The City of Miami Beach Can Do No Wrong


The City of Miami Beach HEADER
Mayor Philip ‘King’ Levine



Two Section 1983 Cases Dismissed

7 April 2015

By David Arthur Walters

Section 1983 of the Ku Klux Klan Act of 1871 provides civil redress for persons who are deprived of their civil rights by persons acting under the color of law, namely government officials and their governments or anyone else acting by their authority. Section 1985 specifically provides for the award of damages to persons deprived of the equal protection of the laws by two or more conspirators.

The history of complaints brought under the acts forged by the 42nd Congress at the close of the Civil War demonstrates that courts would rather not hold any governmental authority liable. Government officials, especially legislators, prosecutors and judges, have a natural prejudice in favor of sovereign immunity, the ancient principle of tyranny that the king is above the law and that he and his ministers can do no wrong unless they specifically waive immunity. Although sovereign immunity may not be mentioned explicitly, the prejudice underlies or is “subconscious” in Section 1983 litigation.

Even though the people are theoretically sovereign in the United States of America, and even though their representatives have waived sovereign immunity for the tortious conduct of governments, it is difficult if not impossible enjoin such conduct or to collect damages. One may argue, for example, that the violation of civil rights is a constitutional tort and not a regular civil tort, so the waiver does not apply.

As for the gross negligence of officials, consider the notorious precedent set by the Supreme Court of Florida in Trianon Park Condominiums v. The City of Hialeah in 1985: a decision that has ever since cultivated negligence in the florid state by sanctioning negligence as within the sovereign discretion of public officials.

The court held that “The discretionary power to enforce compliance with the building code flows from the police power of the state. In that regard, this power is no different from the discretionary power exercised by the police officer on the street in enforcing a criminal statute, the discretionary power exercised by a prosecutor in deciding whether to prosecute, or the discretionary power exercised by a judge in making the determination as to whether to incarcerate a defendant or place him on probation.”

Further, “we find that no statutory duty for the benefit of individual citizens was created by the city’s adoption of the building code, and, therefore, there is no tort liability on the part of the city to the condominium owners for the allegedly negligent exercise of the police power function of enforcing compliance with the building code.

The court thus stripped government officials of their duty, leaving them subject to their whims and prejudices. Discretion is tyranny in the absence of a beneficent will.

As long as courts hew to the public duty principle of no duty to anyone, which they must adhere to once it is mouthed by the high court, their hands are tied by a logically absurd fiction. The Florida decision on sovereign immunity was definitely political; politics distributes hierarchically the absolute power worshiped by patriarchic religion. Still, three justices out of seven dissented in Trianon, with Justices and Ehrlich and Shaw writing dissenting opinions pointing out the inconsistencies in their colleagues’ specious reasoning, which upon careful analysis was really not pretty enough to be called specious. Chief Justice Joseph A. Boyd, Jr., had been the City Attorney of Hialeah, and he had represented, as a County Commissioner, the area that included Hialeah. If he had recused himself, the outcome would have been a 3-3 decision, the tie favoring Trianon instead of Hialeah.

There would have been no dissent if that case had been brought in federal court under Section 1983 for the deprivation of the property rights of the condominium owners whose homes were damaged because the building inspectors in the exercise of the police power did not provide them with equal protection of the laws. Most likely the federal judge would summarily dismiss the case upon the argument of the city attorney that the city was not obliged to protect everyone equally and there was no solid evidence of deliberate discrimination, so the case should never be considered by a jury.

In a humiliating defeat for Rod Eisenberg, who sued the City of Miami Beach in federal court for shutting down his historic Sadigo Court Apartment Hotel in South Beach’s Collins Park area, throwing his guests onto to the street and arresting him in alleged retaliation for his complaints about the corruption and negligence of city officials, U.S. District Court Judge Cecilia M. Altonaga, in an Order dated 16 December 2014, summarily dismissed his complaint on a technicality using what appears to be erroneous reasoning just as his attorneys were preparing to go to trial in January after surviving the city’s previous motion for summary dismissal.

The lack of an automatic fire sprinkler system in the three-story building situated in a commercial district near the beach was the apparent pretext for the closure and prosecution of Eisenberg. It appeared to him, trained as a lawyer but not licensed to practice, that either sprinklers were not required or that a safety “equivalent” compromise was provided by prevailing firesafety standards. The Sadigo was licensed as a transient apartment building by the state, and the city had been accepting resort taxes for that use from him. When he resisted, an alternative channel was allegedly offered to satisfy the officials; impliedly, a bribe, which was a rather common practice if the long history of corruption was any indication. He fought city hall and city hall won. His potential exposure for refusing to install $70,000 of sprinklers to the detriment of the historical characteristics of his building now stands at $4 million.

Judge Altonaga has exhibited the usual prejudices in favor of governmental authority. Florida’s dominating Cuban-American community wanted to see her sitting on the United States Supreme Court. She was reportedly on President George W. Bush’s short list for the nomination, but retiring Justice Sandra Day O’Connor’s seat went to Samuel Alito instead. She made short shrift of Eisenberg’s complaint that he was not afforded the equal protection of the laws, for lack of comparatives showing that others were treated better than he, a showing that is not really necessary when a single case of official abuse of power suffices under some circumstances. The comparatives would have been there if extensive and intelligent research had been made. As every Miami Beach old-timer well knows, the one thing that is consistent in Miami Beach government is the arbitrary and selective enforcement of codes, and that the selection is often made according to the primitive law of retaliation.

But every possible count was rendered moot by Altonaga when she ruled that, according to the so-called common law rigged in previous cases, the city itself did not make the policy he complained of because he could have appealed it to a county fire appeals board that has heard only five cases over five years and has ruled against the petitioner in all but one. Never mind that the county would not be liable under the same principle inasmuch as it is a subsidiary of the state and is governed by state statute, and the state would not be liable because it is afforded sovereign immunity by the U.S. Supreme Court’s misinterpretation of the Eleventh Amendment to the Constitution.

The City of Miami Beach, its fire chief, fire marshal, city magistrate and city commission clearly had ample discretion under state law to set policy and did so, and enforced it much to the detriment of Rod Eisenberg. It should matter not that he would not grease hands, or had a longstanding grudge against the same city attorneys, had sued it before and had otherwise been an official pain in the bureaucratic ass.

Tellingly, the common law that a city is not responsible for doing its duty because it can blame some higher power, a tactic not available to non-governmental entities, was also taken by Altonaga in a 2009 case, Florida Carpenters Regional Council v. City of Miami Beach.

“Municipalities may not be held liable under 42 U.S.C. § 1983 on a respondeat superior theory, but they may be held liable for the execution of a governmental policy or custom. As a result, municipal liability under § 1983 is incurred only where a deliberate choice to follow a course of action is made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question.” (Citations omitted)

The Carpenters union made a claim under Section 1983 that its members had been deprived of their First Amendment rights when they demonstrated against hotel policies on the beach and then were harassed and prosecuted for violation of the city’s subjective noise ordinances. Section 1983, as misinterpreted by federal judges, asserts that the municipality being sued set the policy complained of, and not some high power. However, because the Carpenters had failed to clearly and expressly allege any facts that the municipality itself was the policymaker, at least according to Altonaga’s intuition, the claim was held invalid by her as to the form purportedly required by the rules of procedure:

“Here, the Council does not allege action by a City official who has final policymaking authority. Although the Council alleges the City has no authority to revoke a citation after it is issued by a code enforcement officer, the Council also alleges: (1) a special master reviews citationsand rules whether fines should be paid; (2) the special master conducts an evidentiary hearing at which a party may be represented by counsel; and (3) the Council has appealed four of the fivecitations for review by a special master. Based on these allegations, the code enforcement officers are not final policymakers because the citations are subject to meaningful administrative review.”

People who are actually intimate with the City of Miami Beach’s quasi-judicial magistrate or special master agency know very well that it is in fact a policymaking agency of the city government. It is definitely not an independent branch of city government inasmuch as the city’s strong manager/weak mayor charter or council-manager system has no branches, a form that was condemned as “fascistic” by opponents a century ago. Indeed, strong arguments can be made that the city with its special master agency is unconstitutional hence un-American because it does not accord with the political wisdom of the nation’s founders.

According to City Attorney Jose Smith, who was city attorney at the time of the Carpenters suit against the city, the special master is a creature of the city commission and can be abolished by the commission. In other words, the special masters had better do what they are told to do. That city agency has long been a honey pot for case-fixing attorneys. Fines for noise complaints for commercial noise that would put the union megaphones to shame have been routinely reduced or dismissed.

A controversy erupted during the summer of 2012 between the city attorneys and a special master by the name of Babak Movahedi because he refused to go along with the write-down of fines and case dismissals. City Attorney Smith sought his dismissal along with the dismissal of Chief Special Master Abe Laeser, who supported Movahedi, and the installation of Smith’sCuban-American colleague as the new chief. Smith, in response to my objection that his office had dismissed a particular case decided by Movahedi, observed that “Despite what a Special Master might rule, the City ALWAYS retains the inherent, sovereign right, in its discretion, to settle, compromise, or dismiss a case where it is deemed to be in the city’s best interest.”After Jimmy Morales, formerly city attorney for Doral, took over as city manager for the City of Miami Beach, he dismissed the special masters and installed new ones because, he said, he wanted to take the special masters in a “new direction.” Jose Smith resigned as city attorney, and upon his recommendation, Raul Aguila was appointed.

So, yes, city policies are subject to “meaningful review,” meaning that the city reviews it own policies hence remains the policymaker. This sort of absurd question begging is not even specious in the sense of being pretty yet it is part of the gallimaufry common to judge-made common law when authority needs to be absolved of responsibility for doing its duty.

Another distinction Altonaga was careful to take up on cue in the Carpenters case was between “facial” and “as applied.” A particular law may be obviously or on its face unconstitutional, or it may be unconstitutionally applied. Courts are generally reluctant to declare laws unconstitutional as written because to do so may require a great deal of speculation as to the consequences of their application to unknown cases.

The Carpenters alleged that the city’s noise ordinance depended upon subjective assessments of noise levels by code officers as to what was unreasonably loud inasmuch as they took no decibel readings, and, when it was pointed out to an officer that the sound emitted from the union’s megaphone was no louder than music coming from the hotel, the officer said the hotel had a permit for the music, but the union had no permit for its noise.

“The Council also alleges in Count II the City’s enforcement is both arbitrary, because theCouncil must guess at when and how it may use megaphones, and subjective, because the citations describe the noise from the Council’s megaphones as ‘unreasonably loud’ and ‘unnecessary.’ Thus, the Council argues, the City’s ‘enforcement is perhaps better characterized as utterly arbitrary and subjective enforcement.’”

That might be true, but it cannot be allowed by the mind-boggled judge because of some defect in the way it was pled; to wit, that it was seemingly pled as if the noise ordinance were facially unconstitutional instead of unconstitutionally applied, which is the substance of the pleading that the court is not blind to, so on and so forth, anything to dismiss the case and prevent it from going to trial.

“The Council also alleges in Count II the City’s enforcement is both arbitrary, because the Council must guess at when and how it may use megaphones, and subjective, because the citations describe the noise from the Council’s megaphones as “unreasonably loud” and “unnecessary”…..The Council cites no authority for the proposition that it may raise an as-applied challenge for arbitrary and subjective enforcement. All the cases it cites found ordinances facially unconstitutional because they were capable of arbitrary and subjective enforcement…. The Council also argues in its Response, in support of Count II, the ordinance is capable of arbitrary and subjective enforcement. But Count II is an as-applied challenge, not a facialchallenge. The Council has not explained how allegations of arbitrary and subjective enforcement—other than those thatwould be sufficient under Olech–state a claim for an as-applied challenge. In sum, Count II fails to state a claim for arbitrary and subjective enforcement.”

“Olech” was parenthetically mentioned because: “To state a claim for arbitrary enforcement under the equal protection clause, which the Supreme Court has described as a ‘class of one’claim, a plaintiff must allege ‘that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.’ Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). As already discussed, the Council has not alleged that the City treated it differently from a similarly situated individual. Count II fails to state a claim for arbitrary enforcement under Olech.”

A class is needed because it is impossible for government to enforce every law equally, so enforcement often appears to be random, as a warning to violators. And the police power may prioritize enforcement for good reason. Although the members of the Carpenters union are not a class of persons protected by laws against discrimination against race, color, religion, creed, national origin, sex, age, disability, citizenship, genetics, and so on, they may be at least a “class of one” created by judicial fiat. Therefore, according to the judge, the demonstrators must show that they were discriminated against in comparison to other demonstrators. Perhaps others were allowed to demonstrate and raise a racket with megaphones at a hotel elsewhere on the beach. Never mind that non-union noisemakers are seldom cited, and, when they are, there cases are dismissed or fines radically reduced as a matter of city policy.

No doubt a clever lawyer could reasonably counter every reason given by Altonaga for dismissing the Carpenters case, but still she would not allow it to go to trial.

As for the Eisenberg case, Altonaga tossed his equal protection argument, in her first round of dismissals in the Summary Judgement Game, for lack of comparatives. Careful research would probably discover that his case is a case of one, andsimilarly situated persons, except for their amicable relations with the city, were allowed to go Scott Free.

On the other hand, the city government is as notorious for its bungling as its corruption. Laymen might wonder how a jury would decide Eisenberg’s case if officials were not intentionally retaliating against Eisenberg for being a troublemaker or for not paying bribes.

In any case, no doubt Altonaga and her ilk clearly do their level best to make certain his and like cases are not heard by juries no matter what facts and laws are asserted. That is not to say that the majority of jurors selected, given their experience as travelers in need of a safe and relaxing vacation, would not believe that government has an overriding interest in ensuring that vacationers are not disturbed by noisy demonstrators and do not perish in fires due to a lack of fire sprinklers.

Has anything changed other than rampant real estate development in the City of Miami Beach? The jury is still out on that question. However, nothing will deprive it and its officials of sovereign immunity, so they have little to worry about on that score.


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