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HomeMy Public PortalAbout2015-04-08 AttorneyClient In The Matter Of Bal Harbour Yacht Club CASE 15-6568CA301 2 3 4 5 6 7 8 9 10 11 12 13 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 16 17 18 19 20 21 22 23 24 25 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 1 1 APPEARANCES: 2 COUNCILMEMBERS: 3 MARTIN PACKER, MAYOR PATRICIA COHEN, ASSISTANT MAYOR 4 GABRIEL GROISMAN SETH E . SALVER 5 J AIME M. SANZ 6 7 VILLAGE MANAGER: 8 JORGE M. GONZALEZ 9 10 11 12 13 14 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) 17 18 19 20 21 22 23 24 25 TAYLOR REESE AND ASSOCIATES, INC . (305) 444-7331 2 3 1 Thereupon, the following proceedings were had: 2 3 4 5 6 7 8 9 10 11 1 2 13 14 15 16 17 18 19 20 2 1 22 23 24 25 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 , TAYLOR REESE AND ASSOCIATES, INC. (305) 444-7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4 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 TAYLOR REESE AND ASSOCIATES, INC . (305) 444-7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 5 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 TAYLOR REESE AND ASSOCIATES , I NC. (305) 444 -7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 2 1 22 23 24 25 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 6 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 . TAYLOR REESE AND ASSOCIATES, INC. (305) 444-7331 1 2 3 4 5 6 7 8 9 10 11 12 13 1 4 15 16 17 18 19 20 21 22 23 24 25 7 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 TAYL OR REESE AN D ASSOC I ATES, INC. (305) 444-7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 they are both p la i ntiffs. MR . WEISS : That is what they say. MR. SEROTA: That i s what they say . 8 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 That 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 TAYLOR REESE AND ASSOCIATES , I NC . (305) 4 4 4 -7 331 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 10 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 TAY LOR REESE AND ASSOCIATES, I NC . (305) 444 -7331 1 2 3 4 5 6 7 8 9 1 0 11 12 13 14 1 5 16 17 18 19 20 21 22 23 24 25 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 1 1 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. TAYLOR RE ESE AND ASSOCIATES, INC. (305) 444 -7 33 1 1 2 3 4 5 6 7 8 9 10 11 1 2 1 3 1 4 15 16 17 18 19 20 2 1 22 23 24 25 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 12 On 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 . TAY LOR RE ES E AND ASSOC I ATES , INC . (305) 444-7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 13 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 TAYLOR REESE AND ASSOCIATES , INC. (305) 444-7331 1 2 3 4 5 6 7 8 9 10 11 12 13 1 4 1 5 1 6 17 18 19 20 21 22 23 24 25 14 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 So 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. TAYLOR REESE AND ASSOCIATES, INC . (305) 444-7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 1 5 16 17 18 19 20 21 22 23 24 25 15 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 . TAYLOR REESE AND ASSOCIATES, INC. (305) 444 -7 331 1 2 3 4 5 6 7 8 9 10 11 12 1 3 1 4 15 16 17 18 19 20 21 22 23 24 25 16 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 TAYLOR REESE AND ASSOCIATES, INC. (305) 444-7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 1 8 1 9 20 2 1 22 23 24 25 17 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 TAYLOR REESE AND ASSOC I ATES , I NC . (305) 444-7331 1 2 3 4 5 6 7 8 9 . 0 . 1 . 2 .3 .4 .5 .6 .7 . 8 .9 18 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? TAYLOR REESE AND ASSOCIATES, INC. (305) 444-733 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 . 19 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. (305) 444 -7331 I said, I 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 20 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 . TAYLOR REESE AND ASSOCIATES, INC . (305) 444-7331 That was 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 21 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 TAYLOR REESE AND ASSOCIATES, INC. (305) 444 -7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 22 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 TAYLOR REESE AN D ASSOCIATES , I NC. (305) 444-7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 1 5 16 17 1 8 19 20 21 22 23 2 4 25 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 23 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? TAYLOR REESE AND ASSOCIAT ES, INC . (305) 444 -7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 24 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 TAYLOR REESE AND ASSOCIATES , INC. (305) 444 -7331 1 2 3 4 5 6 7 8 9 1 0 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 25 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 TAYLOR REESE AND ASSOCIATES, INC. (305) 444-7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 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 TAYLOR REESE AND ASSOCIATES, INC . (305) 444-7331 1 2 3 4 5 6 7 8 9 10 1 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 27 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 TAY LOR REESE AND ASSOCIATES , INC . (305) 444-7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 TAYLOR REESE AND ASSOC I ATES, INC. (305) 444-7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 29 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 . TAYLOR REESE AND ASSOCIAT ES, INC. (305) 444 -7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 1 5 16 17 18 19 20 21 22 23 24 25 30 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 TAYLOR REESE AND ASSOC IATES , I NC. (305) 444-7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 TAYLOR REESE AND ASSOCIATES , INC. (305) 444-733 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 32 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 TAYLOR REESE AND ASSOCIATES , INC. (305) 444 -7331 1 2 3 4 5 6 7 8 9 10 11 12 13 1 4 15 16 17 18 19 20 21 22 23 24 25 33 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 TAYLOR REESE AND ASSOCIATES, INC . {305) 444-7331 1 2 3 4 5 6 7 8 9 10 1 1 12 13 14 15 16 17 18 1 9 20 21 22 23 24 25 34 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 . TAYLOR REESE AND ASSOC I ATE S , I NC . (305) 444 -7331 1 2 3 4 5 6 7 8 9 10 1 1 12 13 14 1 5 16 17 18 19 20 21 22 23 24 25 35 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 TAYLOR REESE AND ASSOC I ATES, INC . (305) 444-7 331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 TAYLOR RE ESE AND ASSOCIATES, I NC. (305) 444-7331 1 2 3 4 5 6 7 8 9 10 1 1 12 13 14 1 5 1 6 1 7 1 8 19 20 2 1 22 23 24 25 37 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 TAYLOR REESE AND ASSOCIATES, INC . (305) 444-7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 1 5 16 17 18 19 20 21 22 23 24 25 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 TAYLOR REESE AND ASSOCIATES , INC. (305) 444-7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 1 9 20 21 22 23 24 25 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 TAYLOR REESE AN D ASSOCIATES, INC . (305) 444-7331 1 2 3 4 5 6 7 8 9 10 11 1 2 13 14 15 16 17 18 19 20 2 1 22 23 24 25 40 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 TAYLOR REESE AND ASSOC I ATES, INC . (305) 444 -7331 1 2 3 4 5 6 7 8 9 10 1 1 12 13 14 15 1 6 17 18 19 20 21 22 23 24 25 41 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 . TAYLOR REESE AND ASSOCIATES, INC. (305) 444 -7331 1 2 3 4 5 6 7 8 9 10 1 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 42 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 -- TAYLOR REESE AND ASSOCIATES, INC . (305) 444 -7331 1 2 3 4 5 6 7 8 9 10 1 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 43 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. TAYLOR REESE AN D ASSOC I ATE S, INC . (305) 444-7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 TAYLOR REESE AND ASSOC I ATES, INC. (305) 444-7331 1 2 3 4 5 6 7 8 9 10 11 12 13 1 4 15 16 17 18 1 9 20 21 22 23 24 25 45 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 TAYLOR REESE AND ASSOCIATES, INC. (305) 444-7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 1 6 17 18 19 20 21 22 23 24 25 46 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. TAYLOR REESE AND ASSOCIATES , INC. (305) 444 -7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 47 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 , TAYLOR REESE AND ASSOCIATES, INC. (305) 444 -7 33 1 1 2 3 4 5 6 7 8 9 10 1 1 12 1 3 14 15 16 17 18 1 9 20 21 22 23 24 25 4 8 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 TAYLOR REESE AND ASSOCIATES, INC . (305) 444-7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 -- TAY LOR REES E AND ASSOC I ATES, INC. (305) 444 -7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 1 5 16 17 18 19 20 21 22 23 24 25 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 TAYLOR REESE AND ASSOCIATES, INC. (305) 444-7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 1 6 17 18 19 20 21 22 23 24 25 51 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 . TAYLOR REESE AND ASSOCIATES, INC. (305) 444 -7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 2 4 25 52 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 TAYLOR REESE AND ASSOCIATES , INC. (305) 444-7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 -- TAYLOR REESE AND ASSOCIATES, INC . (305) 444 -7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 1 9 20 21 22 23 24 25 ASSISTANT MAYOR COHEN : Anything. Anybody he lets in there. COUNCILMAN GROISMAN : --or someone who is 54 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 TAYLOR REESE AND ASSOCIATES, INC. (305) 4 4 4-7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 -- TAYLOR REESE AND ASSOCIATES, INC. (305) 444 -7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COUNCILMAN SALVER: That is because we are the agent of the security district. 56 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. TAYLOR REESE AND ASSOCIATES, INC. (305) 444-7331 It 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 57 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 TAYLOR REESE AND ASSOC I AT ES , I NC . (305) 444-7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 58 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. TAYLOR REESE AND ASSOCIATES, INC. (305) 444 -7331 1 2 3 4 5 6 7 8 9 10 1 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 59 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 TAYLOR REESE AND ASSOC I ATES , INC . (305) 44 4 -7331 1 2 3 4 5 6 7 8 9 10 1 1 12 13 14 15 16 17 1 8 1 9 20 21 22 23 24 25 60 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 TAYLOR REESE AND ASSOCIATES, INC. (305) 444 -7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 . TAYLOR REESE AND ASSOC I ATES, INC. (305) 444-7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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. TAYLOR REESE AND ASSOC I AT ES , INC . (305) 444-7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 1 7 18 19 20 21 22 23 24 25 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 TAYLOR REESE AND ASSOCIATES, I NC. (305) 444-7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 1 5 16 17 18 19 20 21 22 23 24 25 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 TAYLOR REESE AND ASSOCIATES, INC. (305) 444-7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 1 7 18 19 20 21 22 23 24 25 65 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 TAYLOR REESE AND ASSOCIATES, I NC. (305) 4 4 4 -7331 1 2 3 4 5 6 7 8 9 10 11 12 13 1 4 15 16 17 18 19 20 21 22 23 24 25 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. TAYLOR REESE AND ASSOCIATES , INC. (305) 444 -7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 TAYLOR REESE AND ASSOCIATES, INC . (305) 444 -7331 1 2 3 4 5 6 7 8 9 10 1 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 . TAYLOR RE ESE AND ASSOCIATES, INC. (305) 444 -7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 69 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 TAYLOR REESE AND ASSOCIATES , INC. (305) 444-7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 70 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 TAYLOR REESE AND ASSOCIATES, INC . (305) 444 -7331 i 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 71 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 TAYLOR REESE AND ASSOCIATES, INC . (305) 444-7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 1 6 1 7 18 19 20 21 22 23 24 25 72 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 TAYLOR REESE AND ASSOCIATES , INC . (305) 444-7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 73 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 TAYLOR REESE AN D ASSO CIATES , INC. (305) 444 -7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 1 6 17 18 19 20 21 22 23 24 25 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 TAYLOR REESE AND ASSOCIATES , INC . (305) 444 -7331 1 2 3 4 5 6 7 8 9 10 11 1 2 1 3 1 4 1 5 1 6 1 7 1 8 19 20 21 22 23 24 25 75 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 TAYLOR REESE AND ASSOCIATES, INC. (305) 444 -7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 2 3 24 25 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 TAYLOR RE ESE AND ASSOCIATES , INC. (305) 444-7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 1 8 19 20 21 22 23 24 25 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 77 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 TAYLOR REESE AND ASSOCIATES , INC . (305) 444 -7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 78 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 .) TAYLOR REESE AND ASSOCIATES, INC . (305) 444 -7331 1 2 3 4 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 . 12 13 14 15 16 1 7 18 1 9 20 21 22 23 24 25 ---------enson , FPR TAYLOR REESE AND ASSOCIATES , INC . (305) 444 -7331 79