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1. Rod Eisenberg, the owner of the Sadigo Courtyard Apartment Hotel in Miami Beach, was ordered to install $70,000 of fire sprinklers or face fines and closure of his building.
2. Eisenberg sued the city for violating his civil rights, but the suit was dismissed because the judge said the city was not the ultimate policymaker.
3. The document then discusses how the policymaking authority is unclear as the rules come from various levels of government, and how the legal system protects governments from liability through claims of sovereign immunity.
Original Description:
Neither can the Miami-Dade County, The State of Florida, and the United States.
Page 4 of 9
MIAMI MIRROR – TRUE REFLECTIONS
1. Rod Eisenberg, the owner of the Sadigo Courtyard Apartment Hotel in Miami Beach, was ordered to install $70,000 of fire sprinklers or face fines and closure of his building.
2. Eisenberg sued the city for violating his civil rights, but the suit was dismissed because the judge said the city was not the ultimate policymaker.
3. The document then discusses how the policymaking authority is unclear as the rules come from various levels of government, and how the legal system protects governments from liability through claims of sovereign immunity.
Page 4 of 9
MIAMI MIRROR – TRUE REFLECTIONS
1. Rod Eisenberg, the owner of the Sadigo Courtyard Apartment Hotel in Miami Beach, was ordered to install $70,000 of fire sprinklers or face fines and closure of his building.
2. Eisenberg sued the city for violating his civil rights, but the suit was dismissed because the judge said the city was not the ultimate policymaker.
3. The document then discusses how the policymaking authority is unclear as the rules come from various levels of government, and how the legal system protects governments from liability through claims of sovereign immunity.
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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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 mans 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 Eisenbergs 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 Floridas 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 Page 2 of 9
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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, Eisenbergs 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 citys 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 citys 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 closurehe pled no contest to a charge of resisting arrest without violence. He brought a federal suit against the city, asserting, under Page 3 of 9
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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 citys 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 Page 4 of 9
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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 Benthams 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 Page 5 of 9
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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 Page 6 of 9
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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. Dept of Treasury, 323 U.S. 459, 464 (1945). Even if a third party agrees to indemnify the state, the Eleventh Amendment still protects the Page 7 of 9
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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. ##
Lester & Frances McLean Debtors-Appellees v. City of Philadelphia, Water Revenue Bureau, Wilson Aikens, Debtor-Appellee v. City of Philadelphia, Water Revenue Bureau, 891 F.2d 474, 3rd Cir. (1989)