Item O1 0.1
t, BOARD OF COUNTY COMMISSIONERS
County of Monroe � "1 Mayor Sylvia Murphy,District 5
The Florida Keys l'U � � Mayor Pro Tern Danny Kolhage,District 1
�pw° Michelle Coldiron,District 2
Heather Carruthers,District 3
David Rice,District 4
County Commission Meeting
June 19, 2019
Agenda Item Number: 0.1
Agenda Item Summary #5476
BULK ITEM: No DEPARTMENT: County Attorney's Office
TIME APPROXIMATE: STAFF CONTACT: Bob Shillinger(305) 292-3470
N/A
AGENDA ITEM WORDING: County Attorney Report for June 2019.
ITEM BACKGROUND: See attached.
PREVIOUS RELEVANT BOCC ACTION: N/A
CONTRACT/AGREEMENT CHANGES:
N/A
STAFF RECOMMENDATION: N/A
DOCUMENTATION:
County Attorney Report June 2019
VR report (.pdf)
FINANCIAL IMPACT:
Effective Date: N/A
Expiration Date:
Total Dollar Value of Contract:
Total Cost to County:
Current Year Portion:
Budgeted:
Source of Funds:
CPI:
Indirect Costs:
Estimated Ongoing Costs Not Included in above dollar amounts:
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Revenue Producing: If yes, amount:
Grant:
County Match:
Insurance Required:
Additional Details:
REVIEWED BY:
Bob Shillinger Completed 06/10/2019 11:55 AM
Kathy Peters Completed 06/10/2019 3:10 PM
Board of County Commissioners Pending 06/19/2019 9:00 AM
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County of
Monroe � BOARD OF COUNTY COMMISSIONERS
r
`�M < s�r Mayor Sylvia J.Murphy,District 5
_ Mayor Pro Tern Danny L.Kolhage,District 1
The Ylle Flollda.Keys �' y Michelle Coldiron,District 2
a Heather Carruthers,District 3
IHa
David Rice,District 4
Robert B.Shillinger,County Attorney—
Pedro J.Mercado,Assistant County Attorney** Office of the County Attorney
Cynthia L.Hall,Assistant County Attorney** 1111 12'Street,Suite 408
Christine Limbert-Barrows,Assistant County Attorney** Key West,FL 33040
Derek V.Howard,Assistant County Attorney** (305)292-3470—Phone
Steven T.Williams,Assistant County Attorney** (305)292-3516—Fax
Peter H.Morris,Assistant County Attorney
Patricia Fables,Assistant County Attorney
Chris Ambrosio,Assistant County Attorney*
Paunece Scull,Assistant County Attorney
**Board Certified in City,County&Local Govt.Law
N
To: Mayor Murphy & Commissioners
From: Bob Shillinger, County Attorney
Date: June 6, 2019
Re: June 2019 County Attorney Report
Closed Sessions at 6/19/2019 BOCC Meeting
�s
1. Halley Engineering Contractors, Inc. v. Monroe County, CA-P-18-768. Contractor
failed to design toll facility on Card South Road to comply with code sued for breach
of contract because the County refused to pay for remedial work made necessary
by contractor's its design professional's error in a design-build contract. Suit was
filed on 10/24/18 and County counterclaimed on 12/27/18 for breach of contract
and a claim for breach of the bond against the Surety, Travelers Casualty and
Surety Company of America. The parties are in the discovery phase. The parties
mediated the matter on 5/30/19 and reached a tentative Settlement
Agreement on 5/31/19, which is on the agenda as item O-2 for the BOCC's
6/19/19 meeting. A closed session is also scheduled to be held at the Board's
6/19/19 meeting. If the BOCC approves the Settlement Agreement prior to
the closed session, the closed session would be unnecessary.
�s
2. Monroe County v. Newsom, Kenneth, 17-CA-37-K (code lien foreclosure) — On
6/19/19, the BOCC is schedule to discuss a proposed settlement in closed
session.
3. Monroe County v. Yawt, Michael, 18-CA-831-P (code lien foreclosure) — On
6/19/19, the BOCC is scheduled to discuss a proposed settlement agreement
in closed session.
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Administrative Cases of Interest
4. Base Camp Appeal-(FEMA-4337-DR-FL- Monroe County, PA ID 087-99087-00,
Project Worksheet (PW) #160351. On 12/19/19, the County received FEMA's
denial of$6,593,062.05 for the Monroe County Base Camps. The County's appeal
was filed on 2/15/19 with the Florida Dept. of Emergency Management (FDEM)
without the benefit of counsel. The County Attorney's Office and outside counsel
supplemented the initial appeal on 4/15/19. FDEM filed the Appeal with FEMA on
4/15/19. FEMA's Regional Administrator (RA) has 90 days to render a first appeal
decision or request additional information from the applicant. As of the date of this
report FEMA has not issued a decision or made a request for additional
information.
5. FEMA-4337-DR-FL—Monroe County, Public Assistance ID 087-99087-00, Project
Worksheet (PW)#36045 (Stiglitz House Appeal) (filed May 10, 2019)—The County
filed this appeal of FEMA's denial of reimbursement for an estimated $95,079 in
damages sustained by the Stiglitz House as a result of Hurricane Irma with FDEM
on 5/10/19. The County had previously received a $13,454 payment from FEMA
for Hurricane Wilma damage. FEMA's denial is based on its belief that the County
did not"obtain and maintain" wind and flood coverage for the House, a requirement
after the first FEMA payment. FDEM has 60 days to review and forward the appeal
to FEMA. As of the date of this report the Appeal had not yet been submitted to
FEMA. Once it is submitted to FEMA, FEMA has 90 days to render a first appeal �s
decision or request additional information.
6. Nuclear Regulatory Commission Docket Nos. 50-250/251-SLR. Florida Power
and Light is seeking approval of a second twenty-year license renewal term for
Units 3 and 4 at the Turkey Point facility. Environmental groups (including
Southern Alliance for Clean Energy (SACE), Natural Resource Defense Council,
Friends of the Earth, and Miami Waterkeeper), are seeking to attach conditions to
the license renewal, including the replacement of the cooling canals with
mechanical draft cooling towers. Monroe County was participating in the
administrative hearing as an Interested Governmental Party (IGP) in support of
SACE. On 4/9/19, SACE filed a Notice of Withdrawal stating it was withdrawing
as part of a global settlement of their disputes with FPL regarding the Cooling
Canal System for Turkey Point Units 3 and 4. Monroe County is reaching out to
the environmental groups for possible realignment as an IGP.
Other Pending Trial Court Cases of Interest
7. Maschal et al. v. Monroe County and FKAA, CA K 19-186 — Following the Court's
dismissal of the Delaney lawsuit, on 2/28/19 the same attorney filed a new lawsuit
against Monroe County and FKAA on behalf of Banks Prevatt and 11 other
individuals. The complaint seeks essentially the same relief as the Delaney
lawsuit. The County was served on 4/1/19. The County and FKAA filed a joint
motion to dismiss, on the grounds that the ordinance on which the complaint was
based was repealed and replaced by the BOCC earlier this spring, and therefore,
the complaint is moot. A hearing has not yet been set.
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8. Disaster Solutions, LLC v. Monroe County, CAK19-32. An action for breach of
contract and other claims arising from a firm that had a purchase order to provide
services which were capped at $49,999 but who submitted invoices in excess of
$700,000. The Court granted the County's motion to dismiss on 4/4/19. Disaster
Solutions filed a second amended complaint on 4/8/19, which the County moved
to dismiss on 5/3/19. A hearing on the motion has been scheduled for 8/15/19.
9. Burke Construction Group, Inc. v. Monroe County, CA-M 19-80 - On 3/18/19, Burke
Construction Group filed a petition against the County for injunctive relief and writ
of mandamus, seeking to compel the County to award the contract for the
Marathon Library and Adult Education Center to Burke rather than to the first-
placed proposal, Pedro Falcon. The Court denied Burke's request for an
emergency hearing on a request for temporary injunction. The County still has
not been served.
10.Keith Munt v. Monroe County — CAK 16-330. In this code lien collection case, the
property owner filed a counterclaim seeking damages and other relief. After the CL
closed session on 4/17/19, the property owner has proposed a revised
settlement offer that will be presented to the Board once it has been reduced
to writing in an appropriate format.
11.Monroe County v. Purdue Pharma L.P. et al., No. 4:19-cv-10049. This case was
filed by Monroe County against opioid manufacturers/marketers and distributors
on 4/3/19. The complaint seeks damages including punitive damages, attorneys' �?
fees, costs, and injunctive relief. The case is part of multi-district litigation. The
case is at the early discovery stages.
12.AshBritt, Inc. v. Monroe County & FDOT, CA-K-17-802. AshBritt recently filed a
second amended complaint against the County for breach of contract and a new
claim for breach of implied covenant of good faith and fair dealing. The County will
file its answer and affirmative defenses to the complaint, and a motion for summary
judgment concerning the three remaining AshBritt invoices and the new
claim. Discovery is ongoing. The parties are in the process of filing trial lists. The
County has not received AshBritt's renewed formal settlement demand that
AshBritt insisted it would provide several months ago.
13.Roy's Trailer Park v. Noel & Monroe County, 19-CA-175-K (lower tribunal: CC-K-
18-112). Declaratory Judgment action filed by trailer park against County as part
of its eviction suit against its tenant. County filed counterclaim asking for
temporary injunction prohibiting occupancy at the park until serious fire and life
safety issues have been addressed, and for appointment of a receiver, on 10/4/18.
A status conference was held on 2/12/19. An evidentiary hearing on the County's
request for temporary injunction to close the park was set for 4/1/19 but was taken
off calendar because the case was transferred from County Court to Circuit Court.
The hearing will be re-set. A hearing was held on 6/10/2019 after which Judge
Helms granted Monroe County's Application for an Inspection Warrant.
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14.Keith & Cheri Cohen v. Monroe County, 15-10167-CIV /USCA 17-15552-G — On
9/20/18, the 11t" Circuit Court of Appeals affirmed a 2017 ruling by U.S. District
Judge Jose Martinez, when he found in favor of the County by ruling that the
County's workforce housing requirement that income must be earned in the County
did not discriminate against the Cohens due to their asserted disabilities. The
Court ordered the Cohens to sell their property to a qualified buyer within 6 months
and vacate the premises. The Cohens have indicated that they have recently sold
the property to their daughter, a recent college graduate. The Court-ordered post-
judgment deposition of the daughter was taken on 2/8/19.
15.Gomez v. Monroe County, 18-cv-23740-G —A second serial ADA plaintiff filed suit
on 9/12/18 alleging that certain portions of the County's website are inaccessible
to the visually impaired. The County filed an answer on 10/31/18. On 4/2/19, the
court stayed the case, pending resolution of a similar case currently pending in the
11t" Circuit. The plaintiff has filed a motion seeking to lift the stay.
16.Sirena Key, LLC v. Monroe County, 18-CA-704-P. On 9/21/18, Sirena Key filed an
action for declaratory relief seeking to declare that the County's vacation rental
ordinance is preempted by state law due to alleged changes in the County's
enforcement practices. The County filed its answer to the complaint on 1/22/19
and is conducting discovery. Also pending in the Circuit Court is an appeal from
the Special Magistrate's decision finding Sirena Key in violation of the vacation
rental ordinance, Sirena Key, LLC v. Monroe County, 18-AP-3-K. In this case, the
Appellant Sirena Key has filed a motion to stay the appeal pending resolution of
the 16t" Judicial Circuit Case. The County has filed an opposition. No hearing has
been set yet on the motion.
17.Kresser v. Monroe County, 18-CA-521-P. Mr. Kresser filed his action for
declaratory relief and to quiet title on 7/24/18. The property at issue is located
along Card Sound Road. In 1967, the County obtained from Mr. Kresser's
predecessor in title a right-of-way easement for the construction and maintenance
of Card Sound Road. Mr. Kresser is seeking to invalidate the easement based on
an allegation of abandonment. The case is proceeding with discovery, and the
County expects to file a motion for summary judgment within the next couple of
months. A case management conference scheduled for 5/17/19 was cancelled by
the court, which indicated it would be issuing a scheduled order setting the case
for trial sometime after October 2019.
18.Monroe County v. Magnolia 101, LLC. CA-P 13-945. This case began as the
County's complaint for an injunction and foreclosure of a code compliance lien.
The Court entered a judgment in favor of the County on 5/2/17. The property
owner appealed this decision to the Third District Court of Appeal (Case No. 3D-
17-1312). On 2/27/19, the Third DCA issued a "per curiam" opinion, affirming
the ruling of the lower court (in the County's favor). The case was returned to
the trial court on 3/19/19 to determine the final amount of the fines. The County
has filed a motion for an order enforcing the Court's final judgment in accordance
with the Third DCA's mandate and per curiam affirmance order, and has filed a
notice of the County's readiness to hold an evidentiary hearing to determine the
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final code enforcement fine amounts due. The County is currently coordinating
with Defendant's counsel to set a date for that post-judgment hearing.
19.Coral Hammock Rental v. Monroe County, 17-CA- 588-K. Coral Hammock sued
Monroe County on 7/25/17, seeking to declare that (1) state law preempts the
alleged reinterpretation of existing law by the County prohibit vacation rentals of
attached dwelling units in Mixed Use Districts; (2) properties within the definition
of Monroe County Code Section 134-1(b)(1) are not required to have an exemption
from the Planning Department prior to use as a vacation rental; (3) the doctrine of
nonconforming use protects Coral Hammock's use of its dwellings in the Coral
Hammock Community for vacation rentals; and (4) the doctrine of equitable
estoppel protects the vacation rental use. Monroe County filed a counterclaim
seeking injunctive relief to prohibit the continued vacation rental of the subject
property. On 1/15/19 Monroe County filed a motion for summary judgment on
Count II On 1/15/19 Monroe County filed a motion for summary judgment on Count
II, which will be amended to incorporate recent discovery, including several
depositions taken the May 28-31, 2019. Monroe County filed a motion to compel
discovery, which remains pending. The hearing on the County's motion
scheduled for 6/19/19 has been continued.
20.Kane County Utah v. United States of America, U.S. Court of Fed. Claims, 17-
793C. County joined a class action suit filed by Kane County Utah challenging the
federal government's payment under the Payment In Lieu of Taxes (PILT) program,
which partially compensates local governments for the loss of property tax �?
revenues when certain parcels are in ownership under the Department of Interior.
Kane County asserted that the federal government underpaid for the years 2015
through 2017. On 12/5/18, the Court of Federal Claims entered judgment in favor
of the plaintiff class of counties. On 1/11/19, the US filed a notice of appeal but
also stated that the Solicitor General had not decided whether to pursue the appeal
or not. On 3/8/19, the US was granted a 59 days extension of time until 5/17/19
for the Solicitor General to make that determination. The United States withdrew
its appeal. The next step is for the plaintiffs' attorneys to file their motions asking
the court to set attorneys' fees. The payments (after fees and costs) will be
distributed to the participating counties after that, probably in late 2019.
21.Galleon Bay Corp. v. Monroe County and State of Florida — 16t" Jud. Circ. Case
No. 02-CA-595-K. The developer/property owner appealed a final judgment in the
amount of $480,511 in her favor to the Third DCA; the County and State cross
appealed (Case No. 3d16-1502). On 9/12/18, the Third DCA affirmed the trial
court's decision in a per curiam decision, denying the property owner's claims of
error below and the issues raised by the State and County on our cross appeal.
The property owner's motions for rehearing, written opinion, and for rehearing en
banc were denied on 2/1/19. The appellate court issued its mandate on 2/19/19
returning jurisdiction to the trial court. On 3/19/19, Galleon Bay filed a motion to
invalidate the final judgment; the County filed a response. A hearing on
Galleon Bay's motion is set for 7/30/19.
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Appellate Cases of Interest
22.Monroe County v. Sugarloaf VFD, Inc. & Sugarloaf Wi-Fi, Inc. (Wi-Fi), 3DCA#:
3D19-224 and 3D19-434; L.T. #: 17-CA-631 X. In this case, the County filed an
action to declare a lease between SVFD and Wi-Fi invalid on the grounds that the
SVFD had not approved the lease in an open meeting. The lower court entered
final judgment in favor of the County and voided the lease. Wi-Fi filed two notices
of appeal following rendition of each of the lower court's several orders. The record
on appeal was just recently submitted to the appellate court. Wi-Fi will move to
consolidate its two cases and file its appellant brief. The County will then file its
appellee brief. On 6/12/19, the SVFD Board will consider a proposed
settlement agreement to transfer the property to the County to satisfy the
County's claim for fees and costs. If approved, the Settlement Agreement
will be presented to the BOCC on 7/17/19.
23.Monroe County & State of Florida v. Donald Davis (Collins) — 3D17-500. On
2/15/17, Judge Jones entered a final judgment in favor of Mr. Davis in the amount
of $347,475. The County filed a Notice of Appeal on March 7, 2017. Briefing was
complete in April 2018. Oral argument has NOT been scheduled at this writing.
There is no timetable for the Court to release its opinion.
24.KW Resort Utilities Corp. Rate Litigation (Florida Public Service Commission
Docket No. 20170141-SU); appellate case number 1D18-4212. In June 2017,
KWRU sought approval of a second rate increase from the Public Service U
Commission (PSC) following a prior increase in March of 2017. After a public
hearing was held, the PSC partially granted KWRU requested increase in an order
dated 9/4/18. The County filed an appeal of the PSC's decision on 10/3/18. The
appeal was consolidated with an appeal filed by the Office of Public Counsel. The
County's initial brief was filed 2/11/19. The utility has requested and been granted
an extension of time to file its answer brief, to 5/13/2019. The utility and PSC staff
have requested a further time extension of one month. The County and OPC have
indicated that they will not object.
Other Matters of Interest
25.Vacation Rental Prosecutions. In May of 2019, the Code Compliance Department
presented 30 vacation rental cases to the Special Magistrate. Of those, 29
resulted in findings of violation including 5 by stipulation. There were 2 repeat
violations. The Special Magistrate imposed fines totaling $99,900.00 in fines; 1
case was continued. See attached spreadsheet.
26.Less than Fee Program. Under this program, the County purchases the
development rights on vacant properties for qualifying properties from willing
sellers. To date, there have been 207 applications since the program launched in
October of 2018. The Board has approved 24 purchases. Staff has rejected 34
applications that did not satisfy the criteria for the program. To qualify, a property
owner must own the vacant lot adjacent to his or her dwelling unit and not have
otherwise retired the development rights to that vacant lot. More information on
the program can be found at: http-//www.monroecounty-fi.qov/1029/Less-Than-
Fee-Progr m.
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