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HomeMy Public PortalAboutMotion Sanctions/Pre-Trial Sched. Order/Complaint to Enforce Public Recs. ActIN THE CIRCUIT COURT OF THE 15`h JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA MARTIN E. O'BOYLE, Plaintiff, V. THE TOWN OF GULF STREAM, Defendant. CASE NO.: 2014 -CA -004474 -AG MOTION FOR SANCTIONS PURSUANT TO SECTION 57.105, FLORIDA STATUTES (Served but not filed) Plaintiff Martin E. O'Boyle moves for sanctions pursuant to Section 57.105, Florida Statutes. As set forth in the motion, Defendant and their counsel knew or should have known that the claims set forth in this motion were not supported by the material facts necessary to establish the claims or would not be supported by the application of existing law to the material facts. BACKGROUND 1. On May 30, 2014, Defendant filed a motion to "disqualify The O'Boyle Law Firm, P.C., Inc. and, in the alternative for an evidentiary hearing" through its counsel. 2. Defendants assert that The O'Boyle Law Firm, P.C., Inc. is not active in Pennsylvania therefore no bona fide interstate practice can exist as a matter of law. LAW OFFICES JOHNSON, ANSELMO, MURDOCH, BuRKS, PIPER & HOCHMAN, P.A. DAMIAN H. ALBERT, PA SCOTT D. ALEXANDER, PA. CHRISTOPHER AMBROSIO MICHAEL T. BURKE') HUDSON C. GILL JEFFREY L HOCHMAN, PA. E. BRUCE JOHNSON William Thrasher Town Manager Town of Gulf Stream 100 Sea Road Gulf Stream, FL 33483 A PROFESSIONAL ASSOCIATION 245E EAST SUNRISE BOULEVARD SUITE 10DO FORT LAUDERDALE. FL 33304 1954) 467-0100 Browad (� BiS2WO Dade (587)6404448 WPB TELECOPIER (554) 461-2444 June 12, 2014 Re: Martin O'Boyle v. Town of Gulf Stream Claim No.: GCM4077401 Our File No.: 00640%34107 Case No:: 136ev-80317=DMM Dear Mr. Thrasher: VIA EMAIL W. HAMPTON JOHNSON, IV J. MARCOS MARTINEZ ROBERT E,MURDOCH MICHAEL R. PIPER' DAVID M. SCHWEIGER PA CHRISTOPHER L SMITH CHRISTOPHER J. STEARNS. PA RONALD D P. ANSELMO . BURLF. GEORGE Enclosed please find a copy of the Pretrial Order issued by Magistrate Judge Brannon in the above -referenced matter. The enclosure provides an outline of the proposed scheduling of deadlines prior to the trial in this matter now set on December 1, 2014. Also enclosed are documents relating to special procedures which are available in this matter, including the availability of trial before a magistrate judge (rather than a federal district judge) and a consent to proposed videotaping ofthe proceedings. _ I would ask that you please review the enclosures and call me to discuss any questions that you may have. Very y yours, WFore ochman JLH/krne Enclosure cc: Chief Garrett Ward (w/encl.) Via Email Joanne M. O'Connor, Esq. (w/encl.) Via Email John C. Randolph, Esq. (w/encl.) Via Email Crosby Coleman (a/encl.) Via Email Jessica Sheets (w/encl.), Via Email Tina Brown (w/encl.) Via Email Case 9:14-cV-80317-DMM Document 37 Entered ori FLSD Docket 06/09/201.4 Page 1 of 9 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. 14-80317-Civ-MiddlebrooksBrannon MARTIN E. O'BOYLE, Plaintiff(s), VS. THE TOWN OF GULF STREAM, et al, Defendant(s). PRETRIAL SCHEDULING ORDER THIS CAUSE is before the Court following a Scheduling Conference that took place before the undersigned US. Magistrate Judge. In accordance with this Scheduling Conference and pursuant to S.D. Fla. L: R. 16.1(b), the Court ORDERS the following: 1. Trial: This case is presently set for trial before U.S. District Judge Middlebrooks during the two-week trial period commencing December 1, 2014. This Court has advised the V/ parties of the opportunity to consent to a specially set trial before a U.S. Magistrate Judge pursuant to 28 U.S.C. § 636(c). A fully executed consent form should be BIed within 30 days 7� Q from this Order's date if the parties wish to consent to trial before a U.S. Magistrate Judge. 2. Pretrial Discovery and Conference: Pretrial discovery shall be conducted in accordance with S.D. Fla. L.R. 16.1 and 26.1, and the Federal Rules of Civil Procedure. No pretrial conference shall be held in this action, unless the parties so request or the Court determines, sua sponte, that a pretrial conference is necessary. Should a pretrial conference be set, the deadlines set forth in this Order shall remain unaltered. 1 Case 9:14-cv-80317-DMM Document 37 Entered on FLSD Docket 06/09/2014 Page 2 of 9 3. Pretrial Stipulation: Counsel must meet at least 45 days prior to the beginning of the trial calendar to confer on the preparation of a Joint Pretrial Stipulation. The Joint Pretrial Stipulation shall be filed by the date set forth below and shall conform to S.D. Fla. L.R.16.1(e). The Court will not accept unilateral pretrial stipulations, and will strike sua sponte any such submissions. Should any of the parties fail to cooperate in preparing the Joint Pretrial Stipulation, all other parties shall file a certification with the Court stating the circumstances. Upon receipt of such certification, the Court will issue an order requiring the non -cooperating party or parties to show cause why such party or parties (and their respective attorneys) should not be held in contempt for failure to comply with the Court's order. The pretrial disclosures and objections required under Fed. R. Civ. P. 26(a)(3) should be served, but not filed with the Clerk's Office, as the same information is required to be attached to the parties' Joint Pretrial Stipulation. 4. Cases Tried Before A Jury: In cases tried before a jury, at least ONE WEEK prior to the beginning of the trial calendar, the parties shall submit A SINGLE JOINT SET of proposed jury instructions and verdict form, though the parties need not agree on the proposed language of each instruction or question on the verdict form. Where the parties do agree on a proposed instruction or question, that instruction or question shall be set forth in Times New Roman 14 point typeface. Instructions and questions proposed only by the plaintiff(s) to which the defendant(s) object shall be italicized: Instructions and questions proposed only by defendant(s) to which plaintiff(s) object shall be bold-faced. Each jury instruction shall be typed on a separate page and, except for Eleventh Circuit Pattern instructions clearly identified as such, must be supported by citations to authority. In preparing the requested jury instructions, the parties shall use as a guide the Pattern Jury Instructions for civil cases approved by the Eleventh 2 Case 9:14-cv-80317-DMM Document 37 Entered on FLSD Docket 06/09/2014 Page 3 of 9 Circuit, including the directions to counsel contained therein. A copy of the proposed jury instructions and verdict form shall be sent in Word or WordPerfect format to: Middlebmoks@flsd.uscotuts.gov. 5. Cases Tried Before The Court: In cases tried before the Court, at least ONE WEEK prior to the beginning of the trial calendar, a copy of the proposed Findings of Fact and Conclusions of law shall be sent in Word or WordPerfect format to: Middlebrooks@flsd.uscourts.gov. Proposed Conclusions of Law must be supported by citations to authority. 6. Exhibits: All exhibits must be pre -marked. A typewritten exhibit list setting forth the number, or letter, and description of each exhibit must be submifted at the time of trial. The parties shall submit said exhibit list on Forst AO 187, which is available from the Clerk's office. 7. Motions to Continue Trial: A Motion to Continue Trial shall not stay the requirement for the filing of a Pretrial Stipulation and, unless an emergency situation arises, such Motion will not be considered unless it is fled at least 20 days before the date on which the trial calendar is scheduled to commence. 8. Pretrial Motions: Any party filing a pretrial motion shall submit a proposed order granting the motion. 9. Non-compliance With This Order. Non-compliance with any provision of this Order may subject the offending party to sanctions or dismissal. It is the duty of all counsel to enforce the timetable set forth herein in order to ensure an expeditious resolution of this cause. 3 Case 9:14-cv-80317-DMM Docurhent 37 Entered on FLSD Docket 06/09/2014 Page 4 of 9 10. Pretrial Schedule: The parties shall adhere to the following schedule, which shall not be modified absent compelling circumstances. Any motions to modify this schedule shall be directed to the attention of U.S. District Judge Donald M. Middlebrooks. June 13, 2014 Joinder of Additional Parties and Amend Pleadings. 4 June 30, 2014 Plaintiff shall provide opposing counsel with a written list with the names and addresses of all expert witnesses intended to be called at trial and only those expert witnesses listed shall be permitted to testify. Within the 14 day period following this disclosure (on or before July 14, 2014), Plaintiff shall make its experts available for deposition by Defendant. The experts' depositions may be conducted without further Court order. V/ July 14, 2014 Defendant shall provide opposing counsel with a written list with the names and addresses of all exert witnesses intended to be called at trial and only those expert witnesses listed shall be permitted to testify. Within the 14 day period following this disclosure (on or before July 28, 2014), the defendant shall make its experts available for deposition by the plaintiff. The experts' depositions may be conducted without further Court order. Note: The above provisions pertaining to evert witnesses do not apply to treating physicians, psychologists or other health providers. July 28, 2014 Parties shall furnish opposing counsel with a written list containing / v the names and addresses of all witnesses intended to be called at trial and only those witnesses listed shall be permitted to testify. August 18, 2014 Parties shall finnish opposing counsel with expert reports or summaries of their expert witnesses' anticipated testimony in accgrdance with Fed. R Civ. P. 26(a)(2). / August 25, 2014 All discovery shall be completed. ✓/� September 8, 2014 All Pretrial Motions and Memoranda of Law shall be filed / November 3, 2014 Joint Pretrial Stipulation shall be filed. Designations of deposition testimony shall be made. 4 Case 9:14-cv-80317-DMM Document 37 Eriteted on FLSD Docket 06/09/2014 Page 5 of 9 November 17, 2014 Objections to designations of deposition testimony shall be filed. 1/ Late designations shall not be admissible absent exigent circumstances. November 24, 2014 Jury Instructions or Proposed Findings of Fact and Conclusions of Law shall be filed. i November 26; 2014 Status Conference/Calendar Call. (�. / i 11. Settlement: If the case is settled, counsel shall promptly inform the Court by calling the chambers of U.S. District Judge Donald M. Middlebrooks at (561) 514-3720 and, within 10 days of notification of settlement to the Court, submit an appropriate Motion and proposed order for dismissal, pursuant to Federal Rule of Civil Procedure 41(a). The parties shall attend all hearings and abide by all time requirements unless and until an order of dismissal is filed. 12. Courtroom Cameras Pilot Project: Pursuant to Administrative Order 2012-001, authorizing the Carreras in the Courtroom Pilot Project, the Court hereby notifies the parties that this case is eligible for video recording. The Court will separately issue a written notice advising the parties of the procedure by which the project will be implemented. Upon receipt of this notice, the parties shall have 30 days within which to opt -out of the project. DONE AND ORDERED in Chambers at West Palm Beach in the Southern District of Florida; this 9th day of June, 2014. DAVE LEE BRANNON U.S. MAGISTRATE JUDGE 5 . Case 9:14•cv-80317-DMM Document 37 Entered on FLSD Docket 06/09/2014 Page 6 of 9 APPENDIX A UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA NOTICE OF RIGHT TO CONSENT TO DISPOSITION OF A CIVIL CASE BY A U.S. MAGISTRATE JUDGE Counsel shall review this notice with their client(s) before executing their notice of consent to trial before a U.S. Magistrate Judge. Under 28 U.S.C. §636(c), a U.S. Magistrate Judge may, upon the consent of all the parties in a civil case, conduct all proceedings, including a trial and all post judgment proceedings. A consent form is attached and is also available from the Clerk of the Court. You have a right to trial by a U.S. District Judge. Your decision to consent to the referral of your case to a U.S. Magistrate Judge for disposition is entirely voluntary on your part; your lawyer cannot make this decision for you. You may, without adverse substantive consequences, withhold your consent, but this will prevent the Court's jurisdiction from being exercised by a Magistrate Judge. If any party withholds consent, the identity of the parties consenting or withholding consent will not be communicated to any Magistrate Judge or to the District Judge to whom the case has been assigned. Parties cannot withdraw their consent once given, although a District Judge may vacate a referral upon a showing of extraordinary circumstances by a party. An appeal from a judgment entered by a Magistrate Judge shall be taken directly to the U.S. Court of Appeals for this judicial circuit in the same manner as an appeal from any other judgment of this District Court E . Case 9:14-cv-80317-DMM Document 37 Entered on FLSD Docket 06/09/2014 Page 7 of 9 UNITED STATES DISTRICT OF FLORIDA SOUTHERN DISTRICT OF FLORIDA Case No. [ )-Civ-MTddlebrooks/Brannon Plaintiff(s), 1, Defendant(s). NOTICE OF CONSENT TO EXERCISE OF JURISDICTION BY A U.S. MAGISTRATE JUDGE In accordance with the provisions of 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73, the parties in this case consent to have a U.S. Magistrate Judge conduct any and all proceedings in this case,. the Parties consent to the exercise of jurisdiction by the Magistrate Judge over all further proceedings in this case, including trial and all post judgment proceedings. Party Signatures Date 7 . . Case 9:14-cv-80317-DMM Document 37 Entered on FLSD Docket 06/09/2014 Page 6 of 9 [NAME], Plaintiff V. [NAME], Defendant APPENDIX B IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN (DISTRICT OF FLORIDA Case No: [PLAINTIFF'S] [DEFENDANT'S] RESPONSE TO REQUEST FOR RECORDING As discussed in the Scheduling Conference before Judge Dave Lee Brannon, held on this case has been selected for inclusion within the Cameras in Court . Pilot Project As such, it is the Court's intent to videotape all evidentiary hearings and/or trial for this case. The Guidelines for the Cameras Pilot Project is available at httt)://www.fiscLuscourts.govPpage id=5838. In response to the request, the LPlaintiff- if more than one specify name] (Defendant -if more than one specify name] [ ] consent[s] to the recording of all evidentiary hearings and the complete trial of this matter, [ ] consent[s] to the recording of (1) some, but not all, evidentiary hearings, or (2) some, but not all, of the complete trial of this matter: Explain the specific evidentiary hearings or portions of the trial for which you do not consent to recording, and your reasons: Part of Proceeding/Trial Reason Not to Video Record Case 9:14-cv-80317-DMM Document 87 Entered on FLSD Docket 05/09/2014 Page 9 of 9 [ ] I do not consent to the recording of any hearing and/or trial of this matter. Explain your reasons for not consenting: I submit and sign this form on behalf of the party I represent and the witnesses I may call. Signature Name Position (e.g., attorney of record) Date All responses should be submitted via e-mail to the appropriate e-mail address for the presiding judge as follows. Include the case number in the subject line. (e.g., 11-12345 Required Response to Request for Recording): middlebmokscameraRflsd.uscourts.eov Case 9:14-cv-80317-DMM Document S8 Entered on FLSD Docket 06!09!2014 Page 1 of 4 UNTIED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. 14-80317-Civ-Middlebrooks/Brannon MARTIN E. O'BOYLE, Plaintiff(s), VS. THE TOWN OF GULF STREAM, et al., Oefendant(s). ORDER OF REFERRAL TO MEDIATION THIS CAUSE is before the Court for the purpose of setting pre-trial deadlines. Trial having been set in this matter, pursuant to Federal Rule of Civil Procedure 16 and Local Rule 16.2, the Court ORDERS the following: 1. All parties must complete mediation or a settlement conference at least 60 days before the scheduled trial date. SETTLEMENT CONFERENCE 2. The parties may request a settlement conference before the undersigned Magistrate Judge in lieu of mediation with a certified mediator. Such conference will satisfy the requirement of court-ordered mediation, assuming good faith participation by the parties. To make the request, a designated party should 2 contact Chambers (561-803-3470) within 14 days of this Order with proposed conference dates. The undersigned will thereafter issue an order setting forth the date, time, place, and procedures for the settlement conference. 1 r Case 9:14-cv-80317-DMM Document 38 Entered on FLSD Docket 06/09/2014 Page 2 of 4 MEDIATION 3. Otherwise, Plaintiff's counsel, or another attorney agreed upon by all counsel of record and any unrepresented parties, shall schedule a mediation conference. The parties are encouraged to avail themselves of the services of any mediator on the List of Certified Mediators, maintained in the office of the Clerk of the Court, but may select any other mediator. The parties shall agree upon a mediator within 14 days of this Order. If there is no agreement, lead counsel shall promptly file a Request for Clerk to Appoint Mediator. The Clerk of the Court shall then designate, on a blind rotation basis, a mediator from the List of Certified Mediators. The following procedures shall apply for mediation. 4. A place, date, and time for mediation convenient to the mediator, counsel of record, and unrepresented parties shall be established. If the parties cannot agree to a place, date, and time for the mediation, they may move the Court for an order dictating the place, date, and time. 5. The appearance of counsel and each party or representatives of each party with full authority to enter into a full and complete compromise and settlement is mandatory. If insurance is involved; an adjuster with authority to settle up to the Policy limits or the most recent demand, whichever is lower; shall attend. 6. All proceedings of the mediation shall be confidential and privileged. 7. At least 14 days prior to the mediation date, each party shall submit to the mediator a brief, confidential case summary, identifying issues to be resolved. 8. The Court may impose sanctions against parties and/or counsel who do not comply with the attendance or settlement authority requirements herein or who K Case 9:14=cV-80317-DMM Document 38 Entered on FLSD Docket 06/09/2014 Page 3 of 4 otherwise violate this Order. The mediator shall report non-attendance and may recommend imposition of sanctions by the Court for non-attendance. 9. The mediator shall be compensated in accordance with the standing order of the Court entered under Local Rule 16.2(b)(6), or on such basis as may be agreed to in writing by the parties and the agreed-upon mediator. The mediation cost shall be shared equally by the parties unless otherwise ordered by the Court. All payments shall be remitted to the mediator within 45 days of the date of the bill. Notice to the mediator of cancellation or settlement prior to the scheduled mediation conference must be given at least 3 full business days in advance. Failure to do so will result in imposition of a fee for 2 hours. 10. If a full or partial settlement is reached in this case, counsel shall promptly notify the Court of the settlement in accordance with Local Rule 16.2(f), by filing a notice of settlement signed by counsel of record within 14 days of the mediation conference. Thereafter, the parties shall forthwith submit an appropriate pleading concluding the case, in whole or in part. 11. Within 7 days after the mediation conference, the mediator shall file a Mediation Report stating if (1) all required parties were present, and (2) the case settled (in full or in part) or not, or if the mediation was adjourned. 12. Post -Mediation Settleinent Conference: If the parties elect to proceed to mediation but no complete settlement is reached, they may move for a settlement conference before the undersigned later in the proceedings. 3 Case 9:14-cv-80317-DMM Document 38 Entered on FLSD Docket 06/09/2014 Page 4 of 4 SANCTIONS FOR NON-COMPLIANCE 13. If mediation or a settlement conference is not completed, the case may be stricken from the trial calendar, and other sanctions may be imposed DONE AND ORDERED in Chambers at West Palm Beach in the Southern District of Florida, this 9th day of June, 2014. 4 DAVE LEE BRANNON O.S. MAGISTRATE JUDGE **** CASE NUMBER 2014CA000834 DIVISION: AH **** Filing # 9447796 Electronically Filed 01/22/2014 07:06:52 PM MARTIN E. O'BOYLE, Plaintiff, V. TOWN OF GULF STREAM, Defendant. THE STATE OF FLORIDA: To Each Sheriff of the State: p r or �••• r L - qa V (yl IN THE CIRUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT, INCj.)54r j Z g q AND FOR PALM BEACH COUNTY, FLORIDA Case No.: SUMMONS YOU ARE COMMANDED to serve this summons and a copy of the complaint in this law -suit on defendant: JAN 23 2014 Dated: e�rk of the Circuit Court c r GSA C% o ' iputyClerk Josie Lucce TOWN OF GULF STREAM 100 Sea Road Gulf Stream, FL 33483 SHARON R. BOCK Clerk & Comptroller P.O. Box 4667 West Palm Beach, Florida 33402-4667 IMPORTANT lawsuit has been filed against you. You have 20 calendar days after this summons is ' CfM on you to file a written response to the attached complaint with the clerk of this court. A phone call will not protect you. Your written response, including the case number given above and the names of the parties, must be filed if you want the court to hear your side of the case. If 1 of 3 you do not file your response on time, you may lose the case, and your wages, money, and property may thereafter be taken without further warning from the court. There are other legal requirements. You may want to call an attorney right away. If you do not know an attorney, you may call an attorney referral service or a legal aid office (listed in the phone book). If you choose to file a written response yourself, at the same time you file your written response to the court you must also mail or take a copy of your written response to the "Plaintiff/Plaintiffs Attorney" named below. EMPORTANTE Usted ha sido demandado legalmente. Tiene 20 dias, contados a partir del recibo de esta notificacion, para contester In demanda adjunta, por escrito, y presentarla ante este tribunal. Una llamada telefoncia no to protegera. Si usted desea que el tribunal considere su defensa, debe presentar an respuesta por escrito, incluyendo el numero del caro y los nombres de ]as partes interesadas. Si usted no contesta la demanda a tiempo, pudiese perder el caso y podria ser despojado de sus ingresos y propiedades, o privado de sus derechos, sin previo aviso del tribunal. Existen otros requisitos legales. Si to desea, puede usted consultar a un abogado, puede Ilamar a una de las oficinas de asistencia legal que aparecen en In guia telefonica. Si desea responder a la demanda por su cuenta, al mismo tiempo en que presents su respuesta ante el tribunal, debera usted enviar por correo o entregar una copia de su respuesta a la persona denominada abajo como "Plaintiff/Plaintiffs Attorney" (Demandante o Abogado del Demandante). EWPORTANT Des Poursuites Judiciares oat ete entreprises contre vous. Vous avez 20 jours consecutifs a partir de In date de 1'assignation de cette citation pour deposer une reponse ecrite a In plainte ci- jointe aupres de ce tribunal. Un simple coup de telephone est insuffisant pour vous proteger. Vous etes oblige de deposer votre reponse ecrite, avec mention du numero de dossier ci-dessus et du nom des parties nommees ici, si vous souhaitez que le tribunal entende votre cause. Si vous ne deposez pas votre response ecrite dans le relai requis, vous resquez de perdre la cause ainsi que votre salaire, votre argent, et vos biens peuvent etre saisis par la suite, sans aucun preavis ulterieus du tribunal. H y a d'autres obligations juridiques et vous pouvez requerir les services immediats d'un avocat. Si vous ne connaissez pas d'avocat, vous pourriez telephoner a un service de reference d'avocats on a on bureau &assistance juridique (figurant a Pannuaire de telephones). Si vous choisissez de deposer vous-meme une reponse ecrite, it vous faudra egalement, en meme temps que cette formalite, faire parvenir on expedier une copie de votre reponse ecrite an "Plaintiff/Plaintiffs Attorney" (Plaignant on a son avocat) nomme ci-dessous. 2of3 The O'Boyle Law Firm P.C. Attorneys for Plaintiff 1286 West Newport Center Drive Deerfield Beach, FL 33442 Telephone: (954) 574-6885 Facsimile: (954) 360-0807 Email: rwittner(@,oboylelawfirm.com By: /s/ Ryan L. Witmer Ryan L. Witmer, Esq. Florida Bar #0107563 3 of 3 Filing # 9447796 Electronically Filed 01/22/2014 07:06:52 PM IN THE CIRCUIT COURT OF THE 15'x' JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA 18VRV1►1"tali IOWA 14 Martin E. O'Boyle, V. TOWN OF GULF STREAM, Defendant. CASE NO.: VERIFIED COMPLAINT TO ENFORCE FLORIDA'S PUBLIC RECORDS ACT AND FOR DECLARATORY, INJUNCTIVE AND MONETARY RELIEF The Plaintiff, Martin E. O'Boyle, ("O'Boyle"), by and through the undersigned counsel, hereby sues the Town of Gulf Stream, ("Defendant"), and as grounds therefore alleges the following: 1. This action concerns the Defendant's violation of Martin E. O'Boyle's civil rights pursuant to Article I, Section 24 of the Florida Constitution and Chapter 119, Florida Statutes, (the "Public Records Act"). 2. This action seeks declaratory, injunctive, and monetary relief. 3. Specifically, Martin E. O'Boyle seeks an order declaring the Defendant to be in breach of its constitutionals and statutory2 duty to permit access to public records, and 'Note Article 1 Section 24, Fla. Const Every person has the right to inspect or copy any public record made or received in connection with the official business of any public body, officer, or employee of the state, or persons acting on their behalf, except with respect to records exempted pursuant to this section or specifically made confidential by this Constitution. This section specifically includes the legislative, executive, and judicial branches of government and each agency or department created thereunder, counties, municipalities, and districts; and each constitutional officer, board, and commission, or entity created pursuant to law or this Constitution. 'Note § 119.07(i)(a), Fla. Stat 1 of [10] compelling the Defendant to provide access to the requested public records, enjoining the Defendant from denying access to public records, and awarding Martin E. O'Boyle attorney's fees and costs. Additionally, Martin E. O'Boyle requests this matter be expedited pursuant to Section 119.1 1(1), Florida Statutess. Jurisdiction and Venue 4. This Court has subject matter jurisdiction pursuant to Article V, Section 5(b) of the Florida Constitution, and Section 119.11, Florida Statutes. 5. This Court has personal jurisdiction over the Defendant, because the Defendant is a public agency in Palm Beach County. 6. The causes of action in the instant case accrued in Palm Beach County; therefore, this Court is the appropriate venue for the vindication of Martin E. O'Boyle's civil rights. The Parties 7. Martin E. O'Boyle is a Florida citizen who resides in Palm Beach County. 8. Martin E. O'Boyle is a "person" as that tern is used in the Public Records Act. See § 119.07(1)(a), Fla. Stat a and § 1.01(3), Fla. Stat. ("The word "person" includes individuals, children, firms, associations, joint adventures, partnerships, estates, trusts, business trusts, syndicates, fiduciaries, corporations, and all other groups or combinations.") Every person who has custody of a public record shall permit the record to be inspected and copied by any person desiring to do so, at any reasonable time, under reasonable conditions, and under supervision by the custodian of the public records. 'Note § 119.11(1), Fla. Stat. Whenever an action is filed to enforce the provisions of this chapter, the court shall set an immediate hearing, giving the case priority over other pending cases. 4 See Footnote "T'. 2of[10] 9. The Defendant is an "agency" pursuant to Section 119.011(2), Florida Statutes.5 10. The Defendant has a duty to permit the inspection, copying, and photography of Defendant's public records by anv person desiring to do so, at a reasonable time, under reasonable conditions, and for reasonable costs6. (Emphasis added). See § 119.07, Fla. Stat.; Art. I, § 24, Fla. Const. Florida's Public Records Act 11. Florida's Public Records Act implements a right guaranteed to members of the public under the Florida Constitution and it therefore promotes "a state interest of the highest order." See NCAA v. Associated Press, 18 So. 3d 1201, 1212 (1st DCA 2009)7. s Note § 119.011(2), Fla. Stat "Agency" means any state, county, district, authority, or municipal officer, department, division, board, bureau, commission, or other separate unit of government created or established by law including, for the purposes of this chapter, the Commission on Ethics, the Public Service Commission, and the Office of Public Counsel, and any other public or private agency, person, partnership, corporation, or business entity acting on behalf of any public agency. 6 Note Govemment-in-The-Sunshine-Manual 2012 Edition page 144. The tern "reasonable conditions" as used in s. 119.07(1)(a), F.S., "refers not to conditions which must be fulfilled before review is permitted but to reasonable regulations that would permit the custodian of records to protect them from alteration, damage, or destruction and also to ensure that the person reviewing the records is not subjected to physical constraints designed to preclude review." Wail v. Florida Power & Light Company, 372 So. 2d 420, 425 (Fla. 1979). See also State ex rel. Davis v. Alchfillan, 38 So. 666 (Fla. 1905); and Tribune Company v. Cannellq 458 So. 2d 1075,1078 (Fla. 1984), appeal dismissed sub nom., DePerle v. Tribune Company, 105 S.Ct. 2315 (1985) (the sole purpose of custodial supervision is to protect the records from alteration, damage, or destruction). Accordingly, the "reasonable conditions" do not include a rule or condition of inspection which operates to restrict or circumvent a person's right of access. AGO 75-50. "The courts of this state have invalidated measures which seek to impose any additional burden on those seeking to exercise their rights to obtain records" under Ch. 119, F.S. Inf. Op. to Cook, May 27, 2011. And see Slate v. Webb, 786 So. 2d 602 (Fla. 1 st DCA 200 1) (requirement that persons with custody of public records allow records to he examined "at any reasonable time, under reasonable conditions" is not unconstitutional as applied to public records custodian who was dilatory in responding to public records requests). 'Note NCAA v. Associated Press, 18 So. 3d 1201, 1212 (1st DCA 2009) We are not persuaded that the Public Records law has an indirect effect on interstate commerce, but even if some effect had been established, we could not say that the law violates the dormant Commerce Clause. The Public Records law implements a right guaranteed to members of the public under the Florida Constitution and it therefore promotes a state interest of the highest order. The negligible impact the law 3 of [I0] 12. The right of access to public records applies to "any public body, officer, or employee of the state, or persons acting on their behalf...." Art. I, § 24, Fla. Const.; see also § 1] 9.01](2), Fla. State 13. Under the Public Records Act, "[e]very person who has custody of a public record shall permit the record to be inspected and copied by any person desiring to do so, at any reasonable time, under reasonable conditions, and under supervision by the custodian of the public records." See § 119.07(1)(a), Fla. Stat.e 14. Under the Public Records Act, "[a]ny person shall have the right of access to public records for the purpose of making photographs of the record..." See § I I9.07(3)(a), Fla. Stat. 10 15. Defendant, as an agency and custodian of records, has an obligation to provide any non-exempt public records for inspection, copying and photography upon request. See § I I9.07(1)(a)tl, §I 19.07(3)(a)12, Fla. Stat.; Art. 1, § 24, Fla. Const.13 Factual Backeround 16. On January 21, 2014, Martin E. O'Boyle, submitted a public records request via e- mail to the Defendant. e might have on interstate commerce clearly does not outweigh the goal of ensuring open government. See Footnote "S'. 9 See Footnote "Y'. 1° Note § 119.07(3)(a), Fla_ Stat. Any person shall have the right of access to public records for the purpose of making photographs of the record while such record is in the possession, custody, and control of the custodian of public records. " See Footnote' 2 t'- See Footnote "10". 13 See Footnote "I". 4 of [101 17. Specifically, Martin E. O'Boyle sought to obtain: A copy of the sign in sheet on the desk in the front lobbv of the Gulf Stream Town Hall as it existed at 11:00 a.m. on January 21, 2014. (the "Request"). Said Request is attached hereto and specifically incorporated herein as Exhibit A. 18. On the same day of receipt of the Request — January 21, 2014 — Defendant's custodian of records sent a letter to Martin E. O'Boyle via e-mail, stating in relevant part: The Town of Gulf Stream has received your public records request dated January 21,20-14... Our Staff will review your request within the neat three business days, and we will promptly send you the appropriate response or an estimated cost to respond (the "Response"). Said Response is attached hereto and specifically incorporated herein as Exhibit B. General Allegations 19. The records being sought by Martin E. O'Boyle are public records pursuant to Section 119.011(12)11, Florida Statutes. 20. There is no statutory exemption that applies to the requested public records and the Defendant has cited none. 21. Violations of Section 119.07, Florida Statutes constitute an irreparable public injuryl-. "Note § 119.011(12), Fla. Stat. "Public records" means all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software, or other material, regardless of the physical form, characteristics, or means of transmission, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency. "Note Daniels v. Bryson, 548 So. 2d 679, 680 (Fla. 3d DCA 1989) 5 of [ 10] 22. Martin E. O'Boyle has a clear legal right to insist upon the performance of the Defendant's duty to permit inspection, copying and photographing of public records. 23. Section 119.11 (1), Florida Statutes requires this matter be set for an immediate hearing. to 24. All conditions precedent to this action have occurred or have been excused or waived. 25. The requested document is a public record that is readily accessible to Defendant. 26. Martin E. O'Boyle requested the responsive documents be provided in electronic form and provided an E -Mail address to whom the response was to be sent. 27. Defendant's actions with respect to the public records request discussed herein and in other public record requests made by Martin E. O'Boyle and other parties, demonstrate a pattern of noncompliance with the Public Records Act and also a likelihood of future violations such that injunctive relief is appropriate. Count I — Unlawful Withholding of Public Records: Unreasonable Delav 28. Plaintiff re -alleges and incorporates by reference paragraphs 1 through 27 as if fully alleged herein. 29. "The only delay permitted by the Act is the limited reasonable time allowed the custodian to retrieve the record and delete those portions of the record the custodian asserts are exempt." Tribune Co. v. Cannella, 458 So. 2d 1075, 1079 (Fla. 1984). 30. Damage, in the form of the deprivation of constitutional and statutory rights, occurs The impermissible withholding of documents otherwise required to be disclosed constitutes, in and of itself, irreparable injury to the person making the public records request. Since the purpose of Chapter 119 is to afford disclosure of information without delay to any member of the public making a request, nondisclosure prevents access to the information and is an injury not ordinarily compensable in damages. " See Footnote "J". 6 of [ l0] when the public agency does not produce the requested public records, and later production does not mollify this injury. Grapski v. City of Alachua, 31 So. 3d 193, 198 (Fla. 1 st DCA 2010). 31. The Defendant delayed for at least a full business day and part of another before providing any of the requested records to Plaintiff. 32. The above described delay is unreasonable in light of the clear and uncontestable accessibility of the document and constitutes a denial of access under the Public Records Act. Count H —Automatic Delav 33. Plaintiff re -alleges and incorporates by reference paragraphs 1 through 33 as if fully alleged herein. 34. In the Response, Defendant imposed an automatic delay by refusing to respond until the staff reviews the request "within three business days," even though the requested records were readily available to the Defendant. 17 35. This particular three-day automatic delay is not the first of its kind. It is part of a calculated pattern to lull the requestor into tolerating an unreasonable delay by the Defendant whereupon the Defendants will respond at their own convenience. Defendant has issued these letters to various persons prior to O'Boyle and has responded to such requests, whether records were ultimately produced or not, weeks later. 17 See Tribune Co. v. Cannella 458 So.2d 1075 (Fla., 1984) ("We hold that no automatic delay is permitted-.." and "an automatic delay, no matter how short, impermissibly interferes with the public's right, restrained only by the physical problems involved in retrieving the records and protecting them, to examine the records. The legislature has placed the books on the table; only it has the power to alter that situation."); See also Granslri v. City of Alachua 31 So.3d 193 (Fla. App., 2010); See also Rechler v. Town of Manalanan No. CL 94-2724 AD (Fla. 15th Cir. Ct. November 21, 1994), affirmed, 674 So. 2d 789, 790 (Fla. 4th DCA 1996), review denied, 684 So. 2d 1353 (Fla. 1996); See also State v. Webb 786 So.2d 602 (Fla. App., 2001). 7of[10] 36. O'Boyle had knowledge of Defendant's practice/custom and finds it unacceptable in light of his rights under the Florida Constitution as well as the rights of those who may come after. Attornevs' Fees 37. The Public Record Act provides that "[i]f a civil action is filed against an agency to enforce the provisions of this chapter and if the court determines that such agency unlawfully refused to permit a public record to be inspected or copied, the court shall assess and award, against the agency responsible, the reasonable costs of enforcement including reasonable attorneys' fees." See §119.12, Fla. Stat. Relief Requested WHEREFORE, Martin E. O'Boyle prays this Court: (a) Set an immediate hearing pursuant to Section 119.11, Florida Statutes;18 (b) Declare that the Defendant's failure to provide Martin E. O'Boyle with access to the requested public records was unconstitutional and unlawful under Article 1, Section 24 of the Florida Constitution 19 and the Public Records Act20 (c) Order the Defendants to allow the inspection, copying and photographing of the requested records (upon payment of the statutorily authorized fees); (d) Order the Defendants to provide a copy of the requested records in electronic form. (e) Enjoin the Defendant from denying access to records which are subject to the "See Footnote "3". 19 See Footnote "I". 2 0 See Footnote "2". 8 of [ 10] Public Records Act: 21 (f) Award Martin E. O'Boyle his reasonable attorney's fees, costs, and expenses incurred in this action, as provided in Section 119.12, Florida Statutes; and (g) Grant such further relief as the Court deems proper. Respectfully submitted, Dated: January 22, 2014 The O'Boyle Law Firm P.C. Attorneys for Plaintiff 1286 West Newport Center Drive Deerfield Beach, FL 33442 Telephone: (954) 574-6885 Facsimile: (954) 360-0807 rwitmeraoboylelawfirm com By: /s/ Ryan L. Witmer Ryan L. Witmer, Esq. Florida Bar #0107563 " Note govemment-In-The-Siinshine-Manual, page 172 Injunctive relief maybe available upon an appropriate showing for a violation of Ch. 119, F.S. See Daniels v. Bryson, 548 So. 2d 679 (Fla 3d DCA 1989) (injunctive relief appropriate where there is a demonstrated pattern of noncompliance with the Public Records Act, together with a showing of likelihood of future violations; mandamus would not be an adequate remedy since mandamus would not prevent future harm). Defendant's actions clearly demonstrate the high likelihood, in not the certainty, that such unlawful conduct will continue and the urgent need for injunctive relief from this court 9 of [10] **** CASE NUMBER 2014CA002728 DIVISION: AO **** Filing # 11024042 Electronically Filed 03/06/201411:19:17 AM IN THE CIRCUIT COURT OF THE 15' JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA MARTIN E. O'BOYLE, Plaintiff, M TIE TOWN OF GULF STREAM, Defendant. THE STATE OF FLORIDA To Each Sheriff of the State: CASE NO.: SUMMONS 31vm 63 - W 2014 C?3 W- (z84 6r@. YOU ARE COMMANDED to serve this summons and a copy of the complaint in this law- suit on defendant: Town of Gulf Stream 100 Sea Road Gulf Stream, FL 33483 Each defendant is required to serve written defenses to the complaint or petition on Giovani Mesa, Plaintiffs attorney, whose address is 1286 West Newport Center Drive, Deerfield Beach, Florida 33442, within 20 days after service of this summons on that defendant, exclusive of the day of service, and to file the original of the defenses with the clerk of this court either before service on plaintiffs attorney or immediately thereafter. If a defendant fails to do so, a default will be entered against that defendant for the relief demanded in the complaint or petition. DATED on March 2014 Clerk of the Court By: MAR 06 2014 Christina Beahan The O'Boyle Law Firm P.C. Attorneys for Plaintiff 1286 West Newport Center Drive Deerfield Beach, FL 33442 Telephone: (954) 574-6885 Facsimile: (954) 360-0807 omesa(a)oboylelawfirm.com By: /s/ Giovani Mesa Giovani Mesa, Esq. Florida Bar #0086798 SHARON R. BOCK Clerk & Comptroller P.O. Box 4667 West Palm Beach, Florida 33402-4667 IN THE CIRCUIT COURT OF THE 15`h JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA MARTIN E. O'BOYLE, V. CASE NO.: THE TOWN OF GULF STREAM, Defendant. COMPLAINT TO ENFORCE FLORIDA'S PUBLIC RECORDS ACT AND FOR DECLARATORY, INJUNCTIVE AND MONETARY RELIEF The Plaintiff, Martin E. O'Boyle, CTlaintiff1, by and through the undersigned counsel, hereby sues the Defendant, Town of Gulf Stream, ("Defendant"), and as grounds therefore alleges the following: 1. This action concerns the Defendant's violation of Plaintiffs civil rights pursuant to Article I, Section 24 of the Florida Constitution and Chapter 119, Florida Statutes, (the "Public Records Act"). 2. This action seeks declaratory, injunctive, and monetary relief. 3. Specifically, Plaintiff seeks an order declaring the Defendant to be in breach of its constitutional' and statutory2 duty to permit access to public records, and compelling the 'Note Article 1 Section 24, Fla. Const, Every person has the right to inspect or copy any public record made or received in connection with the official business of any public body, officer, or employee of the state, or persons acting on their behalf except with respect to records exempted pursuant to this section or specifically made confidential by this Constitution. This section specifically includes the legislative, executive, and judicial branches of government and each agency or department created thereunder, counties, municipalities, and districts; and each constitutional officer, board, and commission, or entity created pursuant to law or this Constitution. 2Note § I I9.07(1)(a), Fla. Stat. 1 of 8 Defendant to provide access to the requested public records, enjoining the Defendant from denying access to public records, and awarding Plaintiff attorney's fees and costs. Additionally, Plaintiff requests this matter be expedited pursuant to Section 119.1 1(1), Florida Statutes3. Jurisdiction and Venue 4. This Court has subject matter jurisdiction pursuant to Article V, Section 5(b) of the Florida Constitution, and Section 119.11, Florida Statutes. 5. This Court has personal jurisdiction over the Defendant, because the Defendant is a public agency in Palm Beach County. 6. The causes of action in the instant case accrued in Palm Beach County; therefore, this Court is the appropriate venue for the vindication of Plaintiffs civil rights. The Parties 7. Plaintiff is a Florida citizen who resides in Palm Beach County. 8. Plaintiff is a "person" as that term is used in the Public Records Act. See § 119.07(1)(a), Fla. Stat4 9. The Defendant is an "agency" pursuant to Section 119.011(2), Florida Statutes.5 Every person who has custody of a public record shall permit the record to be inspected and copied by any person desiring to do so, at any reasonable time, under reasonable conditions, and under supervision by the custodian of the public records. 'Note § 119.11 (1), Fla. Stat Whenever an action is filed to enforce the provisions of this chapter, the court shall set an immediate hearing, giving the case priority over other pending cases. 4 See Footnote "2". 'Note § 119.01 ] (2), Fla_ Stat. "Agency" means any state, county, district, authority, or municipal officer, department, division, board, bureau, commission, or other separate unit of government created or established by law including, for the purposes of this chapter, the Commission on Ethics, the Public Service Commission, and the Office of Public Counsel, and any other public or private agency, person, partnership, corporation, or business entity 2of8 10. The Defendant has a duty to permit the inspection, copying, and photography of Defendant's public records by any person desiring to do so, at a reasonable time, under reasonable conditions, and for reasonable costs. (Emphasis added). See § 119.07, Fla. Stat.; Art. I, § 24, Fla Const Florida's Public Records Act 11. Florida's Public Records Act implements a right guaranteed to members of the public under the Florida Constitution and it therefore promotes "a state interest of the highest order." See NCAA v. Associated Press, 18 So. 3d 1201, 1212 (1st DCA 2009)7. 12. The right of access to public records applies to "any public body, officer, or employee of the state, or persons acting on their behalf...." Art I, § 24, Fla. Const.; see also § 119.011(2), acting on behalf of any public agency. 'Note Govemment-In-The-Sunshine-Manual 2012 Edition page 144. The term "reasonable conditions" as used in s. 119.07(1)(a), F.S., "refers not to conditions which must be fulfilled before review is permitted but to reasonable regulations that would permit the custodian of records to protect them from alteration, damage, or destruction and also to ensure that the person reviewing the records is not subjected to physical constraints designed to preclude review." Wait v. Florida Power & Light Company, 372 So. 2d 420, 425 (Fla. 1979). See also State ex rel. Davis v. McMillan, 38 So. 666 (Fla. 1905); and Tribune Company v. Cannella, 458 So. 2d 1075, 1078 (Fla. 1984), appeal dismissed sub nom., DePerte v. Tribune Comparry, 105 S.Ct. 2315 (1985) (the sole purpose of custodial supervision is to protect the records from alteration, damage, or destruction). Accordingly, the "reasonable conditions" do not include a rule or condition of inspection which operates to restrict or circumvent a person's right of access. AGO 75-50. "The courts of this state have invalidated measures which seek to impose any additional burden on those seeking to exercise their rights to obtain records" under Ch. 119, F.S. Inf. Op. to Cook, May 27, 2011. And see State v. Webb, 786 So. 2d 602 (Fla Ist DCA 200 1) (requirement that persons with custody of public records allow records to be examined "at any reasonable time, under reasonable conditions" is not unconstitutional as applied to public records custodian who was dilatory in responding to public records requests). ' Note NCAA v. Associated Press 18 So. 3d 1201, 1212 (1st DCA 2009) We are not persuaded that the Public Records law has an indirect effect on interstate commerce, but even if some effect had been established, we could not say that the law violates the dormant Commerce Clause. The Public Records law implements a right guaranteed to members of the public under the Florida Constitution and it therefore promotes a state interest of the highest order. The negligible impact the law might have on interstate commerce clearly does not outweigh the goal of ensuring open government. 3 of 8 Fla. Stat 8 13. Under the Public Records Act, "[e]very person who has custody of a public record shall permit the record to be inspected and copied by any person desiring to do so, at any reasonable time, under reasonable conditions, and under supervision by the custodian of the public records." See § 119.07(1)(a), Fla. Stat.e 14. Under the Public Records Act, "[a]ny person shall have the right of access to public records for the purpose of making photographs of the record..." See § 119.07(3)(a), Fla. Stat.10 15. Defendant, as an agency and custodian of records, has an obligation to provide any non-exempt public records for inspection, copying and photography upon request. See § 119.07(1)(a)ll, §119.07(3)(a)12, Fla. Stat.; Art. I, § 24, Fla. Const.13 Factual Background 16. On January 21, 2014, Plaintiff submitted a public records request via e-mail to the Defendant. 17. Specifically, Plaintiff sought to obtain: Provide copies of all communications behveen any of the Town Commissioners, Marty Minor, Rita Taylor, and MIliant Thrasher where the name "O'Boyle,, or ,Boyle" is used therein during the period of January 1, 2013 through the date of this Request. See Footnote "S'. 'See Footnote "2". "Note § I I9.07(3)(a), Fla. Stat. Any person shall have the right of access to public records for the purpose of making photographs of the record while such record is in the possession, custody, and control of the custodian of public records. See Footnote "2". 13 See Footnote "10". u See Footnote "I". 4of8 (the "Request'. Said Request is attached hereto and specifically incorporated herein as Exhibit A. 18. On the same day after receipt of the Request, on January 24, 2014, Defendant's custodian of records sent a letter to Plaintiff via E -Mail, stating in relevant part: The Town of Gulf Stream has received your public records request dated January 21, 2014. If your request was received in writing, then thefnrst page of that request is attached to this cover letter. If your request was verbal, then the description ofyour public records request is set forth in the space below. Our staff will review your request within the next three business days, and we will promptly send you the appropriate response or an estimated cost to respond. (the "Initial Response"). Said Initial Response is attached hereto and specifically incorporated herein as Exhibit B. 19. On February 3, 2014, Defendant — without giving an update after three days as promised by their form automatic delay letter —partially responded (the "Final Response"). On information and belief, Plaintiff knows that response is partial: not complete. Said Final Response is attached hereto and specifically incorporated herein as Exhibit C. General Allegations 20. The records being sought by Plaintiff are public records pursuant to Section 119.011(12)14, Florida Statutes. 21. There is no statutory exemption that applies to the requested public records and the Defendant has cited none. 14 Note § 119.011(12), Fla. Stat. "Public records" means all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software, or other material, regardless of the physical form, characteristics, or means of transmission, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency. 5 of 8 22. Violations of Section 119.07, Florida Statutes constitute an irreparable public injUrY 15 23. Plaintiff has a clear legal right to insist upon the performance of the Defendant's duty to permit inspection, copying and photographing of public records. 24. Section 119.1 1(1), Florida Statutes requires this matter be set for an immediate hearing.ls 25. All conditions precedent to this action have occurred or have been excused or waived. 26. Defendant's actions with respect to the public records request discussed herein and in other public record requests made by Plaintiff and other parties, demonstrate a pattern of noncompliance with the Public Records Act and also a likelihood of future violations such that injunctive relief is appropriate. Count I — Unlawful Withholdine of Records: Not All Records Produced 27. Plaintiff re -alleges and incorporates by reference paragraphs 1 through 26 as if fully alleged herein. 28. Upon information and belief, Defendant did not produce all records responsive to the Request. 29. Defendant has made it clear that no further records will be provided in response to the Request. 30. Defendant's failure to produce all records responsive to the Request constitutes a 15 Note Daniels v. Bryson, 548 So. 2d679,680 (Fla. 3d DCA 1989) The impermissible withholding of documents otherwise required to be disclosed constitutes, in and of itself; irreparable injury to the person making the public records request. Since the purpose of Chapter 119 is to afford disclosure of information without delay to any member of the public making a request, nondisclosure prevents access to the information and is an injury not ordinarily compeasable in damages. 16 See Footnote "3". 6 of 8 denial of access to public records in violation of the Public Records Act. Attorneys' Fees 31. The Public Record Act provides that "[i]f a civil action is filed against an agency to enforce the provisions of this chapter and if the court determines that such agency unlawfully refused to permit a public record to be inspected or copied, the court shall assess and award, against the agency responsible, the reasonable costs of enforcement including reasonable attorneys' fees." See § 119.12, Fla. Stat. Relief Requested WHEREFORE, Plaintiff prays this Court: (a) Set an immediate hearing pursuant to Section 119.11, Florida Statutes;17 (b) Declare that the Defendant's failure to provide Plaintiff with access to the requested public records was unconstitutional and unlawful under Article I, Section 24 of the Florida Constitution's and the Public Records Act;19 (c) Order the Defendants to allow the inspection, copying and photographing of the requested records (upon payment of the statutorily authorized fees); (d) Order the Defendants to provide a copy of the requested records in electronic form. (e) Enjoin the Defendant from denying access to records which are subject to the Public Records Act: 20 " See Footnote "3". "See See Footnote "I". " See Footnote "2". 2' Note Govemment-In-The-Sunshine-Manual. page 172. Injunctive relief may be available upon an appropriate showing for a violation of Ch. 119, F.S. See Daniels 7of8 (f) Award Plaintiff his reasonable attomey's fees, costs, and expenses incurred in this action, as provided in Section 119.12, Florida Statutes; and (g) Grant such further relief as the Court deems proper. Respectfully submitted, Dated: February 11, 2014 THE O'BOYLE LAW FIRM, P.C. Attorneys for Plaintiff 1286 West Newport Center Drive Deerfield Beach, FL 33442 Telephone: (954) 834-2201 Facsimile: (954) 360-0807 For Service of Court Documents: oboylecourtdoes(@.oboyielawfirm.com By: /s/ Giovani Mesa Giovani Mesa, Esq. Florida Bar 40086798 gmesaPobovlelawfitm com v. Bryson, 548 So. 2d 679 (Fla 3d DCA 1989) (injunctive relief appropriate where there is a demonstrated Pattern of noncompliance with the Public Records Act, together with a showing of likelihood of future violations; mandamus would not be an adequate remedy since mandamus would not prevent future harm). Defendant's actions clearly demonstrate the high likelihood, in not the certainty, that such unlawful conduct will continue and the urgent need for injunctive relief from this court. 8of8 **** CASE NUMBER: 2014CA001572 DMSION: AJ **** Filing # 10027628 Electronically Filed 02/07/201411:48:26 AM IN THE CIRCUIT COURT OF THE 15' JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA MARTIN E. O'BOYLE, Plaintiff, V. THE TOWN OF GULF STREAM, Defendant. THE STATE OF FLORIDA To Each Sheriff of the State: CASE NO.: SUMMONS bL- IT — zolq 3,55 PM CPS lLSy YOU ARE COMMANDED to serve this summons and a copy of the complaint in this law- suit on defendant: Town of Gulf Stream 100 Sea Road Gulf Stream, FL 33483 Each defendant is required to serve written defenses to the complaint or petition on Giovani Mesa, Plaintiffs attorney, whose address is 1286 West Newport Center Drive, Deerfield Beach, Florida 33442, within 20 days after service of this summons on that defendant, exclusive of the day of service, and to file the original of the defenses with the clerk of this court either before service on plaintiff's attorney or immediately thereafter. If a defendant fails to do so, a default will be entered against that defendant for the relief demanded in the complaint or petition. DATED on: FEB 10 2014 Clerk of the Court 3W Christina Beahan The O'Boyle Law Firm P.C. Attorneys for Plaintiff 1286 West Newport Center Drive Deerfield Beach, FL 33442 Telephone: (954) 574-6885 Facsimile: (954) 360-0807 gmesa(a)obovlelawfirm.com By: !s/ Giovani Mesa Giovani Mesa, Esq. Florida Bar #0086798 SHARON R. BOCK Clerk & Comptroller P.O. Box 4667 West Palm Beach, Florida 33402-4667 IN THE CIRCUIT COURT OF THE 15`s JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA MARTIN E. O'BOYLE, Plaintiff, V. THE TOWN OF GULF STREAM, Defendant. CASE NO.: VERIFIED COMPLAINT TO ENFORCE FLORIDA'S PUBLIC RECORDS ACT AND FOR DECLARATORY, INJUNCTIVE AND MONETARY RELIEF The Plaintiff Martin E. O'Boyle, ("Plaintiff'), by and through the undersigned counsel, hereby sues the Town of Gulf Stream, ("Defendant"), and as grounds therefore alleges the following: 1. This action concerns the Defendant's violation of Plaintiffs civil rights pursuant to Article I, Section 24 of the Florida Constitution and Chapter 119, Florida Statutes, (the "Public Records Act"). 2. This action seeks declaratory, injunctive, and monetary relief. 3. Specifically, Plaintiff seeks an order declaring the Defendant to be in breach of its constitutional' and statutory2 duty to permit access to public records, and compelling the 'Note Article 1 Section 24, Fla. Const. Every person has the right to inspect or copy any public record made or received in connection with the official business of any public body, officer, or employee of the state, or persons acting on their behalf, except with respect to records exempted pursuant to this section or specifically made confidential by this Constitution. This section specifically includes the legislative, executive, and judicial branches of government and each agency or department created thereunder, counties, municipalities, and districts; and each constitutional officer, board, and commission, or entity created pursuant to law or this Constitution. 2 Note § 119.07(I)(a), Fla. Stat 1 of 9 Defendant to provide access to the requested public records, enjoining the Defendant from denying access to public records, and awarding Plaintiff attorney's fees and costs. Additionally, Plaintiff requests this matter be expedited pursuant to Section 119.11 (1), Florida Statutes3. Jurisdiction and Venue 4. This Court has subject matter jurisdiction pursuant to Article V, Section 5(b) of the Florida Constitution, and Section 119.11, Florida Statutes. 5. This Court has personal jurisdiction over the Defendant, because the Defendant is a public agency in Palm Beach County. 6. The causes of action in the instant case accrued in Palm Beach County; therefore, this Court is the appropriate venue for the vindication of Plaintiff's civil rights. The Parties 7. Plaintiff is a Florida citizen who resides in Palm Beach County. 8. Plaintiff is a "person" as that term is used in the Public Records Act. See § 119.07(1)(a), Fla Stat.4 9. The Defendant is an "agency" pursuant to Section 119.011(2), Florida Statutes.5 Every person who has custody of a public record shall permit the record to be inspected and copied by any person desiring to do so, at any reasonable time, under reasonable conditions, and under supervision by the custodian of the public records. ' Note § 119.11(l), Fla Stat. Whenever an action is filed to enforce the provisions of this chapter, the court shall set an inunediate hearing, giving the case priority over other pending cases. See Footnote "2". S Note § 119.011(2), Fla Stat "Agency" means any state, county, district, authority, or municipal officer, department, division, board, bureau, commission, or other separate unit of government created or established by law including, for the purposes of this chapter, the Commission on Ethics, the Public Service Commission, and the Office of Public Counsel, and any other public or private agency, person, partnership, corporation, or business entity 2of9 10. The Defendant has a duty to permit the inspection, copying, and photography of Defendant's public records by any person desiring to do so, at a reasonable time, under reasonable conditions, and for reasonable costsa. (Emphasis added). See § 119.07, Fla. Stat.; Art. I, § 24, Fla. Const. Florida's Public Records Act 11. Florida's Public Records Act implements a right guaranteed to members of the public under the Florida Constitution and it therefore promotes "a state interest of the highest order." See NCAA v. Associated Press, 18 So. 3d 1201, 1212 (1 st DCA 2009)7. 12. The right of access to public records applies to "any public body, officer, or employee of the state, or persons acting on their behalf...." Art. I, § 24, Fla. Const.; see also § 119.011(2), acting on behalf of any public agency. 6 Note Govemment-In-The-Sunshine-Manual 2012 Edition page 144. The term `reasonable conditions" as used in s. 119.07(i)(a), F.S., "refers not to conditions which must be fulfilled before review is permitted but to reasonable regulations that would permit the custodian of records to protect them from alteration, damage, or destruction and also to ensure that the person reviewing the records is not subjected to physical constraints designed to preclude review." Wait v. Florida Power & Light Company, 372 So. 2d 420, 425 (Fla. 1979). See also State ex rel. Davis v. McMillan, 38 So. 666 (Fla. 1905); and Tribune Company v. Cannella, 458 So. 2d 1075, 1078 (Fla. 1984), appeal dismissed sub nom., DePerte v. Tribune Company, 105 S.CL 2315 (1985) (the sole purpose of custodial supervision is to protect the records from alteration, damage, or destruction). Accordingly, the "reasonable conditions" do not include a rule or condition of inspection which operates to restrict or circumvent a person's right of access. AGO 75-50. "The courts of this state have invalidated measures which seek to impose any additional burden on those seeking to exercise their rights to chub records" under Ch. 119, F.S. Inf. Op. to Cook, May 27, 2011. And see State v. Webb, 786 So. 2d 602 (Fla. Ist DCA 200 1) (requirement that persons with custody of public records allow records to be examined "at any reasonable time, under reasonable conditions" is not unconstitutional as applied to public records custodian who was dilatory in responding to public records requests). 7 Note NCAA v. Associated Press, 18 So. 3d 1201, 1212 (1st DCA 2009) We are not persuaded that the Public Records law has an indirect effect on interstate commerce, but even if some effect had been established, we could not say that the law violates the dormant Commerce Clause. The Public Records law implements a right guaranteed to members of the public under the Florida Constitution and it therefore promotes a state interest of the highest order. The negligible impact the law might have on interstate commerce clearly does not outweigh the goal of ensuring open government. 3 of 9 Fla. State 13. Under the Public Records Act, "[e]very person who has custody of a public record shall permit the record to be inspected and copied by any person desiring to do so, at any reasonable time, under reasonable conditions, and under supervision by the custodian of the public records." See § I I9.07(1)(a), Fla. State 14. Under the Public Records Act, "[a]ny person shall have the right of access to public records for the purpose of making photographs of the record..." See § 119.07(3)(a), Fla. Stat.10 15. Defendant, as an agency and custodian of records, has an obligation to provide any non-exempt public records for inspection, copying and photography upon request. See § 119.07(1)(a)11, §119.07(3)(a)12, Fla. Stat.; Art. I, § 24, Fla. Const.13 Factual Background 16. On January 24, 2014, Plaintiff, submitted a public records request via e-mail to the Defendant. 17. Specifically, Plaintiff sought to obtain: [A] copy of all communications and Public Records ... sent by or received by Scott Morgan of the Architectural Review and Planning Board of the Town of Gulf Stream for the period beginning January 1, 2012 through the 'See Footnote "S'. 'See Footnote "2". "Note § 119.07(3Xa), Fla. Stat Any person shall have the right of access to public records for the purpose of malting photographs of the record while such record is in the possession, custody, and control of the custodian of public records. " See Footnote "2". "- See Footnote "10". 13 See Footnote "1". 4 of 9 date of this Request The above request shall include Text Messages and E -Mails from private accounts. (the "Request"). Said Request is attached hereto and specifically incorporated herein as Exhibit A. 18. On the same day after receipt of the Request, on January 24, 2014, Defendant's custodian of records sent a letter to Plaintiff via E -Mail, stating in relevant part: The Town of Gulf Stream has received your public records request dated January 24, 2014. If your request was received in writing, then the first page of that request is attached to this cover letter. Ifyour request was verbal, then the description ofyour public records request is set forth in the space below. Our staff will review your request within the next three business days, and we will promptly send you the appropriate response or an estimated cost to respond. (the "Initial Response"). Said Initial Response is attached hereto and specifically incorporated herein as Exhibit B. 19. On February 3, 2014, Defendant —without giving an update after three days as promised by their form automatic delay letter—partially responded (the "Final Response")producing only four documents. Said Final Response is attached hereto and specifically incorporated herein as Exhibit C. General Allegations 20. The records being sought by Plaintiff are public records pursuant to Section 119.011(12)14, Florida Statutes. 21. There is no statutory exemption that applies to the requested public records and the "Note § 119.011(12), Fla. Stat. "Public records" means all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software, or other material, regardless of the physical form, characteristics, or means of transmission, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency. 5 of 9 Defendant has cited none. 22. Violations of Section 119.07, Florida Statutes constitute an irreparable public mjury15. 23. Plaintiff has a clear legal right to insist upon the performance of the Defendant's duty to permit inspection, copying and photographing of public records. 24. Section 119.11 (1), Florida Statutes requires this matter be set for an immediate hearing.lc 25. All conditions precedent to this action have occurred or have been excused or waived. 26. Defendant's actions with respect to the public records request discussed herein and in other public record requests made by Plaintiff and other parties, demonstrate a pattern of noncompliance with the Public Records Act and also a likelihood of future violations such that injunctive relief is appropriate. Count I — Unlawful Withholding of Records: Not All Records Produced 27. Plaintiff re -alleges and incorporates by reference paragraphs 1 through 26 as if fully alleged herein. 28. Upon information and belief, Defendant did not produce all records responsive to the Request. 29. Defendant has made it clear that no further records will be provided in response to the Request. "Note Daniels v. Bryson, 548 So. 2d 679, 680 (Fla 3d DCA 1989) The impermissible withholding of documents otherwise required to be disclosed constitutes, in and of itself, irreparable injury to the person making the public records request Since the purpose of Chapter 119 is to afford disclosure of information without delay to any member of the public making a request, nondisclosure prevents access to the information and is an injury not ordinarily compensable in damages. to See Footnote' 3". 30. Defendant's failure to produce all records responsive to the Request constitutes a denial of access to public records in violation of the Public Records Act. Attornevs' Fees 31. The Public Record Act provides that "[ijf a civil action is filed against an agency to enforce the provisions of this chapter and if the court determines that such agency unlawfully refused to permit a public record to be inspected or copied, the court shall assess and award, against the agency responsible, the reasonable costs of enforcement including reasonable attorneys' fees." See §119.12, Fla. Stat. Relief Requested WHEREFORE, Plaintiff prays this Court: (a) Set an immediate hearing pursuant to Section 119.11, Florida Statutes;17 (b) Declare that the Defendant's failure to provide Plaintiff with access to the requested public records was unconstitutional and unlawful under Article I, Section 24 of the Florida Constitution's and the Public Records Act, -19 (c) Order the Defendant to allow the inspection, copying and photographing of the requested records (upon payment of the statutorily authorized fees); (d) Order the Defendant to provide a copy of the requested records in electronic form. (e) Enjoin the Defendant from denying access to records which are subject to the Public Records Act: 2e 17 See Footnote "P. �a See Footnote "1". 9 See Footnote "2". 20 Note Goverment -In -The -Sunshine -Manual page 172 Injunctive relief may be available upon an appropriate showing for a violation of Ch. 119, F.S. See Daniels 7of9 (f) Award Plaintiff his reasonable attorney's fees, costs, and expenses incurred in this action, as provided in Section 119.12, Florida Statutes; and (g) Grant such further relief as the Court deems proper. Respectfully submitted, Dated: February 7. 2014 THE O'BOYLE LAW FIRM, P.C. Attorneys for Plaintiff 1286 West Newport Center Drive Deerfield Beach, FL 33442 Telephone: (954) 574-6885 Facsimile: (954) 360-0807 For Service of Court Documents: obovlecourtdocs ct obovlelawfirm com By: /s/ Giovani Mesa Giovani Mesa, Esq. Florida Bar ir0086798 gmesann,obovlelawfirm.com v. Bryson, 548 So. 2d 679 (Fla. 3d DCA 1989) (injunctive relief appropriate where there is a demonstrated pattern of noncompliance with the Public Records Act, together with a showing of likelihood of future violations; mandamus would not be an adequate remedy since mandamus would not prevent future harm). Defendant's actions clearly demonstrate the high h7celihood, in not the certainty, that such unlawful conduct will continue and the urgent need for injunctive relief from this court. 8of9 VERIFICATION STATE OF FLORIDA COUNTY OF BROWARD BEFORE ME, the undersigned authority, personally appeared, MARTIN E. O'BOYLE, who, being first duly identified and sworn, deposes and says that this VERIFIED COMPLAINT is based on records and information known to him, and is true and correct to the best of his knowledge, information, and belief. By: Name: MARTINE. O'BOYLE, STATE OF FLORIDA ) )SS COUNTY OF BROWARD ) Sworn to, affirmed, and subscribed before me this 710 day of Far'wfl, 2014 by MARTIN E. O'BOYLE, Pl JILL R MOHLER } MY COMMISSION # EE081214 % w EXPIRES April 12. 2015 �07I3960157 FbrAaNOGrySarvio.cvm NOTARY PUBLIC STATE OF FLORIDA Sign: ! �� erg✓ Print: ,11(L i! P11(lb (g (SEAL) Please indicate: Personally Known: ✓ OR Produced Identification: Type of Identification Produced: 9 of 9