The city of Cape Coral is now facing a second lawsuit challenging a policy that allows the Cape Coral City Council to impose attendance bans on those accused of violating its rules of decorum.

Saying the bans are unconstitutional, Michael Thompson, chairman of the LeeGOP Executive Committee, filed suit this morning as a private citizen.

“I filed this personally, this has nothing to do with the Lee Republican Party,” Thompson said in a telephone interview.

He expects the courts to quickly find that the portion of the city’s rules of procedure that provide for bans ranging from 30 to 90 days are an abridgment of rights guaranteed by the First Amendment and the state constitution.

“It’s 1,000% unconstitutional and we have precedent after precedent after precedent after precedent that this is unconstitutional,” Thompson said. “This is going to end pretty quick. This is not even going to stand.”

He said he understands that Council can ask a person to leave a meeting or even have them arrested for disruptive behavior. However, any policy or rule that allows an elected board to prohibit attendance at subsequent meetings is illegal.

“We have to push back against this. People may get passionate when they speak, we get that, but to ban someone from coming to a government meeting? You can’t do that. The ban is just unconstitutional.”

The amended complaint was filed by attorney Anthony F. Sabatini in the Circuit Court of the Twentieth Judicial Circuit. It alleges a violation of the First Amendment and the Florida Constitution and a deprivation of rights and so requests a preliminary injunction by the court.

The suit seeks a declaratory judgement finding that the portions of the “Council Agenda Rules of Procedure” pertaining to the bans be declared unlawful and injunctive relief to prevent the city from enforcing the provisions.

It further requests a jury trial, damages, reasonable attorney fees and “any other relief the court deems just and proper.”

As per its policy on pending litigation, the city declined comment.

“The City of Cape Coral has not been served with the lawsuit, but irrespectively, does not provide comment(s) on litigation that is actively pending,” the city’s Communications Office said.

It is the second lawsuit contesting the portion of the policy that pertains to the meeting bans.

The first was filed by a resident who was escorted out of a City Council meeting and then not allowed to attend subsequent meetings.

Scott Kempe, during the Oct. 11 Cape Coral City Council meeting, spoke about Jaycee Park during public input.

He returned to his seat where he later turned his back to the dais.

“Kempe felt that his government was discounting the feedback of its citizens. Kempe turned around in his seat and sat backwards at some point during the meeting to silently protest,” according to his legal complaint.

Kempe then tried to attend the Oct. 18 Council meeting and was told to leave pursuant to Council rules which, at that time, banned ousted residents from meetings until Council voted to allow them back in.

Kempe showed up for the Dec. 13 meeting and “advocated for his rights” as he said he was informed the ban was improper because the then-rule regarding Council approval to return called only for a vote to be allowed back into the same meeting.

He was arrested and issued a “Notice to Appear” on charges that included resisting/obstructing an officer without violence and trespassing.

The charges were dismissed on Jan. 25 for “insufficient evidence.”

Council modified the rules to specify how meeting bans were to be handled.

According to the city’s new rules, those who are “boisterous or disruptive in any manner to the conduct of a meeting” and so are asked to leave will be issued a trespass warning and barred from future meetings, with the length of the ban dependent on whether the person was also arrested.

Those removed but not arrested are barred from all meetings for 30 days from the date of removal for a first offense as determined by the mayor or other presiding member of Council.

They will be barred for 60 days for a second offense.

A third offense within a year of the first violation results in being barred for 90 days and requires the person ousted to petition Council “stating the reasons why they can attend Meetings without violating these Rules.”

Council then decides whether that person will again be “allowed” to attend Council workshops and meetings.

If arrested, the person is barred until a final disposition of the criminal charges related to the ouster. After disposition by the court, the person is required to petition Council “stating the reason(s) why they should be permitted to attend future Meetings with City Council” with Council to then “decide whether the person is permitted to attend future Meetings of the City Council.”

The First Amendment Foundation, meanwhile, has sent a letter to the city calling the ban “excessive” and strongly urging a rework of the recent rule changes.

The consequences portion of the policy Council enacted in February allowing for bans of 30-90 days “is excessive and does not leave a private citizen ample alternatives that would allow such persons to participate in the free expression of ideas,” the April 11 letter states, concluding the ban time periods “could unlawfully infringe on private citizens First Amendment rights.”

The four-page communication cites various legal precedent and is signed by FAF Executive Director Bobby Block.

The First Amendment advocacy organization also has offered to assist the city with any revision effort.

“In conclusion, we strongly urge the City of Cape Coral to rework subsection T to conform to federal and state law and to reconsider the ban time periods as it could unlawfully infringe on private citizens First Amendment rights and their ability to freely participate in the free flow of expression and ideas. We understand the City has a right to maintain order and decorum to enhance Council meetings. Therefore, FAF is available to assist the City on crafting and or discussing the Council Rules as the resources of The First Amendment Foundation are available to everyone in the Sunshine State.”