HomeMy Public PortalAboutPRR 14-1537RECORDS REQUEST (the "Request ")
Date of Request: 10/212014
Requestor's Request ID#:
910
REQUESTEE: Custodian of Records Town of Gulf Stream
REQUESTOR: CG Acquisition Company, Inc.
REQUESTOR'S CONTACT INFORMATION: E -Mail: records @commerce- group.com
Fax: 954- 360 -0807; Address: 1280 West Newport Center Drive, Deerfield Beach, FL 33442
REQUEST:
Please provide a copy of the letter from Mark Hanna shown on the August 31, 2014 billing
of Jones, Foster (invoice #174284) at 8119/2014. Please also provide any response by
Jones, Foster or any of er attorney for the Town of Gulf Stream, -Including the Town of
ADDITIONAL INFORMATION REGARDING REQUEST:
THIS REQUEST IS MADE PURSUANT TO PUBLIC RECORDS ACT,
CHAPTER 119 OF THE FLORIDA STATUTES AND IS ALSO REQUESTED UNDER THE COMMON
LAW RIGHT TO MOW, THE COMMON LAW RIGHT OF ACCESS; AND ANY STATUTORY
RIGHT TO KNOW (INCLUDING, WITHOUT LIMITATION, ANY STATUTORY RIGHT OF
ACCESS, AS APPLICABLE). THIS REQUEST IS ALSO MADE PURSUANT TO THE RIGHTS OF
THE REQUESTER PROVIDED IN THE FLORIDA CONSTITUTION.
IT IS REQUESTED THAT THIS RECORDS REQUEST BE FULFILLED IN ELECTRONIC FORM. IF
NOT AVAILABLE IN ELECTRONIC FORM, IT IS REQUESTED THAT THIS RECORDS REQUEST BE
FULFILLED ON 11 X 17 PAPER. NOTE: IN ALL CASES (UNLESS IMPOSSIBLE) THE COPIES
SHOULD BE TWO SIDED AND SHOULD BE BILLED IN ACCORDANCE WITH Section 119.07(4) (a) (2)
ALL ELECTRONIC COPIES ARE REQUESTED TO BE SENT BY E -MAIL DELIVERY.
PLEASE PROVIDE THE APPROXIMATE COSTS (IF ANY) TO FULFILL THIS PUBLIC RECORDS
REQUEST IN ADVANCE.
It will be required that the Requester approve of any costs, asserted by the Agency (as defined in Florida
Statute, Chapter 119.01 (Definitions)), in advance of any costs imposed to the Requester by the Agency.
I:P/NPR/FRR
09.12.14 FORM
TOWN OF GULF STREAM
PALM BEACH COUNTY, FLORIDA
Delivered via e-mail
October 20, 2014
CG Acquisition Company, Inc. [mail to: records @commerce - group.com]
Re: GS #1537 (910)
Please provide a copy of the letter from Mark Hanna shown on the August 31, 2014 billing of
Jones, Foster (Invoice #174284) at 811912014. Please also provide any response by Jones, Foster
or any other attorney for the Town of Gulf Stream, including the Town of Gulf Stream to that letter.
Dear CG Acquisition Company, Inc. [mail to: records(commerce- groun.coml,
The Town of Gulf Stream received your public records request on October 2, 2014. If your
request was received in writing, then the request can be found at the following link:
http: / /www2 .gulf- stream.orgfWebLink8 /0 /doc /22825 /Pagel.asyx. If your request was verbal,
then the description of your public records request is set forth in the italics above. In future
correspondence, please refer to this public records request by the above referenced number.
The Town of Gulf Stream is currently working on a large number of incoming public records
requests. The Town will use its very best efforts to further respond to your public records request
in a reasonable amount of time.
Sincerely,
Town Clerk
COMMERCE GROUP
mobovleaco mmerce- eroun.com
Direct Dial Telephone #954 -570 -3505
October 21, 2014
VIA E -MAIL: bthrasher @gulf- stream.ore
TELEPHONE #561- 276 -5116
Town of Gulf Stream
100 Sea Road
Gulf Stream, FL 33483
Attn: William H. Thrasher, Town Manager
Re: Records Request #910
Requestor: CG Acquisition Company, Inc.
Dear Mr. Thrasher:
Reference is made to the captioned Request which was submitted to the Town of Gulf Stream on
October 2, 2014. A copy of the Request is attached for convenience.
It is the Requestor's belief that the Town of Gulf Stream is purposely delaying the fulfilling of the
Request.
It is implausible that the fulfilling of this Request is taking this long.
I write you this letter to alert you that if the captioned Request is not fulfilled by the close of
business on Friday, October 24, 2014 (the "Deadline "), that the Requester will, with great
reticence, institute suit.
Of course, if you cannot accommodate the Deadline and you alert us at least 24 hours before the
Deadline, articulating a bona fide reason for not being able to accommodate the Deadline, the
Requestor will consider extending the Deadline to a reasonable date considering the
circumstances, which circumstances would have to be reasonable in themselves.
Sincerely yours,
COMMERCE GROUP, INC.
Martin E. O'Boyle
President
Enclosure
P/NPR/FRR
www.dommerce-group.com
Try.. 954.360.7713 . Fax 954.360.0807
1280 Was NMWRT CENTER Dam. DEEMELD BEACH, FwKiDA 33442
RECORDS REQUEST (the "Request ")
Date of Request: 10/2/2014
Requestor's Request ID#:
910
REQUESTEE: Custodian of Records Town of Gulf Stream
REQUESTOR: CG Acquisition Company, Inc.
REQUESTOR'S CONTACT INFORMATION: E -Mail: records @commerce- group.com
Fax: 954- 360 -0807; Address: 1280 West Newport Center Drive, Deerfield Beach, FL 33442
REQUEST:
Please provide a copy of the letter from Mark Hanna shown on the August 31, 2014 billing
of Jones, Foster (Invoice #174284) at 8/19/2014. Please also provide any response by
Jones, Foster or any other attorney for UTe—T-o`wn-oTG-ulf Stream, including the Town of
ADDITIONAL INFORMATION REGARDING REQUEST:
THIS REQUEST IS MADE PURSUANT TO PUBLIC RECORDS ACT,
CHAPTER 119 OF THE FLORIDA STATUTES AND IS ALSO REQUESTED UNDER THE COMMON
LAW RIGHT TO KNOW, THE COMMON LAW RIGHT OF ACCESS; AND ANY STATUTORY
RIGHT TO KNOW (INCLUDING, WITHOUT LIMITATION, ANY STATUTORY RIGHT OF
ACCESS, AS APPLICABLE). THIS REQUEST IS ALSO MADE PURSUANT TO THE RIGHTS OF
THE REQUESTOR PROVIDED IN THE FLORIDA CONSTITUTION.
IT IS REQUESTED THAT THIS RECORDS REQUEST BE FULFILLED IN ELECTRONIC FORM. IF
NOT AVAILABLE IN ELECTRONIC FORM, IT IS REQUESTED THAT THIS RECORDS REQUEST BE
FULFILLED ON 11 X 17 PAPER. NOTE: IN ALL CASES (UNLESS IMPOSSIBLE) THE COPIES
SHOULD BE TWO SIDED AND SHOULD BE BILLED IN ACCORDANCE WITH Section 119.07(4) (a) (2)
ALL ELECTRONIC COPIES ARE REQUESTED TO BE SENT BY E -MAIL DELIVERY.
PLEASE PROVIDE THE APPROXIMATE COSTS (IF ANY) TO FULFILL THIS PUBLIC RECORDS
REQUEST IN ADVANCE.
It will be required that the Requestor approve of any costs, asserted by the Agency (as defined in Florida
Statute, Chapter 119.01 (Definitions)), in advance of any costs imposed to the Requestor by the Agency.
I:P/NPR/FRR
09.12.14 FORM
From: Mark Hanna [mailto:mhanna @g3mlaw.com]
Sent: Tuesday, August 19, 2014 1:15 PM
To: OConnor, Joanne M.; Randolph, John C.
Cc: Mark Hanna
Subject: O'Hare /Solar Roof- FYI - Documents from Third DCA
Joanne and Skip,
I have attached the documents and newspaper articles concerning the City of Key West's loss to a homeowner who
wanted to paint his roof with a white environmentally friendly paint. The City's Historical Architectural Review
Commission did not like the color and demanded that he change It to one consistent with the city ordinances. The
Third District Court of Appeal affirmed the Circuit Court's May 31, 2013 ruling that the City cannot tell property owners
what "energy - saving devices" they may use because of Florida Statute 163.04.
In the May 18, 2014 Board of Adjustment hearing, the Commission acknowledged that energy saving devices have
been permitted in the Town. They just did like the one proposed by Mr. O'Hare because it had some metal
components. The metal components, however, are an Integral part of the whole solar roofing system. Just as the
City's HARC board could not force a certain color on the homeowner, the Town cannot force a homeowner to use a
certain type of solar roofing material.
Apparently, Key West has decided It is a losing battle and will not appeal to the Florida Supreme Court. They
decided stop the bleeding of attorneys fees they will be paying and petitioning the legislature to change the
law. Perhaps it is time the Town does the same.
VICTOR CUSHMAN,
Plaintiff
Vs.
THE CITY OF KEY WEST,
A municipal corporation,
Defendant
IN THE CIRCUIT COURT OF THE 16TH
JUDICIAL CIRCUIT OF THE STATE OF
FLORIDA IN AND FOR MONROE COUNTY
CASE NO: 2011 -CA -708 -K
FINAL SUMMARY JUDGMENT
THIS MATTER came on to be heard upon Plaintiffs Motion for Summary Judgment,
and the court, having reviewed the Motion, any opposition thereto, affidavits filed both in
support of and opposition to the Motion, and having considered the argument of counsel
and the case authorities presented, and being otherwise fully informed in the premises,
hereby finds and Orders as follows:
1. Plaintiff, VICTOR CUSHMAN, owns real property located in the Bahama Village
neighborhood, within the City of Key West, Monroe County, Florida. The real
property in question, which is in the historical district of the City of Key West, is
generally subject to the City of Key West's Code of Ordinance, including but not
limited to Section 90 -126 et seg. of the City's Code of Ordinances, whereunder
modifications to the exterior of structures in the historic district are subject to
regulation by the Historic Architectural Review Commission (HARC).
id
rwn 2. Plaintiff CUSHMAN requested permission from the City of Key West to apply a
white elastomeric coating to the roofs of his houses located at 720 -726 Emma
Street, in Key West. The product is manufactured by Lanco, a division of the
Blanco group in Orlando, Florida, and is designed to reduce heat penetration
through the roof by reflecting certain wave lengths of radiation from the sun, and
thus carries an Energy Star Rating.' After a finding by the City's Code
Enforcement Magistrate that the white coating in question constituted an energy
device under Section 163.04(1), Fla. Stats., HARC nonetheless determined that
a different product known as "Grey Button" would be approved, and disapproved
the white elastomeric coating selected by CUSHMAN.
3. Pursuant to technical information submitted in support of the Motion for
Summary Judgment, the white elastomeric roof coating preferred by CUSHMAN
has a significantly higher reflectivity rate than the "Grey Button" color suggested
by HARC. Grey Button has a light reflectivity of 79.28 %, and the white
elastomeric roof coating has a reflectivity of 92.63 %, according to the technical
director of Lanco paints in Orlando, Florida, whose test results were not
contested or rebutted by the City.2
ANALYSIS
4. In order for Plaintiff to obtain judgment in this matter, he must show an
entitlement under Florida Statute Section163.04(1) -(4) for relief from application
of the City ordinance. The statute itself provides "notwithstanding any provision
' It is undisputed that at a Code Enforcement hearing before Special Magistrate J. Jefferson Overby, the Magistrate
determined "that the elastomeric coating applied by (Cushman] is an energy device under Sections 163.04(1)."
2 See Affridavit of Bert Bender, Architect, submitted by the City in opposition to the motion for summaryjudgment
which acknowledges the variance in solar reflectance between the product chosen by Cushman versus the Grey
Button product suggested by HARC.
of this chapter or other provision of general or special law, the adoption of an
ordinance by a governing body, as those terms are defined in this chapter, which
prohibits or has the effect of prohibiting the installation of solar collectors,
clotheslines, or other energy devices based on renewable resources is expressly
prohibited." Florida Statute Section 163.04 does not contain any exemption,
express or implied, for historic structures or districts within the State of Florida.
Although the City of Key West suggested, at oral argument that the court should
find such an exemption from the "legislative intent", it is obvious to the court that
no such intent was expressed in the words of the statute.
5. The court finds, based upon the undisputed facts presented, as well as the
express finding of the City's Special Magistrate, that the white elastomeric
l coating chosen by CUSHMAN constitutes an energy device pursuant to Section
163.04. The court further finds that the HARC regulations, as they have been
applied to CUSHMAN'S property, in the context of this case, have the effect of
prohibiting the installation of an energy device, contrary to Florida Statutes.
6. "Municipal ordinances are inferior to the laws of the state and must not conflict
with any controlling provision of a statute." Thomas v. State, 614 So.2d 468, 470
(Fla. 1993).
7. The City's suggested alternative coating is not the functional equivalent of the
coating chosen by Cushman. If the City's alternative coating had been
substantially equivalent to Cushman's in terms of the reflectivity level, then
requiring the alternative "aesthetically correct" color for the coating would have
r
been permissible, and the City's requiring its use would not have had the effect
of prohibiting the installation of an energy device, contrary to the statute.
8. The court finds, therefore, that there are no material facts in dispute, and that
summary judgment in favor of the Plaintiff is GRANTED as follows:
It is ORDERED and ADJUDGED that:
1. Plaintiffs Motion for Summary Judgment is GRANTED, and the City of Key
West is permanently enjoined from prohibiting the use of the white
elastomeric coating chosen by CUSHMAN for the roofs of CUSHMAN'S two
houses LOCATED AT 720 -726 Emma Street, Key West, Florida.
2. Plaintiff VICTOR CUSHMAN is the prevailing party for purposes of assessing
attorney's fees and costs;
3. The court retains jurisdiction for purposes of enforcing this Order, and
determining the amount of attorney's fees and costs.
DONE and ORDERED at Key West, Monroe County,_ Florida, this 31St day of May,
2013.
7n+3
DAVIDJ.AUDLIN,:JRJD,�Iid JR.
CHIEF JUDG_ I E JUDGE
cc: John Marston, Esq.
Ronald Ramsingh, Esq, Assistant City Attorney
F
Key West Citizen
Homeowner wins right to paint white
Ruling: HARC can't control choice of 'energy saving' devices
BY ADAM LINHARDT Citizen Staff
al inhardt @keysnews.com
Saturday, May 4, 2013
Ajudge ruled Tuesday in favor of a Bahama Village property owner who's been at loggerheads with the city for four
years over his use of white, heat - reflecting, energy - saving roof paint.
But the four -year legal row between Victor Cushman and the city of Key West could be far from over as the city
mulls appealing circuit Judge David Audlin's ruling, which states the Historical Architectural Review Commission
(HARC) can't tell property owners what "energy saving devices" they may use, said Cushman's attorney, John
Marston.
Cushman has clashed with HARC since 2010, when the board told him the white - painted roofs on his 720 and 726
Emma St. properties didn't comply with its rules, which state roofs must be silver or clear- coated.
The city previously ordered Cushman to use a different environmentally friendly paint that was a "buttonwood gray"
color and not the white he preferred.
Cushman could not be reached for comment.
Audlin agreed that Cushman's paint falls under a state statute that defines and allows it as an "energy device,"
meaning local laws cannot prohibit its use.
Section 163.04 states: "The adoption of an ordinance by a governing body ... which prohibits or has the effect of
prohibiting the installation of solar collectors, clotheslines or other energy devices based on renewable resources is
expressly prohibited."
The decision basically means the city can't legally trump the state statute.
"What this ruling practically means is, suppose you're living in a HARC district and you want to put a solar collector
on your roof and HARC says, No, we want something less conspicuous than the panels you've chosen, "' Marston
said. "Well, Audlin's ruling means that HARC can't say that. They can no longer dictate which 'energy saving
devices' you chose to use."
Audlin made the ruling from the bench and his written ruling had not been published on Friday, but he told Marston
to prepare a proposed order to codify the ruling that would be reviewed by the city, Marston said.
The city is mulling whether nor not to take Audlin's ruling to the 3rd District Court of Appeal, said Assistant City
Attorney Ron Ramsingh.
Ramsingh declined to comment at length on the matter, saying the case could be ongoing, but he did say: "I don't
think it was the legislative intent with this statute to affect historic buildings."
And that sentiment speaks to the heart of the argument. Audlin's ruling could feasibly clear the way for someone in a
HARC district to erect windmills and cover their property in solar panels or skylights.
Any such installations still have to have an energy- saving capacity that can be proven, but Audlin's Wiling is clearly
a loss for HARC, attorneys on both sides said.
HARC Chairman Rudy Molinet declined to comment for this story, citing the legal case
alinhardt @keysnews.com
Key West Citizen
Property owner
BY ADAM LINHARDT Citizen Staff
alinhardt @keysnews.com
Thursday, August 7, 20143
wins roof appeal
A four -year legal battle between a Bahama Village
property owner and the city of Key West over the
color he wants to paint his roof is over as the city
lost an appeal and it appears they will not
challenge the matter further in court, officials said.
The resolution shed light on a little -known state
statute that prohibits local governments from
banning the use of energy- saving devices. It
could feasibly clear the way for property owners in
the historic district of Old Town to install windmills,
or cover their property in solar panels or skylights.
Whether or not that occurs will likely spur further litigation, but property owner Victor Cushman's recent victory sets
an important precedent.
Cushman went to cover his roof with a white, heal - reflecting, energy- saving roof paint in 2010, but the city's
Historical Architectural Review Commission (HARC) cried fowl, and ordered Cushman to use a different
environmentally friendly paint that was a "buttonwood gray" color and not the white he preferred at his properties at
720 and 726 Emma St.
The 3rd District Court of Appeal has ruled in favor of Cushman and affirmed former Circuit Judge David Audlin's May
2013 ruling that HARC cannot tell property owners what "energy- saving devices" they may use, as per Florida
Statute 163.04.
That law states: "The adoption of an ordinance by a governing body ... which prohibits or has the effect of prohibiting
the installation of solar collectors, clotheslines or other energy devices based on renewable resources is expressly
prohibited."
Cushman will now focus on forcing the city to pay his legal fees, said his attorney, John Marston of Key West.
"The city can file asking the (3rd DCA) to reconsider, but that has to be done in the next few days," Marston said.
"And they would have to raise issues that haven't yet been raised.'
That appears unlikely at this point.
"We do have the option to appeal to the Florida Supreme Court, but that's not something I'm told we will be doing,"
said Assistant City Attorney Ron Ramsingh.
The city is looking into having the legislature in Tallahassee change the law or make an exception to the statute, but
at this point they're still researching such a move, Ramsingh said.
Whether the ruling will clear the way for people installing windmills or other energy devices on properties that fall
under HARC's jurisdiction remains to be seen.
"If I wanted to put a windmill on my house, I would certainly face some engineering hurdles, but I don't think HARC
can stop me," Marston said.
Ramsingh said he couldn't comment on the issue.
"How people interpret statute 163.04 is between them and their attorneys," Ramsingh said.
alinhardtO)kevsnews.com
TWO 0'!Ytrict Court of Z(ppear
State of Florida
Opinion filed July 23, 2014.
Not final until disposition of timely filed motion for rehearing.
No. 3D13 -1779
Lower Tribunal No. 11 -708 -K
Victor Cushman,
Appellant,
VS.
The City of Key West, etc.,
Appellee.
An Appeal from the Circuit Court for Monroe County, David J. Audlin, Jr.,
Judge.
Shawn Smith, City Attorney, and Ronald J. Ramsingh, Assistant City
Attorney (Key West), for appellant.
John Marston (Key West); Jedde Regante (Key West), for appellee.
Before SHEPHERD, C.J., and LAGOA and LOGUE, JJ.
PER CURIAM.
Affirmed.
TOWN OF GULF STREAM
PALM BEACH COUNTY, FLORIDA
Delivered via e-mail
October 23, 2014
CG Acquisition Company, Inc. [mail to: records @commerce - group.com]
Re: GS #1537 (910)
Please provide a copy of the letter from Mark Hanna shown on the August 31, 2014 billing of
Jones, Foster (Invoice #174284) at 811912014. Please also provide any response by Jones,
Foster or any other attorney for the Town of Gulf Stream, including the Town of Gulf Stream to
that letter.
Dear CG Acquisition Company, Inc. [mail to: recordsQcommerce- uroun.coml,
This letter provides you with the full production of public records you have requested on October
2, 2014. Your original request can be viewed at the following link: http://www2.gulf-
stream.or¢/W ebLink8 /0 /doc /22825/Pasel .aspx.
The responsive documents can be found at the same link. There were no return responses to Mr.
Hanna.
We consider this matter closed.
Sincerely,
Town Clerk
Custodian of the Records