Third District Court of Appeal
State of Florida
Opinion filed August 24, 2022.
Not final until disposition of timely filed motion for rehearing.
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No. 3D21-2413
Lower Tribunal No. 19-32153
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City of Miami, et al.,
Petitioners,
vs.
David Rivera, et al.,
Respondents.
A Writ of Certiorari to the Circuit Court for Miami-Dade County, Migna
Sanchez-Llorens, Judge.
Victoria Méndez, City Attorney, and Kerri L. McNulty, Senior
Appellate Counsel, and Bryan E. Capdevila, Assistant City Attorney, for
petitioners.
Lawton Law, PLLC, and Lindsey Lawton (Tallahassee), for
respondents.
Before SCALES, HENDON and MILLER, JJ.
HENDON, J.
The petitioners, City of Miami (“City”) and its fire chief, Joseph
Zahralban (“Chief Zahralban”) (collectively, “Petitioners”), seek certiorari
review of the trial court’s order denying their motion to dismiss several
counts for defamation alleged in the First Amended Complaint (“amended
complaint”) filed by three City firefighters, David Rivera, Kevin Meizoso,
and Justin Rumbaugh (collectively, “Respondents”). We grant the petition
and quash the portion of the order denying the Petitioners’ motion to
dismiss the defamation counts as they are barred by absolute immunity.
I. FACTS AND PROCEDURAL HISTORY:
The underlying action stems from an incident that occurred at a City
fire station in September 2017, where a Black City firefighter discovered
that his family photos had been defaced with phallic images and also found
a string—shaped like a noose—draped over one of his family photos.
Following an investigation by the City of Miami Police Department, the City
terminated six firefighters, including the three Respondents. 1
Following their termination, the Respondents filed suit against the
City and Chief Zahralban. The Respondents’ amended complaint alleged,
among other things, as follows. On the evening of September 8, 2017,
during Shift A, Lt. Sese directed a group of eleven or twelve firefighters,
1
The three firefighters were terminated by the City, but they proceeded to
arbitration and were later reinstated.
2
including the Respondents, to draw phallic images on the family photos of
another lieutenant, Lt. Webster, who was not present at the fire station. 2
On the morning of September 9, 2017, the Respondents’ shift ended, and
they left the fire station. On September 10, 2017, during Shift B, someone
placed the noose over one of the defaced photos, and the Respondents
were not present when this occurred and do not know who placed the
noose over the defaced photo.
Upon discovering the defaced photos and the noose on September
10, 2017, Lt. Webster reported the incident. At Chief Zahralban’s request,
the City of Miami Police Department investigated the incident, and
generated a report, indicating that the drawing of the phallic images on the
family photos and the placing of the noose over one of the photos were two
separate incidents, separated by days and employees. Further, the
Respondents’ involvement, if any, was limited to drawing the phallic images
on the photos, and there was no evidence that they, directly or indirectly,
caused the noose to be placed over one of the defaced photos. In addition
to the investigation conducted by the City’s police department, Assistant
Chief Robert Jorge also investigated the matter and generated an
administrative report, finding that the defaced photos and the noose were
2
The amended complaint alleges that Rivera did not participate in defacing
the photos, and attempted to discourage others from doing so.
3
the result of two separate events.
On November 1, 2017, the City terminated the Respondents. The
Respondents’ termination letters referenced the defaced photos, but not
the noose.
The amended complaint references two communications made by
Chief Zahralban—a written press release on November 2, 2017, and an
oral statement made at a press conference on November 3, 2017. The
written press release states, in part, as follows:
On September 9th, 2017, a member with the City of Miami Fire
Rescue was a victim of a hideous, distasteful act of hate in one
of our fire stations. This Lieutenant of 17 years with the
department, discovered his family photos were defaced with
lewd and sexually explicit renderings and a noose draped over
one [of] the photos. This was immediately reported to my staff
and as a result, I personally responded to the station. Appalled
by my observation, I immediately requested the Miami Police
Department investigate the matter and temporarily transferred
all personnel assigned to that station, per our department
policy.
During the investigation, findings determined eleven (11)
personnel had some involvement with the incident and they
were relieved of duty. Additional evidence discovered identified
six (6) of those individuals directly involved and swift
administrative action was implemented.
Under my authority, a Captain, a Lieutenant and 4 firefighters
were terminated for offenses surrounding egregious and hateful
conduct.
The Respondents alleged that the second paragraph was false because
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there were two separate incidents, not one as indicated in the highlighted
paragraph, and the Respondents were not, directly or indirectly, involved
with the placement of the noose over one of the defaced photos. In
addition to Chief Zahralban’s statement, the press release included the
termination letters, photos of the terminated firefighters, and photos of the
noose draped over one of Lt. Webster’s family photos with his family
members’ faces redacted. The press release, however, did not include the
police report or the administrative report, which indicated that the defacing
of the photos and the draping of the noose were two incidents, separated
by days and employees. Further, the Respondents alleged that during the
press conference held on November 3, 2017, Chief Zahralban described
the defacing of the photos and the draping of the noose as a single event.
Thus, based on Chief Zahralban’s written and oral statements, the
Respondents alleged they were falsely portrayed as racists who were
responsible for placing the noose over the defaced photos, causing them
irreparable harm.
In the amended complaint, the Respondents alleged the following
counts against the City or Chief Zahralban: Count I—Defamation (Libel)
against the City as to Rivera; Count II—Defamation (Slander) against the
City as to Rivera; Count III—Defamation (Libel) against Chief Zahralban as
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to Rivera; Count IV—Defamation (Slander) against Chief Zahralban as to
Rivera; Count V—Defamation (Libel) against the City as to Meizoso; Count
VI—Defamation (Slander) against the City as to Meizoso; Count VII—
Defamation (Libel) against Chief Zahralban as to Meizoso; Count VIII—
Defamation (Slander) against Chief Zahralban as to Meizoso; Count IX—
Defamation (Libel) against the City as to Rumbaugh; Count X—Defamation
(Slander) against the City as to Rumbaugh; Count XI—Defamation (Libel)
against Chief Zahralban as to Rumbaugh; Count XII—Defamation
(Slander) against Chief Zahralban as to Rumbaugh; and Count XIII—
Declaratory Relief, in the alternative as to the other counts alleged against
the Petitioners, as to the Respondents’ rights relating to, among other
things, the withholding of a redacted administrative report and police report
following the public records requests made by the Respondents, and
requesting that the trial court make a declaration that the Respondents “did
not place the Noose Shaped String over the Marked-Up photos so that in
the future, should they seek employment in another department, they have
a Court Order that proves they did not place the Noose Shaped String Over
the Marked-Up Photos,” and that the “Defendants withheld the truth from
the public.”
The City and Chief Zahralban filed a motion to dismiss the amended
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complaint. They asserted the following arguments: (1) Counts I through
XII must be dismissed because Chief Zahralban and the City have absolute
immunity for all statements made by Chief Zahralban; (2) in the event
Counts I through XII are not dismissed, Counts III, VII, and XI should be
dismissed because they are duplicative of Counts I, V, and IX; (3) Count
XIII must be dismissed, arguing, among other things, that (a) seeking
declaratory relief under section 86.011, Florida Statutes, the Respondents
must allege doubt as to the existence of a legal right, and under that
statute, the trial court does not have the authority to make factual findings;
(b) under the public records statutes (Chapter 119), the Respondents may
file a declaratory action asking the court to declare rights pursuant to the
public records disclosure, but may not ask the court to make findings as to
whether the Respondents placed the noose over the photos when that
finding is completely unrelated to the issue of the public records disclosure;
and (c) the Respondents have proceeded to arbitration for their
terminations, and copies of the reports were turned over to their legal
counsel, via a public records request.
Following the Respondents’ response opposing the motion to
dismiss, the trial court conducted a hearing. At the conclusion of the
hearing, the trial court took the Petitioners’ motion to dismiss under
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advisement, and requested that the parties submit proposed orders.
Thereafter, the trial court entered an unelaborated order granting, in part,
and denying, in part, the Petitioners’ motion to dismiss. The trial court
dismissed Counts III, VII, and XI as duplicative of Counts I, V, and IX;
dismissed Count XIII based on failure to state a cause of action/mootness;
and ordered the Petitioners to respond to the remaining counts in the
amended complaint within twenty days from the date of the order. The
Petitioners’ petition for writ of certiorari followed.
II. ANALYSIS:
The Petitioners seek certiorari review of the non-final, non-appealable
order denying, in part, their motion to dismiss based on absolute immunity.
To be entitled to certiorari relief, the Petitioners must establish the
following: (1) a departure from the essential requirements of law, (2)
resulting in material injury for the remainder of the case, and (3) the injury
cannot be adequately remedied on direct appeal. See Bd. of Trs. of
Internal Improvement Tr. Fund v. Am. Educ. Enters., LLC,
99 So. 3d 450,
454-55 (Fla. 2012); Am. Franchise Grp. LLC v. Gastone,
319 So. 3d 147,
149 (Fla. 3d DCA 2021). The last two elements—a material injury that
cannot be adequately remedied on direct appeal—are jurisdictional and
must be analyzed before considering whether there was a departure from
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the essential requirements of law. Bd. of Trs.,
99 So. 3d at 454-55; Am.
Franchise Grp., 319 So. 3d at 149.
A. Certiorari Jurisdictional Analysis
Here, the Petitioners have established that this Court has certiorari
jurisdiction to address the trial court’s order denying their motion to dismiss
based on absolute immunity. “[A]bsolute immunity protects a party from
having to defend a lawsuit at all, and waiting until final appeal to review an
order denying dismissal on immunity grounds renders such immunity
meaningless if the lower court denied dismissal in error.” Fla. State Univ.
Bd. of Trs. v. Monk,
68 So. 3d 316, 318 (Fla. 1st DCA 2011); see also
Stephens v. Geoghegan,
702 So. 2d 517, 521 (Fla. 2d DCA 1997) (stating
that because absolute immunity is immunity from suit, certiorari relief is
appropriate).
B. Merits Analysis
As the Petitioners have established the jurisdictional threshold for
certiorari relief, we now address whether the trial court departed from the
essential requirements of law by denying the Petitioners’ motion to dismiss
the defamation counts based on absolute immunity. We conclude the trial
court did depart from the essential requirements of law.
In Florida, public officials are absolutely immune from suit for
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defamation as long as their allegedly defamatory statements were made
within the scope of their duties. See del Pino Allen v. Santelises,
271 So.
3d 1112, 1114 (Fla. 3d DCA 2019) (quoting Stephens,
702 So. 2d at 522)
(“Public officials who make statements within the scope of their duties are
absolutely immune from suit for defamation.”); Cameron v. Jastremski,
246
So. 3d 385, 387 (Fla. 4th DCA 2018) (same); Cassell v. India,
964 So. 2d
190, 193 (Fla. 4th DCA 2007) (same). The scope of a public official’s duties
is to be liberally construed. Cameron, 246 So. 3d at 388; Cassell,
964 So.
2d at 194.
Here, Chief Zahralban is the director of the City’s fire-rescue
department. See § 2-232, City of Miami Code (stating, in part, that “[t]he fire
chief shall be the director of the department of fire-rescue”). As the director
of the fire-rescue department, Chief Zahralban is responsible for personnel
decisions of the fire force. See § 2-233, City of Miami Code (stating that
“the director of the department of fire-rescue shall administer the affairs of
the department, which shall include the immediate direction and control of
the fire force . . . .”). Further, the written and oral statements made by
Chief Zahralban relating to the terminations of the Respondents fell within
scope of his duties as the director of the fire-rescue department. The
statements kept the public informed as to the termination of the three City
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firefighters as a result of an incident(s) that occurred at a City fire station.
See Martinez de Castro v. Stoddard,
314 So. 3d 397, 403 (Fla. 3d DCA
2020) (“Mayor Stoddard’s blog post and letter regarding the actions and
conduct of Chief Martinez de Castro fell within scope of his duties as
mayor—to keep his constituents informed of current events and operations
within the City of South Miami and its government, including the operations
and performance of his police department and its police chief.”); see also
Hauser v. Urchisin,
231 So. 2d 6, 6-8 (Fla. 1970) (holding that city
commission had absolute immunity from lawsuit for defamatory statements
made to press regarding former city prosecutor’s dismissal); Quintero v.
Diaz,
300 So. 3d 288 (Fla. 3d DCA 2020) (holding that “Diaz—as Mayor—
enjoys absolute immunity from statements contained in the termination
letter as they are shielded by privilege from suit”). Therefore, Chief
Zahralban and the City are absolutely immune from suit for Chief
Zahralban’s written and oral statements relating to the City’s termination of
the Respondents as the statements were made within the scope of Chief
Zahralban’s duties as the director of the City’s fire-rescue department. As
such, the trial court departed from the essential requirements of law by
denying Chief Zahralban’s and the City’s motion to dismiss on absolute
immunity grounds. Accordingly, we grant the petition and quash the portion
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of the order denying the Petitioners’ motion to dismiss the defamation
counts as they are barred by absolute immunity.
The remaining arguments raised by the Respondents in response to
the petition for writ of certiorari lack merit and do not warrant discussion.
Petition granted and order quashed consistent with this opinion.
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