Brett’s allowed to remain open for now

Submitted by Suanne Z. Thamm
Reporter – News Analyst
November 21, 2021

At 10:15 a.m. on Friday, November 19, 2021, representatives of the City of Fernandina Beach and the Centre Street Restaurant Group appeared before Circuit Court Judge Steven M. Fahlgren in Judge’s Chambers in the Historic Nassau County Courthouse in downtown Fernandina Beach, FL.  The issue before the Court was a motion for stay of administrative proceedings, or in the alternative, a motion for temporary injunction filed by the Centre Street Restaurant Group, Inc. (CSRG) to stay the City’s Notice of Unsafe Building and Intent to Condemn dated July 2, 2021 that would have forced the closure of Brett’s Waterway Cafe at the foot of Centre Street.

The petitioners were represented by attorney John A. Tucker via Zoom.  The City of Fernandina Beach was represented by attorney C. H. Houston III, who along with Fernandina Beach City Attorney Tammi Bach and Commissioner Chip Ross, appeared in person for the hearing.

At issue was the decision of the City’s Board of Adjustment (BOA) to affirm a ruling by the City Engineer that the structure housing the restaurant was unsafe.  The City’s Notice required the petitioners to either take action to repair the restaurant’s substructure or vacate the restaurant.

Petitioners argued that despite many investigations and reports by their experts and City experts, no one could say with absolute certainty that the building was unsafe or in danger of imminent collapse.  They said that the City Engineer was required by code to declare the building safe or unsafe; he had no middle ground.  While admitting that there was deterioration of the underlying structure, petitioners maintained that it had not yet deteriorated to the point that it posed an imminent threat to public safety.

The City argued that the Judge’s jurisdiction did not extend into the merits of the case, but only to review of the decision of the Board of Adjustment.  The Judge did not necessarily accept this argument.

On behalf of his client, Tucker argued that the BOA decision was flawed for several reasons.  He claimed that it relied almost exclusively on hearsay and did not consider “competent, substantial evidence” as required by code.  He further opined that because the BOA’s findings were issued days after the hearing and signed only by the BOA Chair, the ruling was procedurally defective.  He said that for the findings to be valid, they needed to be voted upon by the entire board.  Since that did not happen, he said the action by the Chair could constitute a violation of Sunshine and Open Records laws.

In summarizing his position, Tucker said that discussions with the City over structural problems had been open and ongoing since July, and that his clients had done everything the City had requested.  He continued to maintain that the decision of BOA was flawed because of the lack of competent, substantial evidence; their findings were not voted upon but were signed outside the Sunshine by the Chair following the hearing; no recommendations or remedies had been offered; and that proceeding with the proposed action to close the restaurant would cause irreparable harm to his clients and the 70-80 people who relied on the restaurant for their livelihood.

In arguing for the City and the BOA, Houston claimed the Judge’s role was limited to certiori, i.e. reviewing the decision of the BOA.  He cited reports upon which the BOA had made their decision and the ruling by the City Engineer as competent, substantial evidence.  In his brief, he argued that “imminent” is not the standard for public safety.

Judge Fahlgren was actively involved in a back and forth with both Tucker and Houston during their testimonies.  He indicated that he was inclined to issue a stay, but not an injunction.  He believed that the testimony given to the BOA was not conclusive.  However, he was troubled by the procedural defects identified by the petitioner:  no BOA vote to confirm findings; Sunshine concerns regarding signing of findings by the BOA Chair days after the hearing.

Judge Fahlgren granted the petitioners’ request to issue a stay.  He called for “good faith and fair dealing” and incorporated several requirements in his order:  

• In the event of tidal surges, the restaurant must be evacuated;
• If the Shave Bridge is closed for a wind event, the restaurant must be closed and not reopened until the structure can be inspected;
• The CSRG must add the City to its insurance policy and secure a bond covering personal indemnification in the amount of $300K (the amount specified in law).

The Judge did not put a time limit on the stay, but asked the parties to mediate to find a way to preserve the restaurant for the next four years, the end of the current lease period.  The stay will remain in effect until further court action.

He added that he would like to see “a little more evidence” and for the BOA to revisit the issue of findings to be voted upon by the entire board in public.

The petitioners emphasized that they considered public safety to be the paramount issue.  However, due to the hesitation of engineers to firmly declare the structure unsafe, they felt uncomfortable closing a popular restaurant and putting 70-80 people out of work.

After Judge Fahlgren left the hearing, the parties remained in discussion for about 20 minutes to discuss next steps.

To view all the documents filed with the Court on this case, visit https://www.nassauclerk.com and search for civil case 317 or click here.