Real Breaking News – 2:29 PM, Monday, January 13, 2020 - LUXCOM voluntarily dismisses the DOAH administrative action; gives notice of BERT J HARRIS claim potentially seeking over $21 million. Details including link to relevant documents.

Perhaps LUXCOM would rather face the current Village Attorney on a Bert J Harris claim than litigate against Dexter Lehtinen, Esq, before the ALJ later this month.

The dismissal simply states that LUXCOM has 

...opted to assert its legal rights against the Village, pursuant to the Bert J. Harris, Jr., Private Property Rights Protection Act as set forth in Fla. Stat. Sec 70.001 ...

As part of this document, LUXCOM served the Village of Palmetto Bay with the pre-suit claim and supporting appraisal pursuant to Section 70.001(4)(a) of the Bert Harris Act.

CLICK HERE to download and view the entire 63 page document (2 pages voluntarily dismissal)

There is a document (beginning page 6) entitled "AN APPRAISAL OF THE FORMER FPL CUTLER POWER PLANT SITE LOCATED AT THE NORTHEAST CORNER OF SW 67TH AVENUE AND SW 152ND AVENUE"(Hereafter simply "Appraisal")

LUXCOM appears to be alleging $21,760,000 in damages under Bert J Harris. The important allegation is contained in the Appraisal (Page two of appraisal, overall page eight of 63) that the Bert J Harris damages are projected at $21,760,000 – an excerpt follows:

Based upon the scope of the assignment, our investigation and analysis of the information contained within this report, as well as our general knowledge of real estate valuation procedures and market conditions, it is our opinion that the Retrospective Market Value of the Fee Simple Estate of the Subject Property, as an institutional use, as of July 29, 2019 was:

$34,000,000

It is also our opinion that the Retrospective Market Value of the Fee Simple Estate of the Subject Property, considering the land and zoning use to Estate Density Residential, as of July 30, 2019 was:

$12,240,000

Based on these two valuations, it is our opinion that the damages claim for the “Bert J. Harris, Jr., Private Property Rights Protection Act”, as of July 30, 2019 was:

$21,760,000

I need more time to review, so updates will follow. I want to get this information out for public discussion. This is an interesting development. We will see the reaction from the Village.  I look forward to a strong and spirited defense.

Another small bite update in the LUXCOM case. LUXCOM’S Motion for continuance GRANTED. The LUXCOM case has been rescheduled for final hearing on January 29 through 31, 2020, beginning at 9:00 a.m., at the Palmetto Bay Village Hall.

LUXCOM’S Motion for continuance was GRANTED on Wednesday, December 11, 2019. The LUXCOM case has been rescheduled for final hearing on January 29 through 31, 2020, beginning at 9:00 a.m., at the Palmetto Bay Village Hall.

CLICK HERE to view the motion of LUXCOM for this continuance.

CLICK HERE to view the response filed by the Village of Palmetto Bay.

CLICK HERE to view LUXCOM'S Reply in Further Support of Petitioner's Motion for Continuance & Re-Scheduling of Final Hearing for Thirty (30) Days

CLICK HERE to view the Order granting the continuance, rescheduling the final hearing to January 29 through 31, 2020, beginning at 9:00 a.m., at the Palmetto Bay Village Hall.

IMPACT: Those setting aside the December dates to watch the hearing now need to find other things to do and now must set aside January 29-31, 2020. I was waiting for the Pre Hearing Stipulation to be filing. The date for the filing will now be pushed back even later that the 12/12 date.

PRIOR RELATED POST - Small bite updates on the LUXCOM DOAH litigation. Waiting on the pretrial stip, due date moved to 12/12 and the trial beginning 12/18

Many other updates on this case are available on this blog, CLICK HERE.

Small bite updates on the LUXCOM DOAH litigation. Waiting on the pretrial stip, due date moved to 12/12 and the trial beginning 12/18

More litigation updates. The quick updates on the LUXCOM litigation currently pending before the Florida Division of Administrative Hearings (DOAH). Not much interesting here. Housekeeping issues. The interesting read will be the Pre Hearing Stipulation. The date for the filing has been moved from 12/8 to 12/12.

December 4: The motion filed by Palmetto Bay was granted (CLICK HERE for the prior related post - CLICK HERE to view the actual one-page order). Palmetto Bay shall be responsible for having a notary public in India with Mr. Mohammed Khan on the assigned hearing date to swear Mr. Mohammed Khan in as a witness and shall provide the requisite documentation for proof. Fla. Admin. Code R. 28-106.213(5)(b).

Palmetto Bay is also required to make all arrangements for a speaker telephone to be available at the final hearing.

IMPACT: Telephone testimony. Burden is on Palmetto Bay to make sure everything is properly set up and working if they want this testimony to go forward.

Why not teleconferencing? Not necessary. Testimony is allowed via deposition in many proceedings. Reading a deposition offers less insight into the witness you neither observe the witness live nor can the judge hear any inflection or hesitation in the voice of the witness. 

December 5: Both parties; LUXCOM and Palmetto Bay joined into an agreed motion asking the court to extend the time to submit the Pre-Hearing Stipulation from December 8, to December 12. The grounds include the 12/5 depo of Petitioner’s Expert Witness and the 12/6 deposition of Palmetto Bay’s Expert Witness. The parties point out that the issues, witnesses, and exhibits may be affected by the deposition of the expert witnesses. (CLICK HERE to read the joint motion).

December 5: The motion is granted. The Pre-hearing stipulation shall be filed with the FRANCINE M. FFOLKES, Administrative Law Judge, no later than December 12, 2019. (CLICK HERE to read this Order).

IMPACT: The pretrial stipulation will be of great interest. Tune in to review that filing. I expect it to be filed at end of day, due to the significance of this document, though it would be nice if filed early.

LUXCOM update – DOAH Judge grant’s LUXCOM’s last-minute motion to allow the filing of an Amended Petition.

Petitioner LUXCOM prevailed in its attempt to amend the petition.  

CLICK HERE to view the order GRANTING its motion.  You can CLICK HERE to view LUXCOM's REPLY in further support of Petitioner's Motion for Leave to Serve Amended Petition that was filed to address the issues raised in Palmetto Bay's response.

IMPACT: The final hearing for December 18 - 20 will be on the global issues raised in the Amended Petition.

LUXCOM update – Palmetto Bay filed a strong response, objecting to LUXCOM’s last-minute motion to allow the filing of an Amended Petition. 2 depositions of experts are set for Dec 5 & 6.

The parties are making final preparations for the December 18-20 Final Hearing set in this case.  First  the small bites, the deposition updates:

• 12/05/2019, 09:30 AM, the deposition, of Michele C. Mellgren, Petitioner’s Expert Witness, is set to be taken by attorneys for Palmetto Bay.
• 12/06/2019, 10:00 AM, the deposition of Mark Alvarez is set to be taken by the attorney for Petitioner, LUXCOM.

Now the big issue.  Palmetto Bay filed a Response in Opposition to Petitioner Motion for Leave to Serve Amended Petition(CLICK HERE to view online). 

For background, CLICK HERE, to view the PRIOR RELATED POST of November 25, 2019, LUXCOM filed a last-minute motion to allow the filing of an Amended Petition (total 647 pages).  

As I stated in that post, LUXCOM's right to file this amended petition is far from automatic. The judge has to approve this motion, to allow the filing of this amended petition. The Judge may DENY this motion and force LUXCOM to try this case on December 18th based solely upon the original petition.

The amended petition is based upon an expert hired by Luxcom, identified as Michele C. Mellgren, AICP, identified as a professional urban planner and the principal of The Mellgren Planning Group, Inc. You can review her report, identified as ‘Exhibit "Q-1”’ located on Page 564 of 647.

Palmetto Bay has objected, correctly pointing out the the court numerous issues as t why this proposed amendment is untimely and prejudicial to Palmetto Bay. I strongly recommend that time is taken to read this response in full. Palmetto Bay’s attorneys argue that this Amendment should be rejected by the judge for many good reasons:

First, the Amendment at this late stage is untimely. Palmetto Bay’s attorneys argue that the Petitioner should have known the alleged shortcomings of the Plan Amendment when filing its original Petition. 

Prejudice to Palmetto Bay. It is argued in the Response that any permission to allow amendment to the proceedings, after conclusion of written discovery, would be prejudicial to Palmetto Bay. 

Palmetto Bay’s attorneys argue that Petitioner’s Amendment “…should not be permitted to delay the final hearing, as any exigency is caused entirely by Petitioner’s strategic decision to spring the Expert Report and Amended Petition less than four weeks prior to final hearing.” (emphasis added).

Finally, as stated by Attorneys for Palmetto Bay:

The Expert Report is a sort of Trojan Horse, by which numerous new issues or new nuances of argument are to be introduced into the proceedings, without clear and concise statement of which portion of the Amended Petition governs the proceedings

IMPACT: one of two things will happen. First (and most likely) – the motion to amend will be DENIED by the court and the case will proceed to trial solely upon the original Petition filed August 28, 2019, due to the untimeliness of this last-minute Amendment, or (and much less likely, but possible), the motion will be granted, but a continuance will be required to prevent prejudice to Palmetto Bay.

Excerpt - document separated from the 647 page Amended Petition - "Q-1" - the report prepared by the expert hired by Luxcom, Michele C. Mellgren, AICP

In response to many requests, I created an except from the 647 pages of Amended Petition down to just the report which is contained in pages 565 - 586 of the Amended Petition.  This document is identified as "Q-1" - the report prepared by the expert hired by Luxcom, Michele C. Mellgren, AICP, identified as a professional urban planner and the principal of The Mellgren Planning Group, Inc. 

CLICK HERE to download and review exhibit "Q-1" (22 pages).

The motion for leave to amend was filed Monday, November 25, 2019. 

Also note: Ms. Mellgren's deposition is currently scheduled for December 5, 2019. This is NOT a public event.

LUXCOM filed a last-minute motion to allow the filing of an Amended Petition (total 647 pages)

Now it gets really interesting - and not necessarily in a good way.  I am still taking a deep dive in this filing, but I want to put this new fact out there for others to review and be aware of as it impacts this important issue.

Luxcom filed a last-minute motion to allow the filing of an Amended Petition (total 647 pages), filed at 3:14 PM, on Monday, November 25, 2019. (CLICK HERE) to view this DOAH filing. I refer to this filing as ‘last-minute’ as the final hearing is set for December 18 through 20, 2019, beginning at 9:00 a.m. We are a mere 3 weeks and two days prior to the expected start date of this Final Hearing.

The motion for leave to amend was filed Monday, November 25, 2019. The motion is only six (6) pages long, but the amended petition itself is 641 pages with exhibits for a total of 647 pages (including amended petition and exhibits). 

LUXCOM's right to file this amended petition is far from automatic. The judge has to approve this motion, to allow the filing of this amended petition. The Judge may DENY this motion and force LUXCOM to try this case on December 18th based solely upon the original petition.

The amended petition is based upon an expert hired by Luxcom, identified as Michele C. Mellgren, AICP, identified as a professional urban planner and the principal of The Mellgren Planning Group, Inc. You can review her report, identified as ‘Exhibit "Q-1”’ located on Page 564 of 647

Luxcom seeks leave to file and serve the attached Amended Petition which is the same as the original Petition except with respect to the addition of Section - "VI.B" which asserts the grounds and arguments relating to the Plan Amendment's non-compliance as set forth and explained in detail in the report of Luxom's expert - Michele Mellgren a copy of which report is directly incorporated into the Amended Petition and attached thereto as Exhibit "Q-1.”

Michele C. Mellgren, AICP, is a professional urban planner and the principal of The Mellgren Planning Group, Inc., which is a planning, zoning and land use consulting firm located in South Florida. Ms. Mellgren holds a Master’s Degree in Urban and Regional Planning from The George Washington University in Washington, D.C.; is certified by the American Institute of Certified Planners; and, has more than 30 years of experience in planning, zoning and land use issues. She has also qualified in both Federal and Circuit Courts as an expert in planning, zoning and land use matters. 

Through legal counsel for Yacht Club by Luxcom, LLC (Luxcom), Ms. Mellgren was retained to analyze the land use plan amendment (LUPA) initiated and adopted by the Village of Palmetto Bay, FL for the former Florida Power & Light Company (FPL) site presently owned by Luxcom. The purpose of this study is to analyze whether the LUPA is “in compliance” as the term is defined in Sec. 163.3184 F.S., which includes the regulatory requirements in Sec. 163.3177 F.S.

(The two paragraphs quoted above was taken verbatim from page 568 of 647).

There will be more to come at a later date. For now, we all can read up on this case.

LUXCOM files its response – responding as to phone v video testimony and meekly challenging the witness as well as the location of the hearing.

Obviously the LUXCOM lawyers fear the 'home field advantage' - This is a hearing before a neutral Judge, not a sporting event where the crowd pumps up the home team. Location for me has always been about transportation (love riding the Metrorail to the courthouse) and/or easy parking and access for me to meet and consult with the clients and witnesses who will be participating in the proceedings.

CLICK HERE to download (from the actual DOAH docket online) the PETITIONER’S RESPONSE TO RESPONDENT’S MOTION FOR TELEPHONIC APPEARANCE filed by LUXCOM.

This is an update to a PRIOR RELATED POST of Monday, November 18, 2019, LUXCOM litigation update: PALMETTO BAY, filed a Motion for Telephonic Appearance of Expert Witness Mohammed Khan who has relocated out of the Country.

The main points of LUXCOM's argument are:

First, Petitioner objects to phone testimony since it would not allow Petitioner, its counsel and the trier of fact in these proceedings - the Administrative Law Judge - to visually observe Mr. Kahn and his demeanor while testifying.  LUXCOM lawyers argue that everyone participating in the proceedings should have the ability to visually observe this witness and his demeanor. 

This was not unexpected and was discussed in the prior related post of Monday, 11/18.

Secondly, and somewhat awkward, this response serves as a backdoor renewal of the objection to the location of the hearing:
“On a final note, Petitioner previously objected to the current location of the final hearing – Respondent’s own facilities in the Village of Palmetto Bay.” LUXCOM ’renewed’ its objection, alleging that the Palmetto Bay Village Hall “… is anything but a neutral location and it should be moved to the Department Of Administrative Hearing’s video teleconferencing site in Miami which is clearly a neutral and fair location to both sides.” 

Again, I have never personally believed in the ‘home field’ advantage insofar as location of proceedings. There will be no fan advantage and I am sure that the LUXCOM attorneys will be able to maintain their concentration in the face of the hordes of Palmetto Bay home town spectators that they fear.  (So I ask my fellow Palmetto Bay residents to please leave your cowbells and foam fingers at home if you attend the December hearing live.)

On a serious note, there is a crack in the door on revisiting the location of hearing. The real issue is the ability to properly set up teleconferencing. The location of the hearing will turn on whether Palmetto Bay can properly accommodate video teleconferencing.

IMPACT: Expect video testimony and a change in location of the hearing if Palmetto Bay cannot properly accommodate video conferencing for Mr. Khan to testify from India.  I expect that Palmetto Bay will be able to accommodate video conferencing. 

CONTINUING SPECIAL NOTE: Palmetto Bay officials continue to neglect 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  2:00 PM, Monday, 11/25/2019). 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, casting shade on transparency as well as accessibility of these public records.

After all, if DOAH can post these (and many other) documents online, why can’t Palmetto Bay? Don't buy the "ADA" argument. DOAH/the Courts are under the same ADA requirements as any other government entity. There is no lack of ability for Palmetto Bay elected leaders, only a lack of will to make the records accessible.

LUXCOM litigation update: PALMETTO BAY, filed a Motion for Telephonic Appearance of Expert Witness Mohammed Khan who has relocated out of the Country.

Just a short update relating to the DOAH litigation: Defendant, PALMETTO BAY, filed a Motion for Telephonic Appearance of Expert Witness Mohammed Khan who has relocated to India.  (CLICK HERE) to view this motion posted online on the DOAH docket for this case.

Mohammed Khan is a traffic engineer that prepared the traffic concurrency analysis for the comprehensive plan amendment. His was reviewed by the Village Council in conjunction with the consideration and adoption of the comprehensive plan amendment that is the subject of this proceeding. 

IMPACT: Attorneys for Palmetto Bay have requested that Mr. Khan be permitted to appear telephonically at the final hearing in this matter, as well as any deposition requested by the Petitioner. Telephone appearances are often granted for good cause. This witness is certainly unavailable locally. This certainly appears to be good cause, even absent any assertion that Mohammed Khan has no plans to be in the State or even the United States at any time relevant to the ongoing proceedings. 

The motion fails to document any communication between the completing attorneys to try to work out or narrow the issues. 

WHAT TO EXPECT: I would expect this motion to be GRANTED and that LUXCOM’s only alternative would be to pay for travel and lodging related toMr. Khan attending proceedings locally (this witness would not be personally compelled to do so) OR LUXCOM could counter move with the Court or reach an agreement with Palmetto Bay to schedule any depositions or hearing testimony to take place via teleconferencing, Mr. Khan appearing live at an agreed to location in India (the most likely alternative).

CONTINUING SPECIAL NOTE: Palmetto Bay officials continue to neglect 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  8:00 AM, Monday, 11/18/2019). 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, casting shade on transparency as well as accessibility of these public records.

After all, if DOAH can post these (and many other) documents online, why can’t Palmetto Bay? Don't buy the "ADA" argument. DOAH/the Courts are under the same ADA requirements as any other government entity. There is no lack of ability for Palmetto Bay elected leaders, only a lack of will to make the records accessible.


Eugene Flinn

Update on LUXCOM litigation v. Palmetto Bay. Five (5) filings prior to noon, Tuesday, November 12, 2019. A very busy day so far.

Tuesday, November 12, 2019, has been a very busy day (as of 10:30 AM) for filings in the DOAH administrative action.  Five (5) filings before noon. Note - the filings were actually made on a Federal Holiday, Veterans Day, so the recorded, effective, date is November 12, 2019.

The following have been filed on the DOAH online docket at time of release of this blog update:

1. Respondents' Notice of Service of Answers to Interrogatories filed. *
2. Respondents' Notice of Service of Answers to Expert Interrogatories filed.* 
3. Response to First Request for Production of Documents filed.*
4. Village of Palmetto Bay's Response to Petitioner's Expert Witness Request for Production of Documents filed.*
5. Village of Palmetto Bay's Witness List filed.*
   
   CLICK separately on each document listed above to view it on the DOAH docket.

*(note - all documents were e-filed as of 8:00 AM, 11/11, a designated court holiday, so filing date is listed per Rule is as next day, 11/12/2019)

The Palmetto Bay Witness List: The Village listed and therefore reserves the right to call any of the witnesses listed on this list, "... and will further narrow the number of witnesses to be called as discovery is ongoing.":

• Mark Alvarez, Palmetto Bay Interim Planning and Zoning Director
• Mohammed Khan, Marlin Engineering
• Ed Silva, Village Manager
  
• Ray Eubanks, Plan Processing Administrator, Department of Economic Opportunity, Bureau of Comprehensive Planning
• Shereen Yee Fong, Transportation Planner IV, Department of Transportation, District Six
• Isabel Cosio Carballo, Executive Director, South Florida Regional Planning Council
• Terry Manning, AICP, Policy and Planning Analyst, Water Supply Coordination Unit, South Florida Water Management District
• Jerry Bell, AICP, Assistant Director for Planning, Miami-Dade County, Regulatory and Economic Resources
• Maria Valdes, Miami-Dade Water and Sewer Department (WASD), Chief, Comprehensive Planning & Water Supply Certification
• Christine Velazquez, Division of Environmental Resource Management (DERM)
• Wilbur Mayorga, P.E., Chief, Environmental Monitoring and Restoration Division

NEXT UP - It appears that discovery may move from production of documents and sworn to written answers to actual live depositions.

IMPACT: The law firm of LEHTINEN SCHULTZ RIEDI de la FUENTE, Attorneys for Palmetto Bay, appear to be loaded for bear. I like our chances in this DOAH action in December, 2019. It is a shame this firm has been excluded as continuing as Village Attorneys on General matters. I am not privy to the actual documents, the sworn answers or documents. More updates will follow as more information comes to light. The Final Hearing currently remains on schedule for December 18 through 20, 2019; beginning at 9:00 a.m., at Palmetto Bay Village Hall.

PRIOR POSTS RELATED to LUXCOM discovery:

See: September 26, 2019, Palmetto Bay responds with itshard-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.

   and

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.

CLICK HERE to view PRIOR POSTS related to LUXCOM.

CONTINUING SPECIAL NOTE: Palmetto Bay officials continue to neglect 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  11:00 AM, Tuesday, 11/12/2019). 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, casting shade on transparency as well as accessibility of these public records.

After all, if DOAH can post these (and many other) documents online, why can’t Palmetto Bay? Don't buy the "ADA" argument. DOAH/the Courts are under the same ADA requirements as any other government entity. There is no lack of ability for Palmetto Bay elected leaders, only a lack of will to make the records accessible.

Eugene Flinn

LUXCOM litigation update. Attorneys for Petitioner Luxcom, LLC, have agreed to Dismiss the Village Of Palmetto Bay Council as named Respondents

YACHT CLUB BY LUXCOM, LLC. Files a notice of voluntary dismissal as to the Village Council as defendant at 4:51 PM, Monday, October 28, 2019.  This is an admission that Village Attorney Dexter Lehtinen (and his firm) were correct in their limited Motion to dismiss filed as to Village of Palmetto Bay Council) arguing that the Village of Palmetto Bay Council is not a proper party to this proceeding. There are two parties listed as respondents to this action. The Village of Palmetto Bay as a municipal corporation as well as the Village of Palmetto Bay Council.

NOTICE OF VOLUNTARY DISMISSAL WITHOUT PREJUDICE

            Petitioner, YACHT CLUB BY LUXCOM, LLC, hereby files its Notice of Voluntary Dismissal Without Prejudice only as to Respondent, VILLAGE OF PALMETTO BAY COUNCIL, with each party to bear their own costs and attorneys’ fees

This is a partial victory, but the Village of Palmetto Bay remains a Respondent in this action that moves forward to the December 2019 hearing. 

This Council (and the taxpaying public) will miss Village Attorney Dexter Lehtinen's litigation skills. Let’s hope the Village Council finds a way to convince ‘retiring’ Village Attorney Dexter Lehtinen and his firm to carry on in the present litigated cases as runoff work.

See PRIOR RELATED POST of October 21, 2019, Monday, 10/21/2019: Motion to dismiss filed as to Village of Palmetto Bay Council. Update on Administrative action filed by Petitioner, YACHT CLUB BY LUXCOM, LLC. Once again, you can only read this information on this blog or on the official DOAH docket as there remains no update to the Palmetto Bay litigation page or in any of the email blasts of the village or our elected officials.

This notice was worked out between the parties (each side to bear their own costs and attorneys' fees). The Dismissal was filed in response to the motion filed last Monday, October 21, 2019, to dismiss the Petition as against the Village of Palmetto Bay Council arguing that the Village of Palmetto Bay Council is not a proper party to this proceeding. There are two parties listed as respondents to this action. The Village of Palmetto Bay as a municipal corporation as well as the Village of Palmetto Bay Council.

CLICK HERE to view this Notice of Voluntary Dismissal filed Monday, October 28, 2019. It is short and to the point.

More on the scapegoating - see a PRIOR RELATED POST of October 28, 2019, Village Council Chaos - Interaction with Village Attorney at a council meeting - Village Mayor & Council: You have been told repeatedly. You are the voting body. You have responsibilities of reading and knowing what you are voting on.

Monday, 10/21/2019: Motion to dismiss filed as to Village of Palmetto Bay Council. Update on Administrative action filed by Petitioner, YACHT CLUB BY LUXCOM, LLC.

Litigation update. You can only read this information here. There is no update to the Palmetto Bay litigation page or in any of the email blasts of the village or our elected officials.

UPDATE (Monday, October 21, 2019) Attorneys for the VILLAGE OF PALMETTO BAY COUNCIL have moved to dismiss the Petition as against the Village of Palmetto Bay Council arguing that the Village of Palmetto Bay Council is not a proper party to this proceeding. There are two parties listed as respondents to this action. The Village of Palmetto Bay as a municipal corporation as well as the Village of Palmetto Bay Council.

CLICK HERE to view this motion. It is short and to the point.

Council argument through this motion is that there is no authority in Chapter 163 or Chapter 120 for the inclusion of the Village of Palmetto Bay Council as a separate party in this proceeding pursuant to Florida Statute § 163.3184(5).

Opposing counsel attorneys for the Petitioner, Yacht Club by Luxcom,LLC, has seven (7) days to respond to this motion pursuant to DOAH Uniform Rules of Procedure, Rule 28-106.204(1).

POSSIBLE IMPACT: The Village of Palmetto Bay Council may be dismissed out as a party, but the claim against the Village, Village of Palmetto Bay, would remain intact. Whether a separate motion to dismiss is being prepared remains to be seen. I will update when I become advised of any filings. We will see if the Petitioner, Yacht Club by Luxcom,LLC, responds. The Administrative Law Judge may respond any time after the response is filed, or the time for filing expires (seven days).

CLICK HERE to view PRIOR RELATED POSTS

CONTINUING SPECIAL NOTE: Palmetto Bay officials continue to neglect 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  4:00 PM, Monday, 10/21/2019). 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? Don't buy the "ADA" argument. DOAH/the Courts are under the same ADA requirements as any other government entity. 

Eugene Flinn

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

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

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