La Ola Asks Court To Reject Town’s Request

On Monday La Ola attorney Amy Thibaut responded to a court filing from the Town of Fort Myers Beach requesting that Circuit Court Judge Keith Kyle expedite the case, dispense with oral arguments, and rule on the eviction of La Ola from Times Square immediately. 

In the filing Thibaut wrote that the town’s request fails to demonstrate that oral arguments would serve no useful purpose. “Oral argument would enhance the court’s understanding of the case prior to ruling. Therefore, the case is ripe for oral argument and the town’s motion should be denied.”  Thibaut also said “dispensing with oral argument would prejudice” La Ola. 

The reason the town wants Judge Kyle to rule on the case quickly is because FEMA representatives will be driving over the Matanzas Pass Bridge today to inspect the town’s progress on a number of issues that led to the town being put on probation and losing a 25% discount in the National Flood Insurance Program. 

Mayor Dan Allers has said the town has done everything FEMA has asked and he expects the town will come off probation on November 1st. He has also said that La Ola’s shipping containers in Times Square is one of the reasons FEMA came down hard on the town. There were other reasons as well, including a long list of properties on the beach that FEMA alleged had work done without proper permits, and storage boxes throughout the island that could become projectiles in a hurricane. 

For many months the town has been working to come back into compliance by working with FEMA to try to get off probation and return the discount to residents. The town also paid an outside Administrative Judge to rule on code enforcement cases that fell under the FEMA issue. 

Thibaut’s filing takes the town to task for waiting until July 7th to file the request rather than as soon as FEMA notified the town they would be visiting in a letter back on April 28th. 

The town filing last week says La Ola “continues to maintain the shipping containers in the Special Flood Hazard Area, causing the town to remain out of compliance with FEMA requirements. And, La Ola’s ongoing noncompliance with the order on appeal, FEMA directives and regulations, and the town’s floodplain regulations, is causing continuing harm to the town, which is obligated to enforce its floodplain regulations and cause the removal of appellants’ shipping containers before the town can be removed from probation under the National Flood Insurance Program, as well as the town’s property owners, who are required to pay more in flood insurance premiums while the Town is on NFIP probation.”

Thibaut tells the judge that the town is putting too much of the blame on La Ola for losing its 25% discount and being put on probation. “The Town’s NFIP probation is simply a consequence of its failures to adequately enforce its floodplain management regulations. FEMA’s specified reasons cite a variety of issues, one of which being a plethora of noncompliant structures.”

She goes on to write that “The Town is not required to fully remedy all alleged issues that FEMA has cited to reinstate its NFIP eligibility; rather, the standard is that the Town has taken action to correct and remedy issues cited by FEMA to the maximum extent possible.”

When FEMA came after the town the organization cited 105 properties for alleged noncompliance (some of those properties were not even on Fort Myers Beach). Thibaut writes that it’s not unforeseeable that one or more of those citations would be found to be incorrect upon adjudication of each case through the code enforcement process. “The process exists to provide due process in the prosecution of code enforcement cases because the law acknowledges that not all citations are actual violations of the code. Indeed, code enforcement cases often present at least moderately complex issues of fact and law. However, FEMA does not have jurisdiction to decide code enforcement cases. The Town’s Special Magistrate has authority to decide code enforcement cases. This case went through the town’s code enforcement process, was heard by the Special Magistrate, and is now in appeal, which is allowed by right. This case is pending decision on appeal and therefore the town has attempted to “remedy” the alleged violation to the maximum extent possible. Any dispute over FEMA’s application is outside the scope of the case.”

FEMA has told the town that all structures that could not be hauled away from the velocity zone quickly with a light duty pickup truck must be removed. La Ola’s containers are on wheels in Times Square but do need a bigger truck to pull them. La Ola owner Thomas Houghton has demonstrated he can dismantle his operation and remove the structures in a few hours before a storm. He videotaped it being done shortly before Hurricane Milton in 2024.

Earlier this year, the Administrative Judge previously ruled in the town’s favor and gave Houghton until March 1st to leave Times Square or come into  compliance (use a structure that could be removed using a light duty truck). Houghton and property owner Chris Primeau appealed that ruling to the Circuit Court, hired Thibaut to help fight it, and a back-and-forth of filings has gotten us to this point in time. Despite Hougton being able to dismantle his operation and truck it off the island on a few hours notice, the town says FEMA claims that’s still not good enough. 

If Judge Kyle rules in favor of the town, Houghton and Primeau face the possibility of having to pay $250 per day fines dating back to March 1st (which they can also appeal). That fine is now up to about $34,000 and climbing. It’s still unclear if a La Ola win at the Circuit Court level might mean to FEMA if anything.

La Ola recently celebrated 15 years in Times Square on Fort Myers Beach. Houghton does plan to rebuild on the site. He released drawings of a new restaurant back in May and is now going through the early steps to start the rebuild. He’d like to be able to stay setup on the property for as long as possible before the rebuild starts and said on Beach Talk Radio it could be 3 years before he reopens.
Read the entire La Ola filing from Monday HERE.

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