10/29/2003 Executive Closed Session
10/15103
2003/272
Monroe County Tax Collector, Danise D. Henriquez presented the Board with the Tax
Collector's excess fees check. Ms. Henriquez also informed the Board that as of October 1,
2003, her office had taken over the Key Largo Office for issuance drivers licenses. The Tax
Collector now serves the Key West, Marathon and Key Largo offices for driver's licenses.
COMMISSIONERS' ITEMS
Mayor Spehar discussed her item concerning direction to staff to start negotiations with
the City of Key West to create a Homeless Safe Zone under the west end of the Monroe County
Detention Center. Facility hours are proposed to be from early evening to early morning. The
following individuals addressed the Board: Sloan Bashinsky, Joanne Alexander, representing
Sunset Marina; Gwen Rodriguez, Peter Batty, Assistant City Manager John Jones; and Monroe
County Jail Captain Tommy Taylor. Mr. Roberts also addressed the Board. After discussion,
motion was made by Commissioner McCoy and seconded by Commissioner Rice appointing
Commissioner Rice as the Board's point person on this matter. Motion carried unanimously.
Mayor Spehar requested the status of bids on the County's group health insurance
program. Mr. Roberts addressed the Board.
COUNTY ATTORNEY
Mr. Collins addressed the Board. Motion was made by Commissioner Rice and seconded
by Commissioner Neugent to reopen the agenda. Motion carried unanimously. Growth
Management Litigation Counsel, James T. Hendrick addressed the Board and requested that the
Board schedule a closed attorney-client session in accordance with F. S. Section 286-011(8) for
the purpose of obtaining Board direction on the following: 1.) Negotiating litigation strategy to
discuss Galleon Bay v. Monroe County; and, 2.) Mediation guidance on Industrial
Communications & Electronics v. Monroe County. Present at the session will be the Board,
County Administrator, County Attorney, Mr. Hendrick, Ms. Cabanas, Land Authority Director
Mark Rosch, Land Authority Counsel Larry Erskine, and a consultant for Industrial
Communications & Electronics. Motion was made by Commissioner Nelson and seconded by
Commissioner Neugent that the above matter be scheduled. Motion carried unanimously.
Motion was made by Commissioner Rice and seconded by Commissioner Neugent to hold the
closed attorney-client session on Wednesday, October 29,2003 at 10:00 AM at the Harvey
Government Center in Key West. Motion carried unanimously.
PUBLIC HEARINGS
A Public Hearing was held concerning amending Section 9.5-309 and Section 9.5-367,
Monroe County Code, clarifying how the height of fences is measured and allowing fences in
residential areas to exceed 3 feet within the clear sight triangle if they are set back a minimum of
10 feet from the edge of the pavement; Providing for Severability; Providing for the repeal of all
Ordinances inconsistent herewith; Providing for incorporation into the Monroe County Code of
Ordinances; and Providing an effective date. There was no public input. Mr. McGarry addressed
Page 1 of 1
Pam Hancock
From:
To:
Cc:
"S h iIIinger -Bob" <Sh ill i nger -Bob@MonroeCounty-FL.Gov>
"Pam Hancock" <phancock@monroe-clerk.com>
"Belle Desantis" <idesantis@monroe-clerk.com>; "Rainer-Debra" <Rainer-
Debra@MonroeCounty-FL.Gov>
Wednesday, May 28, 2008 3:44 PM
RE: Ciosed Session
Sent:
Subject:
Both matters are resolved. The transcripts should be placed with the public records.
Bob Shillinger
Chief Assistant County Attorney
Monroe County Attorney's Office
1111 12th Street, Suite 408
Key West, FL 33040
(305) 292-3470
(305) 292-3516 (facsimile)
Please note that F'lorida has a broad public records law and that any communication with the County could be
considered a public record. If you do not wish for your email address to become a public record, use the
telephone or some other method of conveying your message.
From: Pam Hancock [mailto:phancock@monroe-c1erk.com]
Sent: Wednesday, May 28, 2008 3:28 PM
To: Shillinger-Bob
Cc: Belle Desantis
Subject: Closed Session
Hi Bob,
We have two Closed Session transcripts that we have not scanned as we have not received any documentation
from you stating that the matters have been settled.
They are: Industrial Communications & Electronics v. Monroe County; and Monroe County v. Post, Buckley,
Schuh & Jernigan (2 copies). Do you want our office to maintain these or send them back to you until they are
settled?
Thanks.
5/29/2008
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ORIGINAL
1
COUNTY COMMISSION
FOR MONROE COUNTY, FLORIDA
CLOSED EXECUTIVE SESSION
REGARDING THE MATTER OF
INDUSTRIAL COMMUNICATIONS & ELECTRONICS V. MONROE COUNTY
PROCEEDINGS
As reported by Amy Landry, Registered Professional
Reporter and Notary Public, at Harvey Government Center,
1200 Truman Avenue, Key West, Florida; October 29, 2003,
commencing at 10:08 a.m.
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1 A P PEA RAN C E S:
2 MAYOR DIXIE SPEHAR
COMMISSIONER CHARLES McCOY
3 COMMISSIONER GEORGE NEUGENT
COMMISSIONER DAVID RICE
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COUNTY ADMINISTRATOR JAMES ROBERTS
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CHIEF ASSISTANT COUNTY ATTORNEY ROBERT WOLFE, ESQUIRE
6 502 Whitehead Street
Key West, Florida 33040
7 On Behalf of Monroe County
8 JAMES T. HENDRICK, ESQUIRE
KAREN K. CABANAS, ESQUIRE
9 Morgan & Hendrick
317 Whitehead Street
10 Key West, Florida 33040
On Behalf of the Monroe County.
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1 (WHEREUPON, the following proceedings were had:)
2 MR. HENDRICK: The next item, with the same
3 individuals present, that is: County Administrator James
4 Roberts; Chief Assistant County Attorney Rob Wolfe; Growth
5 Management Counsel Karen Cabanas; Jim Hendrick, myself,
6 Litigation Counsel; and all members of the Board except
7 Commissioner Murray Nelson, who is absent.
8 It will be ICE v. Monroe County, Industrial
9 Communications. And Ms. Cabanas will give you that
10 presentation.
11 MS. CABANAS: Brief background. The ICE case is
12 involving the formerly proposed 970-foot wireless tower on
13 Cudjoe Key that I'm sure you all remember. When that
14 application was pending, you passed the moratorium. We
15 extended the moratorium. They filed in state court. We won
16 in state court. And the validity of the moratorium was
17 upheld.
18 They moved on to federal court and filed
19 essentially the same claims. They did not for some reason
20 attack the new wireless tower regulations that were adopted.
21 They were still attacking only the moratorium.
22 In federal court, we won at the trial level on our
23 motion to dismiss, basically on procedural issues in that
24 they failed to reserve their federal claims in state court
25 and essentially were bringing the same claims.
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1 The status of the case right now is that it is on
2 appeal in the 11th circuit court of appeals. The
3 plaintiff's brief has been filed. The County's answer brief
4 has been virtually finished. There is court-ordered
5 mediation when you are on appeal in the 11th circuit,
6 mandatory mediation that we do over the telephone. Each
7 side submits a statement to the mediator. Mine of course
8 was, "We are very confident in our position, and we saw no
9 reason or incentives to settle the case."
10 Their position through mediation, which of course
11 everything that's disclosed in mediation is confidential.
12 Their position was -- which was news to both Tim McGarry and
13 I, who were participating in the mediation, was that the
14 Coast Guard -- according to the plaintiffs, that the Coast
15 Guard is planning to build a 1400-foot tower somewhere in
16 the middle Keys. And that if the Coast Guard builds their
17 tower, there is not going to be any co-location on it. It's
18 just going to be their tower, and that's it. It's part of a
19 national security program.
20 And according to them, what they need the tower
21 for is called the Rescue 21 program, where basically they
22 have the tower in the upper and lower Keys, and they need to
23 have one in the middle. When somebody is lost at sea and
24 hits their VHF radio, they can pick up much better where
25 that click is coming from with the triangulation.
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1 In mediation, they said they were going to get a
2 letter from the Coast Guard basically verifying to us that
3 this in fact is taking place. To date, I have received no
4 such letter.
5 Growth management did have staff -- you know,
6 without disclosing all this information I got through
7 mediation, we had staff call the Coast Guard and ask about,
8 you know, "What are your plans as to wireless towers in the
9 county?" Their response was that they were planning within
10 a two-year period a 900-foot tower somewhere in the lower
11 Keys, I believe on Sugarloaf.
12 Plaintiff's position is, of course, that, "Our
13 970-foot tower is better than the 1400-foot one because if
14 we do ours, it's private. The sheriff can put his
15 information on it. We can do co-location. It's going to be
16 a better deal."
17 Now, I was also told by the plaintiffs that they
18 had spoken to each commissioner and that they were confident
19 that they had the votes for this settlement. Now, with of
20 course all the opposition that went on when this tower was
21 initially proposed, I decided to bring this to us in
22 executive session, since we were already going to be here,
23 rather than dump a settlement in front of you and have a
24 room full of people, and it being a settlement you didn't
25 want to see.
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Basically the direction I'm asking from you is, do
you want to see a settlement proposal on an agenda for a
vote?
COMMISSIONER McCOY: Can I ask you the time frame
when they discussed this with the commissioners?
MS. CABANAS: I do not know what the alleged time
frame was. I was simply told by their counsel that he had
basically gone around and lobbied and was confident that the
commission would approve the settlement.
COMMISSIONER McCOY: I remember no conversations
with anyone.
COMMISSIONER NEUGENT:
I have had no
conversations.
COMMISSIONER RICE: Who is the counsel?
MS. CABANAS: David Horan is their counsel.
COMMISSIONER RICE: I was afraid of that.
MS. CABANAS: I've had this happen before with No
Name Key, where I was told, "I have the votes for it." And
it was something you would rather not have had a room full
of people for.
COMMISSIONER NEUGENT:
I would like to point out,
I don't know if the other commissioners were on the
commission at the time that this was an issue that was
discussed at this County Commission level. But I assure you
that Ms. Cabanas is correct that this place will be
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1 absolutely full of people in opposition to that tower ever
2 being built.
3 MAYOR SPEHAR: Right. The meeting in Sugarloaf,
4 do you remember that?
5 COMMISSIONER NEUGENT: Geez, I remember them all.
6 MAYOR SPEHAR: Karen, you said that you saw no
7 reason to settle. What is the minimum that we could offer?
8 MS. CABANAS: Well, they want to build their
9 tower. I don't think they have any interest in a monetary
10 settlement. I would not advise you to propose any monetary
11 settlement. I'm very confident in our legal position. The
12 only reason I brought this issue to you was that I saw some
13 merit to their argument that, you know, "If there is going
14 to be a 1400-foot tower, ours is better. Other things can
15 happen on it." I just wanted to make you aware that that
16 was a proposal that was brought to me in mediation.
17 COMMISSIONER McCOY: If I understand you
18 correctly, you're talking now, they are both about 900-foot
19 towers?
20 MS. CABANAS: Right. The information we got
21 directly from the Coast Guard is they are considering a 900.
22 COMMISSIONER McCOY: Is there something that can
23 be worked out between both of them being used on the tower;
24 that the Coast Guard would accept this and just have a
25 repeater or whatever they want to put on that thing?
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MS. CABANAS:
I spoke to them about that. Their
position was, "We can only put what we need on it, if it's
our tower." Because if it's the Coast Guard's tower and
only theirs, that's all that's going to be on it.
COMMISSIONER McCOY: The question was whether if
the private company built the tower -- the sheriff has told
me repeatedly that he needs more towers. He needs some
communications.
MS. CABANAS: Right.
COMMISSIONER McCOY: If they did it and said they
would allow then the Coast Guard to put their equipment on
there, also, would this satisfy the problem? Since there is
only going to be one tower, and it belongs to the Coast
Guard solely, or is it one that the Coast Guard could use?
I think we probably should have some kind of information
like that. And everybody else could be using one tower.
There is no limit to how many antennas you're going to put
on that thing.
MS. CABANAS: Right. That was basically their
proposal is, "Let us privately build the tower. Let the
Coast Guard put their stuff on our tower."
COMMISSIONER McCOY: Has that been pursued?
MS. CABANAS: Right. That's basically the
proposal they want to bring in front of you.
COMMISSIONER RICE: We don't know what the Coast
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Guard's answer to that would be; correct?
MS. CABANAS: Correct.
COMMISSIONER RICE: I guess the issue is, Do we
have one tower or two towers? And mutual use certainly
seems to make sense. It seems like we need that information
from the Coast Guard.
MS. CABANAS: Yeah. They keep promising me a
letter from them, and I still have gotten nothing.
COMMISSIONER NEUGENT: There seems to be a
tremendous proliferation of tower building going on
throughout this county. Cell towers, et cetera. Is there
any communication between the people that are building these
towers? Because I find them extremely unsightly, and they
seem to be going up everywhere.
Is there anything that we can do legally to put
all these people to the table and make them comprehensive in
their approach to getting the necessary electronic
communications that's needed down here?
MS. CABANAS:
I don't know if they would be
feasible or not. The Federal Telecommunications Act is
pretty specific about, you know, not being able to
discriminate against certain technologies or certain
providers. We would have to look at that act to see if
that's something that we could pass an ordinance as to.
COMMISSIONER NEUGENT: Well, I think there is
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1 probably -- because I see these battles going on in other
2 states. And there's got to be some case study or law that
3 we could use to maybe do this. Because if not, I can assure
4 you, this is going to be one hot political issue.
5 But I also agree, if I interpreted Commissioner
6 Rice's direction, that we would be better off if there were
7 one tower instead of two towers. And--
8 MS. CABANAS: Well, there is only going to be one
9 tower, regardless. I mean, under our ordinance, nothing
10 over 199 feet can go up at all.
11 MAYOR SPEHAR: But if we allow a private company
12 to do one at 970, then doesn't that open the door for other
13 people? Even though we're saying that it would be sharing
14 with the military, if we do that, then we have opened the
15 door for other people to take us to court, because we did
16 allow ICE to do it.
17 MS. CABANAS: I don't believe it would set any
18 sort of negative precedent. They were in a very unique
19 situation in that they were the only applicant who actually
20 had an application pending at the time we passed the
21 moratorium and adopted the new regulations. And it would be
22 approved pursuant to a settlement. So there would be no
23 precedence problem with allowing that to happen.
24 COMMISSIONER RICE: Karen, let me back up just a
25 second. I heard you say that there would not be a tower of
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that height because our ordinance prohibits it. Does that
mean that if the military wanted to put up a tower, they
have to adhere to our ordinance?
MS. CABANAS: They do not.
COMMISSIONER RICE: That's what I thought.
MS. CABANAS: The Coast Guard can basically do
what they want to do.
COMMISSIONER RICE:
So we will have a tower taller
than that, if they decide to do it.
MS. CABANAS: You could, yes.
COMMISSIONER RICE: And I believe there is some
legislation that either was or is being considered right now
to remove all decision-making regarding towers from local
jurisdiction.
MS. CABANAS: Pending federal legislation?
COMMISSIONER RICE: Yes.
MS. CABANAS: That would not surprise me. They
have a very good lobbying system, similar to the billboard
companies.
COMMISSIONER RICE: I for one would really
appreciate pursuing further the idea that Commissioner McCoy
brought up, which is private tower joint use. Would the
Coast Guard be able to and willing to participate in the use
of that tower, rather than two towers? Then I think we
would be in a better position to think about this.
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MAYOR SPEHAR: But that does not prevent the Coast
Guard or any other military group down here to turn around
and build another tower.
COMMISSIONER RICE:
that what you said?
MAYOR SPEHAR: No, it doesn't prevent them, ICE.
COMMISSIONER RICE: Oh, absolutely. My
understanding is if they want to make us look like a
porcupine, they are able to do that. And it Sounds like
with their plans, they are going to put up a taller tower.
So we are going to have at least one more, from what I
It doesn't permit them to; is
understand.
MS. CABANAS: How would you feel about if I were
to get some more specific information from the Coast Guard
on that issue, if they would be willing to use the private
one?
COMMISSIONER McCOY:
I think that's a minimum of
what we're looking for right now. See all the ramifications
of this, come back with a package, and put a lot of this
load on the attorney for the private company to do a lot of
this research. He has good ways of getting into the
military mind.
MS. CABANAS: There is no problem with getting the
case delayed through the mediator. He has full authority to
keep postponing our briefs while we negotiate.
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1 If in fact the Coast Guard is willing to use ICE's
2 tower, would you want to hold another executive session, or
3 would you want me to go ahead and bring that settlement
4 package to you?
5 COMMISSIONER McCOY: I think at that time we
6 probably, my opinion, could just go right to the conclusion
7 of it and satisfy it, if everybody was in agreement there.
8 With the full understanding that there is going to be -- we
9 would have to have some kind of assurance that there was
10 going to be the need for this tower. And whether it
11 included Coast Guard, local defense, or whatever they wanted
12 to attach to it, it would have to be some kind of provision
13 where the military would have full access to use this thing.
14 And the County would have access to it. The sheriff very
15 much wants an antenna there.
16 MAYOR SPEHAR: When you bring this back, as the
17 package, the public is going to rebel tremendously. You
18 know they
19 COMMISSIONER RICE: Well, here is how I would like
20 it presented at that time, if indeed this is the case. It
21 is a fact we are going to have a tower. Do we want one or
22 do we want two? Or can we minimize and have joint use?
23 There is -- if there is no option that says -- if we are
24 going to have a tower, then I would prefer to have one, and
25 I would prefer the public saw it that way from the very
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1 beginning, as the choices between one and two.
2 MS. CABANAS: No, either way you are only going to
3 have one. Because either you're going to allow the
4 settlement and the Coast Guard is going to use ICE's tower,
5 and/or the Coast Guard is going to do their tower. The only
6 way ICE is going to get it is through the settlement or if
7 they win their case.
8 MAYOR SPEHAR: And ICE can't have shorter towers
9 and arch from one to the next to the next?
10 MS. CABANAS: Apparently not, because of the
11 technology they are using, which is what the count under the
12 Telecommunications Act is. We are discriminating against
13 their technology. Apparently they need the high tower
14 because the signal has to go directly to it, as opposed to
15 jumping from tower to tower.
16 COMMISSIONER RICE: I don't know of anything that
17 would prevent the military from coming in here two years
18 from now.
19 MS. CABANAS: Correct. The military can put up as
20 many as they want.
21 COMMISSIONER NEUGENT: If ICE doesn't get one,
22 period, end of story. The Coast Guard gets that. That's
23 one tower.
24 MAYOR SPEHAR: Or 20.
25 COMMISSIONER RICE: How can we deny ICE because
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the military is going to put up a tower? That doesn't seem
sufficient to pivot our entire decision-making process on
that. And to say there is only going to be one tower, we
could permit joint use with ICE, and six months later the
military could put up a tower wherever they like. That's
more than one tower.
MS. CABANAS: Correct, yes.
COMMISSIONER McCOY: The visual obscenity is going
to be there, whoever owns the tower. But it will have to be
controlled and designed in a specific way.
At this time, we probably then should go to the
state and to the federal government and say, "This is what
we intend to do.
Is this going to satisfy the reasonable
needs of the military in the foreseeable future?"
Homeland defense is another one of these things.
It happens to be run right now in this area by a Coast Guard
admiral. So we can talk about these things of homeland
defense and everything, and the future needs, and make sure
that if we are going to put an obscene thing on the horizon
that it satisfies all the future needs of the military and
any other agency that would have jurisdiction to put one up,
regardless of whether we approved or disapproved.
COMMISSIONER NEUGENT: Well, I would just remind
you that they were going to do missile testing at one point
in time in the Keys, and that didn't happen. So it's not a
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1 "fait du complait" if the military wants to do it. It
2 depends on what kind of public outroar takes place.
3 The other thing that I would point out, ICE wants
4 to build a 970-foot tower in a tower -- what do you call it,
5 where there is a bunch of towers already. If the Coast
6 Guard starts talking about putting one on Sugarloaf, I'm
7 sure the Sugarloaf residents are going to have a serious
8 problem with that.
9 And I would think that possibly we might get our
10 lobbyist in Washington looking at what the Coast Guard is
11 planning. Certainly if it's a homeland defense scenario,
12 and they can prove need, then certainly we will probably
13 lose that battle. But outside of that, I would think that
14 the public will have some say-so in it.
15 MS. CABANAS: The Audubon Society has been
16 following the case throughout the course of it. I think
17 with as many federal bird sanctuaries as we have here
18 that was the issue, was the birds flying into towers. Of
19 course, there is the potential for some lobbying there. You
20 know, for instance, some exemption in the Telecommunications
21 Act for, you know, areas that are federal sanctuaries. You
22 have to link that federal jurisdiction together.
23 COMMISSIONER NEUGENT: And there are enough
24 environmental groups with loud voices in Washington that
25 will join in on that. I'm sure the Sierra Club, the Audubon
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I Society. We saw them all at those meetings in conjunction
2 with residential
3 MS. CABANAS: Yeah, it would take some sort of
4 federal legislation to make sure we are not going to have a
5 series of these tall towers.
6 MAYOR SPEHAR: But they will come back again when
7 you present this at a meeting. They are going to come
8 against us and our decision as well. They strongly opposed
9 it.
10 MS. CABANAS: I can get the more specific
11 information from the Coast Guard to verify a lot of these
12 things and get with you individually. I guess I could poll
13 you individually to see if you want something put on an
14 agenda, rather than just dump it on you.
15 MAYOR SPEHAR: Is that okay with you?
16 COMMISSIONER McCOY: Do you have all the
17 information you need now, Ms. Cabanas?
18 MS. CABANAS: I do.
19 COMMISSIONER McCOY: Then can we conclude this
20 thing?
21 MAYOR SPEHAR: This closed session is now
22 terminated, and we -- well, I will entertain a motion for
23 adjournment.
24 COMMISSIONER RICE: I believe the County
25 Administrator has a comment or question.
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1 MR. ROBERTS: I understand my direction is to
2 work with our Washington representative and see if he can
3 determine what military proposals for towers might be
4 existing in the Keys.
5 MAYOR SPEHAR: (The mayor nodded.)
6 MR. ROBERTS: I will take care of that.
7 COMMISSIONER RICE: Should we broaden that to say,
8 pending federal legislation?
9 MR. ROBERTS: Yes. And I do recall about a year
10 ago a case that was in Washington to remove tower location
11 from local growth management controls.
12 COMMISSIONER RICE: Right. I believe I have a
13 file on that.
14 MAYOR SPEHAR: All right. Shall we have a motion
15 for adjournment?
16 COMMISSIONER RICE: So moved.
17 MAYOR SPEHAR: We are adjourned.
18 (The proceedings concluded at 11:05 a.m.)
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C E R T I F I CAT E
STATE OF FLORIDA
COUNTY OF MONROE
I, Amy Landry, Registered Professional Reporter,
do HEREBY CERTIFY that I was authorized to and did
stenographically report the foregoing proceedings and that
the transcript is a true record.
Dated this fB'f6 day of
1)-ert"1MJ.,M~ ,2003.
~ ~L
Amy L~, RPR If
Court Reporting Servlces
P.O. Box 6484
Key West FL 33041-6484
AMY LANDRY REPORTING
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