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HomeMy Public PortalAboutOrder on SJ/Order on Mtn for SJ on Defs Counterclaim (O'Boyle)03-21-13;09;57AM; m 1/ 4 COMMERCE GROUP, INC, 1280 WEST NEWPORT" CENTER DRIVE DEERFIELD BEACH, FLORIDA 33442 TELECOPIER TRANSMITTAL PAGE DA %-E' MARCH 21, 2013 TO: COMMISSIONER MURIEL J. ANDERSON COMMISSIONER W. GARRETT ]TERING COMMISSIONER ROBERT W. GANGER MAYOR JOAN K. ORTHWEIN VICE MAYOR THOMAS M. STANLEY FROM: MARTIN E. O'BOYLE NUMBER OF PAGES INCLUDING TRANSMITTAL PAGE 4 IF YOU DO NOT RECEIVE ALL PAGES, PLEASE CALL #954-570-3513 TELECOPIER REPLY #954-360-0807 X Original will not follow. Original will follow via: Regular Mail Overnight Delivery Hand Delivery Other: IUTA: PLEASE COPY AND DISTRIBUTE THIS FAX TO THE ABOVE LISTED OFFICIALS. THANKS FOR YOUR HELP! brenda 03-21-13;09;57AM; T 2i 4 COM MRCE GROUP moboylefeZcommerce-Pc'ouv com Direct Dial Telephone #954-570-3505 March 21, 2013 VIA E-MAIL: bthrashe a gulf -stream ore TELEPHONE #561-276-5116 Town of Gulf Stream 100 Sea Road Gulf Stream, FL 33483 Attn: William H. Thrasher, Town Manager Re: North Hidden Harbour Drive - Condemnation Dear Bill: I hope this letter finds you well. Would you kindly let me know if the Town of Gulf Stream would be interested in purchasing the streets that abut my property' and which I own in Gulf Stream? A prompt response to this request would be appreciated, since if the Town is interested, I would like to commence negotiations forthwith. In the alternative, if they are not interested (and since, as I see it, they have already made a "taking"), I will turn this matter over to counsel to investigate filing an action in condemnation. Although I have not spoken to my other neighbors on North Hidden Harbour Drive about this, by copy of this letter to Mr. Neeves and Mr. Krebs, I am making them aware of this request; and I am advising them that I will alert them as to your response. As always, your prompt attention to this matter would be greatly appreciated. I See shaded portion of attached Survey. www.commerec•group.com TE(. 954.360.7713 . Fax 954.360.0807 1280 WEST NEWORT Cwrm Dnrm DURFIELD Bucri, FLORIDA 33442 va-n-13; U&: b /AM; 3/ 4 William H. Thrasher, Town Manager March 21, 2013 Page 2 To expedite a response, I am sending a courtesy copy of this letter to Gulf Stream's Mayor, Joan Orthwein and Commissioners; and to Gulf Stream's Solicitor, Mr. John Randolph. I thank you for your kind cooperation. Sincerely yours, COMMERCE GROUP, INC. Martin E. O'B yle President Enclosure cc: Commissioner Muriel J. Anderson - Via Fax #561-737-0188 w/ enclosure Commissioner W. Garrett Dering - Via Fax 4561-737-0188 w/ enclosure Commissioner Robert W. Ganger -- Via Fax 4561-737-0188 w/ enclosure Robert T. Krebs - E -Mail w/ enclosure Kimberly K. Kroha - E -Mail w/ enclosure James P. Neeves - E -Mail w/ enclosure Jonathan R. O'Boyle, Esquire -- E -Mail w/ enclosure Mayor Joan Orthwein - Via Fax #561-737-0188 w/ enclosure John C. Randolph, Esquire - E -Mail w/ enclosure William F. Ring, Jr., Esquire - E -Mail w/ enclosure Brenda A. Russell - E -Mail w/ enclosure Vice Mayor Thomas M. Stanley - Via Fax 4561-737-0188 w/enclosure Ryan L. Witmer - E -Mail w/ enclosure P/1101/PM/CORRES/HHE VJ-21-13;09:57AM; # 4/ 4 Bill Thrasher From: Janto Djajaputra <jantodjajaputra@gmail.com> Sent: Tuesday, April 01, 2014 6:27 PM To: Bill Thrasher Subject: PUBLIC RECORDS REQUEST for ganger financial record Dear Custodian of Records, This is a public records request of the Town of Gulf Stream for public records. I do this pursuant to Florida Constitution Article 1, Section 24 and Florida Statutes Chapter 119.07. The most recent record of Robert Ganger's financial interests in the public record of your agency. If you contend that any of the records I am seeking, or any portion thereof, are exempt from inspection or disclosure please cite the specific exemption as required by Florida Statute §119.07(1)(e) and state in writing and with particularity the basis for your conclusions as required by Florida Statute §119.07(1)(f). Please take note of Florida Statue §119.07(c) and your affirmative obligation to (1) promptly acknowledge receipt of this public records request and (2) make a good faith effort which "includes making reasonable efforts to determine from other officers or employees within the agency whether such a record exists and, if so, the location at which the record can be accessed." I am, therefore, requesting that you notify every individual in possession of records that may be responsive to this public records request to preserve all such records on an immediate basis. If the records are not available as digital records then please email me with instructions for me to pick the records up from you. I would prefer the records in electronic or digital form. If the public records being sought are maintained by your agency in an electronic format please produce the records in the original electronic format in which they were created or received. See Florida Statute §119.01(2)(f). If you anticipate the production of these public records will require a search of sufficient duration as to require any deposit payment from me, please notify me of any such required payment prior to conducting any portion of that search which would require such payment. If you anticipate the production of these public records to exceed $1.00 please notify me in advance of their production with a written estimate of the total cost. Please be sure to itemize any estimates so as to indicate the total number of pages and/or records, as well as to distinguish the cost of labor and materials prior to you expending any resources that would require payment from me. All responses to this public records request should be made in writing to the following email address: iantodiaiaputraCcDgmail.com 1 IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA CASE NO. 502014CA004474AIB CIRCUIT CIVIL DIVISION "AA" MARTIN E. O'BOYLE, Plaintiff VS. TOWN OF GULF STREAM, Defendants. TOWN OF GULF STREAM, Counter -Plaintiff V. MARTIN E. O'BOYLE, an individual RYAN WITMER, an individual CHRISTOPHER O'HARE, an individual, WILLIAM RING, an individual, JOHATHAN R. O'BOYLE, an individual DENISE DEMARTINI, an individual PUBLIC AWARENESS INSTITUTE, INC., CITIZENS AWARENESS FOUNDTION, INC., OUR PUBLIC RECORDS, LLC, COMMERCE GROUP, INC. and THE O'BOYLE LAW FIRM, P.C., INC. Counter -Defendants Il ORDER ON TOWN OF GULF STREAM'S MOTION TO AMEND COUNTERCLAIM THIS MATTER came before the court for hearing on November 5, 2015, on Defendant/Counter-Plaintiff, TOWN OF GULF STREAM's ("Gulf Stream" or the "Town') Motion to Amend the Counterclaim (the "Motion") filed in the above -styled case. The Motion comes immediately on the heels of the court's recent Order Granting Plaintiff/Counter- Defendant's Motion for Summary Judgment on Gulf Stream's Counterclaim and Affirmative Page 2 Case No. 502014CA004474A)OOCKM]3 MARTIN E. O'BOYLE v. TOWN OF GULF STREAM Defenses (the "Order"). That Order effectively disposed of Gulf Stream's Counterclaim and most of its Affirmative Defenses. The Town now asks for leave to amend the Counterclaim to raise new claims for declaratory and injunctive relief. As a procedural issue, Plaintiff/Counter-Defendant, Martin E. O'Boyle ("O'Boyle") argues that Gulf Stream is estopped from amending its pleading after entry of summary judgment. However, "[a] party may, with leave of court, amend a pleading at or even after a hearing and ruling on a motion for summary judgment." PNC Bank. N.A. v. Progressive Emph-. Srvs. II. 55 So. 3d 655, 660 (quoting Yun Enters.. Ltd. v. Graziano, 840 So. 2d 420, 422 (Fla. 51h DCA 2003)). As to those other Counter -Defendants who had not yet answered the Counterclaim, the Town has the right to amend as a matter of right. Fla. R. Civ. P. 1190. Of greater concern, is whether the Motion should be denied on the grounds that the proposed amendment is futile. "As a general rule, refusal to allow amendment of a pleading constitutes an abuse of discretion unless it clearly appears that allowing the amendment would prejudice the opposing party; the privilege to amend has been abused; or amendment would be futile." Bill Williams Air Conditioning & Heating Inc. v. Haymarket Co-op. Bank, 592 So. 2d 302, 305 (Fla. Dist. Ct. App. 1991). The Town claims that its amendments do not run afoul of or repeat those claims previously rejected by the court in the Order of Summary Judgment. Yet, a review of Counts I- III indicate that they are based upon allegations of an alleged conspiracy among the various co-defendants to file public records requests to a degree and in amounts the Town considers to be excessive. This is this very kind of legal conduct judicially sanctioned under Chapter 119 that the court ruled "cannot, under any scenario, give rise to a cause of action or affirmative defense". t Any such amendment would, therefore, be futile. It is, nonetheless, disconcerting to learn of allegations that O'Boyle and "those acting on his behalf' have escalated even further their alleged war on the Town through an ever increasing and unrelenting barrage of public record requests: ' Order on Motion for Summary Judgment on Defendants' Counterclaim and Affirmative Defenses, 15'h Judicial Cir., November 4, 2015. Page 3 Case No. 502014CA004474AXXXXMB MARTIN E. O'BOYLE v. TOWN OF GULF STREAM "Indeed, in the 17 business days from the date this Court heard O'Boyle's motion for summary judgment on October 6, 2015 to the present, O'Boyle or those acting on his behalf or at his direction have cause Counter -Defendant Commerce Group Inc. to hit the Town with some 50 wide-ranging and patently harassing public records request." Z Among other things requested of the Town are: A copy of all hard drives now or formerly from all computers (which presently exist or previously existed within the last five years) in the Town of Gulf Stream Town Hall ... Copies of all records (including, without limitation, communications, billings, memos, text messages, emails, audio tapes and videos) wherein [Town Manager William Thrasher Town Clerk Rita Taylor Town Deputy Clerk Kelly Avery Attorney John C Randolph Attorney Joanne O'Connor Attorney Robert Sweetamile. Town Mayor Scott Morgan former Town Mayor Joan Orthwein and various Town Commissioners the League of Citiesl was a Receiver or a Sender during the period January 1. 2013 through October 12 2015 which are in possession of the Town of Gulf Stream. The term "Town of Gulf Stream" shall mean each of the following: the Town of Gulf Stream, its Commissioners, its Manager, its employees, its Police Department, its Police Officers and its Counsel (including, without limitation, the following law firms) Sweetapple, Broeker & Varkas; Richman Greer, PA; and Jones, Foster, Johnston & Stubbs, (including, without limitation, the attorneys, employees and partners of each such law firm.) As if that were not enough, it is alleged that Counter -Defendant O'Hare has lodged another two dozen public records requests to the Town in the past month. If true, it would seem that O'Boyle and the Counter -Defendants have requested that the Town produce virtually every document, whether in electronic or paper form, generated by the Town and its officials, attorneys, and a host of others for at least the past three years. It would certainly seem on the basis of these requests alone that the Town is in no way "crying wolf' when it bemoans the amount of labor, time, and money that would be required to meet these demands. The number and breadth of these demands only lends credence to the Town's 3 Defendant, Town of Gulf Stream's Motion to Deem Amended Counterclaim Properly Filed or for Leave to Amend as to Martin O'Boyle, pg. 5 (DE # 207). Page 4 Case No. 502014CA004474A7000MM MARTIN E. O'BOYLE v. TOWN OF GULF STREAM argument that the requests serve no legitimate purpose other than to harass and punish the Town and its citizens. Yet, that is only further reason why the legislature should intervene if it deems that Chapter 119 is being misused in ways contrary to the public interest. It is important to note that in this case, it has been stipulated that all public records requested of the Town have been provided. Currently, the only issue remaining is the Plaintiff's' claim of entitlement to attorneys' fees. The Town seeks to greatly expand the scope of this case to include other public records requests made both in the past and since the filing of this action, many of which are not yet even in litigation. In effect, the court is being asked to be a sort of judicial ombudsman to oversee and administer any and all public records requests made of the Town by or on behalf of the Counter - Defendants. For instance, it asks the court to "[e]stablish a schedule and procedures for dealing with robo and multiple public records requests as well as public records requests being served by fictitious and unknown entities acting on behalf of Counter- Defendants."4 Not only would this lead to promiscuous judicial intervention, but for reasons more fully explained in the Order Granting Summary Judgment, it remains the court's belief that this would require legislative rather than judicial action. Significantly, Chapter 119 seems to afford the Town the very relief it seeks of this court. It has long been the law that the courts may consider the nature or volume of public records requested to be inspected, examined, or copied in determining not only the costs to be charged but also whether the time to comply is reasonable under the circumstances. Tribune Co. v. Cannella. 458 So. 2d 1075, 1079 (Fla. 1984) (The Act permits a "reasonable time allowed" to retrieve the records and delete any exempt portions.) The Town's attorney acknowledges as much, but prefers a ruling in advance so as to insulate the Town from liability in the event it is later determined that the delay was not reasonable. If the Town 3 The need to address `robo" requests seems premature inasmuch as it has been represented that no such requests have yet been made by any of the Counter -Defendants. Count I of Defendant/Counter-Plaintiff's Amended Counterclaim for Declaratory Judgment and Injunctive Relief, pg. 23. Similar relief is sought in Counts II and III. . Page 5 Case No. 502014CA004474AX30CXMB MARTIN E. O'BOYLE v. TOWN OF GULF STREAM is truly confident in its opinion that the magnitude and scope of these voluminous requests would quickly exhaust the meager resources of Town staff, then it should feel equally confident in its ability to convince a court of the necessity for any reasonable delays. Based on the foregoing, it is hereby ORDRED and ADJUDGED that Counter - Plaintiff's Motion to Amend Counterclaim is DENIED. DONE AND ORDERED in Chambers in Palm Beach County, West Palm Beach, Florida, this 9th day of November, 2015. Richard L. Oftedal Circuit Judge Copies furnished: Louis Roeder, Esq. 7414 Sparkling Lake Road, Orlando, FL 32819 Joanne O'Connor, Esq., 505 South Flagler Drive, Suite 1100, West Palm Beach, FL 33402 Robert A. Sweetapple, Esq., 20 S.E. 3'a Street, Boca Raton, FL 33432 D. Culver Smith, Esq., 500 South Australian Avenue, Suite 600, West Palm Beach, FL 33401 Elaine Johnson James, Esq. and Mitchell W. Berger, Esq., 350 East Las Olas Blvd., Suite 1000, Fort Lauderdale, FL 33301 Kenneth Drake, Esq., 150 Alhambra Circle, Coral Gables, FL 33134-4505 Daniel DeSouza, Esq., 101 NE Third Avenue, Suite 1500, Fort Lauderdale, FL 33301 IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA CASE NO.502014CA004474AXXXXMB CIRCUIT CIVIL DIVISION "AA" MARTIN E. O'BOYLE, Plaintiff VS. TOWN OF GULF STREAM, Defendants. TOWN OF GULF STREAM, Counter -Plaintiff V. MARTIN E. O'BOYLE, an individual RYAN WITMER, an individual CHRISTOPHER O'HARE, an individual, WILLIAM RING, an individual, JOHATHAN R. O'BOYLE, an individual DENISE DEMARTINI, an individual PUBLIC AWARENESS INSTITUTE, INC., CITIZENS AWARENESS FOUNDTION, INC., OUR PUBLIC RECORDS, LLC, COMMERCE GROUP, INC. and THE O'BOYLE LAW FIRM, P.C., INC. Counter -Defendants ORDER ON MOTION FOR SUMMARY JUDGMENT ON DEFENDANT'S COUNTERCLAIM AND AFFIRMATIVE DEFENSES THIS MATTER came before the court for hearing on October 6, 2015, on Plaintiff's Motion for Summary Judgment on Defendant's Counterclaim and Affirmative Defenses. The court has heard the argument of counsel, reviewed all relevant pleadings and papers filed in connection with the Motion, and is otherwise fully advised in the premises. Page 2 Case No. 502014CA004474AXXXXMB MARTIN E. O'BOYLE v. TOWN OF GULF STREAM L BACKGROUND Plaintiff, Martin E. O'Boyle ("O'Boyle"), filed this lawsuit on April 15, 2014, against Defendant, Town of Gulf Stream ("Gulf Stream" or the "the Town") pursuant to Chapter 119, Florida Statutes, (the "Public Records Act") to obtain attorney's fees arising out of a public records request.' Gulf Stream obtained leave to file certain enumerated affirmative defenses against O'Boyle, asserting (i) unclean hands, (ii) equitable estoppels, (iii) compliance with the Florida Public Records Act and (iv) the unlicensed practice of law. In addition, Gulf Stream filed a counterclaim for declaratory and injunctive relief against O'Boyle and numerous other counter- defendants, including the O'Boyle Law Firm, P.C.; Ryan Witmer, an attorney formerly employed by the O'Boyle Law Firm; Christopher O'Hare, a resident of Gulf Stream; William Ring, an attorney with the O'Boyle Law Firm; Jonathan O'Boyle, founder of the O'Boyle Law Firm; Citizens Awareness Foundation, Inc. ("CAFI"); Denise DeMartini, a director of CAFI; Public Awareness Institute; and Our Public Records LLC. Attempts by O'Boyle to strike the affirmative defenses and dismiss the counterclaim were largely denied. O'Boyle unsuccessfully sought an immediate hearing before this court on the merits of its request for attorney's fees. Petitions for writs of mandamus, certiorari and prohibition were then filed with the Fourth District Court of Appeals and were summarily denied on July 16, 2015. O'Boyle's motion for rehearing en banc and issuance of a written opinion were likewise denied by the appellate court on September 18, 2015. Gulf Stream has also filed nearly identical counterclaims against substantially the same parties in other cases. Those county court cases have since been transferred to the circuit court .2 t It has since been stipulated between the parties that all public records requested have been produced by the Town. S Martin E. O'Boyle v. Town of Gulf Stream, Case No. 2015CA004564 and Christopher O'Hare v. Town of Gulf Stream, Case No. 2015CA006067. In addition, the circuit court case of Martin E. O'Boyle r Town of Gulf Stream, Case No. 2014CA004474, was transferred to this division by order of Judge Hafele on July 17, 2014. Page 3 Case No. 502014CA004474AXXXXMB MARTIN E. O'BOYLE v. TOWN OF GULF STREAM They are in addition to a federal action filed on February 17, 2015, by Gulf Stream in Town of Gulf Stream v. Martin E. O Boyle, Case No. 15-cv-8082-KAM, a putative class action under RICO in the Southern District of Florida, West Palm Division. That case was dismissed by Judge Marra with prejudice on June 30, 2015 (the "federal action"). 3 Gulf Stream's counterclaim and affirmative defenses make numerous allegations, all of which relate to the actions of O'Boyle and the other counter -defendants in the filing of numerous public records requests against the Town. A common theme throughout is that these requests are frivolous, often times made using fraudulent, deceptive, and fictitious identification with the intent to extort or induce the Town to grant it special favors or risk the filing of additional lawsuits and the payment of attorney's fees as provided by Chapter 119. Among the relief requested by Gulf Stream is a temporary and permanent injunction preventing O'Boyle and the co-defendants from submitting additional public records request to the Town. To do otherwise, it is alleged, would cripple the Town and result in "the monopolization of the Town's clerk's office in fulfilling public records requests... " It is against this procedural and factual backdrop that the court considers O'Boyle's Motion for Summary Judgment. H. LEGAL ANALYSIS O'Boyle raises a number of grounds upon which summary judgment should be entered, including res judicata and the impermissible splitting of causes of action. However, because this court finds that the entire factual underpinning of the counterclaim cannot, under any circumstances, entitle the Town to relief, the court need not address those issues. As noted above, the cnix of the Town's counterclaim, whether it be for abuse of process, conspiracy, injunctive or declaratory relief, is based upon O'Boyle's conduct as it relates to his alleged filing Town of Gulf Stream v. O'Boyle, Case No. 9-15-cv-80812-KAM (S.D. Fla. June 30, 2015). 4 Paragraph 86 of the Counterclaim. Page 4 Case No. 502014CA004474AJOCNXMB MARTIN E. O'BOYLE v. TOWN OF GULF STREAM of public record requests under Chapter 119. Judge Marra, in the related federal action, was faced with identical claims and allegations, albeit in the context of a Complaint alleging violations by O'Boyle and the other defendants for violations of the Racketeer Influenced Corrupt Organizations Act ("RICO"): The basis for Plaintiffs' claim is the alleged filing of large numbers of frivolous public records requests, which are often intentionally inconspicuous, followed by the commencement of lawsuits when the requests are not addressed. Plaintiff alleges that Defendants then use the mails and wires to extort their victims by demanding settlement, including attorneys' fees and costs as provided by the public records statute, or face protracted litigation and a flung of additional public records requests and lawsuits. Town of Gulf Stream v. O'Boyle, No. 15 -80182 -CIV, 2015 WL 3970612, at *1 (S.D. Fla. June 30, 2015). Judge Marra properly recognized that: Defendants could not be convicted for filing the public record requests. Under Chapter 119 of the Florida Statutes, Defendants had the absolute right under current Florida law to file public record requests and then file lawsuits if the requests went unanswered. The motive for making a public record request is irrelevant under Florida law. See e.g., Microdecisions, Inc. v. Skinner, 889 So.2d 871, 875 (Fla. 2d DCA 2004). Furthermore, someone requesting access to or copies of public records may not be required to disclose background information such as a name or address unless the custodian is required by law to obtain the information. Chandler v. City of Greenacres, 140 So.3d 1080, 1084-85 (Fla. 4th DCA 2014). The request can come from someone anonymously. Id. at 1085. Id. at *4. Just as Defendants' legal use of these statutes does not constitute a predicate act under RICO, it cannot, under any scenario, give rise to a cause of action or affirmative defense under any of the legal theories advanced by the Town. Nowhere is this more apparent than in the Town's effort to enjoin defendants from availing themselves of rights accorded to citizens under Chapter 119. See, Lieberman v. Marshall, 236 So. 2d 120,127 (Fla. 1970) ("[w]e recognize that exercise of a valid political right may not be restrained by injunction."). Page 5 Case No. 502014CA004474AXXXXMB MARTIN E. O'BOYLE v. TOWN OF GULF STREAM The court is neither unmindful nor unsympathetic with the plight of Gulf Stream, a small municipality of only 17 permanent employees, who, if the allegations are true, are being forced to divert taxpayer monies earmarked for public services in order to address the avalanche of public records requests being filed for no purpose other than to harass and shakedown the Town by fear and the threat of having to pay attorneys' fees under the statute. While Gulf Stream may well be the poster boy for those victimized by individuals seeking to "game the system" by suing public agencies, it is hardly alone as "across the nation, public records laws [have] become a source of consternation for public servants who recognize the ideals of the public record laws, but who also endure the flaws."5 The unfortunate reality may be that "[a]s presently constructed, a small municipality simply cannot fully comply with the Florida public records laws when faced with a well-financed and determined adversary." Id. at 436. Tempting as it might be for this court to inject itself into this dispute in an attempt to right this alleged wrong, it must reluctantly decline as prior court precedent has judicially sanctioned the root causes of the abuses complained of, namely; allowing anonymity, prohibiting the limitation of the number of requests, and forbidding any inquiry into the motive of the requester. See e.g., Chandler v. City of Greenacres, 140 So. 3d 1080, 1084 (Fla. 0 DCA 2014) (Anonymous email requests were sufficient to trigger City's obligation to produce public records without regard to requester's lack of background information or motive.) As noted by Judge Marra, any real relief is likely going to have to come from the legislature, who will have to decide whether the "sunburn" inflicted upon Gulf Stream and other State agencies warrants placing limits on the State's public records law and the public's nearly 5 Keith W. Rizzardi, Sunburned: How Misuse of the Public Records Laws Creates an Overburdened, More Expensive, and Less Transparent Government, 44 Stetson L. Rev. 425, 436 (2015). This Article contains a thorough analysis of the problems facing local governments, including Gulf Stream, from those who purportedly manipulate and misuse the public records law to the detriment of the public, free of any consequences. Page 6 Case No. 502014CA004474AXXXXMB MARTIN E. O'BOYLE v. TOWN OF GULF STREAM limitless right to access, considered by many to be a model for open government and transparency.6 Perhaps the magnitude of the injuries allegedly inflicted on the Town and others throughout the State will prompt the Legislature to action .7 Having demonstrated the absence of any genuine issues of material fact and entitlement to judgment as a matter of law, it is hereby ORDERED and ADJUDGED: 1. Plaintiff, Martin E. O'Boyle's Motion for Summary Judgment against the Town of Gulf Stream on its Counterclaim is GRANTED. 2. Plaintiff, Martin E. O'Boyle's Motion for Summary Judgment against the Town of Gulf Stream as to its First and Second Affirmative Defenses is GRANTED. The Motion for Summary Judgment as to the Town's Third Affirmative Defense is DENIED.s The court will consider any and all appropriate circumstances and events, including the reasonableness of the Town's response, in determining O'Boyle's entitlement, if any, to attorney's fees. DONE AND ORDERED in Chambers in Palm Beach County, West Palm Beach, Florida, this 4`h day of November, 2015. V� v Richard L. Oftedal Circuit Judge 6 As an alternative form of relief, the Town has also sought to sanction the attorneys they allege are acting unethically in bringing these actions. Such efforts before the Florida Bar have, to date, been unsuccessful. ' Indeed, there are already several bills before the Florida legislature that are designed to address perceived "public records shakedowns", including Senate Bill 224 and House Bill 163. See "A New Scam: Public Records Shakedown", by Jan Pudlow, The Florida Bar News, February 1, 2015. " On October 23, 2015, the court entered an agreed "Order Denying, as Moot, Plaintiff's Motion for Partial Summary Judgment on Defendant's Allegations and Claims Related to the Unlicensed Practice of Law." Accordingly, the Town's Fourth Affirmative Defense relating to the Unlicensed Practice of Law is hereby STRICKEN. Page 7 Case No. 502014CA004474AXXXXMB MARTIN E. O'BOYLE v. TOWN OF GULF STREAM Copies furnished: Louis Roeder, Esq. 7414 Sparkling Lake Road Orlando, FL 32819 Joanne O'Connor, Esq., 505 South Flagler Drive, Suite 1100, West Palm Beach, FL 33402 Robert A. Sweetapple, Esq. 20 S.E. 3rd Street, Boca Raton, FL 33432 D. Culver Smith, Esq., 500 South Australian Avenue, Suite 600, West Palm Beach, FL 33401 Elaine Johnson James, Esq. and Mitchell W. Berger, Esq., 350 East Las Olas Blvd., Suite 1000 Fort Lauderdale, FL 33301 Kenneth Drake, Esq., 150 Alhambra Circle, Coml Gables, FL 33134-4505 Daniel DeSouza, Esq., 101 NE Third Avenue, Suite 1500, Fort Lauderdale, FL 33301 Kellv Ave From: scottmorgan75@gmail.com Sent: Monday, November 16, 2015 9:56 AM To: Kelly Avery Subject: Orders in state case Attachments: Order Dismissing Motion to Amend Counterclaim 11-9-15.pdf; Order Granting Summary Judgment 11-4-15.pdf Kelly, Attached are Judge Oftedal's Orders granting sum maryjudgment against our counterclaims and denying leave to amend the counterclaims. Please give these to Mr. Thrasher for distribution to the legislative liaisons working with the legislature to change the PR Law. Also, the decisions need to be forwarded to the League of Cities for their use with the legislature. Judge Oftecial emphasizes that the courts are unable to help Gulf Stream or any other municipality against abusive public records requests—even where bad faith is obvious. He acknowledges that a wrong is likely being perpetrated on Gulf Stream but that it is up to the legislature to correct it. His hands are tied by the statute. In the Order Denying Leave to Amend, he says: It is, nonetheless, disconcerting to learn of allegations that O'Boyle and "those acting on his behalf" have escalated even further their alleged war on the Town through an ever increasing and unrelenting barrage of public record requests... As if that were not enough, it is alleged that Counter -Defendant O'Hare has lodged another two dozen public records requests to the Town in the past month. If true, it would seem that O'Boyle and the Counter -Defendants have requested that the Town produce virtually every document, whether in electronic or paper form, generated by the Town and its officials, attorneys, and a host of others for at least the past three years. It would certainly seem on the basis of these requests alone that the Town is in no way "crying wolf when it bemoans the amount of labor, time and money that would be required to meet these demands The number and breadth of these demands only lends credence to the Town's argument that the requests serve no legitimate purpose other than to harass and punish the Town and its citizens yet that is only further reason why the legislature should intervene if it deems that Chapter 119 is being misused in ways contrary to the public interest. In his order granting summary judgment against Gulf Stream, Judge Oftedal states: The court is neither unmindful nor unsympathetic with the plight of Gulf Stream, a small municipality of only 17 permanent employees, who, if the allegations are true, are being forced to divert taxpayer monies earmarked for public services in order to address the avalanche of public records requests being filed for no purpose other than to harass and shakedown the Town by fear and the threat of having to pay attorneys' fees under the statute. While Gulf Stream may well be the poster boy for those victimized by individuals seeking to "game the system" by suing public agencies, it is hardly alone as "across the nation, public records laws [have] become a source of consternation for public servants who recognize the ideals of the public record laws, but who also endure the flows." The unfortunate reality may be that "[a]s presently constructed, a small municipality simply cannot fully comply with the Florida public records laws when faced with a well-financed and determined adversary." Id. at 436. Tempting as it might be for this court to inject itself into this dispute in an attempt to right this alleged wrong, it must reluctantly decline as prior court precedent hos judicially sanctioned the root causes of the abuses complained of, namely; allowing anonymity, prohibiting the limitation of the number of requests, and forbidding any inquiry into the motive of the requester. As noted by Judge Marra, any real relief is likely going to have to come from the legislature who will have to decide whether the "sunburn" inflicted upon Gulf Stream and other State agencies warrants placing limits on the State's public records law and the public's nearly limitless right to access considered by many to be a model for open government and transparency. Perhaps the magnitude of the injuries allegedly inflicted on the Town and others throughout the State will prompt the Legislature to action Scott W. Morgan