the topsy turvy case

7/27/2019 The Topsy Turvy Case

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MIAMI MIRROR TRUE REFLECTIONS

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Drawing by Darwin Leon

THE TOPSY TURVY CASEThe Ire of City Attorney Jose Smith over Two Cars in a Miami Beach Driveway

August 22, 2013

By David Arthur WaltersTHE MIAMI MIRROR

Miami BeachCity Attorney Jose Smith received a devastating pyrrhic victory on June 27,2013, at the hands of the Florida Eleventh Circuit Court in his appeal of Special Master Babak

Movahedis decision in favor of Stephen and Nancy Bernstein.The Bernsteins purchased property with the understanding that the city had allowed or wouldallow them to park two cars in the driveway, but the city did an about face after the property waspurchased, and cited them for violating Section 130-61 of the Municipal Code.

Administrative magistrate Movahedi stopped the city from making good on its claim, citing aprinciple of equity law called Equitable Estoppel after an assistant city attorney provided himwith research on its applicability.


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With the exception of Delaware, the United States does not have separate equity courts. Ourcourts handle both cases at law and in equity. Separate courts of equity were established inBritain to provide natural justice where the common law courts supplied no remedy. Forexample, a man conveys his property to someone for safekeeping while he is away on a crusade,

but when he returns, repossession is denied to him. There being no specific law yet formulatedrequiring the return of his property, he brings his action in a court of equity so that the scales ofjustice may be balanced with an equitable or fair solution. Blackstone gives an example ofequity: The law provides that the man who is last aboard a floundering ship has it for salvage,but equity says not if he is last because he fell asleep.

Movahedis equitable ruling rankled Smith, whose office serves as prosecutor in codeenforcement cases. Smith identifies himself as the city itself, and sometimes he seems toconceive of himself as a sovereign with unlimited discretion, infallible judgement, and absoluteimpunity, an attitude long condoned by the city commission. He stated in an irate June 12, 2012,email to Chief Special Master Abe Laeser that This ruling is erroneous and must be appealed

forthwith. The notion of equitable estoppel is JUDICIAL remedy, and not the purview of aSpecial Master. There is either a violation or not. The Special Master exceeded his authority.Abe, Ive had enough of this nonsense!

Smith certainly was not in an equitable mood at the time, especially where Movahedi wasconcerned. He had prompted an investigation into the magistrates courtroom demeanor becausethe administrative magistrate had refused to go along with his offices wheeling and dealing withviolators before rendering findings of fact and conclusions of law.

Movahedi insisted that any backroom deals be made after his decisions were made. Residentswere blaming the special masters for preferential treatment or selective enforcement when it wasreally the city attorney who was making many of the deals, ostensibly on behalf of the citymanager, whose office may reduce or write off fines imposed up to $100,000, pursuant to anordinance drafted by Smith. Sums over that amount may be reduced or written off by the citycommission. The writeoffs are not accounted for, and Smith has called a proposal to account forthe writeoffs of fines as well as the mitigations or fine reductions of the special mastersmoronic, stating that all that needs to be done is to follow the law, meaning the law of hissovereign discretion.

Smith, displeased with what he perceived as Movahedis blatant insubordination, tried to getChief Special Master Laeser fired and replaced by Special Master Enrique Zamora, who wasthen expected to fire the disobedient special master who had bucked Smith and his seniorassistant, Alexandr Boksner.

Enrique Zamora is a prominent advocate for Cubans who fled to the United States with therevolutionary advent of Fidel Castro. For example, he has represented the interests of Cubanswhose property was confiscated when Castro overthrew the corrupt Batista regime.

Boksner is known as Smiths attack dog in his capacity as Smiths police liaison. He wasmoonlighting as a special master himself for the Town of Surfside at the time, besides workingfor the Coral Gables Police Department. Boksner had insulted Movahedi in open court, stating


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that the magistrate had no right to interpret Florida law because he did not even have a license topractice in Florida, and that he did not appreciate him acting like a circuit court judge in applyinga principle of equity.

Special masters do not have to be licensed by the Florida Bar. Movahedis credentials are

actually superior to Boksners. Movahedi is an international corporate lawyer licensed to practicein the District of Columbia. He was born in Tehran and raised in the United States. He obtainedhis MBA from the prestigious George Washington University, and his JD and LLM degreesfrom Georgetown University. He is also a leading gay rights activist.

Ethnocentrism if not homophobia was apparently at play in Smiths rancorous campaign againstMovahedi. Smith is known for his intemperate and often defamatory remarks about people whocriticize his behavior or pose challenging questions. City Manager Jorge Gonzales, who wasforced to resign in 2012 after several F.B.I. arrests resulted in a scandal over his arrogance andlack of oversight, had favored hiring Cuban Americans during his dozen-year tenure, resulting intheir virtual domination of the city administration.

The city commission was usually dominated by Jews after their successful struggle againstdiscrimination in Miami Beach, although at one time it had an Hispanic majority, when Smith, aJewish Cuban-American, was a commissioner. Commissioners serve on a part-time basis andare paid a measly $6,000 per year. Smith derived some income from his private law practice,where his family was presumably his main client. Smith has vehemently denied, in derogatoryterms, that he received his lucrative city attorney job in 2006 in exchange for not running againstMayor David Dermer, as is claimed by longtime political observers. His salary in 2012 is listedby the city at $220,566, and retirement benefits are more than ample. Smith said he doubted thatbeing both Jewish and Hispanic would have a bearing on a candidates electability, and callsanyone who mentions the historical ethnic struggle for power in Miami Beach a racist, andapparently believes that the open discussion of the ethnic issue is reprehensible.

However that may be, Smith, incensed by what he felt was Movahedis insubordination,somehow managed to have obtained a letter from a private attorney, one Raul Morales, for theinvestigation into Movahedis courtroom demeanor. That letter bore the badges of vitriolcharacteristic of Smith himself. Another letter from another attorney praising Smith made its wayinto the file.

Morales said he had attended his first hearing before Movahedi, where he discovered thatMovahedi 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 inFlorida.

However, the subsequent investigation that included listening to the recording of the hearingfound 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 badfeelings between any persons. Morales admitted that no bad language or insulting words wereused. Morales, who said he regretted that his complaint had resulted in a formal investigation,and that he had regretfully misjudged the judges mannerisms, his rapid speech, his way ofleaning forward, and the like.


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Chief Special Master Abe Laeser, a former prosecutor, resisted Smiths efforts to rule the quasi-judicial court, an administrative facility created by the city under authority of state law to allowmunicipalities to enforce their local codes.

Replacing me would be to allow the City, a party to every case that is heard by a Special

Master, to decide who their Judge should be, he said in his July 16, 2012, letter to Mayor MattiHerrera Bower. If you believe that the attorney representing the City should have the power tocontrol the hiring and firing until he gets the Judge he wants; perhaps the attorney for the personcharged should also have that power. Does that make any sense to anyone? How does that createthe independence we search for? Or is it tantamount to fixing the deck? How can the chargedparty ever believe that they could get a fair hearing when they know that the Judge may be firedfor ruling in their favor? This is precisely what the hidden issue is public perception offairness.

Clearly, the issue over whether or not a special master has the authority to apply a formalequitable principle was a pretext for the outraged city attorneys campaign to get rid ofMovahedi for perceived insubordination.

All law is ideally derived from equity or fairness, but Smith insisted that it should not be appliedin any formal sense by the special master court because it is not a court like the constitutionalcourts, of which the circuit court has exclusive original jurisdiction over formal cases of equityor forms of natural justice as distinguished from cases involving prescribed law. But that is a rulefor constitutional courts, and justice does not prohibit equitable principles from being appliedelsewhere unless the courts to which those applications are appealed prevent it, which wouldcertainly be inequitable.

Granted that the special master court is a quasi-judicial, administrative court created by the cityby authority of the state to handle local code violations, and that one does not file original

motions for equitable relief there. But special magistrates not to mention the officials of otheradministrative bodies, the majority of whom are lawyers, have discretion to consider equitableprinciples.

The intent of Chapter 30 of the Municipal Code creating the special master facility is topromote, protect and improve the health, safety and welfare of the citizens of the city and toprovide an equitable, expeditious, effective and inexpensive method of enforcing codes andordinances in force in the city where a pending or repeat violation exists or continues to exist.Indeed, instructions on violation notices used to invite owners to provide information at law andin equity.

In 2007, the Third District Court of Appeals in Castro v. Miami-Dade County Code Enforcement(967 So.2nd 230) held that it would be grossly unfair to deprive owners or protection afforded byequitable estoppel. In 2005, the Eleventh Circuit Court in Bennett D. Fultz Co. v. City of Miami(2005 WL 5302110 at *2) affirmed by the District Court of Appeals, held that there wasinsufficient evidence to uphold an enforcement boards conclusion that the equitable defense oflaches was insufficient. In 2006, the District Court of Appeals in Sarasota County v. NationalCity Bank (902 So. 2d 233) ruled that although the statute of limitations Chapter 95 of theStatutes of Florida may not apply to quasi-judicial administrative actions; however, the appellate


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court refused to rule out laches, equitable estoppel, or due process as delayed enforcementdefenses.

In any case, can we imagine a circuit court, handing an appeal from the special magistrate,holding that, Although Equitable Estoppel applies, it may not be applied outside of this

courtroom, therefore inequity should be done in this case, and the person deserving equityunfairly punished.

Now let us turn to the Eleventh Circuit Courts decision in this case, the appeal of Special MasterCase 2012-000623, styled City of Miami Beach v The Bernsteins, 12-341 AP. After consideringit, we shall have good cause to believe that we live in the State of Moronia.

According to the Urban Dictionary, Moronia is a state of mind in which one feels overwhelmedby the presence of irrationality, stupidity, and/or stuck in situations where you are beholden tothe moronic behavior of others. That mental state is also known as a topsy-turvy, or upside-down, confused state, such as a drunk might feel in an overturned car after a highway crash.

The Court ruled that, the Special Master is not a judicial officer of the State of Florida. TheSpecial Master proceeding is created by statute, and is not a court authorized to apply equityjurisdiction. Neither the Special Master nor the special master proceeding is legally permitted toinvoke a Court's equity jurisdiction, and as such, it would be improper to assert such authorityoutside of an original action brought before the Circuit Court. The Special Master exceeded hisauthority pursuant to Chapter 30 of the Miami Beach City Code, and clearly violated establishedlegal principles under Florida Law. The Special Master could not apply the Doctrine of EquitableEstoppel in this matter. The Special Master clearly departed from the essential requirements oflaw, and was not legally authorized to apply the equitable principle of estoppel in this quasi-judicial proceeding: See Monroe County v. Carter, 41 So.3d 954 (Fla. 3d DCA 2010).

But that is sheer nonsense. It sounds like the Court took its opinion on the subject from Smithsbrief, and did not bother to read the Carter case. Nowhere does the Florida Constitution andStatutes say that equitable principles may not be applied by the code enforcement boards oralternative special magistrates, created under Chapter 162 with a clearly stated equitable intent.

Most bizarre is the fact that the case the Court cites, Monroe County v. Carter, does not argue forany such prohibition but accepts the exercise of equity by a special magistrate as an indisputablematter of fact. The gist of the case is that there must be exceptional circumstances for the formalprinciples of equity to be applied; indeed, that all the elements or conditions must be present.

Sandra Carter was cited for renting out the ground floor apartment in her duplex withoutobtaining a building permit and certificate of usage for that purpose. She figured that since Code

Enforcement knew about it and had done nothing that the code would not be enforced, whereforeshe asserted equitable estoppel by way of the laches defense to the special magistrate.

Laches means to let go, to let slip. The doctrine of laches affords equitable relief to a defendantwhen the plaintiff is tardy and otherwise negligent in asserting the claim. So this Carter case issimilar to our Bernstein case.


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In Carter, the special magistrate denied equitable relief because, for one thing, Carter failed toprove that Code Enforcement had knowledge of the violation, and she should have made aninquiry to make sure no enforcement was intended. After all, she was a real estate professionalwho should have known better, that Code might eventually cite her.

The District Court of Appeal pointed out that the special magistrate had not adequatelyconsidered two other elements necessary for equity: " The magistrate did not reach two otherissues raised by the County, that the doctrine of laches could not apply where (1) "thenonconforming downstairs enclosure has never been lawfully permitted" or (2) "the offendingproperty use defeats [the County's] effort to protect the public."

The circuit court overturned the special magistrate. In its eleven-page amended opinion, notedthe District Court of Appeals, the circuit court determined that the magistrate should have ruledin favor of Ms. Carter on the laches defense as well as the defense of estoppel. The circuit courtstated that the "record shows that Monroe County was aware of the downstairs enclosure by1983, apparently levied taxes upon it, and then took absolutely no action whatsoever to enforceagainst the property."

And then the District Court of Appeals, after carefully considering all the elements of laches,quashed the circuit courts opinion, ruling that the circuit court failed to follow the law in itsapplication of equitable estoppel to the Countys notices of violations. In conclusion:Conclusion. The circuit court departed from the essential requirements of law by reweighing theevidence and substituting its judgment for that of the special magistrate; by concluding that theCounty's enforcement of code violations in this case is barred by the doctrines of laches andequitable estoppel; and by directing the special magistrate to dismiss the notices of violation.

So the Carter case of the Impermissible Ground Floor Apartment actually supports the equitablenotion that special masters can indeed apply principles of equity in proceedings before them.

But the Bernstein Case of Two Cars in the Driveway gets even stranger. Although the circuitcourt, on the city attorneys appeal, agreed with the city attorney that special masters may not dowhat they often do, make equitable decisions, it ruled de novo, taking up the case anew againstthe city because, it said, there was no evidence that there had been a violation in the first place!

By what right did the circuit court make such a ruling when the city attorney had not theopportunity to argue against it below? It reached into its grab bag and pulled out somethingcalled the Tipsy Coachman Doctrine, based on Retaliation, a 1774 poem by Oliver Goldsmith:

Here lies honest William, whose heart was a mint,While the owner ne'er knew half the good that was in't;

The pupil of impulse, it forced him along,His conduct still right, with his argument wrong;Still aiming at honour, yet fearing to roam,The coachman was tipsy, the chariot drove home;Would you ask for his merits, alas! he had none,What was good was spontaneous, his faults were his own.

Under the Tipsy Coachman Doctrine, or Drunk Driver Doctrine, a drunk judge may give theright result but for the wrong reasons. If the court can find some theory or principle of law in the


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record supporting the outcome, then let Due Process go to Dickens. Curiously, this circuit courtdid not notice the irony of its own statement, in its terse discussion of a courts standards for

review, that, A discussion of procedural due process here is unnecessary.

So City Attorney Jose Smith appealed a case where there was no evidence of a violation, at least

according to the all-wise circuit court, simply because the special master, also blinded to the factthat there was no evidence of a violation, bucked his wishes and tried to apply a formal principleof equity called Equitable Estoppel. He even did so based on research that the city attorneysoffice provided to him, research that gave him cause to think that the city should be stopped fromenforcing a law when its enforcement would be patently unfair due to exceptional circumstances.So the circuit court cites a case for the city attorney that is the reverse of his argument, and thenprovided an equitable solution, handing the city attorney the most devastating of pyrrhicvictories: a total loss to the city he represents.

Well, everyone should be excepted where there is no evidence that they violated the law they arecharged with violating. That certainly would be equitable.

Perhaps Smith may appeal even higher, on due process grounds, just to get even with Movahedi.But we doubt it since the Drunk Driver Doctrine, although it is may be judicial policy and proveshow irrational the judicial process really is, has been upheld by the Florida Supreme Court, andhe might get in a wreck on the way.

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.,..,."t p

CITY OF MIAMI BEACH,FLORIDA, Appellant,VS.

STEPHEN BERNSTEIN andNANCY BERNSTEIN,. A p p e l l ~ e ,

The m ~ t t e r came to be considered by this Court upon review of the proposed Mandateand Joint Motion for entry of a Mandate and/or -Opinion filed on May 20, 2013, Havingreviewed the Motion and the Mandate, this Court accepts and adopts the findings 6f theMandate, which shall be entered and filed with the Clerk of the Court, resolving the merits ofthis appeal.

It is so ordered this '12 of June, 2013., ~ ~ ~ " . , . ,~ . '

C ~ p i e s furnished:Aleksanqr Boksner, Asst. City Atty., Office ofthe City AttorneyStephen and Nancy Bernstein


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CITY OF MIAMI BpACH,FLORIDA, amunicipalcorporation.,

Appellant,VB.

.,,', ',.,

IN THE CIRCUIT COURT OF THE 11THJUDICIAL CIRCUIT IN AND FOR.MIAMI-DADE COUNTY, FLORIDAGENERAL JURISDICTION DIVISIONAppellate Court Case No.: 12-341 APSpecial Master Case No. JC12o.00623

STEPHEN BERNSTEIN andNANCY BERNSTEIN, individuals,Appellee.~ - - - - - - - - - - ~ /

If1IIrI!I

MANDATETHIS CAUSE comes before the Court, sitting in its appellate capacity, on a

Notice of Appeal, filed September 20, 2012. The City of Miami Beach (the"Citi') seeks r e v i e ~ of the Special Master Orders rendered on May 17, 2012 andSeptember 6, 2012. The City contends that the Special Master departed fromessential requirements of the law, and seeks reversal of the Order which applies theDoctrine ofEquitable Estoppel in the quasi-judicial code enforcement proceeding.

I. .Facts and BackgroundStephen Bernstein and Nancy Bernstein (the "Appellees") are individuals

residing at 6061 North Bay Road Miamj Beach, Florida 33140 (the "Property").The City issued a n ~ t i c e of violation to the Appellees for violating Section 130-61of the Miami Beach Code of Ordinances, as specifically identified within the


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({" ,, '.Appeal No.: 1 2 ~ 3 4 1 AP

City's Land Development Regulations (LDR's). The violation of Section 130-61was basedupon the Appellees alleged impermissibly parking two (2) vehicles uponthe Property's driveway.

Stephen Bernstein and Nancy Bernstein contested the alleged notice ofviolation. On April 12, 2012, an administrative hearing was held before theSpecial Master Babak Movahedi (the "Special Master") of the City of MiamiBeach. It is without dispute that the Special Master Proceeding is quasHudicial,and a special master's authority is limited by law.

At the hearing, the Appellees directly asserted i l l the Special Masterproceedings that the Doctrine of Equitable Estoppel should be controlling, therebyprohibiting-the ciiYftom enforcll1g-Section130:610 the M i a i n r B e ~ c h City C ~ o d e - - - 'against the Appellees or their Property. The Appellees argued that they reliedupon the representations of officials within the City which granted Appellees theauthority to park two (2) vehicles at the property, and that it would be improper(inequitable) to prohibit Appellees from parking their two vehicles' upon thedriveway of the Property. The Appellees further arg'ijed that the City issued apermit for the construction of the Property's driveway, which permit was issuedapproximately 10 years prior to instant violation, and that the Appelleesdetrimentally relied upon the issuance of that driveway pemrit.

Upon receiving such evidence, the Special Master solely relied UP01?-, and2


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,

. a"Appeal No.: 1 2 ~ 3 4 1 AP

focused his ruling, on the legal Doctrine of Equitable Estoppel in the codeenforcement proceedings against the Appellees. However, the Special Master isonly granted the authority set forth within Chapter 30 of the Miami Beach Code,which authority does not confer equity jurisdiction.

The City requested a rehearing of the Special Master's ruling issued onMay17, 2012. The City' asserted that the Special Master exceeded his authority, anddeparted from the essential requirements of the law by applying the Doctrine ofEquitable Estoppel. The rehearing was held on September 6, 2012 before theChief Special' Jy.I:aster, and was subsequently denied.

The City appealed the two (2) Orders based upon the failure to follow theessential requirements of law.

II. Standard! of ReviewCircuit court review of an administrative agency's decision is limited to

detennining (1) whether procedural due process has been accorded, (2) whetheressential requirements of the law have been observed, and (3) whether-the decision

, is sl,lpported by substantial competent evidence. City of Deerfield Beach v.Vaillant, 419 So. 2d 624, 626 (Fla. 1982); Haines City Comty. Dev. v. Heggs, 658So, 2d 523, 530 (Fla. 1995), A negative answer to any of these questions isgrOlmds for reversal. "Wei! v. City ofNorth Miami, 10 Fla. 1. Weeldy Supp. 775(Fla. 11 th Cir. (;1. 2003).

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Appeal No.: 1 2 ~ 3 4 1 AP

Ill. DiscussionA discussion of procedural due process here is u1lllecessmy. The City

p r o v i d e ~ the Appellees notice of the code enforcement hearing, and the SpecialMaster afforded the Appellees an opportunity to be heard. Citivest ConstructiouCom. v.City ofTampa, 662 So.2d 937 (Fla. 2d DCA 1995)([a] claim of denial ofprocedural due process must be founded on deprivation of notice or the fairopportunity to be heard:).

Turning to the second prong of our analysis, the Special.Master's ruling wassolely based upon the Doctrine of Equitable Estoppel. A "Court" may invoke itsequity jurisdiction against a governmental entity just as if it were an individual.HollyWood Beach Hotel Co. v. City ofHollywood, 329 So.2d 10, 15 (Fla.1976).The Doctrine ofEquitable Estoppel may be invoked against a governmental entitywhere (1) a propertY owner in good faith reliance (2) upon some act or omission ofthe government (3) has made such a substantial change in position or has i n ~ u r r e dsuch extensive obligations and expenses that'it would be highly inequitable andunjust to destroy the right he or she acquired. Id. at 15-16; Sun Cruz Casinos,, . . . , .L.L.C. 'V. City of Hollywood, 844 So.2d 681, 684 (Fla. 4th DCA 2003); EquityRes., Inc., v. County ofLean, 643 So.2d 1112, 1117 (Fla. 1st DCA 1994); See alsoCoral Springs S1. Sys., Inc. v. City of Sunrise, 371 FJd 1320, 1334 (11thCir.2004)(applying Florida law).

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, '(, n.)Appeal No.: 12-341 AP

The Doctrine of Equitable Estoppel, however, may only be applied against agovernmental. entity under exceptional circumstances. Momoe County v.Hemisphere EQ.uity Realty, Inc., 634 So.2d 745, 747 (Fla. 3d DCA 1994). Here,the Special Master is not a judicial officer of the State of Florida. The SpecialMaster proceeding is created by statute, and is not a "court" authorized to applyequity jurisdiction. Neither the Special Master nor the special master proceeding is

legally permitted to invoke a Court's equity jurisdiction, and as such, it would beimproper to assert such authority outside of an original action brought before theCircuit Court.. The ~ p e c i a l Master exceeded his authority pursuant to Chapter 30of the Miami Beach City Code, and clearly violated established legal p r i n c i p l ~ sunder Florida Law. The Special Master could not apply the Doctrine ofEquitableEstoppel in this matter.

The Special Master clearly departed from the essential requirements of law,and was not legally authorized to apply the equitable principle of estoppel in thisquasi-judicial proceeding. See Momoe County v. Carter, 41 So.3d 954 (Fla. 3dDCA 2010), reheariJ.?-g denied, (holding that equitable estoppel or laches would notapply where code enforcement issued a notice of violation years after the illegalcondition existed).

The determination that the Special Master violated the essentialrequirements of law does not end this Court's inquiry. Under the "Tipsy

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,.'(!, . (" .."':,Appeal No,; 12-341 AP

Coachman Doctrine," where the trial court "reaches the right result, but for thewrong reasons," an appellate court can aff11nl the decision only if "there is anytheory or principle of law in the record which would support the 'ruling."Robertson v. State, 829 So.2d at 901(Fla, 2002) (emphasis added) (quoting DadeCnIT, Sch. Ed. v. Radio Station WQBA, 731 So.2d 638, 644 (Fla.1999. The keyto this Doctrine is whether the record before the Special Master can support the

alternative principle of law, Here, the Special Master did not receive competentsubstantial evidence to support the validity of the violation issued to the Appellees.In further review of the record, a violation for Section 1 3 0 ~ 6 1 wo:uld arise onlyfrom the failure ofAppellees to comply with those Design Standards as pertainingto off-street parking space dimensions. The Appellees were not designing o f f ~street parking spapes at the Property, and the record fails to identify any evidencethat exists to support the validity of the violation issued to Appellees,

IV. C o ~ c I u s i o J t lBased on the forgoing reasons, the Special Master unequivocally departed

from ,the essential requirements of law by 'applying the Doctrine of EquitableEstoppel in the code enforcement proceedings. However, as we have concluded,no competent s,ubstantial evidence exists to support a violation against theAppellees for violating Section 1 3 0 ~ 6 1 of the Miami Beach Code.

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41 So.3d 954 (2010)

MONROE COUNTY, Petitioner,v.

Sandra L. CARTER, Respondent.

No. 3D10-326.

District Court of Appeal of Florida, Third District.

July 21, 2010.Rehearing Denied August 26, 2010.

955*955 Monroe County Attorney's Office, and Robert B. Shillinger, Key West, for

petitioner.

Lee Robert Rohe (Summerland Key), for respondent.

Before GERSTEN, SHEPHERD, and SALTER, JJ.

SALTER, J.

Monroe County petitions for a writ of certiorari regarding a circuit court order that quasheda building code enforcement 956*956 decision and directed dismissal of the administrativeenforcement case. We grant the petition and quash the circuit court's amended opinion ofJanuary 11, 2010.

In this case, as in the parties' prior visit to this Court,[1]

the underlying question is whether

the respondent, Sandra Carter, violated certain Monroe County Code provisions[2]pertaining to residential groundfloor enclosures. As before, this is a second-tier review"limited to whether the circuit court (1) afforded procedural due process, and (2) applied thecorrect law."Miami-Dade Countyv. Omnipoint Holdings, Inc., 863 So.2d 195, 199(Fla.2003). In 2006 and 2007, a Monroe County Code Enforcement inspector determinedthat Ms. Carterwas renting a finished groundfloor enclosure to a tenant. Her home had nocertificate of occupancy as a duplex, and there was no building permit on file for theconversion of the downstairs area into a habitable apartment.

After a public hearing before a special magistrate at which Ms. Carterappeared and wasrepresented by counsel, the magistrate entered findings of fact, conclusions of law, and an

order determining that Ms. Carterhad violated six provisions of the Monroe County Coderelating to the ground-floor enclosure. The magistrate found that Ms. Carter"failed to provethat Code Enforcement had prior knowledge or notice of the offending property use," andthat "absent inquiry, [Ms. Carter] should not have assumed that [Code Enforcement would]never take action to require removal of the offending use." The magistrate did not reach twoother issues raised by the County, that the doctrine of laches could not apply where (1) "thenonconforming downstairs enclosure has never been lawfully permitted" or (2) "theoffending property use defeats [the County's] effort to protect the public."

[3]
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Ms. Cartersought and obtained a circuit court order reversing the special magistrate'sorder on procedural grounds that we, as noted, quashed in 2009. Ms. Carterthen sought

review by the circuit court on the merits of the special magistrate's order. In its eleven-pageamended opinion, the circuit court determined that the magistrate should have ruled in favorof Ms. Carteron the laches defense as well as the defense of estoppel.

[4]The circuit court

stated that the "record shows that Monroe County was aware of the downstairs enclosure

by 1983, apparently levied taxes upon it, and then took absolutely no action whatsoever toenforce against the property." CitingGarcia v. Guerra, 738 So.2d 459 (Fla. 3d DCA 1999),the court determined that Ms. Carter's claim of laches was sufficiently proven in the

proceedings before the magistrate.

957*957 The circuit court citedCastro v. Miami-Dade CountyCode Enforcement, 967So.2d 230 (Fla. 3d DCA 2007),review dismissed, 975 So.2d 429 (Fla.2008), review denied,987 So.2d 79 (Fla.2008), for its determination that Ms. Carter's claim of equitable estoppelalso was sufficiently proven. The County's second petition to this Court followed.

Laches

The affirmative defense of laches required Ms. Carterto prove four elements: (1) conduct

on her part giving rise to the Code Enforcement notices of violation; (2) unreasonable delayby Code Enforcement despite knowledge of Ms. Carter's violations; (3) a lack of knowledgeby Ms. Carterthat Code Enforcement would proceed on the violations; and (4) injury orprejudice to Ms. Carterwhen the violations were prosecuted. SeeDean v. Dean, 665 So.2d244, 247 (Fla. 3d DCA 1995). In this case, the special magistrate found that CodeEnforcement did not have actual knowledge of Ms. Carter's violations until 2006. The trialcourt found that information in the records of the Monroe County Property Appraisershould have been imputed to the County Code Enforcement office.

[5]As a matter of law,

however, mere notice to one independent office or agency of government is not imputed to

another such office.State v. Smith, 697 So.2d 889, 891 (Fla. 4th DCA 1997).

The special magistrate also found that Ms. Carter's experience as a licensed real estate

agent in the Florida Keys belied her assertion of reasonable reliance on non-enforcement.The trial court should not have reweighed that credibility assessment and finding.Dusseauv. Metro. Dade County, 794 So.2d 1270, 1275 (Fla. 2001). The magistrate's findings were

based on competent substantial evidence and should not have been disturbed.

Estoppel

We also find that the circuit court failed to follow the law in its application of equitable

estoppel to the County's notices of violation.Castro, 967 So.2d 230,involved a residentialfamily room that extended nine feet beyond the setback line imposed by ordinance. Thebuilding department had approved permits for the original construction and for laterimprovements as well. More than twenty years after the owners purchased the home, thecode enforcement office issued a notice of violation.

This Court's decision in Castro observed at the outset that the doctrine of equitable estoppel"may only be applied against a governmental entity under exceptional circumstances."967
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So.2d at 233. In contrast to the facts of that case, here Ms. Carter's ground-floor enclosurenever received a permit or certificate of occupancy for the ground floor apartment.

Additionally, the setback violation at issue in Castro did not expose the owner (or tenant, inMs. Carter's case) to possible death, injury, or property damage, further distinguishing that"exceptional" case from Ms. Carter's case.

Conclus ion

The circuit court departed from the essential requirements of law by reweighing theevidence and substituting its judgment 958*958 for that of the special magistrate; byconcluding that the County's enforcement of code violations in this case is barred by thedoctrines of laches and equitable estoppel; and by directing the special magistrate todismiss the notices of violation.

[6]

Petition granted; amended opinion of January 11, 2010, quashed.

[1]Monroe CountyCode Enforcement v. Carter, 14 So.3d 1019 (Fla. 3d DCA 2009). In the prior case, we grantedcertiorari and quashed a circuit court order that dismissed the County's notice of code violations by the respondenton procedural grounds.

[2]Monroe County, Fla., Code 6-4 (unsafe buildings), 6-41(a) (requiring a certificate of occupancy), 9.5-111(1)(unpermitted improvements to a single family residence), 9.5-231 (unauthorized land use (duplex)), and 9.5-317(b)(1)d (prohibiting utilities, temperature control improvements, and habitation in a downstairs enclosure).

[3]Protection of the public from flooding, including the life-threatening storm surges created by a major hurricane, ispart of the original legislative intent expressed in the applicable ordinances. The focus on human safety is alsoapparent from the controlling national flood insurance floodplain statutes, regulations, and decisional law.

[4]The circuit judge also denied as moot the County's request for a three-judge appellate panel.

[5]A code enforcement witness "admitted under oath" that the property appraiser's card on the property reflected thedownstairs enclosure "without habitation" but existing as of 1983. There was no evidence that the property appraisalrecord had been reviewed by the code enforcement office at any point prior to the hearing. The Monroe Countyproperty appraiser is a state constitutional officer, while the code enforcement office reports to the Board ofCountyCommissioners.

[6]As an appellate court granting a petition for certiorari, the circuit court could only quash the special magistrate'sfindings, conclusions, and order. A direction to the administrative agency to dismiss the enforcement action exceedsthat authority. SeeClayCountyv. Kendale Land Dev., 969 So.2d 1177, 1181 (Fla. 1st DCA 2007).
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Page1of8

SHOWDOWN AT HIGH NOON

Miami Beach City Attorneys versus Special Masters

Unexpurgated and updated version of article featured by the SunPost WeeklyUpdated: 6 September 2012

By David Arthur Walters

There was a showdown at high noon on Wednesday August 22 between the City Attorneys andthe Special Masters. The feuding parties dueled before the legal oversight committee in the CityManagers meeting room. It was a steamy day, the only relief inside, besides the air conditioningthat 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 anddisposes of local code enforcement cases. The special magistrate system is an alternative tomunicipal code enforcement boards, relatively autonomous boards of citizens authorized by thestate legislature. It was believed that autonomous boards or tribunals would go easier on accusedcode violators provided that they promptly and faithfully comply, or the violation is not graveenough to warrant the amount of fine imposed, or the fine is too high compared to the equity inthe property at stake. In the event that special masters did not mitigate enough, City Attorney


19/25


Page2of8

Jose Smith drafted an ordinance approved by the commission that allows someone in the citymanagers 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 byspecial masters, the city managers 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 CityAttorney Jose Smiths proposal to fire Chief Special Master Abe Laeser and replace him withSpecial Master Enrique Zamora, who would then fire Special Masters Joe Kaplan and BabakMovahedi. A chief special master is appointed by the city on advice of the city attorney, and thechief hires the others. Mr. Laeser said that a subordinate special master job was secured for himbecause Mr. Zamora liked him and would keep him on as a subordinate. Mr. Zamora was not atthe meeting because he was away in Cuba handling estate cases, explained Mr. Smith, who alsohails 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 complaintabout 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 vigilantismagainst party house operators was contemplated by residents because of the delays. The presidentof a condominium association complained that Mr. Kaplan was forgetful due to his age, but shehad 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 formalinvestigation 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 prestigiousGeorge Washington University, and his JD and LLM degrees from Georgetown University. Hewas elected a neighborhood commissioner in D.C., where he was involved in Democratic politicsfor many years, and owned and operated a famous gay bar called the Mova Lounge. He movedto South Beach in 2007, and opened another Mova Lounge, on Michigan Avenue right offLincoln Road. Mayor Matti Herrera Bower appointed him to chair the Miami Beach LGBTBusiness Enhancement Committee in 2008, and he was applauded by the community for leadingthe citys first Gay Pride eventhe was dubbed the Pied Piper of Miami Beach Pride. He wasappointed special master on March 10, 2010, by Chief Special Master Abraham Laeser, who saidMr. Movahedi had the requisite knowledge, skills, and abilities for the job.

Mr. Movahedis high education was rounded out locally when his lounge was cited for a dozenviolations during an annual fire inspection. He protested that different inspectors had not citedhim for the same conditions on previous visits, complained of inconsistent inspection reports andmisinterpretations of law, and threatened to take the matter to court. The inspector tried toappease him, telling him that positive improvements had been made to the inspection processincluding better training, but he was not satisfied. Fire Marshall Sonia F. Machan interviewedhim and found him very agitated and frustrated, but respectful.


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To provide our coverage of the showdown between the city attorneys and special masters withbetter balance, we contacted Mr. Movahedis archrival, Alexandr Boksner, and asked him aboutthe legal pretext he had referred to during the meeting for his dispute. We also made a suggestionfor improving the system, and asked him for some biographical information since his bio was the

only one missing on the city attorneys web pages:

Alex, at the special master oversight meeting yesterday, you mentioned a case you had foundgiving a judicial opinion on the constitutional powers of the special master alternative to the codeenforcement board. Would you please email me a copy of the full text of that case? Mind youthat I do not access to a good legal research mechanism. I would really like to know if the specialmasters are real judges sitting in a real tribunal. For what it's worth, I noticed some time ago thatan information sheet handed out with a violation notice stated that defenses can be made at lawand 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 insome 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 carefullyif they were, itwas not evidenced in the file.

My take on the technical discussions at the meeting is that the city attorney office incollaboration with special masters and clerks should sit down with the statutes and ordinancesand documents and describe the correct process to follow in detail, with examples of course, andmake sure that everyone is crystal clear about the right way to do things technically speaking. Inother 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. Spaniardsbecame 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 AttorneyOffice's page.

Thanks!

Mr. Smith replied in his stead, stating that:

Mr. Boksner will not provide you with legal advice or discuss legal theories. As a former Stateprosecutor and Police Legal Advisor, his biography and other personal information is exemptfrom 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, wechecked with City Clerk Rafael Granado about Mr. Smiths refusal, only to find that publicrecords law only precludes information of the type that would never appear on any cityattorneys web page anyway. Since permitted biographical information was not forthcoming, weturned to the Internet, to discover that Mr. Boksner lived in Surfside, Florida, where the day afterthe legal oversight meeting, on August 23, proceeding at 10:00 AM, he was scheduled to preside


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as a special magistrate himself, for 10 cases pertaining to Town of Surfside Code OfOrdinances. A subsequent review of his outside employment reports filed with the City ofMiami Beach this year reveals that he anticipated four hearings each year as Surfside specialmaster, and that he is also employed by the City of Coral Gables, by and through the CoralGables Police Department, handling legal work from his home in respect to a half-dozen

forfeiture cases each year. On May 15 he stated that his outside employment would continueuntil further notice, would not conflict with his employment at the City of the Miami Beach norinterfere with his hours of employment there.

We also found that Mr. Boksner had applied for a job with Osceola County on May 5. Hispublished application listed Mr. Smith as a reference as well as Miami Beach CommissionerJonah Wolfson, whom he stated he had known since 2001. He graduated from the ToledoCollege of Law that year, after obtaining his AA degree from Ohios Cuyahoga CommunityCollege and his BA from University of Cincinnati. He obtained a license to practice from theFlorida Bar in 2001, and, according to his Linked In page, worked as assistant state attorney inMiami-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 withCharlotte County, leaving there in December 2008 at a monthly salary of $7,291, for a job aschief 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 applicationwith Osceola County shows his Miami Beach salary to be $9,167. His application also lists aTennessee 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 fromsame 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 in2006.

Now the attorneys and judges were ganged up at opposite ends of the conference table at thelegal oversight conference. The SunPosthad mentioned bad blood between the city attorneysoffice and Judge Movahedi. It was indeed evident that Mssrs. Movahedis and Boksners bloodwas at the boiling point.

Mr. Laeser maintained judicial decorum: he was quite reserved and reasonable, reining in Mr.Movahedi, who was as girded for battle as Mr. Boksner. Mr. Laeser, who also practices privatelyand is currently an adjunct professor of trial advocacy at the University of Miami, obtained hisBA in History from Christian Brothers College in 1969, his JD from the University of Miami in1973. He was senior trial counsel, assistant state attorney from 1973 to 2009, prosecuting capital

felonies, with emphasis on high profile cases, homicides of police officers, and multi-murderdefendants.

Mr. Kaplan was calm and remote except when he shouted liar a couple of timesthe lawyerson 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 pigthat had wandered onto Hatfield land, where the Hatfields laid claim to it. Of course the famous


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Hatfield and McCoy trial was really not about the pig, but was about the relative dignity andhonor 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 isremotely 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 ofLimitations, Discovery, Ordering Inspections, and Equitable Estoppel.

Someone mentioned that a special master had ruled that the city should not be able to takecurrent action on a violation that had occurred many years ago unless that violation put thepublic in danger.

Even worse, Judge Movahedi believed that due process should allow a defendant to discoverwhatever information the city might have that would help his case. But the law implementing thespecial master agency states that the Florida Rules of Civil Procedure governing discovery did

not apply to ityet the statute was silent on what sort of discovery could be ordered by thequasi-judicial agency. Assistant City Attorney Rhonda Montoya Hasan sympathized with thejudges wish for adequate due process, but the means to it remained a point of contention. Shesuggested making public records requests. Ms. Montoya Hasan, incidentally, has been practicinglaw with the city since 1997. She holds a BA degree from Duke University, and received her JDfrom the University of Miami in 1996.

Furthermore, Mr. Movahedi had dared to order an inspection of structural damage to see if itendangered the public, when he should have merely requested it because he had no statestatutory authority to order a building inspector to do anything at all. However, although thetranscript did have Mr. Movahedi ordering an inspection, his order was really a request, as

we can see from John Austins Lectures on Jurisprudence, which aptly drew the semanticaldifference between and order and a request long ago: A command is distinguished from othersignifications of desire, not by the style in which the desire is signified, but bv the power and thepurpose of the party commanding to inflict an evil or pain in case the desire be disregarded. Ifyou cannot or will not harm me in case I comply not with your wish, the expression of your wishis 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 bestopped from penalizing someone who relies on its word or conduct that there would be nopenalty 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 lawand equity was given by Blackstone: the law states that the last man on board a capsized vesselhad salvage rights, but if the man was last because he was asleep in his bunk, he should not havethose rights. There used to be separate equity courts, but now courts can consider equitableprinciples as well as the strict law. The citys Notice to Violators Late Complianceinstructions state that Legal or Equitable reasons may be presented in the Special Master court.


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Judge Movahedi had a case before him involving the purchase of property with theunderstanding that the city had allowed or would allow parking on the property, but the cityapparently 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 withsame, 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 andmust be appealed forthwith. The notion of equitable estoppel is JUDICIAL remedy, and not thepurview of a Special Master. There is either a violation or not. The Special Master exceeded hisauthority. Abe, Ive had enough of this nonsense!

To the best of our knowledge at press time, the judges estoppel ruling was not appealed despitethe continued insistence that it was illegal.

As far as the city attorney and his staff are concerned, code enforcement tribunals are not even acourt 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 circuitcourt. Again, Mr., Smith insists that special masters are neither judges nor magistrates. Thespecial masters doubtless disagree despite their quasi-judicial status, and feel their tribunalshould be independent of the executive and legislature to a certain extent. In response to furtherinquiry, Mr. Smith acknowledged that the special master ordinance can be repealed withoutreferendum and the city be rid of the special master agency forever.

We recall President Jeffersons effort to smother the fledgling Supreme Court in its crib,conspiring to impeach judges for political reasons, although there was admittedly afoot mentalinfirmities, judicial errors, and moral turpitude, including a great deal of liquor to boot. Of coursean 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 Commissionshould not consider replacing the city attorney and his staff instead of the special masters. Itappears 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 letterfrom an attorney, Martin Wasserman, lauding him as an honorable, excellent attorney andleader of our legal department, with a keen sense of direction that is in the best interests of thecity.And, he said that Mr. Zamora, the city attorneys choice for chief special master, is anexcellent attorney, very highly regarded by the Probate Judges, and would be a credit to theCity.

Mr. Smith included another letter from an attorney, one Raul Morales, who said that he hadattended his first hearing before Mr. Movahedi, where he discovered that he lackedprofessionalism, 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. Asubsequent investigation that included listening to the recording of the hearing found that thereis no discernible evidence of any change of vocal tone, argumentative speech, or inflectionsreflecting any improper disagreement. In fact there was no indication of bad feelings betweenany persons. Mr. Morales admitted that no bad language or insulting words were used. In


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fine, Mr. Morales, who regretted that his complaint had resulted in a formal investigation, hadregretfully misjudged the judges mannerisms, his rapid speech, his way of leaning forward, andthe 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 thatBabak Movahedi was misperceived because of his energetic temperament, partly due to hisphysiognomy, as well as his cultural background, which includes hatred for grand ayatollahlawyers, and compare his temper to the stereotypically fiery Latin temper, and the stereotypicalaloofness of Jewish intellectuals. We certainly do not wish to aggravate the bad blood andgroundless hatred of the human race itself here with an elaboration of the issues includingoriginal sin and the conduct of Abel and Cain.

Ms. Montoya-Hasan said the situation had become so troubling that certain cases were beingreassigned to other special masters. Of course, selecting compatible judges is nothing new to thelegal profession.

Mr. Movahedi was most incensed by a statement that Mr. Boksner had made in open court, to theeffect that he had no right to interpret Florida law because he did not even have a license topractice in this state. Mr. Boksner replied that he was simply making the objection as a groundfor 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. Boksners comment

about licensing was out of line because a special master does not have to have a Florida licenseor any license at all for that matter. Commissioner Tobin is a former prosecutor and a recentgraduate from the police academy. He observed that Mr. Boksner was an aggressive prosecutormaking his case, perhaps too aggressively. Anyway, he said, he did not see why he should haveto 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 wereabout a small number of cases, viewed the matter as a personality clash. She was tired of thelawyerlike 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 outbetween Mr. Smith and Mr. Movahedi.

You are not a circuit judge, Mr. Smith said. You cannot legislate! You must abide by thelaw.


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That is what I did! You, sir, have an opinion on what the law is, but that is not necessarilycorrect. 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.

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the topsy turvy case

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