1st District Court of Appeals puts city’s quest to recoup fees from ‘three fishermen’ on hold
The city of Cape Coral’s quest to recoup legal fees from a trio of residents who challenged the municipality’s bid to remove the Chiquita Lock hit a stumbling block Friday morning.
The 1st District Court of Appeals has stayed the proceedings and, as a result, the administrative law judge has canceled the final hearing that had been scheduled for Feb. 24-28.
The proceeding will remain in abeyance until the court determines whether the state’s Department of Administration Hearings has jurisdiction to determine whether the challenge to remove the lock filed by “the three fishermen” was frivolous or filed with malicious intent.
“The Mayor and the City Council, encouraged by the City Attorney, precipitated this appeal,” said attorney J. Michael Hannon, who represented Daniel Carney, James Collier and Kevin Sparks in their case contesting the city’s bid to remove the water control device in the South Spreader. “The Three Fishermen have been given no choice but to defend themselves against their own government at great personal cost.”
The order means the city’s fee petition at the Department of Administrative Hearings is stayed until the 1st District Court of Appeals decides whether the DOAH has jurisdiction to proceed with the hearing.
The next steps would be for the city to file an opposing brief with the 1st DCA within 15 days.
The legal team for the three fishermen then would have 30 days after that to reply.
Oral arguments then would be set, probably in Tampa, after which the appeals court would issue an opinion as to whether the DOAH has jurisdiction or not.
“If not, the effort to obtain fees by the city is over,” Hannon said.
A public records request submitted last year by The Breeze seeking legal fees and recoupable expenses produced a 31-page document that totaled a little more than $1.97 million expended by the city as of August.
Carney, Collier and Sparks have asked the city to stop its pursuit of the legal fees at numerous Cape Coral City Council meetings.
They have said that they accepted their loss and the removal of the lock will so happen, but are facing financial jeopardy for doing what they say was their due diligence in fighting for what they believe was the right thing for Cape Coral waters.
Collier, a 20-year Cape resident and former chairman of the Waterway Advisory Board, said they wanted the present lock system — inoperable since Hurricane Ian — replaced with a new, more modern and faster system.
Their argument was that the lock provides storm surge and water quality protection.
After a five-day hearing late last year, an administrative law judge voted in favor of the city, which has since sought to recoup its legal fees through the same administrative law judge, Suzanne Van Wyk, with the DOAH’s Tallahassee office.
The petitioners contend she no longer has jurisdiction in the case.
Her recommended order finding for the city in its removal effort was issued without reference to any improper purpose as required by state statutes, contained no findings of frivolousness as required by state statute, did not award fees, and did not reserve any jurisdiction to make any of these findings or award fees later, their petition to the 1st District Court of Appeals states.
As per policy, city officials declined comment.
“The recovery of the City’s attorneys’ fees and costs remain pending for this Administrative Proceeding. As such, the City does not provide comment on pending legal matters,” the city’s communications office said via email Monday.
Editor’s note: This story has been updated with a response from the city.
(Information from a previous report by CJ Haddad is included in this story.)
To reach VALARIE HARRING, please email vharring@breezenewspapers.com