1993-08-04 City's reply to County Resp. to City M/Compel STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
CITY OF OKEECHOBEE, )
Petitioner, )
)
vs . )
DOAH Case No . 92-4909GM
) DCA Docket No. 92-4701-1
DEPARTMENT OF COMMUNITY AFFAIRS, )
)
Respondent. )
)
and )
)
OKEECHOBEE COUNTY, )
)
Intervenor. )
)
CITY OF OKEECHOBEE' S REPLY TO OKEECHOBEE COUNTY' S RESPONSE
TO THE CITY' S EXPEDITED MOTION TO COMPEL AND FOR SANCTIONS
FOR FAILURE TO MAKE DISCOVERY
Petitioner City of Okeechobee, by and through its undersigned
counsel , hereby files the following reply to Intervenor Okeechobee
County' s Response to the City' s Expedited Motion to Compel and for
Sanctions for Failure to Make Discovery:
1 . The County' s response does not deny the essential facts
set forth in the City' s expedited motion as grounds for the
requested relief. To the contrary, the County ' s response contains
no less than ten ( 10) admissions as evidenced by the following
quotes and paraphrases taken from the response : "the
County. . .concede[s] omissions" (S[ 1) , "the County. . .provide(s ]
certain clarifications" (SI 1) , "the County was . . . late" (S( 2 ) , the
County was "naive" (SI 3) , "the County failed to file a Motion for
Protective Order" (SI 3 ) , "the County cannot in all candor protest
too loudly. . .when it refrains from seeking a protective order" (1t
1
0
3) , "the County misplaced the City' s letter of May 10, 1993" (7{ 3) ,
the County was "confused" (II 4) , "any failure to respond is being
corrected" ( 1[ 4 ) , and "the County reaffirms its desire to fully
comply with the Rules" ( last It) .
2 . The City recognizes and accepts the admissions made by
the County in its response. The City also expects that answers
based on such admissions will be provided to the City by the County
with all due deliberate speed. However, the City strongly
disagrees with the County' s characterization in Paragraph 5 of its
response in which the County " (a]ttempt[s ] to group the substantive
complaints to the County' s answers . . . (into] four categories of
issues that must be resolved by the hearing officer . " The City' s
expedited motion was filed in accordance with DOAH Rule 60Q-
2 . 019 ( 3) , Florida Administrative Code. The expedited motion,
including Paragraph 15 of the motion in particular, speaks for
itself. Therefore it is improper for the County to "group" or
"summarize" for the hearing officer the City' s claims . With the
exception of the City' s specific requests referred to in the
County' s response for which the County has made "admissions" , the
County' s so called "attempt to group" glaringly omits reference to
such important discovery which the City has specifically sought and
is entitled to receive including, but not limited to the following:
A. the subject matters about which the County' s experts are
expected to testify, the substance of the facts and opinions
to which the County' s expert and fact witnesses are expected
to testify and why such testimony, at least with respect to
fact witnesses, is relevant to the case. (See County' s
insufficient and incomplete answers to Interrogatories 1 (c) ,
1(d) , 1(e) , 1( f) , 2 (d) , 4 (c) and 4 (d) such as : "Not determined
at this time, " "unavailable at this time" and statements such
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as "Okeechobee County Comprehensive Plan, " "Utilities and
Engineering aspects of County' s plan" and "Utilities and
Engineering aspects of the City' s Water and Sewer System" ,
etc . " The City contends that answers such as these do not
convey the substance of facts or opinions to which the
County' s expert and fact witnesses are expected to testify,
nor, as to factual witness testimony, does the information
convey anything helpful which assists the City in
understanding the relevancy of such testimony. ) ;
B. the addresses, phone numbers and "identification of
portions of each version of the plan' s Data & Analysis and
Goals , Objectives and Policies documents" worked on by at
least those persons which the County has identified in
Interrogatory 7 and which are on the County' s expert and fact
witness lists (Miller, Royce and Schriner) ; currently
residents of the County (Marsocci) ; or are currently employed,
under contract with, or formerly employed with the County
during the development and adoption of the plan (Malita and
Kelsey) ; and
C. the identification and production of any correspondence,
documents , reports or recommendations prepared by listed
expert and fact witnesses or employees or agents of the County
including but not limited to Miller, Royce and Kelsey.
3 . In its response the County also "reframes" its imprecise
objection to Interrogatory 13 as a relevancy objection and
summarily concludes without authority that the interrogatory is not
calculated to lead to discoverable evidence . In addition to the
reasons given in the City' s expedited motion, the County' s
objection to Interrogatory 13 fundamentally misapprehends the
general planning criterion of supporting data and analysis , the
relationship of this criterion to consistency determinations and
the de novo nature of a Section 120 . 57 ( 1) hearing. Furthermore,
the objection effectively invites the elimination of discovery and
plan litigation as to the threshold question of whether a plan is
supported by data and analysis , and whether evidence of a
community' s failure to implement an adopted plan is probative of,
3
r ,
or is designed to lead to evidence, which goes to the important
question of whether the plan as originally adopted is in compliance
or was ever intended to be in compliance with statutory and rule
criteria which require that plans be implemented. See Section
163 . 3177 ( 9 ) (g) , Florida Statutes .
4 . After admitting that its answers are lacking and overdue,
the County then refers to the City' s Second Set of Interrogatories
as "abusive and designed to circumvent the rule which states that
there is no continuing duty to supplement answers to
Interrogatories already answered" . This curious argument should be
rejected for three reasons . First, it has been waived. This type
of allegation goes to the "manner" in which discovery is conducted
as opposed to the substance of the City' s Second Set of
Interrogatories themselves . Such an allegation should have been
raised and substantiated by the County, if at all, in a timely
filed motion for a protective order. However, the County has
admitted that it waived its right to file such an order. Second,
the argument should be rejected because it is based upon a faulty
premise. Even if the County had raised such an allegation in a
timely filed motion for protective order, the allegation would have
missed its mark for the County has misinterpreted the rules upon
which the allegation is based. The County fails to recognize that
it is precisely because an answering party has no continuing duty
to voluntarily supplement answers to interrogatories, that
supplemental interrogatories are in order and are allowed under the
rules . Supplemental interrogatories provide the propounding party
4
with an effective and cost efficient means of keeping apprised of
any subsequent changes in interrogatory answers previously given by
a responding party. Third, the County' s argument confuses proper
case management and scheduled discovery practice with discovery
abuse .
5 . After further admitting that "any failure to respond is
being corrected, " the County then states that it "has no objection
to completing the second set of Interrogatories and serving answers
to the City within the next ten ( 10) days" . The County' s
gratuitous offer to serve partial answers is too little, too late
and comes too close to the date on which the City may need to serve
additional written discovery on the County in order to receive the
County's response to such discovery before the discovery completion
deadline established in the May 6th and May 14th orders .
Therefore, the City reserves the right to request, by separate
motion, an expedited response to the City' s Third Set of
Interrogatories and any other additional written discovery which
may be necessary in this case depending upon the substance of the
County's response to the City' s Second Set of Interrogatories .
6 . The remainder of the County' s response is a thinly-veiled
attempt to confuse the issue which is the subject of the City' s
motion. The response obfuscates rather than informs . The response
does this by implying, if not suggesting, that the hearing officer
somehow accept the County' s continuing unsuccessful , although
increasingly bizarre, negotiation tactics as partial justification
for the County' s failure to respond to discovery.
5
7 . The only issue to be decided with regard to the instant
motion concerns discovery, not settlement . The City' s Status
Report of April 19, 1993 chronicled in detail the City' s good faith
efforts to settle this case and the County' s "settlement by ambush"
tactics which have plagued settlement discussions ever since the
County requested that the City join in a continuance in late
January. Based on such documented tactics, the City' s status
report also requested the hearing officer to reset the case for
hearing, The City' s status report was accompanied by a Motion for
Entry of an Order Rescheduling Final Hearing and Directing Parties
to Conduct a Prehearing Conference and Enter into a Prehearing
Stipulation. The hearing officer granted the motion for a pre-
hearing order. The City continues to hope that the pre-hearing
order will have the salutary effect of imposing a disciplined
schedule on the parties to either settle the case or properly
prepare for final hearing. The City further believes that the
hearing officer has addressed the issue of settlement in the Order
to Provide Information of April 21, 1993 . That order expressly
provides that once rescheduled "no continuance will be granted to
give the parties an additional opportunity to resolve this dispute
by settlement. The final hearing will only be continued if the
parties actually sign a settlement agreement . "
8 . Rather than accept the hearing officer' s directive with
regard to settlement, the County' s response "dredges up" the issue
again, this time pointing to the County' s own "naivete, "
"confusion" and "misplaced documents" as an excuse for not
6
complying with discovery.
9 . At page 3 of the response the County states : "The County,
on June 17, 1993, provided the City Manager language of a proposed
settlement agreement which was thereafter approved by the County
Commission on June 24, 1993" . Although irrelevant to the discovery
issue which is the subject of the instant motion, the County' s
response goes on to refer to the City' s "40 days of intransigence"
with regard to the June 17th proposal and requests the hearing
officer to use his significant case management powers as provided
for in DOAH Rule 60Q-2 . 024 , F.A.C. The City does not understand
why the County would make such an extraordinary plea without giving
the hearing officer all of the facts . As a result, the City
reluctantly feels compelled to bring to the hearing officer' s
attention two glaring factual omissions from the County' s
irrelevant discussion about "settlement. " First, the County failed
to inform the hearing officer that on. June 28, 1993, only 11 days
after receiving the County' s June 17th proposal which was
misleadingly labeled by the County to be a "Joint City/County
Proposal" before being hurriedly presented to the County Commission
for their public consideration on June 24th, the City Attorney
corresponded with the County Attorney. The City Attorney informed
the County Attorney on June 28, 1993 that the action of the County
Commission in approving such a "draft as a final document" was
premature in light of important changes to the document which the
County Attorney knew were forthcoming from the City prior to the
time the County Attorney requested that the County Commission
7
publicly vote on the document. Second, the County failed to inform
the hearing officer that on July 21, 1993, the City submitted a
formal counter-proposal to the County' s draft of June 17 , 1993 . As
of the date of submission of this reply, the County has not
responded to the City' s proposal of July 21, 1993 . (Copies of the
City' s June 28, 1993 and July 21, 1993 correspondence are attached
to this reply as Exhibit "A" and Exhibit "B" , respectively, and are
incorporated by reference herein. )
10 . Although the City believes that it must compel discovery
in order to both properly prepare for hearing and comply with
directives contained in the orders of May 6th and May 14th, the
City reaffirms its desire to settle this case. However, unlike the
County's expressed statement to settle contained in its response
which is couched in careful terms and includes the caveat "settle
all issues possible" , the City desires to settle all issues with
the County. In the event that parties are unable to settle all the
issues in this case, the City reserves the right to a full and
complete evidentiary hearing and determination on those issues
specified in the City' s Petition, including whether Okeechobee
County' s Comprehensive Plan is in compliance with all of the
requirements of Florida' s Growth Management Act.
11 . The County has failed to make discovery. If the County
actually serves complete, sufficient and non-evasive answers to the
City on August 9 , 1993 as the County has suggested it may do, and
assuming the undersigned counsel receives those answers by mail on
August 11, 1993, the discovery will have been filed 177 days late.
More importantly, the September 14 , 1993 deadline for the
completion of discovery established by the hearing officer in his
orders of May 6th and May 14th will be only 34 days away. Should
the County substantially change its answers to the earlier asked
and answered interrogatories, the City' s right to conduct both
supplemental and original discovery in an orderly and cost
effective manner may have been prejudiced. Therefore, further
discovery motions may be necessary in order to protect the City' s
interests . Therefore, the County should be compelled to provide
the City, with all deliberate speed, with the complete, sufficient
and non-evasive answers that are due .
WHEREFORE, the Petitioner City of Okeechobee respectfully
requests that the Hearing Officer expedite the consideration of the
City' s Motion to Compel and for Sanctions for Failure to make
Discovery and enter an order compelling Intervenor Okeechobee
County to provide, with all due deliberate speed, complete,
sufficient and non-evasive answers , responsive to the date on which
the answers are served and accompanied by copies of any documents
referred to in said answers, to the City of Okeechobee's First and
Second Sets of Interrogatories, served on Okeechobee County on
November 30, 1992 and January 8, 1993, and awarding attorneys ' fees
and costs incurred in the preparation and prosecution of this
motion, as set forth with particularity in the City' s Expedited
Motion and above in this reply.
9
Respectfully submitted on this
4th day of August, 1993 by
11144.91/0.,, k,i)c
Michael Wm. Morell
Attorney at Law
310 West College Avenue
Tallahassee, FL 32301-1406
( 904 )425-8300
and
John R. Cook
City Attorney
City of Okeechobee
202 N.W. 5th Avenue
Okeechobee, FL 34972
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that an original and one copy of the
foregoing City of Okeechobee ' s Reply to Okeechobee County' s
Response to the City ' s Expedited Motion to Compel and For Sanctions
for Failure to Make Discovery has been filed this 4th day of
August, 1993 with the Office of the Clerk, Division of
Administrative Hearings, The DeSoto Building, 1230 Apalachee
Parkway, Tallahassee, FL 32399-1550 and one copy has been furnished
by hand delivery on this 4th day of August, 1993 to
John Cassels
Laura Ann McCall
Okeechobee County Attorney
Law Offices of Cassels and McCall
400 N.W. Second Street
P.O. Box 968
Okeechobee, FL 34973
Karen Brodeen
Assistant General Counsel
Department of Community Affairs
2740 Centerview Drive
Tallahassee, FL 32399-2100
Michael Wm. More 1
10
el ea` '` , City of Okeechobee
"__ -
66 $.E. Third Avenue • Okeechobee, Florida 34974-2932 . 813/763. 373
June 28 , 1993
John Cassels
County Attorney
400 N. J. 2nd St .
Okeechobee, Florida 34972
re; City/County comprehensive plan litigation
Dear John:
•
Pursuant to our conversation last Friday, it appears that you
presented the last draft of our proposed settlement of this
litigation to the Board of County Commissioners on Thursday, June
24 , who approved settlement language as submitted. Further, you
indicated you would forward on a signed copy of the settlement to
me for- presentation to the City Council .
While we appreciate your enthusiastic endorsement of a
complete settlement of these issues , you are aware that I notified
you on Wednesday, June 23 that myself and Mike Morrell were
reviewing the last changes you inserted into the document , which Y
just received a couple of days prior. We intend to make some minor,
yet important , changes to the language, so the action of the BOCC
. in approving .the draft as a final document is premature at this
time
;. •
Our goal to settle this entire litigation remains foremost ,
and once we both agree on the final language, we will ask that you
present. it to the BOCC for approval .
. K,indestRegards
•
ahn R. Cook
JAC/ja -
so; John Drago
City Council
Mike Morrell
Exhibit A
•
. • .
LAW OFFICES
JOHN R. COOK
r
217 row 3111 ^VF.NLt
■; btgliCAOMI.FLOR t3A 1072
T1LBTHON!(613)404291
FAX(113)467-4141
July 21 , 1993
•
John Cassels
•
,
400 N .H. 2nd St .
Okeechobee, Florida 34972
' Re: City/County comprehensive plan litigation
rear John:
Attached please find our response to the proposed language
changes discussed at Qur meeting between you and I , and Bill Royce .
I am still puzzled as to why you would place 4 draft before the
EOCC for approval ; we have a planner looking at the language as you
do with Bill , so I am not going to place my stamp of approval on
any language without first discussing it with our planner . •
I see that this topic is up for discussion at tomorrow ' s Board
meeting, From our prospective, you might inform the Commissioners
that (1) the language in this latest draft represents a position
that 1 feel I could in good conscience recommend to my Board; and
( 2 ) we are drawing near to discovery deadlines with the hearing
officer, and if this draft is not acceptable , we have got keep
within ' our timetables in order to prepare for hearing , if
necessary .
It appears we are down to semantics to a certain degree , but
it a joint meeting between the Boards would assist us in resolving
these differences , we-are available . I believe the evening of July
27 wail mentioned as an open date.
Kindel Regards
■ J
John R. Cook
JRC/rh
,
xr : John Drago .
Mike Morrell
Exhibit B