Benjamin, Aaronson, Edinger & Patanzo, P.A.

Special Magistrate forced to recuse himself

Last month a client of ours was called in front of a Special Magistrate for the Town of Dania to answer charges involving code violations.  That client, of course, was an adult entertainment establishment and the purpose of the proceeding was to start a process to close down that client.  Although we always feel that these types of proceedings are stacked decks against us, the reality of just how stacked the deck is truly came to light.

James Benjamin along with Cincinnati based attorney, Lou Sirkin, went to a code enforcement hearing in Dania during the week of December 13th.   Just prior to the hearing starting, a city attorney from another city, walked in the hearing room.  Mr. Benjamin asked that city attorney from another jurisdiction, why he was there.  The response was that he was the special magistrate hired to hear our case.  When questioned by Mr. Benjamin as to the propriety of having a city attorney from one jurisdiction act as a special magistrate (Judge) involving adult entertainment and First Amendment freedoms in another jurisdiction, Mr. Benjamin was informed that this occurs all the time.

Fortunately for our client, it did not happen this time.  Benjamin & Aaronson happened to have had a personally contentious relationship with that city attorney.  Based upon that personal contentious relationship, that city attorney from the other jurisdiction sitting as a special magistrate (Judge), was forced to recuse himself and continue the hearing until another special magistrate could conduct it early next year.

The problem with this whole scenario is, how can an adult entertainment establishment get a fair shake in front of a special magistrate, when that same special magistrate as a city attorney  in another city is doing his best to close down adult entertainment facilities in his city.  How can there even be a glimmer of due process and fundamental fairness when should that special magistrate rule in favor of the adult entertainment establishment in one jurisdiction, he knows that that ruling may in fact help adult entertainment survive proceedings in that city attorney/special magistrate’s jurisdiction?  The answer is of course there can be no fair hearing.

Due to this revelation and because of it, Benjamin & Aaronson intend in all cases where a city attorney from one jurisdiction is acting as special magistrate/Judge in another jurisdiction, to ask and even demand that a new special magistrate be appointed.  In a case out of the State of California, the Federal Court held that there was no fairness or due process in a hearing in which the city selected the special magistrate and paid for that special magistrate and had that special magistrate employed in numerous cases.  The Court held that the special magistrate obviously would have an allegiance to the city, not only because the city had hired it in this case, but also that the city was going to use that special magistrate in future cases.  The Court noted, that obviously, the special magistrate would have a conflict, knowing that his future employment could depend upon his rulings for the city.

Apparently, in South Florida the practice is even more egregious.  Not only is the special magistrate hired by the city, and not only is he paid by the city and obviously depending on the ruling may or may not get future employment,  more egregiously, those special magistrates are city attorneys from other jurisdiction who have vested interests in the outcome for their city in the way they rule as special magistrates in the other jurisdiction.  It is hard to see a practice that is more fundamentally unfair and a violation of due process than the one afforded to adult entertainment establishments in South Florida.

On another note, the litigation involving Club Eden and the City of Davie continues on.  Discovery deadlines in that case, have been extended to January 22, 2007 with both sides required to finish all pre-trial discovery by that date.  The trial in that matter is scheduled for April 2007, but only time will tell whether it truly will take place in April 2007 or at some later date.

The litigation involving the City of Lauderhill versus two establishments in the Town that the city contended were adult, but the establishments contended they were not, proceeds on.  Discovery cut off deadlines in that case are towards the end of February, 2007.  These cases along with the Club Eden case are on track to meet that deadline, with trials scheduled for the Lauderhill matters for later in 2007.

As to the doors off the booths case in Dade County, pitting three adult bookstores versus Miami Dade County, this case is on appeal.  Due to delays in getting transcripts and other documents, deadlines for filing briefs have been extended and a ruling by the Eleventh Circuit Court of Appeals is many months away.

Again, we will attempt to keep you informed of all of this litigation as each case progresses.  Of course, when new cases arise and new issues come to the front, we will do our best to inform you of them.

On another note, we hope you all had a wonderful holiday season and wish you all a happy and healthy 2007.

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