Third District Court of Appeal
State of Florida
Opinion filed January 31, 2024.
Not final until disposition of timely filed motion for rehearing.
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No. 3D23-1082
Lower Tribunal No. 23-2633
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Jay R. Chernoff,
Appellant,
vs.
City of North Miami Beach, et al.,
Appellees.
An Appeal from a non-final order from the Circuit Court for Miami-
Dade County, Peter R. Lopez, Judge.
Reiner & Reiner, P.A., and David P. Reiner, II; Kuehne Davis Law,
P.A., and Benedict P. Kuehne, Michael T. Davis, and Johan Dos Santos;
Michael A. Pizzi, Jr., P.A., and Michael A. Pizzi, Jr., for appellant.
Brodsky Fotiu-Wojtowicz, PLLC, and Benjamin H. Brodsky and Max
Eichenblatt, for appellee, Commissioner Michael Joseph.
Before HENDON, MILLER, and LOBREE, JJ.
HENDON, J.
Jay R. Chernoff, Commissioner for the City of North Miami Beach
(“Appellant” or “Commissioner Chernoff”), seeks to vacate the order of the
lower court and remand with directions to approve the decision of the City
Commission to remove Commissioner Michael Joseph (“Commissioner
Joseph”) from office for violation of the required attendance rule. We affirm.
In February 2023, Commissioner Chernoff filed a complaint against
Commissioner Joseph seeking to remove him from office. Commissioner
Chernoff alleged that Commissioner Joseph failed to attend a regular
commission meeting for a period of 120 days, from October 2022 to
February 2023, and his seat was thus automatically vacated pursuant to
section 2.5 of the City Charter.1 In an amended complaint filed on March
13, 2023, Commissioner Chernoff added Commissioner Fleurimond to the
1
Section 2.5 of the North Miami Beach Charter provides:
Sec. 2.5 - Quorum and Attendance of the City Commission.
A quorum of the City Commission at any regular or special
meeting shall consist of five members. Except as otherwise
provided herein, the affirmative vote of a majority of the quorum
present shall be required upon any matter submitted for
consideration of the Commission. If any Commissioner has
failed to attend a meeting of the City Commission for a period of
one hundred and twenty (120) days, the seat of such
Commissioner shall automatically become vacant.
https://library.municode.com/fl/north_miami_beach/codes/code_of_ordinan
ces?nodeId=PTICH.
2
action and sought his removal based on the same section of the Charter. 2
Commissioners Joseph and Fleurimond filed a joint counterclaim in
response, arguing that the Charter language “failed to attend” starts the
120-day period from the first non-attended meeting. They argue that as
there was no meeting in November, and because Commissioner Joseph
missed the December 20, 2022 meeting because of illness, the 120-day
period began from the missed December meeting. 3
Commissioner Chernoff and Mayor DeFillipo sought to hold a vote at
the May 16, 2023 Commission meeting to determine if Commissioners
Joseph and Fleurimond had vacated their seats pursuant to the Charter.
2
Commissioner Chernoff claims that despite Commissioner Fleurimond’s
attendance at the Commission meeting on December 20, 2022, this
attendance should not count because he left the meeting before a final vote
on the City Attorney’s termination. Commissioner Chernoff claims that this
should not count as an “attended” meeting because, in his view,
Fleurimond violated the City’s Code of Ordinances requiring commissioners
to remain at meetings barring an emergency. Using the same application of
the Charter provision, Commissioner Chernoff sought summary removal of
Commissioner Fleurimond for “failure to attend” a meeting from October 18,
2022 to March 13, 2023.
3
Commissioner Fleurimond did not attend the January 17, 2023 meeting
for the same reasons as Commissioner Joseph, in protest of the continued
tenure of Mayor DeFillipo and to prevent a vote to oust the City Attorney.
Both Commissioners Joseph and Fleurimond attended commission
meetings in February, March, and April 2023.
3
Commissioners Joseph and Fleurimond 4 filed an emergency motion for
injunctive relief, seeking to enjoin the commission from so voting. The trial
court denied relief without prejudice.
On May 16, 2023, the City Commission met; six of the seven
commission members were present at the meeting. Commissioner
Chernoff and Commissioner Fleurimond recused themselves from the
meeting prior to public discussion on the vote due to conflict of interest,
leaving only four commission members present. After public discussion,
the remaining members of the City Commission voted three-to-one in favor
of vacating Commissioner Joseph’s seat, effectively removing him from
office.
Commissioner Joseph filed a renewed emergency motion for
temporary injunction to enjoin the City from wrongfully excluding him from
his elected office and from holding a special election to replace his seat.
The trial court held an evidentiary hearing, concluded that Commissioner
Joseph had established all of the elements required for a temporary
injunction, and granted relief. In its order, the trial court determined that a
quorum of commissioners did not exist at the May 16, 2023 vote regarding
4
On May 19, 2023, Commissioner Chernoff voluntarily dismissed his
claims against Commissioner Fleurimond, with prejudice, and
Commissioner Fleurimond voluntarily dismissed his counterclaims against
Commissioner Chernoff, with prejudice.
4
Commissioner Joseph’s seat. Of the six commissioners present, only four
commission members voted on the issue as two commissioners had
recused themselves for conflict of interest, and the City Charter provides
that a quorum “shall” consist of five members. The trial court concluded
that, “the recusal/disqualification of two Commission members in this case
did not reduce the number of Commission members needed to satisfy the
quorum requirement. Due to the lack of a quorum, the May 16, 2023 vote
on whether Commissioner Joseph had vacated his position is VOID and of
no effect.” The trial court further determined that the Commission had no
legal authorization to vote on the issue, and the vote was of no effect
anyway as the Charter provides that a 120-day absence results in an
automatic vacation of the commission seat.
Finally, the trial court concluded that the Commission’s calculation of
the 120-day time period was incorrect. City procedural precedent provided
that the proper start time for calculating the 120-day period was from the
date of the first missed meeting: in 2018, the Commission that existed at
that time determined that another commissioner, Commissioner Pierre, had
vacated his position for failure to attend a meeting for a 120-day period
based on the recommendation of the City Attorney, who used the day
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Commissioner Pierre first failed to attend a regular City Commission
meeting to calculate the 120-day period.
The trial court found that neither the City nor its citizens are
irreparably harmed by the temporary injunction; that Commissioner Joseph
will be irreparably harmed without injunctive relief; Commissioner Joseph
has no adequate remedy at law; the balance of all factors favor
Commissioner Joseph; and public interest favors the relief ordered. The
court ordered Commissioner Joseph to post a $1,000.00 bond.
Commissioner Chernoff appeals.
"[T]he standard of appellate review with respect to the interpretation
of a charter or ordinance is de novo." Lacayo v. Versailles Gardens I
Condo. Ass'n, Inc., 325 So. 3d 295, 297 (Fla. 3d DCA 2021) (quoting
Martinez v. Hernandez, 227 So. 3d 1257, 1259 (Fla. 3d DCA 2017)). To the
extent the decision to enter a temporary injunction involves an exercise of
discretion, we defer to the trial court unless it has abused its discretion. See
id. at 1258; Fla. Dep't of Health v. Florigrown, LLC, 317 So. 3d 1101, 1110
(Fla. 2021). Further, when there are no factual disputes in the record, the
only issue for the appellate court to determine is the trial court’s legal
conclusion, which is reviewed de novo. Gainesville Woman Care, LLC v.
State, 210 So. 3d 1243, 1258, 1265 (Fla. 2017).
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Discussion
A quorum did not exist for the May 16, 2023 vote on Commissioner
Joseph’s seat. Six commissioners were present for the May 16
commission meeting, but two of them – Commissioner Joseph and
Commissioner Chernoff – were obligated to recuse themselves from the
vote on Commissioner Joseph’s seat vacancy issue based on a conflict of
interest, as both were named parties in the underlying lawsuit to determine
that very issue. That left four voting commission members. The Charter
specifically provides that a quorum of the City Commission at any regular
or special meeting shall consist of five members. It is significant that the
two non-voting commission members were recused, and did not merely
abstain from voting. As recused commission members, they were not
entitled to vote. As such, the remaining four voting-eligible members did
not comprise a quorum.
Commissioner Chernoff argues that "members of a board abstaining
from voting are counted for purposes of a quorum … although they may not
necessarily by [sic] counted in determining whether an issue has been
accorded a sufficient vote to constitute the action of a board," quoting
Shaughnessy v. Metropolitan Dade County, 238 So.2d 466, 468 (Fla. 3d
DCA 1970) (emphasis added). Commissioner Chernoff also cites an
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Attorney General opinion that states in the body of the opinion the
exception that “members of a legislative body vote on matters coming
before them unless they have a conflict of interest,” citing section 286.012,
Florida Statutes, as amended by Ch. 75-208, Laws of Florida (effective
October 1, 1975) (emphasis added). 5 See 67A C.J.S. Parliamentary Law §
5
See Attorney General Opinion AGO 2008-39, which advises:
This office has issued a number of opinions considering voting
requirements when officials abstain from voting or are
prohibited from voting. In Attorney General Opinion 74-160, this
office concluded that where only four members of a five-
member town commission are present at a meeting of that
body, the adoption of a resolution requires the affirmative vote
of three members irrespective of the fact that one of the
members present abstained from voting. That opinion stated
that "[t]he fact that one member abstained from voting has no
effect on the statutory provision that the adoption of a resolution
requires that affirmative vote of a majority of the members
present."
The conclusion in Attorney General Opinion 74-160, however,
was based on the provisions of section 286.012, Florida
Statutes, read together with section 112.3143, Florida Statutes,
which, prior to the 1984 amendments to these statutes did not
mandate a voting abstention in the case of a conflict, but
afforded the officer a choice as to whether to abstain from
voting or to vote and file a memorandum within 15 days
disclosing the nature of his interest. The statute, prior to its
1984 amendment, did not prohibit a public officer from voting in
any situation; after the 1984 amendment, a local public officer
was prohibited from voting on those measures which inure to
his special gain or which, to his knowledge inure to the special
gain of any principal by whom he is retained.
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5 (“Members disqualified because of interest cannot be counted for the
purpose of making a quorum or a majority of the quorum.”).
In the case at hand, the difference between recusal and abstention is
dispositive. The two commission members who recused themselves did not
have the legal right to vote on an issue directly related to the litigation they
were party to; they did not merely abstain from voting while retaining the
right to vote. This distinction, in combination with the Charter’s specific
mandatory provision for a five-member quorum, makes a difference in the
legal determination of the validity of the commission’s four-member vote.
In Attorney General Opinion 85-40, this office considered the
effect of the 1984 amendment to section 112.3143(3), Florida
Statutes. The amendment prohibited, rather than requiring a
mere abstention, a public officer from voting in his official
capacity on a matter in which he had a personal, private or
professional interest and which inured to his special private
gain or that of a principal by whom he or she was retained. The
opinion discusses the meaning of the term quorum and
concludes that "a quorum is a certain number of a governing or
legislative body who are legally entitled to act." (e.s.) The
opinion considers a scenario in which all five members of a
municipality are present at a meeting but two members are
prohibited by statute from voting on the matter under
consideration. Thus, only three members of the town council
are present who are legally entitled to act. Relying on the
definitions of "quorum," the opinion concludes that the effect of
the prohibition in section 112.3143, Florida Statutes, is to
preclude those members who are prohibited from voting from
being considered to be part of the quorum for that matter.
https://www.myfloridalegal.com/ag-opinions/council-of-childrens-services-
taxation-voting (footnotes omitted; emphasis added).
9
We conclude on de novo review of this issue that there was no quorum and
the vote was invalid.
We next determine that the Commission’s calculation of the start of
the 120-day period was in error based on the plain language of the Charter.
Section 2.5 of the Charter provides, in relevant part, that “[i]f any
Commissioner has failed to attend a meeting of the City Commission for a
period of one hundred and twenty (120) days, the seat of such
Commissioner shall automatically become vacant.” (Emphasis added). As
the trial court explained,
It is undisputed that Joseph attended a Commission meeting on
October 18, 2022. In November of 2022, no Commission
meeting was held. On December 20, 2022, a meeting was held
and Joseph did not attend. He attended the March 20, 2023
Commission meeting. If, as contended by Commissioner
Chernoff and the City, the 120-day period began to run the day
after October 18, 2022, the last meeting that Joseph attended,
then 120 days would have elapsed and Joseph’s position would
have become vacant. However, if the 120-day period began to
run on December 20, 2022, the day of the first meeting that
Joseph failed to attend, then 120 days did not elapse and his
position would not have become vacant. The City Commission,
in voting that Joseph vacated his position, necessarily
calculated the period using the day after the last meeting that
Joseph attended. This contradicts the plain language of Section
2.5 which requires a failure to attend a meeting, as one cannot
fail to attend a meeting that does not exist.
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After a full examination of the record and the Charter language, we
conclude that the 120-day window starts to run from the date of the
meeting that a commissioner failed to attend.
We decline to address the remaining issues on appeal. Accordingly,
we affirm.
Affirmed.
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