In one of the more trenchant arguments in his conclusion, Bright wrote that “defendants and their supporters erning documents. But what was not as clear from the hearing [see September edition of the Progress for detailed reporting] was the conclusion Bright would draw from that argument and much of the testimony in court from defendants Colette Horn, Frank Daly, Amy Peck, Josette Wheatley and Larry Perrone.
Colette Horn
Janasek lawyer argues OPA governing docs don’t permit
Board members; Perrone retired from the Board last month, not seeking reelection, while Peck and Wheatley, both appointed directors, were defeated in their election bids thisInsummer.asignificant portion of his closing argument, Bright singles out the five defendants for explicit criticism, contending that they acted in “bad faith” in imposing a 90-day suspension about three weeks after a much publicized incident at the Yacht Club outside deck near the tiki bar, when Janasek engaged in a verbal altercation with Wheatley. [See Page 2 for details.] He also accused the Board majority when it voted to suspend Janasek of acting “as a sort of “Big Brother behavior police.”
Complete Text
Closing
He cited language in the OPA charter that limits amenity suspensions to non-payment of OPA charges and for continuing violation of OPA restrictive covenants, and additional language that expressly precludes the Board of Directors from adding additional restrictions on the right of amenity access. He cited similar language in other govBruce Bright
SeptemberTHE2022OCEAN PINES JOURNAL OF NEWS & COMMENTARY www.issuu.com/oceanpinesprogress 443-359-7527 Enjoy more sunrises. OCEAN PROGRESSPINES To Page 3 COVER STORY Bruce Bright Pages 36, 38 Pages 39-41 Pages 40-41 Pages 42-55 Bruce Bright submits closing argument in Janasek case Visit www.issuu.com/oceanpinesprogress for a Special Report and transcript of the filing
~ Page 8 ChristmasOceanpatientPage40
Begins on Page 4
By TOM STAUSS Publisher
The OPA was represented by Megan Mantzavinos, hired by the OPA’s insurance company to represent the OPA and ve current or former OPA directors who voted for the Janasek suspension. Circuit Court Judge Beau Oglesby presided over the hearing in Worcester County Circuit Court.
Aday-long court hearing in Snow Hill Aug. 25 featured competing theories on whether Ocean Pines Association governing documents permitted the attempt by the Board of Directors to suspend former OPA director Tom Janasek’s access to Ocean Pines food and beverage venues after a much publicized verbal altercation with former Director Josette Wheatley this past May. The court hearing included a three-plus-hour interrogation of former OPA President Colette Horn by Janasek attorney Bruce Bright, and shorter interrogations of Wheatley, former director Larry Perrone and current director Frank Daly.
The proceeding was punctuated by the rst ever recorded use of the f-word and the c-word in public by an OPA of cer, Horn, who on Aug. 25 was spending her last day as the OPA’s president. Horn used the words on two separate occasions while testifying. She said she was quoting Janasek, who she contended used the profanity
SPECIAL REPORT Sept. 7, 2022 www.issuu.com/oceanpinesprogress • 443-359-7527
Bruce Bright confronts OPA directors Horn, Daly and former director Larry Perrone in Aug. 25 court hearing
Attorney files closing arguments in Janasek suspension case
Bruce Bright argues that OPA Board majority acted as a sort ‘Big Brother behavior police’ when imposing a 90-day ban on former director
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Horn and Daly are current of Bruce Bright’s Arguments
Colette Horn Frank Daly Amy Peck Josette Wheatley Larry Perrone
Janasek amenity suspension
By TOM STAUSS Publisher The attorney for former Ocean Pines Association Director Tom Janasek in closing arguments asserted that when a Board majority this past June imposed a 90-day suspension on Janasek’s access to certain OPA amenities, it had no basis in doing so, and indeed directly contravened OPA governing documents, including the charter, restrictive covenants and by-laws. The suspension was overturned by a temporary restraining order that remains in effect. The closing was hardly surprising, as the Aug. 25 hearing in Worcester County Circuit Court clearly signaled that Bright would be making such an argument.
2 Ocean Pines Progress Special Report • Sept. 7, 2022
From Page One may contend that, no matter what the legalities are or what the governing documents say, on May 20th at the Yacht Club, Plaintiff yelled at Ms. Wheatley, possibly us ing inappropriate profanities and/or calling her names, and possibly causing her to be fearful of Plaintiff (in that moment or more generally); and that, on that basis alone, the Board could rightly punish and ‘make an example’of Plaintiff, and seek to deter similar conduct by others, by selectively imposing the unprecedented and unauthorized ‘ban’ upon him.
By TOM STAUSS Publisher Tom Janasek attorney Bruce Bright’s closing argu ments in the amenity suspension case filed against the Ocean Pines Association and five current or for mer directors contends that the defendants acted in “bad faith” in the way they handled Janasek’s 90-day suspen sionBrightdecision.made his case for “bad faith” in anticipation that the OPA’s attorney in the case would attempt to in voke the business judgment rule that generally insulates directors of HOAs from legal liaibility for actions taken in their duties as directors. Bright said the rule won’t apply in Janasek vs. OPA be cause the 90-day suspension of Janasek was “fraudulent or arbitary,” removing the presumptive insulation.
• None of the majority directors “cited any provision in the governing documents” that supported or authorized the•suspensionHorninher public statement and letter to Janasek cited no governing document in support of the ban.
Among the actions cited by Bright to show arbitary or bad faith actions:
• There have never been bans on members for getting into arguments or even for committing serious crimes.
• The majority directors did not explain why they acted as they did despite “express provisions in the governing documents.”•Noneof the defendants testified they had followed legal advice of counsel in actions taken, which Bright said was “inferable” that they acted contrary to legal advice.
• The ban was intended to promote public safety and a “family friendly” culture in Ocean Pines, and yet Janasek was suspended from only three amenities, the ones that serve alchohol. Banning him from the purchase of alco hol was not considered, and banning him for only 90 days suggests there was no broad and general “public safety” threat by Janasek’s presence in OPA facilities.
Bright said that “aside from the legalities which weigh completely in Plaintiff’s favor here, the public interest of Ocean Pines mandates that this Board majority should not be allowed to establish this sort of dangerous dictato rial paradigm for the Subdivision’s future.”
the OPA Board as a sort of ‘Big Brother behavioral police’ regulating members’ conduct and meting out punishment against them, to the cheers of some segment of the elec torate, under the vague and subjectively/arbitrarily de fined auspices of ‘community welfare.’ ”
• The Board has never imposed suspensions on OPA members other than for non-payment of assessments.
He asked the Court to rule in favor of preliminary injuctive relief from the amenities ban, which had been stayed in the form of the temporary restraining order that allowed Janasek to continue to visit the Yacht Club, the Beach Club and the Golf Clubhouse.
Bright accuses defendants of ‘bad faith’ Says actions continue with the precedent set in Rick Farr candidate eligibility case.
• In a complaint filed against former director Larry Perrone for inappropriate yelling in an encounter with former Department head Colby Phillips, no action against Perrone was taken.
“After all, they might contend, the May 20th incident was not Mr. Janasek’s ‘finest hour’ and ‘he brought this upon himself.’ ” Bright said that “setting aside the profound legal in validity of this line of thought/argument, it takes Ocean Pines down a fundamentally perilous path.” He contended that “to permit the Board majority (and consequently any Board majority, at any time) to sum marily impose a ‘ban’ of this kind, as it sees fit and on terms it alone deems appropriate, against any OPA mem ber it selectively and unilaterally regards as having be haved in an unacceptable way, is tantamount to anointing
• The special meeting in June called to suspend Janasek’s access to certain amenities only happened once the majority directors discovered that it was Janasek who was involved in the verban altercation with Josette Wheatley.•Colette Horn “admitted” during the special meeting that suspension was “outside the scope of relief in the gov erning documents.”
Closing argument
Bright then concluded that “there is no legal or factul basis for the purported “ban,” it violated Plaintiff’s con tractual/easement rights, and it was an ultra vires [unau thorized] act by the Board majority, imposed arbitrarily and in bad faith; but at minimum, at this juncture and based on the record before the Court, the criteria for pre liminary injunctive relief – all of them – weigh heavily in favor of Plaintiff.”
Bright also asked the Court to mandate that the OPA pay Janasek’s legal fees in the case.
By TOM STAUSS Publisher Bruce Bright’s closing memorandum in the Janasek vs. OPA amenity suspension case tar geted arguments that he expects the OPA attor ney’s will make in her closing arguments in the case.
• Section 5.13(g) of the OPA by-laws that refer to general powers to take action to “do any lawful thing ... with regard to health, safety and education, culture, recreation and convenience” of the OPA membership does not override or take precedence over specific lan guage restricting Board power to impose amenity sus pensions.•Thesame is true for Charter Article Second, Sec tion 13, that gives the OPA “the power ... to accomplish the foregoing purposes and powers” found in the char ter.Bright argues that the defendants didn’t cite either provision when they voted for the Janasek suspension, hence his contention that they are after-the-fact ratio nalizations.
He also said that Section 5.13 uses similar language found in the charter that restricts suspensions to fail ure to pay assessments and continuing violations of the restrictive covenants.
• There are numerous “well established rules of con tract interpretation” that undermine the defendants’ positions. He said general statements about the “inter ests of safety and culture” would render specific limits on Board power “meaningless,” and Courts “won’t up hold this kind of interpretation.”
Among his points:
Ocean Pines Progress Special Report • Sept. 7, 2022 3
• OPA attorney Jeremy Tucker was not called as an OPA witness like he had been in the Rick Farr candidate eligibility case.
• Having been criticized by the Court less than a year ago in the Farr case, “failing to afford any procedural fair ness to Farr in connection with wrongly disqualying his candidacy,” the majority directors “afforded zero proce dural fairness to Janasek [prior to the suspension] - no preliminary warnings, no hearings or appeal rights, no adjudicatory process at all.”
• The Board majority, “when it became aware of the May 20 incident and Tom Janasek’s involvement, saw an opportunity, notwithstanding express governing doc uments provisions they knew stood in their way, to se lectively, arbitarily, and without precedent to target Mr. Janasek.” Bright said that the majority members “did it in a way they understood and intended would interfere directly and materially with his business activities.”
Attorney rebuts OPA arguments
• Had a new state law, H.B. 615, been “retroactively applied” to the Janasek suspension, “the Board majority action would have violated this law.” The law, which be comes “active” in October according to Bright, provides for “extensive procedural rights” to HOA members who are accused of violating HOA covenants or other rules and regulations.•Brightsaid that H.B. 615 was signed into law by Gov ernor Larry Hogan on May 12 and the Janasek ban was imposed on June 9, so the action in suspending Janasek “was in direct contravention of newly approved” state law and “expressed public policy of the state.”
• Contracts are interpreted by the Courts using a “reasonableness” standard, and it’s not reasonable to ignore “expressed and specific limitations” on Board power.Hesummed it up this way: “Any after-the-fact ratio nalizations would constitute judicial sanctioning of an utterly selective, arbitrary and targeted punishment of a potential adversary, in the historic context of where such action has ‘never before’ been taken by an OPA Board against an OPA member (except for non-pay ment of OPA charges).”
• Defendants “knowingly and intentionally” caused “economic harm” to Janasek’s business interests as he services beer lines at the Yacht Club as a private con tractor. Bright said that the Board majority could have accommodated those business interests by allowing him into the Yacht Club before or after the facility was open but elected for the complete ban.
• Horn issued what Bright called “a misleading” state ment at the June 9 special meeting regarding “50-yearold” governing documents, which Bright argued had been amended many times. Bright said Horn admitted that she had not consulted with “founders” who wrote the original documents 50-plus years ago. “She had no idea who the founders were, never spoke to any founders to determine their intent.” She had said during the June 9 meeting that the founders could not have anticipated the sort of inci dent that occurred at the Yacht Club, Bright noted.
• Horn in a July 15 meeting of the By-laws and Reso lutions Advisory Committee “quashed any discussion of adding an appeal process to Board Resolution M-02” that pertains to club managers and the OPA general manag er having the right to suspend an OPA member from the amenities. That action was designed “to protect her own position as a defendant” in the Janasek case, Bright said.
Calls them ‘after-the-fact’ rationalizations without legal basis
He calls the OPA’s rationale for suspending Janasek after-the-fact rationalizations.
• Any ambiguities in interpretation -- and in the Janasek case “there are none” -- must be rendered in favor of the plaintiff.
NOW COMES Plaintiff, THOMAS JANASEK (“Plaintiff” or “Janasek”), by and through his attorneys, Bruce F Bright and Ayres, Jenkins, Gordy & Almand, P.A., and hereby submits
I. THE PURPORTED “BAN” WAS AND IS IMPROPER, ARBITRARY, IN BAD FAITH, AND NOT AUTHORIZED UNDER THE GOVERNING DOCUMENTS, AS INTERPRETED PROPERLY AND IN THEIR ENTIRETY. A. Applicable Governing Document Provisions. The OPA governing documents, in explicit terms, limit the Board’s power to suspend a member’s use of amenities to two situations non payment of OPA charges and continuing violations of covenants (that are declared by the Board to exist):
the following written closing argument in support of his motion for preliminary injunction, as follows:
1. The OPA Charter (Plaintiff’s Exhibit 11) provides in Section 8 of the SIXTH Article that “[n]o [OPA] member . . . may be expelled from membership in the Association for any reason whatsoever; provided, however, that the board of directors of the Association will have the right to suspend . . . the right to use of the parks and other recreational facilities and amenities of the Association of any member: a. For any period of time during which any Association charge owed by any member remains unpaid; b. During the period of any continuing
PLAINTIFF’S CLOSING ARGUMENT ME MORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION
1 THOMAS JANASEK * IN THE CIRCUIT COURT Plaintiff * FOR WORCESTER COUNTY v. * STATE OF MARYLAND OCEAN PINES ASSOCIATION, INC., * CASE NO. C 23 CV 22 000142 et al. * Defendants * * * * * * * * * * * * *
2 violation of the restrictive covenants . . . after the existence of the violation shall have been declared by the Board of Directors of the Association.”
2. The OPA Charter states further, in section 9 of the SIXTH Article, that “[t]here shall be no other preferences, limitations, or restrictions with respect to the relative right s of the members. ”
3. Although the OPA Declarations (e.g., Plaintiff’s Exhibit 15) provide that “[t]he Association shall . . . be the means for the promulgation and enforcement of all regulations necessary to the governing of the use and enjoyment of [OPA properties]” (Section 12.C., page 11), there are no OPA rules or regulations authorizing or supporting the purported “ban.”
5. More generally, the Declaration establishes (in Section 11.A., at p. 10) as a recorded and contractual matter the right of all OPA members to freely and fully access and make use of all OPA streets, parks, facilities, and amenities. Indeed, this section of the Declaration makes clear that an express “easement ” is granted to all OPA members/owners in this regard, which easement rights are appurtenant to their OPA property ownership and OPA membership.6 In section 5.13(e) of the OPA Bylaws (Board Powers) (Plaintiff’s Exhibit 13), consistent with the OPA Charter and Declarations, the Board is authorized to suspend the right of
4. The Declaration for Section 4 of Ocean Pines (Plaintiff’s Exhibit 15), where Plaintiff resides, states in section 12.G. (at page 13), consistently with the OPA Charter, that a member’s right to use OPA amenities may be suspended only: 1) while the member’s Association charges remain due and unpaid; 2) during the period of a continuing violation of an OPA covenant, “after the existence of the violation shall have been declared by the Board”; and 3) during the period of any non payment of water and sewer charges
3 a member to use OPA amenities and facilities only based upon non-payment of OPA charges or continuing violations of OPA covenants (and only “after the existence of the violation has been declared by the Board) 7. Notably, the opening preamble of Section 5.13 of the Bylaws states explicitly: “Any power of the Board of Directors enumerated in this Section [5.13] s hall be exercised only in accordance with the limitations set forth herein ” On its face, this means that to the extent the Board suspends the (contractual/easement) right of a member to enter and use OPA amenities, it must do so in accordance with the limitations explicitly stated in section 5.13(e) (i.e., only based on non payment of OPA charges or a continuing and declared violation of covenants).8.
Board Resolution M 02 (Plaintiff’s Exhibit 14) states in pertinent part (section 12.e. f.) that “the manager of each [OPA] facility . . . has full and complete control of all activities under their supervision,” including “the authority to deny service, play, or use of facilities to any person w hen, in their judgment, the person being denied use of the facility is acting in violation of club rules and regulations, other governing documents of the Association or applicable state or county laws or regulations. ” Resolution M 02 states further that the OPA General Manager “has the authority to suspend the use of amenities by any person for infractions of the rules, regulations, or policies of the Association. ”
9. The Ocean Pines Charter, Article NINTH, at p. 7, states: “The directors of the Association shall exercise their powers and duties in good faith and with a view to the best interest to the Association.” Plaintiff’s Exhibit 11. The record is clear and undisputed in this case that: 1) at all relevant times, Plaintiff has been an OPA member in good standing, current on all OPA charges; 2) at no relevant time has
4 Plaintiff been in violation of any OPA covenant or rule; and 3) at no relevant time has the OPA Board declared Plaintiff to be in violation of any OPA covenant or rule.
In other words, the record is clear that there is no authority and has never been any authority under Board Resolution M-02, Section 5.13 of the Bylaws, the OPA Declaration, or the Charter for the Board to suspend Plaintiff’s contractual/easement right to use OPA amenities, based on what occurred on May 20, 2022, at the Yacht Club. It is also clear that it was the Board majority not the amenity manager (Matt Ortt Companies) or the OPA General Manager (John Viola) who took the unfounded action to ban Plaintiff; and that, in any event, neither Matt Ortt Companies nor the OPA General Manager had any basis to do so, since there was no declared (or even non declared) violation by Plaintiff of any OPA covenant or rule.
B. Governing Document Provisions Purportedly (and Improperly) Relied Upon by Defendants. To rationalize their “ban” after the fact as purportedly authorized under the OPA governing documents, Defendants claim reliance on Section 5.13(g) of the OPA Bylaws, which provides that the Board can do “any lawful thing and act that it deems to be for the benefit of Ocean Pines and the members and residents thereof or advisable, proper, or convenient for the promotion of the interests of said members and residents with regard to health, safety, education, culture, recreation, comfort, and convenience.” Defendants have also after the fact claimed reliance on Article SECOND, Section 13 of the Charter, which provides that the Association (as distinguished from the Board) “shall have the power to do any lawful things and acts . . . necessary and proper to accomplish the foregoing purposes and powers [of the Association].”1 1 The foregoing powers are to: 1) promote community welfare; 2) enforce covenants; 3) own, manage, and repair all OPA streets, facilities, and amenities; 4) pay taxes; 5) collect OPA charges; 6) provide police and fire protect ion; 7) establish and enforce rules; 8) lien properties for non payment of charges; 9) acquire and transfer property; 10) manage and spend Association funds; 11) borrow money and encumber OPA property; and 12) appoint an agent to collect OPA charges and to lien properties in connection with collection of association properties.
C. Defendants’ After-the-Fact Rationalization of its Ban is without Legal or Factual Support.
Contrary to Defendants’ contrived position, the sections of the Bylaws and Charter on which they rely do not provide them with any legitimate cover, for a number of important and controlling reasons.
First, Defendants conspicuously made no reference to those provisions in connection with taking the action they took they did not do so during or before the June 9, 2022 special meeting (see Plaintiff’s Exhibit 9), including in the motion itself imposing the “ban”; they did not do so in announcing publicly their action after the June 9, 2022 special meeting (Plaintiff’s Exhibit 16); and they did not do so in their June 10 written notice of their “ban” to Mr. Janasek (Plaintiff’s Exhibit 17). Their reliance on those provisions now, some months later and through a lawyer formulated position (however invalid), is a disingenuous attempt to justify the “ban,” after the fact. This is demonstrated most clearly by Defendant Horn’s statements made during the June 9 meeting and in her written statement published afterward to the effect that: 1) “our governing documents fall short of this situation”; 2) “the governing documents don’t give us any kind of immediate relief” here; and 3) the Board will be working on governing document revisions to empower the Board (in the future) to impose this type of “ban.” Plaintiff’s Exhibit 9, at pp. 19 20.
Second, as stated above, the opening preamble to Bylaw section 5.13 makes clear that “[a]ny power of the Board of Directors enumerated in this Section shall be exercised only in accordance with the limitations set forth herein”; and the power to suspend a member’s right to use amenities, as enumerated in section 5.13(e), is explicitly limited to two circumstances: non payment of charges, and continuing and explicitly declared violations of covenants or rules. Such clear and express limitation in the Bylaws is consistent with the same (explicit) language in the
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Third, there are numerous well established rules of contract interpretation that apply in this instance to undermine completely Defendants’ position in this regard:
A. Courts will not read express contractual provisions in a way that renders them as meaningless. Cochran v. Norkunas, 398 Md. 1, 17 (2007). The Declaration, Charter, and Bylaws all provide expressly and specifically that a member’s right to use amenities may only be suspended for non payment of charges and a continuing, declared violation of covenants or rules. Such language would be rendered meaningless if, as Defendants contend, based on the general “interests of safety and culture” language in the documents, a member’s right to use amenities may be suspended arbitrarily and selectively for any other (unstated) reason that the Board sees as valid.
B. Ambiguities are to be interpreted against the drafter of contract provisions. Impac Mortgage Holdings Inc v. Timm, 474 Md. 495, 509 (2021). To the extent that the Court were to accept that there is an ambiguity in relation to the clear and explicit provisions relied upon by Plaintiff versus the vague and general ones relied upon by Defendants (Plaintiff does not believe there is any legitimate ambiguity), any such ambiguity must be resolved in favor of Plaintiff (who did not draft the subject documents), and against “the drafters” (who are the OPA, the individual Defendants, and their Board predecessors).
Declaration and the OPA Charter. Defendant’s (after the fact) attempt to cabin their “ban” implicitly within section 5.13(g) of the Bylaws (and/or Article SECOND, Section 13 of the Charter) ignores completely the explicit language of the Declaration, Charter, and By laws (even as recently amended) that governs directly and specifically the matter at issue when the Board may properly suspend an OPA member’s contractual/easement rights to use and enter upon OPA amenities, including the Beach Club, Golf Club, and Yacht Club
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E. Implied terms cannot be used to alter express terms. Ford v. Antwerpen Motorcars, Ltd., 443 Md. 470, 477 (2015). Again, what Defendants contend to be their implied (non explicit) power to suspend amenity use for any reason that, in their view, advances community welfare and safety, cannot properly override the explicit and specific limitations in the Declaration, Charter, and Bylaws upon the Board’s power to suspend a member’s right to use amenitiesF.
When interpreting a contract, the court examines the contract as a whole to determine the parties’ intent. Janusz v. Gilliam, 404 Md. 524, 540 (2008). Courts will read the provisions of a contract to complement one another Muhammad v. PG County Bd. of Ed., 246 Md. App. 349, 365 (2020). There is no reasonable way, in the face of the express limitations on the power to suspend amenity use as set forth in the Declaration, Charter, and By Laws, for
C. Contracts are interpreted to give their provisions a reasonable interpretation Sorens en v. J.H. Lawrence Co., 197 Md. 331, 336 (1951). It simply is not reasonable, by any standard, to ignore the express and specific limitations in the governing documents placed upon the Board’s power to suspend a member’s contractual right to use amenities, in favor of some broader implicit suspension power loosely based on the “community welfare” provisions in Bylaw section 5.13(g) and in the Charter.
D. Explicit contract terms negate inconsistent implied terms governing the same subject District Realty Title Insurance Corp. v. Jack Spicer Real Estate Inc., 280 Md. 422, 426 (1977). The explicit and specific limitations in the Declaration, Charter, and Bylaws on the power to suspend a member’s contractual/easement right to use amenities negate and/or override what Defendants contend to be their implied (non explicit) power based purportedly on vague and general “community welfare/safety” language to suspend amenity use for other reasons
A Since at least 2000, the Board has never before suspended an OPA member’s right to use amenities for reasons other than non payment of OPA charges. Plaintiff’s Exhibit 19; Tr., at pp. 81 88.
8 the governing documents to be read as Defendants urge in this case. Doing so would render the express limitations meaningless and inoperative and would elevate and prioritize vague and general (and implicit, if existing at all) powers (to suspend amenity use) over explicit language unambiguously limiting that same power.
All the foregoing rules of contract interpretation support Plaintiff’s position in this matter; none of them support Defendants’ contrived position.
D Josette Wheatley testified that, when she first informed her fellow Board members about the May 20 incident at the Yacht Club (seeking their advice as to what she should do), she
Fourth, respectfully, any Court approval of the Board’s “ban” and its after the fact rationalization for the ban would constitute judicial sanctioning of an utterly selective, arbitrary, and targeted punishment of a political adversary, in a historical context where such action has never before been taken by any OPA Board against any other OPA member. Here are the undisputed facts that are before the Court in this regard:
C. Tom Janasek testified that, on at least ten occasions, he has personally witnessed verbal or physical altercations at Ocean Pines food and beverage facilities. Transcript, at pp. 188, 192. None of those resulted in any action by the OPA Board.
B. The OPA Board, as a body, has never been notified of incidents occurring at the food and beverage facilities, other than a couple of occasions, and has never been notified for purposes of considering punitive action by the Board against the involved parties. Transcript, at pp. 88, 138, 174 175.
As stated, the Board majority has sought to justify the ban (after the fact) as purportedly necessary to advance and protect the community’s safety and “family friendly culture ” Transcript, at pp 161, 172 To be blunt, this is contrived nonsense Registered sex offenders live in Ocean Pines. Exhibit A. Published Ocean Pines Police Crime Bulletins (Exhibit B), including recent ones, report dozens of DUI arrests, domestic violence incidents, assaults, sex offenses, drug related incidents, and other criminal matters occurring in Ocean
9 did not identify Mr. Janasek as having been involved. The Board members’ immediate response, according to Ms. Wheatley, was simply to advise her to notify the police and pursue law enforcement action. It was only after the Board learned that Mr. Janasek was involved, that the Board majority took steps to respond directly themselves with their unprecedented “ban.”
Transcript, at pp. 215, 223 225. E. The Ocean Pines Police the law enforcement agency charged most directly with protecting the safety and welfare of the Ocean Pines community took zero action against Mr. Janasek, even though Ms. Wheatley submitted a criminal complaint and sought charges in regard to the matter. Transcript, at p. 215.
F. The Worcester County District Court, in hearing and deciding the Peace Order proceeding, merely barred Mr. Janasek from having any direct contact with Ms. Janasek (for six months) and/or being present at her house. Plaintiff’s Exhibit 10. As Mr. Daly explained during the hearing (Tr., at pp. 158 159), based on the terms of the Peace Order as entered by the Court, Mr. Janasek is otherwise free to be in the same place, even in the same room, as Ms. Wheatley, including at Ocean Pines facilities and amenities. Plainly, on that basis, the Judge perceived zero threat to the safety of Ms. Wheatley, posed by Mr. Janasek being in her presence at OPA amenitiesG.
(a) Scope of Rule. This Rule governs only judicial notice of a djudicative facts. Sections (d), (e), and (g) of this Rule do not apply in the Court of Special Appeals or the Court of Appeals.
2 Exhibit A includes a state government record from the publicly available Maryland Sex Offender Registry. Exhibit B includes criminal bulletins published by the OPA on its website and prepared for publication by the Ocean Pines Police Department Those criminal bulletins reflect, in pertinent and highlighted part, the numerosity and seriousness of sex crimes, assaults, acts of domestic violence, DUIs, and drug offenses committed over the years by Ocean Pines residents/members. Although these highly probative records (especially in light of Defendants’ claimed “public safety” and “culture” reasons for suspending Plaintiff’s right to use amenities) were not made part of the record during the preliminary injunction hearing, this Honorable Cou rt may take judicial notice thereof; indeed, since Plaintiff hereby asks the Court to take judicial notice of the contents of Exhibits A and B, and does so with supporting information as to source and reliability of those records, Maryland Rule 5 201 mandates that the Court do Maryso.land Rule 5 201 governs judicial notice and provides as follows:
(f)Time of Taking Notice. Judicial notice may be taken at any stage of the proceeding
(b) Kinds of Facts. A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and re ady determination by resort to sources whose accuracy cannot reas onably be questioned (c) When Discretionary. A court may take judicial notice, whether requested or not (d) When Mandatory. A court shall take judicial notice if requested by a party and supplied with the necessary information. (e) Opportunity to Be H eard. Upon timely request, a party is entitled to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notific ation, the request may be made after judicial notice has been tak en.
10 Pines and committed by Ocean Pines residents.2 None of those types of matters have ever resulted in inquiry, investigation, or action by the Board, consideration of potential action by the Board, or any associated special meeting(s), to suspend amenity use in the purported interest of public safety, advancing “family-friendly culture,” or for any other reason the Board might advance under the governing document provisions Defendants rely on herein (after the fact) not even, for example, as to use of Ocean Pines parks and swimming pools by registered sex offenders living in Ocean Pines; or as to use of roads or food and beverage amenities by repeat DUI offenders. Actual and serious crimes are committed regularly in Ocean Pines, by Ocean Pines members and residents; and they have never resulted in any “ban” or other action by the Board, in the name of “community safety,” purportedly to advance a “family friendly culture,” or for any other reason. Also, as the Court pointed out through questioning during the hearing, the Board majority’s 90 day suspension applied only to the OPA’s (three) food and beverage facilities. Ocean Pines has many other facilities and amenities parks, tennis and other racquet
If, as Daly and Perrone contended, only the food and beverage facilities were designated in the ban due to their (unfounded) concerns about Tom Janasek’s use of alcohol, why didn’t they simply ban him from consuming any alcohol at the Ocean Pines food and beverage facilities, without banning him entirely from being there? Defendants admitted during testimony that, when imposing the purported ban, they knew and understood that the ban would interfere with Plaintiff’s tap servicing work at the Beach Club, Yacht Club, and Golf Club. Transcript, at pp. 79, 139, 167. Why did they not create an exception within the ban, to afford Mr. Janacek an opportunity to perform his tap servicing work during certain limited hours and days of the week?
The answer to these questions cutting through all the pretense is fairly clear. The Board majority, when it became aware of the May 20 incident and Tom Janasek’s involvement, saw an opportunity, notwithstanding express governing document provisions they knew stood in their way, to selectively, arbitrarily, and without any precedent target Mr. Janasek, a political adversary, and do it in a way that they understood and intended would interfere directly and materially with his business activities. H. In 2020, Horn, Daly, and Perrone used the later repealed Board Resolution B 08 to censure Mr. Janasek (and to seek his removal from the Board), based on what they alleged at the time to be acts by him that were beyond “the authority given to [him] by the Association Bylaws and Resolutions,” citing section 3.a.8. of Resolution B 08. Plaintiff’s Exhibits 1 and 2 Horn testified during the hearing that, despite the repeal of Resolution B-08, she agrees that the
11 facilities, the golf course, pools, marinas, sidewalks, streets, and paths that Janasek would be free to use under the terms of the selective “ban.” Assuming arguendo there was ever any safety risk to anyone presented by Mr. Janasek (there never has been any), how does the 90 day (food and beverage amenity only) ban genuinely advance public safety (or “family-friendly culture”)?
I. The history of Resolution B 08 (Plaintiff’s Exhibit 2) further demonstrates the opportunistic targeting of Mr. Janasek it was passed in 2018 with the express support of Horn, then repealed in June 2021 by Perrone, Daly, and Horn (and others on the Board) after it had been invoked in connection with a complaint by a female OPA employee of mistreatment by Larry Perrone, including hostility and yelling. Plaintiff’s Exhibits 1 4. Tr., at pp. Notably, that complaint against Mr. Perrone instead of leading to any “ban,” censure, or other action by the Board against Perrone (a member and even leader of the Board majority at the time) led to the appointment of an investigating outside law firm, hired by the Board, no doubt, at considerable expense to the OPA, and a subsequent finding that the female employee had simply been “thin skinned” in the face of Perrone’s treatment. Tr. at pp. 22 24, 64 65, 174. Fifth, the notion advanced by Defendants to the effect that, as legal title holder to the Beach Club, Golf Club, and Yacht Club properties (and other OPA amenities), the OPA (or more specifically its Board) may unilaterally and selectively regulate and deny use of and access to those amenities just as any other business/property owner may do is patently wrong, at least as
12
“Ethical Standards” set forth in that Resolution should still govern the conduct of OPA Board members. Tr. at p. 15. Apart from requiring that Board members always act within the authority given to them in the governing documents, the standards set forth in Resolution B 08 include “promot[ing] uniform enforcement of the [governing documents] when conducting Association business.” Defendants’ purported “ban” violates both of those ethical standards as Horn openly admitted during the June 9 meeting, it is outside the bounds of authority granted in the governing documents; and as developed more fully above, it represents an inconsistent, unprecedented, targeted and arbitrary action, against only one OPA member who has been a political adversary of Defendants, purportedly to further public safety and “family friendly culture.”
13
it relates to OPA members’ use and enjoyment of the amenities/properties. The governing documents, including the Declaration as a recorded instrument and the Charter as an SDAT filed instrument, the Bylaws, and Resolution M 02, constitute and contain clear and express limitations upon the OPA’s common area (amenity) “ownership” rights in this regard (vis à vis OPA members). Again, under Section 11.A. of the Declaration (Plaintiff’s Exhibit 15, at p. 10), Mr. Janasek and all other OPA members have a recorded easement right “for the use and enjoyment” of all OPA amenities. This dynamic and interplay of rights, as between the OPA and its members, simply does not exist in the context of other restaurant and bar operators and their denial of service to a particular customer.
As the Court of Special Appeals held in Sea Watch Stores Ltd. Liab. Co. v. Council of Unit Owners, 115 Md. App. 5 (1997), “real property held in condominium [or HOA] ownership retains all the incidents of real property . . . [but] when restrictions . . . are imposed through the condominium [or HOA] documents, [property owned by the condominium or HOA is] subject to the restrictions imposed by each manner of creation. ”
In Ridgely Condominium Association v. Smyrnioudis, 105 Md. App. 404, at fn. 2 (1995), the Court of Special Appeals considered the propriety of a Board resolution (and subsequent Bylaw amendment) that prohibited the customers of commercial unit owners from using the condominium building lobby. The Court held: “To deny the use of the lobby [by] clients of the commercial [unit] owners constitutes an ultra vires taking [by the Condominium Board] of a portion of [those unit owners’] percentage interest in the common areas in derogation of the Ridgley Condominium declaration.” Likewise, in the present case, banning Plaintiff from “common area” amenities the Beach Club, the Yacht Club, and the Golf Club in which Plaintiff has recorded easement rights of use and enjoyment, in derogation of express provisions
14 of the governing documents (limiting the circumstances under which that can be done), constitutes an ultra vires (not to mention targeted and arbitrary) taking of Plaintiff’s real property rights by the Board majority.
II. THE “BUSINESS JUDGMENT RULE” PROVIDES NO COVER TO DEFENDANTS IN THIS CASE.
The business judgment rule, where it applies, does not insulate Board members from the kind of decision making that is at issue in this case. See Mountain Manor Realty, Inc. v. Buccheri, 55 Md. App. 185, 194 (1983) (a board must be properly exercising its powers in order for its decisions to be protected under the business judgment rule; when the board is not acting in accordance with basic “ground rules” governing its authority, its decision making is not protected by the business judgment rule); Black v. Fox Hills, 90 Md. App. 75, 82 (1992) (making clear that it is only the “legitimate” decisions of board members that may properly be protected under the business judgment rule); Tackney v. U.S. Naval Academy Alumni Ass’n, Inc., 408 Md. 700 (2009) and NAACP v. Golding, 342 Md. 663, 678 (1996) (holding that Maryland courts will and can properly intervene in the affairs of non stock Maryland corporations where there is “bad faith, fraud, irregularity, or arbitrariness”); Mena v. Council of Unit Owners of the Garden Condo., 220 Md. App. 1192 (2020); Reiner v. Ehrlich, 212 Md. App. 142 (2013). See also, Worcester County Circuit Court Ruling in Richard Farr v. OPA, et al., Case No. C 23 CV 21 000127 (January 6, 2022) (Copy attached hereto as Exhibit C). “[I]n Tackney v. United States Naval Academy, the court citing Golding, indicated that it would apply the business judgment rule and intervene in the dispute only if the Board’s action was ‘fraudulent or arbitrary.’ 408 Md. 700, 715 (2009). In Golding, fraud was interpreted to include action unsupported by facts or otherwise arbitrary. 342 Md. 663, 677 (1996).” (Page 8 of Exhibit C). “The Golding court noted that if an organization acts inconsistently with its own
As discussed above and as otherwise presented in this case, the decision making at issue in this case was without a good faith legal (or factual) basis, was unprecedented, arbitrary and selective, was not based on any historically consistent pattern, unfairly targeted Plaintiff, and violated express and directly applicable provisions of the governing documents (and as explained below, the express public policy of this State). As such it was illegitimate and un protected by the business judgment rule as that rule has been adopted and articulated by Courts in this State.
5) The utter arbitrariness of the purported ban is dramatic i) in at least the past 22 years, no such ban has ever before been imposed by the Board against any OPA member, for any reason other than non-payment of OPA charges; ii) no such ban (purportedly to protect public
3) None of the Board members supporting the ban cited to any provision of the governing documents that supported or authorized the action being taken.
1) The Board majority convened a special meeting for the purpose of imposing the purported ban only after learning that the altercation involved Tom Janasek, while they had previously only suggested to Ms. Wheatley that she seek law enforcement intervention.
4) Even in the public statement made after the special meeting by Dr. Horn and in the June 10 notice letter to Mr. Janasek, there was no citation to any governing document provision authorizing the Board imposed ban.
Specific and uncontroverted evidence presented so far demonstrating the arbitrariness (and bad faith) of the Board majority includes:
15 rules, its action may be sufficiently arbitrary to invite judicial review. 342 Md. 663, 678 (1996).” (Page 9 of Exhibit C).
2) During the special meeting, Dr. Horn openly admitted that the purported ban was outside the scope of “relief” and powers provided by the governing documents
6) The Board majority acted in direct contravention of express provisions in the Declaration, the Charter (as amended and restated), and the Bylaws (as amended earlier this year), and they did so without explaining how or why, in their view, they were not constrained by those express provisions
7) Neither Horn, Perrone, Daly, Peck, or Wheatley testified at the preliminary injunction hearing (or stated in any supporting Affidavit filed before the hearing) that they had followed advice of counsel in formulating and/or imposing the purported “ban.” In contrast, in the Farr case, in which Mr. Tucker testified and attended all evidentiary hearings (including two preliminary injunction hearings), Perrone, Daly, and Horn had asserted unsuccessfully in defense
16 safety and the “family-friendly culture” of Ocean Pines) has ever been imposed (or even considered) as to the many OPA members/residents getting into arguments at OPA facilities or, far worse, committing serious crimes in Ocean Pines, including repeat DUI offenses, sex offenses, assault, domestic violence, and child pornography offenses; iii) when Board majority member Larry Perrone was charged with being verbally abusive to a female OPA employee, with the support of Daly, Horn, and their allies, no action was taken against him, indeed thereafter, they repealed in its entirety the Board Resolution (B-08) that had regulated Board conduct and provided employees with a mechanism for formally complaining about Board conduct; iv) the terms of the ban themselves, purportedly intended to promote public safety and the “family friendly culture” of Ocean Pines, are arbitrary Mr. Janasek is banned from only three of the many OPA facilities; he is banned purportedly (and falsely) out of a concern about alcohol consumption, but the ban prohibits him from entering the subject facilities rather than simply from consuming alcohol there; he is banned for only 90 days, despite the broad and general public safety threat that Defendants falsely claim that Mr. Janasek presents.
8) OPA attorney Jeremy Tucker did not testify and was not even present at the preliminary injunction hearing, to support the purported “ban” or to testify that he sanctioned or approved or recommended such action by the Board majority
9) Dr. Horn made knowingly misleading statements at the June 9 meeting, in connection with publicly advocating for the ban, that the governing documents are “50 years old” and that so called OPA “founders” could not have imagined a verbal altercation at a bar/restaurant facility when they drafted the governing documents (which she conceded do not authorize the purported ban). She admitted at the preliminary injunction hearing that the Charter, the By Laws, and Resolution M 02 are nowhere near “50 years old”; that she, herself, had been involved in the drafting of some of those documents; that she has no idea who the so called “founders” are to whom she had referred (other than current Board members); and that she never spoke with any “founder” to determine their intent or mindset on the subject of verbal altercations occurring at Ocean Pines amenities. (Tr., at pp. 59 61).
17 of their wrongful actions that they had followed the advice of the OPA legal counsel. It is plainly inferable here though not yet proven conclusively that Horn, Perrone, Daly, Peck, and Wheatley acted contrary to legal advice in imposing the purported ban.
10) As this Honorable Court noted in the Rick Farr case, the Court of Appeals held in Golding that the policy of minimizing judicial involvement in the affairs of private organizations (including HOAs) “does not mean that members [of such organizations] have no guarantee of procedural fairness.” Exhibit C, at pp.8 9 (citing Golding at 678). Having been chastised by this Court less than a year ago for failing to afford any procedural fairness to Mr. Farr (in connection with wrongly disqualifying his candidacy), Daly, Perrone, and Horn (this time with their appointed allies, Peck and Wheatley) afforded zero procedural fairness to Mr. Janasek before
12) It is notable that the action taken by the Board majority at issue in this case the purported ban and the manner in which it was imposed would directly and materially violate the provisions of H.B. 615, had that new law operatively applied to the Board actions (taken only a few months earlier than October 2022) But importantly, that new law was approved and
18 handing down their purported ban. He received no preliminary warnings, no OPA (internal) hearing or appeal rights, no direct prior notice, and no adjudicatory process at all. And the Board
Resolution that had made it an ethical violation for members of the Board to act outside of their express authority (as Horn admitted during the June 9 meeting they were doing) (Resolution B 08) had been repealed by Horn, Perrone, Daly (and others) after Perrone had been subjected to its operative provisions (and also after they had previously deployed that Resolution offensively in an effort to remove Mr. Janasek from the Board).
11) As in the Farr case, the bad faith continues as this case proceeds during a July 15 OPA Bylaw Committee meeting, in part out of a concern that there could be advers e implications for her position in this case, Horn quashed discussion by that committee of adding an appeal process into Resolution M 02 (the one authorizing facilities managers and/or the OPA general manager to suspend a member’s right to use amenities for declared covenant or rule violations).
Although there is a new Maryland law in effect (H.B. 615, see Exhibit D) that requires all Maryland HOAs to provide extensive procedural rights to HOA members before “infringing upon” any of their substantive rights, and the changes being discussed by the Bylaw committee on July 15 (see Plaintiff’s Exhibit 18) would have been at least partly in accordance with that new law (which is effective as to action taken against members on or after October 1, 2022), Horn quashed any discussion of that, at least in part, to protect her own position as a Defendant in this pending case.
4 Under Section 14 118 of the Real Property Article, the term “governing body ” is defined as a person who has the authority to enforce: i) a whole condominium declaration ; ii) articles of incorporation of a coun cil of unit owners, of a cooperative housing corporation, or of a homeowners association; or iii) bylaws, rules, and regul ations of a whole condominium, cooperative housing corporati on, or homeowners association. Md . Code, Real Property, §14 118(a)(1). “Governing body” is also defined under that st atute as including a homeowners association, a whole
3 Pursuant to Maryland Rule 5 201, Plaintiff hereby asks the Court to take judicial notice of Exhibits C and D; and based on the nature of those documents and the f act that Plaintiff has asked the Court to take judicial notice of them, under Rule 5 201(d), Plaintiff respectfully submits that the Court must take judicial notice thereof.
Section 5 422 (of the Courts and Judicial Proceedings Article) provides that directors and officers of a “governing body” (as that term is defined in section 14 118 of the Real Property Article4) “may not be held personally liable for injuries sustained by a party if the
III. SECTION 5-422 OF THE COURTS AND JUDICIAL PROCEEDINGS ARTICLE AND SECTION 14118 OF THE REAL PROPERTY ARTICLE DO NOT INSULATE THE INDIVIDUAL DEFENDANTS FROM PLAINTIFF’S CLAIMS. Defendants have argued that they are immunized from liability for Plaintiff’s claims under section 5 422 of the Courts and Judicial Proceedings Article and section 14 118 of the Real Property Article. They are wrong.
19 signed by Governor Hogan on May 12, 2022 (see Exhibit D, at p. 2 thereof), having been previously passed by the General Assembly. Accordingly, on June 9, 2022, when the “ban” was summarily imposed by the Board majority as it was, it was in direct contravention of the provisions of the newly approved H.B. 615, and therefore the expressed public policy of this State, even if the new law’s provisions would not be prospectively “operative” until October 2022 3 13) The Board majority members who testified at the preliminary injunction hearing admitted that, when they voted in favor of the purported ban, they understood full well that the ban would interfere directly with Mr. Janasek’s tap servicing work at the Ocean Pines amenities. In other words, Defendants were knowingly and intentionally causing economic harm to Plaintiff’s business interests by imposing the arbitrary and unauthorized ban.
20 director or officer 1) acted within the scope of the director’s or officer’s duties, 2) acted in good faith, and 3) did not act in a reckless, wanton, or grossly negligent manner.” Md. Code, Courts and Judicial Proceedings , §5 422(c). Except as set forth in that provision, “a person sustaining an injury as a result of a tortious act of an officer or director of a governing body while the officer or director is acting within the scope of [his] duties may recover only in an action brought against the governing body for the actual damages sustained.” Md. Code, Courts and Judicial Proceedings, §5 422(a). Under section 14 118 of the Real Property Article, “a person sustaining an injury as a result of the tortious act of an officer or director of a governing body while the officer or director is acting within the scope of the officer’s or director’s duties may recover only in an action brought against the governing body for the damages described” in section 5 422(b) of the Courts and Judicial Proceedings Article. Md. Code, Real Property, §14 118(b)
Accordingly, under those statutory provisions, in regard to tort claims, officers and directors of a whole condominium association, a homeowners association, and a cooperative housing corporation may not be sued personally, and may not be held personally liable, for the claimant’s tort damages; rather, such claimant must (and may properly) bring his tort action for money damages against the governing body itself of the whole condominium association, a homeowners association, and a cooperative housing corporation. Those provisions plainly do not govern or limit in any way: 1) claims against a homeowners association itself (the OPA), as opposed to its Board members; 2) non tort claims against officers and directors of any governing body, e.g., claims for declaratory and injunctive relief and for breach of contract; or 3) claims arising from conduct of directors and officers that is in bad faith and outside of the proper scope of their duties, i.e., conduct that is not authorized under the condominium council of unit owners, and a cooperative housing corporation. Md. Code, Real Property, §14 118(a)(2).
IV. SECTION 2-405.1 OF THE CORPORATIONS AND ASSOCIA TIONS ARTICLE AND SECTION 5417 OF THE COURTS AND JUDICIAL PROCEEDINGS ARTICLE DO NOT INSULATE THE INDIVIDUAL DEFENDANTS FROM PLAINTIFF’S CLAIMS.
The protections afforded to officers and directors under section 2 405.1 of the Corporations and Associations Article and section 5 417 of the Courts and Judicial Proceedings Article do not apply in this context. Those provisions protect directors only when they are acting in good faith, in the best interests of the entity, and with the care “that an ordinarily prudent person in a like position” would use. The allegations set forth in Plaintiff’s Complaint (together with inferences drawn from them) make clear that the challenged conduct of Defendants was in bad faith; it was in direct violation of the OPA governing documents; and it was in conscious disregard of applicable governing document provisions limiting the Board’s power in this context. Also, section 2 405.1 of the Corporations and Associations Article and section 5 417 of the Courts and Judicial Proceedings Article do nothing to insulate the OPA itself from
21 governing documents of the entity. Those limitations on the scope and effect of section 5 422 (of the Courts and Judicial Proceedings Article) and section 14 118 (of the Real Property Article) exist for the obvious reason that directors who act in violation of the terms and conditions of governing documents (bylaws, declarations, resolutions, other instruments) and/or statutes must be subject to (and cannot properly be beyond the reach of) declaratory and injunctive orders of Courts having jurisdiction, and other appropriate relief in, for example, contract (and other non tort) actions. Accordingly, contrary to what Defendants have urged, they are not insulated from Plaintiff’s claims under section 5 422 (of the Courts and Judicial Proceedings Article) and/or section 14 118 (of the Real Property Article)
22 Plaintiff’s claims. V. THE CRITERIA BEARING ON PRELIMINARY INJUNCTIVE RELIEF WEIGH DECIDEDLY IN FAVOR OF PLAINTIFF.
Public interest: The interests of the OPA membership at large will be served by the requested preliminary injunction, which will maintain the status quo until the Court rules finally upon the Board’s unauthorized conduct in banning a member from OPA amenities without the
Irreparable harm: Again, if Plaintiff “serves out” the 90 day “ban” during the pendency of the case, and thereafter prevails as he likely should, he will plainly and inarguably have been irreparably harmed. There will be no conceivable way for him to “get back” those 90 days of amenity use and access, ever, and no matter how the Court might ultimately remedy the situation after trial.
Likelihood of success on the merits: Plaintiff refers the Court to the substantive merits discussion above and in Plaintiff’s other filed papers; Plaintiff plainly presents an eminently stronger case, legally and factually, than as presented by Defendants, and should prevail in the final analysis. At minimum, this criteria for preliminary injunctive relief weighs strongly in favor of Plaintiff.
Balance of harm: Again, this criterion weighs decidedly (even completely) in Plaintiff’s favor for the same or similar reasons that “irreparable harm” does. As stated, Plaintiff will be irreparably harmed if the “ban” is imposed while the case is pending; Plaintiff will also be economically harmed by not being able to perform his tap servicing duties during the 90 days, including being at risk of losing the account entirely. But Defendants will suffer no harm at all none if the ban is enjoined during the pendency of the case. In the unlikely event that Defendants eventually prevail in this case, Plaintiff can “serve out” the 90 day suspension at that juncture, and Defendants will not have suffered any harm.
2) The incident occurred on May 20, 2022. No “ban” has been in place since then, other than during the 11 day period between June 10 (when the written notice of the “ban” was issued to Mr. Janasek) and June 21 (when the TRO was issued) As of the filing of this Memorandum on or about September 15, some four months after May 20th, no conduct of Mr. Janasek has created any public safety issue or “family friendly culture” issue, anywhere in Ocean 5 Plaintiff takes no position as to what Ms. Wheatley has expressed as her subjective concerns in regard to Mr. Janasek and being in his presence. But Ms. Wheatley’s subjective feelings/fears in this regard have no bearing on the matter before the Court. This Honorable Court is not deciding , as the Worcester County District Court previously did, whether and on what terms to grant a Peace Order for the protection of Ms. Wheatley. It is not deciding, as Ocean Pines Police previously did, whether to pursue so me criminal case against Mr. Janasek. It is, instead, sitting as a civil Court, in equity, deciding only whether the Board majority had authority to impose the purported “ban” against Mr. Janasek.
23 power to do so. Maintaining the status quo that is, the most recent uncontested status between the parties (i.e., just prior to June 9, 2022) will serve and advance the public interest much more than a temporary sanctioning by this Court, through denial of a preliminary injunction, of the Board’s unauthorized, arbitrary, and summary action against an OPA member’s contractual rights. Defendants have feigned that the 90 day ban is necessary to protect the Ocean Pines community, including Ms. Wheatley5, from Mr. Janacek; and this will presumably be their “public interest” argument as to the requested preliminary injunction. For all the previously discussed reasons, this is a contrived after the fact rationalization for the purported (and unauthorized) “ban ” The following points undermine such “public interest” contention:
1) The actual events of the incident at issue, as reflected in all of the evidence before the Court, do not support the Board majority’s claim of an immediate and compelling threat to public safety or “family friendly culture” affecting all of Ocean Pines, the customer base at its food and beverage facilities, or any of its individual members. The purported “threat” is unfounded and disingenuous, if not willfully made up by the Board majority
Never, in regard to any of those crimes, has the Board ever convened a special meeting, investigated the conduct of the involved Ocean Pines members/residents, and/or taken action against them purportedly pursuant to the governing documents. Not ever. This is because, until they saw an opportunity to punish Tom Janasek, the Board majority and their predecessors understood and adhered to the express limitations on their authority.
CONCLUSION
4) Although Ms. Wheatley claims to have generally stayed away from Ocean Pines amenities out of a concern that Mr. Janasek may be there, the record reflects that she has been to the Yacht Club, the Beach Club, and the Golf Club since May 20, 2022, without adverse consequence, even while there has been no enforceable “ban” against Mr. Janasek being there.
5) As developed more fully above, there are dozens of egregious criminal acts sex offenses, assaults, prostitution, drug offenses being committed all the time in Ocean Pines, by Ocean Pines members and residents, which present real and significant public safety risks and threats, and real and direct impact upon the purported “family friendly” culture of the Pines.
3) The Peace Order issued by the Court, which remains in place until December 2022, prohibits any contact between Mr. Janasek and Ms. Wheatley, and the “ban” would add nothing from a purported “protection” standpoint to the that Peace Order.
Tom Janasek, like all other members in good standing of the OPA, has a contractual/ easement right and property interest to use, enjoy, and be present at all Ocean Pines amenities, subject to any duly and properly adopted (and properly enforced) rules and covenants limiting or
24 Pines, for any of its members. This is because, notwithstanding his verbal altercation with Ms. Wheatley, Mr. Janasek presents no legitimate public safety threat, to anyone in Ocean Pines or outside of Ocean Pines.
Defendants claim disingenuously to have banned Mr. Janasek out of a concern for the public safety and welfare of the Ocean Pines community, a concern that has no real support in the record, while they and their predecessor Board members have ignored completely the violent offenders, registered sex offenders, and drunk drivers living (and committing crimes) in Ocean Pines. This situation represents another in a troubling pattern of ultra vires, illegitimate, bad faith, and ends-oriented acts by this Board majority (Perrone, Horn, Daly, and allies) first there
25 regulating such use. The action taken by the Board majority against Janasek the purported 90day “ban” from using OPA food and beverage amenities was and is unauthorized and beyond the scope of the Board’s power under clear and express provisions of the Declaration, Charter, Bylaws, and Resolutions. Under well-established rules of contract interpretation, the express limitations on the Board’s authority to suspend a member’s contractual/easement right to use OPA amenities are controlling here; and they have primacy over what the Board majority claims (after the fact and in unprecedented and selective fashion) to be implicitly within its authority to (purportedly) advance the interests of public safety and promote a “family friendly culture” in Ocean Pines.Theevidence adduced to date is clear that the Board majority has knowingly acted contrary to express provisions of the governing documents; their actions are (and were on June 9, 2022) in contravention of the stated public policy of this State (as reflected in H.B. 615) and applicable Maryland law; the Board majority took their bad faith action only after learning of Tom Janasek’s involvement in the May 20th incident at the Yacht Club; and they opportunistically did so in unprecedented fashion, having never before revoked an OPA member’s right to use OPA amenities for reasons other than non payment of OPA charges.
27 walked away with nearby staff; 7) the entire incident lasted less than a minute; 8) Ms. Wheatley testified that she was and is (subjectively) fearful of Mr. Janasek as a result of the incident; and
9) Ocean Pines police saw no basis for any criminal charge of any kind The foregoing presents no legitimate or genuine basis none at all for any broad “public safety” threat or risk, posed by Mr. Janasek, and impacting the OPA membership at large and/or patrons of any OPA amenitiesDefendants7 and their supporters may contend that, no matter what the legalities are or what the governing documents say, on May 20th at the Yacht Club, Plaintiff yelled at Ms. Wheatley, possibly using inappropriate profanities and/or calling her names, and possibly causing her to be fearful of Plaintiff (in that moment or more generally); and that, on that basis alone, the Board could rightly punish and “make an example” of Plaintiff, and seek to deter similar conduct by others, by selectively imposing the unprecedented and unauthorized “ban” upon him. After all, they might contend, the May 20th incident was not Mr. Janasek’s “finest hour” and “he brought this upon himself.” Setting aside the profound legal invalidity of this line of thought/argument, it takes Ocean Pines down a fundamentally perilous path To permit the Board majority (and consequently any Board majority, at any time) to summarily impose a “ban” of this kind, as it sees fit and on terms it alone deems appropriate, against any OPA member it selectively and unilaterally regards as having behaved in an unacceptable way, is tantamount to anointing the OPA Board as a sort of “Big Brother behavioral police” regulating members’ conduct and meting out punishment against them, to the cheers of some segment of the electorate, under the vague and subjectively/arbitrarily defined auspices of “community welfare.” Aside from the legalities which weigh completely in Plaintiff’s favor here, the public interest of 7 And the “no contact” nature of the Peace Order (entered before the June 9 special meeting) addressed any subjectively voiced “fear” that Ms. Wheatley has or had.
28 Ocean Pines mandates that this Board majority should not be allowed to establish this sort of dangerous dictatorial paradigm for the Subdivision’s future.
Plaintiff respectfully requests that the Court:
There is no legal or factual basis for the purported “ban,” it violated Plaintiff’s contractual/easement rights, and it was an ultra vires act by the Board majority, imposed arbitrarily and in bad faith; but at minimum, at this juncture and based on the record before the Court, the criteria for preliminary injunctive relief all of them weigh heavily in favor of Plaintiff.WHEREFORE,
Date: 9/2/22 AYRES, JENKINS, GORDY & ALMAND, P.A. By: _______/s/ Bruce F. Bright_____________ Bruce F. Bright (Client Protection Fund # 0006120002) 6200 Coastal Highway, Suite 200 Ocean City, Maryland 21842 410 723 bbright@ajgalaw.com1400 Attorneys for Plaintiff
A. Issue a preliminary injunction against enforcement of the purported “ban,” and restoring Plaintiff’s right to use all OPA amenities, including those listed and identified in the Notice Letter, during the pendency of this case. B. Award to Plaintiff his reasonable attorney’s fees incurred in connection wit h seeking a TRO and preliminary injunction; and C. Award to Plaintiff such other and further relief as the Court deems just and fair.
