Clean Up City of St. Augustine, Florida: ARTIST FIRST AMENDMENT LAWSUIT MEDIATION: HOPEFUL SIGNS

Mediator Terrence Edward Schmidt

A July 3, 2017 jury trial is set in the case of Bruce Kevin Bates, et al. v. City of St. Augustine (Bates II).

But for 3.5 hours on Friday, September 23, 2016, federal court appointed mediator Terrence Edward Schmidt met with the City Manager of St. Augustine, four artist plaintiffs who have won yet another injunction against the City for violating their First and Fourteenth Amendment in their second lawsuit against the City of St. Augustine since 2009.

Mediator Terry Schmidt will schedule a second mediation session after the City of St. Augustine City Commissioners hold yet another shade meeting to discuss legal issues outside the Sunshine -- a full court reporter transcript will be available after the litigation is resolved.

Mediator Schmidt spent 3.5 hours with Bruce Kevin Bates, Elena Hecht, Kate Merrick and Helena Salas, the four visual artist plaintiffs, St. Augustine City Manager John Patrick Regan, P.E., plaintiff attorneys William Sheppard, Bryan DiMaggio and Thomas Elijan Cushman and Assistant City Attorney Denise May, accompanied by two insurance defense lawyers from the MARKS GRAY law firm, hired by the Florida League Cities insurance scheme.

Mr. Schmidt was a naval officer in charge of nuclear and other weapons, on the USS William M. Wood (DD 71 5), was Duke University Law Review Editor, co-wrote a 1974 scholarly Florida Law Review article with Duke classmate Kenneth W. Starr, worked for the Florida Bar in its successful effort to disbar F. Lee Bailey a/k/a "Flea" Bailey, and has since 2001 worked exclusively as a respected mediator, arbitrator and special master.

Mr. Schmidt was Lieutenant and Weapons Officer on the USS William M. Wood (DD 715)

In 1974, Mr. Schmidt published a scholarly article in the University of Florida's Law Review, co-authored with his fellow Duke University Law School classmate Kenneth W. Starr, later a United States Court of Appeals Judge, Solicitor General of the United States and Whitewater Prosecutor

Mr. Schmidt was one of three lawyers representing The Florida Bar in its successful effort to disbar F. LEE BAILEY

Mr. Schmidt's law firm biography states:

Mr. Schmidt received his B.A. degree from Wittenberg University in Springfield, Ohio in 1967 and his law degree from Duke University Law School in 1973 where was an editor of the Duke Law Journal. He was an officer in the United States Navy from 1969 to 1972, serving as Lieutenant and Weapons Officer on the USS William M. Wood (DD 715) at the time of his discharge to return to law school. He joined the firm of Mahoney, Hadlow, Chambers & Adams (then the oldest firm in the State of Florida) in Jacksonville in 1973 and became a shareholder in that firm in 1978. On January 1, 1979, he left the Mahoney Hadlow firm to start the firm of Bledsoe, Gallagher, Mikals & Schmidt, the predecessor of the Firm. He has practiced continuously with the Firm since that date specializing in civil litigation. In 1997, he became a Florida Supreme Court certified circuit court civil mediator and a Federal court certified mediator. In 1999, he qualified as an AAA arbitrator and mediator. Since 2001, his practice has been limited to providing alternative dispute resolution services as a mediator, statutory and AAA arbitrator, and special master.

EXPERIENCE: I have specialized in litigation since 1974. My practice included litigation in the areas of breach of contract, fraud, employment discrimination, mechanics liens and construction defects, real property, probate, state and federal antitrust and restraint of trade, securities fraud, maritime, bankruptcy, ERISA, CERCLA, RCRA, trademark and copyright, medical and legal malpractice, and personal injury, representing both plaintiffs and defendants. E.g., Jaffe v. Grant, 793 F.2d 1182 (11th Cir. 1986); Woodman v. U. S., 764 F.Supp 1455(M.D.Fla) rev=d 121 F.3d 1430(11th Cir. 1997); VKK Corp. v. National Football League. et al., 55 F.Supp 2d 196 (S.D.N.Y. 1999); Connecticut General Life Insurance Co. v. Jones, 764 So.2d 677 (Fla. lst DCA 2000). I also served as special counsel to The Florida Bar in the F. Lee Bailey disbarment proceeding. The Florida Bar v. F. Lee Bailey, 803 So.2d 603 (Fla.) ce/f. den/ed 122 S.Ct. 1916 (2002).

REPRESENTATIVE CASES HANDLED AS MEDIATOR: I have mediated more than 4.000 cases in state and federal courts and for the American Arbitration Association over the past 19 years, including, among others, a breach of contract claim in the telecommunications industry involving a claim of more than $400 millions a commercial breach of contract and breach of warranty case involving claims of over $30 million; a first party bad faith insurance claim for over $25 million; a consolidated action involving multiple securities fraud and negligent supervision claims in excess of $20 millions a dispute between FDIC and a borrower and a subsequent dispute between the borrower and a third party involving real property valued in excess of $20 million; a dissenting stockholder’s rights dispute involving claims in excess of $15 million; a catastrophic burn case involving claims in excess of $10 million; a dispute between a sponsor and a cigarette manufacturer over a NASCAR promotion involving a claim in excess of $5 million; numerous condominium construction disputes involving claims in excess of $5 million; and numerous personal injury, employment discrimination, construction, and other commercial cases involving claims in excess of $l,000,000.

REPRESENTATIVE CASES HANDLED AS ARBITRATOR/SPECIAL MASTER: I have been a panel arbitrator in arbitrations involving breach of contract, construction disputes, a cable service agreement, and termination of an insurance agency in which awards were entered. I have also been the sole arbitrator in breach of contract, consumer fraud, employment, construction and Unfair Trade & Deceptive Trade Practices Act disputes in which awards were entered. Finally, I have served as special master and as statutory arbitrator appointed by the circuit court in commercial disputes .

MULTI-PARTY DISPUTE RESOLUTION EXPERIENCE: As an attorney representing a party to multi-party cases, I have been involved in numerous multi-party mediations or settlement conferences, including litigation involving antitrust and tort claims filed by a former National Football League team owner against the National Football League and others in which the claimed damages exceeded $450 million; an insurance insolvency case in which the claims exceeded $20 million; an ERISA class action against the trustees of profit sharing plan involving a claimed loss exceeding $10 millions a toxic tort case in which 43 families sued a major waste hauling company and the United States Government for personal injuries arising out of a contaminated landfill which was settled by one defendant for $8.5 million and was tried against the other defendants and construction litigation by a condominium association against the developer, architect, and contractor for damages exceeding $3.0 million. As a mediator, I have been involved in over 500 multi-party disputes involving all kinds of claims, including major construction cases.

ALTERNATIVE DISPUTE RESOLUTION TRAINING: National Academy of Distinguished Neutrals (NADN) 8/2012 Advanced Mediation Training Retreats ADR Section of Dispute Resolution (JBA), Fifth Annual CME Seminar (2012, 2013, 2014, 2015); NADN Advanced Mediation Training Retreat 2011; Fourth Annual Institute on Advanced Mediation-Advocacy Skills Training: 2005; DRC 1 3th Annual conference for Mediators and Arbitrators: Framing Our Future, 2004; AAA Advanced Mediator Skills for Court-Based Settlement Program, 2003; ABA Section of Dispute Resolution: New Vistas in Dispute Resolution, 2002; ABA Section of Dispute Resolution Collaboration in the Capital: The Power of ADR Program, 2001; AAA Commercial Arbitrator ll – Advanced Case Management Issues Workshop, 2001; Florida Bar sponsored Private Judges, Mediation and Arbitration Seminar, 2000; AAA Commercial Arbitrator Training Workshop, 1999; Florida Bar CLE Course on Alternate Dispute Resolution, 1998; Florida Dispute Resolution Center, 40-Hr. Mediation training, 1995.

PROFESSIONAL LICENSES: Admitted to the Bar: Florida, 1973; Admitted to United States Supreme Court, Ninth and Eleventh Circuit Courts of Appeal, and United States District Court for the Middle District of Florida.

PROFESSIONAL ASSOCIATIONS: American Bar Association (Section on Dispute Resolution); Florida Bar Association (Section on Dispute Resolution); Jacksonville Bar Associations Florida Academy of Professional Mediators; National Academy of Distinguished Neutrals; Chester Bedell Inn of Courts The College of Master Advocates and Barristers.

AWARDS AND HONORS: Master, Chester Bedell Inn of Courts Senior Counsel, The College of Master Advocates and Barristers; listed in The Best Lawyers in America (2001 — present); listed in Florida’s Super Lawyers (2006 – present); listed in “Jacksonville’s Best Lawyers” by Jacksonville Magazine( 2001 – present); honored in 2002 with a Resolution by The Florida Bar for pro
bono service as Special Counsel to TFB in the F. Lee Bailey disbarment proceeding.

PUBLICATIONS AND SPEAKING ENGAGEMENTS: Speaker, Eighth Annual N.E. Florida CME Seminar for Mediators, “ls There Anyone Who is Not Subject to Cognitive Dissonance… Except Me?” (2015); Speaker, 2nd Annual N.E. Florida CME Seminar for Mediators “Local Issues Facing Mediators and the Ethical Implications” (2009); Panel Member on alternative dispute presentations to the Chester Bedell Inn of Court (2004) and Florida Coastal School of Law (2005); Panel member, Winning Without Trial: The Mediation Roundtables Raymond Ehrlich Trial Advocacy Seminar (2003); Speaker, “The Florida Bar v. F. Lee Bailey: A Cautionary Tale”, Raymond Ehrlich Trial Advocacy Seminar (2002); co-author with Kenneth W. Starr: Inspection Rights of Corporate Stockholders: Toward a More Effective Statutory Model”, 42 Florida Law Review 173 (1974).

ATTORNEYS
James A. Bledsoe, Jr.
Samuel S. Jacobson
Terrance E. Schmidt
Kenneth B. Wright
Stephanie A. Sussman
OFFICE LOCATION
501 Riverside Ave., Suite 903
Jacksonville, Florida 32202
Tel: (904)398-1818
Fax:(904)398-7073

jab@bledsoejacobson.com

As I wrote on February 23, 2016 on United States District Judge Brian J. Davis' injunction:

Artists Win New First Amendment Victory in Bates v. City of St. Augustine (Bates II)

Bruce Kevin Bates, lead plaintiff in 2009 and 2016 victories in First Amendment cases by artists against City of St. Augustine

Artists win again! Artists won another federal court victory against First Amendment violations criminalizing plain air art in St. Augustine. ]

United States District Court Judge Brian J. Davis of the Middle District of Florida ruled for artists today and against City ordinances criminalizing First Amendment protected activity on pain of 60 days in jail and $500 fines.

Our City's namesake, Saint Augustine, wisely wrote: "an unjust law is no law at all."

Several anti-artist City ordinances were found unconstitutional today.

In a 77 page order, United States District Court Judge Brian J. Davis ruled February 24, 2016 for the four visual artists suing the City of St. Augustine over criminalizing art in our historic downtown.

Mayor Nancy Shaver asked fellow Commissioners to join her in a workshop to rework the ordinance. They refused. The suit was filed. The City has lost on the Order Granting Preliminary Injunction on its First Amendment violations, finding irreparable harm, a high probability of prevailing on the merits.

The Order Granting Preliminary Injunction Findings of unconstitutional laws include:

1. Peddler's Ordinance allowing City to reject applicants summarily, based upon supposed lack of "good moral character," a standardless delegation run riot. Since there is no "severability" clause, the entire ordinance is unconstitutional.

2. Mobile Vendor Ordinance curfew on sales after 6 PM.

3. Fees for Mobile Vendor licenses.

4. Bonds for Mobile Vendor licenses.

5. Liability insurance for Mobile Vendor licenses.

The Court noted several times that neither party presented enough data about tourist visits and flow in the City to rule on other counts. These include the location for public art and the equal protection claim. A trial is now required.

The City's noisome anti-artist ordinances were pushed by commercial landlords (including the Whetstone family), ex-Mayors JOSEPH LESTER BOLES, JR. a/k/a "JOE BOLES" and CLAUDE LEONARD WEEKS, JR. a/k/a "LEN WEEKS" and former City Manager WILLIAM BARRY HARRISS, a/k/a "WILL HARASS." They were long opposed by artists, including Roger Jolley and the late Gregory Travous, both of whom were arrested by SAPD.

Plaintiffs Bruce Kevin Bates, Elena Hecht, Kate Merrick and Helena Salas are the prevailing parties under 42 U.S.C. 1983 and are entitled to seek attorney fees under 42 U.S.C. 1988.

William Sheppard, Bryan DeMaggio, Thomas Elijah Cushman, et al. were the attorneys.

They have won a Order Granting Preliminary Injunction, with a jury trial, damages and city-paid attorney fees to follow.

Three cheers for the artists, their lawyers and the federal court system. We, the People, won another public interest victory today.

City Attorney ISABELLE CHRISTINE LOPEZ neither returned a telephone message nor shared the order timely with Mayor Nancy Shaver, Vice Mayor Roxanne Horvath, or the other City Commissioners. At the preliminary injunction oral argument on August 21, 2015, the estimable Ms. LOPEZ wanted to sit in the spectator seats until invited to sit at the table by fungible Florida League of Cities insurance defense counsel from MARKS GRAY.

Judge Davis's February 23, 2016 Order Granting Preliminary Injunction is subject to modification after an epic jury trial and on appeal to the liberal United States Court of Appeals for the Eleventh Circuit in Atlanta.

Proponents and perpetrators of the artist-is-a-crime ordinance may be questioned before a jury. They include: