IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT

IN AND FOR HENDRY COUNTY, FLORIDA

WILLIAM STEPHENS, CAROL GREY, and Case No. 2014-CA-633

KEELY CINKOTA,
PLAINTIFFS RESPONSE IN
Plaintiffs,
OPPOSITION TO DEFENDANTS
MOTION TO DISMISS
v.
HENDRY COUNTY,
Defendant.

INTRODUCTION
This is an action by Florida citizens seeking relief from Sunshine Law violations
committed by Defendant Hendry County when it secretly approved the construction of SoFlo
Ag a breeding facility that will house thousands of wild and exotic primates. The PlaintiffCitizens (Citizens) are Hendry County and Lee County residents who live in the residential
neighborhood immediately adjacent to the proposed facility, but who had no opportunity to
participate in any decision-making processes as required by the Sunshine Law. Compl. 911. Hendry County kept the Citizens and other community members in the dark while it met
in back rooms with proponents of the breeding facility and made significant decisions
expanding its agriculture zoning policies from domestic livestock to wild and exotic animals.
Compl. 21-38.
The Citizens concerns about this facility involve important issues of property rights
and public safety. Indeed, the public safety risk alone from these wild animals has the potential
to significantly impact the surrounding community. Compl. 49-50. The primates to be
housed in Hendry County are macaques (pronounced mkk) that are known to transmit
-1-

a wide array of serious and fatal diseases to humans such as Ebola, Herpes B, tuberculosis,
and parasites. Compl. 49. Unlike typical agricultural operations, management of the
macaques will require highly specialized expertise to properly care for and clean up after the
primates, keep workers safe from disease transmission, and protect the public from escaped
monkeys. Comp. 49-50. The Citizens have the right to be concerned as macaques have
escaped from breeding facilities in Florida in the past and have injured people. Compl. 51.
For example, a macaque escaped from a breeding facility and bit a person. Scorza v. Martinez,
683 So.2d 1115, 1115-17 (Fla. 4th DCA 1996). In the subsequent lawsuit, the court held that
the breeder was strictly liable for damages because macaques are wild animals, and
conveyed that [the] monkeys are a mildly aggressive breed known for carrying the Herpes
B virus. Id. at 1116-17.
Despite the valid concerns of its own citizens, the County seeks to dismiss this lawsuit
not because it claims that its citizens were fully informed about the facility prior to its
approval but because approval of the facility did not take place at a meeting with two
county commissioners. See Def. Mo. Dismiss 8. In doing so, the County does not dispute
that the decision to locate the primate facility took place behind closed doors. Rather it seeks
to dismiss the Citizens complaint on the ground that the Countys objectionable actions were
taken by Planning and Zoning Department staff who are not members of a board or
commission. However, the Countys claim directly contradicts the Supreme Court of
Floridas position that the Sunshine Law applies to any entity that performs a policy-based,
decision-making function regardless of whether that body is called a board, commission,
committee, or something else. See Wood v. Marston, 442 So.2d 934, 938-39 (Fla. 1983). In
other words, the focus of the Sunshine Law inquiry should be on the nature of the act
performed, not on the make-up of the committee. . . . Id. at 939 (emphasis in original).

-2-

In this case, Hendry County staff members, officials, and special interest
representatives met several times behind closed doors and made significant zoning policy
decisions without any public oversight or input. Compl. 21-38. Specifically, in these secret
meetings, county staff extended the definition of agriculture in the zoning code from domestic
animals (i.e. livestock) to include the housing of thousands of wild and exotic macaques.
Whether this decision occurred with zero or twenty commissioners present, the result is the
same Hendry County performed a decision-making function at closed-door meetings and this
constitutes a violation of Floridas Sunshine Law. As such, the Citizens have pled a sound
cause of action for injunctive and declaratory relief and Hendry Countys motion to dismiss
should be denied.1
STANDARD OF REVIEW
A movants request to dismiss a complaint for failure to state a claim should not be
dismissed unless the movant can establish beyond any doubt that the claimant could prove no
set of facts whatever in support of his claim. Ingalsbe v. Stewart Agency, Inc., 869 So.2d 30,
35 (Fla. 4th DCA 2004). Furthermore, [i]n ruling on a motion to dismiss, the trial court must
look only within the four corners of the complaint, accept the plaintiffs allegations as true,
and resolve all inferences in the plaintiffs favor. Lutz Lake Fern Road Neighborhood Groups,
Inc. v. Hillsborough Cnty., 779 So.2d 380, 383 (Fla. 2d DCA 2000); see also National
Ventures, Inc. v. Water Glades 300 Condominium Assn, 847 So.2d 1070, 1073 (Fla. 4th DCA

Without any discussion or analysis, Defendant asserts that the subject action is
frivolous. Defendants Motion to Dismiss, 14. As is apparent in Plaintiffs response to
Defendants Motion to Dismiss, it is Defendants claims that are without merit. Regardless, a
claim brought under Floridas Sunshine Law must only be justiciable and application of that
principle must be broadly construed. Bland v. Jackson Cnty., 514 So.2d 1115, 1115-16 (1987)
(reversing trial courts finding of frivolity by recognizing the established law that the
Sunshine Law is to be broadly construed to effect its intended purpose of protecting the public
from closed door politics.)
-3-

2003) (When ruling on a motion to dismiss for failure to state a cause of action, a trial court
must accept the allegations of a complaint as true and in the light most favorable to the
plaintiffs.).
ARGUMENT
I.

The Court should deny Hendry Countys motion to dismiss because the Citizens
complaint demonstrates that the County violated the Sunshine Law when its
agents performed a decision-making function by determining zoning policy
without a public meeting.
The Sunshine Law provides that official acts by Florida counties must be taken at a

public meeting after reasonable public notice: [a]ll meetings of any board or commission . .
. of any county . . . at which official acts are to be taken are declared to be public meetings
open to the public at all times, and no resolution, rule, or formal action shall be considered
binding except as taken or made at such meeting. 286.011(1), Fla. Stat. If such a meeting is
to be held, the public must be given reasonable notice of the meeting. Id.
This purpose of the Sunshine Law is integral to fundamental principles of our nations
democracy: [t]he right of the public to be present and to be heard during all phases of
enactments by boards and commissions is a source of strength in our country. During past
years tendencies toward secrecy in public affairs have been the subject of extensive criticism.
. . . One purpose of the Sunshine Law [is] to maintain the faith of the public in governmental
agencies. Bd. of Public Instruction of Broward Cnty. V. Doran, 224 So.2d 693, 699 (Fla.
1969). That is why it is well settled that the Sunshine Law must be liberally construed to
promote the laws purpose of ensuring open government. The Sunshine law was enacted in
the public interest to protect the public from closed door politics and, as such, the law must
be broadly construed to effect its remedial and protective purpose. Wood, 442 So.2d at 938
(citations omitted). Put another way, [t]he statute should be construed so as to frustrate all
evasive devices. Id. at 940 (citing Town of Palm Beach v. Gradison, 296 So.2d 473, 477 (Fla.
-4-

1974)). The statute must also be interpreted most favorably to the public. Bd. of Public
Instruction of Broward Cnty., 224 So.2d at 699.
In line with its purpose to promote open government, the Sunshine Law applies to any
government action that rises to the level of a policy-based, decision-making function even if
the action is taken by staff or other persons who are not technically part of a board or
commission. Wood, 442 So.2d at 938. In Wood, a committee performed a search-and-screen
function on behalf of the university president to select candidates for a new dean without
holding a public meeting. Id. at 936-37. The committee did not have authority to make the final
choice, but it did eliminate candidates before forwarding the list of best-qualified candidate for
final selection. Id. at 937. While the committee had a simple fact-gathering role in soliciting
and reviewing and compiling the applications, it also had an undisputed decision-making
function . . . [in] deciding which of the applicants to reject from further consideration that was
delegated by the university president. Id. at 938. Accordingly, the court held that the committee
was subject to the public meeting requirement of the Sunshine Law. In so holding, the court
emphasized that the focus of the Sunshine Law inquiry should be on the nature of the act
performed, not on the make-up of the committee. . . . Id. at 939 (emphasis in original).
Moreover, courts have held that decisions related to zoning policy qualify as a decisionmaking function subject to the Sunshine Law even if those actions are taken by staff or other
persons who are not technically sitting on a board or commission. In Town of Palm Beach, the
city council appointed a citizen planning committee to assist in the revising the local zoning
ordinances. 296 So.2d at 474. The committees influential advisory ability to make tentative
decisions guiding zoning planners was sufficient to subject its actions to the requirements of
the Sunshine Law despite the fact that the city council retained ultimate authority to make
changes to the zoning ordinance. Id. at 475.

-5-

Here, the type of decision made in the present case falls squarely within the ambit of
the Sunshine Law. The power to shape zoning policy is a decision-making function and is
wielded by the Board of County Commissioners who must ordinarily make such
determinations at a public hearing. See 125.01, Fla. Stat. (county commissioners have
legislative power to establish, coordinate, and enforce zoning [regulations]); Hendry County
Code of Ordinances 1-53-3.1, 1-51-5, & 1-51-6 (land uses that do not strictly conform to
their zoning category require a variance or special exception that must be granted at a public
meeting).
Significantly, Hendry County does not have an ordinance regulating the use or
possession of wild or exotic animals such as the primates who will be housed the breeding
facility. See Hendry County Code of Ordinances Chapters 1-5 (animal control) and 1-53
(zoning). In contrast to many other Florida county ordinances that specifically deal with wild
and exotic animals, the Countys ordinances only contain provisions for domestic livestock
under the general agriculture zoning category. See Code of Ordinances Chapter 1-53. Code of
Ordinances 1-53-2.2 defines agriculture as animal and poultry husbandry, and animal
husbandry is in turn defined under the dictionary as the care and production of domestic
animals.

See

Animal

Husbandry,

MERRIAM-WEBSTER

ONLINE,

available

at

http://www.merriam-webster.com/dictionary/animal%20husbandry (last accessed January 11,

2015); Compl. 46. In other words, the Code is completely silent as to the permissibility of
housing thousands of wild and exotic animals under agriculture or other zoning.
Instead of addressing this important issue at a public hearing and through the processes
mandated by statute, Hendry County went behind closed doors and made an important zoning
policy determination by allowing county staff members, county commissioners, and special
interest representatives to extend general agriculture zoning from domestic animals (i.e. animal

-6-

husbandry) to the thousands of wild and exotic primates who will be housed at the SoFlo Ag
breeding facility. Compl. 21-38. Hendry County performed this decision-making function
over the course several different meetings that all occurred behind closed doors in violation of
the Sunshine Law:

On June 14, 2012, at a conference where Myra Johnson and Sarah Catala
from the Countys Planning and Zoning Department, private developers Rock
Aboujaoude and David Rolls, a real estate broker, and two other individuals
determined that breeding thousands of wild and exotic primates was an
allowable use in general agriculture notwithstanding the fact that animal
husbandry under general agriculture only applies to the care and production of
domestic animals (Compl. 21-23);

On May 23, 2013, when the Planning and Zoning Department sent a letter to
Rock Enterprises notifying the developer that SoFlo Ags Site Development
Plan (SDP) was approved, including the fact the facility would be properly
zoned (Compl. 35);

On July 23, 2013, when County Commissioner Karson Turner, County

Administrator Charles Chapman, City Attorney Mark Lapp, and Planning and
Zoning Department employee Sarah Catala decided in a series of emails that
the SoFlo Ag wild and exotic primate breeding facility qualified as general
agriculture zoning and that a public hearing was unnecessary (Compl. 3536).
Despite the fact that the proper analysis of a Sunshine Law claim should focus on the

nature of the decision made, the County nevertheless asserts that a claim can be defeated
because two commissioners were not present at a meeting at which decisions were made,

-7-

regardless of the impact or scope of the decision. Def. Mo. Dismiss 8. However, the mere
fact that these actions were not taken at a meeting of two commissioners is immaterial as the
focus should be on the nature of the act performed, not on the make-up of the committee. . .
., as explained above. Wood, 442 So.2d at 939 (emphasis added). Indeed, the Attorney General
has opined that government bodies that are not normally subject to the Sunshine Law will be
subject to the public hearing requirement any time that body assumes the official duties and
responsibilities of [a] board or commission. Op. Atty Gen. Fla. 079-63 (1979). As stated in
the Complaint, the Hendry County decision-makers in fact assumed the function of the Hendry
County Board of County Commissioners when they made policy-making zoning decisions that
a large wild primate breeding facility qualified as agriculture for zoning purposes. Compl.
21-36.
Furthermore, the question of whether a meeting need even occur for there to be a
Sunshine Law violation was long ago settled in the negative by Times Public Company v.
Williams. 222 So.2d 470 (Fla. 2d DCA 1969), overruled on other grounds by Neu v. Miami
Herald Pub. Co., 462 So.2d 821 (Fla. 1985). In Times Public Company, the Court addressed
the history of the Sunshine Law which, in earlier versions and based on prior caselaw, could
have been construed to require a meeting by commissioners as the County appears to suggest.
See Times Public Company, 222 So.2d at 472-73. However, the Court noted that prior to the
enactment of the Sunshine Law, there was an open meetings law that focused on the
formality of the meeting at which joint discussion occurs, and found that the legislature
amended the Sunshine Law to reach the entire decision-making process. Id. (emphasis in
original).
Indeed, mere logic dictates that the legislature never intended to create such a gaping
loophole that would give public bodies a way to easily evade the requirements of the Sunshine

-8-

Law. Given the importance of the law in a democratic society that is intended to restore
confidence in government, it would be absurd to allow these principles to be thwarted by
allowing a rigid rule to undermine otherwise valid Sunshine Law claims. See Town of Palm
Beach, 296 So. 2d at 475 (recognizing that creating an open market place of ideas would
instill confidence in government). In fact, a rule such as the one proposed by Hendry County
that two county commissioners must be present at a meeting for a Sunshine Law to even
proceed would promote the very "hanky panky" that the law was designed to curb. Bd. of
Public Instruction of Broward County, 224 So. 2d at 699 (recognizing that secret meetings,
closed records, executive sessions, and study sessions have become synonymous with hanky
panky in the minds of public-spirited citizens.). Were the Countys position be allowed to
stand, government officials could merely orchestrate a decision-making process whereby two
commissioners are never present at the same meeting and defeat any Sunshine Law claim.
Such a result would certainly not promote the laws fundamental purpose of instilling
confidence in government.
The County puts forth two cases in support of its position, neither of which are on point
because they do not involve staff members performing a decision-making function. In Sunrise
v. News & Sun-Sentinel Co, the first case relied upon by the County, the Fourth District Court
of Appeals held that a disciplinary action against an employee did not qualify as a decisionmaking function where it was undertaken pursuant to a mayors executive authority rather than
the policy-making authority of a board or commission. 542 So.2d 1354, 1355-56 (Fla. 4th DCA
1989). The key issue in the courts decision was the fact that no commission or other body had
any oversight over the decision that was made. Rather, the Mayor was acting under a personnel
statute that granted him sole decision-making authority. Id. at 1355-56. The Countys reliance
on Florida Parole and Probation Commission v. Thomas, is equally misplaced as it involved

-9-

a procedural decision to appeal an administrative order that was performed in the normal course
of legal business that did not qualify as a decision-making function that would trigger the
Sunshine Law. 364 So.2d 480, 481 (Fla. 1st DCA 1978).
Accordingly, the Citizens properly alleged violations of the Sunshine Law in their
complaint by demonstrating that Hendry County performed a significant decision-making
function when it made decisions with regards to zoning policy for wild and exotic primates
that do not qualify as domestic animals or livestock under the current zoning ordinance.

II.

Alternatively, the Court should deny Hendry Countys motion to dismiss because
the motion relies on factual assumptions that should be resolved on summary
judgment or at trial.
Florida courts recognize that certain claims are better addressed on a summary

judgment motion, or at trial, when the outcome of the case may rest on the development of the
facts. See Chodorow v. Porto Vita, Ltd., 954 So.2d 1240, 1242 (Fla. 3rd DCA 2007). In such
cases, a motion to dismiss should not be granted as such motions are designed to test the legal
sufficiency of a complaint and not to determine any factual issues. The Fla. Bar v. Greene,
926 So.2d 1195, 1199 (Fla. 2006) (emphasis added).
Here, the Citizens firmly believe that the everything within the four corners of the
complaint sufficiently describes a decision-making process taken by County staff, special
interest representatives, and at least one commissioner that is subject to the Sunshine Law. See
supra at Argument I. However, should the Court find the issue of whether additional
commissioners were involved in the decision-making to be relevant, at the very least, the Court
should deny the motion to dismiss in order to provide Citizens with the ability to establish
additional facts. Prior to filing the complaint, the Citizens only had access to public records.
As such, there was no opportunity to establish the undisputed facts through a summary

-10-

judgment motion or to conduct discovery to determine information such as the identities of

public officials involved in the approval the SoFlo Ag facility, or the method or degree of their
involvement. These details may significantly strengthen the Citizens' argument that the zoning
policy meetings took place in violation of the Sunshine Law.
Accordingly, any decision by the Court that involves the extent and nature of the
commissioners involvement in the SoFlo Ag zoning policy decision is better left to resolution
on summary judgment or a trial instead of a motion to dismiss.
CONCLUSION
Hendry County staff, officials, and special interest representatives performed a policybased decision-making function when they decided that breeding thousands of wild and exotic
primates at the proposed SoFlo Ag facility qualified as agriculture zoning. The fact that it may
not have occurred with two county commissioners present at the same meeting is irrelevant.
The relevant inquiry in this case is that the Codes agriculture zoning is limited to animal
husbandry which in turn is limited only to the care and production of domestic animals. By
contrast, the wild and exotic primates who will be housed at the SoFlo Ag facility will
significantly change the character of the community and may pose a public health threat due
to the ability of nonhuman primates to carry dangerous diseases like Ebola, Herpes B,
tuberculosis, and parasites. By expanding the definition of what constitutes domestic animal
husbandry, the County engaged in a decision-making process, yet the Citizens who live near
the proposed facility had no opportunity to voice their concerns despite being gravely affected
by its construction.
The Citizens have a right to relief under the Sunshine Law, and this Court should deny
Hendry Countys motion to dismiss the lawsuit.

-11-

Respectfully submitted,

Dated: January 12, 2015

/s Justine Thompson Cowan

Justine Thompson Cowan
Florida Bar Number 98806
cowan@cowannonprofits.com
COWAN CONSULTING FOR
NONPROFITS, PLLC
525 Richmond Street
Orlando, FL 32806
(404) 274-0179
Attorney for Plaintiffs
/s Christopher A. Berry
Christopher A. Berry
CA Bar No. 283987
ANIMAL LEGAL DEFENSE FUND
170 E. Cotati Avenue
Cotati, CA 94931
(707) 795-2533
Pro hac vice application pending
Attorney for Plaintiffs

-12-

CERTIFICATE OF SERVICE
The undersigned certifies that a true copy of this document has been served by email
to Mark Lapp, Esq., Hendry County Attorney, on January 12, 2015.

/s Justine Thompson Cowan

Justine Thompson Cowan