The Tavares-based attorney representing the owner of a defunct Fruitland Park restaurant has asked a Lake County judge to toss out a lawsuit that was brought against him on what appears to be a technicality.
Lindsay Holt, of Crawford, Modica & Holt, is representing Burke’s BBQ owner Timothy D. Burke in his fight against a lawsuit filed in late August by the city of Fruitland Park. The suit was filed by City Attorney Anita Geraci-Carver after Burke failed to follow through with a commitment to hook up to the city’s water and sewer systems, install a fire hydrant at the restaurant, located at 311 County Road 466A, and pay significant impact fees.
Burke had signed an agreement in April 2012 stating that he would have a six-month window to honor his agreement once sewer and water hookups became available to him. Last year, the city sent Burke two letters giving him until Oct. 6, 2018 to take care of the issues. Another letter was sent in March giving him until June 19 to follow through with his promise, and when that didn’t happen, Fruitland Park commissioners voted to move forward with the lawsuit.
Holt, however, claims the suit isn’t valid largely because the city’s beef is with Burke’s Bar-B-Que Co., not Burke himself. She claims that Burke signed the document in his capacity as a shareholder/owner of the business, not as an individual.
“The main body of corporate law in Florida is to the effect that directors, officers and shareholders are not liable for corporate acts simply by reason of their official relation to the corporation,” she wrote. “Further, the City has not alleged any specific wrongful or egregious acts committed by Burke which would subject him to liability apart from the corporate entity.”
Holt also asked the judge to dismiss the complaint with prejudice, which would amount to a final judgment and prevent the city from amending the suit. Holt said any attempt by the city to “overcome this deficiency” or amend the complaint “would be futile.”
Geraci-Carver said she plans to look over Holt’s motion carefully and then confer with commissioners on the next step. She said she typically would either amend the complaint if need be or ask the judge to move forward with a hearing.
The decision to file suit against Burke was led by Commissioner Patrick DeGrave, who lives in The Villages portion of the city. He said it’s a fundamental issue for him and has nothing to do with who owns the property.
“You signed an agreement, honor the agreement,” he said at an August commission meeting. “I think that’s the message the city has to send any property owner. You come in and make a deal with us, expect to live up to the deal.”
Burke’s BBQ announced on its Facebook page on July 25 that the restaurant would be closing. It followed up with posts on July 29 announcing a going-out-of-business sale scheduled for the following day. The public and other restaurant owners were invited to attend and purchase supplies and equipment that was still inside the building.
In the past, commissioners also have expressed concerns about the initial plan for fighting a fire at the wooden restaurant building – pumping 10,000 gallons of water from a nearby private swimming pool through a high-pressure hose. The closest fire hydrants are quite a distance away and their use would require CR 466A – the major thoroughfare into The Villages – to be shut down if the city’s fire department had to run hoses from them to battle at blaze at the structure.
Fruitland Park Fire Rescue Chief Donald Gilpin also has pointed out that the pool water has algae in it and he’d be quite hesitant to run it through a fire engine’s pump because it could severely damage it. He said Lake County’s dispatch center has been made aware that if a fire is called out at the building, a water tanker task force needs to be activated to respond.
Last month, commissioners were told that developers Paul and Tim Rohan, Carl Curly and Daniel Gibbs were actively pursuing a plan with Lake County to build the Sun Recreational Vehicle Development park on a 90-acre plot of land owned by the Burke family. It would include spaces for 631 RVs, many of which could be permanent, mobile-home-type models.
The commission expressed fears of the park being a way to bring low-income housing to the area and sent a letter to Lake County officials explaining its opposition and suggesting other uses for the property would be more beneficial.
Paul and Tim Rohan are the brothers of John Rohan, the longtime director of recreation for The Villages. Their proposed RV park, which is located where Burke’s Tree Farm currently sits, would back up to Villages homes along the Lake/Sumter County line and include a 3.4-acre “Amenity Village” that would offer a clubhouse with a pool, as well as multiple bathhouses and two lift stations.
It doesn’t appear that the property where Burke’s BBQ is located would be part of the 90-acre sale for the RV park. Geraci-Carver has assured commissioners that any new owner of the property where the restaurant building sits would be required to resolve the issues with the city, which will likely cost them about $110,000.
