County: Brown didn’t follow rules

 

County: Brown didn’t follow rules

 

Date: November 3, 2011
by: Rachel Brown Hackney | Managing Editor

 
 

 

In an Oct. 27 answer to a lawsuit filed Oct. 4 by Village property owner Chris Brown, a Sarasota County attorney said Brown did not pursue the appropriate recourse in contending the county had charged him excessively high parking assessments for three of his businesses.

The attorney also said Brown’s complaint that the county violated his Fifth and 14th Amendment rights does not adhere to a federal law requiring “something more than naked assertions or legal conclusions framed as factual assertions that only create a suspicion” of a right to legal recourse.

Because of Brown’s allegations that his constitutional rights were violated, the county was able to move the case to the U.S. District Court in the Middle District of Florida in Tampa. Brown’s attorney, Morgan Bentley, of Bentley & Bruning, filed the suit in the 12th Judicial Circuit, in Sarasota.

Writing for the county, Deputy County Attorney David M. Pearce asked that the court dismiss all the counts for “lack of subject matter jurisdiction” under federal rules or order Brown to provide a more definitive statement under federal rules.

Brown filed his third lawsuit against the county about four months after the county paid him $2,500 to settle a claim in his second lawsuit against the county. That second suit, filed Jan. 31, contended the county had overcharged him for parking assessments. The third suit said the county again had charged him too much for parking, this time, for three of his Village properties. Conversely, the third lawsuit asserts the assessments for 74 other properties in the Village’s Parking Improvement District went down.

As part of the third lawsuit, Brown claims one of his properties, Blu Smoke on Avenida Messina, saw its parking assessment rise almost 1,500% from 2010 to 2011.

The third lawsuit also points to a pattern of discrimination against Brown, going back to the fall of 2007, when disputes among county officials over parking for The Hub Baja Grill forced Brown to delay opening the restaurant for three months.

The answer provided by Pearce said the Sarasota County Commission certified the 2011 parking assessments following a Sept. 12 public hearing. Although Brown had 20 days by law to contest the assessments, the answer says, Brown did not file his complaint until Oct. 4, after the deadline.

“There is no mention (in the complaint) of (Brown’s) protesting the tax or special assessment at public hearing, which (Brown was) required to do in order to bring suit,” the answer stated. “The Uniform Assessment Collection Act provides the right to appear at a hearing and to file written objections prior to the adoption of the non-ad valorem assessment roll.”

Further, the answer states, courts have upheld the right of counties to implement time periods for appealing assessments, “to protect themselves from untimely attacks.” The answer also points out that “special assessments are not considered to be taxes, and therefore the remedies (afforded under state statutes) to challenge taxes do not apply” to the Siesta Village Parking Improvement District.

“On the merits, (the answer) might raise some interesting legal issues,” Bentley said. “The county’s position is that (Brown) should have filed a … petition (contesting the assessments), but that would be directly contrary to the (Value Adjustment Board’s) ruling last year that it had no jurisdiction over this dispute. Another Catch-22 situation for (Brown).”

Brown said this week Bentley had written Pearce in July to complain about the latest parking assessments, but Pearce had not advised Bentley to go to the VAB before pursuing legal action.

In the answer, Pearce also writes the factual allegations in Brown’s third lawsuit had been the basis for the two previous lawsuits against the county, the first of which also involved the U.S. District Court in Tampa. Pearce pointed out that the county settled that suit through mediation. The county paid Brown $35,000, and the County Commission approved other stipulations, including the vacating of its portion of the right of way along Ocean Boulevard necessary to accommodate the patio and railings at The Hub.

As part of the settlement, Brown also signed a release of further claims against the county. That release, dated Jan. 11, 2010, is attached to Pearce’s answer.

Pearce further notes the settlement of the parking issues in the second lawsuit.

In the answer, Pearce said the five counts of the third lawsuit “are a commingling of more than a single set of circumstances, which are not separated by occurrence …”

“No matter what the court does with this, we will proceed under whatever avenues are open,” Bentley said. “It is just too egregious not to.”

 

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