How Miami Beach Officials Get Away With Torture

Umberto Boccioni, The Street Enters The House
 
OPEN LETTER
Michael Grieco, Commissioner
THE CITY OF MIAMI BEACH
Miami Beach, Florida

Plea for Formal Remediation of Unreasonable Noise and Maladministration

Dear Commission Grieco:

I have posted this letter on the Web for your easy reference. You have said that my letters are too long for your cell phone, so I am hoping that you have access to a desktop or laptop computer. I am also hoping that your colleagues have the equipment and power of continuous concentration to consider this document and act upon it. If I do receive a response, I shall provide voluminous factual information to support my thesis upon request

This is my petition for legislative and administrative action to mitigate unreasonable noise, vibrations, exhaust fumes, and other pollution in construction projects in the City of Miami Beach by requiring contractors to include statements of probable pollution impact and their remediation program in their bidding documents, and by requiring owners and developers to provide temporary housing to residents whose lives are unreasonably impacted by construction pollution in all events, and especially when the city waives the charter provision of a civil right against such disturbances.

The need for such legislation was made evident to your neighbors during the horizontal drilling of a 2/3 mile long redundant sewer line. The noise, vibrations, and fumes around the entry and exit holes can only be described as torturous, of the nature that terrorists and other criminals are subjected to by the police power in other parts of the world in order to drive them out of their buildings or to confess to their crimes.

The only expression of concern was that the customers of Joe’s Restaurant, frequented by the affluent and vested interests, not be disturbed.

The charter protection was waived by the city because the drilling contractor had contracted to be present on the North Dakota pipeline. A responsible city official for that reason declared that the project was “time sensitive,” but implied that the city was in imminent danger of being inundated by sewage, which if expressly stated would have been a bald-faced lie. There was no emergency. In fact, an engineering report stated that there was a very small chance of a break in the existing sewer main, and that there was no imminent danger of it failing. The drilling team left town a year ago and the redundant project is just now winding up.
Many complaints and pleas were submitted by victims to the mayor, commissioners, and administrative officials. Responsibility for the outrageous disturbance on weekends and evenings was shamefully shirked by administrative officials, with the exception of Eric Carpenter. The mayor was too important to receive the victims at city hall; the commissioners, who were notified time and again of the issue, were unresponsive.
The rule of thumb when only a small number of people are disturbed is not to provide for their general welfare but to ignore them the best one can. This usually works politically because of the local culture: with some remarkable exceptions, people not only do not love their neighbors but they do not even want to know them unless there is something in it for them. Further, traumatized people tend to be concerned with their own predicaments to the exclusion of others.
The duty to address the complaints was delegated to the general contractor and his public relations employee. Shutting down the project until adequate sound protection could be obtained was out of the question due to the drilling team’s scheduling needs. The general contractor slapped together a wooden box for the gigantic engine to reduce the decibels. That project created more noise in the evenings and took all too long for a minimal result. In fine, it was too little too late, including too late to file for an injunction in circuit court, and the racket dragged on for months. The public relations sophist did what she could, which was to simply shine people on with specious rhetoric.

A meeting was held by your powerful neighborhood association. A public works official finally publicly addressed the ongoing nuisance. As an engineer he had no sympathy with the people suffering the unreasonable pollution due to a drilling process that is usually employed out in the boondocks and not in the residential neighborhoods of small cities such as ours. I have an account of that meeting if you have a personal computer and the time to consider it.

That account includes the tearful complaint of a woman who was being tortured by unreasonable vibrations and noise at 419 Michigan Avenue, near your home. She apparently thought David Mancini was the city’s official contractor, and that the 419 Michigan Avenue project was his responsibility, which he has nothing to do with.
As you know, the groundwork at that site for a small hotel, across Michigan from the healthy Vibe studio, seemed almost interminable due to water conditions. I estimated that the entire declared valuation of the hotel construction was absorbed by the groundwork, although a superintendent told me the extent of the groundwork was expected. Still, I have asked the building department to collect affidavits and documents upon completion to make sure that a correct value is declared and all permit fees are paid, which has not always been done in the past under the city’s Rob Peter to Paul to Breakeven Policy.
I hope that woman has recovered. I shall never forget her tearful plea for relief from the awful noise and vibrations. But manly engineers and city officials are deaf to such pleas from small minorities. There is always collateral damage in the fog of war against nature. The fact that there are so many complaints in our city creates a din that tends to deafen city officials unless, again, there is something in it for them if they respond to it.
There were so-called activists around town who could have raised enough hell to get some relief. Unfortunately, they either had their noses in the wrong place, or they were afraid to speak up because they had their own needs. After all, His Honor the Mayor said after the last election that people who complained about things would have to wait until the next election to be heard.

Therefore, I hope you will at least respond with your position on what you can do to make sure that city officials in instances such as this provide for the welfare for all stakeholders, not just the welfare of those represented by the power elite’s political bureau on the commission.

Sincerely,

David Arthur Walters

Miami Beach Wages War on Black Week

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MIAMI BEACH WAR ON URBAN BEACH WEEK 2017

Fewer Arrests, Two Dead

May 31, 2017

By David Arthur Walters
PRESS INDEPENDENT

The City of Miami Beach has been waging war on the annual descent of hip hopping, pants-down gangsta rappers and their followers onto the beach every Memorial Day weekend for more than a decade.

The event is a derivative of the outrageous “Freaknik” celebration Atlanta managed to eradicate some years ago simply by towing cars moving at less than five mph. The anecdotal horrors there are legendary, including narratives of how young girls were raped on the hoods of cars to the cheers of the crowds. Freaknik wound up on South Beach, and was renamed Black Week. Then, to avoid racist overtones, it was dubbed Urban Beach Week.  Despite the fact that the majority of the attendees have been law-abiding, the bad apples turned it into a massive, disrespectful, and frightening racist event.

The high hopes of the city’s generals for peace, especially Mayor Philip Levine and Commissioner Michael Grieco, were punctuated this year by a murder over a parking space, a related police shooting leaving one man dead, shots fired into a taxi van, and a seaside melee where one celebrant stabbed another with a broken bottle.

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Michael Grieco was especially crestfallen. His strategy to diminish the pernicious influence of Urban Beach Week by calling in the Air Force and Navy in the form of the glorious ‘Air and Sea Show,’ which he sponsored and got passed by the City Commission, seemed to have failed albeit the roaring fighter jets flying upside down and doing loop de loops over the beach were indeed impressive and reminded everyone of the real meaning of Memorial Day. Outraged by the crime reports, the criminal defense lawyer and former prosecutor said there would be no more Urban Week on the beach, and threatened to have bars and restaurants shut down at 5 pm for the last two weeks of May in coming years.

Philip Levine, who happens to be a self-made man who rose from hawking tours on ships to an untold fortune, called a press conference, where he proposed a more moderate solution to Urban Week, banning liquor sales after 2 am on and near Ocean Drive. He indicated he had little respect for inherited fortune when he responded to the shouts of the owner of a belly dancing night club on Ocean Drive that the mayor should have respect for the industry that created the South Beach cache. The mayor shouted back to the effect that the club owner was the only business bellyaching, only because he would lose revenue if he did not stay open until 5 am as usual, and that he should try building a business from scratch instead of inheriting one and being stupid about the meaning of branding.

Now the de facto strong mayor and his commission majority have already managed to roll back drinking on sidewalk cafes to 2 am. A ban on sales both inside and outside Ocean Drive facilities might drive problem drinkers to other areas of the city, so the ban should be citywide. And if alcohol is the cause of trouble in general, why not make it midnight? Why not ten? Why not just have a dry city?

The mayor’s critics may cut him a break since he has decided not to run for reelection and they will soon not have him to kick around anymore. He has a legitimate concern with branding, and branding has been part of his successful business. ‘South Beach’ is in fact a brand name created just a few years ago although the daughter of one of the founders of Miami Beach used the name to denote the south end of the beach. The culture has changed over the years as the Anglo-Saxon population became mixed with Jews and Hispanics, and the brand has followed suit.

Blacks were not supposed to be on the beach after dark in the late 60s and early 70s; some were clubbed by cops for overstaying their welcome. There was a time when Jews were limited to the ghetto now called ‘South Pointe.’ When Cubans arrived in droves, signs could be seen that read, ‘For Rent – No Spics.’ The beach was blighted or suffered the doldrums at times for one reason or another, but it is crowded now, traffic is horrendous, real estate prices are sky high; the mayor’s inferiors, who have utterly failed to build their own businesses and get rich, are being squeezed out. And the mayor, who was supposed to get lots of credit for saving the city from the Great Flood with new pumps and road-raising as every cubic foot of remaining space was being over-developed by his fellow devleopers, is naturally blamed for the city’s ills.

Police Chief Daniel Oates made the only scientific remark at the press conference. He noted that the number of arrests were only half of those last year. That may well be because the crowd was smaller, but a smaller crowd does not necessarily mean well behaved. According to an employee of a Washington Avenue liquor store in the shooting zone this year, “the people were fewer but there were more bad apples.”

What Chief Oates knows is that, even with the best policing, a bomber may blow up your plans. You may make a good statistical guess at the number of minor crimes that will occur during an event, for those are many, but it is impossible to predict in any given year how many murders there will be, especially over parking spaces, for they are few in number if any at all in any given year and are not necessarily related to an event. That is, an argument over a parking space resulting in a shooting is a random or chance event that may occur despite the occasion for a particular event, and may happen on a normal day when some otherwise respectable person gets angry and loses his mind.

That the shooter who caused this body count was a 19-year-old rapper from Brooklyn with friends in a white Mercedes with New York tags down here to perform north of South Beach may be coincidental. Finding parking on Ocean Drive is not easy on normal weekends, and lots of nice people in Florida have guns because Florida is a dangerous place what with so many guns around. Gang bangers abound in South Florida urban areas, and they like to bring their guns and knives wherever they go, including South Beach. A shooting or knifing or two on South Beach ever so often is the norm. Should we blame whatever event that brings people to town for a random shooting?

True, disinhibiting alcohol is the cause of a great deal of trouble whenever it is served, and having a few drinks on Memorial Day Weekend is all the rage. There is a reason armies used to provide prodigious daily alcohol rations to troops; it helped them deal with the horrors of war. Jets roaring overhead inspired persons remembering brave warriors this Memorial Day. It made them feel powerful. Alcohol augments that feeling.

Certain “urban” areas of Chicago have become a war zone; violent crime spikes in those areas on Memorial Day Weekend, reaching a new high this weekend with a body count far higher than South Beach. The key to understanding Urban Beach Week is the socio-cultural meaning of “urban” and the anti-authoritarian celebration of violence of its music.

Philip Levine is right about having the right brand, but no matter how righteous it might be, he is waging a losing war against the very urbanism he has been promoting with advocacy of mass transportation from mainland Miami to the beach. Miami happens to be almost as urban as you can get, and it might not be long until his wealthy peers go elsewhere as the beach is urbanized.

Curbing liquor sales by two or three hours will have negligible effect. That assessment may be wrong, but where are the statistics during this prolonged battle for truncated hours, that the murderers were drinking at a particular place on Ocean Drive after 2 am before shooting someone, and that they had come to South Beach because the bars were open until 5 am? Where are the statistics that strongly indicate that more murderers come to South Beach for Urban Beach Week?

Never mind, killers or not, residents do not like Urban Beach Week because they are disrespected at that time, and many cheered when police officers fired 116 bullets into Raymond Herisse’s car in 2011, with 16 of those bullets striking him dead. That was the Tipping Point. Barriers to a replay were set up, crowds diminished, this year the beach had a more salt-and-pepper crowd as real Memorial Day events were promoted; and now this: two dead, one stabbed—not bad actually.

What we have here in the blaming of restaurant hours is the attribution of effects to a wrong cause. It’s not the restaurants, it’s not the hours during which alcohol is sold, it’s the culture, “stupid.” Well, people are not as stupid as it might seem. They just do not know how to stop the violence because it is rooted in the fabric of our society and human nature.

Protecting the residential areas with barriers, checkpoints with license plate readers, running cars in a circle, crawling the area with cops, calling in the Army and Navy—all that helps in one way or another, but there are still going to be shootings from time to time.

Thanks for all that security, dear city officials and police officers. It was not so bad this year. Cry not in your beer, Commissioner Grieco, we loved the Air and Sea Show. Relax, Mayor Levine, you have our sympathies. Maybe Urban  Beach Week will go to another area, or we can all get together and sing America the Beautiful next year.

Somehow we must stop the violence within ourselves, wager the Inner Jihad, before all hell breaks loose. Let us not kid ourselves about the truth of the matter, and what we must teach at home and in schools lest our decadent nation disintegrates and winds up in the proverbial dustbin of history sooner than expected.

xYx

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Floatopia Will NOT Be Tolerated in South Beach!


FLOATOPIA WILL NOT BE TOLERATED!

KING PHILIP LEVINE SCREAMED

18 April 2016 C.E. 

By David Arthur Walters

Miami Beach

“Floatopia will NOT be tolerated!” screamed Philip “King” Levine on his Vanity Timeline @mayorphiliplevine aka @mayorego. “STOP!” yelled the King, and he screamed again, “NEVER AGAIN!”

Yelling and Screaming has been banned by the King because almost all Yelling and Screaming, like everything else that happens in the realm, is about HRM. Of course an Exception must be made for His Exceptional Self.

Thousands of commoners descended upon the Royal Beach from the poorest precincts of the Realm with floatation devices on the Sabbath. The flash mob snarled traffic and littered the Beach, and many carefree participants relieved themselves in the ocean. They brought their own food and beverage. Only one sale was made on the King’s Beach, an inflatable plastic inner tube, purchased at Walgreens.   

The main complaint was the traffic, for only the King is allowed to snarl traffic, with his Get It Done capital improvement programs in order to line the pockets of developers, contractors, and event promoters bearing Letters of Patent, to boost money laundering and tourism, and to ostensibly save the Realm from Global Warming and Sewage. 

His Majesty commanded his Chief Horseman, Jimmy Morales, Esquire, to announce a scheme to His Majesty’s Court to violate his subjects’ common law right to float in such a way that the new law would avoid the Appearance of Impropriety abhorred by The Kings Inn. 

That the King is above the Law as the Source of the Law is beyond the shadow of a doubt, wherefore the Court, which, according to Chamberlain Michael Grieco, a Barrister specializing in criminal cases, “almost always” approves Recommendations that His Majesty commands Sir Morales to make to the Court, will compose a Pragma, upon which shall be placed the Royal Seal, that there shalt NEVER AGAIN be a Floatation Day without a Floatation Tax of 2,822 Norman shillings (US$200) levied on each Floatation Device and duly remitted to the Royal Treasury. Only the floatation devices of Cuban refugees shall be exempt from the Floatation Tax. 

That absolutely legal device is expected to STOP Floatation Day because only the most loyal of subjects, few in number, will pay the Tax or go to Gaol, for he who pays the King shillings or takes his shillings is the King’s man.

XYX

 

The Wooden Government of Miami Beach

THE WOODEN GOVERNMENT OF MIAMI BEACH

 
BY
DAVID ARTHUR WALTERS
 

“The noise is too loud!” “What?” “THE NOISE IS TOO LOUD!” “WHAT?” THE NOISE IS TOO DAMN LOUD! IT’S DRIVING US CRAZY!” “OH, NOISE. NO, THE NOISE IS ACCEPTIBLE BECAUSE WE HAVE PERMITTED IT!”

Noise from the trenchless drilling of the Miami Beach redundant sewer in densely populated South Beach has nearly driven people anywhere near the engines crazy.

 

The main fault is laid upon the government and not the contractors, from which we have already received illuminating comments from John English of Horizontal Technologies, an industry spokesman and consulting subcontractor to general contractor David Mancini & Sons and drillers Spartan Directional, and Hard Rock Directional:

 

“You are starting to embarrass yourself now. I have read better stuff in middle school papers. Not even sure what the article is about. I doubt they are interested in my opinion that the article is poorly written. Continue your tantrum until someone notices. I saw a young girl doing the same in a grocery store this weekend, just as annoying…”

 

Mr. English, an avid fan of Ayn Rand who quotes Atlas Shrugged on his company’s website, has compared the protection of human beings from excessive and unnecessary noise in densely populated Miami Beach to unwarranted governmental protection of birds and snails in their natural environment.


Atlas Shrugged is a novel that rationalizes selfishness. Sales of the book soared after the Enron Scandal because businessmen felt they were being unfairly prosecuted for saving the nation.

 

Mr. English said that anyone who associates noise with civil rights is an “idiot.” Since that category would include hundreds of legislators throughout the country, they are being apprised of his opinion even though he does not think it would matter to them.

 

On the other hand, he said there was room for improvement in horizontal directional drilling. Even so, he said, benefits at present far outweigh its costs.

 

Human beings may listen to recordings of the noise taken before and after the city’s wooden attempt at noise reduction:


BEFORE THE WOODEN RESPONSE


Channel 10 edited the video tape to make it appear that the city had taken “reasonable” steps. The gentleman who made that statement was himself trying to be reasonable, and was disappointed in the editing, especially after hell-on-earth continued.


The longstanding unnecessary and excessive noise was actually permitted by the city against its own ordinance, on the excuse that the construction had to be performed on an emergency basis to save the city from an imminent disaster, of being flooded with sewage. There was no imminent danger of the old sewer main bursting, as can be seen by documents offered to the city commission. This was simply another rush-to-construction project performed in accord with the Mayor Philip Levine’s “Get It Done” mission. Mayor Levine is a wealthy developer and public relations mogul. His public relations program represents him as a sort of messiah come to save the city from global warming.



AFTER THE WOODEN RESPONSE


Decibel levels were decreased by the wooden response to the complaints, but levels were still unacceptable. Imaging that you had to listen to this racket every day of the week for weeks on end.


 



RELATED ARTICLES PRO AND CON

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http://miamimirror.blogspot.com/2016/04/clinton-pal-runs-roughshod-over.html

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http://miamimirror.blogspot.com/2016/04/miami-beach-officials-violate-right-to.html

South Beach Horizontal Drilling Noise Makes Mortal Enemies

http://miamimirror.blogspot.com/2016/04/south-beach-horizontal-drilling-noise.html

The Phenomenal South Beach Sewer Pullback

http://miamimirror.blogspot.com/2016/03/the-phenomenal-south-beach-sewer-pipe.html

The Licensed Marriage of Two South Beach Sewer Pipes

http://miamimirror.blogspot.com/2016/03/welding-interlude-amazing-south-beach.html

Blame the Mud Man

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Reaming and Swabbing the Amazing South Beach Redundant Sewer Tunnel

http://miamimirror.blogspot.com/2016/03/reaming-and-swabbing-amazing-south.html

Interview With Horizontal Drilling Expert John English

http://miamimirror.blogspot.com/2016/03/interview-with-horizontal-drilling.html

Interview With Miami Construction Kingpin David Mancini

http://miamimirror.blogspot.com/2016/03/interview-with-miami-construction.html

The Amazing Drilling of the South Beach Redundant Sewer

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The Virtues of Sycophancy in Legislative Bodies

KRISTEN
Kristen Rosen Gonzalez

 

 

Kristen Rosen Gonzalez
City Commission
CITY OF MIAMI BEACH

14 January 2016

Re: The Virtues of Sycophancy

Commissioner Kristen Rosen Gonzalez:

The gist of the academic essay An Adultery I sent to you, after hearing that you had advocated constructive criticism on the commission instead of inimical personal attacks, was that it is best for critics to paint a better picture than to castigate the one in front of them. I hope you interpreted my offering for its literary sensibility, and not as sexual harassment.

http://miamimirror.blogspot.com/2016/01/constructive-criticism-of-adultery.html

I have today posted in that context an excerpt from my work in progress, Signs of Madness, entitled My Southe Pointe Parke Pscyophancy, the gist of which is that the motive for complaints upon which the progress of our civilization is based are ideals to which reality falls short.

I believe one of your colleagues who is a professional sycophant will appreciate that fact as it has been a good source of income to him.

Our commission has suffered recently from an unwitting bout of malignant narcissism. Even when constructive suggestions are made by persons not subject to that malady, the suggestion is ignored and the person is impugned, called a “yeller and a screamer.”

It is with that in mind that I submit the link below to you and anyone else who may be concerned.

http://miamimirror.blogspot.com/2016/01/my-southe-pointe-pointe-psychophancy.html

Sincerely,

David Arthur Walters

The City of Miami Beach Can Do No Wrong

 

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

 

UNDERLYING SOVEREIGN IMMUNITY IN MIAMI BEACH

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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Miami Beach City Manager Sweeps Dirt Under Rug

MORALES
Typical City Boss

 

NEW CITY MANAGER SWEEPS ALLEGATONS UNDER THE RUG

July 3, 2013

Preface to future moral corruption?

By David Arthur Walters

Miami Beach—New City Manager Jimmy Morales has broken his promise to address the City of Miami Beach Commission in response to fired fire inspector David Weston’s allegations that he was fired on ethics charges trumped up by the city attorney’s office because he persistently complained that millions of dollars of permit fee monies had gone missing.

Weston’s allegations were brought to light earlier this year in a New Times article about alleged corruption in the Miami Beach Fire Department. Weston, referring to a number of arrests of city employees over the years, has alleged that several City of Miami Beach departments are racketeer-influenced, corrupt organizations.

Another so-called RICO allegation was made more recently by former Police Chief Carlos Noriega and two other former police officers along with the current police union president in a class-action suit filed earlier this year and subsequently withdrawn, against the city for an alleged scheme to defraud police officers of workers compensation benefits.

City Manager Jose Smith categorically denied that his office had anything to do with the Weston firing: “My Special Ethics Counsel Jean Olin had no knowledge of his employment with the City and did not take part in the decision to terminate his employment,” he stated in an email.

Smith apparently based his statement on an Oct. 9, 2008, letter Human Resources Director Ramiro Inguanzo sent to Weston, stating that any involvement by Olin would have been improper: “Please be advised that Ms. Olin’s role as Special Counsel to the City would preclude her from discussing matters related to your employment and/or termination from the City. Additionally, Ms. Olin has no knowledge of your employment with the City and did not take part in the decision to terminate your employment.”

However, records easily available to Smith belied his statement. Jean Olin was definitely involved in the ethics determination resulting in Weston’s termination. She was privy to an inquiry by the county ethics commission staff that had cleared Weston of ethics violations, and it appears that the City’s decision was made pursuant to her advice.

Smith and Interim City Manager Kathie Brooks reported to the City Commission on March 13 that Weston was terminated for violating the city and county ethics codes, not mentioning that the county ethics commission had cleared Weston. Smith also said that members of the Fire Department’s chain-of-command said they were unaware of the allegations of misconduct made by Weston.

Weston begged to differ with the Smith & Brooks Report. He filed an extensive rebuttal with city commissioners along with corroborating documentation including a comprehensive file showing his reports of missing monies, replies from senior officials, actual documentation of missing sums, before-and-after Miami-Dade County Ethics Commission rulings, timely annual outside employment reports, memos from the Fire Chief granting him employment waivers, signed evaluations acknowledging his collection of monies, emails mentioning the same, threats to stop holding permits for unpaid balances, and the Miami Dade audit confirming his allegations.

Weston said he had offered to resign when the investigation was ongoing since he would have no trouble finding a better job, but was fired instead, probably because involuntary termination deprives employees of certain benefits. However, his employment status did not entitle him to those benefits. He said he presently sought to have his personnel record changed to reflect a voluntary rather than involuntary termination. He declined to respond to our question as to whether he intended to sue the city and its officers for defamation per se in respect to the ethics charges which he had repudiated in his rebuttal.

Commissioner Michael Gongora forwarded the Smith & Brooks Report and the Weston Rebuttal to Jimmy Morales, who became the new city manager on April 1. On April 16, Morales responded to our belief that he would sweep the matter under the rug.

“Nothing is swept under the rug. I will get to this and report back to you and the Commission accordingly.”

Morales did not respond to our June follow ups, therefore we contacted Weston, who said his rebuttal had been summarily dismissed by the new Human Resources director, Sylvia Crespo-Tabak:

“This is in response to your letter of April 17, 2013,” she wrote, “in which you request that the City revise its records to reflect that your separation in March 2008 was due to a voluntary resignation rather than a dismissal. The City Manager and I have reviewed and discussed the documentation you submitted along with other relevant information. We did not identify anything to indicate that we should make changes to the record, as you requested, or to suggest that this matter was not closed in 2008.”

On June 25 we pointed out to Crespo-Tabak that she had not specifically addressed any of the points made by Weston. We offered that the determination of unethical conduct apparently made on advice of the city attorney’s office was subjective, arbitrary, and at variance with the findings of the county ethics commission. We asked her for the “other relevant information” mentioned in her summary dismissal. She has not responded by press time.

We confronted Morales with the proposition that he had broken his word of honor by not addressing the issues raised by Weston and reporting his finding to the commission as promised. We opined that he had, in fact, brushed the matter under the rug, getting HR to do his dirty work.

“With respect to David Weston’s employment with the City and his termination,” he replied, “I asked the new Human Resources Director to carefully review the file and let me know if she felt that the termination was merited or if there had been any impropriety in the matter. Neither she nor I have any reason to defend what occurred in the past. She conducted her review and discussed it with me. Her conclusion was that the termination was in fact appropriate under the circumstances. I understand that Mr. Weston may not agree, and that you may not be satisfied with the result. Whatever differences you have with the past administration does not mean that everything that occurred in the past was wrong. In my judgment, reversing the past action with respect to Mr. Weston was not warranted.”

Anyone may want to break a promise if keeping it would do more harm than good. Jimmy Morales is a polished politician and bureaucrat, not a business manager, and politicians are not famous for keeping their word. Our professional-city-manager or weak-mayor form of city government supposedly allows the administration to run the city like a business, free of partisan politics. We believe a good business manager should have carefully investigated Weston’s report for administrative inefficiencies and policies detrimental to the business, and, if any were found, recommend and implement necessary remedies. Simply denying that not everything the previous administration did was wrong is either a political excuse or bureaucratic bluff.

In other words, the conduct here portends business as usual. Sacrificing the previous city manager on the altar of discontent was cathartic. We feel good about that, so let us not constructively criticize the new administration until another purification rite is evoked by public clamor. Let us keep our mouths shut until dissatisfaction mounts, until a few more F.B.I. arrests are made, and then we shall clamor for change once again, and crucify the unelected boss who runs the city. The new city manager would do well to regularly advertise his positive accomplishments and keep his resume updated just in case.

Unfortunately, Jimmy Morales, recently dubbed Supermanager for the high expectations had for him, has missed several opportunities in his summary dismissal of the Weston affair, although he is not entirely to blame.

He is losing the opportunity to correct the causes of the negligence and corruption that results in millions of dollars of what Weston called “missing monies.” Law enforcement was keenly interested in Weston’s allegations, but the police could do nothing unless they caught someone in a criminal act and found a willing prosecutor. Weston was not the only one talking about so-called missing monies. Our ‘Getting Ahead of the Job Con’ and other investigations points to the possibility of many millions lost due to favoritism and gross negligence and possibly criminal corruption. It appears that city officials have discretion via the city manager as advised by the city attorney to waive, reduce, mitigate and otherwise not collect fees and fines, their intentional neglect encouraged by sovereign impunity. City Attorney Jose Smith officially determined that a proposal to account for writeoffs by amount and person responsible for them was “moronic.” The only thing he recommended was to “follow the law,” no doubt as interpreted by his office.

Of course the city manager is not the strong mayor that we need. He is just the manager not the political power. If the part-time hydra or many-headed commission does not have the unified will to empower him to make the necessary changes, he will eventually be sacrificed like the last manager for the bad blades of grass in the lawn, not having a press agent to report his good deeds.

Morales is also losing the opportunity to improve personnel policies. He is just a manager, but he could at least recommend that the city commission pass a whistleblower law that would allow a body independent of the city administration, such as the Miami-Dade County Ethics Commission, to investigate and resolve whistleblower complaints. The state whistleblower law provides that local entities can provide such as an alternative to filing complaints in the courts. City of Miami employees, for example, may file whistleblower complaints with the county ethics commission. Morales certainly understands the merits of the Miami-Dade Ethics Commission: He had a hand in its creation when he was on the County Commission, and subsequently pled no contest to an ethics charge brought against him for not providing documentation for $580,081.27 in campaign expenditures, and agreed to pay a stunning $250 fine. The State whistleblower law provides substantial incentives for blowing the whistle.

There should be a device independent of the local chain-of-command and its HR hirelings. As a woman remarked in testimony before Congress recently, making a rape complaint via the chain-of-command is like telling your father that your brother raped you. City of Miami Beach Commission Michael Gongora, now a candidate for mayor, was asked if he would advocate a whistleblower ordinance for the city. He referred the matter to his assistant, and our follow-ups were unanswered at press time. At least he said the issue of whether or not the city should have a strong mayor system should go to the electorate, but not at this time.

Morales could have competent human resource attorneys improve personnel procedures and policies. For example, Weston was an “at-will” employee, meaning that he could have been terminated without cause providing his civil rights were not violated. Instead of just firing Weston or accepting his resignation, the city practically made a federal case out of the whole affair, creating a record that damns the city, opening up the city to potential lawsuit.

We imagine this scenario in Weston’s case: someone said, “Good grief! Weston is in a boat slip business with the guy that owns and runs Permit Doctors. He doesn’t have an investment in the permit expediting company nor is he employed by it, but the fact that a fire inspector is associated with him in a completely different business still looks bad. It creates an appearance of impropriety regardless of what the ethics rules say. Besides, this fire inspector is too pushy, not minding the Fire Department’s business, nosing around the Building Department, complaining it’s not doing its job.

“Basta!> We’ve got to get rid of him.”

The man would have resigned. And he was right about a lot of things, and there was much more that Morales could have recommended and have done if he had carefully studied Weston’s rebuttal along with other information about “missing monies” instead of summarily dismissing it without discussing the issues raised. But it appears from the city manager’s response that it is going to be business as usual around here, perhaps accompanied by a game of musical chairs played by insiders from around the county.

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