Legal issues spark heated debate

ALACHUA – Decisions about who should represent the City of Alachua against four separate lawsuits sparked a contentions discussion Monday evening.

In a special meeting, not open to the public, before the regular city commission meeting Sept. 26, commissioners, legal staff and other city officials strategized about a host of legal issues facing the city.  During the regular public meeting that followed, commissioners took action on four lawsuits in particular, prompting a debate on the part of at least two commissioners who said they were concerned with legal representation on the cases.

City Attorney Marian Rush asked that her firm, Rush and Glassman, be appointed by the commission as co-counsel with attorney David Theriaque in a federal lawsuit.  Brought by The Lions Den, that case challenges the legality of a city ordinance and seeks to overturn it, allowing the company to open an adult novelty store near Interstate 75 and U.S. Highway 441 in Alachua.

Theriaque was responsible for writing the city’s Ordinance 11-06, an ordinance that restricts the types of businesses allowed to operate within an area labeled the “Gateway Activity Center,” a 2,000-foot zone surrounding the intersection of I-75 and U.S. 441.

The city’s insurance carrier has reportedly agreed to pay $180 of Theriaque’s $200 per hour fee to defend the city.  But Monday, Rush said her firm should be appointed as co-counsel in the case because “this case is going to be inextricably intertwined with the case in 2003,” a similar lawsuit by another adult novelty store.

Vice-Mayor Ben Boukari, Jr. opposed appointing co-counsel and cited concerns of increased legal fees saying, “I don’t know that we need more than one person or a group to litigate for us.”

Rush, whose firm defended the city against the 2003 case brought by Adult World, argued that her knowledge of the prior case would be a benefit.  She also noted that three law firms are representing the Lions Den.  Addressing Boukari’s concerns, Rush said, “It’s actually going to save money.”

Boukari, however, suggested that the $10,000 monthly fee already paid to Rush and Glassman should be sufficient to cover Marian Rush’s involvement.

“Should [Theriaque] need help or information, I would imagine under our current contract with our city attorney, she would provide what needed to be provided,” Boukari said.  “My concerns are financial.  I don’t want to see us push the limits in terms of legal costs.  [Theriaque] can defend that ordinance, I would think, on his own, that’s why he’s being hired.”

City Manager Traci Cain said assistance with The Lions Den lawsuit wouldn’t be covered under the $10,000 monthly fee.  “If [Rush] helps in anyway with this case, it’s not going to come under her retainer,” said Cain.

Responding to Commissioner Gary Hardacre, Cain said “We can always monitor and make sure that Mr. Theriaque’s office is performing more of the duties and that he is doing the leg work since his fees would be paid by insurance, rather than Ms. Rush.”

Apparently referring to earlier statements made by Rush, Cain said, “This is going to be a case that is probably going to be very lengthy.  It’s going to go on for several years probably and be very costly.”

Those costs are what, Boukari said, the City needed to control.   “Costs are going to hit our general fund directly and not just our insurance,” he said.  “This strictly comes down to money.  I’m concerned that should this go on for years, like we’re expecting it to, [Rush is] saying it will save money, I’m not so sure.”

After the heated discussion, commissioners voted 4-1 to appoint David Theriaque as the lead attorney with Rush and Glassman as co-counsel.  Boukari cast the dissenting vote.

In two separate cases against the City brought by the same company, JGC Land Development, LLC, commissioners were asked to give Cain and Rush the authority to negotiate with Theriaque and attorney Skip Kohlmyer to defend against the cases.

The company is seeking injunctive relief to keep the City from spending nearly $1 million set aside for infrastructure in the Heritage Oaks neighborhood near Santa Fe High School. In a separate case, JGC Land Development is seeking $3.2 million plus interest and legal costs because it claims the City “interfered” and “disrupted” its project.

Commissioner Robert Wilford opposed utilizing Theriaque in either of the cases pointing to the City’s case load already being carried by Theriaque.

“I don’t think it should be Mr. Theriaque.  I think it should be Mr. Kohlmyer or someone else because we’ve got a lot of things tied up with Mr. Theriaque.

In a vote of 4-1, commissioners approved the negotiations, with Wilford dissenting.

Commissioners unanimously agreed not to file a counterclaim in lawsuit filed against the City by Jones Edmunds & Associates, Inc., a design and engineering firm working on the city’s wastewater treatment plant expansion.  The company is seeking a half-million dollars in redesign costs it says were necessary because of the City’s failure to provide information from its Land Development Regulations (LDRs).

In its complaint, Jones Edmunds said a city representative approved the necessary changes mid-project, but the city has only paid the fees of $1.25 million outlined in the original agreement rather than the increased fee of $1.8 million.