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
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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
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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
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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,
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Jim Smith
Attorney General
Prepared by:
Gerry Hammond
Assistant Attorney General
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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