1

1 DIVISION OF ADMINISTRATIVE HEARINGS

2 DEPARTMENT OF ADMINISTRATION, STATE OF FLORIDA

SUGAR CANE GROWERS COOPERATIVE OF FLORIDA, )

4 ROTH FARMS, INC., and WEDGWORTH FARMS, INC., )

-and- )

5 FLORIDA SUGAR CANE LEAGUE, INC., UNITED )

STATES SUGAR CORPORATION, and NEW HOPE )

6 SOUTH, INC., )

-and- )

7 FLORIDA FRUIT AND VEGETABLE ASSOCIATION, )

LEWIS POPE FARMS, W.E. SCHLECHTER & SONS, )

8 INC., and HUNDLEY FARMS, INC., )

Petitioners, )

9 )

vs. )DOAH CASE

)NOS:74

10 )92-3038

SOUTH FLORIDA WATER MANAGEMENT DISTRICT, )92-3039

11 Respondent, )92-3040

)(Consolidated)

12 and )

)

13 MICCOSUKEE TRIBE OF INDIANS, THE UNITED )

STATES OF AMERICA, FLORIDA DEPARTMENT OF )

14 ENVIRONMENTAL REGULATION, AND FLORIDA )

WILDLIFE ASSOCIATION, )

15 Intervenors. )

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ )

17 HEARING BEFORE: HONORABLE J. STEPHEN MENTON

HEARING OFFICER

DATE: MONDAY, SEPTEMBER 21, 1992

TIME: COMMENCED: 2:10 P.M.

20 CONCLUDED: 2:35 P.M.

21 LOCATION: DESOTO BUILDING, HEARING ROOM 4

1230 APALACHEE PARKWAY

22 TALLAHASSEE, FLORIDA

23 REPORTED BY: KIMBERLY ANN ROBERTS,

COURT REPORTER, NOTARY PUBLIC,

24 STATE OF FLORIDA AT LARGE

2 Representing the Petitioners, Sugar Cane Growers

Cooperative of Florida, Roth Farms, Inc., and

3 Wedgworth Farms, Inc.:

4 WILLIAM H. GREEN, ESQUIRE (Via Telephone)

-and-

5 GARY PERKO, ESQUIRE

Hopping, Boyd, Green & Sams

6 123 South Calhoun Street

P.O. Box 6526

7 Tallahassee, Florida 32314

(904-222-7500)

Representing the Petitioners, Florida Sugar Cane

9 League, Inc., United States Sugar Corporation, and

New Hope South, Inc.:

WILLIAM L. HYDE, ESQUIRE (Via Telephone)

11 -and-

RICK BURGESS, ESQUIRE

12 Peeples, Earl & Blank, P.A.

One Biscayne Tower, Suite 3636

13 Two South Biscayne Boulevard

Miami, Florida 33131

14 (305-358-3000)

15 Representing Petitioners, Florida Fruit and Vegetable Association, Lewis Pope Farms, W.E.

Schlechter & Sons, Inc., and Hundley Farms, Inc.:

17 KENNETH G. HOFFMAN, ESQUIRE (Via Telephone)

Oertel, Hoffman, Fernandez & Cole, P.A.

18 2700 Blair Stone Road, Suite C

Tallahassee, Florida 32301

19 (904-877-0099)

20 Representing Respondent, South Florida Water

Management District:

PAUL NETTLETON, ESQUIRE (Via Telephone)

22 Popham, Haik, Schnobrich & Kaufman, Ltd.

400 International Place

23 100 Southeast Second Street

Miami, Florida 33131

24 (305-539-7222)

-and-

1 ABNER T. COOPER, ESQUIRE (Via Telephone)

South Water Management District

2 3301 Gun Club Road

P.O. Box 24690

3 West Palm Beach, Florida 33416

4 Representing Intervenor, The United States of

America:

SUSAN HILL PONZOLI, ESQUIRE (Via Telephone)

6 Assistant United States Attorneys

Southern District of Florida

7 155 South Miami Avenue, Suite 627

Miami, Florida 33130-1693

8 (305-536-4425)

-and-

9 GEOFFREY GARVER, ESQUIRE (Via Telephone)

Attorney U.S. Department of Justice

10 Environment and Natural Resources Division

P.O. Box 663

11 Washington, D.C. 20044-0663

12 Representing the Intervenor, Florida Department of

Environmental Regulation:

LEE M. KILLINGER, ESQUIRE (Via Telephone)

14 Assistant General Counsel

Department of Environmental Regulation

15 Twin Towers Office Building

2600 Blair Stone Road

16 Tallahassee, Florida 32399-2400

(904-488-9730)

* * * * *

1 I N D E X

ITEM PAGE

PROCEEDINGS COMMENCE . . . . . . . . . . . . . . . . . . . .5

PROCEEDINGS CONCLUDE . . . . . . . . . . . . . . . . . . . 25

CERTIFICATE OF REPORTER . . . . . . . . . . . . . . . . . .26

1 PROCEEDINGS

2 WHEREUPON, THE PROCEEDINGS COMMENCED AT 2:10 P.M. AS FOLLOWS:)

4 HEARING OFFICER MENTON: Why don't we go ahead and

5 figure out exactly who's here. I have a court reporter

6 sitting here in a hearing room with me here. So you're on

7 a speaker phone, it's kind of ringing a little bit. She

8 needs to get the appearances, so go ahead. Starting with

9 the petitioners.

10 MR. HYDE: Bill Hyde with Peeples, Earl & Blank

11 firm on behalf of the Petitioner, Florida Sugar Cane

12 League, et. al.

13 MR. BURGESS: This is Rick Burgess of Peebles, Earl &

14 Blank also on behalf of Petitioners, Florida Sugar Cane

15 League, New Hope South and United States Sugar.

16 MR. GREEN: Mr. Hearing Officer, Bill Green and Gary

17 Perko for the petitioners in the case 92-3038.

18 HEARING OFFICER MENTON: Okay.

19 MR. HOFFMAN: This is Ken Hoffman with Oertel,

20 Hoffman, et cetera, for the Fruits and Vegetables, et

21 cetera.

22 HEARING OFFICER MENTON: Okay. For respondent.

23 MR. NETTLETON: Paul Nettleton of Popham, Haik

24 Schnobrich & Kaufman on behalf of the Respondent, South

25 Water Management District. I believe we may have inside

1 legal counsel also.

2 MR. COOPER: Abe Cooper in-house counsel for South

3 Water Management District.

4 HEARING OFFICER MENTON: All right. For the

5 intervenors beginning with the U.S.

6 MS. PONZOLI: Susan Ponzoli for the United States. I

7 believe we also have Geoff Garver and Tom

8 Watts-Fitzgerald, but they'll have to answer.

9 MR. GARVER: Geoff Garver is also here.

10 HEARING OFFICER MENTON: Is Mr. Fitzgerald there?

11 MS. PONZOLI: It doesn't appear that he is, Mr.

12 Hearing Officer.

13 HEARING OFFICER MENTON: Okay. Any other

14 intervenors?

15 MR. KILLINGER: Yes, Lee Killinger for DER.

16 HEARING OFFICER MENTON: Okay. Any other

17 intervenors? Okay. Is that everybody then? I had

18 went ahead and scheduled this hearing today just so I

19 could get an idea as to where we stood on various issues.

20 I do not intend to resolve any of the motions that are

21 pending today.

22 I've been out of town in hearings for the last

23 two weeks. I've been through most of the stuff that's

24 been filed. I have not had an opportunity to study it in

25 any detail, so I'm not really prepared to forward today to

1 resolve any of the motions.

2 What I wanted to do is to get an idea as to what

3 agreements have been reached between the parties as far as

4 the discovery schedule goes, and if there are any other

5 issues that need to be resolved as a result of the

6 hurricane, and then see if we can schedule all of these to

7 take up next week, next Tuesday, on the status conference

8 we have then.

9 I did receive this morning a copy of the affidavit

10 that was filed by the U.S. Government regarding the status

11 of the Everglades National Park, and it was not

12 quite clear from that affidavit whether that means that

13 all of the issues regarding access to the park are going

14 to be postponed until Thanksgiving or exactly what has

15 been resolved in that regard. So, Miss Ponzoli, why

16 don't you start out and tell me where that stands.

17 MS. PONZOLI: Where it stands, Mr. Hearing

18 Officer, is that access to the park we had asked the

19 petitioners to delay for a month into October, but we had

20 offered them the same early access to the refuge so that

21 that was not delayed.

22 I think that you will be happy to hear that we have

23 not fallen into a black hole in discovery. We had the

24 one week extension by the League and then the Federal

25 Government's request for a one week extension. The

1 parties got on the phone, I guess it's the Tuesday after

2 Labor Day when the two weeks would have expired, and

3 agreed to go forward with discovery with sort of a two

4 week delay for most issues.

5 I sent a letter around reflecting the date that the

6 various forms of discovery that I could think of would be

7 due with the two week adjustment applied, and the only

8 contradiction I received was from the League. They

9 adjusted a few dates. We're not contesting those dates.

10 So the parties have a written record of when

11 interrogatories and request for productions and document

12 productions would now be due with the two week expansion.

13 HEARING OFFICER MENTON: Okay.

14 MS. PONZOLI: We agreed that the United States was

15 forward the parameters it was testing for in the EAA

16 on that Wednesday following the Tuesday, and that on the

17 16th the petitioners would have filed their oppositions

18 or whatever they were filing in response to the last

19 hearing, and this Wednesday, the 23rd, the United States

20 would respond to that. We've begun document productions,

21 or we have scheduled document productions.

22 We are beginning our first depositions tomorrow. The

23 petitioners are taking the first two weeks, the

24 respondents the following two weeks, and most of those

25 depositions have either been scheduled by telephone

1 or by actual notices.

2 I think I owe you an apology for not summarizing the

3 last hearing in a proposed order. I'm going to claim a

4 little post-Andrew trauma and ask you to give me this week

5 to put that together. I understood at the time I was only

6 doing a proposed order regarding the federal entry.

7 When that sort of changed in the way the parties

8 had agreed to brief it, it didn't seem appropriate to

9 reflect it in an order with your signature because it was

10 a little different from before. But I will go back and go

11 through the transcript, try to summarize what I think are

12 fair and accurate rendition of the rulings, and maybe the

13 parties can comment on it and maybe we can resolve it on

14 the 29th. Is that what you would like or not?

15 HEARING OFFICER MENTON: Yes, I think that's

16 probably a good idea. As I recall, there were some issues

17 that we had agreed to or reached some conclusion to with

18 respect to the petitioner's access to the park. Then on

19 the issue of the Federal Government's testing on

20 petitioner's property, we had left that open for further

21 briefing.

22 What I think might be the best way to handle that is

23 in view of all the changes that have taken place as far as

24 Andrew goes, we probably should get on record exactly what

25 modifications have been made to the earlier scheduling

1 order and incorporate in there the conclusions that were

2 reached at the last hearing regarding the petitioner's

3 access to the park as it is now been changed due to the

4 hurricane.

5 So if you can take a stab at maybe drafting that

6 and circulating it, and if there is any dispute as to the

7 conclusions that are reached on there, then we can take it

8 up on the 29th. I think that's important to get that on

9 the record.

10 MS. PONZOLI: Yes, sir. I'll do that. The parties

11 are meeting the morning of the 29th, so maybe we can talk

12 about it and talk to some agreement if there are

13 some differences.

14 HEARING OFFICER MENTON: Okay. Now I have received

15 a number of motions to compel and motions for protective

16 order, et cetera, et cetera. As I indicated, I have

17 flipped through those. I do not have a real good grasp on

18 exactly where all those issues stand right now.

19 One of the things that I would like to do is get an

20 idea from the parties today as to exactly what issues

21 we're going to need to address at the hearing on the 29th

22 so I can make sure that I have fully read and prepared

23 myself to resolve those on the 29th.

24 So I guess what I think the next step we should do

25 hear today is first of all hear from the petitioners

1 to see if they have anything to add to what Miss Ponzoli

2 has summarized regarding the modifications to the

3 discovery schedule, then I would like to hear from each of

4 the parties to have them outline for me exactly what

5 issues we need to get resolved on the 29th.

6 Okay. So why don't we start with the petitioners,

7 beginning with the League.

8 MR. BURGESS: This is attorney Rick Burgess with

9 Peeples, Earl & Blank in Miami, Florida on behalf of the

10 League, United States Sugar, and New Hope South. I think

11 Susan has correctly summarized, as I understand them, the

12 letter she circulated on September 9th and then our

13 response on September 10th detailing adjustments to

14 discovery items and the dates formally due and that

15 they're now due. I think there is consent with the

16 parties with respect to those items.

17 HEARING OFFICER MENTON: Okay. I think I have maybe

18 one of those letters. I don't think I have both of

19 them. I don't know if I have any copies of them in all of

20 the correspondence that's been going back and forth

21 between the parties.

22 MR. BURGESS: Perhaps they can serve as attachments

23 to the order that Susan is going to circulate.

24 HEARING OFFICER MENTON: Okay. That's fine.

25 MR. BURGESS: Okay. We're in a position today to

1 make a list for things to be heard on the 29th, what we

2 understand is ready to be heard on the 29th. If you want

3 me to start that now, I can.

4 HEARING OFFICER MENTON: Okay. Go ahead.

5 MR. BURGESS: With respect to our access and entry to

6 the refuge and to the park, I think the last hearing left

7 open two questions with respect to the splitting of core

8 soil samples and the frequency of sampling.

9 I think both of those issues apparently still remain.

10 Although there has been correspondence between the parties

11 on them, we can try again and will try again to resolve

12 them in advance of the 29th. But absent resolution, I

13 think we will be presenting evidence at that hearing.

14 HEARING OFFICER MENTON: Okay. That's the

15 splitting of the samples and what else?

16 MR. BURGESS: The frequency of sampling and then

17 whether or not the soil cores can be split or whether

18 replicate cores should be taken.

19 HEARING OFFICER MENTON: Okay.

20 MR. BURGESS: With respect to the United States'

21 access, that's a little bit more complicated. They have,

22 in fact, moved a motion compelling discovery for entry

23 into the EAA; as Susan said, I think there is one final

24 paper or pleading that they're to file tomorrow.

25 There is a lot of discrepancy with respect to

1 their entitlement that the League has raised in its

2 papers, also with respect to the scope of their requests,

3 the parameters that they're testing for, and apparently

4 also a dispute as to disclosure of methodology.

5 The League is ready to disclose the methods that it

6 will apply to its samples. The United States apparently

7 is not. I would assume that will be argued in full on the

8 29th.

9 HEARING OFFICER MENTON: Okay.

10 MR. BURGESS: That's with respect to entry and

11 access. There are other issues that I don't think are

12 right from a motion standpoint, but the parties are

13 continuing to discuss them and I hope will continue to

14 discuss to try to narrow the issues before the 29th. That

15 would include the exchange of privilege list and also the

16 exchange of expert witness documents other than as

17 contemplated by the discovery order pursuant to subpoena

18 duces tecum.

19 As I said, I don't think those have been brought

20 to the floor by way of motion, but, perhaps, we can

21 schedule an all attorney conference call. Susan, other

22 than the morning of the 29th, perhaps later on this week

23 to try and resolve all outstanding issues we list here

24 today.

25 MS. PONZOLI: That would be fine.

1 MS. PONZOLI: Okay. I believe that's all I have for

2 the moment.

3 HEARING OFFICER MENTON: Okay. How about the

4 Cooperative?

5 MR. GREEN: Mr. Menton, in addition to what Mr.

6 Burgess mentioned, we have a motion for protection order

7 pending, regarding financial information requested in

8 a production of documents by the United States, and we

9 expect that that will be heard; although, we have not

10 received a reply to that motion yet from the Federal

11 Government.

12 The other issue is the testing and entry. I think

13 it's been covered fairly well by Mr. Burgess. You have

14 already received our response on that, and we're awaiting

15 the Government's response.

16 HEARING OFFICER MENTON: Okay. All right. Fruit

17 and Vegetables.

18 MR. HOFFMAN: This is Ken Hoffman for Florida Fruit

19 and Vegetable Association and others in DOAH 92-3040.

20 Mr. Menton, we would be joining in the arguments

21 concerning the entry onto the property. We joined in

22 objections to that, but we didn't file any special memo.

23 We just embraced the ones that were already filed by the

24 Co-op and the League.

25 We would also be joining in the argument concerning

1 discovery; although, I don't know how it's brought before

2 you. The Co-op filed a motion for protective order.

3 Technically, I don't know if they needed to do that for

4 the request for documents. We've objected to the kinds of

5 questions concerning the taxes paid, for instance, by --

6 I think it's things like taxes and what kind of employees

7 we employ, what kind of forms we fill out for foreign

8 employees, and things like that.

9 I don't believe you also have to file a protective

10 order, but we would be arguing the same thing with respect

11 to what we objected to in the request for production

12 served on us by the United States. I have not received a

13 motion to compel answers to those questions, which we've

14 objected to, but they may be on the table. I'm not sure

15 as I understand the comments made so far.

16 HEARING OFFICER MENTON: Yes, I have not seen a

17 motion for protective -- I mean, a motion to compel on

18 that. I have received a motion for protective order. I

19 don't know, Miss Ponzoli, if you feel it's right to bring

20 those issues up, or if it's something that you think can

21 be discussed between the parties and resolved without

22 having to get into it on the 29th?

23 MS. PONZOLI: We have discussed it with the

24 Cooperative. We will be filing our brief I believe

25 tomorrow, and then I believe our entry brief is not due

1 tomorrow, but due Wednesday. Yes, we think that the

2 motion for protective order as to the Cooperative is right

3 for the 29th, and we are content to argue it as against

4 the Cooperative on the 29th.

5 HEARING OFFICER MENTON: I assume the issues are

6 going to be similar because I did note that the

7 objections in a lot of cases seem to be made by all of the

8 parties to the same request, and so I would assume that

9 the issues are, at least, very similar, and that all of

10 the parties will be prepared to address those issues and

11 we can resolve them once and for all and get them behind

12 us and move onto bigger and better things.

13 MS. PONZOLI: I think that's fine. I guess our only

14 desire would be to be fully on notice as to what people

15 were going to argue at that hearing. If they only filed

16 some broad-based objection, it would be helpful if they

17 would explain that. We have attempted to resolve this and

18 really have reached no -- there has been nothing

19 forthcoming.

20 HEARING OFFICER MENTON: Well, if either of the

21 petitioners intend to raise arguments other than those set

22 forth in the Cooperative's motion for protective order,

23 then make sure that those are filed by Friday and received

24 by the U.S. by Friday.

25 MR. BURGESS: This is Rick Burgess on behalf of the

1 League. We will do that. We will review the

2 Cooperative's and if there are additional arguments to be

3 made other than is set forth in our objection, we will do

4 so.

5 HEARING OFFICER MENTON: Okay.

6 MR. BURGESS: But frankly, I was awaiting motion

7 to compel or other documents from the United States in

8 response to our objections where they would set forth

9 perhaps their entitlement to the type of information

10 sought.

11 So really to bring it full circle from a briefing

12 standpoint, although as Susan correctly pointed it out, we

13 had not had any discussion with her in the nature of

14 trying to settle the matter, we would also be expecting

15 some sort of a brief to that issue similar to what she

16 intends to file with respect to the Co-op.

17 HEARING OFFICER MENTON: From what I understand

18 she's going to raise those issues tomorrow in a pleading

19 that has been raised by the Co-op, so you'll be on notice

20 then as to what the U.S. position is at least with respect

21 to the arguments raised by the Co-op --

22 MR. HOFFMAN: This is Ken Hoffman. I would want to

23 point out I joined the League's attorneys comments with

24 respect to the objections to request to, et cetera, but we

25 have filed those objections. They're not vague I don't

1 think, and we would rely upon those and what's in the

2 Co-op's memo, which I haven't read, to tell you the truth,

3 read myself. I don't read everything learned counsel

4 filed, but I will do that.

5 With our objections and that memo, I don't know if I

6 need to file anything else, but I would like to make sure

7 that our objections are part of the record and part of

8 what we would rely on.

9 HEARING OFFICER MENTON: Right. I understand.

10 You're objections are part of the record and it's part of

11 what you can rely on. I guess what I was understanding

12 Mr. Burgess to say is that he was looking for some

13 statements from the U.S. as to its position, and I would

14 assume that those issues will be covered in the responses

15 that they're filing tomorrow to what the Co-op said.

16 Now if the U.S. has any further comment with respect

17 to the objections that were raised by the Fruit and

18 Vegetable Association or by the League that is not covered

19 in their response that's filed tomorrow, then that too

20 ought to be served and filed by Friday, okay, just so

21 everybody has an opportunity to see what the arguments are

22 before Tuesday.

23 MR. HOFFMAN: Thank you.

24 HEARING OFFICER MENTON: Mr. Hoffman, was there

25 anything else that you had other than the objections

1 that you've noted?

2 MR. HOFFMAN: I think the two major issues that we

3 would participate in would be entry onto the land and the

4 request for production and interrogatory objection.

5 HEARING OFFICER MENTON: Okay. With respect to the

6 respondent, are there any other additional issues other

7 than those outlined by petitioners that they see need to

8 be addressed next week.

9 MR. NETTLETON: Mr. Hearing Officer, this is Paul

10 Nettleton on behalf of the District. None come to mind at

11 this point. As far as I know, we're not planning to

12 raise any additional issues other than those that have `

13 been already discussed.

14 I would simply point out we filed a response to

15 Cooperative's motion for protective order setting forth

16 our belief concerning the relevancy and the nature of

17 their objections, the relevancy of the discovery as well

18 as the nature of their objections. And I would assume as

19 to everyone else apparently that the ruling on that will

20 have a bearing on the objections followed by the other

21 petitioners to the similar discovery.

22 HEARING OFFICER MENTON: Okay.

23 MR. NETTLETON: With regard to the exchange of

24 privilege lists and expert documents that Mr. Burgess

25 raised earlier, I have not been involved in any

1 discussions concerning that. I understand that those

2 discussions may be coming up with regard to Mr. Parks'

3 deposition, and the U.S.'s motion for protective order.

4 I would like to be involved in any discussion that go

5 on this week. Mr. Burgess indicated the suggestion of

6 setting up a conference call because we would like to be

7 included in that and I have not to date discussed that

8 with anybody as far as what's going on in those

9 discussions.

10 HEARING OFFICER MENTON: All right. Well, just make

11 sure then that Mr. Nettleton is included in any

12 discussions that take place on those issues. DER, is

13 there anything you have to add?

14 MR. KILLINGER: I don't believe I have anything to

15 add. I would second Paul's statement about the privilege

16 list and the expert documents because we have not been

17 involved in those discussions either.

18 HEARING OFFICER MENTON: Okay. Miss Ponzoli, back

19 to you again. Is there anything else further from the

20 U.S. that you can see?

21 MS. PONZOLI: No, sir. I think that in regard to the

22 objections to interrogatories, I think the United States

23 is comfortable arguing based on their arguments raised in

24 the objections to interrogatories on financial and those

25 issues, if there are other objections, it may require

1 further briefing.

2 And so I just want to be clear that the two massive

3 issues, the financial documents and the entries are

4 probably broad enough in scope that that will take a

5 pretty good hearing to resolve on the 29th.

6 HEARING OFFICER MENTON: Okay. Well, if there are

7 any other objections that are not covered within the scope

8 of the financial documents, we'll just have to isolate

9 those at the hearing. If we had to postpone those

10 to a further time, we will do that.

11 I just want to make sure we have the discovery moving

12 along at a good pace and resolving the objections as

13 quickly as possible so everyone knows what has to be

14 produced and when. Okay. Does that pretty much cover the

15 issue we're going to have to deal with? It appears the

16 entry onto the land by the U.S. Government onto the

17 petitioner's property as well as the remaining issues on

18 the testing by the petitioners in the park with respect to

19 the splitting of the samples and the frequency of

20 sampling.

21 Now as I indicated at the last hearing, that may

22 require some evidentiary presentation to support the

23 position of the various parties and each of the parties

24 should be prepared to present that evidence at the hearing

25 on the 29th so that we can resolve this issue once and for

1 all.

2 Okay. Then I guess the other issues are going to be

3 the objections to the discovery that was propounded by the

4 U.S., and in particular, focusing on the financial

5 requests that were made to the petitioners. Okay.

6 MR. NETTLETON: Mr. Hearing Officer, this is Paul

7 Nettleton again. That pretty much covers it as I

8 understand it. But from your earlier comments, you had

9 indicated that Miss Ponzoli is going to be submitting a

10 proposed order regarding scheduling.

11 It's my understanding that as far as modifications of

12 anything in the scheduling order, that nothing along those

13 lines has been proposed at this point. It was simply

14 agreement of counsel to put off the due dates of paper

15 discovery for two weeks and obviously depositions got

16 started a little later than anticipated, but the two week

17 schedules are going to start now.

18 I also understand something that has not been raised.

19 We also agreed entirely subject to your approval to put

20 off the legal standards and burden of proof briefs. I

21 think it was an additional two weeks from when they were

22 originally planning to be filed so that the initial brief

23 would now be due on October 5 and the responding brief

24 would be due on October 19.

25 MS. PONZOLI: I think it's the 20th, Paul.

1 MR. NETTLETON: 20th. Okay. I wanted to raise

2 those matters.

3 HEARING OFFICER MENTON: Okay. That's fine. Just

4 make sure all that is correctly summarized in an order

5 and we'll get that on the record. If there are issues

6 that have not been resolved by agreement, then make sure

7 that those are brought to my attention and we'll

8 incorporate them in the order. We'll address them in the

9 hearing on the 29th and incorporate them in the order

10 ultimately.

11 Okay. That was essentially all I wanted to do today

12 was to make sure I got an idea as to what was going on in

13 terms of discovery and make sure that everybody was

14 prepared to address the necessary issues on the 29th, and

15 I think we have done that.

16 Are there any other matters that anybody sees that we

17 have to take up today?

18 MR. BURGESS: This is Rick Burgess again, Mr.

19 Hearing Officer. What time is the hearing scheduled for

20 that Tuesday the 29th, and have we reserved enough time to

21 cover all those things we've schedule?

22 HEARING OFFICER MENTON: Okay. I don't think there

23 was a time set per se, so I'm glad you brought that up.

24 I think at the last hearing, people had raised the issue

25 that it was easier to schedule the hearings in the

1 afternoon so that way they can fly in in the morning. I

2 was assuming that we would proceed under that format and

3 schedule the hearing for the same time, I guess, two

4 o'clock, unless there was some reason to start it earlier.

5 Now I am free that whole day, so I am available to

6 start it in the morning if there any need to do that?

7 MR. HOFFMAN: This is Ken Hoffman. I would like to

8 ask that not, otherwise I couldn't be here. Two o'clock

9 is fine for me. I just wanted to ask that it not be in

10 the morning.

11 HEARING OFFICER MENTON: Does anybody see a problem

12 if we start at 2:00 and finishing? We'll go to whenever

13 we need to.

14 (WHEREUPON, HEARING NO OBJECTION FROM COUNSEL, THE

15 HEARING CONTINUES AS FOLLOWS:)

16 HEARING OFFICER MENTON: Okay. We'll do that. We'll

17 start it at two o'clock here at the Desoto building where

18 we have done the other hearings, and I guess we'll just

19 take care of these issues.

20 I think if there's anything further, we'll have to

21 postpone it until the next status conference that we have,

22 but this should get us a good start in getting discovery

23 back on line.

24 MR. BURGESS: This is Rick Burgess. Ken, would you

25 be able to start about 1:00? I'm just concerned we might

1 lose it on the back end --

2 MR. HOFFMAN: I can get there by 1:00.

3 HEARING OFFICER MENTON: Okay. Is 1:00 good for

4 everybody?

5 (WHEREUPON, HEARING NO OBJECTION FROM COUNSEL, THE

6 HEARING CONTINUES AS FOLLOWS:)

7 HEARING OFFICER MENTON: Okay. Let's do it at 1:00.

8 Anything else for today? Okay. Just see you all on 1:00

9 next Tuesday.

10 (WHEREUPON, THE HEARING CONCLUDED AT 2:35 P.M.)

2 CERTIFICATE OF REPORTER

4 STATE OF FLORIDA )

5 COUNTY OF LEON )

7 I, KIMBERLY A. ROBERTS, Court Reporter and Notary

8 Public in and for the State of Florida at Large:

9 DO HEREBY CERTIFY that the foregoing hearing was taken 10 before me at the time and place therein designated;

11 that my shorthand notes were thereafter reduced to typewriting

12 under my supervision; and the foregoing pages, numbered 1

13 through 25, are a true and correct record of the foresaid

14 proceedings.

15 I FURTHER CERTIFY that I am not a relative, employee,

16 attorney, or counsel of any of the parties, nor relative or

17 employee of such attorney or counsel.

18 WITNESS MY HAND AND OFFICIAL SEAL THIS 22nd DAY OF

19 September, A.D. 1992, IN THE CITY OF TALLAHASSEE, COUNTY OF

20 LEON, STATE OF FLORIDA.

23 _______________________________