On November 7, 2015, Will Isern of the Pensacola News Journal published a story, "Tower of Questions," that included some of the essential data briefed to the newspaper by Melanie Nichols and I. Isern also interviewed Gene Church, president of Divine Word Radio, Inc., the company which signed the General Lease Agreement with the City of Pensacola on August 24, 2012. Maren DeWeese of Maren's Blog has uncovered a letter sent by George Biggs to Gene Church that contradicts a key element of Church's interview with Will Isern.
Between the information revealed by Gene Church to Will Isern and a letter sent by George Biggs to Gene Church on February 2, 2015, we now have proof that Gene Church has engaged in and continues to engage in deceptive behaviors towards the Federal Communications Commission and the City, respectively, as well as the Pensacola News Journal.
MATERIAL MIS-REPRESENTATION TO THE FCC
On March 12, 2012, in a filing to the FCC by Gene Church, Church declared in Exhibit 12, a document the FCC considers to be a "material representation," that "The city recently approved zoning to permit replacing the WDWR 250 ft tower with a new 400 ft tower."
However, Will Isern asked city spokesman Vernon Stewart about Gene Church's sworn statement to the FCC regarding the alleged "approved zoning...[for] a new 400 ft tower." Isern wrote in his article, "On Friday, city spokesman Vernon Stewart confirmed that a variance was never issued."
Thus, Gene Church apparently made a false statement to the Federal Communications Commission. The City of Pensacola had not amended any of its ordinances governing a "new 400 ft tower" in a Conservation District where new communication towers were explicitly prohibited by City ordinances 12-2-44, 12-2-79, 12-12-2, and 12-1-6.
What we do know for certain is that on May 21, 2012, in a Committee of the Whole, Mayor Hayward recommended that the "City Council authorize the Mayor to lease the City-owned radio tower site within the Long Hollow stormwater basin to...Divine Word Radio, Inc...." and on May 24, 2012, the City Council unanimously approved that recommendation. However, the City Council would not bring the negotiated General Lease Agreement into force until August 24, 2012, several months after the devastating flood of 2012.
What the City Council may not have known at the time is that since March 20, 2012, and most likely before that date, that Bill Reynolds, then City Administrator, and Stephanie Tillery, a staff attorney in the City Attorney's office had been reviewing drafts of the lease with Gene Church. On May 3, 2012, Reynolds emailed Church to inform him that "No issues remain" and the boundary survey that the Mayor had authorized in anticipation of selling the City's land to Church was attached.
So, if Gene Church had been led to believe that the "city recently approved zoning to permit replacing the WDWR 250 ft tower with a new 400 ft tower," the most likely people to have given Church that impression were Bill Reynolds and Stephanie Tillery, and possible others involved in the negotiations.
DECEPTION TO THE PENSACOLA NEWS JOURNAL AND CITY
Regarding the excavation, framing, and pouring of four steel-reinforced concrete foundations--the base foundation directly under the tower and three anchors holding the guy wires--and erecting the tower to 186-feet by September 12, 2014, Gene Church told Will Isern in an interview published in the "Tower of Questions" article that "'The subcontractor was the one at fault for that....He was a subcontractor under Biggs-Green and we were unaware of it until the very beginning of this year. It was an incredibly costly mistake for us."
This is a bald-faced lie and what Church is apparently counting on is that no one will actually call him on it.
Maren DeWeese has uncovered a letter sent by George Biggs to Gene Church on February 2, 2015. Biggs informed Church, "It has come to our attention that you have chosen to start erection of the radio tower we have under permit for you without our supervision as contracted." Biggs continued, "We have no responsibility whatsoever related to the work in place, costs associated with rectifying the situation or any other liability." In fact, George Biggs told me in a phone interview on September 16, 2015, that he did no work for Church and had not been paid by Church.
Biggs sent a similar email to Bill Weeks, head of Inspection Services, on the evening of February 2, 2015, and, on February 3, 2015, Weeks sent a letter to Gene Church ordering him to "stop all work on the project."
We know for fact certain that on September 12, 2014, Gene Church sent a notification via email to the Federal Aviation Authority stating, "As to the project, we have already begun construction, having completed all foundations and footers, and erected tower to 186 feet. We anticipate completing the project in the next few weeks."
How can Gene Church have been "unaware of it until the very beginning of this year" and also having told the FAA in September 2014 that the tower was already "186 feet" and we have "completed all foundations and footers"?
The only way that can happen is if you have King Kong-sized cojones and are willing to lie to a newspaper to save the sale of all your radio stations for $1.3 million. Unfortunately, when your FAA construction permit is hanging in the balance, you cannot lie to the FAA.
Now, in the world of contracting, it is standard practice that the contractor is paid by the contractee as work is completed according to a set schedule. As the contractor is paid, the subcontractors are paid.
For all the "foundations and footers" to have been excavated, framed, and poured, and the tower erected to "186 feet" by September 12, 2014, and for George Biggs not to have done the work and not to have been paid by Gene Church means that Gene Church directly hired and paid an unknown contractor to do all of this work requiring expertise in erecting radio towers.
The City has still not disclosed who the contractor was in 2014 that installed the four foundations and erected the tower to 186 feet by September 12, 2014.
It could not have happened in the way Church explained to the Pensacola News Journal. But, that is the same explanation Gene Church gave to Michael Ritz, the architect and secretary of ACC Associates, the in-house design entity within the Ritz family's Gulf Coast Building Contractors firm, where he is also the secretary, in the March 18, 2015, sworn deposition filed with the Escambia County Clerk of the Court.
In the sworn deposition, Gene Church essentially claimed he had paid no one for the magical erection of his 400-foot tower.
Keep in mind that despite the February 3, 2015, Stop-Work-Order from Bill Weeks, five days before (March 13, 2015) Gene Church filed his sworn deposition (March 18, 2015) claiming that all work on the radio tower had ceased on January 29, 2015, that Gene Church filed a form with the FAA stating that the his brand new radio tower was at its "greatest height" of 400 foot.
UPDATE and CORRECTION (11/9/2015//2228H):
After publication of this article, Rick's Blog ran an article, "Attorney for Biggs Construction sends copy of letter to council," explaining that Biggs Construction Company (not Biggs-Green) had served as the overall contractor acquiring all permits and supervising and coordinating the other subcontractors. Gene Church was responsible for hiring the specialized company to erect the tower.
According to the letter from George Biggs (released by his lawyer Bruce Partington), from March 2014 to January 2015, Biggs Construction was unaware that any work had been performed on the radio tower. Requests from Biggs to Church for a status update were either ignored or Biggs was told by Church that he was not ready to start.
By February 2, 2015, Biggs finally was informed by Church, according to the letter to the Pensacola City Council, "that Mr. Church first told us that the work was nearly complete, which was very disturbing since the permit had been obtained with our license." That day they informed the City and Church that Biggs Construction was pulling out of the project.
According to the Biggs's letter, "As you can see, the statements by Mr. Church reported by the Pensacola News Journal regarding the party performing the work being a 'subcontractor' of ours and that he was 'unaware' of it is entirely false."
Again, it is important to note that contrary to Church's communications with Biggs that they were not ready to start the project in 2014, in fact, Church was under pressure from the FAA to complete the tower. Indeed, Church had to request an extension because his FAA permit was going to expire on September 8, 2014.
And, Omni Broadcasting, which was located on Church's old 250-foot tower needed to request repeated extensions from the FCC because Church's new tower was not yet completed. See Omni's Special Temporary Authority narratives and/or FCC extensions of June 24, 2013, December 19, 2013, January 6, 2014, July 1, 2014, September 11, 2014, Omni request October 2, 2014, and FCC response October 2, 2014.
The main difficulty with Omni Broadcasting's October 2, 2014 request for a 180-day extension is that on September 24, 2014, Gene Church destroyed his 250-foot tower, leaving only 120-feet standing. Therefore, it is impossible for Omni Broadcasting to have been broadcasting from the 250-foot tower at 199-feet.
Gene Church may or may not have a legitimate legal beef with the City of Pensacola. The City authorized construction of a new "radio broadcast facility" including a radio tower in a Conservation District where a new communications tower was prohibited by law. City ordinances would have also blocked Gene Church from enlarging or expanding his pre-exisiting 250-foot radio tower.
Nevertheless, Gene Church has deceived the City of Pensacola, the Pensacola News Journal, and the residents of Pensacola.
He has certainly submitted a false "material representation" to the Federal Communications Commission. The City of Pensacola in 2012 had not "approved zoning to permit replacing the WDWR 250 ft tower with a new 400 ft tower." That has been flatly contradicted by the City's public information officer statement to the Pensacola News Journal.
Moreover, it is factually not true that Gene Church had not known "until the very beginning of this year" that the foundations and tower had been erected without his knowledge. In September 2014, Church had informed the FAA that Divine Word Radio had "completed all foundations and footers, and erected tower to 186 feet."
Gene Church can say anything he wants. The documentary evidence, especially evidence he personally submitted to the FAA earlier, contradicts his current statements. He is not a credible person regarding the construction of the radio tower. The City Council should demand, as is their right under the General Lease Agreement, to see all financial records from his personal and business banking accounts regarding the illegal and unsafe construction of the 400-foot radio tower inside Long Hollow Stormwater Pond.