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

Update on Petition filed against the Village of Palmetto Bay by Yacht Club By Luxcom. Initial order rendered.

I will update further on more interesting aspects of this DOAH Petition. Here is a procedural update for now:

Update on the Petition filed against the Village of Palmetto Bay by Yacht Club By Luxcom – seeking an administrative review of the rezoning of the property commonly referred to as the “FPL Cutler Plant” property, DOAH Case No.: 19-004612GM. Relevant updates are posted below:

• Case has been assigned to the Honorable FRANCINE M. FFOLKES, Administrative Law Judge, Division of Administrative Hearings (DOAH).  
• The initial order was rendered September 6, 2019, (this is a procedural order and provides no insight as to whether DOAH will accept jurisdiction and act on this petition. Village Manager Edward Silva is listed on the counsel page. He is the Village Manager, not Village Attorney.
• There has been no appearance of counsel filed on behalf of the Village of Palmetto Bay. No appearance may be required depending upon any action on this Petition.
• Note, "If all parties agree, this case may proceed as a summary hearing, without discovery, if requested by motion within 15 days from the date of this Order…." - as recited in numbered Paragraph 8 of this order. The 15 days will expire on September 21, 2019.
• CLICK THIS LINK to view this initial order of September 6, 2019 (posted on Google docs). This document is obviously available on the actual DOAH online docket, link is posted immediately below.
• CLICK HERE - DOAH main page - to view the official DOAH docket page (you will have to search the specific case or enter the case number - 19-004612GM - into the quick search box to view the actual DOAH case file).

For more information, see PRIOR RELATED POST of August 29, 2019, Petition filedagainst the Village of Palmetto Bay by Yacht Club By Luxcom – seeking an administrative review of the rezoning of the properly commonly referred to as the “FPL Cutler Plant” property.

EDITOR'S NOTE: The Order of September 6, 2019, is merely procedural and provides absolutely no insight into whether DOAH will accept jurisdiction or what, if any, orders or findings may result.

More will follow at a later date.

Eugene Flinn

Litigation update: YACHT CLUB BY LUXCOM, LLC vs. VILLAGE OF PALMETTO BAY, FLORIDA, Third District case number 3D19-1495

I have been fielding questions on whether my recent litigation updates relating to Palmetto Bay Court cases represent all of the litigation Palmetto Bay is significantly involved in. The answer is no, there are many other cases. Some are foreclosure or other similar actions where Palmetto Bay is a named party, but does not significantly participate in the litigation. There is at least one personal injury case filed against the Village, which is being defended through Defense counsel provided by the Village insurance carrier.  But the answer is yes, there are other significant Palmetto Bay cases being litigated that may be unknown to you.  I will update on several in some upcoming posts (but not consecutive posts as there are other topics to cover).

Palmetto Bay is currently embroiled in an Appeal pending before the Third District Court of Appeal. This appeal is of a dismissal of Circuit Court Case No.: 2019-011663-CA-31 (Order rendered 7/01/2019) that dismissed the complaint filed by LUXCOM.

The basis of the dismissal was stated in the final order of dismissal in that the Plaintiff, LUXCOM, has other remedies, that LUXCOM is "...fully able to raise and assert all of the claims asserted in this Complaint, after final agency action, through a Petition for Writ of Certiorari on a zoning map amendment, or through a Petition to the Division of Administrative Hearings on a comprehensive plan amendment."

LUXCOM filed its Petition with DOAH on August 28, 2019, DOAH Case No.: 19-004612GM. See PRIOR RELATED BLOG POST of Thursday, August 29, 2019, Petition filed against the Village of Palmetto Bay by Yacht Club By Luxcom – seeking an administrative review of the rezoning of the properly commonly referred to as the “FPL Cutler Plant” property. Link to 616 page petition provided. The Petition to the Division of Administrative Hearings has been discussed throughout this blog and PRIOR RELATED BLOG POSTS can be located through clicking the “DOAH” label (12 prior posts on this subject).

There is an online docket for the Third District Court of Appeal, as well as the Miami-Dade Circuit Court and DOAH - (just not one for Palmetto Bay). The Third District case number is 3D19-1495, styled as YACHT CLUB BY LUXCOM, LLC vs. VILLAGE OF PALMETTO BAY, FLORIDA.

There is not much to report on at the present time that relates to this appeal. The appeal was filed and paid. The record has been prepared and the parties agreed to an extension of time for the Appellant, LUXCOM, to file its initial brief – the date for filing appears to be December 8, 2019.

I would expect the next report on this litigation (APPEAL) will be December 9, 2019.

READING IT HERE - BECAUSE PALMETTO BAY REFUSES TO UPDATE THE "LITIGATION PAGE"-  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. 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

Petition filed against the Village of Palmetto Bay by Yacht Club By Luxcom – seeking an administrative review of the rezoning of the properly commonly referred to as the “FPL Cutler Plant” property. Link to 616 page petition provided.

Litigation has commenced before DOAH

Petition filed against the Village of Palmetto Bay by Yacht Club By Luxcom – seeking an administrative review of the rezoning of the properly commonly referred to as the “FPL Cutler Plant” property. Link to 616 page petition provided.

I have not had the opportunity to review, having a full day ahead serving clients. I am putting out the link for those who would like to review on their own.  I will review and will offer my observations very soon. 

This action is entitled “PETITION FOR A DETERMINATION THAT VILLAGE OF PALMETTO BAY ORDINANCE #2019-17 IS NOT “IN COMPLIANCE” PURSUANT TO FLA. STAT. §163.3184” and is filed before the Division of Administrative Hearings (DOAH). Petitioner, YACHT CLUB BY LUXCOM, LLC filed a 616 page Petition, pursuant to Fla. Stat. §120.569, §120.57, and §163.3184(5)(a).

DOAH Case No.: 19-004612GM.

This petition was filed with DOAH on August 28, 2019, and has been assigned DOAH Case No.: 19-004612GM. The case has yet to be assigned to a specific Administrative Law Judge.

LINK TO VIEW OR DOWNLOAD COPY OF THE PETITION:

CLICK HERE to view the complete petition. Palmetto Bay officials have not yet had the opportunity to respond. The Village has a statutory period to review and determine its course of action.

RELIEF SOUGHT:

As stated on numbered Page 38 of the Luxcom Petiton (page 39 of the document),

Petitioner, YACHT CLUB BY LUXCOM, LLC, seeks entry of a Recommended Order by the Administrative Law Judge, pursuant to Fla. Stat. §163.3184(5)(d), determining that the Plan Amendment adopted by Ordinance No. 2019-17 is not “in compliance” as defined in Fla. Stat. §163.3184(1)(b) and submission of such a Recommended Order by the Administrative Law Judge to the Administration Commission for final agency action and entry of a final order determining and declaring such non-compliance.

In English, YACHT CLUB BY LUXCOM seeks to overturn the zoning ordinance predicated upon the technical arguments raised within the Petition.
__________________________

UPDATES:

08/29/2019, 1:22 PM, Scott Zaslav filed his Notice of Appearance on behalf of the Petitioner, Yacht Club by Luxcom, LLC. at 1:22 PM on August 29, 2019.

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

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.

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

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

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

Brief Discovery Update on LUXCOM litigation v. Palmetto Bay. LUXCOM served discovery responses and objections on Friday, 11/08/2019. Status of case.

Petitioner, LUXCOM, filed its response and objections to Respondent’s, PALMETTO BAY, First Request For Production to Petitioner dated September 26, 2019 on Friday, 11/08/2019. CLICK HERE to view the complete 25 page document.

Also filed that same day, Friday, 11/08/2019, at 4:36 PM, was Petitioner, LUXCOM's, Notice of serving its Answers to the Respondent’s, VILLAGE OF PALMETTO BAY, First Set of Interrogatories propounded September 26, 2019. [CLICK HERE to view the Notice (no attached answers)]

Note that both were filed later than 30 days from service. There were no motions to compel discovery responses filed, so the only assumption is that either a short extension was negotiated between the attorneys or filed under threat of a motion to compel.

NEXT UP - The Village of Palmetto Bay will either accept the responses and objections or will see redress with the Judge to overrule the objections, compelling LUXCOM to make full discovery.  The Village responses to the discovery requests of LUXCOM filed 10/1/2019 are now due as well, absent an agreement to extend time (note that any response will likely include, both responses and objections similar to those raised by LUXCOM).

IMPACT: Unknown at this time as 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  10:00 AM, Monday, 11/11/2019). 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

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

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