With Oct. 3 deadline looming, North Beach Road lawsuit still not served on county as of Sept. 29

In the meantime, plaintiff Mike Cosentino has responded to a countersuit and continues with his petition drive

The view of the abandoned segment of North Beach Road segment looking north shows mostly sand. File photo
The view of the abandoned segment of North Beach Road segment looking north shows mostly sand. File photo

Facing an Oct. 3 deadline to serve legal papers on Sarasota County, the attorney for a Siesta Key resident challenging a County Commission decision in court still apparently has not resolved problems relating to the original documents filed with the Clerk of the Circuit Court, The Sarasota News Leader learned this week.

Ralf Brookes of Cape Coral misspelled the last name of Michael Cosentino when he filed a complaint on Cosentino’s behalf on June 10, alleging the County Commission violated the county’s Comprehensive Plan when it voted 4-1 on May 11 to vacate a 357-foot-long segment of North Beach Road.

Brookes also used “Michael” as his client’s first name, when that is Cosentino’s middle name. Later on June 10, Brookes did file an amended complaint with the correct information.

However, after Brookes filed a summons in the case on Sept. 27, calling for the county to respond within 20 days after service of the suit, a notation in the case file said the summons could not be issued because it “does not match complaint.” That summons, which is electronically time-stamped at 12:10:43 on Sept. 27, shows a strike through the name “Michael Consentino” and, immediately below, the name, “John Michael Cosentino.”

Mike Cosentino. File photo
Mike Cosentino. File photo

The court file shows a second summons — also time-stamped at 12:10:43 on Sept. 27 — that lists both Michael Consentino and John Michael Cosentino as “Plaintiff.”

Brookes did not respond to a News Leader message seeking comment. In a June 15 telephone interview, he told the News Leader he had cleared up the technical issues the Clerk of Court’s Office had noted with the original filing and indicated service of the complaint no longer should be an issue. He added that he had 120 days within which to seek that service.

In response to a general legal question about the situation with the latest court records, Sarasota attorney Morgan Bentley of Bentley & Bruning wrote the News Leader in an email, “[T]hat is an easy fix. … [J]ust change the summons.”

As of late morning on Sept. 29 — just before the News Leader’s deadline this week — the county still had not been served with the suit, spokesman Jason Bartolone told the News Leader.

In the meantime, Charles Bailey III of the Williams Parker law firm in Sarasota did meet county staff’s Sept. 26 deadline to deliver the necessary documentation for the county to record the easements his clients proffered in their petition for the road segment vacation. County spokesman Drew Winchester told the News Leader on Sept. 27 that Lin Kurant, the county’s Real Estate Services Department manager, had confirmed that action.

Those easements are to ensure the public will continue to have access to the vacated section of the road as well as to a 5-foot-wide path across private property from the road to the Gulf of Mexico, as agreed upon by commissioners and Bailey on May 11.

This is a copy of one summons attorney Ralf Brookes filed on Sept. 27. Image courtesy Sarasota County Clerk of Court
This is a copy of one summons attorney Ralf Brookes filed on Sept. 27. Image courtesy Sarasota County Clerk of Court

Another part of the case

Even though Cosentino’s complaint against Sarasota County remained in limbo this week, Brookes has been at work, seeking the dismissal of a counterclaim that one couple among Bailey’s clients filed against Cosentino and the corporation Cosentino established on June 22, Reopen Beach Road Inc. (Although the Florida Division of Corporations has classified Reopen Beach Road as a “Domestic Non-Profit,” Guidestar, which is recognized as the definitive source of information on nonprofit organizations, does not have any documentation on it at this point, a News Leader search found.)

The house owned by the Maddens on North Beach Road has rental units. File photo
The house owned by the Maddens on North Beach Road has rental units. File photo

In a Sept. 15 filing, Brookes argues that the attempts by Dennis and Wendy Madden to stop Cosentino’s efforts to reverse the County Commission’s May 11 action constitute “a prior restraint on freedom of speech which has been condemned by the Supreme Court of the United States under the United States Constitution …” The Maddens own property at 89 Beach Road.

On Aug. 24, Tommy E. Gregory, an associate with the Williams Parker firm, filed the counterclaim, alleging that the efforts of Cosentino and Reopen Beach Road to obtain signatures of Sarasota County citizens on petitions for two amendments to the County Charter “have been and are fraught with false statements and deceptive advertising …”

During the County Commission’s Aug. 23 regular meeting, the Maddens’ attorney, Bailey followed Cosentino and a number of opponents of the road vacation to the podium during the Open to the Public portion of the meeting. Bailey told the board members that he wanted to try to dispel what he called “fantastic lies” being spread by Cosentino and others.

Brookes originally filed his Motion to Dismiss the Maddens’ counterclaim on Sept. 15. The following day, however, he filed an amended Motion that included the allegation that the Maddens’ action violated the Strategic Lawsuits Against Public Participation (SLAPP) provision of the Florida Statutes. That law — 768.295 — says, “It is the intent of the Legislature to protect the right in Florida to exercise the rights of free speech in connection with public issues, and the rights to peacefully assembly, instruct representatives, and petition for redress of grievances before the various governmental entities of this state as protected by the First Amendment to the United States Constitution and … the State Constitution.”

Ralf Brookes. Image from his law firm's website
Ralf Brookes. Image from his law firm’s website

The statute also provides for “expeditious resolution” of any SLAPP claim.

In his Aug. 24 filing, Gregory had asked 12th Judicial Circuit Court Judge Rochelle Curley for an emergency injunction to prevent Cosentino and Reopen Beach Road from continuing their petition drive, but Curley denied that request. Instead, she ordered the regular scheduling of a hearing on the matter.

Brookes contends in his motion that “a temporary injunction directed to political speech is a classic example of prior restraint on speech triggering First Amendment concerns,” citing a series of legal precedents to back up his assertion. He points out, “Political speech includes political ‘pamphleteering’ whether it appears on a printed flyer that is distributed by hand, appears on a poster or appears on the internet.”

He adds, “Importantly, although perhaps counter-intuitively, protection against prior restraints on political speech extends to even false statements.”

Brookes also argues in his Motion to Dismiss that the “distribution of pamphlets and collection of signatures for a proposed referendum by Cosentino and Reopen Beach Road, Inc. has been lawful and orderly …” He writes, “Empassioned political debate is a hallmark of American politics and jurisprudence.”

He further argues that among other requirements, to state a cause for injunctive relief, a party must prove that “he will suffer irreparable harm”; “he has a clear legal right to the relief granted”; and that “a temporary injunction will serve the public interest.” The Maddens’ claim fails to meet the tests, he writes.

Furthermore, the language Cosentino and Reopen Beach Road have included on the petitions, Brookes contends, is exactly what would appear on the referendum ballot. The required official review of ballot language prior to the holding of a referendum does not include a review of any advertising for or against the issue, he writes, “merely the ballot summary and charter/constitutional referendum language itself.”

The petition drive

The Old Salty Dog restaurant, Blasé Cafe and Big Olaf's in Siesta Village are among businesses with signs urging people to sign the petitions for the charter amendments. Filephoto
The Old Salty Dog restaurant is among businesses with signs urging people to sign the petitions. File photo

The Sarasota County Charter amendments Cosentino and Reopen Beach Road are proposing not only would rescind the County Commission’s decision to vacate the 357-foot-long segment of North Beach Road — or force the county to re-acquire it — but also would make it impossible for this or a future board to vacate another segment of road on a waterfront.

Cosentino’s proposed Amendment 4.1 says, “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 or abutting any beach, river, creek, canal, lake, bay, gulf access or waterfront vista. The County shall encourage maximum right of way use for public access and viewing of waterfront vistas.”

The County Charter says a privately initiated amendment to the Charter may be put before voters if 5% of the registered voters in the county sign petitions seeking that action. A special election must be scheduled within 60 days after the filing of the proposed amendment with the supervisor of elections. Sarasota County Supervisor of Elections Kathy Dent has estimated the cost of a special election at $350,000.

As of Sept. 29, Cosentino had submitted petitions with eight valid signatures, elections office Administrative Assistant Cathy Fowler told the News Leader. He needs 13,866, she said. That figure is based on the number of registered voters during the last general election, which was held on Nov. 4, 2014, she explained. The Supervisor of Elections Office generally uses the count from the previous general election as the benchmark from which to derive the 5% figure, she added. The county had 277,321 registered voters as of Nov. 4, 2014, Fowler said.

When the County Commission held its regular meeting on Sept. 20, Cosentino arrived with a black trunk containing petitions. He told the board during the Open to the Public segment of the session that the documents represented the “many thousands of people who disagree with your vote on May 11, that we’re still trying to fix.”

A News Leader check of the Reopen Beach Road website showed 22 businesses where registered voters may sign petitions. Alternatively, people may download them from the website and fill them out.

In response to a question from the News Leader, County Attorney Stephen DeMarsh wrote in a Sept. 29 email, “I do not believe that the Charter establishes a deadline” for filing petitions with the Supervisor of Elections Office for a citizen-initiated amendment. Regarding the News Leader’s follow-up query about whether Cosentino theoretically could take years to obtain the necessary number of signatures, DeMarsh added, “I don’t have an answer to your second question.”