A Smoldering Flagler Beach Commission Punts To Voters on Bonfires After a Flagrant Debate
FlaglerLive | April 30, 2012
It was the sort of ugly meeting the Flagler Beach City Commission can be famous for as recriminations from commissioners and public clashed enough to start a few fires Thursday evening. The unsurprising topic: bonfires on the beach. The issue has divided residents and the commission for a year, inconclusively, because the city commission has been incapable of deciding what to do, essentially fueling discord by dragging it out with inaction. It’s not unusual for a commission whose best quality—it is the most deferential among Flagler County governments to local residents’ desires—is also its Achille’s heel: crafting consensus out of clashing interests eludes it more often than not on key issues.
On Thursday, decorum eluded it, too.
The bonfire issue had one commissioner questioning colleagues’ literacy. It had another commissioner questioning to what extent people in the audience represented the city at large (the very people in the audience whom the commission last July officially celebrated through proclamation). The same commissioner, astoundingly, went so far as to say by means of example that had a majority of residents urged her to violate federal law and oppose school integration, she would have. It had members of the audience declaring themselves offended by what they see as their commissioners’ defiance of the law—the Endangered Species Act—while others, without evidence ridiculed the law in question as a crutch “special interest” use to file lawsuits and arrest economic development. (The connection between beach bonfires and economic development was not explained.)
All this over sea turtles, some of which are endangered, some of which are threatened, thousands of which hatch on Flagler beaches every spring, most only to perish before reaching maturity. One of the ways to increase the chances of their survival is to minimize artificial light, which disorients hatchlings and sends them scurrying away from the ocean, often never to make it that far from exhaustion or exposure to predators.
Bonfires on the beach are among those potential distractions. Overwhelmingly around Florida’s shores, bonfires are banned. Not in Flagler Beach, where bonfires are synonymous with the go-to justification of all things that clash with more recent laws or regulations: tradition. (Banning blacks and terrorizing those who flouted the ban was also a tradition on the beaches of Flagler Beach until less than two generations ago.)
But supporters of bonfires on the beach say there’s no evidence that turtles are being harmed in any way by the fires, and in fact no such hard evidence has been presented. There is only a speculative cause-and-effect relationship between sea turtles’ nesting numbers and bonfires, though the Volusia Flagler Turtle Patrol has individual, daily observations of beach conditions and the law on its side. “I just don’t understand how you can say this person is allowed to have a bonfire on the beach—turn those condo lights off on the third story and the fifth story of the houses, because they’re shining on the beach, but yet you can have this huge fire. I don’t get that,” Lori Ottlein, a Turtle Patrol volunteer, told commissioners.
After commissioners spoke their mind and nine members of the occasionally maligned audience spoke—four favoring a ban on bonfires, three opposing such a ban, and one, the last to speak, proposing an idea that commissioners took as their evening’s best lifeline—commissioners punted: they voted 4-1, with Kim Carney in dissent, to place the issue on the election ballot for a popular referendum, withr in August or in November.
The man making that proposal was Dick Ricardi. “I’m a little disturbed when I hear people say that these people here don’t represent the city,” he told the commissioners, “and that you want to represent all of the city. You want to represent those people that never come to the meetings, don’t know what’s going on, have not heard both sides of the argument, don’t know about an impending lawsuit. You’d rather listen to them than listen to people here who have presented great arguments, and your thinking is that you want to hear from all of the people of the city, not just this little group here. And I understand that, too. So my solution for this is, for you to put this question on the November ballot as a referendum item, and then, you can have your entire city, after listening to the arguments and reading about it in the paper for months, and listening to all the stuff that goes on in an election year about the Turtle Patrol, they will make a judgment, the entire town will come, and vote and make a judgment, and that’s just what you have said.”
Carney opposed the measure because she wants the commission to ban beach bonfires outright—not because she is particularly opposed to bonfires, but because she is categorically opposed to exposing the city to potentially costly liability, if the federal government finds it in violation of the Endangered Species Act. She had started the discussion Thursday with a long, written speech that marshaled the evening’s most foot-noted evidence, though even she managed to offend Jane Mealy, chairman of the commission (who opposes an outright ban), not for unwarranted reasons: Carney was pulling that old parliamentary trick of giving an anonymous quote the power of the dais.
“I am baffled by the lack of consensus and the lack of compromise,” Carney began. “I do not understand how five people can read the same literature, the same emails from people that spend their lives working on this issue, as well as our own attorney, and not have consensus on what we have to do. I do not see the rationale to put our city at risk over this public issue. It appears to some of us that we are responding to pressure to continue allowing an activity that can put our city at financial risk. After the last workshop I sought feedback from people that I consider educated on this issue. One piece of feedback I received was, quote, it is very obvious that two commissioners have read the Endangered Species Act, and three have not. I am not saying that no one has read it, I’m just suggesting that maybe there is some misunderstanding.”
“Commissioner Carney,” Mealy rebuked, “can you address the issue and not the rest, how you tthink the rest of the commission acts?”
“Sure,” Carney said.
“I’m taking great offense at what you’re doing, not just for myself, but for everybody up here,” Mealy said. “Could you just address the issue of bonfires on the beach and the turtles please, not the fact that some of us are better educated than others, that kind of thing.”
Mealy got no argument from Carney who—like a lawyer who quickly respects an objection from the opposition—had made her point. She went on to describe the severity of federal fines and suggested a series of compromises that would allow bonfires in the city, just not at the beach. “There is no god-given right to have a bonfire on the beach,” Carney continued. “It is a privilege, a privilege that is mandated by the policies and laws of this city. When are we going to come together and accept the fact that we oversee a very large ecosystem, an ecosystem that is bigger than any one of us sitting up here. We have to manager it together as a unified body of policymakers. We as policymakers for the owners of this beach, which is the city of Flagler Beach, we need to compromise.” She acknowledged the “slippery slope” of taking away the right to have bonfires, but said the legal justification is there: it’s required by federal law, just as the innumerable communities around Florida’s coastline have banned beach bonfires.
And she quoted from a cautionary Feb. 11 email by Drew Smith, the county’s attorney: “While legislation such as that threatened under the Endangered Species Act does not include monetary damages claims, a prevailing plaintiff is entitled to recover its attorneys’ fees incurred in prosecuting the litigation. This, in addition to the defense costs, can make trying and losing an Endangers Species Act an expensive proposition.” The recommendation went on: “From a sheer exposure and expense standpoint, not allowing fires on the beach is the safest and cheapest solution.”
Of course, the same argument can be made about innumerable issues before local governments that elicit the threat of litigation—a tactic developers, for example, use to great advantage to win overly generous concessions, often at the expense of the very environmental laws debated in this case. That, to some extent, was City Commissioner Joy McGrew’s point when she gave the legal argument less weight than her constituents’ desires.
“I haven’t changed my mind,” McGrew said. “I still believe that what I’ve seen that has come to this room for the last meeting, whether it was a workshop or a formal meeting as it is tonight, I’m sorry, but you do not represent the majority of people that live in this community. I’ve made every effort for the last six months to talk to everybody in town that I can, pin down and ask: you live here, you vote here, you pay taxes here. What do you want to happen on your beach? Overwhelming majority says do not ban bonfires. So I’m supposed to listen to the law and I’m supposed to listen to the people who elected me and put me here. So I’ve said it before and I’ll say it again, I’d like to take the year of 2012 and use it as a model year to do the research to either prove you wrong, or to prove us right as the fact that we have no problem between bonfires and turtles. We have no record other than the tapes, the nests that were disturbed years ago, some photographs. I know Lori does a great job, and I’m not knocking the turtle people at all, Lori, I hope you understand that. I see you there every day, I respect what you do, but I can honestly tell you, you have not come to this commission and said, we have a problem.”
Commissioner Steve Settle, who’s known the ways of Washington D.C. after living and working in government there many years, was uneasy by McGrew’s apparent dismissal of lawsuit risks. He asked her if she’d considered that risk.
“Steve,” McGrew replied, “we, as a government agency are liable if somebody stumps their toe because the lights were out. We are liable every way we turn. Do you want to be governed by that? I don’t want to be governed by fear. That’s what I don’t want to be governed by. I want to be governed by what the people tell me is what they want to see in their town that they pay taxes for.”
“Joy,” Settle replied, “if the people of this city told you that they didn’t want to integrate schools or something like that, would you say that was justification to go forward and violate federal law?”
It was at that point that McGrew, always outspoken but rarely careless, offered up a shocking reply that rang more of 1960s Alabama than 21st century Flagler Beach: “If that’s the way I feel, yes,” she replied immediately. “If that’s the way that I—if that’s what I’m doing is listening to the people. I pretty much thought that was what we all kind of campaigned and got elected for is, I’ll be the voice of the people. So that’s it. I’m not going to get into–”
“I’m not going to allow that kind of an argument,” Mealy, the commission chairman and a frequent Settle antagonist, interrupted.
“No, no, that argument is completely analogous to what we’re talking about right now,” Settle returned. “You’re talking about, we invited the federal government, we invited the state government, please come down and talk with us and let’s try to work a compromise out so we can follow the will of the people. The federal government, the state government says, gees guys, there’s nothing to talk about. Congress in that legislation, we don’t, we can’t amend the rules. We’ve interpreted it this way, we’re not going to change it. We’ve got advice from our counsel. It says if the federal government interprets a rule a certain way and we say we’re not going to do it, we’re going to get locked in litigation in a battle of experts where we’re not just going to have to pay Drew,” meaning the city attorney, Drew Smith, but many others, including the opposition’s lawyers and expert witnesses.
“Vote me down, Steve. That’s how I feel,” was McGrew’s reply.
“I’m still with Joy,” Mealy said, referring to the proposed ordinance as more a guideline than a mandate. “The city has made a great effort, but we also hear lots of times we’re making too many rules, we’re taking away too many rights, we heard it several times tonight. I think we allow it for one year, and as Joy was saying, collect the data.” She then opened the floor to public input, with views from both sides.
“I believe that the ESA elevates the interests of the turtles above the interests of the people,” Rudy Andre said, referring to the Endangered Species Act.
“I don’t think I’ve ever felt unwelcomed here before, but I do now,” Jane Culpepper, a long-time supporter of environmentalist causes, said, before going into a long account of various battles environmental protection has lost in recent years, from beach bonfires to manatee speed zones on the Intracoastal.
“To me, clearly, we are having tradition versus law,” JoAnn Ricardi said toward the end of the debate. “At least that’s the way it strikes me. And Joy I couldn’t agree with you more. As an old Irishman, I don’t like people to tell me what to do, but when you get to be as old as I am, you will have learned that there are many times you just have to do the thing that’s right.” She continued: “I’d like to go back to 52, 55, 60s, when life was a lot more fun and a lot less complicated. But when you butt up against the law and there is a law, and you know what that one is, and you are willing to say to the town, that’s OK, we’ll try to come up with some statistics and tell them they’re wrong, I think that you may be doing a disservice to this community by opening us up to something that we really don’t want. Your counsel has told you a couple of times that maybe it’s not a good idea, and that’s what you have him for. I really, really, would like you to give a great deal of thought before you take this community down a path that could be very, very financially deficient, and I say that as a taxpayer.”
Dick Ricardi was next with his lifeline, and the commission’s 4-1 vote.