DATE: Wednesday, May 21, 1997               TAG: 9705210495

SECTION: LOCAL                   PAGE: B1   EDITION: FINAL 

SOURCE: BY TOM HOLDEN, STAFF WRITER 

DATELINE: VIRGINIA BEACH                    LENGTH:   95 lines

DEFAMATION SUIT TESTS THE LIMITS OF FREE SPEECH A BEACH MAN'S STRONG REMARKS AT A COUNCIL MEETING PROMPT ACTION.

Last month, Charles Lomonaco did his civic duty and stood before the City Council to express his opinion about how the city should spend some of his tax money.

On Tuesday, he learned he was being sued for speaking out.

During a public hearing April 17, Lomonaco was among 80 citizens who attended a meeting at Princess Anne High School to offer opinions about the city's proposed capital and operating budgets.

Lomonaco argued that money should be set aside to purchase and tear down the Bow Creek Motel and the San Trap Restaurant & Bar.

He, along with many members of the Princess Anne Plaza Civic League, has been critical of the motel and the bar, which have a history of poor relations with the neighborhood. Residents have complained the businesses require a heavy police presence and degrade the neighborhood's quality of life.

Now the bar's owner, Dale Sufficool, is suing Lomonaco for defamation in Virginia Beach Circuit Court, alleging that Lomonaco's comments about his bar were untrue and harmful to the businesses' reputation. Sufficool wants $25,000 in compensatory damages and $25,000 in punitive fines.

Apart from the merits of the complaint, its presence on the court's docket raises a question about how critical citizens may be when commenting on matters of public interest and when businesses themselves become ``public figures'' open to criticism.

Lomonaco, an employee of the City of Norfolk's Real Estate Assessor's office, said he had not been notified officially that he had been sued.

During his April comments, Lomonaco cited Virginia Beach Department of Public Health records that showed the bar had been cited for 80 health code violations, according the lawsuit, filed May 15.

The lawsuit quoted Lomonaco as saying, ``The report was prepared during a recent unannounced inspection of the Bow Creek San Trap Restaurant & Bar dated (April 9, 1997) noting more than 80 health code violations on that one visit.

``Have any of you had the opportunity to bring your families to eat at this facility? Would you want to?''

Winston G. Snider, an attorney representing the bar, said in his complaint that the allegations are not true and were made ``with malicious intent to injure and defame the defendant's business reputation.''

Snider said the inspection of the bar was not ``unannounced.'' They are scheduled in advance, he said, and there was no inspection recorded on April 9. Not one health department inspection report found 80 violations in one day, according to health department records.

In a telephone interview, Snider said, ``(Lomonaco) made false accusations against my client, definitely. It hurt his business reputation by doing that. I've eaten there, and I think the food is fine.''

A check of Health Department records found 92 violations in the health code dating back to Dec. 18, 1995. None indicated the food was unsafe to eat or the presence of serious health problems.

Nearly all of the violations were for problems that might surprise someone not familiar with the health code. Some were for having the ice scoop on top of the ice-making machine, others were for having a refrigerator thermometer in the wrong location or having beer mugs placed on cloth towels, which retain moisture.

``I don't see anything (in the record) that would preclude people from eating there,'' said Frank J. Scanlon, environmental health manager for the Virginia Beach Department of Health.

Lomonaco said he prepared his remarks ahead of time and later, upon reviewing them, found a mistake, which he corrected.

He said the mistake was in alleging that the number of health code violations occurred on one day. He said they took place over a period of time. He sent the correction to Mayor Meyera E. Oberndorf's office.

``It was not my intent to mislead,'' he said. ``It was an oversight on my part.''

Deciding the limits of free speech has troubled courts since the signing of the Constitution. Conrad M. Shumadine, a first amendment lawyer with Willcox & Savage, said the legal issues can become complex.

``If the man lied about the fact of an inspection, if it did not occur and he fabricated it, then it would be plainly actionable, but only if the person making the statement was careless,'' Shumadine said.

``I can't think of any information that would be worse for a restaurant,'' he said. ``If it turned out to be wrong and he thought it was correct, then he may have a right to say it.''

If the operation of a business has become a matter of public controversy, then it would be possible that it could be considered as ``a public figure'' and thus subject to criticism that can sometimes be harsh.

Over the years, the courts have recognized all-purpose public figures, people like Frank Sinatra, and involuntary public figures, those who are involved in controversies.

``If the company is not considered a public figure and the court determines that the restaurant is not a matter of public controversy, then the standard for defamation is carelessly made false statement of fact. That would be defamatory,'' Shumadine said.

``Determining who is a public figure and who is not has been compared by some courts to nailing a jellyfish on the wall. It's very difficult.'' KEYWORDS: LAWSUIT DEFAMATION SUIT VIRGINIA BEACH CITY

COUNCIL

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