The Defective Process of Miami Beach City Attorney Jose Smith

MIAMI MIRROR TRUE REFLECTIONS
The Defective due PROCESs of CITY ATTORNEY Jos smith THE CITY OF MIAMI BEACH
Miami Beach Public Record Correspondence
Thirty Thousand Dollar Judgment Seat Proffer

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BIOGRAPHIES OF SOME PERSONS MENTIONED Alexandr Boksner, a first assistant city attorney whose background is a state secret because of his police work according to the misunderstanding or misrepresentation of the public records law by his boss Jose Smith. Joe Centorino, former head of the public corruption unit of the State Attorneys Office Miami Dade County, is Director of the Miami-Dade County Commission on Ethics & Public Trust. Babak Movahedi, international corporate law attorney, former District of Columbia Advisory Neighborhood Commissioner, holds his MBA from George Washington University and his JD and LLM from Georgetown University. He sat on the Gay and Lesbian Leadership Council and the National Advisory Board of the Democratic National Committee. He retired from the practice of law to move to South Beach from Washington in 2007, where he went into the restaurant business. He served as Chair of Mayor Bowers LGBT Business Enhancement Committee until he resigned when appointed Special Master on March 10, 2010, by Abraham Laeser, Esq. Chief Special Master, who certified to his knowledge, skills and abilities to serve as Special Master. City Attorney Jose Smith, according to a July 19, 2012, SunPost article, seeks to replace Chief Laeser with Special Master Enrique Zamora, who in turn would have the power to replace Special Master Movahedi and Special Master Joe Kaplan, both of whom Mr. Laeser said Mr. Smith wanted removed for political reasons rather than merit, Mr. Kaplan for paying too close attention to details, Mr. Movahedi because of bad blood over certain rulings. Interim City Manager Kathie Brooks cited concerns with overall management and process. Mr. Laeser was quoted as saying, What is (the) purpose of my office? Is it to be independent, or is it to do what the city wants? Mr. Laeser believes the City Attorney is attempting to strip his position of its autonomy, creating the impression that people will not get a fair hearing. Steven H. Rothstein, born in Brooklyn, New York, holds a B.S. Degree from SUNY Albany and a J.D. Degree from University of Miami, practiced law as an associate from 1987-2006 including civil, lender, construction and commercial litigation, condominium law, landlord/tenant law, and real estate law, then joined City Attorney Jose Smiths staff, now holding the position of First Assistant City Attorney. Jose Smith, Born Havana, Cuba, holds B.A. and J.D. Degrees from University of Florida, admitted to Florida Bar 1974, practiced law in the areas of civil, construction, real estate, and commercial and lender litigation, and in practiced land development, condominium, and landlord-tenant law as a senior partner for a North Miami Beach law firm from 1983-2006. At the same time, from 1997 to 2005, he was a part-time legislator as a member of the Miami Beach City Commission. He reportedly agreed not to run against David Dermer for mayor in exchange for Dermers support for his appointment as City Attorney in 2006, and continued to serve in that position after Matti Herrera Bower, whom popular Mayor Dermer supported to succeed him, became mayor.
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Kim Stark, owner and editor of the SunPost, a weekly online and free sidewalk news publication succeeding a once-lucrative publication by the same name that folded with the real estate bust because it depended on and supported the real estate industry. The paper, owned by a Jewish family originating in South Africa, acquired a reputation for not criticizing its real estate industry advertisers during the speculative boom, which in Miami Beach was supported by Mayor David Dermer, but was highly regarded for taking city administrators whom the publisher disagreed with to task. Ms. Stark has continued that critical tradition yet is known to have killed stories about favored politicians such as Commissioner Michael Gongora and powerful city officials such as City Attorney Jose Smith. Now the publisher no longer has distribution boxes throughout the streets, and salts tourist areas here and there on South Beach with a few copies of the print edition in an attempt to create the appearance of a broad circulation for advertisers, yet a copy is very difficult to find. During the scandalous episode involving the F.B.I. arrest of several city employees and resulted in the forced resignation of City Manager Jorge The Boss Gonzalez, someone at City Hall was observed dumping the papers left there in the trash bin shortly after delivery. Other than reviews and republication of email blasts, many editions of the publication have been completely written by a single talented writer, with occasional worthy contributions from other writers. Its fate as a publication will be determined by the answer it gives to a question recently put to Ms. Stark by freelance contributor David Arthur Walters after City Attorney Jose Smith libeled him in an effort to get Ms. Stark to discontinue running his stories: On the one hand, they say the SunPost is an insignificant paper that cannot be found; on the other hand, they fear it. Why is that? David Arthur Walters is an independent published author and activist journalist. He writes under his own name and several noms de plume. He occasionally contributes articles to the Miami Beach weekly newspaper, SunPost (www.SunPostweekly.com) on an independent, unpaid basis. Work in Progress
CORRESPONDENCE AND NOTES BELOW
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September 1, 2012 Mr. Walters: What reputation? Jose Smith
Original black Minakshi and a contemporary white impersonator
September 1, 2012 Mr. Smith: I'm afraid Leroy would not make it farther than a block. So you know Minakshi, black lady born with three breasts, famous on the Web? They say one (breast) will disappear when she finds a husband. BTW I did not know Leroy until I was accused of being on his payroll so I dropped by to see if there was a check but he said I would have to run first. I am sure we will get along well when we discover the truth about one another. I did confine myself to fiction in another state after an organized crime task force friend told me there was a hit out on me for publishing info I had received in a plain manila envelope about the ties of judicial selection committee - the major daily was uninterested. Coincidentally, I may venture to a part of the original Bohemia to write a biography of a fellow I worked for many years ago. I am reluctant however to leave South Beach unless I hit the jackpot and can keep a winter home here. I may go the way of A.C. finally subscribing to the Miami Herald so papers can pile up and warn the neighbors of my demise before I begin to stink. On the other hand, I'm afraid that you have ruined my reputation with the Starks, so little chance of me becoming aide to a mayor. Madame Bower should have me as an honorable mayor for a day. David Arthur Walters
, , : {. }
6 In those days there was no king in Israel; every man did that which was right in his own eyes. {P} Judges Chapter 17
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NOTE: The reference to reputation was in regard to Smiths letter to editor Stark accusing me of being a deluded bigot resorting to reprehensible discourse, simply because I had referred to the Cuban takeover of the city administration from Jews; Jorge Gonzalez of Hialeah was selected as city manager, and he gradually filled the administration with Cuban Americans. Jews were once the dominant faction on the beach, naturally voting ethnically, but their power and population was diminished as the beach was flooded with Cuban immigrants. Minakshi is a Hindu goddess. She defeats every god but the most powerful one, whom she marries, and for some reason one breast then disappears. SunPost is owned by the Stark family. SunPost reporters including A.C. Weinstein became mayoral aides, selling out to the Man, so to speak. A.C., aide to Mayor Dermer, was found dead in his South Beach apartment after he did not show up for work and neighbors noticed newspapers piled up at his door. I seldom read the Herald because of the expense and the fact that David Smiley its Miami Beach beat reporter said he could not share info with me because he considers me a competitor. Mayor Bower, Dermers hand-picked successor, is reputed to be cruel to her staff, the tenure of her aides being increasingly shortlived, the last one being a sworn witness to an allegedly corrupt offer made by Commissioner Michael Gongora to strip club owner Leroy Griffith. August 31, 2012 Mr. Walters: I know every nook and cranny in the city, and will still be here long after you move on to a more bohemian venue to write fictional stories. I walk/jog the entire beach every weekend. AC Weinstein used to join me (before he switched sides). I'll be jogging this Saturday, Sunday and Monday afternoon. I usually take a brief respite in South Pointe Park. If you can keep up with me in the scorching sun and heat, and have good running shoes, with plenty of sole, you may tag along. Then, you may finally get to know the "truth" about me. Perhaps you can also teach me a thing or two about creative writing. Hope you're in good enough shape. Bring Leroy too (but not the three-breasted woman).Jose Smith Whereas the impressionable poets were wont to bow down to the Impressionist artists; when those artists entered the bohemian caf, the post-modern artists, impressed by the intellectual attack on intellect, bowed down to the despairing writers and became anti-artists. In their understandable despair, afraid to believe anything at all, they found what they were looking for: nothing at all: their salvation was nowhere to be found. Therefore contemporary art represented the destructive life they hated, becoming virtually the very thing it protested. Darwin Leons Cubosurrealism Manifesto as deciphered by David Arthur Walters NOTE: According to Smiths slight, he considers me to be too much of a gypsy even for South Beach, which is known for its transient and often immoral culture, wherefore I am not welcome despite having lived on the beach and visited it for many years since 1969 without participating in drugs, prostitution, alcoholism, money laundering, political corruption, etc.
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August 30, 2012 Mr. Smith: Jose. I am thinking we might grab a bottle and go over to the show at Leroy's. The last show I saw had a woman with three breasts between eight $ 500 cancelled checks. We could relax and I could interview you. Maybe get Kim (Stark, SunPost editor) to run the truth. It would do you good to get in touch with the hood again. Whattaya say? David Arthur Walters
Leroy Griffith, Pasties & Thongs, Michael Gongora, Mayor Bower
NOTE: Leroy Griffith owns totally nude strip joint Club Madonna, for which he has been fighting for a liquor license for some years, that being denied because he will not require his performers to wear pasties and thongs. I called upon him on the premise of asking for my paycheck, relating to him how Kim Stark had told me that Commissioner Michael Gongoras political consultant, who identifies himself as the Prince of Darkness, had said I was on Griffiths payroll for writing about Gongoras allegedly corrupt offer to get the licensing issue on the commission agenda for Griffith providing he hire his satan to poll the commissioners where they stood on the issue. My articles theme, however, was not that alleged offer but was about the fact that the Florida Bar peremptorily dismissed the complaint of unethical conduct despite the fact of two affidavits attesting to the occurrence of the event alleged, and about the fact that the Miami Dade Commission on Ethics and Public Trust refused to open an investigation thereafter. Ms. Stark then rejected my article although she had encouraged me to submit it, because she said she had promised Commissioner Gongora to run nothing negative about him. He showed me photocopies of eight $500 checks he said he gave to Commissioner Deede Weithorn and Mayor Bower on the same day last year during the election campaign. The bundling of checks is done to evade the $500 maximum contribution statute. His secretary said she witnessed the donations, having written the checks herself. He said that, after he had given Weithorn four checks, Bower asked, Wheres mine? Although they were there at the same time, and official business was discussed, namely, getting Griffith a liquor license, a discussion that would be a violation of the Sunshine Act, the checks were dated a day apart, Griffith said, because his secretary inadvertently dated Bowers checks a day later because she had postdated a check to someone else after writing Weithorns check. As he was showing me the photocopies, he pulled out a photograph of a woman with three breasts and handed it to me. I told Griffith I
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would like to write up the story. He said that he had already promised it to SunPost reporter Charles Branham-Bailey.
August 28, 2012 Jose Smith, Esq. City Attorney CITY OF MIAMI BEACH Special Master Case No: JB10000105 Mr. Smith: Thank you for your August 24 explanation of the disposition of the above Special Master Case, wherein was included an email on the subject received from Steven Rothstein, Esq., who, according to your July 26 email, handled the case and dismissed it for want of service: The city issued the violation to a person who no longer owned the unit. The city did not issue the violation against the actual violator who did the unpermitted work. The city improperly tried to join the violator in the case without proper service. An appeal to the circuit court was filed. Mr. Rothstein did the only ethical, legal thing he could do, to wit: dismiss the case. I believe there may be a distinction between dismissing a case for lack of service, and mitigating or reducing a fine because the violator has been good and so on. However, I shall not object to your statement that, the City always retains the inherent, sovereign right, in its discretion, to settle, compromise, or dismiss a case where it is deemed to be in the city's best interest, if it is understood that the people are sovereign and the government is obliged to act in their best interest when deeming what its best interests are. And you say that, the City is not required to appeal a Special Master ruling in order to mitigate a fine imposed by the Special Master, as occurred here. But you and your assistant claim that the case was dismissed, not that the fine was mitigated, i.e. reduced. Still, in any case, it would be absurd for anyone to appeal against themselves. It was not in the citys best interest to dispose of this case in the way that it did. The mitigating power, which I believe has its origin in the kings mercy, or discretionary justice upon due clamor, as distinguished from punitive and rehabilitative justice, was abused. The clamor raised will be ever the more if the discretion is exercised regularly. No matter how reasonable a reduction in a fine may seem to the violators, it will appear arbitrary and preferential to those who believe determinate sentencing constitutes equal justice under the law. Sephardic tolerance is intolerable within the four cubits of the law. As for the allegedly defective notice, a person familiar with the August 11, 2011, hearing before special magistrate Babak Movahedi told me the plea made there was specious, that the owner
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knew about the violation, had depended on the contractor to take care of it, and intended to make good and take any fine imposed out of the contractors hide. Doubtless you are far more familiar than I am with the endless quibbling of jurists over notification whether statutory, actual, constructive or implied. I do not know whether one can argue in equity in Florida that a defect in statutory notice may be overcome by facts which raise a strong presumption of notice. I assumed that Judge Movahedi had ruled on the defective notice issue, therefore I pressed you for further records and an explanation since you said Mr. Rothstein had dismissed the case due to defective notice, and I saw nothing in the file that the city provided. Unfortunately, I phrased my question foolishly. You responded to me with several insulting email on July 26, the first one beginning with: My comment is that before you accuse anyone of wrongdoing you should know the subject you are writing about! ...and you call yourself a journalist? It was not until July 30, 2012, that you said I had been provided with all records: All records you requested were already provided to you. Don't waste your time asking for the same thing multiple times. My office will not provide you with a tutorial on due process, service of process or constitutional law. Get your own lawyer! I discovered from the recording of the hearing that the owner did not personally appear at the August 11, 2011, hearing. The contractor showed up with an employee whom he instructed to act as the owners representative, and simply say that the amount of the fine was unfair because the owner was away and was not receiving her mail. Apparently someone had read the standard Notice to Violators Late Compliance, which states that Legal or Equitable reasons may be presented; it would seem then that the prosecutor would have the same privilege, to apply equitable principles, as has been done in our tribunals for a long time, there being no separate courts of equity in this country, I think, except in Delaware. I would think even equitable estoppel could be considered by any sort of tribunal in the land unless the highest court ruled it out. After all, fair is fair. However, positing fairness has recognized forms, and no legal or equitable claim of defective notice was made: no definite motion was made to quash the order for the fine due to defective notice. Indeed, the case record does not show that the owner asserted a due process claim at any time. A notice of appeal was filed with the special master court. By then it was too late to assert defective notice, and it was not even then asserted, for no writ was presented to the circuit court, which would have had no choice but to consider the record alone and affirm the special masters judgement, since it could not newly hear the case (de novo). The only record referring to defective notice on the owner is your assistant Steven Rothsteins dismissed for defective notice, repudiating the special magistrates finding against the citys best, in effect throwing $26,741 away, and act that you have referred to as routine. However that may be, the contractor said he had gotten a permit within 30 days so there should have been no fine. I see that compliance permits were approved on October 14, October 19, and October 20, 2009. But that would not do, for fines run until the violation is remedied, according to Judge Movahedi. As for the mail, the judge said that the owner was responsible for taking care
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of her property and receiving her mail to that end. Wherefore he denied the motion to mitigate after politely asking more than once on what other grounds he was expected to mitigate. In retrospect it is questionable whether the contractor and his employee had any standing in the court unless acting as agent for the owner. Yet in fact the request for the mitigation hearing was made on April 10, 2011, signed by the owner but on the contractors letterhead; and it was the contractor, not the owner, who ultimately paid the settlement amount of $2,520 on October 6, 2011, the city writing off $26.741. Notice that the owner had signed a notarized Notice of Commence on September 9, 2009, stating that she, along with one Ricardo Borkowsky, were both owners, having an interest in the property. The Stop Work Order and Notice of Violation were given five days later, on September 14, 2009. It was not until January 6, 2010 that Mr. Borkowsky said he had sold the unit on August 19, 2009, and should not be liable for the violation. The deed was recorded August 25, 2009. Still, notice on him was arguably notice on the owner of record as well since she signed a notarized document prior to the violation stating they both had an interest in the realty. And if the contractor were in effect acting as her agent, he knew about the Stop Work Order and Notice of Violation and she would be served. You know I wonder about your authority to overrule a case ruling you happen to disagree with. Sometimes I get the impression that you have too high an opinion of your opinions, and think of your fatwas as the law itself or even superior to the font of the law, as if you were the grand ayatollah of the city; that is, upon occasion I perceive that you are obstinately convinced of the superiority or correctness of your own opinions and prejudiced against those who hold different opinions. I am willing to admit my mistaken opinions: In this case I admittedly made an incorrect inference from the facts: that the judge had denied a motion to dismiss the case for want of service, because I was blind to what transpired during the August 11, 2011, hearing due to your failure to provide a transcript. It is not true, although you said so, that I was aware that the hearing record was not kept in your office. Since you are purportedly personifying The City, and are its attorney, I figured you had access to all files concerning legal matters. It was only later that I discovered, after hearing references to transcripts being in your offices possession, that recordings of Special Master hearings are made. Incidentally, transcripts were referred to several times and produced during last Wednesdays legal oversight meeting, apparently for the purpose of criticizing the behavior of special masters, especially Babak Movahedi. Further, if an appeal is actually made, I understand that a record of the hearing is always produced. In my lay opinion, you violated the public records law, but without criminal intent, so that issue is dead because no further compliance, which is the civil intent of the law, is to be had. My August 15 article, Getting Ahead of The Job at the Special Masters Court concluded with a naive question about your authority to dismiss cases: . by what authority could an assistant city attorney or the City Attorney himself dismiss a special masters case when the only statutory venue for appeal seemed to be the circuit court? And of course he would not appeal versus the city that he represents. Why could we find no record of the circuit court case? Why is not that record in the file? Perhaps he and the
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defendants attorney struck a deal before a petition was filed with the circuit court clerk, so no dismissal upon settlement was filed there either. If that shortcut were taken, why did he not just say so in the first place? And if that kind of shortcut were routine, would it not arouse reasonable suspicion of unwarranted dealings behind the scenes? If this sort of defect in service of process is routine, and if the procedures are somehow defective at all levels, is not the city attorney routinely responsible for advising everyone concerned what changes must be made in defective routines? We are standing by for answers to those questions at deadline. I say nave or innocent because Sec. 30-77 of the Miami Beach Code reads: An aggrieved party, including the city administration, may appeal a final administrative order of a special master to the circuit court. Such an appeal shall not be a hearing de novo, but shall be limited to, appellate review of the record created before the special master. An appeal shall be filed within 30 days of the rendition of the order to be appealed. There was no reason given for the appeal on the notice of appeal. That would naturally appear on the writ filed in the circuit court, but no such writ was filed, and there was no assertion in the file from the attorney representing the owner that the appeal was caused by defective notice. Further, would not App. P. 9.100 (c) (2), requiring a petition to be filed with the circuit court in 30 days, apply here? If so, there was no appeal and the Special Master Order stood as it waswhy dismiss the case against the Citys best interest? It was only later that you said you wrote an ordinance that authorized the city manager or a financial analyst such as Jimmy McMillion to mitigate cases under $100,000, and the commission to reduce fines above that amount, but you did not cite the ordinance or provide a copy as requested. Of course I believe you, but I did not see your ordinance as an amendment to Sec. 30-77, where naive people concerned with Special Master Cases would logically look. No doubt you could cite it from memory. I want to be sure you made no distinction between mitigation and dismissals when you drafted the ordinance, since mitigation can mean anything done to reduce the severity of any form of penalty. My concern was then whether or not you disposed of a routine case incautiously and without proper authorization from your client the City. I suggested that, in the future, a formal warrant for special resolution be placed in every file mitigated or dismissed, giving an explicit reason for mitigation and dismissal, and citing the pertinent ordinance. Then the nature of the disposition would be clear to everyone, lawyer and non-lawyer alike. The city clerk could get a copy so that the costs of mitigations and dismissals by special masters, city managers, and commission could be tracked. You have highlighted some documents that would indicate, to the initiated party, that the financial analyst settled this case, presumably in accord with some formula derived from previous analyses, because the notice was defective, upon your offices advice. That contradicts your statement that Mr. Rothstein dismissed the case. Well, maybe he did in a way, by advising the financial analyst to apply a defective notice dismissal factor of, say, ten percent of the judgment hence the analyst was motivated to act by the full weight of the law. I attach a document that indicates that it was not the owner or her attorney that negotiated this settlement with the finance officer, but rather it was the contractor, who made the payment via one of his
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business entities. Files like this would certainly be more easily understood with the inclusion of a warrant signed by the finance officer or other authorized party as suggested. Now you write that my petitions regarding your offices disposition of this case nauseate you; that is, you refer to it as a subject as one I have written about ad nauseam. I continued to petition you because I found your responses including your insults inappropriate to the subject. That subject involves a loss of $26,741 which the extraordinarily wealthy owner of the property and her spouse believed they were responsible for and were willing to pay out of funds withheld from the contractor who created the violation. After the violation was remedied, the contractor went on to combine and build out the fabulous three units at the Continuum. As you should know, I had cause to suspect that the scope of the work was grossly understated, that perhaps $30,000 in permit fees had been evaded, therefore I notified the Building Department of my suspicion, with advice to look out for dummy invoices and the like when checking into the true value and scope of the work performed. In your July 31 email to the esteemed editor of the illustrious SunPost, you said that the case was routine and you construed my pleas to you as an attack on the City of Miami Beach, as if you were the city in its proper person: Mr. Walters has turned a routine Special Master Code case (dismissed by the City Manager's office for lack of jurisdiction and service of process), into a cause clbre to attack me, my staff, and the City. I note that you changed the source of the dismissal: it is now the city manager, not the city attorneyoops. I did not know exactly what you meant by routine. If routine were once a week, the total written off in a year would be $1,390,532. Needless to say, so-called mitigation of fines, dismissals, and lax enforcement of the municipal code is conducive to noncompliance and has been a pressing issue for some time in our community, at least since 2006. The plethora of complaints generally fell on deaf ears or was given a show hearing or two. The tipping point, in the communitys favor although it was disgraced, came with the FBI arrests of several city code enforcement employees. During my investigation that led to the series, Getting Ahead of The Job Con, almost every Building Department file I examined had in my opinion some defect. They were small defects with potentially fatal consequences. It appeared to me that as long as the forms had four corners, were signed and notarized, they were passable regardless of substance, as if subject to some sort of pharisaic ritual. Your office even informed me that it was perfectly legal and proper for blanks to be sworn to as true, to be filled in later at someones convenience. That someone could be a permit fixer working for an unlicensed general contractor who rents prostituted licenses, neither of whose names is on the permit applications; and neither the permit fixer nor the licensed contractor may be known by the owner who signed the application. I was even told that it was perfectly excusable to put the wrong name on a permit as owner when the right owner was known by everyone, simply because the county assessors office had not changed the record actually, that was not true in the case I asked about, for I had checked the county record before the permit was approved, and the current owner was on record. And when your office is warned of misconduct, it is blind to the warning, the Charter cited as the reason for doing nothing about it. The defects could be prevented in the future by administrative intervention under the advice of
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your office, which you have said you cannot give unless asked by a public official, as opposed to providing a proactive response to private citizen petitions. There was no cure for the overweening attitude of the last administration, of which I considered your office to be a part. That is why I said that your office has been instrumental in the demoralization of the city, and that prevailing conditions fostered turpitude and corruption. Not that I wanted to single you and your staff out personally until I was confronted by your insults and an invitation to walk me over the FBI. No, I was of the admittedly rash opinion that the top three persons in every department should be fired, the city charter revised in certain respects, and new elections held. Certainly Jorge Gonzalez, whom we credit for many good things, was not the cause of all the citys ills. You claim that my efforts are trash and defamatory garbage, and that you hope my noble professional as a journalist calling will cause me to retract it. GIGO I can only fill what I perceive to be holes in the citys procedures and records with whatever rubbish I receive from the city, notwithstanding your expert proclamations of law. As you know, the ancient teachers whipped boys for not questioning the law. My ashkenazic disposition moves me to dig quite a few holes in search for the hypostasis of things even when I am told I am digging my own grave. I wondered about your procedures again in this instance. I wondered why someone did not reissue the notice if it were defective, and why there was no proof in the file that the state statute and local ordinance was fully complied with in regard to constructive notice. Indeed, wished you would be more proactive and help provide your staff and special masters and building department officials with better processes and procedures. Then you would not have so much trash to deal with. There is nothing defamatory in my statements. I have spoken the truth to the best of my ability given the information you have provided. I have drafted my opinions and have petitioned my government, and thus far I see no error in them nor libel. Nothing will be retracted nor detracted, and everything you have said appears in the book of judgments. As for nobility of profession: a commission for what I have already saved the city would be substantial, but I have not received a thin dime for my efforts nor have I asked for anything, so I guess I am not a professional in your sense of the word. I obviously have nothing to gain and everything to lose for trying to help the city. I tried to give you quarter, but you could not spare a dime. Besides, I am no longer sure that journalists are very noble, so I am discarding that title. As for other titles, you can call me anything you want and I shall not sue you. However, if you order me to shut up and complain about garbage and trash, I may produce reams of free speech in response.
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Sincerely, David Arthur Walters
August 24, 2012 Mr. Walters: The attached documentation "expressly" establishes that the settlement and dismissal of the case, which you wrote about, ad nauseam, was resolved through "agreement by the Finance Department" (see highlighted language). My department's role was simply to give legal advice to Jimmy McMillon, whose job it is to resolve these cases on behalf of the Finance Department. JUST READ YOUR OWN DOCUMENTS! As to the appeal filed with the Circuit Court, Appellate Division, you will also find attached a copy of the Notice of Appeal. You always had this document in your possession. The City did not receive any other appeal documents filed with the appellate court (ie dismissal motions or orders). I can only presume that the appellant voluntarily dismissed the appeal after reaching a settlement with the Finance Department. You should also understand that despite what a Special Master might rule, the City ALWAYS retains the inherent, sovereign right, in its discretion, to settle, compromise, or dismiss a case where it is deemed to be in the city's best interest. The City is not required to "appeal" a Special Master ruling in order to mitigate a fine imposed by the Special Master, as occurred here. As to whether I did or did not provide you with ALL the records, I provided you with EVERY RECORD MY OFFICE HAD ON THE VIOLATION. In fact you had many more documents than I had since you evidently made a public records request to the city clerk. YOU NEVER ASKED ME FOR THE SPECIAL MASTER RECORDINGS and those records, as you well know, are kept with the Special Master clerk, not with me. I would now hope that YOU "dignify" the noble "journalist" profession by running a retraction on all the defamatory garbage you have written about my office and me. Regards, Jose Smith -----Original Message----From: Rothstein, Steven Sent: Friday, August 24, 2012 2:31 PM To: Smith, Jose Subject: RE: Special Master Statistics Request JS: Attached is the Notice of Appeal and documentation obtained from the Special Master file in connection with the receipt of the mitigated sum as well as the Satisfaction of Lien. The Notice of Appeal was timely filed on August 29, 2012. The City was provided with a copy of the Notice of Appeal. The appellate file is maintained by the Clerk of the Circuit Court, Appellate Division, 73 W. Flagler Street, Miami, Florida. It is not part of the Special Master file. The receipts attached reflect that subsequent to the filing of the Appeal, the Finance Dept. reached an agreement to resolve the outstanding fines for $2,520.00. (inclusive of recording fees.). Thereafter, the Clerk of the Special Master issued and recorded a Satisfaction of Lien. From a legal standpoint the lien was defective and should have been released. (A release of lien would have been filed.) However, since there was a closing pending, the fine was paid on behalf of the Seller in order to clear title. Steven H. Rothstein, First Assistant City Attorney
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NOTE: See rebuttal letter to Mr. Smith. The notice may not have been defective at all. The defendant was ready to pay the full amount, taken out of the contractors bill. The case was dismissed or settled against the best interest of the city. There is no appellate file. The Florida Rules of Appellate procedure require the petition to be filed with Circuit within 30 days from the determination by the quasi-judicial court.
August 24, 2012 Mr. Smith, Thanks. It may be wise in the future to put a signed warrant for special resolution e.g. settlement in each file to maintain the appearance of dignity. David Arthur Walters NOTE: Some of the documents in the file I had, e.g. a receipt for money and handwritten note referring to the citys financial analyst did in fact show the involvement of the city managers office, but only an insider would understand that a settlement was had, apparently at the instruction of the city attorney to the financial analyst, according to an ordinance that is not referred to in the special master ordinance itself or the public instructions. Further, the reason for the settlement was given not as mitigation, as provided by the ordinance which the city attorney failed to cite, but as a dismissal overruling the special masters ruling in favor of the city. A formal warrant would make such matters clear, and would provide a source document basis for compilation of data to answer the question: How much was written off and by whom, and whay was it written off? August 24, 2012 Mr. Walters, Surprise to hear that you now believe my profession is dignified. What a relief! I will provide you with the "express" (not implied) authorization as soon as it is retrieved from storage. Jose Smith NOTE I had only sent Mr. Smith a copy of part of the Special Master file the Clerk retrieved from storage, yet he claimed I had received all the file, or rather that he had nothing more. Yet now he is apparently having the file retrieved for the first time, meaning that he had never bothered to review the file for this correspondence. August 24, 2012
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Mr. Smith, PS If you are talking about the ordinance to adjust mitigation that does not apply here where you overruled the Special Master and DISMISSED case for DEFECTIVE NOTICE. At no time did you refer to mitigation. You referred to APPEAL but none was filed in Circuit. David Arthur Walters August 24, 2012 Mr. Smith, the record I first referred to that you did not provide was the record of the hearing before the Special Master. Now it seems to me there should be a written instruction from the city manager to write off the 25k and release the lien. You stated at one time that the city ATTORNEY DISMISSED the case. As for the ordinance you said contradicts the appeal as the only way out by allowing the city manager to write off amounts at discretion, you might have cited it. David Arthur Walters August 24, 2012 Mr. Smith, I am just looking at the hole in the record and your denial that it is not there. Please provide the express authorization of your client the city to settle that case and have the lien released. There is nothing in the file thus far to indicate that, and your evasive insults do not serve the purpose and detract from the dignity of your profession and office. David Arthur Walters August 24, 2012 Mr. Walters, As Paul Simon once said, the problem is you only hear what you want to hear and disregard the rest. Jose Smith August 23, 2012 Mr. Smith, Thank you. You said the case I asked about was dismissed by the city attorney. Yet then you said the city manager dismissed it. You also said I had the complete record but that proved false. There is no record in the file provided to me on this case that your client authorized the dismissal. Please send that along. David Arthur Walters August 23, 2012 Mr. Walters, Let me correct your misunderstanding regarding the Special Master process as it pertains to my office. The City attorneys office does NOT dismiss or settle cases. We give our legal recommendation to either the Finance Director, her deputy, Jimmy McMillan, or the City Manager. The ultimate decision is theirs if the amount reduced is less than $100,000 ( I wrote the ordinance providing such parameters). If the amount discounted exceeds $100,000, the decision
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is made by the City Commission. I hope you are professional enough to correct the trash you have been spewing lately. Jose Smith, City Attorney. NOTE: The only alternative to a special master ruling according to the ordinance was an appeal. It would be absurd for the prosecuting city attorney on behalf of the city to appeal against the citys interest to reduce a fine or dismiss a case, therefore an ordinance was written allowing the city via its manager or commission to do just that. Thus the Power of Mitigation with its opportunity for abuse. August 23, 2012 Rafael Granado, City Clerk: Mr. Granado: I was pleased to meet with you yesterday to discuss the new public records request system. Although you were introduced to me as a blogger from the blogosphere, I am really not a blogger and know nothing of that sphere except what I read in the papers. I do use a Google blogging facility to store some articles I write since I operate without funds, but my posts do not come close to being blogs as bloggers describe them. In terms of occupation, or rather preoccupation, I am an author, and sometimes I call myself a journalist when working on certain subjects, although I do not think highly of journalists. I really do not care if I am published if I can do some good. But I am published here and there all over the world in print, and on the Internet in what used to be called ezines. One area of interest is the Special Master Tribunal's struggle for independence from the City Attorney's Office. One of my freelance articles on the subject happens to be in the SunPost currently in your lounge on the first floor if the stack has not already been prematurely dumped. I noted a reference to complaint dismissal statistics at yesterday's meeting on permit master oversight, and your comment that some sort of statistics were available. It is natural for people on all sides to complain about the disposition of special master cases one way or the other, and to make broad generalizations of wrongdoing. I would love to have your statistics on the following, running period-to-period, from the date our statutory alternative to the code enforcement board was formed or from whatever date statistics were compiled: Number of special master cases brought each period, and their value; Number of complaints dismissed or settled by special masters or settled each period, and their total complaint value and the net amount settled on; Number of complaints dismissed by the city attorney or settled without petitions being filed in the circuit court (presumably by authority of the commission exercised by the city manager), their total complaint value and total amounts settled on. Number of complaints actually appealed to and disposed of via the circuit court, the total complaint value and amount settle on, and/or the value of those won, and those lost without settlement. Any other relevant information that a statistician would compile. I suppose that you may already have that or similar important information reported to city officials. In that case, please let me have a copy of the report. By the way, I noticed some sort of agenda and "book" being circulated at the meeting, and wonder if you have an extra copy of it or if it is online? Sincerely, David Arthur Walters NOTE: Granado did not have the statistics I wanted. I asked him to confirm that there is no regular reporting, but he did not do so. My suggestion to Jose Smith and to commissioners that
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regular reports be made as to the amounts written off by 1) special masters, 2) city manager, and 3) city commission, fell on deaf ears.
August 23. 2012 Mr. Walters: Mr. Boksner will not provide you with legal advice or discuss legal theories. As a former State prosecutor and Police Legal Advisor, his biography and other personal information is exempt from public disclosure. And for your edification, special masters are neither judges nor magistrates. They only have the authority granted by Chapter 30 of the city code. Jose Smith
August 23, 2012 Alex Boksner, At the special master oversight meeting yesterday, you mentioned a case you had found giving a judicial opinion on the constitutional powers of the special master alternative to the code enforcement board. Would you please email me a copy of the full text of that case? Mind you that I do not access to a good legal research mechanism. I would really like to know if the special masters are real judges sitting in a real tribunal. For what it's worth, I noticed some time ago that an information sheet handed out with a violation notice stated that defenses can be made at law and in equity, so I supposed equitable estoppel would be included as an "it's not fair" defense. However, I also noticed that the information sheet differed from the municipal code provisions in some respects. And I noticed from a file in hand that the technical constructive notice provisions, which seem to follow the state statute, do not seem to be followed carefully -- if they were, it was not evidenced in the file. My take on the technical discussions at the meeting is that the city attorney office in collaboration with special masters and clerks should sit down with the statutes and ordinances and documents and describe the correct process to follow in detail, with examples of course, and make sure that everyone is crystal clear about the right way to do things technically speaking. In other words, rewrite the manual to accord with the law. I personally do not think anyone has to be fired to resolve the human nature issue. Spaniards became extraordinarily courteous to one another after their Civil War. By the way, may I also have a copy of your biography? I do not see one on the City Attorney Office's page. Thanks! David Arthur Walters
August 1, 2012 Joe Centorino. Thank you for your direct response. I shall submit particulars next week unless Mr. Smith extends me the courtesy of addressing the points I raised in support of my thesis that there must be more information than was disclosed, the absence of which might reflect badly on the procedures and prowess of his department unless some reasonable explanation were given for the lack notwithstanding the flaming war I helped fan. I do not believe my points were of little moment; otherwise I would be a pettifogger. Thank you. David Arthur Walters cc. Jose Smith
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NOTE: It was suggested to me that City Attorney Jose Smith is balking because his office had no authority or lacked jurisdiction to waive the lien and write-off $26,741.34 of the fine, and that only the City Commission has that power, and it is usually done via the Consent Agenda on a routine basis. All I wanted was a record of what was done, and if no record, an explanation, and I received curt insults from the City Attorney in return. His behavior naturally led me to believe something was exceedingly wrong. August 1, 2012 To David Arthur Walters: David, The issue is whether you were provided with the public records you requested. Mr. Smith says they have been provided. What evidence do you have that public records have been withheld? Joe Centorino
July 31, 2012 To Jose Smith: Sir, you are looking into the mirror and should learn to take criticism instead of bawling like a baby to the SunPost about subject matter not published in that paper in an effort to discredit an independent journalist and deprive him of his meagre livelihood. There is nothing wrong with Cubans and Jews vying for power and your suggestion that I think so is indicative of a racist attitude. My father lost half his family in France and most of my friends are Cubans. As for defamation I suggest you go back to school to study the subject. It is simply my opinion from your behavior that you should be fired. Read the First Amendment. David Arthur Walters Note: I am an independent author. I am free to choose my own subjects and write as I like. The SunPost has not paid me a red cent for my work, which I submit on a take it or leave it basis. July 31, 2012 To Kim Stark from Jose Smith RE: City Attorney Jose Smith wants to meet with FBI: Kim, Thanks for your prompt response. I appreciate your involvement. Jose Smith
July 31, 2012 To Jose Smith from Kim Stark Re: City Attorney Jose Smith wants to meet with FBI: Hi Jose, Walters is a freelance writer that we use when he submits a story. I am surprised by all this. Let me look into it and I will get back to you asap. Kim Stark Publisher/Editor, SunPost Newspaper www.sunpostweekly.com, kim@miamisunpost.com (sic)
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July 31, 2012 To Kim & Jeanette Stark: I am forwarding a series of emails from David Arthur Walters, who holds himself out as a "journalist" for the SunPost. Mr. Walters has turned a routine Special Master code case (dismissed by the City Manager's office for lack of jurisdiction and service of process), into a cause clbre to attack me, my staff, and the City. What is most disturbing are the bigoted, delusional, defamatory comments referring to "Cubans" and "Jews". I happen to be BOTH! Mr. Walters has crossed the line. That kind of language is reprehensible and should be condemned. I have always had enormous respect for the SunPost and its writers. I hope that you will take appropriate steps to insure that your writers continue to earn that respect. Best regards. Jose Smith NOTE: Instead of responding to Joe Centorino and me in regards to my public record request inquiry to Mr. Centorino, Mr. Smith writes to a publisher to whom I contribute. At no time did I hold myself out as a journalist working for the SunPost; I made it clear to him that I had contributed articles to the SunPost, and was querying him in conjunction with a series of my articles published by the paper, but had national media interested in the subject. I hold myself out as an independent journalist, and my reference to the SunPost series is simply due to the fact that it published my series locallythe series is also published elsewhere at several websites, and I hold the copyright. Mr. Smith is making a transparent attempt to suppress whatever information he believed would be published on the matter, without addressing the majority of the questions and opinions I gave him ample opportunity to respond to, promising him a fair and balanced report. Most interesting of all is the fear he has of the publication that highly placed officials ridicule write off as an insignificant website and hard-to-find paper that nobody reads. The SunPost does not have jurisdiction over my request to the Director of the Ethics Commission, yet he responds to my request to the COE by writing to the SunPost, falsely charging me, for one thing, with mental illness in hopes of ruining my reputation and depriving me of my client, that being libel per se for which no damages have to be prove. I do not feel insulted, however, and only a sissy would sue. He projects defamation onto me, an accusation which is characteristic of thin-skinned bullies who would use the law to silence criticism. Mr. Smiths respect for the SunPost is obviously based on fear inasmuch as he is blatantly attempting to suppress publication of information that he suspects might reflect badly on him and his office, even though he was given the opportunity to present his side of the story, and was promised a fair and balanced report. Mr. Smith asserts for the first time that the City of Miami Beach Special Master case was dismissed for lack of jurisdiction.
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I hope for his sake that routine is not a case that extends from 9/14/09 to 10/05/11 and results in a waiver of a $26,741.34 fine by a city attorney who wants to remove the special master on the case, a highly qualified attorney, and two other special masters from their office, allegedly for political reasons, and has just attempted to get the City Commission to do just that. It is precisely the routine inattention to details that I have repeatedly called the city attorneys office to task for during my investigation I entitled Getting Ahead of The Job Con, stating that the inattention probably cost the city millions of dollars in permit fees and fines. I had not the slightest idea that Mr. Smith is either Cuban or Jewish or both nor neither. My allusion to the urban myth regarding the obvious fact that Cubans have supplanted the Jews as the dominant power in Miami Beach, and speculation on the rumor that his private practice was failing therefore a political deal was made for him to grab the city attorney job as a life raft, was an attempt to understand his arrogance. It is a well known fact that, since the advent of former City Manager Jorge Gonzalez and his installation of Cubans throughout the administrative fiefdom, the government became increasingly opaque and unaccountable to its critics. The importance of cultural differences indicative of the values people believe in are at present a matter of national controversy in the presidential campaign, and I happen to be researching urban lore on local cultural clashes. His statement that I am bigoted is apparently based on his misunderstanding of the etymology of the term as it was long employed to denigrate pious people accustomed to saying By God. Casual usage since then appertains to racism as well. The term Cuban designates people who hail from the island nation of Cuba or who participate in its unique culture: Cuban denotes neither religion nor race. Even though the Jewish culture is historically grounded in religion, quite a few Jews are professed atheists. Jews are not a race of people. A tiny amount of DNA from original Hebrew tribes remains in some people today, including some dark-skinned Africans. Mr. Smiths politically correct attempt would appear to be the product of intellectual shallowness or malicious intent to discredit me and ruin my reputation with one of my publishers. July 31, 2012 Mr. Centorino: Further to my request to refer Jose Smith's denial of a public record request to the SAO, please consider the following from the special master's record including the most recent exchange (Word doc attached). His responses are not of the sort of any attorney I would want working for me. I ran them by a acquaintance of mine with a lot of experience up north, and she said his attitude is shocking and indicative of someone "who is caught." Maybe that is stupidity, arrogance and so on. Remember, the Miami Beach administration since the so-called Cuban Coup has been increasingly opaque and irresponsible for years, without much consequence besides a few federal busts that did not implicate the power elite. Mr. Smith may have been made arrogant by his cushy job. It is not easy to make a living in the law biz. A lot of lawyers drop out. Well, he becomes commissioner, which is lowly paid except for bennies known and unknown, and eventually gets the lucrative position of city attorney, alleged by old-timer conspiracy theorists to be the ultimate reward for his alleged assistance in the Cuban Coup that
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seized or negotiated the city administration away from the Jews, bringing in well-connected Jorge Gonzalez, and so on. Forgive me: That is urban myth beside the point. Just take a look at the gap between the Appeal (there is no circuit court record that I can find and he refuses to provide it) and the curt pragma by Mr. Rothstein dismissing the matter. One would think the attorney asserting the appeal with the Special Master and supposedly filing it in circuit court would make a written plea as to the alleged defectiveness of the notice. With Jose's denial that there is any other written record other than what the special master (and not his office) provided, the People are left to suppose that the appeal was sent only to the special master, and, as per lawyerly telephone discussions between the defendant's lawyer and Rothstein and/or Smith, a settlement was reached for the defendant to pay $2,500 fine, which was not owed if the notice was defective, instead of coughing up nearly $30,000 that should have been paid. I have not even considered the possibility a trip was made to the Lunch Truck. Please look at the Special Master File and think about it. Also consider how Jose tries to misrepresent my own statements to me. Don't you think the whole thing is weird? Or is this the way the Law works in Florida, most of it off the record with no account of what transpired? His final message to bring in the FBI I have misconstrued as a bullying tacticthe latest exchange, referencing the FBI, is in the Word.doc attached. No doubt FBI agents are all over the place, perhaps with moles inside the City Attorney's office for all I know. Almost every member of the political elite is trying to join the MBFFBI (Miami Beach Friends of the FBI) now, some even appointing themselves Deputy G-Men. Remember how Tilden almost made it into the White House bringing down Tweed, and how Tweed took the fall for everyone in the Ring, the rest getting off easy, the stooge of a mayor coming out smelling like a rose? I have no doubts whatsoever that everyone local will leave me out on the limb on this thing. Perhaps Jose will try to get the FBI to investigate me for asking pointed questions via interstate communications. That is why the most of us trust no one except the feds. I am winding this thing up soon and writing a summary report. I have some interest expressed from national media but don't know if that will pan out. I am not looking for fame or fortune so could care less about that. David Arthur Walters cc Jose Smith
July 30, 2012 To Joe Centorino, Director, Miami Dade County Commission on Ethics and Public Trust: My public record request and the due process issue are unrelated except the request was made to examine the process. I believe his denial is a violation of law don't you? And his reference to the FBI is inexplicable. David Arthur Walters
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July 30, 2012 To Jose Smith: Thank you for your generous offer. I knew Jorge said he was partner with Gmen. Et tu? Would lunch or dinner be served as was once traditional when dining with natives who had pointed questions? For crying out loud just send me the records I asked for and a brief elaboration of your learned perspective if you desire and you will get a fair and balanced report. David Arthur Walters July 30, 2012 To David Arthur Walters: Why don't you make an appointment and we can go together? We can then walk over to the FBI while we're at it. Jose Smith Note: Mr. Smiths reference to the FBI may be a veiled threat implying that I am somehow committing a federal crime by questioning his sovereign authority, so he would run me into the FBI. On the other hand, his superior, former City Manager Jorge Gonzalez, who was forced to resign in the wake of the arrest of several public employees by the FBI, announced during the height of the scandal that he was partnering with the FBI hence was humorously referred to as GMan Gonzalez. Other members of political elite have more recently publicly allied themselves with the FBI, asking people to bring complaints to the FBI if not to them. Residents who have had their complaints ignored by the same officials, or who did not complain for fear of retaliation, consider the requests exceedingly disingenuous. An official proposal to place a local cop in the FBI office was publicly protested by retired lawyer and South Beach activist Frank Del Vechhio on the grounds that such a placement might subject complainants, whose last resort is the federal government, to local retaliation. July 30, 2012 To Jose Smith: You have not complied with the public records request, therefore I shall see if the state attorney can assist me with the request. I see you are using the usual excuse. You do not represent the people, you represent the power elite. Mr. Austin would agree. David Arthur Walters NOTE: The allusion is to philosopher John Austin (1790-1859) and the theory of legal positivism, which denies the notion that law is posited by divinity or is grounded in human reason, and holds that laws are essentially commands posited by a recognized sovereign backed by threats of retaliation for disobedience. The law, then, is posited as the rule of men, of
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legislators, judges, and regulators, and is not the rule of an objective law independent of men. Sovereign commands may be condoned by reasoning, but no justification other than the threat and possibility of retaliation is required from high authority. Oliver Wendell Holmes Jr. in The Path of the Law asserted that there is no basis in reason for which contradictory legal reasoning is correct. Richard Posner recently posited that legal reasoning can dispense with the notion of the rule of law. Every lawyer has a little judge within, and a city attorney like Jose Smith may feel he and his staff have enough inherent sovereignty by virtue of high office to issue pragma with no other explanation than due process requires it. The rule of men is such that Mr. Smith is not required by law to advise or represent or explain anything to the members of the community inasmuch as they are subordinate to the power elite of which he is a member and to whose governors alone he must answer. Fortunately, since the ruling elite are elected, the community may dispense with his services indirectly. July 30, 2012 To: David Arthur Walters. All records you requested were already provided to you. Don't waste your time asking for the same thing multiple times. My office will not provide you with a tutorial on due process, service of process or constitutional law. Get your own lawyer! Jose Smith Note: This is the first time Mr. Smith asserted that all the records were provided to me. Apparently he is referring to the part of the file I obtained from the Special Master and sent to him, which he immediately responded to by way of insult and misrepresentation of my statements in my inquiry to him, dismissing my request by reference to the dismissal I questioned.
July 30, 2012 To Jose Smith: Attached please find my "Second Notice Public Record Request & Rebuttal to MB City Attorney Jose Smith" regarding the Special Master Case for 50 South Pointe Harbour 801 closed by your office with a loss to the city of $25,741 in fines. My request was made in conjunction with the SunPost series, "Getting Ahead of The Job Con." As per your request, I have quoted your comments in reply to my first request for the records, and have included
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remarks about the late A.C. Weinstein, to whom I gave a copy Pierre August Renoir's biography by his son a week before A.C. passed away, pointing out Renoir's philosophy of life, which he likened to a cork bobbing in a stream, i.e. going with the flow. Since I contributed several of my articles to the SunPost, I believe I should be entitled to at least one week as an honorary chief of staff to the mayor, and provided with for that brief term a darkened back office with access to the tools enjoyed by the political elite whom you advise. Again please take notice that any statements I make are not to be construed as a formal complaint against any public official whomsoever including your good self. I do not deny your good deeds and those of your staff. However, I have exercised my freedom to speak and have found fault with procedures and processes, and have often stated my opinion that the top three persons in your office should be terminated as soon as possible. Further, I did not insult your profession, yet you insulted mine by infering that I should not belong to it. So that you may have a better seat to sit in judgment in this matter, I am attaching a $30,000 chair the likes of which the former owner of the Continuum 801 could well afford a complete set. Sincerely, David Arthur Walters
30 July 2012 Jose Smith, City Attorney OFFICE OF THE CITY ATTORNEY City of Miami Beach 1700 Convention Center Drive, Miami Beach, FL 33139 Subject: Rebuttal, and Second Note re Public Record Request Dismissal of Special Master Case BV09001224 Fine $29,261.34 50 South Pointe Drive 801 Contractor Sharron Lewis Design Central
Dear Sir: Since I have virtually rehired you, I take this opportunity to reiterate my July 26 public records request, as follows: You may consider this letter as a request brought under Title I Section 24 of the Constitution of the State of Florida and Chapter 119 Fla. Stat. for any records whatsoever appertaining to the reasoning for the closure of the case and waiver of the lien. To clarify, since I all ready have in my possession the Special Master and Permit files, I seek your offices file to the exclusion of those documents. That would of course consist of any records including but not limited to letters, email, and notes appertaining to the case, and would be inclusive of any communications between your office and: property owner Margret Asgeirsdottir and her husband Skuli Mogensen; de facto general contractor Jihad Doujeiji; interior designer and licensed general contractor Sharron Lewis; employees of Sharron Lewis Design Central; property owner Ricardo D. Borkowski; special master Babak Movahedi; and owners counsel Harold Rosen. For your information, Mr. Doujeiji was companion to Ms. Lewis
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before her death in March 2011; she obtained a general contracting license to legalize his longtime activities as an unlicensed general contractor in Miami Beach and other municipalities. I am most especially interested in and request once again your copy of the record of any proceedings of the circuit court, which impliedly ruled on the issue of defectiveness of notice, for I was unable to find any such record before or after I contacted your office. Sometimes it is difficult to retrieve such records from the website due to spellings; e.g. it appears that the DWNTWN Miami clerk spells Beach in Miami Beach as BCH. You misrepresented in your email to me that I myself admitted that the notice was defective, taking my entire letter 26 July to you completely out of context: I wrote, The file I obtained from the city clerk discloses no legal reasoning whatsoever for lifting the lien and dismissing the fine except that the original notice was defective. I said the argument of defectiveness given by the defendant was specious. I was asking you to fill the gap in the special master file, between the special masters ruling and Mr. Rothsteins command: this case should be closed due to defective notice. I simply asked for Mr. Rothsteins motive i.e. his reason for issuing his pragma to the special master. A motive is a reason or cause for movement, and not an accusation, as you have misrepresented; I simply pled for more information, and my email clearly said that I was bringing no charges: The information and opinions in the letter are not intended as a formal complaint against any person public or private. Your misrepresentations did not defraud me into thinking I had done something that I had not done, but I figured they were negligent if not intentionally deceptive; therefore I fired you, but only figuratively speaking since you represent the city and not residents like me. You misrepresented me as saying that a fine of $2,500 had been imposed. I said the fine was Fine $29,261.34, and I did not fully understand the nature of the $2,500 deduction, supposing it to be some sort of concession or settlement without admission. That it was a fine as you say belies the argument that notice was defective and that the issue was settled in circuit court; for why would a fine be paid unless your office had argued to defendants counsel that the notice was not defective? Again, I presumed that your office might have sold out to defendants counsel by way of settlement, but the file I had left me uncertain of that therefore my request to you for the public record and your reasoning, which, with all due respect, appears similar to and therefore as specious as the argument dismissed by the special master. If you and/or Mr. Rothstein did sell out or cave to the property owner, you should consider whom you were dealing with: the owner and her husband have wealth beyond most peoples dreams. $30,000 to them is like the 30 cents in your pocket that you would not throw away but would not cry about if you lost it due to your own negligence. Neither would they rue the loss of $30,000 except that it went to a United States government agency instead of the purchase of a couch or perhaps a charity. They certainly are not so foolish to throw $30,000 to their attorney to save $30,000 unless they love him a lot. $2,500 is nothing to them. Let me remind you that Sharron, who lived at 400 South Pointe Drive, and Margret, who lived half the time at the subject property 50 South Pointe Drive 801, knew each other well. Both ladies and Mr. Borowski were aware of the violation. Sharron even acted as Margrets agent; the contractor at fault, Jihad Doujeiji, represented Margret before the special master in the hearing
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for mitigation. As you can see from the 9 September 2009 Notice of Commencement in the attached file, Margret swore and subscribed to a statement, prepared by de facto contractor Jihad Doujeiji and notarized by Sharron, that the owners were Ricardo Borkowski and & Margret Asgeirsdottir. There was a gap of a few days between the sale by Mr. Borkowski to Ms. Asgeirsdottir and the recording of the deed. Mr. Borkowski received the notice at the scene of the crime, as is evidenced by the record. Everyone concerned was aware of the violation, and no one should have been fooled by returned letters. Mr. Doujeiji resumed construction at the site, pulling permits bearing a total value of $123,100, paying thereon permit fees of $11,437. As you can see from my 26 July letter to you, I am concerned with whether or not all fees due including double permit fee penalties were collected. As you know from my considerable correspondence directed to your attention, Mr. Doujeiji adheres to what he claims is a traditional practice in respect to condominium work, evading fees via the Getting Ahead of The Job Con. Given the size of the condominium, I believe the city would find a construction value of up to ten times that stated on the permit applications. Finally, I once again reiterate my public record request, emphasizing my desire to see any record whatsoever that states the defective notice argument was upheld by a court of law. I intend to be persistent with this request given my previous experience with your office in respect to its obstruction of my request for drug screening and background records of a city contractor after misconduct and drug screening favoritism had been alleged. You apologized for that instance; I cannot bear to wait over a year for another apology. Sincerely, David Arthur Walters Journalist NOTE: Arguments go on ad infinitum over whether notices are defective or not, but my confusion as to the motive for dismissal here is that a witness had confided to me that the claim that the violator was not notified was specious, and, in another word, bull----, and that is why the special master refused to mitigate the fine. Strangely, the owner of the property did not appear before the special master, but rather the contractor (who was the de facto violator) and his employee showed up. Only the recording of the hearing, which the city attorney failed to turn over to me in response to my records request, revealed that a defective notice claim had not even made to the special master, nor was it ever asserted in writing by the attorney who asserted an appeal, but who did not file a petition with the court within 30 days as required by the rules for quasi-judicial appeals, the whole affair apparently being resolved off the record i.e. orally. An analysis of the process itself indicates that it was sloppy, and that, to be safe, another original notice with the owners name on it should have been served actually or constructively. I subsequently discovered other cases of probably defective notices due to sloppy procedure. My suggestion to officials to correct this by training and issuance of a manual on the subject was not responded to and apparently fell on deaf ears. Their jobs and rituals are set in concrete, and they simply do not care what outsiders may think or suggest. As Smith said, my efforts were conceived as an attack on the city itself. Occasionally, say, after FBI arrests, a consultant or
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employee with connections is hired and paid six figures per year to improve systems, but the improvements do not prove out. July 26, 2012 To Jose Smith: He spins because he inhales. Actually I tried to find the circuit case via search days ago but it did not turn up so I figured the city might have sold out but asked you for the justification and record and you responded with repetitive insults. If you were my lawyer I would fire you. Mention of AC suits your context because he sold out. Why fight City Hall if you can join them? David Arthur Walters July 26, 2012 To David Arthur Walters: Mr. Walters: AC Weinstein must be spinning in his grave! Jose Smith NOTE: The late A.C. Weinstein was an astute political operative and journalist who wrote for the SunPost for some time, wherein he was often critical of City Manager Jorge Gonzalez although he occasionally gave him credit for things well done. He was appointed chief of staff to Mayor David Dermer, and was inherited by Mayor Matti Bower when she came into office on Mr. Dermers coattails. Since his appointment to office, he Mr. Weinstein was helpful to the community but defended instead of fought the city hall he worked for. Barbara Wakefield, another journalist for the SunPost, replaced Mr. Weinstein as Mayor Bowers chief of staff. She was fired shortly after the FBI arrested seven public employees for corruption, for what the mayor called a lack of communication. She took the fall for the mayors lack of responsiveness to a virtual deluge of complaints about the citys administration. Mayor Bower was extraordinarily close to City Manager Jorge Gonzalez.
Matti Bower, Jorge Gonzalez, Jose Smith
July 26, 2012
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To Steven Rothstein Esq.: Apparently your boss Mr. Smith was personally insulted by my reference to you in the attached letter, and responded protectively. But I do not think you would be so incensed by my statement therein as follows: "The file I obtained from the city clerk discloses no legal reasoning whatsoever for lifting the lien and dismissing the fine except that the original notice was defective. Since the Special Master would have none of that argument, it is reasonable to question Mr. Rothsteins motives for the decision, hopefully based on legal reasoning supported by case law if not your specific instructions as his superior. In any case, I believe your office should be accountable to persons besides the City Manager and the City Commissioners, and the public has a right to know why the violator got away with murder in this case, figuratively speaking." The Master's file in my opinion should have given grounds for your closure of the case. I stand by for a copy of the circuit court case. By the way, I was the person who tried to forewarn you via email of what was really going on in re the fraudulent application for a permit at Sunset Harbour TS3 - you did not respond. After my persistence, the work was stopped, and after my persistence, double permit fees have been assessed. Best Regards, David Arthur Walters
July 26, 2012 To Jose Smith: Thank you very much for your immediate comments. Finally I have gotten a rise out of you. In direct response to your outrage, I believe that I am a better journalist than you are a lawyer, so there you go. In the past you have been a wooden Indian with nary a word about your office's slipshod work in respect to permitting and other vital matters. I have repeatedly asked you for your assistance with the investigation of the contractor involved in this matter and related matters, and you were silent. Your law department in my opinion and with any respect due has been instrumental in the demoralization of the city, although it is said that it has improved since the good old days. That being said, I am glad you were so fully versed on this matter. As I said, I assumed I had the full record on the matter, but just in case the city record was inadequate, I asked for an explanation, which you have incompletely given by way of reference to a court case (thank you) not even mentioned in the file, but without copy or citation, and I certainly hope you shall send an image of the case along as per my public record request. I shall indeed quote you but without an apology, dear sir, for you who owe me at least an equal apology. But I require none since you have responded in the heat of the moment, which is understandable and forgiven. David Arthur Walters,
July 26, 2012 To David Arthur Walters: My comment is that before you accuse anyone of wrongdoing you should know the subject you are writing about! ...and you call yourself a "journalist? While you concede that "the original notice was defective" (a due process violation), you incredibly assert that there is "no legal reasoning whatsoever for lifting the lien and dismissing the fine". Are you serious? What are you talking about? The city issued the violation to a person who no longer owned the unit. The city did not issue the violation against the actual violator who did the
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unpermitted work. The city improperly tried to join the violator in the case without proper service. An appeal to the circuit court was filed. Mr. Rothstein did the only ethical, legal thing he could do, to wit: dismiss the case. And by the way, your own records show that the subsequent owner paid a $2,500.00 fine after the work was legalized. An apology to Mr. Rothstein is certainly in order, and you can quote me on that! Jose Smith To Jose Smith: Attached is my letter addressed to you and supporting documents on the subject of Steven Rothstein's closure of a Special Master Case and waiver of lien in respect to work started without a permit by Jihad Doujeiji dba Sharron Lewis Design Central at 50 South Pointe Drive 801, leaving the city holding the bag for $26,741.34. A Constitutional public record request is made therein, and related matters are also discussed. The information and opinions in the letter are not intended as a formal complaint against any person public or private. I look forward to your response. I have a deadline coming up for the next article in my series, Getting Ahead of The Job Con, and hope that I may include some of your comments therein. File and Letter attached) David Arthur Walters, July 26, 2012
26 July 2012 Jose Smith City Attorney Office of the City Attorney CITY OF MIAMI BEACH 1700 Convention Center Drive, Fourth Floor Miami Beach, Florida 33139 Subject: Dismissal of Special Master Case BV09001224 Fine $29,261.34 50 South Pointe Drive 801 Contractor Sharron Lewis Design Central
Dear Mr. Smith: Good Day, I hope this finds you well. Attached please find 24 pages of significant documents that I have culled from the 84-page Special Master File captioned above, which I assume is all the record provided by the city clerk pursuant to my public records request. The owner of 50 South Pointe Drive 801 was cited for proceeding with construction without a permit. That construction was being performed by Jihad Doujeiji for Sharron Lewis Design Central. The mailed notice delivered to that address bore the name of the owner who had sold the unit a few days prior to the recording of the deed. He received it and objected, and the city corrected the name and directed notices to that same address bearing the name of the right owner, as well as to that owner c/o Sharron Lewis Design Central, since that company was representing the owner in the matter, the fact of the matter being that the owner blamed the
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contractor for the violation and was refusing to pay him until he got rid of the problem. The fine was running towards $30,000 when mitigation was sought based on the claim that the wrong person was originally notified, but the Special Master would have none of that specious argument when Mr. Doujeiji and his assistant appeared before him on 11 August 2011. Harold Rosen, Esq., appealed for the owner on 29 August 2011. On October 5, 2011, your first assistant attorney, Steven Rothstein, ordered that the Special Case be closed, resulting in a loss to the city of $29,261.34 less $2,520, or $26,741.34. The file I obtained from the city clerk discloses no legal reasoning whatsoever for lifting the lien and dismissing the fine except that the original notice was defective. Since the Special Master would have none of that argument, it is reasonable to question Mr. Rothsteins motives for the decision, hopefully based on legal reasoning supported by case law if not your specific instructions as his superior. In any case, I believe your office should be accountable to persons besides the City Manager and the City Commissioners and that the public has a right to know why the violator got away with murder in this case, figuratively speaking. Therefore, in addition to this request for your explanation, you may consider this letter as a request brought under Title I Section 24 of the Constitution of the State of Florida and Chapter 119 Fla. Sta. for any records whatsoever appertaining to the reasoning for the closure of the case and waiver of the lien. Pending your response, I shall be studying the permits pulled to rectify the violation and to build out unit 801, which was big project inasmuch as 801 was combined with 807 and 808, requiring the demolition of wall, extensive new electrical and plumbing, A/C, and so on. It may be that the city failed to collect full fees on what I guess was a $1,000,000 project. My guess is based on a more current instance of similar conduct by the same de facto general contractor at 1800 Sunset Harbour TS3, a project inadequately reviewed, and approved by Mr. Rothstein. The Special Master case resulted from the modus operandi of general contractor Sharron Lewis Design Central, solely operated by unlicensed general contractor Jihad Doujeiji ever since his wife, Sharron Lewis, the qualified agent of the firm, died in March 2011.To wit: attempt to complete condominium projects without a permit, with the city being nothing the wiser, or pull a permit at a low value and small scope of work, say for demolition or flooring, and build out the space without a permit for the renovation, the city being nothing the wiser. This is known in the local industry as the Getting Ahead of the Job Con. You should recall I took the liberty of repeatedly acquainting you with this practice in regards to a fraudulently obtained permit for demolishing an imaginary kitchen and bathroom in the completely empty penthouse space at 1800 Sunset Harbour TS3. The de facto contractor on that job is still unlicensed contractor Jihad Doujeiji dba Sharron Lewis Design, for whom permit fixer Orestes Rusty Innocenti induced a licensed contractor to sign the permit for piggybacking. My persistence led to a stop work order being issued in May 2012. In order to get paid by the owner, Mr. Doujeiji is now claiming he completed nearly $500,000 in work at Sunset Harbour before being caught. If caught, the violator pulls the necessary permits, any double-permit fee penalty and fine being considered a traffic ticket accrued in the course of multimillions of dollars in business. According to my information from an unlicensed permit fixer or expeditor and contractors,
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including statements made by Mr. Doujeiji to others, the double-permit fee is waived for friends of the city who make a special plea for amnesty to the right officials. The fee for the fraudulently obtained and then rescinded permit BD120153 at Sunset Harbour TS3 was $947.98. The fee on the new, May 29 permit application BD1203805 was initially stated at $24,351.93. On June 17, we were informed by someone who does some expediting himself that the Building Department opposed assessing double-permit fee penalties for getting ahead of the job and were inclined to waive them. We troubled Mr. Scott about our sources statement regarding the waiver of penalties, to which he responded that our source was incorrect. The pertinent fees were then virtually doubled: the July 6 Receipt of Payment shows a total fee of $46,945.80, for an additional fee of $22,593.78. If the contractor had completed the project on the basis of the demolition permit and gone undetected, the owner would have saved nearly $46,000 altogether. City Manager Kathy G. Brooks in a memo to the Land Use Commission dated 25 July 2012 recommended that the Building Department be encouraged to continue to exercise flexibility when an owner initiates attempts to correct work done without permits. (Emphasis added). That practice directly contradicts and subverts Section 109.4 of the Florida Building Code. Her memo purports to address rare situations when the violators turn themselves in before being caught defrauding the city of fees to which it is entitled, and the right to protect the community from hazards. However, in actuality I believe it is an attempt to condone a longstanding practice conducive to public corruption and moral turpitude, a practice that rarely had to do with confessions of prior sins, and encourages contractors to continue to lie and cheat the city out of millions of dollars. According to hearsay, Mr. Doujeiji himself has said that it is easy to get away with not paying double permit fees. With all due respect to yourself, I believe that your office is partly responsible for fashioning this kind of conduct via slipshod practices that create an appearance of impropriety and suspicion of public corruption in the highest quarters; of course statistics show that that is where the greatest corruption takes place in both the private and public sectors. You may recall that you asked me to explain what I meant by my conjecture, that your office was sleeping on the documents, perhaps stultified and stupefied by routine. I took the trouble to respond but you did not get back to me, wherefore I figured that your silence confirmed my observation, or that you agreed with your Building Department permit reviewer Rhonda Montoya, who apparently deems any opinions I have that may reflect badly on Building Department and City Attorney procedures as a misstatements. Mr. Doujeiji is undoubtedly distressed by my investigation into what he insists everybody does, and I understand that he is telling people that he is going to get me. I have repeatedly asked him for his side of the story in vain, and have asked him to disclose the names and conduct of officials who encourage what everybody does and who take advantage of certain contractors by pretending to be their friends. I see his name in Building Department communications yet everyone I have spoken with denies knowing him. He probably feels that I am out to get him. But he is mistaken. I am out to hold officials accountable for virtually manufacturing, by their neglect, ineptitude, and even worse, the misbehavior they are charged with preventing, to the extent it becomes what everybody does. I hope that you may assist me in this thankless task.
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I look forward to your response. Sincerely, David Arthur Walters Journalist
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The Defective Process of Miami Beach City Attorney Jose Smith

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