When a Local Government Trespasses a Citizen from Public Property: Palm Coast Is Adopting New Rules

Two individuals currently have been issued trespass warnings regarding city property that, if violated, would result in their arrest. One dates back several years, to the previous administration, but is still in effect. A second is only a few weeks old. The warnings apply to any city property, including municipal parks, utility buildings and City Hall offices or meeting venues, but of course not streets. 

The proposed ordinance the council is expected to approve on first reading at its meeting next week would put a two-year limit on trespass warnings and provide exceptions to the warning. It would also allow the person trespassed to appeal. None of those measures are in place currently. In fact, there was no ordinance, no stated policy or explicit procedure in place, raising potential legal issues, though both trespass warnings were issued by the sheriff’s office in accordance with law, city officials said, as they would be in any other venue when requested. The thornier legal issues in public venues involve an individual’s First Amendment rights and the right to access public venues to conduct legitimate business that cannot be conducted elsewhere. 

“This is an opportunity for the city to establish some constitutionally adequate procedural protections for trespass warnings,” City Attorney Bill Reischmann said. “Trespass warnings are lawful efforts and are allowed under state law to protect and respond to a threat of public safety and protect the public welfare. Trespass warnings have been in the state of Florida for a long, long time. They’re issued by local governments, and more importantly by sheriffs, by police. That’s not new. What we’re doing here is creating a process, codifying a  process, that will provide for these protections, these procedural protections, notice and an opportunity to be heard.”

The 11th Circuit Court of Appeals in 2011 struck down St. Petersburg’s trespass ordinance to the extent that it did not have an appeals process. That appears to have been remedied here.

An appeal may be filed in writing within 10 days. The process is explicit. A special magistrate, not a council member or a staffer, will hear the appeal and make a determination. But the city hires and pays the special magistrate. It’s not unusual, though it’s the same process the city used during the controversial years of red-light camera hearings, and the same process it uses for certain animal-control hearings. In a trespass case, the special magistrate must hear an appeal within 40 days of a request, with all city documents relevant to the case made available to the trespassed person at no cost. It would be a quasi-judicial hearing, with both sides granted the right to question witnesses, have attorneys and so on, but the burden of proof rests on the city. The special magistrate would then issue a written decision within five days. That decision is final as far as the city is concerned, but still may be appealed in court.  

There is also a built-in allowance for exceptions to the trespass warning, as explained in the proposed ordinance: “The City Manager, or his/her designee, may upon request, authorize an individual who has received a trespass warning to enter the property or premises to exercise his or her First Amendment rights if there is no other reasonable alternative location to exercise such rights or to conduct necessary municipal business. Such authorization must be in writing, shall specify the duration of the authorization and any conditions thereof, and shall not be unreasonably denied.” 

Reischmann said the proposed ordinance “is comparable to if not identical to the other jurisdictions that have done this, and it is consistent with the federal and state case law that is not applicable specifically to trespass warnings in this situation but there were some cases dealing with the homeless, and there were some trespass warnings associated with that.” 

City Council member Bob Cuff was surprised only two trespass warnings have been issued by the city over the years. 

One trespass warning, still in effect as far as the city is concerned, City Manager Matt Morton said, dates back to November 2016, regarding Dan Priotti, a contractor with a history of professional and disciplinary issues, regarding “verbal threats to the point where employees are concerned for [their] safety,” according to the warning document. The document includes two statements signed by a city official that allege threatening statements by Priotti. 

Priotti, who’s challenged the warning, has been in contact with Morton to resolve the issue. “I know he’s been asking questions,” Morton said. “I get emails from him occasionally, sometimes they’re more combative, sometimes they’re more sincere. I don’t know what day I’m going to get which.” 

“I had told you there was no reason to talk about the past but to move forward in a positive directions [sic.],” Priotti wrote Morton in mid-December, referring to a September meeting he had with the manager. “You mentioned you would look into this [and] get back with me.” He subsequently wrote Reischmann, threatening “a defamation of character lawsuit.” and stating: “Are we going to continue to act childish with this matters.  Or are we all going to act as adults and go on with our lives?” (He has also threatened FlaglerLive with a lawsuit over an Aug. 2019 article documenting his history of disciplinary issues.)

The second warning was issued on Jan. 6 to Robert Caparanis, a member of the sheriff’s Citizens Observer Patrol, or C.O.P., the unarmed corps of volunteers who assist law enforcement. Caparanis, the warning alleges, “has exhibited hostile and adversarial actions and gestures towards employees of the Palm Harbor Golf Course/Club. Many of these have been done in public and there is concern that his actions may eventually involve the public and/or other patrons of the golf course.” (Caparanis is no longer a C.O.P. volunteer. “He was relieved of his role,” a Fagler County Sheriff’s spokesperson said, “when we learned of his issues with the city.”)

“These are sparingly used,” Reischmann said of the warnings, “and they are used to support and protect what has been recognized by the federal and state courts as a substantial public interest in discouraging unlawful activity, and importantly, in maintaining the safe and orderly environment for the operation of city work. And so what we’re trying to do is balance, we’re trying to balance that underlying objective of maintaining that public safety in public places, for the public and the employees, against the rights of those folks who may receive one of these trespass warnings.” 

Council members were largely supportive of the proposed ordinance. 

“Usually it takes a lot for us to trespass someone. It takes a lot,” Eddie Branquinho, a retired cop, said. “They really have to use and abuse, from what I understand, OK. And we’re simply just not going to say listen, you’re a persona non grata, we don’t want you here. I don’t think that’s the idea behind this. This is basically for the people that actually create a safety [issue] for our, either property or customers that come in here.”  

“No one on this council has trespassed anyone, let me make that very clear,” Mayor Milissa Holland said. “Again, this goes back to the fact that my understanding, the one in particular case is a long-standing case that former city manager had made the determination was necessary for the safety of his staff, frankly, in this organization.” She was alluding to the Priotti case. “So nothing to do with the mayor, nothing to do with council. This process that you’re proposing allows for a due diligence process when it’s determined that that’s necessary.” 

Holland sees the ordinance as making a distinction between city staff and elected officials. “It is important that this council–it goes back to the due process–remains removed from this,” she said. “It’s one thing when someone makes a threat directly at one of us, which has happened to me, as a public official. But it’s vastly different when you’re talking about protecting employees of an organization. I do think we have a form of government for a reason, and the day to day operation is run by our city manager. I think that needs to be respected. This gives another process a play to have an independent judicial hearing officer hear all the evidence, and then come to a determination on what’s best.” 

Council member Bob Cuff, an attorney, while lending the ordinance support, stressed the importance of due process for individuals affected. “Frankly the way the world is going as everybody says sometimes scares me to death,” Cuff said. “But I think depriving anyone of their right to access public facilities or access the staff or their elected officials is a serious matter.”

Cuff was equally concerned for the safety of the public on city property, where a large number of people frequent public grounds on the assumption that they’re safe. “It’s a very delicate situation,” he said. He noted the useful avenues of appeal that can now apply retroactively to the two warning cases in effect. “The ordinance is a good step in the right direction, and if it allows us to revisit any of the outstanding issues we’ve had, or at least provides us with a clear direction going forward. I’m happy to hear we’ve only had two of these situations. I’m frankly a little surprised we only have two.” He added: “Telling somebody that they can never come on city property again is a serious thing and it needs to be done only when there isn’t any other alternative to keep the public safe.” 

Council member Jack Howell was particularly concerned about the lack of procedures until now that could give those warned an alternative: “It’s almost like without this ordinance there’s no direction to come back or how to come back in good graces,” he said. “You’re kind of like, exiled, you know, and at least this way these folks, they have a course they can follow, and it’s in writing. So this is good.”