Tampa attorney chosen as Special Magistrate to handle the case
The attorney for the owner of Gilligan’s Island Bar & Grill in Siesta Key Village formally has requested mediation with Sarasota County over the County Commission’s denial of a petition that would have allowed the business to present live music after 10 p.m., both indoors and outdoors.
The April 6 letter from attorney Casey Colburn of Sarasota, sent to board Chair Ron Cutsinger, says Nocturnal Properties LLC — the formal owner of Gilligan’s — is seeking relief as afforded by Section 70.51 of the Florida Statutes. That part of state law is known as the Florida Land Use and Environmental Dispute Resolution Act.
The board’s vote, Colburn wrote, prevents Gilligan’s owner Scott Smith “from serving his existing customers, who come specifically for the live entertainment and who, when the live entertainment is required by County regulation to stop at 10:00 pm, exit the restaurant in favor of other venues across the street and down the block that provide live entertainment.”
County staff testimony during the hearing noted that other establishments in Siesta Village — The Hub Baja Grill, the Siesta Key Oyster Bar and the Daiquiri Deck — have Special Exceptions to provide live entertainment after 10 p.m.
However, conditions were attached to those Special Exceptions to mitigate the impact of the music on the surrounding area, as county staff has documented. The conditions for The Hub and the Daiquiri Deck specify that the music must be played indoors. Further, the hours for all three businesses are limited.
Colburn added in his letter, “As a consequence [of the live music’s end, Smith] is required to recruit a second customer base [which is] attracted not by the low-key ‘beachy vibe’ that exists prior to 10:00 pm, but rather attracted to prerecorded dance music allowed by the government on the property after 10 pm.”
The volume of that prerecorded music cannot be louder than the level specified by the county’s Sound Ordinance, staff has pointed out. However, the live music also would have had to adhere to the provisions of the county regulations, staff has said.
Colburn then explained that the second customer base “requires a different type of staffing (it is younger and more rowdy).” Moreover, he wrote, “The second crowd is less profitable for the property owner.”
During the commission’s regular meeting on Jan. 31, the members voted 4-1 to deny Gilligan’s Special Exception petition. Commissioner Mark Smith, who lives on Siesta Key, cast the “No” vote.
Commissioners cited testimony that day by residents who live in and close to Siesta Village. They had complained about the noise that emanates from Gilligan’s up to 10 p.m. and pleaded with the commissioners not to grant the Special Exception.
County Planner Keaton Osborn, who handled the matter on behalf of county staff, also explained that Gilligan’s does not stop serving alcoholic beverages until 2:15 a.m.; therefore, it was staff’s expectation, he said, that the live music could continue that late into the night.
Among the public comments during the hearing were as follows:
- “If you experienced what we residents do late at night in the Village,” Mary Smarelli told the commissioners, “you would not vote for the Special Exception.”
- Tim Haake of the Terrace East condominium complex on Ocean Boulevard explained that he had spent $20,000 on new windows and sliders in his condominium. Yet, he said, even with that investment, and the use of earplugs and a white noise machine, “Istillhear this noise” late at night.
- “Can you sleep at 2 o’clock in the morning with a bad rendition of the Rolling Stones through your windows?” Dr. Joe Reagan asked. “No, you cannot.”
Then, during the Open to the Public period at the end of that meeting — even though it was nearly 8 p.m., in the aftermath of an hours-long public hearing on a separate topic — attorney Colburn went to the podium and implored the commissioners to reconsider their vote so Scott Smith, the principal of Nocturnal Properties, could return at an upcoming meeting for another public hearing on the Special Exception.
Colburn contended that several pages of the county staff report on the Special Exception application had errors, and commissioners had referenced incorrect information during their debate earlier in the day.
Among the incorrect information he alluded to was a statement that the applicant wanted to allow live music even in the parking lot behind the business, he pointed out.
However, Colburn stressed during the Dec. 1, 2022 county Planning Commission hearing on the Special Exception that he and Scott Smith had agreed with the county Planning Division staff that no music would be allowed in the parking lot.
During the Jan. 31 County Commission public hearing, county Planner Osborn did point out that the parking lot would not be the site of any live performances.
Even though she referenced the testimony during the hearing in opposition to the Gilligan’s petition, Commissioner Nancy Detert agreed to Colburn’s late-day request and made a motion to reconsider the vote. Commissioner Smith seconded the motion, but the motion failed on a 2-3 vote.
Several weeks later — during the board’s regular meeting on March 7 — the formal resolution of denial of the Special Exception was on the Consent Agenda of routine business matters. Once again, attorney Colburn pleaded with the commissioners to reconsider their denial of Nocturnal Properties’ petition. That time, all of the commissioners voted to approve the Consent Agenda, including the resolution; no one mentioned Colburn’s remarks.
In his April 6 letter, Colburn reiterated his allegations that the commissioners were not properly advised on the various facets of the Special Exception petition. Colburn added, “The landowner has incurred extensive legal, surveying, and application fees in pursuit of the application and this appeal, which was improperly denied by the County Commission.”
Then he noted that the Florida Land Use and Environmental Dispute Resolution Act called for the commissioners to forward Nocturnal Properties’ request for relief to a Special Magistrate upon whom both parties had. That action had to take place within 10 days after the county’s receipt of his request.
Further, Colburn pointed out, the commissioners could not charge Scott Smith for making the request for relief under the guidelines of the Florida Statutes.
The Special Magistrate and the county’s legal response
Through a public records request, The Sarasota News Leader learned that attorney Scott I. Steady of the Tampa firm Burr Forman has been chosen as the Special Magistrate to handle the dispute.
In an April 18 letter to the County Commission and Colburn, Steady noted that his fee would be $375 per hour. His understanding, he added, is that the total would be “divided equally between the two parties.”
He also requested a $2,500 retainer from Nocturnal Properties, which Burr Forman would keep in its trust account, “to be applied to the final invoice” or to be returned “at the end of the engagement.”
The formal county response to the request for relief
Assistant County Attorney David Pearce handled the formal response to Nocturnal Properties’ request for relief under the guidelines of state law. Pearce included images from county Planner Osborn’s PowerPoint presentation to the county commissioners.
“Originally,” Pearce pointed out, “the special exception application did not include any limitations on the location for live entertainment. After the Planning Commission meeting [in December 2022], Nocturnal Properties proffered a stipulation that live entertainment would be limited to Lots 22 and 23. [Those parcels contain the building in which Gilligan’s Bar operates, plus the adjacent structure, which is home to a coffee shop that Scott Smith also owns.] Thus,” Pearce continued, “there would not be live entertainment within the parking lot, which is Lot 11. The applicant also proffered that the location from which sound emanates would be where [it is] ‘not likely to cause unreasonable impacts upon nearby residents or result in violations of the County’s regulations pertaining to unreasonable sound or specified measurable noise levels.’ ”
Further, Pearce explained, while Nocturnal Properties’ application for the Special Exception said no change in the restaurant’s operation was proposed, owner Smith has “indicated it is possible that a ‘chickee’ roof may be added over all or a portion of 5251 Ocean Boulevard [where Gilligan’s stands], and that windows, door or other openings may be added or altered on the front (west), side (south), and rear (east) of that building to provide visual and pedestrian connection(s) for customers and workers going between the 5253 Ocean Boulevard property [the address of the coffee shop].”
Moreover, Pearce noted, while attorney Colburn had alleged that the County Commission made its decision on the Special Exception petition on the basis of “a misperception as to the location where live entertainment takes place,” that allegation “is speculation based on comments from a commissioner during the public hearing about certain findings of fact by the Planning Commission.”
Pearce also pointed out, “Nocturnal Properties had the burden of making an adequate presentation explaining its mitigation efforts to the [County Commission].” Pearce cited a judicial precedent set by Florida’s Second District Court of Appeal in a 1985 case, Sarasota County v. Purser.
“The Purser decision is still good law,” Pearce wrote. “Nocturnal Properties never overcame its burden of demonstrating the special exception would be in the public welfare,” he added.
Then Pearce noted that the board vote to deny the Special Exception was 4-1. “Thus,” he continued, “assuming that one commissioner was incorrect in the rationale for his decision, the error would be harmless given the number of commissioners voting against the special exception. See The Reserve at West Bay, LLC v. City of Panama Beach,” a 2007 case involving the 14th Judicial Circuit Court in Florida, Pearce added.
Quoting from that judicial precedent, Pearce wrote, “ ‘Thus, assuming Council Member Russell should have abstained from voting on such matter, any alleged error is harmless, as Council Member Russell’s participation was not consequential to the outcome.’ ”
Finally, Pearce pointed out, the formal resolution the County Commission approved on March 7, “articulated the reasons for the denial. … Even with the live entertainment limited to the entirety of Lots 22 and 23, there is ample reason for the Board to deny the special exception application.”
He also included in his response the Special Exception criteria outlined in Section 124-43(d) of the County Code of Ordinances.
Among those are the following:
- “b. The proposed use must be compatible with the existing land use pattern and designated future uses”;
- “d. The proposed use, singularly or in combination with other Special Exceptions, must not be detrimental to the health, safety, morals, order, comfort, convenience, or appearance of the neighborhood or other adjacent uses by reason of any one or more of the following: the number, area, location, height, orientation, intensity or relation to the neighborhood or other adjacent uses;
- “e. The proposed use must be adequately buffered to effectively separate traffic, visual impact and noise from existing or intended nearby uses.”
In its resolution of denial, Pearce continued, the commissioners found the following:
- “1. The proposed use is not consistent with the intent, goals, objectives, policies, guiding principles, and programs of the Comprehensive Plan: Future Land Use Policy 1.2.17 — Mitigation of potential incompatibilities between uses.
- “2. The proposed use is not compatible with the existing land use pattern and designated future uses: The proposed Special Exception is not providing effective mitigation efforts to ensure compatibility with adjacent land uses.
- “3. The proposed use, singularly or in combination with other special exceptions will be detrimental to the health, safety, morals, order, comfort, convenience, or appearance of the neighborhood or other adjacent uses by reason of any one or more of the following: the number, area, location, height, orientation, intensity, or relation to the neighborhood or other adjacent uses: The proposed Special Exception is not providing effective mitigation efforts to ensure compatibility with adjacent land uses, specifically the relationship to adjoining businesses and residences, and hours of operation proposed.
- “4. The proposed use will not be adequately buffered to effectively separate traffic, visual impact, and noise from existing or intended nearby uses: The proposed Special Exception [has] not provided effective mitigation efforts to ensure compatibility with adjacent land uses, specifically no enhanced buffers, noise mitigation or set location areas for music outdoors.”
Nocturnal Properties “may continue to operate a nightclub at its property,” Pearce pointed out. “The special exception would only allow live entertainment after 10 p.m.”
In this case, Pearce concluded, the commission’s “decision is not unreasonable and does not unfairly burden the property.”
The latter phrase references state law regarding private property rights.