Attorney: "Both Amendments should be a NO Vote"

Citizens for Sarasota County asked Susan Schoettle-Gumm, a former assistant County Attorney, to review the two items added by the Board of Sarasota County Commissioners to the November Ballot. Her answer:

"In my opinion, these two proposed charter amendments – individually and definitely in combination – would effectively block future citizen-initiated charter amendments in Sarasota County.  

If the amendments proposed for the November 2022 ballot are approved, Sarasota County would have the most stringent and difficult requirements in the state for citizen-initiated county charter amendment petitions.  

Both amendments should be a NO Vote."

Below is a comparison of Sarasota's Charter Amendment provisions with those of other counties in Florida:

Commissioner Al Maio

Sarasota County already has the shortest time period for collection of signatures among all charter counties in Florida (the 90-91 days from January 1 to April 1, with possible additional 30 days for signatures added to required number already submitted) and a high signature requirement.  Fifty-five percent (55%) of charter counties allow 180 days for signature collection (some with an additional 30 days if signatures are rejected) and some counties allow even longer time periods for collection.  Half of Florida’s charter counties require signatures from only 5% - 8% of registered electors. Only one charter county in the State currently imposes a substantive legal review of a petition prior to allowing it to be on the ballot (Orange County, which uses a board of 3 independent attorneys hired annually to make the determination).  If these 2022 proposed amendments had been in the Charter in 2018, the petition for single-member districts would have been rejected and never on the ballot.

Question 1 changes would apply only to citizen-initiated amendments and would require:  

A) the signatures of 10% of registered electors to be collected as 10% within each county commission district (rather than county-wide), and, 

B) after collection of 1% of required signatures and submittal to the County, the following are required: County review/approval of the form of the petition, County review/approval of the legal sufficiency of the petition (terms not defined), a fiscal impact analysis (terms not defined) by the County, and a presentation of the petition to the Charter Review Board, if it has a meeting during the relevant time period.

Comments:  This makes the high 10% signature requirement even more difficult as 10% within each commission district would be required.  So use of centralized petition collection points will be more difficult.  Less urbanized districts may be very difficult to efficiently obtain signatures. When the requirement of 10% signatures from each district is added to the already very short signature collection period, collection of the necessary signatures would be nearly impossible.  

• Review of petition format is widely required in other county charters but does not appear to be a significant problem – but it would depend on what requirements are included in the County ordinance proscribing the form.  
• Three charter counties currently require a fiscal/economic impact analysis, so this is not widely adopted.  
• Requiring a determination of “legal sufficiency” and that it be decided by the County is like having the fox guard the hen house when the hen house has no door.  

• The combination of the legal review and signature requirement by district are very damaging and unacceptable provisions.

Question 2 would add the requirement that any proposed amendment, whether proposed by the Charter Review Board, the County, or by citizen petition “shall not conflict with the Florida Constitution, general law, or the Charter.”  

Comments: Charter provisions, whether proposed or already adopted, must already not conflict with the Florida Constitution and general law.  So this change is really focused on prohibiting any major changes to the Charter.  Any proposed change that could not coexist with existing charter provisions would be prohibited.  And presumably the County would make this determination for citizen petitions as part of its “legal sufficiency” review under Question 1.  For example, if this provision had been in the County Charter in 2018, the question to change county commission elections from at-large to single-member districts would not have made it on the ballot.  Presumably, provisions in a new subject area, such as ethics, might not “conflict” with the Charter, but again, with the County making this determination, the fox guarding the hen house would be choosing which chickens might live or die.

I believe that the proposed amendments are terrible intrusions into the authority that remains with the citizens of Sarasota County under home rule.  

The County has not granted the power of amendment by petition to the citizens – rather the citizens have retained this power to themselves.  We cannot give up more of our power to the County.  In fact, we should consider a citizen petition to amend the Charter to allow the proposal, amendment and recission of ordinances by citizen initiative – as is authorized in at least 75% of Florida’s charter counties.  

I hope this information is helpful to you.  We need to get this out to the public in any and all ways possible. 

The message must be to Vote NO on the Sarasota County Charter Amendments.

Regressive Sarasota invites citizens to diminish their own Charter Amendment Power

Since We the People voted for Single Member Districts, the Board of Sarasota County Commissioners has tried and tried to repeal our vote.

• First, Al Maio said people voting for SMDs were confused. People showed up in droves to assure them that we knew precisely what we voted for.

• Then they held a special election to repeal our Charter Amendment, and again they were defeated.

• They kicked the issue to the Charter Review Board, which heard from dozens of citizens, and in the end told the Commission to take a hike.

• In the upcoming election they're trying to diminish citizen power to amend the Charter. Page 3 of your ballot has the nerve to invite you to vote to make it more difficult for private citizens to amend the Charter.

The Board's public policy is totally REGRESSIVE, and wants your help to continue. Send them a resounding NO on both County Charter Amendments (p. 3 of your ballot).

#singlememberdistrictvoting #ballot #charteramendments #progressive #regressive

Porter runs for Charter Review Board

 The Charter Review Board's plan to reduce our rights to actively participate in our Home Rule Sarasota County Charter went before the Board on Tuesday, and the Board unanimously voted to hold a Public Hearing, which is required before they can place their amendment on the ballot - an amendment that will make it harder for citizens to amend the Charter. The Board wasn't even going to discuss the CRB's plan until several citizens spoke up - Vic Rohe, Alexandra Coe, Mike Cosentino and more. 

The CRB has several open seats up for election this November, and a new candidate has declared that he's running. Ray Porter, who ran for CRB in 2016, has entered the race -- here's his statement:

Look Beyond the D

On Friday, June 10, I submitted my official paperwork to run once again for the Sarasota County Charter Review Board. Hopefully, this time the voters will look beyond the D after my last name and realize I support the issues over 60 percent of voters also support in this county.

For example, mandatory recycling (approved by the voters in November 1990); single-member district voting for county commission (approved by the voters in 2018 and reaffirmed in 2020); a vibrant, open and free exchange of ideas during Charter Review Board meetings (preserved so far, but always under attack); and reasonable, prudent controls on sprawling growth that endangers Sarasota County's fragile environment and the future livability and unique character of our special part of Florida (perhaps a lost cause).

The Charter Review Board has always served as the alternative method for citizens to circumvent the Sarasota County Commission when that board acts in lock step against the will of the majority of citizens. That's why the county commission over the past 50 years has repeatedly sought ways to block, undermine, discredit, belittle, devalue and ultimately eliminate the CRB. 

It's unfortunate that the Sarasota County Commission will not embrace the founding principle and stated goal of the CRB contained in the Charter - our county's establishing document - "On behalf of the citizens of Sarasota County, the Charter Review Board shall review and recommend changes to the County Charter for improvement of County government."

In other words - the citizens, all of us, are given the opportunity to make changes we feel will IMPROVE county government. For many on the current board, and previous boards, this concept was threatening, upsetting, annoying, and perhaps represents an affront and challenge to their ultimate power and control over the citizenry.

The preservation of the CRB is my primary goal for running once again, and even in defeat, if I can get this message out there once again - the importance of liberty, freedom and democracy in Sarasota County - then I've done all I can.

Ray is at Ray@Portersrule.com

We see them, they just think we don't.

You know, in some municipalities - the lovely city of Asheville, NC, for example - government agendas are published two weeks ahead of time, giving citizens a chance to go through them carefully, and circulate annotated comments with context and analysis for those who could be impacted by decisions their Board is contemplating.

In Sarasota County, Board agendas come out late on Friday afternoon for the following Tuesday. The agenda for tomorrow, June 7, is here, and it has 77 items. If Alexandra Coe, who is a member of the Charter Review Board, had not circulated an email today, many would not be aware of item #2, by which the Board can vote to hold a public hearing to make it more difficult for citizens to amend the county charter. 

Here is what Ms. Coe wrote:

Liberty has no party and if these amendments pass, there will be NO GOVERNMENT of, for and by the people in Sarasota County.

We need people at the Board of County Commission meeting at 1660 Ringling tomorrow morning at 8:45 to speak and fill the room. The agenda is attached. Please notify your groups.The Republican Liberty Caucus is presenting a resolution to postpone the hearing and asking for revisions to the amendments.

Short history...

A Special Committee was created in 2019, in response to the SMD amendment passing to make it more difficult to amend the Charter

On October 14, 2020, in the middle of a worldwide pandemic and without citizen input or consent, the Sarasota County Charter Review Board held a public hearing and approved two proposed amendments to ARTICLE VII, Section 7.1 of the Sarasota County Charter.

Popular Sovereignty is government based on consent of the people. The government’s source of authority is the people, and its power is not legitimate if it disregards the will of the people. These proposed amendments violate popular sovereignty.

Here's the thing - these amendments emerged from a backroom plot back in 2020. They arose in reaction to the fact that citizens of Sarasota had shocked the established syndicate by successfully changing our County Charter to Slngle Member District Voting. 

The Board tried every which way - including holding a costly special election last year - to reverse the will of the voters - but SMDs prevailed. Instead of developers buying official seats, actual candidates from Districts 2 and 4 will face the voters of their districts in this year's election.

The Charter Review Board has been working on this strategic sabotage of our amendment powers for more than TWO YEARS -- yet it's only slipped into the agenda now, for tomorrow, June 7, 2022. The Board will set a date - July 12, it seems - for a public hearing, then set a special election, so that citizens of Sarasota can vote to reduce their ability to amend their own County Charter.

Yep. Sneaky motions, sneaky agendas, Board machinations that try to keep citizens in the dark, out of the loop, and so confused that they'll vote against their own rights and interests.

Perhaps it's time for the adults in the room to let these children know we see them.

Citizens for District Power to Board: Don't Make CRB Undo Charter Amendment

 To the Sarasota County Commission:

The people of Sarasota County have spoken again—County residents support electing Commissioners by Single-Member District (SMD). 

In 2018, 60% of county voters in all five Districts and across party lines endorsed SMD.  Now, on the 2021 Sarasota County Citizen Survey, residents support SMD for a second time.  (See Sarasota News Leader article below this message.)

Single-Member Districts is an established method of representation.  

Nineteen FL counties elect Commissioners by SMD, including Collier, Broward, and Escambia. The FL Legislature and US House of Representatives are elected by SMD. Nancy Detert, who now sits on the Board of Sarasota County Commissioners, previously was elected to the State Legislature through Single Member District Voting. In that office she represented the interests of both her local district and of all residents of Florida.

SMD is in the Sarasota County Charter based on the 2018 voter mandate. SMD is not on a “trial run” and should not be under review or on a path to repeal. Three of five County Districts elected Commissioners by SMD last November. Two Districts (about 40% of county residents) will elect Commissioners by SMD in 2022.    

As a growing community, each District has unique issues.  Sarasota County should provide opportunities that promote public dialogue by holding District-level town hall meetings and offering other resources to facilitate communication.  

Please withdraw your request for the Charter Review Board to review SMD on October 20, 2021.

Please share the status of the CRB request for review of SMD.  

Citizens for District Power (CDP)

Bill Zoller

Pat Rounds

Tom Matrullo

Glenna Blomquist

Adrien Lucas

Susan Schoettle

==================================

Sarasota News Leader 

Plurality of county residents responding to 2021 Citizen Opinion Survey
expresses support for Single-Member Districts voting method for County Commission seats 

September 30, 2021 by Rachel Brown Hackney, Editor & Publisher 

Only 26% of respondents disagree with change 

This graphic shows the breakdown of responses to the survey question about Single-Member Districts. Image courtesy Sarasota County.

About 40% of the 1,250 respondents to Sarasota County’s 2021 Citizen Opinion Survey expressed support for the Single-Member Districts voting method that citizens approved during the November 2018 General Election, Joshua Scacco, a professor at the University of South Florida, told the County Commission this week.

Using a scale of 1 to 5, Scacco added, that meant the support reflected a score of about 3.3.

Only 26% of the respondents disagreed with the change, he said.

A team with the University of South Florida’s Institute of Government handles the survey each year. Its partner is HCP Associates of Tampa.

In May, Commissioner Nancy Detert stressed to County Administrator Jonathan Lewis that she wanted a question on the 2021 survey about Single-Member Districts. She and her colleagues over the past year have contended that the people who approved the Sarasota County Charter amendment in 2018 did not understand it.

That amendment restricts voters in a district to voting just for County Commission candidates who live in the same district. Previously, commission races were contested countywide.

During a Sept. 28 exchange with Scacco, at the conclusion of the presentation of the survey results, Detert alluded to two speakers who criticized the board members earlier that morning for requesting that the question be on the survey.

                            Joshua Scacco. Image courtesy University of South Florida

“Did anyone in the general public complain that you asked certain questions?” Detert asked Scacco.

A professional call center handles the actual survey after the USF/HCP team has developed the questions, he replied. “We would have to go back to the transcripts of that particular question to get an idea.” Scacco added, “I wouldn’t expect that there would be much there.” Nonetheless, he told Detert that he would make certain to include the information in a final report on the survey, which the team would deliver next month. (See the related article in this issue.)

Pat Rounds addresses the commissioners on Sept. 28. News Leader image

During the Open to the Public period for comments at the start of the Sept. 28 board meeting, Pat Rounds of Sarasota, a member of a group called Citizens for District Power, reminded the commissioners that 60% of the citizens who participated in the November 2018 referendum on Single-Member Districts approved it.

Rounds contended that the commissioners began “sowing seeds of doubt” about the voting system “immediately after the first three districts elected commissioners by Single-Member Districts [in November 2020].”

Rounds also pointed out, “One of you even likened Single-Member Districts to a question about septic tanks [also requested for inclusion in the 2021 survey], calling [the voting system] ‘sludge.’” Rounds was referencing a comment Detert made during the May discussion.

“The people of Sarasota County have now told you twice that they want direct representation and accountability for county commissioners,” Rounds continued. “Will you finally listen?”

Noting that they also had asked the county’s elected Charter Review Board members to undertake an analysis of the effects of Single-Member Districts, Rounds urged the commissioners, “Please stop any review of Single-Member Districts as a step on the path to justify a repeal effort. Each district should experience Single-Member Districts for at least a full term before any ‘review’ is even considered. Do you agree?”

As usual with Open to the Public comments, no commissioner engaged Rounds in discussion.

The second speaker, Tom Matrullo of Sarasota, also pointed to the commissioners’ comments about voters having been confused. “Your new survey resoundingly shows the opposite,” he said. “Sarasotans want and need Single-Member Districts voting.” He further referenced the fact that survey respondents in 2020 reported their top stressor was population growth and new development and that that remained the primary issue of concern this year.

“Around the county,” Matrullo continued, ”people are anxious, upset and even enraged at how oversized developments receive blanket approval despite the reasoned objections of those whose homes, neighborhoods and lifestyles are impacted.”

He added, “Development issues usually affect people within a single district.” He noted the controversy on Siesta Key regarding proposals for four hotel projects with room counts ranging from 100 to 170, for an example. “The mega hotels on Siesta Key have little direct impact on the people of Old Miakka,” Matrullo said, “and threats to the rural life of Old Miakka do not impinge on folks in Wellen Park.”

Old Miakka is located in the far eastern portion of the county; Wellen Park is near Venice.

A graphic shows the Old Miakka Planning Area, outlined in blue, as presented in a county neighborhood plan completed in 2006. Image courtesy Sarasota County

“The county currently has no satellite offices, online facilities or public town halls,” he stressed, through which the board members could engage the public in discussion about issues at the district level. “District dialogue must become a priority.”

After the presentation of the survey results, Commissioner Christian Ziegler proved to be the only board member who did voice continuing anger over Single-Member Districts.

“It’s going to be tough to change my mind on just how bad of a form of government that is,” Ziegler said. “I think people want to vote for all the commissioners. … But it’s tough to get that thought out, you know, in a survey … unless you have a conversation with people. This doesn’t change my mind on Single-Member Districts.”

We need a brand new Charter Review Board

 

Charter Review Board meeting Oct. 14, 2020

Agenda for Meeting

Complete video of meeting

Citizen Power at Fogartyville

This past Tuesday evening, Cathy Antunes spoke with Pat Rounds and Bill Zoller, both longtime advocates for sensible planning and for the public good. The topic was Single Member Voting Districts: how the new electoral structure put in place by a citizens' amendment will actually work in the 2020 election. 

Alice White District 5

Fredd Atkins

They also talked of pushback: The County immediately redistricted in order to remove potential opponents to sitting Commissioners Mike Moran and Nancy Detert, using a map fashioned by the invisible hand of Bob "Adam Smith" Waechter. 

And they noted that the County has also amended the Charter to make citizen amendments so difficult as to be essentially obsolete.

The video is here, with links to the entire evening's discussion. including a lively Q & A with those in the audience. 

Two candidates for the Board were also present: Alice White (People for Trees) is running in district 5, and Fredd Atkins, currently in district Limbo until a a federal lawsuit against the Board is resolved. This year's election holds the opportunity to change the course of Sarasota's public sector. Citizens for District Power is a new group working on getting out the vote. Have a look:

Rounds, Zoller, Antunes: Single Member Districts and Citizen Power

County says Cosentino Charter Amendments are unconstitutional and sues

Courtesy of the Sarasota News Leader

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County’s claim that two Charter amendments approved last fall are unconstitutional to proceed in court case

May 16, 2019 by Rachel Brown Hackney, Editor & Publisher

Reopen Beach Road and Siesta resident Mike Cosentino had sought dismissal of the county’s claim

Bollards installed in late January 2017 are at the ends of the vacated segment of North Beach Road. Signage makes plain that the public can access the road segment. File photo

Twelfth Judicial Circuit Court Judge Andrea McHugh has rebuffed an attempt by an attorney for a Siesta Key resident and nonprofit organization to force Sarasota County into dropping efforts to have two Sarasota County Charter amendments ruled unconstitutional.

Both amendments won voter approval during the Nov. 6, 2018 General Election. One calls for the county to rescind the County Commission’s split decision in May 2016 to vacate a 373-foot-long segment of North Beach Road and reacquire the public right of way. That amendment won support of 65.07% of the voters who cast ballots on it last fall. The other amendment calls for the preservation of county-owned parks, preserves, beach and water access, and waterfront vistas. That amendment won with 72.7% of voter support.

An attorney for Siesta resident Michael Cosentino and the nonprofit organization Cosentino founded in late June 2016 — Reopen Beach Road — had filed a motion seeking dismissal of the county’s claim that the Charter amendments are invalid because of their alleged contravention of state law. McHugh wrote in a May 10 order that a motion to dismiss a complaint tests whether that complaint is legally sufficient in stating a cause of action. Such a motion does “not determine ultimate issues of fact,” she added.

McHugh conducted an April 29 hearing on the arguments involving the Cosentino/Reopen Beach Road motion.

Representing Cosentino and Reopen Beach Road (RBR), Attorney Lee Robert Rohe of Big Pine Key filed the Motion to Dismiss on Oct. 25, 2018 in response to a crossclaim the county filed on Sept. 18, 2018. The county action was part of the original lawsuit Cosentino and Reopen Beach Road filed against the county in June 2016 to try to overturn the vacation of the portion of North Beach Road.

In its September 2018 action, Sarasota County first challenged the constitutionality of the two County Charter amendments.

Linda Valley. File photo

On Nov. 27, 2018, Cosentino and 14 of the supporters of the Reopen Beach Road initiative appeared before the county commissioners during an Open to the Public period, chastising then-County Attorney Stephen DeMarsh and his staff for filing motions in the 12th Judicial Circuit that challenged the amendments.

“There is nothing so sacred in our democratic society as the right to vote and have our vote counted,” one of the speakers, Linda Valley, told the commissioners. “And now you want to … disenfranchise every voter.”

Cosentino added, “To use our tax dollars to pay the county attorney to suppress our will as expressed through our vote is unconscionable. You literally are pouring poison on the very roots of our democracy. … Please stop fighting the will of the people. Reopen Beach Road and preserve our precious public lands.”

Responding to another speaker, Commissioner Nancy Detert said, “The voters voted. … We understand that. It’s a process; it doesn’t happen the very next day,” she added of implementing provisions of new Charter amendments. “We’re trying to go through the legal process in an orderly manner.”

Commissioners have complained about the vagueness of the language of the second amendment, especially. Early this year, it was the focus of their decision to postpone a vote on a petition seeking the county’s vacation of a portion of a road in Venice that has a view of a body of water.

In her May 10 order, McHugh wrote, “The [county’s] crossclaim adequately alleges a threat of immediate injury or intrusion on the executive/administrative authority of the Board of County Commissioners as provided by general law. The crossclaim further alleges that the provisions are void for vagueness.”

In a Nov. 7, 2018 filing in the original case over the road vacation, Assistant County Attorney David Pearce wrote that the Charter amendments “create an immediate injury by requiring the County to re-acquire Beach Road and by contravening the express authority granted to the Board by general law to sell or convey land, vacate roads, and to create an annual budget.”

McHugh further pointed out in her May 10 order, “The County is entitled to challenge the constitutionality of the charter provisions post-election.”

These are the Cosentino Charter amendments, as noted in materials provided to the County Commission on Aug. 29, 2018. Voters approved the language shown. Image courtesy Sarasota County

Rohe, the attorney for Cosentino/RBR, contended that the crossclaim was not viable because it arose out of issues in the original, 2016 lawsuit Cosentino filed. Moreover, the Motion to Dismiss argued that the previous judge in the case — Circuit Judge Frederick P. Mercurio — had found “there were no irregularities in the proposed amendment titles or ballot summaries”; thus, he allowed them to stay on the Nov. 6, 2018 ballot.

Finally, Rohe alleged that the crossclaim “is a strategic litigation against public participation” — a SLAPP suit, which Florida law prohibits.

In regard to that last argument, McHugh wrote in her May 10 order that the crossclaim did not seek to challenge the petition drive Cosentino and his supporters pursued to gain enough signatures of registered county voters to get the two proposed Charter amendments on the Nov. 6, 2018 ballot.

In response to a Sarasota News Leader request for comment, Cosentino wrote on May 14, “I am encouraged by and agree with the judge’s order. We look forward to moving away from legal posturing and toward proving the constitutionality of our two charter amendments that received the overwhelming support of Sarasota’s voters this past November.”

The Office of the County Attorney does not comment on pending litigation, county staff has told the News Leader.

Refuting claims during the hearing

Circuit Court Judge Andrea McHugh. Image from the 12th Judicial Circuit Court website

In her ruling, McHugh also pointed out that, during the April 29 hearing on the Motion to Dismiss, Rohe argued that the county “was not authorized to prosecute a lawsuit,” citing Section 86.091 of the Florida Statutes. Instead, Rohe asserted that only a person could file such a suit, and he indicated that if the statute permitted the county to file a suit, the county would have to “file the suit against every citizen of Sarasota County.”

“A plain reading of the statute contradicts both [Rohe’s] assertions,” McHugh wrote. The statute, she continued, “includes no language or limitation on who may bring suit. Second, the statute states that all persons with an interest which would be affected may[her emphasis] be made parties [to the complaint].”

She noted, “The word “may’ is permissive, and does not signify a requirement.” Additionally, she wrote, Cosentino and RBR “cite no authority for reading the statute in this manner, nor any appellate decision where a party challenging a charter amendment was required to sue every citizen in the county.”

Conversely, she pointed out, the county did cite a judicial precedent to bolster its arguments. That case involved a taxpayer who challenged a charter amendment after an election. The taxpayer did not name every citizen in the county as parties to the lawsuit, McHugh continued, “though presumably every citizen would be affected by the declaratory ruling.”

McHugh noted that that case was Charlotte v. Taylor, involving Charlotte County, and the judicial precedent she referenced was rendered by the Florida 2ndDistrict Court of Appeal in 1995.

Appeal involving part of original case still underway

As for Cosentino’s original complaint against the county: Last fall, after Judge Mercurio entered an order affirming that he had dismissed all of Cosentino’s claims against Sarasota County, Cosentino and Reopen Beach Road filed an appeal with the 2ndDistrict Court of Appeal in Lakeland.

This week, when the News Leader checked the online docket for that case, the latest notation was one the News Leader reported on last month. It showed that the court had given Cosentino until May 23 to file a reply to the county’s answer in the case.

Courtesy of the Sarasota News Leader

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Cosentino can join suit on Charter case

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County and plaintiffs in Charter amendments lawsuit agree Reopen Beach Road can be a party to the case

February 14, 2019 by Rachel Brown Hackney, Editor & Publisher

Reopen Beach Road objects to judge’s proposal to refer the case to a Circuit Court magistrate

The Silvertooth Judicial Center is located on Ringling Boulevard in downtown Sarasota. File photo

Siesta Key property owners who have challenged the legality of two Sarasota County Charter amendments and the Office of the County Attorney have agreed that the nonprofit organization Reopen Beach Road should be allowed to intervene in a 12th Judicial Circuit Court case focused on the amendments.

Siesta Key resident Michael Cosentino — who established the nonprofit Reopen Beach Road in June 2016 — wrote the two Charter amendments, both of which are related to a May 2016 County Commission vacation of part of North Beach Road. The amendments won voter approval on the Nov. 6, 2018 General Election ballot.

Attorney Ryan Reese of Moore, Bowman & Rix in Tampa, acting on behalf of plaintiff William H. Caflisch, and Assistant County Attorney David M. Pearce signed a stipulation that was filed with the Circuit Court on Feb. 6. It said that it was appropriate for Reopen Beach Road “to intervene in this matter …” They were joined in the stipulation by attorney Fred E. Moore of the Bradenton firm Blalock Walters, acting on behalf of Reopen Beach Road.

The stipulation indicated that the attorneys had prepared an order for Circuit Judge Maria Ruhl to review and then execute, allowing Reopen Beach Road to be a party to the case. However, no order from Ruhl had appeared in the docket as of this writing.

Ryan C. Reese. Photo from the Moore Bowman & Rix website

On Jan. 16, Reopen Beach Road had filed a motion, seeking to intervene in the case that Siesta property owners William and Sheila Caflisch initiated on Oct. 9, 2018. The Caflisches had sought to have the Sarasota County Charter amendments removed from the November 2018 ballot, but the court did not rule on the matter prior to the election. As a result, on Jan. 3, Caflisch attorney Reese filed a Motion for Judgment on the Pleadings, saying that the documents filed in the case “demonstrate no genuine dispute of material fact exists [between the Caflisches and Sarasota County].” Adding that the amendments “offend existing state law, in violation of [Florida Statute 125.01],” he wrote that the court should declare them “void ab initio,” meaning that the amendments were not valid from the time they were proposed.

Statute 125.01 requires county law to be consistent with state law.

A Jan. 30 hearing on that motion for judgment was cancelled.

In a filing in a related case, Assistant County Attorney Pearce wrote, “The constitutionality of the charter amendments is a real issue and not an academic one.”

In that document, Pearce pointed out that the county had challenged the Charter amendments “because they are inconsistent with general law and vague. … [They] interfere with the express authority granted to the [County Commission] to sell and convey property, vacate roads, and make budgetary decisions, as envisioned by [sections of the Florida Statutes]. The County has also alleged the charter amendments are vague because they outline no standard of conduct,” Pearce added.

That document was filed with the court on Nov. 7, 2018, the day after voters approved the amendments.

Reopen Beach Road arguments

In a supplemental memorandum of law filed with the Circuit Court on Jan. 28, Reopen Beach Road pointed out that it “was the sponsor and driving force” behind Charter Amendments 3.9 and 3.10.

This is Sarasota County Charter Section 3.9, which was approved on Nov. 6, 2018. Image courtesy of the Office of the Sarasota County Clerk of Court and County Comptroller

The former says the county must rescind the vacation of the 373-foot-long segment of North Beach Road that was approved on May 11, 2016, and then the county must re-acquire the right of way. The amendment also indicates the county should repair the road and keep it open to vehicular traffic.

Amendment 3.10 prohibits Sarasota County from vacating or selling any segment of road or right away abutting any area that could be considered to have a “waterfront vista.”In June 2016, Cosentino filed suit against the county, arguing that the County Commission had violated the county’s Comprehensive Plan in vacating the portion of North Beach Road. Although Circuit Court Judge Frederick Mercurio dismissed all the counts against Sarasota County, Cosentino has appealed the final dismissal to the Second District Court of Appeal in Lakeland.

Cosentino’s attorney in that case — Lee Robert Rohe of Big Pine Key — asked that the Appeal Court delay until March 22 the filing of his initial brief with the court. On Jan. 28, the Appeal Court ordered that the initial brief “shall be served within 30 days of the date of this order.”

Cosentino lost an earlier appeal of one of Mercurio’s rulings in favor of the county.

The Jan. 28 supplemental memorandum of law says Reopen Beach Road “was organized and incorporated … for the express purpose of promoting a citizen’s initiative petition drive for placement of the Charter Amendments on the Ballot.”

A county graphic shows facets of the area surrounding the North Beach Road vacation site. Image courtesy Sarasota County

It also points to “the County’s continuing alignment with the Plaintiffs (who are condominium developers) …” Further, it says, “It is not beyond the realm of possibility that the Plaintiffs and the County may enter into a settlement agreement, thus leaving [Reopen Beach Road] out in the cold.”

A Sarasota News Leader check of Sarasota County Property Appraiser Office records shows William H. Caflisch Sr. and Sheila S. Caflisch — the plaintiffs in the Charter amendment case — own several parcels on Siesta Key, including property at 77 Beach Road and 70 Avenida Veneccia, each of which is the site of a single-family house. They do own two vacant lots on Avenida Veneccia that are zoned for multi-family construction, according to the Property Appraiser’s Office.

The Caflisches were among the three sets of property owners who petitioned for the North Beach Road vacation in 2016, arguing that the segment had been closed to motor vehicles since 1993 because of repeated storm damage. Cosentino has contended the County Commission never should have approved the request because of the road segment’s value as public access to Siesta Beach. He cited a section of the county’s Comprehensive Plan in effect at that time to underscore his argument.

Objection to referral of case to a magistrate

Circuit Judge Maria Ruhl. Image from the 12th Judicial Circuit Court website

Circuit Court Judge Ruhl — who was elected to the bench in November 2018 — has taken over the case from Circuit Court Judge Mercurio. On Feb. 4, she issued an order, referring the matter to 12thJudicial Circuit Court Magistrate Deborah A. Bailey. That order called for Bailey to handle all discovery motions and all motions “directed to the pleadings.”

Bailey was authorized to conduct any hearings, which could include the “taking of evidence,” and then was directed to file a recommended order to Ruhl, “as soon as practicable.”

Nonetheless, the order pointed out, “A referral to a Magistrate requires the consent of all parties.”

On Jan. 31, S. William Moore, another attorney for the Caflisches, had a letter hand-delivered to Ruhl, the court docket shows. Moore wrote that he had conferred “with all counsel” regarding her proposed order of referral to the magistrate. Sarasota County had no objection, he added. However, “Counsel for proposed Intervenor Reopen Beach Road, Inc. … has notified us of its objection to the referral. It is therefore anticipated that a written objection may be filed, pursuant to the Court’s requirements.”

On Feb. 13, Cosentino’s attorney, Rohe, did file a notice of objection of the referral to the magistrate. Among Rohe’s arguments was the fact that part of Cosentino’s suit against the county is on appeal.

The notice added that Reopen Beach Road “believes that, in the interest of justice and to best serve the public, the Court must be directly involved in acquainting itself with the complexities of the case and ruling upon the First Amendment and election law issues arising from this case; instead of relying upon the ‘filter’ of recommended ruling(s).”