Item P01 P.1
G BOARD OF COUNTY COMMISSIONERS
County of Monroe 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
August 21, 2019
Agenda Item Number: P.1
Agenda Item Summary #5478
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 August 2019.
ITEM BACKGROUND: See attached.
PREVIOUS RELEVANT BOCC ACTION: N/A
CONTRACT/AGREEMENT CHANGES:
N/A
STAFF RECOMMENDATION: N/A
DOCUMENTATION:
County Attorney Report August 2019
VR MONTHLY REPORT 2018-2019 (.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 08/06/2019 1:33 PM
Kathy Peters Completed 08/06/2019 1:40 PM
Board of County Commissioners Pending 08/21/2019 9:00 AM
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County of Monroe
BOARD OF COUNTY COMMISSIONERS
I
Mayor Sylvia J.Murphy,District 5
_ � Mayor Pro Tern Danny L.Kolhage,District 1
The Yle Florida,Keys �� � '��t� , Michelle Coldiron,District 2
Heather Carruthers,f
David Rice,DistrictDistrict 3
Robert B.Shillinger,County Attorney— .�
Pedro J.Mercado,Assistant County Attorney** Office of the County Attorney
Cynthia L.Hall,Assistant County Attorney** 1111 12'h 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
U)
To: Mayor Murphy & Commissioners
From: Bob Shillinger, County Attorney
Date: August 6, 2019
Re: August 2019 County Attorney Report
Closed Sessions at 8/21/2019 BOCC Meeting
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1. 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 to determine the final amount of the fines. An evidentiary hearing on the
amount of the fines is scheduled for 9/11/19. A closed session is scheduled
for 8/21/19.
2. 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 0
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. On 6/10/2019 Judge Helms granted Monroe County's
Application for an Inspection Warrant. The property has since been inspected and
the Building Department is preparing its inspection findings. A closed session
will be held in this case on 8/21/19. A trial has been set for 10/8 & 11/19.
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3. Burke Construction Group, Inc. v. Monroe County, CA-M 19-80 - On 7/11/19, Burke
Construction Group served an amended complaint on the County for promissory
estoppel (two counts) and declaratory judgment complaining of the County's bid
protest procedure and decisions to award contracts to other contractors for the
Marathon Library and Adult Education Center and Cudjoe Key Fire Station
projects. A closed session is scheduled for 8/21/19. The County will be
moving to dismiss amended complaint.
Administrative Cases of Interest
4. Base Camp Appeal-(FEMA-4337-DR-FL- Monroe County, PA ID 087-99087-00,
Project Worksheet (PW) #16035). 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) had until 7/15/19 to render a first
appeal decision or request additional information from the County but missed that
deadline. Outside counsel advised that Region VI is likely overwhelmed with
eligibility appeals and it is recommended that the County not push for a decision.
There is an arbitration option when a first appeal is pending for 180 days or more.
This allows for the applicant to pull the appeal and instead sent it to an arbitration
panel of three Administrative Law Judges employed by the Civilian Board of �s
Contract Appeals. The arbitration is set up as an independent, de novo review that
is supposed to result in a faster decision. The County Attorney's Office will
discuss the arbitration option with outside counsel in more detail in mid-
September and will update the Board on 9/18/19.
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5. FEMA-4337-DR-FL— Monroe County, Public Assistance ID 087-99087-00, Project
Worksheet (PW) #36045 (Stiglitz House Appeal) (filed 5/10/19) — The County
appealed 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 filed the appeal with FEMA on 7/8/19. FEMA's
Regional Administrator (RA) has 90 days or until 10/8/19 to render a first appeal
decision or request additional information from the County.
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
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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 has reached out to
the remaining environmental groups for possible realignment as an IGP and
continues to monitor the matter.
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.
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.
In the interim, Disaster Solutions filed an amended motion asking for leave
to file a Third Amended Complaint, which will also be heard on 8/15/19. �?
9. 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. The Board
rejected the property owner's proposed settlement agreement on 4/17/19; the
property owner rejected the County's counter-offer. A pretrial conference has
been scheduled for 8/15/19.
10.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. On
7/15/19, the County filed its initial statement describing damages. The case is at
the early discovery stages. A federal judge in Cleveland is considering
certifying all similar cases across the country into a class for settlement
purposes. A hearing on that motion is scheduled for 8/6/19.
11.AshBritt, Inc. v. Monroe County & FDOT, CA-K-17-802. AshBritt 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 filed its
answer and affirmative defenses to the complaint, and a motion for summary
judgment (MSJ) concerning the three remaining AshBritt invoices and the new
claim. Discovery is ongoing. The County filed its trial lists. The County's MSJ will
be set for hearing as soon as the Court has availability and it can be coordinated
with opposing counsel. The County never received AshBritt's renewed formal
settlement demand that AshBritt promised to provide.
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12. 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.
13.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 Court lifted the stay in July.
14.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. On 7/16/19, Sirena Key filed two motions for
summary judgment. Those motions are set for hearing on 10/7/19. Monroe
County will be filing cross-motions for summary judgment. 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.
15. 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 shortly. Trial is scheduled
for 10/3/19.
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16.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, which will be amended to incorporate recent discovery, including several
depositions taken May 28-31, 2019. Monroe County filed a motion to compel
discovery, which is set for hearing on 8/15/19.
17. 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. The federal government has chosen not to 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.
18.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. Galleon Bay's motion to invalidate the
final judgment was denied on 7/30/19. An appeal is expected. A closed
session is being requested for the 9/18/19 meeting.
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Appellate Cases of Interest
19.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 been set for 9/17/19.
20.Monroe County v. Sugarloaf VFD, Inc. & Sugarloaf Wi-Fi, Inc. (Wi-Fi), Case
numbers: 3D19-434 & CA K 17-631. The County sued both SVFD and Wi-Fi to
declare a lease between SVFD and Wi-Fi invalid on the grounds that SVFD had
not approved the lease in an open meeting. The trial court ruled in favor of the
County and voided the lease. Wi-Fi appealed but SVFD did not. As the prevailing
party against SVFD, the County has a claim for attorney's fees and costs. The
SVFD Board of Directors approved two Resolutions and a Settlement Agreement
that would settle that claim for fees and costs by transferring the property to the
County. The County held a closed session on 7/17/19 but deferred action on the
proposed Settlement Agreement with SVFD. WiFi's initial brief is due 8/21/19.
21. 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
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 and PSC each filed an answer
brief during the week of 5/25/19. The County and OPC filed reply briefs on
7/25/19. The County has requested oral argument.
Other Matters of Interest
22.Vacation Rental Prosecutions. In July of 2019, the Code Compliance
Department presented 32 vacation rental cases to the Special Magistrate. Of
those, all 32 resulted in findings of violation including 19 by stipulation. There were
no repeat violations. The Special Magistrate imposed fines totaling $115,600.00.
See attached spreadsheet.
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23.Code Fine Collections. Through May of 2019, the Code and Legal Departments
collected $1,268,713.73 in fines and costs through the first 8 months of the fiscal
year.
24. 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 232 applications since the program launched in
October of 2018. The Board has approved 32 purchases. Staff has rejected 60
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 for that vacant lot. More information on
the program can be found at: http-//www.monroecountv-fl.qov/1029/Less-Than-
Fee-Progr m.
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25.On 7/30/19, Assistant County Attorney Peter Morris learned that he successfully
passed his City, County and Local Government law certification test from the
Florida Bar. The certification recognizes him as a specialist in local government
law. Mr. Morris is one of only 291 - out of more than 100,000 lawyers admitted to
practice law in the State - to have earned this distinction. With Mr. Morris'
certification, eight of the ten lawyers currently employed in the Monroe County
Attorney's Office are Board certified specialists in City, County and Local
Government Law.
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#OF VR STAFF #VR CASES SCHEDULED #OF STIPS #OF CASES CONTINUED #OF CASES FOUND IN VIOLATION AMOUNT OF FINES REPEAT VIOLATORS DISMISSED REFERRED TO STATE ATTY
OCTOBER 2018 3 19 7 2 10 $76,834.00 1 0 0
NOVEMBER 2018 3 23 5 2 16 $86,818.00 2 2(sister cases) 0
DECEMBER 2018 NO HEARINGS SCHEDULED MONTH OF DECEMBER
JANUARY 2019 3 28 11 3 14 $153,050.00 3 0 0
FEBRUARY 2019 3 23 6 6 11 $104,000.00 3 0 1
MARCH 2O19 3 34 3 16 13 $111,700.00 2(1 is a TRI-PEAT) 2(active military) 2
APRIL 20191 3 46 16 0 30 $147,250.00 0 0 0
MAY 2019 3 30 5 11 24 $112,900.00 21 0 0
JUNE 2019 2 31 22 2 7 $100,480.00 2 0 0
JULY 2019 2 32 19 0 13 $115,600.00 0 0 1
AUGUST 2019
SEPTEMBER 2019
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