All that remains of a federal case brought against the city of Anna Maria by Shawn Kaleta is a First Amendment claim alleging the city retaliated against the developer for petitioning the city, making public comments and seeking redress on decisions about vacation rentals — at least, for now.
The lawsuit filed by Kaleta and his company, Beach to Bay Construction LLC, continues with one — instead of four — causes of action against the city of Anna Maria after a July 12 order from U.S. District Judge James D. Whittemore in Tampa.
In the order that begins, “Ignoring the rhetoric of the parties,” the judge dismissed Kaleta’s equal protection and state and federal due-process claims.
He granted Kaleta 14 days to amend his complaint.
Anna Maria city attorney Becky Vose called the order “wonderful.”
“I think it is a very well-reasoned order,” she said, adding she wasn’t surprised the judge allowed Kaleta’s First Amendment count.
At the early motion-to-dismiss stage, she said, the judge couldn’t weigh the causal relationship between Kaleta’s speech and the city’s acts.
“The city took certain actions — like the denial of the building permit. But those actions that the city took had nothing to do with his constitutionally protected speech. They were the result of other things — unrelated to his speech,” Vose said.
Kaleta and his company filed the suit in February, seeking declaratory and injunctive relief and more than $235,000 in damages.
Kaleta’s attorney, Louis Najmy of the Najmy Thompson law firm of Bradenton, acknowledged the judge wanted to clean up the complaint.
“Most notably, he left the most important count in,” Najmy said.
The “only win” for the city would’ve been if the judge had dismissed all counts, he said, adding that leaving the First Amendment count intact “makes it a total win for us.”
The court order summarized Kaleta’s complaint as focusing on five city actions that:
• Denied a building permit at 881 N. Shore Drive for exceeding a 40 percent lot-coverage ordinance, while allowing other builders to build homes over the limit.
• Required a chain-link fence around a Magnolia Avenue development and, after construction began, required drainage ditches. And though the plaintiffs agreed to perform the work, the city hired another contractor and billed the plaintiffs $16,000.
• Ordered power and water shut off at 9802 Gulf Drive, “offering shifting explanations” and then rescinding the acts.
• Revoked building permits and banned Kaleta from obtaining building permits without a public hearing.
• Filed a complaint with the Florida Department of Business and Professional Regulation claiming Kaleta performed work on construction projects without permits.
The three counts were dismissed without prejudice — meaning the claims can be brought again.
As to Kaleta’s equal protection count, it was dismissed because it lacked specificity. Additional facts comparing others similarly situated should be alleged, and if plaintiffs do this, “leave to amend will therefore be granted,” the order stated.
Regarding the substantive due process count, the court held such claims protect against legislative — not executive — governmental action. “Each of the acts alleged by the Plaintiffs are unquestionably executive in nature,” the judge wrote.
A “plausible” procedural due-process claim had not been stated, according to Whittemore’s order, because Kaleta and his company did not exhaust administrative appeals.
Najmy said Kaleta and his company are evaluating if and how to amend the complaint.
Barring settlement or another pretrial disposition, the parties have agreed to be ready for trial by Sept. 4, 2017.
A jury trial was requested by the plaintiffs.