IN THE CIRCUIT COURT
OF THE SEVENTH JUDICIAL CIRCUIT
IN AND FOR VOLUSIA COUNTY, FLORIDA
GENERAL CIVIL DIVISION
case no 2000-__________-CICI
TANNER ANDREWS, a Florida Resident
Plaintiff
PLAINTIFF ANDREWS
COMPLAINT for RELIEF
Comes now the
Plaintiff
TANNER ANDREWS ,
and alleges the following:
1. This is an action for injunctive, declaratory, and other relief to determine, preserve, and enforce the public right of access to meetings of Defendant and other similarly situated entities,
2. Section 286.011, Florida Statutes, governs meetings of the West Volusia Hospital Authority and other public taxing districts of the State of Florida. The provisions of §286.011, F.S. together with those of Article 1, Section 24(b), Constitution of Florida, are sometimes referred to as ‘‘Sunshine’’.
3. This is an action for injunctive and other relief to determine, preserve, and enforce the public right of access to certain records of Defendant and other similarly situated entities.
4. Section 119.07, Florida Statutes, governs records of the West Volusia Hospital Authority and other public taxing districts of the State of Florida. The provisions of §119.07, F.S. together with those of Article 1, Section 24(a), Constitution of Florida, are sometimes referred to as ‘‘Open Records’’.
5. This is an action for injunctive and other relief to determine, preserve, and enforce the right of citizens to acquire, possess, and protect real property.
6. Chapter 57-2085, Laws of Florida, governs the powers of the West Volusia Hospital Authority. The provisions of Chapter 57-2085, together with Article 7, Section 10, Constitution of Florida, provide certain limits on the taxing and appropriation power of the said Authority.
7. Section 155.40, Florida Statutes, governs the terms under which a taxing entity may lease, sell, or otherwise alien hospitals, and under which certain taxing entities may provide funding to hospitals. The provisions of §155.40, F.S., thereby provide certain limits on the taxing and appropriation power of the said Authority.
8. Section 192.053, Florida Statutes, provides for liens on real property when taxes are unpaid.
9. Sections 194.171 and 194.211, Florida Statutes, provide for jurisdiction and injunctions in matters affecting taxes on real property.
10. The names of the sections and paragraphs of this complaint
are for convenience of reference only,
and shall have no legal effect in construing the facts
alleged or relief demanded.
11. This Court has jurisdiction to grant appropriate relief pursuant to §286.011, F.S.
12. This Court has jurisdiction to grant appropriate relief pursuant to §119.11, F.S. and §119.12, F.S.
13. This Court has jurisdiction to grant appropriate relief pursuant to Chapter 57-2085, L.F., and Article 7, Section 10, Constitution. This Court has jurisdiction to grant appropriate relief pursuant to §155.40, F.S.
14. Venue is proper in Volusia County,
pursuant to §47.011, F.S.,
in that all parties are either natural persons
who are citizens of Florida
resident in Volusia County
or taxing districts located entirely within Volusia County,
and the acts giving rise to this cause took place within Volusia County.
15. Plaintiff Tanner Andrews (hence, ‘‘Andrews’’) is a resident and taxpayer of Florida who seeks access to meetings and records of the West Volusia Hospital Authority. As a citizen of Florida, Andrews has standing to enforce the rights of public access asserted herein.
16. Plaintiff Andrews is the fee owner of real property not wholly exempt from taxation, such property being located in the State of Florida and in the district pertaining to the West Volusia Hospital Authority. As a property owner, Andrews has standing to enforce the rights to acquire, possess, and protect real property asserted herein.
17. Plaintiff Andrews is a registered voter qualified to vote in elections for the West Volusia Hospital Authority Board of Commissioners. As a registered voter, Andrews has standing to enforce the rights of representation asserted herein.
18. Plaintiff Andrews is a member of the public who enjoys civic involvement, and enjoys the benefit derived from an involved citizenry.
19. Plaintiff Andrews is an investor who, from time to time, purchases improved real property for income, use, and/or appreciation.
20. Defendant
West Volusia Hospital Authority
(hence, ‘‘Authority’’)
is a special taxing district of the State of Florida,
situate in the western portion of Volusia County.
As provided by its enabling act, Chapter 57-2085, Laws of Florida,
as amended from time to time,
it is a body corporate and has the power to sue and be sued.
It is governed by a Board of Commissioners
(hence, ‘‘Board’’)
elected as provided by statute.
21. Prior to 01-Dec-1994, the Authority owned and operated a hospital then known as ‘‘West Volusia Memorial Hospital’’ (hence, ‘‘facility’’). The Facility was governed directly by the Board of Commissioners (hence, ‘‘Board’’) of the Authority, with daily operations over-seen by an appointed administrator working for the Board.
22. On 01-Dec-1994, an agreement styled ‘‘Lease and Transfer Agreement’’ (hence, ‘‘Lease’’) between and among the defendant Authority, Memorial Hospital West Volusia, Inc., (hence, ‘‘MH-WV’’) and Memorial Health Systems, Inc., (hence, ‘‘MHS’’) took effect. Under this agreement, MH-WV was to operate the Facility on behalf of the Authority for a period of up to forty (40) years.
23. On 23-Mar-2000, MH-WV gave notice that it intended to terminate the Lease, effective 30-Sep-2000.
24. Subsequent to 23-Mar-2000, the Authority appointed a committee (hence, ‘‘Committee’’) to which it delegated the responsibility of meeting with Adventist Health Systems (hence, ‘‘AHS’’) for the purpose of negotiating a contract for transfer and operation of the Facility.
25. Upon knowledge and belief, the members of the committee (hence, ‘‘Members’’) were Channing Coolidge, Steve Deluca, Mike Grable, Greg LeFils, and Jim Neely. The actual participants in negotiation will be determined upon production by the Authority. All of the Members who participated in the negotiation are reached through the Authority on whose behalf they acted.
26. Subsequent to 23-Mar-2000, the Committee met together and with AHS to negotiate a transfer and sale agreement and did negotiate such an agreement.
27. Subsequent to the Committee’s work and prior to the meeting of 26-Sep-2000, the proposed agreement was changed to cause MH-WV to be substituted as the buyer of the facilities.
28. At no time did the Board solicit offers from other interested parties. No effort was made to assure that the best and highest possible bid was sought and accepted.
29. The facts of paragraph 28 notwithstanding, an alternative offer (‘‘Andrews Bid’’) was made to the Authority prior to the meeting of 26-Sep-2000.
30. At their meeting of 26-Sep-2000, the Board voted to approve a resolution implementing the base agreement with MH-WV (hence, ‘‘MH-WV Agreement’’). The MH-WV Agreement is substantially the same in form and substance as the document negotiated and presented by the Committee. A copy of the base MH-WV Agreement is attached as appendix ‘A’. A copy of the resolution is attached as appendix ‘E’.
31. Along with the MH-WV Agreement, the committee recommended and the Board voted to approve and implement the Indigent Care Reimbursement Agreement (hence, ‘‘Indigent Care Agreement’’). A copy of the Indigent Care Agreement is attached as appendix ‘B’.
32. Along with the MH-WV Agreement,
the committee recommended and
the Board voted
to approve and implement the
document entitled
Agreement - Florida Hospital DeLand
(hence, ‘‘Hospital Agreement’’).
A copy of the Hospital Agreement is attached as appendix ‘C’.
33. The decision in Memorial Hospital-West Volusia, Inc. v. News-Journal Corporation (Slip Op. 1999 WL 20562) speaks for itself.
34. Violation of his rights, including without limitation his rights of access under §286.011, F.S. and §119.07, F.S., his rights in property under Article 1, Section 2, Constitution of Florida, his rights to legitimate government under Article 7, Section 10, Constitution of Florida, and his right of representation under Chapter 57-2085, Laws of Florida, constitutes irreparable harm to Plaintiff Andrews.
35. Defendant Authority will continue to violate §286.011, F.S. unless enjoined.
36. Defendant Authority will illegally delegate its power and the power of future Boards unless enjoined.
37. Defendant Authority will continue to violate §119.07, F.S. unless enjoined.
38. Acts taken in derogation of §286.011, F.S. are null and void from the beginning and of no effect.
39. Andrews reiterates and realleges paragraphs 1 through 38, inclusive, as though fully set forth here.
40. Section 2.4 of the MH-WV Agreement, providing for a purchase price, speaks for itself, and its contents are alleged by reference as though fully set forth here.
41. The purchase price includes payment, retirement, remise, or release from unpaid debt allocated to the hospital by MHS, a Florida not-for-profit corporation. In as much as the computation of remaining debt and use thereof has not been disclosed to the public, this portion of the purchase price was not disclosed to the public timely, and has not been fully disclosed to the public, as would be required to permit meaningful public input and discussion.
42. By refusing meaningful public input and discussion of the purchase price, the Board has violated §286.011, F.S..
43. The Authority intends to carry out those actions contemplated in the MH-WV Agreement. Carrying out actions taken in derogation of Sunshine constitutes an on-going violation of §286.011, F.S., which violation will continue unless enjoined.
WHEREFORE, Plaintiff Andrews prays the court grant the following relief:
44. Andrews reiterates and realleges paragraphs 1 through 38, inclusive, along with paragraphs 40 and 41, as though fully set forth here.
45. That portion of the purchase price alleged in paragraphs 40 and 41 is to be determined by a MHS, a private corporation. The meetings of that private corporation, including without limitation those meetings in which the debt is allocated or to be allocated, are neither advertised nor open to the public.
46. The allocation of debt by MHS, when such debt is to be discharged by or on behalf of the Authority, constitutes an official act in the sense of §286.011, F.S..
WHEREFORE, Plaintiff Andrews prays the court grant the following relief:
47. Andrews reiterates and realleges paragraphs 1 through 38, inclusive, along with paragraphs 40 and 41, as though fully set forth here.
48. That portion of the purchase price alleged in paragraph 41 includes debts incurred by or on behalf of MH-WV.
49. MH-WV operates or has operated the Facilities, carrying out acts in place of and on behalf of the Authority.
50. Meetings of MH-WV must be public meetings in the sense of §286.011, F.S..
51. Those meetings of MH-WV at which the debt was approved as to nature, amount, use of proceeds, and other terms, were not advertised in a newspaper of general circulation published within the district proper to the Authority, nor was the public permitted to attend and be heard.
52. Incurring debt, and approval of nature, amount, use of proceeds and other terms, constitute official acts in the sense of §286.011, F.S..
53. The Authority may not cause to be discharged any debt undertaken in violation of §286.011, F.S.
WHEREFORE, Plaintiff Andrews prays the court grant the following relief:
54. Andrews reiterates and realleges paragraphs 1 through 38, inclusive, along with paragraph 40, as though fully set forth here.
55. Prior to the meeting of 26-Sep-2000, the Board received a cash bid for purchase of the facilities, the amount of which bid exceeded that of the bid ultimately accepted. A copy of that higher bid is attached as appendix ‘D’.
56. The terms of the bid alleged in paragraph 55 were more favorable to the Authority, in that they did not require payment by the Authority of several millions of dollars over a term of years, nor did they require any other payment by Authority to bidder.
57. The minutes of the meeting of 26-Sep-2000, in which the offer of MH-WV was accepted and the offer alleged in paragraph was not accepted reflect no legitimate or legally cognizable reason for choosing the less favorable bid.
58. As a rejected bidder, Andrews has standing to challenge the award of the facilities to a worse and lower bidder.
WHEREFORE, Plaintiff Andrews prays the court grant the following relief:
59. Andrews reiterates and realleges paragraphs 1 through 38, inclusive, along with paragraphs 40 and 55, as though fully set forth here.
60. The Andrews Bid was contained in a letter which is or should have been treated as public input to the Authority.
61. The Andrews Bid was held by the Authority’s administrator and not provided to the Board in time for meaningful consideration.
62. Other material, favorable or necessary to the approval of the MH-WV Agreement, was provided by the administrator to the Board without delay or hinderance. The only material known to be held or delayed was that unfavorable to the approval of the MH-WV Agreement.
63. The administrator of the Authority carries out the will of the Board, or in the alternative, the Board authorizes and empowers each act of the administrator. The refusal to provide the Board with public input in time for meaningful consideration is therefore the act of the Board.
64. The essential requirement of Sunshine that the public have meaningful opportunity to be heard is not met, when correspondence from the public is held and not delivered timely to the Board for full consideration.
WHEREFORE, Plaintiff Andrews prays the court grant the following relief:
65. Andrews reiterates and realleges paragraphs 1 through 38, inclusive, along with paragraph 40, as though fully set forth here.
66. Section 2.5 of the MH-WV Agreement, providing for special retirement benefits, speaks for itself, and its contents are alleged by reference as though fully set forth here.
67. A portion of the purchase price is to be the termination of that certain retirement plan created and operated by MH-WV.
68. Andrews reiterates and realleges paragraphs 49 and 50 as though fully set forth here.
69. Those meetings of MH-WV at which the retirement plan was approved as to nature, initial funding, actuarial assumptions, other terms, on-going funding, the timeliness and sufficiency thereof, and other matters, were not advertised in a newspaper of general circulation published within the district proper to the Authority, nor was the public permitted to attend and be heard.
70. Creation, operation, funding, and under-funding of the retirement plan were official acts in the sense of §286.011, F.S..
WHEREFORE, Plaintiff Andrews prays the court grant the following relief:
71. Andrews reiterates and realleges paragraphs 1 through 38, inclusive, along with paragraph 66, as though fully set forth here.
72. Both MH-WV and AHS are private corporations, associations, partnerships, or persons in the sense of Article 7, Section 10, Constitution of Florida.
73. Provision of special retirement benefits to the employees of a private corporation, or promising to do so, constitutes a use of taxing power or credit to the benefit of the corporation whose employees are so benefited, and to the employees so benefited.
74. The Defendant’s assertions notwithstanding, no paramount public purpose is served by such a pledge of taxing power and credit.
75. The Authority obtains its funds, or a significant portion thereof, through taxes levied on real property in the district proper to it. By using its funds to the benefit of private parties, the Authority increases the tax burden upon Plaintiff Andrews and others similarly situated.
76. Increasing the tax burden upon Andrews and other similarly situated property owners, with the proceeds to be used in violation of statute and Constitution, constitutes interference in the rights of Andrews and similarly situated property owners in the right to hold and enjoy property free from illegal imposition.
WHEREFORE, Plaintiff Andrews prays the court grant the following relief:
77. Andrews reiterates and realleges paragraphs 1 through 38, inclusive, along with paragraph 66, as though fully set forth here.
78. The Agreement requires the Authority to pay MH-WV an undisclosed amount, not to exceed one million dollars, which undisclosed amount is determined solely by MH-WV. This amount is termed the ‘‘Plan Contribution’’.
79. The Agreement requires the Authority to pay MH-WV for fees and expenses, without limitation, an amount determined solely by MH-WV. This amount is termed the ‘‘Actuarial Fee’’.
80. The meetings at which these costs are to be determined by MH-WV are not advertised in a newspaper of general circulation published within the district proper to the Authority, nor is the public permitted to attend and be heard.
81. No portion of the Chapter 57-2085, Laws of Florida, as amended, provides for delegation of the Authority’s power of determination of its expenses to a private corporation which fails to comply with Sunshine.
WHEREFORE, Plaintiff Andrews prays the court grant the following relief:
82. Andrews reiterates and realleges paragraphs 1 through 38, inclusive, along with paragraphs 40, 41, and 66, as though fully set forth here.
83. The fair market value of the facilities, as of 01-Dec-1994, was approximately $26.5 million; the Authority has neither permitted nor suffered deterioration of the facilities since that time. The Authority has caused or permitted improvements to be made, and caused or permitted all necessary equipment renewals to be made timely, such that the property is worth not less than the amount of $26.5 million.
84. The taxpayers of the district proper to the Authority, and each of them, have an interest in preserving the assets of the Authority.
85. The Facilities constitute an asset of the Authority, and may only be aliened pursuant to law.
86. Section 155.40(4), F.S., provides that any sale of the Facilities shall be for fair market value.
87. At no time did the Authority solicit offers for the Facilities from parties other than AHS and MH-WV.
88. The consideration for the sale, as described in Sections 2.4 and 2.5 of the AHS Agreement alleged above, do not constitute a sale for fair market value.
WHEREFORE, Plaintiff Andrews prays the court grant the following relief:
89. Andrews reiterates and realleges paragraphs 1 through 38, inclusive, as though fully set forth here.
90. Section 6 of the Indigent Care Agreement speaks for itself, and its contents are alleged by reference as though fully set forth here.
91. Under this agreement, future Boards of the Authority are bound in perpetuity to a policy of increasing indigent care reimbursement caps, other language in the Indigent Care Agreement notwithstanding.
92. Such an agreement violates the terms of Chapter 57-2085, Laws of Florida, which reserves to the voters of the Authority tax district the power to elect persons to make decisions.
93. Andrews is a registered voter in the Authority district, whose right to elect future Board members to make such decisions would be violated by this provision.
94. If not enjoined, the Authority will carry out the Indigent Care Agreement, including that portion alleged in paragraph 90, thereby causing irreparable harm to Andrews and others similarly situated.
WHEREFORE, Plaintiff Andrews prays the court grant the following relief:
95. Andrews reiterates and realleges paragraphs 1 through 38, inclusive, as though fully set forth here.
96. Section 8 of the Indigent Care Agreement speaks for itself, and its contents are alleged by reference as though fully set forth here.
97. MH-WV and AHS, as owners of the Facilities and of Fish Memorial (Orange City), are to be the sole beneficiaries of the fund to be established as alleged in paragraph 96.
98. Use of the faith and credit of the Authority to establish a fund for the sole benefit of a private corporation is forbidden by Article 7, Section 10, Constitution of Florida.
99. If not enjoined, the Authority will levy taxes against real property owned by Plaintiff Andrews and other, similarly situated persons, to provide the fund alleged in paragraph 96.
100. Such a levy would constitute on-going harm to Andrews, in that it would infringe upon his right to own and enjoy property as guaranteed by Article 1, Section 2, Constitution of Florida.
WHEREFORE, Plaintiff Andrews prays the court grant the following relief:
101. Andrews reiterates and realleges paragraphs 1 through 38, inclusive, along with paragraph 41, as though fully set forth here.
102. There exist records of the debt to be paid, remitted, remised, assumed, or otherwise released by, to, or on behalf of the Authority under the agreement alleged in paragraph .
103. The records alleged in paragraph 102 show the amounts borrowed, the terms of the debt, the repayment history, along with the allocation and use of the funds.
104. The records alleged in paragraph 102 are public records of the Authority.
105. The Authority has refused and does now refuse to permit inspection of these records.
WHEREFORE, Plaintiff Andrews prays the court grant the following relief:
I certify that a copy hereof has been furnished to
all parties listed below
by the method indicated for each party.
Done this
_____
day of
____________ ,
________ .
Sworn and subscribed before me this 27th day
of September, 2000.
West Volusia Hospital Authority by sheriff service
Tanner Andrews
for himself
131 E. New York Ave., #3rd Fl,
DeLand, FLA 32724.
app.
A
MH-WV Agreement
app.
B
Indigent Care Agreement
app.
C
Agreement - Florida Hospital DeLand
app.
D
Andrews Bid
app.
E
Resolution
This information is provided as a public service by
Tanner Andrews, P.O. Box 1208, DeLand 32721.
It is not related to any election campaign,
nor has any candidate reviewed or approved of this material.
The original documents are on file with the Clerk of the Court
and are available for inspection during normal business hours.
Supporting documents are also available at the offices
of the West Volusia Hospital Authority.
from @(#)wvha0006.txt 1.0 23-Sep-2000
proc with @(#)hmac.ta-leg1 1.0c 22-Sep-2000