Hanging Spalls

Jun 29, 2021

Florida’s vocabulary gifts:

chad, as in “hanging chad” spall (v.)

Any others?

#English #Florida #spalling

Champlain Towers Analysis

Jun 28, 2021

There’s a lot being written about the Champlain Towers collapse, but perhaps, as a former owner of a beach-side unit just twenty blocks south and as a lawyer with some experience as both an owner and with Florida law, my thoughts might be a little more than just informed speculation. Or not.

Bankruptcy

The developer died seven years ago and his company was dissolved shortly thereafter. Because of the age of the building, decennial liability is no longer an issue. There has already been one lawsuit filed and many more are rumored to be on the way. What do you call a lawsuit against someone with no assets? A waste of time.

The homeowners’ association owns the common areas of the building; the unit owners hold their individual units. The value of all the remaining condominiums just went to zero. The destroyed condominiums don’t exist any more. The sister buildings are not part of the HOA; except for safety issues, they might as well not exist. The HOA thus has no assets; their only reasonable move is to file for bankruptcy. This halts all litigation; the bankruptcy court appoints a trustee, just like with Eastern Airlines or Bernard Madoff Investments, and looks for any assets to cover debts. But he won’t find much, because…

Demolition

The remaining portion of the Champlain Towers will be condemned and torn down. There probably is a way to rebuild the building and make it safe as long as the collapse was not due to saltwater intrusion or shifting soil. We already know that the building was sinking at the rate of 2 mm per year. The repairs to the building to make it safe before the collapse came in at 9 million; now the bill will be much, much higher.

It will be months before a building permit is issued if that is the direction the HOA wants to go but more importantly, who will pay? The HOA just lost at least half of its “taxpayers,” there are fewer owners remaining on whom to place an assessment. I would also guess that at least some members of the board are dead; there will have to be a new election; there is probably nothing in the condo association agreement to cover a situation like this.

That is another reason why it bankruptcy is important; the trustee can decide whether it is commercially viable to restore or demolish the remaining structure. The risk of certifying the existing building and the land on which it sits as safe is so great that I doubt the city/county would do it and even if they did, no one will insure the building now. The remaining residents–all of whom who will have to move out–will try to get State of Florida assistance but that will take months and there is little legal basis to help them unless the State decides to underwrite building collapses generally.

Insurance

My instincts tell me that there was no insurance for this kind of event, but I have reached out to an insurance professional for confirmation.

AirBnB

Officially, the building had a rule against AirBnB’s. My first thought was how many AirBnB’s were being rented out at this location? AirBnB’s are against Miami/Miami Beach ordinances but the South Florida market remains AirBnB’s fifth largest market globally. So someone is finding AirBnB rentals.

Even if the HOA had prohibited AirBnB’s, this is very difficult to police. I read article after article discussing the unaccounted for people, how they were “visiting a friend,” how they were “vacationing,” even how they had come to Miami to get vaccinated.

“Staying with a friend” is what AirBnB hosts tell their guests to say to avoid these rules. Other than the usual complaints against AirBnB, it is significant here because the last thing absentee owners running irregular mini-hotel businesses want is added expense. Having to replace towels is bad enough, but a special assessment can kill profits. Owners can and will do anything to postpone such assessments; it gives them a chance to avoid those fees by selling the unit and buying somewhere else. It also means that that you will have a group of owners who will vote against any and all improvements. Even though AirBnB’s are prohibited now, it is not clear at all whether they were prohibited in 2018, the year that significant structural damage was uncovered.

The 2018 Inspection

In 2018, structural engineers inspected the Champlain Towers and wrote a report which contained a word that, like “hanging chad,” Florida has now given to the world. The word is of course, “spalling” which refers to chunks of concrete not just cracking, but falling off the building. They found a good deal of spalling, rusting rebar and recommended urgent repairs to the tune of 9 million dollars. The City of Surfside’s inspectors praised the HOA for starting the 40-year building recertification process three years early.

Except for three years nothing happened. Maybe because the Board voted against it, or the AirBnB owners voted against it: at this point we don’t know. At some point this year, however, the HOA proposed making structural repairs but added 6 million dollars’ worth of non-essential, aesthetic improvements–condo boards in Florida tend to do that. There were probably more arguments about those non-essential improvements than the rusting rebar. A special assessment was voted and was based on the size of individual units. The special assessment ranged from a low of $80,000 to a high of $300,000. We know that the funds had not been collected since one of the surviving unit owners said that he had canceled his loan application.

The 2018 Inspection: Secret?

The Becker Law Firm (formerly Becker & Poliakoff) has a large condominium practice in South Florida and represents many homeowners’ associations. The 2018 report was delivered not to individual unit holders, but was prepared for the HOA itself. The HOA is a separate legal entity apart from the homeowners. At least some of the homeowners had from time to time sued the HOA, though none had sued to force the HOA to implement the critically needed repairs. Why didn’t anyone in this litigation-happy building sue? There can only be one reason: they didn’t know.

Why do I think that the HOA’s lawyers told the HOA that they had no obligation to disclose the report to the individual owners? At some point, we may find out, but I think it is likely the Becker Law Firm has already given notice to its own malpractice carrier. I think it is likely that no unit owner sued the HOA because they didn’t know about the inspection.

The Three Year Wait

Why the three year wait? With unit holders, whether absentee AirBnB owners or not, voting against special assessments, maybe condo management realized that they would never get a 9 million dollar special assessment approved. But with the 40=year recertification just around the corner, it would be relatively easy to style the required repairs as part of the 40-year process and win approval that way. I admit that this is speculation on my part, but otherwise, why the wait?

Mortgage Liability

While some unit owners may have paid cash for their units, most took out mortgages. If they did not have mortgage insurance, the mortgage debt persists despite the destruction of the underlying property. This may send a few owners into bankruptcy court as well.

Political Pressure

There are high rises on both sides of Collins Avenue stretching from the county line all the way to South Beach. My condo was twenty blocks south at 6767 Collins. There will be enormous political pressure on the investigators to find that the cause of the collapse was peculiar to that particular piece of land and not general in nature. If general in nature, like rising water levels, the property values of those buildings on the east side of Collins Avenue have just dropped precipitously. Those who have renewable umbrella insurance policies will be happy, but my guess is that not everyone does. I know I didn’t.

The Future

How this will all play out is anyone’s guess. What was prime South Florida real estate all of a sudden became much less attractive. Lots of owners will be unable to pay new special assessments and will seek to sell their units, creating a glut on the market and a drop in property values. But it’s South Florida: there are always a few who believe that even when undercapitalized they can fix things “for now” and squeak by. The bankruptcy trustee will probably find a developer who is willing to wait a few years, figuring that when all the excitement quiets down a few strategic political campaign donations will make pulling a new construction permit a possibility. People will forget about these victims because there will be new catastrophes and new victims. Nothing in South Florida is permanent. Even apartment buildings collapse.

Trapped?

Jun 22, 2021

Trapped in debris? Earthquake? Avalanche? Collapsed building?

Or just visiting an Associated Press or Al Jazeera office?

If so, keep these tips in mind:

Criminal Justice System is Arbitrary and Capricious

Jun 21, 2021

The US criminal justice system is arbitrary and capricious.

Sammy got 5 years for 19 murders.

How many are on death row for less?

#warondrugs #criminaljustice

Schooling for Seniors

Jun 6, 2021

I was sitting around with my roommates a few years ago and the subject of retirement came up, as did the subject of finding low rent accommodation. I recounted an experience I had trying to find low-cost housing in Los Angeles in the summer. College dorms and fraternity houses were desperate to rent to those who would only stay for the summer, but you needed an .edu email address. This is not impossible, but neither is it trivial. Inspired by thoughts of Rodney Dangerfield’s Back to School, I tried to get in touch with frat houses at UCLA and USC. Despite my best efforts, I was unable to reach any of them (a Vonage line would have helped).

Before the days of the Internet, I used to have a “how to” manual with listings of universities that rented out college dorms in the summer. I used the book to secure housing while studying and taking the Louisiana Bar Exam. I no longer remember the name of the book. Pity. It was a good idea.

Somehow the two ideas merged: back to school and free or near-free rent. The dark clouds parted and rays from the heavens illuminated my surroundings. I heard the choir of angels sing.

For years my aunt lived in Champaign, Illinois, the home of the University of Illinois, a mere three hours by car south of Chicago. State money flows into the crown jewel of the Illinois educational system. The University has world class, well-funded medical and recreational facilities. The former are underused by the student body. If you take hangovers and sexually transmitted diseases out of the equation, young people are generally healthy. At the medical school, those seeking to specialize in gerontology would be happy to have me as there are slim pickings in the potential patient pool amongst the undergraduate student body.

There’s a world class library and regular speakers and classes on every conceivable subject. There’s a music school and regular concerts. Why not enroll and get access to all those delightful benefits and student housing too? OK, so they’d put you in graduate student housing—so what? Staying at a fraternity is probably out of the question, though you never know. They might rush a sixty-year old just for the novelty of it. Free of worries about grades, my main concern would be the menus at the student cafeteria and the location of the next wine and cheese event.

There’s no reason to be lonely at a university: due to your age your fellow students will initially see you as an oddity before the crafty ones figure out that having an older friend may sometimes open doors that would otherwise be shut, especially in a country where age is a requirement to purchase alcohol. Every new class means new friends and contacts.

Don’t be afraid of showing up at any university event; by law and policy, they are open to all. There are three classes of older people commonly found on a university campus: professors, parents and boosters. People will automatically assume that you fall into one of these categories; no one will risk offense by turning you away.

Taken by the idea, my friend Roberto found that there are countries in Western Europe where tuition is free, housing is cheap, medical care is free and class instruction is given in English. Maybe Slovakia is not at the top of your education list, but it should be. “But I already have a degree,” you whine. Don’t you get it? Who cares? You can spend the next two decades sampling the educational wares of Western Europe and you won’t finish.

But having been away from it for so long, the idea of my home country—not the reality of it, the idea of it—was attractive so I looked close to what had been for many years, home.

I semi-seriously looked at real estate in Champaign; if I could find a two story building I could set up a law office on the first floor while living on the second, a nearly rent-free, or at least subsidized rental environment (it is not easy for me to hide my obsessions). I could give new meaning to the phrase “student lawyer.” For this to be successful, I would need a federal courthouse and preferably, a state appellate courthouse. With an ABA-approved law library and free Lexis available to students, a genteel appellate practice writing briefs with the occasional court appearance would be one possible pastime.

With a gut growing from all-too-frequent attendance at wine and cheese gatherings, I would discreetly encourage my classmates to take advantage of all educational opportunities open to them—especially those that offered free food. In exchange, all I would want is a heads-up on any event with a free buffet. Why be one of those seniors lining up for the early bird special, stuffing sachets of Sweet ’n Low into your purse when you can feed in style in the halls of academe—and with little or no cash outlay? Once the faculty realized that I posed no threat and was merely along for the ride of free booze and victuals they would leave me alone and treat me as just an eccentric old crank, which is fine with me.

If forced to declare a major, I would choose an impossibly difficult dead language, one that would take me years to master. I might not live so long. Nevertheless, each year I would dutifully sign up for Akkadian 101 and not let my repeated failures get me down. I would stay away from those classes where a professor might try to pass me to get rid of me. The university administration might try to discourage me by scheduling Akkadian at the ungodly hour of 8:30 in the morning, not realizing that I had no intention of attending at any hour. Class is not a realistic option so early in the morning. At 8:30 I’m dressed in a bathrobe—if expecting guests—and working on my morning coffee, sweetened with a tablespoon of Kentucky bourbon.

“Failure” would be my mantra, my shield against old age. If after repeated failures, I would simply switch to another impossibly-difficult language. My prior failures would constitute eloquent proof that a change of major was needed. If, God forbid, I were to come close to meeting the requirements for graduation and thus expulsion from this Garden of Eden, I’d quickly find a new course of study where none of my classes would qualify. Fine with me. Though realistically, studying and sitting for examinations is not on my agenda so I do not see how this could happen.

Once a quarter I’d take my Social Security check and throw a boozy “homecoming” party for older students, inviting everyone to the law office backyard where I’d set up a bbq smoker and enlist the interns who worked for me as waiters and waitresses—no empty plates allowed. I would make it known that anyone could attend, older student or not. The first few events would be sparsely attended until word got out about the free beer and bbq.

I’d hire an undergraduate band to play at the event—they’d be happy for the gig. I’d schedule around major sporting events lest parents attend, see what a cushy life I’d got going and decide to enroll themselves.

Sounds a lot better than a retirement home, Century City or Boynton Beach. Almost all American States have a university town and many charge little tuition to non-degree-seeking seniors. Some States have more than one. Slovakia remains an option. Besides Champaign, there’s Tallahassee, Florida (Go Seminoles!); Austin, Texas; Oxford, Mississippi and Baton Rouge, Louisiana. All have been on my radar.

Boulder, Colorado and the home of Southern Illinois University at Carbondale are also of interest. Carbondale has the reputation of being a “party” school. For some this would be a negative but not me. The town has the added benefit of being the seat of the federal district court for the Southern District of Illinois. It’s so far south that winters are rarely harsh, almost tropical compared to Chicago.

I’ll have to investigate it more thoroughly.

Why Don’t Jurors Get Ballots?

Jun 5, 2021

It occurs to me that jurors are left to their own devices when it comes to voting ballots on an indictment. Don’t think that it is merely a question of voting “guilty/not guilty” either; modern indictments contain multiple counts and multiple defendants. There is a verdict form on which the results of the balloting can be recorded, but uniform, anonymous ballots to record individual votes are not provided.

Let’s take a somewhat typical federal case involving three defendants and three counts each. That’s one hundred and eight decisions to be expressed on 54 ballots, assuming twelve jurors and a guilty/not guilty ballot for each of the three counts.

Jurors are not told how to accomplish their voting and have no special skills. With so many decisions to make, the temptation to call for a mere “show of hands” and the peer pressure that obtains, great. Balloting should be personal and anonymous.

Maybe they should be given voting machines.

Bahrain on UK’s Redlist

Jun 5, 2021

With all the discussion about the removal of Portugal from the UK travel bubble, few saw that Bahrain was added to the UK redlist. This means that travelers to the UK from Bahrain will have to spend ten days in government approved quarantine.

So much for transit business.

Assange

Jun 4, 2021

If the NY Times and the rest of the Western MSM got behind Assange, that would be the end of it. They haven’t, forgetting that Assange’s fate is theirs.

The Worth Avenue Gang

May 28, 2021

Jennifer’s downfall was her fine taste in clothes. Not satisfied with shopping at Target or Marshal’s—two places she wouldn’t be caught dead in—she preferred haute couture boutiques on Worth Avenue in Palm Beach. Shopping in West Palm was out of the question. Unfortunately, she did not have the cash to support her taste in fine clothes. She organized a gang consisting of similarly-situated women who decided that the best way to obtain the objects of their desire was simply to steal them.

Jennifer’s gang was short on subtlety. Smash and grab was noisy, but effective. To be successful, the gang had to scout out the stores to make sure that they not only had the latest fall season fashions, but that they had them in the right sizes. Jennifer and her gang had no interest in fencing the stolen merchandise, they intended to wear them. Jennifer visited the targeted stores with a list of the gang member sizes in her head. Matching shoes were always a problem for these women liked and knew how to accessorize.

Jennifer’s long, dirty-blonde hair was easy to spot on the surveillance tapes. Jennifer had assumed that no one would notice her. When you buy an expensive designer dress, you want to be seen. Jennifer assumed that people would remember the dress she stole when she somehow conned her way into a Palm Beach charity event. She was happy to pose for the photographers, and the bouncers assumed that a woman wearing an expensive dress had to be someone’s wife, girlfriend or mistress. Too-deep inquiries might spoil the chances of a substantial donation. But when the photographs were published the next day in the Shiny Sheet, that is, the Palm Beach Post, the only newspaper in the country printed using special ink and white paper formulated not to smear even if you were wearing white gloves, the shop owner who had already filed the insurance claim and had the windows replaced recognized not so much Jennifer, but the stolen dress. The shop’s broken glass had already been replaced by the time the Post published, for the idea of a boarded-up shop on Worth Avenue during the Season was simply inconceivable.

The shop owner’s call to the police was law enforcement’s big break—they had been chasing Jennifer’s gang for some time. Jennifer had been casing a store when she decided to make a purchase using a stolen credit card. Jennifer ran out of the store grabbing the colorful bag containing the carefully packed dress; shouting on her way out that there must be some problem with the bank. She was last seen heading down Worth Avenue towards the Everglades Club.

The Palm Beach rich are known for being eccentric and money can make problems disappear. The shop clerk had assumed that Jennifer was the wife, mistress or girlfriend of someone on the island, perhaps someone powerful; Jennifer had left a credit card after all. The fact that the card was in someone else’s name was insignificant; the mistresses, girlfriends and wives of the wealthy often preferred this form of payment. If the card was declined—usually the partner’s own way of seeking attention—he would later discreetly visit the store and satisfy any outstanding obligation. But no one came later, and the store’s owner filed a claim with the police.

Unfortunately for Jennifer, the dress had a retail value of five thousand dollars and since she had used, or tried to use, a credit card for the purchase, this put the fraud—a word not often heard on the island— within the jurisdiction of the United States Secret Service, who in addition to protecting presidents and foreign leaders and investigating counterfeiters, also had primary federal jurisdiction over the misuse of “access devices”—in the language of the law, credit cards—making Jennifer’s crime a federal one.

Jennifer’s picture in the Post matched her picture taken by the security cameras. They only had to start surveilling charity events on the island and in a short time Jennifer was picked up by agents who stood out so much from the real party-goers that they were asked to remain outside, special agent credentials or not. Wearing the same dress twice in a row is a Palm Beach faux pas, but as Jennifer scanned her closet the night of her arrest, she was faced with that dilemma that kept the Worth Avenue shops open in the first place: she had nothing to wear.

As they put the handcuffs on her already-braceleted wrists, Jennifer loudly proclaimed that there had been a mistake, that her boyfriend had purchased the dress, that she was a regular customer of the store, that this was a mistake, an outrage, really. In the car on the ride to the Palm Beach county jail, Jennifer stopped her protests. At the jail two female officers took Jennifer into custody on the federal warrant that the Service had previously prepared. Stopping for a coffee in the waiting room on their way out, the agents were prevented from leaving by the duty officer who said that there was a problem with their prisoner, that Palm Beach sheriff’s couldn’t receive the arrestee in the jail. The agents had to wait.

A loud buzzer signaled the opening of the thick metal door that separated the free from the restrained. Jennifer was marched through the door, still in handcuffs and accompanied by the same two female Palm Beach sheriff’s deputies, who informed the federal special agents that they couldn’t take Jennifer.

“Why not?” one of the federal special agents asked. “We only take female federal prisoners,” one of the deputies answered.

The federal special agents looked at Jennifer, realizing finally that she had been born a man.

On the long drive to MCC-Miami, the federal special agents read Jennifer the Miranda warnings. “Cooperating with us will go a long way with the judge,” they told her. Jennifer was frightened and responded in haste, hoping that this would somehow convince the agents to let her go. Just after passing through the Golden Glades interchange, Jennifer gave up the other members of her crew—why should she get in trouble for couture worn by others?

\ \ \ \ \ \ \ \ \ \ ❉ ❉ ❉

I represented a member of Jennifer’s crew who predictably claimed his innocence and blamed everything on Jennifer. “She never even got me the right size,” he moaned, ignoring for the moment that this complaint was inconsistent with protests of innocence. He was also jealous of Jennifer, who had made many new friends in the institution and despite the vulgarity of the standard-issue brown prison uniform, had made it somewhat fashionable by tying shirttails into a bow in order to show off a bare midriff. The guards didn’t know what to do with her. The prosecutors didn’t know what to do with Jennifer and her crew either. It was difficult to predict how a district judge would rule in such an out of the ordinary case; a case that at its heart was merely aggravated shoplifting and an effort to get attention. A trial, they realized, would only give Jennifer what she wanted: a chance to glam up and even more attention.

The Shiny Sheet was following the case closely and the Ft. Lauderdale Sun-Sentinel was devoting its cheaper newsprint to the story. Roxanne Pulitzer’s sensational divorce trial had turned the Palm Beach county courthouse into a media circus; no one wanted a repeat. Turning Jennifer into a public figure was not the goal of a federal criminal trial; complicating the case, despite the obvious lack of a defense, were the rumors about the identity of Jennifer’s boyfriend, who, it was claimed, had the bad taste to dump her just as the Palm Beach Season was starting. No one knew how the rumors started or even if there was a boyfriend, but the rumors grew anyway in the retelling with detail upon detail. Jennifer’s boyfriend had supposedly thrown her out with just the clothes on her back; he was cheating on her and wanted a new girlfriend; he was already living with another woman. Sure, the boutiques had been harmed but the real victim was Jennifer.

Jennifer might well find jurors sympathetic to her cause. Shoplifting is not uncommon among even the finest families on the island which, truth be told, had seen much worse. Since the trial was to be held in the division of the federal court in Palm Beach county, there would be jurors who understood the horror of being snubbed and not having appropriate clothing for an event. Acquittal was unlikely but nevertheless a real possibility.

The prosecutors solved this stubborn problem with a group plea. Jennifer and her crew would plead guilty; there would be a small fine and restitution would be ordered. Since Jennifer did not have any cash to pay a fine, the return of the lightly-worn outfits would satisfy that requirement. There would be a two year period of supervised release during which Jennifer was prohibited from returning to any of the stores she robbed.

This latter requirement proved to be a problem, for Palm Beach is forgiving and loves nothing more than the smoke of scandal and especially where no one is hurt. A year later, after getting the Probation Office’s permission to travel to Aspen for the winter, Jennifer was back on the island. One of the stores wanted to hire her to promote their fall line and technically this would be a probation violation. At least until her notoriety started to fade, Jennifer even started to receive legitimate invitations from charity pre-events once the sponsors realized her presence attracted donors who wanted to see what all the commotion was about. 

My client was happy to get probation and the opportunity to get out of town. For him that was enough.

Vaccination Passport *Fauda*

May 24, 2021

My vaccination is linked to my Bahraini resident’s permit number (CPR). Unfortunately, that permit has expired, though I am still in the country under another visa. A residency permit has nothing to do with the state of my health. Indeed, I could be an illegal alien and healthy, or a native-born subject of the King, suffering from the disease.

Because my residency permit has expired, I cannot prove my health status. Because I cannot prove my health status, I am barred from entering commercial establishments easily. Since my case is an edge case (like someone without a last name, everyone has a last name, right?) I have to pull out the paper vaccination passport and then explain to the guard—who is usually from Nepal—why the App is not working in my case. Hopefully he will let me in.

The Kingdom of Bahrain is itself an edge case. The country has no postal codes. Think this doesn’t matter? Try ordering something online, say from Amazon. No one ever explained to Jeff Bezos that it is possible to have a country without postal codes.

I won’t bore you with the bureaucratic fauda (the word means “mess” or “chaos” in both Hebrew and Arabic) I went through in an effort to fix the problem. Suffice it to say that it is precisely that fauda, which will become ubiquitous, that people are afraid of. That is the real fear of vaccination passports.

My take: let’s stick to paper. It’s a lot easier to fix.