HomeMy WebLinkAbout10-09-2008 Winter Springs Golf CourseRECEIVED
0 C T 15 2008
CITY OF WINTER SPRINGS
OFFICE OF THE CITY CLERK
BRAWN, GARGANESE, WEISS & UAGRESTA, P.A.
Attorneys at Law
Debra S. Babb-Nutcher'
Joseph E. Blitch
Usher L. Brown*
Suzanne D'Agresta°.
Anthony A. Garganese°
William E. Reischmann, Jr.
J.W. Taylor
Jeffrey S. Weiss
Board Certified Civil Trial Lawyer
'Board Certified City, County & Local Government Law
'Board Certified Appellate Practice
VIA EMAIL
Ronald W. McLemore
City Manager
City of Winter Springs
1126 E. State Road 434
Winter Springs, Florida 32708
Offices in Orlando, Kissimmee, Cocoa,
Ft. Lauderdale & Tampa
October 9, 2008
RE: Winter Springs Golf Course
Dear Ron:
Tara L. Barrett
Vivian P. Cocotes
Scott J. Domstein
Robin Gibson Drage
Christopher H. Hunt
Katherine W. Latorre°
Terri E. Oster
Gary M. Glassman
Erin J. O'Leary'
Amy J. Pitsch
Catherine D. Relschmann°
Of Counsel
This letter follows my previous verbal opinion regarding the three questions posed
by you in your June 12, 2008 letter related to the statutory conservation easement held by
the City over the Winter Springs Golf Course ("Conservation Easement").
In general, you indicated that a group of people want to form a 501(c)(3) corporation
for the purpose of having joint enforcement power with the City over the Conservation
Easement. You ask:
1. Could this be done in the joint capacity as they envision?
ANSWER: Yes. The rights pursuant to a statutory conservation easement under
Section 704.06, Florida Statutes, may be assigned to a charitable corporation whose
purposes include protecting natural, scenic, or open space values of real property, assuring
its availability for agricultural, forest, recreational, or open space use, protecting national
resources, maintaining or enhancing air or water quality, or preserving sites or properties
of historical, architectural, archaeological, or cultural significance. §704.06(3), Fla. Stat.
(2007). Further, statutory conservation easements may provide for a third party right of
enforcement to enforce the terms granted to a governmental body under a conservation
easement, §704.06(8), Fla. Stat. (2007). In this case, the Conservation Easement also
specifically recognizes the City's right to transfer the rights granted under said easement.
111 N. Orange Ave, Suite 2000 • P.O. Box 2873 •Orlando, Florida 32802-2873
Orlando (407) 425-9566 Fax (407) 425-9596 • Kissimmee (321) 402-0144 • Cocoa (866) 425-9566 • Ft. Lauderdale (954) 670-1979
Website: www.oriandolaw.net • Email: firm@oriandolaw.net
October 9, 2008
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2. Would their organization be liable for damages based upon the actions
of its members?
ANSWER: It is axiomatic that the organization would be liable for the acts and
omissions of their directors, officers, and employees just like any other legal entity.
3. Could the City hold their members harmless, or even want to hold its
members harmless from any legal proceedings related to actions of
their members?
ANSWER: Yes, the City may hold the corporation and its members harmless from
liability by indemnification contract; however, it is not advisable to do so for many reasons.
First, the City could lose sovereign immunity protections. See American Home Assurance
Company v. National Railroad Passenger Corporation, 908 So.2d 459 (Fla. 2005) (The
sovereign immunity protections under Florida law do not protect a municipality from liability
on indemnification contracts with private parties.) Second, because the corporation will be
a separate legal entity, the City will have no control or supervision over the entity's acts or
omissions in the event the entity does something improper or illegal. Third, the acts or
omissions of the entity could hypothetically be adverse to the City's and public's interest
someday. In such cases, it would not be in the City's nor the public's interest for the City
to support such acts and omissions through an indemnification contract. The corporation,
if formed, should insure itself against potential liability by purchasing insurance.
Please contact me if you have any questions.
Ve ruI yours,
Anthony A. Garganese
City Attorney
AAG/jf