WELCOME TO THE OFFICIAL RICHARD E GERSTEIN JUSTICE BUILDING BLOG. THIS BLOG IS DEDICATED TO JUSTICE BUILDING RUMOR, HUMOR, AND A DISCUSSION ABOUT AND BETWEEN THE JUDGES, LAWYERS AND THE DEDICATED SUPPORT STAFF, CLERKS, COURT REPORTERS, AND CORRECTIONAL OFFICERS WHO LABOR IN THE WORLD OF MIAMI'S CRIMINAL JUSTICE. POST YOUR COMMENTS, OR SEND RUMPOLE A PRIVATE EMAIL AT HOWARDROARK21@GMAIL.COM

Friday, August 24, 2007

LET THEM DRIVE PORSCHES

The Herald carried the 3rd DCA’s opinion in Kuvin v. Coral Gables in which our Ms. Nesmith waxed poetic over the majority opinion of Judge Schwartz and his ability to quote from rock and roll lyrics.

The interesting part of this opinion is the dissent. Written by a former denizen of our REGJB, Leslie Rothenberg shows herself to be a conservative collectivist eager to warm the government loving hearts and minds of the Roberts Supreme Court. To put it another way, Judge Rothenberg writes powerfully for the proposition that there is little the government should not be able to do to its citizens that she would not find objectionable.

The facts of the case are simple: Coral Gables had an ordinance prohibiting the overnight parking on the street of pickup trucks. One Lowell Kuvin was renting a house in Coral Gables without a garage and received a ticket. He fought the ticket and appealed a declaratory judgment upholding the constitutionality of the ordinance.
The case proceeded to the 3rd DCA where the majority found the “Orwellian” actions of the City of Coral Gables frightening.

But Orwell’s world is Rothenberg’s world:

“Florida has long recognized that local governments may legislate to protect the appearance of their communities as a legitimate exercise of their inherent police power.”

Let Rumpole interpret: A government can do what it wishes to its citizens as long as the ends justify the means, meaning so long as the means are justified as a “legitimate exercise”.


Judge Rothenberg wrote:

The ordinances do not regulate “the types of personal use vehicles its citizens drive,” they regulate where they park them at night. I also take exception to two conclusions reached in the majority opinion. The first is that because the house Kuvin was renting had no garage, he had to choose between owning and parking his truck in the City or leaving town. Kuvin was not required to make such a choice. He could have chosen to rent an abode with a garage, or could have found an alternative parking place for his truck at night.


Rumpole says: of course he could! We live in a laissez faire country don’t we?

Tra la la la la- “Muffy, cancel the lease and lease the mansion down the street please. We need a garage.”


The City’s residents may own and drive cars, buses, trucks, and campers, big and small, within the City. They just cannot park them overnight on the street in the City’s residential neighborhoods.”


Ah, but Judge Rothenberg’s reasoning misses an equally rational point (using her logic) What if the offending resident employs a Klingon Cloaking device, and parks the car on the street but cloaks the vehicle, making it invisible to the code enforcement officers enforcing “quality of life” in the Gables? (“vee have arrived at a final solution for zeese pickup diving renters living in the motherland-Gables….may vee see your papers please?”) The Klingon Cloaking device is as likely an occurrence as the ease and desirability of owning a car in the Gables and parking it in the neighborhood next door.

Can’t you just see the residents of a Rothenberg envisioned Coral Gables where they race like vampires getting in their coffin before sunrise, to drive their trucks out of the Gables before the sun sets? Don’t we have enough greenhouse gas emissions without requiring people to drive their trucks to and from their home every sunset and sunrise?


But in a Rothenberg world, this is what governments and their enforcers do:
Maintaining the aesthetics of the City is rationally related to the welfare of the City.”

Rumpole wonders: “Whose aesthetics? Who decides? Please define “welfare of a city” We would define it as whether the residents have enough to eat, whether their children have good schools and healthcare. The neo-cons would define it as whether the residents are obeying orders and living in conformity of what the intellectual governing elite decide is good and proper to keep them in line.

Because if the residents express too much individuality, here is what Judge Rothenberg believes could happen vis a vis pickup trucks: “On the other hand, if Kuvin only used his pickup truck for personal use, the majority would find it unconstitutional to restrict his ability to park his truck in front of his house at night with a surfboard, smelly fishing nets, or a number of other items in the open bed of his truck.”

See what can happen in Judge Rothenberg’s world where citizens can run amok without the guiding hand of big brother? “Smell fishing nets or surfboards or other items” similarly offensive. Let them carry a surfboard and the next thing you know these ruffians will be playing (gasp!) Beach Boys rock and roll from their truck's "eight- track" stereo!


Understand that the dissenting opinion is a powerful argument for collectivism and the power of Government over people. To achieve all of this Judge Rothenberg has to engage in some tricky reasoning, foremost that Pickup trucks are and always will be “ designed as commercial vehicles” and a City always has the right to regulate commercial vehicles regardless of whether some cretin uses a commercial vehicle for a private purpose.

“These ordinances make perfect sense and are rationally related to maintaining and enhancing the residential character of the City’s neighborhoods and the aesthetics of the City because any vehicle that was designed for commercial use, regardless of whether it is used for commercial purposes, looks the same and is likely to be used to store and carry bulk material exposed to public view. “

In Judge Rothenberg’s world, only a tasteless clod would subject his neighbors to the tasteless insensitivity of driving a Ford 150- “let them drive Mercedes or Porsches!” she scoffs Antoinette like.


“Judge CortiƱas in his concurring opinion refers to Kuvin’s Ford F-150 open bed pickup truck as a “mainstream” vehicle and as a “light truck.” It is unclear where the label “mainstream vehicle” originates… There is, however, no citing authority for this “mainstream” classification… The justification(s) for referring to Kuvin’s pickup truck in this manner appear(s) to come from “Edmunds,” a source of information not contained in the record, and touted as a “well-known resource for information on personal use vehicles,” a source perhaps well-known to some, but which is completely unknown to me.”


Memo to Judge Rothenberg: on the way from your gated estate ( we really have no idea about this-just a guess) to the secure confines of the 3rd DCA, take a gander outside your car window and count the pickup trucks you see, then let us know if they are “mainstream” enough for you.


As to “Edmunds”, one word Google". How in the world does a lawyer get on the 3rd DCA unable to research and locate an Edmunds car guide?

We See this opinion as a golden goose of an opportunity for the Judge to demonstrate to the world (and those who make appointments to higher courts) her neo-con credentials and beliefs in an all powerful Government so long as that Government shares the same ideals, belief, and definitions of aesthetics and welfare.

"Individuality is fine, so long as we approve it. "

Thank goodness for Judge Schwartz. Keep fighting the good fight, but be careful of what music you listen to, as others may not approve. It might offend their notion of aesthetics.


See You In The Gables, where apparently we can park anywhere at any time, as our chosen vehicle doesn’t offend anyone. Maybe its time to get a pickup truck and offend the high society among us.

49 comments:

CAPTAIN said...

BREAKING NEWS...........

THE CAPTAIN REPORTS:

MIAMI BEACH POLICE OFFICER ARRESTED

From Mike Catalano

Miami Beach Officer Eduardo Macias was arrested today and charged with official misconduct and perjury. There may be other charges too.

My client (a female) was arrested by Officer Dominquez and Macias for DUI. Macias volunteered to take her to the station for the breath test. On the way, he stopped in a dark alley behind Lincoln Road and molested her. Dominquez had nothing to do with this and there are no allegations of wrongdoing by him.

I was hired within a few days of the arrest and my client told me the story. We reported this to ASA Joe Centorino (public corruption unit) and the MBPD IA office. They gave her a tape recorder. We worked it out so that she would meet Officer Macias in the hallway near Judge Bloom’s courtroom, while I was in court addressing the case. Judge Bloom cooperated and agreed not ask why the client was not in the court. She also agreed not to force me to trial that day. The in court ASA’s had no idea what was going on.

In the hallway, Officer Macias apologized to my client for not getting back to her sooner. He then promised to meet her later.

There were then some recorded phone calls and a meeting.

Macias, on duty and in full uniform, had two vodka drinks with my client at a bar on Ocean Drive. He admitted to all kinds of stuff, like touching, kissing etc while my client was handcuffed. He also admitted that he falsified the DUI paperwork to “help her out.” He marked her up as a breath test refusal but, actually, never read the implied consent at all. He has told my client that he has helped out others before.

He then showed up at DHSMV and lied under oath.

We did not expect him to show up at the formal at DHSMV but, he said something about being there on another case so, he had to testify anyway.

I then met with the Hearing Officer, Barbara Alvarez-Alfonso and along with public corruption ASA Luis Caso, begged her to set aside the suspension. Supervisor Liz Arabi was there. Luis made it clear that the SAO and police did not want her license suspended for refusal.

Of course, they ignored that. We received a letter from them later saying that the request of Mr. Caso from the SAO was “denied.” They set if for another hearing and told us to bring proof even though we told them that we wanted to keep this all confidential.

At that hearing, I appeared with the Sgt. from IA and my client. She explained that she was never read implied consent and that she was molested by the officer. The Sgt. said that the client was telling the truth and that the department did not want her license suspended.

Guess what… we got an order sustaining the suspension and finding the IA Sgt and my client not to be credible. Guess how angry I was that day? Now, the SAO knows just how bad the BAR office really is.

High ups at the SAO then called Tallahassee and complained. The chief of police wrote DHSMV a letter demanding that the suspension be set aside and all requests were ignored until I threatened General Counsel with a law suit they would never forget. Then, at 4:45 pm the day the last permit was to expire, Tallahassee set aside the suspension over the objection of the local office.

Barbara Alvarez- Alfonso and I do not speak anymore.

The investigation took one year to resolve because the police undercover tapes were hard to hear and needed to be “enhanced.” Turns out that the background noises are hard to “enhance” out of the tapes because the music in the background had voices, lyrics and music.

All charges against my client have been dropped.

The MBPD IA guys treated us with the utmost respect.

I suggest you all look over your Miami Beach PD cases and see if Macias is involved. What you do from there is not up to me. I find it hard to believe that he will continue to come to court but, who knows? I had a recent case with him and the SAO sent a body guard with me and he said under oath that he never in the past made a false statement in an implied consent case. His lawyer was present.

Chris Lyons is representing Officer Macias.

There are no other MBPD officers who are under investigation in this matter. He acted alone. It is hard to believe any cop would condone his behavior

CAPTAIN OUT ..............

Anonymous said...

I was at a City Commission meeting in the Gables about ten years ago. An attorney whose name I don't recall had suggested that the ordinance be amended so that pickup trucks would be allowed so long as they had "toppers" over the pickup truck's bed, that were permanently attached, and were the same color as the rest of the vehicle. The Comissioners rejected this out of hand. I still distinctly recall one of the Commissioners making an impassioned argument that if they were to allow such an amendment, it would create a slippery slope and the next thing you know -- and this is a reasonably accurate quote -- "there will be Everglades swamp buggies parked in people's front yards all over the place." I suspect that Gables residents like Roy Black are merely waiting for a crack in the ordinance so that they can bring in their swamp buggies and park them in their front yards.

old guy said...

Proof positive that when you get a 'lifetime' job and lots of power, you feel free to create your own fantasy planet - and expect others to live on it.

Thanks Leslie.

Anonymous said...

oh mike, you are my hero.

Anonymous said...

Rumpole:

The fascist comparisions are silly. There was nothing to stop the City from reversing the ban. There was nothing to stop voters from throwing out the mayor and commissioners. Kuvin wasn't being "screwed" by imperious star chamber. The citizens of Coral Gables were telling him to 'eff off.

What the the residents want is a way to avoid trashy communities. This is hardly unreasonable. Even the City of Miami has rules against raising chickens. Now expand that idea generally. The citizens of ....... have dedcided they don't want to live in community with ....... Where's the problem? So long as the exclusions are not based on race, sex, class, religion, etc., why should the aesthetic decisions of the democratic majority be ignored?

You also seem to argue that the ban on pick-ups is based upon on economic snobbery. ("Let them drive Porsches.") I suspect that you haven't priced a pick-up lately. A top of the line F-150 is a few hundred shy of $40K. Compare that to the Toyota Camry which runs between $18k-29k.

Now some of ridiculed the aesthetic argument by pointing to the new-pickup / bondo-sedan dichotomoy. To that the reply is simple. Not everything that we legislate against is capable of bright-line rules. It doesn't matter how sweet your pit-bull is... it's illegal. Meanwhile your neighbor's viscious Shepherd is perfectly legit until it's caught in the act. Which is to say... Pick-up trucks are USUALLY commercial vehicle. A bright-line rule recognizes this... even as it catches the unfortunate, innocent bystanders.

The appointed 3DCA has thrown out a bright line rule with decades of democratic support. So whose Orwellian fantasy are we living?

batman said...

Rumpole,

Your indignation is righteous and deserved. This is the same "Orwellian" judge who is pro-life, but in favor of the death penalty. In other words life only has value in the womb, but is subject to forfeit when she sees fit.

It amazes me that FAWL somehow saw merit in awarding Judge Rothenberg the "The Mattie Bell Davis Judicial Award" at a recent luncheon. This even though, other than equal pay for equal rigidness, Judge Rothenberg sets the cause of women lawyers and other professionals back to the Stone Age. I am not sure this would have happened except for the fact that the president of FAWL is an appellate lawyer.

Her acceptance speech was something to behold. It was tantamount to the old "I walked to school in the snow, barefoot and uphill in both directions to get an education" speech. It was obnoxious, self-congragulatory and it is a good thing she does not have a rotator cuff problem for the effort to pat herself on the back. It was almost (actually maybe it was) embarassing.

It says something that, as conservative as he is, even Cortinas could not agree with her. The next thing you know the City of Coral Gables will start permitting parking by the pound, wheel base length or useful load. Hmmm can you spell "more than one way to skin a cat(woman)".

Anonymous said...

Those that drive Porsches are not popular on this blog. Neither are those who, make a lot of money, make very little money, are in private practice, have not left government service, try no murder cases, try only murder cases, are nice judges, are not nice judges.

Anonymous said...

I now have narrowed down who the captian is.

He is one of about 200 local attorneys who does DUI's as he got my email and posted it as "breaking news."

Ok, maybe I do not know who the Captian or Rumpy is but, I know they follow the rocky road of DUI court.

Does anyone out there have a client who was fondled or whatever by Officer Macias? If so, please let me know.

Mike Catalano

Anonymous said...

Wow Mike thats one amazing adventure. It has been years since I have read an interesting story like that. I hope the Herald reprints this for the public to read as I found it one of the most interesting pieces ever. Although I think the New Times could do more with the story and I would even buy a copy (which are FREE).

Anonymous said...

To 11:43 am- WHAT?!!!!!!

Anonymous said...

macias sounds like a real class act

Anonymous said...

Check also Officer Dominguez's cases. Not for fondling women but for refusing to read implied consent and refuse to even offer the driver a breath test and then mark it as a refusal by the driver.

ready to puke said...

could catalano be any more like a teen-age schoolgirl in his giddiness?

Anonymous said...

This should be no surprise that Rumpole is Tom Cobitz.

1) he (like Rumpole) tries court appointed murder and serious felonies.

2) Yet (like Rumpole) he knows what's going on in traffic court. Why? Because Cobitz is a traffic magistrate so he is in the loop.

3) Everyone knows Cobitz has a gooy sense of humor.

Anonymous said...

I think that did it for me. Cobitz is Rumpole.

Todd said...

Listen Rumpole, I agree the ordinance is stupid and where else but in the Gables would you find something like that, but really -- Schwartz' opinion is an embarrassment. The footnote on the passerby --- hearsay upon hearsay upon utter irrelevance. Rather than ask a random passerby, how about examining the legislative history? Where is the required analysis?

At least Rother actually conducted a genuine constitutional analysis, whereas King Schwartz simply riffs as usual on his own highly idiosyncratic personal views of the world.

When will the old coot finally leave the bench?

Anonymous said...

JOHN COUEY SENTENCED TO DEATH FOR RAPE, MURDER OF 9-YEAR-OLD JESSICA
LUNSFORD

Anonymous said...

I have confirmation that the L & L brothers are Rumpole and Brian Tannebaum is the Captian.

Absolute Confirmation.

Tom Cobitz said...

What exactly is "gooy"

Anonymous said...

Rump:

I mostly agree with your blog comments on Rothenberg, but please don't call her a "neo-con."

Neo-cons are former (Democratic) liberals with a libertarian bent who became conservatives when Democrats turned collectivist and, sadly, anti-anti-Communist.

Rothenberg is a good example of a conservative statist, but certainly not a neo-con.

DCA Judge Shepherd might be a neo-con given his property rights background as a lawyer. I've seen some decisions from him that suggest he views state action very critically. Heck, J. Schwartz might be a neo-con; he's tracked statutory law in his opinions pretty closely for the last twenty years, but let the state try to go outside the law just a bit, he'll be there to reign it in.

Anonymous said...

I nominate Mike Catalono as a trial master. Not only does he have a near legendary reputation in dui cases but his twice a decade foray into felony non-dui cases is truly a testament to his skill and if there ever was a man's man out there in his ability to stand up to those who don't approve of his tactics as opposed to acting like a sniveling little mama's boy ready to complain to security the cops or the bar it is Mike. Like Mike, we all should be like Mike.

Anonymous said...

Schwartz is right as a matter of sound policy. Rothenberg was right as a matter of law. Schwartz should run for Coral Gables mayor. Rumpole asks: "who should decide?" Hmmm.... ever heard of government of the people? Through elections? Democracy? As long as a fundamental right is not infringed, a government has the right to enact dumb laws some of us dont agree with like thus truck ban.

Anonymous said...

I just read over the 48 page 3rd dca opinion on whether the city of coral gables can regulate a man parking a pickup truck in front a house he is renting that does not have a garage and I can think of no better example of the misguided priorities of not only this state but this country. Recent news stories say the Florida budget is unbalance and 1 billion in debt and the governor is considering ways to raise revenue such as increasing gambling which he campaigned against. They don't want to pay reasonable attorney's fees to represent the indigent but the court system and 3rd dca have the time for this nonsense. What is next-pay judges 150,000 a year to debate jaywalking, nose picking, spitting. We are at war in 2 areas of the world, our troops have suffered 4000 casualties and the best minds and the lawyers of Florida are debating the aesthetics of trucks. God help us all.

Anonymous said...

did Tom Cobitz go to school in the NE like Rumpole?

Rumpole said...

5;59- I absolutely disagree that a Neo Con has any respect for property rights. Original conservatives- the Goldwaters and Reagans had absolute respect for property rights. Neo Cons are collectivist statists who serve at the alter of altruism.

Anonymous said...

Cobitz..err Rumpole...whatever.., I meant "goofy sense of humor" but unlike you I cannot edit comments.

Rumpole said...

"COUNTY COURT WITH FLAIR"
TOMORROW
ONLY ON THE JUSTICE BUILDING BLOG

Anonymous said...

Rump:

5:59 here. Do some research on where the term "neo-con" came from. There's plenty of conservative/Republican statists (probably not as many as Democrat statists, but I don't like either kind), but neo-cons have a libertarian/freedom bent. You can blast Rothenberg all you want, but don't call her a neo-con. It's a fashionable term to use, but don't use it or you'll just type yourself as a mind-numbed Kosbot.

Anonymous said...

Chris Lyons is the one who told me about this blog. He pretended he couldn't remember the exact address. I'm pretty sure he's Rumpole.

Anonymous said...

6:31Pm God Bless you!!

I could not of said it better. Only in America can we have three Judges getting paid over $150,000.00 a year spend valuable resources writing a 40 some page brief on were some guy can park his F-150 FORD Truck on his own property. LORD HELP US NOW!

Actually blame Ms. Rottenberg for that. Because if she had not wrote a desenting decision the other two would have probally wrote a 8-15 pages decision reversing the trial Judge.

I once had an 8 hour trial in another State for calling someone a Fucking Bitch! Yes I was convicted and I appealed the $250 fine. Long story short resulted in a 30 page written decision as to weather I said "Fucking Bitch" or not.

Don't ya just love America.

Rumpole I will see ya in court not calling anyone a "Fucking Bitch".

Anonymous said...

Will Cobitz take a poly? For a grand?

Anonymous said...

Hey Rump, remember Chris Mancini? The Broward blog reports he's running against Mike Satz.

fake profiler said...

lyons=narcissistic
rumpole=self-depricating

rumpole=MJB veteran, early-1980's
or earlier
lyons=post 1990

lyons=not rumpole

Rumpole said...

Lil ol me...self depreciating? Nah.

COBITZ TAKE THE POLY said...

AND THE CRY GOES OUT

COBITZ TAKE THE POLY
COBITZ TAKE THE POLY
COBITZ TAKE THE POLY

when you see him court whisper
cobitz take the poly


we may have caught ourselves a blogger.

Anonymous said...

Cobitz is not Rumpole. He is a Miami grad and a conservative.

And, does anyone think that either L or L are smart enough to do the analysis Rump just does? Do you think they even know what the terms "Neo Cons, collectivist statists, alt[a]r of altruism", mean?

I have a feeling you guys are way off.

My guess is still Ben Kuehne (or whoever represented Carollo)

CK

Anonymous said...

Cobitz is not Rumpole. He is a Miami grad and a conservative.

And, does anyone think that either L or L are smart enough to do the analysis Rump just does? Do you think they even know what the terms "Neo Cons, collectivist statists, alt[a]r of altruism", mean?

I have a feeling you guys are way off.

My guess is still Ben Kuehne (or whoever represented Carollo)

CK

George Costanza said...

Hersch and Phil R should pay Cobotz NOT to take the poly. Once Cobitz is cleared, suspicion will return to them.

Anonymous said...

Breaking News desk bulletin: This just in. In the spirit of oneupsmanship the 4th DCA in Broward has taken on the appeal of a county ordinance 4 homowners on any block in upscale Lauderdale by the sea from having a boat which is the same color as the tile roof of the home. details at 6.

Anonymous said...

it is spelled self deprecating.as in i'm so old i need 2 women at once so if i fall asleep they have each other to talk to.

Anonymous said...

I am a criminal defense attorney.

I wonder if I would have had my client do what Catalano's client did.

I wonder if I would have helped get a bad cop.

How manya of us would have gone after the bad cop?

It was nice to see that Beth Bloom helped with the investigation.

How many of us get the client's case nolle prossed and then get the cop put in jail?

Anonymous said...

Cobitz won't take the poly b/c he's Rumpole. Phil R. is not Rumpole, although he's clever enuf to be.

Chris Lyons as Rumpole: JOKE

Anonymous said...

This just in to the BREAKING NEWS DESK: Judge Leslie Rothenberg, based upon her stellar performance the the Coral Gables case with a brilliant dissenting opinion will sit on the 4th dca on a special assignment to handle the appeal of the constitutionality of the orlando city ordinance which forbids feeding poor hungry people in groups of more than 25 at one time.

Anonymous Liberal said...

Cobitz is not Rumpole. How do I know? Because Cobitz donated $250 to George W. in 2004. Click here. Rumpole would never do that.

Anonymous said...

Rumpole states:

"COUNTY COURT WITH FLAIR"
TOMORROW ONLY ON THE JUSTICE BUILDING BLOG.

Is that like Judge David Young's new commercials for his TV show on Channel 33: Justice "with a snap" (mahe a half circle motion)?

Anonymous said...

I am not Rumpole

Anonymous said...

Yeah I am confirmed the 3DCA has lost all sense of justice and fairness, save for Judge Swartz. Just think if Judge Swartz was not sitting as a senior judge--ugh. Rothenberg is out of control and needs to come back to earth. I guess she forgot we have a constitution both federally and state. Thanks to this blog keeping us informed!

advocate said...

Kuvin/CoralGables
Everyone is missing the key point>
ordinance says no parking of trucks... Meaning trucks which have a commercial appearance. It is an assumption that all pickup trucks are to be included.
There are 3 models of trucks according to auto manufactures: suv,pickup,and minivan. Therefore all suvs and minivans should be subject to ordinance. Look at it this way, your suv or minivan has equipment or advertising on it you will receive a citation. Same consideration should go for pickups but does not, that is why it is an assumption that all pickups are to be included in the restriction. According to auto manufactures the model 'pickup' is designed for personal family use. It is also designed for commercial use just as suvs are designed for commercial use, different equipment than personal use design.Florida Statute 320 defines TRUCK by that definition suv and minivan are included.
Coral Gables does not have ordinance for aesthetics on cars other than abandoned or disrepair.

Anonymous said...

LETS DO THE HONORABLE THING HERE FOLKS..SOMEONE WHO MAY KNOW THOSE JUDGE'S WHO HAVE RETAINED ONE SAID CONSULTANT NAMED ROBERT LEVY PLEASE LIST THEM AND THERE YOU HAVE THE CANDIDATES WHICH MUST BE "OUTED" AND BOOTED OFF THE BENCH...

YOURS TRULY,

THE ANTI-LEVY CAMPAIGN