County Commission votes unanimously to accept Special Magistrate’s determination that board’s denial of 2023 Special Exception for Gilligan’s Bar was justified

Siesta Village business sought to present live music after 10 p.m.

This Binding Development Concept Plan, shown to the county commissioners on Jan. 31, 2023, outlines in red the areas where the live music would have been played after 10 p.m. at Gilligan’s. Image courtesy Sarasota County

A Special Magistrate has upheld the Sarasota County commissioners’ vote last year to deny a Special Exception petition submitted by the owner of Gilligan’s Island Bar in Siesta Key Village to provide live music after 10 p.m.

County Attorney Joshua Moye formally reported the decision to the board members during their regular meeting on Jan. 30. In accord with the requirements of the state law governing Gilligan’s owner’s appeal of the 2023 board vote, Moye asked that the commissioners formally accept the Special Magistrate’s recommendation.

According to state law, Moye explained, the board had three options:

  • Accept the recommendation of the Special Magistrate “as submitted and proceed to implement it in the same manner … consistent with the County’s rules.”
  • Modify the recommendation and implement it.
  • Reject the recommendation.

Without comment, the commissioners accepted the recommendation on a unanimous vote. Commissioner Mark Smith made the motion, and Commissioner Joe Neunder seconded it. Smith represents the northern part of Siesta Key; Neunder, the southern portion.

Following the Jan. 31, 2023 public hearing on the Special Exception petition, Smith was the only commissioner to vote in favor of Gilligan’s petition. He was a long-time leader of the Siesta Key Chamber of Commerce prior to his November 2022 election to the board.

Moye noted in a Jan. 30 memo to the commissioners that his staff would inform Nocturnal Properties LLC — the formal owner of Gilligan’s — of the decision in writing “on County Attorney letterhead …”

He added, “The correspondence will also specifically describe the use or uses available to the subject real property as those allowed by any property owner in the Commercial General/Siesta Key Overlay District (“CG/SKOD”).”

Under the provisions of the law used to challenge the commission’s 2023 vote, Nocturnal Properties has the right to file a complaint in court, in the aftermath of the commission’s Jan. 30 vote.

The Florida Land Use and Environmental Dispute Resolution Act [FLUEDRA] says, “The procedure created by this section is not itself, nor does it create, a judicial cause of action. Once the governmental entity acts on the special magistrate’s recommendation, the [property] owner may elect to file suit in a court of competent jurisdiction.”

In an April 6, 2023 letter to the County Commission chair, the attorney for Gilligan’s, Casey Colburn of Sarasota, provided formal notice that his client would pursue the FLUEDRA process. He wrote that the board’s Jan. 31, 2023 vote 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.”

Colburn has argued that the board members were acting on incorrect information in the staff report when they voted to deny the Special Exception petition.

Attorney Casey Colburn. Image from his law firm’s website

In fact, at the end of the regular meeting on Jan. 31, 2023, Colburn took a step that Commissioner Ron Cutsinger, then the board chair, said he never had seen before: Colburn returned to the podium during the Open to the Public comment period to plead with the board members to reconsider their vote, so Smith of Nocturnal Properties could return at an upcoming meeting for a second hearing on the petition.

Commissioners acknowledged that filing another application, and having to go through a second set of county Planning Commission and County Commission hearings, would be expensive. (The application from Gilligan’s showed that the company paid a $7,500 fee for submitting the petition to county staff.)

Commissioner Nancy Detert finally agreed to make a motion to reconsider the vote, and Commissioner Smith seconded it. However, they were the only two who voted, “Yes.”

“To me,” Cutsinger said that day, taking a new vote at that time was “out of line.”

Protests and pleas during the 2023 hearing

In his Jan. 30 memo, County Attorney Moye pointed out, “The Board found [Nocturnal Properties’ Special Exception] application did not provide for mitigation of potential incompatibilities between adjacent land uses.”

Several residents addressed the commissioners during the 2023 hearing, complaining about the music being played at Gilligan’s and other bars and restaurants in the Village.

“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 explained that he had spent $20,000 on new windows and sliders for his unit. 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.”

County Planner Keaton Osborn explained that granting the petition would allow Gilligan’s to present the live music until its closing time, which typically was about 2:15 a.m.

However, Coburn had stressed that the music played after 10 p.m. could not be louder than the county’s noise regulations would allow.

This aerial map shows the location of Gilligan’s Island Bar and an adjacent coffee shop in Siesta Key Village. Image courtesy Sarasota County

“It is not a request to allow more noise, louder noise,” Colburn maintained. The application, he said, 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. Smith, the business owner, “takes these rules seriously,” Colburn said. “This is the kind of operator that you want operating in the Village.”

In the Jan. 30 memo, County Attorney Moye also explained, “Nocturnal Properties alleged the Board made its decision based on a misperception as to the location where live entertainment would take place. The Special Magistrate acknowledged that ‘the staff report could have been clearer and more accurate’ but he believed ‘it was clear to the Board that the Special Exception only applied to Lots 22 and 23 and excluded Lot 11.’ ”

Lot 11 is a parking lot at the rear of the business. Lot 23 is home to a coffee shop; it is the site of the former Lelu Coffee Lounge.

Moye added, “The Special Magistrate also agreed the Board had rational concerns about the potential impacts of extending

the time for live entertainment. Accordingly, the Special Magistrate found the Board’s decision was not unreasonable and did not unfairly burden the use of the property.”

The latter part of that statement refers to state law that protects the rights of property owners.

Allegation of ‘False, misleading and prejudicial evidence’

Scott Steady. Image from the Burr Forman law firm website

In his written report, dated Jan. 12, Special Magistrate Scott I. Steady, a Tampa attorney, explained that Colburn’s positions, summarized as part of his closing argument during the FLUEDRA proceedings, “include, but are not limited to, concerns with alleged ‘False, misleading and prejudicial evidence contained in the [Special Exception application] staff report,’ ” which was in the agenda packet for the Jan. 31, 2023 commission meeting.

As he reviewed the video of the public hearing and listened to the commissioners’ comments, Steady continued, he believed that the majority of the commissioners “had concluded that the Special Exception did not sufficiently mitigate the effects of the Special Exception and suggested (as is often the case at these type of hearings) that a different proposal might have been acceptable. I don’t believe the Board members’ statements made in that context are unreasonable.”

In making the Jan. 31, 2023 motion to deny the Special Exception request, Commissioner Moran said, “It’s not consistent with the [county’s Comprehensive] Plan goals, objectives and policies” regarding compatibility with neighbors. He referenced comments that speakers had made during the public hearing.

“The 2 o’clock [factor] has just been the deal-breaker, I think,” Commissioner Detert pointed out after seconding Moran’s motion.

When attorney Colburn returned to the podium at the end of the Jan. 31, 2023 meeting, he pointed out that, prior to the Dec. 2, 2022 county Planning Commission hearing on the petition, Gilligan’s owner Smith had agreed to eliminate the rear parking lot of the business as an area where the live music could be played.

County Planner Osborn, who handled the petition, made that clear in his remarks to the county commissioners, as part of his Jan. 31, 2023 presentation.

Catherine Luckner, president of the Siesta Key Association, had pointed out that the parking lot is adjacent to a residential area and that leaders of the nonprofit, which — she emphasized — is a residential civic organization, had worked with island business owners “to make the Village livable.”