( see id. ¶¶ 79–86); and violation of due process under Articles I and X of the Florida Constitution in Count IV ( see id. ¶¶ 87–94). The City now moves for judgment on the pleadings.


Under Federal Rule of Civil Procedure 12(c) “after the pleadings are...

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  • Eisenberg v. City of Miami Beach
    • United States
    • U.S. District Court — Southern District of Florida
    • September 19, 2014
    ...54 F.Supp.3d 1312Rod EISENBERG, et al., Plaintiffsv.CITY OF MIAMI BEACH, Defendant.Case No. 13–23620–CIV.United States District Court, S.D. Florida.Signed Sept. 19, 2014.54 F.Supp.3d 1316Jacob T. Cremer, David Smolker, Smolker Bartlett Schlosser Loeb & Hinds, P.A., Tampa, FL, for Plaintiffs......

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