By David Arthur Walters
There was showdown at high noon last Wednesday between the City Attorney’s officers 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 hot heads, was the ham sandwiches, sweets, and sodas from the Publix—even then, a can of Coke exploded.
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 replaced 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. Laeser said that a subordinate special master job was secured for him because Zamora liked him and would keep him on as a subordinate. Zamora was not at the meeting because he was away in Cuba handling estate cases, explained Smith, who also hails from Cuba. The City Attorney, 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 Zamora. He attached several complaints about the others.
A resident had accused Special Master Laeser of allowing cases to drag on and on. Another said vigilantism against party house operators was discussed due to the delays. The president of a condominium association complained that Kaplan was forgetful due to his age, but she had “heard very good things about Zamora.” Unbridled rancor was reserved for Movahedi, which came from the city lawyers, particularly Smith and his assistant, Alexandr Boksner.
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. His 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.”
We asked Boksner, about the legal pretexts of their dispute, and asked him for some biographical information since nothing appeared on the city attorney’s web pages. Smith replied for him, 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.”
The attorneys and judges were ganged up at opposite ends of the conference table at the legal oversight conference. The SunPosthad mentioned “bad blood” between the city attorney’s office and Judge Movahedi. It was indeed evident that both Movahedi’s and Boksner’s blood was at boiling point.
Laeser, a former prosecutor, maintained judicial decorum: he was quite reserved and reasonable, reining in Movahedi, who was girthed for battle. Kaplan was calm and remote except for shouting “liar” a couple of times―in response, 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. They were divided by Big Fork, a tributary of the Big Sandy River.
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.
He had “ordered” an inspection of structural damage to see if it endangered the public, when he should have merely “requested” it because he had no statutory authority to order a building inspector to do anything. Furthermore, there was another procedure for dealing with emergency situations. John Austin’s Lectures on Jurisprudence dispensed with the semantical difference long ago, with: “command is distinguished from other significations of desire, not by the in which the desire is signified, but bv the powerthe 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. 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 does 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. 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 the city attorney, who stated in a June 12 email that “This ruling is erroneous and must be appealed forthwith. The notion of ‘equitable estoppel’ is a 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, 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, Mhe acknowledged that the special master ordinance can be repealed without referendum and the city be rid of the special master agency forever.
We are mindful here of 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.
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 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.”
Smith included another letter from attorney, Raul Morales, who said that he had attended his first hearing before 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.” Morales, subsequently “admitted that no bad language or insulting words were used.” He 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.
Rhonda Montoya-Hasan said the situation had become so troubling that certain cases were being reassigned to other special masters.
Movahedi was most incensed by a statement that 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. Boksner replied that he was simply making the objection as a ground for appeal. Furthermore, he did not appreciate Movahedi acting like a circuit court judge.
“The special master is supposed to apply the facts to the law,” Boksner said.
“My job is to apply the law to the facts,” Movahedi retorted.
Commissioner Ed Tobin, who acted as arbiter between the two, said that 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. He observed that Boksner was an aggressive prosecutor making his case, too aggressively and he did not see why he should have to dismiss a special master 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, vi
Boksner then held his peace. But, just as the meeting adjourned, a verbal duel nearly broke out between City Attorney Smith and Movahedi.
“You are not a circuit judge,” 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.