HOLMES BEACH – The West Manatee Fire Rescue District (WMFR) has prevailed in a lawsuit disputing its ability to assess commercial fees on vacation rentals.
Filed last year by Holmes Beach-based C&D Properties of AMI LLC against WMFR, the suit lists local realtor Lawrence (Larry) Chatt as its manager and owner. Twelfth Judicial Circuit Court Judge Edward Nicholas presided over the case.
The 2024 lawsuit complaint filed on Chatt’s behalf by attorney Keith Brady states that C&D Properties owns condo units 3 and 4 at 101 67th St.
According to the complaint, on May 16, 2023, the fire district passed Resolution 2023-01, a resolution that allows the district to assess vacation rentals at the commercial rate rather than the lower residential rate. The complaint says that on or about Oct. 9, 2023, the Manatee County Tax Appraiser assessed the two C&D properties on behalf of the fire district at the commercial rate.
According to the Manatee County Property Appraiser’s Office, the 2024 property tax-related TRIM notice for unit 3 included a $1,098 WMFR commercial rate assessment. The 2023 commercial rate assessment was $1,022. The 2023 and 2024 assessments were the same for unit 4. Levied at the residential rate, the 2022 WMFR assessments for units 3 and 4 were $462 each.
The complaint alleges that the fire district violated Florida Statute 509.032 by regulating vacation rentals.
“This assessment regulates vacation rentals by singling out vacation rentals as the only residential properties taxed at the commercial rate. No exemptions or exclusions excuse the F.D.’s (fire district’s) unlawful regulation of vacation rentals,” according to the lawsuit complaint that sought a declaratory judgment and injunctive relief from the WMFR assessments.
“C&D will be deprived of its right to be taxed in a lawful manner as guaranteed by the Florida Statutes if relief is not granted. C&D will suffer irreparable harm if the requested injunctive relief is not granted because its right to not be taxed in an unlawful manner will be violated,” according to the complaint.
“C&D Properties demands judgment against defendant granting relief as follows: A declaration that the West Manatee Fire and Rescue District cannot tax vacation rentals at the commercial rate because doing so violates the state preemption of the regulation of vacation rentals and therefore is invalid,” the complaint says.
The complaint sought permanent injunctive relief that would prohibit the fire district from taxing C&D Properties at the commercial rate. The complaint also sought a court order requiring the fire district to “effectuate the refund of wrongfully collected taxes from assessments to vacation rental owners.” C&D Properties also sought the reimbursement of attorney fees.
Judge’s ruling
In his May 22 written summary judgment, Judge Nicholas noted that the Florida Legislature enacted Chapter 2016-255 in 2016, which allowed assessment rates to be assessed in accordance with Florida Statute 191.009.
“In 2023, the fire district elected to take advantage of this legislative change by levying a commercial rate assessment on properties rented on such a frequent basis as to qualify as ‘transient public lodging establishments’ as defined under Florida law, even if they were zoned ‘residential’ by the local zoning jurisdiction. As a result of the change, property owner has been assessed the commercial rate for both of his condominium units as short-term vacation rentals,” Nicholas wrote.
Citing case law, he wrote, “Consequently, the district may now set rates based on the actual use of the property, in addition to the land use designation, when imposing assessments.”
Fire Marshal Rodney Kwiatkowski, Fire Inspector Josh Adkins and Lt. Fire Inspector Keith Miller inspected former Ohio firefighter Michael Wilcox’s multi-unit vacation rental in Holmes Beach on Aug. 21, 2023, making it the first short-term vacation rental inspected by WMFR. – Joe Hendricks | Sun
According to Nicholas’ summary judgment, “Fire District Resolution 2023-01 gives as cause for this change the ‘continual rise in the vacation rental industry’ as homeowners with properties within the district’s jurisdiction increasingly used their single-family zoned residential properties as vacation rentals; and the qualification of such rentals as ‘transient public lodging establishments,’ makes them subject to ‘increased life safety inspection, enforcement and response requirements’ under state law that are ‘not otherwise applicable to single-family zoned residential structures that are not used for short-term vacation rentals.’
“These regulations demand that the fire district devote greater resources to inspect, enforce and respond to calls for service at transient public lodging establishments, exacting a greater cost in time, personnel and expenditures; and as a result, the district resolved that the dedicated resources were ‘comparable to inspection, enforcement and response requirements for commercially zoned properties.’ ”
Nicholas noted the commercial assessment rate is also now applied to other residentially-zoned properties, including daycare centers and assisted living facilities.
In closing, Nicholas wrote, “The court finds that the fire district’s rate increase of its assessment imposed on residential properties used as transient public lodging establishments, which includes vacation rentals, is not a regulation that is preempted to the state. As there is no genuine dispute as to any material fact, the fire district is entitled to final summary judgment in its favor.”
The order also says, “For the reasons set forth above, West Manatee Fire and Rescue District’s motion for final summary judgment, as to both counts, is granted. C&D Properties of AMI LLC’s cross-motion for summary judgment is denied.”
On May 29, Nicholas issued a one-page final judgment that states, in part, “This is a final judgment on the merits as to all claims. Plaintiff shall recover nothing from defendant in this action.”
According to the Manatee County Clerk of the Circuit Court website, the non-prevailing party has 30 days to file an appeal to a higher court.
CORTEZ – Twelfth Judicial Circuit Court Judge Edward Nicholas denied motions to dissolve lis pendens claims last week that were filed against the owners of three properties located along the Hunters Point-owned canal in Cortez.
A lis pendens claim notifies potential buyers and others of a pending lawsuit involving a property and its owners. If someone purchases a property with a lis pendens attached, the new owner inherits the lawsuit responsibilities. A lis pendens can impact the ability to sell a property, obtain financing or obtain title insurance.
The lis pendens were filed as part of an ongoing lawsuit that attorney Susan Martin filed in June 2022 on behalf of Hunters Point developer Marshall Gobuty and his Cortez Road Investments and Finance (CRIF) ownership group. Gobuty and CRIF are currently developing the Hunters Point community that includes 86 solar-powered-homes and 49 proposed boat slips.
This illustration indicates where the Hunters Point homes and docks will be located. – CRIF | Submitted
The lawsuit names Jonathan and Sheila Graham, George and Wendy Kokolis, Mark Ibasfalean, Mary Norman, Timothy Fitzpatrick and Jacquelyn Shepard as defendants. The defendants’ properties are located across the canal from the Hunters Point property.
In May, Martin filed a lis pendens on the dock and boat lift associated with the property at 4305 126th St. W. owned by the Grahams; she filed another against the boat lift the Kokolis’ installed in the west end of the canal in 2022 by their vacant lot at 4319 126th St. W. In June, Martin filed a lis pendens on the dock and lift associated with Ibasfalean’s property at 4217 126th St. W.
A lis pendens claim was filed against George and Wendy Kokolis regarding their canal-side vacant lot, left, and a boat lift installed in 2022. – Joe Hendricks | Sun
In early October, Martin filed amended lis pendens that assert that CRIF also owns the canal bulkheads (seawalls) and 5.7 to 3.3 feet of the uplands landward of the bulkheads used by the Graham, Kokolis and Ibasfalean families.
The lawsuit alleges the defendants installed and maintain docks, lifts and other structures in the canal without authorization from the canal owner. Most of the docks and lifts were installed before Gobuty purchased the Hunters Point property and man-made canal in 2016. The lawsuit alleges the defendants’ docks and lifts extend more than 25% into the canal, which, if true, would violate Manatee County dock regulations. The defendants deny their docks and lifts extend more than 25% into the canal – or did when installed with county-issued permits.
A 2022 lawsuit alleges the Grahams’ boat lift and dock, on the left, extend too far into the canal. – Joe Hendricks | Sun
Other canal-side properties are not named in the lawsuit and Gobuty has repeatedly stated he doesn’t want to deny canal access to the defendants and other canal-side homeowners. He said he wants all boats and lifts located completely within the 25% threshold. He also wants dock owners to obtain proper liability insurance and enter into use agreements with CRIF.
Several docks and boat lifts are located on the canal, across from the Hunters Point property currently being developed. – Joe Hendricks | Sun
CRIF filed the lawsuit days after filing a civil lawsuit against MHC Cortez Village LLC, the owners of the Cortez Village Marina east of the Hunters Point property. That still-pending lawsuit seeks to prohibit marina clients from using the CRIF-owned portion of the canal that provides access to the Intracoastal Waterway.
CRIF filed that lawsuit in response to the marina owners’ 2021 challenge of the Southwest Florida Water Management District-issued permit that initially allowed the proposed Hunters Point docks. The marina owners alleged the docks would narrow the canal and significantly impact navigation for marina clients and others.
Taken from a Hunters Point dock, the photo indicates how much navigable space remains in the west end of the canal where docks exist on both sides. – Joe Hendricks | Sun
In May, the water district’s governing board issued a final order in support of an administrative law judge’s recommended order that states the new docks would not significantly impact navigation and should be allowed.
The marina owners appealed the final order and the dock construction remains on hold until the appeal is resolved.
In September, Martin filed the amended lawsuit complaint that asserts that CRIF also owns the bulkheads and portions of the upland properties along the canal.
Lis Pendens
Nicholas issued his ruling during a virtual hearing on Oct. 30 that pertained specifically to motions filed to dissolve the lis pendens.
Attorneys Ivan Reich and Steve Conteaguero represented CRIF. Attorney Richard Green represented the Kokolis’ and attorney Fred Moore represented the Grahams. The attorneys spent most of the hearing debating the merits and legality of the lis pendens claims. There was also discussion, but no ruling, on CRIF’s bulkhead and upland ownership claims.
“Cortez Road Investment and Finance is going after some landowners to bully them off a canal to make them remove boat structures, boat lifts and watercraft under the idea that the landowners must come to CRIF and get permission to utilize the canal,” Green said.
This sign affixed to the Graham’s dock and boat lift states they were legally permitted in 1994. – Joe Hendricks | Sun
Green doesn’t dispute CRIF’s right to file lis pendens on the canal and items placed in it, but he disputes the notion that the lis pendens can include the uplands that CRIF claims to own landward of the bulkhead the Kokolis’ use.
Moore agreed with Green’s assertions. He also said the lis pendens filed against the Grahams could cause substantial financial harm by impacting their ability to sell their home and property in a declining real estate market. Moore suggested that CRIF be required to secure a lis pendens bond that would protect the Grahams from a “wrongful lis pendens claim.”
Reich said property deeds and a recently completed land survey serve as duly-recorded instruments that support the lis pendens’ legality.
When discussing the Florida Statutes applicable to the historic use of someone else’s land, Reich said, “What is the dispute here? It’s a trespass action. You’ve come into our property and you’ve built stuff. It’s an ejectment action and we’re seeking to kick you off that portion of the property on which you’ve infringed. I think the defendants are trying to assert squatters’ rights. It doesn’t work that way anymore.”
When denying the motions to dissolve, Nicholas said, “While I’m sympathetic to the Grahams and the challenges that may result from the lis pendens, that’s largely the purpose – to not get into a circumstance where a third-party purchaser claims they weren’t aware of an issue of this nature. I reserve jurisdiction for determining what bond, if any, is appropriate. As to whether the lis pendens are appropriate, that’s not a particularly close call.”
BRADENTON BEACH – The city has prevailed in the appeal of a 2019 court ruling that six former city advisory board members violated Florida’s Government in the Sunshine Law.
On Oct. 14, a three-judge panel in the District Court of Appeal of Florida’s Second District (Second DCA) in Lakeland issued a written opinion that provided no details but affirmed 12th Judicial Circuit Court Judge Edward Nicholas’ 2019 ruling that the six defendants violated the Sunshine Law that requires elected and appointed city officials to conduct their official business in a public setting.
Paralegal Michael Barfield and Bradenton Beach City Attorney Ricinda Perry assisted attorney Robert Watrous with the legal work associated with the civil lawsuit that resulted in Nicholas’ 2019 ruling, and the subsequent ruling Nicholas issued later that year regarding the city’s recovery of attorney fees.
Barfield and Perry remained involved in the now-completed appellate process that did not require an additional in-person hearing or the re-arguing of the facts presented during the July 2019 trial.
When contacted by The Sun, Barfield and Perry both confirmed that the per curiam opinion issued by the Second DCA means the city prevailed in the appeal.
“I am pleased that the Second DCA upheld Judge Nicholas’ thoughtful and well-reasoned legal opinion,” Perry said. “I’m glad this part of the case is behind us and that Judge Nicholas’ ruling was vindicated,” Barfield said.
Case history
At the conclusion of the multi-day trial in July 2019 at the Manatee County Judicial Center in downtown Bradenton, Nicholas ruled that Reed Mapes, Tjet Martin, John Metz, Patty Shay, Bill Vincent and Rose Vincent violated the Sunshine Law in 2017 when discussing city business that could have foreseeably come before them in their official capacities as Planning and Zoning Board members or Scenic WAVES Committee members.
The Sunshine Law violations occurred during the non-city-affiliated Concerned Neighbors of Bradenton Beach (CNOBB) meetings that were recorded by CNOBB members. Those recordings were shared at the CNOBB website and later presented as evidence during the trial.
In August 2019, Mapes, Martin, Metz and the Vincents filed an appeal of Nicholas’ July ruling. Shay did not join the appeal filed with the Second DCA.
In October 2019, Nicholas ordered Mapes, Martin and Metz to pay the city $369,498 as reimbursement for a significant portion of the attorney fees the city incurred during the multi-year legal battle that remained ongoing at the time.
In that written order, Nicholas absolved Shay and the Vincents of any attorney fee-related financial liabilities because they had agreed in principle to settle with the city before the 2019 trial began. The city commission rejected those pre-trial settlement offers because similar agreements could not be reached with Mapes, Martin and Metz.
In November 2020, as the appeal process dragged on, Martin and Metz reached a settlement agreement with the city in which they agreed to collectively pay the city $350,000 and drop their appeals. Shay and the Vincents then reached settlement agreements in which they agreed to each pay the city $500, with Bill and Rose Vincent also dropping their appeals. The settlement agreements left Mapes as the only remaining appellant.
In May 2021, a final judgment was issued against Mapes in the amount of $19,760, to be paid to the city of Bradenton Beach.
At the time of his death earlier this year, Reed Mapes was the only remaining appellant in the city’s Sunshine Law case. – Joe Hendricks | Sun
Mapes passed away on April 13 of this year. On April 28, Watrous sent a letter to Mapes’ attorney and designated trustee, Robert Hendrickson, noting the amount due at that time, including accrued interest, was $20,563.
To date, the judgment against Mapes remains unpaid, but the city still hopes to recover the money owed.
“The city and its taxpayers have been entitled to recover the costs caused by Mr. Mapes and payment is long overdue,” Perry said when contacted regarding the Second DCA opinion.
ANNA MARIA – The city has filed a lawsuit against the owners of a vacation rental home whose guests received five noise ordinance violation citations in a nine-month period.
The vacation rental at 313 Magnolia Ave. is managed by Vacasa and owned by the Orlando-based Mangoes on Magnolia LLC that lists Mukesh Patel and three others with the same last name as the LLC’s principals.
The noise violations documented from June 2021 to March 2022 are in violation of the city code, according to the lawsuit.
During a code enforcement hearing on May 18, Special Magistrate Jerry Buhr declared the vacation rental to be a public nuisance. On May 26, the city commission authorized City Attorney Becky Vose to file a lawsuit seeking a one-year suspension of the LLC’s city-issued vacation rental license.
“The lawsuit was filed yesterday,” Mayor Dan Murphy said at the June 9 city commission meeting. “They’ve already assigned a judge to our case and we are moving forward with it. We are going to go to court looking for injunctive relief – looking for a one-year suspension of his ability to rent as a vacation rental. So fasten your seatbelts.”
The case has been assigned to Judge Edward Nicholas. – Joe Hendricks | SunJudge Edward Nicholas has been assigned to the case. In 2019, Nicholas ruled in favor of the city of Bradenton Beach in a Sunshine Law lawsuit that city filed against six former city advisory board members. He later ordered three of the defendants to pay the city $369,498 as partial reimbursement for the attorney fees the city incurred when prevailing in that case.
Lawsuit complaint
The lawsuit complaint was filed with the Circuit Court of the 12th Judicial Circuit in Manatee County on June 8, naming Mangoes on Magnolia LLC as the defendant.
The city seeks a court ruling that the rental property is a public nuisance and therefore can be prohibited from operating as a vacation rental for one year.
According to the complaint, “This is an action for injunctive relief, seeking to judicially declare the vacation rental property located at 313 Magnolia Avenue to be a public nuisance because of five egregious noise violations in the short period of nine months, and to close such public nuisance as a short-term rental for a period of one year. Such action is necessary to protect the public health, safety and welfare of the citizens of and visitors to the city of Anna Maria.”
The complaint cites city code regarding multiple noise violations: “Three or more violations occurring at the same premises within any rolling 12-month period shall be deemed prima facie evidence that the premises is a public nuisance and subject to being temporarily and/or permanently enjoined.”
According to the complaint, “The mere imposition of fines through the normal code enforcement process is not a sufficient mechanism to compel compliance with the Anna Maria code of ordinances, and the city of Anna Maria has no reasonable expectation of being able to abate the violation on the subject property now and into the future to prevent further violations which significantly negatively impact the quality of life of the affected residences in proximity to the subject property.”
BRADENTON BEACH – Circuit Court Judge Edward Nicholas has ordered Sunshine Law lawsuit defendant Reed Mapes to pay the city of Bradenton Beach $19,760.
According to the written ruling Nicholas issued on Friday, May 14, that amount represents $17,998 in attorney fees and $1,762 in interest fees. These are to be paid to the city as remaining reimbursement for the attorney fees the city incurred in its successful pursuit of a 2019 ruling from Nicholas that Mapes and five other city advisory board members violated the Florida Sunshine Law.
In July 2019, Nicolas ruled that Mapes and fellow planning and zoning board members John Metz, Patty Shay, Bill Vincent, and Scenic WAVES Committee members Tjet Martin and Rose Vincent, violated the Sunshine Law when discussing matters related to their official public business at a series of non-city-affiliated Concerned Neighbors of Bradenton Beach meetings in 2017.
“The Sunshine Law prohibits discussions of public business. Public business was discussed at every CNOBB meeting. Public business was discussed every time CNOBB met. That was largely the point of the organization,” Nicholas said when issuing his 2019 ruling.
“Do these individuals have a right to assemble? Absolutely. Do these individuals have a right to free speech? Absolutely. Do these individuals have a right to be concerned about their beloved city? Of course. But once you choose to become part of the government by becoming a member of a government advisory board you are no longer just a spectator. Rules apply, laws apply. The defendants simply did not follow those rules. The defendants simply did not follow those laws. This is not a close call,” Nicholas said.
In 2019, Judge Edward Nicholas ruled that Reed Mapes was one of six former advisory board members that violated the Sunshine Law. – Joe Hendricks | Sun
In October 2020, Nicholas ordered Mapes, John Metz, and Tjet Martin to collectively pay the city $369,498. Because of an argument set forth by Shay, Nicholas relieved Shay and the Vincents of that shared financial responsibility for the city’s legal fees. Nicholas reached that conclusion when he learned Shay and the Vincents reached settlement agreements with the city before the 2019 trial began. The city commission rejected those three settlement officers because Mapes, Martin and Metz had not also agreed to similar settlement offers that would have alleviated the need for a trial had all six defendants agreed to settle.
Metz and Martin later paid the city $350,000 and agreed to drop their appeals of Nicholas’ 2019 ruling. Shay and the Vincents then paid the city $500 each, and the Vincents agreed to drop their appeals. Shay was the only defendant who did not appeal the 2019 ruling
In his May 14 ruling regarding the remaining attorney fees sought by the city, Nicholas wrote, “Mapes was an especially active participant in the Sunshine Law violations committed by the members of Concerned Neighbors of Bradenton Beach in the summer of 2017, appeared eager throughout the litigation to force the city to prove its claims despite multiple audio recordings which documented the violations, and appeared to be disinclined to settle on the plaintiff’s terms.”
Attorney Robert Watrous represented the city in this legal matter, with significant assistance provided by paralegal Michael Barfield. City Attorney Ricinda Perry also assisted with this case.
BRADENTON BEACH – The city is seeking $31,645 in attorney fees, paralegal fees and legal costs from lawsuit defendant Reed Mapes.
Mapes is the only defendant who has not settled with the city in the 2017 Sunshine Law-related civil lawsuit in which the city prevailed.
In July 2019, 12th Judicial Circuit Court Judge Edward Nicholas ruled that Mapes and five other former city advisory board members violated Florida’s Government in the Sunshine Law by discussing official city business at their non-city-affiliated Concerned Neighbors of Bradenton Beach meetings in 2017.
The Sunshine Law requires members of the same elected or appointed governmental commission, committee or board to conduct their official business in properly noticed public meetings. It prohibits members of the same elected or appointed body from communicating with each other privately about their official business.
In October 2020, Nicholas ordered Mapes, Tjet Martin and John Metz to pay the city a total of $369,498 for the recovery of the city’s attorney and paralegal fees. When issuing that ruling, Nicholas relieved co-defendants Patricia Shay, Rose Vincent and Bill Vincent of those shared financial responsibilities after learning the three of them had agreed, before the trial began, to settle with the city for $500 each and an acknowledgement that Sunshine Law compliance errors were made.
The city commission then rejected those settlement offers because Mapes, Martin and Metz had not agreed to similar settlements which would have brought the case to an end before it went to trial.
In November, Martin and Metz reached a settlement agreement with the city that resulted in the pair paying the city $350,000 and dropping their appeals of Nicholas’ 2019 ruling. In separate actions, Shay and the Vincents agreed to pay the city $500 each, with the Vincents also agreeing to drop their appeals. Shay did not appeal Nicholas’ ruling.
Final hearing
On Monday, March 29, a virtual hearing on fees and costs was held via Zoom, with Nicholas presiding. Assisted by paralegal Michael Barfield, Robert Watrous again represented the city. Mapes represented himself at the hearing, which lasted slightly more than 30 minutes.
Watrous noted the amount sought is in accordance with statewide uniform guidelines for the taxation of costs and civil actions. Watrous said he would provide the court and Mapes with a cost summary and detailed supporting documents that verify all legal fees and costs billed to the city of Bradenton Beach through the conclusion of the 2019 civil lawsuit trial.
“Mr. Mapes is the only remaining defendant. We have settled with Mr. Metz. We have settled with Ms. Martin. The other defendants we have settled with also,” Watrous told the judge.
Watrous said the $350,000 payment made by Metz and Martin and the $1,500 received from Shay and the Vincents total $351,500, leaving a remaining deficiency of $17,998 in unrecovered attorney and paralegal fees.
“It’s our position that those would be the responsibility of Mr. Mapes because he is the only remaining defendant,” Watrous said.
Watrous and the city seek an additional $13,647 in legal costs that include court reporter fees, court reporter transcription fees, photocopying and other non-attorney, non-paralegal costs.
“It’s our position that Mr. Mapes be responsible for the costs,” Watrous said.
Nicholas then provided Mapes a chance to respond.
“I find it interesting that Mr. Metz and Tjet Martin paid $350,000 to end their issues. Then, after all of this time, Patty Shay and the Vincents settled for $500. I can’t quite figure out why I wasn’t offered the same. It seems somewhat odd to me that they settle with these three people that we know have very little funds. I have no funds. I’m a little bit befuddled about that and can’t quite figure out how they got such a good deal at the last minute,” said Mapes, who was dealing with health issues before and during the 2019 trial.
Mapes owns a home in Parrish which, according to the Manatee County Property Appraiser’s Office, has an appraised value of $501,732. In 2018, Mapes and his wife sold their Bradenton Beach condominium for slightly more than $1 million.
Regarding the rejected settlement offers that Shay and the Vincents signed before the trial began, Mapes said, “I didn’t sign the document that came out in 2019 because I knew good and well John Metz was not going to agree to it. I saw no reason to sign something I knew was not going to go anywhere, but all of a sudden it went someplace at the very end with Patricia Shay and the Vincents.”
12th Judicial Circuit Court Judge Edward Nicholas intends to issue his next ruling without conducting another hearing. – Joe Hendricks | Sun file photo
Nicholas did not ask Watrous to do a line-by-line review of the costs and fees sought, but he did ask Watrous to swear that the information contained in the summary of costs was true.
Nicholas directed Watrous to provide Mapes with copies of the cost summary and the supporting documents. He also ordered Watrous to file a sworn affidavit regarding the remaining $17,998 in attorney and paralegal fees sought.
“I’m not going to rule today with regard to this issue. I have to review the summary of costs in more detail now that it’s sworn to,” Nicholas said.
Nicholas gave Mapes until Friday, April 16 to file any objections he has regarding the fees and costs sought.
In closing, Nicholas said, “This case is almost at the finish line and I’m not inclined to have any more hearings. I don’t think that it’s necessary. I’m not likely to make any decisions prior to April 16.”
As of Sunday, April 11, Mapes had not yet filed any formal objections to the fees and costs sought.
Updated Nov. 29, 2020 – BRADENTON BEACH – The city has received a $350,000 settlement agreement payment from former Sunshine Law lawsuit defendants John Metz and Tjet Martin.
The city has also received $500 settlement payments from co-defendants Patty Shay, Bill Vincent and Rose Vincent.
On Thursday, Nov. 19, the city commission unanimously accepted the Metz-Martin settlement agreement previously discussed during a private shade meeting on Nov. 5.
The $350,000 payment serves as partial reimbursement for the more than $572,000 in attorney fees and legal costs the city incurred as a result of the civil lawsuit the city filed against six former city advisory board members in August 2017.
The lawsuit sought a judge’s ruling as to whether Martin, Metz, Reed Mapes, Shay and the Vincents violated the Sunshine Law when discussing advisory board matters at their Concerned Neighbors of Bradenton Beach meetings in 2017. Those meetings included a discussion about the potential pursuit of a citywide prohibition on the construction of parking garages.
In July 2019, 12th Judicial Circuit Court Judge Edward Nicholas ruled all six defendants violated the Sunshine Law that pertains to government transparency and conducting official public business only at properly noticed public meetings. Minus Shay, the other five defendants appealed Nicholas’ ruling to the 2nd District Court of Appeal in Lakeland.
On Oct. 28, Nicholas ordered Mapes, Martin and Metz to pay the city $369,498. In his written order, Nicholas absolved Shay and the Vincents of any attorney fee-related financial liabilities because they had agreed to settle with the city before the 2019 trial began. The city commission rejected those pre-trial settlement offers because similar agreements were not reached with Mapes, Martin and Metz.
Settlement acceptance
City Attorney Ricinda Perry presented the Martin and Metz settlement offer for commission acceptance during the Nov. 19 meeting. She also presented a new settlement agreement reached with Shay.
The commission accepted the Martin and Metz settlement agreement and received the transferred funds the following day.
Vice Mayor Jake Spooner praised Perry’s efforts.
“Great job. We did what we’re supposed to do with protecting the transparency of the government, and the taxpayers are being reimbursed,” he said.
“I agree totally, and we said that all along about open, fair and transparent government,” Mayor John Chappie said.
Co-defendant agreements
During the Nov. 19 meeting, Perry also presented the settlement agreement with Shay, in which Shay agreed to pay the city $500 despite the judge’s recent order absolving her of financial responsibility.
“It dismisses everything as it relates to her. She is not a party to the appeal,” Perry said.
“Defendant Shay acknowledges she had concerns about the application of the Sunshine Law as it relates to the meetings at issue in this case, and further acknowledges that errors were made as it relates to the Sunshine Law,” Perry said when reading aloud the settlement agreement language.
“That was a very important piece of information the city wanted to make sure was addressed. There was compensation provided for the error, but there was an admission that the Sunshine Law had not been complied with,” Perry said.
The commission unanimously approved Shay’s settlement agreement.
Perry said paralegal Michael Barfield expected a call later from the Vincents later that day regarding individual settlement agreements similar to Shay’s.
“I expect they will execute the same settlement agreement with the same admission that Ms. Shay did. The Vincents are part of the appeal. They would be obligated also to release us and terminate all proceedings in the underlying case,” Perry said.
The commission authorized Chappie to accept and execute the Vincents’ settlement agreements when received.
After the Nov. 19 meeting, Perry was asked about Mapes’ settlement status.
“The city commission has authorized me to make a settlement offer to Mr. Mapes. Communication will be made to Mr. Mapes following the execution of the settlement agreements with John Metz, Tjet Martin, Bill and Rose Vincent and Patty Shay,” Perry said.
When contacted last week, Barfield said the Vincents’ settlement agreements had been finalized.
As of Sunday, Mapes remained the lone defendant still appealing Nicholas’ 2019 ruling.
On Nov. 24, Mapes sent Perry an email saying he would agree to the same settlement terms reached with the Vincents.
“I will dismiss my appeal with prejudice. I will need a response to this by Monday, Nov. 30, so that my attorney has time to file the necessary appellate paperwork,” Mapes wrote in his email.
Mapes’ settlement offer has not yet been presented to the city commission, which meets again on Thursday, Dec. 3.
“It is the commission’s expectation to make the public whole and Reed’s offer fails to do so,” Perry said regarding Mapes’ offer.
“He will remain solely responsible for all future costs to fight the appeal, and for any costs upheld or awarded by the Second DCA,” she noted.
BRADENTON BEACH – Sunshine Law lawsuit defendants John Metz and Tjet Martin have agreed to pay the city of Bradenton Beach $350,000 as partial reimbursement for the attorney’s fees the city has incurred.
According to City Treasurer Shayne Thompson, the city has spent $572,321 to date on the civil lawsuit the city filed against Metz, Martin and four other former city advisory board members in 2017.
The lawsuit sought a judge’s ruling as to whether the six defendants violated the Florida Sunshine Law, which pertains to open government meetings and requires the discussion of official public business to be conducted in properly noticed public meetings.
When the Sunshine Law violations occurred, Reed Mapes, Metz, Patty Shay and Bill Vincent served as Planning and Zoning Board members. Martin and Rose Vincent served as Scenic WAVES Committee members.
In July of 2019, the city prevailed in the four-day trial which resulted in 12th Judicial Circuit Court Judge Edward Nicholas ruling that all six defendants repeatedly violated the Sunshine Law during their non-city-affiliated Concerned Neighbors of Bradenton Beach meetings in 2017.
Metz, Mapes, Martin, Rose Vincent and Bill Vincent then appealed that ruling, with Metz and his attorneys leading that process. As of Monday, those appeals remained pending in the 2nd District Court of Appeal in Lakeland. Shay did not appeal Nicholas’ 2019 ruling.
On Oct. 28, Nicholas issued a written order regarding the amount of attorney’s fees to be recovered by the city and which defendants shared responsibility for that payment.
“It is ordered and adjudged that the plaintiffs (the city) shall have and recover from the remaining defendants John Metz, Reed Mapes and Tjet Martin attorney’s fees in the amount of $369,498,” Nicholas stated in his order.
“It is hereby ordered and adjudged that the attorney’s fee award, as applied to defendants Patricia Shay, William Vincent and Rose Vincent is stricken,” Nicholas stated in his order.
Nicholas struck Shay and the Vincents’ financial liabilities after he learned earlier this year that they signed settlement agreements with the city shortly before the 2019 trial began. The commission then rejected those signed settlement agreements because Mapes, Martin and Metz did not express a similar willingness to settle.
Settlement offer accepted
The settlement agreement proposed by Metz and Martin was presented to the city commission during a shade meeting that took place Thursday evening, Nov. 5, inside the commission chambers.
John and Alice Metz attended the Nov. 5 shade meeting. – Joe Hendricks | Sun
Metz and his wife, Alice, attended the public portions of the shade meeting that preceded and followed the private discussion that included only City Attorney Ricinda Perry, the five city commission members and the court reporter/stenographer who will later produce a verbatim transcript of the private discussion that is protected by attorney-client privilege until the case is over. Martin did not attend the shade meeting.
During the public opening of the shade meeting, Perry said, “There has been some development in the case and I would like an opportunity to discuss those developments and seek the advice of the city commission.”
The public and Deputy Clerk Christine Watson were then asked to leave the room. Perry and the commission spent approximately 50 minutes engaged in private discussion before the public was allowed back inside city hall, now joined by lawsuit co-plaintiff Jack Clarke and his wife, Karen.
“I would like a motion to accept the settlement offer from John Metz and Tjet Martin in the amount of $350,000, and to direct the city attorney to prepare the necessary settlement document discussions with the appropriate counsel, and to prepare them for execution by the city,” Perry told the commission.
Commissioner Ralph Cole made the requested motion that passed by a 5-0 vote.
Perry then sought a second motion directing her to prepare a settlement offer to present to Mapes and to finalize settlement offers with Shay and the Vincents.
Perry did not disclose any additional details on the settlement offer made by Metz and Martin or the settlement offers pertaining to Mapes, Shay and the Vincents.
During public comment, Perry was asked what impact the settlement agreements would have on the appeals.
“It will have an impact on an appeal, but I cannot disclose what the impact will be,” Perry said.
As he left the commission chambers, Metz declined comment on the settlement offer.
When contacted Sunday, Perry said she was still unable to disclose any additional information regarding the settlement offers and the appeals process.
BRADENTON BEACH – Twelfth Judicial Circuit Court Judge Edward Nicholas has issued an order calling for Sunshine Law lawsuit defendants Reed Mapes, Tjet Martin and John Metz to potentially pay the city of Bradenton Beach at least $369,498 for attorney’s fees.
In the eight-page written order on the amount of fees and costs that Nicholas issued Wednesday morning, the judge relieved co-defendants Patty Shay, Bill Vincent and his wife, Rose Vincent, of any financial responsibilities regarding the city’s efforts to recover attorney fees and additional legal costs for the civil lawsuit the city filed in August 2017.
The lawsuit sought a judge’s ruling as to whether six former city advisory board members violated the Florida Sunshine Law, which pertains to open meetings and public records.
On July 19, 2019, Nicholas ruled that Mapes, Martin, Metz, Shay, Bill Vincent and Rose Vincent each violated the Florida Sunshine Law in the spring and early summer of 2017 when discussing public business at their non-city-affiliated Concerned Neighbors of Bradenton Beach (CNOBB) meetings. At the time the violations occurred, Mapes, Metz, Shay and Bill Vincent served as Planning and Zoning Board members. Martin and Rose Vincent served as Scenic WAVES Committee members.
“It is hereby ordered and adjudged that the attorney’s fee award, as applied to defendants Patricia Shay, William Vincent and Rose Vincent is stricken,” Nicholas stated in his most recent order.
Nicholas relieved Shay and the Vincents of their financial liabilities after learning earlier this year that they signed settlement agreements with the city shortly before the July 2019 trial began. The commission then rejected the settlement agreements initiated on the city’s behalf because Mapes, Martin and Metz had not expressed interest in entering into similar pre-trial settlement agreements.
From left, Reed Mapes, Patty Shay and Tjet Martin were among the six defendants in the 2017 lawsuit that resulted in Mapes and Martin and John Metz (not shown) being ordered to reimburse the city for attorney’s fees. – Joe Hendricks | Sun
“It is further ordered and adjudged that the plaintiffs (the city of Bradenton Beach) shall have and recover from the remaining defendants John Metz, Reed Mapes and Tjet Martin attorney’s fees in the amount of $369,498,” Nicholas stated in his order.
The order also addresses approximately $31,000 in additional non-attorney-related legal costs that include court reporter fees and filing fees also sought by the city.
“The court also reserves jurisdiction to resolve the issue regarding the city’s costs to determine if they too should be imposed upon defendants Metz, Mapes and Martin,” the order says.
“The court anticipates that one additional hearing will be necessary to resolve the outstanding issues of apportionment, joint and several liability and to again determine the amount of the costs and whether they should be awarded in addition to the attorney’s fees awarded herein,” the order says.
Nicholas’ ruling was the result of hearings that took place via Zoom video conferencing on June 10 and Aug. 13.
Pre-trial settlement offers
The fee recovery proceedings took an unanticipated turn during the June 10 hearing when Shay, representing herself as a pro se defendant, presented the argument that she should not be ordered to pay more than the $500 she agreed to pay in the settlement offer that Watrous and Barfield presented to her before the trial began.
Nicholas said he was not aware that Shay had agreed to settle with the city.
“Why should Ms. Shay bear the cost of a trial that she did not want to have?” Nicholas said on more than one occasion that day.
The Vincents then presented similar arguments regarding their rejected settlement agreements. Nicholas said he was not aware of the Vincents’ settlement offers either.
He learned that on June 28, 2019, the city commission rejected the three settlement agreements that acknowledged Sunshine Law compliance failures. He also learned that each of the three defendants provided the city with $500 settlement checks that were returned uncashed.
Representing the city, attorney Robert Watrous told Nicholas the city commission rejected those three settlement agreements because Mapes, Martin and Metz had not agreed to similar settlement agreements. Watrous said anything less than six settlement agreements would have still subjected the city and its taxpayers to the costs of a trial.
During the August hearing, Mapes, Martin and Metz’s attorney, Thomas Shults, claimed they never received the same pre-trial settlement offers presented to Shay and the Vincents.
Reactions to order
When contacted Wednesday morning, Shay commented on Nicholas’ order.
“I am grateful and so relieved. I’m just happy that it’s over. It’s been three tough years. As I stated in court, I was willing to settle this from the very beginning and on numerous occasions, when offers were made, I was willing to accept them. But as I said in the hearing on June 10th, I didn’t have the power or ability to convince the other pro se defendants to do that,” Shay said.
When contacted via email Wednesday afternoon and asked if he wished to comment on the ruling, Mapes said, “No.”
As of Wednesday evening, Martin, Metz, Shults and the Vincents had not responded to The Sun’s email requests for comment.
When contacted Wednesday afternoon, City Attorney Ricinda Perry said, “I am pleased with the detailed order from Judge Nicholas that serves to make the taxpayers whole and we look forward to obtaining a judgment to award the costs as well. The order clearly stands behind the transparency required of government so as to prevent the erosion of trust and integrity by those who serve the public. Government is called to serve the people; not the people who form the government.”
What next?
Sarasota-based paralegal and Sunshine Law expert Michael Barfield has been assisting the city with this case since its inception in 2017.
“It’s not over yet, but I think this is a significant victory that will go a long way towards making the city whole and healing its treasury,” Barfield said Wednesday afternoon in response to Nicholas’ order.
Barfield is now assisting attorney Mark Caramanica and Perry in the city’s defense of the appeals filed by five of the six defendants regarding Nicholas’ 2019 ruling that they violated the Sunshine Law – an appeal process Shay is not participating in.
From left, City Attorney Ricinda Perry, attorney Robert Watrous and paralegal Michael Barfield served as the city’s legal team during the 2019 trial and the attorney’s fees hearings that followed. – Joe Hendricks | Sun
According to Barfield, “The payment of $369,498 in attorney fees, and any additional legal costs ordered by Nicholas must be paid by the three defendants in full or by posting a bond. Only if the defendants prevail in the appeals process that is currently proceeding through the Second District Court of Appeal in Lakeland would the monies be returned.”
Regarding Nicholas’ latest order, Barfield said, “The order is not final yet in terms of it being subject to appeal. And there’s still some steps that need to be taken on the costs, as well as apportionment among the three defendants that Judge Nicholas saddled with the fees. When that happens, the city will then take the position that they (Mapes, Martin and Metz) need to obtain a supersedeas bond. If they lose the appeal, then there’s no further fighting. The city gets its money. That’s the position we’ll take and the city will insist that they post a supersedeas bond,” Barfield said.
According to the Colonial Bonds & Insurance website, “A supersedeas bond, also known as a defendant’s appeal bond, is a type of surety bond that a court requires from an appellant who wants to delay payment of a judgment until an appeal is over.”
Previous settlement offers
On Sept. 5, 2017 – less than one month after the city filed the civil lawsuit – attorney Jim Dye submitted to Watrous a settlement offer proposed on behalf of the five defendants he represented at the time: Mapes, Martin, Shay and the Vincents.
Dye’s letter noted the five defendants he represented had all resigned from their city board positions and were each willing to pay the city $100 toward the city and co-plaintiff Jack Clarke’s legal fees. That offer stated there would be no admission or denial of liability or fault regarding the alleged Sunshine Law violations. The city commission rejected that offer because it contained no acknowledgment of violating the Sunshine Law.
In March 2019, the defendants collectively rejected a settlement offer proposed by the city that requested each defendant pay the city $500 each, or $3,000 collectively, and the defendants collectively acknowledge errors were made regarding Sunshine Law compliance. The city’s settlement offer was contingent on all six defendants’ acceptance.
The defendants collectively rejected that offer and responded with a counteroffer that proposed they make a $10,000 donation to the Annie Silver Community Center and contained alternative language that said “errors may have occurred” rather than “errors did occur” regarding Sunshine Law compliance.
In April 2019, the city commission offered to accept a settlement offer that stated “errors may have occurred” if the defendants agreed to pay the city’s attorney’s fees and legal costs to date, which at that time totaled approximately $203,000.The defendants rejected that offer.
In late May of 2019, the defendants presented the city with individual settlement counteroffers that collectively sought a total of $60,902 in attorney fee reimbursements from the city and an additional $24,444 from Clarke.
John Metz is one of three defendants facing a possible shared financial obligation to the city of Bradenton Beach of more than $369,000. – Joe Hendricks | Sun
“It appears to be lost on the city commission and Mr. Clarke that they are exposed to substantial monetary liability in this case. This liability consists of not just the attorney’s fees and cost the city will expend for the trial and the appeals thereafter, but also the attorney’s fees and costs incurred by all defendants,” said the offer Shults prepared on Metz’s behalf.
“The open meetings law permits the award of attorney’s fees and costs against the city and Clarke if the court finds this suit was filed in bad faith or was frivolous. The city and Clarke can rest assured that Mr. Metz will pursue his right to such award if this matter is not resolved,” Metz’s offer said.
The city commission rejected all of those counteroffers and instructed the city’s legal team to continue preparing for the trial.
BRADENTON BEACH – The city of Bradenton Beach does not have to put four charter amendments proposed by the Keep Our Residential Neighborhoods (KORN) political action committee on an upcoming city ballot.
The ruling by 12th Judicial Circuit Court Judge Edward Nicholas was issued at the Thursday, March 5 hearing that was a continuation of a hearing that began in December.
KORN initiatives
KORN, founded in March 2018 by chairperson Reed Mapes and treasurer John Metz, collected petition signatures from Bradenton Beach voters in hopes of placing four charter amendment initiatives on the November 2018 ballot.
The first proposed charter initiative sought to place in the city charter a citywide prohibition on multi-level parking garages. The second sought the mandatory hiring of a city manager empowered to hire and fire city staff. The third sought to prohibit the construction of anything but fences, driveways and utility services in building setbacks, and to require that all stormwater management systems be contained in the setbacks. The fourth sought to prohibit vacant city commission seats from being filled by commission appointment.
After receiving the petition signatures, City Clerk Terri Sanclemente and City Attorney Ricinda Perry identified several deficiencies, including ballot language that exceeded the state-imposed word limits, ballot language that contained political rhetoric and an attempt to decide land use issues by voter referendum.
In June 2018, the city commission cited these deficiencies and refused to forward the petitions to Supervisor of Elections Mike Bennett’s office to verify whether at least 10% of the city’s registered voters signed each initiative.
The city commission also convened a charter review committee to review the KORN initiatives and recommend alternative charter amendments to propose to city voters.
On July 5, 2018, KORN filed a lawsuit against the city seeking a court order for the city to submit the petition signatures to the elections office and place any initiative that met the 10% threshold on a future ballot. This resulted in a hearing before 12th Judicial Circuit Court Judge Lon Arend in September 2018.
In November 2018, city voters adopted all seven charter amendments proposed by the charter review committee.
In February 2019, Arend issued a final judgment ordering the city to present the KORN petition signatures to the elections office and proceed accordingly.
In August 2019, Bennet’s office determined three of the four initiatives met the 10% threshold.
On Sept. 5, 2019, Bennett sent Sanclemente a letter informing her that none of KORN’s charter initiatives would appear on the November ballot because the ballot language did not comply with Florida Statutes.
Enforcement sought
On Sept. 13, 2019, KORN attorney Robert Hendrickson filed a motion seeking the enforcement of Arend’s final ruling. Arend had rotated to another division so the case was assigned to Nicholas.
Hendrickson’s motion was first argued on Dec. 6, with attorney Chuck Johnson representing the city. The December hearing included opening arguments from both attorneys and testimony from Perry, who was called as a witness.
The hearing continued on March 5 with Johnson still cross-examining Perry. Perry said the charter review committee amendments adopted by city voters essentially addressed the same issues as the KORN initiatives. Perry noted one KORN initiative included the word “cronyism” and she mentioned the excess word counts.
Perry said adoption of KORN’s third amendment could result in the city having to repay millions of dollars in grant money received for city stormwater improvements made on private property through easements granted by the property owners. She also said setback restrictions would prevent the construction of private docks.
City Engineer Lynn Burnett testified the city is contractually obligated to maintain for 20 years any stormwater improvements completed using Southwest Florida Water Management District (Swiftmud) grant money.
Burnett said the adoption of that amendment could result in the city having to repay Swiftmud more than $2.2 million for grant money received and could also jeopardize the $600,000 anticipated for pending stormwater improvements.
During closing arguments, Hendrickson alleged the city willfully violated Judge Arend’s order by replacing the KORN initiatives with the charter review committee amendments. Hendrickson said the city did not have the discretion to do something different than what Judge Arend ordered.
Hendrickson claimed the city violated Judge Arend’s order by including KORN’s original ballot language in the city resolution presented to the Supervisor of Elections for placement on the 2019 ballot. Hendrickson said the city knew the ballot questions would be rejected as written because of their deficiencies.
Johnson contended Arend’s order did not specify the exact ballot language to be presented to city voters. He also reiterated the Swiftmud funding implications.
Judge’s ruling
Before issuing his verbal ruling, Nicholas addressed the change in judges.
“There is an inherent challenge in one judge interpreting and potentially enforcing a colleague’s order. I’ll do my best here to interpret Judge Arend’s order and rule in a way that I think is consistent with his order and the law,” he said.
“It is clear to me that Judge Arend’s final judgment allowed for the likelihood of challenge and allowed for the likelihood of further litigation. I think Judge Arend fully anticipated there might be challenges to initiative number 3. Putting private property owners in charge of maintaining stormwater management systems on their own property would almost certainly have resulted in challenge and litigation,” Nicholas said.
“Do I think it would have been preferable for the city to have asked the court for guidance in their effort to implement his order? Yes, I do. However, I cannot say the city willfully and intentionally failed to comply with Judge Arend’s final judgment,” Nicholas said.
“Judge Arend did not definitively say what language specifically should be submitted to the Supervisor of Elections. Judge Arend recognized the city still bore a duty and a responsibility to make sure the ballot language complied with Section 101.161 in Florida law. This is important. The plaintiffs’ motion for enforcement of final judgment and for sanctions is denied,” Nicholas concluded.
BRADENTON BEACH – On behalf of the city of Bradenton Beach, attorney Robert Watrous has filed a motion seeking to impose sanctions on Sunshine Law lawsuit defendant Reed Mapes.
In July, Circuit Court Judge Edward Nicholas ruled Mapes, Tjet Martin, John Metz, Patty Shay, Bill Vincent and his wife Rose Vincent violated the Florida Sunshine Law in 2017. The Sunshine violations occurred when the then-city advisory board members repeatedly discussed advisory board business at their non-city-sanctioned Concerned Neighbors of Bradenton Beach meetings.
In November, Nicholas ruled the city was entitled to recover attorneys’ fees and costs from the defendants, but he did not issue a ruling at that time as to what the recovery amount would be. Nicholas later ordered the parties to participate in a mandatory mediation session and the parties agreed on Bonnie Marmor as their mediator.
The motion Watrous filed on Friday, Feb. 14. pertains to the court-ordered, closed-door mediation session that took place at the Manatee County Judicial Center in downtown Bradenton on Jan. 13.
The mediation session provided the defendants and the city an opportunity to broker a settlement as to how much the defendants were willing to reimburse the city for the attorney fees and costs the city and its taxpayers incurred in this case.
As of Tuesday, Feb. 18, the city had incurred $477,062 in attorneys’ fees and costs, according to City Treasurer Shayne Thompson.
Watrous’ written motion notes all parties who attended the Jan. 13 mediation session were advised by the mediator to keep the details of that session to themselves. And that any settlement offer proposed would have to be discussed with and either accepted or rejected by the Bradenton Beach City Commission.
Watrous’ motion cites Florida Statute 44.405, which says, “Except as provided in this section, all mediation communications shall be confidential. A mediation participant shall not disclose a mediation communication to a person other than another mediation participant or a participant’s counsel. A violation of this section may be remedied as provided by s. 44.406. If the mediation is court-ordered, a violation of this section may also subject the mediation participant to sanctions by the court, including, but not limited to, costs, attorney’s fees, and mediator’s fees.”
According to the motion, the mediator contacted Watrous on Jan. 14, the day after the mediation session, to facilitate communication of a new settlement offer. Watrous then communicated with Metz’s attorney, Thomas Shults, who in turn relayed mediation-related information to his client and the co-defendants who no longer retain the services of their own attorneys.
Watrous’ motion notes that on Jan. 28, the Bradenton Beach Commission held a closed-door shade meeting that provided city commissioners an opportunity to consider and respond to a settlement offer tendered by Shults.
“On January 29, a media article appeared in the Islander stating that ‘Reed Mapes, one of the six defendants alongside John Metz, Tjet Martin, Patty Shay, Bill Vincent and Rose Vincent, told the Islander that John Metz offered $200,000 to settle with the city after a Jan. 13 closed-door mediation session failed to result in an agreement,’” Watrous’ motion states.
Watrous’ motion states that on Feb. 10, he sent Shults the city’s written response to the settlement offer Shults tendered on Jan. 14. Watrous’s motion does not indicate what the city’s response was.
“At present, the defendants have not responded to that offer,” the motion states.
A fee award hearing has been scheduled before Judge Edward Nicholas on Wednesday, April 29. – Joe Hendricks | Sun
If the parties can’t reach a settlement on their own, Nicholas will eventually be asked to determine how much the defendants must reimburse the city and its taxpayers.
Barring a settlement, the parties are scheduled to see each other in court again on Wednesday, April 29, when they appear before Nicholas at 1:35 p.m. for a three-hour hearing pertaining to award/amount of attorney fees.
BRADENTON – Manatee County 12th Circuit Judge Edward Nicholas ruled Friday that former Planning and Zoning Board members Reed Mapes, John Metz, Patty Shay and Bill Vincent, and former Scenic WAVES Committee members Tjet Martin and Rose Vincent violated the Florida Sunshine Law.
The Sunshine Law violations occurred at Concerned Neighbors of Bradenton Beach (CNOBB) meetings in June, July and August of 2017.
The potential Sunshine Law violations were first reported by The Sun on Aug. 2, 2017.
The city of Bradenton Beach and co-plaintiff Jack Clarke filed the civil lawsuit on Aug. 11, 2017. The lawsuit sought a judge’s determination as to whether the advisory board members violated the Sunshine Law by discussing advisory board business at CNOBB meetings.
The non-jury trial took place at the Manatee County Judicial Center in downtown Bradenton and began on Monday, July 15. When the testimony and legal arguments concluded on Thursday, July 18, Nicholas said he’d issue his ruling Friday morning.
The defendants and defense attorneys awaited the judge’s ruling Friday morning. – Joe Hendricks | Sun
Attorney Robert Watrous represented the city and Clarke in the case, assisted by paralegal Michael Barfield and City Attorney Ricinda Perry.
Attorneys Thomas Shults and Jodi Ruberg represented Metz – and to a lesser degree the five pro se defendants who previously discontinued the services of their shared attorney.
“I am hoping to some extent the conclusion of this trial may help close the wound that has been so open and so raw out in Bradenton Beach for so long,” Nicholas said before issuing his ruling.
Judge’s ruling
When issuing his detailed ruling, Nicholas first cited the Florida Constitution and the Sunshine Law contained within it.
“We begin with Article 1, Section 24 of the Florida Constitution that reads: ‘All meetings of any collegial body of the executive branch of the state government, or of any collegial body of any county, municipality, school district or special district at which official acts are to be taken, or at which public business of such body is to be transacted or discussed shall be open and noticed to the public,’” Nicholas said.
Judge Edward Nicholas ruled all six former advisory board members violated the Florida Sunshine Law. – Joe Hendricks | Sun
Nicholas noted the defendants were all duly sworn advisory board members who acknowledged participating in Sunshine Law training.
During the trial, Watrous established that each defendant took an oath of office as an advisory board member and swore to protect the United States Constitution and the Florida Constitution. Watrous said those oaths followed the advisory board members wherever they went, including CNOBB meetings.
“The Sunshine Law prohibits discussions of public business. Public business was discussed at every CNOBB meeting.” – Edward Nicholas, Manatee County 12th Circuit Court Judge
In their testimony and/or pre-trial depositions, Metz, Mapes, Shay and Bill Vincent expressed their beliefs that CNOBB’s parking garage discussions did not violate the Sunshine Law because the city’s comprehensive plan prohibited parking garages and it was not reasonably foreseeable that one could ever be built.
Nicholas noted City Planner Alan Garrett testified the comp plan only prohibited parking garages in two of the city’s 11 zone district designations in 2017.
“A parking garage could theoretically be built in nine designated areas within the city,” Nicholas said of the comp plan as it existed in 2017.
Compliance concerns
Nicholas noted Perry sent an email to the Planning and Zoning board members on July 25, 2017, notifying them of the potential Sunshine Law implications of their CNOBB meetings and email exchanges.
Nicholas noted Perry also emailed then-Mayor Bill Shearon two days later, and Shearon forwarded that email to the planning board members. That email also expressed concerns about advisory board members attending CNOBB meetings in violation of the Sunshine Law.
City Attorney Ricinda Perry, paralegal Michael Barfield and attorney Robert Watrous successfully presented the city’s case.
The trial included extensive discussion about the 2017 correspondence Bill Vincent had with the Florida Commission on Ethics and the Florida Office of the Attorney General regarding advisory board members participating in CNOBB meetings.
The Commission on Ethics response advised Vincent to review the Sunshine Law manual at the Attorney General’s website and possibly consult with private counsel. The Attorney General Office’s response advised Vincent to consult with the city attorney.
“The defendants never got answers to those questions. The defendants continued to meet despite their concerns, despite not getting answers to these very important questions. Had they contacted Ricinda Perry, she would have answered: ‘Yes, the Sunshine Law applies.’ Had they contacted any attorney in the state of Florida they would have said, ‘Yes, the Sunshine Law applies,’ ” Nicholas said.
Constitutional rights
During the trial, Shults, Metz, Mapes and Vincent expressed their opinions that state law allowed the advisory board members to discuss city issues that pertained to the possible pursuit of citizens’ initiatives.
Attorney Thomas Shults, left, was unsuccessful in his defense of John Metz and the five pro se defendants. – Joe Hendricks | Sun
“The defendants attempt to characterize these violative meetings as ballot initiative meetings pursuant to Section 166.031 (Florida Statute) is simply not persuasive. This ballot initiative defense strikes this court as an after-the-fact attempt to justify or otherwise rationalize what were otherwise clear and unequivocal violations of the Sunshine Law. It is a clever explanation for such violations, but it is not a compelling or persuasive one,” Nicholas said.
“The efforts to characterize their violative meetings as the right to assemble and speak freely as guaranteed by the First Amendment also is not persuasive. Every citizen has the right to assemble and has the right to free speech. However, when an individual joins a government advisory board the Sunshine Law still applies. If that were not the case, every county commission, every city council, every advisory board could hold secret meetings and simply say I have a First Amendment right to do so. That would largely make the Sunshine Law meaningless and void,” Nicholas said.
Meeting recordings
During the trial, Nicholas heard audio recordings of entire CNOBB meetings and audio excerpts from CNOBB meetings.
“It’s certainly unusual that we have tapes of at least some of the meetings that took place outside of the Sunshine,” Nicholas said.
He then recited some of the statements made at CNOBB meetings:
“I have concerns about how the CRA (Community Redevelopment Agency) is functioning;”
“We need to prohibit the construction of a parking garage in the city of Bradenton Beach;”
“It is on the CRA list;”
“Parking garage could easily come before Planning and Zoning;”
“That whole strip over there would be a parking garage;”
“We need to specify a municipal parking garage;”
“It would be a huge building;”
“We need to prohibit construction of a parking garage in Bradenton Beach, it doesn’t matter if it’s by a municipality or a huge corporation;”
“Horrendous traffic problems with a parking garage.”
Nicholas then said, “Those were all quotes. That is the very definition of a discussion about public business. And it wasn’t just parking garage discussions: CNOBB discussed ropes and bollards, sidewalks, parking issues, the Bridge Tender (Inn) land swap, Bridge Street planters – all issues that had come before Planning and Zoning or Scenic WAVES.”
The judge ruled that former Planning and Zoning Board members Reed Mapes and Bill Vincent violated the Sunshine Law. – Joe Hendricks | Sun
“The Sunshine Law prohibits discussions of public business. Public business was discussed at every CNOBB meeting. Public business was discussed every time CNOBB met. That was largely the point of the organization,” Nicholas said.
“Also, there were at least four CNOBB meetings that were not recorded early on as the group was becoming organized. What was discussed at those meetings? Who attended those meetings? These questions point to the obvious need for Sunshine Law compliance,” Nicholas said.
Nicholas said the defendants’ passionate and firmly held beliefs regarding city issues caused them to abdicate their obligation to follow the law.
“My finding that all the defendants clearly and unequivocally violated the Sunshine Law does not in any way suggest that they are bad people. I do not agree with the suggestion that the defendants attempted to form a secret government or a shadow government, or that their meetings were surreptitious or clandestine in any way,” Nicholas said.
The judge ruled that former advisory board members Rose Vincent, Patty Shay and Tjet Martin violated the Sunshine Law. – Joe Hendricks | Sun
“Do these individuals have a right to assemble? Absolutely. Do these individuals have a right to free speech? Absolutely. Do these individuals have a right to be concerned about their beloved city? Of course. But once you choose to become part of the government by becoming a member of a government advisory board you are no longer just a spectator. Rules apply, laws apply. The defendants simply did not follow those rules. The defendants simply did not follow those laws. This is not a close call,” Nicholas said.
“Judgment is in favor of the city. The court finds that all the defendants, as members of Planning and Zoning and members of the Scenic WAVES Partnership Committee were subject to Article 1, Section 24 of the Florida Constitution and Section 286.011 of Florida Statute,” Nicholas ruled.
Additional comments
Nicholas said a post-trial hearing will be scheduled to address potential sanctions. These include the city’s request to be reimbursed for a portion of its legal fees that now exceed $250,000.
“We agree with everything the judge said,” Watrous said after he left the courtroom.
“The Sunshine Law has been vindicated,” Barfield said.
“We agree with the judgment and look forward to the city moving forward and healing. The city does not wish to sue any of its board members, and it’s unfortunate this wasn’t settled earlier, but the Sunshine Law is important. It provides the city and its citizens with an open government,” Perry said,
“Obviously, I’m pleased with the verdict,” Clarke said.
“Government in the sunshine is why we are here. It’s as simple as that, it’s as important as that. It’s the foundation of what good government is built on; openness, transparency and accountability. Anything less is just not acceptable and now’s the time to heal,” Mayor John Chappie said.
“I’m very pleased with the judge’s ruling and I would like to thank everyone involved for presenting a clear case to the court. This was an unfortunate circumstance the city commission was put in to uphold our oaths to protect the laws of the state and to protect the city from litigation. I wish this would’ve been resolved through our previous settlement offers for a less expensive and earlier conclusion,” Vice Mayor Jake Spooner said.
Co-plaintiff Jack Clarke, Vice Mayor Jake Spooner (second row), Mayor John Chappie, City Attorney Ricinda Perry, paralegal Michael Barfield and attorney Robert Watrous await the judge’s arrival Friday morning. – Joe Hendricks | Sun
In March, all six defendants rejected a settlement offer from the city that proposed a collective admission that mistakes were made regarding Sunshine Law compliance and a $500 payment from each defendant. The defendants rejected the settlement offer that required them to acknowledge non-compliance with the Sunshine Law.
In May, Metz and the other defendants submitted counter proposals that sought significant financial reimbursement from the city. Metz’s offer also expressed a willingness to subject the city to a future appeals process.
