Planner Bill Brisson finally drew a deep line in the Holmes Beach sand.
The Holmes Beach City Commission is overstepping legal bounds in its attempt to regulate formula businesses, he said.
And he won’t back the commissioners in court if they insist upon overreaching against his advice and end up getting sued, as he suggests is likely.
“I won’t be able to support it,” Brisson said. “Because I know what I will be asked at trial.”
That was the theme of six pages of recommendations given by Brisson at the Dec. 12 Holmes Beach City Commission working session.
“We don’t have the character citywide with regard to commerce to install a blanket formula business moratorium,” Brisson said. “I do believe we have a shot of doing downtown.”
Brisson said having only one formula business, a Domino’s Pizza at 5606 Marina Drive, gives the downtown a “character” composed of local storefronts where a chain ban might be able to stand up in court.
Brisson’s legal concerns about a blanket formula business ban were buttressed by city attorney Patricia Petruff.
“It’s when we get sued. Not if,” Petruff said.
Petruff introduced a legal aide from her office, Alexander Stewart, who cited seven examples of case law offering cautionary tales of cities that tried with varying degrees of success to ban formula businesses.
The case of Islamorada involves similarity to Holmes Beach, Stewart said. Islamorada argued it wanted to preserve a unique and natural small town with certain characteristics.
The court found against the Islamorada ban because it already had a number of formula retail businesses and no historic district, according to Stewart.
The court ruled preserving a small town’s character is a legitimate purpose but disagreed Islamorada had shown it had any small-town character to preserve.
The court ruled Islamorada’s ordinance was discriminatory and invalidated it.
Once formula businesses establish a foothold anywhere in a city, it becomes problematic to try to ban them, according to Stewart.
“Do the courts not let you wake up?” Commissioner Rick Hurst asked.
The commission directed Brisson to draft a blanket franchise business moratorium covering Holmes Beach at its Oct. 12 meeting.
Brisson did as requested with misgivings, he said, then decided it was time to stop pretending a blanket formula business ban would work for Holmes Beach.
“I have steadfastly tried to subtly persuade you that I could find little that would permit me to support limiting formula businesses in the Benderson Plaza area in the event of a legal challenge,” Brisson wrote in his recommendations.
The commission is on a deadline to finish this task.
A temporary moratorium on formula businesses was enacted in 2016, after two franchise stores began operating at the Anna Maria Island Centre on East Bay Drive in Holmes Beach, also known as Benderson Plaza.
The moratorium was later extended twice, the last time through Feb. 18, 2018, to allow more time to adopt a formal ordinance.
Brisson said he modeled his approach after the tactics Sanibel has used successfully over the past 40 years.
Brisson’s preferred proposal would divide the city into six business zones, each with differing levels of tolerance for formula businesses.
A zoned approach would allow more formula businesses in the plaza than in the downtown shopping zone and is more defensible legally in case of a lawsuit from a banned business, he said.
Holmes Beach Commission Chair Judy Titsworth said the city must do its best to negotiate the legal minefield.
“I think if we lay off Benderson Plaza and protect the other areas, we might be doing the best we can,” Titsworth said.
Todd Mathes, director of development for Benderson Development Co., has given Petruff notice Benderson will challenge the formula business ordinance if adopted.
Out of 173 commercial businesses in Holmes Beach, 20 are classified as formula businesses, excluding banks, gas stations, real estate offices, grocery stores, gas stations, legal and medical offices.
The commission will meet in regular session at 6 p.m. Tuesday, Jan. 9, at city hall, 5801 Marina Drive.
How Anna Maria banned
Anna Maria city commissioners took a stand Aug. 24 by enacting a moratorium on formula businesses. It has yet to be challenged in court.
Anna Maria first enacted a temporary formula retail moratorium in 2016 after chain stores Smoothie King and Dunkin’ Donuts/Baskin Robbins qualified for storefronts on East Bay Drive in Holmes Beach.
Holmes Beach adopted a temporary moratorium June 14, 2016, before Anna Maria, but is still struggling to enact a legally defensible permanent ordinance.
Anna Maria defined a formula retail business as one with three or more locations with a similar color scheme, trademark and merchandise. Formula retail establishments were targeted in order to preserve Anna Maria’s “old Florida” feel.
Businesses begun in Anna Maria are exempt, unless the owners seek more business licenses within the city.
Anna Maria extended the temporary moratorium twice in the past year before adopting a permanent ban.
The Bradenton Beach comprehensive plan prohibits “multi-unit business using a common brand name, i.e., franchise or chain-type stores.”