By ChrisAnn Allen
The end might be in sight. Or perhaps a new beginning.
Attorney Casey Colburn, representing Gilligan’s Island Bar & Grill, and David Pearce, Sarasota County assistant attorney, gave closing arguments Dec. 19 via Zoom before special magistrate Scott Steady to potentially close the matter of later live music at the popular Village establishment, located at 5253 Ocean Blvd.
Currently, per Sarasota County, ordinance, Gilligan’s must end live music at 10 p.m. unless it has a special exception. The establishment stays open until 2 a.m. and seeks the opportunity to possibly have performances go that late.
Following a failed mediation attempt at a settlement, Steady heard both arguments and will issue a recommendation to the Sarasota Board of County Commissioners by Jan. 12.
During the session, Steady emphasized, according to state statute, his order is not final — just a recommendation as to whether the county’s initial decision not to extend the hours for live music at Gilligan’s was “unreasonable or unduly burdened the property” and thus the matter should be reheard.
“It is a recommendation,” Steady said. “It is not binding.”
The application for the special exception was initially heard by the planning board Dec. 1, 2022, where it was unanimously approved by five of nine planning commissioners present. According to Colburn, changes to the application, which did not make it into the report presented to planning commissioners, were made between staff and Gilligan’s representatives, eliminating the use of the back parking lot as part of the special exception application. Staff and members of the public were concerned with mitigating sound issuing from the lot. This was explained by Colburn to the planning commission, which then approved the application with stipulations.
However, when the application was presented Jan. 31 to the county commission, changes to the staff report were not completed and the parking lot was still included. Colburn said he was surprised, but expected commissioners to approve the special exception anyway, based on the planning commission’s recommendation. Instead, the commission voted it down 4-1 with commissioner Mark Smith, a Siesta Key resident, casting the sole supporting vote. Then, near the end of the meeting, an additional motion for reconsideration was voted down 3-2.
During the Dec. 19 session, Colburn posed the question of why the county resisted correcting the “staff’s admitted mistake” and asserted it involves the public’s insistence in “peace and quiet,” and the notoriety of the establishment under the previous owner, who sold the property to the Gilligan’s owner (doing business as Nocturnal Properties) in 2001.
“Could it simply be that the senior county staff, the BCC and the county attorney are all just trying to show the applicant who’s boss?” Colburn said. “It sure feels like it. The record confirms it.”
Colburn also challenged the county commissioners’ individual statements for denial, and said “None of the commissioners cited any evidence that the site would be any louder or intense with live, human performers leading up to 2 a.m. than it currently is with recorded music and video at those hours.
In conclusion, Colburn said that the county attorney’s refusal to disclose the falsehoods and misrepresentations contained in the staff report, leading to the commission’s denial, was unreasonable under state law and rules of professional conduct.
Pearce led the county presentation stating Nocturnal Properties’ application was “tone deaf.”
“We have a fundamental difference in opinion and perception of the way the public hearing occurred in this matter,” he said.
Pearce said the application was tone deaf because there was a history of denial for a previous special exception application in 2001 for entertainment limited to an inside stage until 1 a.m. The 2023 application requested a more intensive use, with live entertainment outdoors with no time constraints. He said, according to state statutes, the property owner can be granted relief if the current order is “unreasonable or unfairly burdens the use of the owner’s real property,” and that is not the case for this matter.
Pearce also stated only three special exceptions for live entertainment have been granted in Siesta Key Village and all were more than 20 years ago, on the west side of Ocean Boulevard, and each have included mitigation measures.
Pearce said, in summary, Nocturnal Properties had the opportunity to elucidate its mitigation efforts during the public hearing, that county staff “correctly presented” the concept plan submitted by the owner, and any alleged error was irrelevant given the 4-1 commission vote. Additionally, the owner did not provide sufficient mitigation measures to justify a special exception and the current standing is not unreasonable or unduly burdening his use.
In his rebuttal, Colburn continued with his assertion that the past 20 years of operation have shown the current owner of the establishment, Siesta Key resident Scott Smith, follows the rules as evidenced by just one code violation during that time and concluded the errors to the staff report were the fault of the entire matter.
“That’s the genesis of this whole situation,” Colburn said. “If those had been corrected or if the commission had been given the chance to weigh that and decide what to do about it, we wouldn’t be here where we are now.
“And I believe that failure to do that on the county’s part was unreasonable.”