IN THE UNITED STATES COURT

SOUTHERN DISTRICT OF FLORIDA

ROD EISENBERG,
Individually Case No.:
Plaintiff,
vs.
CITY OF MIAMI BEACH,
A Florida municipality
Defendant,

INDEPENDENT ACTION TO SET ASIDE

SANCTION ORDER DATED JUNE 23, 2015
&
A SETTLEMENT AGREEMENT DATED SEPTEMBER 15, 2015

Pursuant to the Federal Rules of Civil Procedure (F.R.C.P.) 60(d)(3), Plaintiff Eisenberg,

Pro Se, files this independent action on the grounds of fraud on the court and seeks to set aside

an Order dated 6/23/15[ECF No. 206] and a Settlement Agreement dated 9/15/15 [ECF No.

221]. Venue is proper in front of the original judge (Altonaga) and jurisdiction is pursuant to

F.R.C.P. 60(d). (see Florida Evergreen v. Dupont Co., 336 F. Supp. 2d 1239, 1271 (S.D. Fl.

2004).1

PREAMBLE

1. The Court ruled the above case a sham in its 6/23/15 Order, [ECF No. 206]

primarily based upon its findings that Plaintiff conducted a frivolous case with allegations later

1
This independent action cites many pre & post 2007 "fraud on the court" cases, which show all
applicable elements necessary for an independent action for fraud on the court under Rule
60(d)(1)&(3) have been satisfied, as explained below in clear and convincing fashion. (see
Bankers Mortgage Co. v. United States, 423 F.2d 73 (5th Cir. 1970); Armour v. Monsanto Co.,
995 F.Supp.2d 1273, 1285 (N.D. Ala. 2014)).

1
proven to be false and raising statutes, F.S. 509.215 & 509.032(7)(b), that were supposedly

inapplicable.

2. Specifically, the Court held in its above Order that Eisenberg lied when he stated

Code Compliance Officer Jose Alberto was present on Dec. 2, 2011- As proof, the City proffered

to the Court that Plaintiff's own counsel, Smolker Bartlett et.al. (hereinafter known as

"Smolker"), "conceded" this false statement in "Fact Stmt Par. #23(unrebutted)"[by

Smolker]) [ ECF No. 151 at 6].

3. However, below will show by clear and convincing evidence that Eisenberg is not

a liar. Rather, in late May '16 material witness Jose Alberto told Eisenberg in Flamingo Park on

Miami Beach that the attorneys present for his deposition persuaded him to commit perjury and

state in his deposition that he never went to Plaintiff's establishment, Sadigo Court, on Dec. 2,

2011 and thus did not solicit a bribe from Eisenberg.[ECF 109-9 at 29];

4. Specifically, the Court held in its above Order that Eisenberg lied when he

supposedly stated that City informed Plaintiff's lender for the first time that Sadigo Court was an

"illegal hotel" in retaliation after Eisenberg spoke at a January '11 City Commission hearing. As

proof, the City showed that Plaintiff's counsel Smolker withdrew allegation par. #38 in complaint

[ECF. No. 91] and submitted a letter from lender dating back to 2008 proving lender was aware

of the illegal hotel issue for many years.

5. However, the evidence below will show that Plaintiff has never argued that lender

found out for the first time after the 2011 Commission Hearing of the illegal hotel issue, as City

has vainly argued this false pretense. [ECF 68 at 7]. Rather, Plaintiff, and even Smolker, have

always maintained that lender found out back in 2008 about the problems and that prompted

2
their concerns. [ECF 105-7 at 20]; [ECF No. 61 at 15, ft. 15]. And the concealed documents, if

ever produced, would show the City/fire marshal in contact with lender sending them documents

about all the violations Sadigo is accumulating.

6. This proves allegation #38 is actually true. Smolker admits to its truth in its draft

Response to Sanctions, p. 12 (see EXHIBIT #1-unfiled). It is unconscionable how this

"misunderstanding" of facts at best, manipulation of the truth by City's counsel at worst, became

a sanctionable issue;

7. Specifically, the Court held in its above Order that Plaintiff's use of the Vacation

Rental Law, F.S. 509.032(7) was patently frivolous because: (1) "The City contends Plaintiffs'

same statutory allegations were raised and rejected by the....Circuit Court.....in previous

litigation against the City." and (2) that par. (b) of statute is inapplicable because Plaintiffs do

not allege the Sadigo is a ...."multi-family housing that is also a transient public lodging

establishment" and thus cannot be a "vacation rental". [see ECF No. 36 at 27].

8. However, the evidence below will show that the above statement in (1) is a

patently false statement of fact. It is true the 3rd DCA affirmed the case [ECF 51-13 at 6],

however Plaintiff discovered after case ended that both counsels concealed from this Court an

extremely relevant Memorandum of Law/Verified Motion filed by former counsel for Eisenberg

in a tangentially related state circuit court case. (EXHIBIT #2).2

9. That motion sought relief from the Venzer/Thornton Orders [ECF No. 53-12;

ECF No. 51-13] due to the City, once again, concealing exculpatory evidence from the opposing

2
This Memorandum of Law, filed 4/26/13, is found in Docket sheet City presented to this Court.
[ ECF No. 53-5 at 2].
3
side and the Court itself. In the Plaintiff's pleading is a copy of the City's Motion to Strike dated

5/25/12 in former appellate case Eisenberg v. City of Miami Beach, 3D12-362.( EXHIBIT #2 at

54-56) where the City Attorney argues:

"House Bill 883[Vacation Rental Law] was not

considered by the trial court and was signed into law in
June 2011; it is not "new" authority and since it was not
submitted to the trial court nor argued to the trial court.
As such it is improper for this Court to consider."
10. The reason both counsels failed to submit the state court pleadings is obvious:

The Memorandum of Law and accompanied Verified Motion contain amongst other things the

State Transient Apartment license (Id. at 19). This proves the Sadigo Court establishment is by

definition a "transient public lodging establishment", unlike how this Court ruled [ECF No. 36 at

27].

11. For years, pursuant to the government's presumption of correctness, the Courts

have bought the City's false argument that the Vacation Rental Law does not apply because this

is strictly a fire code issue involving lack of sprinklers. (see 4/30/13 Court Transcript, Eisenberg

v. City of Miami Beach, Case No. 11-20234 CA 01 (15) p. 24-never filed- EXHIBIT #3) Below

will show that to be false.

12. For years, the City has suppressed the evidence and the truth that the Sadigo was

being fined over $300,000, by the City for not having a hotel license while selling short-term

"vacation" rentals, despite the existence of the new vacation rental law effective June 2,

2011.[ECF No. 133-19 at 5]. As the violations show, they had nothing to do with lack of

sprinklers; nothing to do with a food operation supposedly called a "restaurant".

4
 13. Below in more detail will describe another sinister way City's counsel unfairly

hampered Plaintiff's presentation of his case by falsely insinuating that "the properties listed in

their responses", described as "Exhibit #1" and "Exhibit #2", are Plaintiff's attempt to show those

properties as comparators. Actually, they are the City's prepared documents given to Smolker

resulting from a discovery request by Plaintiff.

14. Given all these inexplicable actions, as well as many more described below, it

would be a grave miscarriage of justice and manifestly unconscionable if this Court did not

provide relief from its prior sanction order, which called Plaintiff's case a sham. Instead, it was

the City's defense, which was a sham, layered with false statements of law, as well as with false

statements of fact. This strategy, helped by a willing opposing counsel, was designed to

manipulate the normal workings of this honorable court and prevent Plaintiff from fairly

presenting his case to this Court.3

PROCEDURAL HISTORY OF CASE

15. In October '13, Smolker filed a complaint on Eisenberg's behalf. On March 3,

2014, this Court dismissed Counts I, V, VI and VII, yet significantly ruled and agreed with

Plaintiff that apartments in RM-2 zoning districts can sell short-term rentals without obtaining a

hotel license.4 This is something the City had been denying in previous state court actions, most

bluntly at ECF No. 53-9 at 46.

3
Plaintiffs have filed a counterclaim against former counsel Smolker for legal malpractice in
Smolker et.al. v. Eisenberg Dev. Corp., Case No. 15-CA-005276, thus satisfying the first
element of an independent action. (see Armour at 1281). There is no adequate remedy at law
here because the state court judge will give comity to the federal court and not overrule its
decisions, unless they are set aside in this action.
4
See [ECF No. 36 at 4]. The City Attorneys deceived the Court, because even if it "actually was
a restaurant", it is irrelevant because the change to hotel in this case is just a "change of use", as
5
 16. On Sept. 19, 2014, this Court dismissed Count III and IV and on December 16,

2014 the Court dismissed the final surviving Count II and ruled in favor of the City on motion

for summary judgment. To add insult to injury, on June 23, 2015 this Court ruled Plaintiff's case

a Rule 11 sham and ordered Plaintiffs to pay City's attorney fees and costs based upon reasons

stated earlier. [ECF No. 206]. On September 15, 2015 Plaintiff and City signed a Settlement

Agreement. On May 6, 2016, Plaintiff tendered to City a $600,000 payment, as a result of the

Settlement Agreement.

COUNT 1-FRAUD ON THE COURT

I. Due to the fact that a City Attorney suborned perjury from a material
witness, Mr. Alberto, both counsels colluded in conceding on behalf of Plaintiff that Jose
Alberto was not present on Dec. 2, 2011. This was a deliberate scheme to defraud the
Court.

17. In a 11/11/14 pleading, the City Attorney stated with an intent to defraud:

"Plaintiffs now concede that Mr. Alberto was not even present at the December 2011

enforcement."(Fact Stmt. Par. #23-unrebutted [by Smolker]) [ECF No. 151 at 6], citing "Fact

Stmt. par. #23", which is just a sworn statement by the Fire Marshal "understanding" that Jose

Alberto was not present based on "City records".[ECF No. 120-2, at 4]. When Plaintiff asked

Smolker in an email if City's statement about the concession were true, he said it was not. (see

Smolker email dated 11/13/14- EXHIBIT #4)

18. Yet despite Plaintiff's pleas to counsel to fix the problem, nothing ever transpired

of it and Plaintiff forgot about it. However, the City subsequently used the false concession to

argue sanctions. The alleged concession shocked Plaintiff because he never conceded to anyone

that Mr. Jose Alberto was not present on December 2, 2011. Eisenberg definitely remembers

per the City's own statement [ECF No. 16 at 6, par. #2]. As described below, this has enormous
ramifications for the sprinkler issue.
6
speaking with Mr. Alberto at the Sadigo Court on December 2, 2011 for a brief time to offer his

"help" to Plaintiff. (see Rod Eisenberg Affidavit dated 5/18/18- EXHIBIT #5)

19. After the case was over, Mr. Alberto told Plaintiff that the City Attorney and his

attorney who were present at his 9/18/14 deposition told him before the deposition started to lie

and state he was not present on that day.5 Id. It is unconscionable how the City has deceived and

convinced this Court that their version is correct and Eisenberg is a liar when in fact they are the

fabricators of the evidence. This new fact arose after the case was over, thus satisfying the

timing consideration of the first element. (see Armour v. Monsanto Co., 995 F.Supp.2d 1273,

1282 (N.D. Ala. 2014).

20. It is well-settled law that this subornation of perjury by an attorney constitutes

fraud on the court and it would not be an abuse of this Court's solemn discretion to grant relief

from the multiple orders in this case and a subsequent settlement agreement. See Hazel-Atlas

Glass Co. v. Hartford-Empire Co., 322 U.S. 238 (1944) overruled on other grounds by Standard

Oil Co. v. United States, 429 U.S. 17 (1976)); Travelers Indem. v. Gore, 761 F.2d 1549( 11th

Cir. 1985)- Court ruled that had there been allegations of attorney involvement in witness Gore's

perjury and evidence to suggest that the normal, impartial operation of the court were interfered

with, fraud on the court would exist; In Re Levander, 180 F. 3d 1114 (9th Cir. 1999)-where

Court's reliance on a false statement in a deposition by an "officer of the court" resulted in fraud

5
Admissible hearsay, as per F.R.E. 804(b)(3), as declarant Alberto is unavailable and his non-
testimonial statement, inculpatory as to the City, admits to a federal felony of conspiracy to
commit subornation of perjury while in federal custody and there is corroborating circumstances
that clearly indicate the trustworthiness of the statement. (see Crawford v. Washington, 541 U.S.
36 (2004); U.S. v. Taggart, 944 F.2d 837 (11th Cir. 1991).

7
on the court; Chewning v. Ford Motor Co, 354 S.C. 72 (2003)-lawyer shenanigans resulted in

fraud on the court.

21. If Smolker did not stick its head in sand and forget to rebut the City's false fact

statement above, this Court never would have considered evidence that Eisenberg "conceded"

Mr. Alberto was not present on 12/2/11, which then led to this Court to rule Plaintiff's allegation

as false and the case a sham. [ECF 206 at 7]. This satisfies the second element in that Plaintiff

would have prevailed in at least the sanction order. (see Armour at 1282).

22. This unconscionable scheme by both counsels prevented Plaintiffs from

presenting its case to the Court. (see Toscano v. Commissioner of the IRS, 441 F2d 930 (9th Cir.

1971)-where an attorney stipulates to facts, files an answer on behalf of party, unbeknown to

party). Furthermore, with intent the City has deceived the Court into thinking the truth is that

Mr. Alberto was not present, when he actually was on 12/2/11 where he met and briefly spoke to

Eisenberg.

23. On a good day, Smolker should be responsible for recklessly incompetent

representation, however on a bad day it is extremely clear and convincing the City got Smolker

to agree to a nefarious scheme that would eliminate once and for all the Count that this Court on

two previous occasions had refused to strike. The simple plan was just to say Eisenberg

concedes Jose Alberto was not there. The City wrote it and Smolker did nothing to rebut it or

say it was false.

24. Why Smolker never submitted an affidavit from his client under the penalties of

perjury is still a mystery today. Eisenberg was ready and willing to submit an affidavit, but

Smolker never initiated any action on getting one. The Court relied on this factual statement to

8
later rule sanctions against Plaintiff. [Id.] This satisfies the third element of an independent

action in that these shenanigans prevented Plaintiff from objecting about the concession.

25. Moreover, this Court has the power to conduct an independent investigation in

order to determine whether it has been the victim of fraud on the court. See Universal Oil

Products v. Root Refining Co., 328 U.S. 575, 577 (1946). As such, this movant implores this

Court, which on courtroom walls lies the slogan, "We shall only seek the truth", to subpoena Mr.

Alberto into its chambers, if he shall become available, and order him to testify, if he recalls, as

to whether he was present on 12/2/11 at the Sadigo Court and spoke with Eisenberg.

26. And while the Court is investigating, it might as well investigate why in one case,

Chakra et. al. v. City of Miami Beach, Case No. 13-17885, Mr. Alberto cavalierly allows

Chakra to obtain a judicial default against him; yet in our case he mysteriously and he then has

the gumption to engage a lawyer to argue for a "Protective Order"[ECF No. 85] concerning his

pending deposition, which was later denied [ECF No. 87].

27. This Court should inquire whether it was really the City who engaged Mr.

Switkes to advise Mr. Alberto to listen to City Attorney Boksner when he recommended to

Alberto to state he was not present at the Sadigo Court on 12/2/11.

II. Smolker mysteriously withdraws allegation #38 of complaint without client's

knowledge nor approval

28. In what appears to be a sinister pattern and further proof of sabotage, on 8/31/14

Smolker secretly and without Plaintiff's knowledge, withdraws allegation #38 in the complaint

which states: "...the City Fire Marshal had told Sadigo Court's mortgagee that the Plaintiffs

were operating Sadigo Court as an illegal hotel". [ECF No. 91].

9
 29. Although true, Smolker admits to withdrawing the par. #38 allegation in its draft

"Response to Sanctions" mentioned earlier "because it could not locate any evidence of the

timing of the fire marshals statements". (EXHIBIT #1, p. 12) This satisfies the third element of

an independent action in that these shenanigans prevented Plaintiff from objecting about the

withdrawal since he never knew about it. (see Armour at 1282).

30. However, Smolker has no one but themselves to blame as they took the deposition

of Fire Marshal on two separate full days, Aug. 28 and Sept. 11, 2014. [ECF No. 109-1].

According to the transcripts of the fee-churning deposition filed in case, at no time did Smolker

ever question the Fire Marshal about her contacts, correspondences and/or communications with

the Plaintiff's "lender", specifically the documents that the fire marshal sent to the lender

pursuant to their phone conversation.

31. Yet inexplicably, Smolker withdraws this exact allegation on Aug. 31, right

between the two depositions, which then somehow leads to sanctions! Although both counsels

filed documents containing inter-office emails between the lender employees, [ECF No. 129-16,

ECF No. 110-9] neither of them filed any documents that the lender received from the City

pertaining to the violations.

32. Once again, City's counsel used this false pretense to interfere with the Court's

ability to adjudicate the matter by influencing the trier of fact to believe a false statement of fact

that Plaintiff never proffered- that being lender found out for the first time after Eisenberg made

a speech to the Commission in Jan. '11 of the "illegal hotel" violations. Had Smolker not

withdrew par. #38 without client's knowledge or permission, this Court would never have ruled

the way it did, holding Plaintiff responsible to wasting Court's time and levied sanctions.

10
 33. Why Smolker withdrew par. #38 of the complaint is still a mystery. Plaintiff

discovered this way after the case was over, as Smolker failed to inform client of the withdrawal.

This satisfies the timing consideration of the first element. (see Armour at 1282).

34. The Fire Marshal did communicate with Plaintiff's lender, as she admitted to in

the 1/5/12 state court hearing, [ECF 53-19 at 180] so Eisenberg had no reason to ever agree to

withdraw that allegation and he never did. This also satisfies the first element of an independent

action as Smolker never had Eisenberg's express permission to do this. (see Armour at 1282).

35. Thus, despite Smolker's response clarifying the City's misunderstanding of the

par. 38 allegation, [ECF No. 61 at 12, ft. #15] the City Attorneys still deceived this Court into

thinking once again that Eisenberg is a liar on this factual allegation. Smolker never informed

Plaintiff that he doubted its client's version of facts and certainly never informed Plaintiff that it

was going to withdraw allegation #38. (See Smolker Answer and Discovery- EXHIBIT #6, p.

2). In fact, even in his sworn deposition taken on 9/2/14, [ECF No. 105-7 at 20] Eisenberg does

not hold back that his lender has known about the "illegal hotel" label since 2008.

36. Both counsels had a duty to provide these exculpatory documents that City sent

lender, that probably included the fire code and code enforcement violations on the Sadigo that

Fire Marshal or someone on her behalf sent lender, pursuant to their phone conversation. The

specific concealment from client of the "Notice of Withdrawal" was part of a larger deliberate

scheme, carried out by the both sides' lawyers involved, to affect the normal operations of this

Court by preventing Plaintiff from presenting its case. See Rozier v, Ford Motor Co., 573 F.2d

1332, 1338(5th Cir. 1978)-although decided under Rule 60(b)3); Dixon v. Commissioner of IRS,

2003 WL 1216290- like case at bar, attorneys entered into secret agreements without knowledge

11
of clients; Intermagnetics America Inc. v. China Intl. Trust, 926 F,2d 912(9th Cir. 1991) (See

Aoude v. Mobil Oil Corp., 892 F. 2d 1115, p. 1118 (1st Cir. 1989); Bizzell v. Hemingway, 548

F.2d 505, 507, footnote #2 (4th Cir. 1977). Plaintiff was not negligent in raising objections to

the withdrawal because Plaintiff was not aware of the withdrawal and therefore this satisfies the

fourth element of an independent action for fraud on the court. (see Arbour at 1282).

III. Both Counsels' suppression of a Memo of Law/Verified Motion from a prior

State Court case, involving the Vacation Rental Law, F.S. 509.032(7)(b), shows how an
Officer of the Court lied to and deceived this Court when it argued the Vacation Rental
Law had been addressed in a prior circuit court case when in fact it had not.
37. As mentioned above, this Court ruled Plaintiffs have never alleged Sadigo is a

"multi-family housing [i.e., dwelling unit] that is also a transient public lodging establishment",

as per definition of "Vacation Rental" in F.S. 509.242(1)(c). [ECF 36 at 27]. This Court also

ruled that nothing in the complaint supports the allegation that the Sadigo offers "vacation

rentals". Id. This Court even mentioned how the City argued that Plaintiff on prior occasions

raised these same statutory allegations in front of state court Judge Venzer and Thornton, which

were rejected by them. Id.

38. However, the suppressed Memo/Verified Motion (EXHIBIT #2) mentioned

above shows the City representations to be knowingly false. Thus, the failure to disclose these

documents to the Court in this case does amount to fraud on the court because the Court relied on

the City counsels' misrepresentations on the inapplicability of the Vacation Rental Law to order

sanctions against Plaintiff. Although all parties were aware of these documents, the attorneys

deliberately kept it from the Court as part of a scheme to prevent Plaintiff from presenting his

case to the court.

12
 39. Tellingly, the suppressed items show how the City Planning Director equates

"vacation rentals" as being synonymous with "short-term rentals". (Id. at 3). In addition, the

attached City Resolution #2011-27625 (Id., at 48) shows the City protesting that the new law

will prevent them from adequately regulating short-term rentals in apartment buildings.6 This

shows the City Attorneys' inapplicability argument of the Vacation Rental Law is an outright lie

and a sham defense. In good conscience, the City's victorious orders should not be enforced and

it would be a grave miscarriage of justice if the Orders were left intact. This satisfies the first

element of an independent action. (see Armour at 1281).

40. Had Smolker and City not suppressed these documents, specifically Sadigo's State

Transient Apartment License(EXHIBIT #2 at 19), the minutes of the 4/3/13 Land Use P.B.

Meeting (Id. at 3) and the City Resolution #2010-27625, (Id. at 47) this Court never would have

ruled the way it did, as described above. This once again satisfies the second element of an

independent action. (see Armour at 1282).

41. As mentioned above, the City has also falsely argued that the "Vacation Rental

Law" does not apply because the City's enforcement action exclusively dealt with fire code

enforcement dealing with lack of sprinklers. BALONY! The truth is found in the Code

Enforcement violations given to Sadigo in 2011. [ECF No. 133-19 at 1].7 This concealment and

6
As per F.A.C. 61C-1.002(4)(a)(1)(b), Sadigo actually could have chosen between a State
Vacation Rental Group License or a State Transient Apartment License. This was also
confirmed by Div. of Hotels staff on or about 10/12. Eisenberg choose the later because its local
zoning district, RM-2, allows apartments to sell short-term rentals without becoming hotels, thus
it should not have needed the benefits of the Vacation Rental Law. See also F.S. 718.507,
where any laws, concerning buildings or zoning, here applicable to condominiums are also
applicable to apartments, i.e. "without regard to the form of ownership". This Court should have
been made aware of these laws by the attorneys in the case.
7
Additional proof that Sadigo's problems are not just fire code violations is found in a 5/19/11
email from Fire Marshal Machen to Code Compliance Officer Alberto, "I will use the fire safety
13
suppression by City's counsel was clearly designed to deceitfully tell the Court only half the

story, which involved the fire code violations; and not the other half, which involved the code-

enforcement violations regarding the short-term[vacation] rental issue.

42. In addition to withholding exculpatory evidence, the City had more shenanigans

up its sleeves, as briefly mentioned above. The City argues in [ECF No. 205 at 7]:

"Plaintiff's offer no proof any of the properties listed in

their Responses are similarly situated to the Sadigo; indeed many
of the properties are not in fact similarly situated (see [ECF No.
204-1] at 36-38; [ECF No. 204-2 at 1]"
43. Clearly, the Court bought this argument as its decision mirrored the same

thoughts. [ECF No. 206 at 5]. However, the clear truth is that the City deceived this Court,

through false implication, that the lists were prepared by Plaintiff for the reason of showing there

are comparators.

44. As mentioned earlier, Plaintiff only wanted to show that "Exhibit #1" proves that

in many cases City does recognize that the change from apartment to hotel can be a "change of

use". This fact also shows that the City Attorney falsely argued to this Court that any change

from apartment to hotel was a "change of occupancy". [ECF. No. 108 at 17; ECF No. 133-20 at

1].

45. "Exhibit #2" proves the City has lied to the many courts over the years because

they do recognize that apartments can be transient and that those prior statements made in the

6/30/11 court hearing in front of Judge Venzer [ECF 53-9 at 20] and in a 12/27/11 Meeting

arranged by Judge Thornton [ECF 53-18 at 35] were patently false.

requirements for hotel and Code{Enforcement} can use the lack of hotel BTR." [ECF No. 110-
13].
14
 46. Deceitfully, the City Attorney cites only Plaintiff Eisenberg's ECF No. 204 filing

which contained the same document, "Exhibit #1"-Apartments that underwent either a 'change of

use' or a 'change of occupancy'. However, the City originally filed the same exact document

pursuant to Plaintiff's discovery request! [see ECF 89-3].

47. Although the City sent these sought after discovery documents to Smolker on

6/20/11, they did not electronically file them until 8/30/11. Recklessly, Smolker did not even

provide these important documents to Eisenberg until 9/24/14 when it was too little, too late.

Solemnly, it should be becoming more clear and convincing to this Court that the

mischaracterization by the City of the "Exhibit #1" and "Exhibit #2" list of properties, as being

any different than what the ECF No. 89-3 documents say they are, as well as the inexcusable

delay in getting the documents to Plaintiff, were part of an unconscionable scheme to prevent

Plaintiff from fairly presenting his case to the Court.

48. For years, even Eisenberg did not recognize the distinction between "change of

use" or "change of occupancy" and on many occasions used the terms interchangeably. For

years, Plaintiff would argue that no change to hotel is needed, however the Task Force would not

entertain the issue and thus there was never any meaningful review.

49. Had Smolker not been sleeping at the wheel of advocacy, they would have shown

the Court that the Fire Marshal was the final policymaker when it came to her proclamation that

Sadigo's change is a "change of occupancy" and thus Ch. 28 applies.8 For example, the City

Attorney stated in one of those Task Force Hearings: "....whether the property has to undergo a

8
As per FFPC, Ch. 3.2.2, the Fire Marshal is the AHJ(Authority Having Jurisdiction) and is the
final say on what "procedure" is to be used, i.e. "change of occupancy or change of use", thus the
final policymaker when it comes to labeling a "rehabilitation".
15
change of uses, is absolutely not for this Task Force's consideration pursuant to the mandates of

F.S. 509.215(4a) and (4b)" [ECF 53-3 at 9]. So the change of use/change of occupancy issue

never was discussed and that was the way the City liked it.

50. That stopped around Aug.-Oct. '14 when Eisenberg and his fire expert, through

hard analysis of the discovery documents, uncovered the inequity that no one wants to discuss-

that the Fire Marshal was wrong in her unfettered determination that the process is a "change of

occupancy". As mentioned above, all the City's experts, SLS Consulting/Michael Sheehan [ECF

No. 113-3 at 3], the City attorneys in this case up unto May '14 [see ECF No. 16, at 5, 6; ECF

No. 33, p. 2, 6; ECF No. 60 at 9], the Building Dept. Director Rey [ECF No. 69-9 at 2]; City

Planning Dept., [Lorber email to Machen dated 12/19/08- EXHIBIT #7] and numerous

lawyers/judges, i.e., Judge Trawick in [ECF 69-1 at 5] and Bercow law firm [ECF No.69-6 at 2];

were describing the process as a "change of use".

51. The Fire Marshal inconspicuously called it a "change of occupancy" because she

knew FFPA Ch. 43.7.2-"Change of Occupancy" would direct the user to FFPA Ch. 28-New

Hotels, which requires sprinklers in "All buildings". (see FFPA Ch. 43.7.2.1(2); Ch. 28.3.5).

52. The Fire Marshal did not want to discuss how a "change of use" would direct user

to the "applicable existing occupancy chapter", which in our case is Ch. 29-Existing Hotels,

which exempts Sadigo because Sadigo is only 38' high and thus not a "high-rise"(75'+). (see

FFPA Ch. 43.7.1.1; Ch. 29.3.5; Ch. 3.3.32.7-definition of a "high-rise").

53. This is why there was never any discussion on the subject in all the Task Force

Hearings. [see ECF No. 53-1, ECF No. 129-8, ECF No. 53-2, ECF No. 53-3, ECF No. 53-4].

The City's counsel covered up this issue by manipulating the meaning of "Exhibit 1" and

16
deceived the Court into thinking it does not matter if one labels it a "change of occupancy or

change of use". [ECF No. 69-1 at 11; ECF No. 189-1 at 7, ft. #1].

54. However, it most certainly does. In NFPA 101, Life Safety Code, 2006 Edition,

Ch. 43-Building Rehabilitation located in the "explanatory commentary" section of the Code,

that is "designed to help users understand and apply Code provisions", it clearly states that "The

provisions of the two sections[43.1-Change of Use, 43.2-Change of Occupancy] lead the user to

classifying the rehabilitation work category as.........change of use or change of occupancy

classification...." (see Id. p. 1057). Therefore, these labels are extremely important because they

lead the user to different chapters which have different code requirements. This is where the

City should have lost the case ab initio and Plaintiff's criminal case should have been dismissed.9

55. This Court does not need an expertise in fire sprinklers, rather just an honest heart

to read these statutes, laws and codes for what they obviously say. This scheme prevented

Plaintiff from showing Court that the Sadigo's change should have only been a "change of use"

and that alone would have exempted the Sadigo from fire sprinklers, as explained above. This

once again satisfies the second element of an independent action. (see Armour at 1282)

56. The City has forced many two-story buildings to install fire sprinklers based on

the Fire Marshal's "date of licensure" proclamation. (i.e., "Casa Gaby", 751 Meridian) The City,

with the help of a "fast & loose" legal department, have enacted new fire code laws without any

public hearings, as if they are above the law and Miami Beach is their own private fiefdom. Of

course, on Miami Beach, if you know the right people, you can be a two-story building and not

have to install fire sprinklers. (i.e., Villa Italia, Tradewinds Hotel & Apts).

9
Although Smolker raised this issue after client Eisenberg pleaded with them to,[ECF No. 159 at
10], this Court did not entertain it and denied all pending motions as moot. [ECF No. 172 at 17].
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 57. If Plaintiff had a fair opportunity to present his case, the evidence would have

clearly and convincingly proved that the City's argument that Plaintiff has no comparators

because all its examples are "two" story, while the Sadigo is three stories [see ECF No. 95 at 12],

is hogwash. The Fire Marshal stated that it does not matter if a building is one, two or three

stories because if it was not transient before 1994, then F.S. 509.215 does not apply and all

buildings must contain fire sprinklers. Without the protections of F.S. 509.215 (1) & (2), which

have been usurped by the City's "Universal Sprinkler Mandate", being a two-story building does

not exempt you from sprinklers if your building is located in Miami Beach.10

58. Plaintiff would have easily been able to provide list of comparators, i.e.

apartments selling transient rentals without sprinklers, to the Court had it not been prevented

from doing so by own counsel. Village of Willowbrook v. Olech, 528 U.S. 562 (2000); Griffin

Indus., Inc. v. Irvin, 496 F.3d 1189 (11th Cir. 2007). This satisfies the second element of an

independent action in that Plaintiff would clearly have prevailed on this issue had it not been

prevented from doing so. (see Armour at 1282).

59. The City Attorneys have engaged in a malicious and prejudicial portrayal of

Plaintiff Eisenberg as a bad person, who threatens judges, who has been "criminally charged and

10
This is also in violation of F.S. 633.214(4), as the Fire Marshal's ordering two story buildings
to install sprinklers, if they were not transient before 1994, is in conflict with state law, i.e., F.S.
509(1) & (2). (see also EXHIBIT #8) Furthermore, the answer from the Machen Declaratory
Statement [ECF No. 110-17 at 13], that Fire Marshal has touted as proof that her determinations
are correct (see ECF No. 69-16 at 2), actually disagrees with her assessment that F.S. 509(1), (2)
& (3) applies only to transient public lodging establishments licensed before 1994-as the State
Fire Marshal Response states that F.S. 509(1) & (2) applies to "public lodging establishments",
which obviously can be either transient or non-transient.(see F.S. 509.242(1). Since Sadigo has
been a public lodging establishment since at least 1983, then FS 509.215 applies to it was well
and par. (4) would exempt the Sadigo Court, a "contributing historic structure" from sprinklers,
as a matter of law, assuming "adequate documentation is provided"! (see CMB Planning Dept.
email dated 10/4/07-unfiled)-(EXHIBIT #9).
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sentenced for the same underlying legal violations they challenge here". [ECF No. 151 at 4]

However, this false statement belies the fact that Eisenberg agreed to a plea deal.

60. Furthermore, Eisenberg never threatened a judge, rather he and his legal team all

agreed that the judge should recluse herself due to a visit by another judge, while interrupting a

hearing. Eisenberg's attorney, Truitt, mistakenly changed affidavit to say I protested inside a

judge's chamber, when it was not true. The attorney quickly corrected and submitted the correct

affidavit to the court.(see EXHIBIT #10)

61. The "Plea Agreement", which neither Smolker nor the City bothered to file, states

that if Eisenberg prevailed in the federal case, by showing Sadigo is permitted to operate

transient without sprinklers, the criminal case would be dismissed. (EXHIBIT #11, p.3). The

City Attorneys purposely included the sprinkler requirement in the Sept. '14 Agreement knowing

that the Court had said it is not going to get involved in the sprinkler issue when perhaps it

should have.[ECF No. 95 at 12]. No one bothered to tell this to Eisenberg or his criminal

lawyers and so the fix was in.

CONCLUSION

62. Although society is best served preserving the finality of judgments, no honorable

court should preserve a judgment obtained by: 1) subornation of perjury by an attorney involved

in the case, which resulted in a false concession of fact involving Mr. Alberto's presence on

12/2/11 at Sadigo Court; 2) Plaintiff's counsel, Smolker, secretly withdrawing par. #38 from

complaint, when the evidence shows it to be true; and 3) Both counsels suppression of

exculpatory evidence of a Memo/Verified Motion in prior state case that proves the Vacation

Rental Law applies.

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 63. The repeated instances of misrepresentation by both counsels, clearly and

convincingly described above, show there never was a real contest in the matter at hand and

therefore the Orders in good conscience should not be enforced. Plaintiff never had a fair

opportunity to show the Court how it was exempt from sprinklers or any of the other points

raised above, thus satisfying the first element of an independent action.

64. The evidence and laws discussed above clearly and convincingly show that

Eisenberg is not a contumacious or vexatious litigant, but rather one who has been a victim of an

enormous injustice. Plaintiff implores this Court to open its blinded eyes and set aside.

Therefore, it clearly would not be an abuse of this Court's discretion if it decided to err on

the side of caution and grant Plaintiff's plea for justice and set aside the Order ruling Plaintiff's

case a sham on the grounds of fraud on the court. [ECF No. # 206].

WHEREFORE, Plaintiff respectfully requests that the Court enter an order setting aside the

sanction Order dated 6/23/15 and any other Orders issued in the case this Court feels appropriate to set

aside, all in accordance with Rule 60(d)(3). Plaintiff also seeks any other award, fees this Court

deems just and proper. Respectfully Submitted,

By:__________________________

Rod Eisenberg, Pro Se

REQUEST FOR ORAL ARGUMENT

Pursuant to Local Rule 7.1(b)(2), by separating writing, the Plaintiff is requesting a two
hour hearing on this motion.

CERTIFICATE OF GOOD FAITH CONFERRAL

In accordance with Local Rule 7.1(a)(3), undersigned party has conferred with all parties
and nonparties who may be affected by the relief sought in the Motion in a good faith effort to

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resolve the issues raised in the Complaint. City's counsel has represented that defendants are
opposed to the relief sought herein. _________________

Rod Eisenberg, Pro Se

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on June 25, 2018, I filed the foregoing with the Clerk of the Court
and sent filing to all counsel and parties of record.
____________________________
ROD EISENBERG, PRO SE
P.O. Box 402672
Miami Beach, Florida 33140
Tel. No.: (305) 497-3621
email: info@sadigocourt.com

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