MIRAMAR
Official seeking costs of defense
Commissioner Fitzroy Salesman wants to be reimbursed for legal fees in his criminal case, saying the charges stemmed from a wee-hours discussion about city business.
BY NATALIE P. McNEAL
nmcneal@MiamiHerald.com
CANDACE BARBOT / MIAMI HERALD FILE, 2003
Suspended in 2005 after his arrest, Miramar Commissioner Fitzroy Salesman wants the city to pay for his successful defense.Miramar City Commissioner Fitzroy Salesman's arrest and subsequent acquittal for drunk driving and fleeing police has cost city taxpayers about $120,000, and the tab could go higher.
The city spent $61,901 to conduct a special election and paid John Moore about $60,000 to fill Salesman's commission seat after the April 2005 arrest. Moore served 18 months.
Police overtime to give testimony in the case cost $524.76.
And now, Salesman says he is asking the city to reimburse him $42,000 he paid an attorney for his defense.
''I was arrested by Miramar police. I went to court. I let the evidence speak for itself,'' said Salesman, 50, who returned to the commission dais last week, after a nearly two-year suspension. ``I was found not guilty. The city owes me at least that much to consider paying my legal bills.''
That's not how it works, said attorney Bob Jarvis, a law professor at Nova Southeastern University. Simple acquittal in a criminal case does not obligate the government to pay the defendant's legal fees.
But Salesman says that when police spotted him at 3:45 a.m. on his way home from a local lounge, he had just concluded a discussion on city business. Salesman said he was talking with Tropix Lounge owner Andrew Reed about permitting problems. Reed could not be reached for comment.
There is some precedent for cities paying legal costs incurred by commissioners on city business. For example, Hollywood paid for Commissioner Sal Oliveri's defense after he was named in a federal lawsuit based on his actions as a commissioner.
Legal experts say that by paying the fees outright, Miramar would set a potentially costly precedent and open itself to criticism that it was spending taxpayer money on a special perk for a commissioner.
''If I were the city attorney, I would be having a very lengthy conversation with my client,'' Jarvis said.
If Salesman sues for the fees, the city could mount a defense or it could decide to settle, an option Jarvis called ``the cheap way out of a lawsuit.''
Jarvis said such a case could drag on for five years and could easily run $100,000 in defense costs.
It's not clear what the grounds for such a suit would be, and Salesman hasn't said.
Jarvis said that someone in Salesman's situation could file a civil suit in federal court, alleging false arrest, deprivation of civil rights, or even conspiracy, because more than one officer was involved in his arrest.
ACQUITTAL
A jury acquitted Salesman on March 26, after a three-day trial.
Miramar police said that Salesman was traveling 21 mph faster than the limit on Miramar Parkway and that he ran a stop sign. Police said he did not pull over in response to lights and sirens on a marked police car behind him.
At trial, one expert testified that the officer was so far back -- more than 470 feet -- that Salesman may not have realized he was there.
The police report indicates that as the officer followed, Salesman drove the wrong way on Di Lido Boulevard, ran another stop sign, then turned south into a northbound lane of Nassau Drive, eventually pulling into his own driveway.
He was charged with fleeing, an allegation that raised some jurors' eyebrows because he ended up at his own home.
Police gave him a sobriety test outside his home and indicated in an affidavit that Salesman had trouble balancing and following the officer's directions. But some jurors who viewed the videotape of his performance weren't persuaded that he was impaired.
Salesman was taken to a Broward Sheriff's Office testing facility near Fort Lauderdale, where about 90 minutes after his arrest, he was given a Breathalyzer test that indicated he had twice the legal limit of alcohol in his system. Jurors were able to discount that result because they felt the second test should never have been administered.
Salesman's agreement to a field sobriety test outside his home showed that he had nothing to hide, said Michael Guerrier, 37, a graphic artist who was on the jury.
RED FLAGS AT TRIAL
Jurors also asked why Salesman wasn't charged with speeding. For some, inconsistencies in police officers' testimony raised red flags.
Officer Ryan Shimpeno, for example, testified at trial that Salesman smelled of alcohol. But in an earlier deposition, he had said he didn't realize Salesman was drunk, a fact raised during cross-examination by Salesman's attorney, Carlos Canet.
Salesman says he's not out of line to ask that his legal fees be paid.
''Anyone who was arrested, and feels like they were wrongly arrested and that their rights were violated has the right to seek compensation for their legal bills,'' Salesman said.
Miramar City Manager Bob Payton said he won't comment on Salesman's request until he sees it.
''If I receive a document saying that he was working on behalf of the city or a claim saying that he wants to file a lawsuit to have legal fees paid, that's when I respond and move forward,'' Payton said.
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