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Sanchez v. Miami-Dade County

Florida Court of Appeals, Third District

April 25, 2018

Christopher Sanchez, Appellant,
v.
Miami-Dade County, Appellee.

         Not final until disposition of timely filed motion for rehearing.

          An Appeal from the Circuit Court for Miami-Dade County, Antonio Marin, Judge. Lower Tribunal No. 13-32644

          Beckham & Beckham and Pamela Beckham and Robert J. Beckham, Jr., for appellant.

          Abigail Price-Williams, Miami-Dade County Attorney, and Joni A. Mosely and Sabrina Levin, Assistant County Attorneys, for appellee.

          Before SUAREZ, SALTER and LUCK, JJ.

          PER CURIAM.

         Christopher Sanchez and Noel Pozos were shot while in Miami-Dade County's Benito Juarez Park attending a birthday party. In separate lawsuits before different trial court judges, Sanchez and Pozos sued the county because it negligently failed to allocate off-duty police officers as security to protect the partygoers. The county moved for summary judgment in each case based on sovereign immunity under Florida Statutes section 768.28(9). The trial court in the Pozos case denied the county's summary judgment motion. We dismissed Pozos' appeal because the trial court's unelaborated denial did not determine as a matter of law that the county was not entitled to sovereign immunity. See Miami-Dade County v. Pozos, No. 3D15-2167, 2017 WL 621233, at *1 (Fla. 3d DCA Feb. 15, 2017) ("Because the trial court did not determine that, as a matter of law, the County was not entitled to sovereign immunity or immunity under section 768.28(9), Florida Statutes, the County was not authorized to appeal the trial court's order, and we therefore dismiss this appeal as one taken from a nonfinal, nonappealable order.").[1] Chief Judge Rothenberg dissented. She would have found that we had jurisdiction and the county was immune from Pozos' claim.

         Unlike Pozos, the trial court in the Sanchez case granted the county's summary judgment motion, concluding that the county was immune under section 768.28(9). Sanchez has appealed, and because final summary judgment was entered in favor of the county, there is no jurisdictional issue as there was in Pozos. We have jurisdiction over final judgments. The issue here is the one left unanswered by the majority opinion in Pozos: whether the county's sovereign immunity barred Pozos and Sanchez's negligent security claims. We agree with and adopt the portion of Chief Judge Rothenberg's Pozos dissent concluding under the facts of this case that the county had sovereign immunity under section 768.28(9), and affirm the judgment in favor of the county.

         FACTUAL BACKGROUND

         Chief Judge Rothenberg correctly described the summary judgment evidence.

On August 24, 2012, Eli Salgado purchased a Miami-Dade County Park Foundation membership for $149. This membership included a coupon book containing several promotional items, including two tickets to the zoo, a 50% discount coupon for golf, and a coupon for the use of a park shelter without payment of the requisite rental fee. Along with Salgado's membership and the coupon booklet, Salgado was given a copy of the Park's rules and regulations to be followed when renting a facility at the Park. These rules contained a section regarding when permits and off-duty officers are required and provided notice to Salgado that it was his responsibility to obtain the correct permit(s) and to hire off-duty police officers under certain circumstances. For example, these rules provided that when a D.J., live music, or speakers are going to be used, the person renting the facility or hosting the event at the Park must obtain a broadcast permit and hire and pay for off-duty police officers. Depending on the type or size of the party or event, other permits are required, and again, Salgado must hire off-duty police officers to provide security for the event. Specifically, the rules and regulations provided that if Salgado was expecting over a certain number of guests, then he would be required to hire two off-duty police officers and obtain a special events permit. The rules and regulations additionally stated that the Park's employees would not be responsible for providing any of these items.
When Salgado rented a shelter at the Park for his September 22, 2012 birthday party, he simply asked to rent the shelter and used the free rental coupon contained in his membership coupon booklet. He did not advise anyone that he was going to hire a D.J., and he did not obtain any permits or hire any off-duty police officers. Instead, he procured two private security officers to provide security at the party.
The only Park employee present for this after-hours private party was Diogenes Martin, a part-time Park Service Aide, whose responsibilities were to clean the restrooms and the Park before and after an event and to keep the area clean and change the trash bags during the event. Also present was a teenage volunteer who was helping Martin that night. Victor Jenkins, the Goulds South Dade Zone Manager who is responsible for managing seventeen parks for Miami-Dade County Parks and Recreation, testified in his deposition that the County has only budgeted for twenty-seven park security officers to service all of the recreational facilities throughout the County. These officers are directed to mainly patrol the beaches and marinas on the weekends. Because the County does not provide security at these private parties and events, it requires the patron renting a park facility to contact the police department and hire off-duty officers for certain events.
Martin testified in his deposition that he performed his duties as required on the night of the party. He made sure the restrooms and area were clean, the trash was properly disposed of, and the trash bags were changed when the cans became full. He explained that Salgado was celebrating his eighteenth birthday, and the party consisted of mostly sixteen-to-eighteen-year-olds who were eating, dancing, and just having a good time. Salgado's parents were present, and there were also two large men wearing "Security" T-shirts present who appeared to be patrolling the area and providing security for the party. He did not see anyone using drugs, fighting, or having a confrontation with anyone. Everything was calm and everyone seemed to be having a good time when all of a sudden, at around 10:00 or 10:30 p.m., he heard shots fired. As soon as he realized that some of the kids had been shot, he called 911 and then called his supervisor.
Inga Portilla, a Park Manager, confirmed that Park Service Aides are only responsible for maintenance within the Park. They do not provide security, do not check to see if the renter has obtained the required permits, are not trained in crime prevention, and are not authorized to "police" the area. She also confirmed that after Salgado paid his membership fee, a booklet was sent to his house containing the rental coupon and a copy of the Park's rules and regulations. These rules and regulations are also posted at the Park. Portilla explained that "once we rent the facility . . . we don't have anything to do with direct involvement of the parties, " and that it was Salgado's responsibility to follow the rules, obtain the necessary permits, and hire off-duty police officers if he was having a party that required off-duty police officers, as "[w]e are not responsible for the party."
Pozos presented no evidence to refute any of the above referenced evidence. The affidavit/statement provided by Salgado, the renter and host of the party, does not refute the testimony of the park employees or the physical evidence. Salgado did not dispute that he had received a copy of the Park's rules and regulations related to rentals of the Park's facilities. He merely states that when he rented the pavilion he was not advised that he needed to hire off-duty officers and that he did not recall if anyone had asked him how many people he expected would be attending the party.

Id. at *10-11 (omissions and alterations in original) (emphasis removed).[2]

         DISCUSSION

         Chief Judge Rothenberg properly applied the summary judgment evidence to the principles of sovereign immunity articulated by the Florida Supreme Court.

[E]ven where a duty is owed, sovereign immunity may bar an action for an alleged breach of that duty, see Pollock 882 So.2d at 932-33; Henderson, 737 So.2d at 535; Kaisner, 543 So.2d at 734, because in Florida, "governmental immunity derives entirely from the doctrine of separation of powers, not from a duty of care or from any statutory basis." Kaisner, 543 So.2d at 737.
When addressing the test for determining when a governmental entity enjoys sovereign immunity, the Florida Supreme Court held "that the separation-of-powers provision present in article II, section 3 of the Florida Constitution requires that 'certain [quasi-legislative] policy-making, planning or judgmental governmental functions cannot be the subject of traditional tort liability.'" Wallace, 3 So.3d at 1053 (quoting Commercial Carrier Corp. v. Indian River Cnty., 371 So.2d 1010, 1020 (Fla. 1979)). On the other hand, decisions made at the operational level - decisions or actions implementing policy, planning, or judgmental governmental functions - generally do not enjoy sovereign immunity. Commercial Carrier, 371 So.2d at 1021. "Planning level functions are generally interpreted to be those requiring basic policy decisions, while operational level functions are those that implement policy." Id. (footnote omitted).
While nearly every endeavor involves some level of discretion, it is the governmental quasi-legislative discretion exercised at the policy-making or planning level which is protected from tort liability. Wallace, 3 So.3d at 1053; Yamuni, 529 So.2d at 260. Thus, in addition to the five basic principles identified by the Florida Supreme Court in Trianon, which have been listed at the beginning of this analysis, the Court recognized that "there were areas of government activity where orthodox tort liability stops and the act of governing begins, . . . as well as the distinct principle of law . . . which makes not actionable in tort certain judgmental decisions of governmental authorities which are inherent in the act of governing." Trianon, 468 So.2d at 918 (internal citations and quotation marks omitted). Further, "certain discretionary governmental functions remain immune from tort liability . . . because certain functions of coordinate branches of government may not be subjected to scrutiny by judge or jury as to the wisdom of their performance." Id. (internal citations and quotation marks omitted). . . .
[T]he unrefuted evidence supports the legal conclusion that the County made a discretionary policy/planning decision to allow patrons of its parks to rent its facilities for private parties or events. Relying on its legislative/permitting/licensing authority, the County enacted certain rules and regulations governing the rental and use of its parks and the park's facilities. Based on the County's limited resources, it exercised its discretion to assign only twenty-seven officers to the Parks and Recreation Department to service all of the parks, beaches, and County-owned recreational areas located throughout the county and to direct those officers to primarily patrol the public beaches and marinas on the weekends, rather than directing them to patrol and monitor private parties being held in public parks. The County, therefore, included certain restrictions and requirements within its enacted rules and regulations and rental agreements, which the party or event host was required to follow. Among other things, these rules and regulations required the renter to go to the police department and (1) obtain a broadcast permit if using a D.J., live music, or sound equipment; (2) obtain a special event permit if over 200 guests were expected to attend; and (3) hire off-duty police officers under each of these scenarios. The rules and regulations and the rental agreement specified that the County's park employees would not be responsible for the failure to meet any of these requirements.
When Salgado purchased his Park membership, he was sent a copy of these rules and regulations. Salgado, however, did not abide by these rules and regulations when he used his free coupon to rent a pavilion for his birthday party. Although he had a D.J. and sound equipment at the party, he did not obtain a broadcast permit or hire off-duty police officers from the police department. Whether he was additionally required to obtain a special event permit and hire off-duty police officers based on the number of guests he expected to attend is unclear because the evidence does not reflect whether Salgado expected so many people to attend and whether there were more than 200 guests at the party. This issue is nevertheless irrelevant because, based on Salgado's use of a D.J. and sound equipment, he was required to hire two off-duty police officers anyway. However, instead of obtaining the necessary permit(s) and hiring off-duty police officers, Salgado hired two private-duty security officers. . . .
Because the County's decisions were quasi-legislative discretionary policy or planning decisions it is sovereignly immune from suit and thus, it was entitled to summary judgment as a matter of law. This conclusion is supported by prior decisions from the Florida Supreme Court, this Court, and our sister courts.
For example, in Delgado v. City of Miami Beach, 518 So.2d 968 (Fla. 3d DCA 1988), this Court affirmed the trial court's order granting the City of Miami Beach's motion for summary judgment after concluding that the City of Miami Beach was protected from liability under the doctrine of sovereign immunity as a matter of law. Delgado was injured when someone in the crowd ignited fireworks which struck and burned Delgado's leg while he was attending a concert and a fireworks display sponsored by the City of Miami Beach. Delgado claimed that the City of Miami Beach, which had sponsored the event, breached its duty by failing to prohibit the attendees from possessing and detonating their own fireworks. This Court, however, concluded that the City of Miami Beach's "actions fell within the planning-level, discretionary function of government, for which no liability attaches." Id. at 969. Specifically, this Court held that "[t]he manner in which a city, through its police officers, exercises discretionary authority to enforce compliance with the laws and protect the public safety, falls squarely within the city's power to govern. Accordingly, the city is protected under the doctrine of sovereign immunity." Id. (citing Trianon, Commercial Carrier, and other cases).
As in Delgado, the County's actions in the instant case - not assigning officers to patrol or be present at private parties or events held in its public parks, but to, instead, require those who rent its park facilities to obtain permits and hire off-duty officers under certain circumstances - was a discretionary planning and/or policy decision. It was a governmental decision made in the exercise of its discretionary authority regarding the manner in which compliance and enforcement of the law and the protection of the public would be effectuated. How the County notified those who rented its park facilities of their obligations and responsibilities was also a planning/policy discretionary governmental decision. Because parks such as Benito Juarez Park were "un-manned" parks with only part-time maintenance employees in attendance, the County, in the exercise of its discretion, put into place a policy requiring the County to notify each individual who purchased a Park membership or rented a Park facility by providing him/her with a copy of the Park's rules and regulations. The unrefuted evidence in this case is that these rules and regulations were sent to the Salgado's home along with his coupon book after he purchased his Park membership. Because these decisions fell squarely within the County's power to govern, they are protected as a matter of law under the doctrine of sovereign immunity.
The decisions of the County regarding where and how to deploy its available manpower (sworn police officers) is a discretionary or planning function. And, as the Florida Supreme Court stated in Trianon, "under the constitutional doctrine of separation of powers, the judicial branch must not interfere with the discretionary functions of the legislative or executive branches of government absent a violation of constitutional or statutory rights." Trianon, 468 So.2d at 918. "While sovereign immunity is a silent issue here, we ought not lose sight of the fact that inherent in the right to exercise police powers is the right to determine strategy and tactics for the deployment of those powers." Wong v. City of Miami, 237 So.2d 132, 134 (Fla. 1970); see also Commercial Carrier, 371 So.2d at 1020 (quoting Wong, 237 So.2d at 134):
The sovereign authorities ought to be left free to exercise their discretion and choose the tactics deemed appropriate without worry over possible allegations of negligence. Here officials thought it best to withdraw their officers. Who can say whether or not the damage sustained by petitioners would have been more widespread if the officers had stayed . . . .

Pozos, 2017 WL 621233, at *9-13 (some omissions and alterations in original).

         We agree with and adopt Chief Judge Rothenberg's analysis as our own. We only add to her discussion to address two points in the dissenting opinion: (1) its discussion of Sanchez's claim; and (2) its reliance on City of Belle Glade v. Woodson, 731 So.2d 797 (Fla. 4th DCA 1999).

         1. Sanchez's Claim.

         The dissenting opinion reads Sanchez's negligence claim to include violations of the park employees' operational duties to keep track of the number of party-goers, verify security measures, and shut down parties if they spiral out of control. The dissenting opinion says that Sanchez's claim does "not necessarily or simply involve policy decisions on the allocation of County-directed police officer, " but rather includes operational decisions to issue permits, close the park after dark, and use warning signs.

         Response to Motion for Summary Judgment.

         We read Sanchez's claim as he wrote and explained it. In his response to the county's summary judgment motion, Sanchez said he was "suing for negligent security." Sanchez argued that county procedures required "at least one off-duty police officer" at the party, and this set the standard of care for the county. Sanchez contended the summary judgment standard had been met "where there is expert evidence, the county admit[s] that there should have been at least one off-duty police officer to provide security at the park, and the circumstances leading-up-to Sanchez's injury are established by proof."

         Hearing on Summary Judgment Motion.

         At the hearing on the county's summary judgment motion, Sanchez described the ...


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