Gateway District passes resolution to designate Stoneybrook a “Tow-Away Zone”

Posted on August 14, 2019, 7:16 am
22 mins

Normally I would save this for the end of the article, but this one is so long I’m moving it to the front to make sure people read it.

Personally, I am in favor of the Stoneybrook HOA being able to implement a full or partial street parking ban on the roads within that community. Or no ban at all. Whatever they want to do. I’m totally in favor of HOA control. Sadly, that’s just not the reality in Stoneybrook.

The time has come for the Stoneybrook HOA and Gateway CDD to combine efforts (and share costs) with the other communities in Florida who want their CDD-owned streets to be transferred to the applicable HOAs. Believe me, Stoneybrook is HARDLY alone in Florida when it comes to this issue.

To do that, the entities involved would need to petition the Florida Legislature to pass a law. And since making a law to enable this type of road ownership transfer would make too much sense, the Legislature would probably do it. There’s no reason not to.

However, until that happens, parking on Stoneybrook’s roads in accordance with Lee County parking ordinances is allowed 24 hours per day, 7 days per week. Despite what the Stoneybrook HOA plans to tell its residents in the coming days.

 


 

In an article published by the Gateway Sun on April 17, 2017 titled ‘Florida case law clearly shows Gateway’s lawyer is wrong on Stoneybrook parking’ I thoroughly debunked attorney Tony Pires (Gateway’s lawyer) legal theory that Florida Statute 316.2045(1) effectively banned street parking in Stoneybrook.

Pires has since abanonded FS 316.2045(1) as the justification for an improper street parking ban, but now he’s back with FS 190.012(2)(d).

Before you read any further, I need to state that I am not an attorney.

Contained in the agenda package for the August 1, 2019 meeting of Gateway’s Board of Supervisors, District Manager Chris Shoemaker wrote a memo to the board stating:

The Stoneybrook Advisory Committee has requested a towing policy and signage as a tool to enforce the “no street parking rule” on the streets of Stoneybrook.

Keep in mind that Vice-Chairman Bill Guy had advised Chairperson Margaret Fineberg a month prior that he would not be at the August 1 meeting. Supervisor Doug Banks had also advised Fineberg that he wouldn’t be present at that meeting in mid-July.

The GSCDD board’s standard practice had always been to delay major or contentious decisions until the full board was at a meeting. In 4-5 years of covering this board, they have never passed anything major with only three out of the five Supervisors present.

But Fineberg knew that between her and Supervisor Kathleen Flaherty – both vocal supporters of the Stoneybrook street parking ban – this was her opportunity to get something passed without opposition from Guy and Banks, both of whom object to towing vehicles.

The something that was passed was Gateway Resolution 2019-10.

If you want to save 5 minutes of reading and some brain cells, hit Control-F and search for “Lakeside Landings CDD” and skip down to that part.

Still here and want to get in to the weeds? Okay.

Gateway Resolution 2019-10 says: WHEREAS, Chapter 2016-94 Laws of Florida (CS/HB No. 971), effective July 1, 2016, amended Section 190.012(2)(d), Florida Statutes, authorizing the District to contract with a towing operator to remove vessels or vehicles from specific facilities or properties, subject to certain requirements including but not limited to authorization and notice and procedural requirements in Section 715.07 F.S. for an owner or lessee of private property.

But in order to get to 190.012(2)(d) we have to back up to both 190.012 and 190.012(2).

Section 190.012 is a set of “Special powers; public improvements and community facilities” that the Florida Legislature gave to CDDs in Florida, of which the Gateway CDD is obviously one. What it says is that “subject to the regulatory jurisdiction and permitting authority of all applicable governmental bodies, agencies, and special districts having authority with respect to any area included therein” (translation: as long as you get permission and approval from any applicable higher government agencies like Lee County or the State of Florida) that the state government will let CDDs make certain improvements within their district boundaries.

Section 190.012(2) says that: “After the local general-purpose government within the jurisdiction of which a power specified in this subsection is to be exercised consents to the exercise of such power by the district, the district shall have the power to plan, establish, acquire, construct or reconstruct, enlarge or extend, equip, operate, and maintain additional systems and facilities for:

And then 190.012(2) then lists a six specific areas where special districts like the GSCDD can make improvements.

(2)(a) is for Parks and facilities for indoor and outdoor recreational, cultural, and educational uses.

(2)(b) relates to Fire prevention and control, including fire stations, water mains and plugs, fire trucks, and other vehicles and equipment.

(2)(c) is for School buildings and related structures and site improvements

(2)(d) – the specific statute Pires is going with – is for Security, including, but not limited to, guardhouses, fences and gates, electronic intrusion-detection systems, and patrol cars.

(2)(e) is for Control and elimination of mosquitoes and other arthropods of public health importance.

And lastly, (2)(f) is for Waste collection and disposal.

Let’s focus on the section Pires is now citing. Up until July 1, 2016, FS 190.012(2)(d) said:

Security, including, but not limited to, guardhouses, fences and gates, electronic intrusion-detection systems, and patrol cars, when authorized by proper governmental agencies; except that the district may not exercise any police power, but may contract with the appropriate local general-purpose government agencies for an increased level of such services within the district boundaries.

As you can see, the improvements that could be made had nothing to do with parking. It just said that if you get permission from the higher-up governments, you can put in fences, gates, etc.

From July 1, 2016 onward, FS 190.012(2)(d) said:

Security, including, but not limited to, guardhouses, fences and gates, electronic intrusion-detection systems, and patrol cars, when authorized by proper governmental agencies; except that the district may not exercise any police power, but may contract with the appropriate local general-purpose government agencies for an increased level of such services within the district boundaries. However, this paragraph does not prohibit a district from contracting with a towing operator to remove a vehicle or vessel from a district-owned facility or property if the district follows the authorization and notice and procedural requirements in s. 715.07 for an owner or lessee of private property. The district’s selection of a towing operator is not subject to public bidding if the towing operator is included in an approved list of towing operators maintained by the local government that has jurisdiction over the district’s facility or property.

Pires seems to be saying that since a section of law that never had ANYTHING to do with parking on streets now contains a sentence which the Florida Legislature intended to prevent the State from stopping CDDs from towing abandoned cars at parks is somehow justification for creating a Tow-Away Zone for a residential roadway system which somehow supercedes established public street parking laws.

Remember, Pires lied to the Board of Supervisors and residents of Stoneybrook for approximately a decade regarding FS 316.2045(1). And it is my opinion that he lied, because the only other possibility would be that he was so inept as a lawyer that he did not understand the legal concept of “wilful” action. He seems to understand it now though, as FS 316.2045(1) is magically nowhere to be found in Gateway Resolution 2019-10.

Anyway, what happened at various points in time during the “Street parking isn’t allowed because of FS 316.2045(1)” decade was that FS 316.2045(1) was tested in courts throughout Florida multiple times, and case law was built. That’s how it was so easy to definitively debunk Pires’ legal position.

But FS 190.012(2)(d) is too new, and it doesn’t appear to have been tested in court as a justification to make every inch of road within entire communities a Tow-Away Zone.

So this time (while I have my suspicions) I don’t know if Pires is lying again or actually doing his best. But I do know Pires has not provided the same legal advice that other CDDs have been receiving about street parking bans on publicly-owned roads.

Meet the Lakeside Landings CDD in Polk County, Florida.

In 2018 they, too, wanted to create a street parking ban by making all of their streets one big Tow-Away Zone.

But the Lakeside CDD received legal advice that said they could not ban parking on public roads. (Go figure.)

Interestingly though, they were advised that they could create a Tow-Away Zone on ONE side of their streets since they would technically still be allowing parking on the CDD’s roads as required by Florida law.

Link (Page 7): http://lakesidelandingscdd.com/wp-content/uploads/2019/01/ll-agenda-1-16-18.pdf

In order create the Tow-Away Zone on one side of the streets however, Lakdeside CDD attorney Sarah Sandy of Tallahassee law firm Hopping, Green & Sams advised the Lakeside Board of Supervisors and community on November 14, 2018 that street signs would need to be placed at regular intervals along the residential roads where the Tow-Away Zone was intended. While costly, the Lakeside board nevertheless wanted to proceed and authorized $12,000 on November 14 to print the appropriate signage to be put up all along one side of each street in that community.

As for Gateway …

On August 1, 2019 the Gateway board approved a towing policy for GSCDD-owned roads in Stoneybrook by a 3-0 vote. Chairperson Margaret Fineberg, Supervisor Ed Tinkle and Supervisor Kathleen Flaherty voted in favor. As previously mentioned, Vice-Chairman Bill Guy had a planned absence and Supervisor Doug Banks was in Europe. Banks knew he wouldn’t be there so he provided a letter that was read aloud by Shoemaker which said Banks disapproved of Stoneybrook becoming a Tow-Away Zone.

One of the flaws in the policy that Banks noted from the GSCDD resolution is that there’s no description of what exactly constitutes an “unauthorized parked Vehicle or Vessel” that could be towed.

Banks wasn’t alone in thinking that the Resolution as written was flawed. Stoneybrook HOA President Andy Roosa and Stoneybrook Advisory Committee President Joe Mikulka both cried foul as well.

Except … while Banks thought the policy should specifically define what makes a vehicle unauthorized, what Roosa and Mikulka said was that they wanted a towing policy that would delegate the decision-making authority on when to tow vehicles to them.

Mikulka said there would be days and times the towing policy would be enforced, and times when it would not. Roosa said he had specific people in mind to enforce the policy on. Tinkle stated that he had been advised that you cannot selectively enforce towing regulations. The Gateway Sun has preserved the video of all this in the event a lawsuit is filed against the HOA and the Gateway District in which selective enforcement is argued.

In the end, the short-handed GSCDD board passed the resolution saying that all of Stoneybrook would indeed be designated as a “Tow-Away Zone” with the enforcement rules being left up to the discretion of the Stoneybrook HOA.

SO WHAT HAPPENS NEXT?

Despite what happened on August 1, the Gateway Resolution 2019-10 citing Florida Statute 190.012 doesn’t appear to be any more valid to ban street parking in Stoneybrook than Florida Statute 316.2045(1) was.

But I predict that unless they’re stopped, the Stoneybrook HOA is going to act like it’s the law of the land and – unlike parking tickets, which I told you they would never enforce and they never did – I believe the HOA will enforce the Tow-Away Zone.

The HOA will then blame the GSCDD if residents complain. And the GSCDD will say they were simply acting on the advice of their counsel. And the counsel will say unless and until he’s told he’s wrong in court that he’s standing by his opinion.

As I understand it, part of that said opinion is that they don’t even need to follow proper signage laws for Lee County and will rely on a single sign at the entrance of the community along with replacing the signs at the beginning of each street. But as the Lakeside CDD attorney advised the CDD that she represents, that’s not good enough.

No matter. Fortunately for the 24% of Stoneybrook residents who voted in favor of a street parking ban, Pires is above case law as well as all other attorneys in this state. So this thing is a go as far as the HOA is concerned.

Unfortunately for the 76% of Stoneybrook residents who want street parking, in my opinion the Gateway CDD is being given legal advice by an attorney who is trying to create a specific outcome at the behest of a board member, rather than relying purely on the law when it comes to this specific matter.

CAN STONEYBROOK RESIDENTS STOP THIS?

Sure.

Short term, the easiest way to stop this is for the HOA board to finally be replaced with sensible people. The GSCDD has (illegally in my view) handed over creating towing enforcement policy to the HOA, but as long as the HOA has people on it who don’t want to tow your car that will be that.

Longer term, Stoneybrook residents can hope that the 2020 Gateway CDD election will create a new board that views Gateway Resolution 2019-10 as legally dubious. But there’s no guarantee of that.

But right here and now … today … there are simply too many questions about all this, and when combined with Pires terrible track record of advice when it comes to this issue – in my view, it’s time for a second legal opinion. It should also be considered that 2 out of the 3 board members who voted on this action are Stoneybrook residents, creating a possible conflict of interest.

Tinkle has openly asked for a second legal opinion in the past. Hopefully if he did so again, Guy and Banks would finally stand up to Fineberg and Pires and join Tinkle.

It’s clear Fineberg used the fact there was a shortage of board members – something she knew in advance was going to happen, and this issue just happened to get on the August 1 agenda – to get the Tow-Away Zone passed through.

And it’s also clear other Florida lawyers are providing differing and in some cases opposite advice about parking on public roads than the GSCDD is receiving from their counsel.

Hopefully at this Thursday’s meeting your elected Supervisors will reconsider the position that the district adopted on August 1, and they will remember that you cannot ban parking on publicly-owned roads, despite what they’ve been told by Pires.

Is what they’re doing legal? No.

Do they care? Hell no.

Fineberg and the HOA have been waiting for this day for 10 years. They seem to have planned this vote for a meeting when Guy and Banks wouldn’t be there and assumed it would be 2-1. (Fineberg and Flaherty for, Tinkle against). But Tinkle trusted Pires’ advice about the Tow-Away Zone and went along.

It’s not too late for this board to reverse course, or at bare minimum get a second legal opinion before they tow the first car away. What’s wrong with looking in to it? Under normal circumstances the Stoneybrook HOA themselves should be pushing to make sure things are done right, but Roosa and Mikulka are so motivated to have towing power that they don’t want anyone to question Pires’ position.

But as this publication has repeatedly demonstrated through research, Pires is actively seeking ways to deviate from established application of parking rules on public roads.

But if nobody will stop Fineberg, Pires and the Stoneybrook HOA leadership, then they can effectively do whatever they want and cars will be towed out of Stoneybrook by the end of this year.

Make no mistake: Parking is legal on public roads in Florida 24 hours per day, 7 days per week. That has not changed just because a lawyer with an agenda says so.

But the Stoneybrook HOA soon plans to start towing your cars if you park on the streets in that community against the HOA board’s wishes… and I believe that once they start, they’ll keep towing cars until they are ordered not to by the GSCDD board or a Lee County judge.

The Gateway CDD needs to get a straight answer from an unbiased attorney before someone wakes up and their car is missing.

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

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