HomeMy Public PortalAbout1991 Attorneys.tifRESOLUTION OF THE BOARD OF TRUSTEES OF THE
O PROPOSAL
OFLLAGF OF KEY BI J 1 TO SERVE AS I
VILLAGE ATTORNEY IN ACCORDANCE WITH REQUEST
FOR PROPOSALS; PROVIDING FOR L:F ECPIVE DATE.
WHEREAS, the Board of Trustees of the Village of Key Biscayne
has, by public advertisement and specifications, solicited bids and
proposals from attorneys and law firms for the position of Village
Attorney; and
WHEREAS, the Village of Key Biscayne has received fourteen
proposals from attorneys and law firms in response to such advertisement;
and
WHEREAS, it is in the best interest of the Board of Trustees to
appoint a Village Attorney from among the well -qualified fourteen law
firms and attorneys which have stated their interest in the position;
NOW, THEREFORE, IT IS HEREBY RESOLVED BY THE BOARD OF 1RUSTEES OF THE
VILLAGE OF KEY BISCAYNE, AS FOLLOWS:
Section 1. That
is hereby selected as Village Attorney in accordance with Section 3.06 of
the Charter of the Village of Key Biscayne.
Section 2. That the written proposal of the attorney or law firm
identified in Section 1 above is hereby accepted and approved, and the
Mayor and Interim Village Clerk are hereby authorized to execute the
acceptance of said proposal on behalf of the Village of Key Biscayne, upon
approval by the Interim Village Attorney.
Section 3. That the Board of Trustees hereby expresses its
apprddiation to each of the fourteen firms and attorneys who participated
in this selection process.
Section 4. This resolution shall be effective immediately fLum
and after adoption hereof, and the Village Attorney selected in Section 1
above shall immediately commence service as Village Attorney in accordance
with law. The payment of corrpensation for the services of the Village
Attorney, as provided in the proposal which is hereby approved, shall be
subject to the adoption of the budget of the Village of Key Biscayne.
PASSED AND ADOYI'r;1.) by a 6-1 vote of the Board of Trustees
of the Village of Key Biscayne, this day of �a� , 1991.
ATTEST:
APPROVED:
INTERIM VILLAGE ATTORNEY
GOVERNMENTAL/ MUNICIPAL REPRESENTATION PROPOSAL
AND FIRM RESUME
WEI S S SEROTA & HELFMAN, P.A.
PREPARED FOR THE VILLAGE OF KEY BISCAYNE
WEISS SEROTA & HELFMAN, P.A.
ATTORNEYS AT LAW
2665 SOUTH BAYSHORE DRIVE
SUITE 204
MIAMI, FLORIDA 33133
STEPHEN J HELFMAN
GILBERTO PASTORIZA
JOSEPH H SEROTA
RICHARD JAY WEIS5
October 15, 1991
HAND DELIVERED
The Honorable Mayor and Members
of the Board of Trustees of the
Village of Key Biscayne
c/o Beatris Arguelles, Interim Clerk
Dade League of Cities, Inc.
7480 Fairway Drive, Suite 206
Miami Lakes, Florida 33014
TELEPHONE
(305) 854-0800
TELECOPIER
(305) 854 2323
Re: Response to Request for Proposals for Village Attorney
Dear Mayor and Trustees:
Pursuant to the Request for Proposals issued by the Village,
I am pleased to submit the proposal of our law firm to serve as
Village Attorney. The "Proposal Requirements" are addressed in
this letter and our Firm Resume which is incorporated into this
response.
You will note from our resume that we currently serve as City
Attorney for the Village of Bal Harbour and the City of Sweetwater,
and as special counsel to numerous other cities in the South
Florida area. The Firm was specifically created to represent
municipalities and persons who transact business with governmental
entities.
Prior to addressing the specific items covered in the
"Guidelines," there is one area of our expertise which we believe
might be of particular significance to the Village. That area is
the experience and ability of the Firm to deal effectively with
Metropolitan Dade County (the "County").
I. Experience with Dade County.
The members of our Firm have extensive knowledge and
experience relating to negotiating with the County. I served for
The Honorable Mayor and Members of
the Key Biscayne Board of Trustees
October 15, 1991
Page 2
almost seven years as an Assistant Dade County Attorney. My
partners, Stephen Helfman and Joseph Serota, have had distinctive
and useful relationships and experiences with the County as well.
It is our sincere belief that next to the Village Charter, the
most important document that the Village will create in the
foreseeable future will be the transition agreement or agreements
with the County. Those agreements could potentially dictate the
level of services that Village residents will receive for many
years to come. The agreements should also specify the method by
which services currently performed by the County are transferred to
the Village. An important part of that transition will be the
method or methods used to calculate the transfer of revenues which
relate to those services.
The negotiations between the Village and the County will be
difficult and complex. We believe that we have a unique ability to
advise the Board of Trustees in obtaining the most favorable terms
available. We are providing you with the following information as
to the relevant experience of the members of our Firm to
demonstrate the background we would bring to the process.
A. Richard Weiss
As stated earlier, I served as an Assistant Dade County
Attorney from 1978 through 1984. While an Assistant Dade County
Attorney, I advised virtually every agency and department of the
County and negotiated numerous contracts and interlocal agreements
pursuant to Chapter 163, Florida Statutes, the Florida Interlocal
Cooperation Act of 1969, on the County's behalf. The agreements
which I negotiated include the lease agreement between the County
and the Miami Dolphins, the interlocal agreement between Dade
County and Broward County creating the South Florida Sports
Authority; and the interlocal agreement between the City of Miami,
the City of Hialeah, the City of Miami Beach and the County
creating the South Florida Employment and Training Consortium. I
also represented the County in negotiating with the City of North
Miami and with private water and sewer companies pertaining to
water and sewer service and rates.
Additionally, I have had extensive experience working with and
negotiating on behalf of the Metro -Dade Police Department as to
various matters, including collective bargaining agreements. I was
fortunate to have been appointed the first attorney to sit with the
County Zoning Appeals Board. In that role, I sat as advisor to
that Board and also negotiated with developers and applicants
regarding details of their applications.
WEISS SEROTA & HELFMAN, P.A.
The Honorable Mayor and Members of
the Key Biscayne Board of Trustees
October 15, 1991
Page 3
Since leaving the County, I have represented public and
private entities negotiating on the other side of the table from
the County. I was part of the team that represented Montenay Power
Corporation and Montenay International in negotiating their
Resource Recovery Contract. I have also been involved in
negotiations with the County pertaining to Metrorail stations,
fiber optics systems, transportation services and other matters.
On behalf of public entities, I negotiated recycling agreements,
mutual aid agreements pertaining to police services, water and
sewer agreements, coastal maintenance contracts, and represented
municipal entities in negotiating with the State pertaining to
dredge and fill permits and other environmental issues.
Other members of our Firm, have significant experience in
negotiating with the County as well.
B. Stephen Helfman
Stephen Helfman has been involved in the
negotiation/preparation of agreements with the County for
conveyance and development of land for two Metromover station
sites. These agreements involved extensive negotiations over
environmental issues, construction easements, and future
development rights. He has also negotiated numerous agreements
with the Dade County Water and Sewer Authority Department ("WASAD")
pertaining to water and sewer agreements on behalf of private
developers, and has negotiated and prepared major development
agreements for various projects including Developments of Regional
Impact (DRIs). His experience includes lease negotiations and
preparation of operating agreements with the County Parks and
Recreation Department for projects including the on -going Deering
Bay project. He also has had significant involvement in federal,
state and local environmental permitting processes. Finally,
Mr. Helfman was directly involved in the negotiation and drafting
of the County Park Impact Fee Ordinance and recent revisions to the
Dade County Parking Ordinance and Vested Rights Ordinance.
C. Joseph Serota
Mr. Serota has been appointed by the County Commission to both
the Metropolitan Dade County Independent Review Panel (three terms)
and the Community Relations Board, as well as to a task force
created by the County to restructure the Independent Review Panel.
In these roles, Mr. Serota has gained unique insight into the
inner -workings of the County with special emphasis on the Metro -
Dade Police Department. In addition to being a police review
board, one of the functions of the Independent Review Panel is to
review disputes between citizens of the County and County employees
WEISS SEROTA & HELFMAN, P.A.
The Honorable Mayor and Members of
the Key Biscayne Board of Trustees
October 15, 1991
Page 4
and agencies. On behalf of the citizens and as chairman of the
Independent Review Panel, Mr. Serota has participated in detailed
negotiations with the County and its agencies pertaining to the
resolution of these disputes and the restructuring and revamping of
County procedures and policies. This experience will be
particularly significant to you in the establishment and
maintenance of the overall relationships with the County as well as
in negotiations of a transition agreement.
D. Gilberto Pastoriza
Mr. Pastoriza has represented numerous private developers in
the negotiation of covenants, unities of title, and water and sewer
agreements with the County. He also has extensive experience with
code enforcement proceedings.
II. Response to "Guidelines"
In the remainder of this letter, I will address the items in
the "Guidelines."
Our law firm is fully capable of providing all of the services
listed in 2(a) -(g) in the proposed "Guidelines." A brief
description of our capabilities is outlined below:
(a) Attendance at all meetings of the Board, including
special and emergency meetings, and all required
committee or agency meetings.
Members of the Firm currently provide this service to the
Village of Bal Harbour and the City of Sweetwater. Previously, I
served as counsel to the County Commission, and other boards listed
on the attached resume. I also served for a period of time under
Attorney General Bob Butterworth as City Attorney for the City of
Sunrise after Mayor John Lomello was indicted.
(b) Preparation of resolutions and ordinances.
Since the Firm currently serves as City Attorney to two
cities and special counsel to other cities, we regularly prepare
ordinances and resolutions relating to all areas of the law,
including zoning issues, code enforcement, building permits, and
personnel matters.
(c) Preparation of Legal Opinions.
The Firm is routinely called upon to render legal
opinions on various matters of municipal law. In the past, we have
WEISS SEROTA & HELFMAN, P. A.
The Honorable Mayor and Members of
the Key Biscayne Board of Trustees
October 15, 1991
Page 5
issued legal opinions on numerous matters including the Sunshine
law, Public Records Law, land use and comprehensive plan issues,
and a variety of questions regarding existing and potential
litigation.
(d) Preparation of Contracts, Employment Agreements and
Other Documentation.
As a result of our representation of both public entities
and individuals who do business with public entities, we have
extensive experience in the drafting of contracts, employment
agreements and other documents. This is particularly true because
of the concentration of the Firm on land use and labor issues.
Recently, we represented the Town of Davie in negotiating their
contract with Waste Management pertaining to recycling services.
You should also note that we have a second associate (in
addition to Mr. Pastoriza) who is a trained real estate and
corporate attorney. Ellen Nolen Saul has an outstanding academic
background and excellent work experience. She will serve in a
supporting capacity with regard to the various matters for which we
may be asked to render legal assistance.
(e) Expert Advice on Local Government Law and
Procedures (including, without limitation, Chapter
166 Fla. Stat., Public Records Act, appropriations
and procurement laws, competitive bidding law,
Ethics Code for Public Officials, conflicts of
interest and parliamentary procedure).
All members of the Firm have on -going projects involving
the administration, interpretation and enforcement of Chapter 166,
Florida Statutes, the Public Records Acts, appropriation and
procurement laws, competitive bidding laws, ethics, conflicts of
interest and parliamentary procedure. Several members of the Firm
have lectured extensively on the Sunshine Law, Public Records Law
and conflict of interest issues.
(f)
Advice on General Questions of Zoning, Land Use,
Labor, Utilities, Municipal Finance, Litigation and
Other Matters.
As detailed above, we are regularly called upon to deal
with complex zoning, land use, labor, utilities, finance,
litigation, and other matters, to advise our clients as to these
matters and to have an on -going and current knowledge of laws,
rules and regulations in those areas.
WEISS SEROTA & HELFMAN, P. A.
The Honorable Mayor and Members of
the Key Biscayne Board of Trustees
October 15, 1991
Page 6
Stephen Helfman is the partner in charge of the Firm's
land use and zoning practice. He has extensive experience in
issues involving the Growth Management Act, comprehensive planning,
including DRIs and related issues. He is the author of an article
entitled "Consistency After Machado" which was published in The
Florida Bar Journal, attached as Exhibit "A," and was cited by the
State Department of Community Affairs as authority in the
preparation of Rule 9J-5 which implements the Growth Management
Act.
(g) Liaison with Outside Counsel, When Required.
Because the Firm serves as a full -service municipal law
firm, we believe we will be able to handle most matters in which
the Village would be involved. As to municipal finance matters, in
my role as City Attorney for the City of Sunrise, I was responsible
for being the liaison with our outside bond counsel and also
performed that role to a limited extent while I was an attorney
with the County.
OTHER AREAS
(h) Utility Law (Water and Wastewater issues, rates,
Collections, Charges, Assessments).
I was formerly counsel to the County Water and Sewer
Board. That Board, in Dade County, acts as a "mini -public service
commission" and is responsible for setting water and sewer
standards and rates within the County.
(i) Handling the Prosecution and Defense of Suits By
And Against the Village.
Mr. Serota, the partner in charge of litigation, as well
as other members of the Firm, are regularly called upon by South
Florida municipalities to defend various types of lawsuits
including tort and civil rights claims, land use issues, and
election challenges at both the trial and appellate levels.
Mr. Serota has successfully handled significant lawsuits including
jury trials and appeals pertaining to municipal law. Copies of two
of those cases are included in our resume. He is currently
preparing for trial on behalf of the City of Hialeah in a personal
injury lawsuit.
Mr. Serota and I have litigated a myriad of lawsuits on
behalf of governments on issues including election challenges,
contract disputes, annexations, labor and union disputes and race
discrimination. We have handled in excess of one hundred different
WEISS SEROTA & HELFMAN. P. A.
The Honorable Mayor and Members of
the Key Biscayne Board of Trustees
October 15, 1991
Page 7
governmental lawsuits, and many of the more significant ones from
state and federal courts have been reported by national reporting
services. A list is attached as Exhibit "B" to this letter.
You should note that among the many cases, trials, and
appeals of a general nature handled by Mr. Serota, twenty-six cases
can be found in the major federal and regional reporters.
Mr. Serota would be the principal litigator on all major lawsuits
brought by or against the Village.
(j) Labor Law (Collective Bargaining, Arbitrations,
Grievances and the Like).
Mr. Weiss serves as outside labor counsel to numerous
cities in Dade and Broward County. His specific qualifications are
included in his resume. Some of the cases cited in Section I of
this response also attest to our extensive experience in this area.
OTHER REQUIREMENTS
The Firm currently carries Professional Liability
Insurance in an amount of $1,000,000.00
FEES AND CHARGES
Weiss Serota & Helfman would propose to attend regularly
scheduled Village Council meetings and to provide routine
telephonic advice to Village employees and elected officials at no
charge.
As to all other services, including attendance at other
meetings, drafting of ordinances and resolutions, litigation,
drafting contracts, preparing legal opinions, forfeitures, etc.,
the Firm would provide those services at a rate of $135 per hour
for all attorneys, billed on a monthly basis. Although this rate
is significantly lower than the hourly rate charges to all
commercial clients, we understand the fiscal restraints of
municipalities and we are willing and prepared to provide the
Village with all necessary services at this rate.
Thank you for your consideration of our proposal.
RJW/ne
Very truly yours,
Richard Jay W ss
WEISS SEROTA & HELFMAN, P.A.
aillt..a)
EXHIBIT "A"
THE FLORIDA
BAR JOUNAL
LOCAL GOVERNMENT LAW
Consistency After Machado
The Local Government Comprehen-
sive Planning and Land Develop-
ment Regulation Acts (the "act")
requires that all local government
development orders,2 including rezonings,
be "consistent" with comprehensive plans
adopted in conformity with the act.3 Flor-
ida courts have struggled with the defuri-
tion of consistency and have attempted to
establish a standard of review to be applied
when development orders issued by a local
government are challenged based upon con-
sistency with a comprehensive plan. Re-
cently, in Machado v. Musgrove, 519
So.2d 629 (Fla. 3d DCA 1987), the Third
District Court of Appeal issued a far-
reaching decision which clearly established
a rigid definition of consistency and applied
a strict scrutiny standard of review.
This article will examine the Machado
decision and its potential impact upon lo-
cal government. It will also show that a
more flexible approach to consistency de-
terminations and the judicial standard of
review will be necessary because of the com-
plexity of the new comprehensive plans man-
dated by the act.
Machado involved a 1986 decision by
the Board of County Commissioners of Met-
ropolitan Dade County granting the re-
quest of Jose L. Machado and others to
rezone their 8.5 acre tract of land from GU
(interim) to RU -5A (professional office).
Area residents challenged the rezoning on
the basis that it was inconsistent with Dade
County's Comprehensive Development Mas-
ter Plan, which designated the property as
residential.° The circuit court reversed the
rezoning action, the Third District Cour•
of Appeal affirmed, and m June 1988 the
Florida Supreme Court refused jurisdiction
Definition of Consistency
Two definitions of consistency have
evolved in Florida. The first is that found
in §163.3194(3)(a) of the act, which pro -
',ides as follows:
A more flexible
approach to
consistency
determination
will be necessary
because of the
new comprehensive
plans' complexity
by Stephen J. Helfman
and Carter N. McDowell
A development order or land development regu-
lation shall be consistent with the comprehen-
sive plan if the land uses, densities, or intensities,
and other aspects of development permitted by
such order or regulation are comparable with
and further the objectives, policies, land uses,
and densities or intensities in the comprehen-
sive plan and if it meets all other criteria
enumerated by the local government. [Empha-
sis added].
The cornerstone of this statutory defmi-
tion is compatibility. Two items are com-
patible if they can coexist — if they are not
contradictory.6 Compatibility does not re-
quire two compared items to be identical
or require that they mirror each other ex-
actly. Flexibility is, therefore, an inherent
part of determining compatibility. Addition-
ally, inclusion of the term "further" within
the statutory definition implies that consis-
tency is a flexible concept. For example,
one development order may "further" the
objectives of the plan to a greater degree
than another development order, yet both
may be "consistent" with the plan and fur-
ther one or more of the objectives of the
plan.
Further support for a flexible reading of
the consistency requirement can be found
in a second statutory definition which pro-
vides as follows:
The Legislature finds that... a local plan
shall be consistent with [the state and the re-
gional] plans if the local plan is "compatible
with" and "furthers" such plans. The term "com-
patible with" means that the local plan is not
in conflict with the state [or] ... regional pol-
icy plan. The term "furthers" means to take ac-
tion in the direction of realizing goals or poli-
cies of the state or regional plan. For the pur-
poses of determining consistency... the state
or regional plan shall be construed as a whole
and no specific goal and [sic/ policy shall be
construed or applied in isolation from the other
goals and policies in the plans.' [Emphasis
added].
This definition calls for flexibility in the
context of consistency determinations be-
tween state, regional and local plans, and
there is no reason to believe that the legis-
lature intended a different approach with
regard to development orders. Even more
telling than the foregoing definitions of
"compatible with" and "furthers" is the man-
date that the state and regional plans be
construed as a whole and that no individ-
ual goal or policy be applied in isolation.
This mandate requires a flexible approach
to consistency determinations in order to
allow for the balancing of various goals
and policies.
Additionally, the act clearly intended a
flexible definition by providing guidelines
for judicial review of local government con-
sistency determinations and providing that
the act should be construed broadly to ac-
complish its stated purposes and objectives.
Finally, it should be noted that the flex-
ible approach to the definition of
consistency has been followed in several judi-
cial districts, including the Fourth District
in the case of Southwest Ranches
Homeowners Association, Inc. v. County
of Broward, 502 So.2d 931 (Fla. 4th DCA
1987), in which property was rezoned to per-
mit the construction of a solid waste facil-
ity on land designated as agricultural on
the Broward County Comprehensive Plan.
The court stated that "the legislative scheme
calls for a more flexible approach to the
determination of consistency."9 Similarly,
the Third District Court of Appeal in the
pre -Machado decision of Norwood-
Norland Homeowners Assn., Inc. v. Dade
County, 511 So.2d 1009 (Fla. 3d DCA
1987), upheld a finding that the siting of
the Dolphin stadium on land designated on
Dade County's Land Use Plan as residen-
tial was "compatible" and "in keeping" with
the land use plan. These decisions clearly
support the flexibility of the statutory defi-
nition of consistency.
The second definition of consistency is
found in Judge Cowart's concurring opin-
ion in City of Cape Canaveral v. Mosher,
467 So.2d 468 (Fla. 5th DCA 1985):
The word "consistent" implies the idea or exis-
tence of some type or form of model, standard,
guideline, point, mark or measure as a norm
and a comparison of items or actions against
that norm. Consistency is the fundamental rela-
tion between the norm and the compared item.
If the compared item is in accordance with, or
in agreement with, or within the parameters speci-
fied, or exemplified, by the norm, it is "consis-
tent" with it but if the compared item deviates
or departs in any direction or degree from the
parameters of the norm, the compared item or
action is not "consistent" with the norm.10
This rigid definition was proposed by
Judge Cowart before the act included a defi-
nition of consistency.'t
Despite the statutory definition and the
approach followed in Southwest Ranches
and Norwood-Norland, the court in Ma-
chado followed Judge Cowart's rigid defi-
nition of consistency and held that a
rezoning is consistent with a comprehen-
sive plan only when competent and sub-
stantial evidence shows that the proposed
development "conforms strictly to the com-
prehensive plan and its elements. "12 The
court further stated that "strict implies rigid
exactness."13
In arriving at its decision, the court in
Machado determined that Dade County's
Land Use Plan included three elements: a
color -coded map, textual material on the
reverse side of the map and neighborhood
and functional studies and plans which
Dade County had adopted or accepted by
ordinance for a limited number of areas
within the county. The court held that the
applicants for the rezoning were unable to
show that their request was consistent with
the agricultural designation imposed on the
property by the third element, which was
a 1981 county neighborhood study entitled
the West Dade Ranch -Area Study. This
finding is curious because the West Dade
Ranch -Area Study was never intended to
be an element of the county's plan, was
never adopted by the county as part of the
plan and was never reviewed by the De-
partment of Community Affairs as re-
quired by law.14 Notwithstanding, the court
deemed that study and other such studies
to be a "critical element of Dade County's
Land Use PIan."15
Machado is, therefore, significant not
only because it adopts and expands on the
rigid definition of consistency offered by
Judge Cowart in Mosher, but also because
it imposes a requirement that local govern-
ment action must be consistent with nonele-
ments of comprehensive plans such as
neighborhood area studies.
Standard of Review
Traditionally, local government develop-
ment orders and zoning decisions in par-
ticular have been reviewed under the "fairly
debatable" standard.16 One of the primary
issues raised in Machado is whether the
"fairly debatable" standard should be ap-
plied in determining if local government
development orders are consistent with a
comprehensive plan. Few Florida cases
have addressed this issue; however, the fol-
lowing varying standards have developed:
1. Fairly Debatable Standard. Under the
"fairly debatable" standard, courts limit ex-
amination of local government action to a
determination of whether the local govern-
ment's decision is supported by substantial
competent evidence.17 The "fairly debat-
able" standard of review was applied by the
First District Court of Appeal in City of
Jacksonville Beach v. Grubbs, 461 So.2d
160 (Fla. 1st DCA 1984). In that case the
trial court reversed the city council's deci-
sion and ordered that property having a
multi -family comprehensive plan designa-
tion be rezoned from its R -1A (single
family residential) classification to a multi-
family zoning classification. The First Dis-
trict reversed the trial court, stating that
"the zoning authority's decision should
have been reviewed under the traditional
`fairly debatable' standard of review...."18
2. Fairly Debatable Strict or Stricter
Scrutiny Standard. Although the Grubbs
decision adopted and applied the "fairly de-
batable" standard, it set the stage for the
second standard of review used in Florida.
By way of a footnote, the First District in
Grubbs stated that "an altogether different
result occurs if a zoning authority approves
a use more intensive than that proposed by
the plan. Such a decision would be subject
to strict scrutiny.19 This suggests a dual stan-
dard of review under which the scope of
review is based upon a threshold determi-
nation of whether the proposed use exceeds
the intensity permitted by the comprehen-
sive plan. If the use is less intensive, the
"fairly debatable" standard applies. If the
use is more intensive, the court will apply
a "stricter scrutiny" standard or "strict scru-
tiny" standard.
In Southwest Ranches the Fourth Dis-
trict adopted the dual standard approach
suggested in Grubbs, and stated that
"where the zoning authority approves a use
more intensive than that proposed by the
plan, the long tern expectations for growth
under the plan have been exceeded and the
decision must be subject to stricter scrutiny
than the fairly debatable standard contem-
plates."20 Remarkably, just two months be-
fore Machado, the Third District also ap-
plied the "stricter scrutiny" standard in N,,r-
wood-Norland.21
3. Strict Scrutiny Standard. The third
standard of review is the "strict scrutiny"
standard which was initially proposed in
Grubbs as the appropriate standard when
the proposed use is more intensive than per-
mitted under the plan. However, it was not
until Machado that a Florida court applied
"strict scrutiny" to a zoning decision chal-
lenged as being inconsistent with a com-
prehensive plan. The court in Machado
stated that:
The test in reviewing a challenge to a zoning
action on grounds that a proposed project is
inconsistent with the comprehensive land use
plan is whether the zoning authority's determi-
nation that a proposed development conforms
to each element and the objectives of the land
use plan is supported by competent and sub-
stantial evidence. The traditional and nondefer-
enttal standard of strict judicial scrutiny
applies.0
The court went on to define strict scru-
tiny as:
[T]he process whereby a court makes a detailed
examination of a statute, rule or order of a tri-
bunal [looking] for exact compliance with or
adherence to a standard or norm. It is the an-
tithesis of a differential review. [According to
the court,] strict implies rigid exactness or pre-
cision. A thing scrutinized has been subjected
to minute investigation.23
Based on the foregoing there is no ques-
tion that the Third District has adopted the
"strict scrutiny" standard of review in de-
termining development order consistency.
The court adopted this standard despite the
Florida Supreme Court decision of Florida
THE FLORIDA BAR JOURNAL/FEBRUARY 1989
High School Activities Association, Inc. v.
Thomas, 434 So.2d 306 (Fla. 1983), which
criticized the Third District for indiscrimi-
nate use of the strict scrutiny standard of
review. In that case the court cautioned
that strict scrutiny should be applied only
to those actions by the state which abridge
some fundamental right or adversely affect
some suspect class of persons.
Although the act is silent with regard to
the appropriate standard of review to be
applied when development orders are chal-
lenged on the basis of consistency, the
legislature specifically directed which stan-
dard of review should apply to judicial
evaluation of local plan consistency with
state and regional plans. The legislature di-
rected the courts to apply the "fairly
debatable" standard to local plans and plan
amendments determined to be "in compli-
ance" by the state planning agency.24 Tt
seems fair to say that, if a plan amendment
is to be reviewed under a "fairly debatable"
standard, development order consistency
should also be reviewed under this stan-
dard. However, if the courts feel that the
"fairly debatable" standard is inappropri-
ate, they should look to the statutory
scheme which provides that local plans and
plan amendments determined not to be "in
compliance" with state and regional plans
must be reviewed based on a preponder-
ance of the evidence.2S This standard,
although not traditionally considered a stan-
dard of review, represents a compromise
between the "fairly debatable" standard and
the "strict scrutiny" standard enunciated in
Machado.
Machado's Impact Upon
Local Govemment
Machado has and will continue to have
at least two significant effects upon local
government. The first effect results from
the rigid definition of consistency adopted
by the Third District. The second emanates
from the strict scrutiny standard of review
adopted by the court.
In order to appreciate fully the impact
resulting from the Machado definition of
consistency, one must understand the com-
plexity of the state -mandated comprehen-
sive plans which all units of local govern-
ment are required to adopt. These plans
must contain at least 12 statutorily required
elements, the minimum content of which
is set out in Rule 9J-5 of the Florida Ad-
ministrative Code26 (the "rule"). The rule
requires that each local government estab-
lish at least 15 goals, 69 objectives and
more that 150 different policies. In prac-
tice, however, local governments have
found that much more is required to meet
the criteria of the rule. For example, Met-
ropolitan Dade County recently transmit-
ted an 1800 -page comprehensive plan to
the State Department of Community Af-
fairs and was advised that it was inade-
quate to meet the requirements of the rule.
Under Machado, local government de-
velopment orders must comply "strictly"
and with "rigid exactness" to each element
of the local government comprehensive
plan in order to be "consistent" with that
plan. Considering the complexity of the
state -required comprehensive plans, local
The only way local
government can
contend with the
increasingly difficult
task of managing
growth is to be given
latitude as set forth
in the act ... the
Supreme Court
must intercede
governments may not be able to meet this
rigid burden. What is more, under Ma-
chado, a local government development
order may also be required to conform to
neighborhood functional studies and plans
which have not been adopted as part of the
comprehensive plan. The uncertainty of
this requirement places an almost impossi-
ble burden upon local government.
The Third District's rigid definition of
"consistency" also eliminates the necessary
discretion which local governments must be
able to exercise in balancing the needs of
their communities. A simple example will
best illustrate this problem. All comprehen-
sive plans must contain a sanitary sewer,
solid waste, drainage, potable water and
natural ground water aquifer recharge ele-
ment. This element requires plans for the
establishment of sanitary landfills, resource
recovery facilities and sewage treatment
plants. These facilities and other similar
uses are sometimes referred to as locally un-
wanted land uses or "LULU's." A compre-
hensive plan must also include goals,
objectives and policies to protect various
land uses from incompatible adjoining
uses; protect and conserve environmentally
sensitive areas; conserve prime aquifier re-
charge areas and conserve prime agricul-
tural areas.
Anyone at all familiar with the develop-
ment, geography and hydrology of South
Florida and many other areas of the state
will recognize that it will be virtually im-
possible to locate a new LULU if a local
government is required to comply "strictly"
and with "rigid exactness" with all the cri-
teria required for a comprehensive plan.
Yet, as the Fourth District recognized in
Southwest Ranches, "Government ... is
saddled with the reality that some provi-
sion must be made for such facilities."n
The court also acknowledged "that
managing growth under a comprehensive
plan with such a wide array of elements
may involve the selecting between conflict-
ing goals and priorities." Under the Ma-
chado defmition of consistency, no such bal-
ancing or selecting between conflicting
goals and priorities could occur.
The second profound impact of the Ma-
chado decision relates to the establishment
of strict scrutiny as the standard for review-
ing consistency of development orders with
a comprehensive plan. Under the strict scru-
tiny standard, the courts will undertake a
"minute investigation" and "detailed exami-
nation" of each development order to de-
termine whether the development order con-
forms with "rigid exactness" to every ele-
ment of the comprehensive plan. It will be
up to the local government to support its
decision with competent and substantial evi-
dence and, more importantly, the pre-
sumption of validity generally given to
local government legislative decisions will
be eliminated. Needless to say, this
situation will become untenable for local
government.
Conclusion
Given the complexity of the state -man-
dated comprehensive plans, Machado
establishes parameters which are virtually
impossible to meet. The only way local gov-
ernment can contend with the increasingly
difficult task of managing growth is to be
given the latitude expressly and implicitly
set forth in the act. The Florida Supreme
Court must intercede into this arena in or-
der to establish a realistic, flexible and con-
sistent defmition of consistency as well as
an appropriate judicial standard for re-
viewing whether local government action is
consistent with a comprehensive plan.°
THE FLORIDA BAR JOURNAL/FEBRUARY 1989
I See generally Fu. STAT. Ch. 163, pt. II
(1987).
2 FLA. STAT. §163.3164(6).
3 Fu. STAT. §I63.3194(1)(a). The statutory
"consistency" requirement was first introduced
in the Local Government Comprehensive Plan-
ning Act, Fu. STAT. §163.3194(I) (1975); how-
ever, no statutory definition of consistency was
provided until 1985.
'Machado v. Musgrove, 519 So.2d 629
(Fla. 3d D.C.A. 1987).
3 The act establishes three different consis-
tency requirements: (1) Internal consistency
among the various elements of the plan; (2) con-
sisteacy between regional and local plans; and
(3) consistency between the local plan and de-
velopment orders. This article will address only
this third type of consistency.
6 The American Heritage Dictionary 300
(2d College ed. 1985).
7 Fu. STAT. §163.3177(10)(a).
'FLA. STAT. §§163 . 3194(4 )(a),
163.3194(4Xb).
9 Southwest Ranches Homeowners Associa-
tion, Inc. v. County of Broward, 502 So.2d 931,
936 (Fla. 4th D.C.A. 1987).
1° City of Cape Canaveral v. Mosher, 467
So.2d 468, 471 (Fla. 5th D.C.A. 1985).
11 See note 3 supra.
12 See Machado v. Musgrove, 519 So.2d at
632.
131d.
1' Fu. STAT. §163.3184(D (1975).
1s See Machado v. Musgrove, 519 So.2d at
634.
16 Dade County v. United Resources, Inc.,
374 So.2d 1046 (Fla. 3d D.C.A. 1979); Dade
Savings and Loan Assn. v. City of North Mi-
ami, 458 So.2d 861 (Fla. 3d D.C.A. 1984).
17 City of Jacksonville Beach v. Grubbs, 461
So.2d 160, 163 (Fla. 1st D.C.A. 1984).
1'Id.at162.
19 Id at 163.
2° See Southwest Ranches Homeowners As-
sociation, Inc. v. County of Broward, 502 So.2d
at 936 (emphasis added].
21 Norwood-Norland Homeowners' Assn.,
Inc. v. Dade County, 511 So.2d 1009 (Fla. 3d
D.C.A. 1987).
n See Machado v. Musgrove, 519 So.2d at
632.
23 Id. at 635.
M Fu. STAT. §1 63.3 1 34(9Xa).
2s Fu. STAT. §163.3184(10)(a).
26 F.A.C. Ch. 9J-5.
27 See Southwest Ranches Homeowners As-
sociation, Inc. v. County of Broward, 502 So.2d
at 939.
21 a
f
EXHIBIT "B"
1. Rivero v. Aguirre, 578 So.2d 905 (Fla. 3d DCA 1991)
[election challenge].
2. Rodriquez v. City of Hialeah, 716 F.Supp. 1989 (S.D.Fla.
1989) [race discrimination charge].
3. Fraternal Order of Police v. City of Hialeah, 815 F.2d
631 (11th Cir. 1987) [constitutional challenge to a
collective bargaining procedure].
4. City of Boca Raton v. Ross Hoffman Associates, Inc., 501
So.2d 459 (Fla. 4th DCA 1987) [dispute stemming from
contract to design and construct a waste treatment
facility].
5. City of Sunrise v. Town of Davie, 472 So.2d 458 (Fla.
1985) [dispute stemming from bond validation proceeding].
6. AFSCME v. Florida Public Employees Relations Commission,
430 So.2d 481 (Fla. 3d DCA 1983) [collective bargaining
dispute].
7. Dade County v. Taddia, 378 So.2d 804 (Fla. 3d DCA 1980)
[workman's compensation, tort defense].
8. Florida Water and Utilities v. Cutler Ridge Associates,
376 So.2d 273 (Fla. 3d DCA 1979) [jurisdiction of water
and sewer board].
TABLE OF CONTENTS
PAGE
FIRM DESCRIPTION 1
GENERAL STATEMENT OF EXPERIENCE 3
RICHARD JAY WEISS 4
JOSEPH H. SEROTA 8
STEPHEN J. HELFMAN 11
GILBERTO PASTORIZA 13
ELLEN NOLEN SAUL 15
REPRESENTATIVE CLIENTS 16
SIGNIFICANT OPINIONS 18
WEISS SEROTA & HELFMAN, P.A..
FIRM DESCRIPTION
WEISS SEROTA & HELFMAN is a specialized Florida law firm which was formed with
the specific purpose of representing municipalities and persons who do business with local
governments. The Firm is committed to both excellence in the practice of law and service to
the community. Firm members enjoy an excellent reputation in the community, with the bar
and with the judiciary.
Individual members of the Firm have served, and presently serve, in significant positions
in local, state and national bar associations and civic organizations. Mr. Serota is presently a
member of the Board of Governors of The Florida Bar and previously served on the Board of
Directors of the Dade County Bar Association. Mr. Weiss has served as a director of the Young
Lawyers Division of the American Bar Association. Mr. Pastoriza served as a judicial clerk to
the Honorable Mario Goderich, now on the Third District Court of Appeal.
Firm members also serve the community at large. Mr. Serota has served as chairperson
of the Metropolitan Dade County Independent Review Panel. He was recently appointed by
the Dade County Commission to serve as a member of the Community Relations Board. Mr.
Weiss is a member of the Public Health Trust and serves as the Chairman of the Jackson
Memorial Foundation and the Florida International University, Institute of Government,
Steering Committee. Mr. Heitman has served as a member of the Coral Gables Planning and
Zoning Board.
Each shareholder has a different area of governmental expertise which enhances the
Firm's ability to address a wide range of legal issues and problems which confront governmental
entities.
WEISS SEROTA 8c HELFMAN. P.A.
The Firm maintains offices in Dade and Broward County at the following addresses:
Miami Office
2665 South Bayshore Drive
Suite 204
Miami, Florida 33133
Phone: (305) 854-0800
Fax: (305) 854-2323
-2-
Broward Office
500 S.E. 6th Street
Suite 200
Ft. Lauderdale, FL 33301
Phone: (305) 763-1189
WEISS SEROTA & HELFMAN, P.A.
GENERAL STATEMENT OF EXPERIENCE
The lawyers at Weiss Serota & Helfman have extensive and varied experience in the
representation of municipalities, counties and other governmental entities in all areas of
municipal and governmental practice. Firm lawyers have served as assistant county attorneys,
city attorneys, deputy city attorneys, and as special counsel to more than 20 governmental
entities in the South Florida area. Combined governmental experience of more than 30 years
has resulted in a law firm which is especially sensitive to the problems of municipalities and
other governmental entities.
-3-
WEISS SEROTA & HELFMAN. P.A.
RICHARD JAY WEISS
Client Manager/Village Attorney
Mr. Weiss is a shareholder in the Firm. He would act as Village Attorney and have
primary responsibility for Village matters. He specializes in representing public entities in all
areas of the law. He has served as City Attorney for the City of Sunrise and currently serves as
City Attorney for the Village of Bal Harbour and the City of Sweetwater. Prior to joining the
Firm, he was an Assistant County Attorney for Metropolitan Dade County for seven years.
Mr. Weiss' extensive experience includes litigation in both the state and federal trial and
appellate courts.
Mr. Weiss is the author of numerous publications regarding municipal dispute resolution
and arbitration and is a frequent speaker on municipal law topics to groups such as the
American Arbitration Association, the Florida Association of Police Legal Advisors, the Florida
Public Employer Relations Association, the Florida Association of Municipal Attorneys and has
lectured at the Criminal Justice Institute at Broward County Community College.
PRESENT POSITION:
Shareholder
Weiss Serota & Helfman
FORMAL EDUCATION:
Tulane University, Juris Doctor, 1977
Tulane University, B.A. in Economics, 1974
-4-
WEISS SEROTA & HELFMAN. P. A.
EXPERIENCE:
Special Counsel To:
Broward County
City of Hialeah
City of Hollywood
City of Homestead
City of Lauderhill
City of Miami
City of Miramar
City of North Lauderdale
City of North Miami
City of Sweetwater
Metropolitan Dade County
Town of Bay Harbor Islands
Town of Davie
Town of Surfside
Village of Bal Harbour
City Attorney, Bal Harbour Village, Florida
Supervises and coordinates Village's legal work
City Attorney, Sweetwater, Florida
Supervises and coordinates City's legal work
PREVIOUS EMPLOYMENT:
Shareholder - Fine Jacobson Schwartz Nash Block & England
Assistant County Attorney, Metropolitan Dade County
Senior Attorney in Labor Law Section - Supervised all attorneys in office
working on union, personnel, litigation and EEO matters.
Served as Counsel to Dade County Departments of:
Building & Zoning; Human Resources; Community Development;
Employee Relations; Personnel; Housing/Urban Development;
-5-
WEISS SEROTA & HELFMAN. P.A.
Economic Development; and Planning
Counsel to Dade County Legislative Delegation (Lobbyist for Dade County)
Counsel to:
Zoning Appeals Board
Port of Miami (Labor, Personnel & EEO Matters)
Miami International Airport (Labor, Personnel & EEOC Matters)
Jackson Memorial Hospital (Labor, Personnel & EEO
Matters)
South Florida Sports Authority
Fair Housing Appeals Board
South Florida CETA Consortium
Water and Sewer Board
HUD Advisory Board
Minimum Housing Appeals Board
Dade County Sports Authority
Dade County Public Health Trust
PROFESSIONAL ACTIVITIES:
Editor - Stetson University Governmental Law Symposium
Chairman/Steering Committee, Florida International
University Institute of Government
Advisory Labor Counsel - Broward County Professional Fire Administrators Association
Published pamphlets and articles on topics such as Due Process, AIDS in the Workplace,
Alternative Dispute Resolution, the Fair Labor Standards Act, Privatization and
Veterans Preference.
American Bar Association, Director, Young Lawyer Division
The Florida Bar, Local Government Section, Labor Law Committee co -chairperson.
CIVIC ACTIVITIES:
Haven Center (Home for Retarded)
Board of Directors
-6-
WEISS SEROTA & HELFMAN. P. A.
Dade Public Education Fund
Board of Directors
United Way
Governmental Affairs Committee
Junior Achievement
Board of Directors
Dade County Pubic Health Trust
Member, Board of Trustees
Jackson Memorial Foundation, Chairman
7-
WEISS SEROTA & HELFMAN, P.A.
JOSEPH H. SEROTA
Mr. Serota is the senior litigator and a shareholder in the Firm. He has extensive
experience representing municipalities throughout South Florida in litigation matters relating
to race and sex discrimination, breaches of contract, labor, elections, tort claims, land use and
various other causes of action. Mr. Serota is also an accomplished appellate lawyer with
twenty-six reported opinions to his credit. Among his many successful defenses are the cases
of Rodriguez v. City of Hialeah, 716 F.Supp. 1428 (S.D. Fla., 1989) and F.O.P. v. City of
Hialeah, 815 F.2d 631 (11th Cir. 1987). These cases presented issues of federal discrimination
and state constitutional law.
In addition to his municipal experience, Mr. Serota has an extensive commercial
litigation background representing such companies as Burger King Corporation, Barnett Bank
of South Florida, Florida Memorial College, Michelin Tire & Rubber Corporation, American
Bankers Life Assurance Company and City National Bank.
Supplementing his legal experience, Mr. Serota was recently appointed to the
Metropolitan Dade County Community Relations Board by the County Commission and
previously served as a member and ultimately chairperson of the Metropolitan Dade County
Independent Review Panel from 1986 through 1989. The Independent Review Panel is the
organization created by the Dade County Commission to review citizen complaints against
county employees, including the Metro -Dade police. As chairperson of that organization, Mr.
Serota was personally involved in the investigation, evaluation and public hearings of numerous
complaints against Metro -Dade police officers and other county employees.
PRESENT POSITION:
Shareholder
Weiss Serota & Helfman
Principal Litigator, Litigation Supervisor
FORMAL EDUCATION:
University of Miami (J.D., 1978)
Princeton University (A.B., 1975)
-8-
WEISS SEROTA Sc HELFMAN. P A
EXPERIENCE:
Special Counsel To:
City of Boca Raton
City of Hialeah
City of Hollywood
City of Miami
City of Miramar
City of North Lauderdale
City of Sunrise
City of Sweetwater
Town of Davie
Village of Bal Harbour
PREVIOUS EMPLOYMENT:
1989-1991:
Shareholder; Coffey, Aragon, Martin,
Burlington and Serota, P.A
2699 South Bayshore Drive, Penthouse
Miami, Florida 33133
1978-1989: Shareholder and Associate; Fine Jacobson
Schwartz Nash Block & England
PROFESSIONAL ACTIVITIES:
Member, Board of Governors of The
Florida Bar, 1988 -present
Director, Dade County Bar
Association, 1984-87
Member, Board of Governors of the
Florida Bar, Young Lawyers
Section, 1980-83
-9-
WEISS SEROTA & HELFMAN. P.A.
Member, American Bar Association
Member, Dade County Bar Association
CIVIC ACTIVITIES:
Member, Metropolitan Dade County Community Relations Board, 1991 -present.
Member, Vice Chairperson and Chairperson of the Metropolitan Dade County
Independent Review Panel, 1986-1989
Member, Citizen's Task Force, appointed by the Dade County Commission to
recommend changes to the Independent Review Panel, 1989
Schools Committee Chairman, Princeton Club of South Florida, 1985-87
President of the Princeton Club of South Florida, 1988-90
Author of numerous articles appearing in the Viewpoint and editorial sections of the
Miami Herald and the editorial page of the Miami News, 1981-1989
Manager, South Miami -Coral Gables Khoury League Baseball Team, 1991
-10-
WEISS SEROTA & HELFMAN, P. A.
STEPHEN J. HELFMAN
Mr. Helfman is a shareholder in the Firm with a municipal practice concentrated in
zoning, growth management subdivision law and land development. He serves as Deputy
Village Attorney for the Village of Bal Harbour, providing advice on land use, building and
zoning matters. He has extensive experience with the State of Florida Growth Management
Act and has been extensively involved in the preparation and implementation of municipal and
county ordinances including land development regulations. Mr. Helfman has served as a
member of the City of Coral Gables Planning and Zoning Board and has been a guest lecturer
to the City of Miami Planning Advisory Board and the City of Miami Zoning Board on issues
of growth management.
Mr. Helfman has a Masters of Law in real estate finance and development. He is a
member of the American Academy of Trial Lawyers with extensive experience in the public and
administrative hearing processes.
PRESENT POSITION:
Shareholder
Weiss Serota & Helfman
FORMAL EDUCATION:
University of Miami (LL.M., 1983)
Nova University (J.D., 1982)
Tulane University (B.A., 1979)
EXPERIENCE:
Special Counsel to:
City of Coral Gables
City of Sunrise
City of Sweetwater
City of Virginia Gardens
Village of Bal Harbour
-11-
WEISS SEROTA & HELFMAN, P.A.
PREVIOUS EMPLOYMENT:
1983-1991: Shareholder and Associate; Fine Jacobson Schwartz Nash Block &
England, P.A.
PROFESSIONAL ACTIVITIES:
Member, City of Coral Gables Planning and Zoning Board
Lecturer, City of Miami Planning Advisory Board and City of Miami
Zoning Board
Author, "Consistency After Machado" - Florida Bar Journal,
1989
Member, Dade County Bar Association; Florida Bar Association;
American Bar Association; American Academy of Trial
Lawyers; Florida Planning and Zoning Association
CIVIC ACTIVITIES:
Member, City of Miami Mayors Economic Advisory Council
Member, Anti -Defamation League Civil Rights Committee
Member, Executive Board, City of Miami Multi -Ethnic
Interaction Program
-12-
WEISS SEROTA & HELFMAN, P.A.
GILBERTO PASTORIZA
Mr. Pastoriza is an associate with the Firm. He specializes in municipal representation.
He has an engineering degree and prior to entering law school, was a real estate developer with
expertise in telecommunication matters. He is a frequent speaker on Hispanic radio and
television.
PRESENT POSITION:
Associate\Litigation, Municipal Law
Weiss Serota & Helfman
FORMAL EDUCATION:
Nova University Center for the Study of Law, Juris Doctor, 1987 Magna Cum Laude
University of Florida, B.S. in Industrial Engineering, 1971
EXPERIENCE:
Special Counsel to:
Village of Bal Harbour, Code Enforcement Board
City of Sweetwater, Pension Board
City of Sweetwater, Zoning Board
City of Sweetwater, Code Enforcement Board
PREVIOUS EMPLOYMENT:
Law Clerk for the Honorable Mario Goderich, 11th Circuit Court Judge, 9/86-12/86;
Civil Division, Summer, 1986
Associate in the Real Estate/Land Use Department; Fine Jacobson Schwartz Nash
Block & England
-13-
WEISS SEHOTA & HELFMAN, P.A.
Owner of Latin American Communications Engineering; An Engineering Consultant
Firm, 1980-1985
Telecommunications Engineer, Southern Bell Telephone, 1972-1979
MEMBERSHIPS:
Cuban American Bar Association
Association of Cuban Engineers
The Florida Bar
Dade County Bar Association
Metropolitan Dade County Sister City Committee/San Jose, Costa
Rica
Miami -Roads Neighborhood Civic Association
-14-
WEISS SEROTA & HELFMAN, P.A.
ELLEN NOLEN SAUL
Mrs. Saul is an associate with the Firm concentrating in land use, zoning and real
property law, including real estate financing and the negotiation and preparation of agreements
for the development of land.
PRESENT POSITION:
Associate`Land Use, Real Estate
Weiss Serota & Helfman
FORMAL EDUCATION:
University of Florida College of Law, Juris Doctor, May, 1988
University of Florida, B.S. in Journalism and English, May 1985.
EXPERIENCE:
Weil, Gotshal & Manges - Associate.
Development work, including negotiating and analyzing zoning changes, and addressing
issues with respect to Developments of Regional Impact (DRIs) and concurrency.
Hughes Hubbard & Reed - Real Estate Associate. September 1988 - December 1988.
State Attorney's Office of Dade County - Certified Legal Intern. May 1987 - August
1987.
MEMBERSHIPS:
The Florida Bar
Dade County Bar Association
Women's Bar Association of Dade County
-15-
WEISS SEROTA & HELFMAN, P.A.
REPRESENTATIVE CLIENTS
The Firm currently serves as special counsel to numerous local government entities in
the South Florida area. The following is an illustrative list of clients which are or which have
been represented by partners in the Firm:
COUNTIES:
Dade County
Broward County
CITIES:
Village of Bal Harbour - General representation since 1985.
Town ofBay Harbor Islands - Representation in EEOC proceedings, labor negotiations
and discrimination charges.
Town of Davie - Representation in contract negotiation on waste management issues.
City of Hialeah - General labor representation and specialized litigation representation.
Members of the Firm have handled discrimination, personnel, arbitration and complex
litigation matters for the City. A member of the Firm was successful in obtaining a
directed verdict for the City of Hialeah in a highly controversial lawsuit involving an
employee who had been terminated for failure to speak English properly over the radio.
City of Hollywood - General labor representation and specialized litigation
representation. The Firm was retained by the City of Hollywood to conduct negotiations
with its unions and is in the process of completing those negotiations. The Firm has also
provided labor advice to the City on several other labor related matters.
City of Homestead - General labor representation of City with respect to police and
personnel matters. The Firm has also provided labor advice to the City on EEOC and
other matters.
-16-
WEISS SEROTA & HELFMAN, P. A.
City of Lauderhill - General labor representation for several years. A member of the
Firm has been outside labor counsel to the City of Lauderhill providing personnel,
EEOC and other labor related advice.
City of Miami - Members of the Firm have served as special litigation and labor counsel
to the City on various occasions.
City of North Lauderdale - The Firm is serving as special litigation/labor counsel.
City of North Miami - The Firm is outside labor counsel to the City of North Miami and
advises the City Attorney and staff with respect to labor, EEOC, personnel and other
labor -related matters.
City of Sunrise - Members of the Firm have provided outside counsel services to the
City of Sunrise since 1985. Members of the Firm have represented the City in a variety
of litigation and other matters.
City of Miramar - The Firm serves as outside labor counsel with respect to labor and
personnel matters.
City of Sweetwater - The Firm currently serves as general counsel to the City of
Sweetwater providing overall general representation, including litigation.
-17-
WEISS SEROTA & HELFMAN, P. A.
SIGNIFICANT OPINIONS
Rodriguez v. City of Hialeah,
716 F.Supp. 1428 (S.D. Fla., 1989)
F.O.P. v. City of Hialeah,
815 F.2d 631 (llth Cir. 1987)
-18-
WEISS SEROTA & HELFMAN, P.A.
RODRIGUEZ v. CITY OF HIALEAH 1425
Cii. as llf MI*. 1421 (LAM. . 1II 1
lion. See Nettlsi, :aura. The court has
diacovered no errors in its ruliaga regard•
ing the admissibility of certain evidence.
Attar a careful renew of the pleadings and
the court being fully advised in the premis-
es, it is hereor
ORDERED and ADJUDGED that defers•
danta motion for judgment nottvithstand.
ing the verdict is GRANTED. ?lainnffs
motion for judgment notwithstanding the
veraiet is DENIED. Defendanv8 motion :a
altar judgment is MOOT.
Further. ilia/ judgment Ls hereby en•
tared in favor of defendant.
DONE and ORDERED.
Bernardino ("Bernie")
EODRIGUEZ. Plaintiff.
v.
CITY OF HIALEAH. Defendant.
No. 88•-429-Civ.
United States District Court.
S.D. Florida.
Miami Division.
April 28. 1989.
Discharged Mica officer brought avii
rights action s!eging timt Ilia discharge
was ease* on acearit d.iscsuriration. the
Dtame Court, Nesbitt. J., held that officer
did not mike a pram facie showing of
discrimination.
Diamissea.
1. Civil Bights x44(1)
To state a prima facie ogee of racial
discrimination. plaintiff must show that he
belongs to a rarsai minority, that he appiied
for and was qualified for the jai, for which
employer wu sawing applicants. that he
was released despite his qualifications and
that the position remained open after his
rejection and the employer continued to
sees applicants from persons of the qualifi-
cations. 42 t;.S.C.A. f 1981; Civil Rights
Act of 1984. 101 et seq., 42 U.S.C. A.
¢ 2000e et sec.
2. Civil Rights 4s48
If Civil Rights piainaff proves prima
face case of diacrimulauon. employers
burden to articulate a legitimate nondis-
criminatory reason for its actions: once the
employer provides au= a reason, plaintiff
must prove that the reason given was
merely a pretext for the employers action.
42 U.S.C.A. 4 1981: Civil Rights Act of
1984. § 701 at seq., 42 t..S.C.A. 4 2000e et
seq.
3. Civil Rights X46
Where a claim of employment ciiscr i-
nation is based on mere statements. which
do not consomme sufficient evidence of re,
ciai discrimination to present a genuine is-
sue of fact for the jury, directed verdict is
proper.
4. Civil Rights 0D42
Where allegations of racially motivated
statements are insufficient to state a prima
facie case of racial discrmlination. dismiasai
of the complaint at the pleading stage is
appropriate.
5. Civil Rights an44(1)
Discharged police officer did not estab-
lish prima face case of discrimination
based on accent in view of admitted prob
?ems r^. =' urication and driving a.iciis.
i2 U .a.C. s . 4 1981: Civil Rlgli s Act of
1964. § 701 et seq., 42 U.S.0—t. 4 20000 tic
seq.
6. Civil Rights 0.44(1)
Fact that sergeant had told police offi-
cer prior to his discharge that he shouid
"spear English like they do in Queens.
New Jersey, not Little Havana." did not
show that discharge was based on officers
accent. where there was no evidence that
the comment was communicated to anyone
who was in a supervisory position with
regard to hiring. 42 U.S.C.A. 4 1981; Civil
Rights Act of 1964. 701 et seq., 42 US.
C.A. § 2000e et sea.
1426 718 FEDERAL SUPPLEMENT
Marx D. Swanson. Miiauu. Fla., for
joaeon H. Scrota, Edward Guedee, Fire
..acooeon hchwartz Nun Block tit England.
Mianu. Fla.. for defendant.
ORDER GRANTING Er D..NT'3 MC
TIONS FOR DIRECTED t.P.DIC
AND INVOLUNTARY D.ZMIS"cAL
NESBIT:, District Judge,
This cause carne before this Court for
by ' zri on Count 1 of the i irst Amend -
ea Complaint alleging a violation of 42
1981. and for trial by the Court on
Count II, alleging a violation of 42 U.S.C.
4 2000e et seq. (Title VII discrurr i atlonl.
Plainti*f Qerlarsino Rodrigues rested atter
:WO and one-half days of the presentation
of testimony and other evidence. at Which
mime the Defendant, City of aialean
("City"), moved for a directed verdict as to
Count I and an involuntrry dism:ssai as to
Count IL
Rodrigues filed a aiz-eount amended
complaint on May 9, 1988, contending that
!:e was terminated from the iiialean Police
Deparcnent because of accent discrimina-
tion.'
FINDINGS OF FACT
Rodrigues was appointed to the Hialeah
police academy program effective Septem-
ber 24. 1986 and was released from the
City police department in June 1986.
While at the police academy, Rodrigues
was the only trainee who failed the ciristng
test twice. and he also failed report "nit,
ing, receiving the lowest grace of all Clty
recruits. Furtner. Rodrigues was a nerv-
ous individual who had diffeulty dealing
with stress. During inspections. he
dropped his weapon. damaging it; on an-
other occasion. he received a reprimand for
rutting his finger on the chigger during an
irspeccon. Rodriguez graduated from the
police academy number 17 in a class of 30.
L On February 21. 1989. this Court entered an
artier of Ditnussu against seven usaivtduaa av
fendants in this ease. pursuant to Plainuff3 Feb.
roar, S. 19119 stiptuatton ar vetuntery dtuataist.
Further. on Marcn 27. 1989. the Court grantstt
Througnout the field training grogram
with the City, Rodrigues' iastracars pre.
pared numerous wr.' an evaluators of Lice
plaintiff on a daily, weekly and "endof•
phase "oasis whirl delineated significant
problems in the areas of written anti oral
^m•.•,:^. :.:tat cna. driving skills. and L'.8 Abu•
icy to accept constructive erne 3m. Racin.
Tun !9v ewes :early every one oI 'arse
written evaluations and tailed to make any
written objections to them.
Among his police instructo:a Ter: two
Hispanic officers who prepared evaluations
and comments regarding Rodriguez' defi-
ciencies in a fashion similar to that of the
non-iiiapan:e pollee instructora. Rodrigues
testified that Officer Carlos Zayaa. who
:pace numerous notations of deficarcies in
Rodrigues' performance. had root discrimi•
mated against Rod:iv:az. Rodrgt ez also
ad:rutted that the three problem areas eta
by Officer Zayaa. who noted nnwert•ia ds-
ficienaes in Rodrigues' performance, had
not discriminated against Rodrigues. Rod-
rigues also conceded that the three prob.
lem areas noted by Officer Zayas in his
"end of -phase evaluation" were the Same
erne mentioned when Major Manuel Mar
tin advised Rodriguez that he would not be
hired as a permanent police officer.
On June 6. 1386. while riding with Ot!!-
cer John Richardson, Rodrigues made a
radio transmission which couid not be un-
derstood by the dispatchers or by the desk
sergeant, Sgt. David hit.Elligat Altar its -
timing to the transmission described by
Diapatcner Mixon as "jargon," Sgt McE11i•
gat called Officer Richardson to advise him
of the problems with Rodrigues' trans-
mission. Rodrigues testified that Sgt.
Mei:Eget also called him at this time com-
plaining about the rr ' "n»sion. Rodri-
guez claims that during this conversation
Sgt. McElligat told him to "speak English
like in Queens, New Jersey, not Litie Ha•
vans." Sgt. McElligat testified that he
could not recoil ever having talked to Rod-
Defendaa&s tnonnn for partial suameaty 11.411 -
mutt faith respect to Coffins III Lad V. wad
notes teat Counts V asp VI wars conmiad by
??aintul to be moot in Light of Plaintiff's voiun-
tar r nanuaaat of the individual dstfanomnta.
RODRIGUEZ v. CITY OF SIALEAI
01.64116 i.aupp. 141a (&2T I1!!)
rigttes. Sgt. McElligns wan a desk ser•
grant in charge ' i ccrrnturemr.ens. and he
has nothing whatsoever m do with hirttg
and had no derision -mad mz au:.herztq
this regard. Furthermore, the wan no
evidence that thia alleged etsttr.^.rnt
enmmunleated to anyone wrto aid have tir-
ing or deelsiorernsking anthore7 wtte: re-
gard to Rodrigues.
The memorandum prepared by Sgt.
Mc ligat relating ��' ser.$ ,is
m:atslon
merely =realms that :,here wan Jiff+eei
in underetsnding the tenzrr ion .rd ...Let
` a queacon of "went" creeateci uriy minor
diff. r.ales. The =ea:ren mated that
u �Ltu ts
�
the resin prcblem was the word order
mace the nn ..
which 1/ r,�i►1ni2li0A :.iL'^.:�':::g(Ci.b
There wan :.t: hteQt 02
alleged statement
Rodrigues received extensive trailing, =-
eluding remedial driving in:t e::t ee sea ee
"extended phase" to assist him in u. ercom-
iag his problems. However. during the
"exceeded phase." Rodriguez de,rnonan ated
erretc and ttnprot'ssaionel crmdurt tcwerds
a prisoner. ;:l8 also =correctly _tepared
an arrest report and than tailed bat'ic to is
superior. Sgt Taah. who was
rounaoi hurt on his problems At the dud cf
this pardesieric Soubleenma day Maier
Manuel Martin, a. Aierantc-Amcr:car.
,:rode a decision based upon Rodriguez' tn-
record that the City ;d nor
offer Rodrigues permanent employment
and that his police powers would be re-
moved.
The over wheltirag evidences iwlatittrd to
be ctic and aceen= by Rodriguez eetab-
liahed that Rodriguez experienced sigmf-
cent pruoloma with regard Le oral and 'writ-
ten correntlrdeations and dr rtng.
dente supported the City's chum that Rod-
rignee was not able to tendon as an ir d --
pendent reficer as rrcti-oci i,-t the •'silent•
parer phase., of his teaming. As a re-
sult he was given an -extended phase.''
daring which time the decision not o hire
hire was made. The evidence also denier..
strated that neither Rodr.; :es' heha ecr
nor this performance W11 pr^aic :Lb:0 In to
trainmg program.
1427
Sgt. Ellen O'Riordan, who was in charge
of the field training program. ;attdi a that
she counseled Rodrigues on numerous oo-
.Mona. observed his driving f'irstrland. dis•
cussed his performance with the field tram-
ing instructors. end reviewed all written
repot regarding hia performance. Sgt.
O'Riardan t -a that, based on Redri-
guer performance in the City's training
program. he was not qualified to be a po-
officor. !)ff'eer Peiaer, who also in-
structed Rodriguez. testified similarly
the' t::env cf the officers t8s :red that
tev liked Rodriguez and that they were
hoping he wtMid ;.:.;..-ova his performance
=o thet he could become a permanent ;oiiee
off zee. However. tits pointed Qu► that
while F.odrigtes had !Its "desire" to be a
qualified officer. he did not have the "abili-
ty" to be one.
Rodriguez presented ao a ridencs ether
than his own :.pinion establishing _wit he
waa qualified for a job u a permanent
;dice cfwcer with the City. At best. P„odr'-
emet derecasteated that he received accept-
thle ra ire a u. mere ants 'However. Rod-
ri eez did no: cant► his burden of showing
that he wan qualified in the areas which
Ya1or 'darem cited when he advised Rudri-
racz of the City's decision .tot to hire him
u a permanent nice officer Sgt. O'Rior-
wan test'!ad that d trainee Tnust be acceot-
ab!e in i1 police bki,Ih, oat just the majority
of them.
Rodriguez established no evidence of any
kind dernonatraung discsmiastory intent
by the City. Nor did Rodrigues set forth
any avidane4 which. in ,. light must favor.
able to �' eiriguee, could ewteblish that the
City'o motivating factor in deciding not to
hire Rodriguez was based un the fact that
Rodriguez is Hispanic or that he has an
accent. aforeover, Rodrigues pre vented re,
eredible evidence of dieproportis note disci-
pline in his attempt to show that the City
discriminated agamat him. He presented
r o evidence involving individuals similarly
situated and relates to incidents similar is
nature so as to estabtiih that Rodrigues
Was treated differently than other proba-
tionary employees.
1428 716 FEDERAL SUPPLEMENT
CONCLUSIONS OF LAW
(1-41 To state a p.rtera feels yte of
metal diacrri.-muot a : plaint!' :.'.'..:.t show
that (0 he belong to t :ac:'. r ; ii}
he applied fir end Vas qua.afiad '14 job
for wnich employer n -as seeking applicants
liti) despite his cuolif.=rs. Ka wes reject -
and (iv) eft = rele ttr... } e uoaiffrn
remained open end the employer continued
to seek stipli:anm from; persons f
., Q.....a...:....no. .:fCL.YJsrlr[Ll
Do: i= (.7or ..crouOn v 4i_ :.
'If34 !C2 n3 1317 . s24 u6 T.74,4
868 (1973). ;f he DWI:tifff arnves a i ri.".a
!•its rase. :ha employer then as the bu:-
den to aciculate a legitimate. non-distr.-.i-
natoa : reason for its &Gnus with regard to
the employee. AL Onee the employer yrr
vides such a reason. the p1ai ff :nwt
prove that the reason rivet was merely a.
pretext for the employer's attona in order
to prevail on the clai.:i of discnrolhazcn
Id. at 804, 98 v Ct at 1325.
Additionally, the plaintiff must e.no:v the
=tenet of d:acriminaecry ;'its:it, winch 3
totally letidng in the instant case. .1
E'.oventh Circuit recently heid is Rs!l:rte v.
Rote of Florida, Department of Law E'n-
forrsrreent, 868 F.2d 397, 403 (11th Cir.
1989), that;
If the defendant successfully rebuts the
plaintiffs prima facie case. the plaintiff
must carr the ultimate buster' ui estab-
lishing by a preponderance of tha em
dente that discriminatory intent motivat-
ed the denial of the piaiat3L's pro:Loma.
Where a claim of discrimination is based
upon mere statements. not conatitating
aufficient evidence of racial disermmiaarson
to present a genuine issue of fact for the
jury, a directed verdict is proper. Price v.
Loukhe d Space Operations Co., 856 F.2d
1503 (11th Cir.1988). Moreover, where sile-
gations of racially motivated statements
are insufficient to state a prtnia facie case
of racial diacrimmation. dismissal of the
complaint at the pleading st s.ge is approprr
ate. Terry v. Cook 868 F.2d 373 (11th
Cir.1989).
3. Although prec lutes varier 42 U.S.C. 4 1931
ant Title ViI differ. both -manes reepare proof
of the same elements If the pisinuif alleges
(51 Rodrigues has initially failed wee.
mblish a r.rinis fhelo rut of':uri"ainado::.
li."-i;:ez did =1. gels/dish :hat. ha was
lutil ad f .i . ikaidou iii perroaaent
! r: ;;.`fear Vat le Cry-, beau.' on the
errien o 7:r esentad takes i a light cost
fivera'is to P. dziguez. taz, di:a_gt
" t -se __*.s.—`..'_' on. acilLitten
existence :f ��:nt problems as crom��m� Tunica.
t.io:, timid 4?1Vtt �i i k l!. diecniily, „a
.1..ru ... 7.411:r 4! mile rrhrstdll'C the Q ythpns `I
Sr; ^T.frat lx and =air Peiser that,
7.e+ r.ni (1u .ilZleu. csaaiiy, .00
r:vet failed w eatah)iah that the City eon,
...Mucci to task aiplltkats fur the bi=le posi-
tion of ;ernmanent off:'urt from persons
with the same cuslifkatiotis as RodrijSaet.
;even j a prima fast Qsiss had 'Owen
1.embliehed, Rodrigues failed, ee t♦ either
If law w establish that the City'a legit.
:rt:are r.:n-diser3.—.+inatory reawaa for its 64 -
not to hire Rodrigues :anstituteu a
pretext. On the ccnnazy, Rodrigues. own
testimony eiearli establiahed :tat the tea+
sons for the City': decision nct to hire hire
one. perry.-.ssat Janis wars legitimate and
not prat= Rodriguez' own testimony
demonstrates that his a12 gation of inten-
tional discr=irAton z based purely on
speculation. con3ecm:re, and surmise. The
entry of summary judgment is apptvprista
where an employer presents legitimate Wm -
discriminatory reasons for im ac'dom and
the plaintiff fails to rebut etch evidence.
Oliver v. Digital A'gvipmw u Corp., 346
F.2d 103 (tat Cir.1988) (eannm1r'p judgment
granted on ¢ 1981 and Title VII claims);
Suck! v. Motorola, 703 F.2d 892 (9th Cir.
1988). In two and onerhelf days of trial.
Rodrigues presented no evidence of dis-
criminatory intent or disproportionate disci-
pline. See, e.g., Murray v. Thistledown
Rasing Club. Inc., 770 F.2d 68, 69 (6th
Cir.198b) ("different treatment does not
constitute disparate treatment absent evi-
dence of a disparate comparison to a sim-
ilarly aitnsted coworker or evidence sup-
porting an allegstioa of illegitimate rev
sons for employer's actions"); Boner v.
Board of Com"anf:sioners of Little Rode
purposeful disertohn anon. Catty v. Tames Re•
firths( Alerhetal/ C•. 634 Bsupp. 87, 92
(D.De1.193a).
RODRIGUEZ v. CITY OF 111ALEAR 1429
Cho Si 716 Mop. 1421 (8JIJ1a 16616
Mtenpiaspai Water Works, d T4 F.2d 693, 691 environment despite incident during which
(8th Cir.1982) (in order to determine wheth- colleague yelled raeaai slurs at her). Addi-
ar employees are similarly situated, court tionaily, in Pries and Terry the alleged
must look to whether the employees are statements were made by indivldnais in -
accused of the same offense but disciplined volved in the hiring process. The alleged
in different ways). Rodrigues simply statement in the caw at bar was not made
failed to show disparate discipline or pre- by anyone with hiring authority.
tact In short, Rodrigues has failed to estab-
In Fragants v. City at County of Hono-
lulu. 49 Fair Empioyment Pracnce Cases
487 (9th Cir.1989), the Court held that a
prvspescttve employee's accent had a delete-
rious effect on his job performance, justify-
ing the employers decision not to hire him.
Further, the Court stressed that the plain-
tiff wee not hired because of the poor
effect his accent had on his communication
skills, not merely because he had such an
MOM. Here, Rodriguez has not even
shown that his accent played any part in
the hiring process. Rather, the evidence
demonstrates that Plaintiff was not re-
tained for a rnyrted of legitimate reasons.
In any event, assuming, arppuendo, that
Rodrigues toads a prima facie cam he
failed to show that the City's reasons for
termination were pretexual, or that he was
fired merely because he had an accent
' (6l With respect to the alleged state-
ment that Rodrigues should "speak Eng-
lish iike they do in Queens. New Jersey,
not Little Havana," there is no evidence
fat such a statement. if in fact made, was
Made by an individual involved in the hiring
goons. Nor was there evidence to demon-
strate that the emu:neat was commune: tack
to anyone who was in a supervisory post-
(ion with regard to hiring. Mere allege.
Baas which may appear racially motivated
®.their face do not 8uff'lcientiy establish
diet riminamry intent so as to permit the
hags to go to a jury. Sea e.g., Terry, 866
1414 at 379 (bare silegattons that the esa-
r "didn't care whether ne hires any
algge on his $ta.1 or not" was inauifi-
eismt as a matter of law to state a prima
'fiele ease of rectal discrimination,. Cf.
4'^"'u a New York City Dept of Car
Pleetona, 705 F.9upp. 979. 983 (S.D.N.Y.
1 (Meek eorreetton officer amid sat
TAU VII and i 19211 claims aaa-
.out of racially discriminatory wonting
lish a prima fade cue and, even if a prima
facie case had been established. Rodrigues
failed to present any evidence demonatrat•
ing that the City's reasons for its actions
were no more than a pretext. Where there
is but one reasonable conclusion based on
the evidence and testimony presented. a
directed verdict is warranted. Pelletier v.
Stuart -,lames Company, 868 F.2d 1550,
1554 (11th Cir.1989). See alio Carter v.
City of Miami, 840 F.2d 578. 58142 (11th
Cir.1989) ("a mere scintilla of evidence does
not establish a jury question.... Rather,
there must be s substantial conflict of evi-
dence to support a jury question.") (foot
note omitted). With respect to Count IL
the Court under Rule 41(h) is free to weigh
the evidence and pass on the credib8fty of
witnesses. Cox v. C.JL Masiand & Sons,
inc., 607 F.2d 138, 144 n. 8 (5th CIr.1978);
Continental Casually Co. v. DLH Seraia
es, Inn. 752 F.2d 253, 355-56 (8th C::.1985).
Accordingly'', it is
ORDERED and ADJUDGED that:
1. The City'e Motion for Directed Ver•
diet with regard m Count I of the First
Amended Complaint is hereby GRANTED.
2. The City's Motion for Involuntary
Dismissal with regard to Count II of the
First Amended Cueriplaint is hereoy
GRANTED.
This cause is hereby DISMISSED with
pr'e'judice in accordance with this ruling. A
separate Finai Judgment will be entered
this day. The Court reserves jurisdiction
to award costa and attorney's fees.
DONE and ORDERED.
FLA. LODGE. FRAT. ORDER OF
cue i8 P 24111
question determined by balancing the eq-
uities.'
Id. 471 U.S. at 366, 105 S.CL. at 2001, 85
L.Ed.2d at 393. The Court concluded its
opinion by stating
We thus resolve the gueanona on
which we granted certiorari: because the
case is here to an interlocutory posture,
we do not consider the estoppel ruling
below or the specific equitable factors
Identified by the Court of Appeals for
granting relief. We do think that the
court was correct In concluding that
'such relief as the court determines is
appropriate.' within the meaning of
1415teX2), means that equitable consid-
erations are relevant in fashioning relief.
471 U.S. at 374, 105 S.Ct. at 2005, 86
L.Ed.2d at 398.
The First Circuit's view that equitable
considerations. less restrictive than those
presented in Anderson, control reimburse-
ment determinations is consistent with oth-
er circuits. See Alamo Huts Ind. Sck
Disc t,. Slats Bd of Edi c., 790 F.2d 1153,
1161 (6th C1r.2988); McKsnsis v. Smith,
771 F.2d 1E27, 1586-e.6 (D.C.C1r.1985). Al-
though this Circuit ha' not directly ad-
dressed the issue since the Burlington de-
cision, this Court has expressed the view
that the Anderson holding an reimburse.
meat availability wee no longer good law m
light of the Supreme Court's Burlington
decision_ Man.aks v. School Si of Pinel-
las County, Ponds, 782 F.2d 912, 915-18
n. 2 (11th Cir.1986), cut denied -- U.S.
105 S.Ct. 809, 88 L.Ed.2d 784 (1988).
In light of Burlington, the district
court's reiiaaoe on Anderson and Powell
was misplaced. Anderson presents too re-
strictave a test to determine the appropri-
ateness of reimbursement u a remedy.
Whether reimbursement is appropriate. and
at what amount, should be deter ntned by
baianang the equities of the particular
case.
Although the plaintiffs suggest in their
brief that this Court should order reim-
bursement. the defendants correctly argue
that they have had no chance to present
facts an the equity issue and the case must
be remanded so that the district court can
POL. v. CITY OF HIALEAH 631
(tttaCtr. 1W
consider the reimbursement claim under
the approprmta standard.
VACATED and REMANDED.
o to Inman Mita
� t
FLORIDA STATE LODGE. FRATE&
NAL ORDER OF POLICE. on Behalf
of HIALEAH LODGE 12. Plaintiff•Ap-
peilant.
v.
CITY OF HIALEAH. FLORIDA. a
municipal corporation.
Defendaat•Appellee.
No. 884813.
United States Court of Appeals.
Eleventh Circuit.
April 24, 1987.
Police association filed section 1983
civil rights action seeking to have court
declare Florida labor relations statutes pro.
riding for resolving impasses declared un-
constitutional and seeking to permanently
enjoin the city from unilaterally reducing
employee benefits and to restore any em-
ployee benefit already impaired. On cross
motions for summary judgment, the United
States District Court for the Southern Dis-
trict of Florida, No. 85.2984 CIY--TFS,
Thorns' E. Scott, J., granted city's motion
for summary judgment: and police associa-
tion appealed. The Court of Appeal held
that (1) Florida's impa+w resolution stet.
ute was constitunnai. and (2) city'e redue-
Lion of sick leave sad vexation benefits did
riot constitute substantive due process vio-
lation or unconstitutionally impair the obli-
gation of contract
Affirmed.
632
a15 FEDERAL REPORTER. 2d SERIES
1. Cansdtutionai Law at16tb)
Police union was not depraved of due
process oy being prevented from obtaining
s meaningful hearing before the city eoun•
cil during impasse proceeding due to city's
rose u aninterested party in collective
bargaining and negotiations where inter
este involves were created by state law,
rather than by Constitution, and union and
,zits council had benefit of a special mas-
ters' recommendation. U.S.C.A. Conan.
Amends. 5, 14.
2. Constitutional Law af77(2)
Public employees did not have constitu-
tionally protected property intsresta in fu-
ture value of their sick leave accrual which
had already been earned where there was
no preservation of rights statute allowing
for the immediate vesting of a payout rate.
U.S.C.A. Const.Amenas. 5, 14.
3. Constitutional Law 2?8.4(4)
Members of *police union did not have
conaututionaily protected property interest
in the future value of their aireedy earned
accrued sick leave which was impaired by
city's limitation of the amount of taoney
which an employee could potentially reeeive
at future date in a floating rate of pay for
the cash out of sick leave accruaL U.S.
C.A. ConatAraenda. 5. 14.
4. Municipal Corporations ont2a(5)
City civil service rules and regulations
were not :sanatory previsions transform-
ing aozmed sick leave payout rats into a
"legitimate claim for entitlement' by a vol-
=tardy resigning city employee, which
could not be reduced uaaer impasse resolu-
tion procedures. in view of clear statutory
mandate and supporting case authority pro-
viding that statutorily defined impasse pro-
cedures took precedenee over evil service
rules. Wear* F.S.A. 3 447.601.
S. Constitutional Law a=217(2)
Future public employees who had not
yet been hired did not have property inter-
ests in a right for vacation accrual such
that reduction of accrued vacation from
thirty days to twenty days would violate
their cansutudonai nghta. L'.S.C.A. Cont.
Amends. 5, 14.
6. Labor Relations 410283
Impasse resolutions imposed by city
council did not impair police unions obli-
gation of contract. on grounds that those
resolutions allowed for vacation and sick
leave accruals in terms other than those
provided in civil service rules. under stat-
ute providing that conflicts between rules
and impasse monitions were to be re.
3oiven in favor of impasse resolution.
West's F.S.A. 447.201 et seq., 447.401.
447.403.
Robert D. Klausner. Peltier. Schweaoek.
Finkelstein. Klausner, P.A.. Hoilyw000.
FIa_ for plaintiff -appellant.
Joseph K. Scrota. Fine. Jacobson.
Schwartz. Neap. Block tit England. Miami,
Fla.. for defendant -appellee.
Appeal from the United States District
Court For the Southern District of Florida.
Before RONEY. Chief Judge,
HATCHETI', Circuit Judge, and
TU'TTLE, Senior Circuit Judge.
PER CURIAM:
In this case we affirm the district court's
determination that section 447.403 is conau•
rational and that the city of Hialeah. Floe
ida's reduction of sick leave and vacation
benefits did not constitute a substantive
due process violation or unconstitutionally
impair the obligation of contract.
FACTS
In 1984. appellant Florida State Lodge,
Fraternal Order of Police tFOP), engager
in collective bargaining negotiations with
the City of Hialeah. Florida tCity), pursu-
ant to the provisions of Chapter 447. Part
II. Florida Statutes. After lengthy negou-
ations. the parties reached an "impasae as
defined in Florida Statutes. seetion 447.408.
and proceeded through the process set
forth in that statutory provision for the
resolution of an impasse.
Following a hearing before a Special
?faster. u requireo by aeeaon 447.408.
both the FOP and the City re)eetea carton
FLL LODGE. FRAT. ORDER OF POL v. CITY OF HIALEAH 633
Cite as ♦ 1 ! rid all (tither. »et71
findings made by the Special :Mater, there-
by bringing the matter for final resolution
to the Hialeah City Council.
There were six issues upon which the
parties were deadlocked: (1) wages. t2)
night shift differential. (3) assignment pay,
(4) the pay plan, (5) sick leave acczuat. and
(6) vacation accrual. Two of these issues.
vacation accrual and sick leave accrual, in-
volved retrospective interests. In resolv-
ing these six issues, the City Council man-
dated a result in the vacation and sick leave
areas which the FOP alleged wu contrary
to the existing Civil Service Rules and Reg-
ulations of the City of Hialeah.
Vacation and sick leave accruaia are gov-
erned by the provisions of rule XIII, sec-
tions 2 and 3 of the Hialeah Civil Service
Rules and Regaiations. an ordinance of the
City of Hialeah. Florida. The City Council
proceeded to impose terms of a collective
bargaining agreement pursuant to Florida
Statutes, section 447.408(4Xd).
As a result of the application of this
imposed collective bargaining agreement,
on August 28, 1985, the FOP filed suit in
the United Staten District Court for the
Southern District of Florida. FOP based
its suit on 42 U.S.C. 3 1988. as it sought to
have the court declare unconstitutional the
provisions of Florida Statutes, aectior. 447 -
403(4), which provides the means for re-
solving impasses reached in coilereve bar-
gaining between public employers and pub-
Ilc employee organizations in the state of
Florida. FOP also sought a permanent
injunction against the City of Hialeah. to
prohibit it from unilaterally reducing em-
ployee bandits and to restore any employ-
ee benefits already impaired.
Both parties ailed motions for summary
judgment. After a hearing on Mann 24,
1986. the district court in a Memorandum
Opinion denied FOP'S motion for summary
judgment, but granted the City's motion
for summary judgment. and disnussed
FOP's cue with prejudice. FOP appeals to
this court.
DISCUSSION
We affirm the district court, based on
the reasoning in the portion of the aistrict
court's Memorandum Opinion set forth be-
low -
Plaintiffs Due Process Claim
The gravamen of FOP'S due process
claim is twofold. First. FOP contends
that the statutory procedure for resolv-
ing an impasse in collective bargaining
negotiation is unconsututionai because it
provides for the legislative body which
has oven bargaining u a party to the
contract to become a neutral body and
decode what the final disposition of the
collective bargaining process will be.
See F!a.Stat. $ 447.408(4)(6He). The con-
sequence of this procedure, FOP alleges.
is a deniai of a 'meaningful opportunity
to be heara'—thus. a denial of due pro-
cess. Second. FOP alleges that the City,
pursuant to FIa.Stat 447.402(4Xd),
retrflacuveiy reduced its sick leave and
vacation oenefia. This action is pur-
portedly a substantive due process viola-
tion as well u an unconstitutional im-
pairment of the obligation of contract.
Each contention will be considered.
Was FOP Afforded Due Process?
FOP cartends that it war nut afforded
due process because the City': role all an
Interested party in the oohs etive bargain-
ing negotiations prevented a rkeuniagful
hearing before the City Council during
the impasse proceeding. The law cieari),
does not support this contention.
In Ash v. Board of Edited:/on, 699
F.24 822 (6th Cir.1983) the board of edu-
cation wu s signatory to a collective
bargaining agreement which reduced
Teachers' salaries from the original
amount stated in their employment con-
tracts. The tauhen were subsequently
provided a hearing before the board.
That hearing wu part of the grievance
procedure and the teachers. like FOP,
presented their arguments and had am-
ple opportunity to be heard. The Sixth
Circuit determined that the hearing be-
fore the board was not tainted. conse-
quently, it satisfied the minimum re-
quirements of the due process clause.
684 615 FEDERAL REPORTER. 2d SERIES
Similarly, in Moms vCity of Dan-
ville. 744 F.2d 1041 (4th Cir.1984) the
issue was whether a hearing before the
city manager who fired a police chief
comported with due process standards.
The court stated:
we do not agree that under the
circumstances of this case Church
(the City Managerj ceased to be an
impartial decision maker simply by
virtue of having made a conditional
decision to terminate Morris.
Administrative detssionrnakers. like
judicial ono, are entitled to a "pre-
sumption of honesty and integrity,"
(cimuons omitted) and absent a
showing of bias stemming from an
"extrajudicial source", they are not
eonstitttonsliy precluded from mak-
ing the determination that they are
directed to make by their employer.'
744 F.2d at 1044.
The court concluded by holding that
'Who district court accordingly erred
in holding that merely by virtue of
his prior participation in the proceed-
ings leading to Morris' discharge,
Church was in effect constitutionally
disqualified to participate further.
and in requiring that Morass be af-
forded a de novo hearing by persons
other than Church.'
744 F.2d at 1046.
Ill Applying the above principles to
the facts at bar, the Court concludes that
FOP was afforded a 'meaningful oppor-
tunity to be heard' before the City Coun-
cil! Moreover, FOP and the City Coun-
cil had the benefit of a Special Masters'
recommendations. Quite frankly, this
Court cannot fathom how, on the one
hand, the hearing before the City Council
could be constitutionally sound es to the
four issues which were resolved favor-
ably to FOP, and, on the other hand, be
characterized u unsound u to the two
issues resolved unfavorably. The law
does not recognize such an anomaiy. In
summary, the Court's review of the
record demonstrates that the FOP was
afforded a meaningful hearing. Aceord-
ingly, the Florida statutory procedure for
resolving an impaase in collective bar-
gaining negotiation is not unconstitu-
tional on its face or as applied.
The Impasse Resolutions in
Controviray
It is well established that the four-
teenth amendment's due process protec-
tion of property interests extends to a
public employee's legitimate expectation
of continued employment. Estes v. Tus-
caloosa. Alabama. 696 F.2d 698 (11th
Cir.1989) (citing Arnett v. Kennedy, 416
U.S. 184 (94 S.Ct. 1833. 40 L.Ed.2d 151,
(1974». However, not ail employment
relayed grievances rise to the level of
constitutional claims. Estes. supra. at
900. In order to invoke due process
guarantees, there must be a constitution-
ally protected property or liberty inter-
est Id These interests are created. not
by a Coasutunon. but by an independent
source such u state law. Bd. of Re-
gents v. Roth, 408 U.S. 564, 577 (92 S.Ct.
2701, 2709, 83 L.Ed.2d 5483 (1972). More
specifically, an individual must have
more than a uaiiaterai expectation to rise
to the level of a property interest for due
prnosss purposes --there must be a 'legit-
imate claim for entitlement' Id. This
Court, therefore, must examine the vaca-
tion and sick Leave provisions in contro-
wetly to determine whether they are rec.
ognised property interests, and. if so,
whether an unconatitatfonal depravation
occurred.
Sick Leave Accrual
At the conclusion of the impasse hear-
ing, the City Council adopted the Special
Master's recommendation regarding the
sick leave provisions. That remmmenda-
t ion set forth a plan which 'froze' the
rave of payout at each employees exist-
ing rats of pay on the effective date of
the contract, July 17, 1985. rather than
provide a 'floating' rata of payout' The
question then is whether the employees
have a Constitutionally protected proper-
ty interest in the future value of their
sick leave accrual which has already been
earned.
FOP relies heavily on Florida Sheri f*
else'* v. Dept. of Admin., 408 So.2d 1033
(F1s.1981) and State es rel. Servitor v.
Les, 2 So.2d 127 (Fla.1941) for the propo-
sition that where s vested property inter-
est exists the terms of that contractual
reiationsnip may not thereafter be ad-
versely altered or effected. In F7a.
Sherffr Assn., supra the Florida Su-
preme Court examined a situation where
the legislature has reduced prospecuveiy
from three to two percent the special risk
credit that the plaintiffs had earned to-
ward retirement. The plaintiffs had al-
leged that this was an impairment of
their contract with the state.
After reviewing the chronology of case
law, the court held that Fla.Stat. % 121.-
011(2/(4 the preeerration of rights sat-
ute, 'vests edj aII rights and benefits :<r
heady earned under the present retire-
ment plan so that the legislature may
now only alter retirement benefits pro-
spectively.' 408 So.2d at 1087 (emphasis
in- original). The court emphasised that
its holding, which modified the prior rule
that permitted the legislature to modify
benefits retroactively or prospectively
at any time, was based upon the preser-
vation of rights statute. It is important
to note that the Florida Supreme Court,
in discussing the employee's property in-
terest. concluded that absent a prior/vs"
lion of rights statute the employee's re-
tirement benefits would vest at the time
of retirement°
(2.31 FOP's assertion of a property
interest is without merit. First, it pro-
vides no analogous 'preservation of
rights' statute which would allow for the
immediate vesting of a payout rate. As
a result, the facto sub *dice fall square-
ly within the general rule stated in Fla.
Shsryjb Ass'st, supra. and ea rei
Striver, repro. See also ObeFriander
v. Pei airs. 740 F.2d 118 (2d Cir.1984) (no
valid property interest in future reim-
bursements). Second. FOP Incorrectly
concludes that the City retrvactiveiy al-
tered the accrued time. No such mow.f
canon or deduction occurred. Rather the
FLA. LODGE. FRAT. ORDER OF POL. v. CITY OF HIALEAH 635
CW..•1S Pad `Si 111th Cir. 1107►
City limited the amount of money which
an employee coved potentially receive at
some future date. Moreover. the City
generously provided each Plaintiff with a
31,000 cash awara to compensate for any
alleged loss.' Accordingly, FOP has no
consututionaily protected property inter-
est in a 'floating rata of pay' for the cash
out of sick leave accrual. Future pay-
ments are simply not protected interests.
As the Florida Supreme Court opines.
the rationale for such a rule 1s patently
obvious—
.. To hold otherwise would mean that
no future iegisisture could in any way
alter future benefits of active employ
ees for future services, except in a
manner favorable to the employee.
This view would, in effect, impose on
the state the permanent responsibility
for maintaining a retirement plan
which could never be amended or re-
pesied irrespective of the fiscal condi-
tion of this state. Such a decision
could lead to fiscal irresponsibility.
408 So.2d at 1037.
(41 Additionally, FOP argues that the
City's Civil Service Rules and Reguia•
bons are mandatory provisions which
transform the payout rate into a legit•
image claim far entitlement.' t At first
blush. FOP'S position appetite sound
The very terms of the Civil Service Rules
direct the calculation for the payout to be
made at the employee's last rue of pay.
However. FOP ignores completely the
conflict between this result and that pro-
vided vis-a-vis the impasse procedure.
Section 447.801, Florida Statutes. ex-
pressly resolves any eonflict between a
local civil service law and the statutory
impasse procedure in favor of the state
statute. Interpreting a similar conflict.
the Florida Supreme Court stated:
Accordingly, while the city has the
authority to enact civil service ordi-
nances. stag statutes will take prece-
dence over such ordinances when spe-
cific canrticrs arise.
Indeed. this Court has long held as a
general rule that a statewide statute
636
815 FEDERAL REPORTER, 2d SERIES
prevails over a conflicting municipal
ordinance . . . Accordingly, any con-
flict arising between 447.401 and the
Civil Service Alt of the City of Cassei-
berm►, Flonds. must be resolved in fa-
vor of section 447.401.
City of Ca teeberry v Omni County
Police 8ener+olent Ass'n., 484 [4821
So.2d 886 (F11.1986); ere also Hotel, Mo-
tet, Restaurant Employees and Bar-
tenasry Union, Local 737 v. &cambia
County School Board, 426 So.2d 1017
(Fla. let DCA.1988). In view of the clear
statutory mandate and the supporting
cue authority, this Court reject' FOP's
contention that the Civil Service Rules
take precedent over the ataunonly de-
fined impasse procedures. Consequent-
ly, no property interest exists for the
payout rata of accrued auk leave.
Vacation Accrual
FOP also alleges a constitutional depri-
vation regarding its members accrued va-
cation time. The impasse resolution u
psaseci at the City Council meeting
states:
1) Vacation Accrual: That the plan
stay as is with 80 days for current
employees. and change to allow 20
days for new buses.
Sri Exhibit 3 to Defendant's Motion for
Summary Judgment
(51 The plain language of the resolu-
tion states that the tan (10) day redaction
applies only to future employees. Clear
ly, no such property interest exist= as to
them. In Oberiander v. Percales, 740
F.2d 116 (2d C1r.1984) a medicare health
provider sought relief because its
medicaid reimbursement rate was re-
duced allegedly without due process.
The Second Circuit looked to New York
law and determined that there was no
property interest in future reimburse-
ments, however, it did determine that
there was such an interest for 'recoup -
mint of monies for services already per-
formed... 740 F.2d at 120. A review
of Florida law indicates that there is no
property right for vacs on accrual as to
future employees. Fla. Shers, s Aes k
=pre: a= reL Stringer, supra; Voo-
rhea v. City of Miami, [145 Fla. 4021,
199 So. 318 (1940). It is difficult to com-
prehend how FOP could suggest that a
property interest exists for unearned va-
cation time from nonexistent employees.
Accordingly, FOP has suffered no consu-
tutionai deprivation.
Impairment of Contract
(6) Lastly, FOP alleges that the im-
passe resolutions imposed by the City
Council impair its contract bemuse those
resolutions allow for vacation and side
leave accruals in terms other than that
provided in the Civil Service Rules. As
noted above. conflicts between those
rules and the impasse resolutions are to
be resolved in favor of the resolutions
Moreover. u the Florida Supreme Court
has indicated, FOP was free to exclude
the--ooliective bargaining agreement
from 4 447.401 of the Florida Public Em-
ployees Relations Act—
... [Al anion and a public employer
would be perfectly within their rights
to• voluntarily exclude some aspect of
their collective bargaining agreement
from section 447.401 and utilise ezcin-
siveiy the dispute resolution machinery
of a civil board. All that would be
required -is a mutual agreement to do
so.
City of Cas elberry, supra at 840. A
review of the agreement attaches to the
Complaint reveals that FOP not only
failed to exclude 0 447.401 from its
terms but rather specifically included it
as a mandatory provision.* Whatever
the results of the impasse proeeduree.
FOP cannot now complain. FOP is
bound by the terms and procedures to
which it agreed.
Conclusion
In light of the Collective Bargaining
Agreement the Florida Statutes and the
relevant case authority, this Court con-
cludes that Defendant City of Hialeah.
Florida has demonstrated that it is enti-
tled to judgment as a matter of law.•0
Accordingly, it is
LLA.. LOCAL L'NION 1518 v. I.L..1. 637
Ch..s 4sa Peg Y7 111th Car. 11171
ORDERED
lows:
1. Plaintiff's Motion for
Judgment is dented.
Z. Defendant's Motion for Summary
Judgment sat granted Judgment is en-
terer in favor of Defendant City of His -
leak. Florida. This cause is dismissed
with prejudice. The Court reserves juris-
diction in order to entertain an appropri-
ate (notion for costs tutu other relief.
t Vaataois Acertr,i 2Tme—The Caitacuve Bu -
gaining Agreement unposed by the City via •
the imams resolution mesas provides that all
FOP employees hired after Jury 17. 1913 accrue
only twenty (20) days of vacation tuns for the
purpose of cash payout upon separation from
servtoe as opposed to the thirty (30) Jaya pro.
Ailed by the evil ethics ruin and ratulitions
POP taws titan the vacation acs -teal time to
property and that the City's 'unilateral reduc-
tion' of the tense constitutes a depravation of
property without due promo of Lily.
Stets Law Accred —'rite Sick Leave Accrual
provisions are also allegedly moiled by the
civil service ruin and etegtuattons. Those regu-
lesions establish the right to accrue up to 110
days sash leave upon saparatioa from'ervtce at
the employees them ailing rate of pay, despue
the rate of pay u which the hours have been
ennui. The resolution imposed by the City
'marl the aiasout value of all existing sick
leave hours at the rate of pay whirls winged for
welt empio,ee on Juiy t7. 1415, the effective
date of the new Collective Bemoaning Agree-
mem. This. FOP alleges. promise fora 'less
generous programs for the payout of future
hours than that which niters under the civil
service noes and regulation.' Plaintiff, there-
fore. contends that the frees hu 'depraved all
existing employees of the economic value of the
seek leave admasiy earned and for labor which
has already been rendered: The remit. elles-
wily. to a depnvatton of property without due
practise of law.
:The fundaosetuai requirement of die pis
cesr is the opportunity to be heard at a mean-
ingful time sad pines. Aanen m+ Taylor, 431
U.S. 340 (517. 101 S.C. 1901. 61 Lisi.2d 4201
(1911) (overruled on other grounds by 0anrds
iWlfars,t 474 U.S. 327. 106 S.Ct. 662 (81
1 n 1a 1162) (1916).
4 Sas sawn nose L
''the court in reaching/his conclusion. relied
upon .Aire es red. Strbeger x Le, 2 So.24 127
(Fla./941) anti 'rated that 'whether an Amigo.
nary or mandatary plan. once a parnetpaung
rnetnosr restates retirement manta. the benefits
under the terms of the act an effect at the ume
of the employee's retirement vest. 401 Sold at
1036.
"POP also tnaltaa the erraneeus aaaumpuon
that ail employees wit separate from service at
and
ADJL'DGED
as
Summary
fol. a rate of pay teats than that earned on July
17. 1913. This umtenpdon teuores the powMl.
try that an employee may be subject to demo,
(ion. or on a larger scale. that an saosrcne.
board pay durum could be institutes tt the
Clay sustained an economic CUM
t Session 3(h) of Rule W1 provides. In ri .
rant pa= 'Upon vaiuntary resignation. the em-
ployee shall be paid at his last rate of pay....
Upon death or renranant. the ampioyee or iris
estate shall be paid u the etsspioyse s [au nu
of pay for all unused seek leave.'
1 Se discussion supra pp. 1.9.
' Article XX of the Agreement states: 'Any
Impasse in nesoaatton shall be dealt with in
accordance with State Swans* and/or Items.
bona:
Article XXXV stops '... No impasse under
this ',anon shall hot be subject to the impasse
preeedtire provided for in this Agteesnettc.'
10 Of counts mindful that u mavaat. City has
the b=cien of demonstrating that there are no
material fast in dispute. A/1ekee v. Klass ea
C., 391 US. 144 (90 S.CL 1591.26 LEd.2d 142)
(1970). However. this standard must be viewed
in Britt of the purpose of the summery Jude
mem rule which is to preserve the Court from
frivolous claims. Raid's MA V. General .E1 .
inc Ca. 498 F.2d 91. 100 (Sth Cis 1974).
AFFIRMED.
INTERNATIONAL LONGSHOREMEN'S
ASSOCIATION, LOCAL UNION 1616,
and Intern,donad Longshoremen's Al.
soeiation. Local Union 1410.1, Pisin-
tifs-Appeiless.
1.
INTERNATIONAL LONGSHOREMEN'S
ASSOCIATION. an Intaenadostati
Union. Ddendsnt.Appsdlant.
No. 88-TSS*.
United State* Court at Appeals.
Eleventh Circuit
April 24, 1987.
Local union brought action in state
court for injunction to prohibit intern tion-
ai (union from impiemencing plan to merge
local union with another locai union. Case