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The Topsy Turvy Case

The Topsy Turvy Case

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Published by davidwalters
Miami Beach City Attorney Jose Smith suffers a devastating pyrrhic victory in his appeal of the Case of Two Cars in the Driveway, The State of Moronia rules the day,
Miami Beach City Attorney Jose Smith suffers a devastating pyrrhic victory in his appeal of the Case of Two Cars in the Driveway, The State of Moronia rules the day,

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Published by: davidwalters on Aug 22, 2013
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09/27/2014

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Drawing by Darwin Leon
 THE TOPSY TURVY CASE
The Ire of City Attorney Jose Smith over Two Cars in a Miami Beach Driveway
August 22, 2013By David Arthur WaltersTHE MIAMI MIRROR Miami Beach—City 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 Movahedi’s decision in favor of Stephen and Nancy Bernstein.The Bernsteins purchased property with the understanding that the city had allowed or would allow them to park two cars in the driveway, but the city did an about face after the property was purchased, 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 a principle 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. Our courts 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. For example, 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 formulated requiring the return of his property, he brings his action in a court of equity so that the scales of  justice may be balanced with an equitable or fair solution. Blackstone gives an example of equity: 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.Movahedi’s 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, I’ve 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 magistrate’s courtroom demeanor becausethe administrative magistrate had refused to go along with his office’s 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 for the writeoffs of fines as well as the mitigations or fine reductions of the special masters“moronic,” 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 Movahedi’s 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 senior assistant, 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 Smith’s “attack dog” in his capacity as Smith’s 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 to practice 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. Movahedi’s credentials areactually superior to Boksner’s. 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 obtained his 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 Smith’s 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 and lack 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 and are 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 listed  by the city at $220,566, and retirement benefits are more than ample. Smith said he doubted that being both Jewish and Hispanic would have a bearing on a candidate’s electability, and callsanyone who mentions the historical ethnic struggle for power in Miami Beach a “racist,” and apparently believes that the open discussion of the ethnic issue is “reprehensible.”However that may be, Smith, incensed by what he felt was Movahedi’s insubordination,somehow managed to have obtained a letter from a private attorney, one Raul Morales, for theinvestigation into Movahedi’s 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 bad feelings 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 judge’s mannerisms, his rapid speech, his way of leaning forward, and the like.

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