Attorneys for the City of Cape Coral have threatened the clean water advocates who have filed a Petition to prevent removal of the Chiquita Boat Lock with a big bill if they lose. Attorneys for the City served what is called a “Safe Harbor” notice threatening to seek attorneys’ fees from the Petitioners. Yesterday, three of the Petitioners dropped out of the case in fear for their financial contributors.
Among the Petitioners threatened with attorneys’ fees, which may well go into the six figures, are two notable organizations with a decades long history of protecting our environment. Another is the Matlacha Civic Association. MCA was a successful petitioner in 2019 to prevent the first effort by the City of Cape Coral to remove the Chiquita Lock.
LEWIS, LONGMAN & WALKER, P.A., from Tallahassee is representing the City in the administrative proceeding before the Florida Department of Administrative Hearings (DOAH). The record at DOAH reveals that the law firm has six attorneys who have entered their appearance in the case. J. Michael Hannon, who is representing the Petitioners pro bono, along with a Florida noted public interest attorney, says that the City’s principal attorney appears to be “intentionally running up legal fees, taking hours in depositions, and pursuing useless minutiae.”
Most every state, says Hannon, including Florida, has legislation preventing what are known as SLAPP Suits. Florida’s legislative version prohibits any government entity, including cities such as Cape Coral, from bringing claims against citizens on account of their exercise of First Amendment rights. “This is a classic case of citizen advocates volunteering their time and resources to prevent Cape Coral from continuing to pollute our waters with outflow from its extensive canals. This is classic free speech.” The action by the City “certainly violates the spirit of the law as well as the First Amendment right to challenge government misconduct.”
Hannon has consulted with experts on SLAPP Suits. Unfortunately, the Safe Harbor notice may not technically be covered by the specific language of the Florida law. Hannon says that the organizational Petitioners, including MCA, areIRS 501(c)(3) not-for-profit corporations responsible to their contributors to protect their financial resources.
Late today, attorney Kevin S. Hennessy representing the City of Cape Coral, threatened further motions for sanctions against both the withdrawing Petitioners and the three individual Petitioners who remain. Not surprisingly, Hennessy said the City would withdraw their motions for sanctions if all the Petitioners drop the case and go away.
Cape Coral City Manager Michael Ilczyszyn appeared before both the Matlacha Civic Association and the Greater Pine Island Civic Association in April of this year, seeking to mend the longstanding conflict between the City and the islands of Matlacha and Pine Island. Perhaps Mr. Ilczyszyn is unaware that the remaining three Petitioners are longstanding Cape Coral residents.
The City of Cape Coral attorneys say the Petitioners’ claims are frivolous. How can that be when they won the last time around, defeating removal of the Lock in 2020.