Item K1* 1:30 P.M. CLOSED SESSION *
3MV'JILT
Meeting Date: 5/20/09 ..... KL Division: County Attorney
Bulk Item: Yes No xx Staff Contact Person: Bob Shillin eg r x3474
AGENDA ITEM WORDING:
A closed executive session of the Board of County Commissioners in the matter of Roy's Trailer Park
Inc v. Monroe County, CA K 07-1505 during its regular meeting scheduled for March 18, 2009,
ITEM BACKGROUND:
Legal staff desires direction from the Board on the case. 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 Cynthia Hall, Assistant County Attorney Lisa Granger and
a certified court reporter.
PREVIOUS RELEVANT BOCC ACTION:
4/15/09 BOCC approved Closed Session for 5/20/09 in Key Largo at 1:30 p.m.
CONTRACT/AGREEMENT CHANGES: N/A
STAFF RECOMMENDATIONS: Approval.
TOTAL COST: @a,$200.00 INDIRECT COST: BUDGETED: Yes xx No
COST TO COUNTY: @$200.00 SOURCE OF FUNDS:
REVENUE PRODUCING: Yes _ No xx AMOUNT PER MONTH Year _
APPROVED BY: County Atty xx OMB/Purchasing n/a Risk Management n/a
DOCUMENTATION: Included
DISPOSITION:
Revised 2/05
Not Required X
AGENDA ITEM ff
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: Roy's Trailer Park v. Monroe Co., Case No.: 07-CA-1505-K
Dear Mr.Madok:
Please find attached scans of transcripts of two attorney-client closed sessions held before the Monroe County
Board of County Commissioners on March 18, 2009, and on May 20, 2009, 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,
,,PP Digitally signed by Cynthia L.Ball
yyq DM cn-Cynthia L.I I all,o-Monroe
County UOCC,ou—il-hall-
cynthia[monroecounry-tl.gov,c-US
Date:2024.01.161-24 0500'
Cynthia L. Hall
Senior Assistant Monroe County Attorney
Attachment: Scans of Closed Session Transcripts dated 03/18/2009 and 05/20/2009
1
1 MEETING OF THE
2 MONROE COUNTY BOARD OF COUNTY COMMISSIONERS
3 ATTORNEY-CLIENT CLOSED EXECUTIVE SESSION
4 RE : ROY' S TRAILER PARK, INC. , VS . MONROE COUNTY CA-K 07-1505
5 MURRAY E . NELSON GOVERNMENT CENTER
6 102050 OVERSEAS HIGHWAY
7 KEY LARGO, FLORIDA 33037
8 May 20, 2009
9 2 : 36 P.M. - 2 : 48 P .M.
11 Commissioners Present :
12 COMMISSIONER HEATHER CARRUTHERS
13 MAYOR PRO TEM SYLVIA J. MURPHY
14 MAYOR GEORGE NUGENT
15 COMMISSIONER MARIO DIGENNARO
16 COMMISSIONER KIM WINGINGTON
17 COUNTY ATTORNEY SUZANNE HUTTON, ESQ.
18 CHIEF ASSISTANT COUNTY ATTORNEY BOB SHILLINGER, ESQ.
19 COUNTY ADMINISTRATOR ROMAN GASTESI
20
21
22 ALL KEYS REPORTING
23 Olde Towne Centre 600 Whitehead Street
9701 Overseas Highway Suite 206, 2nd Floor
24 Marathon, Florida Key West, Florida
305-289-1201 305-294-2601
25
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1 THE MAYOR: Call the closed session to order.
2 MS . HUTTON: For the record, this meeting is being
3 held upon the request of County Attorney Suzanne Hutton,
4 who announced at the prior public meeting held April
5 15th, 2009, that I needed advice concerning the pending
6 matter, Roy' s Trailer Park, Inc. , versus Monroe County,
7 CA K 07 1505 . At that meeting the board approved holding
8 today' s closed session. And public notice was given at
9 the April 15th, 2009, BOCC special meeting and through
10 publication of the agenda for the May 20th, 2009, BOCC
11 regular meeting.
12 For the record, and the benefit of the court
13 reporter, each of us will state our name and positions
14 starting with the commission. Commissioner Carruthers .
15 COMMISSIONER CARRUTHERS : Here . Yes .
16 THE MAYOR: Identify yourself.
17 COMMISSIONER CARRUTHERS : Oh, Heather Carruthers .
18 District three . Board of County Commissioners . What
19 else?
20 COMMISSIONER DIGENNARO: Monroe County Commissioner
21 Mario DiGennaro, district four .
22 THE MAYOR: County Commissioner George Nugent,
23 district two.
24 COMMISSIONER MURPHY: Commissioner Sylvia Murphy,
25 district five .
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1 COMMISSIONER WINGINGTON: Commissioner Kim
2 Wingington, district one .
3 MS . HUTTON: Suzanne Hutton, County Attorney.
4 MR. GASTESI : Roman Gastesi, County Administrator.
5 MR. SHILLINGER: Bill Shillinger, Chief Assistant
6 County Attorney.
7 MS . HUTTON: Just as a reminder, we will only be
8 discussing settlement negotiations and strategy relating
9 to litigation expenditures . You cannot take any decisive
10 action at this meeting. We can only provide information
11 and you can provide direction to attorneys . Any
12 decisions the board makes concerning this case must be
M 13 done in a meeting open to the public. And I turn this
14 over to Bob.
15 COMMISSIONER MURPHY: And our mikes are dead;
16 correct?
17 MR. SHILLINGER: Yes . I instructed Miss Cassel, if
18 she can hear us out in the hallway, to come thumping back
19 in and tell us . All right . We ' re here on Roy' s Trailer
20 Park case . We started this discussion a couple of months
21 ago, in Marathon. We decided to continue it because
22 Commissioner Wigington had some information she wanted to
23 share with the staff and I . We met. We resolved that
24 issue, in our minds . This is the trailer park on Stock
25 Island, that has sued us trying to amortize the hookup
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1 fees that they used to hook into Key West Resort
2 Utilities ' sewer system.
3 I start off every closed session reminding you we ' re
4 in an attorney/client privilege situation. So what we
5 say in here is privileged from disclosure until the end
6 of the litigation. Four quarters, tearing everything --
7 typing everything down. So first of all saying, not to
8 say anything of the matter . But the full coordinated
9 public records will be opened up at the end of the
10 litigation if anybody wanted to look at it . But as far
11 as while we ' re in litigation, things that we say here are
12 privileged and -- from disclosure . So I would advise you
13 not to discuss anything that we -- that we talk about
14 today, outside of this room, except with the attorneys
15 privately.
16 COMMISSIONER DIGENNARO: We gotcha.
17 MR. SHILLINGER: Okay. This is the -- again, this
18 is the Roy' s Trailer Park case . It ' s Chapter 723 case on
19 Stock Island. There ' s a 720 -- 723 park. The key issue
20 here is, they chose to hookup to Key West Resort
21 Utilities ' gravity system. There ' s two sewer systems on
22 Stock Island. There ' s the preexisting gravity system
23 that ' s been there for 20 years . And then there is the
24 county financed vacuum system. They could have hooked up
25 to the vacuum system. Where they were located, they
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1 could have gone either way. They chose to hook up to the
2 gravity system. We had no investment into that system.
3 And so under the county' s policy, they were not entitled
4 to amortize the hookup fees over time . There were some
5 code enforcement fines, which they settled because they
6 had delayed hooking up while they went through the
7 process . They challenged the hookup fees and the public
8 service commission lost .
9 And so some of the backgrounds facts . They sued us
10 for declaratory judgment regarding the rights to, you
11 know, amortize them over time . What they' re looking to
12 do is have the court order the county to add them to the
13 assessment roll, to refund the $278, 100 that they paid to
14 Roy' s, or to Key West Resort Utilities for us to pay
15 them. Basically, loan them the money, and then they pay
16 us back over time . The -- over time . They also, for
17 obviously, interest, attorneys fees, costs . Another
18 allegation is that they were entitled to amortize these
19 under Chapter 723 . We dispute that . Have an equal
20 protection claim because they say we ' re treating them
21 different than other people; we ' re not . And 1983 claim,
22 which is basically saying we discriminated against them.
23 It ' s a different count to the equal protection arm.
24 Our defense is, we ' re barred by article seven,
25 section 10 of the Florida Constitution from allowing the
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1 public threat and for no public obligation. Just -- we
2 don' t have to loan them this money. There is nothing
3 here we created. And we can' t do that . They chose to
4 hook into the system that we had no interest in. So we
5 couldn' t even find a public purpose . We ' ve treated them
6 like everybody else on the gravity system. Boyd' s
7 Campground, down the street from them, they hooked into
8 the gravity system. They had to pay upfront . The 723
9 passthrough isn' t available because we read that statute
10 to only apply if its a municipal utility. And this Key
11 West Resort Utilities is not a municipal utility. So
12 that provision of 723 doesn' t apply. It allows them to
13 be treated like a single family home .
14 I will tell you, I see the look on your face .
15 Commissioner DiGennaro, since you have some experience
16 with Chapter 723, there ' s absolutely no case law on this
17 whatsoever . No attorney general opinions . This is just
18 our read of the statute, but we think we have a pretty
19 convincing argument on that . We also think that due to
20 the settlement of the code enforcement fines, there is
21 some language in the agreement that gives us an ability
22 to argue, they waived it . They hooked up . We settled
23 the fines . They shouldn' t have come after us for this .
24 And so they would waive it .
25 COMMISSIONER DIGENNARO: I understand that .
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1 MR. SHILLINGER: We filed a counterclaim, Breach of
2 Contract . We had the Settlement Agreement, or
3 Declaratory Judgment . What are our rights under the
4 settlement agreement?
5 COMMISSIONER DIGENNARO: Who is representing this
6 other company?
7 MR. SHILLINGER: It ' s being represented by a
8 boutique firm out of Tallahassee, David Eastman.
9 COMMISSIONER DIGENNARO: Okay.
10 COMMISSIONER WINGINGTON: The owner is an attorney
11 here .
12 MR. SHILLINGER: Yes . The owner is an attorney here
13 in Key West . Michael Browning.
14 COMMISSIONER DIGENNARO: Michael?
15 MR. SHILLINGER: Yes . He ' s the owner. And his
16 partner is Tom Sireci, another attorney.
17 COMMISSIONER DIGENNARO: Gotcha.
18 MR. SHILLINGER: Posture . Pleadings are completed.
19 We completed the paper discovery. We 've got more
20 discovery to go, if we ' re going to go to trial . They
21 filed a Motion for Summary Judgment seeking a Declaratory
22 Judgment . It is going to be heard in the -- towards the
23 end of June . Just to give you the full scope of things .
24 For count four, possibly count three, we may have some
25 insurance coverage, on this case . They haven ' t moved for
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1 Summary Judgment on that .
2 COMMISSIONER DIGENNARO: They told you that?
3 MR. SHILLINGER: We have it for count four, the
4 civil rights claim. Count three, the equal protection,
5 you can make the argument that it ' s a civil rights claim
6 and so if a judgment were entered on count four or count
7 three, we turn to the Florida League of Cities and say,
8 in a judgment, we have $100, 000 of self-insurance
9 retention deductible, $500, 000 coverage . So, clearly, we
10 could cover this claim. And since they' re allowing us to
11 defend it, we ' re keeping track of our time . And those
12 costs work against our deductible . So, for the time that
13 we have --
14 COMMISSIONER DIGENNARO: What ' s your recommendation?
15 MR. SHILLINGER: What?
16 COMMISSIONER DIGENNARO: What is your
17 recommendation?
18 MR. SHILLINGER: The recommendation is to reject
19 their judgment offer . Do you want me to just skip ahead
20 to that? The terms of the settlement . They want us to
21 loan them the money. They' ll pay it back over 20 years .
22 They -- the public purpose that they have offered us is
23 that they will remain a trailer park until the loan is
24 repaid, and then we bear our own attorneys fees and
25 costs . It -- it ' s really an illusory promise . They' re
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1 going to stay that way until it ' s -- the market forces
2 are available for them to change . So we don' t really get
3 anything out of this is -- and -- but they' re not willing
4 to put it to an affordable housing deed restriction.
5 That was our count . Let ' s put it in a deed restriction.
6 They said, no . They' re not willing to do that . So if
7 they would have done that, we would have the -- so --
8 COMMISSIONER DIGENNARO: Your recommendation.
9 MR. SHILLINGER: The recommendation is, reject this
10 and go to hearing. And our downside we make -- if we
11 lose --
12 COMMISSIONER DIGENNARO: I like your recommendation.
13 I like your recommendation.
14 MR. SHILLINGER: Okay.
15 THE MAYOR: Next item, Counselor, unless there is --
16 MR. SHILLINGER: If this is definitely the
17 intention, that ' s our recommendation. We don' t need to
18 vote unless I hear somebody saying, no, I want you to go
19 in the other direction, then we need to hear that . So
20 that ' s my intention, to go forward and fight this .
21 Reject the offer .
22 THE MAYOR: Right . But we ' re not voting here .
23 MR. SHILLINGER: You' re not voting here, but if --
24 if somebody wanted to take -- you know, for us to go in a
25 different direction, let us know --
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1 MS . HUTTON: Then you can vote --
0
2 MR. SHILLINGER: -- and we ' ll hold the appropriate
3 vote, at the appropriate time .
4 MS . HUTTON: -- at the meeting.
5 COMMISSIONER WINGINGTON: These meetings are for --
6 okay. I agree . I 'm glad we got insurance . These fees
7 are the same, as less than $4, 500 that people use to
8 hookup. Shark Key could have paid that $4, 500 over a
9 period of time . Every trailer park on Stock Island could
10 have paid that money over time . Roy' s was different
11 because he was right there at the plant and he could
12 connect by gravity. Boyd' s run a line over 2, 500 feet .
13 They didn' t want any county money on the property because
14 of other reasons and they paid for it on their own. So
15 Roy' s had mentioned, his representative had mentioned
16 several times that they would pay the fee . They didn' t
17 need to be amortized.
18 MR. SHILLINGER: Right .
19 MS . HUTTON: Amortized.
20 COMMISSIONER WINGINGTON: Yeah. But it is something
21 that was offered everybody else in the county, to be able
22 to pay that 27 -- $4, 500 . $4, 500 or 30, 000 on -- on --
23 on Cudjoe .
24 COMMISSIONER DIGENNARO: They turned it down?
25 COMMISSIONER WINGINGTON: Pardon?
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1 COMMISSIONER DIGENNARO: They turned it down?
2 COMMISSIONER WINGINGTON: Well, they weren' t -- I
3 don' t think they turned it down as much as they knew they
4 had to hookup . They were in Code Enforcement because it
5 was a walk through, at that time . And in order to move
6 it forward without having fines because some other people
7 were going to file suite anyway. An issue for one day
8 that had to move forward. So I 'm right up here on the
9 issues . I feel uneasy about this . I don' t disagree with
10 what you' re saying, but he will be the only one that has
11 been denied being able to pay over time .
12 MR. SHILLINGER: But he chose to hook --
13 THE MAYOR: But it was his decision to hook into the
14 gravity system.
15 COMMISSIONER WINGINGTON: Well -- but here ' s -- he ' s
16 right beside the plant and he had the gravity system on
17 his property. He would have had to tear out his entire
18 collection system, which is probably 5, 000 feet of pipe,
19 in that collection system, and allowed them to come over
20 to install . Probably, a million dollars worth of vacuum
21 pits and lines . We have used the system. So instead of
22 doing that, he chose wisely, as his engineer told him to.
23 He took -- put a pipe across the street because of the
24 expense, and connected to the plant . He is in the new
25 system. He ' s in the new system, not the old system. The
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1 old system is in when he bought it . The new system, he ' s
2 in phase two on the engineering plans . And I 'm not
3 arguing with you. I don ' t disagree with what you' re
4 saying. I 'm just saying, on the surface -- and I know
5 what he ' s going to argue . And we have -- we have a good
6 chance of losing this, at no fault of your ' s .
7 MR. SHILLINGER: And the downside of losing is,
8 we ' re going pay the money that he was asking us to pay
9 him anyway.
10 COMMISSIONER WINGINGTON: Yes .
11 MR. SHILLINGER: Plus $20, 000 in attorneys fees .
12 But we can -- we can leverage that with our appellate
13 rights, if we did lose, or you know, the insurance
14 coverage issues . So there is really very little downside
15 of us going forward with the hearing.
16 COMMISSIONER DIGENNARO: Okay.
17 MR. SHILLINGER: That ' s our recommendation. That
18 concludes the closed session on this one .
19 MS . HUTTON: We need to reopen -- unfortunately, we
20 need to reopen the public hearing and then reclose it for
21 the second closed session. I got to find Bell .
22 MR. SHILLINGER: Why do we have to close it between
23 them; being very super cautious, so we don' t get into --
24 and maybe pierce the -- would you like to go to jail --
25 THE MAYOR: We ' re going to adjourn this closed
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1 session and reopen the public. And I reconvene this
2 Board of County Commissioners .
3 (The attorney/client closed executive session was concluded at
4 2 : 48 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 and did stenographically report the
5 foregoing proceedings and the transcript is a true
record.
6 Dated this 27th day of May, 2009 .
7AD, ry �
Patricia A. Z ischka
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