Multiple lawyers weigh in on Stoneybrook parking ban to GSCDD: “You can’t do that.”

Posted on September 19, 2019, 9:08 am
35 mins

Most of you reading this will have seen the 3-minute “Schoolhouse Rock – How a Bill Becomes a Law” video at some point in your life, depicting the journey of how a bill makes its way through the United States Congress to become a law.

The Gateway Sun is in possession of video which could be called “How Stoneybrook Gets a Towing Policy.”

It begins with Gateway Chairperson Margaret Fineberg sitting before the Stoneybrook Advisory Committee (SBAC) on May 22, 2019. Fineberg gets up and passes each committee member a document while explaining, “Apparently I was under the false impression that the [Gateway District’s] general towing policy that [Gateway’s attorney] Tony Pires had created also would have included Stoneybrook, but it did not. Now they’re having to do each and every segment. We did one roadway Commerce Lakes, we did the Fun Park, now I want to add Stoneybrook.”

Although Fineberg said she wants to create a towing policy for Stoneybrook, there is a large group of people who would be staunchly against that: namely, the people who live in that community.

In 2017 the HOA conducted a survey which had an extremely high of level of participation, and only 24% of those who responded agreed with Fineberg’s wish to ban street parking.

While looking over the document Fineberg handed out, committee member Warren Davies asked Fineberg the million dollar question: “Since Tony did it, I assume it complies with state law?”

But it turns out the Stoneybrook towing policy document Fineberg handed out actually wasn’t created by Pires.

Fineberg created it herself.

Fineberg explained to Davies, “I took – [Pires] sent me the one for the Fun Park, and I just merely changed the name from Fun Park to Stoneybrook.”

However, Fineberg may not have “merely changed the name” because just a few seconds earlier, Fineberg said while holding up the document, “It’s specific to the streets in Stoneybrook. And that’s what Exhibit ‘A’ is.”

The Fun Park towing policy did not contain an Exhibit ‘A’ which listed Stoneybrook’s streets. So along with changing the name on the document from Fun Park to Stoneybrook, Fineberg apparently also created or added an Exhibit ‘A’. Nor had the Fun Park towing policy document even been approved yet as Fineberg told the committee, since that approval took place two months later on July 18.

The SBAC approved the document by unanimous vote at that meeting on May 22.

(As a side note: I can’t imagine it will sit well with Supervisor Ed Tinkle to find out that he, as you are about to learn, voted to approve a legal document that was crafted by Fineberg, and not Pires.)

Now that the document had passed the Stoneybrook committee, Fineberg believed the document needed approval from Gateway’s Board of Supervisors. According to someone familiar with the situation, the Stoneybrook towing policy was supposed to be brought up to the Gateway board at their next meeting, which was on June 6.

Towing was in fact on the June 6 meeting agenda but only for the Fun Park. The Fun Park towing policy vote failed 2-2 with Fineberg and Tinkle voting in favor while Vice-Chairman Bill Guy and Supervisor Doug Banks voted against. Again, it’s not clear why Fineberg suggested on May 22 to the SBAC that the Fun Park towing policy was already in place, when the vote to approve it failed on June 6.

Fineberg had evidently punted on trying to get Stoneybrook approved for towing at the same time as the Fun Park. Fineberg may have calculated that Tinkle would realize there’s a stark difference between the Fun Park vote and the streets in Stoneybrook. Towing from a district-owned facility like the Fun Park and towing from public roads are apples and oranges, and Tinkle had long refused to tow cars away from public streets.

Although it failed on June 6 which usually would mean the issue was dead for the foreseeable future, the Fun Park towing policy found its way back on the agenda on July 18 and that time it passed 3-1 with Fineberg, Tinkle and Supervisor Kathleen Flaherty voting in favor while Banks once again voted against it.

That same month Fineberg saw her opportunity to get the policy passed in Stoneybrook as well. She had received advance notice that both Guy and Banks would be absent from the August 1 meeting. Fineberg knew that regardless of what Tinkle wanted to do, her vote along with Flaherty’s would be enough to create a 2-1 victory and the district would create a towing policy for Stoneybrook while Guy and Banks were absent.

The supposed basis for this new policy was that Pires implied that he had found an adjustment to a Florida Statute from 2016 that Pires said would allow Community Development Districts like the Gateway District to create tow away zones, including the one Fineberg wanted on Stoneybrook’s public streets.

Pires made his pitch on August 1 as planned and Tinkle, believing Pires’ legal advice, voted along with Fineberg and Flaherty to approve the legal document originally created by Fineberg and the Stoneybrook Tow-Away Zone was created on August 1 by GSCDD Resolution 2019-10 by a vote of 3-0.

The law that was changed that was pitched by Pires is FS 190.012(2)(d)… which this article will get to in a few moments.

The Gateway resolution essentially handed full authority over towing in Stoneybrook to the Stoneybrook HOA. And why not? At the August 1 meeting, SBAC president Joe Mikulka assured the short-handed Gateway board that Stoneybrook’s leaders would not be aggressive in their enforcement of towing. Mikulka went out of his way to convince the Gateway board that they would be quite lenient, in fact.

But according to videos obtained by the Gateway Sun, that may not be an entirely accurate reflection of the HOA’s plans.

On one video, the suggestion is made that Stoneybrook HOA president Andy Roosa would enforce an all-out towing ban beginning the very minute the policy took place.

On another video an SBAC member (whose name I do not know) gets quite uptight and wants assurances that all vehicles parked over-night would be towed away. That video was from Fineberg’s May 22 appearance before the SBAC – and Fineberg holds up the towing document to her and says “That’s what this is for.”

In yet another SBAC video, this one from August 7, Mikulka suggests “approaching this gradually” and seems to indicate the HOA’s policy would lead to an all-out ban in due course.

Circling back to the May 22 meeting… Fineberg, perhaps realizing her earlier comment sounded too ominous, said “This is not we’re gonna have people come through every night and tow people off the roads” when she is interrupted by a grinning Mikulka who retorted back “Not this week.” Everyone there thought that was pretty funny.

Based on the video evidence, it would seem that Stoneybrook’s anti-parking leaders may not have been entirely up front with the Supervisors about their ideas for towing on the district-owned streets.

Regardless, with no actual towing rules defined at the August 1 meeting, towing of vehicles would have to wait until the HOA created a policy and ran it by the Supervisors for approval.

On August 14, the day before the next Board of Supervisors meeting, this publication sounded the alarm. As a result of our article Tinkle launched his own investigation and formed enough doubt in his mind that he made it clear at the August 15 meeting that he wasn’t going to let the towing policy proceed any further without Pires answering specific and pointed questions. Fineberg told Pires to have the answers to Tinkle’s questions in time for the district’s September 19 meeting.

In the meantime a series of articles written in the Gateway Sun cast further doubt on the situation. Perhaps as a result, or perhaps not, Mikulka asked the Gateway District to put the towing discussion on hold until further notice. Mikulka may have also had plans to head out of town around the time of the September 19 meeting as well.

When the September 19 meeting agenda came out, towing in Stoneybrook was not on it.

The original plan for this article was, like last time, to hold it until a day before the September 19 meeting when it was expected that towing would be addressed. If I knew that it would be on an October agenda I would have held it further, but as this seems to be an open-ended delay the decision was made to publish this in order pose additional questions about Pires’ newest attempt to help Fineberg with her long-coveted street parking ban. In addition, it should show the residents of Stoneybrook that this latest try – now the fourth attempted justification by district officials – at grasping on to a state or county law in order to justify Fineberg’s wishes for a street parking ban is arguably the most problematic yet.

With FS 316.1945 we made just one argument: case law. With the new attempt by Pires, based on a change to 190.012(2)(d), we identified half a dozen problems. That said, this would be an excellent time to tell you that I am not an attorney. Not to worry though, you’ll hear about several attorneys who specifically told the GSCDD that their position is wrong later in this piece.

This is the statute section involved in Pires’ newest attempt, with the 2016 change Pires is touting in bold.

190.012(2)(d) 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.

So yes if you glanced over it, and especially if you had an attorney advising you that you were good to tow, I suppose you might believe it. But if you start to really examine the elements contained within the text you immediately realize there would have to be multiple errors in the law if it was intended for public roads and not just buildings such as the district office, or facilities such as the Fun Park in Gateway.

If you’ll indulge me quickly … What I’ve noticed about governments is the higher up you go the more competent they are.

Special districts like Gateway are overseen by part-time volunteers where shenanigans like this one are often afoot. Lee County is managed by five full-time commissioners with a pretty large budget and a lot of responsibilities, with a local media keeping a close eye on them. And by the time you reach the state level, you’re very much in the big leagues and the people there are extremely serious and good at what they do.

So… either the professional attorneys who work for the State of Florida and write laws for a living screwed up royally making 6 glaring mistakes in just 2 sentences — which actively invite districts to violate their county’s ordinances, if Pires is right, by the way – or the other alternative is Pires interpretation is simply wrong.

Let’s talk about that.

Pires new idea is based on the set of laws specific to Community Development Districts, or Section 190 of the Florida Statutes.

Within many statutes the state defines specific terms that will be used multiple times and for which they want to remove any doubt as to their intentions. Within Section 190, in fact, the state went out of their way to define “district roads”. Here’s a short snippet of 190.003:

(10) “District manager” means the manager of the district.
(11) “District roads” means highways, streets, roads, alleys, sidewalks, landscaping, storm drains, bridges, and thoroughfares of all kinds and descriptions.
(12) “Elector” means a landowner or qualified elector.

etc…

So when the state wrote that the capability to tow was not prohibited from a district-owned facilty or property why didn’t they just add the words “district roads” to that sentence if that was the intention? The state went out of their way to provide clarity and define district roads … and then don’t use the defined term it where it would obviously be needed? Does Pires believe they simply forgot?

The next (and probably most obvious) discrepancy is that the state says in order to tow from a district facility, the district would have to follow the signage rules in FS 715.07.

Pires likely did not expect the Supervisors to take the time and look up 715.07 and you know, read it.

Because if they did, the Supervisors would realize there’s no absolutely no guidance on how to mark a street or road for towing contained in 715.07. In fact the words “road”, “street”, “avenue” or anything relating to roads don’t even appear anywhere in 715.07.

Everything within that section is specifically related to buildings or commercial parking lots.

Does Pires feel the State of Florida wants districts to craft a towing policy for public roads, but then the state went out of their way to require signage rules that contain no regulations whatsoever on how to properly mark streets or roads as tow-away zones? Sorry, but the state doesn’t operate like that.

Third problem….

Lee County ordinance 24-28 says that the county’s towing laws: shall be deemed and construed to be an exercise of the police power of the county for the preservation and protection of public safety and all of these provisions shall be liberally construed with a view to the effectuation of such purpose.

Broward County has the same language in their ordinance number 23-15, so I’m assuming most counties in Florida do as well.

Does Pires feel that Florida gave districts the right to violate their own county’s ordinances which specifically state that towing off public roads is a police power?

Worse, does Pires feel Florida intended on giving districts the right to exercise police powers when… in the sentence immediately before… the statute says “the district may not exercise any police power.”

So the state supposedly said in consecutive sentences “the district may not exercise any police power, but go ahead and exercise police power.”

Does that make sense?

Fourth…

The State of Florida has over a thousand special districts, many of whom own roads.

Can you imagine if each of these district boards could go around inventing a hodgepodge of whatever parking enforcement rules they felt like?

Florida apparently (and wisely) didn’t want that. So in Section 316.006 of their statutes they specifically gave jurisdiction over all public roads to cities or counties, and keeping them out of the hands of special districts.

FLORIDA STATUTE 316.006

(3) COUNTIES.—
(a) Counties shall have original jurisdiction over all streets and highways located within their boundaries, except all state roads and those streets and highways specified in subsection (2) [EDITOR’S NOTE: subsection (2) covers roads that are within incorporated cities], and may place and maintain such traffic control devices which conform to the manual and specifications of the Department of Transportation upon all streets and highways under their original jurisdiction as they shall deem necessary to indicate and to carry out the provisions of this chapter or to regulate, warn, or guide traffic.

Based on this statute, the Gateway District does not have jurisdiction over their roads in Stoneybrook. Section 316.006(3)(b) goes on to say that if a special district wants to have enforcement rules in place for public roads they own they MUST work out an enforcement agreement with the county.

Does Pires feel that the state wrote one law where if a district wanted to create a towing zone they would have to work with the county via 316.006(3)(b) or city via 316.006(2)(b)… but then they wrote another law, 190.012(2)(d) to specifically contradict themselves and the state said “you can go ahead and do it yourself”?

Fifth issue…

Remember how the state statues went out of their way to define “district roads”? Here is Section 190.012(1)(d)1 where they talk about what a district can fund.. which includes:

(d)1. District roads equal to or exceeding the applicable specifications of the county in which such district roads are located; roads and improvements to existing public roads that are owned by or conveyed to the local general-purpose government, the state, or the Federal Government; street lights; alleys; landscaping; hardscaping; and the undergrounding of electric utility lines. Districts may request the underground placement of utility lines by the local retail electric utility provider in accordance with the utility’s tariff on file with the Public Service Commission and may finance the required contribution.

Why wouldn’t they just give jurisdiction to the districts right there if that was the intention?

Sixth issue…

Again with over a thousand districts in Florida, that means there have been tens of thousands of Supervisors over the years. Do you suppose any of them might have tried to create a parking ban on their district’s roads?

Oh it’s been tried.

In fact the Florida Attorney General has had to weigh in on it a few times over the years.

Although similar language appears in other AG opinions, I’m going to share some text from Advisory Legal Opinion – AGO 2009-40 whose subject is titled “Special district, enforcement of traffic laws”.

Wrote the AG…

On behalf of the Melbourne-Tillman Water Control District, you ask substantially the following question:

May the Melbourne-Tillman Water Control District enforce towing, parking, and code enforcement matters on district property either on its own or through an interlocal agreement with a general jurisdiction local government?

To which the AG writes:

As a statutorily created entity, the district has only such power as is expressly or by necessary implication granted by the legislative enactment creating the district. Unlike counties or municipalities which have been granted home rule powers, special districts possess no inherent or home rule powers. Created by statute for a specific limited purpose, the Melbourne-Tillman Water Control District may exercise only that power and authority as it has been granted by law.

What the Attorney General is saying to Supervisors all across Florida is that their districts were all created by Florida Statute, and the districts only have the powers that were specifically given to them by the state.

They’re saying entities such as the Gateway District cannot just go and create new powers for themselves, such as the towing enforcement powers to tow vehicles from public roads.

Added the AG:

Enforcement of traffic laws on roads of the district entails the exercise of authority that is not addressed in the district’s enabling legislation. Previously, this office has concluded that the state, counties, and municipalities have exclusive jurisdiction of traffic control over roads upon which the public has a right to travel. Counties are specifically granted original jurisdiction over all streets and highways, except state roads and municipal streets, located within their boundaries. With the exception of state roads, municipalities are granted original jurisdiction over all streets and highways located within their boundaries.

And there you have it.

The Gateway District cannot create Tow-Away Zones on roads “upon which the public has a right to travel”. Like the streets in Stoneybrook.

And the reason is very simple and crystal clear: the districts just don’t have the authority to do it, per the AG.

Districts were never granted those powers by the State of Florida when the districts were created by the State of Florida.

I predict Pires will try to tell the board that his newest law he’s offering (what happened to the other one by the way?) gets around that problem. But as we have outlined in no less than 6 different ways, the statute change Pires is using clearly applies to buildings and facilities like play areas – and certainly not public roads.

Now while the Attorney General opined this at other points in time, I picked one from 2009 for a reason.

Go back to 2010 when the Gateway District was putting up “NO STREET PARKING” signs. Shouldn’t Pires, who was Gateway’s lawyer in that day, have said: Oh hey guys, actually the Florida Attorney General just came out with an opinion a few months ago about this ……..

Or when Tetra Tech came out with their inexplicable memo incorrectly citing a Lee County ordinance, did Pires ever say: Oh hey guys, that county ordinance was misquoted. It doesn’t say that.

Fast forward all the way up to the August 15, 2019 meeting of the Board of Supervisors when Mikulka stood before the board, literally wagging his finger at them, all the while incorrectly lecturing the board about a State statute that banned cars from being parked within 30 feet of mailboxes in Stoneybrook…

In reality, the law Mikulka was thinking of only applies to state highways in rural communities. The law is in no way applicable to residential streets like the ones in Stoneybrook. But rather than correct Mikulka, Pires let it stand and allowed the Supervisors believe what Mikulka was saying was true. So much so that the board agreed to pay Tetra Tech to generate a map that would mark the entire Stoneybrook community identifying all mailboxes and 30-foot stretches in front of them based on Mikulka’s incorrect legal advice which Pires did nothing to correct.

Why has Pires stayed silent on obvious errors when it comes to street parking? He certainly has no problem interjecting any other time.

Look, I get it. Pires is a lawyer, I am not. So Pires automatically wins the legal debate.

But not so fast. Because while I may not be a lawyer, Lee County Deputy Attorney Michael Jacobs is. And he wrote directly to the Gateway District on February 22, 2017 and he nailed it in the first sentence, in which told them:

“The issue is jurisdiction.”

Bingo.

“What people are glossing over or choosing not to understand is that it is not about the size of the roads and whether a fire truck can get from one place to another. The issue who has the authority to regulate parking on a public road. That’s it.” added Jacobs.

That wasn’t me who wrote that. It was a Lee County attorney.

Then there was attorney Dawn E. Perry-Lenhart who wrote a 4-page letter to the GSCDD pointing out all of the flaws of their parking enforcement activities, which we obtained via a public records request. This article is already way too long so I will allow Perry-Lenhart to summarize her letter herself:

Based upon the above, it is clear neither the Gateway Services CDD nor Stoneybrook HOA independently possesses the power or authority to install “no street parking” signs or collect fines for violations of these signs. The no parking signs installed within the Stoneybrook community are not supported by approval obtained from Lee County Department of Transportation as required under Code chapter 24 and Florida Statutes.

Exactly.

Do you recall how I said Tinkle launched his own investigation of this last month? Tinkle is on video on August 15 explaining how he spoke to another district’s attorney and how he explained what the Gateway District was trying to do, and that lawyer said, quoting Tinkle: “You can’t do that.”

It is no longer just that Jeff guy from the Sun saying “hey Pires is wrong on this”. Three attorneys and the Florida Attorney General have all made statements to the effect that the Gateway District does not have the authority to do what Fineberg has been trying to get them to do for a decade.

At one point Tinkle asked for a second opinion in an email. He effectively has got a second, third and fourth opinion. All for free!

Like all special districts, the Gateway District was formed by Florida Statutes and they only have the powers that the State of Florida specifically gave them. No CDD in Florida has the jurisdiction or the ability to create new powers such as parking enforcement, including towing on public roads.

If you’ve read this far, congratulations. It is easily the longest article ever published here.

But your reward is that this should put to rest once and for all that the “NO STREET PARKING” signs in Stoneybrook are invalid and should be removed immediately, and that the Gateway District simply does not possess the power to create a tow-away policy of any kind in Stoneybrook and they never did. The whole street parking ban has been illegal from day one.

It turns out that we have all wasted our time on this issue for many years. All the fighting, all the confusion, all the anger, all the fake tickets, were pointless and unnecessary. I put that at the feet of a small group of individuals who know who they are.

Supervisor Tinkle: Make a motion to remove the signs and issue a strongly worded letter from the district to the Stoneybrook HOA and to Allied Security demanding they cease all of their enforcement activities – even the fake tickets – on the district’s roads.

Supervisor Banks: Vote in favor of it this time. Do the right thing.

Towing can still take place within Stoneybrook when a car is abandoned or otherwise parked illegally per Lee County ordinance. You don’t need a CDD rule for that.

This situation … this harassment of the residents of Stoneybrook… has gone on for far too long, and there is now irrefutable and overwhelming proof that there is no valid reason for it.

The Gateway District’s Board of Supervisors do not have the jurisdiction, power or authority to create a street parking ban on the publicly-owned streets in Stoneybrook.

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

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