Circuit Court judge rules that Cosentino Charter amendments can stay on Nov. 6 ballot

New complaint filed by different set of North Beach Road property owners, seeking to strike the amendments from ballot or a declaration they are unenforceable, if they pass

A May 2016 graphic shows the segment of North Beach Road that the County Commission voted to vacate. Image courtesy Sarasota County

Following an expedited hearing on Oct. 12, a 12th Judicial Circuit Court judge has ruled that two proposed Sarasota County Charter amendments relating to North Beach Road can stay on the Nov. 6 General Election ballot.

In an order signed on Oct. 15, Judge Frederick P. Mercurio wrote, “The Court finds no irregularities in the proposed amendment titles or ballot summaries.”

Therefore, he denied a motion filed by Dennis and Wendy Madden, owners of property on North Beach Road, arguing that voters should not be allowed to consider the proposed amendments.

The advocates of the amendments — Siesta Key resident Michael Cosentino and a nonprofit he established in 2016, Reopen Beach Road — want to overturn the 4-1 County Commission vote on May 11, 2016 that vacated a 373-foot segment of North Beach Road. Cosentino also remains engaged with the county and the Maddens in litigation over that 2016 action. (See Siesta Seenin this issue.)

In an Oct. 17 telephone with The Sarasota News Leader, Dennis Madden declined to comment on whether he and his wife would appeal Mercurio’s ruling.

The house at 77 N. Beach Road is owned by the Caflish family. File photo

As it happens, only three days before the Oct. 12 hearing, a second set of plaintiffs took action in an effort to keep the amendments off the ballot: William and Sheila Caflisch and Sheila Caflisch as a trustee of property on North Beach Road. They had joined the Maddens in petitioning the county for the road vacation.

In their amendments case, the Maddens argued that Cosentino, Reopen Beach Road and Cosentino’s supporters did not apprise the public of the fact that the county would have to pay for improvements to the vacated road segment to comply with one of the Charter amendments, if it were approved.

Additionally, the Maddens pointed out in their motion that passage of that same Charter amendment would make it necessary for the county to reacquire the property the commission vacated in May 2016.

A county transportation engineer, Thai Tran, estimated the expense of the road stabilization and repairs alone would be at least $7 million, the Maddens’ attorney, M. Lewis Hall of the Williams Parker firm in Sarasota, told Mercurio during the Oct. 12 hearing.

County photos in a 2013 engineering report show damage to North Beach Road in October 2005. Image courtesy Sarasota County

Yet, the Maddens argued, Cosentino and his supporters merely asked county citizens if they would like to see the North Beach Road segment reopened, so they could drive along the Gulf of Mexico shoreline on Siesta Key.

Cosentino’s proposed Charter Amendment 3.9 reads as follows: “Siesta Key Beach Road as Public Right of Way. The County shall rescind the vacation of, or re-acquire, Beach Road on Siesta Key as it existed on January 1, 2016, and shall not vacate or sell this County-owned road segment(s) or right of way. The County shall provide maximum right of way use of Beach Road for public access, including vehicular use and viewing of waterfront vistas. The County shall make Beach Road accessible to mobility impaired persons.”

In his Oct. 9 response to the Maddens’ motion to remove the proposed amendments from the Nov. 6 ballot, Cosentino’s attorney, Lee R. Rohe of Big Pine Key, argued that the 12thJudicial Circuit Court had no jurisdiction over the Maddens and that they failed to prove they had “standing” to challenge the amendments’ placement on the ballot. “Standing” is a legal term referring to whether a party has sustained or would sustain direct harm from a specific action and that the harm can be redressed. Rohe argued that the Maddens did not even state in their motion whether they are citizens and registered voters in Sarasota County.

Furthermore, he wrote, “There was no issue with [Cosentino’s] main case in 2016 that was ‘already at stake’ concerning the petition drive or, as now, placement of the Charter Amendments on the general election ballot.”

Rohe further argued that the Maddens were limited in their legal recourse regarding the amendments because they were allowed to intervene in the original case, instead of being defendants.

Worries over the second proposed Cosentino amendment

In October 2013, Taylor Engineering of Jacksonville provided these options for addressing the North Beach Road damage. Image courtesy Sarasota County

The county commissioners have joined County Attorney Stephen DeMarsh in voicing concern about the potential passage of Cosentino’s other proposed Charter amendment, 3.10, on the Nov. 6 ballot. It says, “Preserve County-Owned Parks, Preserves, Beach and Water Access and Waterfront Vistas. The County shall not sell, and shall retain ownership of, County-owned Parks and Preserves, and shall not vacate or sell County-owned road segments or rights of way along orabutting any beach, river, creek, canal, lake, bay, gulf access or waterfront vista. The Countyshall encourage maximum right of way use for public access and viewing of waterfront vistas. Whenever feasible, the County shall make these areas accessible to mobility impaired persons.”

Because of their concerns, commissioners have urged staff to complete an agreement with Mote Marine Laboratory prior to Nov. 6. That agreement, as they discussed last week, would enable the county to lease and ultimately sell property at Nathan Benderson Park to Mote for construction of the nonprofit’s planned $130-million aquarium.Commissioner Charles Hines stressed again during the board’s Oct. 9 regular meeting that if the Charter amendment passed, the county would not be able to complete such a transaction with Mote.

The Caflisch complaint

Writing on behalf of William and Sheila Caflisch, attorney William Moore, of the Sarasota law firm Moore Bowman & Rix, argues that if Cosentino’s Charter amendments cannot be taken off the ballot, they “should be declared unenforceable” if voters approve them.

The Caflisches contend that each ballot question “is phrased in such a way as to be vague and misleading in that each question (a) ‘flies under false colors and/or (b) essentially, ‘hides the ball’ from the voter.” Because of that, Moore writes, the amendments violate standards set by the Florida Statutes.

These are the ballot questions regarding Mike Cosentino’s proposed Charter amendments as they will appear on the Nov. 6 General Election ballot. Image courtesy Sarasota County

County Attorney DeMarsh explained to the commissioners on Aug. 29 that he and his staff had to rewrite Cosentino’s proposed amendments partly so the amendments would conform to state law requiring that no ballot question to be more than 75 words.

Moore does point out in the complaint that DeMarsh made it clear to the County Commission that Cosentino’s proposed ballot language did not comport to the requirements of state law and case law. Moore includes in the complaint information DeMarsh provided to the County Commission before it held a public hearing on Aug. 29 on whether to place Cosentino’s amendments on the General Election ballot.

Under state law, Moore continues, “the burden of informing the public electorate of what an amendment entails should not fall only on the press (or on the opponents of the measure); rather, the ballot title and summary must do so.”

S. William Moore. Image from the Moore Bowman & Rix website

Yet, for one example, Moore points out that the ballot question for proposed Charter Amendment 3.9 does not explain that the property owners who won the road vacation in 2016 granted a public easement over the vacated area to ensure continued public access by all means except motor vehicle. (The road had been closed to traffic since 1993 because of repeated storm damage. The conditions were shown in county staff photos included in a 2013 engineering report the County Commission paid for, which was undertaken by a Jacksonville firm.)

The question for the other proposed Charter amendment, 3.10, Moore continues, “misleads the voter into thinking that a County’s Charter can supersede State general law.”

“A County Charter may not contain provisions contrary to general law,” Moore writes. Two sections of the Florida Statutes, he continues, “expressly authorize a County to sell or convey ‘any real property’ owned by the County.”

Furthermore, he contends, that proposed question “is also vague or misleading in that neither the terms ‘preserves,’ nor ‘waterfront vistas’ [is] defined. Nor does the [ballot] Question … explain to the voter that the proposed language in Section 3.10 requires ‘whenever feasible, the County shall make these areas accessible to mobility impaired persons.’ Thus, the voter is not told in the ballot question that the County must[Moore’s emphasis] expend [a] certain amount of public funds to achieve a goal, which is not even addressed in Question Two[Moore’s emphasis again]. That is the definition of ‘hiding the ball.’”

In the latter statement, Moore was referring to a Florida Supreme Court ruling that ballot questions have to be clear about their intent.

The Supervisor of Elections Office concerns

In an Oct. 5 telephone interview with the News Leader, Sarasota County Supervisor of Elections Ron Turner said that if the court rules that Cosentino’s amendments must be stricken from the ballot, “No votes will be officially tabulated.”

However, he pointed out, it is physically impossible at this point to remove the amendments from ballots, especially because so many ballots have been sent to people who wished to vote by mail.

If the judge ultimately rules that the amendments cannot remain on the ballot, Turner added, notices would be posted in every voting booth to notify citizens on Election Day of the judicial decision.

“It’s never dull from one day to the next,” Turner added.