Attorney for business owner makes late-day attempt to get motion rescinded and fails
On a 4-1 vote taken on Jan. 31, the Sarasota County Commission denied a petition for a Special Exception to allow Gilligan’s Island Bar in Siesta Village to present live music — both indoors and outdoors — beyond 10 p.m. each day.
As it turned out, they ended up voting a second time on the issue, following debate among board members that took place nearly 11 hours after the meeting began.
The business and an adjacent coffee shop that Siesta resident Scott C. Smith owns are located at 5251 and 5253 Ocean Blvd., respectively, on the western end of Siesta Village.
Commissioners objected to the fact that the application included no proposal to halt the music at a specific time and that it did not specify exactly where the music would be played outside. County Planner Keaton Osborn, who handled the application, told the board members that staff’s expectation was that the music would continue until the business had to stop serving alcohol, which is 2:15 a.m.
“The 2 o’clock [factor] has just been the deal-breaker, I think,” Commissioner Nancy Detert pointed out after seconding Commissioner Michael Moran’s motion to deny the application.
The music played after 10 p.m. could not be louder than the county’s noise regulations would allow, Lakewood Ranch attorney Casey Colburn, who was representing Gilligan’s, pointed out during the hearing.
“It is not a request to allow more noise, louder noise,” Colburn stressed. The application, he continued, is to “allow live human beings to pluck strings, sing songs, juggle, whatever, after 10 o’clock.” That cutoff time for the music, he added, is unique to Sarasota County.
If any performer at Gilligan’s violates the existing county noise regulations, Colburn pointed out, that person is not invited back. Owner Smith “takes these rules seriously,” Colburn continued. “This is the kind of operator that you want operating in the Village.”
Commissioner Mark Smith, a Siesta Key resident, cast the only “No” vote on the motion, having pointed out that he knows Scott Smith, and Gilligan’s has a track record of abiding by county noise regulations. “I don’t have an issue with what’s being requested,” Commissioner Smith said.
However, while Coburn said that the business never had had a noise complaint lodged against it in the years his client has owned it, Commissioner Smith did note that he had found a 2010 complaint when he researched Gilligan’s in the county’s records.
(Sarasota County Property Appraiser’s Office records show that Scott Smith’s company, Nocturnal Properties LLC, bought the Gilligan’s parcel in September 2007 for $1,219,800.)
In explaining why he made the motion to deny the application, Commissioner Moran pointed out, “It’s not consistent with the [county’s Comprehensive] Plan goals, objectives and policies” regarding compatibility with neighbors. He referenced comments speakers had made during the public hearing in regard to their difficulty in sleeping as they contend with the existing county noise regulations.
Commissioner Joe Neunder also cited the fact that the music could continue until 2 a.m. or so as the primary reason for opposing the application. Pointing out that he has three children, he said, “I’m just curious as to why anything would be open till 2 a.m. … I value my sleep.”
“This is not a difficult decision,” Chair Ron Cutsinger added. “I’m going to be a hard ‘No’ on this.”
The hearing lasted slightly more than an hour, including remarks of six Siesta Key residents — including Catherine Luckner, president of the Siesta Key Association, and Mike Holderness, one of the owners of Siesta Key Beach Resort and Suites at 5311 Ocean Blvd. All of them asked the board members to deny the request.
Several owners of condominiums in the Terrace East complex, which is near Gilligan’s, talked of being able to hear the music at the business with their windows shut.
“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 Terrace East 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, “I still hear 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.”
Additionally, John Doherty told the commissioners that, while Scott Smith and attorney Colburn had indicated that most of Gilligan’s customers leave after the music stops at 10 p.m., he is able to see the business from his Terrace East condominium and knows that is not true. “There isn’t a mass exit at 10 o’clock.”
Residents also complained about the lack of county Code Enforcement response to loud music in the Village at night.
Yet, Matt Osterhoudt, director of the county’s Planning and Development Department, which includes the Code Enforcement Division, explained in response to a question from Commissioner Neunder that the Code Enforcement staff covers the entire county, and those workers have their own noise meters, which they are trained to use. The officers are on call, even at night, Osterhoudt said.
Luckner of the Siesta Key Association talked about the fact that her nonprofit, which — she emphasized — is a residential civic organization — has worked with island business owners “to make the Village livable.”
The granting of the Special Exception would threaten the balance of quality of life and work that has been established for residents and commercial enterprises, she indicated.
Something ‘never seen before’
Hours after the hearing — close to 8 p.m. on Jan. 31 — attorney Colburn returned to the podium during the final Open to the Public period of the day. He asked the commissioners to reconsider their decision, so Scott Smith could return at an upcoming board meeting for a second public hearing on the Special Exception.
Colburn explained that Robert’s Rules of Order would allow such a vote if one of the commissioners in the majority on the earlier vote were to make a motion to rescind it.
Colburn said he was appealing to the board members’ “good nature” and providing them “an opportunity to do some justice …”
He contended that several pages of the county staff report on the application had errors, and commissioners had referenced incorrect information during their debate earlier in the day.
Among the incorrect information he alluded to is a statement that the applicant wanted to allow live music even in the parking lot behind the business, he pointed out.
However, Colburn stressed, even before the Dec. 1, 2022 county Planning Commission hearing on the Special Exception, 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, as Colburn and Smith had stipulated.
Following Colburn’s remarks at the end of the Jan. 31 meeting, Commissioner Detert told Colburn, “I don’t think you listen well.” Board members had suggested during their discussion, she said, that Scott Smith could have sought a continuance to try to work out a compromise with his neighbors regarding the ending time for the music.
“I’ve never seen this before,” Chair Cutsinger said of Colburn’s request.
Deputy County Attorney Josh Moye acknowledged that one of the commissioners who voted to deny the application could make a motion to reconsider the issue. Otherwise, Moye said, county regulations would make it necessary for Smith to wait a year before filing a new application for the Special Exception.
Commissioners acknowledged that filing again for that Special Exception, and having to go through another set of Planning Commission and County Commission hearings, would be expensive. The application from Gilligan’s showed that the fee for submitting a Special Exception petition to county staff is $7,500.
Detert ended up making the motion to reconsider the vote, and Commissioner Smith seconded it.
Yet, Commissioner Moran said, “I have a serious issue with this.” The commissioners held the public hearing and participated in “a big debate,” he said. If he had been one of the speakers during that hearing, who left the meeting knowing that the commission had denied the Special Exception, and then learned the next day that a new vote had been taken at the end of the meeting, he would be very upset, Moran indicated.
“I don’t feel very comfortable with this, if I’m being honest,” Commissioner Neunder added. If the board reversed itself, he continued, that could set a precedent. “I really don’t want that on my conscience.”
Moreover, Neunder pointed out, “For me, it’s already a 12-hour day.” (Neunder lives in Nokomis, and the meeting was in downtown Sarasota.)
He also concurred with Moran’s remarks about the speakers who had participated in the hearing.
Several times, as the commissioners spoke, attorney Colburn tried to offer comments from his seat in the chambers. Chair Cutsinger admonished him.
Speaking last during the discussion, Cutsinger said he agreed with Moran and Neunder. “To me,” Cutsinger added, taking a new vote at that time “is out of line.”
Detert pointed out that a vote to rescind the denial would not mean that the commissioners necessarily would approve the Special Exception if a second hearing were scheduled.
“I just feel bad for the guy,” she added of Scott Smith. “He’s getting really bad advice.”
Finally, Cutsinger called for the vote, and the motion to rescind the earlier decision failed, with only Detert and Commissioner Smith supporting it.