County’s claim that two Charter amendments approved last fall are unconstitutional to proceed in court case

Reopen Beach Road and Siesta resident Mike Cosentino had sought dismissal of the county’s claim

Bollards installed in late January 2017 are at the ends of the vacated segment of North Beach Road. Signage makes plain that the public can access the road segment. File photo

Twelfth Judicial Circuit Court Judge Andrea McHugh has rebuffed an attempt by an attorney for a Siesta Key resident and nonprofit organization to force Sarasota County into dropping efforts to have two Sarasota County Charter amendments ruled unconstitutional.

Both amendments won voter approval during the Nov. 6, 2018 General Election. One calls for the county to rescind the County Commission’s split decision in May 2016 to vacate a 373-foot-long segment of North Beach Road and reacquire the public right of way. That amendment won support of 65.07% of the voters who cast ballots on it last fall. The other amendment calls for the preservation of county-owned parks, preserves, beach and water access, and waterfront vistas. That amendment won with 72.7% of voter support.

An attorney for Siesta resident Michael Cosentino and the nonprofit organization Cosentino founded in late June 2016 — Reopen Beach Road — had filed a motion seeking dismissal of the county’s claim that the Charter amendments are invalid because of their alleged contravention of state law. McHugh wrote in a May 10 order that a motion to dismiss a complaint tests whether that complaint is legally sufficient in stating a cause of action. Such a motion does “not determine ultimate issues of fact,” she added.

McHugh conducted an April 29 hearing on the arguments involving the Cosentino/Reopen Beach Road motion.

Representing Cosentino and Reopen Beach Road (RBR), Attorney Lee Robert Rohe of Big Pine Key filed the Motion to Dismiss on Oct. 25, 2018 in response to a crossclaim the county filed on Sept. 18, 2018. The county action was part of the original lawsuit Cosentino and Reopen Beach Road filed against the county in June 2016 to try to overturn the vacation of the portion of North Beach Road.

In its September 2018 action, Sarasota County first challenged the constitutionality of the two County Charter amendments.

Linda Valley. File photo

On Nov. 27, 2018, Cosentino and 14 of the supporters of the Reopen Beach Road initiative appeared before the county commissioners during an Open to the Public period, chastising then-County Attorney Stephen DeMarsh and his staff for filing motions in the 12th Judicial Circuit that challenged the amendments.

“There is nothing so sacred in our democratic society as the right to vote and have our vote counted,” one of the speakers, Linda Valley, told the commissioners. “And now you want to … disenfranchise every voter.”

Cosentino added, “To use our tax dollars to pay the county attorney to suppress our will as expressed through our vote is unconscionable. You literally are pouring poison on the very roots of our democracy. … Please stop fighting the will of the people. Reopen Beach Road and preserve our precious public lands.”

Responding to another speaker, Commissioner Nancy Detert said, “The voters voted. … We understand that. It’s a process; it doesn’t happen the very next day,” she added of implementing provisions of new Charter amendments. “We’re trying to go through the legal process in an orderly manner.”

Commissioners have complained about the vagueness of the language of the second amendment, especially. Early this year, it was the focus of their decision to postpone a vote on a petition seeking the county’s vacation of a portion of a road in Venice that has a view of a body of water.

In her May 10 order, McHugh wrote, “The [county’s] crossclaim adequately alleges a threat of immediate injury or intrusion on the executive/administrative authority of the Board of County Commissioners as provided by general law. The crossclaim further alleges that the provisions are void for vagueness.”

In a Nov. 7, 2018 filing in the original case over the road vacation, Assistant County Attorney David Pearce wrote that the Charter amendments “create an immediate injury by requiring the County to re-acquire Beach Road and by contravening the express authority granted to the Board by general law to sell or convey land, vacate roads, and to create an annual budget.”

McHugh further pointed out in her May 10 order, “The County is entitled to challenge the constitutionality of the charter provisions post-election.”

These are the Cosentino Charter amendments, as noted in materials provided to the County Commission on Aug. 29, 2018. Voters approved the language shown. Image courtesy Sarasota County

Rohe, the attorney for Cosentino/RBR, contended that the crossclaim was not viable because it arose out of issues in the original, 2016 lawsuit Cosentino filed. Moreover, the Motion to Dismiss argued that the previous judge in the case — Circuit Judge Frederick P. Mercurio — had found “there were no irregularities in the proposed amendment titles or ballot summaries”; thus, he allowed them to stay on the Nov. 6, 2018 ballot.

Finally, Rohe alleged that the crossclaim “is a strategic litigation against public participation” — a SLAPP suit, which Florida law prohibits.

In regard to that last argument, McHugh wrote in her May 10 order that the crossclaim did not seek to challenge the petition drive Cosentino and his supporters pursued to gain enough signatures of registered county voters to get the two proposed Charter amendments on the Nov. 6, 2018 ballot.

In response to a Sarasota News Leader request for comment, Cosentino wrote on May 14, “I am encouraged by and agree with the judge’s order. We look forward to moving away from legal posturing and toward proving the constitutionality of our two charter amendments that received the overwhelming support of Sarasota’s voters this past November.”

The Office of the County Attorney does not comment on pending litigation, county staff has told the News Leader.

Refuting claims during the hearing

Circuit Court Judge Andrea McHugh. Image from the 12th Judicial Circuit Court website

In her ruling, McHugh also pointed out that, during the April 29 hearing on the Motion to Dismiss, Rohe argued that the county “was not authorized to prosecute a lawsuit,” citing Section 86.091 of the Florida Statutes. Instead, Rohe asserted that only a person could file such a suit, and he indicated that if the statute permitted the county to file a suit, the county would have to “file the suit against every citizen of Sarasota County.”

“A plain reading of the statute contradicts both [Rohe’s] assertions,” McHugh wrote. The statute, she continued, “includes no language or limitation on who may bring suit. Second, the statute states that all persons with an interest which would be affected may[her emphasis] be made parties [to the complaint].”

She noted, “The word “may’ is permissive, and does not signify a requirement.” Additionally, she wrote, Cosentino and RBR “cite no authority for reading the statute in this manner, nor any appellate decision where a party challenging a charter amendment was required to sue every citizen in the county.”

Conversely, she pointed out, the county did cite a judicial precedent to bolster its arguments. That case involved a taxpayer who challenged a charter amendment after an election. The taxpayer did not name every citizen in the county as parties to the lawsuit, McHugh continued, “though presumably every citizen would be affected by the declaratory ruling.”

McHugh noted that that case was Charlotte v. Taylor, involving Charlotte County, and the judicial precedent she referenced was rendered by the Florida 2ndDistrict Court of Appeal in 1995.

Appeal involving part of original case still underway

As for Cosentino’s original complaint against the county: Last fall, after Judge Mercurio entered an order affirming that he had dismissed all of Cosentino’s claims against Sarasota County, Cosentino and Reopen Beach Road filed an appeal with the 2ndDistrict Court of Appeal in Lakeland.

This week, when the News Leader checked the online docket for that case, the latest notation was one the News Leader reported on last month. It showed that the court had given Cosentino until May 23 to file a reply to the county’s answer in the case.

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