Item H1* 1:30 P.M. TIME CERTAIN *
BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date:
6/15/11 - MAR
Division: County
Attorney
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 Judi's
House, Inc. v. Monroe County, Case No. CA -K -10 -187.
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:
5/18/11 BOCC approved Closed Session for 6/15/11 @ 1:30 p.m. in Marathon
CONTRACT /AGREEMENT CHANGES:
N/A
STAFF RECOMMENDATIONS:
N/A
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 2ro5
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: Judi's House, Inc. v. Monroe County Key West& Monroe County, Case No.: 10-CA-187-K
Dear Mr.Madok:
Please find attached scans of the transcripts of two attorney-client closed sessions held before the Monroe County
Board of County Commissioners on June 15, 2011, and on October 17, 2012, 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
a DN:cn-Cynthia L.I I all,o-Monroe
County UOCC ou,email-hall-
rynthiaC monroecounty-tl.gov,
U5
Cynthia L. Half 1te:2024.Ot16115310 0500'
Senior Assistant Monroe County Attorney
Attachment: Scans of two Closed Session Transcripts dated 06/15/2011 and 10/17/2012
�� R
�; ���MEETING OF THE fin „ I I NA!,,"PR
MONROE COUNTY BOARD OF COUNTY COMMISSIONERS
ATTORNEY—CLIENT CLOSED SESSION
RE : JUDI ' S HOUSE, INC. , V. MONROE COUNTY
CASE NO. : CA—K-10-187
HELD AT THE
COMMISSION CHAMBERS
2798 OVERSEAS HIGHWAY
MARATHON, FLORIDA 33050
JUNE 15, 2011
1 : 32 — 1 : 50 P.M.
COMMISSIONERS PRESENT :
COMMISSIONER KIM WIGINGTON
MAYOR HEATHER CARRUTHERS
COMMISSIONER DAVID RICE
COMMISSIONER SYLVIA J. MURPHY
COMMISSIONER GEORGE NUGENT
STAFF PRESENT :
COUNTY ATTORNEY SUZANNE HUTTON
CHIEF ASSISTANT COUNTY ATTORNEY BOB SHILLINGER
ASSISTANT COUNTY ATTORNEY SUSAN GRIMSLEY
ASSISTANT COUNTY ATTORNEY DEREK HOWARD
COUNTY ADMINISTRATOR ROMAN GASTESI
0—
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1 MAYOR CARRUTHERS : I now close the public meeting .
2 And now, I would like to reopen the closed session .
3 MS . HUTTON : For the record, this meeting is being
4 held upon request of the County Attorney Suzanne Hutton,
5 who announced at a prior BOCC meeting held on May 18th,
6 that I needed advice in the matter of Judi ' s House, Inc . ,
7 versus Monroe County, Case Number CA K 10-187 . At that
8 meeting, the board approved holding today' s closed
9 session and public notice was given through public
10 announcement of the meeting, at the May 18th BOCC meeting
11 and through publication of the June 15th, 11 -- 2011 BOCC
12 meeting agenda on the County' s Web site .
13 For the record, and the benefit of the court
14 reporter, each of us will state our name and position
15 starting with the commission .
16 Commissioner Wigington, you want to start .
17 COMMISSIONER WIGINGTON : Kim Wigington, district one
18 commissioner .
19 COMMISSIONER RICE : David Rice, district four,
20 county commissioner .
21 MAYOR CARRUTHERS : Heather Carruthers, district
22 three, county commissioner .
23 COMMISSIONER NUGENT : George Nugent, district two .
24 COMMISSIONER MURPHY: Sylvia Murphy, district five,
25 county commissioner .
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1 MS . HUTTON : Suzanne Hutton, county attorney.
2 MR. GASTESI : Roman Gastesi, county administrator .
3 MR. HOWARD : Derek Howard, assistant county
4 attorney.
5 MS . GRIMSLEY : Susan Grimsley, assistant county
6 attorney.
7 MR. SHILLINGER: Bob Shillinger, chief assistant
8 county attorney.
9 MS . HUTTON : Just as a reminder, we will only be
10 discussing settlement negotiations and strategy relating
11 to litigation expenditures . You can not take decisive
12 action at this meeting . Any decisions the board would
13 make concerning this case would have to be done in a
14 meeting open to the public . And the attorneys can only
15 provide information, and you can provide direction to the
16 attorneys --
17 MR. SHILLINGER: Are we talking --
18 MS . HUTTON : -- advice .
19 MR. SHILLINGER: -- Judi ' s House or Galleon Bay?
20 MS . HUTTON : Judi ' s House .
21 MR. SHILLINGER: Okay. Derek is going to get up
22 here in a second and talk to you about a strategy session
23 we would like to -- strategy we would like to employ with
24 Judi ' s House .
25 Briefly, Judi ' s House is a takings case involving a
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1 property that had a condition that was imposed on it when
2 it went through administrative relief . That they put a
3 conservation easement on one of the additional lots that
4 they weren ' t seeking to develop . And they sued on that
5 basis that that was an unconstitutional exaction and
6 Derek can explain the law on that, and has a
7 recommendation that we rescind that portion of the
8 administrative relief provision to moot out their case .
9 All right . I ' ll turn it over to Derek .
10 MR. HOWARD : Good afternoon, Commissioners . Bob
11 mentioned that the property at issue includes three
12 parcels on Sugarloaf Key. And in December of 2009,
13 Judi ' s House filed suit against the County. And it ' s a
14 two-count complaint .
15 The first count seeks declaratory relief and
16 therein, they argue that they have a right to develop the
17 subject property without regard to the County' s Rate of
18 Growth Ordinance .
19 And both Richard Shine and myself, Richard Shine
20 being the attorney for the Department Of Community
21 Affairs, believe that this is really nothing short of a
22 pretty frivolous claim. And if we -- in all likelihood
23 we ' ll be seeking attorney' s fees pursuant to statutory
24 provision that allows us to do so .
25 We ' ll provide notice to opposing counsel that we do
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1 believe this claim is frivolous . And they haven ' t had an
2 opportunity to withdraw that claim. If they don ' t and
3 they lose, then we would be entitled to seek costs and
4 fees . So we ' re not real concerned about the declaratory
5 relief count .
6 The count that I 'm more concerned about is the
7 takings count . What they allege is that when they came
8 to the Board Of County Commissioners seeking
9 administrative relief, after being in the Rate Of Growth
10 Ordinance queue for four years, without receiving
11 allocation, but they should have just been entitled to an
12 allocation for parcel seven . Instead, what this
13 commission did is, it did grant administrative relief in
14 the form of one allocation, but with conditions that they
15 file conservation easements for lots four and five .
16 Now, what happened with it after that, they never
17 came back to the board. And I believe Commissioner
18 Nugent, you said that, you know, if your clients don ' t
19 like this, come on back and we can renegotiate this
20 relief . They didn ' t come back. And so they went and
21 they filed suit . Now --
22 COMMISSIONER NUGENT : Directly, as a --
23 MR. HOWARD : No . This is an Andy Tobin lawsuit .
24 MAYOR CARRUTHERS : Remind me . When was it first
25 brought to the Board?
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1 MR. HOWARD : It went to the Board -- well, the Board
2 passed the resolution, I believe it was in January of
3 2009 . I think the public hearing was heard, maybe, in
4 December of 2008 . So it was a couple years ago .
5 And I am here before you today, seeking two things .
6 One is to recommend that the Board amend the resolution
7 that was adopted, that is to grant administrative relief
8 in the form of an allocation without conditions of the
9 conservation easements for four and five . And the second
10 is to obtain authorization to third party and the
11 Department of Community Affairs .
12 The declaratory relief count is based almost
13 exclusively on a settlement agreement that they have with
14 the Department Of Community Affairs to which the Count
P Y � Y
15 was not a party. And it ' s based on this settlement
16 agreement that they make a rather attenuated argument
17 that we ' re making, that they ' re exempt from ROGO .
18 I ' ve spoken with Richard Shine, they --
19 MAYOR CARRUTHERS : Based on what, would they base
20 that exemption from ROGO?
21 MR. HOWARD : Well, we ' re still kind of scratching
22 our heads at that one . We ' re not --
23 COMMISSIONER NUGENT : It ' s Tobin .
24 MR. HOWARD : We ' re not really sure what the argument
25 is .
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1 MR. SHILLINGER: Tobin world. Tobin ' s law.
2 MR. HOWARD: But we feel that, you know, the best
3 thing to do, even though I 'm pretty confident that we can
4 prevail on this count, is just to bring the state at the
5 table . It will make it easier for them to say what they
6 think, you know, the settlement agreement stands for .
7 And it would just be, as far as the evidentiary issues,
8 it would just be easier having them at the table .
9 I ' ve already spoken to Richard Shine . And they, you
10 know, will not oppose a third-party complaint . He agrees
11 that this would just be the easiest thing to do . And we
12 really are here because of that agreement that they
13 entered into with the plaintiff . So, I mean, we do have
14 a right to file that complaint .
15 So that would -- that is what I 'm here to seek
16 authorization to do . But I want to backup to the first
17 recommendation which is to amend the resolution . Now,
18 why would you do this? The short answer is that it would
19 limit the takings claim. But I ' ve worked very closely
20 with the staff of the Growth Management Division and they
21 also support amending the resolution for two reasons .
22 First, Judi ' s House did not accept the
23 administrative relief . So their application has remained
24 in the ROGO queue . They have been ascending . It ' s
25 expected that they, without administrative relief, may
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1 obtain an allocation, perhaps, as early as next quarter .
2 So they ' re going to get an allocation anyway. So
3 why not just go ahead and give it to them now, and moot
4 out the takings case . It would be better if the board
5 did that than, you know, allow them to ascend, during the
6 course, but then still have this resolution that, you
7 know, Mr . Tobin can go into court and say, well, you
8 know, they delayed the relief and the allocation .
9 But, secondly, the conservation concerns that this
10 board expressed, back in 2008, as to parcels four and
11 five, should really, theoretically, be addressed, you
12 know, if we just allow ROGO, and the tier system to, you
13 know, to take effect with respect to these parcels .
14 There are applications for allocations or building
15 permits . So they would still have to, of course, file
16 for parcels four and five, but they have not . So, you
17 know, if they do they' ll have to go through what they' ve
18 gone through, with respect to parcel seven .
19 They are tier one lots . So, you know, they may or
20 may not get an allocation if they do that . But we just
21 think that this is, probably, the safest way for the
22 County to go, given the unconstitutional exaction
23 standard.
24 There are really two parts of that test and I think
25 that, you know, clearly the first test is met . You know,
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1 what the board asked them to do is related to a
2 legitimate, public purpose of conservation . But it ' s
3 really, the second part of the test is whether it ' s
4 really proportionate . And that ' s a pretty subjective
5 standard. And I don ' t have a lot of case law that would
6 tell you where a court ' s going to go on that one . So,
7 you know, there is some exposure to liability, if we were
8 to proceed on the merits .
9 Now, I 'm not saying that I can ' t argue a lot of
10 other things, such as, you know, affirmative defenses of
11 ripeness . My opinion, the Board' s resolution granting
12 administrative relief in the form of an allocation, with
13 the conditions, is not a final decision that allows them
14 to file a takings claim because it ' s really not a
15 decision . They didn ' t have to accept it . I mean,
16 they' re, you know, still competing with ROGO .
17 COMMISSIONER MURPHY : And they didn ' t accept it .
18 MR. HOWARD : And they didn ' t accept it . And there
19 was an expression by this Board that it wasn ' t final .
20 You know, if you don ' t like it, come back . They didn ' t
21 do that .
22 So I think that I could defend, you know, everything
23 but the merits of that decision . But if a court were to
24 say, well, build one lot, but give up two, you know, we
25 run some risk there . And I would rather avoid that . And
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1 why go there if they ' re going to get an allocation
2 without the conditions anyway .
3 COMMISSIONER MURPHY : Sure .
4 MR. HOWARD : So that would --
5 MR. SHILLINGER: Derek, are these lots contiguous?
6 MR. HOWARD : I 'm sorry? They were --
7 COMMISSIONER MURPHY: Yes .
8 MR. HOWARD : Yes . They were contiguous . Lot six
9 was developed.
10 COMMISSIONER NUGENT : I take that back. They
11 weren ' t aggregated, at the time?
12 MR. HOWARD : No .
13 COMMISSIONER NUGENT : Are they aggregated now?
14 MR. HOWARD : No .
15 COMMISSIONER MURPHY : So they would have to go out
16 for permits --
17 MR. HOWARD : Yes .
18 COMMISSIONER MURPHY: -- if they chose to, on those
19 lots?
20 COMMISSIONER WIGINGTON : How does that work in Tobin
21 world?
22 MAYOR CARRUTHERS : Was that, I told you so, in Tobin
23 world?
24 MR. HOWARD : In Tobin world they don ' t believe in
25 exaction .
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1 COMMISSIONER MURPHY : But who thinks they don ' t have
2 to belong in ROGO?
3 MR. HOWARD : Well --
4 COMMISSIONER MURPHY : And why?
5 MR. HOWARD : -- interestingly enough, I had -- I
6 deposed his client, Mr . Caprotti, who is the sole
7 shareholder of Judi ' s House, a couple weeks ago . And he
8 didn ' t think that he was exempt from ROGO . I mean, this
9 is clearly an argument that Tobin himself is
10 constructing .
11 MAYOR CARRUTHERS : What does Judi ' s House do? What
12 does Judi ' s House mean?
13 MR. HOWARD : I -- it ' s -- I 'm not sure of the origin
14 of the name, but 7 they ' re just a land development --
Y P
15 MAYOR CARRUTHERS : Oh, okay.
16 MR. HOWARD : -- corporation . That Mr . Caprotti --
17 he lives in Italy and --
18 MAYOR CARRUTHERS : Oh, now I get it .
19 MR. HOWARD : He ' s taken a renewed interest in the
20 Florida Keys, so . We didn ' t hear from him for awhile,
21 but we ' ll be hearing, I guess, a lot more from him in the
22 coming years .
23 COMMISSIONER MURPHY : So --
24 COMMISSIONER NUGENT : I concur with what we ' ve
25 talked about .
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1 MR. SHILLINGER: What we can do is --
2 COMMISSIONER MURPHY: I do too .
3 MAYOR CARRUTHERS : Yes .
4 COMMISSIONER MURPHY: And I 'm wondering, I just --
5 and I really don ' t care what Andy Tobin thinks . But, I
6 wonder why he thinks the guy doesn ' t have to sit for
7 ROGO .
8 COMMISSIONER NUGENT : You ' ve got better things to
9 do --
10 COMMISSIONER MURPHY: He sat --
11 COMMISSIONER NUGENT : -- than try to figure that
12 out .
13 COMMISSIONER MURPHY: He sat in ROGO.
14 MR. HOWARD : Yes .
15 COMMISSIONER MURPHY : Until he got to the
16 administrative relief point .
17 MR. HOWARD : Right .
18 COMMISSIONER MURPHY : And then we gave him
19 administrative relief with restrictions .
20 MR. HOWARD : Right .
21 COMMISSIONER MURPHY: So he chose not to take those .
22 He stayed in ROGO . So you want to get him out of ROGO a
23 little bit early?
24 MR. HOWARD : It will be a little earlier, yes .
25 MAYOR CARRUTHERS : So fine .
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1 COMMISSIONER NUGENT : Next item.
2 MR. SHILLINGER: So what we ' ll do is, we ' ll bring
3 you back a resolution next month to formally rescind the
4 conditions on that .
5 COMMISSIONER MURPHY: Okay.
6 MR. HOWARD : And again, this will be moot, you know,
7 the takings count . So we ' ll have to, you know, proceed
8 forth on the declaratory judgment count .
9 Now, this count, in some types of --
10 COMMISSIONER MURPHY: Hold on . What is that?
11 MR. HOWARD : On the declaratory relief count?
12 COMMISSIONER MURPHY: Yes .
13 MR. HOWARD : This is the count where Andy is, you
14 know, hoping to prevail with his argument that he ' s
P 9 P g e s
15 exempt from ROGO .
16 COMMISSIONER MURPHY: Well, the point is, if we ' re
17 going to go ahead and do this for him, what --
18 MR. HOWARD: Well, that would only take care of the
19 unconstitutional exactions claim, which only relates to
20 parcels four and five, that they do not have applications
21 for .
22 COMMISSIONER MURPHY : Okay .
23 MR. HOWARD : But what they are saying is that, you
24 know, even if the board were to do that, that they don ' t
25 need applications for four and five because ROGO does not
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1 apply to them.
2 COMMISSIONER MURPHY: To four and five?
3 MR. HOWARD : To four and five .
4 MAYOR CARRUTHERS : Are four and five different --
5 COMMISSIONER MURPHY: Knock yourself out, and argue
6 that one .
7 MAYOR CARRUTHERS : -- than three, in some way?
8 MR. HOWARD : Well, they did develop -- some of these
9 lots were aggregated. And there were, following the
10 settlement agreement with the Department Of Community
11 Affairs, the Department said, you have a maximum density
12 of four units on these four lots . And so there are, you
13 know, there are four lots, one ' s developed. They have
14 three more that they can potentially develop . But under
15 the settlement agreement they only have --
16 MAYOR CARRUTHERS : They only have two .
17 MR. HOWARD : -- they have density for two more . And
18 in order to get the fourth one, they would have to
19 aggregate or transfer in transferable development rights .
20 They have done none of that . And it ' s apparent to me,
21 you know, based on the deposition of Mr . Caprotti, that
22 they just haven ' t really been thinking about much in the
23 last 10 years, so .
24 But they' re gearing up again . So we want to, you
25 know, take this claim from them and then get the other
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1 thing resolved. And I think the court will agree that
2 they, in fact, have to play by the rules that everyone
3 else has to play by.
4 MAYOR CARRUTHERS : Yes .
5 COMMISSIONER WIGINGTON : Can we not change the
6 resolution out of the goodness of our heart, with the
7 condition that it takes care of any other issues that
8 could arise and they can ' t come back to us for any other
9 thing and they drop everything --
10 MR. HOWARD : Well --
11 MAYOR CARRUTHERS : -- from now on, forever and ever?
12 MR. HOWARD : Seeing as this is a resolution that is
13 an administrative relief resolution, conceivably, the
14 commission could condition the acceptance of the relief
15 on them waiving their declaratory relief count . But I
16 don ' t see why they would do that, given the fact that
17 they, you know, can get the allocation without the relief
18 and, you know, maybe next quarter or the quater
19 thereafter . So I wouldn ' t recommend that the Board do
20 that .
21 COMMISSIONER WIGINGTON : Well, and that ' s pretty
22 much a slam dunk anyway. I 'm just talking about
23 something on the other lots .
24 MR. HOWARD : Again, I don ' t think that they would
25 have to . They would have to accept the relief in order
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1 for that -- for them to actually waive the claim.
2 COMMISSIONER WIGINGTON : Oh .
3 MR. HOWARD : And I don ' t think if it were
4 conditioned that way, I don ' t think that they would
5 accept the relief .
6 COMMISSIONER WIGINGTON : Okay.
7 MR. SHILLINGER: What we ' re trying to do is moot out
8 their claim --
9 MAYOR CARRUTHERS : Sure .
10 MR. SHILLINGER: -- by removing that restriction .
11 So, basically, forcing it down their throat .
12 COMMISSIONER WIGINGTON : Okay. Understood.
13 MAYOR CARRUTHERS : So you don ' t need a motion, you
14 have our direction?
15 MS . HUTTON : No . You couldn ' t make a motion anyway,
16 at this point, it would have to be a motion in open
17 session .
18 MAYOR CARRUTHERS : Right .
19 MS . HUTTON : So I think we ' re ready to close the
20 closed session on Judi ' s House, reopen the open session,
21 so that I can ask for --
22 MAYOR CARRUTHERS : Okay. Judi ' s House closed
23 session is closed. I need to reopen the open session;
24 right? Okay. The opened session is reopened. The open
25 session is closed.
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1 MS . HUTTON: No. Wait . Wait . Wait . We have to
2 wait for --
3 MAYOR CARRUTHERS : You have to read your stuff
4 again.
5 MS . HUTTON: I 'm sorry.
6 MR. HOWARD: Bob is grabbing her.
7 MS . HUTTON: Yes . Bob is grabbing her. Sorry.
8 (Attorney-client closed session was concluded at 1 : 50 p.m. )
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1 CERTIFICATE
2 STATE OF FLORIDA,
3 COUNTY OF MONROE
4 I, Patricia A. Zischka, certify that I was authorized to
5 and did stenographically report the foregoing proceedings and
6 the transcript is a true record.
7 Dated this 12th day of August, 2011 .
8
mM�
9 '` ' ..�
Patricia A. Zischka
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