Gate Station Appeals.pdfEAKIN
& SN EED
JRNEYS AT LAW
599 ATLANTIC BOULEVARD, SUITE 6
ATLANTIC BEACH, FL 32233
April 12, 2016
Via US Mail and Email:
Brenna M. Durden
245 Riverside Ave., Suite 150
Jacksonville, FL 32202
bdurden( 11w-law.com
VICIEEVM
.11 APR 1 3 2016
BY:
Re: City of Atlantic Beach, Gate Appeal
My Client: Barry Adeeb/Atlantic Beach Diner, Inc.
Dear Ms. Durden:
PAUL M. EAKIN, P.A.
JEFFREY J. SNEED, P.A.*
BANDA DELANE NADEAU
*BOARD CERTIPILD
CIVIL TRIAL LAWYER
TELEPHONE: 904-247-6565
TELECOPY: 904-247-6535
Received
APR 1 9 2016
Office of City Clerk
I am writing you today in response to your request for my client to identify the error
which is the basis for; our appeal _of the issuance of the Preliminary Site Development
Permit. The elements of error- are as follows:
1. The City failed to properly follow the procedures and requirements of its
ordinances in the review and approval of the permit;
2. The Permit was not issued in the manner required by the city ordinances;
3. The City improperly classified the proposed use of the applicant for permitting
purposes;
4. The City knowingly relied upon inaccurate information relating to Beaches
Diner in processing the permit, and provided incorrect information to the
appellant concerning the method used for calculating required parking, so as to
limit its response;
5. The: permit as approved will create a non -conforming use under current city
ordinance section. 24-161, and will place an offsite parking burden on the
surrounding neighborhood in violation of city ordinances;
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EAKIN
& SNEED
ATTORNEYS NT,, LAW
599ATANTICBOUL IAP..D,SUITE6
ATLANTIC BEACH, P1.32233
Received
APR 1 9 2016
Office of City Clerk
April 15, 2016
Brenna M. Durden, Esquire
245 Riverside Ave., Suite 150
Jacksonville, FL 32202
bdurden@llw-law.com
Re: City of Atlantic Beach, Gate Appeal
My Client: Paul M. Eakin
Dear Ms. Durden:
PAUL M. EAK1N,
JEFFREY J. SNEED, P.A,*
BANDA DELANE NADEAU
*BOAR D -CERTIFIED
CIVIL TRIAL LAWYER
TELEPHONE: 904-247-6565
TELECOPY: 904-247-6535
1 am writing you today in response to your request for my
client to identify the errors which are the bases for our appeal
of the City's issuance of the Preliminary Site Development Permit
to Gate Petroleum Company. The assignments of error are as
follows:
1. The City's permit was issued by officials'without
authority to do so.
2.. The City misclassified Gate's project under the City's
Zoning Code, thus allowing a more intensive use than permitted
under the Code.
3. The City did not follow its own Code in reviewing and
issuing the preliminary development permit at issue.
4. The City failed to properly interpret the relevant
portions of its own Code relative to the review and approval of
the application of the applicant.
5. Any error alleged by any other appellant.
6. The City failed in its due diligence in accepting and
relying on the information supplied by the applicant in response
to the City's inquiries regarding "minor automotive service".
Brenna M. Durden, Esquire
April 15, 2016
Page 3
This document must be removed from the record immediately and all
copies previously distributed recalled. Likewise, the Commission
should be advised that the facts and opinions expressed therein
were not considered by the City in making its decision.
Sincer
Pau M. Eakin, Esq.
cc: Jane West Law, 6277 A1A South, Suite 101, St. Augustine, FL
32080 (lane@ianewestlaw.com)
Theodore R. Hainline, Jr., Esq., 1301 Riverplace Blvd.,
Suite 1500, Jacksonville, FL 32207 (thainline@rtlaw.com)
EAKIN
& SNEED
ATTORNEYS AT LAW
599 ATLANTIC BOULEVARD, SUITE 6
ATLANTIC BEACH, FL 32233
HAND DELIVERED
f„r�.; Received
• sct1
hYC'' , i - :- 3,e MAR MAR 2 3 2016
L
, Office of City Clerk
PAUL M. EAKIN, P.A.
JEFFREY J. SNEED, P.A.*
BANDA DELANE NADEAU
BOARD CERTIFIED
CIVIL TRIAL LAWYER
_ TELEPHONE: 904-247-6565
TELECOPY: 904-247-6535
March 23, 2016
The Honorable Donna L. Bartle
Clerk of City of .Atlantic Beach
City of Atlantic Beach
800 Seminole Road
Atlantic Beach, Florida 32233
Re: Public Records Request
Dear Ms. Bartle:
On February 16, 2016 I filed for an appeal under 24-49, Code of
Ordinances on behalf of myself and also an appeal on behalf of my
client Barry Adeeb and the Beach Diner, Inc. In my notice of appeal
I requested that.I be advised when the record had been prepared by
the Community Development Director and sent to the City Commission
and that I also be provided with a copy of same. It has been 36
days since that appeal was filed and to my knowledge I have not
received a copy of the record prepared by the Community Development
Director. Would you be kind enough to check with him and see what
the status of the preparation of the record is at the present time.
My hope was that the record would have been prepared by now so that
I could decide definitively what issues .there were for _appeal to
the City Commission and start preparing my presentation in terms of
evidence and witnesses. Your help in this regard is greatly
appreciated. I look forward to your response.
Sin - -ly yours,
11
Pau M. Eakin
PME/tjj
cc: Barry Adeeb
‘,/,._
March 4, 2016
The Honorable Donna L. Bartle
Clerk of City Atlantic Beach
City of Atlantic Beach
City Hall
800 Seminole Road
Atlantic Beach, Florida 32233
Received
MAR - 4 2016
Office of City Clerk
e West, Esq.
COU
via electronic mail and
hand delivery
Re: Notice of Appeal of Administrative Decision
15-CVPR-2411 Gate Civil Review Approval issued 2/9/2016
Dear Clerk Bartle:
This firm represents Atlantic Beach Cares, LLC and Glenn Shuck with respect
to their joint appeal of the City of Atlantic Beach's Civil Review Approval (JOB ID #:
15-CVPR-2411) of the Prosser, Inc. application submitted on behalf of Gate
Petroleum Company for the development of an Automobile Service Station located
at 535 and 501 Atlantic Blvd.
This appeal is being brought pursuant to Sec. 24-49, Code of Ordinances of
the City of Atlantic Beach. My clients are both adversely affected persons in
accordance with Sec. 24-49. The LLC's members are both local residents that are in
close proximity to the proposed gas station. Glenn Shuck owns real property
located at 104 Sylvan Drive, Atlantic Beach, a mere 2 parcels away from the
proposed gas station.
Both clients will be adversely affected because the proposed development
will increase traffic congestion, pose increased threats to citizen safety, significantly
contribute to noise and light pollution, create a prominent source of visual and
cultural blight, pose considerable damage to the character of the community,
negatively impact existing commercial uses that are a cornerstone to the fabric of
Atlantic Beach, contravene the City of Atlantic Beach's Mission and overall
negatively impact property values. As such, the City's approval of the gas station
violates Policies A.1.3 and A.1.11.1 of the Atlantic Beach Charter; Sections 24-2(a),
24-171 and 24-111(b) of the City's Land Development Regulations.
Pursuant to Sec. 24-49, my clients hereby request that the merits of this
appeal be heard at a public hearing within a reasonable period of time with proper
public notice as well as due notice to interested parties. Upon receipt of this notice
of appeal, please transmit the record upon which the approval was based to the city
commission together with a copy of this notice. In addition, please provide me with
a copy of whatever record you transmit to the City Commission.
As a procedural matter, Sec. 24-49 of your Code contains a flawed and/or
ambiguous term. Your Code's appellate process for review of administrative
decisions identifies an entity that currently does not formally exist at the City. The
role of "Community Development Director" is not a position that is currently
occupied by anyone at the City. For purposes of this appeal, I will assume that
Jeremy Hubsch, who holds the title of `Building and Zoning Director" is one in the
same as the "Community Development Director" identified in your Code. If for
some reason, this assumption is misplaced, please provide written clarification.
Enclosed herein please find a check in the amount of $50.00 as the filing fee
for this appeal. Thank you.
Respectfully,
Juiic '4ti'cot
cc: Jeremy Hubsch, Building and Zoning Director
7 South, St. A a. as ;x 6 nor'
2
Date prepared:
Deposit Date:
Prepared by:
Payment Cash
Type Receipt
Code Number
City of Atlantic Beach
Offsite Payment Form
03/04/16
03/04/16
Donna Bartle
Description
GL Account or
Accounts Receivable Deposit
Number Amount
UN Appeal from Jane West Law dated 3-4-16 001-0000-329.10-03 50.00
Total Deposit 50.00
Cash
ACH
Checks
Credit/Debit Cards
Money Orders
Total 50.00
taper: ATLPL AE T ,=pt` +JC Drawer: 1
Date: 3r 4;16 00 z e ,=iht no: 37803
Revised: 9/06/07 UN NON-SPECIFIC
O:\City Clerk\internal use\Forms\Offsite Cash Receipts\[Master Copy NewOffsite Payment Form for Appeal 3-4-16.xlsx]Form 1.00 *=0.001
00100003291003
APPEAL JANE WV T LAIN 3916
Ek CHECK E 1 $50 00
Trans date:
Time: i:_R: 5
EAKIN
& SNEED
ATTORNEYS AT LA\V
599 ATLANTIC BOULEVARD, SUITE 6
ATLANTIC BEACH, FL 32233
February 16, 2016
The Honorable Donna L. Bartle,
Clerk of City of Atlantic Beach
City of Atlantic Beach, Florida
City Hall
800 Seminole Road
Atlantic Beach, Florida 32233
PAUL M. EAKIN, P.A.
JEFFREY J. SNEED, P.A.*
BANDA DELANE NADEAU
*BOARD CERTIFIED
CIVIL TRIAL LAWYER
TELEPHONE: 904-247-6565
TELECOPY: 904-247-6535
Received
FEB 1 6 2016
Office of City Clerk
Re: Appeal of Administrative Decision Made 1By The Community
Development Director To The City Commission Of Atlantic
Beach
Dear Ms. Bartle:
Pursuant to Section 24-49, Code Of Ordinances Of The City Of
Atlantic Beach, Florida (Code)appeal is hereby made on behalf of
myself as the property owner located at 599 Atlantic Boulevard,
Atlantic Beach, Florida and on behalf of my client, Barry L. Adeeb
d/b/a The Beach Diner and Beach Diner, Inc. located at 501 Atlantic
Boulevard, Atlantic Beach, Florida of that certain decision of
Jeremy Hubsch concerning the granting of the Preliminary Site
Development Permit for Gate Petroleum Company's project located at
501, 535 and 541 Atlantic Boulevard, Atlantic Beach, Florida.
T_ am an adversely affected person since I am an adjacent landowner
to the proposed project and consider it to be adverse to my best
interests as such. My client is a lessee of part of the property
comprising the development and its interest are adverse to that of
the permittee since my client believes that the proposed
development would adversely affect its business.
Since Section 24-49, Code does not indicate the procedures involved
at the public hearing contemplated under said Section, would you be
kind enough to forward to me the procedures to be followed by me
from this point forward.
Please advise the necessary directors and staff of The City Of
Atlantic Beach of this appeal.since pursuant to Section 24-49(c),
Code, this appeal "...shall stay all work on the premises and all
proceedings in furtherance of the action appealed..." The stay of
all proceedings would necessarily include your staff further
processing the permittee's plans and application towards final
The Honorable Donna L. Bartle,
Clerk of City of Atlantic Beach
City of Atlantic Beach, Florida
February 16, 2016
Page 2
permit approval.
Please be sure that The Community Development Director is
immediately notified of the filing of this appeal so that he
transmits to the City Commission all of the documents, plans or
other materials constituting the record upon which his
decision/action was derived. I request a copy of what is
transmitted to the City Commission as the record in this matter at
the time it is transmitted to the Commission. I will pay for any
costs associated therewith if proper under the Code.
Enclosed herewith please find my check in the amount of $100.00 as
the filing fee for this appeal. If there are any other costs
associated with the taking of this appeal, please advise me
accordingly.
Since
Pau M. Eakin
PM r /tjj
cc: Barry L. Adeeb
EAKIN
& SNEED
ATTORNEYS AT LAW
599 ATLANTIC BOULEVARD, SUITE 6
ATLANTIC BEACH, EL 32233
February 19, 2016
The Honorable Donna L. Bartle,
Clerk of City of Atlantic Beach
City of Atlantic Beach, Florida
City Hall
800 Seminole Road
Atlantic Beach, Florida 32233
PAUL M. EAKIN, P.A.
JEFFREY J. SNEED. P.A."
BANDA DELANE NADEAU
*BOARD CERTIFIED
CIVIL TRIAL LAWYER
TELEPHONE: 904-247-6565
TELECOPY: 904-247-6535
Received
FEB 1 9 2016
Office of City Clerk
Re: Public Hearing On Appeal Of Gate Preliminary Development
Site Plan Permit
Dear Ms. Bartle:
I thought it prudent to bring to your attention Section 286.011,
Florida Statutes at this time.
Specifically, subsection (1) thereof mandates that all meetings of
any Commission of any municipal corporation including meetings with
or attended by any person elected to such commission at which
official acts are to be taken are declared to be public meetings
open to the public at all times and that no resolution, rule or
formal action shall be considered binding except as taken or made
at such meeting.
That statute goes on to state at subsection (6) that "all persons
subject to subsection (1) are prohibited from holding meetings at
any facility or location ... which operates in such a manner as to
unreasonably restrict public access to such a facility."
1 have been advised by my client that he anticipates a crowd of
somewhere between 500 and 1,000 people attending the appeal hearing
before the Commission of the above stated permit.. Given this
fact, I consider the facilities located at City Hall to be
unreasonably restrictive to public access and therefore in
violation of the statute if the appeal hearing is held at that
facility.
You should note that under subsection (3) that any public officer
who violates any provisions of Section 286.011, Florida Statutes is
guilty of a non -criminal infraction punishable by fine not
exceeding $500.00 and that any person who is a member of a board or
a commission of a municipal corporation who knowingly violates the
provisions of the same section by attending a meeting not held in
The Honorable Donna L. Bartle,
Clerk of City of Atlantic Beach
City of Atlantic Beach, Florida
February 19, 2016
Page 2
accordance with the provisions of this section is guilty of a
misdemeanor of the second degree. I will rely on you as the Clerk
of the City to transmit this information to the proper staff at the
City Of Atlantic Beach and certainly to the members of the City
Commission of Atlantic Beach.
S
urs,
Paul M. Eakin
PME/tjj
Date prepared:
Deposit Date:
Prepared by:
Payment Cash
Type Receipt
Code Number
City of Atlantic Beach
Offsite Payment Form
02/19/16
02/19/16
Donna Bartle
Description
GL Account or
Accounts Receivable Deposit
Number Amount
UN Appeal from Eakin & Sneed dated 2-16-16 001-0000-329.10-03 50.00
Total Deposit 50.00
Cash
ACH
Checks
Credit/Debit Cards
Money Orders
Total 50.00
Revised: 9/06/07 D{at e
O:\City Clerk\internal use\Forms\Offsite Cash Receipts\[Master Copy NewOffsite Payment Form for Appeal 2-1i;16.xlsx]Form
00100003.
APPEAL EFjL E I
TransCV ETIErk
oat
1.00
I l l ? i mme
Date prepared:
Deposit Date:
Prepared by:
Payment Cash
Type Receipt
Code Number
City of Atlantic Beach
Offsite Payment Form
03/15/16
03/15/16
Donna Bartle
Description
GL Account or
Accounts Receivable Deposit
Number Amount
UN Appeal from Eakin & Sneed dated 2-16-16 001-0000-329.10-03 50.00
- 2am
R.
472 zh.I,Lke
Revised: 9/06/07
Oper: c Ii Lb t `pe: or Drawer: 1
113te: -0 ReCe. nn: 404b8
O:\City Clerk\internal use\Forms\Offsite Cash Receipts\[Master Copy NewOffsite Payment Form for Appeal 2-16r'16 #2.xlsx]For tN—=5pE0; i- T5
1,00 $50 (_)1J
001500l
EAUMFAU 02-15-10
CK S3F"3' _
I r:ai e date: -/ 15/1` FF.: 12:02:18
LLW
LEWIS
LONGMAN
WALKER
April 22, 2016
VIA ELECTRONIC MAIL
Jane West, Esq.
6277 A1A S., Suite 101
St. Augustine, FL 32080
j ane0j anewestl aw. c om
Jeff Sneed, Esq.
Paul Eakin, Esq.
eakinsneed@ comcast.net
599 Atlantic Blvd., Suite 6
Atlantic Beach, FL 32233
effsneed@comcast.net
comcast.net
j effreysneedpa@comcast.net
Re: Gate Petroleum Appeal Hearing
Dear All,
IAttorneys at Law
Ilw-law. com
Reply to: Jacksonville
bdurden@llw-law.com
T. R. Hainline, Esq.
Emily G. Pierce, Esq.
Rogers Towers, P.A.
1301 Riverplace Blvd., Suite 1500
Jacksonville, FL 32207
thainline@rtlaw.com
epierce@rtlaw.com
rtlaw.com
First, let me thank each of you for your time in speaking with me over the last several
weeks in regards to various issues and procedural matters related to the appeals of the City's
approval of the site development plan for the Gate Petroleum project at 501-535 Atlantic
Boulevard. I appreciate your consideration of the matters we have discussed.
Second, this letter shall set forth the general guidelines I believe are appropriate for the
hearing. Certainly, while they are not set in stone, they will form the basis for the general
structure of the appeal hearing.
1. The public hearing is set for Thursday, May 12, 2016, beginning at 10:00 a.m.
and may run until 11:00 p.m. OR LATER, at the discretion of the City Commission. Should the
Commission choose, the hearing may be continued to 10:00 a.m. on Friday, May 13, 2016.
2. Based on your concerns regarding the City Hall venue for the hearing, please be
advised that the hearing will take place at the Community Presbyterian Church Fellowship Hall,
150 Sherry Drive, Atlantic Beach, Florida. The Fellowship Hall is available beginning at 10:00
a.m. on Thursday and from 10:00 a.m. to 2:00 p.m. on Friday, May 13, if needed.
JACKSONVILLE
245 Riverside Ave., Suite 150
Jacksonville, Florida 32202
T: 904.353.6410
F: 904.353.7619
00650225-1
TALLAHASSEE
315 South Calhoun St., Suite 830
Tallahassee, Florida 32301
T: 850.222.5702
F: 850.224,9242
TAMPA BAY
101 Riverfront Blvd., Suite 620
Bradenton, Florida 34205
T: 941.708.4040
F: 941.708.4024
See Things Differently
WEST PALM BEACH
515 North Flagler Dr., Suite 1500
West Palm Beach, Florida 33401
T: 561.640.0820
F: 561.640.8202
April 22, 2016
Page 2
3. The order of presentation will follow the outline attached hereto. Please note that
public comment will be allowed beginning at 10:15 a.m. and will conclude at 12:15 p.m. on
Thursday, May 12, 2016. Please also note that I have increased the timeframes for the
appellants' cross-examination of City and Applicant's witnesses based on several of your
comments.
4. The issue before the Commission is whether an error was made in the approval of
the Gate site development plan, 15 CVPR-2411. Thus, testimony should focus on the following
sections of the Land Development Code that are relevant and applicable to site plan review:
§ 24-17 — Definitions
§ 24-66 — Stormwater
§ 24-67 — Development Review
§ 24-82 — General Requirements
§ 24-84 — Double Frontage Lots
§ 24-109 — CPO Zoning District
§ 24-110 — CL Zoning District
§ 24-111 — CG Zoning District
§ 24-156 — Height Limits
§ 24-160 — Dumpsters
§ 24-161 — Parking
§ 24-165 — Service Stations
§ 24-167 — Buffers
§ 24-171— Commercial Corridor Standards
§ 24-176 and 177 — Landscaping
§ 24-276 — Concurrency
5. As a quasi-judicial hearing, the following apply:
a. Procedural due process is required;
b. The Commission must adhere to the essential requirements of the law; and
c. The Commission's decision must be based on competent substantial
evidence.
6. Pursuant to specific requests:
a. The document "Service Station/Gas Station UBEX History," dated March
29, 2016, Item #26 in the documents provided to you on March 31, 2016,
will be removed from the record.
00650225-I
April 22, 2016
Page 3
b. Documentation relied upon by Steve Lindorff in the preparation of his
report dated January 28, 2016, not already included in the set of
documents provided to you on March 31, 2016, will be provided to you
under separate cover via email and will be made a part of the record for
the hearing.
7. Please provide a list of all witnesses you expect to call at the hearing with a
general description of the testimony to be given by each witness no later than Friday, May 6,
2016, to me and to each addressee above. Email delivery is acceptable.
8. In order to allow the hearing to proceed as smoothly as possible, please provide a
set of all documents with a numbered index you expect to submit into the record during the
hearing to me and to each addressee no later than Monday, May 9, 2016. Email delivery is
acceptable.
9. As you know, a court reporter is needed. I propose we select a mutually
acceptable reporter and split the cost five ways. Please let me know if you agree.
There inay be additional subjects or matters to confer on prior to May 12. Please do not
hesitate to contact me with any questions or comments. Thank you again for your anticipated
professionalism as we prepare for this hearing.
Sincerely,
Brenna M. Durden
BMD/dr
Enclosure
c: Elected Officials w/encl. (via email)
Nelson Van Liere w/encl. (via email)
Jeremy Hubsch w/encl. (via email)
Donna Bartle w/encl. (via email)
Wayne E. Flowers w/encl.
00650225-1
4/22/16
ORDER OF PRESENTATION
10:00 am Call to Order/Pledge & Invocation - Open Public Hearing / City
Attorney Procedural Reminders / Ex Parte Disclosures
10:15 am Public Comment - no more than 2 hours - time/speaker
dependent on total number of cards, but in no case more than
3 minutes each
12:15 pm Public Comment period ends / Break
12:25 pm Reconvene and court reporter swears in all witnesses
12:30 pm* City Presentation - up to 45 minutes total for direct/rebuttal;
rebuttal - now/end of hearing if time remaining
1:00 pm* Lunch break - 30 minutes
1:30 pm* Applicant's Presentation - up to 2 hours total for direct and
rebuttal; rebuttal - now/end of hearing, if time remaining
3:00 pm* Cross Examination by Eakin/Sneed/West of City and
Applicant's witnesses - up to 2 hours total (limited to 40
minutes each unless time is shared by agreement amongst
Appellants)
4:45 pm* Break
5:00 pm* Eakin Presentation - up to 1 hour total for direct/ rebuttal;
rebuttal - now/end of hearing, if time remaining
5:45 pm* Sneed Presentation - up to 1 hour total for direct/ rebuttal;
rebuttal - now/end of hearing, if time remaining
6:30 pm* West Presentation - up to 1 hour total for direct/ rebuttal;
rebuttal - now/end of hearing, if time remaining
7:15 pm* Cross Examination of Eakin/Sneed/West witnesses by
Applicant and City - up to 1 hour (limited to 30 minutes each
unless shared)
00643084-1 ■
4/22/16
7:45 pm* Break
8:00 pm* Rebuttal - Rebuttal and Closing Statements - use of any
reserved time for rebuttal and up to 3 additional minutes for
closing statements in this order: Eakin, Sneed, West, City
and Applicant.
8:45 pm* Commission Questions/Deliberations and Vote - Possible
motions; all must be based on competent substantial
evidence:
• Motion to find that the Director did not commit an error
because site plan meets applicable Code requirements,
confirming the approval of the site plan application.
- or -
• Motion to find that the Director committed an error
because site plan does not meet applicable Code
requirement(s) (to be specified), reversing the approval of
the site plan application.
- or -
• In the event the Applicant offers a modification, motion
to modify the approval of the site plan application and revise
in manner specified.
*Time of day is estimate only.
Based on the lateness of the day, the Commission may, in its discretion,
choose to continue the hearing to the following day, May 13, 2016,
beginning at 10:00 a.m.
00643084-1 2
Via US Mail and Email:
Brenna M. Durden
245 Riverside Ave., Suite 150
Jacksonville, FL 32202
bdurden@llw-Iaw.com
Re: City of Atlantic Beach Gate Appeal
15-CVPR-2411
Ms. Durden,
Friday, April 29, 2016
Pursuant to Fla. Stat. 119, this firm requests all email correspondence between any Gate
employee, all of its agents including attorneys; and each of the city commissioners, mayor, city
staff members and yourself from November 1 2015 to present day. Thank you.
:jg
Cc: Jeff Sneed
Paul Eakin
Sincerely
Jes
tt
Legal Aistant to Jane West Law
6277 A1A SOUTH, SUITE 101 • SAINT AUGUSTINE, FL 32080
OFFICE: 904-471-0505 • WEB: www.janewestlaw.com
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