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Case No. 93-555-CA Motion to Dismiss 1993/10/06i ~ OKEECHOBEE BEACH WATER- r ASSOCIATION, INC., Plaintiff, IN THE CIRCUIT COURT OF THE NINETEENTH JUDICIAL CIRCUIT IN AND FOR OKEECHOBEE COUNTY, FLORIDA CIVIL DIVISION VS. CITY OF OKEECHOBEE, FLORIDA, and OKEECHOBEE COUNTY, FLORIDA Defendants. CITY OF OKEECHOBEE, FLORIDA , Defendant, VS. OKEECHOBEE BEACH WATER ASSOCIATION, INC., Plaintiff. CITY OF OKEECHOBEE, FLORIDA, Defendant and Cross-Plaintiff, VS. OKEECHOBEE COUNTY, FLORIDA, CLIFF BETTS, Jr.*, TOMMY CLOSE, CHARLES W. HARVEY, SUSAN B. HUGHES, and STEPHEN PORTER, not individually, but in their capacities as the commissioners of Okeechobee County, CHRISTOPHER W. CHINAULT, not individually, but in his capacity as County Administrator for Okeechobee County. Defendant and Cross-Defendants, Case No. 93-555-CA k~~ lqql~ CITY OF OKEECHOBEE'S ANSWER AND AFFIRMATIVE DEFENSES, TO AMENDED COMPLAINT, COUNTERCLAIM AGAINST OKEECHOBEE BEACH WATER ASSOCIATION. INC., AND CROSSCLAIM AGAINST OKEECHOBEE COUNTY. ITS COMMISSIONERS. AND STAFF Defendant in the above-styled action, CITY OF OKEECHOBEE, FLORIDA ("City"), answers the Amended Complaint for Declaratory Judgment filed by Plaintiff OKEECHOBEE BEACH WATER ASSOCIATION, INC. ("OBWA", "Plaintiff" or "Association"), counter sues OBWA and crossclaims Defendant OKEECHOBEE COUNTY, FLORIDA, CLIFF BETTS, Jr., TOMMY CLOSE, CHARLES W. HARVEY, SUSAN B. HUGHES, and -STEPHEN PORTER, not individually, but in their capacities as the commissioners of Okeechobee County, and CHRISTOPHER W. CHINAULT, not individually but in his capacity as County Administrator for Okeechobee County and states as follows: ANSWER OF DEFENDANT CITY OF OKEECHOBEE 1. The City admits each and every allegation of paragraphs 1, 3, 4, 5, 7, 13, 17 and 18 of the amended complaint. 2. The City denies each and every allegation of paragraphs 9, 15 and 16 of the amended complaint. 3. The City admits the allegations of paragraph 2 of the amended complaint insofar as that paragraph states that plaintiff is a nonprofit corporation, but denies the remainder of the allegations of such paragraph. 4. The City denies the allegations contained in paragraph 6 of the amended complaint insofar as that paragraph states that Plaintiff is experiencing delays in the permitting process 2 because of objections raised by Defendant City. The City further states that it is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations of such paragraph. 5. The City admits the allegation of Paragraph 8 insofar as that paragraph states that OBWA has applied to the South Florida Water Management District for a consumptive use permit. The City is without knowledge as to the precise nature of the area which OBWA intends to serve as purported to be reflected in Exhibits "E" and "F". 6. The City admits the allegations of Paragraph 10 of the amended complaint insofar as that paragraph states that Defendant City obtained a water use permit from the Water Management District in 1976, but denies the remainder of the allegations of such paragraph. 7. The City admits the allegations contained in Paragraph it of the amended complaint insofar as that paragraph states that in June 1983, Defendant City enacted Ordinance No. 488 to claim the described area in Okeechobee County as a zone in which Defendant City is authorized to provide water services pursuant to Chapter 180, Florida Statutes, but denies the remainder of the allegations of such paragraph. 8. The City admits the allegations contained in paragraph 12 of the amended complaint insofar as that paragraph states that Plaintiff has been advised by the South Florida Water Management District that there appears to be an overlap in service area, but 3 denies the remainder of the allegations of such paragraph. 9. The City denies the allegations contained in paragraph 14 of the amended complaint insofar as that paragraph states that Plaintiff has the ability to serve its members in the overlap area which is part of the service area Plaintiff has claimed since 1965. The City further states that it is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations of such paragraph. 10. The City admits the allegations of paragraph 19 of the amended complaint insofar as that paragraph states that Defendant County has an interest in the proceedings, but denies the remainder of the allegations of such paragraph. 11. The City denies each and every allegation in the amended complaint, not herein admitted, controverted or specifically denied. CITY'S AFFIRMATIVE DEFENSES The City further affirms: First Affirmative Defense 12. OBWA is not a "private company" as defined by Section 180.05, Florida Statutes. Second Affirmative Defense 13. A determination or declaration of OBWA's rights under its existing contract with the City, under Chapter 180, Florida 4 Statutes, or under the franchise purportedly granted to OBWA by Okeechobee County is not required for OBWA to properly and economically operate and maintain its existing water distribution system. Third Affirmative Defense, 14. A determination or declaration of OBWA's rights under its existing contract with the City, under Chapter 180, Florida Statutes, or under the franchise purportedly granted to OBWA by Okeechobee County is not required for OBWA to fulfill the purposes of Chapter 180, Florida Statutes. Fourth Affirmative Defense 15. The City did not need the consent of OBWA in 1976 when it obtained a water use permit from the Water Management District, did not need the consent of OBWA in 1983 when it enacted Ordinance No. 488, and does not need OBWA's consent today because OBWA was not, and is not, a system, work, project or utility of a similar character to the City's water and sewer system, works, projects or utility as provided in Section 180.06(9), Florida Statutes. Fifth Affirmative Defense 16. The City did not need the consent of OBWA in 1976 when it obtained a water use permit from the Water Management District, did not need the consent of OBWA in 1983 when it 5 enacted Ordinance No. 488, and does not need OBWA's consent today because OBWA was not, and is not, actually operating in a territory immediately adjacent to the City as provided in section 180.06(9), Florida Statutes. Sixth Affirmative Defense 17. At all times relevant hereto, OBWA has had no ability to serve any users potable water absent the purchase of such water from the City. OBWA does not have the present ability, nor any ability in the foreseeable future, to serve any users potable water absent the purchase of such water from the City. Seventh Affirmative Defense 18. If OBWA is determined to be a "private company" under Section 180.05, Florida Statutes, it has not sought the City's consent to construct a system, work, project or utility within the City's Chapter 180 service area. Eiahth Affirmative Defense 19. OBWA is guilty of laches in not commencing this action for a declaration of its rights under either its 1977 agreement with the City or Chapter 180, Florida Statutes, within a reasonable time after Ordinance No. 488 was enacted in June of 1983 over ten (10) years ago. With full knowledge of the City's intent to enact Ordinance No. 488, OBWA stood by and permitted its enactment to occur without taking any steps to 6 ' perfect its claim or to notify the City of its claim until the filing of this action. Furthermore, OBWA knew of the enactment of Ordinance No. 488 when, in 1985, the Association entered into its existing agreement with the City. At no time during the two year period between the 1983 enactment of Ordinance No. 488 and the execution of the 1985 agreement with the City did OBWA take any steps to perfect its claim or to notice the City of its claim. With full knowledge of the City's action having enacted Ordinance No. 488, OBWA entered into its existing agreement with the City without taking any steps to perfect its claim or to notify defendant City of the claim until the filing of this action. Ninth Affirmative Defense 20. OBWA was, and remains, the agent and franchisee of the city in providing potable water to users located within the City's Chapter 180 service area south of the boundary described in the 1977 and 1985 agreements. Tenth Affirmative Defense 21. OBWA has no superior legal right to either a service area or to serve its existing and future members in the purported "overlap" area or other portion of the City's Chapter 180 service area by virtue of its agreement with the City. Under both the 1977 and 1985 agreements, the City retained the right to serve, and has served, new water users south of the boundary identified 7 in the agreements. Eleventh Affirmative Defense 22. OBWA has no superior legal right to a service area or to serve its existing and future members in either the claimed "overlap" area or other portion of the City's Chapter 180 service area by virtue of its purported franchise from Okeechobee County. OBWA's claimed rights under the franchise from Okeechobee County have not been perfected because although OBWA applied to Okeechobee County for such a franchise, the Association and County failed to also obtain the City's consent for OBWA to enter into the franchise which allows the Association to construct, operate or maintain public works within the City's Chapter 180 service area as is required by Sections 180.14 and 180.19(2), Florida Statutes. THE CITY'S COUNTERCLAIM AGAINST OKEECHOBEE BEACH WATER ASSOCIATION, INC. The City counterclaims against OBWA and alleges: Jurisdiction 23. This is a civil action for declaratory and supplemental relief pursuant to Chapters 26 and 86, Florida Statutes. 24. This Court has jurisdiction pursuant to Section 26.012, Florida Statutes, and Sections 86.011 and 86.021, Florida Statutes. The Circuit Court in and for Okeechobee County, Florida, is the proper venue in which to bring this lawsuit. 25. Prior to filing this action, the City has performed all 8 conditions precedent and has complied with all statutory prerequisites, including the notice requirement of Section 164.103, Florida Statutes. Parties 26. The City of Okeechobee is a Florida Municipal Corporation and unit of local government under Article VIII, Section 2, of the Florida Constitution. The City's business offices are at 55 Southeast 3rd Avenue, Okeechobee, FL 34974. The City is a "municipality" and "local government" as defined by Section 180.01, and 163.3163(13), Florida Statutes (1993), respectively. 27. OBWA, is a not-for-profit association. OBWA's business offices are at 8840 Highway 78 West, Okeechobee, Florida 349074. Nature of the Controversv 28. The City of Okeechobee has owned and operated a potable water supply, treatment, pumping, storage, and water distribution system, and a sanitary sewage treatment system located in Okeechobee County, Florida since 1925. The City's water treatment plant is located on the Rim Canal at the north end of Lake Okeechobee. Since 1965, the City has provided OBWA with potable water under the terms of a series of bulk sale agreements. Copies of the series of agreements are attached as Exhibits "A", "B", licit and "D" and are incorporated by reference herein. 9 29. Through these 1965, a customer of the water from the City for the water through a sys, members. 30. In their 1970 agreements, OBWA is, and has been since City's and as such, purchases potable resale to its members. OBWA distributes tem of pipes, which it owns, to its agreement, the City and OBWA agreed upon a boundary shown on a map which was attached to the agreement. They further agreed that with the exception of the City's then present customers located south of the boundary, the City would sell water only north of the boundary-and OBWA would sell water only to the south of the boundary, unless the other party agreed to a change in the boundary. 31. The parties amended their agreement in 1977 to provide that the City could serve new water users south of a boundary identified by legal description if "potential user[s] had been refused service by OBWA". The 1977 agreement did not, however, amend the provision originally agreed to in 1970 whereby OBWA was prohibited from providing service to any user north of the described boundary without the City's consent. The City has endeavored to serve new water users south of the agreed upon boundary when OBWA has refused to provide services. 32. In June of 1983, the City enacted Ordinance No. 488 which declared the following described area in Okeechobee County as the City's water and sewer service area pursuant to Chapter 180, Florida Statutes ("Chapter 180 Service Area"): Being all of Sections 27, 28, 33 and 34, Township 36 South, Range 35 East AND all of 10 Sections 3 through 30, and Sections 32 through 36, Township 37 South, Range 35 East AND the West h of Section 29, all of Sections 30 and 31 and the Northwest ; of Section 32, Township 37 South, Range 36 East, AND the North k of Section 6, Township 38 South, Range 36 East lying North of Lake Okeechobee AND all of Sections 3,4 and the North k of 5, Township 38 South, Range 35 East lying North of Lake Okeechobee. 33. In August of 1985 the parties entered into their existing agreement which carried forward from the 1977 agreement the identical language regarding service to new water users north and south of the boundary and provided that the terms of the agreement shall extend to September 30, 1994. 34. The City currently provides potable water under South Florida Water Management District Water Consumptive Use Permit No. 47-00004-W ("Permit") to its citizens as well as to other customers, including OBWA, located outside the City's boundaries but within the Chapter 180 Service Area. Copies of the City's permit and Ordinance No. 488 are attached as Exhibits "Ell and "F," respectively, and are incorporated by reference herein. 35. On September 5, 1991, OBWA notified the City that it would no longer seek to purchase water from the City after its agreement with the City expires on September 30, 1994. 36. OBWA has now applied to the Florida Department of Environmental Protection for permits to construct a water treatment plant and water mains. In addition, on December 4, 1992, OBWA applied for a water consumptive use permit from the South Florida Water Management District stating its intention to purportedly serve a portion of the unincorporated area of 11 Okeechobee County which overlaps with, and therefore conflicts with, the City's Chapter 180 Service Area. This has caused a dispute between the City, OBWA and the South Florida Water Management District that is currently pending before the Division of Administrative Hearings in Case No. 93-5505. The City is the Petitioner in that administrative proceeding to challenge OBWA's request for permit, while OBWA and the Water Management District are respondents. 37. OBWA has no present ability to serve, nor any ability in the foreseeable future, to serve any users potable water, absent the purchase of such water from the City. OBWA has never owned or operated a sanitary sewage treatment system or potable water supply, treatment and pumping system. OBWA has not sought the City's consent to construct such a system, work, project or utility system within the City's Chapter 180 Service Area as it is required to do under Section 180.06(9), Florida Statutes. 38. The City contends that it has the superior legal right, and present ability, to serve its existing and future customers within its Chapter 180 Service Area by virtue of its existing agreement with OBWA, by virtue of rights granted the City under Chapter 180, Florida Statutes, by virtue of the planning, improvements and expansions it has made to its system, and by virtue of the non-renewal of its agreement with OBWA as a result of the Association's decision not to renew its privilege or franchise from the City to construct, operate or maintain the Association's water distribution system when the existing 12 agreement expires on September 30, 1994. 39. Inasmuch as the City seeks to invoke the declaratory judgment powers of this Court to grant the requested relief, the above allegations plainly establish: a. That there is a bona fide, actual, present and practical need for the declaration; b. That a present, ascertained or ascertainable state of facts is involved; C. That a right, power, or privilege of the City depends upon the facts stated or the law applicable to the facts; d. That the dispute involves an actual, present, adverse, and antagonistic interest between the parties and the subject matter; e. That the adverse interest is before the Court; and f. That relief is not sought merely for the purpose of procuring legal advice or satisfying curiosity. WHEREFORE, the CITY OF OKEECHOBEE, FLORIDA demands judgment declaring the rights of the City of Okeechobee under its existing contract with OBWA, and under Chapter 180, Florida Statutes, to serve the City's existing and future customers with potable water services, and demands judgment describing the extent of the City's service area for potable water services, awarding the City such court costs as are equitable and allowed under Section 86.081, Florida Statutes, and granting such supplemental and additional relief as appropriate. 13 CROSSCLAIM AGAINST OKEECHOBEE COUNTY, ITS COMMISSIONERS AND STAFF, The City crossclaims against Okeechobee County, Cliff Betts, Jr., Tommy Close, Charles W. Harvey, Susan B. Hughes, Stephen Porter and Christopher W. Chinault and alleges: Parties 40. Okeechobee County, Florida ("County"), is a political subdivision of the State of Florida and non-charter county under Article VIII, Section 1(f), of the Florida Constitution. The County is also a local government as defined by Section 163.3164(13), Florida Statutes. The County's Business Office is located in the Okeechobee County Courthouse at 304 N.W. 2nd Street, Room 106, Okeechobee, FL 34972. 41. Cliff Betts, Jr., Tommy Close, Charles W. Harvey, Susan B. Hughes, and Stephen Porter are each citizens and residents of Okeechobee County, Florida. They are duly elected county commissioners, serving as the five members of the Okeechobee County Commission. These parties are sued, not in their individual capacities, but in their capacities as Okeechobee County Commissioners. 42. Christopher W. Chinault is the County Administrator for Okeechobee County. Mr. Chinault's address is 304 N.W. 2nd Street, Room 106, Okeechobee, FL 34972. Mr. Chinault is the chief administrative officer for Okeechobee County and is responsible for the administration of all departments and staff responsible to the Board of County Commissioners of Okeechobee 14 County. Mr. Chinault is sued, not in his individual capacity, but in his capacity as County Administrator for Okeechobee County. Nature of the Controversy 43. On or about May 1, 1991, the respective governing bodies and boards of the City, Okeechobee County and OBWA designated representatives to began a series of meetings and discussions about the feasibility of forming a unified county- wide utility authority. Such a utility authority would merge the City's water and sewer systems with OBWA's water distribution system under the aegis of an agreed upon governing structure which would also recognize the interests of Okeechobee County which does not provide public supply potable water and sanitary sewer facilities within the County. Those meetings and discussions are ongoing today and the participating parties are awaiting the results of an appraisal of the City's current water supply and sanitary sewer systems. 44. On April 12, 1993, the Board of County Commissioners of Okeechobee County published notice of their intent to consider the adoption of a county ordinance granting a non-exclusive franchise to OBWA to operate and maintain water and sewer systems in a portion of the unincorporated area of Okeechobee County. The notice stated that the Board would hold a special public hearing on April 29, 1993 "for the purpose of receiving comments and suggestions in consideration of the adoption of the proposed is ordinance." 45. Paragraphs (A) and (B) of Section 2.01 the ordinance purport to grant a right, privilege or franchise to OBWA for purposes of operating a water and sewer system and supplying water, sewer service or reuse water to persons and corporations "within and beyond" the limits of a service area described in the ordinance. Section 3.02 of the ordinance provides: "The construction, maintenance and operation of water system and sewer system facilities, both as to those portions located within the Service Area and those portions located beyond-the Service Area, shall be subject to the prior approval of the County..." The grant of authority clause of the ordinance allows OBWA to extend its water and sewer facilities "within and beyond" the described area. OBWA has alleged, however, in its Amended Complaint that the service area described in the franchise agreement "is the same service area Plain- parcels currently being consent of [OBWA]...and in [OBWA's] consumptive Management District." 46. Section 2.07 tiff has served since 1965, less those served by the Defendant City with the virtually the same service area described use permit application with the Water of the ordinance reserves to the County the right to purchase the water and sewer system of the Association for no more "than the amount of any outstanding indebtedness ...or other obligations issued by the Association to finance the facilities or operations of its systems, if any, plus $100 additional consideration." In consideration of the 16 Association's agreement to limit the amount payable by the County to acquire OBWA's water and sewer system, the franchise agreement further provides: Section 2.07 RIGHT TO PURCHASE ASSOCIATION FACILITIES...(C)...(T3he County or its successor in interest shall take title subject to a covenant running with the land and systems so acquired which requires the grantee, unless otherwise agreed to by the Association, (1) to operate any water or sewer system acquired from or formerly operated by the City of Okeechobee on a self- liquidating basis, i.e., to impose rates and charges for the services provided by such systems that-are sufficient to pay the debt service, operating and maintenance expenses and all other costs properly allocable to such systems and (2) to segregate any system acquired from the Association from any system acquired from or formerly operated by the City of Okeechobee. Additionally, any future contract by which the County or its successor in interest agrees to transfer title to the Association's water and sewer system shall include a covenant requiring the transferee to operate any water or sewer system acquired from the City of Okeechobee on a self- liquidating and segregated basis, as aforesaid, specifying that the Association shall be a third-party beneficiary of such covenant. This subsection (C) shall not be construed to prohibit any physical interconnection between the Association's water or sewer system and any water or sewer system acquired from the City of Okeechobee to enhance either system's reliability for health and safety purposes on a temporary basis. 47. Although the franchise ordinance and agreement purport to be "non-exclusive" Section 3.11 of the ordinance provides: Section 3.11 MANDATORY USE OF ASSOCIATION FACILITIES AND SERVICES. All lands, buildings, premises, persons, firms and corporations or other users within the Service Area, shall use the water and sewer 17 facilities of the Association, or any other service provider authorized by the County, when and where ever such services and facilities become available; and for such purposes, the Association shall be entitled to seek injunctive relief, either mandatory or prohibitory, to enforce the use of Association facilities or services. 48. On April 29, 1993, the City provided the County with written objections to the County's intended action concerning the adoption of the proposed franchise ordinance. A copy of the City's written objections are attached as Exhibit "G" and incorporated by reference herein. 49. On April 29, 1993, the Board of County Commissioners of Okeechobee County unanimously adopted Ordinance No. 93-5 without making any changes to the proposed ordinance which had been first noticed and brought to the City's attention on April 12, 1993. A copy of Ordinance No. 93-5 is attached as Exhibit "H" and is incorporated by reference herein. Prior to adopting the ordinance, County Administrator Chinault indicated that Staff had worked diligently on the agreement and unanimously supported the adoption of the ordinance. The County Attorney stated that Staff had requested authorization to advertise for this public hearing. When questioned by Commissioner Close as to whether the ordinance will impede the possibility of a utility authority in the future between the County, the City and OBWA, the County Attorney stated that even though the City had submitted written comments objecting to the service area in the franchise agreement as infringing upon the City's Chapter 180 service area, the adoption 18 of the ordinance may help facilitate creation of the authority as 2 of the 3 parties are involved in the agreement. COUNT I - OKEECHOBEE COUNTYIS FRANCHISE ORDINANCE, IS UNCONSTITUTIONAL 50. Plaintiff adopts and incorporates by reference the contents of paragraphs 23 through 49 above as if fully set forth herein. 51. As a non-charter county, Okeechobee County does not possess the constitutional and statutory power to grant OBWA a franchise to operate and maintain water and sewer systems. The specific authority to enact a franchise ordinance is not listed among the enumerated county home rule powers in Section 125.01, Florida Statutes. 52. Under Article VIII, Section 1(f) of the Florida Constitution, non-charter counties only have the authority to enact ordinances which are not inconsistent with general or special law. Therefore, any statutory authority which Okeechobee County may have to grant a franchise to operate and maintain water and sewer systems under Section 125.01, Florida Statutes, must be construed together with any general law limitation on such authority. General laws on the subject of water and sewer, including Sections 180.06(9), 180.14, 180.19(2) and 125.42, Florida Statutes, are controlling statutes and constitute general law limitations on the County's authority provided in Section 125.01. In the alternative, these statutes impliedly preempt Okeechobee County's home rule powers under Section 125.01, 19 Florida Statutes. 53. Alternatively, even assuming that Okeechobee County does possess the home rule authority to enact such a franchise ordinance, in this instance the County's exercise of its authority to grant OBWA a conflicting service area is inconsistent with Chapter 180's recognition of the City's lawful exercise-of its authority to designate water and sewer service areas beyond its municipal boundaries. 54. The City seeks a declaration of constitutional invalidity of Okeechobee County Ordinance No. 93-5 which purports to grant to OBWA a franchise to provide water and sewer services within the unincorporated areas of Okeechobee County. This ordinance will both encourage and permit wasteful duplicate capital investments within Okeechobee County by OBWA, Okeechobee County and the City. WHEREFORE, the CITY OF OKEECHOBEE, FLORIDA, demands judgment declaring Okeechobee County Ordinance No. 93-05 to be unconstitutional, as described herein and awarding the City such court costs as are equitable and allowed under Section 86.081, Florida Statutes and granting such supplemental and additional relief as appropriate. COUNT II - VIOLATIONS OF GOVERNMENT-IN-THE-SUNSHINE, 55. Plaintiff adopts and incorporates by reference the contents of paragraphs 23 through 49 above as if fully set forth herein. 20 56. The Florida Open Government laws, including the "Government-in-the-Sunshine Open Meeting Law", Section 286.011, Florida Statutes, apply to the franchising process. 57. At a time known to the County, its commissioners, the County Administrator and OBWA, but unknown to the City, the County and OBWA entered into an agreement among themselves whereby the County would enact a franchise ordinance which contained a provision that an area of service would be granted by ordinance to OBWA which conflicted with the City's Chapter 180 service area and would thus allow OBWA to compete with the City in the same territory. The City believes that this arrangement was made in violation of the Sunshine Laws, and as part of an agreement between and among OBWA, Okeechobee County, various members of the Okeechobee County Commission, its county Administrator and staff and its attorneys. 58. The City believes that in this instance, Okeechobee County, through its County Commissioners, chose to employ its County Administrator, staff and attorneys to develop and implement the franchise ordinance in "quiet" consultation with representatives for OBWA without notice to the public. The County Administrator and staff and the County's attorneys were assigned, or proceeded without proper delegation, to go beyond the normal staff functions of fact-finding, assimilating and evaluating information into the realm of preliminary or threshold decision making which should have been conducted pursuant to notice as required by the statute. The City believes that the 21 County and its commissioners delegated to the County Administrator, its staff and attorneys the responsibility to choose from among various alternatives, which specific findings, functions and purposes to include or exclude in the franchise agreement and ordinance. These important policy matters were matters of great public importance and included fundamental fiscal and utility policy decisions which would have significant and lasting impacts concerning competing utilities, utility customers and the future viability of a unified utility authority within Okeechobee County. In doing so, the County's Administrator, its staff and its attorneys were exercising essential elements of the franchise decision making process and thereby achieved the status of a "board" or "commission" so as to bring themselves within the requirements of the Sunshine Law. 59. By the use of the device described in the preceding paragraph, the County and OBWA attempted to avoid Florida's Open Government Laws with respect to developing and implementing a franchise ordinance with OBWA, and further attempted to avoid the requirement of Section 180.06(9) that the City's consent be obtained. These efforts are void or voidable because they were undertaken in violation of the Sunshine Laws. WHEREFORE, the CITY OF OKEECHOBEE, FLORIDA demands that it have a judgment in its favor declaring Okeechobee County Ordinance No. 93-05 to be null and void, and of no force or effect, on the grounds which include that it was developed and adopted by Okeechobee County, its commissioners and staff in 22 violation of the Florida's Open Meetings Laws, and awarding the City its attorneys fees as provided for in Section 286.011(4), Florida Statutes, awarding the City such Court costs as are equitable and allowed under Section 86.081, Florida Statutes and granting such supplemental and additional relief as appropriate. _jf~day of October, 1993. Respectfully submitted this e,.4~, ~ V. Richard A. Lot lc FBN 593060 Fred McCormack FBN 256676 LANDERS & PARSONS P.O. Box 271 Tallahassee, FL 32302 (904) 681-0311 and John R. Cook, City Attorney FBN 262951 202 N.W. 5th Avenue Okeechobee, FL 34972 (813) 467-0297 and Michael Wm. Morell FBN 570280 310 West College Avenue, Room 222 Tallahassee, FL 32301-1406 (904) 425-8300 Attorneys for the City of Okeechobee CERTIFICATE OF SERVICE I HEREBY CERTIFY that the original and one copy of the City of Okeechobee's Answer and Affirmative Defenses, Counterclaim and Crossclaim has been filed by hand delivery on October 6, 1993 23 with Gloria J. Ford, Clerk of Circuit Court, 304 N.W. 2nd Street, Room 101, Okeechobee, FL 34972, and one copy has been served by hand delivery on October 6, 1993 to: Burton C. Connors, P.A. 301 N.W. 5th Street Okeechobee, FL 34972 John D. Cassels, Jr. P.O. Box 968 Okeechobee, FL 34972 Honorable Robert Butterworth Office of the Attorney General State of Florida The Capitol, PO-01 Tallahassee, FL 32399-1050 and that one copy has been served by Federal Express, Overnight Delivery, on October 6, 1992 to: Steve Walker, Esq. MESSER, VICKERS, CAPARELLO, LEWIS, GOLDMAN & METZ 2000 Palm Beach Lakes Boulevard Suite 900 West Palm Beach, FL 33409 Richard A. Lots ch 24