Tag Archives: Law

Defendants fight Sunshine lawsuit decision

The team is gathering for the next challenge.

But this time it is down one player.

In a civil lawsuit that began in August 2017 and was decided July 19 in favor of Bradenton Beach and ex-Mayor Jack Clarke, Judge Edward Nicholas ruled that six former city board members violated Florida’s Government-in-the-Sunshine Law by discussing city matters at meetings of the now-defunct neighborhood organization Concerned Neighbors of Bradenton Beach, and through the exchange of emails, texts and phone calls.

Defendants Reed Mapes, Tjet Martin and Bill and Rose Vincent Sept. 5 joined defendant John Metz’s appeal to the Florida 2nd District Court of Appeal fighting the declaratory judgement.

Defendant Patty Shay opted not to join the other defendants in appealing the ruling.

Shay said Sept. 5 that she could not afford the costs associated with the appeal. Also, she is unsure of the grounds.

“The judge made his decision,” she said. “I don’t want to invest the time anymore. I’ll take my chances.”

Additionally, Shay said she had been willing to take the settlement twice offered by the city to the defendants to end the lawsuit, which required a collective admission of guilt and payment of $500 fee each. “I was willing to sign it and end it,” she said. “But we all had to sign it, even though we were not co-defendants.”

Martin said she is appealing because she is innocent.

“I didn’t do anything wrong,” she said. “I can’t live with this accusation hanging over my head. We need to at least try.”

As of Sept. 5, the city’s costs and fees for the suit exceed $400,000.

In June, Metz said his costs were nearly $200,000.

At a Sept. 5 city commission meeting, city attorney Ricinda Perry recommended attorney Steve Chase of Sarasota for the appeal, and offered to provide his rates to the commission.

The hearing for fees and costs, previously set for Oct. 4, was postponed to 2:30 p.m. Thursday, Nov. 7, at the Manatee County Judicial Center, 1051 Manatee Ave. W., Bradenton.

Parties in BB Sunshine lawsuit head to post-trial hearing

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People rise July 19 in preparation for the judge’s ruling at the conclusion of a trial pitting Bradenton Beach and ex-Mayor Jack Clarke against six former board members at the Manatee County Judicial Center, 1051 Manatee Ave. W., Bradenton. Islander File Photo: ChrisAnn Silver Esformes

The trial is over, the verdict is in. But there’s one more hearing to come.

At the conclusion of a trial July 15-19, 12th Judicial Circuit Judge Edward Nicholas ruled in favor of Bradenton Beach and ex-Mayor Jack Clarke, finding the defendants, six residents who served as volunteer city board members, violated Florida’s Government-in-the-Sunshine Law.

The next phase in the case of Bradenton Beach and Clarke versus the six citizens will focus on costs and fees.

Now it’s about the money.

A hearing for post-trial motions, including any requests for fees and costs, is set for 3 p.m. Friday, Oct. 4, at the Manatee County Judicial Center, 1051 Manatee Ave. W., Bradenton.

The ex-board members filed requests July 29 for documents detailing the city’s legal fees for the lawsuit, which, as of Aug. 6, totaled $326,306.08, not including outstanding invoices for the week of the trial.

The city and Clarke filed a similar request July 30, and also a motion for an award of attorneys’ fees and tax costs.

Clarke was absolved by the city from any costs or fees related to the lawsuit.

In July, the ex-board members said their combined costs for the lawsuit nearly matched the expenses of the city.

The suit, begun by Clarke and the joined by the city in August 2017, alleged Sunshine Law violations by former P&Z board members Reed Mapes, John Metz, Patty Shay and Bill Vincent, and former Scenic Waves Partnership Committee members Tjet Martin and Rose Vincent, all of whom were members of the now-defunct grass-roots group Concerned Neighbors of Bradenton Beach. Mapes has since moved to Bradenton.

Clarke and the city, represented by attorney Robert Watrous and paralegal Michael Barfield, alleged the board members violated the Sunshine Law by discussing city matters at CNOBB meetings and through emails, texts and phone calls.

At the conclusion of a trial, Nicholas ruled in favor of the city and Clarke, finding the six former board members violated the Sunshine Law.

The judge said there would be another hearing to determine sanctions, including costs and fees.

Barfield said Aug. 6 that the parties are in the process of selecting witnesses to testify to entitlements.

The expert witnesses will be attorneys — one for each side — who will have tasked with evaluating the invoices and determining a reasonable division of costs and fees, which the judge will take into account, according to Barfield.

Judge defers ruling in three Holmes Beach-Bert Harris cases

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12th Circuit Judge Charles Sniffin, left, holds an off-the-record discussion with attorneys for the city of Holmes Beach and attorneys for the property owners suing the city under the Bert J. Harris Jr. Private Property Rights Protection Act. Islander Photo: Kathy Prucnell

One court ruling was pushed down the road.

A 12th Circuit judge put his decision on hold after attorneys sparred over a consolidated pretrial motion in three Holmes Beach cases over the Bert J. Harris Jr. Private Property Rights Protection Act.

Representing three property owners, Aaron Thomas, of the Najmy Thompson law firm in Bradenton, argued July 30 the city of Holmes Beach “knew what it was getting into” when it failed to offer changes in the allowable uses or settlements for his clients’ claims.

Since 2016, more than 80 property owners invoked the Bert Harris law against Holmes Beach by filing claims at city hall, and 11 lawsuits — eight represented by the Najmy firm — sprung from the claims.

Thomas asked Judge Charles Sniffin to enter judgments finding the city liable under the act that allows landowners to seek the loss of fair market value due to unfair government actions.

Sniffin told Thomas he wasn’t denying his motion, but rather allowing the parties time for discovery and to append their arguments after depositions, inspections and other discovery.

“The case law is very clear that the court commits irreversible error if it grants summary judgment when discovery is outstanding,” Sniffin said.

He deferred ruling for 90 days.

Under the act, the city was required to respond to claimants within 150 days of the filings.

In response to each claim, the city sent a letter suggesting no settlement or compromise to the then-new 2015-16 rental laws, enacted by the city after residents complained of parking, noise, garbage and other quality-of-life issues.

Thomas argued his clients were eligible to recover under Bert Harris when the city enacted a May 1, 2016, regulatory scheme to enforce a Sept. 8, 2015, two-person per bedroom ordinance.

He also disputed the city’s defenses, including a statute of limitations running from the September 2015 enactment and appraisals, saying the judge could rule on such legal questions.

Thomas said his clients lost investment expectations, including:

  • Brian Wien rented his five-bedroom rental home at 111 81st St. to at least 12 occupants until the law restricted him to 10.
  • 307 66th LLC and Robert and Michelle Carl rented their six-bedroom units at 118 50th St. and 307 66th to at least 16 guests, respectively, until the law restricted them to no more than 12 guests.

Thomas argued the city inordinately burdened his clients for three-four years.

Jay Daigneault, the city’s attorney, argued back.

He called the plaintiffs’ motion premature due to “an undeveloped record,” saying the exchange of documents, depositions and inspections is incomplete.

Daigneault also argued the owners failed to make a formal denial.

He also pointed to the city’s two-person per bedroom restriction in the comprehensive plan.

Thomas countered the comp plan isn’t a local ordinance or regulation contemplated by Bert Harris.

As far as pre-suit requirements, Thomas said the plaintiffs should be able to invoke the “futility exception” based on takings, since the city had no means to grant a variance under its rental laws.

Addressing the not-yet-completed exchange of records, Thomas said many items sought by the city are not relevant, such as names of hundreds of renters, insurance policies and detailed financial information.

Daigneault argued a host of issues surround the owners’ claims, such as how the law was applied to the properties and the plaintiffs’ claims on bedrooms.

Daigneault estimated the parties would need four-six months to complete discovery.

After hearing the arguments, the judge singled out the issue of discovery and agreed to allow time for completion, “but not four-six months.”

Holmes Beach special magistrate issues rental violations

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Attorney Michael Connolly, Holmes Beach’s special magistrate, hears a code compliance case July 31 at city hall, 5801 Marina Drive.

Holmes Beach is cracking down on short-term rental violations.

At a July 31 code violation hearing, special magistrate Michael Connolly ruled that two rental properties with the same owner violated city codes by advertising and renting for a three-night minimum stay in a residential zone that limits rentals to a 30-night minimum stay.

Six of eight cases were continued to a hearing at 10 a.m. Wednesday, Sept. 11, at city hall, 5801 Marina Drive.

The two cases heard by Connolly were cited for two alleged violations each at two properties on 28th Street, both owned by Anthony Properties Inc. of Tampa.

Stacy Dorsey, executive assistant to Anthony Properties owner John Anthony, asked July 31 for a continuance because Anthony was on vacation through Aug. 5.

Connolly did not grant the request, saying the hearing notice was posted July 2, providing Anthony enough time to seek continuance for a case already continued several times.

JT Thomas, code compliance supervisor, testified that the properties violated regulations for the R1 zoning district, where property owners are limited to a 30-night minimum stay.

Thomas said he posted the notice of violation May 23 and presented photographs of different vehicles coming and going from the property every few days.

Additionally, Nate Brown, the code officer who monitors vacation rental advertising, said the property owner advertised a three-night minimum stay for both properties, including on Airbnb.com, VRBO.com and FlipKey.com.

He said the properties were flagged by the websites as possible violators. He then investigated by attempting to book three-night stays at both properties, which he accomplished online until July 31.

Thomas said, for the property owner to be compliant, he needs to change minimum stay for the properties to 30 nights, and he recommended a fine of $127.24 for administrative costs and $100-$250 per day, at the judge’s discretion, from the date of the notification until the properties are brought into compliance.

Dorsey asked if friends and family can stay at the properties for less than 30 nights.

Thomas said, “Yes, but in the last two weeks, it seems like they have had a lot of friends and family coming weekly.”

Connolly determined Anthony Properties Inc. was guilty of violations for illegal advertising and renting for an illegal minimum stay.

He said the violations must be corrected by Aug. 7 and ordered the violator to pay $127.24 in administrative costs for each property. And, if the violations are not corrected by Aug. 7, a $250 fine per day for each property would commence Aug. 8 and continue until the city determines the properties are in compliance.

Connolly suggested Thomas check advertisements Aug. 7-8, as well as attempt to book a shorter stay and visit the properties to see if there is evidence of short-term rentals. If there is such evidence, the properties would be brought back to the Sept. 11 special magistrate hearing to begin the fee imposition.

Holmes Beach residents look to restart noise dispute

The city of Holmes Beach is looking to head off another complaint about noise.

Holmes Beach filed a motion to dismiss Richard and Marjorie Motzers’ amended complaint and the Motzers’ attorney set up an Aug. 1 court date to hear the dispute.

Anthony Manganiello III, of Icard Merrill in Sarasota, filed the Motzers’ new complaint, alleging the city failed to prevent residents “from being effectively driven out of their quiet neighborhood by excessive noise emanating from an ever-increasing number of short-term rental properties.”

He argued Holmes Beach police should be ordered to perform non-discretionary, administrative portions of the ordinance.

Thomas Thanas, of the city’s law firm of Dye Harrison, argued against the new complaint saying, “The amended complaint alleges no new facts. The amended complaint cites to no new cases.”

He also said Manganiello’s new argument asks the court to “dissect the city’s noise control ordinance” and separate the discretionary functions from non-discretionary/administrative portions,” which “misses the whole point” of a prior court order.

Twelfth Circuit Judge Charles Sniffin dismissed a prior Motzer complaint March 14, ruling the judiciary cannot interfere with discretionary functions of other branches of government, including an officer’s power to enforce criminal laws or issue civil citations.

An April 1 order in the case clarified that the prior dismissal was “without prejudice,” allowing the Motzers to submit an amended complaint.

The Motzers live in a residential district zoned for duplexes in the 400 block of 56th Street in Holmes Beach, where short-term rental properties on Holmes Boulevard and 55th Street border their home.

The couple first sued the city in June 2018, asking the court to mandate that Holmes Beach and its police department enforce the city noise ordinance, which restricts noise to no more than 65 decibels before 10 p.m. and no more than 50 decibels between 10 p.m. and 7 a.m.

The city’s motion to dismiss the Motzers’ second complaint is set for 1:30 p.m. Aug. 1 at the Manatee County Judicial Center, 1051 Manatee Ave. W., Bradenton.

Florida legislative session ends, home rule threats fail

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The Florida Capitol Complex in Tallahassee. Anna Maria, Bradenton Beach and Holmes Beach hired lobbyists to protect their home-rule authority and officials expect to have to do the same in 2020. Islander File Photo: Bonner Joy

By Ryan Paice and ChrisAnn Silver Esformes
Islander Reporters

You could call it a dud.

Anna Maria Island officials breathed a collective sigh of relief with the end of the 2019 Florida legislative session.

Each of the three island cities lobbied to oppose two sets of bills seen as threats to home rule, including Senate Bill 824 and House Bill 987, as well as House Bill 1383 and Senate Bill 1720. The four bills failed by the time session ended May 4.

And Anna Maria and Bradenton Beach could receive funding from the state, if the cities’ requested budget items are signed by the governor.

Anna Maria requested $285,000 from the state toward the construction of the Anna Maria City Pier. Carter said the city requested funding to help make up for money promised but not delivered by the Federal Emergency Management Agency.

The city requested $1,829,903 from FEMA under the Robert T. Stafford Disaster Relief and Emergency Assistance Act for the new pier, but city commissioners voted in August 2018 to accept a $1,372,427.50 offer from FEMA.

The act provides a means for municipalities to request federal natural disaster assistance, including money for the repair, restoration or replacement of damaged facilities.

Anna Maria’s request was pending the governor’s approval as of May 9.

Three Bradenton Beach appropriations projects, totaling $5,694,248, also made the final cuts in the state legislative budget.

Pending the governor’s signature, the city will receive $500,000 for seagrass mitigation, $2,694,248 for flood prevention efforts and $2,000,000 for a transportation program.

Home rule, vacation rentals

HB 987 would have revised application requirements for vacation rental licensure, as well as require the Florida Division of Hotels and Restaurants of the Department of Business and Professional Regulation to post license information on its website.

Following approval from several subcommittees, the bill was placed on the calendar for consideration April 17, but died for lack of action May 3.

Anna Maria Commissioner Carol Carter said in a May 8 interview with The Islander that state Rep. Will Robinson, R-Bradenton, helped muster opposition to the bill, while state Sens. Joe Gruters, R-Sarasota, and Senate President Bill Galvano, R-Bradenton, opposed the companion legislation.

HB 987’s companion bill, SB 824, was filed by state Sen. Manny Diaz, R-Haileah, and referred to the Committee of Innovation, Industry and Technology in February, but was not considered during the committee’s March 26 meeting.

Diaz’ measure would have required vacation rental owners to apply for licensing through the Florida Department of Business and Professional Regulation Division of Hotels and Restaurants.

The bill died May 3 after its committee failed to consider the legislation at meetings March 26 and April 10.

“We’re lucky, but the Florida League of Cities people tell us that anti-home rule bills will be brought forward again in 2020, and we need to go on the offense, even early on, before the session starts,” Carter said. “So, we’re trying to come up with some strategies to be offensive players.

“It’s a tad frustrating (to deal with opposing the same efforts repeatedly) but we’re gathering more and more momentum,” Carter continued.

The other set of bills each of the island cities lobbied to oppose included HB 1383, which was filed by Grant and would have amended the Bert J. Harris Private

Property Rights Protection Act, which allows demands for compensation due to government regulations that diminish the value of private property.

HB 1383 would have required across the board application of any settlement reached on a Bert Harris claim that involves the issuance of a variance or exception to a regulation to all “similarly situated residential properties.”

However, “similarly situated” was not defined in the bill, which appeared to be granting the exception as the norm.

The bill also would have reduced the period for a government entity to respond to Bert Harris claims from 150 days to 90 days.

HB 1383 was placed on the calendar for consideration after passing through the Judiciary Committee April 16 on a 15-3 vote, but no further action was taken and it died May 3.

Its companion bill, SB 1720, which was filed by state Sen. Tom Lee, R-Thonotosassa, was referred to the Judiciary and Community Affairs committees, but was not considered for a vote at meetings April 1 and April 8, and died May 3.

“The fact that these bills were not passed is very good for the citizens of island cities like ours that are caught in a constant struggle for home rule,” Holmes Beach Commission Chair Jim Kihm said May 9. “We are the ones that deal with this every day and know what is best for our cities, not the legislators.”

BB again offers settlement in Sunshine lawsuit, citizens decline

The case of Bradenton Beach ex-Mayor Jack Clarke and the city versus six former board members is headed to trial mid-July.

But the city is looking to settle.

The lawsuit alleges the defendants violated Florida’s Government-in-the-Sunshine Law.

Defendant John Metz, a former planning and zoning board member, and the only defendant who has an attorney, filed four motions heard May 3 by Judge Edward Nicholas of the Manatee County 12th Judicial Circuit Court.

The motions were to compel completion of a deposition by city attorney Ricinda Perry to disqualify her as co-counsel in the lawsuit, to compel answers to interrogatories and for award of attorneys’ fees, as well as a motion for production of documents from the city.

“Mr. Metz filed four motions, all of which were denied. It is significant, we think, that the judge made a finding that at least two of the motions were not ‘well-taken and not even a close call,’” Michael Barfield, paralegal for Clarke and the city in the lawsuit, said May 4. “That determination by the judge has a legal consequence that Mr. Metz, as an attorney, certainly knows about.”

But Metz disagrees. He said that initially the plaintiffs denied more deposition time with Perry. Without the motion, the plaintiffs would not have granted the continuation of Perry’s deposition.

“The city only offered the additional three hours because we filed the motion,” Metz said. “So we did not lose everything. We achieved something; it was just a little harder than it should have been. What they are doing is stonewalling until after the work has been done and the money has been paid.”

Metz added that “none of this matters” when the case gets to trial.

“This is going to look totally different when it gets to trial,” Metz said.

Both sides have attempted to settle.

In March, the city made an offer that would have required the defendants — Metz, Reed Mapes, Tjet Martin, Patty Shay and Bill and Rose Vincent — to each pay fines of $500 and admit they violated the Sunshine Law during meetings of the grass-roots group Concerned Neighbors of Bradenton Beach, of which the defendants were members while also serving on volunteer city boards.

The defendants responded with an “offer to compromise,” to donate $10,000 to the Annie Silver Community Center and exclude any admission of guilt and the $500 per-person fine.

The offer was declined by the city.

Then, in April, the city came back with another offer — this time, the case would be closed without an admission of guilt from the defendants — if they pay the court costs incurred by taxpayers totaling more than $200,000 as of May 10.

“I can tell you that the combined attorneys’ fees for the defendants is in the same magnitude as the city,” Metz said. “So, you’re talking about six retired people, who just to maintain their innocence, have had to put out a significant amount of money. And, when this goes to trial, the costs will vastly increase.”

In light of rising costs for both sides, the city has encouraged the defendants to reconsider previous settlement offers.

According to Perry, both offers still stand, even though the city previously gave the defendants deadlines — since expired — to respond.

“By my calculation, Mr. Metz’s actions (May 3) wasted approximately $15,000 of attorney time and taxpayer funds, and three hours of court time in his ongoing feud to attack the city attorney and avoid responsibility for his actions,” Barfield said. “Notwithstanding, the city continues to urge the defendants to give due consideration to the favorable settlement offers made in this case.”

As of May 8, the defendants, who met privately to arrive at a collective decision, did not intend to accept either settlement agreement.

“When you change your offer from $500 to $200,000, now we know what it’s really about,” Metz said. “If they lose, they will also have to pay our attorney’s fees.

They stand to be out a great deal of money in this case. And we still have a long ways to go.”

Depositions canceled

Another one bites the dust.

The discovery in a lawsuit filed August 2017 by Bradenton Beach ex-Mayor Jack Clarke and the city of Bradenton Beach against six former city board members has involved multiple depositions, with more to come before a mid-July trial.

Defendant Rose Vincent and witness Michael Bazzy’s depositions, set for May 8, were canceled May 6 by the plaintiffs — the city and Clarke — apparently due to health issues.

This was the fourth consecutive cancelation by the plaintiffs of Rose Vincent’s deposition.

Defendant Tjet Martin, a former member of Scenic Waves, said she is frustrated with the plaintiff’s repeated cancellations. “They have accused us of slowing this down, but they have been the ones canceling,” Martin said May 8.

Two men head back to court for derelict vessels

Two vessel owners face more enforcement in Bradenton Beach.

Bradenton Beach Police Officer Eric Hill issued John Avery and Jeremy Thomas citations for derelict vessels March 26 and their cases are making their way through 12th Circuit Court.

State law prohibits any person to store, leave or abandon a vessel that is wrecked, junked or dismantled on state waters.

A year ago, 12th Circuit Judge Renee Inman found Avery guilty for failing to register a boat and leaving a derelict boat in Sarasota Bay south of the Historic Bridge Street Pier. Three months later, she found him in compliance.

In the latest case, BBPD alleges Avery’s 22-foot 1984 Tanzer sailboat has no lights and is taking on water. He was notified of $220 fine required by June 1, according to court records.

Thomas was cited for violating the derelict statute because his 30-foot 1977 cabin cruiser has no means of propulsion.

In a letter to the court, Thomas contested his March 26 citation, saying Hill gave him 30-plus tickets in 2017 and harasses him on the water and on the land.
Hill denies the allegations.

A 10 a.m. Wednesday, June 5, hearing is set in the Thomas case.

Holmes Beach resident takes aim at city for dock approval

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The owners of 606 Crestwood Lane on Key Royale in Holmes Beach claim a newly constructed dock and boatlifts at 604 Crestwood Lane infringe upon their riparian rights. Laurie and Robert Mock own the home on the left, including the white fence. Islander Photo: Courtesy Laurie Mock

A Holmes Beach resident is taking issue with the city over her neighbor’s dock.

But it appears the dispute will be decided in court or by the state, not the city.

In a Feb. 20 email to Mayor Judy Titsworth, Laurie Mock of Crestwood Lane said a dock built by her neighbor was improperly permitted and the boat and Jet Ski lifts encroach on her riparian rights.

Riparian rights are the interests of landowners that may attach to real property that connects to an adjacent body of water.

Mock wrote that a marine consultant looked at the property and said the dock, permitted by the city in November 2018, should not have been approved for construction.

She cited a section of the city code of ordinances that states, “No dock, wharf, pier, mooring piles, groins or other structures extending into or over waterways shall be erected or installed except upon issuance of a permit from the department of public works.”

Plans and permits from other agencies also must be obtained.

Additionally, she included a portion of the city land development code that states a dock and an access walkway must have a 25-foot setback from adjoining property lines — a requirement that Mock claims was ignored. She questioned in the email the qualifications of city staff to sign off on permits.

Holmes Beach Mayor Judy Titsworth responded Feb. 21 that she understands Mock has concerns with setbacks and work performed without a permit.

The mayor told Mock she would discuss the dock with the city planner.

Titsworth said she later spoke with Mock and suggested she speak with the dock owner prior to receipt of a March 18 email from Mock in which she asked Titsworth to provide a “determination in writing.”

Manatee County property records show the owners of 604 Crestwood Lane are Mary and Carmine Stella. The Islander was unable to reach them for comment.

Titsworth responded that day that she was not sure what Mock required since the final inspection occurred and the project is completed.

“Please, let us know once you hear from your riparian survey provider,” Titsworth wrote.

The mayor also inquired about whether Mock was able to talk to the neighbor about moving the lifts to the other side of their dock.

Titsworth asked to alert her of any determination by the Florida Department of Environmental Protection after its inspection and, she replied, yes, the building official — who resigned March 18 — was qualified to sign permits.

Mock wrote March 19 that Titsworth’s response was “very very concerning.” She questioned city planner Bill Brisson’s experience dealing with riparian rights and said she wants a determination in writing “of the improper approval of the dock and lift at 604 Crestwood Lane.”

Mock questioned the ability of city leaders to govern.

In a March 21 interview with The Islander, Titsworth said she told Mock the city’s jurisdiction stops at the seawall and riparian line dispute is with her neighbor.

“My thought is, why are we issuing the permit for Florida outstanding waterways?” Titsworth asked.

The mayor questioned whether the DEP exempted a permit in state waters.          She also noted that riparian lines can vary depending on the surveyor.

The underwater land could be state land or it could be deeded to the property owners.

Mock submitted a survey of the setbacks by Leo Mills and Associates to the city.

“They pay for their surveys and go to court and the judge makes the determination,” Titsworth said.

Titsworth said, in the meantime, she awaits the DEP dock inspection report.

Holmes Beach wins case of noise dispute with residents

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Richard and Marjorie Motzer watch the proceedings Jan. 24 from the courtroom gallery in the case they brought and lost against the city of Holmes Beach. Islander Photo: Kathy Prucnell

A judge issued a four-page opinion that turns down the noise and brings a win for the city.

Twelfth Circuit Judge Charles Sniffin issued the ruling March 14 following a January hearing on Holmes Beach’s motion to dismiss Richard and Marjorie Motzers’ complaint.

In ruling, the judge cited the constitutional separation of powers.

The Motzers live in the 400 block of 56th Street in Holmes Beach, where their residence is bordered by short-term rental properties on Holmes Boulevard and 55th Street.

Bothered by the noise from the properties and frustrated with a perceived lack of police enforcement, the couple sued the city in June 2018, asking the court to order the city and its police department to enforce its noise ordinance.

The ordinance restricts noise to no more than 65 decibels before 10 p.m. and 50 decibels between 10 p.m. and 7 a.m.

In their complaint, the Motzers alleged a
series of occasions during which law enforcement failed or declined to enforce the noise ordinance, saying police were improperly trained, came to subjective conclusions and also failed to properly measure sound.

Siding with the city, however, Sniffen ruled the judiciary cannot interfere with discretionary functions of other branches of government, including an officer’s power to enforce criminal laws or issue civil citations.

Attorneys Anthony J. Manganiello III of Icard Merrill of Sarasota, representing the Motzers, and Thomas Thanas, with the Dye firm in Bradenton, for the city, argued Jan. 24 before Sniffin.

The Motzers are analyzing their legal options, Manganiello wrote in March 21 email, but made no comment on the order.

Thanas referred comments to Holmes Beach Mayor Judy Titsworth, who said Sniffin’s order was fair and should end the case.

The mayor said she understood the Motzers wanting a quiet neighborhood, but added, “Daytime noise is hard. It’s kids swimming in pools, playing … and it’s just going to happen.”

As far as future complaints from the Motzers, Titsworth said the police will respond and issue a citation if there is a violation of the ordinance.

After Sniffin’s March order, the court docket showed the Motzers’ case closed.

In related but separate cases, the Motzers prevailed against the owners of the Holmes Boulevard and 55th Street properties, Jennifer and Shawn Kaleta, who initially claimed the Motzers were stalking their renters, causing losses to their businesses.

The Kaletas dropped the stalking counts and, on Aug. 30, 2018, the two cases — one for each rental property — were dismissed after the judge ruled the owners failed to allege facts to support a protectible business interest.