It started as an eviction case. It ended as a First Amendment case. The First Amendment won. Flagler County government lost.
After deliberating 90 minutes Tuesday, a jury of four men an two women found that Flagler County had improperly sought to evict a tenant from a hangar at the county airport, and was doing so only in retaliation for the tenant’s criticism of Roy Sieger, the airport director, violating the tenant’s First Amendment rights.
It was a remarkable case on several levels: It invalidated the county’s eviction. It tied back into a controversy over the airport advisory board that the county arbitrarily disbanded in 2020, when the advisory board was raising issues of noise and overspending at the airport. It validated by jury verdict allegations of imperiousness on the part of the airport director. And it did so in a County Court trial, when First Amendment cases are usually handled in federal or circuit court.
The county filed its eviction suit at the end of January, thinking that’s all it would be. But that turned out to be a culmination of long-simmering animus between Sieger and Les Abend, the tenant.
“Revenge is a dish best served cold,” Dennis Bayer, Abend’s attorney, told the jury, arguing that Sieger was essentially taking his revenge on Abend with the eviction, more than two years after their previous clashes. The jury agreed.
Sieger, a county employee, is the director of Flagler Executive Airport–still more colloquially known, to his chagrin, as Flagler County Airport.
Abend is a licensed pilot for 49 years and a flight instructor who’s flown everything from gliders to the Boeing 777. He writes for various aviation journals and is an on-air analyst on aviation on various media, including CNN, NBC, MSNBC and FOX. He served on then briefly chaired the Flagler County Airport Advisory Board. He’d been renting a hangar at the county airport for his blue and white Piper Arrow plane for $321 a month since March 2018.
Tensions began to rise between the advisory board and Sieger not long after that. Then board members took their complaints to the County Commission, openly criticizing Sieger there as authoritarian and dismissive of their recommendations, especially on noise issues that neighbors wanted addressed. They subsequently criticized him for building what they considered to be an unnecessary “Taj Mahal” of a terminal in an airport that doesn’t have the traffic to support it. Sieger has always advocated for a terminal in an airport without one.
On Sept. 9, 2020, the County Commission didn’t think it needed the board’s advice anymore. It disbanded it. Abend saw Sieger’s fingerprints on the move. The county would later argue that Sieger had no authority to disband the advisory board, that it was entirely the purview of the County Commission. On paper, that’s true. In reality, the county’s claim is somewhat disingenuous: Sieger has always wielded authoritative control of the airport, with the administration’s blessing. “I and the commissioners have full confidence in Mr. Sieger’s operation of the Airport,” Petito wrote Abend last December. “I don’t typically involve myself in his daily affairs or any other department heads for that matter.” Commissioners were barely involved in the scrapping of the advisory board, and only on a ratifying basis when it voted to have it disbanded at the urging of then-Administrator Jerry Cameron.
A year passed. On Sept. 26, 2022, the county declared a state of emergency ahead of Hurricane Ian. Three days later, some 1,500 utility workers, contractors and others associated with recovery efforts staged at the airport in what “amounted to an instant makeshift city, including sleeping quarters, dining and showering facilities, in addition to trucks, heavy equipment and fueling stations,” in the county’s description.
The storm had left 46,000 customers, or 70 percent of the county’s population, without power. Some 2.1 million customers lost power across the state. But the airport had not closed: planes were still landing and taking off, “as shown in the flight logs for the relevant period of time,” court papers note. Two schools were continuing their flight lessons. Paying tenants had a harder time. One pilot complained to the Airplane Owners Pilot Association about difficulties accessing hangars. (The county claims the association found its handling of the emergency to have been “superb.”)
Abend had for six months planned to fly his plane to a wedding around that time. Hurricane Ian cleared the area the night of Sept. 29. The next day, two days ahead of Abend’s planned trip, he went to the airport to prepare. He noticed a few vehicles in the way, and had a “friendly” conversation with an FPL official, who said the vehicles would be moved by the time he needed to fly 48 hours later. Abend also texted and emailed Sieger, summarizing the conversation with the FPL official.
Sieger never responded (he would later claim that he’d been texted to his personal phone), though 24 hours later, Sieger emailed all tenants, asking them not to fly if they could help it, but that it would be arranged if they needed to. “Do not attempt to taxi your aircraft without assistance from airport personnel and do not interfere with the emergency response crews working on the field,” he wrote. In fact, emergency crews were not working on the field, only staging, or parking, their equipment there while they rested and waited for dispatching orders, as even pictures distributed by the county illustrated. The county at the time boasted about its role as a host of the big operation.
Nine weeks later, Sieger terminated Abend’s lease, giving him until last Jan. 13 to leave.
Abend was floored. He asked why, taking up the matter with Petito, who told him no reason need be given. Abend smelled something fishy, like that dish his attorney would later mention to the jury. He retained Dennis Bayer, the Flagler Beach attorney, and informed the county that he would contest the eviction.
“Sieger has shown a propensity to not accept and to resent any recommendations for airport operations from third parties, including the duly appointed volunteer advisory board,” Abend would argue in court, through his attorney. “Sieger has engaged in actions towards Abend that could be deemed hostile and retaliatory. Sieger has advised third parties that he thought Abend was seeking to have Sieger fired by the County.”
Assistant County Attorney Sean Moylan handled the case for the county. (He could not be reached before this article initially published.) The county “categorically” denied that Sieger was hostile or retaliatory, and reasserted the language of the lease: “Nothing in the lease agreement provides for a challenge to the 30-day termination, much less to do so by wrongfully retaining possession of public property,” Moylan wrote Bayer. “Mr. Abend’s indication of his intent to breach the agreement and follow whatever unwritten terms he unilaterally conjures demonstrates a haughty disdain for the Airport and for fair dealing.”
Bayer filed a motion to dismiss, arguing that the county should have stated a cause of action more precise than the “vague” allegations that Abend had interfered with workers at the airport. The county countered that it didn’t have to give an explanation, since the lease language gave either side the right to end the month-to-month arrangement with 30 days’ notice, and without further rationales. County Judge Andrea Totten denied the motion.
The county is right so far as the lease language goes: it didn’t have to give a reason. But it admitted that in the entire history of the airport, it had never unilaterally terminated a lease for no cause. And its retaliatory actions were not veiled: it doubled the rent on Abend.
“The County’s decision to terminate cannot be exercised in a manner that is either retaliatory, discriminatory, or unlawful,” Bayer argued. “In this instance, the termination is retaliatory and discriminatory towards [Abend] based upon Abend’s lawful exercise of his First Amendment right of free speech. … When combined with the way that [Sieger] eliminated the advisory board due, in large part to Abend’s advocacy, the termination here was taken for purposes of retaliation against Abend’s exercise of free speech. ”
Disarmed by its own history–that lack of evictions without cause–the county emphasized Abend’s interaction with the FPL official, characterizing it as interfering with the emergency. Abend called it a “fabrication,” and an attempt by the county to back-fill a reason to evict him.
While the airport had restricted access to tenants like Abend, a restriction that violate their lease, Bayer argued, tenants still flew their planes but did not see their leases questioned or terminated.
“My argument to them was why–why was my client selected to be the first to be treated this way,” Bayer said. “And the evidence pointed to being retaliation for his criticism of how Mr. Sieger was operating the airport.” The county tried to make it sound like it was a result of interfering with operations after storm, but Abend testified that he followed all the protocols established by the county. The connection with that history over the advisory board was unavoidable.
The jury in the two-day civil trial before Judge Totten had to answer two questions: “Did the Plaintiff, Flagler County, properly terminate [Abend’s] hangar lease?” The jury said No. (The case was actually against Abend’s company, Pen and Pilot, but he and his wife are the only principals.)
“Did the Plaintiff, Flagler County, improperly terminate the lease with [Abend] in retaliation for [Abend] exercising [his] right to free speech under the First Amendment to the United States Constitution?” The jury said yes.
Sieger, Petito and Charles Weaver, the FPL manager who’d handled the staging, testified for the county. Abend and Daryl Hickman, a former chairman of the airport advisory board, testified in defense.
Abend gets to keep his lease at the hangar (the county has 130 people on its waiting list for hangar space). But the terms are unclear.
“Certainly I won this for me, but in a way I won this for all the other tenants,” Abend said today, though he remains dismayed over the way the county handled, then ignored, then disbanded the advisory board even as the same issues of concern then continue today, not least among them noise.
“It’s just a shame the county didn’t take the advice of numerous people with numerous backgrounds that were trying to make the airport better, and they were doing it without compensation,” Abend said. All they were trying to do is “make the airport better and to make Roy Sieger look good, but it just fell on deaf ears. Two years went by and Roy found a reason to get rid of me, and the jury agreed.”