Miami Commission, attorney stifle public comment on noise ordinance

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Several people who live, work and play in Miami were denied their First Amendment rights Thursday when the city attorney arbitrarily decided there was no need to hear almost nine hours of public comments on a measure to tighten noise restrictions on businesses next to homes.

The city effectively silenced any dissent over a piece of political payback legislation aimed at the owners and operators of Ball & Chain Restaurant and Bar, a popular Calle Ocho watering hole targeted by Commissioner Joe Carollo. Sure, the restaurant definitely has some code enforcement issues it’s been diligently addressing, but it is also definitely being targeted and harassed and treated differently than any other business simply because they hosted an event for Alfie Leon, who ran against Carollo in 2017.

That’s how long Carollo has been waging war.

City Attorney “Tricky Vicky” Mendez told commissioners that the comments were all “scripted” and all the same and that she got an opinion from the attorney general’s office that she could send them to the electeds in a zip file and read a summary into the record.

“The substance of the over 360 prerecorded public comment messages is substantially similar,” wrote Assistant City Attorney Barnaby Min in a memo he sent just before 9 a.m.

Read related: Joe Carollo recall and lawsuit chug along, but the damage is done

So someone listened to the nine hours overnight?

And while Ladra has confirmed that there was a script — a really bad one — provided to fans of Ball & Chain and the 125 families who make their livelihoods there, it’s not the first or only time someone has used the strength of numbers and talking points to fight City Hall. They wanted to drum up opposition to the proposed amendment to the noise ordinance that would require any business that shares a property line with homes to stop the music and noise at 8 p.m., rather than 11 p.m., which is what the ordinance states now.

But guess what? They’re entitled to. The First Amendment is not limited to the number of times or the type of words used. Scholars and judges have repeatedly found that a public body violates the right to free speech if it doesn’t allow each person the same opportunity as others to speak. “Repetitive comments” — which show strength of numbers and can differ in tone and delivery — can be controlled by time limitations on speakers, which exist, and similar comments can be cut off by the presiding officer, but only after some have been heard and a pattern has been established.

What “presiding officer” heard the pattern? Was it Min? Was it Mendez? City Clerk Todd Hannon said it wasn’t him. But he couldn’t say who it was. “I do not know,” he told Ladra. “But I would assume it was either the Information Technology Department or Office of Communications.”

Pity the poor lower rung schmuck who drew that straw. Or did anyone?

But it really doesn’t even matter. Tricky Vicky and Mr. Min might be lawyers, but they’re also liars. Because Ladra spoke to three people who said they did not read a script. Three out of four.

“What script? I spoke from my heart,” said Pepe Montes, a musician who performed at the Ball & Chain, the true target of this vindictive action, before the city shut them down. Yeah, okay, he works there. But he also lives and votes in the city.

“It really sucks if they don’t hear the message. I was speaking not just for myself but for other musicians,” Montes said. “The pandemic has affected us really bad. And they want to kick us when we’re down?”

Montes said he told his personal story when he called the public comment line. In Spanish. He has been evicted. His car was repossessed. He, like others, think the city should be making it easier for businesses to do their thing outside during this COVID19 crisis. It’s what the doctors ordered.

“I’m disgusted. I can’t believe they didn’t hear us,” said Suzy Battle, the owner of Azucar Ice Cream on Calle Ocho, right next to Ball & Chain. “Our neighborhood is dying and it’s because they are allowing it to die.”

Battle admitted that opponents of the amendment shared a script. “We wanted to keep the same narrative,” she said. “What’s the point of sitting there forever to speak and then talking about the wrong stuff?”

Read related: Joe Carollo sued for violating free speech of Little Havana businesses

Ninoska Perez-Castellon, a popular Cuban current events radio host, said she didn’t feed any lines to her listeners. “I got a script but I wasn’t going to read it. I just told people to call and gave the number,” she told Ladra.

“Nobody had to prepare me. I spoke the truth,” said Alain Garcia Martinez, who owns GMA Valet Parking and handles incoming customer traffic at three businesses in Little Havana, including Ball & Chain.

“I never mentioned Ball & Chain. I just said I didn’t support the thing they were doing because it’s going to affect our nightlife in the city and on Calle Ocho,” Garcia said.

A restaurant owner in Edgewater told Ladra that he too called because he is concerned about his place, which has live music on the patio. “Yeah, there was a script going around, but I didn’t use it,” he said. “I didn’t have to. I have my own story. It’s outrageous what they’re doing.”

Some of the people who felt their freedom of speech violated contacted attorney David Winker, probably because he is one of the Carollo recall attorneys and has had some successes against the city of Miami.

“City Attorney Victoria Mendez’s actions are part of continuing effort at the City to clamp down on public participation and oversight of city action, but today’s silencing of over 250 residents who submitted public comment is unprecedented,” Winker said. “The City Attorney is shifting blame for this decision to a ‘conversation’ with Attorney General Ashley Moody‘s office, but I find that very doubtful as this is a clear violation of Florida law that guarantees the right of residents to address their elected officials.”

Ladra doesn’t believe Mendez spoke to anyone at AG’s office either and asked for confirmation and/or any opinion issued. “Please be advised the City Attorney’s Office called the AG Office and conveyed the facts of the situation via telephone, the AG Office provided a verbal opinion. Time was of the essence,” answered an assistant city attorney.

And the attorney general’s spokeswoman, Kylie Mason, said she doesn’t know what we’re talking about.

“I have another reporter asking the same thing. I am trying to track down who they talked to in our office,” Mason told Ladra. “Please note though: We have not issued a legal opinion regarding this. However, I will check and see if someone from our office talked generally to city staff.”

Yeah, please do. Ladra would not be surprised if Mendez, senior partner at the Joe Carollo & Associates law firm on the 9th floor of the Riverside Center, made it all up. She is the same officer of the court who conspired with her staff in February and created a “cheat sheet” to slow, stop or challenge the Joe Carollo recall.

Read related: Miami City attorneys conspired, created ‘cheat sheet’ to stop Joe Carollo recall

Jordan Shaw, an attorney for Ball & Chain, also reached out to Moody in a letter sent late Thursday.

“Ms. Mendez’s assertion that the contents of the entire nine hours of  public comments were carefully reviewed and properly summarized within such a limited timeframe is dubious at best and belied by her assertion that the City Commissioners, who are considering the item today, were emailed the nine hour audio file this morning immediately prior to commencement of the meeting, for their review before considering the proposed ordinance,” Shaw wrote. “Even assuming arguendo that they were in fact carefully reviewed and properly summarized (which they clearly were not), there is no doubt that the City could not stop all 300-plus individuals from speaking if they had risked their health to appear publicly at the City Commission meeting. 

“More importantly, Ms. Mendez’s claim in support of denying public comment that ‘all’  of the comments are ‘exactly the same’ read from ‘the same script’ is patently and  demonstrably false,” Shaw added. “While some comments may have been similar, a substantial number  contained particularized grievances, not capable of being quickly summarized as Ms. Mendez  disingenuously asserts.”

He pointed out that later in that very same meeting, the city allowed identical public comments from “the same script” in an unrelated legislative manner. Like Ladra said, they’ve done it before lots of times.

“This is clear  selective enforcement,” Shaw wrote.

Also, the Miami-Dade School Board must have gotten a very different legal opinion for a virtual meeting in September that streamed live for more than 28 hours straight — including 18 hours of public comment voicemails left by almost 800 people.

Nine hours is a cake walk in comparison.

The amendment that eventually passed Thursday without any public comments was a much watered down version (take that, Carollo) with nine amendments. Music is prohibited after 10 p.m., not 8 p.m., and there are areas carved out that can keep rocking til after — in the downtown, Coconut Grove and Wynwood. Some businesses that already have the appropriate city approvals will be grandfathered in. The front of businesses and certain zoning categories are exempted. And so are any businesses on or above a 5th floor, for whatever reason.

Of course, it won’t apply to city events on city property. So there might still be a concert in the park. But business owners have to hush. It’s like they want to turn Calle Ocho into a library.

Shhhhhh!

Just like the city told hundreds of people who wanted to speak Thursday.

Here is the entire letter from Shaw on behalf of Ball & Chain to the state:

  Ball & Chain, Joe Carollo, Victoria Mendez