The Miami Mirror

South Beach journalist says negligent public officials should be charged with involuntary manslaughter

2012-01-31T11:13:00.000-08:00

BAD ACCIDENTS WAITING TO HAPPEN IN SOBE AT 6TH & JEFFERSON

January 31, 2012, 1:00pm

Filed by David Arthur Walters
THE MIAMI MIRROR

MIAMI BEACH—A motorcycle speeding north on Jefferson Avenue through the blinking yellow light at the intersection at 6th Street & Jefferson nearly hit a bicyclist travelling east on 6th Street who had stopped at the sign and then proceeded through the intersection.

Two sanitation workers who stop their street sweeping machine at the corner every day to fill it with water from the hydrant were not surprised.

“I see an accident almost every day,” one worker said, shaking his head. “An accident is waiting to happen here.”

“That’s right,” I affirmed. “Everybody says that about this intersection. And accidents have happened here. A man was run over here the other day. I included this dangerous corner in my article in the Sunpost.”

“It’s their fault. They don’t pay attention to the lights. There’s a yellow light on the avenue and stop signs on the street. Yellow means to slow down. But they don’t.”

“The state definition for blinking yellow means caution,” I said, “whatever that means, and a steady yellow light means speed up to make the light. So they are confused.”

“Where did you get your license?” asked the sanitation sweeper driver.

“I don’t drive. But I know that city officials have the wrong attitude, that the accidents are the fault of stupid people. But the city is at fault too. There should be a four-way stop sign or four-way traffic light here just as there is a four-way light there,” I said, pointing at the 6th Street and Meridian Avenue intersection a block away.

“Yeah, you’re right.”

“I know, and I noticed the city manager’s assistant Hilda Fernandez and the police department a few weeks back that some immediate safety measure should be taken, but I was told the traffic engineers won’t get to this intersection until the end of this month, and here it is, the last day. If someone gets killed, it’s on them, and the lawyers will sue the government agencies for negligence. My notice is on record and everybody knows this intersection is dangerous.”

“For how much?”

“The amount is limited, but the legislature can override the limit, and they very well should given the callous attitude of the managers responsible for safety. As far as I’m concerned, the officials who have been told about this situation ought to be personally charged with involuntary manslaughter if someone is killed here. By the way, the sanitation department is the best department in the city as far as I’m concerned.”

“Tell people that.”

“I shall be glad to.”

UPDATE: In response to this article, Capt. Mark Causey of the Miami Beach Police Department advised that the intersection in question is scheduled for stop signs making it a four-way stop. January 31, 2012

Notes on South Beach Breakfast Meeting David's Cafe January 31, 2012

2012-01-31T07:28:00.000-08:00

David Kelsey moderated the Tuesday morning breakfast meeting, attended by 60 people from the community including city employees, neighborhood leaders, and other concerned citizens.

City of Miami Beach Commissioner Jonah Wolfson was the guest of honor. The main topic of his presentation was his recent motion on the commission, together with Commissioner Deede Weithorn, to depose longstanding City Manager Jorge Gonzalez, whom Mr. Wolfson described as an "intelligent" and "nice" man, but one who had not limited his actions to administration of the city as its "CEO" as per the city charter, but had effectually usurped political powers that the charter vested solely in the commission.

He was careful to describe his issue with the manager as impersonal and professional; i.e. based on the manager's "performance by results" rather than personal disaffection.

He said he found Mr. Gonzalez' management of the CIP, building, and police departments lacking, and referred to mistakes he felt the manager had made. He did not, however, mention persistent complaints specifically related to the code enforcement/compliance division of the building department, nor did he mention recent complaints about the manager's lack of oversight over the parks department.

He did point out that Mr. Gonzalez had virtually appointed Raymond Martinez as the city's de facto police chief after the retirement of the former chief, whose retirement was mandatory because of the kind of retirement benefits plan he had selected. Acting Chief Martinez, Mr. Gonzalez' personal pick for the job, has for some considerable time assumed the duties of police chief without the advise and consent of the Commission.

The eventual selection of Mr. Martinez by the city manager, by a process of "whittling down" the slate of qualified candidates to Mr. Martinez, and his confirmation by the commission, is considered as inevitable by many members of the community who are experienced with the ruling political faction presently figure-headed by Mayor Matti Herrera Bower, a close friend of the city manager. He did not mention the proposal to amend the city charter to provide for an elected police commissioner to make the police department more directly responsible to the electorate than its part-time representatives.

He made notice of the fact that Mr. Gonzalez has been outspoken on strictly political matters, such as whether or not Miami Beach should have casinos and a new convention center, and other matters for which he should have kept his political opinions to himself and followed the political will of the commission.

In fine, the commissioner said, the city manager had been in office for so long that he had inevitably become a "bureaucrat" who believed he was "bigger than the electorate." The administration rather than the elected representatives ruled the city as a consequence. Indeed, many residents of Miami Beach do refer to their city manager as "Boss Gonzalez," and he himself has mocked residents who think they are his bosses when he answers to the commission alone.

There should be term limits for professional administrators, said the commissioner, to prevent their becoming an entrenched political power. "Residents have been too casual about term limits" he observed, thus the beach has the longest standing manager in its history, having served eleven years to date.

Several issues were broached by members of the audience. For instance, it was asserted that the city manager had circumvented an existing committee or board created to deal with the prospect of a new convention center by appointing his own convention center committee in his eagerness to expend hundreds of millions of dollars on developers and contractors.

Mr. Wolfson responded that he was against any expansion of the existing convention center, noting that convention centers were proven to be not profitable in themselves, and that the only justification for them were for bringing more tourists dollars to town. He also voiced his opposition to placing a casino on the beach, an idea associated with the possibility of expanding the convention center. He said he did not want to see a "return to the less desirable heyday" of Miami Beach, and wanted to retain the "positive" aspects the beach had obtained since then.

He was asked what the commission intended to do about the unruliness of the crowd that descends on South Beach for so-called Black Week, euphemistically referred to as Urban Week. He responded that the commission had already spoken that issue, but that the proof of the pudding is what would be done; to wit, it had been decided that every little law would be enforced, and no permits would be issued for special permits. He admitted, however, that it was a fact that the solution to the Freaknik chaos in Atlanta, now inherited by South Beach, had been the massive towing of cars in cruising zones, the penalty for moving at less than 5 m.p.h. in those zones.

He was informed after the meeting that any publicity about enforcement of quality-of-life ordinances, and the law against refusing to obey police orders, would be considered a challenge to the urban culture all over the nation, and would result in greater numbers of attendees and arrests--part of the bling seen on the streets during the last even including the wearing of handcuffs on one wrist as bracelets.

Residents present applauded the Miami Beach Police Department's new sector-patrolling program, which has gone a long way to cleaning up the streets.

Why Not Really Let People Shop For Health Care Services?

2012-01-28T07:48:00.000-08:00

Christina Rexode's Associated Press article 'Physician, heal thy bills' was published today by the Miami Herald, wherein she urges people to shop wisely for medical services; for example, by asking providers to quote fees for certain services then consulting the Health Care Blue Book website to see if the quote is reasonable.

I have been advocating the mandatory publication of all fees charged by medical providers since the early 80s due to my experience in Hawaii with the Hawaii Medical Service Association, a non-profit Blue Cross Shield provider. Hawaii was subject to the state's Prepaid Health Care Act. HMSA was governed of course by doctors who had a hand in crafting the Act.

I was racked with a considerable co-payment, which led me to question HMSA policies, and, to become, in several respects, an "activist" for a brief period of time, with the result that the state ombudsman sent me a letter stating that HMSA had revised its contracts and promotional material, which he expected would help "hundreds of thousands of people."

The central issue I took up was the Usual, Customary, and Reasonable (UCR) method for calculating insurance coverage; Usual being what a provider usually charges for a particular service; Customary being what providers on the whole customarily charge for that service; and Reasonable being a a Formula for calculating the result in a particular insurance case.

When I asked to see the Reasonable Formula, I was informed by HMSA's litigation liaison that it was secret, i.e. "proprietary." I then asserted a novel "stakeholder's right to examine" that information as a member of the non-profit association. My request was denied and I was advised the only way I would ever see the Formula was by court order.

Now that was the background for my proposition that all providers of medical services independently and via insurance companies be required by law to publish the fees charged for all services via a national database searchable by the public.

My proposal naturally fell on deaf ears, despite the fact that the mouths associated with those ears spoke eloquently about "free market" principles, and "rational markets" whereby all consumers make "rational decisions."

I speak not only of Republican and Democratic politicians, but of economists who falsely claim they are not motivated by political prejudices. Hillary Clinton's notorious committee on health care refused to even receive my suggestion, which I urged as an important step in dampening rampantly rising medical costs.

Wait a minute. Is not this a free country? Why not let people shop?

# #

South Beach Anecdote: I was at Dr. Mereos dental office on Alton Road. I asked the assistant at the desk to quote me the price for root canals. After she gave me the quote, an elderly lady in the waiting room tugged at my shirt and confided that, if I went to a dentist on Arthur Godfrey Road, then I would save a great deal of money on a root canal. She slipped me the dentist's name and address before I left.

Armed Man Arrested In South Beach With NYPD Gear

2012-01-26T14:40:00.001-08:00

ARMED MAN ARRESTED IN SOUTH BEACH WITH NYPD GEAR

January 26, 2012
MIAMI BEACH

By David Arthur Walters

Miami Beach City Manager Jorge Gonzalez wanted residents to think they had more than enough police officers on the force to deal with crime on the beach, and he cited the FBI Uniform Crime Report statistics to prove it, as if dealing with the seven major crimes on that report is all police officers have to do. But that is not even the half it. There are at least two dozen other crimes such as felony drug and weapons offenses that the police are concerned with, not to mention a myriad of misdemeanors including traffic violations. The city manager repeatedly refused to release statistics or address the frequency for those incidents for fear of scaring tourists away and investing more money in law enforcement.

To make matters worse, in the interest of increasing tourism revenue and reducing enforcement costs, he reportedly instructed the police department to stand down from enforcing minor, quality of life ordinances, a policy that is bound to eventually result in an increase in the major crime index. That policy of toleration and neglect has made South Beach, especially Washington Avenue, a sort of Wild West rife with crimes not on the major crime report, many of them missing the attention of mainstream media.

Residents and merchants outraged by the lawlessness are finally being heeded even though 85% of them have become too cynical to vote. Two city commissioners have made a motion to fire the city manager for his lax management style. And there has been a repeated call, completely ignored by the city manager and the commissioners, to amend the city charter to mandate the election of a police commissioner who would be directly responsible to the electorate instead of the city manager, who is, presently beholden to a part-time commission and weak mayor.

The police department is currently looking for another chief due to the retirement of the present one, and is bending over backwards to please merchants and residents; for example, by putting more flatfeet on Washington Avenue in order to crack down on minor offenses. On New Year’s Day that policy netted an arrest for serious crimes that will not appear on the FBI’s UCR-1 report; a drugs and weapons crime, which was not reported by mainstream media.

“Washington Avenue Beat Officers Lozano and Romero,” stated an MBPD Incident Advisory to merchants and residents, “while on normal walking patrol, approached an improperly parked vehicle with one male occupant in the driver’s seat with all the windows down along the 900 block of Washington Avenue at 4:09 pm. The vehicle had a visible NYPD jacket in the back seat and the subject was wearing a NYPD T-shirt. The officers made contact with the driver and discovered that the occupant was not a police officer. The officers asked the subject if he had any weapons and the subject responded ‘no.’ The subject gave the officers consent to search the interior of the vehicle. As you can see from image 0877, the top stock of a Tec-9, 9mm machine gun was clearly visible and within a arm’s reach of the subject. The subject was arrested. The Tec-9 had a fully loaded magazine. Search incident to arrest, revealed additional police paraphernalia.”

Police Report 2012-293 (the 293^rd report on the first day of the new year!) identifies the subject as one James F. Cannata, 49, of Bronx, New York, who was charged with possession of a machine gun (Tec-9), possession of a small bag of marijuana, possession of a submachine gun (Tec-9) and seven counts of possession of ammunition. The ammunition appears to be hollow-point bullets, designed to expand and stay within the target to do more damage, reducing the possibility of through-and-through penetration and therefore collateral damage. The weapon charges fall under Chapters 790.235 and 790.221 of the Florida Statutes. 790.235 prohibits the “possession of firearm or ammunition by violent career criminal…regardless of whether such person is or has previously been sentenced as a violent career criminal….” The weapon may be any kind of weapon or device including a tear gas gun or chemical weapon. The penalty carries a mandatory minimum sentence of 15 years in prison. A police department source declined to reveal the man’s criminal record; given the nature of the charges, he must be a convicted felon. Section 790.221 prohibits the “possession of a short-barreled rifle, short-barreled shotgun, or machine gun,” and carries penalties that vary according to the convicted person’s criminal record.

The police report is somewhat flawed inasmuch as the weapon seized is not a Tec-9, a semi-automatic handgun once favored by Miami’s Cuban and Jamaican drug gangs and made notorious by such events as the Columbine High School Massacre. A semi-automatic weapon is one that reloads itself and requires repeated pulls of the trigger to fire it. Converted to a fully automatic machine gun, the firing continues as long as the trigger remains pulled. The Tec-9 converted to fully automatic sprays bullets all over the place hence is inaccurate and dangerous to people near the target; in fact the Miami Beach Police Department range master once turned down a gift of several Tec-9s that had been confiscated from drug dealers by the U.S. Marshal’s Office, because the weapon is too dangerous for police use. Intratec, the manufacturer of the Tec-9, has gone out of business.

The gun actually confiscated from Mr. Cannata is a Kel Tec Sub 2000 foldable semi-automatic rifle manufactured by Kel Tec CNC Industries of Cocoa, Florida, a company that happens to be the third-largest handgun maker in the United States. It is popular with police officers in some jurisdictions because their pistol magazines can be used in the rifle, which provides them with greater accuracy at a longer range than a pistol. It is not made as a “submachine” gun, which would be a fully automatic machine gun that uses pistol magazines; we are not aware if this particular gun was converted to fully automatic. Campers and hikers like the Kel Tec Sub 2000 because the carbine can be folded up and put in a backpack, just as Mr. Cannata had his folded up and stuffed in a bag in his car..

All and all, we surmise that Mr. Cannata was posing as a New York cop, to himself at the very least, for to so in Florida would be absurd. We notice that he was not charged with impersonating a police officer—he admitted he was not a cop despite the paraphernalia in his possession, including a NYPD lieutenant’s badge.

We can only imagine what brought him to Florida and South Beach. The fine weather and the reputation of South Beach as a Wild West were undoubtedly factors. Who knows? Maybe he was on vacation from ripping off drug dealers in the Bronx. A police department source discounted the notion that he was hanging around Washington and 9^th to rob the Bank of America or the Seven-Eleven. It is even speculated that he a deep-undercover cop. Records online, at the Miami-Dade County Clerk’s Office, show that he was released on his own recognizance on January 7 even though he is being prosecuted for nine felony counts and one misdemeanor count, and that he has applied for indigent status.

The City of Miami Beach, which the FBI in recent years ranked as the third most dangerous small city in the nation, used to try to protect its South Beach from bad influences, or at least to keep those influences secret so that potential tourists and the celebrities that once drew them to the beach would not be frightened off, as European tourists were after a world-famous fashion designer, Gianni Versace, was murdered on the doorstep of his Ocean Drive home. The advance of civil rights primarily in favor of vagrants and criminals had already been an impediment to keeping the beach safe for the vast majority of people, yet much could still be done to protect the beach from being flooded with miscreants of all sorts, including wealthy criminals from all over the world and its very own corrupt public officials. An elderly gentleman who lives in a million-dollar condo on the beach believes there is still a chance to turn South Beach into a Singapore, by setting up checkpoints to search for drugs, weapons, and wanted persons, and by strict enforcement of local ordinances.

But city officials, eager for more revenue, discovered that a reputation for liberality and tolerance for the city’s crown jewel, South Beach, is not such a bad thing after all, and opened up the gates to the backwash. South Beach is a virtual Wild West Back East, and Washington Avenue is Main Street for the showdowns. It is no wonder that cops seem trigger-happy given the pervasive threat to law and order on the beach. Florida is a gun-loving state to begin with. There are more guns than residents in Miami; try as you may, you cannot take the Miami out of Miami Beach because “this is Miami, bitch.”

Bad news is good news nowadays. The man who died in a hail of police bullets during Urban Week was wanted for shooting a victim in the head during a filling station robbery upstate. This Wild West Back East has few real cowboys, but that is all right. Just send in the clowns. Hip-hop to gangsta’ rap. Impersonate gangsters the best you can, bringing a gun for good measure. The talent scout shot dead by a cop in front of MED Pizza, a block and a half from the police station, because he refused to drop a loaded gun that he was pointing at the cop, had no criminal record. His bodyguard also packed heat.

Who would come to South Beach unarmed if he knew what was really taking place on Washington Avenue? “Yo, man, let’s go to South Beach tonight. Bring your gun.” The night worker at MED Pizza calls the late-night Washington Avenue crowd “The Bullshit People.” A fully armed actor just might pull the trigger to fulfill his role. Watch out, Marshal Dillon, this is the Wild West Back East.

18-Year Old Impersonates Cop in South Beach

2012-01-26T14:35:00.000-08:00

18-YEAR OLD IMPERSONATES COP IN SOUTH BEACH

January 26, 2012
By David Arthur Walters

One never knows what imposters are up to until it is too late. Some of them are relatively harmless, wayward youth who are ambitiously overcompensating for an inferiority complex, usually blamed on their fathers. Residents and merchants received this Incident Advisory from the Miami Beach Police Department:

“Detective Oliva from the South District CST squad was patrolling the South District in undercover capacity when he observed a white Ford Crown Victoria resembling an unmarked police vehicle driving alongside of him. As Detective Oliva made eye contact with the driver he noticed that the driver was simulating police activity by typing on a laptop computer within the vehicle. Detective Oliva began a conversation with the subject who continued pretending he was a police officer by using police jargon and saying he was a cop here in South Beach. The subject at one point told Detective Oliva to “put your seatbelt on”. Detective Oliva did not recognize the subject as a Miami Beach Police Officer. Fearing the subject would possibly commit a crime involving the impersonation of a law enforcement officer, Detective Oliva decided he would create a story regarding drug activity in the area. After hearing the story, the subject said he would investigate and begin looking for the “suspected” drug dealer. At that time Detective Oliva advised over the police radio that he had a possible police impersonator and requested marked units to assist with a traffic stop. Officer B. Maher responded and together with other SIU Detectives conducted a traffic stop at the above location. Further investigation revealed the subject had in his possession a loaded .380 caliber Ruger pistol under the passenger seat, a Taser X-26, a set of handcuffs, a radio, an Osceola County Police badge and several police T-shirts from the same county. The subject was arrested and transported to MBPD for further investigation. A computer check revealed that the subject was arrested in September 2011 for impersonating a Physician’s Assistant here in Florida which made national news. The subject is still awaiting trial in that case.”

The subject here is Matthew Thomas Scheidt, 18 years of age. He was charged with impersonating a police officer, carrying a concealed firearm, and carrying a concealed weapon.

His previous impersonation escapade in Central Florida got national press attention for its similarity to the romantic imposter case best known to the public from the movie Catch Me If You Can, based on the true story of Frank Abagnale, Jr., who conned people out of millions before he turned 19 and wound up as a highly regarded F.B.I. consultant, as absurd as that might seem.

The youthful South Beach imposter had previously pretended to be a physician’s assistant at a Central Florida hospital for five days, working in the operating and emergency rooms, examining patients and providing them with care including the application of CPR. The hospital made the usual claim hospitals make after the like events, insisting that all patients got the care they needed. When confronted with his imposition, Mr. Scheidt said he was on a secret mission as a deputy sheriff.

The young man’s conduct was incomprehensible to his dad, who said he did not know whether his boy needed psychological help or not. He should have been “Baker Acted” if he did; i.e. turned over to psychiatrists for examination.

Kids impersonating cops are a dime a dozen. It is relatively easy for them to lay their hands on police officer paraphernalia including guns. Success by any means is inculcated in our young from an early age. They are told they can create themselves, be anyone they want to be, even president of the United States in this great nation of ours. So we should not be surprised if the striving for superiority becomes inordinate in some of them given their circumstances and genetic dispositions. Furthermore, they expect instant gratification and are addicted to adrenaline rushes thanks to the media. Being a cop is presumably exciting and more than compensates for feelings of inferiority. Like Mr. Scheidt’s father, we cannot say if this sort of behavioral phenomenon is due to a psychological disorder or not. Nor have we been able to obtain a definitive statement from a psychiatrist. Some psychologists allude to the imaginative, ambitious behavior as “psychopathic,” as if it were, in updated psychological jargon, “sociopathic,” but that descriptive term does not fully fit the bill. Neither does the so-called imposter syndrome, most often used in reference to females who harbor feelings of inferiority hence feel that the superior personalities they assume are actually phony.

This particular wayward youngster obviously wanted to be an authority and was somehow motivated to skip all the steps needed to become one. He did not appear to be out to con people out of millions. Maybe he planned on advising people to fasten their seatbelts and the like. Or just maybe he would attempt to apprehend gunmen who frequent Washington Avenue and get in a gunfight with one of them. Who knows? If he is deemed sane, perhaps he should be sentenced to take the police academy course and pass the examination, or serve five years in prison.

The case of Mr. Scheidt reminds us of the boy who stole a bus because he wanted to be a bus driver. Mind you that there were several boys doing that in Florida, but 18-year-old James Harris, dubbed a “transit freak” by a Miami-Dade Transit officer, got the most media attention. He acquired a genuine bus driver uniform, swiped a bus and returned it to the barn after his shift, presumably with the fares collected and absent any customer complaints. After being arrested for that run, he used the same uniform to steal another bus from another depot, this time driving it thirty miles away to Florida City. Transit officials tracked the bus down with GPS. The young man fled and was not to be found. Security cameras showed him making out with a man on the bus. Now there was a fellow who knew exactly what he wanted to be, so perhaps he should be sentenced to a bus-driving career.

Another peculiar case of impersonation is that of Rufus Hawkins, a more mature man at age 24, who was charged with practicing law without a license i.e. impersonating an attorney for several months in an Orlando court. The case was admittedly not that peculiar to the licensing authority, the Florida Bar, for it handles scores of unauthorized practice cases very year. Mr. Hawkins was arrested after a judge noticed that his pleadings were a mess and questioned him about his credentials—a list of licensed lawyers can be viewed on the Florida Bar website. A client objected that she wanted him to continue with her case anyway. He said that he was an “attorney-in-fact,” something that a licensed attorney claimed does not exist although it does: you can give a non-attorney a power of attorney to do something as your attorney-in-fact, but of course he may not act in that capacity as an attorney-at-law. Mr. Hawkins was sentenced to a day in jail, already served, and two years probation. I recommended that he be sentenced to go to law school and pass the bar exam or do two years in jail. He prefers to be a non-lawyer advocate:

“Sadly,” he said in an email, “the bar and the power structure have to continually work to protect the legal system from the non-lawyers and the public, not protect the public from the non-lawyers. They lied about, and, at first, I thought it was all personal; however, after I was welcomed into the family of non-lawyer advocates, I learned, that is just what they do. They had to make up something in an attempt to hype up the public and make them fear me, little did they know, I was more embraced by the public because the majority of the public have been harmed by lawyers and the injustice in the legal system.”

When Bank Robbery Is Not A Crime In South Beach

2012-01-26T08:09:00.000-08:00

WHEN BANK ROBBERY IS NOT A CRIME IN SOUTH BEACH

January 26, 2012
By David Arthur Walters

There have been numerous shootings in Florida’s chic South Beach district lately including police shootings that killed men who were either armed or pretended to be armed. And a tourist was beaten to death with bare fists on the sidewalk outside a pool hall while bystanders watched and took a video of the incident. Therefore the following January 23 Incident Advisory of a “bank robbery” caused some excitement although the bank has been robbed before and its busy ATM machines are infamous for robbing tourists when the machines are tampered with by crooks.

“This morning at approximately 0915 hours, the Bank of America at 930 Washington Avenue pressed their panic alarm button indicating a bank robbery was in progress. Sector 2 + Sector 3 police officers saturated the area. The subject stated he was armed with a firearm to the bank teller and demanded money. The subject departed the bank prior to our arrival. Bicycle and ATV Officers located and took the subject into custody along the 1100 block of Washington Avenue.”

The subject was 26-year-old Arsenio Jamond Johnson. His mug shot is displayed on a website with others for the admiration of facial tattoos. A detractor on a popular social media site accused him of impersonating a black man, as if he were not black enough; otherwise not much information is available. He was most previously arrested for trespassing in Hillsborough, Florida, where he refused to name his birthplace when arrested. He was released there on $500 bond, some confidential information was received—probably his medical records—and the prosecutor dropped the case.

As for his subsequent arrest in Miami Beach for bank robbery, it appears that he was impersonating a bank robber and not really a bank robber. We are advised by the Miami Beach Police Department that he was deemed to be a ‘Baker Act.’ “He will be sent for evaluation and probably not be formally charged with the robbery.” Indeed, he is probably back on the street by now.

The Baker Act legislation provides that mentally ill individuals not be treated as criminals, e.g. restrained like criminals, if they are of no danger to themselves or others. They may be involuntarily committed by law enforcement officers to a receiving facility for psychiatric evaluation but cannot be held for more than 72 hours, at which time “the patient shall be released, unless he or she is charged with a crime, in which case the patient shall be returned to the custody of a law enforcement officer.” On its face, that provision, in Chapter 394 of the Florida Statutes, allows considerable discretion to police officers. An officer on the scene described Mr. Johnson as a “crazy dude.” Considering the facts known at this time, that he walked into the bank in broad daylight and left on foot, and was apprehended less than a minute later, two blocks away on the very street where the police station is located, we may with good reason conclude he is mentally challenged, and make a mental note of the Baker Act in case we do something stupid someday.

On January 20, two days prior to the Bank of America “incident” (it is no longer a “crime”), the FBI arrested one Cedrick Deon Swasey, 31, a convicted felon, for his role in the September 21 robbery of the Wells Fargo Bank branch at 1901 Alton Road in South Beach, a more suitable location for non-Baker Act bank robbers. Mr. Swasey was dressed in fatigues and fired his gun during that robbery. Other suspects and persons of interest are still being sought in the case.

In Re Motion to Dismiss Miami Beach City Manager

2012-01-22T18:05:00.000-08:00

January 21, 2012

Commissioner Jonah Wolfson
Commissioner Deede Weithorn
City Commission
CITY OF MIAMI BEACH

Subject: Motion to Dismiss City Manager Jorge Gonzalez

I understand that the City Commission shall entertain your motion to dismiss City Manager Jorge Gonzalez after reviewing his record and any other information that might be forthcoming, although that record and information apparently does not matter, at least not to Mayor Matti Herrera Bower and Commissioner Jorge Exposito, who have, I am informed, declared their undying support for Mr. Gonzalez. And they are probably not the only ones, his retention said to be a foregone conclusion wrought by the ruling machine. He himself said, at a Civic Circle meeting some time ago, that he would stay as long as he likes, and mocked residents for thinking that they are his bosses--indeed, the commissioners and not the residents are his bosses. His confidence reminded me of Boss Pendergast's Kansas City manager, whose retention was so foregone after periodic reviews that he once inadvertently gave his acceptance speech prior to the council being polled.

Nonetheless, it is high time to publicly review Mr. Gonzalez' performance, and in doing so I pray that you will hear anyone coming forth to praise or blame him for his conduct, and offer evidence in support of their feelings. My own judgment is suspended, although I have persistently criticized him. I blame him for what I perceive to be his arrogance, for which the structure of our system is partly to blame, and for his failure to diligently oversee departmental fiefdoms, whose heads are as arrogant as he because no one holds their feet to the fire. In fine, people do not care because they do not have to care. At least the commissioners care for the fifteen percent of the electorate who have elected them; sadly, the will of those who have become too apathetic to vote are ignored.

I attach an updated (as of today) investigative file involving one and perhaps two departments that have in my opinion lacked adequate supervision. There are two others that I may submit files on in the event I believe the performance review will be seriously conducted.

Sincerely,

David Arthur Walters

cc. Jorge Gonzalez

Investigative File

http://www.scribd.com/doc/77351359/Inquisition-Re-City-of-Miami-Beach-Handing-of-Decrepit-Properties

The Complaint of Complaints About Government Of Course

2012-01-19T09:41:00.000-08:00

THE COMPLAINT OF COMPLAINTS

Filed January 19, 2012
by David Arthur Walters
Miami Beach

“Please don’t mention my name or anything that identifies me, like the business I’m in,” said the man who complained about the conduct of a city employee for my series on South Beach public affairs.

“I will keep your identity confidential,” I promised, “but I would rather put a picture of you beside his picture at the top of the article.”

“No!” He was terrified. “No, don’t do that!”

“Forgive me. I was kidding. I will keep you confidential. I don’t think you have anything to worry about. Your complaint is only one of many complaints I shall include in my series, and a small one at that. I don’t believe anyone with the city would bother you anyway.”

“You don’t know them!”

“Well, then, tell me about them.”

“Wait until you get a ticket on your car or business. You’ll see what I mean.”

“I don’t have a car or business. Did that happen to you?”

He pursed his lips, grimaced angrily, saying nothing.

“You know, many people have told me they are afraid of retaliation, but I have never found an instance of that happening,” I said.

I then remembered a private party who said a department head had threatened to deprive him of a valuable benefit if he talked to me about his department, a threat which I thought might be a felony, and a city worker did lean his head out of the window of his truck the other day and yell “bitch” at me, but that was nothing given the number of people bitching about government.

“Who would want to report it?” my informant asked. “Wait until you get your apartment trashed for complaining about trash, and then talk to me about it! If it is reported, they will deny it, and find another way to get at you again.”

“I really have trouble believing that city workers would want to do anything at all against you for complaining about bad service. This city is not run by Tamerlane.”

“Tamer what?”

“Tamerlane. If residents complained about how he ran Samarkand, he had them beheaded, and the same went for tenants of his shopping center, and he advertised his cities with mounds of human heads. Only the wise men of a small tribe were allowed to criticize him, so it is said he loved the truth. But the most that would happen here, in your case, if they did know you, is the worker would be talked to, and he would make an excuse or lie about it. It’s just another customer complaint, and they must get hundreds of them.”

“Customer, you say? Are you crazy? There is no competition left in that business.
I’m telling you, be careful with these people. You don’t know them. I’ve been doing business here for twenty-eight years. They are the worst. Everybody knows that. They do what they want. Nobody manages them the way they should be managed, and the managers are in on it.”

“What are they in on? I want to know about that.”

“Never mind. I’ve seen your stories. You had better look out, because one day someone will come up to you like this,” he said, putting a finger in my side, “pull the trigger, and walk away.”

That reminded me of the fool on the bus who loudly bragged that he was wanted by the South Beach police because he knew that a drug dealer who ratted on corrupt cops to internal affairs had been assassinated on the beach by cops who planted a water gun on him. People watch too many movies, I thought, and noticed there were fewer drug dealers on the beach lately.

“Activists around here complain all the time about public employees and officials, and nothing has happened to them. With all due respect, I think you are mistaken. Unless people speak up and complain about misconduct, there will be no improvements. He who ignores evil is good for nothing. You know, civilization is the product of complaints.”

“They are the f—king mafia! That’s my complaint, but don’t you mention my name!”

# #

Miami Beach Official Insults Merchant for Complaining

2012-01-18T14:00:00.000-08:00

Photo of Pissing Wall before officials remove parking permit machine due to stench

PUBLIC OFFICIALS INSULT MERCHANT FOR COMPLAINING ABOUT DANGER AT WASHINGTON AVENUE & 9TH STREET

Filed January 18, 2012

South Beach

According to a Washington Avenue merchant, who wishes to remain anonymous for fear of retaliation, six officials, two of them in city uniform, appeared at about eleven o'clock this morning in the public parking lot at Washington Avenue and 9th Street, apparently following up on a running three-year complaint that the lights there do not work, creating a nuisance and hazard for residents and visitors.

He said that when he saw the officials looking at the lights, he approached them to discuss the issue. but one man said, in a confrontational manner,"We fixed these lights all ready," and then he turned to the other officials present and said, "You see, these people make complaints, but they don't know what they are talking about, because we have fixed the problems."

The merchant was indignant, and said, "What? You are calling me a liar! I am telling you that the lights don't work!"

As a matter of fact, I have walked through that little parking lot every evening as part of a regular patrol for a story I am doing about improvements in the enforcement of ordinances. Every time I have traversed the lot, including the last five nights, there has been no lighting.

Absent moonlight, the area is perfect for muggings and hijackings, and it also provides cover for urination at the Pissing Wall, which stinks so badly that the city removed a parking permit machine it had newly installed there. The darkened area has also provided cover for vagrants and dope deals and prostitution for many years. As long as I can remember, for the last three years, the place has been dark at night.

I too was informed by email by Public Works that the light has been fixed. After I insisted that it had not been fixed, I was informed a couple of days later that a private contractor had appeared to fix the light, and that he said the city was remiss in fixing things, apparently due to budgeting problems. He promised one tenant that he would return the following morning. to the best of my knowledge, he did not return.

# #

Does Evil Lurk in South Beach Flamingo Park?

2012-01-18T09:41:00.000-08:00

January 18, 2012

Subject: Neighborhood Associations

Robert ParcherCity Clerk
CITY OF MIAMI BEACH

Aloha!

I may be mistaken, but it seems that a page that once appeared on the city’s website has been removed. I am speaking of the web page setting forth the formal process of obtaining the city’s “recognition” and “registration” of a new neighborhood association, a function performed by the City Manager—I recall the page referenced his assistance, Lynn Bernstein.

The linking process is: “Neighborhood Info/Associations/Register an Association.” The means of registration no longer seems to appear as it once did.

1. Please direct me to the page on registration that we were once familiar with, or provide me with a copy or image of the text of that page.

2. Please provide me with a copy or an image of the registration form then in use by the City Manager’s office, along with copies or images of any instructions or policy statements regarding the approval and registration of new neighborhood associations.

Links to pages, or PDF or Word.doc will do nicely. In the alternative, I can pick up photocopies at City Hall. I expect that personnel should easily lay their hands on the records needed. I ask that any charges or fees be waived, keeping in mind that I am not compensated for my pro bono research and live well below the poverty level to keep myself honest in my avocation.

Yours truly as always,

David Arthur Walters

Independent Journalist

January 18, 2012

Subject: Neighborhood Associations

Jose Smith
City Attorney
CITY OF MIAMI BEACH

Mr. Jose Smith:

Regarding my January 18 request to Mr. Parcher for public information (above), I pray that you will provide me with your opinion on the legal standing of neighborhood associations by addressing an opinion circulating in the community, that the so-called Flamingo Park Neighborhood Association, which is not registered as an entity with the State of Florida or with the United States, but is registered with and is recognized by the City of Miami Beach, as is stated on the city’s web site, is in effect, given the behavior of its officers and directors, as is evidenced by such acts as formal resolutions that closely resemble those made by city agencies for consideration by the city commission, a political creature of the city and a city agency. Now if someone were to bring a lawsuit against the association, would they then name the city as well as the individual directors and officers?

Said association resolutions purport to be the result of hearings conducted by the association upon which a consensus is somehow achieved. I understand that the hearings are attended by city officials—I am unaware of any formal charter or by-laws etc setting forth the process and mandating the keeping of records by which a consensus is reached. This virtual city agency purports to serve all residents and merchants within the “historic” Flamingo Park Neighborhood District, which I assume is a formal political designation, laying between Lincoln Road and 5th Street, and Alton Road and Washington Avenue, including the members of Flamingo Park West Neighborhood Association, Inc., a non-profit, state-registered corporation—on January 16, its president, Sam Carson, disclosed to me in writing, that the ‘West’ association is actually “administered by the city.”

Now my attention was brought to this particular neighborhood association by way of a rumor circulating, which I hope you will address and persuasively dismiss, that its directors and/or officers and certain city officials have an interlocking arrangement with the Miami Beach Community Development Corporation and a political action committee that allegedly used MBCDC funds, provided in part or whole by the city, to campaign for the long-ruling political faction now headed by Mayor Matti Herrera Bower. The boss of the faction appears to be an affable gentleman I once met, by the name of Denis Russ, and his agent in the city manager’s office appears to be one Lynn Bernstein, an assistant city manager, who seemed to defer to Mr. Russ during a city meeting she led and which I attended.

I certainly hope that the interlocking-conspiracy aspect is an “urban myth,” and that any impropriety is in appearance only, hence I am making this inquiry to get to the bottom of it.

Your cooperation and advice will be sincerely appreciated.

Sincerely,

David Arthur Walters

Independent Journalist

Thanks to Miami Beach Civil Servants re BROKEN BEACH Series

2012-01-13T10:07:00.000-08:00

Dear Miami Beach Civil Servant:

Thank you for the information you have provided me both on and off the record for my 'BROKEN BEACH' series. Please keep it coming. If you wish to use proxy servers to transmit information anonymously, I may be able to recommend trustworthy services.

It is true that "there is no one without sin." I am not asking you to rat out your friends unless the conduct of those friends is ruining our community and bringing the city government and its departments and divisions in disrepute. And please know that I am not out to get the City Manager, which some of you have praised, saying that his weakness is in overseeing the several fiefdoms. I am simply taking him to task polemically because the buck stops with him due to lack of oversight of his function by the Commission; I am willing to present his side of the story as well if he chooses to speak up.

Best Regards,

David Arthur Walters

A BRAND NEW MAXIM

http://www.scribd.com/doc/78164739/A-Brand-New-Maxim

Traffic Cop Interviewed on SOBE Traffic Gone Plumb Crazy

2012-01-11T10:36:00.000-08:00

INTERVIEW WITH VETERAN SOUTH BEACH TRAFFIC COP

The Traffic is Plumb Crazy

January 11, 2012
By David Arthur Walters
THE MIAMI MIRROR

MIAMI BEACH—I buttonholed veteran Miami Beach traffic cop Alan Chin at Starbucks on West Avenue, where he meets regularly with other motorcycle cops to discuss the business of the day. Some people think cops are goofing off when seen in coffee houses, but that was not the case when I listened in on their discussion. They were not even drinking coffee, which all cops are supposed to love, so I was attempted to offer to buy them some, but then thought it would be inappropriate.

“Excuse me, Officer Chin,” I said after reading his nametag, “What is that wheel-like emblem on your shirts?”

“It means that we are in the motor unit.”

“You’re a traffic cop?”

“Yes, for sixteen years.”

“Do the cops in the squad cars also give traffic tickets?”

“Well, yes, they can, but we do most of the citations. We provide escorts, say, for inaugurations, and crowd control services, and we have other duties besides, so we are not always out citing traffic violations.”

“Is it true that the regular cops in the cars do not like traffic duty, and think it is beneath them?”

“It can be a hassle for them. They are out there responding to calls and going after the bad guys. We are more proactive, stopping all kinds of people—residents, tourists—it could be anyone.”

“But your job is just as dangerous?” I suggested. “I hear about a cop being murdered on a traffic stop almost every month.”

“Yes, that’s true. And if you noticed me leave and come back a few minutes ago, I went down the block to respond to an alarm at the bank.”

“So you could have encountered an armed robber?”

“Yes, but it was a false alarm.”

“I’ve been writing about traffic issues lately. There are accidents all over the side streets, and many people are getting run over on Alton Road. You know, pedestrians and cyclists are scared to death by the crazy traffic, especially around Alton Road. Old folks and even young merchants and their employees around there tell me they are afraid to leave their blocks on foot to get a sandwich.”

“Yes, Alton is a raceway,” he observed. “We periodically attempt to educate the public. Officers go out on the street in special uniforms, gather at certain places, where they do what they can to bring the public’s attention to the problem and educate drivers as to what they can do about it.”

“I saw a driver nearly run over a woman carrying a baby in her arms in the crosswalk by the Southpointe charter school on Alton.”

“We watch that place during certain hours.”

“You used to have a decoy there.”

“Yes, but drivers got wise to it, knowing there was nobody inside.”

“Maybe you could put a dummy in it that moves around. Do you believe handing out tickets like candy will help educate the public?”

“No, not at all,” he said. “I’ve been a traffic cop for sixteen years, and let me tell you that tickets do not stop the violations.”

“I don’t drive, but I have heard people complaining about getting a ticket, and swearing they will never do it again,” I argued. “I figure each person that gets a ticket will tell a hundred people.”

“Oh, that will wear off, and they will do it again and again. We stop the same people around here for the same violations.”

“The problem with careless driving seems to be getting worse and worse,” I offered. “I associated it in one of my articles with what I call massive narcissism, with drivers so self-interested they stop looking out for others.”

“It is getting worse,” he confirmed. “Drivers tend to think of their cars as their private homes where they can do what they please.”

“How many motorcycle traffic cops are there?”

“Fourteen—seven on one shift, seven on the other; remember that we have other duties.”

“Do you believe that is enough?”

“There never are enough officers, but there are enough violations out there that each additional unit could bring in far more revenue than it costs. We could make the city a lot of money. How many we have depends on the administration.”

“One of my pet peeves with the city manager, when he was negotiating with the police union, is that he would have people believe that the major crime index should indicate what our law enforcement needs are, but that is not even half the story.”

“That is something we learn to put up with.”

“Thank you very much for speaking with me,” I said gratefully. “It is good to have the benefit of experience.”

“We meet here, as you know, so feel free to communicate with us.”

I was pleased to meet Officer Chin, and thought that it would be great if all police officers were as communicative in the interest of public education. There may be some characteristic difference between pro-active traffic cops, who deal with everyone, and reactive cops, who routinely respond to the offenses of bad guys. Still, the three best ways to elicit mutually beneficial information and eliminate misunderstandings is to communicate, communicate, and communicate.

South Beach Police Patrols Working So Far

2012-01-10T08:02:00.000-08:00

SPECIAL POLICE PATROLS ARE WORKING SO FAR

January 10, 2012
By David Arthur Walters
THE MIAMI MIRROR

MIAMI BEACH—Special South Beach sector patrols recently established by the Miami Beach Police Department have drastically reduced the number of vagrants, derelicts and panhandlers on the streets South Beach, particularly on Washington Avenue.

Washington Avenue had gradually taken on the appearance of a skid row due to a lack of enforcement of misdemeanor ordinances and ineffective cooperation between the police department and the city’s homeless outreach program, which has an ample number of beds and meals available for everyone who accepts assistance. When outreach personnel reach out to the homeless persons sprawled on sidewalks and in doorways, and they refuse assistance, the police may arrest them.

I walked up and down Washington Avenue once each evening for two weeks. I observed foot patrolmen actually working on the streets during the first ten days. I did what I could to assist—people who care should do the same instead of complaining that the cops do nothing about public nuisances.

On one occasion I pointed out a professional panhandler, who was working the McDonald’s door at Lincoln Road and Washington, to a police officer who was conversing with a man standing ten feet away from the panhandler. The hip-hop bum was a well-dressed, clean-cut young conman with a hospital-patient identification tag hanging around his neck, leaning on a walker while softly asking people for money. The officer looked surprised when I gave him a heads-up; he promised to arrest the man.

On another occasion I observed another professional panhandler working the same door. A drunk was sprawled across the sidewalk and playing with himself a short distance away. A police officer was chatting with people on Lincoln Road, about thirty feet away from the panhandler. I called the magic police department number (305-673-7901) given to me by Capt. Causey, the officer who serves as chief of the South District, and he reported that both the drunk and the panhandler had been picked up.

I observed a patrolman standing with arms folded, staring down a loiterer, perhaps a drug dealer or thief, outside the Starbucks near the police station. The man finally snickered and walked away. I spoke with the hardnosed cop about the vagrants that had overrun Miami Beach. He said the homeless had more rights than people with homes and jobs. I mentioned the vagrant called ‘The Masturbator’, whom he said he had arrested several times. I was surprised to learn there were several public masturbators on the streets.

Almost every time I walked by Walgreens on Lincoln Road and Collins Avenue, there were drunks passed out around the store or vagrants panhandling there, so I called the police and they were removed. Walgreens is so notorious for allowing drunks and derelicts around its busy store next to luxury hotels that they are called “Walgreens Advertisements.”

I have not seen any special sector patrolmen for the last three days, but I may have missed them during my walk. I was rather amazed to see no drunks sprawled on the sidewalks, even around Walgreens. I saw only one regular panhandler—the old guy with a cane who beckons people to talk to him around the police station then asks them for a dollar—but he was inactive. Two gnarly Cuban fellows, whom I had never seen before, were working the bus stop bench with beers in paper bags for “fifty cents for the bus” just south of the police station. An obese woman, a new arrival sitting in a doorway on Lincoln Road, was holding out a large paper cup. But that was it. Gone were the derelicts and gay hustlers from the nooks and crannies of the historic post office. Gone were the hopelessly homeless people huddling in urine-drenched doorways. Gone was The Masturbator from the public parking lot at 9th and Washington.

The word is spreading up and down Washington Avenue, at least, that the cops are “doing something” instead of “doing nothing as usual.” Let us not forget that the cops have virtually eliminated the open drug dealing on the avenue—there used to be dealers on nearly every block. We should know that much of what the police force actually does in South Beach is invisible because it is done undercover.

The cops have been shooting and killing bad guys for some time on or near Washington Avenue, which has also become the main street of a sort hip-hop Dodge City in need of a Marshal Dillon, and the bad guys have been shooting each other dead. Boss Jorge Gonzales, the city manager, believes we have plenty of cops since the rates for major crimes like murder and rape are holding steady or going down. But working the seven major crimes on the F.B.I. Uniform Crime Report is not all the police department does. Of course when a cop kills a suspect when s/he perceives a threat to life, the shooting is not counted on the major crime index because it is not a murder.

Boss Gonzalez has repeatedly declined to provide statistics on lesser crimes. Naturally, when the cops do a great job arresting dope dealers and prostitutes, and detecting and arresting people for other crimes, the crime rate goes up, something that might scare tourists away. When the rate goes down, that could mean the cops are not doing their jobs efficiently.

I hold to the Broken Beach Theory, that the toleration of petty crimes and minor felonies condones and sanctions disrespect for South Beach, and will eventually result in an explosion of major crimes and resulting bad publicity. Let us face the awful truth. Our beach is broken. S/he who ignores evil is good for nothing. All the summaries of criminal incidents should be available on the police department’s website, as they are in Minneapolis, for example. What the people of South Beach do not know, because the authorities “do not want to hurt tourism,” will eventually hurt everybody.

# #

“I’m Matt Dillon, United States Marshal, the first man they look for and the last they want to meet. It’s a chancy job, and makes a man watchful…and a little lonely. “

UN ESCANDALO EN ENGLES! Cuidado Muy Peligroso! Trafico en SoBe

2012-01-08T08:11:00.000-08:00

A TRAFFIC SCANDAL!

READ ALL ABOUT IT IN ENGLISH!

http://www.scribd.com/doc/77499296/South-Beach-Traffic-Cuidado-Muy-Peligroso

South Beach Active Health Fitness Club - The Jaguar is in the house!

2011-12-28T16:03:00.000-08:00

SOUTH BEACH ACTIVE

SIGNATURE CLUB
1400 Alton Road
Miami Beach, Florida
305-909-6788

December 28, 2011

There is a new cat in town, in the form of a jaguar leaping across an orange sun, as depicted on South Beach Active’s signature health fitness club on the corner of Alton Road and 14^th Street.

The new brand and related operation is the brain child of the health fitness club’s president, Drew Chesler, and Ellen Chesler, his wife, who directs several of the club’s key functions. Although Ellen is the very picture of health and beauty, she prefers to keep a low profile, as does the jaguar in her native Brazil.

South Beach Active’s totem certainly fits its fitness business. The natives called this apex animal “yaguara,” which means “wild beast overcomes prey in single bound.” The jaguar is not as bold as the other cats but beware when she is hungry, for she is the most powerful cat in the Americas, known by early settlers as “the tigress of the New World.” The jaguar is a crepuscular animal, meaning she prefers to work out in the twilight, at dusk and dawn. She is famous for her solitariness, and for her affinity with water, having learned to swim over the ages, as well as for her overall agility and strength, including crushing jaws with teeth that go right to the seat of intelligence.

Drew is a local boy with family roots in Florida going back four generations. He graduated from Everglades High School in Coconut Grove, studied economics at the University of Colorado, built up an environmental services company from 2 to 1,000 employees and took it public before getting keen on the health fitness industry, which he served initially as a consultant, and then owned and operated a club for a decade. He is a high-technology enthusiast and inventor. His latest invention, iDESK SOLUTIONS, a front desk, paperless system for health clubs, is now up and running at dozens of clubs, and deals with major international clubs are in the works.

Drew is an easy-going, likeable entrepreneur. He also means business. He is devoted to the continuous improvement of the members’ health and fitness whatever that might take. He refers to his staff and the members as “the Committed Tribe.” He demands that his staff be fully committed to the tribe and proud of it.

“We don’t care if the members are young or old, able-bodied or disabled, fat or slim, or what color they are. We only care that they are committed to their fitness and we are committed to them,” he said.

No doubt South Beach Active will help bring the health club industry out of its big-box, transaction-oriented, churn-and-burn dark ages. Ironically, really caring about members as individuals is a niche business today.

I came to South Beach Active from another South Beach club where I had been a member for several years. South Beach Active supports the Silver & Fit program for seniors as a way of giving back to the community, and my insurance entitled me to a Silver & Fit membership at South Beach Active. I continued to pay dues and work out at the other club until I mentioned my situation to its manager and asked him if he could make some sort of accommodation in view of my longstanding membership. He simply pulled out a termination form: he was not interested in keeping me as a member, nor did he say goodbye.

Of course South Beach Active took some getting used to, but it did not take me long to like it. The machines are closer together, but there is a full array of old and new machines; I really like the older machines the older I get. The proximity of the machines on two floors makes working out feel more intimate, or “tribal” if you will. I picked a very slow time to work out, in the early afternoon. The club is open 24-hours—my neighbor, a personal fitness trainer who manages another gym, likes to come at dawn, but that is when I get most of my writing done. Of course there is a spin room, and a studio with all sorts of group classes included in the membership.

Drew bought several Woodway treadmills for us. Woodways are very expensive but well worth it, as walking and running on the slatted, tank-tread-like belts is very easy on the joints; the moving parts last practically forever, unlike the belts drawn over waxed hard particle boards on other treadmills.

Most importantly, South Beach Active offers individualized personal training with proven empirical results, and is currently adding more highly qualified personal trainers to its staff to keep up with demand.

As for the members I meet during the day, some are old, some young, some rich, some not so rich. There are celebs to be seen if you recognize them in gym attire, but members are careful not to gawk when they do; for example, Calvin Klein, Anna Kournikova, Jeremy Shockey, and Shakira. Amateur and professional body builders, male and female, come around from time to time. So does Hulk Hogan. Everyone is committed to working out, so there is not lot of parading around, showing off, and the chitchatting one finds at some gyms. Staff always some time for pleasantries and to whip up a tasty shake after your workout. It really is a “tribal” thing.

Last but not least is the Biotonic Vibe Studio with the vibrating Power Plates for “acceleration training,” which started out as a European thing. Doing various exercises on the vibrating plates allegedly “recruits” 85% of muscle fiber; the results claimed are amazing; including, for starters, getting rid of cellulite and varicose veins, and offsetting osteoporosis. I have not tried the Power Plates so I cannot vouch for them, but plenty of people have, including wealthy persons who have purchased the machines for home use. The packages for small group training on these machines can be expensive wherever you find them, but South Beach Active plans on offering unlimited small-group sessions for a very modest addition to its monthly dues. Other small-group training activities throughout the gym, such as “super-setting” muscle training workouts, are also planned for inclusion as an ‘extra’ in the future.

# #

The author:

David Arthur Walters is an independent journalist. Other than being a member, he is not related to South Beach Active or its principals in any away, nor has he been compensated for writing this True Reflections review. He has also written True Reflections reviews of his experiences at Crunch Fitness and Equinox Fitness.

Can Miami Beach Cops Shoot Straight Enough?

2011-12-10T08:19:00.001-08:00

CAN MIAMI BEACH POLICE OFFICERS SHOOT STRAIGHT ENOUGH?
Are Innocent Bystanders Relatively Safe?

http://www.scribd.com/doc/75312159/Can-Miami-Beach-Police-Officers-Shoot-Straight-Enough

The Editor has revised author’s outraged politically incorrect statements about the Virginia Tech shooting and the nature of some people MBPD deals with:

PLEASE DON’T SHOOT JANITORS AND COPS
Law and Order is the Sine Qua Non of Civilization

http://www.scribd.com/doc/75232815/Please-Don-t-Shoot-Janitors-and-Cops

Miami Beach Old Crony System Exposed

2011-12-08T13:10:00.000-08:00

READ ALL ABOUT IT!

MIAMI BEACH OLD CRONY SYSTEM EXPOSED AT LAS OLAS CAFE!

http://www.scribd.com/doc/34611056/Las-Olas-Conference-Report-by-David-Arthur-Walters

Casted in this feature article:

Jorge 'El Capo' Gonzales, MB City Boss
Lynn W. Bernstein, MB Assistant Boss
Raymond Martinez, MB Assistant Police Chief
Anonymous MBPD Detectives
Michael Gongora, MB City Commissioner
Deborah Doty, MB Neighborhood & Media Police Officer
William J. Bratton, Wise Police Chief
Katie Klose, MB Case Worker
Rudy Giulani, Former New York City Mayor
George Castell, MB Code Compliance Administrator
Denis Arthur Russ, MB Flamingo Neighborhood President
Ahmed Mohsen, MB Falafel Restaurant Operator
Prince Grigory Alexandrovich Potemkin, Russian Army Major-General
Luther Campbell, Rapper
Tiny Tim II, Gay Klansman & Herpetologist
Danny, Tiny Tim II's SO, Heir Apparent to Vast Fortune
Boss Pendegast
Boss Tweed
Kafka Insect

Autographed Print Outs Available for $25 including postage

Santeria Birdseed Spell Conspiracy Foiled

2011-12-03T07:45:00.001-08:00

WHY A BIRDSEED SPELL MAY NOT WORK

North Miami Beach City Manager Escapes Unbecoming Conspiracy
December 3, 2011

By David Arthur WaltersTHE MIAMI MIRROR

MIAMI BEACH—A December 1, 2011, Miami Herald report about a so-called Santeria birdseed plot by a police officer and a police department office manager against the North Miami Beach city manager for his plans last fall to cut police pay has left police officers in other cities who desire to magically influence their respective city managers wondering how to effectively cast a birdseed spell and speculating on precisely what effect the birdseed might have. Ernesto Pichardo, a Santeria obo or high priest, said the only birdseed ritual he was aware of had a prosperity objective.

Santeria is an Afro-Cuban religion that sacrifices animals to appease its gods and denies that legitimate Santeria practitioners ever have evil intentions when casting spells. Apparently a birdseed curse cannot work unless the person casting the spell has evil intentions. The veteran police officer involved in trying to get a janitor to spread the birdseed around the city manager’s chair in his office said she meant the city manager no harm and was sorry if he felt hexed. She apparently had heard about the use of birdseed from family members familiar with Santeria, and thought it might get the manager to leave the police department alone. After all, her son and daughter had moved out of her place after she put birds and birdseed in a cage on her front porch.

The meaning of birdseed in evil rituals is intuitively clear to us: it is intended as feed for a manager, to be spread around his roost in his coop prior to his being sacrificed to the god of police unions, at which time he would be roasted and devoured, forever after to leave the coppers alone.

Whether the birdseed would have had its intended effect is another question. Since legitimate Santeria practitioners never place curses on people to hurt them, an illegitimate priest would have to be consulted as to the precise way to cast the spell, for the smallest error can ruin the perverse plan. And there is always the chance that the spell can be neutralized by a counter-spell.

For example, a secret book of spells by an illegitimate Santeria high priest describes how to destroy an enemy at a distance by placing his photograph on top of some raw meat, preferably the liver of a calf, then pin the photo to the meat by stabbing it through with a kitchen knife, and bury the whole affair under a cherry tree. He notes that many gored photos of Fidel Castro were discovered buried under cherry trees in Cuba by police seeking fingerprints, and that Castro only survived because, although he is professedly an atheist, he is also a Santeria priest, an illegitimate one, of course, and has placed evil counter-spells against the good curses of his enemies.

Scooby-Doo poem by Cathy Dellinger

2011-12-01T08:37:00.000-08:00

SCOOBY-DOO

A night rarely passes the moon
without a thought of you wandering
amid the fields of clover.

And I smile as your tail wags in the distance,
far beyond my reach, my old man.

Decades spent watching you smile,
barking at the moon, taking your seat amid
a warm summer night.

You tasted my tears, touched my smile,
and filled me with joy.

Now you are gone, racing with the moon
as it waxes and wanes, licking my tears.

Now, you are gone, old man.

2011 by Cathy Dellinger

A White Paper on Miami Beach Police Department Reform

2011-11-30T10:59:00.000-08:00

A WHITE PAPER ON MIAMI BEACH POLICE DEPARTMENT REFORM

November 30, 2011

People who live and work on the south end of the City of Miami Beach, known as South Beach, believe they have a serious problem with the Miami Beach Police Department. The department has been doing a good job handling major crimes actually reported. Nevertheless, the City of Miami Beach, unbeknown to tourists and residents alike, has one of the highest crime rates of cities under 100,000 in population in the United States, in recent years scoring as high as the third most dangerous city of that size in the country. Greater Miami and its beaches have 12 million or more visitors every year. Many of the crimes in South Beach are perpetrated by criminals visiting from other, high-crime areas of Miami Dade County and nearby counties. Perhaps more than half of the crowd attracted by South Beach’s ethnic nightclubs on any given night has a criminal record. In any event, the residents and merchants of South Beach are wholly dissatisfied with the Department’s prosecution of lesser crimes, especially with enforcement of quality-of-life ordnances.

Unfortunately, the performance of the police department may appear to be far better or worse than it is because the Miami Beach City Commission, according to the information we have been able to obtain from city officials, relies on inadequate statistics provided by City Manager Jorge Gonzalez to make its policy decisions, and often ignores anecdotal information provided by members of the public, or placates the public with public hearings that have minimal results.

The City Manager regularly provides the commission with a copy of Part I of the Uniform Crime Report, which is a mandatory summary of information that the police department provides to the Florida Department of Law Enforcement and then becomes part of the national F.B.I. reporting system. Eight so-called index crimes are reported in the summary: murder, rape, assault, robbery, burglary, larceny, motor vehicle theft, and arson.

Although useful, the UCR has been deemed inadequate to fully assess police performance and prevent crime. In the late 1970s, the law enforcement community evaluated the UCR program and recommended a reporting program now dubbed the National Incident-Based Reporting System, a program that collects data on each crime occurrence and sorts the data on 46 specific crimes into 22 offense categories. Total incidents in these categories would be of enormous interest to the public in the City of Miami Beach and would enable the City Commission to make reasonable policy decisions on law enforcement performance and personnel needs. For example, the categories included simple assault, drug violations, liquor violations, curfew violations, loitering, disorderly conduct, driving under the influence, runaways, prostitution, vagrancy, and more. Until the NIBRS is up and running on a national basis, the F.B.I. receives data tapes from law enforcement agencies that participate, and that data is sorted into information provided in a “Part II” of the UCR.

Independent journalist David Arthur Walters questioned City Manager Jorge Gonzalez in person at a meeting of the Civic Circle in February 2010, and by way of a letter dated February 27, 2010, under the heading “The Political Arithmetic of Crime.” Mr. Gonzalez was then involved in negotiations with the police union, and was insisting that the police department was sufficiently staffed, citing recent crime statistics reports. In response to Mr. Walters’ several questions, he provided him with the Part I UCR report that he regularly gives the City Commission along with a summary statement to the effect that all was well. Mr. Walters had objected at the Civic Circle meeting that things were seemingly unwell when people were getting raped, robbed, and stabbed all his neighborhood—known as “Seventh Heaven” from its crack history and currently as “The Toilet” for complete lack of enforcement of dog waste laws—in the vicinity of wall-to-wall nightclubs two blocks from famed Ocean Drive. Such incidents were largely unreported by the only major daily paper, the Miami Herald, which purportedly has a friendly relation with the city’s power elite naturally interested in tourism. Mr. Walters had asked if NIBRS data was being collected and reported by the police department, to what extent could the police department data base be queried, and other questions:

“Before making a query, I would like to know what fields are available so that my query will be relevant. Do you have any studies available on the relationship between Miami Beach factors such as average age of population, liquor license density, and race, and the crime rate? Finally, in respect to the urban legend or myth that the media cooperates with the city in suppressing information about serious crime on the beach, in particular, the South District, are you in favor of implementing an online crime-reporting system, updated at least weekly, and including a brief description of each crime reported e.g. ‘woman beaten and raped by two assailants in the alley behind the Meridian Market,’ so that the public will not have to speculate about what happened in their neighborhoods?”

Mr. Gonzalez did not respond, other than providing the Part I UCR report, despite repeated follow ups. Mr. Walters referred to the matter to the mayor several commissioners, including a personal letter to Commission Michael Gongora (copy below). They did not respond. A public records request was made on the City Clerk for all information appertaining to crime statistics reported to the City Commission. Only Part I of the UCR was provided. More recently, the Florida Department of Law Enforcement confirmed that Florida is one of only five or less states that do not participate in the incident-based reporting program. The initial resistance to the institution of the NIBRS was that recordkeeping would have to be done at the expense of law enforcement. In any event, F.B.I. literature states that nonparticipation by states in NIBRS does not preclude local agencies from providing information to the F.B.I. We have contacted the F.B.I. for an interview on the matter.

At this time, based on the information and the lack thereof provided by public officials, people are left to presume that the City Commission and the public is making policy decisions in respect to the police power in the dark, so to speak, without the benefit of incident-based reports, the reason being that Mr. Gonzalez is receiving and cares only about Part I of the UCR, which he turns over to the commission with his usual positive comments, playing down negative changes. [Subsequent to the release of this paper, an internal source who asked around said that some incident-based information was believed to have been provided to Mr. Gonzalez, and that he presumably shared it with the commission, but exactly what information was provided or how specific it was is unclear].

The Miami Beach Police Department’s image has been marred lately by several incidents, blown way out of proportion by the press, which has apparently become disenchanted with its conduct now that the tourism industry is threatened. Of course we all may have some bone to pick with law enforcement and its lacks. Not only do police officers represent the authorities whom we may have cause to dislike or even love to hate whether or not the officers are at fault, certain concerned parties in South Beach have special axes to grind over the department’s deficient public relations, media relations, and neighborhood resources staff: e.g. media relations staff do not bother to respond to questions at all unless presented by mainstream media, and then good questions are perceived attacks on the department; neighborhood resources staff do not respond to email and phone calls unless the inquirer is perceived as an important person, most likely a merchant, suggestions are perceived as attacks on the department, and duties described on the department website are denied as existing. The deficiency is unsurprising in view of the fact that police departments have good reason to be paranoid no matter what they do.

In any event, certain facts are undeniable whether or not the public finds them objectionable in themselves:

1. First of all, the press disclosed that a few police officers were earning nearly a quarter-million dollars per annum with overtime. The high wages were credited to a shortage of police officers, which the City Manager, beset with budgetary woes, naturally denied. Furthermore, some officers appeared astonished by the figures; apparently the overtime largess was unevenly distributed. Still, Miami Beach residents were not unduly perturbed by the numbers, and some even declared that the officers deserved to be well rewarded for their contribution.

2. A former resident who returned to South Beach as a tourist and decided to revisit the notorious gay cruising zone in Flamingo Park was arrested when he called 911 one night to complain that an officer was kicking an alleged “park pervert”—someone who deviates from what is considered morally correct in the park. A merchant in the area, who did not want to be identified, said that policemen had behaved crudely on his premises, alarming his employees and customers. He said that several years ago the police department had hired men from small towns who were unsophisticated and did not appreciate homosexual customs. We observe here that the police department on the whole is not homophobic since the Police Athletic League youth gym in the park was scandalized because it is managed by a former gay porn star, yet did not fire the man. And the enforcement of ordinances in the park is notoriously lax: unauthorized beer guzzling and marijuana use is tolerated around the handball courts much favored by Mayor Bower’s late husband, Richard Bower. And the tennis court managers and tennis pros, according to a complaint filed with city authorities but not acted on, regularly smoked marijuana in the park; the City Manager’s office did not conduct drug testing as required by contract. However that may be, the public harping on police brutality towards a gay man in the park by the Village Voice’s counter-cultural rag in Miami, the New Times, created quite a stir in famously gay South Beach, where what was once counter-cultural is the predominant culture. Gays threatened to continue an exodus, a gay flight mainly to Ft. Lauderdale said to be caused by several lengthy New Times articles featuring gay-bashing coppers. Whether or not heterosexual sex acts in the public park would have been treated differently is unknown.

3. A man who had allegedly put a clothes hanger under his shirt and was swaggering along Washington Avenue, as if in Dodge City of old, in search of men who had previously stopped him from allegedly beating his female companion on the avenue was shot dead by an officer across the street from the police station after someone called in a report of a man with a concealed assault rifle. But the man had no weapon on him and was not seen, from the camera’s perspective, reaching for anything when confronted by the officer. The American Arab Anti-Discrimination Committee immediately accused the police department of racism although the deceased was not wearing Arab robes and headdress when shot and it is incredible that he could have been instantly identified as of Arab descent. The people in South Beach are so racially mixed that it is difficult to be an accurate racist—yet still today 911 staff ask of suspects reported, “Is he black or white?” Brown or tan or grey is unacceptable. However that may be, tourists eating in a diner at the scene saw the American Arab die in front of them, nearly lost their meals or cried. The officer was involved in another shooting a few days later. The union defended him, and he was eventually discharged when he tested positive for marijuana use.

4. A suspect fleeing in a car, with which he had allegedly tried to run over officers on a crowded street during the annual Urban Week aka Black Week celebration on Memorial Day, was surrounded by officers from several police agencies when his car finally came to halt at an intersection, perhaps because he was wounded; and then he was killed by a barrage of gunfire. A gun was found several days later in his car, and it was discovered that he was wanted for shooting a victim in the head during a filling station robbery. Although a few residents privately celebrated the shooting due to the outrageous behavior of Urban Week visitors, including annual murders, the fact that innocent bystanders were wounded by the gunfire did not sit well with anyone. Furthermore, the nationally broadcast of a video of the police shooting made the incident appear to be an execution; a display deemed very bad for tourism.

5. And then there was an ATV accident where tourists were run over and seriously injured on the beach late at night by a police officer showing off to a woman he had picked up at an Ocean Drive bar while partying on duty. He was fired, and negligent supervisors were also disciplined. This was the most appalling episode of all given the scenes of a gravely injured woman in the hospital and an ensuing internal investigation that exposed considerable monkey business due to poor management. Never mind the good work done by responsible and even irresponsible cops; this was bad, very bad.

Those incidents, given the press trumpeting, more than raised eyebrows, and the many good deeds done by dedicated police officers were forgotten in the process—we never see the press, when reporting on crimes, repeat time and time again the last five great jobs police officers did. Nonetheless, the main concern of South Beach residents, their prime pet peeve, is the historical lack of enforcement of quality-of-life ordinances, especially during big events such as Urban Week, which is perceived as a massive demonstration of utter disrespect for local residents and blatant contempt for law enforcement. Yet public criticism of the drunken and disorderly conduct and disturbances of the peace perpetrated during the all-black event is roundly condemned by liberal activists as motivated by racism.

The laxity in enforcement of the code during major events is not all the fault of the MBPD, as it stands down to please City Manager Gonzalez, who has served at the pleasure of the City Commission for over a decade. Mr. Gonzalez has extraordinary power given the fact that the part-time commissioners rely on him to keep on top of the city as a whole. He deserves ample credit for managing new developments over the last ten years, yet he deserves criticism for neglecting the oversight of certain functions delegated to old cronies. The City Commission has addressed the permissive lack of enforcement of minor ordinances by holding hearings on the issue and making the usual decision, not to do much about it for fear of losing tourist revenue.

A so-called town meeting was had on the Urban Week issue. The infamous Warren Harding/Calvin Coolidge Press Conference Method was used: any questions from the public had to be submitted in writing and approved of in advance before being addressed. Out-of-town suits were hired to come up with a plan, which is not to get rid of the event from hell but to tone it down by various means and profit from it. The plan was spoon-fed to the attendees of the carefully orchestrated town-meeting, some of whom were infuriated by the typical arrogance of the leadership. The majority of South Beach residents want to be rid of Urban Week, and would follow the example of Atlanta’s black leadership, of getting rid of it there when it was a Freaknik Spring Break event; the freakish behavior included pulling girls from cars and raping them on the hoods while the crowd cheered; massive towing was instituted to make sure the visitors knew they were unwelcome.

Another pet peeve of residents for many years is the permissive attitude towards the derelicts and panhandlers who pervade the streets, whose presumably homeless status entitles them to sympathy but not to a job or involuntary rehabilitation. The city responds to homeless people in various ways. The city shut down a South Beach shelter in an upcoming neighborhood, and has condemned a few flophouses to make way for gentrification, worsening the prospects for the poor and indigent. On the other hand, the city has provided the means for renovating an old building for eventual inhabitation by “formerly homeless” persons, and for renovating a couple of other buildings for affordable housing. A Commissioner has said that, as far as he was concerned, there should be no more low-cost housing on the beach. Many servants take busses from the mainland, travelling four hours per day.

Paperless workers at luxury establishments prefer to stay on the beach, where they are less likely to be picked up and deported. They tend to cram themselves into small studios in ghetto-like South Beach buildings, paying cash to no-questions-asked slumlords. At one point a building financed by the City was chock full of undocumented workers. Illegal immigrants are tolerated but silently resented by many South Beach residents, especially so by immigrants who complied with the law to enter the country to work and/or to obtain citizenship. Citizens and aliens with green cards recently complained that “the Italians” were bringing illegals in from Guatemala to place them in the kitchens of luxury hotels at low cash wages, getting rid of the legal workers or reducing their wages. That information was reported to local law enforcement and to Homeland Security in Washington but apparently no investigation was conducted or the complaints were deemed warrantless although the kitchens are filled with undocumented workers. Needless to say, the illegal workforce in South Beach contributes to unemployment of citizens and to homelessness, as well as to the crime rate since persons may be fleeing their countries because they are wanted for crimes; for example, the man who stabbed his wife 17 times in a South Beach tenement for illegal immigrants was wanted for murder back home.

In any case, the city will do its best to direct people to food and shelter, and has a team that “reaches out” to vagrants. Some of them obviously need another kind of assistance. For example, the man called The Masturbator, who was reached out to after he was seen masturbating on the street; he was back on the street with a new T-shirt and pants the next day. He is one of several colorful characters that provide South Beach with a bad image; but that is a good image to some; e.g. a commissioner during hearings on an anti-panhandling ordinance said that tourists who come “down here” do so because they enjoy such sights.

The most frequent complaint one hears in Miami Beach is not with the police department in particular but overall, with the politically powerful elite. Everyone outside of the civic clique agrees that the city is run by arrogant old cronies. That arrogance is partly due to the indifference of the electorate to most political issues and an individualism that precludes community participation. Your average man and woman on the street do not know the name of the mayor not to mention the city manager’s name. A candidate only needs 3,500 votes to be elected to sit on the commission. Most voters are older folks who back the choices of their neighborhood associations, which themselves are run by so-called arrogant old cronies. When an incumbent candidate before the last election was asked about getting young people interested enough to vote, she flatly said, “I don’t need them.”

Matti Bower, the present mayor, served as a commissioner for a number of years. The mayor presides over the commissioners as an equal, and the other commissioners usually serve part time while maintaining their professions and businesses. That leaves the handsome and suave professional city manager, “Boss” Gonzalez, in charge. It is difficult to break in to the system and become a member of the civic clique. One may attend his leadership academy, for example, and learn how to keep one’s nose to the rear of the camel ahead. In any event, one must behave appropriately for a long time to rise to the top of the pyramid.

An alternate route is to become an “activist”, a pejorative term for anyone who complains a lot about the system or who has questions and suggestions deemed to be complaints. Former Mayor David Dermer, a traffic ticket lawyer, was elected because of his activism against high-rise construction, which accelerated after he was elected and consorted with real estate developers. Mayor Bower, a dental hygienist, is his hand-picked successor. She was known while on the commission for her sympathy for the poor working class. People have been generally disappointed by her conduct since she became mayor, but she was re-elected, anyway, as that is how the Miami Beach system works short of concerted activism.

That being said, the police department ruckus has gotten the attention of thousands of residents, workers, and merchants, and presents a growing threat to the status quo. Miami Beach Police Chief Carlos Noriega, who has served as a police officer for 27 years, must retire by December 31, 2011, pursuant to his participation in an optional deferred retirement program. His second in command, Raymond Martinez, is presumably favored by City Manager Gonzalez, who is charged with conducting the candidate search, to replace him. But commissioners are reportedly losing their faith in Mr. Gonzalez and may prefer to confirm the appointment of an outsider. Miami Mirror correspondent David Arthur Walters addressed the city manager, asking if the public might recommend a particular candidate; he did not respond.

In November 2011 fifty people, half of them “activists,” the others police department staff, aides to commissioners, excepting Ed Tobin, who is overtly critical of the police department, and representatives of the neighborhoods, attended an event, organized by Officer Deborah Doty, pitching Mr. Martinez as the new chief. Apparently the invitees were carefully selected since many people concerned with policing were not alerted; evidently anyone interested had to scour a city website for information on upcoming events if not alerted by the event organizer.

A change was announced, a sectional policing program that had been tried three years ago, according to a new philosophy purportedly adopted without changing officers. Captain Mark Causey, the South Beach officer who is known for his good relationship with the public, whom police officers on the beat advise to call instead of the media relations and neighborhood resource staff if they want something done right away, handled the presentation.

Critics of the “new” plan complained that the concept was nothing new, would not be effective, and was fluff presented as part of a campaign to solicit support for Mr. Martinez’ expected candidacy for the office of police chief, which he would probably obtain through the usual old crony way of doing things.

Mr. Walters, who said he was not invited to the meeting, said that there should in fact be periodic, open political campaigns for the top position at the police department.

“The top office should be held by an elected official, a police commissioner to whom the chief must answer. That approach is the only democratic way for the public to render the police department directly accountable to the public given the old crony system where important decisions are made behind the scenes prior to a pretense of considering public input at hearings and meetings. I say it is democratic although liberals tend to dismiss the concept as right-wing because the public in crime ridden areas beg to have the laws enforced, and it is feared that stricter enforcement of criminal codes will gain winning votes for conservatives.”

He submitted a suggestion (copy below) to that effect, to Mayor Bower, with copies to the city commissioners, top police brass and the police department’s media office, the Miami Herald and the Sunpost. He asked Mayor Bower, City Manager Gonzalez, and City Commissioner Michael Gongora for their comments on his suggestion. They did not respond. His suggestion was not mentioned in press reports of alternative solutions suggested for improved policing.

“My suggestion was not bizarre at all,” said Mr. Walters, “and would be seriously considered by any progressive community. We have enjoyed elected sheriffs, as well as elected police chiefs over major cities, in this country. Our mother country, Great Britain, is far ahead of us on this major issue, as it is in the regulation of the legal profession—but that is another matter. The policy change, that is, elected police commissioners, in Great Britain, is the brainchild of leading political thinkers Dan Hannen and Douglas Carwell. Beginning November 2012, Brits will elect local police commissioners based on local manifestos for addressing crime. The Miami Beach City Manager and City Commission is not doing the job the public wants done, does not give a hoot what people such as myself might think or suggest, and the police department is wrongly scapegoated for much of the deficiency.”

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November 5, 2011

Mayor Matti Bower
CITY OF MIAMI BEACH
City Hall
Miami Beach, Florida 33139

Subject: Elected Police Commissioner

Honorable Mayor:

Congratulations on your easy re-election to office.

I petition you to begin a dialogue on my general suggestion that the City of Miami Beach should have an elected Police Commissioner to whom the Police Chief answers, and who sits on the City Commission. It is my belief that such a structure would allow residents to have a better voice in police affairs, something that is, in my opinion, sorely needed.

Many residents, not understanding that our Police Department is a top-down command structure whose Police Chief answers to the City Manager, who in turn answers to the City Commission, blame police officers on the street and their commanders for lax enforcement of the laws even when it is not their fault because orders have come down to go easy on minor violators in order to cultivate South Beach’s image as a wild, hedonistic destination.

That permissive attitude has had its commercial benefits but at considerable cost in terms of dollars and human dignity. For one thing it has cultivated disrespect for law and law enforcement officers, and contempt for the residents of South Beach, and has attracted perpetrators of major crimes to the area. For instance, we have had several shootings, involving individuals armed or pretending to be armed, swaggering down Washington Avenue as if South Beach were in Dodge City of old. And one man beat a tourist to death on the sidewalk in front of a pool hall as a crowd stood by; one of them took a video of the event and posted it on the Internet, an advertisement that will attract more ruffians to the city. I need not go on as you are well aware of the plethora of crimes committed, in part due to a lack of appreciation by city leaders for the validity of the Broken Windows and Monkey See Monkey Do hypotheses.

Another major issue is the internal management of the Police Department itself. I personally believe, from my recent experiences living in the South Beach ghetto known as “Seventh Heaven,” and by comparing my many experiences there to old reports of ineffectiveness, that we have an effective police force despite its failings. It disturbs me to see the media, especially the Miami Herald, harp on the perceived faults of the Department and a few of its officers while not reporting or reporting and quickly forgetting the good things that have been done by officers of the law to keep the peace.

Unfortunately for the residents of Miami Beach as a whole, a very small minority of them vote, the majority of them old-timers over 50, even when a majority of the population including visitors voice complaints, for example, about lax enforcement of laws. Hence it only takes a few thousand votes to win the office of mayor or commissioner; most of them living away from the fray; that is not conducive to making the elected leaders accountable when their hearts are not with “the People.”

You had a reputation on the Commission for having your heart in the right place. It occurs to me that if all our public servants had their heart in that place, we would all be better off.

It is with that in mind that I hope to hear from you in the near future about getting a dialogue going on the subject of whether or not we should have an elected police commissioner for the City of Miami Beach. Of course, as a journalist I would like to have your comments pro or con on the suggestion, as well as the City Manager’s, as that would lend my upcoming report more weight.

Sincerely,

David Arthur Walters

Cc:

Officer Deborah Doty
Media Relations Officer
MIAMI BEACH POLICE DEPARTMENT

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March 12, 2010

Michael Gongora, Commissioner
City Commission
CITY OF MIAMI BEACH
City Hall
Miami Beach, Florida 331139

Re: City Manager's Regular Crime Reports to the City Commission

Your Honor:

As you know, I have inquired of the City Manager as to what crime statistics are available, and all I have received thus far from his office is the F.B.I. Part I Offenses Uniform Crime Report made to the Commission, which led me to question him, without response yet, as to whether that is all the information he provides to the City Commission on a regular basis.

I would be astonished if that were in fact all the data provided to our policy makers for their decision-making process, and suppose that he would also regularly submit the Part II UCR, including data which would be of special interest to law-abiding South Beach residents, such as Simple Assault, Weapons carrying, Prostitution, Drug Law Violations, Driving Under the Influence, Disorderly Conduct, Public Drunkenness and the like.

I also (mistakenly) referred to City Manager to the National Crime Victimization Survey, which might be helpful to the Commission by way of comparison to the UCR, but is a national and not a local survey. I meant to say the National Incident-Based Reporting System, which provides statistics on lots more crimes, and, I believe, distinguishes between attempted and completed crimes, gives the resident status of victims and arrestees, whether arrestees are armed, alcohol and drug use, the kind and quantity of drugs involved, and other useful information that we sometimes see in the press.

No doubt our Police Department is collecting a great deal of information locally that could be so organized into regular public reports via the Internet—that would be useful not only locally but to interested people all over the world [potential tourists].

As it is, the buzz on the street is that demand for police services is way up, which is putting a great deal of pressure on supply.

Almost everyone I speak with has respect for our police officers, and say that the quality of law enforcement here has improved enormously over the years. However, it appears that political policies in respect to South Beach of late actually encourage the growth of crime factors, and, I hear, make it ripe ground for organized crime—something I know nothing about. I do know that to be seen in some of the clubs suffices to give one a bad reputation nowadays.

Sincerely,

David Arthur Walters

Subsequent Notes : 1) I have been amazed by the number of people I subsequently met who expressed utter contempt and hatred for police officers, sometimes for no apparent reason at all, including a neighbor who was on probation for assaulting an officer, and who, when drunk, could talk of nothing but how he wanted to kill police officers. 2) The remark about bad reputations gained from being seen in South Beach clubs is facetious: Mr. Gongora had gotten one for that very reason. (November 30, 2011)

An Anonymous Wicked Clown Saga Under Construction

2011-11-17T09:23:00.000-08:00

David Arthur Walters has posted the first part of:

AN ANONYMOUS WICKED CLOWN SAGA - IS THIS REVOLUTION A JOKE?

http://www.scribd.com/doc/73023732/An-Anonymous-Wicked-Clown-Saga

"I first encountered Anonymous Wicked Clown while I was doing my best to induce Occupy Wall Street’s scattered forces to march a million protestors on Washington in the spring and occupy Congress for social justice. Little did I know at the time that this particular clown, perhaps a proxy constituted for anonymous wicked clowns worldwide, may somehow be playing an “important role” in virtually undermining and blowing up governments everywhere. conversely, he may be just a joker clowning around. In either event, the masked man must be taken seriously in the moral context of his assumed persona: duplicity, deceit, vengeance, rebellion, revolution, anarchy...."

As this work progresses, members of Anonymous and Anonymous Wicked Clowns are invited to contribute some balance to this saga by contacting me anonymously via their proxy servers.

2011-10-28T12:25:00.001-07:00

SENATOR MARCO RUBIO & THE CUBAN THING

The Press should focus on important news

Editorial by David Arthur Walters
THE MIAMI MIRROR

October 26, 2011

Miami Beach—I don’t know about you, but I could care less about whether or not U.S. Senator Marco Rubio’s parents either temporarily visited or permanently immigrated to the United States, either to avoid the violence under Batista until Castro took over, or to stay away from Castro’s regime altogether.

The underlying question seems to be: Is Senator Rubio faking his parent’s membership in the Cuban exile community in order to gain favor with conservative voters? I personally believe that he sincerely sympathizes with and identifies with the Cuban exile community. That is enough for me.

Of course we all know that winning political office depends on advertising that requires elevating image over substance, so we are not surprised when politicians lie about or exaggerate their personal backgrounds to get elected.

However that may be, many non-politicians somewhat innocently repeat family legends without conducting a careful investigation into the underlying facts. Indeed, we all live according to unsubstantiated myths to some extent. We can be glad that investigators are not digging out the facts as we speak.

The Florida papers, particularly The Miami Herald, sedulously repeats the attacks made on Senator Rubio’s integrity in this matter, and to such an extent that we are given reasonable suspicion to believe that the press has a hand in manufacturing this front-page “news,” and does so to please a market wherein Cuban exiles are indeed an influential force that has become increasingly liberal having been repeatedly betrayed by elected neo-conservatives.

But the media tactic falls flat and is resented. The issue is not left or right but rather the ethnic identification the press would keep drawing. The fact of the matter is that both Cubans and non-Cubans are sick and tired of “the Cuban Thing.”

I could say that I have a “Cuban friend” named Darwin—he was born in Cuba—but why should I bother to mention that he is Cuban? Should he call me his “American American friend”?

Darwin is the son of parents who emigrated from Cuba to Spain and then to the United States. His father worked for Castro but made the mistake of publicly complimenting France for its superior solar technology, so it behooved him to get his family out of the country. After Darwin landed in the United States, he studied art and became a painter, a Born Again Christian, and a fan of President Bush. Although his affiliations have changed, he was and still is a Red, White, and Blue American. As such he resented, for one thing, being called a “Cuban painter.”

Being identified as a Cuban artist naturally has its commercial and political advantages in South Florida. Still, Darwin said he was “sick of the Cuban Thing.” He loves his particularly ethnic culture, but when it comes to politics and business he is a full-blooded American.

The press decides what the news is. The Miami Herald has decided that the fire storm it has fanned for its ulterior commercial and political purposes is front page news. But the Cuban Thing in this context is certainly not important enough to be front-page news although it may be more important than the sports articles the Miami Herald editors like to run on the front page—one man pointed at the football on the front page yesterday and said that is what the editors have for brains.

Of course the senator has used his Cuban background as a campaign strategy, so it seems fair to challenge it, but not really. Senator Rubio’s handsome appearance and popularity is worthy of a sentence or two, for that often suffices to get someone elected. Yet intelligent voters care about what he has done and what he can do for his country, and could care less about his ethnic background as he perceives it.

One thing that really matters is Senator Rubio’s ideology. I like the senator’s looks, and I think he is relatively sincere compared to older hands in politics. But I am suspicious of his ideology, not because it temporarily pleases the tempestuous teapot faction, but because it seems fixed. I do not trust someone who is married to a certain set of ideas or fixated on a political ideology.

Ideas should not be things to cling to but should be modes of creativity. Fixation on ideas is a sign of moral insanity, and presages demented behavior. That is what John Adams, a true conservative, meant when he called ideology “idiotology.” It would be in the public interest for the press to manufacture some “news” on that universally newsworthy subject instead of using the parochial Cuban Thing to suit what it conceives to be its market.

# #

Death by Muck - Punishment for elder abuse in Florida ALFs

2011-10-27T13:34:00.001-07:00

DEATH BY MUCK

For People Who Neglect Poor Elderly and Mentally Challenged ALF Residents

Editorial by

David Arthur Walters

THE MIAMI MIRROR

MIAMI BEACH—My heart was already racing from my second cup of coffee when I read the Miami Herald’s lead story on the front page this morning. By the time I had finished ‘Grand jury probes troubled ALFs’ the latest article in the rag’s “NEGLECTED TO DEATH,” I was infuriated, fit to indict, try and execute anyone at all involved in the abuse of poor elderly and mentally incapacitated persons wasting away in assisted living facilities in the swampy State of Florida.

Presuming that the Herald has gotten the facts right that led to the official investigation, the neglectful ALFs are chambers of horror into which poor helpless people are dumped. Those who resist are tied down and left to die of blood clots from the restraints, just for example. I felt my skin crawl at the thought of bloodthirsty bedbugs, and of rats scurrying across the floors, not to mention frustrated angels of death. I imagined Salpetriere, long before Princess Diana died there, when it was the dumping ground for Paris’ elderly and insane, a holding pen for prostitutes, and for criminals awaiting deportation to North America, before Dr. Phillippe Pierre stepped in with humanitarian reforms. I remember how the hospital was stormed during the Revolution, and compared the mob to Tallahassee politicians; 134 prostitutes were released, but 25 mentally ill women were dragged out into the streets in their chains and murdered.

Presuming the Herald’s horrendous accounts to be true, which I would fain do even though I have found a portion of a previous award-winning muckraking series to be untrue and probably libelous, I would first of all give the newspaper journalists, starting with investigative editor Mike Sallah, the highest possible award for muckraking, the Mucky-Muck Medal.

And then, still in a fit of rage, I would throw the caretakers, supervisors, executives, owners, regulators, legislators, and top officials, anyone for that matter who neglected or allowed the neglect to continue, into the foulest muck, having in mind the practice of ancient Chinese dynasts, who amputated the arms and legs of royal traitors and tossed them into latrines.

Yes, the penalty I would have imposed in all my fury, neglecting my liberal ideological religion, was certainly draconian: death by muck: eat the muck or not, the offenders shall die in the muck. Everyone is equally liable for the deaths in ALF. The charges would include both kinds of involuntary manslaughter: criminal negligence and constructive homicide, and aiding and abetting the same. As for those persons abused but not killed, the charge would be attempted manslaughter, with the same penalty upon conviction: death by muck.

Draconian indeed; let the punishment be a warning to voluntary murderers and abusers! The defense, “We accidentally put these persons to sleep forever because they wanted to take a nap,” shall only compound the crime wherever celebrities and propofol are not involved.

Now that I have calmed down somewhat, my liberal principles are coming to the fore. Let the matter be handled as it should be according to the current letter of the law, provided that the grand jury is supplied with Cuban coffee and runs amuck. As for the facts, whether or not they are true, everyone had better check on their elderly and mentally disturbed relatives confined to institutions; if you have none, go to an ELF, say you have an elderly relative, take a tour of the facility, post the infractions on the Internet and report them to the authorities.

If you are poor and getting old, and still have some wits about you, you might consider doing some research, leaving Florida in the muck if you can find a place where the elderly are treated better. Some parents in primitive times had their children stone them to death after thanking them for coming over to do the merciful deed, but that is illegal in this so-called civilized state.

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How To Say Yes to Free Concert Tickets

2011-10-20T08:11:00.000-07:00

HOW TO SAY YES TO FREE TICKETS

By David Arthur Walters
THE MIAMI MIRROR

South Beach—October 21, 2011. According to an October 20 Miami Herald report filed by Miami Beach beat reporter David Smiley, the Florida State Attorney’s office will not bring criminal charges against Miami Beach City Manager Jorge Gonzalez and his right-hand assistant Hilda Fernandez for demanding 26 tickets to every New World Center event plus $10,000 in tickets to the symphony’s gala fundraising event in return for making a $15 million reimbursement grant. The demand was reportedly made by Mr. Fernandez upon Neisen Kasdin, the New World Symphony’s chairman, who subsequently initiated the complaint. He declined to discuss the closing of the investigation with the Herald, stating that the issue had been worked out with the city.

The Herald reported that Chief Assistant State Attorney Jose J. Arrojo’s memo states that a law prohibiting officials from “soliciting or demanding any gift” may have been violated, but he declined to prosecute the case because proof of criminal intent would be improbable given the fact that a longstanding city policy of obtaining tickets for distribution had been condoned in 1992 by the Florida Commission on Ethics, and that the City of Miami Beach had resolved a year later than such tickets were for distribution to the needy.

Apparently, the rulings of ethics commissions and resolutions by city commissions trump criminal laws in the State of Florida.

Whatever the laws are, they might not be enforced for one reason or the other. We know that violation of some laws is virtually traditional in Miami Beach; ordinances are even passed to please people knowing they will never be enforced.

And what is legal may not be moral. The complicated laws and ethical regulations are all too often designed to condone and advance the behavior of the power elite; whether or not what is done is moral is another matter. It appears that the moral of this story would be that it would be a good thing for the city to get tickets from organizations it does business with in order to distribute those tickets to the needy. Of course it would be immoral for city officials to distribute them for personal benefit; as favors to friends and relatives, to the electorate to get votes, etc.

Anyone with interested in reading Mr. Smiley’s informative report would wonder how Mr. Kasdin and Mr. Fernandez had “worked out” the free ticket issue and why Mr. Kasdin did not want to discuss it.

At least the reader would want to know if any tickets had been received by the city and to whom those tickets were distributed. The report states that, “In return for the city’s help, the symphony committed to providing a public benefit, such as discounts for city residents…” And, “Miami Beach released the $15 million grant to the symphony in March without receiving any promise of tickets.”

All right: there was no promise of free tickets although discounted tickets were promised. The amount of the discounts or who would receive the discounts was not reported. Most importantly, whether promised or not, were any free tickets actually obtained, and handed out?

I asked Mr. Smiley for clarification, noting that I recalled previous reports, perhaps by the SunPost, about free tickets being handed out; he responded: “The portions of the story you pulled out speak for themselves.”

In retrospect, I think Mr. Smiley was being coy, i.e. artfully demure. He might have better said that he simply did not know, and had reported only on what he knew.

On the other hand, Jorge Gonzalez’ answer to our question was quite clear: “No tickets were received as public benefits from the NWS and therefore no tickets were ever distributed to anyone by my office.”

Mr. Smiley’s curt reply seemed to dovetail with my opinion that his reporting on Miami Beach often favors the city’s authorities; without those sources, his reports would be of less value to residents interested in the conduct of the powers-that-be. However, it would be unfair to apply that opinion in this matter. I have discovered his March 16 exhaustive expose of ticket handling in the archives, entitled, “Miami Beach officials net thousands of free tickets.” Many thousands of dollars worth of free tickets are coming in for all sorts of events. The free-ticket situation as reported by Mr. Smiley, who looked into the city records and interviewed officials, is outrageous. But let us cut to the chase:

“Whether or not the tickets indeed reach the public isn’t documented. Assistant City Manager Hilda Fernandez tracks only the tickets that come in, what they’re worth and who signs for them. Whether they are used, and by whom, isn’t normally included in the city’s records. Fernandez, who also receives tickets and writes memos when she returns them, said it’s up to commissioners whether the practice should continue.”

Getting back to the moral of the story, it is a good thing to get free tickets and give them to needy people. I myself need a free ticket to something nice but was dissuaded by an insider from asking for one with, “Fat chance that you will never get a free ticket to anything out of the City Manager.” We should know who the needy people are, or at least know the name of the organization. All other tickets might be randomly distributed to residents who put their names in the box for the periodic drawings. Then we can say “Yes” to free tickets.

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Brooklyn Water Bagel Company Cement Donuts

2011-08-21T09:38:00.000-07:00

THE ORIGINAL BROOKLYN WATER BAGEL COMPANY’S CEMENT DONUTS

Fast Food Pong Review™ by David Arthur Walters

August 21, 2011

SOUTH BEACH—Live and learn. I had been eating bagels for decades and did not know why bagels may be called cement donuts until I went through a tooth-wrenching ordeal trying to eat a pumpernickel bagel at Brooklyn Water Bagel Company’s new joint at 1119 5^th Street, in the front of South Beach’s new shopping center right over the MacArthur Causeway.

I was repeat business, having visited the bagel shop twice before. On the first occasion I had a “Stud Muffin” and flavored coffee for my breakfast. The muffin was out of sight! And so was the $5 price as far as I was concerned, for I am a Breakfast Special person. Still, it was the best muffin I have ever had, and the coffee was good.

On my second visit, I had an onion bagel with cream cheese and found the bagel rather bland despite the flavoring, but that is the reason for the cream cheese. Incidentally, your typical New York bagel has sufficient salt added to counter the blandness. And mind you that I am not entirely naïve when it comes to bagels—I used to stand in line late at night at H&H Bagels on the West Side (closed this year for tax theft) to get them fresh from the ovens.

On my third visit, I nearly had my teeth pulled trying to eat the pumpernickel bagel. Since the place was packed and I had failed to get the attention of two busy employees, I left a little note and my press card for the manager, figuring he would handle the issue, and perhaps call me. He did not call me. I returned the next Saturday in good humor, and mentioned the cement-like bagel after the customer in front of me left with a pumpernickel bagel.

“Oh, are you the one who left that little note on the counter?” Eileen inquired with a Brooklyn sneer.

“Yes, everyone was very busy at the counter. I didn’t want to interrupt them, but I wanted the manager to know about my experience. And I left my press card since I review South Beach restaurants, thinking he might give me a call.”

“Sometimes we get a bad batch. You should have seen the manager about it then!” she lectured me.

I did not bother to ask why the cooks did not test each batch. I did not want to argue. I am all too familiar with the Customer Is Always Wrong approach. I had planned to eat another kind of bagel in order to write a fair and balanced review, and I had already paid $5 for it and coffee, but I forgot about my good intentions, turned around and left that ruined breakfast behind before it was delivered. I hurried went next door to Subway, where I had the Breakfast Special: a flatbread egg sandwich and pretty good coffee for $3.

Coincidentally, the person behind the counter at Subway was preparing a bagel for herself when I arrived. She said she had bought two bagels at Publix around the corner for $1. Once upon a time, before I reduced my bagel consumption because of their high caloric content, I used to get bagels at the Publix myself; not the ones they have cooked, but the mass-produced, packaged ones on the shelf, which are softer and more chewy because a less labor-intensive, steaming (in the oven) process is used, instead of boiling them in water before baking.

The Original Brooklyn Water Bagel Company admits that its brand is “all about the water.” Now all unprocessed water from underground and surface sources is contaminated by inorganic minerals hence is “hard” to a certain measurable extent. New York City happens to obtain its water from “softer” water sources north of the city, so is known for its “soft” water. Once the water gets to Brooklyn and sits around in the old pipes, it picks up more minerals, along with other substances, that makes it a bit harder and has a special influence on its taste. Cooking with softer water will bring out more of the flavor of the ingredients themselves.

Miami water is harder than Brooklyn water. Rather than ship Brooklyn tap water into Miami, the Original Brooklyn Water Bagel Company uses special equipment to purify Miami water and then add back a secret formula of materials to simulate the Brooklyn water. The machines and the bagel-manufacturing process are displayed behind windows along the length of the restaurant. The cooks seemed to be self-conscious and not too happy as a consequence of working in a fishbowl environment. Better actors should be hired; I shall recommend that to Larry King, one of the owners.

As it turns out, Brooklyn Water Bagel Company’s water processing technique has far more to do with displaying the company brand than it does about the taste of its products. Why the company would want to re-contaminate purified water is beyond me. In October of 2010 the firm’s general counsel, Ira Marcus, while discussing a lawsuit appertaining to its water flushing system, told the New York Times that crustacean “poop” may be one of the secret elements added to imitate the Brooklyn water. In retrospect, that comment was not very funny after the company’s Coral Springs, Florida, franchise was closed on May 24, 2011, because of 14 rodent infestation violations.

A reverse osmosis process is employed by the company to de-ionize the Miami water, i.e. eliminate the mineral salts. But the softest and purest water is distilled water, which has had the inorganic elements and other contaminants including bacteria removed. Distilled water health fanatics claim that imbibing distilled water removes the sludge accumulated in the body from drinking so-called soft water and hard water over the years, and thus prevents all sorts of disease. Of course mineral water proponents, who associate the stiffness of clothes washed in hard water with cleanliness, believe the mineral salts in hard water are good for the body.

If you are a purist who does not want water to interfere with the taste of what you are eating, you may believe that everything tastes better when distilled water is used. Watch out for bottled distilled water; I was once greeted with an overpowering sewer-like stench when I opened a bottle that I had purchased at CVS. The water had not been distilled, and I imagined where the water came from. A small distiller can be purchased for home use—it will distill alcohol as well.

The bottom line here is that the Original Brooklyn Water Bagel Company’s rhetoric about its water is branding bull easily seen through, so it must depend on facts to succeed; to wit, quality food and service. Of course taste is influenced by psychological factors including advertising bull and food criticism. I did not realize my favorite American adjunct beer tasted like horse urine until I read the review, and then it tasted bad, so I switched to a German beer made with German water, and now I want to taste beer made with water harvested from icebergs to bring out certain elements of the archaic collective unconscious.

They say that taste is like an anus inasmuch as everyone has one. Yet it was not the bland taste but the roof-tar toughness—roof-tar was a substitute for chewing gum during the Great Depression—of the cement donut that I really could not stand. I suppose a bagel purist with the sharp teeth and powerful jaws of a neo-Neanderthal might rave about a tough and bland soft-water bagel providing it has a hard and shiny crust. But I shall not rave about this company’s bagels; instead, I recommend the New York Bagel Deli downtown at 155 East Flagler Street.

I am giving the Original Brooklyn Water Bagel Company’s South Beach location a Pong Review™ because I got a whiff of bad service there, which reminded me of one of my Flatbush experiences near Brooklyn College, and I wish to return the favor. My readers know that I am prejudiced in my own favor when it comes to fast food reviews, and they know that I have high ideals as to how customers like me should be treated—witness my ‘The Pickle Chiseler’ review, wherein I related how I told a deli manager who sneered at me what he could do with his cold hot dog on a stale bun for which he wanted a half-dollar more for some relish—the sneer was the last straw. People who treat me right are righteous, in my book, and that’s all right, because they treat me right.

Note: ‘pong’ is British slang for a smelly fart

2011-08-13T09:26:00.000-07:00

READ ALL ABOUT IT!

You are cordially invited to preview 'Lady Rothstein’s Shoes,' a work-in-progress, before it is expanded and edited. The article may be enlarged to full screen size and viewed online, and/or downloaded for your future perusal at the following site:

http://www.scribd.com/doc/62225322/Lady-Rothstein-s-Shoes

Incensed by the disgraceful mistreatment of Kimberly Rothstein after her husband’s Ponzi scheme was discovered, foremost Internet Controversialist David Arthur Walters aka The Miami Mirror presents a valid lay argument that innocent spouses of fraudsters should be entitled to at least half of the ill-gotten gains conveyed to them by their miscreant spouses, by virtue of their immediate marital rights to property in return for services rendered, and he winds up his informal postmodern discourse with a discussion of a 2011 judicial decision in New York that lends credence to his startling position.

Reasoning on Sunday - Logos tempered by logic may save the world

2011-08-01T09:58:00.000-07:00

Here I am again, on Sunday morning, a creature of habit, having a cup of syrupy java at Starbucks. People no longer come to Starbucks to meet and converse with one another, and perhaps foment a revolution, as people once did in coffee houses of old, but to talk on cell phones and use the Internet. Sometimes someone I know arrives, but they have no time to chat as they are in a big hurry to get hooked up to WIFI and be on the Internet.

At least everyone is remotely connected. I am rather remote myself. I bring old philosophical tracts to read before turning, ever more skeptically, to the Sunday paper. I have lately been perusing Charles Sanders Peirce’s essay on fixed beliefs. It might be good for people to have a few fixed beliefs, and, if contradictions arise, bury their heads in the sand until they blow over. To the best of my information and belief, I am not an ostrich, but after reading some of the essay last Sunday, I believed things might turn out well enough for enthusiastic people who believe in what passes for reasonable today, or at least do not openly dismiss reason for the sake of divine foolishness. Economics, for instance, pretends to be as scientific as physics, and its faith in rational expectation, equilibrium, and free market theories panned out well for the power elite until the most recent collapse. After some recriminations and feeble regulatory reform, irrational business-as-usual guided by the Invisible Hand continues under the same political-economic faith, embracing such rationalized nonsense that, if everyone tries to overcharge everyone, and if everyone competes to get to the top of the heap, everyone will prosper.

Yet philosophers really should not believe in anything fixed because fixed beliefs would the death of philosophy. I prefer to believe in Nothing on Sundays, having been taught by philosophy that that is the reasonable thing to do, especially when I cannot stand the world anymore because it is nothing but illusion. A philosopher who follows in the footsteps of the greatest of all sophists hence practices virtual suicide should die to the world while preparing for death. And what is death? Nothing. So there is faith in Nothing, at least nothing we know of in this world.

Some dissenting philosopher, say, Ortega y Gasset, who embraces Being because that is all that can be, is bound to discredit belief in Nothing because Nothing does not exist to be believed in; wherefore faith in Nothing is actually faith in something indefinite and therefore destructive of everything finite, rendering the faithful into floundering fools in want of the usual illusive straws to clutch at.

"The World as deception is a most unpleasant reality which we can describe only by calling it and feeling it as Nothing-being, being so for us. Pure Nothing is better because one is satisfied with an absolute non-being and only its self is reduced to nothing. But to be in Nothing, as we are in basic doubt, is to find ourselves subdued and given over to an operative, active Nothing which exercises its terrible crushing, annihilating power on us to live in an atmosphere of substantial deceit, is to witness moment to moment the destruction of every one of our actions and our conditions, the ruination of our enjoyment of life. The anxiety, the deep uneasiness which must have been felt by these first men who did not believe in the gods, for whom the world had collapsed as 'security' and had become a deception for them, must have been terrible. Hence the heroic reaction with which they sought to emerge into something firm and to find certainty for themselves."

Peirce was a practical or reasonable man concerned with what really works. What we see is what we get. What we know about what we see should be reasonable. True conclusions arrived at by reasoning must be supported by observations every objective observer can agree on. A concept is meaningless if it has no practical effect on the way we live and think. The scientific method is the best means to fix belief, eradicate doubt and progress to certain knowledge. As for the reasoning process, he said that "the object of reasoning is to find out, from the consideration of what we already know, something else which we do not know," and points out that "each chief step in science has been a lesson in logic."

Lessons in logic provided Peirce, who turned out to be one of the world’s greatest logicians, with a sense of certainty at an early age – Benjamin Peirce, his father, was a Harvard mathematics professor and a co-founder of the Coast Guard and the Smithsonian Institute. By now we should all know that logic, no matter how right its path and true to its principle, cannot prove anything true to fact, but it certainly can expose falsehoods. Charles was never thoroughly certain of anything, and from his doubt he developed a doctrine dubbed fallibilism.

He would find a great deal of consolation for his own fallibility and material poverty in his beloved philosophy, particularly in his love of logic, which led him to conclude early on that all problems are logical problems. At age 19 he had the audacity to claim that the great Kant's logic was childish. Yet he could not put Kant down for the rest of his life, hence was in part a transcendental idealist himself, minus Kant's Euclidean bias and a priori methodology:

"The a priori method is distinguished for its comfortable conclusions. It is the nature of the process to adopt whatever belief we are inclined to, and there are certain flatteries to the vanity of man which we all believe by nature, until we are awakened from our pleasing dream by rough facts."

To wit, a priori's are by definition prejudices. Of course we must assume something, a so-called first principle in order to proceed with our deductions there from, but the presumptions must stand the test of experience, have some practical consequence, to be of any real benefit, to be "true." Scientific inquiries may ultimately converge on Reality, i.e. the Truth, which we may suppose can be logically elucidated by a unified theory, an ideally rational system.

Of course that ideal smacks of the rationalism spawned by the very a priori or first-principle reasoning Peirce ostensibly abhorred; something quite contrary to his practical and experiential predilections. He believed in the reality of abstractions, in effect created his own a priori categories. Setting aside Kant, he criticized Hegel's dialectical approach yet he embraced his own triunal dialectic to the extent that we might call him an objective idealist and a hypocrite to boot, a traitor to his coined pragmatism. But since we are fallible, and are all hypocrites to the extent that we do not factually achieve our stated ideals, we chose not to resort to the water-tight, intolerant compartmental thinking that his tolerant friend and co-founder of pragmatism, William James, impugned in his Varieties of Religious Experience. Incidentally, Peirce believed that James was unduly afraid of logic and that his pragmatism was too “nominalistic,” while James believed Peirce’s formulas were too complicated and obscure.

Suffice it to say that all clear concepts are definite terms and as such are bound to terminate in their definitions; but there are, thankfully, leaks between the compartments, relations not always opposite that we can relate, of con-fuse, without resort to either/or logic, with the permission of Hermes, god of the terminus.

No one wants to believe in a fallacious argument once the fallacy is pointed out, and then to be perceived by others as a fool. Yet we note well that arguments may be well reasoned or quite logical yet may have no facts whatever to support them. And irrelevant facts may be cited in support; it might be said that the world proves that god exists, to which the response may be that the world is god, to which the response may be “Blasphemy!” Furthermore, defining just what a fact is can be a troublesome endeavor. Leave it to William James to leave some room for subjective facts, facts of personal experience:

"Even the errors of fact may possibly turn out not to be as wholesale as the scientist assumes… The religious conception of the universe seems to many mind-curers 'verified' from day to day by their experience of fact. 'Experience of fact' is a field with so many things in it that the sectarian scientist methodically declining, as he does, to recognize such 'facts' as mind-curers and others like the experience, otherwise than by such rude heads of classification as 'bosh,' 'rot,' 'folly,' certainly leaves out a mass of raw fact which, save for the industrious interest of the religious in the more personal aspects of reality, would never have succeeded in getting itself recorded at all."

Despite his criticism of a prior reasoning, Peirce too leaves ample room for intuition, for revelations out of the clear blue, for “abduction” in contrast to induction and deduction. He recognized that the empirical method of trial-and-error, until what really works is discovered, wants further development, thanks to lessons in logic, into a more efficient science. Thankfully we are more hopeful than logic would justify, says Peirce. Although practical logicality is an animal's most important asset, and may well be the consequence of blind evolution, it may otherwise be more advantageous for the "animal to have his mind filled with pleasing and encouraging visions," thus evolution would also foster a fallacious bent of mind to keep man going. Wherefore hope springs eternal.

Thus Peirce leaves tolerable room for dreams while emphasizing pragmatic experiment, the manipulation of real things instead of depending on fancies and figments. He does not neglect the imagination here, the mind that makes the things its own and dreams of different results. So the man is mind and hand developing conjointly. For example, Peirce relates that Lavoisier’s method "was not to read and pray, but to dream that some long and complicated chemical process would have a certain effect, to put into practice with dull patience, after its inevitable failure, to dream that with some modification it would have another result, and to end by publishing the last dream as a fact."

Logic must still have priority over other method of inquiry: “Yes, the other methods do have their merits; a clear logical conscience does cost something, just as any virtue, just as all that we cherish, costs us dear. But we should not desire it to be otherwise. The genius of a man's logical method should be loved and reverenced as his bride, whom he has chosen from all the world. He need not contemn the others; on the contrary, he may honor them deeply, and in doing so he only honors her the more. But she is the one that he has chosen, and he knows that he was right in making that choice. And having made it, he will work and fight for her, and will not complaint that there are blows to take, hoping that there may be as many and as hard to give, and will strive to be the worthy knight and champion of her from the blaze of whose splendors he draws his inspiration and courage."

Francis Bacon (1561-1626), English champion of the inductive method, that of reasoning from particular facts to general theories about those facts, a modified Greek invention introduced to Europe by Arabs and Jews, in contrast to deducing conclusions from preordained premises, famously remarked that, "Empiricists are like ants, they collect and put to use; but rationalists, like spiders, spin threads out of themselves." So Peirce is both an ant and a spider, or rather something mythical in between.

We should not blame a mathematician for counting things, or a physician for measuring them, or a physician for being a metaphysician after hours, or a philosopher for reaching for a reality beyond his grasp as if it were something tangible with cash value. I myself think of induction and deduction as two triangles overlaid on one another in the form of the shield of my namesake. The truth of the matter must be deduced both from the top down and induced from the bottom up.

What is wanted is integrity: "Above all, let it be considered that what is more wholesome than any particular belief is integrity of belief, and that to avoid looking into the support of any belief from a fear that it might turn out rotten is quite as immoral as it is disadvantageous. The person who confesses that there is such a thing as truth, which is distinguished from falsehood simply by this, that if acted on it should, on full consideration, carry us to the point we aim at and not astray."

Peirce was no angel, his behavior with women was scandalous at times and it was not beyond him to get into a fight, but he was a man of integrity in the sense that he was true as he could be to his metaphysical principles. We recall that his penury was utterly pathetic during the last twenty years of his life. William James kindly raised funds from fellow academics to put real food on Peirce's table; otherwise, his fare was stale bread from the local baker. In sum, Peirce paid the highest price for food for thought; he literally had his head buried in it, apparently believing that he was on to something more worthwhile than the current profanities of this evolving world. Indeed, he believed everything was evolving, but for him the dominating factor was not unending strife and competition but that of love and cooperation.

-XYX-

REPOST - Singing the Health Insurance Blues Again

2011-07-26T07:18:00.000-07:00

A Restrospective Repost. President Obama is portrayed as a communist or socialist or leftist by the opposition, but he is actually somewhat to the right of the middle.

Monday, August 03, 2009

President Barrack Hussein Obama is now deeply involved in the usual compromising process which occurs after presidents take the hypocritical oath of office, that of selling short the planks of the campaign that caused many people to believe in a candidate. Business-as-usual is all ready returning, as we can see by the enormous non-performance bonuses banks are handing out, and by tepid proposals that would merely tweak the regulatory scheme in reality controlled by big business, tightening a few loose screws here and there, and President Obama is going along with the mainstream.

Yet, even as his deeds are done contrary to the words that were spoken, many people will continue to believe in President Obama simply because he is a charming man and they are naturally unwilling to admit that they judged him wrongly. Well, he is only a president and not the Almighty. A president can easily rouse a bored and effete people and their congress to war on a distant people, for people naturally love violence as much as sex, but fighting sickness and poverty is another matter unless the misery is extreme, and then revolution instead of reform is the key word. President Obama may have missed his window of opportunity to effect radical change. The greatest recession since the Great Depression may have only been a rather expensive traffic ticket on the road to hell.

The greatest thing President Obama could get done, if only he were up to the job, would be the nationalization our health insurance system. At least he would push through the community-rated Public Insurance Option, which the great majority of us want, and which he still says he favors. But he has apparently capitulated to the johns who frequent the federal houses of ill repute, both the commons and the aristocrats, trading public health for a few tweaks of business-as-usual.

We saw it coming when he did not even mention the Public Insurance Option during the recent speech that preceded a national press conference. When a reporter mentioned it during the session of questions and answers, he said favored it, but apparently not enough to make it the sign qua non of his signature on a reform bill. We figured it was off the table, and that the most that shortchanged people would get would be slightly more regulation of the wasteful and unjust health insurance industry as we know it. More recently he said that his plan would prohibit insurance companies from discriminating against sick people, but he did not say that he would require all plans to be community rated so that everyone, no matter how old they were or whether they were employed or not, would pay the same premium.

Billions in profits are being reported by health insurance companies as we speak. The last big health insurance reform effort resulted in obscene gains to the industry’s administrators instead of the medical providers. After seeing what commercial insurance companies can do to exploit people’s essential need for health insurance, and after being subjected to federal income taxes under the tax reform of 1986, it is no wonder that non-profit Blue Shields, run by boards of doctors who naturally tend to put the welfare of their profession ahead of the welfare of their patients, are converting to mutual profit organizations or consolidating stock companies lately – Well Point is now the largest Blue Shield around.

The Blues evolved from the desire to fund medical care for teachers, loggers and miners. While the Blue trademarks became a symbol for quality insurance for employed workers, who are physically and financially healthier than impoverished unemployed people, large pools of funds became available to certified hospitals and licensed doctors, and they charged accordingly. Increases in premiums, purportedly due in large part to scientific advances, and technological progress including formal education and administrative techniques, would get them an even greater pool of funds to draw from. We have here the usual tug-of-war between need and greed. The Zoroastrian Dualists believed that, although there are two gods, the good god would win out in the very long run. In the case of health insurance, the contrary now appears true. But do not count on it, for the conflagration still impends as $100,000,000 bonuses are paid, mansions are snapped up at $2,000,000 discounts, and the recovery of Miami’s humble workforce, for instance, depends on the likes of the $10 per hour paid from the stimulus package to Tiffany Barkley for sorting out photos of dead people at the county medical examiner’s office during her summer internship – so far Florida is last on the stimulated list, at $610 per capital, while the District of Columbia is first, at $3,891 per capital.

So-called bipartisan senators have proposed an exchange or pool of non-profit insurance companies for people to select from instead of the Public Option the President allegedly “favors”, but given the history of the Blues, which are independent franchises permitted to use the Blue Cross emblem, the Greek cross that Joseph Binder included on his 1934 poster advertising the American Hospital Association, and the Blue Shield symbol designed by Carl Metzger in 1939, why bother to re-invent one of the big wheels with many spokes that is presently crushing us? Incidentally, the AHA designed the Blue Cross guidelines in way intended to reduce price competition among hospitals. Physicians lobbied vigorously to make sure they were represented on the physician-sponsored Blue Shield boards. The Blues now administer Medicare in several areas, provide insurance to state employees, and are a favorite option under the federal employee insurance program, hence the Blues have a great deal of influence on our elected representatives at the highest levels.

We certainly know that we all must have health insurance to spread the economic risk of costly illness. The health of a nation depends on the physical and mental health of its people. There are certainly many things individuals can do on their own to have and maintain a healthy constitution, but human nature, no matter how healthy, is vulnerable, and the United States government is constitutionally charged with attending to the welfare of its citizens. Since health is fundamental to everyone’s well being, or is in fact their well being and chief happiness, and since the diminishment of that health is enormously costly to the nation on the whole, and since the cost of preventing disease, healing the sick and maintaining health very great, spreading the risk through mutual insurance is necessary, and that insurance should be a public utility. Whether individuals actually see the cost as a premium or it is charged to a budgeted or general tax fund is a formality – as it is, we are already paying for medical care one way or another. Leaving the health of our nation in the hands of private capitalists and their managers, whose main interest is profit and executive compensation, is absurd, as every advanced nation on this earth but the United States has realized long ago.

Although we might not admit it, we know the awful truth about naked capitalism and the supposed self-regulation of its free markets. Its object is not to increase competition but to eliminate it, and one way of eliminating it besides undercutting or buying competitors off is by buying off the government that would regulate business in the public interest. And then it is said that the business of government is business, and the bigger the better. Fascism is thus the perfection of capitalism. We prefer to call it corporatism today instead of fascism, for the latter term conjures up visions of concentration camps and gas chambers, whereas corporatism is multicultural and slowly nickels-and-dimes the basis of the established pyramid to death while the power elite at the apex live high off the hog. That system is bound to collapse catastrophically at one point or another. And if President Obama and his business-as-usual team sell us out, it will collapse sooner than later.

Request for public access to records in important malicious prosecution case

2011-07-23T11:54:00.000-07:00

July 23, 2011

Honorable Peter D. Blanc, Chief Judge
PALM BEACH COUNTY COURT SYSTEM
c/o Sharon R. Bock,
Clerk & Comptroller
or Stephanie Lee
Judicial Assistant

RE: Case: 502011CA001121XXXXMB DAVID JOHNSON V ALLEN H LIBOW

Your Honor:

I respectfully request the court to issue an administrative order to make all the filings on the docket in the above-captioned case electronically accessible to the public free of charge.

Johnson v. Libow is of significant public interest inasmuch as its subject matter appertains to the ability of officers of the court to pervert judicial process to intimidate, silence, and punish members of the public who file complaints against them with The Florida Bar. And the case is significant because it appertains to the Bar's failure to restrain all attorneys from doing so, despite the Bar's opinion, in one case of selective enforcement,that such conduct is unethical inasmuch as its interferes with the administration of justice.

Broad public access to court records is increasingly limited to the minute portion of the public that have the means to visit the courthouse, Most often that would be members of the so-called legitimate press.

I have called attention to this important case to mainstream newspaper reporters in Florida, including but not limited to reporters with the Miami Herald and the South Florida Business Journal.

My effort to elicit "legitimate" coverage in this case has been in vain. Mainstream media reporters have informed me that, since this subject may very well involve criticism of The Florida Bar therefore the Florida Supreme Court of which the Bar is part and parcel, and since the Bar itself is notorious for its past prejudice in favor of influential attorneys, coverage would alienate a major source of "legitimate" news and would furthermore be a waste of time inasmuch as the court has "inherent powers" over lawyers that cannot be influenced by the press or public opinion not to mention the legislative and executive branches.

As for the judicial opinions the organized media does cover, I have often found its reports misleading, and sometimes plainly wrong in fact and law, when I did manage to recover a copy of the judicial action reported on.

Additionally, I have not always been able to get a complete case file in some cases because of costs, particularly where attorneys are involved whose practice is to file hundreds of pages at a time in hopes of bewildering the court and running up litigation costs.
I have done my best, as a member of the traditional Press, that being a "press of one" or "pamphleteer" sometimes critical of the judiciary, i.e. the "Press" for which the Constitutional Amendment was drafted, to cover this particular case, but at present can say nothing about it because the records are not available and the parties are silent due to pending litigation and my lack of status as a "legitimate" reporter.

It is with all that in mind that I reiterate my prayer for an order providing that the filings in this case - at least the pleadings themselves - be made electronically available to the general public free of charge.

Yours truly,
David Arthur Walters
aka "The Miami Mirror"

cc:
Kenneth Marvin
Director of Lawyer Regulation
THE FLORIDA BARJuly 23, 2011

Note to Readers: I sent a copy of this to veteran political report Marc Caputo at the Miami Herald - he does not care about the subject - he asked me to drop his name from my list.

My Tenacity on Sunday

2011-07-18T09:35:00.000-07:00

by David Arthur Walters

I have been a Sunday patron of the Starbucks in the Marriot Hotel at South Pointe in Miami Beach for five years, where I like to read some philosophy over my coffee before turning to the Miami Herald. I have been shortchanged there only once, and to this day I have said nothing about it. Since then I have made sure to give only small bills to the cashier. Anyway, I got the shortchanged money back over time due to the discount given to regular customers. But last Sunday I was charged more for my coffee, and I received a smart remark when I asked if the discount had been discontinued. I decided to switch to the small size cup in the future, and to no longer read the paper. This Sunday, to make matters worse, I noted that the recent remodeling job had resulted in less seating indoors, and that the new arrangement was uncomfortable.

“But never mind,” I told myself, and buried my head in metaphysics as usual after extracting an essay on fixed beliefs by Charles Sanders Peirce from my bag. Last Sunday I had underlined his statement, “When an ostrich buries its head in the sand as danger approaches, it very likely takes the happiest course. It hides the danger; and, if it feels perfectly sure there is none, why should it raise its head to see?”

You can say that again. Whenever I face the world I find it opposite, and the more I oppose it the more I am defined by it. But definition is death, for all finite things shall eventually pass away. I want to be indefinite and unconditioned. I want to be free, to live forever unimpeded by circumstance. But then I would not exist. Ironically, that is the frightening prospect that plagues me when I turn to the world, that it shall survive me in the final analysis, for no man is immortal. Is my urge for freedom a will to die? I want freedom, but freedom from what? Everything! What is the difference between freedom from everything and death?

I would overpower my own end and place myself in a better place. I would not live in the now like a tomato, for my will urges me on, and I think, accordingly, that there is always a better end than any here and now. Even the escape into the now, into the infinitesimal point that is the principle of the line, is a living flight to death, for any certain point apprehended ends the continuity. Anyway, one cannot have the now and leave the here behind.

Metaphysical thinking is my retreat from physics, my escape from death. Fortunately, God does not have to think because God has nothing to fear. Still, Satan is welcomed by God because without one God would be no good. The devil is definitely in the details; the devil corrupts everything definite, hence nothing is perfect. Of course metaphysics, or the useless course we study after physics to discover first and final causes, may seem meaningless to the pragmatist who cares not why things are practical. But that meaninglessness is meaningful to me. We may desperately want a meaningful life; to say that life has meaning means it has an ultimate purpose. But then it ends – could that give it meaning? Is clinging to life, the unmitigated pursuit of everything wanted, and the denial of death; is that the summum bonum? Or is the highest value in embracing the finality of it all, and consequently freeing oneself of desire and passion, of dying before one is dead, of committing virtual suicide? If so, let us contemplate the finality, and enjoy the Good Death, the dying in advance of death, the so-called ascetic life.

I can understand why philosophers have said that death is their main subject, for that is the end of life, a fact that no one has experienced and lived to tell about. When I think about death I have transcended my own end, put myself beyond my own end. We usually wake up after sleep, so natural death seemed unnatural to our early ancestors. Death is a mystery. Some malevolent spirit killed the person, the ancients reasoned from experience. Or the soul of that person has gone to a better place. Nothing is perfect; there is always a better place, and that may be utopia, or no place; i.e. Nothing.

Beyond the Good Death is the Beyond, the Better Place extolled by funereal preachers. Since no dead person has experienced being dead, that perfect place, where Being is so general that nothing can be known about it, might be called the State of Nothing or Nothing Limited - but nothing cannot be limited for every limit is a defect, and Nothing is perfect, The reader who cannot define God and does not have faith in something may have faith in Nothing, and recognize that faith as the truest faith. By Nothing I do not mean nothingness as if that were a thing, but I speak of not this thing or that thing or any other thing for that matter, for none of that will save anyone.

Certainly the tolerant philosopher and logician Charles Sanders Peirce would not deny me the pleasure of having faith in Nothing because I believe Nothing is perfect and permanent, and thus cling every so tenaciously to what may appear to others as nothing at all or nothingness instead of Nothing. After all, Peirce did not derogate the tenacity of the jaws of authority zlthough he championed the superiority of the scientific method over individual tenacity and social authority.

"I admire the method of tenacity for its strength, simplicity, and directness. Men who pursue it are distinguished for their decision and character.... They do not waste time in trying to make up their minds.... This is one of the splendid qualities which generally accompany brilliant, un-lasting success. It is impossible not to envy the man who can dismiss reason, although we know how it must turn out at last." Furthermore, he would not blame me for my tenacity, for he observed that, "The instinctive dislike of an undecided state of mind, exaggerated into a vague dread of doubt, makes man cling spasmodically to the views they already take. The man feels that, if he only holds to his belief without wavering, it will be entirely satisfactory. Nor can it be denied that a steady and immovable faith yields great peace of mind."

Peirce observed that the tenacious mind set is nevertheless impractical, for individual opinions are bound to differ. Well, at least faith in Nothing is nondenominational and Nothing is difficult if not impossible to deny! Still, the person who has faith in Nothing may be confronted by someone who has faith in Being, or in one being or another. Anyone might be contradicted by someone who believes in something else. Lest people then run around the world like chickens with their heads cut off, authority must be established to establish what must be believed in, or else, for example, really get their heads chopped off. In the alternative, schools might be set up to distract people by getting them to bury their heads in texts like ostriches do in sand.

Peirce preferred the modern scientific method over individual tenacity and social authority. "Where complete agreement could not otherwise be reached, a general massacre of all who have not thought in a certain way has proved a very effective means of settling opinions in a country." Irrational libertarians and anarchists would naturally prefer death to the loss of liberty, hence would cling tenaciously to their tabooed beliefs. Alas for you if you are a lone wolf, for "you may be perfectly sure of being treated with a cruelty less brutal but more refined than hunting you like a wolf."

The advancement of science requires both independent and collaborative thinking. But science is not conscience. Absent some sort of universal conscience, applied science may result in total annihilation. That may be the Total that is really wanted: Nil.

To Be Continued Next Sunday

Bombs Away Florida Lawyer

2011-07-16T15:18:00.000-07:00

Is this affluent Florida lawyer a professional deadbeat?

BOMBS AWAY LAWYER!

By David Arthur Walters

THE MIAMI MIRROR

Affluent Florida Lawyer Refuses to Pay California Court Reporter’s $481 Invoice and Sues Her for Venting Her Frustration in Her Blog

July 13, 2011

MIAMI BEACH - "Some people like to come in under the radar. He's a B-52. He's bombs away," Robert Austin told Colleen Jenkins, reporter for the St. Petersburg Times, for her October 3, 2010, story about “brash Tampa attorney” Michael Laurato, a cigar-chomping, thoroughbred-racing lawyer who may sue someone at the drop of a hat and make life miserable for anyone who dares to try collecting money he owes them if he does not feel like paying them.

According to the Times, the owner of a company that installed shutters in his home said Laurato’s attitude is, “I'm not going to pay you. If you don't like it, screw it, sue me." Laurato refused to pay for the shutters, and counter-claimed that the shutters arrived late for a Christmas party he had planned and then had to call off because he could not realize his vision of being kissed by a beautiful woman under mistletoe placed near the shutters. That excuse did not work: he had to pay for the shutters plus attorney’s fees amounting to $40,000 “by one account,” stated the Times.

"If people sue him for services and goods, he turns around and sues them. He needs to be stopped," veteran court report Susan DeMichelle is quoted as stating. Laurato has made life miserable for DeMichelle, who owns DeMichelle Deposition Reporters of Northern California, for trying to collect a $641 judgment on a $481 bill for the transcript of a deposition taken in a California case involving a Laurato relative. Laurato objected on procedural grounds to the collection effort in Florida, and she had to hire an attorney and travel to Florida in pursuit of justice. A Florida court upheld her out-of-state claim on October 25, 2010, and Laurato is presently appealing its decision.

As a consequence of the extraordinary expenses, DeMichelle claims she has been financially ruined, unable to pay her mortgage since February 2011, and unable to pay her court reporters for their services. She has taken a second job, as a grocery store clerk. She can only hope to recover some of her fees and expenses in the case, and perhaps to find an attorney who will take her case on contingency and sue the affluent yet sometimes deadbeat attorney for maliciously perverting the judicial process.

Bombs Away, again! On March 31, 2011, Laurato brought suit against DeMichelle in Miami-Dade County Circuit Court (Case No. 11-09972CA21) for allegedly libeling him in her blog, which she stated she started in April 2010 to vent her frustrations and protect the public after Laurato demanded a $1,500 settlement of the debt case instead of paying her what she was owed. In April 2008, she said, he had offered to pay her only $250 of the amount he owed, but now he wanted $1,500 from her.

The defamation complaint alleges that DeMichelle posted statements on her blog to the effect that Laurato is “unethical, has been subject to professional discipline, has been subjected to a civil judgment in defendant's favor, is a criminal, has committed insurance fraud, is under investigation by the FBI and IRS, and false advertising, inter alia.” Furthermore, the complaint alleges that “various statements” were made about Laurato “imputing fraud or falsehood, cheating, and dishonesty,” as well as “imputing financial irresponsibility or unreliability to merchants and the failure of the plaintiff to regularly pay his debts.” And, “When taken as a whole, the defendant's defamatory statements inculpate the plaintiff with moral turpitude, criminal conduct, lack of integrity, professional incompetence and malfeasance, impugn the plaintiff's financial responsibility and reliability, and complete unfitness to perform any professional occupation.” DeMichelle, in her answer and affirmative defenses submitted on July 6, asserted that the statements she made about Laurato were true, and she attached exhibits to support that defense.

Curiously, the defamation suit was brought on the same day that The Florida Bar reopened DeMichelle’s complaint against Laurato. Another defense asserted by DeMichelle is that her Bar complaint protects her from prosecution for defamation: “Defendant has an active complaint against Plaintiff with The Florida Bar and therefore has absolute immunity from this lawsuit. The timing of Plaintiff’s lawsuit against Defendant shows it is in retaliation for this Bar complaint. This lawsuit was commenced on the same day.”

It is our lay opinion that the only immunity DeMichelle has in that regard would be for statements made directly to The Florida Bar and not published elsewhere, say, in her blog. However, if Laurato did file the case in retaliation for the Bar complaint, he still could be subject to disciplinary proceedings for violating Florida Bar Rule 4-S.4(d), a catch-all Rule stating that a lawyer shall not engage in conduct in connection with the practice of law that is prejudicial to the administration of justice. See The Florida Bar v James Daniel Eckert, File No. 2009-11,071 (6C), for a recent application of the principle.

Further, if the defamation suit is indeed in retaliation for the Bar complaint, an inquiry may be filed with the Bar to see if Laurato’s counsel handling this case, Miami Beach attorney Howard J. Levine, is aware of that presumed fact and is conspiring with his client in unethical conduct. Curiously, the case was filed in Miami-Dade County, far away from Hillsborough County and Hernando County where Laurato states he maintains offices, and where DeMichelle, in her defense, says he has a bad reputation.

It does appear to this layman that Levine hastily slapped the defamation suit together out of a legal encyclopedia, literally throwing it at the defendant. For example, he asserted that DeMichelle cast Laurato in a “false light.” But the false light tort is an invasion of privacy tort so similar to the defamation tort that Florida courts among many other state courts have refused to recognize it. The false light tort appertains to hurt feelings whereas defamation appertains to a damaged reputation. It does appear that Laurato’s feelings are easily hurt.

Levine also asserts “actual malice”, an unfortunate name for a legal term of art that appertains to the privileged defamation of public officers and public figures where so-called actual malice cannot be proved. Why would he even raise the possibility that his client is a public figure and thus suggest that defense to the defendant? And Levine did not bother to specify exactly what statements were defamatory in the complaint; instead, he attached a copy of some of the blog by way of exhibit, apparently believing that it is a judge’s job to sort through it and decide which statements are actionable in the defamation case as fact, and which remarks are not actionable as mere opinion and hyperbole. All in all, it appears that the attorneys expected the defendant, who resides in California and who is struggling to make ends meet, to simply default.

DeMichelle, in her defense, said any harm done to Laurato is not due to her blog but to his own actions including his bragging, and that he has such a “bad reputation” and is such a “bad actor” that anything she has said about him could not have done any further damage to his reputation. That might be true if he were Adolf Hitler, Charles Manson, or even, in Florida, jailed lawyer Scott Rothstein, but disparaging remarks might only add to the bad reputation of lesser miscreants, and those additions might have a monetary value.

As for the damages, who can say to what extent Laurato was damaged until the matter goes to trial? The complaint asserts that the amount of damage is in excess of $15,000 simply to bring it within the purview of the circuit court, where a non-lawyer forced to represent herself because she is without means to hire an attorney would be at a serious disadvantage given the complex rules of procedure. She could only hope that the judges involved could bend over backward for disadvantaged pro se litigants without actually representing them to the disadvantage of the opposition. To the contrary, we have seen a few cases where judges have assisted lawyers in re-victimizing litigants, particularly women impoverished by legal proceedings.

Laurato is claiming that some of the disparaging remarks, such as the accusation of criminality, are libel per se, meaning that the defamation is obvious on the face of the statement; such a statement even if innocently might be libelous. Theoretically, punitive damages, in addition to compensatory damages, if any, could be imposed. Punitive damages are awarded in libel cases to deter others from injurious conduct. Laurato and his helpers have already virtually beaten DeMichelle to a pulp – she may have to file bankruptcy. What more could Laurato want out of a woman who only wanted her $481 paid as agreed?

DeMichelle, a resident of California, asserted in her answer to the complaint that the Florida court does not have jurisdiction. She has no presence in Florida nor does business in Florida. But now we have the Internet and a state statute that is construed to mean that, if someone in Florida believes they have been hurt by what someone posts on the Internet from anywhere in the world, then the Florida courts can use its “long arm” to exercise jurisdiction over that person.

Laurato would, figuratively speaking, use that long arm to choke a woman to death after his attempts to smother her failed. If there is a just god he will bomb out. If there is none, we can only hope that justice prevails in the Florida judiciary in this case, and that, at the very least, so much calumny will be heaped on Laurato from all parts of the world that he will change his ways or give up the law and make his living hawking cigars at the track.

http://www.scribd.com/doc/60017920/Laurato-v-DeMichelle-Complaint-and-Answer-and-Exhibits

# #

My Thriving South Beach Restaurant Review Business

2011-07-12T07:41:00.000-07:00

MY THRIVING RESTAURANT REVIEW BUSINESS
by David Arthur Walters
THE MIAMI MIRROR

July 12, 2011

MIAMI BEACH – I write under the header, “The Miami Mirror,” and am sometimes referred to as “the opposition press.” I seldom write restaurant reviews. For one thing, I do not have a so-called legitimate publisher for my reviews, so what I say about a restaurant carries little weight, drawing merely a slow trickle of customers.

For example, I reviewed the Thali Restaurant on South Beach’s Washington Avenue. My review was of professional quality even though I paid for the food and was not paid for writing the piece – restaurants do pay thousands of dollars for advertising, which is what most reviews are. I posted it on the Internet at several sites, where it is still getting traffic and will continue to get more and more attention as my work becomes ever more popular.

The Miami Herald wrote a review of Thali a month later. The article was clipped out of the paper, enlarged and pasted onto the front window of the restaurant, where it remains today. I asked the manager to place my article beside it in the window, which he did, but it was taken down two days later, much to my chagrin because my piece was of superior quality and I was proud of it. I was told that someone from the Herald had removed it while the restaurant was busy.

Another factor inhibiting my production of reviews is that I cannot afford to eat out very often, and when I do so it is usually at fast food outlets, where I buy the specials. I love to write about almost anything so I have become a literary slut who gives it away. In comparison, legitimate publishers pick up the tab for writers and pay them well.

The Miami Herald ran a review of South Beach’s Shake Shack; the author apparently ate almost everything on the menu, and I imagine she is rather overweight. The food is reportedly inexpensive, but not for me. I paid $5 for a little chocolate shake. It was not bad except it was not very cold, quickly disappeared, and I thought it was overpriced. Of course everything is relative; there are a lot of rich people in paradise even though the unemployment rate is above 13%. I may try one of the wee burgers some day.

My reviews are not entirely worthless to restaurant owners or to the public. I know from the feedback I get that they generate new business. People ventured into South Beach’s Crazee Olive as a result of my review of its specials. Lesson learned: never write about specials as they almost always disappear or the price is raised substantially. I made that mistake in my review of the happy hour special at South Beach’s Fatburger, where a popular rapper whose initials N.O.R.E. mean “Nigger On The Run Eatin” allegedly squirted yellow stuff on a customer and got busted, and was then reportedly eighty-sixed for life by rapper-owner Queen Latifah. An exception to the disappearing-specials rule is South Beach’s Buffalo Wings & Rings, which I reviewed months ago and has nearly the same specials today at the same price.

I exposed the big breakfast special rip off on South Beach’s Ocean Drive when I wrote about how I picked up my father’s ashes at the post office and took them to the $4.25 brunch special at the Medi Bar & Grill, where I had the brunch. The waitress brought my father’s ashes a tributary cup of coffee when I told her that he was a teetotaler who loved to have a cup of hot and black java. The check amounted to $14.17.

People showed up at South Beach’s Med Pizza after I reviewed it. I focused on the large poster of different kinds of marijuana buds, and on the behavior of the local businessman who raved about the unfairness of pot laws while scarfing down two large slices of pizza. After hearing about what goes on at night at the pizzeria, I was moved to write a follow-up piece, entitled ‘The Bullshit People.’

One advantage of doing art for art’s sake, including writing restaurant reviews for nothing, is being able to tell the truth if you feel like it. Nothing is perfect for a critic. Perhaps someone ought to form a restaurant critic mafia to extort free dinners out of restaurant owners: “Look, pal, if I have to pay for the food tonight, I’m going to tell the whole truth about it.” But the way I operate is that I keep quiet about the bad stuff and praise whatever I like; providing, that is, if people are nice to me. People who treat me right are righteous; they’re all right, because they treat me right. Some are jerks, to say the least.

For example, I reviewed the worst Burger King in the world, which used to be at Collins Avenue and Lincoln Road. The staff, including the manager, was extremely rude, wont to make racist remarks in Spanish about “gringos” and "Americanos." The food was atrocious, and the place was habituated by teenage prostitutes and exceedingly unsavory characters. It was eventually closed down, as was a somewhat better one owned by the same gentleman. Another Burger King in South Beach, on Fifth Street and Alton Road, is called “Homeless Burger,” and is a sort of theatre of the absurd at times, which can be entertaining if you are not in a hurry and are in need of a lump in your belly.

More recently, I stopped by Nespresso on Lincoln Road. The hostess at the front door was quite pleasant, but the employee with her, a man by the name of Jesus, made several rude gestures in my direction and snickered at me as I spoke with her. I ignored him and went into the back of establishment to see the coffee machines on sale, where I was treated to a little tour and a free cup of espresso by an exceedingly pleasant salesman, John Paul. I did not like the espresso, which is sold in little aluminum cups that are placed in the machines for brewing. I thought the taste was lousy in comparison to Starbuck’s coffee or the cheap espresso I enjoy at home, but figured that might be because of the particular type of coffee I had selected for my free sample. I decided to return and pay for an expensive espresso before rendering my opinion. As I exchanging further pleasantries with the hostess at the door, Jesus approached and made several more insulting gestures, so I resolved never to return. One would think a big corporation like that would hire professional shoppers.

I should never say never. I went back to Fresh on Fifth sandwich shop at Fifth Street and Ocean Drive. The insulting truth I told there had been bandied about South Beach. I had called the manager a “pickle chiseler” for giving me the evil eye when I asked for pickle on my hotdog, as if I had just asked him for the world, and demanding that I pay an extra fifty cents for a little relish on a cold hotdog presented on a stale bun.

All the fast food joints I frequented thereafter jokingly asked me if I wanted some free pickle. And I was accused of disliking illegal immigrants, but that was not what I meant when I said that we should tell restaurant managers what they can do with their cold hotdogs before we are chiseled out of America. No, I was certainly not thinking about owners, many of them foreign-born, who prefer to employ illegal aliens for low cash wages, which is a tradition largely ignored by the authorities and me as well.

Willy works at Fresh on Fifth. He approached me the other day and pleaded with me to come back and try the new hotdog, which is now kosher and includes not only free pickle but sauerkraut and onion if you want them, and is presented now on fresh buns instead of the ones that crumble or the ends fall off when you pick them up. He said he was there when I told the manager to shove it, and that, being a Puerto Rican from New Jersey, he took my remarks about America seriously – he said he learned to speak Spanish from Cubans in Miami.

I went back on the Fourth of July and ordered the hotdog, priced at $1.99. It was fantastic, a 100% kosher, all-American hotdog! I saw a dozen being sold as I ate mine, and Willy said he had sold sixty of them that patriotic day. Geez, I thought, they ought to make this guy manager as he sees the opportunity in valid criticism and capitalizes on the ideal behind the complaint. Alas, the new owner doubled the price of the hotdog a couple of days later and upped the price of other sandwiches by $2. Willy said he sold only one hotdog on the day of the price increase.

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On Indigo Stripes - the Gravity of Being an Artist

2011-06-27T13:45:00.000-07:00

Indigo Stripes #2 by Babette Herschberger
www.BabetteHerschberger.com

On Indigo Stripes
by David Arthur Walters
Ãrtéwörldé Artékrítìk

I have torn through the blue lampshade of color limitations, and came out into the white; after me, comrade aviators sail into the chasm - I have set up the semaphores of Suprematism. Kasimir Malevich (1919)

Babette Herschberger's Indigo Stripes #2 took the $5,000 Second Prize in the 2005 ‘art and the city’ competition at ArtCenter/South Florida on Miami Beach's chic Lincoln Road Mall. The competition was sponsored by Artécity, a $100 million condominium development located a few blocks from the ArtCenter colony, in the South Beach Art District at the newly designated "Collins Park Cultural Center" in and around historic Collins Park. The Artécity project is representative of the burgeoning "art-industrial" complex. A triumvirate of Artécity developers have allied themselves with financial resources, politicians, and several cultural institutions, in hopes that ãrté will serve to sizzle real estate sales and renovate the blighted district.

Herschberger's horizontal Indigo Stripes are painted on a 54 x 48 x 2.75 inch wood panel. The indigo color is black-and-blue, the coal-tar black showing through as 'background'. Five of the indigo stripes are relatively broad and cover most of the panel. Most of the indigo stripes are separated by slightly irregular, narrow white lines, giving the appearance of clothes lines or barbed wire. Two or three broader but still relatively narrow, almost pitch black stripes - "black cracks" in the indigo - also divide the indigo swaths. Small white blotches, perhaps starlight, appear in or near the dividing lines, while other slightly larger white blotches appear elsewhere, giving the illusion of tiny figures such as a crawling baby and Elsie the Cow.

The cover of Artécity's excellent brochure - a small poster folded in twelves, arranged to display the contest entries - imitates Indigo Stripes. It is a blue-black photograph of a condominium compound, over which is printed in brilliant white, “art and the city.”

I happen to be allergic to synthetic indigo dye, which is derived from coal tar. My experience with two pairs of jeans, which I tried to tolerate by washing them in bleach a dozen times, usually causes me to associate indigo with furious itching. If I do not check myself, I automatically start scratching my crotch when I see indigo. Yet Indigo Stripes' weighty wall of black-and-blue boards suppressed that reaction because, I suppose, the color as well as the horizontal plane suggests the very extremity of repose, grave depression, bordering on the dead weight of death, beyond which the deceased is weightless.

Of course weightlessness was the subjective objective of the Russian avant-garde painters after the grave catastrophe of the Great War. Artists were especially fascinated by the fly machines and the possibility of flight beyond the blue sky, where they supposed the navigator would be greeted by the white light of the Sun. Cosmic consciousness would have to do until then. In fact, they believed that their supreme art, or art in its highest manifestations, was the sole path to cosmic consciousness and to the eventual realization of utopia. Later on, Milan Kundera wrote a novel about 'The Unbearable Lightness of Being' in one utopia:

"The heaviest of burdens is therefore simultaneously an image of life's most intense fulfillment. The heavier the burden, the closer our lives come to earth, the more real and truthful they become. Conversely, the absolute absence of a burden causes man to be lighter than air, to soar into the heights, take leave of the earth and his earthly being, and become half real, his movements as free as they are insignificant.... Which one is positive, weight or lightness? Parmenides responded: lightness is positive, weight is negative. Was he correct or not? That is the question. The only certainty is: the lightness/weight opposition is the most mysterious, most ambiguous of all."

That question is perhaps another form of what Camus thought was the most important question of modern times: "To be or not to be?" As far as Freud was privately concerned, anyone who seriously asked that question was insane - psychiatry soon became a booming business. Although we usually elect gravity instead of weightlessness, our self-contradictory dialectic or "progress", as developing children and as civilization, is from the concrete to the abstract. Those who do not believe the ideal is real might say that death is the final destination of both philosophies; at which time the psyche is released from its concentration camp into the weightlessness of nonexistence. In between distracting bites and images, we have occasion to doubt whether or not our increasingly symbolic life, un-tethered as it is from planet earth, is a real as we want it to be. But at least we are free, or so we panoptic beings believe as we lock ourselves in our modern caves. The next day, as the turkey vultures circle over head, we behold the grand federal prison in downtown Miami If it were not for its narrow windows, tourists might believe the prison to be a postmodern condominium compound. I need more space.

"Indigo Stripes brings to mind a concentration camp scene," I casually remarked to an ArtCenter associate artist. "I am standing inside a barbed wire fence in the dark blue of deep winter dusk. Two blurry stars beckon to me, but I cannot crawl through the black cracks."

"I don't talk about those things," said the associate haughtily. "Everybody has their own opinions, and it is useless to discuss such things. I like everybody’s art. Goodbye." Case dismissed, and me along with it.

Of course an honest description of my psychological reaction to Indigo Stripes is not intended to insult the artist or her colony. I know nothing of her except her paintings - I suppose they are, to a certain extent, self-portraits, just as this is a snapshot of me. Nor are my remarks meant to be art criticism. Nor did I intend the can of paint I threw up against the wall of a garage when I was a juvenile delinquent to be a work of fine art. Nor should any one imply that I by any means mean to say that Indigo Stripes is not art at all. In my lay opinion it is art. The work brings other artists to mind; off hand: Clyfford Still and Barnett Newman, and the Color Fielders, Larry Poons and Jules Olitsky.

I do not have the faintest idea of the artist's intentions for Indigo Stripes, or what she had in mind when she painted it. For all I know, she thought her lines were alive and superior, say, to fish swimming in the deep blue sea. After all, Wassily Kandinsky, writing from Paris in 1935, said:

"I see no essential difference between a line one calls 'abstract' and a fish, but rather an essential likeness, The isolated line and the isolated fish alike are living beings with forces peculiar to them.... It is the environment of the line and the fish that brings about a miracle.... The environment is the composition.... But approaching it in another way, there is an essential difference between a line and a fish. And that is that the fish can swim, eat, and be eaten. It has, then, capacities of which the line is deprived. These capacities of the fish are necessary extras for the fish itself and for the kitchen, but not for painting. And so, not being necessary, they are superfluous. That is why I like the line better than the fish - at least in my painting."

However that might be, I suppose Babette paints because that is what she really likes to do. Wherefore she does it conscientiously; that is, she paints instead of doing something else. I opine that she requires no verbal crutches during the production process. I presume she feels the things she painted, that she has feelings which she has no need to give mouth to, except perhaps as advertisements to stimulate demand.

Yes, again, Indigo Stripes might be her self-portrait at the time, as if she were imprisoned by the work if she was not the work itself. Indeed, Wassily Kandinsky (1866-1944) once said that an abstract composition has a "soul", a soul dependent upon the integrity of the artist. In any event, I feel Hershberger felt the painting was finished at one point, at which time she submitted it for judgment. Finally, to divine her feelings in this matter, if feeling is to be the universal principle of aesthetics, I think I would have to close my eyes, rub my face and hands over Indigo Stripes, smell it, lick it, chip off some paint and taste it, sleep on top of it one night and under it the next.

By the way, and this is of no small moment in the historical context, I am informed by an ArtCenter staff member that Hershberger complimented my verbal art: in an email to the director of ArtCenter, she called one of my linguistic portraits "crazy". Conversely, there was a time when abstract works such as Indigo Stripes were called "crazy" because they did not clearly represent anything in particular, nor anything of universal import, for that matter, except modern dissolution, decadence, subjective individualism, unwholesomeness or insanity.

The modern distemper and malaise or malease (bad ease) was lamented on at length by the French conservative René Guénon in Crisis of the Modern World (1927). As far as he was concerned, the modern degeneration originated in the West with the repudiation of traditional society. Hence the West is gradually corrupting the rest of the globe, fanatically imposing its version of freedom on the world whether the world likes it or not. Of course the dissolution is according to Hoyle; or rather according to the Hindu texts which outline the regression from the Golden Age to the last stage of the Iron or Dark Age, now enjoyed by de-spiritualized consumers.

To paraphrase our frustrated French guru: Although wisdom and practice, knowledge and activity, are complementary when in harmonious equilibrium, the West has abandoned contemplation for incessant action. That is why a Hindu Brahmana observed that there were only a handful of Brahmanas in the United States among a multitude of Kshtrayas (warriors). Action, ceaseless change without contrasting permanence, competition, and war are dominant in the West. Analytical, divisive, head-in-sand thinking; infinite division of labor into meaningless functions; disintegrative multiplicity and atomizing individualism; - dominate the final imperial civilization ruled by the dark forces of corporate-board tribalism. The Western culture has reduced itself to worshiping the absurd in its mindless pursuit of temporal happiness. The sciences are divorced from morality: the higher the technology, the lower the moral standards. Religion is degraded to commodity fetish and its abstract one-god, Money. Wherefore ceaseless change, perpetual innovation and the like are idolized by the West, pursuant to its scientific-industrial revolution. In art, the plastic art called Action Painting helped blaze the path to general instability.

Many neo-Kantian pioneers of abstract modern art, dissatisfied as they were with the bourgeois materialism of their disciplined therefore self-hating caste, and ignoring Kant's precautions about the illusions inherent in transcendental dialectic, thought their path led to the absolute transcendence of mind over matter. Ironically, they become anti-intellectuals, replacing mind with irrational feelings. In other words, they thought sensational intuition was divine intuition. Alas, after God was assassinated with Nature's laws, Nature herself was denuded and de-spiritualized; existentialist Man proclaimed the absurdity of his world, and soon realized that the assassination of the projected social god has led to his own nothingness. God is dead. Nature is dead. Existence is dead.

Everything is permitted. Everything is absurd. Everybody is deaf. Never mind. Nothing matters.

That sort of craziness, sometimes unwittingly represented in contemporary abstract art, is no longer called crazy. Modern art is traditional now, and even conservative in the context of fleeting contemporary art. Any sort of coherent verbal expression purporting to be truthful or even artful in its finest sense is deemed to be insulting and crazy and is promptly denounced as incipient fanaticism which might lead to concentration camps and ovens if not hard labor in prisons.

Artists, at least, are supposed to be absolutely free, and those who really believe that are often the hungriest of their lot. The great Kandinsky had his conservative reservations on the account of freedom. He said abstract art should not be completely divorced from nature (of which we are a part) lest the result be merely decorative, "like a rug or necktie". Yet, in the final analysis, Kandinsky declared the artist to be, essentially, absolutely free, period; so there, take that.

After all (we interject for good measure) the various ideological "isms", even the "Artistic Urbanism" of post-modern Miami Beach's Artécity, are methodological antitheses of truly creative art.

We should feel free to think about art no matter how we feel, for gross sensate feeling is not all there is to being human. Perception is not mere sensation: perception is sensation judged. Emotion is not just feeling: although the feeling side is on top, there are two sides to the coin of emotion: feeling and thought. And if we would have the truth about the number of senses, the brain is a sense organ too, and thinking itself, no matter how abstract, is fine feeling, is "sublime" feeling. So the divorce of feeling from thought is a false dichotomy although convenient to some ends. Without associated thought, an abstract painting, no matter how much "feeling" is incorporated - especially nonsensical "pure feeling" - cannot exceed decoration.

Piet Mondrian said as much in reverse when he observed that the new, "flat" paintings are not decorative when they allude to things "much more inward" - Indigo Stripes, from my perspective, has depth. The critical dissociation of art from thinking is a shallow and superficial way of thinking. In fact, to get and to hold an appreciative public, modern artists have felt obliged to explain works that might otherwise appear to be absurd or meaningless. Manifestos and other formal statements have been composed to that end, many of them, in accord with the times, incoherent or absurd.

An artist at ArtCenter filled me in on the contemporary elements of art, "new" elements which are allegedly replacing the "old" elements of color, line, and form - incidentally, Indigo Stripes has color, line, and form.

"The successful ArtCenter artist must have three things," he said, "a concept, a medium, and blah-blah-blah."

"Well," I responded, "the blah-blah-blah is not so good, it gives me the blahs. I think artists should hire artistic thinkers and writers. That would enable them to devote themselves to what they do best."

But no, the art of rhetoric is denied artistic status nowadays. People like their writing in the flat nowadays, like newsprint and newspeak; impersonal, as if it were true. Emotion must be avoided: meaning moral values should e out of the picture.

The remnants of the manifestos are largely subjective today. Only the artist, by virtue of some sort of divine right, may define his art. While at ArtCenter, I made the grave mistake of calling the grotesque subject of associate artist Sara Stite’s watercolors – creatures with hirsute arms on headless fleshy objects, torsos with gaping mouths, hairy pelvises with feet and so on – “monstrosities" and "monsters".

"Don't call them that, you can't call them monsters, you have to ask the artist what they are," imperiously stated another ArtCenter associate.

"But of course," I said, amiably but sarcastically, "There are no standards for anything at all, therefore everything is equal. Everything is absolutely justified by its creator."

She thought I was serious; my remark drew an approving smile. I silently recalled that a friend of the Russian Cubo-Futurists envisioned the fourth dimension as a sort of utopia where an infinite number of words would be needed to name each object according to the subjective prejudices of everyone involved.

All in all, I think another bonfire of the vanities is called for today, but not a revolution. The time is nigh to burn the clutter framing the fine pieces. We have no cause to fear for the destruction of the masterpieces themselves. Savonarola, contrary to historical gossip, did not demand the destruction of the dearest objects: as the flames rose on Florence corners; the brisk trade in precious metals and fine handicrafts and fine art continued apace. As for the modern revolution, the accelerating dissolution and disintegration of traditional society was represented by modern art, but it was not painted right away. In 1857, New England Transcendentalist Orestes Brownson anticipated twentieth-century complaints about the atomizing individualization of modern society:

"The work of destruction commenced by the Reformation, introducing an era of criticism, had, I thought, been carried far enough. All that was dissoluble had been destroyed, and it was time to begin the work of reconstruction - a work of reconciliation and love.... The first thing to be done is to cease our hostility to the past."

Modern artists of iconoclastic disposition generally disliked history, tradition, convention, anything that smacked of authority. Down with History! Down with thinking and language! Death to art! Down with prostituted beauty! Down with frivolous and elegant and pretty art! Given modern art's original contempt for history, it is hardly surprising that contemporary artists - of course every artist of every time is contemporary - know little of their roots or the lessons and alternatives that history offers. Every school kid should know that the modern artistic revolution was born between two world wars, that it was a revolution against war and the perfectly logical justification for murdering millions of people. So much for the cogent, enlightened reason of the vultures under the scorching Sun, they said, as their anti-intellectual manifestos grew increasingly absurd. They threw traditional art into the bonfire of its own infernal Sun, and proclaimed a complete break with history.

At each moment of the past," declared Piet Mondrian (1872-1944), "all the variations of the old might have been called new. But this was never the new as such. For we must not forget that we are at a turning point in the history of culture, at the end of everything old in the global sense. The divorce between the old and new is now absolute, definitive. Plastic art must move not only parallel with human progress, but must advance ahead of it."

In Victory over the Sun (victory over conventional art), the Russian Suprematists declared themselves immortal as well: "Everything is good that has a good beginning. The world will die, but for us there is no end." (1913)

Realists, sickened by the customary fictions, made the first break, and it was not long before invisibility became reality and every example in the world was rejected off hand. Everything must be smashed to bits, preferably into atoms. The Cubists tried to abolish conventional rules of perspective, to representing an allegedly omniscient view of an object, a view from all sides at once. Perhaps a divine artist might imagine such a thing, but a realistic representation of omniscience is impossible. We are left with allusions to the omniscient view, by means of finite multiple perspectives. But sight is only one sense, and to see is not to know everything. An "omniscient" grasp of an object is better sensed by wrapping the hand around it. Touch is at the foundation of intelligence. The manipulative hand helped teach man (manu – he who draws out thoughts) reasonable procedures, yet reason never left behind its origin with things in womb and hand.

As far as Kasimir Malevich (1878-1933) was concerned, cubist fragmentation did not go far enough. Smash everything; what is left is good, cried an anarchist. After all, when nothing seems to work, it is best to start with Nothing, if one can get there by smashing things, for Nothing works.

"The Cubo-Futurists piled objects in the main square and destroyed them, but they did not burn them. Pity!" exclaimed Malevich, once the foremost supporter of Russian Cubism. Pulverizing things frees the artist. Malevich had flown farther than Cubism, where no artist had gone before, into the Nothing beyond dimensions, a discontented space where, if Nothing exists, one has all the benefits of weightlessness.

"This space takes the place of cosmic space without any determination by relation of a person or a thing. It is without dimension, without orientation; it ignores right and left, high and low, near and far." I have capitalized 'nothing' because nothingness is not intended, but rather the pregnant feeling of its infinite possibilities.

Malevich painted his void white, a white square on white canvass, to indicate infinite space, into which he wanted to launch a Suprematist satellite. The black of his black square ("rectangle"), he said, represented anarchy, and the black cross, his death. A square felt rather good to Malevich: "It is difficult for you to get warm in the face of a square," he wrote to a critic, "accustomed as you are to get your warmth from a sweet little face.... The secret of the incantation is the art of creation itself, and it lies in time, time which is greater and wiser than swine!"

Well, a man may be a square, but he hopes for something beyond geometry. In 1915, Malevich wrote: "I have transformed myself into a zero of form, and have gone beyond 'O' to '1'." But after waxing eloquent on the square, he effuses: "A blissful sense of liberating non-objectivity drew me forth into the 'desert,' where nothing is real except feeling.... and so feeling became the substance of my life."

"The general philosophical path of these trends," he declared while questioning imitative art, "leads to the disintegration of things, to the non-objective and to Suprematism, as a new utilitarian body and to the spiritual world of phenomena.... We are going to work on new creative constructions of life...." Moreover, " I think that freedom can be attained only after our ideas about the organization of solids have been complete smashed. This liberates each unit from the single, complex mass made up of units of energy."

Wherefore Malevich would atomize everything into energetic particles, witnessed by mere mortals as material forms, and he wound up with the pure feeling corresponding to pure colors:

"Everything is linked and at the same time separate in its own motion.... This notion was the impetus for breaking up the visual complexity of a solid and dividing its mass into the separate colors of Suprematism.... My research has shown that color in its basic state is autonomous; that is, each ray has its own energy and characteristics. When colors are mixed the produce different hues and release new color energies.... In Suprematism the mass of energy breaks down into individual color constructs on the two-dimensional plane - with the result that each plane or volume becomes an independent unit powered by its own motion. Thus, in expressing pure colored form, the colored period of Suprematism discovered the very essence of color.... As a result, Suprematist atomization of the picture and the reduction to single color has released the action of atomization.... This process of isolation has created the form of the black or colorless square, a form that in its atomization offered all kinds of other forms, and these in turn were painted many different colors.... Such forms, of course, do not express anything related to the objective world, and in the viewer's mind they are non-objective. Consciousness now begins to operate with supremes, with individual units - the signs of dynamic mathematical connections. Expressing this dynamic functioning is the primary purpose of consciousness. The forms are built exclusively on white, which is intended to signify infinite space. The tactility of this dynamism, however, beings to assume importance in this kind of composition."

Suprematism, then, as Malevich defined it, was pure feeling of pure color. Of course white is the pregnant color, the "color" of sunlight unbent into its spectrum. The pure feeling is the transcendental feeling of the new man, the superman, the godly artist whom several philosophers thought would lead the way to utopia: "Art in its highest manifestation is a path to cosmic consciousness," declared a mystically inclined philosopher. But the philosophers soon changed their mind, and, like Plato, they concluded that artists cannot get there except by lucky flashes of the transcendental intuition once associated with enthusiasm ("god-possession").

Critics declared the Suprematist scheme absurd. Of course it was logically absurd, and intentionally so. Every A is, at the same time, not-A. In 1911 Ouspensky praised art for freeing itself from three-dimensionality: "All art is just one entire illogicality."

The artistic magus is a clairvoyant, a Superartist who discerns the nature of the ideal world behind the veil of the illusory "real" world. Malevich's circle strove to transcend logic with their "alogical" art. To get at the truth, which is a moving target, one has to contradict oneself from time to time - even the orthodox critic Ruskin said that he liked to contradict himself several times in every article for good measure.

When Malevich eventually repudiated "all aesthetic beauties, experiences, or moods," he repudiated feeling; hence some critics think that, despite his profession of pure feeling, Malevich was not a feeler at all, but rather a frustrated thinker who needed to work on his writing skills. As for his black quandrangle, some time after hanging it high on the wall like a Russian religious icon, he denied having mystical inclinations and said the Black Squre represented nothing but itself and his relationship to it. We should recall here that Ouspensky double-crossed the Suprematists. As we have seen, he said that all art is irrational, and said the irrational artists would lead the way into the fourth dimension; but he was not pleased with their art, and denounced it in the next addition of his masterpiece.

One version of the spiritual utopia intuited by the Russian Suprematists was realized in the concrete Soviet Union. Piet Mondrian, artist-Theosophist, took up the question of the inherent instability of the subjective nature of the Russian revolutionary movement. He envisioned a new city on the hill to resolve the dissolution into a sort of tribal commune where everyone would enjoy the same feelings and thoughts about art. The private, home-sweet-home life as well as street life would be extinguished in Mondrian's city, and replaced by a "unity formed by planes composed in neutralizing opposition that destroys all exclusiveness."

I prefer the glass city of Zamiatian's WE. Mondrian moved to New York, where he gave up his static city after becoming fond of skyscrapers and things African, boogie-woogie for instance.

What remains in store for the world today, for the United States and Miami Beach, remains to be seen. Let Indigo Stripes, which, depending on your prejudice, progresses or regresses from the blank black or white square of Suprematism, represent for our purpose tea leaves steeped in a cracked pot of indigo held together by tar and cement. Here, in the gallery at ArtCenter/South Florida in Miami Beach’s chic South Beach, we witness a representation of the marked reluctance to arrest the general decadence and dissolution because it provides a great deal of money to the sponsors. We witness a tendency to call those who protest the insanity they call freedom, “crazy”, and to recommend their commitment to therapeutic institutions, where art is dope.

On one end of our grand scheme we find the affluent, whose government buildings are virtual fortresses, penned up in gated compounds manned by guards and voluntarily locked down in their condominium caves, or residing in freestanding homes with bars over windows and doors. All that to protect themselves from outlaws, i.e. “free” people. On the other end we find prisoners confined in prison cells and in concentration camps, at an average cost of $70,000 per annum, an average that gives us cause to believe that involuntary prisoners should have luxurious, three-bedroom condominiums on the ocean instead of sharing the bottom bunk by the steel toilet.

The Artécity complex, wherein Indigo Stripes will rest in state, looks like a pink prison complex in the January 2005 Miami Visual Arts Guide, complete with an exercise yard. And the indigo city on the “art in the city” brochure also has the appearance of a prison.

None of the above is intended as an insult to anyone at all, but it will undoubtedly be perceived as such. It is merely another sign of a great rectification pending. We must not blame the revolution on the enthusiastic artists, many of whom do not understand the nature of their visions; they do not know the mechanics of their motivation. Many artists have become automatic feeling machines. They are, as Mondrian predicted, "living machines, capable of realizing in a pure manner the essence of art."

No, do not blame the revolution on our artists or poets. Poets, long before they became surrogate gods, were makers not of truth but of poems revealing same. And artists, before they rid themselves of one-gods and became subjective gods, were not revolutionaries, bound to creative-destruction as things moved along for the hell of it. Modern artists certainly do not deserve much of the blame, censorship and repression laid upon them for twentieth-century revolutions. Nor will they deserve the blame for the escalating neoteric terror of our twenty-first century.

As for me, my meditation on Indigo Stripes has moved me to become a painterly painter. Indeed, I shall be the most radical of the painterly painters. And in this my endeavor I shall do everything by doing absolutely nothing, thereby transcending all the dimensions, and thus establish the dictatorship of the painterly masses without a painting. To that end I shall apply to ArtCenter/South Florida for my own studio, in the form of a white sphere, that I, a painterly painter without a painting, dressed in black, may be the world's greatest masterpiece, setting the stage for the assassination of mediocrity and incompetence in art.

The Florida Bar sat on its "bureaucratic asses" while an influential member maliciously prosecuted a client for complaining to it

2011-06-27T07:13:00.000-07:00

INFLUENTIAL LAWYER SUED FOR MALICIOUS PROSECUTION
The Florida Bar sat on its “bureaucratic asses”

By David Arthur Walters
The Miami Mirror
June 27, 2011

MIAMI BEACH – David Johnson and his wife Jane Johnson, former residents of Palm Beach County, have filed a complaint in the circuit court of Palm Beach County against Palm Beach attorney Allen H. Libow, his wife Melissa Libow, and Boca Raton law firm Libow & Shaheen LLP et al, for malicious prosecution, conspiracy to commit malicious prosecution, and abuse of process, in regards to a defamation action first asserted by the defendants against the Johnsons in 2004 for filing an absolutely privileged complaint against Libow with The Florida Bar, the agency of the Florida Supreme Court that licenses lawyers in the state, regulates their conduct, and presently represents mainly the political and business interests of the dominant professional elite.

The defamation suit against the Johnsons was prosecuted by Mrs. Libow’s father, affluent Miami attorney Arthur W. Tifford, who has not yet been named as a defendant in the Johnsons’ malicious prosecution complaint, and who has now appeared to defend his son-in-law from that complaint. According to the court docket, attorneys Lisa Weiss and Bruce L. Udolf of Boca Raton law firm Udolf Libow have appeared to defend Mrs. Libow. The Johnsons are represented by Steven Jeffrey Rothman. (See case 502011CA001121XXXXMB).

Mr. Johnson’s long-running Bar complaint, originally filed on August 16, 2004, alleged that Mr. Libow had filed a false police report as part of an attempt to extort a $100,000 settlement for a disputed legal fee amounting to $1,621. According to Mr. Johnson, that amount due had allegedly been reduced from $5,014 after Mr. Johnson, who had already paid several thousand dollars in fees, demanded an accounting and discovered that he had even been billed for his attorney’s failure to appear for him in the case. The law firm even billed Mr. Johnson another $397 for itemizing the bill, at the hourly rate of $200. At one point, Mr. Libow, who is also a certified public accountant, allegedly told Mr. Johnson that clients at his firm had been overbilled for research by his lawyer, that downward adjustments to one client’s bill had been $11,000, and that he, David Johnson, did not owe the law firm a dime; but he changed his mind when Johnson decided to let that attorney, who had withdrawn from the Libow law firm and whom Mr. Libow was defaming in his conversation with Mr. Johnson, continue to handle his case. The suit for the $1,621 fee balance was brought in the small claims court, where Eric Stockel, an attorney for the Libow law firm, admitted that the complaint to the Bar was privileged; nevertheless, Mr. Libow asserted a defamation cause of action there and managed to have the issue removed to the circuit court (see Libow v. Johnson and Johnson, 05-3299 CAA1, 502005CA003299XXXXMB) where it was prosecuted by Mr. Tifford. Mrs. Johnson was named in the defamation suit although she had not signed the Bar complaint against Mr. Libow and other members of his firm.

The Bar complaint stated that Mr. Libow had claimed that his wife put him up to making the police report, and complained that Mr. Libow was making “over death threats.” Mr. Johnson opined that Libow was emotionally disturbed, having likened his Bar complaint with the January 2005 murderer of Mr. Libow’s babysitter, Shanette Jones, and her two daughters, Ashley and Joanna Robinson; the girls’ step-father, who had attempted suicide, was suspected in the shooting. The family had made a lot of money in real estate; Mr. Libow would represent Shanette Jones’ parents in the wrongful death civil suit.

Mr. Johnson disparaged Mr. Libow’s character in his complaint to the Bar, stating, for example, that, while “Jessie James used a horse and a six-gun to carry out his robberies, Mr. Libow uses a computer and the United States Mail to carry out his.” He further claimed that Mr. Libow carried out said robberies on “less sophisticated clients”; had a “total absence of ethics”; was guilty to “concocting a story and filing a false police report”; “modified (forged)” email; was a pathological liar predisposed to “wild accusations”; overbilled and used unlawful collections methods; abused the legal process; was a “psychotic misfit” with a “psychotic agenda,” besides being a “creative, twisted, lying son of a bitch.” After nine months had passed since Mr. Johnson filed the original complaint, he besought the Bar, which had yet done nothing, to “get off your bureaucratic asses and do something before this twisted madman lands us all on the six o’clock news.”

The defamation suit against the Johnsons was ultimately dismissed by the circuit court and the dismissal was affirmed on appeal. The lower court held that most of the statements made were mere opinions or were hyperbole not to be seriously construed as statements of fact, and that other assertions were not otherwise actionable. The few fact-like statements that would be actionable if false were protected or absolutely privileged because they were made in a complaint to public officials for redress of grievances. Therefore there was nothing to be taken to trial. But that was not the end of the duress for the Johnsons, who refused to be slapped into silence and who claimed they had fronted nearly a quarter million dollars to defend themselves, which they were at a loss to fully recover.

As for The Florida Bar, it took no action against Mr. Libow or other lawyers at his firm or against his father-in-law, Mr. Tifford, even though threatening to file or filing a suit against someone for bringing an inquiry or complaint to The Florida Bar is a prima facie violation of the ethical standards promulgated by the Bar.

For example, in The Florida Bar v James Daniel Eckert, File No. 2009-11,071 (6C), The Florida Bar averred that Mr. Eckert had represented Jean Camposecco in post dissolution of marriage proceedings, and that, while the case was pending, the opposing party, Robert Camposecco, filed an Inquiry/Complaint form against the lawyer with The Florida Bar, which it received on March 4, 2009, alleging that Mr. Eckert had blackmailed him, and had personally called him at home although he was represented by an attorney, one Phillip McLeod. Those complaints were dropped or dismissed by the Bar although it did not create a record explicitly discharging them.

However, the Bar on its own initiative charged Mr. Eckert with threatening to sue Mr. Camposecco with defamation for bringing the complaint. On December 30, 2009, the Sixth Judicial Circuit Grievance Committee found probable cause for further disciplinary proceedings, that the Respondent had violated Florida Bar: Rule 4-8.4(d), stating that a lawyer shall not engage in conduct in connection with the practice of law that is prejudicial to the administration of justice. The probable misconduct was stated as: “On or about July 9, 2009, Respondent wrote a letter to a complainant threatening to sue him for defamation and damages unless he withdrew his Bar complaint and issued a letter of apology within five days.” The lawyer and his attorney claimed ignorance of the Rule and the common law involved, and copped a plea.

To the best of our information and belief, The Florida Bar has not been sued for its gross negligence or otherwise taken to task for its dereliction of duty in the Libow v. Johnson matter although it has been aware of the infraction of its Rules since 2004 (the Bar has as recently as this 2011 reviewed documents in the matter) yet did nothing to stop the malicious prosecution of the Johnsons, which would have saved the courts and everyone else concerned a great deal of aggravation, time and money.

It is reasonable to assume that the power elite at the Bar have a favorable relationship with Mssrs. Libow and Tifford, or that the persons involved at the Bar are incompetent; in either case they should be discharged from their offices forthwith, as they would be if they worked for a good law firm, and perhaps subjected to Bar investigations themselves. That is highly unlikely to happen, however, unless the Press, the so-called fourth branch of government, is willing to shed light on the matter, something that mainstream publications including the Miami Herald and the South Florida Business Journal have failed to do, despite being fully informed of the particulars of the public record over the past year, presumably because professional journalists dare not alienate the judiciary, the source of their press shield and one of their main news sources.

# #

Outrageous Crunch Fitness Bankruptcy Ripoff

2011-06-17T10:10:00.001-07:00

SERIES THE CRUNCH FITNESS FIASCO

THE OUTRAGEOUS CRUNCH FITNESS BANKRUPTCY

by David Arthur Walters
The Miami Mirror

June 17, 2011

MIAMI BEACH – Crunch Fitness’ Chapter 11 bankruptcy reorganization was a travesty, the purpose of which was to rid the enterprise of unsecured creditors owed $25 million, including funds advanced by members, amounts due on real estate and equipment leases, accounts payable to vendors, and money owed to former Crunch CEO Marc Tascher on his management contract. Angelo, Gordon & Co., the private vulture investment firm, having gotten rid of its patsy, Tascher, whose excellent reputation in the industry was used to obtain investors when Crunch was originally purchased from insolvent Bally Fitness, had worked out a hell of a deal in advance of the planned Crunch bankruptcy.

Angelo Gordon bedded down with Mark Mastrov’s New Evolution Ventures LLC after disposing of Tascher. Fitness industry icon Mastrov had sold his interest in 24 Hour Fitness as part of a $1.6 billion leveraged deal, and was apparently looking for something to do and places to invest his gain after he and the purchaser, private equity firm Forstmann Little & Company, had a falling out and he “resigned” as chairman of 24 Hour Fitness, which he had co-founded in 1983. Together, Angelo Gordon and New Evolution Fitness used CH Fitness Investors LLC, their stalking-horse partnership set up for the purpose, to snatch the Crunch assets out of bankruptcy, to be managed by Mastrov and his defected 24 Hour Fitness crew – Jim Rowley, his old colleague, would take the helm of CH Fitness as CEO. A financial advisor, FocalPoint Securities LLC, was brought in to secure outside bids, but of course no one would outbid CH Fitness’ $40 million credit bid for the kit and caboodle. Although the failed Crunch as a whole was worth less than the credit bid if the outfit was run in the same fashion, Angelo Gordon and New Evolution Fitness and investors stand to realize substantial gains if the McDonaldization of Crunch goes well, as we have discussed previously in ‘Welcome to McCrunch’.

According to a May 6, 2009, Bloomberg report, U.S. Bankruptcy Judge Robert Gerber complained that he was having a hard time not yelling at the lawyers for renting out the courthouse to get rid of unsecured creditors. He said Crunch Fitness’ bankruptcy documents violated bankruptcy law and failed to disclose the nature of the plans to sell Crunch to Angelo Gordon and its partner.

In fact, Angelo Gordon owned 92% of prospective acquisition company CH Fitness, the 8% balance being owned by Mastrov’s New Evolution Ventures et al. Angelo Gordon also owned 90% of the equity of debtor AGT Crunch. CH Fitness, which had already bought the Goldman Sachs primary secured debt owed by AGT Crunch, would use part of that $57 million secured debt claim, $40 million, to buy the company in bankruptcy via a credit bid, and write off any deficiency – the deficiency claim would amount to about $22 million because of additional loans. It also had around $23 million outstanding under second-lien notes, due to AG Super Fund, an Angelo Gordon entity, which would be waived. Unsecured creditors would get shafted for $25 million – that was the point of the bankruptcy, which looks rather mean given the billions managed by Angelo Gordon and the rumored $400 million net worth of its bedfellow Mark Mastrov.

Judge Gerber said the credit bid provision was “one of the most outrageous provisions I’ve seen in 40 years of practicing law.” Citing his concern with the millions owed unsecured creditors, much of which was due to New York landlords at the time, the judge said, “You are proposing a sale to yourselves under the rubric of calling it a credit bid to another party, and would use the Debtor in Possession to wipe out another party.” The U.S. Trustee noted that six of the company’s seven board members were controlled by insiders.

Dechert, LLP, the prestigious New York law firm that had done considerable business with Angelo, Gordon & Company, applied to the bankruptcy court to represent debtor AGT Crunch. Dechert reveals that its history is “long and impressive.” That purportedly illustrious history began in 1875; one of its founding partners even served as President James Garfield’s attorney general; another founding partner wrote a book entitled Principles of Equity. Today Dechert states that it is a “leading international law firm” with 21 offices in the United States, Europe and Asia. Needless to say, its lawyers are internationally acclaimed; some of its lawyers have become judges; and the firm represents headline-making players on the global economic scene. Its most important core values are client service and becoming a stronger firm, not to mention the honesty and integrity most firms mention in their mission statements.

The esteemed Dechert lawyer Charles I. Weissman represented the buyers in the original purchase of the Bally Fitness and Tascher clubs, which would be combined into the new Crunch Fitness and eventually run into bankruptcy. Weissman represents private equity sponsors and distressed investors, public and privately held corporations, special committees, and company management in connection with mergers and acquisitions, corporate finance, and restructuring matters. He has structured and negotiated friendly and unfriendly transactions on behalf of buyers and sellers in leveraged and unleveraged deals, represented issuers and underwriters in connection with equity and debt financings, and has advised on consensual and distressed restructuring transactions inside and outside of bankruptcy. When the Crunch venture failed, he represented the buyers of the bankrupted Crunch. It appears that his underlying responsibility was to the interests of Angelo Gordon, no matter which entity he ostensibly represented

Dechert’s application to represent AGT Crunch in the bankruptcy proceeding disclosed that the firm had received $1.3 million fees from AGT Crunch in the year just prior to the bankruptcy petition – we note that it received another $201,269 shortly thereafter, billed in June 2009. $682,560 of the fees received in the year prior to the petition was related to the filing of the bankruptcy. The Dechert statement to the court had declared, “Since the closing of the acquisition, Dechert has represented only the Debtors and did not represent Angelo Gordon & Co. or any of its affiliates in matters relating to the Debtors.”

United States Trustee Diana G. Adams, in her June 15, 2009, Objection to the Debtor’s Application to Employ Dechert LLP as Bankruptcy and Restructuring Counsel, argued that Dechert failed to make adequate disclosures, misrepresented its interests, and that its concurrent representation of debtor AGT Crunch and creditor/investor Angelo Gordon violated bankruptcy law and rules of procedure as well as New York State’s Ethics Rule.

“Dechert,” she said, “misrepresented that since the closing of the Bally Acquisition, Dechert has not represented Angelo Gordon or any of its affiliates in matters relating to the Debtors. In fact, the [Shmuel] Vasser Affidavit failed to disclose Dechert’s representation of Angelo Gordon in the Gem Star Litigation, nor does it even disclose the EP Litigation. These representations should have been known to Dechert as of the Petition Date because the partner involved in the Fitness Litigations is involved in this case.”

We shall address elsewhere the fascinating Gem Star and EP litigation mentioned by Adams. The lawsuits were brought by the owners of two clubs managed by Marc Tascher’s management company before it was purchased by AGT Crunch Acquisition LLC.

Dechert naturally offered to remedy its conflicts after they were uncovered, and claimed that representation could be divided between it and [unsecured creditor] Committee counsel [Ronald Friedman of Silverman Acampora] in the event of conflicts. To that Adams said, “Dechert suggests that to the degree that it cannot represent the Debtors as counsel on any issue, Committee counsel can perform its duties. In every bankruptcy case debtor’s counsel and committee counsel have differing fiduciary duties running to different, and often adverse, constituencies. For Dechert to propose that it can cure its conflicts by relying on Committee counsel to do its job, when even the Court noted that this case was filed in order to wipe out the unsecured creditors, is remarkable.”

Well, then, Dechert figured it could resign from Angelo Gordon; but the Trustee disagreed: “Dechert proposes to resign its current representation of Angelo Gordon in the Fitness Litigations to cure any conflicts going forward,” the Trustee noted, “however, the horse has already left the barn. Even if it were possible to cure the conflict by withdrawing, the services Dechert has provided to the Debtors in the bankruptcy to date have been completed while it had a ongoing conflict. Consequently, any fees incurred by Dechert prior to the approval of this retention should be disallowed or disgorged.”

This was certainly not the first time Dechert had been accused of enjoying conflicting interests: for instance, was see that Dechert was sued in October 2004 over fees paid to the firm for its work advising an investor group on the acquisition of a paper mill in Brevard, N.C., RFS Ecusta, which eventually went bankrupt. The mill’s assets were acquired in 2001 from P.H. Glatfelter, a Pennsylvania paper products company. The plaintiffs claimed that the transaction was fraudulently structured for Dechert to receive around $1 million in fees. Dechert admitted it received the fees, but claimed the payments were made in good faith. U.S. district court judge Graham Mullen approved a settlement in the case with Dechert funding the entirety of the $1.4 million payment.

We shall inquire of the Clerk of the Supreme Court of New York whether or not a complaint has been brought against Shmuel Vasser, the Dechert law partner who signed the affidavit regarding the Angelo Gordon/AGT Crunch conflicts, or anyone else involved, for the alleged violation of the rules governing the practice of law.

Crunch Fitness Bats and Cultures for Musclemen, Paintball Gamers, Frustrated Conmen

2011-06-16T07:55:00.001-07:00

By David Arthur Walters
The Miami Mirror June 16, 2011

MIAMI BEACH – Conspiracy theorists will recognize a familiar pattern in what transpired. A venue of vultures, sometimes referred to as a committee, appears lovely as its members circle overhead with wings swept back, but their hairless heads, much suited to the purpose, are not pretty when seen on the ground with ghouls feeding on a corpse. Prior to the arrival of the esteemed scavengers, a brood of bats in conventicle had nearly had its fill of the lifeblood of the hapless beast.

The brood of professional bloodsuckers nested in a network of cooperating companies usually has an innocent figurehead available for their darksome conniving, a highly respected man of an industry, they care not which, whose appearance will reassure investors needed for the transfusion. This victim will be lauded by the predators before he is drained and tossed aside nearly lifeless. Trustworthy men are much too trusting. He himself may have approached the predators with his great idea, pointing at what would become so much plunder to the vampire colony. The colony notes well that the floundering organization contemplated will have ready cash flow to feast on for a few months at least. A shyster from a prestigious law firm is brought in to sanction the sanguinary process – naturally the same firm will continue to feed until the corpus is ready to sing the courtly blues, and then, shifting its shape into that of a turkey vulture at the courthouse, move for further fees during the bankruptcy proceedings.

Ironically, some of the most intelligent people are most easily conned, and the unpresuming mark, who had founded and grown one of the largest businesses in the industry, throws much of his hard earned fortune into the deal with the carnivores after he is promised equity and a management contract. Soon after the deal is made with him and the other investors, the foregone crisis is taken up by the crisis management team; he is shoved aside and the vampires suck the lifeblood out of the corporation, bleeding it almost to death with fees. When drained nearly dry, the pallid organization is tossed to the vultures for reorganization. In Crunch’s gruesome case, the choicest meat will emerge in the mouth of the stalker hidden among them, to be dragged away and converted into a franchise operation.

The sharpers are so sharp that their chumps barely feel the knife. The thoughtful man has lost his shirt along with his dream, but he is so considerate and naïve that he does not realize a dastardly deed has been done unto him by the manicured mobsters that infiltrated the equity firm, the capital advisor, the law firm, and the crisis management firm. Let us not blame him or call him stupid for his credulity, for the society is at fault: money is considered to be the mark of genius, and the more one has of it the better a man supposedly is; how could highly respected people making millions of dollars of year off billions of dollars of investments be bad?

Historical examples demonstrate that our conspiracy theory is not as preposterous as it may seem. We do not want to paint everyone concerned black, but playing paintball is in order here, and we shall recognize some of the same highly respected players that appear in the Crunch fiasco:

#

‘NEW YORK – November 17, 2006 – The competition between National Paintball Supply, Inc. (“NPS”) and Pursuit Marketing, Inc. (“PMI”) has turned to cooperation, as the two paintball industry pioneers have announced a business combination.

‘NPS and PMI today announcced that they have closed separate transactions which have the effect of combining their operations. Angelo, Gordon & Co., a $10 billion alternative asset management firm, with advice from Sagent Advisors Inc., an investment banking firm in New York, provided the equity capital to facilitate the transactions….

‘The history of the companies goes back decades. In the spring of 1982, Jeff Perlmutter and David Freeman visited a “Survival Game” location located a couple of hours from Chicago. They both had a great time and came up with a great idea. Their concept was to develop and sell a line of high-quality products that could be used in this game that they enjoyed so much. Over the next 24 years, the two entrepreneurs introduced such brands as R.P., Pure Energy, Piranha and Evil and they grew their idea into PMI, which is now one of the best known and most respected suppliers in the world of paintball.

‘While Freeman and Perlmutter were traveling the country to compete in various paintball tournaments and growing the game from their Chicago headquarters, an 18-year-old from a small town in South Jersey played his first game of paintball and was immediately hooked. Over the next few years, Gino Postorivo set up a sales counter in the back of his father’s restaurant. Through brands including 32 Degrees, Diablo, Halo and Empire, he grew this business into what is now known as NPS, also among the best known and most respected suppliers in the world’s most exciting extreme sport.

‘The combined company expects to continue to maintain a world-class paintball manufacturing facility in Tampa as well as to enhance its North American distribution network to reach over 90 percent of the North American population via next day ground service. The company expects to continue to operate a division in the U.K., servicing the growing international market.

‘Overseeing the combination of business operations is Chief Executive Officer, Ray Dombrowski, currently a managing director at management firm Alvarez & Marsal, LLC, along with Chief Financial Officer, Scott Thompson, also of Alvarez & Marsal. The senior executive team reporting to Mr. Dombrowski will be Gino Postorivo, founder of NPS, who will be the President of the new company; Dave Freeman, a co-founder of PMI, who will be Chief Integration Officer; and George Eurick, Chief Operating Officer of PMI, who will be the Chief Operating Officer….

‘Brent Leffel, a Managing Director at Angelo Gordon commented, “We believe that paintball is a dynamic, $1 billion segment of the extreme sports industry, which is poised for growth after undergoing a period of rationalization and structural change. NPS and PMI have pioneered the industry with strong brands and a diverse product portfolio. On a combined basis, the company will be the largest in the industry and the only player offering a full complement of products….’

#

‘NEW YORK – September 19, 2005 – Crunch Fitness ("Crunch"), one of the premier health club chains in the U.S. and a leading brand in the fitness industry, is being acquired by Marc Tascher, a leading entrepreneur and club industry veteran, in partnership with the private equity group of Angelo, Gordon & Co. ("Angelo Gordon"), an alternative asset investment management firm with approximately $9 billion in capital under management….

‘Mr. Tascher has over 30 years of experience in the health club industry, having co-founded and then served as Chairman and Chief Executive Officer of Town Sports International, Inc. ("TSI"), the parent company of New York Sports Clubs. During his tenure at TSI, the company grew rapidly to become the largest and most profitable regional chain in the Northeast. Mr. Tascher is currently the Chairman and Chief Executive Officer of Sports & Fitness Ventures, LLC ("SFV"), which owns and operates eight health clubs in the New York City and Washington, D.C. markets. Post-closing, Mr. Tascher will serve as the Chairman and Chief Executive Officer of the combined company, to be called Crunch Fitness….

‘Mr. Tascher is partnering on this transaction with the private equity group of Angelo Gordon. Angelo Gordon was founded in 1988 and currently has over 50 investment professionals managing approximately $9 billion in capital across multiple investment strategies. The private equity group currently manages over $500 million in existing and committed capital.

‘"In our view, the health club industry is an attractive sector for investment given its strong growth characteristics and positive demographics," said Brent Leffel, a Director in the private equity group of Angelo Gordon. "We believe Crunch is uniquely positioned for growth in its core urban markets as well as in new markets given its tremendous brand name recognition and loyal membership base."

‘"We are very excited about working with the Crunch team in partnership with Marc Tascher, who is a seasoned executive with a proven track record of successfully building and operating health club businesses," said David Roberts, a Managing Director of Angelo Gordon and head of the firm's private equity group. "We believe the combination of our significant capital base and Marc's demonstrated vision and leadership will allow us to realize the significant potential of Crunch."

‘Sagent Advisors Inc. initiated the partnership between Angelo Gordon and Marc Tascher on this transaction and acted as the exclusive financial advisor to Angelo Gordon.’

#

Now conspiracy theorists are quick to recognize the same players, whether corporate or individual, in the fitness and paintball deals; in brief:

Angelo, Gordon & Company: founded in 1988, this equity firm has at least $10 billion under management. The firm’s investment activities encompass distressed debt and leveraged loans, real estate, private equity and special situations, and a number of credit oriented hedge fund strategies. It is a vulture investment firm inasmuch as it often seeks to purchase financially distressed businesses at significantly reduced values compared to non-distressed businesses, then quickly pump up their value and dump them for a high return.

Brent Leffel: Leffel is a Managing Director of Angelo Gordon, Private Equity and Situations Group. He joined Angelo Gordon in 2005. He led Angelo Gordon's January 2006 acquisition of Crunch Fitness from Bally's Total Fitness and the April 2006 acquisition of Kings Supermarkets from Marks & Spencer PLC. Prior to joining Angelo Gordon, he was a Vice President of Bear Stearns Merchant Banking, the private equity affiliate of Bear Stearns. Previously, he was an Associate of Quad-C Management, a Virginia based private equity partnership, and was a Financial Analyst and Associate in the Financial Sponsor and Leveraged Finance groups of NationsBanc Montgomery Securities (now Banc of America Securities). While attending business school, he worked as a Senior Associate of The Carlyle Group, where he worked with the Special Situations team. He holds an MBA from the Wharton School of the University of Pennsylvania and a BS in Finance from Ithaca College.

Sagent Advisors: Sagent Advisors is an independent, privately-owned investment bank that provides financial advisory and capital raising solutions to clients in connection with mergers, acquisitions, structuring, and other strategic financial transactions. It advertises that it has completed over 100 transactions for its clients with an aggregate value of $50 billion.

Alvarez & Marsal: this is one of the leading independent global professional services firms specializing in performance improvement, turnaround management and business advisory services…. “Whether serving in interim management or advisory roles, the firm draws on a deep operational heritage and hands-on approach to deliver comprehensive services across the investment lifecycle including due diligence/acquisition support, performance improvement and business advisory services, portfolio management, turnaround management and exit support, among others.” The company is an expert at inserting its consultants into companies during crises, as they did in the case of Crunch Fitness, where they draw many millions of dollars in compensation. For example, we see from an April 22, 2010, Quarterly Compensation Report filed with the bankruptcy court in the case of Chemtura Corporation, that Alvarez & Marsal Managing Director Ray Dombrowski, a lawyer who specializes in assisting corporations in developing and implementing financial turnaround strategies, drew compensation of $450,000 in one quarter; together with other Alvarez & Marsal employees, the draw was $1,461, 930. To better understand what is going on here, we quote this note from Chemtura’s Form 10-Q filed with the SEC:

“On April 29, 2009, Raymond E. Dombrowski, Jr. was appointed Chief Restructuring Officer. In connection with this appointment, the Company (CHEMTURA) entered into an agreement with Alvarez & Marsal North America, LLC (“A&M”) to compensate A&M for Mr. Dombrowski’s services as Chief Restructuring Officer on a monthly basis at a rate of $150 thousand per month and incentive compensation in the amount of $3 million payable upon the earlier of (a) the consummation of a Chapter 11 plan of reorganization or (b) the sale, transfer, or other disposition of all or a substantial portion of the assets or equity of the Company. Mr. Dombrowski is independently compensated pursuant to arrangements with A&M, a financial advisory and consulting firm specializing in corporate restructuring. Mr. Dombrowski will not receive any compensation directly from the Company and will not participate in any of the Company’s employee benefit plans. The Chapter 11 cases were filed to gain liquidity for continuing operations while the Debtors restructure their balance sheets to allow the Company to continue as a viable going concern. While the Company believes it will be able to achieve these objectives through the Chapter 11 reorganization process, there can be no certainty that it will be successful in doing so.’

Dechert, LLP: this prestigious New York law firm has done considerable business with Angelo, Gordon & Company. The esteemed Dechert lawyer Charles I. Weissman represented the buyers in the purchase of the Bally and Tascher clubs. When the Crunch venture failed, Dechert applied to the court to represent AGT Crunch Acquisition in the bankruptcy, and Weissman represented the buyers of the bankrupted Crunch. Dechert reveals that its history is “long and impressive.” That history began in 1875, one of its founding partners even served a President James Garfield’s attorney general, and another founding partner wrote a book entitled Principles of Equity. Today Dechert is a leading international law firm with 21 offices in the United States, Europe and Asia. Needless to say, its lawyers are internationally acclaimed, some of its lawyers have become judges, and the firm represents headline-making players on the global economic scene. Its most important core values are client service, honesty and integrity, and becoming a stronger firm.

#

It is a wondrous that some or all of the above have not been sued by the Crunch investors and creditors who got crunched, including the hapless Tascher, whose sudden transition from Golden Squash Man to Outcast Pariah at Crunch Fitness we have discussed elsewhere. But the so-called Paintball Guy did sue them; witness the case of Eugene Postorivo v. AG Paintball Holdings, Inc. (C.A. No. 2991 – VCP) in Delaware’s Court of Chancery.

Eugenio Postorivo, head of National Paintball Supply, inc., during 17 years devoted to the industry, popularized the paintball sport. He was known as “the Paintball Guy,” the creator of Empire, a marquis brand, and the Diablo and PT Paintball brands among others. His “one-stop shopping” paintball sport supply distribution company generated $110 million revenue and had an estimated 25% of the paintball market.

Postorivo was indeed the most respected and trusted businessman in the industry, and enjoyed the most loyal employees and customers a business could desire. But there was a market downturn, and a continuing problem with a supplier from which there had been a significant litigation recovery. Postorivo proceeded to pitch the increased value of his assets if merged with those of his competitor Pursuit Marketing, Inc. to equity investors.

Defendants Brent Leffel and Raymond E. Dombrowski, styled the Director Defendants in the suit brought against them and others, persuaded Postorivo to do a deal in which KEE Action Inc., set up for the purpose, would acquire the assets of National Paintball Supply and Pursuit Marketing. Leffel, a director of Angelo, Gordon & Company, the turnaround equity firm backing the deal, had been inserted as chairman and director of the acquisition company, KEE Action Inc. Dombrowski, a trained lawyer and director of Alvarez and Marsal, the management firm consulting on the deal, was inserted as managing director of KEE Action Inc. We note in passing that, in the AGT Crunch bankruptcy case, the law firm Dechert LLC revealed that it had represented Angelo Gordon in KEE Action corporate matters.

Postorivo was promised that he would run the new company as its president, having an employment agreement for five years with a salary of $400,000 along with up to 125% bonuses on that amount annually, and the agreement provided him with 10% of the common stock and $5 million in junior preferred shares. The new company would assume no more than $19 million of the debt of National Paintball Supply and Postorivo, a debt which was then simply refinanced. No sooner than Postorivo had been seduced into the deal and been made President and CEO, he was abandoned, i.e. frozen out of the KEE. Dombrowski, acting as and then appointed CEO, shoved Postorivo aside, stripping him of authority in front of employees, carrying on crucial business without him, insulating him from operation and marketing processes, and refusing to provide him with information. Again, it was alleged that, from the first day after the deal, Leffel and Dombrowski had engaged in a "systematic pattern of conduct intended to freeze Postorivo completely out of the management and operations of KEE Action, Inc.... and "completely sterilized Postorivo of all his powers."

Worst of all: “Defendants took from Postorivo perhaps his most important contribution to the business: they made him invisible. Postorivo went from being ‘the Paintball Guy,’ the face of the company he built, to being locked away in an office without any public persona.”

And then the defendants “deflated the value of the business in order to manufacture an indemnification claim against Postorivo.” For instance, the defendants abandoned certain brands and aggressively wrote down the inventory to liquidation fire-sale prices. Dombrowski allegedly had some of the inventory dumped at less than far market value in order to satisfy certain benchmarks under his own compensation agreement. The defendants, particularly Dombrowski, who supervised the due diligence had themselves conducted due diligence prior to the merger, but now they had changed their mind. Not only did they want Postorivo’s stock in the company, thus converting his property to their own uses, they were using the indemnification clause of the agreement in an effort to squeeze money out of him. Postorivo naturally countersued. A settlement was had in 2008, the terms of which are undisclosed. Discussions of that settlement appearing on paintball industry sites have apparently been deleted, no doubt because the persons involved want to move forward.

In a related claim, over rights to litigation proceeds in a case pursued by Postorivo before the KEE deal was made, where an arbitration award of $9.6 million had been obtained, it was asserted that the defendants, who had a right to purchase the settlement, were trying to independently negotiate a settlement for themselves; in that matter, the court held that the defendants’ attorneys had violated the rules of professional conduct by raiding his attorney’s files for privileged information

Conspiracy theorists are quick to recognize the standard ploy and we could provide many more examples of its employment hidden behind innocuous business news reports.[i] The victims are not so quick. But that does not mean they are slow-witted. As every confidence man and woman knows, intelligent people, if they have not yet been badly burned, are easily duped by attractive illusions.

-To Be Continued-

[i] For example, “Jim Strupp and John Mazzuto bought the G. Heileman Brewery for $10.5 million and reopened it as the City Brewing Co. – it original name when founded by Gottlieb Heileman and John Gund in 1858 – but they ran into financial trouble, stopped production and laid off workers. Last fall, a group of local investors purchased City Brewing and have been ramping up production.”

Crunch Fitness and The Golden Squash

2011-06-14T08:28:00.000-07:00

SERIES: THE CRUNCH FITNESS FIASCO

CRUNCH FITNESS AND THE GOLDEN SQUASH
Who is to blame for The Crunch Fiasco?

By David Arthur Walters
The Miami Mirror
June 14, 2011

MIAMI BEACH – “The Crunch brand is amazing and it’s been mismanaged in the past five years,” proclaimed Mark Mastrov, the Bill Gates of the fitness industry, in his press release after he had snatched Crunch Fitness out of bankruptcy as preplanned. “Ultimately the proof is how you operate. We can go in there and do a turnaround. It will definitely be challenging.”

Marc Tascher had spearheaded the previous effort to turn Crunch around and had chipped several of his own successful clubs into the deal to purchase Crunch from Bally Fitness, but he was brushed aside by his equity firm partner, Angelo, Gordon & Company, after a brief four months as figurehead of the ill-fated firm, AGT Crunch Acquisition LLC. Angelo Gordon had gone out of its way to praise him, instilling confidence in investors, then turned around and squashed the legendary squash man, leading us to suspect that he had been duped – we shall elaborate our conspiracy theory, ‘From Bats to Vultures,’ elsewhere.

Tascher had enjoyed a remarkable reputation within the industry before he had the bright idea of taking over the Crunch brand, and his experience had been somewhat parallel to Mastrov’s: “Young man, get into the right place at the right time, pour your heart into it and stay put until getting out is good.” Angelo Gordon had seemingly loved the fitness industry sage at first sight when Sagent Advisors brought him over with the Crunch proposition, yet he would be treated like a pariah in no time.

What happened? Was Tascher to blame for much of the mismanagement referred to by Mastrov? We do not think so; we believe the failure to turn around crunch should be placed on Angelo, Gordon & Company, the $10 billion turnaround firm that cast Tascher out, only to become Mastrov’s bedfellow in Crunch and other ventures, such as amazing Madonna’s promising Hard Candy Fitness club chain. Leveraged buyout firms are notorious for saddling their targets with debt while calling themselves “equity” funds. We believe the vulture equity fund overleveraged the new venture in an attempt to suck exorbitant interest from the firm’s electronic funds transfers flowing from the membership accounts. We do not see the interest rate on the debt disclosed in the bankruptcy documents, nor do we see the high interest rate as a cause of the fiasco, but we notice with some interest the disclosed 18% compounded quarterly on the senior preferred stock.

The relatively steady cash flow of fitness chains along with demographics favorable to the fitness business rendered them appetizing targets to a few hungry funds a decade ago, but thus far the demographics and other positive factors have not panned out as expected, as is evident in the relatively high interest rate on the borrowings used to purchase fitness company stock. That is not to say that the fitness industry had not grown remarkably; from 2000 to 2009, according to the International Health, Racquet and Sports Club Association, its revenues grew at a compound rate of 5.9%; the number of fitness clubs grew in that period by a compound rate of 6.4%, while the number memberships grew by only 3.7%. But the health industry, as we know all too well, had gotten way out of hand, in large part due to demand fueled by insurance coverage and tax deductibility, which is not provided for fitness clubs to any great extent.

Doctors may prescribe rehabilitation services, and some insurance companies now include fitness club membership in their plans. So-called silver fitness memberships for aging boomers are provided by Medicare Advantage providers, who have recently started to base their coverage on actual attendance by the insured at gym. Tellingly, one of the first things that Crunch Fitness did was terminate its acceptance of profitable silver fitness memberships at a former Tascher-managed club that AGT Crunch Acquisition had branded a Crunch, discriminating against people on the basis of their age in favor of its preferred 18-40 target group. Michael Ross, president and owner of Gem Star Fitness Center in Manhattan, now known as the West End Sports Club, said he did not know that the insurance program, which had been yielding the club $6,000 net profit per month, had been cancelled until he overheard members complaining about it in the locker room some time after Crunch signs had been slapped up on the gym. This event allegedly occurred in December 2006, several months after Tascher had been shoved aside by his partner Angelo Gordon. Gem Star’s lawsuit and another former Tascher-managed club’s suit against Crunch et al alleging racketeering will be discussed elsewhere.

Fitness and health are naturally related if fitness means being fit to live a long life free of disease, yet one can be fit for many things that are not that healthy, say, fit to play professional football and suffer from brain damage. Absent an incentive or mandate to join a gym, people may exercise on their own, or sit at desks and couches for many hours a day thus multiplying their risk of premature death by several times – a recent study indicates that exercise does not cancel the risk accrued by sitting down for long periods, so we suggest standing up at work by means of elevated desks, hopefully to be designed and marketed by Elizabeth Calomiris. Fitness club memberships can be a hard sell when based on the health argument: People tend not to participate in improving their health because they do not believe they will get sick; they do not appreciate the seriousness of symptoms of bad health they experience; they do not believe the programs offered will be of much help to them; and nothing happens that would cause them to change their behavior until it is too late. To paraphrase Malcolm Gladwell’s Tipping Point, something has to be thrown at them that will stick and get them to stop by the health club; sophisticated advertising campaigns wrought to frighten or amuse people will not do the trick.

Psychological resistance along with high rents and interest rates do not bode well for the accelerated growth of the fitness industry overall in this country even though the market is far from saturated. It is with that and more in mind that Angelo Gordon should have put up more equity for the Crunch venture, and should have been patient enough to ride out the storm, giving their experienced club manager and his people ample time to build up a loyal membership with service, as Howard Schultz did with Starbucks, instead of panicking and changing horses; or the transaction-oriented money managers should not have done the deal in the first place.

We blame Angelo Gordon even though investors naturally prefer to blame the entrepreneur instead of the investment bank, and write the loss off to mismanagement; after all, how could highly esteemed and educated persons responsible for $10 billion of assets be incompetent not to say crooked? No, blame the entrepreneur. For example, make Donald Trump take the blame for the Trump Shuttle, which he viewed as a luxurious advertising vehicle for his brand – an enterprise that would have done well enough if he had had time to learn some modesty and turn it into a work horse – and not the banks led by Citigroup that loaned him 19 times his equity, debt amounting to 95% of the assets. (The author may approach The Donald with his Trump Blimp concept after concluding this series).

Yes, it was Tascher’s idea to obtain funds to buy the Crunch clubs from Bally in the first place, but it was also his idea to rebuild its membership over the next five to seven years, not to pump and dump it. He observed that Crunch was a widely recognized, popular brand with considerable internal value despite Bally’s neglect; marketing staff and personal trainers were in place, and, most importantly, he believed its members loved the brand hence were loyal. He said the brand was outstanding, that the public perceived it as cool and edgy, an image the population wants to identify with; the brand had taken on a life of its own, standing apart from its early adopters. There was plenty of opportunity for people to climb aboard its bandwagon inasmuch as being cool and edgy and counter-cultural has become traditional.

Tascher certainly was the right man for the job. Indeed, Angelo Gordon could not have secured the investors without him. But it did not take the vulture investment firm long to marginalize him, and then pick his bones clean along with other investors and creditors. He must have known a vulture when he saw one, but money does not grow on trees. What we want to see influences what we do see in all our fallibility. Vultures are ugly on the ground but quite beautiful when soaring aloft. Despite the sight and smell of carrion (American vultures such as the turkey vulture have a sense of smell), few vulture equity venues will get involved with troubled fitness chains given the experience with them over the past decade. Still Angelo Gordon had advertised itself as an “agnostic” investor in troubled companies, meaning that it was willing to feed on anybody. That was Mastrov’s cue after he had fallen out with his own private equity partner in his former business, 24 Hour Fitness. He was circling on high when he got wind of the Crunch financing by Angelo Gordon, and, when Crunch, drained of its blood by a brood of consultants, staggered and fell flat, he winged in to secure his position at the gruesome feast – he may profit mightily by franchising the brand into a McCrunch operation.

In any event, we should know something about the key man in the deal with Bally Fitness if we want to understand the Crunch fiasco. In comparison to Mastrov, the darling of the fitness industry, he has not gotten the press he deserves. We hear that Tascher is known in the industry as a win-win guy sincerely interested in striking an equitable balance between the interests of all stakeholders – customers, employees, community, shareholders. He was an SDS leader in his college days – he is not known as a pump and dumper or the sort of fellow who would “cop out to the Man” and sell his soul to “maximize shareholder value.” He was a health club man from the get go. He co-founded of Town Sports International, a company that began in 1973 with a commercial squash club company owned by Harry (H.F.) Saint. Saint hired Tascher fresh out of college, his first employee in New York, because Tascher had no experience and therefore no preconceptions about the industry.

Town Squash Inc. would eventually become Town Sports International. Tascher would eventually replace Saint, and eventually, in 1996, sell out and start his own clubs. Today TSI is a public company, having gone public in 2006 to partly relieve it from a debt burden that had grown from 1.15x total capital (indebtedness capital less deficit equity) in 2003, to 3.56x total capital in 2005. By the end of 2010, according to its annual report, it operated 160 clubs with approximately 493,000 members – we have reason to believe the membership numbers provided in its annual reports are unreliable. The company was hit hard by the Great Recession: gross revenue dropped from $507 million in 2008 to $462 million in 2010. Unlike the Crunch brand that Tascher would eventually fall in love with, Town Sports International employs localized brand names for its clubs (New York Sports Clubs, Boston Sports Clubs, Washington Sports Clubs, and Philadelphia Sports Clubs) “to create an image and atmosphere consistent with the local community and to foster recognition as a local network of quality fitness clubs rather than a national chain.”

Saint and Tascher’s innovative promotions fostered the squash boom; when that played out, they turned to health clubs. Tascher had an electronic funds transfer system installed, which would soon generate 90 percent of the enterprise’s revenues. EFT became the industry’s financial backbone, enabling clubs to sell annual memberships, and then automatically charge members’ accounts a flat amount each month instead of collecting an initiation fee and a fee for each use of the facilities. That way, space-time could be leveraged by a certain multiple of maximum peak-hour capacity in order to yield optimum revenue.

But that is not to say that Tascher turned to the churn-and-burn or seduce-and-abandon methodology made infamous by Mastrov’s 24 Hour Fitness and its ilk; at least he emphasized service over sales as a matter of habit ingrained by early experience; the squash business made money whenever people played squash; i.e., you wanted people to actually play squash so you could get court fees.

TSI was Saint’s day job; he was a writer at heart. He no doubt had considerable influence on Tascher. Quaker principles were instilled in Saint at Haverford College; he studied philosophy in Germany, and inherited a real estate business before he went into the squash business. He had in fact sold a short story for $600 while in college, but figured writing was a rather poor way to make a living. However that might be, he cashed out of TSI in 1981 and wrote a popular novel, Memoirs of an Invisible Man, which was made into a movie. The book and rights yielded him $3 million or more. Saint himself is rumored to have gone off to Europe to enjoy the spoils, where he mysteriously disappeared, only to surface from time to time here and there. Attempts are reportedly being made currently by the CIA to locate him with an experimental quantum device invented by a Bulgarian scientist during the Cold War.

Tascher, replacing Saint, became CEO. The current (2011) president of Town Sports International, Robert Giardina, was hired in 1981 to manage one of the Town Squash clubs. He had previously worked for the nation’s largest health chain, European Health Spa, and had been disillusioned by its focus on sales over service.

According to TSI copywriting, the most important key to TSI’s success was in retaining members by getting results: members were satisfied when their fitness programs made them fit. TSI then counted on people to work out efficiently and effectively to maintain its reputation, unlike companies that cater to the crowd that does not show up very often yet continues to pay dues. Incidentally, now a customer can pay $10 a month for membership at Planet Fitness, paying much less for something they never use; the new Crunch Fitness franchises are charging $9.95.

Giardina eventually became Tascher’s partner, prompting Tascher to focus on the health club or general fitness side of the business instead of squash only. The “racket and fitness” clubs sported individual names instead of one brand name. Tascher wanted to create a major brand to consolidate marketing and to expand. He presented a plan to do just that in 1995, but his plan was ultimately greeted with disapproval by the majority shareholder. He resigned as CEO in 1996 and worked behind the scenes to find investors for a leveraged buyout of the company. He managed to obtain two offers to pry his stake loose, but the offer that would finally be accepted was the one obtained by the management team.

Until Tascher’s memoirs are published, we can only speculate on what went on at the time, and whether or not he made the right judgment call. We imagine that his departure was not very friendly. He was the second largest shareholder when the leveraged buyout cashed him out. Obviously, he believed that getting out of TSI was the right thing to do, that the future of the company was no longer as bright as he wanted it to be, at least not something he wanted to gamble his years of work on.

For one thing, he was probably weary of agonizing over the mounting debt, which persisted or was made worse after the buyout. Bruckmann, Rosser, Sherrill & Co., the private equity firm effecting the 1996 buyout, had wanted to sell the company for $600 million in 2002 but could not find a buyer, so it refinanced the company, taking no cash out. Although the company had been left with a large negative number in its paid-in capital account that persisted for years after the 1996 leveraged buyout, and although the buyout had left the firm with an 11% interest rate on its indebtedness, Tascher may have had some regrets over not having kept a stake in the firm after the subsequent IPO in 2006, offering 8,950,000 shares at a maximum of $14 per share.

More recently, TSI investors tripled their money in anticipation of far more favorable financing; TSI announced on May 11, 2011, that it had entered into a new credit facility for $350 million at LIBOR plus 5.50%, which allowed it to fully redeem the 11% notes, thus cutting its interest almost in half. If the savings were applied retroactively, to 2010, that would have left it with a profit of around .40 per share instead of a penny loss per share. It could be headed to a profit of .60 to .70 per share in 2011. The deficit equity persists due to a residual negative balance in its capital-paid-in account.

Wherever good lives evil also resides, and in what ratio we cannot say –some analysts, having gone beyond good and evil, are indifferent to debt/equity – it’s all capital to them. The virtues and vices of leverage had to have become obvious to Tascher long before he wedged his own clubs into Crunch for a 20% stake in the $45 million deal with Bally Fitness. Long gone was the dream of fitness industry entrepreneurs that cash flow off electronic fund transfers would suffice to grow their fitness outfits when commercial banks were not lending to such risky businesses; they turned to investment banks and were saddled with debt to finance growth.

The debt eventually taken on by the Crunch partnership must have troubled Tascher, but money whatever its source still has its attractions, as gamblers who turn to loan sharks know all too well. His Town Squash Inc. had taken on debt during its expansion but managed to outrun its debt service with increased revenues by getting into general fitness. And then his Town Sports International Inc, having taken that name in 1993, took on enormous debt to finance its sports and health club growth; its “cash flow before debt service,” was allegedly, according to a frequently repeated press report, 30% back in the good old days, i.e. when the industry was booming as baby boomers turned to exercise while insurers and employers collaborated to reduce health care costs. Since the leveraged buyout, cash provided by operations before financing and investment activities was 17.4% or revenue in 1997, 10.3% in 1998, 18.6% in 1999, 18.1% in 2000, 15.3% in 2001, 15.9% in 2002, 17.0% in 2003,16.3% in 2004, 13.2% in 2005, 17.3% in 2006, 17.5% in 2007, 18.9% in 2008, 15.7% in 2009, and 11.1% in 2010 (we apologize to readers for our numerical litany and references to confounding margins and ratios herein in hopes they might be meaningful to someone). We cannot say at this time whether the golden age of 30% ever existed at all or if it did for how long. For all we know, the financial Utopia might have been a Dystopia – the members felt pretty good working out in the gyms, but the indebtedness stress put on executives may have been traumatic.

Earnings before interest, depreciation, taxes and amortization (EBIDTA) is another commonly used margin referred to by financial analysts – since depreciation and amortization are not current cash expenses, but represent the spreading out over the years of up-front capital expenditures, and happen to be of considerable magnitude in capital intensive industries, adding those annual charges back to operating income before interest and taxes can give a better but still inadequate picture of how much cash is generated to pay interest and taxes. Analysts have noted that TSI is in the habit of providing a peculiar definition of EBIDTA, which obviously differs from the EBIDTA margin they would normally calculate from the numbers on its statements. TSI stated its own version of “EBIDTA margin” as averaging 21% from 2001 to 29.4% in 2007, and then it fell from there to 22.2% in 2010.

Tascher’s own collection of clubs, doing business under the mantle of Sports Fitness Ventures, were said to be faring better even without the peculiar adjustments used by TSI, with an average EBITDA margin of 31%

Interestingly, as revealed by the registration for a $85 million note offering for the 12-month period ending way back in August 31, 1997, shortly after the leveraged buyout, indebtedness was 6.22 times EBITDA, and the company warned that its ratio of indebtedness to “total capital” as formally calculated by its accountants was at 130%, meaning that a substantial portion of its cash flow would be dedicated to debt service, that it might have difficulty getting additional financing, and that any downturn could be ruinous. But the firm went on growing with the help of its lenders.

We believe Tascher must have been relieved to get out when he did, by way of the leveraged buyout, and not have to walk the deeply indebted high wire any more, although the LBO must have made the indebtedness worse. Surely, we surmise, he must have been troubled by the indebted structure of Crunch Fitness when he got into that deal a decade later; it would have taken a great deal of smooth talk to get him into it. Indeed, something is wrong with the picture presented by the public record; it looks like Tascher was duped, like the cat who drags in a mouse just to have it snatched from his jaws by a bigger cat.

In July 9, 2001, Wall Street Transcript CEO Interview Richard Pyle, the executive who was identified as “chiefly responsible for finances” at Town Sports International since 1987, we discover that he liked another rule-of-thumb to see how the firm was doing, called EBITDAR: rent is added back onto the margin, to get earnings before interest, taxes, depreciation, amortization, and rent. “We look at that as a reflection of profitability or cash flow, shall we say, before rent,” he said, “and that's the only way to compare all of the health club businesses on one piece of paper. Since many club operators own their real estate, this is the one metric where everyone is on a level playing field.” That does make sense for sake of comparison. But we note well that we have all sorts of margins to choose from; just take your pick, and your loss might look pretty good after all. Town Sports International accountants are masters of adding things back that are not entirely visible on its financials.

We regret that Tascher is not talking. We would like to know if he crossed swords with Pyle, who probably answered to the majority owners rather than to Tascher when it came to financing. Being CEO does not come with the power of ownership; although Tascher was the second largest shareholder at TSI; he did not have the ultimate control. He left the company on solid ground in terms of membership service, and it managed to muddle ahead financially as it rode the growth wave of the industry.

He went on to own and/or manage the Sports Fitness Venture clubs, some of which were valuable enough to gain him his equity in the Crunch deal. Yet he only had 20% of AGT Crunch Acquisition; he did not have control; he was marginalized after a mere four months at the helm; he was not given the chance to hire his own key people and build a loyal membership with good service. What a shame that is, as we can see by the results leading up to bankruptcy. No matter what we add back to Crunch’s dismal August 2009 financial statement to come up with our list of capital letters, we cannot drag Crunch into the black.

There are margins, and then there are margins. Your margin is the one you can eat. If you are a small equity investor, then the bottom line, your earnings per share after everything is said and done, is your margin after Uncle Sam takes his bite. Please watch out for USURY and FRAUD lest your margin at the table amounts to nothing.

In a January 1, 1994 article penned by Jill Andresky Fraser for an Inc magazine issue featuring six ways entrepreneurs can save the world, Tascher was quoted as saying that a successful club should bring in a 40% “pretax margin.” Now there is an admirable ideal. A pretax margin is net income before taxes; 40% would be wildly successful for a large fitness chain – just try to find that net before taxes alone somewhere. We note that income before taxes of the highly successful public company Life Time Fitness recently averaged around 17% of revenue.

For the sake of fitness club entrepreneurs who are patiently looking for a perfectly reliable rule, searching for the Snark instead of waiting for Godot, we believe he was misunderstood by the journalist: he was probably not referring to a 40% pretax margin. He revealed his “secret” calculation method to the Inc. journalist: ‘Every month, Tascher monitors the performance of each club (and of the corporation) according to that ratio, so that as clubs mature and membership growth slows, Town Sports' cost-to-revenue ratio remains constant. The ratio is also used to make sure that expansion projects make financial sense. "I've got three main costs – marketing, space, and payroll – and I won't consider expanding into a new club unless its projected cost ratio works," quoth Tascher. He is speaking of what is may be called “club expenses”; no mention is made of general and administrative expenses or overhead, which every company also has to pay.

Tascher said he used his rule-of-thumb ratio, based on the three cost factors, to help gauge how much cash to keep on hand as soon as building new clubs entered a risky phase. “At a time similar to this, when we have got four clubs under construction, our cash reserves are superior for the reason that I know there are uncertainties about how much cash we’ll need along with how long it will take for those clubs to get going. However as soon as those uncertainties are reduced, it will be better to spend down reserves if we need cash, rather than rely on our credit lines.”

In other words, Tascher’s rule is that he desired to control costs so that he would have 40% of his revenue left over after paying out cash for labor, marketing, and rent, and then the cash revenue actually collected would be sufficient to build reserves and use them for growing the business. Cash flow analyses might serve him better, but at least he could keep the major direct cost factors under his thumb. Of course one has to pay administrative expenses, which may be one reason he was antipathetic to paying high fees to outside consultants; and then there is the debt service, which would usually be the interest if debt is continually rolled over. From the little information we have been able to glean about his subsequent companies under Sports Fitness Ventures, we see he was a little shy of the 40%, with a margin of 37% EBITDA and before overhead.

Well, our golden squash player may be a frustrated financial genius for all we know in our ignorance and impoverishment. One thing we are sure of; he knows how to build up clubs with loyal memberships. If we are to fault him a Crunch, it is in going for the Angelo Gordon deal.

Tascher was out of the TSI picture and was set for life due to the leveraged buyout. He could have gone on to write a novel himself – like Saint, he too aspired to be a writer. But he kept active in the industry with the eight health clubs he either owned or managed via Sports and Fitness Ventures LLC, six of which he contributed to the deal to buy Crunch from Bally Total Fitness – of the six, one was managed and it would be dropped by Crunch, so the SFV contribution was described in bankruptcy documents as “five additional clubs from entities unrelated to [the twenty five] Bally clubs.” Tascher obviously had not given up his branding notion and his ambition to build another health club empire.

Given his past string of successes, we cannot blame Tascher, soon to become CEO of the new Crunch holding company, AGT Crunch Acquisition LLC, for his enthusiasm when the deal was announced.

"We are excited about working with the strong Crunch team of dedicated employees to take the brand to the next level,” he said. “We intend to build upon the strong foundation that is already in place, including improved operational infrastructure, great people, dynamic programming, superior locations and a loyal membership base."

The timing and the financial structuring was bad, but that being said, we must not think that the eventual failure of the Crunch takeover from Bally was entirely due to financial foolishness associated with the macroeconomic circumstances of boom and bust. After all, TSI had turned its meager $2.3 million profit in 2008 after write-offs, and Life Time Fitness Inc., with roughly 600,000 members in 83, 24-hour centers emphasizing family recreation, posted a profit of $71.8 million for 2008 (its EBDITA was a whopping $221.5 million, or 28.8% of revenue, and its debt was only 52% of total capital). In any event, someone must be blamed when things go south, whether on the micro or macro level, and it is more convenient to blame the CEOs than the investors from whom entrepreneurs need a virtually inexhaustible supply of funds for their ventures. When business is not going well, the manager is blamed and fired even when we do not know for sure exactly what he did or did not do that put the enterprise into bad straits. Say good bye to Tascher as CEO of Crunch Fitness.

Since Tascher had 20% equity in the $45 million Crunch deal, we suppose his loss to be at least $9 million. Add to that the loss of his unsecured claim for the balance of his management fee and any paid compensation that might be clawed back, plus attorneys’ fees, incidental costs, and damages and the like. We see that Tascher got one of his clubs back, the Rock Creek Sports Club in Silver Spring, Maryland, but he and his partner Paul London had to pay $705,000 for it. Noting well that Paul London and other members of the distinguished London family were investors in AGT Crunch Acquisition, we conclude that they placed no blame on Tascher for the fiasco. We also note well that Jonathan Roosevelt and other members of the illustrious Roosevelt family were investors in AGT Crunch Acquisition and evidently have no regrets about Tascher’s role in Crunch, for Jonathan Roosevelt is Tascher’s partner in a Healthy Fit, an attractive holistic health club for women located in Mamaroneck, New York.

As of this writing, we find no record that Tascher and others have filed suits in New York County against Angelo Gordon and its advisors and crisis managers, but the Crunch Fiasco certainly smells of bats and vultures, wherefore we recommend that everyone concerned go over the details, especially the general ledgers and contracts, with a fine-toothed comb.

-To Be Continued-

Note: The author, motivated by his love of the Crunch brand, seeks justice for Crunch.