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LOCAL  BUSINESSMAN  ACCUSES  CITY  ATTORNEY  OF  FELONIOUS  AND  UNETHICAL 


CONDUCT AT SUTNICK CITIZEN’S FORUM 
 
February 14, 2018  
 
City of Miami Beach businessman Rod Eisenberg spoke to the City of Miami Beach 
Commission during Sutnick Citizen’s Forum this morning at 8:30 AM following the 
rabbi’s prayer to the Sovereign of the Universe and Commissioner John Aleman’s 
warning to refrain from complaints during Lent.  
 
The  text  of  Mr.  Eisenberg’s  presentation  is  below,  in  which  he  asked  not  to  be 
treated  as  an  “Enemy  of  the  State”  for  bringing  his  complaint  of  official 
harassment to the attention of the Commission.  
 
The speaker following Mr. Eisenberg also asked not to be considered an “Enemy 
of  the  State”  for  presenting  a  complaint  including  video  evidence  against  the 
Miami  Beach  Police  Department  that  he  was  assaulted  and  battered  while 
bicycling  by  a  female  driver  of  an  automobile  cursing  him  with  homophobic 
speech. He said the MBPD cancelled the response to his 911 call after the woman 
called her boyfriend, and then dismissed his complaint as unfounded although he 
had a witness to the incident. 
 
PRESS RELEASE 
 
February 13, 2018 
 
Former lodging owner Rod Eisenberg, addresses City of Miami Beach Commission 
tomorrow  and  alleges  “subornation  of  perjury”,  a  federal  felony,  has  been 
committed by one of its City attorneys in a case that involved short‐term rentals.  
The City’s legal team fraudulently changed material facts in the case, in palpable 
collusion with plaintiff’s own lawyers, which led a federal judge to issue sanctions 
against Mr. Eisenberg, which resulted in the payment of $600,000 to the City.  As 
a result of this new evidence, the City should return the pilfered funds and hire an 
Inspector General to investigate these charges. 
 
Rod Eisenberg 
Email: info@sadigocourt.com 
 
 
SPEECH TO CITY OF MIAMI BEACH COMMISSION 
 
To the Mayor, Commission and most importantly, the dear Citizens of Miami 
Beach: 
 
In response to your rebuke of my allegations of attorney wrongdoing, I contend 
all of those court victories your legal department relies on were the result of your 
attorneys  repeatedly  providing,  with  impunity,  a  multitude  of  judges  with  false 
statements of law and fact, in blatant violation of the Lawyer's Rules of Conduct. 
 
This is especially disheartening due to the fact when the government walks into a 
courtroom it is given the presumption of correctness by the judge. However, with 
that presumption comes a solemn responsibility to be honest, ethical and truthful 
to the court. In my case, your legal department has been none of these. 
As I do not have time to discuss all of the attorney malfeasance at this 3 minute 
gathering, some of it centered around: 
 
1.  A  tacit  agreement  between  the  opposing  counsels  to  allow  a  city  attorney  to 
engage  in  subornation  of  perjury,  a  Class‐E  federal  felony,  of  a  former  code 
enforcement  officer,  who  was  told  to  state  during  a  deposition  that  he  was  not 
briefly present (when he actually was) during an Art Basel shutdown of my former 
establishment due to operating unsafely without sprinklers and a hotel license. 
 
There was even a big hearing on it where a federal magistrate was interested in 
whether  the  code  enforcement  officer  solicited  a  bribe  from  the  plaintiff  in  the 
case. That explains why the City sought to erase Mr. Alberto's brief presence that 
fateful  night.  Subsequently,  this  was  one  of  the  material  points  in  the  judge's 
sanction order. I enclose Mr. Alberto's polygraph and Sworn Affidavit. 
 
2. Another material allegation in the case related to a fire marshal corresponding 
with  my  former  lender  at  the  time,  wrongfully  telling  them  I  am  operating  an 
"illegal  hotel"  due  to  a  lack  of  a  hotel  license.  Your  lawyers,  in  asking  for 
sanctions, said not only are these allegations false, my lawyers even admitted to 
this,  unbeknown  to  me,  by  filing  a  "Notice  of  Withdrawal"  of  the  specific 
allegation paragraph #38 in the complaint. However, the truth now coming out of 
a court case initiated against me by my former lawyers, the Tampa‐based Smolker 
Bartlett  law  firm,  shows  that  the  lawyers  colluded  and  deceived  the  Court  by 
suppressing evidence which proved the withdrawn allegation #38 is actually true, 
as phenomenal as it sounds. 
 
As a result of the scheming between the lawyers, truthful statements were illicitly 
transformed into "false allegations" that were either later conceded or withdrawn 
by  the  ethically  challenged  lawyers.  As  a  result,  the  judge  ruled  sanctions  were 
warranted against me. That resulted in a payment of $600,000 to the City, as well 
as a federal judge thinking Rod Eisenberg is a liar. 
 
Every  citizen  who  loves  their  country  has  a  duty  to  make  sure  our  fragile, 
democracy endures, rather than have it turn into a plutocracy where only the rich 
and  well‐connected  get  treated  with  kid  gloves,  while  all  the  rest  of  us  have  to 
suffer under a system that has only cares about its own survival. Lastly, Mr. City 
Manager:  a citizen, like me, who complains about  an government harassment is 
not  an  "enemy  of  the  state",  but  rather  just  a  citizen  who  is  complaining  of 
government harassment. 
 
Thank You and Have a Nice Day. 
 
Rod Eisenberg 
info@sadigocourt.com 
 
 
Case 1:13-cv-23620-CMA Docurnent 151 Enter(~d onFLSD [Jocket 11111/2014 Page 1 of 18

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ROl) EISENBERG.. and EI.SI~:NI3l~R(i


DEVEL,OPMENl' (~()RP., a Florida corporation~
y

d/b/a SADleJO L~()lJRT' AP /\Rl rv1E·N'I' l'I(}·r[.:L~

Plainti ffs~
v,
c~rrY· ()F M1AMI [![:A(]···I~

I)e fendant.

DEFENDAN1~ (~.IT\t ()~~ 1\11.Al\11 8EA(:li'S RI~I·:.t,Y l\>1~:1\1()R.A.NI)l;M


J:N SUPP()RT OF ITS M()TI()N F()R FINA.l.~ SIJi\<tl'lARY ,JlJ:D(•.M.EN~r

Rl\.lJL, AejUILA, CI"fV J~T1~()RNE,l (~./\R.L'r()N Flf:LJ)S J()R[)I:!:N IltJRl'4 Pdt\.


(:ITY OF M:IAMI BEA(~t'l 100 S.I:.:~.
2nd Street
J700 (~onvention Cen.ter Drive, 4th Floor iVljanli~r()\ver, Suite 4200
Miami Beae-h~ Florida 33139 rvfiaJnj~ Florida 33131-2) 13
'l'elephone: (305) 673- 74 70 ~i.feJe"h.one: (305) 530--0050
Facsimile: (305) 673-7002 :;:FacsiJnile: (305) 530...0055

l)onaJd .Papy (Fla. I:Jar No. 2(4471) f<ichard .L (}vehncn (Fla. Bar. No. 2849(4)
ChiefI)eputy C:ity Attorney r~:-nlail: ~~()Yt:llnen(ti)(:I?Jl3I..Al\v.cOtn
E-mail: \7 anlilexMorales«i;nlianlHi.bcachn.g()y Jasoq Patrick Kairalla (Fla. Ilar No. 59460 I)
AJeksandr Boksner (Fla. Bar No. 526827) I.:-nlaii: JKairalla(tl)C~P'JI1L;,,~v.CQnl
First A.ssistant C:ity i\ttorney· Justin S. V\/ales (r·'!a. (3·ar No. 992(2)
13.. mail: Ale.ks~ndr139k.sner.fg1rnjarnibca~J1Jl.goy E~ -nla i I: .J}~:jllcs(i.i)(:: FJlJLdinY,.C9tn

3696450l,?
.'e 1:13-cv.. 23620-CMA Docunlent 151 Entored on FLS[) [)ocket 11/11/2014 Page 6 of 18

~" .i
conversion long before 2011. SJ ~v1ot. at 9... 1O~ ,;~::I,ainti:tl; htIVe now withdrawn this allelation:, l
\
~~~~~,!:h..More<>\ler. the undisputed record is clear (~d.PlaintifI~~w~ that Mr, \
1
Alberto was not even presen:tat the~'*Cem:;ber' 201Ie'nf()roe,ment. Fact Stmt , 23 (unrebulted).
"rhe Coun~s MJ()P ()rder expressed interest in evidence of plaintiffs~ expressive conducf"· . . ·:
prior to 2010, likely ·to reset ve the issue 0 f \vhethcr there '\.vas any such conduct in close
proxiO'lity to the subject 2007 enf()fCClnent. detcrnlinatiot1. E(:'F No. 97 at t 3~14 (noting absence
frorrl the record of evidence support: protected act.ivity predating 20 lO). I<ather than address this
concern, the Response papers address only purported filets beginning in tllid.. 2010 '{esp. at. 14.
'l'he l\ttJ()P ()rder also finds that the (:,ourt cannot decide collateral estoppel/deference
issues in the (~ity~s favor duc in part to the absenc.e of an a.ppeal to the C:ounty r'~irl~ ./\ppcals
l30ard. I:~(~F No. 97 at 9 &, n_5~ Prior to that ()rder-; f'10vvcvcr, plainti'ffs petitioned (albeit seven
years late) to 'that 130ard a number of issues relevant to this c,ase~ including the propriety of t.he
(:ity's (:&:r) ()rder and underl)dng FFP(~ dctcrJ'ninations. EC:F No. t 20. As the re,cord rcflects~

the Board unanim,ously affirnlcd the (: ity. hI /\Jso relevant to estoppel is the fact that plaintiff
w'as c,harged cri,minaHy~ plc'd'l and \-vas sentenced H)r inter alia nUJnerous counts of C:&[) ()rder
violations. l:act Stmt. ~127 (ci.ti,ng E(~F'N(). 51 ..9.. I Il-5~ J J 6-1) (unrebuttcd). ,..,..v'rhis
;.v ,
precludes a
':""'»)o,:-"'., •.-..::"'-';O»~YI(. ..:«.: ~~l";~ ~ ""' :- ',..: » ""'..

Hnding that the arrest la~,~:~,~.p~o,bablc cause or·;\vas retaliatory., 8'ee SJ rv1ot. at l3.
A,R.<; lrM,:~:N''I'
I.. Plaintiffs' Repeated (:()lIcessio,n l~hut t'l~he (~]tJ's (;onduct Wa.s .I)ursllant To A
lfniform Enforcement J>OIiCJl Isl)isllositillC of Thc'ir ReDla,iniDg First Amendnlcnt
'Ret'aliation Claim And Support'ed B~t I'he I,Jndispllted I:'ncts
,A.. "fhe (~on~ession 'Is I)isposi:'ti,!(~ ]'ha,t F:iscnberglls ••.•:xpressi,\t,c ~-\c.ti"ritl!" l'la)red
N() Role In The .1)eeisioD ]~hat F~ire Sprinklers Ate R,equi,red At The Hotel
And That The)' 'W"c)uld Ha'vellet~b .Required, Irr,-spective ()fl:lis ·"Speecb'"
\\lithout apparently rea,tizing this c{)nc(~.;io'n nbsolut.ely preclud.es their clailu of First
t\nlcndment retaliati,oo, plaintiffs acknov.dedged that the c::ity a.cted pursuant to \·universa.f~
governnlcntal policy or CustOfl1 of requiring sprinklers in hotel oc.cupanc,i.es and "'shutting d()\vn
business[,es] that do n()t conlpIYl..r~ I<'csp. at. 3~ 4~ 5-7 (reterencing ""universal sprinkler mandate~'
and .... shutdown" policy). Fr0t11 the Response:
l'he record is clear that the C:ity required fire sprinklers ... based upon its own '~'1 r
ordinances, \vritten and uJ1\vritten internal pol icies . . . tht.lt requireti '\l)rinklers in j t..
ne,",,~v..perlnif.teli transient lodgin~g' eslablisJl11JenlS lvilJU.Jut e.,'rception. l"hen »-lhen., . J

the PJainlijj~' resisteti these local I)olicies ' ... 'he {,Yi~.v . ef~l()rce/<!l:l.l its .
< • < • «',""'

polic'ies to shut down the Sadigo C:ourt on grounds that it \-vas not in compliance....

3
3fi9M501,7
Thomas W. K. Mote
Forensic Polygraph Examiner
May 26,2016

Mr. John E. Bergendahl, Esquire


Attorney at Law
Ingraham Building
25 SE 2 nd Avenue
Suite 1100
Miami, Florida 33131

RE: Polygraph Examination of Mr::"'ef;~tt~llj~rto


CASE NO. 13-23620-CIV-ALTONAGOZ:P'SULEIVAN:::;
.-.',' .'.~.'. .:::::':::::i:::"::::-:. . ::::((:~::

At your request a Polygraph ~;j,mi~~I~~w~i,:"a,~inisteredto Mr. Jose L. Alberto on May 26,


2016. Prior to administeri!1g":tl@ eX(;lJ11i_iliol1";:o:a Polygraph Examination Consent and Release
Form was executed and th~;~aiBit;l;~~, Mr:*\.lberto, voluntarily submitted to the Examination.
::';.: . ;.:. ' ·;.::r~~::r:~:~a<.. .\:(~:~:~;t/~:

Background: T~~~0i;~;s=f;~,~i)S;:~~;~i:~;;;;1Fordetailed
c ase information please review the
associated report;~;atlCl",,~uiift~nts.;Mr.Rod Eisenberg had entered into a civil dispute with the
City of Mia111t~~_~hoverj;~:itJ;\~~deenforcement matters regarding a property he owned called
the Sadigo(;OurtAij>artmen'~fIotellocateda t 334 20 Street, Miami Beach, Florida 33139. That
th

developed ~~to an alleQ~~!~.l::bfFederalCivil Rights violations i.e., Equal Protection, First


Amendmentrand Due Prdtess claims. The Court ruled in favor of the Defendant, the City of
Miami Beach ifli:~Q"l:~:~i("

The issue was decided by the UNITED STES DISTRIC COURT SOUTHERN DISTRICT OF
FLORIDA against the Plaintiffs; Rod Eisenberg and Eisenberg Development Corp., a Florida
Corporation d/b/a/ Sadigo Court Apartment Hotel and for the Defendant, the City of Miami
Beach was the Defendant.

1
1421 NW North River Drive Miami, Florida 33125
Office: 305-324-9653 Fax: 305-671-3949
Elnail: tOlnmotc(~~}gnlail".com
Mr. Jose L. Alberto May 26,2016
Thomas W. K. Mote
Forensic Polygraph Examiner
After the Court's decision, new information was developed by Mr. Rod Eisenberg. Mr.
Eisenberg came into contact with one former City of Miami Beach Code Enforcement Officer
Mr. Jose L. Alberto after the law suit was decided. According to Mr. Eisenberg, Mr. Alberto
was a participant in the Code Enforcement action on December 02, 2011 at his property, the
Sadigo Court Apartment Hotel. Mr. Eisenberg had stated during the course of his code
enforcement proceedings and law suit, that Mr. Alberto had been thel!.~.::~nd spoke to him, Mr.
Eisenberg, saying something to the effect to him that he, Mr. Alberto, Wa~~d help him with the
issues; meaning the Code Enforcement issue.

The City of Miami Beach in response to Mr. Rod Eise9l.lerg:~ suit:::<;.qJhtinaeusly stated that
Code Enforcement Officer Mr. Jose L. Alberto was ~~~;~~; duty~"~ ~~cember 02, 2011 and
was not at the Sadigo Court Apartment Hotel. The Git~;ofNl~~~i B~~hproduced a record in
the form of a time sheet which reflected that lVI:~ri{f~I~~to wa~; .~ot bn duty that day. That
became a serious issue of contention. Furthe~~~~~~~i~¥tiig~\~iamii;BeachAttorneys obtained a
deposition from Mr. Alberto while he was~i'iFeder~ltifriso~iIW2014. In that deposition Mr.
Alberto swore under oath that he did not woriron UecemJ:).~r 02, 2011 . ..... ,........ " .
. ;;:,:::-:;:..;..... .;.. ::.:::<:::::::;:::::.::.:::;.. ;;.., ::.<:

Contrary to that, Mr. Rod Eisen~ertl:~~:;~J!\t~~t~~rJl;he


encountered Mr. Jose L. Alberto
after the suit was closed that h~:, ~~r, _~~rto, <wade, admissions to him that contradicted the
City of Miami Beach records)~tidep~ltion~':;;\ilVl:P Rod Eisenberg hired a Private Investigator,
Mr. Eric Ayal of Advanc~d (j,1~pal,;;~ecu~i{!y''C010cateMr. Alberto and did so. Mr. Eisenberg
stated that he was able to in"rvi8;lff'Mr. Al'Q,erto on May 23, 2016 and arraigned to meet with
him at about 12:30 pm··~I'l;.:·MiamiBeiIP at the Flamingo Park.
'(,:>:::::·\:::::).::.i\;·.. .·.·. :··:ii} . ..,.:.•••..•:.:...... ,

During that May(i:f:3,:'~"§~i~tIrig:l.r.Jose L. Alberto was said to have admitted to Mr. Rod
Eisenberg ~~~!.h'ff~id reca:~11it~he was at the Sadigo Court Apartment Hotel on December 02,
20 11. Mtf:{Albe~~l said . .11e also recalled that he made personal contact and recalled his
solicitous!~~nversafi',i,t:.;:~ith Mr. Eisenberg during the City of Miami Beach's Code
Enforcement·.!!~ptionth~t day as indicated above. Furthermore, that in regard to his deposition in
which he, Mr~'1tUt~': stated he was not at the Sadigo Apartment Hotel on December 02, 2011 .
was a false statemeht· he made at the suggested direction of the two (2) City of Miami Beach
Attorneys who coached him to falsify his testimony before going on the record in 2014.

Issue for Examination: The purpose of this Forensic Polygraph Examination is to clarify the
2
1421 NW North River Drive Miami, Florida 33125
Office: 305-324-9653 Fax: 305-671-3949
ElnaiJ.: tOlnmotc(~~gnlail.com
Mr. Jose L. Alberto May 26,2016
Thomas W. K. Mote
Forensic Polygraph Examiner
veracity of the statements made by Mr. Jose L. Alberto to Mr. Rod Eisenberg about the events
of December 02, 2011 when he was a Code Enforcement Officer for the City of Miami Beach
and that he made false statements about that in his 2014 deposition.

**********

3
1421 NW North River Drive Miami, Florida 33125
Office: 305-324-9653 Fax: 305-671-3949
Elllail: tommote(~!?gnlaiI.com
Mr. Jose L. Alberto May 26,2016
Thomas W. K. Mote
Forensic Polygraph Examiner
Pre-Test Interview: The issues for the Polygraph Examination were discussed with Mr. Jose
L. Alberto. Mr. Alberto reiterated what Mr. Rod Eisenberg said he was told by him as
follows:

1. That he was on duty at the Sadigo Court Apartment Hotel on December 02, 2011 along
with other Code Enforcement Officers Vincente Santiestaban,~anny Bastos, Manny
Villar, Ramon Vasallo and Mercedes Carcasses, their Supervi.sor.··:·~·~:::::::.::.:.
2. That he made personal contact with Mr. Rod Eisenbergiij!t:if,lQg. told·!!!pim that he, Mr.
Alberto, could make it all go away and that his Attome}{-~. cou}~::nbt help=l~!~j.
3. That he lied in his 2014 deposition and made false s~teriients t011"iJ!l:1icat~ that he did not
work on December 02, 2011, even though he did.
4. That he was encouraged to make those false§!fltemeD1~~ in 111§2Q 14 deposition at the
direction of two (2) City of Miami Beach.:..~ttom~ys he!i~~ntifted as Bob Switkes and
Alex Boksner. .

4
1421 NW North River Drive Miami, Florida 33125
Office: 305-324-9653 Fax: 305-671-3949
ElnaiI: tOlnm.otc(~~gnlaiJ.com
Mr. Jose L. Alberto May 26, 2016
Thomas W. K. Mote
Forensic Polygraph Examiner
Examination 1 of 1: At the conclusion of the pretest interview the Polygraph Examination was
reviewed with Mr. Jose L. Alberto and the following questions were asked:

QI: "REGARDING WHAT YOUR CITY OF MIAMI BEACH CODE ENFORCEMENT DUTIES WERE ON DECEMBER 02,
2011: DO YOU INTEND TO ANSWER TRUTHFULLY EACH QUESTION ABOUT THAT?
AI: ~'YES."

Q2: ~'WHEN YOU SAID THAT YOU WERE AT THE SADIGO COURT BUILDING 0~:!::~:ECEM'8;:~~ 02,2011 FOR A
CODE ENFORCMENT ACTION AND SPOKE WITH MR. ROD EISENBERG THAT DA~;::::A:B,fYOU IfL~,~N,:G THE TRUTH
ABOUT THAT?"
A2: "YES."
,,,::',>:::. .':::':'.::...:

Q3: "DURING THAT DECEMBER 2ND CODE ENFORCEMENT IN\4:~StIGAT1~N ATfIH~SJtDIGO COURT BUILDING:
WAS CODE ENFORCEMENT OFFICERS MERCY CARCASSES, MANN",6ASTds;:,!'~;ANTIES:TEBAN, MANNY VILLAR
AND RAMON VASALLO ALL THERE WITH YOU THAT DAY?''''':
A3: "YES"

Q4: "IN 2014 WHEN IN THE PENSACOLA FEDE+~~,L,PR1~~~1:~OR A~~OSITION REGARDING THE SADIGO
COURT ZONING COMPLAINT: DID CITY Ang~NE¥:9.:~:eBS:~ITKES,~ND ALEX BOKSNER INTRUCT YOU TO SAY
DURING THAT DEPOSITION THAT YOU DID NQ~WOR'K:>'QJ,\J 'tj~~.~'MBER 2 2011 ??"
ND

A4: "YES" '"


,".". " . .'" ..

Q5: "WHEN YOU GAVE YOUR S,:rAl~~j~N:r?I'~::~tt~ijm'~~ITION AND STATED THAT YOU DID NOT WORK ON
DECEMBER 2ND 2011: WERE Y(J:'~;:LYI:':NG6\POUT t~:AT?"
A5: "YES" ::.tCftr:.:<:>.... ':':::\":?':(. ·:-::r)(\::;:.

Test Results: N~1.~;:¥;:;,;~i1i~;i}"(NDI).


At the conc1usio~!jofthis;4I:~I~~~.~ph Examination and after detailed and careful analysis
of the four~~~;il?o~~raph c~rts~onducted during this Examination, it is the Professional
Opinion o,tis Ex~~,~:~~~tthe responses to Q2, Q3, Q4 and Q5 as listed above; had no
significantG!~consisteiNil:~onse characteristics of a deceptive nature during this Examination
of Mr. Jose iJ~4~~~e~.I. After numerically hand scoring the four (4) charts collected
they were all defqirted very clearly to be in a non-deceptive range overall. Question Q1as
listed above is introductory to the issues and is not likewise evaluated.

A test result classification of No Deception Indicated demonstrated a very high probability that
the Examinee Mr. Jose L. Alberto was truthful in his responses to the Relevant Questions
asked as listed above. See the Test Fonnat below for the statistical probability.
5
1421 NW North River Drive Miami, Florida 33125
Office: 305-324-9653 Fax: 305-671-3949
Elllail: tommotc(~!~,gnlail.com
Mr. Jose L. Alberto May 26, 2016
Thomas W. K. Mote
Forensic Polygraph Examiner
Test Format: The standardized Utah Zone Comparison Test was used to conduct the Polygraph
Examinations. This Examiner has utilized Zone Comparison test formats for over thirty (30)
years. From the several research studies conducted as to its reliability, Zone Comparison Test
have a known established percentile error rates from a minimum of .02% to a maximum of
.1 0%. This nationally recognized test format as developed by the late Mr. David Raskin and has
been peer reviewed and accepted by the American Polygraph Ass~~iation (APA), Florida
Polygraph Association (FPA), American Association of Police. Polyg(~phist (AAPP) and
multiple military and federal agencies such as the Department:>::·:~:t:: Defel;l~e Academy for
Credibility Assessment (DACA), Central Intelligence Agency:::(CIAJi:i:~n=clth~ Fe:dpral Bureau of
Investigation (FBI). ::> ' . : . :

Test Standard: Prior to conducting each polygrapn.;I[~~a;ri1~~io~ a'fi:tcquaintance Test was


conducted, by which a Test Standard was obtain~Q.. Tlli~ was· cl+l.J1 ducfed in order to provide a
means to evaluate the test subject's sUitabilit~:lot'~~t~~i*;::;if~is provided a baseline reference
criteria for the forthcoming emotional pSY,,{)physi~~~,~Y;ll{Ili~I;~ould be expected to develop
during test related to the instant case is~~es:fil\Rl~,~;': tesw\~~s designed to establish the current
individual stress level base line crite~~~!l~[, . ~~ineet1Mr. Jose L. Alberto. This Examinee
was able to provide distinct and di~~ep.§<resp~~s;t~£,!.~$ues related to truth and deception. The
test standard demonstrated no~~I'(~?ti~~l ps',popflysiological reactions that were clear and
distinct in regards to issues o,'!~tha~*k?e~~~~~~. This Test Standard provided the necessary
base line criterion; indica,!orS4rwthat :/~e\;:lloposed examinations could be accomplished and
evaluated.\1!~·"'i4f{(ili;(:,;::iV'ih';.

Methodology: 1i~';ii~~;;;:;'~~~:::~as
administered by having the Examinee respond to a
series of cards, Tor''W;ij~~l1:~~~n5Se and was asked to lie about, along with several others that
the Examin~;~'ii~8i~~,,~ruth~b~,.~, A series of seven cards were structured into a "Stibben's set
up" and Pf\5~iQedl'~i~ me~~~ to accomplish this. The format is a Known Solution Peak of
Tension Te~~~ This pr(?j0~:~~I~was conducted prior to the test on the related relevant issues.
." .

Fitness for Etih:lIi,!lttJion: A complete review of the examinee's current and past health was
conducted which ({itl not disclose any medical history that would interfere with the pending
examination. At the time of this examination Mr. Jose L. Alberto said he was not taking any .-
prescription medication, illegal controlled substance or using any alcoholic beverage and was
not under any medical or psychiatric care. Just prior to the onset of his Examination a blood
pressure test was conducted and provided a reading of 139/81 with a pulse rate of 80 bpm and
6
1421 NW North River Drive Miami, Florida 33125
Office: 305-324-9653 Fax: 305-671-3949
EJnail: tOlnmotc(~~gnlaiI.com
Mr. Jose L. Alberto May 26, 2016
Thomas W. K. Mote
Forensic Polygraph Examiner
was in a normal range. Mr. Alberto was determined to be a suitable candidate for testing.

Instrumentation: For detailed analysis, the scientific instrumentation for this examination was
composed of a multi-channel computer assisted equipment and sensors, manufactured by
Limestone Technologies and was utilized to conduct this Examination. It is commonly referred
to as a multi-channel computerized Polygraph Instrument. This is a se:~:f-calibrating instrument
by the manufacture's design and self-calibrates at the initiation of apy test.·.. T his instrumentation
continuously recorded the Examinees respiratory, cardio blood H~ressure,:E~lse rate, electro
dermal activity and relative body movements, via a seat mo~gn setl,~d¥'*)(t~!'Clewonstrated the
emotional psychophysiology that occurred during this c;,y~di5ility l\~'§F~sml;lJ1t Examination;
commonly referred to as a Forensic Polygraph Exalliiiiltion. :ii:hrs:::::::i.nstrumentation is an
industry standard accepted by the APA, FPA, AAPP, v·~rious~iJitarY::a~dFederal agencies such
as DACA, CIA, FBI, as well as the Canadian Roy~lMoa'tedPo"~e (RCMP) and others.
':-':.. :':.':':':':'::'.
............-..... ......•

Comment 1 of 1: This Polygraph L...I'T,'"'_ ... _r',... :·I:"l._ w~\~\\;;~~:i~~jn accordance with the State of
Florida HB 7015 guidelines, of July 01, 20 ~s;\,\~y tht:tguidelines of the Federal Rules
of Evidence, as provided in ARTICLE 1 throuigh 706.

Email Signature

~&~
Polygraph .J.:JA.I"III.III~;I:::j::·
Florida Polygraph "'~~Qt~.~,~
Certification #1
TWKM

7
1421 NW North River Drive Miami, Florida 33125
Office: 305-324-9653 Fax: 305-671-3949
EI.llail: tOlnrnote(~Dg:nlaiI.com
Mr. Jose L. Alberto May 26, 2016
AFFI.DAVIT OF JOSE L.ALBERTO

STATE OF FLORIDA
COU'NTY OF MIAMI-DADE

Before me, the undersigned autholity personally appeared, JoseL.

Alberto, who after being dtlly sworn deposes and says:

1) My nalne is JoseL. Alberto and I currently reside at 1255 Lenox

Avenue 'Miami .Beach, Florida 33139. In 2011, I was a Miami .Beach Code

Compliance Ot-'ticer and I ha.d the Sadigo Court Apartmellt 'Hotel und.er my

jurisdiction at the tim.e4 I was involved in the City's first successful

shutdown of the Sadigo CO'urt on June 30,2011.

2) On December 2, 2.011, I went to Sadigo to chec.k on tIle shutdown t11at

was occurring that day. I arriv'ed at around 5p'rn and I saw Mr. Eisenberg and

briefly spo:ke to him. in the courtyard. I told him that his la~vyers were not

going to be able to help him_ I :put my arm around him and said if he needed

my assistance to please let me kn.o\v.

3) While I was ·walkin.g the premises of the Sadigo on Dec. 2,2011, I

recall seeing Code Compliance Officers Mercedes Carcasses, .Manny Villar

and Ramon Vasallo and they most definitely would have seen me there as

well, as I was not hidin,g .mypresence.


Affidavit ofJose L. Alberto
Page 20f3

4) On September 19,2014, during my time of incarceration, Eisenberg's

attorney, Jake Cremer of Smolker, Bartlett, et.al., came to FPC inPensa.cola,

Florida and took my deposition. Prior to tIle s·cheduled deposition, I met

privately with Mr. Alex Boksner, Esq. from tile City and a Mr. R.obeltL.

Switkes, Esq., who was representing my interest during the deposition.

They asked me questions pertaining to the events o'f December 2, 2011, Art

Basel Eve, during the second shutdown. Although I informed them of my

brief presence at tIle Sadigo Court al1d my brie:f conversation with Mr.

Eisenberg during the second shutdown, they insisted that I respon.d in the

negative or say I don't recall or I don't remember, if ever asked by

Eisenberg's attom.eys whetller I was there that day. They told me that if I did

not answer in that way, Eisenberg WOllld have more al11111unition to pull me

into the litigation. I believed theln and answered in accordal1ce with their

instructions.

5) As foretold, Jake Cremer, Eisenberg's attorney" did ask me whether I

was present on Dec. 2, 2011 and wheth.er I h.ad ever spokel1 to .Mr. Eisenberg

and/or offered to assist him with code compliance issues. In botll instances I

answered in th.e negative.

6) I recently ·underwent a polygraph examination on May 26, 2016. The

examiner asked me questions and I answered them. truthfully. I was recently


Affidavit ofJose L. Alberto
Page 3 0/3

informed that I passed that polygraph exam concerning the issues in this

affidavit.

FURTHER AP'FIANT SAYETH NA'UGHT.

Dated this .kLday of June, 2016

Under oath an.d penalty of perJury under the law of" the State of Florida

before me appeared, JOSE L. ALBERTO, anti sw·ore that the foregoing is

tnle and correct.

Dated this loth day of June, 2016.

Personally Known __lID Provided / '


Case 1:13-cv-23620-CMA Docurnent 99 Entered on FLSD Docket 09/22/2014 Page 1 of 26 1

1 UNITED STATES DISTRICT COURT


SOUTHERN DISTRICT OF FLORIDA
2
13-23620-CV-ALTONAGA/O'5ULLIVAN
3
4 ROD EISENBERG, ET AL, )
)
5 PLAINTIFFS, )
)
6 VS. )
)
7 CITY OF MIAMI BEACH, )
)
8 DEFENDANT. )
)
------------------------------
9
(TRANSCRIPT BY DIGITAL RECORDING)
10
11 TRANSCRIPT OF DISCOVERY HEARING HAD BEFORE THE
12 HONORABLE JOHN J. O'SULLIVAN, IN MIAMI, MIAMI-DADE COUNTY,
13 FLORIDA, ON SEPTEMBER 2, 2014, IN THE ABOVE-STYLED MATTER.
14
15
APPEARANCES:
16
FOR THE PLAINTIFFS: JACOB T. CREMER, AND
17 CLIFTON GRUHN, ESQS.
SMOLKER BARTLETT SCHLOSSER LOEB &
18 HINDS, P.A.
500 E. KENNEDY BLVD., SUITE 200
19 TAMPA, FL 33602 - 813 223-3888
20 FOR THE DEFENDANT: JASON P. KAIRALLA, ESQ.
CARLTON FIELDS JORDEN BURT, P.A.
21 lOOSE SECOND STREET, SUITE 4200
MIAMI, FL 3311 - 305 530-0050
22
23 CARL SCHANZLEH RPR - CM
CERTIFIED COURT REPORTER
24 9960 SW 4TH STREET
PLANTATION, FLORIDA 33324 ' ,r
25 954 424-6723
Case 1:13-cv-23620-CMA Document 99 Entered on FLSD Docket 09/22/2014 Page 2 of 26 2

1 APPEARANCES CONTINUED:
2 FOR THE OBJECTOR: ROBERT L. SWITKES, ESQ.
ROBERT L. SWITKES & ASSOCIATES, P.A.
3 407 LINCOLN ROAD, PENTHOUSE SE
MIAMI BEACH, FL 33139 - 305 534-4757
4

6 TABLE OF CONTENTS
7 WITNESSES: DIRECT CROSS REDIRECT RECROSS
8
INDEX TO EXHIBITS
9
EXHIBITS MARKED FOR RECEIVED
10 IDENTIFICATION IN EVIDENCE
11 DESCRIPTION PAGE LINE PAGE LINE
12
13
14
15
16
17
18
19
20
21
22
23
24

25
Case 1:13-cv-23620-CMA Document 99 Entered on FLSD Docket 09/22/2014 Page 8 of 26 8

1 MR. CREMER: MAY I APPROACH?


2 THE COURT: SURE.
3 MR. CREMER: YOUR HONOR, MR. KAIRALLA IS CORRECT. I
4 THINK WE HAVE REACHED AGREEMENT ON ALL OF OUR ISSUES EXCEPT FOR
5 THE ONE HE MENTIONED.
6 THE ONE ISSUE I WOULD BRING UP IS SINCE OUR DISCOVERY
7 PERIOD COMES TO A CLOSE ON FRIDAY, I WOULD REQUEST YOUR LEAVE
8 THAT IF WE ARE NOT ABLE TO COMPLETELY RESOLVE THOSE ISSUES WE
9 CAN STILL COME BACK BEFORE YOU ON THOSE.
10 THE COURT: AND YOU NEED TO DO IT FAIRLY QUICKLY. IN
11 OTHER WORDS, NOT IN A COUPLE OF MONTHS FROM NOW.
12 MR. CREMER: OH, YES, YOUR HONOR. 1 MTALKING ABOUT
1

13 WEEKS AND NOT MONTHS.


14 THE COURT: OKAY.
15 MR. KAIRALLA: I WOULD ALSO LIKE TO CLARIFY THAT JUDGE
16 ALTONAGA HAS GIVEN US LEAVE TO CONDUCT DEPOSITIONS PAST THE
17 DISCOVERY PERIOD.
18 THE COURT: OKAY.
19 MR. KAIRALLA: JUST SO THE COURT IS AWARE.
20 MR. CREMER: YOUR HONOR, OUR COMPLAINT IS FRAMED IN
21 TERMS OF A FIRST AMENDMENT RETALIATION CLAIM AND A SUBSTANTIVE
22 DUE PROCESS CLAIM. THOSE ARE THE CLAIMS REMAINING.
23 THE BACKGROUND THAT MY CLIENT OWNS AND OPERATES A
24 HISTORIC HOTEL IN MIAMI BEACH. OUR ALLEGATIONS ARE THAT HE WAS
25 SUBJECT TO A SERIES OF ESCALATING ENFORCEMENT ACTIONS BY THE
Case 1:13-cv-23620-CMA Document 99 Entered on FLSD Docket 09/22/2014 Page 9 of 26 9

1 CITY OF MIAMI BEACH. AND THOSE ENFORCEMENT ACTIONS WERE


2 UNCONSTITUTIONALLY TIMED, NUMBER ONE, IN RESPONSE TO HIS FIRST
3 AMENDMENT ACTIVITIES; AND, NUMBER TWO, THEY WERE TIMED TO HARM
4 HIM THE MOST.
S THE COURT: WHAT WAS HE SAYING THAT GOT THE CITY
6 UPSET?
7 MR. CREMER: YOUR HONOR, MY CLIENT IS A VERY
8 BOISTEROUS AND VOCAL MAN. AND HE, YOU KNOW, FLATLY ACCUSED THE
9 CITY OF CORRUPTION ON A NUMBER OF OCCASIONS BEFORE HE UNCOVERED
10 THAT THE CORRUPT RING ACTUALLY INVOLVED HIS PROPERTY. AND All
11 OF THIS CULMINATED ON ART BOSEl -- THE BEGINNING OF ART BOSAl
12 WEEKEND, DECEMBER OF 2011, WHEN THE CITY SHUT HIM DOWN DURING
13 THE OPENING OF AN ART BOSEL PARTIES HE WAS HOSTING OR EVENT.
14 AND DURING THAT SHUTDOWN MR. JOSE ALBERTO, WHO WAS THE
15 CITY'S LEAD CODE COMPLIANCE OFFICIAL AT THE TIME, SOLICITED MY
16 CLIENT -- SOLICITED A BRIBE FROM MY CLIENT. OBVIOUSLY THAT'S
17 WHY WE WANT HIS DEPOSITION.
18 IN THE CRIMINAL COMPLAINT THAT INVOLVED MR. ALBERTO IT
19 INVOLVED SIX OTHER INDIVIDUALS. SO SEVEN TOTAL. WE HAVE
20 LINKED -- THROUGH THE DOCUMENTS IN THIS CASE WE HAVE LINKED
21 FOUR OF THEM DIRECTLY TO ENFORCEMENT ACTIONS RELATED TO MY
22 CLIENT'S PROPERTY.
23 THE COURT: THESE ARE FOUR CITY EMPLOYEES, IS THAT

24 WHAT YOU'RE TALKING ABOUT?


25 MR. CREMER: YES, YOUR HONOR. THERE WERE SEVEN CITY
Case 1:13-cv-23620-CMA Document 99 Entered on FLSD Docket 09/22/2014 Page 10 of 26 10

1 EMPLOYEES TOTAL IN THE FIRE AND CODE INSPECTION DEPARTMENTS.


2 WE HAVE LINKE:D FO,UR OF THOSE SEVEN TO MY CLIENT" '5 PRO·P:ERTY

3 THE COURT: RIGHT.


4 MR. CREMER: -- ULTIMATELY CULMINATING IN THE SHUTDOWN
5 AND THE SOLICITATION OF A BRIBE.
6 NOW, BECAUSE OF THE WAY THE EVENTS PLAYED OUT WE
7 FRAMED THEM AS FIRST AMENDMENT CLAIM AND A SUBSTANTIVE DUE
8 PROCESS CLAIM.
9 BUT, YOU KNOW, I THINK WE SHOULD AT LEAST GET THE
10 OPPORTUNITY TO SIT DOWN AND FIND OUT WHAT THEY KNOW AND TO WHAT
11 EXTENT THEY WERE INVOLVED IN THE -- IN MY CLIENTIS SHUTDOWN.
12 THE COURT: I DONIT THINK THAT -- JUST LET ME
13 INTERRUPT BECAUSE MAYBE WE CAN CUT TO THE CHASE.
14 MY UNDERSTANDING IS THAT THE DEFENDANT IS NOT
15 OBJECTING TO THAT, CORRECT?
16 MR. KAIRALLA: NO, YOUR HONOR. WITH RESPECT TO WHAT'S
17 HAPPENING AT THE SADIGO, WE WOULD NOT OBJECT TO QUESTIONING
18 ABOUT THAT.
19 THE COURT: OKAY.
20 MR. KAIRALLA: ITIS THE ANCILLARY ISSUES.
21 THE COURT: SO, THEY DON'T CARE IF YOU QUESTION THESE
22 PEOPLE ABOUT, YOU KNOW, WHY DID YOU COME TO HIS ADDRESS? WHAT
23 DID YOU DO THERE? YOU KNOW, DID YOU ASK HIM FOR A BRIBE, OR
24 WHATEVER ELSE YOU WANT TO ASK HIM REGARDING THAT.
25 WHAT 1 MHEARING FROM THEM IS THEY DONIT WANT YOU THEN
1
Case 1:13-cv-23620-CMA Document 99 Entered on FL.SD Docket 09/22/2014 Page 11 of 26 11

1 TO GO GOING INTO, YOU KNOW, A QUESTIONING OF THIS -- YOU KNOW,


2 THE CITY IS A BASTION OF CORRUPTION OR A CULTURE OF CORRUPTION.

3 MR. CREMER: WELL, YOUR HONOR, IF THEY WERE INVOLVED


4 IN A CORRUPT RING, AND THESE INDIVIDUALS HAVE ALL PLEADED
5 GUILTY TO WHAT THEY WERE DOING TO THE NIGHTCLUBS, I THINK WE
6 SHOULD BE ABLE TO ASK THEM AND FIND OUT IF THE WAY IN WHICH
7 THEY WERE EXTORTING AND PROTECTING THESE NIGHTCLUBS IF THEY
8 WERE DOING -- YOU KNOW, IF THEY WERE UNDERTAKING SIMILAR ACTION
9 TO THE SADIGO COURT.
10 AND TO LINK THOSE TWO, IF THERE IS A LINK, NECESSARILY
11 WE HAVE TO ASK THEM ABOUT WHAT THEY WERE DOING TO THE

12 NIGHTCLUBS. AND FURTHERMORE, WHETHER THIS WAS GOING ON TO


13 OTHER INDIVIDUALS OR PROPERTY OWNERS ON THE BEACH THAT ARE YET
14 TO BE UNDISCOVERED.
15 I MEAN, WE ARE NOT LOOKING FOR A FISHING EXPEDITION.

16 WE ARE JUST LOOKING TO SIT DOWN AND ASK THEM WHAT DO THEY KNOW
17 RELATED TO THE CORRUPT RING THEY WERE INVOLVED IN AND TO FIGURE
18 OUT WHETHER THAT RING HOW IT IS CONNECTED TO MY CLIENT'S
19 PROPERTY. AND AGAIN, WE HAVE CONNECTED FOUR OF THOSE, FOUR OF
20 THOSE SEVEN INDIVIDUALS.
21 THE COURT: HOW ARE THEY CONNECTED?
22 MR. CREMER: MR. JOSE ALBERTO WAS --
23 THE COURT: WELL, I MEAN, HIM YOU HAVE A PRETTY GOOD
24 EVIDENCE THERE, ASSUMING THAT IT IS SUPPORTED BY ANYTHING THAT
25 HE ASKED FOR A BRIBE. SO, HE'S OBVIOUSLY CONNECTED.
Case 1:13-cv-23620-CMA Docul'nent 99 Entered on FLSD Docket 09/22/2014 Page 12 of 26 12

1 WHAT ARE THE OTHER THREE -- WHAT ARE THE OTHER FOUR.
2 IS IT ANOTHER FOUR OR ANOTHER THREE?
3 MR. CREMER: IT IS SORT OF IN STARTING AT THE TOP OF
4 THE MOST INVOLVED TO THE LEAST INVOLVED. I MEAN, IT APPEARS
5 THAT MR. WILLIE GRANT WAS ALSO VERY INVOLVED. HE WAS THE LEAD
6 INSPECTOR ON ONE CODE COMPLIANCE CASE THAT WAS GOING ON ABOUT
7 THE SAME TIME LEADING UP TO THE SHUTDOWN OF MY CLIENT'S
8 PROPERTY, THE SADIGO COURT. SO, HE WAS RUNNING THE LEAD ON THE
9 ACTUAL INSPECTION WORKING WITH THE CODE COMPLIANCE DEPARTMENT
10 AND THE SPECIAL MASTER. HE WAS ALSO DIRECTLY UNDER -- HE
11 REPORTED TO JOSE ALBERTO.
12 THE COURT: OKAY.
13 MR. CREMER: CONTINUING. THERE WAS -- I THINK IT I5
14 PRONOUNCED KI FOOTMAN. MR. FOOTMAN WAS IN THE FIRE DEPARTMENT.
15 HE AT ONE POINT WAS GIVEN ORDERS AFTER THE SHUTDOWN, AND THE
16 E-MAILS REFLECT THIS. HE WAS GIVEN ORDERS TO GO OBSERVE AND TO
17 CHECK ON THE HOTEL TO MAKE SURE IT WASNIT OPERATING ANYMORE AND
18 TO BASICALLY FOLLOW UP ON THE SHUTDOWN.
19 AND THEN MR. VASALLO, V-A-S-A-L-L-O, HE WAS ALSO
20 INVOLVED IN A -- HE SEEMS TO BE THE LEAST CONNECTED INDIVIDUAL.
21 WE ARE NOT SEEKING TO DEPOSE HIM. HE WAS INVOLVED IN A
22 PREVIOUS CODE ENFORCEMENT ACTION, I BELIEVE IT WAS A COUPLE OF
23 YEARS BEFORE THE ACTUAL SHUTDOWN.
24 THE COURT: OKAY. SO, WHAT AREAS DO YOU WANT TO GET
25 INTO WITH THESE -- I GUESS THE ONES THAT ARE BEFORE ME ARE
Case 1:13-cv-23620-CMA Document 99 Entered on FLSD Docket 09/22/2014 Page 13 of 26 13

1 FOOTMAN, WILLIE GRANT, JOSE ALBERTO, AND DAVID WESTON.


2 MR. CREMER: ARE WE STILL DISCUSSING DAVID WESTON?

3 MR. KAIRALLA: YES.


4 MR. CREMER: OKAY. AS FOR MR. FOOTMAN AND MR. GRANT
5 AND MR. A'LB'ERTO , OBVIOUSLY WE WOULD LIKE TO ASK THEM ABOUT ANY
6 AND ALL KNOWLEDGE THEY HAVE RELATED TO THE ENFORCEMENT ACTIONS
7 AND THEIR INVOLVEMENT IN THOSE AS IT RELATES TO THE SADIGO
8 COURT, MY CLIENT'S PROPERTY.
9 THE COURT: YEAH. I HAVE NO PROBLEM WITH THAT.
10 MR. CREMER: OKAY. I WOULD LIKE TO THEM ABOUT THE
11 CRIMINAL ACTIVITY THAT THEY WERE INDICTED FOR AND SOME OF WHICH
12 THEY ULTIMATELY PLED GUILTY TO.
13 THE COURT: I MEAN, WHAT
14 MR. CREMER: THIS WAS BASICALLY AN EXTORTION AND
15 PROTECTION RACKET THAT WAS -- THAT INVOLVED NIGHTCLUBS ON THE
16 BEACH.
17 THE COURT: OKAY.
18 MR. CREMER: SO, WE WOULD LIKE TO UNDERSTAND HOW THAT
19 WORKED, HOW -- WHAT THEIR INVOLVEMENT IS, WHAT OTHER
20 INDIVIDUALS WERE INVOLVED IN THAT. AND THEN WE WOULD LIKE TO
21 ASK THEM ABOUT WHETHER THERE WERE OTHER INDIVIDUALS AND
22 PROPERTIES THAT THIS RING WAS TARGETING OR INVOLVED WITH.

23 THE COURT: AND HOW IS THAT RELEVANT TO THIS CASE?

24 MR. CREMER: WELL, IT'S RELEVANT BECAUSE I BELIEVE,


25 YOUR HONOR, IT WOULD SHOW THE CITY'S MOTIVATIONS IN ITS
Case 1:13-cv-23620-CMA Document 99 Entered on FLSD Docket 09/22/2014 Page 14 of 26 14

1 ESCALATING SERIES -- OR ITS EXCALATING CAMPAIGN OF ENFORCEMENT.


2 THE COURT: I DON'T COMPREHEND THAT. GIVE ME AN
3 EXAMPLE HOW THAT WOULD SHOW.
4 MR. CREMER: WELL, I THINK, YOUR HONOR, IT WOULD SHOW
5 IF THIS RING WERE INVOLVED WITH MORE THAN SAY JUST THE
6 NIGHTCLUB. IF THEY WERE INVOLVED IN EXTORTING OTHER PROPERTY
7 OWNERS, AND A NUMBER OF THOSE INDIVIDUALS WERE INVOLVED IN OUR
8 ENFORCEMENT ACTIVITIES. I THINK A JURY COULD DRAW THE
9 INFERENCE THAT THE REASON THEY WERE INVOLVED WITH OUR PROPERTY
10 WAS TO TRY TO SET THE PROPERTY OWNER UP FOR EXTORTION OR
11 PROTECTION. IN OTHER WORDS, TO BE INVOLVED IN THE RACKET.
12 THE COURT: AND WHAT ALLEGATIONS IN THE COMPLAINT DOES
13 THAT RELATE TO?
14 MR. CREMER: COULD YOU REPEAT YOUR QUESTION?
15 THE COURT: WHAT ALLEGATIONS -- DISCOVERY IS LIMITED
16 TO THE CLAIMS AND DEFENSES AS OUTLINED IN YOUR COMPLAINT AND IN
17 THEIR ANSWER. WHAT ALLEGATIONS IN THE COMPLAINT WOULD THAT

18 RELATE TO?
19 MR. CREMER: WELL, YOUR HONOR, WE -- AGAIN, WE HAVE A
20 SUBSTANTIVE DUE PROCESS CLAIM. A SUBSTANTIVE DUE PROCESS
21 PROTECTS THE GENERAL RIGHT OF AN INDIVIDUAL TO BE FREE FROM THE

22 ABUSE OF GOVERNMENTAL POWER.


23 I WOULD SUGGEST THAT A EXTORTION RACKET IS AN
24 ACTIONABLE ABUSE OF GOVERNMENT POWER. OBVIOUSLY WE HAVE TO
25 CONNECT TO THAT.
Case 1:13-cv-23620-CMA Document 99 Entered on FLSD Docket 09/22/2014 Page 15 of 26 15

1 AND A FIRST AMENDMENT RETALIATION CLAIM TO ESTABLISH


2 THE CAUSAL CONNECTION THERE, THEN THE PLAINTIFF HAS TO SHOW
3 THAT THE PROTECTED CONDUCT WAS A MOTIVATING FACTOR BEHIND THE
4 DEFENDANTS' ACTIONS.
5 AND WHAT 1 MSUGGESTING IS THAT IF -- IS THAT IF THE
1

6 EXTORTION RING LEARNED THAT MY CLIENT WAS GOING TO THE PRESS,


7 OR GOING ABOVE THEIR HEAD TO THEIR SUPERIORS AND THEIR ELECTED
8 OFFICIALS THEN THAT COULD BE A MOTIVATING FACTOR FOR WHY THEY
9 SHUT HIM DOWN.
10 IN OTHER WORDS, THEY WERE SETTING HIM UP FOR THE
11 EXTORTION, THE ASK, IF YOU WILL. AND THEN PERHAPS THEY SHUT
12 HIM DOWN BECAUSE HE WAS GOING ABOVE THEIR HEAD IN ORDER TO
13 COVER THE EVIDENCE.
14 THE COURT: OKAY. NOW, WHAT DOES THE DEFENDANT SAY
15 ABOUT THAT?
16 MR. KAIRALLA: YOUR HONOR, THIS HAS SOMEWHAT OF A LONG
17 AND TORTUOUS HISTORY.
18 THE COURT: I MAIN, LET ME JUST INTERRUPT.
19 I SUPPOSE SOME OF THIS IS GOING TO BE DETERMINED AT
20 THE -- AT THE DEPOSITION BECAUSE IF THE FELLOW SAYS, YEAH, WE
21 SET UP YOUR CLIENT BECAUSE WE WERE CONCERNED THAT HE WAS GOING
22 TO EXPOSE THE CORRUPTION THAT I WAS INVOLVED IN AT THE FOUNTAIN
23 BLUE HOTEL, THEN IT WOULD BE RELEVANT TO THIS CASE.
24 IF INSTEAD HE SAYS, YOU KNOW, NO. I DID SOME WRONG
25 THINGS THAT I GOT INDICTED FOR -- I DON'T KNOW. DID THESE GUYS
Case 1:13-cv-23620-CMA Docurnent 99 Entered on FLSD Docket 09/22/2014 Page 20 of 26 20

1 EMPLOYEE OF THE CITY WHO WE LISTED BECAUSE WE -- WE LISTED ON


2 OUR SUPPLEMENTAL DISCLOSURES IN AN ABUNDANCE OF CAUTION BECAUSE
3 WE BECAME AWARE OF HIM FROM DOCUMENTS THAT THE CITY PRODUCED
4 ABOUT FOUR OR FIVE WEEKS AGO.
5 WE STARTED INVESTIGATING HIS HISTORY AND WE BELIEVE HE
6 MAY HAVE INFORMATION. AT THIS TIME WE DON'T INTEND TO DEPOSE
7 HIM. WE MAY TRY TO LOCATE HIM AND SEE IF HE IS WILLING TO BE
8 INTERVIEWED.
9 THE COURT: OKAY.
10 MR. KAIRALLA: YOUR HONOR, THEY DISCLOSED HIM IN A
11 THIRD SUPPLEMENT TO THEIR INITIAL DISCLOSURES WHICH THEY SERVED
12 ON THE CITY I BELIEVE FRIDAY BEFORE THE LONG WEEKEND AND THAT
13 SEEMS A LITTLE LATE, ESPECIALLY GIVEN THAT THEY'VE SAID THEY
14 HAD THE DOCUMENTS FOR FIVE WEEKS.
15 MR. CREMER: YOUR HONOR, THIS --
16 THE COURT: OKAY. WELL, I DON'T NEED TO WORRY ABOUT
17 THAT RIGHT NOW.
18 MR. CREMER: OKAY.
19 THE COU"RT: SO, I'M GOING TO ALLOW YOU TO HE DEPOSE

20 THEM AND QUESTION THEM, OF COURSE, IN REGARDS T~ THEIR


21 RELATIONSHIP TO YOUR CLIENT, AND HIS COMPANY, AND HIS BUILDING,
22 AND HIS BEING CLOSED DOWN. I AM GOING TO LET YOU TALK TO THEM
23 ABOUT -- BECAUSE I FIND THAT IT'S FAIR TO KNOW WHO YOUR WITNESS
24 IS.
25 IF YOU ARE GOING TO PUT HIM ON THE STAND YOU NEED TO
Case 1:13-cv-2·3620-CM·A Docunlent 129-1·4 Entered on FLSD Docket 10/20/2014 Page 1 of 1

From: AlbedofJo:s:e
Sent: Thursday,. May 19.. 201: 1 5:29' PM
To: Maonen:~ Sonta; Montoya. Rhonda·
Cc: S:antos~Atborna:, Robert; CastelL George~ VlUar,: Manny; Gonz:alez Elizabeth; Vare'ls, 1

Kenneth; Del Favero•. Gregory; Bonaguidl, Robert:; Varel9 Kenneth t

SubJect: R:E: sadigo bl(lg .

Sonia.,. yes }'our right we going to have· to watch a·nd see..

George-Lets .set up a .sting next "vee~L H-opefuHy ttl!!.}! vAn not contlnue and were hOfH?st and ~vHI go back to apartments
rental only~ If thev don'tl vie VJHl shut then1 down VJlth prj and Fire,

Thanks,

Jose Alberto,. Co<16 Compliance 1...(#1(/ AdmiNiiitrator


COOf COMPUANCf ONlS10N
505· 11th Street. Miami B~ach~ F'L 33139:
Tel: 3o.5"'613~,1000 :( 68:54 ! PlJmof.'nlF·~x :18S»394,,415~! (jff;ce f:t'->: S{) S+ 613., 1()·~ 2 t ~AV·,~m~4,~b!j~gsj:~

From:' Machen, Sonia


5entt Thursday; M'ay 19t 2011 5:01 PM
To: Montoya" Rhonda; Alberto, Jose
Subject: sadigo bldg

Rhonda
Something is up. Eisenbe:rs and the a:ttor'n'ey did a compl·ete· '180 on their argument The owner stated that he wants to
operate an apartment bldg $:0 hewiU o'bt:eHn the BTR/CU for apts., which he had origincJ:lfv and did not renew in October.
The judge gave them 'til July t·o renew ·the apt license. J don't understand why again so f.ong~

Jose
Now I guess we have to catch him· operating' :8 hotel. .i know they had hHOT'El~j written on the aW'ling up front so I 8:m
j

a:ssumin.g they removed it.

Weare go.iog to have to shut it down :when we find the hote·' guestsl I will use the fire safety requirements for hotel
·ahdCode can use the lack hotel BTR.

Sonia Ft·otes Ma:chen., P.:I~t Fdi'!J ~1arshlJl


FJFtE O!PA~TtvleNTFjre Prevantit,M,··O'vislon
17()1 M:endian Avenu8 $u.ite. 201. Mlarni Be.ar;J'L p'L ~~H39
j

reI: 305..673·..7'123: l p'$x: 30Sw.sis".1,t):$e l }~it:Jjlian1.11~els;blJJLQ.r:

CMBEMAILO'O'112715
r Machen, Sonia
a
From: Boksner, Aleksandr
sent: Thursday, October 20, 2011 12:38 PM
To: London, Charles; Doyle, Millie; Rodriguez, Eugene; Montoya, Rhonda; Fernandez. Hilda
CC: Hernandez, DaVid; Gullage, Richard; Machen. Sonia; Santos-Alboma, Robert; Castell,
George; Alberto. Jose: Smith, Jose
Subject: RE: Reschedule date for 8edaigo Detail

To All..

At this juncture, the City will be removing transient individuals trom the Rooms at this·Hotel (Sadigo Court). It will be
essential to have PO present to intercept those individuals returning to the Hotel in order to ensure they remove their
personal belongings, and are immediately escorted from the Hotel premises.

Only non-transient persons will be permitted to remain at the premises, and those individuals will be required to provide
evidentiary support that they are pennanentfy residing at the premises.

Please give either Rhonda (Fire Legal Advisor) or myself regarding any questions.

MIAMIBEACH
Aleksandr Bokaner. senior Assistant City AttorneylPoIice Legal Advisor.
OFFICE OF THE CITY ATTORNEY
1700 Convention Center Drive -4th Roor. Miami Besch, Florida 33139
Tel: 305-673-7470 or 305-673-7000 ext. 6212 I Fax: 305-673-7002
( alelssandrboksnerQmJamibeacbn gov

We ere committed to providing ex.cellent public selVice and ssfety to all who live, worlc. and play in our vibrant, tropica/~ historic community.

From: London, Charles


sent: Thursday, OCtober 20, 201110:20 AM
To: Doyle, Millie; Boksner, Aleksandr; Rodriguez, Eugene
Cc: Hernandez, David; Gullage, Richard
s..bjett: Reschedule date for 5edaigo Detail
th
Lt. David Hernandez will be transferring to the Patrol DivIsion on Monday, October 24, I will be assuming his

responsibilities on that date and I


am unable to attend the sedalgo detafl on October 26th• The new date will be Thursday, October 27th If that is agreeable
to your individual staffing.
A detail briefing will be conducted In the CID main conference room at 1700 hours on October ·27. Please have all
persons under your command that will be involved In the detail attend this briefing.

MIAMIBEACH
Lieutenant Curl. . London
Criminal Investigations Division / Property Crimes Section
1100 Washington Avenue. Miami Beach. Fl 33139
Tel: 305.673.7776 Ext. 5372/ Fax: 786.394.5084
CharlesLondonl:Rmlamibeachfl.gov
We ere committed to providing .xcellen! public "Moe and se'.ty to 1111 who live. WOIk lind play in our vibrant. tropic_I. histone community.

1
Case 1:13-cv-23620-CMA Document 61 Entered on FLSD Docket OS/27/2014 Page 1 of 23

IN THE UNITED STATES COURT


SOUTHERN DISTRICT OF FLORIDA
ROD EISENBERG, and EISENBERG
DEVELOPMENT CORP., a Florida
Corporation, d/b/a SADIGO COURT Case No.: 1:13-cv-23620-CMA
APARTMENT HOTEL,
Plaintiffs,
vs.
CITY OF MIAMI BEACH,
Defendant,

PLAINTIFFS' RESPONSE TO
DEFENDANT CITY OF MIAMI BEACH'S
MOTION FOR JUDGMENT ON THE PLEADINGS

David Smolker, Esq., (FB #349259)


davids®snl0Ikerbartlett.com
Ethan J~ Loeb, Esq. (FB #0668338)
ethanl((/),smolkerbartlett. COln
Jacob T. Cremer, Esq. (FB #0083807)
jacobc@)slTIolkerbartlett.com
500 East Kennedy Boulevard, Suite 200
Tampa, Florida 33602
Phone: 813-223-3888
Facsimile: 813-228-6422
Counsel for Plaintiffs
Case 1:13-cv-23620-CMA Document 61 Entered on FLSD Docket OS/27/2014 Page 15 of 23

had still pleaded enough to show the agency and officials had used their discretion to punish the
day care. Id. at 545. The 2d Circuit affirmed. Id.
In this case, Plaintiffs have sufficiently pleaded a First Amendment retaliation claim-
with facts far more egregious than in Royal Crown Day Care. Plaintiffs have pleaded a long
pattern of activities protected by the First Amendment, along with the City's corresponding
retaliatory actions, which were intended to exercise the City's discretion to maximize harm to the
Plaintiffs. Specifically, the Plaintiffs have pleaded a causal connection between the retaliatory
actions and the adverse effect on speech by alleging that the protected conduct was a motivating
factor behind the City's actions. PI. CompI. [Doc. 1, ~~ 57-59, 74]. Moreover, the temporal
proximity of the City's discrete actions, as well as its overall campaign of harassment,
demonstrates a causal connection. See Exh. 1 [Doc. 60-1]. For example, just days after the
Plaintiffs complained at a public hearing about their unfair treatment by City staff, the City told
the Plaintiffs' mortgagee that they were operating an illegal hotel, causing the mortgagee to
refuse not to renew the loan. Id. 15 As another example, Mr. Eisenberg was arrested after the
Plaintiffs refused to pay a bribe to the City as it was shutting down the Sadigo Court during a
high-profile event and during a time when the City was embroiled in multiple investigations
related to its long history of extortion and bribery. Id.
2. The Authorities Cited by the City are Distinguishable and Do Not Demonstrate
Plaintiffs' Claims Should be Dismissed Before Completion ofDiscovery.
The City ignores the law discussed herein, which Plaintiffs have previously argued, and
which this Court relied upon in denying the City's virtually identical motion to dismiss. See
Eisenberg, 2014 WL 821282 [Doc. 36 at 18-23]. Instead, the City points to two inapt summary
judgment cases. First, the City cites a summary judgment case involving a public employee.
Clark Cnty. Sch. Dist. v. Breeden, 532 u.S. 268, 274 (2001). In Breeden, the u.S. Supreme Court
held that the public employee could not maintain a Title VII discrimination suit based on either a
right-to-sue letter issued by the Equal Employment Opportunity Commission based on the

15 Here, the City accuses the Plaintiffs of a "false allegation." [Doc. 52 at 13 n.6]. However, the
Plaintiffs have never argued the mortgagee did not know of the dispute with the City. Rather,
because of the Plaintiffs' public appearance, the City contacted the mortgagee and convinced it
not to renew financing. In documents the City placed in the record, the City admitted to at least
one conversation with the Plaintiffs' mortgagee. [Doc. 53-19 at 177.] Based on the posture of
that case, the court limited the Plaintiffs' counsel from further inquiring into the conversation.
12
Case 1:13-cv-23620-CMA DOCUOlent 91 Entered on FLSD Docket 08/31/2Q14 Page 1 of 1

IN THE UNITED STATES COURT


SO·UTH.ER.N IlISTRICrr O.F .FLO.RIllA

·RO.llEISEN.BE·RG, and .EIS.EN··8E.RG


.DEV.ELOPM.ENT CORP., a Florida
Corporation, d/b/a SADIGO CO'URT Case No.: 1:·13-cv.:.23620~CMA
APARTMENT HOTEL,

Plaintiffs,

vs.

CITY OF MIAMI BEACH,

Defendant,

PLAINTIFFS' NOTICE OF WITHDRAWAL WITHOUT PREtJUDICE OF


ALLEC;A TION IN COlVIPLAINT

Plaintiffs., Rod Eisenberg and Eisenberg Development Corp. ("Eisenberg Development"),

by and through the undersigned counsel, hereby give notice that they \vithdra\v vvithout prejudice

the allegation in paragraph 38 of their (~omplaint in this matter., as set forth below:

38. Based on information and belief., the (~ity Fire M.arshal had told Sadigo Court's

Inortgagee that the Plaintiffs were operating Sadigo Court as an illegal hotel.

CERTIFICATE OF SERVICE
I HER.EBY CERTIFY that on August 31,2014, I electronicaHy filed the foregoing with
the Clerk of the C:ourt by using the (~M/EC:F systenl which will send a notice of electronic filing
to the parties of record.
By: Is/Jacob T. C~relner
David Slnolker, Esq., (FB #349259)
davids(il.:;smolkerbartlett.com
Ethan J. Loeb, Esq. (FB #0668338)
ethanl(il.:;sB1.o1kcrbartJett.com
Jacob T. Cremer, .Esq. (FB #0083807)
iacobc(~l)sn)ol.kerbartlett.com
500 East .Kennedy Boulevard, Suite 200
l'alnpa, Florida 33602
Phone: 813-223-3888 I Facsitnile: 813-228-6422
(~ounsel,forPlaint(ffs
IN THE UNITED STATES COURT
SOUTHERN DISTRICT OF FLORIDA

ROD EISENBERG, and EISENBERG


DEVELOPMENT CORP., a Florida
Corporation, d/b/a SADIGO COURT Case No.: 1:13-cv-23620-CMA
APARTMENT HOTEL,

Plaintiffs,

vs.

CITY OF MIAMI BEACH,

Defendant,

RESPONSE OF PLAINTIFFS' FORMER COUNSEL AND LAW FIRM


TO DEFENDANT'S MOTION FOR SANCTIONS
David Smolker, Ethan 1. Loeb, and Jacob Cremer ("Former Counsel"), along with their
law firm Smolker, Bartlett, Loeb, Hinds & Sheppard, P.A. (the "Firm"), I who formerly
represented the Plaintiffs Rod Eisenberg and Eisenberg Development Corp,. file this response to
the City of Miami Beach's Motion for Fees and Sanctions [Doc. ~ (the "Motion"):
I. Introduction

Ultimately, the City has forgotten that "Rule 11 is not a toy," and that "[u]nfounded
accusations of professional misconduct are as serious and as worthy of sanctioning as the
misconduct alleged." Gaines v. Robinson Aviation (RVA), Inc., 2014 WL 6882934, at *8 n.6
(M.D. Fla. 2014) (declining sanctions).

1 The Finn was formerly known as Smolker, Bartlett, Schlosser, Loeb & Hinds, P.A. and
recently changed its name after the passing of name partner Richard A. Schlosser.

Page lof23

AmRFA11 att001
88005558
fact, has already advised the City that its previous motion for sanctions was filed prematurely-
only two days after the briefmg of the City's motion for judgment on the pleadings-and only if
that motion were successful could it renew its Rule 11 motion. [Doc. 70]. This is an improper
multiplication of the proceedings, especially in light of the Court's previous instructions.

Second, the City misleads the Court by failing to disclose that the Plaintiffs withdrew one of the
allegations that the City objected to most strenuously in its original motion. [Doc. 91 (filed
August 31, 2014)].10 The City had objected that the Plaintiffs' allegation, on information and
belief, that the Fire Marshal told the Plaintiffs' mortgagee that the Sadigo Court was an illegal
hotel was not true. In pre..suit investigation, counsel had learned that the Fire Marshal had
previously testified under oath that she had talked to the Plaintiffs' mortgagee. See _. The
Plaintiffs received discovery from the mortgagee in late July and early August. In mid-August,
the Plaintiffs confirmed that they would withdraw the allegation because even though true, the
Plaintiffs could not locate any evidence of the timing of the Fire Marshal's statements, and they
did so shortly thereafter. See _, [Doc. 91].

Third, the City maligns the Plaintiffs' counsel by accusing them, without any evidence, of having
a philosophy of pursuing frivolous litigation. Mot. at 7. Such character attacks can themselves be
worthy of an award under Rule 11. See Vanliner Ins. Co., 2014 WL 1632181, at * 1.

Finally, the motion has technical deficiencies. Not only is it combined with another motion (a
motion for attorneys' fees against the Plaintiffs), but it also attempts to circumvent the Court's
page limitations by filing a full 20-page motion and incorporating by reference the entirety of a
previous _-page motion. See Abreu, 2012 WL 4369734, at *10 (discussing rule's requirements
of bringing motion independently); Mot. at 13 n. (incorporation of previous motion).

When taken together, these problems show that the City is willing to disregard the rules of
procedure and authority on sanctions, all in an attempt to get retribution after winning. As the
Third Circuit has warned, Rule 11 "is being perverted when used as a tool for harassment rather
than as an instrument to prevent abuse." Gaiardo v. Ethyl Corp., 835 F.2d 479, 484 (3d

10 The Plaintiffs made this allegation "on information and belief."

Page 12 of23

AmRFA11 att012

88005569
Cfise: 1:13-cv.. 23620-CMA DocutTlent #: 206 E,ntered on FLSD Docket: 06/23/2015 Page 1 of 8

UNlrrF:I.l ST A'"'J1:S IJIS'rRI(:1~ (:()UR1'


S()U]~ll'J.:RN I)IS~rRIC'r ()Ii' )1'l,,()I{II)A
lVIIAIVIIIlIVISI(JN

I~ISf:NB~:R(; Ill~:VJ1:I.J()I)MF:N'l~
<.:C)RI)., el al q

Plaintiffs;
v.

CI'fV ()}i~ l\tIIAMI IJJ~ACH,

Defendant.
----------_._._-_.~-_/
()RI)I~R

rrl11S (~J\lJSI~ canlC bef()fC the C~()urt upon l)ctcndant, (,~it.y of Mianli 13each's'

r~Cityl" SO)") M()tion for E~ntitlell1enl to l~'ccs, (:osts~ and Sancti()l1s ... r~rv1{)lit)n~') [[~(.~,I~' No. 189 J,

flied April 15, 2015. Pla.intiff~ I'~isenbc~~g IJcveloplncnt C:orp. (~~r~1)(o1~~)~ Hied its l~csponsc.;

r~[-:.I)(: }{esp.") (,EC,F No. 20().l on May 15, 2()] 5; and I)laintifL Rod l:iscnbcrg ("I:isenberg"),

filc(i his pro sci I{csponsc ('~I~ise·nbcrg J~esl).~') I:E,Cr: No. 2041 on June 4, 2015. The City filed

its Reply on June 15, 2() 15.

l)laintiffs filed thi.s suit as the last of several act.ions taken bcf()rc adlllinistrutivc boards

and the state trial and appellate C()Ults to ~'·:avoid conl})lying \Vit.llBuilding and f~'ire (:odc

requircIllcnts their !Jroperty, the Sadigo (~~ourt Apartl11ent FI<Jl.c.J (HSadigo'~)~ inst.all fire SIJrinklcrs

before operating as a hoteL 'I'he bases t()f the (=·ourt" s subjcc.t J.l.lattcr jurisd.iction w'ere purported

Equal l)rotecti()n, f;irst Alllcnd.rnent., and l)ue Process claiIlls Plaintiffs creative'ly presented

following their unsuc.cessful {)(lyssey thrclugl'l the n'luny adnlinistrativc boards Ulld state courts.

}11ailltiffs were equaUyunsucccssful here. 'Jlhe City Il()W seeks rec.overy ()f it.s fees and costs

I According to the c'ty, Eisen'berg has a hl\\>' degree. (S(!e C:ity of Mialni Beach's Reply in Support of its.
Motion ... ("Reply") [EeF No. 205 J 5).
,'·1:13-cv-2362Q·CMA Document #: 206 Entered on FLSD Docket: 06/23/2015 Page 6 of 8

CASE NO~ 13-23620-CIV-ALTONAGA

Plaintiffs prosecuted t.heir Equal Protection clail11 without any factual basis al1d itl

cO.ntrave11tion of controllil1g law. The City is entitled to recover its fees ill havitlg .had to defend

this grou.ndless claim.

B. Count II _. First Amendment Retaliation

This claim withstood the City's nl0tionspredicated UPO!l tile pleading alOtIC on tIle

factual allegations (1) t~;e,Ci~y told Plaint ifIs, nlort.gagee the Sadigo was operating illegally; al1d

(2) Plaintiff$...{efus~d, ,to pay the.Ci.ty a bribe, resultillg in Eisenberg~s arrest during a City

showed tbe.l~nder. was well aware' of the issues surround.itlg .the unlawful hotel operatiol1s. of the
~.

S digo through Plaintiff .' very own correspondence with the Jel1der,. and the City employee who

al.l~ .~ .Y:::;" .... li9lteq.. tl,·..,Q jbe froffi . .Eis.enberg wa~ a'wayon vacation at Jlle.tinle the attempted bribe

was com.muni¢ated.'i.. This claim survived until Summary Judgmcllt.; wherein the Court fOlltld

Plaintiffs h.nd failed to show allY evidence of a policy or custoln of retaliat.ion for engagin.g in

protect.ed speech~ (t..f)ee Dec. 1.6 Order, 9).. ;J~llli~itJ$;;·~e;.:;'~e,p$nSib:le:.·fol~·/the·,·:;Cjty~~::_ fe·es t"lIder

·m.····· '. ?circumsi.~~e~~,;~~! SeeNi~}el'lb'lUll1 .v. Milwaukee en 0'. , 333 F.3d 804, 808 (7th Cir. 2()03)

(reversing denial of attorneys' fees und.er section 1988 where plaintif:I brought First Amcl1dIllcIlt

retaliation claim but failed to allege a discrimin.3tory Cllstoln or policy under M()nell); Torres v.
, '~f
Cil)} of O,lafldo, 264 F. Supp. 2d .1046, lC)52 (M.D. Fla. 2()03) (granting fees u.nder section 1988
./}

because '~f'~··~i··I;'ifttifr"·!,:c·,':·e:::'wa';factually"'811d"leg'tllly'; grou: .. les$'at·th:··:o"tset'.~:;,{a tera ~ion ·add· d;

footnote call nUMber :o,mitted»);

c. Counts III and IV - Due Proce~ Claims

~iffj':11'ill>ue,;;,Brocess,c.laimssurVived.ionthe"basi5·o~fthesame,.twoi';
i~<':i~c,t\la4

all ~9;~;'~It'~~See Mar. J Order, 25 ("Based on these allegations, it is plausible the

6
, 1:13-cv-23620...CMA Document #: 206 Erltered on FLSD Docket: 06/23/2015 Page 7 of 8

(~/\Sli N(). t 3-23620-C;IV -/\lJrr()N/\GA

(~ity"s actions were lUldct1.akcn \vith ,U1 inlpropcr 1l1olivc and \VCIC an abuse of discretion."»).

Yet" judglnent ()tl the pleadil:gs was later ent.ered on 111ese clainls given the C·ity~s enforcenlent

did not affect the gCllcraJ population. (~\lee Sept. 19 ()rdcr~ 15·~·20). A~Lwith Count JI~ CO'tllts 111

a 'ld IV were. ~ )und.·d OIl fals' 'allegations, and the (~ity is e.n.titlc<i to the fees and C{)st.s incurred in

havblg .had to defend' :thenl~.

I). C()unts V, VI, and VII.......-. St.at.e !..iU\\' ulld ])cclar11tor)1 Jlldgment Cluims

(~ounts V and VI raised. friv()!()US state lavl clain1s the c.:ourt dislllisscd. C\'ee Mar. 3

OIlier). TIle (~ol1rt disnlissed tIle claiu1s ()tl t,he basis ()f the state st.atutes I)luintiffs PUrp(.)rled to

rely tlpon~based 'on tll:e pl.a:in 'la'nguageof those Sl2llutes'l (S~ee id. 26--,3(». "rhe (~ourt docs not

repeal the pcrti11ent. discussion here. Suffice it to say, 11,()thin.g l)la,intiffs slate in their prc,sent

R·esp()nses persuades Ule Court t.he stflte~law c'laitns were not I)atclltly frivol()us.

C:ount VII sought a ;;itdcclarat()ry judgrncnt C(Hlstruing the parties' .rights and obligations.

(C()IllPl. ~[<j[ 111'-"'.19). 'l'he C()UJt disI11isscd this last COUtlt., stating the ~-equitablc relief [)laintilTs

seek is a rcnledy~ 110t a separate cause of action.'" (Mar. 3 ()rdcr. 31 (citing cases)). f>laintiffs

offer Il() argunlent regarding t.he Illcrits \)f t.his claint,

The fire sprinklers the City has been (lc'lnanding of the Sadigo \\loul.d have C()st between

$2(),()O() and $l()(),()()()~ CS{~l! M()t. 54 n.7). rrhe Sa(ligo o))crat.ed in unlawful, sprin.klerlcss hot.el
'!
()pcrati()11S through()ut In()st ()f this litigati()ll. rrhc, (~ity l~~cpeatedl y 'placed Plaintiffs on notice of

the groundless and friv()l()us cJainls they \vcrc advancing in this fc(leral la\vsl.lit even filing the t

nl0tion f()f I{ule I J sancti()ns ~'hilc theI\t1.()t.ion for Judgl'llCnl on the I.)'tcadings \-vas pCl1tling. All

of Plaintiffs~ c.laims lacke(i nlcrit {)f f()undati()n; t.he C:ity inf()rtllcd Plaintiffs of the ('alai defects