Hearing still scheduled for Oct. 7

North Beach Road and Cosentino Charter amendment cases consolidated

By Rachel Brown Hackney

Following a Sept. 9 hearing in the 12th Judicial Circuit Court, Judge Andrea McHugh consolidated both the cases involving Siesta resident Mike Cosentino.

The actions will proceed under Cosentino v. Sarasota County, she wrote in the order she issued later the same day.

Additionally on Sept. 9, McHugh formally discharged Cosentino’s third attorney — Fred E Moore of Blalock Walters in Bradenton — from any further responsibility in the representation of Cosentino. That means Cosentino will proceed pro se, “until such time as he may otherwise choose,” McHugh added.

Pro se means Cosentino will be representing himself. He filed a motion earlier this summer seeking that ruling from McHugh, saying he felt that would be better protection for his rights.

In June 2016, Cosentino filed a complaint against Sarasota County, arguing that the County Commission violated a Comprehensive Plan policy when it voted 4-1 to vacate a 373-foot-long segment of North Beach Road. His original attorney was Ralf Brookes of Cape Coral. Attorney No. 2 was Lee Robert Rohe of Big Pine Key. Cosentino fired Rohe in the spring, telling McHugh during the June 25 hearing that he had concerns that Rohe was suffering from a cognitive disorder.

(Cosentino told SNL last year that Brookes needed to step away from the case because of a family issue.)

Cosentino already had been representing himself in the other lawsuit that McHugh consolidated with the original one. Filed in October 2018 and amended just before the end of 2018, that second complaint argues that two Sarasota County Charter amendments Cosentino wrote contravene state law. He was able to get them on the November 2018 General Election ballot, and voters approved them.

One calls for the county to rescind the vacation of the segment of North Beach Road or reacquire that part of the road. The other Charter amendment prohibits the County Commission from selling any county lands that have so much as a waterfront vista.

The lawsuit over the amendments was filed by the Caflisch family, which owns property on the vacated part of North Beach Road. The county has supported the Caflisches in their view of the Charter amendments, which has propelled Cosentino to public criticism of the County Commission and the Office of the County Attorney.

In one other Sept. 9 ruling, Judge McHugh reserved court dates in the spring of 2020 for a potential jury trial in Cosentino v. Sarasota County. That order calls for a pre-trial conference on March 31, 2020 and the start of the trial on April 27, 2020, with “3+” written in as the potential number of days needed for the hearing of the case.

In a statement he provided to SNL on Sept. 11, Cosentino wrote, “One must, at the outset, demand a jury trial.”

He added that he filed such a demand in his answer to the Caflisch complaint, just as he had done in the original North Beach Road case.

“I think it’s important that the voters who overwhelmingly supported [Reopen Beach Road’s] public protections have the opportunity to adjudicate this matter under the guidance of Judge McHugh.”

Reopen Beach Road is the nonprofit organization Cosentino established in June 2016 as he began his efforts to overturn the County Commission’s road vacation decision.

Nonetheless, he continued on Sept. 11, “I think we will win on motions before this gets to a trial. The challenges to [the] charter amendments simply have no merit. We look forward to proving that to the judge in the coming months.”

Cosentino is not the only party in the case who believes the issues will be resolved without a trial.

SNL also asked for a statement from the Caflisches’ attorney, S. William Moore of Moore Bowman & Reese in Sarasota.

“We believe this matter is more appropriately decided by the Court, since it is a question of law, not fact,” Moore wrote in a Sept. 11 email.

He added, “We have a dispositive hearing set on the legal issues (which date may be moved) that will be heard by the Judge only before any jury trial can occur.”

The Cornell Law School Legal Information Institute explains, “A party may make a motion for summary disposition asserting that the undisputed pleaded facts, admissions, affidavits, stipulations, documentary evidence, matters as to which official notice may be taken, and any other evidentiary materials properly submitted in connection with a motion for summary disposition show that:

“(1) There is no genuine issue as to any material fact; and

“(2) The moving party is entitled to a decision in its favor as a matter of law.”

In other words, a judge can throw out a case if all the facts of law related to the case make it clear that the case has no merit.

Moore was referring to the fact that Judge McHugh already had scheduled an Oct. 7 hearing on the June 19 motion Assistant County Attorney David Pearce filed, seeking final summary judgment in the Charter amendments case.

In his brief, Pearce explained, “The purpose of summary judgment is to avoid the expense and delay of trial when no dispute exists concerning the material facts.” He cited a 1954 Florida Supreme Court decision as the basis for that statement.

Pearce asked the court to “decree that the Charter amendments are inconsistent with state law and vague.”

For example, Pearce pointed out, Cosentino did not define “waterfront vista” in the amendments. “There is no standard given for determining whether a right of way includes a waterfront vista,” he wrote. “It is unknown whether such a determination is made [at] grade or at an elevation along a right of way. It is unknown as to whether there is a limitation on the distance from the right of way to the water body.”

Cosentino also indicated to SNL that the October hearing might be moved to another date.