OCEAN PINES – A Worcester County Circuit Court judge has ruled in favor of a preliminary injunction that will prohibit the Ocean Pines Association (OPA) from enforcing a 90-day amenity ban against former director Tom Janasek.
Last Friday, Judge Beau Oglesby issued an opinion and order granting Janasek’s motion for a preliminary injunction, allowing him to continue using Ocean Pines’ food and beverage amenities as his lawsuit against the association and its board of directors makes its way through the court system.
The opinion and court order comes weeks after an Aug. 25 hearing, in which Oglesby set a 25-day timeline to rule on the preliminary injunction request.
“Mr. Janasek is, of course, pleased with the Court’s ruling, which we feel is amply supported by the testimony given in August, the factual record otherwise developed, and applicable law,” said Bruce Bright, Janasek’s attorney. “The preliminary injunction means that the purported ‘ban’ will not be effective or enforceable while this case is pending, and we expect that, should the matter continue to be litigated by the OPA, the preliminary injunction will become permanent and that Mr. Janasek will otherwise prevail at the end of the case.”
In June, the Ocean Pines Association Board of Directors voted 5-2, with Directors Doug Parks and Rick Farr opposed, to ban Janasek from the Yacht Club, Golf Clubhouse and Beach Club for 90 days following an altercation between Janasek and former director Josette Wheatley.
While at the Yacht Club Tiki Bar on May 20, Janasek reportedly launched into a verbal tirade over Wheatley’s vote to elect the next association president.
Janasek was ultimately escorted from the property, and Wheatley has since obtained a peace order preventing Janasek from contacting her for a period of six months.
In June, however, Janasek filed suit against the association and four board members – Colette Horn, Frank Daly, former director Amy Peck and former director Larry Perrone – arguing that the imposed ban was not only a violation of the community’s governing documents but prohibited him from doing business as an independent contractor for AC Beverage, which services bar equipment at Ocean Pines food and beverage facilities.
Board members have asserted the decision to ban Janasek from food and beverage amenities was a matter of safety.
“Our governing documents do give us the authority to provide for the safety at our amenities, not only for members of the association but anyone who comes to our amenities,” Perrone said in June. “And while there are some contradictions in the bylaws, the bylaws clearly state that we have a right and obligation to provide for safety at our amenities.”
An issue debated before the court in August was whether the association is protected by the business judgement rule, which is the presumption that the directors acted in good faith. In an opinion issued last week, Oglesby argued that was not the case, noting that the board had called a special meeting to ban Janasek from food and beverage amenities only after learning of his identity.
“Mrs. Wheatley stated, more than once throughout the hearing, that she did not identify the individual who accosted her as she ‘wanted an honest answer …,’” the opinion reads. “It was only after the identity of Mr. Janasek became known to the Board that there was a special meeting called and a motion made to suspend Mr. Janasek’s right to use certain OPA amenities and facilities. The actions of the Board, in advising Mrs. Wheatley to report the matter to the police and then moving to suspend Mr. Janasek only after learning he was the other individual involved in the altercation, is a sufficient demonstration of bad faith to justify judicial review.”
Oglesby also noted that the court must determine the appropriateness of a preliminary injunction by weighing the likelihood that the plaintiff will success on the merits, whether the plaintiff will suffer irreparable harm, the balance of convenience and public interest.
“Turning to the factors that this Court must consider, this Court finds all factors weigh in favor of Mr. Janasek, and therefore, Plaintiff is entitled to a preliminary injunction,” the opinion reads.
Specifically, Oglesby pointed out that the association’s governing documents limited in what instances the board could ban members from OPA amenities and facilities, and that Janasek’s employment would be directly impacted by the 90-day ban. He added that the matter of public interest weighed in favor of Janasek.
“This Court is not swayed by Defendants’ argument ‘that the OPA Board was trying to foster a safe, family-friendly environment at its restaurant amenities, not only for OPA members, but also for the general public …,’” the opinion reads. “If the Board truly wanted to create a safe environment, it would logically follow that Plaintiff would be banned from all amenities and facilities.”
In a statement last Friday, Bright said he hoped the board would reconsider its position.
“Hopefully, with a newly constituted Board and new Officers now in place, the Board might reconsider whether continuing to fight this battle makes any sense for the OPA membership,” he said. “There would seem to be other matters and concerns that should take priority over defending yet another bad faith decision – targeting a political opponent – by the former Board majority, most of whom are no longer in office.”
Parks, the association’s president, did not return requests for comment this week.