by Mike Sharkey
Staff Writer
City Council member Jay Jabour is one step closer to learning his status as a Council member, but it will likely be about 60 days before his course of action — or no action — is decided.
Last fall, Bob Harms, who lost to Jabour in his bid for the Council At-Large Group 2 seat, filed suit in Circuit Court. The suit claimed Jabour filed false residency records with the Supervisor of Elections Office during qualifying for the May election. Jabour said he lived in a condominium in Jacksonville Beach while Harms’ suit contended Jabour actually lived in a house in San Jose. Jabour owns both properties.
Oct. 17, Circuit Court Judge Bernard Nachman ended a two-day, non-jury trial when he ruled in favor of Harms. Jabour immediately appealed to the First District Court of Appeals in Tallahassee.
Wednesday, Jabour’s attorney Steve Busey went before First DCA in an effort to have Nachman’s decision overturned. Harms was represented by attorney Neil Henrichsen and both sides were allotted 15 minutes to make their case.
“I felt very good about how it went,” said Jabour, who listened to the hearing on the Internet from Jacksonville. “I think Steve explained my case thoroughly through case law to the District Court of Appeals. I felt good about it.”
Busey led off the hearing and relied primarily on case law and cited several instances in which a candidate for office held multiple residences. Busey argued that since Jabour changed his homestead exemption to the Jacksonville Beach residence as well as the addresses on his driver’s license and vehicle registration, legally he’s a resident of Jacksonville Beach — thus making him eligible to run for the At-Large Group 2 seat.
“In 2004 he moved his principal residence from San Jose to the beach,” said Busey, explaining Jabour did so with the intention of spending a majority of his time at the beach and because, at the time, his condominium was appreciating faster than the San Jose home. “The intent is evident and there were overt acts. That is the law.”
Busey disagreed with Nachman’s ruling and also cited a Florida Supreme Court ruling on a similar case in which the courts ruled in favor of the elected party. In that case, according to Busey, the Supreme Court based its decision partly on the fact that residence aside, the voters had spoken through their actions.
“The Supreme Court has said when there is doubt of the qualifications of a candidate, it must be resolved in favor of the candidate,” said Busey. “For that reason, the court shouldn’t be in a position to disenfranchise the community. Sixty-two percent of the voters elected Mr. Jabour. If you do not reverse the decision of the trial court, you are disenfranchising 62 percent of the voters in Duval County.”
Henrichsen relied primarily on Nachman’s ruling, the City of Jacksonville ordinance code and the rules governing the qualifications of candidates and some case law.
“The facts are not in dispute,” said Henrichsen, adding that Jabour ran unsuccessfully for Council in 2003 as a San Jose resident. Henrichsen also argued that where Jabour claims his homestead exemption and the addresses on his license and vehicle registration are, to an extent, irrelevant because they don’t necessarily reflect one’s day-to-day actions. “He did not change his living patterns between that election and the election in 2007. He changed his homestead exemption only to save money on his property taxes. This trial judge (Nachman) found specifically no present intention to reside in the district.”
According to a City law, a candidate must sleep in a residence in the district they are seeking office for 183 consecutive days prior to qualifying. Henrichsen said that time frame consisted of Aug. 1, 2006 until Jan. 30, 2007. He said Jabour did not spend 183 consecutive days in Jacksonville Beach.
“This candidate who ran had no qualifications to run,” said Henrichsen.
If he loses his appeal, Jabour said he will appeal to the Florida Supreme Court in an effort to keep his seat on Council.