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SOUTHERN LEGAL COUNSEL, INC.
1229 N.W. 12th Avenue,
Gainesville, Florida 32601-4113
Tel: (352) 271-8890
Fax: (352) 271-8347
slc@southernlegal.org
http://www.southernlegal.org
Alejandro Vilarello
City Attorney's Office
City of Miami
444 S.W. 2nd Avenue, Suite 945
Miami, FL 33133
Fax: (305) 416-1801
Re: Thomas Merton Center
Dear Mr. Vilarello:
Our office is assisting the Thomas Merton Center, a non-profit
educational and political grassroots organization. This is in regard to
requests made by the City of Miami's Fire Marshall, Virgil Fernandez,
on November 12, 2003, concerning the warehouse
that the Center is currently leasing (2300 N. Miami Avenue) and
concerns about administrative and law enforcement preemptive action that
may be taken against the warehouse.
The Center, its volunteers and supporters, are organizing legal,
non-violent speech activities around the Free Trade Area of the Americas
(FTAA) meetings occurring in downtown Miami during the week of November
17 to 23, 2003. The Center intends to participate in several marches,
rallies and other First Amendment activities over the next several days.
The members and volunteers of the Center are planning their
participation at these events, including making signs, banners,
political artwork, and holding meetings and trainings about these
activities at the warehouse. The Center's ongoing and planned political
participation _expression constitutes protected speech and petitioning
activities under the First Amendment to the United States Constitution.
On November 12, 2003, Fire Marshal Fernandez arrived at the warehouse and asked to conduct an inspection because the Center was opening
a business. A representative of the Center informed Mr. Fernandez that
it is a non-profit, educational and artistic community-based organizing
project and not a commercial business. Mr. Fernandez also stated that
one of the exits needed to have the outside door gate secured to the
building, that both exit doors needed to remain open anytime there were
more than fifty people in the building, that a fire extinguisher was
needed and that a certificate of occupancy and an occupational permit
were necessary. Mr. Fernandez did not issue a written citation. Mr.
Fernandez was asked whether a follow-up inspection was necessary. He
stated that no such inspection was necessary and did not provide any
time frame for these corrective actions.
The Center immediately informed the landlord of the requests made by the
Fire Department and action is being taken to comply with the Fire
Department's requests. These corrections are being made even without
waiting for written confirmation of the Fire Marshal's comments from the
city.
Since Mr. Fernandez's inspection, the Center has received conflicting
information from other city officials concerning the type of necessary
permits. The Center will comply with any legal requirements; however,
based on conflicting information from city officials, it is impossible
to determine what requirements, if any, apply
to the lease of the warehouse. We request that your office clarify,
in writing, whether the Center is required to obtain any permits or
certificates.
The Center is concerned that the Fire Department and City of Miami
Police Department will take preemptive action to chill their speech
activities, including a raid and warrantless entry of the warehouse, in
the next few days, and seize or destroy their signs, banners and
political art, that they intend to use for peaceful expressive
activities over the next week. Over the past two weeks, law enforcement
has conducted surveillance of the Center and police detentions and
arrests near and around the Center. This conduct has only escalated.
For example, in the past two days, police cars have driven by the Center
up to 4 times per hour. In the Center's view, these acts of
intimidation are intended to have a chilling effect upon the
constitutional rights of the Center's volunteers and supporters.
All of the Fire Marshal's requested corrections are being addressed.
Based on the statements of Mr. Fernandez, the City does not need to
conduct a follow-up inspection concerning the issues identified on
November 12, 2003. Thus, there is no legitimate basis for any employee
of the City to enter these premises without a warrant, or to execute a
lawful warrant, at a time prohibited under Florida law. There has been,
and is, no imminent threat to life or property that would justify an
exception to the mandatory warrant notice and search restrictions under
Section 933.20, Fla. Stat. (2003), et seq. Further, there has been, and
is, no basis for a law enforcement search of the facility.
Under clearly established law, the unlawful and pretextual use of an
administrative inspection or law enforcement search would violate the
Center's Fourth Amendment rights and have a chilling effect on the
Center's speech activities in violation of the First Amendment. Should
the City take such preemptive action, we are prepared to proceed with
any legal action necessary to protect the Center's rights and pursue any
claims for damages that they may have as a result of such actions.
Your immediate response to this matter is requested. I am willing to
discuss any resolution of these issues. You can reach me by calling my
cell phone at: (352) 246-5690.
Sincerely,
Andrea Costello
cc:
Lisa Fithian, Thomas Merton Center
Amanda Frost, Public Citizen Litigation Group
Randall Marshall, ACLU of Florida |
