HomeMy Public PortalAbout2015-04-08 AttorneyClient In The Matter Of Bal Harbour Yacht Club CASE 15-6568CA301
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BAL HA RBOUR VILLAGE
ATTORNEY/CL I ENT SESSION
IN THE MATTER OF : BAL HARBOUR YACHT CLUB V . BAL HARBO UR
14 V I LLAGE
15 CASE NUMBER: 15-6568 CA 30
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BAL HARBOUR VILLAGE HALL
655 96th STREET
BAL HARBOUR, FLORIDA 33154
TUESDAY , APRIL 28 , 2015
6 :05 p.m. -7 :25 p .m .
Taken before Mary G. Stephenson, FPR, Notary
Public for t he State of Florida
TAYLOR REESE AND ASSOCIATES, INC .
(305) 444-73 3 1
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1 APPEARANCES:
2 COUNCILMEMBERS:
3 MARTIN PACKER, MAYOR
PATRICIA COHEN, ASSISTANT MAYOR
4 GABRIEL GROISMAN
SETH E . SALVER
5 J AIME M. SANZ
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VILLAGE MANAGER:
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JORGE M. GONZALEZ
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VILLAGE ATTORNEY:
WEISS SEROTA HELFMAN
PASTORIZA COLE & BONISKE, P.A.
BY : RICHARD JAY WEISS, ESQ.
JOSEPH H. SEROTA, ESQ.
15 VILLAGE CLERK:
16 DOLORES MEJIA
(PRESENT ONLY DURING PUBLIC PORTION)
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TAYLOR REESE AND ASSOCIATES, INC .
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1 Thereupon, the following proceedings were had:
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order .
MAYOR PACKER: The meeting will come to
The clerk please call the roll.
MS . MEJIA: Assistant Mayor Cohen .
ASSISTANT MAYOR COHEN : Here .
MS . MEJIA: Councilman Groisman.
COUNCILMAN GROISMAN : Here .
MS . MEJIA: Councilman Salver.
COUNCILMAN SALVER: Here .
MS. MEJIA: Councilman Sanz .
COUNCILMAN SANZ : Here .
MS . MEJIA: Mayor Packer .
MAYOR PACKER: Here.
The time is now 6 :05 .
We are about to have an attorney/client
session in accordance to Florida Statut e
286 .011(8) regarding the litigation styled as Bal
Harbour Yacht Club , Incorporat ed, et al versus Bal
Harbour Vi ll age in the 11th Judicial Circuit,
Miami-Dad e County, Case Number 15-6568 CA 30.
The session is estimated to last one half
of an hour , and the following people will be i n
attendance at the meeti ng: Mayor Martin Packer,
that is myself , Assistant Mayor Pa tr icia Cohen ,
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Councilman Gabriel Groisman, Councilman Seth
Salver , Councilman Jaime Sanz, Village Manager
Jorge Gonzalez, Village Attorney Richard J . Weiss,
Village Attorney Joseph H. Serota.
These proceedings will be recorded by a
certified court reporter and, at the conclusion of
all litigation discussed, the transcript will be
made part of t he public record .
All those individuals who I have not named
should now leave the room or shall leave the room
at this time. I can't paraphrase anything.
MR. SEROTA: There are very few words
there , mayor.
(Thereupon, Ms . Mejia left the room .)
MAYOR PACKER: Okay. The mee t ing is open.
MR. SERO T A : I 'l l take it . We are here
today, and this should no t take too long, to
discuss a recent ly filed la wsuit and related
issues in accordance1 as t he mayor said, with
Section 286.011 Florida S tatut es, which gives us
the opportuni t y to discuss th is lawsuit outside of
the Sunshine . The door is closed . There is
nobody here except for the court reporter.
You should be aware, though, all of you ,
that everything that we say, everything that you
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say is being written down and, at the end of the
case, will be made public. So everything we say
now is confidential and privileged, but once the
case is over it becomes public, part of the public
record.
Now, also we have an attorney/client
privilege t ha t we enjoy wi t h you and our office ,
but it's only mainta i ned if you only speak to us
about these issues and no third parties. Just
like any other attorney/client privilege , if we
essentia l ly speak to third parties, that privi l ege
could be lost.
MR. WE I SS: So there should be no --it
shouldn't go out from t his session, sor t of, you
know, be talking about what happene d here .
MR . S ER OTA : About what happened and what
people said, things like tha t .
COUNCILMAN GROISMAN : Can you exp l ain to us
sort of with regards to that, what is it that we
can't tel l members of t he public to no t lose t h e
privilege? Just sort of general public
inf ormation?
MR. SEROTA: Gabe, it 's no di ff erent than
any other attorney/client sit u ation. In other
words , you can say that there is a case, whatever
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the case is. You can even give your personal
feelings about the case. That is no
COUNCILMAN GROISMAN: So for purposes of
t he privi l ege , we are the client, us five . You
are the attorney . The public is a third party.
MR. SEROTA : Exactly. Any of your fellow
council people or the mayor says anything here,
you can't say, like , well, the mayor says th i s .
MR. WEISS : Or we decided to do that or
this is our thinking , this is our strategy .
MR . SEROTA: Of course, the most basic
would be, this is our strategy.
MR . WEISS : I just want to say one more
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thing because of the fact the people that we are
dealing with here are litigious, I think it 's
particularly important to stick to the facts of
what we are talking about here because, again ,
this will become public, and the last thi ng we
want to end up doing is winning this case and then
have another case based upon some thi ng that was
said in the transcript because it becomes public .
You do need to discuss it among yourselves
and make decisions , but you should be careful
about --stick to the case as opposed to
personalities and those kind of things .
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MR . SEROTA: This is a complaint for what
i s called a dec l aratory judgment . What a
declaratory judgment is i s wh en a party asks the
court to make a declarat i on. That is, this is not
a money case . They are no t asking for money .
They are not asking even for spec if ic approvals
from the counci l .
What they are asking for is two things .
T hey are asking for, and I 'll say t hey , it 's the
Bal Har bour Yach t C lub , Inc . and Flamingo Way
Enterprises . T hey are the plaintiff.
Harbou r Village is the only defendant.
T he Bal
What they are asking
MAYOR PACKER: Can I j ust say somet hing?
MR . SEROTA: Sure .
MAYOR PACKER: They are two separate
corporations together?
MR. S ER OTA: Uh -huh. Yes, t he y are . If
you want f urther explanation, they explain Bal
Harbour C l ub operates a distinguished yacht c l ub
in the village , according to them , located on the
Bal Harbour --on the portion of the real property
that the Bal Harbour Yacht Club leases from
Flamingo Way . So Flamingo Way i s the property
owner . The yacht club leases it. That is why
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they are both p la i ntiffs.
MR . WEISS : That is what they say.
MR. SEROTA: That i s what they say .
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I n count one, they ask for the judge to
declare and determine that Flam i ngo Way Property
and Bal Harbour Yacht Club are presently in
compliance with the village code inc luding Section
21-1462 of th e village code. That is the first
thing they are asking is, judge, declare that we
are in compliance with the vil lag e code.
The second thin g they are asking in count
two is, judge, determine t ha t the Bal Harbour
Yacht Club is currently a not -for -p rofit
corporation. Okay . That is t he second th ing they
are saying. J udge , determine we are a
not-for-profit corporation .
Now, this complaint alleges that as a
result of vil l age actions and statements made by
council people , by, I t h ink , the manager, by the
village itself or s t aff people, that the re is a
dispute or doubt as to whether they are in
compliance . Okay? In other words, you can't just
ask a court, you know, g ive me an opinion, judge,
that I live where I live. Okay? There has got to
be what is called a dispute or controversy.
TAYLOR REESE AND ASSOCIATES, INC.
(305) 444-7331
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is a significant threshold, by t he way , because
the courts do not want to have to be clogged with
people asking for ideas or asking for
determinations of things unless there is a
le g itima te dispute or doubt .
This case , if it goes forward, would give
t he v i llage, of course, the opportunity to probe
the operations of th e plaintiff, their operations
to see if they are , in fact , in comp l iance with
the code . If they are, in fact, a nonprof i t
corporation .
Now , the code doesn't talk abou t nonprofit
corporations , which is another reason this is all
questionable. It has to be noncommercial . I t
doesn 't talk about nonprofit. They seem to,
reading between t he l ines, equate nonprofit wi th
noncommercial , but t hat is their inte r pretation .
Anyway , to begin with , we think this case
is really subjec t to dismissal if we wanted to
dismiss the case. We don 't have to , but if we
wanted to dismiss the case, we t hink that it's
subject to dismissal . Why ? Because we don 't
th i nk they have sufficiently alleged a case or
controversy .
We think they are me r ely referring to
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comments of the village and that doesn't create ,
in our op i nion, our lega l opinion, a dispute
required, which is required by the courts in order
to go forward . In fact , I personally successfully
defended the Village of Bal Harbour twice.
MR . WEISS : Pinecrest.
MR . SEROTA: Pinecrest. Village of
Pinecrest twice . Now they are on the t h i r d
complaint, whe n a very simi l ar cause of action was
brought against the Village of Pinecrest where
they are say in g the mayor said this and the
counci l person said this, and we, therefore, we
want you, judge , to determine that a certain
resolution of the council is enforceable or isn 't
enfo rceable . We were in front of Judge Schumacher
and I argued t he fi rst t i me, judge, that is not
enough. The council has not ac t ed in a way t hat
is inconsistent with the resolution . Just because
the mayor may not like the resolution , doesn't
mean that there is a case of controversy. Judge
Schumacher dismissed it one time . Brough t it back
a second time . They fixed it up a litt l e bit,
tried to make it sound as though it was more
immediate and more of a present dispute. Judge
Schumacher dismissed it again . And now it 's up
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for a third time. We are going to try to do the
same .
MR. GONZALEZ: Same case?
MR . SEROTA : Same case .
ASSISTANT MAYOR COHEN : How many times can
he do i t ?
MR . SERO TA:
the second time --
MR . GONZA L EZ :
baseball.
MR. S E RO T A :
This is it . We were hop i ng
It 's t hree strikes l ike in
We l l, you know what , t hat is
actua ll y not tha t different in the law . It 's
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usually two strikes or three strikes , you are out.
So we will see.
But t he reason I bring that up here i s just
to tel l you that it's a very similar s i tuation.
Now, in that case withou t revealing any
attorney/client privilege here, the village was n't
that anxious, the Vi l lage of Pinecrest wasn 't that
anxious to deal with this issue, to deal with this
r esol u t i on because i t was somew h at controversial .
T he mayor had made cer t ain comments about it , but
the v i llage counc il had n 't taken any action and
th ey real l y didn 't wa n t the judge to be involved
in it . So that is rea lly where they are.
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So here you need to determine, first of
al l, if you want to go through this or not .
one hand, you can say th i s is a perfect
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opportunity that landed on our desks here, a gift
that says, here , come in, investigate me and
determine if I am --what are my operations like,
am I a commercial ent i ty, am I a nonprofit entity
to the extent that tha t is relevant to the issue
or am I a commercial entity.
MR. WEISS : Let me just interrupt for a
second . You re member at the last council meeting ,
two council meetings, three council meetings ago,
you asked us to give you a report as to whether
the marina was operating properly. And you
remember not at the last council meeting, but the
prior one, I was about to g i ve the report , but
they filed su i t . So t he conclusion of our r eport
was that we r ea l ly couldn't make a determination
as to whe t her they were operat i ng in compliance or
not because we didn 't have enough information, and
I actually, I had a conversat i on with Gabe about
this and we said that there is just not enough
here and we need some ev i dence . We were actually
talking about some of t h ose issues.
COUNCILMAN GROISMAN : Alternatives .
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MR. WEISS: Right. So the report that I
would have given, which I decided not to give
because I can talk to you about it, basically said
that we really don't know what they are doing
there and we need to see their books and their
records and al l of tha t , and what Joe is referring
to is the fact that they filed this lawsuit gives
us the ability, and I have talked to all of you on
the phone about this, but it gives us the
opportunity to get into their books and to get
into their records and see exactly what they are
doing.
COUNCILMAN GRO I SMAN: The other issue is if
we move to dismiss it, which isn't guaranteed that
it will be dismissed .
MR. SEROTA : Correct .
COUNCILMAN GROISMAN: It 's in state court.
Real l y, anything can happen. It 's sort of on the
fence because they had an application, which
hasn 't been brought forth yet , but the important
part is even if i t's dismissed successfully, first
of all , we would be put in a position to make
statements or take positions on their other use
saying it's not in controversy , when, in fact , we
think it is in controversy, although we haven 't
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made an officia l decision on it.
Second of all, they can put us in a
position very quickly where there would be a case
in controversy by filing their application for
what they want now and putting it in front of the
board , and us, for example , let 's say if I stand
up and I say, no, they are operating illegally and
here is why, whatever, and then it 's rejected on
that basis, then maybe there would be a case.
really we just would be punting from my
perspective.
MR . SEROTA : You understand we are not
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recommending that. We are just saying that it's
open to you and it 's just a coincidence that we
are in the midst of this very same issue for
another one of our clients, which we were
successfu l.
MR. WEISS: Because it involves expense ,
you know , to litigate , there is a decision to be
made by the council, an initial decision, which is
we know that we could move to dismiss this case
and whatever would happen, but we are making a
determination and direction to not get this case
dismissed so that we can go through with the
discovery.
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MR . SEROTA : Let me just if I could, just
f i n i sh where I am and t h en I know you have a
question . Let me just te l l you the status of the
case , and then I 'll stop and you guys can talk
about this or te l l us wh ere you want us to go .
The case was filed on March 20, general l y
we have 20 or with the city 30 days to respond.
We obtained an order from the court because we all
had things and I was away and Richard was away and
we just couldn 't get together for an executive
session. So we got an order from the judge , whi ch
extends ou r time to respond unti l May 13th.
stil l have several weeks.
MAYOR PACKER : Two weeks .
So we
MR . SEROTA : Two weeks , okay. What we did
in the meantime , we did prepare some extens i ve
interrogatories , requests for production. Just to
give you an idea of this , we have a request for
production that has this is not just to be
difficul t, but we have got 120 different
categories of documents t hat we have asked them
for, which I wil l have .
COUNCILMAN SALVER : Interrogatories are?
MR . SEROTA : No , no, this is request for
production .
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COUNCILMAN GROISMAN: Interrogatories are
written questions .
MR. WEISS : Interroga tories are questions
where you can say, please give me the name of all
the people that are on the payroll, and t hey have
to give you. That is one.
Request for production is send me copies of
all your checks , give me your books, give me your
records, give me your tax returns, give me all.
That is called a request for production .
ASSISTANT MAYOR COHEN: That has to go
through the attorneys .
MR. WEISS: What you do is you file that
with the court and copy to the attorney, and they
have a certain number of days to answer them or
object t o them , but it 's called d i scovery .
You generally do that before you take
depositions because then you can have the papers
in front of you, and say, well, I see you have a
check here for XYZ, what is this about .
MR. SEROTA : Just to give an i dea . I am
jus t going to read a couple of the 120 separate
things. All annual detailed general ledgers from
the yacht club, all financial statements including
but not limited to income statements , balance
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sheets, audits for the yacht club, all federal
income tax returns , all operating budgets , all
business projections , all business forecasts , all
organizational charts. I won 't go on and on .
COUNCILMAN SALVER: Are you allowed to
request it from Flamingo Way as well?
MR. SEROTA: Yes , absolutely .
MAYOR PACKER : Both of them?
MR . SEROTA : Any and a ll appraisals from
Ball Harbour Yacht Club or Flamingo Way .
COUNCILMAN GROISMAN : Because they are bo t h
parties .
MR . SEROTA : Yes . All bank statements from
the yac h t c l ub . I mean , t h is is --
COUNCI LMAN GROISMAN : And you can even as k
for people that are not the plaint if fs. We can
subpoena from the owne r s , for examp l e , their
financial.
MAYOR PACKER: What about the clients that
are ren ting , members?
MR. SEROTA: We have asked for al l of
their --we have as k ed f or that . Now, they may
claim there is some kind of privilege that it 's
irrelevant. We can fight over tha t.
MR . WE I SS : There will be. Knowing what we
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are dealing with, they will object to some of
these questions and we will have to eventually go
back to the judge.
the judge.
That is standard , go back to
MR. SEROTA: Just to g i ve you an i dea of
how extensive, this was prepared, we ha ven't filed
anything because we didn 't have any direction from
you, bu t at the same time, we didn't really want
to sit on it either . So we have these . We have
interrogatories as well that have been prepared .
Nothing has been filed .
So this is really where we are . There 's
still two weeks left to respond, and the issue in
responding could be, as I say, either a motion to
dismiss or it could be an answer, and the answer
and defenses, and then we start the discovery
process .
CO0NCILMAN SANZ: I have a question . What
started all of th is? What was the reason that
started this? Because you talked a l ot in there,
but you didn't give me what was the reason they
sued us .
MR. WEISS: They sued .
COUNCILMAN SANZ: We know , but why? What
they ask us?
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MR . WEISS : They do n 't really --
COUNCILMAN GROISMAN: Basically, what
happened was they filed for a request to the
architectura l review board to approve new
l andscaping, effectively closing off the marina .
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I read the code , and in the code it says an
alteration of the la ndscap ing plan of the marina
needs to go before the council , not t he
architectural review board specifically . It's on
the record what I quoted t he code of what I
thought . So that came up. Jorge, who I think saw
the same thing when he got it, he put it on the
agenda for the meeting for us to speak about that .
When it came up , I bro ug h t up tha t I think
that it needs to go before the council. When I
was reviewing that section of the code, which is
the section re lated to the yach t club , it was
clear to me that th ey weren't operating within the
code.
Now , i t was my opinion when I looked at it .
So what I did was , very simple, actually, when you
read the transcript , which I got a written
transcript done of the meeting . I got the audio
turned into a transcript . All I did was ask the
village attorney and the village staff .
TAYLOR RE E SE AND ASSOCIATES, INC.
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flagged the issue for them. When I look at it , it
doesn 't look like t hey are operat i ng under the
code.
I directed the village attorney to review
that and to come back t o us with an opinion
because I am not the l awyer of the council . I am
a l awyer , but I 'm not the lawyer of the vil l age.
Richard is, and h e has been mo re than competen t.
He 's the best of the best . Here is the document .
Here is what I see . Please give us an opinion .
I did that and in response , al l hell broke
loose . They f il ed a n ethics comp l aint against me
I think the next day or a couple of days later
because I live across the street f rom the mar i na.
I guess that was some sort private c l ass .
ASSISTANT MAYOR COHEN : And they said in
this council meet i ng that you were self-serving .
COUNCILMAN GROISMAN : Oh , yes .
that meeting .
You were at
COUNCILMAN SANZ : At the original meeting,
not
COUNCILMAN GROIS MAN : Oh, that is why you
are asking .
They are address in g the who l e counci l
e x cept me because I am there pe r sonal l y .
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in that same meeting .
So, anyway, as a result, they f il ed this
lawsu i t , which like Joe said , i s really a gift in
our hands because they have been operating behind
this black curta i n . T here is a history that I
found out. The village , actually , Jorge , that is
how we sort of crossed here for months probably
even before I got on the council.
MR . GONZALEZ: Yes .
COUNCILMAN GROISMAN : Before I even got on
the council inquiring, send i ng letters to them
trying to get that information to determine
because he a l so is looking at that saying , okay,
it doesn't look right . And th ey weren 't giving
enough documents for them to really make a
determination.
So now they filed this , and we get these X
discoveries .
The th ird option of responding, which we
spoke about, and I th i nk we are sort of on t he
same page on this, they have the alternat i ve since
they are the plaintiff , we serve this discovery on
them , of dismissing t he l awsuit and it 's over.
Another alternative is to counterclaim for
declaratory relief. Fo r example, fo r a
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declaration that they are not operating in a
noncommercial or they are in a noncommercia l
capacity and that takes away their ability to just
dismiss the case and i t all goes away .
MR. SEROTA: Wha t I would suggest, though ,
is t hat we couch it similarly to the way they did,
which is not necessarily saying taking the
posi ti on that they are not operating properly, bu t
just to say that there could be an issue, a
dispute.
MR. WEISS : They have already said under
normal circumstances , they could move to dismiss
our --what they are talking about is that i f we
just leave this like it is and we give them this
discovery, they have the ability to say , you know
what, I don't want this .
MR. SEROTA: Forget it.
MR . WEISS : So what they are talking about
is the ability of us
ASSISTANT MAYOR COHEN : Of locking them in.
MR . WEISS: Basically, filing our own
lawsuit . It's with i n this lawsuit, but filing ou r
own claim against them , which they don 't have the
right to dismiss .
COUNCILMAN GROISMAN: Wh ich particularly , I
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t h i nk, makes sense also because if you read it ,
they have , obvious l y , focused on the sect i ons of
the code the way they like it to be read .
ASSISTANT MAYOR COHEN: I understand.
COUNCILMAN GROISMAN : So it gives us a l so
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an opportunity to put before the judge.
necessary? No , it 's not required .
So is it
MR. SEROTA : L isten, we a re getting a
l i ttle bit in the weeds in terms of stra t egy.
I 'll just say one comment . I would be care ful if
we were to file such a co u nterclaim, not to get
into by saying they are not operat i ng . I wou l d
say mere l y there is an issue of dispute , a fac t ual
dispute as to whether t hey are probably
operating --
ASS I STANT MAYOR CO HEN : It 's a question .
MR . SEROTA : I t 's a question and let t he
judge decide . I think that is a safer pos i tion
for us to take , and it would get us the same
thing .
COUNCILMAN GRO I SMAN : I agree .
ASSISTANT MAYOR CO HEN : I have a question .
How about the past? How about what has happened
in the past , wha t is shady , what was never real ly
c l eared up in the past?
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We j ust sort of let it go? What we are
trying to not allow?
MR . SEROTA : That is another issue.
ASSISTANT MAYOR COHEN : What happens? How
does that play into it? Can that be compelling
informa tion to any of this?
MR. GONZALEZ: That is part of the
information you are asking for is that.
MR. SEROTA: Yes .
ASSISTANT MAYOR COHEN:
a ll egedly or all that?
MR . SERO TA: Yes .
ASSISTANT MAYOR COHEN :
can be introduced here?
What he did
Things in the past
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MR . SERO TA: The answer is yes. That is
why we have the time frame of January 1, 2010 to
the p resent . They may object to that time frame,
but generally a five year time frame is a
reasonable time frame for just tha t purpose.
Let's look backwards .
Now, if we find someth i ng that they have
done incorrectly, we can then look at what the
options might be, but we are looking backwards .
We are not just looking fo rward.
MR. WEISS : I think the issue to really
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understand it is what they are doing now.
Historically , if they just basica l ly, excuse the
expression , but just put lipstick on the pig and
they are still operating the same way , that could
be relevant, but really what the judge is going to
be looking at is what is happening there today.
ASSISTAN T MAYOR COHEN: The reason I ask is
because , all this might be anecdotal, but the fact
that it 's our green space . They moved that basin .
It took some of our --all of that is stuff that
was not approved . So some of it has shed a
negative light on their intentions and their
actions .
MR . SEROTA: Right. You understand that in
any litigation, in any process of discovery , you
don't know what you are going to find.
ASSISTANT MAYOR COHEN : That is why it 's
ca l led discovery.
MR. SEROTA: Exactly. That is why it's
called discovery. Now, on one hand , we don't
really need to speculate too much , but I just like
to lay it out there.
I mean , for them to have filed this
lawsuit, I mean , they are not stupid people . They
have hired good lawyers . They know we are going
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to request. I don 't think they are expecting 120
sepa r ate categor i es of the information. Believe
me , we wen t through this carefully . This i s not
just out of the blue . Every one of these , I
bel ie ve, are defe n s i ble , but we have to believe
that t hey understand the discovery process and
they must feel very strongly that wh at they a r e
doing is in comp li ance.
So you need to be aware of that , tha t once
we get into all this background, you don 't know
what they are going to find . We have to believe
they h ired tax lawyers, accountants . You don't
think so? Listen , whatever it i s, we don 't need
to speculate .
COUNCILMA N GROISMAN : T he real i ty is from
my perspect i ve, all of this is good wh atever the
result because there i s def i nite l y ambiguity in
the code and how they a r e operating.
for us as the council
ASSISTANT MAYOR COHEN : C l arify.
COUNC I LMAN GROISMAN : --to get
Th e ab i lity
clarification from the co urt on this very issue,
whichever way it goes, is g r eat for all of us .
It 's a net win fo r the community to sort o f have
someone , a judge come in and say, you know , give
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clarity to how they are operating, what does a
noncommercial operation marina even look like . A
judge will help us get there hopefully. Those are
all positive things .
COUNCILMAN SALVER: The judgment, t he
declaratory judgment doesn 't talk about t he hedge
at all?
COUNCILMAN GRO ISMAN : No . As sort of a
story.
COUNCILMAN SALVER : As part of the
controversy .
COUNC I LMAN GROISMAN: That is not what they
are asking for.
MR . SEROTA : Not specifically. I can 't
believe the hedge won't come up, but this is not
specifically a hedge issue .
We l l , actually , t h ey do . They mention here
th e discussion item in paragraph 18, pe r tai ning to
a five foot hedge .
MR . WEISS : Bu t it doesn't rea lly. What is
interesting is at the same meeting where you asked
us for a report on what was going on at the yacht
club, you also asked us for specifically a letter
dealing with the procedure for applying for the
hedge . What is interesting is that that part, we
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did issue an opinion and said that it needed to
come to council, and that really is a case of
controversy, and they didn 't challenge that.
28
COUNCILMAN GROISMAN: I t 's not because they
agreed.
MR. WEISS: So we issued a letter saying
that because the landscaping was approved as part
of the dockmaster's house, if t hey are going to
change that landscaping, it has got to come to the
council .
I think the hedge is somewhat of a minor
issue for them . The big issue here is the
operation of the marina and all of that.
should be interesting what comes out.
So it
COUNCILMAN GROISMAN: An issue I wanted to
raise , which isn 't a surprise for most of you
here . I think from my perspective , it makes a lot
of sense for us as a community to bring in counsel
outside of Weiss Serota , who is our vil l age
attorney forever in Bal Harbour, to be l itigation
counsel for us.
Let me sort of go through why . I want to
start by saying what I think should be obvious,
whoever has spoken to me about what I think about
Richard and the firm in general . I said at the
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beginning of t hi s meeting Weiss Serota is the best
of the best, specially when it comes to
representing municipalities . You al l know I come
from the local litigation wor l d in Mi ami .
Everybody has only good things to say about the
firm because it 's the t op and I have been working
now with Richard for what i s it, six months or
seven mont h s or howeve r long . Maybe less than
that. I t feels longer.
ASSISTANT MAYOR COHEN: It has been
touched .
MR . WEISS : And a l ready has an ethics
complaint.
COUNCILMAN GROISMAN: No , really, every
interaction I have had with Richard I have been
nothing but impressed and everybody I work with I
told and anybody who has to l d me because there i s
a lot always of chatter of vil l age at t orney and
th is and a million issues , and I tell every single
person whoever mentions something about the
village attorney that if it 's a negative thing,
that they are wrong, and that we have the best
village attorney and everything he is doing is
right, and so far everything that I have looked at
you have been right on the ball a hundred percent .
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I told t h at to you when I spoke to you and I mean
it who l eheartedly.
T hat be in g said, I think you are going to
be, Mr. Weiss , the main witness in this case.
Your role is going t o be tre mendous in the case .
You are the person with the most knowledge on any
of these issues on either side of this case, and I
think we have an opportunity if we can bring in a
top notch litigator, which is sti l l an if I
wi l l get into that in a second --to have you work
on the case as we wil l d i rect you to do t h at to be
our cl ie nt contact.
I look at it f rom a commercial perspective,
no t a municipal i ty perspective . You are our
general counsel. So for you to b e a gene r a l
counsel dealing with litigation counsel giv i ng
them all the information and directing them, but I
th ink we would a ll benefit from a sort of clean
view. We all end up --i t 's a hazard of the
p r ac ti ce of law, and here, I guess, we are in that
scenario that we are in an echo chambe r . We all
h ear each other. We all thi n k we have the bes t
arguments and we come up with everyt hi ng.
To br i ng somebody from the outside to look
at it and give us total l y independent advice
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meaning they have never looked at this before.
They are going to look at it with a clear mind.
really think we are going to benefit.
I haven't worked with Joe Serota before .
He wo r ked where I work. So he has to be good .
31
I
~ut the reputation is the same . The reputation is
the same , and I can tel l you the conversations
tha t I h ave had as far as strategy, and I do do
litigation , so it has been all the advice they
have given us is good advice . The interrogatories
and responses for production, which I have looked
at, they a r e all great . We are all in the right
direction. So it 's not an issue as to the work or
as to the quality or any of t ha t and I real l y hope
that even whatever the council decides
ASSISTANT MAYOR COHEN:
integrity .
COUNCILMAN GROISMAN :
Or as to the
I really hope
whatever the council decides because people may
not agree wi t h me , and that is fine , that you guys
p l ease, both of you , f r om a personal perspective
understand that it is coming from the right p l ace
of getting the best result for our residents , for
our community.
Then, specif i ca ll y , I spoke , I reached out
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to Greenberg Traurig . It 's the first firm I
reached out to to see if they wou l d be wi ll ing to
take this case . I have a relationship with them
iri the sense that we refer cases to them
sometimes , they refer cases to us . I think my
firm re p resents them in malpractice cases. I
spoke to Ron Rosengarten , one of the heads of the
litigation department , and t hey are open to doing
this, and they know what municipal rates are .
don 't know if peop l e realize the rates we pay
Weiss Serota is a bargain of a bargain of a
bargain .
ASSISTANT MAYOR COHEN : We know .
COUNCILMAN GROISMAN: They are set up for
I
that. So it 's something they can do. It 's harder
for another firm to do it of a high caliber .
Apparently, we didn 't ta lk n umbers
specifically because I don 't have al l the
information, but they know what municipal rates
are . They are open to doing the case. So I
didn't bring t he m into this meeting because it
wasn 't appropriate and I really j ust want to
get we all as a council haven 't had a chance to
a i r this out and talk about it, but that is my
opin ion. I would love to he ar what everyone else
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on the counc il has to think about it.
MAYOR PACKER: Being that you are an
attorney, you said something about freshness and
so forth, and you are in t he b usin ess. What do
you think would be different than what has been
presented here, in walk i ng into a trap that
another attorney could explore more than what this
is?
COUNCILMAN GROISMAN: It's not an issue of
walking into a trap. The d i scovery i s going to be
the same no matter which way.
MAYOR PACKER : So that would be the same?
COUNCILMAN GROISMAN: Yes. Everyone would
ask for all their documents . Everyone has
different strategies of how to get there. Any
decent attorney will get to the right place and
ge t the right documents. That is not a --
MAYOR PACKER : So what? I want to see
COUNCILMAN GROISMAN: Yes .
MAYOR PACKER : --t o the next leve l . What
do you see as the next level?
COUNCILMAN GROISMAN: For me , the next
level is, what I would like is someone to come in
and look at our code and give us advice on whether
they are operating under the code or not, someone
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who hasn't written l egal opinions about their
operations of the code, someone who hasn't had
communications with them about their operations of
the code. I want someone else to come i n and sit
down and tell us, okay , I have looked at this, I
have spoken to R i chard , he r e i s what I think you
need to do .
Now , granted , this isn 't a case for
damages. They are not suing us for money . If
they were , then my op i nion wouldn 't be as soft as
i t was. For me, I think it was pretty soft , sort
of just what I think we should do . It would be
s t ronger if there i s money and say, what are we
going to do with the property .
This is just decla r ation, a declaratory
re l ief suit. What I think is this is the
beginn i ng of sort o f hopefully resolving all the
ambigui t ies r e l ated to the marina and t he
operation of that d i strict . You k now , a fresh set
of eyes giving us advice on how to maneuver
through it. Someone who hasn 't been involved, who
has no history with them in t he sense of othe r
l awsuits that we have had against them already.
We a l ready have lawsuits that y ou all rep r esented
the vil l age .
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So I wou ld l i ke someone else to give us
that fresh perspect i ve . I have a perspect i ve, but
I don 't have the time or it's not my
responsibi li t y t o go in as a lawyer a nd look at
this . You k now, I 'm really trying to keep t hose
roles defined . You kn ow, the hundred dollars a
month I ge t here don 't pay me to rea ll y go
through
MR . GON ZALE Z : And spend th e sa l aries.
COUNC I LMAN GROISMAN: I don't k n ow if that
answers your questio n or not .
COUNC I LMAN SANZ : I am going to make it
very s i mp l e because when we are s itti ng h ere , I am
the one who has been here the l ongest .
I h ave a l ot of r es p ect fo r Richard and h i s
f i rm. They have al ways done the best job that t h e
vil l age cou l d get.
I don 't see any r eason to go fishing with
all the people and spend more money when they are
going to come out with the same answer . It 's kind
of d i srespect f ul to Richard , who has put a lo t of
hours working for this vil l age and represen t t his
village for years and years , way be f ore any o f us
came t o the council.
T o somebody new , I think i s j us t was ti ng
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money bringing another law yer from one lawyer to
the other lawyer, to the other l awyer .
P lus, do these people t he lawyers get
commissions like we do when I refer somebody to
Neimans or the other one?
COUNC I LMAN GROISMAN: Okay. No. If a
lawyer gets a commission fo r referral, it has to
be disclosed and in writ i ng and to everybody.
MAYOR PACKER: That would be an et hics
violation.
COUNCILMAN GROISMAN: If you are asking me
i f I got a commission, no, no. In my world , the
commercial li t igation world, just so you know ,
which this isn't commercial litigation, put just
to be c l ear, in the commercial litigation world ,
we don't give referrals.
referrals.
COUNCILMAN SANZ:
We don't take or give
Because, like I say, now
36
everybody knows how I feel about it. You know, I
have a lot of trust in Richard and his company and
Mr. Serota too . I have been si t ting in th i s a few
times already, and they always have come out with
a winning situation for us.
MAYOR PACKER : I have another question .
How, and the way Gabe says you would
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possib l y be a wi t ness , how does that r epresenting
us in this thing if it actually gets into a court
thing because , like you say , either way if they
move to dismiss , and they don 't want to give all
t h is information ou t , if it does actual l y end up
in a courtroom , how does that affect you if they
call you as a witness?
MR . WEISS : We have had th i s situation come
up a number of times before . Basically , you know ,
I wou l d be a wi t ness , and I would be questioned by
whatever lawyer is represent i ng the village
whether i t was our firm or another firm .
MAYOR PACKER: If you would be representing
the village .
MR . WEISS : I n this part i cular case , Joe
wou l d be as k ing me questions that we have go n e
over before .
MR . SEROTA : Actual l y , I wouldn 't be.
Let 's say in a deposit i on --you know , Richard has
been deposed be f ore . It has come up. I t has come
up before. Richard has been a witness , by the
way , whether it 's Richard o r someone else in the
firm . Under t he Bar ru l es as long as the
attorney's or the witness/attorney 's position is
cons i stent with th at of the client , it 's no
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ethical issue . So there is no ethical issue
presented .
MR . WEISS : Right.
ASSISTANT MAYOR COHEN : I have
COUNC I LMAN GROISMAN : Sorry.
ASSISTANT MAYOR COHEN : Go ahead.
COUNCILMAN GROISMAN : Just to fal l back, I
haven 't looked into this at all . In the other
38
situations when you have dealt with this , did the
other side move to have you disqualified?
MR . SEROTA : No .
COUNCILMAN GROISMAN: No?
MR . SEROTA: Not based upon a witness .
COUNCILMAN GROISMAN: No , no , not based
upon his --because there is some case law on
that . The lawyer can 't be the key witness in the
case or t he --
MR. SEROTA : Well, the point is --
MR . WEISS : No . On one of the Ke l say
Patterson cases , they did move to disqua l ify us
and the judge ruled that it wasn 't --remember
that case?
COUNCILMAN GRO I SMAN: I think we u l timately
did on the right timing of it anyway. I am just
wondering if that is the strategy of litigants
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taking agai n s t the municipality .
MR . SEROTA : They did move to disqua l ify ,
but I think it was on a d i fferent issue.
MR. WEISS : Maybe a d iff erent case .
COUNCIL MAN GROISMAN : Sorry .
ASS I STANT MAYOR COHEN : So my position, I
haven't been here as long as Jamie has . I agree
39
with what Jamie says and I agree with J aime in the
sense that Richard, I have unshakeable faith in
Richard in all his intentions and everything he
has always done for us.
This is a particular case , though . There
is so much heat around this individual. He is
part of the commun i ty . He has been here for so
long . Hi s roots extend far . We can 't deny the
fact that Richard has come into contact wit h h i m
and his associates throughout a l l the yea rs , just
like he has with so many of the residents in Bal
Harbour. Some of it has , I am sure , been friendly
just from being here.
I have heard from a number of people tell
me, Patricia, I'm not comfortable. T his needs to
be looked at by more than one set of eyes . It has
been said to me, I have consulted fr i ends outside
of the vil l age, attorneys just basically t he
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scenario and I don 't think we would be do i ng any
harm or we would be spending money frivolously i f
we were to get someone to j u st back up what Weiss
Se r ota has to say , just to confirm .
I would feel so comfortable going out and
tell i ng people , we not only have our attorneys who
want best for us, we have a second opinion . Okay?
This is as far as we can go . This is what we can
do . T his is wha t has been done . We can stop t hem
from doing what they did .
I feel that i t's money well spent . I would
never want i t to be for you , any of you to view it
as an expression of any kind of doubt that we have
or any kind of , you know --how you say? What I
am trying to say is that I think you are more than
competent to handle it, but I would feel more
comfo r tab l e i f we had a con fi rmation on it . I
think a l ot of peop l e would .
I have been through this before . Remember ,
we have been down the road with this gentleman
before , and this i s a lot of what I got after.
don 't want to get it again .
it 's always the same peop le .
somebody else . Let 's do it.
Oh, wel l , you know ,
Why didn 't you get
L et 's be upfron t .
I
That is what the citizens are paying for . I t h in k
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this is a heated debate . This is no t --people
are going t o take two opinions corroborating a r e
going to placate most of the res i dents and they
are going to say, you did the most that you could
do.
COUNCILMAN GROISMAN: None of my idea is
that it would cost us more. T he i dea is to get
someone to pay the same rates. Just like Richard
isn't a litigator, his firm would be invo lved
heavily in advising h is partners on the case.
Real l y, Ric ha rd would have the same ro l e whoever
is the litigation counsel.
MR . WEISS: Let me just think this through .
COUNC ILMAN GROISMAN: Anyway , that is my
opinion.
MR. WEISS: What is entering into this is
the fact that all o f you, some of you newer know
that I have a real personal relationship with you
guys and that I care about the village. I think
what is mak i ng th is mor e difficu l t is th at you are
concerned, which I can tell you after doing this
so many years, concerned about me and how this
affects me and whether it's embarrassing to me and
whether it so rt o f in t e r feres wi th my r epu tati on
and all of th at .
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Honestly, I would tell you and I know this
for t he comments that you have made to me pub li cly
and privately , I love you for it. I really do . I
think I told you before I only work on four
cl ient s now and I do Bal Harbour beca u se I have so
much invested here and Joe and I both care abo u t
the vi l lage and wan t to do what is right for the
village.
I have ta l ked to Gabe about this . I don 't
want to make this I think this becomes more
difficult because of the fact that you guys, and I
can 't tell you how much I appreciate it , you know ,
have a personal relationship with me , and I don't
want it to become about that. So I talked to Gabe
and I t old Gabe that we are perfectly competent to
handle this case .
need t o --
Gabe knows that and I don 't
ASSISTANT MAYOR COHEN: You are .
MR . WEISS : But I also understand
everything that goes on here , and so I don 't have
any strong, you k now, I want to give you what I
call an emotional disclaimer on this, which is I
don 't have any strong --t here was another
circumstance t ha t came up , whic h I felt very
st r ong l y abou t and --
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ASSISTANT MAYOR COHEN: We talked about it.
MR . WEISS: Patricia and I ta lke d about it.
/
ASSISTANT MAYOR COHEN: And it went away.
MR. WEISS: I don't have a strong emotional
feeling about this . I don't take it that way.
know that it's not com in g from Gabe that way.
ASSISTANT MAYOR COHEN: And not from me.
MR. WEISS: I know i t 's not coming from
Patricia this way. I can 't t el l you, Jaime --
ASS I STANT MAYOR COHEN : I just want you to
know
MR. WEISS: --how much I appreciate your
I
comments and I know that it do esn 't real ly have to
do with friendship, but i t has to do with respect
and the work we have done over the years .
So I want to free you from that emotional
part of this . We are very happy to work with, you
know , to work wit h Greenberg Traurig on this if
they will do it or another firm. So I wanted to
say that and give you that sort of emotional part
of this that I don 't feel that this is --you
know, I don't feel li ke it's any kind of a
negative comment about us or about me . So if th at
makes this any eas i er because I see that you are
a l l struggling , but I know why you are struggling.
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So I want to sort of release you from that.
ASSISTANT MAYOR COHEN: I may be the woman
here and I 'm supposed to probably be the most
se n sitive or emotiona l.
MR . WE I SS: No , I 'm not upset.
ASSISTANT MAYOR COHEN: But I like to talk
to people in the face a n d say, you know what ,
don 't tel l me any more that you doubt what we do
or we don 't do or we go all the way. We did it
44
all the way . It 's over . He did this perfect job ,
Richard. That is what I want. I have been
hearing i t for so long . Let's let the you know
what, the you know what hit the fan . Let 's le t ,
yo u know, and let's not act l i k e we a r e covering
because we have a close relationship because he is
our fr i end and this and that . Yeah , he's our
friend . He still will be our friend because we
are do i ng t h i s wi t h all d u e respect .
I am not talking behind his back.
te ll ing him stra i ght out .
I 'm
COUNCILMAN GROISMAN : Let me just say a
couple of things . First of all , I just want to
make clear . When I gave my recommendation wit h
r egards to Greenberg Traurig, i f there is any
ot h er firm anyone wants to use , we all know who
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the good lawyers are in town . Specially all the
lawyers here that work with them. It's not a big
group of sort of the top notch in town.
Serota is in that same group.
Weiss
I f there is someone else , I have no --I
just thought of Greenber g. I don't want there to
be --in fact, I actually a lmos t prefer after the
comment . I don't take i t the wrong way, but I
don't want anyone to think that I am trying to
bring them in for any other purpose. So if there
is another firm that you all think could be good
for this, and you can get them to do municipal
rates , I know my firm h as done municipal work
before. Because of the relationship, we ,
obviously , wouldn't do this one. We can 't, but I
am saying if there 's other firms in town that will
do i t, I 'l l be fine with that too .
Like I said when I finished my initial
thoughts , this isn 't a choice between good and
bad.
ASSISTAN T MAYOR COHEN: Exac tly.
COUNCILMAN GROISMAN : I am making my pitch
of what I think would be the best and tr ying t o be
c l earheaded about that , and I still think that is
the best decision is to bring someone from the
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outside . But you are not going to hear me
screaming or any t hing about it one way or the
o t her . It 's just what I look at it , what I think
would be best .
If you guys don 't agree wi t h me , we are not
losing with the th ing we have here . That is my
piece .
COUNCILMAN SA LVER: I 'm j ust --I am
concerned with the sort of precedent we would be
setting, special l y given that these are very
litigious people, that it can be construed as a
personal vendetta against them that we are like
bringing in another law firm .
ASSISTANT MAYOR COHEN: If you are go in g to
be speculating --
COUNCILMAN GROISMAN: They s u ed us. There
i s no persona l vendetta .
ASSISTAN T MAYOR COHEN : They sued us . We
are doing what we need to do .
COUNCILMAN SALVER : It's not like this
is my understanding of this type of l iti gation
is that it 's li ke by cor r espondence. They sent i n
a comp l aint, t hen we have to respond and t his and
that . There is no --I mean , this is not going to
be in a courtroom.
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COUNCILMAN GROISMAN: It wi l l be in a
courtroom and it will be in conference rooms like
this with sworn testimony .
MR. WEISS : I t starts out we are going to
get all these documents and then we have the
ability to subpoena witnesses. So the first thing
that will happen is however this gets done, they
will subpoena the bookkeeper. You si t in a room
like this with Mary or another court reporter and
you spend hours and hours.
COUNCILMAN SALVER : Take a deposition .
MR . WEISS: And you take a deposition .
They will take our deposi tion. They wi l l take
your depositions. They will ta ke Jorge 's. They
will take everybody in the world's deposition .
COUNCILMAN GROISMAN: They will take all of
ours.
MR. WEISS : They will take all of your
depos i tions and then eventually after that is all
done, maybe there i s some motion practice and t he
case gets dismissed based upon a summary judgment
or something like that, but in the end if it
doesn't get dismissed like that , t hen there is a
trial .
J oe?
T here is a trial. I t 's nonjury or jury ,
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MR . SEROTA : Nonjury .
MR . WE I SS : I t 's a n onjury t rial .
Everybody gets on the stand and Joe and Imbes i
says whatever he is going to say and his wife, but
there is a trial, and the judge then wi l l make a
decision .
So it does end up --a lot of t hese cases
don 't end up going to t rial because they are won
on motion practice . I n this particular case, we
are making a choice because we are sort of beyond
that point. We are mak i ng the choice to let this
case go on a little bi t so that we can find out
real l y what is going on over here.
COUNCILMAN GROISMAN: These cases usually
will end up being decided on the next stage of
motions , the motion for summary judgment because
this is a bench trial anyway . So the judges
aren 't as afraid to reach those conclusions .
MR. WE I SS : This is very fac t specific,
this case . How exactly it 's being operated , what
i s going on, all that is going to be this case .
MAYOR PACKER : If there is someone else
b r ought i n --
MR. WE I SS : Uh-huh.
MAYOR PACKER : --yo u will show h i m all
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your stuff that you have done.
MR . WEISS: Of course .
MR. SEROTA: Absolutely.
MAYOR PACKER: And the person says , no, I
don't think I wa n t t o do that.
MR. WE I SS: Meaning what?
ASS I STANT MAYOR COHEN: What you prepared.
49
MAYOR PACKER: Go through al l of t hi s s t uff
and I think you should maybe
kind of opinion he may have.
whatever other
MR. GONZALEZ: He may have a different
strategy.
MAYOR PACKER: A different strategy.
MR. WEI SS: Comes bac k to the council .
MAYOR PACKER: Wil l come back --not to the
counci l . Come back to us here .
MR. WEISS: Same group . T his is the
counci l .
MAYOR PACKER: And if we feel --
MR. WE I SS: If you feel --let 's assume the
othe r l awyer comes in and says, you know what, I
think he is operat i ng proper l y, I have seen b l ah,
blah, blah, and I t hink you guys need to whatever .
I t wil l come back to the council and we wi ll
have --
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ASSISTANT MAYOR COHEN: We will sit in a
meeting like th i s.
MR . WEISS : We will sit in a meeting like
this and you guys wil l decide what to do .
50
MAYOR PACKER: That would be after you have
gone through all of this?
MR. WEISS : I think that in order for
another lawyer to l ook at this properly , first of
all, they are going to look at t he code careful l y,
which , for the record , precedes me .
COUNCILMAN GROISMAN : I think it precedes
anyone 's l ife .
MR . WEISS: But , anyway , precedes me, and
t h ey will go through a lot of th i s documentary
evidence, and see what they can figure out from
the --you might even end up hiring an accountant
to go through the books . You might end --we are
using in a case for another client an expert who
is a special accountant . He specialize in
not-for-profit entities, and then the lawyer wil l
have an oppo r tunity .
MR . SEROTA : Actually , I consulted with
him . A lot of the requests for production that we
got came as a result of his insight .
MR . WEISS : Yes. So anyway, but ultimately
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we will end up in another situation --of course ,
it 's so easy to schedu l e executive sessions here.
Everybody has such an easy schedule .
MR . GONZALEZ: In between trips .
COUNCILMAN SANZ : I have a question. Now ,
because of the hedges , how much is going to cost
us this? I see now there is another lawyer corning
in , an accountan t , all of that .
much it is going to cost us?
Do we know how
MR . WE I SS : Jaime , this i s going to be ,
considering the people that we are dealing with,
Jaime , this is going to be expensive because we
are dealing with people that are going to fight in
my opinion
COUNCILMAN GROISMAN: Every issue .
MR . WEISS: --they are going to fight
every issue. They a r e going to get the
interrogatories that we filed , and they are going
to say object , object , object , objec t th i s .
are going to have to go down in f r ont of the
We
judge .
dollars .
We are talk i ng about tens of thousands of
ASSISTANT MAYOR COHEN: It always is every
time we have a case.
MR . WEISS: He is asking the question .
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COUNCILMAN GROISMAN : Jaime , even i f we
don't coun t erclaim , let's say we just didn't .
Let's not counterclaim . Let 's just respond . It 's
going to cost u s the same amount anyway because
they are suing us . Litiga t ion i s a two way
street. So you can say we are going to take the
s lim route. We are going to make sure not to
It 's not up to us . It's spend too much money .
not up to one party . It 's up to the other party
how much work you have to do . So when they
subpoena everybody sitting around this room for a
deposition , a lawyer is going to have to s i t with
each one of us to prepa re .
MR. GONZALEZ: That is what Weiss Serota, I
presume , would do.
COUNCILMAN GROISMAN: Well , whoever .
MR . WEISS: Whoever it is.
COUNCILMAN GROISMAN:
going to sit and prep us .
But the l awyer is
They are going to have
to si t through the whole thing in the deposition
and there are going to be costs associated with
the court reporter . Well, they cover the cost .
So even if we do nothing in the case, even if we
say we are going to do noth i ng , which no one would
suggest that you do nothing . Right? No matter
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what strategy, you have to have some strategy .
even if you do nothing , i t 's going to cost t h at
amount of money b e cause t hey are t h e ones going
af t e r us.
MR. WEISS : But t h is is not going to be
53
So
cheap. I was talking to Jorge before the meeti ng.
Th i s could easily cost 50 or a hundred thousand
dollars.
ASSISTANT MAYOR COHEN: Excuse me. Since I
have been on board , we have had --these
litigations costs money, and this o n e merits going
al l t he way because this is already a malaise
coming for a long time , and it has been mostly on
h is doing or their doing .
COUNC I LMAN SALVER : Now, another aspect
that I have to look at he r e is also the fact that
this is a l l go i ng on in a gated area. Does tha t
come into p l ay at all because the marina --
COU NCI LMAN GROISMAN: The marina isn't pa r t
of our district . It's a separate district . That
is why people can come in and out to that marina .
MAYOR P ACKER: No, th ey can't . Not unless
they belong to his club .
COUNCILMAN GROISMAN: Or they are guests
or --
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ASSISTANT MAYOR COHEN : Anything. Anybody
he lets in there.
COUNCILMAN GROISMAN : --or someone who is
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working on t he boats , o r anybody .
district .
It's a separate
Jus t t o c l arify it, the marina is part of
the private recreational dis t r i ct .
ASSISTANT MAYOR COHEN : Which we don't get
to use .
COUNCILMAN GROISMAN : I t's not part of the
gated district. It 's makes no sense beca u se it 's
within o u r district , but it isn 't .
ASSISTANT MAYOR COHEN : It 's par t of our
green space .
MR. WEISS: Jorge , do they pay --
COUNCILMAN GROISMAN : That is part of what
I want --
MR . WEISS : Are they part of the special
assessment?
MR. GONZALEZ: They pay a specia l
assessment . It 's a reduced form .
MAYOR PACKER:
lots, four slips .
I think they pay for four
That i s i t .
MR. WE I SS : My gut i s that --this is the
question you are asking . I think this i s a
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Jorge and I talked about it.
MAYOR PACKER: It 's in the village code.
MR. WEISS: We think it's a village code
kind of thing and it would not really be fa ir to
charge.
COUNCILMAN SALVER: I'm not saying to
55
charge them , but I'm trying to save myself a
conversation down the line with the citizens that
live in my district saying why did we spend
$300,000 to defend the rights of people that live
in a gated area. That is really the only people
that are affected by this.
ASSISTANT MAYOR COHEN: That is a very good
question .
COUNCILMAN SALVER: Because this all
started with a hedge, a five foot hedge that
doesn 't affect anyone that lives outside of
that
COUNCILMAN GROISMAN: First of all, they
are not suing about the hedge.
ASSISTANT MAYOR CO HEN: First of all, there
is a lot more to it.
COUNC I LMAN GROISMAN: Second of all, they
sued Bal Harbour Village .
Th ird of all --
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COUNCILMAN SALVER: That is because we are
the agent of the security district.
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COUNCILMAN GROISMAN: No, that is not true.
COUNCILMAN SALVER: They signed all their
contracts.
ASSISTANT MAYOR COHEN: Well, he said gate.
That is true. T he po int is , to answer
specifically what it is , the marina is not really
the
COUNCILMAN GROISMAN: If it were part of
the gated community and it was our code, they
wouldn't operate. That is a separate district.
COUNCILMAN SALVER: There is no question
that it is a --
COUNCILMAN GROISMAN: It is part of Bal
Harbour.
COUNCILMAN SALVER : --Bal Harbour Village
code issue . But, I mean, getting to t he bottom of
the code, is it legal or is it not , and then at
what cost are we doing that . Because what I see
what brought upon this lawsuit was us saying no to
a five foot hedge.
COUNCILMAN GROISMAN: We didn 't say no .
never came before us . It never came before the
council.
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MR. WEISS: I think what brought th i s
lawsuit up really was a culmination of a lot of
things . When Jorge got here , one of the lingering
items that was on his desk was t h i s issue of the
marina because we had residents complaining about
it.
MAYOR PACKER : Wasn't i t the garbage was
exposed or something?
ASSISTANT MAYOR COHEN : No .
MR. WEISS : We had questio n s from --
ASSISTANT MAYOR COH EN : The land use and
swap. It was the whole thing.
MR . WEISS : It was the dockrnaster house,
this stuff hanging around.
MR . GONZALEZ : It wasn 't operating fairly
and appropriately.
COUNCILMAN SANZ :
get i t .
I don 't know how she can
MR. SEROTA : You have to try to speak one
at a t ime .
MR . WEISS: Jaime , you are right .
So , anyway , this was a lingering issue and
Jorge, with our he l p, we sent the m a series of
letters asking them, and we got some information,
but I think this is something whi ch has sort of
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been building and bui l ding and building.
The hedge, I think , was the first of the
beginning of the battle here dealin g with the
hedge, but we never --you know, it never got t o
the point where we real ly denied them the abi l ity
to put up the h edge .
What happened is they applied. We issued a
letter that said, if you want to put up the hedge,
you ha ve to come up to council.
But , honestly, I think they just saw what
was coming down t he line, including our opinion
and other things. I think it was a building thing
over a year.
ASSISTANT MAYOR COHEN: This has been going
on for awhile.
MR. WEISS: It has been going on for a long
time.
ASSISTANT MAYOR COHEN: One issue after the
other after the other . It j ust pushes the lot .
COUNC IL MAN GROISMAN: Before we make any
decision, let 's just be clear, I am taking
Greenberg Traurig 's name off the table . I'm
ser ious . The last thing I need, even if it 's
Jaime, what you just gave me was a great light
bulb.
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COUNCILMAN SANZ : No. It was a question
f or me . My residents, they are going to say why
are you br i nging, you know. You have the same
problem. They all are going to jump on us saying,
you bring another lawyer. How many lawyers do you
need? How much is going to cost you?
COUNC ILMA N GROISMAN : The question is which
one . You are not br i nging in an extra l awyer .
You are br i ng i ng a different lawyer. But , a n yway,
I sti l l think, I s t i l l believe we should bri n g
outside cou n se l , bu t I 'll le t Richa r d r ecommend
who it is . Because if you said it, other people
will say it , and I'm new in public --if you want
to call this publ ic life. Maybe I 'm deaf to i t
because I don 't t hink --there was not h ing more
than that .
COUNCILMAN SANZ : I didn 't say it . I
ques ti oned it because I didn 't know.
COUNCILMAN GROISMAN: I don 't want anyone
to think t ha t . There 's a lot of other l awyers in
town.
COUNCILMAN SA NZ: I t has been asked from me
already once , and I said I have no idea about it .
I don 't know . Th at i s what I am saying n ow , you
know, because I have to answer to the residents
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when they question me.
MR. GONZALEZ: I think you have two
questions here. One is do you or do you not agree
a third party ou t side attorney is warranted.
I f yes , then how and who are you going to
pick . I would say, let your lawyers decide that
because they are the ones who would know best, but
the first question is irrelevant to t he second
question in some respects.
MR. SEROTA: I think that is a good way to
put it. We have had conflicts before . We don 't
have a conflict here, but we ha ve had conflicts
before, and we have been involved in picking
competent municipal counsel that , you know , we
feel are often adversaries of our people that we
think are competent. We can do that and whether
we work with Gabe or any of you to talk about who
it is that we might th ink , we can do that.
I think the manager is right. I think the
f irst decision you need t o make is if you want to
go to outside counsel.
MR . WEISS : Unfortunately, we don't really
vote in these things , but I just need you to tel l
us what you want to do .
MR . SEROTA: Right, but we need a
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consensus .
ASSISTANT MAYOR COHEN: I think two of us ,
you know , have already made it very clear, and
Jaime has made it very clear too .
I don't know if you reconsidered.
COUNCILMAN SANZ: No . I made i t very
clear . No way. It 's up to the two of them .
MAYOR PACKER : Are you looking for a
comment from me?
MR . WEISS: Yes . You are the mayor .
ASSISTANT MAYOR COHEN : Not comment. We
need
COUNCILMAN GROISMAN : You know what? I'm
61
changing my opinion. I wasted a lot of your time,
but I think we should stick with Weiss Serota .
I think we should stay with Weiss Serota .
I don't want someone to come in and think we are
doing something d if ferent. I have an ethical
complaint pending against me .
COUNCILMAN SALVER : That is why I was
asking .
COUNCILMAN GROISMAN : What I think is we
would be better off with another lawyer because of
all the reasons I stated. We would have better
counselling .
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ASSISTANT MAYOR COHEN: Now are you going
to change because it 's go ing to reflect on
yo u rself? I don't get it.
COUNCILMAN SANZ: I am going to say it
62
again because I have been around here. I saw some
residents make one of our members that was a
l awyer l ife mi serab l e. That man couldn't do
anything w ith out being repor ted to the ethics
commis s i on.
MR . WE I SS: To the Bar .
CO UNC IL MAN SANZ: To the Bar. That is what
I was saying . Because some of these people fight
really viciously.
ASS I STANT MAYOR COHEN: That is not my
concern rig h t now.
COUNC ILMAN SANZ: Patricia , let me finish .
Okay?
ASSISTANT MAYOR COHEN: Go ahead .
COUNCILMAN SANZ : That is why I was asking
you t hose things because you just came in and you
already h ave one complaint. I had one complaint
over nothing , bu t it still , you know , I don 't want
you t o be t he target.
care.
COUNCILMAN GROISMAN : Let me explain why I
I don 't care to be the target.
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COUNC IL MAN SANZ: Okay .
COUNCILMAN GROISMAN: You know what I care
abou t ? I care about keeping the eye on the goal
of what we are trying to do he r e.
63
I th i nk when we get comments, respectfu l ly,
from Seth saying why are we doing this, it's the
village, o r from you saying why are we spending
more money, we are already off the ta r get.
The target is what is the issue here. How
are we going to resolve it. We have a code that
is ambiguous. We have a d i strict that isn't
anyone else 's district. It 's the private
r ecreational dis t rict wi th a code that makes
absolute l y no sense. They are operating
commercially. They charge a thousand dollars a
day --okay? --t o someone that I know of in my
family t o put their boat t here for ten days. Paid
$10,000 to put their boat and t hey are operating
noncornmercially. They have 20 to 30 cars coming
in Saturday mornings for eac h boat. They
operate --and if you don 't think it affects the
neighborhood, the whole community, it a f fects al l
of Ba l Harbour . Those kind of cars coming in and
ou t , it affects everybody.
resu l t.
I care more about the
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ASSISTANT MAYOR COHEN: I a lign exactly .
think we should not, and it 's a perfect analogy .
Keep your eye on the bal l . We are here for a
64
I
reason. I t 's not about me or if I am going to get
attacked . Of course, I am going to get attacked.
I have already been attacked by the gentleman
according t o him . I shook him down.
I mean, you know , we have a pos ition. We
have a job to do. Let's do it. Let 's not be
worried about how I am going to shield myself,
they are going to say this or that . Let 's go
beyond the reasonable doubt and get this matter
exposed in whichever way it needs to be exposed.
And Gabe is going to be the tar get. Yeah.
Okay. So he is wi l ling to take it.
COUNCILMAN GROISMAN: I 'm in the complaint .
No one else is .
COUNCILMAN SALVER : I know . That is why I
brough t up my comment.
COUNCILMAN SANZ : Let's go for a vote .
It 's easy .
MAYOR PACKER: I don't think we have to
vote. I th ink basically what has been happening
now at table where Richard says we don't really
need a vote, I think there has been already now a
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consensus.
COUNCI LMAN SANZ: No , i t's not a conse n sus .
COUNCILMAN SALVER: I am s t ill undecided.
COUNCILMAN SANZ: He is still undecided,
yes.
COUNCILMAN GRO I SMAN: I think we should go
around and vote, n ot as a formal, to see where
everybody stands.
MR . GONZALEZ: L et me try to help. I h ave
no skin in the game here necessari l y, but Gabe is
a person who is named in this, and Gabe is t he
person who is fac i ng ethical challenges and
charges already, and he is the represe n tative in
t ha t district. So, you know, some discretion or
courtesy to that opinion is warranted .
You have heard from Richard where, you
know, he is releasing you of the concerns as fa r
as t his is in no way a slight or a lack of
confidence in their abi l ity. The truth of the
matter is they are go i ng to be in volved anyway
because, you know, o u tside counse l alone is not
going to be able to h andle this. There is a lot
of historical and so forth that Richard and his
fi r m are going to be involved in.
I think the question for whether you stay
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with Weiss Serota or bring outside counse l is
something that both Patricia and Gabe have
mentioned , which i s that critique that is out
there. Whether you use Richard, that will be
criticized. If you use someone else, it will be
66
criticized. But for a long time that critique is
out there . A fresh se t of eyes is something that
is warranted . Maybe this is your safe opportunity
to do that .
Everything that has been said about R i chard
I echo and support. Richard and I work well
together. I even mentioned I don 't want him
defending me anyway , so whoever you guys pick , I
assume Richard i s going to be in --
MR . WE I SS: There is some sort of a
compromise here which gives you guys a little bit
of cover is that we would bring somebody in as
sort of somewhat of an advisor or second set of
eyes, that we wo u ld continue to lit i gate the case,
but that we would b ri ng in somebody that you would
agree on.
MR . GONZA L EZ : Co-counsel .
MR . WEISS : You k n ow , I don 't know what you
would call it, Joe , that would sort of help us
develop strategy, work with us on strategy.
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MAYOR PACKER: Co-counsel.
MR . WEISS: I wouldn 't say co-counsel
because that starts to get to the problems, but
somebody that would come in and would be a fresh
set of eyes that could maybe give us some --
67
MR . SEROTA: Let me put i t this way. If we
are bringing in somebody else to do li t i gation, I
think it's double work. I think it wi ll cost you
double, but on the other hand I do think that what
you are going to need here is an expert . You are
go i ng to need an expert in land use, and while we
have experts w i th i n our firm, we are going to have
to hire an expert outside the firm. So that may
be a way of doing that where you still end up with
a di ff erent set of eyes because you are going to
have an expert witness. We need an expert
witness. We need somebody who is go i ng to
interpret this code . So tha t is really the way I
wo uld have it. To have somebody sitting nex t to
us --
COUNCILMAN GROISMAN : That is a good idea .
I agree that having a co-counsel isn't a good
idea .
money .
MR. WEISS : Because that is just double
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COUNCILMAN GROISMAN: Even if it 's not
double money . Let 's say it was free .
MAYOR PACKER : Someone that you were
suggesting , could that person or t hat fi rm have
someone in this l and use?
COUNCILMA N GROISMAN :
them off the tab le.
Sure , but I'm taking
MR . WEISS : We will find somebody.
COUNCILMAN GROISMAN: I can help you pick
68
somebody. I will give you my input . I know a lot
of guys. We can find someone we can agree on , but
I 'm taki ng Greenberg off .
MR . SEROTA : You are going to need an
expert witness in this case who is going to have
to testify whether this is in compliance or not .
MR . WEISS : Rather than getting a planner ,
we will get maybe a lawyer .
COUNCIL MAN GRO I SMAN : Joe , if you get an
expert to testify , because that is the ulti mate
issue here ; am I right? The expert is going to
testify as to the ult i mate --
MR . WEISS : T hat have been called before as
an expert on interpreting codes .
MR. SEROTA: Recent law says that experts
can testify on the ultimate issue .
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COUNCILMAN GROISMAN : Anyways it 's a bench
t rial so all that goes to waste .
MR . SEROTA: This is Norma Lindse y is the
judge. It 's a good judge.
COUNCILMAN GROISMAN : I t's going to take
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forever the case, though . Norma Lindsey , we have
a coup l e of cases in fron t of her .
hearing takes awhile .
Just to get a
MR . SEROTA : We just finished a case with
her, a tria l in wh i ch it was a l and use issue and
I think she eventually got it right, but the first
two days of trial we re very difficult in terms of
the way she was looking at it .
MR. WEISS: I think if you are l oo k ing fo r
a compromise kind of thing , bringing in a land use
attorney so that, Patricia , you wi ll be ab l e to
say that somebody else did l ook at this
independently, a well respected person, you don 't
have to dea l with the issues of why two kind of
things because it's part of the case .
I f you are looking for some sort of a
mid dle position, that wi l l give you some cover,
say , listen, we brought in this guy . He is th e
greatest guy ever i n the whole world about this
and he has looked at it and that may be li ke a
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compromise . I'm always looking for in this kind
of situation where I know that you a r e real torn,
some sort of position that maybe sat i sfies
everybody.
COUNCILMAN GRO I SMAN: I support that .
MAYO R P ACKER : Sounds good to me .
COUNCILMAN SALVER: Me too .
COUNCILMAN GROISMAN: I would like some
input sort of on who .
MR . WEISS : We will talk about it.
MR. SEROTA : We will talk to you , yes.
MR . GONZALEZ : Is that a direction you can
take for now? You don't need to bring that
selected firm?
MR . WEISS : When we hire somebody ,
depending upon the charges , Jorge , because you
have some authority now , right?
ASS I STANT MAYOR COHEN: If we give it to
him .
MR . GONZALEZ : Let 's just ask right now.
MR . WEISS: Normally , in litigation when we
need to hi r e experts , we don 't come back to the
council. It is just sort of part of the
litigation expense.
COUNCILMAN SA LVER : Is this government
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rates?
MR. WEISS: We always insist on the
government rate because we don 't think anybody is
worth more than us .
COUNCILMAN GROISMAN: Joe , if we are doing
a counterclaim, since if we are doing this right ,
I would like you to consider in the code, the code
specifically says that 40 percent of their
property has to be open green space, and sort of
what that means in the code . Because they have --
MR . SEROTA: Tha t is part of the
declaratory judgment . We would ask for it, you
mean?
CO UNCILMAN GROISMAN: Yes , exactly .
Because the way I read the code, it's no t rea lly
clear because their use was supposed to be --the
code is written for that entity to operate for the
benefit of the entire community.
MAYOR PACKER: Righ t.
COUNCILMAN GROISMAN: And, therefore, that
is why the re is a green space provis i on in there ,
so the community can use it.
ASSISTANT MAYOR COHEN: Of course. Enjoy
it, use it .
COUNCILMAN GROISMAN: Right now, 40 percent
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of that green space is around the cul -de-sac on
the water, right on the intracoastal .
look at it to draw a conclusion .
You have to
MAYOR PACKER : He claims that is private.
ASS I S T ANT MAYOR COHEN: All of it is
pr i vate to him .
COUNCILMAN GRO I SMA N: It 's private , but
i t 's green space . What I think is they have to
own it . The way I read it, they sti l l can own it,
but anyone in Bal Harbour should be able to access
since it's open green space.
ASSISTANT MAYOR COHEN : It used to be like
that for everyone when I lived in there.
they started changing their mind.
Until
COUNCILMA N SANZ: It used to be a club was
there .
COUNCILMAN GROISMAN : Right. This entity
that is operating now, correct me i f I am wrong ,
has been operating for a year and a half or two
years.
MR. GONZALEZ: Very recent.
COUNCIL MAN GROISMAN : This i sn 't the same
ent i t y .
ASSISTANT MAYOR COHEN: Everything is new .
COUNC I LMAN SANZ : Remember it was a club
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and even t h e people in the east s ide that be l onged
to t he club they could go in .
COUNCILMAN GROISMAN : That is something
that we need t o ask.
COUNCILMAN SALVER : At what point does the
counterclaim come int o p l ay?
MR . WE I SS : When we file an answe r .
MR. SEROTA : May 13th .
COUNC IL MAN SALVER : That is something tha t
we need t o discuss .
MR . WEISS: No . We are going t o --
MR . S ER OTA : Well, actually, that is a good
point.
MR. WE I SS: You can discuss i t.
MR . S E ROTA: We should . I me an, because
usual l y we need to get authorizat i on , right , to
file someth i ng.
COUNCILMAN GROISMAN : T o file a suit .
MR . SEROTA : So the counte r claim , just to
follow up wi t h Gabe 's sugges t ion , whi c h I t hi nk is
a good idea is to fi l e a cou nt erclaim seeking a
declaratory judgment. We might couch it in a
l ittle bit differen t words in terms even Gabe is
suggesting abou t the green space and how we dea l
w i th that , but asking the judge for a d e cla r ation
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about the enforceability . I think we would be
careful not to say that they are violating it.
could say there i s some doubt as to whether they
a r e violating it.
COUNCILMAN GROISMAN : If t hey are
violating , then we should start having code
enforcement.
MR. SEROTA: Right.
MR. GONZALEZ : We have a letter from
Richard say i ng we are not --
MR . WEISS : I n a draft memo .
MR . SEROTA : So we can ask the judge that
74
We
there is some doubt and uncertainty about whether
it 's being v i olated or not, and, therefo r e , we
want the court to seek a declaration . A litt l e
weird. I am not sure we have ever as k ed for suc h
a thing before.
MR. WEISS : It 's okay . It 's new staff.
MR . SERO T A : But you know what, there is
nothing wrong with that , and as Gabe is pointing
out if you all feel we are all dealing with the
words and the sections that existed before any of
us were here , we will get some explanation .
Now , again, you all need to understand you
may be careful what you ask for because you may
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get a response that you may not be happy wit h ,
which is one of the reasons I don 't t hink we have
ever done this before; t o ask th e judge t o
interp r et a village code.
MR. GONZALEZ : I think and Gabe mentioned
this earlier in conversation, t h is ambiguity needs
to be put t o bed one way or the other. Otherwise,
we have a bunch of residents who are clamoring for
some action .
ASSISTANT MAYOR COHEN : Everybody is coming
up with their own hypothesis. Everybody says
there is a conspiracy and it has been going on ,
how come this, you know.
MR . GONZALEZ : So resolving the ev i dence is
probably the best solution out of this whole
thing.
COUNCILMAN SALVER: Just go for it I say .
MR. SEROTA : Okay.
MR . WEISS: So we have agreed , one , that we
are not going to move to dismiss the complaint .
You are comfortable with tha t .
Number t wo, we ag r eed we are going t o hire
a l and use lawyer to work with us on the case to
give us a f resh v i ew of the case. And if it's all
right wi th you , you know , on terms of st r a t egy and
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stuff , I wou l d li ke permission to work with Gabe
on this so he i s sort of party to all.
COUNCILMAN SANZ : Over that, he seems to
know the most about at law.
COUNCILMAN GROISMAN : So everybody on
76
council k nows , because I haven't spoken to any of
you about t his, I d i d speak to Richard and Joe
before the complaint was filed, and I told t hem
what I thought and we agreed sor t of on whatever
everyone now agreed on as far as the counterclaim
and such. They said , okay , so we wi l l go forward.
So you a ll know, I said, no, I have to be able to
get everyone 's in put and make sure everyo n e agrees
on that strategy because t he way I look at it is
we are a board of sorts.
ASSISTANT MAYO R COHEN: That is right .
COUNCILMAN GROISMAN: The board has to meet
to decide what t he company should do . That is how
I look at it . So you know , as muc h as, yes , I
have had i n p ut , I am familiar with th i s stuff
COUNCILMAN SA NZ: You are mo re familiar
with it and you are familiar more being a l awyer
what can be done and what cannot be done.
space.
Now, I ha v e a qu estio n about th e green
Now, if this green space , that green space
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is only for t he residential area or that green
space is in the
ASSISTANT MAYOR COHEN : No , I think it I s
counted in the Bal Harbour comprehensive p l an.
COUNCILMAN GROISMAN : I have no idea.
ASS I S T ANT MAYOR COH E N : It is coun t ed.
COUNCILMAN SANZ : I don 't know.
MAYOR PACKER : Richard, go ahead.
MR. WEISS: Jamie , wha t is your question?
COUNCILMAN SANZ : The green space that he
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claim that is green space, that i s for the
residential area or for Bal Harbour Village green
space .
MR . WEISS : It depends upon what when
you say the word for. For the purpose of our
comprehensive plan , t ha t is counted for the
purposes you have to have a certain amount of
green space in your community .
do with --
I t has noth i ng to
COUNCILMAN SANZ : Who can use it .
MR. WEISS : R i ght , right . It has nothing
to do with who can use it . It just says you have
to have a certain amoun t of green space .
If you are talking about green space , the
40 percent and all of that , the issue does it have
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to be green versus who can use it are two separate
i ssues .
Okay . I think we are ready to read the
rest of it, mayor .
MAYOR PACKER: I am going to reopen the
public meeting.
The attorney/client session has now been
terminated and members of the genera l public are
now invited to return for any further proceedings
or matters.
Meeting is now adjourned.
(Thereupon, the proceedings were concluded
at 7 :25 p .m .)
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C E R T I F I C A T E
5 I, Mary G . Stephenson , FPR, S t ate of Florida at
6 Large , certify that I was authorized to and did
7 stenographically report the foregoing p r oceedings and
8 that the transcript is a true and comple t e record of my
9 stenographic notes .
1 0
11 Dated this 12th day of August , 2015 .
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---------enson , FPR
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