Thursday, July 26, 2018

JOHN OTHA VALDES Takes Down Offending Photo With City Seal; City Attorney Incorrectly Claims It's "MOOT."

JOHN OTHA VALDES took down the photo of him with the City seal, so the City Attorney claims it's now "moot."  Wrong.  "Voluntary cessation" of illegal conduct does not make it "moot," and mootness does not prohibit litigation of a situation is "capable of repetition, yet evading review."   Here's my article from July 25.

Our City Attorneys may need to go back to law school for "retreading," in the immortal words of retired USDOL Chief Judge Nahum Litt when he was Chief Judge of the Civil Aeronautics Board, concerning a Harvard-educated General Counsel who wanted to violate airlines' constitutional rights.

Here's my response to the City Attorney's unscholarly "mootness" assertion, with the Assistant City Attorney's e-mail unadorned by any citation to pertinent case law:


-----Original Message-----
From: Ed Slavin
Sent: Thu, Jul 26, 2018 6:59 pm
Subject: Re: Request No. 2018-252: JOHN OTHA VALDES Unauthorized, for-profit, commercial use of City seal on construction company website












Dear Mr. Cary and Ms. Lopez, Chief Fox and Mr. Regan:
CORRECTION: 
1. JOHN OTHA VALDES misused the City seal for website advertising to attract construction and lobbying clients, bragging about and exploiting his "23 years" of City "service."
2.  His lawbreaking is not "moot" because it is "capable of repetition, avoiding review," and "voluntary cessation" does not make it "moot." Friends of the Earth, Inc. v. Laidlaw Environmental Services, Inc., 528 U.S. 167 (2000)(pollution case not moot; as long as polluter held factory license to operate, it could open similar operations elsewhere if not deterred by fines).  
3. JOHN OTHA VALDES has five (5) state licenses:

State of Florida Licenses

CBC 1252403 BUILDER
CCC1330822 ROOFING
CFC1429400 PLUMBING
HI1687 INSPECTOR
SL331234 REAL ESTATE
4.  Because you have not yet sent a Cease and Desist letter, you have empowered future lawbreaking by JOHN OTHA VALDES, a candidate for St. Augustine City Commission.  This is freighted with favoritism to an insider.
5.  Tomorrow, VALDES could reinstate his photo on his construction contracting website, inter alia bragging on his City service, without the City ever issuing a cease and desist letter.  

6.   VALDES' conduct is "capable of repetition, yet evading review."   Roe v. Wade, 410 U.S. 113 (1973)(Texas argued mootness because plaintiff was no longer pregnant). Justice Blackmun wrote in the majority opinion:
The normal 266-day human gestation period is so short that the pregnancy will come to term before the usual appellate process is complete. If that termination makes a case moot, pregnancy litigation seldom will survive much beyond the trial stage, and appellate review will be effectively denied. Our law should not be that rigid.



Roe v. Wade cited Southern Pacific Terminal Co. v. ICC, 219 U.S. 498 (1911), which held a case is not moot when it presents an issue that was "capable of repetition, yet evading review." See also Memphis Light, Gas & Water Div. v. Craft, 436 U. S. 1, 8–9 (1978)(damages claim saves cases from mootness).
7. It matters not whether the photo in quo was taken in the Commissioners' office in City Hall, in the Alcazar Room, in his corporate office, or anywhere else.  VALDES misused the City seal.
8. In the name of the law, guided by equal justice under law,  please proceed now with great vigor -- and without further favoritism -- to vindicate the City's rights and interests.  
9. Kindly send a Cease and Desist letter to JOHN OTHA VALDES, without further delays, and consider taking other actions under Florida law, without fear or favor of a wealthy business owner and candidate.
10. VALDES' blatant misuse of the City seal is "capable of repetition, yet evading review" and "voluntary cessation" does not create mootness.
11. Query: Has JOHN OTHA VALDES ever apologized for his blatant illegal misuse of the City seal to market his construction and lobbying services?  Please send me any such apology.
Thank you.
With kindest regards, I am,
Sincerely yours,
Ed Slavin
904-377-4998

-----Original Message-----
From: Darlene Galambos <dkirkland@citystaug.com>
To: Ed Slavin <easlavin@aol.com>
Sent: Thu, Jul 26, 2018 4:00 pm
Subject: RE: Request No. 2018-252: JOHN VALDES Unauthorized, for-profit, commercial use of City seal on construction company website
Please see the attached document responsive to your public record request.
From: Ed Slavin [mailto:easlavin@aol.com]
Sent: Wednesday, July 25, 2018 7:12 PM
To: John Regan; Isabelle Lopez; Darlene Galambos; John M. Cary; bfox@staugpd.com
Cc: Nancy Shaver; Todd Neville; Roxanne Horvath; Nancy Sikes-Kline; Leanna Freeman; john@johnvaldes.com; jillpacetti13@gmail.com; sheldon.gardner@staugustine.com; waltbog@nytimes.com; St. Augustine Public Records
Subject: Request No. 2018-252: JOHN VALDES Unauthorized, for-profit, commercial use of City seal on construction company website
Dear Chief Fox, Ms. Galambos, Ms. Lopez and Mr. Regan:

1. Please send me the investigative file on JOHN OTHA VALDES' apparent illegal, for-profit, commercial misuse of the City seal on his construction company website.  See attached download, containing the following photo:
Description: john-valdes.jpg
2. If no documents exist yet, please commence a civil, criminal and administrative investigation pursuant to City Code and F.S. 165.043.  
3. The City website states:
Use of the City Crest
In December, 1991, the City Commission adopted the new Coat of Arms as the official city seal and, made it unlawful for "any person to utilize any image or impression of the city seal without the consent, in writing, of the city commission." Additionally, Florida State Statute 165.043 Official county or municipal seal states that it is unlawful,  without the express approval of the governing body, to use the official seal, and punishable as provided in s. 775.082 or s. 775.083.
4. Please send JOHN OTHA VALDES a cease and desist letter instanter. 
5. Kindly advise the Florida Department of Business and Professional Regulation of his actions in misusing the City's seal.
6. Please send me copies of all documents generated pursuant to this request.
Thank you.
With kindest regards, I am, 
Sincerely yours,
Ed Slavin
904-377-4998
Description: Image removed by sender.
Attached Message
FromJohn M. Cary <jcary@citystaug.com>
ToDarlene Galambos <dkirkland@citystaug.com>; Isabelle Lopez <ilopez@citystaug.com>; Shanna Lee <slee@citystaug.com>
SubjectRE: Request No. 2018-252: JOHN VALDES Unauthorized, for-profit, commercial use of City seal on construction company website
DateThu, 26 Jul 2018 10:25:20 -0400
Darlene,
The statute says that, “The manufacture, use, display, or other employment of any facsimile or reproduction of the county or municipal seal, except by county or municipal officials or employees in the performance of their official duties, without the express approval of the governing body is a second degree misdemeanor, punishable as provided in s. 775.082 or s. 775.083.” 
The city code, in section 2-1, provides that it is punishable as a second degree misdemeanor in accordance with the laws of the state of Florida. 
The statute is broad enough that I think we arguably could pursue an action, though I don’t think the intent of the statute or code is for cities to police the internet for any picture that may incidentally contain the City Seal. The more reasonable interpretation is to pursue an action where somebody is using the seal in a way that it implies some sort of endorsement by the city, which I don’t think a picture of a person sitting in his office does, where the seal merely an office decoration. If we were to pursue this, it would involve first sending a cease and desist letter. However, since he has taken the picture off his website, this issue is moot, and no action need be taken in this matter. 
If he uses the picture again on his business website, please let me know, and I will address and come to a decision as to how we should proceed.
Thank you,
John
From: Darlene Galambos
Sent: Thursday, July 26, 2018 9:16 AM
To: Isabelle Lopez <ilopez@citystaug.com>; Shanna Lee <slee@citystaug.com>; John M. Cary <jcary@citystaug.com>
Subject: RE: Request No. 2018-252: JOHN VALDES Unauthorized, for-profit, commercial use of City seal on construction company website
Thank you, I was actually wondering that very thing because numerous people post photos when they receive recognitions and proclamations.  I will wait until I hear from John.
From: Isabelle Lopez
Sent: Thursday, July 26, 2018 9:00 AM
To: Shanna Lee; John M. Cary; Darlene Galambos
Subject: RE: Request No. 2018-252: JOHN VALDES Unauthorized, for-profit, commercial use of City seal on construction company website
This is something John can handle.  It doesn’t appear to be the intent of the statute, people pose in front our seal in pictures all the time.  But John can look into it and advise.
From: Shanna Lee
Sent: Thursday, July 26, 2018 8:29 AM
To: Isabelle Lopez <ilopez@citystaug.com>; John M. Cary <jcary@citystaug.com>; Darlene Galambos <dkirkland@citystaug.com>
Subject: RE: Request No. 2018-252: JOHN VALDES Unauthorized, for-profit, commercial use of City seal on construction company website
This is the photo from the attachment:
However, if you go to the page right now (https://www.johnvaldesandassociates.com/about-us/), there is no photo.
Shanna Lee, FRP | Administrative Coordinator
City Attorney’s Office
City of St. Augustine
75 King Street
P.O. Box 210
St. Augustine, Florida  32085
Telephone:  (904) 825-1052 
Facsimile:    (904) 825-1096
slee@citystaug.com
For Public Records Requests Please Contact: recordsrequest@citystaug.com
For More Information Please Visit Our Website At: http://www.staugustinegovernment.com/government/administration/city_attorney/index.php
Please Note: Florida has a very broad Public Records Law. Unless specifically exempt by state law, written communications to city officials or staff regarding official city business are public records available to the public and media upon request. If your email communication is related to official government business, it may therefore be subject to public disclosure.
From: Isabelle Lopez
Sent: Wednesday, July 25, 2018 7:55 PM
To: Shanna Lee <slee@citystaug.com>; John M. Cary <jcary@citystaug.com>; Darlene Galambos <dkirkland@citystaug.com>
Subject: Fwd: Request No. 2018-252: JOHN VALDES Unauthorized, for-profit, commercial use of City seal on construction company website
I couldn't open the attachment.  Darlene, if you can check, and if he is using the city seal and has not been authorized to do so, please follow up with him and make him aware that he must obtain approval or remove the city seal.
If you need assistance, ask John C. 
Sent from my Verizon, Samsung Galaxy smartphone
-------- Original message --------
From: Ed Slavin <easlavin@aol.com> 
Date: 7/25/18 7:26 PM (GMT-05:00) 
To: John Regan <jregan@citystaug.com>, Isabelle Lopez <ilopez@citystaug.com>, Darlene Galambos <dkirkland@citystaug.com>, "John M. Cary" <jcary@citystaug.com>, bfox@staugpd.com
Subject: Request No. 2018-252: JOHN VALDES Unauthorized, for-profit, commercial use of City seal on construction company website 
Dear Chief Fox, Ms. Galambos, Ms. Lopez and Mr. Regan:

1. Please send me the investigative file on JOHN OTHA VALDES' apparent illegal, for-profit, commercial misuse of the City seal on his construction company website.  See attached download, containing the following photo:
john-valdes.jpg
2. If no documents exist yet, please commence a civil, criminal and administrative investigation pursuant to City Code and F.S. 165.043.  
3. The City website states:
Use of the City Crest
In December, 1991, the City Commission adopted the new Coat of Arms as the official city seal and, made it unlawful for "any person to utilize any image or impression of the city seal without the consent, in writing, of the city commission." Additionally, Florida State Statute 165.043 Official county or municipal seal states that it is unlawful,  without the express approval of the governing body, to use the official seal, and punishable as provided in s. 775.082 or s. 775.083.
4. Please send JOHN OTHA VALDES a cease and desist letter instanter. 
5. Kindly advise the Florida Department of Business and Professional Regulation of his actions in misusing the City's seal.
6. Please send me copies of all documents generated pursuant to this request.
Thank you.
With kindest regards, I am, 
Sincerely yours,
Ed Slavin
904-377-4998
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