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MIAMI MIRROR TRUE REFLECTIONS

SadigoCourtApartmentHotelcourtyard

EISENBERGVCITYOFMIAMIBEACHSUMMARILYDISMISSED
Updated:March03,2015
MIAMIMIRROR
byDavidArthurWalters
CorruptionOpportunityPrevailsinMiamiBeach
InasurprisingandhumiliatingdefeatforRodEisenberg,whosuedtheCityofMiamiBeachin
federal court for shutting down his historic Sadigo Court Apartment Hotel in South Beachs
CollinsParkarea,throwinghisguestsontotothestreetandarrestinghiminallegedretaliation
forhiscomplaintsaboutthecorruptionandnegligenceofcityofficials,U.S.DistrictCourtJudge
CeciliaM.Altonaga,inanOrderdated16December2014,summarilydismissedhiscomplaint
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 citys previous motion for summary
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dismissal.Cityattorneyshadmanagedtogetfourofthesevencountsdismissedinaprevious
motionfordismissal,andthenmovedinforthekillatthelastmomentwithamotionforfinal
summary judgment fatal to the remaining three counts. Eisenberg, anticipating a trial, might
have been surprised by the sudden motion, but it is part of the summary motion game ever
popularinfederalcourts,wherecomplaintsmaybehackedtodeathpiecebypiecebecausethe
objective of the summary judgment procedure is to pierce the pleadings and to assess the
proofinordertoseewhetherthereisagenuineneedfortrial.
AccordingtoRule56oftheFederalRulesofCivilProcedure, Apartymaymoveforsummary
judgment,identifyingeachclaimordefenseorthepartofeachclaimordefenseonwhich
summary judgment is sought. The court shall grant summary judgment if the movant shows
thatthereisnogenuinedisputeastoanymaterialfactandthemovantisentitledtojudgment
asamatteroflaw.Thecourtshouldstateontherecordthereasonsforgrantingordenyingthe
motion.
Altonagaconcludedthat,asamatteroflaw,thecitycannotbeheldliableundersection1983
where the challenged fire safety enforcement decisions made by the City Fire Marshal were
subject to meaningful administrative review by County and State authorities. As this issue
andtheabsenceofevidenceshowingtheexistenceofanunconstitutionalCitypolicyorcustom
aredispositive,theCourtneednotaddresstheCitysremainingargument.
I shall challenge that conclusion elsewhere. It is my opinion that that question of municipal
liabilityinthistypeofcaseisoffargreaterimportancethanthemeritsofEisenbergscase,that
itisofnationalimport,and,ifhehadthewherewithaltodoso,heshouldhaveappealedtothe
highestcourtintheland.
According to Eisenbergs complaint, the pretext for the citys allegedly thuggish treatment of
himinregardtohisownershipofvintage1936Sadigowasthatitwouldhavetobereclassified
from its state licensed use as a transient apartment lodging to a hotel because it had built a
coldfood preparation area, duly permitted by the building department, in the interior
courtyard, so that area would now have to be designated a restaurant, therefore the
apartmenthotelwasnowahotel.
EisenbergandcityattorneysapparentlywentforbrokeintheSadigocaseinsteadofarrivingat
acompromise.ApparentlythesamecityattorneyshavebeenfeudingwithEisenbergformany
years hence pursued the instant issue as a matter of principle. Eisenberg, for his part, was
reportedly deeply offended back in 1993 by what he called the good old boy network of
MiamiBeachthatdestroyedhisdreamofoperatingwiththeDesignPreservationLeagueanArt
DecoWelcomeCenterandGiftShopwhenhisbidtoleasethepremisesforthatpurposefrom
the city was rejected because it was either a few hours late or preference was given to an
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allegedly corruptly favored bidder. It appears from several incidents thereafter far that that
incidentputhimpermanentlyatoddswiththerulingclique,andthathemayhaveotherwise
becomeagoodoldboyhimselfbynowsincehewasfamiliarifnotintimatewithsomeofthe
currentpowereliteduringhisschooldays.
For all we know, the Sadigo affair may be a just another instance of where action taken to
correct the usual ineptitude, negligence, and mismanagement of Miami Beach officials is
misinterpretedasretaliation.TheysaidIcoulddothis,andnowtheyarepickingonme,and
thatmustbebecauseIgavethemabadtime.Alltheyhadtodowaschangethepapertoread
hotelinsteadofapartment.
ThequibblingbetweenwhetherornottheSadigoCourtApartmentHotelshouldbeclassified
as an apartment or a hotel compatible with the zoning code is rather mindboggling to
someonenotfamiliarwiththetangleofcityprocessesthatlawyerswillbegladtountanglefor
afee.EisenbergstatedtothemediainAugust2011thattherealproblemwasnotpublicsafety,
itwasjustpaperwork.Afterall,hesaid,theSadigohadbeenservingtouristsfor70years.He
vowed to fight the city to the end, claiming that his was a case of big hotels versus family
operations.ThisisdefinitelyDavidversusGoliath,hewasquotedassaying.
TheSadigoCourtyardApartmentHotel,purchasedbyEisenbergin1988,doesindeedliewithin
the Museum District within the Residential Multifamily Medium Intensity District (RM2) for
which the main uses permitted by Sec. 142212 of the Miami Beach Code of Ordinances are
"residential multifamily, medium intensity district are single family detached dwellings; town
homes; apartments; apartmenthotels; and hotels," the only exceptions being the Palm View
andWestAvenueCorridorsdistantfromthehistoricMuseumDistrict.(Emphasisadded).
If the Sadigo had been operating as a transient apartment building since 1936 without any
questions asked, and then obtained a state transient apartment license in 2006, and, shortly
thereafter,acitycertificateofoccupancyandbusinesstaxlicenseforthatusethereafter,we
must ask how the occupancy was certified and business taxes paid prior to 2006, and what
triggeredthefilingin2006,andwhyacertificatewasgranted,ifthatwerethefirstonegranted
fortransientapartmentuse,withouttheinstallationoffiresprinklers,whichwepresumewould
have been required at that time, sprinklers being required for transient uses including
multifamily apartment buildings and hotels, with nebulous equivalency exceptions for
contributinghistoricstructuressuchastheSadigo.
Now this series of essays is entitled The Fire Sprinkler Case because the fire sprinkler
requirement is the pretext for a dispute that may be a continuation of a longstanding feud.
Unsurprisingly, there have been a number of such disputes involving historic structures
throughout the nation with the advent of the fire sprinkler requirement. Common sense
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dictates that fire sprinklers equal fire sprinklers, that there is no equivalent to the ability of
automaticfiresprinklersystemstopreventinjuryandsavelives.
TheNationalFireProtectionAssociationsetsthestandardsthatmanystatesincludingFlorida
incorporateintheircodes.InNFPAS2013reportonfiresprinklers,JohnHallwrotethatsome
typeoffiresprinklersystemwaspresentinonly6%ofreportedhomestructurefiresin2007
2011. When wet pipe sprinklers were present, the death rate per 1,000 fires was 82% lower
comparedtohomefireswithnoautomaticextinguishingequipmentatall.And12%ofdeaths
werecaused by smoke that impaired victims vision of escape routes, smoke that could have
been suppressed by sprinklers. Life saving smoke suppression would be Miami Beach Fire
MarshalSoniaMachensmainargumentforthenecessityofinstallationofautomaticsprinklers
attheSadigo;shesupposedthatshorttermguestswouldnotknowwheretoescapewithout
them.
However,firesafetyisacost/benefitissueforwhichcertaintradeoffsaremade.Forexample,
in2007BakerCity,Oregonacceptedtheinstallationoftwofireresistantdoorsinthehallsthat
leadtotwoofthethreemovieauditoriumsinthecityshistoricEltrymTheatre,Thatchange,
togetherwiththenumbersofseatsthereinalreadyreducedbyhalf,wasdeemedequivalent
tofiresprinklerperformance;meaningthattheobjective,thereductionofinjuriesandsaving
of lives, would be equivalent to that obtained prior to the changes if sprinklers had been
installed.
Coincidentally,theowneroftheEltrym,RudyardColtman,whosuedBakerCityanditsbuilding
official and manager for shutting down his theatre, and Rod Eisenberg, the owner of South
BeachsSadigo,whosuedtheCityofMiamiBeachbutnoneofitsofficialsforshuttingdownhis
transientapartmentbuilding,aretrainedlawyers,withColtmanpracticingandEisenbergnot.
Coltman at the time was involved in the renovation of three movie theatres. Eisenbergs
developmentsincludethreebuildingsbesidestheSadigo.Coltmansaidatthetimeofthecourt
settlement, which served as his certificate of occupancy, that he intended to sue the city for
damages. Eisenberg may have erred in not suing the Miami Beach officials in their individual
capacity,asisoftendoneinlikecases,iftheywereactingunreasonablytodeprivehimofhis
civilrights.
In the Baker City theatre case and others, the installation of fire sprinklers would have
destroyedsomeofthehistoriccharacterofabuilding,nottomentioncausethestructuretobe
closedpermanentlyduetotheextraordinarycost.Sothedeterminationofwhatconstitutesa
lifesaving system equivalent to automatic fire sprinklers is left to the discretion of local
officials and experts, and the determination of equivalency is more of an art than a science.
Unfortunately, art leaves considerable latitude, like other discretionary issues, for
misunderstandingsastomotives,andmoralandcriminalcorruption.
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Section633.022(2)(c)oftheFloridastatutesprovidesthatalocalauthoritymay,onacaseby
case basis, in order to meet special situations arising from historic, geographic, or unusual
conditions, with respect to a building or structure which is subject to the uniform firesafety
standards,authorizeequivalentalternativestandardsforsuchbuildingorstructure;however,
thealternativerequirementsshallnotresultinalevelofprotectiontolife,safety,orproperty
less stringent than the applicable uniform firesafety standards. All such local authorities shall
enforce,withintheirfiresafetyjurisdiction,theuniformfiresafetystandardsforthosebuildings
specified in paragraph (1)(b) [includes transient public lodging] and the minimum firesafety
standardsadoptedpursuanttos.394.879[mentalhealthinstitutions].Emphasesadded.
Section509.215providesthatpubliclodgingestablishmentsofthreeormorestoriesoraheight
75 feet or more, and for which the construction contract has been let after September 30,
1983,musthavefiresprinklers.However,aspecialexceptionmaybemadeforcontributing
historic structures, which Sadigo is, providing they meet the intent of NFPA standards as
interpretedbystateofficials.
What bearing a formal change of use from residential apartment to transient or shortterm
rentals at the ancient Sadigo on for which the construction contract has been let is
problematicespeciallyifrenovationcoincidedwiththeformalchange
Floridas standard for historic structures is expressed in NFPA 914, which takes usback to an
equivalency that Eisenberg naturally construes in his favor. Clearly, the authority having
jurisdiction,inthiscasetheCityofMiamiBeach,isthepolicymaker.
1.4.1Nothinginthiscodeisintendedtopreventtheuseofsystems,methods,ordevicesof
equivalent or superior quality, strength , fire resistance, or effectiveness, provided that the
followingconditionsaremet:(1)Technicaldocumentationshallbesubmittedtotheauthority
having jurisdiction to demonstrate equivalency. (2) The system, method, or device shall be
approvedfortheintendedpurposebytheauthorityhavejurisdiction.1.4.2Historicstructures
orportionsofsuchstructuresthatdonotstrictlycomplywiththiscodeshallbeconsideredto
be in compliance if it can be shown that equivalent protection has been provided or that no
specifichazardwillbecreatedorcontinuedthroughnoncompliance.(NFPA914FireProtection
ofHistoricStructures,2010Edition)
Thereisobviouslyplentyofroomforargumentsonbothsideshere,notonlyonlawbutonthe
facts, arguments that should have been made before a jury instead of being dismissed
summarilybyalocalfederaljudgeintimatewiththelocalpowerstructure.Clearlylocalofficials
haddiscretiontosetpolicyforthecityastoequivalencyandsetittheydid,anditwasunlikely
thatcountyofficialswoulddisputetheirartfuldefinitionoftheterm,whereforeJudgeAltonaga
wasclearlyinerrorindismissingthecaseonthebasisthatthecitywasnotthepolicymaker.
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Eisenbergappliedforacertificateofoccupancyforuseasahotelafterthecitydefinedhiscold
food preparation room as a restaurant, a definition that seems ridiculous since it was not
open to the public as a restaurant. His application was denied because now, insisted city
officials,itwouldneedthefireprotectionsystemapplicabletobrandnewhotelstructures.
City attorneys argued in court that a universal law mandated fire sprinklers in his case.
Eisenbergmaintainedthatthecityattorneysknewbetter,thattherewasnosuchuniversallaw,
thathiskindofhistoricstructurewasactuallyexcludedfromtheuniformrulesbystatelaw.In
otherwords,theyliedincourt,where,itissaid,moreliesaretoldthananywhereelseinthe
world.
Accordingtothefindingsintherelatedstatecase(1122415CA01)previouslybroughtinthe
Eleventh Judicial Circuit Court for Miami Dade County by Eisenberg against his former
attorneys,JeffreyBercowandBercow,Radell&Fernandez,forfailingpersuadethecitytoallow
himtooperateatransientlodgingwithoutfiresprinklers,thesprinklerrequirementisthesame
for transient apartments and hotels because it is assumed, or so said Fire Marshall Sonia
Machen, that shortterm tenants i.e. tourists are less familiar with the premises they occupy
hence would be placed in greater danger than longterm tenants because they would not be
aware of escape routes. Circuit Court Judge Daryl E. Trawick dismissed the complaint with
prejudiceonJune2,2014,rulingthatitwasashambecausethefactsclearlydemonstratedthat
thelawfirmwasnotresponsibleforEisenbergslosses.
JudgeTrawickrecountedinthedismissaldocumentthatMr.Eisenbergsubsequentlysoughta
temporary injunction against the City in this, the Eleventh Judicial Circuit Court, in Eisenberg
DevelopmentCorp.v.TheCityofMiamiBeach,caseno.1120234CA15.OnJanuary56,2012,
JudgeJohnThorntonheardtwodaysoftestimony,includingtestimonyfromMr.Eisenbergand
hisexperts,aswellasvariousengineers,andtheCityFireMarshal.
Judge Thornton took note of the testimony of Richard Lorberg, the Citys Planning Director,
whospecificallyconcededthattheSadigowasatleastzonedtooperateonatransientbasis.
The court nevertheless concluded consistent with testimony at the hearing that the Fire
MarshalhadjurisdictiontointerprettheFirePreventionCodeandtootherwiseinsistuponthe
presentationofanacceptableequivalencyreport,inordertoprotectthepublicsafety,health
and welfare. Ultimately, Judge Thornton concluded that the Sadigo had failed to properly
challengethefindingsoftheFireChiefregardingtheneedforasprinklersystemandthatthe
lifesafetyconsiderationsofprotectingtheinnocentpublicinanoncodecompliantbuilding"
outweighedanyprospectivelossofprofitofgoodwilltoSadigo.
ThejurisdictionoftheFireMarshalwouldbeacrucialissueinthefederalcaseastotheidentity
ofthepolicymakerinrespecttotheinterpretationofthefirecode;thefederaljudgeheldthat
thecitywasnotthepolicymakerbecausethefiremarshalsdecisionscouldbeappealedtoan
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authority higher than her employer, the city, something that Eisenberg had done to no avail,
yetstillhadnotexhaustedhisoptionsincludingfurtherappeals.
ThefederalcomplaintallegesthatEisenbergcontinued,from2006to2011,torenthistransient
apartmentsoutonashorttermbasisasbeforedespitebeingharassedwithviolationnotices
andceaseanddesistorders.Thebuildingofficialinsistedthatasprinklersystembeinstalled,
refusingtoacceptanengineersequivalencyreport.
Eisenberg addressed the city commission in 2011, arguing against the hotel reclassification.
TheMayor,CityCommissioners,CityManager,andCityAttorneywereindifferentandtheCity
Fire Chief took offense to Plaintiffs claims of unfair treatment, reads one of the plaintiffs
courtfilings,draftedbySmolker,Bartlett,Schlossler,LoebandHines,aTampalawfirm.
Indeed,thecitycommissionsafteractionreportforJan.19,2011,statesthatRodEisenberg
explainedthathehasbeentryingtodoachangeofoccupancyfromR2toR1forthreeyearson
an apartment building which is an existing historic structure and explained the barriers he
encounteredthroughoutthisperiodoftimeandhiseffortstoresolvetheissue.EricYuhr,Fire
Chief,respondingtoMr.Eisenbergallegationsandfortherecord,statedthattohavesomeone
standbeforethisCommissionandcharacterizetheethicsoftheFireMarshalisoffensiveand
outofline.ThisFireMarshalworksdayandnightintryingtoupholdthecode.Headdedthat
he resents the implication that the Fire Marshal engages in harassment or in a retaliatory
mannerandaddedthatitisunacceptable.
ThestatecircuitcourtdismissaldisclosesthatEisenberghiredanengineer,thenanarchitect,
andthenanotherengineer,recommendedbyhislawyer,tocomeupwithadesignthatdidnot
includefiresprinklers.Theyalldesisted,onebyone,atwhichpointEisenbergfiredthelastone
alongwithhislawyer,whomhesued,callingtheprofessionalsshillsi.e.decoysforthecity,
con men posing as his experts. His lawyer Bercow alleged that he advised Eisenberg that the
specialexceptionstothefirecodeforhistoricalstructuresmightbeanavenuehecouldpursue,
butheshouldnotcountontheresults.
Eisenbergs federal complaint alleged that Plaintiffs believe the City Fire Marshall [Sonia
Machen]toldtheSadigosmortgageetheSadigowasillegallyoperatingasahotel.OnJanuary
21, 2011, the Sadigos mortgagee advised it would not renew its loan after previously
encouraging Plaintiffs to renew the Sadigos loan. Plaintiffs were left with no choice but to
refinancetheSadigoatahigherinterestrateanenormousadditionalcost.
InApril2011,theCityinformedtheSadigoslongstandingclient,theArtBaselFoundation,the
Sadigowasillegallyoperatingasahotel.TheFoundationthensevereditsbusinessrelationship
withPlaintiffs.InJune2011,theCitysentundercoverpoliceofficerstotheSadigotoverifythe
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Sadigowasrentingtotransientguests.Afterobservingtransientrentalactivity,theCityspolice
officers shut down the Sadigo for noncompliance with City fire codes, evicting the Sadigos
tenants and guests. This shutdown caused the Sadigos largest client, responsible for over
$100,000inannualrevenue,toseveritsbusinessrelationshipwithPlaintiffs.
In December 2011, fifteen police offers, ten code enforcement officers, including [Jose]
Alberto,andfivefireofficialsforciblyshutdowntheSadigoforasecondtimeforviolationsof
Cityfirecodes.TheshutdownoccurredwhiletheSadigowashostingthePoolArtFairduring
the renowned Art Basel Miami Beach art show, forcing guests to vacate the premises in one
hour.Alberto[JoseAlberto,laterconvictedandimprisonedforcorruptionelsewhere]offered
to solve Eisenbergs problems by using his people, insinuating a bribe would be due from
Eisenberg. When Eisenberg refused by stating he already had legal counsel working on it,
Albertostated...Eisenbergwouldnotgetfarusinglegalmeans.Eisenbergwasthenarrested.
InApril2012,Albertoandothercodecomplianceofficersandfiredepartmentinspectorswere
arrestedforbribestheyacceptedinJune2011.Sincethesearrests,theSadigohasnotreceived
anyfurthercodecompliancenoticesorviolations.
Americas beloved mobster Al Capone, who kept a gambling hideaway at the Clay Hotel on
EspanolaWay,wherethecurrentmayorsfriendandpartnerScottRobinshasrunantransient
apartmenthotelwithoutacertificateofuseandbusinesstaxreceiptlicenseforseveralyears,
wouldprobablycallcityofficialspansiesfortakingsolongtoclosedowntheSadigoandfornot
makingsharkbaitofitsownerforexposingthecorruptgoodoldboynetworktoinvestigators
andthemedia.
According to Eisenbergs suit, he had discovered that the citys bid selection process was
corruptin1993afterbiddingtorentspaceattheoldcityhallbuilding.Thatmotivatedhimto
takecityofficialstotaskonothermatters.
He learned the winning bidder was receiving free rent in the Old City Hall during the bid
challenge.HealsodiscoveredaCitycommissionerandhissonhadreceivedwhatamountedto
an illegal brokerage commission on a $10 million real estate transaction. He subsequently
disclosed these instances of City corruption to the media. As a result of his disclosures, a
scandalensuedwhichultimatelyledtotheCitymanagerresigning,andtheCityattorneybeing
forced out, The Florida Department of Business and Professional Licensing subsequently
brought an elevencount administrative complaint against the City commissioners son, the
sonscompany,andthewinningbidderagreedtopaythefines.
In1995,EisenbergchallengedtheCityandMiamiDadeCountyscreationofaredevelopment
arearelatedtotheMiamiBeachConventionCenter.Between2004and2009,Plaintiffsand
othersintheneighborhoodvoicedmanycomplaintsaboutthehealthandsafetyrisksandCode
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complianceviolationsofanabandonedhotelintheneighborhood.TheCityinvestigatedsome
ofthesecomplaintsbutdidnotresolvetheproblemswiththebuilding.
Between 2006 and 2012, multiple City officials were investigated and prosecuted for
corruption.In2006,aCityelectricalinspectorwasarrestedforsolicitingbribesin2008,aCity
fire protection analyst was fired after reporting suspicions of kickbacks. Also in 2008, a City
planner,examiner,andinspectorwereallcaughtacceptingbribes.In2012,Cityprocurement
director, Gus Lopez, was charged with sixtythree felony counts, including racketeering, bid
tampering, and illegal compensation, And also in 2012, seven City Code compliance and fire
department inspectors, including the Citys lead code compliance officer, Jose Alberto
(Alberto),werearrestedforextortionandacceptingbribesinJune2011tobypasscitycode
enforcementinspectionsandfines.
Asfarasoldtimersareconcerned,allthatisgovernmentbusinessasusualonMiamiBeach.
Official negligence is commonplace. Many ordinances, obscure to most residents not doing
businessonthebeach,areignoredunlesssomeonecomplainsaboutspecificviolations,often
for purposes of retaliation or simply to make trouble for someone they do not like. Selective
enforcement is also a feature of widespread moral and criminal corruption, where the
labyrinthinecodesaremainlyappliedtooutsidersorunsupportivepeople.Thelawsthemselves
may not be discriminatory, yet they are applied in discriminatory fashion if not randomly to
createtheappearancethatofficialsaredoingtheirdutyhereandtherefromtimetotime.
Manyinformedpeoplelikeitthatwayorgoalongwithittogetalong.Thatis,untiltheyare
personallyoffended,aswasunluckyRodEisenbergwhenhewantedtorentspaceatcityhall
anditwascorruptlyletouttosomeoneelse.Insteadofwaitingforthenextdrawofthecards,
heshothismouthofftomedia,filedfailedlawsuits,andthenherefusedtopayofftheright
people when officials retaliated against him. Well, the overwhelming majority of people who
respondtopollsinparadisebelievethecitygovernmentisdoingagreatjob.Lawsuitsagainst
thecitytobedefendedattaxpayerexpensearenotappreciated.Eisenbergisdamnedfoolto
thosewhowouldinRomedoasRomansdo.Andheisaquixoticheroforthosewhoactually
believethateveryindividualshouldorcaneverbeequalunderthelawsofhumannature.
Attorneys must tell a compelling tale if they are to win their cases. The subheadings of the
original complaint filed by Eisenbergs attorneys outline his story of woe: The Parties,
Jurisdiction, and Venue; The Sadigo Court Property; The City's Culture of Corruption Unjustly
Ensnares Mr. Eisenberg; The City's Culture of Corruption Continues; The City Arbitrarily and
MaliciouslyDeemstheHistoricSadigoCourtaHoteltoPreventthePlaintiffsfromRentingIts
ApartmentstoTransientGuests;TheCityArbitrarilyandMaliciouslyDeemstheHistoricSadigo
Court a New Hotel to Prevent Plaintiffs from Renting Its Apartments to Transient Guests By
ImposingUnreasonableandUnnecessaryFireProtectionRenovationRequirements;TheCity's
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Culture of Corruption Unjustly Ensnares Mr. Eisenberg Again; The City's Application of Its
Unwritten Customs, Policies, and Practices; The Consequences of the City's Arbitrary and
MalevolentActions.
Theremediesprovidedbylawarethenclaimed,countbycount.Eisenbergwantedreliefand
damages under federal and state constitutions for the violation of his civil right to equal
protectionoflaw,freedomofspeech,anddueprocess.
Furthermore,hewantedthecourttodeclarethatthecitysuseoffireregulationsinrespectto
thetypesofoccupationandzoningofhistorichotelsviolatesstatelawandisthereforeinvalid,
andtoprovideattorneysfeesandwhateverotherreliefisavailable.Andheaskedthecourtto
clear up the confusion as to the difference between a transient apartment and a hotel, and
declarewhatlocalordinancesproperlycomplywithstateandfederallawsothatallinterested
partiesmayknowtheirrightsanddutiesinthatregard.
Finally,theplaintiffaskedthatthecasebetriedbyajury.Ifthefactsasgiveninthecomplaint
aloneweretrue,wewoulddrawinferencesbasedonourdisaffectionwithgovernmenthence
mostlikelygranthimthereliefandremedieshedesired.Butwearenotjudges,andthelawin
thehandsofcavilersissomethingotherthanwhatitseemstosaytolaymen.Afterlookingat
the facts offered, the judge dismissed the case, supposedly as a matter of law, yet also
substituting herself as a jury considering the facts by citing Channa Imps., Inc. v. Hybur, Ltd.
(2008)asalegalstandard:Afactualdisputeisgenuineiftheevidenceissuchthatareasonable
jurycouldreturnaverdictforthenonmovingparty.Sotherewillbenojuryofthepeopleto
hearalltheevidenceandholdthecityaccountableifnecessary.Wherefore,withthisbestowal
ofimmunityonthemunicipality,theopportunityforcorruptionprevails.
Nowthathehashadhisfederalcasedismissed,wewonderifEisenbergwillsuehisnewsetof
lawyersformalpractice,andtrytogetthecasereopenedbyallegingnewfactsorfraudonthe
court.
Andnowthecitymayclaimfederalsuitwasjustasmuchashamashisstatesuit.Thecityhas
askedthecourtfor$30,000incourtcostsandwantsattorneyfeesof$800,000toboot,thus
putting pressure on Eisenberg to blame his attorneys again. And so on ad infinitum. We
estimateEisenbergsownlegalfeesat$600,000alltold.Histotaldamagesincludinglegalcosts
and fees, closures and refinancing, from fighting city hall may well exceed $4,000,000. If he
werenotamanofprinciple,hewouldruethedaythathechosenottoinstallsprinklersata
costof$100,000.Asamanofprinciple,hemaywishthathehadnotfoldedhiscardsinsteadof
mounting an appeal on the issue dismissed, that municipalities are not liable in his type of
situation;awintherewouldatleastredeemhimwithanationalmeritbadge.

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Klansmen(MiamiBeachofficials?)tryingtolynchacarpetbagger(RodEisenberg?)in1871(2011?)

TheCityandtheKuKluxKlanAct
Tourists staying at the Sadigo Courtyard Apartment Hotel were duly terrorized when City of
Miami Beach officials rode in to raid the historic establishment, throwing them out on the
street with their luggage and arresting proprietor Rod Eisenberg for letting out his state
licensed shortterm rental apartments, which must have kitchens to be licensed as such,
withoutgettingalocallicenseforashorttermrentalhotelunlessheinstalled$100,000worth
offiresprinklers,asifthechangeinpaperworkwouldmakethe70yearoldstructureabrand
newhotel.Onereasongivenbyofficialsforthenecessityofthechangeofusageclassification
of the socalled apartment hotel was that he had devoted a room on the ground floor to
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prepare cold food for guests; that presumably made it a restaurant, so the apartments
suddenlyconstitutedahotel.
AccordingtoEisenberg,whoinsistedallalongthathisstructurewasexceptedbylawfromthe
sprinklerrequirementasahistoricstructurecontributingtoArtDecohistory,theraiduponhis
businessbycityofficialswasjustapretextforvengeancenowwreakedonhimbytheofficial
GoodOldBoyclanforexposingtheirnegligenceandcorruptioninthepast,andforrefusingto
pay for protection by invisible means to support their unseemly racket. Indeed, he had an
ongoingfeudwiththepowerfulcliquerunningbacktothetimeitruinedhisdreamofoperating
an Art Deco Welcome Center and Gift Shop with the Design Preservation League on city
property, allegedly rigging the bidding for the lease. If it were not for that feud he might
presentlybeaGoodOldBoyhimself.
Alas that Eisenberg is a Man of Principle in notoriously corrupt Miami Beach. Federal judge
CeciliaM.Altonagarelieduponaspeciousdoctrineofmunicipalimmunitytosummarilydismiss
hiscivilrightssuitagainstthecityon16December2014.Hispursuitofprincipleshasrendered
himavirtualATMmachineforlawyers.Hispotentialdamageincludingattorneyfeesandcourt
costsisaround$4million.
Eisenbergs counsel in the federal case cited two of several surviving sections of the Ku Klux
KlanAct,passedbytheFortySecondCongressin1871,withinamonthofPresidentUlyssesS.
Grantsrequestforlegislativeauthoritytosuspendhabeascorpusandemployfederaltroopsto
putdowntheKlanduringtheReconstructionEra,asthestatutorybasisforEisenbergsclaims:
Sections1983and1988.
Section 1988, Proceedings in vindication of civil rights, authorized federal courts having
jurisdiction to apply common law as well as statutory law to civil rights litigation in civil and
criminalcasesprovidingthattheapplicationwasconsistentwiththeUnitedStatesConstitution,
andallowedtheprevailingpartytorecovercostsincludingattorneyfeesandexpertfees.
Section1983Civilactionfordeprivationofcivilrights,wasintendedtocompensatevictimsof
past abuses and serve as a deterrent against future constitutional deprivations. Injunctions
couldenjointheKlanfromengaginginfutureviolations,butcouldnotcompensatethevictims.
TheKlandisbandedandvirtuallydisappearedunderpressurefromthenationalgovernment.
Everypersonwho,undercolorofanystatute,ordinance,regulation,custom,orusage,ofany
StateorTerritoryortheDistrictofColumbia,subjects,orcausestobesubjected,anycitizenof
the United States or other person within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the
partyinjuredinanactionatlaw,suitinequity,orotherproperproceedingforredress,except
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thatinanyactionbroughtagainstajudicialofficerforanactoromissiontakeninsuchofficers
judicialcapacity,injunctivereliefshallnotbegrantedunlessadeclaratorydecreewasviolated
or declaratory relief was unavailable. For the purposes of this section, any Act of Congress
applicable exclusively to the District of Columbia shall be considered to be a statute of the
DistrictofColumbia.
Of course the offending persons in the historical context might be sheriffs, prosecutors,
judgesandjurorsaswellasriotousKlansmenandothermaskedoutlawsoperatingunderthat
guise.
The Ku Klux Klan Act provided federal teeth to enforce the Civil Rights Act of 1866, the
Thirteenth Amendment of 1865, the Fourteenth Amendment of 1868, and the Fifteenth
Amendment of 1870. Southern states were particularly concerned that Section 2 of the
Thirteenth Amendment passed by Radical Republicans would allow Congress to pass laws
interfering with their traditional white supremacy rights. The socalled Black Codes of certain
stateslikeMississippiandSouthCarolinawereemployedtoshieldpersonsfromresponsibility
for violence against blacks. Hence the Civil Rights Bill was drafted. The Republicans believed
thattheprohibitionofslaveryandinvoluntaryservitudeandotherrightsthenbeingconsidered
shouldapplytoallpersonswhetheractingintheirofficialorprivatecapacity.Theopposition
disagreed,andspeciouslyarguedthat,ifstateofficialswereprohibitedfromdeprivingpeople
oftheircivilrights,thenprivatepersonswouldnaturallyrefrainfromdoingso.
OnlynineteendecisionsincivilcaseswererenderedaccordingtoSection1983inthefirstsixty
fiveyearsafteritsadoptionin1871,butthenitwouldbetakenupwithavengeancebypeople
of all colors and classes. Attorneys would initially argue that Congress intended civil rights
legislationtoprotectNegroesonly,andthatitwasnotneededtoprotectwhites.Judgesmade
short shrift of that defensive posture, and refused to discriminate in favor of Negroes to the
detrimentofwhites.Ironically,evenKlanmembershavetakenadvantageofthelegislationto
asserttheirrightsassuch.
It seems quite a stretch to compare the government of the City of Miami Beach with the Ku
Klux Klan, even though several of its departments have been called Racketeer Influenced
Corrupt Organizations in court documents. In Eisenbergs case, there is no vigilante clan
distinctfromthepolicepower.CityofMiamiBeachofficialsmaynotbemembersoftheKuKlux
Klan, nor are officials supporting privately organized vigilantes to the best of my knowledge,
although they may be considered, metaphorically, as a claque or criminal circle or kuklos. If
officialsaremiscreantsinthecontextofEisenbergscomplaint,theyareaclanofprofiteering
racketeers,orjustbulliesabusingtheirofficialpositionsbecausetheycangetawaywithit.We
willelaborateonthisatsomelengthelsewhere.
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EvenifEisenbergsGoodOldBoysareasortofclan,itsmembersmaybelievetheyaredoing
therightthing.EdwardH.Dixon,inTheTerribleMysteriesoftheKuKluxKlan(1868)identified
patrioticgovernmentofficersastheKlan:
"WhoisthestarryKutheRightHandoftheKuKluxKlan?"ThenIspoke:"Ibelievethemighty
starry Ku to be the power of the United States Government, as represented by its soldiers
stationedintheSouth.IbelievemanyofthesearemembersoftheholyKlan,andwillstrikefor
the white race, and crush the negro under their heel! I believe the Sinner to be the Radical
Congress,andthatitsownswordwillsmitethehipwhentheKlanisreadyforthespring.The
healthtobebornoutofrottenness,isthereconstructionoftheStatesafterthenegroraceis
swept away." Then the voice said: "Brotherand brother thou mayst bethou hast read
rightlythefirstpageoftheBookofKlan!"
Today,inMiamiBeach,disgruntledbusinessmenandresidents,intendingnoinsulttoItalians,
oftenrefertothepolice,fire,codecompliance,building,andparkingdepartmentsasamafia
and as members of a corrupt clan of Good Old Boys. Whereas the Klan outlaws disguised
themselves with white sheets and become members of the Invisible Empire of the South,
morally and criminally corrupt city officials cloak themselves with the invisible corporate
authority of the offices into which they narcissistically submerge themselves. Unless the
miscreantsarecaughtredhandedcommittingsomeflagrantmisdeed,whichisdifficulttodo
becauseitisunlikelythatpersonsgivingorreceivingspecialprivilegeswillcomplain,theyand
theirmunicipalcorporationaremagicallyshieldedfromliabilityasiftheywerekingsofoldin
possessionofcrowns.
Evenincasesofgrossnegligence,Floridaofficialsandtheiremployerswillclaimthesovereign
immunityofkings;forexample,aspertheunconstitutionalprecedentsetbythestatesupreme
courtinTrianonParkCondominiumsv.TheCityofHialeah(1985),whereinitwasproclaimed
that, The government clearly has no responsibility to protect personal property interests or
ensure the quality of buildings that individuals erect or purchase for there has never been a
common law duty to individual citizens for the enforcement of police power functions. Of
coursethatprinciplecanbeappliedtoallsortsofgovernmentfunctions.
Floridaisasortofswamplandinwhichpluralismthrives,andalotofpeoplelikeitthatway.
FloridalawyersaredisinclinedtochallengetheHialeahdisguiseforlocalcorruption,andjudges
are certainly disinclined to overturn it. After all, judges execute political legislation and are
legislators themselves, and as such they will do what is practical, finding their standards of
utilityandmoralityinthecommunitiestheyserve;inthatcapacitytheyareabsolutelyimmune
fromliabilityfortheirmistakes,atleastintheory.Whereforetheforlornpersonwhosuesthe
government should keep in mind, notwithstanding the socalled independent branches of
government,thatthegovernmentwillmakethefinaldecisionandshallbemorethanhesitant
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toholditselfliableunlessitispragmaticorpracticaltodosounderthesocialcircumstancesof
thetime.
Thereweretimesjudgeswouldfainenterthecourtroominwhitesheetsandhoodinsteadofa
blackrobe,recallingthatajudgewasshotandablackmandefenestratedincourtandthenhad
his throat slit while under guard during the Meridian Klan riots. Since Eisenberg is a Man of
Principlewhorefusestoloseandisinclinedtosueofficersofthecourtforbunglinghiscase,he
wouldtrytobringacivilrightsactionunderSection1983againstjudgeswhoruleagainsthimif
it were not for the U.S. Supreme Courts judicial legislation, 107 years after the Klan Act was
passed, in Stump v. Parkman (1978) holding judges absolutely immune from civil liability for
eventheworstbehaviorconductedunderthecoloroftheirrobes.
Ironically, the first arrest under the Klan Act was of a black freedman. Militant blacks were
angered.Thirtyofthemwouldbemurdered.PoliticalleadersassassinatedwhentheKlanran
riotthroughouttheSouthincludedArkansasCongressmanJamesM.Hinds,threemembersof
the South Carolina legislature, and several men who served in constitutional conventions.
Notwithstanding sovereign immunity, which despite statutory waivers still survives in the
United States because the great majority of people do love to be ruled, even absolutely
immunekingsmaylosetheirheads.
That is not to say for sure that City of Miami Beach officials deliberately attempt to deprive
Eisenberg and others of their civil rights with malicious intent. They may be mere bunglers
confusedbythecomplexityoflegalpatchwork,somethinglawyerswillbegladtomakesenseof
for fees. We cannot read their minds. Good intentions alone were good enough for Kant:
Nothingcanpossiblybeconceivedintheworld,orevenoutofit,whichcanbecalledgood,
without qualification, except a good will. Their intentions may be good for all we know
althoughwemayinferotherwisefromtheirconduct:Agoodwillisgoodnotbecauseofwhat
itperformsoreffects,notbyitsaptnessfortheattainmentofsomeproposedend,butsimply
byvirtueofthevolition.Theirinstitutionmayblindthemtothesystemiccorruptionevidentto
outsideobservers.Whatappearstoustobeadeprivationmayseemtothemtobetheireffort
toprotectthecommunityfromanassaultonitsmores,itswayofliving.
FloridahasalonghistoryofprejudicewithorwithoutKuKluxdisguises,solongthatitsurvives
as institutional blindness among persons with good intentions who discriminate against one
classofpersonsoranother.WerecallthatSouthBeachresidentsandbusinessesweregreatly
relievedbythecitysmassivepoliceresponsetotheannualBlackWeekakaUrbanBeachWeek
afterpoliceriotedonCollinsAvenuein2011,pumping116bulletsintoRaymondHerisseashe
sat in his car. Few cared whether the shooting was formally justified inasmuch as it was the
tippingpointthatledthepolicepowertodeployitstroopstorebuffthedescentofthousands
ofNegroesontothebeacheachyeartocelebratetheircolor.Quiteoffewweredisrespectful,
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and hundreds were arrested each year; most of the serious crimes were committed by local
blacksfrommetropolitanMiami.ThetroubledMiamiBeachpolicedepartmentwaspraisedfor
thecrackdown.
Justlastyearthecityfire,police,andcodecompliancedepartmentsshutdownanUrbanWeek
partyandfinedFloydBostic,theblackpromoter,athousanddollarsbecausetheythoughtthe
lawmightbebrokenbecausetherewasacrowdonthesidewalkatthenightclub.Heappealed
tothespecialmagistrate,therightarmofthecityprosecutinghim.Shedeniedtheappealon
thegroundthatheshouldbeliablebecausethewhitemanwhoownedthepropertyandthe
nightcluboperationwaslatepayinghisannualbusinesslicensetax.Thatmanhappenedtobe
Scott Robbins, the good old boy who runs the aforementioned unlicensed hotel on Espanola
way, and is with the mayor a partner with the city in a major parking lot, shopping center
development. The special magistrate seemed surprised to hear that the unassuming black
fellowevenhadtwentygrandtodepositwiththeRobbinscompany;moneythathelostthanks
toher;thatis,unlesshecarestosuetherealestatetitan.Anothertwentylargewouldhavehad
tobeshelledouttoalawyertoappealthecasetoarealcourt,atwhichtimethecityattorneys
wouldstepinwithvirtuallyunlimitedtaxpayerresourcestodefend.Notethatatpresentthe
citywants$800,000inlegalexpensesfordefendingagainsttheEisenbergsuit.
CityAttorneyRaulAguilaandCityManagerJimmyMoralesdidnotrespondtomyrequeststo
dismissthecaseagainstBosticorwaivethefine,whichtheyhavedonefortherightpeoplein
thepast.Theyandmostresidentsfamiliarwiththeeventprobablybelievethatthestatement
ofHernanCardeno,Esq.,theswornpoliceofficerwhodirectsthecodecompliancedepartment,
is true, that Bostic came down here to get away with something illegal knowing that officers
would have their hands full during Black Week. Good riddance, and may God bless them for
riding to the rescue before minors were served, people knifed and shot, women raped, and
propertiestrashed!Afterall,inaworldwherefaithinauthoritynotworkssaves,didtheynot
havegoodintentions?
AnnieCooperBurton,inherapologyfortheKlan,TheKuKluxKlan(1916),declaredthat,Their
purpose was to scare into submission the unruly free negroes and the troublemaking
carpetbaggers; and this purpose they accomplished, without one drop of blood being shed,
except in the most extreme cases. Whenever an undesirable citizen was not wanted, he
generallyfoundanotetackedtohisdoorsayingthatifhedidnotmoveonwithintwentyfour
hourshewouldbevisitedbytheKuKluxKlan.Signed"K.K.K,"Themangenerally"movedon"
long before the stipulated time. The stigma attached to the name Ku Klux Klan by the
uninformed masses has, at this late day, been practically removed, thanks to that Southern
author,ThomasJ.Dixon,whothroughTheClansmanswayedpublicopiniontherightway;and
thanks again to that master director, David W. Griffith, another Southerner, who filmed this
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wonderfulstoryandsetthepeopletoexclaiming,Why,theKuKluxKlanwasagrandandnoble
order!Itrankswiththebest.
ThomasDixonhadpennedamissionstatementfortheKlanin1868inTheTerribleMysteries
oftheKuKluxKlan:"WhoisthestarryKutheRightHandoftheKuKluxKlan?"ThenIspoke:"I
believethemightystarryKutobethepoweroftheUnitedStatesGovernment,asrepresented
byitssoldiersstationedintheSouth.IbelievemanyofthesearemembersoftheholyKlan,and
willstrikeforthewhiterace,andcrushthenegroundertheirheel!IbelievetheSinnertobe
theRadicalCongress,andthatitsownswordwillsmitethehipwhentheKlanisreadyforthe
spring. The health to be born out of rottenness is the reconstruction of the States after the
negro race is swept away." Then the voice said: "Brotherand brother thou mayst bethou
hastreadrightlythefirstpageoftheBookofKlan!"
ThomasDixons1905bookTheClansmanandD.W.Griffiths1915smashboxofficehitBirth
of a Nation inspired the 1915 revival of the Klan by Protestant nativists around Atlanta and
madeDixonamillionaire.Inadditiontotheusualblacks,therevivalistshatedJews,Catholics,
unions, and foreigners. The fact of the matter is that their predecessors killed thousands of
blacks after they were freed to roam the South in want of work, ten times the number of
people slain by the black militias that fought back. As for scaring blacks out of their wits, a
grandjuryin1870describedtheKlanasaterroristorganization.TheinfamousBlackCodes,
designedtomaintainwhitesupremacyandrestorethewayoflifeenjoyedbeforetheCivilWar,
prohibited colored people from owning property, entering into contracts, performing certain
kindsofwork,settlingincertainareas,marryingwhites,andsoon.Vagrancywasacrimefor
whichblackswerepickedupandsentencedtoworkforwhiteslandowners;poorwhiteswere
exemptedbypaupery.Freedomwasjustasbadasslaverytomanyfreedmen.
TheBlackCodesofFlorida,wherehundredsofblacksandtheirsupportersweremurderedby
the Klan, were some of the worst in the nation. Eisenberg and other Floridians subjected to
discriminatory enforcement and malicious prosecution nowadays for protesting against
inequity and injustice are not surprised to hear that police, prosecutors, and judges applied
Floridas facially racist Black Codes in a discriminatory manner according to their prejudicial
discretioninthosegoodolddayswhendecentwhiteFloridianslookedforwardtorestorationof
slaveryinthestate.
Mark Adams, a lawyer disbarred after accusing a judge of misconduct, said, after reading a
roughdraftofthisessay,TheKlanwasverymuchaliveinFloridainthe1980s.Youwouldstill
seetheminfullregaliainruralNorthFloridajust30minutesnorthofGainesville.Bytheway,I
servedintheNationalGuardfrom1980to86,andIwasaskedtojointheKlanseveraltimes.
TheyevengavemetheKlanjokebook.Itwasprettyfunny,butunfortunately,itdisappeared
alongtheway.Anyway,Ialwayssaidthanks,I'llthinkaboutit.Also,IthinkthatmostNational
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Guard and Reserve officers in Florida were Klansmen then. After all, that was always who
wouldaskmetojoin.Iexpectthatthesamecanbesaidformost,ifnotall,oftheSouthern
statesthen,andIdoubtitismuchdifferentnow.Afterall,whenagroupofscumbagsgetinto
power,theytendtoperpetuatetheirholdonpower.
Yes,thespiritoftheKlanliveson.JustlastyearFloridapoliceofficerswereaccusedofbeing
members of the Klan, and Klan members claimed even judges as their knightly brethren.
NowadaysonedoesnothavetobeblackorfemaleorgayorJewishorforeignetceteratohave
his civil rights violated: membership in the class of persons who overtly oppose the Invisible
Empirewhosemisdeedsarecloakedbythecoloroflawissufficient.
Now Eisenbergs attorneys must have thought they had a winnable case when they filed the
suitbasedontheKuKluxKlanActagainsttheCityofMiamiBeach.Onitsfaceitdidappearthat
the citys knights, its grand and noble city officials, had deprived Eisenberg of his civil rights
undercoloroflaw,andthattherewassufficientcircumstantialevidenceandwitnesseshostile
to the city regime to believe that direct evidence of culpability would turn up during
depositions.
No,Eisenbergisnotacoloredmannorisheamemberofasocalledprotectedclassotherthan
that class of beings guaranteed the natural right to life, liberty and property under equal
protectionsofthelaws.Yes,JewsandHispanicsonMiamiBeachwerediscriminatedagainstby
white Protestant settlers, but today Jews dominate the city commission and Hispanics
dominatedbyCubanAmericansrunthecityforthem.No,blackshavenotcaughtup;thecity
doesnothaveblacksonthecommissionormanagingthecity;manyofthemhavesanitation
jobs.
In any case brought under 42 U.S.C. 1983, the principles employed by Congress to protect
Negroespresumablyapplytoeverycitizenandnoncitizen:Everypersonwho,undercolorof
anystatute,ordinance,regulation,custom,orusage,ofanyStateorTerritoryortheDistrictof
Columbia,subjects,orcausestobesubjected,anycitizenoftheUnitedStatesorotherperson
withinthejurisdictionthereoftothedeprivationofanyrights,privileges,orimmunitiessecured
by the Constitution and laws, shall be liable to the party injured in an action at law, suit in
equity,orotherproperproceedingforredress.
Officialsandprivateindividualsactingundergovernmentauspicesarethereforeprohibitedby
lawfromabusingtheirpowerundercoloroflaw,pretendingthatthelawprovidesthemwith
discretionaryauthoritytobreakthelaw,todepriveothersoftheircivilrights.Thecomplexityof
lawincludingthecommonlawinterpretationsofconflictingstatutespatchedtogetherprovides
coverforabusesofpowerunderthecoloroflegality,muchtotheprofitofthelegalprofession
andthevestedinterests.
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Actual enforcement of the antiKlan Act relied on a plethora of different local codes that
underwentlessscrutinythanstatewidelegislation.Evenundermilitaryrule,localjurisdictions
wereabletocontinuearacistpatternoflawenforcementaslongasittookplaceunderalegal
regime that was facially raceneutral. The Supreme Court upheld racially discriminatory state
laws and invalidated federal efforts to counteract them. What Solomon said applies today to
the Sunshine State, swamped by laws that are selectively enforced and by irresponsible
pluralism:thereisnothingnewundertheSun.
No,theCityofMiamiBeachisnotaKuKluxKlanorganizationperse.AsforHonorableCecilia
M. Altonaga, the federal judge who threw out the case before it could get to a jury, she is a
highly esteemed member not only of the South Florida Establishment but of the most highly
privileged class, the authoritarian power elite of American, with all its biases and prejudices
including the feeling that authorities such as she should be nearly as immune as a sovereign
queenandthecrownestateordemesnefromliabilityforabusesofpower,fortherewouldbe
nolawthereforeanarchywouldprevailifthesourceoflawwerenotimmune.Theadmirable
juristisaYaleLawSchoolgraduate,amembertheCubanAmericanBarAssociation,andisthe
first CubanAmerica woman to be appointed a federal judge in the United States. Floridas
CubanAmericancommunitywantedtoseehersittingontheUnitedStatesSupremeCourt.She
wasreportedlyonPresidentGeorgeW.Bushsshortlistforthenomination,butretiringJustice
SandraDayOConnorsseatwenttoSamuelAlitoinstead.IfshewereamemberoftheInvisible
EmpireoftheSouthassuchoramemberofasubversiveorterroristorganization,shemightbe
impeached by Congress, which held its own members unimpeachable in the case of Senator
WilliamBlountlongago,butshewouldnotbesubjecttoSection1983sincetheU.S.Supreme
Courtgrantedtheirkindabsoluteimmunity.Theconstitutionaltortsnottomentionthecrimes
oflawyersandtheiraffluentclientshaveatendencytobelegalizedbymembersofthebar.
Altonaga is quite naturally subject to the parochial biases of the CubanAmerican community
thatpredominatesoverthelocalgovernmentsofSouthFlorida.The42ndCongressthatpassed
the Ku Klux Klan Act was perhaps overconfident in federal courts to overcome the parochial
prejudices of state courts. As Congressman John Coburn explained at the time, "The United
Statescourtsarefurtherabovemerelocalinfluencethanthecountycourts;theirjudgescanact
withmoreindependence,cannotbeputunderterror,aslocaljudgescan;theirsympathiesare
notsonearlyidentifiedwiththoseofthevicinage;thejurorsaretakenfromtheState,andnot
the neighborhood; they will be able to rise above prejudices or bad passions or terror more
easily. . . . We believe that we can trust our United States courts, and we propose to do
so."[Cong.Globe,42dCong.,1stSess.,460.]
Thatbeingsaid,weshallproposethatshemisappliedtheprinciplesoftheKuKluxKlanActthat
ledtoherfinalsummarydismissalofEisenbergscomplaint.Herlogicderivedfromconvoluted
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precedentstoabsolvethecityofliabilitywaserroneous.TheantiKlanactwasintendedtocurb
thedeprivationoffederalrightsbyvigilantesactingundercoloroflocalracistcodes.Thatcould
bedonebyholdingthevigilantesaswellaslocalofficialsaccountableinfederalcourts,andby
theusemilitaryforceagainstKlanmembersifnecessary,butnearlyalltheprosecutionswere
againstKlanmembers,andnotagainstpublicofficialssuchassheriffsridingwiththeKlan.
Although the City of Miami Beach, which is not the community but is rather its constituted
governmentwithabusinesslikeorfriendlyfascistconstitutionwithoutseparationofpowers,is
notaKuKluxKlan,thekuklosorclaqueorcirclethatdominatesitcanbeacirclejustasvicious
initsconductofbusinessalbeitmoresubtlyso.Andgivenitssovereignpoweritmaybeeven
moreunjustandirrationalthantheKlangiventhelegalizationofthemalfeasanceofitsofficers
narcissisticallysubmergedintheartificialcorporatepersonalitythatshieldsthemfromliability
in courts of law presided over by justices who themselves have reason to rejoice in the
immunityenjoyedbytyrantsofyore.
RodEisenbergcertainlydiscoveredthatitdoesnotpaytoexposecorruptofficialsandtofight
cityhallwhenyoubelieveitretaliatesagainstyou,fordoingsocreatesadebtgreaterthanthe
reward,especiallyifonedoesnottakethebigchanceandgoallthewaytotheSupremeCourt.
Thelowercourteventuallydismissedallsevencountsofhisoriginalcomplaint.Sothecitywon
7to0,andheisoutasmallfortuneinfeesandcourtcostsnottomentionthepsychological
distressheandhisfamilymustsufferasaconsequenceofhavinghisnoblecauseagainstthe
bulliesdismissed.
MindyouthattheproverbialFatLadyhasnotyetsung.AManofPrinciplehatestolosethe
cosmicstrugglebetweengoodandevil,andmaypursuehisprincipleuntilthedeathofTime,
wheretheprimitiveprincipleofthelaw,vengeance,isrealizedatlast.Inthiskindofsituation,
hemayattempttoreopenthecase,arguingfraudonthecourt,andsuethelawyersonboth
sides.
People kept tallies with marks on hides and cuts on sticks before they inscribed tales on
papyrusandparchment.Theprincipleofathingmaybeworthmorethanthemoneyatstake.
Eisenbergisnottalking,atleastnottothisauthor.Doubtlesshecouldtellataleofwoe,ofhow
certainCityofMiamiBeachofficialsactingundercolorofcivilizedlawretaliatedagainsthim,
wreakingprimitivevengeanceonhimforexercisinghisrightsasacitizen,andhowhesought
justice under the Constitution in federal court, where the citys cavilers played the summary
judgementgame,hemmedhiminwithlegalese,thenjumpedoutthewindowScotfreebefore
ajuryhadachancetoconsiderthefactsheandhislegalteamhadcollectedtoprovehiscase.
Thatisnottosaythatajurywoulddecideinhisfavor.Wecannotsaysobecausewearenot
allowedtoattendatrial,whereitmightbearguedthattheSadigo,afterservingtouristsand
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relativelypermanentresidentsfor70years,wascitedforarelativelynewfirerequirementin
2006aftertheplacesupposedlycametotheattentionofinspectorsbecauseEisenbergbuilta
cold food service area; so, instead of installing sprinklers he kept complaining and appealing,
operating without them for 6 years, although three professionals he retained through his
lawyersaidthesprinklersarerequiredforhistransientlodgingoperation;and,afterthehotel
wasshutdownthesecondtimeandhewasarrestedforservingalcoholwithoutalicenseand
forresistingarrestwithoutviolence,towhichhehaslatelyplednocontest,hefiledthefederal
complaint.Thejurymaywanttoknow,then,ifsavingmoneyisthemotive,orisittheprinciple
of the thing, since own Eisenbergs legal expenses, estimated at $650,000 to date, not to
mentionthecityslegalexpensesestimatedat$800,000whichtheywanthimtopay,exceed
the cost of installing sprinklers, estimated to be less than $100,000; to that we had damages
that bring the total upward of $4 million. The jury will want to see and hear evidence of
personaldiscrimination,orthattheordinanceitselfdiscriminatesagainsthiskind.
That being said, the summary judgment forgoing trial causes this author, pending further
investigation, to be more interested in the Constitution than the merits of the case. The
Constitution with its civil rights against the constituted government is a fulcrum for
controversiessubjecttoessentiallyirrationaljudiciallegislation,muchtotheprofitofthelegal
profession on both sides of controversies. Even the highest court in the land has rationalized
the gravest deprivation of the socalled natural rights against the tyranny alluded to in the
Declaration of Independence and elucidated as Amendments to the Constitution, and has
furthermoredoneitslevelbesttorenderfederalcivilrightslegislationuseless.
TakeforexamplethenotoriousCruikshankcasebroughtbytheUnitedStatesin1878underthe
antiKlan Enforcement Act of May 31, 1870, An Act to enforce the Right of Citizens of the
United States to vote in the several States of the Union, and for other Purposes, which
reasserted the Civil Rights Act of 1866 and was intended to enforce the Fourteenth
Amendments, and the Fifteenth Amendments, both of which provided Congress with the
powertoenforcetheirprovisionsbyappropriatelegislation.
Section6oftheEnforcement1870,uponwhichthegeneralchargewasbroughtreads,Andbe
itfurtherenacted,Thatiftwoormorepersonsshallbandorconspiretogether,orgoindisguise
uponthepublichighway,oruponthepremisesofanother,withintenttoviolateanyprovision
ofthisact,ortoinjure,oppress,threaten,orintimidateanycitizen,withintenttopreventor
hinderhisfreeexerciseandenjoymentofanyrightorprivilegegrantedorsecuredtohimby
theconstitutionorlawsoftheUnitedStates,orbecauseofhishavingexercisedthesame,such
personsshallbeheldguiltyoffelony,and,onconvictionthereof,shallbefinedorimprisoned,
orboth,atthediscretionofthecourt,thefinenottoexceed$5,000,andtheimprisonment
not to exceed ten years; and shall, moreover, be thereafter ineligible to, and disabled from
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holding,anyofficeorplaceofhonor,profit,ortrustcreatedbytheconstitutionorlawsofthe
UnitedStates.(16Stat.141)
Black Republicans and white supremacist Democrats disputed over 1872 election results in
Grant Parish, Louisiana. The Republicans armed themselves and took over the Colfax
courthouse. Democrats surrounded them with twice their number and took prisoners after a
threehourbattle.LedbyWilliamCruikshank,awhiteman,Democratsmurderedupwardsof40
prisoners. The general charge against the defendants was of conspiring and banding
together in violation of the 1870 Act to injure, oppress, and intimidate the Negroes in the
exerciseoftheirconstitutionalrighttovote.
Theyhadnosuchfederalright,statedChiefJusticeWaiteinthecourtsopinion,becauseThe
people of the United States resident within any State are subject to two governments: one
State, and the other National; but there need be no conflict between the two. The powers
whichonepossesses,theotherdoesnot,andtherighttovoteisbelongstothestate,notto
thenation,accordingtothepreviouslineofreasoningofthecourt:Fromthisitappearsthat
the right of suffrage is not a necessary attribute of national citizenship; but that exemption
fromdiscriminationintheexerciseofthatrightonaccountofrace,is.Therighttovoteinthe
States comes from the States; but the right of exemption from the prohibited discrimination
comesfromtheUnitedStates.ThefirsthasnotbeengrantedorsecuredbytheConstitutionof
the United States; but the last has been. Too bad that the government attorneys forgot to
mentionraceorcolorasspecifiedinthestatutes,notedthechiefcaviler:Itisnowherealleged
inthesecountsthatthewrongcontemplatedagainsttherightsofthesecitizenswasonaccount
oftheirraceorcolor.
Furthermore, they had no First Amendment right to peacefully assemble and Second
Amendmentrighttobeararms,forthoseamendmentswerenotintendedtolimitthepowers
of the states in regards to their own citizens, but to limit the operations of the federal
government.
As for the Fourteenth Amendment, The fourteenth amendment prohibits a State from
depriving any person of life, liberty, or property, without due process of law; but this adds
nothingtotherightsofonecitizenasagainstanother.Itsimplyfurnishesanadditionalguaranty
against any encroachment by the States upon the fundamental rights which belong to every
citizenasamemberofsociety.
Gee whiz, just what are the fundamental rights belonging to every individual against state
encroachment, and who is responsible for enforcing them? That depends on the social
prejudiceandindividualwhimofthejudgessittingonthebenchastowhatthegenerallawis

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regardless of the particular facts, providing that their decisions are respected no matter how
irrationalandunjust.
What the court actually affirmed and condoned in Cruikshank, in its interpretation of laws
intendedtoprotectblacksagainstwhitesupremacismandactsdeclaredterroristicbyCongress,
was white supremacism and terrorism. Who said the Invisible Empire of the South had
disbanded?
It is no wonder that Thomas Jefferson wanted to smother the Supreme Court in its crib and
plottedtounseatjudgesbywayofimpeachment,aprocesshesaidwasafarce.Anotionwas
bandied to let the Congress and not the court declare and legislate its intention, perhaps on
appealtotheSenateasifitwereaHouseofLords.Nothankyou,however,forweliveinthe
bestofallpossiblecountries.
NowinEisenbergafederaljudgehaserroneouslyreliedonaspeciouscommonlawdoctrine,
which is a species of the ancient principle sovereign immunity. Perhaps he has learned his
constitutionallessonaftertakingsovereigngovernmenttotaskforitsabuseofpower,thatfree
speechandtherighttopetitionthegovernmentguaranteedbytheConstitutionmayresultin
thedeprivationoftheveryrightsguaranteed.Heisnottalkingaboutthisdefeatatthehandsof
tyranny,atleastnotyet.CBSreportedhispromisetofightthiscasetotheendattheoutset,
butnowhehaspulledupshortofappealingonanissuefarmoreimportantthanhispersonal
injuries:thecourtfinallyheldthatthecity,asamatteroflaw,isnotliableforthedeedsofits
employees,aswouldbetheemployeesofaprivatecorporation,sogameover.
#

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CityAttorneysRaulAguila&AleksanderBoksner,DeveloperRodEisenberg

CITYOFMIAMIBEACHATTORNEYSSEEKAPOUNDOFFLESH
RodEisenbergMaySueHisAttorneysAsUsual
3March2015
ByDavidArthurWalters
MIAMIMIRROR
In hearing litigations, I am like anyone else. I differ, in wishing to prevent these litigations.
Confucius
Again and again Rod Eisenberg fought the law, and the law won again and again. There is
nothingbetterthelawlikestodothankickadogwhenheisdown,especiallywhenheisasore
loserandgetsbackuptimeandtimeagain.Sure,weadmireperseveranceinamanofprinciple
unlessheisaselfrighteousfool,inwhichcasewemayenjoyseeinghimhumiliated.
Rightorwrong,MiamiBeachisthelastplaceamanofprincipleshouldbeifhewouldpicka
fightwithitsgovernment,forheissuretoloseevenifheisrightunlessheisoneoftheGood
Old Boys that Eisenberg could by now himself be if only he would have laid down for them
withoutwhiningadozenyearsagoinsteadofexposingthetruthandbearingagrudgetothis
veryday.
Whatisthetruth?agovernmentofficialfamouslyaskedofamanofprinciplelongago.Have
a glass of vodka and view the depressing movie Leviathan filmed inRussia for an answer. A
powerful corrupt official causes a good mans home to be seized and destroyed for what he
believesisagoodi.e.apubliccause.Thevictimslawyer,hisbrotherfromMoscow,seduceshis
wife,buthetakesherbackbecausesheisagoodwomanbecausehelovesher.Thelawyertries
toblackmailthegovernmentofficialwithscandaloustruthsabouthispastinMoscow,sothe
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officialandhisthugsrunhimoutoftown.Thegoodwifeisashamedofherindiscretion,gets
outoftheinnocentmansbedashesleeps,walksawayfromthesoontobedemolishedhouse,
and throws herself off a bluff into the raging ocean. He is arrested when her body is found,
convicted of her murder, sent off to prison. Of course his son must be adopted. A preacher
compareshimtoJob,asifhewouldbehappilyreconciledwiththeworldinhisoldagedespite
histravail.ThegovernmentofficialandhissortcelebratethesurvivaloftheRussianOrthodox
Church, cursing other denominations, and he speaks of the truth. What is the truth? Truth is
god.
LetEisenbergbewareofthetruthbeforeheisutterlyruined.Hismostrecentsuitagainstthe
citywasruinous,andtheproverbialfatladyhasnotsungherariayet.In2006officialsclaimed
hisstatelicensedSadigoCourtyardApartmentHotelinSouthBeachwasatransienthoteland
notatransientapartmentbuilding.Therefore,theysaidhewouldhavetogetitcertifiedasa
hotel,whichheattemptedtodo.Butthentheofficialssaiditwasanewhotel,anddemanded
thatheinstallfiresprinklers.Herefusedbecausehebelievedthefirestandardsprovidedforan
unspecifiedprotectionmethodthatwouldbeequivalenttofiresprinklers,andthattheywere
using the fire protection code as a pretext for retaliating against him for exposing the truth
aboutGoodOldBoysbackin1993,suingthecityoverandover,andraisingamorerecentstink
aboutablightedbuilding.
He held the government hounds at bay at the Sadigo for around five years, until the hotel
apartmentbuildingwasfinallyraidedin2011.Hisguestsweretossedontothestreetwiththeir
luggage,andhewasarrestedandchargedwithresistingwithoutviolence.
Hesuedinstatecourt,andin2013broughtafederalcivilrightscaseundertheKuKluxKlanAct
of 1871 for damages and legal feesin federal court. Installation of fire sprinklers would have
cost him upwards of $100,000. Now his exposure is around $4,000,000 all told, including his
damagesforclosureofthebuildingandrefinancing,federalcourtcoststaxedat$70,000,and
$800,000 in legal fees the city wants from him and his lawyers on the grounds that his suit
againstthecitywasfrivolous.
Hisownlawyersfeesinthiscasealoneareestimatedat$600,000.Hopefullytheyhavebeen
paid in full, because Eisenberg, a proven sore loser, is in the habit of suing his lawyers when
theylose,astheyalwaysseemtodowhentakinghiscases.HeisavirtualATMforlawyers.He
doesseemtohaveawinnablecase.Thelawyersarenoslouches.Heseemstohavebeenborn
tolosewinnablecases.
He is probably right about retaliation. This is not really about fire sprinklers. City officials are
nicewhenyourolloverandbeg,thuggishwhenyougrowlandbarkatthemwithbaredteeth.
Old timerswill tell you that you can be sure of selectiveenforcementof the lawsin the city,
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wheretheprincipleofretaliation,theprimitivefoundationoflaw,istherule.Theofficialsare
usually tolerant if not downright negligent unless they have to enforce the law because
someonenagsthemorthebreachissoglaringthatmainstreammediatakesnoticebloggers
are simply denouncedas delusional terrorists. Otherwise officials snag someone at random
hereandtheretocreateanappearanceofproprietyandjustifytheirpaychecks.
Listenup:justlickyourwoundsandmoveonfortherewillbemoreopportunitiestomakea
killingdownthelineandgetawaywithitbecausenooneisthewiser.Donotbeasoreloserif
youwanttowininthistown.
EisenbergwasvexedbythesocalledGoodOldBoysbackin1993whenhisbidforspaceatthe
oldcityhalltorunanArtDecoWelcomeCenterwassubmittedtoolate.Hefoundoutthatthe
sole bidder remaining was already getting space in the building rent free. He brought suit
against the city. The discovery process brought to light apparent hanky panky between city
officialsandanofficerofIRAMCO,thebrokerinvolvedinCityofMiamiBeachRedevelopment
Agency'spurchaseoflandforthedevelopmentofthecitysfirstconventionhotel,nowLoews
Hotelat1601CollinsAvenue.
Thediscoveryofunseemlyrelationshipsarenotthatsurprisinginthisrelativelysmallcitywitha
long history of corruption, as something slimy can be found under almost every rock
overturned,nottomentionthescumthatrisestothetopinthewarofallagainstall.
As for Eisenbergs October 1, 1993, suit on the particular issue, his late bid for space to do
business at the old city hall, it was a complete flop. Case No. 9318659 on the complaint
broughtagainstthecityandIRAMCOwasdismissedonOct.10,1994:
ORDERED and ADJUDGED that Plaintiffs Rod Eisenberg and/or Tricia Touring Company of
SouthBeach,Inc.werelatebiddersforCityofMiamiBeachRFPNo.8292/97,andtherefore
lackstandinginordertomaintainthisaction;andPlaintiffshavefailedtoproduceanycredible
evidence substantiating a finding of fraud or conspiracy on the city of Miami Beach's part.
Accordingly,DefendantCityofMiamiBeach'sMotionforSummaryJudgmentontheAmended
ComplaintisgrantedandFinalJudgmentisenteredforDefendantCityofMiamiBeach.
EisenbergsallegationsinthatsuitcausedJoeCentorino,thestateattorney,tobegaskanceof
CityAttorneyFeingoldandCityManagerCarlton.Hefoundnogroundsforcriminalcharges,the
city paid their legal fees, yet he referred the allegations that a city commissioners son had
received commissions on the deal to the state licensing agency. It imposed fines for
misconduct.
Eisenbergwouldnotwalkawaywithalosstopursueawinsomewhereelse.Hejusthadtosue
his own attorneys, city attorneys, and other officials public and private for the conspiracy
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against himsometimes paranoia is justified. State circuit court Case 9500364 was filed on
January 9, 1995, versus his lawyers, Holtzman, Krinzman, Equels, Sigars & Furia, P.A.. and
SeymourGelber,Individuallyandinhisofficialcapacity;LawrenceFeingold,individuallyandin
hisofficialcapacity;RaulAguila,individuallyandinhisofficialcapacity;AbeResnick,individually
and in his official capacity; Niesen Kasdin, individually and in his official capacity; Martine
Shapiro, individually and in his official capacity; Sy Eisenberg, individually and in his official
capacity;SusanGottlieb,individuallyandinherofficialcapacity,RogerCarlton;IRAMCO,INC.,a
Floridacorporation;MyronGreenbergandJamesResnick.
Eisenbergwouldeventuallydroptheracketeeringcountfromhiscomplaintthatthedefendants
had conspired to prevent him from successfully bidding for the lease of city premises, and
droppedtheofficialsasdefendants.ThecasefinallybecameadeadhorseonJuly1,1998,when
thecourtdismissedthecaseagainsthisformerlawyers.
Eisenberg would not lie down. He appealed in respect to the city and Iramco. The judgment
againsthimwasaffirmedonJuly7,1998,Case973659(714So.2d613):
Rod Eisenberg appeals an adverse summary judgment in his independent action for relief
from judgment. He sought to reopen a 1994 judgment in which he protested the award of a
lease by appellee City of Miami Beach to appellee Iramco, Inc. Iramco submitted the only
timely, responsive bid. We entirely agree with the trial court that the matters Eisenberg
attempts to raise in his current action for relief from judgment, see generally DeClaire v.
Yohanan,453So.2d375(Fla.1984),aresubstantiallyidenticaltomattersraisedandadjudicated
inpreviousproceedingsagainsttheCityandIramco,includinganearliermotionforrelieffrom
the1994judgment,andanotherlawsuitbyEisenbergagainsttheCity,Iramco,andEisenberg's
formerattorneys.Eisenbergalsoappealstheorderdenyinghismotionfordisqualification.This
motionwasmadeafterthecourtenteredsummaryjudgmentinfavoroftheCityandIramcoin
thisproceeding.Thetrialcourtproperlydeniedthemotion.Aclaimthatatrialjudgehasmade
anerroroflawisnotabasisfordisqualification.Inthecourseofdeliveringhisruling,thetrial
judgetoldEisenberginessencethatthelawsuitwaswithoutmeritandthatifhefelttherewas
wrongdoingbytheCityorIramco,heshouldfilecomplaintswiththeappropriateauthorities.
Thosestatementswereentirelyappropriateandnotabasisfordisqualification.
WenoticethatEisenbergfromtimetotimehasappearedprosei.e.representedhimselfinone
caseoranother.Hetrainedtobecomealawyer,andisapparentlyafrustratedlawyer.Perhaps
hewouldbeasuccessfullawyerifhecouldfindtheclients;ifnot,hecouldgotoworkforthe
cityifheplayedhiscardsright.Ifhehadhandledhislosingvindictivesuitswithoutlegalcounsel
hemayhavebeenadjudgedavexatiouslitigantandbarredfromfilinganymoresuitswithout
advanceapproval.Withalawlicense,hecouldfileasmanysuitsashewantsandlosethem,
althoughriskingstifffinancialsanctions,whichdoesnotseemtostophimwithoutalawlicense.
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Well, he seems to have learned his lesson, confining himself to complaining about official
negligence in respect to a blighted building owned by a fellow hotel developer. Official
negligenceisrathercommonintheCityofMiamiBeach.Again,ifyouarenice,especiallyifyou
areaGoodOldBoyoramemberofthefavoredcliqueatthetime,thendonotworrytoomuch
abouttheviolationsunlessyoumakeanenemyofsomeone,andeventhenthefinesandliens
canbefixedafterthecasebecomessooldnobodyiswatching.
But then city inspectors nosed around his Sadigo apartment hotel and played hard ball with
him. He hired lawyers Jeffrey Bercow & Company after receiving Fire Marshals Notice of
Violationtoassisthiminresolvingthatissue.TheFirmsrepresentationwaslaterexpandedto
includethechangeofusethattheNoticeofViolationorderedEisenbergtoobtainfromthe
BuildingDepartment.
An engineer and an architect were retained by Eisenberg via the law firm; they believed fire
sprinklerswererequired,thearchitectsayinghewouldnotrisklosinghislicensebytestifying
otherwise,causingEisenbergtodisavowanyrelationshipwiththemanddescribethemasshills
forthecityinhissuitagainsthisformerattorneys.Thestatecourtnotedthatanappealtothe
MiamiDade County Board of Appeals with the assistance of fire engineers was rejected. The
factthathepursuedhiscauseandlostallalongthewayseemedtoprovehimwrongtobegin
with.Hiscase,filedonJuly7,2011,incircuitcourtagainstJeffreyBercowandBercowRadell&
Fernandez,wasdismissedasasham,andhisappealwasdismissedonJanuary26,2015,with
somelengthyfindingsandconclusions,suchas:
Plaintiffs entire pleading is predicated upon the notion that the City would have voluntarily
acquiesced to the Sadigo Courts operation without sprinklers if the defendant attorneys had
simply advanced the correct arguments. The court finds that this contention is demonstrably
false.TheverysameargumentsPlaintiffhasadvancedbeforethecourtinthisproceedinghave
beenraisedunsuccessfullyonnumerousprioroccasions.Ineachinstance,theCitywasgivenan
opportunity to accept the arguments Eisenberg claims would have provided a solution to his
problems.Instead,theCitysummarilyrejectedtheseexactpositions.Indeed,Eisenbergsown
attempts to avail himself of his supposedly winning strategy resulted in the precise type of
extendedlitigationhenowclaimscouldhavebeenavoided..EisenbergclaimsthattheCitys
intransigence was due to its personal vendetta. That allegation alone completely refutes
Eisenbergs claims in this case. The degree of direct contradiction between Eisenbergs
pleadingsinthissuitandtherecordoftheunderlyingadministrativeandtrialcourtproceedings
provide a sufficient factual basis to justify striking this complaint as a sham pleading. The
Court also finds that the Plaintiffs central allegation, i.e., that his losses were proximately
causedbythenegligenceoftheDefendants,isdemonstrablyfalse.Thiscasethereforemeets
theadmittedlyhighburdensetforthinRheav.HackneyandothercasescitedbytheDefendant
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in support of the summary disposition of frivolous cases. The Court notes that a thorough
review of the underlying record reflects that many of the contentions pled in the Plaintiffs
complaintaresimplytooillogicaltosupportanyinferencesintheirfavor.
The federal court had dismissed the crucial or most likely provable civil rights counts of his
complaintsonMarch23,2014.TherestofthecasewasforeverlaidtorestonDecember16,
2014. That is, if Eisenberg does not attempt to have it reopened, asserting some new facts
and/orfraudonthecourtbyconspiringcityattorneysandtheirshills.Hedecidednottoappeal
thesummarydismissaltotheSupremeCourt.
Thatappealwouldnothavebeeninaccordwithhispersonalvendettabutmayhavebeenof
national importance because the dismissal was based on specious judicial legislation that a
municipalityshouldnotbeliableforthedamagingandinjuriousmisdeedsofitsemployeesif
somehigheragencycanbeappealedto.Thecourtsthemselveshavecondonedandsponsored
some of the worst human rights violations the nation has ever witnessed. However, the law
doesevolveagainsttheprejudicesofregressives.
Thisisnottosaythatpersonalvendettaspursuedtotheend,asEisenbergpromisedtodowith
thiscaseinthebeginning,donothavegoodresultsforthecommunity.Theycertainlydo,and
he may still be our David against Goliath in that respect if he is right. Otherwise people will
respondtoHeisrightwithSowhat?
NowtheCityofMiamiBeachwantshundredsofthousandsofdollarsforitsattorneyfeesfrom
Eisenbergandhisnowdismissedlawfirm,Smolker,Bartlett,Schlossler,Loeb&Hinds,PA.,and
Jacob Cremer, its lead attorney on the case, on the grounds that the suit against it was
frivolous. The case is stayed until the end of March. If that motion is filed it may itself be a
frivolitysinceanylawyernotpaidtothinkotherwisewouldseethatEisenberghadreasonable
cause to suspect that his civil rights had been violated, and that there was a fair chance of
obtainingaremedyforthedeprivationinfederalcourt.Butwhoknowsforsurehowanycourt
willrulenowadaysgiventhetopsyturvyhistoryofjudiciallegislation?Thecourtmayaffordthe
citywitharighttoapunitivepoundofflesh.
Inanycase,wewillnotbesurprisedIfEisenbergturnsaroundandsueshislatestattorneys.No
holdsarebarredinthisdirtybusiness.Wewillundoubtedlyhavemorelitigation.SometimesI
havelittlerespectforthehumanrace,andwouldhaveevenlessifIwerenothuman.
#

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PhilipLevine,thecurrentMayorofMiamiBeach

THECITYOFMIAMIBEACHCANDONOWRONG
NeitherCantheCounty,theState,andtheUnitedStates
March10,2015
MIAMIMIRROR
ByDavidArthurWalters
RodEisenbergisthoroughlyintimidatedinrespecttohisconstitutionalrighttofreespeech.The
legal system has potentially cost him $4,000,000 for his refusal to install $70,000 of fire
sprinklersinhisbuilding.No,sir,heisnottalkingabouthishumiliatingdefeatatthehandsof
localfederaljudgeCeciliaM.Altonaga,whosaidthattheCityofMiamiBeachwouldnotliable
for violating his civil rights because it did not make the policy requiring fire sprinklers in his
historic thirtyapartment Sadigo Courtyard Apartment Hotel, which had been housing
transientswithoutthemforseventyyears.
OfcoursetheSadigo,whichsitsinamediumintensitycommercialdistrictnearthebeach,was
nottheonlyhotelapartmentbuildingonthebeachaccommodatingtouristsandvacationers.
Miami Beach has been famous for shortterm rentals for many years, especially the socalled
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SouthBeachareawheresoldierswerehousedduringthewarinthebarrackslikehotels,andit
is no secret that landlords of buildings and condominium owners in residential districts have
alwaysbeenmorethangladtoletoutapartmentsforafewdaysorweekstovisitorsfromall
overtheworld.
As Miami Beach, once known as a poor mans paradise, became more popular and
stereotypicallygreedydevelopersarrived,relativelypermanentresidentsraisedaclamorabout
traffic and noise. Transient rental apartment and hotel usage would be zoned out in certain
low and mediumdensity multifamily areas, notwithstanding exceptions grandfathered
therein.
The very fact that the city had passed special ordinances zoning out transient apartment
buildings in lowdensity residential multifamily districts with the exception of those buildings
that could prove they had been using their buildings for shortterm rentals, had them
registered with the state as transient apartment buildings, and had been paying local resort
taxesallalong,demonstratesnotonlythatthecityhadpermittedthemtoconductbusinessas
such,butalsosupportsthepropositionthatthecitywasindeedthepolicymakerovertheiruse
contrarytotheopinionofJusticeAltonagadismissingEisenbergscase.
Those qualifying buildings within the Espanola Historic and Flamingo residential districts, for
example,wererequiredtoobtainnewcertificationsforcurrentusebyJanuary2011,andthat
wouldrequirecompliancewithFloridasfiresafetycodes,whichprovidesthatsprinklersdonot
have to be installed in smaller buildings, and equivalent systems can be substituted in larger
buildingsofthreestoriesormore.
However,notonlyhadtheSadigobeenlicensedbythestateasatransientapartmentbuilding
regularlyinspectedbyfireinspectors,andnotonlyhadEisenbergbeenpayingresorttaxes,the
Sadigo is in a commercial district where hotels and apartment hotels are indeed allowed by
local zoning ordinances, wherefore no special zoning with grandfather clause was made nor
wasitneededthere.Indeed,nouniformlawcouldbefoundinthelocalordinancesthatsaid
sprinklers must be installed without exception in the historic buildings in that commercial
districtbyacertaindate.
However that may be, certain state fire code provisions adopted from national standards
exempted small historical buildings, and any safety system equivalent to fire sprinkler
exceptionwasmadeforlargerhistoricalstructures.Localauthoritieshaveconsiderablelatitude
to determine what sort of system is equivalent to automatic fire sprinkler systems, thus
appealstothecountyboardaremostlikelyfutile;thereagainlocalpolicymakingauthorityis
apparent.TheSadigohasthreestories,soEisenberginsistedthatifhewererequiredtomeet
thestandards,whichhereallyshouldnothavetodoinhiscommercialdistrict,thenhecould
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havesomeequivalentfiresafetysystemthatwouldnotdamagethehistoriccharacteristicsof
thestructure.
Thefactofthematteristhatscoresoftransientrentalapartmentswithoutshorttermrental
certifications operate in the city under the radar with impunity until someone complains or
theyaretaggedatrandom.Forinstance,Eisenbergsoldschoolchum,ScottRobins,apowerful
politicalfigure,ranhis12unitEspanolaWaySuitesupstairsonthetoptwofloorsofhisbuilding
on Espanola Way for several years, and paid no resort taxes, even after his application for
transientapartmentusagewasdeclined,untilsomeonehealienatedpubliclyblewthewhistle
onhiminlate2014,finallycausingofficialstoactorbeembarrassedfornegligence.
Why me? Eisenberg must have asked when officials declared the Sadigo must have
sprinklers.Theanswercametohiminaflash.HehadagrudgeagainsttheGoodOldBoys,and
hadbeenapainintheasstoofficialsforfifteenyears,eversincehisbidforspaceattheoldcity
hallwasrejected,assubmittedtoolate,infavorofapartywhowasgettingfreerentthere.He
wasalwayscomplainingabouttheircorruptionandnegligence,andsuingthemandtheircityin
vainonseveraloccasions.Heavenforbadeit,buthehadeveninterferedwiththesweetheart
dealthatresultedinthecitysflagshipconventionhotel,theLoewsHotel,andhadopposedthe
favorabletaxtreatmentoftheconventioncenterdistrictasacompletelyunnecessaryboonto
theGoodOldBoys.
Shortly before the Sadigo was redflagged, he raised a stink about the blighted building next
door, owned by an influential hotel developer. And then, alas, he designated a room at the
Sadigo to prepare cold food. The city said the room was a restaurant, and claimed that the
transient apartments, which by definition already had cooking facilities, had now become a
brand new hotel requiring sprinklers, thus, in a way, admitting that his hotelapartment
buildingwaspermittedfortransientrentalsasanapartmentbuilding.Wherefore,afterabribe
wasallegedlysolicitedtooverlookthemoderndefect,thefiremarshalconsideredthestructure
to be in imminent danger due to the cold food and issued a cease and desist order.
Imminent danger is specified by the citys Code of Ordinances 5011(i) as prerequisite to
issuanceofaceaseanddesistorder.WemaysupposethatJewsandMuslimsshouldbeware
especially of the ham sandwiches with kosher dill pickles inasmuch as they may selfcombust
whenconsumed,convertingpeopleintohumantorches.
Thatwasfollowedbyatemporaryclosure,andthenanevictionoftenantsandcompleteshut
down,andthearrestofEisenbergforobstructingtheclosureheplednocontesttoacharge
ofresistingarrestwithoutviolence.Hebroughtafederalsuitagainstthecity,asserting,under
42U.S.C.1938oftheKuKluxKlanActof1871,thatthecityhadviolatedhiscivilrightsunder
coloroflaw.
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Judge Altonaga finally dismissed the case, saying she had to wash the citys hands of
responsibilitybecausethepolicymakingcitywasnotthepolicymakerbecauseEisenbergcould
have pursued appeals with county board; wherefore the city, whose charter identifies it as a
businesslikeorfascisticcorporationwithoutanybranchesorseparationofpowers,isimmune
by that qualification although corporations in the private sector are responsible for damages
donebytheiremployeeswhileatwork.SonowthelegalsystemispotentiallyintoEisenbergfor
$4,000,000forhisrefusaltoinstall$70,000offiresprinklers.
Willtherealpolicymakerpleasestandupandbeidentified?Ifthecityisnotthepolicymaker
because its policy can be appealed to a county board that will affirm the local discretion to
make policy, the Eisenberg should have sued the county as policymaker, correct? But then
Altonagawouldhavetoexemptthecountybecauseitisauthorizedbystatestatutetohandle
firesafetyissuesforthestateasdictatedbythestate,andlocalamendmentstothefiresafety
codemustbeatleastequaltoormorestringentthanthestatecode,andhavetobeapproved
by the state, so the city as well as the county enjoys qualified immunity because it is
theoreticallynotthepolicymakeraswell.
Allright,hecouldsuethestate,correct?Well,ArticleIIIoftheConstitutiondoesnotexpressly
extendfederalcourtjurisdictionoverlitigationbetweencitizensandtheirrespectivestatesyet
it does provide jurisdiction over all cases involving federal issues. In Chisholm v. Georgia
(1793),asuittocollectmoniesowedbyGeorgetoacitizen,thecourtheldthatcitizenscould
indeedsuetheirownstatesandotherstates.
Thatforeignstatescouldsuestatesdidnotsitwellwithstatepoliticians,thereforetheEleventh
Amendment(1795)wasconcoctedandratifiedtoprovidethatacitizenofonestatecannotsue
anotherstateinfederalcourtnorcanacitizenofaforeigncountrysueastate.
AndthenthereveredSupremeCourt,citingthegeneralprincipleofsovereignimmunityinthe
caseofHansv.Louisiana(1890),judiciallylegislatedagainstallowingfederalcourtstoentertain
suitsbycitizensagainsttheirownstateswithouttheirconsent.
No,theEleventhAmendmentdidnotactuallysaythat,admittedtheHanscourt,butthathad
to be what the ultimate sovereign, We The People, had meant, that their state governments
were sovereign or above the law, when the amendment was put forward by their federal
government and ratified by their state governments, for it would be shocking to say that a
citizen of one state could not sue another state but could sue his own state. And that does
seem rather shocking or logically absurd unless one accepts the implied analogy between a
foreign state and a state of the union, purportedly sovereign until the Civil War sealed the
unionforeverinbloodunderacentralgovernment.Sovereignstateswillrecognizetheirown
citizensintheircourtsbutarenotinclinedtorecognizeforeignstates.
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ThemistakeoftheChisholmmajority,saidtheHansmajority,wasinbeingswayedbyaclose
observance of the letter of the United States Constitution to approve of something that its
minoritysaidwasnotthecustomandhadneverbeendonebefore,torepudiatetheprinciple
ofsovereignty,thatrexnonpotestpecarethekingcandonowrong.Werecallherethatthe
court in United States v. Thompson (1879) observed that When the colonies achieved their
independence,eachonetooktheseprerogatives,whichhadbelongedtothecrown."
However, every fifth grader should remember that independence was declared because the
English king did in fact do wrong. Kings could be deposed and beheaded; therefore, it
behoovedthemtopermitsubjectstosuethempeaceablybygrantingthempetitionsofrightas
a formality. Anyway, the colonies cast off the crown and formed a more perfect union in a
written constitution, forged by, for, and of the people, unprecedented by cowering judicial
precedents.
The common law is not only case law; common law also comprises judicial interpretation of
constitutional and statutory law. Lawyers were destined to dominate life in the American
states.ItdidnottakelongfortheirSupremeCourttocrownitselfinthenameofindependence
from the other imaginary branches of government, abuse the will of The People in its
prejudicial interpretations of civil rights, and bestow sovereign immunity on all branches of
government.
As we wade through volumes of judicial opinions subverting justice over the years, we may
come to sympathize with the state of Jeremy Benthams statement in his Outlines of Judicial
Procedure, that commonlaw judges, in different groupes in some instances collectively, in
others severally (shared among them as they can agree,) possess and exercise a power of
makinglawofmakingthatwhichhasthebadeffect,withoutanyofthegoodeffectoflaw,ad
libitum, without any controul but that of a legislature, which is in league with them by a
community of sinister interest, and leaves to them the charge of exercising depredation and
oppression, in cases in which fear or shame would prevent its operating to that effect by its
ownhands,exceptthattheAmericanlegislaturedoesnothavesovereigntyasitdidinEngland
inhistime.
WhattheunconstitutionalHansjudiciallegislationmeant,forexample,inthecaseofdebt,is
thatifsomeoneloanedastatesomemoneyandthestatedefaulted,thelendercouldnotsue
the state for the balance unless the state first consented to be sued, which states would
eventuallydoinadvancebywayoflegislationeffectivelywaivingtheirsovereignimmunityin
respect to contractual obligations, for who would want to do business with a potential
deadbeatunlessthecourtshadjurisdictiontoorderwithdrawalsfromitstreasury?Manystates
and the federal government would eventually waive sovereign immunity in respect to non
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contractual liabilities i.e. torts under certain circumstances. However, constitutional torts are
anothermatter,forwhosoevercontrolstheconstitutionalprocesscontrolsthenation.
The Chisholm court, which was closest to the historical Constitution, did a good job of
recounting the history of sovereign immunity of the Kings of England as a tentative,
precedential common law source for prejudice in favor of authority in the newly united
American states. English subjects had to petition kings for the right to sue them, a process
calledapetitionofright.Thepetitiondemonstratedallduerespectforauthorityandappears
tobecourteouslygrantedasamatterofcourse,thuspermissiontosuekingsandqueenswas
one of several civil rights obtained. However, under Saxon governments prior to the reign of
EdwardI,kingscouldbesuedascommonpersons.
InChisholm,JusticeIredell,whosereasoningprovidedthemodelfortheEleventhAmendment,
presumed that the common law of England was the basis of laws common to the American
statessowasinforceinAmericaasitwasinEnglandtotheextentnotreplacedbystatutes.
Governorsarenotanalogoustokings,norarecorporationsanalogoustotheAmericanstates,
soancientlawdoesnotapply,andneitherdoesInternationallawsincestatesarenotnations.
TheConstitutionissilentonthequestion.Anewlawisrequiredtocoverthecase.Thedecision
ofthecourtallowingcitizenstosuestatesinfederalcourtsfordebtswouldconstituteextra
judicialpolicy.Hisownpredilectionwasagainstanysuchconstructiveinterpretation.
The Supreme Court has never lacked minority dissenters on the question of sovereign
immunity. More recently, dissenting justices in Alden v. Maine (1999), referring to previous
dissentonthequestioninSeminoleTribevFlorida(1996),insistedthatneithertheConstitution
nor the Eleventh Amendment, which only expressly applies to diversity jurisdiction, actually
providesstateswithimmunityfromsuitsbroughtbyitsowncitizens.TheFramersdidnoteven
mention the sovereign rights of states, and the issue of sovereignty per se was not an
immediate subject of debate at the constitutional convention. The colonies did not have the
sovereignimmunitythenewstatesclaimtohaveinheritedfromthecolonies;onlythecrown
hadsovereignimmunity.Nordidthenewfederalconstitutionestablishsovereignimmunityfor
theconfederatedstates.Sovereignimmunityisnotbasedoncommonlawbutonatheoretical
conception of natural law, restated by Alexander Hamilton but not accepted by the Framers,
and there is no ban on tampering with it or altering the conception since it is mere
presumption.
ThereisalmostnoevidencethatthegenerationoftheFramersthoughtsovereignimmunity
wasfundamentalinthesenseofbeingunalterable,pronouncedJusticeSouterforthedissent
inAlden.Whetheronelooksattheperiodbeforetheframing,totheratificationcontroversies,
or to the early republican era, the evidence is the same. Some Framers thought sovereign
immunitywasanobsoleteroyalprerogativeinapplicableinarepublic;somethoughtsovereign
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immunitywasacommonlawpowerdefeasible,likeothercommonlawrights,bystatute;and
perhaps a few thought, in keeping with a natural law view distinct from the common law
conception,thatimmunitywasinherentinasovereignbecausethebodythatmadealawcould
not logically be bound by it. Natural law thinking on the part of a doubtful few will not,
however,supporttheCourt'sposition."
Justice John Paul Stevens, champion of a constitutional amendment that would expressly
renounce the falsely construed principle of sovereign immunity, provided mindboggling
casuistry in Seminole that would allow a court to cite the Hans decision against the Hans
decision,asifthereasoninginHanswereincompleteinasmuchasprecedenthadnotgottento
thepointthatacourtshouldpresentlymake.
NowhowdoessovereignimmunityappertaintotheEisenbergsuitfiledin2013intheUnited
States Court of the Southern District of Florida under Section 1983 of the Ku Klux Klan Act
passedbythe42ndCongressin1871?ThatSectionprovidescivilremediesagainstpersonswho
deprive people of their rights under color of law. It was passed before the Fourteenth
Amendment,whichprovidesthatCongresscanmakelawstoenforceobservanceoftheright
against government of due process and equal protection of the laws. The Supreme Court,
setting itself up as sovereign over Congress, in marked contrast to the hoary tradition in
England,until2009,whereParliamentwassovereignandthesovereigninhiscouncilsittingas
a final court of appeal in the House of Lords, declared that any legislation enforcing the
Fourteenth Amendment should expressly abrogate the sovereign immunity of states it
presumably implied from the Eleventh Amendment. So Section 1983 and other civil rights
statutes were left in the lurch, so to speak, a lurch being the gate of a church where coffins
wereplacedforpickupandtransportationtothecemetery.
LoandBeholdthattheSupremeCourtholdsthattheEleventhAmendmentappliestoSection
1983claimsagainststatesandstateentitiesbecause,inenactingtheoriginalversionofSection
1983,CongressdidnotintendtoabrogatethestatesEleventhAmendmentimmunity(Quernv.
Jordan, 1979). Therefore, a federal court award of 1983 damages against a state, state
agency, or state official sued in an official capacity is barred by the Eleventh Amendment
(Edelmanv.Jordan,1974)statingthatwhentheactionisinessenceonefortherecoveryof
moneyfromthestate,thestateisthereal,substantialpartyininterestandisentitledtoinvoke
its Eleventh Amendment sovereign immunity from suit even though individual officials are
nominaldefendantsquotingFordMotorCo.v.DeptofTreasury,323U.S.459,464(1945).
Evenifathirdpartyagreestoindemnifythestate,theEleventhAmendmentstillprotectsthe
statefromafederalcourtmonetaryjudgment(RegentsoftheUniv.ofCal.v.Doe,519U.S.425,
431, 1997). Because the Eleventh Amendment operates to bar suits against states only in
federalcourt,aquestionemergedastowhetherastatecouldbesuedunderSection1983in
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state court. In Will v. Michigan Department of State Police, 491 U.S. 58 (1989), the Supreme
Court held that neither a state nor a state official in his official capacity is a person for
purposesofaSection1983damagesaction(Will,491U.S.)Thus,evenifastateisfoundtohave
waiveditsEleventhAmendmentimmunityinfederalcourt,orevenifaSection1983actionis
brought in state court, where the Eleventh Amendment is not applicable, Will precludes a
damagesactionagainstthestategovernmententity.Thisholdingdoesnotapplywhenastate
officialissuedinhisofficialcapacityforprospectiveinjunctiverelief.Etcetera.
Okay,then,theStateofFloridaadoptedtheLifeSafetyCodemandatedintheCodeofFederal
Regulations at 38 CFR 59.130, 38 CFR 17.63, and 38 CFR 51.200, which set sprinkler
requirementsforhotelsandapartments,butthestatemaynotbesuedwithoutitsconsent,so
whynotsuethefederalgovernmentfortheadoptedpolicy?
No,afterall,thestateisresponsiblefortheadoptionbutimmunefromtheconsequencesof
local enforcement, and, in any event, the federal government would be immune against so
called constitutional torts, notwithstanding the federal tort claims act giving federal courts
jurisdictionoverwrongscausingpropertydamageandpersonalinjury.
Finally, a plaintiff might fervently appeal to the highest policymaker of all for relief, at least
according to some theologies, namely, the Lord whom the Congress worships by prayer.
However,theLordisnotbeholdentoanyoneinparticularunderthecontractwiththeChosen
Ones, for nothing is perfect, therefore the crowd incorporate is in eternal breach of the
covenantandissubjecttopunishmentatwill.Noentityisimmuneunlesssomefalliblejudge
along the climb up the mountain peak transcendentally intuits otherwise before the highest
levelofcivilization,wherethereisonlygoodandnoevil,isreached.
Thatistosaythatifyoucannotgetbythelikesofthislocalfederaljudge,whonaturallyhasher
parochialtendenciesandaninclinationtogenerallysidewithherauthoritarianclass,toholda
governmentbehindwhichofficialshidejustasKlansmenhideundertheirsheets,liableforthe
violation of your constitutional rights, then you are SOL, as an attorney observing the case
remarked.WTF,then,yourcauseisvirtuallyDOA.IfyoumountanappealtotheU.S.Supreme
Court,youwillluckytogetyourcaseheardunlessblessedbydivineprovidence,andthenyou
willprobablylearnthehardway,becauseyouhaveforgottentheprecedentialdivinerightof
kings to be above the law unless they decide otherwise, that the governments and all their
agencies are immune in one way or another. And of course the policymaking judges and
legislatorsareabsolutelyimmune.
Forget WE THE PEOPLE of the Preamble to the Constitution, the WE who fought against
sovereignimmunityofirresponsibletyrants,forWEwillnothearmuchaboutthecauseunless,
horrorofhorrors,itistriedinthepress,andthatisunlikelybecause,ifyourcauseisrighteous,
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thelosswillprobablybeburiedinthearchivesandnotevenreported,unlessitmanagestobe
heardbythehighestcourtintheland,becausepeopledonotlikelosers.
#

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TheDelVecchios(center)helpedorganizecampaignoverthrowingpreviousregime

UNDERLYINGSOVEREIGNIMMUNITYINMIAMIBEACH
TwoSection1983CasesDismissed

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7April2015
ByDavidArthurWalters
Section1983oftheKuKluxKlanActof1871providescivilredressforpersonswhoaredeprived
oftheircivilrightsbypersonsactingunderthecoloroflaw,namelygovernmentofficialsand
theirgovernmentsoranyoneelseactingbytheirauthority.Section1985specificallyprovides
for the award of damages to persons deprived of the equal protection of the laws by two or
moreconspirators.
Thehistoryofcomplaintsbroughtundertheactsforgedbythe42ndCongressatthecloseofthe
Civil War demonstrates that courts would rather not hold any governmental authority liable.
Governmentofficials,especiallylegislators,prosecutorsandjudges,haveanaturalprejudicein
favorofsovereignimmunity,theancientprincipleoftyrannythatthekingisabovethelawand
that he and his ministers can do no wrong unless they specifically waive immunity. Although
sovereignimmunitymaynotbementionedexplicitly,itunderliesorissubconsciousinSection
1983litigation.
EventhoughthepeoplearetheoreticallysovereignintheUnitedStatesofAmerica,andeven
though their representatives have waived sovereign immunity for the tortious conduct of
governments,itisdifficultifnotimpossibleenjoinsuchconductortocollectdamages.Onemay
argue,forexample,thattheviolationofcivilrightsisaconstitutionaltortandnotaregularcivil
tort,sothewaiverdoesnotapply.
As for the gross negligence of officials, consider the notorious precedent set by the Supreme
CourtofFloridainTrianonParkCondominiumsv.TheCityofHialeahin1985:adecisionthat
haseversincecultivatednegligenceinthefloridstatebysanctioningnegligenceaswithinthe
sovereigndiscretionofpublicofficials.
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
discretionarypowerexercisedbythepoliceofficeronthestreetinenforcingacriminalstatute,
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
incarcerateadefendantorplacehimonprobation.
Further,wefindthatnostatutorydutyforthebenefitofindividualcitizenswascreatedbythe
city'sadoptionofthebuildingcode,and,therefore,thereisnotortliabilityonthepartofthe
city to the condominium owners for the allegedly negligent exercise of the police power
functionofenforcingcompliancewiththebuildingcode.
Thecourtthusstrippedgovernmentofficialsoftheirduty,leavingthemsubjecttotheirwhims
andprejudices.Discretionistyrannyintheabsenceofabeneficentwill.
Aslongascourtshewtothepublicdutyprincipleofnodutytoanyone,whichtheymustadhere
to once it is mouthed by the high court, their hands are tied by a logically absurd fiction.
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TheFlorida 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.,
hadbeentheCityAttorneyofHialeah,andhehadrepresented,asaCountyCommissioner,the
area that included Hialeah. If he had recused himself, the outcome would have been a 33
decision,thetiefavoringTrianoninsteadofHialeah.
TherewouldhavebeennodissentifthatcasehadbeenbroughtinfederalcourtunderSection
1983forthedeprivationofthepropertyrightsofthecondominiumownerswhosehomeswere
damaged because the building inspectors in the exerciseof the police power did not provide
themwithequalprotectionofthelaws.Mostlikelythefederaljudgewouldsummarilydismiss
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
shouldneverbeconsideredbyajury.
InahumiliatingdefeatforRodEisenberg,whosuedtheCityofMiamiBeachinfederalcourtfor
shutting down his historic Sadigo Court Apartment Hotel in South Beachs Collins Park area,
throwinghisguestsontotothestreetandarrestinghiminallegedretaliationforhiscomplaints
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
technicalityusingwhatappearstobeerroneousreasoningjustashisattorneyswerepreparing
togototrialinJanuaryaftersurvivingthecityspreviousmotionforsummarydismissal.
The lack of an automatic fire sprinkler system in the threestory building situated in a
commercialdistrictnearthebeachwastheapparentpretextfortheclosureandprosecutionof
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
thestate,andthecityhadbeenacceptingresorttaxesforthatusefromhim.Whenheresisted,
an alternative channel was allegedly offered to satisfy the officials; impliedly, a bribe, which
wasarathercommonpracticeifthelonghistoryofcorruptionwasanyindication.Hefought
cityhallandcityhallwon.Hispotentialexposureforrefusingtoinstall$70,000ofsprinklersto
thedetrimentofthehistoricalcharacteristicsofhisbuildingnowstandsat$4million.
JudgeAltonagahasexhibitedtheusualprejudicesinfavorofgovernmentalauthority.Floridas
dominating CubanAmerican community wanted to see her sitting on the United States
Supreme Court. She was reportedly on President George W. Bushs short list for the
nomination,butretiringJusticeSandraDayOConnorsseatwenttoSamuelAlitoinstead.She
madeshortshriftofEisenbergscomplaintthathewasnotaffordedtheequalprotectionofthe
laws,forlackofcomparativesshowingthatothersweretreatedbetterthanhe,ashowingthat
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
hadbeenmade.AseveryMiamiBeacholdtimerwellknows,theonethingthatisconsistentin
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Miami Beach government is the arbitrary and selective enforcement of codes, and that the
selectionisoftenmadeaccordingtotheprimitivelawofretaliation.
ButeverypossiblecountwasrenderedmootbyAltonagawhensheruledthat,accordingtothe
socalled common law rigged in previous cases, the city itself did not make the policy he
complainedofbecausehecouldhaveappealedittoacountyfireappealsboardthathasheard
onlyfivecasesoverfiveyearsandhasruledagainstthepetitionerinallbutone.Nevermind
thatthecountywouldnotbeliableunderthesameprincipleinasmuchasitisasubsidiaryof
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 Courts misinterpretation of the Eleventh
AmendmenttotheConstitution.
TheCityofMiamiBeach,itsfirechief,firemarshal,citymagistrateandcitycommissionclearly
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
beenanofficialpaininthebureaucraticass.
Tellingly,thecommonlawthatacityisnotresponsiblefordoingitsdutybecauseitcanblame
some higher power, a tactic not available to nongovernmental entities, was also taken by
Altonagaina2009case,FloridaCarpentersRegionalCouncilv.CityofMiamiBeach.
Municipalitiesmaynotbeheldliableunder42U.S.C.1983onarespondeatsuperiortheory,
buttheymaybeheldliablefortheexecutionofagovernmentalpolicyorcustom.Asaresult,
municipalliabilityunder1983isincurredonlywhereadeliberatechoicetofollowacourseof
action is made from among various alternatives by the official or officials responsible for
establishingfinalpolicywithrespecttothesubjectmatterinquestion.(Citationsomitted)
TheCarpentersunionmadeaclaimunderSection1983thatitsmembershadbeendeprivedof
theirFirstAmendmentrightswhentheydemonstratedagainsthotelpoliciesonthebeachand
then were harassed and prosecuted for violation of the citys subjective noise ordinances.
Section1983,asmisinterpretedbyfederaljudges,assertsthatthemunicipalitybeingsuedset
the policy complained of, and not some high power. However, because the Carpenters had
failedtoclearlyandexpresslyallegeanyfactsthatthemunicipalityitselfwasthepolicymaker,
at least according to Altonagas intuition, the claim was held invalid by her as to the form
purportedlyrequiredbytherulesofprocedure:
Here,theCouncildoesnotallegeactionbyaCityofficialwhohasfinalpolicymakingauthority.
AlthoughtheCouncilallegestheCityhasnoauthoritytorevokeacitationafteritisissuedbya
code enforcement officer, the Council also alleges: (1) a special master reviews citations and
rules whether fines should be paid; (2) the special masterconducts an evidentiary hearing at
whichapartymayberepresentedbycounsel;and(3)theCouncilhasappealedfourofthefive
citations 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
administrativereview.
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People who are actually intimate with the City of Miami Beachs quasijudicial 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
citysstrongmanager/weakmayorcharterorcouncilmanagersystemhasnobranches,aform
thatwascondemnedasfascisticbyopponentsacenturyago.Indeed,strongargumentscan
be made that the city with its special master agency is unconstitutional hence unAmerican
becauseitdoesnotaccordwiththepoliticalwisdomofthenationsfounders.
AccordingtoCityAttorneyJoseSmith,whowascityattorneyatthetimeoftheCarpenterssuit
againstthecity,thespecialmasterisacreatureofthecitycommissionandcanbeabolishedby
thecommission.Inotherwords,thespecialmastershadbetterdowhattheyaretoldtodo.
Thatcityagencyhaslongbeenahoneypotforcasefixingattorneys.Finesfornoisecomplaints
for commercial noise that would put the union megaphones to shame have been routinely
reducedordismissed.
A controversy erupted during the summer of 2012 between the city attorneys and a special
masterbythenameofBabakMovahedibecauseherefusedtogoalongwiththewritedownof
finesandcasedismissals.CityAttorneySmithsoughthisdismissalalongwiththedismissalof
Chief Special Master Abe Laeser, who supported Movahedi, and the installation of Smiths
CubanAmericancolleagueasthenewchief.Smith,inresponsetomyobjectionthathisoffice
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,ordismissacasewhereitisdeemedtobeinthecity'sbestinterest.After
JimmyMorales,formerlycityattorneyforDoral,tookoverascitymanagerfortheCityofMiami
Beach,hedismissedthespecialmastersandinstallednewonesbecause,hesaid,hewantedto
takethespecialmastersinanewdirection.JoseSmithresignedascityattorney,anduponhis
recommendation,RaulAguilawasappointed.
So,yes,citypoliciesaresubjecttomeaningfulreview,meaningthatthecityreviewsitown
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 judgemade
commonlawwhenauthorityneedstobeabsolvedofresponsibilityfordoingitsduty.
AnotherdistinctionAltonagawascarefultotakeuponcueintheCarpenterscasewasbetween
facialandasapplied.Aparticularlawmaybeobviouslyoronitsfaceunconstitutional,orit
may be unconstitutionally applied. Courts are generally reluctant to declare laws
unconstitutionalaswrittenbecausetodosomayrequireagreatdealofspeculationastothe
consequencesoftheirapplicationtounknowncases.
TheCarpentersallegedthatthecitysnoiseordinancedependeduponsubjectiveassessments
of noise levels by code officers as to what was unreasonably loud inasmuch as they took no
decibelreadings,and,whenitwaspointedouttoanofficerthatthesoundemittedfromthe
unionsmegaphonewasnolouderthanmusiccomingfromthehotel,theofficersaidthehotel
hadapermitforthemusic,buttheunionhadnopermitforitsnoise.

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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.Thus,theCouncilargues,theCity'senforcementisperhapsbettercharacterized
asutterlyarbitraryandsubjectiveenforcement.
Thatmightbetrue,butitcannotbeallowedbythemindboggledjudgebecauseofsomedefect
inthewayitwaspled;towit,thatitwasseeminglypledasifthenoiseordinancewerefacially
unconstitutional instead of unconstitutionally applied, which is the substance of the pleading
thatthecourtisnotblindto,soonandsoforth,anythingtodismissthecaseandpreventit
fromgoingtotrial.
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.TheCouncilalsoarguesinitsResponse,insupportofCountII,theordinanceis
capableofarbitraryandsubjectiveenforcement.ButCountIIisanasappliedchallenge,nota
facial challenge. The Council has not explained how allegations of arbitrary and subjective
enforcementotherthanthosethatwouldbesufficientunderOlechstateaclaimforanas
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
undertheequalprotectionclause,whichtheSupremeCourthasdescribedasaclassofone
claim, a plaintiff must allege that she has been intentionally treated differently from others
similarlysituatedandthatthereisnorationalbasisforthedifferenceintreatment.Villageof
Willowbrook v. Olech, 528 U.S. 562, 564 (2000). As already discussed, the Council has not
allegedthattheCitytreateditdifferentlyfromasimilarlysituatedindividual.CountIIfailsto
stateaclaimforarbitraryenforcementunderOlech.
A class is needed because it is impossible for government to enforce every law equally, so
enforcementoftenappearstoberandom,asawarningtoviolators.Andthepolicepowermay
prioritizeenforcementforgoodreason.AlthoughthemembersoftheCarpentersunionarenot
aclassofpersonsprotectedbylawsagainstdiscriminationagainstrace,color,religion,creed,
nationalorigin,sex,age,disability,citizenship,genetics,andsoon,theymaybeatleastaclass
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
otherswereallowedtodemonstrateandraisearacketwithmegaphonesatahotelelsewhere
onthebeach.Nevermindthatnonunionnoisemakersareseldomcited,and,whentheyare,
therecasesaredismissedorfinesradicallyreducedasamatterofcitypolicy.

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No doubt a clever lawyer could reasonably counter every reason given by Altonaga for
dismissingtheCarpenterscase,butstillshewouldnotallowittogototrial.
AsfortheEisenbergcase,Altonagatossedhisequalprotectionargument,inherfirstroundof
dismissalsintheSummaryJudgementGame,forlackofcomparatives.Carefulresearchwould
probablydiscoverthathiscaseisacaseofone,andsimilarlysituatedpersons,exceptfortheir
amicablerelationswiththecity,wereallowedtogoScottFree.
On the other hand, the city government is as notorious for its bungling as its corruption.
Laymen might wonder how a jury would decide Eisenbergs case if officials were not
intentionallyretaliatingagainstEisenbergforbeingatroublemakerorfornotpayingbribes.
Inanycase,nodoubtAltonagaandherilkclearlydotheirlevelbesttomakecertainhisandlike
casesarenotheardbyjuriesnomatterwhatfactsandlawsareasserted.Thatisnottosaythat
themajorityofjurorsselected,giventheirexperienceastravelersinneedofasafeandrelaxing
vacation, would not believe that government has an overriding interest in ensuring that
vacationersarenotdisturbedbynoisydemonstratorsanddonotperishinfiresduetoalackof
fireextinguishers.
HasanythingchangedotherthanrampantrealestatedevelopmentintheCityofMiamiBeach?
The jury is still out on that question. However, nothing will deprive it and its officials of
sovereignimmunity,sotheyhavelittletoworryaboutonthatscore.
##

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