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HomeMy Public PortalAboutPRR 16-2449Renee Basel From: Chris O'Hare <chrisoharegulfstream@gmail.com> Sent: Tuesday, December 27, 2016 6:22 AM To: Bill Thrasher; Renee Basel; Rita Taylor Subject: Public Record Request AGO 84-32 Attachments: AGO 84-32 APP 007_04.pdf Dear Custodian of Records, I request to inspect certain public records in the custody of the Town of Gulf Stream or in the custody of its agents or associated entities. While I am not statutorily obligated to explain why I want to inspect these records, I tell you it is for the purpose of informing myself of the historic and current workings of the Town of Gulf Stream and its associated entities, vendors, consultants, advisers, contractors and agents. The records I wish to inspect may also be material to current, anticipated or presently unforeseen legal action. In addition, inspection of these records may be essential to my ability to make informed comments in an upcoming public hearing. The production of any and all responsive records is therefore urgent and must be acted upon in compliance with Florida Statutes and established case law as soon as possible. I make this request pursuant to Article 1, Section 24 of the Florida Constitution and Chapter 119 of the Florida Statutes. I hereby reserve all rights granted to me under the Florida Constitution and Florida Statutes. I ask that you take the following action: • Read this entire request carefully and respond accordingly. • If you are not the custodian of the public records described herein please determine who that person is and notify me immediately in order that I may make this request to the appropriate person without delay. • Reference Florida Statutes and appropriate case law when responding to this record request. • Do NOT produce any records other than records responsive to this request. • Identify by name the person or persons responding to this request if that person is not the Custodian of Records for your agency as required by 119.07(1)(b). • Respond to this public record request in a singular manner and do not combine this request with any other public record requests when responding to this request. • Once you have determined that you do or don't have any records in your custody responsive to this request, immediately act to obtain any responsive records that may be in the custody of your contractor(s) or other parties. • Provide only those records for inspection that do not require extensive use of information technologies or extensive staff time or both in excess of 15 minutes. If records responsive to this request are not presently available but you expect that they will soon be available I request that you produce the records as soon as they are available. I ask you to take note of §119.07(1)(c) Florida Statues and your affirmative obligation to (1) promptly acknowledge receipt of this public records request and (2) make a good faith effort which "includes making reasonable efforts to determine from other officers or employees within the agency whether such a record exists and, if so, the location at which the record can be accessed." I am, therefore, requesting that you notify every individual and entity in possession of records that may be responsive to this public records request, including individuals and entities under contract with your agency, to preserve and produce all responsive records on an immediate basis. If you contend that any of the records I am seeking, or any portion thereof, are exempt from inspection or disclosure please cite the specific exemption as required by §119.07(1)(e) of the Florida Statutes and state in writing and with particularity the basis for your conclusions as required by §119.07(1)(f) of the Florida Statutes. Produce for my inspection all responsive records and ONLY redact that portion of the record that you consider exempt. To be clear, if you consider an entire record to be exempt, produce that record in its entirety with all portions redacted that you consider exempt. I specifically ask you to do this in order that I may inspect fully redacted records for the purpose of challenging a particular redaction or establishing a reference for a future request of a record that is only temporarily exempt, as in the case of a public record that was prepared by an agency attorney exclusively for litigation and is only exempt from disclosure until the conclusion of the litigation. If the public records being sought are maintained by your agency or contactors for your agency, in an electronic format please produce the records in the original electronic format in which they were created or received. See §119.01(2)(f), Florida Statutes. Again I ask that you provide only those records for inspection that do not require extensive use of information technologies or extensive staff time or both in excess of 15 minutes. Take note of §119.07(4)(a)3.(d) Florida Statues and if you anticipate that any records exist, the production for inspection of which will require extensive use of information technologies or extensive staff time or both in excess of 15 minutes, then please provide those records that can be produced within the first 15 minutes and advise me of the cost you anticipate to be incurred by your agency for the remaining records prior to incurring this cost. Please do not incur any costs on my behalf without first obtaining my written authorization to proceed. If you produce only a portion of all existing responsive records, please tell me that your response includes only a portion of all existing records responsive to this request. If you anticipate the need to incur any costs that I would be statutorily required to pay in order to inspect these public records which would exceed $1.00 please notify me in advance of your incurring that cost 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. Again, please do not incur any costs on my behalf without first obtaining my written authorization to proceed. A record that does not exist because of its disposition requires the creation of a disposition record. In all instances where you determine a record does not exist please determine if the record once existed and in its replacement provide the disposition record for my inspection. As background to this request I call your attention to the public record attached to this email. This record is a four page published Advisory Legal Opinion of the Florida Attorney General Number AGO 84-32 which was apparently downloaded from http://myfloridalepal.com/aao.nsf/printview/486093F9C929D04A85256583006C8F9C on 4/12/2007. It is located on pages 54 - 57, 58 - 61, 62 - 65, 66 - 69, 70 - 73, 74 - 77, and 78 - 81 of the file located on the Town of Gulf Stream web site at http://www2.gulf- stream.orq/weblink/0/doc13743/Page1.as px. I request to inspect any public record* in the custody of the Town of Gulf Stream **the subject of which is partially or substantially related to the downloading of, or the contents of, AGO 84- 32 which is referenced above. Specifically, I want to inspect any record associated with the downloading of this opinion by the Florida Attorney General such as any communication, letter, email, police report, incident report, memo, or any other public record that documents the causation of AGO 84-32 to be downloaded or that references the downloading of, or the contents of, AGO 84-32 as referenced above. Please do not include in your production any records published on the Town of Gulf Stream web site at http://www2.gulf-stream.orq/weblink/0/doc/3743/Pagel.aspx as I have already inspected those records. *The term public records, as used herein, has the same meaning and scope as the definition of Public records adopted by the Florida Legislature as Statutes Chapter 119. **The phrase Town of Gulf Stream when used herein refers to the Town in its entirety and all entities of the Town including all employees, appointees, officials, assignees, counsel and consultants including Town Manager, Town Clerk, Town Police Chief, Town Commissioners, Town Mayor, Town Departments, Town Police Officers, Town Employees, Town Staff Attorney, Town Engineer, the law firm (Jones Foster Johnston & Stubbs P.A.) that claims to be the Town Attorney including all attorney, partner and employee members of that firm; the Town Counsel of Sweetapple, Broeker & Varkus including all attorney, partner and employee members of that firm, the Town Counsel 3 of Richman Greer, P.A. including all attorney, partner and employee members of that firm and any other entity associated with the Town and subject to public records law. If you do not understand any part of this request or if you need clarification about this request, notify me as soon as possible so I may further describe or clarify this request. Due to issues of delivery failure and occasional rejection by your server this email is being sent to multiple recipients to insure prompt delivery. All responses to this public records request should be made in writing to the following email address: chrisoharegulfstream@gmail.com 1Au.v16VLy 1.cga1 v111u1uu - ruspecwrs emermg private property Page I of Florida Attorney General Advisory Legal Opinion Number: AGO 84-32 Date: April 2, 1984 Subject: Inspectors entering private property Mr. Maynard A. Gross Town Attorney Town of Medley Suite 200, Dadeland West 10651 North Rendall Drive Miami, Florida 33176 Dear Mr. Gross: This is in response to your request for an Attorney General's Opinion on substantially the following question: WHETHER A MUNICIPAL CODE INSPECTOR IS AUTHORIZED BY LAW TO ENTER ONTO PRIVATE PREMISES TO CONDUCT INSPECTIONS OR ASSURE COMPLIANCE WITH LOCAL TECHNICAL CODES WITHOUT THE CONSENT OF THE OWNER OR OCCUPANT OR HAVING FIRST PROCURED A WARRANT? This request has been submitted on behalf of the Mayor and Town Council of the Town of Medley. According to your letter the Town of Medley enacted an ordinance in 1981 pursuant to former Ch. 166, F.S. (now Ch. 162, F.S.) which created a code enforcement board. Concern has been expressed recently regarding the authority of a municipal code inspector to inspect private premises to which the officer was denied access or, once on such premises, the officer was requested to leave. Your inquiry generally refers to "premises" without distinction between business premises and private residential premises. The intent of the "Local Government Code Enforcement Boards Act," ss 162.01-162.13, F.S., is to protect and improve the health, safety and welfare of county or municipal citizens by authorizing the creation of administrative boards to provide an equitable, expeditious, effective and inexpensive method of enforcing county or municipal technical codes. Section 162.02, F.S. The local code inspectors are the authorized agents or employees of the county or municipality responsible for assuring code compliance Is 162.04[2], F.S.), whose duty it is to initiate enforcement proceedings of the various codes Is 162.06, F.S.). No member of the code enforcement board has the hfp://myfloridalegal.com/ago.nsP/printview/486093F9C929DO4A85256583006C8F9C 4/12/2007 .Au visuiy 1,cgai upimun - inspectors entering private property Page 2 of 4 power to initiate such enforcement proceedings. Section 162.06(1), F.S. Such assurance of code compliance and enforcement proceedings apply or pertain to any building or premises, commercial or residential, subject to the technical codes described in s 162.02, F.S. The Fourth Amendment to the United States Constitution, made applicable to the states through the due process clause of the Fourteenth Amendment, Mapp v. Ohio, 367 U.S. 643, reh. den., 368 U.S. 871 (1961), guarantees to all persons the right of privacy free from unreasonable state intrusion. In addition, s 12, Art. I, State Const., provides protection from unreasonable searches and seizures: The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, and against the unreasonable interception of private communications by any means, shall not be violated. No warrant shall be issued except upon probable cause, supported by affidavit, particularly describing the place or places to be searched, the person or persons, thing or things to be seized, the communication to be intercepted, and the nature of evidence to be obtained. This right shall be construed in conformity with the 4th Amendment to the United States Constitution, as interpreted by the United States Supreme Court. ... Administrative searches or inspections such as those under consideration in the instant inquiry, which are conducted outside the judicial process without consent and without prior approval (as evidenced by an administrative search warrant) are not reasonable, unless a showing can be made that the administrative search or inspection falls within one of the well-established exceptions to this rule. See, e.g., See v. City of Seattle, 387 U.S. 541 (1967); United States v. Sokolow, 450 F.2d 324 (5th Cir.1971); Benton v. State, 329 So.2d 385 (1 D.C.A.Fla., 1976); Parsons v. State, 334 So.2d 308 (1 D.C.A.Fla., 1976); and AGO 82-7. CF., Colonnade Catering Corp. v. United States, 397 U.S. 72 (1970), and Michigan v. Tyler, 436 U.S. 499 (1978). Both business or commercial premises and private residences are afforded protection from unreasonable searches by s 12, Art. I, State Const., and the Fourth Amendment to the U.S. Constitution. See, See v. City of Seattle, supra, in which the U.S. Supreme Court held that administrative inspections of commercial structures as well as private residences are forbidden by the Fourth Amendment when conducted without a warrant; and Jones v. City of Longwood, Florida, 404 So.2d 1083 (5 D.C.A.Fla., 1981), in which the court, in a wrongful death action, stated that an ordinance requiring the building inspector and fire.chief to periodically inspect all buildings and structures within the city was qualified by the Fourth http://myfloridalegal.com/ago.nsf/printview/486093F9C929D04A85256583006C8F9C 4/12/2007 rIVVIi ,Uiy Legai vpimon - inspectors entering private property Page 3 of 4 Amendment and could not authorize inspection of private property without a warrant. A limited exception to the "administrative warrant" requirement has been established by the United States Supreme Court, holding that, even in the absence of consent, an administrative inspection may be made without a warrant if the business searched is one in which there is a legitimate public interest in close regulation and if the search is conducted under the authority of a statute meeting certain specificity requirements. United States v. Biswell, 406 U.S. 311 (1972). See also, Colonnade Catering Corp. v. United States, supra; Donovan v. Dewey, 452 U.S. 594 (1981). Compare, e.g., ss 455.243, 465.017, F.S.; Olson v. State, 287 So.2d 313 (F1a.1973). No such statutory authority for warrantless searches appears to exist with regard to local code enforcement boards or code inspectors. Therefore, the administrative searches or inspections under consideration may not be constitutionally conducted without the consent of the owner or the operator or occupant of the affected premises or without a duly issued search or administrative inspection warrant. The Florida Statutes, however, now make provisions for the procurement and issuance of "inspection warrant(s)" which authorize a state or local official to conduct an inspection of any building, place or structure, other than an owner -occupied family residence, as authorized or required by state or local law or rule relating to municipal or county building, fire, safety, plumbing, electrical, health, minimum housing, or zoning standards. See, ss 933.20-933.30, F.S. Section 933.21, F.S., specifically provides that "[o)wner- occupied family residences are exempt from the provisions of (ss 933.20-933.30, F.S.)." As related to municipal or county building, fire, safety, plumbing, electrical, health, minimum housing or zoning standards, all other places, dwellings, structures or premises are subject to the provisions of ss 933.20-933.30, F.S. Therefore, it is my opinion that a municipal code inspector is without authority to enter onto any private, commercial or residential property to assure compliance with or to enforce the various technical codes of the municipality or to conduct any administrative inspections or searches without the consent of the owner or the operator or occupant of such premises or without a duly issued search or administrative inspection warrant. The procurement and issuance of administrative inspection warrants is governed by the provisions of ss 933.20-933.30, F.S. However, owner -occupied family residences are exempt from the provisions of ss 933.20-933.30, F.S., and as to those residences a search warrant or the prior consent and approval of the owner is required. Sincerely, http://myfloridalegal.com/ago.nsf/printview/486093F9C929D04A85256583006C8F9C 4/12/2007 t-%UVIsUiy i,cgai vpimun - inspectors entering private property Page 4 of 4 Jim Smith Attorney General Prepared by: Gerry Hammond Assistant Attorney General http://myfloridalegal.com/ago.nsf/printview/486093F9C929DO4A85256583006C8F9C 4/12/2007 TOWN OF GULF STREAM PALM BEACH COUNTY, FLORIDA Delivered via e-mail December 27, 2016 Chris O'Hare [mail to: chrisoharegulfstream(ia gmail.coml Re: GS #2449 (AGO 84-32) I request to inspect any public record* in the custody of the Town of Gulf Stream **the subject of which is partially or substantially related to the downloading of, or the contents of, AGO 84-31 which is referenced above. Specifically, 1 want to inspect any record associated with the downloading of this opinion by the Florida Attorney General such as any communication, letter, email, police report, incident report, memo, or any other public record that documents the causation of AGO 84-32 to be downloaded or that references the downloading of, or the contents of, AGO 84-31 as referenced above. Please do not include in your production any records published on the Town of Gulf Stream web site at http://www2.gulf-stream.orglweblink/0/doc/3743IPagel.aspx as I have already inspected those records. Dear Chris O'Hare [mail to: chrisoharegulfstreamla,gmail.coml: The Town of Gulf Stream has received your public records request dated December 27, 2016. The original public records request can be found at the following link: hqp://www2.gulf-stream.org/weblink/O/doc/104187/Pagel.aspx Please be advised that the Town of Gulf Stream is currently working on a large number of incoming public records requests. The Town will use its very best efforts to respond to you in a reasonable amount of time with the appropriate response or an estimated cost to respond. Sincerelyy,, F" As requested by Rita Taylor Town Clerk, Custodian of the Records TOWN OF GULF STREAM PALM BEACH COUNTY, FLORIDA February 10, 2017 Chris O'Hare [mail to: chrisoharegulfstream(agmail.coml Re: GS #2449 (AGO 84-32) I request to inspect any public record* in the custody of the Town of Gulf Stream **the subject of which is partially or substantially related to the downloading of, or the contents of, AGO 84- 32 which is referenced above. Specifically, I want to inspect any record associated with the downloading of this opinion by the Florida Attorney General such as any communication, letter, email, police report, incident report, memo, or any other public record that documents the causation ofAGO 84-32 to be downloaded or that references the downloading of, or the contents of, AGO 84-32 as referenced above. Please do not include in your production any records published on the Town of Gulf Stream web site at http://www2.gulf-stream. org/weblink/0/doc/3743/Pagel.aspx as I have already inspected those records. Dear Chris O'Hare [mail to: chrisoharegulfstream(@grnail.com The Town of Gulf Stream has received your public records requests dated December 27, 2016. You should be able to view your original request at the following link: htti)://www2.gulf-stream.org/weblink/O/doc/104187/Pagel.asRx The response to your request can be found at the following link: http://www2.gulf-stream.org/weblink/O/doc/82599/Pagel.asvx We consider this request closed. Sincerely, 344d As requested by Rita Taylor Town Clerk, Custodian of the Records