ST. PETE BEACH — The First Amendment Foundation has entered an appeals case alleging that the City Commission violated the state's Sunshine Law.
The court action involves an ongoing and sometimes bitter dispute over the public use of beach property in front of a Pass-a-Grille home south of the Loews Don CeSar Hotel.
Chet and Katherine Chmielewski began their battle with the city in 2006 because of city-sponsored events they say encourage the public to use their private beach.
The couple purchased their home in the 1970s at about the same time the city acquired several adjacent lots from the federal government. Now the site of the Don Vista Community Center, the property includes a federal restriction against public beach access from the center.
The Chmielewskis won the 2006 case in federal court. The city agreed in a formal settlement that the couple owns the beach-front property all the way to the mean high water line on the Gulf of Mexico.
The settlement also stipulated that the Chmielewskis' beach property was "dedicated to the use of the property owners … for beach and bathing purposes, and no tents, vehicles nor structures of any kind shall be permitted."
In 2009, the Chmielewskis took the city to court again, alleging that the city was still using their land, a practice they said amounted to illegal taking without compensation.
They contended that their property was being "consistently invaded by the public traversing across their property, peering into their windows, sitting and leaning on their back patio, (and) walking dogs along their property walkway."
The case is before the U.S. District Court in Tampa. As part of that case, the Chmielewskis' lawyers asked for copies of a private meeting between the City Commission and its attorneys that occurred in a 2008 before the 2006 case was settled.
When the Circuit Court, which has jurisdiction over the Sunshine Law, denied that request, saying the underlying cases were essentially the same, the Chmielewskis took the matter to the 2nd District Court of Appeal.
In its amicus brief filed last week, the foundation supports that appeal.
According to the foundation, if the lower court ruling were allowed to stand it would "substantially expand the limited exemption to Florida's Sunshine Law" that applies to government entities and their attorneys.
The group also argues that because of the year's time between the two cases, the 2008 shade meeting transcript was effectively made public and could not revert to protected status under the Sunshine Law.
The foundation also stresses that a 1993 amendment to the Sunshine Law allows government entities to meet privately with their attorneys "only to discuss settlement negotiations or strategy related to litigation expenditures."
"The stated basis for the trial court's ruling is contrary to Florida law … If the trial court order is allowed to stand, government entities will be allowed to keep shade meeting transcripts out of the public eye long after litigation is concluded — perhaps in perpetuity," the foundation brief states.
The Chmielewskis are seeking the shade meeting transcripts because they think the commission and its attorneys may have discussed how to circumvent the federal court to allow public use of the beach in front of their home, their attorney Stephen Turner said Tuesday.
"It is an interesting case. The question is, do the Chmielewskis have rights and are those rights being trampled on," Turner said.
Susan Churuti, one of the city's attorneys, maintains that the two cases are still active and connected and therefore the closed meeting is protected by the Sunshine Law.