10-13-2008 VC SP-MMINUTES OF THE SPECIAL SESSION
VILLAGE COUNCIL OF NORTH PALM BEACH, FLORIDA
• OCTOBER 13, 2008
Present: William Manuel, Mayor
Darryl Aubrey, President Pro Tem
Dr. Edwazd M. Eissey, Councilman
T.R. Hemacki, P.E., Councilman
Melissa Teal, CMC, Village Clerk
Jimmy Knight, Public Safety Director
Absent: David B. Norris, Vice Mayor
ROLL CALL
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 attorney-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 Attomey-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 staffwere present.
ADJOURNMENT
There being no further business to come before the Council, the meeting adjourned at 7:15 p.m.
~~~~a . ,~~~~
Melissa Teal, CMC, Village Clerk
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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
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 (5 6 1) 721-1683
Page 3 ,
4
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 P R 0 C E E D I N G S
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
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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
1 that they can seek damages against the Village
2 for inverse condemnation.
3 I'll talk about that later.
4 So in response to their complaint, we
5 filed a motion to dismiss saying basically (1)
6 with respect to the declaratory judgment --
7 declaratory judgment is used if you're unsure
8 as to your rights under some law, document,
9 contract, et cetera.
10 They've really not alleged anything that
11 they're unsure of their rights under. They
12 just claim they have a vested right or a
13 property interest to these late night hours;
14 but they can't point to any statute, rule,
15 ordinance or even case that says their vested
16 right trumps the Village's ordinance.
17 So we moved to dismiss. We also moved to
18 dismiss the temporary injunction saying that as
19 a matter of law they're not entitled to the
20 injunction.
21 What happened was they then went before
22 the judge, who is Judge French, who is, he is a
23 PI attorney turned judge, and I don't know how
24 familiar he is with local government and --
25 PRESIDENT PRO TEM DR. AUBREY: What's the
Page 5
1
name again?
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 r
8
had maybe less than others.
9
And at the first hearing which Christy
10
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. r
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 6
1 is what.Foster's is saying, they're saying
2 their late night business is the crux of their
3 profit, that's where they're making their
4 money, so they're going to suffer substantial
5 injury.
6 Well, there's cases that say that's not
enough. Because they can get damages later on,
8 if they're entitled to damages, that's not
9 enough for injunction.
r.
10 Well, Mrs. Foster got up there and
11 testified, and they had a couple bartenders
12 testify basically to stuff that we have already
13=
heard: They're going to lose money; you know,
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14 the late night crowd is where they make the y
15 money, and if they're not open late night, >:
16 they're going to have to fire people.
17 And I made the legal argument that
18 they're really not entitled to the injunction.
19 And the judge ruled in their favor after
20 deliberating for about a half hour. I'm not
21 sure how much deliberation he actually did.
22 But he basically said -- he made all
23 these findings that I don't think were
24 supported by the evidence. I don't think his
25 ruling is -- I definitely don't think his
Page 7
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.
10 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 8
1 .their brief. And then there's a reply brief.
2 I was just telling Melissa, I worked
3 there for three and a half years.
4 And then they have a conference. So it's {
5 still a couple of, I think it's going to take a
6 couple of months, even though that's a fast
7 track up there because it could take years.
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}
8 I mean time really knows no -- they don't
9 have a lot of time constraints, the appellate
10 court.
11 So we could pursue that avenue. And I
12
think legally we are correct. I think legally
13 the judge erred.
14 I think he just -- they were sympathetic.
15 They had an existing business. It's a bad
16 economy. She was very sympathetic.
17 And I believe that he believed, the
18 judge, that what's the harm of letting them
19 stay open while we resolve this underlying
20
issue. That's my take on it.
21 So our options are, we can appeal the
22 temporary injunction.
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23 Our other option which I, in thinking
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24 about it over the weekend, he did indicate a
25 willingness to move this along quickly, the
Page 9 .
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 3
8
might be a better course of action, is sort of y
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. ,s
12
I mean I suppose it's possible that we'll 3
13
3
have to appeal later if he decides adversely,
s
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 1.1
1 like well, it's been there forever, what's the
2 difference was sort of his attitude towards the.'-'<
3 whole issue.
F
4 So I'm just throwing that out there to.
5 see -- I know Jimmy might have some strong
{
6 feelings on this -- to see how you -all wanted
7 to proceed or if you have any questions or
8 thoughts.
L.
9
VILLAGE MANAGER KNIGHT: Mr. Mayor, if I
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10 may throw out my strong feeling.
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11 MAYOR MANUEL: Please.
12 VILLAGE MANAGER KNIGHT: What I think is
13 this sets a horrible precedence for usurping
14 the authority of the elected body by the
15 courts.
f
16 Longstanding we have had an ordinance in
17 place here in the Village identifying what the
18 hours of operation for liquor establishments
19 are, and the court cannot come in and just
20 arbitrarily say, you know what, it's good for
21 everybody else but it's not good for him.
22 That's number one.
23 Number two, personally I think that,
24 based upon Len's account of the events, I think
25 the judge, you know, called positional
Page 12
1 hardening. He.knew that he was going in that,
2 direction.
5
3 All 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 s
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
1 upon how quickly we can move the case along.
2 VILLAGE MANAGER KNIGHT: I just think
3 that in the end we might be pouring good money
4 after bad by trying to do a rehearing or trying
5 to argue the dismissal because obviously, you
6 know, he didn't think there was any merit to it
7 when we argued it on Friday.
8 But I do think, and one of the things
9 that, Mayor, you and I talked about, maybe the
10 League of Cities would join in. Because this
11 really is an attack on all municipal
12 governments.
13 And (2 ) I just want to digress for a
14 moment. And this has nothing really to do with
15 Foster's Pub. I mean it's much larger than
r
16 that and I alluded to that in the e-mail. It's
17
much larger than that. It just so happens that
18 they're playing the card.
19 But the reality is that I've had an
20 opportunity to review the lease agreement for
21 the Foster's Pub and there's a provision in
22 there that they would comply in their lease,
23 they would comply with the prevailing code of
i
24 ordinances for whatever municipality might take
25 them in an annexation.
Page 14
1 COUNCILMAN DR. EISSEY: Did the judge get
2 that information before he decided?
3 VILLAGE ATTORNEY RUBIN: Yes.
4 VILLAGE MANAGER KNIGHT: Now, I don't
5 know if that would be legally binding but
6 that's something that was provided for us from
7 the property owners when we were going through
8 the annexation.
9 And just for the record, I think what
to needs to be noted here is we would have never,
11 I'm assuming, we would have never proceeded
12 with the annexation had we known that our codes
13 were worth nothing.
14 VILLAGE ATTORNEY RUBIN: And I did argue
15 that to the judge at length.
16 PRESIDENT PRO TEM DR. AUBREY: And?
17 VILLAGE ATTORNEY RUBIN: And he was
18 unmoved.
19 VILLAGE MANAGER KNIGHT: I mean in
20 theory --
21 MAYOR MANUEL: I'll ask a question, if I
22 may, Jim?
23 Len, did you present the lease to him
24 also?
25 VILLAGE ATTORNEY RUBIN: Yes, the lease
Page 15
1 is an exhibit. The -lease does say 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 a
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
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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
1 just losing hours of -business. It made no
2 sense. But he was looking for away somehow to
3 allow this to continue in the interim period.
4 MAYOR MANUEL: If I may, Len?
5 VILLAGE ATTORNEY RUBIN: Yes, sir.
6 MAYOR MANUEL: Are there any means for
7 the Village to be able to recoup their costs of
8 appeal? 3
9 VILLAGE ATTORNEY RUBIN: No, there's no
10 attorney's fee provision. So basically we're
11 going to have to pay our own fees and costs.
12 I mean they will have to pay fees and
13 costs too. I mean you do require them to
14 expend some money to defend this as well. 32
15 MAYOR MANUEL: And as Jimmy mentioned
i
16 earlier, would it be beneficial for the council
17 to notify the league?
18 VILLAGE ATTORNEY RUBIN: We could, and I
}
19 could reach out to Trela and I could see what
20 assistance they could offer. I'd be more than
21 happy to do that.
22 MAYOR MANUEL: All right, because this is
23 clearly an assault on home rule.
24 VILLAGE ATTORNEY RUBIN: It's a home rule
25 issue, I agree. I agree.
Page 17
1
COUNCILMAN DR. EISSEY: I don't know how, _=
2
and I'm not an attorney, I don't know how in t
3
the world the Fourth District could possibly
4
even endorse anything that they wanted with all
5
of those things that you just pointed out very
t
6
well.
7
PRESIDENT PRO TEM DR. AUBREY: Four
8
strikes.
9
COUNCILMAN DR. EISSEY: Yes.
10
VILLAGE MANAGER KNIGHT: And I think when r
11
I talked to Len preparing for this meeting, I
12
believe on the merits of the law we will
13
prevail.
14
The unfortunate part is in the interim,
15
you know, we're having to provide a level of
16
service different to that establishment than
17
S
any other establishment here in the village.
F
18
MAYOR MANUEL: And you are keeping a
19
close record of what those services are?
5
20
VILLAGE MANAGER KNIGHT: We are.
21
MAYOR MANUEL: My other question is too,
22
f'
Len.
23
VILLAGE ATTORNEY RUBIN: Yes, sir. o-
24
MAYOR MANUEL: If the Village incurs "X"
25
amount of dollars in expenses, could the
8 I haven't spoken to Gary Brandenburg
9 about this. I don't know how much he's aware
10 of or he's not aware of.
11 I mean he sort of placed us in this
12 position and that's the irony. The irony is
13 when they were before the council he's like
14 well, I'll buy the liability and, you know,
15 we're all thinking he's looking to the
16 landlord, because the landlord is the one that
17 changed the playing field, the property owner
18 changed the playing field on them.
19 And I had said, Judge, we didn't change
20 the playing field. We annexed them with the
21 understanding that if there was any liability,
22 that liability was being bought by the property
23 owner, and to their own admission, before the
24 village council.
25 And as Jimmy said that the village
Page 18
1 Mercedes dealership be
responsible for
that in
2 any way, shape or fashion?
3 VILLAGE ATTORNEY
RUBIN: I don't
believe
4 there's a mechanism.
I think they should
be
5 responsible ethically
and morally but
I don't
6 believe legally we can
require them to
pay for
7 it.
8 I haven't spoken to Gary Brandenburg
9 about this. I don't know how much he's aware
10 of or he's not aware of.
11 I mean he sort of placed us in this
12 position and that's the irony. The irony is
13 when they were before the council he's like
14 well, I'll buy the liability and, you know,
15 we're all thinking he's looking to the
16 landlord, because the landlord is the one that
17 changed the playing field, the property owner
18 changed the playing field on them.
19 And I had said, Judge, we didn't change
20 the playing field. We annexed them with the
21 understanding that if there was any liability,
22 that liability was being bought by the property
23 owner, and to their own admission, before the
24 village council.
25 And as Jimmy said that the village
12 VILLAGE ATTORNEY RUBIN: One is to wait
13 and see if we can expedite the final resolution
14 of it.
15 And if it doesn't look like it's going
16 to, then appeal the temporary injunction or
17 appeal the temporary injunction now.
18 PRESIDENT PRO TEM DR. AUBREY: Which is
19 fastest?
20 VILLAGE ATTORNEY RUBIN: Well, if we
21 appeal it now it would be faster; but if we
22 can, I just don't know how quickly we can
23 advance this on the docket.
24 I think it's, you know, maybe a couple of
25 months. But it's going to take a couple of
Page 19
1
council
never would have agreed to this if we
2
thought
that somehow this would subvert our
3
ability
to enforce our own ordinances, we would
4
not have
annexed the property.
5
And
I suppose the annexation, and we did
6
mention
that, is something that we could pursue
7
at some
future time, if in the event this
8
doesn't
work out favorably.
9
MAYOR
MANUEL: So you have presented us
10
with two
options here. One is to go and to
11
wait.
12 VILLAGE ATTORNEY RUBIN: One is to wait
13 and see if we can expedite the final resolution
14 of it.
15 And if it doesn't look like it's going
16 to, then appeal the temporary injunction or
17 appeal the temporary injunction now.
18 PRESIDENT PRO TEM DR. AUBREY: Which is
19 fastest?
20 VILLAGE ATTORNEY RUBIN: Well, if we
21 appeal it now it would be faster; but if we
22 can, I just don't know how quickly we can
23 advance this on the docket.
24 I think it's, you know, maybe a couple of
25 months. But it's going to take a couple of
Page 20
1 months to go through the appeal process.
2 Although I think if we prevail on the
3 appeal and he has not yet decided the
4 underlying, I think our position is much better
5 because once -- if the court, as I hope they
6 will, the Fourth District, recognizes our
7 ability to regulate the sale and consumption of
Y.
8 alcohol, and that's a statutorily recognized
9 right that we have, I think then it puts
10 Foster's Pub in a much more difficult position.
}
11 VILLAGE MANAGER KNIGHT: Mayor, can I ask
12 one thing because I just have an idea here and
13 I don't know if it's even legally permissible?
14" But can the property owner enforce their lease
k
15 agreement?
16 COUNCILMAN HERNACKI: That was my
17 question.
18 VILLAGE MANAGER KNIGHT: And they're in
19 violation of their lease agreement. Why can't
20 they enforce their lease agreement?
21 VILLAGE ATTORNEY RUBIN: Well, they could
x
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
1 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.
3
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 VILLAGE ATTORNEY RUBIN: You just file
2 it. If he grants a hearing, he might, he might
3 not. I don't know if he's going to.. So that's
4 not a huge time or expense.
5 COUNCILMAN HERNACKI: Going through the
i
6 appeal process, you said a couple of months for
7 appealing the temporary injunction and I think
8 I saw a memo, I don't remember, around 7K?
9 VILLAGE ATTORNEY RUBIN: That's just an
10 estimate, yes. And I don't think -- the issues
11 are not complicated. It's not a complicated
12 appeal.
13 PRESIDENT PRO TEM DR. AUBREY: What will
14 it cost Foster's?
15 VILLAGE ATTORNEY RUBIN: Well, it will
16 cost -- I don't know. It will probably cost
17 them a lot more than you because, I mean, they
18 pay a lot more per hour.
19 COUNCILMAN HERNACKI: And then the actual
20 case, you said a couple of months, which
21 happens in parallel with this appeal process
22 because the case continues on.
23 VILLAGE ATTORNEY RUBIN: Right, the
24 actual case continues on. There's no stay of
25 the actual case, so it does continue on.
Page 23
.1 COUNCILMAN HERNACKI: So what does the
2 actual case cost?
3 VILLAGE ATTORNEY RUBIN: Don't know yet.
4 It depends on if there's going to be a lot -- I
5 don't believe there's going to be a lot of
6 discovery.
7 I'll have to get back to you on the
8 estimate of that. I haven't really figured out
9 how -- I don't know what the judge is
10 anticipating, whether he's going to want us to
11 brief it or whether he -- the problem is
12 there's not much testimony to take.
13 I think any testimony he wants to take he
14 already took. And I don't think that
15 established anything. But what else is anyone
16 going to testify to? It's really a legal
17 issue.
18 COUNCILMAN DR. EISSEY: How can we get
19 him to recuse himself?
20 VILLAGE ATTORNEY RUBIN: Who, the judge?
21 COUNCILMAN DR. EISSEY: The judge.
22 VILLAGE ATTORNEY RUBIN: I don't know.
23 That's easier said than done.
24 COUNCILMAN HERNACKI: My last, probably
25 last question until we get more questions from
Page 24
1 other people,
2 VILLAGE ATTORNEY RUBIN: Sure.
3 COUNCILMAN HERNACKI: Having been in one
4 of these situations before, what do you think
5 opposing counsel -- do you think he's just
6 trying to, in laymen's term, milk it out as
long as possible?
8 VILLAGE ATTORNEY RUBIN: What I believe
9 he wants is he wants us to come to some sort of
F
10 settlement in this case.
11 And the judge even said that to me,
12 Well, isn't there some middle position; can't
13 you let them stay open for a certain amount of
14 time?
15 I mean Foster's knows at the end of their
16 lease, whatever is left of this term, they're
17 done and they're gone.
18 But the judge is -- I think Dave Gorman,
19 who is the attorney for Foster's, he's just
20 posturing to get us to agree to some sort of
21 period of time in which they can operate.
22 MAYOR MANUEL: That lease is what, six
23 years?
24 VILLAGE MANAGER KNIGHT: Seven years.
25 VILLAGE ATTORNEY RUBIN: Seven.
Page 25
1 VILLAGE MANAGER KNIGHT: Mr. Gorman will
2 never admit this but I can tell you, we had
3- this exact conversation prior to the annexation
4
going through, when I was trying to help him
5 through the process, because clearly the
6 Village had very little to gain in this.
7
And we posed the question of does he have
8 grounds for an injunction until he and the
9 property owner could resolve the issue. And
10 Mr. Gorman at that time says I have no legal
11 standing for an injunction.
t
12 And yet, you know what? He threw it
13 against the wall, it stuck, and here we are.
14 One thing to expound upon what Mr. h
15 Hernacki said is if we go forward with the
16 appeal, we can still go forward with the other
17 process. Y
18 VILLAGE ATTORNEY RUBIN: It still does go
19 forward, correct?
20 COUNCILMAN HERNACKI: My only question
21
is, you know, some of your legal brethren will
{
22 do everything they can to, you know, if he has
23 seven years remaining, he'll take five years
24 before we ever get to a judge on the main
25 issue.
Page .26
1
VILLAGE ATTORNEY RUBIN: Well, I mean he
2
could try. And you're right, they -- I don't
3
know if he will but he could -- I mean the
4
judge did give some indication that he would
5
move it along; but you're right, he could
6
really be obstinate and try to throw up
7
roadblocks and obstacles and keep this case
8
just dragging because the longer it drags on, 15
9
the longer --
i
10
COUNCILMAN HERNACKI: As long as he has a
11
temporary injunction, he can keep operating as
12
long as he wants to, as long as we don't appeal
13
it.
14
VILLAGE ATTORNEY RUBIN: That is correct.
15
VILLAGE MANAGER KNIGHT: And the one fear
16
I have from an enforcement standpoint is I
17
don't think we're going to get called for
18
service there.
19
s
I just think they won't call because the
20
last thing they want to do is call law
21
enforcement.
22
You know, we saw the CAD report from the
23
sheriff's office. But now that they know that
24
we're sitting back and watching it, we just
25
won't get the calls until they're, you know,
Page 27
l exacerbated to a point of ....
2. COUNCILMAN HERNACKI: Dangerous.
3 PRESIDENT PRO TEM DR. AUBREY: They have
4 to carry the bodies out.
5 VILLAGE MANAGER KNIGHT: We just won't
6 get the call.
7 MAYOR MANUEL: So basically let's see if
8 we can get to the meat of this thing.
9 We will go forward with the case now as
10 it is, but you're asking whether or not we want
11 to appeal.
12 VILLAGE ATTORNEY RUBIN: Whether you want
13 to appeal the temporary injunction, that's
14 really what I need the answer to.
15 MAYOR MANUEL: In my own personal opinion
16 I think we need to be as aggressive as
17 possible. That's my opinion. I don't know
18 what the rest of the council thinks. I think
19 we need to be as aggressive as possible.
20 I think you need to contact the league
21 and have the league involved with this. They
22 will give us support in this because it is a
23 home rule issue. And I would look for damages
24 at anyplace that is possible for the Village to
25 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
1 starting back when we first were talking about
2 the annexation we were determining whether we
3 could look at the different criteria in the
4 level of service demands; and I think that we
5 say we're de -annexing because we believe that
6 the level of service demands would be this
7 because we could enforce our ordinance; and
r
8 then if it's not, then the circumstances are
9 not as we anticipated, so it didn't meet the
10 criteria, so you never would have annexed and
11 de -annexed.
12 Now, that does leave us in a situation
13 with the property owner too because one of the
14 reasons they were pushing that annexation is
15 because they had off-site parking from the
16 Mercedes dealership that was contingent upon
17 the annexation of Liveoak Plaza. So it's sort
18 of a, you know ....
19 MAYOR MANUEL: I mean that sounds to me
20 like a great tool to use when you're talking to
21 him.
22 VILLAGE ATTORNEY RUBIN: Right. I could
23 say to Bradenburg, you know, Look, we'll just
24 de -annex.
25 MAYOR MANUEL: We're considering it.
Page 30
1 VILLAGE MANAGER KNIGHT: At the same time
2 we can point to the lease agreement and see if
3. maybe they can apply some, some --
4 COUNCILMAN HERNACKI: Weight?
5 VILLAGE MANAGER KNIGHT: -- weight on the
6 lease.
7 PRESIDENT PRO TEM DR. AUBREY: Yes. If
8 you can get an action going in that direction
9 as well, that puts more pressure and costs on
10 them.
11
VILLAGE ATTORNEY
RUBIN:
Right, sort of
12
on all fronts.
13
VILLAGE MANAGER
KNIGHT:
Could the same
14
judge rule on that or
likely
not?
15
VILLAGE ATTORNEY
RUBIN:
Likely not. It
16
will probably be filed
as a,
it's a different
17
case. It's a different
matter
entirely really.
18
It's a contractual matter
between
the two
19
parties.
20
MAYOR MANUEL: I
think
you have a
21
consensus.
22
VILLAGE ATTORNEY
RUBIN:
Okay. Fair
23
enough. That's what I
was looking
for.
24
VILLAGE MANAGER
KNIGHT:
Anything else?
25
VILLAGE ATTORNEY
RUBIN:
That's it.
Page 32
1 C E R T I F I C A T E
2
THE STATE OF FLORIDA )
3
COUNTY OF PALM BEACH )
4
5 I, Patty McCoy, Shorthand Reporter, certify
6 that I was authorized to and did stenographically
7 report the foregoing proceedings and that the
8 transcript is a true record.
9
10 Dated this 14th day of October, 2008.
11
12
13
14 T ""
15
16 Patty McCoy, Shorthan R porter
17
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20
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