As we reported yesterday, the City of Miami Springs has officially filed a lawsuit against Factory Town, the entertainment venue that has operated multiple concerts till 5am (including school nights).  As we’ve reported before, this venue is not using simple DJ equipment.  It’s not even the kind of sound equipment found at the River Cities Festival.  This is the kind of equipment used at the Ultra Music Festival.  Specifically, the deep bass from the electronic concert produces a constant boom, boom, boom that resonated throughout Miami Springs.

Below is the text of the lawsuit filed by the City of Miami Springs in the 11th judicial circuit court in Miami-Dade County:


 

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IN THE 11TH JUDICIAL CIRCUIT COURT IN AND FOR MIAMI-DADE COUNTY, FLORIDA

CITY OF MIAMI SPRINGS, FLORIDA,

Plaintiff,

v.

FACTORY TOWN HOLDINGS, LLC

Defendant.

VERIFIED COMPLAINT FOR PERMANENT INJUNCTION AND EMERGENCY EX PARTE MOTION FOR PRELIMINARY INJUNCTIVE RELIEF

Plaintiff, City of Miami Springs, Florida (“City”), hereby seeks entry of a preliminary and permanent injunction against Defendant, Factory Town Holdings, LLC (“Factory Town” or “Defendant”), to immediately enjoin chronic nuisances caused by, among other things, the loud and excessive noise (“Nuisances”) from the entertainment venue located at 4800 NW 37th Avenue, Hialeah, Florida 33142 (“Property”). The Nuisances stemming from the Property have gone unchecked, creating a significant annoyance to the City’s residents, as evidenced by the 243 calls to the City’s emergency police line relating to the Nuisances, resulting in the City’s request for an immediate and permanent injunction to abate the Nuisances.

PARTIES AND VENUE

1. The City is a Florida municipal corporation located in Miami-Dade County, Florida.

2. Factory Town Holdings, LLC is a Florida Limited Liability Company and owner of the Property.

3. The Property’s physical address is 4800 NW 37th Avenue, Hialeah, Florida 33142 and is legally described in the Special Warranty Deed, attached hereto as Exhibit “A.” The Property is located within the jurisdictional boundaries of the City of Hialeah, in close proximity to the City and its residents.

4. The Circuit Court has jurisdiction over this matter, which seeks injunctive relief, under Section 26.012(3), Fla. Stat.

5. Venue is proper in Miami-Dade County under Sections 47.011, Fla. Stat. because the Defendant conducts business here, the Property is located here, and all acts complained of occurred here.

GENERAL ALLEGATIONS

6. Under Section 823.05, Fla. Stat.:

Whoever shall erect, establish, continue, or maintain, own or lease any building, booth, tent or place which tends to annoy the community or injure the health of the community, or become manifestly injurious to the morals or manners of the people as described in s. 823.01, shall be deemed guilty of maintaining a nuisance, and the building, erection, place, tent or booth and the furniture, fixtures, and contents are declared a nuisance.

7. Section 60.05, Fla. Stat. provides, in part:

(1) When any nuisance, as defined in s. 823.05 exists, the Attorney General, state attorney, city attorney, county attorney, sheriff, or any citizen of the county may sue in the name of the state on his or her relation to enjoin the nuisance, the person or persons maintaining it, and the owner or agent of the building or ground on which the nuisance exists.

(2) The court may allow a temporary injunction without bond on proper proof being made. If it appears by evidence or affidavit that a temporary injunction should be issued, the court, pending the determination on final hearing, may enjoin any of the following: 3 Weiss Serota Helfman Cole & Bierman P.L.

(a) The maintaining of a nuisance.

(b) The operating and maintaining of the place or premises where the nuisance is maintained.

(c) The owner or agent of the building or ground upon which the nuisance exists.

(d) The conduct, operation, or maintenance of any business or activity operated or maintained in the building or on the premises in connection with or incident to the maintenance of the nuisance.

8. Between December 2, 2021 and December 5, 2021, the City’s Police Department received over 243 complaints concerning the Nuisances. A copy of the City’s Police Dispatch Log, relating to noise complaints emanating from Factory Town, between December 2, 2021 and December 5, 2021, is attached hereto as Exhibit “B.”

9. During that time, the loud noise emanating from Factory Town persisted until 3:00 a.m., leaving residents of the City scared and unable to sleep. 1 Some residents feared for their safety, believing that the reverberations from the Nuisances would cause their roof to collapse. See, e.g. https://www.miaminewtimes.com/news/miami-springs-residents-noise-complaintsfactory-town-hialeah-13470673 (last accessed January 19, 2022) and https://www.nbcmiami.com/news/local/miami-springs-at-odds-with-hialeah-over-noisecomplaints-from-art-week-parties/2636575/ (last accessed on January 19, 2022).

10. Factory Town’s actions have annoyed the community and residents of the City, and therefore constitute a public nuisance, in violation of the laws of the State of Florida.

11. Pursuant to Section 60.05(3)(a), Fla. Stat., on December 13, 2021, after an unsuccessful attempt to discuss the issues with the City of Hialeah, which issued a permit for the events that caused the Nuisances, the City personally served Factory Town with its Notice to Abate 1 Attached hereto as Exhibit “C” are images from various social media accounts showing the crowds congregating at events held at the Property. 4 Weiss Serota Helfman Cole & Bierman P.L. Nuisances (“Initial Notice”). The Initial Notice gave Factory Town ten (10) days to abate the Nuisances or provide a written response to the City providing proof that:

1. Nuisance abatement involves compliance with another law of this state and the requirements of such law make nuisance abatement within 10 days impossible; or

2. The terms of an executed contract to perform services necessary to abate the nuisance require more than 10 days to complete. Attached hereto as Composite Exhibit “D” is the Initial Notice and the corresponding return of service.

12. Factory Town failed to respond to the Initial Notice. Accordingly, in compliance with Section 60.05(3)(b), Fla. Stat., the City personally served its Second Notice to Abate Nuisances (“Second Notice”).2 The Second Notice requested the same relief as the Initial Notice and gave Factory Town fifteen (15) days to respond. The Notice further advised Factory Town that if it failed to respond, the City would seek an injunction against Factory Town in the Circuit Court in and for Miami-Dade County, Florida. Attached hereto as Composite Exhibit “E” is the Second Notice and the corresponding return of service.

13. Factory Town has been unresponsive to the Notices.

14. Despite the fact that Factory Town cannot erase the past Nuisances, it can and must abate the Nuisances going forward. It is abundantly clear, based on Factory Town’s failure to respond to the Notices, that it does not intend to take any actions to mitigate the Nuisances; instead, Factory Town will continue carrying on its loud, raucous events. 3 In fact, Factory Town is currently 2 The Initial Notice and Second Notice shall collectively be referred to as, the “Notices.” 3 See, e.g. https://www.edmtunes.com/2022/01/get-lost-announces-miami-music-weekevent-at-factory-town/ (last accessed on January 19, 2022). 5 Weiss Serota Helfman Cole & Bierman P.L. promoting a twenty-four hour outdoor concert event, across the entire Property, to coincide with the Ultra Music Festival on March 26, 2022. 4 Without an injunction, there is nothing to stop Factory Town from projecting excessive noise into the City again, which will result in hundreds more complaints from the City’s residents.

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15. The only solution to protect the City’s residents is to require Factory Town to immediately terminate its operations to abate the Nuisances until Factory Town presents the Court with a plan to eliminate the Nuisances from affecting the City’s residents.

ATTORNEY’S CERTIFICATION THAT EX PARTE
TEMPORARY RELIEF IS WARRANTED

16. Pursuant to Rule 1.610(a)(1)(B), Florida Rules of Civil Procedure, the undersigned attorneys certify that notice of the requested temporary injunction (to which the City, as described above, has demonstrated a clear legal right to obtain) has been satisfied based on personal service of the Notices to Factory Town. The Notices clearly set out the City’s intent to seek the relief requested herein and further provide the date, time, and court where relief would be sought. 5  Further, the facts show that the time required to notice a hearing on a temporary injunction would permit Factory Town to continue to injure the public until a hearing is held and would exacerbate the injury to the City’s residents.


4 Attached hereto as Composite Exhibit “F” are images from Factory Town’s social media accounts including its Instagram and Facebook accounts, promoting the twenty-four hour concert to be held across the entire Property starting March 26, 2022 at 5 a.m.

5 Pursuant to the Second Notice, “the City will seek a temporary injunction against Factory Town on January 18, 2022 at 10:00 a.m. in the Circuit Court in and for Miami-Dade County, Florida.” However, because personal service was not effectuated until January 5, 2022, the statutory deadline for a response, under Section 60.05(3)(b), Fla. Stat., was January 18, 2022. Accordingly, the City had to wait an additional day to seek relief.


COUNT I – INJUNCTIVE RELIEF

17. The City incorporates paragraphs 1 through 16 as though fully set forth herein.

18. Factory Town’s operations at the Property constitute a public nuisance as defined by Section 823.05, F.S.

19. Pursuant to Section 60.05, F.S., the City’s attorney may maintain an action for injunctive relief against any person, natural or corporate, to enjoin the nuisance.

20. Irreparable harm has occurred and will continue to occur to the City and the community if Factory Town is not enjoined. “Where the government seeks an injunction in order to enforce its police power, any alternative legal remedy is ignored and irreparable harm is presumed.” Metro. Dade County v. O’Brien, 660 So. 2d 364, 365 (Fla. 3d DCA 1995).

21. The City has a clear legal right to an injunction under these circumstances because the activity occurring at the Property is deemed a nuisance by Section 823.05, F.S. “The duty of protecting the property right of all its citizens is sufficient warranty in issuing the injunction. Therefore, wherever a public nuisance is shown, equity must enjoin it at the suit of the government. Every place where a public statute is openly, publicly, repeatedly, continuously, persistently and intentionally violated, is a public nuisance.” Philbrick v. City of Miami Beach, 3 So. 2d 144, 145 (Fla. 1941) (emphasis added).

22. Enjoining Factory Town from hosting any other events until such time as a remediation plan for reducing the noise is approved and implemented will clearly benefit the public by eliminating a public nuisance as well as giving Factory Town an opportunity to conduct its business in a way that does not annoy the City’s residents.

23. The City is entitled to preliminary and permanent injunctive relief addressing the Nuisances created by Factory Town.

WHEREFORE, the City respectfully requests that this Court:

a. Enter a preliminary injunction, ex parte, as authorized by Fla. R. Civ. P. 1.610, 6 requiring immediate abatement of the Nuisances; 7

b. Enter a permanent injunction requiring Factory Town, along with Factory Town’s partners, agents, contractors, representatives, vendors, event promotors, operators, and any transferee, assignee, successor in interest, or purchaser that may acquire Factory Town or the Property or operate at the Property, to operate under a remediation plan approved by the Court; and

c. Grant such other relief as the Court deems just and equitable.


6 Pursuant to the Notices, in compliance with Fla. R. Civ. P. 1.610, Factory Town was provided with reasonable notice of the City’s intentions to seek an injunction.

7 The City will provide a proposed preliminary injunction order to the Court for consideration that outlines the requirements necessary to address the Nuisances.


 

Download the PDF of the lawsuit including the Exhibits.

 

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