Gateway Sun

This Thursday we’re going to find out how just how far Gateway’s lawyer Anthony Pires is willing to go to keep GSCDD Chairman Margaret Fineberg happy.

Recently the Gateway Sun demonstrated that the initial basis for the Stoneybrook street parking ban was dubious. After reviewing a 2009 memo from Gateway’s engineering firm Tetra Tech – in which they cited Lee County Ordinance 24-29 as the district’s justification for the parking ban and the placement of street signs within Stoneybrook, we pointed out that 24-29 simply does not contain the language that Tetra Tech claimed it did.

The flawed Tetra Tech memo was part of a massive cache of GSCDD documents on the topic of Stoneybrook street parking.

And unless I missed it going through all of those documents, at no point did Pires ever support Tetra Tech’s interpretation of 24-29. Which is notable.

Pires has instead cited Florida Statute 316.2045(1) throughout the years to justify a street parking ban on the district-owned roads in Stoneybrook, but somehow nowhere else in the district. That specific law states:

It is unlawful for any person or persons willfully to obstruct the free, convenient, and normal use of any public street, highway, or road by impeding, hindering, stifling, retarding, or restraining traffic or passage thereon, by standing or approaching motor vehicles thereon, or by endangering the safe movement of vehicles or pedestrians traveling thereon; and any person or persons who violate the provisions of this subsection, upon conviction, shall be cited for a pedestrian violation, punishable as provided in chapter 318.

Pires was confronted by a Lee County attorney via email on February 22, 2017. In response Pires pointed to the above law and then cited two cases to back up his position … Reid vs State of Florida and Thunderbird Drive-in Theater Inc vs Reed.

While researching the Thunderbird ruling I discovered that 316.2045(1) has actually been ruled upon over and over and over in trials throughout Florida.

But all of the rulings (including Thunderbird) indicate that Pires must have over-looked something.

What the courts have found is that the key word in 316.2045(1) has been deemed to be: willfully.

Willfully.

That single word will be what finally ends the street parking ban in Stoneybrook after all these years.

Here’s why …

In Thunderbird and Reid, along with Covington v. State, 728 So. 2d 1195, 1196 (Fla. 4th DCA 1999) as well as State v. Constant, 2 Fla. L. Weekly Supp. 407 (Fla. 11th Jud. Cir. Aug. 26, 1994) and James UNDERWOOD, Appellant, vs. STATE of Florida, Appellee. No. 4D00-4160 – the courts ruled the same way every time when it came to 316.2045(1).

Here is some legalese from a review of the Underwood case that illustrates the rulings from a technical standpoint: Underwood contends that the statute’s use of the word “willfully” implies “an intentional act of an unreasonable character in disregard of a known or obvious risk of such magnitude as to render it probable that harm would follow.” Appellant asserts that his conduct in momentarily stopping his vehicle in the middle of the road, when traffic was minimal and only mildly affected, does not meet this criteria.

Keep in mind that Underwood had stopped in the middle of the street. He was not safely parked on the side of the road. But because Underwood’s reason for stopping in the middle of the street had nothing to do with willfully disrupting traffic he was found by the appeals court to be not guilty of 316.2045(1).

Covington was “probable cause for traffic stop found where facts showed that defendant stopped car in roadway with driver’s side door open and his foot on the road, causing traffic to be blocked.”

Constant? “probable cause for traffic stop found where defendant left his car unattended in the middle of an intersection of two roadways maintained by traffic control lights, which caused traffic to slow down and to go around the defendant’s vehicle.”

In Reid a juvenile deliberately stood in the middle of the street and made cars go around him.

Now here’s what it all means in plain English: When your mother comes to visit and parks her car in front of your house… in order for her to be guilty of 316.2045(1) the State of Florida would have to prove that your mom did not park there with the intention of spending time with your family … but rather the reason your mom parked her car there was for the specific purpose of disrupting the flow of traffic.

As Pires would no doubt remind me, I do not have a law degree. But all of those judges do. And so does the Lee County attorney who exchanged emails with Pires.

If Pires sticks to his guns then Pires is either going to have to A) state that in his legal opinion, all of the judges in the above listed cases were all incorrect – and that he is correct; or B) tell people that his legal opinion this whole time was that everyone who has ever parked on the side of a street in Gateway did so to willfully disrupt traffic.

So what happens next in this nearly 8-year-old saga?

The Board of Supervisors meets on April 20 at 3pm and this topic is on the agenda.

Maybe Pires will make it easy for the board and privately admit before Thursday’s meeting that he didn’t consider the key term “willfully” strongly enough and thus his legal opinion doesn’t jive with established precedent. If that happens then I’m sure the Supervisors will move quickly at the GSCDD meeting to get rid of the street parking ban and the signs.

But if not then the Supervisors will have until Thursday to fact-check everything I’ve said here, or do some additional or independent research, and make a decision on what they believe is the right thing to do.

Now that the utilization of both Lee County Ordinance 24-29 and Florida Statute 316.2045(1) have been debunked, and those are the only two laws anyone involved was standing on, it’s difficult to imagine how anyone could still say the street parking ban is legal.

And up until today the Supervisors could tell Stoneybrook residents “hey I really didn’t know for sure”… and that’s probably true for 4 of them.

But now that they do know … the board will have to decide if they want to willfully continue to perpetuate an illegal street parking ban on the public roads in Stoneybrook.

About Jeff Kuntz

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Editor of the Gateway Sun and owner of restaurant delivery service Florida Food Runner.

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