01/18/1995 Regular
95/3
MINUTES
OF THE MONROE COUNTY
BOARD OF COUNTY COMMISSIONERS
Regular Meeting
Board of County Commissioners
Wednesday, January 18, 1995
Key West
A Regular Meeting of the Monroe County Board of County
Commissioners convened at 9 a.m., on the above date, in Courtroom
B, County Courthouse, Key West. Present and answering to roll
call were Commissioners Keith Douglass, Wilhelmina Harvey, Jack
London, Mary Kay Reich and Mayor Shirley Freeman. Also present
were Danny L. Kolhage, Clerk; Ruth Ann Jantzen, Deputy Clerk;
Randy Ludacer, County Attorney; James Roberts, County
Administrator; County Staff, members of the Press and Radio; and
the general public.
All stood for the Invocation and Pledge of Allegiance.
ADDITIONS, CORRECTIONS, DELETIONS
Motion was made by Commissioner London and seconded by
Commissioner Harvey granting approval of the Additions,
Corrections and Deletions to the Agenda. Motion carried
unanimously.
BULK APPROVALS
Motion was made by Commissioner Reich and seconded by
Commissioner London granting approval of the following items by
unanimous consent:
Board granted approval and authorized execution of a
Grant Award Agreement between Monroe County and Florida
Communities Trust to fund the purchase of the Schwitalla property
on Coco Plum Beach in Marathon.
Board granted approval and authorized execution of an
Amendment to a Contract between Monroe County and Lewis
Environmental Services for forest mapping and quality assessment.
TOURIST DEVELOPMENT COUNCIL
Board adopted the following Resolution walvlng any
conflict of interest for Herbert Spiegel, as General Manager and
Vice President of Cheeca Lodge, which applies for and receives
95/4
funding from the Monroe County Tourist Development Council for
the Cheeca Lodge Presidential Sailfish Tournament.
RESOLUTION NO. 001-1995
See Res. Book No. 125, which is incorporated herein by reference.
Board granted approval and authorized execution of an
Amendment to the Agreement between Monroe County and Stuart
Newman Associates establishing paragraph 4A Emergency Action, in
an amount not to exceed $150,000.00, FY 1995, Two Penny,
Contingency Fund.
Board granted approval and authorized execution of an
Addendum to Agreement between Monroe County and Friends of
Islamorada State Park, Inc., covering Indian Key Festival '95,
October 14-15, 1995. The total amount remains at $12,185.00,
allocated under the Fishing Umbrella.
Board granted approval and authorized execution of an
Addendum to Agreement between Monroe County and Cellet Travel
Services, Inc., covering changes to services, compensation and
billings. The total amount remains at $41,000.00.
Board granted approval and authorized execution of an
Addendum to Agreement between Monroe County and Tinsley
Advertising covering a change to paragraph 9 Exclusive
Representation, and establishing paragraph 4B Emergency Action,
in an amount not to exceed $150,000.00, FY 1995, Two Penny
Contingency Fund.
Board granted approval and authorized execution of a
Telemarketing Disaster Recovery and Hardware and Software
Maintenance Agreement between Monroe County and USA 800, Inc.,
covering telemarketing disaster recovery and hardware and
software maintenance for the five Chambers of Commerce.
Board granted approval for the Tourist Development
Council to pursue the purchase of computer hardware, software
programming, and databank entry/access independently of the
County procurement office and procedures.
Board granted approval and authorized execution of a
Local Major Event Agreement between Monroe County and the Key
West Business Guild covering Gay Arts Festival, June 17-24, 1995,
in an amount not to exceed $44,000.00, FY 1995, Third Penny.
Board granted approval and authorized execution of a
Local Major Event Agreement between Monroe County and the
Association for Tourism Development covering Fantasy Fest '95,
October 20-29, 1995, in an amount not to exceed $96,000.00, FY
1995, Third Penny.
95/5
Board granted approval and authorized execution of a
Local Major Event Agreement between Monroe County and Key West
Festivals, Inc., covering Hemingway Days '95, July 17-23, 1995,
in an amount not to exceed $31,500.00, FY 1995, Third Penny.
Board granted approval for the Tourist Development
Council to advertise for Request for Proposals (RFP) for events.
CONSTRUCTION MANAGEMENT
Board granted approval and authorized execution of
Contract FC-001, between Monroe County and Plantation
Construction, Inc., for the renovation of the Conch Key Fire
Safety Facility, in the amount of $42,000.00.
Board granted approval and authorized execution of
Contract TR-001 between Monroe County and American Atlas
Wrecking, for Phase 1 demolition of Truman School, in the amount
of $124,000.00.
Board granted approval and authorized execution of
Change Order No. 27-001-004 to D. L. Porter Construction's
Contract No. FB-001, Construction, for the Big Coppitt Fire
Facility, in the amount of $2,884.00, to resolve the stormwater
drainage issues presented by the Homeowners Association.
Board granted approval and authorized execution of
Amendment No.1, to Contract M-001, between Monroe County and
Professional Service Industries, Inc., to renew their annual
services agreement for threshold inspection, quality control
testing and subsurface investigation, for a period of one year
beginning December 22, 1994.
COMMISSIONERS' ITEMS
Board granted approval for Commissioner Reich to attend
the National Hurricane Conference in Atlantic City, New Jersey,
April 11-14, 1995.
Board granted approval of Commissioner Reich's
appointments of Pamela Martin, Elizabeth Vail and Mary Boa to the
Monroe County Commission on the Status of Women.
Board granted approval of Commissioner Douglass'
appointment of Judy Greenman to the Human Services Advisory
Board.
Board granted approval for Commissioner Douglass to
attend the National Association of Counties Legislative
Conference in WaShington, DC, March 2-8, 1995.
'5/6
Board extended appreciation of the Harris Poll
sponsored by the Navy League of the united states, Key West
Council, chaired by Edward M. Block. The Poll results will be
used by the Monroe County Base Closure and Realignment Commission
in their continuing efforts to retain Naval Air station Key West.
The Poll was made possible by the generosity of Mr. Block and Mr.
Harris as a public service to the community.
Board granted approval of Commissioner Douglass'
appointments of Kathy Lancaster, Sharon Macut and vi Yost to the
Commission on the Status of Women.
Board granted approval for Commissioner Douglass to
attend the Florida Counties Foundation/Florida Association of
Counties County commissioner's Education Program in Ft.
Lauderdale, February 9-10, 1995.
Board granted approval of Commissioner Reich's
appointment of Michael Ozegovich to the Human Services Advisory
Board.
Board granted approval of Commissioner London's
appointment of John Rolli to the Human Services Advisory Board.
Motion carried unanimously.
MISCELLANEOUS BULK APPROVALS
County Administrator James Roberts addressed the Board.
Bob Herman, Director of Growth Management, addressed the Board.
Motion was made by Commissioner Douglass and seconded by Mayor
Freeman to adopt the following Resolution denying a Land Use
District Map Amendment changing the Land Use Designation for
property legally described as Lots 1 through 18, Block 27, Sands
SUbdivision, Big pine Key, Monroe County, Florida, from Improved
Subdivision (IS) to Urban Residential Mobile Home District (URM).
Roll call vote was taken with the following results:
commissioner Douglass
Commissioner Harvey
Commissioner London
Commissioner Reich
Mayor Freeman
Motion carried.
Yes
No
Yes
No
Yes
RESOLUTION NO. 002-1995
See Res. Book No. 125, which is incorporated herein by reference.
95/7
commissioner Douglass addressed the Board. Motion was
made by Commissioner Douglass and seconded by Commissioner London
to adopt the following Resolution confirming the Administrative
Boundary Interpretation of the Planning Director in Land Use
District Map Boundary Interpretation No. 94, Part Lot 8, section
23, Township 63, Range 37, Windley Key, (RE: #00094120), Monroe
County, Florida, approximately Mile Marker 85. Motion carried
unanimously.
RESOLUTION NO. 003-1995
See Res. Book No. 125, which is incorporated herein by reference.
Motion was made by Commissioner Douglass and seconded
by Commissioner to approve the following two items. Motion
carried unanimously.
Board adopted the following Resolution confirming the
Administrative Boundary Interpretation of the Planning Director
in Land Use District Map Boundary Interpretation Number 93, Lots
1, 2, 3, 4, 5, Block, 4, Holiday Homesites, Key Largo, Monroe
County, Florida, approximately Mile Marker 100.
RESOLUTION NO. 004-1995
See Res. Book No. 125, which is incorporated herein by reference.
Board granted approval and authorized execution of an
Agreement between Monroe County and the Department of Community
Affairs concerning updating the Hazardous Material Emergency Plan
for Monroe County.
GROWTH MANAGEMENT DIVISION
Motion was made by Commissioner London and seconded by
Commissioner Douglass granting approval and authorizing execution
of a Letter of Engagement between Monroe County and Morgan &
Hendrick, for an additional one year period to act as Special
Litigation Counsel to the Board and Special Counsel to Monroe
County for legislative and state agency matters for fiscal year
1994-1995 with a cap on total billings set at $250,000.00. Roll
call vote was taken with the following results:
Commissioner Douglass
Commissioner Harvey
Commissioner London
Commissioner Reich
Mayor Freeman
Motion carried.
Yes
Yes
Yes
No
Yes
95/8
Bob Herman addressed the Board. Jim Hendrick, Special
Litigation Counsel, addressed the Board regarding the Twin
Harbors case ruling of contempt and continuing problems on site;
Federal Judge Lawrence King's ruling in favor of Monroe County in
the New Port Largo case; and the closure of Boot Key Bridge.
Motion was made by Commissioner Reich and seconded by
Commissioner London granting approval of the following Resolution
rescinding Resolution No. 383-1994, which tabled a Land Use
District Map Amendment changing the Land Use Designation for the
Holiday Harbour property legally described as Lot 535, and the
westerly 15 feet of Lot 536, Port Largo, Fifth Addition, Key
Largo from Improved Subdivision (IS) to Suburban Commercial (SC).
Roll call vote was unanimous.
RESOLUTION NO. 005-1995
See Res. Book No. 125, which is incorporated herein by reference.
Bob Herman addressed the Board regarding a draft
ordinance amending section 6-42, Monroe County Code, providing
for a waiver of building fees for non-profit corporate applicants
building low-income housing. Dona Merritt addressed the Board.
Motion was made by Mayor Freeman and seconded by Commissioner
Douglass to change section l(a) of the proposed ordinance to
read: "The county, the state, the united States, all corporate
municipalities situated wholly within the boundaries of the
county, the city electric system, the Florida Keys Aqueduct
Authority, the county school district, other governmental
entities which reciprocate, and the fire departments and
volunteer emergency medical departments, shall be exempt from the
requirements for a building fee for construction in the county."
Motion carried unanimously. Motion was made by Mayor Freeman and
seconded by Commissioner Reich directing staff to revise the
above ordinance to allow for waivers for construction on county
owned property by non-profit organizations, but not automatic.
Roll call vote was unanimous.
Jim Hendrick addressed the Board. Motion was made by
Commissioner London and seconded by Commissioner Reich to adopt
the following Resolution granting approval of a Stipulated
Settlement Agreement between Monroe County, Monroe County School
Board, and Department of Community Affairs, and authorization for
the Mayor to execute said agreement. Roll call vote was
unanimous.
RESOLUTION NO. 006-1995
See Res. Book No. 125, which is incorporated herein by reference.
95/'
PUBLIC HEARINGS
A Public Hearing was held to consider a Resolution to
abandon a portion of Dominica Lane, Breezeswept Beach Estates,
Ramrod Key. There was no public input. Motion was made by
Commissioner London and seconded by Commissioner Reich to adopt
the following Resolution renouncing and disclaiming any right of
the county and the public in and to a portion of Dominica Lane,
Breezeswept Beach Estates, Ramrod Key, Monroe County, Florida.
Roll call vote was taken with the following results:
commissioner Douglass
Commissioner Harvey
Commissioner London
Commissioner Reich
Mayor Freeman
Motion carried.
Yes
No
Yes
Yes
Yes
RESOLUTION NO. 007-1995
See Res. Book No. 125, which is incorporated herein by reference.
A Public Hearing was held to consider proposed
amendments to Monroe County's regulations concerning emergency
medical transportation services, including changes to pre-
hospital service zone areas. Michael O'Dell, Chief Flight Nurse
with Biscayne Aeromed of the Florida Keys addressed the Board.
Motion was made by Mayor Freeman and seconded by Commissioner
Reich to continue this Public Hearing to the next regularly
scheduled Board Meeting in February, with a time certain of 10:00
a.m. Motion carried unanimously.
A Public Hearing was held to consider an Ordinance
imposing a surcharge of twelve dollars and fifty cents ($12.50)
for moving traffic violations with the proceeds to be used to
fund Monroe County's participation in an intergovernmental radio
communication program. County Attorney Randy Ludacer read by
title only. There were no speakers. Motion was made by
Commissioner London and seconded by Commissioner Reich to adopt
the following Ordinance imposing a surcharge of twelve dollars
and fifty cents ($12.50) for moving traffic violations with the
proceeds to be used to fund Monroe County's participation in an
Intergovernmental Radio Communication Program; providing for
severability; providing for the repeal of all ordinances
inconsistent herewith; providing for incorporation into the
Monroe County Code; and providing an effective date. Amended in
section 5 to read: "This Ordinance shall take effect 60 days
after receipt of official notice from the Office of the Secretary
of State of the State of Florida that this Ordinance has been
filed with said office." Motion carried unanimously.
ORDINANCE NO. 001-1995
See Ord. Book No. 35, which is incorporated herein by reference.
95/10
A Public Hearing was held to consider an Ordinance
rev1s1ng Section 6-55, Monroe County Code, to bring the section
into compliance with State Statutes, exempting from licensure
owners of property when acting as their own contractor improving
material supervision. County Attorney Randy Ludacer read by
title only. Bill Smith, representing the Florida Keys
Contractors Association, addressed the Board. Motion was made by
Commissioner Douglass and seconded by Commissioner Harvey to
adopt the following Ordinance revising Monroe County Code,
section 6-55 to bring the section into compliance with the state
statutes, exempting from licensure owners of property when acting
as their own contractor in providing material supervision;
revising the exemption to apply to one-family or two-family
residences and commercial buildings at a cost of under
$25,000.00; providing for the exemption not be available within
one year of completing a structure built under this exemption;
providing for severability; providing for the repeal of all
ordinances inconsistent herewith; providing for incorporation
into the Monroe County Code of Ordinances; and providing an
effective date. Roll call vote was taken with the following
results:
commissioner Douglass
Commissioner Harvey
Commissioner London
Commissioner Reich
Mayor Freeman
Motion carried.
Yes
Yes
Yes
No
No
ORDINANCE NO. 002-1995
See Ord. Book No. 35, which is incorporated herein by reference.
A Public Hearing was held to consider an Ordinance
prohibiting the anchoring or mooring of live-aboard vessels in
man-made canals and basins located in residential areas;
providing an exemption for lawfully operating marinas. County
Attorney Randy Ludacer read by title only. The following
individuals addressed the Board: H. T. pontin; Eugene
Shinkevich, representing the Big Pine Key civic Association; Bob
Schneider; Vern Pokorski; H. Robert DeHaven. Motion was made by
Commissioner London and seconded by Commissioner Reich to adopt
the following ordinance with two amendments. The first amendment
to include the word dockinq after the words "anchoring or
mooring" throughout the ordinance. Second amendment to include
Monroe County Code Enforcement being charged with enforcement
responsibilities for this ordinance. Commissioner London
withdrew his original motion. Motion was made by Commissioner
Reich and seconded by Commissioner Harvey to hold two more Public
Hearings on the proposed ordinance. Roll call vote was taken
with the following results:
95/11
Commissioner Douglass
Commissioner Harvey
Commissioner London
Commissioner Reich
Mayor Freeman
No
Yes
No
Yes
No
Motion failed.
Motion was made by Commissioner London and seconded by
commissioner Douglass to adopt the following Ordinance with two
amendments. The first amendment to include the word dockinq
after the words "anchoring or mooring" throughout the ordinance.
Second amendment to include Monroe County Code Enforcement being
charged with enforcement responsibilities for this ordinance.
Prohibiting the anchoring, mooring or docking of live-aboard
vessels in man-made canals and basins located in residential
areas; providing an exemption for lawfully operating marinas;
providing for definitions; providing for penalties; providing for
severability; providing for the repeal of ordinances inconsistent
herewith; providing for incorporation into the Monroe County Code
or Ordinances; and providing an effective date. Roll call was
taken with the fOllowing results:
commissioner Douglass
Commissioner Harvey
Commissioner London
Commissioner Reich
Mayor Freeman
Motion carried.
Yes
Yes
Yes
No
Yes
ORDINANCE NO. 003-1995
See Ord. Book No. 35, which is incorporated herein by reference.
Motion was made by Commissioner London and seconded by
Commissioner Harvey directing this Ordinance to the Monroe County
Port and Advisory Committee for evaluation and appointed
Commissioner Douglass to sit on this committee. Roll call vote
was unanimous.
SOUNDING BOARD
A discussion of Monroe County Tourist Development
Council's request for proposal for beach cleaning and maintenance
for a period of three years was continued to the next Board
Meeting in February.
A discussion of installation of electric power on No
Name Key with county assistance in obtaining necessary permits
and funding was held. The following individuals addressed the
board: Aldona A. Siczek; David Eaken; Alicia Roemmele-Putney,
representing full time residents of No Name Key; Vicky L.
Andrews; Robert Schneider; Eugene Shinkevich, representing the
95/12
Big pine Key civic Association; Vern Pokorski; Jerome Kerwin and
Ernest Damon. Raymond Rodriguez, representing City Electric
System Customer Service addressed the Board. No official action
was taken.
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DISTRICT #1
LOWER AND MIDDLE KEYS FIRE AND AMBULANCE DISTRICT
BOARD OF GOVERNORS
The Board of Governors of District #1 Lower and Middle
Keys Fire and Ambulance District convened. Present and answering
to roll call were Mayor Samuel J. Feiner, Commissioner Keith
Douglass, Mayor Shirley Freeman, Commissioner Hal Halenza and
Commissioner London.
County Administrator Jim Roberts addressed the board
regarding the establishment of the position of Fire-Rescue
Coordinator. Motion was made by Commissioner London and seconded
by Mayor Freeman to continue this item to the next regular Board
meeting in February. Motion carried unanimously.
There being no further business, the meeting of the
Board of Governors of District #1 Lower and Middle Keys Fire and
Ambulance District adjourned.
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The Board of County Commissioners reconvened in an
attorney/client session, closed to the public at 1:30 p.m.,
pursuant to Sec.286.011(8), Florida Statute (1993). The session
was confined to discussion of settlement negotiations and
strategy sessions related to litigation expenditures in the
following cases: Marathon Air Services v. Monroe County; Monroe
County v. Post, Buckley, Schuh & Jernigan, Inc.; Monroe County v.
Holiday Isle, et al.; and Florida Keys Marine, Inc. and Holiday
Isle Resort & Marina Associates v. Monroe County et al.
Board.
Mayor Freeman reconvened the regular meeting of the
MANAGEMENT SERVICES
The Board tabled an appeal by SeaCoast Airlines of
insurance requirements waiver denial. This matter will be
discussed at the next regular Board Meeting in February.
Ann Lynch, representing the Fine Arts Council addressed
the Board. Motion was made by Commissioner Douglass and seconded
by Commissioner Harvey granting approval and authorizing
execution of an interlocal agreement for Accounting Fees between
Monroe County and the Fine Arts Council in the amount of
95/13
$2,500.00. Roll call vote was taken with the following results:
commissioner Douglass
Commissioner Harvey
Commissioner London
Commissioner Reich
Mayor Freeman
Motion carried.
Yes
Yes
No
Yes
Yes
Motion was made by Commissioner Harvey and seconded by
Commissioner Reich granting approval and authorizing execution of
an Interlocal Agreement for Legal Services between Monroe County
and the Fine Arts Council in the amount of $4,500.00. Roll call
vote was taken with the following results:
Commissioner Douglass
Commissioner Harvey
Commissioner London
Commissioner Reich
Mayor Freeman
Motion carried.
No
Yes
No
Yes
Yes
CONSTRUCTION MANAGEMENT
Patrick Jennings, of Morrison-Knudsen/Gerrits addressed
the Board. Motion was made by Commissioner Reich and seconded by
Commissioner London granting approval of award of bid and
authorized execution of Contract FKOOl between Monroe County and
Rovel Construction, Inc., for construction of the Key Largo Fire
Facility, in the amount of $952,642.00. Motion carried
unanimously.
COMMISSIONERS' ITEMS
Commissioner Reich discussed a request from Charles
Kanter for the Board's assistance in obtaining a county-wide toll
free dialing area, and access to modern computer information
services. Charles Kanter addressed the Board. Don Sadler,
representing Southern Bell, addressed the Board. No official
action was taken.
Commissioner Douglass introduced Bob Soos and John
DOlan-Heitlinger of the United Way of Monroe County who gave a
presentation to the Board and encouraged the Board to make the
United Way Payroll Deduction Plan available to all county
employees.
95/14
Motion was made by Commissioner London and seconded by
Commissioner Douglass granting approval of a refund request from
the Pigeon Key Foundation, a non-profit entity, in the amount of
$3,025.00, for minor conditional use permit for Pigeon Key
restoration. Roll call vote was taken with the following
results:
Commissioner Douglass
Commissioner Harvey
Commissioner London
Commissioner Reich
Mayor London
Motion carried.
Yes
Yes
Yes
No
Yes
Dona Merritt addressed the Board regarding the Monroe
County Comprehensive Plan Objective 101.4 regulating future
development and redevelopment to maintain the character of the
community by providing for the compatible distribution of land
uses consistent with the designations shown on the future land
use map. Lorenzo Aghemo, Planning Department Director, addressed
the Board. Motion was made by Commissioner Harvey and seconded by
Commissioner London to adopt the following Resolution directing
Robert Apgar, representing the County in the now recessed
administrative hearings regarding the Monroe County Comprehensive
Plan and the proposed DCA Rule 28-20, not to continue opposition
to that portion of DCA Rule 28-20 (commencing on page 28(9) of
the rule) amending the policies currently enumerated 101.4.1
through 101.4.24 under Objective 101.4 of the Monroe County
comprehensive Plan to add: Policy No. 101.4.25 - in order to
preserve the existing community character and natural
environment, Monroe County shall limit the height of structures
including landfills to thirty five feet. Exceptions will be
allowed for appurtenances to buildings, transmission towers and
other similar structures. Motion carried unanimously.
RESOLUTION NO. 008-1995
See Res. Book No. 125, which is incorporated herein by reference.
Motion was made by Commissioner London and seconded by
Commissioner Douglass to add to the agenda an award to the Key
West citizen. Motion carried unanimously.
Mayor Freeman presented an award to Winston Burrell,
publisher of the Key West citizen. Also present at the award
presentation were Tim Akin and Chris Doyle of the Key West
Citizen; Joan Higgs and Stephanie Walters of the Monroe County
Health Department. The Award was for the best program for the
support of health and education in the State of Florida in the
Breast Cancer Awareness Campaign.
95/15
PUBLIC HEARINGS
A Public Hearing was held on a proposed amendment to
the land use district map for applicants William E. Olson and
Cynthia o. Ward, who request a zoning change from Commercial
Fishing Special District 1 to Suburban Commercial.
Lorenzo Aghemo addressed the Board. Joan Tucker, representing
William Olson addressed the Board. William E. Olson addressed
the Board. Jim Hendrick, Special Litigation Counsel, addressed
the Board. Motion was made by Commissioner London and seconded
by Commissioner Reich to adopt the following Ordinance adopting a
Land Use District Map Amendment changing the Land Use Designation
for the William E. Olson and Cynthia o. Ward property legally
described as part of government lots 1 and 2 and adjacent bay
bottom, Big pine Key, section 27, Township 66S, Range 29#, Mile
Marker 29.5, and further described in metes and bounds, from
Commercial Fishing Special District 1 (CFSO-l) to Suburban
Commercial (SC); transmitting these amendments to the State Land
Planning Agency for approval; providing for severability; and
providing for an effective date. Motion carried unanimously.
ORDINANCE NO. 004-1995
See Ord. Book No. 35, which is incorporated herein by reference.
Chad Sellmer of the Reporter announced to the Board
that he was leaving the area and thanked the Commission for their
cooperation.
There being no further business to come before the Board, the
meeting was adjourned.
Clerk to the Board of County
Commissioners of Monroe County
~~~.uJ
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Guo( j - , wor ur K-- e
r' BOARD OF COUNTY COMMISSIONERS
MAYOR, Wilhelmina Harvey, District 1
0 U N TY o M 0 N R 0 E ms' Mayor Pro Tem, Jack London, District 2
Douglas Jones, District 3
KEY WEST FLORIDA 33040 'Jo A. Earl Cheal, District 4
(305) 294 - 4641 t` I r John Stormont, District 5
.
RECEIVED ORIGINAL AND COPY OF TRANSCRIPT OF ATTORNEY- CLIENT
CLOSED SESSION OF JANUARY 18, 1995 FROM COUNTY ATTORNEY'S
OFFICE THIS 17TH DAY OF FEBRUARY, 1995.
1
• MY
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NOTICE OF ATTORNEY- CLIENT SESSION OF THE -:tit 1
MONROE COUNTY COMMISSION CLOSED TO THE PUBLIC 1
NOTICE IS HEREBY GIVEN pursuant to Sec. 286.011(8), Fla. Stat. (1993), that
on Wednesday, January 18, 1995, from 1:30 p.m. to 3:00 p.m. In Courtroom 8 . 2Y
500 Whitehead Street, Key West, Florida, the Board of County Commissioners will
meet in order to hold an attomey- client session. The session will be confined to .
o ;,,r9
discussion of settlement negotiations and strategy sessions related to litigation ,
expenditures In the following cases: Marathon Air Services v. Monroe County, .a
Monroe County v. Post. Buckley. Schuh & Jernigan. Inc., Monroe County v,
}lolidav Isle, et al.. and Florida Keys Marine. Inc. and Holiday Isle Resort & Marini `
Associates v. Monroe County, et a(. The session will be closed to the public. �' 4 ,
The following persons will be present for the closed session: '
o r • 1ta F p, •
Mayor Shirley Freeman County Engineer David Koppel .
Mayor Pro Tem Jack London -• - Community Services Director Peter Horton `''
Commissioner Keith Douglass Attorney Ralf Brookes . ,., .,:::/--. " -
Commiaioner Wilheimina Harvey Attorney Al Frigola r r f..
Commissioner Mary Kay Reich Attorney Jim Hendrick ;'.1.-:_t;.,-,-,, - F
County Administrator Jim Roberts Attorney Hugh Morgan < ■• x
County Attorney Randy Ludocer Attorney Wayne Smith ' '
County Clerk Danny Koihage • `
:- 1 k
DATED at Key West, Florida, this 22nd day of December, 199. ,.,•.;t ( i
DANNY L. KOLHAGE ,,:„;9 ,'',. , " i
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Clerk of the Circuit Court • 1 '•T
and ex officio Clerk of the ` , f
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Board of County Commissioners * : P,. ` a ,
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of Monroe County, Florida
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10 -28 -1997 3:36PM FROM M C ADMINISTRATOR 305 292 4544 P.1
•
fif8lq5
• H. ATTORNEY /CLIENT SESSION - CLOSED TO THE PUBLIC
c) Monroe County v. Holiday Isle, et al
d) Florida Keys Marine, Inc. and Holiday
Isle Resort & Marina Associates v.
Monroe County, et al.
3:15 PM I. CONSTRUCTION MANAGEMENT
1. Award bid and approval to execute Contract
FC -001, renovation of the Conch Key Fire
Safety Facility to Plantation Construction,
Inc.
2. Award bid and approval to execute Contract
TR -001, Phase 1 demolition of Truman School
to American Atlas Wrecking
3. Approval of Change Order No. 27 -001 -004 to
D.L. Porter Construction's Contract No.
FB -001, construction for the Big Coppitt
Fire Facility
4. Award bid and approval to execute Contract
FK -001, construction of the Key Largo Fire
Facility to Rovel Construction, Inc.
5. Approval to execute Amendment No. 1 to renew
annual services agreement, Contract M -001,
with PSI for threshold inspection, QC test-
ing and subsurface investigation to be effec-
tive from December 22, 1994 to December 21,
1995
3:30 PM J. MANAGEMENT SERVICES
1. Appeal by SeaCoast Airlines of Insurance
requirements waiver denial
K. COMMISSIONERS' ITEMS
4:00 PM 1. COMMISSIONER REICH - Request from Charles
Kanter for the Board of County Commissioners
assistance in obtaining a county -wide toll
free dialing area, and access to modern
computer information services
2. COMMISSIONER REICH - Discussion item -
Habitat for Humanity
3. COMMISSIONER REICH - Approval to attend
the National Hurricane Conference in Atlan-
tic City, New Jersey, April 11 -14, 1995
4. COMMISSIONER REICH -- Approval of appoint-
ments of Pamela Martin, Elizabeth Vail and
Mary Boa to the Monroe County Commission on
the Status of Women
5. COMMISSIONER DOUGLASS - Appointment of Ju-
dy Greenman to the Human Services Advisory
Board
5
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F.S. t e
f� ;
y : _ PUBLIC BUSINESS; MISCELLANEOUS PROVISIONS
Ch. 286
' If
The requirements of this section do not apply to appeals any court order which has found said board,
olottkre provided in s. 200.065(3). commission, agency, or authority to have violated this
. . n H? 1 s . . 14, ch. 88 -216; S. 209, ch. 95 -148.
section, and such order is affirmed, the court shall
- t shall he n„ r•;00 ,. X1011 Public meetings and records; public assess a reasonable attorney's fee for the appeal
ual report sh,ie to - criminal and civil penalties. against such board, commission, agency, or authority.
officer, and , • 4..cj . Ai rneet,ngs of any board or commission of any Any fees so assessed may be assessed against the indi
ested part„ ..rti �rXsti. or authority or of any agency or authority vidual member or members of such board or commis -
ignated rer it:rr•• at ' ' :;,,,,,,,c, 1 t'. Ai, i r municipal corporation, or political subdivi sion; provided, that in any case where the board or com k
mission seeks the advice of its attorney
si : g« e+ as otherwise provided in the Constitution, y and such advice
itorily myuu, .7 J . , � e+ Id acts are to be taken are declared to be is followed, no such fees shall be assessed against the
:ive, Ieg,slatnr• s rev.; open to the public at all times, and no individual member or members of the board or commis
t, the State 1),ac,3 ,- . Irtft.t.ef rule, or formal action shall be considered sion.
f Regent : ■ 4 .N r V a ` - 44 r.:_ .•pt as taken or made at such meeting. The (6) All persons subject to subsection (1) are prohib
Jty of the dr..... r c ,..1 ' . c. , mm ssion must provide reasonable notice of ited from holding meetings at any facility or location
)5, to:t►«.rn +,Wigs which discriminates on the basis of sex, age, race,
ate bibhogr:,t •* ).,..:4,1, < '. •,, r of a meeting of any such board or creed, color, origin, or economic status or which oper-
, ution as pru..s.d �� ` 'r'"w. of any such state agency or authority shall ales in such a manner as to unreasonably restrict public
formation rn.t. to °' - IVto4- ., recorded, and such records shall be open access to such a facility.
ad by the iii,... es ,4 04,1k .- - it r The circuit courts of this state shall ( Whenever any member of any board or commis
` I. ,.. 1.1,!..)n to Issue injunctions to enforce the pur sion of any state agency or authority or any agency or
>tribution oft t.,,. f` section upon application by any citizen of authority of any county, municipal corporation, or politi-
>` cal subdivision is charged with a violation of this section
e execute., :. t :;Itla, .t, y cwbIIc officer who violates any provision and is subsequently acquitted, the board or commission
government t*r ':.. " i�lf,t .. ,, guilty of a noncriminal infraction, pun- is authorized to reimburse said member for any portion
s fees.
s, the Ear .v,t -4 •
of his or her reasonable attorney's oast t 'n.• not exceeding $500. y'
emission trim- ,ii" ft, f.14 who is a member of a board or com (8) Notwithstanding the provisions of subsection (1),
j .' t any state agency or authority of any any board or commission of any state agency or author -
request pi( trry ., law/. , . pal corporation, or political subdivision ity or any agency or authority of any county, municipal
tl cost of dut c. s o:, •• al, violates the provisions of this section by
corporation, or political subdivision, and the chief admin-
r : j• t 1 . "„e' not held in accordance with the pro- istrative or executive officer of the governmental entity,
ministratl„ rya! ," :.+ttrYttlne +�•, _' is guilty of a misdemeanor of the second may meet in private with the entity's attorney to discuss
icial agent , arts .. " g,,,; t shable as provided in s. 775.082 or s,
pending litigation to which the entity is presently a party
imunity Con, p' ':Vi before a court or administrative agency, provided that
Service Ow » i '1 ; c+ Duct which occurs outside the state which the following conditions are met:
periodically r..wri . j >I . or vitute a knowing violation of this section is a (a) The entity's attorney shall advise the entity at a
stored, n,ar' .)1«3 : . *Iry• of the second degree, punishable as pro- Public meeting that he or she desires advice concerning •
?d through r nc• 'M> Rli r a 775 082 or s. 775.083. the litigation.
r'f ' O wsonever an action has been filed against any (b) The subject matter of the meeting shall be con -
be constru,wt 0' commission of any state agency or authority or fined to settlement negotiations or strategy sessions
257.05(2) p " *r+ joy y or authority of any county, municipal corpo related to litigation expenditures.
document.. t , '+ot -r poht,cal subdivision to enforce the provisions (c) The entire session shall be recorded by a certi
t to. !on Or to invalidate the actions of any such fled court reporter. The reporter shall record the times
"'^ '' XI t • l w s,1on, agency, or authority, which action of commencement and termination of the session, all
i
discusson and proceedings, persons
sow P^ ft violation of this section, and the court P g the names of all
' «'+ ~'••y -. that the defendant or defendants to such
present at any time, and the names of all persons speak
' ilitkrr s n in violation of this section, the court shall ing. No portion of the session shall be off the record. The
,y, ,r OM 4 4 x ■r';tsonable attorney's fee against such court reporter's notes shall be fully transcribed and filed
' , ntay assess a reasonable attorney's fee with the entity's clerk within a reasonable time after the
d hearings awl .' ,•,. : filing such an action if the court meeting.
I appeal. I s -+s y,- 1 .r ,. , •i'.s.i in bad faith or was frivolous. Any fees (d) The entity shall give reasonable public notice of
state or ' AN ,..1, • am ,, v..,41 may be assessed against the individual the time and date of the attorney client session and the
le in the n, r a :f „a ,t •.,, .n of such board or commission; pro- names of persons who will be attending the session. The
meetnut „r'x+I . '...4 . ,r, , +ny case where the board or commission session shall commence at an open meeting at which
ssion, or ,r,r,�', 4 ` O. j •a,• , t:1ce of its attorney and such advice is fol the persons chairing the meeting shall announce the
ice that. .t ., ;or s . , h tees shall be assessed against the indi- and estimated length of the attorney -
ide by the 1.- wit( ' ; ;t. !W ','; -.t .•r or members of the board or commission. client session and the names of the persons attending.
any Matter .� , M ; „• tilt s subsection shall not apply to a state attor At the conclusion of the attorney - client session, the
or she wilt noise .e r r,ro her duly authorized assistants or any officer meeting shall be reopened, and the person chairing the
`
Or such plug. Iva - ; with enforcing the provisions of this section. meeting shall announce the termination of the session.
�rbatinl uv .4d d t:::-: :. ;V l 'n'ver any board or commission of any state (e) The transcript shall be made part of the public
includes th.• +o � y :. aathorit or any agency or authority of any record upon conclusion of the litigation.
y y g y Hist
appeal 1'' girl $ t i t :, „opal corporation, or political subdivision s. 33, c�h. 91 224: s 8 ch. s. 18th 95 -353 h 85-301
503
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H. ATTORNEY /CLIENT SESSION - CLOSED TO THE PUBLIC / `,„?
c) Monroe County v. Holiday Isle, et al
d) Florida Keys Marine, Inc. and Holiday ",'`
Isle Resort & Marina Associates v.
Monroe County, et al. . <"
F: .a:e. ` .'
3:15 PM 1. NSTRUC,'TION MANAGEMENT
Award bid and approval to execute Contract
FC -001, renovation of the Conch Key Fire
Safety Facility to Plantation Construction,
Inc.
. Award bid and approval to execute Contract
TR -001, Phase 1 demolition of Truman School ,•'
to American Atlas Wrecking
A. Approval of Change Order No. 27 -001 -004 to -
1 D.L. Porter Construction's Contract No.
) FB -001, construction for the Big Coppitt
Fire Facility
4. Award bid and approval to execute Contract
0,.... PK -001, construction of the Key Largo Fire
Facility to Rovel Construction, Inc.
M1,
y
Approval to execute Amendment No. 1 to renew .
•
annual services agreement, Contract M -001,
with P8I for threshold inspection, QC test-
ing and subsurface investigation to be effec-
tive from December 22, 1994 to. December 21,
',.. 1995
4 3 :30 PM. J. yANAGEMENT SERVICES ,
.ski Appeal by SeaCoast Airlines of Insurance
requirements c - irements waver denial
Z. 0 F' C l• t orQ
K. MMISSIONERS' ITEMS
4 :00 PM COMMISSIONER REICH - Request from Charles
$. 0 IOW& Kanter for the Board of County Commissioners
assistance in obtaining a county -wide toll -
' free dialing area, and access to modern
computer information services
2. COMMISSIONER REICH - Discussion item -
, Habitat for Humanity
COMMISSIONER REICH -
Approval to attend
• the National Hurricane Conference in Atlan-
tic City, New Jersey, April 11 -14, 1995
' COMMISSIONER REICH - Approval of appoint-
AP. ents of Pamela Martin, Elizabeth Vail and
Mary Boa to the Monroe County Commission on •
f the Status of Women
. COMMISSIONER DOUGLASS - Appointment of Ju-
dy Greenman to the Human Services Advisory
,
kt
Board
s,
5
f
.r
•
• p t,,
• 4
� .. •.. • . — .r.� ... .rv..w�fnmrnrw..+.•. ...:. .... .. ...... .. .. .. ....... ... . ...,._ .. -.. r.T•++'.Mbh }.i _'4^
•
E. TOURIST DEVELOPMENT COUNCIL - CONTINUED '.•,::.
6. Approval of an agreement with USA 800, Inc.
covering Telemarketing Disaster Recovery and
Hardware & Software Maintenance for the five
Chambers of Commerce
7. Approval of authority for Tourist Develop-
ment Council to pursue purchase of computer
hardware, software programming and databank
entry /access independently of county procure-
ment office and procedures
8. Approval of a local major event agreement
with the Key West Business Guild covering
Gay Arts Festival, June 17 -24, 1995, in an
amount not to exceed $44,000, FY 95, Third
Penny
9. Approval of a local major event agreement
• with Association for Tourism Development
• covering Fantasy Fest '95, October 20 -29,
1995, in an amount not to exceed $96,000, FY
95, Third Penny
10. Approval of a local major event agreement
with Key West Festivals Inc. covering Heming-
way Days '95, July 17 -23, 1995, in an amount
to to. ,xce90,441,400, FY 95, Third Penny /C f1/
11 :00 AM F. OUNDI BOA 5 ed
Discussion of Monroe County Tourist Develop -
1 ment Council's request for proposal for
• beach cleaning and maintenance for a period
n of three years which was awarded to Univer-
sal Beach Cleaning Company Manuel B.
Garcia, Attorney representing Steve
• Buckaloo, president of S.B. Painting i Compa-
ny
Discussion of installation of electric power
on No Name Key with County assistance in
obtaining necessary permits and funding -
Aldona A. Siczek and Ruth E. Eaken
r 11:30 AM G. .e •'I OF GOVERNORS /BOARD OF COUNTY COMMISSIONERS
1 Approval of the establishment of the posi-
tion of Fire- Rescue Coordinator, Paygrade
411
1 :30 PM H. RNEY /CLIENT SESSION - CLOSED TO THE PUBLIC
The attorney /client session will be confined
to discussion of settlement negotiations and
strategy sessions related to litigation
expenditures in the following cases:
a) Marathon Air Services v. Monroe County
b) Monroe County v. Post, Buckley, Schuh i
Jernigan, Inc.
4
•
o Z.- sCCsaav!:x
r , , t >,
CCIi
•
AGENDA
MONROE COUNTY BOARD OF COUNTY COMMISSIONERS
Any person who wishes to be heard shall provide the Clerk with t "n�
his or her name and residence, and agenda item on which he or she
wishes to be heard. An individual has three minutes and a person
representing an organization has five minutes to address the '
Board.
JANUARY 17, 1995 MARATHON GOVERNMENT CENTER
TIME APPROXIMATE SPECIAL MEETING NOTES
10:00 A.M. CALL TO ORDER
INVOCATION • f
SALUTE TO FLAG
A. ADDITIONS, CORRECTIONS, DELETIONS
B. Joint Meeting of the Monroe County
Board of County Commissioners, the
Monroe County Planning Commission
and the State of Florida, Department
of Community Affairs to discuss the
proposed changes to the Principles
For Guiding Development
ADJOURNMENT
•
•
•
.n,
ilbue 2
3 MONROE COUNTY COMMISSION
4 ��
5 ATTORNEY - CLIENT SESSION `�
/19N
Y
6 January 18, 1995
7
8
9
10
11
12
13
14 As reported by Marc Nichols, Registered
15 Professional Reporter and Notary Public, State of Florida
16 at Large, at 500 Whitehead Street, Key West, Florida;
17 January 18, 1995, commencing at 1:30 p.m.
18
19
20
21
22
23
24
25
NICHOLS & HARDY (305) 296 -2468
2
1 A P P E A R A N C E S : 2 Mayor Shirley Freeman
Mayor Pro Tem Jack London
3 Commissioner Keith Douglass
Commissioner Wilhelmina Harvey
4 Commissioner Mary Kay Reich
County Administrator Jim Roberts
5 County Attroney Randy Ludacer
County Clerk Danny Kolhage
6 County Engineer David Koppel
Community Services Director Peter Horton
7
Ralf Brooks, Esq.
8 Al Frigola, Esq.
James Hendrick, Esq.
9 Hugh Morgan, Esq.
Wayne Smith, Esq.
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
NICHOLS & HARDY (305) 296 -2468
3
1 MAYOR FREEMAN: Monroe County Commission will
2 come to order. We are about to go into private
3 session. Who leads this?
4 MR. HENDRICK: At this time we would ask that
5 you announce the commencement and estimated length
6 of this session and the names of the persons
7 attending. This session will be comprised of three
8 subsessions and during each one of those subsessions
9 the personnel that you have present will change
10 somewhat so probably in an abundance of caution,
11 each time we enter a new phase of the proceeding, we
12 would go, we would again note who's present and
13 limit the attendance only to those who are essential
14 to that particular part of the proceeding. It would
15 be appropriate to announce the commencement and the
16 fact that this particular first part of the session
17 will probably take no more than twenty to thirty
18 minutes.
19 MAYOR FREEMAN: The whole thing should take no
20 more than an hour so let's try for fifteen minutes,
21 okay? We are about to go into private session. The
22 persons who will be in the private session which
23 have to be announced are --
24 MR. HENDRICK: The members of the Board of
25 County Commissioners; myself, Jim Hendrick; Randy
NICHOLS & HARDY (305) 296 -2468
4
1 Ludacer, county attorney; Jim Roberts, county
(aw 2 administrator; Danny Kolhage; our court reporter;
3 Peter Horton in his capacity as community services
4 director and code enforcement capacity; attorney Al
5 Frigola; attorney Ralf Brooks; myself, James
6 Hendrick.
7 MAYOR FREEMAN: Be seated.
8 MR. HENDRICK: With the mayor's indulgence we
9 would like to start with the code enforcement issues
10 related to Holiday Isle, those are items on the
11 agenda, C and D of item H on your agenda. The
12 reason these are separate is that Monroe County
13 versus Holiday Isle, et al. is a generic reference
14 to a series of cases which are in the nature of
15 appeals and code enforcement. Those cases were
16 consolidated with the land use case before Judge
17 Payne over two years ago and the judgment was
18 entered in favor of the county. An appeal was
19 entered, the appeal was denied and we won that
20 aspect of the case.
21 However, the related code enforcement cases
22 have not been tried. Rather, they were referred to
23 a mediator, Judge Lester. Offers were received on
24 those and attorney Al Frigola will represent some of
25 those. Additionally there are pending appeals in
NICHOLS & HARDY (305) 296 -2468
5
1 Florida Keys Marine, Inc. and Holiday Isle and
( 2 Resort Associates versus Monroe County. Those
3 involved the same individuals or related entities to
4 the Holiday Isle. They are not in the same
5 procedural posture because those cases are still
6 ongoing. Mr. Brooks has been representing the
7 county in those. With your permission, Madam Mayor,
8 I'd like to turn this proceeding over to Al Frigola
9 to dispose of these matters pursuant to contract
10 with the county.
11 MAYOR FREEMAN: Mr. Frigola?
12 MR. FRIGOLA: Madam Mayor, members of the
13 County Commission, we started a court ordered
14 mediation in these proceedings and we arrived at a
15 point wherein it was deemed advisable to continue
16 the mediation until we could have the opportunity to
17 discuss the case with you. You are the client. We
18 have been acting through Mr. Horton and Marty
19 Arnold. Generally in all the other cases we have
20 settled, this is the first case in which we actually
21 appeared before the client for their client's input
22 into the settlement of these phases.
23 Heretofore, we have arrived at a figure -- I
24 say we -- Marty Arnold, Peter and I, we will present
25 it to you for approval and generally it was approved
NICHOLS & HARDY (305) 296 -2468
6
1 and the case was settled. I must interrupt myself
(10, 2 here to advise you that although this is a closed
3 session, the rules regarding mediation and court
4 proceedings apply and that is absolute
5 confidentiality. I don't know what your ground
6 rules are as far as you individual commissioners are
7 concerned about proceedings but on top of whatever
8 they may be, nothing that's discussed here may be
9 discussed with anybody outside of the room.
10 MR. HENDRICK: Can I pause for a second? I
11 apologize for interrupting his presentation but that
12 reminds of something I should have said at the
13 onset, that in addition to the restrictions on
14 mediation and anything said here, anything said in
15 mediation process is off the record, can't be used
16 against any of the participants. However, at the
17 conclusion of this proceeding, this entire matter
18 will be transcribed and it will become eventually an
19 open matter, open record, so be mindful of what you
20 say now.
21 We are not in a completely closed environment.
22 Eventually the public will see every word published
23 and spoken at the proceeding. As to attorney - client
24 privilege, these proceedings are attorney - client
25 privilege. The record should now reflect attorney
NICHOLS & HARDY (305) 296 -2468
7
1 Hugh Morgan and attorney Wayne Smith have joined the
(ise 2 proceedings, that this proceeding is privileged.
3 However, attorney - client privilege can be waived.
4 I would strongly encourage each one of you and
5 legally advise you not to discuss with any person
6 what transpires here today because you may
7 inadvertently waive attorney- client privilege. It's
8 just as if you were sitting as an individual client
9 in mine or Mr. Frigola's or our offices discussing a
10 very confidential matter and you should treat it as
11 such. This is attorney - client privilege. Nothing
12 we say here will be used against us in the process
13 of mediation. Bear in mind the attorney - client
14 privilege can be waived by what you say and your
15 conduct, thank you. Excuse me for interrupting.
16 MR. FRIGOLA: Quite all right. Now where we
17 were in the mediation, to give you a little
18 background about the nature of the claim, we have
19 the numerous code enforcement orders imposing liens
20 on the property of the various defendants
21 collectively known as Holiday Isle. There are
22 several different parcels under several different
23 ownerships. For the purposes of mediation, we
24 attempted to reach a settlement based on a lump sum
25 and as an indication of our starting point, county's
NICHOLS & HARDY (305) 296 -2468
8
1 starting point, the total fines in all of these
(1, 2 cases although they vary in each case as to the
3 number of days and the amount of per diem applied,
4 total approximately a million and a half dollars at
5 this point.
6 Another thing to remember is that even though
7 they are in mediation, nothing can be finalized
8 because a compliance has not been achieved by
9 Holiday Isle. That is, these items on which they
10 were fined, buildings without permits, so forth,
11 have never been brought into compliance; that is,
12 they have never removed them which they could have
C le 13 done early on or obtained the necessary permits
14 after the fact to come into compliance.
15 So we're dealing with a continuing fine as we
16 speak, of approximately a million and a half at this
17 time. The offer of Mr. Tobin in total encompassing
18 all of these cases was seventeen thousand five
19 hundred dollars. Mr. Arnold and I, subject to your
20 approval obviously, had offered two hundred fifty
21 thousand dollars in settlement. We had concluded
22 between us again subject to your approval that the
23 bottom line would be two hundred thousand dollars.
24 That is where we stand at this point as far as
25 mediation process is concerned.
NICHOLS & HARDY (305) 296 -2468
9
1 After this meeting, Mr. Hendrick and I will
2 advise Judge Lester to reconvene the mediation and
3 we will go from there. Let me say a few things if I
4 may to you regarding the fine and the amount of
5 fines that we, meaning I in your behalf and Mr.
6 Arnold, unlike the run of the mill code enforcement
7 case, which may vary from an absentee vacant lot
8 owner who has trash dumps on the property and
9 doesn't know about it, to the man who builds a tiki
10 hut and doesn't even realize he has got to get a
11 permit until after he has been cited. Each one of
12 these violations involved construction that has
13 derived an economic benefit to Holiday Isle over
14 these years. For example, they constructed a tiki
15 hut which has been rented out and from which they
16 are receiving rental income all this time.
17 The fine could have been abated by removal of
18 the tiki hut at any time but they have taken a
19 position that they are willing to pay the fines to
20 continue to operate business by not removing them
21 and with the anticipation, I expect that somehow
22 these fines will either disappear or be reduced to
23 seventeen thousand five hundred dollars in which
24 case it's very economically in their best interests
25 to delay coming into compliance or removal of the
NICHOLS & HARDY (305) 296 -2468
10
1 offending violations. Now let me give you a little
(„„ 2 bit more input into this case.
3 In the mortgage -- in the code foreclosure
4 actions which I have brought in three of these
5 cases, I did a very time - consuming and indepth study
6 of the mortgage and mortgage financing of the
7 various Holiday Isle properties. There are several
8 mortgages; they have been modified, by modification
9 agreement, extended by extension agreement and every
10 year there's a renewal and extension.
11 I don't want to go into the basics because it
12 would take forever to explain what a future advance
(ime 13 provision is in the mortgage but basically what it
14 says is you cannot -- this mortgage is good for one
15 hundred thousand dollars and an additional hundred
16 thousand dollars if the lender is willing to give
17 it. That is a future advance. The law prohibits --
18 doesn't prohibit future advances but what it does
19 say, there comes a point in time where a second
20 lienholder position is imperiled because of these
21 future advances so in my work I determined that
22 there was a gross violation of the future advance
23 clauses and I brought in Sun Bank who owns the
(
24 mortgage on these properties, as a defendant saying
25 that our lien is superior to their mortgage. That
NICHOLS & HARDY (305) 296 -2468
11
1 got a lot of attention.
(11, 2 As late as a week ago I received a call from
3 counsel for Sun Bank who asked if the county
4 commission would consider them bonding out the
5 liens, that is, putting up surety that in the event
6 of an adverse foreclosure against Holiday Isle, that
7 those monies would be available to meet the fines
8 and thereby secure our lien at the same time. This
9 they want Holiday Isle to do because their mortgage
10 is imperiled and they want that endangerment
11 removed.
12 I said I couldn't even talk to the County
13 Commission about putting up a bond, bonding it out
14 because of the continuing nature of the fines, one;
15 and two, we would have to provide a million and a
16 half dollars plus sufficient additional coverage to
17 where we could re- establish approximately when the
18 phase would be resolved, these additional fines that
19 are accumulating daily.
20 In effect, I rejected his offer because of the
21 reason of the continuing fines. He has brought a
22 motion which is now pending, has not been heard, to
23 ask the court to impose a bond by Holiday Isle and
24 Florida Keys Marinw for release of the lien. Now I
25 mention -- I'm going to with your permission, I'm
NICHOLS & HARDY (305) 296 -2468
12
1 going to strenuously resist that on the grounds that
(be 2 the continuing violations and ask that we don't have
3 a handle, if we don't have the continuing
4 violations.
5 I doubt if the court has the power to order a
6 release subject to a surety but nevertheless I
7 intend to resist that motion. I anticipate being
8 successful. It will put Holiday Isle under a
9 tremendous amount of pressure from Sun Bank to
10 resolve this dispute. That's where we stand now.
11 Anybody have any questions? Do you want to start
12 somewhere?
13 MAYOR FREEMAN: What action or what decisions
14 do you want from us?
15 MR. FRIGOLA: I think we are in concurrence.
16 Because of the court proceedings and the mediation
17 we would want authority to settle for no less than X
18 number of dollars.
19 MAYOR FREEMAN: On the violations as of some
20 date in the past.
21 MR. FRIGOLA: X number of dollars to settle
22 all the cases with the condition that they bring the
23 property into compliance by X date. Now I
24 understand the impediment to their obtaining the
25 after - the -fact permit has been removed. Jim would
NICHOLS & HARDY (305) 296 -2468
13
1 know what the time table is, how soon they could get
(he 2 the permits.
3 MR. HENDRICK: Let me briefly address that
4 issue and also flush out some other issues and
5 considerations. Although I have already told you
6 the other side of it in previous open record
7 discussion, you should be reminded of what those
8 other considerations are. The court in this type of
9 case, has heard this case, the land use case a
10 couple years ago and although the court ruled in our
11 favor at the conclusion of the plaintiff's case. We
12 did not have to put on any evidence.
13 We argued they utterly failed to prove their
14 case, but the court was troubled by what was
15 perceived to be the inequities, although we were
16 entitled to win by law, the court was bothered by
17 the fact that the property owner had nowhere to go
18 to get a permit during this moratorium and that's
19 why the court referred us to mediation, under one
20 construction and the one we are advocating the fine
21 is a million and a half. Under a different
22 construction because there was a stay order entered,
23 the fine is four hundred thousand.
24 I won't get into all the nuances of that,
25 except in either case, it is a huge amount of money
NICHOLS & HARDY (305) 296 -2468
14
1 and more than you would instruct us to go after any
2 way. The other thing I wanted you to know, as we
3 previously discussed, the courts have some concern
4 about the enormity of the fine and both of us know
5 that you are not going to direct us to try to get a
6 half million dollars or four hundred thousand or
7 anything like that from these people so we have to
8 look at the statutory purpose of the fine which was
9 spelled out in the statutes and that basically has
10 to do with enforcing codes and ordinances. The code
11 enforcement board itself, would it be hearing this
12 today, it would consider the gravity of the
13 violation and the Peter is here to advise you
14 further if you want to know, if it were an inocuous
15 thing like putting in a recycling facility,
16 something we should certainly encourage would have
17 granted a permit for had there been a permit
18 mechanism in place, or if it is the two story tiki
19 hut facetiously called the tiki hut in the sky,
20 where they could correct the violation and any
21 previous violation so those are some of the things.
22 The Supreme Court in the Kelco case decided that 109
23 Supreme Court 2918 -- we are pausing for a moment
24 while an unauthorized entrant is removed by the ever
25 diligent clerk of court. The Kelco case, the
NICHOLS & HARDY (305) 296 -2468
15
1 purpose of probihition on excessive fines which is a
(160 2 constitutional argument being raised by the Holiday
3 Isle defendant is to prevent the use of fines as an
4 improper source of revenue for -- from raising
5 revenue in an unfair way.
6 Although we could look at these fines as a
7 large revenue - raising device, the court told us not
8 to look at it from that standpoint, punishment. In
9 other words, penalty is a perfectly legitimate way
10 of looking at it as is forcing compliance and as
11 counsel has already told you, we need to condition
12 whatever settlement we make on a proper issuance of
13 the permits for anything that's there, get a permit
14 after the fact or you take it down. So what we are
15 looking for from you today is a monetary amount,
16 what is the amount that when we go after other
17 people, major violators, we are talking about today
18 for example, we had an example of that, we can say
19 with pride and with total evenhandedness, you commit
20 a major violation, it's the policy of this county to
21 punish you, to make it more expensive not to comply
22 than it is to comply and to set a standard. Do not
23 look at it as a revenue device.
24 On the other hand we also realize we can't be
25 too lenient in this approach. Mr. Frigola and I
NICHOLS & HARDY (305) 296 -2468
16
1 have our own ideas what this amount should be but
(he 2 really as the policy setters of this county you are
3 in a far better position to state what that position
4 should be and to give us some general guidelines.
5 Basically, to answer Mr. Douglass' question in a
6 roundabout fashion we are asking for a range we can
7 negotiate.
8 COMMISSIONER LONDON: Madam Chairman.
9 MAYOR FREEMAN: Yes, sir.
10 COMMISSIONER LONDON: Could we ask you two
11 what you think those figures might be, let us know
12 what your thoughts are?
4 100, 13 MR. HENDRICK: Let Al tell you what he has
14 told the mediator our position is.
15 MR. FRIGOLA: We have told the mediator that
16 our initial offer to them was two hundred fifty
17 thousand and that our rock bottom is two hundred
18 thousand. Now in arriving at this figure we had to
19 take into account the amount of the administrative
20 costs and the legal fees incurred to fight this
21 case. By the appeal they have dragged it through,
22 they have used every avenue, they are entitled to,
23 but it's cost the county money. Also, because this
24 is an economic issue more than a rights issue, that
25 is, the violations were incurred for purposes of
NICHOLS & HARDY (305) 296 -2468
17
1 raising revenue and income, we feel that a bottom
1L W 2 line of two hundred thousand is very, very
3 reasonable for this settlement. We also have to
4 consider precedent and we weigh this against other
5 major violations. It should not be -- we should not
6 come across as being weak or a slap on the wrist but
7 use a figure that realistically reflects what effort
8 the county has had to go through, the time and
9 expense and manpower hours to enforce a code.
10 MAYOR FREEMAN: Mr. Frigola, what figure are
11 you using as the county's expense?
12 MR. FRIGOLA: I think Mr. Arnold mentioned
13 figures to me. I don't have them before me. I know
14 we probably all have an idea of Mr. Hendrick's fees
15 involved in this case.
16 MR. FRIGOLA: Maybe Mr. Horton can tell us
17 from an administrative standpoint how many thousands
18 of man hours have been involved.
19 MAYOR FREEMAN: You don't have to go to the
20 podium because the recording is being done right
21 over here.
22 MR. HORTON: I am here now. For the record,
23 Peter Horton, director of community services, code
(ww 24 enforcement department of the county. I'd like to
25 answer your question directly and I'd like to expand
NICHOLS & HARDY (305) 296 -2468
5
18
1 upon that.
2 MAYOR FREEMAN: Expand as quickly as possible.
3 We are already running out of time.
4 MR. HORTON: Yes, ma'am, my personal estimate
5 is Monroe County has expended in excess of a hundred
6 fifty thousand dollars in personnel costs and legal
7 fees, both directly and indirectly in this case.
8 Please keep in mind that this is a situation that
9 goes back 1988, '89. I was at several of the code
10 enforcement board hearings when these cases came up.
11 I was director of code enforcement for a good part
12 of the time when these cases came up, talking about
k or 13 in excess of a dozen cases, talking about thirty
14 buildings, and during the course of these many, many
15 hearings before the code enforcement board and their
16 petitions for rehearing and their appeals, I can
17 remember many times where both or either the
18 attorney for the board, I'm sorry, the attorney for
19 Holiday Isle or the operating partners of Holiday
20 Isle approached the code enforcement board and one
21 point in time early in proceeding when he was fined
22 he made a solemn pledge to the board that he would
23 not build any more buildings on the site illegally.
24 But he violated that pledge and more of these
25 buildings came into the Holiday Isle.
NICHOLS & HARDY (305) 296 -2468
4
19
1 We are talking about relatively minor
(mple 2 structures that very easily have been removed. The
3 other side of compliance we forget about in code
4 enforcement, the respondent will say I can't get
5 building permits for it; you can come into
6 compliance by simply removing it; he did not remove
7 these structures; at this time he put wheels on them
8 and called them temporary, fought at the board that
9 way.
10 We are talking about revenue - producing
11 structures, talking about the water sports building
12 that he built right on the beach. Talking about at
13 least one he can't call the beer hut, booking
14 buildings for trips to the back country and fishing
15 trips, kiosks to sell sun tan lotion, all of which
16 were revenue - producing and these attorneys make a
17 very, very valid point at one point, in time the
18 code enforcement proceedings, the code enforcement
19 board took great pains to determine what these
20 buildings would make Holiday Isle on a daily basis
21 and that's what they set the fine to. Again there
22 are many buildings but the vast majority of the
23 buildings could have been removed very easily. He
24 did not remove them. He allowed them to make money
25 and in direct violation of the code plus unfair
NICHOLS & HARDY (305) 296 -2468
20
1 competitive advantage to any other resort or
C le 2 business in the area.
3 MAYOR FREEMAN: Thank you. I would like to
4 move that we set the fine at the absolute maximum
5 that we can collect.
6 MR. FRIGOLA: Are you speaking in terms of a
7 mediation and settlement or go for it all with the
8 foreclosure proceeding when you say maximum?
9 MAYOR FREEMAN: Mr. Hendrick, you were
10 mentioning that we had to take many, many things
11 into consideration, what would be the maximum
12 reasonable fine.
13 MR. HENDRICK: Remembering that we are in
14 mediation process and essentially have told them
15 that we would take two hundred thousand dollars, two
16 fifty and imply that we would take two hundred
17 thousand dollars, that would be the maximum figure.
18 Let me just add one other thing to the record.
19 MAYOR FREEMAN: That's the maximum figure set
20 by the attorney?
21 MR. HENDRICK: If we go to court we will ask
22 for every penny, whatever that may be. Remember, we
23 are in court; on the majority of the cases we are in
24 two proceedings simultaneously. One set of
25 proceedings I am attorney of record with the county
NICHOLS & HARDY (305) 296 -2468
21
1 attorney's office. Old appeals are going on, the
(Ilre 2 liens are not arguably final; that's the position
3 Tobin is taking, and that validity has not finally
4 been resolved and the cases that Mr. Brooks is
5 handling which are two relatively minor cases,
6 really tens of thousands of dollars in accumulated
7 fines, they are definitely in that posture but
8 there's hundreds of thousands of dollars out there.
9 The question is what amount less than that
10 amount are we going to take? Mr. Frigola has
11 offered to take two - fifty, implied we will go to
12 two; there is some sentiment for a lesser figure
(6, 13 because I have heard it in dialogue. I have no
14 reason to dispute Peter's estimate of a hundred
15 fifty thousand dollars, much of which is my firm's
16 attorneys' fees and the time that the county
17 attorney spent in defense of the case. In all
18 honesty that was not in the code enforcement case.
19 That was in defense of a very hard fought land use
20 case. I do not believe that you should penalize
21 them for exercising their constitutional right to
22 resist the county's moratorium which is anything but
23 an open and shut case.
24 It was a very hard - fought case, had legitimate
25 grounds and to the extent that those fees of ours
NICHOLS & HARDY (305) 296 -2468
22
1 which we represente" the case on multi -day trial,
2 long period of disc very, part of that time and the
3 subsequent appeal, that really could not be fairly
4 charged as an element of the code enforcement appeal
5 process. I guess what we are saying, we are in the
6 negotiating process, mediation always is, you take
7 less than you want, the other side gets a lot more
8 than it's willing to give.
9 COMMISSIONER LONDON: I'd like to ask Mr.
10 Hendrick what the lowest bottom line figure should
11 be and then I would suggest if he gives us that
12 figure that we direct him to negotiate up from there
4;aw 13 as long as we suggest that what bottom line should
14 be, because we are not necessarily going to get this
15 amount of money.
16 MAYOR FREEMAN: Mr. London, just a minute, the
17 question before you is what's the maximum amount.
18 MR. HENDRICK: The maximum amount --
19 MAYOR FREEMAN: That we could reasonably get.
20 MR. HENDRICK: The maximum amount that we
21 could reasonably get if Al -- forgetting the fact
22 that we are in mediation and we are trying to settle
23 this thing, if we were to look at it as a revenue
(opor 24 device, knowing we would be appealed all the way to
25 the Supreme Court?
NICHOLS & HARDY (305) 296 -2468
23
1 MAYOR FREEMAN: Not as a revenue device, you
(Ime 2 have already said we don't do that. Being
3 reasonable --
4 MR. HENDRICK: The minimum, although you have
5 not asked for that, the minimum --
6 MAYOR FREEMAN: Mr. London asked for that.
7 MR. HENDRICK: Bearing in mind we have other
8 individuals here who have commited similar or
9 greater acts, I would be hard pressed to stand up
10 and recommend a figure that doesn't impress the
11 average citizen as a very strong fine. I would like
12 to get -- and bear in mind, Mr. Frigola has his
13 views of this, I may have different views of it, he
14 is the chief Indian on this, I'm only attending --
15 MAYOR FREEMAN: I'm ready to make a motion.
16 COMMISSIONER LONDON: Could I hear the figure,
17 Mr. Hendrick?
18 MR. HENDRICK: I think that a six figure
19 settlement is something that we could be proud of.
20 I think we would be a laughing stock if it was less
21 than fifty. I mean, those are my personal views. I
22 would be most happy with something within the six
23 figures.
24 MR. DOUGLASS: I have a couple of concerns and
25 I will be brief if I can. I think we agree that the
NICHOLS & HARDY (305) 296 -2468
24
1 fine is excessive. One discrepancy I found, in this
(111, 2 report that I have in Mr. -- he has offered
3 forty -one thousand. Are you aware of that?
4 MR. HENDRICK: Yes, the difference between
5 what Mr. Frigola told you and what you have before
6 you is that was the settlement offer in the case Mr.
7 Brooks is in which was in an earlier stage of
8 proceeding.
9 MR. DOUGLASS: We are looking at this
10 collectively or not?
11 MR. FRIGOLA: Collectively, I might add in one
12 case where we did grant a release and this was a
13 relatively minor infraction, I am holding the sum of
14 twenty -four thousand, approximately twenty -four
15 thousand dollars in my trust account. I released
16 the lien and held the twenty -four, subject to the
17 termination of that case.
18 MR. DOUGLASS: Couple other concerns I have.
19 We have some culpability here too, I believe, we
20 drug our feet concerning issuance of permits, where
21 we did not issue permits back in 1988. Secondly, as
22 I mentioned, I have a hard time penalizing for
23 things like -- and I guess the bottom line that
24 falls, is can there be some kind of a solution
25 dollar -wise and verbally where assume for a second
NICHOLS & HARDY (305) 296 -2468
25
1 and maybe some of you are going to snicker at this,
(or 2 assume there's no future guarantee -- on behalf of
3 the operation, if they choose, is there any way we
4 can cover a solution that will hopefully keep this
5 from happening again or we are going to be back here
6 in two years just because that's the way business is
7 done?
8 MR. FRIGOLA: If they don't comply with the
9 building code and make the appropriate application
10 for a permit we are going to be back again. If they
11 are going to continue that attitude, we can't
12 guarantee. I know in one hearing Mr. Roth bragged
13 that he made eleven million dollars a year from
14 their operation and can afford the fines. I'm just
15 saying that's what came out of his mouth. Let me
16 add one other thing.
17 When you crunch numbers here, in addition to
18 whatever the county has into it, there is an
19 entitlement of attorneys' fees in there and under my
20 contract with the county I am suggesting with the
21 figures that you got from Mr. Horton and my fees,
22 two hundred thousand dollars would do nothing but
23 cover expenses. It's not going to put a penny in
24 the county's pocket book; there's not going to be,
25 quote, a penalty involved. We are just recovering
NICHOLS & HARDY (305) 296 -2468
26
1 costs.
t rir 2 MR. DOUGLASS: What I am alluding to, maybe
3 this is a question for Mr. Horton, is there anything
4 that the county did that really made it difficult
5 for our adversary to get the permits that he needed
6 to do or was this strictly -- I'm going to play by
7 my own set of rules. I had a hard time with finding
8 why they were --
9 MR. HORTON: If I recall correctly, he was
10 under an A triple C designation. The majority of
11 these violations were commited by Holiday Isle,
12 therefore he could not get permits, therefore the
13 compliance would be to remove the offending
14 structures. Now I am not the one to comment on
15 whether the county planning department or growth
16 management division was culpable as far as his
17 ability to get permits or not able to get them
18 timely because that was debated during the course of
19 the appeal but I think the bottom line was we won
20 all those cases. We won those cases.
21 MR. DOUGLASS: That may be true and I am not
22 arguing that. I am just trying to say -- I'm trying
23 to get inside the head of our adversary. It's not
24 just a question of recouping losses or costs. It's
25 a question of what is just.
NICHOLS & HARDY (305) 296 -2468
27
1 MAYOR FREEMAN: Well, I would like to answer
2 that. What is just here is what would bring this
3 property under compliance and let our code
4 enforcement and our county staff go ahead and do the
5 business for the rest of the county. This has taken
6 an extraordinary amount of time; this flies in the
7 face of law - abiding, code - abiding citizens and I
8 would like for this fine to be set at a high enough
9 amount so that this is stopped and is not looked
10 upon as a game or just another cost of business.
11 So therefore I make a motion that we go for
12 the two hundred fifty thousand dollar fine. Is
13 there a second? Would someone like to -- I'll call
14 the second again. Is there a second to my motion?
15 Is there a second to my motion? Okay, that motion
16 fails for lack of a second. Do we have another
17 motion?
18 MR. ROBERTS: May I make one comment? One of
19 the things, whatever number you folks settle on, it
20 is very important in terms of us being able to
21 enforce the laws that we pass here is for whatever
22 the final solution is to be deemed a serious
23 solution by the public, we are -- it is AB resort
(00,1, 24 now, all sorts of court proceedings with someone who
25 has snubbed his nose at the ordinances and the laws
NICHOLS & HARDY (305) 296 -2468
28
1 of this county and we are proceeding as vigorously
(00.0 2 as we can.
3 It seems to me that given the scope of what's
4 been at issue here for six years, that we have to
5 make some kind of a substantial statement. That, of
6 course, is a relevant term that you can all decide
7 on but I would really hate to go out and say to the
8 people who have to enforce these laws, you know, it
9 doesn't look as serious as we thought it was and all
10 the other folks out there who may not want to get
11 the permits and who may not want to comply with the
12 laws aren't going to take this as seriously as they
C ie 13 should. That is our concern from an enforcement
14 point of view.
15 MR. DOUGLASS: My claim is this alone isn't
16 going to stop them. It will go a long way to it. I
17 think somewhere there needs to be a meeting of the
18 minds. I also think there's a difference between
19 Key Largo Bay Resort and Holiday Isle, some people
20 would disagree.
21 COMMISSIONER LONDON: I think there's one
22 thing to do, what happened at Holiday Isle and quite
23 another thing what is happening with Mr. Boulis,
24 they are not the same and how many of these large
25 resorts are we talking about? There's only two or
NICHOLS & HARDY (305) 296 -2468
29
1 three of them that we have had these problems with
C ie 2 so I think your point as far as taking this matter
3 seriously is well taken but there's probably only
4 two or three resorts in the entire county that could
5 even begin to pay the kinds of monies we are
6 contemplating here. What I think we might do as has
7 been suggested by Mr. Hendrick with all due
8 deference, and Mr. Frigola, I think, I can ask this
9 question, Mr. Frigola, are you going to benefit on
10 the basis of this settlement? You are going to get
11 a percentage; aren't you?
12 MR. FRIGOLA: Yes, I do.
(thow 13 COMMISSIONER LONDON: I am more inclined to
14 take the figure Mr. Hendrick suggested and use that
15 as a basis for negotiations saying we would take a
16 minimum of one hundred thousand dollars and direct
17 Mr. Hendrick to go and negotiate what he thinks is
18 the best figure he can negotiate and then come back
19 to us and let's see if we can accept that figure.
20 There's no reason this has to be done right now
21 today. Isn't there a mechanism where you can
22 negotiate with them and ask if this figure is
23 acceptable and we can sign off on it or not?
24 MR. HENDRICK: Well, your attorneys can do
25 whatever you direct us to do and I would again defer
NICHOLS & HARDY (305) 296 -2468
30
1 to Mr. Frigola on that. I asked him what his out of
2 pocket expenses were right now. He doesn't have a
3 figure now. He is well into twenty thousand or more
4 just for his actual billing type fees, aside from
5 the aspect of a contingency fee recovery.
6 I would like to address two matters. One was
7 the mayor's concern about compliance. I think that
8 is a -- that's what this whole thing is about, just
9 to get compliance. Whatever we agree on a fine, the
10 compliance must be an additional factor. Let's not
11 forget that the property owner is going to have to
12 come into compliance over and above the figure we
13 settle on. This involves tearing the building down
14 which is unlikely or getting after - the -fact permits
15 so you're going to get additional fees there.
16 As far as his being a good citizen, these are
17 '89 offenses to the best of my knowledge and I will
18 again defer to Peter on this, since this case
19 concluded a couple of years ago, we have had no
20 problem of Mr. Roth and any of his enterprises. He
21 has been a model citizen and I think he was getting
22 some unsuccessful or incorrect advise on the
23 direction he should take and I don't believe that he
(tme is anywhere near the scofflaw that we have seen
25 elsewhere in this county. There's a distinction to
NICHOLS & HARDY (305) 296 -2468
31
1 be made that compliance will be had separate and
(pie 2 apart from the fine.
3 MR. FRIGOLA: If I could mention one more
4 thing, I'd like to make a -- give you a little bit
5 more perspective as to how we have been doing these
6 fines and what we have been settling for. We had a
7 case of tree trimming at the Circle K on the
8 highway. We got in excess of twenty thousand
9 dollars. We had a violation at a trailer park,
10 trailers were installed without permits, they came
11 into compliance, we got forty -two thousand dollars.
12 This is from judges, their decision.
13 Judges, of course, look at it from the
14 standpoint of that's the fine; they violated the
15 law; the fine is going to be imposed. We are
16 talking of course, about settlement. When we are
17 talking about fifteen violations or more on eight
18 separate properties, I think that a fine of one
19 hundred thousand dollars if you would break them
20 down per violation, it doesn't -- they made more
21 money in renting it on the tiki hut than the hundred
22 thousand dollars.
23 MAYOR FREEMAN: I would agree with that.
24 MR. FRIGOLA: I think it's very, very low and
25 you're going to set a precedent.
NICHOLS & HARDY (305) 296 -2468
32
1 MAYOR FREEMAN: You think it would be a low
(Ible 2 precedent. Commissioner Reich would like to speak.
3 COMMISSIONER REICH: There is something I
4 would like to ask Commissioner London. Are we
5 saying minimum hundred thousand dollars, minimum
6 hundred thousand dollars plus compliance?
7 COMMISSIONER LONDON: Yes.
8 COMMISSIONER REICH: All right, I'll second
9 that. Again, I understand and I keep hearing
10 attorneys telling me this should not be a punitive
11 situation. I know a lot of you are familiar with
12 Holiday Isle, so am I, I live up there. They trying
dr
13 to get permits and couldn't a lot of stuff was done
14 wrong in the beginning. They tried to get permits
15 and were refused so I will second Commissioner
16 London's suggestion.
17 COMMISSIONER LONDON: I just threw it out.
18 COMMISSIONER REICH: Then I will make a
19 motion.
20 COMMISSIONER LONDON: If you're going to make
21 a motion may I suggest that we direct counsel to
22 negotiate what their best figure would be, what
23 would be the minimum.
24 MR. FRIGOLA: What I am looking for is the
25 bottom line settlement. I'm sure I have the
NICHOLS & HARDY (305) 296 -2468
33
1 authority to attempt to get more.
(impe 2 COMMISSIONER LONDON: Sure.
3 MR. FRIGOLA: I want the bottom line if it's
4 not agreeable to pay the bottom line, we are at an
5 impasse and we go to trial and we go to foreclosure.
6 COMMISSIONER LONDON: And that changes
7 everything.
8 MAYOR FREEMAN: Do you want to make that
9 motion?
10 COMMISSIONER REICH: I just did, one hundred
11 thousand dollars, bottom line plus compliance.
12 MAYOR FREEMAN: Is there a second?
(ribW 13 COMMISSIONER LONDON: I'll second.
14 MAYOR FREEMAN: Under discussion?
15 COMMISSIONER HARVEY: Yes, one thing that has
16 annoyed me for years and I have spoken about this
17 before directly and indirectly is when anyone hires
18 an attorney we usually pay them by the hour. I
19 think it's most, most distasteful that in this case
20 of enforcement that we pay the attorneys according
21 to what the fine, the penalty is. To me, that's
22 disgraceful. Why can't we know about how many hours
23 were spent and a bill be presented for that, sir?
(low 24 MR. FRIGOLA: If I may answer your question,
25 there's a double side to that coin. I have a
NICHOLS & HARDY (305) 296 -2468
34
1 contingent fee and I get paid on a percentage of
(le 2 what I collect but if I don't win I don't get paid,
3 so --
4 COMMISSIONER HARVEY: You are not a salesman,
5 you are a professional man, sir.
6 MR. FRIGOLA: It was advertised and this is
7 the way I put my bid in, I put my bid in saying if I
8 can't collect, if I can't do what you want me to do,
9 I won't get paid but since I am taking the risk and
10 there have been many cases, if you look through the
11 list, I have handled about a hundred, over a hundred
12 cases, maybe ten of them I get nothing, maybe
13 fifteen, I get a minimum of a hundred twenty -four
14 dollars. But that's the risk I take.
15 MAYOR FREEMAN: You are not paid by the hour,
16 you are strictly paid on a contingency?
17 MR. FRIGOLA: I am strictly paid on a
18 contingency. When the county is entitled to
19 attorneys' fees if they are successful, so my hourly
20 records are kept, the court then adds that amount to
21 the judgment and I only get my percentage of that,
22 the county benefits from the overage also of what
23 the award of attorneys' fees is.
24 COMMISSIONER HARVEY: Thank you. May I say
25 something else. I am the only commissioner who was
NICHOLS & HARDY (305) 296 -2468
3
35
1 on the commission during the time of 1986 and
2 believe me, Monroe County was very, very culpable.
3 Holiday Isle tried to get permits. We practically
4 closed Holiday Isle because we were coming up with
5 any excuse we could, seems like because people were
6 saying there were crowds there on weekends, and
7 sometimes I used to think if we thought maybe the
8 man was too successful and did we want to break up
9 his success, he was more successful than I was and
10 so now when we begin to get busy on closing him up
11 because of lack of parking, he was a genius, I
12 thought, of things that we had never thought of. He
13 goes to DOT and gets DOT to lease him the right of
14 way so he cures that problem.
15 Some of these incidents we are fining him for
16 was, the tiki was already built but because he put a
17 side railing around and some boards to break the
18 wind, we fined him for that. We were very culpable
19 and believe me, that was when the September 1986 was
20 the first land use plan was filed and everybody was
21 in turmoil and I do think that time should be given
22 a great deal of consideration with people trying to
23 comply with the law. He was trying to get what kind
k or, 24 of a, what do you call it, zoning, was he going to
25 get and I can remember his appealing to us
NICHOLS & HARDY (305) 296 -2468
36
1 frequently for a zoning classification and I think
(100, 2 he did try to come out, believe me.
3 MR. FRIGOLA: These fines are violations
4 starting in 1989.
5 COMMISSIONER HARVEY: The first one?
6 MAYOR FREEMAN: Mr. Douglass?
7 MR. DOUGLASS: Yes, I have one final comment,
8 I understand what you're saying, commissioner, as
9 well. I think there's a difference between a judge
10 and what a judge awarded in similar cases perhaps
11 and what a corporate citizen and his local
12 government is attempting to do. We have to live
13 here together and we are trying to reach a
14 reasonable settlement. A judge is an entirely
15 different situation. We only want this to be a
16 situation where the local government and a local
17 citizen finally agree, yes, we did something wrong,
18 we are going to penalize you for and we are going to
19 go forward from here.
20 COMMISSIONER REICH: I'd like to amend my
21 motion to include that Mr. Hendrick's negotiation
22 for this particular -- for this particular
23 problem --
24 COMMISSIONER HARVEY: Couldn't hear.
25 COMMISSIONER REICH: I would amend my motion
NICHOLS & HARDY (305) 296 -2468
37
1 so that Mr. Hendrick do the negotiation on this one
2 articular, on Holiday Isle --
P Y
3 COMMISSIONER LONDON: I'll second that.
4 MAYOR FREEMAN: I have a question for Peter
5 Horton, the statement was made that since 1989 there
6 have been no violations at the Holiday Isle; is that
7 true?
8 MR. HORTON: I think the last case was '90 or
9 '91.
10 MR. HENDRICK: These cases were brought in
11 '89, except two. One was in 1990, case for
12 something done in '89, one apparently reached code
13 enforcement apparently in '91, so the last one was a
14 '91, that was the last possible date.
15 MAYOR FREEMAN: All except for that the last
16 possible date was '89 --
17 COMMISSIONER HARVEY: Do you have a running
18 record there of the zoning and the changes and what
19 not?
20 MAYOR FREEMAN: Are we ready to vote on that?
21 MR. HENDRICK: I don't have it in writing but
22 they do range as Commissioner Douglass has indicated
23 from relatively inocuous things, benign things like
24 the recycling center, one was a fence put up without
25 a permit and some of them were two story structures
NICHOLS & HARDY (305) 296 -2468
3
38
1 which was facetioi ly called a tiki hut but it was a
2 two story tiki hut, it was the tiki hut in the sky.
3 COMMISSIONER HARVEY: Mr. Brooks has
4 something --
5 MR. BROOKS: The '89, '90 and '91 cases
6 talking about here today have not been resolved and
7 there are no new cases since that time.
8 MAYOR FREEMAN: Since when?
9 MR. BROOKS: Since '91.
10 MR. FRIGOLA: I have a '91 case.
11 MAYOR FREEMAN: Well, that's progress. Okay,
12 commissioners, we have a motion to go with a minimum
13 of one hundred thousand dollars. I'm going to vote
14 against it. I don't think it's high enough. I
15 think it should be at least two hundred thousand for
16 the low figure.
17 MR. DOUGLASS: If I could interrupt, I can
18 tell you the two infractions, the '91 August 23 was
19 fuel dock required by insurance company, I am
20 familiar with that dock, you need it by the way for
21 insurance -- the other is a recycling pen and that
22 was October of '90. It had open air surrounded on
23 the sides with a fence, it covers their baling
24 machine.
25 MAYOR FREEMAN: Is there any further
NICHOLS & HARDY (305) 296 -2468
39
1 discussion?
C ie 2 THE CLERK: I'll call the roll.
3 MR. DOUGLASS: Could you read the motion?
4 MAYOR FREEMAN: Commissioner, this is going to
5 be really it.
6 COMMISSIONER REICH: The motion is for Mr.
7 Hendrick to negotiate the settlement with Holiday
8 Isle with the bottom line figure of one hundred
9 thousand dollars. Okay, that's it, that's the
10 motion, plus compliance. I'm sorry, plus
11 compliance.
12 THE CLERK: Commissioner Douglass.
C of 13 COMMISSIONER DOUGLASS: Yes.
14 THE CLERK: Commissioner Harvey.
15 COMMISSIONER HARVEY: Yes.
16 THE CLERK: Commissioner London.
17 COMMISSIONER LONDON: Yes.
18 THE CLERK: Commissioner Reich.
19 COMMISSIONER REICH: Yes.
20 THE CLERK: Mayor Freeman.
21 MAYOR FREEMAN: No.
22 MAYOR FREEMAN: Are we ready for the next
23 item?
24 MR. HENDRICK: Yes, at this time, Mr. Frigola
25 is exiting the room, give him enough time to get his
NICHOLS & HARDY (305) 296 -2468
40
1 bag closed. Thanl rou all very much. We will ask,
(lorr 2 Marathon Air or POE Buckley first, all the
3 personnel, for the record it is all the members of
4 the Board of County Commissioners, myself, James
5 Hendrick, Randy Ludacer, Mr. Roberts, Mr. Kolhage,
6 Mr. Smith, Hugh Morgan who will handle the podium on
7 this and attorney Ralf Brooks.
8 THE CLERK: Madam Mayor, I will step outside
9 and announce that we are running hopelessly behind.
10 MAYOR FREEMAN: That's a good idea.
11 THE CLERK: That we will do our best to catch
12 up.
13 COMMISSIONER REICH: I would ask Randy a
14 question. At what point, at what stage right now
15 does Mr. Frigola's contract, is he still under
16 contract with the county? I understand this
17 contract ran out from the ones I got and right now
18 it's basically on a fact of cases that are still
19 pending. I may be wrong, but I would like to know,
20 I don't remember his contract being renewed.
21 MR. LUDACER: My best recollection is a paper
22 glitch, the amendment was approved and Marty Arnold
23 was holding the original for some reason and it was
24 not processed properly but the actual approval was
25 made by the commission, it's a six month contract
NICHOLS & HARDY (305) 296 -2468
41
1 and I would suggest to you that the writing is
2 subcritical. I think the contract is less than six
3 months. I don't think they need be in writing.
4 COMMISSIONER REICH: A verbal contract with
5 the county?
6 MR. LUDACER: Yes.
7 COMMISSIONER REICH: That can -- in that case
8 I'd like to see a written contract with that
9 contingency taken out.
10 MR. LUDACER: I think the contract was
11 approved and we found out that the code enforcement
12 office was holding the original until they received
13 their executed copy. I pointed that out and it's
14 since gone forward.
15 COMMISSIONER REICH: I guess I'd still like a
16 copy of that contract if it exists.
17 MAYOR FREEMAN: Shall we proceed, Mr. Morgan?
18 MR. MORGAN: I understand we're running
19 behind. I won't give you the history of Marathon
20 Air. I will answer any questions you might want
21 about the history that might be relevant to the
22 issue. We are in litigation with Marathon Air and
23 the situation out there from a practical standpoint
24 is that a number of people, number of customers that
25 do business at the Marathon airport are unhappy
NICHOLS & HARDY (305) 296 -2468
42
1 because they feel that they are not treated the way
t riw 2 they should be and the prices are higher than they
3 should be for the fuel and for the products.
4 Basically this comes before you because when
5 the Jet Center was purchased it came before you for
6 approval, you said no. The renewal of the Flight
7 Department contract before you for approval and you
8 said no, because you felt you always intended to
9 have two FDOs out there. You wanted to encourage
10 competition between the two and the competition
11 would encourage and give to people out there
12 complaining, choice that he could go to the other
13 and there would be competition for price and so
14 forth.
15 So we began this litigation and the litigation
16 revolves around a provision in the contract that
17 determines whether or not your approval was required
18 or not required under these circumstances. We have
19 copies for you of the old provision of the contract
20 as it was before it was amended and here is our new
21 provision of the contract. Under the old provision,
22 basically the owner could not assign the lease to
23 anyone without your permission and the contract
24 specifically said if there was a merger between two
25 corporations that you would consider that the same
NICHOLS & HARDY (305) 296 -2468
43
1 as an assignment and they would have to seek your
(pg 2 approval.
3 When the new contract came up that provision
4 was changed and the new provision read, if you
5 remember, prior approval of a lessor shall not be
6 required for the assignment of a lease occuring as a
7 result of the merger or consolidation with another
8 corporation provided that such other corporation is
9 solvent and provided that all of the assets of the
10 company are included within such merger or
11 consolidation so they are taking the position as the
12 first part of this that since it was a merger that
13 your approval is not necessary.
14 However, we have maintained that they would
15 still have to meet the conditions precedent and that
16 is that they would have to show the other
17 corporation is solvent and they would have to show
18 all the assets of the company within the merger of
19 consolidation. Right now where we are in the
20 litigation, we have discovery out asking them to
21 show us whether or not they were solvent and whether
22 or not all of the assets were transferred.
23 In the meantime what has happened, we can
24 state this here in a closed door session, neither
25 Mr. Owens who's the manager out there or Mr. Edwards
NICHOLS & HARDY (305) 296 -2468
44
1 are in very good health. And I think they, like
(he 2 Willie Nelson says, that we will enjoy as much as
3 they can stand of this controversy and I think that
4 looking to maybe ending it all by offering to the
5 county a buyout of the entire operation of both
6 operations. I think that's probably the reason we
7 requested this information from them.
8 They might also feel that they are not also in
9 compliance with this and would need your approval
10 and that is also motivating them to make a
11 settlement offer rather than comply with the
12 discovery which is out which may or may not be
13 embarrassing. I don't know that until the discovery
14 gets in so here in this closed door session what we
15 are saying to you is that you previously thought
16 about purchasing the Flight Department to prevent
17 the merger or buying that portion so that you could
18 let that part out to a competing interest and there
19 would be competition on the premises. Now the
20 proposal is he wants to buy the whole, both
21 operations.
22 If you do, what you could do is then rewrite
23 your entire contract, you can rewrite your minimum
24 standards and you can place some provisions on there
25 that would ensure competition out there forever and
NICHOLS & HARDY (305) 296 -2468
45
1 you could put so-.e provisions in there, I think,
(he 2 that would satisfy all that had to do with
3 complaints out there. A situation where one person
4 owns it all can work. It seems to work in Rey West.
5 What those people, they are nice to their
6 customers, apparently they have a good working
7 relationship, they give their local people a
8 discount. That's far better than there are in
9 Marathon. Their fuel prices are discounted for
10 locals and so forth. You don't hear much complaints
11 about but you do run the risk that it gets into
12 wrong hands when you have one person and you have no
13 competition. The question is we stopped everything
14 at this proceeding, at this point because at the
15 other side of the -- to abate all proceeding so you
16 would not be incurring attorneys' fees for
17 litigation while we were exploring the possibility
18 of settlement so we have agreed to stop all legal
19 proceedings and to explore this.
20 We needed to meet with you with a closed door
21 session and ask you whether -- whether or not you
22 think it's a good idea to buy both operations and if
23 so, direct us to proceed to do so. We are working,
Cre 24 of course, very closely with Peter Horton on this
25 and he can answer any questions you have.
NICHOLS & HARDY (305) 296 -2468
46
1 What we would do if you give us the directive
(10 2 to do that is first of all get a limited appraisal
3 of the business and I know the question one has. We
4 might like to buy but we would want to know the
5 price, in order to come back to you in a closed door
6 session, discuss prices, we need a starting point
7 and that starting point would be an appraisal and
8 one, we have appraisers out there and start doing
9 this, people are going to realize, I'm sure, that
10 something, you know, is going on. That's fine. But
11 we would like to hear from you and direction from
12 you as to whether or not you think we should proceed
13 in this direction and at least come back to you with
14 a proposal for the purchase of both properties.
15 Peter, did you want to add something?
16 MR. HORTON: Yes. There have been some other
17 developments as well. It's been a couple weeks
18 since I have spoken to Hugh and I have spoken to Mr.
19 Edwards just as recently as nearly noon today. The
20 bottom line is that they want to sell out. They
21 being Mr. Owens and Mr. Edwards, they are offering
22 us the right of first refusal. If we turn that down
23 we would like to sell the two properties to
24 somebody.
25 Of course, they can't do that at this point in
NICHOLS & HARDY (305) 296 -2468
47
1 time because one of those properties they don't have
C if 2 a lease for. I believe this would be an excellent
3 situation, if we choose not to buy the property, to
4 allow them to sell it but to sell it under the
5 restrictions that we would normally put under it,
6 had they gone through what we believe to be the
7 procedures of the assignment of lease to you and we
8 would check out the buyer and so forth and so on but
9 I'd like to explore the possibility of purchasing
10 this and I think even before the appraisal, I had
11 another thought there, Hugh, that before we know
12 whether it is going to be a good deal or a bad deal
t ialv 13 for us, we would ask first from their side to submit
14 to us a CPA - prepared profit -loss statement; then we
15 could see what the parameters would have to be, the
16 business would be profitable for us to own.
17 What you have to remember here is that this is
18 not a fee simple situation. We are not buying some
19 buildings and the land underneath them for an
20 unlimited amount of time. There are two leases on
21 the Jet Center and the Flight Department, one of
22 which is going to expire fourteen years from now.
23 The other will expire thirteen years from now
24 and when those leases expire they become the
25 properties, the real property on top of our land,
NICHOLS & HARDY (305) 296 -2468
48
1 they are going to be ours anyway so it's a totally
C if 2 different situation. He may think that it is worth
3 X hundreds of thousand dollars or million dollars -
4 plus but to us it probably will not be worth that
5 much because we can choose to do something else and
6 collect forty thousand dollars a year from them in
7 rental payments and then get all of his capital
8 improvements when his leases expire.
9 There's another very important point. On the
10 Jet Center, I'm sorry, on the Flight Department,
11 almost not quite three years from now, 1997, I think
12 November of '97, whoever owns the Flight Department
13 at that point in time, if they assume the existing
14 lease is going to have to put another three hundred
15 thousand dollars of capital improvements into that
16 property and provide secondary as well as primary
17 FPO facility.
18 That's in the lease, that's in our minimum
19 standards so it's not a clear issue at all. I think
20 the important thing that we need to remember here is
21 that if we choose to purchase it we will pay no more
22 than fifty cents on the dollar because FDOT has told
23 us in a meeting in December, in Miami, where I laid
(100v 24 the plan out that they would up -front fund half of
25 whatever the purchase price is.
NICHOLS & HARDY (305) 296 -2468
49
1 Mr. Edwards has said if we did purchase it
AFt
2 from him under that basis he would take that half in
3 July of 1995 when the FDOT would tender it to us and
4 would carry the rest of the whatever the amount is
5 over five years of time so basically what we have to
6 look at in profit and loss, how much money is it
7 going to make over those five years and then
8 subtract that from the fourteen and the thirteen
9 year respectively to determine whether it's in our
10 best interests to get the property in effect eight
11 and nine years sooner so the direction that I would
12 like at this point in time is that number one, you
(impe 13 allow us to continue the negotiations, that you
14 direct me to ask Mr. Edwards for an audited,
15 CPA - prepared financial statement and profit -loss
16 concerning the two businesses and then if that
17 fails, if we can't come into agreement to continue
18 on with the negotiations, to allow him to sell it to
19 somebody else because half the problem in my opinion
20 is a personality involvement. If you can remove the
21 personalities and put new personalities in there, I
22 think that will go a long way towards solving the
23 problem.
liowe 24 MAYOR FREEMAN: Commissioner London?
25 COMMISSIONER REICH: I don't mind the second
NICHOLS & HARDY (305) 296 -2468
50
1 part but the first part I have a problem. Here we
2 are going into a business we have no business in,
3 but let me finish. I had a conversation apropos of
4 this with Bryan Schmidt who's a rather astute
5 businessman. Bryan told me, chatting about Marathon
6 business and so forth, he told me that the previous
7 owner of that FPO had lost a million dollars in one
8 year and that it had been nothing but a terrible
9 drain on him. Now I don't know what their
10 statements are going to suggest or anything else and
11 maybe they have a wonderful management in place but
12 as far as my gut instinct right away, I don't want
13 to be involved in this at all. I don't know how the
14 other commissioners feel but this is not something I
15 want to explore.
16 MR. MORGAN: The option in buying it is to
17 turn around and release it, not to run it.
18 COMMISSIONER LONDON: We have had to commit X
19 number of dollars to buy it in the first place so we
20 can get -- I think one of these we are going to get
21 back anyway, as Mr. Horton pointed out, there's
22 obligations to improve and during the heat of the
23 moment they said we will fix you good, everyone says
(6W 24 things during these heated moments but the fact is
25 now we are suddenly in the driver's seat and why
NICHOLS & HARDY (305) 296 -2468
51
1 give that advantage away? Those are my thoughts.
41 01e 2 I'm sure the other commissioners have some too.
3 MAYOR FREEMAN: Commissioner Reich.
4 COMMISSIONER REICH: I don't want to be in the
5 airport business, having been around airports a lot
6 of my life, I don't want to be in the business and
7 the county has no business getting into another
8 business but you know, if it's going to be our
9 advantage to buy, I hate to commit to buy without a
10 guaranteed re -lease though. That's just opening up
11 a can of worms.
12 MAYOR FREEMAN: A guaranteed re- lease, what is
t of 13 that?
14 COMMISSIONER REICH: Re- leasing.
15 MR. DOUGLASS: I don't know how we can find
16 one, let alone two lessees.
17 COMMISSIONER REICH: Depends on what their
18 profit and loss statements are.
19 MR. DOUGLASS: I'm opposed to looking at them.
20 If I had a thought, I think the best course of
21 action would be to remove any impediments towards
22 Mr. Owens and Mr. Edwards selling their business.
23 May be we should say let's let them do it, let's not
A be 24 be in the way. They are obviously not well; why
25 should we be in their way? They are not going to be
NICHOLS & HARDY (305) 296 -2468
52
1 good for this county because their heart is not in
(0 2 it.
3 MAYOR FREEMAN: Commissioner Harvey, did you
4 have any -
5 COMMISSIONER HARVEY: If we could get them to
6 sell that would be great.
7 MR. MORGAN: Do you think there should still
8 be two FPOs out there -- or do you think it could go
9 like the situation in Key West?
10 MAYOR FREEMAN: Commissioner Reich.
11 COMMISSIONER REICH: That's my point, if
12 you're going to allow them, if you're going to back
13 out of the lawsuit and allow them to sell the
14 property, somewhere along the line I'd like it
15 stipulated that the only way you can have
16 competition, there has to be two FPOs there. I
17 don't have a problem allowing them to sell it but
18 not to one person. That's how we got into this
19 whole mess in the first place.
20 MR. MORGAN: They are going to have a problem
21 selling it unless they can sell it to one person.
22 COMMISSIONER REICH: They are going to have a
23 problem selling it because they have stripped the
24 Jet Center. I know. I have been inside it.
25 MR. MORGAN: One of the contingencies, all of
NICHOLS & HARDY (305) 296 -2468
53
1 the assets of the company are included in the merger
2 and we have discovery out and we don't know, were
3 they included in the merger and we have evidence
4 that they are not all there.
5 COMMISSIONER REICH: That building is a shell.
6 MAYOR FREEMAN: I have a comment about one or
7 two FPOs. It's my understanding that the second FPO
8 out there has never been able to make it; it's gone
9 broke every time he has tried; is that right, Mr.
10 Horton?
11 MR. HORTON: They have gone out of business
12 each time.
13 MAYOR FREEMAN: How many tries have there
14 been?
15 MR. HORTON: The last, that was a limited FPO
16 that sold out to Mr. -- a gentleman by the name of
17 Ed Oliet (phonetic) who's corporate FPO for Jet
18 Center, the Jet Center, Mr. Oliet sold it out to Mr.
19 Edwards or simply transferred the stock depending
20 upon your point of view. As far as whether the Jet
21 Center was a viable entity making money, I don't
22 know. What I have continually heard there is not
23 enough business in the Marathon airport for two
24 competing FPOs. That's what intrigued me frankly
25 about us acquiring the two properties.
NICHOLS & HARDY (305) 296 -2468
54
1 I never -- I never wanted to bring a proposal
2 before this board where Monroe County staff would be
3 running those businesses, no, and airports privatize
4 as much as possible. If we could acquire, since the
5 numbers work out, since we are in a unique position
6 of having to acquire these things only based upon an
7 appraisal so we know we are getting fair market
8 value and we acquire them on the basis of fifty
9 cents on the dollar, we are in a unique position to
10 parcel out the two entities to one entity, as an
11 example for the aviation fuel sales, one for another
12 vendor perhaps to do the mechanical work, the
13 building that the Jet Center would be excellent to
14 develop some of the smaller operators that want to
15 get on the field to do aircraft upholstery or radio
16 shop repair work, those kinds of things but again
17 that's all contingent upon the profit -loss showing
18 us that the numbers work far enough to go to the
19 next step which is an appraisal but no, I don't want
20 to run an FPO at either facility.
21 COMMISSIONER LONDON: If we can win the
22 lawsuit why should we buy it? What's the point?
23 MR. HORTON: I agree a hundred percent and we
24 should ask Mr. Morgan what -- where we think we are
25 in winning that lawsuit. The first part of it is
NICHOLS & HARDY (305) 296 -2468
55
1 the lessor will be required to get assignment of the
(a, 2 lease occuring as a result of a merger consolidation
3 with another corporation, that's clear. Your
4 approval is not necessary providing that such other
5 corporation is solvent and provided all the assets
6 of the company are included within the merger so we
7 asked them to prove to us they were solvent at the
8 time and to prove to us that all the assets were
9 merged, were given over to the new one. Reich says
10 we don't think they were, they haven't answered
11 those questions. Until they do we don't know as a
12 matter of fact, that we are in compliance. We
13 suspect they are not. If they are not in compliance
14 it means you can disapprove of the assignment but
15 even then if you do disapprove you must have a
16 reason to do so.
17 COMMISSIONER LONDON: Can't we defer the
18 decision until you have made that determination?
19 MR. MORGAN: You can do that but at this point
20 what we are saying rather than comply with that,
21 they are exploring the possibility here of turning
22 it over to us, completely. One advantage you have
23 in purchasing and at least temporarily until you can
C or 24 lease everything, you can rewrite all this, you can
25 rewrite your minimum standards. One of the biggest
NICHOLS & HARDY (305) 296 -2468
56
1 problems in managing all this is that basically the
C r, 2 documents only provide that you're either an FPO or
3 you're not, and if you're an FPO, you have to comply
4 which is expensive to do so with all the
5 requirements.
6 In other words, there is a limitation on being
7 limited FPO, where you can only just do repairs or
8 you can only just do, you know, sell fuel or
9 something like that. I think that's what you really
10 need, you need to be able to go back and open this
11 up so you can redraft this to provide the type of
12 competition that you have requested all along.
13 Maybe we can do this, if they agree to sell it to
14 somebody else, maybe we can agree but I don't think
15 so. I don't think they are going to be able to sell
16 to somebody else as long as this is pending.
17 COMMISSIONER LONDON: And only Monroe County
18 would be foolish enough to buy it.
19 MAYOR FREEMAN: I would like Commissioner
20 Douglass' idea, couldn't we have an agreement to
21 remove the reason why they can't sell it, that is
22 our lawsuit and, in response to, some agreement with
23 them on that, and then let them go ahead and part of
(We 24 the deal would be that they could sell it under
25 conditions, rewrite the conditions under which they
NICHOLS & HARDY (305) 296 -2468
57
1 could sell it and then they could re -lease it or
(6, 2 whatever and let them sell the lease to somebody
3 else and we never have to be in the business.
4 MR. MORGAN: Their problem, I think that they
5 don't feel it's marketable, that they can't get it
6 all back unless they sell it to one person because
7 if they sell it to someone else with competition
8 next door it's not worth the same.
9 MAYOR FREEMAN: You are saying it's worth a
10 lot more as one operation than as two operations?
11 MR. MORGAN: Definitely, you don't have
12 anybody to compete against; you can set your own
13 prices, a monopoly is more valuable than limiting it
14 as two, and there have been problems with the second
15 one operating out there. If we win the lawsuit, all
16 that means, if we win the lawsuit then the transfer
17 of the lease, the old Marathon fuel farm lease is
18 subject to your approval. If you can find good
19 reason not to transfer it over and say no to that
20 then what you have -- the old Marathon fuel farm
21 then you would still be in the same position of
22 having to go out and find a full FPO rather than a
23 limited one under the terms of the minimum
24 standards, you see? Then if you win --
25 MAYOR FREEMAN: So the big impediment that we
NICHOLS & HARDY (305) 296 -2468
58
1 have to their selling or to our selling is trying to
(Par 2 get some profit making organizations in there.
3 MR. MORGAN: Right, and I don't think we could
4 get two full FPOs out there, the best you can do is
5 to do limited FPO and make that legal under the
6 terms of both contracts so that you can let it out
7 to companies just come in and do the automobile
8 repairs, the upholstery repairs and so forth but
9 when you're obligating yourself to be a full FPO
10 with the requirements that are required it's just
11 not enough business there, and I will tell you in a
12 closed door session and that's what they're saying,
13 they are saying you are requiring us to do something
14 that is economically unfeasible and that is to have
15 two out here and --
16 MAYOR FREEMAN: And in Key West we have one
17 anyway and it is a much larger operation.
18 MR. DOUGLASS: When I said remove the
19 impediment, that was one of them.
20 COMMISSIONER REICH: If you remove the
21 empediment, the lawsuit and you allow them to sell
22 to two people or whatever, are we at that point able
23 to change the wording of those leases? In other
(001, words, those leases are going to stand. If we
25 remove that impediment they are right back in the
NICHOLS & HARDY (305) 296 -2468
1
59
1 same position that they were that we were in in the
2 first place.
3 MR. MORGAN: Well, we can make that part of
4 the provision and it's not marketable and we are not
5 going to be able to sell it.
6 COMMISSIONER LONDON: What has happened, they
7 have come to the realization what they have is
8 worthless. The only way they can sell it is if we
9 agree to drop the lawsuit. We can't drop the
10 lawsuit because all of the requirements are being
11 thrown out the window to accommodate them. It seems
12 to me that the only option we have here is to
13 continue to the discovery and make a determination
14 as to whether or not they in fact made some
15 misrepresentations regarding the solvency of this
16 other entity and then we can look at it again but I
17 think that's something we have got to continue
18 because all we are doing here is trying to come up
19 with ways or reasons why we should be buying this
20 from them so we can help them out. These people
21 have never been cooperative with us in the past so I
22 don't know why we are going out of our way to be
23 cooperative now. The motion is to direct counsel to
24 continue with the discovery and come back and report
25 to us what the results of that activity is.
NICHOLS & HARDY (305) 296 -2468
60
1 MAYOR FREEMAN: Is there a second?
(me 2 COMMISSIONER HARVEY: Second.
3 MAYOR FREEMAN: Commissioner Harvey seconded.
4 Any further discussion?
5 MR. DOUGLASS: What is the discovery you are
6 trying to discover?
7 MR. MORGAN: Under the provision, your
8 approval is not necessary provided that such other
9 corporation is solvent and provided that all the
10 assets of the company are included within such
11 merger from consolidation. I believe that before
12 the automatic provision that they don't meet your
13 approval is in effect that they would have to show
14 the first two and they have never done that. In
15 other words, they have never come before you and say
16 that this provision applies to us, we don't need
17 your approval because the other corporation is
18 solvent and all the assets of the company are
19 included within the merger. They have never made
20 that showing to you. They have never misrepresented
21 it, so they never in my mind performed the condition
22 precedent to the automatic provision and now whether
23 or not in fact it occurs we don't know until we have
(ope 24 asked the question, they have asked all be stayed
25 until the possibility of the sale be explored with
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1 you and we told them --
L ir 2 COMMISSIONER LONDON: And you stated you
3 suspect that these -- that this corporation or
4 entity isn't solvent and this is what the purpose of
5 this discovery is; isn't that correct?
6 MR. DOUGLASS: The only other concern we have
7 and the one reason to be nice to them, we are
8 getting poor service from them at the airport, the
9 longer we let this drive on, the longer we are
10 getting poor service --
11 MR. MORGAN: Even if we win the case and get
12 the Flight Department back, Mr. Edwards is still
(101e 13 there and Mr. Owens is still there so that hasn't
14 been solved as a result of the lawsuit.
15 COMMISSIONER LONDON: But that's not a
16 problem. They are paying their rent; they are doing
17 what they are supposed to be doing. What we will
18 have will be the opportunity to do something with
19 the other building, whether it's a fixed base
20 operation or whether we want to lease it to somebody
21 else.
22 MR. MORGAN: Hear me out, you can't do -- the
23 only thing you can do with it under the terms, and
24 Peter, help us out here, is do a full FPO there
25 because both sides have a right to do that. In
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1 order to break that up we need the cooperation of
2 both sides, one is to purchase both of them and redo
3 the whole thing and let the whole thing out, to
4 somehow -- we are going to continue to explore that
5 but as I have already done, we have offered already
6 to buy out the Flight Department and they won't hear
7 of that, and we have also said if you aren't going
8 to sell it we want to talk about other provisions
9 but they have taken the position they need to sell
10 it as a whole with a monopoly.
11 MAYOR FREEMAN: You have our direction, if we
12 can call the question on it.
13 THE CLERK: Commissioner Douglass.
14 COMMISSIONER DOUGLASS: No.
15 THE CLERK: Commissioner Harvey.
16 COMMISSIONER HARVEY: No.
17 THE CLERK: Commissioner London.
18 COMMISSIONER LONDON: Yes.
19 THE CLERK: Commissioner Reich.
20 COMMISSIONER REICH: Yes.
21 THE CLERK: Mayor Freeman.
22 MAYOR FREEMAN: Yes.
23 MR. HENDRICK: At this point Mr. Horton will
(Fkow 24 be exiting the room. Goodbye, Peter, thank you.
25 Mr. Koppel should join us for the Post Buckley
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1 discussion. Again, this is the third and final
(he 2 segment of the closed door session. Present are the
3 members of the Board of County Commissioners, Mr.
4 Roberts; Mr. Koppel has entered the room, James
5 Hendrick, Hugh Morgan, Ralf Brooks, Wayne Smith,
6 Randy Ludacer, the county attorney and the clerk.
7 MAYOR FREEMAN: Are we saying four lawyers
8 from your firm at this moment?
9 MR. HENDRICK: Not for the entire period of
10 time, no, we're not. Attorneys Morgan and Smith
11 have been primarily involved in the Post Buckley
12 litigation.
13 MR. MORGAN: We ask to go first so we can
14 leave when our presentation is over. Post Buckley.
15 You know that controversy arose out of the fact that
16 Post Buckley gave a cost estimate of Card Sound Road
17 which greatly exceeded the actual cost of
18 constructing that road. The cost estimate that they
19 gave was six point six million up to six point nine
20 and that was the final estimate and then on top of
21 that they were also suggesting a contingency fund
22 which would raise that to eight point two million.
23 They suggested floating a bond. Once the bids
24 were in, the Post Buckley recommended that we accept
25 a bid of Florida Rock and Sand who quoted three
NICHOLS & HARDY (305) 296 -2468
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1 million a hundred twenty -three thousand and change
(he 2 to build the road. The road was then built for --
3 actually built for far under the cost estimate.
4 Therefore it was not necessary in the hindsight to
5 float the bond because we actually had enough money,
6 and enough funding in place to build the road
7 without the bond, therefore we moved to release the
8 bond at a cost of four hundred seventy -five thousand
9 dollars.
10 You directed us first of all last January to
11 explore every possibility of settlement with Post
12 Buckley because we appreciate that commissioners
(we 13 feel that we have a longstanding relationship with
14 them and we want to do everything we could to give
15 them the opportunity to accept responsibility, to do
16 what's right under the circumstances and to make an
17 offer to us that the commission could in good faith
18 accept. We entered into those negotiations for a
19 period of time, set up an apointment for meetings in
20 the months that followed, Post Buckley always found
21 a reason not to make the meeting.
22 We then took the position we are either going
23 to have this meeting or we are going to go before
24 the County Commission and ask permission to file a
25 lawsuit. We finally we got the authority from you
NICHOLS & HARDY (305) 296 -2468
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1 to give them sort of an ultimatum type letter and in
(10e 2 that letter we stated that we want you to admit
3 responsibility and quit prancing around and playing
4 games, admit responsibility for this and let's just
5 talk about the amount of money involved and that's
6 why negotiations totally broke down.
7 They would not make a full disclosure of all
8 the documents that they had and wouldn't cooperate
9 with us insofar as coming anywhere close to
10 admitting responsibility in their fault in this
11 matter. We then sought the guidance of the county
12 commission which told us to proceed to lawsuit.
13 However, we got word that the general counsel that
14 has taken a hard line position, was no longer with
15 Post Buckley and there was a new attorney that came
16 aboard and they would have a fresh idea and would be
17 more open- minded about settlement discussion so
18 again in an effort to avoid litigation costs we set
19 the time aside to listen to their proposal and to
20 see whether or not the new proposal and the new
21 regime would be more conducive to our needs.
22 We met with them, they came down from Miami,
23 the attorneys, Becky Sheriff (phonetic) and we have
24 followed that with a series of discussions. We last
25 met with Frank Butler who's their local agent, again
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1 in an attempt to try to work something out. I told
t ime 2 them last week that we are meeting with you today
3 and what we would bring to you today is the
4 complaint which is right here, to file a lawsuit and
5 that you would decide in this closed door session
6 which one of the options you wish to take.
7 Do you wish to take the offer made by Post
8 Buckley; do you wish to file the lawsuit and if you
9 continue, of course, negotiations and you want to
10 make a counter offer and if so, in what amount. I
11 told them I would have to have in hand a definite
12 proposal from them. If they are just saying that
13 they would make an indefinite proposal and not come
14 before you, you would say okay, what is that
15 proposal and we would get nowhere. So I asked them
16 for something definite.
17 Basically what they are offering to do is to
18 provide in -kind services rather than cash and an --
19 I have a letter from Becky Sheriff dated January 17
20 that was sent to us at our request so we could
21 present this to you today and I will -- I know we
22 are running behind; I won't read the whole letter to
23 you but in that spirit Post Buckley would like to
(000 24 offer future in -kind services to the county in lieu
25 of a cash payment, these in -kind at the normal
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1 retail with a multiplyer with a dollar value of five
2 thousand to a hundred thousand. Additionally, this
3 was in a news release, indicating that there had
4 been communications breakdown, mutually mistaken
5 assumption and unforeseen circumstances which
6 created this problem.
7 In other words, they want to do this in such a
8 way that to avoid any blame being cast on them and
9 their reputation in the news media. So the proposal
10 at the present time is to provide in -kind services
11 and no cash. I know in my discussions with Becky
12 Sheriff in -kind services is completely negotiable.
13 I think they would probably pay something more than
14 one hundred thousand dollars but they are not going
15 to go anywhere near the four hundred seventy -five
16 thousand that the county lawsuit asks for.
17 They have a certain limit that they have
18 decided to adhere to and the reason for that they
19 think that their right as a matter of law and as a
20 matter of fact, they think that the provisions of
21 the contract protect them and they put all this in
22 writing to me and explained to me in writing and
23 they also feel they are covered by the economic loss
Cor 24 rule, which is a developing theory of law, also
25 protects them and basically economic loss rule
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68
1 without getting into detail is that you cannot sue
(lisse 2 someone in court if you have a contract with that
3 person except under circumstances where there is an
4 independent ruling. In other words, it curtails the
5 ability of attorneys to be creative about suing
6 somebody under the contracts. What the law said is
7 we are looking here to stabilize contractual
8 relationships; you have a contract. It says what it
9 says. You are limited to the remedies under that
10 contract except under very unusual circumstances.
11 We do not believe that that applies to the
12 situation where you have a contract with
13 professional consultants and we have drafted the
14 complaint along those lines. To us it's
15 professional liability, malpractice liability and
16 due care required by them under the terms of the
17 contract and therefore we are not going outside the
18 terms of the contract. We feel comfortable enough
19 with this at this time to tell you that we can
20 proceed with this lawsuit in good faith.
21 We believe that we are correct as a matter of
22 law and this is after many hours of looking into
23 this because we didn't want to advise you to proceed
24 with a lawsuit where you had no chance to win. The
25 economic loss rule is a developing concept and many
NICHOLS & HARDY (305) 296 -2468
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69
1 legal minds in the State of Florida have struggled
(ime 2 with this. Some have won; some have lost.
3 Therefore there are conceptions and misconceptions
4 of what it is, so it is not an easy situation for
5 any lawyer to get involved in and there's no
6 guarantee of success.
7 So we feel that we are right and we should
8 proceed. We feel that this is simply a case of
9 professional malpractice and if you can't still sue
10 somebody for professional malpractice then you
11 couldn't sue anyone, a doctor, lawyer or anyone
12 else, if they have reached their contract of
C oe 13 providing due care under the terms under that
14 contract. We feel it's that type of case.
15 COMMISSIONER LONDON: Madam Chairman, I'd like
16 to cut this short simply by making a motion that we
17 direct counsel to file the appropriate litigation or
18 the appropriate lawsuit against Post Buckley.
19 COMMISSIONER DOUGLASS: Second.
20 MAYOR FREEMAN: Discussion? Please call the
21 role.
22 THE CLERK: Commissioner Douglass.
23 COMMISSIONER DOUGLASS: Yes.
24 THE CLERK: Commissioner Harvey.
25 COMMISSIONER HARVEY: Yes.
NICHOLS & HARDY (305) 296 -2468
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1 THE CLERK: Commissioner London.
(be 2 COMMISSIONER LONDON: Yes.
3 THE CLERK: Commissioner Reich.
4 COMMISSIONER REICH: Yes.
5 THE CLERK: Mayor Freeman.
6 MAYOR FREEMAN: Yes.
7 MR. HENDRICK: We have one technicality before
8 Mr. London leaves, at this point, as the chair of
9 the meeting, to reopen the public session and
10 announce the termination of the session. We will
11 then instruct the court reporter to transcribe the
12 proceedings and deliver to the clerk and remain
13 confidential until the conclusion of this matter.
14 MR. LUDACER: No copies.
15 MAYOR FREEMAN: The closed session is
16 terminated. Open session has begun, with a break.
17 (The proceedings concluded at 3:20 p.m.)
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1 C E R T I F I C A T E
(WW 2 STATE OF FLORIDA )
3 COUNTY OF MONROE )
4 I, Marc Nichols, Registered Professional
Reporter, do hereby certify that I was authorized to and
5 did stenographically report the foregoing proceedings;
and that the transcript is a true record of the testimony
6 given by the witness.
I further certify that I am not a relative,
7 employee, attorney or counsel of any of the parties, nor
am I a relative or employee of any of the parties'
8 attorney or counsel connected with the action, nor am I
financially interested in the action.
9 Dated this seventh day of February, 1995.
10
11 ��
12 Mar Nichols
Registered Professional Reporter
13 Florida Notary No. CC 151392
14
15
STATE OF FLORIDA
16 COUNTY OF MONROE
17 The foregoing certificate was acknowledged before me
this seventh day of February, 1995 by Marc Nichols who is
18 personally known to me.
19
20 _ _
len Hardy
21 Notary Public, State of Florida
My' Commission Expires 12-3-97
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