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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, 2013
By David Arthur Walters
THE MIAMI MIRROR
Miami BeachCity Attorney J ose Smith received a devastating pyrrhic victory on J une 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 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 him
with 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 in
Britain 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.

Movahedis equitable ruling rankled Smith, whose office serves as prosecutor in code
enforcement cases. Smith identifies himself as the city itself, and sometimes he seems to
conceive of himself as a sovereign with unlimited discretion, infallible judgement, and absolute
impunity, an attitude long condoned by the city commission. He stated in an irate J une 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 J UDICIAL remedy, and not the purview of a
Special 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 was
concerned. He had prompted an investigation into the magistrates courtroom demeanor because
the administrative magistrate had refused to go along with his offices wheeling and dealing with
violators before rendering findings of fact and conclusions of law.
Movahedi insisted that any backroom deals be made after his decisions were made. Residents
were blaming the special masters for preferential treatment or selective enforcement when it was
really the city attorney who was making many of the deals, ostensibly on behalf of the city
manager, whose office may reduce or write off fines imposed up to $100,000, pursuant to an
ordinance drafted by Smith. Sums over that amount may be reduced or written off by the city
commission. 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 his
sovereign discretion.
Smith, displeased with what he perceived as Movahedis blatant insubordination, tried to get
Chief Special Master Laeser fired and replaced by Special Master Enrique Zamora, who was
then 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 the
revolutionary advent of Fidel Castro. For example, he has represented the interests of Cubans
whose 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 was
moonlighting as a special master himself for the Town of Surfside at the time, besides working
for 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 applying
a 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 practice
in 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 J D and LLM degrees
from Georgetown University. He is also a leading gay rights activist.
Ethnocentrism if not homophobia was apparently at play in Smiths rancorous campaign against
Movahedi. Smith is known for his intemperate and often defamatory remarks about people who
criticize his behavior or pose challenging questions. City Manager J orge Gonzales, who was
forced 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 in
their virtual domination of the city administration.
The city commission was usually dominated by J ews after their successful struggle against
discrimination in Miami Beach, although at one time it had an Hispanic majority, when Smith, a
J ewish 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 derogatory
terms, that he received his lucrative city attorney job in 2006 in exchange for not running against
Mayor 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 J ewish and Hispanic would have a bearing on a candidates electability, and calls
anyone 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 Movahedis insubordination,
somehow managed to have obtained a letter from a private attorney, one Raul Morales, for the
investigation into Movahedis courtroom demeanor. That letter bore the badges of vitriol
characteristic of Smith himself. Another letter from another attorney praising Smith made its way
into the file.
Morales said he had attended his first hearing before Movahedi, where he discovered that
Movahedi 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.
However, the 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 admitted that no bad language or insulting words were
used. 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 of
leaning 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 allow
municipalities 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 J udge should be, he said in his J uly 16, 2012, letter to Mayor Matti
Herrera Bower. If you believe that the attorney representing the City should have the power to
control the hiring and firing until he gets the J udge he wants; perhaps the attorney for the person
charged should also have that power. Does that make any sense to anyone? How does that create
the independence we search for? Or is it tantamount to fixing the deck? How can the charged
party ever believe that they could get a fair hearing when they know that the J udge may be fired
for ruling in their favor? This is precisely what the hidden issue is public perception of
fairness.
Clearly, the issue over whether or not a special master has the authority to apply a formal
equitable principle was a pretext for the outraged city attorneys campaign to get rid of
Movahedi for perceived insubordination.
All law is ideally derived from equity or fairness, but Smith insisted that it should not be applied
in any formal sense by the special master court because it is not a court like the constitutional
courts, of which the circuit court has exclusive original jurisdiction over formal cases of equity
or forms of natural justice as distinguished from cases involving prescribed law. But that is a rule
for constitutional courts, and justice does not prohibit equitable principles from being applied
elsewhere unless the courts to which those applications are appealed prevent it, which would
certainly be inequitable.

Granted that the special master court is a quasi-judicial, administrative court created by the city
by 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 other
administrative bodies, the majority of whom are lawyers, have discretion to consider equitable
principles.

The intent of Chapter 30 of the Municipal Code creating the special master facility is to
promote, protect and improve the health, safety and welfare of the citizens of the city and to
provide an equitable, expeditious, effective and inexpensive method of enforcing codes and
ordinances 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 and
in equity.

In 2007, the Third District Court of Appeals in Castro v. Miami-Dade County Code Enforcement
(967 So.2
nd
230) held that it would be grossly unfair to deprive owners or protection afforded by
equitable 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 was
insufficient evidence to uphold an enforcement boards conclusion that the equitable defense of
laches was insufficient. In 2006, the District Court of Appeals in Sarasota County v. National
City Bank (902 So. 2d 233) ruled that although the statute of limitations Chapter 95 of the
Statutes 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 enforcement
defenses.

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 equity
unfairly punished.

Now let us turn to the Eleventh Circuit Courts decision in this case, the appeal of Special Master
Case 2012-000623, styled City of Miami Beach v The Bernsteins, 12-341 AP. After considering
it, 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 overwhelmed
by the presence of irrationality, stupidity, and/or stuck in situations where you are beholden to
the 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. The
Special Master proceeding is created by statute, and is not a court authorized to apply equity
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 be improper to assert such authority
outside of an original action brought before the Circuit Court. The Special Master exceeded his
authority pursuant to Chapter 30 of the Miami Beach City Code, and clearly violated established
legal principles under Florida Law. The Special Master could not apply the Doctrine of Equitable
Estoppel 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 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 Smiths
brief, and did not bother to read the Carter case. Nowhere does the Florida Constitution and
Statutes say that equitable principles may not be applied by the code enforcement boards or
alternative 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 for
any such prohibition but accepts the exercise of equity by a special magistrate as an indisputable
matter of fact. The gist of the case is that there must be exceptional circumstances for the formal
principles 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 without
obtaining 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, wherefore
she 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 defendant
when the plaintiff is tardy and otherwise negligent in asserting the claim. So this Carter case is
similar to our Bernstein case.
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In Carter, the special magistrate denied equitable relief because, for one thing, Carter failed to
prove that Code Enforcement had knowledge of the violation, and she should have made an
inquiry to make sure no enforcement was intended. After all, she was a real estate professional
who should have known better, that Code might eventually cite her.
The District Court of Appeal pointed out that the special magistrate had not adequately
considered two other elements necessary for equity: " The magistrate did not reach two other
issues raised by the County, that the doctrine of laches could not apply where (1) "the
nonconforming downstairs enclosure has never been lawfully permitted" or (2) "the offending
property use defeats [the County's] effort to protect the public."
The circuit court overturned the special magistrate. In its eleven-page amended opinion, noted
the District Court of Appeals, the circuit court determined that the magistrate should have ruled
in favor of Ms. Carter on the laches defense as well as the defense of estoppel. 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 to enforce
against 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 its
application of equitable estoppel to the Countys notices of violations. In conclusion:
Conclusion. The circuit court departed from the essential requirements of law by reweighing the
evidence and substituting its judgment for that of the special magistrate; by concluding that the
County's enforcement of code violations in this case is barred by the doctrines of laches and
equitable 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 equitable
notion 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 circuit
court, on the city attorneys appeal, agreed with the city attorney that special masters may not do
what they often do, make equitable decisions, it ruled de novo, taking up the case anew against
the 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 the
opportunity to argue against it below? It reached into its grab bag and pulled out something
called 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 the
right 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 court
did 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 J ose 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 fact
that there was no evidence of a violation, bucked his wishes and tried to apply a formal principle
of equity called Equitable Estoppel. He even did so based on research that the city attorneys
office provided to him, research that gave him cause to think that the city should be stopped from
enforcing 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 then
provided an equitable solution, handing the city attorney the most devastating of pyrrhic
victories: a total loss to the city he represents.
Well, everyone should be excepted where there is no evidence that they violated the law they are
charged 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 proves
how irrational the judicial process really is, has been upheld by the Florida Supreme Court, and
he might get in a wreck on the way.
##
..,..,."
t p
CITY OF MIAMI BEACH,
FLORIDA,
Appellant,
VS.
STEPHEN BERNSTEIN and
NANCY BERNSTEIN,
.
The came to be considered by this Court upon review of the proposed Mandate
and Joint Motion for entry of a Mandate and/or -Opinion filed on May 20, 2013, Having
reviewed the Motion and the Mandate, this Court accepts and adopts the findings 6f the
Mandate, which shall be entered and filed with the Clerk of the Court, resolving the merits of
this appeal.
It is so ordered this '12 of June, 2013.

. '
furnished:
Aleksanqr Boksner, Asst. City Atty., Office ofthe City Attorney
Stephen and Nancy Bernstein
CITY OF MIAMI BpACH,
FLORIDA, a municipal
corporation.,
Appellant,
VB.
.,,'
, '.
,.,
IN THE CIRCUIT COURT OF THE 11TH
JUDICIAL CIRCUIT IN AND FOR.
MIAMI-DADE COUNTY, FLORIDA
GENERAL JURISDICTIONDIVISION
Appellate Court Case No.: 12-341 AP
Special Master Case No. JC12o.00623
STEPHEN BERNSTEIN and
NANCYBERNSTEIN, individuals,
Appellee.

I
f
1
I
I
r

I
!
I
!
I
MANDATE
THIS 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 of the Special Master Orders rendered on May 17, 2012 and
September 6, 2012. The City contends that the Special Master departed from
essential requirements of the law, and seeks reversal of the Order which applies the
Doctrine ofEquitable Estoppel in the quasi-judicial code enforcement proceeding.
I. .Facts and Background
Stephen Bernstein and Nancy Bernstein (the "Appellees") are individuals
residing at 6061 North Bay Road Miamj Beach, Florida 33140 (the "Property").
The City issued a of violation to the Appellees for violating Section 130-61
of the Miami Beach Code of Ordinances, as specifically identified within the
({" ,
, '.
Appeal No.: AP
City's Land Development Regulations (LDR's). The violation of Section 130-61
was based upon the Appellees alleged impermissibly parking two (2) vehicles upon
the Property's driveway.
Stephen Bernstein and Nancy Bernstein contested the alleged notice of
violation. On April 12, 2012, an administrative hearing was held before the
Special Master Babak Movahedi (the "Special Master") of the City of Miami
Beach. 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 ill the Special Master
proceedings that the Doctrine of Equitable Estoppel should be controlling, thereby
prohibiting-the ciiYftom enforcll1g-Section130:610the City
against the Appellees or their Property. The Appellees argued that they relied
upon the representations of officials within the City which granted Appellees the
authority to park two (2) vehicles at the property, and that it would be improper
(inequitable) to prohibit Appellees from parking their two vehicles' upon the
driveway of the Property. The Appellees further arg'ijed that the City issued a
permit for the construction of the Property's driveway, which permit was issued
approximately 10 years prior to instant violation, and that the Appellees
detrimentally relied upon the issuance ofthat driveway pemrit.
Upon receiving such evidence, the Special Master solely relied UP01?-, and
2
,
. , ~ a"
Appeal No.: 1 2 ~ 3 4 1 AP
focused his ruling, on the legal Doctrine of Equitable Estoppel in the code
enforcement proceedings against the Appellees. However, the Special Master is
only 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 on May
17, 2012. The City' asserted that the Special Master exceeded his authority, and
departed from the essential requirements of the law by applying the Doctrine of
Equitable Estoppel. The rehearing was held on September 6, 2012 before the
Chief Special' Jy.I:aster, and was subsequently denied.
The City appealed the two (2) Orders based upon the failure to follow the
essential requirements of law.
II. Standard! of Review
Circuit court review of an administrative agency's decision is limited to
detennining (1) whether procedural due process has been accorded, (2) whether
essential 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, 658
So, 2d 523, 530 (Fla. 1995), A negative answer to any of these questions is
grOlmds for reversal. "Wei! v. City of North Miami, 10 Fla. 1. Weeldy Supp. 775
(Fla. 11
th
Cir. (;1. 2003).
3
Appeal No.: AP
Ill. Discussion
A discussion of procedural due process here is u1lllecessmy. The City
the Appellees notice of the code enforcement hearing, and the Special
Master afforded the Appellees an opportunity to be heard. Citivest Constructiou
Com. v.City of Tampa, 662 So.2d 937 (Fla. 2d DCA 1995)([a] claim of denial of
procedural due process must be founded on deprivation of notice or the fair
opportunity to be heard:).
Turning to the second prong of our analysis, the Special.Master's ruling was
solely based upon the Doctrine of Equitable Estoppel. A "Court" may invoke its
equity jurisdiction against a governmental entity just as if it were an individual.
HollyWood Beach Hotel Co. v. City of Hollywood, 329 So.2d 10, 15 (Fla.1976).
The Doctrine of Equitable Estoppel may be invoked against a governmental entity
where (1) a propertY owner in good faith reliance (2) upon some act or omission of
the government (3) has made such a substantial change in position or has
such extensive obligations and expenses that'it would be highly inequitable and
unjust 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); Equity
Res., Inc., v. County ofLean, 643 So.2d 1112, 1117 (Fla. 1st DCA 1994); See also
Coral Springs S1. Sys., Inc. v. City of Sunrise, 371 FJd 1320, 1334 (11th
Cir.2004)(applying Florida law).
4

, '(, n.)
Appeal No.: 12-341 AP
The Doctrine of Equitable Estoppel, however, may only be applied against a
governmental. 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 Special
Master proceeding is created by statute, and is not a "court" authorized to apply
equity 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 be
improper to assert such authority outside of an original action brought before the
Circuit Court.. The Master exceeded his authority pursuant to Chapter 30
of the Miami Beach City Code, and clearly violated established legal
under Florida Law. The Special Master could not apply the Doctrine of Equitable
Estoppel 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 this
quasi-judicial proceeding. See Momoe County v. Carter, 41 So.3d 954 (Fla. 3d
DCA2010), reheariJ.?-g denied, (holding that equitable estoppel or laches would not
apply where code enforcement issued a notice of violation years after the illegal
condition existed).
The determination that the Special Master violated the essential
requirements of law does not end this Court's inquiry. Under the "Tipsy
5
,.'
(!
,.
(
'" ..
"
':',
Appeal No,; 12-341 AP
Coachman Doctrine," where the trial court "reaches the right result, but for the
wrong reasons," an appellate court can aff11nl the decision only if "there is any
theory 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 Dade
CnIT, Sch. Ed. v. Radio Station WQBA, 731 So.2d 638, 644 (Fla.1999. The key
to this Doctrine is whether the record before the Special Master can support the
alternative principle of law, Here, the Special Master did not receive competent
substantial evidence to support the validity ofthe violation issued to the Appellees.
In further review of the record, a violation for Section wo:uld arise only
from the failure of Appellees to comply with those Design Standards as pertaining
to off-street parking space dimensions. The Appellees were not designing
street parking spapes at the Property, and the record fails to identify any evidence
that exists to support the validity of the violation issued to Appellees,
IV.
Based on the forgoing reasons, the Special Master unequivocally departed
from ,the essential requirements of law by 'applying the Doctrine of Equitable
Estoppel in the code enforcement proceedings. However, as we have concluded,
no competent s,ubstantial evidence exists to support a violation against the
Appellees for violating Section of the Miami Beach Code.
6
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 quashed
a building code enforcement 956*956 decision and directed dismissal of the administrative
enforcement case. We grant the petition and quash the circuit court's amended opinion of
January 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 the
correct law." Miami-Dade County v. Omnipoint Holdings, Inc., 863 So.2d 195, 199
(Fla.2003). In 2006 and 2007, a Monroe County Code Enforcement inspector determined
that Ms. Carter was renting a finished groundfloor enclosure to a tenant. Her home had no
certificate of occupancy as a duplex, and there was no building permit on file for the
conversion of the downstairs area into a habitable apartment.
After a public hearing before a special magistrate at which Ms. Carter appeared and was
represented by counsel, the magistrate entered findings of fact, conclusions of law, and an
order determining that Ms. Carter had violated six provisions of the Monroe County Code
relating to the ground-floor enclosure. The magistrate found that Ms. Carter "failed to prove
that Code Enforcement had prior knowledge or notice of the offending property use," and
that "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 two
other issues raised by the County, that the doctrine of laches could not apply where (1) "the
nonconforming downstairs enclosure has never been lawfully permitted" or (2) "the
offending property use defeats [the County's] effort to protect the public."
[3]

Ms. Carter sought and obtained a circuit court order reversing the special magistrate's
order on procedural grounds that we, as noted, quashed in 2009. Ms. Carter then sought
review by the circuit court on the merits of the special magistrate's order. In its eleven-page
amended opinion, the circuit court determined that the magistrate should have ruled in favor
of Ms. Carter on 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 to
enforce against the property." Citing Garcia 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 cited Castro v. Miami-Dade County Code Enforcement, 967
So.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 estoppel
also was sufficiently proven. The County's second petition to this Court followed.
Laches
The affirmative defense of laches required Ms. Carter to prove four elements: (1) conduct
on her part giving rise to the Code Enforcement notices of violation; (2) unreasonable delay
by Code Enforcement despite knowledge of Ms. Carter's violations; (3) a lack of knowledge
by Ms. Carter that Code Enforcement would proceed on the violations; and (4) injury or
prejudice to Ms. Carter when the violations were prosecuted. See Dean v. Dean, 665 So.2d
244, 247 (Fla. 3d DCA 1995). In this case, the special magistrate found that Code
Enforcement did not have actual knowledge of Ms. Carter's violations until 2006. The trial
court found that information in the records of the Monroe County Property Appraiser
should 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. Dusseau
v. 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 residential
family room that extended nine feet beyond the setback line imposed by ordinance. The
building department had approved permits for the original construction and for later
improvements as well. More than twenty years after the owners purchased the home, the
code 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
So.2d at 233. In contrast to the facts of that case, here Ms. Carter's ground-floor enclosure
never 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, in
Ms. Carter's case) to possible death, injury, or property damage, further distinguishing that
"exceptional" case from Ms. Carter's case.
Conclusion
The circuit court departed from the essential requirements of law by reweighing the
evidence and substituting its judgment 958*958 for that of the special magistrate; by
concluding that the County's enforcement of code violations in this case is barred by the
doctrines of laches and equitable estoppel; and by directing the special magistrate to
dismiss the notices of violation.
[6]

Petition granted; amended opinion of January 11, 2010, quashed.
[1]Monroe County Code Enforcement v. Carter, 14 So.3d 1019 (Fla. 3d DCA 2009). In the prior case, we granted
certiorari and quashed a circuit court order that dismissed the County's notice of code violations by the respondent
on 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, is
part of the original legislative intent expressed in the applicable ordinances. The focus on human safety is also
apparent 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 the
downstairs enclosure "without habitation" but existing as of 1983. There was no evidence that the property appraisal
record had been reviewed by the code enforcement office at any point prior to the hearing. The Monroe County
property appraiser is a state constitutional officer, while the code enforcement office reports to the Board of County
Commissioners.
[6] As an appellate court granting a petition for certiorari, the circuit court could only quash the special magistrate's
findings, conclusions, and order. A direction to the administrative agency to dismiss the enforcement action exceeds
that authority. See Clay County v. Kendale Land Dev., 969 So.2d 1177, 1181 (Fla. 1st DCA 2007).

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SHOWDOWN AT HIGH NOON

Miami Beach City Attorneys versus Special Masters

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

By David Arthur Walters

There was a 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
Managers 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
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J ose Smith drafted an ordinance approved by the commission that allows someone in the city
managers 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 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 City
Attorney J ose Smiths proposal to fire Chief Special Master Abe Laeser and replace him with
Special Master Enrique Zamora, who would then fire Special Masters J oe 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 J D 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 citys first Gay Pride eventhe 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. Movahedis 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.
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To provide our coverage of the showdown between the city attorneys and special masters with
better balance, we contacted Mr. Movahedis 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 attorneys 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 carefullyif they were, it
was not evidenced in the file.

My take on the technical discussions at the meeting is that the city attorney office in
collaboration with special masters and clerks should sit down with the statutes and ordinances
and documents and describe the correct process to follow in detail, with examples of course, and
make sure that everyone is crystal clear about the right way to do things technically speaking. In
other words, rewrite the manual to accord with the law.

I personally do not think anyone has to be fired to resolve the human nature issue. Spaniards
became extraordinarily courteous to one another after their Civil War.

By the way, may I also have a copy of your biography? I do not see one on the City Attorney
Office's page.

Thanks!

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. Smiths refusal, only to find that public
records law only precludes information of the type that would never appear on any city
attorneys 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, 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 Of

Ordinances. A subsequent review of his outside employment reports filed with the City of
Miami Beach this year reveals that he anticipated four hearings each year as Surfside special
master, and that he is also employed by the City of Coral Gables, by and through the Coral
Gables 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 continue
until further notice, would not conflict with his employment at the City of the Miami Beach nor
interfere with his hours of employment there.

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
J onah 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 Ohios 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 J D 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 attorneys
office and J udge Movahedi. It was indeed evident that Mssrs. Movahedis and Boksners blood
was 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 privately
and is currently an adjunct professor of trial advocacy at the University of Miami, obtained his
BA in History from Christian Brothers College in 1969, his J D from the University of Miami in
1973. 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-murder
defendants.

Mr. Kaplan was calm and remote except when he shouted liar a couple of timesthe 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
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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, J udge 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 ityet 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
judges 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 J D
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 J ohn Austins Lectures on Jurisprudence, which aptly 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 citys Notice to Violators Late Compliance
instructions state that Legal or Equitable reasons may be presented in the Special Master court.

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J udge 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.
J udge 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 J une 12 email that This ruling is erroneous and
must be appealed forthwith. The notion of equitable estoppel is J UDICIAL remedy, and not the
purview of a Special Master. There is either a violation or not. The Special Master exceeded his
authority. Abe, Ive had enough of this nonsense!

To the best of our knowledge at press time, the judges 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 J effersons 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 attorneys choice for chief special master, is an
excellent attorney, very highly regarded by the Probate J udges, 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
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fine, Mr. Morales, who regretted that his complaint had resulted in a formal investigation, had
regretfully misjudged the judges 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 J ewish 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. Boksners 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.

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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.

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