The gavel came down earlier than city attorney Becky Vose expected March 8.
The same day she filed a 37-page motion to dismiss, U.S. District Judge James Whittemore was quick to strike. The judge ruled the motion too long and requested a do-over within five days. So after cutting out the dead wood, Vose re-filed March 9 a 25-page amended motion to dismiss.
In the motion, she contends Kaleta and his company, Beach to Bay Construction LLC, fail to bring a proper case under the U.S. or state constitutions.
In a four-count complaint filed Feb. 12, Kaleta alleges federal violations of an equal protection clause and the First Amendment. He also makes federal and state due-process claims.
Attempting to dismiss Kaleta’s counts seeking declaratory and injunctive relief and damages, the city argues the court lacks subject matter jurisdiction and fails to state a claim for relief.
Vose summarized Kaleta’s five attacks against the city:
• Allowing other developers to build over the maximum permissible lot coverage, while preventing plaintiffs from doing so.
• Stalling plaintiffs’ development efforts on Magnolia Avenue.
• Shutting off power and issuing a red tag on plaintiff’s property without justification.
• Banning plaintiffs from obtaining building permits in the city.
• Filing a baseless complaint against Kaleta with the Florida Department of Business and Professional Regulation.
Specifically, Kaleta and his company voluntarily brought his plans into compliance and there was no appealable final order, Vose writes in the motion.
She argues the city’s building-permit related actions were not legislative in nature, didn’t rise to a federal or state constitutional rights issue and failed to allege a city custom or actions attributable to the commission.
The building official, mayor or other city officials — not the commission — had asked Kaleta and his company to erect a chain-link fence around a construction site, correct certain drainage issues and comply with the lot-coverage limits. The officials issued a red tag, resulting in a short-term power loss.
And certain comments were made by the mayor to a newspaper.
“These do not constitute a policy or custom, but are rather random acts or isolated incidents insufficient to establish a custom or policy,” Vose argues.
With respect to the DBPR claim, she claims the developer has the opportunity to defend against the allegations and, because DBPR complaints are kept confidential, it cannot harm the plaintiffs.
Regarding the building permit, the developer has no property right in its issuance, she adds.
Under the Florida due-process claim, she contends Kaleta and Beach to Bay failed to exhaust administrative remedies and state law does not recognize a cause of action for money damages.
Entering the case on March 11 is Clearwater attorney Jay Daigneault of Trask Daigneault.
He filed an appearance on behalf of the city of Anna Maria, joining the case with city attorney Becky Vose and her partner, Wade Vose, of the Vose Law Firm in Winterpark.
Mayor Dan Murphy said Daigneault has been assigned the case by the Florida League of Cities, the city’s insurance carrier.
A case management conference must be scheduled within 45 days after the Feb. 16 complaint service, according to court rules.