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HomeMy Public PortalAboutAmended Complaint/ Mtn and Order to leave Withdraw/Req. for ProductionLAW OFFICES Gov bocci JOHNSON, ANSELMO, MURDOCH, BURKE, PIPER & HOCHMAN, P.A. A PROFESSIONAL ASSOCIATION DAMIAN FL ALBERT, PA W. HAMPTON JOHNSON IV SCOTTO.ALE)eANDER,PA 2455 EAST SUNRISE BOULEVARD J. MARCOS MARTINEZ CHRISTOPHER AMBROSIO, P.A. SUITE1000 FORT IAUOERDALE, kL 33304 ROBERT E MUROOCH MIOHAELT.BUR10=• MICHAEL R. PIPER• HUDSON C. GILL, PA DAVID M. SCHWEIGER, PA. JEFFREY L HOCHMAN, PA CHRISTOPHER L SMITH E.BRUCEJOHNSON' (854)453-0100 Bm rd CHRISTOPHER J. STEARNS. P.A. (305) 5452000 Delle (561)640.7446 WPB Aennm. TELECOPIER (1154) 453-2444 RONALD P. ANSELMO 'emweoa�Mnms BURL F. GEORGE May 8, 2014 Via electronic mail: bthrasher(a)eulf-stream.ore William Thrasher, Town Manager Town of Gulf Stream 100 Sea Rd. Gulf Stream, FL 33483-7427 Re: O'Hare (2) v. Town of Gulf Stream & Thrasher Claim No.:GC 2013076963 Our File No.: 34046/640 Case No.: 2014 000720 CA AI Dear Mr. Thrasher: Enclosed please find a copy ofPlaintifPs amended complaint in the above -referenced "gun range" matter. We presently are preparing a motion to dismiss and will copy you with same upon completion. In the meantime and as always, if you have any questions or comments, please do not hesitate to contact me. I will continue to keep you advised. truly yours, Michael R- Piper For the Firm MRP/taw Enclosure cc: John Randolph, Esq. Irma Cohen (via electronic mail) Filing k 13362454 Electronically Filed 05/07/2014 10:12:30 AM IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA 167100 1:i : . e!1 Plaintiff, V. TOWN OF GULF STREAM, WILLIAM H. THRASHER, JR., individually, Defendants. CASE NO.:2014CA000720 Al AMENDED COMPLAINT CHRISTOPHER F. MR. O'HARE ("Plaintiff' or "Mr. 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: This action is brought pursuant to 740.33 Fla. Stat. (2011), a highly controversial statute that expressly preempts local governments and officials from entering the sphere of firearm and ammunition regulation. The law places heavy penalties on municipal governments and officials that engage in firearms regulation. In many respects, this case presents issues of first blush. Here, Plaintiff wanted to recreationally discharge firearms in his backyard but needed to erect a safety barrier to catch bullets. Without such a barrier, Plaintiff would likely be liable for discharging his firearm in an unsafe manner. a crime under State law. Town Manager Thrasher prevented Plaintiff from building any barrier that would allow Plaintiff to safely engage in ECEiV MAY 0 72014 BY: ��y/' CASENO.: 2014CA000720 AI Page: Two recreational shooting in his backyard - in contravention to his rights under § 790.33 Fla, Stat. The Town and Town Manager Thrasher were preempted from prohibiting Plaintiff from engaging in recreational shooting, even if their motivation was to prevent a supposed violation of the zoning code. TRE PARTIES..IITRTSDICTION, AND VEIVITE 1. Plaintiff ("Mr. Mr. O'Hareis a Florida citizen who resides at 2520 Avenue 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. 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. § 79033(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. General Facts 6. Before mid-October 2013, Mr. O'Hare decided that he wanted to recreationally discharge firearms in his backyard with his family. 7. He knew that, under Florida law, he needed to safely discharge his firearm, so he sought to erect a structure to stop bullets from leaving his property. 8. Mr. O'Hare was unsure whether he needed to apply for a building permit in light of 790.33 Fla. Stat., since that statute preempts local action. CASE NO.: 2014CA000720 AI Page: Three 9. However, Mr. O'Hare decided to apply for a permit to be sure that he could not be cited for building without a permit. 10. On October 14, 2013, Mr. O'Hare submitted a building permit application to the Town for executive review and approval 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. 11. The packet contained elaborate and precise drawings of Mr. 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. 12. Within the Exhibit A, Mr. O'Hare noted that the solid backstop was capable of containing 400 foot-pounds of energy — sufficient to stop a 9mm (147 gran EXT) projectile. 13. On or about October 17, 2013, Town Clerk Rita Taylor sent Mr. O'Hare's attorney — Lou Roeder, Esq. — a facsimile letter by the Town Manager, William Thrasher, denying Mr. O'Hare's request. The October 17, 2013 letter is attached hereto and incorporated by reference herein as Exhibit B. 14. In that letter, Thrasher elaborated on Mr. 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 apermit is, therefore, denied." (emphasis added). 15. On or about October 18, 2013, Mr. O'Hare submitted another building permit application to the Town for executive review and approval. CASE NO.: 2014CA000720 Al Page: Four 16. The request was partially similar but substantially different than Mr. O'Hare's original permit request. 17. Mr. 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, ladypalms 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. 18. The application was resubmitted with the above changes and Mr. O'Hare decided to substantially reduce the amount of proposed construction to only those items he felt essential for the safe and diligent use of a firearm on his private property. Mr. O'Hare based his decision on the plain language of § 790.15. 19. Exhibit C contained the identical bullet -stopping wall as in Exhibit A and included ballistic energy reports for different types of ammunition. 20. On or about October 23, 2013, Mr. O'Hare received another letter from Thrasher denying his new request. Thrasher directed Mr. 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. The Town's and Thrasher's Intent 21. 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. 22. Mr. O'Hare understood Town Manager Thrasher's letter as sending a clear CASE NO.: 2014CA000720 Al Page: Five message, Mr. O'Hare is not permitted to use firearms or any type of the ammunition provided in his backyard within the Town and that the Town was superior to State law. Thrasher was unable to cite to a single Town law that otherwise prohibited the structure that Mr. O'Hare had proposed. In fact, if Mr. O'Hare had not described the wall as a "ballistic backdrop," there would have been nothing in his application to have distinguished it from a normal backyard wall which was not visible from the street - something allowed under the Town's Code. 23. Instead, Thrasher vaguely asserted that the Town's code and regulations— taken as a whole —prohibited the recreational discharge of firearms at Mr. O'Hare's home. 24. 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 use - the firearm and ammunition activity - surrounding Mr. O'Hare's proposed structure. 25. Under Town Code Chapter 70, Art. III, 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 § 70-49 are solely cognizable as activities relating to structures, not the structures themselves. 26. Neither Thrasher nor the Town denied Mr. O'Hare's permits because they failed to conform to any "sport shooting range" regulations because no such laws exist. Thrasher's Denials Were Executive Actions 27. Thrasher's statutory job description is administrator of the Town's Code of Ordinances, and the Town's Chief executive, as specifically described in detail in Chapter 2 of the Town Code. Thrasher is also responsible for numerous low-level executive reviews under CASE NO.: 2014CA000720 Al Page: Six Chapter 66 of the Town Code, including issuing permits for construction under Town Code § 66-101. 28, Thrasher's denials of Mr. O'Hare's permits were executive actions. 29. Thrasher's denials, pursuant to his authority to conduct low-level permit approvals, were based upon the written application of Mr. O'Hare. 30. Thrasher's denials did not consist of a public hearing, notice, or an opportunity for cross examination. 31. 1n addition, Thrasher did not inform Mr. O'Hare of the findings of facts and conclusions of law for which the executive decision was based. 32. The process utilized to review Mr. O'Hare's permit was not, therefore, a judicial determination or quasi-judicial rulemaking. Administrative Remedies Unavailable 33. Mr. Thrasher's decision is a final action because Mr. O'Hare did not have to appeal to the Town Board for Review. 34. Mr. O'Hare exhausted his administrative remedies when he deliberately decided not to appeal to the Board of Adjustment because that body could not grant Mr. O'Hare the statutory remedies under § 790.33(3) Fla. Stat. (2011). 35. The Town Board of Adjustment has insufficient power or jurisdiction to award to Mr. O'Hare monetary damages, injunctive relief, attorney's fees, make findings of fact, and execute the penalty enhancements under the statute. 36. The Board is an appellate body that could not find facts: the same facts that would trigger the enhanced penalties for willful and knowing violations under § 790.33(3)(c)- CASE NO.: 2014CA000720 Al Page: Seven (e) Fla. Stat. (2011). 37. Because the statutory remedies would be ignored by the Board, the Board was incapable of allowing Mr. O'Hare to further the general policy of deterring and preventing violations as stated under § 790.33(2)(b) Fla. Stat. (2011). 38. The Board's power to grant remedies is inadequate and all adequate administrative remedies have been exhausted. 39. Finally, the Board is a municipal body that cannot use their quasi-judicial rulemaking power to regulate firearms and ammunition because of preemption under § 790.33 Fla. Stat. (2011). Count I— Violation of 5 790.33 Fla. Stat. (2011) 40. Mr. O'Hare reallages and incorporates paragraphs 1-39. 41. The Town policy is to prohibit the recreational discharge of firearms within Town limits. 42. The Town's decision to deny Mr. O'Hare's permits constituted the unlawful entrance into the field of regulating firearms and ammunition because Thrasher denied Mr. O'Hare the use of his wall, simply because he knew that Mr. O'Hare's permit related to the discharge of firearms and the use of particular ammunition. 43. At the time, nothing in the Town Code prohibited the permitting of Mr. O'Hare's proposed structures themselves. 44. The Town's actions or regulations have caused Mr. O'Hare to shoulder the costs of reapplying for a second permit. He also lost the use enjoyment of building and property and utilizing his proposed structure with his family. CASE NO.: 2014CA000720 Al Page: Eight 45. Additionally, the cost of ammunition and firearms continues to rise and since Mr. O'Hare does not know if his proposed structures will be approved and constructed, he is unable to assess the final strength of the proposed ballistic backstop whereupon he can determine which firearms or ammunition would be safe to operate. 46. Mr. O'Hare has lost and continues to lose the economic opportunity to purchase firearms and ammunition at a lower price. 47. Mr. O'Hare also suffered a loss in the Iiberty interests granted by the State of Florida under § 790.33 Fla. Stat (2011). WHEREFORE: Plaintiff requests that this Court grant all reasonably foreseeable compensatory damages, including but not limited to, damages associated with lost economic opportunity, presumed damages, damages compensating Mr. O'Hare for the lost use and enjoyment of his property and his family, interest, and award attorney's fees with multiplier, interest, and costs. Count H — Injunctive Relief 48. W. O'Hare reallages and incorporates paragraphs 1-39. 49. Mr. O'Hare is experiencing irreparable harm as he is not allowed to engage in recreationally discharging of firearms in his backyard with his family. 50. Every day that passes subjects Mr. O'Hare to the irreparable harm of not being allowed engage in the aforementioned liberty interest granted to him by the State of Florida. 51. The immediate aforementioned harm will cease when Mr. O'Hare has finally CASE NO.: 2014CA000720 Al Page: Nine constructed and tested his proposed structure. 52. There is no adequate remedy at law to prevent these ongoing harms other than injunctive relief. 53. Mr. O'Hare plans to request additional permits for structures relating to firearms and enhanced safety. W1H:REFORE: Plaintiff requests this Court to order the Town to grant Mr. O'Hare's building permits, enjoin the Town from engaging in the field of firearm and ammunition regulation when issuing future permits, enjoin the town from taking action against Mr. O'Hare if he erects his proposed wall without a permit, and award attorney's fees with fee multiplier, costs, and interest. Count III—Declaratory Relief 54. Mr. O'Hare reallages and incorporates paragraphs 1-39. 55. Mr. O'Hare has a present and palpable conflict regarding the Town's power to preclude the recreational discharge of firearms on residential land under their Town Code and § 790.33 Fla. Stat. (2011). 56. Mr. O'Hare also believes that Thrasher does not have immunity for willfully violating § 790.33 Fla. Stat (2011), and that belief is in conflict with Thrasher and the Towns belief. 57. There exists a bona fide actual present and practical need for a declaration regarding these issues. 58. The declaration sought concerns a present ascertained or ascertainable state of facts CASE NO.: 2014CA000720 AI Page: Ten or present controversy. 59. The declaration is necessary for the parties to be certain about their rights, duties, obligations, status, and Iegal relations under the law. 60. The antagonistic and adverse interests are all before the Court by proper process. 61. The relief being sought is not merely the giving of legal advice or answers to questions propounded by curiosity. 62. Mr. O'Hare reserves the right to seek supplemental relief. WHEREFORE: Plaintiff requests that this Court declare that Thrasher does not have immunity from actions under § 79033 Fla. Stat. (2011) and declare that the Town does not have the power to use policies or ordinances to preclude personal, recreational shooting of firearms on one's own property within the Town. Plaintiff also requests attorney's fees with multiplier, costs, and interest. Count IV —Thrasher Personal Liability Under 4 790.33(3)(e) -Le) Fla Stat (2011) 63. Mr. O'Hare reallages and incorporates paragraphs 1-39. 64. Town Manager Thrasher, wilfully and knowingly, under color of law, regulated part of the field of firearms and ammunition when he pretextually and unlawfully denied Mr. O'Hare's building permits because he wanted to prevent Mr. O'Hare from discharging or otherwise using firearms or certain types of ammunition on Mr. O Hare's private land. 65. Any immunity granted by the State to Thrasher has been waived by the legislature under § 790.33 Fla. Stat. (2011), and subjects Thrasher's actions to liability. 66. Plaintiff seeks statutorily stated punitive remedies to effectuate specific deterrence and general deterrence for other public officials for the benefit of the public at -large. CASE NO.:2014CA000720 Al Page: Eleven WHEREFORE: Plaintiff requests that this Court grant Plaintiff the relief outlined in § 790.33 Fla. Stat. (2011) by (1) assessing a $5,000 fine against Thrasher and levying the same fine against all government officials, named or yet to be named, who willfully and knowingly violated § 790.33 Fla. Stat. (2011); (2) finding facts sufficient for the governor of Florida to remove Thrasher with cause; (3) ordering Thrasher to reimburse the Town or its insurance company for the full panoply of costs and damages stemming from this litigation to ensure that no public funds were expended to defend against knowing or willful violations; and (4) awarding attorney's fees with multiplier, and costs. Dated: Mav 7.2014 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 i( obovlelawfirm.com By: /s/ Ryan L. Witmer Ryan L. Witmer, Esq, Florida Bar #0107563 LAW OFFICES JOHNSON, ANSELMO, MURDOCH, BURKE, PIPER & HOCHMAN, P.A. A PROFESSIONAL ASSOCIATION DAMIAN H. ALBERT. PA W. HAMPTON JOHNSON IV SCOTT D. ALEXANDER. PA. 2455 EAST SUNRISE BOULEVARD J. mRCOS MARTINEZ CHRISTOPHER AMBROSIO. P.A. SURE 1000 ROBERT E MURDOCH MICHAELT. BURKE' FORT LAUDERDALE. FL 33304 MICHAEL R. PIPER' HUDSON C. GILL. PA DAVID M. SCHWEIGER, PA JEFFREY L HOCHMAN. PA CHRISTOPHER L SMITH E BRUCE JOHNSON • (954)4634100 Brdwmd. CHRISTOPHER J. STEARNS. P.A. (305) 845-2000 Dade (561)940-7448 WPB n4nnFn: TELECOPIER (954) 463-2444 RONALD P. ANSELMO 'eanP cxNneuawt rw.v.unrma BURL F. GEORGE December 9, 2013 Via electronic mail:bthrasherAgulf-stream.org William Thrasher Town Manager Town of Gulf Stream 100 Sea Rd. Gulf Stream, FL 33483-7427 Re: Chris O'Hare v. Town of Gulf Stream Claim No.: GC2011072748 Our File No.: 640/33569 Dear Mr. Thrasher: Enclosed please find a copy of Plaintiff's counsel's motion to withdraw in the above - captioned matter. Plaintiff's counsel has moved withdraw at an odd time, given that we just recently filed comprehensive motions to dismiss and memoranda of law on behalf of all of the Defendants. I would like to think that Plaintiff's counsel was awakened to the substantial lack of merit of Mr. O'Hare's claims; however, that would be mere supposition my part. In any event, I will advise you immediately if/when Plaintiff obtains new counsel. Also, may I indulge your assistance in distributing this letter and the motion to the individual defendants? We do not yet have contact information for some of them. In the meantime and as always, ifyou have any questions or comments, please do not hesitate to contact me. I will continue to keep you advised. Very truly yours, Michael R. Piper For the Firm MRP/taw Enclosure cc: Irma Cohen Case 9:13-cv-81053-KLR Document 24 Entered on FLSD Docket 12/04/2013 Page]. of 3 CHRIS O'HARE, Plaintiff, VS. UNTIED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 13 -CV -81053 -KIR TOWN OF GULF STREAM; TOWN OF GULF STREAM COMMISSION; TOWN MANAGER WILLIAM THRASHER, Town Manager, in his individual capacity and official capacity as the Town manager for the Town of Gulf Stream; TOWN SPECIAL MAGISTRATE EARA DONLON, Special Magistrate, in her individual capacity and official capacity as a Special Magistrate for the Town of Gulf Stream; OFFICER DAVID GINSBERG, Officer; in his individual capacity and official capacity as an Officer for the Town of Gulf Stream; SERGEANT ADAM GOREL, Sergeant, in his individual capacity and official capacity as an Sergeant -for the Town of Gulf Stream; STEVEN TOBIAS, Building Official, in his individual capacity and official capacity as a Building Official for the City of Delray Beach; and MARTY MINOR, Planning Consultant, in his individual capacity and official capacity as a Planning Consultant for the Town of Gulf Stream. Defendants. COMES NOW, Plaintiff's counsel, Robert Gershman, pursuant to U.S District Court - Southern District, Rule 11.1(d), and requests leave of Court to withdraw his appearance in this action as attorney for Plaintiff, and allow Plaintiff 30 days to obtain new counsel and 20 days thereafter to file appropriate pleadings in this matter and states: Undersigned filed the Initial Complaint on October 17, 2013 [DE 1]. Summonses have been served on each Defendant [DE 6]. 2. The Court issued its Order of Pretrial Procedures on October 23, 2013 ME 4]. Case 9:13-cv-81053-KLR Document 24 Entered on FLSD Docket 12/04/2013 Page 2 of 3 3. All Defendants are represented by one law firm. Defense, after an agreed extension with undersigned, filed Motions to Dismiss on behalf of each Defendant on November 26, 2013 [DE 14, 15, 16, 17, 18, 19, 20 & 21], 4. Undersigned certifies be has personally spoken with defense counsel, Christopher Steams. Defense counsel has no objection to the following: (a) undersigned's withdrawal; (b) permitting Plaintiff 30 days to obtain new counsel; and (c) 20 days after Plaintiffs new counsel files his/her appearance, Plaintiff's new counsel shall file appropriate pleadings. 5. Undersigned certifies that he has made Plaintiff aware of this Motion before same was filed Undersigned further certifies that Plaintiff has specifically instructed undersigned to take no further action on this matter. Undersigned further certifies that, pursuant to Plaintiffs demand, papers and materials concerning this matter have already been returned to an attorney of Plaintiffs choice, Mark Hanna, Esquire. Counsel further cefiifies that be has asked Plaintiff, and attorneys working for Plaintiff, on numerous occasions, for stipulation of substitution of counsel paperwork. However, for reason(s) unknown, Undersigned has not been provided any attorney substitution papers. 6. Upon information and belief, Plaintiff will not be adversely affected by the Court granting this Motion. 7. This Motion is well-founded, and contains good cause for leave of Court, pursuant to Local Rule 11.1(d), to permit Undersigned withdraw from this matter. WHEREFORE, undersigned requests: (a) leave of Court permitting him to withdraw from this action and be relieved of all future responsibilities in this case; (b) Plaintiff he afforded 30 days to obtain new counsel; and (c) 20 days after Plaintiff s new counsel files his/her appearance, Plaintiff's new counsel shall file appropriate pleadings. 2 Case 9:13-cv-81053-KLR Document 24 Entered on FLSD Docket 12/04/2013 Page 3 of 3 I HEREBY CERTIFY that a true & correct copy of this Motion was furnished via electronic filing, U.S. Mail and e-mail to the following parties on December 4, 2013: defense counsel, Christopher Stearns; Esq., 2455 E. Sunrise Blvd., Suite 1000, Fort Lauderdale, Florida 33304 (stearns@jambg.com); Plaintiff, Christopher O'Hare, 2520 Avenue Au Soleil, Gulf Stream, Florida 33483 (ninegdftnail.com), and Plaintiff's in-house counsel, Louis Roeder, Esq., 7414 Sparkling Lake Road, Orlando, Florida 32819 (fou@louroeder.com). ROBERT S. GERSHMAN, ESQUIRE 2160 W. Atlantic Avenue, 2d FL Delray Beach, FL 33445 (561) 684-8898 (telephone) robert©rglawfirmais s// Robert Gershman ROBERT S. GERSHMAN Florida Bar No. 917397 3 Case 9:13-cv-81053-KLR Document 24-1 Entered on FLS0 Docket 12104!2013 Page 1 of 2 CHRIS OSARE, Plaintiff, vs, UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 13-CV-8I053-KLR TOWN OF GULF STREAM; TOWN OF GULF STREAM COMMISSION; TOWN MANAGER WILLIAM THRASHER, Town Manager, in his individual capacity and official capacity as the Town manager for the Town of Gulf Stream; TOWN SPECIAL MAGISTRATE LARA DONLON, Special Magistrate, in her individual capacity and official capacity as a Special Magistrate for the Town of Gulf Stream; OFFICER DAVID GINSBERG, Officer, in his individual capacity and official capacity as an Officer for the Town of Gulf Stream; SERGEANT ADAM GOREL, Sergeant, in his individual capacity and official capacity as an Sergeant for the Town of Gulf Stream; STEVEN TOBIAS, Building Official, in his individual capacity and official capacity as a Building Official for the City of Delray Beach; and MARTY MINOR, Planning Consultant, in his individual capacity and official capacity as a Planning Consultant for the Town of Gulf Stream. Defendants. THIS MATTER having come before the court upon Plaintiffs counsel, Robert Gershman's, Motion for leave of Court to withdraw his appearance in this action as attorney for Plaintiff, and to allow Plaintiff 30 days to obtain new counsel and 20 days thereafter to file appropriate pleadings, and the Court being otherwise fully advised herein, it is hereby: Case 9:13-cv-81053-KLR Document 24-1 Entered on FLSD Docket 12/04/2013 Page 2 of 2 ORDERED AND ADJUDGED that good cause having been shown, Attorney Robert Gershman's Motion for Leave of Court to withdraw as attorney of record is hereby GRANTED. Mr. Gershman is hereby relieved of all further responsibilities and obligations in this matter. It is further ORDERED AND ADJUDGED that Plaintiff shall be allowed 30 days to obtain new counsel and Plaintiffs new counsel shall have 20 days thereafter to file appropriate pleadings. It is further ORDERED AND ADJUDGED that Mr. Gershman shall be required to provide Plaintiff a copy of this Order, forthwith, and electronically file a notice of providing Plaintiff same. DONE AND ORDERED in West Palm Beach, Palm Beach County, Southern District of Florida, on December , 2013. Cc: attorneys of record Senior United States District Court Judge Kenneth Ryskamp 2 IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA CHRISTOPHER F. O'HARE, Plaintiff, V. TOWN OF GULFSTREAM, Defendant. CASE NO.: 2014CA000824 AD PLAINTIFF'S REQUEST FOR PRODUCTION FOR DEFENDANT Plaintiff, Christopher F. O Hare, ('Plaintiff'), pursuant to Rule 1.350 of the Florida Rules of Civil Procedure, requests the Defendant, the Town of Gulf Stream, ("Defendant" or the "Town"), to produce the following documents for inspection and/or copying within thirty (30) days of service of this Request at the law offices of THE O'BOYLE LAW FIRM, P.C., 1286 West Newport Center Drive, Deerfield Beach, FL 33442. Attention is directed to the "DEFINITIONS" and "INSTRUCTIONS" which are to be complied with in producing documents pursuant to this Rule 1.350 Request. CERTIFICATE OF SERVICE I HEREBY CERTIFY true and correct copies of the foregoing have been hand delivered this 7a' day of February, 2014. Respectfully Submitted, The O'Boyle Law Firm P.C., Inc. Attorneys for Plaintiff 1286 West Newport Center Drive Deerfield Beach, FL 33442 Telephone: (954) 574-6885 Facsimile: (954) 360-0807 rwitmer o lelawfirm.com By: �YsL Ryan . W er, fsq. Florida Bar #0107563 DEFINITIONS 1. The term "document' shall mean any kind of written, recorded or graphic matter, however produced or reproduced, of any kind or description, whether sent or received by the Plaintiff or neither, including originals, copies or drafts and both sides thereof, and including but not limited to: papers, books, letters, correspondence, telegrams, cables, facsimile transmissions, telex messages, memoranda, notes, notations, work papers, inter -office or internal memoranda, transcripts, minutes, reports and recordings of telephone or other conversations, or of interviews, or of conferences, or other meetings, affidavits, subpoenas, notices, statements, summaries, opinions, reports, studies, analyses, evaluations, contracts, agreements, journals, statistical records, desk calendars, appointment books, diaries, lists, tabulations, video recordings, sound recordings, computer print-outs, computer software and discs, data processing input and output, microfilms, and other records kept by electronic, photographic, or other mechanical means, minutes of meetings of board of directors, executive committees, or any other writings or recordings similar to any of the foregoing, however denominated by the Responding Party or its present or former partners, attorneys, counsel, accountants, auditors, agents, employees and all persons acting or previously acting on its behalf. The term "document' includes all of the above materials, whether asserted privileged or not. 2. The use of a verb in any tense shall be construed as the use of a verb in all other tenses, whenever necessary to bring within the scope of the specification all responses which might otherwise be construed to be outside its scope. 3. Terms in the singular include the plural and terms in the plural include the singular. 4. The term "relating to" as used herein is defined to mean referring to, evidencing, pertaining to, consisting of, reflecting, concerning or in any way logically or factually connected with the matter discussed. 5. "And" as well as "or" shall be construed either disjunctively or conjunctively as necessary to bring within the scope of the specification all responses which might otherwise be construed to be outside its scope. "Each" and "every" shall be construed synonymously, as shall the words "any" and "all„ 6. The terms "Defendant," "you," "your," or any synonym thereof are intended to and shall embrace and include Defendant including its present and former legal representatives, subsidiaries, divisions, departments, affiliated companies, successors and assigns, as well as their respective officers, directors, employees, agents, attorneys and any others who are in possession of or may have obtained information or documents for or on behalf of the Defendant. INSTRUCTIONS 1. Manner of Production - Documents produced pursuant to this request shall be separately produced for each paragraph of this request, or, in the alternative, shall be identified as complying with the particular paragraph or paragraphs of the request to which they are responsive, if the documents produced by inspection are produced as they are kept in the usual course of business. 2. Privileged Documents - In the event the responding party wishes to assert attorney/client privilege, work product exclusion or any other privilege as to any document requested, then as to each such document subject to such assertion, the responding party shall provide an identification of the document, including a) the nature of the document, b) the date of the document, and c) the author, sender, and recipient, together with a summary statement of the subject matter of such document in sufficient detail to permit the Court to reach a ruling in the event of a motion to compel and an indication of the factual and legal basis for the assertion of the privilege. 3. Documents Not In Possession, Custody, or Control - If you are unable to produce any document requested, state the reasons why you are unable to produce such document. A negative response to any request without further explanation will be deemed to be your response that the requested document is not in your possession, custody, or control, as interpreted by controlling case law. 4. Documents No Longer In Possession, Custody, or Control - With respect to documents of which the Defendant once had possession, custody or control, but no longer has possession, custody or control, please identify the document and state why the document is no longer in the Defendant's possession, custody, or control and identify the person who currently has possession, custody or control of the documents. DOCUMENTS REQUESTED 1. Any and all reports, evaluations, recommendations and/or analysis submitted by any person who is expected to testify at the trial of this action. 2. Any and all recorded transcribed or written statements in any form, taken from any of Defendant's employees or any witness who has knowledge of the facts surrounding this instant action. 3. Any and all documents, charts, reports, memorandums, notes, drawing, graphs, or any other information upon which the Defendant relied upon in its delay and denial of both of Plaintiff's public records requests. 4. Any and all documents relating to the circumstances of the instant matter including, but not limited to, the incident report; attorney files; attorney invoices; memoranda discussing the circumstances of the instant case; and memoranda discussing the implementation of new procedures following the case. 5. Any and all documents identifying all personnel/employees who received Plaintiffs public records request on September 4, 2013. 6. Any and all documents identifying all personnel/employees who received Plaintiff's public records request on December 4, 2013. 7. Statements of any form given by Defendant's employees to anyone in Defendant's possession concerning the instant action. 8. Statements given by any witness or any other person who may have knowledge of relevant facts, with respect to the incident alleged in the Complaint, including those given at or near the time of the incident by Defendant's employees and while the facts of the incident were still fresh in the memory of the witness. 9. Any and all documents that support each affirmative defenses intended to be asserted by Defendant. **** CASE NUMBER 2014CA000824 DIVISION: AD **** G l — 7 cJ — Ztr /I Filing # 9431519 Electronically Filed 01/22/2014 03:29:59 PM - c o A /M Cfs #lz�� IN THE CIRUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA CHRISTOPHER F. O'HARE, Plaintiff, V. Case No.: TOWN OF GULF STREAM, Defendant. SUMMONS THE STATE OF FLORIDA To Each Sheriff of the State: 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 c_ JAN 23 2014 ___1 __, _ _ _ . Clerk of the Court 7 By: Deputy Clerk Michele Shepherd F 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) 574-6885 Facsimile: (954) 360-0807 rwitmer(a)oboylelawfirm.com By: /s/ Ryan L. Witmer Ryan L. Witmer, Esq. Florida Bar #0107563 Filing 4 9431519 Electronically Filed 01/22/2014 03:29:59 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.: 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 1, 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. 2 Note § 119.07(Ixa), Fla. Stat. 1 of 10 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. 8. Plaintiff is a "person" as that term is used in the Public Records Act. See § I I9.07(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 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 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 2of10 10. The Defendant has a duty to permit the inspection, copying, and photography of Defendant's public records by an -v 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 tern "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 Orem 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 Pmver & Light CompaiU, 372 So. 2d 420,425 (Fla. 1979). See also State es 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 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). '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 (the "Initial Request"). Said Initial Request is attached hereto and specifically incorporated herein as Exhibit A. 18. Seven days after receipt of the Initial Request, on September 11, 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 nex7 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. Fifty-five 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 part: Records associated with this address, 2586 Avenue Au Soleil, were destroyed pursuant to the Town's destruction schedule on January 31, 2013, documentation ofwhich can be provided for you at your reauesl. (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: A records disposition document or audit record of the records for this property destroyed on or about January 1, 2013. (the "Follow -Up Request"). Said Follow -Up Request is attached hereto and specifically incorporated herein as Exhibit D. 22. The Follow -Up Request contained the excerpted portion of the Second Response 5of10 stated in paragraph 19, above, and attached a copy of 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 Withholding of Public Records 25. The records being sought by Plaintiff are public records pursuant to Section 119.01 ](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 injuryl5 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. 30. Section 119.11 (1), Florida Statutes requires this matter be set for an immediate "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. 6of10 hearing.16 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 that constitutes a denial of access to public records under 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. Attornevs' Fees 36. 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. 16 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 18 and the Public Records Act; 19 (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 (f) 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 e See Footnote "1". 19 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 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. 8of10 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 rwitmerna.oboylelawfirm.com By: /s/ Ryan L. Witmer Ryan L. Witmer, Esq. Florida Bar #0107563 9of10 DATE FILED BEFORE THE APR 2 2 2015 STATE OF FLORIDA COMMISSION ON ETHICS COMMISSION ON ETHICS In re SCOTT W. MORGAN, ) Complaint No. 15-036 Respondent. ) PUBLIC REPORT AND ORDER DISMISSING COMPLAINT On Friday, April 17, 2015, the Commission on Ethics met in executive se$sion and considered this complaint for legal sufficiency pursuant to Commission Rule 34-5.002, F.A.C. The Commission's review was limited to questions of jurisdiction of the Commission and of the adequacy of the details of the complaint to allege a violation of the Code of Ethics for Public Officers and Employees. No factual investigation preceded the review, and therefore the Commission's conclusions do not reflect on the accuracy of the allegations of the complaint. The Commission voted to dismiss the complaint for lack of legal sufficiency, based on the following analysis: This complaint was filed by Christopher F. O'Hare of Gulf Stream, Florida. 2. The Respondent, Scott W. Morgan, allegedly serves as Mayor and as a member of the Town Commission for the Town of Gulf Stream. 3. The complaint alleges that the Respondent, who has expertise as a lawyer, managed legal matters on behalf of the Town. 4. Section 112.313(6), Florida Statutes, the only provision of the Code of Ethics which arguably is implicated, provides: MISUSE OF PUBLIC POSITION.—No public officer, employee of an agency, or local government attorney shall corruptly use or attempt to use his or her official position or any property or resource which may be within his or her trust, or perform his or her official duties, to secure a special privilege, benefit, or exemption for himself, herself, or others. This section shall not be construed to conflict with s. 104.31. For purposes of this provision, the term "corruptly" is defined as follows: "Corruptly" means done with a wrongful intent and for the purpose of obtaining, or compensating or receiving compensation for, any benefit resulting from some act or omission of a public servant which is inconsistent with the proper performance of his or her public duties. [Section 112.312(9), Florida Statutes.] 5. In order to indicate a possible violation of the statute, a complaint must allege, in a factual, substantive, nonconclusory manner, that a respondent engaged in conduct in his public capacity which was inconsistent with the proper performance of the respondent's public duties, that the respondent knew his conduct was wrong, and that the respondent engaged in the conduct in order to further a special privilege, benefit, or exemption for himself or another. Blackburn v. State. Commission on Ethics, 589 So. 2d 431 (Fla. I st DCA 1991). 6. The complaint fails to indicate possible violation of Section 112.313(6), Florida Statutes. Even if the Respondent (allegedly licensed to practice law in Pennsylvania), used his legal expertise on behalf of the Town in a manner that was, in the Complainant's view, beyond his duties as Mayor or Town Commissioner, the complaint contains no indication that the Respondent engaged in such conduct in order to further a special benefit for himself or another connected to him in a private capacity, as would support the "corruption" required by the statute.' 'To the extent the complaint alleges that the Respondent violated open government laws, such allegations are outside the jurisdiction of this Commission, as violations of the "Sunshine Law" carry criminal penalties and are enforced by agencies other than the Commission on Ethics. 2 Accordingly, this complaint is hereby dismissed for failure to constitute a legally sufficient complaint with the issuance of this public report. ORDERED by the State of Florida Commission on Ethics meeting in executive session on Friday, April 17, 2015. T1'7 i at,A aa, ofc)15 Date Rendered rq LINDA WKEE ROBISON Chair cc: Mr. Scott W. Morgan, Respondent Mr. Christopher F. O'Hare, Complainant 3