More than they 'bargained' for – Marco Island Code Enforcement Board hears church thrift store case

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Pastor Richard Adair of the United Church of Marco Island listens to Marco's Code Enforcement Board debate parking at the church's Bargain Basket outlet. The board met Tuesday afternoon in the city council chambers. Lance Shearer/Eagle Correspondent

MARCO ISLAND — Shades of Perry Mason: The Code Enforcement Board meeting Tuesday afternoon turned into a courtroom-style drama, with competing attorneys citing points of law and examining witnesses at the stand. It was a far cry from the usual litany of "failure to connect to the sewer lines" and "foreclosed property falling into disrepair" cases the board usually hears.

The unusual spectacle had a considerable audience. Approximately 85 supporters of the United Church of Marco Island, and their Bargain Basket outlet store at 750 North Bald Eagle Drive, nearly filled the City Council chambers, to hear the complaint about parking lodged against the store by city staff.

Code Compliance Supervisor Liz Carr laid out the case against the Bargain Basket, saying it did not have required documentation, including an occupational license and zoning certificate, and lacks sufficient parking space for a retail outlet of its size. Traffic problems, she said, began at the site in January, 2011, and there had been no contact or compliance from the store's management, despite warnings and parking tickets being issued.

Attorney Patrick Neale, representing the church, immediately made a motion to dismiss the case, saying that in 37 years of continuous operation, the Bargain Basket had never been required to have a zoning certificate, yet "all of a sudden," the city had decided its statutes were being violated.

"It's probably because of complaints, but complaints don't make it right," said Neale.

City Attorney Burt Saunders, representing the board, said that Collier County issues business licenses to thrift shops all over the county. The stores have the fee waived, and also do not have to collect sales tax.

"No sales tax? My wife wants a refund," interjected CEB Chairman Lou Prigge. Barbara Prigge, showing up later at the hearing, said she was not sure she had been charged sales tax when she shopped at Bargain Basket.

Neale argued the doctrine of equitable estoppel, saying that when a business or individual takes action "based on what the government told them, and then the government says, 'Oops, I didn't really mean it," the business or individual cannot be held liable. "That's what happened," he said.

The action in question came when the church bought the Bargain Basket property in 2010 for $1.1 million, after years of renting smaller space. Church representatives met with the city numerous times, and did everything they were asked, said Neale. They were not informed they did not have enough parking spaces.

The problem, said board member Rony Joel, is "you've been too successful."

United Church Pastor Richard Adair stood before the board, and answered questions from Neale.

"We wanted to be upfront," said Adair. "We came to the city, and tried to follow every little rule." When Saunders put questions to Adair, Neale objected.

"He's examining my witness in a way I'm not comfortable with," said Neale. "Is he representing the board or the city?" He was representing the board, said Saunders, but Neale noted Saunders is the city's attorney.

"I object to Mr. Saunders wearing two hats today. I seriously object to that," said Neale. "The Reverend would not have made the recommendation, with his job on the line, that they spend $1.1 million," if there had been a question or gray area about the proposed site, he said. "There was no action until the complaints."

"The board is not equipped to deal with the legal issue here," said board member Richard Adams, moving to deny the motion to dismiss, which the board did, by a 5-2 vote. With that, they proceeded to hear the substance of the case.

Neale had a court reporter sitting in the front of the room, transcribing the proceedings, which are also captured on television by the city's audio-visual and available on live television or on the Internet.

As Zoning Administrator Joe Irvin told the board, the code calls for 24 parking spaces, based on the square footage and usage of the property, and it has only 14, leaving a deficiency of 10 spaces. Possible solutions were discussed, including parking on adjacent city-owned right of way, but as Prigge reminded the board, "It's not our job to solve the problem." They are charged with deciding whether to impose sanctions.

In the end, the board agreed to give the church more time to come up with an answer. They were told to "get the parking squared away by January 2" of next year, at which time the issue would be revisited.

The meeting Tuesday was the first for two new CEB members, Debra Shanahan and Martin Roddy, who probably got more than they bargained for with their initial hearing. The board did settle a couple more routine cases, including one property in probate due to the death of island and cityhood pioneer Glenn Tucker.

The next CEB meeting is scheduled for Oct. 9.