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BCC Minutes 04/22/2008 Closed Session (#12B-Bonita Media Enterprises, LLC) MINUTES Bonita Media Enterprises , LLC April 22 , 2008 COPY IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR • comma cowry.FL4RA& CIVIJ.itI,CTION BONITA MEDIA ENTERPRISES,LLC, BRENNAN,MANNA&DIAMOND(REG.AGENT), Appellants, vs, Appeal Case No.07-2035CA L.T.CEB No.2007-35 BOARD OF COUNTY COMMISSIONERS, COLLIER COUNTY,FLORIDA, Appellee. I ! a L, hJ tilk '- i ARY a,, 2 ! AD u r _=iM_p_ 4Lr __ ' ' THIS CAUSE comes before the Court on Appellant's"Notice of Voluntary Dismissal with Prejudice,"Sled October 16,2008. The Court accepts Appellant's notice to dismiss its pending administrative appeal,and,accordingly,it is ORDERED AND ADJUDGED that the administrative appeal is hereby DISMISSED with prejudice. DONE AND ORDERED in Chambers at Naples, Collier County, Florida, this.04.4.. day of 211t,,. ,2008. • Ellis Circuit Judge Certificate of Service I HEREBY CERTIFY that a true and correct ect copy of the foregoing order has been furnished to:Richard S.Aanunziata,Esq.,Brennan,Manna&Diamond,P.L.,3301 Bonita Beach Road,Bonita Springs,Florida 34134;Jacqueline Hubbard,Esq.,3301 East Tatmami Trail, Bldg.F,Naples,Florida 34112;and Court Administration(X),3301 E.Tamiami Trail,Naples, Florida 34112,this •47-i ' day oit' _ r1 L ,200146 DWIGHT E.BROCK Clerk of Court • Case 2:07-cv-00411-JES-DNF Document 104 Filed 10/20/2008 Page 1 'of'I IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT II FILED U.S.COURT OF APPEALS No. 08-15118-3 • ELEVENTH=our OCT 16 2008 BONITA MEDIA ENTERPRISES,LLC, a Florida limited liability company, THOMAS K.KAHN Plaintif&Appellee, CLERK versus • COLLIER COUNTY CODE ENFORCEMENT BOARD, COLLIER COUNTY,'et al., Defendant, JONATHAN LEE RICHES, Movant-Appelant. Appeal from the United States District Court for the Middle District Of Florida ENTRY OF DISMISSAL } Pursuant to the 11th Cir.R42-1(b),this appeal is hereby dismissed for want of prosecution because the appellant has failed to pay the$450 docketing and$5 filing fees($455)to the district court clerk within the time fixed by the rules,effective this 16th day of October, 2008. { THOMAS K.KAHN Clerk of the United States Court of Appeals for the Eleventh C r r By: Walter Pollard • AT�i3�Y. • Deputy Clerk month "� '' / FOR THE COURT-BY IRECTION • • ‘7,7 ORD-40 �r • Case 2:07-av-00411-J INITED SR a I~7/2008 Page 1 of 2 MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION BONITA MEDIA ENTERPRISES,LLC, Plaintiff -vs- Case No. 2:07-cv-411-FtM-29DNF COLLIER COUNTY CODE ENFORCEMENT BOARD,COLLIER COUNTY,a political subdivision of the State of Florida, COLLIER COUNTY BOARD OF COUNTY COMIVIISSIONERS, Defendants. / JUDGMENT IN A CIVIL CASE IT IS ORDERED AND ADJUDGED that pursuant to the Court's Order entered on October 16,2008,this case is dismissed with prejudice. Date: October 17,2008 SHERYL L.LOESCH,CLERK By Is/Dianne Nipper,Deputy Clerk c: All parties and counsel of record Case 2:07-cw00411-JES Pe fic 3t CH d 0117/2008 Page 2 of 2 1. 6,2101_3 rders:Courts of Appeals have jurisdiction conferred and strictly limited by astute: (a) Appeals from final orders pursuant to 28 U.S.C.Section 1291:Only final orders and judgments of district courts,or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under 28 U.S.C.Section 158,generally are appealable. A final decision is ono that"ends the litigation on the merits and laves nothing for the court to do but execute the judgment." Pitney Bowes.Inc.V.Moshe,701 F.2d 1365,1368 (11th Cir.1983). A magistrate judge's report and recommendation is not final and appealable until judgment thereon is entered by•district court judge.28 U.S.C.Section 636(0). (b) In eases Involving multiple parties or multiple claims,a judgment as to fewer than all parties or all claims is not a final,appealable decision unless the district court has certified the judgment for immediate review under all Fsd.R.CIv.P.54(b),William.v.Bisbee.732 F.2d 885,885-86(11th Cir.1984). A judgment which issues except matters,such as attorneys'fees and costs,that are collateral to the merits,is immediately appealable. Budinich v.Becton Dickinson&Co.,486 U.S.196,201,108 S.Ct.1717,1721-22,100 L.Ed.2d 178(1988); Lachance v.Buttes Draft House.bro.,146 F.3d 832,837(11th Cir.1998). (c) Appeals pursuant to 28 U.S.C.Section 1292(a): Appeals are permitted from orders"granting,continuing, modl$ring,refusing or dissolving injunctions or refining to dissolve or modify injunctions..."and from "(i)nterlocutory decrees...detormfaing the rights and liabilities of parties to admiralty B orders appeals from e final decrees are allowed." Interlocutory appeals from orders denying temporary are not permitted. (d) Appeals pursuant to 28 U.S.C.Section 1292(b)and Fed.R.App.P.51 The certification specified in 28 U.S.C. Section 1292(b)must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court's denial of a motion for cerdfatian is not itself appealable. (e) Appeals pursuant to judicially created exceptions to the finality rules Limited exceptions are discussed in trues including,but not limited to:Cohen V.Beneficial Indus.Loco Corp.,337 U.S.541,346,69 S.Ct.1221,1225-26,93 L.Ed.1528(1949X Atlantic Fed.Say.&Loan Au'n v.Blythe Eastman Paine Webber.Inc.,890 F.24 371,376 (11th Cir.1989)Gillespie v.United States Steel Coro.,379 U.S.148,137,85 S.Ct.308,312,13 L.Ed.2d 199 (1964). 2. i lnsc for Mom The timely filing of a notice of appeal is mandatory and jurisdictional. Rinaldo v.Corbett,256 F.34 1276, 1278(11th Cir.2001). In civil cues,Fed.R.App.P.4(a)and(c)sot the following time limits: (a) Fed.R.App.P.4(a)(1);A notice of appeal in compliance with the requirements set forth in Fed.R.App.P.3 must be filed In the district court within 30 days after the entry of the order or judgment appealed from. However,if the United States or an officer or agency thereof is a party,the notice of appeal must be filed in the district court within 60 days after such entry. THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OP THE APPEAL PERIOD-no additional days are provided for mailing. Special filing provisions for inmates are discussed below. (b) Fed.R.App.P.4(0(3):"If one party timely files a notice of appeal,any other party may file a notice of appeal within 14 days after the date when the first notice was filed,or within the time otherwise prescribed by this Rule 4(a),whichever period ends later." (e) Fed.R.App.P.400(4):If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in this rude,the time for appeal fbr all parties runs front the date of entry of the order disposing of the last such timely filed motion. (4) Ped.R.App.PA(a)(f)and 4(0(6):Under pertain limited circumstances,the district court may extend the time to file a notice of appeal. Under Rule 4(a)(5),the time may be extended if a motion for an extension is flied within 30 days after expiration of the time otherwise provided to file a notice of appeal,upon a showing of excusable neglect or good cause. Under Rule 4(a)(6),the time may be extended Bile district court finds upon motion that a party did not timely receive notice Odic entry of the judgment or other,and that no party would be prejudiced by an extension. (e) Fed.R.Appd'.4(4 If an inmate confined to an institution files a notice of appeal in either a civil case ore criminal ease,the notice of appeal is timely if it is deposited in the institution's internal mail system on or before the last day for filing. Timely filing may be shown bye declaration in compliance with 28 U.S.C.Section 1746 or a notarized statement,either of which must set forth the date of deposit and state that first-class postage has been prepaid. 3. Format of the notice of anneal:Form 1,Appendix of Forms to the Federal Rules of Appellate Procedure,is a suitable format. See also Fed.R.App.P.3(c). A so notice of appeal must be signed by the appellant 4. Ifect of a notice of appeal:A district court loses jurisdiction(authority)to act after the filing of a timely notice of appeal, except fbr actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Ped.LApp.P.4(aX4). -2- Case 2:07-cv-00411-JES-DNF Document 102 Filed 10/18/2008 Pagel of 2 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION BONITA MEDIA ENTERPRISES, LLC, Plaintiff, vs. Case No. 2:07-cv-411-FtM-29DNF COLLIER COUNTY CODE ENFORCEMENT BOARD, COLLIER COUNTY, a political subdivision of the State of Florida, COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS, Defendants. ORDER On September 16, 2008, the Court entered an Order (Doc. #100) terminating all pending motions in light of a settlement, administratively dismissing the case for a period of sixty days, and directing that the parties could present argument at the time of filing final documents if they wished to have the Court retain jurisdiction. Within the time allotted, plaintiff filed a Notice of Voluntary Dismissal With Prejudice (Doc. #101)1, however, no arguments have been provided to support the retention of jurisdiction. Therefore, the Court will not retain jurisdiction over the settlement but otherwise dismiss the case. Accordingly, it is hereby ORDERED AND ADJUDGED: !Although defendants appeared and filed an Answer, the Court will permit the voluntary dismissal as it was filed pursuant to a Settlement Agreement. Case 2:07-cv-00411-JES-DNF Document 102 Filed 10/16/2008 Page 2 of 2 The Clerk of the Court shall enter a separate judgment pursuant to Rule 58 of the Federal Rules of Civil Procedure dismissing the case with prejudice. The Clerk is further directed to terminate any previously scheduled and pending motions, and close the file. DONE AND ORDERED at Fort Myers, Florida, this 16th day of October, 2008. - n !V JO:: E. S _ II. Ted States District Judge Copies: Counsel of record -2- April 22, 2008 TRANSCRIPT OF THE MEETING OF THE BOARD OF COUNTY COMMISSIONERS Naples, Florida, April 22, 2008 Closed Session Item #12B — Bonita Media Enterprises, LLC LET IT BE REMEMBERED, that the Board of County Commissioners, in and for the County of Collier, and also acting as the Board of Zoning Appeals and as the governing board(s) of such special district as has been created according to law and having conducted business herein, met on this date at 12: 15 p.m., in CLOSED SESSION in Building "F" of the Government Complex, East Naples, Florida, with the following members present: CHAIRMAN: Tom Henning Donna Fiala Jim Coletta Fred Coyle Frank Halas ALSO PRESENT: Jim Mudd, County Manager Jacqueline Hubbard, Assistant County Attorney Jeffrey A. Klatzkow, Chief Assistant County Attorney Page 1 — Item #12B (Bonita Media Enterprises) April 22, 2008 Item #12B THE BOARD IN EXECUTIVE SESSION WILL DISCUSS: SETTLEMENT NEGOTIATIONS AND STRATEGY RELATED TO LITIGATION EXPENDITURES IN THE PENDING LITIGATION CASES OF BONITA MEDIA ENTERPRISES, LLC. V. COLLIER COUNTY CODE ENFORCEMENT BOARD, COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS, CASE NO.: 2:07-CV-411-FTM-29DNF, NOW PENDING IN THE UNITED STATES DISTRICT COURT, MIDDLE DISTRICT OF FLORIDA, FORT MYERS DIVISION AND BONITA MEDIA ENTERPRISES, LLC., BRENNAN, MANNA & DIAMOND (REG. AGENT) V. BOARD OF COUNTY COMMISSIONERS, COLLIER COUNTY, FLORIDA, APPEAL CASE NO.: 07-2035-CA, LOWER TRIBUNAL CEB NO.: 2007-35, NOW PENDING IN THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR COLLIER COUNTY, FLORIDA, IN THE ADMINISTRATIVE APPEAL DIVISION OF THE CIRCUIT COURT. — CLOSED SESSION CHAIRMAN HENNING: Okay, guys and girls. You're starting this off, Mr. Klatzkow? MR. KLATZKOW: I'll let Jackie start off. MS. HUBBARD: Okay. Jacqueline Hubbard, assistant county attorney. And we'll go around the table and have everyone introduce themselves for the record. COMMISSIONER COYLE: Fred Coyle. CHAIRMAN HENNING: Start to your right. MS. HUBBARD: Start to my right. MR. KLATZKOW: Jeff Klatzkow, chief assistant county attorney. CHAIRMAN HENNING: Tom Henning, county commissioner. MR. MUDD: Jim Mudd, county manager. Page 2 — Item #12B (Bonita Media Enterprises) April 22, 2008 COMMISSIONER HALAS: Frank Halas, county commissioner. COMMISSIONER COLETTA: Jim Coletta, Collier County Commissioner, District 5. COMMISSIONER FIALA: Donna Fiala, county commissioner, District 1. COMMISSIONER COYLE: Fred Coyle, county commissioner. MS. HUBBARD: Okay. Good afternoon, everyone. This meeting was called to discuss a pending settlement in a federal case in which our sign code was at issue. And the judge in the case issued a preliminary injunction essentially holding that certain provisions of the sign code, in his opinion anyway, are unconstitutional. I have met with the attorneys for the other side, the plaintiff, which is Bonita Media Enterprises, LLC, and had one settlement discussion which I am reporting to you about today. Essentially this case says that our sign code has provisions within it that exempt certain types of signs but allow them -- allow the same signs for either other parties, other content, or other locations, and the Court feels that at least in our circuit, which is the 11th Circuit, that the controlling case, which is the Solantic (phonetic) case, does not permit that type of-- those types of differences to be made in the sign code. And essentially, our position is that since the judge has issued a primary injunction, which means that he has ruled that he is likely to enter a final order in the same manner, I think that settlement is appropriate. In meeting with the other attorneys, initially my thought that was we would work out some sort of monetary amount that we could all agree on, I could bring that back to you today, and advise you that I think we should probably settle the case. The problem was that they are holding pretty tightly to their estimates of damages. Now, there's one area that I think with further research we could probably make an argument that they're not entitled Page 3 — Item #12B (Bonita Media Enterprises) April 22, 2008 to damages that stem from the unconstitutionality of the provisions in play because they've only requested injunctive and declaratory relief. I can't say with, you know, total certainty that that argument -- that we would prevail on that argument. A number of factors would have to be taken into account: Whether or not these are actual damages based upon their inability to use a moving sign on their trucks. Now, they have four trucks. They're the size, I would say, of a regular-size van, and they've taken the sides of the trucks, both sides and the back, and they've attached to those trucks, I would say, like small billboards because they actually -- you know, the signs go up and down and they change. I haven't been able to determine if the signs are illuminated in the sense that they're lit so they would show up at night. I've looked at the photographs, I've spoken to the code enforcement people and no one knew the answer to that question, at least not yet. But in any event, they've been -- they were driving those trucks around, they were spotted by a code enforcement person who issued a citation, Notice of Violation to the truck driver, and they came before the board, Code Enforcement Board. Code Enforcement Board basically found them in violation of the code, which is pretty obvious from the way the code is written that they were in violation, and they were ordered to stop moving the signs around, and if they were caught driving around with the signs in motion, they would be fined $1,000 a day. It's my understanding that once they were issued that cease and desist order, they did cease and desist in the sense that they stopped the signs from moving. They continued to use the trucks, but the signs no longer moved up and down on the three sides of the truck. They claim, however, that they have suffered $250,000 in damages as a result of not being able to utilize those trucks to the extent that they intended them to be used. I find that difficult to Page 4 — Item #12B (Bonita Media Enterprises) April 22, 2008 believe, but that's what they say. In any event, the other aspect of the -- and this was all brought out at the settlement conference. The other aspect of the case is that the attorneys claim they have approximately $172,000 in attorneys' fees and costs since the date of the citation, and that an outside firm, Holland & Knight, is owed an additional $27,000 because Holland & Knight was brought in specifically to deal with the federal issue in some respect. So they say their attorneys' fees are about 200,000. Now, I guess the question is, do we want to spend time and money proving up the amount of the attorneys' fees and costs that they are alleging that they expended and, two, do we want them to prove that they have lost $250,000 in business damages associated with the cease order that was given to them by the code enforcement officers, or do we want to just settle the case, cut our losses, and revisit the sign code? Frankly, it appears to me, from my initial review of it -- and bear in mind that my review is relatively, you know, recent -- that the judges will -- that the judge is probably correct, that he will undoubtedly enter a final order to the same extent as his preliminary injunction, and that we will be assessed costs and attorneys' fees, possibly damages in the end. My suggestion that we -- that I get from you a ballpark figure that you are comfortable with because my recommendation to you is that we do settle the matter and that we settle is for as little money as possible. I will tell you though this is not a covered case, so there's no insurance provision in any of our insurance policies according to our risk manager that would cover these losses. Now, they have counteroffered and said that they would accept essentially $199,000 for attorneys' fees and costs and $250,000 as damages for their client. Right now if you asked, you know, what my recommendation Page 5 — Item #12B (Bonita Media Enterprises) April 22, 2008 would be, it would be to try to reason with them regarding the costs and attorneys' fees and, perhaps, pay some damages to the business entity, but I don't feel comfortable recommending at this time that we pay the full $250,000 in damages that they are claiming for a couple of reasons. One, I'm not at this point entirely convinced that they're entitled to those damages, even though they may be; and two, I asked them at the settlement conference whether they would, in good faith, be able to prove up these damages by having documentation that would show how much money their client allegedly lost by not being able to have the moving signs, and also they know that in order to get the attorneys' fees and costs and go to hearing, they would have to prove those up also. So I need to know what your sense of this case is and what your recommendation would be for me to go back to engage in settlement discussions with the opposing counsel. COMMISSIONER COYLE: What's the risk in asking them to prove it up now? MS. HUBBARD: They indicated when we met that they could do that. There's probably no risk in asking them if they would submit that document to us, but a couple things you need to bear in mind. One is that the decision's already been rendered against the county. So it's not as if we have a very strong bargaining position at this time. There's -- we would have to come up with some reason why it would be in their best interest to do that, and the only one I would think of is that it would be resolved that much sooner. They have threatened in their letter that if we don't resolve the matter quickly that they will proceed to complete the litigation, and they will, of course, increase their attorneys' fees and costs as a result. CHAIRMAN HENNING: Well, we really need receipts to show, I mean, what are the damages, what is the true attorneys' costs. MS. HUBBARD: Right. I'm assuming that they're in good faith, Page 6 — Item #12B (Bonita Media Enterprises) April 22, 2008 that they'll be able to prove up those costs at least. CHAIRMAN HENNING: A hundred and seventy-five thousand dollars? MS. HUBBARD: That's what they -- no, 200-; 199,000. CHAIRMAN HENNING: For attorneys' fees? MS. HUBBARD: Attorneys' fees. Costs are estimated to be less than a thousand at this point. COMMISSIONER FIALA: And how long has this been progressing? MS. HUBBARD: This case is -- CHAIRMAN HENNING: It's not that old. COMMISSIONER HALAS: A year, maybe a year, year and a half? COMMISSIONER FIALA: That's why I'm asking, in correspondence to what you just asked. MS. HUBBARD: I think it's been -- Jeff, do you know how old the case is? MR. KLATZKOW: It's not an old case. MS. HUBBARD: It's not an old case. MR. KLATZKOW: I was stunned when Jackie told me what they were claiming. MS. HUBBARD: It's an '07 case, so it's not -- you know, at most, it's a year. CHAIRMAN HENNING: That's -- right. So in my opinion, just offer them a lump sum or prove up your cost. MS. HUBBARD: I did offer a -- subject to your approval, I put on the table $130,000, subject to bringing this to you and see if you would approve of that amount. They rejected that amount. So, you know, I'm prepared and our office is prepared to tell them that we haven't reached a settlement. We can stipulate to some type of judgment, I suppose, or we can continue to battle it out and see what the end result is. Page 7 — Item #12B (Bonita Media Enterprises) April 22, 2008 MR. KLATZKOW: Well, there's no point in battling this out because it's going to go to the 11th Circuit. COMMISSIONER COYLE: We already lost. MR. KLATZKOW: The 11th Circuit will rule against us, and then we'd have to go to the Supreme Court, and you're never going to get to the Supreme Court on this. Well, the chances certainly aren't good on what we're discussing. We happen to be in the wrong circuit on this one issue. Other circuits we wouldn't be having this issue. But there's no controlling the Supreme Court case on this particular issue. And we have a circuit that's very aggressive when it comes to protecting commercial speech. MS. HUBBARD: And so is the U.S. Supreme Court on this issue, I might add. They're pretty strong about protecting commercial speech. COMMISSIONER FIALA: So if we settle, do they still get to ride around with their trucks and be a hazard on our roads? COMMISSIONER HALAS: Until we change the ordinance. COMMISSIONER COYLE: Yeah. MS. HUBBARD: You're going to have to -- I mean, no matter , what happens, in my opinion, you're going to have to revisit your ordinance, your sign code. CHAIRMAN HENNING: I think the answer to your question is correct. That that's why -- I mean, the judge says, you can't -- the county cannot restrict them from rotating them, their signs. MR. KLATZKOW: Well, we may be able to do it but our current -- not under our current ordinance. We'd have to amend the ordinance very carefully. But the other issue is -- one of the things we're deciding, is this a safety issue because people are distracted on the road? But then you have that issue where you've got temperature and time signs that we do allow. And the Court says, well, how can you have a temperature and time sign which distracts people but not this one? Page 8 — Item #12B (Bonita Media Enterprises) April 22, 2008 CHAIRMAN HENNING: Well, one is a land -- a land issue. The other one is a -- COMMISSIONER FIALA: Traveling. CHAIRMAN HENNING: -- traveling issue. I don't know why we're dealing with traveling issues under the Land Development Code or trying to enforce somebody to do so. Commissioner Halas? COMMISSIONER HALAS: Did this get us because we have too many exemptions, and it was started off with a barber pole? MR. KLATZKOW: Yes. MS. HUBBARD: Yes. COMMISSIONER HALAS: The barber pole issue. MS. HUBBARD: Those are the major problems, too many exemptions, too many, you know, you can't do it here, you can't do it here. COMMISSIONER HALAS: The barber poles would rotate, and this guy says, I can use my sign as a triangle with three different signs in it. MR. KLATZKOW: Exactly. COMMISSIONER HALAS: The old barber pole come back and got us. MS. HUBBARD: Now, my -- I agree with Jeff. I mean, I think we should try to resolve it and move forward to amend the code. MR. KLATZKOW: What I'd like the board to do is, when we come out of session, is direct the County Attorney's Office, one, stop enforcing this ordinance, sign code ordinance. COMMISSIONER FIALA: Stop or restrict? CHAIRMAN HENNING: The county manager. MR. KLATZKOW The county manager stop enforcing this, and to ask the County Attorney's Office to bring back a revised sign ordinance that will be in compliance with the U.S. Constitution. CHAIRMAN HENNING: As far as the settlement, you know, a Page 9 — Item #1 2B (Bonita Media Enterprises) April 22, 2008 buck and a half, and the guy -- no code enforcement -- code enforcement fines goes away. MS. HUBBARD: Well, there's been no code enforcement fine. CHAIRMAN HENNING: Well, you know, allow the guy to do his business as he did prior to the citation. MS. HUBBARD: Right. I think that it will be cleaner, don't you think, Jeff? MR. KLATZKOW: Yeah. MS. HUBBARD: If we just tell the judge, you know, we're not -- which I've pretty much done, but basically we're not going to contest the preliminary injunction order; the code would be revised to conform to the first amendment; there will be no future damages because it's not going to be enforced against the party. I understand from speaking to Joe and Michelle, it will take approximately six to eight months to review and get the amendments into some sort of format where they can be adopted by the board in the future. Yes? COMMISSIONER HALAS: Is there the possibility that we can't cover this loophole up and we're going to have to live with this situation in the streets? MS. HUBBARD: That's a possibility. Joe Schmitt has suggested -- I've spoken to the Hillsborough County Attorney's Office because they had a problem with their sign code, similar case and everything, and what they did, they retained a first amendment consultant who redrafted their sign code, and they're very happy with it. And so Joe Schmitt was suggesting that, perhaps, he would consult with the same person. And if the board wishes to have a sign code, have it drafted so it would comply with the first amendment. COMMISSIONER HALAS: And they haven't been challenged with this new code? MS. HUBBARD: No. My understanding is that the code has Page 10 — Item #12B (Bonita Media Enterprises) April 22, 2008 been found to be okay. COMMISSIONER COLETTA: I think I heard Commissioner Henning make a comment a moment ago about maybe we could deal the settlement down considerably if we recognized the number of trucks that he has and grandfather them in. MS. HUBBARD: All five? COMMISSIONER COLETTA: All five for maybe like 20 years so the building (sic) has value as far as resale of the business and offer them a certain amount of money. COMMISSIONER HALAS: No. COMMISSIONER COLETTA: That might be a deal to go with. MS. HUBBARD: I mean, that's an idea. One of my concerns is I don't know how many other moving truck sign people might want to come in. COMMISSIONER HALAS: That's right. COMMISSIONER COLETTA: Well, I was thinking we'd get an ordinance in place where we'd lock everything up. We don't know how long that would take. MS. HUBBARD: It would take about eight months if we dedicated ourselves to it. COMMISSIONER COLETTA: And then the question would be, did we discriminate against him, might be another argument. But I mean, if you've had it where the new one's coming in, it would apply to then and he would be grandfathered in, recognized the special treatment. COMMISSIONER FIALA: No. COMMISSIONER HALAS: No. COMMISSIONER COLETTA: I'm just saying, if you can stop him, fine. But the thing is, we're going to pay a small fortune now. We might end up having to pay even more with his financing his business, not only the capital to work with, but advertising, too. MS. HUBBARD: I think he's open to discussing the Page 11 — Item #12B (Bonita Media Enterprises) April 22, 2008 grandfathering. COMMISSIONER COYLE: What's to be grandfathered? You're going to change the ordinance. MS. HUBBARD: He's -- bear in mind the ordinance that we could have enforced against him, the Court has basically said, you can't. COMMISSIONER COYLE: Yeah. MS. HUBBARD: He still has his trucks. COMMISSIONER COYLE: Yeah. MS. HUBBARD: So he's prohibited from enforcing the ordinance, which means that he should be able to start driving his trucks around, moving -- with the signs moving. That gives the board an opportunity to redraft the code to make it as restrictive as the first amendment will allow. And as to him, since he already has the trucks and they would be welcome until such time as the code comes in, at which point -- I mean, you can't retroactively apply that new code to him. I mean, I think that grandfathering argument is going to be a pretty value one any -- as to the existing trucks. COMMISSIONER HALAS: His business is not located here in Collier County. His business is up in Lee County. And he went -- he came down here to challenge us. MS. HUBBARD: Yes, he did, and he successfully challenged you. He won that argument. COMMISSIONER HALAS: Okay. So we give him the opportunity to work another eight months or so. Why should we give him anything -- any opportunity to be grandfathered in? I mean, once he -- once we come up with a new code and he's eliminated, not only is he, but everybody else that tries this. MS. HUBBARD: I think you can -- MR. KLATZKOW: I guess my question is, do we want to eliminate this activity when we do the code? I mean, this is -- in my Page 12 — Item #12B (Bonita Media Enterprises) April 22, 2008 mind, I always called this like the mobile billboard case. Is this something we want to regulate or not? CHAIRMAN HENNING: Well, I don't want to get too far on 286 about why we're here. Those issues need to be discussed individually with the commissioners or collectively in an open meeting. This is just about a settlement. MS. HUBBARD: Right. MR. KLATZKOW: But as to the grandfather issue, if we're going to amend the ordinance, to continue to bar this, I mean, we can talk about grandfathering. If we're not going to amend the ordinance in such a way that we're going to allow this, there is no grandfather. CHAIRMAN HENNING: The grandfather was brought up by Commissioner Coletta as a strategy of settlement. MR. KLATZKOW: Okay. CHAIRMAN HENNING: Right. MS. HUBBARD: And that is an issue, and that's one of the issues we've been discussing in our settlement discussions, which is, they have four or five trucks. They want to drive those trucks around in Collier County. They have indicated that they would be willing to drive them around in limited circumstances, such as, you know, only on certain main roads, only during certain hours, which I think would be -- I mean, if they're only driving on I-75 or U.S. 41 or streets like that, if they're only driving during certain times of the day, would that be acceptable to you? COMMISSIONER FIALA: Let me ask a question before we discuss that. MS. HUBBARD: Okay. COMMISSIONER FIALA: In other cities that have these moving trucks with the moving signs, have they shown that they've caused accidents? MS. HUBBARD: To my knowledge there are not a lot of cities that have moving trucks that have moving signs. I'm not really aware Page 13 — Item #12B (Bonita Media Enterprises) April 22, 2008 of any, frankly. MR. MUDD: Las Vegas. MS. HUBBARD: Las Vegas has them? MR. MUDD: Yes. MS. HUBBARD: Okay. COMMISSIONER HALAS: I suspect they have a lot of other things. MR. MUDD: Yeah. Well, they have a lot of other things, things that ran on those moving billboards that were not tasteful in my opinion. MS. HUBBARD: I can tell that you Lee County has moving signs, but they're stationary. The college has them, the City of Fort Myers has a moving sign, or had one they didn't use, stationary along the side of the road, pretty distracting also. But Edison College has a big one. But moving signs on trucks, that's -- I think that's a pretty unusual kind of sign thing. COMMISSIONER COYLE: By moving signs, do you mean signs that could be -- COMMISSIONER HALAS: Rotated. COMMISSIONER COYLE: No. The billboard industry is moving to LED signs -- MS. HUBBARD: Exactly, where the content -- COMMISSIONER COYLE: -- okay, so they can change the content and rotate it through -- MS. HUBBARD: That's exactly what -- COMMISSIONER COYLE: -- lots of different -- MS. HUBBARD: That's exactly what's on these trucks. COMMISSIONER COYLE: Okay. So we're not talking just about mechanical moving signs on moving vehicles. MS. HUBBARD: No. COMMISSIONER COYLE: We're talking about any kind of sign whose content can be changed. Page 14 — Item #12B (Bonita Media Enterprises) April 22, 2008 MS. HUBBARD: Correct. It's in motion. COMMISSIONER COYLE: Yes, it's in motion. MS. HUBBARD: The content of the sign is in motion. COMMISSIONER COYLE: So we're contemplating rewriting the ordinance in this case to prohibit those from being placed on vehicles, but they can be placed on a stationary billboard is; that what we're saying? MS. HUBBARD: Well, no. Let me get back. What we're saying is we have a more limited situation here we have a situation in which our sign code bans you know, signs whose content moves around and are mounted vehicles. That's the provision that's in place here. And that is the provision that was -- that he was cited for, the owner of this business. And the Court has said that we cannot ban signs that are moving, signs that are be mounted on trucks, and the reason that we cannot is because the provision that -- where it's located in the sign code, we are not -- we allow certain moving signs but we don't allow others. And then he finds this problem to be endemic throughout the sign code. And he's even found that the initial provision in our sign code doesn't pass constitutional muster. So even if you took that out of the sign code, based upon his order, there are other provisions within the sign code that would need to conform to what he considers to be first amendment prerequisites that we don't meet. So yes, the case is directed towards that one thing, but he found other infirmaries within the sign code that need to be addressed before we could enforce it. And that's almost like giving an invitation to other businesses to file some suit also. COMMISSIONER FIALA: Right. CHAIRMAN HENNING: Well, getting back to the purpose why we're here is hopefully to formulate some sort of resolution to this by a settlement. Page 15 — Item #12B (Bonita Media Enterprises) April 22, 2008 MS. HUBBARD: Our direction to us to proceed in some manner. CHAIRMAN HENNING: Okay. MS. HUBBARD: And then Jeffs second request, which is a part of the settlement discussion -- CHAIRMAN HENNING: Okay. MS. HUBBARD: -- for the federal court, for me to be able to tell the Court we are very serious about conforming our sign code to the dictates of the Court's order. CHAIRMAN HENNING: Okay. MS. HUBBARD: So have a motion when we go out that we will amend the sign, either delete it, amend it, or change it in some way to make it conform to the Court's order. CHAIRMAN HENNING: All right. That's an easy one. MS. HUBBARD: Right. CHAIRMAN HENNING: Let's deal with that one, if we can, to give staff direction when we go out into the public meeting to amend our code to meet the constitutionality of the United States. MS. HUBBARD: Okay. CHAIRMAN HENNING: Can we move on from that and move into the settlement? Do you want to talk about constitutionality? COMMISSIONER HALAS: Yeah. And I think we ought to drop where we grandfather somebody in because I think all that does is open the door up for somebody else to challenge us at a later date. I think we ought to stay in the grounds of amending the sign code as it is, and then I think we have to figure out what we're going to come up with as an offer other than grandfathering somebody in, because I think that's just going to open up the door, Pandora's box. CHAIRMAN HENNING: Well, actually that's in the first discussion as far as settlement agreement. So if we're deposed (sic) about giving -- we're ready to move on from giving direction from the sign code changes to meet the Constitution, then we can go into some Page 16 — Item #1 2B (Bonita Media Enterprises) April 22, 2008 kind of direction of settlement. COMMISSIONER HALAS: Yep. CHAIRMAN HENNING: Okay. We're okay with the direction of the sign code. MS. HUBBARD: Is it your -- I guess, as part of the settlement discussion also, is it the intention of this group that the staff endeavor to come up with a provision in the sign code that would somehow ban the use of moving signs on vehicles? That's -- CHAIRMAN HENNING: Well, don't we have to do that in a public forum? Because it has nothing to do with the issue of this settlement negotiation strategies. MS. HUBBARD: Well, the reason that it does is because if we go back into the settlement discussions with opposing counsel and we basically say to them, you know, the moving truck vehicle issue is not going to be part of the new sign code revision, then that's an issue that's off the table. They're going to be able to drive around with the trucks, and I take it that is not --judging from Commissioner Halas's appearance -- that is not what you wish to have happen. COMMISSIONER HALAS: Exactly right. MS. HUBBARD: At least not in the first instance. So that's not on the table for settlement. COMMISSIONER HALAS: It's just my feeling. I don't know how my other fellow commissioners -- they ought to chime in also where they are. COMMISSIONER FIALA: I agree. MS. HUBBARD: Oh, don't tell me how you agree. That's one of the things for discussion. CHAIRMAN HENNING: May I just say that the previous board went through painstaking amendment to the sign code to try to make it conform with the character of the community. MS. HUBBARD: Yes. CHAIRMAN HENNING: And I -- from my aspect, I would like Page 17 — Item #12B (Bonita Media Enterprises) April 22, 2008 to keep that character of the community and also be constitutionally correct so we're not challenged in the future. MR. KLATZKOW: The rub is this, Commissioner: The stricter your sign code is to keep character, the more likely some judge is going to find it unconstitutional. CHAIRMAN HENNING: It's got to be a balance. MR. KLATZKOW: And that's the problem. We have to take some risk that some judge at some point in time is going to say you can't do that. And we've had a sign code in place for a long time. They've given us this thing. Now we've got one judge saying, well, you can't do this. My recommendation is we fix this end of the sign code, then if there's something that's really apparent in the other end of the sign code, we fix that, but we don't really overhaul it; because if you're going to get to the point where we're bullet proof, then you're going to get to the point where you're Las Vegas. That's really the reality. MS. HUBBARD: So does that -- is that your understanding, that we attempt to revise the sign code in such a form that this type of vehicle also continues to be disallowed in Collier County? MR. KLATZKOW: I think that's open for the board's discussion, but I think clearly we're not going to tell this guy that we're not going to put it in. MS. HUBBARD: No, no, I agree. But we do have -- you know, there are other areas that I just want to toss out there for you to think about, and one of them is that the roads that the truck travels on -- you know, I-75 is in Collier County. That's a major thoroughfare for commerce. 41 is a major thoroughfare for commerce. And to the extent that a local government body can restrict, you know, trucks that come in from different places all over the place, it gets to be a little difficult. I'm just going to let you know that. It's not an easy thing to craft. CHAIRMAN HENNING: Well, we shouldn't have code Page 18 — Item #12B (Bonita Media Enterprises) April 22, 2008 enforcement running down the street trying to enforce those. That's why we've got a Sheriffs Department. Commissioner Coletta? COMMISSIONER COLETTA: Yes. Going back to a possible negotiated settlement. Let me understand correctly. Did you say that the judge may find in favor of this person in such a way that he would be able to continue to operate continuously? MS. HUBBARD: Yes. COMMISSIONER COLETTA: Regardless of what ordinance we pass? MS. HUBBARD: Well, I don't know about what ordinance we pass. None of us at this table can tell you what that ordinance would say. It would have to be drafted and then reviewed. But right now, the county has been enjoined from enforcing the portion of the ordinance that this person was cited for. So even if you wanted to enforce it you could not because we've been ordered not to do that. COMMISSIONER COLETTA: Let me rephrase the question. What's the likelihood that we could pass an ordinance that would cause them to cease traveling in Collier County with movable signs? MR. KLATZKOW: You'd have to get rid of barbershop signs, you'd have to get rid of temperature signs. Everything that moves, you'd have to get rid of. COMMISSIONER COLETTA: Well, that's kind of understood to be able to keep anyone else from coming in. I'm talking about the settlement now. What would -- you would have to -- you know, you would have to stop the barbershop signs? You couldn't -- they can't make exemptions? MS. HUBBARD: That's the problem, there are the exemptions. You say the barber can do it, but the beef cutter can't or hairdresser can't. That's the problem that the Court has with those exemptions. COMMISSIONER COYLE: You can't separate commercial Page 19 — Item #12B (Bonita Media Enterprises) April 22, 2008 signs on a building from vehicles on a road? You can't have a separate code for vehicles under a traffic code of some kind? MS. HUBBARD: You may, and not only that, you may be able to show by empirical evidence, which we don't have, that they pose a potential danger. COMMISSIONER COYLE: Safety, yeah. MS. HUBBARD: But I mean, these are the things that would have to be reviewed. Our introduction to our code doesn't have those kinds of citations in it, and he's found the introduction to our code not to pass constitutional muster either. CHAIRMAN HENNING: Actually, Commissioner Coyle, that really should be an ordinance for the Sheriffs Department to enforce. COMMISSIONER COYLE: Well, yeah. But I'm just wondering, can we pass that kind of ordinance and would it stand up to the Court's challenge? MS. HUBBARD: I tell you this -- this is my opinion, and I think -- I haven't discussed it with Jeff in terms of the settlement situation -- but if it's a company that comes in from another state that has a moving sign on the truck, I think you'd have a lot of trouble trying to stop them from coming into Collier County. COMMISSIONER COYLE: Interstate commerce. MS. HUBBARD: Right, interstate commerce. And the principles that -- although, you know, you're not at this point impeding on interstate commerce, the principles are relatively similar. It's not easy to do, you know, what you want to do, and that's what tempered our settlement position and posture in the lawsuit. That doesn't mean that you can't do it, but it's difficult. COMMISSIONER COYLE: Well, I presume that they know all this. MS. HUBBARD: Yes. COMMISSIONER COYLE: And they are not going to be particularly swayed by any attempt by us to legislate them out of Page 20 — Item #12B (Bonita Media Enterprises) April 22, 2008 business. MS. HUBBARD: No. COMMISSIONER COYLE: Because they will probably believe that they can win this suit no matter what we do, and they would be -- the lawyers would be delighted to see us do that because they could run their fees up to -- MS. HUBBARD: Exactly. COMMISSIONER COYLE: -- to a million dollars just fighting us on our -- MS. HUBBARD: Right. COMMISSIONER COYLE: -- attempts to close the loopholes. So I think the thing we need to focus on is getting out of this box as cheaply as possible. MS. HUBBARD: Right. COMMISSIONER COYLE: And they've asked for attorneys' fees and damages. MS. HUBBARD: Correct. COMMISSIONER COYLE: They haven't asked for punitive damages. MS. HUBBARD: No. COMMISSIONER COYLE: Good. So why can't we propose to them that we will pay attorney fees and damages subject to their demonstration or providing proof sufficient to establish the level of those damages up to a maximum amount, which is what they've specified. MS. HUBBARD: Okay. That sounds reasonable. The option to deal with that, I think, would be possibly to submit the costs and attorneys' fees to mediation and have the mediator look at all these documents and advise what the mediator thinks. That's an option. COMMISSIONER COYLE: Can you do that with -- also with the damages? MS. HUBBARD: I would think so. Page 21 — Item #12B (Bonita Media Enterprises) April 22, 2008 COMMISSIONER COYLE: Because you look at the number of trucks a person has, how much he gets per sign for revenue and how long he could have been operating those trucks, and you could, I think, come up with a fairly accurate estimate of the lost business. MS. HUBBARD: I think so, too. And the -- but the other issue Commissioner Halas raised needs to be addressed, I think, as the one that Commissioner Coletta raised, about what do you do with these trucks. You can't stop them at this point because of the court order. COMMISSIONER HALAS: He's got Lee County that he can use them in. MR. KLATZKOW: He's in Naples, too. MS. HUBBARD: Well, you've got -- unfortunately the judge basically enjoined us from stopping him in Collier County, so there's an injunction out there that says we can't enforce it. COMMISSIONER HALAS: So what are we talking total damages here, $500,000 almost? MS. HUBBARD: $450,000. COMMISSIONER FIALA: He's still been able to drive his trucks all over and still use those signs. Whether they're moving or not, he's still been able to enjoy all of that advertising. COMMISSIONER COYLE: No, he hasn't been able to do that in Collier County, has he? Has he been doing that? MS. HUBBARD: He's been using the trucks, but the signs have not been changing. COMMISSIONER FIALA: Right. He's still been driving around. MR. KLATZKOW: I think if we go into mediation, it will give us something far less than $500,000. COMMISSIONER FIALA: Boy, we sure should. I mean, he's getting free money as it is. He's still been able to use his trucks. MS. HUBBARD: Right. COMMISSIONER FIALA: He still had to pay his overhead, Page 22 — Item #12B (Bonita Media Enterprises) April 22, 2008 which should be deducted and his gasoline and everything else that's involved with that, and conduct business almost as usual. MS. HUBBARD: Right, I agree. COMMISSIONER COYLE: Well, that's why getting it into mediation and requiring them to substantiate that -- MS. HUBBARD: Right, their cost. COMMISSIONER COYLE: -- business loss. CHAIRMAN HENNING: Reasonable. COMMISSIONER COYLE: Yes. MR. KLATZKOW: So the direction from the board is going to be that the county manager cease applying these sign codes in an unconstitutional manner, get the County Attorney's Office working with the County Manager's Office, amend the sign code to conform to the U.S. Constitution. MS. HUBBARD: To the Court's order. MR. KLATZKOW: To the Court's order, and that the board would like for us to get into mediation with the other side to discuss attorneys' fees and damages. CHAIRMAN HENNING: Reasonable. MR. KLATZKOW: Reasonable attorneys' fees and damages. MS. HUBBARD: Do you want us -- and I assume you want us to return to you at some point to talk about whether or not the -- I know you have -- I don't want you to tell us about how you feel about this in a vote, but it seems to be at least one commissioner feels strongly that these particular types of signs on trucks should not be permitted if at all possible. MR. KLATZKOW: That's for the LDC process. MS. HUBBARD: Right. So grandfathering in is not on the table is what he's saying. MR. MUDD: I just have one question, when the board gives me direction not to enforce the sign code, okay. MR. KLATZKOW: In an unconstitutional manner. Page 23 — Item #12B (Bonita Media Enterprises) April 22, 2008 MR. MUDD: I got it. Okay. I got it. MR. KLATZKOW: Okay. MR. MUDD: Because the minute you say don't do the sign code, anybody that wants to go out for the next eight months and get big huge signs with moving cars and stuff, you go out there and go do it. And I need some piece that says in an unconstitutional manner. MR. KLATZKOW: Unconstitutional manner. MR. MUDD: And then we'll get with the county attorney if we have a sign issue -- MR. KLATZKOW: Exactly. MR. MUDD: -- make sure that we're on the safe side. MR. KLATZKOW: I think this stops the bleeding with the Court. We're telling the Court we're stopping, we're getting into a new ordinance, and we're done. MS. HUBBARD: And staff will be directed by motion to redraft the sign code. COMMISSIONER FIALA: Is there any way we could name that rather than moving sign? Because moving sign could be so many things, like as we said barber pole, but this one is moving on a vehicle on the road. MS. HUBBARD: Moving in two different ways. COMMISSIONER FIALA: Is there a different name we could give to it -- MR. KLATZKOW: Yeah, we can certainly look at that. COMMISSIONER FIALA: -- so we could differentiate? MS. HUBBARD: Yes. We should look at that. CHAIRMAN HENNING: Okay. We said we'd be back at 1 : 11. And it's 12:58, doesn't give time for the court reporter to -- COMMISSIONER COYLE: Have a break and have lunch. CHAIRMAN HENNING: So are we done with this closed session? MS. HUBBARD: Yes. Are there any other questions? Page 24 — Item #12B (Bonita Media Enterprises) April 22, 2008 CHAIRMAN HENNING: Okay. Do you need to adjourn it? MS. HUBBARD: Yes. We'd like to adjourn the closed session at this hour, whatever time it is, and reconvene in the open session. (The closed session meeting concluded.) ***** STATE OF FLORIDA ) COUNTY OF COLLIER ) I, Terri L. Lewis, Notary Public, do hereby certify that the foregoing proceedings were taken before me at the date and place as stated in the caption hereto on Page 1 hereof; that the foregoing computer-assisted transcription, consisting of pages numbered 2 through 36, inclusive, is a true record of my Stenograph notes taken at said proceedings. Dated this 30th day of April, 2008. TERM L. LEWIS, Notary Public, State of Florida My Commission No. DD 447012 Expires: August 23, 2009 Page 25 — Item #12B (Bonita Media Enterprises)