Monday, October 14, 2019

Our sick beaches. What you can't see can hurt you. You may have been swimming in sewage for days before alarms are raised. The yuck factor. County leadership lacking.

Is there a Miami-Dade County APP we can download to tell us whether it is safe to swim at the beach? Of course not! You have to take your chances. Enjoying our beaches should not be akin to rolling a roulette wheel - or worse, and pardon me, but going to local beaches should not be 'a crap shoot.' And, obviously what you can't see -- can hurt you (and your children)

Miami-Dade County has 'literally' been taking a dump in our tourist-promoted waters for far too long.  Think about how the beach warnings work (as best as they can): We don't know until days after the fact. After People have been soaking in sewage for days. This is known as the cherry on top the sundae - as pointed out by Herald Columnist Fabiola Santiago, "By the time the red flags go up by the lifeguard stand, ocean waters may have been contaminated with fecal matter for days."


So do you (or allow your kids to) swim and follow up a few days later to find out if you guessed right? Or do you simply wait days later to see if your body tells you that you guessed wrong when the illness sets in?

This can't be pointed out enough, it just ceases to be funny.  When will we get County leadership to step forward and fight for clean water. Beaches are Miami-Dade County's tourism engine. Act like it. 

RELATED PRIOR POSTS:  

October 3, 2019, CRAP! More swim advisories for 5 local beaches. This is ridiculous. And to think the County just passed a budget that does NOT invest significant money in repairing our Water Treatment infrastructure.

August 22, 2019, Not again! Our beaches have again failed to meet Health quality standards. Clean this up and promote clean water during Super Bowl Week.

Swim at your own risk, and only if you have the stomach for it. Apparently we are asking people to swim in our toilet. Yuck!

In Miami-Dade County - the beaches are definitely swim at your own risk! Is anyone else sick of this (CRAP)?

Eugene Flinn

Thursday, October 10, 2019

Update on Malbrook intersection issue - discussion of options to threatened removal of 4 way stop signs on 87th Avenue. Meeting noticed for 7 PM, Oct. 17, 2019.

At least someone still listens - the special council meeting is on for October 17, but it will be more of a discussion of options, rather than the proposed rush to lawsuit (I cited the actual language in the prior post).

Obviously the so-called ‘solution’ presented for approval at the Oct 4 council meeting (negotiated outside of resident input) was not acceptable to those most affected. Their voices should matter. The agenda item was denied by a unanimous vote. One strange aspect is that one of the no votes came from the very official who claimed to have negotiated it.

The residents of the affected areas should be involved in the discussion and any decisions made. We had involved them in numerous Town Hall meetings prior to December 2018, when the administrations changed. I recommend that Palmetto Bay reinvigorate the interactive town hall meetings. 

I asked the Village Council Members in my prior post of 10/9 to tread carefully and not file a lawsuit unless it has a solid chance of success, but also be mindful of what future ramifications are for loss of significant partnership, including placing the entire Old Cutler Road traffic relief program on hold creating traffic nightmares for years to come. 

It appears that some have listened as the actual notice differs from the initial saber rattling and reads as follows:

SPECIAL COUNCIL MEETING
Thursday, October 17, 2019 - 7:00 PM
Village Hall Municipal Center, 9705 East Hibiscus Street
The Village of Palmetto Bay shall be conducting a Special Council Meeting on Thursday, October 17, 2019 at approximately 7:00 p.m. at Village Hall, 9705 E. Hibiscus Street, Palmetto Bay, FL 33157. This Special Council Meeting for the purposes of discussing an email received by Miami-Dade Department of Transportation and Public Works (DTPW) and requesting the County to leave the 4-way stop signs located on SW 174 Street and SW 87 Avenue, including discussing on filing an emergency motion for injunctive relief in the 11th Circuit Court against the County to prohibit them from removing the stop signs due to public safety at least until the county commission can rule on this. Discussion will also ensue to petition the Miami Dade County Board of County Commissioners for relief on this matter by directing the County Mayor to stop DTPW from forcing the Village to remove the stop signs in the event the action would create a public safety hazard as in the case of SW 174 Street and SW 87 Avenue. (all underline emphasis added)
Calmer heads on the Village Council may be prevailing. Palmetto Bay should avoid reestablishing a reputation for being mired in litigation. It took significant work to resolve the era of litigation relating to Palmer.

The actual meeting notice provides a much broader range of topics and leaves open the possibility of litigation, if required and deemed to be a viable option. This is for the best of our residents and prevents a further souring of relations with MDC and MDC DTPW.

There is nothing in the notice as to whether there will be any re visitation on the Mangowood 4-ways stop (SW 82nd Avenue at 148th St.), given the change in aggressiveness toward Miami-Dade County.


Wednesday, October 9, 2019

Update - I am been advised that the Grand Opening of MDFR station 62 has been reset for 10:00 AM on November 12, 2019.

UPDATED NOTICE - CHANGE OF DATE  - I was just advised that the grand opening of MDFR Station 62 has been re-set to 10:00 AM, November 12, 2019, 10:00 AM.

Many have worked hard for this station to become a reality. I am looking forward to seeing the permanent station come on line!

Eugene Flinn
This updates my prior post of Monday, October 7, 2019, Good News! Grand opening of MDFR station 62 is Thursday October 24th at 10 am

BREAKING NEWS! Palmetto Bay Vice mayor will call for a Special Council meeting to discuss filing suit against Miami-Dade County.

Will Palmetto Bay face off against Miami-Dade County, specifically Miami-Dade County Transit (DTPW) in court? If so, what are the relative gains versus risks, both immediate to the lawsuit as well as for future relations with Miami-Dade County?

Miami-Dade County notified Village Staff and Member of the Village Council that the 4-way stop signs temporarily placed on 87th Avenue at 174th  will be taken down. If my memory is correct, these 4 way stop signs were placed there conditioned as a temporary measure, only for so long as it took for the Village of Palmetto Bay to fund, design and construct a traffic circle at this location (with County approval). The Village Council agreed to this, but then voted down the traffic circle at the October 4, 2019, Regular Village Council meeting.

It is my understanding that the deal was: no traffic circle, no signs.

Response to date? The following was put out from a resident, providing a response from the Vice Mayor to (their) email: 
I (Vice Mayor John Dubois) have called for special council meeting on Oct 17that 7pm for a resolution to instruct the City Attorney to file an emergency motion for preliminary injunctive relief against the County to stay them from forcing us to remove the 4-way stop signs for reasons of public safety until we have a ruling from the county commission on this matter. The resolution also includes instructions for a petition to the county commission to instruct their DPW to cease and desist from their action to have the stop signs removed. It shouldn't be a problem to leave the stop signs there.
I will not be supporting a traffic circle there or anywhere else unless there is a public safety benefit.All of the data I have seen indicates that traffic circles cause more accidents than stop lights and stop signs.
I spent 20 years living the capital of the US for traffic circles - Wash DC. Even thought they were typically much larger circles, they too were the culprits for about triple the number of accidents vs. traffic lights and stop signs.
Please note that there is no notice of any such meeting posted on the Village website as of 2:15 PM, Wednesday, 10/9/2019.  

10/10/2019 update- the meeting has been added to the village website, listed on the Public Meetings Section (CLICK HERE).

RECOMMENDATIONS: Please weigh the benefits and risks. This will be interesting. Miami-Dade County has been both partner and opponent to Palmetto Bay at various times on traffic issues. We have received millions in traffic related Grants from Miami-Dade County including the $7.5 million obtained under my leadership that was applied to the Franjo Road revitalization. See: July 19, 2016, Final approval from our County Commission- $7.5 million GOB grant APPROVED. More good news for Palmetto Bay. Another grant obtained under my advocacy was a $1 Million TAP Grant for mobility improvements (CLICK HERE). I even pushed and obtained the grant currently being used for the FREEBEE - CLICK HERE - TPO Service Development Grant Program awarded to Palmetto Bay - $225,000 for this upcoming year, year 1of a 3 year grant.

I ask the Village Council Members to tread carefully and not file a lawsuit unless it has a solid chance of success, but also be mindful of what future ramifications are for loss of significant partnership, including placing the entire Old Cutler Road traffic relief program on hold creating traffic nightmares for years to come.

There is much I have written, much more that I could write. But a lawsuit changes the dynamic and could put all other projects at risk, that are far too numerous to list here.

Why not Mangowood? Finally, why now, this lawsuit for Malbrook, and not discuss taking the same action in regard to the past removal of the 4 way stop signs the County removed from Mangowood? CLICK HERE to read more about Mangowood, past traffic town hall meetings and work to find comprehensive traffic solutions.

Tuesday, October 8, 2019

Who lost in the Village Manager fiasco of Monday, October 7, 2019? Perhaps everyone who wanted improvement to our village as confidence is shattered. This should be cause for concern as when a "partner" pulls out like this, it indicates an unhealthy, unstable government, expect a poor product in the foreseeable future.

I certainly did not see this coming. It is shocking to see a group like I3 use the language seen in an e-mail (posted below) to the Palmetto Bay Village Council. But as one saying goes, 'play silly games, "win" silly prizes'. The question is who terminated who and what will this mean for our downtown area?

Perhaps it is time for this current Mayor and Village Council to simply close up shop and scrap any planning. The word is out and it will be very difficult to bring new quality groups in to work with the present leadership. Work to repair the damage to reputation will take much more than a few staged events with live feeds and selfies.  What occurred Monday, October 7th, 2019, was a figurative torching of the reputation of Palmetto Bay. So many worked so hard for a positive image. Petty politics and scapegoating hit the fan.

It is important to contrast the behavior and actions exhibited at the Special Council Meeting of Monday, 10/7/2019 with the June 11, 2019 article that appeared in Miami Today, by Jesse Schecker, entitled "Karyn Cunningham Palmetto Bay mayor seeks creation of vibrant downtown".  The controlled village press fails to match the gutter performance. 'Resident-centric' change was promised, but to date, only chaos,  and unreasonable delay has been delivered. One has to wonder if this I3 project was to be a cornerstone in what the current Mayor had planned for the Palmetto Bay; what she termed (but did not fully disclose) “…creating a vibrant downtown that attracts new residents, businesses and visitors.” (emphasis added)

But now one has to wonder what will ever be created as never, never, have I seen a communication such as this from an alleged Public/Private partner:
Dear Council,
I’m writing because it has been brought to our attention that Ed Silva - Village Manager, is being terminated. 
It is not our business surrounding the issues related to his termination. However, Mr. Silva has been very helpful in his efforts to coordinate and provide leadership in the Village’s downtown area that provided i3 with the comfort and understanding of the opportunity to partner with the Village. Through his representation of the residents and the Council, i3 was afforded the opportunity and was rewarded with the approval to work with a task force, directed by the Vice Mayor and Village Manager, towards a development plan and financial structure that would be presented to Council for it’s approval. It has been clear to us and gave us significant comfort that his sponsorship and significant contribution towards the overall downtown redevelopment plan, coupled with his professional expertise prior to joining the Village as Manager, would help i3 navigate our planning efforts and negotiations with the Task Force. We sensed we could achieve a workable plan that the residents, Council, participating landowners, and i3 could gain excitement and consensus on.
Without Mr. Silva’s participation in this process as Manager, our understanding of and confidence in the Village’s plan to proceed is uncertain. i3 has already invested significant capital in getting to this point and we simply are too uncertain of a path to proceed. We are very disappointed to get to this point as we have spent many hours and days cultivating a plan and, even more importantly, a relationship of trust with many residents and Council. However, we simply cannot proceed without key, approved team members. 
I am happy to discuss this in person with any of the Council members or staff. I know you have a trust of your residents in making these decisions, which you don’t take lightly. However, I also trust that you understand our responsibility in making decisions based upon a path forward that is supported by clarity, stewardship, and sound business practices. This termination, after all of these months of work and establishing a path forward, unfortunately creates uncertainty that we aren’t able to navigate.
Respectfully,
RENE JOUBERT
Principal
i3

This is cause for concern, regardless of your position on the project: I may not have been a fan of this unsolicited bid, but wow, a pullout after substantial investment - I am told a '6 figure' investment by this private partner in the process before the pullout. Perhaps the so-called task force was seen as a sham. Perhaps any commitments made in private by the members of the village council fail to match the performance in public.  What is next? We shall see. 
CLICK HERE to view prior posts  relating to this Unsolicited bid project (I remain on the record and transparent).

More development! LOOK FOR A FUTURE ARTICLE relating to a grand new MEGA development that may be coming soon to a Palmetto Bay Village Council near you! 

Monday, October 7, 2019

Good News! Grand opening of MDFR station 62 is Thursday October 24th at 10 am

UPDATED NOTICE - CHANGE OF DATE  - info updated on 10-9-2019 2:52 pm - MDFR advises that the grand opening has been moved to November 12, 2019, same time (10:00 AM) and same location.

From the good news department:

I am pleased to advise that the grand opening of MDFR station 62 is set for Thursday October 24th at 10:00 AM.

Many have worked hard for this station to become a reality. I am looking forward to seeing the permanent station come on line!

Eugene Flinn

Interested residents have the right to speak at any/every meeting of the Village Council

Monday - October 7, 2019: 
I have been asked whether Residents will be able to speak at the Special Council meeting set for (tonight), Monday, October 7, 2019, at 6:50 PM. The short answer is “YES”. Section 286.0114(2) provides: “Members of the public shall be given a reasonable opportunity to be heard on a proposition before a board or commission.”

Note that the single substantive agenda item is in fact noticed as "3. RESOLUTION WITH PUBLIC COMMENT." Kudos to our Village Attorney and Clerk for the proper notice of this meeting (as provided by agenda - I do not recall receipt of a courtesy e-mail on this special meeting).

I remain proud that under my terms as Mayor, Palmetto Bay always had a section of the agenda for Public Comment from our very first agenda. 

Were you aware that while the Florida Sunshine Law has long granted the public a right of access to such meetings, there was no general requirement for public comment until 2013, when the legislature enacted F.S. 286.0114.

Section 286.0114(2) provides: “Members of the public shall be given a reasonable opportunity to be heard on a proposition before a board or commission.”

Eugene Flinn

Friday, October 4, 2019

“Encouraging” the Palmetto Bay Village Manager to leave. Considering Section 215.425(4)(a), and Section 215.425(4)(a)1., Florida Statutes. May a local government adopt a personnel policy providing severance pay to employees terminated without cause or who submit a resignation.


I have been asked if the Palmetto Bay Manager can receive severance if he tenders a resignation.  CLICK HERE to view the current proposed resolution placed on a Special Council Meeting agenda for consideration Monday, October 7, 2019, at 6:50 PM.  There is a single item:
 

The short answer is YES, a local government may adopt a personnel policy providing severance pay to employees terminated without cause or who submit a resignation.

This question has been asked before. Florida Law was amended restricting severance to a maximum value of 20 weeks.

CLICK HERE to view the Florida Attorney General Opinion - AGO 2016-14.Municipalities - Public Employees - Severance Pay

The Attorney General’s Opinion “in sum” was as follows:
1. Section 215.425(4)(a), Florida Statutes, permits a local government to adopt a personnel policy providing severance pay to employees terminated without cause or who submit a resignation.
2. Section 215.425(4)(a)1., Florida Statutes, limits such severance pay to 20 weeks. 
3. The amendment to section 215.425, Florida Statutes, operated prospectively, and therefore, under the South Daytona ordinance that existed prior to the effective date of July 1, 2011, the City Manager retains the discretion to decide whether to provide severance pay to City employees who were hired before that date.  
4. Section 215.425(4)(d)2., Florida Statutes, provides that an early retirement program that complies with part VII of Chapter 112, Florida Statutes, is not subject to the limitations on severance pay found in section 215.425, Florida Statutes.
A POSSIBLE IMPORTANT DISTINCTION: The question, however, is whether a ‘one time’ resolution, as proposed for Monday, October 7, 2019, specifically tailored to the current Village Manager, properly (legally) constitutes “… adopting a personnel policy providing severance pay to employees terminated without cause or who submit a resignation” as it appears to be a one-time, limited inducement, not a long-term policy of impact to the entire group of employees.

NY Government for improved natural/recreational facilities. “DEC: Rail line should be deemed “interim trail”.

"Railbanking" "interim trail" NY Department of Environmental Conservation works to improve its recreational and natural infrastructure. Turning an unused rail line to trail. FLorida has an extensive Rails to Trails program.

The "DEC" refers to the state of New York Department of Environmental Conservation. I am promoting an interesting read from an upstate NY Media source. DEC: Rail line should be deemed 'interim trail' by Don Lehman, the Post Start. How things differ from NY to Florida. I would love to research why in NY it appears that unused rail lines can be declared "abandoned" and turned to a usable trail, even if 'interim", yet Florida grants rail easements that results in extensive property rights, costing significant dollars plus density development when the Florida rail lines are equally 'abandoned'. NY is obviously a more environmentally friendly State than Florida.

It appears that NY has a process that allows for use agreements between the DEC and railroads which  allows the railroads to avoid substantial maintenance and liability costs while permitting DEC to coordinate with concerned municipalities and other stakeholders to ensure the line benefits the region in the future. Nice. It appears to be a win/win.

Prior RELATED POSTS:
February 6, 2016, Dunedin to Tarpon Springs 1 30 16 - Riding the Pinellas Trail
and
July 29, 2015, The Warren County Bike Trail - I contend that this is a model for the Ludlum Trail

Thursday, October 3, 2019

CRAP! More swim advisories for 5 local beaches. This is ridiculous. And to think the County just passed a budget that does NOT invest significant money in repairing our Water Treatment infrastructure.

It just ceases to be funny.  When will we get County leadership to step forward and fight for clean water. Beaches are Miami-Dade County's tourism engine. Act like it. We need ACTION, not officials who merely "sound alarms." We get plenty of alarms from our local news media - what triggered me for this latest blog post? See:

Miami Herald online: October 3, 2019: Swimming advisory in effect for 5 Miami-Dade beaches for too much fecal matter, by David J. Neal.

As reported by David Neal in the Miami Herald:
The Department of Health in Miami-Dade County on Wednesday posted swimming advisories for five Miami-Dade beaches for too much fecal matter.
The beaches in or near Key Biscayne (Crandon North, Virginia Key, Key Biscayne Beach Club, Cape Florida) were joined by Surfside 93rd Street as waters the DOH recommends swimmers avoid.
The bacteria enterococci count in the waters at these beaches, according to the DOH, “may pose an increased risk of illness...” (Emphasis added)
The big flush: Miami-Dade County officials want us to believe they are concerned about sea level rise. Perhaps their concern is that a rising sea level in Miami-Dade is more like having our community toilet overflow, spewing its sickening contents into our community!

I'm sick of this _ _ _ _ (insert expletive)! Maybe we need to reverse the health warnings relating to swim advisories. Just tell us when we CAN safely swim and enjoy our beaches.

This is Miami-Dade's "New Normal": The new requirement that we check both the weather and the pollution advisories before we decide to go to the beach: Child: "Mommy, can we go to the beach today?" Parent: "Let's me check first to see if the toxin levels are acceptable." Note the use of the term "acceptable" rather than clean - yuck!

RELATED PRIOR POST:  August 22, 2019, Not again! Our beaches have again failed to meet Health quality standards. Clean this up and promote clean water during Super Bowl Week.

Swim at your own risk, and only if you have the stomach for it. Apparently we are asking people to swim in our toilet. Yuck!

Is anyone else sick of this (CRAP)?

Eugene Flinn

Tuesday, October 1, 2019

Update on Administrative action filed by Petitioner, YACHT CLUB BY LUXCOM, LLC., Four (4) discovery demands filed Tuesday, 10/1. Read the details.

October 1, 2019, was another busy day in regarding to gathering discovery in preparation for the upcoming December Final Hearing of this case. Here is a list of what was filed on the DOAH Court docket on Tuesday, 10/1:
  • Petitioner, YACHT CLUB BY LUXCOM, LLC, served the VILLAGE OF PALMETTO BAY COUNCIL, Interrogatories #1 through # 29. CLICK HERE to review the notice.
  • Petitioner, YACHT CLUB BY LUXCOM, LLC, served the VILLAGE OF PALMETTO BAY, Interrogatories #1 through # 29. CLICK HERE to review this notice – and once again – the actual interrogatory questions are not posted online, merely the notice of service.
  • Expert Witness Interrogatories #1 - #15 were served by YACHT CLUB BY LUXCOM, LLC, upon the VILLAGE OF PALMETTO BAY. CLICK HERE to review this notice.
  • An Additional Request for Production was filed, this is a new request entitled "Petitioner's Expert Witness Request for Production of Documents", seeking Expert reports and communications as well as materials that were/are used by the Expert. CLICK HERE to review this 7 page request that seeks the following specified items:
1.                   All documents reviewed by the Experts.
2.                  All documents relied upon by the Experts.
3.                  All reports prepared by the Experts or under their direction.
4.                  All written communications (whether by email, text, letter, fax or otherwise) between the Village or its attorneys and the Experts.
5.                  All written communications (whether by email, text, letter, fax or otherwise) between the Experts and anyone other than the Village.
6.                  All engagement/retainer agreements for the Experts.
7.                   All documents reflecting all amounts paid to the Experts.
8.                  All pictures and videos taken by, reviewed by or relied upon by the Experts.
9.                  Each Experts up to date resume or curriculum vitae.
10.               All documents of any kind that relate to the opinions to be offered by the Experts.

Note – for all 4 requests, all of the interrogatories and the documents requested are to be answered and returned by the Respondent within thirty (30) days from the date of service. Obviously this time frame may be extended based upon request/agreement of the attorneys or by approval of the court.

Please note – for all items – 1-3, the Interrogatories listed above, the actual interrogatory questions are not posted online, merely the notices of service (this is consistent with the rules of procedure).

CLICK HERE to review prior explanation as to the impact of what was filed/served, including an explanation as to What are Interrogatories as well as an explanation of Requests for Production of Documents. 

CLICK HERE to view PRIOR RELATED POSTS regarding this LUXCOM administrative proceeding before DOAH.

SPECIAL NOTE: Palmetto Bay officials have continued to not to update the “litigation page” online to include any information relating to this action (or other recent actions) on the official village website (at least as of  6:30 PM, Tuesday, 10/01/2019). Posting would be for courtesy, as it is not required, but would aid in transparency. As pointed out previously, many of the documents from the prior administrations have been removed from public access online. 

After all, if DOAH can post these (and many other) documents online, why can’t Palmetto Bay?

Eugene Flinn

October 1 - National Dog Day #AdoptDontShop

It's National Black Dog Day.

This should not be single day event. Officially, National Black Dog Day on October 1st encourages the adoption of a dog in the darker shades. Black dogs are less likely to be adopted for no other reason than their coloring.
Our Lil Timmy was adopted from Miami-Dade Animal Services. It has been my pleasure to adopt other dogs from our local groups including Friends Forever Rescue, Paws 4 You.

We have cats that have adopted us as well as through Cat Network and Love Future Foundation.

There are many groups that deserve mention and don’t get enough credit for their hard work, the member devotion to animals. Think of them when you are ready for a pet - #AdoptDontShop

Saturday, September 28, 2019

Update on Fire Station No.: 62. ROW Permit resolved. Main driveway nearly complete

The pictures tell the story. We are getting close to the permanent Station 62 being completed and opening to serve our community. This has been a very long process that has involved so many members of our community. 

The Right of Way permit was finally resolved and construction/completion of the driveway took place during the week of September 23-28, 2019.

PRIOR RELATED POSTS - CLICK HERE to view prior posts documenting the efforts and the progress of life safety in Palmetto Bay. There are more than a dozen articles related to this topic. There is a photo archive and background on the history of the fire station issues.

I look forward to the grand opening!

Eugene Flinn


Thursday, September 26, 2019

Palmetto Bay responds with its hard-hitting discovery requests served upon the Petitioner LUXCOM. Update on Administrative action filed by Petitioner, YACHT CLUB BY LUXCOM, LLC. Two discovery demands filed Thursday, September 26, 2019. Read the details.

Interesting reading. You can start to get a feel for how this case will be litigation before the Administrative Law Judge come December. The Attorneys for the Village of Palmetto Bay served the Petitioner, LUXCOM, with the following requests for discovery on Thursday, September 26, 2019: 

1. The Respondents' First Request for Production to Petitioner (13 pages, 53 numbered requests, beginning page 6 of the document. CLICK HERE to view the complete Request as filed)

2. The Respondents' Notice of Service of First Set of Interrogatories to Petitioner. Note that only the notice of service is filed, the actual Interrogatories are not required to be filed (CLICK HERE to view the complete 2 page notice as filed)

MORE INFO - Research source, See: Florida Rules of Civil Procedure, RULE 1.350 PRODUCTION OF DOCUMENTS AND THINGS AND ENTRY UPON LAND FOR INSPECTION AND OTHER PURPOSES (CLICK HERE for an online reference)

MORE INFO - Research source, See: Florida Rules of Civil Procedure, RULE 1.340 INTERROGATORIES TO PARTIES (CLICK HERE for an online reference)

Some explanation as to the impact of what was filed/served:

What are Interrogatories? These are written questions that are served upon the opposing parties and must be answered under oath. There is a 30 question limits per Interrogatory request and standard forms must be used when such approved standard forms exist. 

EDITOR’S NOTE: There are no standard Interrogatory forms for this type of case.

What are Requests for Production of Documents? Written requests that are served upon the opposing parties seeking examination of documents, or allowing for copies of written documents, emails, photos and similar items related to the case and may be used at trial or for follow up discovery.

A party must respond in good faith – courts frown upon “gamesmanship” an attempt to avoid discovery. Motions filed to address gamesmanship may include (but are not limited to): Motions to Compel, to compel better/more complete answers, or even for sanctions if prior discovery orders of the Court are not properly complied with. The Court will sometimes enter sanctions ranging from reimbursement of attorney’s fees to more severe sanctions that could include the striking of pleadings and/or dismissal of the action. 

There are some recognized “general objections” that include alleging that the discovery requests are: 
1) overbroad;
2) overly burdensome; 
3) not relevant nor likely to lead to the discovery of admissible evidence; 
4) not appropriately limited in time; and
5) seek information protected by the attorney client and/or work product privilege

Documents requested may not be in possession of a party against whom the request is made.

There is a requirement that a party claiming protection of “Privilege” to prepare and file a ‘Privilege log” that properly identifies the documents sought to be protected from disclosure. This aids the court in determining whether the documents are in fact privileged and protected or must be disclosed.

CLICK HERE to view PRIOR RELATED POSTS regarding this LUXCOM administrative proceeding before DOAH.

SPECIAL NOTE: Palmetto Bay officials have continued to not to update the “litigation page” online to include any information relating to this action (or other recent actions) on the official village website (at least as of  9:00 PM, Thursday, 9/26/2019). Posting would be for courtesy, as it is not required, but would aid in transparency. Many of the documents from the prior administrations have been removed from public access online. If DOAH can post these (and many other) documents online, why can’t Palmetto Bay?

Eugene Flinn

Wednesday, September 25, 2019

How Cycling helps the environment.

Canadian Eco-promotion for bike riding. It's healthy as exercise. It's healthy for everyone as cycling is non-emission travel/sport.

Tuesday, September 24, 2019

Pre-Hearing order rendered 9/24/2019. Detailed order providing guidance for procedure and court imposed deadlines. Update on Petition filed against the Village of Palmetto Bay by Yacht Club By Luxcom.

The case is heating up and is presently heading toward discovery and a final hearing.  The Honorable Francine M. Ffolkes, Administrative Law Judge, rendered an ORDER OF PRE-HEARING INSTRUCTIONS posted to the DOAH docket on Tuesday, September 24, 2019. Please note that this order does not set the actual date or the location of the Final Hearing. The Order setting date, time and location was set in a separate order also filed 9/24/2019.


Final Hearing set as follows:

WHEN:             December 18 through 20, 2019, at 9:00 a.m

WHERE:          Palmetto Bay Village Hall, Second Floor, Ron E. Williams Training Room, 9705 East Hibiscus Street, Palmetto Bay, Florida

ISSUE:             Whether Ordinance 2019-17 adopted by the Village of Palmetto Bay on July 30, 2019, is "in compliance" within the meaning of section 163.3184, Florida Statutes.

AUTHORITY:             Chapter 120, Florida Statutes; and Florida Administrative Code Chapter 28-106, Parts I and II.

The Order of Pre-hearing Instructions is a comprehensive order providing discovery, notice and deadline requirements. Please CLICK HERE to view the actual six (6) page order. This order provides for the following (as well as much more detail, so you need to read the full order to see):

Resolution session. The parties shall meet within 15 days of the date of this Order in an effort to amicably resolve this cause.

Discovery. Including the order that "Discovery should be commenced immediately." 

Witness disclosure. Including the order that "All witnesses, including expert witnesses, shall be disclosed no later than 40 days prior to the date of the final hearing. The witnesses shall be identified by name, address, and field of expertise, if any. 

Attorneys' conference.
(a) Counsel for all parties shall meet no later than 15 days prior to the date of the final hearing, and shall:
(i) Discuss the possibility of settlement;
(ii) Stipulate to as many facts and issues as possible;
(iii) Prepare the pre-hearing stipulation as required by this Order;
(iv) Examine all exhibits that are expected to be offered into evidence at the hearing;
(v) Furnish opposing counsel the names and addresses of all witnesses that are expected to be called at the hearing; and
(vi) Complete all other matters which may expedite the hearing in this cause.
(b) Counsel for the Village of Palmetto Bay Council and Village of Palmetto Bay shall initiate arrangements for the attorneys' conference. However, all counsel are charged with the duty of meeting and of complying with the requirements of this Order.

Again, this is a comprehensive order. Please CLICK HERE to view the actual six (6) page order to review all the details of what this order covers.

CLICK HERE to view PRIOR RELATED POSTS regarding this LUXCOM administrative proceeding before DOAH.

SPECIAL NOTE: Palmetto Bay officials have continued to not to update the “litigation page” online to include any information relating to this action (or other recent actions) on the official village website (at least as of  3:00 PM, Tuesday, 9/24/2019). Posting would be for courtesy, as it is not required, but would aid in transparency. Many of the documents from the prior administrations have been removed from public access online. If DOAH can post these (and many other) documents online, why can’t Palmetto Bay?

Eugene Flinn

Wednesday, September 18, 2019

The Administrative action filed by Petitioner, YACHT CLUB BY LUXCOM, LLC, is beginning to heat up. Wednesday, September 18, 2019, was a very busy day for the DOAH docket as Petitioner responds to the filing by Palmetto Bay and serves its initial discovery request upon the Village.

The Petitioner (YACHT CLUB BY LUXCOM, LLC) filed a Reply (CLICK HERE to view) to the filing of the Village, the Amended Response to the Initial Order dated September 6, 2019, indicating that:
1. Petitioner objects to the final hearing being scheduled to take place on any of the Village’s facilities as suggested in Paragraph #2.a of Respondents’ Amended Response. Petitioner and Respondents have adverse interests and the final hearing must be held by an Administrative Law Judge in a fair and neutral location. Conducting the final hearing anywhere within the Village clearly is not such a location.
2. In terms of Respondents’ request that the final hearing be scheduled to take place within forty (40) to seventy (70) days from the date of the Initial Order, such a time frame is neither reasonable or realistic given the discovery Petitioner must take prior to the hearing including both written discovery and depositions. Petitioner has the right to conduct such discovery pursuant to 28-106.206 of the Florida Administrative Code.
In its concluding paragraphs, Luxcom, (YACHT CLUB BY LUXCOM, LLC), through their council, reiterated its request as set forth in its Response to the Initial Order that the final hearing be scheduled to take place on either February 19-21, 2020 or February 26-28, 2020.

FIRST REQUEST FOR DISCOVERY FILED BY LUXCOM.

A comprehensive discovery request for production was served upon the Village by Luxcom. CLICK HERE to view this document and read it for yourself.  The Village has a time frame of 30 days to file its initial objections or provide documents requested. The Village may request an extension of time to respond.

Examples of the discovery requests (35 numbered paragraphs) include:

1. All data considered and/or analyzed in any way by the Village relating to Objective LU-12 in Miami-Dade County’s Comprehensive Development Master Plan (“CDMP”), in connection with the enactment of Ordinance No. 2019-17.1

   ***   ***   ****
6. All data considered and/or analyzed in any way by the Village relating to the discouragement of urban sprawl factor set forth in Fla. Stat. §163.3177(6)(a).2.h,5 in connection with the enactment of Ordinance No. 2019-17. 

   ***   ***   ****

9. All data considered and/or analyzed in any way by the Village relating to Goal 6 in the Strategic Regional Policy Plan For South Florida (“SRPP”) in connection with the enactment of Ordinance No. 2019-17.8

   ***   ***   ****

21. All correspondence, memoranda, letters, notes, e-mails, text messages, electronic communications or other like documents sent to CGA by any of the following: (i) Mayor Karyn Cunningham; (ii) Vice-Mayor John DuBois; (iii) Council Member Patrick Fiore; (iv) Council Member David Singer; (v) Council Member Marsha Matson; (vi) Village Interim Planning & Zoning Director, Mark Alvarez; (vii) Village Attorney, Dexter Lehtinen, Esquire; (viii) Village Manager, Edward Silva; (ix) Village Clerk, Missy Arocha, and/or (x) any other employee(s) or agent(s) of any kind of the Village, whether on such individuals’ Village issued computers, phones or any other communication devices or on such individuals personal computers, phones, or any other communication devices concerning, mentioning or relating in any way to:

(i) The Property;
(ii) Luxcom;
(iii) All activities, communications and proceedings relating in any way to the enactment of Ordinance No. 2019-17; 
(iv) The CGA Report; and
(v) All Staff Reports, Staff Memorandums, and Staff Analysis relating to the Property and Ordinance No. 2019-17.
______________________________________________

It is unknown whether the Village will respond by serving Luxcom with a request for discovery.

Luxcom has not tipped their hand on how far their discovery will go. However, other discovery may follow, including depositions of participants, most likely the Interim Planning Director Mark Alvarez.

This ends my review of the DOAH docket as of Wednesday, September 18, 2019. I will update as relevant events occur.

CLICK HERE to view Prior Related Posts.

SPECIAL NOTEPalmetto Bay officials have apparently chosen not to update the “litigation page” online to include any information relating to this action (or other recent actions) on the official village website (at least as of Wednesday, 9/18/2019). Posting would be for courtesy, as it is not required, but would aid in transparency. Many of the documents from the prior administrations have been removed from public access online.

Eugene Flinn

PALMETTO BAY FILES ITS RESPONSE TO INITIAL ORDER. Update on Petition filed against the Village of Palmetto Bay by Yacht Club By Luxcom.

CLICK HERE to review the actual filing entitled: “RESPONDENTS VILLAGE OF PALMETTO BAY COUNCIL AND VILLAGE OF PALMETTO BAY’S AMENDED RESPONSE TO INITIAL ORDER” (e-filed at 1:07 PM, on Wednesday, September 18, 2019).  Counsel for Palmetto Bay takes issue with the claim of Luxcom Counsel, that they were non-responsive.  Other than that, the document states that the Palmetto Bay Village Council and the Village of Palmetto Bay agree with Petitioner’s report, except in two respects:
a. The final hearing in this matter should be held in the general vicinity of the property at issue, i.e., in South Dade. The Village has facilities where such hearing can be conducted with the least cost to taxpayers. The sole reason why Petitioner requested a hearing in North Miami-Dade County is because Petitioner’s counsel’s office is in Fort Lauderdale, Broward County. That is not a proper reason for a North Dade hearing.
b. The hearing should take place within 40 to 70 days according to applicable Rules. Within those days, Respondent’s counsel is not available from October 25 to November 11, due to a confirmed trial schedule and due to pre-paid professional travel abroad.
IMPACT – Marginal – no contest to the Petition (at least as of this date). This document is asserting that the proceedings (if any are to be held) should be held in or near Palmetto Bay, Florida.

CLICK HERE to view Prior Related Posts.

Eugene Flinn 

Palmetto Bay attorney files Notice of Appearance. Update on Petition filed against the Village of Palmetto Bay by Yacht Club By Luxcom.

Just a short note. Counsel for Palmetto Bay filed a Notice of Appearance at 4:08 PM, on Tuesday, September 17, 2019. This filing occurred subsequent to my review and case update posted earlier in the day.

IMPACT: This is a procedural matter wherein the Village Attorney officially notified DOAH and all parties (Luxcom) as to who is representing the Village of Palmetto Bay in this matter. A Notice of Appearance (the action document pictured here) is merely a written document filed with the court to notify it and the opposing party, Luxcom, who is to receive notice of the proceedings.

PRIOR RELATED POSTS - CLICK HERE to view prior posts relating to this DOAH action filed against the Village of Palmetto Bay by the Petitioner, YACHT CLUB BY LUXCOM, LLC.

I will continue to keep you informed of events as they occur and assist in making sense of how this proceeding is moving forward.

Eugene Flinn

Tuesday, September 17, 2019

Update on Petition filed against the Village of Palmetto Bay by Yacht Club By Luxcom. Petitioner, YACHT CLUB BY LUXCOM, LLC (“Petitioner”), unilaterally filed its response to the DOAH Judge’s Initial Order dated September 6, 2019.

Update on the DOAH Administrative Court action. On September 13, 2019, the Petitioner, YACHT CLUB BY LUXCOM, LLC (“Petitioner”), unilaterally filed its response to the DOAH Judge’s Initial Order dated September 6, 2019. The petitioner advised the Court (in foot note 1, page 1 that  Petitioner attempted to file a Joint Response by emailing a proposed Joint Response on September 10, 2019 to the Village’s attorney Dexter Lehtinen, Esquire and to the Village’s Manager, Edward Silva. However, Petitioner’s counsel did not receive any response to the proposed Joint Response. Accordingly, Petitioner has filed its own Response to the Initial Order.)

IMPACT – not much. The response addresses procedural issues which include:

1. There are no related cases before DOAH;
2. Petitioner estimates that the time necessary to conduct the final hearing is two (2) to three (3) days;
3. The suggested geographic location for the final hearing is North Miami-Dade County;
4. Petitioner is available to conduct the hearing during the month of February, 2020 after discovery is completed. Proposed hearing dates are: February 19-21, 2020 or February 26-28, 2020.
5. Petitioner is unaware of any need for an ADA accommodation.

Obviously the Petitioner anticipates discovery (as indicated in #4, above).

There is no assurance that an actual hearing ever takes place, that the Petition is ever actually heard by a DOAH Judge.  The DOAH court is not obligated to hear this case.  There has been no challenge to the Jurisdiction of DOAH to hear this issue either filed (yet) by the Village of Palmetto Bay or any initial consideration of jurisdiction from the DOAH judge.

The DOAH Rules provide as follows (in part):

PART II HEARINGS INVOLVING DISPUTED ISSUES OF MATERIAL FACT

28-106.201 Initiation of Proceedings.
   * * * 
(3) Upon receipt of a petition involving disputed issues of material fact, the agency shall grant or deny the petition, and if granted shall, unless otherwise provided by law, refer the matter to the Division of Administrative Hearings with a request that an administrative law judge be assigned to conduct the hearing. The request shall be accompanied by a copy of the petition and a copy of the notice of agency action.

28-106.203 Answer.

A respondent may file an answer to the petition.
(above emphasis added, the respondent MAY, but is not REQUIRED to file an answer to the petition).

28-106.204 Motions.
* * *
(2) Unless otherwise provided by law, motions to dismiss the petition or request for hearing shall be filed no later than 20 days after assignment of the presiding officer, unless the motion is based upon a lack of jurisdiction or incurable errors in the petition.

See PRIOR RELATED POST of Friday, September 13, 2019, Update on Petition filed against the Village of Palmetto Bay by Yacht Club By Luxcom. Initial order rendered. There are links to earlier related posts. 

I will continue to be your source for information not being disseminated publicly.  This action before DOAH is a publicly noticed and open action, this is not a secret or privileged matter. It can be discussed in public. 

Note: Palmetto Bay officials have apparently chosen not to include any information relating to this action (or other recent actions) on the current Village Litigation page of the official village website (at least as of 4:00 PM, Tuesday, 9/17/2019). Posting would be for courtesy, at their own choice, as it is not required.

Opinions stated above are my own.
Eugene Flinn