Merriam-Webster dictionary defines a “sham” as a trick; cheap falseness; an imitation or counterfeit.
A sham pleading is a court paper presented in bad faith. Blatantly false.
An attorney for the state’s environmental regulator says A.P. Bell Company’s complaint — aiming to gain title to land beneath a stilted structure built in Sarasota Bay in 2017 — is a “sham.”
But the Cortez seafood processing company’s Coral Gables attorney Joseph Beasley told The Islander July 5: “I don’t think that is the case at all.”
Once the state “sees evidence” of an extension to a net camp dating back to the 1920s, Beasley said the DEP should grandfather what the agency has ordered dismantled and removed.
Two cases were filed in the 12th Circuit Court after Raymond Guthrie Jr. built the structure about 350 feet from Bell’s docks sometime February-May 2017 without permits or authorization from the Florida Department of Environmental Protection.
The DEP sued Guthrie in February for the court’s help in enforcing its regulatory order. Bell followed with a suit to gain title.
The “sham” characterization came in a June 27 answer and one of 10 defenses to the Bell lawsuit from the DEP and the board of trustees of the Internal Improvement Trust Fund, comprising Gov. Rick Scott and his cabinet — a group charged with overseeing state-owned land in trust for the citizens of Florida.
In the answer, Marianna Sarkisyan, attorney for the state board and DEP, wrote Bell’s complaint “knowingly misrepresents” the structure in dispute is the “original” and “historic Guthrie Fish Camp.”
The state’s answer also asks the court to strike the entire complaint, as well as 13 paragraphs of allegations.
With the answer, the state filed 10 defenses, rebuking Bell’s claims the structure existed at the site since the 1900s, calling them “inherently false.”
In a “sham pleading” defense, she added: “In fact, the unauthorized enclosed docking structure … was built in or around May 2017 by Raymond Guthrie Jr. At approximately 1,200 square feet, it occupies a footprint that is at least three times larger than any structure that may have previously existed at the site.”
In another defense, Sarkisyan told the court Guthrie’s structure is not eligible for a Butler Act disclaimer because: “First and foremost, the Butler Act applied only to lands that were continuously bulkheaded, filled in or permanently improved, from the riparian owner’s abutting upland property to the end of a channel.
“This case, however, involves a standalone structure that is not now, or was not at any relevant point in time, continuously connected to upland property.”
And being in the channel, the site would not be eligible for private ownership, she wrote.
The attorney for the state also filed a three-count civil counterclaim for trespass, ejectment and quiet title, asking the court to declare the submerged land in the channel south of the Cortez Bridge belongs to the state, award damages for trespass after notice and eject A.P. Bell and its agents from the property.
Guthrie and Tom Mora told The Islander in mid-May they built the house on stilts near the Bell docks.
Guthrie said he planned to conduct seagrass experiments there and Mora said the structure was built as a workshop.
Since the DEP-Guthrie dispute began, Guthrie’s representatives, including Joanne Semmer of Ostego Bay Foundation of Fort Myers Beach, have argued the DEP should issue a Butler Act disclaimer to grandfather the structure because there once was a net camp on the site.
In the state’s answer, defenses and counterclaim, the state points out the company has not applied nor has the DEP granted a disclaimer to any party.
Semmer is putting together the application with “a slew of old photos” and “affidavits from old timers,” evidencing the Guthrie net camp and a structure that stretches from A.P. Bell’s upland property — expected to be submitted to the DEP, Beasley said, “in the next week.”
Net camps, including storage sheds and floating, net-drying racks and boat docks were prevalent in the 1900s in Cortez. Used to dry or store cotton nets, they fell out of use with the advent of monofilament nets, and hurricanes later destroyed the remnants.
The DEP inspected the site in June 2017, wrote several letters and reached out two months later to Guthrie with a “consent order,” which did not guarantee him a disclaimer allowing the structure to remain. Guthrie did not execute the order.
In November 2017, the DEP issued a final order requiring Guthrie to remove the house and pay $6,500 in fines and additional assessments “not to exceed $10,000 per day.”
After Guthrie failed to comply, the DEP filed the suit asking a judge to enforce the regulatory order.
In the enforcement case, the two sides are litigating over A.P. Bell’s request to intervene in the DEP’s enforcement action.
With similar arguments as in the title case, Sarkisyan claimed the fish camps are not considered improvements under the Butler Act and, even if the structure were built on private land, Guthrie would have required a permit.
No hearing has been set in either case.
Judge Lon Arend is assigned to both cases.
Fish processor has beefs with DEP
Private use of state-owned submerged land in Sarasota Bay typically requires lease payments to the DEP.
But there’s an exception when the Florida Department of Environmental Protection issues Butler Act disclaimers.
The DEP granted A.P. Bell Fish Co. two such disclaimers for docks abutting its 4539 124th Street West property — in June 2004 for a 2,860-square-foot dock and, in February 2014 for three docks, totaling 9,868 square feet.
Nonetheless, according to Bell’s Coral Gables attorney Joseph Beasley July 5, the company and the DEP have “an issue of what is owed as far as rent” for land under the Bell-owned docks.
Beasley said his client is hoping to work out the Bell lease dispute as the company seeks a 12th Circuit decision for the submerged land under the house Guthrie-built house in Sarasota bay.
And, if Bell’s case is successful, Beasley said the DEP enforcement case will conclude because the DEP’s order is against Guthrie.
DEP spokeswoman Dee Ann Miller reported Bell is $46,035.90 in arrears on lease payments to the state.