In one local community, the challenge posed by sovereign immunity.

Something as simple as building a swimming pool next to the Poinciana YMCA and Poinciana Community Center could be prohibitively expensive because of insurance costs. (Photo by Michael Freeman).

POINCIANA – Of all the challenges that a community can face, one of them sounds fairly easy: getting a swimming pool built next to the local YMCA so families can have a place to cool off in the summer.
Assuming funding is available, that should be the only challenge, correct?
If only it were that simple, said Keith Laytham.
In fact, the effort to get a swimming pool built in Poinciana is so complex that the civic group Laytham is the president of, Poinciana Residents for Smart Change, has scheduled a meeting for Monday, Oct. 22, at Palmetto Elementary School to see if residents can come together and work out a solution.
“The meeting on October 22 is a community brainstorming session to talk about a swimming pool,” Laytham said. “The intent is, let’s take a look at what we did with the Pionciana Parkway, which was put together a work group and put together some ideas to try to make this happen. Let’s hear what people’s ideas are.”
The Poinciana Parkway was a long stalled highway project, to build a new toll road to create easier access in and out of the community of 10 villages crossing Polk and Osceola counties. Only recently did the project get a green light for a groundbreaking, tentatively scheduled for November.
So if the community can come together to get an entirely new highway built, why would something as simple as a swimming pool be a challenge?
That, Laytham said, concerns one issue: insurance coverage, which he said would likely be prohibitively high if the community tried to get the pool built.
“It’s the same old problem that we always get into,” Laytham said. “The original plan was that next to the YMCA by the (Poinciana) Community Center on the Polk side of Poinciana, there would be a swimming pool, and I’ve even seen the plans for that.” Both the Community Center and the YMCA are on Marigold Avenue in Poinciana.
The holdup for the pool isn’t money for construction, but for insurance, he added.
“The owner for that land would be a private corporation, so the insurance would be astronomical,” he said.
And the best possible solution, he said, may be for Polk County government to take over the land and own it.
“There’s a thing called sovereign immunity, something that municipal entities in Florida have, but private entities do not,” Laytham said.
Sovereign immunity is an old English principle dating back to the days when kings and queens ruled England. The principle holds that the monarchy is immune from criminal or civil prosecution – in other words, no one can sue the king.
In the United States, including here in Florida, it means that the government is immune from lawsuits, unless the state waives this immunity.
In Florida, the state has waived sovereign immunity to allow an injured individual to recover up to $100,000, and potentially another $100,000 if there are dependants.
What that means is someone suing a municipality can only get the first $100,000 of any judgment they win, even if a jury awarded them millions.
Since the land next to the Poinciana YMCA is privately owned, no sovereign immunity applies, and since the pool would be operated by the community’s homeowners association, the Association of Poinciana Villages, the APV and potentially every homeowner that pays dues to it could be held liable in the event of a lawsuit related to the swimming pool.
“Let’s do a what if,” Laytham said. “Suppose the APV owned the land the pool was on, and a kid drowned, and the (litigants) said the lifeguard was not paying attention, and they won a judgment for $4 million. That judgment, because it’s a private corporation, would be carried out on the APV, and if they didn’t have the money for it, every homeowner covered by APV would be on the hook for that.”
This isn’t a new issue for Poinciana. Last year, Osceola County took over control of some parks in Poinciana because the APV could not afford the insurance costs.
“That way if Suzie breaks her leg, Osceola County can’t be sued,” Laytham said.
Likewise, the Poinciana Parkway was supposed to be built by the community’s largest developer, AV Homes. But the developer could not afford the $170 million price tag, and instead turned to the Osceola and Polk County governments to build the parkway as a public road.
Jeanette Coughenour, manager of the APV, said she thinks that issue can be overcome, and that the bigger challenge will be securing the funding for a pool. It will likely cost around $2 million to build, she said.
“The Y would build it and own the pool,” Coughenour said. “We’re ready. We just have to organize the coalition to move forward on raising the money.”
The other possibility, she said, is for one benefactor to donate the entire amount, then get the pool named after them.
But while admitting that sovereign immunity is a challenge, Coughenour thinks it can be overcome.
“Liability is a big concern,” she said. “It’s huge. But nothing is insurmountable.”
This issue comes up in another way, Laytham said. Several years ago, he had supported an unsuccessful effort to have Poinciana incorporated as a municipality – with 84,000 residents, Poinciana now has a larger population than some area cities – but the effort died after opponents turned out at public meetings and convinced the community’s state lawmakers not to take the plan to the full Legislature. Right now, Poinciana’s 10 villages are in unincorporated sections of Osceola and Polk counties.
Incorporation, he noted, would have solved this issue.
“This is one thing people never understood about the incorporation issue,” Laytham said. “Just by flipping the switch and turning APV into a municipal government, all of a sudden sovereign immunity comes into play and they can build a swimming pool immediately.”
That’s why Laytham hopes that by forming a task force on the issue, the residents can figure out a way to make the pool a reality – and not a dream continuously bogged down by insurance concerns.
“Maybe we can get people together and come up with a solution for the swimming pool,” he said.

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