One tour company is set to continue operating in Holmes Beach despite a lawsuit against operations.
12th Circuit Judge D. Ryan Felix issued an order Aug. 19 to deny Irene and Roger Alvarez Jr.’s motion for a temporary injunction against Bradenton-based Fun Florida Tours LLC.
The Alvarezes, who own property at 201 N. Harbor Drive, Holmes Beach, filed a lawsuit against the tour company, seeking more than $50,000 in damages and an injunction to prohibit its tours from entering Sportsman Harbor.
The harbor is an inlet off Palma Sola Bay that runs up to the Alvarez property, where manatees can often be found relaxing in the water.
Fun Florida Tours offers guided kayak tours featuring lighted, transparent vessels for visibility into the water underneath. The tour times vary, including 8-11 p.m. tours.
The Alvarezes’ lawsuit alleges the tour company’s forays into Sportsman Harbor disturb manatees, constitute a private nuisance and put the property owner at risk of liability claims.
The complaint seeks damages from Fun Florida Tours for diminution of property value, increased insurance costs, as well as exposure to personal injury and property damage claims.
The property owners also moved for a temporary injunction to enjoin the tour company and its customers from entering Sportsman Harbor, lighting up kayaks, speaking in volumes above 60 decibels, as well as touching their dock and seawall.
Their motion relies on case law established in Roebuck v. Sills, a 2020 case heard in Florida’s 1st District Court of Appeals, to allege the kayak tours are a nuisance.
In that case, the court ruled in favor of Okaloosa County resident Julian Roebuck’s claim that his neighbor’s noisy pool pump and annoying exterior lighting constituted a nuisance.
However, Felix wrote in his Aug. 19 order that the reference was “inapposite” to their case since the focus of the court’s opinion in Roebuck v. Sills was on how the claimed nuisance disturbed Roebuck’s ability to sleep.
Felix pointed to the Alvarezes’ lack of credible testimony that the kayak tours disturbed their ability to sleep, as well as testimony from neighbors that the tours did not cause excessive noise or exorbitant lighting, as flaws in the connection.
“It is not lost upon the court that kayak tours led by FFT into the inlet are certainly an annoyance and inconvenience causing discomfort to Mr. and Mrs. Alvarez,” Felix wrote. “Nonetheless, Mr. and Mrs. Alvarez have simply not presented sufficient evidence to establish that tours led by FFT in the inlet are anything more than a mere annoyance, inconvenience, or discomfort.”
Felix wrote that, until the property owners presented evidence showing they were enduring “an appreciable, substantial, tangible injury resulting in actual, material, physical discomfort,” they have not shown a substantial likelihood of succeeding on the merits of their case.
Fun Florida Tours owner Carl Hatley Jr. celebrated the order in an Aug. 22 email to The Islander.
“This is nothing more than harassment from Mr. and Mrs. Alvarez with the goal to shut down my small business … using their money, lies and the court system,” he wrote. “We are happy with the judge’s ruling and look forward to the trial where we can spend the time to call witnesses and show the intentions of Roger and Irene Alvarez.”
The Islander was not able to reach the Alvarezes by press time this week.
There were no upcoming hearings scheduled for the case as of Aug. 29, according to the Manatee County Clerk of Circuit Court’s website, manateeclerk.com.
