Closed SessionBOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
TIME CERTAIN: 8:30 AM
Meeting Date: December 17, 2003 Division: County Attorney
AGENDA ITEM WORDING:
Attorney -client closed session in accordance with F.S. Sec. 286.011(8), to discuss the
pending litigation matters of Karl Loose v. Monroe County and Monroe County y Poster
Buckley, Schuh & Jernigan.
ITEM BACKGROUND:
The Board approved the request to schedule a closed attorney -client session for December
171 2003 in Marathon
PREVIOUS RELEVANT BOCC ACTION:
See above.
STAFF RECOMMENDATIONS:
CONTRACT/AGREEMENT CHANGES
N/A
TOTAL COST:
COST TO COUNTY:
APPROVED BY:
BUDGETED: Yes ❑ No ❑
SOURCE OF FUNDS
County Attorney ■ OMB/Purchasing ❑ Risk Management ❑
DIVISION DIRECTOR APPROVAL(::�QQL- '_9LZ(, I o3
J. R. COLLINS
AGENDA NO.
Page 1 of 1
Pam Hancock
From: "Shillinger-Bob" <Shillinger-Bob@MonroeCounty-FL.Gov>
To: "Pam Hancock" <phancock@monroe-clerk.com>
Cc: "Belle Desantis" <iesantis@monroe-clerk.com>; "Rainer -Debra" <Rainer-
Debra@Mon roeCou my-F L. Gov>
Sent: Wednesday, May 28, 2008 3:44 PM
Subject: RE: Closed Session
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 Florida 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-clerk.com]
Sent: Wednesday, May 28, 2008 3:28 PM
To: Shillinger-Bob
Cc: Belle Desantis
Subject: Closed Session
M1111117ne
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
County of Monroe
The Florida Keys
Robert B. Shillinger, County Attorney**
Pedro J. Mercado, Assistant County Attorney **
Cynthia L. Hall, Assistant County Attorney **
Christine Limbert-Barrows, Assistant County Attorney **
Derek V. Howard, Assistant County Attorney**
Steven T. Williams, Assistant County Attorney**
Peter H. Morris, Assistant County Attorney
Patricia Eables, Assistant County Attorney
Chris Ambrosio, Assistant County Attorney
** Board Certified in City, County & Local Govt. Law
May 25, 2017
Kevin Madok, Clerk of the Circuit Court
Sixteenth Judicial Circuit, State of Florida
Monroe County Courthouse
500 Whitehead Street
Key West, FL 33040
BOARD OF COUNTY COMMISSIONERS
Mayor George Neugent, District 2
Mayor Pro Tem David Rice, District 4
Danny L. Kolhage, District I
Heather Carruthers, District 3
Sylvia J. Murphy, District 5
40i I
Office of the County Attorney
1111 12`h Street, Suite 408
Key West, FL 33040
(305) 292-3470 — Phone
(305) 292-3516 — Fax
In Re: Karl Loose, Advocates for Disabled Americans v. Monroe County
Dear Mr. Madok:
Please find enclosed herewith the transcript of the December 17, 2003 closed executive
session of the Monroe County Board of County Commissioners regarding the above -
referenced matter. Under F.S. 286.011(8), the transcript may be part of the public record
because the litigation has concluded.
Thank you for your assistance with this matter. Please contact me should you have any
questions.
Sincerely,
Ro ertB. Thillinger
Monroe County Attorney
Enclosure
BOARD OF COUNTY COMMISSIONERS
MONROE COUNTY V
COMMISSION:
APPEARANCES:
EXECUTIVE SESSION
POST, BUCKLEY, SCHUH & JERNIGAN
Mayor Murray E. Nelson
Commissioner Dixie Spehar
Commissioner George Neugent
Commissioner David Rice
Commissioner Charles "Sonny" McCoy
James Roberts, County Administrator
John R. Collins, Esq., County Attorney
Robert B. Shillinger, Jr., Assistant
County Attorney
For the County:
Wayne Larue Smith, MBA, JD
The Smith Law Firm
333 Flemingg Street
Key West, FL 33040
Marathon Government Center
2798 Overseas Highway
Marathon, FL
Wednesday, December 17, 2003
8:39 a.m. - 9:05 a.m.
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(The following occurred in closed session:)
MAYOR NELSON: We have, this morning, a special
session. Are all parties here?
(Affirmative responses.)
MR. ROBERTS: I guess you noticed that the mics
aren't working. Do you need the microphones?
Mr. Mayor, we don't record this session and so
we generally don't use the microphones. The
attorneys generally speak right in front of the
Commission anyway.
MAYOR NELSON: That'd be fine. Have them come
forth.
MR. SHILLINGER: Good morning, Commissioners.
This morning we have a few matters that we're going
to consider in closed session.
First matter we can do is Monroe County versus
Post, Buckley, Schuh & Jernigan. What we'll have is
a closed session. So the only people present will
be the commissioners; the County Administrator, Jim
Roberts; the County Attorney, Richard Collins;
myself, Assistant County Attorney, Bob Shillinger;
outside counsel, Wayne Smith, will be present for
this case; and we have a certified court reporter.
So if Mr. Siverson, who's our attorney in our
next case, will leave the room, we'll get started.
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MR. SMITH: Are we set?
MR. SHILLINGER: We're set to go.
MR. SMITH: I had recommended the last time I
appeared before you in the public session that we
have this session primarily so we could speak a
little bit more freely about the prospects that we
face in the case, what I think are some unique
considerations, and so that you -all can give some
guidance to staff and to myself as to how to
proceed.
I'll quickly go through a brief history. This
is the action that Monroe County brought in 1994
against the engineers, Post, Buckley, Schuh &
Jernigan. They were the consulting engineers hired,
among other things, to design the elevation of the
Card Sound Road and then to supervise the
construction.
One of their tasks was to estimate the cost for
the purpose of determining whether we could afford
to undertake the project. The costs were estimated
at approximately 11 million dollars, with a warning
that, at that time, the cost of road building
projects was increasing and, therefore, it was
imperative to consider undertaking the project
pretty quickly. The background of that is, it had
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been about 12 years in the planning stage.
The County had available for the project
approximately six million dollars. We were five
million dollars short. As you all know better than
I do, the only way that we could finance that by
borrowing money was to float bonds. We did so.
Once the bonds were issued and funded and the money
was in the bank, the project was put out for final
bid.
The final bid by Florida Rock & Sand was
approximately $3,700,000. It actually came in at
just about four million dollars, but either one of
those figures, it was apparent that six million
dollars was enough money to pay for it in the first
instance and the cost estimates were pretty far off
the mark.
We defeased the bonds, that is, we retired them
a little bit early. There was a little bit extra
cost involved in that, but the combined cost of
issuing the bonds and defeasing the bond was
approximately $475,000.
We attempted to negotiate some agreement to
have Post, Buckley shoulder that expense or to at
least share in it. They refused and we filed a
lawsuit against them, and it turned into, lo, these
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many years of litigation.
The case finally went to trial after some
extraordinary pretrial litigation in October of
2001. The jury, in effect, split the claim and gave
us a verdict of $233,600.
The judge ruled that we were entitled to
recover our attorney's fees on top of that, which by
now have exceeded the amount we were originally
seeking to claim. And because so much time had
passed and prejudgment interest was mandatory, the
interest was another couple hundred thousand dollars
and the attorney's fees, at the time, around
$450,000.
Post, Buckley took the case up on appeal.
Pending appeal, there was a proposal of settlement
made by Post, Buckley's malpractice insurer of
$470,000. We negotiated back and forth. At the
time, our bottom line was $575,000. That figure was
not accepted by Post, Buckley and they proceeded
with the appeal. I won't bore you with all of the
grounds of the appeal, but some of them are very
important for your consideration.
One is, for years, Post, Buckley fought at the
trial court and in the appellate court that they
couldn't get a fair trial here because of the
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pretrial publicity. That claim was rejected. So if
it goes back to trial, it's going back to trial here
in Monroe County, and there will be no question
about it.
Post, Buckley fought and, frankly, we thought
they'd win, on the claim that the way the contract
was drafted, even if we win, we don't get attorney's
fees. That claim was rejected by the Court of
Appeals. So if we were to go back to trial, we'll
get attorney's fees and that's not going to change.
The prejudgment interest issue doesn't change
because it's mandatory in virtually all cases, with
very few exceptions.
The Court of Appeals overturned the jury's
verdict on one ground and one ground only, and that
was what the Court of Appeals considered to be a
technical defect in the jury instructions.
The instructions were worded in a way that the
Court of Appeals read that the engineers had a duty
to be close in their estimate. So you look at their
estimate, you look at what the actual cost was and
you determine, all factors considered, if the
variation was reasonable.
And the Court of Appeals said no, because of a
disclaimer in the contract that they don't guaranty
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cost estimates and because they are professionals,
the jury should have been instructed that they had
to take reasonable steps that were reasonably
calculated to arrive at an accurate estimate rather
than comparing the estimate to the actual cost.
It would have been very useful to us early on
when the case started and through all the years
of -- leading up to trial, for the trial court to
have made that same ruling because there were
rulings very early on in the case, starting with a
motion to dismiss, where the judge said, "No,
they've got to come reasonably close."
Because, in my opinion, we could litigate the
case on either ground and here's why: Our
professional engineer testified at trial and would
be prepared to testify again that any reasonable
engineer in estimating the cost of a road project
this size would go to the FDOT database.
The Florida Department of Transportation, for
about 15 years, has maintained a database of actual
costs on all road projects funded by any
governmental entity in full or in part, so that when
engineers are estimating the cost, they can go to
the database and determine whether they've got
reasonably accurate market figures.
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If Post, Buckley had gone to that database to
get their cost figures, the estimate would have been
$3,900,000. They didn't do that and our engineer --
not only did our professional engineer, expert
engineer, testify that that's what they should have
done, their own expert testified that that would
have been a good idea.
So -- but it leaves us with the prospect of,
the verdict has been vacated with an order from the
Court of Appeals to go back to trial. So we're
going back to trial unless we settle the case before
then.
We've had no overtures for settlement from
Post, Buckley. We've made no overtures because we
wanted to have this opportunity to present the
status of the matter to you -all and for you -all to
make a decision about how to proceed.
If we go to trial, I'll tell you what the good
news could be and I'll tell you what the bad news
could be. If we go to trial and the jury, again,
makes a decision that they ought to just split it
between the two of us, in effect, and give us half
of what we wanted, the verdict will be for a quarter
of a million dollars, the interest on top of it will
be for a quarter of a million dollars and the
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attorney's fees, by that time, will be between
$500,000 and $600,000, for a verdict of over a
million dollars.
If the jury sees things our way and says we
ought to get the full 470, you'll double that with
interest and add the attorney's fees on it, and it
would be a verdict -- and probably a collectible
judgment, given the size of Post, Buckley and the
fact that they're insured -- of over a million and a
half dollars.
If we lose the case, because we now have put it
into a posture that if we win, we get attorney's
fees, there's a possibility -- and one that I can't
give you an accurate prediction about -- that if we
lose -- if we lost altogether and the jury said,
"Monroe County gets zero," there's a possibility the
Court would say that Post, Buckley could collect
attorney's fees from us, and we could expect that
their attorney's fees would be in a range similar to
that of Monroe County's.
The reason I can't give you an accurate
prediction about that issue is because, as a general
rule in a contract where it says, if we get in a
fight and go to court, whoever wins gets their
attorney's fees, that kind of a contract provision
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is always construed that no matter who the winner
is, they get their attorney's fees.
We have a very unusual provision here that
says, if we go to court for any reason with Post,
Buckley, or anybody else, for any reason arising out
of this project, that Post, Buckley will indemnify
us for all of our losses, including attorney's fees.
It's an indemnification clause and not an attorney's
fee clause.
So there's an art -- it's, frankly, so unique,
that's why I didn't think we'd win on the attorney's
fees issue on appeal, but we did. But the rule that
says that it flows both ways may not apply to this
unique kind of provision, and that's why I can't
predict it.
So, from my way of decision -making, the range
to consider from bad news to good news is, we could
lose $500,000 to $600,000 or we could win a million
five, a million six, in that range. And both sides
can settle for any figure that both sides agree on.
We know that before they prevailed on appeal, that
Post, Buckley's insurers were willing to pay 470 and
we were willing to accept 575.
One last sort of gratuitous opinion. I
personally think that, from a legal perspective, the
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case is in much better shape this time around
because of all the rulings that Post, Buckley took
up on appeal as other reasons why they ought not be
held accountable that were all rejected by the Court
of Appeals.
So the only thing that's going to be different
about this trial is that one jury instruction and
every other legal reason they argued why they
shouldn't be held accountable has been rejected.
Any questions?
COMMISSIONER McCOY: Probably one question I
would have is that if the appeal has been upheld on
such a very narrow thing, this is the only thing
that they could argue when they go back to trial?
MR. SMITH: That is correct.
COMMISSIONER McCOY: All they can argue about
is the instructions that were given by the judge?
MR. SMITH: By the judge, yes, sir.
COMMISSIONER McCOY: Okay. And how could we be
held responsible for instructions that were given by
the judge while we had won every other facet of the
case?
MR. SMITH: It's not that we were held -- we
were held responsible, but the Court of Appeals
determined that the jury instruction error on the
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part of the judge was sufficient that we should go
back and have a trial because it may -- it could
affect the jury's decision as to who is responsible,
because that's really a factual issue.
COMMISSIONER McCOY: So basically what you're
saying, everything then goes back on the table?
MR. SMITH: Everything's back on the table.
COMMISSIONER SPEHAR: Except that we're more
clarified?
MR. SMITH: We're more clarified and we won't
be arguing about the other issues that we were
arguing about before. So it's really pretty narrow.
Now, we're still going to be faced with a jury
deciding what was reasonable. And Post, Buckley's
argument on the reasonableness ground is this: The
cost estimates had been updated for a number of
years, and in late 1992, early 1993 -- it was
actually a February 1993 meeting that the final cost
estimate of 11 million dollars was presented. It
was -- a number of issues were dealt with, and the
Commission decided that we should start the process
of floating the bonds.
Post, Buckley's representatives were there as
our advisors. We made that decision in February and
finalized the decision in May of 1993, and, again,
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Post Buckley's representatives were present, and
they said, in effect -- and all of this is a
recorded record -- this is a good idea because costs
are going up.
When the bids were opened in September of 1993,
and when we sort of screamed bloody murder, "How
could this have happened?" They said, "Well, you
shouldn't have floated the bonds so soon. You
should have waited, Monroe County, until the bids
were open."
When we all scratched our heads and said, "Why
weren't you saying this at the February meeting and
why weren't you saying this at the May meeting?
You, the engineers that we're paying a million
dollars a year in fees to, to tell us how to make
these decisions, including financing decisions."
So their big defense is that we rushed to
judgment and that if we had waited to float the
bonds, we would have seen we didn't need them and
this would never have occurred.
And our answer is: "We didn't think we had
time because -- we didn't think we had time from
September to when construction was going to start in
November, the two months was long enough, and when
we said we're going to do this, you, Post, Buckley,
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said, 'We concur."'
COMMISSIONER McCOY: There's one more argument
that you have that I haven't heard yet. The
industry standards are that you have to do this in
advance. Because if you wait for the bids to open,
then to go to a bond issue, the time that's required
to go through that bond issue is so much that then
that -- that offer or that bid is no longer valid.
And you may not do that.
The standards for the industry is that you
should have that bond set in place prior to it.
Now, if it doesn't meet, then that's another story.
MR. SMITH: And, actually, I haven't presented
that here. It was presented at trial and you can
bet your right hand it will be presented again if we
go back to trial.
It was actually the testimony of several County
representatives, including Former Commissioner
London, who said that very thing. He said, "Not
only is it a standard practice, it's required of the
County. Because unlike private individuals, we
don't get to enter into a contract unless we have
the wherewithal to make good on it." And that means
something more than the possibility that the bonds
will actually be purchased.
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COMMISSIONER MCCOY: That is such a compelling
argument industrywide that I don't understand how
they would hang their hat on that.
So basically what I think that you're saying or
that you're waiting for is a settlement overture?
MR. SMITH: Unless you instruct me to approach
them.
COMMISSIONER McCOY: I think the settlement
overture is required to come from them first, if you
concur.
MR. SMITH: I can't disagree with it. I get
concerned sometimes if there's an opportunity, but
for reasons that seem artificial to me from my
perspective, that nobody wants to make the first
move, that that's not always a good idea.
Settlement discussions, overtures or direct
discussions are always privileged. I don't perceive
any disadvantage to my saying, "Do your clients want
to visit settlement before we go back and try this
case again?" So -- but it's a strategic decision,
and I don't honestly see an advantage one way or the
other.
COMMISSIONER McCOY: You're going to go back
and you're just going to say, "The door is open for
you to make an overture"?
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MR. SMITH: I could certainly do that.
COMMISSIONER McCOY: That's what you're saying?
MAYOR NELSON: Mayor Spehar.
COMMISSIONER SPEHAR: Would you -- again, if we
go back to court and it's split, what is the
guesstimated amount that we would have? We would
have the attorney's fees --
MR. SMITH: You would have it all. It would be
about a million dollars.
COMMISSIONER SPEHAR: A million?
MR. SMITH: Yes. Because it would be half --
if they gave us half again, that's a quarter of a
million. The interest is another quarter of a
million. It would be about 1.1 because, by that
time, I think the fees and costs and expert
witnesses and all of that would be up to about
$600,000.
COMMISSIONER SPEHAR: I'd personally like to
see us go back to court.
COMMISSIONER RICE: So would I.
MAYOR NELSON: Commissioners, it seems as
though we've got at least two commissioners that
would like to at least go back to court and take
this to its conclusion. Commissioners over here?
COMMISSIONER McCOY: I think that if they do
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not make an interesting overture for settlement,
then I think probably we would all feel the same
way.
All you want to do then is say that, "The door
is open in case you want to make a settlement offer.
If not --" and this is all privileged when you two
are talking -- "that my instructions are that we're
going to go back to court if you do not come up with
a settlement that is substantive enough for me to go
back to the board."
MR. SMITH: It would be helpful to me, if
you're inclined to do it, to tell me what the
threshold of being substantive enough would be. I
imagine if they offer us $25,000, that that wouldn't
be very inspiring.
MAYOR NELSON: Mayer Spehar.
COMMISSIONER SPEHAR: There's one thing. If
you do enter into this discussion, prior to going,
absolutely no consideration that part of it be that
they provide services to us as they offered before.
That, to me, was outrageous.
MR. SMITH: They've offered it and that's been
rejected on so many occasions that even I would be
surprised if they offered it again, but I understand
the instruction, Commissioner.
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COMMISSIONER SPEHAR: Okay.
MAYOR NELSON: Commissioner, it seems as though
we have a concurrence as to leave -- to leave an
offer open to the complainant, but also to move
ahead with the court case should that be required to
get a remedy to this.
COMMISSIONER McCOY: To answer your question
about what is substantive enough, we're going to
probably leave a lot of that to you. We're going to
use your expertise in litigation to come back and
say -- because you're going to be negotiating it.
And if you find that -- we're going to look for some
judgment from you.
If this does not look accurate and we will not
be recovering a sufficient amount, I think it would
be better for you as a negotiator to handle -- to
have some kind of latitude. Unless we gave you a
threshold. If we gave you a threshold, then you
wouldn't have latitude. I don't know how the rest
of the commissioners feel.
COMMISSIONER SPEHAR: Would you want to at
least give him an ultimate minimum?
COMMISSIONER McCOY: You want to give it to
him?
COMMISSIONER SPEHAR: Well, I think it's back
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to 475, but I would hate to see us --
COMMISSIONER McCOY: It's going to come back
here. He's not going to make a decision.
COMMISSIONER SPEHAR: His discussion --
COMMISSIONER McCOY: All he's going to do is
say, "I don't think if I go back to the board,
they're going to accept this." I think maybe if I
go back to the board -- at least there's something
that we'll listen to. That's all I'm saying.
COMMISSIONER SPEHAR: Okay.
MR. SMITH: Well, I can tell you how we handled
it in the past. We did not come and take the
extraordinary step of calling an executive session
like this one every time they made some ridiculous
proposal, quite frankly.
In consultation with the County attorney, we've
made the decision when there was something on the
table that we thought warranted your examination,
your wisdom and your consideration.
I don't feel uncomfortable with doing that, but
I'll reveal to you in advance before you so empower
me, that it's my opinion that when they offered 470,
it wasn't acceptable because we had a verdict for
that amount and it didn't cover any costs or any
attorney's fees. So we added the cost and said,
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"Our minimum is 575," and said, "We'll waive the
attorney's fees."
We're now, if we win, guaranteed to get the
attorney's fees, so, in my way of thinking, it gets
substantive when we're back up there at 575 or
above.
MAYOR NELSON: Right.
COMMISSIONER McCOY: Would you take
9-9-9-9-9-9-9 as a number?
MR. SMITH: If you mean just a penny shy of a
million dollars --
COMMISSIONER McCOY: Yes.
MR. SMITH: I would hurry to these chambers to
eagerly tell you about such an offer because, by my
way of thinking, that would be very attractive.
COMMISSIONER McCOY: It's attractive to us.
We've given you -- but we're not holding you to it.
If you see something reasonable, we're here to
listen.
COMMISSIONER NEUGENT: Right. It's 9 o'clock.
MAYOR NELSON: Would you reiterate -- yes, it's
almost time to dismiss. Would you reiterate this
before we take a -- do we need a motion on this, Mr.
Attorney?
MR. SHILLINGER: No. I would think you'd not
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want to take a motion at this time because of --
MAYOR NELSON: If we do this before we give a
head nod here: If we prevail on the current
conditions, what is the amount -- what is the
settlement amount based on the original judgment of
470 and attorney's fees?
MR. SMITH: If we had the original judgment,
our recovery with attorney's fees would be a million
and a million one, if we achieved that.
You know, it's possible, since we don't know
precisely how the jury came to that number, that the
jury could come back and give us $100,000.
If the jury gives us $2, we still get all of
the interest and attorney's fees, and that's where I
think the -- we're in a more powerful position than
we were before.
If the jury gives us the whole 470, then the
recovery is going to be in the neighborhood of a
million six hundred --
COMMISSIONER McCOY: It appears that they have
more to lose than we do from what you've told me?
MR. SMITH: Yes.
COMMISSIONER McCOY: So I think we're in a good
negotiating posture. We've given you some ranges to
talk about. If, in your opinion, you come back and
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you find something that -- you heard us -- and you
think that we would respond favorably to, or you
think we should listen to anyway, we'll just have
another meeting.
MAYOR NELSON: Well, I think the directions is,
is the 9-9-9-9-9-9 number, obviously everybody
agrees to and come back. You know, if we need to go
to litigation --
COMMISSIONER NEUGENT: Or anything close to
there.
MAYOR NELSON: Right. But obviously I think
this Commission is saying to you that we don't want
to settle this for the original terms and if we
require litigation, further litigation, go for it
and do that.
MR. SMITH: I understand.
MAYOR NELSON: Thank you very much.
MR. SMITH: I will -- if something comes up and
I have any need to, I'll get with Mr. Collins and
we'll discuss it and make a considerate decision as
to whether it needs to come to you.
MAYOR NELSON: Thank you very much for coming
today.
MR. SMITH: Thank you.
MR. SHILLINGER: Proceed to the second one or
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you want to take a break and --
COMMISSIONER McCOY: No, no. Let's do it.
Let's go right now.
(Proceedings adjourned at 9:05 a.m.)
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CERTIFICATE
I, CHRISTINA DiSANTO, 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 19th day of December, 2003.
Christina DiSant6, RR R
Court Reporter
00 ., CHRISTINA DI SANTO
MY COMMISSION M DD 148240
EXPIRES: September 8, 2006
' A(.ho• BontleC ThN Ndery Pubk Urd�
MONROE COUNTY COURT REPORTERS
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CNTY So�MONROE
WESTLORIDA 33040
(305)294-4641
John R. Collins, County Attorney
Rob N. Wolfe, Chief Assistant County Attorney
Suzanne A. Hutton, Assistant County Attorney
Robert B. Shillinger, Assistant County Attorney
Pedro J. Mercado, Assistant County Attorney
April 22, 2004
The Honorable Danny Kolhage
Clerk, Board of County Commissioners
500 Whitehead Street
Key West, FL 33040
BOARD OF COUNTY COMMISSIONERS
MAYOR Murray E. Nelson, District 5
Mayor Pro Tem, David P. Rice, District 4
Dixie M. Spehar, District 1
George Neugent, District 2
Charles "Sonny" McCoy, District 3
Office of the County Attorney
PO Box 1026
Key West, FL 33041-1026
(305) 292-3470 - Phone
(305) 292-3516 - Fax
Re: Karl Loose, Advocates for Disabled Americans v. Monroe County
Dear Mr. Kolhage:
Enclosed please find the transcript of the BOCC's closed executive session held on December
17, 2003. Pursuant to F.S. 286.011(8)(c), the transcript shall be "filed with the entity's clerk
within a reasonable time after the meeting. "The transcript shall be made part of the public
record upon conclusion of the litigation." F.S. 286.011(8)(e).
Since this matter has been settled, please make include this transcript in the public record of
the BOCC's December 17, 2003 meeting. Feel free to contact me if you have any questions
regarding this matter.
Sincerely,
V41K
Robert B. Shillinger
Assistant County Attorney
Enclosure (1)
COMMISSION:
BOARD OF COUNTY COMMISSIONERS
EXECUTIVE SESSION
KARL LOOSE V. MONROE COUNTY
Mayor Murray E. Nelson
Commissioner Dixie Spehar
Commissioner George Neugent
Commissioner David Rice
Commissioner Charles "Sonny" McCoy
James Roberts, County Administrator
John R. Collins, Esq., County Attorney
Robert B. Shillinger, Jr., Assistant
County Attorney
For the County:
Scott E. Siverson, Esq.
Vernis & Bowling
81990 Overseas Highway
Islamorada, FL 33036
Marathon Government Center
2798 Overseas Highway
Marathon, FL
Wednesday, December 17, 2003
9:05 a.m. - 9:20 a.m.
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(The following occurred in closed session:)
MR. SHILLINGER: Commissioners, Bob Shillinger
from the County Attorney's office. This is Scott
Siverson from Vernis & Bowling. He is co -counseling
this case with us.
This is the case of Karl Loose versus Monroe
County. It's an Americans with Disabilities Act
case.
Karl Loose is a resident of New Jersey who's
made a couple trips to the Keys and seems to finance
his trips by filing suit against different entities,
including the County.
He's sued -- he's got a history of filing --
six cases in the circuit court against local
businesses. He's sued Monroe County. This is the
second time around. He sued the city of Key West at
least once, if not, twice. He has 21 cases pending
in the US District Court for -- in the Federal Court
in Miami. All of them or almost all of them are in
Monroe County.
So this is a professional plaintiff. He's
complained about the facilities of the courthouse,
the building that's been rehabbed, the clerk's
records facility, the parking lot areas. He's also
raised issues with respect to Higgs Beach, some of
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the bathroom facilities, the parking, things like
that.
We brought in Vernis & Bowling because they
have some experience in handling these type of
cases. We're kind of trying this case together.
What we're at a juncture of is, we have an
opportunity to attack Mr. Loose's case on the basis
of standing. And what it would do is, say that he
doesn't have a reasonable expectation of coming back
here. He's not a resident of the County. He
doesn't live here, so he really doesn't have the
ability, the expectation, to use these facilities
again.
In order to do that, we would probably spend a
little more money to go down that route in
litigation. If we ultimately lose on that argument
and we have to pay his attorney's fees, his
attorney's fees will ultimately come up.
So the question we have to put to you -- we
don't actually need a vote on this, but we're just
looking for some direction and some ideas -- is, do
we want to go down this route and try and cut off
his legs for future -- rephrase that. Take out
his -- remove his issues of standing for future
cases or do we want to --
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COMMISSIONER McCOY: Are you going to make an
ADA case out of this?
MR. SHILLINGER: I'm trying not to.
MR. McCOY: That's where you're going.
MAYOR NELSON: Can we strike that from the
record?
MR. SHILLINGER: I apologize to Mr. Loose when
he reads this transcript after the litigation.
Do we want to attack his basis for bringing
future claims and spend some money -- spend some
money to do that or do we want to spend less money
today, fix this problem, settle this case and
probably have to deal with him again?
COMMISSIONER McCOY: You're saying this is a
frivolous case?
MR. SHILLINGER: No. He has some merit to the
case.
COMMISSIONER McCOY: There is some merit?
MR. SHILLINGER: There is some merit. There
are some -- he hired an expert, an architect,
Jeffrey Gross, out of Fort Lauderdale, who's on the
Governor's Advisory Council with ADA and
Disabilities. He's testified in a lot of these
cases. He worked with the city of Key West in the
Smathers Beach case.
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So we have some liability here, some exposure.
These are things that are very fixable. It's
like -- the issues are, like the size of the parking
space, the painting, the number, the slope, which at
Higgs Beach, we may have to relocate some of them.
So they're issues that are fixable. The bathrooms,
the railings and things like that.
COMMISSIONER McCOY: Those things have to be
done anyway.
MR. SHILLINGER: Those things have to be done
anyway.
COMMISSIONER McCOY: Why aren't we doing them?
MR. SHILLINGER: We're in the process of
developing our plan to do that.
COMMISSIONER McCOY: We're in the process of
doing -- correcting these things anyway?
MR. SHILLINGER: Yes.
COMMISSIONER McCOY: Well, what's the problem?
MR. SHILLINGER: The problem is, do we want to
litigate further on this issue of standing and try
and prevent him from filing future claims or do we
want to bring this case to a conclusion as quickly
as possible and --
COMMISSIONER McCOY: These things have to be
done. If they don't sue, somebody is going to sue.
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MR. SHILLINGER: Right.
COTMMISSIONER McCOY: And we have a lady here in
a wheelchair that's ready to go right now, probably
looking for something like this.
So I think it'd behoove us just to go ahead and
proceed and correct every ADA thing that has to be
done because it's going to be -- it has to be done
anyway.
MR. SHILLINGER: Right.
COMMISSIONER McCOY: The law says you have to
do it.
MR. SHILLINGER: Right. And we've had a
transition plan. We're working on improving that
transition plan.
MAYOR NELSON: Commissioner Neugent.
COMMISSIONER NEUGENT: Bob, I support both of
the comments here. Mayor McCoy is absolutely right.
And just to expound upon what you had said earlier
about this gentleman going through the Keys and just
suing anybody and everybody that has some kind of
noncompliant ADA situation. We were at a restaurant
last night and we could not get appetizers because
of this particular lawsuit because of the way that
he framed his case.
He is suing Annette's Restaurant here in town
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for every little, what I would consider, frivolous
thing that you can come up with. However, I don't
know how -- how we address this issue outside of
what Commissioner McCoy says, that we need to start
repairing these things and are we going to go into
this case and get our head handed to us?
MR. SIVERSON: Can I interject?
MR. SHILLINGER: Sure.
MR. SIVERSON: The issue on the ADA compliance
is, first, identification. You first have to come
to an agreement as to what is, in fact,
noncompliant -- noncompliance. There are some
disputes on that.
Now, we have to talk a number of times about
coming to a strategy in the sense of, which ones do
we agree that needs to be repaired and then the
fuzzy areas.
Mr. Loose, as a professional plaintiff, is not
a vexatious litigant, meaning he's not bringing
frivolous claims. They do have some merit to them.
However, he has no standing. The person that
profits from this is the attorney.
The attorney gets paid, Mr. Loose does not. So
the purpose of Mr. Loose is to be a true advocate of
the ADA for Monroe County or for the city of Key
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West or for anything else.
So the issue, when you have 21 outstanding
lawsuits, is a house of cards. If he's not here, if
he's not going to use this, the first time a Federal
Court throws him out for lack of standing, it's -- I
don't know what other metaphor. I was about to say
rats in a sinking ship, but that's probably not the
best metaphor. It's a house of cards. Meaning,
other defendants will use the same defense of
saying, "You don't have standing."
I don't think there's any doubt that there are
some issues that have to be corrected. What I think
we -- what I think the Commission could be buying
is a -- if we go ahead with filing this motion, he
has a deadline in which to reply. I think that will
intensify the settlement negotiations, and our
proposal was to propose to him that -- some kind of
a release of the County for all future claims.
So that is -- in other words, to write Mr.
Loose out of the County. And he's risking loosing
the house of cards, if you can understand it the way
I've represented it, for his future claims.
Now, does that affect Mr. Loose? I don't think
so. Mr. Shillinger did his deposition. He has a
vague notion when he's going to return here. So I
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don't think this has an immediate impact or really a
substantial impact on Mr. Loose. It does on his
attorney, Mr. Bryan.
Mr. Bryan has to find another client and
another client has to be willing to do the very same
things that Mr. Loose was. So will they -- I mean,
I don't have a crystal ball to say, "Yes, it's going
to happen."
Certainly the Commission is more familiar with
the type of people that come here, the complaints
that you've seen in your experience and as pertain
to these types of things, but for this client, or
for this litigant, I think filing a motion, putting
them under the pressure and then saying, "Look, we
will -- we're willing to propose a settlement with
you, but the cost is, you no longer visit -- not no
longer visit Monroe County -- but you no longer see
us in the --"
COMMISSIONER McCOY: You don't --
MR. SIVERSON: Yeah, I didn't mean it that way,
but you no longer visit us in the courtrooms of
Monroe County.
MAYOR NELSON: We have a question.
Commissioner.
COMMISSIONER SPEHAR: Moving on to the next
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phase, we are in the process of correcting the
ADA's -- Michelle has made sure that we are very
aware of all of our shortcomings, but -- and it is
the attorney. I know. I have heard from other
sources.
By doing -- by moving to the next phase, we're
basically curbing the attorney's ability -- even if
he finds a client that wants to come on, you know,
and bring another case, are we cutting some of the
tools out of his belt, you know, to --
MR. SHILLINGER: We're cutting this tool out of
his belt. If he finds a local plaintiff, a local
client, like Michelle, or anybody else who's
appropriately disabled under the Act, that person,
depending on their circumstances and their business
in visiting a particular facility, would probably
have standing. So he may go shopping for another
client is what he may end up doing.
MAYOR NELSON: Commissioner Rice.
MR. SIVERSON: I'm sorry.
MAYOR NELSON: We have another question.
Maybe --
COMMISSIONER RICE: Well, I actually want to
stay with the question. I think it's been fairly
clearly explained.
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I think, first of all, we have to recognize
that we probably should have been in the position --
THE COURT REPORTER: I'm sorry. Mr. Rice,
could you just speak up a little.
COMMISSIONER RICE: Sure. We probably should
have corrected many of these issues previously. We
will correct them now. However, if I'm
understanding, this individual is not expected to go
away unless we create those circumstances, and I,
for one, would think that we would be well -inclined
to do that.
MR. SIVERSON: The only thing I would add to
that is that the issues in the future may be such
that you'll be more fact driven. Not -- this is a
legal defense that we're talking about, standing.
It is based on facts, meaning he doesn't live
here in Monroe County, he doesn't work here, he
doesn't visit here that often, doesn't own real
property here.
The cases in the future and the type of
transition that we've discussed would be identifying
obvious noncompliance. The County would then set a
task to make sure that it's in compliance.
In the future, cases would be, I think, more
fact specific, where experts will be getting
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involved and say, "Well, that is in compliance."
And then it's much more great of a risk for the
attorney to spend his time on a contingent basis
because the only way he prevails or the only way he
gets paid is if he prevails or settles.
COMMISSIONER McCOY: Every year I have to go to
continuing education and, invariably, in that
continuing education, ADA pops up and any little
thing that changes.
There are engineers with the County. They have
to also go to continuing education and they're going
to ADA. So they have an idea already and probably
the thing that we should do is probably have the
administrator send a memorandum to the engineering
department and to keep making a continued survey of
all of these things that may or may not be in
noncompliance, and at that time, then we should
proceed.
MAYOR NELSON: Mr. Administrator.
MR. ROBERTS: Thank you, Mr. Mayor. I just
wanted to be sure that the record was not going to
be giving a false impression about the efforts that
the County has undertaken.
Actually, long before any of you were on the
County Commission, we undertook a major effort and
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spent a significant amount of money to bring our
facilities up to standard in reference to the ADA.
And, hopefully, most of that was accomplished back
at that time.
In fact, I remember in the Upper Keys, Dagny
Johnson was assisting us in going around the County
facilities and identifying the difficulties with
being in a wheelchair and accessing our facilities,
and there were folks down in the Lower Keys also.
We spent a substantial amount of money on doing
that.
Now, probably there are places, as evidenced by
this lawsuit, where it's at least arguable that
there are facilities that don't come up to the
standard required by the ADA and, of course, you
know, we should be looking into that, but I wanted
this Commission to know, and I wanted the record to
reflect, that this County has made substantial
effort.
I think Commissioner McCoy's comment just a
moment ago about a continuing review is a very
appropriate one and we should certainly --
COMMISSIONER McCOY: And that's the only thing
I was trying to say, that we should put this out
periodically to show that we are still following up
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on it. Because the ADA says, "Anything which is
reasonable."
In fact, they're not so definitive that
you're done. They talk about -- if you're talking
about 1 and 12 ramp sizes, they're definite, but
where one goes, where one not goes and everything
has to be reasonableness, so --
MR. ROBERTS: Yes.
COMMISSIONER McCOY: And government, though, is
a little bit unreasonable because they demand a
little more of that, more than they would be of a
restaurant.
MAYOR NELSON: Mr. Shillinger, obviously
there's an issue here, too, although this gentleman
is not bringing frivolous lawsuits, he's bringing a
lot of them, and I certainly wouldn't want this
Commission to go down the road of molding someone to
continue that practice because it costs a lot of
money for Monroe County citizens.
Not only that, as Commissioner Neugent just
eluded to, it's created a lot of inconvenience for
really no good purpose.
If we intend to fix all the ADA complaints, we
should go on down that road and do that, but also, I
believe, and I'm hearing from the Commission here,
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they want to make this as difficult on this person
as possible so that this will either be curtailed or
stopped in the future.
MR. SHILLINGER: Okay.
MAYOR NELSON: So if you don't -- if there's
anything else that you need, any kind of direction,
I know, heads shaking, I think that's what everybody
feels about it.
MR. SHILLINGER: Thank you.
MAYOR NELSON: Thank you very much for coming
today and good luck on this endeavor.
Commissioners, we will a 10-minute break and
reconvene at 9:30.
(At this time the above -captioned matter was
adjourned at 9:20 a.m.)
MONROE COUNTY COURT REPORTERS
(305) 852-7344
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CERTIFICATE
I, CHRISTINA DiSANTO, 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 19th day of December, 2003.
C r m tina DiSanto, RPR
Court Reporter
CHRISTINA DI SANTO
MY COMMISSION # DD 148240
=a€ EXPIRES: September 8 20M
�•FJ' n°:` Bonded Thru Notary Public Underwriters
MONROE COUNTY COURT REPORTERS
(305) 852-7344