Exh 10AAGENDA ITI';NI #lUA
DI;CENIBIrR 12, 2005
IN THE COUNTY COURT OF THE
FOURTH JUDICIAL CIRCUIT, IN AND
FOR DUVAL COUNTY, FLORIDA
DU•ANE ROBERTS and
CAROL ROBE.RTS,
Plaintiffs,
v.
CITY OF ATLANTIC BEACH,
FLORIDA,
Defendant.
CASE NO. 16-2004-CC-1064-XXXX
CONSENT DECREE
WHEREAS, Plaintiffs/Petitioners, Duane Roberts, et al., initiated the above-
captioned suit consisting of a Petition for Writ of Certiorari and Complaint for
' Declaratory Relief;
WHEREAS, Defendant/Respondent has denied the Petitioners' allegations
raised in this action and has denied that the Gity's codes and ordinances are deficient,
unconstitutional or otherwise unlawful in any manner;
WHEREAS, Defendant/Respondent has denied Plaintif~'slPetitioners'
allegations and has specifically assented that the meeting held on•September 14, 2004
did not deny the Petitioners' due process rights and particularly denies that any of the
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AGENDA ITEM #l0A
DECEMBER 12, 2005
' City's enactments, agreements, or ordinances has been deficient, unconstitutional or
otherwise unlawful in any manner;
'VVHER.)rAS, the Petitioners and Respondent seek a resolution of this case that
wilt put to silence any doubt as to the validity or constitutionality of the City's
Dangerous Dog Ordinance and/or its enforcement efforts to ensure the health, safety
and welfare of the citizens of the City oaf Atlantic Beach, Florida from .similar
incidents o~injuries caused on dogs and other animals declared as "dangerous" under
City Ordinance;
WHEREAS, the parties now desire to resolve the issues raised in this litigation,
without further proceedings and without admitting any fault or liability.
NO~?V, THEREFORE TT rS HEREBY STIPULATED AND AGREED, by and
between the undersigned, as follows:
1, The parties have jointly approved and signed a Settlement Agreement
that has been executed on .Sec attached Exhibit 1.
2. The Settlement Agreement provides the full and complete terms and
conditions for the resolution of this case.
3. The Settlement Agreement provides that the Plaintiffs/Petitioners, by
and through their counsel, agxee to dismiss this case with prejudice, on
the xnlerits. The signature of counsel below serves as a stipulation to
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AGIrNDA ITENI #l0A
DECI;NIBTrR 12, 200
• dismiss this case, with prejudice, pursuant to F1a.l7..Civ.p.
1.42Q(a)(1)(B). Notwithstanding the dismissal of this case, this Court
will retain jurisdiction over this case for purposes of enforcement of this
Consent 17ecree and the Settlement Agreement.
~. Until such tune, this case shall remain closed, and all judicial hearings,
ruotions or other actions (other than hearings, motions or other actions
to effect and enforce this Consent becree and the Settlement
Agreement) are deemed moot.
5. Each of the undersigned represents that they are the representative for
the parties indicated, with full and final authority to bind the parties to
this agreement.
Michael Berry Ernest H. Kohlmyer, lIT
Counsel for the petitioners Counsel for Respondent
bate:
County Judge
cc: Alan Jensen, fisquire
City Attorney
City of Atlantic Beach, Florida
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AGIrNDA ITIJNI #l0A
DECENIBI;R 12, 200
' 935 North Third Street
Jacksonville Beach, Florida 32240-0457
Michacl L. Berry, .lr., Esquire
Anthony, Berry, DiRito & Goode, LLP
333 First Street Forth, Suite 305
Jacksonville Beach, Florida 32250
Ernest ~i, Kohlmyer, YTT, Esquire
Bell, Leeper & Roper, P.A..
2816 East Robinson Street
Orlando, Florida 32803
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AGENDA ITEM #l0A
DECEMBER 12, 2005
SETTLEMENT AGREEMENT
THIS SETTLEMENT AGREEMENT is entered into as of December ,
2005, by and among DUANE ROBERTS and CAROX, ROIi;EItTS (collectively
referred to hereinafter as tlae "Petitioners"},and the CITE' OF ATLANTIC BEACH,
FLORYDA (collectively hereinafter referred to as the "Respondent" and/or "CITY").
'WHEREAS, by an Ordinance enacted in 1999 and in existence before
September 14, 2004, the City Commission adopted Article I Section 4 {the
"Dangerous Dog" Ordinance), providing specific regulations for the declaration of
"dangerous dogs" and providing for certain enforcement conditions for subject
owners 'within the City of Atlantic Beach, )"lorida; and
WHEREAS, on July 27, 2004, a sworn statement was prepared and filed by
Complainant, Chris Burgin, alleging that the Petitioner's German Shepherd, referred
to as "Baron'', caused physical injury to Mr. Burgin on public property without
provocation; and
WHEREAS, as a result of this Cornglaint, the City, by and through its Animal
Contxol Authority, conducted an investigation and made an initial determination that
tilC Sll'u"JCCL u0g "narGll" s;tGUld u8 C1aSSlllcu nS a "~ail~~ivi3SI1i1ig" Usid~.i Secticri
4-10 of the City's Code of Ordinances, r~vhich determination the Code Enforcement
Board recommended be made fnal after conducting a hearing as requested by
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AGRNDA ITIJNI #l0A
DI:CENIBI:R 12, 2005
' Petitioners pursuant to Sec.4-i 1; and
WHEREAS, the Animal Control Authority in fact made a final determination
to classify said dog as dangerous, vuhich subjected the dog and its owners to all
provisions of See.4-11 and 4-12 of the Atlantic Beach Code of Ordinances; and
WHEREAS, thereafter Petitioners filed a Petition far 'Writ of Certiorari and
Complaint for Declaratory Relief, as amended, in the case styled Duane Roberts and
Carol Roberts v. City of Atlantic leach, Florida; Case No.16-2004-CC-10634 i~a the
Duval County Court for the p'ourth Judicial Circuit ofthe State ofFlorida {hereinafter
referred to as the "Lawsuit"); and
WHEREAS, upon the conclusion of the voluntary settlement discussions
between the parties and other meetings and communications between and among
counsel for the parties to the Lawsuit, the parties have agreed to the terms of this
Agreement as the best available means and method for both settling, abating,
dismissing and terminating the Lawsuit and resolving the Animal Control Authority
proceedings against Petitioners.
NOW, THEREFORE, inconsideration of the performance of the following
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not herein recited, but the receipt and suff ciency of which are hereby acknowledged,
the parties hereby agree as follows:
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AGENDA ITEM #10A
DECEMBER 12, 2005
' Recitals: The recitals set forth above are true and correct and are incorporated
herein by reference.
Insurance and Bonding Requirement: The City agrees to accept as full
satisfaction of Section 4-11 ofits Dangerous Dog Ordinance as follows:
(i) Petitioners shall immediately obtain and the City shall issue a certificate
of registration for the dog from the Atlantic Beach Animal Control Authority and
renew said certificate annually, and provid~ecomply with the following requirements
of Sec.4-11(2);
(ii) Petitioners agree to fully comply with Subsection (a) by obtaining and
maintaining a current certification of rabies vaccination each year in renewing their
certificate of registration;
(iii) Petitioners agree to fully comply ~uvith Subsection (b) by posting
appropriate warnizags signs on all entry pa ints to the Petitioners' residence identifying
the presence of the subject dog. Such sign shall state "BE'UVAlZIr OF DOCr" or other
substantially similar warning. Petitioners shall also c~orzstxuet provide a proper
enclosure of a "dangerous dog" (i.e., a securely fenced or enclosed area) to confine
their dog "Baron";
(iv) Petitioners agree to fully comply 'with Subsection (c) by obtaining and
providing proof of permanent identification of the subject dog (such as by a tattoo on
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AGENDA ITEM #l0A
DECEIYIBER 12, 2005
• the inside thigh or electronic implant}; and
(v) Petitioners' agreement to obtain and maintain homeowner's insurance,
or other liability insurance as required under Subsection (2)(d), which shall provide
coverage for personal injury, including medical reimbursement to any third party for
any injuries caused by the subject dog. The amount of said liability insurance shall
be at least one hundred thousand dollars ($100,000.D0). The City agrees to waive the
Petitioners' obligation to obtain and maintain a separate surety bond as stated in
subsection (~)(d) so long as sufficient liability insurance is provided by the
Petitioners and proof of such insurance is provided to the City.
Confinement Ytestrictio~ns: As additional consideration in this case, the
Petitioners agree to the following terms and conditions regarding the confinement and
public handling of the subject dog:
(i) Petitioners agree to comply with the restrictions described in
Subsection (4) by muzzling the subject dog at all times tWhen it is within the City's
geographical limits and not confined in a securely fenced or enclosed area.
(ii} Petitioners further agree to utilize a substantial chain or leash at all
times when the subject dog is ~vithin the City's geographic limits and outside a proper
enclosure and that such is handled by an adult competent to properly control the
subject animal.
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AGI';NDA ITRM #l0A
D,CCIrMBIrJR 12, 2005
• M (iii) Other conditions and restrictions or Subsection 4 governing othex
confinement and transportation shalt be enforced as if specifically re-stated herein.
Declaration of Y}angerous Dog: The City agrees to forego any and ail
existing code enforcement action against the Petitioners in regard to the cnforcement
of Section 4-10 and 11 for any incidents currently known to the City Officials as of
the date of this Agreement, in exchange for: (l) the execution of this Agreement, (2)
entry of a Consent Order in the subject lawsuit in the form attached hereto (Exhibit
A) and (3) the continuous adherence to the Agreement's terms and conditions. As
such, tkie City will not officially dcfinc the subject dog as "dangerous" so long as all
terms and conditions of this Agreement are followed by the Petitioners. However,
notwithstanding any language contained herein, if"Baron" subsequently attacks or
bites a person or a domestic animal without provocation, both the dog and Petitioners
shall be subject to all provisions of Sec.4-12 of the Atlantic Beach Code of
Ordinances.
Approval of Clty Commission; This Agreement will be recommended for
approval to the City Commission by the City's attorneys, but such final approval rests
solely with the City Commission at a properly noticed public meeting, and such final
approval is a condition precedent to the enfozceability of any provision hereof. This
Agreement shall be presented to the City Commission at a scheduled public meeting
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AGENDA ITCNI #l0A
DECIrNIBCR 12, 2UU5
' within fourteen (14) days after delivery to the City attorney of an original Settlement
Agreement fully executed by the Petitioners and their attorney.
Attorney's Fees and Costs: The Parties shall be solely responsible for the
payment of their own respective attorney's fees and costs incurred by them in the
course of the Lawsuit. Within ten (10) business days from the date of i:inal approval
of the Settlement Agreement by the City Commission, the Parties will submit the
proposed Consent Decree to the Court. Issuance of the Consent Decree by the Court
in a fomn acceptable to both parties is a condition precedent to the agreement and
undertakings in this Settlement Agreement and should the Court decline to enter the
Consent Order, then this Settlement Agreement shall be null and void.
)Enforcement: This Settlement Agreement is binding and enforceable in a
court of competent jurisdiction through the enforcement powers of such court. In the
event it shalX become necessary for any party to take judicial action of any type
whatsoever to enforce this Settlement Agreement, the prevailing party or parties shall
be entitled to recover all reasonable attorneys' fees, costs and expenses, including all
out-of-pocket expenses that are not taxable as costs incurred in connection with any
such action. The parties agree that venue for any judicial proceeding pertaining to the
enforcement of this Settlement Agreement shall be Duval County, Florida.
This Agreement is enforceable only by the parties hereto and nothing herein
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AGENDA ITEM #l0A
DECEMBER 12, 2005
" is intended to grant or convey to any person not a party to this Agreement the
authority, ability or capacity to bring any action or proceeding to enforce any term
hereof.
Nothing contained herein shall prohibit the City from enforcing future
violations of its Code of Ordinances against Petitioners or their dog "Baron" through
code enforcement proceedings or other administrative action. -
Sole Agreement: This Settlement Agreement and the proposed Consent Order
appended to it constitutes the entire and only agreement between the parties
pertaining to the Lawsuit and the Recitals.
Sole Judgment: Tt is understood and agreed by the parties hereto that each of
the parties have relied upon their own judgment as to alI matters pertaining to the
advisability of entering into this Agreement, and that no representations or statements
other than those set forth herein have been relied upon by any party to any e~ctent
whatsoever in entering into this Agreement. Each of the parties represent and
acknowledge that such party relied upon, or has had the opportunity to rely upon, the
advice of an attorney of his, her or its own choice, and that the terms of this
Settle?x~ent Agreement have been completely read and that the terms hereof are fully
understood and voluntarily accepted.
No Admission of Lrror: By signing and approving this Settlement Agreement
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AGENDA ITEM #l0A
DECEMBER L, 2005
" the City, the City Commission, and its enforcement agencies and its representatives
are not making any admission or representation that the City, the City Commission,
or its officials committed any error, either by action or non-actian, concerning the
matters that are the subject of the Lawsuit,
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AGIJNDA ITIJIYI #l0A
DTJCCMBCR 12, 2005
PETITIONERS
DUANE ROBERTS
CAROL ROBERTS
DEFENDANT
CYTY OF ATLANTIC BEACH, FLORTI7A
CITY COMvIISSION
By:
Name:
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