A letter to OHPA – “Either pay the tax or produce the records – OHPA’s choice.”

By Chip Ross
Private Citizen
May 3, 2021

Editor’s Note: For our readers who are not aware of the issues involving the City of Fernandina Beach and the Ocean Hwy & Port Authority please read Suanne Thamm’s articles, “FBCC – OHPA meditation attempt fails – No bridge over these troubled waters and, “Commissioner Chip Ross – Digging for dollars from OHPA.  Although, Chip Ross serves on the Fernandina Beach City Commission, he stated his letter is sent to OHPA as a private citizen.

A letter to the Ocean Hwy & Port Authority:

“The story begins two and half years ago when the Ocean Highway Port Authority [OHPA] entered into an Operating Agreement with Nassau Terminals, LLC [the Operator]. The agreement states “the Operator as an independent contractor is required to comply with public records laws…”.

The agreement also required the Operator to:

1. Provide yearly written maintenance reports and fiscal projections for OHPA buildings and equipment that the Operator uses;
2. Provide a yearly plan and budget for capital improvements and repairs;
3. Maintain specified insurance coverages;
4. Provide certain notifications about dangerous cargoes; and
5. Maintain accounts and records pertaining to Dockage Fees, Wharfage Fees and Operating revenues.

“Florida’s Public Records Law, Ch. 119, F.S., provides a right of access to the records of the state and local governments as well as to private entities acting on their behalf [bolding added]. In absence of a statutory exemption, this right of access applies to all materials made or received by an agency in connection with the transaction of official business which are used to perpetuate, communicate or formalize knowledge. Access to public records has been described as a “cornerstone of our political culture.” In the Report & Recommendations of Judicial Mgmt. Council of Fla. on Privacy & Elec. Access to Court Records, 832 So. 2d 712, 713 (Fla. 2002).”

Government-In-The-Sunshine Manual

More than four months ago I made a public records request to obtain the documents that the Operator was supposed to provide OHPA. Within days of the original request, OHPA responded that they did not have the requested documents – no explanation as to why not – but OHPA would forward the request to the Operator.

Despite a number of follow up e-mails and public requests, OPHA stuck to the story of we don’t have the documents, we let the Operator know you want them, our duty is done.

The Operator eventually hired an attorney, Douglas and Douglas (a personal injury law firm). Four months after the original request the Operator’s lawyers sent me an e-mail letter and hand delivered the e-mailed letter to the OHPA Commissioners and Attorney at the 14 April 2021 OHPA meeting.

The letter stated that the Operator was not subject to the Public Records Act and therefore would not be providing any documents. The basis for the denial was summarized as “OHPA has virtually no control over Nassau’s operations and functions within the Port. Once the Operating Agreement was executed, OHPA had no further involvement in Nassau’s day to day operations, including oversight, but instead leaves Nassau to its own device to perform the duties it has been contractually tasked with handling”.

As per OHPA’s charter, Section 7(2), OHPA has the authority to “perform all customary services, including the handling, weighing, measuring, regulation, control, inspection, and reconditioning of all commodities and cargoes received or shipped through any port or harbor within the jurisdiction of the authority’”. OHPA has delegated this governmental function to the Operator. Since the operator has stepped into the shoes of the Port, the Operator is subject to the Public Records Act.

Additionally, the Operator claimed “Nassau does not receive any public funding from OHPA…” despite the fact OHPA has requested and received millions of dollars of taxpayer dollars from the State and Federal governments which have been used to pay for port capital improvements used by the Operator.

At the 14 April 2021 OHPA meeting, and subsequently, OHPA has stuck to its story we don’t have the documents, we let the Operator know you want them, our duty is done.

More than 2 weeks ago I made a request for a number of documents concerning a loan agreement between OHPA and the Operator concerning the purchase of a tugboat for the Port. The day following the request, I received an e-mail from the current OHPA Attorney stating “your request has been received and is being reviewed. OHPA will respond accordingly in a timely fashion.” No further communications have been received.

I would also like to remind OHPA that to facilitate the production of documents and avoid costly litigation, recently I proposed to enter mediation with the Attorney General’s office as delineated in FS 16.60. Both OHPA and the Operator refused to participate.

As per FS 119.0701(4)(2) consider this letter as notice that a public request for documents was made on 19 December 2020 and 14 April 2021 which have not been fulfilled. Additionally, you are given notice that OHPA’s contractor, the port Operator, has not complied with the public record requests as required by Florida statute and the Operating Agreement.

Finally, if one accepts the Operator’s argument that the Operator only pays a fee to use the publicly owned Port Facilities, then the Operator would likely be required to pay more than $300,000 in annual ad valorem taxes. As a self- proclaimed leasee, the Operator should likely now be paying taxes to the County, City and School Board as a leasee of the property.”