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