HomeMy Public PortalAbout2016-12-07 AttorneyClient In The Matter Of Bal Harbour Yacht Club - CASE 15-6568CA30Page 1
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BAL HARBOUR VILLAGE
ATTORNEY/CLIENT SESSION
ORIGINAL
IN THE MATTER OF BAL HARBOUR YACHT CLUB, INC., et al v.
14 BAL HARBOUR VILLAGE
15 CASE NUMBER: 15-6568 CA 30
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BAL HARBOUR VILLAGE HALL
655 96th STREET
BAL HARBOUR, FLORIDA 33154
WEDNESDAY, DECEMBER 7, 2016
7:35 p.m. - 8:49 p.m.
Taken before Mary G. Stephenson, FPR, Notary
Public for the State of Florida
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APPEARANCES:
COUNCILMEMBERS:
GABRIEL GROISMAN, MAYOR
SETH E. SALVER, ASSISTANT MAYOR
DAVID ALBAUM, COUNCILMAN
PATRICIA COHEN, COUNCILWOMAN
JEFFREY FREIMARK, COUNCILMAN
VILLAGE MANAGER:
JORGE M. GONZALEZ
VILLAGE ATTORNEY:
WEISS SEROTA HELFMAN
12 PASTORIZA COLE & BONISKE, P.A.
BY: RICHARD JAY WEISS, ESQ.
13 JOSEPH SEROTA, ESQ.
SUSAN TREVARTHEN, ESQ.
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VILLAGE CLERK:
DWIGHT S. DANIE
(Present only during public session.)
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1 Thereupon, the following proceedings were had:
2 MAYOR GROISMAN: Good evening. I'm calling
3 this meeting to order.
4 Get a roll call.
5 MR. DANIE: Yes. Roll Call.
6 Mayor Groisman.
7 MAYOR GROISMAN: Here.
8 MR. DANIE: Assistant Mayor Salver.
9 ASSISTANT MAYOR SALVER: Here.
10 MR. DANIE: Councilman Albaum.
11 COUNCILMAN ALBAUM: Yes.
12 MR. DANIE: Councilwoman Cohen.
13 COUNCILWOMAN COHEN: Here.
14 MR. DANIE: Councilman Freimark.
15 COUNCILMAN FREIMARK: Here.
16 MR. DANIE: We have a quorum.
17 MAYOR GROISMAN: The time is now 7:35 p.m.
18 We are about to have an attorney/client session in
19 accordance with Florida Statute 286.011 regarding
20 the litigation styled Bal Harbour Yacht Club,
21 Inc., and Flamingo Way Enterprises, LLC versus Bal
22 Harbour Village, Case Number 15-6568 CA 30.
23 The session is estimated to last about
24 30 minutes and the following people will be in
25 attendance at this meeting: Myself, Mayor Gabriel
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Groisman, Assistant Maycr Seth Salver,
Councilmember Jeff Freimark, Councilmember David
Albaum, Councilwoman Patricia Cohen, Village
Manager Jorge Gonzalez, and three of our village
attorneys, Richard Weiss, Joe Serota, and Susan
Trevarthen.
The proceedings will be recorded by a
certified court reporter who is here with us and,
at the conclusion of all litigation discussed, the
transcript will be made part of the public record.
All those individuals who I have not named
should leave the room at this time.
(Thereupon, Mr. Danie left the room.)
MR. WEISS: Just for purposes of
clarification, we are going to have three separate
executive sessions tonight. We don't have to
move, but we have to go through the formalities
because if we combine them together, even though
they are sort of related, at the end of the
litigation, the transcript becomes public and it
is possible that one of the pieces of litigation
gets settled and the other one doesn't.
So, therefore, we wouldn't want what we say
about one case to then become public. So on
the -- I'm going to call it the yacht club
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1 platting issues, we are going to have two separate
2 executive sessions dealing with that so that we
3 don't end up with that problem.
4 So you read the title to the first
5 executive session. So let's do that. Everybody
6 else has left the room.
7 Just by way of a little background on
8 the -- I'm going to call it the yacht club case.
9 MR. SEROTA: Richard, before, you want to
10 talk about the executive session a little bit or
11 not?
12 MR. WEISS: Sure. Go ahead.
13 MR. SEROTA: Just for the new council
14 people, an executive session, 286.011, is an
15 exception to the Sunshine Law. It allows us to
16 talk openly attorney/client about these cases as
17 we would with any other client.
18 Everything that you say here remains
19 confidential, the court reporter is recording
20 everything, until the case is over. When the case
21 is over and resolved, whether through settlement
22 or through litigation, then this does become
23 public.
24 So the point is you can be -- you should be
25 comfortable in saying and asking whatever you
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want. It is, as I say, protected by
confidentiality, but at the same time, recognize
that everything I say and everything you say will
ultimately be made public.
MR. WEISS: It is not unusual -- when it's
made public it becomes public record.
MR. SEROTA: Right.
MR. WEISS: It's not unusual after
litigation is done for us to get a public records
request for a copy of the transcript. That has
happened here.
So, again, say what you need to say, but
just be mindful of the fact that it becomes
public.
MAYOR GROISMAN: I have a question for
clarification.
Is it the case that if someone, if one of
the members of the council, if we disclose what
happens, what was said in this meeting before the
conclusion of the litigation, so before it's made
public, we risk waiving attorney/client privilege
entirely for this?
MR. SEROTA: Actually, that was the next
thing I was going to say. You are correct.
That is this is, again, no different than
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1 an attorney/client situation if it was just
2 one-on-one, and that is if you speak to other
3 people outside of this room, outside of the
4 manager, outside of the attorneys, then that could
5 be deemed a disclosure, a breach of the privilege
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for everybody. So that this session could become
public or become a public record should you speak
about what is said here to people other than the
people in this room. All right?
MR. WEISS: I just want you to know
particularly -- that is a good rule for
everything, particularly when you are dealing with
people that are aggressively litigating with us,
extremely aggressively.
If they hear from someone that you have
spoken with somebody outside this room, i.t would
not at all be beyond the way this litigation has
gone for them to then say that the whole executive
session has become public.
So by way of background --
MS. TREVARTHEN: Did we talk about the
scope? The purpose of this session is that it's
only attorney's fees and strategy for settlement.
This is not an open season to talk about
anything in the world. It's only to talk about
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1 strategy, attorney's fees and possibilities for
2 settlement.
3 MR. WEISS: By way of background on the
4 yacht club case, the village council had been
5 receiving complaints from people in the
6 residential area regarding what was going on at
7 the yacht club. They asked us to do an opinion
8 based upon the information we had as to whether
9 the yacht club was operating legally.
10 COUNCILMAN FREIMARK: They who?
11 MR. WEISS: They the council. We wrote an
12 opinion based upon the information that we had,
13 which was extremely limited. We didn't have
14 financial information. We didn't have a lot of
15 other information about how their members were
16 admitted. We didn't really have a lot, but based
17 upon what we had, we really didn't see any kind of
18 case that we had for saying they were operating
19 illegally
20 Almost simultaneously with us issuing that
21 opinion, which was somewhat favorable to the yacht
22 club, they filed suit against the village asking
23 for a declaratory judgment as to whether they are
24 operating legally.
25 I wanted to give you that background.
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Basically, at the moment we issued the opinion --
ASSISTANT MAYOR SALVER: I don't even think
ever became public.
MR. GONZALEZ: IL never became public.
ASSISTANT MAYOR SALVER: They requested the
draft.
MR. GONZALEZ: Right.
MR. WEISS: So go ahead, Joe.
MR. SEROTA: That is the background. Let
me just talk to you a little about the case.
The litigation has been going on for a
little over 18 months. The yacht club has taken
very strong positions. They have fought all
discovery. They have challenged us on everything
that we have requested. The court has granted us
quite a few documents, financial documents, which
we have reviewed. Other documents we have
requested, quite a few, actually, tha7, they still
refuse to give us. We have a motion to compel
that, actually, is not scheduled until the spring.
So we are still in the process of
discovery, but we have persisted. 'Je have also
pursued our position quite aggressively, and we
have made some very positive progress in terms of
what we found.
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MR. GONZALEZ: You might want to clarify
that. We then countersued.
MR. SEROTA: Right. They sued us for
declaratory judgment. We countersued for
declaratory judgment.
You may say why did we do that. We did
that because this was our opportunity to find out
about their operation. If they had filed a
dismissal of their case, the case would have been
over. That is why we filed.
Strategically, we filed a counterclaim
because that way it prevented them from simply
giving up their case.
MR. WEISS: We were concerned when we gave
them a hundred pages of interrogatories to look
at, that they would say, we bit off more than we
could chew and dismiss the case, in which case we
would have lost the opportunity to really find out
about their operation.
MR. SEROTA: Our first request for
production was more than 120 categories of
documents that we requested from them.
COUNCILWOMAN COHEN: What was that original
date? Excuse me.
MR. SEROTA: Of what?
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1 COUNCILWOMAN COHEN: When did we initiate
2 all this?
3 MAYOR GROISMAN: When did we file?
4 MR. SEROTA: They filed the lawsuit in
S March of 2015. We filed a counterclaim soon
6 after.
7 That is setting up the pleadings. Now, the
8 key issue, the key issues in this case is whether
9 the yacht club is operating in compliance with the
10 existing zoning. Is it a commercial marina or is
11 it a club? Is it a marina that is permitted?
12 That is one question.
13 MAYOR GROISMAN: Nonprofit, right?
14 MR. SEROTA: Right, nonprofit.
15 MR. WEISS: Noncommercial.
16 COUNCILMAN ALBAUM: How long were they
17 operating like that?
18 MR. SEROTA: They have been operating it
19 just for a couple of years, actually, which leads
20 me to my second point, which the other question is
21 whether the marina, the prior marina use was
22 abandoned according to Florida law in other words.
23 If it was abandoned, you can't have a new
24 marina in a residential area unless it's limited
25 to the residents.
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1 COUNCILMAN FREIMARK: So can you take a
2 step further back then and provide a bit more of
3 the history? Because now there is the concept of
4 a prior marina and a current marina.
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MR. WEISS: Let me go back. Part of this,
this is obviously from memory. When the village
was originally -- Patricia, if I make a mistake on
this, correct me.
When the village was originally formed, it
was formed by a bunch of friends. They are, I
think, from Detroit.
COUNCILWOMAN COHEN: Detroit.
MR. WEISS: They are from Detroit.
Basically, they had two social establishments as
part of the village. One was called the yacht
club and one was called the beach club, and
everybody that moved in here was wart of the yacht
club and the beach club. That spline that runs
down the center from the yacht basin all the way
now to the Oceania, that was sort of the pathway
to the beach club. For years and years and years
that is sort of the way it operated.
The yacht club portion of it was operated
as a club. There was a building where that big
vacant lot is.
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1 MAYOR GROISMAN: You can see it there.
2 MR. WEISS: You can see it on the picture.
3 Right on the peninsula, right there. It was a
4 country club. They had parties and they had bars.
5 I don't think they had too many Bar
6 Mitzvahs there because Jews were not allowed, but
7 had there been a lot of Jews, they would have had
8 Bar Mitzvahs there. But they had all sorts of
9 affairs there and so forth.
10 The yacht club was an ancillary part of
11 this whole social scene. Eventually, the
12 oceanfront portion was sold. Then you just had
13 MAYOR GROISMAN: You missed one.
14 COUNCILWOMAN COHEN: First, they tore down
15 the yacht club.
16 MAYOR GROISMAN: First, the yacht club,
17 which was owned by many people, had a litigation
18 and it ended being purchased or whatever.
19 MR. GONZALEZ: Consolidated. Consolidated
20 the ownership.
21 MAYOR GROISMAN: To the Imbesis, to the
22 current owner.
23 COUNCILWOMAN COHEN: Then they tore it up.
24 MR. GONZALEZ: Then they started to carve
25 out essentially. So they sold the ocean part
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side.
So you ended up with a place where, I like
the analogy, you used to have a dog, and now you
have the tail and the rest is dog has kind of been
sold off. So is this tail still qualifying as a
legitimate operation per the code when you carved
out kind of the big piece?
COUNCILWOMAN COHEN: And under the code,
it's recreational.
MR. WEISS: The piece that Joe was getting
to is under our village code, new marinas have
their own section. New marinas can only operate
in the business district, and this is not in the
business district, and must serve only the
residents.
MAYOR GROISMAN: Correct me if T'm wrong.
The purpose and the intent behind that, from what
I understand, is because the marina that was there
was only for the residents. They are saying if
you are going to make a new marina, it also has to
be only for the residents, correct?
MR. SEROTA: There's two things, Richard.
You can have two kinds of marina. You can have a
new public use marina, but that is only in the
business zoning district, or you can have
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nonpublic use -- just reading your code here. Or
you can have a nonpublic use marina like this and
that can be in the residential zoning like this.
However, and then only if use of the docking
facilities are limited to use by residents.
So this could be a legal -- it could be a
new marina, a nonpublic use marina, but it would
be limited to just people that are resident in
that area.
COUNCILWOMAN COHEN: Which is not the case
at all.
MAYOR GROISMAN: The vast majority of
people are not from around there.
COUNCILMAN ALBAUM: How did this even
MAYOR GROISMAN: It appears to be operating
like from the outset like a business. He has it
registered as a not -for-profit. That is my
understanding.
MR. GONZALEZ: That is a tax status.
MAYOR GROISMAN: Right.
MR. WEISS: The first point that Joe was
talking about is that it's operating as a
commercial marina. It's not disputed.
The second one is that the old marina
discontinued operation when the whole thing was
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sold, and that basically when they formed this
not -for-profit, when they started operating this
way, that is a brand new marina which comes under
the new marina regulations, which must be, if it's
going to be in that area, for residents only.
Those are the two legal issues.
MAYOR GROISMAN: Residents of Bal Harbour
over all, right?
COUNCILWOMAN COHEN: It doesn't specify
residents in --
MS. TREVARTI-IEN: It means residents in Bal
Harbour, and goes back to 1990.
COUNCILWOMAN COHEN: 1990?
MR. WEISS: It's happened really by
inertia.
MR. GONZALEZ: This is an evolutionary
process.
MR. WEISS: Evolutionary.
COUNCILMAN ALBAUM: We didn't try to stop
it, like, initially?
MR. WEISS: The first time I heard anything
serious about this was at the time in 2015. We
did have people that had been complaining, but the
first time it got sort of serious to the point
where it came to the council and the council asked
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us to do something was in 2015.
MR. GONZALEZ: I suspect in response to
some of the rumors or murmurs that they were
hearing, they came to the village and applied for
a business tax receipt. I said, there is no such
category. We are not going issue a business tax
receipt to an entity that we may not know that, in
fact, it is operating properly. So that is really
when the ball started rolling.
MS. TREVARTHEN: And we spent a lot of time
trying to figure out what we could through the
public information. That is why the discovery was
so important to get to the other information.
MR. WEISS: The council wanted us to
initiate code enforcement proceedings against the
marina, but under code enforcement, we have to be
able to prove that they are doing something wrong.
The reason that we did our analysis was to
see whether we had a case to make against them.
Our conclusion was that based on the information
that we had and we had to follow a code
enforcement case in good faith, we didn't have
enough information. So we were sort of stuck, and
then all of a sudden this lawsuit comes out of the
blue, and we say, wow, this is great. We have a
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great opportunity here to get all the information.
found.
So, Joe, why don't you tell them what we
MR. SEROTA: Right. Well, first of all,
just so you understand the context, which is our
opinion. Our opinion was that the evidence
supports the view, the evidence we have, that the
marina operation is not commercial. To determine
whether there is commercial use, we are required
to investigate into where the money goes, the
books, the records, the accounting information,
and might require an investigation into the legal
entities, including the record books.
These record books are likely not readily
available to the village and the only manner that
access could be granted would be through an action
for declaratory judgment. The success of which is
by no means a certainty with regard to yielding
the type of information.
So talk about being prescient. This is
what we wrote March 17th. Within weeks -- now
this wasn't public at that time. Within weeks of
this, there is a declaratory judgment.
COUNCILMAN ALBAUM: That he?
MR. SEROTA: They filed it. Not us. They
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filed it. Which was exactly what we said was
needed to find out.
But keep in mind that our initial thing was
from what we see, it appears that it's
noncommercial.
So that is the background, what has
happened so far in the litigation.
We requested many internal financial
documents. Some have been produced and, as I
said, some we are still pushing for. We have
taken depositions of the Imbesis. The father, the
wife, the son, the dockmaster, a number of people,
not everybody yet. We took a number of their
depositions.
They took depositions of -- I was going to
say everybody around this table, but not everybody
around this table. All the council people.
Where we are in the litigation is we are
waiting for these documents. We have hired an
expert, a financial expert to help us to determine
if this is a proper nonprofit, noncommercial, and
the way that they are operating.
For example, are they paying salaries or
are they distributing profits at the end of the
year.
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COUNCILMAN FREIMARK: As a nonprofit, are
they not required to file public returns.
MR. GONZALEZ: They are not a 501;c)(3).
ASSISTANT MAYOR SALVER: They are just a
Florida state.
COUNCILMAN FREIMARK: They are just a
Florida nonprofit. So it's not an IRS
determination.
MR. GONZALEZ: Exactly.
MR. SEROTA: This is what we have done so
far. Through this discovery, we have come up with
some very good information which raises questions
about the current use. Again, if it's really
noncommercial.
Just to give you a flavor of some of the
things that we have gotten. Keep in mind that is
in a club district. This is supposed to be a
club, social activities. That was really what was
intended and that was the use before. We found
that they really have no organized club -like
activities. They are not really involved in
social activities at all. There is no real
membership criteria. The financial documents are
a bit of a mess, but it appears that the salaries
may be excessive for a not -for-profit of this
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size. We are moving to compel additional
information abcut that.
Year-end payments may just be dividends
disguised as salary, and that is one of the things
that we are looking into. Okay? If it looks like
you are distributing profits at the end of the
year, that looks like a profit. If you are paying
people reasonable salaries at the end of the year,
again, that is what you are supposed to do.
MR. WEISS: By the way, they employ Joe
Imbesi's son, Joe Imbesi's wife, Joe Imbesi's
daughter.
MR. SEROTA: Then the question is, is this
really a club. Is there really members.
Membership benefits are very limited. Imbesi
couldn't even remember the names of rejected
applicants. Now, again, you don't need to reject
people, but if you just simply you sign your name
and you write a check, that looks like a
commercial marina.
If you have some way of reviewing people as
to whether they are really members of a social
club or a yacht club, that is something else.
MR. WEISS: The theory that we are
proceeding on basically with regard to that issue
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is, he was operating however he was operating. He
got a bunch of lawyers together, put lipstick on a
pig, and basically formed a not -for-profit, and
has tried to make it look like it is operating as
one, but really the operation has never changed
since for profit. So what we have been trying to
pursue is, you know, is this thing really
operating a not -for-profit.
COUNCILMAN ALBAUM: What is the actual
source of income that is coming in?
MR. WEISS: Rentals. Boat rentals, slip
rentals.
MR. GONZALEZ: Membership dues.
COUNCILMAN ALBAUM: Do we know :pow much
money is coming in on an annual basis?
MR. SEROTA: We have a lot of that
information and some we don't.
Let me talk to you about things that we
have requested that we have moved to compel.
Member information for the yacht club. I mean,
really, we didn't get any, which has to do with is
this really a club or is it just commercial.
Financial documents, 2013. This was before the
turnover and we want to see, again, did one use
cease, did the operation close down. We also have
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underlying documents supporting their QuickBooks
accounting records. I mean, they gave us
accounting records, but not necessarily underlying
documents, which we need. So that is just a
flavor of what we are looking for.
Now, in terms how it's going, we believe or
I can say I believe that their enthusiasm for the
case has been waning. I think in the beginning
they felt, you issued a legal opinion saying, we
think it's noncommercial based on the information
we have. So you file a declaratory judgment.
This is a slam dunk, that the city attorney has
already said this. It's a slam dunk, but the
reality is we have always stood by the opinion we
gave, which is once we get this information, it
may be different.
So now when we go into the information,
they are recognizing that this is not such a slam
dunk. I mean, during the deposition of the mayor,
at every break, you know, Joe Imbesi I mean,
Tony Imbesi was talking about, you know, can't we
resolve this thing. Why are we pursuing this
thing. This is so expensive. Because one of the
things they were asking the mayor was questions
about what information do you have that this is
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noncommercial. Well, at that time, Gabe was able
to talk about some of the things that I have
talked about, which is not like we know it is. We
are just saying this is information, which
certainly gets past, you know, like what is called
a summary judgment, that there is no factual
issues. There certainly is.
So that is really the status of the case.
Although, as I say, the expert depositions have
not even begun, which are really critical in this
case because it's a matter of opinion of experts
to talk about does this qualify or noL.
Ultimately, it's the judge's decision, but expert
opinion is relevant.
MAYOR GROISMAN: Have you set an expert
discovery schedule?
MR. SEROTA: No, because we are waiting for
the documents before we do that. We haven't set
it yet.
MAYOR GROISMAN: The first available
hearing is in the spring.
MR. SEROTA: Right, in the spring. So we
are at kind of a standstill, although we are on a
waiting list in case anything gets canceled to go
in before.
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MR. WEISS: The last piece is that we had
an executive session before.
MR. SEROTA: Let me get there.
Our expert is Robert Stone from Kaufman
Rossin, who is an excellent witness, who has been
helping and guiding us and ultimately would
probably be our expert witness.
As I say, there is also some fact witnesses
that still need to be taken, and then, as I say,
these expert witnesses. We have no trial date.
You want me to get into some of the costs
what has been involved or should we wait?
MR. WEISS: Let me say where we are and
then if you have questions about the costs we can
answer them.
MR. GONZALEZ: What prompted the last
executive session, if you recall, is that just
before that Mr. Imbesi acquired, through
quitclaim, park spaces and then turned over and
made an offer to us that, you know, we will pass
these on to the village if you agree. So that led
us to an executive session.
MAYOR GROISMAN: I know that some residents
have filed an opposition to that, really a motion
to reverse the approval of the sale, the quitclaim
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because no notice was given to those people who
have a claim or any potential claim to that
property. That was scheduled for a hearing, I
think, two weeks ago, but because of what Richard
is about to talk about, they were asked if they
would put off the hearing to see if there is a way
to reach a resolution.
MR. WEISS: So at the last executive
session, the three of you were there. Oh, you
weren't there, the two of you. The council
authorized ourselves and the manager to see
whether, because we have the other lawsuit, which
I am going to call the platting lawsuit to keep it
separate. We have these two lawsuits going on
with the Imbesi group.
The council authorized the manager and us
to go ahead and see if there was some way we can
negotiate a resolution of these matters, both of
them, both the platting matter, which we will talk
about in a second, but I have to keep separate,
and this issue of the marina.
So the manager, with our help, has, I mean,
I think has done a great job negotiating with the
Imbesis and has come up basically with the
framework of a settlement, which he will now go
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over with you.
MR. GONZALEZ: So we had face-to-face and
online conversations with the two parties. We are
seeking a global settlement. The instruction we
were given was to kind of make sure that you
resolve all matters so that there's no loose ends
or dangling participles out there.
The framework of the agreement is based in
part, in large part on his initial offer to the
village, which was to hand over the ownership of
the parks that are the eight or so parcels inside
the gated community that they acquired.
It is where it is free and clear so long as
you do the following. First of all, he wanted to
settle the litigation we have been hearing about,
which is the operation of the marina. Make it or
agree that it is, in fact, operating according to
the code. That it is, in fact, noncommercial,
that they are entitled to operate, and they
continue to operate in the manner in which they
have been operating. That it would be approved.
Not even
would be
We
approved. It's not an approval, but it
valid under the code.
have kind of clarified that a nonprofit,
noncommercial, noncharter, no commercial activity
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1 taking place would be valid under the code, and he
2 has agreed no chartering, and no commercial
3 activity would take place. That it would remain a
4 membership marina.
5 COUNCILWOMAN COHEN: I don't understand.
6 This is what he is claiming he is running
7 presently?
8 MR. GONZALEZ: That is what he is claiming
9 he is running presently.
10 The membership, you can have a dues, and
11 you can have a membership. He keeps indicating
12 that he wants to be treated like any other
13 resident. So we tied a lot of the regulations to
14 our code and saying, well, okay, our code, for
15 example, has a prohibition on short term rentals.
16 You can't rent your home or condo for less than
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six months. So, Joe, you cannot have memberships
less than six months. You cannot have contracts
to dock your boat in the marina for less than six
months. You can't just come in and show up and be
a member for the day. It needs to be a long term
membership operation.
He has agreed he will abide by those
things. Those are included in the regulations
that he has proposed.
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He has always indicated that the marina
upland, if you would, along Bal Bay Drive where
there is a sidewalk and a path, that he would
grant access. It's part of the property. He
would grant access to pedestrians, no dogs, but
pedestrians to have access to the marina, which is
something that 1 think the residents had enjoyed,
and then more recently he has been enforcing the
trespassing policy there.
MAYOR GROISMAN: He calls the police if
someone goes out there.
MR. GONZALEZ: Exactly. So he has kind of
agreed to put a sign that says Joe Imbesi or the
yacht club has allowed this. I will read it to
you.
MS. TREVARTHEN: Bal Harbour Yacht Club
private property. Residents are invited to walk
exclusively on our brick paver driveway. No dogs.
Please respect this accommodation. That was
negotiated.
MR. GONZALEZ: He has also agreed to not
develop further or subdivide it any further than
what he is asking for with the plat waiver, which
we will get into in the next executive session.
He has agreed to a series of regulations
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1 that we are still kind of going through to make
2 sure that they abide by, you know, reasonable
3 tests that we would have. Again, hours of
4 operation, overnight guests. Noise would have to
5 be tied to our noise ordinance. Only the owner or
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the captain can be on the boat after a certain
hour. Anybody that is going to be active, needs
to go through the dockmaster and be assigned,
registered with the gate, the guardhouse so there
is access and information on who is coming in and
who is not after a certain hour. Other than the
owner or the captain, no one can come in, so no
guests, no parties, no visitors, I think, after I
think it's 6:00 o'clock. Wasn't it, Susan?
MS. TREVARTHEN: Yes. He agreed to 6:00
o'clock. We haven't yet discussed what time in
the morning it would start up again. That was the
latest.
MR. GONZALEZ: No commercial activity, no
work on the boat, no cutting of fish, no gassing.
Other than emergency activity, nothing that would
be of marina boat building kind of operation.
It's really strictly a dock your boat and go.
He claims he would deed the parks to the
village. At our last executive session, the
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instruction was that it really was preferable that
the village not own the properties, but that they
be deeded directly to the civic association or the
entity that would be created within the gated
community.
MAYOR GROISMAN: That is because the
properties have a plat restriction on them.
MR. GONZALEZ: Right.
MAYOR GROISMAN:
They are for the exclusive
use and enjoyment of the platted section.
COUNCILWOMAN COHEN: The adjacent property.
MR. GONZALEZ: It's the plat, which would
be the gated community plus the west side.
MAYOR GROISMAN: Plus the west side who has
pedestrian access to it now.
MR. GONZALEZ: The idea there, so you
understand what we are trying to do, is once the
village took ownership of it, it starts to open up
a lot of Pandora's box as to who has access. If
you own it, how you have to maintain it. Should
the village, as a whole, maintain it, but only
certain guests or residents are to use it.
MR. WEISS: If you transfer it, it now
comes under our charter, which says we have to
give it to the voters.
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1 MR. GONZALEZ: That is why we are avoiding
2 a lot of those nuances by doing that.
3 MAYOR GROISMAN: He knew that when he
4 offered it.
5 MS. TREVARTHEN: And also fulfilling the
6 intent of the plat. I mean, the plat always
7 specified that these would be privately held for
8 the benefit of the people within the residential
9 section.
10 MR. GONZALEZ: Before that were to take
11 place, he would grant all necessary easements that
12 the village might have for utilities, underground
13 work, anything we might need to use those park
14 areas, some service. Those easements would be in
15 place. So whatever he granted to the civic
16 association. That way, we don't need to go and
17 try to secure that later on from the civic
18 association.
19 He is asking for the plat waiver of the
20 three lots.
21 MS. TREVARTHEN: That would be the next
22 session.
23 MR. GONZALEZ: Right, right, but as part of
24 this is the three lots. As it relates to the
25 parcel, the plat, when granted, would be governed
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by the code, which means that any development that
takes place on those homes, would need to go
through the architectural review board, which is a
requirement of any home builder.
MS. TREVARTHEN: Let's cover this in the
next executive session.
MR. GONZALEZ: Okay.
MS. TREVARTHEN: That is not the marina.
MR. GONZALEZ: The remaining parcel, once
you cut that piece off and make the tail shorter,
if you stick to the analogy, which is the
remaining marina, he commits a covenant to no
further development of any kind, no filling in of
the basin. It would remain a marina, and that
would need to go through a site plan review
process of the council to update what is currently
in place.
So, in essence, in kind of from a generic
perspective, there is a lot of words on the
agreement, but, in essence, it kind of locks in,
the agreement would lock in the operation, whether
it was ideal or not, the operation that existed
prior to the litigation, except that you, for
sure, make sure that there is no commercial
activity. Meaning membership is noncommercial.
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It's a nonprofit.
COUNCILMAN FRETMARK: How do you
COUNCILMAN ALBAUM: How do you inspect
that?
COUNCILMAN FREIMARK: Is there a reporting
requirement? How is all of that insured, that
it's not a commercial membership?
MAYOR GROISMAN: Let me jump in because it
relates to that.
So I met with Mr. Imbesi, I don't know,
three weeks ago, two weeks ago, three weeks ago,
at Shlomi Alexander's house, another resident, who
called me and said Joe wanted to meet with me
personally. He wanted me to be there, or I don't
know. He asked to be there, whatever.
So I went to meet at Mr. Alexander's house,
and I met with him to try to talk about a lot of
these issues.
Most important, the most important issue
that I had with regards to the lawsuit that we are
talking about is whatever -- without talking about
what those rules would be, the district right now
has no regulations. To be clear, to take one step
back, there is a lot of focus on me or my district
because that is within our district seemingly, but
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1 it's not. It's clear that is a separate district.
2 There is a residential district. That is one part
3 of the code.
4 MR. GONZALEZ: SPC, I think.
5 MAYOR GROISMAN: They have the marina
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itself, and the yacht basin and the cul-de-sac is
all part of what is called the private club
district. If you look at the private club
district, other than the rules, the code that we
are talking about, noncommercial, et cetera, there
is nothing else as far as hours of operation, what
kind of things can happen there.
Just like in the business district, we have
lots of regulations and ordinances relating to
what they can do, what they can't do. On the RAF,
they don't have any of that.
COUNCILWOMAN COHEN: Nobody ever addressed
it. It wasn't in anybody's mind.
MAYOR GROISMAN: It was before the council
a few months ago and it didn't pass to put some
sort of regulations on them.
So the idea was whatever regulation we
spoke about, to have them in ordinances once we
agree on them or if we can agree on them, and that
way, since we are not a private entity, as a city.
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We are a municipality. The only way for us to
enforce anything or for residents is through an
ordinance.
I will tell you in my meeting, Mr.
agreed with me that he would agree to an
Imbesi
6 ordinance, and then a week later, he called me and
7
8 me, told me that he is no longer agreeing to the
9 ordinance.
10 So the biggest problem I have with the
11 agreement that is before us is the first that you
12 all pinpointed, which was the lighting. Because
13 there is no way to enforce any of the rules that
14 are on here. These are the rules he is agreeing
15 to today. Tomorrow he changes the rules. There
16 is nothing to do. Let's say he even agrees to a
17 provision and he can't change the rules. If he
18 changes the rules, we would have to sue him to
19 enforce it because we can't do anything as a city.
20 COUNCILMAN ALBAUM: There are no penalties.
21 COUNCILWOMAN COHEN: You are asking us in
22 good faith to accept the predicate here, which is
23 that he is not operating a commercial marina, that
24 he is operating a noncommercial. That is what is
25 being presented to us.
told me that -- or called Jorge and then called
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MR. GONZALEZ: Time cut. Let me be clear.
The instruction we got was that a lot of
these parameters were generally kind of livable at
the last executive session.
MAYOR GROISMAN: But the details --
COUNCILWOMAN COHEN: We didn't go into
details.
MAYOR GROISMAN: Let's see if we can reach
a resolution.
MR. GONZALEZ: Right. So this is what is
there. I am not proposing anything. This is
where it's at.
COUNCILWOMAN COHEN: We expressed a feeling
of, okay, let's try and you know.
MAYOR GROISMAN: The only thing in detail
that we spoke about was the park ownership because
we saw his acquisition of the parks, which does
not seem kosher. Okay? It doesn't seem like it
was an appropriate -- it hasn't been adjudicated
yet, but it doesn't smell right all the way
around, but it still seemed like an opportunity.
We are stuck in this litigation. It could
be good for us. If we can get to something that
we are all happy with and stop dealing with
lawsuits, then why not. Let's explore it.
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So the carrot that he was trying to use,
Mr. Imbesi was trying to use was the parks because
a parallel track to this, which I think you all
are all caught up with this, is the last several
years, two or three years, the gated community has
really been trying to clean up the mess that has
been left behind for the 50 years of not having a
proper homeowners association and that sort of
thing and have been a series of --
COUNCILWOMAN COHEN: Nongated -
MAYOR GROISMAN:
Nongated parks, et cetera.
So there have been a series of things that we all
as a council have been doing on our end, and the
civic association, which to be clear I'm not -- I
am a member of. We haven't signed it, but I paid
my portion, but I'm not a member of the leadership
because I think there might be a conflict if I am,
so I am not.
But they are trying to -- they have their
own lawyers and they are to get -- their papers
are already drafted to get everyone signed. There
is a lot happening.
So in the last executive session we agreed,
let's pursue something where the only specific was
the park would go to the civic association, the
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rest we would talk about_
I have spoken to Jorge twenty times about
not this last one because they changed it a few
times now.
MR. GONZALEZ: Just to be very clear, I
know where you can and you cannot make a deal.
They are not going to make a deal that
eliminates their operating agreement. If that is
the direction, give it back to Joe and let him try
this thing.
COUNCILMAN ALBAUM: Well, obviously, we
can't have any kind of enforcement on this to
insure that he is acting in good faith. What do
we have?
MR. GONZALEZ: You can do that. You can
work audits. You can work other reviews.
COUNCILMAN ALBAUM: But Gabe just said it's
not even an ordinance.
MAYOR GROISMAN: If it's not an ordinance,
we can't. Because then he blows it off and then
the next -- we have to think.
COUNCILMAN ALBAUM: It's another lawsuit.
MR. WEISS: It's another lawsuit.
MAYOR GROISMAN: We have to think beyond
the council that is here today. We have to think
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that is an issue we have had in the past. It's
things are done for right now. That is not the
way to do things.
COUNCILWOMAN COHEN: That is what is
happening here too. All of a sudden we have a
situation where the gentleman acquired some land.
Now he has us by the --
MR. GONZALEZ: Not necessarily.
MAYOR GROISMAN: I disagree. I think he
gets us here.
COUNCILWOMAN COHEN: Of course it is.
MAYOR GROISMAN: Jorge, he changes the
rules tomorrow, A.
MR. GONZALEZ: No, no, no. He is not going
to change it.
MAYOR GROISMAN: B, he starts operating in
a way that is a blatant breach of the provisions.
Then the only way for the council to even
find out about it is for people in most likely the
gated community, they are the ones on the scene,
to come together, come to the council meeting, get
a council, hope that the council cares.
COUNCILWOMAN COHEN: Exactly.
MAYOR GROISMAN: That is not the way.
Imagine if we have the same rules for the Bal
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Harbour Shops. No rules. You guys do whatever
you want. If not, we will sue you.
COUNCILWOMAN COHEN: Well, it's still
pretty much the way.
MAYOR GROISMAN: Right, exactly
MR. GONZALEZ: I am not arguing the point.
I am saying what you just described is probably
the same situation whether there is an ordinance
or not. You would still probably get a complaint.
MAYOR GROISMAN: You can call the police if
there is a party at 2:00 in the morning. You can
call the police. The police will have to go.
MR. GONZALEZ: Exactly.
MAYOR GROISMAN: If there is a private
agreement, the police can't do anything.
MR. GONZALEZ: No, no, but we are tying the
noise ordinance to it.
COUNCILWOMAN COHEN: I came in here in a
conciliatory mood, but if I have to accept the
premise that it's a noncommercial operation, show
it to me. Demonstrate it to me. Then I can have
all my faith. I can invest my faith in the
gentleman and say, you are running a noncommercial
operation. If you continue to operate and don't
deviate from this, I am okay with it.
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That is not the case. How can I make an
intelligent decision right now?
MR. GONZALEZ: But then we are getting more
of this compelling --
MAYOR GROISMAN: If that provision wasn't
in there, we could do it.
ASSISTANT MAYOR SALVER: If we have an
agreement, if we sign it, they are going to sign
it, but based on the e-mail I got yesterday, they
already made changes to this.
MR. GONZALEZ: Oh, yes. He continues to
change it.
MS. TREVARTHEN: There have been two or
three e -mails and two or three versions that we
are trying to figure out what is changing, because
he seems to be doing it himself.
ASSISTANT MAYOR SALVER: Well, I think the
last one had like red lines.
COUNCILWOMAN COHEN: That is very typical
of them.
ASSISTANT MAYOR SALVER: I don't know how
much of this we say at this session or the next
session, but let's say we got tomorrow a judge to
rule and say that it was a private club, I mean,
to say it was not operating legally, then they
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would just double down on the whole platting
thing.
Even if we get them to agree that the club
is operating illegally, what are we then
accomplishing because or. the other hand, we have
to consider that, and that they have a much
stronger case for it.
MR. WEISS: There is a difference between
what they can accomplish. I don't want to get
into the platting here, but there is a difference
between what they can accomplish by winning the
platting case versus this.
The platting case, the most they can do in
the platting case is get their plat. The platting
case does not, cannot, even if they win everything
in the platting case, it can't result in your
marina operation.
COUNCILWOMAN COHEN: It's completely
different.
Do you have the carrot?
Let's assume Mr. Imbesi does not, that we
don't take him up on his offer and that he keeps
his green spaces, extensive green spaces. It's
extremely costly to operate, to maintain those
spaces.
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1, if you ask me to bet right now, he wants
to offload those things. Cutting that grass and
assuming those expenses --
ASSISTANT MAYOR SALVER: Is he cutting the
grass right now?
MR. GONZALEZ: We have.
COUNCILWOMAN COHEN: You have been doing
it, but the day you turn it over, you are talking
about thousands of dollars a week. IL's
expensive. Are you guys, are you gentleman aware
of the amount of green space we are talking about
COUNCILMAN FREIMARK: I heard what was
discussed.
ASSISTANT MAYOR SALVER: So we are at a
status quo.
NIR. SEROTA: We have a court reporter. You
really have to talk one at a time.
MR. GONZALEZ: As we began negotiations, as
you instructed, we are going to freeze things in
place. The gated community assessment has
historically maintained those properties and we
continue to do so.
Conversely, you know, they claim that there
is no easement to our stormwater pump and pipe
that is in their property, and I go, well, you
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1 don't enforce any of that. You know, we could
2 always do an eminent domain issue if it came to
3 that, but we in the spirit of trying to resolve
4 this matter quickly, I said, we will just continue
5 to do what we have been doing.
6 The fact of the matter is most of that
7 property is staging site for the construction of
8 the pipe anyway. So there is not a lot
9 maintenance going on.
10 COUNCILWOMAN COHEN: Right now there isn't.
11 MR. WEISS: I think you know that I tried,
12 but I gave you so much information in the
13 orientation. I want to make sure you have a clear
14 picture of those park properties.
15 MAYOR GROISMAN: I showed them.
16 MR. WEISS: Not the physical picture, but a
17 legal picture.
18 COUNCILWOMAN COHEN: There is also, there
.9 is a whole scope of it.
20 MR. WEISS: There is a bunch of green space
21 in there. Within the plat, the legal document
22 that sort of set out how this community would be
23 developed, that green space is dedicated to the
24 exclusive use of the people within the plat. The
25 ownership of the property underlying is really not
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important, because the ownership is subject to
that restriction.
COUNCILWOMAN COHEN: Exactly.
MR. WEISS: So it's not like by owning that
property that they can build a house or they can
put a dog park or do anything.
MAYOR GROISMAN: They are challenging the
plat restriction.
MR. WEISS: They are. So the issue of the
ownership of the property, when we talk to you
about the gate park, we have the same issue with
the gate park. We own the gate park, but to us,
we can't use it for what we want to use it for.
So the fact that he owns the property is
potentially significant, but, again, it's being
challenged. So he may not even own those parcels.
COUNCILWOMAN COHEN: For $800 that he
bought it for.
MR. GONZALEZ: He is being challenged on
the one hand. Then on the other hand, he is
trying to gain additional leverage to lift the
deed restrictions so they would become publicly
owned.
MR. WEISS: What I wanted to respond to,
there was a comment that he sort of has us over a
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1 barrel on these park lands, but I wanted to sort
2 of define what that barrel looked like, which is,
3 yes, he potentially owns them, but they are
4 subject to exclusive use of the people within
5 there. He can use them. He is part of the
6 persons in there.
7 COUNCILWOMAN COHEN: Because he owns a
8 house too.
9 MR. GONZALEZ: He owns the marina.
10 COUNCILWOMAN COHEN: He also owns the
11 marina.
12 MR. WEISS: I just wanted to sort of wrap
13 something around what --
14 MR. GONZALEZ: He thinks his leverage would
15 be if the deed were lifted then the residents
16 inside the gated community are going to be in
17 jeopardy of being able to maintain the privacy of
18 the property, and that would compel the council to
19 see it his way.
20 MAYOR GROISMAN: That would be bad for him,
21 too. He owns more property that anybody else.
22 COUNCILWOMAN COHEN: It's a lot of huffing
23 and puffing.
24 MAYOR GROISMAN: Let's just put a little
25 order to the meeting so we can make concrete
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decisions as to the next steps.
So we have a settlement agreement, which is
not -- I will save my comments to last. We have a
settlement agreement. We have been trying to
negotiate with them.
As I explained to you, this is not what I
agreed to when I met with him. I will start with
that, and then I'll tell you all the problems I
have with it after.
Let's go around the room. Is anybody in
favor of signing the agreement that is before us
now or something similar to it?
COUNCILMAN FREIMARK: I am not absent
teeth. No.
MAYOR GROISMAN: Absent what?
COUNCILMAN FREIMARK: Absent teeth.
MAYOR GROISMAN: Teeth, like enforcement
mechanism.
COUNCILMAN ALBAUM: If we had an ordinance,
I probably would go for it. If we can't enforce
it -- well, he tells me that he
MR. WEISS: It's just a settlement
agreement. The way without an ordinance, the way
you would have to enforce it is back into court,
and you are in breach of the agreement.
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COUNCILMAN ALBAUM: Or some other vehicle,
but Gabe has assured us that without an
ordinance --
COUNCILMAN FREIMARK: Everything that needs
to be resolved has to be in the agreement.
MAYOR GROISMAN: So before we go to the
next session, Patricia, are you in agreement with
that?
COUNCILWOMAN COHEN: No.
MAYOR GROISMAN: You, Seth?
ASSISTANT MAYOR SALVER: I don't know. I
know this litigation has been going on for awhile.
The way I see it is that if they are not
successful in that case, then they still have the
whole platting issue on us. I know they are
different.
MR. GONZALEZ: I wouldn't worry about the
platting issue. Here is the question that I think
from a policy perspective, forget legal for a
second, is what do you want to see as an outcome.
Do you want a marina that is exclusively for
residents only or do you want to allow it to be a
membership kind of club, a la what we think he is
operating there, without the commercial? Those
are two different things.
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COUNCILWOMAN COHEN: Do you really think
that, Jorge? You think he is really --
MR. GONZALEZ: It doesn't matter what I
think. I am just saying what do you --
COUNCILWOMAN COHEN: You just said a la
what we think he is running there.
MAYOR GROISMAN: What he says he is
running.
MR. GONZALEZ: What he says he is running.
I am not judging it.
Joe, we need to do more work here to
pinpoint it.
MAYOR GROISMAN: Let me jump on that.
It doesn't look like he is operating under
the code to answer your question, but I am not the
judge or the jury on it, and neither of us right
here are actually the judge or the jury.
COUNCILWOMAN COHEN: That is why I am
asking the question.
MAYOR GROISMAN: But the question is
similar to what Jorge was asking a little bit
different, which is why I saw an opportunity of
reaching some sort of settlement agreement, which
is, practically speaking, unless we win on the new
marina issue, which then will be by definition
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only for residents of Bal Harbour overall. It
could be a Bal Harbour exclusive marina.
Other than that outcome -- the other
outcome, the other part of the case -- Joe, please
correct if I am wrong -- would likely end with a
judge or most likely an appellate court outlining
what they would be allowed to do or not do. They
don't usually give instructive opinions, but if
you think of the kind of opinion they would give,
they would say it's not proper because it does X,
Y and Z. So they are telling him, if you don't do
X, Y and Z, it will be proper. Right?
So what I was trying to reach was, okay, so
let's skip all those steps. Even if we don't get
everything, it's perfect as that judge would give
us at the end of the day in another two years, or
year, let's try to get some ordinances that we
would want, that are reasonable, that keeps it
what is really a character of a noncommercial
marina. It's more quiet. It's a little more
under control. It's not daily charters. It's all
these things that you hear about, that you heard.
Some of these rules reflect those issues. So that
is where I was coming from.
COUNCILWOMAN COHEN: That is the end
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result. That is what Jorge is questioning.
MAYOR GROISMAN: Correct. Now, is that a
home run for the city? No, because we actually
have a chance of a new marina issue and would be
great for everybody in Bal Harbour, not just the
gated.
ASSISTANT MAYOR SALVER: Is that still on
the table? Because I remember early on, you said
they struck some things from our --
MAYOR GROISMAN: No. They dismissed some
of their claims.
ASSISTANT MAYOR SALVER: I'm talking about
prior. We were requesting things prior to 2012.
MR. SEROTA: No, no. It is true. We were
requesting things prior to 2013 or '14. No, prior
the 2013, and the judge didn't allow us to go into
it. That is part of what we are doing in our
motion to compel is to get that information.
MAYOR GROISMAN: To be clear, that doesn't
mean that those counts are off the table at all.
They didn't move to dismiss those counts. That is
just discovery of when we can get those documents.
MR. SEROTA: The judge has limited it to
that time.
Gabe, if I can just make one comment. If
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we prevail, I mean, as Gabe lays out, if we show
that this was an abandoned use, that would be very
significant. We are talking about a couple of
years or so because that affects his entire value
of this marina. That is one thing.
If on the other hand, as Gabe says, the
judge says you need to operate a noncommercial
club and we think you are, it might be, you can't
pay those exorbitant salaries. You have to
operate that way. You have Lo have specific
criteria for membership.
MR. GONZALEZ: A screening process.
MR. SEROTA: Correct. So the point is if
we were to win that at the end of a year and a
half or two years, it could happen where the judge
says, you can operate, just operate under this
structure.
So, I mean, that is something else for you
to consider, is what is the best result, what is
the possible result, what is the worst result in
order to evaluate this.
MAYOR GROISMAN: Ms. Cohen.
COUNCILWOMAN COHEN: So our mandate is to
operate according to the code, right? For today,
what is there today. Sc let's go back to it.
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It says let's analyze why did the founding
fathers or the founding members, why did they
establish that it's only exclusively for the
members of Bal Harbour Village.
MR. WEISS: That is not in any place.
MS. TREVARTHEN: It doesn't say. It says
noncommercial.
MAYOR GROISMAN: I thought that is what it
was.
COUNCILWOMAN COHEN: I think it was. In
practice.
Okay. Okay. So end result, thinking about
an end result. We as elected officials, would we
be serving our constituents by perhaps reading
this or structuring so that in fact our residents
do have priority? Is that something that we want
to? Is that to our residents or citizens or
guests that they would be grateful for or it would
be interesting for them that we give them, that we
make the club or the membership, prioritize our
residents? I mean, is that something that we want
to look at? I mean, to get an end result. Like
what are we after.
MR. WEISS: I think he would be delighted
to have anybody join his club. He is not trying
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to exclude. Every resident of Bal Harbour could
join his club if they had money.
COUNCILWOMAN COHEN: I don't think that has
ever been offered.
MAYOR GROISMAN: I think what she is
saying, and, honestly, I agree with you as far as
that idea, which is for there to be some sort
whether it's reserve spot or some sort of priority
accommodation for Bal Harbour residents.
Let me just go back to this because I don't
want to keep going in circles. If we are trying
to give, like we did last time, Jorge leave in the
negotiation's direction, is it fair to say that
everyone on the council would like, without
getting into what the regulations are, we haven't
even gotten there, but if there are going to be
regulations, that they need to be part of an
ordinance? So that way if he says he wants to be
treated like everyone else, everyone else has an
ordinance. In the residential community, we have
ordinances. The buildings side has ordinances.
The business district has ordinances. He would
have to have ordinances as well because that way
it's the law of the town. Of course, he can
change it with three votes like anything else.
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MR. WEISS: Also lust to be very practical
about this -- and for some reason Mr. Imbesi
thinks I really don't like him at all. I have no
opinion about this, but I will tell you that his
pattern has been to do what he wants and just to
deal with it later.
Even with an ordinance, he is going to do
what he wants. He will do whatever it is. If he
violates the ordinance, cite him for code
enforcement. He will go through a code
enforcement hearing. He may get a fine. It all
takes time. When you are dealing with someone
I don't want to -- well, I don't care. When you
are dealing --
COUNCILMAN FREIMARK: Richard, the fact of
the matter is that people who don't want to follow
the rules are not going to follow rules. Just
like with that Airbnb going on in the buildings on
the ocean and so on.
MR. WEISS: The point that I'm trying to
make --
COUNCILMAN FREIMARK: They are not going to
do it.
MAYOR GROISMAN: One second, one second,
one second, everybody, please, we have a court
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reporter. We need to talk one at a time because
she has a problem.
MR. WEISS: The point that I want to make,
without any sort of personal opinion to be fair,
is that this particular group is more likely than
a normal person that you would deal with to be
violating the rules. That is just -- that is my
experience with them.
MAYOR GROISMAN: Therefore, their
reluctance to have set public rules.
MR. WEISS: I am not making it at all
personal. It's just I want you to be aware of who
you are dealing with.
COUNCILWOMAN COHEN: We need to be aware of
that.
COUNCILMAN ALBAUM: We need to think about
that, I guess.
ASSISTANT MAYOR SALVER: My only concern is
that --
COUNCILMAN FREIMARK: I don't agree with
that. I understand exactly what you are saying
and there are going to be elements of the
population that the rules are for everybody else
and not for them, but we still have a
responsibility, I believe, to construct the rules.
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If people choose not to follow the rules,
then there is enforcement to go through.
COUNCILWOMAN COHEN: Which has not been the
case at all.
MAYOR GROISMAN: One step at a time.
COUNCILMAN FREIMARK: We can't put it in
such a way that the rules are going to seem
pliable or malleable for the individual.
MR. WEISS: Oh, no. I wasn't suggesting
that.
COUNCILMAN FREIMARK: I know you are not.
I carried that example to an extreme. I think our
responsibility is to protect the village and put
the right rules and ordinances in place and our
judgment.
If they choose not follow, then we turn to
the village administration in whatever way, shape
or form is out there for enforcement.
MR. WEISS: That is an important point for
us to have a consensus.
COUNCILWOMAN COHEN: Can I just say? What
you said is completely logical. I know as hard to
believe as you may find it, this is not the way
traditionally things have been done in Bal
Harbour. Everything has been it is almost like we
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have to deliberately make a concerted effort to
not speed up the process in the spirit of
resolution, to take a step a back and say, wait,
what are we getting ourselves into. Let's take
our time and let's riot rush it and let's do
exactly what you are saying. That is a novel
approach here.
COUNCILMAN FREIMARK: It goes back to the
point that you made earlier regarding the fact
that we need to be thinking for the longer term.
COUNCILWOMAN COHEN: Exactly.
COUNCILMAN FREIMARK: And putting in motion
toward the longer term.
MR. GONZALEZ: What was -- Gabe, when you
spoke to him about ordinance and not ordinance,
I'm sure he --
MAYOR GROISMAN: Let me be clear when I
spoke to him what I used as an incentive to agree
to the ordinance, because going into the meeting,
I knew from Jorge that he was very reluctant. He
said he is not going to do it no matter what.
So you know, when I speak to him, I don't
speak to him on behalf of the council. We are not
allowed to do those things. I am just trying to
negotiate with him about what I would support,
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which is the same thing you all guys can do
individually and should if you feel it's
appropriate.
What I told him was, back to the same point
that we said earlier, if you look at the code that
says you can have a marina in the business
district, right, that is very reflective of the
COUNCILWOMAN COHEN: Spirit.
MAYOR GROISMAN: -- of the way things work
because there is no water in the business
district. Right? So maybe the business district
used to extend to the water, but the rest of the
code was never cleaned up to take that part out
because now there is no more water.
If we were to enter into any of this kind
of agreement in my mind, it doesn't make sense to
have an ordinance that references, really, to use
Jorge's analogy, the rest of the dog that is not
there, this club, because it's about the rest of
everything that is not there any more.
So what I told him, I said, look, there
needs to be ordinances, so that way the rules can
be enforced. You say you want to be like
everybody else. Everybody else has ordinances.
We have to pass them, without even telling him
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what they are basically. I will work with you on
what ordinances are reasonable, but there has to
be an ordinance. If we do, I said, I'll even
change, I'll support changing the ordinance so it
reflects what you are doing, which is a marina or
whatever it is. So because the whole club thing
is, from my perspective, a construct. It's a
construct. There is no club. What is the club?
The club used to refer to the club. Now there is
no club. There is a club membership, but there is
not -- it doesn't seem like there is anything
there.
So what I was suggesting with no specifics,
but we will even clean that up, and say, okay, so
now this is what you are doing. This reflects
reality. We will codify that, and it's going to
have all these rules, and that is going to be part
of that same ordinance. I thought that would be a
very big incentive because he says he wants to
sell the slips. He wants to condominiumize them.
If you want to sell something for a lot of money,
you hire lawyers and do due diligence and they are
going to look at the code and say, wait, what am I
buying into. What is this?
So I thought there would be a lot of value.
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I still think there is a lot of value for him to
clean this all up. Right? Like the ordinances
don't affect him financially. It might affect him
personalitywise.
COUNCILWOMAN COHEN: It will affect the
sale if he wants to condominiumize.
MAYOR GROISMAN: I think it will help him.
COUNCILWOMAN COHEN: It will help him
because people will know what they are getting
into, but they will be strict, these conditions,
considering it's inside a residential area. It
might not be as liberal as other marinas.
MAYOR GROISMAN: So just to go back to
where we are at, is it fair to say, I think we
have a majority, if you were to go back and tell
him that this agreement has to have public teeth
to it?
MR. GONZALEZ: Let me ask a question
because I hear what you are saying and I don't
disagree with you. Any regulation, anything like
that would need to be codified as part of an
ordinance, but stepping back a second, the general
construct of the settlement, does it sound like
you guys can live with it or not? Because if you
can't, then there is no sense in going forward.
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MAYOR GROISMAN: Let me address Ms. Cohen's
comment from before, which was how can we in an
agreement state that what they are doing is legal.
Earlier versions of this agreement
specifically didn't have that because who are we
to say it's not legal, and, frankly, it doesn't
look that way either, but we shouldn't be the
judge and jury on that. What we are doing,
because there is a lawsuit, is dismissing the
lawsuit, and working with it. It can't be with
prejudice. Right?
MR. SEROTA: Well, it would be with
prejudice with the court retaining the
jurisdiction.
MAYOR GROISMAN: No, no, but with
prejudice, though, would not allow, arguably,
would not allow the council to challenge how they
are operating then.
MR. SEROTA: That would be a new. If we
enter into an agreement that contains all these
restrictions and we are satisfied that this is
what is acceptable to us, then it would be
dismissed with prejudice.
Now, if he started acting in some different
way, we could then either move, you know, go
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through code enforcement to say, you are
operating, or if we felt there was some completely
different thing that we felt that we would
bring --
COUNCILWOMAN COHEN: Breach of contract.
MR. GONZALEZ: Breach of the agreement.
MR. WEISS: As we are talking about this
ordinance, one of the problems that we have, we
have ordinances in effect that we think he is
violating. The problem is as was pointed out in
our opinion, without a lawsuit, we really don't
know what he is doing.
One thing you may want to consider is, this
is sort of like the Iran deal, which is, you know,
you set standards, but they have to be very final,
and there has to be some way for us to know, have
some assurance of what he is doing.
Otherwise, we are in exactly the same
position they are, which is we have an ordinance,
but we don't know whether he is violating. Let's
say it says that you can only have 50 members.
COUNCILMAN FREIMARK: That is the question
I asked earlier. What are the reporting
requirements?
COUNCILWOMAN COHEN: Exactly.
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MR. WEISS: I think that needs to be in the
ordinance.
MAYOR GROISMAN: That needs to be in there
as well.
COUNCILWOMAN COHEN: First, we have to have
a baseline, what is going on now. Your don't even
have a baseline. You have no idea what is really
going on in there.
MAYOR GROISMAN: There is a lot.
MR. GONZALEZ: There is a lot. We just
can't prove it.
MAYOR GROISMAN: If you ask me, we have
enough evidence to prove it today.
MR. GONZALEZ: Flip it backwards. Don't
worry so much about trying to figure out what they
are doing. Maybe figure out what you are willing
to accept and offer those as the code. Say we are
willing to accept this kind of operation with a
code and enforceable, verifiable ways to make sure
that is what is being done.
If you are good with that, then we can go
and figure out the details of it, but if you are
not -- it really, what the end result here is if
you really like it to be the resident only marina
as perhaps was envisioned by the initial
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developers, then this is not the approach, and I
can tell you he is not going to agree to it. You
are going to have to get it through a judge.
MS. TREVARTHEN: Can I add to what Jorge
had to say?
Let's play that out. If we go down that
path that we are not going to pursue the
settlement agreement, we are back in court. Maybe
Joe gets a lot more factual data about how they
operate. We get this order that Gabe described
that the court says, don't do this, do that. That
is not going to be an ordinance. It's just an
order.
MR. GONZALEZ: We can pass an ordinance and
say how we want it whether there is a judge or
not.
MS. TREVARTHEN: We can do that now as part
of a settlement and resolve it in some way, but
the end result of that litigation is not going to
be --
MR. GONZALEZ: But the point of my question
was if you, as a body, do not think that you can
live with an operation kind of like what is going
on there, maybe with some regulations, that is
it's not commercial, and it's not chartering, but
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if you don't live in Bal Harbour but you are a
member and you can prove that you are a member and
you can dock your boat at the marina, if you can
live with that, then I think there is room for
settlement and not litigation. If you can't, then
the direction is just pursue the litigation.
MAYOR GROISMAN: From my perspective, just
from my perspective, this negotiation isn't dead.
There is still a big opportunity here, I think he
was testing to see what the council in the first
meeting is going to do. So from my perspective if
we are talking in general strokes, and we are
going to, obviously, have to come back again, if
we can get there, there has to be an ordinance.
It has to be verifiable like Mr. Freimark has said
for sure, and you can figure out what the
mechanism is.
Like what Ms. Cohen said, I agree with her
as well, there should be and it hasn't been there
at all, some sort of priority system that is
reasonable, that members, residents of the overall
Bal Harbour community should have some sort --
COUNCILWOMAN COHEN: Should have priority,
first of all.
MAYOR GROISMAN: Yes.
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COUNCILWOMAN COHEN: Second of ail, in the
spirit, again, of democracy, which I seem to sort
of be always kind of attracted to, have you gotten
a sense of what your neighbors? How do they feel
about this? Do you understand what I am saying?
I know how you feel and you are pretty much
affected because you live right there, but how do
the others feel? Do they welcome this marina?
Are they pleased with people, with commercial
vehicles in and out all day servicing boats? I
think in our buildings we get to chime in on those
things.
COUNCILMAN FREIMARK: We can try.
COUNCILWOMAN COHEN: We can try, exactly.
Doesn't always work, but if you get enough
momentum, then you can, but here who has?
MAYOR GROISMAN: It's very similar to the
beach side of one of your buildings. The whole
beginning of this impetus, from my involvement, is
exactly that. Yes, I live in front of the marina.
COUNCILWOMAN COHEN: You are affected.
MAYOR GROISMAN: But I am friendly with
almost everybody in the gated community, and the
character of the marina did start to change. It
used to be small little boats.
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COUNCILWOMAN COHEN: Quiet.
MAYOR GROISMAN: People used to sit on the
decks or whatever. The pier.
MS. TREVARTHEN: The docks.
MAYOR GROISMAN: The docks. I'm sorry.
COUNCILWOMAN COHEN: It was part of life.
MAYOR GROISMAN: It was part of the
neighborhood life. Suddenly, it started changing,
all the slips to mega -yacht slips. We started
getting the mega -yachts that came in with
commercial vehicles fixing them all day.
COUNCILWOMAN COHEN: Of course, and staff.
MAYOR GROISMAN: And staff. A big issue
you will see reflected here that I think we got an
e-mail from Mr. Imbesi related to overnight. So
there was an ordinance before the council to stop
overnight out on the boats at all. That was
rejected.
The argument from Mr. Imbesi was the
mega -yachts have insurance requirements that
someone is always on the boat. So an issue that
is in the neighborhood and people in the
neighborhood have said it specifically, given to
Mr. Imbesi in the meeting I was with, somebody
said that to him, which is the crew members that
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live on the boat are big security risks. So
somebody just lives on the boat. It's not when
the owner is there. There are people there all
the time, all the time. There have friends that
come over at night and they have parties and
girlfriends.
COUNCILWOMAN COHEN: Exactly, and they will
come in. Dubious company.
MAYOR GROISMAN: There is no one checking
them. Right now you go to this, quote/unquote,
private neighborhood, because that district is in
there, if they go to the front and say, we are
going to the marina, they have to let them in
because that is a different district. So they let
them in. Sc that part of it is what we came up
with.
ASSISTANT MAYOR SALVER: Is that true? If
I go to the gate and say, I'm going to the marina,
they don't even ask for my ID?
MAYOR GROISMAN: They don't ask. I know
for a fact because there was an issue a few nights
ago with some people soliciting money at 11:00
o'clock at night around the neighborhood. They
weren't going to the marina, but when I called the
police because I recognized these guys and they
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are shady individuals, the police stopped them,
and I went to speak to the police officer after,
how did they get in the neighborhood, and they
made up some story, but when he asked the security
guard, he said, oh, they just said they were going
to the marina, so I let them in.
COUNCILWOMAN COHEN: Okay. Gabe, I don't
think most of the neighbors will be pleased with
this.
MAYOR GROISMAN: No, they are not. The
answer to your question is, of course, they are
not. In fact, there are some neighbors --
COUNCILWOMAN COHEN: By the way, I do not
live there.
MAYOR GROISMAN: There are some neighbors
of mine that aren't happy with any of this, but
that is mostly because they are affected by the
plat, which I don't want to get into yet. That is
separate.
So this really isn't a me issue at all.
COUNCILWOMAN COHEN: So where is the
win/win for the residents? You should and all of
us if we are representing the constituents, what
are we here for?
MAYOR GROISMAN: So I'll tell you. From my
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perspective, what the residents need is assurances
that the operation that is in there is safe, that
it is accessible, that it's not closed off.
MR. GONZALEZ: It's not a nuisance.
MAYOR GROISMAN: It's not a nuisance. They
were at some point planning on closing off the
whole thing with a hedge. The whole character of
the neighborhood is sort of the free flow back and
forth into there.
Was this a perfect solution that I was
trying to chase? Not at all. If this was a
private dispute for me, I wouldn't be chasing it,
but as a public official, I thought it was
efficient that I was smart to try to reach a
reasonable resolution with certainty for everybody
so it would have a certain character, that it
would be quiet at night. The biggest issues are
people that rent the boats for the day, the amount
of cars that are coming in and out. The night
activities is tremendous and it's increasing.
COUNCILWOMAN COHEN: You just said it's the
biggest risk. The fact that they use it as an
excuse to get into the community when you say you
are going to the marina.
MAYOR GROISMAN: And it's a little
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community of crew members now that live there.
So those are all things that I was trying
to address in an imperfect way, but there is a
benefit to a resolution that we can control and
not anything else.
So I weighed all of it. Okay. Let's
go
for it. Let's try to reach a resolution. The
parks thing is a big issue. I am not going to
lie. If the civic association, if the homeowners
in there can finally take ownership of those, that
would be great, and, frankly, I think it would be
great for the overall
has been a cloud over
14 village and the gated
village, too, because this
the relationship between the
community for years, and
15 this will help resolve that which we have been
16 trying to do for a few years. I don't want to do
17 that in expense of everything else we are dealing
18
with.
19 COUNCILWOMAN COHEN: Of course not.
20 MAYOR GROISMAN: That is my thought
21 nrn Ace
r
22
23
So go ahead.
COUNCILWOMAN COHEN: Forgive me, but my
24 mind -- I'm a woman. I guess we multitask in
25 mind. So now I am thinking, okay, in order to
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1 check who is coming into the marina, eventually,
2 hopefully, we will add an ordinance that will say
3 that anybody going to the marina as well has to be
4 cleared by security.
5 MAYOR GROISMAN: You don't have to. The
6 civic association.
7 MR. GONZALEZ: The civic association.
8 COUNCILWOMAN COHEN: Theoretically right
9 now. Then you need more people at the front gate
10 because there are 30 or 40 slips there.
11 MAYOR GROISMAN: You don't need more people
12 at the gate.
13 COUNCILWOMAN COHEN: It's still going to
14 slow things down for the residents there.
15 MAYOR GROISMAN: It won't slow down at all,
16 at all.
17 MR. GONZALEZ: What you need to do is have
18 a mechanism that doesn't allow names to be added
19 that are not legit. That is where the dockmaster
20 comes in.
21 COUNCILWOMAN COHEN: How do you do that?
22 MAYOR GROISMAN: We came up with something
23 that is here.
24 MS. TREVARTHEN: It's in the rules and
25 regs, the beginnings of it.
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COUNCILWOMAN COHEN:
I am sorry. The three
girls that they invite tonight, they have to call
the gate.
MS. TREVARTHEN: It says nobody after 6:00.
MR. GONZALEZ: It states the dockmaster has
to do it.
MAYOR GROISMAN: It has to be, the way that
I dealt with that was it has to be, the crew
member has to be registered specifically by the
owner of the boat.
MS. TREVARTHEN: That is what it says.
COUNCILMAN FREIMARK: Where are we going
with this?
MAYOR GROISMAN: Because we have another
issue.
Are we clear that we are not deciding? We
decided we are not going to sign this agreement.
MR. WEISS: The direction is an ordinance
enforceable, verifiable.
MS. TREVARTHEN: And priority accommodation
to the residents.
MR. WEISS: Something for the residents.
COUNCILMAN FREIMARK: And I think the
solution should be to get to a settlement. Let's
also keep in mind that a court can impose
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something far worse.
MAYOR GROISMAN: It's out of our control
then.
COUNCILWOMAN COHEN: Shouldn't the judge
look at our code? Wouldn't that be the guiding
principle?
COUNCILMAN FREIMARK: It has been very
clear.
MAYOR GROISMAN: It's the clarity of the
code, which makes this potentially --
COUNCILWOMAN COHEN: It's the murkiness of
it.
MAYOR GROISMAN: Yes, potential.
MR. WEISS: The code has been there a long
time. It has been there before me in all this.
MAYOR GROISMAN: Richard, do we close this
meeting before I open the next one?
MR. WEISS: Yes, we do. Do your thing.
MAYOR GROISMAN: The attorney/client
session has now been terminated and the meeting is
now open. The public is now invited to return for
any further proceedings or matters.
(Thereupon, the proceedings were concluded
at 8:49 p.m.)
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CERTIFICATE
I, Mary G. Stephenson, FPR, State of Florida at
6 Large, certify that I was authorized to and did
stenographically report the foregoing proceedings and
that the transcript is a true and complete record of my
stenographic notes.
Dated this 27th day of December, 2016.
Mary G. Stephenson, FPR
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17th 18:21
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1990 16:12,13
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2012 52:13
2013 22:23 52:15
52:16
2015 11:5 16:22
17:1
2016 1:19 77:11
27th 77:11
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2:00 41:11
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abide 28:23 30:2
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accept 36:22 41:19
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acceptable 63:22
access 18:16 29:4,5
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accessible 72:3
accommodation
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added 74:18
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46:21
address 63:1 73:3
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58:17
admitted 8:16
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agree 25:2127:17
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background 5:7
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ball 17:9
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captain 30:6,12
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carrot 38:1 43:20
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