Pay to play allegations fuel probe of Broward HS cheerleader program; Parents, staff quizzed

By Buddy Nevins, BrowardBulldog.org 

Marjory Stoneman Douglas High School cheerleaders Photo: Jordan Feinberg

Disputes over pay to play, bullying, fraud and safety have erupted around the Marjory Stoneman Douglas High School cheerleading program and have led to an investigation by Broward County Schools.

In the past few weeks, Special Investigative Unit agents have interviewed parents and Stoneman Douglas staff regarding the program and booster club, including a complaint the club has broken county rules by collecting tens of thousands of dollars from parents as a requirement to be a cheerleader at the Parkland high school.

The investigation came after complaints that Principal Washington Collado repeatedly ignored problems in the program, parents say.  At Stoneman Douglas, Collado gave the parent-run booster club much of the responsibility of outfitting the team and arranging travel to tournaments apparently in violation of school system

When one parent complained twice, Collado told her she was “disruptive” and banned her indefinitely from the campus.

“We found there is no point talking to that principal. He will do nothing,” said Tammy Tornari, a Parkland mother who was the first parent to complain about the Eagles Cheerleading Booster Club.

She questioned a demand by the club for more than $2,000 in order for her two children to participate in cheerleading. The school has about 30 cheerleaders.

Collado declined comment on the investigation and referred all questions to Tracy Clark, the school system’s chief information officer.

“We are aware of the allegations at Marjory Stoneman Douglas High School in Parkland,” Clark said in an e-mail to Broward Bulldog. “We are currently investigating the allegations. As such, we cannot comment on investigations that are in progress. Pending the completion of the investigation, the District will take appropriate action. We take all allegations of bullying, fraud and mishandling of funds seriously.”

State-certified law enforcement officers run the Special Investigative Unit.

Eagles Cheerleading Booster Club President Joy Kelley said that in response to the complaints and investigation, the organization has been disbanded, with the financial records and left over money turned over to the school.

“Everything was done properly and for the girls,” Kelly said. “They will see that every dime is account for. Everybody was working for the girls except for a few women. “

When asked about the specific allegations involving the cheerleading program, Kelly said, “The truth will come out when the investigation is completed. We are cooperating. Nothing was done wrong. They talk about bullying.  The bullying was done by those three or four women.”

PAY TO PLAY INVESTIGATED

Complaints started in the late fall shortly after parents began getting bombarded with invoices from the booster club. When parents questioned the bills of more than $1,000-a-student to participate in cheerleading, they say the management of the booster club rebuffed them.

Tornari said the costs didn’t add up.

“They said the costs were for uniforms, radios, a mat,” she said. “They couldn’t really even tell us anything beyond that. They couldn’t break down the costs and tell us what everything cost.”

Another outraged parent was Joann Gavin of Parkland, a former club official.

When the booster club was formed early in the school year, Gavin was asked to be assistant treasurer because one was required by club rules.

Gavin said despite the assistant treasurer title, the women who controlled the organization would hold meetings without inviting her and other members, effectively pushing them into the background of the group.

She added she never even met most of the other officers until she started to complain about the program. However, as assistant treasurer, Gavin had access to the booster club’s bank statements and cancelled checks

Gavin was shocked when she reviewed the club’s financial records.  She said she found that the club had raised roughly $60,000 from invoicing parents.

The cancelled checks showed the club had hired two outside assistant coaches for $600-a-month.  One coach was paid an additional $3,000 for “choreography and music,” according to the notation on the check.  Other individuals were paid for t-shirts and bags.  There was a check for $375 for bows paid to an individual.

“There was definitely something wrong.  When were any of these expenses voted on by the club?” Gavin said.

With the help of an attorney, parents found that allowing the booster club to collect and spend the money violated School Board policy. The school system’s policy is included in a Standard Practice Bulletin given annually to principals and others to ensure the millions of dollars it takes to run a school is handled properly.

Under the rules, the booster club must give all monies collected to the school for handling. The policy also bans requiring parents to pay, in part to ensure programs are open to students who may not have the money to participate.

The rulebook capitalizes the prohibition in the policy.  Booster clubs “May Not charge parents a fee for instructional material, equipment or supplies relating to the school program or activities,” states Policy I-101 VI.

PRINCIPAL CONFRONTED

Principal Washington Collado

Armed with information about the cheerleading program, Gavin met with the principal at least twice, first alone and then with others concerned about the booster program. Those who attended the meetings say the principal did nothing to change the program.

Gavin, meanwhile, received a registered letter banning her from the campus under a School Board policy designed to eliminate threats to students and staff.

Although she had two children in the school and there were no allegations she was dangerous, Collado’s open-ended ban forbid her from even entering the school’s front office. She has sued in Broward Circuit Court charging that Collado and the school system violated her constitutional rights to due process by not allowing any method to protest the ban, like a hearing.

Another parent, Kathy Silver, complained to coaches that her daughter had been bullied in the program.

Silver said she protested to cheerleading coaches that her daughter was continuously bullied. Silver and at least two other parents said girls were subjected to insults by coaches and other cheerleaders during performances.  The bullying allegedly continued via social networking sites on the Internet.

The School Board has a strong policy to fight bullying and requires that any written or oral complaint be investigated.

Silver said that did not happen. “No one would listen. No one did anything,” she said.

SAFETY CONCERNS CITED

Parents also cited safety issues with the cheerleading program.

Gavin said she knows of six students who have been injured in Stoneman Douglas cheerleading.

Julie Chaykin, a co-founder and vice president of the U. S. Cheerleading Association, has a daughter in Stoneman Douglas cheerleading.  On May 20, she e-mailed School Superintendent Robert Runcie and several other school system administrators that the program was rife with problems.

Her e-mail was prompted by Collado’s reappointment of Cheerleading Coach Melissa Prochilo. Chaykin wrote that she was astounded the coach was being allowed to run the program again despite numerous complaints and what she said were the “extremely dangerous” stunts forced upon students.

“After personally hearing and viewing several extremely dangerous and inappropriate situations…I was quite confident that once our administration became aware of the situation, that it would be impossible for Melissa Prochillo to remain on staff in any capacity, dealing with the Cheerleaders at our school. No knowledgeable coach would ever have an athlete attempt a level 4 skill without first safely perfecting the progression of skills preceding said level,” Chaykin wrote.

How long the investigation might take is not known. “I do not have a timeframe for the completion of the investigation,” Clark said.

On April 30, months after the first complaints, a notice was posted on the school’s web site reminding parents that the new season of cheerleading was starting again. The notice ended with a reminder that parents were to bring to the initial meeting “$150 cash or money order – NO EXCEPTIONS!!”

“He just doesn’t care about anything we said,” Gavin said referring to Collado.

Buddy Nevins can be reached at bnevins@browardbulldog.org

 

 

 

Hallandale Beach’s Gulfstream Park developers win concessions from city, county worth millions

By William Gjebre, BrowardBulldog.org 

The Village at Gulfstream Park

Developers of a $1.2 billion residential and commercial development at Gulfstream Park have convinced commissioners at Broward County and Hallandale Beach to release them from an earlier pledge to build 225 units of affordable housing.

The county and city also agreed to eliminate requirements to build a 500-car parking garage area nearby and a connecting shuttle bus service to Hollywood’s Tri-Rail station. The concessions should save the developers of the Village at Gulfstream Park as much as $15 million.

As an alternative to building the 225 units, the developers have agreed to pay the city’s Community Redevelopment Agency at least $5,000 per unit – or $1.1 million. The money would go to rehabilitate housing or build new residences for low income residents elsewhere in the city.

“They are letting them off cheap,” said Broward Commissioner Sue Gunzburger, who opposed the project six years ago. The county commission OK’d the changes 6-3 in March.

“That’s way too low,” lamented community activist and city commission candidate Csaba Kulin. He said developers should have been asked to pay $50,000 per unit, or $11.5 million – an amount he contends was the city’s original low-ball estimate of building costs.

Kulin said developers would save an additional $5 million by not having to build the 500-car parking facility, and up to $250,000 a year by not having to implement the shuttle service. “Three gifts worth about $17 million,” Kulin said.

A spokesman for Village at Gulfstream Park defended the money-saving deal modifications.

“Things have changed since the project was approved,” said Will Vogel. He said that’s why Hallandale Beach approved the changes in December and the county followed suit in March.

The 1 million square foot development at Hallandale Beach’s famous horse track and casino is a signature project for the city, featuring commercial, condo and office space aimed at making it a destination, like downtown Fort Lauderdale, Aventura and South Beach.

CITY REBUFFS CRITICS

Alvin Jackson, executive director of Hallandale’s Community Redevelopment Agency, said the money from the developer will be used to “create a pot of funding to address existing substandard and foreclosed housing and possibly build some new housing in other parts” of the city’s redevelopment agency. He said he did not know how far $1 million would go to rehabilitate existing housing or build new housing.

“I don’t feel the developer got off the hook” by being allowed to contribute $5,000 per unit as an alternative to building them, Jackson said.

Broward County Director of Housing, Finance and Community Development Ralph Stone said that when the economy was booming it was possible to extract more money from developers for affordable housing.

“There was a profit in many of these projects and the builders could afford” to offer additional inducements,” Stone said. “But the real estate market and the economy changed; there’s less profit and thus these [inducements] could not be supported in projects in today’s market.”

“We have to be realistic,” Stone said.

In unanimously approving the proposed changes, Hallandale Beach commissioners included a provision urged by Mayor Joy Cooper that would hike the $5,000 payout slightly to adjust for annual increases in construction costs.

BIG PLANS FIZZLE

The project received widespread attention in November 2006 when the Hallandale City Commission approved zoning for the mixed-use project on 60.8 acres at the southeast corner of Hallandale Beach Boulevard and Federal Highway. This is the city’s busiest intersection, just opposite city hall and the city library; the city of Aventura is just south.

The Village at Gulfstream Park s a joint venture of Forest City Enterprises, headquartered in Cleveland, Ohio, and MI Development Inc. (MID), a real estate whose racetrack properties include Santa Anita Park in Southern California and Gulfstream Park, according to the developer’s website.

The joint venture presented a bold plan that was approved by the city and the county: 1,500 condominium units, including 225 affordable/workforce housing units, 75 of them inside the complex, and the other 150 offsite; 750,000 square feet of leasable retail space; 140,000 square feet of office space; a 500 room hotel and a 2,500 seat movie complex.

When built out, the complex and the adjacent race track and casino make for a compelling draw for locals and visitors from around the world.

The first portion of the restaurants and shops open February, 2010.  Currently there is approximately 420,000 square feet of retail and 100,000 square feet of office.

With the approved changes, Vogel said, it is now “more practical and feasible to go forward.”

Vogel said Village at Gulfstream Park is having some talks with developers regarding construction of the residential units. City documents indicate that, giving the current economic situation, the first units may be rentals rather than sale units. There may be some workforce housing and some affordable housing in the complex, Vogel added.

The developers hope to have agreements by the end of this year, Vogel told city commissioners, for not only the first housing units, but also for the hotel, and the movie complex.

William Gjebre can be reached at wgjebre@browardbulldog.org

 

Ft. Lauderdale police report altered to hide cop’s arrest; Courthouse clash over need to investigate

By Dan Christensen, BrowardBulldog.org

Original I.A. report states "Officer was arrested," left. Revised version, right. Click to enlarge.

The Broward State Attorney’s refusal to pursue a Fort Lauderdale Police Internal Affairs report that was purged of information about an officer’s arrest has drawn the ire of Public Defender Howard Finkelstein.

Finkelstein asserts that the police broke Florida public records law when the head of Internal Affairs changed a police database to delete any mention of the out-of-state arrest of Sgt. Jerald Fuller.

Fuller had been arrested in New York in connection with a dispute involving property damage. A New York municipal judge dismissed the case and sealed the court file four days after Fuller’s July 19, 2009 arrest.

Fort Lauderdale Police Capt. Rick Maglione, who left Internal Affairs in 2011, says he removed the arrest information to comply with the judge’s order.

It can be a crime in Florida to falsify or alter a public record, whether a paper report or an electronic database. So when a tipster alerted the Public Defender’s Office in February to what was done, a request was made for State Attorney Michael Satz’s public corruption unit to investigate.

Assistant State Attorney Tim Donnelly said last week that he spoke with Maglione and determined no investigation was necessary.

“There is no crime in editing your own document,” Donnelly told Broward Bulldog. “It’s not a public record. It’s like a Word document.”

Finkelstein is not happy with Donnelly’s conclusion.

“Despite direct evidence that a police captain, while conducting an Internal Affairs investigation, altered a report to conceal the fact that a police officer was arrested, your office has found nothing wrong nor even found the need to investigate,” Finkelstein said in a recent letter to Satz.

In an interview, Finkelstein added, “The public record is not a work of fiction, but that’s what happened here….It was creative writing to make it appear that what happened didn’t really happen. If it isn’t illegal, it is certainly unethical.”

Public Defender Howard Finkelstein

SERGEANT DISCLOSED ARREST

Fuller, a supervisor with the city’s controversial anti-drug unit known as the Northwest Raiders, disclosed his arrest to superiors. Details, however, are sketchy. Not only is the New York court file sealed, Maglione did not obtain – or request – a copy of the New York police report describing what happened. New York law allows police agencies access to sealed cases.

“Everything I had was self-reported” by Fuller, said Maglione, a former Raider. “I was satisfied with that because I was also assured (by Fuller’s New York lawyer and an unnamed local district attorney) that no crime occurred.”

Maglione’s account, based solely on what Fuller told him, states that Fuller was on vacation in Niagara County, N.Y. on July 19, 2009 when “he became involved in a disturbance at a privately-owned residence.” Fuller, a 19-year-veteran, was with his brother “and another individual known to the Fuller family, the report says.

“The disturbance prompted a neighbor to contact the local police and it was initially determined that Sergeant Fuller and his brother were responsible for some minor damage to the other individual’s property, but any contemplated charges were subsequently dismissed once it was determined that no crime occurred,” the report says.

Maglione’s report does not say what crime Fuller was charged with, provide the location and time of the incident, describe the damage or say what police agency investigated.  It also does not mention that one or two other persons were arrested.

Likewise, the police file includes no notation that the report was altered because of New York law. The department’s software system, IAPro, also does not track such changes. “It overwrites the first entry entirely,” Maglione said.

Maglione, now a top aide to Chief Frank Adderley, says he deleted the arrest information in an update before finalizing his report in August 2009. But Al Smith, Finkelstein’s chief investigator, said he determined the alterations were actually made about a year later. During that time, he said, the cleaned-up version was sent out in response to several requests for information about Fuller.

The arrests occurred on a Sunday. By the end of business Thursday, the case was dismissed and sealed by Somerset Town Court Justice Donald P. Martineck.

A few days later, Fuller presented Maglione with a letter from his attorneys, George Muscato and Michael H. White Jr., declaring that “all charges” had been dismissed and that complainant Clayton Cooper had signed a document stating “he did not want to pursue any further charges” and, in fact, had never wanted “to bring charges in the first place.”

Cooper is not further identified. A 78-year-old man with the same name who resided in a small home in the tiny town of Barker, which is surrounded by Somerset, N.Y, died in September 2010.

CLOSED CASE COMES BACK

Maglione closed Fort Lauderdale’s Internal Affairs investigation on August 10, 2009. He did so, he said, without obtaining a police report to verify what Fuller had told him. A signed hard copy of his report, sans mention of the arrest, is included in the file. Case closed, he said.

Captain Rick Maglione

But two and a half years later, on February 1, 2012, investigator Smith, a former Fort Lauderdale police detective, received at his home copies of two nearly identical internal Affairs reports about the New York incident. The second, as Smith put it in his referral to prosecutors, was “sanitized” to omit the fact of Fuller’s arrest.

The Public Defender’s Office filed a public records request seeking Fuller’s file because he is a witness against a client. The police coughed up the version of the report that does not mention that he was arrested.

Police legal advisor Bradley Weissman now says it was a mistake for police to release even the censored report because of the blanket sealing order.

“I believe we made an error when we turned it over,” Weissman said. Still, Florida’s broad public records law requires such records to be open to the public.

Fuller’s Fort Lauderdale attorney, Michael Gottlieb, is upset that someone leaked Internal Affairs records about his client. He said he suspects it was done by “somebody in internal affairs who wanted to get somebody else in trouble and who thought this case was improperly closed or that favoritism was shown.” He declined to name names.

A MATTER OF CONCERN

While prosecutors have brushed the matter off, Finkelstein’s letter to Satz calls it a matter of “great concern” because defense counsel rely on information in Internal Affairs files to locate information they can use to impeach the testimony of officers who are witnesses against their clients.

The disagreement is part of long-running legal spat between Satz and Finkelstein about pre-trial disclosure by prosecutors. For nearly 50 years, courts have required prosecutors to turn over so-called Brady evidence – information favorable to a defendant.

Satz has said his disclosure policy “far exceeds” his legal obligations under Brady. Finkelstein counters that Broward prosecutors tend to withhold too much potentially favorable evidence and have little interest in enforcing Brady requirements when it comes to the police. He cited that concern in his letter to Satz.

“The failure to address this incident evidences the double standard your office employs when police misbehavior is at issue,” Finkelstein said.

 

Broward may finally get the lead out at Markham Park; environmental clean up nears at gun range

By Tom Lassiter and Dan Christensen, BrowardBulldog.org 

After years of delay, Broward officials are finally poised to tackle the hazard posed by hundreds of tons of lead that’s been accumulating at the Markham Park Target Range since it opened in the 1980s.

The gunfire has continued there at a fast and furious pace as the county dithered about what to do. But on May 22, the County Commission will consider proposals from five companies for cleaning up what county officials long have known was a festering, environmental mess posed by lead shot and clay targets in a small lake and an adjacent wooded area.

County staff reviewed and ranked the proposals in February. If the commission approves, county staff will begin negotiations with the top ranked firm, MT2 of Arvada, CO.

Clean-up work at the target range, on the edge of the Everglades off State Road 84 in Sunrise, could begin sometime this fall and take several months to complete.

“We think by doing this project, we will eliminate any (environmental) concerns,” said Dan West, director of Broward County Parks and Recreation since January 2010.

West said the county has found no evidence lead has moved into the underground water supply or adjacent wetlands, the primary environmental concern.

“We are routinely conducting tests on the surface water and the adjacent canals and there has been no evidence that the lead is migrating off site,” he said.

TOXIC LEAD IN GROUNDWATER?

In 2009, however, two independent experts told The Miami Herald that monitoring at the site was inadequate to accurately assess whether lead was leaching into groundwater.

Dr. Christopher Teaf, project director for the Center for Biomedical and Toxicological Research at Florida State University, said then that there was “plenty of evidence” that lead had migrated off-site at Markham Park. On Wednesday, he said he’s seen nothing since to change his opinion.

High concentrations of lead can cause brain and nerve damage in humans. Fish and birds can be similarly poisoned. At least two former workers at the target range have blamed health problems on years of lead exposure.

 Commissioner Ilene Lieberman, whose district includes the park, said the clean up is now high priority. “It’s been a long time in the process,” she said.

 County officials have been talking about a clean up for more than two decades. In 1991, the Sun-Sentinelreported that a county study had found lead contamination at the range, which was then attracting 60,000 target shooters a year.

Markham Park Target Range

 In 1998, another county study found that the bottom of six-acre Shotgun Lake had a 350-ton layer of splintered clay targets five feet thick.

 Limited clean up has been done at the rifle range, where spent slugs are removed and recycled from an earthen backstop every five to eight years. The county also installed a liner to prevent lead from polluting storm runoff.

 In 2004, Florida lawmakers exempted gun range operators from local oversight. In response to concerns that the high cost of clean ups could interfere with gun rights. Instead, ranges were supposed to follow “environmental stewardship guidelines.”

 The guidelines, issued by the state Department of Environmental Protection, emphasized, “The one thing you can do immediately is to stop firing over and into surface water or wetlands.”

 But that didn’t happen at Markham Park.

In 2009, officials talked about taking action, but the idea died in a severe budget squeeze.

COUNTY FINALLY TAKES ACTION

 Last June, with Commissioner Kristin Jacobs absent, the commission voted 8-0 to seek cleanup proposals.

MT2’s plan came in at $2.7 million, West said. But that figure will be reduced by a credit to the county based on how much the company gets recycling and selling the lead.  That could amount to $700,000 to $750,000, according to the company’s proposal.

 “We got (proposals from) very reputable firms, and the number one ranked firm has done over 600” similar clean ups, West said.

 The other four companies didn’t submit specific costs, but did, as required, commit to completing the project within the county’s $2.2 million budget, which includes a later phase involving wetland mitigation.

 Much of the upfront cost will be paid with revenue from the $1 lead remediation fee charged each shooter on top of the regular shooting fee. The county has about $865,000 in the lead reclamation reserve fund that will go toward the clean up, West said. The balance will be covered by future fees, he said.

 The project calls for the removal of lead and clay target fragments from the Shotgun Lake and from five acres of wooded area directly north of the skeet and trap range.  Non-native melaleuca trees in the area also will be removed, county officials have said.

MT2’s proposal disturbingly indicates that it expects to find hazardous levels of “leachable lead” in both lake sediment and “shot fall zone soils” that could impact surface and groundwater.

The work can be scheduled to assure shooters have access to the range at least eight hours a day and on weekends for most of the project, according to the firm’s proposal.

 In the first phase, MT2 will remove all the vegetation and excavate and process the surface soil to remove lead from the soil down six inches or a foot depending on conditions.

The firm will then drain and excavate the lake, process sediment to remove lead, and fill the hole with new soil. During that phase, shooting might be restricted to weekends only for a period of one to two weeks, according to the proposed plan.

The entire project area will then be graded and covered with sod.

 To entice commissioners to choose them, the firm also offered to assess additional areas impacted by lead shot that are outside of the immediate project area and to help the county develop an Environmental Stewardship Plan for the range.

 

Hallandale’s generous loans to private surgery center raise more questions about city program

By William Gjebre, BrowardBulldog.org 

Hallandale Outpatient Surgical Center, from its web site

The owner of a private, for profit surgical center received two $100,000 taxpayer-backed business loans from Hallandale Beach after city officials changed guidelines that previously had allowed for only one such loan.

City records show the Hallandale Outpatient Surgical Center, 306 E. Hallandale Beach Blvd., benefitted from the second $100,000 loan after the city doubled a cap that had limited such loans to a total of $100,000. Who authorized raising the cap, and why, is not clear because city records are incomplete.

The city’s Community Redevelopment Agency (CRA) administers the $200,000 in loans. But nearly a third of that money – $65,000 – amounted to a gift from taxpayers because the city has said the surgical center does not have to repay it.

The city awarded the low-interest loans even though the surgical center’s owner/manager, Dr. Lance Lehmann, reported annual wage income averaging more than $700,000 for three years prior to obtaining the first development loan in 2005.

For nearly a year, Broward Bulldog has reported about questionable CRA business loans and land purchases. The city’s management practices, including those at CRA, are now under investigation by the Broward Inspector General’s Office, which sent several agents to Hallandale Beach City Hall on April 10 to meet with city officials.

Hallandale Beach’s redevelopment agency is funded by property tax dollars and funds are allocated for community and business improvements.

Lehmann did not respond to repeated requests for comment.  However, CRA director Alvin Jackson said the medical center, which opened in 2006, has been an asset, making its loan repayments on time, improving the area, increasing the tax base and providing jobs.

“That’s a fine example of what should happen,” said Jackson, who was named CRA director 15 months ago, after the surgical center loans were approved.

Nevertheless, the city’s generous terms coupled with a lack of documentation in city files raise new questions about its troubled business loan program. Why was Hallandale’s cap on loans was changed? How did the surgical center become eligible for additional funds when it was a party to the cap on its first loan?

A WINDING TRAIL OF PAPERWORK

The CRA’s file on the medical center is a winding, yet incomplete trail of letters and memos. The records clearly show the city commission, which also sits as the CRA’s board of directors, approved the first $100,000 loan. The second loan appears to have been OK’d by City Manager Mike Good.

Lehmann initially sought a city loan of $213,000 in May 2004 after acquiring the property the year before for $1.1 million. He explained the loan was needed because of rising construction costs.

The loans were not based on need and Lehman’s substantial prior income was not an impediment to obtaining the loan, according to CRA officials. Applicants are checked only to determine their ability to repay.

City staff recommended a $75,000 loan. On November 3, 2004, commissioners approved a $100,000 loan, adding a provision that only $50,000 would have to be repaid if the complex created 10 new jobs. The loan carried a 2 percent interest rate.

Lehmann’s representatives stated the business would have 24 employees, including 13 new positions. The following May, the city issued a check for $100,000 to LJL Hallandale Holdings LLC, which lists Lehmann as manager, according to state corporation records.

At the time, $100,000 was the largest city loan a business could get and the surgical center was the first to receive the maximum, according to one city memo.

A memo in February 2006 stated that Lehmann inquired about borrowing additional taxpayer money, saying he was told to submit the request to then city manager Good.

The medical center formally requested the additional $100,000 April 2006, seeking the same terms as the original loan.

STAFF CONCERN ABOUT A NEW LOAN

City staff, meanwhile, expressed reservations about additional funding for Lehmann’s project. In memos to Good in February and March that year, then Development Services Director Marc Gambrill said city policies prevented additional loans.

Gambrill cited two written policies, including one that stated “a business may only utilize a loan program once per property.” He noted Lehmann had already received $100,000 loan for site preparations.

A month later, that concern had dissipated. On April 14, Gambrill wrote another memo noting that the city had doubled the loan cap to $200,000. He recommended the city manger approve the additional loan for Lehmann’s business, and handwritten notes indicate that Good later approved it.

The file is not specific, but the policy change was apparently set in motion earlier by the city commission. On Dec. 1, 2004 – a month after it approved the first $100,000 loan for Lehmann’s project – commissioners authorized the city manger to change CRA policy “to administer and change grants, loans and finances charges for all CRA related programs.” The changes were intended to give the city manager new “flexibility in meeting the needs of the community.”

A city check for the additional $100,000, also made out to LJL Hallandale Holdings LLC, was issued July 7, 2006.

The surgical center borrowed a total of $200,000, but must only repay $135,000. The city forgave half of the first $100,000 loan, and 15 percent of the second loan.

The surgical center began paying back the $50,000 on the first loan at two percent interest on July 1, 2005, $1,382 monthly, with the final payment on the 10-year loan due on April 1, 2015.

It pays the city $2,588 a month on the second 10-year loan. The interest rate is four percent and the final payment is due on April 1, 2016.

Both loans are backed by promissory notes signed by the company to repay the city funds. The medical center also signed an agreement to use the property mortgage as collateral.

A pattern of brutality: Jury awards $175K to handcuffed suspect beaten by Miami cop

By Dan Christensen, BrowardBulldog.org

Gerald Lelieve

A federal jury has awarded $175,000 to a former Miramar resident, now a state prisoner, who it found was brutalized while in Miami police custody in 2006.

Gerald Lelieve suffered severe internal injuries that nearly killed him when he was repeatedly kicked and stomped as he lay on the ground in handcuffs after his arrest on a drug charge, according to court documents and his Fort Lauderdale lawyer Greg Lauer.

The jury also determined the Miami Police Department set the stage for what happened through a “policy, practice or custom” of depriving suspects of their constitutional right to be free from its officers’ use of excessive or unreasonable force, and that the city was indifferent to the consequences.

On March 20, U.S. District Judge Cecilia Altonaga ordered the city to pay $100,000 in damages for Lelieve’s pain and suffering. The balance – including $50,000 in punitive damages – was assessed against Officer Odney Belfort for his use of excessive force “with malice.” Large damage awards against individual police officers are unusual.

Evidence focused on the city’s failure to adequately supervise and discipline Belfort. The city and Belfort, who denied assaulting Lelieve, have asked Altonaga for a new trial.

The jury of five men and three women listened to testimony for three days in mid-March, according to a transcript of the proceedings

They gave audience to Assistant Miami City Attorney Christopher Green as he declared in opening arguments, “This is a case about credibility, pure and simple.”

They watched as Miami Officer Odney Belfort took the witness stand and denied attacking Lelieve, and insisted he wasn’t even present during the arrest on Oct. 11, 2006 arrest.  “I was not there,” Belfort said.

They heard two other officers back Belfort up under oath – including Maj. Keith Cunningham, who now heads of MPD’s North District.

But in the end the jury didn’t believe the police. They believed Lelieve, who told a very different story about his arrest.

“Everything corroborated what my client had to say. Their story didn’t make sense,” said Lauer, who tried the case along with Fort Lauderdale attorney Dion Cassata.

“The police were busting drug dealers, but it got to the point where the felt they could do whatever they wanted to do in the pursuit of drugs, including injuring people. It was like the Wild West. There was no oversight,” Lauer said.

Miami Police spokesman Maj. Delrish Moss declined comment saying  the case remains in litigation. He referred questions to the City Attorney’s Office, which also declined comment.

Miami Police Major Keith Cunningham

COCAINE LED TO ARREST

Lelieve, 41, was an itinerant cab and passenger-van driver with a lengthy arrest record that includes mostly drug crimes, but also one serious assault. Public record show he has listed addresses in Miramar and Miami, although he gave an Orlando address at the time of his 2006 arrest.

Today, Lelieve is serving 6 ½ years in Florida’s Marion Correctional Institution for cocaine trafficking.  He sold no drugs, but according to police was holding 59.6 grams when they arrested him driving away from a Little Haiti drug house. That’s above the 28-gram threshold where possession becomes trafficking under Florida law.

Without a lawyer, Lelieve later sued the city and Belfort for violating his constitutional rights. His complaints were dismissed four times until it was reviewed by the federal Volunteer Lawyers Project, which offers free representation to the indigent, and found to have merit.

Belfort and his partner, Desreen Gayle, were undercover “eyeballs” that evening, police slang for officers who conduct surveillance. They radioed a description of Lelieve to fellow officers in the city’s Crime Suppression Unit who took him down, despite his strong protests of innocence.

Lelieve heard an officer radio Belfort, apparently double-checking that they’d gotten the right guy.

Soon,  Belfort appeared. “They asked him, ‘That’s him? He say yes,” Lelieve testified.

BEATEN SUSPECT HEARS A POP IN HIS STOMACH

Belfort was face up on the ground with his hands cuffed behind him as Belfort approached him.  “He say I think I am slick and he started kicking me,” Lelieve said in broken English. “When he kicked me I feel something pop in my stomach.”

Lelieve, a native of Haiti who stands six-foot-one and weighs more than 200 pounds, couldn’t defend himself. “I tried to move my side, but he keep on kicking me…about seven times.”

“I recognized Officer Belfort when he kicked me. I will always remember his face,” Lelieve said.

Other members of the city’s Crime Suppression Unit, an elite drug-busting squad, did nothing to stop Belfort. But when the beating was finished one asked, “Why did he do that?” said Lelieve.

Helped to his feet and into a police van, Lelieve complained of pain. He briefly saw a doctor. “He just touched my stomach and he say I am all right,” Lelieve said. “He don’t even do an x-ray or nothing.”

But overnight in a holding cell at the Miami-Dade County Jail, Lelieve lay on the concrete floor and threw up. The following afternoon, a nurse sent him to Jackson Memorial Hospital by ambulance. He told medics the police had hurt him.

Dr. Mauricio Lynn saw Lelieve. He diagnosed blunt abdominal trauma, and found enough blood in his belly to fill a two-liter bottle. He operated to repair a large tear in his patient’s abdominal cavity.  Lelieve spent more than a week in the hospital.

The city’s lawyers offered jurors no explanation as to how Lelieve came to be seriously injured while in police custody. Nor did they call to testify other officers who were present during the arrest.

The jury determined that Belfort acted with “malice or reckless indifference” when he employed excessive force on Lelieve. But it was their finding of Miami’s “policy, practice or custom” of allowing officers to get away with abusing suspects that formed the basis of the damage award against the city.

A HISTORY OF COMPLAINTS

Belfort, hired in 1994, has a history of complaints related to his use of force, abusive treatment, and improper procedures. His internal affairs profile lists 29 separate incidents from 1996 to 2007.

Most were not sustained. Lelieve’s lawsuit contended the city often failed to investigate such matters, routinely filing cases away as “information only” or “inconclusive.”

The jury heard details of three Internal Affairs cases in which charges against Belfort were sustained, but no discipline was imposed.  Prosecutors were not told about the cases, Lauer said.

In one 1999 case that was aggressively investigated, Belfort’s behavior was similar to what Lelieve said happened to him. Belfort was accused of pepper spraying two men who didn’t get out of his way fast enough as he drove by in his patrol car on NW 64th Street at First Place.  Belfort denied it, saying he wasn’t in the area at the time.

But investigators later determined his pepper spray canister had been used and that he hadn’t reported it. They also found a witness who said he saw Belfort spray the men after punching one of them twice.

“You all can’t get out of the way? You all think I’m playing?” Belfort said, according to the witness.

Belfort was found to have violated Civil Service rules that were grounds for dismissal. Instead, it was recommended he forfeit 30 days of sick time. In the end, no punishment was imposed, nor were prosecutors notified of the attack or Belfort’s attempt to cover it up.

In its defense, the city presented no evidence that Internal Affairs ever investigated Lelieve’s injuries – even after being put on notice by the filing of the lawsuit.

“Everything is kept in house, swept under the rug,” Lauer told the jury.

In an interview, Lauer described MPD Internal Affairs as essentially a charade.

U.S. District Judge Marcia Cooke

“It is supposed to give the appearance that they are doing something and that they want to keep violent cops off the street, but if you really look at them what they are doing is protecting each other,” said Lauer.

MIAMI POLICE CRITICIZED BEFORE

Miami U.S. District Court Judge Marcia Cooke said something similar in a scathing 2005 order rebuking the city about its officers’ excessive use of force in another civil rights case a year before Lelieve was brutalized.

Her order focused on an apparent pattern in which Internal Affairs justified police shootings “despite evidence to the contrary.”

Wrote Cooke: “The court is perplexed as to how this shoddy police work and repugnant behavior can continue, unquestioned. The facts show that this behavior continues because it is condoned by MPD supervisors, internal affairs and comrades in arms.”

Juries typically don’t explain themselves when they make findings after listening to the evidence. But the jury that heard Lelieve’s complaint appears to have shared Cooke’s thoughts.

Lauer said his client is “just happy to get his day in court and tell the jury what this officer did to him.”

State records show that Lelieve is due to finish his sentence on December 3. But he won’t be a free man; the U.S. Immigration and Customs Enforcement wants Lelieve detained while they move to deport him to Haiti.

Back in Miami, where the jury’s decision has gone largely unnoticed, a change in police culture does not appear to be on the horizon. City Hall hasn’t pushed for it. And the new police chief, Manuel Orosa, has a history that includes involvement in a notorious brutality case 23 years ago.

Orosa, a 31-year veteran on the force, was a sergeant in 1988 when a squad of Miami cops beat a drug dealer named Leonardo Mercado to death.

Orosa wasn’t on the scene of the beating, but he was the supervisor of six of the cops later charged in Mercado’s death. He was suspended with pay in 1989 for failing to preserve evidence in the case, and later testified for the defense in the cops’ trial.

 

Bureaucrats’ last minute demand alters Broward trash negotiations and could lead to higher rates

By Buddy Nevins, BrowardBulldog.org

Deputy Broward County Attorney Noel Pfeffer makes a point while Solid Waste Director Elliott Auerhahn listens during negotiations over new waste disposal contract.

The promise of the lowest price for waste disposal could be thwarted by a last-minute demand from top Broward County administrators.

The county was in the throes of negotiating a multi-million dollar waste disposal contract when suddenly the government issued a requirement that any company must provide a list of disposal sites.

“This is a big issue, a very big issue…Cities will have problems that they don’t know where their garbage is going,” Thomas Hutka, Broward’s public works director, explained during contract negotiations this week.

Newcomer Sun/Bergeron immediately complained that the new mandate favored Wheelabrator Technologies, the Waste Management subsidiary which has held a near monopoly on Broward’s waste disposal for over 20 years and already owns a landfill and a pair of waste-to-energy plants here.

“When Wheelabrator won this contract 20 years ago, they didn’t have a disposal site. We are newcomers,” said Aleida “Ali” Waldman, Bergeron’s general counsel.

Sun/Bergeron Vice President Phil Medico contended residents and businesses could get a better deal by disposing of the waste in whatever facility has the best price rather than tie themselves to one site for five years.

Under Sun/Bergeron’s proposal, waste would be sent to various transfer stations around Broward and then sorted through for recyclable material.  Anything that could not be recycled would be trucked to yet-unnamed disposal sites.

Wheelabrator proposes to continue disposing waste in its two company-owned existing sites. The waste is minimally processed for recyclables and is either burned or buried – in a landfill along Florida’s Turnpike in North Broward or in an incinerator just south of Interstate 595 in Davie. The burned trash at both locations is used to generate electricity.

The sites were built in the late-1980s under a contract with Broward County that will expire in 2013. Under its current agreement, Wheelabrator handles the disposal for 26 of Broward’s 31 cities.

Waste removal involves two separate jobs.  A hauler has a franchise with each city to pick up waste at homes and businesses. That waste is then hauled to a disposal site that tacks on a fee. The hauling and disposal fees are generally rolled into one fee paid by residents and business owners.

The current negotiations involve only disposal, but it is a contract worth tens of millions of dollars over five years.  Negotiators are working over details of the contract at this point and no final prices have been set.

DEAL TO MAKE OR BREAK TRASH MONOPOLY

With the end of its contract on the horizon next year, Wheelabrator at first proposed extending its monopoly for 20 years through 2033. Sun/Bergeron saw an opening and launched a lobbyist effort to block the renewal of the contract.

The lobbying worked. Enough cities, and eventually the Broward County Commission, voted to reject renewal with Wheelabrator. They gambled that better rates could be obtained by pitting Wheelabrator against Sun/Bergeron in competitive bids.

Miramar agreed to be the first city to ask for competitive bids from the two disposal companies. Wheelabrator’s bid was $52.50 per ton, compared with Sun/Bergeron’s $43.25 per ton. Sun/Bergeron got the nod, and a deal is being negotiated. The negotiations by the county and other cities is their attempt to fine-tune the Miramar bid to see if an even a better deal can be reached.

Sun/Bergeron is a joint venture, which is headquartered in Davie in an industrial area near I-595.  Sun Recycling, the operating partner, is a subsidiary of the veteran waste company Southern Waste Services of Lantana.  Bergeron Environmental and Recycling is the latest venture of Broward entrepreneur Ron Bergeron, who is already a dominant force in road building, storm recovery, real estate and rock pits.  Medico, a long-time waste industry executive, is the chief negotiator for Sun/Bergeron.

Medico told county negotiators that “supply and demand” would lower the price over the next five years because numerous new waste disposal sites are expected to open in South Florida, and there would be a “surplus of opportunities to dispose of waste.”

There sites in Miami-Dade, Lee and Okeechobee Counties. Palm Beach County is building a waste-to-energy incinerator that is scheduled to go online in 2015. Any site picked by Sun/Bergeron – like all legal disposal sites in Florida – would have gone through a rigorous permitting procedure by the state.

“Any waste will have a final resting place in a legally permitted class one facility,” Medico said.

MISSED OPPORTUNITIES?

Speaking to negotiators this week, Medico warned that Broward should not make the same mistake it did in the 1980s by binding disposal to one company’s sites. The county missed opportunities to lower prices because “you were tied up in a 25-year monopoly.  You didn’t have a choice” about what sites to use, Medico said.

Under the rules of the negotiating sessions, each company gets a day to be grilled and explain its position on why they should be chosen to dispose of Broward’s waste.  The discussion of the sites came on Thursday when county staffers and two city managers – Lee Feldman of Fort Lauderdale and David Rivera of Coconut Creek – were going over Sun/Bergeron’s proposal line-by-line.

Thursday was Sun/Bergeron’s day to be questioned. Wheelabrator’s Vice President of Operations Bill Roberts and Senior Legal Counsel Emily Kahn sat in the audience taking notes.

In an interview earlier with Broward Bulldog at Wheelabrator’s sprawling computerized incinerator plant in Davie, Roberts made his case for his company to continue the contract.

All waste delivered to Wheelabrator’s South Broward plant ends up in this gigantic bin. This is approximately 12 tons of garbage. Photos by: Buddy Nevins.

“We have a proven technology that’s reliable…The infrastructure exists. These facilities are strategically located,” Roberts said.

He added that having the disposal sites in Broward contributed $23 million in wages, goods and services and other indirect spending to the county’s economy.  He said disposing waste locally takes vehicles off the road because it doesn’t have to be transported to another county.

“Our system has worked very well for 20 years,” he said.

The county led negotiations are scheduled to conclude and go to the County Commission for its approval by May 8.  On paper the negotiations only involve the small slice of Broward that is unincorporated, but several cities are expected to piggyback on the agreement, hence the presence of Feldman and Rivera.

Deputy County Attorney Noel Pfeffer, who is leading the negotiations, said the company that is chosen is expected to go out and sell the agreement to the 26 cities now using Wheelabrator.  “There will be some period of time (built into the final contract) for the company to go out and market the agreement,” he said.

COMPETITION AND LOWER RATES

Competition has already driven down the price of disposing of garbage in Broward. More price pressure is likely. For instance, there is an overcapacity at Wheelabrator’s South Broward waste-to-energy plant.

The plant was built to handle 1.5 million tons a year. A few years ago it was processing 1.2 million tons. Today, it’s just 900,000 tons due to the failure to forecast increases in recycling and the struggling economy.

“In the end, they have to have waste to keep that facility going.  If they lose this contract and aren’t getting enough waste, they’ll cut the price and accept waste from other counties,” predicted a waste industry source.

Roberts confirmed that Wheelabrator’s local facilities would have to take waste from other counties if they failed to get enough from Broward.

One company that could conceivably help fill Wheelabrator’s plant is Sun/Bergeron,  if rates drop far enough.  Sun/Bergeron would collect the waste at transfer stations in Davie and elsewhere, then send it to the plant for disposal.

“We have a contract with them for disposal in other places,” Medico said.

 

 

 

Florida criminal probe, whistleblower suit spotlight tree poisoning to make way for billboards

By Myron Levin, Lilly Fowler and Stuart Silverstein, Fair Warning

The stump of one of more than 2,000 trees allegedly cut by a billboard company in North Florida. A grand jury said the state wrongly issued cutting permits.

Robert J. Barnhart was a crew chief for a billboard company, and a soldier in a war on trees.

Trees were the enemy if they spoiled the view of a billboard. On days of an attack, Barnhart, 27, would arrive by dawn at Lamar Advertising Co. in Tallahassee, Fla. After removing the magnetic Lamar logo from a company truck, he would set forth with a machete, a hospital mask and a container of what he described as a “pretty gnarly” herbicide.

It was all about being fast: Hack into the roots or base of the tree, douse the wound with herbicide, and get out of there. The Lamar executive who gave the orders, said Barnhart, called it “a hit and run.”

Barnhart’s account, detailed in court papers and in statements to investigators, is the focus of a criminal investigation. It also is the basis for a whistleblower suit in which Barnhart, who through his lawyer declined to be interviewed, maintains that he was fired because he would not keep poisoning trees. His claims are supported by sworn testimony from Barnhart’s former supervisor, Chris Oaks, who admitted that he, too, had illegally poisoned trees before Barnhart took over in 2009 as poisoner-in-chief.

As long as there have been billboards, trees have been getting in the way. And billboard companies have been removing them—sometimes legally, sometimes not. News archives are replete with accounts of mysterious tree disappearances near billboard sites. Usually, no one gets caught, due to lack of evidence or to officials failing to aggressively pursue those responsible.

Fewer trees means more viewing time for motorists, and more money for billboard operators. A 500- foot clearance in front of a sign creates more than five seconds of viewing time for a motorist going 60 mph.

It’s uncertain if the Tallahassee tree-poisonings were isolated, or reflect a pattern at Lamar. The Baton Rouge, La.-based company has nearly 150,000 billboards, more than any other U.S. outdoor advertising firm.

Barnhart and Oaks said they acted under orders from Lamar’s former regional manager, Myron A. “Chip” LaBorde, who ran company operations in Florida and Georgia and was past president of the Florida Outdoor Advertising Association LaBorde died of pancreatic cancer last summer.

Hal Kilshaw, a Lamar vice president and chief spokesman, declined to discuss the criminal investigation, but said “cutting of trees or poisoning of trees without the required permits would be contrary to company policy.”

Robert Barnhart and his wife, Kimberly. Barnart claims he was fired by Lamar Advertising last year when he refused to continue poisoning trees

Charges in the tree-poisoning case could be filed soon. Meanwhile, another tree-killing binge in the Florida panhandle has also drawn attention. In that episode, billboard operator Bill Salter Outdoor Advertising cleared more than 2,000 trees from public rights of way to enhance views of its signs.

Florida transportation officials acted “in flagrant violation of the law” in issuing permits for the cutting, a grand jury found in January, because, among other things, they did not require Salter to compensate the state for the loss of the trees, valued at $1 million to $4 million. The permits were issued to Salter after a state legislator, Greg Evers, intervened by making calls to the state Department of Transportation. The agency is currently negotiating with Salter for repayment.

Tree pruning also happens routinely, and legally, by arrangement between billboard operators and private landowners. The industry has lobbied for state laws to allow tree cutting along public highways under certain conditions. According to the Outdoor Advertising Assn. of America, the industry trade group, 29 states, including Florida, have “reasonable” regulations on clearing vegetation that blocks views of signs. The group says on its website: “The OAAA discourages vegetation control that is not in compliance with state and local laws and regulations.”

However, environmental groups have criticized these laws, asking why publicly owned trees that provide beauty and shade should be removed to accommodate advertising signs. Though billboard companies pay for the cutting, critics say permit fees and compensation for destroyed trees do not meet the real cost to taxpayers. Moreover, they note, in states that permit vegetation removal, illegal cutting still takes place.

Lamar’s Kilshaw said his company’s record is good. “We have over 150 offices, we have thousands of employees, we’ve been in business over 100 years,” he said. The record shows Lamar is “doing the right thing almost all the time, almost everywhere.”

“An Honest, Legitimate Mistake”

In 2008, Lamar was sued by the state of Connecticut after the company and a tree service trespassed on state land and removed 83 trees along Interstate 84, including oak, spruce, maple and birch trees up to 37 inches in diameter. They “swept a swath of destruction,” said then-Attorney General Richard Blumenthal, “obliterating a vital environmental buffer protecting homeowners from noxious noise and views.”

The problem was that Lamar had a permit to trim—not cut down—trees. It also felled trees outside the permitted area.

It was “an honest, legitimate mistake,” Kilshaw said, adding that a state transportation official had observed the work without raising objections. But a judge found Lamar liable in October, 2010. In lieu of paying damages, Lamar agreed to fund a replanting program for an estimated $181,000.

In 2009, Lamar was forced to pay about $182,000 to an irate Ohio couple for illegally felling 34 trees on their property to improve views of a sign.

The dispute began in the late 1990s when, according to John Blust, he and his wife rebuffed Lamar’s offer to plant a sign on land they owned in the Dayton suburb of Beavercreek.

A neighbor proved more obliging, and the billboard went up there. But it turned out that the Blusts’ trees were in the way. They lived a few miles from the property, and did not learn of the destruction of their woodland until alerted by a cousin.

Blust told FairWarning that he sought compensation, and “If they had sent me $3,000, it would have been all over.” But a Lamar executive “laughed at me over the phone from Baton Rouge, Louisiana,” said Blust, who then decided to sue.

A jury awarded the Blusts more than $2.2 million in punitive damages. Appeals dragged the marathon case into 2009, when an appeals court ruling led to Lamar paying damages and attorney fees.

“In that case, our contractor made a mistake,” Kilshaw said, “and simply went across a property line, and we ultimately paid on that.”

For his part, Blust, 76, said he was “satisfied that I caused them pain. Did we make a lasting impression on the management of Lamar? If they’re still cutting down trees, I guess we didn’t.”

What is unusual about these episodes is that someone got caught. More often, over the years, the culprits remained unknown or were not aggressively pursued by authorities.

For example, a 1985 report by the General Accounting Office cited dozens of incidents in Georgia of illegal tree cutters acting with impunity, including a case in which about 500 trees were poisoned near three signs along interstate highways.

In Louisiana, said the GAO, “over 2,000 feet of vegetation and trees were cut and cleared to enhance the visibility of two signs. We counted over 900 stumps from destroyed trees at this site.”

In a 1996 deposition, a former billboard company tree trimmer testified that he had cut down and poisoned trees in the Los Angeles area for many years, usually without the owners’ consent. The former employee, Fred Jackson, worked until the late 1980s for two large billboard companies, Foster & Kleiser and Patrick Media, that eventually merged and were absorbed by Clear Channel Outdoor.

Jackson said he occasionally was confronted about what he was doing, and would make up a lie. It might be “‘I’m working for the Edison Company,’” Jackson testified. “That was a great one.”

More recently, illegal tree clearing near billboards and “supergraphics’’—giant ads draped on buildings—has been a problem in Southern California, said Dan Freeman, an official with the state Department of Transportation, or Caltrans.

“The billboard industry—well, my impression of them is they’re kind of lawless,” said Freeman, Caltrans’ deputy director of maintenance for Los Angeles and Ventura counties. “They pretty much do whatever they want.”

“We’ve been victim a number of times to people who come in the middle of the night, with a chainsaw, and just kind of clear cut the area immediately in front of one of these supergraphics or a large billboard,” Freeman told FairWarning.

“And, of course, we call them [the sign company], and they say, ‘We have no idea who could have done it. My, what a terrible thing.’ They don’t own up to it. We have had a very, very difficult time in getting traction on prosecuting them.”

The Right To Be Seen

Billboard companies have sometimes claimed an inherent right to have unimpaired views of their signs. If revenues go down because of public trees, they have argued, public agencies should pay damages. This has been a hard sell.

For example, a Tennessee appeals court rejected an industry lawsuit against the state department of transportation over its failure to maintain unrestricted views of roadside signs.

“It is true that wild vegetation, as well as that planted by the State, has and will have a normal tendency to grow taller,” said the 1979 ruling. “Plaintiffs seem to insist that the licensing of a billboard confers some special right of visibility or imposes some special duty upon the State to maintain visibility of the licensed billboard. No authority has been cited or found to sustain this novel theory.”

In 2006, the California Supreme Court rejected claims of billboard operator Regency Outdoor, which had sued the city of Los Angeles, claiming it lowered the value of its signs by planting palm trees for a beautification project.

“The right to be seen from a public way…simply does not exist,” the Supreme Court ruled. “Regency cannot claim unfair surprise from the plantings. Local governments have long planted trees along roads for aesthetic reasons, to lessen the burdens of climate, and for other salubrious purposes.”

So the industry has turned to state legislatures to establish the right to be seen. Under laws or regulations of most states, billboard operators can legally cut back trees and other vegetation along state and federal highways. Typically, they must pay for a permit, file a work plan, and either replant or pay for lost trees.

The Outdoor Advertising Assn. of America failed to respond to interview requests, but in an email described vegetation control as “a common, longstanding practice along roadways for the sake of safety and visibility.”

Once state rules are in place, billboard companies often lobby state legislatures to relax restrictions and expand the freedom to cut. In the past year, for example, the industry pushed through such changes in Georgia, North Carolina and Wisconsin.

In Georgia billboard companies won more freedom to clear trees, though the new law is tied up in a court challenge. The industry’s legislative success followed years of cultivating lawmakers. From 2001 through 2010, billboard owners and the Outdoor Advertising Association of Georgia contributed at least $467,522 to candidates for state office, according to a report by the advocacy group Scenic Georgia.

The Outdoor Advertising Association also did some wining and dining, last year hosting 34 Georgia legislators and two board members of the state Department of Transportation at a golf outing at the Reynolds Plantation resort, according to The Atlanta Journal-Constitution.

A Georgia Department of Transportation spokeswoman said that in the past five years, the agency has completed investigations into 20 complaints of illegal tree cutting, and collected about $203,000 in compensation.

In North Carolina, the industry-backed law passed last July expanded the cutting area to up to 380 feet on each side of billboards—up from 250 feet before. This translates into extra viewing time of 1.5 seconds for motorists approaching billboards at 60 mph. State transportation officials estimated that up to 200,000 trees could be removed in the next five years as a result.

From 2005 through June, 2011, billboard interests donated at least $206,000 to state legislative and gubernatorial candidates in North Carolina, according to a report by the nonprofit group Democracy North Carolina, and research by FairWarning.

“They’ve got a lot of money, and it’s amazing how cheaply legislators can be bought,” said North Carolina resident Charles Floyd, a retired University of Georgia business professor who has written extensively about the billboard industry and is critical of the new law.

Even in states like North Carolina that provide a legal means to enhance billboard views, incidents of illegal cutting and poisoning still occur. In some respects, loosening restrictions is the path of least resistance, reducing the number of violations and need for enforcement.

“If you legalize vandalism,’’ Floyd complained, “that helps out a lot.’’

Poisoned trees near North Carolina billboard site in 2006. Courtesy of the North Carolina Department of Transportation.

Since July, 2006, the North Carolina Department of Transportation recorded 88 incidents of illegal tree removal near billboards, according to agency data reviewed by FairWarning.

The cost to the state was $923,000 under a formula based on the size of lost trees. Of that amount, records show, the state was able to collect only about $39,000. Without admitting liability, Lamar paid $18,487.50 to settle one of the cases.

 Criminal Probe in Florida

Soon after Barnhart filed his whistleblower suit in federal court in Tallahassee, he led state agriculture officials to an oak tree he claimed he had poisoned next to a CVS pharmacy in Tallahassee. When the lab results came back in October, they revealed a herbicide, Triclopyr, in soil and vegetation samples.

He told officials it was one of seven to 10 trees he had illegally poisoned since 2009. Sometimes, he said, he used a machete before pouring in the poison, other times drilled holes in a tree, and on still other occasions he simply cut them.

Barnhart has been granted immunity by Leon County State Attorney Willie Meggs. Asked to comment on the criminal probe, Meggs said his office is continuing to gather information.

In a deposition taken in the whistleblower case, Chris Oaks, Barnhart’s supervisor, confirmed Barnhart’s account. Oaks admitted to poisoning trees himself under orders from his boss, LaBorde.

Oaks, 35, claimed he initially balked, saying he thought Lamar must first get permits.

“And he (LaBorde) told me, he said to just jump over the fence and do what needs to be done and kick a little dirt over it,” Oaks testified, “and if you don’t know how to do that, I’ll take out my gun and I’ll shoot you in the head.”

Oaks figured LaBorde was joking. But “I felt then that I needed to do what the man was telling me for fear—not for death, I didn’t really think he would kill me, but I did feel like it was threatening to my job,” Oaks said.

“I just want to get it clear that none of this was me,” Oaks said. “I did not want to do any of this.”

Barnhart said fear of getting caught on a surveillance camera and, according to his lawyer, pressure from his wife led him to come forward. Barnhart said that after suffering a back injury and going on light duty, he told managers that he would no longer poison trees when he came back. In August, he says, he was fired.

Lamar contends it never fired Barnhart. The company’s response is less clear cut on the other alleged violations, such as criminal mischief and illegal handling of poisons.

“Any act or omission by Lamar was done in good faith,” the company said in court papers. “To the extent that the actions of any Lamar employee were, in fact, in violation…, those actions directly violated Lamar’s corporate policies and procedures and were, thus, beyond the course and scope of their employment.”

FairWarning (www.fairwarning.org) is a nonprofit, online investigative news organization focused on safety and health issues.

Support for this story came from the Fund for Investigative Journalism (www.fij.org).

 

 

 

TD Bank accused of altering evidence by victim of Scott Rothstein’s Ponzi scheme

By Brian Kindle, Special to BrowardBulldog.org

Rothstein, Rosenfeldt & Adler publicity photo

TD Bank lost a $67 million jury verdict in January in a case related to the notorious Fort Lauderdale lawyer and swindler Scott Rothstein. Now, the Canadian-owned bank is accused of withholding evidence during the 70-day trial.

Coquina Investments, one of hundreds of reported victims of Rothstein’s $1.2 billion Ponzi scheme, has filed court papers in the case it won accusing TD Bank of “altering” its internal assessment that Rothstein’s law firm was a “high risk” for money laundering.  Keeping that secret could have shielded the bank from further liability.

Coquina, based in Corpus Christi, Texas, has asked the court to sanction the bank.

Coquina’s successful lawsuit argued the bank aided and abetted the enormous fraud. Rothstein testified in a December deposition that bankers were key to his scheme, and that he paid off TD Bank’s regional vice president, Frank Spinosa, according to the Sun-Sentinel.

Rothstein, who once lived a flashy lifestyle and hobnobbed with politicians, is currently serving 50 years in prison.

The alleged evidence of TD Bank’s duplicity at trial are 2009 “Customer Due Diligence” forms for Rothstein, Rosenfeldt and Adler. Such forms are used to evaluate the risk involved in dealings with customers and assessments.

Lawyers for Coquina assert the bank removed the warning “HIGH RISK” from the form and changed its coloring from red to black when presenting the evidence in court. At trial, the bank produced a money-laundering expert who stated that Rothstein’s firm was not a high risk, according to post-verdict court filings made late last month.

Coquina’s lawyers call that a “fraud on the court and jury” by TD Bank.

TD Bank acknowledged a mistake in its own court filings last week, but said it was a “copying error” by clerical staff that did not hurt the plaintiff’s case. It has apologized. The bank also said Coquina’s lawyers knew of the gaffe and referred to it in their closing arguments to the jury.

TD Bank declined requests for comment by ACFCS.org, citing its policy of not commenting on “pending litigation.”

FRAUD OR MISTAKE?

Coquina’s Miami lawyer David Mandel, a former federal prosecutor, filed court papers this week asserting the “the trial would have proceeded much differently had the defendant produced the true document.” Coquina’s $67 million verdict included $35 million in punitive damages. Mandel had asked the jury to award $140 million in punitive damages.

The jury may have awarded higher damages, Mandel argued, adding that the altered document affected cross-examinations.

TD Bank’s response did not address the testimony of their witness, money-laundering expert Ivan Garces.

Garces testified that the bank did not consider Rothstein, Rosenfeldt and Adler high risk.

“It’s your opinion, sir, that TD Bank did not consider RRA [Rothstein’s law firm] to be a high-risk customer of the bank; is that right?” a Coquina lawyer asked Garces on the stand.

Yes, ma’am. That’s correct” Garces replied.

Mandel has asked US District Court Judge Marcia G. Cooke to sanction TD Bank, and refer the matter to the US Department of Justice for possible criminal investigation. Federal law makes it a crime to intentionally alter a document for use in a trial.

Brian Kindle is editorial director for ACFCS.ORG, the Association of Certified Financial Crime Specialists, an independent research and information organization based in Miami whose members are financial crime experts in the public and private sector.

Another black eye – Hallandale loses $75,000 in taxpayer money in botched business loan

By William Gjebre, BrowardBulldog.org

A firm that obtained a $75,000 business development loan from Hallandale Beach without signing a repayment agreement or providing collateral has defaulted, leaving the city unable to recover nearly all of the taxpayer-supplied money.

The loan default by Digital Outernet Inc. (DOI), headed by a Californian with past ties to the pornography industry and a local businessman who has since died, is the latest snafu to surface in the operations of the city’s Community Redevelopment Agency (CRA).

News of the soured loan comes as the Broward Inspector General’s Office opened an investigation last week into the city’s management practices, including those at the CRA, whose director are the five city commissioners.

“I was against it from day one; we are not in business to lose money,” said City Commissioner Keith London, who cast the lone vote opposing the loan three years ago. “It was never a sustainable, viable initiative.”

Commissioners approved the taxpayer loan in their capacity as CRA board members.

Digital Outernet was incorporated in November 2008. Four months later, it got the loan to buy equipment and materials. The plan it sold the city on: to setup television screens in local businesses and condominiums and sell advertising while also airing city and other information, such as job ads

CONTROVERSIAL HANDOUTS

The corporate loan was made during a time when the city was making numerous loans to local businesses, some controversial.

In 2009, the city administration also approved a $50,000 loan for a weekly newspaper, The Sun Times, forgiving half the loan ($25,000), even though two top executives earned $200,000 annually two years before the loan. Mayor Joy Cooper is a featured columnist.

The same year, the city erroneously forgave an extra $7,500 on a property improvement loan that Commissioner Anthony Sanders obtained before he was a commissioner. As a result, Sanders’ non-profit Higher Vision Ministries did not repay $15,000 on a $46,000 loan for property improvements at 501 N.W. First Ave. The city then brought the property for $235,000, even though the church only paid $45,000 for it in 2001.

Digital Outernet’s chief officials were local businessman John Hardwick and Steve Fecske, a Californian, according to state corporate and city files.

When the loan was approved, the Sun-Sentinel reported at the time, Fecske told Hallandale Beach commissioners he had been involved with a company that provided technology services to porn-connected websites, one of which featured star Jenna Jameson. He assured commissioners his pornography work was in the past.

Fecske is listed on LinkedIn, the professional networking web sit , where he is described as an “independent information technology and services professional.” He is currently associated with McKenzie & Co., Forensic CPAs in Los Angeles. He was president of Digital Outernet, Inc. from 2007-2010.

Fecske could not be reached for comment.

LOAN RECIPIENT OUT OF BUSINESS

On the current Florida Department of State Division of Corporations web site, Digital Outernet is listed as inactive.

While approved for a $125,000 loan, Digital Outernet only received $75,000. It had to meet certain city-imposed conditions to get the rest, but apparently did not do so.

However, one loan requirement was waived by the city: that the firm had to own its place of business; it was leasing. The loan also provided for 15 percent ($11,250) forgiveness, with the balance to be repaid at 4 percent (interest rate) over 10 years.

City records show it wasn’t long after funds were distributed that problems at Digital Outernet became apparent.

In June, 2010, the city sent a letter to Hardwick and Fecske denying their request for the additional $50,000. The letter pointed out the firm had missed its first two quarterly loan payments of $2,284 each, failed to sign a loan promissory note, and did not provide required financial reports and details on employee hires.

A month later, the city sent a similar letter.

CRA director Alvin Jackson said he met with Hardwick shortly after he became director of the CRA in January 2011, reminding him about the loan repayments and the documents and reports that needed to be filed with the city.

But state corporate records show that by then, the company had ceased to exist as a legal entity.

HARD TO TELL WHAT HAPPENED

Available city records do not explain what happened to Digital Outernet and the city’s $75,000. A recent report by an auditing firm criticized the CRA for failing to properly track loans and property acquisitions.

Jackson said the company made only one installment payment of $2,284 in July, 2010, adding that the firm appeared to go out of business with the death of Hardwick.

A member of the Hallandale Beach Chamber of Commerce, Hardwick, 41, suffered a stroke and died at Hollywood’s Memorial Hospital on May 22, 2011. Prior to becoming involved with Digital Outernet, Hardwick ran a barbershop/salon at 708 Foster Road in the city, the same location listed for DOI.

Jackson said the DOI file was sent to the City Attorney’s office for review and follow-up action. He said he was told that an investigator was sent to the Foster Road address to identify possible assets but none have been recovered, so far.

Jackson said he believed that Digital Outernet may have actually placed several television screens in local businesses, but he did not know for certain. The city file contained no information on the placement of the video screens.

The city “never got the balance” of the loan, Jackson added.

Broward Bulldog reviewed the city’s file. It makes no mention of Hardwick’s death and gives no indication that the city was trying to follow up by reaching Fecske in California.

The file also did not indicate what, if anything, the city attorney’s office did in the matter. There were no reports by the city attorney’s staff in the DOI file.

Local realtor Joe Kessel is listed as an official of DOI in one document in the city’s file. He said in an interview that he was “not involved” with the company and had long ago asked that his name be removed as a DOI associate. Kessel declined further comment.

Mike Good was the city manager at the time of the loan. The file contains a letter he wrote endorsing the DOI project. “The city supports the concept and advertising model offered by Digital Outernet, Inc., and seeks the support from our local business community as well,” Good wrote in his letter in December 2008.

Good, who was fired in June 2010, could not be reached for comment.

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