HomeMy WebLinkAboutDocumentation_Regular_Tab 9B_11/12/1992 •
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October 15, 1992 \‘
01 I p
To Council , Tom Bradford, Tom Hall and Skip Randolph
From Bill i3urckart
I received a phone call today from one of the Jupiter
Council Members . The reason for the call was to advise us
of the pending litigation Jupiter is about to. enter into
with Mr . Mickley.
It seems the manner in which he filled suit against Jupiter,
a class action suit to set aside the 25% Water Surcharge for
Jupiter ' s customers in unincorporated Palm Beach County,
could have an adverse effect upon our agreement wherein
Jupiter is not passing this surcharge on to Tequesta .
The theory here is that a Judge might see our agreement as
discriminatory and include Tequesta and Juno teach into the
surcharge .
A copy of the litigation is attached for your
interpretation .
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In as much as this is a • real issue we must consider I
suggest 'we place this Issue on the next agenda and state our
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position . This defense also involves a cost sharing so
there are monetary considerations to either position.
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(.....CARE C� FAMILY EYECARE OF JUPITER
4,7 IVY k.,54 Dr. M. Richard (Scott) Hearing,O.D.
liv• fli
Jupiter Medical Pork
rt 1000 3. Old Dixie Highway
Sufte 204
O LI U Jupiter,Florida 33458
t 0 (407) 744.2811
°COTT 00. Fox(407) 744-2498 011171
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�o�-rowRiv`� INFORMATION� F
yUQ�1ER
/D -i." - 9� - to lar.�
c•1 1 k 1992 !I
October 7, 1992 `'D '� 4101
100 e
Richard Dent, Executive Director
E 0
Loxahatchee River Environmental Control District
2500 Jupiter Park Drive
Jupiter, Florida 33458-8964
RE: Town of Jupiter Water Rate
Dear Rick,
I am requesting that the 'Loxahatchee River District exercise
its authority, as it relates to water service, in reducing
the twenty-five percent surcharge for water-users who live
outside the city limits of Jupiter. This is simply a tactic
to balance the Jupiter budget, and has absolutely nothing to
do with the cost of supplying water to those customers who
live outside the city limits. Although I live outside the
Town limits, I am .a user of the Jupiter Water System at my
home and also at my office which is within the City limits
of Jupiter °and I am paying real estate taxes and tangible
property taxes to the Town of Jupiter. I support Mr.
Gentile ' s and Mr. Ellis' actions and would ask that the
ENCON Board, through its attorney, Curtis Schenkman, use its
leverage to reverse the Town' s position on this surcharge .
It is my understanding that both the Village of Tequesta and
Juno Beach, although they are outside the City limits of
Jupiter, are not paying this surcharge . This is extremely
unequitable . -
Rick , I thank you for your concern in this matter and am
hoping the District will exercise its authority to remove
th s injustice .
Si erely, e
V\714 (Cipo").
Dr. !chard (Scott) Hearing
HRH
cc: David Brown, Water Director $
Tnwn of .Tuniter
OCT 12 '92 11129 PSP05T, m*fig '---� ---
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IN THE CIRCUIT COURT FOR THE FIFTEENTH JUDICIAL CIRCUIT
IN AND FOR PALM BEACH COUNTY, FLORIDA
gTEYEN A. NZICK.I,EY, n behalf
o CASE NO,: C LA 2- I bt4 I S I.:
of himself and all others
similarly situated, CLASS REPRESENTATION
Plaintiff,
vs. o? t
TOWN OF JUPITER, •
1^ 00'y
Defendant. C,G.rei ,►o.q444417$90
odiagsrEMENTATIMAL
,EGATlONG r rit4tit
The Plaintiff, STEYEN A MICKLEY, sues the Defendant, TOWN OF
JUPITER, and alleges:
1. This is an action for damages which exceeds Fifteen Thousand Dollars
(016,000.00),
2. This action'is brought by Plaintiff, STEVEN A. M1CICLE, as a class
action, on his own behalf and on behalf of all others similarly situated who live
outside the Town of Jupiter in the unincorporated areas of Palm Beach County and
who are served by the water utility system.
3. The Plaintiff,STEVEN A.MICKLEY,hereinafter ItifICICELY,is a president
of Palm Beach County, Florida and is otherwise sul juris.
4. The Defendant, TOWN OF JUPITER, hereinafter TOWN. a municipal
corporation in Palm Beach County, Florida
6.\ The TOWN operates and maintains a water utility system serving
consumers within the TOWlN1'8 boundaries and consumers who live outside the
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TOWN's boundaries both in incorporated and unincorporated geographical areas.
Some of the consumers 11Ve in Martin County.
6, MICKLEY is a property owner who lives outside the Town of Jupiter,but
in an unincorporated are Qf Palm Beach County, and MICKLEY le served by the water
utility system.
7, The TOWN enacted ordinance number 28-92, effective October 1, 1.992.
A copy of the ordinance is attached as Exhibit 1.
8. MICKLEY is affected by the ordinance.
9. This action is brought by MICKLEY as a class action on his own behalf
and on behalf of all others similarly situated who live outside the Town of Jupiter in
tie unincorporated areas of Palm Beach County, and who are supplied water by the
Jupiter utility system.
10. The exact number of members of the class as identified and described in
this complaint is not known. It is estimated that there are not less then 4,000
members. The class is so numerous that the joinder of all individual members of this
class in this class action is impractical,
11. The claims of the representative party raise questions of law or fact
common to the questions of law or fact raised by the claim of each member of the
class, namely, whether or not the TOWN is permitted by law to levy a surcharge of
26% for water supplied to members of the class.
12. The claim of the representative party is typical of the claims of all
members of the class, in that, all members of the class are injured in exactly the same
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OCT 12 '92 i1:29 PBPOST, **** 0fl®@800e .
pay that is, they will all be forced top Y 26% more for water under the ordinance
which is both illegal and unconstitutional.
13. M1CKL Y, as a representative party, can fairly and adequately protect
and rep resent the interest of each member of the class since the Plaintiff end the
members of the class have no conflict of interest, they have a mutual interest in
seeking eekin damages against the Defendant, MICKLZY has enough financial re80urces to
maintain this action, and MICK= is represented by competent and experienced
counsel who has thus fax vigorously prosecuted this action and who will continue to
prosecute this action to a successful conclusion.
14. This action is properly maintainable as a class action pursuant to Rule
i,220(b)(3), in that the questions of law or fact to the claim of each member of the
class predominates over any question of law or fact effecting only individual members
of the class, and class representation is superior to other available methods for the
fair and efficient adjudication of the controversy. It would make no sense for the
Court to entertain 4,000 individual law suits all concerning the same issues.
15, The particular facts and circumstances that support the conclusion
required of the Court in determining that the action may be maintained as a class
action pursuant to Rule I,220(b)(3)(r)are;
a, Ordinance 26.92 has an equal effect in terms of percentage rate increase
on every member of the class, but not an equal effect on every consumer, and;
b. Whether or not Ordinance 28-92 is a viable exercise of the Towns police
power or is in fact a violation of the equal protection clause are common questions of
law or fact to be determined by the Court.
c. Whether or not the TOWN has the power under Chapter 180.191 to raise
water rates in the manner described In the ordinance.
CAUSES OF ACTION
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16, MiCKLEY readopts and reallegee paragraphs 1 through 14 as if more
fully set forth herein,
17. This action is brought specifically pursuant to Chapter 180.191 of the
Florida Statutes.
18. Ordinance 26-92 is an attempt by the TOWN to raise water/rates to
residents in unincorporated areas of Palm Beach County by 26%.
19, Section 180,19,1 specifically does not apply to the Town of Jupiter because
they municipally own water utilities supplies water to Martin County and the Statute
specifically provides:
(3), ''This section shall apply to municipally owned water and sewer
utilities within the confines of a single county."
20, The Plaintiff has hired the law firm of DAMSEL & GELSTON, P.A. and
have agreed to pay them a reasonable fee in this matter.
21, The statute provides in (6):
In any action commenced pursuant to this section, the Court in its
discretion may allow the prevailing party treble damages, and, in
addition, a reasonable attorney fee as part of the cost."
WHEREFORE based upon the foregoing,the Plaintiff demands actual damages,
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trebled by the Court, and in addition, a reasonable attorneys' fee and costs,
VIOLATION OF CIVIL RIGHTS
22. MICKLEY readopts and realleges paragraphs 1 through 14 as if more
Dilly set forth herein.
23, This action is brought pursuant to Title 42 U.B.C. 1983.
24.
The TOWN has divided the persons it supplies water into five categories:
a, Residents of the town;
b. Residents of the Village of'Y'equeta;
c. Residents of Town of Juno Beach;
d. Residents who live in unincorporated areas of Palm Beach County;
e. Residents who live in unincorporated areas of Martin County,
26, One the residents of the unincorporated areas of Palm Beach County
have been singled out for the 25% rate hike.
26. The drawing of such a distinction is arbitrary and capricious, and without
logic. It unfairly penalizes residents of the unincorporated areas of Palm Beach
County to the advantage of all the other groups,
27. It is a violation of the equal protection clause of the 5th and 14th
Amendments of the Constitution of the United States of America.
WHEREFORE based upon the foregoing, Plaintiff demands damages on behalf
of the class, and attorneys' fee and costs in accordance with 42 U.S.C. 1988.
DECLARATORY JUDGMENT
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28, This is an action for declaratory judgment, and the Court has jurisdiction
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under Florida Statute 88.011,
29, The Plaintiff asks the Court to declare that Ordinance 26.92, attached
hereto as Exhibit 1. is null and void because;
a, It is a violation of the equal protection clauses of both the 6th and
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14th Amendments of the United States Constitution, that is, it is unconstitutional,
and;
b. There Is no statutory basis for the raising of water rates by 26%,
in that, Chapter 180,191, Florida Statute, the rationale ueed by the TOWN in enacted
the rates clearly does not apply to the municipality owned water facility in thie case.
30. This Court has specific power to construe the validity of Ordinance 28-92
pursuant to Chapter 86.021 of the Florida Statutes,
WU1EREFORE based upon the foregoing, the Plaintiff moves this Honorable
Court for an order declaring Chapter 26.92 is an unconstitutional exercise of the police
power of the TOWN OF JUPITER or iu the alternative the TOWN OF JUPITER hod
no basis in law for the enactment of the ordinance and therefore, the ordinance is null
and void,
Dated thist. day of' October, 1992,
DAMSEL & GELSTON, P,A,
416 6th Street
P,O, Box 4507
West Palm Beach, FL 33402-4507
407/832.8465
FAX 407 832.6773
RE H,
FLORIDA BAR NO. 173606
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