Politics: If It Walks and Quacks Like One, It’s Extortion

 

Smith, Cruz, Steinberg, Dermer, Garcia, Gonzalez, Dubbin, Saul & Jane Gross and Griffith

CITY OFFICIALS MAY NOT THINK SO, BUT WHAT THEY CONSPIRED TO DO TO LEROY GRIFFITH WAS JUST THAT.

Behind closed doors and around a long rectangular table they sat, eleven men in their suit jackets and shirt sleeves.

They had assembled to decide how, collectively, they would respond – retaliate, even – against an outsider who had dared to go after one of their own.

A clear message should be sent,” huffed one. “And I will tell you what message should be sent.”

I don’t think he ought to get the message that if he does that that we are going to be favorably disposed,” one suggested.

We are saying we won’t even talk to you,” growled another.

We know how to tell him,” the consigliere among them assured them.

The scene – and the dialogue – could have been straight out of a Mario Puzo novel or a Godfather screenplay. Or a script for a Sopranos reunion special.

 Or from an FBI surveillance recording of a clandestine meeting of “family” members, ones with surnames like Gambino, Genovese, or Gotti.

But, no. The scene was a 2005 attorney-client session between Miami Beach city commissioners and city attorneys, ones whose surnames include Dermer, Dubbin, Gross, Steinberg and Smith.

SO SUE ME, SUE ME, WHAT CAN YOU DO ME?

The men – and one woman, then-commissioner Matti Bower – had taken a midday break from their regular Commission meeting. They had assembled in then-city manager Jorge Gonzalez‘s fourth-floor conference room, as is the custom when city leaders go behind closed doors to confer in secret on legal matters involving the city.

The twelve officials present – then-mayor David Dermer, Gonzalez, Bower, then-commissioners Simon Cruz, Luis Garcia, Saul Gross, Jose Smith, and Richard Steinberg; and then-city attorney Murray Dubbin and three of his assistant attorneys – strategized how the city should react to Club Madonna owner Leroy Griffith.

Griffith had launched a federal lawsuit against the city a month before. Stymied yet again by their refusal a year earlier to drop a city ban on the sale of alcohol in adult clubs featuring nudity, Griffith was at his wit’s end.

How can I get you to revisit this issue? Griffith and his attorney asked them.

Take us to federal court and sue us, they allegedly told him. That way, we can meet in closed-door, executive session to discuss it.

So sue them he did.

Now, they were hatching their response to his brazen legal assault. There, tucked away in the city manager’s conference room and away from the prying eyes of the public and news media, the dozen set about – in a manner that would no doubt bring smiles to the faces of Don Corleone, Tom Hagen, and Tony Soprano – to make the strip club magnate regret ever tangling with “The Family.”

WHOLLY INAPPROPRIATE BEHAVIOR”

What they plotted and decided in that meeting, and in two more that summer of 2005, would later earn them a public rebuke from the Miami-Dade Commission on Ethics for “wholly inappropriate behavior.”

What it should have also earned some of them were handcuffs, perp walks, and appearance dates before a county circuit judge.

What was transacted in those three meetings – transcripts of which have since been obtained by me and CBS4 – doesn’t just saddle up to the fine line between legal and illegal, it darn well gallops right over the fence.

FLAT-OUT EXTORTION

As I laid out in my previous column, Griffith has been trying for the better part of a decade to convince the city to let him sell alcohol in his Washington Avenue club.

He likely would have already gained the right to do so long before now had commissioners not decided to back track on their approval, which they initially granted in early 2004.

But when one commish’s wife, Jane Gross, threw her opposition into the mix via a harsh email campaign and public comments at city meetings, that approval evaporated by the time the Commission took a second vote on the matter months later. Griffith’s fleeting victory in changing city code in his favor slipped from his grasp.

For what she said and wrote about him, Griffith then sued her for slander and libel.

When city officials got sucked in to what should have remained a private matter between one citizen versus another, that’s when they crossed the bounds of ethical conduct and legality. That’s when they allowed their friendships with the colleague whose wife had been sued to supersede their roles as public servants of the citizens of Miami Beach.

And when they went further and attached the demand that Griffith reimburse her legal fees to the tune of $30,000 before they’d grant him another public hearing – well, I don’t know what dictionary they go by, but mine defines that as flat-out extortion:

The crime of obtaining money or some other thing of value by the abuse of one’s office or authority.

Yet nobody ever went to jail for it. Nobody earned so much as an arrest, indictment, or fine from it, even though the ethics commission found fault with their actions.

HOW IT CAME TO THIS

Griffith’s effort to change city code to permit him to sell alcohol at Club Madonna dates to at least the turn of the century.

On March 15, 2000, the Commission unanimously refused to let him, 6 to 0.

He mounted another effort in 2003. At year’s end, then-city attorney Dubbin signed off on the proposal’s wording.

It returned before the Commission where, in January 2004, it was okayed on a first reading, 5 to 2, with Bower and Gross opposing. From there it was referred to the Planning Board for the details to be worked out.

The Board voted 6-0 to recommend against its adoption.

On its second reading before the Commission in March 2004 – and following public comments from speakers that included his wife Jane – Saul Gross made a motion to reject it; it was voted down, 4 to 3 (Bower, Dermer, Gross, and Smith voted to reject; Cruz, Garcia, and Steinberg voted to approve).

In an email three weeks later, Jane Gross thanked the Commission for its vote and labeled Griffith a tax cheat.

Outraged by having been “so unfairly vilified” by the Grosses, Griffith’s attorney subsequently issued a letter demanding that they publicly retract “various slanderous and libelous statements and writings” about his client.

When this failed to elicit the desired response, Griffith filed suit against her for libel, slander, and defamation. The suit was eventually dismissed in court in September 2004, but was revived after Griffith’s side filed a motion for a rehearing.

Meanwhile, Griffith and his attorney met with then-city manager Gonzalez and planning department director Jorge Gomez to discuss how best to proceed in the aftermath of his proposal’s defeat. Griffith says he was advised to file a lawsuit against the city in federal court in order to allow the Commission to meet in closed-door session to discuss the matter.

And so Griffith filed suit against the city in federal court in May 2005.

Later that month, the Grosses’ attorney offered a settlement agreement to end the slander suit and settle all claims between Griffith and the couple. In it, Jane Gross agreed not to seek payment from Griffith for her legal bill.

A WEB OF CONTRADICTIONS

Griffith’s federal lawsuit against the city forced city leaders into a series of three closed-door, attorney-client sessions in the summer of 2005.

And what a favor Griffith’s suit did for us. The transcripts of those meetings (are here and here) reveal an unsavory side of the city’s leadership – then under the helm of Dermer and Dubbin – that would later reap a scathing investigation by a local TV news station and the attention of state prosecutors and the county’s ethics commission.

In the first of those meetings, commissioners and attorneys batted around the idea of demanding that Griffith first drop his lawsuit against the city and pay off Jane Gross’s legal fees before they would even consider his ordinance again.

Sitting in the city manager’s conference room behind closed doors, the men (joined by Bower) sounded less like public officials mindful of their roles as representatives of the people, and more like members of an organized crime family, scheming how to circle their wagons for a united front against an outsider who had dared to launch a legal attack on the spouse of one of their own.

Several would later be caught up in a web of contradictory statements, denying in public what they – on record – had said privately.

HARDBALLING

Another subject on which there seemed no agreement – but foggy memories – was just who suggested to Griffith that he sue the city. Griffith and his attorney met with Gonzalez and Gomez in early 2005 and says that it was Gonzalez who advised him to sue the city.

But in one of the closed-door sessions that summer, Gonzalez said he couldn’t “recall telling him to sue us.”

Dermer, who grouched about Griffith through all three sessions, bitched about Griffith’s “hardballing,” never mind what one might call what he and the others in the room were conspiring to do against Griffith, who was only seeking redress of his grievances in the legal manner to which all citizens are entitled.

A city commission is supposed to represent you and me, not themselves and each other. The transcripts, however, revealed an antagonistic, us-versus-outsiders attitude among our civic leaders.

THE FIRST SESSION

City attorney Dubbin got the June 8, 2005, session started by referring to the Jane Gross lawsuit –

which I, frankly, consider part and parcel to the overall dispute and as an effort by Griffith to put pressure on the Commission or at least one commissioner to cave into his demands.”

Dubbin proceeded to summarize what Griffith wanted from the city –

The city would change its ordinance to allow nude dancing and alcohol for an experimental period of one year. During that period, the city would, and I guess he would, keep track of any adverse secondary effects that that activity had. If…the city determined that there were adverse effects, then the city would do as it sees fit and repeal the amended law, in which case he would have the right to go back to court and pick up where he left off.”

City manager Gonzalez added –

There are no other venues that would be allowed to operate [with alcohol and nudity].”

Mayor Dermer was perturbed –

I really don’t like the fact that somebody, through litigation, is going to try to use that as a wedge to intimidate, especially against the family member of a particular commissioner. I think it just really, as a precedent matter, is very, very, wrong. I just don’t like it.

Let’s say we do something like this. What kind of message are we sending? That you can go and, you know, hardballing against a particular family member of a commissioner to try and get a settlement? I mean, that would be the perception of this. No matter what the rights or wrongs or the merits of the issue, and I just don’t like that. It just doesn’t sit well with me.”

Cruz concurred –

I have been a supporter of Leroy and I have been a supporter of this ordinance all along, but the minute you drag in a commissioner, and in this case, even worse, a commissioner’s family, it just doesn’t sit well, never mind the precedent that it sets. It’s just not the way that we want to leave any of this, regardless. It just creates a very, very, bad taste in one’s mouth.”

He continued –

You don’t want to succumb to blackmail, and at the same time you want to put an end to this….[I]t’s not fair to have somebody’s family member involved in something like this.”

Dubbin then became the first to put on the table the linkage of Griffith’s legislation to the defraying of Jane Gross’s legal fees –

May I make a suggestion? And, by the way, I want you to understand that the city attorney’s office is not bearish on this litigation. We feel that we are going to win. As a suggestion, though, what would you think of our returning to [Griffith's] attorney and saying, ‘Look, we are not going to talk to you about anything else until you first dismiss that case and perhaps pay the attorney fees that are being incurred’?”

Dermer reiterated his contempt for Griffith’s stance –

If people want to negotiate, they’ve got to negotiate in good faith. Going and hardballing against a commissioner’s family, that act, in itself, I think, constitutes bad faith….I just draw the line there when it comes to families and that sort of thing.

In many ways, we are fair game, and we know what we got into and everything else, and you subject yourself, but when it comes to family, it’s a different story.”

Cruz liked Dubbin’s suggestion –

We request that they drop the litigation and, at that point, we would…start from square one, but unless it’s – unconditionally – the lawsuit is dropped – no use entertaining it [Griffith's matter].

Garcia voiced his opinion –

I was one of [Griffith's] biggest proponents….[but] when it gets to the point that it deals with the family, it’s like the old movie, you know, these are businesses with the family…”

Dubbin asked if that’s the ultimatum they wanted delivered to Griffith.

CRUZ: “He’s got to drop it – ”

STEINBERG: “Drop it and pay the attorney fees. I just don’t see giving the message – ”

CRUZ: “Drop it and pay, without a doubt, before we will discuss anything.”

Smith chimed in –

I agree with what’s been said, but I feel even uncomfortable sending him the message that we are even going to be speaking to him….but when those school kids came in and the parents and the teachers and everything else, even though I was open-minded originally and thought maybe we could come up with an ordinance, I just don’t see how I can support what he is asking for under any circumstances, whether he dismisses, whether he pays attorney fees. I don’t see myself agreeing to any alcohol and nudity at that location.”

Steinberg spoke –

I had some of the same concerns on the day when the school kids came in, and I told him if it ever came up, I wouldn’t support it for the hours he was asking for….but I certainly agree with you. I would not support it, no matter what happened with the litigation.

Dermer persisted with his “him-versus-the-family” thoughts, even questioning Griffith’s sanity at one point –

I think the tactics that are used here are just so out of the realm….if this is a way to be effective, by attacking people, individually, and their families, to me, you know, I just don’t. It stops there, and unless somebody knows that that’s the message you are sending, then they are going to continue doing it and others will get the message in the legal community that that’s the way you play around here. I think it’s wrong….then the fact that he files a lawsuit so we can sit in executive session. I mean, think about that….I think this is somebody in a different sense of reality at this point.”

Cruz asked the mayor if he wanted to move forward.

DERMER: “To tell you the truth, to sit in good faith in a settlement negotiation on any of this, at this point, you don’t do this. You just don’t behave like this.”

CRUZ: “I wasn’t looking at a settlement negotiation. I was looking at it – you drop the lawsuit against Jane, pay the legal fees, and we will start reviewing it. We’ll start from scratch.”

One by one, the commissioners agreed to linkage –

STEINBERG: “We are not willing to negotiate until everything is done.”

CRUZ: “We are not agreeing to settling anything. He has to let go of that and then we’ll look at the merits of the case.”

SMITH: “I don’t think he ought to get the message that if he [continues the Gross suit] that that we are going to be favorably disposed.”

CRUZ: “That’s what I’m saying.”

STEINBERG: “Not until the litigation matter is dismissed with prejudice and the attorney fees are reimbursed.”

Dubbin got the message –

I’m getting the idea of where you want us to go.”

CRUZ: “Do you want to explain it to me?”

DUBBIN: “Let me explain it to you as I understand it. You are not willing to sit down and talk to him about anything until this suit against Jane is dropped, the litigation against the city is dropped, the attorney fees incurred by Jane and the litigation are paid, and, at that point, you would consider yourself back to square one whereby he could – ”

STEINBERG: “Maybe I misunderstood.”

GARY HELD (assistant city attorney): “Are we talking about the case against the city as well in federal court?”

DUBBIN: “The case against the city I don’t care one way or the other.”

Still smarting from Griffith’s “hardballing,” Dermer gave his take on what the club owner was trying to do –

He didn’t get his way through the political process and the public process, so he’s going now through the legal process to try to get his way….I don’t like that – to me this is not the right place for this.

And these tactics – I think a clear message should be sent, and I will tell you what message should be sent. I find this extraordinarily insulting and…just terribly wrong, his behavior on this matter. I really don’t see anything logical or right about it.”

Cruz spoke –

I don’t think it’s right either that by us taking that direction we are also going to force, you know, Jane to continue to deal with a lawsuit and the costs associated with it.”

DERMER: “I agree with you there.”

Saul Gross was adamant that his wife wouldn’t be left out on a limb –

GROSS: “Simon, Jane is not paying the legal fees. You could be sure of that. I mean, that’s the reality.”

BOWER: “You are paying it?”

GROSS: “I’m paying it.”

BOWER: “Jane and you are one. What’s wrong with you?”

CRUZ: “You and your wife are the same thing, you know, and that’s what I’m saying. Regardless, I understand what you are saying, but we would be hanging out one of our own to dry.”

Cruz repeated his support for linkage –

I would tell him if you want to continue with your lawsuit against the city and everything else, do so, but you’ve got to drop this other thing [against Jane Gross] altogether. Continue the lawsuit against the city. This person has nothing to do with it.”

STEINBERG: “Right. Until you cut that off – ”

DERMER: “The issue of the free expression, etc., etc. – ”

HELD: “Secondary effects and whether there are sufficient secondary effects to justify that – ”

DERMER: All right. Listen. I don’t want to see the commissioner’s wife be harassed like this. I think it’s wrong…I don’t like the message it sends.”

STEINBERG: “We are not sending – we are saying we won’t even talk to you.”

CRUZ: “We are not even going to talk to you, but you’ve got to drop the other one.”

DERMER: “That’s fine.”

CRUZ: “Then we will tell you – ”

STEINBERG: “We are not even to discuss – ”

SMITH: “They have to go back to the Planning Board and start from square one.”

STEINBERG: “I think the message is, simply, the Commission is not willing to discuss settlement or anything else. Until you dismiss it and reimburse the legal fees, the Commission is not willing to discuss settlement.”

GROSS: “I hear you.”

Dubbin wrapped the meeting up –

We know how to tell him.”

THE SECOND SESSION

A month later, on July 6, 2005, city commissioners and attorneys met again in executive session.

Held summed up what they had agreed at their last session –

Before there would be any further discussion on the possible settlement of this [federal] lawsuit…there would have to be an agreement by Leroy Griffith to dismiss his lawsuit against Jane Gross and to pay their out-of-pocket attorney fees.

My understanding is that he has signed off on an agreement to dismiss that lawsuit…but without any payment of [her] attorney fees.”

So that’s essentially where we are. It’s up to the Commission in its discretion to give us [in the city attorney's office] direction to further litigate or to engage in some form of settlement discussion.”

He reiterated Griffith’s proposal –

…that there be a one-year period in which to test whether having alcohol at Club Madonna had any adverse secondary effects. And if there were, then the right to sell alcohol would be eliminated. If there were not, then the right to sell alcohol would be continued. And that’s basically what is before the Commission.”

Steinberg was opposed to settlement –

The fact that they dismissed it and then refused to reimburse for attorney fees, I think we should continue litigation.”

SMITH: I’ll second that.

Cruz asked Gross if his attorney fees would be reimbursed.

GROSS: No.

SMITH: Are you out of pocket anything?

GROSS: Yes. I’m out of pocket 30 grand.

Gross groused about Griffith’s unwillingness to pay Jane’s legal bill –

You know, it’s easy to laugh about it, but I’m out of pocket 30 grand.”

CRUZ: “That’s why we are rejecting [a settlement].”

GROSS: “I’m probably going to sign the settlement agreement just to foreclose him from continuing to sue us. And then, if the Commission [takes] the position that he’s not going to get anywhere unless he pays the fee, that’s fine. But that will be the Commission’s position. I don’t want to be in the position of linking the two.

Deputy city attorney Don Papy summed up the group’s consensus –

Our direction is clear to proceed on with the defense of [the Griffith lawsuit against the city].”

Gross said he’d sign a settlement agreement with Griffith “that says if he won’t sue me, we won’t sue him” and which stated Griffith was “not responsible to me for attorney fees” –

But if the Commission wants to link it as a condition for even discussing it, that’s between, you know, the Commission and Leroy.”

SAY ONE THING, MEAN ANOTHER

Three years later, when questioned by CBS4, Gross would claim, on-camera, that he “didn’t create any linkage whatsoever and I feel that all my actions have been totally proper.”

Never mind that he is on record as having mentioned it during the sessions – not once, but twice – and given his tacit approval.

What’s more, the county’s ethics commission believed he’d crossed the line.

Smith, in the same CBS4 report, audaciously blamed Griffith for the linkage despite the fact that he – Smith – was present at its conception in the closed-door sessions.

He also claimed, on-camera, that the city was considering “an overall holistic settlement of all of the litigation,” when nothing could have been farther from the truth: city leaders, in fact, had been resisting settlement in favor of a prolonged court fight, particularly given Dubbin’s bullish assessment at the time that he thought the city could win.

2007: TURNING TO THE AUTHORITIES

A frustrated Griffith next turned to the FBI. They recommended he and his attorney file a complaint against Saul Gross and other commissioners with the Miami-Dade state attorney’s office.

In June 2007, the county ethics commission issued a close-out memo on its investigation into Madonna’s allegations against the city, concluding it was “very likely” that Gross and other commissioners engaged in “wholly inappropriate behavior” by linking and conditioning the payment of Jane Gross’s legal fees to the settlement negotiations between Griffith and the city.

Undoubtedly, some City of Miami Beach officials improperly intertwined city business with the personal lawsuit pending” against Jane Gross, investigators said.

Dubbin and his underlings, they concurred, may have allowed commissioners to “push their collegial bonds over the ethical line.”

Joe Centerino, of the Miami-Dade state attorney’s office’s public corruption unit, issued a close-out memo two months later, closing out the SAO’s inquiry without charging Saul Gross or others with a crime.

In December 2007, Griffith’s attorney sought from the city the transcripts of the Commission’s 2005 closed-door sessions; the request was denied.

CONTRADICTING THEIR BOSS

The ethics commission’s own probe revealed that then-deputy city attorney Jean Olin, at the request of Dubbin – her boss – researched the issue “extensively” and concluded “there was ‘no way’ the City could pay Mrs. Gross’s legal fees” in her capacity as a private citizen. That should have stifled any discussion of the legal fees in the executive sessions Dubbin and his men had with commissioners.

But it didn’t.

Dubbin told investigators that, to his knowledge, the city wasn’t involved in the settlement negotiations between Griffith and Jane Gross.

Curiously, Held gave investigators information “seemingly contradictory” to that of his boss. He confirmed that he had possession of a memo that stated that the city’s agreement to settle the federal suit was “contingent on Griffith dismissing the case against Mrs. Gross and paying her attorney’s fees.”

Smith, who had succeeded Dubbin as city attorney a year earlier, corroborated Held’s statement: “Yes, payment of Mrs. Gross’s legal fees was a point of negotiation.”

Held, however, refused to produce the memo for investigators, “claiming attorney-client privilege.”

2008: THE TV TREATMENT

In July 2008, the Club Madonna dispute hit the air waves when WFOR-TV CBS4 broadcast an investigative report by its I-Team, delving into Griffith’s epic feud with City Hall. In the spotlight: the county ethics commission’s findings.

CBS4 had even obtained transcripts – the same ones denied to Griffith’s side months earlier – of the 2005 sessions. Their exposure would prove embarrassing to City Hall.

Saul Gross told the station that “all of my actions have been totally proper.” Smith claimed it was Griffith at fault, “because [he] linked all of the issues.”

But that’s not the way Luis Garcia recalled it –

GARCIA: “Leroy would have to drop the lawsuit against the city – ”

CBS 4: “Before the city would even consider hearing him on the alcohol ordinance?”

GARCIA: “Correct. It was implied that if Leroy wouldn’t pay for the Grosses’ expenses, the city wouldn’t hear it.”

THE ETHICS COMMISSION RULES

 In December 2008, the county’s ethics commission, by a 2-2 tie, failed to reach a consensus as to probable cause that Cruz, Saul Gross, and Smith committed ethics violations. Panel member (and former Beach mayor) Seymour Gelber‘s absence caused the tie. Griffith’s complaint was dismissed.

Nonetheless, the panel authorized a “letter of instruction” be sent to the City Commission, chiding it for improprieties during its 2005 closed-door sessions.

It was a six-pager that landed as a rather rude new year’s gift on City Hall’s doorstep on Jan. 29, 2009.

Miami Beach city leaders “appeared to be orchestrating their powers to specifically obtain a benefit for Commissioner and Mrs. Gross,” the ethics panel concluded.

They didn’t express much confidence in Dubbin and his staff, in particular:

The uniqueness of the situation” – that a commissioner’s wife was involved in a lawsuit with the same person who was suing the city – “should have prompted the city attorney’s office to exercise a heightened degree of caution.

Any discussion wherein it might even appear that the city would attempt to use its official leverage to secure payment of attorney fees to a commissioner’s wife, in her own private lawsuit, should have raised significant red flags to the city attorney.

The fact that consideration of the strategy suggested by the city attorney took place in an executive session Commission meeting, outside the public’s eye, created an additional risk that the strategy would be misperceived by the public.”

The panel then turned to the commissioners and rebuked them:

Although the city attorney suggested the strategy, the city commissioners themselves, especially Commissioner Gross, should have been concerned that if they successfully used their official power to persuade Griffith to make a direct payment of money to Mrs. Gross, that action could easily be perceived by the public as inappropriate unless fully and fairly explained to the public and Griffith himself.

The city must keep in mind that actions which may themselves be perfectly legal and ethical are subject to misinterpretation when not publicly explained. We define ethics as knowing the difference between what you have a right to do and what is the right thing to do.”

ORCHESTRATING THEIR POWERS”

In our opinion, ethical behavior is quite simply the doing of what is right, what is good. In the realm of public governance, that generally means doing what is in the best interests of the citizenry. This should be a simple task. It should not require the burdensome interpretation of legalese or engaging in lengthy analysis in order to discern what is being done for the “public” good or what might be being done for a personal or private good.

It would not be unreasonable, in our opinion, for the average person reading the transcripts of the executive sessions held by the city, and without the benefit of a public discussion, to conclude that the city appeared to be orchestrating their powers to specifically obtain a benefit for Commissioner and Mrs. Gross.

While we understand and accept as valid the predicament the city found itself in because of the lawsuit filed against a commissioner’s wife, we are compelled to reiterate once again that it is so often the mere appearance of impropriety that shakes the public’s trust in their elected officials.

The city should have been on heightened alert to ensure it did not use or even appear to use its power and/or resources to bring a personal benefit to a particular commissioner and his wife.

If in fact the city wanted to “send the message” to the public that it would not tolerate being “blackmailed” by Griffith’s guerrilla tactic lawsuit against Jane Gross, it would have been much more effective to follow a course of action that was as transparent and open to the public as possible. Indeed, it is our instruction that should such a situation ever arise again, every effort should be made to keep the separate litigations separate; they should not be intertwined at all.

Had the city presented this matter to us before taking the actions they chose to take,” the ethics panel concluded, “they might well have prevented many of the problems this entire situation has created.”

2009: ANOTHER CHANCE

City attorney Smith finally acquiesced in April 2009, releasing redacted, later unredacted, transcripts of the closed-door sessions to Griffith – 16 months after his attorney first requested them.

Cruz, Dermer, Dubbin, Saul Gross, Held, and Smith all signed a settlement agreement with Griffith two months later, in June, agreeing “in good faith” to give Madonna’s ordinance a hearing that summer.

In September, Griffith got his chance: another hearing, another first reading.

Jane Gross – again – was among those speaking out against it – “I just want to reiterate some of the points that I made in the past and that I continue to hold to be true” – and imploring commissioners to reject it:

My wish today is that you listen politely, in order to satisfy the terms of the settlement agreement, and then just vote it down. You don’t need to go any further.”

AN ECONOMIC ISSUE”

Why should the City Commission vote for this ordinance?” asked Griffith attorney Danny Aaronson. “Well, there are reasons why you shouldn’t. You could say, ‘Giving anything to adult entertainment can be used against me later on in some political campaign.’ Well, you heard the studies…you heard the polling that’s been done. This is a non-issue for your electorate.

Either way you vote, you’re not going to garner votes by voting for it and you’re not going to lose votes for voting against it. It’s not a political issue.”

Then what is it? It’s an economic issue.”

You are a tourist capital. But what do you not have? You are one of the few places in all of Miami-Dade County and Broward County that don’t have establishments that have alcohol and nudity.

Well, what does that cause you to do? It causes you to lose dollars going off the Beach.

I don’t have the statistics. I don’t have the numbers. But I have reality: When people come in to this city, tourist dollars come….They can easily take that causeway over and go to the other establishments, and they may drop $100, $200, $300.

Not just at that strip club but in the surrounding businesses around it, the restaurants around it, the other locales around it. You are losing that money from Miami Beach.

We know…that if alcohol and nudity is allowed, and Club Madonna has it, 11 new jobs will be created [there]. Eleven residents of Miami Beach who do not have employment right now will have employment. And that employment will range from $400 to $2,250 a week. That is the money that will be put into the community. That will be 11 less people, 11 less families that are in harm’s way based upon this economy.

We estimate that $200,000 in tax revenue will be generated from this, and we estimate that $25,000 will go to the homeless and domestic violence programs.

Pass us on this first reading, with no promise that it will be passed on the second reading. If we don’t come back with the answers that you want, then you can vote us down.

And if we do come back with the answers that you want, an unfortunate chapter in Miami Beach history may come to an end, and maybe all of us could walk away with smiles.”

WHAT ARE WE REALLY AFRAID OF HERE?”

Tammy Tibbles, a Flamingo Park Neighborhood Association member, told the Commission that “it’s really silly that we are going to legislate live nudity but not still-life nudity.

Is it a class thing? Is it okay to do it at Art Basel or at the Bass Museum? To have full-on nudity in front of you either as a sculpture or as a painting or even as performance art?

And they’re clearly selling alcohol there or they’re passing out alcohol, whether it’s free or whether it’s sold. I’ve seen some of you, actually, at Art Basel, partaking in a libation and there is still-life nudity there.

So what is the difference? And I challenge you to really ask yourselves, what is the difference? What are we really afraid of here? Is it because we think the class of person going into a nude club is less than the class of person that is going to go to Art Basel or the Bass Museum? Is their behavior really going to be that extraordinary that we as a community can’t handle it?”

IS THAT THE WAY YOU RUN YOUR COMMISSION?”

Soon it was Leroy Griffith’s turn at the rostrum. He wasted little time unloading the bullet in his barrel:

GRIFFITH: “I would like to ask commissioner Gross exactly what he has against Club Madonna and myself where he would go out and try to extort money from me. What is he afraid of?”

BOWER: “Who?”

GRIFFITH: “Commissioner Gross. I’d like to just ask him – did he or did he not tell Mayor Dermer that he’s out $30,000? He said [to CBS 4], ‘ I didn’t link it, I didn’t have anything to do with it’ but in [the transcripts] he’s saying, ‘Listen, I don’t want to be linking them together but if you, the Commission, want to get together and tell him that we’re not going to even talk to him anymore unless he pays the $30,000 – is that the way you run your city?”

Interrupting him, Bower and Smith – declaring, “This is out of order” – cut Griffith off.

GRIFFITH: “I don’t want to do this. I didn’t want to do it in the first place. I made a settlement with the city not because we thought we were going to lose the case or that we had no merit whatsoever. I thought we were going to start fresh… on a level playing ground and try to work this thing out.

I may not have a liquor license but we’ll survive and we’ll be there… But if that’s the way you wanna run your city and chase people out of here… and you can’t ask him why he says unless I pay $30,000 [they won't hear the matter]. Is that the way you run your Commission?”

ABSOLUTELY, I’D GO TO CLUB MADONNA”

Commissioner Victor Diaz humorously observed the omnipresence of nudity and alcohol in Miami Beach: “You just need to walk down South Beach. There are nude women and there are men drinking beers right next to them, so in some respects it’s already here.

The fact that someone would even debate the question of whether there is a connection between alcohol, nudity, and consequential behavior” – drawing chortles around the chamber – “well, then, you’ve never been on a date.”

Let’s reduce this to some common sense. The fact is, it exists. It’s human nature. Sex sells and alcohol sells, and sex and alcohol mixed together leads people sometimes to have a really good time, sometimes to engage in inappropriate behavior. To me this is a public policy issue all about the merits of the ordinance.

Is an amenity like this something I would go to? Absolutely, I would go to it and I’d bet you there’s a lot of people up here that have been to them in other communities or might want to go to them in the future.”

AS MIAMI BEACH A GUY AS THERE IS OR WAS”

When it came to a vote, the measure failed. A defeated Griffith rose to leave the chamber. Just then, commissioner Ed Tobin was moved to pay him a conciliatory tribute:

I’ve known Leroy for 30 or 40 years. You’ve always been a standup guy. People have always known you to be a charitable person in the community when I was growing up, and a supporter of the police and the fire departments. You’re as Miami Beach a guy as there is or was.”

2010: NO LUCK

Michael Gongora, at the Commission’s annual retreat in April 2010, asked his colleagues if they had any interest in revisiting the Club Madonna matter. Nope, they decided.

For their parts in the 2005 closed-door sessions, Griffith, in June 2010, filed complaints with the Florida Bar against Dubbin, Held, and Papy. The Bar, however, refused to find fault with the trio.

That November, it appeared Griffith was in luck once more; his matter came back before the Commission for a first reading.

LIBBIN: TREAT EVERYBODY FAIRLY

I have to say that I think that the one point Leroy makes,” commissioner Jerry Libbin said at the November 2010 meeting, “is that we are not treating all establishments equally.

We all know, sitting here, that there are things going on in other places that are in violation of this law. I told Leroy that a hundred times – that we ought to treat everybody fair.

I don’t think that we do and I even suggested to the manager from time to time that he ought to discuss with the police chief about sending people in undercover to clubs because there are things going on in relation to alcohol and nudity that are in violation of our laws and frankly we shouldn’t turn a blind eye to that while at the same time have a conscience to say to Leroy ‘no, you can’t have this.’

I might not support this, but I do support fairness. I think we need to take action in order to make things a level playing field. I don’t feel comfortable denying an application and turning a blind eye when I know – when we know – of places that don’t follow the law.”

Former commissioner Garcia sent his former colleagues a letter in support of Griffith:

When I was a commissioner, it was a surprise to me that Club Madonna was not allowed to serve alcohol. I always assumed they did. So for me it’s never really been a big issue. Since adult clubs in Miami, Fort Lauderdale, and Palm Beach had alcohol, I thought Club Madonna was just trying to be competitive and preferred that Miami Beach keep the business here rather than send our resort tax dollars somewhere else.

I have known Mr. Griffith to be a respectable businessman and a strong supporter of the city’s institutions in its charities. Past police statistics have shown Club Madonna to be one of the cleanest clubs on Miami Beach, with relatively few calls for police issues and very few crimes in the immediate neighborhood when compared with other clubs, restaurants, hotels, or bars.

This should not be a political issue; it should be a fairness issue. At the present time nudity and alcohol are prevalent in other clubs and even on our public beaches where city ordinances are not being enforced. Why is Club Madonna being singled out?

I would urge this commission to allow Mr. Griffith what he has been rightfully asking for over the past six years; an amendment to the city’s ordinance that would allow him to serve alcohol at his club.”

Despite his urging them to change the city’s “out-of-date” ordinance, no motion was made, so the matter again sputtered out of gas.

GARY HELD

Held has been the city’s legal point man in its feud with Griffith from the beginning. It was Held, Griffith attorney Aaronson told the Commission in 2010, who conveyed to him in a phone call the city’s position that if Griffith didn’t drop the Jane Gross lawsuit, they wouldn’t consider his legislation:

To my surprise, during one conversation, I was informed that the Commission was not going to address resolving this lawsuit until the lawsuit with Mrs. Gross…was resolved. I was told that that had to be resolved.”

Then, in a subsequent call, Held informed Aaronson that Griffith would have to pony up $30,000 to pay off Jane Gross’s legal bill before commishes would proceed:

That put me, as a criminal defense lawyer, not only [as a civil attorney] representing Mr. Griffith, in a quandary. Part of me was saying we cannot do that. That would appear to be bribery. We would be giving money to Mrs. Gross and that could appear to be bribery, bribing Mr. Gross. We can’t do that and we did not do that.”

Held not only communicated the city’s extortion demand to Griffith and his attorney, he has played a more active role as well in the city attorney’s office’s efforts to craft a winning strategy for combating Griffith if and when his proposal ever makes it back before the Commission.

Scott Bergthold – described as the national “go to guy” for local governments seeking to regulate the adult entertainment industry – is a 41-year-old Chattanooga, Tenn., lawyer who has made lots of money hiring himself out to jurisdictions all around the country who may be considering drafting ordinances to crack down on or shutter the adult businesses in their back yards. I gave you a little background on him in my previous column.

His “national municipal law practice,” according to his own handout summary, “focuses on the drafting and defense of adult business regulations in state and federal courts.” It says he is also a frequent lecturer and legal digest contributor on the issue.

 The city clerk’s office supplied me a copy of a memo that Bergthold wrote to Held in November 2010, three days before the Commission was slated to again consider Griffith’s proposal.

You contacted me and requested that I review the proposed ordinance,” Bergthold told Held, before listing four reasons for why the city should oppose it. Bergthold also provided a disc containing documents, reports, and studies that city attorneys could use in their arguments.

Some of the studies had titles like “The Effects of Erotica Exposure on Drinking,” “Perceptions of Postdrinking Female Sexuality: Effects of Gender, Beverage Choice, and Drink Payment,” “and “Postdrinking Sexual Inferences: Evidence for Linear Rather Than Curvilinear Dosage Effects.”

Seriously. I’m not making this up.

What Bergthold neglected to mention, however – but which Aaronson reminded commissioners as he refuted Held’s presentation at that 2010 Commission meeting – is that Bergthold relies upon reports and studies that are outdated or have been discredited by courts.

BERGTHOLD: “NEVER MIND THE STATS”

I told you previously that the MBPD’s own crime stats show that Club Madonna is no crime factory. Indeed, of 1,400 incidents reported in the 1500 block of Washington in 2003, less than 3% were attributable to Madonna. And none of those were deemed serious by the department.

Police Sgt. Bernie Ruder, in a 2011 e-mail to city administrators, vouched that “none of the officers on my squad have been involved in or know of anyone who has been involved in any enforcement activity at Club Madonna or any similar establishment that combines nudity and alcohol service.”

None of this mattered, maintained Bergthold in his memo to Held. As if he must have reviewed totally contrasting stats, Bergthold insisted that “the local police data submitted to the Commission supports keeping the current ordinance in place.”

Huh? How’s that?

Many crimes occurring in adult establishments are never reported to the police and do not result in a 911 call or police record,” he claimed.

In any event, the local police data suggests that nightclubs that serve alcohol have more reported crime-related problems that [sic] the one adult nightclub that does not have alcohol.”

What Bergthold did not say is that an adult club featuring nudity – with or without the right to sell alcohol – typically places greater emphasis on hired security than does a non-nude club and is likely to be more vigilant about keeping trouble at bay so as not to supply a ready excuse to authorities eager for an excuse to shut it down.

DISCREDITED” STUDIES

First Amendment lawyer Luke Lirot, of Tampa, has a national practice that defends adult clubs. He’s familiar with the arguments of industry opponents:

 “Our opponents do everything possible to mislead local governments about our industry in a concerted effort to do us harm.”

Those who would impose restrictive ordinances against adult businesses, he explains, rely on arguments such as the need for additional police resources to keep their occupants and neighbors safe and that such businesses are used for illegal sexual activities.

No credible studies back up any of [these] assertions…and there is no connection between the allegations government makes and the restrictions they mandate.”

Lirot is also familiar with Bergthold’s modus operandi:

He provides some variation of a basic boilerplate ordinance, with all the false justifications [just mentioned], to these municipalities, along with numerous legal cases that have adversely affected the industry.

He also provides a number of studies, all of which have been academically discredited, which he claims support these assertions. He works with the municipality to get the ordinance adopted. And in the event the ordinance is challenged, Bergthold often represents the municipality to defend the legislation in court.”

The future of civil rights, civil liberties, and freedom in this country,” Lirot believes, “depends on the adult industry.”

We must hold the perimeter against those who would advance their agenda at our cost.”

SCAREMONGER

Teresa Watson, a Rome, Ga., news blogger, recounted the case there where county authorities had passed an ordinance targeted at the area’s lone adult business, Entice Adult Superstore.

In 2006, the store struck back: It sued the county in federal court, charging its ordinance was unconstitutional and enacted solely to put it out of business.

Take one guess as to who agreed to represent the county. He’s the same one who helped draft the ordinance in the first place:

Scott Bergthold.

Bergthold came on the scene with all sorts of promises and warnings of dire consequences if Entice were allowed to operate,” Watson posted. “His statistics from an ‘expert researcher’ sounded frightening, and included those which indicated that drugs, crimes, and prostitution, specifically, would increase dramatically wherever an adult store went into business.”

What Bergthold neglected to confide, she added, was that his expert, Dr. Richard McCleary, a 66-year-old University of California at Irvine professor, “was essentially a contracted employee of Bergthold’s firm, whom Bergthold uses all over this country to scare communities and convince them to allow his firm to write ordinances and then to defend these ordinances which he has written.

Sound a little like conflict of interest? After all, how lucrative would it be for a law firm to write an easily defendable law, if their revenues could instead substantially increase with ambiguous ordinances requiring certain litigation?”

Watson noted that in a recent Iowa case, McCleary’s research on adult stores’ secondary effects to a community had been discounted by the courts, “in part because his research in a similar California case led him to draw a different conclusion for different clients.”

Bergthold and McCleary – as if tied at the hips – go wherever needed and wherever there’s an ample consultation fee to collect. They even venture into Florida, and have defended ordinances in Sarasota and Hillsborough counties.

And wherever Bergthold goes around the nation, reported the Venice (Fla.) Gondolier Sun in 2007, the ACLU follows “to provide their perspective on his brand of legal advice.”

 It is worth wondering – and questioning – whether the Miami Beach city attorney’s office was prepared to squander tens, if not hundreds, of thousands of taxpayer dollars to hire that discredited brand of advice – with $350-per-hour McCleary to boot – to head off Leroy Griffith and defend the city’s 1989-90 ban.

WHAT ABOUT ME?”

Mayors and commissioners are a fickle breed. The same ones who may pal around with you and consider you a friend on one occasion may go against you in the Commission chamber on another.

Dermer was for Griffith before he caved to public pressure and voted against him. Bower and Smith are but two others who have, in their legislative careers, voted on both sides of the Madonna ordinance.

Tobin voted against him but had kind things to say about Griffith’s character after his proposal failed at a 2010 Commission meeting. Libbin has spoken up in favor of treating Club Madonna fairly. Gongora, Wolfson, and other commishes – past and present – have met with Griffith in his office or over a meal.

Dubbin and Held were part of a “clique,” as Griffith refers to it, which would regularly join him and other city leaders for lunch around town. And over the years, any number of candidates for city office and incumbents seeking reelection – far from being embarrassed from any association with him or his club – have hit Griffith up for contributions to their campaigns. He has readily obliged them.

Mayor Bower and commissioner Deede Weithorn, each running for reelection at the time, paid a joint visit to the club in October 2011. Griffith wrote out checks totaling $2,000 to Weithorn’s campaign.

What about me?” said Bower.

If you remember, I helped you last time [you ran] and I always told you I would help you,” Griffith recalls telling the mayor. “You told me you had no problem with the club or its operation. But when it came up for vote, you first voted yes, then voted no, and then reversed yourself and said you made a mistake [by voting it down].

Matti,” he gently chided, “you’re like the jewelry you wear. You’ve got one earring that says “YES,” another earring that says “NO,” and a necklace that reads “MAYBE.”

By meeting’s end, the mayor had managed to sweet-talk Griffith into contributing $2,000 to her campaign as well.

2012: “I’VE BEEN WAITING 7 YEARS”

I am just trying to remain competitive on the Beach where almost every other club is offering some sort of burlesque-style night with one form of nudity or another,” Griffith wrote in a February 2012 letter to the editor published in the Herald.

And they do not have an adult entertainment license. I just want the city to apply the law equally….The real issue is how the city turned bitter against me and made this a personal vendetta because I sued a former commissioner’s wife for slander….If you get an answer as to whether the city tried to extort me of $30,000, please let me know – I have been waiting seven years for one.”

Weeks later, in a March 23, 2012, memo to the city manager, Weithorn said she wanted to resurrect the one-year trial period and refer it to committee. The club, in return, would make improvements to its facade and contributions to Fienberg-Fisher.

Facing opposition, though, she withdrew the proposal at the following month’s Commission meeting.

In June 2012, North Miami’s city council, by 3-2, okayed an ordinance allowing alcohol to be sold at a nude club there. That August, North Miami Beach followed in suit with a unanimous vote to lift its 1989 ban.

Griffith’s attorney submitted to Miami Beach City Hall a proposed draft of an ordinance that “meets the concerns of city staff in previous discussions.” City attorneys Smith and Held, in a November 2012 memo to the Commission, recommended against, preferring to draft their own version, if and when ordered to do so by commissioners.

Griffith, in a Nov. 8, 2012, letter to commissioners, expressed “no objection” to a city-drafted ordinance: “[H]opefully we can put this matter finally to rest.”

THEY SHORT-SHEETED ME”

The city has demanded, time and again, that he show “good faith.” But it has often been the city, Griffith asserts, that has broken that good faith:

I was enticed to drop the lawsuit. They promised something they didn’t deliver.”

His settlement agreement with the city, he explains, was supposed to afford him a fair hearing. That’s all he’s ever wanted.

 But he notes how one Commission meeting was labeled “not a public hearing” by Bower and Smith, yet opposition speakers were allowed to vent.

 At the same meeting, the chamber’s audio-visual equipment – in working order only previously in the meeting – was inexplicably out of order for the presentation he wished to show.

Griffith afterward complained he was unable to present “any and all testimony and evidence” as stipulated in the agreement.

They short-sheeted me,” Griffith believes of commissioners. “They paid lip service” to both the judge who presided in the case and the settlement that was crafted from it. And if it means going back to federal court to argue that the city has reneged on its deal with him, then he’s perfectly willing and prepared to do battle once more.

TENACITY

Who could blame him for suing Jane Gross? If you or I had been publicly slandered, been labeled a tax cheat, and accused of promoting prostitution, wouldn’t we sue? We’d certainly have a right to.

And if that someone we sued happened to be the spouse of a sitting commissioner, then why should that suit preclude us from having our matter fairly heard and considered by that same city commission?

Would our suit be any excuse for city leaders, hunched over a table in closed-door session, to conspire to intimidate us into backing down and paying off the legal fees of the one we sued, or else no fair hearing?

 But that is precisely what happened to Leroy Griffith and why, over a decade after his tug-of-war with the city began, Club Madonna patrons are no closer to being able to buy a drink there.

Whether you like him or hate him, you gotta admire the man’s tenacity. Persistence. Obstinance. Call it what you like.

Heard of the man who fought City Hall and won? Here’s the man who keeps fighting City Hall, but hasn’t won – yet.

When public officials – cowed by the false claims and scare tactics of some – hinder the rights and liberties of even one of us through self-serving, morality-minded codes, laws, and ordinances, we should all be alarmed.

 “We have never stopped sin by passing laws,” Dwight Eisenhower said, “and in the same way, we are not going to take a great moral ideal and achieve it merely by law.”

Or put another way, John Ralston Saul, in his 1995 The Unconscious Civilization: “Whenever governments adopt a moral tone – as opposed to an ethical one – you know something is wrong.”

And something is truly, repugnantly wrong when the same officials are willing to listen to the twaddle dispensed by moralizing huckster-attorneys and the pseudo-science-touting “experts” they employ – and equally eager to shower our tax dollars upon them to peddle such hokum and hooey.

SHAKEUP TIME

Most of the commissioners who were present at the 2005 closed-door sessions are gone from City Hall. Many of the city attorneys who were present are still there.

Smith, a commissioner then, has since replaced Dubbin as city attorney. Held, who conveyed the extortion ultimatum to Griffith and his lawyer and who was admonished by the ethics panel for doing so, is still there, as is Papy.

It’s troubling that the city still depends upon some of the same legal eagles for its representation, even after their faulty, unethical advice to commissioners eight years ago.

And given the recent shameful spectacle of assistant city attorney Alexsandr Boksner being upbraided by Judge Victoria Sigler in the ongoing Memorial Day 2011 shooting case, it’s abundantly evident that that office is overdue for a shakeup, a cleaning out, a fumigation – call it what you may.

My understanding is,” Griffith told me, “that if you’re an attorney you’re supposed to report a crime if you see it. Meantime, here’s the city attorney and an assistant city attorney [Held] calling me and my attorney up and telling me if I don’t pay them $30,000 in attorney fees that they’re not going to hear it. I wouldn’t pay it, they didn’t hear it.”

That’s my understanding, too. Question is, do our city attorneys understand it?

OLD AND NEW

There used to be a lot of great strip clubs on the Beach,” recalled Sheldon Miller, in Joann Biondi‘s 2006 pictorial, Miami Beach Memories: A Nostalgic Chronicle of Days Gone By. Miller is a local realtor who, in the late ’50s, produced the Miss Miami Beach beauty pageant.

And I started going to them as a kid in the 1940s. Actually, I followed my dad there. He used to go out for a walk after dinner, and one time I followed him all the way to Chez Paree. It was a real eye-opener.”

Miller told of how nudity was forbidden then, “so they worked around the law by sometimes having the girls pose topless – just pose. They couldn’t move. If they moved they would get arrested, so they just stood still and claimed it was art.

Art was OK, but nudity wasn’t. But even when they stripped, the girls never got completely naked. They wore G-strings and pasties.”

Which goes to show that eventually things do, with time, change. Old buildings come down, new ones go up. Old water pipes get dug up, new ones get laid.

And old, out-of-date ordinances get reexamined, updated, or tossed out altogether, and new ones are adopted, reflecting a new population, new tolerances, new attitudes.

It’s called progress. Griffith and others only wish it had happened in his instance long before now, minus a decade of legal wrangling and bad feelings.

It’s time City Hall embraced progress, too, and scrapped its ban. When a newly-configured Commission convenes in a few weeks, will progress find eager, open-minded recipients willing to welcome it?

We shall see.

Update: [Since this article was written, Griffith has filed another lawsuit against the City of Miami Beach – Editor]

The author is an independent columnist. The opinions expressed in this column are his own and not those of the publication or its editors and owners.

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