HomeMy Public PortalAboutComplaint to Enforce Florida Public Recs. Act (O'Hare)l
CASE NUMBER: 2014CA002311 DIVISION: AN
Filing # 10684067 Electronically Filed 02/25/2014 0::26:28 PM
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IN THE CIRCUIT COURT OF THE
15`h JUDICIAL CIRCUIT IN AND FOR
PALM BEACH COUNTY, FLORIDA
CHRISTOPHER E. O'HARE,
Plaintiff,
l'1
THE TOWN OF GULF STREAM,
Defendant.
CASE NO.:
Gp
SliMiVI0NS "r
THE STATE OF FLORIDA`ll -hely , PQG,
To Each Sheriff of the State: rY 0 c).-
YOU
: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 February 2014
Clerk of the Court
By. FEB 26 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
gmesa(ailoboylelawfum.com
By: /s/ Giovani Mesa
Giovani Mesa, Esq.
Florida Bar #0086798
SHARON R. BOCK
Clerk & Comptroller
Loraine Hunt P.O. Box 4667
West Palm Beach, Florida
33402-4667
IN THE CIRCUIT COURT OF THE
15`x' JUDICIAL CIRCUIT IN AND FOR
PALM BEACH COUNTY, FLORIDA
10 toll • 0 . .
Plaintiff,
V.
THE TOWN OF GULF STREAM,
Defendant.
CASE NO.:
COMPLAINT TO ENFORCE FLORIDA'S PUBLIC RECORDS ACT AND FOR
DECLARATORY RELIEF
The Plaintiff, Christopher E. O'Hare, ("Plaintiff'), by and through the undersigned
counsel, hereby sues the Defendant, Town of Gulf Stream, ("Defendant"), and as grounds
therefore alleges the following:
IMMEDIATE BE,
1. This action concerns 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. TI -ds action seeks declaratory relief.
3. Pursuant to Chapter 119, "whenever an action is filed to enforce the provisions of this
chapter, the Court shall set an immediate hearing, giving the case priority over pending cases." §
119.11 (1), Florida Statutes.
4. Specifically, Plaintiff seeks an order declaring the Defendant to be in breach of its
constitutional' and statutory ditty to permit access to public records, and compelling the
Defendant to provide access to the requested public records, and awarding Plaintiff attorney's
fees and costs. Additionally, Plaintiff requests this matter be expedited pursuant to Section
119.11 (1), Florida Statutes'.
PARTIES. JURISDICTION AND VENUE
5. Plaintiff is a resident of Palm Beach County, Florida, is over the age of eighteen, and
is otherwise sui juris.
6. Plaintiff is a "person" as that term is used in the Public Records Act. See §
119.07(1)(a), Fla. Stat. 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.")
7. The Defendant is an agency for the purposes of Chapter 119, the Florida Public
Records Act. Fla. Stat. §119.011(2).
3. Defendant has a ministerial duty to permit inspection, examination, and copying of its
public records by any person desiring to do so, at reasonable times, under reasonable conditions,
'Note Article I 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 § 119.11 (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.
and for reasonable cost, pursuant to § 119.07(1)(a), Florida Statutes. (Emphasis added). See also,
Art. I, § 24, Fla. Const.
9. This Court has subject matter jurisdiction pursuant to Article V, Section 5(b) of the
Florida Constitution, and Section 119.11, Florida Statutes.
10. This Court has personal jurisdiction over the Defendant, because Defendant is a
public agency in Palm Beach County.
11. This Court is the appropriate venue for the vindication of Plaintiff's civil rights
because the cause of action accrued in Palm Beach County.
12. All conditions precedent to this action have occurred or have been excused or waived.
FACTS PERMENT TO ALL COUNTS
13. On February 13, 2014, Plaintiff submitted the following public records request
("Request") via -email to Defendant:
All records of checks or other forms ofpayment made by the Torvrr or Town
cheeks handwritten by William Thrasher for car wash services during the tine
period starting on January 1, 2011 through to the date you received this public
records request.
See Ex. A.
14. The request further stipulates the following:
If you anticipate the production of these public records to erceed $1.00 please
notify me in advance of theirproductiar 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.
See Ex. A.
15. On February 20, 2014, Defendant responded to the Request via -email indicating that
"[t]he town will not process this new public records request, or any future public records request
filed by you [Plaintiff], until the aforementioned cost [deposit of $792.54 for prior request] have
been paid or otherwise resolved" ("Response"). Defendant's Response cites Lozman v. City of
Riviera Beach, 995 So 2d 1027 (Fla. 4th DCA 2008), as Defendant's legal justification for not
processing Plaintiffs Request.
See Ex. B.
16. Other than citing Lozman v. City of Riviera Beach, 995 So.2d 1027 (Fla. 4th DCA
2008), Defendant cited no statutory exemption which would relieve it of its duty to comply with
Florida's Public Records Law.
17. All conditions precedent to this action have occurred or have been excused or waived.
I8. Violations of Section It 9.07, Florida Statutes constitute an irreparable public injury3.
COUNT
UNLAWFUL WITHHOLDING OF PUBLIC RECORDS
19. Plaintiff re -alleges and incorporates by reference the above numbered paragraphs I
through 18 as if fully alleged herein.
20. 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).
21. 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),
Fla. Stat.
22. Under the Public Records Act, "[e]very person who has custody of a public record
'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.
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.
23. Defendant, as an agency defined in Fla. Stat. Section 119.011(2), owes a duty to
provide access to the public of all records within its control pursuant to Fla. Stat. Section
119.01(1).
24. Lacking any exemption to the Public Records Law, Defendant has an express
statutory duty to make the public records available for inspection virtually on demand. See,
generally, Fla. Stat. § I 19.07(1)(a); Tribune Co. v. Cannella, 458 So.2d 1075 (Fla. 1984), appeal
dismissed sub issue nom., Deperte v. Tribune Co., 471 U.S. 1096 (1985).
25. While Defendant is authorized to impose a special service charge when the nature or
volume of public records to be inspected is such as to require extensive use of information
technology resources, or extensive clerical or supervisory assistance, or both, the charge must be
reasonable and based on the labor or computer costs actually incurred by the agency. See Board
ofCounty Commissioners of Highlands County v. Colby, 976 So. 2d 31 (Fla. 2d DCA 2008)
(special service charge applies to requests for both inspection and copies of public records when
extensive clerical assistance is required).
26. The Public Records Act requires Defendant to make the public records available
and/or respond to the request within a reasonable amount of time. See Town ojManalaan v.
Rechler, 674 So. 2d 789, 790 (Fla. 4th DCA), review denied, 684 So, 2d 1353 (Fla. 1996); State
v. Nebb, 786 So. 2d 602, 604 (Fla. 1st DCA 2001) . The only delay in producing public records
permitted under Chapter 119 "is the limited reasonable time to allow the custodian to retrieve the
34. Violation of Section 119.07, Fla. Stat. constitutes an irreparable public injury.
See Grapski v. City of Alachua, 31 So.3d 193,200 (Fla. DCA 2010)( holding that the mere
showing that the law has been violated constitutes an irreparable public injury.)
35. Plaintiff has a clear legal right to insist that Defendant perform its duties, which
includes permitting access to any public records within its control.
36. Plaintiff has no adequate remedy at law.
37. This matter must be set for immediate hearing. See Fla. Stat. Section 119.11(1).
38. All condition precedent to this action have occurred, been excused or waived.
ATTORNEYS' FEES
39. 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 1] 9.11, Florida Statutes;
(b) Declare that the Defendant's failure to provide Plaintiff with access to the
requested public records was unconstitutional and unlawful under Article 1, Section 24 of
the Florida Constitution and the Public Records Act;
(c) Order the Defendants to produce the requested records (upon payment of the
statutorily authorized fees);
(d) Award Plaintiff his reasonable attorney's fees, costs, and expenses incurred in this
7
action, as provided in Section 119.12, Florida Statutes; and
(e) Grant such further relief as the Court deems proper.
Respectfully submitted,
Dated: February 25. 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:
obovlecourtdocs@obovlelaw5rm.com
By: /s/ Giovani Mesa
Giovani Mesa, Esq.
Florida Bar#0086798
Rmesa(7obovlelawfirm.com
D1- 10 -201
060 1 z8W
IN THE CIRCUIT COURT OF THE
FIFTEENTH JUDICIAL CIRCUIT, IN
AND FOR PALM BEACH COUNTY,
FLORIDA
CHRISTOPHER F. OTIARE,
Plaintiff 50 2013 CA 01 8 0 9 5 XX)A9
V. Cease No.:
TOWN OF GULF STREAM,
Defendant.
TO: Joan K. Orthwein, Mayor
TOWN OF GULF STREAM
543 Palm Way
Gulf Stream, FL 33483
SUMMONS
IMPORTANT
A lawsuit has been filed against you. You have 20 calendar days after this summons is
served 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
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.
IMPORTANTE
Usted ba sido demandado legalmente. Tiene 20 dias, contados a partir del recibo de esta
notificacion, para contestar la 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 su respuesta por escrito, incluyendo el numero del caso y los nombres de las partes
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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 llamar a
una de las oficinas de asistencia legal que aparecen en la guia telefonica.
Si desea responder a la demanda por su cuenta, al mismo tiempo en que presenta 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).
lul' Y7�V:\►YY
Des Poursuites Judiciares ont ete entreprises contre vous. Vous avez 20 jours consecutifs
a partir de la date de 1'assignation de cette citation pour deposer une reponse ecrite a la plainte ci-
jointe aupres de cc 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. Il 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 on
service de reference d'avocats on a un bureau d'assistance juridique (figurant a 1'annuaire 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 ou a son avocat) nomme ci-dessous.
CHRISTOPHER F. O'HARE,
as Pro Se Plaintiff
2520 Avenue An Soleil
Gulf Stream, FL 33483
Telephone: (561) 350-7551
pinegd(aemail.com
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STATE OF FLORIDA
TO EACH SHERIFF OF THE STATE:
You are commanded to serve this summons and a copy of the Complaint in this lawsuit
on the above-named Defendant.
WITNESS MY HAND AND SEAL of said court.
DATE: December , 2013.
DEC 10 2011
Clerk of the Court
SHARON R. BOCK
Clerk & Comptroller
P.O. Box 4667
'KRISTIN BUTLERWest Palm Beach, Florida
By:
33402-4667
--
Deputy Clerk
3 of 3
SHpRUN R. BOCK
Clerk & Comptroller I
J
IN THE CIRCUIT COURT OF THE
FIFTEENTH JUDICIAL CIRCUIT IN AND FORVXMp
PALM BEACH COUNTY, FLORIDA O�V13CAOoOn G
CHRISTOPHER F. OTIARE,
Plaintiff,
V.
CASE NO.: COPY
RECEIVED FOR FILING
DEC 10 2013
TOWN OF GULF STREAM, SHARON R. BOCK
CLERK & COMPTROLLER
Defendant. CIRCUIT CIVIL DIVISION
VERIFIED COMPLAINT TO ENFORCE FLORIDA'S
PUBLIC RECORDS ACT AND FOR DECLARATORY,
INJUNCTIVE AND MONETARY RELIEF
The Plaintiff, Christopher F. OHare, ("Plaintiff'), without counsel as a Pro Se litigant,
hereby sues the Town of Gulf Stream, ("Defendant" or the "Town"), and as grounds therefore
alleges as follows:
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 (2012), (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 statutory'- 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 bebaK
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
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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(l)(a), Fla. Stat 4
9. The Defendant is an "agency" pursuant to Section 119.011(2), Florida Statutes.5
' Note § 119.07(1)(a), Fla. Stat.
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.
3 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.
Q 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
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10. The Defendant has a duty to permit the inspection, copying, and photography of
Defendant's public records by 2V person desiring to do so, at a reasonable time, under
reasonable conditions, and for reasonable costs. (Emphasis added). See § 119.07, Fla. Stat.; Art.
L § 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. 1, § 24, Fla. Const.; see also § 119.011(2),
purposes of this chapter, the Commission on Ethics, the Public Service Commission, and die 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 Government -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." Mait v. Florida Power &
Light Company, 372 So. 2d420,425 (Fla. 1979). See also Slate er rel. Davis v. klcbfrllan, 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 or 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
1st 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
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Fla. Stat s
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.9
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(lxa)11, §I19.07(3)(a)1-, Fla. Stat.; Art. 1, § 24, Fla. Const.13
Factual Background
16. On September 29, 2013 at 10:23 a.m., Plaintiff submitted a public records request via
e-mail to the custodian of records of the Town of Gulf Stream.
17. Specifically, Plaintiff sought to obtain:
Any photos of the Gulf Stream property of
Percy Orthwein in the Town's public record
(the "Photo Request"). Said Photo Request is attached hereto and specifically incorporated
'See Footnote "5".
9 See Footnote "T'.
10 Note § I I9.07(3)(a), Fla. Stat.
Any person shall have the right of access to public records for the purpose of m.ilcing photographs of the
record while such record is in the possession, custody, and control of the custodian of public records.
u u See Footnote "2".
1= See Footnote "10".
" See Footnote "1".
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herein as Exhibit A.
18. Some four (4) days after receipt of the Photo Request, on October 3, 2013, Defendant
sent a letter to Plaintiff via e-mail, also received October 3, 2013, stating in relevant part:
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 Photo Response"). Said Initial Photo Response is attached hereto and specifically
incorporated herein as Exhibit B.
19. Some forty-two (42) days after receipt of Plaintiffs Photo Request, Defendant sent a
letter to Plaintiff via e-mail on November 10, 2013, also received November 10, 2013, stating in
relevant part:
In response to the public records you have
requested in your email dated September 29, 2013,
that we acknowledged on October 3, 2013, be
advised that no such records exist. [emphasis
added]
(the "Final Photo Response"). Said Final Photo Response is attached hereto and specifically
incorporated herein as Exhibit C.
20. Upon information and belief; the requested public records are maintained by the
Defendant in electronic form.
21. As of the date of this complaint, some seventy-two (72) days after Plaintiffs original
public records request, Plaintiff has not received the requested public records.
22. Plaintiff has requested that the responsive documents for the public records requests
described herein be provided in electronic form and provided an E -Mail address to whom the
response was to be sent.
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23. The records requested by the Plaintiff are public records that are readily accessible to
Defendant.
24. All of the records being sought by Plaintiff are public records pursuant to Section
119.011(12)14, Florida Statutes.
25. There is no statutory exemption that applies to any of the requested public records
and the Defendant has cited none.
26. Violations of Section 119.07, Florida Statutes constitute an irreparable public
injuryl5
27. 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.
28. Section 119.1 1(1), Florida Statutes requires this matter be set for an immediate
hearing. is
29. All conditions precedent to this action have occurred or have been excused or waived.
30. Defendant's actions with respect to the public records requests 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
is 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 tmnmction
of official business by any agency.
u 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 injuryto 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.
ie See Footnote `3".
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injunctive relief is appropriate.
Count I — Unlawful Withholding of Public Records:
Unreasonable Delay for the Production of Photo in Electronic Form
31. Plaintiff re -alleges and incorporates by reference paragraphs 1 through 30 as if fully
alleged herein.
32. The Defendant's refusal to allow Plaintiff to inspect the requested public records
violates Article I, Section 24(a) of the Florida Constitution, Section 119.07(1)(a), Florida
Statutes17 and is inconsistent with well-established case law18
33. Section 119.01(2)(f), Florida Statutes provides, "An agency must provide a copy of
the record in the medium requested if the agency maintains the record in that medium."
34. "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." Dibrnte Co. v. Cannella, 458 So. 2d 1075, 1079 (Fla. 1984).
35. Despite Plaintiff s request of obtaining a copy of the requested photo in digital (or
electronic) form, some seventy-two (72) days after the Defendant received Plaintiffs original
Photo Request, Defendant still has not offered to provide same to Plaintiff under any terms.
36. The above described seventy-two (72) day delay is unreasonable and in violation of
" See Footnote "2".
" See Bell v. Kendrick 6 So. 868 (Fla. 1889) (public records belong "to the public office and not to the officer.");
See also State ex .rel. Davidson v. Couch 156 So. 297 (Fla. 1934); See also City of Gainesville v. State ex. rel.
International Association of Fire Fighters Local No 2157 298 So.2d 478 (Ist DCA 1974) (records that "are made by
a city employee in the normal course of conducting the city's business are materials which are open to the citizens of
this state for inspection."); See also State ex rel. Veale v. City of Boca Raton 353 So. 2d 1194 (Fla 4th DCA 1977)
(the Public Records Act "requires the public official with custody of a public record to disclose it to any member of
the public, including the media, who wishes to inspect it. Non -disclosure is permitted only if there is an exemption
provided" by statute.); See also News -Press Publishing Co. v. Gadd. 388 So. 2d 276, 278 (Fla 2d DCA 1980)
("Absent a statutory exemption, a court is not free to consider public policy questions regarding the relative
significance of the public's interest in disclosure and the damage to an individual or institution resulting from such
disclosure.").
7of11
the Public Records Act.
Count H — Automatic Delay:
the Production of Photo in Electronic Form
37. Plaintiff re -alleges and incorporates by reference paragraphs 1 through 36 as if fully
alleged herein.
38. In its Initial Photo Response, Defendant imposed an automatic delay by refusing to
respond except "within three business days," even though the Photo Request was received four
(4) days prior to the date appearing on the Defendant's Initial Photo Response and the requested
records were readily available to the Defendant at that time.
39. The Defendant's imposition of an automatic delay has no statutory basis and is,
therefore, in violation of the Public Records Act. 19
Attorneys' Fees
40. 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.
41. Plaintiff has retained counsel in this matter only for the limited purpose of assisting in
the preparation of this complaint, however, he reserves the right to retain counsel in this matter
19 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 Graosld v. City of Alachua 31
So.3d 193 (Fla App., 2010); See also R=Werv. Town of Manalaoan. No. CL 94-2724 AD (Fla. 15th Cir. CL
November 21, 1994), afrmeit 674 So. 2d 789, 790 (Fla. 4th DCA 1996), review denier, 684 So. 2d 1353 (Fla.
1996); See also State v. Webb. 786 So.2d 602 (Fla App., 2001).
8ofII
for additional purposes and therefore asserts his statutory claim to attorney's fees and expenses
for the preparation of this complaint and any additional purposes for which attorney's fees and
expenses are incurred in this matter.
Relief Requested
WHEREFORE, Plaintiff prays this Court:
(a) Set an immediate hearing pursuant to Section 119.11, Florida Statutes;20
(b) Declare that the Defendant's failure to provide Plaintiff with access to the
requested public records was unconstitutional and unlawful under Article 1, Section 24 of
the Florida Constitution21 and the Public Records Act;"
(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 its original
electronic form;
(e) Enjoin the Defendant from denying access to records which are subject to the
Public Records Act: 23
(f) Award Plaintiff his reasonable attorney's fees, costs, and expenses incurred in this
20 See Footnote "3".
21 See Footnote "1".
22 See Footnote `2"
23 Note Government-In-The-Smishine-Manual page 172.
Injunctive relief may be 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 demonstmte the high likelihood, in not the certainty, that such unlawful conduct
will continue and the urgent need for injunctive relief from this court.
9ofII
action, as provided in Section 119.12, Florida Statutes;'' -`t and
(g) Grant such further relief as the Court deems proper.
Dated. t✓ � I () 2013
'd See Verified Complaint at "40".
10 of 11
Respectfully submitted,
PREPARED WITH ASSISTANCE OF
COUNSEL
F. O'HARE, as Pro Se
Plaintiff
2520 Avenue Au Soleil
Gulf Stream, FL 33483
Telephone: (561) 588-8920
pinegdna.Qmail.com
****I- i i ' Z 0 I t
CASE NUMBER: 2014CA000894 DIVISION: AB ****
Filing # 9507465 Electronically Filed 01/24/2014 10:53:26 AM I
3, 40 ,
050 ZPq
IN THE CIRUIT COURT OF THE
FIFTEENTH JUDICIAL CIRCUIT, IN C 7
AND FOR PALM BEACH COUNTY, `C
FLORIDA
CHRISTOPHER F. O'HARE,
Plaintiff,
V.
TOWN OF GULF STREAM,
Defendant.
THE STATE OF FLORIDA
To Each Sheriff of the State:
Case No.:
SUMMONS
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 Ryan L.
Witmer, plaintiff's 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 Janui JAN 24 2014
Clerk of the Court
Josie Lucce
0aN SHARON R. BOCK
F F �� Clerk & Comptroller
P.O. Box 4667
West Palm Beach, Florida
33402-4667
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
rwitmert7a,oboylelawfirm.com
By: /s/ Ryan L. Witmer
Ryan L. Witmer, Esq.
Florida Bar #0107563
IN THE CIRCUIT COURT OF THE
FIFTEENTH JUDICIAL CIRCUIT IN AND FOR
PALM BEACH COUNTY, FLORIDA
CHRISTOPHER F. O'HARE,
Plaintiff,
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, Christopher F. O'Hare, ("Plaintiff'), by and through the undersigned
counsel, hereby sues the Town of Gulf Stream, ("Defendant" or the "Town"), and as grounds
therefore alleges as follows:
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.
' Note § 119.07(lxa), 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 1 19.011(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 § 119.1 Ill), 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 § 119.011(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 mnr 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.
6 Note Govemment-In-The-Sunshine-Manua12012 Edition page 144.
The term "reasonable conditions" as used in s. I I9.07(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 e r 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.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 it 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_
1 st 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).
r Note NCAA v. Associated Press, 18 So. 3d 1201, 1212 (Ist 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.
3of10
Fla. Stat s
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.9
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.to
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.la
Factual BackEround
16. On October 29, 2013, Plaintiff, submitted a public records request via e-mail to the
Defendant.
17. Among other public records, Plaintiff sought to obtain:
Any and all documents, files, photos, folders or
other material in digital form that can be
reasonabli, considered a public record which is
located on ani, and all computers in the personal
possession of or the personal control of, Mayor
Joan Ortizwein.
s See Footnote "5'.
9 See Footnote "2".
10 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".
1'- See Footnote "10".
13 See Footnote "I".
4 of 10
(the "Request"). Said Request is attached hereto and specifically incorporated by reference
herein as Exhibit A.
18. One day after Defendant received the Request, on October 30, 2013, Defendant sent a
letter to Plaintiff via e-mail, stating in relevant part:
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
by reference herein as Exhibit B.
19. Seventy-two days after Defendant sent the Initial Response, on January 10, 2014,
Defendant's custodian of records sent a letter to Plaintiff via e-mail, stating in relevant part:
This letter is attached to an email that provides
you with the full responsive production of public
records requested in your email dated October 29,
2013.
(the "Second Response"). Said Second Response is attached hereto and specifically incorporated
by reference herein as Exhibit C.
20. Attached to the Second Response were multiple e-mails which were the only
responsive documents provided to Plaintiff in connection with the Request.
General Alleeations Common to All Counts
21. The records being sought by Plaintiff are public records pursuant to Section
119.011(12)14, Florida Statutes.
"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.
5of10
22. There is no statutory exemption that applies to any of the requested public records
and the Defendant has cited none.
23. The Defendant's refusal to allow Plaintiff to inspect the requested public records
violates Article I, Section 24(a) of the Florida Constitution, Section I I9.07(1)(a), Florida
Statutes16 and is inconsistent with well-established case lawls.
24. Violations of Section 119.07, Florida Statutes constitute an irreparable public
injuryl7
25. 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.
26. Section 119.11 (1), Florida Statutes requires this matter be set for an immediate
hearing.l8
27. All conditions precedent to this action have occurred or have been excused or waived.
28. Defendant's actions with respect to the public records requests discussed herein and
"See Footnote "2".
is See Bell v. Kendrick 6 So. 868(Fla. 1889) (public records belong "to the public office and not to the officer.");
See also Stite ex rel Davidson v Couch 156 So. 297 (Fla. 1934); See also City of Gainesville v State ex rel
International Association ofFire Fighters Local No 157 298 So.2d 478 (1st DCA 1974) (records that "are made by
a city employee in the normal course of conducting the city's business are materials which are open to the citizens of
this state for inspection."); See also State ex rel. Veale v City ofBocaR ton 353 So. 2d 1194 (Fla. 4th DCA 1977)
(the Public Records Act "requires the public official with custody of public record to disclose it to any member of
the public, including the media, who wishes to inspect it. Non -disclosure is permitted only if there is an exemption
provided" by statute.); See also News -Press Publishine Co v Gadd 388 So. 2d 276, 278 (Fla. 2d DCA 1980)
("Absent a statutory exemption, a court is not free to consider public policy questions regarding the relative
significance of the public's interest in disclosure and the damage to an individual or institution resulting f om such
disclosure.").
"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.
1° See Footnote "3".
6of10
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 Public Records: Unreasonable Delav
29. Plaintiff re -alleges and incorporates by reference paragraphs 1 through 28 as if fully
alleged herein.
30. "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).
31. The Defendant delayed some Seventy-two days before providing any of the requested
records to Plaintiff.
32. The above described Seventy-two day delay is unreasonable and constitutes a denial
of access under the Public Records Act.
Count II — Unlawful Withholding of Records: Not All Records Produced
33. Plaintiff re -alleges and incorporates by reference paragraphs 1 through 32 as if fully
alleged herein.
34. Upon information and belief, Defendant did not produce all records responsive to the
Request.
35. Defendant has made it clear that no further records will be provided in response to the
Request.
36. 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.
7of10
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 Reouested
WHEREFORE, Plaintiff prays this Court:
(a) Set an immediate hearing pursuant to Section 119.11, Florida Statutes;ta
(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 Constitution220 and the Public Records Ac[?t
(c) Order the Defendants to allow the inspection, copying and photographing of the
requested records (upon payment of the statutorily authorized fees, if any);
(d) Order the Defendants to provide a copy of the requested records in electronic
..nlu.
(e) Enjoin the Defendant from denying access to records which are subject to the
Public Records Act: 22
"See Footnote "3".
20 See Footnote "I".
21 See Footnote "211.
"Note Govemment-tn-The-Sunshine-Manual page 172.
Injunctive relief may be 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
8of10
(0 Award Plaintiff his reasonable attorney's fees, costs, and expenses incurred in this
action, as provided in Section 119.12, Florida Statutes;23 and
(g) Grant such further relief as the Court deems proper.
Respectfully submitted,
Dated: January 21, 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
rwitmer(a?obovlelawfirm.com
By: /s/ Rvan L. Witmer
Ryan L. Witmer, Esq.
Florida Bar #0107563
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.
2' See Verified Complaint at "98".
9of10
CHRISTOPHER F. ORARE,
Plaintiff;
V.
TOWN OF GULF STREAM,
Defendant.
TO: Joan K. Orthwein, Mayor
TOWN OF GULF STREAM
543 Palm Way
Gulf Stream, FL 33483
21-20(N
9:SSvM
IN THE CIRCUIT COURT OF THE C P5
FIFTEENTH JUDICIAL CIRCUIT, IN
AND FOR PALM BEACH COUNTY, y
FLORIDA
602013 CA 01010 0 XXXXNB
Case No.:
SUMMONS
IMPORTANT
A lawsuit has been filed against you. You have 20 calendar days after this summons is
served 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
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 (fisted 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
"PlaintiMPlaintiff s Attorney" named below.
IMPORTANTE
Usted ha sido demandado legalmente. Tiene 20 dias, contados a partir del recibo de esta
notificacion, para contester la demanda adjunta, por escrito, y presentarla ante este tribunal. Una
Ilamada telefoncia no to protegera. Si usted desea que el tribunal considere su defensa, debe
presentar su respuesta por escrito, incluyendo el numero del caso y los nombres de las partes
1 of 3
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 hamar a
una de las oficinas de asistencia legal que aparecen en la guia telefonica.
Si desea responder a la demanda por su cuenta, al mismo tiempo en que presenta 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).
IMPORTANT
Des Poursuites Judiciares ont ete entreprises contre vous. Vous avez 20 jours consecutifs
a partir de la date de 1'assignation de cette citation pour deposer une reponse ecrite a la 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 nominees 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 ]a cause ainsi
que votre salaire, votre argent, et vos biens peuvent etre saisis par la suite, sans aucun preavis
ulterieus du tribunal. II y a d'autres obligations juridiques et vous pouvez requerir les services
immediats dun avocat. Si vous ne connaissez pas d'avocat, vous pourriez telephoner a un
service de reference d'avocats ou a un bureau d'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 au "Plaintiff/Plaintiffs Attorney" (Plaignant ou a son avocat) nomme ci-dessous.
CHRISTOPHER F. OHARE,
as Pro -Se Plaintil}f
Christopher 'Hare
2520 Avenue An Soleil
Gulf Stream, FL 33483
Telephone: (561) 350-7551
pineedAgmail.com
2 of 3
t_ s2 8.11
TO EACH SHERIFF OF THE STATE:
You are commanded to serve this summons and a copy of the Complaint in this lawsuit
on the above-named Defendant.
WITNESS MY HAND AND SEAL of said court.
DATE: December Intsi!
19: Bo cit
Clerk of the Court
Chrstinarii, Leahan
Deputy Clerk
�. aocK
c �omptroiler
P.O. Eoa4667
West Palm Beach, Florida!
33402-4667
3 of 3
IN THE CIRCUIT COURT OF THE
FIFTEENTH JUDICIAL CIRCUIT IN AND FOR
PALM BEACH COUNTY, FLORIDA
CHRISTOPHER F. O'HARE,
%12Q13 AA Q 181 U 0 XXXX
Plaintiff; CASE NO.:
COPY
V. RECEIVED FOR FILING
TOWN OF GULF STREAM, r"� j 0 M3
Defendant. SNA9014 R DOCK
CLERK A COW-FROLLER
(�f tl r•i i-rri n: fah/ ";.�`,�I
VERIFIED COMPLAINT TO ENFORCE FLORIDA'S
PUBLIC RECORDS ACT AND FOR DECLARATORY
INJUNCTIVE AND MONETARY RELIEF
The Plaintiff, Christopher F. O Hare, ("Plaintiff'), without counsel as a Pro Se litigant,
hereby sues the Town of Gulf Stream, ("Defendant" or the "Town"), and as grounds therefore
alleges as follows:
1. This action concerns the Defendant's violation of Plaintiff's civil rights pursuant to
Article I, Section 24 of the Florida Constitution and Chapter 119, Florida Statutes (2012), (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.
I of 11
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 Statutesa.
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(l)(a), Fla. Stat.d
9. The Defendant is an "agency" pursuant to Section 119.011(2), Florida Statutes.5
Note § 119.07(1)(a), FLa. Stat
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.
3 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.
See Footnote "2".
'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
2of11
10. The Defendant has a duty to permit the inspection, copying, and photography of
Defendant's public records by air 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.
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),
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.
G Note Goverrunent-In-7[he-Sunshine-Manua12012 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." {Fait v. Florida Poirer &
Light Compartg 372 So. 2d 420, 425 (FLa. 1979). See also State er rel Davis v. MUTIllan, 38 So. 666 (Fla.
1905); and Tribune Company v. Cannella, 458 So. 2d 1075, 1078 (Fla. 1984), appeal dismissed sub nonc,
DePerte 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 anile or condition of inspection which operates to
restrict or circumvent a person's right of access. AGO 75-50. "'Tile 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.
1st DCA 2001) (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
3of11
Fla. Stat s
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 9
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. 19
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. L § 24, Fla. Const. 13
Factual Background
16. On September 29, 2013 at 10:21 a.m., Plaintiff submitted a public records request via
e-mail to the custodian of records of the Town of Gulf Stream.
17. Specifically, Plaintiff sought to obtain a:
Any photos of the Gulf Stream School
in the Tome's public record
(the "Photo Request"). Said Photo Request is attached hereto and specifically incorporated
'See Footnote "5".
9 See Footnote "2".
10 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".
1' See Footnote "10".
" See Footnote "I".
4ofII
herein as Exhibit A.
18. Some four (4) days after receipt of the Photo Request, on October 3, 2013, Defendant
sent a letter to Plaintiff via e-mail, also received by Plaintiff on October 3, 2013, stating in
relevant part:
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 "Photo Response"). Said Photo Response is attached hereto and specifically incorporated
herein as Exhibit B.
19. Plaintiff has requested that the responsive documents for the public records requests
described herein be provided in electronic form and provided an E -Mail address to whom the
response was to be sent.
20. As of the date of this complaint, some seventy-two (72) days after Plaintiffs original
public records request, Plaintiff has not received the requested public records.
21. Upon information and belief; the requested public records are maintained by the
Defendant in electronic form.
22. The records requested by the Plaintiff are public records that are readily accessible to
Defendant.
23. All of the records being sought by Plaintiff are public records pursuant to Section
119.011(12)14, Florida Statutes.
is Note § 119.011(12), Fla Stat
"Public records" means all documents, papers, letters, maps, books, tapes, photographs, films, sound
recordings, data processing soRware, 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.
5of11
24. There is no statutory exemption that applies to any of the requested public records
and the Defendant has cited none.
25. Violations of Section 1] 9.07, Florida Statutes constitute an irreparable public
injury15
26. 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.
27. Section 119.11(l), Florida Statutes requires this matter be set for an immediate
hearing.ls
28. All conditions precedent to this action have occurred or have been excused or waived.
29. Defendant's actions with respect to the public records requests 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 Withholdinn of Public Records:
Unreasonable Delay for the Production of Photos in Electronic Form
30. Plaintiff re -alleges and incorporates by reference paragraphs 1 through 29 as if fully
alleged herein.
31. The Defendant's refusal to allow Plaintiff to inspect the requested public records
violates Article 1, Section 24(a) of the Florida Constitution, Section 119.07(1)(a), Florida
"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 maldng a request,
nondisclosure prevents access to the information and is an injury- not ordinarily compensable in damages.
16 See Footnote "T'
6ofII
Statutes17 and is inconsistent with well-established case law's
32. Section 119.01(2)(1), Florida Statutes provides, "An agency must provide a copy of
the record in the medium requested if the agency maintains the record in that medium."
33. "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." Tfibune Co. v. Cannella, 458 So. 2d 1075, 1079 (Fla. 1984).
34. Despite Plaintiff s request of obtaining a copy of any photos of the referenced Gulf
Stream School in digital (or electronic) form, some seventy-two (72) days after the Defendant
received Plaintiffs original Photo Request, Defendant still has not offered to provide same to
Plaintiff under any terms.
35. The above described seventy-two (72) day delay is unreasonable and in violation of
the Public Records Act.
Count II—Automatic Delay:
Photos of Gulf Stream School
36. Plaintiffre-alleges and incorporates by reference paragraphs 1 through 35 as if fully
alleged herein.
37. In its Photo Response, Defendant imposed an automatic delay by refusing to respond
" See Footnote "2".
18 See Bell v. Kendrick 6 So. 868 (Fla. 1889) (public records belong "to the public office and not to the officer.");
See also State ex .rel. Davidson v. Couch 156 So. 297 (Fla. 1934); See also City of Gainesville v. State ex. rel.
International Association of Fire Fighters Local No 2157 298 So.2d 478 (1st DCA 1974) (records that "are made by
a city employee in the normal course of conducting the city's business are materials which are open to the citizens of
this state for inspection."); See also State ex rel. Veale v. City of Boca Raton 353 So. 2d 1194 (Fla. 4th DCA 1977)
(the Public Records Act "requires the public official with custody of a public record to disclose it to any member of
the public, including the media, who wishes to inspect it Non -disclosure is permitted only if there is an exemption
provided" by statute.); See also News -Press Publishing Co v Grind_ 388 So. 2d 276, 278 (F7a. 2d DCA 1980)
("Absent a statutory exemption, a court is not free to consider public policy questions regarding the relative
significance of the public's interest in disclosure and the damage to an individual or institution resulting from such
disclosure.").
7of11
except `within three business days," even though the Photo Request was received four (4) days
prior to the date appearing on the Defendant's Photo Response and the requested records were
readily available to the Defendant at that time.
38. The Defendant's imposition of an automatic delay has no statutory basis and is,
therefore, in violation of the Public Records Act. 19
Attorneys' Fees
39. 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.
40. Plaintiff has retained counsel in this matter only for the limited purpose of assisting in
the preparation of this complaint, however, he reserves the right to retain counsel in this matter
for additional purposes and therefore asserts his statutory claim to attorney's fees and expenses
for the preparation of this complaint and any additional purposes for which attorney's fees and
expenses are incurred in this matter.
" 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 Gransld v. City of Alach n 31
So.3d 193 (Fla App., 2010); See also Rechler v. Town of Marsala n No. CL 94-2724 AD (Fla. 15th Cir. CL
November 21, 1994), affirmed 674 So. 2d 789, 790 (F7a. 4th DCA 1996), review denied, 684 So. 2d 1353 (Fla.
1996); See also State v. Webb. 786 So.2d 602 (Fla. App., 2001).
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Relief Reauested
WHEREFORE, Plaintiff prays this Court:
(a) Set an immediate hearing pursuant to Section 119.11, Florida Statutes;20
(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'' -t and the Public Records Act;"
(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 its original
electronic form;
(e) Enjoin the Defendant from denying access to records which are subject to the
Public Records Act: 23
(f) Award Plaintiff his reasonable attorney's fees, costs, and expenses incurred in this
action, as provided in Section 119.12, Florida Statutes;24 and
(g) Grant such further relief as the Court deems proper.
30 See Footnote "3".
v See Footnote "1".
"See Footnote "2".
23 Note Government -In -The -Sunshine -Man ml page 172.
Injunctive relief may be available upon an appropriate showing for a violation of Ch 119, F.S. See Daniels
v. Bryson, 548 So. 2d 679 (FLL 3d DCA 1989) (injunctive relief appropriate where there is a demonstrated
pattern of noncompliance with the Public Records Act, together with a showing of Rehhood 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
24 See Verified Complaint at "39".
9of11
Dated: December 10 2013
10 of 11
Respectfully submitted,
PREPARED WITH ASSISTANCE OF
COUNSEL
CHRISTOPHER F. O`FIARE, as Pro Se
Plaintiff
Christopher. .O3Hare
2520 Avenue Au Soleil
Gulf Stream, FL 33483
Telephone: (561) 588-8920
pinead@wnaii.com
**** CASE NUMBER: 2014CA000818 DIVISION: AG ****
Filing 9 9429503 Electronically Fied 01/22/2014 03:12:52 PM
CHRISTOPHER F. O'HARE,
Plaintiff,
V.
TOWN OF GULF STREAM,
Defendant.
THE STATE OF FLORIDA
To Each Sheriff of the State:
D 11 214 -Z.a
2- :go ery
C P5t 12,91
IN THE CIRUIT COURT OF THE
FIFTEENTH JUDICIAL CIRCUIT, IN `
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:
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 Ryan L.
Witmer, 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 January 22, 2014 JAN 23 2014
Clerk of the Court
By: l
Deputy Clerk
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
rwitmerRobovlelawfirm com
By: /s/ Rvan L. Witmer
Ryan L. Witmer, Esq.
Florida Bar #0107563
SHARON R. BOCK
Clerk & Comptroller
P.O. Box 4667
West Palm Beach, Florida
Filing # 9429503 Electronically Filed 01/22/2014 03:1252 PM
IN THE CIRCUIT COURT OF THE
FIFTEENTH JUDICIAL CIRCUIT IN AND FOR
PALM BEACH COUNTY, FLORIDA
CHRISTOPHER F. O'HARE,
Plaintiff,
V.
TOWN OF GULF STREAM,
Defendant.
CASE NO.:
The Plaintiff, Christopher F. O'Hare, ("Plaintiff'), by and through the undersigned
counsel, hereby sues the Town of Gulf Stream, ("Defendant" or the "Town"), and as grounds
therefore alleges as follows:
I. 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 (2012), (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. Coast
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(lXa), 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 Statute -S3.
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. 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 shalt 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
tat
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 § l 19.011(2), Fla. Star.
"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
2of1O
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 costs6. (Emphasis added). See § 119.07, Fla. Stat.; Art
1, § 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.
e Note Government -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 er rel. Davis v. McMillan, 38 So. 666 (FhL
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 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).
r Note NCAA v. Associated Press 18 So. 3d 1201,1212 (Ist 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 Jaw
might have on interstate commerce clearly does not outweigh the goal of ensuring open government
3of10
Fla. Slats
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. Stats
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.lo
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(l)(a)", §119.07(3)(a)w, Fla. Stat; Art. 1, § 24, Fla. Constrs
Town.
Factual Background
16. On September 4, 2013, Plaintiff; submitted a public records request via e-mail to the
17. Specifically, Plaintiff sought to obtain:
The first three pages of the Permit issued for the
secondary building structure located adjacent to
the South property line of the residential structure
of Parcel Number 20434604220000450 also
known as 2550 Avenue Au Soleil in Gulf stream,
Florida.
' See Footaote "5".
' See Footnote "2".
i0 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 ofpublic records.
u See Footnote'?".
n See Footnote "10".
"See Footnote "1"
4of10
(the "Initial Requesf'). Said Initial Request is attached hereto and specifically incorporated
herein as Exhibit A.
18. Two days after receipt of the Initial Request, on September 6, 2013, Defendant's
custodian of records sent a letter to Plaintiff via E -Mail, stating in relevant part:
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. Sixty days after Defendant sent the Initial Response, on November 5, 2013,
Defendant's custodian of records sent a letter to Plaintiff via E -Mail, stating in relevant pad:
Records associated with this address, 2550 Avenue
Au Soleil, were destroyed pursuant to the Town's
destruction schedule on January 31, 2013,
documentation of which can be provided for von at
your request
(emphasis added) (the "Second Response"). Said Second Response is attached hereto and
specifically incorporated herein as Exhibit C.
20. On December 4, 2013, in an effort to obtain copies of the above stated documentation
of destruction, Plaintiff submitted another public records request via E -Mail.
21. Specifically, Plaintiff sought to obtain:,
Any and all records identifying the destruction or
other means of disposition of records that would
have been responsive to my Public Records
Request which is copied along with your previous
response below.
(the "Follow Up Request"). Said Follow -Up Request is attached hereto and specifically
incorporated herein as Exhibit D.
5of10
22. The Follow -Up Request contained copies of the Initial Request, the Initial Response,
and the Second Response.
23. As of the date of this Verified Complaint, a total of 48 days have passed since
Plaintiff made the Follow -Up Request and yet no responsive documents have been provided.
24. In fact, to date, no response whatsoever to the Follow Up Request has been received
by Plaintiff.
Count I —Unlawful Withholdine of Public Records
25. The records being sought by Plaintiff are public records pursuant to Section
119.011(12)14, Florida Statutes.
26. Plaintiff requested the responsive documents be provided in electronic form and
provided an E -Mail address to whom the response was to be sent.
27. There is no statutory exemption that applies to the requested public records and the
Defendant has cited none.
28. Violations of Section 119.07, Florida Statutes constitute an irreparable public
injury15.
29. 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.
"Note § 119.011(12), Fla. Stat
'Public records" means all documents, papers, letters, maps, books, tapes, photographs, Elms, sound
recording's, 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.
rs 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.
6of10
30. Section 119.1 1(1), Florida Statutes requires this matter be set for an immediate
hearing.la
31. The requested document is a public record that is readily accessible to Defendant.
32. "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).
33. The Defendant's continuing delay in the production of the requested public records,
which currently stands at 48 days as of the writing of this Verified Complaint, is an unreasonable
delay which constitutes a denial of access to public records in violation of the Public Records
Act.
34. All conditions precedent to this action have occurred or have been excused or waived.
35. 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.
Attorneys' Fees
36. The Public Record Act provides that "fi]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.
"See Footnote "3„
7of10
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;ls
(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
(1) 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.
17 See Footnote "3".
1" See Footnote "1".
"See Footnote' 2".
20 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
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 bean adequate remedy since mandemns would not prevent future harm).
Defendant's actions clearly demonstrate the high likelihood, in not the certainty, that such unlawfid.conduct
will continue and the urgent need for injunctive relief from this court.
M"
Respectfully submitted,
Dated: January 21, 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 90107563
9of10
v
**** CASE NUMBER 2014CA000720 DMSION. AI ****
Filing # 9343109 Electronically Filed 01/20/2014 052:51 PM
CHRISTOPHER F. O'HARE,
Plaintiff,
V.
TOWN OF GULF STREAM,
WILLIAM H. THRASHER, JR.,
Defendants.
THE STATE OF FLORIDA:
To Each Sheriff of the State:
dl- Z3 - Zt
):10 P"
IN THE CIRUIT COURT OF THE
FIFTEENTH JUDICIAL CIRCUIT, IN
AND FOR PALM BEACH COUNTY,
FLORIDA cP5 e (/,Y,
Case No.:
SUMMONS
YOU ARE COMMANDED to serve this summons and a copy of the complaint in this
law -suit on defendant:
JAN 212014
Dated:
Clerk of the Circuit Court
By: O�L v
As Deputy Clerk
Belva Hamilton
William H. Thrasher, Jr.
100 Sea Road
Gulf Stream, FL 33483
EMPORTANT
SHARON R. BOCK
Clerk & Comptroller
P.O. Box 4667
West Palm Beach, Florida
33402-4667
A lawsuit has been filed against you. You have 20 calendar days after this summons is
served 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
1 of 3
and the names of the parties, must be filed if you want the court to hear your side of the case. If
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 yoursel% 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.
IMPORTANTE
Usted ha sido demandado legalmente. Tiene 20 dias, contados a partir del recibo de esta
notificacion, para contestar la demanda adjunta, por escrito, y presentarla ante este tribunal. Una
ilamada telefoncia no to protegera. Si usted desea que el tribunal considere so defensa, debe
presentar so respuesta por escrito, incluyendo el humero del caso y los nombres de las partes
interesadas. Si usted no contests In 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 on abogado, puede llamar a
una de las oficinas de asistencia legal que aparecen en la guia telefonica.
Si desea responder a la demanda por su cuenta, al mismo tiempo en que presenta so
respuesta ante el tribunal, debera usted enviar por correo o entregar una copia de so respuesta a la
persona denominada abajo tomo "Plaintiff/Plaintiffs Attorney" (Demandante o Abogado del
Demandante).
IMPORTANT
Des Poursuites Judiciares ont ete entreprises contre vous. Vous avez 20 jours consecutifs
a partir de la date de Passignation de cette citation pour deposer one 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 nominees 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 biers peuvent etre saisis par la suite, sans aucun preavis
ulterieus du tribunal. Il y a d'autres obligations juridiques et vous pouvez requerir les services
immediate d'un avocat. Si vous ne connaissez pas d'avocat, vous pourriez telephoner a on
service de reference d'avocats on a on bureau d'assistance juridique (figurant a Pannuaire de
telephones).
Si vous choisissez de deposer vous-meme une reponse ecrite, it vous faudra egalement,
on meme temps que tette 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 fnr Plaintiff
1286 West Newport Center Drive
Deerfield Beach, FL 33442
Telephone: (954) 574-6885
Facsimile: (954) 360-0807
Email: rwitmer(aloboylelaw6rm com
By: /s/ Ryan L. Witmer
Ryan L. Witmer, Esq.
Florida Bar #0107563
3 of 3
IN THE CIRCUIT COURT OF THE
FIFTEENTH JUDICIAL CIRCUIT IN AND FOR
PALM BEACH COUNTY, FLORIDA
CHRISTOPHER F. O'HARE,
Plaintiff,
VA
TOWN OF GULF STREAM,
WILLIAM H. THRASHER, JR,
individually,
Defendants.
CASE NO.:
COMPLAINT WITH DEMAND FOR JURY TRIAL
CHRISTOPHER F. O'HARE ("Plaintiff' or "O'Hare"), by and through the undersigned
counsel, hereby sues the TOWN OF GULF STREAM, (the "Town"), and WILLIAM H.
THRASHER, JR., ("Thrasher") individually, (hereinafter collectively referred to as the
"Defendants") and as grounds therefore alleges the following:
THE PARTIES, JURISDICTION. AND VENUE
Plaintiff is a Florida citizen who resides at 2520 Place Au Soleil in the Town of
Gulfstream, which is located Palm Beach County.
2. The Defendant Town is a duly established municipality under the laws of Florida
located within Palm Beach County, and therefore subject to the personal jurisdiction of this
Court.
3. Defendant Thrasher is the Manager for the Town of Gulf Stream and resides and
works in Palm Beach County, and is therefore subject to the personal jurisdiction of this Court.
4. Jurisdiction is appropriate under F.S. § 790.33(3)(f) and F.S. § 26.012(1), (3)
because injunctive relief is requested.
5. Venue is appropriate because all parties reside or are seated in Palm Beach
County.
COUNT
Violation of 790.33 & Renuest for Iniunction and Declaratory Relief that Municipal Policy is
Preempted by State Law and Damages
6. On October 14, 2013, O'Hare submitted a building application to the Town for
zoning review and approval, a condition required before said application would be allowed to be
submitted to Delray Beach, (surrogate for Florida Building Code enforcement for the Town) to
construct a shooting range backstop and a shooting bench. The packet attached to the application
gave the municipality details of the proposed work. The application, including the packet
attached to it, is attached hereto and incorporated by reference herein as Exhibit A. The packet
contained elaborate and precise drawings of O'Hare's home, the proposed location of the two
structures, drawings of the proposed bench and backstop, and the energy values of select firearm
cartridges.
7. On or about October 17, 2013, Town Clerk Rita Taylor sent O'Hare's attorney—
Lou Roeder, Esq. —a facsimile letter by the Town Manager, William Thrasher, denying
O'Hare's request. The October 17, 2013 letter is attached hereto and incorporated by reference
herein as Exhibit B.
8. In that missive, Thrasher elaborated on O'Hare's denial stating, "(A]lthough the
Town does not regulate the possession or use of firearms or ammunition, the use you request is
not a permitted use within the residential zoning classification in which your property is located.
Your request for a permit is, therefore, denied."
9. On or about October 18, 2013, O'Hare submitted another construction application
to the Town for zoning review and approval. The request was partially similar but substantially
2
different than O'Hare's original permit request. O'Hare excluded any reference to a shooting
range, eliminated the previously proposed shooting bench and sought only to install a ballistic
backstop, target holder, and the addition of two Rhapis excels, lady palms plants to benefit the
appearance of the backstop. The October 18, 2013 application and attached packet are attached
hereto and incorporated by reference herein as Exhibit C.
10. The application was resubmitted with the above changes and O'Hare decided to
substantially reduce the amount of proposed construction to only those items he felt essential to
the safe and diligent use of a firearm on his private property.
11. On or about October 23, 2013, O'Hare received yet another missive from
Thrasher denying his new request. Thrasher directed O'Hare to the previous letter for an
explanation of denial. The October 23, 2013 denial is attached hereto and incorporated herein as
Exhibit D. Town Manager Thrasher wilfully and knowingly, under color of law, regulated part
of the field of firearms and ammunition when he pretextually denied O'Hare's building permit
because he wanted to prevent O'Hare from discharging or otherwise using firearms on his
private land.
12. O'Hare understood Town Manager Thrasher's letter as sending a clear message,
that O'Hare is not permitted to use firearms in his backyard in the Town; that O'Hare should not
expect the Town of Gulf Stream to relinquish the Town's authority to regulate its own land use
to any other power.
13. Thrasher's "possession or use of firearms or ammunition" language in his October
18, 2013, letter shows that he had knowledge of the firearm preemption law in Florida because
that law uses similar, if not identical language. Moreover, Thrasher was unable to cite a single
Town law that otherwise prohibited the structure that O'Hare proposed. Thrasher candidly and
knowingly denied O'Hare his permits based on his desire to prevent the recreational use of
firearms in his Town, regardless of the willingness O'Hare exhibited to exercise care and safety,
as evidenced by his desire to build a ballistic backstop — said denialis in direct violation to the
preemption of Sec. 790.33 Fla. Stat.
14. Under Town Code Chapter 70, Art. 111, single-family residential uses are
regulated. The only uses permitted are "single family dwellings" under § 70-47 and "telephonic
transactions and communications" under § 70-49(b). Prohibited Uses under § 7049 are solely
cognizable as activities relating to structures, not the structures themselves. Thrasher's language
in the denial of both applications describes the reason for the denial as, "the use you request is
not a permitted use..." In essence, Thrasher was directing his denial solely towards the firearm -
related activity surrounding O'Hare's proposed structure.
15. Thrasher's statutoryjob description is administrator of the Town's Code of
Ordinances, and the Town's Chief executive, as described in detail in Chapter 2 of the Town
Code. Thrasher is also responsible for numerous low-level zoning reviews under Chapter 66 of
the Town Code including issuing permits for construction under Town Code § 66-101.
16. During the course of this ordeal, O'Hare had to shoulder the costs of reapplying
for a second permit and lost the use and enjoyment of building and utilizing his proposed
structure with his family.
WHEREFORE: Plaintiff demands declaratory relief, an injunction against denying
O'Hare for his permit using unlawful means or purpose, and all other equitable relief this court
deems necessary to curtail the defendants from regulating that which is expressly reserved to the
police powers of the State of Florida. Additionally, Plaintiff demands compensatory damages,
0
interest, attorney's fees, and costs. Also, pursuant to Sec. 79033 Fla. Stat., Plaintiff demands
that the Court assess a civil fine of $5,000 against any and all government officials, named or yet
to be named, who willfully and knowingly acted improperly under the Joe Carlucci Uniform
Firearms Act thereby giving the Governor cause for terminating said government officials.
Dated: January 20, 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
r%vitmer(@,obovleiaivfirm.com
By: /s/ Ryan L. Witmer
Ryan L. Witmer, Esq.
Florida Bar #0107563
5
g '55 AM
. 10- (1-2.01.
059 12.9
IN THE CIRCUIT COURT OF THE G TQ
FIFTEENTH JUDICIAL CIRCUIT, IN
AND FOR PALM BEACH COUNTY,
FLORIDA
CHRISTOPHER F. OTIARE, -
Plaintiff, 2013 CA n i 5 3 g
V. Case No.:
TOWN OF GULF STREAM,
Defendant.
TO: Joan K. Orthwein, Mayor
TOWN OF GULF STREAM
100 Sea Road
Gulf Stream, FL 33483
SUMMONS
E%IPORTANT
A lawsuit has been filed against you. You have 20 calendar days after this summons is
served 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
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.
IWORTANTE
Usted ha sido demandado legalmente. Tiene 20 dial, contados a partir del recibo de esta
notificacion, para contestar la demanda adjunta, por escrito, y presentarla ante este tribunal. Una
ilamada telefancia no to protegera. Si usted desea que el tribunal considere su defensa, debe
presentar su respuesta por escrito, incluyendo el numero del caso y los nombres de las partes
1 of 3
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 Hamar a
una de las oficinas de asistencia legal que aparecen en la guia telefonica.
Si desea responder a la demanda por su cuenta, al mismo tiempo en que presenta 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).
IMPORTANT
Des Poursuites Judiciares ont ete entreprises contre vous. Vous avez 20 jours consecutifs
a partir de la date de 1'assignation de cette citation pour deposer une reponse ecrite a la 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 relairequis, vous resquez de perdre la cause ainsi
que votre salaire, votre argent, et vos biers peuvent etre saisis par la suite, sans aucun preavis
ulterieus du tribunal. 11 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 un bureau d'assistance juridique (figurant a 1'annuaire de
telephones).
Si vous choisissez de deposer vous-meme une reponse ecrite, it vous faudra egalemeut,
en meme temps que cette formalite, faire parvenir ou expedier une copie de votre
reponse ecrite an "Plaintiff/Plaintiffs Attorney" (Plaignant on a son avocat) nomme ci-dessous.
2 of 3
CHRISTOPHER F. O'HARE,
as Pro Se Plaintiff
Gulf Stream, FL 33483
Telephone: (561) 350-7551
pineed(aJgmail.com
STATE OF FLORIDA
TO EACH SHERIFF OF THE STATE:
You are commanded to serve this summons and a copy of the Complaint in this lawsuit
on the above-named Defendant.
WITNESS MY HAND AND SEAL of said court.
DATE: October 2013.
3 of 3
Clerk of the Court
SHARON R. BOCK
clerk & Comptroller
�.O.Box 4667
West Palm Beach, Florida
23402-4667
By: MSTIN BUTLER
Deputy Clerk
SHARON R. BOOK
Clerk & Comptroller
Fla. R. Civ. P. 1.997 Civil Cover Sheet
This cover sheet and the information contained in it do not replace or supplement the filing and service of
pleadings or other papers as required by law. This form shall be filed by the plaintiff or petitioner for the
use of the Clerk of Court for the purpose of reporting judicial workload data pursuant to FS 25.075 (see
instructions for completion).
I. CASE STYLE
IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT
IN AND FOR PALM COUNTY, FLORIDA
CHRISTOPHER F. O'HARE,
Plaintiff, CASE NO.: jW
a
TOWN OF GULF STREAM, L1113 CA f? 15 38 0 YMI
Defendant. COPY
RECEIVED FOR FILING
OCT - 9 2013
SHARON R. BOCK
II. TYPE OF CASE
CLERK & COMPTROLLER
CIRCUIT CIVIL DIVISION
If the case fits more than one type of case, select the most definitive category. If the most
descriptive label is a subcategory (indented under a broader category), place an x in both the main category
and subcategory boxes.
_ Condominium
_ Non -homestead residential
_ Contracts and indebtedness
foreclosure $50,001-$24,999
_ Eminent domain
_ Non -homestead residential
_ Auto negligence
foreclosure $250,000 or more
Negligence — other
_ Other real property actions
_ Business governance
$0-$50,000
_ Business torts
_ Other real property actions
_ Environmentanoxic tort
$50,001- $249,999
_ Third party indemnification
_ Other real property actions
_ Construction defect
$250,000 or more
_ Mass tort _
Professional malpractice
_ Negligent security
_ Malpractice - business
_ Nursing home negligence
_ Malpractice - medical
Premises liability—commercial
�_
_ Malpractice - other professional
Premises liability—residential X
Other
_ Product liability
_ Antitrustrrmde regulation
Real property/Mortgage foreclosure
_ Business transactions
_ Commercial foreclosure $0- $50,000
_ Constitutional challenge -proposed
_ Commercial foreclosure $50,001-
amendment
$249,999
_ Constitutional challenge -statute or
Commercial foreclosure $2500,00
ordinance
or more
_ Corporate trusts
_ Homestead residential foreclosure
_ Discrimination -employment or
$0-$50,000 other
_ Homestead residential foreclosure _ Insurance claims
$50,001 - $249,999 _ Intellectual property
_ Homestead residential foreclosure _ Libel/Slander
$250,000 or more _ Shareholder derivative action
_ Non -homestead residential _ Securities litigation
Foreclosure $0 - $50,000 _ Trade secrets
_ Trust litigation
III. REMEDIES SOUGHT (check all that apply):
X monetary
X non -monetary declaratory or injunctive relief
punitive
IV. NUMBER OF CAUSES OF ACTION (specify): [1]
1. Defendants' violation of Article 1, section 24 of the Florida
Constitution and Chapter 119, Florida Statutes (2011).
V. IS THIS CASE A CLASS ACTION LAWSUIT?
_ yes
X no
VI. HAS NOTICE OF ANY KNOWN RELATED CASES BEEN FILED?
X no
yes If `yes", list all related cases by name, case number, and court:
VII. IS A JURY TRIAL DEMANDED IN COMPLAINT?
yes
X no
I CERTIFYat the information I have provided in this cover sheet is accurate to
the best of my �o�edde and belief.
or party
Fla. Bar #
(Bar # if attorney)
Christopher F. O'Hare October 9 2013
(type or print name) Date
IN THE CIRCUIT COURT OF THE
FIFTEENTH JUDICIAL CIRCUIT IN AND FOR
PALM BEACH COUNTY, FLORIDA
CHRISTOPHER F. O'HARE,
Plaintiff,
V.
TOWN OF GULF STREAM,
Defendant.
COPY
RECEIVED FOR FILING
OCT - 9 2013
SHARON R. BOCK
CLERK BCOMPTROLLER
CIRCUIT CIVIL DIVISION
CASE- NO.:
2013CA0�80
J
VERIFIED COMPLAINT TO ENFORCE FLORIDA'S
PUBLIC RECORDS ACT AND FOR DECLARATORY AND MONETARY RELIEF
The Plaintiff, Christopher F. O'Hare, ("Plaintiff'), without counsel as a Pro Se litigant,
hereby sues the Town of Gulf Stream, ("Defendant" or the "Town"), and as grounds therefore
alleges as follows:
1. This action concerns the Defendant's violation of Plaintiff's civil rights pursuant to
Article I, Section 24 of the Florida Constitution and Chapter 119, Florida Statutes (2012), (the
"Public Records Act").
2. This action seeks declaratory 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
1 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(1)(a), Fla. Stat
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Defendant to provide access to the requested public records and awarding Plaintiff his attorney's
fees and costs. Additionally, Plaintiff requests this matter be expedited pursuant to Section
119.11 (1), Florida Statutes.
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.O7(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.
3 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.
a See Footnote "2".
5 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
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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 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),
Public Counsel, and any other public or private agency, person, partnership, corporation, or business entity
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. I I9.07(l)(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 ea rel. Davis v. Mullan, 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.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. laf. Op. to Cook, May 27, 2011. And see State v. Webb, 786 So. 2d 602 (Fla.
1st DCA 2001) (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.
3of14
Fla. Stat a
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. Stat 9
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, §I19.07(3)(a)1'-, Fla. Stat.; Art. I, § 24, Fla. Const.13
16. If the Defendant, as an agency and custodian of records, believes that the content of
the records, or any portion thereof, are exempt from inspection or disclosure, "shall state in
writing and with particularity the reasons for the conclusion that the record is exempt or
confidential," "including the statutory citation to an exemption created or afforded by statute."
See § 119.07(l)(f), Fla. Stat. 14
s See Footnote "S'.
See Footnote 'T'.
10 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.
11 See Footnote "T'.
12 See Footnote "10".
13 See Footnote "I".
t' Note § 119.07(1)(e -f), Fla. Stat.
4of14
Factual Backeround
17. On October 28, 2011, an incident occurred at Plaintiffs residence, which was
summarized in a Gulf Stream Police Department Incident Report 11-1791. It is clear that this
Incident Report is electronically generated and maintained. Said Incident Report is attached
hereto and specifically incorporated herein as Exhibit A.
18. On June 21, 2012, Plaintiff, through his representative, submitted a Demand for
Preservation of Information (or a spoilation letter) to various representatives of the Town of Gulf
Stream - namely, an Officer Ginsberg, Police Chief Ward and Town Manager Thrasher -
requesting that all electronic records, including databases and metadata files, related to the 11-
1791 Incident Report, amongst others, be preserved in their electronic form and suspended from
routine destruction. Said spoilation letter is attached hereto and specifically incorporated herein
as composite Exhibit B.
19. On June 18, 2013 at 11:33 a.m., Plaintiff, through his representative, submitted a
public records request via e-mail to the custodian of records of the Town of Gulf Stream.
20. Specifically, Plaintiff sought to obtain:
(1) Any and all support documentation, pictures, etc. related to the
preparation of Gulf Stream Police Department Incident Report
No. 11-1791, submitted by Officer David S. Ginsberg, Officer No.
787, and dated October 28, 2011; and
(2) Any and all notes, research files, communications, etc., utilized
by Officer David S. Ginsberg in the preparation of the above
referenced Incident Report No. 11-1791; and
(e) If the person who has custody of a public record contends that all or part of the record is exempt from
inspection and copying, he or she shall state the basis of the exemption that he or she contends is applicable
to the record, including the statutory citation to an exemption created or afforded by statute.
(f) If requested by the person seeking to inspect or copy the record, the custodian of public records shall
state in writing and with particularity the reasons for the conclusion that the record is exempt or
confidential.
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(3) Any and all notes, research files, communications, etc. to and
front Officer David S. Ginsberg regarding the above referenced
Incident Report No. 11-1791, including, but not limited to, ally
communications after the filing of said incident report, and
(4) Evidence of the exact date Officer David S. Ginsberg filed the
above referenced Incident Report No. 11-1791; and
(S) The incident reports far the "two burglaries /just had] in Town
of unoccupied houses" as referenced by Officer David S.
Ginsberg in Incident Report No. 11-1791.
(the "Request"). Said Request is attached hereto and specifically incorporated herein as Exhibit
C.
21.On August 21, 2013, at 2:09 PM, having had no response from the Town on his
public records request, again through his representative, sent an e-mail to the custodian of
records of the Town of Gulf Stream requesting that the responsive documents be provided in
electronic format, and provided an E -Mail address for the response to be sent to (the "Follow -Up
Request"). Said Follow -Up Request is attached hereto and specifically incorporated herein as
Exhibit D.
22. Upon information and belief, most, if not all, of the requested records are maintained
by the Defendant in electronic form.
23. On September 1, 2013, some 73 days after Plaintiffs original Request, Plaintiff
received via telecopy a letter from Defendant, dated August 31, 2013, which stated "I expect to
have an estimate of cost for you within a week." Said telecopy letter is attached hereto and
specifically incorporated herein as Exhibit E.
24. On September 10, 2013, some 82 days after Plaintiffs original Request, Plaintiff
received via telecopy a letter from Defendant, dated September 9, 2013, which stated which
records were available, and that for a cost of $20.72, that Defendant would "commence world' on
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the request. The $20.72 incorporated an "estimated" $20 charge for labor and $.72 for (9) nine
single -sided copies. Said telecopy letter is attached hereto and specifically incorporated herein as
Exhibit F.
25. On September 12, at the direction of the custodian of records of the Town of Gulf
Stream, Rita Taylor, Plaintiffs representative made yet another follow-up public records request,
this time to Chief of Police Garrett Ward via e-mail.
26. Specifically, Plaintiff sought to obtain:
Evidence of the exact date Officer David S. Ginsberg filed the above
referenced Incident Report No. 11-1791
(same as item no. 4 on the original public records request).
(the "Second Follow-up Request'). Said Second Follow-up Request is attached hereto and
specifically incorporated herein as Exhibit G.
Count I — Imposition of an Unlawful Fee
27. Plaintiff re -alleges and incorporates by reference paragraphs t through 26 as if fully
alleged herein.
28. The records being sought by Plaintiff are public records pursuant to Section
119.011(12)15, Florida Statutes.
29. Section 119.07(4), Florida Statutes states that "The custodian of public records shall
furnish a copy of the record upon payment of the fee prescribed by law."
30. The Defendant imposed a fee of $.72 for copies in addition to a fee of $20 for labor.
31. The Defendant made it clear that Plaintiff would not be able to receive the requested
"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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records until the fee was paid.
32. Plaintiff requested the responsive documents be provided in electronic form and
provided an E -Mail address for the response to be sent to.
33. Upon information and belief, most, if not all, of the requested records are maintained
by the Defendant in electronic form.
34. Section 119.01(2)(1), Florida Statutes provides, "An agency must provide a copy of
the record in the medium requested if the agency maintains the record in that medium."
35. For electronic records, the agency may only charge the "actual cost of duplication."
See, § 119.07(4), Fla. Stat. (2012), Op. Att'y Gen. Fla. 2013-03 (2013).
36. Section 119.07(4)(d), Florida Statutes provides:
If the nature or volume of public records requested to be
inspected or copied pursuant to this subsection is such as to
require extensive use of information technology resources or
extensive clerical or supervisory assistance by personnel of the
agency involved, or both, the agency may charge, in addition
to the actual cost of duplication, a special service charge,
which shall be reasonable and shall be based on the cost
incurred for such extensive use of information technology
resources or the labor cost of the personnel providing the
service that is actually incurred by the agency or attributable to
the agency for the clerical and supervisory assistance required,
or both.
(emphasis added).
37. Section 119.01 1(1), Florida Statutes provides that the actual cost of duplication
"means the cost of the material and supplies used to duplicate the public record, but does not
include labor cost or overhead cost associated with such duplication."
38. The actual cost of duplication of the requested records is substantially less than $.72.
39. Defendant has imposed an unlawful fee upon Plaintiff by billing Plaintiff for labor
costs in addition to per page copy charges which exceed the actual cost of duplication, in
WildCl
contravention of the Public Records Act.
40. Additionally, upon information and belief, the $20 fee for "one hour labor" is
excessive for just nine (9) copies, and is not a reasonable estimate of Defendant's costs for
reproducing the requested records.
41. For the reasons stated above, the $20.72 that was required by Defendant to satisfy the
Town's supposed response to Plaintiffs Records Request constitutes the imposition of an
unlawful fee in violation of the Public Records Act.
Count II — Unlawful Withholding of Public Records - Electronic Format
42. Plaintiff re -alleges and incorporates by reference paragraphs 1 through 41 as if fully
alleged herein.
43. The Plaintiff requested the responsive documents be provided in electronic form and
provided an E -Mail address for the response to be sent to.
44. Upon information and belief, most, if not all, of the requested records are maintained
by the Defendant in electronic form - especially the copies of the incident reports and attached
pictures.
45. Defendant has refused to provide any of the requested documents in electronic form,
despite the fact that the information requested is maintained electronically, and by virtue of a
previous spoilation letter, is supposed to be preserved.
46. Defendant has refused to provide the following requested documents, again, despite
the fact that the information requested is maintained electronically, and by virtue of a previous
spoilation letter, is supposed to be preserved, namely:
Evidence of the Bract date officer David S. Ginsberg filed the above
referenced Incident Report No. 11-179
(item no. 4 on the original public records request).
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47. Defendant has refused to provide the following portion of the requested documents:
The incident reports for the "two burglaries yust had] in Town of
unoccupied houses" as referenced by Officer David S. Ginsberg in
Incident Report No. 11-1791.
(item no. S on the original public records request).
While the request was the stated "two burglaries in Town of unoccupied
houses as referenced by Officer David S. Ginsberg in Incident Report No. 11-1791," the
records provided the Town were of burglaries of occupied houses.
48. Section 119.01(2)(f), Florida Statutes provides, "An agency must provide a copy of
the record in the medium requested if the agency maintains the record in that medium."
49. Defendant's refusal to provide the responsive documents in the medium requested is
in violation of Section 119.01(2)(f).
50. There is no statutory exemption that applies to the requested public records and the
Defendant has cited none.
51. The Defendant's refusal to allow Plaintiff access to the requested public records
violates Article I, Section 24(a) of the Florida Constitution, Section 119.07, Florida Statutes.
52. Violations of Section 119.07, Florida Statutes constitute an irreparable public
injuryi6.
53. 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.
16
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.
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54. Section 119.11(1), Florida Statutes requires this matter beset for an immediate
hearing.17
55. All conditions precedent to this action have occurred or have been excused or waived.
56. Plaintiff re -alleges and incorporates by reference paragraphs 1 through 55 as if fully
alleged herein.
57. Defendant's use of their August 31, 2013 reply letter, wherein the Defendant stated "I
expect to have an estimate of cost for you within a week." constitutes the imposition of an
automatic delay, which has no statutory basis and is, therefore, unlawful is.
Attorneys' Fees
58. The Public Record Act provides that "f 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.
59. Plaintiff has retained counsel in this matter only for the limited purpose of assisting in
the preparation of this complaint, however, he reserves the right to retain counsel in this matter
1' See Footnote `3".
1 s See Tribune Co. v C1111nelloo, 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 Graoski v City of Alach—M 31 So.3d 193 (Fla. App., 2010); See also Rechler_ v, Town of
Mnnalaoan. No. CL 94-2724 AD (Fla. 15th Cir. Ct. November 21 1994), arnied. 674 So. 2d 789, 790
(Fla. 4th DCA 1996), review denied, 684 So. 2d 1353 (Fla. 1996); See also St';; d Webb 786 S 9 602
(Fla. APP., 2001).y.
11 of 14
for additional purposes and therefore asserts his statutory claim to attorney's fees and expenses
for the preparation of this complaint and any additional purposes for which attorney's fees and
expenses are incurred in this matter.
Relief Requested
WHEREFORE, Plaintiff prays this Court:
(a) Set an immediate hearing pursuant to Section 119.11, Florida Statutes;19
(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 Constitution29 and the Public Records Act;' -1
(c) Order the Defendant to produce copies of all the requested records (upon payment
of the statutorily authorized fees);
(d) Order the Defendant to provide copies of all the requested records to Plaintiff in
electronic format (for the records that are so maintained);
(e) Award Plaintiff his reasonable attorney's fees, costs, and expenses incurred in this
action, as provided in Section 119.12, Florida Statutes;'' and
(f) Grant such further relief as the Court deems proper.
w See Footnote "r.
20 See Footnote "I".
'' See Footnote "T'.
"See Verified Complaint at "58."
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Respectfully submitted,
PREPARED WITH ASSISTANCE OF
COUNSEL
O'HARE, as Pro Se
Dated: 00T 2013
Christopher F—.0are
2520 Avenue An Soleil
Gulf Stream, FL 33483
Telephone: (561) 588-8920
pineed�com
13 of 14
****CASE NUMBER: 2014CA001776 DIVISION: AJ ****
Filing # 10228324 Electronically Filed 02/13/2014 09:06:50 AM
3 SS �i
CPQ law
IN THE CIRCUIT COURT OF THE
FIFTEENTH JUDICIAL CIRCUIT, IN G-r
AND FOR PALM BEACH COUNTY,
FLORIDA
CHRISTOPHER F. O'HARE,
Plaintiff,
V.
TOWN OF GULF STREAM,
Defendant.
THE STATE OF FLORIDA
To Each Sheriff of the State:
Case No.:
SUMMONS
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 Manett
W. Hanna, plaintiff's 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 February 2014
Clerk of the Court FEB 13 2014
By. 51A4
Deputy Clerk
Karla Guzman
SHARON R. BOCK
Clerk & Comptroller
P.O. Box 4667
West Palm Beach, Florida
33402-4667
The O'Boyle Law Firm P.C.
Attorneys for Plaintiff
1286 West Newport Center Drive
Deerfield Beach, FL 33442
Telephone: (954) 570-3518
Facsimile: (954) 360-0807
mhanna@obovlelawfu-m.com
By: Is/Marrett W. Hanna
Marrett W. Hanna, Esq.
Florida Bar #0016039
CHRISTOPHER F. O'HARE
Plaintiff,
V.
THE TOWN OF GULF STREAM,
Defendant
IN THE CIRCUIT COURT OF THE
15' JUDICIAL CIRCUIT IN AND FOR
PALM BEACH COUNTY, FLORIDA
CASE NO.:
VERIFIED COMPLAINT TO ENFORCE FLORIDA'S PUBLIC RECORDS ACT AND
FOR DECLARATORY INJUNCTIVE AND MONETARY RELIEF
The Plaintiff Christopher F. O'Hare, ("Plaintiff'), by and through the undersigned
counsel, hereby sues the Town of Gulf Stream, ("Defendant"), and as grounds therefore alleges
the following:
IMMODUCTION
1. This action concerns the Defendant's violation of PlaintiTs 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
constitutionals and statutory2 duty to permit access to public records, and compelling the
Defendant to provide access to the requested public records, enjoining the Defendant from
' Article I Section 24, Fla. Const.
2 § I I9.07(1)(a), Fla. Stac
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 Statutes.
Parties, Jurisdiction and Venue
L Plaintiff is a resident of Palm Beach County, Florida, is over the age of eighteen, and
is otherwise sui juris.
2. Defendant is an "agency" pursuant to Section 119.011(2), Florida Statutes.
3. This Court has subject matter jurisdiction pursuant to Article V, Section 5(b) of the
Florida Constitution, and Section 119.11, Florida Statutes.
4. This Court has personal jurisdiction over Defendant, because 1) Defendant is a
government unit established by law; 2) Defendant is located in Palm Beach County, Florida; and
2) Defendant engaged is substantial and not isolated activity within this state. See Section
48.193(2), Fla Stat.
5. The causes of action in the instant case accrued in Palm Beach County making this
Court the appropriate venue for the vindication of Plaintiffs civil rights.
6. 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. See § 119.07, Fla. Stat.; Art.1 § 24, Fla Const.
7. 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).
8. 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),
Fla. Stat
9. Under the Public Records Act, " [elvery 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."jaec § 119.07(1)(a), FIa. Stat.
10. The Public Records Act provides that '[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
11. Defendant has an obligation to provide any non-exempt public records for inspection,
copying and photography upon request. See § 119.07(1)(a); §119.07(3)(a). See also Fla. Stat.;
Art. I, § 24, Fla. Const.
Facts Pertinent to All Allegations
12. On January 16, 2014, Plaintiff submitted the following public records request via e-
mail to Defendant:
Any and all documents, files, photos, folders or other
material in digitalform that can be reasonably considered
a public record which is located on any and all cell
phones or other portable electronic decvices [sic] in the
personal possession of, or the personal control of, Scott
Morgan.
See Ex. A.
13. On January 16, 2014 Plaintiff made an additional request:
Any and all documents, files, photos, folders or other
material in digital form that can be reasonably
considered a public record which is located on any and
all computers in file personal possession of, or the
personal control of, Scott Margin,.
See Ex. B.
14. Defendant has refused to release the above requested documents.
15. As of February 11, 2014 Defendant cited no lawful excuse or statutory exemption,
which relieves it of its duty to comply with Florida's Public Records Law.
Substantive Allegations
16. Plaintiff is seeking records pursuant to Section 119.011(12), Fla. Stat
17. The public records requested by Plaintiff do not fall within any exemption as set forth
in Florida's Public Records Law.
18. Violations of Section 119.07, Florida Statutes constitute an irreparable public injury.
19. Plaintiff has a clear legal right to demand that Defendant comply with its duty to
permit inspection, copying and photographing of public records.
20. Plaintifffiled the instant action to enforce the provisions of Florida's Public Records
Law, which requires an accelerated hearing wherein the Court is required to give this case
Priority over other pending cases. See Section 119.1 1(1), Fla. Stat
21. All conditions precedent to this action have occurred or have been excused or waived.
22. Defendant's actions with respect to the instant Request (and to other public records
requests) reveal a clear pattern of conduct, in which Defendant has demonstrated a knowing and
willful noncompliance with Florida's Public Records Law.
23. Defendant's conduct also evidences a likelihood that Defendant will commit firture
violations of Florida's Public Records Law such that injunctive relief is appropriate.
Count I— Unlawful RefuWfWitbholding of Records, Failure to Produce All Records
24. Plaintiff re -alleges and incorporates by reference paragraphs 1 through 23 as if fully
set forth herein.
25. Upon information and belief, Defendant did not produce all records within its
custody, which are responsive to Plaintiffs Request
Ell
26. Defendant has made it clear that no further records will be provided in response to the
Request.
27. Defendant's failure to produce all records responsive to Plaintiff's Request constitutes
a denial of access to public records in violation ofFlorida Public Records Law.
Attorneys, Fees
28. Plaintiff hired the undersigned attorneys and is entitled to recover from Defendant its
reasonable attorney's fees, costs, and expenses pursuant to Section 119.12, Florida Statutes.
Relief— Requested
WHEREFORE, Plaintiff prays this Honorable Court for the following relief:
(a) Set an immediate hearing pursuant to Section 119.11, Florida Statutes;
(b) Declare that 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 and the Public Records Act;
(c) Order 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_
(0 Award Plaintighis reasonable attorney's fees, costs, and expenses incurred in this
action, as provided in Section 119.12, Florida Statutes; and
(9) Grant such further relief as the Court deems proper.
5
Respectfully submitted,
The O'Boyle Law Firm P.C.
Attorneys for Plaintiff
1286 West Newport Center Drive
Deerfield Beach, FL 33442
Telephone: (954) 570-3518 (direct line)
Facsimile: (954) 360-0807
mhanna(alobovlelawfirn,
By: /s/Marrett W. Hanna
Marrett W. Hanna, Fsq.
Florida Bar #0016039
CERTIFICATE OF SERVICE
I hereby certify that on February 12, 2014 I electronically filed the foregoing document with the
Clerk of the Court using CM/ECF.
THE O'BOYLE LAW FIRM P.C.
By: /s/Marrett W. Hanna
Merrett W. Hanna, Esq.