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HomeMy Public PortalAboutDismissal/Emrg. Motion for Temp Restraining Order (O'Boyle)IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA MARTIN E. O'BOYLE, Plaintiff, VS. . DMSION: AJ THE TOWN OF GULF STREAM; COPY WILLIAM THRASHER (individually), RECEIVED FOR FILING Defendants. MAR - 6 20% SHARON R. BOCK / CLERK & COMPTROLLER CIRCUIT CIVIL DIVISION NOTICE OF VOLUNTARY DISMISSAL. WITHOUT PREJUDICE Plaintiff, MARTINE. O'BOYLE, gives notice pursuant to Fla. R. Civ. P. 1.420(a) that the above -styled action is hereby dismissed without prejudice. I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by E-mail this 5a' day of March, 2014 to: Joanne M. O'Connor, Esq. Jones, Foster, Johnston & Stubbs, P.A. 505 South Flagler Drive, Suite 1100 West Palm Beach, FL 33401 joconnorO,ionesfoster.com THE O'BOYLE LAW FIRM P.C. Attorneys for Plaintiff /s/ Marrett W. Hanna Marrett W. Hanna, Esq. Florida Bar#W16039 1286 West Newport Center Drive Deerfield Beach, FL 33442 Telephone: (954) 570-3518 Facsimile: (954) 360-0807 Email: mhanna(aoboylelawfirm.com IN THE CIRCUIT COURT OF THE 15°i JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA MARTIN E. O'BOYLE, Plaintiff, me THE TO\VN OF GULF STREAM; WILLIAM THRASHER (Individually), Defendants. CASE NO.: PLAINTIFF'S VERIFIED EMERGENCY MOTION FOR A TEMPORARY RESTRAIlVING ORDER. PRELIMINARY INJUNCTION. AND DECLARATORY JUDGMENT COMES NOW, Plaintiff, MARTIN E. O'BOYLE, by and through his undersigned attorney, pursuant to Florida Rules of Civil Procedure R. 1.610, 42 U.S.C. 1983, the Supremacy Clause of Art. VI U.S. Const. and the Florida Constitution, and files this Verified Emergency Motion for a Temporary Restraining Order, Preliminary Injunction, and states the following in support: STATEMENT OF EMERGENCY This action concerns requires immediate redress because an election is quickly approaclung on March 11, 2014. The policy and practice of the Town of Gulf Stream (the "Toam") as applied to the removal of election signs placed by Plaintiff Martin O'Boyle, which relate to his campaign for election as Town Commissioner in the Town of Gulf Stream (the "Town") is of the utmost importance. The Town has an ordinance, policy, custom, regulation, or usage that allows "non-political" signage to be placed in the Town's right-of-way. At the 1 same time, however, the Town forbids political campaign signage to be posted in the same area as "non-political" speech. In fact, the Town, via ordinance and the policies of Town Manager Thrasher, discriminates against signage based upon the content contained thereon. Because the Town has repeatedly removed and threatened to remove Plaintiffs political campaign signs, which are both in the right -of way and off of the right-of-way, Plaintiff is forced to resort to court intervention to enjoin the Town's continuing policy of silencing political free speech. The Town's policy and actions in enforcement continue to obstruct Plaintiffs ability to fully and fairly participate in the Town Commissioners Election. STATEMENT OF RE, LEVANT FACTS On or about late January or early February 2014, Plaintiff duly registered to run for Town Commissioner in the March 11, 2014, election. 2. Around that time, Mayor Joan Orthwein told Plaintiff that he was `the least -well known candidate." 3. Plaintiff then initiated his campaign and advertised his candidacy with yellow signs bearing his name and the position for which he was running. 4. Those signs were identical in size and configuration to any other temporary political signs common in national and state elections. The only difference is Plaintiff s signs have a more robust build at a cost of five dollars each. 5. On or about February 16, 2014, Plaintiff and his employees started placing signs around the Town. 6. On or about February 17, 2014, Town Sgt. Haseley created a police report noting that Plaintiffs signs were in violation of the code because they were political signs placed in the right of way. This prohibition is codified in the content -based section 66-446(5)(d) of the Town code. That section regulated political signage only and other sections of the code govern other types of signs — such as real-estate signs or club signage. 7. On or about February 17 or 18, 2014, Plaintiff noticed that some of his signs were missing and ventured to the Town public works garage where he found some of his signs. 8. The Town workers had no knowledge of how the signs made their way to the garage. 9. Plaintiff continued to place his signs around Town including locations that constituted municipal property and the Town right-of-way. 10. On February 24, 2014, Plaintiff was issued a charging document from the Town, signed by Thrasher stating that Plaintiff was in violation of content -based Town code section 66- 446(5)(d) and that he had 12 hours to remove his signs placed on public property and the right- of-way. Thrasher also wrote that if Plaintiff did not remove his signs the Town would remove them immediately. 11. Around that time, Plaintiff began parking his pickup truck at Town Hall. The pickup truck had political campaign banners affixed to stands places in the bed of the truck. 12. The Town has designated Town Hall for beach parking in their comprehensive land use plan. 13. On or about March I & 2, 2014, Plaintiff campaigned door-to-door in the Place An Soleil district of the Town and earned the consent of numerous residents to place his political signs in their lawns. 14. On March 3, 2014, Thrasher directed Town police and Town public works officials to remove all of Plaintiff's signs that existed in the town right-of-way. 15. Plaintiff caught word of this action and wrote Thrasher an email telling Thrasher to not touch of any his signs and to mind Due Process. 16. Eye -witnesses claimed they saw Thrasher personally engaging in the "Sign Sweep." 17. During the "Sign Sweep;" the Town workers, at the direction of Thrasher, removed all signs they considered in the right-of-way of the Place An Soleil district without giving the property owners notice. 18. Town workers could have issued charging/waming letters to those residents who dawned Plaintiffs signs in their yard but did not: they just took them. Also, the Town workers could have knocked on the doors of those displaying signs — asking them to move the signs off the portion of their lawn where the right-of-way was located and onto the portion of their lawns where the right-of-way ceased to exist. 19. The Town removed more than 50 of Plaintiffs sign that day. 20. On March 4, 2014; Plaintiff retrieved his signs from the Town and proceeded to place two signs at Town Hall. 21. Thrasher then proceeded to remove them again. 22. During this confrontation, Thrasher hinted that something would be done about Plaintiff s truck because it is clad in political signage. 23. When asked about other vehicles containing signage, Thrasher replied that commercial signs on vehicles are different than political signage. 24. It is unclear, but beginning at 630 am. on March 4, 2014, someone from the Town began replacing signs around the Town. 25. Pursuant to 42 U.S.C. § 1983: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or any other person within its jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer or an act or omission taken in such officer's judicial capaTown, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable". Art. I, Section 4 of the Florida Constitution guarantees Florida's citizens the right to freedom of speech and press: Every person may speak, write and publish sentiments on all subjects but shall be responsible for the abuse of that right: No law shall be passed to restrain or abridge the liberty of speech or of the press. In all criminal prosecutions and civil actions for defamation the truth may be given in evidence. If the matter charged as defamatory is true and was published with good motives, the party shall be acquitted or exonerated. STANDARDS FOR EMERGENCY INJUNCTIVE RELIEF SOUGHT 26. This Court must grant Plaintiff Injunctive relief because Plaintiff can demonstrate the following: A. He will suffer irreparable harm unless the status quo is maintained; B. He has no adequate remedy at law; C. He has a substantial likelihood of success on the merits; and D. If issued, the injunction would serve the public interest. See Net First Nat'l Bank v. First Telebanc Corp. 834 So.2d 944, 949 (Fla. 4a' DCA 2003). PLAINTIFF'S ARGMENT IN SUPPORT OF EMERGENCY INJUNCTIVE RELIEF Plaintiff will likely succeed on the merits. The Town's attempt to suppress Plaintiffs right to free speech as guaranteed by both the First Amendment to the United States Constitution and the Florida Constitution. Suppression of the right to free speech in the case at bar is nothing more than unconstitutional content based restrictions, which are subject to strict scrutiny. R.A.V. v Town of St. Paul 505 U.S. 377 (1992). Additionally, the U.S. Supreme Court has opined that content -based discrimination demands "the State must show that its regulation is necessary to serve a compelling state interest and is narrowly drawn to achieve that end." Simon & Schuster. Inc. v. Members of NY State Crime Victims Bd. 502 U.S. 105, 118 (1991). Similarly, "[the government] faces a heavy burden in attempting to defend its content -based approach to taxation of magazines. In order to justify such differential taxation, the State must show that its regulation is necessary to serve a compelling state interest and is narrowly draHm to achieve that end." Arkansas Writers' Project hic v Ra"land, 481 U.S. 221, 231 (1987). In the instant matter, the Town's policy, practice, and custom of allowing other "non-political" signs on the Town right-of-way while removing all other candidate signs constitutes impermissible content based discrimination. Since both the Town's and Thrasher's conduct constitutes content discrimination, their actions must be review under the strict scrutiny standard and it is Defendants' burden to show the constitutionality of the ordinance/policies. A. The Loss of the Right to Speech is Irreparable Regardless of Duration It is well established that [t]he loss of First Amendment Freedoms, for even minimum periods of time, unquestionably constitutes irreparable injury. Elrod v Burns 427 U.S. 347 (1976); KH Outdoor. LLC v Town of Trussville 458 F.3d 1261,1271- 1272 (11th Cir. 2006). The only area of constitutional jurisprudence where we have said that an on-going violation constitutes irreparable injury is the area of First Amendment and right of privacy jurisprudence. The rationale behind these decisions was that chilled free speech and invasions of privacy, because of their intangible nature, could not be compensated for by money damages. In other words, plaintiffs could not be made whole. KH Outdoor. LLC, at 1272 (quoting Northeastern Fla. Chapter of the Assn of Gen. Contractors ofAmerica v Town of Jacksonville 896F.2d1283, 1285 (11th Cir. 1990)(internal citations omitted). The irreparable harm in the instant case is exacerbated by the proximity of the Election on March 11, 2014. B. The Right to Free Speech Outweighs Any Harm to the Public The continuing irreparable injury to Plaintiff clearly outweighs whatever damage, if any, the injunction may cause the Town. Even a temporary infringement of Plaintiff's First Amendment rights constitutes a serious and substantial injury that again, is exacerbated by the proximity of the Election. The Town has no legitimate interest in enforcing an unconstitutional policy, practice, or custom. For similar reasons, the injunction plainly is not adverse to the public interest. The public has no interest in enforcing an unconstitutional ordinance. See Florida Businessmen v Town of Hollywood. 648 F.2d 956 (5th Cir. 1981) (noting that "[t]he public does not support the Town's expenditure of time, money, and effort in attempting to enforce an ordinance that may well be held unconstitutional"); See also Joelner v Vill. Of Washington Park. 378 F.3d 613 (7th Cir. 2004) (noting that there can be no irreparable harm to a municipality when it is prevented from enforcing an unconstitutional statute because it is always in the public interest to protect First Amendment liberties" (internal quotations marks omitted)); Planned Parenthood Ass'n of Cincinnati. Inc. v Town of Cincinnati. 822 F.2d 1390 (6th Cir. 1987) (finding that the public's interest is in prevention of enforcement of ordinances which may be unconstitutional'). .Content neutral time, place, and manner regulations are permissible as long as they are narrowly tailored to serve a substantial government interest and do not unreasonably limit alternative avenues of expression. Ward v Rock Against Racism, 491 U.S. 781 (1989). In the instant matter, the Town's policy, practice, and custom unlawfully discriminates against content or viewpoint, which is the heart of this First Amendment claim. The Town's policy, practice, and custom of enforcing a content - based regulation is equally unconstitutional in that the nature of the message on the sign is considered, rather than (or in addition to) content neutral factors such as the size and material of the sign. Moreover, the Town allows non-political signs, by lav or practice (including but not limited to: real estate signs, contractor signs, builder signs, club signs, signs identifying private land developments), in the right-of-way but not political signs. The Town cannot selectively and discriminatorily remove such signage based on its content and viewpoint. Such tactics are precisely the unlawful activities the First Amendment protects. WHEREFORE, Plaintiff prays this Court grant his Verified Emergency Complaint for a Temporary Injunction ordering the Town and Thrasher to cease enforcing sec. 66-446(5) and all customs, policies, or usages flowing from the ordinance and returning any of Plaintiff, Martin E. O'Boyle's political campaign signs in Town possession. WHEREFORE, I, Affiant/Plaintiff, MARTIN E. O'BOYLE, swear and affirm that this Verified Emergency Motion for a Temporary Restraining Order, Preliminary Injunction, and Declaratory Judgment is true and correct. I HEREBY CERTIFY that on March 4, 2014, a true and correct copy of the forgoing has been electronically filed and provided to counsel for Defendants', Joan O'Connor at ioconnor amionesfoster.corn who has agreed to accept service of the forgoing on Defendants' behalf. Dated: 9c 2014 Respectfully submitted, The O'Boyle Law Firm P.C. Attorneys for Plaintiff 1286 West Newport Center Drive Deerfield Beach, FI 33442 Telephone: (954) 574-6885 Facsimile: (954) 360-0807 i an .obo Ielawfirm.com Marrett W. anna, Esq. Florida Bar 90016039