The City of Miami Beach Can Do No Wrong

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Neither can the Miami-Dade County, The State of Florida, and the United States.

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MIAMI MIRROR – TRUE REFLECTIONS
SERIES: The Fire Sprinkler Case

Philip Levine, the current Mayor of Miami Beach

THE CITY OF MIAMI BEACH CAN DO NO WRONG
Neither Can the County, the State, and the United States
March 10, 2015
MIAMI MIRROR
By David Arthur Walters
Rod Eisenberg is thoroughly intimidated in respect to his constitutional right to free speech. The
legal system has potentially cost him $4,000,000 for his refusal to install $70,000 of fire
sprinklers in his building. No, sir, he is not talking about his humiliating defeat at the hands of
local federal judge Cecilia M. Altonaga, who said that the City of Miami Beach would not liable
for violating his civil rights because it did not make the policy requiring fire sprinklers in his
historic thirty-apartment Sadigo Courtyard Apartment Hotel, which had been housing
transients without them for seventy years.

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MIAMI MIRROR – TRUE REFLECTIONS
Of course the Sadigo, which sits in a medium intensity commercial district near the beach, was
not the only hotel apartment building on the beach accommodating tourists and vacationers.
Miami Beach has been famous for short-term rentals for many years, especially the so-called
South Beach area where soldiers were housed during the war in the barracks-like hotels, and it
is no secret that landlords of buildings and condominium owners in residential districts have
always been more than glad to let out apartments for a few days or weeks to visitors from all
over the world.
As Miami Beach, once known as a poor man’s paradise, became more popular and
stereotypically greedy developers arrived, relatively permanent residents raised a clamor about
traffic and noise. Transient rental apartment and hotel usage would be zoned out in certain
low- and medium-density multi-family areas, notwithstanding exceptions grandfathered
therein.
The very fact that the city had passed special ordinances zoning out transient apartment
buildings in low-density residential multifamily districts with the exception of those buildings
that could prove they had been using their buildings for short-term rentals, had them
registered with the state as transient apartment buildings, and had been paying local resort
taxes all along, demonstrates not only that the city had permitted them to conduct business as
such, but also supports the proposition that the city was indeed the policymaker over their use
contrary to the opinion of Justice Altonaga dismissing Eisenberg’s case.
Those qualifying buildings within the Espanola Historic and Flamingo residential districts, for
example, were required to obtain new certifications for current use by January 2011, and that
would require compliance with Florida’s fire safety codes, which provides that sprinklers do not
have to be installed in smaller buildings, and equivalent systems can be substituted in larger
buildings of three stories or more.
However, not only had the Sadigo been licensed by the state as a transient apartment building
regularly inspected by fire inspectors, and not only had Eisenberg been paying resort taxes, the
Sadigo is in a commercial district where hotels and apartment hotels are indeed allowed by
local zoning ordinances, wherefore no special zoning with grandfather clause was made nor
was it needed there. Indeed, no uniform law could be found in the local ordinances that said
sprinklers must be installed without exception in the historic buildings in that commercial
district by a certain date.
However that may be, certain state fire code provisions adopted from national standards
exempted small historical buildings, and any safety system “equivalent” to fire sprinkler
exception was made for larger historical structures. Local authorities have considerable latitude
to determine what sort of system is “equivalent” to automatic fire sprinkler systems, thus
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MIAMI MIRROR – TRUE REFLECTIONS
appeals to the county board are most likely futile; there again local policymaking authority is
apparent. The Sadigo has three stories, so Eisenberg insisted that if he were required to meet
the standards, which he really should not have to do in his commercial district, then he could
have some equivalent fire safety system that would not damage the historic characteristics of
the structure.
The fact of the matter is that scores of transient rental apartments without short-term rental
certifications operate in the city under the radar with impunity until someone complains or
they are tagged at random. For instance, Eisenberg’s old school chum, Scott Robins, a powerful
political figure, ran his 12-unit Espanola Way Suites upstairs on the top two floors of his building
on Espanola Way for several years, and paid no resort taxes, even after his application for
transient apartment usage was declined, until someone he alienated publicly blew the whistle
on him in late 2014, finally causing officials to act or be embarrassed for negligence.
“Why me?” Eisenberg must have asked when officials declared the Sadigo must have
sprinklers. The answer came to him in a flash. He had a grudge against the Good Old Boys, and
had been a pain in the ass to officials for fifteen years, ever since his bid for space at the old city
hall was rejected, as submitted too late, in favor of a party who was getting free rent there. He
was always complaining about their corruption and negligence, and suing them and their city in
vain on several occasions. Heaven forbade it, but he had even interfered with the sweetheart
deal that resulted in the city’s flagship convention hotel, the Loews Hotel, and had opposed the
favorable tax treatment of the convention center district as a completely unnecessary boon to
the Good Old Boys.
Shortly before the Sadigo was red-flagged, he raised a stink about the blighted building next
door, owned by an influential hotel developer. And then, alas, he designated a room at the
Sadigo to prepare cold food. The city said the room was a restaurant, and claimed that the
transient apartments, which by definition already had cooking facilities, had now become a
brand new hotel requiring sprinklers, thus, in a way, admitting that his “hotel-apartment”
building was permitted for transient rentals as an apartment building. Wherefore, after a bribe
was allegedly solicited to overlook the modern defect, the fire marshal considered the structure
to be in “imminent danger” due to the cold food and issued a cease and desist order.
“Imminent danger” is specified by the city’s Code of Ordinances 50-11(i) as prerequisite to
issuance of a cease and desist order. We may suppose that Jews and Muslims should beware
especially of the ham sandwiches with kosher dill pickles inasmuch as they may self-combust
when consumed, converting people into human torches.
That was followed by a temporary closure, and then an eviction of tenants and complete shut
down, and the arrest of Eisenberg for obstructing the closure—he pled no contest to a charge
of resisting arrest without violence. He brought a federal suit against the city, asserting, under
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MIAMI MIRROR – TRUE REFLECTIONS
42 U.S.C. 1938 of the Ku Klux Klan Act of 1871, that the city had violated his civil rights under
color of law.
Judge Altonaga finally dismissed the case, saying she had to wash the city’s hands of
responsibility because the policymaking city was not the policymaker because Eisenberg could
have pursued appeals with county board; wherefore the city, whose charter identifies it as a
businesslike or fascistic corporation without any branches or separation of powers, is immune
by that qualification although corporations in the private sector are responsible for damages
done by their employees while at work. So now the legal system is potentially into Eisenberg for
$4,000,000 for his refusal to install $70,000 of fire sprinklers.
Will the real policymaker please stand up and be identified? If the city is not the policymaker
because its policy can be appealed to a county board that will affirm the local discretion to
make policy, the Eisenberg should have sued the county as policymaker, correct? But then
Altonaga would have to exempt the county because it is authorized by state statute to handle
fire safety issues for the state as dictated by the state, and local amendments to the fire safety
code must be at least equal to or more stringent than the state code, and have to be approved
by the state, so the city as well as the county enjoys qualified immunity because it is
theoretically not the policymaker as well.
All right, he could sue the state, correct? Well, Article III of the Constitution does not expressly
extend federal court jurisdiction over litigation between citizens and their respective states yet
it does provide jurisdiction over “all cases” involving federal issues. In Chisholm v. Georgia
(1793), a suit to collect monies owed by George to a citizen, the court held that citizens could
indeed sue their own states and other states.
That foreign states could sue states did not sit well with state politicians, therefore the Eleventh
Amendment (1795) was concocted and ratified to provide that a citizen of one state cannot sue
another state in federal court nor can a citizen of a foreign country sue a state.
And then the revered Supreme Court, citing the general principle of sovereign immunity in the
case of Hans v. Louisiana (1890), judicially legislated against allowing federal courts to entertain
suits by citizens against their own states without their consent.
No, the Eleventh Amendment did not actually say that, admitted the Hans court, but that had
to be what the ultimate sovereign, We The People, had meant, that their state governments
were sovereign or above the law, when the amendment was put forward by their federal
government and ratified by their state governments, for it would be “shocking” to say that a
citizen of one state could not sue another state but could sue his own state. And that does
seem rather shocking or logically absurd unless one accepts the implied analogy between a
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MIAMI MIRROR – TRUE REFLECTIONS
foreign state and a state of the union, purportedly sovereign until the Civil War sealed the
union forever in blood under a central government. Sovereign states will recognize their own
citizens in their courts but are not inclined to recognize foreign states.
The mistake of the Chisholm majority, said the Hans majority, was in being swayed by a close
observance of the letter of the United States Constitution to approve of something that its
minority said was not the custom and had never been done before, to repudiate the principle
of sovereignty, that rex non potest pecare – the king can do no wrong. We recall here that the
court in United States v. Thompson (1879) observed that “When the colonies achieved their
independence, each one took these prerogatives, which had belonged to the crown."
However, every fifth grader should remember that independence was declared because the
English king did in fact do wrong. Kings could be deposed and beheaded; therefore, it
behooved them to permit subjects to sue them peaceably by granting them petitions of right as
a formality. Anyway, the colonies cast off the crown and formed a more perfect union in a
written constitution, forged by, for, and of the people, unprecedented by cowering judicial
precedents.
The common law is not only case law; common law also comprises judicial interpretation of
constitutional and statutory law. Lawyers were destined to dominate life in the American
states. It did not take long for their Supreme Court to crown itself in the name of independence
from the other imaginary branches of government, abuse the will of The People in its
prejudicial interpretations of civil rights, and bestow sovereign immunity on all branches of
government.
As we wade through volumes of judicial opinions subverting justice over the years, we may
come to sympathize with the state of Jeremy Bentham’s statement in his Outlines of Judicial
Procedure, that “common-law judges, in different groupes - in some instances collectively, in
others severally -- (shared among them as they can agree,) possess and exercise a power of
making law- of making that which has the bad effect, without any of the good effect of law, ad
libitum, without any controul but that of a legislature, which is in league with them by a
community of sinister interest, and leaves to them the charge of exercising depredation and
oppression, in cases in which fear or shame would prevent its operating to that effect by its
own hands,” except that the American legislature does not have sovereignty as it did in England
in his time.
What the unconstitutional Hans judicial legislation meant, for example, in the case of debt, is
that if someone loaned a state some money and the state defaulted, the lender could not sue
the state for the balance unless the state first consented to be sued, which states would
eventually do in advance by way of legislation effectively waiving their sovereign immunity in
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MIAMI MIRROR – TRUE REFLECTIONS
respect to contractual obligations, for who would want to do business with a potential
deadbeat unless the courts had jurisdiction to order withdrawals from its treasury? Many states
and the federal government would eventually waive sovereign immunity in respect to noncontractual liabilities i.e. torts under certain circumstances. However, constitutional torts are
another matter, for whosoever controls the constitutional process controls the nation.
The Chisholm court, which was closest to the historical Constitution, did a good job of
recounting the history of sovereign immunity of the Kings of England as a tentative,
precedential common law source for prejudice in favor of authority in the newly united
American states. English subjects had to petition kings for the right to sue them, a process
called a petition of right. The petition demonstrated all due respect for authority and appears
to be courteously granted as a matter of course, thus permission to sue kings and queens was
one of several civil rights obtained. However, under Saxon governments prior to the reign of
Edward I, kings could be sued as common persons.
In Chisholm, Justice Iredell, whose reasoning provided the model for the Eleventh Amendment,
presumed that the common law of England was the basis of laws common to the American
states so was in force in America as it was in England to the extent not replaced by statutes.
Governors are not analogous to kings, nor are corporations analogous to the American states,
so ancient law does not apply, and neither does International law since states are not nations.
The Constitution is silent on the question. A new law is required to cover the case. The decision
of the court allowing citizens to sue states in federal courts for debts would constitute extrajudicial policy. His own predilection was against any such constructive interpretation.
The Supreme Court has never lacked minority dissenters on the question of sovereign
immunity. More recently, dissenting justices in Alden v. Maine (1999), referring to previous
dissent on the question in Seminole Tribe v Florida (1996), insisted that neither the Constitution
nor the Eleventh Amendment, which only expressly applies to diversity jurisdiction, actually
provides states with immunity from suits brought by its own citizens. The Framers did not even
mention the sovereign rights of states, and the issue of sovereignty per se was not an
immediate subject of debate at the constitutional convention. The colonies did not have the
sovereign immunity the new states claim to have inherited from the colonies; only the crown
had sovereign immunity. Nor did the new federal constitution establish sovereign immunity for
the confederated states. Sovereign immunity is not based on common law but on a theoretical
conception of natural law, restated by Alexander Hamilton but not accepted by the Framers,
and there is no ban on tampering with it or altering the conception since it is mere
presumption.
“There is almost no evidence that the generation of the Framers thought sovereign immunity
was fundamental in the sense of being unalterable,” pronounced Justice Souter for the dissent
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in Alden. “Whether one looks at the period before the framing, to the ratification controversies,
or to the early republican era, the evidence is the same. Some Framers thought sovereign
immunity was an obsolete royal prerogative inapplicable in a republic; some thought sovereign
immunity was a common law power defeasible, like other common law rights, by statute; and
perhaps a few thought, in keeping with a natural law view distinct from the common law
conception, that immunity was inherent in a sovereign because the body that made a law could
not logically be bound by it. Natural law thinking on the part of a doubtful few will not,
however, support the Court's position."
Justice John Paul Stevens, champion of a constitutional amendment that would expressly
renounce the falsely construed principle of sovereign immunity, provided mind-boggling
casuistry in Seminole that would allow a court to cite the Hans decision against the Hans
decision, as if the reasoning in Hans were incomplete inasmuch as precedent had not gotten to
the point that a court should presently make.
Now how does sovereign immunity appertain to the Eisenberg suit filed in 2013 in the United
States Court of the Southern District of Florida under Section 1983 of the Ku Klux Klan Act
passed by the 42nd Congress in 1871? That Section provides civil remedies against persons who
deprive people of their rights under color of law. It was passed before the Fourteenth
Amendment, which provides that Congress can make laws to enforce observance of the right
against government of due process and equal protection of the laws. The Supreme Court,
setting itself up as sovereign over Congress, in marked contrast to the hoary tradition in
England, until 2009, where Parliament was sovereign and the sovereign in his council sitting as
a final court of appeal in the House of Lords, declared that any legislation enforcing the
Fourteenth Amendment should expressly abrogate the sovereign immunity of states it
presumably implied from the Eleventh Amendment. So Section 1983 and other civil rights
statutes were left in the lurch, so to speak, a lurch being the gate of a church where coffins
were placed for pickup and transportation to the cemetery.
Lo and Behold that the Supreme Court holds that the Eleventh Amendment applies to Section
1983 claims against states and state entities because, in enacting the original version of Section
1983, Congress did not intend to abrogate the states’ Eleventh Amendment immunity (Quern v.
Jordan, 1979). Therefore, a federal court award of § 1983 damages against a state, state
agency, or state official sued in an official capacity is barred by the Eleventh Amendment
(Edelman v. Jordan, 1974) stating that “when the action is in essence one for the recovery of
money from the state, the state is the real, substantial party in interest and is entitled to invoke
its Eleventh Amendment sovereign immunity from suit even though individual officials are
nominal defendants” - quoting Ford Motor Co. v. Dep’t of Treasury, 323 U.S. 459, 464 (1945).
Even if a third party agrees to indemnify the state, the Eleventh Amendment still protects the
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state from a federal court monetary judgment (Regents of the Univ. of Cal. v. Doe, 519 U.S. 425,
431, 1997). Because the Eleventh Amendment operates to bar suits against states only in
federal court, a question emerged as to whether a state could be sued under Section 1983 in
state court. In Will v. Michigan Department of State Police, 491 U.S. 58 (1989), the Supreme
Court held that neither a state nor a state official in his official capacity is a “person” for
purposes of a Section 1983 damages action (Will, 491 U.S.) Thus, even if a state is found to have
waived its Eleventh Amendment immunity in federal court, or even if a Section 1983 action is
brought in state court, where the Eleventh Amendment is not applicable, Will precludes a
damages action against the state government entity. This holding does not apply when a state
official issued in his official capacity for prospective injunctive relief. Et cetera.
Okay, then, the State of Florida adopted the Life Safety Code mandated in the Code of Federal
Regulations at 38 CFR 59.130, 38 CFR 17.63, and 38 CFR 51.200, which set sprinkler
requirements for hotels and apartments, but the state may not be sued without its consent, so
why not sue the federal government for the adopted policy?
No, after all, the state is responsible for the adoption but immune from the consequences of
local enforcement, and, in any event, the federal government would be immune against socalled constitutional torts, notwithstanding the federal tort claims act giving federal courts
jurisdiction over wrongs causing property damage and personal injury.
Finally, a plaintiff might fervently appeal to the highest policymaker of all for relief, at least
according to some theologies, namely, the Lord whom the Congress worships by prayer.
However, the Lord is not beholden to anyone in particular under the contract with the Chosen
Ones, for nothing is perfect, therefore the crowd incorporate is in eternal breach of the
covenant and is subject to punishment at will. No entity is immune unless some fallible judge
along the climb up the mountain peak transcendentally intuits otherwise before the highest
level of civilization, where there is only good and no evil, is reached.
That is to say that if you cannot get by the likes of this local federal judge, who naturally has her
parochial tendencies and an inclination to generally side with her authoritarian class, to hold a
government behind which officials hide just as Klansmen hide under their sheets, liable for the
violation of your constitutional rights, then you are “SOL”, as an attorney observing the case
remarked. WTF, then, your cause is virtually DOA. If you mount an appeal to the U.S. Supreme
Court, you will lucky to get your case heard unless blessed by divine providence, and then you
will probably learn the hard way, because you have forgotten the precedential divine right of
kings to be above the law unless they decide otherwise, that the governments and all their
agencies are immune in one way or another. And of course the policymaking judges and
legislators are absolutely immune.

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Forget WE THE PEOPLE of the Preamble to the Constitution, the WE who fought against
sovereign immunity of irresponsible tyrants, for WE will not hear much about the cause unless,
horror of horrors, it is tried in the press, and that is unlikely because, if your cause is righteous,
the loss will probably be buried in the archives and not even reported, unless it manages to be
heard by the highest court in the land, because people do not like losers.
##

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