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.
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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
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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
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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.
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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".
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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.
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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
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(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.
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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:
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