Letter from Lake Worth Tee Shop's attorney

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Lengthy, but worth the read.

LAW OFFICES
BOUTWELL & CONNICK
A PARTNERSHIP OF PROFESSIONAL ASSOCIATIONS
411 EAST HILLSBORO BOULEVARD
DEERFIELD BEACH, FLORIDA 33441
ROBERT E. BOUTWELL, P.A. A. THOMAS CONNICK, P.A.

January 24, 2012

To: Barry Freedman
Re: Evaluation of Chances of Lake Worth Beach Tee Shirt Company obtaining a rental Unit at the renovated Lake Worth Casino in light of the manifest unfairness shown by Commission trio of Maxwell, Triolo and Amoroso

Dear Barry:

You have asked me to give you my evaluation concerning your chances of being treated fairly in obtaining a rental Unit at the renovated Lake Worth Casino, especially in light of the manifest unfairness shown to you at the January 17^th Commission meeting by the Commission trio of Maxwell, Triolo and Amoroso. I will give you that evaluation in very clear language.Bottom line evaluation, especially based upon the behavior of the Commission trio of Maxwell, Triolo and Amoroso.

You initially came to me because you felt your were not being treated fairly by the City. You were a long time tenant at the Casino and were supposed to be given a preference in the renovated Casino, along with the other long time tenants. At the time you came to see me, the City plans were to have only 3 units designated for Retail, those 3 Units being Units #5 and #6 (located in the south building) and Unit #7 (located in the north building). Until January 11, 2012, we and the public were lead to believe that you were to be the tenant in Unit #7 in the north building and Fox was to be the tenant in Units #5 and #6 in the south building.

Over the months, when the City presented you with proposed leases, you signed them with essentially no changes. For a period of time, there was a question concerning the language of exclusives desired by you and by Fox Surf Shop, with you asking for only 1 exclusive while Fox asked for 10 exclusives. Ultimately, the Commissioners expressly stated that no one would have any exclusives. You fully accepted the Commission’s policy decision. As recently as January 9^th, you signed the proposed lease that the Asst. City Mgr. asked you to sign, making only a handwritten change to give you the same number of 5 year lease options as the City was giving Fox.

On the evening of November 11^th, the Asst. City Mgr. sent me an email indicating that the City most likely wanted to use Unit #7, which was the space long designated for you, for additional restaurant space so that the entire first floor of the north building could be utilized as a restaurant. She also advised that Fox was now only interested in Unit #5 and that a completely new prospective tenant, a Women’s Fashion Store, was interested in Unit #5 or Unit #6. Since the long plan for you to be a tenant in Unit #7 was being eliminated, the City wanted your response immediately. And to assist, your response was immediate. The next morning, I sent the Asst. City Mgr. an email that manifested your graciousness in stating that for the good of the City, you would give up Unit #7, but that you wanted to be a tenant in either Unit #5 or #6. Sadly, but not unsurprisingly, absolutely none of your decency or graciousness in immediately giving up Unit #7 was made part of the Asst. City Mgr.’s January 12 Memorandum or at the Commission meeting on January 17

I was shocked to read the Asst. City Mgr’s January 12^th Memorandum in which she set forth to the Commission an Option 1 or Option 2, even with the proposed Motions for those Options, and in both Options falsely stated that the only tenant interested in Unit #5 was Fox. That was an absolutely false statement intentionally made, since her own email to me on the evening of January 11^th specifically indicated that a Woman’s Fashionwear Shop was interested in Unit #5, and earlier in the day of January 11^th, I advised her both by email and telephone conversation that you were interested in Unit #5 or Unit #6 or both Units #5 and #6.Thus, the truth was that 3 prospective tenants were interested in Unit #5 ( you, the Women’s Fashion Store, and Fox).

The Asst. City Mgr.’s January 12^th Memorandum to the Commission pointed out that you had added additional language in your Permitted Use description, yet entirely neglected to point out that Fox had also added additional language in its Permitted Use description.

Further, the Asst. City Mgr.’s January 12^th Memorandum totally failed to point out that the attached tenant leases were inaccurately presented.On January 10^th, you hand delivered two signed originals of the latest version of the lease the City had asked you to sign, and on January 11^th I confirmed your hand delivery and also emailed a copy of the latest version of the lease the City had asked you to sign. A copy of that executed lease was not attached to the Asst. City Mgr.’s January 12^th Memorandum or even mentioned. Additionally, the Asst. City Mgr.’s January 12^th Memorandum also failed to mention or point out specifically that Fox had made significant material changes to the lease language and that the Assistant City Attorney was rejecting almost all of Fox’s cross-outs to the lease. The lease attached to the Memorandum concerning Fox, according to my conversation with the Assistant City Attorney Melissa Anderson earlier that day, had been rejected by her as to almost all cross-outs (at the City Commission meeting, I was not allowed to communicate that information to the Commission). The Asst. City Mgr.’s January 12^th Memoranda to the Commission, as stated above, slanted facts against you by misleading or false statement, omissions and lack of material information.

What happened at the Commission Meeting of January 17 shows the extent to which this current Commission majority (the “Commission trio” - Commissioner Maxwell, Mayor Triolo and Commissioner Amoroso) will go to treat you unfairly. You were at the meeting, so you personally saw what happened. Anyone in the audience that night or viewing a tape of the meeting saw what happened -- you were clearly treated unfairly. With the background contained in this letter, this unfairness is even clearer.

The Commission’s decision to lease the entire first floor of the north building to a restaurant tenant eliminated your being awarded Unit #7, the Unit that had purportedly been designated by the City to you as a long time tenant at the Casino. Consequently, only Units #5 and #6 in the south building were available for retail tenants.There was not even the slightest acknowledgment of any appreciation to you that when you were informed on January 11^th of the City’s need for Unit #7 for additional restaurant space, you immediately agreed for the good of the City to graciously give up Unit #7, a Unit that you had long been told by the City would be your rental Unit and which you had for a long time made plans to occupy, with the expectation that you would now get either Unit #5 or #6.

In the progression of the January 17^th Commission meeting, policy decisions were made concerning the north building. Then, the Commission addressed Units #1 through #6, which is the south building.After approving New York Pizza (Units #1 and #2) and Kilwins (Units #3 and #4), it then became time for the Commission to consider Unit #5. As we know, at that point in time, only Units #5 and #6 were now available for retail tenants.

It certainly appeared pre-ordained from what transpired that Fox was getting Unit #5.There was essentially no discussion by the Commission, the Asst. City Mgr. or Broker about the fact that you and Woman’s Fashion Shop also were interested in Unit #5.This non-discussion was consistent with the pre-ordained result telegraphed by the slanted Asst. City Mgr.‘s January 12^th Memorandum in which Fox was falsely stated as the only prospective tenant interested in Unit #5 when the truth was that 3 tenants ( you and the Woman’s Fashion Shop were also interested).There was also no discussion by the Commission, Asst. City Mgr. or Broker of the fact that the Woman’s Fashion Store had offered $30 sq ft for Unit #5 which was clearly more money than offered by Fox which had offered $25 sq ft. There was no discussion that since there was an offer for $30 sq ft on Unit #5, that Unit #5 should be put out for additional prospective tenants who might offer more rent than offered by Fox.There was also no discussion by the Commission, Asst. City Mgr. or Broker of the fact that Fox had expanded its description of Permitted Uses by additional language in its new lease or that this additional language raised any issue concerning the right of first refusal of Fox. Unit #5 sailed through with a unanimous 5-0 vote assigning Unit #5 to Fox.

Now came time for the Commission to consider Unit #6.The rational expectation was that you would be awarded Unit #6.Of course it was expected by you at that moment that you would get Unit #6, since how by any sense of logic, consistency or fairness could the rational expectation be otherwise? After all, so many facts of what had already transpired dictated your getting Unit #6 was the only logical, consistent and fair result: you as a long time tenant had a right of first refusal (like New York Pizza and Fox), your Permitted Use language was expanded but so also was Fox’ Permitted Use language expanded, the rent rate of $25 sq ft that the City, through Asst. City Mgr. Margoles, had advised you it wanted you to pay from the beginning was what you had agreed to pay and signed leases to pay and was the same amount that Fox and New York Pizza had agreed to pay, and these long time Casino tenants New York Pizza and Fox had just received unanimous 5-0 votes by the Commission to get designated Units.[I want to briefly address the rent rate. The City, with the knowledge and participation of the Broker, determined the rental amount for you to pay and that rent rate was put in the leases that the City submitted to you and which you signed.You were told what amount of rent you would pay and the Asst. City Mgr. put the $25 sq ft rent rate in your lease and you signed it.The Asst. City Mgr. and Broker never requested more than $25 sq ft or even inquired as to your paying a higher amount.I am sure that was the same scenario for the other long time tenants of the Casino].

But, rational expectations, fair dealing and logical consistency don’t apply to the Commission trio of Maxwell, Triolo and Amoroso. After all that had previously transpired concerning the south building, Units #1 through #5, the Commission trio of Maxwell, Triolo and Amoroso went to the extent of changing the rules by which everyone else was judged so as to not approve you, along with the participation of the Asst. City Mgr., with the Broker in attendance:

A. The Right of First Refusal was given extensive discussion concerning the award of the Restaurant for Units #1 and #2. The Commission voted in favor of the long time Casino tenant, New York Pizza. As concerns you, a BS reason by the Commission trio of Maxwell, Triolo and Amoroso revolved around the fact that your Permitted Use language was expanded so as to perhaps destroy your right of first refusal. Yet, there was absolutely no discussion by the Commission, Asst. City Mgr. or the Broker during the discussion concerning either Unit #5 or Unit #6 that the Permitted Use language of Fox had also been expanded. So, the fact that Fox’s Permitted Use language was expanded was irrelevant to the Commission trio of Maxwell, Triolo and Amoroso, and the Asst. City Mgr. and Broker, but was highly relevant to them as a pretext in negatively considering you. Very, very unfair.

B. Another example of blatant unfairness against you by the Commission trio of Maxwell, Triolo and Amoroso, was that throughout the meeting this trio adamantly insisted as an absolute, ironclad, rule fiercely enforced by the Mayor that that no prospective tenant was allowed to change what it had submitted. Yet, all of a sudden when it came to you, the rules changed to work against you. The prospective new tenant Women’s Fashion Store (who sought Unit #5 or #6) had advised in writing that it will not be open on every Saturday. In fact, the Broker told the Commission that it was a deal breaker provision for the Women’s Fashion Store if it had to be open Saturdays. It seems beyond obvious for a person of minimal common sense to recognize immediately that it would be a huge issue to the running of the Casino for a tenant not to be open every Saturday, which day will be either the busiest or second busiest day because it is on the weekend. Yet, despite that knowledge, the Commission trio of Maxwell, Triolo and Amoroso refused to approve you for Unit #6 at the same rental terms and same rate that it had in its immediate previous vote approved Fox for Unit #5. Additionally, the Commission trio of Maxwell, Triolo and Amoroso was so intent on trying to find some other alternate than approving you that they wanted to see if they could get some other additional new prospective tenant to take Unit #6. Commissioner Maxwell duplicitously expressed how important it was to get more than $25 a square foot when discussing Unit #6, which would be fine and make sense, until it raises the question of why Commissioner Maxwell did not have the same fervor for also trying to get more than $25 a square foot for Unit #5 instead of just approving Fox for $25 a square foot. Did anyone hear during the discussion of approving Unit #5 any desire by the Commission trio of Maxwell, Triolo and Amoroso as to getting more than $25 a square foot for Unit #5 when the Women’s Fashion Store was offering $30 a square foot for Unit #5 or when Momma Mia attempted to offer more than $25 a square foot for Units #1 and #2? The answer is “no,” $25 a square foot was entirely okay to the Commission trio of Maxwell, Triolo and Amoroso for Fox and New York Pizza, but for you they wanted to try to prevent you from being a tenant or if you were a tenant force you to pay more rent than Fox and other tenants pay. With you, the Commission trio of Maxwell, Triolo and Amoroso changed the rules to treat you negatively. Very, very unfair.

C. There is no way that the votes of the Commission trio of Maxwell, Triolo and Amoroso can be rationally explained concerning the vote on Unit #6 given what had happened with the unanimous vote for Fox on Unit #5 and also the unanimous vote for New York Pizza on Units #1 and #2. Of the long time tenants at the Casino, on January 17^th,you were singled out for unfair treatment by being the only one denied a Unit by the Commission trio of Maxwell, Triolo and Amoroso. What clearly should have happened concerning the vote on Unit #6, and what would have happened without the dysfunctional Commission trio of Maxwell, Triolo and Amoroso is that Unit #6 should have been treated the same as Unit #5 and there should have been a unanimous vote in favor of you being awarded Unit #6. Clearly, you have a right of first refusal like Fox and Lake Worth Pizza, and are similarly situated legally like Fox. Given the small size of Lake Worth Casino, Women’s Fashion Store should have been dismissed out of hand because of its self-imposed refusal to be closed every Saturday. The Broker clearly indicated that Women’s Fashion Store would be closed every Saturday, which the Commission cannot accept (even Commissioner Amoroso indicated that a tenant not being closed every Saturday at the Casino was not acceptable).

So with the procedure followed by the Commission with every Unit in the south building, and by the logic and consistency of the meeting, there was no other reasonable choice than a unanimous vote by the Commission for you to get Unit #6. But by every measure and level of logic, consistency and fairness, the Commission trio of Maxwell, Triolo and Amoroso treated you unfairly and differently that it had treated each other situation by failing to approve you for Unit #6. If even one of this Commission trio had a glimmer of fairness and competency, you would have been awarded Unit #6 because instead of a 3-2 vote against approving you, it would have been a 3-2 vote approving you. This Commission trio of Maxwell, Triolo and Amoroso, each and every one of them, failed blatantly. Very, very unfair.

The fact that that there was a bizarre ending to the consideration of the Casino leases in the south building by the Commission trio of Maxwell, Triolo and Amoroso, in voting to nullify the votes concerning all south building leases except Kilwins should not give you any hope that you will be treated fairly on January 31^st. This bizarre ending by this Commission trio of Maxwell, Triolo and Amoroso was a manifestation of their monumental incompetence, indicating that they are clueless, wildly out of control and irrationally inconsistent when it comes to logical public policy decisions. You can expect that their unfairness towards you will just take another form should you continue to attempt to obtain a Unit at the renovated Casino. A reasonable person can expect that the City of Lake Worth will be ill served on January 31^st by another episode in this third rate bad reality show where terrible public policy decisions result from the grossly flawed decision making of the Commission trio of Maxwell, Triolo and Amoroso.

From my observation of Commission meetings, a special condemnation should be accorded Commissioner Maxwell. Commissioner Maxwell is such an argumentative nihilist that he appears to fervently wish for multiple personalities so that he would have someone to argue with when alone. To Commissioner Maxwell, nothing concerning the Lake Worth Casino is ever satisfactory; no amount of information is ever sufficient or provided timely; and, it is never time to vote on anything.From Commissioner Maxwell’s time on the Commission, and his understanding of the commitment given to long time tenants at the Casino, his behavior and illogic and vote on Unit #6 in light of his votes on the other south building Units are the most inexcusable.

It is a waste of your time, money and emotional energy to expect that you will be treated fairly by the present Commission trio of Maxwell, Triolo and Amoroso. There is a saying that insanity is doing the same thing over and over again and expecting a different result. You can continue to attempt to obtain a Unit at the renovated Casino, but can any reasonable person believe you will be treated fairly after the events described? Or, is it reasonable to expect that you will again be treated unfairly by the Commission trio of Maxwell, Triolo and Amoroso, who will again unfairly change the rules so as to work against you and cynically justify either refusing you a Unit or requiring you to pay higher rent than other similarly situated tenants?

You are too good a person to continue to subject yourself to this abuse.I am not charging you for the time spent in preparing this evaluation letter because I do not consider it fair to you to charge you for giving an evaluation of a circumstance that I consider so blatantly unfair.

Sincerely,
A. Thomas Connick