By Editorial Staff
Published May 21, 1996
Abortion Doctor Agrees To Drop Suit Vs. Orlando
By Sherri M. Owens of The Sentinel Staff
The city of Orlando on Monday agreed to pay Dr. James Scott Pendergraft $325,000 to settle his lawsuit, but the victory did not come easily for the gynecologist who performs abortions.
In fact, it almost didn’t happen.
Led by Orlando Mayor Glenda Hood, the council initially voted to reject the settlement, though doing so would likely have cost the city even more in a court battle.
But after a 30-minute recess and private meeting with their lawyers, council members unanimously reversed their decision. Council member Frankee Hellinger abstained.
“We felt we needed a clear understanding of our options,” said Hood, explaining the unusual decision to recess in the middle of a council meeting.
During the recess, however, Pendergraft considered withdrawing his offer, his spokesperson, Marti Mackenzie, said. Mackenzie was in New York but spoke with the doctor by phone.
“This is not a time for celebration,” she said after learning of the council’s vote in her client’s favor. “It’s a time for acceptance of something that’s in the best interest of the community.”
The settlement includes payment for all damages including loss of past and future income, loss of good will to Pendergraft’s business and attorney’s fees, said Jeff Slater, lead outside counsel for the city. In exchange, Pendergraft drops his lawsuit.
The doctor sued the city in December, demanding lost wages and legal fees of as much as $1 million. The city had tried to keep him from opening his Orlando Women’s Center, which performs gynecological procedures including second-trimester abortions.
City officials had argued that second-trimester recovery time would be 90 minutes or more, making Pendergraft’s facility a clinic in an area zoned for medical offices and homes.
But Pendergraft’s attorneys argued that the recovery time for second-trimester abortions is 50 minutes, making his facility an office and within city zoning laws.
In Monday’s closed-door meeting with attorneys, the council was reminded of the strongly worded 51-page order issued by U.S. District Judge Patricia Fawsett. It rejected the city’s recovery-time argument and gave Pendergraft permission to perform later-term abortions at his facility, about a half-mile from City Hall at 1103 Lucerne Terrace.
“The (Orlando City) Council had reached the decision that it did not want Dr. Pendergraft to open his facility . . . before the hearing began and then searched for a method to deny (his) applications,” Fawsett wrote in her April 18 ruling. “The city denied his application without the substantial justification required by law.”
It was largely because of that ruling that the council changed its vote.
“I’m still not in favor of that operation at that location or anywhere in the city of Orlando, but I think we have to reconsider in light of that ruling,” council member Sheldon Watson said before the second vote.
Hood said the city was “between a rock and a hard place” and that the decision was a blow to home rule – allowing a community to set its own guidelines.
Had the rejection of the settlement not been overturned, the city would have faced Pendergraft in court early next year, Slater said.
Attorneys for both sides, meanwhile, would have continued to add to their legal fees. “As far as costs and attorney fees,” Slater said, “we may have just seen the tip of the iceberg.”
City staff has been advised to reexamine the land-use ordinances that define medical offices and medical clinics “so we don’t find ourselves in a situation like this in the future,” Hood said.
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