After nearly two and a half hours of intense arguments heavy on case law references regarding the emergency hearing on the pending law suit against the Ultra Electronic Music Festival’s contract with the city of Miami license versus lease agreement status filed by the plaintiff Brickell Homeowner’s Association attorney David Winker; the motion for a temporary injunction was denied by Judge Rodolfo A. Ruiz on March 15th in the Dade County Courthouse.
“We are missing all those key components that have traditionally under case law transformed what is otherwise called a license to a lease,” said Judge Ruiz in a long and detailed summary of his denial.
“What I’ve pointed out are key distinctions in the lease world that keep us in the world of licenses, exclusivity, assignability, conveyance and irrevocable analysis, would eliminate the success of liking it on the merits…lack of irrevocable harm is where we can end. Once you’re missing one factor your ability to get an injunction is done.”
The judge’s first action early on in the deliberations was to grant Event Entertainment Group (Ultra), represented by Scott D. Ponce, a partner at Holland and Knight LLP, their request to join the action formally as in indispensable party to the lawsuit.
Winker stated initially that his intention was never to stop the electronic music festival, scheduled for March 29 to 31 with an anticipated daily attendance of up to 60,000, but merely to do a re-write on a contract he claims is a lease and not a license as it is distinguished. His case rests on what he and his clients believe to be disingenuous language to circumvent the city’s own laws requiring a competitive bidding process.
“It’s about the city violating its charter…my actions are mischaracterized as an action stopping the concert,” said Winker.
To which the judge replied, “If I rule in your favor…if this was procured without competitive bidding…it is flawed, the entire deal will fall apart and I would be putting a stop to the actual festival.”
Before the ruling request on calling the agreement a lease and not a license failed, Winker introduced his case acknowledging they were in new territory with citizens challenging local laws.
Defense attorney Ponce summarized several case law precedents suggesting essentially that an organization cannot claim special injury or injury in county, much less city, litigation proceedings.
City attorney present for the defense, Raquel A. Rodriguez (who later acknowledged she was a Key Biscayne resident), also commented on a case in Key Biscayne from 1980 when a taxing organization sued against a county development on similar grounds and lost.
In 2016 a public referendum led in part by then City Commissioner Francis Suarez (who is the current city mayor and a proponent of the Ultra Festival on Virginia Key) passed allowing residents to sue the city when its charter was purportedly not being followed. A move that was influenced by an interest to challenge controversial real estate deals.
Editor’s Note: Mayor Francis Suarez’s office has declined repeated requests by the Islander News for comment related to Ultra on Virginia Key, preceding last Friday’s hearing.
The judge said the case laws were silent on special injury as he seemed to be leaning toward no standing. Winker defended his position (he is also challenging the city of Miami in two separate lawsuits concerning the Melreese Golf Course land proposal by the David Beckham/Mas group for a soccer stadium).
“I feel very strongly that you are dismissing there is not injury when they are not following their own laws,” said Winker. “There are a lot of injuries that are happening…as a result of the city not following its own law.”
Winker added that the BHA represented 35,000 residents and that there was an “honest person” standing there representing the group, referencing Mr. Ernesto Cueva, President of the Board of Directors of the Brickell Homeowners Association, who was sitting in the first row.
The judge’s final denial standing summary was the following:
“Standing must come with injury and there must be a causal relationship to that injury,” he said.
“I understand why the theory that has been advanced that the injury is automatic when the city deviates from standard procedures as governed by the charter. That interpretation is not supported by case law at least no case law that is on the books today.”
“Maybe the law will be pushed in that direction but as we stand here today the injury requirement and its inextricable connection to standing remains the law of Florida; remains the law of the United States. The court is not in a position to look at the statute or a charter amendment that is silent on that burden.”
After the proceedings Cueva spoke out in the courtroom challenging the judge’s decision.
“We the people” he said loudly waving his index finger. “And we’re going to the polls…the city bypassed the process.”
To which Judge Ruiz most courteously responded, “I think you had the right to bring this and seek redress and through his (Attorney for the plaintiff Winker) efforts he may get you guys there…we’ll see what happens when this is taken over by your company counsel. But for this purpose I believe the injunction sought is not legally appropriate with the case law we discussed today.”
Attorney for Ultra Ponce gave a statement to Islander News immediately following the proceedings, “We are very grateful for Judge Ruiz’s ruling, which denied the emergency motion for a temporary injunction. My client looks forward to welcoming everyone to the festival beginning on March 29 at Virginia Key.”
Winker’s final remarks after the hearings were that the fight continues.
“I honestly think the judge has it wrong on the lease versus license. I knew the standing was going to be the real tough issue. There is long standing case law in Florida that says the remedy when the city breaks the law is to vote people out and I really think that needs to change…the citizens in a public referendum gave themselves that right and it’s not being enacted. The courts are struggling with this issue and we will appeal.”