HomeMy Public PortalAboutVerified Complaint to Enforce Fla Pub. Recs. and for Declaratory Inj. Relief (O'Hare)IZ/ICS/ls UI- z.y —Zor
IN THE CIRCUIT COURT OF THE
FIFTEENTH JUDICIAL CIRCUIT, IN
AND FOR PALM BEACH COUNTY,
FLORIDA C PS -ff-12
CHRISTOPHER F. OTIARE, W2053(A0181 Q .yG, XXXKM 74
Plaintiff, t A /ASA
V. Case 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.
IlMPORTANTE
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
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 legates. 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).
IDIPORTANT
Des Poursuites Judiciares ont etc 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. 11 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 I'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 ou expedier une copie de votre
reponse ecrite au "Plaintiff/Plaintiffs Attorney" (Plaignant ou a son avocat) nomme ci-dessous.
CHRISTOPHER F. OHARE,
as Pro SAPlaintiff
Christopher R p'Hare
2520 Avenue Au Soleil
Gulf Stream, FL 33483
Telephone: (561) 350-7551
pinegd@,gmail.com
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r
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. SHARON R. BOCK
DEC 14 201 ()jerk & Comptroller
Clerk of the Court
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By. Chr_stinaNA.Peahan
Deputy Clerk
SHARON R. BOCK
Clerk & Comptroilar
P.O. Box 4667
West Palm 59ach, Florida
33402-4667
IN THE CIRCUIT COURT OF THE
FIFTEENTH JUDICIAL CIRCUIT IN AND FOR
PALM BEACH COUNTY. FLORIDA
CHRISTOPHER F. OTIARE,
Plaintiff
V.
TOWN OF GULF STREAM,
Mnn
2013 GA 0 18 10 2 XMW
CASE NO.: COPY
RECEIVED FOR r-�i_. r
I L�
SHARON R P .
Defendant. CLERK & COMp T F;]t i
CIRCUIT CIVIL DIVISION
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 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
r 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 bebA
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 commiccion, 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 Plaintiffs civil rights.
The Parties
7. Plaintiff is a Florida citizen who resides in Palm Beach County.
S. 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
2 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.
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
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10. The Defendant has a duty to permit the inspection, copying, and photography of
Defendant's public records by agy person desiring to do so, at a reasonable time, under
reasonable conditions, and for reasonable costsa. (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. 1, § 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.
6 Note Government-In-The-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 Power &
Light Company, 372 So. 2d420,425 (Fla. 1979). See also State ex rel. Dais 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 anile 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. Ind. 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 8
13. Under the Public Records Act, "[e]very person who has custody of a public record
shall permit the record to be inspected and copied by any person desiring to do so, at any
reasonable time, under reasonable conditions, and under supervision by the custodian of the
public records." See § 119.07(1)(a), Fla. Stat 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(l)(a)tt, §119.07(3)(a)12, Fla. Stat.; Art. 1, § 24, Fla. Const.13
Factual Backeround
16. On September 26, 2013 at 9:28 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:
The specific section number AND section language of the Town of Gulf
Stream Code that provides for an applicant to apply for a variance front
the regulations of Chapter 70 of the Tmpn's Zoning Code.
8 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 possessor, custody, and control of the custodian of public records.
' u See Footnote "2".
u'- See Footnote "10".
13 See Footnote "1".
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(the "Records Request'). Said Records Request is attached hereto and specifically incorporated
herein as Exhibit A.
18. The day after receipt of the Initial Record Request, on September 27, 2013,
Defendant sent a letter to Plaintiff via e-mail, also received September 27, 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 Records Response"). Said Initial Records Response is attached hereto and
specifically incorporated herein as Exhibit B.
19. Some twenty-six (26) days after receipt of Plaintiffs Records Request, Defendant
sent a letter to Plaintiff via e-mail on October 22, 2013, also received October 22, 2013, stating
in relevant part:
The following has been identified as responsive to
your request:
http://library. municode.comdfrN4UI4096Aevel4/S
PB. LAND DEVELOPMENT REGULATIONS
CH66Z0 ARTVSIPL DIV3VA.htm1#TOPTITLE
(the "Final Records Response"). Said Final Records Response is attached hereto and
specifically incorporated herein as Exhibit C.
20. Without instructions, Plaintiff could only assume that the information provided was a
web site link on the internet. The link provided by the Defendant did NOT work.
21. On October 23, 2013 at 12:40 p.m., Plaintiff submitted a follow-up public records
request via e-mail to the custodian of records of the Town of Gulf Stream.
22. Specifically, Plaintiff stated:
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Your October 22, 2013 response to this request is as follows:
The following has been identified as responsive to your
request:
http: //lihrary. mumicode. com/HTA4U]40961level4/SPB._LA
ND DEVELOPMENT REGULATIONS CH66ZO ARTVS
IPL DIV3VA.htm1#TOPTITLE
I assume this response is a link to a website page but I cannot get it
to work as you have provided it.
Instead I have used the contents of your response and searched the
municode for CH66 ARTV DIV3 TOPTITLE. The document
found at this location is non-responsive to the Public Record
Request.
Please provide "The specific section number AND section
language of the Town of Gulf Stream Code that provides for an
applicant to apply for a variance from the regulations of Chapter
70 of the Town's Zoning Code." as per the terms of my original
request of September 26, 2013.
the "Follow-up Records Request"). Said Follow-up Records Request is attached hereto and
specifically incorporated herein as Exhibit D.
23. As of the date of this complaint, some seventy-five (75) days after Plaintiffs original
public records request, Plaintiff has not received the requested public records.
24. Upon information and belies; the requested public records are maintained by the
Defendant in electronic form.
25. Plaintiff has requested, more than once, 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.
26. The records requested by the Plaintiff are public records that are readily accessible to
Defendant.
27. All of the records being sought by Plaintiff are public records pursuant to Section
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119.011(12)t't, Florida Statutes.
28. There is no statutory exemption that applies to any of the requested public records
and the Defendant has cited none.
29. Violations of Section 119.07, Florida Statutes constitute an irreparable public
injuryt0
30. 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.
31. Section 119.11(1), Florida Statutes requires this matterbe set for an immediate
hearing. tc
32. All conditions precedent to this action have occurred or have been excused or waived.
33. 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.
"Note § 119.011(12), Fla Stat
"Public records" means all documents, papers, letters, maps, books, tapes, photographs, films, sound
recordings, data processing software, or other material, regardless of the physical form, characteristics, or
means of transmission, made or received pursuant to law or ordinance or in connection with the transaction
of official business by any agency.
" Note Daniels v. Bryson, 548 So. 2d 679,680 (Fla. 3d DCA 1989)
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.
16 See Footnote "3".
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Count I — Unlawful Withholdine of Public Records:
Unreasonable Delay for the Production of Records in Electronic Form
34. Plaintiff re -alleges and incorporates by reference paragraphs 1 through 33 as if fully
alleged herein.
35. 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 law's
36. 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."
37. If information contained in the public record is available from other sources, a person
seeking access to the record is not required to make an unsuccessful attempt to obtain the
information from those sources as a condition precedent to gaining access to the public records19
38. "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." Tribime Co. v. Ccnnrella, 458 So. 2d 1075, 1079 (Fla. 1984).
" 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 (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 Bop Ra[on 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.").
19 See Warden v Bennett 340 So. 2d 977, 979 (Fla. 1976) "The fallacy in this reasoning is that it presupposes that
simply because the information contained in certain public records might be available from other sources, the person
seeking access to these records must first show that he has ,ms cress ty sought the information from these
sources. The Public Records Act contains no such requirement"
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39. Despite Plaintiff s request of obtaining a copy of the requested record in digital (or
electronic) form, some seventy-five (75) days after the Defendant received Plaintiffs original
Record Request, Defendant still has not offered to provide same to Plaintiff.
40. The above described seventy-five (75) day delay is unreasonable and in violation of
the Public Records Act.
Count H— Automatic Delay:
the Production of Records in Electronic Form
41. Plaintiff re -alleges and incorporates by reference paragraphs 1 through 40 as if fully
alleged herein.
42. In its Initial Records Response, Defendant imposed an automatic delay by refusing to
respond except "within three business days," even though the Records Request was received the
day before the date appearing on the Defendant's Initial Records Response and the requested
records were readily available to the Defendant at that time.
43. The Defendant's imposition of an automatic delay has no statutory basis and is,
therefore, in violation of the Public Records Act.2e
Attorneys' Fees
44. 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,
"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 Graoski v. Citv of Alachua 31
So.3d 193 (Fla. App., 2010); See also Rechler v. Town of Manalatran No. CL 94-2724 AD (Fla. 15th Cir. CL
November 2L, 1994), affirmed 674 So. 2d 789, 790 (Fla. 4th DCA 1996), review denied, 684 So. 2d 1353 (Fla.
1996); See also State v. Webb. 786 So.2d 602 (Fla. App., 2001).
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against the agency responsible, the reasonable costs of enforcement including reasonable
attorneys' fees." See §119.12, Fla. Stat.
45. 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.
Relief Requested
WHEREFORE, Plaintiff prays this Court:
(a) Set an immediate hearing pursuant to Section 119.11, Florida Statutes;21
(b) Declare that the Defendant's failure to provide Plaintiff with access to the
requested public records was unconstitutional and unlawful under Article L Section 24 of
the Florida Constitution" and the Public Records Act;23
(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:' 1
See Footnote "3".
See Footnote "1".
Z' See Footnote "T'.
24 Note Government -In -The -Sunshine -Manual page 17Z
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(f) Award Plaintiff his reasonable attorney's fees, costs, and expenses incurred in this
action, as provided in Section 119.12, Florida Statutes;25 and
(g) Grant such further relief as the Court deems proper.
Dated: W 10 12013
Respectfully submitted,
PREPARED WITH ASSISTANCE OF
COUNSEL
F. O'HARE, as Pro Se
2520 Avenue Au Soleil
Gulf Stream, FL 33483
Telephone: (561) 588-8920
pinegd(@—amail.com
Injunctive relief maybe available upon an appropriate showing for a violation of Ch. 119, F.S. See Daniels
v. Bryson, 548 So. 2d 679 (Fla. 3d DCA 1989) (injunctive relief appropriate where there is a demonstrated
pattern of noncompliance with the Public Records AM ether with a
d of future
violations; mandamus would not be an adequate remedy since mand ,n„u would e
ldnot 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.
v See Verified Complaint at "44"
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