Item H1* 1:30 P.M. TIME CERTAIN *
BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: 4/20/11 - KW Division: County Attomey
Bulk Item: Yes No XX
Staff Contact Person: Bob Shillinger, 292 -3470
AGENDA ITEM WORDING:
An Attorney-Client Closed Session of the Board of County Commissioners in the matter of State of
Florida, Department of Community Affairs vs Monroe County and Leo F. Winterling and James A.
Winterling, DOAH Case No. 10- 0547DR1, APP -09 -008.
ITEM BACKGROUND:
Per F.S. 286.011(8), the subject matter of the meeting shall be confined to settlement negotiations or
strategy sessions related to litigation expenditures.
Present at the meeting will be the Commissioners, County Administrator Roman Gastesi, County
Attorney Suzanne Hutton, Chief Assistant County Attorney Bob Shillinger, Assistant County Attorney
Susan Grimsley, Assistant County Attorney Derek Howard and a certified court reporter.
PREVIOUS RELEVANT BOCC ACTION:
3/16/11 BOCC approved Closed Session for 4/20/11 @ 1:30 p.m. in Key West
CONTRACT /AGREEMENT CHANGES:
N/A
STAFF RECOMMENDATIONS:
Approval.
TOTAL COST: Court Reporter costs INDIRECT COST: BUDGETED: Yes No
DIFFERENTIAL OF LOCAL PREFERENCE:
COST TO COUNTY: Court Reporter costs SOURCE OF FUNDS:
REVENUE PRODUCING: Yes _ No xx AMOUNT PER MONTH Year
APPROVED BY: County Atty X OMB/Purchasing Risk Management
DOCUMENTATION: Included Not Required X
DISPOSITION: AGENDA ITEM #
Revised 2/05
BOARD OF COUNTY COMMISSIONERS
County of Monroe Mayor Holly Merrill Raschein,District 5
Mayor Pro Tem James K.Scholl,District 3
The Florida Keys Craig Cates,District 1
., Jl Michelle Lincoln,District 2
Robert B.Shillinger,County Attorney** David Rice,District 4
Pedro J.Mercado,Sr.Assistant County Attorney**
Cynthia L.Hall,Sr.Assistant County Attorney**
Derek V.Howard,Sr.Assistant County Attorney** Office of the County Attorney
Christine Limbert-Barrows,Assistant County Attorney** I I11 12'Street,Suite 408
Peter H.Morris,Assistant County Attorney ** Key West,FL 33040
Patricia Fables,Assistant County Attorney (305)292-3470 Office
Joseph X.DiNovo,Assistant County Attorney** (305)292-3516 Fax
Kelly Dugan,Assistant County Attorney
Christina Cory,Assistant County Attorney
Nathalia Archer,Assistant County Attorney
**Board Certified in City,County&Local Govt.Law
January 17, 2024
Kevin Madok, CPA
Clerk of the Court, 16'Judicial Circuit
Monroe County Courthouse
500 Whitehead Street
Key West, FL 33040
In Re: Florida Key Deer, et al. v. Fugate, et al., Case No.: 90-cv-10037,U.S.District Court,
Southern District of Florida
Dear Mr.Madok:
Please find attached scans of five transcripts of the attorney-client closed sessions held before the Monroe County
Board of County Commissioners on:
March 16, 2011;
April 20, 2011;
June 15,2011;
October 19, 2011; and,
December 14, 2011,
in connection with the above-referenced litigation. The litigation has concluded;under Fla.Stat.286.011(8),the
transcripts may be made part of the public record once litigation has ended.
Thank you for your assistance in this matter. Please contact me if you have any questions.
Sincerely
Digitally signed by Cynthia L.Ball
DN:cn-Cynthia L Nall,o-Monroe
County UOCC,ou,email-hall-
@� cynthiaC monroecounty-tl.gov,
_us
Date:2024.01.1615:56:06 05'00'
Cynthia L.Hall
Senior Assistant Monroe County Attorney
Attachments: Scans of Closed Session Transcripts dated 03/16/2011; 04/20/2011; 06/15/2011; 10/19/2011, and
12/14/2011
C(1) P�7'1,'�'y'
BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY
ATTORNEY-CLIENT CLOSED SESSION
WEDNESDAY, APRIL 20, 2011
1 : 42 - 2 : 22 P.M.
Re : State of Florida, Department of Community Affairs
vs ® Monroe County and Leo F. Winterling and James
A. Winterling, DOAH Case o ® 10-0547DRI, APP-09-088
COUNTY COMMISSIONERS :
Heather Carruthers, Mayor
Kim Wigingtort, County Commissioner
David Rice, County Commissioner
George Neu gent, County Commissioner
Sylvia J. Murphy, County Commissioner
STAFF:
Suzanne A. Hutton, County Attorney
Robert B . Shillinger, Chief Assistant County Attorney
Susan Grimsley, Assistant County Attorney
Roman Gastesi, County Administrator
TRANSCRIPT OF PROCEEDINGS
Proceedings of the Board of County Commissioners
of Monroe County Attorney-Client Closed Session, at the
Harvey Government Center, 1200 Truman Avenue, Key West,
Monroe County, Florida, on the 20th day of April, 2011,
commencing at approximately 1 : 42 p.m. and concluding at
approximately 2 : 22 p.m. , as reported by Susan L. cTaggart,
Court Reporter and Notary Public, State of Florida at
Large .
All Keys Reporting
Olde Towne Centre 600 Whitehead Street
9701 Overseas Highway Suite 206, 2nd Floor
Marathon Key West
305-289-1201 305-294-2601
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P R O C E E D I N G S
2 MAYOR CA RUT S : The BOCC meeting has been
3 reconvened, and we are now closing the BOCC meeting
4 for a closed session.
S . UTTO closed attorney-client session
pursuant to Section . 1 ( ) , Florida Statutes,
7 will now be held. It is estimated that the meeting
S will take approximately thirty minutes . The persons
attending the meeting will be the County
10 Commissioners, County Administrator Roman Gastesi,
11 County Attorney Suzanne Hutton, Chief Assistant
12 County Attorney Bob Shilin er, Assistant County
13 Attorney Susan Gisy, and a certified court
14 reporter .
15 Since the law prohibits any other person from
16 being present at the closed session, the
7 commissioners, the County Administrator, the
18 attorneys for the County, and the court reporter
19 will now remain in the meeting room, and all other
20 person are required to leave the room. When the
1 closed session is over, we will reconvene and reopen
22 the public meeting.
23 f the Mayor will call the closed session to
4 order, please.
25 MAYOR CARPI S : I 'm calling the closed
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1 session to order .
.............. 2 S . HUTTON : For the record, this meeting is
3 being held upon the request of County Attorney
4 Suzanne to , who announced at a prior BOCC
5 meeting held March 16, 2011, that I needed advice in
6 the matter of State of Florida, Department of
7 Community Affairs vs . Monroe County and Leo F.
8 Winterling and James A. Winterling, DOAH Case No .
9 10-0547DRI , APP-09-008 . At that meeting the board
10 approved holding today ' s closed session and public
11 notice was given through public announcement of the
12 meeting at the March 16 BOCC meeting and through
13 publication of the April 20, 2011 BOCC meeting
14 agenda on the County' s we site .
15 For the record and the benefit of the court
16 reporter, each of us will state our name and
17 position, starting with the commission .
18 COMMISSIONER WIGINGTON : Kim Wigington, County
19 Commissioner, District 1 .
20 COMMISSIONER RICE : David Rice, County
21 Commissioner, District 4 .
22 MAYOR CARRU THE RS : Heather Carruthers, County
23 Commissioner, District 3 .
24 COMMISSIONER NEUGENT : George Neugent, County
25 Commissioner, District 2 .
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COMMISSIONER MURPHY : Sylvia Murphy, County
2 Commissioner, District 5 .
3 MS . HUTTON : Suzanne Hutton, County Attorney .
4 R. GASTESI : Roman Gastesi, County
5 Administrator .
GRIMSLEY: Susan sley, Assistant County
7 Attorney.
8 R. SHILLINGER: Bob Shillinger, Chief
9 Assistant County Attorney .
10 MS . HUTTON : Just as a reminder, we will only
11 be discussing settlement negotiations and strategy
12 relating to litigation expenditures . You cannot
13 take any decisive action at this meeting . We can
14 only provide information and you can provide
15 direction to the attorneys . Any decisions the board
16 makes has to be made in a public meeting .
17 I 'm in to turn this over to Mr. Shillinger .
18 MR. SHILLINGER: Good afternoon . We ' re here,
19 this is a DCA appeal of a conditional use permit
20 that was granted by the Planning Commission . DCA
21 challenged it on the basis that they thought it was
22 inconsistent with our Comp Plan . The property in
23 question is located on Big Pine . And I apologize
24 for not having big glossy blow-ups or whatever, but
25 1 do have pictures . is on Big Pine, you know, the
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1 Key Deer highway corridor where they' ve of the
2 fences . This is along that section of road, if you
3 want to take a picture and look at it .
4 MAYOR CARRUTHERS : On the ocean side?
5 MR. SHILLINGER: It ' s on the gulf side . it
6 opens out onto Spanish Harbor Channel .
7 MAYOR CARRUTHERS : Okay. Is that the place
8 where there ' s a gate?
9 MR. SHILLINGER: Yes .
10 There is a, essentially there is, historically
11 there was a campground there and they got
12 conditional use approval to basically recognize
13 these camping spaces as ROGO and, or transient ROGO
14 exempt and allow them to bring in RVs to camp on the
15 campground, up to ten. And there were some
16 conditions, as you might gather, as the neighbor to
17 the not has a buffer yard on the property. I can
18 show you, the overhead shows the neighbor to the
19 north has a very nice house . It ' s the one above the
20 red line .
21 MAYOR CARRUTHERS : Oh, okay. That ' s north?
22 Oh, yeah, I guess it is .
23 MR. SHILLINGER: DCA, again, they objected.
24 Their primary objective is that it ' s Tier 1
25 property, it ' s Key Deer habitat, we should be moving
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1 development f of this area . The house above is
2 the neighbor . The big emptylot is the campground.
3 COMMISSIONER NEUGENT : And the name of that
neighbor?
. S . I don ' t know, but we can fin
out . Susan might know . She was at the hearing .
7 MS . G SLEY: I don ' t know .
R. S ILI G . Shedoesn ' t remember . All
ht .
10 I think that ' s one house and a garage o
11 accessory use or whatever, but I don ' t know .
12 haven ' t been on that property.
13 Thee art ent wanted to move the development
14 off-site, out of Big Pine, as part of their
15 settlement agreement .
16 MAYORC R T S : You mean they wanted to move
7 the campground?
18 . S Z L . Yeah . The campground stuff .
19 That would violate provisions in our Comp Plan about
20 movingwithin the sub-areas . Big Pineis its own
21 sub-area . So we ' re kind of back trying to get some
22 direction .
23 Now, some of the, I guess the political, it ' s
4 not political, the background on it, again, DCA
..°........ 25 would rather settle this case than take it to trial .
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1 They think that they have a pretty decent case of
2 winning it at trial, but just with the current
3 climate in Tallahassee they think they might win the
4 battle and then get overruled somewhere along the
5 way or staff may end up losing their jobs for
6 clamping down on the development, so they ' re in a
7 mood to deal . And they' re the ones who proposed
6 moving the development out of Big Pine . But that
9 conflicts with some of the policies that we have,
10 some of our policies .
11 COMMISSIONER NEUGENT : A point of clarification
12 her We can move stuff off Big Pine . We can ' t
13 move stuff onto Big Pine .
14 MR. SHILLINGER: Well, the actual reading, when
15 Christine went to start drilling down on the Comp
16 Plan, Big Pine is has its own ROGO sub-area and they
17 couldn ' t move . It ' s not the Lower Keys one .
18 COMMISSIONER NEUGENT : That area was in, or
19 designation was in place when we were talking about
20 moving Seahorse to Key Largo .
21 MR. SHILLINGER: And that was one with the 380
22 Development Agreement .
23 COMMISSIONER NEUGENT : Right .
24 MR. SHILLINGER: Which bends the rules .
25 COMMISSIONER NEUGENT : But in those discussions
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1 1 thought we were, and the thing that killed it was
2 because it was, or one of the things that killed it
3 was the discussion of it being transferred outside
4 of the planning area .
5 MR. SHILLINGER: Right .
6 COMMISSIONER NEUGENT : Which I was under the
7 impression that from the Seven Mile Bridge to Stock
8 Island was the planning area .
9 MR. SHILLINGER: Well, it ' s actually a little
10 different than that . The Seven Mile, it ' s, and I
11 was surprised to see this myself in ROGO policy or
12 Comp Plan policy 101 . 5 . 8, and I think it ' s, what,
13 Land Development Code Chapter 136, the Lower Keys
14 sub-area goes from the south side of Isla morada all
15 the way down to the Stock Island line but Big Pine
16 and No Name Key is a separate sub-area, and then the
17 Upper Keys one, here ' s what it says .
18 COMMISSIONER MURPHY : I didn ' t know that,
19 either .
20 MR. SHILLINGER: Yeah . This was a shock to me
21 to see it, as well . But the --
22 COMMISSIONER NEUGENT : Well, that ' s contrary to
23 previous discussions with Growth Management
24 Directors and Planning staff that we ' ve ever heard.
25 COMMISSIONER WIGINGTON: No . Because I was of
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that understanding, that Big Pine and No Name Key
2 was a separate area --
3 COMMISSIONER . No .
COMMISSIONER GI GTO : -- other than from the
Cow Key Bridge to the Seven Mile Bridge .
COMMISSIONER : They are a separate RO O
7 area .
COMMISSIONER : But the other discussion
9 that we ' ve always had is that you can transfer off
10 of Big Pine . You can ' t transfer development onto
11 BigPine .
12 MR. S ILLI GER: And that makes sense from
13 planningpoint of view . I mean, it ' s
14 environmentally sensitive .
15 COMMISSIONER NEUGENT : No . But that was part
16 of the Habitat Conservation Plan, is my
17 understanding . And the HCP is what changes Bi ine
18 to some degree . And I 'm really not arguing . '
19 just trying to throw a little history in here in my
0 understanding the whole time we ' ve ever had these
21 discussions, and the only difference between No Name
2 Key and BigPine was that they were in the Habitat
23 Conservation Plan and a separate ROGO.
24 COMMISSIONER : And I thought that ' s
25 what made them where you could only transfer within .
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I ' ve never understood that you could transfer off .
2 COMMISSIONER NEUGENT : No, because they limit
3 development . You can transfer everything off of Big
4 Pine but you can ' t transfer -- at least those were
5 the discussions .
6 MR. SHILLINGER: Right . Well, the two options
7 that we have before us to settle the case at this
8 stage are to allow a transfer and the applicant
9 thinks he can find a use for them, transient rental
.1 0 uses in Marathon. So it would be outside of the
11 unincorporated area, which why are we moving our
12 development rights into a city is one of the policy
13 concerns .
14 COMMISSIONER NEUGENT : That ' s smart growth.
15 MR. SHILLINGER: That is . But these are the
1.6 types of things that allow us to help defend against
17 takings cases when you have development rights
18 within your planning areas that you might be able to
1.9 apportion out someplace else .
20 COMMISSIONER NEUGENT : Question . I know
21 Susan ' s here, but why isn ' t our Growth Management
22 Director here?
23 R. SHILLINGER: Because we ' re in a closed
24 session, and the only people by statute that you can
.......... 25 have are the board, the court reporter, the
.........................................................................................................................................................................................................................................................
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1 administrator, and the attorneys . You can ' t have
2 any other staff.
3 COMMISSIONER WIGINGTON : We can ' t even have
4 Danny in here .
5 MR. SHILLINGER: We can ' t even have Danny. We
6 can ' t bring an expert witness in . That ' s just the
7 way the Sunshine Law has been interpreted.
8 COMMISSIONER NEUGENT : Well, how do you get a
9 clarification on something that has been discussed
10 for years?
11 MR. SHILLINGER: We don ' t necessarily have to
12 reach a decision today. We ' re looking for policy
13 guidance to which way we want to go . So we can
14 break it and maybe call this back later on if we
15 want to get that and you can consult with Christine
16 during a break in the closed session. But, you
17 know, the Sunshine Law is what it is and it ' s
18 strictly construed and all of the exceptions to it
19 must be followed to the letter or else you have a
20 Sunshine violation .
21 COMMISSIONER MURPHY : Okay. What are our
22 options here?
23 MR. SHILLINGER: Our options, here are the two
24 paths of settlement that we think are workable . One
.............. 25 is a simple one, which is remand the case back to
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1 the Administrative Hearing Officer, back to the
............. 2 Planning Commission, and have a new hearing . And
3 the beauty of that is DCA is taking the position
4 that there ' s not enough evidence in the record to
5 support the findings that there was established
6 campgrounds there . Well, we think that we can solve
7 that issue by putting more evidence in . The
8 applicant has more evidence now than they had at the
9 time of the hearing . So then it comes back down,
10 they have the hearing, assuming they get the same
11 result from the Planning Commission they get their
12 ten transient uses on the property, there is one
1.3 house that ' s been there that ' s ROGO exempt that will
1.4 stay, a caretaker ' s house, it goes back up to DC A,
15 when it gets transmitted perhaps they appeal or
16 perhaps they have, they exercise some discretion and
17 just say it ' s close enough, we ' re not on to
18 appeal it this time around. So we can solve the box
19 that they ' re in by bringing it down and loading up
20 the record and then sending it back up .
21 The other option is to get some direction that
22 the County Commission would be comfortable approving
23 a settlement agreement which we ' d bring back at a
24 later date to fully flush out and you can vet your
25 questions with Christine that would have a limited
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transfer of those rights within certain parameters .
o before we went too far down that path we wants
to know if the board was even willing to support
4 that ® From whatunderstand, when Christine
started talking about this issue with you a couple
of months ago she was getting mixedmessages from
7 the board. There was not a clear consensus . So
that ' s why we wanted to hold the closed session, so
we could at least ve a discussion amongst
0 yourselves, figure out is this something we even
11 want to pursue, and then we can go work out the
12 details and bringyou back a settlement agreement
13 Later .
14 MAYOR CARRUTHERS : What does the property owner
15 want to o?
16 MR. S II Well, the property owner would
7 love to maximize the value of his property, which
18 would be to sell these transient units to some
19 hotelier and then, well, he ' d liketo go as far as
20 Ivey West and Isla oa a . DCA doesn ' t want to take
1 him down the stream of the evacuation stream, they' d
22 rather move i the evacuation stream. So e '
23 e willing to limit it to even Marathon if he
24 thought he could get a deal .
25 COMMISSIONER CENT : And including
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1 municipalities into this transference?
2 MR. SHILLINGER: Including --
3 COMMISSIONER NEUGENT : In the other, the
4 defined sub-areas? We would allow the to transfer
5 the from Unincorporated Monroe County into
6 incorporated areas?
7 MR. SHILLINGER: Right . That was the proposal
8 that DC A came up with .
9 COMMISSIONER WIGINGTON : Was this a campground?
10 MR. SHILLINGER: The evidence that I 'm aware
11 of, I mean, I have no firsthand knowledge, but you
12 were at the Planning Commission hearing, is that it
13 was a campground at some point .
14 S . GRIMSLEY: Tent camping .
15 MR. SHILLINGER: Tent camping .
16 MS . GRI LEY: Boy Scouts camping.
17 COMMISSIONER NEUGENT : Outward Bound.
18 S . GRIMSLEY : Outward Bound.
19 MR. SHILLINGER: It was Outward Bound. I don ' t
20 think it was a scout camp.
21 COMMISSIONE UGENT : And they have a
22 structure there, also?
23 MR. SHILLINGER: Yeah . There ' s a house,
24 clearly, on there .
25 COMMISSIONER WIGINGTON : My second question was
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I about the hurricane evacuation.
2 COMMISSIONER NEUGENT : Well, if you transfer it
3 north, theoretically it should improve hurricane
4 evacuation.
5 COMMISSIONER WI NGTON : But we don ' t count
6 tourists in hurricane evacuations . They ' re not
7 permanent residents .
8 MR. SHILLINGER: Right . Well, one of the
9 proposals from the developer was that they be
10 allowed to move it Key West so they could use the
11 transient ROGOs in Key West with the assisted living
12 facility . And when we started looking, kind of the
13 reaction we of was that ' s a very apples to oranges
14 or even apples to, you know, broccoli comparison .
15 COMMISSIONER NEUGENT : Bob, clarification .
16 MR. SHILLINGER: Yes .
17 COMMISSIONER NEUGENT : So one of proposals is
18 to be able to transfer, my perception of what you
19 said was from Key West to Key Largo?
20 COMMISSIONER MURPHY: No .
21 MR. SHILLINGER: That was one of the
22 suggestions early on . DCA is not willing to sign
23 off on that . So the proposal that ' s on the table is
24 a transfer from Big Pine up to Marathon, maybe to
25 Islamorada .
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1 COMMISSIONER MURPHY: Within, it ' s all within
2 that same sub-area .
3 MR. SHILLINGER: Right .
4 COMMISSIONER WIGINGTON : Well, Marathon and
5 Isla morada are, but they ' re not in the same sub-area
6 with Big Pine Key.
7 COMMISSIONER MURPHY: Why not?
8 MR. SHILLINGER: Because Big Pine Key is its
9 own sub-area .
10 COMMISSIONER MURPHY : Is it ' s own . Okay.
11 Eliminate that portion of it, eliminate the fact
12 that they ' re sitting there by themselves . But what
........... 13 you ' re saying is the planning area boundary is the
14 north end of Isla morada?
15 MR. SHILLINGER: I think it ' s the south end.
16 Upper Keys is the --
17 COMMISSIONER MURPHY : Is it down by the 72 Mile
18 Marker?
19 MR. SHILLINGER: Well, here ' s what it says .
20 Upper Keys starts at the north end of Islamorada .
21 The Lower Keys starts at the south end of
22 Islamorada .
23 COMMISSIONER MURPHY: So that ' s the division
24 between the two planning areas . There are three .
25 Where is the third one? Just the City of Key West?
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MR. SHILLINGER: Big Pine . It goes Stock
2 Island to the south side of Isla morada with the
3 little island of Big Pine in the middle, and then
4 Upper Keys, upper side of Isla morada to the Dade
5 County line .
6 COMMISSIONER NEUGENT : That is so alien .
7 COMMISSIONER MURPHY: It is . I have never
8 heard it described like that . But what happens to
9 Marathon?
10 MR. SHILLINGER: It ' s a city.
11 COMMISSIONER MURPHY : We know that . But
12 they ' re --
13 MR. SHILLINGER: They' re not within our
14 planning area because we don ' t have planning
15 jurisdiction for Islamorada and Marathon .
16 COMMISSIONER NEUGENT : Here ' s the problem that
17 1 have with this, Bob, is that DCA decides this? We
18 can ' t do a damn thing and DCA can do whatever they
19 want to?
20 MR. SHILLINGER: Yeah .
21 COMMISSIONER WIGINGTON : And they' re not
22 consistent .
23 COMMISSIONER NEUGENT : This is unique . This is
24 new. This has never been discussed in great
25 detail --
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MR. SHILLINGER: No .
2 COMMISSIONER NEUGENT : -- with the full board.
3 And I know that you called the closed session to do
4 this, but I 'm expressing, and especially with this
5 administration up there, it ' s a crap shoot what the
6 these guys can do on something like this .
7 COMMISSIONER MURPHY : So Isla morada wants to do
8 something, they can only stay within their own
9 boundaries? They can only transfer within their
10 boundaries?
11 MR. SHILLINGER: Yeah, unless they were of
12 to trade their ROGOs to another government .
13 COMMISSIONER NEUGENT : But that ' s what you ' re
14 asking us to do .
15 COMMISSIONER WIGINGTON : But we ' ve done that
16 with Key West before at Oceanside Marina, Kings
17 Pointe Marina, during that issue, and Harbor House .
18 MR. SHILLINGER: There ' s been some transfers,
19 especially for affordable housing, between the
20 jurisdictions in the past .
21 COMMISSIONER WIGINGTON : Jabour ' s Trailer Park
22 was one that some of those were proposed to be
23 transferred.
24 MR. SHILLINGER: And at some point we need to
25 develop a policy if the ROGO spicket ever is
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1 turned off or in anticipation that it ' ll get turned
2 off about a methodology for how you transfer these
3 and how they ' re valued and whatnot . We just haven ' t
4 gotten to that point in our evolution of our Comp
5 Plan .
6 COMMISSIONER WIGINGTON : Let ' s face it, we ' re
7 using the same water, we ' re using the same
8 electricity, we ' re using the same roads, so, I mean,
9 a lot of the issues that are considered in planning
10 we share anyway, so .
11 COMMISSIONER NEUGENT : What ' s in it for Big
12 Pine? I mean, you ' re taking away value .
13 MR. SHILLINGER: Right . That is a good
14 question .
15 COMMISSIONER NEUGENT : You ' re taking away
16 value, so what ' s the developer, if we go along with
17 this, what ' s this developer going to do for the Big
18 Pine area?
19 MR. SHILLINGER: Nothing, except --
20 COMMISSIONER NEUGENT : Because we ' re adding a
21 lot of value to this property.
22 MR. SHILLINGER: Absolutely. To wherever it
23 goes . Absolutely. This is on nothing for Big
24 Pine . This is, these planning areas are part of it,
25 as I understand it, Christine is a planner, she can
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1 explain it much better than I , but part of it is you
2 plan for the uses and the infrastructures for the
3 planning areas, and so you ' re taking away from that
4 area that ' s been designated as its area . Now,
5 You ' re right . You ' re taking away some development .
6 COMMISSIONER NEUGENT : Right . You ' re taking
7 away value from a community that happens to be
8 within Unincorporated Monroe County and you ' re
9 g iving it to a developer to transfer it and maximize
10 his value, and what ' s he doing for the community?
11 Or has DCA even asked that question?
12 MR. SHILLINGER: No .
13 COMMISSIONER MURPHY : What ' s in it for Big
14 Pine? I mean, do they get extra credits for their
15 mitigation?
16 MR. SHILLINGER: If we were to acquire the
17 property and allow him to move it off, you know,
1B maybe if we did some sort of, you know, if he would
.19 dedicate it to us and we could get the H that we can
20 use as part of our H bank, then that might be of
2.1. value to Big Pine, but we haven ' t one far enough
22 that --
23 COMMISSIONER NEUGENT : That ' s a given . That ' s
24 going to be an as-of-right situation . If he moves
25 it off we automatically get that . So he ' s not
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1 giving it to us . And I 'm discussing this from a
2 private sector side in my mind.
3 MR. SHILLINGER: Right . I understand. So --
4 MAYOR CARRUTHERS : So not only is the developer
5 getting what he wants, we ' re not getting anything
6 and the municipality is getting this value .
7 COMMISSIONER WIGINGTON: And it may be a small
8 consideration, but consider how the sales tax is
9 divided between the areas .
10 COMMISSIONER NEUGENT : To further define those
11 sub-areas, in some of the arguments that we had
12 years ago, or discussions, when the City of Marathon
13 and Unincorporated Monroe County transferred
14 development from Marathon into Duck Key, Pritam
15 built some affordable housing there and that was
16 part of the development, but that was a transfer
17 within what was, at least in everybody' s mind in the
18 discussion, was the same sub-area, outside the
19 municipality but in the same sub-area .
20 R. SHILLINGER: Before Marathon incorporated
21 they probably were in the same sub-area .
22 COMMISSIONER NEUGENT : This happened when
23 Marathon was incorporated.
24 MR. SHILLINGER: After they incorporated. But
25 it wasn ' t too far after the point when Marathon was
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I part of that same sub-area .
2 So the other option is just to go to hearing
3 and let the chips fall where they may, DCA will
4 probably prevail so this guy will not get his
5 conditional use, he still has a use on the property,
6 he has a house, he ' s got use of the property, so do
7 we have a taking? No . Do we have a Bert Harris
8 claim? Is it an inordinate burden? Maybe there ' s
9 some exposure there . And if he does, we have
10 another to at the apple to come back and maybe fix
11 that with a settlement under the Bert Harris
12 provision .
13 COMMISSIONER NEUGENT : But why can ' t we come to
14 a decision based upon what ' s in the best interest,
15 number one, of Unincorporated Monroe County and Big
16 Pine Key?
17 MR. SHILLINGER: What would you like to see me
18 include that in there so I can go back and
19 negotiate?
20 COMMISSIONER WIGINGTON : And we ' re still at the
21 mercy of DCA and someone who might not want to lose
22 their job. So it ' s not what benefits the County,
23 it ' s someone not wanting to lose their job in DC A,
24 which that to me is --
25 MR. SHILLINGER: And that ' s my reading of the
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1 tea leaves a little it .
2 COMMISSIONER WIGINGTON : Absolutely.
3 Understood.
4 COMMISSIONER NEUGENT : My thinking, my private
5 sector brain ' s doing this, we ' re creating jobs if we
6 can come to some kind of an agreement that doesn ' t
7 violate our own personal principles as far as
8 development goes, so if we have a hand in designing
9 how this is going to work and the County and Big
10 Pine benefit from it, why wouldn ' t we do it? by
11 wouldn ' t we propose it to DCA?
12 MR. SHILLINGER: Okay .
13 COMMISSIONER NEUGENT : And the developer at the
14 same time?
15 COMMISSIONER WIGINGTON : So come up with
16 something .
17 MAYOR CARRUTHERS : What is it that you ' re
18 proposing?
19 COMMISSIONER NEUGENT : I don ' t want to be
20 accused of cutting deals with developers . I
21 wouldn ' t come up with something outside of this, but
22 1 think it ' s something that we ought to be thinking
23 about and discussing in this type of environment .
24 COMMISSIONER MURPHY: But this is a perfect
25 time .
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1 COMMISSIONER RICE : Bob, I have a question, and
2 this is -really only one angle of this, because as
3 you look at this, because there are several moving
4 parts here to any resolution, I 'm a bit
5 uncomfortable, as I think you are, with transferring
6 these rights from Unincorporated Monroe County into
7 an incorporated area . Certainly I see some
8 negatives on that . If we were to address only that,
9 would be it be possible that we could allow that
10 transfer to any unincorporated area no of this
11 location, which of include Key Largo, wherever?
12 COMMISSIONER NEUGENT : Do you have a problem
13 with it being transferred to Marathon or Islamorada?
14 COMMISSIONER RICE : Yeah .
15 MAYOR CARRUTHERS : I do .
16 COMMISSIONER NEUGENT : Why?
17 R. SHILLINGER: Well, it gives you at least if
18 you have these rights that are available within the
19 unincorporated area that somebody who has a
20 potential takings claim within the unincorporated
21 area can go out and acquire those transferrable
22 development rights and bring them in, to transfer
23 the ROGO exemption and bring that to their property,
24 then that is less of an opportunity for the to
25 ripen a takings claim because we can point to that
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and say look, you have a, I mean, assuming Sugarloaf
2 Lodge was farther up the chain and Lloyd Good was
3 out there looking for additional units to build a
4 campground or expand the lodge, and I 'm sure
5 there ' s, I just can ' t think of anything up in the
6 Key Largo area, but one of our defenses in that type
7 of case is look, there ' s a market for these
8 transferrable ROGO, even though we have a moratorium
9 on new ROGO allocations, you can go get the from
10 existing developers who have the and buy them and
11 bring the in . There ' s no taking there . So it
12 helps us defend against the taking cases .
13 COMMISSIONER NEUGENT : Okay. Setting that
14 aside, smart growth, all planning is to move
15 development into developed areas and move it
16 outside --
17 MR. SHILLINGER: Of habitat . I get that .
18 You ' re looking from the big picture .
19 COMMISSIONER NEUGENT : So, and the other thing,
20 addressing the value part of it, setting aside my
21 other comments earlier, is that if somebody builds
22 and develops something, whether it be in Marathon,
23 Key West, are we have property values of which
24 generates taxes for the County. So we ' re not losing
25 these anything when you talk about ad valorem tax
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1 base .
. SHILLI . ' re losing some .
3 MAYOR H S ; Yeah, we are . Becausewe ' re
losing, what, seven ills?
ISSI T ® You get ad valorem taxes
from Key West .
7 MR. ILLI . Right . But youdon ' t get the
same amount, the same ec nta o of the take that
9 you would get from the unincorporated area . You get
10 less as a percentage of their overall tax bill than
11 you get from --
12 COMMISSIONER I I t .
IL I G Rd And if the bill in the
14 legislature goes throe that ' s going to have us
15 fighting with of all the taxing entities over the
16 amount --
17 MS . HUTTON : Two percent collectively of the
18 municipalities, the ounty' s, and the special
19 districts, which e s that we ' ll e fighting with
20 the municipalities and the special districts as to
21 how much tax and special assessments --
22 COMMISSIONERU T ® We get the same amount
23 of tax from KeyWest when it ' s countywide taxes that
24 are being assessed.
25 . S LI G R® Right . But then there are
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some municipalservices taxes that we get .
2 COMMISSIONER IGI G O : Idon ' t understand
3 what you mean by that . Because you don ' t .
COMMISSIONERG You absolutely do .
If a house is built for countywide services that we
provide in Key West they pay the same amount o
7 taxes as I do in Marathon or UnincorporatedMonroe
County.
COMMISSIONER IGI . Got you . Okay.
10 COMMISSIONER I t it ' s a smaller total?
11 COMMISSIONER T : No, it ' s not a smaller
12 total, because the only thing that we don ' t tax on
13 is municipal service taxing unit which, her it ' s
4 municipal taxes that are being paid. So the Cityo
15 Marathon, Islamorada, and KeyWest charge through
5 MSTU, which is a tax for that particular area for
17 municipal services . Their garbage tax .
18 COMMISSIONERIGI O : I 'm not sure what ' s
19 that term that you ' re referring to right now, but
20 I 'm lost .
1 COMMISSIONER NEUGENT : What you were saying
22 about the seventeen ilio dollars of taxes that
23 Keyes as .
24 MS . : He ' s, I think what he ' s saying s
25 there ' s an amount of tax that the County levies
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I countywide . That is imposed on the municipalities
2 to the same extent that it does on the
3 Unincorporated County. Then the County has some
4 separate units it taxes that the cities have their
5 own separate taxing for . I think that ' s at you ' re
6 saying .
7 COMMISSIONER NEUGENT : Yeah.
8 S . HUTTON: So yes, there ' s some portion of
9 our tax that is levied everywhere .
10 COMMISSIONER RICE : Bob, my suggestion is that
11 if you ever want any direction on this you need to
12 come to us with a recommendation .
................ 13 MR. SHILLINGER: Okay. Well, my recommendation
14 is to remand and go back and allow us to put more
15 evidence into the record and maybe DCA won ' t object
16 this time around and give them enough reason not to
17 object and then the matter goes away.
18 COMMISSIONER WIGINGTON : Okay . That means we
19 start all over again?
20 MS . HUTTON : No . That means that we get their
21 transient transfers, right?
22 MR. SHILLINGER: No . What that would get --
23 well, assuming that the Planning Commission voted
24 the way they did the last time and the application
25 didn ' t change, it would go back to the Planning
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Commission, and what they of approval for was ten
2 camping units, which could be tents or RVs, on Big
3 Pine .
4 MAYOR CARRUTHERS : On that property.
5 MR. SHILLINGER: Right .
6 COMMISSIONER WIGINGTON : So you start all over
7 an by going back to the Planning Commission?
8 MAYOR CARD UTHERS : Well, do you have to?
9 MR. SHILLINGER: This would be, a remand would
10 be it would go back to the Planning Commission .
11 When you say start all over, you ' re not going to DRC
12 and everything else . But yes, you ' re going back to
........... 13 the Planning Commission to consider additional
14 evidence, consider the same evidence, and reach a
15 decision, and then DCA can take whatever decision
16 they want from there . That ' s the cleanest, and
17 that ' s our recommendation, because it allows us
18 potentially to keep the development on Big Pine,
19 which has its pluses and its minuses, but in terms
20 of the economic utility of Big Pine there ' s some
21 value there to Big in if you have people coming
22 and staying there . And it may solve the problems
23 DCA has with not having enough evidence in the
24 record that there was enough prior use to justify
25 it .
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1 COMMISSIONER WIGINGTON : Okay.
2 MR. SHILLINGER: But that ' s our recommendation.
3 1 just wanted to get some direction from you as to
4 whether you would prefer to go that way or whether
5 you would prefer to explore going off-site .
6 COMMISSIONER NEUGENT : Hold on a minute . This
7 is a complex situation here because of the H value
8 and the Habitat Conservation Plan, because if that
9 development does transfer off of Big Pine Key it ' s
10 probably going to help us with our H value, which is
11 next to nonexistence on Big Pine Key, for
12 development that could turn into a takings case .
13 MR. SHILLINGER: True .
14 COMMISSIONER WIGINGTON : So you ' re saying
15 moving it off has an advantage for the H value for
16 everyone?
17 COMMISSIONER NEUGENT : That ' s correct .
18 MS . HUTTON : But the County is getting
19 something .
20 MAYOR CARRU THE RS : How valuable is the H value?
21 COMMISSIONER NEUGENT : If the guy wants to
22 transfer the and maximize his asset, it would be in
23 transferring the off of Big Pine Key . That ' s a
24 no-brainer .
25 COMMISSIONER WIGINGTON : Sure .
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. S ILLI R: What we would want in
2 return --
COMMISSIONER . Your recommendation
doesn ' t take that into consideration .
. . We could allowthem to
transfer the rights to that house someplace else .
7 COMMISSIONER MURPHY : ?
. S is to take all of the
development rights, move them someplace else, and we
10 get the land.
11 COMMISSIONERAnd the house remains?
12 ISI . Legal question. Can we
13 even talk to a developer as that being part of an
14 agreement?
15 MS . HUTTON : I think that ' s part of negotiating
16 the settlement . You can explore all possibilities .
7 MR. S ILLI . I mean, it ' s not a contract
18 zoning for that --
19
ISSI I 'm saying sometimes
20 you can ' t get into these quid pro quo discussions .
21 . That ' s why you have contract
22 zoning cases, because you get a deal that ' s so
23 appealing to everybody and somebody else challenges
24 it .
25 COMMISSIONER IGI GTWhat ' s it zone now?
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1 MR. SHILLINGER: It is zoned, it was
2 Destination Resort, and now it is --
3 COMMISSIONER WIGINGTON : See, I questioned
4 whether it ever existed as transient units,
5 campgrounds , what we typically think of that . I
6 mean, Outward Bound or Boy Scouts camp --
7 COMMISSIONER NEUGENT : You of to remember,
8 Kim, this goes back, probably predates the
9 Comprehensive Plan, so you had as-of-right
10 developments that existed before the Comprehensive
11 an that you ' re going to wind up in a takings case
12 if you don ' t respect those as-of-rights .
13 COMMISSIONER WIGINGTON : But Boy Scout tents
14 end up being hotel rooms .
15 MR. SHILLINGER: It was zoned Destination
16 Resort . The board changed that to Suburban
17 Residential in, it looks like 2004 .
18 COMMISSIONER WIGINGTON : Why did they change
19 it?
20 MR. SHILLINGER: I don ' t know that .
21 COMMISSIONER WIGINGTON : Did he have it
22 changed?
23 MR. SHILLINGER: No . He didn ' t buy it, he
24 bought this after this change went into effect .
................ 25 COMMISSIONER WIGINGTON : So he bought it
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1 Suburban Residential?
2 MR. SHILLINGER: Right .
3 MAYOR CARRUTHERS : Which is, what ' s the
4 density? One per acre?
5 MR. SHILLINGER: I think it ' s five . I ' d have
6 to look that up . I don ' t have that .
7 MAYOR CAR RUT HERS : Well, that ' s a whole
8 different thing depending on what the density is for
9 Suburban Residential .
10 MR. SHILLINGER: And the FLUM went from Mixed
11 Use to Residential .
12 COMMISSIONER NEUGENT : And we do not want to
13 establish any platted property rights on Big Pine
14 Key because we don ' t have enough permits right now
15 to give out .
16 COMMISSIONER MURPHY : Bob, the an owns this
17 piece of property?
18 MR. SHILLINGER: Yes .
19 COMMISSIONER MURPHY: He himself is a
20 developer, or he wants to sell just the allocations,
21 the whatever ' s, to someone, to a developer?
22 MR. SHILLINGER: He bought it, in my
23 understanding -- now, don ' t take this as gospel, but
24 my understanding is that he bought it with the
25 intent to putting in a, to operating a campground,
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then it morphed into it was goina to be another
2 Outward Bound type of thing, and that ' s what of the
3 staff ' s recommendation for approval, and then it
4 morphed into RVs, and now that he ' s met this
5 roadblock, from what I understand, and some of this
6 information comes from his attorney, Mr . Greenman,
7 so --
8 COMMISSIONER MURPHY: And the roadblock is?
9 MR. SHILLINGER: The roadblock was the DCA
10 objection, the DCA appeal .
11 MAYOR CARRUTHERS : So if can we remove the
12 roadblock, then he ' s home free with what he wants to
13 do in the first place?
14 COMMISSIONER NEUGENT : On Big Pine .
15 MR. SHILLINGER: on Big Pine, or allowing him
16 to get back his investment by selling these
17 elsewhere .
18 COMMISSIONER MURPHY : Are you going to go for
19 both at one time? I thought you were going to go
20 for the Planning Commission?
21 MR. SHILLINGER: My recommendation would, that
22 is my preferred option but I 'm here to, you now,
23 get your guidance . It ' s your decision on at you
24 want to do on this lawsuit .
25 COMMISSIONER MURPHY : I understand. But what
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1 you have as a preference is to go back to the
2 Planning Commission with more evidence, et cetera,
3 et cetera . Okay, fine .
4 MR. SHILLINGER: And if he gets his permit,
5 fine . He ' s of a use . If he doesn ' t, then he may
6 have other options, but he still has use of the
7 property because he ' s of a house on it . He may
8 have a very nice one . He may be having a house just
9 like the neighbor to the not soon, because he ' s
10 got a nice five®a piece of property . But there ' s
11 value, as Commissioner Neu gent pointed out, in the
12 H .
13 Do you want to break this and come back after
14 we ' ve closed the meeting and we can talk to
15 Christine about the H?
16 COMMISSIONER NEUGENT : The issue, and if he
17 comes in and does that, we ' re probably going to lose
18 more H factor because of the development?
19 MR. SHILLINGER: I mean, there ' s multiple
20 moving parts .
21 MAYOR CARRUTHERS : He owns the property and he
22 bought it when it was developable .
23 COMMISSIONER NEUGENT : Well, until DCA stepped
24 in and said it ' s not developable .
25 MAYOR CARRUTHERS : But who ' s going to get
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1 caught in the crosshairs is us . It ' s not DCA.
2 COMMISSIONER NEUGENT : We approved it . by
3 would get caught in the crosshairs?
4 MR. SHILLINGER: Well, sometimes you still get
5 dragged into these things .
6 COMMISSIONER NEUGENT : Well, I understand that .
7 COMMISSIONER MURPHY: But would you be willing
8 to block that recommendation simply because of the H
9 factor?
10 COMMISSIONER NEUGENT : Bob stated it . When
11 he ' s trying to maximize his value . So I would say
12 if you ask the owner of this property now, would you
......... 13 rather be able to transfer off of Big Pine or do you
.
14 want your development, and clearly the answer is
15 going to be give me those development rights that I
16 can transfer elsewhere and that maximizes my
17 deve1opment .
18 MAYOR CAR RUTHERS : by do you assume that? He
19 bought it . Do you think he bought it with the
20 intention of moving the rights someplace else or did
21 he buy it because he wanted to put a campground
22 there?
23 COMMISSIONER NEUGENT : Would you rather have a
24 million-dollar use in Islamorada or on Big Pine?
25 MAYOR CAR RUTHERS : Frankly, Big Pine .
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I COMMISSIONER NEUGENT : Stay out of development,
2 then . A dry lot in Big Pine over a waterfront
3 property?
4 MR. SHILLINGER: It ' s a nice property.
5 COMMISSIONER NEUGENT : I know, but it ' s on Big
6 Pine . And I don ' t say that in a derogatory manner .
7 I 'm just stating the facts .
8 COMMISSIONER MURPHY: But, you know, the bottom
9 line is the man applied for something, we agreed,
10 DCA turned it down, Bob thinks there ' s a way to
11 maybe get him what he applied for in the first
12 place, let ' s go with this .
13 MR. SHILLINGER: Which is a cleaner process .
14 COMMISSIONER MURPHY : Yes . Let ' s go with this .
15 If it doesn ' t work --
16 COMMISSIONER WIGINGTON: Come back.
17 COMMISSIONER MURPHY : -- then come back.
18 MR. SHILLINGER: I hear two people like that,
19 but I don ' t know --
20 COMMISSIONER NEUGENT ; I don ' t have a problem
21 with that . I 'm just asking the question, are we
22 maximizing for the County and for Big Pine what ' s on
23 the table right now?
24 COMMISSIONER MURPHY: Just don ' t think about
............... 25 bringing those to Key Largo .
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1 MR. SHILLINGER: We ' re going to have to bring
2 them back and do it at a later date . So I have your
3 direction . We ' ll bring it back and we can have that
4 discussion.
5 MAYOR CARRUTHERS : Okay® So the closed session
6 is closed, and open the doors and we will reconvene .
7 (Proceedings concluded at 2 : 22 p .m. )
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1 C E R T I F I C A T E
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2 STATE OF FLORIDA �
3 COUNTY OF MONROE �
, Susan L. McTaggart, Court Reporter and Notary
Public, State of Florida at Large, do hereby certify that
as authorized to and did report by stenotype the
proceedings in the above-entitled matter, and that the
8 transcript is a true record of said proceedings .
Dated this 1st day of July, 2011 .
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Susan L. McTaggart, Court Reporter
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