Bonitamedia’s Weblog

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David vs. Goliath

This is a true story about a small businessman (me) fighting for not only my rights, but the rights of anyone living in or passing through, Collier County, Florida vs. the same county. Said county has 5 elected commissioners- all Republican (as I am) that run the county and are supposed to be held accountable for their actions.

The names have not been changed. No protection is offered to anyone….

I own a small mobile-billboard company in Bonita Springs, FL. We use tri-vision style signs (very similar to traditional road-side billboards) built into Dodge Sprinters or Ford vans and drive our clients messages around in a fluid method that can not be achieved any other way. Early in December, 2006 I received 2 very distinct voice mails from Code Enforcement Officer Kitchell Snow. Both messages were harsh – almost abusive in tone. In the first message, Mr. Snow told me he would find me, cite me and take me to court (almost like he was on a mission). The second message let me know he did find me, that he would take me to court and win, and he couldn’t understand why I didn’t believe him or take him seriously. Both messages have been saved in many different places, however they were never presented to his superiors. On December 14th, 2006, Collier County Code Enforcement cited me under their Land Development Code (which states it is designed to protect real property) for having a sign with “motion or the illusion of motion”. The code enforcement officer (Mr. Snow) took pictures and filled out the citation as “the real property located at: transient and itinerent in nature.”

Now – I am not a rocket scientist, but I am an intelligent human being (ok – keep the comments on that to yourself 🙂 ). I, to this day, can not figure out how real property can be itinerent or transient. By definition, real property is attached to the planet in one way, shape, or form by a method other than gravity. This ridiculous citation, with the associated $1,000/day fine for violating the code, is what started this whole thing running wild… However, I didn’t see much distinction between my signs and those on any other vehicle (IE FEDEX, UPS), so I kept on about my business.

I guess it was in April or early May 2007 when we (me and my attorneys, Richard Annunziata and Scott Duval from Brennan, Manna and Diamond) met with Code Enforcement Director Michelle Arnold and Collier Attorneys Jeff Wright and Jeff Klazgow. The purpose of the meeting, we were told, was to come to an agreement so we didn’t have to go before the Code Enforcement Board, Board of County Commissioners or head to court. In that meeting we offered a compromise. First, we offered to change the signs every 5 minutes instead of every 10 seconds. That wasn’t good enough. Then we offered to drive behind a shopping center and switch them,. Nope- not that either. Then we offered to drive into a garage, close the door, change the signs out of view of anyone and that too was shot down. We were told we had to drive back to Lee County to change our signs. We spent 3 hours trying to negotiate, because after all, we were told the purpose of the meeting was to negotiate a compromise. That was the first of many examples of the county’s inflexability.

We had our day in court – well – not really court, it was before the Collier County Code Enforcement Board (hardly an unbiased venue) in late May 2007. The CEB’s job is to determine if a code was violated – not to determine the validity of their own codes. The County Attorney is supposed to be able to help with that. We obviously lost that hearing (and expected to do so). We were also told we would be fined the $1000/sighting if we were caught turning the signs. The CEB actually felt we were getting about $500/day per client and they wanted to fine me $5,000/sighting. No abuse of power here!

So off we go, being good little lemmings and doing what Collier County required. They assign their first attorney to the case. Negotations go back and forth and legal fees cross $50k. We tell the first attorney our entire strategy, where the holes in the codes are and so on. We offered to drop the suits if they leave us alone. We also stated that when our fees cross 100k that we were headed to court. First attorney reports to the head attorney. Our offer is denied. The attorney is pulled from the case.

Second attorney lasted maybe 5 days. He must have figured they had no case and didn’t want to be a part of it.

Third attorney… we all meet in September at the offices of Brennan, Manna and Diamond in Bonita. We inform the 3rd county attorney we are about to cross the 100k threshold and after today negotiations would stop. He sees the “offending vehicle” up close and makes a comment in passing to this effect… “obviously the codes weren’t written for this”.

Again, the County Attorney’s office denied our requests to sttle this matter. We held true to our promise and filed everything in Federal and State Court. Had a hearing in Federal Court with Judge Steele. On February 13, 2008, Judge Steele ruled in our favor saying “the county has no interest in enforcing an unconstitutional sign code”(paraphrased). The entire ruling from Judge Steele can be read here:

Now Collier County brings in the 4th attorney…

Jackie Hubbard has a reputation for delaying, losing documentation, forgetting where negotiations have been or where they are going. Just the right person to handle a case like this! Well- she is if you want to either a) stick your head in the sand or b) run the oppositions legal fees up to the point where they can’t afford to fight. Their intentions were obviously B. Not out of ignorance mind you. She actually said she would drag this case on and on – years through the courts – with the intention of running our fees up so much we would be out of business. The time is now July 2008, 3 days before our scheduled mediation. Jackie Hubbard decided to bring this revelation to light in an attempt to get us to settle for an unreasonably low sum. We had approximately 1 hour to make a decision, or face the fact the County has limitless funds to fight legal battles with. Tough choices ahead!

Keep in mind, the County admitted the code was unconstitutional in their response to Judge Steel’s February ruling. At that point, wouldn’t it have made sense to end this? We would have settled for $225k back then, but the collective brainpans down at the Collier County Government Building felt compelled to keep fighting. So we hired experts to prove attorneys fees and damages (damages as of May 19, 2008 were over $250k), which of course drove our fees up.

Tuesday, September 9th was a very important day in this case. The Collier County Board of Commissioners voted unanimously to settle this dispute. More than a year and a half later, the Commissioners decided it was time to stop wasting money. It took them 7 months after Judge Steele ruled on the preliminary injunction and the County responded by admitting the Constitutional faults. The $225,000 settlement covers my legal fees only. It does nothing to cover the 1/4 million in lost profit.

Friday September 12, 2008 – I was advised that Jackie Hubbard is looking to play games. You gotta love this! The agreement the Commissioners signed has the county paying the $225k, then when the funds clear, we dismiss the case. Makes sense. However, we were just told the county won’t cut the check until after the dismissals have been recorded. Hmm… why play games? I really hope she wakes up. The headlines in the paper will read “County Renegs on Deal with Local Mobile Billboard Company!” That would be some great press!

Well – we decided to play nice and not force the issue. We put the dismissals in trust with the county until the funds cleared. Just another example of government kicking the people when they are down.

However, all is not lost. The legal system works. We have just proven that you truly can fight city hall and win. I have been asked if faced with this problem again, would I go through it? Absolutely! Chances are we will fight this again along the way somewhere. But I am glad to say that we fought the fight, we won, and American everywhere can use (and are)this case to prove their points and keep government from over-stepping its boundaries.


October 29, 2008 Posted by | First Ammendment Battle in SWFL | , , , , , , , , | Leave a comment