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HomeMy WebLinkAbout10-13-2008 VC SP-M• • • Present: Absent: ROLL CALL MINUTES OF THE SPECIAL SESSION VILLAGE COUNCIL OF NORTH PALM BEACH, FLORIDA OCTOBER 13, 2008 William Manuel, Mayor Darryl Aubrey, President Pro Tem Dr. Edward M. Eissey, Councilman T.R. Hemacki, P.E., Councilman Melissa Teal, CMC, Village Clerk Jimmy Knight, Public Safety Director David B. Norris, Vice Mayor Mayor Manuel called the meeting to order at 6:45 p.m. All members of Council were present except Vice Mayor Norris. All members of staff were present. REQUEST FOR ATTORNEY -CLIENT SESSION Village Attomey Len Rubin requested advice from the Village Council in an attomey-client session concerning pending litigation styled S&H Foster's Inc. v. Village of North Palm Beach, Case No. 502008CA028708. ANNOUNCEMENT OF CLOSED ATTORNEY -CLIENT SESSION Mayor Manuel announced that at this time the Village Council would recess for the purpose of holding a closed Attorney -Client Session. Mayor Manuel announced all persons who would be in attendance at this Session. Mayor Manuel estimated that the Attorney -Client Session would last approximately thirty minutes. RECESS Mayor Manuel recessed the Special Session at 6:47 p.m The Special Session reconvened at 7:15 p.m., following the adjournment of the attorney -client session. All members of Council were present except Vice Mayor Norris. All members of staff were present. ADJOURNMENT There being no further business to come before the Council, the meeting adjourned at 7:15 p.m. Melissa Teal, CMC, Village Clerk Page 1 ORIGINAL VILLAGE OF NORTH PALM BEACH VILLAGE COUNCIL ATTORNEY/CLIENT SESSION RE: S&H FOSTER'S, INC. v. THE VILLAGE OF NORTH PALM BEACH CASE NO. 50 2008 CA 028708 MONDAY, OCTOBER 13, 2008 6:50 p.m. - 7:13 p.m. VILLAGE HALL CONFERENCE ROOM 501 U.S. HIGHWAY 1 NORTH PALM BEACH, FLORIDA Page 2 1 PRESENT: 2 3 VILLAGE COUNCIL: 4 5 WILLIAM MANUEL, Mayor 6 DARRYL AUBREY, Sc.D. President Pro Tem 7 EDWARD M. EISSEY, Ph.D., Councilman 8 T.R. HERNACKI, P.E., Councilman 1 1 9 10 CITY STAFF: 11 12 JIMMY KNIGHT, Village Manager 13 LEONARD RUBIN, Village Attorney 14 LEONARD G. RUBIN, P.A. 701 Northpoint Parkway 15 Suite 209 West Palm Beach, Florida 33407 16 (561) 721-1683 17 18 19 20 21 22 23 24 25 Page 1 The North Palm Beach Village Council 2 Attorney/Client Session was reported by PATTY McCOY, 3 Shorthand Reporter, at 501 U.S. Highway 1, North 4 Palm Beach, Florida, the meeting having begun at 5 6:50 p.m. on Monday, October 13, 2008 as follows: 6 PROCEEDINGS 7 VILLAGE ATTORNEY RUBIN: Okay, we can go 8 ahead and start. 9 Just by way of a little background and I 10 know that you -all got e-mails on this but I'm 11 just kind of starting from the beginning. 12 Foster's Pub filed a complaint against 13 the Village and they essentially asked for 14 three things: 15 The first one is they want a declaration 16 that they're entitled to grandfather status, 17 that somehow, not withstanding the fact that 18 our code requires alcohol sales and consumption 19 to end at 2:00 a.m, they should still be able 20 to operate until 5 a.m. 21 They also sought a temporary injunction, 22 which I'll get to in a second. 23 And they also threw in their complaint a 24 reservation of jurisdiction that should the 25 court decide that they're not grandfathered, Page 4 that they can seek damages against the Village for inverse condemnation. I'll talk about that later. So in response to their complaint, we filed a motion to dismiss saying basically (1) with respect to the declaratory judgment -- declaratory judgment is used if you're unsure as to your rights under some law, document, contract, et cetera. They've really not alleged anything that they're unsure of their rights under. They just claim they have a vested right or a property interest to these late night hours; but they can't point to any statute, rule, ordinance or even case that says their vested right trumps the Village's ordinance. So we moved to dismiss. We also moved to dismiss the temporary injunction saying that as a matter of law they're not entitled to the injunction. What happened was they then went before the judge, who is Judge French, who is, he is a PI attorney turned judge, and I don't know how familiar he is with local government and -- PRESIDENT PRO TEM DR. AUBREY: What's the Page 1 name again? 0 2 VILLAGE ATTORNEY RUBIN: His name is 3 Judge French. And he's relatively new and I 4 really think he has limited experience with 5 local government. 6 And not many of the judges do have a lot 7 of local government experience but I think he 8 had maybe less than others. 9 And at the first hearing which Christy to Goddeau attended he said, Well, I don't see why 11 I shouldn't grant this temporary injunction but 12 I'll have a hearing on it anyway. 13 So that's how we were going into this 14 hearing last Friday with this presumption that 15 he was going to grant this injunction. 16 So we went to the hearing on Friday and 17 my position or the Village's position is, Look, 18 there's a case that says we have the right to 19 regulate alcohol sales and consumption. 20 It was a case from Oakland Park years ago 21 where they changed the hours on existing clubs, 22 it went from five to two, and they said you're 23 allowed to do that. 24 There's cases that say that just because 25 you're going to suffer economic injury, which Page is what Foster's is saying, they're saying their late night business is the crux of their profit, that's where they're making their money, so they're going to suffer substantial injury. Well, there's cases that say that's not enough. Because they can get damages later on, if they're entitled to damages, that's not enough for injunction. Well, Mrs. Foster got up there and testified, and they had a couple bartenders testify basically to stuff that we have already heard: They're going to lose money; you know, the late night crowd is where they make the money, and if they're not open late night, they're going to have to fire people. And I made the legal argument that they're really not entitled to the injunction. And the judge ruled in their favor after deliberating for about a half hour. I'm not sure how much deliberation he actually did. But he basically said -- he made all these findings that I don't think were supported by the evidence. I don't think his ruling is -- I definitely don't think his Page 1 ruling is correct. 2 But what we're faced with right now is he 3 entered an order on Friday that basically said 4 the Village can't enforce that 2:00 a.m. 5 against Foster's Pub. 6 It's a temporary injunction though. So 7 it's only until he decides this issue of 8 grandfathering. So it's not a permanent 9 injunction; it's just temporary. to MAYOR X: How long is the temporary 11 injunction for? 12 VILLAGE ATTORNEY RUBIN: Well, it's until 13 he decides on the merits of the complaint. 14 So that's the issue. And I've been 15 talking to Jimmy about this and I needed to get 16 your advice and guidance. 17 You can appeal the temporary injunction. 18 It's a non -final appeal. We can appeal it to 19 the Fourth District Court of Appeal. It's a 20 quicker briefing schedule but it will still 21 take some time. 22 We have to wait to get the transcript, 23 which is probably going to be a week or so, and 24 then we have 15 days to file our brief. 25 Then they still have 20 days to file Page their brief. And then there's a reply brief. I was just telling Melissa, I worked there for three and a half years. And then they have a conference. So it's still a couple of, I think it's going to take a couple of months, even though that's a fast track up there because it could take years. I mean time really knows no -- they don't have a lot of time constraints, the appellate court. So we could pursue that avenue. And I think legally we are correct. I think legally the judge erred. I think he just -- they were sympathetic. They had an existing business. It's a bad economy. She was very sympathetic. And I believe that he believed, the judge, that what's the harm of letting them stay open while we resolve this underlying issue. That's my take on it. So our options are, we can appeal the temporary injunction. Our other option which I, in thinking about it over the weekend, he did indicate a willingness to move this along quickly, the Page 1 judge did on Friday. 2 We have a pending motion to dismiss; and 3 he said he would schedule that quickly, he 4 would fit it in sometime hopefully in the next 5 week, and then we would have to answer the 6 complaint and move to final hearing. 7 What we could do, and what I was thinking 8 might be a better course of action, is sort of 9 wait and see if we can in fact expedite this 10 final hearing along rather than spending the 11 money to do an appeal now. 12 I mean I suppose it's possible that we'll 13 have to appeal later if he decides adversely, 14 that maybe we should see if we can expedite it 15 along and then -- because he also wouldn't stay 16 his order, of course. 17 I mean I asked him to stay his order but 18 he wouldn't because the whole reason is he 19 thinks they should be staying open. 20 So we can either appeal now or we can 21 sort of try to expedite the final hearing on 22 the declaratory judgment, see if we can. 23 If it looks like it's going to drag on, 24 you have 30 days to file the appeal. So we 25 could still file the appeal on the temporary Page 10 1 injunction. 2 And also I was going to do a motion for 3 rehearing, which I think I might do regardless, 4 just because even if he denies it, at least it 5 will be in the record why the Village believes 6 he erred as a matter of law on all these 7 issues. 8 I just think it's a good thing to. 9 He also let them, the other problem was 10 he let them get into -- they never plead the 11 elements for temporary injunction. There's 12 four distinct elements. 13 He let them get into, well, they didn't 14 even get into other things but. he made all 15 these findings based on this memorandum they 16 filed on the day of. 17 It just seemed to me it was clear, at 18 least clear to me, that the judge really was 19 going out of his way to let them stay open, 20 felt like there was really -- that not 21 notwithstanding the fact that I did argue there 22 was harm to the Village, and that people would 23 be coming in from other municipalities and we 24 would be providing law enforcement, and it was 25 a strain on the Village's resources, he felt Page 11 like well, it' s be.en there forever, what's the difference was sort of his attitude towards the. whole issue. So I'm just throwing that out there to see -- I know Jimmy might have some strong feelings on this -- to see how you -all wanted to proceed or if you have any questions or thoughts. VILLAGE MANAGER KNIGHT: Mr. Mayor, if I may throw out my strong feeling. MAYOR MANUEL: Please. VILLAGE MANAGER KNIGHT: What I think is this sets a horrible precedence for usurping the authority of the elected body by the courts. Longstanding we have had an ordinance in place here in the Village identifying what the hours of operation for liquor establishments are, and the court cannot come in and just arbitrarily say, you know what, it's good for everybody else but it's not good for him. That's number one. Number two, personally I think that, based upon Len's account of the events, I think the judge, you know, called positional Page 12 1 hardening. He knew that he was going in that' 2 direction. 3 A11 indications you could go for a, we 4 can file for a rehearing but there's no 5 indication that he's going to change that 6 position. 7 I think that there really, truly needs to 8 be a finding of law, and I think the Fourth DCA 9 is going to give you the greatest chance of 10 doing that. 11 I think that they will (1) because 12 they're not going to take testimony. 13 They're going to look at it simply by the 14 law and the merits of the case, and I think you 15 let them rule and -- let them rule. It will go 16 back, as I understand, to the trial judge. 17 You're saying that it's non -binding 18 though? 19 VILLAGE ATTORNEY RUBIN: No, no. The 20 appeal would be binding. The judgment, if we 21 prevailed in the appellate court the injunction 22 would be lifted. 23 It just goes to that question that the 24 mayor asked, how long the injunction is going 25 to remain in place. And that's all dependent Page 13 upon how quickly we. can move the case along. VILLAGE MANAGER KNIGHT: I just think that in the end we might be pouring good money after bad by trying to do a rehearing or trying to argue the dismissal because obviously, you know, he didn't think there was any merit to it when we argued it on Friday. But I do think, and one of the things that, Mayor, you and I talked about, maybe the League of Cities would join in. Because this really is an attack on all municipal governments. And (2) I just want to digress for a moment. And this has nothing really to do with Foster's Pub. I mean it's much larger than that and I alluded to that in the e-mail. It's much larger than that. It just so happens that they're playing the card. But the reality is that I've had an opportunity to review the lease agreement for the Foster's Pub and there's a provision in there that they would comply in their lease, they would comply with the prevailing code of ordinances for whatever municipality might take them in an annexation. Page 14 COUNCILMAN DR. EISSEY: Did the judge get that information before he decided? VILLAGE ATTORNEY RUBIN: Yes. VILLAGE MANAGER KNIGHT: Now, I don't know if that would be legally binding but that's something that was provided for us from the property owners when we were going through the annexation. And just for the record, I think what needs to be noted here is we would have never, I'm assuming, we would have never proceeded with the annexation had we known that our codes were worth nothing. VILLAGE ATTORNEY RUBIN: And I did argue that to the judge at length. PRESIDENT PRO TEM DR. AUBREY: And? VILLAGE ATTORNEY RUBIN: And he was unmoved. VILLAGE MANAGER KNIGHT: I mean in theory -- MAYOR MANUEL: I'll ask a question, if I may, Jim? Len, did you present the lease to him also? VILLAGE ATTORNEY RUBIN: Yes, the lease Page 15 1 is an exhibit. The lease does s.ay that they 2 will comply with whatever laws, regulations, 3 ordinances that are in effect. 4 And that's the thing, that's what is so 5 frustrating about this because everything 6 points to them having to comply. 7 The annexation statute says basically 8 upon the effective date of annexation they are 9 subject to all laws of that municipality. 10 Then you have the lease saying that they 11 must comply with all laws and rules and 12 regulations that are in effect. 13 Then you have the case law, you have a 14 statute that authorizes municipalities to 15 regulate the hours for the sale and consumption 16 of alcohol. 17 And then you have a case saying basically 18 the allegation of a vested right is not enough 19 to enjoin enforcement of an ordinance when we 20 are statutorily permitted to regulate. 21 So it was most frustrating. And also he 22 made these findings in his injunction order 23 like they were going to lose goodwill. 24 And that sort of came out of nowhere 25 because how are they losing goodwill? They're Page 16 just losing hours Of. business. It made no sense. But he was looking for a way somehow to allow this to continue in the interim period. MAYOR MANUEL: If I may, Len? VILLAGE ATTORNEY RUBIN: Yes, sir. MAYOR MANUEL: Are there any means for the Village to be able to recoup their costs of appeal? VILLAGE ATTORNEY RUBIN: No, there's no attorney's fee provision. So basically we're going to have to pay our own fees and costs. I mean they will have to pay fees and costs too. I mean you do require them to expend some money to defend this as well. MAYOR MANUEL: And as Jimmy mentioned earlier, would it be beneficial for the council to notify the league? VILLAGE ATTORNEY RUBIN: We could, and I could reach out to Trela and I could see what assistance they could offer. I'd be more than happy to do that. MAYOR MANUEL: All right, because this is clearly an assault on home rule. VILLAGE ATTORNEY RUBIN: It's a home rule issue, I agree. I agree. Page 17 COUNCILMAN DR. EISSEY: I don't know how,. and I'm not an attorney, I don't know how in the world the Fourth District could possibly even endorse anything that they wanted with all of those things that you just pointed out very well. PRESIDENT PRO TEM DR. AUBREY: Four strikes. COUNCILMAN DR. EISSEY: Yes. VILLAGE MANAGER KNIGHT: And I think when I talked to Len preparing for this meeting, I believe on the merits of the law we will prevail. The unfortunate part is in the interim, you know, we're having to provide a level of service different to that establishment than any other establishment here in the village. MAYOR MANUEL: And you are keeping a close record of what those services are? VILLAGE MANAGER KNIGHT: We are. MAYOR MANUEL: My other question is too, Len. VILLAGE ATTORNEY RUBIN: Yes, sir. MAYOR MANUEL: If the Village incurs "X" amount of dollars in expenses, could the 1 2 3 4 5 Page 18 Mercedes dealership be responsible for that in any way, shape or fashion? VILLAGE ATTORNEY RUBIN: I don't believe there's a mechanism. I think they should be responsible ethically and morally but I don't believe legally we can require them to pay for 7 it. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I haven't spoken to Gary Brandenburg about this. I don't know how much he's aware of or he's not aware of. I mean he sort of placed us in this position and that's the irony. The irony is when they were before the council he's like well, I'll buy the liability and, you know, we're all thinking he's looking to the landlord, because the landlord is the one that changed the playing field, the property owner changed the playing field on them. And I had said, Judge, we didn't change the playing field. We annexed them with the understanding that if there was any liability, that liability was being bought by the property owner, and to their own admission, before the village council. And as Jimmy said that the village Page 19 council never would have agreed to this if we thought that somehow this would subvert our ability to enforce our own ordinances, we would not have annexed the property. And I suppose the annexation, and we did mention that, is something that we could pursue at some future time, if in the event this doesn't work out favorably. MAYOR MANUEL: So you have presented us with two options here. One is to go and to wait. VILLAGE ATTORNEY RUBIN: One is to wait and see if we can expedite the final resolution of it. And if it doesn't look like it's going to, then appeal the temporary injunction or appeal the temporary injunction now. PRESIDENT PRO TEM DR. AUBREY: Which is fastest? VILLAGE ATTORNEY RUBIN: Well, if we appeal it now it would be faster; but if we can, I just don't know how quickly we can advance this on the docket. I think it's, you know, maybe a couple of months. But it's going to take a couple of 1 2 3 4 5 6 7 8 9 10 11 12 13 14" 15 16 17 18 19 20 21 Page 20 months to go through the appeal process. Although I think if we prevail on the appeal and he has not yet decided the underlying, I think our position is much better because once -- if the court, as I hope they will, the Fourth District, recognizes our ability to regulate the sale and consumption of alcohol, and that's a statutorily recognized right that we have, I think then it puts Foster's Pub in a much more difficult position. VILLAGE MANAGER KNIGHT: Mayor, can I ask one thing because I just have an idea here and I don't know if it's even legally permissible? But can the property owner enforce their lease agreement? COUNCILMAN HERNACKI: That was my question. VILLAGE MANAGER KNIGHT: And they're in violation of their lease agreement. Why can't they enforce their lease agreement? VILLAGE ATTORNEY RUBIN: Well, they could 22 enforce. They could find Foster's in violation 23 of the lease agreement. 24 VILLAGE MANAGER KNIGHT: Because you know 25 what they want to do here, I mean they've used Page 21 the Village as a pawn in order to vacate the 2 property; and here it's come back, you know, 3 360 back on the Village. 4 MAYOR MANUEL: Did you want to ask? 5 COUNCILMAN HERNACKI: I have a few 6 questions. One of my questions is whether the 7 land owner is willing to file a breach of lease 8 agreement against the lessee, the lessor of the 9 property because it clearly says, in my 10 opinion, that they're in some form of breach. 11 But then again a judge may rule the same 12 way, Well, no they're just doing their 13 constitutional right of saying we have a 14 disagreement and filing for resolution through 15 the court, which I think you're just going to 16 muddy the water. 17 On a rehearing of the temporary 18 injunction, what's the cost and the time factor 19 if the judge is going to hear you? 20 VILLAGE ATTORNEY RUBIN: That's pretty 21 minimal. I've already sort of outlined that in 22 my -- I don't think that would be any sig -- 23 the judge does not have to grant a hearing on 24 that. That's totally up to the judge. 25 COUNCILMAN HERNACKI: Right. Page 22 1 2 3 not. I don't know if he's going to. So that's 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 VILLAGE ATTORNEY RUBIN: You just file it. If he grants a hearing, he might, he might not a huge time or expense. COUNCILMAN HERNACKI: Going through the appeal process, you said a couple of months for appealing the temporary injunction and I think I saw a memo, I don't remember, around 7K? VILLAGE ATTORNEY RUBIN: That's just an estimate, yes. And I don't think -- the issues are not complicated. It's not a complicated appeal. PRESIDENT PRO TEM DR. AUBREY: What will it cost Foster's? VILLAGE ATTORNEY RUBIN: Well, it will cost -- I don't know. It will probably cost them a lot more than you because, I mean, they pay a lot more per hour. COUNCILMAN HERNACKI: And then the actual case, you said a couple of months, which happens in parallel with this appeal process because the case continues on. VILLAGE ATTORNEY RUBIN: Right, the actual case continues on. There's no stay of the actual case, so it does continue on. Page 23 COUNCILMAN HERNACKI: So what does the actual case cost? VILLAGE ATTORNEY RUBIN: Don't know yet. It depends on if there's going to be a lot -- I don't believe there's going to be a lot of discovery. I'll have to get back to you on the estimate of that. I haven't really figured out how -- I don't know what the judge is anticipating, whether he's going to want us to brief it or whether he -- the problem is there's not much testimony to take. I think any testimony he wants to take he already took. And I don't think that established anything. But what else is anyone going to testify to? It's really a legal issue. COUNCILMAN DR. EISSEY: How can we get him to recuse himself? VILLAGE ATTORNEY RUBIN: Who, the judge? COUNCILMAN DR. EISSEY: The judge. VILLAGE ATTORNEY RUBIN: I don't know. That's easier said than done. COUNCILMAN HERNACKI: My last, probably last question until we get more questions from Page 24 other people, VILLAGE ATTORNEY RUBIN: Sure. COUNCILMAN HERNACKI: Having been in one of these situations before, what do you think opposing counsel -- do you think he's just trying to, in laymen's term, milk it out as long as possible? VILLAGE ATTORNEY RUBIN: What I believe he wants is he wants us to come to some sort of settlement in this case. And the judge even said that to me, Well, isn't there some middle position; can't you let them stay open for a certain amount of time? I mean Foster's knows at the end of their lease, whatever is left of this term, they're done and they're gone. But the judge is -- I think Dave Gorman, who is the attorney for Foster's, he's just posturing to get us to agree to some sort of period of time in which they can operate. MAYOR MANUEL: That lease is what, six years? VILLAGE MANAGER KNIGHT: Seven years. VILLAGE ATTORNEY RUBIN: Seven. Page 25 VILLAGE MANAGER KNIGHT: Mr. Gorman will never admit this but I can tell you, we had this exact conversation prior to the annexation going through, when I was trying to help him through the process, because clearly the Village had very little to gain in this. And we posed the question of does he have grounds for an injunction until he and the property owner could resolve the issue. And Mr. Gorman at that time says I have no legal standing for an injunction. And yet, you know what? He threw it against the wall, it stuck, and here we are. One thing to expound upon what Mr. Hernacki said is if we go forward with the appeal, we can still go forward with the other process. VILLAGE ATTORNEY RUBIN: It still does go forward, correct? COUNCILMAN HERNACKI: My only question is, you know, some of your legal brethren will do everything they can to, you know, if he has seven years remaining, he'll take five years before we ever get to a judge on the main issue. Page 26 VILLAGE ATTORNEY RUBIN: Well, I mean he could try. And you're right, they -- I don't know if he will but he could -- I mean the judge did give some indication that he would move it along; but you're right, he could really be obstinate and try to throw up roadblocks and obstacles and keep this case just dragging because the longer it drags on, the longer -- COUNCILMAN HERNACKI: As long as he has a temporary injunction, he can keep operating as long as he wants to, as long as we don't appeal it. VILLAGE ATTORNEY RUBIN: That is correct. VILLAGE MANAGER KNIGHT: And the one fear I have from an enforcement standpoint is I don't think we're going to get called for service there. I just think they won't call because the last thing they want to do is call law enforcement. You know, we saw the CAD report from the sheriff's office. But now that they know that we're sitting back and watching it, we just won't get the calls until they're, you know, Page 27 exacerbated to a point of .... COUNCILMAN HERNACKI: Dangerous. PRESIDENT PRO TEM DR. AUBREY: They have to carry the bodies out. VILLAGE MANAGER KNIGHT: We just won't get the call. MAYOR MANUEL: So basically let's see if we can get to the meat of this thing. We will go forward with the case now as it is, but you're asking whether or not we want to appeal. VILLAGE ATTORNEY RUBIN: Whether you want to appeal the temporary injunction, that's really what I need the answer to. MAYOR MANUEL: In my own personal opinion I think we need to be as aggressive as possible. That's my opinion. I don't know what the rest of the council thinks. I think we need to be as aggressive as possible. I think you need to contact the league and have the league involved with this. They will give us support in this because it is a home rule issue. And I would look for damages at anyplace that is possible for the Village to regain it. Page 28 1 I don't know if there is any. You need 2 to talk to Mr. Bradenburg, you need to consult 3 with them. And that's my opinion. 4 COUNCILMAN DR. EISSEY: I support the 5 mayor's opinion. 6 PRESIDENT PRO TEM DR. AUBREY: Me too. 7 Make it as expensive as possible for Foster's 8 along the way. 9 COUNCILMAN HERNACKI: Yep. 10 VILLAGE ATTORNEY RUBIN: All right. 11 VILLAGE MANAGER KNIGHT: There is one 12 other option and Len kind of alluded to it, and 13 just wanted to put it on the table, and you. can 14 either throw it off or embrace it. 15 There are provisions in statute that you 16 can de -annex property. Just throwing it out 17 there. It is an option. It may cost you 18 $7,000 to do it. 19 PRESIDENT PRO TEM DR. AUBREY: Well, the 20 thing is we can do that any time. 21 VILLAGE ATTORNEY RUBIN: Well, yes. 22 There are statutory criteria though. 23 I was thinking about that on my drive 24 over here, as a matter of fact. 25 And I think our argument is that in Page 29 starting back when we first were talking about the annexation we were determining whether we could look at the different criteria in the level of service demands; and I think that we say we're de -annexing because we believe that the level of service demands would be this because we could enforce our ordinance; and then if it's not, then the circumstances are not as we anticipated, so it didn't meet the criteria, so you never would have annexed and de -annexed. Now, that does leave us in a situation with the property owner too because one of the reasons they were pushing that annexation is because they had off -site parking from the Mercedes dealership that was contingent upon the annexation of Liveoak Plaza. So it's sort of a, you know . MAYOR MANUEL: I mean that sounds to me like a great tool to use when you're talking to him. VILLAGE ATTORNEY RUBIN: Right. I could say to Bradenburg, you know, Look, we'll just de -annex. MAYOR MANUEL: We're considering it. Page 30 VILLAGE MANAGER KNIGHT: At the same time we can point to the lease agreement and see if maybe they can apply some, some -- COUNCILMAN HERNACKI: Weight? VILLAGE MANAGER KNIGHT: -- weight on the lease. PRESIDENT PRO TEM DR. AUBREY: Yes. If you can get an action going in that direction as well, that puts more pressure and costs on them. VILLAGE ATTORNEY RUBIN: Right, sort of on all fronts. VILLAGE MANAGER KNIGHT: Could the same judge rule on that or likely not? VILLAGE ATTORNEY RUBIN: Likely not. It will probably be filed as a, it's a different case. It's a different matter entirely really. It's a contractual matter between the two parties. MAYOR MANUEL: I think you have a consensus. VILLAGE ATTORNEY RUBIN: Okay. Fair enough. That's what I was looking for. VILLAGE MANAGER KNIGHT: Anything else? VILLAGE ATTORNEY RUBIN: That's it. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 '20 21 22 23 24 Page Thank you very much, 'gentlemen. MAYOR MANUEL: We will adjourn. (Thereupon, at 7:13 p.m. the attorney/client session was concluded. 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page C E R T IF I C A T E THE STATE OF FLORIDA COUNTY OF PALM BEACH I, Patty McCoy, Shorthand Reporter, certify that I was authorized to and did stenographically report the foregoing proceedings and that the transcript is a true record. Dated this 14th day of October, 2008. C>Nc— Patty McCoy, Shorthan porter