Natalie Nichols battles Miami Beach vacation rental law


Arizona Gila Monsters v. Florida Litigation Alligators
October 19, 2018
By David Arthur Walters
Winter is nigh and it is time to plan your family vacation in the Sun. Florida naturally comes to mind because you have been there before or have heard about it and it is easy to get to. A weekend or even a week would be nice in Miami Beach.
Of course you do not want to cram your family into hotel rooms in crowded areas.  No problem, because thousands of homeowners in Florida are willing to rent their homes to guests. So you do some research online, and happen to find an ad by Natalie Nichols.
Natalie says she is willing to share her 3,030 square foot, $1.3 million home with dock and pool on Stillwater Drive, and she has great reviews. It is a good thing you called her early and made arrangements. Yes, she can help arrange for sailing. She wanted $1,000 per night. You finagled a week for $5,000.
The airport was a bit of a hassle, and then there was the traffic, yet it was not so bad compared to the jams you have suffered up north. Besides, it’s a sunny eighty-five degrees. Florida is a pretty place, indeed, and the kids are really excited.
Natalie greets you in front of the house. A police car pulls up as you are taking your luggage inside. A man in black gets out with a notebook and starts to ask you questions, like “How long have you rented this place?” Natalie interrupts him, at which time the muscle-bound cop in blue who has gotten out of the squad car barks at her to get off her property so the man in black can interrogate you.
The black outfit reminds you of pictures taken by your dad of the fascists during the war. Local merchants here call them “the mafia.” Your wife is worried. Your kids look on wide-eyed. “Dad, will they take us to jail?”
“What is going on?” you think. “Maybe Natalie does not own this place? Is she scamming people? Am I going to lose my deposit? No, that cannot be. I checked her and the property out online. She is a licensed real estate agent with good references.”
You cooperate because you have done nothing wrong. You are a stranger in a seemingly strange land, where cops can order people off their own property so they can question your guests even though that is unconstitutional thus contrary to official police policy. Besides, you regularly see videos on television of officers shooting people unnecessarily.
If you had said to the code enforcement officer, or even to the police officer, “I am an invited guest here, and that is all you need to know,” and Natalie had said “I do not have to answer your questions, so call my attorney,” that would have been the end of it if the officer had paid much attention at the police academy.
But no, you are innocent, unaware of what is going on because Natalie did not forewarn you, so you think you don’t need counsel, so you answered the questions. You said yes, you had rented the home, from that woman over there, Natalie, and you even showed the code enforcement officer a copy of the advertisement and the rental agreement, which he duly photographed. He kindly informed you that vacation rentals of dwelling units are not allowed in the residential neighborhood.
The code officer does not mention that the state preempted municipalities from prohibiting vacation rentals of dwelling units and regulating their duration. But the legislation included a negative grandfathering clause, allowing local agencies to disallow the longstanding practice in areas where it was prohibited prior to June 2011 although not enforced there except selectively for years, hence to do so would be inequitable. That would be Natalie’s residential neighborhood, although it was expressly permitted on nearby North Beach. You look on as he cites Natalie for harmlessly exercising her private property rights. He may advise you to get off the premises. 
If the government mafia had its way, Natalie would be fined from $20,000 to $100,000, depending on the number of offenses, and her business shut down for even advertising the property, plus $1,000 for lack of the tax certificate denied to her because the use is not permitted in the first place, plus $500 or imprisonment if the offense is repeated.
Mayor Dan Gelber, a former prosecutor, whose famous father, Seymour Gelber, said city officials had been corrupted for decades by the hotel and tourist industry, would, to add insult to injury, have the fines for the lack of a resort tax certificate ramped up to $3,000 on repetition of the offense, and he would like to see the likes of Natalie jailed if they persist, in effect wringing the necks of the geese that lay golden eggs instead of protecting them, something the real mafia would not do.
What? Is this Totalitaria?   
Members of the jet set may own several homes throughout the world, rent them out for a few months when they are not around, hence say they are “sharing” their homes, while others prefer not to share except with a custodian. Natalie called her rental “home sharing” because she actually lived there when it wss not rented out. You see, she packed a bag and stayed elsewhere until her guests departed. She had another home across the street, was fined $4,500 for advertising vacation rentals there, and sold it for $50,000 less than she bought it for. And then came the crackdown and she had to stop renting.
She still has her home and an old four-plex apartment building down the street, now allowed although newer apartment buildings were zoned out by imposition of single-family residential zoning. Long-term rentals to Floridians on Miami Beach can be a real problem. Her apartment building has been more than problematic, what with tenants trashing it and playing the eviction game, taking her sometimes seven months to get the bad ones out, leaving her at loss greatly exceeding the first and last month security deposit. She maintains that short-term vacation rentals attracts better clientele and lifts values in contrast to the riffraff South Florida landlords are confronted with.     
Home owners have been sharing their homes for decades to vacationers whether they had licenses to do so or not. Look, this is Florida, a swampy state. Everybody does it, everybody knows it, and nobody cares. In theory people who provide the public with lodging are supposed to have a state license. No doubt hundreds if not thousands of small renters do not have one, most of whom are unaware that there is any such state license, and that not having one is a misdemeanor. The politicians are making new laws every day. One day Popeye may show up at the dock and be greeted by the Tax Man and taxed just for being a stranger among other things.
The City of Miami Beach requires renters to have a local business tax receipt. To get it one should in theory be certified to use the property for rentals according to the kind of occupancy permitted by the particular zoning classification. And a resort tax certificate is needed to pay resort taxes on any rentals less than six months.
The city was glad to deposit resort taxes. Did it even bother to check to see if the payers had a state public lodging license?  Did officials carefully check to see if the short-term use is even allowed? No. This is not only Florida; it is South Florida, and, even better, the City of Miami Beach in Miami-Dade County, a lazy subtropical city first made famous by Capone and Lansky for its traditional corruption. 
Top-to-bottom municipal corruption included the non-random discriminatory enforcement of laws. Few code enforcement and law enforcement officers are corrupt, but they all belong to command organizations with directors and chiefs under the thumbs of the political power, the mayor and commission, so do not blame them for their lack of independence when their jobs are at stake for disobedience to the will of the power elite. The same goes for the local magistrate or “special master” who hears appeals of code enforcement cases. S/he is not a real judge, and has often been little more than a stooge. The City of Miami Beach Special Master “court,” which the state allows municipalities to have under the pretense of their being “people’s courts,” is a dependent arm of the ruling clique. Do not believe the pleas in federal court that policies are set higher up by the county state, so the city is not the policymaker hence cannot be responsible as the policymaker. And every official sued seems to have the sovereign immunity of kings from top to bottom, never mind the state and federal waiver of sovereign immunity.
If you are Miami Beach magnate Russell Galbut or his relative, you can throw raucous parties and violate the noise ordinances with impunity in single-family residential areas as well as in South Beach. Just scoff at the code enforcement officer and appeal the fine because the family’s fixer will show up in front of the magistrate and get the case dismissed. What we have here is socialism for the power elite. The Good Old Boys are favored comrades. The rest are shaken down. There is hell to pay for those who did not cooperate or cannot afford to hire fixers. The city’s departments are customarily referred to as RICO operations in arrest warrants and indictments.
Anyway, what went wrong? Nobody cared about how long someone was staying on Miami Beach before. We had plenty of rooms for them, and pretty cheap rooms at that, maybe right on the beach. A day, a week, a winter, twenty years: so what? A Mason and Dixon March 2017 poll in February had 94 percent of 625 registered voters South Floridians in favor of such home-sharing applications. 
One theory for the crackdown on Miami Beach vacation rentals places the cause on the intolerance of former Mayor Phil Levine, a self-made tourism media mogul and real estate developer whose thin-skinned egotism pales only in contrast to The Donald’s. Levine, a “self-made” man whose fortune was made from a close friendship with the wealthy Robins family and from hawking tours on cruise ships, was theoretically personally disturbed where he lived on Sunset Island by parties of three hundred people in rented houses. That, along with his relationship with the hotel industry, presumably fomented his animosity against Airbnb type of operations and anyone else involved in home sharing, including small fry like Natalie. Levine sent out a Trumpian tweet to Airbnb, “MB doesn’t want your selling!!!!”
Thus rankled at home, Levine used his dominance on the dais hence over the administration to crackdown on home sharing citywide. The vestiges of his rule remain on the commission to his day with commissioners who are not about to admit they became his overawed tools.
“King” Levine’s dictatorial manner was duly appreciated by lesser authoritarian types. Carolina Jones, Natalie’s neighborhood association president, was observed posting propaganda favorable to the hotel industry, and urging residents of the neighborhood to complain about short-term rentals even if they had not been bothered by them. Mind you that no statistical analysis was conducted to show a demonstrable link between short-term rentals and noise in single-family residential neighborhoods.
Levine  touted his close friendship with the Clintons, and spent millions out of pocket to seat himself and enough commissioners to render himself a de facto strong mayor in a city with a weak mayor charter. He was scandalized for selling the city to developers. His “Get It Done” right or wrong projects included personally enriching himself and his partner Scott Robins in the Sunset Harbour district. The city paid them $13 million for the air rights for a city garage over their shopping center at taxpayer expense. Millions were expended on raising the roads around the shopping center. The newly raised streets may have to be torn up to replace the crumbling century-old sewer system as a result of the expected increase of demand on that system due to development in the area. Jay Fink, the assistant director of public works, who is unable to produce an engineers’ certification for the sewers says, well, some cameras looked into the pipe and all was well, and we are doing an excellent job. Residents, however, say that is contrary to what was seen from above with the naked eye. However that may be, the partners bailed out of Sunset for $69 million before Levine ran for governor.  
In sum, Levine left Miami Beach, hopefully his stepping stone to the governorship and the White House, in shambles. The electorate got wise and his campaign was resoundingly defeated, temporarily deflating his ego to such an extent that he must be having difficulty re-inflating it even although narcissism is theoretically overcompensation for feelings of inferiority.
Selective enforcement is obvious in Miami Beach. The Miami Herald, the daily newspaper that championed Levine all along, does not cover discriminatory enforcement and the like because it serves as the propaganda organ or booster sheet for the ruling elite, its “authoritative news source,” at least until someone is arrested, and, pending that, it claims it was unaware of what was going on despite the floods of letters to the editor and reporters.
Natalie Nichols was blindsided for advertising a house, but not Mayor Levine’s pal and partner Scott Robins when he was advertising and renting out his unpermitted hotel on Espanola Way with inadequate fire sprinklers to tourists.  City officials including code enforcement brass were presented with multiple advertisements offering the hotel, which had been cited by the state but continued to operate. Code enforcement declined to act immediately, saying it was difficult to collect evidence of short term activity although they also had photos of tourists arriving with bags. It was finally cited after continuous pressure was put on officials. Robins took the case to the magistrate. Everything was eventually forgiven including several years of resort taxes and unpaid permitting fees for extensive unpermitted renovations for which there should have been double-permit fee fines. County appraisers were interested in the renovations because it was a unique building and the increased value might affect its taxes, and at that time Robins was pleading for a downward adjustment. Photographs of the renovations appeared in the advertisements.
Poor Natalie! She does not qualify for special treatment.
Mayor Levine knew all about Espanola Suites. And the mayor and code enforcement officers and the city attorney knew all about Rod Eisenberg’s historic Sadigo Apartment Hotel in the Collins Park neighborhood a few blocks away.  He had been giving the city a bad time from time to time for its discriminatory policies and negligence since the 90s. The legal mafia finally came down like gang busters on his three-story historic building although transient apartment rentals are zoned into his neighborhood, and his engineer said the structure was the safest in the area although it did not have fire sprinklers. Indeed, vacated and unmaintained buildings nearby, held for investment by developers friendly with city officials, were not secured by the city for years despite complaints from neighbors including Eisenberg. A vagrant firebug gleefully set some of them afire. Poor Eisenberg, who has spent hundreds of thousands of hard-earned dollars on lawyers, religiously believes Justice is nigh, and, like a fool, he thinks Justice will come in a courtroom despite the advice of a chief inspector, who wound up in prison for taking bribes, that he could not solve his kind of problem with the Sadigo in courts of law.     
A notorious case of party noise in a residential neighborhood involved the racket made at a ‘Great Gatsby’ party thrown in a residential mansion by Keith Menin, a relative of Russell Galbut, a mogul whose licensed hotels in hotel districts are resented by neighbors for their noise, which is regulated. When cited, Galbut &Co has its fixer go to the magistrate and get the cases dismissed. At Menin’s residential party, the code officer was addressed contemptuously; sure enough, the magistrate dismissed the case. The Good Old Boys are above the law or have purchased laws that legalize their misconduct.
Levine’s vanity made him a great scapegoat. Robins wisely keeps a low profile. Galbut’s power over politicians and vast swaths of prime real estate gets him cast as a local devil if not Satan himself. They are too blame for some development issues, yet there are economic and demographic factors at play, not only in Miami Beach but nationwide, the exception for Miami Beach being that it has always had a large population of transients running from the cold and sometimes the law. The population has exploded and there are more rich people to go around. More and more middleclass people are travelling. Real estate values rise with the demand for vacation homes; regular folk including the elderly are pushed out of their neighborhoods into ghettos.
Moreover, residents, particularly elderly residents, do not like having so many strangers around, especially when they make noise. Indeed, humans have an innate fear of strangers when they come too close; for much of human history, a man would as soon kill a stranger than look at him, and for good reasons. It should be no mystery to anthropologists why Ötzi the prototypical Copper Age ice man from Tuscany, whose corpse was found preserved up in the Alpines, was killed by locals: He was a stranger encroaching on their fat.

I have lived in dense tourist areas. I like tourists because they are generally in a better mood than locals. Yet what settled folk suffer, it is said, is “Tourist Pollution.”

So how does it feel to be a pollutant? Well, residents actually love your tax contributions provided that you stay in a hotel in the hotel district. And the hotel industry loves you even the more, and politicians do love hotel lobbyists. Wherefore let us raise fines for unauthorized transient rentals so high that renters will be driven out of business.

John Alemán, a wealthy Miami Beach Commissioner, excused the fines running from $20,000 to $100,000 as necessary because, she reportedly said, a beachside mansion might be let out for thousands of dollars per night, so lower fines would be a cost of doing business for some operators. Wherefore the penalty is reasonable. After all, people come to Miami Beach to party, to get drunk and make a racket, in other words, to cause a nuisance, as far as some residents are concerned. The government has a legitimate interest in curbing public nuisances, or so she adamantly thinks.
“Some” is the key word here. Perhaps John Alemán or her friends could get several thousand dollars a night letting out their fabulous mansions in a few choice spots to rich and famous visitors. An allegedly morally corrupt city attorney for Miami Beach has secretly allowed such a place to operate like a hotel providing nobody complains while small business entrepreneurs like Natalie are persecuted. A luxury vacation rental company called Villazo LLC was cited twice for running a private hotel operation on Palm Island. They fought the charges until 2015; city attorneys forged a secret deal that allowed them to continue. Real estate agent Gregory Mirmelli filed a complaint against the city for withholding the records on the deal and for its selective enforcement.
Natalie charged $1,000 a night for her 3,080 sq. ft. home on the water, yielding her around $20,000 per month on the average. Take away $10,000 per month for mortgage, taxes, insurance, and the cost for staying elsewhere, and that left her $10,000 profit before maintenance and depreciation of the structure. She had another home across the street, so double that during good times.
The hype in the expensive seminars is true, that is, if you are lucky, work hard, and enjoy the hassle, there is plenty of money to be made in buying, fixing up, renting, and selling homes. Of course timing can be the key to rental income and capital gains. We were Ground Zero for the Great Recession, and real estate values plummeted. Natalie persevered and managed to bail out of one home for $50,000 less than what she paid for it after the official harassment began in her neighborhood. She apparently struggles to keep the one she lives in. Without the rental revenue, she must cough up around $9,000 a month to pay the mortgage, taxes, insurance and maintenance.  She had an opportunity to sell it for a gain at one time, but she kept it because she thought she would need it to house her aging father before he went to the Better Place.  
Again, do transient rentals to vacationers increase nuisances such as noise in neighborhoods? That depends on the class of renters and the neighborhood, which might actually be improved by vacation rentals that tend to raise values and “drive out the riffraff.” Public records do not reveal noise complaints from Natalie’s neighbors. Since the city’s “mafia” started patrolling Stillwater Drive to harass unwitting vacationers carrying suitcases, owners are selling out, long term rents have fallen, and the quality of life has deteriorated accordingly as the neighborhood is becoming virtually ghettoized. 
Natalie argues that, if law enforcement would do its job, the public nuisances would diminish, and it is unfair to ban short-term rentals. She has a good point. Law enforcement finally did its job in Flamingo Park and elsewhere as the last wave of corruption crested. Landlords proceeded to jack up the rents. Carpetbag developers are redeveloping whole blocks of deserted buildings. The worst nuisances in the “chic” South Beach area have been the apartment and condominium buildings inhabited by undocumented migrant workers, remnants of the Mariela Exodus, welfare recipients, and itinerant dope dealers, for who knows how long. The nuisances included noise, rapes, muggings, shootings, and stabbings.
I almost became a “conservative” after being outraged at all hours while trying to get up at 6 AM to make an honest living. Noise can be torture to humans. A man in one town asked neighbors twice to quiet down, and they did not. He called the police, and they did not show. So he shot three people at the party. An official said that act was “abominable, reprehensible.” Another called him “an animal,” which was true because humans are rational animals with a long history of transience as hunter gatherers before they settled down. Animals will flee or fight when disturbed. Most of us civilized folk prefer to stay put and call the police. We feel we have a right to quiet enjoyment of the premises, so all hell may break out if the police do not show up.
Cash in hand was often sufficient background for South Beach rentals. That is what David Muhlrad, a prominent landlord, the city’s first code enforcement chief, relative of Russell Galbut, wanted when I arrived in South Beach—he said he could tell by my looks that I was good. I moved when the apartment building was converted to the Regent Hotel.
Some advertisements even trumpeted that no background checks were required. The lease might say six months and a day at so much a month, but that was not the real term, and no resort tax was paid, nor income taxes in many cases. Besides, many of the nuisances were created by long term inhabitants who stayed as long as they could get away with their normal misbehavior.   
One studio in a four-building apartment complex I moved into was used by two enterprising prostitutes to run a gambling den that served hotel and restaurant workers from 2 AM until noon, as tricks were turned in a car, outfitted with blankets and pillows and bearing a temporary license plate in the alley. Crack was available on demand as well as cases of beer. The studio upstairs was used as a drop for stolen goods and as a party den by a gang of teenagers. Next door was a dope dealer who was a master of disguises, so crazed by crack that he tried to wash the buildings down with a hose in the middle of the night, then went over to the police station and threw a bag of cocaine into the air. Another tenant in that four-studio building was down from Tampa working for Gotti’s son, running an illegal nightclub and selling weed. The police actually apologized when they were called and actually showed up. The landlord from Cuba, whose son was a county attorney, said apples would cost $5 if illegal aliens were banned. I refused to move because the issue was endemic to much of South Beach. Only the superrich in the towers managed to “keep the riffraff out.”
City officials were not unaware of those activities, and some profited from them. Jorge Gonzalez, the city manager, said there was corruption on the commission; he took steps to curb corruption: he was immediately terminated by the commission, paving the way for Phil Levine. There is no way of knowing how much short-term rentals contributed to the nuisances other than rising rents and property values, which is not a nuisance to people who can afford it.
I lived in a city where landlords downtown were required to submit lease information to the police department, not to curb short term rentals but to apprehend wanted criminals. Cages were erected periodically in the parking lot to hold prisoners as the police went from door to door arresting wanted people. Perhaps the city should collect lease information to determine the duration of rents as well as to apprehend wanted people. But some Miami Beach landlords do not require identification and prefer cash, so who can prove what their lease terms are?
Short-term rentals were eventually prohibited in the Flamingo Neighborhood apartment buildings, except for very few where the practice was grandfathered in by friendly commissioners, but the practice continues illegally. Still today tourists with suitcases can be seen entering the apartment buildings, often behind a real estate agent as their guide. The rule of thumb in Miami Beach has always been selective enforcement. The higher the fine, the greater the incentive for corruption.  
One unlicensed rental agent in Natalie’s area bragged that he paid off the code enforcement officers. If true that would hardly be surprising. Again and again, Miami Beach officials seem to have a tradition of being corrupted in one way or another, with waves of corruption mounting between FBI busts.
The FBI wanted to wire Natalie to sting a public works official who allegedly solicited bribes to expedite sewer work, but her lawyer advised her not to do it, and to pay him a fee, instead, to resolve her issue with the sewer line.
Well, there are always a few bad apples in every government, or so it is said, and we know the adage about the scum at the top. In fact, studies show that the bulk of corruption public and private is perpetrated by trusted managers and executives who have been around their organizations for some time. Former City Manager Jorge Gonzalez was blamed by “reformers” for the corruption. He claimed some of it was on the commission in the form of commissioners who served as fixers. Even the city attorney office has been suspected of aiding and abetting the corruption of its client, the ruling elite, as a sort of criminal defense lawyer for the commission.
Natalie must be out a million dollars in revenue since she was blindsided by the ordinance prohibiting vacation rentals in her neighborhood. She did not see it coming in Stillwater Drive.
When a 2010 ordinance was passed to prohibit short-term rentals in the Flamingo Park and Espanola Way residential neighborhood, few people were aware of what was coming. Tammy R. Tibbs, the operator of four apartment buildings in Flamingo, however, was made aware of the change. A grandfathering clause was written into the original ordinance to give him six months to get those buildings grandfathered if certain conditions were met, and of course he complied. A building at 751 Meridian Avenue was not on the grandfathering list. The owner, Playa de Oro, had its lawyer, Simon Ferro, a prominent zoning and government relation lawyer, and President Clinton’s former ambassador to Panama, get ahold of the city attorney, claiming that an error by the state prevented his client’s building from making the short list. Ad hoc legislation was arranged for that building.  Another owner claimed he had improper notice, but his petition was denied. Someday a diligent attorney may want to make a public record request for the list and examine the process to see if the Flamingo Park and Espanola Way neighborhoods were favored over Natalie’s neighborhood and why.
Natalie scoured the code when she got into hot water, but she could not find a restriction limiting occupation to more than six months and a day. She had been renting short term for years. And then the restriction magically appeared when she looked again. That is probably because the code is updated quarterly. Until then people were supposed subscribe to and scour the Miami Herald for notices of hearings, and then check back to see if an ordinance that interests them was passed into law. And when there was a crackdown on sidewalk cafes, flyers were handed out, and that was supposed to constitute sufficient notice. Agenda notices are emailed out without specifications, so you must take time off from work and martinis to scour the agendas.  If you do not have your nose in the rear end of city hall, you will lose track, even if you take the continuing education real estate courses.  Before the advent of the Levine Regime, all one had to do was enter key search terms in the universal search engine called “the fishbowl” to pull up links to everything including ordinances, as we do with Google search. Not anymore, not since “transparency” was improved and the software upgraded.
Pleas to make ordinances effective only when they are published online in the code, except for emergency legislation, have fallen on deaf ears. The city attorney, the mayor, the commissioners do not care about the inconvenience and efficiency because they do not have to care; after all, the city clerk and city attorney say it’s all perfectly legal.
We would be better off living in ancient Rome if we wanted to know the basic law. We could walk over to the civic center and find it inscribed on the stone.
City Clerk Rafael Granado, Esq. insists that notices of hearings satisfy the statutory requirements for notice of hearing. That may well be, but those notices do not satisfy the maxim maximus that, “An enactment that regulates persons or property and imposes a fine for violations must be a printed law and citizens must have notice that it is in effect before they can be subjected to regulation and fines.” To wit, the public must have notice not only of the possibility that prospective legislation is to be considered, but must also have notice that legislation under consideration was passed into law.
Alas, overall bad management, bad politics, bad distribution of power. As Hotelier Trump, who might have Natalie over to Mar-A-Lago to discuss this free enterprise issue, would tweet: BAD!!!
Miami Beach real estate looks like it is going to implode again, and that is not good for Natalie’s real estate sales business. The fear of flooding and Zika mosquitoes, and the recent crackdown on money laundering that involves a big chunk of the local market, has been dampening sales and hurting prices. I noticed on the Web that she sold a home recently. Great, yet it is not easy to get rich off commissions and an ancient four-plex apartment building. Maybe she will return to the medical industry with her entrepreneurial dream in shambles.
Lo and Behold! A knight in shining armor, the Goldwater Institute (1), has appeared to represent our lovely lady in distress in a suit against the City of Miami Beach. Sadly, there is nothing in it for her, unless the law is repealed and she still has a home to rent, except the satisfaction of helping others in like circumstances before it is too late for them too.  She will not recover from this suit the damages she suffered because the lawyers are unwilling to sue for damages. And hardly anyone wants to be in a class fighting city hall at this point.
Natalie is the poster girl for this nonprofit organization, founded to perpetuate the principles of the late Barry Goldwater. (2) The Complaint identifies her two remaining properties, her home and the four-plex apartment, as “Prototypical Miami Beach Short-term Rentals.” Vacation home rentals and transient apartment building transient rentals are, by state definition, birds of a different feather. The state preempted prohibition of vacation rentals after June 1, 2011, except where they were already prohibited as in her zone. Perhaps she could convert the apartment building to a condominium if the suit is won, and rent out each home. One day she might own over a thousand units and block them with Airbnb or its competitor. There would be nothing wrong with that except from the perspective of nearby hotels.
Better yet, why not rewrite the public lodging law for all categories to recognize the right of property owners to rent their premises for less than six months and a day provided certain equitable conditions are met? And fiercely enforce quality of life ordinances.
The fundamental abstract principle of Goldwater should be individual liberty as demonstrated in the progress of civilization and the liberal foundations of the United States of America. Of course there is considerable disagreement among people as to what that they should be liberated from and what liberties should therefore be conserved. In any case, free individuals should have a right to privacy and the right to make a living. To be themselves, they must not be alienated from the essential product of their labor, their private property.
Natalie Nichols’ property, claims the Goldwater Institute, is “prototypical.” It represents private property everywhere in the allegedly free world. It has been infringed on by government. She has a sacred right to do with it as she pleases provided she does no harm to others. As a matter of fact, she had not a single nuisance complaint from her neighbors. So her right, although it may seem rather moot now as a lost cause in the past, is everybody’s right, and is presently asserted in the circuit court Complaint brought by the Goldwater Institute (3), with a hearing scheduled for the end of October 2018.
Goldwater is bringing in its top guns. The Arizona carpetbaggers will be up against experienced local alligators in South Florida’s litigation swampland: Mssrs. Raul Aguila, Alexsander Boksner, and Carlton Fields Jordan& Burt.
More lies are told in Florida courts than anywhere else, and then under oath. Florida lawyers have naturally been exposed for lying in court as well, even forging citations to suit their needs among other unethical deeds including criminal fraud and embezzlement of trust funds. It would not surprise anyone if the malpractice were widespread since some of the lawyers exposed were considered to be the most upright lawyers in the state. Of course money is sacred to the integrated Florida Bar, the disciplinary arm of the state Supreme Court, so theft of client funds is likely to get a lawyer disbarred. Otherwise nothing or little is done but a slap on the wrist. The mission of the Florida Bar is more to protect the trade than to discipline it. (3)
In any case, the fly-by-night Arizona Goldwater litigators representing Natalie are formidable right-winged foes for the left-handed Florida swampland cavilers.   
“Matt Miller” Goldwater advertises, “is a Senior Attorney at the Goldwater Institute, where he leads the Institute’s free-speech litigation efforts. Before joining Goldwater, he served 9 years as the Managing Attorney of the Institute for Justice’s Texas Office, which he opened in 2008. There, he won important victories for free speech and economic liberty. Prior to that, he worked as a land-use attorney at a large Dallas law firm. Matt’s cases have been featured in the Wall Street Journal, Washington Post, Associated Press, Reuters, Dallas Morning News, and other outlets nationwide. Matt has testified by invitation on numerous occasions before state legislatures on many topics. In 2009, he led the effort to reform the Texas Constitution to better strengthen protections for private property owners.”
“Christina Sandefur,” Goldwater states, “is Executive Vice President at the Goldwater Institute. She also develops policies and litigates cases advancing healthcare freedom, free enterprise, private property rights, free speech, and taxpayer rights. Christina has won important victories for property rights in Arizona and works nationally to promote the Institute’s Private Property Rights Protection Act, a state-level reform that requires government to pay owners when regulations destroy property rights and reduce property values. She is also a co-drafter of the 40-state Right to Try initiative, now federal law, which protects terminally ill patients’ right to try safe investigational treatments that have been prescribed by their physician but are not yet FDA approved for market. Christina is the co-author of the book Cornerstone of Liberty: Private Property Rights in 21st Century America (2016). She is a frequent guest on national television and radio programs, has provided expert legal testimony to various legislative committees, and is a frequent speaker at conferences. She is a graduate of Michigan State University College of Law and Hillsdale College.”
Fort Lauderdale lawyers Joseph S. Van de Bogart and Katherine Van de Bogart of Van de Bogart Law will keep the Arizona lawyer in line with Florida customs.
The Goldwater suit would like to do away with the “home sharing” prohibition altogether on constitutional grounds. Yet Goldwater counsel must not have absolute confidence in that happening since it emphasizes in another count that the fines of $20,000 to $100,000 are excessive in comparison to a supposedly more reasonable state limitation on all types of local code violations, in Chapter 162 of the Statutes of Florida, of from $1,000 a day for the first offense and $5,000 every day for each repeated offense.
Apparently the Goldwater lawyers have not read the provision of the statute that allows any other means for enforcing codes: “162.13 Provisions of act supplemental.—It is the legislative intent of ss. 162.01-162.12 to provide an additional or supplemental means of obtaining compliance with local codes. Nothing contained in ss. 162.01-162.12 shall prohibit a local governing body from enforcing its codes by any other means.”
The excessive-fine strategy either betrays the misunderstanding of the lawyers or reveals the income class Goldwater prefers, and that is apparently not homeowners who occasionally use realtors or rent their homes themselves to supplement their income. Vacationers can now rent a modest two-bedroom home in Miami Beach for $200 a night. Midrange would be $1,000 a night for a large home on the Bay with a pool like Natalie’s home, or one that could house quite a few people. Luxury mansions go for $10,000 or more a night.
Fines of $5,000 per day might not deter persons who own and/or advertise multiple homes and engage in huge operations that allow them write off the cost of the fines since enforcement cannot keep up with all the violations. But the fines will definitely deter others, especially the small fry who are really sharing their home instead of running vast rental operations. Furthermore, we leave it to the lawyers to discover how renters can avoid criminal misdemeanor charges for the violations that are cited.
People rich and poor should have a right to make a living of their own choosing in a free country if that does not unduly infringe on the right of others to do the same. Perhaps Goldwater Institute or someone else should take this major question up with the federal government in federal court, perhaps invest a million dollars to take it all the way to the top if need be to see how the conservative majority feels about it.
Since 94% Floridians approve of short-term vacation rentals, and two-thirds approve of transient rentals of all types, and that piece of the pie is so large, one would expect a great public clamor over the spread of the creeping bureaucracy that enhances the monopolies of the power elite. Yes, Airbnb is lobbying for vacation rentals for its own sake. Small rentiers would benefit. Where is the class action lawsuit? Why are not the rentiers coming out of the woodwork, like Natalie, to raise hell about the irrational infringement of their private property rights? Where are the interveners in the lawsuits?
Why? Because many of them are still doing it and do not want to expose themselves to retaliation. After all, retaliation, the most primitive practice of justice, is still the rule in Miami Beach. It does not pay to fight city hall when city hall is at the beck and call of the hotel industry and other major industrial segments of its economy. Believe it or not, people who have spoken in favor of vacation rentals on Facebook have been placed under surveillance and interrogated.
Finally, Florida, especially South Florida, is not a place where people come to cooperate or to join or intervene in other people’s lawsuits. They cannot see that there is a common element in their respective beefs, the violation of their civil rights.  As Christina Sandefur’s husband Timothy posted in his April 21, 2005, Freeespace under ‘The all consuming hatred of man’:
 “The evils of the modern age—as well as of the ancient times—have come about because of the assault on the individual; because of the notion that people do not matter, and that they owe their lives to the service of others. The principle of the gulag is the principle that the individual belongs to the state and that the state has the right to do with them what it pleases.”
He repeats what he had said many times before, that the notion that we should give up our notions as individuals and become cogs in the social machine “is the defining trait of conservatism” in the context of archaic patriarchal rights. Wherefore it appears in 2005 that he would conserve the principle of individual freedom and therefore its basis in private property.
Well, many South Floridians, familiar with repressive regimes, are staunch individualists who normally resent government encroachment on their persons and property. What we have here now is creeping alligator socialism. It can outrun you if you get too close to the water, and will drag you in before you know it.  Act accordingly. 
(1) The Goldwater Institute has championed, among other rights, the right to choose charter schools, education vouchers, and experimental drugs; the right to use heavy machinery in environmentally sensitive areas; the right to separate orphaned Native American children from their tribal culture; the right of corporations to contribute to political candidates; the right to make hateful speeches anywhere on college campuses; the right to pay tipped, young, and temporary workers less than the minimum wage; the right not to pay police officers for overtime; the right of minors to smoke electric cigarettes; the right not to give veterans employment preferences; the right not to teach CPR in schools; the right not to expand Medicaid expansion under Obamacare; the right to be free from greenhouse gas emission regulation;  the right of lawyers  to speak harmfully, in a way that manifests bias or prejudice towards others. And now, in Miami Beach, the right fought for is the sacred right to rent homes for less than six months, and, if that is not granted by the court, the right to be free from fines so high that a profit after paying the fines is rendered impossible.
(2) Old folks remember Goldwater well. He was trounced by Johnson 486 to 52 electoral votes in 1964 in the most dismal showing of a major party in history, yet his extremism inflamed the alarming hatred and passion of his Southern base and advanced the “popular” strains of conservatism of Presidents Reagan and Trump. He was not a bigot himself, as even Martin Luther King observed, at least not openly, but he favored segregation and he opposed the Civil Rights Act of 1964 because, for one thing, it would to lead to quotas. A tiny minority of blacks voted for him, so it was said they must have been ignorant or illiterate. He championed the Forgotten American, “that dragooned and ignored individual who is either outside the organized pressure groups or who finds himself represented by organizations with whose policies he disagrees either in whole or in part.”  He was a Jewish Episcopalian popular among all sorts of disgruntled factions, including but not limited to Christians and the Klan. He believed it right to be extreme if the cause was righteous, although people disagree on what is right and are even willing to die for it. He thought military field commanders had authority to nuke enemies without a presidential order. The United States government should not interfere with the liberties of its own citizens, he said, but has a perfect right to interfere in the affairs of nations whose interests are incompatible with its own.
Goldwater may likened to the latest version of Trump, which changes from day to day, although Goldwater was not such a loose cannon and was keen on protecting the environment. He like Trump was declared insane by armchair psychiatrists, but he sued and won damages for defamation of his character.  He hated communism and said socialism was a social disease. What he called conservatism was mandatory in the face of the totalitarian menace if the United States with its “true religion” Judeo-Christian heritage was to remain the leader of antislavery forces in the world.
Creeping socialism, you see, eats up private capital as the government encroaches on and takes over activities, destroying incentives. Social security and other welfare programs are best gotten rid of. Small business entrepreneurs like Natalie are being ruined by socialist creeps, and the nation will be consequently impoverished. Perhaps in the end everyone will be gray and wind up with the mere 100 square feet of living space Lenin dreamed of for the USSR.
The bone of contention or the bottom line is obviously property. Real estate is said to be the basis of all wealth. Private ownership of property, starting with one’s own body, is the very cornerstone of freedom. Yes, there is a spiritual underground, but that is chaos, as was famously discovered when the cornerstone of the temple was raised and a man descended into the abyss below it.
Freedom and justice require order, and the right order, which is a “just order under God,” is based on property rights. Let the government keep its hands off our property. Government, said Goldwater, should be concerned with the things that are its proper province, such as defense of the country and the administration of justice. Government should not try to do things which are better done by individuals or voluntary associations.
City Attorneys Raul Aguila & Alexsander Boksner, Developer Rod Eisenberg

(3) Rod Eisenberg, a small businessman who owned the historic Sadigo Apartment Hotel on South Beach, testified before the City Commission that a city attorney defending the city against his civil rights suit suborned the perjury of material witness in order to get his case dismissed and obtain $600,000 in sanctions for assertions his lawyers made. Eisenberg’s guests in for an art show were tossed onto the street with their bags and he was arrested and jailed at the behest of the chief deputy city attorney, Alexsander Boksner, because Eisenberg was accommodating them at the Sadigo. He submitted a deposition of the material witness, a code enforcement inspector, under penalty of felony backed by a polygraph test to the mayor and commissioners and city manager, most of whom are lawyers, showing probable cause that the deputy city attorney may have committed a federal felony. And it would be a federal felony for those who had that knowledge to conspire to obstruct justice by not reporting it to law enforcement and the Florida Bar. Neither Boksner nor other knowledgeable officials responded to my inquiries about Eisenberg’s allegations. The Florida Bar had the information, said no file would be opened, and the district attorney was not responsive at all.
Eisenberg has most recently filed an independent action in federal court for recovery of the sanctions, and has alleged in his brief that the city attorneys frequently lied about transient rental laws. He will probably have to go higher than that, far away from South Florida, to obtain justice. Local, state, and federal are one ball of wax here.


The Wooden Government of Miami Beach




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:


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.


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.



Clinton Pal Runs Roughshod Over Miami Beach

Miami Beach Officials Violate Civil Right to Freedom from Noise

South Beach Horizontal Drilling Noise Makes Mortal Enemies

The Phenomenal South Beach Sewer Pullback

The Licensed Marriage of Two South Beach Sewer Pipes

Blame the Mud Man

Reaming and Swabbing the Amazing South Beach Redundant Sewer Tunnel

Interview With Horizontal Drilling Expert John English

Interview With Miami Construction Kingpin David Mancini

The Amazing Drilling of the South Beach Redundant Sewer

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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Silver Sneakers Snubs South Beach Seniors





Crunch Fitness Members Left in Lurch

Thanksgiving Day 2015

By David Arthur Walters


Shareholders can thank Healthways Silver Sneakers for dropping Crunch Fitness, the only affordable, full-service health club on South Beach, from its list of gyms available to Medicare Advantage insureds, and for attempting to deceive the hapless seniors into believing a comparable benefit would be conveniently provided.

Crunch Fitness South Beach participants were notified of the change by an undated propaganda letter shortly before Thanksgiving Day, less than two weeks before the end of the annual Medicare Advantage enrollment period.

The propaganda implied that Crunch is at fault for “no longer participating in the program,” and invited dumped seniors to enroll somewhere else “as we seek another location that will be convenient to you.” Crunch Fitness did not respond by deadline to requests for an explanation.

For seniors, many of whom are economically challenged, and who may not have a car, “somewhere else” means transportation expenses of about $5 a day, more than an hour’s drive or two hours a day on the county’s pathetic bus system.

And there will be no comparable, convenient location in South Beach as long as the tradition of pushing seniors and the working poor off the beach continues, to make way for luxury developments in accord with the political-economic program that Mayor Philip Levine, a wealthy developer, rightly called “relentless for progress” when soliciting funds from developers for a political action committee lauding him.

Crunch Fitness South Beach is the low-priced gym in South Miami Beach, at $87 per month after raising its fee this year by $3. A confidential source within the organization said it would probably gladly accept $40 from Silver Sneakers for seniors as a public service.

The only alternative full service gym on South Beach, Equinox Fitness, charges more than double Crunch’s monthly fee. Given the nature of its business, it is high improbable that Equinox would reach out with affordable fees to economically challenged persons.

David Barton’s upscale club folded on the second bankruptcy. Gold’s became South Beach Active, then folded. The problem is exorbitant real estate values fueled by surplus capital relentlessly seeking profits, cheap and often laundered money, and morally if not criminally corrupt politicians. The result has been to push working class people and retired seniors on low fixed incomes off the beach.

A Healthways propagandist refused to disclose the nature of the disagreement with Crunch because that sort of information is “proprietary.”

The proprietors certainly are not its Silver Sneakers members, who have no rights whatsoever, and must accept whatever intermediary their insurance company selects for them.

Indeed, Healthways, calling itself a “well being” management company, serves the interest of insurance companies, employers, and governments, an interest obviously superior to the well being of the ultimate consumers: the insureds, employees, and taxpayers who are not even referred to as customers in the corporate literature posted on the Internet.

And the main interest of the organization appears to be superior even to the interests of shareholders; that is, the interests of its highly paid executives. The firm, with $742 million in revenue in fiscal 2014, laid out $4.4 million dollars in the third quarter this year to get rid of its former president and CEO, and then laid 68,531 shares, today valued at $872,000, of restricted stock (HWAY) on its new president and CEO as a supposed incentive. Hedrick Smith’s national bestseller (Who Stole the American Dream?) contradicts the notion that stock incentives actually produce stellar results, except to executives. It is more than likely that public relations propaganda about expectations for the company under new management as well as the general market hype will at one time or another elevate the successor’s stock holdings regardless of his personal performance.

This badly managed health care management company has lost tens of millions of dollars, and expects twenty-five more millions to be lost in the fourth quarter for restructuring charges intended to align the interests of management with the shareholders’ interests in profits. Operations will be “decentralized” despite its current blindness to local consumer needs. Costs will be “rationalized” in order to “lower health related costs,” which probably explains why Silver Sneaker “members” with Crunch Fitness are getting the shaft on South Beach.

The total loss will exceed its retained earnings, as it gives away shares to officers pursuant to the fallacy that, by tying their interest to that of shareholders, they will have an incentive to improve performance. Will they ever learn? Well, executives have learned to line their pockets at shareholder expense despite earnings performance. Share values rise and fall with expectations. The herd has a short memory.

By the way, the third quarter loss did not include a $20 million investment loss in a joint venture with Gallup, with which Healthways partnered for 25 years in an endeavor to track and manipulate human behavior. They created the so-called Well-Being Index in 2012. The public is randomly polled with 10 questions appertaining to 5 elements, physical health being the last element on the list published on the Internet.

Physical health is the main reason people join fitness centers. Regular exercise in full-service fitness clubs reduces health care expenses. Badly managed health care management is bound to add to the cost of health care. It very well may be that private health care management intermediaries like Healthways, whose interests are aligned more with executives and shareholders than with the health of the ultimate beneficiaries, actually cost more than they are expected to save.

The choice of a convenient fitness center should be left to the consumer. The consumer should be issued the insurance company’s electronic voucher for a flat amount, determined by the average rate charged in the locality for that type of facility, to be applied to the chosen club’s monthly charge. The difference, if any, would be paid by the fitness center member. Fitness centers would be certified by an independent nonprofit entity.

In the interim, Crunch Fitness, a brand that harkens back to the good old days, would profit in several ways by offering a special senior rate to locals. The potential local market for that service is about $160,000 per month in additional revenue at $40 per senior. Seniors generally attend during off hours.

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Atma Beauty’s Spectacular South Beach Opening

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21 November 2015

By David Arthur Walters


“Know that all beautiful, glorious and mighty creations spring from but a spark of my splendor.” 10.41 Bhagavad Gita

I had no idea of the beauty I would behold when a Manhattan brand manager emailed me an invitation to Atma Beauty’s grand opening in Sunset Harbour, with his note that it would be fun for me to attend.

Music, vodka, hors d’oeuvres, beauty, models, photography, and atma were the key words. And what a unique combination they are at Atma Beauty, situated in Sunset Harbour at 1875 West Avenue.

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As for the vodka, the brand was Sobieski, introduced in Poland in 1864, and it was as smooth as can be, so smooth that Russian tasters get blind drunk and extol its spiritual virtues. It took me a full day to recover.

I was greeted by the owner, Ana Lessa, a Brazilian American beauty entrepreneur and cosmetologist with her very own magic formula.

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The space is cavernous, with lofty ceilings, several big rooms to accommodate the spa and the beauty and hair wash stations, a loft for the photographer, and a balcony where I was told a barber shop for men will be situated.

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Ana’s husband was standing by with watchful eye as their twins gallivanted around the rooms. I observed that remodeling the space had taken a lot of hard work. She agreed, and said her toe had been hurt when a box fell on it.

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I felt a little self-conscious since only a dozen people were around when I showed up. You guessed it: I did not wait the mandatory thirty minutes after the opening hour to show up.

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Ana’s colleague, Fabiola Trujillo of Sobe Tan adopted me for a few minutes. She told me she went into the airbrush tan business after being diagnosed with skin cancer. I explained that I was a stranger to fashion, and thought the young ladies arriving were lovely, yet I wondered if they dressed so oddly everywhere. She explained that South Beach has its own look.

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The place was soon packed with beautiful women. I imagined for a moment that I was Krishna with his Gopis. Dream on! Not a chance. I took the Gita so ascetically when I was a kid that I even gave up flute playing, so I have little to offer except a relatively naked atma and a passionate article.

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If I were a mirror on the wall, I would admire all ladies equally. A classic Russian beauty was oft admired by the few men present. An equally admirable, dark-haired woman was rather ignored, so I captured her image for future reference.

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Well, gurus have said that the Atma of atmas created the wonders of the cosmos, and that every one of us has a piece of the Atma within. That and only that is the source of the beauty without.

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So it must be okay to be beautiful, sexy, and even rich. Maybe I shall switch gurus, from Swami Prabhupada to Swami Rajneesh, who had his beautiful staff drive him around his West Coast compound in fifty different Rolls Royces after he took whiffs of nitrous oxide, because, he said, when criticized for the display, Atma on high is opulent in person.

Maybe lazy too, since Rajneesh only allowed females to run his business before he was deported after taking over an Oregon town. A sociological study found that his gals excelled in all material respects in comparison to Prab’s women, who were kept under the gun.

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I buttonholed a handsome young fellow and asked him what he thought of the rampant development. “City officials are giving permits to people to destroy the city. They must start thinking about the people who actually live here, about the parents and the kids.”

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I thought about that as I walked home, reflecting on how beautiful South Beach is when you see its beautiful people.

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A Girl Named John Appears on South Beach West Side

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Watch out for a boy named Sue

1 October 2015

By David Arthur Walters PRESS INDEPENDENT

John Elizabeth Alemán, candidate for City Commission Group 6, appeared at a function for that occasion sponsored by the West Avenue Neighborhood Association at the swank Mondrian Hotel on West Avenue.

The gathering was small and intimate. Access to the event was hindered by longstanding road construction on West Avenue and Alton Road associated with repaving and installation of stormwater pumps and road raising that has cost many millions of dollars to businesses in the area over the last two years not to mention the general burden on taxpayers.

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John Elizabeth Alemán is a “girl named John” in keeping with the tradition in her family of naming children after her paternal grandfather’s World War II buddy and fellow Army medic.

Mrs. Alemán, who holds a degree in finance, was accompanied by her husband, technology executive Jose Braulio Alemán, a personable gentleman who was obviously very proud of his wife.

He said they met in the information technology business. She eventually retired from Ryder System, where she managed supply chain and transportation software projects, to attend to their children’s upbringing while he advanced his career. She was, however, approached by Mastec and offered a job as its CIO, which was her dream job because she had only been number two in information management at Ryder. She reluctantly agreed to serve as CIO on an interim consultant basis. When pressed to take the job permanently after nine months, she declined inasmuch as she desired to keep her commitment to raising her children.

She is well known in the education community for assisting PTA organizations, winning several county awards including “PTA President of the Year” in 2013. According to her page, she currently chairs the Quality Education Committee for the City of Miami Beach.

So education is her strongest suit. Her reputation in that field purportedly won her the endorsement of Commissioners Michael Grieco, a former prosecutor and now a criminal defense lawyer, who was present with his beautiful companion at the function, and Joy Malakoff, a banker, both of whom ardently support education and children’s programs.

Michael Grieco, in fact, has recently formed a nonprofit program entitled Miami Beach Kids First. Mrs. Alemán’s opponent, Mark Samuelian, a businessman and chess master who teaches chess to children and who claims to be much beloved by them, displayed the Miami Beach Kids First logo in a political email blast stating that he supported the program and intended to attend its first fundraiser. Mr. Grieco responded with a blast of his own, charging him with trying to hijack his kids program for political purposes.

Mrs. Alemán also enjoys the endorsement of Mayor Philip Levine, a wealthy developer and propagandist who has become increasingly under fire for his egoistic management style and exaggeration of his accomplishments.

Any specific wrongs done, however, can always be blamed on his city manager except for his association with Commissioner Jonah Wolfson in what appeared to be a shakedown of vendors and developers for hundreds of thousands of dollars in contributions to Mr. Wolfson’s political action committee, Relentless for Progress, the progress advertised being that purportedly advanced by the mayor.

The mayor, in response to the big stink raised by noted political reporter Michael Putney on television, said that the PAC was legal and that he was self-financing his re-election campaign anyway.

He has plenty of money for that, and is said to have purchased the majority on the commission that he now leads as a de factor strong mayor in city with a weak mayor charter, going so far as to say during the last election cycle that whosoever receives the king’s shilling is the king’s man.  A king never has enough money, nonetheless, and one way to have more of it is to use other people’s money instead of one’s own.

Mrs. Alemán insisted that she is not a bought politician. She is independent, she insisted, and is committed to voting her conscience; that is, she will vote for proposals she believes are good for the community, and against the rest.

The reason she said she decided to run for commissioner is that she believes the city is being taken in the right direction. She cited the free trolley along the west side of South Beach, and the success around the new pumps of the stormwater program initiated by the previous regime, except for the road raising aspect, and also the transparency of the current regime in respect to budgeting.

Traffic, of course, is a problem that she will work on, she said. Ironically, increased traffic is created by the overdevelopment that funds political campaigns, and now traffic resolution is a main plank in almost every politician’s platform. Her experience at Ryder would be of advantage to the community in that regard. She mentioned that multi-modal transportation, a system of interlinked vehicles that would take passengers to their destinations, might be part of a good solution.

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John Elizabeth Alemán rushed off to a debate on North Beach, so voters are urged to examine it for details.

Most of the neighbors who lingered behind with WAVNA president Gayle Durham thought Mrs. Alemán looked good. Win or lose, she is a good person to know. The view of the sunset was spectacular. The Cuban and Japanese snacks were delicious. The red sangria was better i.e. sweeter than the white, or at least that was the consensus.

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