SHOWDOWN AT HIGH NOON
Miami Beach City Attorneys versus Special Masters
Unexpurgated and updated version of article featured by the SunPost Weekly
Updated: 1 September 2012
By David Arthur Walters
There was showdown at high noon on Wednesday August 22 between the City Attorneys and the Special Masters. The feuding parties dueled before the legal oversight committee in the City Manager’s meeting room. It was a steamy day, the only relief inside, besides the air conditioning that failed to cool the hottest heads, was the ham sandwiches, sweets, and sodas from the Publix. Alas, a can of Coke exploded and there was no mustard!
Special masters are city magistrates who constitute a quasi-judicial tribunal that hears and disposes of local code enforcement cases. The special magistrate system is an alternative to municipal code enforcement boards, relatively autonomous boards of citizens authorized by the state legislature. It was believed that autonomous boards or tribunals would go easier on accused code violators provided that they promptly and faithfully comply, or the violation is not grave enough to warrant the amount of fine imposed, or the fine is too high compared to the equity in the property at stake. In the event that special masters did not mitigate enough, City Attorney Jose Smith drafted an ordinance approved by the commission that allows someone in the city manager’s office to reduce the fine if it is under $100,000, or the commission to do so if it is $100,000 or more.
Aggrieved folks believe there has been too much mitigation or there has not been enough of it. Statistics on the amounts of mitigation in comparison to totals fined over the last few years by special masters, the city manager’s office, and the commission, were unavailable at press time.
I first got wind of the feud from the SunPost after the City Commission took up the City Attorney Jose Smith’s proposal to fire Chief Special Master Abe Laeser and replace him with Special Master Enrique Zamora, who would then fire Special Masters Joe Kaplan and Babak Movahedi. A chief special master is appointed by the city on advice of the city attorney, and the chief hires the others. Mr. Laeser said that a subordinate special master job was secured for him because Mr. Zamora liked him and would keep him on as a subordinate. Mr. Zamora was not at the meeting because he was away in Cuba handling estate cases, explained Mr. Smith, who also hails from Cuba. Mr. Smith, in his August 22 Commission Memorandum, which was handed out again to members of the legal oversight committee, noted that there had never been a complaint about Mr. Zamora. He attached several complaints about the others.
A resident had accused Mr. Laeser of allowing cases to drag on and on. Another said vigilantism against party house operators was contemplated by residents because of the delays. The president of a condominium association complained that Mr. Kaplan was forgetful due to his age, but she had “heard very good things about Mr. Zamora.” Unbridled rancor was reserved for Mr. Movahedi, and it came mostly from the city lawyers, particularly Mr. Smith and his assistant, Alexandr Boksner, and one private practitioner, who was somewhat embarrassed by a formal investigation into his complaint.
Mr. Movahedi, an international corporate lawyer licensed to practice in the District of Columbia, was born in Tehran and raised in the United States. He obtained his MBA from the prestigious George Washington University, and his JD and LLM degrees from Georgetown University. He was elected a neighborhood commissioner in D.C., where he was involved in Democratic politics for many years, and owned and operated a famous gay bar called the Mova Lounge. He moved to South Beach in 2007, and opened another Mova Lounge, on Michigan Avenue right off Lincoln Road. Mayor Matti Herrera Bower appointed him to chair the Miami Beach LGBT Business Enhancement Committee in 2008, and he was applauded by the community for leading the city’s first Gay Pride event—he was dubbed “the Pied Piper of Miami Beach Pride.” He was appointed special master on March 10, 2010, by Chief Special Master Abraham Laeser, who said Mr. Movahedi had the requisite “knowledge, skills, and abilities” for the job.
Mr. Movahedi’s high education was rounded out locally when his lounge was cited for a dozen violations during an annual fire inspection. He protested that different inspectors had not cited him for the same conditions on previous visits, complained of inconsistent inspection reports and misinterpretations of law, and threatened to take the matter to court. The inspector tried to appease him, telling him that positive improvements had been made to the inspection process including better training, but he was not satisfied. Fire Marshall Sonia F. Machan interviewed him and found him “very agitated and frustrated, but respectful.”
To provide our coverage of the showdown between the city attorneys and special masters with better balance, we contacted Mr. Movahedi’s archrival, Alexandr Boksner, and asked him about the legal pretext he had referred to during the meeting for his dispute. We also made a suggestion for improving the system, and asked him for some biographical information since his bio was the only one missing on the city attorney’s web pages:
“Alex, 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, does 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.
Mr. Smith replied in his stead, stating that:
“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.”
Since we had had previous difficulties obtaining public records from the city attorney, we checked with City Clerk Rafael Granado about Mr. Smith’s refusal, only to find that public records law only precludes information of the type that would never appear on any city attorney’s web page anyway. Since permitted biographical information was not forthcoming, we turned to the Internet, to discover that Mr. Boksner lived in Surfside, Florida, where the day after the legal oversight meeting, on August 23, he was scheduled to preside as “special magistrate” himself, for “10 cases pertaining to Town of Surfside Code Of Ordinances.”
We also found that Mr. Boksner had applied for a job with Osceola County on May 5. His published application listed Mr. Smith as a reference as well as Miami Beach Commissioner Jonah Wolfson, whom he stated he had known since 2001. He graduated from the Toledo College of Law that year, after obtaining his AA degree from Ohio’s Cuyahoga Community College and his BA from University of Cincinnati. He obtained a license to practice from the Florida Bar in 2001, and, according to his Linked In page, worked as assistant state attorney in Miami-Dade County for three years, until August 2004. That job was not listed on the Osceola application, which starts with his employment in February 2005 as assistant attorney with Charlotte County, leaving there in December 2008 at a monthly salary of $7,291, for a job as chief assistant county attorney for Marion County until March 2009, at an ending salary of $7,916. He took a job with the City of Miami Beach that month, and his 2011 job application with Osceola County shows his Miami Beach salary to be $9,167. His application also lists a Tennessee license to practice law, and states that he speaks Russian fluently.
Mr. Smith, by the way, received his BA from the University of Florida in 1971, and his JD from same in 1973. He was engaged in the private practice of law with two firms from 1983 to 2006, also serving as Miami Beach commissioner 1997 to 2005, and was appointed city attorney in 2006.
Now the attorneys and judges were ganged up at opposite ends of the conference table at the legal oversight conference. The SunPost had mentioned “bad blood” between the city attorney’s office and Judge Movahedi. It was indeed evident that Mssrs. Movahedi’s and Boksner’s blood was at the boiling point.
Mr. Laeser, a former prosecutor, maintained judicial decorum: he was quite reserved and reasonable, reining in Mr. Movahedi, who was as girded for battle as Mr. Boksner. Mr. Kaplan was calm and remote except when he shouted “liar” a couple of times—the lawyers on the other end of the table threatened to produce transcripts.
The affair reminded me of the Hatfield and McCoy dispute over the ownership of a McCoy pig that had wandered onto Hatfield land, where the Hatfields laid claim to it. Of course the famous Hatfield and McCoy trial was really not about the pig, but was about the relative dignity and honor of the feuding families that wanted justice, i.e. vengeance. They were divided by Big Fork, a tributary of the Big Sandy River. This reporter can certainly understand Irish ire since he is remotely related to the Hatfields, not to mention kings and traitors.
The city attorneys and special masters were divided by the conference table instead of a creek, and they had more than one pre-textual pig. The pigs in the poke were named Statute of Limitations, Discovery, Ordering Inspections, and Equitable Estoppel.
Someone mentioned that a special master had ruled that the city should not be able to take current action on a violation that had occurred many years ago unless that violation put the public in danger.
Even worse, Judge Movahedi believed that due process should allow a defendant to discover whatever information the city might have that would help his case. But the law implementing the special master agency states that the Florida Rules of Civil Procedure governing discovery did not apply to it—yet the statute was silent on what sort of discovery could be ordered by the quasi-judicial agency. Assistant City Attorney Rhonda Montoya Hasan sympathized with the judge’s wish for adequate due process, but the means to it remained a point of contention. She suggested making public records requests. Ms. Montoya Hasan, incidentally, has been practicing law with the city since 1997. She holds a BA degree from Duke University, and received her JD from the University of Miami in 1996.
Furthermore, Mr. Movahedi had dared to “order” an inspection of structural damage to see if it endangered the public, when he should have merely “requested” it because he had no state statutory authority to order a building inspector to do anything at all. However, although the transcript did have Mr. Movahedi “ordering” an inspection, his order was really a “request,” as we can see from John Austin’s Lectures on Jurisprudence, whichaptly drew the semantical difference between and order and a request long ago: “A command is distinguished from other significations of desire, not by the style in which the desire is signified, but bv the power and the purpose of the party commanding to inflict an evil or pain in case the desire be disregarded. If you cannot or will not harm me in case I comply not with your wish, the expression of your wish is not a command, although you utter your wish in imperative phrase.”
Equitable Estoppel was the fattest of all the rather bony pigs in the poke. A government can be stopped from penalizing someone who relies on its word or conduct that there would be no penalty in that situation. To do otherwise would be inequitable or unfair.
There are several received forms of equity. The classic example of the difference between law and equity was given by Blackstone: the law states that the last man on board a capsized vessel had salvage rights, but if the man was last because he was asleep in his bunk, he should not have those rights. There used to be separate equity courts, but now courts can consider equitable principles as well as the strict law. The city’s Notice to Violators – Late Compliance’ instructions state that “Legal or Equitable reasons” may be presented in the Special Master court.
Judge Movahedi had a case before him involving the purchase of property with the understanding that the city had allowed or would allow parking on the property, but the city apparently did an about face after the property was purchased, and went after the new owner. Judge Movahedi asked a city attorney for pertinent case law on the subject, was presented with same, and then stopped the city from making good on its claim.
That ruling rankled Mr. Smith, who stated in a June 12 email that “This ruling is erroneous and must be appealed forthwith. The notion of ‘equitable estoppel’ is JUDICIAL remedy, and not the purview of a Special Master. There is either a violation or not. The Special Master exceeded his authority. Abe, I’ve had enough of this nonsense!”
To the best of our knowledge at press time, the judge’s estoppel ruling was not appealed despite the continued insistence that it was illegal.
As far as the city attorney and his staff are concerned, code enforcement tribunals are not even a court although we noticed a higher court referring to them as trial courts. Questions of equity, the city attorneys believe, can only be decided on appeal to a real court, in this situation a circuit court. Again, Mr., Smith insists that “special masters are neither judges nor magistrates.” The special masters doubtless disagree despite their “quasi-judicial” status, and feel their tribunal should be independent of the executive and legislature to a certain extent. In response to further inquiry, Mr. Smith acknowledged that the special master ordinance can be repealed without referendum and the city be rid of the special master agency forever.
We recall President Jefferson’s effort to smother the fledgling Supreme Court in its crib, conspiring to impeach judges for political reasons, although there was admittedly afoot mental infirmities, judicial errors, and moral turpitude, including a great deal of liquor to boot. Of course an analogy with the special master court would fail here if it is unconstitutional.
Given that there are two sides to this ongoing feud, one might wonder why the Commission should not consider replacing the city attorney and his staff instead of the special masters. It appears that the case presented to the commissioners was stacked against the special masters. The little “book” of complaints that the city attorney threw at the special masters included a letter from an attorney, Martin Wasserman, lauding him as “an honorable, excellent attorney and leader of our legal department,” with “a keen sense of direction that is in the best interests of the city.”And, he said that Mr. Zamora, the city attorney’s choice for chief special master, “is an excellent attorney, very highly regarded by the Probate Judges, and would be a credit to the City.”
Mr. Smith included another letter from an attorney, one Raul Morales, who said that he had attended his first hearing before Mr. Movahedi, where he discovered that he lacked professionalism, common courtesy, respect, and class, that he was aggressive, condescending, and downright rude, noting that he did not even have a license to practice law in Florida. A subsequent investigation that included listening to the recording of the hearing found that “there is no discernible evidence of any change of vocal tone, argumentative speech, or inflections reflecting any improper disagreement.” In fact there was “no indication of bad feelings between any persons.” Mr. Morales “admitted that no bad language or insulting words were used.” In fine, Mr. Morales, who regretted that his complaint had resulted in a formal investigation, had regretfully misjudged the judge’s mannerisms, his rapid speech, his way of leaning forward, and the like.
Although ethnic differences and cultural values are being discussed as a legitimate concern during the current presidential campaign, we might risk being politically incorrect to say that Babak Movahedi was misperceived because of his energetic temperament, partly due to his physiognomy, as well as his cultural background, which includes hatred for grand ayatollah lawyers, and compare his temper to the stereotypically fiery Latin temper, and the stereotypical aloofness of Jewish intellectuals. We certainly do not wish to aggravate the bad blood and groundless hatred of the human race itself here with an elaboration of the issues including original sin and the conduct of Abel and Cain.
Ms. Montoya-Hasan said the situation had become so troubling that certain cases were being reassigned to other special masters. Of course, selecting compatible judges is nothing new to the legal profession.
Mr. Movahedi was most incensed by a statement that Mr. Boksner had made in open court, to the effect that he had no right to interpret Florida law because he did not even have a license to practice in this state. Mr. Boksner replied that he was simply making the objection as a ground for appeal. Furthermore, he did not appreciate Mr. Movahedi acting like a circuit court judge.
“The special master is supposed to apply the facts to the law,” Mr. Boksner said.
“My job is to apply the law to the facts,” Mr. Movahedi retorted.
Commissioner Ed Tobin, who acted as a reasonable arbiter, said that Mr. Boksner’s comment about licensing was out of line because a special master does not have to have a Florida license or any license at all for that matter. Commissioner Tobin is a former prosecutor and a recent graduate from the police academy. He observed that Mr. Boksner was an aggressive prosecutor making his case, perhaps too aggressively. Anyway, he said, he did not see why he should have to dismiss a special master simply because the city attorney disagreed with him.
“Babak is raising the bar,” he said, and should be valued for that.
Mayor Bower, from the very beginning of the committee meeting, noting that the disputes were about a small number of cases, viewed the matter as a personality clash. She was tired of the lawyerlike quibbling. It was an HR issue rather than a legal one. She advised the disputants to have more respect for one another.
Mr. Boksner then held his peace. However, as the meeting adjourned, a duel nearly broke out between Mr. Smith and Mr. Movahedi.
“You are not a circuit judge,” Mr. Smith said. “You cannot legislate! You must abide by the law.”
“That is what I did! You, sir, have an opinion on what the law is, but that is not necessarily correct. If you do not like a ruling, then you can appeal.”
Lacking seconds for the fray, the imminent duel was quashed, leaving a Mexican Standoff.