by SC Publisher Shannen Hayes & SC photos by Shannen Hayes
The Sandbar restaurant on West Gulf Drive has been battling one of its neighbors and the city for the past two years over the location of its dumpster. A code enforcement hearing was held Wednesday on a third order against C&N II, owner of The Sandbar, over the dumpster.
Hearing Examiner Anthony Gargano heard arguments from City Attorney John Agnew and the restaurant’s attorney Joseph Coleman in the nearly four-hour hearing. But Gargano ultimately did not make a decision Wednesday and a date for his ruling was not set.
Gargano was there to determine if the restaurant had failed to comply with a third code enforcement order issued by him in August 2019. It states, in part, the restaurant had five business days from the issuance of a permit from the city to relocate its dumpster to the approved location.
The examiner is also to determine the start date for the accrual of a fine for $250 per day of non-compliance with the third order. The city is asking for a start date of Sept. 13, 2019, five days after the city issued its permit, making the total fine more than $165,000.
The restaurant has been fighting the city over the location of its dumpster and C&N II Managing Partner Brian Silveira said it started when Sandbar’s neighbor, Nutmeg Condominiums, had redone its landscaping after Hurricane Irma in September 2017.
The restaurant’s dumpster had been located at the back of the building until the new landscaping at the condos. Silveira described “giant boulders” set along the property line that block trash removal trucks access to the dumpster and the trash company refused to service it there.
But when Silveira moved the dumpster to where it currently sits, Nutmeg residents complained about smelling its odor. Silveira testified Wednesday there had been zero complaints in the five years the dumpster had been in the previous location behind the building. And a single violation was issued for an open lid.
Coleman, the restaurant’s attorney, argued the location behind the building was really the best option and should be the location permitted by the city. He also said Nutmeg should have to remove the landscaping rocks that are preventing access to the dumpster behind the building.
“Nutmeg should remove the encroachment, the dumpster goes back (behind the building) and is permitted in that location and everyone goes on,” said Coleman.
But Gargano said it wasn’t within his power to order Nutmeg to remove the boulders. “I don’t have the power to tell a non-party what to do,” he said.
Agnew called the landscaping argument a “red herring” and the city’s choice in location for the dumpster was the “only realistic option.” He focused on the reasons for the hearing – was the restaurant in compliance with the third order and to set a start date for the daily fine.
And Agnew made the city’s position clear: Sandbar has not complied with the order by not relocating the dumpster to the permitted location and the daily fine accrual start date should be Sept. 13, 2019.
“(The restaurant) had a choice,” said Agnew. “The dumpster could have been moved to its permitted location and they continue to fight without incurring fines, but elected not do that.”
There were several other arguments made by the restaurant’s attorney, including the loss of up to five parking spaces at the location permitted by the city. Coleman said that was not inline with the Sanibel Code and there was no language in the third order about deviations from the code.
Agnew rebutted that the city can issue deviations in permits as per the Sanibel Code (Section 126-854) mentioned in the order.
Prior to the hearing on Wednesday, two other code enforcement orders had been issued in 2019 with the second ending in failed mediation and an appeal filed by the restaurant in February 2021 in Circuit Court was denied. But Silveira seems determined to fight for the location of his dumpster.