MIAMI MIRROR – TRUE REFLECTIONS

THE FLORIDA BAR

PASTIES AND THONGS
What Is The Florida Bar Hiding? March 28, 2012 THE MIAMI MIRROR by David Arthur Walters MIAMI BEACH—The Florida Bar has dismissed an inquiry filed on March 3, 2011, by South Beach strip club owner Leroy Griffith against Miami Beach Commissioner and attorney Michael Gongora. Griffith has been struggling for years to obtain a liquor license for his Club Madonna on Washington Avenue. Thus far the Commission has not approved of liquor being sold around plumb-naked females, which has prompted Griffith to file a series of complaints against city officials. I retrieved the Bar file before it was destroyed, as per the record retention policy of the Supreme Court of Florida, along with any record that it even existed. The files on dismissed inquiries are destroyed one year after no probable cause for discipline has been found. During that year, no
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record that an inquiry has been filed and is being investigated appears anywhere, and the public is not notified when inquiries are dismissed, therefore it is highly unlikely that the general public will know about it before it is too late to retrieve the file. Once inquiries are dismissed, nothing is posted to the attorney‟s online Florida Bar page to indicate the existence of complaints. This destruction policy makes it nearly impossible for consumers and Florida Bar officials to see if officers of the court, unlike officers of the law, may be involved in a pattern of misconduct that has not been properly addressed despite numerous complaints, and it can also conceal inappropriate behavior of Florida Bar staff and officials. I contacted Gongora on February 27, not to question the dismissal of the Florida Bar inquiry but to get his opinion on the Florida Bar‟s records retention policy: “I would like your opinion as to whether you agree with the present Bar policy, or if you believe more transparency is needed in respect to dismissed cases. For example, a list of cases might be kept on the Bar site, indicating the nature of the complaint, its date, and whether and when it was dismissed or discipline imposed. The primary documents would be available by simply clicking on the relevant hypertext, the former for one year, and the latter for ten years - and I would go farther and change the one-year administrative rule to five years. I would have monthly releases to the press on all dismissals and disciplinary impositions.” “When first asked by various members of the press after Leroy Griffith filed the Bar complaint,” he replied, “I said that it was „groundless‟. I was confident that the Bar, in their infinite wisdom would totally exonerate me of any of Griffith‟s charges. I‟m pleased that my confidence was well-based.” Since he did not answer the question posed, and instead mentioned the Bar‟s “infinite wisdom,” I decided to take a closer look at the file the Bar sent over to me pursuant to my public records request. A review of press reports indicates that Griffith‟s complaints are deemed vexatious or completely without merit by the likes of City Attorney Jose Smith, against whom Griffith also filed an inquiry with the Bar. Yet Griffith does have some cause to believe justice is being perverted inasmuch as the sale of liquor for several hundred dollars per bottle is permitted at other salacious joints on this sleazy beach of ours; with the small difference, however, that pasties and thongs cover parts unmentionable in polite company except in clinical terms. Indeed, Mayor Matti Herrera Bower referred to proctologists and gynecologists when she drew the line against liquor sales at Club Madonna. On the other hand, Griffith obviously believes that the private parts of city officials should be carefully examined to see if they are turning dirty tricks. For example, Griffith filed a complaint with the Florida Elections Commission, asserting that Griffith gave Gongora four checks in 2009 totaling $3,000, but Gongora allegedly pocketed the money and did not report it as a campaign contribution. He attributed the fault to an oversight, and paid a $2,000 fine in July 2011. Griffith averred under penalty of perjury in his Florida Bar inquiry that Griffith and his public relations manager, Carl Zablotny, met with Gongora and his campaign manager, Randy Hilliard, on July 12, 2010, and that Gongora promised to advance his cause with the City Commission provided that he hired Hilliard to poll the commissioners on where they stood on the issue.
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Wherefore Griffith supposed Gongora might have committed an extortionate act, and asked the Bar to make the inquiry. He did not assert therein that Gongora may have violated Florida‟s Sunshine law, perhaps attempting to circumvent it by using an intermediary to discuss a public matter privately. Griffith supported his sworn state with an affidavit from Zablotny: “I, Carl Zablotny, affirm that I was present during a meeting at approximately 2 p.m. on the 12th day of July, 2010 between Leroy Griffith (owner of Club Madonna) and Miami Beach Commissioner Michael Gongora. Also present at that meeting was a well-known Miami Beach lobbyist, Randy Milliard. I affirm that Leroy Griffith informed me that the subject of such meeting was to ascertain that Commissioner Michael Gongora was going to bring up the issue of serving liquor at Club Madonna as Commissioner Gongora had previously promised Mr. Griffith. I also affirm that I was present during several meetings - including one in Mr. Griffith's office and one in Commissioner Gongora's office - at which Commissioner Gongora promised Mr. Griffith that he would definitely bring this issue before the commissioners, but he had not done so for more than six months. The presence and purpose of Mr. Milliard at this luncheon meeting was unknown to both Mr. Griffith and myself. “I also affirm that on June 9 during the commission meeting that I personally spoke on behalf of Mr. Griffith's proposed ordinance after which Commissioner Gongora congratulated me and promised that he would "definitely bring up the issue at the next commission meeting, no matter what." The next commission meeting was scheduled for July 14 and that was the reason for the meeting with Mr. Gongora scheduled for July 12. During the luncheon meeting of July 12, I affirm that Mr. Gongora presented Mr. Griffith with a proposal. Mr. Gongora said that he needed to do more "research" as to where other commissioners stood on the issue He wanted Mr. Griffith to hire Mr. Milliard to do that research. “A heated argument ensued during which Mr. Griffith informed Commissioner Gongora that he didn't need any further research and would not hire Mr. Milliard. Commissioner Gongora abruptly stated that if he did not hire Mr. Milliard, he would not bring up the issue and that this was the end of the discussion about Club Madonna. I affirm that Mr. Griffith did not hire Mr. Milliard and subsequently Commissioner Gongora did not bring the issue before the Miami Beach City Commission. “At the July 14th meeting of the city commission, I affirm that I spoke during the open-forum "Sutnick Hour" in favor of Mr. Griffith's situation and stated that I was appalled by Commissioner Gongora's behavior just two days previous to this commission meeting I informed the commission of the Randy Milliard incident with Mr. Griffith and that Commissioner Gongora tried to get Mr. Griffith to hire Mr. Milliard in exchange for just bringing up the amendment issue before the commission I was then chastised by the mayor, Matti Bower, for bringing Commissioner Gongora into the conversation about Mr. Griffith's concerns. Mr. Griffith's issue was never discussed again.”
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Confronted with two sworn statements against him, Gongora did not respond to the Bar under oath but had his attorney, Patricia S. Etkin, write an unsworn statement to the Bar, dated April 26, 2011: “This will confirm the appearance of the Law Office of Patricia S. Etkin, P.A., as counsel for Michael Christian Gongora. In compliance with Rule 3-7. l(f), Rules Regulating The Florida Bar, enclosed for your file is the Certificate of Disclosure executed by Mr. Gongora. “Background “As indicated in Mr. Griffith's complaint, he is the owner of Club Madonna. Club Madonna is located in the City of Miami Beach and features entertainment by female dancers who display total nudity. Because the Miami Beach City Code prohibits the sale of alcohol in an establishment where total nudity is displayed, alcoholic beverages cannot be legally sold to customers of Club Madonna. For this reason, beginning in 1999, Mr. Griffith has doggedly pursued an agenda to persuade the City Commission of the City of Miami Beach ("City Commission") to adopt an ordinance amending the pertinent provisions of the Miami Beach City Code, thereby allowing clubs such as Club Madonna to sell alcoholic beverages and provide totally nude entertainment ("ordinance amendment"). “Mr. Griffith has been unsuccessful in his ongoing efforts to obtain City Commission approval of the ordinance amendment. Clearly frustrated by this lack of success, Mr. Griffith has utilized a multitude of forums to lash out against those City officials whom he perceives to have thwarted him from achieving his objective: selling alcoholic beverages and providing totally nude entertainment. Mr. Gongora is the latest victim of Mr. Griffith's ire. “Preliminary Statement “A significant portion of Mr. Griffith's complaint sets forth events that occurred in 2004 and 2005 and reflects his perception of unfair treatment by the City Commission. However, Mr. Gongora was not a member of the City Commission in 2004 and 2005. (1) Moreover, the only allegation made by Mr. Griffith regarding Mr. Gongora's actions in his capacity as a City Commissioner occurred in July 2010, during a luncheon meeting. “Response “Mr. Gongora was not morally opposed to allowing the sale of alcoholic beverages at nude entertainment establishments like Club Madonna. However, he was well aware of the history of strong opposition to the ordinance amendment within the City Commission. He was also well aware of the concerns of the local community. Before committing to supporting the ordinance amendment, Mr. Gongora attempted to ascertain the current sentiment of the City Commission. He did so on April 30, 2010, during the City Commission Retreat as confirmed by the minutes:
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„Commissioner Gongora asked if there was any interest in revisiting Club Madonna and the issue of nudity and alcohol. A discussion was held and it was decided that at this time there is no interest in pursuing this. As part of the discussion, Vice-Mayor Libbin stated that the nudity and alcohol law needs to be applied equally with all establishments on Miami Beach.‟ “Notwithstanding the lack of City Commission support, Mr. Gongora remained amenable to further consideration of the ordinance amendment. During the openmike/citizen's forum portion of the City Commission meeting that occurred on June 9, 2010, Mr. Griffith's employee, Carl Zablotny, attempted to raise the Club Madonna issue. Although Mr. Gongora commented in favor of revisiting this issue, further discussion was curtailed by Mayor Bower until such time as a City Commissioner placed the issue on the agenda of a City Commission meeting. “The next City Commission meeting was scheduled for July 14, 2010. Mr. Griffith requested a meeting with Mr. Gongora prior to the July 14, 2010, meeting of the City Commission. On July 12, 2010, Mr. Gongora met with Mr. Griffith at a local restaurant. Also present were Randall Hilliard and Mr. Zablotny. During this meeting, Mr. Gongora stated that he did not believe that the ordinance amendment had City Commission support. In an effort to generate support, Mr. Gongora suggested that Mr. Griffith undertake remedial measures that would ameliorate the perceived negative effects caused by Club Madonna. Mr. Gongora specifically suggested removal of the loveseat that was placed outside Club Madonna where scantily clothed female entertainers lounged to entice customers to enter the club. Mr. Griffith became incensed at this suggestion which he considered to be an assault on his property rights. The meeting ended abruptly on an angry note. “Mr. Gongora denies the allegation that his support of the ordinance amendment was conditioned upon the hiring of Mr. Hilliard to conduct "research" and asserts that there was no "attempted extortion." Mr. Gongora's "silence" during the City Commission meeting on July 14, 2010, is not evidence of an "unsuccessful extortion attempt"; Mr. Gongora's silence merely evidences a decision not to champion the ordinance amendment which was destined to fail, particularly when Mr. Griffith refused to consider reasonable remedial measures. “Mr. Griffith's frustration in failing to garner City Commission support for the ordinance amendment is clearly manifested in this complaint as well as in Mr. Griffith's long history of pursuing punitive action against other City of Miami Beach officials who have not supported the ordinance amendment. Significantly, Mr. Griffith is not a client; he is a constituent. The Florida Bar should not permit its disciplinary system to be utilized by disgruntled constituents either as leverage to gain support for a legislative position or as retaliation when a legislative position is not supported. “Mr. Gongora's decision not to sponsor the ordinance amendment had a proper basis and did not involve any violation of the Rules of Professional Conduct. Accordingly, The Florida Bar's file in this matter should be closed.
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“(1) Mr. Gongora served as a member of the City Commission during the following periods: November 2006 to November 2007; November 2009 to present. Griffith objected to the attorney‟s statements on May 3, 2011, saying that her response did not address the extortion, adding that he “did not request the meeting and did not know the purpose until it happened.” He concluded with, “Please see the attached Affidavit,” referring to the Affidavit filed with his Bar inquiry. On September 2, Tonya L. Avery, Bar Counsel, and Tonya J. Meister, Chair of the Eleventh Judicial Circuit Grievance Committee F, laconically concurred in a finding of no probable cause: “Pursuant to the provisions of Rule 3-7.3(d) of the Rules Regulating The Florida Bar, the undersigned, by their signature on this report, signify their concurrence in a finding of no probable cause as to the referenced complaint. Pursuant to the Bar's records retention schedule, the computer record and file will be disposed of one year from the date of closing.” On November 7, Avery notified Griffith of the finding: “Enclosed is a Finding of No Probable Cause from the Chair of the Eleventh Judicial Circuit Grievance Committee F and undersigned counsel concerning the above-referenced file. This letter does not constitute a disciplinary record and a copy has been furnished to the Respondent. “This file was referred to our office based on your allegations that as a Miami Beach City Commissioner, Mr. Gongora agreed to bring a specific matter to the attention of the commission, regarding the serving of alcohol at Club Madonna, on the condition that you hire a lobbyist friend of Mr. Gongora‟s. Having carefully reviewed this matter, the Bar and Chair finds there is insufficient evidence to establish that an ethical violation has been committed in that no independent evidence has been obtained or provided to corroborate your allegations. Therefore, we find no probable cause. “The forwarding of this letter to you concludes disciplinary proceedings in this matter. Pursuant to the Bar‟s records retention schedule, the computer record and file will be disposed of one year from the date of closing.” Having reflected on the Bar File, something seemed to be missing from the picture. Most importantly, a sworn statement from Hilliard would be needed to arrive at a 2-2=0 stalemate, assuming that attorneys actually embody the high standard they are supposed to be held to hence do not have to render sworn statements.i Perhaps the secretive grievance committee received grounds supporting the impeachment of the two sworn witnesses, or maybe in its “infinite wisdom” resorted to a system to weigh the relative veracity of witnesses; say, strip club owners not convicted of perjury get 20 points, their public relations managers get 10; but attorneys get 50 points, or 100 if they are represented by an attorney, and 30 points are deducted if they are politicians, and nothing added or subtracted for campaign managers since they get 0 hence do not have to testify: Gongora would win the credibility contest, 70 to 30.
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Since I did not want to leave such a grave matter to my imagination, I asked Avery on March 2, 2012, if there was more to the Bar investigation that what appeared in the file: “I have examined the public file and there seems to be something amiss, perhaps a missing grievance committee report detailing its inquiry or explaining its finding, and missing testimony from a witness. The only grievance committee document I received is a terse statement from its chair person finding no probable cause, with no explanation of the finding whatsoever, leaving the file as it stands casting the Bar procedure in a rather bad light, so I am checking with you prior to filing my own report. “Your September 7, 2011 letter, notifying Mr. Griffith that there was no finding of probable cause by the grievance committee, states that the finding was made because there was no independent evidence submitted to corroborate his claim that Mr. Gongora committed a extortionate act during the July 12 meeting had with Mssrs. Griffith, Zablotny, Gongora and Hilliard attending. “However, the Bar file includes an affidavit sworn to by Mr. Zablotny witnessing that the extortion complained of did in fact take place at the meeting between the four persons. “I understand that the inquiry/complaint filed by Mr. Griffith, making the same allegation, is considered sworn to under penalties of perjury. Therefore the Bar had two sworn statements to the effect that an extortionate threat was actually made at the meeting. “On the other hand, Patricia S. Etkin, answering the Bar‟s inquiry for Mr. Gongora, said no such event took place, and gave a description of events that contradicted the Griffith-Zablotny account. I notice that Ms. Etkin did not submit a sworn statement from Mr. Gongora to that effect. “It would seem that the sworn statements of Mssrs. Griffith and Zablotny would carry more weight than the unsworn statement of Mr. Gongora made through his lawyer; but no, the decision seems to be in favor of the weaker side. “Is there some rule of evidence that would give Ms. Etkin‟s representation of what her client said to her preponderance over the sworn testimony of two witnesses? I would like to include that rule or principle in my report. “And surely the public will need to know if the word “independent” in your letter, in regards to the want of evidence, implies that the grievance committee and its chair presumed that Mr. Zablotny conspired with Mr. Griffith to lie about facts simply because he has a business relationship with him. Is that true? Is it a rule of law? “I think anyone would better understand the committee‟s finding of insufficient evidence if it were a case where two witnesses said one thing and two other
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witnesses contradicted them, providing they were all sworn. I see no sworn statement from Mr. Hilliard or any information whatsoever that he was conferred with on the matter and denied the Griffith-Zablotny account and affirmed the Gongora account of events. Please send along that documentation. “Your assistance is deeply appreciated. Avery‟s response was as laconic as her finding of no probable cause: “In response to your Public Records request, we have provided you with a copy of the entire public record portion of our file.” In other words, the inquisitors at the self-regulating Florida Bar have no duty to explain their conduct other than to provide the superficial public record. And that leads a lot of people to wonder what is under its pasties and thongs. As far as the Bar is concerned, the less said about some things the better. ##

i

A report by Jeffrey Bradley published March 31, 2011, by SunPost states that Hilliard appeared before the City of Miami Beach Commission (date unspecified), where he admitted that the meeting between Griffith, Zablotny, Gongora and himself took place, but claimed that Gongora did not tell Griffith to hire him.

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