Attorneys debate issues related to recent administrative law judge ruling in favor of Siesta resident Ramirez
Editor’s note: This article was updated early in the morning of April 21 to clarify a Florida administrative law judge’s ruling that could have an impact on the Circuit Court litigation involving two hotels planned on Siesta Key.
The earliest, it appears, that a trial would be conducted on two lawsuits filed in late 2021 to try to stop the construction of two high-rise hotels on Siesta Key would be the week of Nov. 13.
That was a decision that the parties made during an approximately 48-minute status conference that the new judge presiding over those cases — 12th Judicial Circuit Court Judge Hunter Carroll — held with the parties’ attorneys on April 20.
The lead attorney for the owners of the two hotel sites and the developers — known formally as Intervenors — initially asked Carroll to delay any potential trial until after a final decision has been made on a recent ruling that was in favor of Siesta resident Lourdes Ramirez, who filed the first hotel complaint.
That could take up to two years, attorney Scott McLaren of the Tampa firm Hill Ward Henderson, acknowledged.
“I am not inclined to, at this point, stop the proceedings,” Carroll told McLaren. “My view is that we need to move cases as quickly as we possibly can,” Carroll said later. “I’m not a big fan of delays for delays’ sake.”
“Understood,” McLaren replied.
Assistant County Attorney David Pearce, who is handling the hotel litigation on behalf of Sarasota County, which is the defendant, characterized the issue McLaren was referencing as “a peculiar quirk.”
On April 3, Florida Administrative Law Judge Suzanne Van Wyk issued an order in Ramirez’s Florida Division of Administrative Hearings (DOAH) challenge, which contended that the County Commission violated the county’s Comprehensive Plan. That document guides growth in the community. In her order, Van Wyk agreed with Ramirez that county Future Land Use Policy 2.9.1 in the Comprehensive Plan limits intensity and density of future development on the barrier islands to the level in place as of March 13, 1989.
Van Wyk had conducted a November 2022 hearing on the issues in that case. During that proceeding, Ramirez’s attorneys explained that the County Commission agreed with the Calle Miramar hotel project team’s assertion that hotel rooms should not be counted for residential density purposes countywide; those rooms are commercial in nature, attorney William Merrill III of the Sarasota firm Icard Merrill contended.
Instead of approving a Comprehensive Plan amendment that would have overridden Future Land Use Policy 2.9.1, the commissioners agreed to amend the county’s Unified Development Code (UDC), which contains all of the land-use and zoning regulations.
A supermajority vote — four of five commissioners — is necessary to amend the Comprehensive Plan. A change in the UDC takes just three votes.
After hearing the testimony in November 2022 and reviewing all of the documents entered into evidence in the case, Administrative Law Judge Van Wyk wrote that she found she found that the county’s 1981 Comprehensive Plan “specifically discusses the Barrier Islands as an area of special concern, acknowledging the ‘problems associated with development on the barrier islands,’ including ‘the detrimental effect of building along the active beach areas’ and ‘difficulties of evacuating large numbers of people from the Keys in time of emergency.”
Further, she noted, that 1981 plan described Siesta Key as “ ‘highly developed’ and ‘contain[ing] some of the County’s most intensive residential development.’ ” That plan “then states that it ‘recognizes the existing development represents the maximum levels of development on the Keys[.]’ (emphasis added).”
During the April 20 status conference, Assistant County Attorney Pearce explained to Judge Carroll that an administrative law judge’s ruling is referred to what is called the “Administration Commission,” comprising Gov. Ron DeSantis and the members of the Florida Cabinet.
Just the previous day, Pearce added, the parties in the DOAH case — including the Intervenors — received official direction to prepare proposed orders that will be submitted to the Administration Commission for its members to consider before issuing their final decision on the DOAH case.
In the aftermath of DOAH rulings, Pearce continued, the Administration Commission — as outlined in the Florida Statutes — decides whether to call for remedial actions or financial sanctions. He also believes, he said, that the commission can overrule an administrative law judge.
One of Ramirez’s attorneys, David Grosso of Plantation — who told Carroll that he had participated in a number of recent DOAH cases referred to the Administration Commission — disputed Pearce’s contention.
Van Wyk’s order “is a final state administrative order,” Grosso emphasized. “The sole issue is whether the Cabinet will levy sanctions against the county” because the County Commission violated policies in the Comprehensive Plan. Grosso added, “The governor and the Cabinet have no authority whatsoever to override [the administrative law judge’s interpretation of the facts].”
“I must respectfully disagree, sir,” Pearce responded to Grosso, citing the applicable state statute.
Debating the DOAH issue
“We agree with Mr. Pearce” on his interpretation of the Administration Commission’s ability to overturn Van Wyk’s ruling, attorney McLaren told Carroll on April 20.
However, McLaren continued, if the commission agrees with Van Wyk, the Intervenors will appeal the DOAH decision to “District Court and beyond.”
Because the final decision on Van Wyk’s order could affect the Circuit Court cases, McLaren said, “What makes sense is let’s get that [DOAH issue] behind us.”
“You’re asking me to basically stay this case for a year or two?!” Carroll responded.
“I don’t know how long it will be, your honor,” McLaren replied.
An appeal to one of the state’s District Courts of Appeal typically takes a year, Carroll pointed out.
“We don’t think it’s appropriate for the court and the parties to do all this labor that could be impacted by a subsequent ruling,” McLaren said, adding, “We think the administrative law judge erred. … It was a very deferential abuse of discretion on a fairly debatable review standard.”
The plaintiffs in the two Circuit Court cases already had filed “Notices of Supplemental Authority” in the Circuit Court, pointing to Van Wyk’s decision, McLaren said.
When Carroll asked whether McLaren had talked with Pearce and the attorneys for the plaintiffs about the potential delay of their trial for a year or two, McLaren replied, “We’ve talked to the county, your honor. We have not talked to the plaintiffs.”
Ramirez attorney Grosso told Carroll, “I think we’re going to object strenuously [over] putting this case on hold for that long. It’s cost my client a lot of money, a lotof time out of her life.” He also called Van Wyk’s ruling “highly persuasive and authoritative.”
Moreover, Grosso continued, no appeal could be filed until after the Administration Commission issued its final order on Van Wyk’s ruling.
Assistant County Attorney Pearce said he had conferred the previous day with the clerk for the Administration Commission about the potential date when that group would rule. His understanding from the clerk, he said, is that the next commission meeting is set for May 23.
Grosso countered that, based on his experience with DOAH cases, no one could predict at this point whether Van Wyk’s decision would be considered on May 23.
After that May date, the next commission meeting is set for August, Pearce noted.
‘No need to wait’
Grosso told Carroll, “There’s no need for you to wait a year for that [DOAH] case to play out.” Grosso stressed, as well, that the final DOAH ruling was a separate matter from the court cases and that it would not be binding on Carroll. “You have the authority to void out a development order,” Grosso added, referring to the County Commission’s approval of the hotels. “This is the more impactful case, this one that you’re presiding over.”
David Smolker, the lead attorney for the three plaintiffs in the second hotel case, agreed with Grosso.
That second case was filed over both the Calle Miramar hotel project and the County Commission’s Nov. 2, 2021 approval of a seven-story, 120-room hotel planned on slightly more than an acre at the intersection of Old Stickney Point Road and Peacock Road, .
Smolker’s clients are Robert Sax, a resident of the Marina Del Sol condominium complex, which stands east of the hotel site on Old Stickney Point Road; the Marina Del Sol homeowners association; and 222 Beach Road Owners Association. The condominium complex standing at 222 Beach Road is close to the Calle Miramar hotel site.
“I don’t see that a stay is necessary,” Smolker told Judge Carroll.
Carroll ultimately agreed to revisit the issue after the Administration Commission’s decision has been made public.
He asked the attorneys to file briefs on that ruling seven business days before he plans a hearing in mid- to late June or early July on the summary judgment motions that the parties have filed in Ramirez’s case.
“Summary judgment” refers to a ruling on a legal complaint without the need for a trial. The presiding judge considers the documents and briefs filed in a case, as well as statements made during oral arguments, before issuing a ruling.
The Circuit Court judge who previously presided over the hotel cases — Stephen Walker — recused himself in late March after learning that an attorney with whom he has a personal and professional relationship would be joining the Intervenors. That attorney — Charles D. Bailey III of the Sarasota firm Williams Parker — was part of the project team for the Old Stickney Point Road hotel.
Walker had conducted about three-and-a-half hours of oral arguments on the summary judgment motions on Jan. 6, but he had not issued a decision prior to his recusal.
During the April 20 hearing, Carroll learned that no transcript of those oral arguments had been prepared. Therefore, attorney Smolker suggested that he could talk with the court reporter who handled that hearing and perhaps all of the attorneys could share the expense of the production of the transcript.
The attorneys also agreed that the oral arguments they would present in June or July would not take nearly as long as those in January.
Further, Carroll won the attorneys’ agreement that the two hotel cases still should be consolidated for a bench trial, meaning no jury would be involved.
However, while Walker had scheduled the trial during a period beginning on Oct. 9, Carroll noted that his calendar would not allow for that, unless the attorneys believed that it would take no more than a day or two, at the most. He referenced “the thousand new cases that I got” assigned to in March, plus the fact that he would be presiding over a trial already scheduled for October that would take two months — unless the attorneys in that case reached a settlement beforehand.
Ramirez attorney Grosso noted the fact that, if Carroll narrowed the issues in his summary judgment ruling, that would reduce the amount of time necessary for the trial.
It is also possible, as indicated by the discussion, that a ruling for Ramirez or for the county would eliminate the need for a trial altogether.
Carroll told the attorneys that the earliest trial period he had that would be clear for the case would begin on Nov. 13. None of them objected to that timeline.