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Case 1:18-cv-24190-FAM Document 5 Entered on FLSD Docket 10/11/2018 Page 1 of 24

UNITED STATES DISTRICT COURT


SOUTHERN DISTRICT OF FLORIDA
Case No.: 1:18-cv-24190

WILLIAM O. FULLER and


MARTIN PINILLA, II

Plaintiffs, Case No. 1:18-cv-24190

v.

JOE CAROLLO and


JOHN DOES 1-10

Defendants.
___________________________________/

MOTION FOR PRELIMINARY INJUNCTION

AXS LAW GROUP, PLLC


2121 NW 2nd Avenue, Suite 201
Miami, FL 33127
Tel: 305.297.1878
Jeffrey W. Gutchess (FBN 702641)
jeff@axslawgroup.com
Brandon Rose (FBN 99984)
brandon@axslawgroup.com

Counsel for Plaintiffs


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TABLE OF CONTENTS

INTRODUCTION…………………………………………………………………………….......1
STATEMENT OF FACTS…………………………….………………………………………….1
1. The Campaign For Miami City Commissioner...………………………………………1
2. The Start of Carollo’s Retaliation Against Plaintiffs......................................................3
3. Plaintiffs’Holiday Party………………………………………………………………...4
4. Sanguich De Miami............................................................... .........................................5
5. Union Beer............................................................... ......................................................5
6. Carollo Starts Retaliation Against Ball & Chain’s Valet Operations.............................5
7. Carollo Orders City Employee To Accompany Him
Searching For Citations To Issue To Plaintiffs...............................................................6
8. Carollo Brings City Employees Seeking.........................................................................7
9. To Create Noise Complaints Against Ball & Chain........................................................8
10. Fuller Files An Ethics Complaint
Against Carollo………………………………………………………………………..8
11. Carollo Targets Plaintiffs’ Calle Ocho Marketplace.......................................................9
12. Carollo Returns To Retaliating Against Ball and Chain...............................................10
13. Carollo Again Is Discovered Lurking Behind Ball And Chain.....................................11
14. Carollo’s Retaliation Against Viernes Culturales.........................................................11
15. Carollo’s Retaliatory Defamation Against Plaintiffs....................................................12
MEMORANDUM OF LAW………………………………………………...………..…………12
(1) Plaintiffs Are Likely to Succeed on the Merits..................................................................13
a. Plaintiffs’ Speech and Acts Were Constitutionally Protected...............................14
b. Carollo’s Conduct Would Deter a Person of Ordinary Firmness………………..15
c. There Is A Causal Connection Between the
Retaliatory Conduct and the Protected Speech......................................................17
(2) Plaintiffs Have Established Irreparable Injury...................................................................18
(3) The Balance of Equities Favors A Preliminary Injunction................................................19
(4) A Preliminary Injunction Will Advance The Public Interest.............................................19
(5) The Preliminary Injunction Should Issue Without A Bond...............................................19
CONCLUSION…………………………………………………………………………………..20

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INTRODUCTION
Plaintiffs, William “Bill” O. Fuller (“Fuller”), and Martin Pinilla, II (“Pinilla”), pursuant
to Federal Rule of Civil Procedure 65(a), hereby submit this Motion for Preliminary Injunction
(the “Motion”) to enjoin Defendants Joe Carollo (“Carollo”) and John Does 1-10 from adopting
any further retaliatory actions against the Plaintiffs’ First Amendment right to free speech, to
freedom of assembly, and to the freedom to petition the government for grievances.
STATEMENT OF FACTS
1. The Campaign For Miami City Commissioner
Plaintiffs are local entrepreneurs who have dedicated their professional careers to
revitalizing the Little Havana Calle Ocho District. They have been called “a galvanizing force
behind the area’s cultural resurgence.” Plaintiffs have created hundreds of jobs contributing
hundreds of thousands of tax dollars to the City of Miami. Plaintiffs have always maintained
strong relationships with City Commissioners, including Carollo’s two predecessors, his brother
Frank Carollo and Joe Sanchez, both of whom appointed Fuller to serve on various city boards or
trusts, including the Dade Heritage Trust, the Stars of Calle Ocho and Viernes Culturales. See
Verified Complaint at ¶¶ 1-27.
In the summer of 2017, Carollo announced his campaign for Commissioner for the City of
Miami for District 3, which includes Little Havana. During the campaign, Carollo sought out
Fuller’s support and the two met to discuss ways they could work together to improve Little
Havana. Steve Miro, Carollo’s top campaign advisor and later Chief of Staff, noted that at that
time, Carollo was “not targeting him, Joe was trying to ally himself with him.”1 Id. at ¶¶ 28-31.
In the general election, held on November 7, 2017, Carollo received 1,818 votes, and
Alfonso Leon received 1,221 votes. Because neither received a majority of votes, a run-off
election was scheduled for November 21, 2017 with the first day of early voting held on November
18, 2017. There were only two locations where ballots could be cast early for the run-off. The
entrance to one of them was directly across from one of Plaintiffs’ properties. Id. at ¶¶ 33-37.

1
On March 12, 2018, Fuller filed an Ethics Complaint against Carollo with the Miami-Dade Dade
Commission on Ethics and Public Trust (the “Ethics Commission”). Following the conclusion of
the Ethics’ Commission’s investigation, the Commission released its Investigative Report (the
“Ethics Report”) which includes the testimony of over 14 individuals regarding many of the
allegations contained herein. See DE 1-1.
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On Saturday, November 18, 2017, Plaintiffs hosted a rally in support of Carollo’s


opponent, Alfie Leon. The rally was highly visible and was within the line of sight of every single
voter. Anyone who walked by would stop at the rally. There was no comparable rally for Carollo
anywhere in sight. Carollo was infuriated and worked his contacts at the City in order to get Code
Enforcement Officers and the police to shut down the rally. Undeterred, on the second day of
early voting, Sunday, November 19, 2017, another rally was held on Plaintiffs’ lot. Like the first,
it was also highly visible to potential voters. And like the first, there was no comparable rally for
Carollo. Unlike the first rally, however, Carollo’s advisor, Steve Miro, spotted Plaintiff Pinilla
on-site at the rally both in his car and walking around. Carollo was furious that a rally for his
opponent was occurring on a lot owned by Fuller and Pinilla because the rallies were a major threat
to Carollo’s election. Id. at ¶¶ 39-53.
Two days later, Carollo barely won the election by a mere 352 votes. Id. at ¶ 54. His first
order of business was orchestrating and implementing a campaign of harassment against Plaintiffs,
seeking to shut down all of their businesses in an effort to extract retribution for their opposition
in the election. As demonstrated below, Carollo carried on this campaign of retribution by
criminally bypassing the City Manager and making direct requests and even orders to numerous
City Code Enforcement employees, police, firemen and others in order to marshal City resources
for his own retaliatory campaign.2

2
Section 4(d) of the City of Miami Charter provides that

[T]he mayor, the city commission, any committees and members thereof shall
deal with the administrative service solely through the city manager, and
neither the mayor nor the city commission, nor any committees nor members
thereof shall give orders to any of the subordinates of the city manager, city
attorney, city clerk and independent auditor general, either publicly or
privately. Any such dictation, prevention, orders or other interference or violation
of this section on the part of the mayor or a member of the city commission or
committees shall be deemed to be violation of the Charter, and upon conviction
before a court of competent jurisdiction any individual so convicted shall be
subject to a fine not exceeding five hundred dollars ($500.00) or
imprisonment for a term of not exceeding sixty days or both, and in the
discretion of the court shall forfeit his or her office. Any willful violation of the
provisions to this section by the mayor or any city commissioner shall be grounds
for his or her removal from office by an action brought in the Circuit Court
by the state attorney of this county.

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2. The Start of Carollo’s Retaliation Against Plaintiffs


Carollo’s former employee, Steve Miro, with personal knowledge and involvement in these
first four months, has testified under oath that when Carollo “took office, you know, he went after
Mr. Fuller, obviously.” Miro further stated that to go after Fuller, Carollo created “a
spreadsheet…of all the businesses [Fuller] has in the district.”3 When asked why Carollo was
targeting the Plaintiff, Miro answered: “obviously, [Fuller] went against him in the commissioners
by donations to -- giving him building and what have you.” That means that Fuller went against
Carollo in the run-off election by supporting his opponent, Alfie Leon, and allowing Leon to use
Fuller’s property to conduct a rally across from the early voting center. Id. at ¶¶ 61-68.
Carollo gave this list of all of Plaintiffs’ properties to Orlando Diez (“Diez”), who was then
the Director of Code Compliance for the City of Miami, and Diez understood Carollo was asking
him to selectively target Fuller’s properties. Carollo used the spreadsheet to escort “the mayor,
the city manager, the deputy city manager, code enforcement director” and “showed them all the
properties” Fuller owned. As Miro explained: “[w]e walked up and down 8th Street all the way
to 6th Avenue; believe it or not. We turned back around you know, and walked back the other way
showing the business that have violations and obviously, they were [Plaintiffs’] businesses.” Id.
3. Plaintiffs’ Holiday Party
On December 15, 2017, Carollo, as a Commissioner, instructed City employee Mary Lugo,
in violation of the City Charter, to send Code Enforcement to disrupt the holiday party Plaintiffs
had hosted for their employees, tenants, tenants’ employees, and their children for five years. In
fact, City commissioners had previously attended the Christmas Parties. Carollo through Lugo
exerted immense pressure on City employees to find an excuse to shut down Plaintiffs’ holiday
party. Carollo claimed the party lacked a Special Events Permit, which is required only for parties
of 100 people or more. A code enforcement officer showed up but, finding only 50 people, had
no reason to shut down the party. When she left, she informed her boss there were no violations
but nevertheless was instructed to return and stay on site intimidating the guests. Id. at ¶¶ 69-82.
Code Enforcement’s refusal to shut down the party infuriated Carollo, who insisted that
the Director of Code Compliance, Orlando Diez himself appear at the party. When Diez appeared
after midnight, he was put on the phone with Fuller. Diez told Fuller that his holiday party was a

3
On August 3, 2018, Plaintiffs took the voluntary sworn testimony of Miro, also in relation to the
allegations contained herein (the “Miro Statement”). See DE 1-2.

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political target, there were many people involved in the effort, and suggested they meet in person
so he could explain “all the craziness” that was going on. When Fuller met Diez in person, Diez
confirmed that Carollo and Lugo were behind the complaints. Diez stated that Assistant City
Manager Alberto Parjus (“Parjus”) told him the complaints were “coming from a Commissioner’s
office,” that “they” – meaning Carollo’s people (i.e., Lugo) – were “driving me crazy.” Diez also
stated he had been instructed to conceal Carollo’s role and instead claim that all complaints to
Code Enforcement were from private citizens. Id. at ¶¶ 86-94.
4. Sanguich De Miami
Carollo’s retaliation was not limited to just Plaintiffs but rather was targeted at any tenants
of Plaintiffs as well. Carollo’s first attack was on Plaintiffs’ plans to activate underutilized retail
space using remodeled shipping containers, an architectural concept that had become popular
around the world, and also approved by the City of Miami and used successfully in the Wynwood
Yards and in The Wharf on the Miami River. Former District 3 Commissioner Frank Carollo (Joe
Carollo’s brother) was a “huge proponent” of the Plaintiffs’ efforts and had even suggested that
the proprietors of Sanguich de Miami, a Cuban Sandwich shop, partner with Plaintiffs. Many City
officials including former Mayor Tomas Regalado and the Chief of Police attended their ribbon-
cutting ceremony on Oct. 27, 2017. Id. at ¶¶ 95-99.
Despite this wide support among City Officials, Carollo targeted both the use of the
refurbished shipping containers and the Sanguich business as long as they remained tenants of
Plaintiffs. First, on November 26, 2017, just one week after Carollo discovered Plaintiffs
supporting his competitor Leon, and only 5 days after he won the run-off election against Leon,
Carollo orchestrated a raid of Sanguich in its tiny shipping container by 25-30 City enforcement
personnel including police, fire, building and code enforcement officers. Just minutes before the
raid, Fuller was contacted by City Manager Daniel Alfonso, who advised him that code
enforcement had been summoned to the property. When Fuller asked if this was a retaliation from
the incoming commissioner Carollo, the City Manager responded simply by saying “si.” Alfonso
also told the Sanguich owners, Rosa Romero (“Romero”) and Daniel Figueredo (“Figueredo”),
that the raid was performed at the direction of Carollo and that Alfonso had no power to stop it.
Id. at ¶¶ 102-104.
Alfonso advised them to meet with Carollo to learn the reason for the raid. Romero and
Figueredo met with Carollo on December 6, 2017. Carollo expressed that he felt the location of

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their business (on Plaintiffs’ property) was problematic and that they relocate to City-owned
property. Specifically, Carollo stated, “I love it [the business],” just “maybe not where you are, I
think there’s a little park that’s near there and maybe the City can accommodate you.” Asked the
reason for the harassment, Carollo told Figueredo, “my problem is not as much with you as
it is with your landlord.” Id. at ¶¶ 104-111.
Carollo succeed in shutting down Sanguich temporarily and then, on January 6, 2018, the
same day it reopened, Code Enforcement shut them down again, and Code Officer Yacmany
Salvatierra (“Salvatierra”) told them, “I’m sorry, this came from above, just know people are
watching.” In addition, Assistant City Manager Parjus also confirmed that the calls to the Building
Department and the City were coming from Carollo personally or from persons acting at Carollo’s
direction, stating “every time the guy [Figueredo] would open the door to clean up the place or do
something we’d get a call . . . ‘hey they’re open up again,’ from the Commissioner’s Office or
somebody else.” Id.
5. Union Beer
Plaintiffs are also the landlords and partners of the Union Beer Store, owned by husband
and wife team David and Cecilia Rodriguez. On February 10, 2018, Union Beer held its one year
anniversary party in the parking lot behind their business. This time Carollo himself appeared at
the property with several police officers with flashing lights and approximately 15-20 Code
Enforcement officers. Carollo confronted the Rodriguez’s and told them “You need a temporary
events permit ... but even if you had applied for one, I would have denied it.” (Of course, the City
Commissioner does not approve special events permits, and so Carollo’s statement is simply more
evidence of his intimidation of City Officials in violation of the City Charter). Union Beer had
never before been cited for any significant code violations nor had any of its operations shut down.
Carollo was heard bragging to patrons of the El Pub bar that that he would do everything possible
to shut down Union Beer. Id. at ¶¶ 116-121.
6. Carollo Starts Retaliation Against Ball & Chain’s Valet Operations
On February 18, 2018 at approximately 12:30 A.M., Carollo, Lugo, Miro and Miro’s wife
entered a parking lot attached to St. Peter & Paul Orthodox Christian Church, which had been
leased by S.H. Valet, the valet operator for Ball & Chain, for parking cars for many years without
any complaints from the City. Lugo and Miro’s wife began photographing the parked cars. When
approached by the valet employee, Lugo claimed it was a “private” matter and she had a meeting

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with the priest (at 12:30 AM). The valet attendant noticed Miro’s wife taking photos and asked her
to stop taking pictures. At that point, Carollo lowered his car window, flashed his City of Miami
identification telling the valet attendant that he was performing an “official investigation” of the
valet operation and lot and that he was doing so in his official capacity as a City of Miami
Commissioner. A few minutes after the discussion, the operator of S.H. Valet, Alain Garcia
(“Garcia”), arrived at the lot and confronted Carollo. Garcia explained that the valet operation at
the lot had been approved by the Miami Parking Authority and that S.H. Valet had a valid lease
with the Church to utilize the lot at night. Garcia then once again questioned what Carollo was
doing there and in response Carollo told Garcia, “I am the law.” Miro corroborated this fact
during his testimony to the Ethics Commission. Id. at ¶¶ 122-129.
Carollo further went on to tell Garcia that while he may be a hard worker just doing his
job, he was “working for a millionaire” (meaning Fuller) which was not acceptable to the
Commissioner. Id. at ¶ 130.
7. Carollo Orders City Employee To Accompany Him Searching For
Citations To Issue To Plaintiffs
On Saturday, March 3, 2018, Carollo called a Code Enforcement supervisor named
Michelle Watt and asked her to instruct a Code Enforcement officer to meet him in Little Havana
because he had some questions and needed assistance. Watt instructed Code Enforcement Officer
Dennis Uriarte (“Uriarte”) to meet Carollo at 1600 SW 8th Street. Uriarte had been assigned to
Coconut Grove, not Little Havana. Uriarte found the request “very unusual” because
Commissioners should “know better” than to call Code Enforcement directly, and he had never
before received such a call, saying: “in my 2 ½ years, that was the first time, it’s been the only
time.” Id. at ¶¶ 145-147.
When Uriarte arrived, Carollo said he believed the construction at the property lacked
permits. Uriarte verified online with the City’s iBuild website and determined the sight was “legit”
and had permits. Uriarte obtained a copy of the construction site’s plans and found they were
proceeding legally. Uriarte thought that would be the extent of his interaction with Carollo, but
Carollo then asked if he could ride with him in the City Code Compliance vehicle, in order to point
out five additional sites, located elsewhere on SW 8th Street, three of which belonged to Fuller and
Pinilla on which he wanted to search for code violations. Uriarte stated “I don’t think it is part of
our job . . . it never happens . . . this was a very unusual task given to me.” He continued by stating,
“probably the supervisor didn’t even know that he wanted to ride with me.” Uriarte added that “I

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had to say yes” and didn’t want to get in “trouble for saying no to a Commissioner.” Id. at ¶¶ 147-
149.
In fact, because Uriarte and his supervisor Sierra were uncomfortable with the request for
the ride-along, they called their former supervisor Diez who suggested that they put something in
writing documenting the request. Sierra then sent an email documenting Carollo’s comments from
the ride-along suggesting areas to investigate for code violations. Carollo subsequently called
Uriarte to see if Uriarte had issued citations to Plaintiffs. At the time of the ride-along, James
Bernat (“Bernat”) was on his first week at the job as the new Acting Code Enforcement Director.
Bernat stated that the ride-along was done “without his knowledge or authorization,” and that
Commissioners should not be going in cars or doing ride-alongs with inspectors, especially without
the approval of their supervisor. Bernat has since directed his officers that they cannot participate
in ride-alongs with Commissioners. Id. at ¶¶ 150-153.
8. Carollo Brings City Employees Seeking To Create Noise Complaints
Against Ball & Chain
On March 14, 2018, Carollo arranged for numerous city employees, including the Director
of Code Compliance, James Bernat, a police officer, two Code Enforcement personnel, Sean Moy,
President of the AFSCME Union, and Lugo and Miro, to walk around Ball & Chain and its
neighboring areas looking for more citations against Plaintiffs. This again was done by Carollo as
a City Commissioner with City employees outside the knowledge and purview of the City Manager
in direct violation of the City Charter. Prior to the walk, Carollo and Lugo had visited residents in
a building located to the rear of Ball & Chain on 7th Street, soliciting the residents to make noise
complaints and providing them with Carollo’s cell phone number for complaints of any kind.
Carollo explained to the tenants that he would then call Code Enforcement himself to address any
issue (which, of course, was in violation of the Charter). Lugo brought Bernat to meet one of the
residents who lived behind Ball & Chain, whom Carollo and Lugo had already prepped, and that
the woman complained of loud music after 9:00PM at the club. Lugo had previously contacted
this woman and asked her to be there to complain about the noise. Id. at ¶¶ 156-160.
Bernat, then the Director of Code Compliance, has admitted that prior to Carollo and his
team’s visits, there had been very few noise complaints about Ball & Chain but that after Carollo’s
team had reached out to the neighbors, the complaints became an onslaught (orchestrated by
Carollo). Bernat further stated that he had received calls directly from Carollo’s office about Ball
& Chain claiming noise violations and that the Ball & Chain valet was illegal and should not be

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allowed to operate. To assure that it could defend any false reports of noise violations, Fuller and
his partners in Ball & Chain spent significant resources to implement high tech noise cancellation
equipment and a master switch to control the volume of the music automatically depending on the
time of the night. This master switch could not be changed by staff. Id. at ¶¶ 161-162.
9. Fuller Files An Ethics Complaint Against Carollo
On March 12, 2018, Fuller filed a complaint against Carollo with the Miami-Dade
Commission on Ethics and Public Trust (the “Ethics Commission”). Upon learning of the Ethics
Complaint, Carollo asked Miro how he planned to respond to questions from investigators. Miro
responded that he would answer truthfully. Upset by this response, Carollo instructed Miro to tell
the investigators that all actions taken against properties owned by Plaintiffs were the result of
“anonymous complaints.” Miro stated that Carollo tried to “coerce me into saying something that
is totally not true.” Miro further stated: “Joe wanted me to say there were anonymous complaints
and there were none. I never received any anonymous complaints.” Shortly thereafter Carollo
terminated Miro’s employment. Id. at ¶¶ 163-166.
After Fuller filed the Ethics Complaint, and for the next five months while the investigation
was pending, Carollo temporarily ceased his harassment. There was a noticeable difference,
becoming eerily quiet. It went from a constant barrage of harassment to nothing. In fact, even the
noise complaints against Ball & Chain ceased. On August 6, 2018, Fuller requested permission to
withdraw the ethics complaint, and it was withdrawn as of August 13, 2018. Carollo interpreted
the withdrawal of the Ethics Complaint as a sign of weakness and defeat and as a green light to
resume and even ramp up his attacks on the Plaintiffs, which is jokingly now called in City circles
as “Round 2.” Id. at ¶¶ 167-172.
10. Carollo Targets Plaintiffs’ Calle Ocho Marketplace
On August 20, 2018, just seven days after Fuller withdrew his Ethics Complaint, Carollo
resumed his retaliation against Plaintiffs. First, Carollo orchestrated a notice of code violation
against Plaintiffs’ Calle Ocho Marketplace, in which Plaintiffs had invested over $100,000 to build
kiosks to house vendors for a farmers market. The alleged violation was of 3.63(g) of Miami 21,
which relates to “Off-Street Parking Facilities” and states: “Inoperable vehicles and other
inoperable Recreational Watercraft or equipment shall be stored only in storage facilities or other
approved places where they are completely concealed from public view.” The Notice contended
that the kiosks somehow constituted equipment and the marketplace somehow constituted a

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parking facility and that Plaintiffs therefore either had to fasten down the kiosks or remove them
no later than August 22, 2018, a mere two days later. Id. at ¶¶ 176-177.
Given that the kiosks were actual building structures and not equipment, and that Plaintiffs
had a lawful Farmer’s Market TUP and Building Permit to have the kiosks on the property, the
Plaintiffs reached out to Assistant City Attorney to resolve the issue. On August 31, 2018, while
the parties were still discussing how to resolve the matter, the City filed an Emergency Motion for
Injunctive Relief (“Motion”) asking the Court to either force Plaintiffs to remove the kiosks or
grant the City the authority to remove and destroy every kiosk from the property. On September
6, 2018, Judge Miguel De La O denied the Motion. Id. at ¶¶ 178-181.
While the City’s Motion was pending, Plaintiffs received a letter from the City indicating
that it was revoking the Farmer’s Market TUP on the property and, because the TUP formed the
basis for the building permit that allowed for the kiosks to be on the property, the City also revoked
the building permit on September 11, 2018. Having lost in court, but having managed to revoke
their permits, the City then dragged Plaintiffs in front of the Code Enforcement Board. Carollo
attended the meeting and delivered a defamatory and false speech, lasting more than 10 minutes,
attacking the Plaintiffs. Carollo argued that while the Plaintiffs had a Farmer’s Market permits,
he knew they were not going to sell vegetables but rather would hock goods as they would in a
fourth or fifth world market. This resulted in the Board’s decision to give Plaintiffs less than 48
hours to remove the kiosks or else start to incur fines of $250 per day. Id. at ¶¶ 182-185.
11. Carollo Returns To Retaliating Against Ball & Chain
On Saturday morning, September 15, 2018, at 12:30 am, three City of Miami Code
Enforcement Officers and a police officer showed up at Ball & Chain to complain about alleged
illegal parking on a lot owned by Plaintiff that was adjacent to the Ball & Chain. According to
Code Enforcement, they were there as a result of an “anonymous” complaint about illegal parking.
There was nothing “anonymous” about the complaint as it had come directly from Carollo, again
in violation of the City Charter. Id. at ¶ 188.
The lot, which is zoned commercial and therefore may be used for parking, is utilized by
the employees of Ball & Chain to park their cars while they are at work. The Code Enforcement
officers issued Plaintiff a citation for illegal parking and failure to have a Certificate of Use on the
lot and then, at the direction of the police officer, forced all of the employees to stop working and
immediately move their cars. The problem with that is that Code Enforcement is only empowered

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to issue citations. Citations can then be contested. Code Enforcement is not empowered to take
affirmative action to remove perceived code violations prior to a hearing. This process took
approximately an hour as 25 employees – management, waiters, bartenders, busboys, the disc
jockey – all took turns leaving work and moving cars, resulting in a significant disruption of work
at Ball & Chain. The Code Enforcement officers and police remained on the premises essentially
intimidating the staff until every car had been moved. Id. at ¶¶ 189-191.
When Fuller called a senior Code Enforcement Officer (the “Officer”) to ask why the
citations were issued when the parking was legal, he was advised that there must have been a
mistake because the lot was zoned commercial and could be used for parking. When the Officer
checked, however, he advised that there had indeed been a citation issue based upon an
“anonymous” complaint. Fuller immediately confronted him with the fact that it was not
“anonymous,” but rather a text message sent by Carollo on September 15, 2018 that said “Mr.
manager 1530 sw 7 street still parking illegally and music blaring in violation of city code.” Noting
the “music blaring” reference in Carollo’s text message, Fuller also advised the Officer that neither
Code Enforcement nor the Police mentioned any noise complaints at Ball & Chain, no decibel
measurements had been taken, and no citation had been issued for excessive noise while they were
there. Approximately an hour after the meeting at 3pm on Tuesday, September 18th, a violation
was posted outside Ball and Chain for excessive noise with a date of September 15, 2018. This
was obviously Carollo manufacturing a false noise violation against Plaintiffs’ businesses three
days after Code Enforcement had been there and refused to issue such a citation. This false noise
complaint is of great significance since, with three such (false) complaints, Carollo may attempt
to force Ball and Chain to shut down permanently. Id. at ¶¶ 192-203.
12. Carollo Again Is Discovered Lurking Behind Ball & Chain
On October 2, 2018 at 9 p.m., three men were discovered lurking in the lot behind Ball &
Chain. One man was Carollo. The second man was Frank Pichel, a current member of the Code
Enforcement Board, who had only recently voted to shut down Plaintiffs’ Calle Ocho Market and
destroy Plaintiffs’ kiosks. Carollo was again asking the neighboring resident to complaint about
the music. The General Manager subsequently spoke to the people living in the apartments where
Carollo had been knocking on doors. The neighbors stated that they had no issues with the music
coming from Ball & Chain and that most times they didn’t notice it. They confirmed that no
complaints had been made that night and they did not know why the commissioner was knocking

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on their doors at 9pm on a Tuesday night. These neighbors statements were recorded on video.
While the video clearly shows Carollo at the location, the third man, Pichel, who sits on the Code
Enforcement Board and, if he does not recuse himself, would be ruling on any noise complaints,
refused to be on video and hid behind a tree. Id. at ¶¶ 204-210.
13. Carollo’s Retaliation Against Viernes Culturales
Fuller is President of the neighborhood organization Viernes Culturales, a nonprofit
organization which coordinates the popular Viernes Culturales/Cultural Fridays art, music and
culture festival held on the last Friday of every month on Calle Ocho. Viernes Culturales is
currently in its 18th year. One of the main areas that the festival utilizes to house its vendors is
Domino Plaza. In August 2018, Carollo ordered that Domino Plaza be shut down and physically
barricaded. No public reason was ever given. However, when the security guard at Domino Plaza
was asked why it was shut, she said it was at the order of the commissioner. Asked how she knew
Carollo had closed it, she said he had come to the site on Thursday to make sure it was shut down.
Carollo’s closing of Domino Plaza is a direct attempt to target and destroy Viernes Culturales
simply because Fuller is the President. In fact, another City Commissioner has stated explicitly
that Carollo is targeting the festival to “fuck with Fuller.” During his sworn statement, Miro
explained that Carollo had hired his attorney to form a competing organization to Viernes
Culturales that he hoped would replace it. When Fuller asked why Carollo would want to take
over Viernes Culturales, Miro replied, “Just because it’s yours.” Id. at ¶¶ 211-219.
14. Carollo’s Retaliatory Defamation Against Plaintiffs
Carollo has also gone on popular radio shows and defamed Plaintiffs and their businesses
and their tenants. On the Raul Martinez show, Carollo alleged that Plaintiffs were connected to
the corrupt socialist dictatorships in Cuba and Venezuela. claiming that Plaintiffs were “[b]eing
supported by a small group of Venezuelans that have companies in Panama or the father of one of
them is a Venezuelan ambassador to Cuba.” Carollo then alleged that the corrupt Venezuelans
were “leaving El Padrino [referring to Plaintiff Bill Fuller] to operate like a Godfather buying
places full of code violations, buildings and nothing happens.” Moreover, during the Radio
Actualidad show, Carollo falsely claimed that Plaintiff Fuller (a) “Operates all of his businesses
without permission,” (b) was “Robbing money from the City of Miami by not paying valet fees,”
and (c) that “Ball & Chain has caused prostitution on Calle 8.” Each of Carollo’s statements listed
above were knowingly false, malicious, published widely to the community, and intended to harm

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Plaintiffs and their businesses as retaliation for Plaintiffs hosting a rally for Alfie Leon across and
for Fuller filing the Ethics Complaint against Carollo. Id. at ¶¶ 220-229.
MEMORANDUM OF LAW
In preliminary injunctive relief, courts consider four factors: “(1) whether there is a
substantial likelihood that the party applying for preliminary relief will succeed later on the merits;
(2) whether the applicant will suffer an irreparable injury absent preliminary relief; (3) whether
the harm that the applicant will likely suffer outweighs any harm that its opponent will suffer as a
result of an injunction; and (4) whether preliminary relief would disserve the public interest. When
the state is a party, the third and fourth considerations are largely the same.” Scott v. Roberts, 612
F.3d 1279, 1290 (11th Cir. 2010) (internal citations omitted) (enjoining operation of an excess
spending subsidy of the Florida Election Campaign Financing Act, which violated plaintiff’s First
Amendment right to free speech).
(1) Plaintiffs Are Likely to Succeed on the Merits
The First Amendment to the United States Constitution provides:
Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of speech, or
of the press; or the right of the people peaceably to assemble, and to petition
the Government for a redress of grievances.
The First Amendment protects not only the affirmative rights to free speech, association,
and petitioning the Government for grievances, but also the right to be free from retaliation
perpetrated by the government upon the exercise of those rights. See Smith v. Gilchrist, 749 F.3d
302, 308 (4th Cir. 2014); American Civil Liberties Union of Maryland, Inc. v. Wicomico County,
999 F.2d 780, 785 (4th Cir. 1993) (“[r]etaliation, though it is not expressly referred to in the
Constitution, is nonetheless actionable because retaliatory actions may tend to chill individuals’
exercise of constitutional rights.”). By engaging in retaliation, public officials may place informal
restraints on an individual’s First Amendment rights, “allow[ing] the government to produce a
result which [it] could not command directly. Such interference with constitutional rights is
impermissible.” Perry v. Sindermann, 408 U.S. 593, 597 (1972).
Section 1983 provides a private cause of action with respect to the violation of federal
constitutional rights. The Act provides, in pertinent part, as follows:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of the United States or other

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person within the jurisdiction thereof to the deprivation of any rights,


privileges, or immunities secured by the Constitution and laws, shall be
liable to the party injured in an action at law, suit in equity, or other proper
proceeding for redress ***.”

42 U.S.C. § 1983 (2012). The aim of section 1983 “is to deter state actors from using the badge
of their authority to deprive individuals of their federally guaranteed rights and to provide relief to
victims if such deterrence fails.” Wyatt v. Cole, 504 U.S. 158, 161 (1992).
To prevail under Section 1983, a plaintiff must prove (1) the defendant was acting under
color of state law, and (2) the defendant’s actions deprived plaintiff of a constitutional right. To
demonstrate that retaliation deprived a plaintiff of a constitutional right, the plaintiff must establish
that (1) his speech or act was constitutionally protected; (2) the retaliatory conduct “would likely
deter a person of ordinary firmness” from engaging in the protected speech; and (3) there is a
causal connection between the retaliatory conduct and the protected speech. Bennett v. Hendrix,
423 F.3d 1247, 1252 (11th Cir. 2005) (holding that a plaintiff need not show that his speech was
actually deterred, but only that “the defendant’s allegedly retaliatory conduct would likely deter ‘a
person of ordinary firmness’ from the exercise of First Amendment rights”). The Eleventh Circuit
has reaffirmed its strong support for the First Amendment and against retaliation based thereon in
in a case brought by Defendant Carollo himself, Carollo v. Boria, 833 F. 3d 1322 (11th Cir. 2016),
as well as in Bailey v. Wheeler, 843 F.3d 473, 480 (11th Cir. 2016).
a. Plaintiffs’ Speech and Acts Were Constitutionally Protected
Plaintiffs’ protected speech concerned their support to Carollo’s political opponent, during
the November 2017, run-off elections and their filing of an Ethics Complaint against Carollo. As
the Supreme Court has held, “the First Amendment has its fullest and most urgent application to
speech uttered during a campaign for political office.” Eu v. San Francisco County Democratic
Cent. Comm., 489 U.S. 214, 223 (1989). The First Amendment “prohibits government retaliation
against a person for exercising his rights to free speech and association, including supporting the
political party and candidates of his choice.” Rodriguez v. City of Doral, 863 F.3d 1343, 1345
(11th Cir. 2017). “The speech component of the First Amendment is far-reaching and includes
various methods of communication, including a political speech or rally.” Pritchard v. Carlton,
821 F. Supp. 671, 674 (S.D. Fla. 1993) (emphasis added). In addition, Plaintiffs’ filing an Ethics
Complaint also is protected by the First Amendment. Thomas v. Ragland, 324 F. Supp. 2d 950,

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971 (W.D. Wis. 2004) (holding the filing of the “plaintiff's ethics complaint was protected conduct
under both the First Amendment and Title VII.”).
b. Carollo’s Conduct Would Deter a Person of Ordinary Firmness
Since Plaintiffs’ speech and acts were constitutionally protected, the next step is that
“private citizens must establish that the retaliatory acts would deter a person of ordinary firmness
from exercising his or her First Amendment rights.” Bennett, 423 F.3d at 1252. This test does not
require Plaintiff to prove actual injury because the “claim depends not on the denial of a
constitutional right, but on the harassment they received for exercising their rights.” Id. at 1253.
Thus, the Plaintiffs’ next step is to prove that harassment occurred.4
In reaching its holding, the Eleventh Circuit relied on Garcia v. City of Trenton, 348 F.3d
726 (8th Cir. 2008), a case on all fours with the preset case. There, the plaintiff regularly parked
her car in front of gift shop in excess of the two-hour time limit, and she never received a ticket
because the police would not to enforce the time limit unless another resident complained. After
she exercised her speech rights – complaining about bikers on the sidewalks not receiving citations
– she promptly received four parking tickets in the next two months, costing a total of $35.00.
Her neighbor on the street received only one ticket. She fully admitted her car had been parked
illegally in excess of the two-hour time limit, but simply argued that the imposition of the tickets
was selectively applied to her because the mayor was angry that she complained about the
bicyclists. The case went to a jury and the plaintiff won. The trial judge reversed the jury’s verdict
and entered summary judgment for the mayor. On appeal, the Eighth Circuit reversed and
reinstated the jury’s verdict, holding that:
Defendant, in his capacity as Mayor, engaged the punitive machinery of
government in order to punish Ms. Garcia for her speaking out. Charges made by a
parking ticket, to be sure, are typically only petty offenses, not even misdemeanors,
but they have concrete consequences. We hold that the evidence in this case was
sufficient to go to the jury.

4
Thus, “[a]ll that is necessary is a showing that a penalty for exercising one’s rights exists.” Chase
v. City of Gainesville, 2006 WL 2620260, at *2 (N.D. Fla. Sept. 11, 2006) (finding that “the
‘source’ of the chill is the direct punishment of citizens such as Plaintiffs, through fines and arrests,
for engaging in charitable solicitation”); see also Cate v. Oldham, 702 F.2d 1176, 1189 (11th Cir.
1983) (“the source of [the] chill . . . provides the critical irreparable injury to those citizens,
regardless of whether actual chill is proved”) (emphasis original).

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Id. Of course, it is black letter law that even “[o]therwise lawful government action may
nonetheless be unlawful if motivated by retaliation or having engaged in activity protected under
the First Amendment.” O'Brien v. Welty, 818 F.3d 920, 932 (9th Cir. 2016).
Here, Plaintiffs have presented a mountain of evidence of Carollo’s prolonged and
multifaceted retaliation, which has been in blatant violation of the City of Miami Charter’s
prohibition on Commissioners providing direct orders to City employees to wrongfully use City
resources for their own political means. He has wrongfully employed City resources, including
the Police, the Fire Department, Code Enforcement, and the Special Event Department, in his
attacks against Plaintiffs to (a) shut down the Christmas Party Plaintiffs hold for their own
employees, their tenants and their tenant’s employees, and their families, including young children
each year (a party previously attended by City Commissioners and employees); (b) prevent
Plaintiffs’ use of the same shipping containers authorized by the City in the Wynwood Yard and
the Wharf on the Miami River to house commercial business, thereby nearly destroying a family
business operating a wildly popular restaurant in that spot (Sanguich); (c) shut down Plaintiffs’
tenant Union Beer by sending multiple police and code enforcement personnel to raid their
anniversary party; (d) permanently shut down construction of the kiosk market Plaintiffs had
invested in and already obtained City approval for; (e) disrupt and shut down the wildly popular
Viernes Culturales, merely because Plaintiff Fuller is the Chairman of the Board of that nonprofit
organization; and (f) trespass on Plaintiffs’ properties and conducting illegal searches and
government surveillances. Carollo has also made false “anonymous” noise complaints against
Plaintiffs’ business Ball & Chain; solicited the residents of neighboring buildings to make those
same false noise complaints; repeatedly alleged code violations by the company that operates the
valet for Ball & Chain; and even defamed and disparaged Plaintiffs on the radio and calling
Plaintiff Fuller “El Padrino,” and falsely stating that Fuller “operate[s] like a Godfather” backed
by corrupt Venezuelan criminals, thereby destroying the Plaintiffs’ good name.
(2) There Is A Causal Connection Between the Retaliatory Conduct and
the Protected Speech
“The causal-connection inquiry asks whether the defendants were subjectively motivated
to retaliate because the plaintiffs engaged in protected speech.” O’Bryant, 637 F.3d at 1217.
“Subjective motivation in turn requires that the defendants had actual knowledge of the plaintiffs’
protected speech, which can be established by circumstantial evidence.” Indigo Room, Inc. v. City
of Fort Myers, 589 Fed. Appx. 938, 947 (11th Cir. 2014). Moreover, a close temporal proximity

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between the protected speech and the retaliatory act can imply causation. See Alvarez v. Sec’y,
Florida Dept. of Corr., 646 Fed. Appx. 858, 865 (11th Cir. 2016).
Of course, causation here is proved merely by temporal proximity (the harassment started
immediately after Plaintiffs supported Alfie Leon in the runoff election, ceased temporarily when
Fuller filed the Ethics Complaint, and resumed with a vengeance when that Complaint was
withdrawn) and also by circumstantial evidence (Carollo developing a list of just Plaintiffs’
properties, walking Code Enforcement by each property, and instructing them to find violations,
in addition to the mere frequency of the harassment). Perhaps more importantly, however, there
is also direct evidence from the people who worked with Carollo. Carollo’s former employee,
Steve Miro, testified under oath that when Carollo “took office, you know, he went after Mr. Fuller,
obviously,” and that the reason Carollo did so was “[Fuller] went against him in the commissioners
by donations to -- giving him building,” meaning that Fuller went against Carollo in the run-off
election by supporting his opponent, Alfie Leon, and allowing Leon to use Fuller’s property to
conduct a rally across from the early voting center. Director of Code Enforcement Orlando Diez
told Fuller that his holiday party was a political target by Carollo. City Manager Daniel Alfonso,
when asked by Fuller if the raid on Sanguich was a retaliation against Fuller from the incoming
commissioner Carollo, the City Manager responded simply by saying “si.” When discussing the
citations with the Sanguich owners, Carollo stated, that he loved their business, just “maybe not
where you are,” because “my problem is not as much with you as it is with your landlord.”
Carollo was also heard bragging to patrons of the El Pub bar that he would do everything possible
to shut down Union Beer, where Plaintiffs are partners. In fact, another City Commissioner has
stated explicitly that Carollo is targeting the festival to “fuck with Fuller.” Miro explained that
Carollo was trying to shut down the wildly popular Viernes Culturales “Just because it’s
[Fuller’s].”
Thus, Plaintiffs have established all three of the elements required to prove a Section 1983
retaliation claim and are likely to succeed on the merits.5

5
Carollo may argue that he is entitled to qualified immunity. If so, Plaintiffs’ reply will show that
he is not. Briefly, To receive qualified immunity, a public official “must first prove that he was
acting within the scope of his discretionary authority when the allegedly wrongful acts occurred.”
Bennet, 423 F.3d at 1247. Establishing that a public official was acting within the scope of his
discretionary authority is normally an easy standard to satisfy, but here Carollo cannot even do

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(3) Plaintiffs Have Established Irreparable Injury


The United States Supreme Court held that “[t]he loss of First Amendment freedoms, for
even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427
U.S. 347, 373 (1976). The Eleventh Circuit has also held that “[i]t is well settled that the loss of
First Amendment freedoms for even minimal periods of time constitutes irreparable injury
justifying the grant of a preliminary injunction.” Cate, 707 F.2d at 1188. The Eleventh Circuit
further held that “direct penalization, as opposed to incidental inhibition, of First Amendment
rights constitutes irreparable injury.” Id; see also, e.g., KH Outdoor, LLC v. City of Trussville, 458
F.3d 1261, 1272 (11th Cir. 2006) (“the injury in this case constituted ‘direct penalization, as
opposed to incidental inhibition’ of First Amendment rights and thus could not be remedied absent
an injunction.”).
Cases granting preliminary injunctions on these grounds are legion in this Circuit. See, e.g.,
Snowden v. Town of Bay Harbor Islands, Fla., 358 F. Supp. 2d 1178, 1188–89 (S.D. Fla. 2004)
(“loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes
irreparable injury”); Baumann v. City of Cumming, Georgia, 2:07-CV-0095-WCO, 2007 WL
9710767, at *7 (N.D. Ga. Nov. 2, 2007) (“the injury in this case involves ‘direct penalization, as
opposed to incidental inhibition,’ of First Amendment rights. As such, the injury cannot be cured
by an award of money damages. Thus, absent an injunction, the injury is irreparable”); Butler v.

that. As the Eleventh Circuit reaffirmed just last week, on October 2, 2018, where a state law
restricts a government official’s acts or discretion, and the official acts in violation of the state law,
the official is not acting within his discretionary authority. See Estate of Cummings v. Davenport,
17-13999, 2018 WL 4705723, at *4 (11th Cir. Oct. 2, 2018). Here, Carollo was also criminally
violating the Miami City Charter in his harassment of Plaintiffs.

Even if Carollo had been acting within his discretionary authority, Plaintiffs still can “show
that qualified immunity is not appropriate,” Bennett, 423 F.3d at 1247, if the Constitution right in
question “was clearly established.” Saucier v. Katz, 533 U.S. 194, 201 (2001). Here, the Eleventh
Circuit has already held that retaliation against the exercise of free speech and assembly establishes
a constitutional violation and that this is clearly established law. See Bennett, 423 F.3d at 1255-
56 (“Because this Court has held since at least 1988 that it is ‘settled law’ that the government may
not retaliate against citizens for the exercise of First Amendment rights, Ga. Ass’n of Educators,
856 F.2d at 145, we hold that the defendants were on notice and had “fair warning” that retaliating
against the plaintiffs for their support of the 1998 referendum would violate the plaintiffs’
constitutional rights and, if the plaintiffs’ allegations are true, would lead to liability under §
1983.”). Given the strength of the Eleventh Circuit precedent, Plaintiffs will have little difficulty
prevailing on the issue of qualified immunity.

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Alabama Jud. Inquiry Commn., 111 F. Supp. 2d 1224, 1239 (M.D. Ala. 2000) (“[i]n short,
irreparable harm is not difficult to establish when the impairment of First Amendment rights is at
issue”); White v. Baker, 696 F. Supp. 2d 1289, 1312–13 (N.D. Ga. 2010) (“Plaintiffs that show a
chilling effect on free expression have demonstrated an irreparable injury”).
(4) The Balance of Equities Favors A Preliminary Injunction
As the Federal District Court in Nevada recently held in a retaliation case with less onerous
facts than here: “The same reasons that establish Plaintiffs’ likelihood of success on the merits
underlie the balance of equities—the First Amendment serves to protect persons from precisely
the type of retaliation Plaintiffs allege in this case.” Hof v. Nye County, 2018 WL 4107897, at *7–
8 (D. Nev. Aug. 28, 2018). Accordingly, the Hof court held that “the balance of equities tips
sharply in favor of Plaintiffs, given that the United States Constitution and federal law provide
explicit protections for political speech and certain protected activity.” Id. Many other courts in
this district have likewise concluded that the injury caused by retaliation for free speech and
association far outweighs any harm from an injunction. See, e.g., Broward Coalition of Condo.,
Homeowners Assoc. and Community Org. Inc. v. Browning, 2008 WL 4791004, at *14 (N.D. Fla.
Oct. 29, 2008) (“the balance of interests favors the Plaintiffs because the Supreme Court has made
clear that in any conflict between First Amendment rights and regulation, courts ‘must give the
benefit of any doubt to protecting rather than stifling speech’”); Boomer v. Marion County, 2007
WL 9684182, at *4 (M.D. Fla. Sept. 21, 2007) (holding that “any harm that arises from temporarily
prohibiting the County from enforcing the ordinance at issue is certainly outweighed by the harm
that Plaintiff would suffer from being arrested or fined”); Baumann v. City of Cumming, Georgia,
2007 WL 9710767, at *7 (N.D. Ga. Nov. 2, 2007) (“Plaintiff’s threatened injury outweighs
whatever damage the injunction may cause the city. Even the temporary infringement of First
Amendment rights constitutes a serious and substantial injury, and the city has no legitimate
interest in enforcing an unconstitutional ordinance”).
The injury caused by Carollo’s retaliation far outweighs any harm to Carollo resulting from
this injunction, because all that is required from Carollo is that he strictly follows the law. In fact,
any alleged hardship suffered by Carollo from refraining from violating the City Charter, abusing
city resources, intimidating and threatening Code Compliance and Miami Police Officers, and city
officials, hardly compares to the deprivation of Plaintiffs’ First Amendment right to engage in free
political speech, that has resulted from Carollo’s retaliatory crusade. There is no harm to the City

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of Miami either, which has survived for many years without its commissioners harassing local
business owners.
(5) A Preliminary Injunction Will Advance The Public Interest
The public interest is advanced by entry of preliminary injunction barring Carollo from
continuing his long-standing retaliatory campaign against the Plaintiffs. As the Eleventh Circuit
has held, “the public interest is always served in promoting First Amendment values . . . .” Suntrust
Bank v. Houghton Mifflin Co., 268 F.3d 1257, 1276 (11th Cir. 2001); see also Barrett v. Walker
County Sch. Dist., 872 F.3d 1209, 1230 (11th Cir. 2017); Univ. Books & Videos, Inc. v. Metro.
Dade County, 33 F. Supp. 2d 1364, 1374 (S.D. Fla. 1999) (“[t]he public interest always is served
when constitutional rights, especially free speech, are vindicated”); Howard v. City of Jacksonville,
109 F. Supp. 2d 1360, 1365 (M.D. Fla. 2000) (“[t]he public interest is served by the maintenance
of First Amendment freedoms and could not possibly be served by the enforcement of an
unconstitutional Ordinance”).
In First Amendment retaliation cases, “the public interest would be enhanced by such an
injunction” because “it is important for the public to know that they can exercise their First
Amendment rights without fear of unconstitutional retaliation.” Vollette v. Watson, 978 F. Supp.
2d 572, 598 (E.D. Va. 2013) (“Sheriff Watson engaged in unconstitutional retaliation. On these
facts, the public interest is thus clearly served by the remedy of an injunction”); Hof, 2018 WL
4107897, at *7–8 (in First Amendment retaliation case, the “Court also finds that the public interest
is in Plaintiffs’ favor. The public has a strong interest in maintaining the protections afforded by
the First Amendment.”). Here, the public interest clearly favors the preliminary injunction.
(6) The Preliminary Injunction Should Issue Without A Bond
Federal Rule of Civil Procedure 65(c) provides that a bond should be posted when a
preliminary injunction is issued. District Courts, however, “have discretion to waive this
requirement,” and “[c]ases raising constitutional issues are particularly appropriate for a waiver of
the bond requirement.” Browning, 2008 WL 4791004, at *15, order clarified, 2008 WL 4878917
(N.D. Fla. Nov. 2, 2008) (waiving bond requirement where restrictions imposed by regulation
violated plaintiffs’ First Amendment rights of free speech).
In fact, many federal courts in Florida have held that “[w]aiving the bond requirement is
particularly appropriate where a plaintiff alleges the infringement of a fundamental constitutional
right.” Complete Angler, LLC v. City of Clearwater, Fla., 607 F. Supp. 2d 1326, 1335–36 (M.D.

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Fla. 2009) (granting preliminary injunction as to plaintiffs’ First Amendment claim and waiving
bond); see also, e.g., FF Cosmetics FL Inc. v. City of Miami Beach, Florida, 129 F. Supp. 3d 1316,
1336 (S.D. Fla. 2015), aff’d, 866 F.3d 1290 (11th Cir. 2017) (waiving bond because “to
preliminarily enjoin the challenged ordinances is to vindicate the public interest in the freedom of
speech”); Gilio ex rel. J.G. v. Sch. Bd. of Hillsborough County, Fla., 905 F. Supp. 2d 1262, 1276
(M.D. Fla. 2012) (holding that, where a plaintiff’s fundamental constitutional right of free speech
is at issue, it is appropriate to waive bond requirement); Boomer, 2007 WL 9684182, at *4 (M.D.
Fla. Sept. 21, 2007) (“enjoining Defendants Marion County and Sheriff Dean . . . from enforcing
the unconstitutional ordinance would not cause them serious harm . . . Accordingly, the Court does
not require Plaintiff to post bond in this case”); Univ. Books and Videos, Inc. v. Metro. Dade
County, 33 F. Supp.2d 1364, 1374 (S.D. Fla. 1999) (bond not required when (1) party seeking
injunction has a high probability of succeeding on the merits; (2) party to be enjoined is a
municipality or county government that likely would not incur any significant cost or monetary
damages from the injunction’s issuance; and (3) requiring a bond would injure the constitutional
rights of the party or the public).6
CONCLUSION
Wherefore, Plaintiffs respectfully request Carollo be preliminarily and permanently
enjoined from (a) having any contact with Plaintiffs, Plaintiffs’ properties, tenants, employees,
partners, or any affiliates of Plaintiffs, (b) making any requests to, or providing any instructions or
suggestions to, any city employees concerning Plaintiffs, Plaintiffs’ properties, tenants,
employees, partners or any affiliates of Plaintiffs, (c) enjoined from entering any of Plaintiffs’
properties.

6
Moreover, in cases where courts have deemed a bond to be appropriate, plaintiffs were only
required to post a nominal bond. See Occupy Fort Myers v. City of Fort Myers, 882 F. Supp. 2d
1320, 1340 (M.D. Fla. 2011) (where portions of city ordinances were found to likely violate the
First Amendment, a nominal $100 bond was required to be posted by the plaintiff.); Minahan v.
City of Fort Myers, Fla., 2014 WL 7177998, at *4 (M.D. Fla. Dec. 16, 2014) (nominal bond of
$100 was required, where plaintiffs’ First Amendment protected speech was violated by a City
Ordinance and a preliminary injunction was issued); Coal. of Immokalee Workers, Inc. v. Town of
Palm Beach, Florida, 2016 WL 8739993, at *12 (S.D. Fla. Mar. 11, 2016) (where restrictions to
First Amendment rights to free political speech entitled the plaintiff to preliminary injunctive
relief, the Court required a one-thousand dollar bond).

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REQUEST FOR HEARING


Plaintiffs respectfully request that this Court grant Plaintiffs an evidentiary hearing and
oral argument to address the issues herein. Preliminarily, Plaintiffs are also filing an appropriate
Motion for Expedited Hearing pursuant to S.D. Fla. L.R. 7.1(d). Nevertheless, Plaintiffs state here
that an evidentiary hearing and oral argument is necessary for several reasons.
First, an evidentiary hearing is necessary as Plaintiffs have in their position several videos
that cannot be presented by affidavit, and several individuals have provided testimony and
information in relation to an investigative report completed by the Ethics Commission pertaining
to Carollo’s actions, which Plaintiffs cannot present by affidavit. Plaintiffs seek to have those
individuals, and others, testify at the hearing and provide compelling evidence to support the
granting of a preliminary injunction.
Second, a hearing would permit Plaintiffs to answer any questions this Court may have
beyond what is set forth in the Motion for Preliminary Injunction and Verified Complaint.
Plaintiffs also request oral argument on the motion for Preliminary Injunction for the same reason.
Third, Carollo’s retaliation, which violates Plaintiffs’ First Amendment rights to freedom
of speech, to peaceably assemble, and to petition the Government for redress of grievances, is
ongoing and causing severe damage to Plaintiffs’ business operations. Therefore an expedited
hearing is necessary so that Plaintiffs may present their arguments, and receive the requested relief
as soon as possible so that they may resume their peaceful lives and business operations.
Plaintiffs estimate that the time needed for the evidentiary hearing and oral argument on
the Motion for Preliminary Injunction is approximately 6 hours. Further, Plaintiffs respectfully
request that the hearing occur during the weeks of October 29, 2018 or November 5, 2018, which
would allow both Plaintiffs and the Defendants sufficient time to gather any additional evidence,
including the subpoenaing of witnesses if necessary, prior to an evidentiary hearing, while also
setting the hearing on an expedited basis.

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Respectfully submitted,

AXS LAW GROUP, PLLC


2121 NW 2nd Avenue, Suite 201
Miami, FL 33127
Tel: 305.297.1878

By: /s/ Jeffrey W. Gutchess


Jeffrey W. Gutchess (FBN 702641)
jeff@axslawgroup.com
Brandon Rose (FBN 99984)
brandon@axslawgroup.com

Counsel for Plaintiffs

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