Special Master Case No: JB10000105

September24,2012

September 24, 2012 Jose Smith, Esq. City Attorney CITY OF MIAMI BEACH Amended Closing Argument, Special Master Case No: JB10000105 Mr. Smith: Thank you for your August 24 explanation of the disposition of the above Special Master Case, wherein was included an email on the subject received from Steven Rothstein, Esq., who, according to your July 26 email, handled the case and dismissed it for want of service: The city issued the violation to a person who no longer owned the unit. The city did not issue the violation against the actual violator who did the unpermitted work. The city improperly tried to join the violator in the case without proper service. An appeal to the circuit court was filed. Mr. Rothstein did the only ethical, legal thing he could do, to wit: dismiss the case. I believe there may be a distinction between dismissing a case for lack of service, and mitigating or reducing a fine because the violator has been good and so on. However, I shall not object to your statement that, 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, if it is understood that the people are sovereign and the government is obliged to act in their best interest when deeming what its best interests are. And you say that, the City is not required to appeal a Special Master ruling in order to mitigate a fine imposed by the Special Master, as occurred here. But you and your assistant claim that the case was dismissed, not that the fine was mitigated, i.e. reduced. Still, in any case, it would be absurd for anyone to appeal against themselves. It was not in the citys best interest to dispose of this case in the way that it did. The mitigating power, which I believe has its origin in the kings mercy, or discretionary justice upon due clamor, as distinguished from punitive and rehabilitative justice, was abused. The clamor raised
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will be ever the more if the discretion is exercised regularly. No matter how reasonable a reduction in a fine may seem to the violators, it will appear arbitrary and preferential to those who believe determinate sentencing constitutes equal justice under the law. Sephardic tolerance is intolerable within the four cubits of the law. As for the allegedly defective notice, a person familiar with the August 11, 2011, hearing before special magistrate Babak Movahedi told me the plea made there was specious, that the owner knew about the violation, had depended on the contractor to take care of it, and intended to make good and take any fine imposed out of the contractors hide. Doubtless you are far more familiar than I am with the endless quibbling of jurists over notification whether statutory, actual, constructive or implied. I do not know whether one can argue in equity in Florida that a defect in statutory notice may be overcome by facts which raise a strong presumption of notice. I assumed that Judge Movahedi had ruled on the defective notice issue, therefore I pressed you for further records and an explanation since you said Mr. Rothstein had dismissed the case due to defective notice, and I saw nothing in the file that the city provided. Unfortunately, I phrased my question foolishly. You responded to me with several insulting email on July 26, the first one beginning with: My comment is that before you accuse anyone of wrongdoing you should know the subject you are writing about! ...and you call yourself a journalist? It was not until July 30, 2012, that you said I had been provided with all records: All records you requested were already provided to you. Don't waste your time asking for the same thing multiple times. My office will not provide you with a tutorial on due process, service of process or constitutional law. Get your own lawyer! I discovered from the recording of the hearing that the owner did not personally appear at the August 11, 2011, hearing. The contractor showed up with an employee whom he instructed to act as the owners representative, and simply say that the amount of the fine was unfair because the owner was away and was not receiving her mail. Apparently someone had read the standard Notice to Violators Late Compliance, which states that Legal or Equitable reasons may be presented; it would seem then that the prosecutor would have the same privilege, to apply equitable principles, as has been done in our tribunals for a long time, there being no separate courts of equity in this country, I think, except in Delaware. I would think even equitable estoppel could be considered by any sort of tribunal in the land unless the highest court ruled it out. After all, fair is fair. However, positing fairness has recognized forms, and no legal or equitable claim of defective notice was made: no definite motion was made to quash the order for the fine due to defective notice. Indeed, the case record does not show that the owner asserted a due process claim at any time. A notice of appeal was filed with the special master court. By then it was too late to assert defective notice, and it was not even then asserted, for no writ was presented to the circuit court, which would have had no choice but to consider the record alone and affirm the special masters judgement, since it could not newly hear the case (de novo). The only record referring to defective notice on the owner is your assistant Steven Rothsteins dismissed for defective
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notice, repudiating the special magistrates finding against the citys best, in effect throwing $26,741 away, and act that you have referred to as routine. However that may be, the contractor said he had gotten a permit within 30 days so there should have been no fine. I see that compliance permits were approved on October 14, October 19, and October 20, 2009. But that would not do, for fines run until the violation is remedied, according to Judge Movahedi. As for the mail, the judge said that the owner was responsible for taking care of her property and receiving her mail to that end. Wherefore he denied the motion to mitigate after politely asking more than once on what other grounds he was expected to mitigate. In retrospect it is questionable whether the contractor and his employee had any standing in the court unless acting as agent for the owner. Yet in fact the request for the mitigation hearing was made on April 10, 2011, signed by the owner but on the contractors letterhead; and it was the contractor, not the owner, who ultimately paid the settlement amount of $2,520 on October 6, 2011, the city writing off $26.741. Notice that the owner had signed a notarized Notice of Commence on September 9, 2009, stating that she, along with one Ricardo Borkowsky, were both owners, having an interest in the property. The Stop Work Order and Notice of Violation were given five days later, on September 14, 2009. It was not until January 6, 2010 that Mr. Borkowsky said he had sold the unit on August 19, 2009, and should not be liable for the violation. The deed was recorded August 25, 2009. Still, notice on him was arguably notice on the owner of record as well since she signed a notarized document prior to the violation stating they both had an interest in the realty. And if the contractor were in effect acting as her agent, he knew about the Stop Work Order and Notice of Violation and she would be served. You know I wonder about your authority to overrule a case ruling you happen to disagree with. Sometimes I get the impression that you have too high an opinion of your opinions, and think of your fatwas as the law itself or even superior to the font of the law, as if you were the grand ayatollah of the city; that is, upon occasion I perceive that you are obstinately convinced of the superiority or correctness of your own opinions and prejudiced against those who hold different opinions. I am willing to admit my mistaken opinions: In this case I admittedly made an incorrect inference from the facts: that the judge had denied a motion to dismiss the case for want of service, because I was blind to what transpired during the August 11, 2011, hearing due to your failure to provide a transcript. It is not true, although you said so, that I was aware that the hearing record was not kept in your office. Since you are purportedly personifying The City, and are its attorney, I figured you had access to all files concerning legal matters. It was only later that I discovered, after hearing references to transcripts being in your offices possession, that recordings of Special Master hearings are made. Incidentally, transcripts were referred to several times and produced during last Wednesdays legal oversight meeting, apparently for the purpose of criticizing the behavior of special masters, especially Babak Movahedi. Further, if an appeal is actually made, I understand that a record of the hearing is always produced. In my lay opinion, you violated the public records law, but without criminal intent, so that issue is dead because no further compliance, which is the civil intent of the law, is to be had.

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My August 15 article, Getting Ahead of The Job at the Special Masters Court concluded with a naive question about your authority to dismiss cases: . by what authority could an assistant city attorney or the City Attorney himself dismiss a special masters case when the only statutory venue for appeal seemed to be the circuit court? And of course he would not appeal versus the city that he represents. Why could we find no record of the circuit court case? Why is not that record in the file? Perhaps he and the defendants attorney struck a deal before a petition was filed with the circuit court clerk, so no dismissal upon settlement was filed there either. If that shortcut were taken, why did he not just say so in the first place? And if that kind of shortcut were routine, would it not arouse reasonable suspicion of unwarranted dealings behind the scenes? If this sort of defect in service of process is routine, and if the procedures are somehow defective at all levels, is not the city attorney routinely responsible for advising everyone concerned what changes must be made in defective routines? We are standing by for answers to those questions at deadline. I say nave or innocent because Sec. 30-77 of the Miami Beach Code reads: An aggrieved party, including the city administration, may appeal a final administrative order of a special master to the circuit court. Such an appeal shall not be a hearing de novo, but shall be limited to, appellate review of the record created before the special master. An appeal shall be filed within 30 days of the rendition of the order to be appealed. There was no reason given for the appeal on the notice of appeal. That would naturally appear on the writ filed in the circuit court, but no such writ was filed, and there was no assertion in the file from the attorney representing the owner that the appeal was caused by defective notice. Further, would not App. P. 9.100 (c) (2), requiring a petition to be filed with the circuit court in 30 days, apply here? If so, there was no appeal and the Special Master Order stood as it waswhy dismiss the case against the Citys best interest? It was only later that you said you wrote an ordinance that authorized the city manager or a financial analyst such as Jimmy McMillion to mitigate cases under $100,000, and the commission to reduce fines above that amount, but you did not cite the ordinance or provide a copy as requested. Of course I believe you, but I did not see your ordinance as an amendment to Sec. 30-77, where naive people concerned with Special Master Cases would logically look. No doubt you could cite it from memory. I want to be sure you made no distinction between mitigation and dismissals when you drafted the ordinance, since mitigation can mean anything done to reduce the severity of any form of penalty. My concern was then whether or not you disposed of a routine case incautiously and without proper authorization from your client the City. I suggested that, in the future, a formal warrant for special resolution be placed in every file mitigated or dismissed, giving an explicit reason for mitigation and dismissal, and citing the pertinent ordinance. Then the nature of the disposition would be clear to everyone, lawyer and non-lawyer alike. The city clerk could get a copy so that the costs of mitigations and dismissals by special masters, city managers, and commission could be tracked.

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You have highlighted some documents that would indicate, to the initiated party, that the financial analyst settled this case, presumably in accord with some formula derived from previous analyses, because the notice was defective, upon your offices advice. That contradicts your statement that Mr. Rothstein dismissed the case. Well, maybe he did in a way, by advising the financial analyst to apply a defective notice dismissal factor of, say, ten percent of the judgment hence the analyst was motivated to act by the full weight of the law. I attach a document that indicates that it was not the owner or her attorney that negotiated this settlement with the finance officer, but rather it was the contractor, who made the payment via one of his business entities. Files like this would certainly be more easily understood with the inclusion of a warrant signed by the finance officer or other authorized party as suggested. Now you write that my petitions regarding your offices disposition of this case nauseate you; that is, you refer to it as a subject as one I have written about ad nauseam. I continued to petition you because I found your responses including your insults inappropriate to the subject. That subject involves a loss of $26,741 which the extraordinarily wealthy owner of the property and her spouse believed they were responsible for and were willing to pay out of funds withheld from the contractor who created the violation. After the violation was remedied, the contractor went on to combine and build out the fabulous three units at the Continuum. As you should know, I had cause to suspect that the scope of the work was grossly understated, that perhaps $30,000 in permit fees had been evaded, therefore I notified the Building Department of my suspicion, with advice to look out for dummy invoices and the like when checking into the true value and scope of the work performed. In your July 31 email to the esteemed editor of the illustrious SunPost, you said that the case was routine and you construed my pleas to you as an attack on the City of Miami Beach, as if you were the city in its proper person: Mr. Walters has turned a routine Special Master Code case (dismissed by the City Manager's office for lack of jurisdiction and service of process), into a cause clbre to attack me, my staff, and the City. I note that you changed the source of the dismissal: it is now the city manager, not the city attorneyoops. I did not know exactly what you meant by routine. If routine were once a week, the total written off in a year would be $1,390,532. Needless to say, so-called mitigation of fines, dismissals, and lax enforcement of the municipal code is conducive to noncompliance and has been a pressing issue for some time in our community, at least since 2006. The plethora of complaints generally fell on deaf ears or was given a show hearing or two. The tipping point, in the communitys favor although it was disgraced, came with the FBI arrests of several city code enforcement employees. During my investigation that led to the series, Getting Ahead of The Job Con, almost every Building Department file I examined had in my opinion some defect. They were small defects with potentially fatal consequences. It appeared to me that as long as the forms had four corners, were signed and notarized, they were passable regardless of substance, as if subject to some sort of pharisaic ritual. Your office even informed me that it was perfectly legal and proper for blanks to be sworn to as true, to be filled in later at someones convenience. That someone could be a permit fixer working for an unlicensed general contractor who rents prostituted licenses, neither of whose names is on the permit applications; and neither the permit fixer nor the licensed
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contractor may be known by the owner who signed the application. I was even told that it was perfectly excusable to put the wrong name on a permit as owner when the right owner was known by everyone, simply because the county assessors office had not changed the record actually, that was not true in the case I asked about, for I had checked the county record before the permit was approved, and the current owner was on record. And when your office is warned of misconduct, it is blind to the warning, the Charter cited as the reason for doing nothing about it. The defects could be prevented in the future by administrative intervention under the advice of your office, which you have said you cannot give unless asked by a public official, as opposed to providing a proactive response to private citizen petitions. There was no cure for the overweening attitude of the last administration, of which I considered your office to be a part. That is why I said that your office has been instrumental in the demoralization of the city, and that prevailing conditions fostered turpitude and corruption. Not that I wanted to single you and your staff out personally until I was confronted by your insults and an invitation to walk me over the FBI. No, I was of the admittedly rash opinion that the top three persons in every department should be fired, the city charter revised in certain respects, and new elections held. Certainly Jorge Gonzalez, whom we credit for many good things, was not the cause of all the citys ills. You claim that my efforts are trash and defamatory garbage, and that you hope my noble professional as a journalist calling will cause me to retract it. GIGO I can only fill what I perceive to be holes in the citys procedures and records with whatever rubbish I receive from the city, notwithstanding your expert proclamations of law. As you know, the ancient teachers whipped boys for not questioning the law. My ashkenazic disposition moves me to dig quite a few holes in search for the hypostasis of things even when I am told I am digging my own grave. I wondered about your procedures again in this instance. I wondered why someone did not reissue the notice if it were defective, and why there was no proof in the file that the state statute and local ordinance was fully complied with in regard to constructive notice. Indeed, wished you would be more proactive and help provide your staff and special masters and building department officials with better processes and procedures. Then you would not have so much trash to deal with. There is nothing defamatory in my statements. I have spoken the truth to the best of my ability given the information you have provided. I have drafted my opinions and have petitioned my government, and thus far I see no error in them nor libel. Nothing will be retracted nor detracted, and everything you have said appears in the book of judgments. As for nobility of profession: a commission for what I have already saved the city would be substantial, but I have not received a thin dime for my efforts nor have I asked for anything, so I guess I am not a professional in your sense of the word. I obviously have nothing to gain and

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everything to lose for trying to help the city. I tried to give you quarter, but you could not spare a dime. Besides, I am no longer sure that journalists are very noble, so I am discarding that title. As for other titles, you can call me anything you want and I shall not sue you. However, if you order me to shut up and complain about garbage and trash, I may produce reams of free speech in response. Sincerely, David Arthur Walters

Fri, Aug 24, 2012 at 3:44 PM To: David Arthur Walters <miamimirror@gmail.com> Cc: "Rothstein, Steven" <StevenRothstein@miamibeachfl.gov> Mr. Walters: The attached documentation "expressly" establishes that the settlement and dismissal of the case, which you wrote about, ad nauseam, was resolved through "agreement by the Finance Department" (see highlighted language). My department's role was simply to give legal advice to Jimmy McMillon, whose job it is to resolve these cases on behalf of the Finance Department. JUST READ YOUR OWN DOCUMENTS! As to the appeal filed with the Circuit Court, Appellate Division, you will also find attached a copy of the Notice of Appeal. You always had this document in your possession. The City did not receive any other appeal documents filed with the appellate court (i.e. dismissal motions or orders). I can only presume that the appellant voluntarily dismissed the appeal after reaching a settlement with the Finance Department. You should also understand 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. The City is not required to "appeal" a Special Master ruling in order to mitigate a fine imposed by the Special Master, as occurred here. As to whether I did or did not provide you with ALL the records, I provided you with EVERY RECORD MY OFFICE HAD ON THE VIOLATION. In fact you had many more documents than I had since you evidently made a public records request to the city clerk. YOU NEVER ASKED ME FOR THE SPECIAL MASTER RECORDINGS and those records, as you well know, are kept with the Special Master clerk, not with me. I would now hope that YOU "dignify" the noble "journalist" profession by running a retraction on all the defamatory garbage you have written about my office and me.
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Regards, Jose Smith -----Original Message----From: Rothstein, Steven Sent: Friday, August 24, 2012 2:31 PM To: Smith, Jose Subject: RE: Special Master Statistics Request JS Attached is the Notice of Appeal and documentation obtained from the Special Master file in connection with the receipt of the mitigated sum as well as the Satisfaction of Lien. The Notice of Appeal was timely filed on August 29, 2012. The City was provided with a copy of the Notice of Appeal. The appellate file is maintained by the Clerk of the Circuit Court, Appellate Division, 73 W. Flagler Street, Miami, Florida. It is not part of the Special Master file. The receipts attached reflect that subsequent to the filing of the Appeal, the Finance Dept. reached an agreement to resolve the outstanding fines for $2,520.00. (inclusive of recording fees.). Thereafter, the Clerk of the Special Master issued and recorded a Satisfaction of Lien. From a legal standpoint the lien was defective and should have been released. (A release of lien would have been filed.) However, since there was a closing pending, the fine was paid on behalf of the Seller in order to clear title. Steven H. Rothstein, First Assistant City Attorney OFFICE OF THE CITY ATTORNEY

Neves, Cynthia From: McMillion, Jimmy Sent: Tuesday, October 11, 2011 8:36 AM To: 'Jihad' Cc: Neves, Cynthia Subject: RE: 50 South Pointe Dr #801 Jihad: The release is being done by the Special Master's Office. Miss Neves has all the documents and
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should be getting it completed soon. I will ask her to send it to you when complete. Have a great day. MIAMIBEACH Jimmy J. McMillion, Financial Analyst FINANCE DEPARTMENT 1700 Convention Center Drive, Miami Beach, FL 33139 Tel: 305-673-7000 Ext 6B05/ Fax: 305-7B6-394-4717 / www.jimmymcmillion@miamibeachfl.gov We are committed to providing excellent public service and safety to all who live, work and play in our vibrant, tropical, historic community. CONFIDENTIAL NOTICE: This message and any attachments are for the sole use of the intended recipient(s) and may contain confidential and privileged information that may be exempt from public disclosures. Any unauthorized review, use, disclosure or distribution is prohibited. If you received this message in error, please contact the sender (via email, fax or phone) and then destroy all copies of the original message. Thank you. -----Original Message----From: Jihad [mailto:jd@sharronlewis.comJ Sent: Monday, October 10, 2011 10:40 PM To: McMillion, Jimmy Subject: 50 South Pointe Dr #801 Dear Jimmy, Thank you for taking the time last Wednesday to work with us on case #JB10000105 it's really appreciated. Please when you have the chance email me a copy of the release of lien for the above case. Thank you Jihad Doujeiji

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