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Fort Myers Beach Council hears nuisance abatement board ordinance

Attorney representing Lani Kai expresses concern for ordinance's intent

By Nathan Mayberg - Editor | Aug 21, 2020

The Town of Fort Myers Beach Council on Monday held a first reading of a proposed ordinance which would create a nuisance abatement board empowered to potentially close businesses, as well as hand out punishments to residential property owners who run afoul of the proposed edicts.

The measure was brought forward in the wake of a fatal shooting on the beach behind the Lani Kai Island Resort last month.

Feeling that a proposed nuisance abatement board is being directed at their property, the Lani Kai Island Resort requested a one-month delay in a second reading of the abatement board ordinance, which the town council has agreed to put off until their meeting on Sept. 21.

The resort was represented at Monday’s meeting of the town council by attorney Ellyn Bogdanoff, a former state legislator with a background in the insurance business.

Bogdanoff, of the Fort Myers law firm Becker and Poliakoff, requested the additional time so that the resort can propose alternatives to the abatement board and look over reports that have been distributed that state the resort has more emergency calls than other businesses in town to “drill down” what those cases entail. Bogdanoff pointed out, for example, that many of the calls which have been referred to as emergency calls for service are actually routine checks by the Lee County Sheriff’s Office. Other calls are for incidents that may happen on the sidewalk near the hotel but not on its property, she said.

“I’m trying to help the Lani Kai navigate the political environment and to make sure they don’t become the target of the community and I don’t believe they should be,” Bogdanoff said.

Bogdanoff said the hotel is also undergoing its own risk assessment. The resort announced earlier this month that it developed a plan to overhaul safety and security policies on the premises. Bogdanoff said additional lighting in the area could be a solution.

Bogdanoff said the resort is concerned that it has become “the catalyst and the target” for the proposed nuisance abatement board based on comments made at a town council meeting earlier this month. Bogdanoff said the resort has concerns whether such a nuisance law would be applied fairly.

Under the current proposed law, two criminal incidents within a six-month period that occur on the grounds of a business could lead to severe punishments including fines and, potentially, closure, she said.

“This is a kind of aggressive action where they were the target and catalyst.”

Bogdanoff said Lani Kai has been “a good corporate citizen for 42 years” and a “generous member of the business community.”

Vice Mayor Rexann Hosafros has expressed reservations about the potential misuse of a nuisance law and the burden of adding a new bureaucracy. Mayor Ray Murphy acknowledged those concerns on Monday, saying he “wasn’t excited” about adding a new committee and bureaucracy but said “the tool will be there. We have to have something to fall back on to give it a little teeth.”

Councilmember Bill Veach said the nuisance abatement board would be acting on cases brought by the Lee County Sheriff’s Office.

“A barking dog doesn’t get you in front of the abatement board,” he said.

Veach said an abatement board could work with businesses to address troubles, rather than act punitively.

Councilmember Jim Atterholt said the council was in “a tough spot” and has advocated for the board as a way for the town to “control its own public safety” and “reclaim control of our own destiny.”

Councilmember Dan Allers, who initially opposed delaying the second reading by a month, said the abatement board “will be driven by the Sheriff’s Office.”

Hosafros said the nuisance abatement board wouldn’t be “a valuable tool” since most of the problems on the island are caused by alcohol, which would not be in the abatement board’s purview as the sale of alcohol is regulated by the state.

Fort Myers Beach Manager Roger Hernstadt said the town council should hear from the Sheriff’s Office as to how an abatement board process would work as well as the added costs.

Hosafros said the town also would have to incur additional attorney-related costs by creating the board, as well as the hiring of court reporters for transcripts at hearings.

Though Hosafros said she opposed the creation of the board, she pushed for requiring an attorney to chair the nuisance abatement board and be in charge of making evidentiary rulings. Hosafros said the attorney would not have to reside in Fort Myers Beach. Hosafros originally wanted an attorney with trial experience to sit on the board though Atterholt called that a “poison pill.” The board settled on making the chair an attorney, though not one who must have trial experience.

Hosafros also pushed for a higher standard of clear and convincing evidence for the nuisance abatement board – objecting to the lesser standard of a “preponderance of evidence” for quasi-judicial proceedings.

“We are treating a business worse than we treat a criminal,” Hosafros said.

Atterholt said his expectation is that the board would act incrementally against a business, with shutting a business down used as “a last-resort tool.”