The Hearing Officer Recommended That Abortions Be Allowed In A Building Near Downtown Orlando. The City Council Can Override The Mediator.
By Dan Tracy of The Sentinel Staff
February 21, 1996
A Maryland doctor should be allowed to perform abortions in a building near downtown Orlando despite opposition by the city, a hearing officer decided Tuesday.
The recommendation can be rejected by the City Council when it meets March 11, but such a move likely would make for a strong appeal point in court.
Dr. James Pendergraft intends to start his practice at 1103 Lucerne Terrace as soon as he can obtain city permits, said Marti Mackenzie, an Orlando public relations consultant acting as his spokeswoman.
“Dr. Pendergraft has been completely confident of his right (to open) from the beginning. . . . This is definitely a victory,” Mackenzie said.
Orlando Mayor Glenda Hood and council members were advised by attorneys not to comment Tuesday because they will, in effect, be acting as a judge when they consider the ruling next month.
“You don’t see judges talking about a case when they haven’t heard all the evidence,” said Jean Burnett, an assistant city attorney handling Pendergraft’s proposal.
Hood previously had said she was against Pendergraft’s planned business because it would harm property values in the area by attracting anti-abortion demonstrations.
Tuesday’s suggested order was written by attorney David Coffey of Gainesville, who was paid $85 an hour by the city to mediate the dispute.
He sided with Pendergraft, writing that the doctor’s “right to conduct the proposed use as a matter under the code be acknowledged by the City Council.”
At issue was Pendergraft’s contention that the city violated his constitutional right to due process by refusing to give him an occupational license.
Last October, Pendergraft bought a colonial-style brick building less than a mile south of City Hall for $250,000, according to Orange County property records.
Shortly before his purchase, Orlando approved, then took away, a zoning permit that would have allowed Pendergraft to do business among a cluster of medical offices and residences.
Intending to open Dec. 1, Pendergraft was granted the temporary acceptance by changing the description of his enterprise from a “clinic” to an “office.”
A clinic, by City Hall definition, offers procedures where patients might require several hours of recovery, as opposed to offices, where clients leave within 60 minutes.
During 17 hours of testimony stretching over two days last month, Coffey listened to both sides discuss recovery times:
Pendergraft, as well as an abortion clinic manager, said under oath that most patients leave no more than 25 minutes after the procedure.
The city produced a Texas doctor who said recovery times of two hours or more were typical. The doctor admitted under cross-examination that she opposed abortions for religious reasons.
Coffey’s nine-page opinion could be a precursor to a ruling by U.S. District Judge Patricia Fawsett, who Jan. 5 listened to Pendergraft and the city argue over his business. She has not ruled, nor has she indicated when she might.
Pendergraft, a 38-year-old obstetrician and gynecologist, is seeking an order allowing him to open, plus monetary damages. He said he is losing $35,000 a week in income and in expenses.