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LAW OFFICES OF RAFAEL E. ANDRADE, P.A. 1224 WASHINGTON AVENUE MIAMI BEACH, FLORIDA 33 139 TELEPHONE: 305.531.9511 WWW.RANDRADELAW.COM FACSIMILE: 305.673.5734 RALPH@RANDRADELAW.COM April 25, 2016 VIA EMAIL: JimmyMorales@miamibeachfl.gov and RaulAguila@miamibeachfl.gov Jimmy L. Morales City Manager City of Miami Beach 1700 Convention Center Drive Miami Beach, FL 33139 Raul J. Aguila City Attomey City of Miami Beach 1700 Convention Center Drive Miami Beach, FL 33139 RE: SUNSET LAND ASSOCIATES, LLC V. MARK FESTA ET AL MIAMI-DADE COUNTY CASE NO. 2016-004547 CA 01 Dear Mr. Morales and Mr. Aguila: I represent Beach Towing Services, Inc. (“Beach Towing”) and Mark Festa, This correspondence is in response to the letter dated April 15, 2016 from Deco Capital Group and its affiliates (the “Developer”). The Developer bought several parcels in Sunset Harbour in 2014 with the intent of changing the law to increase the building height for their hypothetical project. They initiated the above referenced litigation concerning a covenant which prohibits parking on three of the parcels. The covenant is owned by Mark Festa, a former principal of Beach Towing, Mr. Festa has made it clear the covenant is not for sale. The covenant was recorded in 2003 and was in the chain of title when the Developer bought the parcels. The Developer sent the above mentioned letter and amended its lawsuit to stop Beach ‘Towing from using their property. This was done in retaliation for my client exercising their constitutional right to free speech in opposing the Developer's proposed height increase ordinance.’ The Developer's frivolous letter and amended lawsuit serve only to escalate matters. Their attempt to use the City as its private army to do their dirty work and further their financial interests is reprehensible. The Developer’s malicious and unprovoked attack occurred well before the expiration of the 60-day period during which the City Commission directed the parties try to reach a settlement. The Developer's bad faith acts and willful disregard of the City Commission’s direction evidences their arrogance and contempt, not only for the City Commission, but also for neighboring property owners and residents. " The amended complaint is a SLAPP suit (Strategic Lawsuit Against Public Participation). See F.S. 786.295. As you know, Beach Towing is a duly licensed business and has lawfully used their property at 1349 Dade Boulevard for their towing business for over thirty-five (35) years under consecutive licenses issued by the City (See Business Tax Receipt RL-86098263). The property is located in the Sunset Harbour CD-2 district. A towing business is a “main permitted use” in said district. Sec. 142-302 of the Code defines main permitted uses in the district to include “commercial uses.” See Rinker Materials Corporation v. City of North Miami, 286 So.2d 552, $53 (Fla. 1973) (“[s}inee zoning regulations are in derogation of private rights of ownership, words used in a zoning ordinance should be given their broadest meaning when there is no definition or clear intent to the contrary and the ordinance should be interpreted in favor of the property owner... [wJhere words used in an act, when considered in their ordinary grammatical sense, clearly express the legislative intent, other rules of construction and interpretation are unnecessary and unwarranted... a statute or ordinance must be given its plain and obvious meaning.”); see also Brown v. Saint City Church of God of the Apostolic Faith, Inc., 717 So.2d 557, 559 (Fla. 3d DCA 1998) (“four basic function in construing any statute, of course, is to ascertain and give effect to the legislative intent... certain rules of statutory construction have evolved to guide us in our performance of this function and these rules apply with equal force and effect to the construction of local ordinances.”). Thus, Beach Towing’s business as a commercial use in the CD-2 district is permitted as a matter of law. Additionally, Sec. 142-305 of the Code expressly lists the “prohibited uses” in the CD-2 district, and notably, expressly lists additional “prohibited uses” in Sunset Harbour. A perusal of Sec. 142-305 of the Code reveals that a towing business is not a prohibited use in said district generally, and more specifically, in Sunset Harbour. “Under the principle of statutory construction, expressio unius est exclusion alterious, the mention of one thing implies the exclusion of another.” ‘Moonlit Waters Apartments, Inc. v. Cauley, 666 So.2d 898, 900 (Fla. 1996); see also Mandelstam vs. City Commission of the City of South Miami, 539 So.2d 1139, 1140 (Fla, 3d DCA 1988) (permitted uses must be interpreted broadly, prohibited uses strictly, so that doubts are resolved in a property owner's favor... [zJoning laws are in derogation of the common law and, as a general rule, are subject to strict construction in favor of the right of a property owner to the unrestricted use of his property.”). Accordingly, there is no need to look beyond the clear and unambiguous language of Sec. 142-302 and 142-305 of the Code to determine that Beach Towing’s business at 1349 Dade Boulevard is a main permitted use as a matter of law. State v. Burris, 875 So.2d 408, 410 (Fla. 2004) (“[w]hen a statute is clear, courts will not look behind the statute's plain language for legislative intent or resort to rules of statutory construction to ascertain intent.”). The Developer's argument emanates in the twilight zone, Their argument that “[b]y permitting towing in the City’s industrial zones, the City has excluded towing in all other zoning districts” is absurd. “A basic tenet of statutory construction compels a court to interpret a statute so as to avoid a construction that would result in unreasonable, harsh or absurd consequences.” State ¥. Atkinson, 831 So.2d 172, 174 (Fla. 2002); see also Karell v. Miami Airport Hilton, 668, So. 2d 227, 229 (Fla. 1 DCA 1996) ([It is the duty of the court] “to interpret and apply statutes as written, so far as it possible to do so, and not as one party would like to have them written.”), ? Pursuant to Section 114-1 or services for monetary gain.’ the Code, “Commercial Uses means any activity where there is an exchange of goods Further, although an agency’s interpretation of the statute that itis charged with enforeing is entitled to great deference, if the agency’s interpretation conflicts with the plain and ordinary meaning of the statute, deference is not required. Osorio v. Board of Professional Map Surveyors and Mappers, 898 So.2d 188, 190 (2005); see also State v. Egan, 287 So.2d 1, 4 (Fla. 1973) {elven where a court is convinced that the Legislature really meant and intended something not expressed in the phraseology of the act, it will not deem itself authorized to depart from the plain meaning of the language which is free from ambiguity.”). The main permitted uses listed in the I-1 zoning district include the following: qd) Q) 6) @ (3) ©) o (8) (9) 0) a (12) (13) (4) as) (16) Assembly or packaging of goods not utilizing heavy machinery, including food and beverage products, small electronics, watches, jewelry, clocks, musical instruments, and products from previously prepared materials (cloth, leather, canvas, rubber, ete. Light manufacturing, including: ceramic products, glass products, hand tools, and electronic equipment; Professional, business, research or administrative offices, either as a main permitted use or as part of a permitted industrial use; Printing, engraving, lithographing, and publishing; Wholesale businesses and sales, warehouses, mini and other storage buildings, and distribution facilities, except those storing or distributing flammable or explosive materials; Automobile service stations, including car wash, auto repair, and towing services; Machine shop, welding shop, furniture, cabinet and wood working shops, glass blowing shop; Plumbing, electrical, and other similar type shops, which may wholesale and store parts on site; Tailoring services, including dry cleaning; Main use parking garages and parking lots; Utilities; Landscaping services, including nursery facilities; Commercial uses that provide support services to the light industrial uses and to the adjacent RM-3 residents, including retail sales, photocopying, coffee shop, standard restaurant, video rental, bank; Marine-related uses; Religious institutions with an occupaney of 199 persons or less; and Any use similar and compatible to the uses described in this district and the district purpose as determined by the planning director. ‘The Developer's specious argument taken to its logical conclusion would render all of the listed main permitted uses in the I-1 district “excluded” and “illegal” throughout all of the other zoning districts in the City. Countless businesses would have to be immediately closed. ‘The Developer’s argument is absurd. Beach Towing has proudly served Miami Beach since 1977. They are a long-standing ‘community business that provides essential public safety and traffic control services to the City, as well as necessary services to residents and property owners. Beach Towing looks forward to continuing to serve and maintain their harmonious relationship with the City and its residents. Based upon the forgoing, it is unnecessary to address the remainder of the Developer's tortured and twisted reading of the Code, and the City should summarily disregard the Developer's letter dated April 15, 2016 and allow the Court to adjudicate the issues raised in their amended lawsuit. Respectfully submitted, Rafael E. Andrade, Esq.

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