From his office perch behind Kahuna's Bar and Grill, Jim Kenrick looks out the window and still feels the squeeze of the past two years.
Behind his Gandy Boulevard restaurant, Kenrick sees the luxury apartment complex that, in 2009, swallowed his driving range and beach volleyball courts. Seeking to preserve his restaurant's active ambience, he installed a video golf game, only to have a customer break his finger on the screen and receive an $8,000 settlement.
These days, Kenrick believes just about anything can be a liability. He fears that could soon include his "final flank" — the parking lot facing Gandy Boulevard — where the Department of Transportation is laying a sidewalk Kenrick and other business owners view as bad for business — and potentially dangerous.
Claiming the land as theirs, the state is wiping away about a half dozen spots, or about 30 percent, from Kenrick's parking lot. And for that, he's considered one of the lucky ones.
Less than a mile down the road, at the Crab Shack Restaurant, Jerry Brave looks at Kenrick's situation with envy. His property, built almost 20 years before Kenrick's, sits even closer to Gandy Boulevard. With the $3.5 million project, he stands to lose the parking in front of his restaurant for a sidewalk he deems unnecessary.
"I'd be shocked if anyone said these sidewalks are necessary," Brave said. "If you see one person walking, I'd be totally shocked. Anybody who rides their bike on Gandy is a fool."
Brave has owned the restaurant with his wife for almost 21 years — just enough time to have the parking lot grandfathered into ownership. Or so he thought.
If a case is to be made, the businesses would have to make an estoppel argument, claiming that the state has changed the conditions of promises made during previous widening projects, said Jackson Bowman, an eminent domain attorney and partner at Brigham Moore. Otherwise, he said the business' best hope is to lobby legislators.
"I told these guys to call (Gov.) Rick Scott and ask what are we doing," said Bowman, who has provided Kenrick with legal counsel and will teach a class at Stetson College of Law this fall on real property litigation. "They're doing a road project and killing these people. I don't think it's well thought out."
Fighting the project will pit the businesses in an uphill battle against the state, Bowman said. In 2008, Florida's legal climate took a turn against businesses with the Fisher vs. Department of Transportation case, in which business owners brought an inverse condemnation action against the state for a road project that diminished road access to their establishments. An appeals court refused to rehear the case, confirming a lower court's ruling that the access was not severe enough to merit compensation.
"That hurt people who had probably legitimate concerns about their deprivation of access and impact on property," Bowman said. "Where the DOT for years was paying to put people on frontage roads, the Fisher case gutted that."
Stephanie Pierce, the DOT's project manager, said the state has an uncontested stake on the land and has made no promises. The complaints raised, she said, have been largely driven by the initial shock of seeing construction crews tear apart parking spaces.
And though she sympathizes with businesses' concerns, Pierce said safety ultimately trumps parking.
Extensive crash data and studies collected between 2003 and 2007 show that Gandy Boulevard had experienced annual crash rates "well below" the statewide average during that span. But they also noted several areas in which "significant amounts of crashes have occurred." Those areas all corresponded to the intersection of Brighton Bay Boulevard NE and the Derby Lane Greyhound Track entrance, an area close to Kahuna's Bar & Grill and the Vegas Showgirls strip club, thus far the only business on the boulevard to reach a lease agreement with the DOT.
At the Crab Shack Restaurant, Pierce said poor parking lot circulation forced some motorists to back out onto the boulevard.
"That's not a safe condition for any property," she said. "We will try to work with the property owner and lease back some of the right of way. In this case, that wasn't an opportunity."
Pierce said Kenrick was offered a lease, though he turned it down and requested a deceleration lane instead. With a narrower ingress, Kenrick has argued that cars making quick, sharp turns into his lot could hit pedestrians crossing from one part of the sidewalk to another.
"For me, it's a business, but then we're talking about lifelong injuries," said Kenrick, adding that he will consider "survival measures," like removing his outdoor porch area, in response to the plan.
But Pierce said that concern is ill-founded.
"Twenty-two-foot driveways are standard," she said. "Usually they're between 22 and 24 feet wide. He doesn't have one to date. People have to slow down to get into his property. So there's no change there."
Pierce added that weathered pathways along the road indicated the need for a sidewalk, and Dave Mamber, owner of Dave's Aqua Lounge, agrees.
Fifteen years ago, Mamber said he lobbied for the sidewalk. He'll welcome workers as they cut halfway into his drainage ditch — but not his parking lot — to clear way for a sidewalk he said is long overdue.
"I hope they just make it quick," he said. "I feel like I helped or hope I helped put a bug in somebody's ear.
"I'm just happy to see it come to fruition."
C. Ryan Barber can be reached at firstname.lastname@example.org or (727) 893-8505. Follow him on Twitter at twitter.com/cryanbarber