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Tuesday, Oct 16, 2018
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When is a seat not a seat? Restaurant takes beach town to court for answers

NORTH REDINGTON BEACH - A local restaurant owner just filed his fourth active lawsuit against this small beach town in a years-long legal battle over allowable number of seats and signage.

Town officials say all they want is for the Sweet Sage Café to limit its seating to 61 chairs.

The restaurant wants the freedom to decide when a table would be best set for two or four patrons.

The restaurant, a self-described "tranquil oasis loved by both locals ... and tourists," filed for a declaratory judgment in Pinellas Circuit Court last week, alleging a new town ordinance will cut its business nearly in half.

The week before, restaurant owner John Messmore amended his prior federal lawsuit filed in May against both the town and Pinellas County Sheriff Bob Gualtieri.

Messmore claims town officials and Sheriff's deputies violated his business's First, Fourth and 14th Amendment rights by allegedly trying to "punish" the restaurant for its successful First Amendment lawsuit filed in 2015 and won two years later, a ruling that cost the city $30,000 in legal fees.

Messmore is claiming the town, and specifically Mayor Bill Queen, are pursuing a vendetta against him.

"Why would they want to hurt the number one attraction in their town?'' What they are doing will cut my revenue by 40 percent," Messmore said.

Queen vehemently denies the town is trying to harm Messmore or his business, but rather is just trying to enforce the rules.

"Everything we have done is at the recommendation of our lawyers," Queen said. "We are not trying to run him out of business, but there are rules that he needs to follow."

The origins of the dispute date back to 2009 when the town enacted an ordinance establishing commercial parking space requirements based on seating totals that neither the Sweet Sage or the town's other restaurants could meet.

Most had lost more than half of their parking spaces when Gulf Boulevard was widened decades earlier.

All the affected restaurants were grandfathered and allowed to continue operating with their then-current seating provided they did not expand or add seats.

Based on an inspection conducted the day after that ordinance was passed, the Sweet Sage was assigned a maximum of 61 seats, including both inside and outside seating.

The Sweet Sage Café, 16725 Gulf Blvd., was inspected each year without issue until 2017 when the Sheriff's Office took over code enforcement duties.

In January of that year, the restaurant won a First Amendment case in federal court. That case challenged the town's sign ordinance and its order that Sweet Sage had to remove a number of signs.

The court agreed the removal was unconstitutional because the underlying ordinance was based on content, not merely size or location.

The town appealed, but later dropped that and paid Messmore $30,000 to cover his legal fees.

Since then, hardly a week has gone by without the town and Messmore being embroiled in a code-related dispute.

All the town's subsequent actions against Messmore are based on "sour grapes," according to Joe Kenny, one of his attorneys.

Last October, the first of what would become more than a dozen code inspections was held. Many, according to Messmore's attorneys, appeared to be timed to coincide with hearings or depositions or other legal actions take by the restaurant.

During the inspections, usually conducted without notice, an armed deputy would spend up to a half hour in the restaurant while counting seats.

The first inspection found 83 seats. On a re-inspection several days later, the total was 77. Another inspection in January found 89.

That number dropped to 70 a week later, but was still over the restaurant's officially assigned 61 seats and resulted in a code violation notice.

The restaurant removed some chairs and got the seating number down to 57 the next day.

Subsequent inspections in April again found excess seats and a code violation was again issued for having one excess seat.

In May, Messmore was called before the town's special magistrate for a formal hearing that could have resulted in a daily fine of $250 if he were found to have violated town codes.

But the magistrate, Lauren Christ Rubenstein, instead found inconsistencies in how the number of seats at the Sweet Sage were counted now and compared to the original count in 2009.

She recommended the town count actual patrons instead of seats, but the town decided instead to count according to a chart based on table size.

Messmore then appealed the magistrate ruling in addition to two more lawsuits pending against the town, one protesting "warrantless searches" when deputies were sent by the town to count chairs, and the other seeking court-ordered relief from the town's seat counting procedures.

"The town is now in the process of adopting two ordinances for no purpose other than getting the Sweet Sage Café," says Timothy Weber, Messmore's attorney. "The conduct of the town seems to be orchestrated by the mayor (and the city's attorneys). My client has never been found in violation of a single city code".

One of the city's attorneys, Rob Eschenfelder, said the restaurant has been "playing cat and mouse" removing chairs from one area while deputies count chairs in another dining area.

"This is part of what creates the difficulty," he said.

The courts will have the final say.

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