Tag Archives: Law

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.

Bradenton woman takes plea for Galati fraud

The time has come for a Bradenton woman to pay the piper.

Heather Jo O’Leary, 40, was ordered to repay $67,927.37 she skimmed from gift shop and fuel dock receipts in four years as an accounts payable/receivable clerk at Galati Yacht Sales.

The restitution was ordered as part of O’Leary’s sentence and plea deal March 20 at the Manatee County Judicial Center, one month after her arrest for a felony scheme to defraud.

Twelfth Circuit Court Judge Gilbert Smith Jr. accepted the plea and found O’Leary guilty, but withheld her conviction.

O’Leary’s sentence also includes 100 hours of public service work and a prohibition against acting as a bookkeeper or handling funds in an employment capacity without disclosing her criminal history.

Leading to O’Leary’s arrest, the Manatee County Sheriff’s Office conducted an investigation with a Galati representative who audited the business accounts in July 2018, after O’Leary resigned from the marina, 900 N. Bay Blvd., Anna Maria.

The MCSO probable cause affidavit states O’Leary “altered deposits with checks to cover cash shortages.”

Fran Galati said in a March 22 email she believed justice was served with O’Leary’s guilty plea and sentence because she must notify employers of her crime.

“She has done this to her employers in the past,” Galati added.

“Now all future employer will be aware of her character.”

Sarasota man sentenced to 13.5 years for fatal shooting

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The Center of Anna Maria Island honors the memory of Moriah Hope Goode with a portrait by Anna Maria artist Janet Kingman. The portrait hangs among plaques on a wall at the center, 407 Magnolia Ave., Anna Maria. Islander Photo: Kathy Prucnell

Anna Maria remembers Mariah Hope Goode.

A Sarasota man was sentenced Feb. 8 to 162 months in prison for fatally shooting Goode, who worked on Anna Maria Island as a youth counselor.

Devon Lee Freeman, 23, pleaded no contest to a reduced manslaughter charge in January and was sentenced this month in a Manatee County courtroom. He was in the Manatee County jail Feb. 14, awaiting placement in the Florida Department of Corrections.

Twelfth Circuit Judge Charles Sniffin meted out Freeman’s sentence and included an 821-day credit for time served.

The judge also ordered Freeman to attend a one-day anger management course and serve 18 months probation following his time in prison.

Freeman shot the 18-year-old Goode Nov. 6, 2016, in the 3300 block of Fourth Avenue East in Manatee County, when he unleashed 18 rounds from a handgun with extra capacity. One bullet that went through the front seat of the vehicle, where Goode sat as a passenger, struck her heart.

She was with her friend, Frank Brice, when he and Freeman began arguing.

After the shooting, Brice took Goode to the hospital, where doctors tried to save her.

Throughout the proceedings, Freeman’s attorney, Brett McIntosh, contended his client felt threatened by Brice. The defense attorney told The Islander Feb. 14 that Brice showed Freeman his gun and warned him not to move into the neighborhood.

However, according to Sniffin’s Dec. 21 order that denied Freeman’s stand-your-ground-immunity defense, there was no evidence Brice was carrying a firearm.

McIntosh said, “It was totally a tragedy. Like I said at the sentencing hearing, you have two good people involved in a tragedy. (Freeman’s) a good young man. And it was self-defense, but I didn’t convince the judge of that.”

McIntosh said Goode was an innocent bystander and testimony from Brice, the state’s only witness, about not possessing a gun was not credible.

“That investigators didn’t find a gun anywhere and that means there wasn’t a gun — you’re kidding me,” he added.

Goode’s family and friends supported a maximum sentence for Freeman on Facebook, in letters filed with the court and testimony at the sentencing hearing.

Freeman’s supporters asked the judge for leniency.

Assistant State Attorney Art Brown said he agreed to Freeman’s plea — reducing a second-degree murder charge carrying a life sentence to manslaughter, punishable by a 15-year maximum — because of a lack of credible witnesses.

“Two of the state’s witnesses were associates of the defendant and they could not be counted on for truthful testimony,” Brown said.

McIntosh said he “was pleased to have the second-degree murder charge reduced,” adding that a jury might have thought shooting 18 bullets was excessive and his client would then face the possibility of a life sentence.

At the hearing, the prosecutor recommended the maximum prison sentence for manslaughter, he said, because Freeman killed Goode and could have harmed others.

Four or five bullets went into three or four bedrooms in a neighbor’s home, Brown added, “where others easily could have been killed, as well.”

“I think the judge gave a fair and just sentence. It was most of what the state requested,” Brown said.

McIntosh said he recalled one or two bullets found at the home.

The defense attorney also said he’s planning to appeal Sniffin’s denial of his stand-your-ground motion, which if he wins, will turn around the judge’s sentencing decision.

Meanwhile, people who knew Goode are remembering her talents.

She lived in Holmes Beach and began participating in the teen program at the community center as a shy 12-year-old, according to Aris Thompson, communications manager at the Center of Anna Maria Island.

After the family moved off the island, Thompson said, Goode came back at age 17 and volunteered at the center as an after-school counselor.

“I have known Moriah Goode and her family for many years,” wrote Jacqueline Jordan, an Anna Maria Elementary teacher, in a letter to the court.

Jordan also recounted how Goode was respected at the center. She baby-sat, graduated early, had a bright future as an EMS/ambulance driver and was “a pillar of the community.”

“The kids absolutely loved her,” Thompson said.

“She was a good worker and dependable. She’d listen and observe a lot. She learned about the kids. That’s why she connected with the kids,” she said.

“If I’m having a tough day,” Thompson added, she looks back at a staff birthday card containing a message from Goode: “I’m happy I know you.”

She then remembers the joy Goode brought her and to other people.

“And I’ll think, life is good. I’m OK.”

KORN prevails over Bradenton Beach

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John Metz, left, and Reed Mapes, co-founders of Keep Our Residential Neighborhoods, a PAC in Bradenton Beach. Islander File Photo: ChrisAnn Silver Esformes

A judge has ruled in favor of the petitioners over city government.

In a final order filed Feb. 6, Judge Lon Arend of the Manatee County 12th Judicial Circuit Court determined four ballot initiatives proposed by a political action committee, Keep Our Residential Neighborhoods, must be submitted by the city of Bradenton Beach to the Manatee County Supervisor of Elections Office for verification for a future ballot.

If the SOE determines that 10 percent of Bradenton Beach electors signed KORN’s petitions in support of four ballot questions, the questions seeking changes to the charter will be placed on a ballot for either a special election or the next general election, per state statute.

The four charter questions include:

  • Prohibit the construction of a multilevel parking garage anywhere in the city;
  • Require city commission vacancies be filled by election;
  • Prevent construction within setbacks;
  • Install a certified public manager as chief executive officer of the city.

“Now Bradenton Beach has a ruling against them,” Korn co-founder John Metz said Feb. 8. “Now they specifically have been told by the courts what to do. This is the runway that will now be used for citizen-driven initiatives for years to come.”

Arend’s ruling is a response to a Sept. 6, 2018, writ of mandamus hearing.

The expedited hearing was requested by Metz and KORN co-founder Reed Mapes to direct the city to put KORN’s proposed charter amendments on a ballot.

KORN claimed they followed the state statute that provides, “the governing body of the municipality shall place the proposed amendment contained in the ordinance or petition to a vote of the electors.”

However, at a June 21, 2018, city meeting, the mayor and commissioners voted against placing KORN’s four charter amendments on the ballot. City attorney Ricinda Perry said the amendments would violate the city charter and did not fully comply with state law.

At the Sept. 6, 2018, hearing, Perry said the ballot language used by KORN on the petitions included political rhetoric and exceeded the state-mandated word limits for ballot summaries and titles.

KORN attorney Robert Hendrickson responded that according to case law, it is the city’s responsibility to generate the ballot language for the amendments and ensure compliance with state law.

Arend supported Hendrickson’s assertion and determined the city is responsible for providing ballot language before submitting the petitions to the SOE.

At a Feb. 7 city commission meeting, Perry shared the outcome of the judgment with commissioners and said the city had 30 days from the date of the order to appeal the decision. Otherwise, the city must provide the petitions to the SOE for voter verification.

The commissioners agreed to speak independently with Perry regarding the city’s options.

“The issue when you get right down to it is that Perry told the city commission that their city charter overruled state statute and obviously that’s not the case,” Mapes said Feb. 7. “They wasted thousands of dollars of my money and certainly thousands of dollars of taxpayers’ money because they are playing the game.”

As of Feb. 7, the lawsuit had cost the city $17,203.22.

Judge rules for DEP, but Cortez fish camp gets stay order

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Raymond “Junior” Guthrie Jr. sits with Karen Bell of Cortez-based A.P. Bell Fish Co. Feb. 5 before a hearing in the Manatee County courthouse. The Florida Department of Environmental Protection brought the case against Guthrie for his failure to remove a house on stilts he built without permits in Sarasota Bay. Islander Photo: Kathy Prucnell
The house built by Raymond Guthrie Jr. in 2017 sits beyond the A.P. Bell Fish Co. docks in Sarasota Bay Feb. 6.

Raymond Guthrie Jr. doesn’t need to dismantle and remove the stilt house he built in Sarasota Bay near the Cortez-based A.P. Bell Fish Co. or pay fines for ignoring a Florida Department of Environmental Protection order — at least not yet.

While 12th Circuit Judge Edward Nicholas entered a summary judgment Feb. 5 in favor of the DEP and against Guthrie, the judge also stayed its execution. The DEP will not be able to enforce the court order during the duration of the stay.

Nicholas called it an “indefinite stay,” declining to set an end date as requested by DEP assistant general counsel Marianna Sarkisyan.

In ruling on the summary judgment, Nicholas said his decision was based on a proper November 2017 DEP final order, as well as Guthrie’s failure to respond or request a hearing.

As for his decision to stay the judgment, the judge said: “It’s appropriate to stay the destructive provisions with regard to this structure and see how this other case plays out,” referring to a case filed by A.P. Bell in May 2018. Karen Bell, A.P. Bell’s president, claims the land under the stilt house belongs to her company.

In addition, the judge postponed enforcement of the penalties DEP imposed in the final order that require Guthrie to pay $6,500 in fines, costs and expenses.

Nicholas reasoned the postponement didn’t constitute “an unreasonable time period” because a trial date is set for April.

Joe Beasley, a Cape Coral attorney who introduced himself as representing A.P. Bell and not Guthrie, suggested the stay.

Sarkisyan conceded no harm would result from delayed enforcement but requested a 60-90-day limit that the judge rejected.

Guthrie built the 1,200-square-foot structure, including a metal roof, air conditioning and other amenities, between February 2017 and May 2017 without state permits.

Beasley told the court Guthrie “rebuilt” the structure within the footprint of prior net camps and said, under the state Butler Act, there is no need for a lease.

The Butler Act was repealed in the 1950s, but may be used to grandfather bulkheaded structures in submerged lands when an owner made an improvement before its repeal under certain conditions.

Sarkisyan objected to Beasley arguing the merits of the A.P. Bell case, which is also on Nicholas’ docket.

In the Bell case, the DEP maintained the Butler Act disclaimer is not applicable to the Guthrie structure situated 350 feet off the docks of A.P. Bell, unconnected to the shoreline.

Sarkisyan told the court she did not know Beasley would be in court since he failed to properly set his motion to intervene in the hearing.

Throughout the hearing, Nicholas noted his displeasure about A.P. Bell and Beasley not properly asking to intervene, but he allowed Beasley to present Bell’s concerns.

Beasley said Bell had a due process issue because the DEP didn’t include Bell in its administrative case against Guthrie.

Beasley told the judge Karen Bell recently asked state Sen. Bill Galvano, R-Bradenton, to sponsor legislation to allow net camps in Manatee County and, if enacted, he added, “The matter goes away.” Similar legislation permits such structures in Pasco, Charlotte and Lee counties, according to Beasley.

He called a court order requiring Guthrie to destroy the structure before the Bell case is resolved a “draconian remedy, even though we don’t know who owns the property.”

Guthrie also spoke to the court.

“I was born and raised in Cortez. My father had camps out there and his father had camps. This is the third time I’ve rebuilt this camp.

“Since I was a kid anyone who wanted to build a camp, just did.”

Commercial fishers used net camps to store gear and dry and mend nets in the late 1800s-1920s, after which they fell into disrepair with the advent of monofilament nets in 1938 and were destroyed by storms by the 1960s.

Beasley told the court the structure has historical value and is smaller than prior versions.

The DEP challenges Beasley’s size and historical claims in the Bell case.

In a defense to Bell’s complaint, the state contends the Guthrie structure was built in May 2017 and “occupies a footprint that is at least three times larger than any structure that may have previously existed at the site.”

Before issuing the final DEP order against Guthrie, the environmental agency sent investigators to the property, researched the site’s history and, in June 2017, determined the submerged lands were owned by the state.

The DEP sent several warnings to Guthrie seeking compliance and offered a consent order to resolve the matter, but he did not agree to its terms.

Settlement talks between the DEP and A.P. Bell are expected before the Bell case goes to trial, which is set for Monday, April 8, in Bradenton.